R. S. S. v. Tex. Dep't of Family & Protective Servs.

Decision Date15 July 2022
Docket Number03-22-00076-CV
PartiesR. S. S. and N. M., IV, Appellants v. Texas Department of Family and Protective Services, Appellee
CourtCourt of Appeals of Texas

FROM THE 428TH DISTRICT COURT OF HAYS COUNTY NO. 20-0790, THE HONORABLE DWIGHT E. PESCHEL, JUDGE PRESIDING

Before Justices Goodwin, Baker, and Triana.

MEMORANDUM OPINION

GISELA D. TRIANA, JUSTICE.

Following a jury trial, the district court terminated the parental rights of R.S.S. (Mother) and N.M., IV (Father), to their child S.M. (Daughter), born April 7, 2020. Mother and Father each appealed. Mother's appointed counsel has filed a brief concluding that her appeal is frivolous and without merit. See Anders v. California, 386 U.S. 738, 744 (1967). Father challenges the sufficiency of the evidence supporting the predicate statutory ground for terminating his parental rights, failure to complete services. See Tex. Fam. Code § 161.001(b)(1)(O). We will affirm the district court's order.

BACKGROUND

The case began in April 2020 when the Department of Family and Protective Services (the Department) received a report alleging that Mother had tested positive for marijuana and amphetamines upon giving birth to Daughter, who also tested positive for amphetamines. In response to the report, Department investigator Gina Martinez went to the hospital where Daughter was born and spoke with Mother, Father, and Dr. Jon Mazursky, a pediatrician and neonatologist who provided medical care to Daughter following her birth. Dr. Mazursky expressed to Martinez "significant concerns" about Daughter's health and welfare if she were to be released to Mother and Father. Shortly thereafter, the Department filed its Original Petition for Protection of a Child, For Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship, seeking emergency removal of Daughter from her parents and temporary conservatorship of the child. The district court granted the Department temporary conservatorship of Daughter.

To obtain reunification with Daughter, Mother and Father each were ordered by the district court to comply with the terms of a Family Service Plan. Among other requirements, Mother was ordered to complete a drug and alcohol assessment, submit to random drug screenings, attend NA/AA meetings twice monthly, submit to a psychological evaluation, engage in individual therapy, complete protective parenting classes maintain appropriate housing, avoid criminal activity and criminal associations, attend all court hearings, and maintain monthly contact with the Department. Father was similarly required to engage in individual therapy, submit to a psychological evaluation, complete protective parenting classes, attend all court hearings, maintain monthly contact with the Department, maintain employment, maintain appropriate housing, and avoid criminal activity and criminal associations. The plan also required Father to report any interactions with law enforcement to his caseworker within 48 hours and keep the Department up to date on any current or pending criminal case. The service plan was later modified to include requirements that Mother complete a 90-day inpatient drug treatment program and that Father complete an Outreach Screening Assessment Referral (OSAR) for substance abuse and undergo drug and alcohol testing.

Father tested positive for methamphetamines and amphetamines in July 2020 and September 2020 and failed to drug test in August 2020 and November 2020. In December 2020, Father was arrested for and charged with the offense of continuous violence against a family member, specifically Mother, for an incident that allegedly occurred in November 2020. Thereafter, Father failed to complete his services. Mother also failed to complete her services, including those related to her drug usage. After being discharged from inpatient drug treatment in August 2020, she tested positive for methamphetamines amphetamines, and marijuana in November 2020. Although Mother tested negative for drugs in February and March 2021, she tested positive again in April 2021 and failed to attend drug tests in June, July, August, September, and October 2021, which the Department treated as positive tests.

In January 2022, the case proceeded to trial. Witnesses included Mother; Father; doctors and a social worker from the hospital where Mother gave birth to Daughter; a CPS investigative supervisor; officers with the Hays County Sheriff's Office who had responded to and investigated the report of domestic violence committed by Father against Mother; Daughter's foster mother and foster father, who testified that they wanted to adopt Daughter and explained that she was doing well in their care; Mother's mother; Father's father; Steve Russell, Father's former parole officer[1]; and William O'Brien, a conservatorship caseworker who had been assigned to Daughter's case. We discuss the evidence in more detail below as it is relevant to each parent's appeal.

At the conclusion of trial, the jury found that the parental rights of Mother and Father to Daughter should be terminated. Regarding Mother, the jury found that termination of Mother's parental rights was in the best interest of Daughter and that Mother had: (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; (2) 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; and (3) used a controlled substance in a manner that endangered the health or safety of the child and, after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance. See id. § 161.001(b)(1)(D), (E), (P), (2). Regarding Father, the jury found that termination of Father's parental rights was in the best interest of Daughter and that Father had failed to comply with the provisions of a court order that specifically established the actions necessary for Father to obtain the return of the child. See id. § 161.001(b)(1)(O), (2). The district court rendered judgment in accordance with the jury's verdict. These appeals followed.

DISCUSSION

Father's appeal

In his sole issue on appeal, Father asserts that the evidence is legally and factually insufficient to support the predicate statutory ground for termination, failure to comply with the provisions of a court order that specifically established the actions necessary for Father to obtain the return of the child. See Tex. Fam. Code § 161.001(b)(1)(O). However, Father does not dispute that he failed to comply with the requirements of his Family Service Plan. Rather, he contends that his failure to comply was not his fault.

Standard of review

"Section 161.001 of the Texas Family Code requires two findings to support termination of a parent's legal rights: (1) the parent's acts or omissions must satisfy an enumerated statutory ground for termination; and (2) termination must be in the child's best interest." In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021); see N.G., 577 S.W.3d at 232; A.C. v. Texas Dep't of Fam. & Protective Servs., 577 S.W.3d 689, 697 (Tex App.-Austin 2019, pet. denied). "Proceedings to terminate the parent-child relationship implicate rights of constitutional magnitude that qualify for heightened judicial protection." In re A.C., 560 S.W.3d 624, 626 (Tex. 2018). Parental rights have been characterized as "essential," "a basic civil right of man," and "far more precious than property rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). They are "perhaps the oldest of the fundamental liberty interests" protected by the United States Constitution. Troxel v. Granville, 530 U.S. 57, 65 (2000); E.E. v. Texas Dep't of Fam. & Protective Servs., 598 S.W.3d 389, 396 (Tex. App.-Austin 2020, no pet.). "When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it." Santosky v. Kramer, 455 U.S. 745, 759 (1982). "Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent." Holick, 685 S.W.2d at 20. "Because termination of parental rights 'is complete, final, irrevocable and divests for all time' the natural and legal rights between parent and child," a trial court "cannot involuntarily sever that relationship absent evidence sufficient to '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.'" A.C., 560 S.W.3d at 630 (quoting Tex. Fam. Code § 101.007; Holick, 685 S.W.2d at 20). "This heightened proof standard carries the weight and gravity due process requires to protect the fundamental rights at stake." Id.

"A correspondingly searching standard of appellate review is an essential procedural adjunct." Id. "The distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered." Id. "Evidence is legally sufficient if, viewing all the evidence in the light most favorable to the fact-finding and considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or conviction that the finding was true." Id. at 631. "Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding against all the evidence favoring the finding." Id. "In a factual-sufficiency review, the appellate court must consider whether disputed evidence is such that a reasonable factfinder could not have resolved it in favor of the finding." Id. "Evidence...

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