In re A.O.

In the Interest of A.O., III, C.O., A.O., N.O., A.O., L.W., and T.J., Children^[1]

No. 02-21-00376-CV

Court of Appeals of Texas, Second District, Fort Worth

April 28, 2022

On Appeal from the 233rd District Court Tarrant County, Texas Trial Court No. 233-680333-20

Before Sudderth, C.J.; Bassel and Womack, JJ.

MEMORANDUM OPINION

Bonnie Sudderth Chief Justice

Appellant J.W. (Mother) appeals the termination of her parental rights to seven of her children: A.O.III (Aaron), C.O. (Chelsea) A.A.O. (Amanda), N.O. (Nancy), A.V.O. (Audrey), L.W (Lauren), and T.J. (Tyler) (collectively, the Children).^[2] Mother challenges the legal and factual sufficiency of the evidence to support the trial court's findings (1) that she violated three statutory predicate grounds for termination under Texas Family Code Section 161.001-including the two endangerment predicate grounds; and (2) that termination was in the best interest of the Children. Tex. Fam. Code Ann. § 161.001(b)(1)(D) (b)(1)(E), (b)(2). She lodges only a cursory challenge to the endangerment predicate findings, but her best interest challenge highlights notable evidence in her favor, including the evidence that she completed everything asked of her in the court-ordered service plan prepared by the Department of Family and Protective Services.

Indeed the record contains evidence both for and against the trial court's best interest finding. We do not envy the trial court's role as factfinder in this case. But for much the same reason, because the best interest evidence was not so lopsided as to require a finding in either direction, the factfinder could have reasonably formed a firm belief or conviction that termination was in the best interest of the Children.

And because it could have similarly concluded that Mother's pre-removal actions violated the two endangerment predicate grounds, we will affirm the trial court's order of termination. See id.

I. Background

At the time of the termination trial, in September 2021, Mother had eight Children-one adult daughter plus the seven Children who are the subject of this case. Mother had her six oldest children (her adult daughter plus Aaron, Chelsea, Amanda, Nancy, and Audrey) with Father One, ^[3] she had her seventh child (Lauren) with Father Two, and she had her eighth child (Tyler) with Father Three. Although these fathers were largely absent from the Children's lives, one of them-Father Two-played a central role in Mother's questionable pre-removal conduct.

A. Pre-Removal Conduct

The events that led to the 2021 termination trial began more than six years earlier in 2015. 1. Sexual Assault of a Minor, Father Two

When Mother's seventh child, Lauren, was born in October 2015, Lauren's father, Father Two, was 15 years old and Mother was 31 years old. In other words, Lauren's birth showed that Mother had had sex with a minor. See Tex. Penal Code Ann. § 22.011(a)(2).

To make matters worse, Father Two was Father One's nephew, and Mother already had six children with Father One when Lauren was born.^[4] But Mother and Father Two testified at trial that when they slept together, they had not been aware of one another's relationship with Father One. They both claimed that they had met by happenstance at a local store and that Mother had thought Father Two was 18 years old when they had sex. A reasonable factfinder could have questioned this testimony, though.

For one thing, Father Two testified that he and Mother first met in June 2015, even though their baby was born in October 2015. Father Two corrected his error only after the Department's counsel pointed out that pregnancies generally last nine months; at that point, Father Two stated that he had "mixed up [his] words."

Furthermore, Father Two testified that he told Mother he was 18 for multiple years. From the time they met when Father Two was, at most, 15 years old^[5] until Father Two turned 17 years old, he claimed that he continued to tell Mother he was 18.

Whatever the case may be, even if Mother had believed that Father Two remained 18 over a multi-year period, knowledge of a child's age is not an element of sexual assault of a minor. See id. "[A] child cannot consent to sexual contact or intercourse" with an adult. Smallwood v. State, 471 S.W.3d 601, 607 (Tex. App.-Fort Worth 2015, pet. ref'd) (op. on reh'g). Mother was thus indicted for second-degree felony sexual assault of a child under 17 years of age. See Tex. Penal Code Ann. § 22.011(a)(2).

2. Gun Incident with Father Three

Approximately three years after Mother had Father Two's child, she had a child with Father Three. Mother testified at trial that, unlike Father Two, Father Three had not been a minor when they first had sex; he had been "about 18 or 19."

Regardless, Mother was involved in a different criminal incident with Father Three. She testified that she had been arguing in a vehicle with Father Three^[6] and that, for unexplained reasons, he was holding a loaded gun in his lap. Mother claimed that she thought Father Three was reaching for the gun, so she reached for it as well, and as they wrestled, the gun went off. Although neither party was shot, both were "grazed by the clip of the gun" and both were left bleeding.

It is unclear when this incident occurred^[7] and what criminal charges were filed as a result of it. However, at trial, Mother alluded to a corresponding criminal case against her, and she testified that Father Three was identified as the "victim" in her case.

3. Deferred Adjudication Community Supervision

In 2019, Mother was placed on deferred adjudication community supervision for her sexual assault of Father Two.^[8] Due to the gun incident with Father Three, Mother's community supervision included a condition prohibiting her from contacting him. Other conditions of Mother's community supervision included:

Commit no offense against the laws of this State or of any other State or of the United States [;]

. . . .

Do not possess, own, or attempt to purchase a firearm or weapon [;] . . . .

Comply with sex offender registration procedures as required by the laws of this State and of any other State and pay any costs thereof as required by law[; and]

. . . .

Have no contact with any child under 17 years of age [other than Mother's birth children] unless a chaperone approved by the Court or supervision officer is present.

As explained below, the evidence at trial supported a conclusion that Mother violated these conditions.

4. Hotel Incident with Children

Several violations occurred in a hotel incident in April 2020, just over one year after Mother was placed on community supervision. There, Mother was in a one-bedroom hotel room with her Children when the Children gained access to a loaded gun and gave the gun to Mother's then one-year-old son, Tyler, who began playing with it and accidentally shot himself.

Mother testified at trial that she had been asleep in the hotel room when the shooting occurred. She explained that the Children^[9] welcomed other youths into the room and gained access to a gun that she did not know was present. The Children, though, told the Department that Mother was not asleep but was instead on the phone.

A Department investigator testified to that effect at trial. She stated that Lauren, who was four years old at the time of the incident, told her that Mother was on the phone when Tyler was shot. The investigator further testified that Mother's nephew-who was one of the youths her Children let into the hotel room-had told the investigator that Mother was on her phone and "that [Aaron's] friend gave [Tyler] the gun and [the friend] was waiting to use [Mother's] phone."

Either way, Tyler was transported to the hospital where he stayed for approximately three nights. He survived but had four wounds, including an injury to his groin area.

This hotel incident was the catalyst that led the Department to file the instant case.

B. Emergency Removal and Other Ramifications

While Mother was at the hospital tending to Tyler's wounds, the Department took Mother's other Children to the Department's office, and they began making arrangements to seek an emergency removal of the Children.^[10]

1. Emergency Removal

Just days after the hotel incident, the Department obtained an ex parte order for an emergency removal of the Children. Soon thereafter, it petitioned to extend the removal and terminate Mother's parental rights.

2. Motion to Adjudicate, New Charges, and Bond Violations

The hotel incident not only raised concerns regarding Mother's parenting, but it also violated the terms of Mother's community supervision. Based in part on these violations, the State petitioned to proceed to adjudication on Mother's sexual assault of a minor offense. The State alleged that Mother had violated the terms of her community supervision on the day of the hotel incident by possessing a firearm and coming into contact with a minor without an approved chaperone. Additionally, the State alleged that Mother committed other violations, including, among other things, failing to register as a sex offender. Consequently, Mother was separately indicted for failing to register as a sex offender. See Tex. Code Crim. Proc. Ann. art. 62.102.

A warrant was issued for Mother's arrest, and she was released on bond but ordered to comply with specific bond conditions, including a condition that she attend sex offender treatment. But because Mother failed to attend all of the required treatment sessions, not long after she had been released on bond, the bond was held insufficient.

3. Temporary Orders and Service Plan

Meanwhile the trial court entered temporary orders extending the Children's removal. The temporary orders included a Department service plan...