DISSENT and Opinion Filed December 13, 2019 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-19-00506-CV IN THE INTEREST OF C.V.L., A CHILD On Appeal from the 304th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-17-01086-W


### DISSENTING OPINION Before Justices Whitehill, Partida-Kipness, and Pedersen, III Dissenting Opinion by Justice Whitehill This appeal arises from a trial court judgment terminating a pa rent–child relationship. The trial judge found that Father committed conduct described in Te xas Family Code § 161.001(b)(1)(D) and (E) and that terminating Father’s parent al rights was in C.V.L.’s best interest. This case presents important questions regarding an appellate c ourt’s ability to second guess a factfinder’s pivotal credibility determinations in a te rmination case given the supreme court’s admonition that despite the heightened standard of revi ew in termination cases, courts of appeals must nevertheless still provide due deference to the fa ctfinder’s credibility determinations. Here, the trial court viewed Fat her’s testimony and denials abo ut his drug use firsthand. And the trial judge also observed Father’s friends and the guardian ad litem testify. The trial judge’s–2– implicit rejection of Father’s ins istence that he could and wou ld stay drug-free meant that several Holley factors weighed in favor of termination.
I. B ACKGROUND The Department sued to terminate Father’s parental rights based in part on his documented positive drug tests. At trial, Father testified conflictingly by admitting he was a drug addict and then denying it. He also denied continued drug use after he wa s sued to terminate his father– daughter relationship, but he twice tested positive for methamp hetamine use while his case was pending. The last time was a month before his trial began—when everything was on the line. Father offered specious and refuted reasons for these failed dr ug tests. There is also evidence that Father suffers from depressi on, is bipolar, and h as anger issue s. On the other hand, there is evide nce that Father is a likeable man who cares for his daughter. People root for him. C.V.L.’s guardian ad litem rec ommended that C.V.L. be returned to Father. Even the trial judge s aid she wanted Father to succ eed. Nevertheless, the trial judge found that (i) Father placed or k nowingly allowed C.V.L. to be placed in dangerous surroundings, (ii) he committed or place d C.V.L. with persons who committed endangering conduct, and (iii) terminating Father’s r ights was in C.V.L.’s best interest. The majority opinion holds that the evidence supporting these f indings was factually insufficient. I disagree with that conclusion because the majority opinion ab andons supreme court precedent and our own precedent regarding the standard of review and impr operly second guesses the factfinder’s findings.
II. S TANDARD OF R EVIEW The majority opinion posits that this dissent takes issue with the majority opinion’s “consideration and weighing of all of the evidence when conduct ing this sufficiency review.” That statement is only partially co rrect. This dissent recognizes a nd adheres to the heightened standard–3– of review stated in In re A.B. , 437 S.W.3d 498 (Tex. 2014). But nothing in that opinion give s courts of appeals license to s econd guess the factfinder’s witn ess credibility decisions. Rather, the supreme court held otherwise: But, as we also recognized in [ In re C.H., 89 S.W.3d 17 (Tex. 2002)], while parental rights are of a constitutional ma gnitude, they are not absolute

. Id. Consequently, despite the heightened standard of review as articulated in C.H., the court of appeals must nevertheless still provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand , is the sole arbiter when assessing the credibility and demeanor of witnesses. In re J.L., 163 S.W.3d 79, 86–87 (Tex. 2005). Id . at 503.
III. A NALYSIS A. Drug Use Evidence The trial judge could reasonably conclude that Father is a meth amphetamine addict who repeatedly lied about his methamphetamine use and who used meth amphetamine at least twice after C.V.L. was removed and this termination case was filed. Here’s the chronology:

• 2007 . Father testified that 2007 is “when my first kid got taken f rom me.” He was treated for bipolar disorder. He testified that he does n’t agree with that diagnosis.

• December 2008 . Psychiatric records indicate that Father reported being bipolar “my whole life.” Father t estified that he used to take lithium, but he didn’t like the side effects and quit.

• August 2016 . C.V.L. was born. Her meconium tested positive for cocaine, and a safety plan was devised that left C.V.L. with Father and required Mother to be supervised a nd not to live with C.V.L.

• August 2017 . The Department received a referral about C.V.L. There were concerns about “the living envir onment, mold, dirty dishes, fle as, that sort of thing, as well as a concern regarding mom using drugs.” At that time, Father admitted to the Department that Mother sometimes slept o ver. At trial, he further admitted that Mother lived with him for the f irst four months after C.V.L. was born because Father “had no paper saying that [Mother] couldn’t stay there.”

• September 2017 . Father smoked methamphetamine with Mother, despite his knowing that the Department was investigating C.V.L.’s care . He–4– admitted this on the stand at trial. He also admitted that he lied to his psychologist and claimed that Mot her drugged him without his kn owledge.

• October 2017 . Father tested positive for methamphetamine. There was evidence that the test results i ndicated recreational use rathe r than a onetime use, so the trial judge could reasonably infer that Father actually used methamphetamine more than the s ingle September 2017 use Father admitted to. A CPS supervisor went to Father’s house after Fat her failed the drug test, and although Fath er wouldn’t allow anyone inside the house the supervisor could smell a foul odor when Father opened the d oor. She described the odor as “a mixture of animal, urine, [and] smoke” and agreed that it smelled lik e “a dirty house.”

• Also October 2017 . C.V.L. was removed and this termination case was filed. So Father was on notice that he was under scrutiny and needed to stay drug-free.

• January–May 2018 . Father passed three drug tests.

• Early summer 2018 . Father completed his c ourt-ordered services.

• July 2018 . Father passed another drug test, and C.V.L. was returned to him.

• August 2018 . Father passed anot her drug test.

• September 2018 . Father used methamphetamine again. This was proved by both a drug test and a Metrocare Assessment for Chemical Dep endency. Father tried to explain this positive test away by saying (i) h e had sex with Mother (a known drug addict) a c ouple of times during the previ ous summer and (ii) less than a week before the drug test he did some work on a van that contained a can full of used crack pipes and meth pipes. Exper t testimony discredited these explanations. T he Department removed C.V.L. again.

• October 2018 . Father tested positive for both methamphetamine and cannabinoids. So the trial judge could reasonably conclude tha t Father used not only methamphetamine but also THC or marijuana.

• November 2018–February 2019 . Father passed monthly drug tests.

• January 2019 . A Metrocare initial assessment document dated January 14, 2019, says that Father smoked methamphetamine “1–3 times in the past month.” So, this evidences at least a third use of illegal dru gs, Father’s second after this termination case started. Moreover, the asse ssment shows Father’s diagnosis as “Amphetamine-type substance use disorder, Moderate.”

• March 2019 . Father failed another drug test by testing positive for methamphetamine. Given that Fath er had passed his previous fou r drug tests, this test corroborates the January 2019 Metrocare docume nt suggesting at least one additional use in December 2018 or Janu ary 2019.–5– An expert agreed that, based on the March 2019 test result, “we can say with confidence that there was more than one use from the origi nal October 2017 test.” Thus, the trial judge could reasonably have believed all of thi s evidence and concluded that Father recreationally used methamphetamine before September 201 7 and lied about it. Then, after this case started, F ather was drug-free for several months, but after he got C.V.L. back he used methamphetamine again in September 2018 and lied about it. A drug test showed he also used THC or marijuana somewhere in this time fra me. A Metrocare document indicated that he used methamphetamine one to three times in th e December 2018–January 2019 time frame—shortly before trial began. And not only did Metrocare diagno se Father as having a moderate amphetamine-type substance abuse disorder, but Father admitted on the stand that he was “a user not an abuser,” and, “I am an addict, I guess.” Finally, there was evidence that Father refused to accept his d iagnosis for bipolar disorder and maintained and concealed an unsanitary residence, specifica lly the August 2017 referral that reported mold and fleas and the CPS supervisor’s testimony abou t a foul odor in October 2017. B. Endangerment under § 161.001(b)(1)(E) There is no need to repeat all the legal principles involved in a Family Code § 161.001(b)(1)(E) analysis. Suffice to say, the majority opin ion correctly holds that the evidence is legally sufficient to support the finding that Father engage d in conduct that endangered C.V.L.’s physical or emotional well-being. See T EX
. F AM

. C ODE § 161.001(b)(1)(E). Evidence that a parent used drugs during an ongoing termination suit, when he knows he is at risk of losing his child, is legally sufficient to support an (E) endangerment finding. See, e.g. , In re A.M. , 495 S.W.3d 573, 580 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).–6– But, inconsistently, the majority concludes that the (E) eviden ce here is factually insufficient because there is no evidence that Father’s past use of methamphetamine endangered C.V.L. That cannot be logically c orrect; if evidence of drug u se during a termination case is legally sufficient evidence of endangerment, then it must be some evide nce that such drug use endangers the child. The question on factual sufficiency review is whether the disputed evidence is so powerful that the factfinder couldn’t reas onably credit the evidence fav oring termination. See In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). Her e, there is credible eviden ce that Father used methamphetamine at least twice after C.V.L. was removed, specif ically (i) the September 2018 drug test and Metrocare Assessme nt for Chemical Dependency and (ii) the January 2019 Metrocare record plus t he March 2019 drug test. More importantly, there is scientific evidence (in the form of a drug test) that Father used methamphetamine after C.V.L. had been returned to him and befor e the trial when he knew his parental rights were in jeopardy. There was also scientific ev idence from which the factfinder could reasonably conclude that Father’s explanations were not c redible. From these facts, the factfinder could reasonably have determined that Father was a r ecidivist drug a ddict—even when C.V.L.’s best interest was on the line—and that he would contin ue to be so if C.V.L. remained in his custody post-trial. So the evidence of endangerment is fac tually sufficient. See In re A.M. , 495 S.W.3d at 580 (employing same analysis). The majority also asserts that (E) cannot be satisfied without a “conscious course of conduct.” See In re K.S. , No. 05-15-01294-CV, 2016 WL 1613126, at *14 (Tex. App.—Dallas Apr. 21, 2016, pet. denied) (mem. op.) (“[A] voluntary, deliber ate, and conscious ‘course of conduct’ by the parent is required.”). But there is evidence o f a conscious course of conduct here. Parental conduct both before and after a child has been removed can be considered, id ., and here–7– there was evidence that Father used methamphetamine recreationa lly before C.V.L. was removed and used it at least twice after her removal. There was no con trary evidence so powerful that the trial court couldn’t properly credit this recidivist drug use e vidence. See Walker v. Tex. Dep’t of Family & Protective Servs. , 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“Because it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use ma y support termination under sect ion 161.001(1)(E).”). Indeed, there was credible evide nce from which the trial court could reasonably conclude that Father’s methamphetamine use was more than an isolated act and instead was voluntary, deliberate, and a conscious course of conduct. Thus, the evide nce was factually sufficient to support the trial court’s (E) endangerment finding. See In re J.W. , 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied).
C. Best Interest The majority opinion correctly c oncludes that the evidence is l egally sufficient to support the finding that terminating Father’s rights is in C.V.L.’s bes t interest. For purposes of that analysis, the majority opinion concludes, again correctly, that the trial court was entitled to disbelieve Father’s testimony that he would not relapse in his drug use. The trial court was even permitted to disbelieve that testimony for factual sufficiency purposes too. But in its factual sufficiency review, the majority opinion err s by concluding that the trial court could not disbelieve Father’s testimony because “the disp uted evidence is such that a reasonable fact-finder could not h ave reconciled that disputed evidence in favor of its finding.” I disagree. The Holley best interest factors are: (i) the child’s desires, (ii) the c hild’s needs now and in the future, (iii) danger to the child now and in the future, (i v) the parent’s parent al abilities, (v) the programs available to assist the parent promote the child’s bes t interest, (vi) the plans for the child–8– by the parent or the agency seeking custody, (vii) the stabilit y of the home or proposed placement, (viii) the parent’s conduct indicating that the relationship is not a proper one, (ix) any excuse for the parent’s conduct, and (x) any other relevant consideration. Holley v. Adams , 544 S.W.2d 367, 372 (Tex. 1976). Some evidence supported Holley factors weighing in Father’s favor. Although very young, the child seemed bonded to him. Father showed willingness to t ake advantage of programs to assist him. Father had some pla ns for the child’s care, and th e Department did not put on evidence of its plans for the child. But against these factors the trial court was entitled to give weight to the evidence of Father’s continued drug use, his lies about the failed drug tes ts, and above all the possibility or probability of relapse. Even afte r the Department took C.V.L. away and sued Father to terminate his rights forever, Father was unable to stay drug-free and was unwilling to admit his mistakes. His uses during this case’s pendency were knowing and voluntary acts indicating that his parental relationship with C.V.L . was not a proper one. Moreover, if Father was likely to relapse in the future, severa l other Holley factors supported termination. A parent under the influence of illegal drugs cannot effectively see to the child’s emotional and physical n eeds. The parent’s possible in capacitation and incarceration pose distinct emotional and physical d angers to the child. A relaps e would render Father’s home unstable. As for excuses for Father’s behavior, there are none that bode well for C.V.L.’s best interest: He has been diagnosed with bipolar disorder that is not currently being treated. He was in a lengthy relationship with C .V.L.’s drug-addicted Mother. Although he orally agreed to a safety plan that prohibited him from living with Mother after C .V.L was born, he continued living with Mother for four months becau se he did not have a piece of paper telling him that he could not–9– live with her. And he refused to admit his drug use during the pendency of this case despite contrary drug tests. The supposedly overwhelming evidence that contradicts the trial court’s best-interest finding consists of testimony from Father, Parker, Al-Bohi, and the guardian ad litem. The value of their testimony depended heav ily on their credibility. But we must defer to the trial court’s credibility determinations, In re N.T. , 474 S.W.3d 465, 475 (Tex. App.—Dallas 2015, no pet.), and the trial court had ample r eason not to credit these witnes ses’ testimony. Father repeatedly lied about his drug use. At one point, Fathe r admitted to being a drug addict. Although he also insisted that he had used methampheta mine only once in his life, the evidence supported inferences tha t he used it recreationally be fore C.V.L. was removed and at least twice afterwar ds, not to mention his marijuana use. The trial judge saw Father testify about h is drug use; we didn’ t. The record is silent about the critical nonverbal factors tha t are essential to credibilit y determinations. Was Father visibly agitated on the stand? Distraught? Disheveled? We don’t know , but the trial judge did. It was both the trial judge’s prerogative and its duty to assess Fathe r’s credibility and demeanor on the stand, and it ultimately decided Father’s testimony that he wou ld stay drug-free, even if sincere, was not believable. The majority opinion appears to characterize Parker and Al-Bohi as “objective, uninterested witnesses,” and so it credits their testimony that Father wasn’t using drugs, was capable of caring for C.V.L., was no longer in contact with Mot her, and had a strong bond with C.V.L. But they were Father’s long-time friends. Moreover, th eir testimony that Father was not using drugs was contradicted by evidence showing he used drugs at least twice less than a year before trial, and he failed a dr ug test the month before trial. The factual sufficiency test is not a matter of counting each side’s w itnesses; it requires deference to the factfinder’s decision unless–10– the disputed evidence contradicting the finding is so objective ly powerful—that is, not subject to credibility determinations—that the factfinder couldn’t have re asonably credited the evidence supporting the finding. See In re J.F.C. , 96 S.W.3d at 266. Testimony by friendly character witnesses doesn’t rise to that level. Additionally, the guardian ad lit em recommended that C.V.L. be returned to Father. He based his recommendation on his be lief that Father “has finally faced his demons” and, it appears, on his observations during Father’s visits with C.V.L. But he also acknowledged that this was Father’s “second or third second chance.” Moreover, the trial judge or jur y, not the guardian ad litem, m ust weigh all the evidence and make the dispositive best i nterest determination. It was t he trial judge’s prerogative to weigh the guardian ad litem’s opinion along with all the other eviden ce—such as (i) the caseworker’s contrary opinion that Father’s rights should be terminated base d on his drug use and potential for future drug use and (ii) the CASA volunteer’s indecision as to what to do. Given that these three disinterested witnesses varied w idely in their opinions on what to do, it is hard to say that the guardian ad litem’s opinion is en titled to dispositive weight. Father’s testimony, even when combined with the other testimony in his favor, is not so objectively overwhelming that the trial court couldn’t reasonab ly decide that the Department met its burden of proof.
IV. C ONCLUSION Surely, the trial judge felt no joy in deciding that it was nec essary to terminate Father’s parental rights with his child. But sometimes trial judges and appellate courts have to do things they don’t like. This is such a case. Sympathy for a parent’s self-inflicted plight, however, is no basis for abandoning our duties as detached arbiters of whether there is sufficient evidence–11– supporting a factfinder’s determinations where the contrary evi dence depends on credibility determinations—the factfinder’s exclusive domain.

190506DF.P05 /Bill Whitehill/ BILL WHITEHILL JUSTICE