in the Interest of A.L.J., A.L.J., G.A.G. v. Department of Family and Protective Services ( 2019 )

Opinion issued September 24, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00251-CV
———————————
IN THE INTEREST OF A.L.J., A.L.J., G.A.G.
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2017-04601J
MEMORANDUM OPINION
In this appeal, the mother of three minor children challenges the trial court’s
final decree terminating her parental rights based on findings that (a) she
endangered the children, (b) she failed to comply with a provision of a court order
specifying the actions necessary to obtain return of her children, and
(c) termination of her parental rights was in the best interest of the children. TEX.
FAM. CODE § 161.001(b)(1)(E), (O); id. § 161.001(b)(2). She challenges the
sufficiency of the evidence to support the predicate act and best interest findings.
She also challenges the sufficiency of the evidence to support the court’s
subsequent decision to appoint the Department of Family & Protective Services
(“Department”) as managing conservator of the children.
We affirm.
Background
This case concerns A.G. (“Mother”) and her three children: A.L.J. (“Alicia”)
and A.L.J. (“Amelia”), twin girls born June 28, 2012, and G.A.G. (“George”), a
boy born February 7, 2017.1 On September 25, 2017, when the twins were almost
five years old and George was eight months old, the Department received a report
alleging that Mother subjected her children to neglectful supervision. According to
the report, George’s father and Mother were found unconscious in a car. George
was in the back. The police responded and were able to wake Mother, who said she
was tired from arguing with George’s father. She stated that she had been staying
in a hotel for a few days, and she admitted using synthetic marijuana. George was
taken to the hospital as a safety precaution.
Two days later, the Department filed suit for protection of Alicia, Amelia,
and George, and the children were placed in the Department’s temporary managing
1
We use pseudonyms to refer to the subject children and parents in this case. See
TEX. FAM. CODE § 109.002(D); TEX. R. APP. P. 9.8(b)(2).
2
conservatorship. In November 2017, the trial court entered an order establishing
the actions necessary for Mother to obtain the return of her children. The plan
referenced an additional child protection case involving Mother and the twins in
which Mother had been “under the influence” and the twins were placed with their
grandmother. The plan noted that Mother was on probation for driving under the
influence, posing a significant risk to the family due to her continued substance
abuse.
The Department’s plan listed as its goal that Mother demonstrate the ability
to maintain a safe, stable, and sober lifestyle, and refrain from engaging in criminal
activity. The plan required her to complete the following tasks: (1) maintain stable
and safe housing for a minimum of six months; (2) provide the Department’s
caseworker with verification of any and all sources of income; (3) complete a
parenting education course; (4) participate in a drug/alcohol assessment and follow
all recommendations; (5) participate in random drug testing; (6) participate in a
psychosocial assessment and follow recommendations; and (7) attempt to complete
some services while incarcerated.
Trial began in February 2019. The Department called one witness,
caseworker Jasmin Green. In her testimony, Green described the series of events
giving rise to the Department’s case, Mother’s involvement with the criminal
3
justice system, Mother’s progress on the service plan, and why termination was in
the children’s best interest.
Green testified that Mother had texted her at some point before trial to say
that she was not able to leave work to attend the trial. Through her attorney,
Mother did not call any witnesses and did not object to the admission of any of the
Department’s exhibits. After Green’s testimony, the Department asked the trial
court to terminate Mother’s parental rights pursuant to sections 161.001(b)(1)(E)
and (O) of the Texas Family Code. The children’s attorney ad litem opined that the
Department had met its burden to terminate Mother’s parental rights. Following
argument, the court terminated Mother’s parental rights under sections (E) and (O)
and named the Department as the children’s sole managing conservator.2 On
March 7, 2019, the court signed a decree for termination reflecting those findings
and that termination was in the children’s best interest.
Standards of Review
The interests of parents in the care, custody, and control of their children is a
fundamental liberty interest protected by the United States Constitution. See, e.g.,
Troxel v. Granville, 530 U.S. 57, 65 (2000); Santosky v. Kramer, 455 U.S. 745,
758–59 (1982). But the rights of natural parents are not absolute. In re A.V., 113
S.W.3d 355, 361 (Tex. 2003). Protection of the child is paramount, and when the
2
The court terminated both parents’ parental rights, including alleged and unknown
fathers of the children. Only Mother appealed.
4
State institutes proceedings to terminate parental rights, the courts focus on
protecting the best interests of the child. See id.
We strictly scrutinize termination proceedings on appeal because the
“evidence in support of termination must be clear and convincing before a court
may involuntarily terminate a parent’s rights.” Holick v. Smith, 685 S.W.2d 18, 20
(Tex. 1985) (citing Santosky, 455 U.S. at 747–48); see In re J.F.C., 96 S.W.3d 256,
263–64 (Tex. 2002). “‘Clear and convincing evidence’ means the measure or
degree of 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 § 101.007.
In conducting a legal sufficiency review, we view “the evidence in the light
most favorable to the judgment,” which means that we “must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so.” J.F.C., 96 S.W.3d at 266. A reviewing court may not disregard
undisputed facts that do not support the finding, but it “should disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible.” Id. Evidence is legally sufficient when it enables a factfinder to
“reasonably form a firm belief or conviction about the truth of the matter on which
the State bears the burden of proof.” Id. at 265–66; see TEX. FAM. CODE § 101.007.
5
In a factual sufficiency review, the reviewing court again determines
“whether the evidence is such that a factfinder could reasonably form a firm belief
or conviction about the truth of the State’s allegations.” J.F.C., 96 S.W.3d at 266
(quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). But rather than disregarding
disputed evidence that the factfinder could have disbelieved, we consider whether
“a reasonable factfinder could not have resolved that disputed evidence in favor of
its finding.” Id. “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, then the evidence is factually insufficient.” Id.
Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there also is a finding that termination is
in the children’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Due process requires, however, that when a parent has raised the issue of
insufficiency of the evidence to support the trial court’s findings under section
161.001(b)(1)(D) or (E) of the Family Code, an appellate court must address at
those endangerment findings to ensure a meaningful appeal. In re N.G., 577
S.W.3d 230, 235 (Tex. 2019) (per curiam). Due process and due course of law
requirements also mandate that an appellate court detail its analysis when a parent
6
appeals termination under section 161.001(b)(1)(D) or (E) of the Family Code. Id.
at 237.
Predicate Acts
On appeal, Mother contends that the evidence was not legally or factually
sufficient to support a finding that she endangered her children under section
161.001(b)(1)(E) or that she failed to comply with a provision of a court order
establishing necessary actions to obtain the return of the children under section
161.001(b)(1)(O).
A. The evidence was legally and factually sufficient to show that Mother
endangered the children under section 161.001(b)(1)(E).
A court may order termination of the parent-child relationship if it finds by
clear and convincing evidence that a parent “engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangers the
physical or emotional well-being of the child.” TEX. FAM. CODE
§ 161.001(b)(1)(E). The relevant inquiry is whether evidence exists that the
endangerment of the child’s physical and emotional well-being was the direct
result of the parent’s conduct, including acts, omissions, or failure to act. In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In re
S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
The word “endanger” as used in section 161.001 “means more than a threat
of metaphysical injury or the possible ill effects of a less-than-ideal family
7
environment.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). In this context, endanger means to expose to loss or injury, or to jeopardize.
Id. (internal citations omitted); see Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied) (endangerment includes jeopardizing
a child’s emotional or physical health); accord In re A.J.H., No. 01-18-00245-CV,
2019 WL 190050, at *7–8 (Tex. App.—Houston [1st Dist.] Jan. 15, 2019, no pet.)
(mem. op.). Danger to the child’s well-being can be inferred from parental
misconduct alone, and courts may consider parental conduct both before and after
the child’s birth. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“[T]he
endangering conduct may include the parent’s actions before the child’s birth,
while the parent had custody of older children, including evidence of drug
usage.”). The conduct need not occur in the child’s presence, and it may occur
“both before and after the child has been removed by the Department.” Walker v.
Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied); In re A.A.M., 464 S.W.3d 421, 426 (Tex.
App.—Houston [1st Dist.] 2015, no pet.). Termination under section (E) must be
based on more than a single act or omission—the evidence must demonstrate a
voluntary, deliberate, and conscious course of conduct by the parent. In re C.A.B.,
289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
8
The undisputed evidence supports the court’s finding under section (E).
Mother’s criminal history, including her ten-month period of incarceration, her use
of illegal drugs, and her history of instability support a finding of endangerment.
“As a general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the physical and emotional well-being of a child.” N.A.B. v.
Tex. Dep’t of Family & Protective Servs., No. 03-14-00377-CV, 2014 WL
6845179, at *2 (Tex. App.—Austin Nov. 26, 2014, no pet.) (mem. op.). Although
incarceration alone will not support termination, evidence of criminal conduct,
convictions, and imprisonment may support a finding of endangerment under
section (E). See C.A.B., 289 S.W.3d at 886. Likewise, “a parent’s use of narcotics
and its effect on his or her ability to parent may qualify as an endangering course
of conduct.” J.O.A., 283 S.W.3d at 345. Illegal drug use may support termination
under section (E) because “it exposes the child to the possibility that the parent
may be impaired or imprisoned.” Walker, 312 S.W.3d at 617. In addition, “a
parent’s decision to engage in illegal drug use during the pendency of a termination
suit, when the parent is at risk of losing a child, may support a finding that the
parent engaged in conduct that endangered the child’s physical and emotional
wellbeing.” In re A.M., 495 S.W.3d 573, 580 (Tex. App.—Houston [1st Dist.]
2016, pet. denied) (quoting In re K.C.F., No. 01-13-01078-CV, 2014 WL 2538624,
at *9–10 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet. ) (mem. op.)).
9
The record reflects that Mother was incarcerated repeatedly, violated her
supervision terms multiple times, and continued to use drugs during the pendency
of her case, despite the threat of reincarceration or termination of her parental
rights. Mother pleaded guilty to “conspiracy to transport illegal aliens” in 2016.3
Before pleading guilty, she was incarcerated for nearly 10 months between August
2014 and June 2015. She was incarcerated again in late June 2016 until July 8,
2016. In July 2016, the court sentenced her to time served and three years’
supervised release. At the time of sentencing, she had been incarcerated for a large
portion of her twin daughters’ lives.
The supervised release terms required her to support her children, refrain
from possessing or using controlled substances, refrain from associating with
people who engage in criminal activity, and submit to periodic drug screening.
Despite the terms of her supervision, the record demonstrates that Mother
continued to subject herself and her children to the possibility that she would be
incarcerated again for violating the terms of supervision. See Walker, 312 S.W.3d
at 617. In 2017, police found Mother unconscious in a car. George was asleep in
the back seat, and Mother admitted to being under the influence of illegal drugs.
This incident occurred while Mother was on supervised release and could have
resulted in further imprisonment. The record shows that Mother was again
3
The underlying facts of this conviction are not in the record.
10
incarcerated in November 2017 at the initiation of the child protection case.
Mother also lived with a man who was arrested for human trafficking, in violation
of her supervised release requirement not to associate with people who engage in
criminal activity.4 A.G.’s service plan notes a previous case with the Department
involving the twins in which Mother was on probation for driving under the
influence and had been under the influence during the investigation. Finally, in
January of 2019, Mother tested positive for amphetamines or methamphetamines.
Mother argues that the evidence is insufficient because there is no evidence
that the children were physically harmed. But endangering conduct need not result
in direct harm to the child. Walker, 312 S.W.3d at 617. A reasonable factfinder
could conclude that Mother endangered the children, considering her involvement
with the criminal justice system, her continued use of illegal drugs, and her
violations of supervision. We conclude that the evidence would enable a factfinder
to “reasonably form a firm belief or conviction” that Mother engaged in conduct
which endangered the physical or emotional wellbeing of her children. See TEX.
FAM. CODE § 161.001(b)(1)(E). The evidence was both factually and legally
sufficient to support the trial court’s finding under section (E). We overrule
Mother’s issue relating to the legal and factual sufficiency of the evidence to
support the trial court’s finding of this predicate act.
4
The specific crime and underlying facts are not in the record.
11
B. The evidence was legally and factually sufficient to support termination
under section 161.001(b)(1)(O).
Mother contends that the evidence is legally and factually insufficient to
support termination of her parental rights under section (O). Specifically, she
argues that the Department did not meet its burden of proving that she failed to
complete the requirements of her court-ordered family service plan.
Texas Family Code section 161.001(b)(1)(O) provides that the court can
order termination upon a finding by clear and convincing evidence that 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.
TEX. FAM. CODE § 161.001(b)(1)(O). A trial court may direct a parent to perform
specific acts by ordering her to comply with a family service plan created by the
Department. See In re A.A., No. 01-13-00524-CV, 2013 WL 6569922, at *9 (Tex.
App.—Houston [1st Dist.] Dec. 12, 2013, pet. denied) (mem. op.). Partial or
substantial compliance with a court order is not enough to avoid a termination
finding under section 161.001(1)(O). See In re M.C.G., 329 S.W.3d 674, 676 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied); In re T.T., 228 S.W.3d 312, 319
(Tex. App.—Houston [14th Dist.] 2007, pet. denied). We note that in a bench trial,
we may “presume the trial court took judicial notice of its record without any
request being made and without any announcement that it has done so.” In re K.F.,
402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see
12
also In re B.D.A., 546 S.W.3d 346, 363–64 (Tex. App.—Houston [1st Dist.] 2018,
pet. denied).
There is no dispute that at the time of trial the children had been in the
temporary managing conservatorship of the Department for not less than nine
months as a result of their removal for abuse or neglect. The evidence further
demonstrates, and Mother does not dispute, that the trial court signed an order in
November 2017 in which the court ordered Mother to comply with each of the
requirements in her service plan prepared by the Department one month earlier.
The service plan outlined the following tasks: (1) maintain stable and safe
housing for a minimum of six months; (2) provide the caseworker with any and all
sources of income; (3) complete a parenting education course; (4) participate in a
drug/alcohol assessment and follow all recommendations; (5) participate in random
drug testing; (6) participate in a psychosocial assessment and follow all
recommendations; (7) attempt to complete some services while incarcerated. The
order set forth with certainty the specific terms for compliance and the actions that
Mother needed to take to obtain the return of her children. See N.G., 577 S.W.3d at
238–39 (stating that under section 161.001(b)(1)(O) an order must be sufficiently
specific to warrant termination of parental rights, and an order that dictates the
actions necessary for the parent to obtain return of a child is sufficiently specific
13
when the terms for compliance are set forth with certainty so that the parent knows
the obligations that have been imposed).
The record reflects that Mother completed limited services by the time of
trial. Green testified that, at least initially, Mother was participating in the services
listed on her plan, but her involvement slowed. The permanency order from
November 2018 indicates Mother was not making acceptable progress on the
service plan. Green testified that Mother lived with a man who was subsequently
arrested for human trafficking. Mother relied on him to support herself. In
December 2018, two months before trial, Green spoke with Mother about the plan,
told her that she was behind in completing the tasks, and that if she did not
complete the tasks the Department would move for termination.
At the time of trial, the only services Mother reported to Green that she had
finished were the parenting course and a substance abuse assessment. Though
Mother said she had completed the parenting course, she did not provide Green
with the certificate to verify completion because she lost it in a “domestic dispute”
with a family member. As to the substance abuse assessment, Green explained that
Mother was involved in individual therapy and substance abuse treatment and her
participation was ongoing. But Green also testified that on one occasion, Mother
overdosed on medication and was hospitalized for three weeks.
14
Mother did not complete the other tasks on her service plan. The service
plan required her to submit to drug testing and demonstrate progress by testing
negative for drugs and alcohol. Green testified that Mother tested positive for
methamphetamine or amphetamines one month before trial. Mother did not
provide proof of income or housing. A permanency report to the court filed a few
days before trial notes that Mother was searching for housing and though she
reported being employed, she had not provided proof of income to her caseworker.
The record reveals no evidence that Mother completed the psychosocial
assessment, and Mother does not claim that she did.
Substantial compliance with a service plan is not sufficient to avoid a
termination finding under Texas Family Code section 161.001(b)(1)(O). See In re
M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)
(“The Family Code does not provide for substantial compliance with a family
services plan.”). While it is undisputed that Mother completed some tasks in the
family service plan and that she initially took steps to regain custody, she
ultimately failed to complete all of the tasks called for in the court-ordered plan
and gave up her efforts to comply. Mother does not argue that she was unable to
comply or that she made a good faith effort to comply. See TEX. FAM. CODE
§ 161.001(d). Considering all of the evidence presented, including any disputed or
conflicting evidence, we find that a reasonable factfinder could have found that
15
Mother failed to comply with all of the terms of the court-ordered service plan.
Thus, we conclude that there is legally and factually sufficient evidence of
Mother’s failure to comply with a court order. We overrule Mother’s issue relating
to the legal and factual sufficiency of the evidence to support the trial court’s
finding of a predicate act pursuant to section 161.001(b)(1)(O).
Best Interest of the Child
In her third issue, Mother argues that the evidence is legally and factually
insufficient to support the trial court’s determination that termination of her
parental rights was in the children’s best interest. See TEX. FAM. CODE
§ 161.001(b)(2). We disagree.
“A strong presumption exists that a child’s best interests are served by
maintaining the parent-child relationship.” Walker, 312 S.W.3d at 618. The “best
interest” finding is a separate inquiry from the finding of a predicate act, but
evidence that supports a predicate act finding may also be probative of the best
interest of the child. In re A.R.R., No. 01-18-00043-CV, 2018 WL 3233334, at *4
(Tex. App.—Houston [1st Dist.] July 3, 2018, pet. denied) (mem. op.). Our review
of the trial court’s best interest finding is guided by the following non-exclusive
factors:
(1) the desires of the child,
(2) the emotional and physical needs of the child now and in
the future,
16
(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 the
existing parent-child relationship is not proper, and
(9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Department is not
required to prove all of these factors, and the absence of evidence about some
factors does not preclude the factfinder from reasonably forming a strong
conviction that termination is in the child’s best interest. See C.H., 89 S.W.3d at
27.
Multiple factors support the trial court’s finding that termination of Mother’s
rights was in the children’s best interest.
Desires of the Children
At the time of trial, Alicia and Amelia were six years old and George was
two years old. When children are too young to express their desires, the factfinder
may consider that the children have bonded with the foster family, are well cared
17
for by the foster family, and have spent minimal time with a parent. In re L.G.R.,
498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
The record reflects that the children spent minimal time with Mother.
Mother was incarcerated for a large portion of the twins’ lives. When Mother
committed the federal offense in August 2014, they were two years old.
Subsequently, in the time leading up to her guilty plea in 2016, she was
incarcerated for nearly 10 months. In September 2017, when the girls were five
and George was eight months old, Mother was found unconscious in a car with
George in the backseat. The record reflects that before this incident, the twins had
previously been removed from Mother’s care and placed with their grandmother
during an investigation, though it is unclear how long they were removed. The
record shows that Mother was incarcerated when served with the Department’s
suit. Once the Department became the temporary managing conservator of the
children in November 2017, Mother began having monthly visits with them. The
undisputed evidence shows that Mother missed monthly visits and had not had a
visit since December 2018. Green testified that she contacted Mother before her
January 2019 visit, and Mother responded that she had been in a psychiatric
hospital. Mother told Green she had been diagnosed with bipolar disorder, Green
testified that at some point during the pendency of the case Mother overdosed on
18
medication and was hospitalized for three weeks. Mother did not attend any visits
in 2019.
The record also reflects that the children were thriving with the foster
family. They had been living with the foster family since shortly after removal, and
their needs were being met.
The emotional and physical needs of the children now and in the future;
the emotional and physical danger of the children, now and in the
future; and the ability of Mother to parent and provide for the
children’s needs
The record supports a finding that termination is in the children’s best
interests according to the second, third, and fourth Holley factors. Evidence of past
misconduct or neglect can be used to measure a parent’s future conduct. In re
A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied). The evidence
discussed in support of the trial court’s findings under section 161.001(b)(1) is
probative of a finding as to potential danger in determining the children’s best
interests. See Walker, 312 S.W.3d at 618.
In addition, Mother continued to use illegal drugs while the case was
pending and while on supervised release. A parent’s drug use supports a finding
that termination is in the best interest of the children. In re L.E.R., No. 14-15-
00205-CV, 2015 WL 3918062, at *8 (Tex. App.—Houston [14th Dist.] June 25,
2015, no pet.) (mem. op.). When police found Mother unconscious in the car with
George in the backseat, she admitted she had used synthetic marijuana. This was in
19
violation of her supervised release. Mother also violated her supervised release by
associating with individuals engaged in criminal conduct. Green testified that
Mother was married to a man who was arrested for human trafficking. He had been
supporting her, and without him, she was unable to support her family. On one
occasion, Mother overdosed on medication and was hospitalized for three weeks.
Finally, in January before trial, Mother tested positive for amphetamine or
methamphetamines.
“Stability is important in a child’s emotional and physical development.” In
re T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
“Without stability, income, or a home, [a parent] is unable to provide for the
child’s emotional and physical needs.” In re C.A.J., 122 S.W.3d 888, 894 (Tex.
App.—Fort Worth 2003, no pet.). The evidence at trial was that Mother had not
shown proof of stable employment or housing. Upon her spouse’s incarceration,
she was unable to fully provide for herself and her children.
The programs available to assist Mother to promote the best interest of
the child
As to the fifth factor, the evidence shows that Mother attempted some of the
services in her family service plan, but she failed to complete the majority of them.
She did not provide proof of completing the parenting class, and she did not
provide proof of income or housing. Though she was referred for a psychosocial
assessment, she did not complete it. Though she was receiving outpatient substance
20
abuse treatment, she tested positive for drugs in the month before trial. While
programs were available to Mother, she did not utilize them.
The plans for the child by the individuals or agency seeking custody and
the stability of the home or proposed placement
Mother did not offer any evidence of her future plans with the children. At
the time of trial, she had not provided the Department with proof of housing. While
she told her caseworker that she was working, she did not provide proof of her
employment. The record reflects that the children were doing well in their
placement. Their needs were met with their foster family, and they were enrolled in
school. The Department had identified a potential relative placement and sought
permanent placement either with the relative or the current foster family.
Taking these factors into consideration in conjunction with the entire record,
a factfinder could reasonably conclude that the children’s best interest would be
better served through the Department’s plan to be adopted by either a family
member or their foster parents. See C.H., 89 S.W.3d at 28 (noting evidence about
placement plans and adoption are relevant to the best interest finding).
The acts or omissions of the parent which may indicate that the existing
parent-child relationship is not proper and any excuse for the acts or
omissions of the parent
We consider Mother’s acts or omissions and any excuses for her acts or
omissions. As set forth above, Mother had been absent from the children’s lives
during her various periods of incarceration. She continued to use illegal drugs
21
while on supervision, both during the incident that led to the children’s removal
and one month before trial. The record reflects that at one point during the twins’
lives, Mother was on probation for driving under the influence. She did not show
proof of financial support or housing for the children, and she did not complete her
family service plan. She did not attend the trial and did not present an excuse for
her conduct.
Considering the entire record, we conclude that a reasonable factfinder could
have formed a firm belief or conviction that the best interest of Amelia, Alicia, and
George would be served by termination of Mother’s parental rights. We therefore
find the evidence legally and factually sufficient to support the trial court’s
findings. We overrule Mother’s second issue.
Conservatorship of the Child
Mother challenges the sufficiency of the evidence to support the finding that
appointment of the Department as managing conservator of the children is in their
best interest. Specifically, Mother contends that there was no evidence in the
record regarding her parenting abilities or the quality of her interactions with her
children and insufficient evidence regarding the events giving rise to the suit.
When the parents’ rights are terminated, the trial court must appoint “a
suitable, competent adult, the Department of Family and Protective Services, or a
licensed child-placing agency as managing conservator of the child.” TEX. FAM.
22
CODE § 161.207(a); see In re M.M.M., No. 01-16-00998-CV, 2017 WL 2645435,
at *17 (Tex. App.—Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.).
Conservatorship determinations are reviewed for an abuse of discretion and will be
reversed only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d
611, 616, (Tex. 2007); see also A.C., 394 S.W.3d at 644.
An order terminating the parent-child relationship divests the parent of all
legal rights and duties with respect to the child. TEX. FAM. CODE § 161.206(b).
Once we overrule a parent’s challenge to a termination order, the trial court’s
appointment of the Department as sole managing conservator may be considered a
“consequence of the termination pursuant to Family Code section 161.207.” In re
A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
Because we have overruled Mother’s challenge to the portion of the trial
court’s order terminating her parental rights, the order has divested Mother of her
legal rights and duties related to Alicia, Amelia, and George. See TEX. FAM. CODE
§ 161.206(b); In re D.K.W., Jr., No. 01-17-00622-CV, 2017 WL 6520439, at *5
(Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet. denied) (mem. op.). As a
result, Mother does not have standing to challenge the portion of the order
appointing the Department as permanent managing conservator of the children
because any alleged error could not injuriously affect her rights. D.K.W., Jr., 2017
WL 6520439, at *5. We overrule this issue.
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Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
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