in the Interest of M.L.S. and S.H., Children ( 2012 )

Opinion filed June 21, 2012
In The
Eleventh Court of Appeals
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No. 11-12-00042-CV
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IN THE INTEREST OF M.L.S. AND S.H., CHILDREN
On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause No. 47,675
MEMORANDUM OPINION
This is an accelerated appeal of the trial court’s order terminating parental rights. We
affirm.
Appellant is the mother of M.L.S. and S.H. At the time of trial, M.L.S. was three years
old, and S.H. was eleven months old. Both children were born with cocaine in their systems.
Three days after S.H. was born, the Texas Department of Family and Protective Services filed a
petition seeking protection of the children, conservatorship, and termination of parental rights.
The court appointed the Department as the temporary sole managing conservator of the children,
and the Department placed the children in a foster home.
After a bench trial, the trial court found that termination of appellant’s parental rights as
to M.L.S and S.H. was in the best interest of both children and that appellant had (1) knowingly
placed or knowingly allowed the children to remain in conditions or surroundings that
endangered the physical or emotional well-being of the children; (2) engaged in conduct or
knowingly placed the children with persons who engaged in conduct that endangered the
physical or emotional well-being of the children; (3) failed to comply with the provisions of a
court order that specifically established the actions necessary for her to obtain the return of her
children; (4) used a controlled substance in a manner that endangered the health or safety of the
children and failed to complete a court-ordered substance abuse treatment program or, after
completing the program, continued to abuse a controlled substance; and (5) been the cause of the
children being born addicted to alcohol or a controlled substance. See TEX. FAM. CODE. ANN.
§§ 161.001(1)(D), (E), (O), (P), (R); 161.001(2) (West Supp. 2011). The trial court also
terminated the rights of the unknown father of M.L.S. and the known father of S.H. Neither
father appealed the trial court’s order. The trial court appointed the Department as the permanent
managing conservator of the children.
In ten issues, appellant alleges that the evidence was legally and factually insufficient to
support the trial court’s findings as to each of the first four grounds for termination listed above
and to support the trial court’s finding that termination was in the best interest of the children.
However, appellant does not challenge the legal and factual sufficiency of the evidence as to the
trial court’s finding that she was the cause of the children being born addicted to alcohol or a
controlled substance under Section 161.001(1)(R). “Only one predicate finding under
section 161.001(1) 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).
Although the trial court’s oral pronouncement of judgment only included findings that
appellant’s parental rights should be terminated based on Section 161.001(1)(D), (E), (O), and
(P), the written judgment of the trial court also included a finding that her rights should be
terminated under subsection (R). When there is an inconsistency between a written judgment
and an oral pronouncement of judgment, the written judgment controls. In re A.S.G., 345
S.W.3d 443, 448 (Tex. App.—San Antonio 2011, no pet.); In re K.M.B., 148 S.W.3d 618, 622
(Tex. App.—Houston [14th Dist.] 2004, no pet.). Because appellant does not challenge the trial
court’s written finding that she was the cause of M.L.S. and S.H. being born addicted to alcohol
or a controlled substance under subsection (R), we need not address her arguments, in Issues One
through Eight, that the evidence was legally and factually insufficient to support the other four
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grounds for termination found by the trial court. We overrule appellant’s first eight issues on
appeal.
In appellant’s ninth and tenth issues, she contends that the evidence was legally and
factually insufficient to support the trial court’s ruling that termination was in the best interest of
the children under Section 161.001(2).
To determine whether the evidence is legally sufficient, we review the evidence in the
light most favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002). We must assume that the factfinder resolved disputed facts in favor of the finding if
a reasonable factfinder could do so, and we must disregard all evidence that a reasonable
factfinder could have disbelieved. Id.
To determine whether the evidence is factually sufficient in a parental termination case,
we look to see whether a factfinder could reasonably form a firm belief or conviction about the
truth of the Department’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). If, in light of
the entire record, there is disputed evidence that a reasonable factfinder could not have resolved
in favor of the finding and if that disputed evidence is so significant that a factfinder could not
have reasonably formed a firm belief or conviction that the finding was true, then the evidence is
factually insufficient. In re J.F.C., 96 S.W.3d at 266.
The Texas Supreme Court has recognized several factors to consider in determining
whether termination is in the best interest of the children: (1) the desires of the children; (2) the
emotional and physical needs of the children now and in the future; (3) the emotional and
physical danger to the children now and in the future; (4) the parental abilities of the individuals
seeking custody; (5) the programs available to assist these individuals to promote the best
interest of the children; (6) the plans for the children by these individuals or by the agency
seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of
the parent that may indicate that the existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976). This list of factors is not exhaustive, and not all of the factors must be considered in
order to support a finding that termination is in the best interest of the children. In re C.H., 89
S.W.3d at 27.
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Appellant testified that she had three children over a period of nine years and that, during
those nine years, she used cocaine. Not only were M.L.S. and S.H. born with cocaine in their
systems, as we have previously noted, but her oldest child was also born with cocaine in his
system. He has lived with his father since he was three or four. Appellant agreed that, when she
used drugs before, during, and after her pregnancies, she was placing her children in conditions
that endangered their physical and emotional well-being.
As part of appellant’s family service plan, she was required to participate in counseling,
and she successfully did. Her counselor recommended that she complete an inpatient substance
abuse program. At the completion of the inpatient program, she was advised to complete an
outpatient program and attend AA/NA meetings. She testified that she had not completed any
portion of the outpatient program because it was located in Midland and she did not have a ride
or enough money for other transportation; she lived in Big Spring. It was her understanding that
the Department was going to help her find an outpatient program in Big Spring, but that did not
occur. She also testified that she had not recently been to any AA meetings; NA meetings were
not offered in Big Spring. Appellant was participating in random drug testing, and all of her
drug tests had come back negative.
Appellant was also required to attend parenting classes as part of her service plan. She
testified that she attended three classes but was unable to attend any other classes due to her
work schedule. Shawna Cuevis, a conservatorship supervisor and caseworker for the
Department, testified that the Department only received documentation that appellant
participated in one class, not three.
Norma Lopez, an administrative assistant at the Department, supervised appellant’s visits
with her children. She testified that appellant had not missed any recent visits and that, in all,
she only remembered appellant missing one or two. However, appellant would regularly cut her
two-hour visits short by thirty to forty-five minutes. Although appellant acted appropriately
around her children and her children recognized her and seemed to enjoy their time with her,
Lopez did not think that they were bonded the way a mother and her children should be bonded.
Deborah Morton, the children’s CASA advocate, testified that she observed one visitation
between the children and appellant and that, in her opinion, the children did not appear to be
bonded with appellant, although they did appear to be comfortable.
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At the time of trial, M.L.S. and S.H. had lived in foster care with Jamie and Brian Mathis
for eleven months. Jamie testified that, when M.L.S. first came to live with them, he was very
aggressive. He would bang his head against the walls, try and pull out his hair, scratch his skin,
and yell at the top of his lungs. He would also act out sexually on oversized stuffed animals they
had in the home. M.L.S. had many behavioral issues immediately after visiting with appellant,
such as screaming, kicking, pulling out his hair, intentionally defecating himself, and throwing
his “sippy cup” against the window in the car. He also had frequent nightmares. When he
turned three, he began going to play therapy. The therapy has helped with his aggression, and he
now only has aggressive moments after supervised visits with appellant.
Jamie had to take S.H. to the emergency room for breathing tremors when she was five
days old. After S.H.’s first visit with appellant, S.H. suffered from the same tremors. Jamie took
S.H. directly to the doctor after a subsequent visit so that the doctor could listen to her breathing.
Due to her allergy to cigarette smoke, S.H. was having difficulty breathing and was gasping for
air. S.H. was diagnosed with allergic rhinitis, and smoking restrictions were put into place. For
S.H.’s health and physical well-being, Jamie believed that it was in S.H.’s best interest to not be
around anyone that had been smoking. S.H. also required daily joint compressions to keep her
from becoming stiff.
Although appellant was aware of her daughter’s allergy, she continued to smoke.
However, appellant testified that she would quit smoking if necessary. Appellant’s father and
appellant’s boyfriend also smoked, but both would quit if the children were returned.
Appellant testified that she had a three-bedroom home available for the children if they
were returned to her. However, appellant did not currently reside in that home and took the
position that she did not need to prepare an appropriate place for her kids to live unless she got
them back. At the time of the trial, appellant lived with her boyfriend in a one-bedroom home.
She had lived with her boyfriend for approximately five months, and she planned to continue to
live with him if the children were returned. Her boyfriend was on parole from a conviction for
possession of methamphetamine. He had also previously been investigated by CPS. Appellant
believed that her children living with her and her boyfriend, despite his criminal and CPS
history, was in their best interest because he was a changed man. Cuevis disagreed and testified
that the Department’s position was that the children would not be safe in an environment that
included appellant’s boyfriend.
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On the two occasions that Morton visited their home, it smelled very strongly of smoke.
She was very disappointed and did not feel that they were taking S.H.’s condition seriously.
Morton also believed that they would continue to smoke.
Appellant’s father testified that, in the event the children were not returned to his
daughter, he would be willing and able to provide a home for them and care for them. Morton
testified that there was a very strong odor of smoke on the two occasions she visited his home.
There were also twenty to thirty cigarette butts in ashtrays inside his home. Appellant’s father
acknowledged that he had smoked for thirty years but said he would quit if the children were
placed in his custody. He had quit for lengths of time in the past and said he would do whatever
it took to ensure that S.H. was in a safe and appropriate home in light of her respiratory
problems. Morton did not feel that appellant’s father was taking S.H.’s condition seriously, and
she believed that he would continue to smoke. Appellant’s father also had a criminal history that
included serving time on probation and parole prior to his children being born. In addition, he
had been investigated by CPS five to eight times; each case was dismissed. The last time he was
investigated by CPS was ten or fifteen years before the trial.
Elyse Starr, a foster home developer for the Department, testified that appellant’s father
had been recommended as a relative that the children could live with, but he never provided the
Department with the required paperwork for someone with a criminal history. In order for the
Department to complete a risk evaluation on an individual with a criminal history, the individual
is required to send the Department a personal letter attesting to his criminal history, explaining
how his life has changed since the criminal activity, and stating why his home should be
considered for the children’s placement. Appellant’s father did send a letter detailing why he
should be considered for the placement of his grandchildren, but he never sent a letter addressing
his criminal past and how he had changed. Although Starr had originally sent the request to the
wrong address, she testified that she had since furnished appellant’s father with the details of the
request on numerous occasions. In her experience, she usually receives the requested
information and completes a risk evaluation in thirty days. Appellant’s father testified that he
was never told to send a letter explaining how he had changed.
Jamie testified that both children had adapted well to living with her and her husband.
Although they were living in a two-bedroom, one-bathroom rental at the time of trial, they were
under contract on a three-bedroom, two-bathroom home and were planning to move into that
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home within a month. Jamie testified that she and her husband had accepted both children into
their home, that they had bonded with both children, and that both children were thriving.
Morton testified that she observed the children in the Mathis home and believed that they
were thriving. She had no concerns about the children continuing to reside with the Mathises
and believed that it was in the best interest of the children to remain in their care. Morton also
testified that, based on her observations, it would be detrimental to the children if they were
placed with appellant and her boyfriend or with appellant’s father.
Cuevis testified that she was comfortable and satisfied with the children’s placement in
the Mathis home. She believed that they were in a safe environment and that the Mathises were
making every reasonable effort to control the children’s environment so that they could properly
thrive and grow. Cuevis testified that it was the Department’s recommendation, based on the
best interest of the children, that appellant’s parental rights be terminated.
Having reviewed the evidence in the light most favorable to the best interest finding
under the Holley factors, we hold that the trial court could have formed a firm belief or
conviction that terminating appellant’s parental rights was in the best interest of M.L.S. and S.H.
We also hold that the disputed evidence as to the best interest finding was not so significant that
the trial court could not have reasonably formed a firm belief or conviction that termination was
in the children’s best interest. The evidence was legally and factually sufficient to support the
trial court’s best interest finding. Appellant’s ninth and tenth issues are overruled.
The order of the trial court is affirmed.
JIM R. WRIGHT
CHIEF JUSTICE
June 21, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
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