In re B.U.

1

In the Interest of B.U., a Child

No. 02-23-00150-CV

Court of Appeals of Texas, Second District, Fort Worth

September 14, 2023

On Appeal from the 97th District Court Montague County, Texas Trial Court No. 2022-0075M-CV

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

MEMORANDUM OPINION

BONNIE SUDDERTH, CHIEF JUSTICE

Appellant C.C. (Mother)^[1] appeals the trial court's order terminating her parental rights to her son, B.U. In three issues, Mother contends that the evidence is legally insufficient to support the conduct-specific grounds for termination and both legally and factually insufficient to support the trial court's finding that terminating Mother's parental rights is in B.U.'s best interest. Because we overrule Mother's dispositive issues, we affirm the trial court's termination judgment.

I. Background

Mother who has a long history of involvement with the Texas Department of Family and Protective Services (the Department),^[2] has had four children. Mother's oldest child is Joseph, who was fathered by Mother's brother during a sexual assault.^[3]Mother had two more children, Jackson and Justinia, with a man named Peter, but her parental rights to these children have been terminated. B.U., whose alleged father Cory^[4] was Peter's brother, is Mother's youngest child.

In March 2022, the Department filed suit seeking temporary managing conservatorship of B.U. As grounds for removal, the Department alleged that Mother (1) had left B.U. in the care of Jackson and Justinia, B.U.'s elementary-aged half-siblings,^[5] on a minimum of three occasions; (2) had continued to allow Brad to be around B.U. despite his continued drug use and acts of domestic violence; and (3) had been "deceptive" during B.U.'s monitored return.

The Department created a service plan for Mother to ensure that she could provide a safe environment for B.U.^[6] The trial court approved this plan in May 2022 and ordered Mother to comply with it.

Although Mother completed certain requirements of her service plan- including completing a psychological evaluation and classes in parenting and anger management-she admitted at trial that she had failed to complete all of the required services. According to Nevarez, the service plan requirements that Mother failed to complete included, among other things, "provid[ing] and maintain[ing] a safe and stable home" for B.U. and "not associat[ing] with persons who use, manufacture, or sell illegal substances or have [a] criminal history associated with drugs or family violence." Nevarez explained that Mother had failed to comply with both of these requirements by continuing to associate with Brad, who had been convicted of multiple drug-related offenses and who Mother acknowledged was a "drug addict," and to allow him into her home even though his presence had been a "major" reason that the Department had removed B.U.

Following a bench trial in March 2023, the associate judge found (1) that there were grounds for terminating Mother's parent-child relationship with B.U. because Mother had endangered B.U.'s physical or emotional well-being, see Tex. Fam. Code. Ann. § 161.001(b)(1)(D), (E), and had failed to comply with the provisions of a court order specifically establishing the actions necessary for Mother to obtain B.U.'s return to her custody, see id. § 161.001(b)(1)(O), and (2) that termination was in B.U.'s best interests, see id. § 161.001(b)(2). Based on these findings, the associate judge terminated Mother's parental rights to B.U.

After granting Mother's request for a de novo hearing, see Tex. Fam. Code Ann. §§ 201.015, 201.2042, the district court adopted the associate judge's findings and signed a final order terminating the parent-child relationship. This appeal followed.

II. Discussion

In three issues, Mother contends that the evidence is insufficient to uphold the findings supporting termination.

For a trial court to terminate a parent-child relationship, the party seeking termination must prove two elements by clear and convincing evidence: (1) that the parent's actions satisfy one ground listed in Family Code Section 161.001(b)(1); and (2) that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). Evidence is clear and convincing if it "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; Z.N., 602 S.W.3d at 545.

Due process demands the heightened standard of clear and convincing evidence because "[a] parental rights termination proceeding encumbers a value 'far more precious than any property right.'" In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) (quoting Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397 (1982)); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012). In a termination case, the State seeks not just to limit parental rights but to erase them permanently-to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, "[w]hen the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures." E.R., 385 S.W.3d at 554 (citing Santosky, 455 U.S. at 747-48, 102 S.Ct. at 1388). For the same reason, we carefully scrutinize termination proceedings and strictly construe involuntary-termination statutes in the parent's favor. E. N.C. , 384 S.W.3d at 802; E.R., 385 S.W.3d at 563; Holick, 685 S.W.2d at 20-21.

To determine whether the evidence is legally sufficient in parental-termination cases, we look at all the evidence in the light most favorable to the challenged finding to determine whether a reasonable factfinder could form a firm belief or conviction that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences, but they must be reasonable and logical. Id. We assume that the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved, and we consider undisputed evidence even if it is contrary to the finding. Id.; In re J.F.C., 96 S.W.3d at 266. That is, we consider evidence favorable to the finding if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The factfinder is the sole judge of the witnesses' credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

We must perform "an exacting review of the entire record" in determining the factual sufficiency of the evidence supporting the termination of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due deference to the factfinder's findings and do not supplant them with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide whether a factfinder could reasonably form a firm conviction or belief that the Department proved one or more of the conduct-specific grounds on which the termination was based and that the termination of the parent-child relationship would be in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm conviction or belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18- 19.

A. Endangerment Under Section 161.001(b)(1)(D) and (E)

In her first issue, Mother challenges the legal sufficiency^[7] of the trial court's predicate-ground findings under Family Code Section 161.001(b)(1)(D) and (E).

Subsections (D) and (E) both require a finding of endangerment. "'[E]ndanger' means to expose to loss or injury" or "to jeopardize." In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)); see also In re J.V., No. 02-15-00036-CV, 2015 WL 4148500, at *3 (Tex. App.- Fort Worth July 9, 2015, no pet.) (mem. op.) ("A child is endangered when the environment creates a potential for danger that the parent is aware of but disregards."). The specific danger to a child's physical or emotional well-being need not be established as an independent proposition, but it may be inferred from parental misconduct. Tex. Dep't of Human Servs., 727 S.W.2d at 533.

Endangerment under Subsection (D) arises from the child's environment but a parent's conduct can contribute to an endangering environment. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). "[A]busive or violent conduct by a parent or other resident of a child's home may produce an environment that endangers the physical or emotional well-being of a child." Id.; see J.V., 2015 WL 4148500, at *3 ("Inappropriate, abusive, or unlawful conduct by persons who live in the child's home or with whom the child is compelled to associate on a regular basis in his home is a part of the 'conditions or surroundings' of the child's home under section 161.001(b)(1)(D)."). To prove endangerment, it is not necessary that a parent's conduct be directed at the child or that the child actually suffer injury. J.T.G., 121 S.W.3d at 125. We may consider a parent's endangering conduct toward other children to determine whether the parent engaged in behavior that endangered the child at issue. See In re S.H., No. 02-17-00188-CV, 2017 WL 4542859, at *11 (Tex. App.-Fort Worth Oct. 12, 2017, no pet.) (mem. op.). Additionally, Subsection (D) permits...