In re M.R.

• Decision Date: 22 December 2022
• Docket Number: 13-22-00304-CV
• Parties: IN THE INTEREST OF M.R. AND X.R., CHILDREN
• Court: Texas Court of Appeals

IN THE INTEREST OF M.R. AND X.R., CHILDREN

No. 13-22-00304-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 22, 2022

On appeal from the County Court at Law of Aransas County, Texas.

Before Chief Justice Contreras and Justices Longoria and Silva

MEMORANDUM OPINION

CLARISSA SILVA JUSTICE

Appellant Evelyn appeals the trial court's order terminating the parent-child relationship between her and her two children, Matthew and Xander.^[1] By two issues, Evelyn argues that the trial court erred because there was legally and factually insufficient evidence to support (1) the enumerated grounds for termination, and (2) a finding that termination was in the children's best interest. We reverse and remand for further

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proceedings.

I. Background

Matthew and Xander were originally removed from Evelyn's care on March 26, 2018, when Matthew and Xander were eight and four years old, respectively. By the time of trial, Matthew was twelve and Xander was eight. According to Texas Department of Family and Protective Services (the Department) caseworker Julia Escamilla, the Department removed the children after it received a report that Matthew made an outcry that his mother had hit him, and he was expressing suicidal ideations. Escamilla testified that medical staff noted he had bruising although she herself never saw it.

At one point, the children were placed back with Evelyn on a "return and monitor" basis; however, the placement subsequently failed. Escamilla agreed that the return failed because Matthew made an "outcry about hitting" but she did not otherwise elaborate. Following the failed return and monitor, the trial court entered an agreed order appointing the Department as the permanent managing conservator of the children. The trial court thereafter ordered the children to be placed with their father, Ruben.^[2] The placement with Ruben also failed because he "assault[ed] his pregnant girlfriend in front of the children," for which he was placed on deferred adjudication community supervision. After the placements, the Department filed a new petition to terminate the parent-child relationship between each parent and child.

Only two witnesses testified at trial: Escamilla and Evelyn. The only exhibit entered

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was Ruben's order for deferred adjudication. Escamilla testified that Evelyn has been unable to provide a safe home environment for her children. When asked to expound on that, Escamilla explained that Evelyn recently moved into a three-bedroom home with her mother. Escamilla described the home as appearing cluttered and smelling like animal urine. Evelyn's teenage daughter and brother also lived in the home. Escamilla also stated that there had been concerns because some of the people Evelyn resided with would not provide their information so that the Department could perform background checks, which was required by her service plan. Escamilla also expressed concerns regarding Evelyn's ability to parent because Evelyn commented that she did not believe her children needed to be on psychotropic medication to treat their attention deficit hyperactivity disorder (ADHD). Escamilla testified that Evelyn enrolled the children in "mainstream classes" rather than the special education classes that the children required due to their delays.

Escamilla described Evelyn's visitation as "sporadic . . . due to the amount of placements that the [children] have had, the locations . . . and also . . . the availability of [Evelyn] to participate in visitation." However, Evelyn's visits were not scheduled; instead, Evelyn worked with the children's foster families to set up visits.^[3] Escamilla did confirm that Evelyn's visits were supervised and that "[t]he foster parents have stated that [Evelyn] is appropriate, that [she] brings them shoes, clothes, toys, things like that . . . ." Escamilla summarized the Department's belief that it was in the children's best interests to terminate the parent-child relationship:

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The Department feels it is in the children's best interest to terminate [Evelyn]'s rights to both children due to her ability to not be able to provide a safe and stable home environment for them, her inability to recognize their medical needs and educational needs and not being able to ensure that those needs are being met for both [children]. Her inability to provide mental-her ability to not provide [sic] the mental care that the children need as well. The physical disciplining is also an issue[,] and the Department does not feel like she is able to adequately care for her children

According to Escamilla, the children changed foster homes several times throughout the case, sometimes due to the children's behavior. As to the children's desires, Escamilla confirmed that both children wanted to return to their mother but equivocated by stating that the children's desires vary. Despite previously testifying that Evelyn had not complied with her family plan of service and visited sporadically, Escamilla agreed during cross examination that Evelyn had completed all the services requested of her, remained drug-free, coordinated and attended her own visits, was gainfully employed, and remained in the same residence for at least nine months, and potentially longer.

Evelyn testified that she completed all the services requested of her. When asked what she learned from her parenting course, Evelyn explained she learned how to discipline her children, "how to tell them it[ i]s okay to say no[,] and let them cry if they have to cry." Evelyn elaborated that to discipline her children, she would put them in time out or take away their electronics. Although Evelyn confirmed she did not believe the children needed to be on psychotropic medication, she stated that she administered their prescribed medications during the return and monitor period.

According to Evelyn, the home she was living in was a four-bedroom home and the children would have their own room if they were returned to her. Evelyn further

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testified that she applied for government supported housing and believes that she would qualify if the children were returned to her. Evelyn also testified that she would enroll the children in special education classes and continue their medications if they continue to be prescribed. Evelyn denied hitting Matthew or Xander.

At the conclusion of trial, the trial court entered an order terminating the parent-child relationship between Evelyn and both children pursuant to predicate grounds (D) (placing the children in dangerous conditions or surroundings), (E) (engaging in endangering conduct), and (O) (failing to complete the family plan of service). See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). The trial court further found that termination was in the children's best interest. See id. § 161.001(b)(2).

The trial court issued findings of fact and conclusions of law. See Tex. R. Civ. P. 296. The trial court found that Evelyn failed to comply with the following provisions of her service plan: (1) cooperate with the Department; (2) demonstrate appropriate parenting skills attained during the parenting classes and utilize them to effectively parent the children; (3) maintain contact with her children by participating in visitations; (4) comply with visitation rules specified by the Department; and (5) provide a home that is free of domestic violence, clean, safe, and drug free for the children. The trial court's conclusions of law stated that clear and convincing evidence supported grounds for termination under Subsections (O) (failure to complete service plan) and (N) (constructive abandonment) only. This appeal followed.

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II. Standard of Review and Applicable Law

A. Standard of Review

“[I]nvoluntary termination of parental rights involves fundamental constitutional rights” and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting In re G.M., 596 S.W.2d 846, 846 (Tex. 1980)); In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.-Corpus Christi-Edinburg 2010, no pet.); see In re K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring) (“Termination of parental rights, the total and irrevocable dissolution of the parent-child relationship, constitutes the ‘death penalty' of civil cases.”). Accordingly, termination proceedings must be strictly scrutinized. In re K.M.L., 443 S.W.3d at 112.

A trial court may order termination of the parent-child relationship only if it finds by clear and convincing evidence that (1) the parent committed an act or omission described by Texas Family Code § 161.001(b)(1)(A)-(U) (predicate grounds), and (2) termination is in the child's best interests. Tex. Fam. Code Ann. § 161.001(b)(1), (2). The "clear and convincing" standard falls between the preponderance of the evidence standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d at 847; In re L.J.N., 329 S.W.3d at 671. It is defined as 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. The heightened burden of proof compels more stringent appellate review for termination suits compared to decisions regarding conservatorship. In re J.A.J....