In re Interest of M.L.

IN THE INTEREST OF M.L., A CHILD

No. 07-20-00195-CV

Court of Appeals Seventh District of Texas at Amarillo

December 4, 2020

On Appeal from the 316th District Court Hutchinson County, Texas

Trial Court No. 43,682, Honorable James M. Mosley, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

In this accelerated appeal, appellant, Father, seeks reversal of the trial court's judgment terminating his parental rights to M.L.¹ In two issues, Father asserts that the evidence is insufficient to support the trial court's predicate findings and the finding that termination is in the best interest of M.L. Finding no error, we affirm the judgment of the trial court.

Background

In January of 2019, the Texas Department of Family and Protective Services filed its petition for protection, conservatorship, and termination of parental rights of Mother and Father as to their ten-month-old daughter, M.L.² M.L. and her three siblings were removed after the Department received a report that Mother and Father were using illegal drugs, and the oldest child in the home, fourteen-year-old M.J., was hospitalized after a drug overdose.³ There were also concerns of domestic violence in the home. The department investigator interviewed M.J. According to M.J., she found illegal drugs and paraphernalia in Father's belongings and she "attempted to overdose because of the conflict in the home going on with [Father]." As a part of the investigation, the Department requested that Father submit to a hair follicle drug test, but he declined.

The Department developed a family service plan for Father, and the court ordered compliance with the plan requirements at a status hearing held in March. The service plan set out several tasks and services for Father to complete before reunification with M.L. could occur.

Father did not complete his family service plan because he was incarcerated beginning in August of 2019 continuing through the trial date in June of 2020. He did not participate in any services before he was incarcerated. Father failed to maintain a drug-free lifestyle, stable housing and employment, and he did not maintain regular contact with the Department. Father did not attend individual counseling, did not initiate hispsychosocial assessment, failed to complete an Outreach, Screening, Assessment and Referral (OSAR) evaluation, and did not enroll in the Batterer's Intervention Prevention Program (BIPP). Before Father was incarcerated, he submitted to one drug screen as requested by the Department. After Father was incarcerated, he completed a portion of a parenting workbook that the Department sent him.

The Department presented evidence that Father received ten years' community supervision probation for the felony offense of possession of a controlled substance on December 13, 2018. While on supervision, Father admitted to using methamphetamine on February 4, 2019, and he tested positive for methamphetamine, amphetamine, and marijuana in the Department's drug screen on July 2. In August of 2019, Father was arrested on a motion to revoke his community supervision. Father pled true to nineteen violations of his community supervision including his illegal drug use. As a result of his plea, Father's probation was revoked, and he was sentenced to eight years in the Texas Department of Criminal Justice. Father was incarcerated and serving his sentence when the termination trial commenced on June 16, 2020.

Mother testified that she knew that Father was using methamphetamine while he was living with her and the children in January of 2019. Mother also testified that she and Father had physical altercations and that they "fought a lot, argued." During one argument between Mother and Father, M.J. intervened and sprayed pepper spray on Father.

M.L. was placed with a relative in Borger after her removal. M.L. is doing "incredibly well" in this placement and the placement is interested in adopting M.L. The relative has also taken steps to become licensed as a foster home.

The trial court terminated Father's parental rights on the grounds of endangering conditions, endangerment, failure to comply with a court order that established actions necessary to retain custody of the child, failure to complete a court-ordered substance abuse treatment program, and engaging in criminal conduct that led to his conviction, imprisonment, and inability to care for the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), and (O), (P), and (Q) (West Supp. 2020).⁴ The trial court also found that termination was in the best interest of M.L. See § 161.001(b)(2). The trial court appointed the Department as the managing conservator of M.L.

Applicable Law

A parent's right to the "companionship, care, custody, and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, "the rights of natural parents are not absolute" and "[t]he 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) (citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may forfeit his or her parental rights by his or her acts or omissions, the primary focus of a termination suit is protection of the child's best interests. See id.

In a case to terminate parental rights under section 161.001 of the Family Code, the petitioner must establish, by clear and convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination, and (2) termination is in the best interest of the child. § 161.001(b). Clear and convincing evidence is "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." § 101.007 (West 2019); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be established and termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). "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." In re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both legally and factually sufficient to support any alleged statutory ground the trial court relied upon in terminating the parental rights if the evidence also establishes that termination is in the child's best interest. In re K.C.B., 280 S.W.3d at 894-95.

The clear and convincing evidence standard does not mean the evidence must negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall that the trier of fact has the authority to weigh the evidence, draw reasonable inferences therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the right to resolve credibility issues and conflicts within the evidence and may freely choose to believe all, part, or none of the testimony espoused by any particular witness. Id.Where conflicting evidence is present, the factfinder's determination on such matters is generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no writ).

The appellate court cannot weigh witness credibility issues that depend on demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript, the appellate court must defer to the factfinder's determinations, as long as those determinations are not themselves unreasonable. Id.

Standard of Review

When reviewing the legal sufficiency of the evidence in a termination case, the appellate court should look at all the evidence in the light most favorable to the trial court's finding "to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In re J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder's conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been not credible, but we do not disregard undisputed facts. Id. Even evidence that does more than raise surmise or suspicion is not sufficient unless that evidence is capable of producing a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that no reasonable factfinder could have formed a firm belief or conviction that the matter thatmust be proven was true, then the evidence is legally insufficient and we must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, we must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. We must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the petitioner's allegations. Id. We must also consider whether disputed evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor of its finding. Id. If, in...