In re Interest of R.W.

• Citation: 627 S.W.3d 501
• Decision Date: 10 June 2021
• Docket Number: No. 06-21-00012-CV,06-21-00012-CV
• Court: Court of Appeals of Texas
• Parties: In the INTEREST OF R.W., a Child

627 S.W.3d 501

In the INTEREST OF R.W., a Child

No. 06-21-00012-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: May 18, 2021

Date Decided: June 10, 2021

Christina G. Hollwarth, Longview, Civil - Ad Litem for R.W., a Child.

Natalie A. Anderson, for Appellant.

Brittany Mears, Rebecca L. Safavi, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Stevens

Following a bench trial, the trial court terminated Mother's parental rights to R.W.¹ on three grounds specified in the Texas Family Code—Section 161.001(b)(1), subsections (D), (N), and (O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (N), (O) (Supp.). The trial court further found that termination was in R.W.'s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2) (Supp.). On appeal, Mother challenges the legal and factual sufficiency of the evidence supporting the trial court's findings.² Although we find that the trial court's ground (D) finding was not based on legally or factually sufficient evidence, we find that its ground (O) and best-interest findings are supported by legally and factually sufficient evidence. We, therefore, modify the judgment by deleting the ground (D) finding and, as modified, affirm the trial court's judgment.

I. Standard of Review

"The natural right existing between parents and their children is of constitutional dimensions." In re E.J.Z. , 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, 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, 120 S.Ct. 2054, 147 L.Ed.2d 49 (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) ). " ‘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 ) (citing In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 2009) ). Based on this standard, we are 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. (quoting A.B. , 437 S.W.3d at 500 ).

"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 L.E.S. , 471 S.W.3d 915, 920 (Tex. App.—Texarkana 2015, no pet.) (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.) ). "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." 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 H.R.M. , 209 S.W.3d at 109 ) (quoting In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002) ) (citing 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 factfinder could not have credited in favor of the finding is so significant that a factfinder 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 ).

"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) ) (citing 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 C.H. , 89 S.W.3d at 26 )).

"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 ); (citing In re K.W. , 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.) ). Yet, because the trial court's finding under ground D "may have implications for ... parental rights to other children," due process demands that we review the trial court's findings under this ground. In re N.G. , 577 S.W.3d 230, 234 (Tex. 2019) (per curiam).

II. Background

The Department of Family and Protective Services (Department) removed two-year-old R.W. from Mother's care on February 1, 2019, pursuant to the trial court's order for protection of a child in an emergency. See TEX. FAM. CODE ANN. § 262.102. The removal was based on Mother's inability to maintain appropriate housing and to provide a safe and stable environment for R.W.

Jessica Kenney, a Department caseworker, testified that, when she initially met with Mother in February 2019, Mother was residing in a homeless shelter. Mother was required to leave the shelter, though, due to "behaviors with her son and also with the staff." When Mother found a place to live outside of the shelter, Kenney could not perform the required background checks because "there were multiple people living in the home that wouldn't agree to give [her] information." Kenney testified that, at the time she concluded her work on the case after approximately six months, she did not believe that it was in R.W.'s best interest to be placed back with Mother.

Mother reported to Kenney that she was frightened of Father and stated that she moved from Texarkana to Longview to escape domestic violence by Father. According to Mother, R.W. was present when Father hit her. As a result, Mother got a protective order against Father and has not spoken with Father since 2018. Mother testified that she has an older child by a different father who lives with her paternal grandmother because Mother was "[d]ealing with the domestic issue with [Father]."

Mother was advised by her Family Based Safety Services (FBSS) caseworker that it was in her best interest to leave Texarkana and move to Longview and get help. As a result, Mother moved to a shelter in Longview and later moved to a home on Cherrywood. Mother left Longview because she saw Father and his girlfriend almost every time she went to the library. Mother then moved to Lewisville, Arkansas, to stay with a family member. When that situation did not work out, Mother walked to Texarkana rather than to Longview, because Texarkana was closer.

Jessica Lopez, a conservatorship specialist with the Department, testified that, between the time she was assigned to the case in September 2019 and the time of trial in November 2020, Mother had five or six different residences. After Mother left a domestic violence shelter in Longview, she moved to a residence in Longview. After that, Mother moved to Texarkana, Arkansas, where she lived in a shelter. She then moved to Lewisville, Arkansas, where she lived with her cousin. When Mother left her cousin's house, she walked from Lewisville to Texarkana and was almost hit by a truck on her journey. Mother stayed with friends after she arrived in Texarkana.

According to Lopez, Mother was unable to meet R.W.'s basic needs, such as food, shelter, and clothing, and could not provide a stable and safe environment for R.W. Lopez testified that such an environment would include a home with a designated sleeping area and access to running water, food, and utilities. Such an environment would also include positive interactions with other children and adults, as well as extracurricular activities to promote R.W.'s educational status. Lopez testified that, to thrive, children need a loving, caring home that incorporates structure and stability. According to Lopez, Mother was unable to provide such a home.

Although Mother had obtained an apartment in Texarkana approximately one month before trial, Lopez had not seen that residence at the time of trial. Lopez stated that Mother was employed at Pilgrim's Pride at the time of trial but had been working there for less than one month.

Katrina Hines-Ligon, a licensed professional counselor, testified that she counseled Mother on referral from the Department for a total of ten sessions. Hines-Ligon was primarily concerned with Mother's ability to maintain stable housing throughout ten counseling sessions over a six-month timeframe. When Mother began counseling, she was living in a shelter. Then she moved in with a cousin and later moved back to a shelter. Hines-Ligon opined that, if Mother continued to experience housing instability, it would be difficult for a child to thrive in such an environment. According to Hines-Ligon, a child requires stability and routine to know that the parent will provide for their basic needs. Housing instability detracts from the child's ability to thrive.

One of Mother's counseling goals centered on her ability to be a protective parent and in modeling appropriate behaviors...