in the Interest of A.H.A., M.O.A., D.J.A., E.A.A.A., J.J.A.A., L.E.F., R.E.F., and J.C.R., Children ( 2012 )

Affirmed and Memorandum Opinion filed April 26, 2012.
In The
Fourteenth Court of Appeals
NO. 14-12-00022-CV
IN THE INTEREST OF A.H.A., M.O.A., D.J.A., E.A.A.A., J.J.A.A., L.E.F., R.E.F.,
AND J.C.R., CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2010-07077J
MEMORANDUM OPINION
After a bench trial, the trial court signed a decree terminating Mother‘s parental
rights to three of her eight children, and appointing the Department of Family and
Protective Services as the sole managing conservator of those three children. The trial
court also appointed the biological father of the other five children sole managing
conservator of those children, but failed to appoint Mother possessory conservator of
those children. In this accelerated appeal,1 Mother challenges the order (1) terminating
her parental rights to three of the children and (2) appointing the biological father the sole
managing conservator, and failing to appoint Mother possessory conservator, of the other
five children. We affirm.
1
See TEX. FAM. CODE ANN. § 263.405 (West Supp. 2011).
BACKGROUND
Mother was born in El Salvador in 1975. She became pregnant and miscarried at
age fourteen. Mother emigrated to the United States in 1992 at age sixteen and worked
as a waitress in a series of night clubs because she did not have any work skills or legal
documents. In 1994, she met and moved in with Carlos. Mother had three children with
Carlos. Carlos was physically abusive and he frequently used cocaine, although he never
induced her to use drugs. In 1998, Carlos and his mistress beat Mother and threw her out
of the home. Carlos threatened to kill Mother if she contacted him or attempted to see
their children. Mother has not seen those children since they were toddlers.
After finding employment in a night club, Mother met and moved in with Milton,
who was jealous and threatened to hurt her if she went outside the home without him.
There were multiple incidents of domestic violence, and Milton was arrested on three
occasions for spousal battery. Mother had five children with Milton: A.H.A. in 1999,
M.O.A. in 2000, D.J.A. in 2001, E.A.A.A. in 2002, and J.J.A.A in 2004. Milton left
Mother when she was pregnant with J.J.A.A.
In 2005, Mother met and moved in with Leonel. Mother had two children with
Leonel: L.E.F. in 2006, and R.E.F in 2008. Leonel moved to Tennessee where he found
employment, but did not include Mother or their children in his plans to relocate.
In 2008, Mother became involved with Juan. Mother had one son with Juan:
J.C.R.. in 2009. There were incidents of domestic violence, and Juan introduced Mother
to the use of cocaine. In 2010, Juan hit A.H.A. several times when A.H.A. tried to
intervene on behalf of Mother during a dispute, and M.O.A. called the police. In June
2010, Juan was incarcerated for injury to a child.
Mother was home at 2:00 a.m. on October 24, 2010. Mother, who was thirty-nine
weeks pregnant with her second child with Juan, had drunk six beers and used cocaine.
Mother began to have vaginal bleeding, and at 7:00 a.m., called EMS, and was taken to
the hospital. The child was stillborn. Mother tested positive for cocaine and alcohol.
2
That same day, the Department received a report of neglectful supervision of eight
children ranging in age from one year old to eleven years old. It was not known who was
watching the eight children while Mother was as the hospital.
The Department interviewed M.O.A., D.J.A., E.A.A.A., and J.J.A.A. on October
25, 2010. They told the Department investigator that there were times they did not have
food to eat and had to get food from neighbors and school. They also told the
investigator about the domestic violence between Mother and Juan. When A.H.A. was
interviewed, he denied not having food at home. A.H.A. also stated that Mother had been
in a domestic violence dispute with Juan the previous year. A.H.A. said that when he
tried to help Mother, Juan hit him several times. M.O.A. called the police, and A.H.A.
had not seen Juan since then.
The Department‘s investigation noted two prior reports involving Mother. First, on
March 26, 2009, the Department received a report of neglectful supervision of Mother‘s
seven children. The report stated that Mother was not providing adequate supervision,
―leaving them free to injure each other daily.‖ It was found in the investigation that the
children did not attend school regularly and their attendance was ―very poor.‖ There
were also concerns that the children did not have enough to eat or adequate clothing. The
case was given a disposition of ―Unable to Locate the mother.‖ Second, on October 21,
2009, the Department received another report of physical neglect and neglectful
supervision. It was reported that the children were left home alone frequently, the home
had been without electricity for four months, and the children had been going through
garbage cans looking for food. The case was given a disposition of ―ruled out and
closed.‖
On October 28, 2010, the Department filed an original petition for protection of a
child, for conservatorship, and termination in suit a affecting the parent-child
relationship, requesting that it be appointed temporary sole managing conservator of the
children without notice or an adversary hearing, and that emergency orders be entered.
3
On that same day, the trial court signed an order for protection of a child in an
emergency, naming the Department temporary sole managing conservator of the children
and setting the case for a full adversary hearing on November 11, 2010.
Following the full adversary hearing on November, 11, 2010, the trial court signed
temporary orders, appointing the Department temporary managing conservator of the
children and ordering Mother to comply with each requirement set out in the
Department‘s service plan, and setting a status hearing on December 21, 2010. Mother
attended the hearing, but the fathers did not—Leonel‘s and Milton‘s locations were not
known, and Juan was in the Harris County Jail.
On November 22, 2010, Mother submitted to a Family Evaluation at the
Children‘s Crisis Care Center. Mother stated that she started drinking at age 22, and she
―drank throughout her multiple pregnancies,‖ and, at the time of the evaluation, she drank
eight to ten beers on Fridays and Saturdays. Mother stated that Milton exposed her to
cocaine, but she began to use it with Juan in the summer of 2009. Juan would either buy
the cocaine or send her to buy it. Mother stated that, on average, she would snort two
little fingernails worth of cocaine on most weekends. Since Juan‘s incarceration, Mother
had continued her weekly use of cocaine, with her supplier giving to her for free.
Mother stated that she had arranged for her eight children to be supervised by a
neighbor before she was taken to the hospital on October 24, 2010. Mother ―readily
admit[ted] to using alcohol and cocaine throughout her recent pregnancy,‖ but did not
believe that her substance abuse had been harmful to the stillborn child.
Mother did not believe that allowing her children to play outside unsupervised was
neglectful, as long as they remained on the apartment complex premises. Mother had
been living in a one bedroom apartment for over ten years with her eight children. Until
his arrest and incarceration in June 2010, Juan had also been living there. Mother stated
that she had moved to a two bedroom apartment, subleasing the second bedroom to a
friend.
4
Mother had been working for a landscaper for three months, earning $400 a week
by distributing flyers. Mother stated that she relied on $1,202 per month in food stamps
to support her family. Mother stated that did her best to keep food in the house, but
admitted that ―rations tend to run very low towards the end of the month.‖
It was reported that A.H.A, who was in the fifth grade, had failed the second grade
and had ongoing academic and behavioral problems at school. M.O.A., who was in the
fourth grade, had failed the second grade and experienced ongoing academic problems at
school. D.J.A., who was in the third grade, had failed the first grade and had ongoing
academic and behavioral problems at school. E.A.A.A., having failed the first grade the
previous year, was repeating the first grade and had ongoing academic and behavioral
problems at school. J.J.A.A., who was in the first grade, had ongoing academic and
behavioral problems at school. L.E.F., who was four years old, had not attended school
prior to placement and was attending pre-kindergarten classes.
After a status hearing on December 21, 2010, the trial court signed an order,
providing that ―Mother ordered by separate order to submit to hair follicle & U/A today,‖
and setting the initial permanency hearing for April 26, 2011. The trial court also signed
additional temporary orders to obtain return of the children, which required, among other
things, that Mother complete a drug and alcohol assessment and follow all
recommendations of the drug and alcohol assessment; complete a substance abuse
treatment program, ―if recommended by drug assessment‖; complete random drug tests,
which may include a hair follicle test; and remain drug-free.
On April 26, 2011, the Department filed a permanency plan and permanency
progress report. According to the report, Milton and Leonel had not been located by the
Department. Mother had completed parenting classes and had given a copy of the
certificate to the caseworker. Mother had also given a copy of her lease and paycheck
stubs to the caseworker, and had completed a drug and alcohol assessment. The report
noted that the children had been in foster home placement since October 28, 2010, and
5
indicated that the goal was family reunification. After a permanency hearing on April 26,
2011, the trial court signed a permanency hearing order, ordering that all previous orders
issued by the court continue without modification, and set another permanency hearing
for August 23, 2011.
On August 19, 2011, the Department filed a permanency plan and permanency
progress report. According to the report, Milton had been located in Memphis,
Tennessee, and he was working on his family service plan in Tennessee and had enrolled
in parenting classes. The Department had referred Mother to individual therapy, a drug
and alcohol assessment, and substance abuse therapy. The report indicated that the
children were still in foster placement, and the goal was family reunification. Mother and
Milton appeared at the August 19, 2011 permanency hearing. The trial court signed an
order that all previous orders issued by the court continue without modification and set a
special permanency hearing for September 13, 2011.
On October 28, 2011, the trial court held a bench trial on the Department‘s suit to
terminate and suit affecting the parent-child relationship. At trial, Shelena Curry, a
Department caseworker, testified that the children came into the Department‘s care after
Mother gave birth to a stillborn baby and tested positive for drugs. Curry testified that
Mother was ordered in her family service plan to participate in a drug and alcohol
assessment and follow all recommendations, participate in UAs, obtain and maintain
housing, obtain and maintain employment, participate and complete parenting classes,
participate in individual therapy to address domestic violence and grief, participate in life
skill classes, and participate in an English as a second language class.
Curry testified that Mother had not completed individual therapy and had not
followed the recommendation from her drug and alcohol assessment, which included
random UAs, complete twelve steps, and to stay sober. Curry testified that Mother
participated in drug and alcohol individual therapy, but one of the requirements was that
she continue to test negative. Instead, Mother tested positive throughout the case, and
6
never tested negative on her hair follicle. Curry testified that Mother tried to get into the
twelve-step program, but had not been able to accomplish that through no fault of her
own. Curry also agreed that Mother had been willing to do whatever it takes to get off
drugs. However, Mother had a relapse and used cocaine in August 2011. Curry further
testified that the school reported that the children would come to school hungry and
would ask for extra food to take home. Based on Curry‘s knowledge, the children were
not being fed. In August 2011, the Department‘s goal changed from family reunification
to termination.
Curry testified that Mother had visited the children once a month for two hours at
the CPS office throughout the case, which was all Mother had been allowed. The visits
were ―normal,‖ and she brought the children ―something to eat.‖ Curry testified that the
children had bonded with Mother and the children told Curry that they want to be with
Mother. Curry testified that Mother adores the children.
Mother admitted that her last child was stillborn because of her drug use. Mother
testified that she first started taking drugs two years earlier because ―it would give [her]
strength because the father of the children would beat [her] up.‖ Mother further stated
that the father would beat her up so that she would take drugs. Mother testified that she
took drugs at parties, leaving her children with someone else. Mother admitted that she
took drugs after CPS had taken her children because she felt ―lonely without [her]
children.‖ Mother got the drugs from a friend at a party. Until that time, Mother had
been complying with the family service plan, and CPS had told her she was in
compliance with the family service plan. Mother testified that she never took drugs in
front of the children.
Mother testified that she made $400 per week cleaning houses, but she was not
receiving food stamps because the children were not with her. Mother believed that $400
per week with benefits would be sufficient to support her children. Mother leased a three
bedroom apartment, which CPS approved.
7
With regard to the father of the five older children—A.H.A., M.O.A., D.J.A.,
E.A.A.A., and J.J.A.A.—Curry testified that Milton was identified by DNA testing as the
father of those children. Curry testified that it took some time to locate Milton, but he
came forward and wanted the children. The Department was not seeking termination of
his parental rights because he was not the reason the children were removed. Milton took
the children back to Tennessee with him a week before trial on the trial court‘s order.
Curry stated that, prior to the court‘s allowing Milton to take the children with him to
Tennessee, he had been driving down from Tennessee continuously to visit the children.
The children had bonded with their father and were comfortable with him.
Mother testified that Milton beat her, and she filed a report on three occasions.
Mother further testified that Milton burned A.H.A.‘s foot for tearing a work permit.
Mother testified that the children called her every day and said they wanted to ―come
here.‖ According to Mother, A.H.A. said that his father took him to clean offices at night
and they went to the church to beg for money.
When Curry talked to A.H.A., he did not tell her that his father made him clean
offices at night or that the children were begging for money at a church. A.H.A. told
Curry that he was happy and he was okay. A.H.A. told Curry that no one was yelling at
or hitting him. A.H.A. also said that he was eating and taking baths.
As to the three youngest children—L.E.F., R.E.F., and J.C.R.—Curry testified that
Mother had given the Department the names of their alleged fathers, but the Department
had not been able to locate them and, therefore, those children did not have identifiable
fathers. Mother told the Department that Leonel could have gone back to El Salvador.
Juan was personally served with the petition in jail, but he did not come forward or
participate in the case, and the Department had not been able to contact him.
At the end of the October 28, 2011 trial, the trial court announced that it was
terminating Mother‘s parental rights to L.E.F., R.E.F., and J.R.C. under Sections
8
161.001(1)(E) and (P) of the Texas Family Code.2 The trial court also announced that it
was terminating the rights of the unknown and alleged fathers as to L.E.F., R.E.F., and
J.R.C. The trial court withheld a finding on best interest until ―I understand what the
placement circumstances are,‖ and recessed the trial.
On December 1, 2011, the trial court resumed the trial and found that it was the
children‘s best interest to terminate Mother‘s rights to L.E.F., R.E.F., and J.R.C. On
December 20, 2011, the trial court ordered Mother‘s parental rights terminated as to
L.E.F., R.E.F., and J.C.R. under sections 161.001(1)(E) and (P). The trial court also
ordered Leonel‘s rights to L.E.F. and R.E.F., if any, terminated, Juan‘s rights to J.C.R., if
any, terminated, and the unknown father‘s rights to those three children, if any,
terminated. The trial court appointed the Department sole managing conservator of
L.E.F., REF, and JCR. The trial court appointed Milton sole managing conservator of
A.H.A., M.O.A., D.J.A., E.A.A.A., and J.J.A.A., but did not appoint Mother possessory
conservator of those children.
TERMINATION
In her first three issues, Mother challenges the legal and factual sufficiency of the
evidence supporting the trial court‘s findings of termination under sections 161.001(E)
and (P) and its finding that termination is in the best interest of the children.
Standard of Review
Involuntary termination of parental rights implicates fundamental constitutional
rights. In re G.M., 596 S.W.2d 846, 846 (Tex. 1980). The termination of the natural
right between parents and children ―is complete, final and irrevocable. Id. Therefore,
termination proceedings are strictly scrutinized. Id.
Parental rights can be terminated only upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by Section 161.001(1) of the
2
See TEX. FAM. CODE ANN. § 161.001(1)(E), (P) (West Supp. 2011).
9
Family Code, and (2) termination is in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Clear and
convincing evidence is ―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 2008).
In reviewing legal sufficiency in a parental termination case, we must consider all
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 256, 266 (Tex. 2002). 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 244; In re J.F.C., 96 S.W.3d at 266.
In reviewing termination findings for factual sufficiency, we consider and weigh
all of the evidence. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. But
we give due deference to the fact finder‘s resolution of factual questions. In re C.H., 89
S.W.3d 17, 27 (Tex. 2002). We then determine whether the evidence is such that a fact
finder could reasonably form a firm belief or conviction about the truth of the allegations
against the parent. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266.
―Only one predicate finding under section 161.001 is necessary to support a
judgment of termination when there is also a finding that termination is in the child‘s best
interest.‖ In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Section 161.001(1)(E)
In her first issue, Mother claims the evidence is legally and factually insufficient to
support the trial court‘s finding of termination under section 161.001(E). Pursuant to
section 161.001(1)(E), the court may order termination of the parent-child relationship if
the court finds by clear and convincing evidence that the parent has ―engaged in conduct
or knowingly placed the child with persons who engaged in conduct which endangers the
10
physical or emotional well being of the child.‖ TEX. FAM. CODE ANN. § 161.001(1)(E).
Under subsection E, the cause of the endangerment must be the parent‘s conduct and
must be the result of a conscious course of conduct rather than a single act or omission.
In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Endangerment can be exhibited by both actions and failures to act. Id. It is not necessary
that the parent‘s conduct be directed at the child or that the child actually be injured;
rather, a child is endangered when the environment or the parent‘s course of conduct
creates a potential for danger of which the parent is aware but disregards. Id.
It is well settled that ―a parent‘s use of narcotics and its effect on his or 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 In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet.
denied) (―Drug use and its effect on a parent‘s ability to parent may establish an
endangering course of conduct.‖); Toliver v. Tex. Dep’t of Family & Protective Servs.,
217 S.W.3d 85, 98 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (―Narcotics use, in
some circumstances, may give rise to termination under section 161.001(1)(E). . . .
Evidence of narcotics use and its effect on a parent‘s life and her ability to parent may
establish that the parent has engaged in an ‗endangering course of conduct.‘‖); In re U.P.,
105 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)
(―Endangerment may include evidence of drug addiction and its effect on a parent‘s life
and his ability to parent.‖).
Moreover, ―[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, supports a finding that
the parent engaged in conduct that endangered the child‘s physical or emotional well-
being.‖ In re M.E.-M.N., 342 S.W.3d at 263 (internal quotations omitted) (citing In re
J.A.G., No. 02-10-00002-CV, 2010 WL 4539442, at *1 (Tex. App.—Fort Worth Nov. 10,
2010, no pet.) (mem. op.)); see also In re S.K.A., 236 S.W.3d 875, 901 (Tex. App.—
Texarkana 2007) (―Continued narcotic use after the children‘s removal is conduct that
11
jeopardizes parental rights and may be considered as establishing an endangering course
of conduct.‖), pet. denied, 260 S.W.3d 463 (Tex. 2008) (per curiam).
Mother testified at trial in October 2011 that she had started using drugs two years
earlier when Juan gave her the drugs. Mother explained that she started taking drugs
because ―it would give [her] strength because the father of the children would beat [her]
up.‖ Mother stated that she never took drugs in front of the children but that she took
drugs at parties, leaving her children with someone else. Mother told the CPS
investigator that Juan would either buy the cocaine or send her to buy it. Mother further
told the investigator that, on average, she would snort two little fingernails worth of
cocaine on most weekends. Since Juan‘s incarceration, Mother had continued her weekly
use of cocaine. Mother stated that her supplier had been giving her cocaine for free.
Mother further ―readily admit[ted] to using alcohol and cocaine throughout her recent
pregnancy,‖ but did not believe that her substance abuse was harmful to the stillborn
child. At trial, however, Mother admitted that her drug use caused her last child to be
stillborn.
Curry testified that Mother had tested positive throughout the case; that is, Mother
had never tested negative on her hair follicle. The amount of drugs in the hair follicle
decreases over time. However, the amount increased in August 2011—after CPS had
taken the children. At trial, Mother admitted that she took drugs after CPS had taken her
children because she felt ―lonely without [her] children.‖ Mother got the drugs from a
friend at a party. Until that time, Mother had been complying with the family service
plan and CPS had told her she was in compliance with the family service plan.
In addition to Mother‘s drug use, Curry testified that Mother‘s children were being
neglected. Curry testified that the school reported that ―the children would come to
school hungry. . . . They would ask for extra food to take home.‖ Curry stated, based on
her knowledge, that the children were not being fed. The Department‘s report stated that
four of the children ―disclosed times where they did not have food to eat. They had to get
12
food from the neighbors and the school,‖ although A.H.A. denied not having food at
home and having to obtain food from school and neighbors.
The Department‘s report similarly stated that on March 26, 2009, the Department
had received a report that the mother was not providing adequate supervision—―leaving
[the children] free to injure each other daily.‖3 There were also concerns that the children
did not have enough food to eat and adequate clothing. The report also stated that
previously on October 21, 2009, the children had been left home alone on a ―frequent
basis,‖ and they had been going through garbage cans looking for food. In the CPS
investigation, Mother stated that she did her best to keep food in the house, but admitted
that ―rations tend to run very low towards the end of the month.‖ The Department‘s
report also noted in the CPS investigation that four of the children had failed one grade
and had ongoing academic and behavioral problems.
The fact finder could consider prior CPS history of neglect of, and lack of food
for, the children, and Mother‘s use of alcohol during all of her pregnancies, in addition to
her drug use resulting in the stillbirth of her last child, and her use of cocaine after the
Department had removed the children from her. See In re C.L.S., No. 14-06-00762-CV,
2007 WL 2447308, at *6 (Tex. App.—Houston [14th Dist.] Aug. 30, 2007, no pet.)
(mem. op.) (noting that the jury could properly consider the mother‘s drug history,
housing instability, and continued alcohol abuse as part of a continuing course of conduct
endangering the child‘s physical and emotional well-being). The fact finder was also
entitled to consider that Mother returned to illegal drugs repeatedly to cope with stress or
depression. Moreover, the Department was not required to prove that Mother used drugs
in front of her children to support a finding of termination under section 161.001(1)(E).
See id. (even assuming the truth of the assertion that the child was not present during any
3
Relying on Curry‘s testimony that Mother had no CPS history, Mother asserts that there is no
evidence of any prior CPS involvement. However, the Department‘s report noted two prior involvements
with CPS in March 2009 and October 2009. Though they were given dispositions of ―Unable to Locate
the mother‖ and ―ruled out and closed,‖ respectively, they show nonetheless that there were prior
concerns of neglect.
13
of mother‘s drug-related activities, the Department was not required to prove that the
child was present or even born at the time of the misconduct).
We conclude that the trial court could have formed a firm belief or conviction that
termination of Mother‘s rights to L.E.F., R.E.F., and J.C.R. is warranted under section
161.001(1)(E). We overrule Mother‘s first issue.4
Best Interest
In her third issue, Mother claims the evidence is legally and factually insufficient
to support the trial court‘s finding that termination is in the best interest of the children.
There is a strong presumption that the best interest of the child is served by keeping the
child with the natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam);
In re U.P., 105 S.W.3d at 230. The Department has the burden to rebut this presumption.
In re U.P., 105 S.W.3d at 230.
In determining whether termination is in the best interest of the child, we may
consider (1) the child‘s desires; (2) the present and future physical and emotional needs
of the child; (3) the present and future emotional and physical danger to the child; (4) the
parental abilities of the person seeking custody; (5) the programs available to assist those
persons seeking custody in promoting the best interest of the child; (6) plans for the child
by the individuals or agency seeking custody; (7) the stability of the home or proposed
placement; (8) acts or omissions of the parent that indicate the existing parent-child
relationship is not appropriate; and (9) any excuse for the parent‘s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley factors are not
exhaustive, nor must all the factors be proved as a condition precedent to terminate
4
Because we have found that the evidence is sufficient to support the trial court‘s finding of
termination under subsection (E), we need not address Mother‘s second issue that the evidence is not
legally and factually sufficient to support the finding of termination under subsection (P). See In re A.V.,
113 S.W.3d at 362. Moreover, we need not address the Department‘s cross-point requesting that we
affirm the court‘s judgment on termination on subsections (O) and (R) of section 161.001(1)—grounds on
which the trial court did not order termination—in the event that we were to find the evidence legally and
factually insufficient to support termination under either subsection (E) or (P).
14
parental rights. In re C.H., 89 S.W.3d at 27. ―The absence of evidence about some of
these considerations would not preclude a factfinder from reasonably forming a strong
conviction or belief that termination is in the child‘s best interest, particularly if the
evidence were undisputed that the parental relationship endangered the safety of the
child.‖ Id.
Evidence supporting termination under section 161.001(1)(E) supports a finding
that termination is in the best interest of the children. See id. at 28 (―While it is true that
proof of acts or omissions under section 161.001(1) does not relieve the petitioner from
proving the best interest of the child, the same evidence may be probative of both
issues.‖). The evidence showed that Mother had used cocaine in her most recent
pregnancy, resulting in the stillbirth of that baby. Although Mother claimed that she did
not use drugs in front of her children, she left them with other people while she was at
parties using cocaine. Juan would send her to the dealer to obtain cocaine, and even after
Juan‘s incarceration, Mother obtained cocaine for free from the dealer. The evidence
further showed that the children did not have adequate food such that they were searching
garbage cans for food. Mother admitted that ―rations‖ ran low at the end of the month.
Four out of five of Mother‘s school age children had repeated a grade and all five had
ongoing academic and behavior problems at school.
For cases in which the Department or another government agency is the petitioner,
Section 263.307(a) of the Texas Family Code provides that ―the prompt and permanent
placement of the child in a safe environment is presumed to be in the child‘s best
interest.‖ TEX. FAM. CODE ANN. § 263.307(a) (West 2008). Section 263.307(b) lists the
factors to consider in determining whether a parent is ―willing to provide the child with a
safe environment.‖ Id. § 263.307(b). Those factors include: (1) the child‘s age and
physical and mental vulnerabilities; (2) the frequency and nature of out-of-home
placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4)
whether the child has been the victim of repeated harm after the initial report and
15
intervention by the department or other agency; (5) whether the child is fearful of living
in or returning to the child‘s home; (6) the results of psychiatric, psychological, or
developmental evaluations of the child, the child‘s parents, other family members, or
others who have access to the child‘s home; (7) whether there is some history of abusive
or assaultive conduct by the child‘s family or others who have access to the child‘s home;
(9) whether the perpetrator of the harm is identified; (10) the willingness and ability of
the child‘s family to seek out, accept, and complete counseling services and to cooperate
with and facilitate an appropriate agency‘s close supervision; (11) the willingness and
ability of the child‘s family to effect positive environmental and personal changes within
a reasonable period of time; (12) whether the child‘s family demonstrates adequate
parenting skills, including providing the child and other children under the family‘s care
with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and
appropriate discipline consistent with the child‘s physical and psychological
development; (C) guidance and supervision consistent with the child‘s safety; (D) a safe
physical home environment; (E) protection from repeated exposure to violence even
though the violence may not be directed at the child; and (F) an understanding of the
child‘s needs and capabilities; and (13) whether an adequate social support system
consisting of an extended family and friends is available to the child. Id.
The first, third, seventh, eleventh, and twelfth statutory factors are relevant to the
best-interest inquiry. Mother‘s three youngest children, L.E.R., R.E.F., and J.C.R.,
ranged in age from 16 months old to four years old when the Department took them from
Mother. The three youngest were completely dependent upon Mother for their care. The
evidence showed that Mother used cocaine on weekends on a regular basis, leaving her
children to the care of others while she used cocaine at parties. Mother also drank
throughout all of her pregnancies. Mother remained in an abusive relationship with Juan,
who hit A.H.A., resulting in Juan‘s incarceration. Even though Mother claimed that
using cocaine gave her strength in her abusive relationship with Juan, she nonetheless
continued to use cocaine after his incarceration. Mother had a job and believed that she
16
could care for her children on her salary and benefits. Mother was working on the
requirements for her children to be returned to her. However, Mother admitted to using
cocaine when a friend offered it to her after the Department had taken her children,
knowing that her parental rights were at risk for termination.
Mother argues that the need for permanence is the paramount consideration for a
child‘s physical needs and emotional needs. Mother asserts that the evidence shows that
the children were ―still languishing in a non-adoptive foster home‖ and permanence had
not been achieved. At the time of trial, the three youngest, L.E.F., R.E.F., and J.R.C, had
been placed together in a foster home, and the Department was working on finding an
adoptive family for them. While evidence about plans and adoptions are relevant to best
interest, lack of evidence about definitive plans for permanent placement and cannot be
the dispositive factor; otherwise determinations regarding best interest would regularly be
subject to reversal on the sole ground that an adoptive family has yet to be located. In re
C.H., 89 S.W.3d at 28. ―Instead, the inquiry is whether, on the entire record, a factfinder
could reasonably form a firm conviction or belief that termination of parent‘s rights
would be in the child‘s best interest—even if the agency is unable to identify with
precision the child‘s future home environment.‖ Id. Therefore, the fact that the children
were not in a permanent placement at the time of trial does not weigh against a finding
that termination is in the best interest of the three youngest children.
We conclude that the trial court could have formed a firm belief or conviction that
termination of Mother‘s rights to L.E.F., R.E.F., and J.C.R. was in the children‘s best
interest. We overrule Mother‘s third issue.
MANAGING AND POSSESSORY CONSERVATORS
In her fourth issue, Mother argues that the trial court abused its discretion by (1)
appointing Milton managing conservator of the five older children and (2) failing to
appoint Mother possessory conservator of those children.
17
Section 153.131 states:
(a) Subject to the prohibition in Section 153.004, unless the court finds that
appointment of the parent or parents would not be in the best interest of the
child because the appointment would significantly impair the child‘s
physical health or emotional development, a parent shall be appointed sole
managing conservator or both parents shall be appointed as joint managing
conservators of the child.
(b) It is a rebuttable presumption that the appointment of the parents of a
child as joint managing conservators is in the best interest of the child. A
finding of a history of family violence involving the parents of a child
removes the presumption under this subsection.
TEX. FAM. CODE ANN. § 153.131 (West 2008).
Section 153.191 states:
The court shall appoint as a possessory conservator a parent who is not
appointed as a sole or joint managing conservator unless it finds that the
appointment is not in the best interest of the child and that parental
possession or access would endanger the physical or emotional welfare of
the child.
TEX. FAM. CODE ANN. § 153.191 (West 2008).
The trial court‘s conservatorship determinations are subject to review only for
abuse of discretion, and may be reversed only if the decision is arbitrary and
unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Unlike termination
findings, which must be supported by clear and convincing evidence, findings on
conservator appointments must be supported by a preponderance of the evidence. See id.
(―[A] finding that appointment of a parent as managing conservator would significantly
impair the child‘s physical health or emotional development is governed by a
preponderance-of-the-evidence standard.‖).
Under the abuse of discretion standard, legal and factual sufficiency of the
evidence are not independent grounds of error, but rather are relevant factors in assessing
whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex.
18
App.—Houston [14th Dist.] 2002, no pet.). There is no abuse of discretion as long as
some evidence of a substantive and probative character exists to support the trial court‘s
decision. Id.
In reviewing the legal sufficiency of the evidence, we view the evidence in the
light most favorable to the fact finding, crediting favorable evidence if reasonable
persons could, and disregarding contrary evidence unless reasonable persons could not.
City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). Anything more than a
scintilla of evidence is legally sufficient to support the finding. Vazquez v. Vazquez, 292
S.W.3d 80, 83 (Tex. App.—Houston [14th Dist.] 2007, no pet.). When reviewing a
factual sufficiency challenge, we consider all of the evidence and will set aside the
finding only if the evidence is so weak or if the finding is so against the overwhelming
weight of the evidence that the finding is clearly wrong and unjust. Maritime Overseas
Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998).
In determining conservatorship issues, the primary consideration of the trial court
is the best interest of the child. Ayala v. Ayala, No. 01-09-00785-CV, — S.W.3d —,
2011 WL 2930311, at *7 (Tex. App.—Houston [1st Dist.] July 21, 2011, no pet.). The
Holley factors for determining the best interest of the child are applicable to
conservatorship decisions. See id. (applying Holley factors to trial court‘s decision on
appointment of sole managing conservator).
Mother argues that the trial court abused its discretion by appointing Milton sole
managing conservator because Milton had an extensive criminal record and history of
assaultive behavior. The evidence reflects that Milton‘s criminal history includes a
conviction for assault in 1999, and a conviction for assault of a family member in 2000.
The evidence further shows that Milton was charged with criminal trespass in 1996,
domestic assault in 2007, and patronizing prostitution in 2007. However, the evidence
does not show that he was convicted on those charges.
19
Mother testified that Milton ―beat her up all the time‖ and burned A.H.A.‘s foot
with a lighter because he tore the ―working permit.‖ Mother filed charges against Milton
three times. A.H.A. told Mother that Milton makes him clean offices with him at night
and he does not go to school because he is not sleeping at night. Mother testified that the
children are begging at the church.
Curry testified that A.H.A. did not tell her that his father was forcing him to work
at night with him or that the children are begging for money at church. A.H.A. told
Curry that he is happy and he is okay; no one is yelling at or hitting him; and he is eating
and taking baths. The trial court was entitled to reject Mother‘s testimony and believe
Curry‘s testimony. See Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.—Dallas 2008, no
pet.) (stating that, in a bench trial, the trial court is the sole judge of credibility of
witnesses, assigns weight to be given their testimony, may accept or reject all or part of
their testimony, and resolves any conflicts or inconsistencies in the testimony). After
Milton came forward, he expressed an interest in the children. Curry testified that Milton
had been driving down from Tennessee to see the children, and the children had bonded
with him and were comfortable with him.
Because Milton was not the reason the children came into care, he was considered
for managing conservator. As stated before, Milton had been driving down from
Tennessee to see the children, and the children had bonded with him. The trial court had
ordered the children to return to their father at a hearing held a week prior to trial and
allowed the father to take the children to Tennessee. No finding of a history of family
violence was made. Under these facts, we cannot say the trial court abused its discretion
by appointing Milton sole managing conservator of A.H.A., M.O.A., D.J.A, E.A.A.A.,
and J.J.A.A.
Mother also argues that the trial court abused its discretion by refusing to appoint
her possessory conservator. Curry testified that Mother had been regularly visiting the
children throughout the case, the visits were ―normal,‖ and Mother brought the children
20
food. Curry further testified that the children were bonded with Mother, and she adored
her children. Mother testified that the children called her everyday and told her that they
wanted to come home. Mother testified that she never used drugs in front of the children.
Mother claims that there is no evidence that she had any criminal or CPS history.
Contrary to Mother‘s claim that there is no evidence that she has any CPS history,
the Department‘s report, which was admitted into evidence, showed that in March 2009
and October 2009, the Department had received allegations of neglectful supervision of
the children, and reports that the children did not have enough food. The issue of neglect
arose again when the children told the Department that there were times that they did not
have enough to eat, and Mother admitted that ―rations tend to run very low towards the
end of the month.‖ Moreover, Mother had consumed alcohol during all of her
pregnancies; used cocaine during her last pregnancy resulting the stillbirth of the child;
continued to use cocaine after Juan‘s incarceration, even though she claimed to use
cocaine for strength in face of his abuse; used cocaine regularly on weekends; and used
cocaine after the Department had taken her children, knowing her rights to her children
were in jeopardy. We conclude that the trial court did not abuse its discretion by failing
to appoint Mother possessory conservator of A.H.A., M.O.A., D.J.A., E.A.A.A., and
J.J.A.A.. We overrule Mother‘s fourth issue.
Having overruled all of Mother‘s issues, we affirm the trial court‘s judgment.
/s/ Sharon McCally
Justice
Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
21