in the Interest of M.L.G.J., T.M.J., T.L.W.Jr., M.A.J., T.P.R.J., B.W.D. III, M.R.J., L.C.J., Children ( 2015 )

Affirmed and Majority and Concurring Memorandum Opinions filed March
24, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00800-CV
IN THE INTEREST OF M.L.G.J., T.M.J., T.L.W., JR., M.A.J., T.P.R.J.,
B.W.D. III, M.R.J., and L.C.J., CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2013-03157J
MAJORITY MEMORANDUM OPINION
Appellant C.M.J. (the Mother) appeals the termination of her parental rights
to eight Children, M.L.G.J., T.M.J., T.L.W., Jr., M.A.J., T.P.R.J., B.W.D. III,
M.R.J., and L.C.J.1 The Mother raises two issues in which she challenges the trial
court’s jurisdiction over the oldest child and the legal and factual sufficiency of the
evidence supporting the trial court’s finding that termination of the Mother’s
1
To protect the identities of the minors, we have not used the actual names of the
Children, parents, or other family members. See Tex. R. App. P. 9.8. The alleged father of two of
the Children is deceased. There were four alleged fathers to the other Children whose parental
rights were also terminated, but the fathers are not parties to this appeal.
parental rights is in the best interest of the Children. We affirm.
I. BACKGROUND
On May 12, 2013, the Department of Family and Protective Services (the
Department) received a referral alleging neglectful supervision of the Children.
According to the report, the Mother was incarcerated and left her Children in the
care of a family friend, Betty, who was also sometimes referred to as the
Children’s godmother. Betty was arrested and jailed while the Children were in her
care, and they were left unsupervised and without adequate food for two days.
The record reflects the Mother has eight Children, six girls and two boys.
M.L.G.J., a daughter (Monica), was born January 11, 2000, and she was fourteen at
the time of trial. T.M.J., a daughter (Tina), was born February 10, 2002, and she
was twelve at time of trial. Four of the younger Children have special needs
requiring medical attention and medication. Two of the Children, T.L.W., Jr.
(Troy) and Tina have been diagnosed with ADHD. One of the boys, B.W.D., III
(Bobby), is autistic and non-verbal. The youngest child L.C.J. (Lisa), who was not
yet two years old at the time of trial, is mentally challenged, has impaired vision
and hearing loss, and suffers from seizures. In addition, when Lisa was taken into
the Department’s care, she had scabies, a skin condition caused by mite infestation,
and she had not received adequate care.
The Department filed its suit for protection of the Children on May 20, 2013.
The Department’s investigative caseworker, Lea Mitchell, filed an affidavit setting
out the basis for the Department’s suit. The affidavit was admitted at trial without
objection. When Mitchell went to the residence to investigate the referral, she was
told that the Children were gone and their whereabouts were unknown. Mitchell
located the Children, except for Monica, at the residence of Donna, Betty’s
daughter. The oldest child, Monica, was staying with another relative. Donna
2
informed Mitchell her mother had been incarcerated since May 10, 2013, and the
Children were left in the care of two teenage relatives. Donna expressed concern
that the Children with special needs were not receiving adequate supervision or
their prescribed medication. Mitchell also spoke to Tina, Troy, and M.A.J.
(Monique), who complained that there was not enough food in the home after
Betty’s arrest. Lisa was taken to Texas Children’s Hospital for an examination by a
physician, who confirmed Lisa’s reported special needs.
The trial court conducted an adversary hearing on May 30, 2013. At the
conclusion of the hearing, the trial court found sufficient evidence supporting
danger to the Children and the need for their protection. The court appointed the
Department as temporary managing conservator of the Children. The court also
appointed Child Advocates, Inc. (the Advocate) as guardian ad litem for the
Children. The Children were placed in five different foster homes.
On June 11, 2013, the Department prepared the Mother’s family service
plan, which required the Mother to complete the specified tasks and services before
the Children would be returned to her. These tasks and services included refraining
from illegal drug use and criminal activity; submitting to random drug tests;
completing a substance abuse assessment; participating in a parenting class;
maintaining safe and stable housing and employment for at least six months;
participating in individual therapy; and completing a psychosocial assessment. On
July 18, 2013, the trial court signed additional temporary orders. In addition to
ordering the Mother to complete the services set out in the family service plan, the
Mother was ordered to complete a substance abuse treatment program and
complete a psychological examination and follow all recommendations. Regular
status and permanency hearings were held to monitor the Children’s well-being
and the Mother’s progress in completing the services ordered for reunification with
3
the Children.
The case was tried to the court on May 22, 2014. The Mother testified at trial
about her efforts to comply with her court-ordered family service place to obtain
reunification with her Children. The Department’s substitute care caseworker,
Aasyia Freeman, also testified about the circumstances under which the Children
came into the Department’s care and the Mother’s failure to complete the court-
ordered services for reunification with her Children. The volunteer Advocate
testified about her recommendation that the Mother’s parental rights be terminated
and the reasons therefor. See Tex. Fam. Code Ann. § 107.002(e) (West 2014)
(setting out the guardian ad litem’s duty to file reports and testify regarding her
recommendations relating to the best interest of the child and the reasons for the
recommendations). The Mother’s counsel objected to the hearsay portions of the
Mother’s family service plan, but his objection was overruled. The Department’s
other exhibits were admitted without objection. Included in the exhibits were the
records from the Mother’s criminal convictions for drug offenses. In addition, the
reports from the Mother’s positive drug tests were admitted.
At the conclusion of the trial, the court granted the Department’s request for
termination of the Mother’s parental rights to the Children. On September 15,
2014, the trial court signed a final judgment reciting that the Mother’s parental
rights were terminated based on findings that termination is in the Children’s best
interest and that the Mother committed acts establishing the predicate termination
grounds set out in subsections E and O of Texas Family Code Section 161.001(1).
See Tex. Fam. Code Ann. §§ 161.001(1)(E) & (O), 161.001(2) (West 2014). The
Department was appointed sole managing conservator of the Children. The Mother
filed a timely notice of appeal.
4
II. JURISDICTIONAL ISSUE
In the Mother’s first issue, she challenges the trial court’s jurisdiction over
Monica, the oldest child. She contends that the 314th District Court lacked
jurisdiction over Monica because the 312th District Court had continuing,
exclusive jurisdiction over her as a result of a previous suit.
Section 155.001 of the Texas Family Code provides that a court acquires
continuing, exclusive jurisdiction over suits affecting the parent-child relationship
in connection with a child when a final order is rendered. Tex. Fam. Code Ann. §
155.001(a) (West 2014). The Family Code also provides that “[i]f a court of this
state has acquired continuing, exclusive jurisdiction, no other court of this state has
jurisdiction of a suit with regard to that child except as provided by this chapter or
Chapter 262.” Id. § 155.001(c). Chapter 262, governing suits for protection of a
child filed by a governmental entity, has an express provision governing
jurisdiction. Section 262.002 provides: “A suit brought by a governmental entity
requesting an order under this chapter may be filed in a court with jurisdiction to
hear the suit in the county in which the child is found.” Id. § 262.002.
A petitioner is required to request from the bureau of vital statistics
identification of the court that last had continuing, exclusive jurisdiction over a
child unless the petition states that no court has such jurisdiction or that the current
court has continuing, exclusive jurisdiction, and the issue is not disputed. Id. §
155.101(a). A letter from the State Registrar of Texas Vital Statistics was admitted
in evidence. The letter stated that the 312th District Court “last had jurisdiction”
over a case involving Monica under docket number 2005-15454. Notably, the letter
did not state that the 312th District Court had “continuing, exclusive jurisdiction”
over Monica. Thus, the bureau of vital statistics did not provide the information
required by the statute.
5
Section 155.104(b) explains the consequences of non-compliance: “If a final
order is rendered in the absence of the filing of the information from the bureau of
vital statistics, the order is voidable on a showing that a court other than the court
that rendered the order had continuing, exclusive jurisdiction.” Tex. Fam. Code
Ann. §155.104(b) (West 2014) (emphasis added). A voidable order may be set
aside only by a direct attack. See Ramsey v. Ramsey, 19 S.W.3d 548, 552 (Tex.
App.—Austin 2000, no pet.).
A judgment is “voidable” when rendered contrary to a statute, constitutional
provision or rule, but it is not “void” for lack of jurisdiction. See Mapco, Inc. v.
Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding); see also Jones v.
Tex. Dep’t of Family & Protective Servs., 400 S.W.3d 173, 179 (Tex. App.—
Austin 2013, no pet.) (stating that section 155.104(b) expressly provides that an
order is voidable, rather than void, upon the required showing that another court
had continuing, exclusive jurisdiction).
Errors that make a judgment voidable are subject to waiver and must be
preserved pursuant to Texas Rule of Appellate Procedure 33.1. See Roccaforte v.
Jefferson Cnty., 341 S.W.3d 919, 923 (Tex. 2011) (stating voidable trial court
actions must be timely brought to the court’s attention). The Mother did not raise
this challenge in the trial court, and it is not preserved.
Moreover, the Mother has not made the required showing under Family
Code section 155.104(b). Our record was supplemented with a copy of the order
issued by the 312th District Court in cause number 2005-15454. On November 28,
2005, the judge of the 312th District Court signed a default order establishing the
father’s parent-child relationship with Monica and appointing the parents joint
managing conservators with the Mother having the right to determine Monica’s
residence. The order expressly provided: “All issues relating to regular child
6
support, medical support, and retroactive support will be reserved until [the father]
is released from incarceration.” The order is clearly interlocutory, expressly
reserving issues for subsequent adjudication. A “final judgment is one which
disposes of all legal issues between all parties.” Jack B. Anglin Co. v. Tipps, 842
S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). Therefore, the 312th District
Court has not rendered a final order so as to acquire continuing, exclusive
jurisdiction. No final order or judgment from the 312th District Court was ever
provided to establish that it was the court of continuing, exclusive jurisdiction.
Thus, there was no “showing that a court other than the court that rendered the
order in this case had continuing, exclusive jurisdiction” as required to make the
judgment over Monica voidable. See Tex. Fam. Code Ann. §155.104(b) (West
2014).
We overrule the Mother’s first issue.
III. BURDEN OF PROOF AND STANDARDS OF REVIEW
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1)
of the Family Code; and (2) termination is in the best interest of the child. Tex.
Fam. Code Ann. § 161.001(1), (2) (West 2014); In re J.O.A., 283 S.W.3d 336, 344
(Tex. 2009).
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Although parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
7
not be sacrificed merely to preserve that right.”).
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code Ann. § 161.001 (West 2014); In re J.F.C., 96 S.W.3d 256, 265–66
(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 Ann. §
101.007 (West 2014); accord In re J.F.C., 96 S.W.3d at 264. This heightened
burden of proof results in a heightened standard of review. In re C.M.C., 273
S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental termination
case, we must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C.,
96 S.W.3d at 266. We assume that the fact finder resolved disputed facts in favor
of its finding if a reasonable fact finder could do so, and we disregard all evidence
that a reasonable fact finder could have disbelieved. In re J.O.A., 283 S.W.3d at
344; In re J.F.C., 96 S.W.3d at 266.
We consider and weigh all of the evidence, including disputed or conflicting
evidence, in reviewing termination findings for factual sufficiency of the evidence.
In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed
evidence that a reasonable fact finder could not have credited in favor of the
finding is so significant that a fact finder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” Id. We give due
deference to the fact finder’s findings and we cannot substitute our own judgment
for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The fact
8
finder is the sole arbiter when assessing the credibility and demeanor of witnesses.
Id. at 109.
IV. ANALYSIS
A. Unchallenged Predicate Termination Findings under Section
161.001(1)
The trial court made predicate termination findings that the Mother had
committed acts establishing the grounds set out in subsections E and O, which
provide that termination of parental rights is warranted if the factfinder finds by
clear and convincing evidence, in addition to the best-interest finding, that the
parent has:
(E) 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; [or]
...
(O) 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 who has been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child's
removal from the parent under Chapter 262 for the abuse or neglect of
the child; . . . .
Tex. Fam. Code Ann. § 161.001(1)(E), (O) (West 2014).
The Mother has not challenged the predicate termination findings under
section 161.001(1). Unchallenged predicate findings are binding on the appellate
court. See In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.]
2014, pet. denied); see also IKB Indus. (Nigeria) Ltd. v. Pro–Line Corp., 938
S.W.2d 440, 445 (Tex. 1997). These unchallenged predicate findings can therefore
support the best interest finding. See In re C.H., 89 S.W.3d at 28 (holding that the
same evidence may be probative of both section 161.001(1) predicate grounds and
9
best interest).
B. Best-Interest Finding Under Section 161.001(2)
In her second issue, the Mother asserts that the evidence is legally and
factually insufficient to support the trial court’s best-interest finding. We review
the entire record in deciding a challenge to the court’s best-interest finding. In re
E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that the
best interest of a child is served by keeping the child with his or her natural parent.
In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d at 533.
Prompt and permanent placement of the child in a safe environment is also
presumed to be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a)
(West 2014).
Courts may consider the following nonexclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding, including: the
desires of the child; the present and future physical and emotional needs of the
child; the present and future emotional and physical danger to the child; the
parental abilities of the persons seeking custody; the programs available to assist
those persons seeking custody in promoting the best interest of the child; the plans
for the child by the individuals or agency seeking custody; the stability of the home
or proposed placement; acts or omissions of the parent which may indicate the
existing parent-child relationship is not appropriate; and any excuse for the
parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
This list is not exhaustive, and evidence is not required on all of the factors to
support a finding terminating parental rights. Id.; In re D.R.A., 374 S.W.3d at 533.
1. Present and Future Physical and Emotional Danger to the Children
We begin our analysis by reviewing the evidence supporting the predicate
termination grounds found by the trial court that also support a finding that
10
termination is in the best interest of the Children. See In re C.H., 89 S.W.3d at 27.
A parent’s ability to provide a child with a safe environment is a primary
consideration in determining the child’s best interest. In re A.C., 394 S.W.3d 633,
642 (Tex. App.—Houston [1st Dist.] 2012, no pet.). The Mother has not
challenged the trial court’s finding that she engaged in conduct, or placed the
Children with persons who engaged in conduct, that endangered the Children’s
physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(E) (West
2014).
“To endanger” means to expose a child to loss or injury or to jeopardize a
child’s emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex.
1996). While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffers
injury; rather, the specific danger to the child’s well-being may be inferred from
parents’ misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,
533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738–39 (Tex. App.—Fort Worth
2004, pet. denied). The record contains the following evidence supporting the
physical and emotional danger to the Children.
a. Drug Use
The Texas Supreme Court has recognized that a parent’s use of narcotics
and its effect on her ability to parent may qualify as an endangering course of
conduct. In re J.O.A., 283 S.W.3d at 345; see also Edwards v. Tex. Dep’t of
Protective Servs., 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ)
(stating a parent’s drug use is a condition that can endanger a child’s physical or
emotional well-being and indicate instability in home environment). A parent’s
drug use also supports a finding that termination of parental rights is in the best
interest of the child. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth
2007, no pet.); see also In re M.S.L., No. 14-14-00382-CV, 2014 WL 5148157, at
11
*6 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no. pet.) (mem. op.). The
factfinder can give “great weight” to the “significant factor” of drug-related
conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.); see
also In re J.N.H., No. 02–11–00075–CV, 2011 WL 5607614, at *8 (Tex. App.—
Fort Worth Nov. 17, 2011, no pet.) (mem. op.) (considering a parent’s criminal and
drug histories in affirming a trial court’s decision that termination was in the best
interest of the child).
The record here shows that the Mother tested positive for illegal drugs while
the Children were in the Department’s care. On November 14, 2013, the trial court
ordered the Mother to undergo drug testing. Her urinalysis that day was negative,
but a hair follicle test was positive for marijuana and cocaine. Caseworker Freeman
testified that the Mother tested positive again on March 18, 2014. Freeman
acknowledged that the results for cocaine and marijuana were lower on the test
taken in March, two months before trial.
At trial, the Mother admitted she was incarcerated for possession of cocaine
from December 6, 2011 to July 19, 2013. She stated she was arrested on October
21, 2008, and originally placed on probation. The Mother subsequently violated
the terms of her probation, but she claimed that the probation violation was for
failing to pay the required fees and complete community service. The Mother
admitted using marijuana when she got out of prison, but she denied using cocaine
or methamphetamine. She acknowledged the positive drug tests for marijuana, but
she took issue with tests showing positive results for cocaine use. The Mother
testified that from November 2013 until trial she had not used any illegal drugs,
although she had earlier admitted using marijuana after her release from jail. The
trial court, as the factfinder, evaluated the credibility of the Mother’s testimony,
and we may not disturb that determination. See In re H.R.M., 209 S.W.3d at 109.
12
In addition to the Mother’s admitted use of marijuana after her release from
incarceration, the Mother’s positive drug tests are evidence that she continued to
use drugs in the face of a court order conditioning her reunification with her
Children on her ability to remain drug-free. Continued illegal drug use after a
child’s removal is conduct that jeopardizes parental rights and may be considered
as establishing an endangering course of conduct and that termination is in the best
interest of the child. Cervantes–Peterson v. Tex. Dep’t of Family & Protective
Servs., 221 S.W.3d 244, 253–54 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(en banc).
The Mother also associated with other drug users. A court should consider
whether there is a history of substance abuse by the Children’s family or others
who have access to their home in determining the best interest of the Children. See
Tex. Fam. Code Ann. § 263.307(b)(8) (West 2014). On May 30, 2013, Lester, the
father of two of the Children and husband of the Children’s caregiver, Betty, tested
positive for marijuana, cocaine, and phencyclidine. The same day, Michael,
Monica’s father, also submitted to drug testing. His hair follicle test was positive
for amphetamine, methamphetamine, and cocaine.
b. Criminal History
The Mother’s criminal records were admitted at trial. In 2008, the Mother
was arrested and charged with possession of methamphetamine and cocaine in a
drug free zone. In 2009, she was placed on deferred adjudication community
supervision. Her probation was revoked and her guilt was adjudicated on March 9,
2012. She was sentenced to two years in prison. At the time of these drug charges,
the Mother had five young Children under the age of eight. She had two more
Children before being sent to prison, and the youngest Child, Lisa, was born while
she was incarcerated. The Mother claimed she had stopped using drugs after her
13
release from incarceration.
While imprisonment alone is not a basis to terminate a parent’s rights, it is
an appropriate factor to consider because when a parent is incarcerated, he or she is
absent from the child’s daily life and unable to provide support to the child,
negatively impacting the child’s living environment and emotional well-being. In
re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.). The
trial court could reasonably have determined that the Mother’s drug use and
resulting incarceration endangered the physical and emotional well-being of the
Children and that termination is in their best interest. See In re M.R., 243 S.W.3d
807, 821 (Tex. App.—Fort Worth 2007, no pet.) (a parent’s incarceration is an
appropriate factor to consider in making a best-interest determination).
c. Domestic Violence
In considering the best interest of a child, courts should evaluate whether
there is a history of abusive or assaultive conduct by the child’s family or others
who have access to the child’s home. See Tex. Fam. Code Ann. § 263.307(b)(7)
(West 2014). As part of its investigation, the Department reviewed previous
allegations of abuse or neglect involving the Children. In 2006, the Department
was contacted about an allegation of physical abuse and neglectful supervision of
Troy, who was then two years old. It was alleged that Lester hit Troy in the head
with his closed fist during a physical alternation with the Mother. Troy was left
with a bump on the head. The report was determined “reason to believe,” but the
case was closed after determining the risk factors were controlled.2
A parent’s abusive or violent conduct can produce a home environment that
2
“Reason to believe” means that the Department has a preponderance of evidence that
abuse occurred under the Texas Family Code’s definition of abuse or neglect. See P.A.G. v. Tex.
Dep’t of Family & Protective Servs., No. 08-14-00231-CV, 2014 WL 6961758, at *15 (Tex.
App.—El Paso Dec. 9, 2014, no pet.) (mem. op.)
14
endangers a child’s well-being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). “Domestic violence, want of self-control, and
propensity for violence may be considered as evidence of endangerment.” Id. at
845–46. The factfinder may infer from past conduct endangering a child’s well-
being that similar conduct will recur if the child is returned to the parent. In re
M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). This
evidence of violence and abuse supports the trial court’s best-interest finding. See
In re J.I.T.P., 99 S.W.3d at 846 (stating domestic violence, even when the child is
not the intended victim, supports a finding that termination is in the child’s best
interest). One parent’s endangerment of a child by permitting exposure to the other
parent’s dangerous conduct is a relevant consideration in determining a child’s best
interest. See In re O.N.H., 401 S.W.3d 681, 684–85 (Tex. App.—San Antonio
2013, no pet.). The factfinder reasonably could have considered that Lester’s acts
of violence would continue in the future. See Walker v. Tex. Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied).
d. Lack of Stability
Stability and permanence are paramount in the upbringing of children. In re
T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied). Failure to
maintain stability endangers a child’s physical and emotional well-being. See In re
A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth 2013), aff’d, 437 S.W.3d 498
(Tex. 2014). Evidence of a parent’s unstable lifestyle also can support a
factfinder’s conclusion that termination of parental rights is in the child’s best
interest. In re S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no pet.). A
parent’s failure to show that she is stable enough to parent a child for any
prolonged period entitles the trial court “to determine that this pattern would likely
15
continue and that permanency could only be achieved through termination and
adoption.” In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex.
App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).
The Children have been faced with instability since before the Department’s
involvement. Their Mother had been incarcerated for almost two years by the time
the Department received the referral alleging neglectful supervision. At that time,
the Children’s primary caregiver for two years, Betty, was also incarcerated and
the Children were left unsupervised. The fathers of the Children were in and out of
prison.
The record reflects that the fathers of five of the Children engaged in
criminal behavior and the factfinder could infer the Mother’s association with them
contributed to the unsafe environment surrounding the Children.3 Monica’s father,
Michael, was convicted of aggravated sexual assault of a child on March 2, 2001,
and he was sentenced to ten years in prison. On December 14, 2011, he was
convicted of failure to comply with sex offender registration requirements and
sentenced to two years in prison. The father of two of the youngest Children,
Dwayne, had numerous convictions, including for delivery of cocaine. The most
recent of these convictions, after his Children were born, was a conviction for
aggravated robbery on August 10, 2011, for which he was sentenced to eight years
in prison. On May 6, 2010, Dwayne was convicted of unauthorized use of a motor
vehicle and sentenced to eleven months in jail.
Lester, the father of Monique and T.P.R.J. (Tanya), also had several
convictions after the birth of his Children. Lester was convicted of attempted
3
While evidence of the conduct of others is not relevant to endangerment under
subsection E, we may consider the Children’s environment in our best-interest analysis. See Tex.
Fam. Code Ann. § 263.307 (West 2014) (including the safety of the child’s environment as part
of the best-interest analysis).
16
assault on a family member, as a second offender, on October 14, 2013 and
sentenced to eight months in state jail. On May 4, 2011, Lester was convicted of
attempted burglary of a habitation and sentenced to two years in prison. Lester was
convicted of evading arrest on January 18, 2011, and sentenced to thirty days in
jail. On March 13, 2009, Lester was convicted of both assault and assault on a
family member, and sentenced to sixty days in jail in each case. On November 24,
2009, Lester was convicted of delivery of cocaine and sentenced to six months in
state jail. Lester is also the husband of Betty, who had been the Children’s
caregiver for two years before this suit was filed.
Caseworker Freeman testified that termination of the Mother’s parental
rights is in the Children’s best interest because “the mother is not stable. She’s
continued to use drugs. She doesn’t have a home. She continued to live with the
people who are the reason that her kids came into care. I believe that she still may
be living with them now. She’s just completely unstable.” Even though the Mother
had been out of jail since July, at the time of trial ten months later, the Mother still
had not established stable housing appropriate for her Children. The Mother
testified she was living with her aunt. A few months earlier, at the November
permanency hearing, the Mother testified she lived with her godmother. She
testified she recently had found a house, but it was not large enough for her
Children to live with her. In any event, the factfinder may conclude that a parent’s
changes shortly before trial are too late to have an impact on the best-interest
determination. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009,
pet. denied) (explaining that a father’s “efforts to improve his ability to effectively
parent on the eve of trial [were] not enough to overcome a decade of poor
parenting and neglect” in evaluating the best interest of the children).
The factfinder reasonably could have concluded the Mother’s lack of
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stability supported the finding that termination is in the Children’s best interest.
See In re A.C., 394 S.W.3d at 643 (considering parents’ history of homelessness in
concluding their inability to provide a safe and stable environment supported the
trial court’s finding that termination was in the child’s best interest); see also L.Z.
v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00113-CV, 2012 WL
3629435, at *10–11 (Tex. App.—Austin Aug. 23, 2012, no pet.) (mem. op.)
(holding the best-interest finding was supported where the father had a history of
instability, domestic violence, and criminal activity).
2. Non-Compliance with Services
The Mother also has not challenged the trial court’s finding that she failed to
comply with the provisions of a court order establishing the actions necessary for
her to obtain the return of the Children after their removal because of abuse or
neglect. See Tex. Fam. Code Ann. § 161.001(1)(O) (West 2014). In determining
the best interest of the Children in proceedings for termination of parental rights,
the trial court may properly consider that the parent did not comply with the court-
ordered service plan for reunification with the Children. See In re E.C.R., 402
S.W.3d at 249 (“Many of the reasons supporting termination under subsection O
also support the trial court’s best interest finding.”); see also In re E.A.F., 424
S.W.3d at 752 (considering the failure to participate in services required for
reunification in reviewing the best-interest determination).
The Mother’s family service plan was admitted in evidence. The service
plan required the Mother to complete the following tasks and services: provide
signed releases for medical information and maintain monthly contact with the
caseworker; refrain from illegal drug use and criminal activity; attend all court
hearings and meetings after release from incarceration; participate in an eight-week
parenting class and demonstrate learned behaviors; maintain safe and stable
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housing for at least six months and provide copies of the lease and utility bills;
provide documentation of sources of monthly income and maintain stable
employment for at least six months; participate in individual therapy and follow all
recommendations; complete a psychosocial assessment and follow all
recommendations; submit to random drug tests; and complete a substance abuse
assessment and follow all recommendations. In addition, the court signed
additional temporary orders requiring the Mother to complete all the services in the
Department’s plan of service to obtain the return of the Children. In addition to the
services itemized in the service plan, the court ordered the Mother to complete a
substance abuse treatment program, if recommended; and to complete a
psychological examination and follow all recommendations.
Caseworker Freeman testified that the Mother completed a psychosocial
assessment and a substance abuse assessment. Freeman testified the Mother was
required to complete outpatient drug treatment, as recommended in her assessment,
but the Mother failed to show up. As a result of the Mother’s psychosocial
assessment, she was required to complete individual therapy. Freeman testified the
Mother only attended therapy sporadically. Freeman stated the Mother did not
complete her eight-week parenting class. In addition, the Mother did not provide
evidence that she had a stable residence for six months. Freeman testified that she
had been told the Mother got a job at Popeye’s, but she failed to provide paycheck
stubs as required by her service plan. Freeman testified the Mother had moved and
she did not know where the Mother was living.
The Mother acknowledged that she had been given a family plan of service.
Although she first claimed she had completed the services, the Mother later
admitted that she did not complete the tasks set out in the plan. She acknowledged
that she violated her family service plan by testing positive for illegal drugs. She
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admitted she did not complete drug abuse treatment or individual therapy. She
testified that she currently was working at Igloo and in home health care. She had
been working in health care since October 2013, and she had been working at Igloo
since January 2014. She stated she had earlier worked for Popeye’s, but quit
because Igloo paid better. The Mother testified that she was currently living with
her aunt, and she had resided there for seven months. She testified she had found a
house, but the caseworker had told her she needed a larger residence if she wanted
the Children to live there.
The undisputed evidence that the Mother failed to complete parenting
classes, participate in individual therapy, and undergo drug abuse treatment
demonstrates that the Mother did not prioritize improving her ability to parent the
Children so that they could be returned to her care. A parent’s efforts to improve or
enhance parenting skills are relevant in determining whether a parent’s conduct
results in endangerment. See In re D.T., 34 S.W.3d 625, 640 (Tex. App.—Fort
Worth 2000, pet. denied). The willingness and ability of the Children’s family to
seek out and complete counseling services and effect positive changes should be
considered in evaluating the Children’s best interest. See Tex. Fam. Code Ann. §
263.307(b)(10), (11) (West 2014).
The Mother’s failure to make use of the rehabilitative services offered by the
Department supports the trial court’s best-interest finding. Although the Mother
was provided an opportunity to address her drug use and parenting through her
family service plan, she failed to do so. The trial court could infer that the Mother’s
failure to address her involvement with illegal drugs would lead to continued drug
use. See In re J.D., 436 S.W.3d at 118 (stating a fact finder may infer that past
conduct endangering the well-being of a child may recur in the future if the child is
returned to the parent).
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3. Children’s Desires, Needs, and Proposed Placement
Some of the Children were very young at the time of trial and our record
contains no evidence of their desires. When a child is too young to express his
desires, the factfinder may consider that the child has bonded with the foster
family, is well cared for by them, and has spent minimal time with a parent. In re
J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The Advocate testified that the Children love their Mother, but they do not
ask to see her or ask if they can go home to her. The Advocate said only Troy ever
mentioned going home. The Advocate testified the baby, Lisa, has special needs.
She has syphilis, brain damage, and hearing loss. Lisa, who was almost two at the
time of trial, still drank from a bottle and could not eat solid food. In the
Advocate’s opinion, the Mother would not be able to take care of Lisa. The
Advocate acknowledged that it may be difficult to find an adoptive home for Lisa.
Although the Children were not all placed together, the foster homes worked
together to make sure the siblings were able to visit each other. In the Advocate’s
opinion, it is in the best interest of the Children to terminate the Mother’s parental
rights.
Caseworker Freeman testified the Children were placed in four different
foster homes. Although Monica was placed in an emergency shelter when she first
entered the Department’s care, she was moved, with the trial court’s approval, to a
foster home with one of her siblings. Freeman testified Monica, who was then
fourteen, wants to remain in her current placement. At times in the past, Monica
had stated she wanted to be with her Mother. All the Children are doing well in
foster care. The Advocate testified the girls were “doing really well in school,
great.” The Advocate’s report stated the Children had monthly visits with each
21
other and that all their needs were being met. Troy was being evaluated for a
learning disorder. He also had received counseling and medication to treat an
adjustment disorder.
The Children’s foster homes were not adoptive homes. The Department has
made progress in its efforts to find permanent placements for the Children,
however. There is a caregiver who wants to adopt Lisa and Bobby, but she was not
an approved adoptive home at the time of trial. A paternal grandmother wants to
adopt Monique, and a home study on her home has been approved. The
Department was in the process of requesting that Monique be moved to her
grandmother’s residence.
The Mother argues that termination is not in the Children’s best interest
because the foster homes in which the Children are placed are not adoptive homes
and adoptive homes have not been located. Plans for adoption are relevant, but
evidence about definitive plans are not dispositive in a parental termination case
filed by the State. In re C.H., 89 S.W.3d at 28.
4. Parenting Abilities
The factfinder may consider a parent’s parenting skills in a best-interest
analysis. See In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no
pet.); see also Tex. Fam. Code Ann. § 263.307(b)(12) (West 2014). As part of our
review of a finding that termination is in the Children’s best interest, we may also
consider the Mother’s past performance as a parent in evaluating her fitness to
provide for the Children. See In re C.H., 89 S.W.3d at 28. Although evidence of
past misconduct or neglect alone may not be sufficient to show present unfitness, a
fact finder may measure a parent’s future conduct by her past conduct and
determine that it is in a child’s best interest to terminate her parental rights. See In
re A.N.D., No. 02-12-00394-CV, 2013 WL 362753, at *2 (Tex. App.—Fort Worth
22
Jan. 31, 2013, no pet.) (mem. op.).
The Mother had not parented her Children during the two-year period
preceding this case. She left the Children in the care of Betty, the wife of the father
of two of the Children, Lester. Lester has a criminal and drug history and was
investigated by the Department for injuring Troy during a domestic violence
incident. During the Department’s investigation of the allegations of neglectful
supervision in this case, the investigator interviewed Tina, who was then almost
eleven years old. Tina told the investigator that the Children had been with Betty
for about two years and Betty was more of a mother to them than the Mother. Tina
also said that after Betty’s arrest, they were left with a seventeen-year-old and an
eighteen-year-old, and there was insufficient food in the house. In addition, Lisa
needed medication to treat seizures. Troy, who was then about ten years old, also
said that the Children did not have enough food. Troy also explained that Betty
was in jail for attempting to run down her husband, Lester, with a car.
Caseworker Freeman testified that the Mother had been inappropriate with
the Children during her visits. She heard the Mother tell the Children that they
could come home to her. The Children would become upset when they later could
not go home with the Mother. In addition, Freeman testified the Mother accepted
money from two of the Children. Freeman said Monica gave the Mother $10
during a visit after asking if she needed money. In addition, the Mother often
informed the Department she would bring food to the visits, but she would either
come without food or bring just a few snacks that were not sufficient for all the
Children. The Mother also spent a lot of time on the phone during her visits with
the Children.
The Mother admitted she had not complied with her service plan. The
Mother did not complete the required parenting classes. In addition, caseworker
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Freeman testified she had recently asked the court to stop the Mother’s visits with
the Children because she tested positive on her last drug test. The caseworker
testified that only the three oldest Children appeared to have bonded with the
Mother. She testified that in her opinion, it is in the Children’s best interest not to
see the Mother.
The Mother testified she has a good relationship with her Children and they
are all bonded with her. She explained that the little ones played with toys during
her visits. She said that at the end of her visits, everyone was sad and crying. The
Mother said the Children would be sad if they were not allowed to visit her. The
Mother testified Monica tried to give her $10 once, but she refused the money. She
acknowledged that the caseworker told her not to tell the Children they were
coming home to her. She explained that instead she says she prays the Children
come home. The Mother denied that she failed to bring sufficient food to her visits
with the Children. She testified she brought pizza and there was enough for even
the caseworker to eat.
The Advocate’s report states that the Mother refused to recognize that Lisa
has special needs, despite her loss of vision and hearing, seizures, and her inability
to eat solid food. In the Advocate’s opinion, the Mother lacked the ability to care
for Lisa’s special needs. The Advocate’s report stated that in her visits, the Mother
tended “to treat her children like they are her friends, and she has often made
inappropriate comments to them regarding coming home soon.”
Caring for eight children under the age of fourteen, some with special needs,
is challenging. It is appropriate to take into account not only the Children’s ages,
but also any physical or mental vulnerabilities they may have in considering their
best interest. See Tex. Fam. Code Ann. § 263.307(b)(1) (West 2014). The Mother’s
failure to successfully complete the court-ordered services demonstrates her poor
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choices as a parent. A mother’s love for her children will not obviate the fact that
she is unable to provide her children with a safe, stable home. See In re K.C., 88
S.W.3d 277, 279 (Tex. App.—San Antonio 2002, pet. denied).
The trial court could reasonably have considered that the Mother
demonstrated limited parenting ability. The lack of evidence that the Mother could
parent the Children properly supports the best-interest finding. See H.N. v. Dep’t of
Family & Protective Servs., 397 S.W.3d 802, 814 (Tex. App.—El Paso 2013, no
pet.) (stating the father’s failure to demonstrate his parenting abilities supported the
finding that termination was in the best interest of the child).
5. Summary
In sum, the record contains sufficient evidence to support the best-interest
finding based on the Mother’s lack of a safe, stable home environment after being
incarcerated for nearly two years, failure to complete her court-ordered services,
and continued drug use, even while these proceedings were pending. It was within
the trial court’s discretion to determine the weight and credibility of the Mother’s
testimony. In re K.A.S., 131 S.W.3d 215, 229–30 (Tex. App.—Fort Worth 2004,
pet. denied). The factfinder resolved all credibility issues and we may not disturb
that determination. See In re H.R.M., 209 S.W.3d at 108; In re L.M.I., 119 S.W.3d
707, 712 (Tex. 2003).
Viewing all the evidence in the light most favorable to the judgment, we
conclude that a factfinder could have formed a firm belief or conviction that
termination of the Mother’s parental rights is in the Children’s best interest. See
J.F.C., 96 S.W.3d at 265–66. In light of the entire record, the disputed evidence
that a reasonable factfinder could not have credited in favor of the best-interest
finding is not so significant that a fact finder could not reasonably have formed a
firm belief or conviction that termination of the Mother’s parental rights is in the
25
Children’s best interest. See In re H.R.M., 209 S.W.3d at 108. After considering
the relevant factors under the appropriate standards of review, we hold the
evidence is legally and factually sufficient to support the trial court’s finding that
termination of the parent-child relationship is in the Children’s best interest. We
therefore overrule the Mother’s second issue.
V. CONCLUSION
We have overruled the Mother’s jurisdictional challenge concerning Monica,
the oldest child, and we have determined that legally and factually sufficient
evidence supports the trial court’s finding that termination of the Mother’s parental
rights is in the best interest of the Children. Therefore, the trial court’s judgment is
affirmed.
/s/ John Donovan
Justice
Panel consists of Justices Christopher, Donovan, and Wise. (Christopher, J.,
concurring).
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