In re W.Q.

Court of Appeals Sixth Appellate District of Texas at TexarkanaMar 3, 2017
No. 06-16-00086-CV (Tex. App. Mar. 3, 2017)

No. 06-16-00086-CV



On Appeal from the 6th District Court Red River County, Texas
Trial Court No. CV03759 Before Morriss, C.J., Moseley and Burgess, JJ.

Bethany's and Wayne's long-standing abuse of drugs led to the termination of their parental rights to their two youngest children, R.Q. and W.Q. In this appeal, Bethany and Wayne contend that the evidence is legally and factually insufficient to support the trial court's findings that termination was in the best interests of the children. See TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2016). We affirm the trial court's judgment because we find that sufficient evidence supports the trial court's finding that termination was in the best interests of the children.

We refer to the children by their initials and to their parents by fictitious names to protect the privacy of the children. See TEX. FAM. CODE ANN. § 109.002(D) (West 2014).

I. Standard of Review

The United States Supreme Court has acknowledged that the right of parents to maintain custody of and raise their child "is an interest far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). The Texas Supreme Court agrees with this assessment and has held that a parent's interest in maintaining custody of and raising its children is paramount. In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial." In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). We, therefore, "engage in an exacting review of the entire record to determine if the evidence is . . . sufficient to support the termination of parental rights." Id. at 500. Further, "involuntary termination statutes are strictly construed in favor of the parent." In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick, 685 S.W.2d at 20). An individual's parental rights to its child may only be terminated if the trial court finds, "by clear and convincing evidence, the existence of both of the following statutory requirements: (1) that the parent has engaged in one of the statutory grounds for termination and (2) that termination is in the child's best interest." In re C.A.J., 459 S.W.3d 175, 178 (Tex. App.—Texarkana 2015, no pet.) (citing TEX. FAM. CODE ANN. § 161.001 (West 2014); In re E.N.C., 384 S.W.3d 796, 798 (Tex. 2012); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002)). "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." TEX. FAM. CODE ANN. § 101.007 (West 2014); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings of fact to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven. E.N.C., 384 S.W.3d at 802-03 (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); C.A.J., 459 S.W.3d at 178. 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 could be reasonably doubted. E.N.C., 384 S.W.3d at 802-03 (citing J.F.C., 96 S.W.3d at 266); J.P.B., 180 S.W.3d at 573; C.A.J., 459 S.W.3d at 179.

In our factual sufficiency review, due consideration is given to evidence that the trial court could have reasonably found to be clear and convincing. In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam). We 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. at 108 (second alteration in original) (quoting C.H., 89 S.W.3d at 25). "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." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Conversely, if the evidence is such that a reasonable fact-finder could have reasonably resolved any conflicts to form a firm conviction that grounds for termination exist, then the evidence is factually sufficient, and the termination findings must be upheld. C.H., 89 S.W.3d at 18-19; C.A.J., 459 S.W.3d at 179. "[I]n making this determination, the reviewing court must undertake 'an exacting review of the entire record with a healthy regard for the constitutional interests at stake.'" A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26). We also recognize that the trial court, as the fact-finder, is the sole arbiter of a witness' demeanor and credibility, and it may believe all, part, or none of a witness' testimony. H.R.M., 209 S.W.3d at 109. Further, "the rights of natural parents are not absolute; protection of the child is paramount. . . . The rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994) (citation omitted)). In other words, the child's emotional and physical interests will not be sacrificed merely to preserve parental rights. C.H., 89 S.W.3d at 26.

II. Sufficient Evidence Supports Best Interest Finding

In their sole point of error, Bethany and Wayne challenge the legal and factual sufficiency of the evidence supporting the trial court's finding that termination of their parental rights was in the best interests of the children. Bethany and Wayne point to the lack of, or the scantiness of, evidence as to several of the Holley factors generally used to test whether termination is in the best interests of the children and to their testimony regarding their recent efforts to reform their lifestyle and to deal with their admitted addictions to drugs, in arguing that the evidence is insufficient to support the trial court's finding concerning the best interests of the children. We agree that there is a paucity of evidence as to some of the Holley factors, and do not endorse the apparent strategy of the Texas Department of Family and Protective Services (Department) in this case to rely on evidence of only one or two factors to support the termination of Bethany's and Wayne's parental rights. As the Supreme Court of Texas has noted, in some cases "paltry evidence relevant to each consideration mentioned in Holley would not suffice to uphold the [fact-finder's] finding that termination is required." C.H., 89 S.W.3d at 27. Nevertheless, in other cases,

The trial court also entered predicate findings that clear and convincing evidence supported terminating both Bethany's and Wayne's parental rights under subsections (D), (E), and (O) of Section 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West Supp. 2016). Bethany and Wayne do not challenge these findings.

See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

The absence of evidence about some of these considerations would not preclude a fact[-]finder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child.

. We believe this is such a case.

A. The Evidence at Trial

Jessica Tillman, an investigator with the Child Protective Services Division of the Department (CPS) testified that although the case involving these children was initially opened on December 10, 2015, Bethany and Wayne could not be located for about a month. When a CPS operative was able to talk with Bethany on January 8, 2016, Bethany admitted that she and Wayne had used methamphetamine the prior week. She also testified that the children were taken into CPS custody as a result of methamphetamine use and the existence of domestic violence and placed with Bethany's mother and father (the Canups), who were identified by Bethany and Wayne for placement of their children. Tillman also testified that Bethany had been to prison for child endangerment due to her oldest son having tested positive for having methamphetamine in his system and that he was being raised by Bethany's mother. Tillman also testified that Bethany had given up another son, who was born while she was in prison, for adoption.

Tillman also testified that R.Q., who was two years old at the time, tested positive for the presence of methamphetamine and amphetamine in his bodily system. She testified that this finding was based on a hair follicle test that traces back ninety days before the date the hair follicle was collected, this being a time when R.Q. was in the possession of Bethany and Wayne.

Cheryl Smith, another worker with the CPS, testified that the children were administered drug tests on February 9, 2016, and that R.Q. tested positive for the presence of methamphetamine and amphetamine. She testified further that Bethany and Wayne had also each tested positive for methamphetamine and amphetamine in their bodies from samples taken April 14, 2016. Smith testified that on the morning of April 11, 2016, Bethany and Wayne admitted at a family conference that they were using drugs daily. That same afternoon, the trial court suspended visitation with the children until Bethany and Wayne had clean drug tests, and it ordered weekly drug tests for both of them, though neither had submitted themselves for those tests. In addition, Smith testified that neither Bethany nor Wayne had performed any part of the service plan prescribed by the CPS, a service plan which included drug testing, counseling, parenting classes, and ETCADA. Smith also testified that the parents had submitted a drug test the week before trial which showed a lack of drugs in their systems.

Although this is not explained in the testimony, the acronym ETCADA apparently makes reference to the East Texas Counsel on Drug Abuse, which provides assistance to courts in screening for substance abuse and designs treatment programs for amelioration of the condition. East Texas Council on Alcoholism and Drug Abuse, Substance Abuse Services, (last visited Mar. 1, 2017).

In addition, Smith testified that Bethany and Wayne had failed to appear for their drug tests at least eight times. She said that for nine months, they had not complied with drug testing, until the "clean" drug test from the week before trial. She testified that counseling was required to address the problems that brought them to the attention of CPS and that CPS has not received any proof that they have received counseling. Smith explained that since they had not attended counseling, the CPS workers were concerned that Bethany and Wayne had not addressed the issues that precipitated the removal of their children. She also testified that very early in the case, Bethany attended at least one visitation with the children and that Wayne had only visited the children once (that time being for about twenty minutes) after he was released from jail. Smith testified that both Bethany and Wayne were arrested on the day of trial for some criminal charge (the nature of which was unknown to Smith) and that they had child endangerment charges pending against them because of the presence of illicit drugs in the body of one of their children, as mentioned previously. She also said that since they have been in Fort Worth, Bethany has stayed in contact with her.

Bethany later indicated that the arrest was for burglary of a habitation.

On cross-examination, Smith testified that Bethany and Wayne had told her that they had been working intermittently. Although she indicated that they had access to Wayne's father's vehicle, she had never seen them driving it. She also indicated that the only evidence she had that the parents smoked methamphetamine in the presence of R.Q. was that R.Q. had a positive drug test. Smith also testified that Bethany and Wayne were currently staying at facilities provided by Sober By Grace Ministries in Fort Worth and that Bethany had one "clean" drug test since they had been there.

In summary of their testimonies, Bethany and Wayne both admitted to a long history of drug addiction, but said that they had each been drug free for over forty days, having been living at and being treated by Sober By Grace Ministries. Under the tutelage of that organization, they have each regained their faith, have started parenting classes and intensive outpatient training, began attending meetings sponsored by Alcoholics Anonymous, Narcotics Anonymous, and Celebrate Recovery and communicating with their caseworker (who is apparently associated by one of these programs or with Sober By Grace Ministries) daily. Each admitted to many mistakes in the past resulting in their return to drug use and in multiple criminal charges, some of which involve injuries to children and some of which have yet to be litigated. Bethany admitted that two of her children had been taken from her and raised by family members. Both expressed overwhelming parental love for the children who are the subject of the suit and each maintained that this time (as opposed to previous times when drugs had dominated their lives), they would be able to get their lives in order and provide a stable home for their children.

Deb Weymore with Court-Appointed Special Advocates (CASA) testified that the people in the CASA organization think that termination is in the best interest of the children. She testified that CASA is comfortable with the current placement of the children and that their needs are being met. She also testified that since Bethany and Wayne have used methamphetamine for so long, she was concerned they will not be able to be drug free on a long-term basis. On cross-examination, she stated that she believed long-time addicts can get drug free and could not affirmatively say that Bethany and Wayne would not eschew the use of drugs in the future.

B. The Holley Factors

In considering whether termination is in the best interest of the child, "there is a strong presumption that the best interest of the child is served by keeping the child with a parent." In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). "Termination 'can never be justified without the most solid and substantial reasons.'" In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).

In determining the best interests of the child, courts consider the following Holley factors:

(1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.

. at 819 (citing Holley, 544 S.W.2d at 371-72); see E.N.C., 384 S.W.3d at 807; see also TEX. FAM. CODE ANN. § 263.307(b) (West Supp. 2015). It is not necessary to prove all of these factors as a condition precedent to parental-rights termination. C.H., 89 S.W.3d at 27; N.L.D., 412 S.W.3d at 819. Evidence relating to a single factor may suffice in a particular situation to support a finding that termination is in the best interests of the child. In re K.S., 420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (citing In re J.O.C., 47 S.W.3d 108, 115 (Tex. App.—Waco 2001, no pet.), overruled on other grounds by J.F.C., 96 S.W.3d at 267 n.9). When considering the child's best interest, we may take into account that a parent is unable to provide adequate care for a child, lacks parenting skills, or exercises poor judgment. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.). Parental drug abuse, which reflects poor judgment, is also a factor that may be considered when determining the child's best interest. In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.). Further, the amount of contact between the parent and child and the parent's failure to provide financial and emotional support, continuing criminal history, and past performance as a parent are all relevant in determining the child's best interest. See C.H., 89 S.W.3d at 28. We will only address those Holley factors for which there is relevant evidence. See Holley, 544 S.W.2d at 371-72.

The evidence in this case shows that both Bethany and Wayne have a long history of drug abuse, with periods of incarceration and rehabilitation, followed by relapse spawning additional incarceration and rehabilitation. Even though Bethany has two children (one of whom is also the child of Wayne) who have previously been given to the care of other family members as a result of their drug abuse and their endangerment of their children, they have often returned to the same drug-centered lifestyle that precipitated their problems. Testimony also showed that during their periods of abusing drugs, their children have been exposed to the drugs consumed by the parents, both before and after birth, and that their poor judgment has both endangered their children and, in at least one instance, caused serious injury to a child. Further, the evidence shows that their initial response to the removal of their children was to continue abusing drugs, a refusal to submit to drug tests ordered by the court, visits with their children only on rare occasions, and failure to work any of the service plan that had been prescribed by the CPS. Bethany and Wayne both blamed their past acts and omissions on their addictions. Although Bethany and Wayne claimed that they are both now drug free and are working on the services through Sober By Grace Ministries, they provided no corroborating testimony or evidence to support this claim. Apparently, only one negative drug test for each of them, taken the week before trial, was provided to the CPS. Further, Bethany and Wayne apparently did not make any effort at rehabilitation until about forty-five days before trial, and almost nine months after their children had been removed.

Bethany offered a letter from their pastor that may have been reviewed by the trial court. However, the letter was never admitted into evidence, and its contents are unknown.

In addition, both Bethany and Wayne admitted that they were currently under arrest for burglary of a habitation, and testimony also showed that they have pending child endangerment charges. Although Wayne claimed he was not involved in the burglary, he also gave an evasive answer when asked how he and Bethany supported themselves in the past. Also, although the evidence showed that Bethany and Wayne were living at Sober By Grace Ministries and were both employed for an unknown period of time, they offered no evidence regarding their income, or of their ability to provide a safe and stable home for R.Q. and W.Q.

As Bethany and Wayne note, the Department did not introduce any evidence of its plans for the children. While this is relevant to the best interest determination, it is not dispositive. C.H., 89 S.W.3d at 28. --------

The trial court, as fact-finder, could reasonably discount the recent efforts of Bethany and Wayne at rehabilitation, and infer that there was a great likelihood that their past patterns of relapse would resume in the future. See K.S., 420 S.W.3d at 856. Based on this evidence, the trial court could have reasonably formed a firm belief or conviction that Bethany and Wayne posed an emotional and physical danger to their children (both now and in the future), that they lacked the requisite parenting skills to meet the needs of their children, that they would fail to provide a safe and stable home for their children, and that their acts and omissions indicated an improper parent-child relationship. See M.R., 243 S.W.3d at 820-22 (parent's drug abuse, inability to provide stable home, failure to avoid drug use, failure to comply with service plan, inability to comply with court's orders, and forfeiture of their parental rights to other children support conclusion that termination is in best interests of children). Therefore, we find there is legally and factually sufficient evidence to support the trial court's best interest finding, and we overrule Bethany's and Wayne's point of error.

We affirm the judgment of the trial court.

Bailey C. Moseley

Justice Date Submitted: February 28, 2017
Date Decided: March 3, 2017