in the Interest of M.F and.L.B., Children ( 2019 )

Affirmed and Opinion Filed August 2, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00256-CV
IN THE INTEREST OF M.F. AND L.B., CHILDREN
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 85,906
MEMORANDUM OPINION
Before Justices Myers, Osborne, and Nowell
Opinion by Justice Nowell
This is an appeal from an order terminating the parental rights of Mother to her children,
M.F. and L.B. Mother argues the evidence at trial was legally and factually insufficient to support
a finding that termination of her parental rights was in the best interest of the children. We affirm
the trial court’s judgment.
BACKGROUND
Mother is the mother of both children. Father is Mother’s ex-husband and the biological
father of M.F. The trial court terminated the parental rights of L.B.’s biological father, but he does
not appeal that order. M.F. was eleven years old and L.B. was six years old at the time of trial.
The Texas Department of Family and Protective Services (Department) filed the petition
for protection of a child on March 26, 2018. Based on the affidavit filed in support of the petition,
the Department alleged there was a continuing danger to the physical health or safety of the
children if returned to the parents. The affidavit indicates the children were living with their
maternal great grandmother because it was not safe at Mother’s house. M.F. reported that people
use drugs and steal things at Mother’s house. M.F. claimed that Mother threw him across the room
while she was on drugs. M.F. later denied ever saying anyone abused him. However, he stated in
his forensic interview that he does not live with Mother because she is addicted to drugs, and he
feels unsafe with his mother. After further investigation and contact with Mother, the Department
removed the children on March 22, 2018.
One of the documents admitted at trial is the family service plan. It indicates the
Department and the maternal grandparents were concerned that Mother will continue using illegal
drugs and alcohol and will be unable to look after the children properly, the children could have
access to the illegal drugs and alcohol in the home, and Mother will “yell at or physically harm (or
chase the children with a bat) the children or other family members resulting in the children
becoming hurt or killed.” The plan states the Department is concerned that Mother has unaddressed
mental health issues and times of instability which could lead to the children’s needs going unmet
or to their injury or death. The plan also states that Mother told investigators she did nothing wrong
and did not agree to work on services.
The service plan for reunification of Mother and the children required her to refrain from
using drugs and alcohol, submit to random drug testing, submit to and follow the recommendations
of a drug assessment, attend NA/AA meetings at least three hours a week, complete outpatient
drug treatment classes, and prepare a written relapse plan upon completion of all drug and alcohol
services. Mother was also required to complete and follow the recommendations of psychological
and psychosocial assessments. She was required to complete individual counseling sessions to
address the specific issues that led to the removal of the children. Other services required of Mother
were parenting classes, domestic violence counseling, and anger management classes. Mother was
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required to maintain steady employment and safe, stable, and appropriate housing. The plan
required Mother to provide proof of successful completion of these services to the Department. It
also required Mother to attend all scheduled visits with the children, but provided that visits would
be suspended in the event of a positive drug test until the parent provided a negative hair follicle
drug test more than thirty days after the failed test.
The trial court’s temporary orders added the requirement for Mother to complete a ninety-
day inpatient drug treatment program and a Batterer’s Intervention and Prevention Program and
submit proof of completion of the programs to the Department. The temporary orders also
prohibited Mother from communicating directly, in person, by phone, email, text, or social media
with Father and his wife.
The case proceeded to a bench trial on February 7, 2019. Cori Holden, a former caseworker
for the Department, testified Mother failed to complete the services made available to her. Holden
testified Mother told her she did not attend NA/AA meetings, did not complete a psychological
evaluation, parenting classes, or anger management. Mother later said she had not completed any
services. Mother never provided proof of successful completion of services as required by the
service plan. Holden testified that Mother did not attend some court-ordered drug tests.
Although Mother attempted to complete the inpatient drug treatment at Nexus and other
facilities, she left after a few days due to extreme anxiety. Holden testified that treatment centers
like Nexus are equipped to address issues like anxiety. Holden did not consider Mother’s reason
for leaving the facility a legitimate reason.
Charlene Green, the current caseworker, testified that Mother told Green shortly before
trial that she had completed all her services, but had not turned in any documents. Green told her
to provide the documents to the Department as soon as possible before trial and to make certain
her attorney knew about the documents and had copies. Green confirmed the Department never
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received any proof that Mother completed the services.
Lisa Cuba, a CASA volunteer, observed three visits between Mother and the children. The
third visit was terminated early by the Department caseworker. Cuba observed that visit and stated:
“I did not observe any mature parenting during that visit. Specifically, she was inciting sullen,
angry behavior from [M.F.] towards his dad. And, at the same time, ignoring [L.B.] who was
getting more and more upset as the visit progressed.” Mother “raised her voice and yelled towards
the screen, at the investigative caseworker, after she had received one warning that the visit may
have to be terminated.” The visit was terminated after Mother violated the warning.
Holden testified that visitation was stopped based on the court’s policy of suspending
visitation due to drug tests. Visits can be reinstated based on further drug testing. The Department
sent Mother for additional drug tests, but her visitation was not reinstated. Green testified that
Mother and her preacher dropped off photo albums for the children, but that was the only gift or
card Mother provided for the children during her time on the case. Holden testified Mother sent
some emails asking how the children were doing, but did not provide gifts or cards for children.
When asked if she had concerns about Mother’s ability to meet the physical and emotional
needs of the children, Holden testified:
A. [Mother] was given a reason to believe in a previous CPS case for causing bodily
injury to [M.F.], injuring vital areas of his body. She was subsequently arrested and
charged with child endangerment for that. And that was in 2011.
[M.F.] told me that there were times that he felt terrified -- and that is a quote -- of
his mother. Like, he told me that one time she chased him around with a bat and he
was very fearful. [M.F.] expressed to me on several occasions that he never wanted
to live with his mother again. He also expressed to me that he was terrified of his
mother finding him and [L.B.] and taking them away.
Clearly, things have happened in that home with [Mother] that scared [M.F.] for
him to say that he is terrified of his mother. [Mother], throughout the case when I
had it, demonstrated no ability to positively parent the children. And she made no
effort to utilize any of the programs provided to her to help her in that area.
Holden was also concerned that Mother contacted Father during the case in violation of the
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court’s order. She was concerned that if Mother violated a simple and direct order, she would not
follow more complex court orders. In addition, Mother “adamantly” objected to the children being
placed with Father and told Holden she would rather they be in foster care than be placed with
Father. Holden was concerned about Mother’s ability “to make appropriate and rational decisions”
regarding the children.
Green testified she did not believe Mother could provide for the children’s physical or
emotional needs based on her “review of the case and the inability of the mother to follow through
with anything or fight for her children.” Green would also worry the children would be in physical
or emotional danger if returned to Mother based on the case history and statements the children
made during the case. Based on her experience working this case, observations of the children,
and Mother’s failure to work the service plan and inability to provide a safe environment, Green
testified that it is in the children’s best interest for Mother’s parental rights to be terminated. Cuba
testified that CASA agreed with the Department that termination of Mother’s parental rights was
in the best interests of the children. Based on her observations during the case, Cuba did not believe
Mother could provide for the children’s physical or emotional needs and that the children would
be in physical or emotional danger if returned to Mother based on Mother’s inability to maintain
rational behavior or parenting.
Both M.F. and L.B. were placed with Father and his wife at the time of trial. Holden
testified she observed the children:
to be happy and healthy and well taken care of in [Father’s] home. [M.F.] directly
told me that he feels safe and protected and provided for. [L.B.], when I could get
her to sit still and directly tell me anything, she did tell me that she also felt safe.
And that both children, 100 percent of the time that I asked them, they wanted to
stay where they were.
Holden described her initial observations of the children as follows:
When I first met L.B., she was nervous, soft spoken. She was hoarding food in her
foster home. When I first met M.F., I don't think anybody would ever say that M.F.
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is soft spoken or nervous. I often made the joke that I'm not sure he ever stopped
talking once I met him. He was very animated and he came across as highly
intelligent and very articulate and very much knew what he wanted.
After being placed with Father, Holden observed that L.B. was “comfortable and calm. She
is not hording food. She is animated and happy. Just an overall very excited and sweet girl.” Holden
explained that L.B. had a speech impediment when she came into care, but made vast
improvements while in Father’s care. Holden also recognized that M.F. seemed to parent L.B.,
which was not a typical sibling dynamic. Father testified that M.F. was anxious and always slightly
nervous when he was first placed with Father, but now he is outspoken and headstrong, not anxious
or nervous at all.
Green also observed the children in Father’s home. She testified they were “very calm,
very confident. There’s no signs of fear, timidness, or shyness when working with the parents. And
I have no observation of them being scared or afraid in any way, shape, or form in the home.”
Green testified that based on her conversations with both children, she believes their desire is to
remain in the home with Father and his wife, and for Mother’s rights to be terminated.
Father testified that he and his wife planned to adopt L.B. and his wife hoped to adopt M.F.
He stated that M.F. is very bonded with his sister and Father wants them to be able to remain
together. Green and Holden agreed that Father’s home was a stable environment and the children
are bonded with each other. Cuba testified the children are happy and bonded in their current
placement and L.B. seems “extremely” bonded to Father and his wife. The Department’s goal is
for the children to remain together in Father’s home and for Father and his wife to adopt L.B.
After hearing the evidence, the trial court found that termination was in the best interest of
the children and terminated Mother’s parental rights under subsections (N) and (O) of section
161.001(b)(1) of the Family Code. TEX. FAM. CODE ANN. § 161.001(b)(1)(N) and (O). Mother
challenges only the sufficiency of the evidence to support the finding that termination of her
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parental rights is in the best interest of the children.
STANDARD OF REVIEW
Because of the importance of the parent-child relationship, termination of parental rights
requires a higher standard of proof—clear and convincing evidence—than preponderance of the
evidence. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014). A court may terminate a parent-child
relationship if it finds by clear and convincing evidence (1) one or more statutory grounds for
termination and (2) that termination is in the child’s best interest. TEX. FAM. CODE ANN.
§ 161.001(b)(1)–(2). 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.
Id. § 101.007.
In reviewing the legal sufficiency of the evidence, we look at all 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 its finding was true.” In the Interest of J.F.C., 96 S.W.3d 256, 266
(Tex. 2002). “To give appropriate deference to the factfinder’s conclusions and the role of a court
conducting a legal sufficiency review, looking at the evidence in the light most favorable to the
judgment means that a reviewing court must assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so.” Id. In other words, we will disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id.
In reviewing the factual sufficiency of the evidence, we consider whether the disputed
evidence is such that a reasonable factfinder could not have resolved the disputed evidence in favor
of its finding. Id. “If, in light of the entire record, the disputed evidence that a reasonable factfinder
could not have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” Id.
A strong presumption exists that the best interest of the child will be served by keeping the
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child with a natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). In reviewing
the sufficiency of the evidence to support a finding that termination is in the child’s best interest,
a court examines several factors, including (1) the child’s desires, (2) the child’s age and emotional
and physical needs now and in the future, (3) any emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the plans for the
child by those individuals and the stability of the home, (6) the plans for the child by the agency
seeking custody and the stability of the proposed placement, (7) the acts or omissions of the parent
which may indicate the existing parent-child relationship is not a proper one, and (8) any excuse
for the acts or omission of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
The Holley factors focus on the best interest of the child, not the best interest of the parent.
Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas
1995, no writ). A best interest finding need not be supported by evidence of every Holley factor,
particularly if there is undisputed evidence that the parental relationship endangered the child’s
safety. In re C.H., 89 S.W.3d at 27. Evidence of grounds for termination listed in section
161.001(b)(1) may also be probative of a child’s best interest. Id. at 28.
DISCUSSION
Because Mother challenges only the best interest finding, we review the evidence in light
of the relevant Holley factors.
1. Desires of the Children
The evidence reflects that M.F. told Holden he was terrified of Mother, she once chased
him around with a bat, and he was very fearful of her. M.F. expressed that he did not want to live
with his mother again and was afraid she would find L.B. and him and take them away. The
evidence also shows that M.F. and L.B. feel safe with Father and are bonded with each other and
with Father and his wife. Green testified she believes the children wish to remain with Father and
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his wife.
2. Emotional and Physical Needs and Dangers
Stability and permanence are important considerations for a child’s present and future
emotional and physical needs. In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014, pet.
denied). The evidence indicates the needs of the children can be met by placement with Father.
Both children had issues when they came into care, but have improved since being placed with
Father. L.B.’s speech impediment is “vastly” improved and she no longer hoards food. M.F.
indicated to Green he was very happy with focusing on school and not having to worry about
protecting L.B. Holden, Green, and Cuba testified that Father’s home is a stable environment for
the children. Father and his wife plan to adopt L.B. and his wife plans to adopt both children,
which would provide them with the permanence they need for their emotional and physical needs.
There is no evidence that placing the children with Father would endanger their emotional and
physical needs now or in the future.
In contrast, the evidence raises serious doubts about Mother’s ability to meet the emotional
and physical needs of the children. Over the several months this case was pending, other than photo
albums, Mother did not provide gifts or cards to the children. The CASA volunteer did not observe
“any mature parenting” during one visit where Mother incited sullen, angry behavior from M.F.
towards Father, while she ignored L.B. who was growing more and more upset during the visit.
The visit was terminated early when Mother failed to heed the warning from the caseworker.
Afterwards, Mother’s visitation was halted due to drug tests and never reinstated.
There is also evidence Mother endangered the children through her unresolved drug use,
violence, and untreated mental health issues. The children were removed based on concerns about
these issues and the service plan provided services to help Mother overcome these problems. Yet,
Mother was unable to successfully complete the services. Holden testified there was a prior
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Department case involving Mother causing bodily injury to M.F. and that Mother was arrested and
charged with child endangerment as a result. Because of Mother’s inability to address her issues
by successfully completing the services made available to her, it is likely the dangers to the
children’s emotional and physical needs would continue in the future if they were returned to
Mother.
3. Parental Abilities and Plans of Those Seeking Custody and the Agency
As discussed above, the evidence indicates Father’s home is a stable environment for the
children and he plans to provide permanency for the children through a permanent placement and
adoption. The Department plans to place both children together with Father and supports Father’s
intent to adopt L.B. and his wife’s intent to adopt M.F. and L.B.
4. Acts or Omissions of the Parent and Excuses
The evidence establishes that Mother has unresolved drug use, violence and anger issues,
and untreated mental health issues. As a result, she has been unable to meet the emotional and
physical needs of the children in the past. Her inability to complete the services specifically
designed to address those issues indicates she will be unable to meet the children’s needs in the
future. While Mother attempted to complete inpatient drug treatment at Nexus, she was unable to
do so due to extreme anxiety. However, Holden did not believe this was a legitimate reason for
leaving the facility because such facilities are equipped to handle anxiety issues. Further, there is
no evidence of an excuse for Mother’s inability to complete the many other services required to
address her drug use, parenting skills, mental health and anger issues.
After considering the evidence and the relevant factors under the appropriate standards of
review, we conclude that the evidence presented at trial and summarized above is legally and
factually sufficient to reasonably establish a firm belief or conviction that termination of Mother’s
parental rights is in the children’s best interest. See TEX. FAM. CODE ANN. § 106.001(2); Holley,
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544 S.W.2d at 371–72. We overrule Mother’s sole issue.
CONCLUSION
After reviewing all the evidence under the appropriate standard of review, we conclude the
evidence is legally and factually sufficient to establish by clear and convincing evidence that
termination of Mother’s parental rights is in the best interest of the children. We affirm the trial
court’s judgment.
/Erin A. Nowell/
ERIN A. NOWELL
JUSTICE
190256F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.F. AND L.B., On Appeal from the 354th Judicial District
CHILDREN Court, Hunt County, Texas
Trial Court Cause No. 85,906.
No. 05-19-00256-CV Opinion delivered by Justice Nowell.
Justices Myers and Osborne participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 2nd day of August, 2019.
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