In re Interest of L.C.L.

• Decision Date: 31 March 2020
• Docket Number: NO. 14-19-00062-CV,14-19-00062-CV
• Citation: 599 S.W.3d 79
• Parties: In the INTEREST OF L.C.L. and M.E.M., Children
• Court: Texas Court of Appeals

599 S.W.3d 79

In the INTEREST OF L.C.L. and M.E.M., Children

NO. 14-19-00062-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed March 31, 2020

EN BANC MAJORITY OPINION

Meagan Hassan, Justice

Appellant F.L. ("Mother") appeals the trial court's final order terminating her parental rights to her children L.C.L. ("Lorenzo") and M.E.M. ("Melissa").¹ The trial court terminated Mother's parental rights on predicate grounds of endangerment and failure to comply with the service plan for reunification. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), and (O). The trial court further found that termination of Mother's parental rights was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2).

On appeal, Mother asserts six issues, most of which are duplicated in each section of her brief. Mother's issues can be summarized as follows: (1) the trial court erred in failing to file findings of fact and conclusions of law; (2) the trial court violated Mother's constitutional rights to (a) due process and due course of law by failing to give her a family services plan in Spanish (the language she understands), and (b) equal protection; (3) the evidence presented at trial was legally and factually insufficient to support the trial court's findings (a) of endangerment, (b) of failure to follow a family service plan, and (c) that termination is in the best interest of the children; and (4) the trial court erred by admitting illegally obtained evidence. A panel of this court affirmed the trial court's final order. Mother filed a motion for en banc reconsideration, a majority of this court voted to reconsider this case, and the en banc court heard oral argument. After analyzing the evidence presented at trial and in concluding there is not clear and convincing evidence that termination was in the best interest of the children, we reverse the portions of the trial court's final order terminating Mother's parental rights, we affirm the remaining challenged portions of the trial court's final order, and we remand this case to the trial court for further proceedings limited to Texas Family Code section 161.001(b)(2).

BACKGROUND

On March 22, 2016, the Department of Family and Protective Services (the "Department") received a referral alleging neglectful supervision of Lorenzo, Melissa, and A.M. (another child in the home, age 15). Specifically, the referral alleged that the children were often left home alone, that there was no electricity in the home, and that the children were very thin.

After preliminary research into the case, Alexis Wilson, the Department caseworker, visited Mother and the children in their home on May 25, 2016. The caseworker did not observe any marks or bruises on either Lorenzo or Melissa and noted that they both appeared clean, healthy, and developmentally on target. She also noted the home appeared to look appropriate, had all working utilities, and had no safety hazards. Additionally, she noted there was plenty of leftover food in the freezer. A.M. informed the caseworker that there was no drug or alcohol use in the home, that she watches her siblings when her mother leaves the house, and that her mother had never left home for days at a time.

The caseworker then asked Mother to take a drug test, which she agreed to do. The result of the initial urine drug test was negative; the results from the hair test showed positive for marijuana and cocaine. The children were subsequently removed from Mother's care on June 23, 2016. On June 24, 2016, the Department filed an Original Petition for Protection of a Child for Conservatorship and for Termination in Suit Affecting the Parent-Child Relationship based upon Mother's positive drug test and Mother's alleged inability to provide appropriate caregivers for the children. Initially, the children were placed in separate foster homes. On October 20, 2016, Lorenzo and Melissa were moved together to a foster home and stayed together even when they were moved to several other foster homes over the course of the proceedings. A bench trial was initially called on December 11, 2017, recessed, and continued multiple times over the next year (on March 5, 2018, April 23, 2018, May 2, 2018, October 30, 2018, and November 27, 2018). The trial court signed a Decree for Termination ("final order") on December 31, 2018, in which the trial court (among other things) terminated the parent-child relationship between Mother and her children, Lorenzo and Melissa.

STANDARD OF REVIEW

The involuntary termination of parental rights implicates fundamental constitutional rights. Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) ; In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Because of the severity and permanency of terminating the parental relationship, Texas requires clear and convincing evidence to support such an order. See generally Tex. Fam. Code Ann. § 161.001 ; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002).

On appeal, Mother challenges the legal and factual sufficiency of the evidence supporting the trial court's order terminating her parental rights pursuant to Texas Family Code section 161.001(b). Section 161.001(b) permits the termination of a parent-child relationship if the trial court finds by clear and convincing evidence that (1) one or more predicate acts enumerated in section 161.001(b)(1) was committed, and (2) termination is in the best interest of the child. In re C.H. , 89 S.W.3d 17, 23 (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 ; In re J.F.C. , 96 S.W.3d at 264.

Reviewing Mother's legal sufficiency challenge under the clear and convincing evidentiary standard, we "should 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.O.A. , 283 S.W.3d 336, 344 (Tex. 2009). We assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved. In re G.M.G. , 444 S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

In reviewing termination findings for factual sufficiency of the evidence, we consider and weigh all the evidence, including disputed or conflicting evidence. In re J.O.A. , 283 S.W.3d at 345. "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. We give due deference to the factfinder's findings and we do not substitute our judgment for that of the factfinder. In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).

ANALYSIS

We address Mother's issues out of order, determining rendition issues before remand issues because rendition affords Mother the greatest relief.² Accordingly, we begin by analyzing Mother's third issue, within which she raises several different arguments we address in turn.

I. Endangerment Findings

Mother challenges the legal and factual sufficiency of the evidence to support the trial court's endangerment findings under Texas Family Code section 161.001(b)(1)(D) and (E).

Courts are authorized to terminate parental rights if the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child" or "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." Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). The sole basis for termination of Mother's rights was that she tested positive for drugs both initially and throughout the proceedings. However, there was no evidence adduced at trial connecting Mother's positive drug tests to any activity that endangered her children. A plain language reading of the statute requires a causal connection between Mother's drug use and the alleged endangerment.

In many cases, competent evidence is introduced at trial to prove that a parent's drug use rises to the level that it endangers the children. In this case, however, no such proof exists in the record. The caseworker testified that she "believe[s] testing positive for drugs is endangering children"; this was the only "evidence" presented at trial that Mother's drug use endangered her children. The caseworker did not identify any behavior endangering the children. When pressed by Mother's trial counsel, the caseworker answered that she was not able to assert a specific act that placed the children in danger because of the Mother's use of drugs. The caseworker's conclusory statement was the only support for the allegation that Mother's drug use endangered her children. Further, there was no evidence of criminal charges related to Mother's drug use nor was there proof of threat of incarceration due to alleged drug use. Simply put, there was legally insufficient evidence at trial to support an endangerment finding.

Conclusory statements are not evidence. See In re A.H. , 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) ("[C]onclusory testimony, such as the caseworker's, even if uncontradicted, does not amount to more than a scintilla of evidence."). The caseworker's conclusory statements that a parent's drug use de facto endangers their children is insufficient to support the trial court's finding by clear and convincing evidence that the standards for termination have been met under Texas Family Code section 161.001(b)(1)(D) and (E). See In re B.R. , 456 S.W.3d 612, 617 (Tex. App.—San Antonio...