C. L. v. Tex. Dep't of Family & Protective Servs.

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C. L. and R. H., Appellants v. Texas Department of Family and Protective Services, Appellee

No. 03-24-00257-CV

Court of Appeals of Texas, Third District, Austin

October 11, 2024

FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 23DFAM338419, THE HONORABLE DALLAS SIMS, JUDGE PRESIDING

Before Baker, Triana, and Kelly Justices.

MEMORANDUM OPINION

Chari L. Kelly, Justice.

C.L (Father) and R.H. (Mother) appeal the trial court's Decree of Termination, which terminates their parental rights to their daughter, H.L. (Child). Father challenges the findings made against him under termination statutory predicate grounds Paragraphs (D), (E), (N), and (Q) and under the statutory best-interest ground. See Tex. Fam Code § 161.001(b)(1)(D), (E), (N), (Q), (2). In contrast, Mother's attorney on appeal has filed an Anders brief, concluding that Mother's appeal is frivolous and without merit. See Anders v California, 386 U.S. 738, 744 (1967); In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam) (approving use of Anders procedure in appeal from judgment terminating parental rights).

We mostly reject Father's arguments, concluding that the evidence was sufficient under Paragraph (E) and best interest but also concluding that the evidence was factually insufficient under Paragraph (D). Otherwise, Mother's brief meets the requirements of Anders by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced on appeal. See 386 U.S. at 744; Taylor v. Texas Dep't of Protective & Regul. Servs., 160 S.W.3d 641, 646-47 (Tex. App.-Austin 2005, pet. denied). We thus modify the Decree to delete the Paragraph (D) finding made against Father and affirm the Decree as modified.

BACKGROUND

When she was born, Child, and Mother as well, had methamphetamine in her system. She was only 11 months old at the time of trial. Soon after Child's birth, the Department stepped in to pursue an emergency removal, which was granted, and eventually placed Child in foster care. Father was not in the picture-he was incarcerated when Child was born and has remained so ever since. At the time of trial, he was awaiting transfer from a county jail to TDCJ to serve a felony sentence. Child stayed in the foster placement for about nine and a half months. After DNA confirmed that Father was Child's parent, the Department moved Child's placement to her paternal grandfather's home, where he lives with his current partner. The Department prepared Family Service Plans for both Mother and Father, and Department personnel explained to both parents that they needed to comply with the services required in the Plans for Child to be returned to their care. Both Plans were made orders of the trial court. Father did not complete his Plan because most or all of its required services were not available in the facility where he was incarcerated. Mother did not complete most of what her Plan required of her. For example, she tested positive for illegal drugs during this suit, missed many of the Plan-required drug tests, and failed to maintain stable housing or employment.

The Department sought termination of each parent's parental rights to Child and tried those claims to the bench. The testifying witnesses were the Department caseworker, Father's mother, and Child's initial foster placement. Also, Child's guardian ad litem offered her recommendation in support of the Department's position. The trial court ultimately rendered judgment terminating each parent's rights, making findings against Father under predicate-ground Paragraphs (D), (E), (N), and (Q); against Mother under predicate-ground Paragraphs (D), (E), (N), and (O); and against each parent under the statutory best-interest requirement. Both parents now appeal.

FATHER'S APPEAL

Father challenges the legal and factual sufficiency of the evidence supporting the findings made against him under the two elements of termination of parental rights-the statutory predicate ground and the best-interest ground. To terminate parental rights, the Department must prove one of the statutory predicate grounds and that termination is in the best interest of the child. See Tex. Fam. Code § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). It must prove both elements by clear and convincing evidence. See Tex. Fam. Code § 161.206(a); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'Clear and convincing evidence' means the measure or 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 § 101.007; accord In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).

Legal-sufficiency review of the evidence to support termination requires reviewing all the evidence in the light most favorable to the finding under attack, and considering undisputed contrary evidence, to decide whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. See In re A.C., 560 S.W.3d 624, 630-31 (Tex. 2018). "Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding against all the evidence favoring the finding." Id. at 631. "Evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true." Id. When reviewing the evidence, we must "provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses." In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).

I. The evidence was sufficient to support the finding against Father under statutory

predicate ground Paragraph (E) but factually insufficient under Paragraph (D).

Father first challenges the findings made against him under statutory predicate grounds Paragraphs (D), (E), (N), and (Q), contending that the evidence was legally and factually insufficient to support each finding. "To affirm a termination judgment on appeal, a court need uphold only one termination ground-in addition to upholding a challenged best interest finding-even if the trial court based the termination on more than one ground." In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam). But because of the potential collateral consequences for a parent of a Paragraph (D) or (E) finding and the dictates of due process, when on appeal a parent has presented the issue, "an appellate court that denies review of a [Paragraph] (D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent's only chance for review of a finding that will be binding as to parental rights to other children." Id. at 235. "We often conduct evidence-sufficiency reviews under both [Paragraphs (D) and (E)] simultaneously when, as here, the evidence relevant under each is interrelated." M.L. v. Texas Dep't of Fam. & Protective Servs., No. 03-22-00541-CV, 2023 WL 2025710, at *3 (Tex. App.-Austin Feb. 16, 2023, no pet.) (mem. op.).

Paragraph (D) applies when a 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 § 161.001(b)(1)(D). Paragraph (E) applies when a 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." Id. § 161.001(b)(1)(E). For these purposes, "'[e]ndanger' means 'to expose to loss or injury; to jeopardize.'" In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Texas Dep't of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Although "endanger" means "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury," id. (quoting Boyd, 727 S.W.2d at 533), or even that the conduct happen in the child's presence, Pruitt v. Texas Dep't of Fam. & Protective Servs., No. 03-10-00089-CV, 2010 WL 5463861, at *4 (Tex. App.-Austin Dec. 23, 2010, no pet.) (mem. op.). See also A.S. v. Texas Dep't of Fam. & Protective Servs., No. 03-23-00658-CV, 2024 WL 1587046, at *5 (Tex. App.-Austin Apr. 12, 2024, no pet.) (mem. op.) ("Father's illegal-drug use and repeated conduct leading to incarceration still exposed Child to jeopardy and loss even if Father did not do those things while around Child."). "Endangerment does not have to be established as an independent proposition, but can be inferred from parental misconduct alone," and courts may look to conduct "before the child's birth and both before and after the child has been removed by the Department." Pruitt, 2010 WL 5463861, at *4. "A factfinder may infer endangerment from 'a course of conduct' that presents substantial risks to the child's physical or emotional well-being," and "[t]hose risks can be developed by circumstances arising from and surrounding a parent's behavior." In re R.R.A., 687 S.W.3d 269, 277 (Tex. 2024). "Conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being." Pruitt, 2010 WL 5463861, at *4.

Important under Paragraph (E) is whether the endangerment of the child's well-being was the direct result of a person's conduct, including acts, omissions, or failures to act. See T.M. v. Texas Dep't of Fam. &amp Protective Servs., No. 03-21-00174-CV, 2021 WL 4692471, at *6 (Tex. App.-Austin Oct. 8, 2021, pet. denied) (mem. op.); In re...