Opinion Released September 7, 2017

The Thirteenth Court released only one opinion the week of September 7, 2017.

In the Interest of C.G.B., No. 13-17-00154-CV (Memorandum Opinion by Justice Benavides; Panel Members: Justices Contreras and Rodriguez)

In this accelerated appeal from a termination order, the Thirteenth Court of Appeals discussed a trial court’s ability to terminate a mother’s rights to her daughter based on past conduct, even if the parent no longer engages in such conduct.

Background

C.G.B. (“Child”) was born on July 14, 2005 to L.M.C. (“Mother”) and T.B. (“Father”). Mother and Father divorced in 2009 and were named joint managing conservators with Mother having the right to designate Child’s residence. In May 2010, M.L.B. (“Paternal Grandmother”) filed a petition to be appointed Child’s managing conservator, alleging that Mother was involuntarily committed to a mental health facility in April 2010. Father agreed to the modification. The court then appointed Mother and Paternal Grandmother as temporary joint managing conservators, giving Paternal Grandmother the right to designate Child’s residence. Mother was permitted to have supervised visitation, but was required to pay child support and seek psychological help.

One month later, Paternal Grandmother filed a modify to modify the prior orders based on Mother’s failure to update her contact information and violation of the restrictions regarding Mother’s presence within a certain distance from Child’s school or Paternal Grandmother’s business. The trial court entered an order ending Mother’s visitation and ordered Mother not to text or call Paternal Grandmother or Father. The order was subsequently amended, and Mother began visiting Child again.

In August 2011, the orders were again amended to name Father as joint managing conservator with primary care of Child, while Mother was temporary joint managing conservator with visitation supervised by Father’s wife (“Wife”).

In January 2012, Father filed a motion to modify based on an alleged altercation between Father, Mother, and Wife. Paternal Grandmother intervened again, and the trial court appointed Father, Mother, and Paternal Grandmother as joint managing conservators. Again, Mother was required to pay child support and comply with her mental health doctor’s recommendations, and was allowed supervised visitation with a counselor named Adams for $120/hour.

After Mother struggled to pay for visitation, she moved to modify in 2013. Father and Paternal Grandmother were appointed joint managing conservators while Mother was a possessory conservator. The parties agreed to a new, less expensive supervisor—Frost—for Mother’s visitations and Mother and Father split the cost.

In 2014, Father and Paternal Grandmother moved to enforce the child support order. A judgment for the arrears was granted. Meanwhile, Mother also moved to modify the orders in 2014, but nonsuited her motion in November when she hired new counsel. In 2015, Mother renewed her motion to modify the orders.

Finally, in 2016, Father and Paternal Grandmother filed a petition to terminate Mother’s parental rights, alleging that Mother (1) left Child with a non-parent with no intent to return; (2) endangered the well-being of Child; and (3) constructively abandoned Child. The court held a bench trial on the petition.

Trial

At trial, Mother first called Paternal Grandmother. Paternal Grandmother testified that she did not want Child to have a relationship with Mother; that Mother had been given too many chances in the past; and that Wife was Child’s mom. However, Paternal Grandmother admitted that she had not spoken with Mother since December 2013, and that Father—who Paternal Grandmother characterized as a wonderful parent—had also had drug, alcohol, and crime problems in the past. Father then testified to similar facts. Father admitted his criminal history but insisted that he had changed and was now working in management in Paternal Grandmother’s business. However, Father admitted that he relapsed while Child was living with him in 2012.

Mother’s sister Beth testified next, stating that Mother had changed since 2010 and is a wonderful parent to Child’s half-brother. However, Beth admitted that Mother caused a confrontation between them while on drugs in 2013. Mother’s cousin Claire then testified that the family had been close since Maternal Grandfather was in a bad car accident, and Mother’s cousin Mia stated that Mother was a great mom to Child’s half-brother. Maternal Grandmother also testified that she was close with Mother and helped babysit Child’s half-brother. Maternal Grandmother stated that Mother is a wonderful parent and that the whole family misses Child very much.

Finally, Mother took the stand and stated that she was employed doing data entry, was current with her child support payments, and no longer used drugs. Mother discussed the various problems that hindered her visitations with Child in the past—including the cost of visitation with Adams, Paternal Grandmother’s intimidating presence at the sessions, and Frost’s objectionable behavior—that led Mother not to attend. In particular, Frost appeared to be sleeping at some visitations and spoke disrespectfully to Mother in front of Child. Mother stopped attending visitations due to this behavior, and filed complaints with the state licensing agency.

Apart from the visitations, Mother believed that she could not contact Child due to the court’s prior orders. Mother further explained that she was seeing a psychiatrist and taking anxiety medication, and there was no longer a need for Paternal Grandmother to serve as conservator. On cross-examination, Mother admitted her disturbing behavior in 2010 and explained that she had a breakdown. However, Mother emphasized that she subsequently attended Alcoholics Anonymous meetings and therapy regularly to address her problems. Furthermore, Mother’s only recent criminal conviction was for obstruction of a highway. While she admitted having a recent confrontation with a former friend in which the police were called, Mother explained that the friend was recently released from prison and Mother was attempting to help, but Mother evicted the friend after the confrontation.

Father and Paternal Grandmother next presented evidence, calling Frost to testify. Frost contested Mother’s characterization of her behavior during supervised visits. Frost also discussed her ongoing counseling of Child regarding Child’s feelings of abandonment by Mother. Frost stated that Child did not want Mother back in her life because she has a fear of being left, and warned that allowing Mother to come and go would be detrimental to Child’s well-being. On cross-examination, Frost admitted that she was angered by Mother’s decision to file a complaint against her with the state licensing board, and that she took it personally. Frost also acknowledged that Paternal Grandmother prepared an email to aid Frost’s testimony at the hearing, although this acknowledgment came after Frost denied speaking with Paternal Grandmother, further undermining Frost’s credibility.

The trial court held that Mother endangered Child’s well-being and that termination was in Child’s best interests. Mother appealed, arguing that (1) the evidence was factually and legally insufficient to support termination; (2) her counsel was ineffective; and (3) the relief granted exceeded the relief requested. The Thirteenth Court of Appeals only addressed Mother’s sufficiency argument, as it was dispositive of the appeal.

Held: There was insufficient evidence to support the trial court’s finding that termination was in Child’s best interest. The termination order was reversed and the cause remanded.

In a sufficiency challenge to an order of termination, the court of appeals analyzes whether the record as a whole allows a factfinder to reasonably form a firm belief or conviction about the truth of the allegations.

A trial court may terminate a parent’s parental rights if (1) the petitioner establishes at least one of the statutory grounds listed in Section 161.001, and (2) it is in the child’s best interests. These elements must be shown by clear and convincing evidence. The trial court relied on subsection (b)(1)(E) of 161.001, holding that Mother endangered the Child’s physical or emotional well-being. Endangerment involves not merely a threat, but exposing the child to loss or injury or jeopardizing the child’s well-being. Moreover, termination under this subsection cannot be based on a single act but must be supported by a deliberate course of conduct.

The court of appeals noted that the majority of Mother’s bad acts discussed at trial happened years earlier. However, Mother had not visited Child since 2013, and the Child stated in a letter that she felt betrayed. A factfinder could reasonably infer that this absence endangered Child’s well-being. Thus the evidence was legally and factually sufficient to support endangerment under Section 161.001(b)(1)(E).

The Thirteenth Court next analyzed whether there was clear and convincing evidence that termination was in Child’s best interest. The Court examined the Holley factors: “(1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist these individuals to promote the best interest of the child, (6) the plans for the child by these individuals or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.”

The court began by discussing Child’s desires. Child was eleven years old at the time of the trial and spoke with the trial court regarding Mother, but the conversation was not captured in the appellate record. The Thirteenth Court thus presumed that the interview in chambers supported the trial court’s judgment, and held that the factor supported termination.

Next, the court turned to Child’s emotional and physical needs and corresponding dangers presented by Mother. The testimony showed that Mother had issues in the past that harmed Child’s best interest, but such issues were at least three years prior to the termination. Moreover, Father also had a history of poor behavior. Although Mother did not visit Child for multiple years, her visitations were often disrupted by the circumstances or price of the sessions, and Mother sought to modify the trial court’s order to remedy these issues. Notably, Mother paid $70 per hour to see Child with Frost for more than thirty-seven sessions, despite her financial difficulties. While Child felt abandoned, it was not due toMother’s lack of effort. Moreover, the trial court should consider Mother’s reformed behavior in recent years. This factor thus weighed against termination.

The court next examined the current and future placement of Child. The evidence established that Father and Wife currently provided Child with a good home. However, Mother sought increased visitation as an alternative to joint managing conservatorship, thus giving the trial court an option short of termination to protect Child’s current environment. Furthermore, Mother’s evidence showed that she is now rehabilitated, employed, and able to offer Child a stable environment.

Finally, the Thirteenth Court reviewed mother’s prior acts or omissions and excuses for such acts. These were the primary grounds for termination. Yet, since the birth of Child’s half-sibling, Mother had made radical changes and was now stable and surrounded by family support. Furthermore, Father had a history of criminal conduct as well.

The Thirteenth Court thus held that the evidence was insufficient to show that termination was in Child’s best interest, and reversed the termination order. The court commented that Mother should be entitled to rehabilitate her relationship with Child, characterizing termination as a “death penalty” option that was not supported by the evidence. The case was remanded for a new trial.

Read the Full Opinion Here