Opinion
05-23-00090-CV
06-28-2023
IN THE INTEREST OF M.K., A CHILD
On Appeal from the 468th Judicial District Court Collin County, Texas Trial Court Cause No. 468-30007-2022
Before Justices Carlyle, Garcia, and Miskel
MEMORANDUM OPINION
DENNISE GARCIA JUSTICE.
Appellant (Mother) appeals a judgment terminating the parent-child relationship between her and her son M.K. She raises three issues challenging the sufficiency of the evidence to support the trial judge's findings that support the judgment. We affirm.
I. Background
On December 14, 2021, the Department of Family and Protective Services filed in Galveston County its original petition for protection of a child, for conservatorship, and for termination with respect to M.K. The Department alleged that M.K. had been born five days earlier and that Mother was in prison. The trial judge signed an order appointing the Department M.K.'s temporary sole managing conservator. Evidence adduced at trial indicated that Mother was scheduled to be released from prison on December 26, 2021.
On December 29, 2021, the case was transferred to Collin County.
In February 2022, the new presiding judge signed an order for expedited placement authorizing M.K. to be placed with Mother's sister J.G. and her husband in Georgia. Evidence adduced at trial confirmed that M.K. was in fact successfully placed with J.G. and her husband.
On June 10, 2022, the trial judge signed an order that required Mother to participate in certain services and submit to random drug tests.
M.K.'s father, B.D., was identified by a DNA test, and he signed an affidavit relinquishing his parental rights.
The case was tried without a jury on December 12 and 13, 2022. Mother appeared at trial through counsel but did not appear in person. In January 2023, the trial judge signed a final order terminating Mother's rights regarding M.K. pursuant to Texas Family Code § 161.001(b)(1)(N) and (O). The order also terminated M.K.'s father's rights. Mother timely appealed.
II. Issues on Appeal
Mother raises three issues on appeal, which we summarize as follows:
1. The evidence was legally and factually insufficient to support the trial judge's finding under Family Code § 161.001(b)(1)(N) that Mother constructively abandoned M.K. during the pendency of the CPS case.
2. The evidence was legally and factually insufficient to support the trial judge's finding under Family Code § 161.001(b)(1)(O) that Mother failed to comply with a court order under the circumstances specified in that subsection.
3. The evidence was legally and factually insufficient to support the trial judge's finding that terminating Mother's parental rights was in M.K.'s best interest.
III. Standard of Review
Because terminating parental rights implicates fundamental interests, the clear and convincing standard of proof applies at trial in termination cases. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). "Clear and convincing evidence" is the measure or degree of proof that will produce in the factfinder's mind a firm belief or conviction as to the truth of the allegations to be established. Tex. Fam. Code Ann. § 101.007.
Our standards of review reflect the elevated burden of proof at trial. In re N.T., 474 S.W.3d 465, 475 (Tex. App.-Dallas 2015, no pet.). Under both legal-and factual-sufficiency standards, we consider all the evidence, defer to the factfinder's determinations as to witness credibility, and determine whether the factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. Id.; see also In re A.B., 437 S.W.3d at 503 (describing the factfinder as "the sole arbiter when assessing the credibility and demeanor of witnesses"). The distinction between the two standards lies in the extent to which we may consider disputed evidence contrary to a finding. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
In a legal-sufficiency review, we credit evidence that supports the finding if a reasonable factfinder could have done so, and we disregard contrary evidence unless a reasonable factfinder could not have done so. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). However, we do not disregard undisputed facts that do not support the finding. Id. at 113. Even evidence that does more than raise surmise and suspicion will not suffice as clear and convincing unless it can produce a firm belief or conviction that the allegation is true. Id. If no reasonable factfinder could form a firm belief or conviction that the allegation is true, the evidence is legally insufficient. Id.
In a factual-sufficiency review, by contrast, we must weigh disputed evidence contrary to the finding against all the evidence that supports the finding. In re A.C., 560 S.W.3d at 631. "Evidence is factually insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true." Id.
Although our review must be "exacting," in light of the constitutional interests at stake, it must not be so rigorous as to require, in effect, proof beyond a reasonable doubt. In re T.J., No. 05-22-00954-CV, 2023 WL 1988838, at *3 (Tex. App.- Dallas Feb. 14, 2023, no pet.) (mem. op.).
IV. Analysis
A. Issue Two: The Sufficiency of the Evidence to Support the § 161.001(b)(1)(O) Finding
Mother's second issue on appeal challenges the legal and factual sufficiency of the evidence to support the trial judge's finding under Family Code § 161.001(b)(1)(O). We address it first because we conclude that it is without merit, which makes it unnecessary for us to address her first issue on appeal.
1. Applicable Law
A court may terminate a parent-child relationship upon findings by clear and convincing evidence that: (1) the parent engaged in one or more of the courses of conduct defined by § 161.001(b)(1)(A)-(T), and (2) termination is in the child's best interest pursuant to § 161.001(b)(2).
Section 161.001(b)(1)(O) requires proof that the parent
failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child.Id. § 161.001(b)(1)(O) (emphasis added). Mother challenges the sufficiency of the evidence only as to the italicized portion of subsection (O); that is, she contends that the Department adduced insufficient evidence to show that M.K. was removed from Mother for abuse or neglect under Family Code Chapter 262. Thus, we focus our discussion on that aspect of subsection (O).
Subsection (O) requires proof of abuse or neglect. In re E.C.R., 402 S.W.3d 239, 246 (Tex. 2013). "Abuse" and "neglect" are not defined in Chapter 262. In re S.M.R., 434 S.W.3d 576, 582 (Tex. 2014). Nor does Chapter 262 indicate that those terms have a special or technical meaning. Id. Accordingly, those terms should be applied according to their common usage. Id. Thus, whether a specific removal was for abuse or neglect depends on the surrounding facts and circumstances and is generally determined on a case-by-case basis. Id. at 583.
In the E.C.R. case, the supreme court considered and rejected the position, previously taken by some courts of appeals, that removal due to mere risk of abuse or neglect does not satisfy subsection (O). See 402 S.W.3d at 244-45, 246. The court reasoned that removal for endangerment can constitute removal for abuse or neglect within the meaning of subsection (O):
Consistent with chapter 262's removal standards, "abuse or neglect of the child" necessarily includes the risks or threats of the environment in which the child is placed. Part of that calculus includes the harm suffered or the danger faced by other children under the parent's care. If a parent has neglected, sexually abused, or otherwise endangered her child's physical health or safety, such that initial and continued removal are appropriate, the child has been "remov[ed] from the parent under Chapter 262 for the abuse or neglect of the child."Id. at 248 (emphases added). In that case, the trial judge ordered the removal of the mother's infant child, E.C.R., based on evidence that the mother had abused an older child, was incarcerated, and left E.C.R. with a boyfriend who was not E.C.R.'s father, had an extensive criminal history, and had physically abused her. Id. The trial judge found that there was sufficient evidence to satisfy a person of ordinary prudence and caution that E.C.R. faced an immediate danger to his physical health and safety, that the urgent need to protect him required his immediate removal, and that he faced a substantial risk of a continuing danger if he were returned home. Id. The supreme court held that the evidence and the trial judge's findings conclusively established that E.C.R. was removed from his mother under Chapter 262 for abuse or neglect, thus satisfying subsection (O). Id. at 248-49; see also In re T.W., No. 05-16-00232-CV, 2016 WL 3437589, at *5 (Tex. App.-Dallas June 21, 2016, pet. denied) (mem. op.) (upholding subsection (O) finding based on evidence that child "was at 'substantial risk' of abuse or neglect" without noting any evidence of actual abuse or neglect); cf. In re A.A., No. 21-0998, 2023 WL 3910142, at *6-8 (Tex. June 9, 2023) (adhering to and applying holdings in E.C.R.).
2. Application of the Law to the Facts
Mother argues that the evidence that she gave birth to M.K. while she was incarcerated is insufficient to support a finding of abuse or neglect of M.K. The Department responds that Mother's incarceration was not the sole reason for M.K.'s removal and that the evidence adequately supports the finding that M.K. was removed for abuse or neglect. We agree with the Department.
At trial, the trial judge admitted the following documents into evidence:
1. the Department's original petition for M.K.'s protection in this case, filed in the 306th District Court of Galveston County on December 14, 2021;
2. the affidavit of Department employee Tammy Cisneros, also filed in this case on December 14, 2021; and
3. the order for protection of M.K. in this case, which was signed by the presiding judge of the 306th District Court on December 14, 2021.
In her affidavit, Cisneros recited the following facts pertaining to M.K.'s removal. Mother was incarcerated when she gave birth to M.K. on December 9 or December 10, 2021. One report to the Department indicated that Mother was serving a 180-day sentence for interference with child custody and abandonment or endangerment of a child with criminal negligence. However, the Department learned that Mother had told the hospital that she was in jail for domestic violence. Mother had also told the hospital that three of her older children had been removed by CPS and that she wanted to release M.K. to J.K., who was Mother's husband or ex-husband. Collin County conservatorship caseworker Dabney Lessman advised the Department that both Mother and J.K. had extensive history with the Department and that neither had legal rights to any of their children. Moreover, the home that Mother and J.K. had shared, and that J.K. still lived in, lacked working utilities and was "deplorable, inside and out." Additionally, the couple had a years-long history of domestic violence and drug abuse. The Department also learned from a Collin County assistant district attorney that J.K. was not M.K.'s legal or biological father and that J.K. was in jail when Mother conceived M.K. According to that information, J.K. did not participate in drug testing "during his legal case," and he had "a long history of methamphetamine use so the baby would not be safe in his care."
Cisneros's affidavit also described two prior CPS cases, one dating to 2009 and the other to 2019, involving Mother, J.K., and several children. These cases involved domestic violence, drug use, injuries to the children, and unsanitary, dangerous living conditions. In May 2019, five children were removed after the police went to the house and found many potentially hazardous issues, including open beer cans within the children's reach, drug needles, and a loaded gun. Additionally, "[a]ll of the children were extremely filthy and had an overwhelming smell of someone who had not bathed in some time." Three of the children tested positive for methamphetamine in hair-strand tests. Moreover, and apparently as part of the same sequence of events, "[J.K.] assaulted [Mother] while she was trying to seek help at the police station." Cisneros stated that the "parental rights to all of [those] children have been terminated."
Cisneros further stated in her affidavit that the Department took emergency custody of M.K. because (1) the Department had concerns for M.K.'s immediate safety if he were placed in the home with J.K. and (2) there were no other alternatives due to Mother's incarceration status. Based on all the information stated in her affidavit, Cisneros stated, the Department believed that there was an immediate danger to M.K.'s health or safety and that there was a continuing danger to his physical health or safety if he were returned to Mother.
The trial judge's order for protection regarding M.K.'s removal includes the following findings:
2.2. The Court finds that the child has been removed pursuant to § 262.104, Texas Family Code, and further finds that:
2.2.1. there is an immediate danger to the physical health or safety of the child . . . .
We conclude that the foregoing evidence is legally and factually sufficient to support the finding that M.K. was removed from Mother under Chapter 262 for abuse or neglect. Under subsection (O), abuse or neglect of a child includes the risks or threats of the environment in which the child is placed. In re E.C.R., 402 S.W.3d at 248. That calculus includes the harm suffered or danger faced by other children under the parent's care. Id. In this case, the Cisneros affidavit supports the conclusion that Mother's other children suffered harm and faced significant dangers while they were under Mother's care and living in a home shared by Mother and J.K.
Moreover, if a parent has "endangered her child's physical health or safety" such that removal is appropriate, the child has been removed from the parent under Chapter 262 for abuse or neglect of the child. Id. In this case, the Department determined that Mother was endangering M.K. by planning to give him to J.K., who had a long history of domestic violence, drug use, and CPS involvement. These facts are akin to those in E.C.R., in which the mother left her infant son with a boyfriend who was not the boy's father, had an extensive criminal history, and had physically abused the mother. Id. And, also similar to the facts in E.C.R., the trial judge who initially presided over this case signed an order expressly finding that M.K. had been removed pursuant to § 262.104 of the Family Code and that there was an immediate danger to M.K.'s physical health or safety. See id. (describing the trial judge's findings of risks to E.C.R.).
For the foregoing reasons, we conclude that a reasonable factfinder could form a firm belief or conviction that M.K. was removed from Mother under Chapter 262 for abuse or neglect. And the record does not contain disputed evidence a reasonable factfinder could not have credited so significant that the factfinder could not have formed that firm belief or conviction. Accordingly, the evidence supporting the trial judge's subsection (O) finding is both legally and factually sufficient.
3. Conclusion
We overrule Mother's second issue on appeal. Because the evidence is legally and factually sufficient to support termination under § 161.001(b)(1)(O), we need not address Mother's first issue, in which she challenges the sufficiency of the evidence to support the trial judge's finding under § 161.001(b)(1)(N). See In re G.D.P., No. 05-19-01068-CV, 2020 WL 401760, at *5 (Tex. App.-Dallas Jan. 24, 2020, pet. denied) (mem. op.).
B. Issue Three: The Sufficiency of the Evidence to Support the Best-Interest Finding
Mother's third issue on appeal challenges the legal and factual sufficiency of the evidence to support the trial judge's finding that terminating Mother's parental rights was in M.K.'s best interest. See Fam. § 161.001(b)(2). Specifically, Mother argues that the evidence that termination was in M.K.'s best interest consisted solely of conclusory witness testimony to that effect. We disagree for the following reasons.
1. Applicable Law
A court may not terminate a parent's rights unless it finds by clear and convincing evidence that termination is in the best interest of the child. Id. The best-interest element is child-centered and focuses on the child's wellbeing, safety, and development. In re T.J., No. 05-22-00954-CV, 2023 WL 1988838, at *9 (Tex. App.-Dallas Feb. 14, 2023, no pet.) (mem. op.). The factfinder may consider the following factors as relevant to the best-interest determination:
(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 to promote the best interest of the child;
(6) the plans for the child by these individuals or by the agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.Id. at *9-10; see also Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Family Code § 263.307(b) lists additional best-interest factors that include (1) the child's age and physical and mental vulnerabilities, Fam. § 263.307(b)(1); (2) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home, id. § 263.307(b)(7); (3) whether the child's family is willing and able to seek, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision, id. § 263.307(b)(10); and (4) whether the child's family demonstrates adequate parenting skills, id. § 263.307(b)(12).
These factors are not exhaustive, and a best-interest finding need not be supported by evidence of every factor. See In re T.J., 2023 WL 1988838, at *10. The same evidence can be relevant to both § 161.001(b)(1) termination grounds and the child's best interest. Id. There need not be evidence of every factor, particularly if the evidence was undisputed that the parental relationship endangered the child's safety. Id. Although there is a strong presumption that maintaining the parent-child relationship serves the child's best interest, there is also a presumption that promptly and permanently placing the child in a safe environment is in the child's best interest. Id.
2. Application of the Law to the Facts a. M.K.'s Age, Vulnerability, Needs, and Desires
M.K. had just turned one year old when this case was tried, so he was too young to have any desires relevant to the best-interest analysis. The trial judge could reasonably conclude that (1) M.K.'s very young age and resulting vulnerability made it particularly important for M.K. to be kept in a safe environment and (2) Mother's history of drug problems, domestic violence, and CPS involvement made it unlikely that she would be able to provide a safe environment for M.K.
We conclude that the evidence regarding these factors supports the trial judge's best-interest finding.
b. Mother's Parental Abilities and Programs to Assist Mother
We see no evidence that Mother possesses the parental ability or skill to raise M.K., and there is ample evidence to the contrary.
The Cisneros affidavit details Mother's two prior cases involving abuse and neglect of her other children. A 2009 case involved drug use by Mother and J.K., neglect of their three children, and exposure of the children to drugs and violence. A final order was eventually entered that terminated J.K.'s rights to the children and appointed Mother their permanent managing conservator. In 2018, the Department received a new series of referrals concerning alleged neglect of the children. Finally, in May 2019, five children were removed from Mother and J.K.'s home because of the children's filthy condition, unsanitary and dangerous conditions in the home, the parents' drug usage, and the children's exposure to drugs and violence.
CPS caseworker Dabney Lessman testified that Mother completed services in connection with the 2019 case. However, there is no evidence that Mother's parental abilities actually improved after 2019, and Mother was incarcerated when M.K. was born in December 2021. The Department received a report that Mother's incarceration was for interference with child custody and abandonment or endangerment of a child, but Mother said that she was incarcerated for domestic violence. Either reason for her incarceration would tend to show that Mother lacks adequate parental abilities. Moreover, when M.K. was born, Mother's plan was to give custody of M.K. to J.K., who was not M.K.'s father and who had a history of drug use, domestic violence, and CPS involvement. Although Mother also identified her sister as a possible placement for M.K. when Cisneros explained the Department's concerns about releasing M.K. to J.K., Mother's initial plan to give M.K. to J.K. tends to show a lack of parental ability on Mother's part.
Lessman testified that Mother did not make any significant changes, better her parenting, or improve her ability to provide a safe environment for M.K. during the pendency of this case in 2022. Mother was permitted video visits with M.K., but she participated in about 50% of them at most. During this case, Mother did not participate in or provide proof of participation in any of the services listed in her service plan. She did not initiate any services or provide any reason for not performing her services. Moreover, she did not submit to any of the drug testing Lessman requested of her.
We conclude that substantial, nonconclusory evidence relevant to these factors supports the trial judge's best-interest finding.
c. The Plans for M.K. and the Stability of the Proposed Placement
Mother adduced no evidence specifically addressing her plans for M.K., but evidence was introduced showing that during the pendency of the case Mother pressed the Department to have M.K. placed with Mother's sister in Georgia, which is in fact what happened.
Lessman testified that M.K. was doing great in his placement with Mother's sister and that he was a happy and healthy child. Lessman further testified that Mother's sister was "committed to keeping [M.K.] long term." A permanency report that was admitted into evidence recites that Mother's sister and her husband "are willing to adopt [M.K.] if he's unable to return to either of his parents."
Based on this evidence, we conclude that the trial judge could reasonably conclude that these factors supported the best-interest finding.
d. Mother's Acts and Omissions Indicating that the Existing Parent-Child Relationship Is Not a Proper One and Any Excuses for Same
As discussed above, the record contains evidence that Mother did not take steps to be reunited with M.K. during the year this case was pending before trial. CPS caseworker Lessman testified that Mother did not participate in or provide proof of participation in any of the services listed in her service plan. She did not initiate any services or provide any reason for not performing her services. She did not submit to requested drug tests. She participated in half, at most, of the video visits that she was entitled to have with M.K. Additionally, Lessman testified that Mother did not appear at any of the court hearings in this case after it was transferred from Galveston to Collin County. Mother never gave Lessman a reason for not appearing at the court hearings. A May 2022 permanency report recites that Mother "doesn't appear to be interested in having [M.K.] returned to her care." We see no evidence that would provide an excuse for any of Mother's conduct.
On this evidence, the trial judge could reasonably conclude that these factors supported the best-interest finding.
3. Conclusion
After reviewing all the evidence in the light most favorable to the trial judge's best-interest finding and considering any undisputed contrary evidence, we conclude that the trial judge could reasonably form a firm belief or conviction that M.K.'s best interest would be served by terminating Mother's parent-child relationship with him. We also conclude that any disputed evidence supporting the finding that a reasonable factfinder could not have credited is not so significant that the trial judge could not have formed a firm belief or conviction that it is true. Accordingly, we hold that the evidence is legally and factually sufficient to support the trial judge's best interest finding.
We overrule Mother's third issue on appeal.
V. Disposition
We affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered.