In re Interest of D.B.

IN THE INTEREST OF D.B., A CHILD

No. 06-21-00003-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: April 12, 2021

April 13, 2021

On Appeal from the County Court at Law Bowie County, Texas

Trial Court No. 20C0218-CCL

Before Morriss, C.J., Stevens and Carter,^* JJ.

Memorandum Opinion by Chief Justice MorrissMEMORANDUM OPINION

The Department of Family and Protective Services (Department) filed a petition to terminate Helen's parental rights to her newborn daughter, D.B.¹ The trial court terminated Helen's parental rights after finding that she constructively abandoned the child, as described in Section 161.001(b)(1)(N) of the Texas Family Code, and that she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain D.B.'s return, as described in Section 161.001(b)(1)(O).

On appeal, Helen challenges only the legal and factual sufficiency of the evidence supporting the trial court's finding that termination of her parental rights was in D.B.'s best interests. Because we find the evidence sufficient, we overrule Helen's point of error and affirm the trial court's judgment.

(1) Standard of Review

"The natural right existing between parents and their children is of constitutional dimensions." In re L.E.S., 471 S.W.3d 915, 919 (Tex. App.—Texarkana 2015, 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. at 919-20 (quoting A.B., 437 S.W.3d at 500).

"[I]nvoluntary termination statutes are strictly construed in favor of the parent." Id. at 920 (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 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); see 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.

"There is a strong presumption that keeping a child with a parent is in the child's best interest." In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam)). "Termination 'can never be justified without the most solid and substantial reasons.'" In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).

"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.'" Id. (quoting In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T.,872 S.W.2d 189, 195 (Tex. 1994))); see In re M.S., 115 S.W.3d 534, 547 (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.) (citing In re C.H., 89 S.W.3d 17, 26 (Tex. 2006)).

Because Helen concedes that legally and factually sufficient evidence supported the findings that she engaged in two statutory grounds for termination of her parental rights to D.B., the child's best interest is the only issue that we review.

In determining the best interests of the child, courts consider the following Holley factors:

(1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.

Id. at 818-19 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)); see In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b). Further, in the best-interest analysis, we may consider evidence used to support the grounds for termination of parental rights. C.H., 89 S.W.3d at 28.

"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" termination of the parent-child relationship was in the best interest of the child. L.E.S., 471 S.W.3d at 920 (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.)). "Weassume 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 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, 109 (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 105, 109 (Tex. 2006); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); In re J.F.C., 96 S.W.3d 256, 264, 266 (Tex. 2002).

"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 J.F.C., 96 S.W.3d at 266). To make this determination, we undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." Id. (quoting A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26)).

(2) The Evidence at Trial

At the December 2020 trial, the Department introduced evidence that Helen's parental rights to two other children, K.B. and Z.B., were recently terminated by the same judge in October 2020 on grounds that Helen (1) knowingly placed or allowed K.B. and Z.B. to remain inconditions or surroundings that endangered their physical or emotional well-being, (2) engaged in conduct or knowingly placed K.B. and Z.B. with persons who engaged in conduct that endangered their physical or emotional well-being, (3) constructively abandoned K.B. and Z.B., and (4) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain K.B.'s and Z.B.'s return. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O). Helen did not object to the admission of the prior judgment.

The Department then turned its attention to D.B. Beverly Lucas, an investigator for the Department, testified that D.B. was removed from Helen's possession as soon as she was born on January 30, 2020. Lucas testified that she "attempted to give [Helen] visitation several times by phone calls and text messages," but that Helen failed to attend. Cheryl Stuart, the Department's conservatorship worker, testified that she had no contact with Helen since February 2020 and that Helen had not worked any services offered by the Department. Stuart said that it was in D.B.'s best interests for Helen's parental rights to be terminated because the child had been in an adoptive placement since she was born, had thrived in that placement, and did not know Helen. Joey Elliott, the Court Appointed Special Advocate (CASA) for the child, testified that he attempted to contact Helen twice a month since CASA was assigned to the case, but Helen did not return any of his telephone calls. Elliott also said that D.B. was thriving in her adoptive placement and that it was in her best interests for Helen's parental rights to be terminated.

Helen's appointed counsel stated that she spoke with Helen on March 25, 2020, scheduled a videoconference in May, for which Helen did not appear, and made several telephone calls to her that were unreturned. In response to a letter, counsel spoke with Helen onSeptember 24 and informed her of the trial court's December 17 final hearing date. Counsel also sent a letter on October 7 reminding Helen of the hearing and left an unreturned voicemail on October 23. Despite counsel's efforts, Helen failed to appear at trial.

After hearing this evidence, the trial court found that Helen constructively abandoned D.B., that Helen failed to comply with court orders establishing the actions necessary for her to obtain D.B.'s return, and that termination of Helen's parental rights was in D.B.'s best interests.

(3) Analysis of...