finding evidence insufficient on grounds D and E, but sufficient evidence under ground OSummary of this case from In re R.W.
On Appeal from the County Court at Law No. 2 Gregg County, Texas
Trial Court No. 2017-2055-CCL2 Before Morriss, C.J., Burgess and Stevens, JJ.
On the petition of the Texas Department of Family and Protective Services (Department), Matt's parental rights to L.G. were terminated on multiple statutory grounds. On appeal to this Court, Matt challenged the legal and factual sufficiency of the evidence to support the various findings of the statutory grounds for termination and the best-interest finding. He also asserted that, because of his poverty, applying statutory grounds (F), (N), and (O) to him violated the Equal Protection and Due Process Clauses of the United States Constitution, and the Due Course of Law Clause of the Texas Constitution. We affirmed the judgment of the trial court, because (1) sufficient evidence supported termination based on ground (O), (2) sufficient evidence supported the best-interest finding, and (3) Matt had not shown that ground (O), as applied to him, was unconstitutional. In re L.G., No. 06-18-00099-CV, 2019 WL 1548925 (Tex. App.—Texarkana Apr. 10, 2019), aff'd in part & rev'd in part, 596 S.W.3d 778 (Tex. 2020). Relying on prior precedent, we declined to consider Matt's other issues challenging the termination of his parental rights under statutory grounds (D), (E), (F), and (N). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) ("Only one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest.").
In this opinion, we will refer to the minor children by their initials and to their family members by pseudonyms. See TEX. R. APP. P. 9.8(b)(2).
The trial court found that the grounds set forth in subsections (D), (E), (F), (N), and (O), of Section 161.001(b)(1) supported termination of Matt's parental rights. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (F), (N), (O) (Supp.).
See TEX. FAM. CODE ANN. § 161.001(b)(1) (Supp.).
See TEX. FAM. CODE ANN. § 161.001(b)(2) (Supp.).
See U.S. CONST. amend. XIV, § 1.
See TEX. CONST. art. 1, § 19.
After our opinion issued, the Texas Supreme Court decided In re N.G., 577 S.W.3d 230 (Tex. 2019). In that opinion, the court held that, when a trial court bases termination of parental rights on multiple statutory grounds that include grounds (D) or (E), due process and due course of law require that an appellate court detail its analysis of the trial court's findings under grounds (D) or (E) when those grounds are challenged on appeal, even if termination of parental rights is affirmed on another statutory ground. Id. at 237. Consequently, that court granted Matt's petition for discretionary review in this case, which included a complaint that we had failed to provide a detailed analysis of the trial court's findings under grounds (D) and (E). L.G., 596 S.W.3d at 779. Although that court affirmed our judgment as to the termination of Matt's parental rights, it remanded this case for our consideration of the trial court's termination of Matt's parental rights under grounds (D) and (E). Id. at 780-81.
In his second and third issues on appeal, Matt challenges the legal and factual sufficiency of the evidence supporting the termination of his parental rights under statutory grounds (D) and (E). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). "The natural right existing between parents and their children is of constitutional dimensions." In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). "Indeed, parents have a fundamental right to make decisions concerning 'the care, custody, and control of their children.'" Id. (quoting Troxel v. Granville, 530 U.S. 57, 65 (2000)). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial." Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). This Court is required to "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. (quoting A.B., 437 S.W.3d at 500). "[I]nvoluntary termination statutes are strictly construed in favor of the parent." Id. (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied); Holick, 685 S.W.2d at 20)).
"In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest." Id. (citing TEX. FAM. CODE ANN. § 161.001 (Supp.); In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). "'Clear and convincing evidence' is that 'degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.'" Id. (quoting TEX. FAM. CODE ANN. § 101.007 (citing In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). "This standard of proof necessarily affects our review of the evidence." Id.
"In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven." In re L.E.S., 471 S.W.3d 915, 920 (Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). "We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted." Id. (citing J.P.B., 180 S.W.3d at 573).
"In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." Id. (citing In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam)). "We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine 'whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the . . . allegations.'" Id. (quoting H.R.M., 209 S.W.3d at 109; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)) (citing In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002)). "If, in light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. (quoting J.F.C., 96 S.W.3d at 266). In making this determination, we undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." Id. (quoting A.B., 437 S.W.3d at 503; C.H., 89 S.W.3d at 26).
"Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, 'the rights of natural parents are not absolute; protection of the child is paramount.'" Id. (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003); In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994) (citing In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26)).
In our original opinion, we affirmed the trial court's judgment based on statutory ground (O) and set forth the facts of the case as relevant to that ground. See L.G., 2019 WL 1548925, at *2-4. We repeat those facts insofar as they may be relevant to statutory grounds (D) and (E):
The record shows that L.G., who was in the sole custody of her mother, Kay, was removed from the home because both L.G. and Kay tested positive for marihuana and cocaine. Kay admitted to an ongoing use of marihuana, and cocaine use for four months. In addition, it was found that Kay would leave L.G. with a man she had known for only a few months and who also smoked marihuana.
At the time of L.G.'s removal, Matt had not seen Kay and L.G. for about seven months. He consistently denied any knowledge of Kay's drug use throughout the case. Before and during the pendency of the case, Matt lived in Cameron, Texas. As a result, the Department provided him with a courtesy caseworker located near Cameron.
The evidence also showed that Matt had visual and auditory problems, a considerable degree of disability, and depression and post-traumatic stress disorder. Matt spent nine and one-half years in prison for burglary, and he was released in 1999. He had a twenty-six-year-old daughter and three teenage children who lived with their mother in San Antonio. Matt estimated that he was $25,000.00 behind on his child support obligations. Although Matt claimed to have contact with his other children, his psychologist testified that their mother's Facebook postings contradicted that claim. Matt also claimed that he was a very committed and involved parent, but his psychologist opined that Matt's lack of contact with L.G. during the pendency of this case contradicted that claim and that Matt was a highly questionable parental resource.
The Department and Matt agreed to a family service plan (FSP) on November 15, 2017. The Department reviewed it with him by telephone, and his attorney, who also attended, signed the FSP on Matt's behalf. Under the plan, Matt was required to participate in family visitations, maintain regular contact with his caseworker, maintain safe housing, undergo a psychological evaluation, participate in individual counseling, take parenting classes, complete his FSP, and other things. Matt acknowledged that it was explained to him at that time that, if he did not complete the services set forth in the FSP, he could lose his parental rights. The trial court approved the FSP and made it an order of the court on December 19, 2017. Matt signed the FSP that same day.
The Department's caseworker, Carla Carpenter, testified that Matt had not completed his counseling or parenting classes and had not provided safe housing. She testified that the FSP allowed visitation one time each month and that the Department had made arrangements for Matt and L.G. to meet at a location halfway to Cameron. However, the last time Matt had visited L.G. was in April 2018, and the last time Carpenter had tried to arrange a visit was in August, but she never received any confirmation from Matt that he was available.
Carpenter also testified that L.G. needs special services, such as occupational and physical therapy, that are essential to her emotional and physical development. L.G. also has extensive medical and medication needs. Carpenter testified that Matt had not contacted her to ask about any of L.G.'s medical or therapy needs. She also testified that both Kay and Matt knew that L.G. had severe medical problems since birth, but that they had not allowed her to have the medical care and therapies she needs. Carpenter testified that the Department was seeking termination of Matt's parental rights mainly for his failure to complete his service plan and that it was in the best interest of L.G.
On cross-examination, Carpenter acknowledged that Matt had never tested positive for drugs and that drugs were not a concern. She also testified that Matt had told her that he was dependent on his roommate, who had a single cab pickup, for transportation.
Lynsey Taylor, Matt's courtesy caseworker, testified that Matt lived in a one-bedroom apartment with a roommate. The roommate slept in the living area, and Matt and L.G. would sleep in the bedroom. Matt had clothes, toys, and a separate bed for L.G. Taylor had contact with Matt until August.
Taylor testified that the Department had made all the necessary referrals for services. She also testified that Matt had missed three drug tests, had not completed his counseling or his parenting classes, and had not visited L.G. since April. In August, she talked to Matt about employment, and he said he was not working because his doctor said he could not. When she asked him to provide a note from his doctor, he said he would if his primary caseworker requested it. Taylor testified that Matt had not provided her information showing he could financially provide for L.G., but that he had also told her that he was pursuing a disability claim. Matt also told her that, if L.G. were placed in his care, he would be awarded an apartment at the Housing Authority and that he and L.G. would qualify for Medicaid. Taylor also testified that Matt claimed to have a problem getting in contact with his primary caseworker, but that she had never had a problem doing that. She also
testified that, although Matt told her he could borrow a neighbor's van, when he missed his drug tests he claimed he did not have transportation.
Karen Kauffman, a licensed clinical psychologist, testified that she began Matt's treatment with protective parenting and sent him to an online parenting class. Although Matt was very conscientious at first, he had not made any appointments since July 18 and had not reached out to her to complete his counseling since then. She believed that he got disheartened when he did not receive his disability. Kauffman also testified that Matt got angry when she suggested that his oldest daughter could assist him with childcare, although Kauffman believed he was angry with his circumstances, not with her. Kauffman would not express an opinion about his parenting ability, but she expressed concern that he may not be able to provide the necessary care for L.G. because of his housing, his lack of visible means of support, and his inability to take care of himself. She also testified that Matt had not completed any services with her.
Matt testified that he completed his DNA testing and psychological evaluation and that he was working on the parenting classes. He admitted that he had no excuse for not completing his counseling and parenting classes. Although he claimed he could get Texas Temporary Assistance for Needy Families (TANF) benefits for L.G., if she were placed with him, he acknowledged that he may not be eligible without completing his parenting classes. He also acknowledged reacting incorrectly towards Kauffman, but explained that he was frustrated with his situation. He said he should have contacted her, but he thought she would be upset with him. He had not seen L.G. since April and claimed he stopped visitations because he had no transportation. He acknowledged, however, that the Department had provided resources to help him and arranged for visitation in Palestine. He also admitted that he had not contacted the Department recently to check on L.G., but claimed that he had the majority of the time. Matt acknowledged that it was his fault for not contacting anyone. He knew some of L.G.'s physical and developmental issues, but he did not know what therapies she was receiving, what behavioral issues she was having, or what medications she was taking. He also did not know L.G.'s birthday.
Although Matt acknowledged that he still had transportation and housing issues, he claimed that he was on a list to obtain a two-bedroom apartment and that a friend would provide transportation for L.G.'s doctor appointments. He claimed that he had been working at U-Haul since September and that his income varied; his last weekly paycheck was $265.29. He testified that he would be eligible for Medicaid if he got disability or if L.G. were placed with him and that he would also be able to get food stamps. Matt went to court on his disability claim in early August and was still waiting on a decision. He claimed that, if the decision were
favorable, he would be able to get housing and transportation. He asserted that his disability attorney had told him that he would probably prevail on his disability claim.Id. In addition, Jennifer James, who investigated the case on behalf of the Department, testified that Kay said that Matt was physically abusive to her. However, there was no testimony regarding any instance of physical abuse by Matt, and James did not investigate Kay's abuse allegation. James also testified that Matt told her that the last time he saw Kay, she tried to kill him by giving him too much medication. Carpenter testified that this allegation had not been verified and admitted that Matt may have made it up.
Stacey Wicke, with whom L.G. is placed, testified that, when L.G. came to her in March 2018, she could not talk and was barely walking. L.G. was very frustrated because she was not able to express her needs and had a lot of temper tantrums. Her pediatrician and therapies have helped L.G. improve, so she had begun saying little sentences, but was still behind. Wicke testified that, at the time of the hearing, L.G. was doing very well, was thriving, and was very determined.
The termination hearing took place on October 19, 2018 (footnote in original).
L.G. was two years old at the time (footnote in original).
Matt testified that, when Kay was living with him, she was not using drugs. He said that she left his house in San Antonio with L.G. while he was in the hospital. He said he contacted Kay's family members and her ex-husband trying to find Kay and L.G. but that no one knew their whereabouts. He also testified that he was concerned about L.G.'s safety because Kay was violent towards L.G. and him. However, Matt did not testify to any instances of violence and cited only to the fact that she left him while he was in the hospital. On further questioning, he acknowledged that he was in the hospital because of an accidental overdose of medication. He explained that he had not been feeling well and asked Kay to give him his medication; the next thing he knew, he was in the hospital.
Matt also testified that, when L.G. was two months old, she had an angioplasty. He said that, while L.G. was living at his house, she had some developmental issues and that Early Childhood Intervention (ECI) had been involved to help him with occupational and physical therapy.
Grounds for Termination
Ground (D) allows termination of parental rights when the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Ground (E) allows termination of parental rights when the parent has "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Under both (D) and (E), endanger "means more than a threat of metaphysical injury or potential ill effects of a less-than-ideal family environment." E.N.C., 384 S.W.3d at 803. Rather, "'[e]ndanger' means to expose to loss or injury; to jeopardize." Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); L.E.S., 471 S.W.3d at 923; In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.). "It is not necessary that the conduct be directed at the child or that the child actually suffer injury." L.E.S., 471 S.W.3d at 923.
"Under [subsection (D)], we must examine the time before the children's removal to determine whether the environment itself posed a danger to the child's physical or emotional well- being." In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no pet.). "A child is endangered when the environment creates a potential for danger that the parent is aware of, but disregards." In re N.B., No. 06-12-00007-CV, 2012 WL 1605457, at *9 (Tex. App.—Texarkana May 8, 2012, no pet.) (mem. op.). "[S]ubsection (D) permits termination [of parental rights] based on a single act or omission [by the parent]." L.C., 145 S.W.3d at 797; see In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet. denied). "[A]busive or violent conduct by a parent or other resident of a child's home can produce an environment that endangers the physical or emotional well-being of a child." In re B.E.T., No. 06-14-00069-CV, 2015 WL 495303, at *5 (Tex. App.—Texarkana Feb. 5, 2015, no pet.) (mem. op.) (quoting In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied)).
"Similarly, 'a parent's failure to remove himself and his children from a violent relationship endangers the physical or emotional well-being of the children.'" B.E.T., 2015 WL 495303, at *5 (quoting In re I.G., 383 S.W.3d 763, 770 (Tex. App.—Amarillo 2012, no pet.) (citing D.O. v. Tex. Dep't of Human Servs., 851 S.W.2d 351, 354 (Tex. App.—Austin 1993, no writ), disapproved on other grounds by J.F.C., 96 S.W.3d at 267 ("finding evidence of child's residence in unstable household where violence frequently occurred and where ex-felons engaged in ongoing criminal activity resided was sufficient to sustain termination based on finding parent allowed child to remain in surroundings that endangered physical or emotional well-being")). "Moreover, illegal drug use by a parent likewise supports the conclusion that the children's surroundings endanger their physical or emotional well-being." L.E.S., 471 S.W.3d at 925 (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)); see N.B., 2012 WL 1605457, at *9.
"Under subsection (E), it is sufficient that the child's well-being is jeopardized or exposed to loss or injury." L.E.S., 471 S.W.3d at 923 (citing Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 367). "Further, termination under subsection (E) must be based on more than a single act or omission. Instead, a 'voluntary, deliberate, and conscious course of conduct by the parent is required.'" Id. (quoting Perez v. Tex. Dep't of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.) (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.)); see Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 366-67. A fact-finder "can 'consider the history of abuse between the mother and the father for purposes of subsection . . . (E), even if the children are not always present.'" In re Z.M., 456 S.W.3d 677, 686 (Tex. App.—Texarkana 2015, no pet.) (quoting In re A.V.M., No. 13-12-00684-CV, 2013 WL 1932887, at *5 (Tex. App.—Corpus Christi May 9, 2013, pet. denied) (mem. op.)).
The evidence in this case showed that, at the time of her removal, L.G. had been in Kay's exclusive possession for around seven months and that Matt had no knowledge of their whereabouts. The stated grounds for removal were that both Kay and L.G. tested positive for cocaine and marihuana, Kay's admission to ongoing use of marihuana and cocaine use for four months, and Kay's leaving L.G. in the care of a man she had only known for a short period of time and who she knew also smoked marihuana. This environment endangered L.G.'s physical and emotional well-being. However, the evidence did not show, and the Department does not contend, that Matt knew about Kay's substance abuse or L.G.'s living conditions. There was also no evidence of any substance abuse by Matt or Kay when L.G. was in their joint care before this seven-month period. Thus, there is no evidence that Matt knowingly placed or knowingly allowed L.G. to remain in the endangering environment or that L.G. was in that environment as a result of Matt's course of conduct.
Nevertheless, the Department argues that the trial court's findings under statutory grounds (D) and (E) are supported by evidence that showed (1) that Matt was physically abusive toward Kay, (2) that Kay was violent toward L.G. and Matt, and (3) that Matt did not make sufficient efforts to locate and remove L.G. from Kay's possession when he knew of Kay's violent conduct. We disagree.
The only testimony that Matt was physically abusive to Kay came from the Department's investigator who testified that Kay had made this allegation. However, there was no testimony detailing any specific instance of abuse by Matt. There was no evidence of the factual circumstance comprising the alleged abuse or how often it occurred. Thus, this statement is conclusory. See In re T.A.D., No. 14-16-00717-CV, 2017 WL 924550, at *4 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet.) (mem. op.) ("A 'conclusory' statement is defined as '[e]xpressing a factual inference without stating the underlying facts on which the inference is based.'") (quoting La China v. Woodlands Operating Co., L.P., 417 S.W.3d 516, 520 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (quoting Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008) (citing BLACK'S LAW DICTIONARY 308 (8th ed. 2004))). Because "[c]onclusory statements are not evidence," they "cannot support a judgment." In re L.C.L., 599 S.W.3d 79, 85 (Tex. App.—Houston [14th Dist.] 2020, no pet. h.) (en banc op. on reh'g) (citing A.H., 414 S.W.3d 802, 807). Since Kay's physical-abuse allegation against Matt is conclusory, it is not more than a scintilla of evidence of physical abuse committed by Matt.
Similarly, the only testimony that Kay was violent toward L.G. was one statement by Matt. Again, there was no testimony detailing any specific instance of violence against L.G., the factual circumstance comprising the alleged violence, or how often it occurred. In addition, there was no testimony that L.G. exhibited any physical or emotional signs that she had been physically abused by the violent acts of Kay. Since Matt's statement is not supported by any factual evidence showing that Kay was violent toward L.G., this statement was also conclusory and is no more than a scintilla of evidence of physical abuse committed by Kay.
Matt also alleged that Kay had been violent to him. To support that claim, he stated that Kay left him while he was in the hospital. The investigator testified to Matt's claim that Kay had tried to kill him with too much medication. However, when Matt testified about the hospital incident, he acknowledged that he had been in the hospital because of an accidental overdose and explained that he had asked Kay to give him his medication and, after she did, he awoke in the hospital. There was no testimony regarding what medication Kay had given him, how much she had given him, whether or not she knew the proper dosage to give him, or how Matt got to the hospital.
Matt's allegations that Kay was violent to him and tried to kill him were conclusory, unless they are supported by underlying facts. See Arkoma Basin Expl., 249 S.W.3d at 389 n.32. Matt's testimony regarding the hospital incident, without more, would not support an inference that Kay intentionally or knowingly gave Matt an overdose of his medications. There was no other testimony detailing any violence by Kay against Matt. Thus, Matt's conclusory testimony was no more than a scintilla of evidence that Kay was violent towards him.
Domestic violence and the failure of a parent to remove himself and his children from a violent household can endanger the emotional and physical well-being of a child and will support a termination of parental rights under statutory grounds (D) and (E). See B.E.T., 2015 WL 495303, at *5; Z.M., 456 S.W.3d at 686. In this case, the allegations of domestic violence were all conclusory and not supported by any underlying facts showing that any domestic violence occurred. Thus, there was no more than a scintilla of evidence of domestic violence. Consequently, there was also no more than a scintilla of evidence that domestic violence, or that Matt's failure to remove L.G. from a violent household, endangered L.G.'s emotional and physical well-being. Therefore, the trial court's finding under statutory grounds (D) and (E) cannot be supported on the basis of domestic violence or Matt's failure to remove L.G. from a violent household.
The Department also argues that Matt's housing instability and lack of stable employment before and during the pendency of the case supported the trial court's finding that Matt endangered L.G.'s physical and emotional well-being under statutory ground (E). The Department cites three cases in support of its argument. In two of the cases cited by the Department, neither housing instability nor lack of stable employment were part of the court of appeals' analysis under statutory ground (E). See In re D.O., 338 S.W.3d 29, 34-37 (Tex. App.—Eastland 2011, no pet.); In re R.W., 129 S.W.3d 732, 739-44 (Tex. App.—Fort Worth 2004, pet. denied). In the third case, the Fort Worth Court of Appeals considered both housing instability and the appellant's lack of employment history as factors that the trial court could rely on to find endangerment. In re S.I.H., No. 02-11-00489-CV, 2012 WL 858643, at *5 (Tex. App.—Fort Worth Mar. 15, 2012, no pet.) (mem. op.). However, in that case, the evidence showed that, because of the appellant's neglect before removal, the child had suffered multiple injuries, including a very misshapen head, drooping on the left side of his face, and tooth decay. Id. at *4. The child also had significant developmental and emotional problems related to the appellant's neglect. Id. at *5. In addition, appellant would leave the child with a woman, Ward, whom appellant knew had a substantial history of substance abuse, psychotic issues, and suicide attempts. Appellant continued to leave the child with Ward even though she knew that Ward would tie the child to a car seat in her house to restrain him. Id. The evidence also showed that, before the child's removal by the Department, appellant left the child with Ward and went "off with a boyfriend somewhere," although appellant claimed she was looking for a house and a job. Id. at *1. The child was removed because the Department feared she had abandoned the child. Id. During the pendency of the case, appellant was homeless at times, stayed with friends at other times, and refused to tell her caseworker her residence addresses. Id. at *2. The court also indicated that the appellant lacked any employment history. Id. at *5.
Thus, in S.I.H., there was significant evidence that the acts and omissions by the appellant before removal had caused significant injuries to the child and that her leaving the child with Ward, whom she knew was not capable of properly caring for the child, had endangered the child both physically and emotionally. Her homelessness and lack of employment both before and during the pendency of the case evidenced a continuing course of conduct that endangered the child and that had been firmly established while the child was still in appellant's care.
By contrast, in this case, there was no evidence that Matt abused or neglected L.G. while she was in his care. There was also no evidence that Matt failed to provide L.G. a stable home environment before Kay left with her. Further, the evidence showed that Matt maintained the same housing throughout the case and that he made provisions to accommodate L.G. Although his housing situation may not have been ideal, there was no evidence that Matt was in danger of losing it or that his housing situation would endanger L.G.'s physical or emotional well-being. Thus, unlike the evidence in S.I.H., there was no evidence in this case of a continuing course of conduct by Matt that showed he failed to provide L.G. with a stable home. Consequently, the trial court's findings under statutory ground (E) cannot be supported by housing instability.
Although Carpenter denied, "to [her] knowledge," that Matt allowed L.G. to have the therapies she needed, she did not testify what, if anything, she did to investigate this issue and did not testify as to the basis of her knowledge. According to Matt's testimony, L.G. had been receiving therapeutic services while she had been under his care.
The evidence regarding Matt's employment while L.G. was under his joint care was scant. Matt testified that he was employed during this time, although he had also been pursuing his disability claim. The Department did not put on any evidence to dispute this testimony. There was also no evidence that Matt was not able to adequately provide for L.G. while she resided with him and was under his joint care. The evidence did show that Matt was unemployed during most of the case. Matt's testimony regarding whether he was disabled from, or able to, work during that time was contradictory. However, the evidence also showed that he was pursuing a disability claim that, if successful, would have provided him a stable income. Matt also testified that, shortly before the trial, he began receiving some income from a U-Haul dealership, although it was not well-established at the time of trial. Thus, unlike S.I.H., there was no evidence that Matt lacked any employment history or that his then-current employment situation evidenced a course of conduct that endangered L.G. Consequently, we find that, under the clear and convincing evidence standard, there was legally insufficient evidence to support the trial court's findings of endangerment under statutory ground (E) based on employment instability.
The Department also contends that Matt's failure to attend a significant amount of visitation with L.G. during the case also supports the trial court's finding under statutory ground (E) that Matt emotionally endangered L.G. The Department argues that a failure to visit for several months and lack of parental contact can be very damaging, citing S.I.H. In that case, however, there was testimony from an expert witness that was asked about the effect on a child resulting from the lack of parental contact. The expert answered, "It's a huge impact. You know, children thrive on consistency. And if they don't have that, especially something as important as their parental relationship, it can be very damaging." Id. at *6. The court held that this evidence supported the trial court's finding of endangerment. Id. Again, as discussed above, the appellant's lack of visitation in S.I.H. was additional evidence of a continuing pattern of neglect.
Two of the cases cited by the Department in support of its argument do not hold that lack of visitation will support a finding of endangerment under statutory ground (E). See Carpenter v. Tex. Dep't of Family & Protective Servs., No. 03-06-00239-CV, 2008 WL 5423223 (Tex. App.—Austin Dec. 31, 2008, no pet.) (mem. op.); In re U.P., 105 S.W.3d 222 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh'g), overruled on other grounds by L.C.L., 599 S.W.3d at 85-86. In a third case, "sporadic, chaotic visitation" by the appellant was only one factor, including "prolonged, unchecked drug abuse" over a period exceeding four years while her children were in the care of the Department. In re R.M., No. 07-12-00412-CV, 2012 WL 6163100, at *4-5 (Tex. App.—Amarillo Dec. 11, 2012, no pet.) (mem. op.).
In this case, the only testimony regarding the importance of maintaining visitation came from Carpenter, the caseworker assigned to this case, whose education or training was largely unknown. She opined that maintaining visitation was "[v]ery important to maintain that bond with the child and keep that connection going." Carpenter did not testify as to the basis of this opinion. Consequently, this testimony was conclusory and "does not amount to more than a scintilla of evidence." L.C.L., 599 S.W.3d at 85 (quoting A.H., 414 S.W.3d at 807). We find there is legally insufficient evidence to support the trial court's finding under statutory ground (E) that Matt endangered L.G.'s emotional or physical well-being as a result of his missed visitation.
Carpenter testified only that, in her training, she learned the effects of child abuse and the emotional distress that it can have on children.
We do not mean to imply that Matt's failure to exercise his visitation rights was not concerning and could not support other findings made by the trial court. In our original opinion, we discussed Matt's lack of visitation in our analysis of the trial court's best-interests finding. L.G., 2019 WL 1548925, at *8. We noted that the lack of visitation, along with other omissions by Matt, indicated that he did not have a proper parent-child relationship with L.G. Id.
Finally, the Department contends that Matt's failure to complete his court-ordered service plan supports the trial courts endangerment finding under statutory ground (E). We agree that failure to complete a court-ordered service plan may be relevant to an endangerment analysis under statutory ground (E), particularly when it is evidence of a continuing pattern of neglect or abuse that has endangered a child. See, e.g., In re M.R., 243 S.W.3d 807, 818 (Tex. App.—Fort Worth 2007, no pet.); In re R.F., 115 S.W.3d 804, 810-11 (Tex. App.—Dallas 2003, no pet.). In M.R., Mother's refusal to participate in her service plan was part of a continuing pattern endangering her child that included admitted past substance abuse, allowing her children to be in a home where she knew substance abuse occurred, refusal to submit to any drug tests, and exposure to domestic violence. M.R., 243 S.W.3d at 818-19. In R.F., the court of appeals noted that the appellant had a "continuing course of destructive conduct" that included "a history of violent, aggressive behavior towards others, use [of] illegal drugs, and" numerous suicide attempts, including one when she knew she was pregnant with R.F. R.F., 115 S.W.3d at 810. The court then discussed how she continued this pattern by not completing any of her service plan more than a year after it began and by refusing to follow the recommendations that specifically addressed her destructive behaviors. Id. at 811.
In this case, there was no evidence of an ongoing pattern of abuse or neglect of L.G. by Matt, of domestic violence, or of substance abuse by Matt or anyone else in his home. While he did not complete all of his service plan, the evidence at trial showed that he was continuing his efforts to complete those services that he could. We have previously affirmed the trial court's termination of Matt's parental rights under statutory ground (O) based on his failure to complete his court-ordered service plan. However, the facts in this case do not show that this failure was part of a "voluntary, deliberate, and conscious course of conduct" by Matt that endangered the physical or emotional well-being of L.G., as is required by statutory ground (E). Perez, 148 S.W.3d at 436. We find there is legally insufficient evidence to support the trial court's finding under statutory ground (E) that Matt endangered L.G.'s emotional or physical well-being as a result of failure to complete all of the services under his court-ordered service plan.
Under this record, we find that there is legally insufficient evidence to support the trial court's findings under statutory grounds (D) and (E). Therefore, we reverse the trial court's findings under statutory grounds (D) and (E) and sustain Matt's second and third issues.
Since we find the evidence was legally insufficient, we need not address Matt's factual insufficiency issues.
We have previously affirmed the trial court's order of termination terminating Matt's parental rights under statutory ground (O). However, we modify the trial court's order of termination by striking paragraph 8.2.1, relating to the trial court's finding pursuant to Section 161.001(b)(1)(D) of the Texas Family Code, and by striking paragraph 8.2.2, relating to the trial court's finding pursuant to Section 161.001(b)(1)(E) of the Texas Family Code.
We affirm the trial court's order of termination, as modified.
Josh R. Morriss, III
Chief Justice Date Submitted: July 1, 2020
Date Decided: July 24, 2020