S. B. v. Texas Department of Family and Protective Services

• Decision Date: 15 September 2022
• Docket Number: 03-22-00156-CV
• Citation: 654 S.W.3d 246
• Parties: S. B., J. B., and C. C., Appellants v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee
• Court: Texas Court of Appeals

654 S.W.3d 246

S. B., J. B., and C. C., Appellants

v.TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

NO. 03-22-00156-CV

Court of Appeals of Texas, Austin.

Filed: September 15, 2022

S. B., Pro Se.

Gary E. Prust, Austin, for Appellant B., S.

Ingrid Weltge Moursund, Round Mountain, Civil - Ad Litem for C., M., C., C., B., C.

Amie R. Serrano, Jennifer Cochran-Green, for Appellee.

Natalie Fowler, for Appellant B., J.

Erica Benites Giese, San Antonio, for Intervenor.

C. C., Pro Se.

Angela J. Moore, Cynthia Dyar, for Appellant C., C.

Before Chief Justice Byrne, Justices Triana and Smith

OPINION

Edward Smith, Justice

Three appellants challenge a final order terminating their respective parental rights to three children. C.C., or "Christine," is the mother of all three children—"Allie," aged 11 years at the rendering of final judgment; "Bailey," aged 4 years; and "Bethany," an infant.¹ J.B., or "Adam," is the father of Allie; S.B., or "Brian," is the father of Bailey and Bethany. The Department removed the children when Bethany's meconium tested positive for marijuana at birth and Christine and Brian both tested positive for methamphetamines. Christine's and Brian's cases were tried together to the bench; Adam's case was tried to jury shortly thereafter. On appeal, Christine challenges the sufficiency of the evidence to support the predicate findings under Texas Family Code § 161.001(b)(1)(D) (endangerment), (E) (knowing exposure of child to circumstances resulting in endangerment), (N) (constructive abandonment), (O) (failure to comply with court-ordered plan), and (P) (use of illicit substance); and the finding that termination is in the children's best interest, id. § (b)(2). Adam challenges the sufficiency of the evidence to support predicate findings of (F) (failure to provide support for child) and (P) (use of controlled substance in manner that endangers child); he does not challenge the finding that termination is in Allie's best interest. Brian challenges the sufficiency of the evidence to allow termination of his parental rights to Bailey and Bethany under two subsections of the Indian Child Welfare Act ("ICWA"), 25 U.S.C. § 1912(d) and (f). We will affirm.

STANDARD OF REVIEW

Under state law, the trial court may order termination of the parent-child relationship only "if clear and convincing evidence supports that a parent engaged in one or more of the [statutorily] enumerated grounds for termination and that termination is in the best interest of the child." In re N.G. , 577 S.W.3d 230, 232 (Tex. 2019) (per curiam) (citing Tex. Fam. Code § 161.001(b) ); see also 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." See Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) (citing Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ). They are "perhaps the oldest of the fundamental liberty interests" protected by the United States Constitution. See Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (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, 102 S.Ct. 1388, 71 L.Ed.2d 599 (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 court cannot involuntarily sever that relationship" in absence of "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 and 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. Here, each parent challenges the legal and factual sufficiency to support one or more findings in the trial court's final order. "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 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. Evidence that is factually sufficient to support a trial court's finding necessarily satisfies the legal-sufficiency standard.²

Under ICWA, a trial court may terminate parental rights only if termination is permitted by state law, see S.P. v. Texas Dep't of Fam. & Protective Servs. , No. 03-17-00698-CV, 2018 WL 1220895, at *2 (Tex. App.—Austin Mar. 9, 2018, no pet.) (mem. op.), and only where the factfinder determines "that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child," 25 U.S.C. § 1912(f). The risk of serious emotional or physical damage must be supported by testimony from "qualified expert witnesses," id. , and the evidence as a whole must allow the factfinder to conclude the likelihood of that damage "beyond a reasonable doubt," id. In addition, the statute requires the petitioner to "satisfy the court that active efforts have been made ... to prevent the breakup of the Indian family." Id. § 1912(d). Because of the increased burden of proof in termination proceedings under ICWA, we must analyze a sufficiency challenge to the ultimate ICWA determination in light of that heightened burden. See S.P. , 2018 WL 1220895, at *3. In other words, and as we have explained in the past, we must apply the clear and convincing standard to evaluate a sufficiency challenge to findings rendered pursuant to state law but must ultimately determine—pursuant to ICWA—whether the factfinder could have found beyond all reasonable doubt that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. See id.

DISCUSSION—CHRISTINE

Christine challenges the sufficiency of the evidence to support predicate findings under Texas Family Code subsections 161.001(b)(1)(D) (endangerment), (E) (knowing exposure to circumstances resulting in endangerment), (N) (constructive abandonment), (O) (failure to comply with court-ordered plan), and (P) (use of illicit substance); and the finding that termination is in the children's best interest, id. § (b)(2). Because this analysis will dispose of her appeal, we address only predicate (D) and the best-interest determination. See In re N.G. , 577 S.W.3d at 232–33, 237 ; A.C. , 577 S.W.3d at 698–99 & n.2 ; Tex. R. App. P. 47.1.

Endangerment

We first address Christine's challenge to the finding of endangerment.³ " ‘Endanger’ means ‘to expose to loss or injury; to jeopardize.’ " In re M.C. , 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Texas Dep't of Human Servs. v. Boyd , 727 S.W.2d 531, 533 (Tex. 1987) ). "Although ‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury." Id. "Endangerment does not have to be established as an independent proposition, but can be inferred from parental misconduct alone," and courts may look to conduct "before the child's birth and both before and after the child has been removed by the Department." Pruitt v. Texas Dep't of Fam. & Protective Servs. , No. 03-10-00089-CV, 2010 WL 5463861, at *4 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem. op.). "Conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being." Id. at *14. "Moreover, a parent's mental state may be considered in determining whether a child is endangered if that mental state allows the parent to engage in conduct that jeopardizes the physical or emotional well-being of the child." In re M.E.-M.N. , 342 S.W.3d 254, 262 (Tex. App.—Fort Worth 2011, pet. denied). The relevant inquiry under subsection (D) is whether the child's environment, including the child's living conditions and conduct by parents or others in the home, endangered the child's well-being. V.P. v. Texas Dep't of Fam. & Protective Servs. , No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem. op.). "Inappropriate, abusive, or unlawful conduct by persons who live in the child's home ... is part of the ‘conditions or surroundings’ of the...