Opinion
No. 02–12–00085–CV.
2013-09-12
In the Interest of J.G., D.G., and C.G., Children.
Wayne Northcutt, Denton, for Appellant. T.C., J.C., Valley View, for Appellee.
Wayne Northcutt, Denton, for Appellant. T.C., J.C., Valley View, for Appellee.
Panel: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
OPINION
ANNE GARDNER, Justice.
I. Introduction
Appellants J.C. and C.C. appeal the trial court's denial of their petition to adopt three children, J.G., D.G., and C.G. Appellants contend in three issues that the trial court abused its discretion by denying their petition, by misapplying the best interest of the child standard, and by denying their appeal of the visiting judge's order. No appellee's brief was filed in this appeal. We reverse and remand.
II. Background
C.C. is the biological mother of the three children, but her parental rights to the children were terminated by court order in December 2007. After C.C.'s parental rights were terminated, the children's great-grandparents were named as the children's permanent managing conservators.
The final order of termination states that C.C. did not appear for trial either in person or through counsel.
We refer to the children's great-grandparents/permanent managing conservators individually as Grandmother or Grandfather and collectively as Grandparents. See generallyTex.R.App. P. 9.8.
Appellants were married on August 22, 2009. They filed this suit for adoption of the three children on September 22, 2010. At the time of filing, the children had lived with Appellants for more than two years.
Appellants both testified at the final hearing on November 23, 2011. C.C. testified that she is married to J.C. and that she is the biological mother of J.G., D.G., and C.G. At the time of the final hearing, J.G. was fourteen, C.G. was twelve, and D.G. was nine. C.C. testified that the three children had lived with her and J.C. for at least six months before the commencement of the adoption suit and that the three children resided with her and J.C. at the time of the final hearing.
C.C. testified that her parental rights to the three children had been terminated by a court in 2007 and that drugs, specifically methamphetamines, were a problem for her at the time. The parental rights of the children's biological father had been terminated at the same time. C.C. testified, though, that her “whole life has changed,” that she and J.C. now regularly participate in their church, that they teach and work with children, that she and J.C. had each been tested for drug use at the beginning of this case, and that the results were negative. C.C. testified that she was asking the court to grant an adoption of all three children by Appellants and that adoption would be in the children's best interest.
C.C. also testified that she was asking the court to change the children's last names.
At the end of C.C.'s testimony, the trial court asked C.C. who had initiated the suit to terminate her parental rights, and C.C. testified that she believed it to be CPS. C.C., however, denied having received any court papers related to the termination case, testifying that her grandparents had contacted her to say that her rights had been terminated. But in response to another of the trial court's questions, C.C. also said that she had received a service plan for the CPS case. When the trial court asked why CPS had gotten involved in her life, C.C. testified that she had been using drugs.
J.C. then testified and basically reiterated C.C.'s testimony, including that he believed adoption was in the children's best interest. At the conclusion of J.C.'s testimony, the trial court expressed its opinion that C.C. had not been as forthcoming with her testimony about the CPS case as the court had hoped she would be and asked counsel to provide the court with the paperwork from the termination case. Among other things, the trial court stated that “using drugs isn't what it takes to get CPS in your life. Using drugs and a problem with your children is what gets CPS in your life.” The trial court later stated that it was “going to know what went on with the children beforehand before I let this lady who gave them up adopt them.”
The documents relating to the 2007 termination case are not included within the appellate record.
Several other documents were in the trial court's file at the time of the final hearing and are included in the clerk's record in this appeal. Among them are waivers of citation and consents to adoption filed by Grandmother and Grandfather, who were still serving as the children's permanent managing conservators. In those documents, Grandmother and Grandfather each expressly consented to the children's adoption by Appellants.
Also within the court's file was a report prepared by Sandy Russell, the person the trial court had appointed as “evaluator to make and prepare a preadoptive social study and postplacement adoptive social study to evaluate the parties.” Russell filed her report with the trial court in January 2011, almost ten months before the final hearing.
Russell's report states that Grandmother “started letting the children see their mother once [Grandmother] saw that [C.C.] was changing her life,” that Appellants lived next door to Grandparents, and that the children had resided with Appellants since July 2008. Russell also reported that “[a]ll three children are in excellent health and [that] their immunizations are current.” Russell wrote that C.C. does not work outside the home and that she is at home when the children return from school each day. C.C. is also “very active in the church” and “teaches a children's class.” Russell also reported that “[a]ll of the children stated they want this adoption very much.”
Russell's report also includes a favorable description of J.C. as well as Appellants' home environment. Among other things, Russell reported that
[J.C.] and [C.C.] provide a good family unit for their family. The family is active in their church, the children's athletic events[,] and watching movies together. [C.C.] considers herself to be a loving parent and states that the children are the most important people in her life. Both parents stated that the children are very well behaved and usually react well to verbal punishment and that they usually use the grounding method. The children were interviewed separately and all stated that they very much want the adoption. They love being with their mom and stated [J.C.] is [a] good dad.
....
[The children] are healthy children who are glad to be reunited with their mom and are lucky that [Grandmother] was able to keep the family together and is still in their daily lives. [J.C.] loves them and they appear to return his affections. [J.C.] and [C.C.] are aware of how fast life can change and want to protect their family emotionally as well as financially.
....
[Grandmother] was interviewed by phone on January 7, 2011. [She] states that she feels that [C.C.] has turned her life around[,] and she sees how happy the children are on a daily basis. They love their mom and [J.C.] very much. She stated when the children were separated from their mom that they cried for her often. [Grandmother] stated that she made the decision to let the children live with their mom when she straighten[ed] her life up and became a responsible parent again.
All references responded favorably and stated [J.C.] and [C.C.] are good parents. They are active with their children in church and school activities.
....
All three children are very healthy children who already consider [J.C.] and [C.C.] as their parents. [J.C.]'s family is committed to [the children] and has stated that this will remain unchanged whether the adoption is approved or unapproved. Adoption is recommended.
Attached to Russell's report are responses to questionnaires that Russell had sent to Appellants' four references and a letter of recommendation from Appellants' pastor. The letter of recommendation and each of the questionnaire responses contain very favorable descriptions of Appellants as parents.
On April 2, 2012, the trial court signed an order denying Appellants' petition for adoption. The trial court's findings of fact and conclusions of law are dated June 6, 2012. The trial court's findings of fact state that C.C.'s parental rights to the children were terminated on December 14, 2007, following a suit initiated by CPS; that Grandparents had been appointed as the children's permanent managing conservators; that Grandparents had permitted the children to live with Appellants after December 14, 2007; and that Appellants had filed a petition for adoption of the children on September 22, 2010. The trial court's sole conclusion of law was that adoption of the children by Appellants “is not in the best interest of the children.”
III. Discussion
In their first and second issues, Appellants contend that the trial court abused its discretion by denying their petition for adoption and by misapplying the best interest of the child standard.
A. Applicable Law
Family code section 162.016(b) states that “[i]f the court finds that the requirements for adoption have been met and the adoption is in the best interest of the child, the court shall grant the adoption.” Tex. Fam.Code Ann. § 162.016(b) (West 2008). The decision to grant or deny an adoption is within the discretion of the trial court, and we may not set aside the decision except for abuse of discretion. See In re W.E.R., 669 S.W.2d 716, 716 (Tex.1984); In re D.R.L.M., 84 S.W.3d 281, 305 (Tex.App.-Fort Worth 2002, pet. denied). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.2004). Legal and factual sufficiency are not independent grounds of error in this adoption context, but they are relevant factors in deciding whether the trial court abused its discretion. See D.R.L.M., 84 S.W.3d at 301. For this analysis, we consider whether the court had sufficient information upon which to exercise its discretion and whether it erred in its application of that discretion. See Newell v. Newell, 349 S.W.3d 717, 720–21 (Tex.App.-Fort Worth 2011, no pet.).
B. Analysis
We begin by determining whether the trial court had sufficient information upon which to exercise its discretion, and we hold that it did. In addition to Appellants' testimony, the trial court had each Grandparent's waiver of citation and consent to adoption, Russell's report, and the attachments to Russell's report, all of which expressed support for Appellants' petition to adopt the children. This information was sufficient for the trial court to properly exercise its discretion.
We next address whether the trial court erred in the application of its discretion. Although the trial court did not base its denial of the petition for adoption on a failure to establish the prerequisites to adoption and concluded only that the adoption would not be in the children's best interest, we note that it appears that the prerequisites to adoption have been established. Family code section 162.009 states that a child must reside with the petitioner for at least six months before a court may grant an adoption unless the court determines that waiver of the requirement would be in the child's best interest. Tex. Fam.Code Ann. § 162.009 (West 2008). Both C.C. and J.C. testified that the children had lived with them for more than six months. Family code section 162.010 requires the consent of a child's managing conservator if the managing conservator is not the petitioner, and each of the children's managing conservators filed their consent to the adoption by Appellants. See id. § 162.010 (West 2008). There is also a pre-adoptive and post-placement social study by Russell on file with the trial court as required by family code section 162.003. See id. § 162.003 (West 2008); see also id. §§ 162.005, .007 (West 2008).
Turning now to the trial court's conclusion that adoption by Appellants would not be in the children's best interest, we note that the circumstances of this case are quite similar to those in In re D.D.T., No. 11–04–00022–CV, 2005 WL 283579, at *1–2 (Tex.App.-Eastland Jan. 31, 2005, no pet.) (mem. op.). In D.D.T., Jones, a single woman with four other children, sought to adopt two boys. Id. at *1. The boys had lived with Jones and her other children for twenty months, and the record included a home study, a social study, a criminal background check, and similar items. Id. Jones testified in support of her petition to adopt the boys, and the trial court also asked to hear testimony by CPS adoption specialist Sherilyn Money. Id. Money testified that she was familiar with Jones and the case file, and she recommended that the trial court grant the adoption by Jones. Id.
The D.D.T. court summarized the next part of the adoption hearing as follows:
The trial court then questioned Money about the availability of couples who wanted to adopt children and the details surrounding that situation. The trial judge commented on the record that it was his impression that there were “just lots and lots and lots of couples waiting to adopt children,” and that he was personally acquainted with couples who had paid as much as $25,000 or $30,000 to “adopt a Russian child or Chinese child.” The trial judge told Money that he was not “arguing with [her] assessment that Jones is an appropriate placement.” However, the trial judge “wonder[ed] why these children cannot be placed in the home [of] a couple who are able to meet the financial needs of these children.” Money then told the trial court that the children were hard to place children and that they had become “attached by the time the termination was done. And it would be very difficult to move them out of this home.”
Id. After initially stating that it would grant the adoption, the trial court changed course and announced that the adoption would be denied. Id. at *1–2.
Addressing Jones's sole issue on appeal—that the trial court erred by denying the petition for adoption “because all of the evidence was uncontroverted and supported the adoption”—the D.D.T. court held that the trial court abused its discretion by denying the petition for adoption. Id. at *3. In so holding, the court wrote,
Nothing in the 13–page clerk's record or in the 11–page reporter's record in this case supports the trial court's decision. All of the evidence of record in the case was in support of Jones's petition for adoption of DDT and BDT. The implied findings of fact are not supported by any evidence of substantive and probative character. Even if there were some evidence to support the implied findings, the implied findings are against the great weight and preponderance of the evidence, as outlined above; and the trial court abused its discretion when it denied the petition for adoption.
Id.
Here, the Grandparents, who are also the children's permanent managing conservators, supported the adoption; the court-appointed evaluator recommended adoption; all of Appellants' references supported their petition for adoption; and the children's attorney ad litem supported the petition for adoption. The trial court seemed to believe that C.C. was not entirely truthful in responding to questions about the prior parental termination case, stating that C.C. must have been served with the suit before her parental rights had been terminated and questioning C.C. about her past drug use. It is possible, however, that C.C. did not understand the trial court's question about service of process or that the trial court misinterpreted C.C.'s answer. C.C. testified that she “wasn't present whenever [her] rights were terminated” and that her grandparents contacted her to tell her that her rights had been terminated. But C.C. also testified that she received “court papers” and that the papers told her “that [she] needed to take some classes and different things that were ordered from CPS.” It thus appears that C.C. received at least a service plan in the termination case.
We as an appellate court are not free to judge the credibility of the witness or to substitute our judgment for that of the trial court, and we do not purport to do so by pointing out the possible misunderstanding of C.C.'s testimony. See Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 290 (Tex.App.-Dallas 2012, no pet.) (“Under an abuse of discretion standard, the trial court judges the credibility of the witnesses and may resolve any conflicting testimony.”). However, whether C.C. misunderstood the trial court's question or whether the trial court misinterpreted C.C.'s answer about being served in the parental termination case, that series of questions and answers is the only evidence that weighs in favor of denying Appellants' petition for adoption. Otherwise, C.C. acknowledged that her prior drug use led to the termination of her parental rights, but she also testified that she had turned her life around and no longer uses drugs. All of the other information and evidence before the trial court overwhelmingly weighed in favor of granting the petition for adoption. No one opposed adoption, and the children each expressed a strong desire to be adopted by Appellants. We therefore hold that the trial court abused its discretion by concluding that adoption is not in the children's best interest because the evidence supporting the trial court's finding is against the great weight and preponderance of the credible evidence contrary to the finding. See D.D.T., 2005 WL 283579, at *3 (holding trial court's implied findings in adoption case against great weight and preponderance of the evidence). Thus, although the trial court had sufficient evidence before it upon which to exercise its discretion, the trial court erred in the application of its discretion. See id.; see generally Newell, 349 S.W.3d at 720–21 (“In determining whether there has been an abuse of discretion because the evidence is legally or factually insufficient to support the trial court's decision, we consider whether the court had sufficient information upon which to exercise its discretion and whether it erred in its application of that discretion.”). We therefore sustain Appellants' first and second issues and do not reach their third issue.
Appellants' third issue would not entitle them to any additional relief from this court even if we sustained it.
We cannot, however, render judgment for Appellants because they had the burden of proof in this adoption proceeding, and we cannot hold that they proved as a matter of law that adoption is in the children's best interest. The series of questions by the trial court and answers by C.C. is some evidence, albeit factually insufficient evidence, that adoption is not in the children's best interest. See D.D.T., 2005 WL 283579, at *3 (remanding for new trial because petitioner seeking adoption bore burden of proof but did not conclusively prove elements necessary to adopt). We therefore remand the case to the trial court for a new trial.
IV. Conclusion
Having sustained Appellants' first and second issues and having not reached their third issue, we reverse the trial court's judgment and remand the matter for a new trial on Appellants' petition for adoption. DAUPHINOT, J., filed a dissenting opinion.
LEE ANN DAUPHINOT, Justice, dissenting.
Because I do not believe that we can substitute our judgment for that of the visiting judge, I would conclude that the visiting judge did not abuse his discretion by denying the petition to adopt the children, and I would affirm the visiting judge's judgment.
On December 14, 2007, after a bench trial at which C.C. did not appear, a Denton County district court terminated her parental relationship with the children as well as the birthfather's parental relationship with the children. The Denton County district court found that C.C. had (1) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the children's physical or emotional well-being; (2) knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being; (3) constructively abandoned the children, who had been in the temporary managing conservatorship of the Texas Department of Family and Protective Services (TDFPS) for not less than six months, and TDFPS had made reasonable efforts to return the children to her, she had not regularly visited or maintained significant contact with the children, and she had demonstrated an inability to provide them with a safe environment; and (4) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children, who had been in the temporary managing conservatorship of TDFPS for not less than nine months as a result of their removal from the parents for abuse or neglect. The Denton County district court also found that termination of C.C.'s parental relationship with the children was in the children's best interest. There is no evidence in the record that C.C. appealed the termination of her parental relationship with the children.
Grandmother claimed that she began allowing C.C. to visit with the children when she saw that C.C. had “straighten[ed] her life up and [had] bec[o]me a responsible parent again.” But the evidence also shows that the children had lived with C.C. and J.C. since July 2008, less than eight months after the termination of C.C.'s parental rights. In July 2008, TDFPS was still the children's managing conservator, not Grandparents. And on January 30, 2009, the Denton County district court signed an agreed final order appointing Grandparents, not C.C., as the children's permanent managing conservators.
C.C. and J.C. married in August 2009, about thirteen months before they filed the petition for adoption. They lived next door to Grandparents and saw them daily. C.C. had not worked outside the home since 2001, long before her parental rights were terminated.
At the very short adoption trial on November 23, 2011, C.C. admitted on examination by the children's ad litem that drugs, including methamphetamine, were an issue when her parental rights were terminated. She testified that to make sure she does not have a relapse, she “stay[s] at church. [She does not] go around anyone. [She] stay[s] at home. [Her] life is [her] children.” C.C. confirmed that she and J.C. both submitted to hair follicle tests sometime during the previous six months and that the results were negative. The trial court heard no evidence about C.C.'s length of sobriety, whether she had or had not relapsed and if so, how many times and when, or whether J.C. had any criminal history or history of substance abuse.
The following exchange took place between the visiting judge and C.C. with no objection:
THE COURT: Who ... brought this suit to terminate your parental rights?
[C.C.]: That—I would guess CPS. I'm not sure, sir. I was never—I never received the court papers to go to court whenever the termination happened, so I wasn't present whenever my rights were terminated.
THE COURT: Well, were you served with some papers?
[C.C.]: No, sir. I was not. My grandparents contacted me and told me that my rights were terminated.
THE COURT: Well, you had to have been served some papers for your rights to have been terminated.
[C.C.]: I never received—the only—the only court date—or the only court papers that I received, I went to, and that wasn't for termination.
THE COURT: What was that for?
[C.C.]: That was for them to tell me that I needed to take some classes and different things that were ordered from CPS.
THE COURT: Okay. So what happened that CPS got involved in your life?
[C.C.]: I was doing drugs.
THE COURT: Many people do drugs that don't have CPS involved in their lives. It has to impact the children before CPS gets involved.
[C.C.]: Well, someone had called because my children were not even—they—my children were with my grandmother and someone had called CPS. And I had my youngest son. And when they came in, they sent me straight to take a drug test, and I failed the drug test.
THE COURT: Okay. I don't have any more questions.
J.C.'s perfunctory testimony followed C.C.'s; no one else testified. At the end of testimony, the following dialogue occurred between the visiting judge and C.C. and J.C.'s trial counsel with no objection:
THE COURT: I didn't think your client was all as forthcoming as you told me she was going to be. I—I know people don't get their rights terminated unless they're served with papers. And she told me she wasn't served with papers. I need to see something out of that file because I'm not going to be satisfied with her answers about what went on with the children since she told me she wasn't even served with papers.
You know, I—I know that courts don't terminate people's rights that haven't even been served in a case. So I'm—I'm not able to grant the requested relief based only on her testimony about what went on in that case because I didn't find her to be all as forthcoming as you told me she was going to be.
So I—I don't mind taking this matter under advisement and getting you or [the children's ad litem] to get me some paperwork from that case like the termination decree and the original petition with the affidavits attached to that original petition. Or, if you want, you can bring it back and start over from scratch with [the sitting district judge]. But I believe she's probably going to want to know the same information that I want to know. Because using drugs isn't what it takes to get CPS in your life. Using drugs and a problem with your children is what gets CPS in your life. I've had way too many people come through this Court that have been using drugs and CPS wasn't involved in those cases at all. So I need to know about the children and what went on with them back then.
So whichever way is best for y'all. I'm sure I'll be working again for the Judge sometime in the not too far distant future. So if you want to gather those papers up and get another setting from the coordinator, we'll continue it to that date. And that's really all I need to see in order to make a ruling on the case.
[TRIAL COUNSEL]: Judge, I will be glad to get those documents for you. If I had known those would have been an issue I would have already gotten certified copies out of that file. I'm in and out of that court every week.
THE COURT: Yeah. Well, see, my issue in any case is the children.
[TRIAL COUNSEL]: Absolutely.
THE COURT: Your issue is to represent your client.
[TRIAL COUNSEL]: Yes, Your Honor.
THE COURT: But I'm going to know what went on with the children beforehandbefore I let this lady who gave them up adopt them.
[TRIAL COUNSEL]: I understand that.
THE COURT: Okay.
[TRIAL COUNSEL]: Will the court coordinator have your next date that you're working?
THE COURT: If you'll get those papers and talk to her, she'll give you and me both a date.
[TRIAL COUNSEL]: That will work great.
Would you like for the parents to be back for that?
THE COURT: I really—I can't think of any testimony I need to ask anybody. If you see something in the papers that you think might need to be cleared up, then it would probably be in your clients' best interest
[TRIAL COUNSEL]: Yes.
THE COURT:—to be here so they could clear it up.
[TRIAL COUNSEL]: That will be fine, Judge.
THE COURT: But if she's going to testify to me, she needs to clear it up. I don't like this going around the bushes with people when we all know why we're here and what it's about, or at least everybody needs to know what I'm here about is the best interest of the children.
[TRIAL COUNSEL]: Yes, sir. I will also furnish our Ad Litem a copy of that set of paperwork that I get. Will he need to be here also?
THE COURT: I, knowing [the ad litem], would think he would want to be here.
[AD LITEM]: Yes, Your Honor.... [Emphasis added.]
J.C. and C.C.'s trial counsel furnished the visiting judge with certified copies of the December 14, 2007 final order of termination and the January 30, 2009 agreed final order in suit affecting the parent-child relationship. But despite the visiting judge's request and C.C. and J.C.'s trial counsel's assurances, C.C. and J.C. did not provide the petition for termination with accompanying affidavits to the visiting judge.
The visiting judge issued the following findings of fact after denying the petition for adoption:
1. On or about December 14, 2007, [C.C.]'s parental rights were terminated to the children ... [,] which suit was brought by Child Protective Service[s]. [Grandparents] were named Permanent Managing Conservators of the children.
2. After December 14, 2007, the children were permitted by [Grandmother] to reside with [J.C. and C.C.], Petitioners.
3. On September 22, 2010, Petitioners ... filed a petition requesting adoption of [the children].
The visiting judge concluded that adoption of the children by J.C. and C.C. was not in the children's best interest.
Section 162.016(b) of the family code provides that “[i]f the court finds that the requirements for adoption have been met and the adoption is in the best interest of the child, the court shall grant the adoption.”
We review a trial court's decision on adoption for an abuse of discretion.
.Tex. Fam.Code Ann. § 162.016(b) (West 2008).
A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable.
In re W.E.R., 669 S.W.2d 716, 716 (Tex.1984).
But an appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances.
Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.2004).
Further, an abuse of discretion does not occur when some evidence of substantive and probative character supports its decision.
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); see also Low, 221 S.W.3d at 620.
In a bench trial, it is the trial judge “who has the opportunity to observe the appearance and demeanor of the witnesses, to evaluate the personality of the contending claimants, and to assess the needs of the child.”
Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002).
Hopper v. Brittain, 612 S.W.2d 636, 638 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ).
Unlike the woman seeking to adopt in D.D.T.,
the case characterized by the majority as “quite similar” to the case before us, C.C. had already lost her parental rights to the children on multiple grounds, including endangerment and abandonment. The visiting judge did not make his decision based on C.C.'s marital status but on factors including her own actions that had already cost her her children. Before the trial judge were the 2007 order of termination providing the grounds for termination of C.C.'s rights to the children; the 2009 order transferring permanent managing conservatorship from TDFPS to Grandparents; the home study indicating that Grandmother had placed the children back with C.C. less than a year after C.C.'s rights were terminated and while TDFPS, not Grandparents, was still the children's managing conservator; and the brief testimony of C.C. and J.C.
In re D.D.T., No. 11–04–00022–CV, 2005 WL 283579, at *1–2 (Tex.App.-Eastland Jan. 31, 2005, no pet.) (mem. op.).
C.C.'s testimony indicated that she had apparently abused drugs while her youngest child was in her physical custody, but she minimized the need for the removal. Absent from the record are documents showing more detailed information about why the children were removed from C.C., despite the visiting judge's specific request for this relevant evidence, his offer to continue the trial pending receipt of such evidence, and C.C. and J.C.'s trial counsel's assurances that he would provide the evidence. Just as the trial court may infer from a drug test refusal that a parent was using drugs in a parental termination case,
the visiting judge here could properly infer that C.C. and J.C.'s refusal to provide the evidence supporting the removal of the children from C.C. in 2007 indicated that such evidence would be damaging to their case.
See In re M.E.–M.N., 342 S.W.3d 254, 262 & n. 7 (Tex.App.-Fort Worth 2011, pet. denied).
The visiting judge was entitled to conclude, based on some evidence—the order of termination providing endangerment and abandonment as two of the grounds, his observations of C.C., the testimony she gave at trial, and her refusal to provide the affidavit supporting the children's removal—that the adoption was not in the children's best interest.
See Russell v. Russell, 865 S.W.2d 929, 933 (Tex.1993) (noting a fact may be proved by circumstantial evidence when the fact may be fairly and reasonably inferred from other facts).
See Mabrey v. SandStream, 124 S.W.3d 302, 315 (Tex.App.-Fort Worth 2003, no pet.) (“Viewing the evidence in the light most favorable to the trial court's order and indulging every reasonable inference in its favor, we hold that the trial court did not abuse its discretion in determining that SandStream had a probable right to relief....”); see also In re M.N.G., 147 S.W.3d 521, 530 (Tex.App.-Fort Worth 2004, pet. denied) (op. on reh'g).
Rather than second-guessing the visiting trial judge because he reached a different outcome than I might have reached had I been the factfinder, I would follow the law, overrule C.C. and J.C.'s three issues, and affirm the visiting judge's judgment. Because the majority does not, I respectfully dissent.