In re C.S.

1

IN THE INTEREST OF C.S. AND A.S., CHILDREN

No. 06-22-00032-CV

Court of Appeals of Texas, Sixth District, Texarkana

August 16, 2022

Date Submitted: August 8, 2022

On Appeal from the County Court at Law Bowie County, Texas Trial Court No. 21C0139-CCL

Before Morriss, C.J., Stevens and van Cleef, JJ.

MEMORANDUM OPINION

Josh R. Morriss III Chief Justice

When Mother's child from another marriage, E.V., was detained for breaking into a church and stealing food, he said he was hungry. E.V. explained that he had had food withheld from him as a form of punishment and that he had sixty days of a ninety-day punishment remaining.^[1] E.V. reported that he was also punished by completing extra chores, doing military-style workouts, sitting on a bench for extended periods of time, and being spanked with different objects including a stick with thorns on it, phone chargers, paint sticks, and a paddle. Further investigation by the Child Protective Services (CPS) division of the Texas Department of Family and Protective Services indicated that Mother and Father's other children, C.S. and A.S., witnessed E.V being punished and that they had received the same kinds of punishment. Because of the excessive and unusual punishment of the children, they were removed from Mother and Father's home.

About fourteen months after the children were removed, the trial court determined that termination of Mother's and Father's parental rights was in the best interests of C.S. and A.S. and terminated Mother's and Father's parental rights to C.S. and A.S. on four grounds set out in Section 161.001(b)(1), subsections (D), (E), (J), and (O), of the Texas Family Code. See Tex. Fam. Code Ann § 161.001(b)(1)(D), (E), (J), (O). On appeal Father^[2] asserts that the evidence is legally and factually insufficient to support the trial court's findings on statutory grounds D, E, and J and that the evidence is legally and factually insufficient to support its finding that termination of his parental rights was in the children's best interests. Because we find that sufficient evidence supports the trial court's finding under statutory ground D and its finding on the children's best interests, we affirm the trial court's judgment.

Standard of Review

"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 In re A.B., 437 S.W.3d at 500). "[Involuntary 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) (quoting 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; 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 In re 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, 108 (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 In re H.R.M., 209 S.W.3d at 108). "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 In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002)). "'[I]n making this determination,' we undertake 'an exacting review of the entire record with a healthy regard for the constitutional interests at stake.'" Id. (quoting In re A.B., 437 S.W.3d at 503). "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." In re A.M., No. 06-18-00012-CV, 2018 WL 3077784, at *3 (Tex. App -Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M., 209 S.W.3d at 109).

"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.'" In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (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.).

Sufficient Evidence Supported the Statutory Ground D Finding

Father asserts that the evidence is legally and factually insufficient to support the trial court's findings under grounds D and E. "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." Id. at 923 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex App-Texarkana 2013, pet. denied)). Even so, when the trial court's findings under grounds D or E are challenged on appeal, due process demands that we review the evidence supporting the findings under at least one of those grounds when they are challenged on appeal.

See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam) ("We hold that due process and due course of law requirements mandate that an appellate court detail its analysis for an appeal of termination of parental rights under section 161.001(b)(1)(D) or (E) of the Family Code."). This is because termination of parental rights under these grounds may implicate the parent's parental rights to other children. Id. at 234; see Tex. Fam. Code Ann. § 161.001(b)(1)(M) (providing as a ground for termination of parental rights that the parent "had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E)").

"Termination under Ground D is proper when there is clear and convincing evidence that 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.'" In re D.R, 631 S.W.3d 826, 833 (Tex. App -Texarkana 2021, no pet.) (quoting Tex. Fam. Code Ann. § 161.001(b)(1)(D)). "Under [Section 161.001(b)(1)(D)], we must examine the time before the child[]'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, 2013 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]." In re 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)).

In this case, the evidence showed that Stevie Stanley, an alternative response caseworker with CPS, received the report of E.V.'s break-in at the church to steal food. E.V. told the police of the various punishments. Stanley testified that, when...