Memorandum Opinion by Justice Burgess

On Appeal from the 307th District Court Gregg County, Texas
Trial Court No. 2015-1671-DR Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION

After a bench trial in Gregg County, Texas, the trial court terminated Becky's parental rights to her two minor children, Erin and David, and also terminated the parental rights of Erin's father, Roger. The trial court found that the termination of Becky's rights was warranted pursuant to Section 161.001(b)(1), grounds (D), (E), (N), (O), and (P), that the termination of Roger's rights was warranted pursuant to grounds (N) and (Q), and that the termination of their rights was in the best interests of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O), (P), (Q), (2) (West Supp. 2016). The Department of Family and Protective Services (the Department) was appointed the permanent managing conservator of the children.

On appeal, Becky argues that the evidence is legally and factually insufficient to support the trial court's finding that termination was in the children's best interests. Roger contends that (1) the evidence is legally and factually insufficient to support the trial court's finding that he constructively abandoned the child under ground (N) of Section 161.001(b)(1) of the Family Code; (2) the evidence is legally and factually insufficient to support the trial court's finding that he knowingly engaged in criminal conduct under ground (Q) of Section 161.001(b)(1) of the Family Code; (3) the evidence is legally and factually insufficient to support the trial court's finding that termination was in the child's best interest; and (4) the trial court erred by denying his motion for a paternity test.

I. Procedural and Factual Background

Becky and Terrance are the biological parents of David, age eight. Becky and Roger are the biological parents of Erin, age seven, and Ronnie, now deceased, who was five years old at the time of his death. On or about August 30, 2015, the Department received a report regarding the abuse or neglect of Becky's three children, David, Erin and Ronnie. The intake alleged that, on August 30, Ronnie had died as a result of a hit and run accident when he and the other two children were left in the care of an unprotective caregiver. Department investigators Elizabeth Cibrian and Patrick Hill located Becky and her boyfriend, Peter, in a Kilgore residence, and when Cibrian questioned Becky about the children and possible drug use, Becky told the investigators that she had used methamphetamine about two weeks prior, that Peter had used methamphetamine a day or two before, and that the children were at their maternal grandmother's house.

Cibrian spoke with the grandmother, and after meeting with the children, Cibrian described Erin as very quiet, shy, and passive and said that she did not communicate well. When she spoke with David about the hit and run accident, David told her that they were walking back from church with Melissa Montana and that a vehicle was coming towards them, got up on the curb, and ran over Ronnie. The next day Cibrian spoke with Becky, who admitted that she would fail a drug test because she had used methamphetamine a week earlier and, in order to cope with the stress, had also used on the day Ronnie passed away.

Becky admitted that, on the day of the hit and run, she had dropped the children and Montana off at church and that Montana was supervising the children that day. She characterized Montana as someone with "problems," who was "more like a 17-year-old than a 27-year-old." Montana started dating one of Becky's friends, and as a result, Montana eventually moved into Becky's house and began helping with the children. Becky admitted that Montana smoked marihuana, but denied that she had done so recently.

Cibrian met with Montana and described her as "really passive during [their] conversation" and "rather slow in speaking." In Cibrian's opinion, Montana did not seem competent to supervise children. She later received intake reports regarding allegations that, while at Becky's home, Montana had sexually abused David while he was in her care, but the Department was unable to pursue those claims because it was unable to locate Montana. Becky was aware that David had told the Department that he and Erin had been molested while in her home, but she did not believe he was telling the truth.

The children were subsequently removed from Becky's care and placed into a temporary foster home. The court ordered Becky and Roger to complete the Department's family service plan, which included evaluations, classes, counseling, and drug rehabilitation. Becky completed the psychological evaluation, but did not complete the required parenting class because she was incarcerated. She acknowledged that she had been arrested five times since the termination case began and that she failed to complete the ordered counseling because she was in and out of jail. Roger testified that, due to his incarceration, he was only able to complete one of the ordered services from the family service plan.

Roger, the father of Erin and Ronnie, testified that he and Becky were together from 2009 to 2013. He testified that he loved his children and that he was always a part of their lives except for the periods when he was incarcerated. In 2012, he was paroled, and he moved back home with Becky and the children. He subsequently found full-time employment and was able to support his family. However, at the time of the termination proceeding, Roger admitted that he was an inmate of the Texas Department of Criminal Justice, serving a fifteen-year sentence for aggravated assault with a deadly weapon and evading arrest in a motor vehicle, stemming from a confrontation between himself, Becky, and the man she was with at the time. Because he and Becky had parted ways, he was not living at the home when Ronnie was killed, and he had no part in the circumstances or events that led to the children being removed from Becky's care.

The trial court found that it was in the children's best interests to terminate Becky's parental rights to Erin and David and Roger's parental rights to Erin. The trial court found sufficient statutory grounds to terminate Becky's parental rights because she knowingly endangered the physical or emotional well-being of the children in violation of Section 161.001(b)(l), grounds (D) and (E), of the Family Code, constructively abandoned the children in violation of ground (N), failed to comply with the court's order to complete the Department's family service plan in violation of ground (O), and used a controlled substance in violation of ground (P). The trial court terminated Roger's parental rights because he constructively abandoned Erin in violation of ground (N) and that he had knowingly engaged in qualifying criminal conduct and was unable to care for Erin for not less than two years from the date the Department filed its petition in violation of ground (Q). The Department was appointed the permanent managing conservator of the children.

II. Termination of Parental Rights

"The natural right existing between parents and their children is of constitutional dimensions." 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." 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." In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). This Court is therefore 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 500. "[I]nvoluntary termination statutes are strictly construed in favor of the parent." 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. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2016); 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." TEX. FAM. CODE ANN. § 101.007 (West 2014); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

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 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. 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. 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. at 108 (quoting 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." J.F.C., 96 S.W.3d at 266. "[I]n making this determination," we must undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." A.B., 437 S.W.3d at 503 (quoting C.H., 89 S.W.3d at 26).

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 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." In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing C.H., 89 S.W.3d at 26).

III. The Evidence Is Legally and Factually Sufficient to Show that Termination of Becky's Parental Rights Was in the Children's Best Interests

In her sole point of error, Becky contends that the evidence is legally and factually insufficient to support the trial court's finding that termination was in the best interests of the children.

Termination of the parent-child relationship can only occur if termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2). "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.I.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)). The best-interest standard is not met merely because a child might be better off living elsewhere with more prosperous parents. See In re A.I.D.H., 373 S.W.3d 187, 197 (Tex. App.—Amarillo 2012, pet. denied); In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Forth Worth 2001, no pet.). The focus of a best interest analysis is on the best interest of the child, not the best interest of the parent. See Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ).

In determining the best interest 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.

At the time of trial, David and Erin were eight and seven years old, respectively. While they "have thrived" while in foster care, improving emotionally and academically, there was no evidence indicating their desires. See In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied); see In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014, pet. denied). Therefore, the first Holley factor is neutral.

The children in this case have special physical and emotional needs that will continue into the foreseeable future. Erin is on one medication for mood and focus and another medication for depression, while David is taking medications for depression and sinus issues. Erin is struggling in school and will be retained in the first grade for another year. David is in special education and was briefly placed under psychological care after making homicidal and suicidal threats. There is also evidence that both children have exhibited extreme cruelty to animals. Additionally, the children have made an outcry of sexual abuse that occurred "when they were in the home with [Becky]." The substantial present and future needs of the children weigh strongly in favor of termination.

Becky's continuing drug habit shows poor judgment that consistently endangers the children's physical and mental well-being. See In re M.R., 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.) (parental drug use reflective of poor judgment). Becky does not contest the trial court's findings that she used illegal drugs, knowingly endangered the children, and constructively abandoned them. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (P). She admitted that she and her live-in boyfriend had an ongoing methamphetamine habit and that they had used drugs while the children were in the house, but she testified that Peter was "no longer in the picture at all." Even though she was faced with possibly losing her children, she continued to use drugs while the termination case was pending, having twice tested positive for methamphetamine. In addition, she failed to submit to other scheduled drug tests; was arrested five times, including three for drug-related offenses; and spent the majority of the case "in and out of jail." The trial court could have inferred that her drug problems and poor judgment would continue into the future, creating a continuing danger to the children's well-being. See Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) ("Past is often prologue.").

David told Becky that he and Erin had been sexually assaulted, and one of the alleged perpetrators was Montana, the "special needs" person in whose care Becky frequently left the children. There was testimony that Montana had used drugs when the children were asleep or outside playing. After the children were removed from Becky's care, she only visited the children twice, arriving late both times. At Becky's request, a third visitation was arranged for the children's birthdays, and when she failed to show up, the children were "really upset." This strong evidence of poor judgment and lack of parental abilities is also evidence that the parent-child relationship is not a proper one. Accordingly, the third, fourth, and eighth factors weigh heavily in favor of termination.

Becky blamed drug use for her inability to complete the Department's family service plan, and she argues that she is currently in a substance rehabilitation program. She completed her psychological evaluation and was diagnosed with psychosomatic and bipolar disorders, but she failed to appear for a drug treatment program and was discharged from her substance abuse counseling for making appointments and then failing to attend. Though she was incarcerated at the time of the hearing, she testified that she had signed up for "GED classes, parenting classes, and drug classes through the [Substance Abuse Felony Punishment (SAFP)] program." The fifth factor weighs in favor of termination. See Wilson v. State, 116 S.W.3d 923, 930 (Tex. App.—Dallas 2003, no pet.) (parent's lack of motivation to learn and improve parenting skills is evidence supporting best interest determination).

Becky admitted that she did not have a home for the children. She initially planned for the children to be placed with her mother, but her mother's home was ruled out because she had a "prior CPS history" and her son, who lived in the back of her house, had an "extensive criminal history." Becky testified that her subsequent plan was to have the children stay in temporary foster care until she was transferred into a SAFP facility, where she would complete her GED and take parenting classes while undergoing substance abuse treatment, before spending one or two months "in a rehab center in Tyler." Her mother and brother were willing to help her so she would not be "standing alone [any] more." Upon getting her GED, she planned to get a job so she could provide a stable home for her children.

The children's health and behavior has improved in the foster home, where they are "doing great." Although the foster parents do not intend to adopt the children, they will become adoptable as they continue to improve there. Stability and permanence are paramount in the upbringing of children, and due to the uncertain nature of Becky's future, the sixth and seventh factors weigh in favor of termination. See In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); see also In re J.D., 436 S.W.3d 105, 119-20 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (same) (fact-finder can compare parent's plan for child with Department's and consider whether plans and expectations of each are realistic, weak, or ill-defined). Finally, Becky fails to raise any legitimate excuses for her acts or omissions.

Based on the foregoing analysis of the Holley factors, we find that the trial court did not abuse its discretion in finding that termination of Becky's parental rights was in the children's best interests under Section 161.001(b)(2). Accordingly, we overrule Becky's point of error and affirm the trial court's judgment terminating her parental rights to David and Erin.

IV. There Is Sufficient Evidence to Support the Grounds for Terminating Roger's Parental Rights

In his second point of error, Roger contends that the Department failed to present clear and convincing evidence that he knowingly engaged in criminal conduct that resulted in his confinement and inability to care for Erin for not less than two years from the date the Department filed its petition. See TEX. FAM. CODE ANN. § 161.001(b)(1)(Q).

Section 161.001(b)(1), ground (Q), of the Texas Family Code provides that a parent's rights may be terminated when the parent "knowingly engaged in criminal conduct that has resulted in the parent's: (i) conviction of an offense; and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition." TEX. FAM. CODE ANN. § 161.001(b)(1)(Q). Focusing on a parent's future confinement and inability to care for the child, ground (Q) is to be read prospectively because it is meant to protect children whose parent or parents will be incarcerated for a period exceeding two years following the beginning of the termination proceedings. A.V., 113 S.W.3d at 360-61. "Thus, if the parent is convicted and sentenced to serve at least two years and will be unable to provide for his or her child during that time, the State may use ground (Q) to ensure that the child will not be neglected." Id. at 360.

In March 2015, Roger was convicted of aggravated assault with a deadly weapon and evading arrest or detention with a vehicle, and he was sentenced to serve fifteen years in prison. He was incarcerated before the Department filed its petition for termination on September 9, 2015, and due to his fifteen-year sentence, he remained incarcerated throughout the termination proceedings. He does not contest the trial court's finding that he knowingly engaged in criminal conduct which resulted in a criminal conviction and incarceration for not less than two years following the Department's filing. Therefore, we accept those findings as proven by clear and convincing evidence.

Once it was established by clear and convincing evidence that Roger knowingly engaged in criminal conduct resulting in his conviction and confinement for at least a two-year period after the filing of the petition, the burden then shifted to Roger to produce some evidence showing he made arrangements for the care of Erin during his imprisonment. See In re H.B.C., 482 S.W.3d 696, 702 (Tex. App.—Texarkana 2016, no pet.). If the parent meets that burden of production, the Department then has the burden of persuasion to show that the parent's provision or arrangement would not satisfy his duty to the child. Id.

Here, Roger testified that his father, Morgan, and stepmother, Linda, would be willing and able to care for Erin while he was in prison. They live in a three bedroom, two bath home in a "very nice," quiet neighborhood of Paris, California. According to Roger, Morgan owned a construction business called Redline Builders and was also employed "in advertisement with [Linda,]" and he testified that they had sufficient income to support themselves and Erin. However, Roger testified that Morgan was only willing to care for the child if a paternity test proved that Roger was Erin's father. Morgan did not appear or testify during the proceedings, and neither Morgan nor anyone else testified on Roger's behalf that they were willing to care for Erin during his incarceration. Kemy Daniels, a Department caseworker, testified that, to her knowledge, Erin had had no contact with Morgan and that no one, including Roger, Roger's counsel, or anyone associated with Morgan, had asked the Department to consider Morgan for placement.

Roger argues that he met his burden and that the Department failed to successfully rebut his testimony that he could properly care for Erin by placing her with his father and stepmother during his incarceration. However, an incarcerated parent's testimony that family members could care for the child does not render the evidence legally or factually insufficient to support a finding of inability to care. See In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied). Here, the paternal grandfather, Morgan, did not testify. Moreover, he did not contact the Department regarding placement. Accordingly, we have only Roger's testimony to establish this fact, and even if Roger's testimony is taken as true, Morgan conditioned his willingness to care for the child on the results of a paternity test to which, as detailed below, Roger failed to show himself entitled. Based on this evidence, the trial court's finding of inability to care was supported by much more than a scintilla of evidence and was not against the overwhelming weight of the evidence. Therefore, we find the evidence supporting the trial court's finding both legally and factually sufficient and overrule this point of error.

"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 O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) (quoting A.V., 113 S.W.3d at 362); In re K.W., 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.)); see In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no pet.). Therefore, having found sufficient evidence to support termination under ground (Q), we need not address Roger's first point of error regarding the sufficiency of the evidence under ground (N). See O.R.F., 417 S.W.3d at 37.

V. Roger's Challenge to the Court's Best-Interest Finding Was Waived Due to Inadequate Briefing

In his third point of error, Roger argues that there is legally and factually insufficient evidence to support the trial court's determination that termination was in the best interest of the child. We overrule this point of error because it has been inadequately briefed and is, therefore, waived.

The Rules of Appellate Procedure require that the appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i); Moseley v. Arnold, 486 S.W.3d 656, 660 n.5 (Tex. App.—Texarkana 2016, no pet.); In re Estate of Curtis, 465 S.W.3d 357, 379 (Tex. App.—Texarkana 2015, pet. dism'd). In his brief of this point of error, Roger fails to cite any authority in support of his argument or provide any substantive analysis of the evidence regarding the child's best interest. "[F]ailure to cite authority in support of a point of error waives the complaint." Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex. App.—El Paso 1997, no writ); see also Ebner v. First State Bank of Smithville, 27 S.W.3d 287, 303 n.28 (Tex. App.—Austin 2000, pet. denied) (issue without argument or authority is waived). Roger has failed to demonstrate how the evidence is insufficient to support the trial court's finding that termination of his parental rights was in the child's best interest. Therefore, we find that this point of error is waived as inadequately briefed. See Thomas v. Graham Mortg. Corp., 408 S.W.3d 581, 595 n.5 (Tex. App.—Austin 2013, pet. denied).

VI. Roger Was Not Entitled to a Paternity Test

In Roger's remaining points of error, he contends that the trial court "reversibly erred in denying genetic testing" because (a) Erin would have been better off having the test done and (b) it denied him the right to raise a defense to termination.

On September 28, 2011, more than two years after Erin was born and while Roger was incarcerated, he was adjudicated to be Erin's father through a "Default Order Establishing the Parent-Child Relationship." TEX. FAM.CODE ANN. §160.637(a)(2) (West 2014). Prior to the termination hearing, Roger filed a motion requesting a DNA test in order to verify his paternity. After a hearing, the trial court denied that motion. However, during his testimony, Roger again moved for a DNA test to determine paternity. After a brief recess, the trial court denied the motion, noting that Roger had failed to legally challenge the paternity adjudication, had testified that he was Erin's father, and afterward, had not denied paternity. Moreover, the trial court found that "the only basis for the motion" was "to satisfy the paternal grandfather that his own son actually [was] the father."

According to Section 160.637(e) of the Family Code, Roger can only challenge the adjudicated fact of biological paternity "under the laws of this state relating to appeal, the vacating of judgments, or other judicial review." TEX. FAM. CODE ANN. § 160.637(e) (West 2014). After the 2011 adjudication order, Roger did not file a motion for new trial, challenge the order on appeal, file a bill of review, or otherwise challenge the order "under the laws of this state." See TEX. R. CIV. P. 329b(d), (f). Having failed to properly challenge the order adjudicating paternity, he was barred from collaterally attacking it during this termination proceeding, and the trial court properly denied Roger's motions. See In re X.B., 369 S.W.3d 350, 354 (Tex. App.—Texarkana 2012, no pet.) (errors that render an order erroneous or voidable are subject only to direct attack). Accordingly, we overrule this point of error.

We affirm the trial court's order terminating Roger's parental rights to Erin.

Ralph K. Burgess

Justice Date Submitted: December 21, 2016
Date Decided: March 16, 2017