In re N.M.R.

1

IN THE INTEREST OF N.M.R., a Child

No. 04-22-00032-CV

Court of Appeals of Texas, Fourth District, San Antonio

August 24, 2022

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2019PA01170 Honorable Martha Tanner, Judge Presiding

Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Liza A. Rodriguez, Justice

MEMORANDUM OPINION

Irene Rios, Justice

Appellants K.H., Mother, and L.R., Father, appeal the trial court's order terminating their parental rights to their child N.M.R.^[1] Mother and Father challenge the legal and factual sufficiency of the evidence supporting the statutory predicate grounds and that termination is in N.M.R.'s best interest. Mother also argues-because the termination of her parental rights was based on alleged insufficient evidence-the trial court's conservatorship determination was an abuse of discretion. We affirm in part and reverse in part.

Background

The Department of Family and Protective Services ("the Department") removed N.M.R. from Mother's and Father's care several months after N.M.R.'s birth because N.M.R. and Mother both tested positive for marijuana at N.M.R.'s birth, and the Department had concerns of domestic violence between Mother and Father.

Based on these reasons and concern for the child's welfare, on June 7, 2019, the Department filed a petition for termination of parental rights and sought removal of the child. N.M.R was placed in a foster home.

During the pendency of this case, the Department offered Mother and Father multiple services, including drug assessments and treatment, drug testing, domestic violence classes, and individual counseling. Mother and Father both made progress under the family-based services, but neither of them successfully completed all the services to the satisfaction of the Department. Moreover, at trial, Mother and Father reported that after completing domestic violence classes, no further incidents occurred between Mother and Father. By the time of trial, Mother-who tested positive for marijuana at N.M.R.'s birth-was no longer using any illegal substance. Father, on the other hand, continued to struggle with drug use throughout the case.

On August 17, 2021 and December 10, 2021, the trial court held a bench trial. The trial court heard testimony from Nicolette Riebe and Jennifer Ziarmal, the Department's caseworkers and Mother and Father.

On December 11, 2021, the trial court rendered its order terminating Mother's and Father's parental rights to N.M.R but later reformed its order and signed an order of termination on February 1, 2022.^[2] Specifically, the trial court terminated Mother's and Father's parental rights based on statutory grounds (D), (E), and (O) in section 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). The trial court also found that it was in N.M.R's best interest to terminate Mother's and Father's parental rights. See id. § 161.001(b)(2). Mother and Father appealed.

Standard of Review

A parent's rights to the "companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Therefore, we strictly scrutinize parental termination proceedings and strictly construe the involuntary statutes in favor of the parents. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, "the rights of natural parents are not absolute" and "the 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).

Due to the severity and permanency of terminating parental rights, the Department must prove its case by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'Clear and convincing evidence' means 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." Tex. Fam. Code Ann. § 101.007.

This burden of proof requires a heightened standard of review. See Tex. Fam. Code Ann. §§ 101.007, 161.206(a); In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (conducting a factual sufficiency review); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (conducting a legal sufficiency review); In re S.R., 452 S.W.3d 351, 358 (Tex. App.-Houston [14th Dist.] 2014, pet. denied).

"In reviewing the legal sufficiency of the evidence to support the termination of parental rights, we must 'look at all the evidence in the light most favorable to the 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.L.B., No. 04-17-00364-CV, 2017 WL 4942855, at *2 (Tex. App.-San Antonio Nov. 1, 2017, pet. denied) (mem. op.) (quoting J.F.C., 96 S.W.3d at 266). "[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." J.F.C., 96 S.W.3d at 266. "A corollary to this requirement is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.

"In reviewing the factual sufficiency of the evidence to support the termination of parental rights, we 'must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing.'" J.L.B., 2017 WL 4942855, at *2 (quoting J.F.C., 96 S.W.3d at 266). "A [reviewing court] should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266. "The [reviewing] court must hold the evidence to be factually insufficient if, in light of the entire record, the disputed evidence contrary to the judgment is so significant that a reasonable factfinder could not have resolved that disputed evidence in favor of the ultimate finding." In re M.T.C., No. 04-16-00548-CV, 2017 WL 603634, at *2 (Tex. App.-San Antonio Feb. 15, 2017, no pet.) (mem. op.).

Statutory Ground for Termination

To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the Department must prove by clear and convincing evidence: (1) one of the predicate grounds in subsection 161.001(b)(1); and (2) termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b). Clear and convincing evidence requires "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. § 101.007.

Only one predicate ground finding under section 161.001(b)(1) is necessary to support a termination judgment when there is also a finding that termination is in the child's best interest. A.V., 113 S.W.3d at 362. Therefore, our analysis is usually complete if we conclude that the evidence is sufficient to support any single predicate ground. Because the findings under section 161.001(b)(1)(D) and (E) have consequences for termination of parental rights as to other children, termination on these grounds implicates significant due process concerns for Mother and Father. Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (M); In re N.G., 577 S.W.3d 230, 234 (Tex. 2019). When challenged, due process requires us to review the trial court's findings under both sections 161.001(b)(1)(D) and (E) of the Texas Family Code. See In re C.W., 586 S.W.3d 405, 407 (Tex. 2019) ("[W]hen a trial court makes a finding to terminate parental rights under section 161.001(b)(1)(D) or (E) and the parent challenges that finding on appeal, due process requires the appellate court to review that finding and detail its analysis.").

Here, the trial court found evidence establishing Mother and Father "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child" and "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child[.]" See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). While both subsections D and E focus on endangerment, they differ regarding the source and proof of endangerment. In re A.B.R., No. 04-19-00631-CV, 2020 WL 1159043, at *2 (Tex. App.-San Antonio Mar. 11, 2020, pet. denied) (mem. op.). Subsection D concerns the child's living environment, rather than the conduct of the parent, though parental conduct is certainly relevant to the child's environment. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). Under subsection E, the cause of the endangerment must be the parent's conduct and must be the result of a conscious course of conduct rather than a single act or omission. Id.

Statutory Subsection D

The statutory ground for termination found in subsection D allows for termination of parental rights if the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Tex Fam. Code Ann. § 161.001(b)(1)(D). The child's "environment" encompasses the suitability of the child's living conditions and the conduct of parents or others in the home. S.R., 452 S.W.3d at 360. "Inappropriate, abusive, or unlawful conduct by a parent or other persons who live in the child's home can create an environment that endangers the physical and emotional well-being of [the child] as required for termination under subsection D." Id. "'[A] parent need not know for certain that the child is in an endangering environment; awareness...