                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00052-CV




    IN THE INTEREST OF P.D. AND C.D., CHILDREN




     On Appeal from the 402nd Judicial District Court
                  Wood County, Texas
                Trial Court No. 2013-378




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                         MEMORANDUM OPINION
            After many years’ use of methamphetamine and the resulting chaotic home life, Amy 1

lost her parental rights to her young children, P.D. and C.D., in a bench trial in Wood County. 2

On appeal, Amy challenges the legal and factual sufficiency of the evidence to support selected

elements of the trial court’s order of termination under grounds set out in subsections (D), (E),

(I), (O), and (P) of Section 161.001(1) of the Texas Family Code. 3 Amy does not contest the

trial court’s finding that termination is in the best interests of the children, but attacks only the

trial court’s findings of the above grounds for termination. 4 We affirm the judgment of the trial

court because the evidence is sufficient to support the order of termination under Section

161.001(1)(O). 5

            Parental rights may be terminated if the parent has

            failed to comply with the provisions of a court order that specifically established
            the actions necessary for the parent to obtain the return of the child who has been

1
    We will refer to appellant as “Amy” and the children as “P.D.” and “C.D.” See TEX. R. APP. P. 9.8.
2
    The trial court also terminated the parental rights of each of the fathers of P.D. and C.D., who have not appealed.
3
 The trial court’s order of termination found that there was clear and convincing evidence to support termination of
Amy’s parental rights under those five grounds and that termination was in the best interest of the children. See
TEX. FAM. CODE ANN. § 161.001(1) (D), (E), (I), (O) and (P); § 161.001(2) (West 2014). The trial court also
entered findings of facts and conclusions of law finding the same.
4
 Under grounds (D), (E), and (P), all requiring proof, in some way, that the children were endangered, Amy argues
that there is insufficient proof of endangerment. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), & (P). Ground (I)
involves “contumaciously” refusing to submit to a court order, and Amy asserts that the evidence does not
demonstrate that her limited failure to comply was contumacious, that is, stubborn or willful. See TEX. FAM. CODE
ANN. § 161.001(1)(I). Because we find sufficient evidence to establish ground (O), we do not reach these
arguments. See TEX. FAM. CODE ANN. § 161.001(1)(O).
5
 When there is a finding that the termination is in the best interest of the child, only one statutory ground under
Section 161.001(1) is necessary to support a judgment of termination. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003);
In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied).


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         in the permanent or temporary managing conservatorship of the Department of
         Family and Protective Services for not less than nine months as a result of the
         child’s removal from the parent under Chapter 262 for the abuse or neglect of the
         child . . . .

TEX. FAM. CODE ANN. § 161.001(1)(O).

         On appeal, Amy does not contest that she failed to comply with the provisions of the

court order establishing the actions she needed to take to obtain the return of the children. 6 Amy

challenges only the legal and factual sufficiency of the evidence supporting the finding that the

children had been removed “as a result of abuse or neglect.” 7 Therefore, we consider the

evidence relating to the original removal of the children to determine whether it is sufficient to

support the trial court’s finding that they were removed as a result of abuse or neglect. See, e.g.,

In re E.C.R., 402 S.W.3d 239 (Tex. 2013).

         Texas courts have historically shown great respect for the biological bond between parent

and child, recognizing that the ‘“natural right which exists between parents and their children is

one of constitutional dimensions.’” In re J.W.T., 872 S.W.2d 189, 194–95 (Tex. 1994) (quoting

Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)). They also recognize, however, that “the

rights of natural parents are not absolute; protection of the child is paramount. . . . The rights of

parenthood are accorded only to those fit to accept the accompanying responsibilities.” A.V., 113

S.W.3d at 361. The child’s emotional and physical interests will not be sacrificed merely to

preserve parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

6
 The record reveals that Amy failed to comply with at least three of the required actions, including continuing with
counseling and following all recommendations of the counselor, submitting to all drug tests requested by the
Department or ordered by the court, and maintaining a stable home and income.
7
 Amy’s briefing on this issue is sparse, at best. In the interest of justice and since the State has fully briefed this
point, we will address it.
                                                          3
       Terminating parental rights under the Texas Family Code requires proof by clear and

convincing evidence. TEX. FAM. CODE ANN. § 161.001(1) (West 2014). Clear and convincing

evidence is “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 (West

2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). When the legal sufficiency of evidence is

challenged, we “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.” J.F.C., 96 S.W.3d at 266. In a bench trial, “we assume that the trial court resolved

disputed facts in favor of its finding if a reasonable fact-finder could do so, but disregard all

evidence that a reasonable fact-finder could have disbelieved or found to have been incredible.”

In re K.W., 335 S.W.3d 767, 770 (Tex. App.—Texarkana 2011, no pet.) (citing In re J.O.A., 283

S.W.3d 336, 344 (Tex. 2009)).

       In reviewing for factual sufficiency, we also consider disputed and conflicting evidence.

If we find, after reviewing 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.”

In re J.O.A., 283 S.W.3d at 344.

       We turn to the underlying facts in this record.

       The petition for temporary managing conservatorship was supported by an affidavit

recounting the facts requiring the removal of P.D. and C.D. In addition, Teresa Huffine, the

Child Protective Services caseworker who performed the initial investigation testified at the final

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hearing regarding the events leading up to the removal of the children. The evidence shows

Amy and her children came to the attention of CPS in May 2013, when it received a report of a

possible failure to seek medical treatment concerning C.D. At that time, Amy and her children

were staying with her grandmother. Huffine investigated the report; interviewed Amy, her

grandmother, and her mother; and observed the children. Huffine also observed that the home

was clean and had working utilities and ample food and toys for the children.

       During the initial investigation, Amy admitted using methamphetamine and alcohol and

signed a substance abuse acknowledgement.          A safety plan was instituted with Amy’s

grandmother as the supervised contact. Amy also agreed that she would refrain from any further

use of illegal substances.   During the two months before removal of the children, several

incidents of domestic violence occurred. In one instance, Amy’s mother was accused of criminal

trespass by the Wood County Sheriff’s Department. In another visit to the home, Huffine was

accompanied by a deputy, and Amy and her grandmother were hostile toward each other, with

the grandmother stating she would protect herself with a gun or knife if necessary. Two days

before removal of the children, Amy’s grandmother said she was planning on evicting Amy.

The grandmother claimed there were two more people living at the house that were not supposed

to be there and that there had been another instance of domestic dispute, again mentioning the

use of a gun to protect herself if necessary. Two days before the removal of the children,

Huffine interviewed Amy’s cousin, who was frequently at the home. The cousin advised that

Amy and her grandmother argue constantly and that “it can be very serious at times.” P.D., who

was four years old, and C.D., who was four and one-half months, were in the home during these

                                               5
arguments.    Huffine testified that, although these arguments were non-physical, they still

exposed the children to domestic violence and posed a threat to their emotional well-being and

cognitive development. Huffine was also concerned that the escalating arguments might turn

physical and that they posed a danger to the children. At the final hearing, Amy testified that her

grandmother verbally abused her in front of her children. Amy denied that she had mood swings

or anger issues at that time, but admitted they had arguments.

        On three of the home visits, there were persons present in the home that Huffine

recognized from other, unrelated, CPS cases. All were known to her to use drugs and have

criminal histories. She continued to counsel Amy on making better decisions on whom she

allowed in the home, but to no avail. On her last visit to the house, Huffine learned that another

woman had moved into the home. This woman had moved from another home that had a history

of drug use and domestic violence. Earlier that day, Amy and her grandmother had another

altercation in front of the children, and her grandmother called CPS. On that visit, she also

learned from Amy’s cousin that there was a regular stream of visits by men to see Amy in her

room.

        During the course of the investigation, Amy admitted “recreational” use of alcohol and

methamphetamine that had continued for about five years, although she stated she used it away

from home.     In the two months before removal, Amy admitted that she continued to use

methamphetamine and that she was involved with people with criminal histories who also used

drugs. Although Huffine did not believe Amy was using drugs inside the home, she testified

that, in her experience, the effects of methamphetamine use may last several days and affect

                                                6
parenting by clouding judgment. Amy denied that her drug use affected her parenting skills or

posed any danger to her children. She also did not recognize that the presence of drug users with

criminal histories posed any kind of threat or risk of harm to her children. However, at the final

hearing she acknowledged that she now sees that her drug use may have had an effect on how

she took care of her children. She also agreed that, when she was using methamphetamine, her

judgment was impaired as far as decisions she made regarding her children.

       Bonnie McBride, a licensed clinical social worker and family therapist who counseled

Amy, testified that Amy’s drug use and home environment endangered the children’s emotional

and physical well-being. She agreed that Amy’s drug use, the instability of her home life, and

the domestic violence endangered the physical health and emotional well-being of the children.

Dawn McClain, a licensed professional counselor, testified that Amy’s methamphetamine use

and the domestic violence in the home would place the children in danger and harm them

emotionally.

       After two months, Amy still would not adhere to the safety plan, and she would not

acknowledge that her decisions and conduct might expose the children to danger. On July 9,

2013, another investigator, Laura Cranford, visited with both Amy and her grandmother in the

home. During that visit, Amy admitted she had used methamphetamine within the previous two

days. Cranford also learned that Amy’s grandmother was not complying with the safety plan by

allowing Amy unsupervised contact with the children. The visit ended with Amy and her

grandmother getting into a heated argument. On July 10, 2013, the Department of Protective and

Family Services (the Department) determined that the increasing domestic violence, Amy’s

                                                7
continued drug use, and the failure of Amy and her grandmother to adhere to the safety plan by

allowing people who are known illegal drug users with criminal histories to visit and reside in

the home posed a risk of harm to the children. So, the Department removed the children from

the home pursuant to the emergency provisions of the Texas Family Code. See TEX. FAM. CODE

ANN. § 262.104 (West 2014). The same day the Department filed a petition seeking temporary

managing conservatorship of the children. The trial court entered emergency temporary orders

giving the Department temporary managing conservatorship and setting a full adversary hearing

July 22, 2013.

       On July 22, 2013, a full adversary hearing was held, and Amy appeared in person and

through her attorney. After the hearing, the trial court entered temporary orders in which it

found, inter alia, (1) that there was a danger to the physical health or safety of the children

caused by an act or failure to act of the person entitled to possession, (2) that it was contrary to

the welfare of the children to remain in the home, and (3) that there was a substantial risk of

continuing danger if the children remained in the home. The trial court also entered orders that

established specific actions that Amy needed to take to obtain the return of the children. These

actions included (1) submitting to a psychological or psychosocial evaluation and following all

recommendations of the evaluation; (2) attending counseling sessions until the counselor

determined no further sessions were necessary; (3) attending domestic violence counseling

sessions until the counselor determined no further sessions were necessary; (4) attending and

successfully completing parenting classes; (5) submitting to an alcohol and drug assessment and

following all recommendations; (6) submitting to drug tests as requested by the Department or

                                                 8
ordered by the court; (7) obtaining and maintaining a stable home and income; and

(8) complying with each requirement of the Department’s service plan.           The Department’s

service plan included all of the court-ordered services and also required her to maintain a stable

home and employment for six months, complete an anger management course, and participate in

Narcotics Anonymous and Alcoholics Anonymous meetings at least three times a week and

provide documentation of attendance to the Department.

       As Amy correctly asserts, Section 161.001(1)(O) requires that the removal of the children

under Chapter 262 of the Texas Family Code be for “abuse or neglect.” TEX. FAM. CODE ANN.

§ 161.001(1)(O). The Texas Supreme Court has recently concluded that, under Chapter 262 and

this subsection, abuse or neglect “necessarily includes the risk or threats of the environment in

which the child is placed.” E.C.R., 402 S.W.3d at 248. As the court recognized, the definitions

of abuse and neglect under Chapter 261 “inform” the meaning of abuse and neglect under

Chapter 262. Id. Under Chapter 261, “abuse” includes “the current use by a person of a

controlled substance . . . in a manner or to the extent that the use results in physical, mental or

emotional injury to a child.” TEX. FAM. CODE ANN. § 261.001(1)(I) (West 2014). “Neglect”

includes “placing a child in or failing to remove a child from a situation that a reasonable person

would realize requires judgment or actions beyond the child’s level of maturity, physical

condition, or mental abilities and that results in . . . a substantial risk of immediate harm to the

child.” TEX. FAM. CODE ANN. § 261.001(4)(B)(i) (West 2014). Further, Section 262.104 allows

the emergency removal of a child when “on information furnished by another that has been

corroborated by personal knowledge of facts and all of which taken together would lead a person

                                                 9
of ordinary prudence and caution to believe that there is an immediate danger to the physical

health or safety of the child.” TEX. FAM. CODE ANN. § 262.104(a)(2).

       In this case, there is abundant evidence that Amy’s continued substance abuse and her

allowing other drug users and persons with criminal histories into the home created an

environment that placed the children at risk of emotional and physical harm. Amy admitted as

much at the final hearing. In addition, as set forth in the supporting affidavit and the testimony

of Huffine, the increasing level of altercations between Amy and her grandmother, to the extent

her grandmother expressed on more than one occasion the need to protect herself with firearms,

would lead a person of ordinary prudence to believe there was an immediate danger to the

children. Thus, considering this evidence, a reasonable fact-finder could have formed a firm

belief or conviction that grounds existed to remove the children for abuse or neglect.

       As noted earlier, Amy does not contest that she failed to comply with the provisions of

the trial court’s order “that specifically established the actions necessary for [her] to obtain the

return of [the children].” See TEX. FAM. CODE ANN. § 161.001(1)(O). It is also undisputed that

the children were in the Department’s custody for over nine months.            Further, the record

conclusively establishes that the children were removed for abuse or neglect under Chapter 262

of the Texas Family Code. Therefore, we find that the State established the conduct necessary to

terminate Amy’s parental rights under Section 161.001(1)(O). Since we have found that the

State established at least one of the predicate acts under Section 161.001(1), we need not

consider Amy’s other alleged errors.




                                                10
      We affirm the judgment of the trial court.



                                           Josh R. Morriss III
                                           Chief Justice

Date Submitted:      October 14, 2014
Date Decided:        October 29, 2014




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