                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-087-CV


IN THE INTEREST OF E.G., A CHILD




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          FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In one issue, Appellant Mother appeals the termination of her parental

rights by challenging the sufficiency of the evidence to support the trial court’s

best interest finding. We affirm.




      1
          … See Tex. R. App. P. 47.4.
                       II. Factual and Procedural History

      Mother was fourteen years old when she gave birth to E.G. in September

2006. A year later, Child Protective Services (“CPS”) removed E.G. from her

care and the Department of Family and Protective Services (“DFPS”) filed a

petition to terminate her parental rights.

      A jury rendered a verdict of termination in the trial held in February 2009

before an associate judge, and Mother sought a de novo hearing in the county

court at law. See Tex. Fam. Code Ann. § 201.015 (Vernon Supp. 2009). The

county court at law took judicial notice of the entire jury trial record and, after

hearing additional evidence, issued the order terminating Mother’s parental

rights to E.G. Like the jury in the original trial, the county court found that

Mother had constructively abandoned E.G., that Mother had failed to comply

with the provisions of a court order that specifically established the actions

necessary for her to obtain E.G.’s return to her, and that termination of

Mother’s parental rights to E.G. would be in E.G.’s best interest.         See id.

§ 161.001(1)(N), (O), (2) (Vernon Supp. 2009). This appeal followed.

                       III. Legal and Factual Sufficiency

      In her sole issue, Mother argues that the evidence was insufficient to

show that it is in E.G.’s best interest to terminate Mother’s parental rights.




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A. Standards of Review

      A   parent’s   rights   to   “the   companionship,    care,   custody,   and

management” of his or her children are constitutional interests “far more

precious than any property right.”        Santosky v. Kramer, 455 U.S. 745,

758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547

(Tex. 2003). “While parental rights are of constitutional magnitude, they are

not absolute. Just as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional

and physical interests of the child not be sacrificed merely to preserve that

right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a termination case, the

State seeks not just to limit parental rights but to erase them permanently—to

divest the parent and child of all legal rights, privileges, duties, and powers

normally existing between them, except for the child’s right to inherit. Tex.

Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith, 685 S.W.2d 18,

20 (Tex. 1985). We strictly scrutinize termination proceedings and strictly

construe involuntary termination statutes in favor of the parent. Holick, 685

S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth

2008, no pet.).

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

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listed under subdivision (1) of the statute and must also prove that termination

is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L.,

163 S.W.3d 79, 84 (Tex. 2005). Termination decisions must be supported by

clear and convincing evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a).

Evidence is clear and convincing if it “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.”   Id. § 101.007 (Vernon 2002).        Due process demands this

heightened standard because termination results in permanent, irrevocable

changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex.

2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting

standards for termination and modification).

      With regard to the best interest finding challenged here, when we review

the evidence for legal sufficiency, we must determine whether the evidence is

such that a factfinder could reasonably form a firm belief or conviction that the

best interest ground was proven. See In re J.P.B., 180 S.W.3d 570, 573 (Tex.

2005). We must review all the evidence in the light most favorable to the

finding and judgment. Id. This means that we must assume that the factfinder

resolved any disputed facts in favor of its finding if a reasonable factfinder

could have done so. Id. We must also disregard all evidence that a reasonable

factfinder could have disbelieved. Id. We must consider, however, undisputed

                                       4
evidence even if it is contrary to the finding. Id. That is, we must consider

evidence favorable to termination if a reasonable factfinder could, and disregard

contrary evidence unless a reasonable factfinder could not. Id.

      We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the factfinder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the factfinder’s determinations as long as

they are not unreasonable. Id. at 573.

      In reviewing the evidence for factual sufficiency, we must give due

deference to the factfinder’s findings and not supplant the verdict with our

own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We must determine

whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that termination of the parent-child relationship would be in

the best interest of the child. C.H., 89 S.W.3d at 28. If, in light of the entire

record, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction in the truth of its finding,

then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.




                                        5
B. Best Interest of the Child

      1. Law

      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). However,

prompt and permanent placement of the child in a safe environment is also

presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)

(Vernon 2002). Among others, the following factors should be considered in

evaluating the parent’s willingness and ability to provide the child with a safe

environment: the child’s age and physical and mental vulnerabilities; whether

there is a history of substance abuse by the child’s family or others w0ho have

access to the child’s home; the willingness and ability of the child’s family to

seek out, accept, and complete counseling services and to cooperate with and

facilitate an appropriate agency’s close supervision; the willingness and ability

of the child’s family to effect positive environmental and personal changes

within a reasonable period of time; whether the child’s family demonstrates

adequate parenting skills; and whether an adequate social support system

consisting of an extended family and friends is available to the child.

Id.§ 263.307(b); R.R., 209 S.W.3d at 116.

      Other, nonexclusive factors that the trier of fact in a termination case

may use in determining the best interest of the child include the desires of the

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child; the emotional and physical needs of the child now and in the future; the

emotional and physical danger to the child now and in the future; the parental

abilities of the individuals seeking custody; the programs available to assist

these individuals to promote the best interest of the child; the plans for the

child by these individuals or by the agency seeking custody; the stability of the

home or proposed placement; the acts or omissions of the parent which may

indicate that the existing parent-child relationship is not a proper one; and any

excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d

367, 371–72 (Tex. 1976).

      These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

      2. Analysis

      Mother asserts that she is a good mother and was doing a good job of

taking care of E.G. when E.G. was removed from her, that E.G. was never

abused or neglected, that she provided E.G. with a safe environment, and that

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she completed her court-ordered services and maintained significant and

meaningful contact with E.G. after the removal.

      However, Mother’s own testimony during the jury trial and at the trial de

novo contradicts some of her assertions: she testified at the jury trial that

before E.G.’s removal, she would smoke marijuana and then interact with E.G.

while still feeling the effects of the marijuana, although “not very many” times.

She also agreed that she visited E.G. only forty-eight times out of a possible

142 visits after E.G.’s removal, and that she had been withdrawn from school

for excessive absences.2 Both the visits and school attendance were service

plan requirements.3 At the trial de novo, Mother acknowledged that she did not

do everything that she needed to do to have E.G. returned to her.

      And although Mother was supposed to stay away from drugs as part of

her service plan, her caseworker testified that Mother admitted that she used



      2
        … E.G. was removed from Mother when Mother left her with someone
else so that Mother could attend truancy court. Mother testified that she
missed some of the visits because of her work schedule. The CPS caseworker
testified that Mother’s visitation schedule was modified four or five times to
accommodate Mother’s work schedule.
      3
        … Mother completed the eight parenting classes initially required in her
service plan, and she completed a drug and alcohol assessment.                She
completed half of her required counseling. Mother did not complete the
additional eight parenting classes that CPS set up at the recommendation of the
parenting class provider and that the court ordered, nor did she complete the
activities the court ordered that she could do in lieu of the additional classes.

                                       8
marijuana and that Mother tested positive for marijuana on the drug test she

took a few weeks before the jury trial.4 Mother admitted to this at the trial de

novo, stating that it had been over a month since the last time she had smoked

“pot” and that it was before the jury trial. Furthermore, with regard to E.G.’s

condition at removal, the CPS caseworker testified that E.G. had been wearing

a dirty diaper put on backwards, had a diaper rash, was dirty, and had a bad

odor, and that “her clothes were so small that . . . her toes were curled up in

her shoes.”

      Mother argues that she and E.G. are bonded to one another and that the

jury just determined that the foster parents were better for E.G. than “an

inconsistently employed 15-year old mother with unstable housing who is a

good parent,” but the record does not entirely support this argument, and the

county court had other factors to consider besides whether E.G. and Mother

were bonded that weighed in favor of termination. See Tex. Fam. Code Ann.

§ 263.307(b); R.R., 209 S.W.3d at 116; see also Holley, 544 S.W.2d at

371–72. Mother’s testimony about her bond with E.G. was undisputed.




      4
        … The CPS caseworker testified that in discussing one of Mother’s
sisters, who also had an open CPS case, Mother stated that “at least [Mother]
only did marijuana,” and not the particular drug her sister used.

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      Mother was fifteen years old when E.G. was removed, but she was

almost seventeen years old at the jury trial, and she was seventeen at the trial

de novo. It is undisputed that she was inconsistently employed: she testified

that she quit her job of five months at Sonic around a month before trial and

that she worked for Church’s Chicken for two months before that.              She

testified at the jury trial that she did not “do [anything] during the days” other

than help her grandmother with cooking and cleaning.5          Mother was still

unemployed at the time of the trial de novo, although she testified that she had

a job interview lined up for the following week at a fast food restaurant.

      It is also undisputed that Mother had unstable housing: she testified at

the jury triazl that she had lived with her legally disabled grandmother for

almost five months (in three locations), with one of her sisters for the three

months before that, and with a friend of the family at the time of E.G.’s

removal. At the trial de novo a little over a month later, Mother testified that




      5
       … At the jury trial, Mother testified that, even though she had not taken
the GED exam, she planned to start school at Vernon College to study to
become a certified LVN nurse’s aide and that she would be working there,
making $10.50 an hour. She admitted that she did not know how much she
would have to pay for day care, that she was not yet enrolled in the nurse’s
aide program, and that she did not know what an LVN was. Mother had not
enrolled in the program by the time of the trial de novo over a month later.

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she had moved again and was living with a family friend whose last name she

did not know “right offhand,” but who she had known for around three years.

      The county court could have determined, based on the jury trial record

and Mother’s subsequent testimony at the trial de novo, that termination of

Mother’s parental rights was in E.G.’s best interest because, in addition to the

testimony discussed above, Mother testified that her plans for E.G. were “[t]o

take care of her like I [was] before y’all took her.” 6 She testified that she did

not take E.G. for her immunizations because,

      [w]hen [my sister] took her son to get his immunizations, the
      way—the way they done him and the way they made him feel, he
      was in—I mean, he couldn’t do nothing. He couldn’t walk because
      he was so sore, his body. I wasn’t going to make my baby have
      them shots.7

Mother also testified that her mother had problems and was not very

supportive,8 that she had no contact with any father figure, and that one of her

sisters also had an open CPS case. E.G. had been in foster care for fifteen

months by the time of the jury trial.


      6
       … Mother stated that she did not think that the foster parents “can do
anything different than I can do. They’re getting paid for my baby.”
      7
       … Mother testified that this concern had nothing to do with recent news
about thymerosol, a preservative in some vaccines, and its potential connection
to autism.
      8
      … On the same day that E.G. was removed from Mother, Mother was
removed from her own mother and placed in a teen shelter.

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      Additionally, Mother’s CPS caseworker testified that appointing Mother

E.G.’s sole managing conservator would significantly impair E.G.’s physical or

emotional development based at least in part on Mother’s family’s extensive

CPS history and drug use; 9 that E.G.’s foster parents loved E.G., had a stable

home and employment, and were interested in adopting her; and that E.G.’s

adoption by her foster parents would be in E.G.’s best interest.

      E.G.’s court-appointed special advocate testified that E.G. was flourishing

with her foster parents and that E.G. called them “Mommy and Daddy,”

although she also called Mother “Mom” at visitations. She testified that she

was unsuccessful in contacting Mother at any of the five addresses she had for

her but was successful in meeting with her at truancy court.                 She

recommended termination of Mother’s parental rights, and she testified that the

foster parents were in a better position to take care of E.G.’s emotional and

physical needs and had better parenting abilities; that if E.G. were adopted by

the foster parents, E.G. would receive tuition at a four-year college and health

care until age eighteen under the programs available to assist adopting foster

parents; and that it was not in E.G.’s best interest to be returned to Mother.




      9
       … On cross-examination, the CPS caseworker admitted that she could
not think of any emotional harm that could come to E.G. from Mother’s failure
to attend school or from her constant housing changes.

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      Viewing the evidence in the light most favorable to the finding and

judgment, we conclude that the county court could have reasonably formed a

firm belief or conviction that the best interest ground was proven such that the

evidence is legally sufficient to support that finding. See J.P.B., 180 S.W.3d

at 573. Furthermore, in light of the entire record, we conclude that the county

court could have reasonably formed that same firm conviction or belief, such

that the evidence is factually sufficient to support the best interest finding. See

C.H., 89 S.W.3d at 28. Therefore, we overrule Mother’s sole issue.

                                 IV. Conclusion

      Having overruled Mother’s sole issue, we affirm the county court’s

judgment.




                                             PER CURIAM

PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.

DELIVERED: October 15, 2009




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