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

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00142-CV

S. R., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 22ND DISTRICT COURT OF COMAL COUNTY

NO. C2019-1628A, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING

MEMORANDUM OPINION

S.R. (Mother) appeals from the trial court’s final order terminating her parental

rights to her daughter C.R., who was born in May 2016.1 The trial court found that Mother had

engaged in conduct or knowingly placed C.R. with other people who engaged in conduct that

endangered the child’s well-being, had failed to comply with a court order that established

actions necessary for Mother to regain custody, and had used a controlled substance in a

manner that endangered C.R. See Tex. Fam. Code § 161.001(b)(1)(E), (O), (P). On appeal, S.R.

complains only of the trial court’s finding against her on the (E) grounds—endangerment—and

asks that we either remand for a new trial or render judgment deleting that ground from the

termination order. We affirm the trial court’s order.

1 For the child’s privacy, we refer to her by her initials and to her family members by

their relationships to her. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. Father’s rights

were also terminated, but he is not a party to this appeal.

STANDARD OF REVIEW

To terminate a parent’s rights to her child, the Department must prove by clear

and convincing evidence that the parent engaged in conduct that amounts to at least one statutory

ground for termination pursuant to section 161.001 and that termination is in the child’s best

interest. Id. § 161.001(b); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear and convincing

evidence is “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 § 101.007; In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). We defer to the decisions of the

factfinder, which, “having full opportunity to observe witness testimony first-hand, is the sole

arbiter when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498,

503 (Tex. 2014). In reviewing legal sufficiency, we do not ignore undisputed evidence contrary

to the finding but otherwise assume the factfinder resolved disputed facts in favor of its finding.

A.C., 560 S.W.3d at 630-31. In reviewing factual sufficiency, we weigh the disputed evidence

contrary to the finding against the evidence favoring the finding and ask whether a reasonable

factfinder could not have weighed the evidence in favor of the finding. Id.

Subsection (E) allows for termination of the parent-child relationship if clear and

convincing evidence establishes that the parent “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 § 161.001(b)(1)(E). The Department does not have to

prove that the conduct was directed at the child or that the child suffered an actual injury. In re

E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); see In re M.J.M.L., 31 S.W.3d 347, 350–51 (Tex.

App.—San Antonio 2000, pet. denied) (endangerment must be direct result of parent’s course

of conduct but conduct does not have to be “specifically directed” at child, cause actual injury

2

to child, or “even constitute a concrete threat of injury to the child”). In considering whether

the parent engaged in a voluntary, deliberate, and conscious course of conduct that endangered

the child, see 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.), we may consider the

parent’s actions and her omissions or failures to act, M.J.M.L., 31 S.W.3d at 350–51. Stability

and permanence are paramount in the upbringing of children, In re M.E.-M.N., 342 S.W.3d 254,

263 (Tex. App.—Fort Worth 2011, pet. denied), and a course of conduct that subjects a child to a

life of uncertainty and instability endangers a child’s well-being, A.C. v. Texas Dep’t of Fam. &

Protective Servs., 577 S.W.3d 689, 699 (Tex. App.—Austin 2019, pet. denied). “[A] parent’s

use of narcotics and its effect on his or her ability to parent may qualify as an endangering course

of conduct.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see In re C.V.L., 591 S.W.3d 734,

751 (Tex. App.—Dallas 2019, pet. denied) (evidence of parent’s drug use or that parent allowed

child to be around drug user can qualify as “voluntary, deliberate, and conscious course of

conduct” that endangers child); M.E.-M.N., 342 S.W.3d at 263 (“Drug use and its effect on a

parent’s ability to parent may establish an endangering course of conduct.”). Further, a parent’s

decision to use illegal drugs while a termination suit is pending, and the parent is thus at risk of

losing her child, may support a finding that the parent engaged in a course of conduct that

endangered the child’s physical or emotional well-being. C.V.L., 591 S.W.3d at 751; M.E.-M.N.,

342 S.W.3d at 263.

SUMMARY OF THE EVIDENCE

Department investigator Vanessa Campanella testified that on July 8, 2019, the

Department received a referral of neglectful supervision after Father tested positive for marijuana

3

and methamphetamine following a car accident; C.R. was in the car but uninjured.2 Campanella

started her investigation about two weeks later, when she received Mother’s drug-test results,

which were positive for methamphetamines and amphetamines. C.R. remained in Mother’s care

after the accident, and Mother was to supervise Father when he was with C.R., but when Mother

tested positive, Campanella informed the parents that C.R. would be placed with her paternal

grandmother (Grandmother). Campanella worked with the family for about a month and

testified that both parents “admitted to the drug use and said they wanted help.”

Department caseworker Cindy Doyle was assigned to the family in August 2019.

She testified that Mother completed an in-patient drug rehabilitation program in February 2020

but did not follow through with the required out-patient treatment afterwards. In addition, Mother

missed requested drug tests on March 23, April 2, April 17, and May 22; tested negative on

May 7; tested positive for amphetamines and methamphetamines on June 5; tested negative in all

the Department’s requested drug tests from September through November; missed “a couple”

tests in December; missed three tests between January and March 2021; and tested negative on

March 4. By the final hearing, Mother had just re-engaged in out-patient drug treatment and had

attended several group sessions. Mother never provided Doyle with any proof that she had

attended AA or NA meetings.

Doyle testified that Mother attended several individual counseling sessions in late

2020 and then missed several sessions and said she wanted to switch counselors. Although

Doyle sent Mother’s paperwork to the new provider, Mother did not start with the new therapist

until two or three weeks before the final hearing. Doyle testified that Mother had not maintained

2

The final hearing was held February 25 and March 18, 2021, via video conference

pursuant to the Supreme Court of Texas’s Second Emergency Order Regarding the COVID-19

State of Disaster (Misc. Docket No. 20-9043) and all subsequent Orders.

4

stable housing because although Mother had found “a place to stay” by living with a friend, she

“did not have a place of her own.” Further, Mother had moved out in late October 2020 without

informing Doyle of her change in address. Doyle’s communication with Mother was “[v]ery

sporadic,” and Mother frequently failed to respond to Doyle’s attempts to contact her.

Mother was allowed unlimited video and phone calls with C.R. from March 2020

until October 2020. However, Doyle said Mother’s contact with C.R. “wasn’t frequent and it

would occasionally be several weeks” between calls. In October 2020, the Department set up a

regular weekly videocall visitation schedule, but Mother “just didn’t call” eight or nine times.

She then started to attend about every other visit and had been “fairly regular” for the last “four

weeks or so.” Doyle also testified that in late September 2020, the parties entered into a Rule 11

agreement to give the parents additional time to complete services. The agreement provided that

if the parents “are a couple, they would be treated as one unit,” meaning that they “would both

complete and show their diligence in their efforts.” Doyle had concerns about whether Mother

would “be able to provide a safe and stable home” for C.R. and “remain drug free.” Doyle was

also concerned about the parents’ “extremely unstable and occasionally volatile” relationship and

said that “the back and forth between the two of them, that was a huge concern.” The parents

never attended couple counseling, despite the Department’s efforts to arrange it.

Caseworker Jennifer Hall worked with the family between June and August 2020,

while Doyle was on medical leave. She testified that she tried unsuccessfully to meet with the

parents but that she was able to make phone contact with them and conduct one “family group

conference.” Hall asked each parent three times to take a drug test—Mother took one test, which

was positive for marijuana, and Father did not take any. Hall testified that the Department tried

to set up individual counseling, but that Mother did not contact the counselor for several weeks

5

and then missed the appointment once it was scheduled. Finally, Hall said Mother underwent

a psychological evaluation but “was very short answered and declined to elaborate on her

answers,” resulting in the psychologist being unable to make any recommendations.

Deputy Billy Bliss of the Comal County Sheriff’s Office testified that in early

October 2019, he responded to an assault call involving Mother and Father. Mother told Bliss

that she wanted to press charges against Father “for strangling her, for choking her,” and that

Father “has a history of becoming violent with her.” Mother reported that she had tried to put a

chair between her and Father but that he “smashed the chair and punched the wall,” then pushed

her against the wall and put his hands “around her neck and began to strangle her,” at which

point “she lost the ability to breathe.” Bliss’s report stated that he observed “fresh bruising

around her neck.” Father was not at the scene, and Bliss did not see any children “around at the

time.” Detective Eric Guerretaz was assigned to investigate the incident but was never able to

contact Mother despite making several attempts; the case was eventually set aside as “inactive

due to noncontact.” Deputy Shaun Farley testified that in August 2020, he stopped a vehicle

driven by Father, in which Mother was the passenger. As he approached the car, Farley smelled

“a strong odor of masking spray in the vehicle,” explaining that “[p]eople tend to spray it in their

vehicle to cover up smells such as narcotics or alcohol.” Farley received Father’s permission to

search the car, found a marijuana pipe in Mother’s purse, and issued a citation to Mother for

possession of drug paraphernalia. Finally, Deputy Adriana Deleon testified that in November

2020, she responded to a call from Father reporting that his car had been stolen. Mother was also

present, and Deleon said that throughout the interview, Mother touched Father “affectionately”

and displayed “a real comfortable demeanor with him.” Deleon described Mother as Father’s

“girlfriend” in her report, testifying that she drew that conclusion from the parents’ behavior:

6

“It’s kind of like when people have been together for a while, you can see they either answer for

them, finish their sentences, or when they do something they’ll redirect them.”

Grandmother testified that Mother and Father had not been regular in their

visitations, were not “as engaged with her as they should have been,” and sometimes insulted

each other in front of the child during visits. Grandmother had asked the parents not to call in

the evenings because “when they would call late, it would disrupt [C.R.] too much emotionally,”

and Grandmother “didn’t want her going to bed every night crying.” Grandmother explained

that C.R. would get upset because the parents “weren’t consistent with it. They’ll go weeks

and—sometimes even over a month and there would be no contact with her.” Grandmother had

not told C.R. about the weekly call arrangement because early in the proceeding, when C.R. was

told about visits only to have her parents fail to attend, she “was very disappointed and sad” and

“started getting sick on me, like she would start throwing up.” Grandmother also recalled an

October 2019 visit, when C.R. dressed up in her Halloween costume only to have her parents not

arrive, and testified that it hurts C.R. when her parents are inconsistent in their contact with her.

Grandmother testified that at the time of the hearing, she was no longer in touch

with Father and has had “no contact with the mother as well.” She did not believe Mother or

Father had shown interest in being involved parents or in maintaining their sobriety. Grandmother

hoped to adopt C.R. and was not open to being a primary managing conservator and allowing the

parents to maintain their rights because:

[Parents] have been together since 9th grade. And their relationship all these

years has been off and on, off and on. Even after [C.R.’s] birth, there has been no

stability with them. Being that there are still drug tests that are still positive. And

even with the Department and everyone involved, they have not been able to—to

do everything that they—that was required of them. I think it wouldn’t be fair to

[C.R.] or to myself to—to have that chaos constantly in our lives like that.

7

Mother admitted that methamphetamine had been her drug of choice in the past

but denied that she “continued to test positive throughout” the proceeding. She insisted that she

had missed only one drug test, around Christmas 2020, and said that she would be surprised to

hear that she had missed any others and that she was not aware she had tested positive in June

2020 for methamphetamines. Mother admitted that she had relapsed after her in-patient program

but said she had since stopped again. She had been attending weekly AA and NA meetings and

denied ever using methamphetamines while she was with C.R. Mother admitted that there had

been domestic violence between her and Father but said it had happened a “[l]ong time ago.”

Mother testified that she had been fearful of Father “[a]t the time,” and answered, “I don’t want

to talk about it,” when she was asked what he had done. Mother was directed to answer the

question and responded, “He choked me.” Mother testified that she and Father were no longer in

a relationship and that they had broken up while Doyle had been on leave. She denied that she

and Father were still in a relationship when they had their interactions with Deputy Farley and

Deputy Deleon, saying they sometimes “interact[ed]” and that she was “[b]eing there” for Father

when his car was stolen. Father also testified that he and Mother were no longer a couple, saying

that was the reason they did not engage in couple therapy, and said they maintained a “cordial”

relationship because of their connection through C.R.

DISCUSSION

Mother argues that the Department did not present “real evidence of a causal

nexus between mother’s alleged drug use and endangerment of” C.R. and argues that we should

not simply “conflate” drug use with child endangerment, but this is not a case in which there was

8

evidence of mild or irregular drug use and nothing else.3 There was evidence that Mother tested

positive for methamphetamine use before and after C.R. was removed, engaged in services only

partially (for instance, failing to follow up after her in-patient treatment program and relapsing

into drug use), was cited for having drug paraphernalia, continued her “unstable and occasionally

volatile” relationship with Father despite at least one instance of domestic violence during the

case in which Father “choked” her; and, importantly, did not maintain regular, predictable contact

with C.R., causing the child such distress that she became physically ill.

Mother and Father both testified that they had broken up, but the Department’s

witnesses disputed those assertions, and it was for the trial court to decide which testimony

(and reasonable inferences therefrom) was more credible. See A.C., 560 S.W.3d at 630-31. And

although Mother seemed to have made strides in sobriety and attempting to re-engage in services

shortly before the final hearing, “evidence of improved conduct, especially of short-duration,

does not conclusively negate the probative value of a long history of drug use and irresponsible

choices.” J.O.A., 283 S.W.3d at 346; see In re R.W., 129 S.W.3d 732, 741 (Tex. App.—

3

Mother cites for that proposition M.D. v. Texas Department of Family & Protective

Services, No. 03-20-00531-CV, 2021 WL 1704258, at *8 (Tex. App.—Austin Apr. 30, 2021, no

pet.) (mem. op.). M.D., however, presented vastly different facts than this case, see id. at *6-7,

and in that case, we observed that “because it exposes the child to the possibility that the parent

may be impaired or imprisoned, a parent’s illegal drug use and drug-related criminal activity

may support termination under subsection (E).” Id. at *8. We then cited our sister court’s

opinion, see id., which stated, “Somewhere along the way, [that court of appeals] conflated drug

use with child endangerment such that mere drug use became conclusive evidence that a child

was endangered,” In re L.C.L., 599 S.W.3d 79, 85 (Tex. App.—Houston [14th Dist.] 2020, pet.

ref’d) (en banc). However, we cited L.C.L. under a “but see” signal, meaning our sister court’s

opinion “clearly supports a proposition contrary to the main proposition.” See The Bluebook: A

Uniform System of Citation R. 1.2 (c) (Columbia L. Rev. Ass’n et al., eds., 21st ed. 2020). And

contrary to Mother’s contention, we did not suggest in M.D. that endangerment must be

independently established and may not be inferred from parental misconduct alone. M.D., 2021

WL 1704258, at *6 n.4 (“We recognize that ‘endangerment’ does not need to be established as

an independent proposition but may, instead, be inferred from the parental misconduct alone.”).

9

Fort Worth 2004, pet. denied) (“Despite B.B.’s contention that he had stopped drinking, using

drugs, and being depressed prior to his involvement with this case, the jury was not required to

ignore a long history of dependency and destructive behavior merely because it allegedly abated

before trial.”). The trial court could have determined that given the evidence of domestic

violence between Mother and Father, their ongoing relationship, Mother’s abuse of a serious

drug before and during the case, and her failure to maintain contact with C.R., Mother had

engaged in a course of conduct that endangered C.R. See, e.g., R.R. v. Texas Dep’t of Fam. &

Protective Servs., No. 03-16-00528-CV, 2016 WL 6575235, at *3-4 (Tex. App.—Austin Nov. 3,

2016, no pet.) (mem. op.) (court could have found course of endangering conduct when mother

admitted to having used methamphetamines weekly for past eight years; police officers had

responded to three reports of domestic violence involving her and husband, who was also a

methamphetamine user; and mother had no negative drug tests during case and did not complete

domestic-violence classes or drug-addiction services); J.C.-O. v. Texas Dep’t of Fam. &

Protective Servs., No. 03-16-00271-CV, 2016 WL 6068263, at *7 (Tex. App.—Austin Oct. 14,

2016, pet. denied) (mem. op.) (jury could have found course of endangering conduct from

evidence of domestic violence between parents, father’s enabling mother’s drug abuse during

case, and “volatile nature of their ongoing relationship”); R.Z. v. Texas Dep’t of Fam. &

Protective Servs., No. 03-14-00412-CV, 2014 WL 5653272, at *6 (Tex. App.—Austin Oct. 29,

2014, no pet.) (mem. op.) (jury could have credited evidence of illegal drug use, domestic

violence, and criminal activity before and after child’s removal to find conscious course of

conduct that endangered child). We overrule Mother’s sole issue on appeal.

10

CONCLUSION

Having overruled Mother’s issue, we affirm the trial court’s order of termination.

__________________________________________

Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Triana and Kelly

Affirmed

Filed: August 6, 2021

11