in the Interest of A.L. and D.L., Children ( 2014 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00050-CV
IN THE INTEREST OF A.L. AND D.L., CHILDREN
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court No. 78,826
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Twenty-four-year-old Brandy Lee had been addicted to methamphetamine for many
years and had continued to make bad choices when the trial court terminated her parental rights
to A.L. and D.L. 1 Lee appeals the termination claiming that insufficient evidence supports the
trial court’s judgment. We affirm the trial court’s judgment.
Specifically, Lee argues that the evidence was legally and factually insufficient to support
the trial court’s findings (1) that she “knowingly placed or knowingly allowed the child[ren] to
remain in conditions or surroundings which endanger[ed] the physical or emotional well-being of
the child[ren],” (2) that she “engaged in conduct or knowingly placed the child[ren] with persons
who engaged in conduct which endanger[ed] the physical or emotional well-being of the
child[ren],” and (3) that she “failed to comply with the provisions of a court order that
specifically established the actions necessary for [her] to obtain the return of the child[ren].” See
TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (O) (West 2014). Lee also challenges the trial
court’s finding that termination of her parental rights was in the children’s best interests. See
TEX. FAM. CODE ANN. § 161.001(2) (West 2014).
According to Lee’s grandmother, Norma DeMont, Lee had no schooling beyond the tenth
grade, had held only one job for as much as three months at a time, and had never proven that
she was capable of supporting herself. By the time of trial in this case, Lee’s first child was
1
To protect the confidentiality of the children, A.L. and D.L., this Court will refer to relatives of involved
individuals by fictitious names. See TEX. R. APP. P. 9.8(b)(C)(2).
2
living with her father, and Lee was pregnant with her fourth child. 2 After receiving reports that
Lee was using methamphetamine in front of the children, had sex in front of the children, and
was “passing out naked pictures with call back numbers, for possible prostitution,” the Texas
Department of Family and Protective Services intervened. Realizing that its efforts to assist Lee
were failing, the Department filed suit to terminate Lee’s parent-child relationship with her
second and third children, the then four-year-old A.L. and one-year-old D.L.
A parent’s rights to “the companionship, care, custody, and management” of his or her
children are constitutional interests “far more precious than any property right.” Santosky v.
Kramer, 455 U.S. 745, 758–59 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Decisions
from Texas courts show great respect for the biological bond between parent and child,
recognizing “that the natural right which exists between parents and their children is one of
constitutional dimensions.” In re J.W.T., 872 S.W.2d 189, 194–95 (Tex. 1994); In re J.J. & K.J.,
911 S.W.2d 437, 439 (Tex. App.—Texarkana 1995, writ denied). Thus, we strictly scrutinize
termination proceedings in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied). On the other
hand, the child’s emotional and physical interests must not be sacrificed merely to preserve
parental rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
To terminate an individual’s parental rights to his child, the Department must prove, and
the trial court must find, by clear and convincing evidence, both (1) that the parent has engaged
in one of the statutory grounds for termination and (2) that termination is in the child’s best
2
There was evidence that none of Lee’s four children shared the same father.
3
interest. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re E.N.C., 384 S.W.3d 796, 798 (Tex.
2012); C.H., 89 S.W.3d at 23. Proof by clear and convincing evidence is “that measure or
degree of proof which 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); C.H., 89 S.W.3d at 23. Due process demands this heightened standard. E.N.C., 384
S.W.3d at 802 (citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). Thus, in reviewing
termination findings, we determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction about the truth of the State’s allegations. C.H., 89
S.W.3d at 25.
In a legal-sufficiency review, termination findings are given appropriate deference. See
J.F.C., 96 S.W.3d at 266; Smith v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d
673, 679 (Tex. App.—Austin 2005, no pet.). In such cases, we consider all the evidence in the
light most favorable to the findings to determine whether the fact-finder could reasonably have
formed a firm belief or conviction that the grounds for termination were proven. E.N.C., 384
S.W.3d at 802 (citing J.F.C., 96 S.W.3d at 266); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005);
In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.). We assume that the
fact-finder resolved disputed facts in favor of the finding if a reasonable fact-finder could do so
and disregard evidence that the fact-finder may have reasonably disbelieved and witnesses whose
credibility may reasonably be doubted. E.N.C., 384 S.W.3d at 802 (citing J.F.C., 96 S.W.3d at
266); J.P.B., 180 S.W.3d at 573.
4
The inquiry in a factual-sufficiency review is “whether the evidence is such that a fact-
finder could reasonably form a firm belief or conviction about the truth of the State’s
allegations.” C.H., 89 S.W.3d at 25; J.L.B., 349 S.W.3d at 846. We consider whether disputed
evidence is such that a reasonable fact-finder could not have resolved that disputed evidence in
favor of its finding. C.H., 89 S.W.3d at 28; J.L.B., 349 S.W.3d at 846. If, in weighing the
disputed evidence, the fact-finder could have reasonably resolved the conflicts to form a firm
conviction that the State’s allegations concerning the grounds for termination were true, then the
evidence is factually sufficient and the termination findings must be upheld. C.H., 89 S.W.3d at
18–19; see J.F.C., 96 S.W.3d at 266.
Lee’s criminal history preceded the Department’s involvement in this termination case.
Nora Granger, a Kaufman County community supervision officer (CSO), testified that Lee was
placed on deferred adjudication community supervision on June 2, 2011, for a state-jail felony
theft offense. The terms and conditions of Lee’s community supervision required her to remain
drug free, report to her CSO periodically, complete community service hours at a specified rate,
and pay community supervision fines and fees as ordered. According to Granger, the State filed
a motion to revoke November 28, 2011, because Lee had failed to report to her CSO, had not
completed the required community supervision hours, and had not paid the required fines and
fees. One month later, on December 13, 2011, when A.L. was two years old, Lee tested positive
for methamphetamine. The State’s motion to revoke was pending when Lee moved to Hunt
County, Texas.
5
D.L. was born August 29, 2012. On October 17, 2012, the Department received reports
that Lee and her sister, Amy Lee, were using methamphetamine in front of the children, were
having sex in the children’s presence, and were “passing out naked pictures with call back
numbers, for possible prostitution.” Jessica Francis, an investigator with the Hunt County Child
Protective Services (CPS), discussed the allegations with Lee. Despite the prohibitions stated in
the terms and conditions of her Kaufman County community supervision, Lee admitted to
Francis that she had recently used methamphetamine at a friend’s house, that she had regularly
abused the drug for approximately five years, and that she typically used the drug with Amy,
who also had a young child.
Based on Lee’s interview with Francis, the Department developed an initial safety plan,
signed by Lee October 25, 2012, that (1) removed A.L. and D.L. from Lee’s residence and
placed them with Lee’s mother, Angie Lee, and DeMont, who lived next door, 3 (2) prohibited
any unsupervised visitation by Lee or Amy, and (3) required Lee to refrain from using illegal
substances. However, on November 1, 2012, Lee testified positive for methamphetamine and,
according to Francis, admitted to using the synthetic, marijuana-like drug K2 and taking
Hydrocodone that was not prescribed to her.
On November 8, 2012, Francis made an unsupervised visit to the residences and was
expressly denied entry by DeMont. On November 14, 2012, Francis testified that, although she
could hear people inside, no one opened the door to her. The following day, Angie granted
Francis entry to Lee’s trailer. Francis found the children inside with Lee, Amy, and two
3
The two residences sat on the same lot. At the time of the Department’s intervention, A.L.’s and D.L.’s fathers
were both incarcerated.
6
unknown males. Francis testified that Lee would not keep contact with her and that neither Lee
nor her family members were following the initial service plan. Francis’ supervisor, Rochell
Bryant, travelled to the trailers November 20, 2012, to investigate a new report that Angie and
DeMont were allowing Lee and Amy, “who were having a drug problem,” to have unsupervised
visitation with the children. Bryant testified that DeMont met her outside of the trailers and was
very angry that she was there. DeMont told Bryant that Lee and Amy were no longer living in
the trailers. Although the trailers were cluttered and the children were sick and dirty, Bryant
testified, “for the most part [the children] were okay.”
As a result of Lee’s noncompliance with the initial safety plan, the Department (1) issued
a new safety plan November 26, 2012, which prevented Lee from having any contact with her
children, and, (2) on November 30, 2012, filed suit for protection of the children, temporary
managing conservatorship, and termination of Lee’s parental rights in the event that reunification
could not be achieved.
On December 12, 2012, after she was found hiding in DeMont’s trailer, Lee was arrested
on a warrant that had been issued on the State’s motion to revoke her Kaufman County
community supervision. While her children watched, Lee was taken into custody by Michael
Ball, a Hunt County police officer. As a result of the State’s motion, a Kaufman County court
adjudicated Lee’s guilt, but continued her on community supervision and extended the period of
her community supervision by one year. Although Lee was continued on community
supervision, the incident confirmed to the Department that Lee and her family were not
complying with its safety plan.
7
On January 2, 2013, the trial court issued temporary orders which (1) appointed the
Department temporary managing conservator of A.L. and D.L., (2) allowed the children to be
placed into foster care, (3) appointed Lee temporary possessory conservator of the children, and
(4) set forth the tasks Lee was required to accomplish to ensure the return of her children. The
order required Lee to (1) attend counseling until the counselor determined that no further
sessions were necessary, (2) successfully complete parenting classes, (3) submit to a drug and
alcohol dependency assessment as determined by the Department, (4) follow all
recommendations of the drug assessment, (5) submit to random drug testing, (6) refrain from
drug or alcohol use during the pendency of the case, (7) maintain stable income throughout the
pendency of the case, (8) maintain stable, safe, and appropriate housing, (9) refrain from
engaging in criminal activity, (10) refrain from unsupervised visitation with any children under
eighteen years of age, and (11) comply with each requirement set out in any service plan created
by the Department during the case.
On January 17, 2013, the Department issued a new family service plan incorporating the
trial court’s temporary orders. The Department’s plan included all of the trial court’s
requirements for Lee and also specified that she (1) obtain and maintain steady employment or
provide CPS with a list of every job applied for, (2) attend scheduled supervised visitation with
the children, (3) attend and participate in individual counseling with Ray Gladden, beginning
within thirty days and continuing until release by Gladden, (4) complete a drug and alcohol
dependency assessment with Lakes Regional MHMR Center in Greenville, Texas, and follow all
recommendations from that assessment, (5) attend, participate in, and successfully complete six
8
sessions of parenting classes at Raffa Clinic in Greenville, (6) attend, participate in, and
successfully complete outpatient drug treatment and classes, and (7) attend Narcotics
Anonymous/Alcoholics Anonymous meetings three times a week. Department employee
Morgan Shields testified that she met with Lee to review this plan in person and to explain to Lee
what she needed to do in order to gain the return of A.L. and D.L. On February 7, 2013, Shields
met with Lee, Angie, and DeMont. At this meeting, the Department provided Lee with a
calendar to assist her in planning her services. The calendar contained notations on dates when
Lee was expected to receive services, as well as telephone numbers for the people Lee was
expected to call. According to Shields, Lee was less focused on obtaining the return of her
children and was instead more concerned with having an intimate relationship with Sean Lymes,
A.L.’s father, who was still incarcerated.
At a February 8, 2013, status hearing, the trial court (1) reviewed the Department’s plan,
(2) found the Department’s plan to be reasonable and in compliance with its temporary orders,
(3) further found that Lee understood the plan, and (4) incorporated the Department’s
January 17, 2013, family service plan as an order of the court. 4
Shields testified that Lee passed drug tests administered in January and March 2013. CSO
Granger also testified that Lee passed a March 20, 2013, drug test. However, Lee was still
socializing with drug users and engaging in risky behavior. According to her own testimony,
4
Sometime in February, DeMont’s trailer burned, and she moved to an apartment complex in Greenville. Granger
testified that her February 6 and March 10, 2013, field visits to the trailers revealed that Lee and Amy were living
together in the remaining trailer.
9
Lee went to her drug-user friend Rosalinda Chapman’s house to meet a man named Rick. 5
During this initial introduction, Lee had sex with Rick and became pregnant. When Lee
informed Rick of the pregnancy, Rick told Lee that he wanted nothing to do with her and
promptly changed his telephone number. According to Lee, Chapman “never said that [Rick]
was a good guy.”
During this timeframe, Granger testified that Lee, who was supposed to be reporting to
the community supervision office twice a month, was “barely making one appointment a
month.” Lee had not performed her community service as ordered and was behind on her
community supervision fines and fees. Granger testified that Lee, though pregnant, refused to
submit to a drug test June 19, 2013. Lymes was released from incarceration June 23, 2013. In
July, August, and September, Granger called Lee several times and asked her to come in for drug
testing. Lee did not comply. Consequently, (1) the State filed another motion to revoke Lee’s
community supervision, (2) Lee was arrested and incarcerated for twenty days, and (3) on
October 29, 2013, the Kaufman County court again extended Lee’s community supervision by
another year. Even after the October order, Granger testified that Lee was still not complying
with the terms and conditions of her community supervision. On November 15, 2013, a few
days before the final hearing in this termination suit, Lee told Granger that she desired to serve
time in jail rather than satisfy the terms and conditions of her community supervision.
At trial, the evidence demonstrated that Lee was not abiding by the terms of the
Department’s family service plan. Collectively, Shields and Heather Barnes Ponder, a
5
Lee never knew Rick’s last name.
10
Department social worker, testified that, while Lee completed a substance abuse evaluation,
counseling, attended all but one parenting class, and sporadically attended Narcotics Anonymous
meetings, she (1) failed to follow up on the drug evaluation’s recommendation that she complete
inpatient treatment in a rehabilitation center, (2) never attended outpatient drug treatment or drug
classes although (a) she had qualified for assistance to pay for those resources, and (b) DeMont
had previously volunteered to pay for the treatment, (3) never found employment, (4) failed to
maintain stable, safe housing, and (5) missed nine scheduled visits with A.L. and D.L. since
April 2013. According to Ponder, Lee’s missed visitation created much anxiety in A.L.
Lee testified in her own defense, claiming that she had not refused Granger’s urinalysis.
Lee explained that she was unable to use the restroom and that DeMont, who had transported
Lee to the appointment, became impatient and decided not to wait until the test could be
completed. DeMont denied Lee’s account and testified that she would have waited for Lee to
complete the drug test. DeMont also testified that she drove Lee to visit the children, had not
known that Lee had missed nine scheduled visitations, and would have driven Lee to those visits
had she been asked to do so. Lee claimed that she had completed parenting classes, but did not
have any documentation confirming her successful completion of all classes. According to Lee,
she was unable to obtain employment because she was pregnant. Lee admitted that she did not
complete inpatient treatment.
Claudia Fulbright, a Court-Appointed Special Advocate, testified that A.L. and D.L. had
been in a foster home for two months, were bonded with their foster family, and were thriving.
According to Fulbright, the foster family was capable of meeting A.L.’s and D.L.’s physical and
11
emotional needs and was “[a]bsolutely” interested in adopting them. Fulbright testified that A.L.
and D.L. would be in danger if returned to Lee and that termination was in the best interests of
the children. The associate judge agreed and ordered that Lee’s parental rights to A.L. and D.L.
be terminated.
On November 20, 2013, Lee filed a request for a de novo hearing, which was held June 3,
2014. At the hearing, Lee testified (1) that she had passed two drug tests given by the
Department, (2) that she was waiting to hear whether Albertson’s grocery was willing to hire her
pending the results of another drug test, (3) that she had worked at a Golden Chick fast food
restaurant before applying for a job at Albertson’s, (4) that it had been over one year since she
last used methamphetamine, (5) that her fourth child’s father might have been D.L.’s father, not
Rick, (6) and that she was living in a two-bedroom home with her father, Angie, Amy, and
DeMont, who were all willing to provide support for A.L. and D.L. in the event of their return.
The court entered a de novo order of termination based on this evidence and the transcript of the
November 15, 2013, final hearing.
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); In re K.W., 335 S.W.3d 767, 769 (Tex. App.—
Texarkana 2011, no pet.); In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, no
pet.). “If multiple predicate grounds are found by the trial court, we will affirm based on any one
ground because only one is necessary for termination of parental rights.” K.W., 335 S.W.3d at
769.
12
First, we conclude that the evidence was sufficient to establish ground E under Section
161.001(1) of the Texas Family Code. The Department alleged that Lee engaged in conduct
which endangered A.L.’s and D.L.’s physical or emotional well-being. See TEX. FAM. CODE
ANN. § 161.001(1)(E). Endanger “means more than a threat of metaphysical injury or potential
ill effects of a less-than-ideal family environment.” E.N.C., 384 S.W.3d at 803. It “means to
expose to loss or injury.” In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no
pet.) (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). This
statutory ground for termination “refers only to the parent’s conduct, as evidenced not only by
the parent’s acts, but also by the parent’s omissions or failures to act.” Id. at 366–67 (quoting In
re S.K., 198 S.W.3d 899, 902 (Tex. App.—Dallas 2006, pet. denied)). “The conduct to be
examined includes what the parent did both before and after the child was born.” Id.; E.N.C.,
384 S.W.3d at 804–05. “To be relevant, the conduct does not have to have been directed at the
child, nor must actual harm result to the child from the conduct.” Perez v. Tex. Dep’t of
Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.)
However, termination under this ground “must be based on more than a single act or omission; a
voluntary, deliberate, and conscious course of conduct by the parent is required.” Id. at 436.
“Because it exposes the child to the possibility that the parent may be impaired or
imprisoned, illegal drug use may support termination under section 161.001(1)(E).” Walker v.
Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.]
2009, pet. denied); see In re J.T.G., 121 S.W.3d 117, 125–26 (Tex. App.—Fort Worth 2003, no
pet.). Lee admits that drug addiction can establish an endangering course of conduct, but argues
13
that there is no evidence that Lee abused drugs in a manner that endangered the children.
However, “[t]he specific danger to the child’s well-being need not be established as an
independent proposition, but may be inferred from parental misconduct.” Perez, 148 S.W.3d at
436; In re N.K., 99 S.W.3d 295, 300 (Tex. App.—Texarkana 2003, no pet.).
Lee was a drug addict who had used methamphetamine for five years before the
Department’s involvement even though she was responsibile for raising young children. Lee
(1) used methamphetamine while on deferred adjudication community supervision, (2) used K2,
nonprescribed Hydrocodone, and methamphetamine after the Department’s involvement in this
case, and, (3) by her own admission, used methamphetamine while pregnant with her fourth
child in June 2013. 6 Although Lee’s drug assessment recommended inpatient drug treatment,
Lee made no effort to follow that recommendation in spite of a court order requiring her to do so.
Lee also failed to comply with other requirements in the Department’s plan designed to ensure
that she remained drug free.
“‘[C]onduct that subjects a child to a life of uncertainty and instability endangers the
physical and emotional well-being of a child.’” J.L.B., 349 S.W.3d at 848 (quoting N.S.G., 235
at 367–68). Thus, “intentional criminal activity which expose[s] the parent to incarceration is
relevant evidence tending to establish a course of conduct endangering the emotional and
physical well-being of the child.” In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001,
no pet.) (per curiam).
6
In a separate case, the Department sought to terminate Lee’s parental rights to her fourth child. Evidence of how a
parent has treated other children is relevant in determining whether a course of conduct has been established under
ground E. In re K.R.G., No. 02-12-00384-CV, 2013 WL 3179498, at *20 (Tex. App.—Fort Worth Mar. 21, 2013,
pet. denied) (mem. op.). Lee’s first child lived with her father, who was able to provide a safe and stable home.
14
Lee violated the terms and conditions of her deferred adjudication community
supervision by using methamphetamine, failing to report regularly to her CSO, and failing to
complete community service hours as ordered. As a result of Lee’s decisions not to comply,
Lee’s children were made to witness their mother’s arrest. The Kaufman County court found
Lee guilty of a state-jail felony, thereby limiting her options for employment so that she could
provide for her children. Although Lee was placed on regular community supervision in January
2013, she again failed to report, failed to complete community service hours as ordered, and
failed to submit to drug testing in June, July, August, and September 2013. Once more, Lee was
subjected to incarceration. A few days before the November 18, 2013, final hearing, Lee told
Granger that she would rather go to jail than try and comply with the terms and conditions of her
community supervision.
As a result of her decisions, according to DeMont, Lee had never been able to maintain
steady employment. Before the Department’s involvement, Lee had held only one job for as
much as three months, and she relied entirely on Angie and DeMont for financial support.
Despite being ordered to maintain steady employment, Lee was unable to secure any
employment before the November 2013 termination hearing. During the pendency of the case,
Lee allowed her children to sleep in close proximity to two unknown males. Lee also socialized
with known drug users, engaged in a risky sexual encounter with a man she had just met, and,
according to Shields, was more concerned with romance than with obtaining the return of her
15
children. The evidence showed that Lee’s drug use, poor choices, and inability to provide for
A.L. and D.L. would subject the children to an uncertain existence. 7
In termination cases, “[w]hen there is conflicting evidence, it is the province of the trier
of fact to resolve such conflicts.” Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005)).
Based on all of the evidence introduced in this case, we conclude that the trial court could readily
have reached the necessary firm conviction or belief that Lee engaged in a course of conduct
which endangered the physical or emotional well-being of the children.
We also conclude that sufficient evidence showed that Lee violated ground O. The trial
court also found that Lee had failed to comply with its order, a statutory ground supporting
termination. Lee generally argues that the court’s order was vague and that it is unclear whether
Lee understood some requirements of the service plan. We disagree. On February 8, 2013, the
trial court incorporated the Department’s family service plan as its own order. Among other
things, Lee was required to (1) attend, participate in, and successfully complete outpatient drug
treatment and drug classes, (2) follow all recommendations of the drug and alcohol dependency
assessment conducted by the Lakes Regional MHMR Center in Greenville, Texas, (3) refrain
from drug or alcohol use during the pendency of the case, (4) obtain and maintain steady
employment, (5) attend scheduled supervised visitation with the children, and (6) attend
Narcotics Anonymous/Alcoholics Anonymous three times a week. Shields testified that she
7
See In re M.N.G., 147 S.W.3d 521, 539–40 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g) (noting that
parent’s prolonged history of unemployment and financial instability, among other things, indicates inability to
provide for child, which is relevant consideration in trial court’s finding of endangerment); Doyle v. TDPRS, 16
S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet. denied).
16
explained this plan to Lee in person, that Lee had a calendar highlighting dates requiring action
on her part, and that Lee had no questions about the requirements of the family service plan. At
the February 8 status hearing, the trial court specifically found that Lee understood the plan.
By her own admission, Lee testified that she failed to attend and complete the out-patient
drug treatment and drug classes. Although the drug and alcohol dependency assessment
produced a recommendation of in-patient treatment, Lee made no effort to follow the
recommendation. Granger testified that Lee refused to take drug tests. At the June 3, 2014, de
novo hearing, Lee testified that the last time she used methamphetamine was “over a year ago,”
while the Department’s case was pending. It was uncontested that Lee had failed to maintain
any steady employment. Lee had missed nine scheduled visits with the children and had not
attended Narcotics Anonymous or Alcoholics Anonymous as ordered.
Lee’s compliance with some of the terms of the service plan was insufficient to avoid a
finding of termination under Section 161.001(1)(O) of the Texas Family Code. In re C.M.C.,
273 S.W.3d 862, 875 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (substantial compliance
insufficient to avoid termination under ground O); see In re J.S., 291 S.W.3d 60, 67 (Tex.
App.—Eastland 2009, no pet); In re C.R., 263 S.W.3d 368, 373–74 (Tex. App.—Dallas 2008, no
pet.). The trial court’s finding under Section 161.001(1)(O) was based on clear and convincing
evidence of Lee’s noncompliance with its orders.
17
We conclude that legally and factually sufficient evidence supports the trial court’s
predicate findings under Section 161.001(1). 8
We also conclude that sufficient evidence established that termination was in the best
interests of the children.
There is a strong presumption that a child’s interest is best served by preserving the
conservatorship of the parents; however, clear and convincing evidence to the contrary may
overcome the presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re K.S., 420 S.W.3d
852, 855 (Tex. App.—Texarkana 2014, no pet.). In deciding whether termination would be in
the best interest of the child, the trial court may consider this nonexclusive list of factors, known
as the Holley 9 factors: (1) the desires of the child; (2) the emotional and physical needs of the
child now and in the future; (3) the emotional and physical danger to the child now and in the
future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to
assist these individuals to promote the best interest of the child; (6) the plans for the child by
these individuals or by the agency seeking custody; (7) the stability of the home or proposed
placement; (8) the acts or omissions of the parent which 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.
8
Lee argues that the evidence is insufficient under Section 161.001(1)(D) of the Texas Family Code. “Under
subsection (D), it must be the environment itself that causes the child’s physical or emotional well-being to be
endangered, not the parent’s conduct.” N.R., 101 S.W.3d at 776; see TEX. FAM. CODE ANN. § 161.001(1)(D). Lee
contends that there is no evidence (1) that she used drugs in front of the children, (2) that the trailer homes were not
appropriate homes for the children, or (3) that Angie or DeMont endangered the children. As there is ample
evidence to support at least one other statutory ground of termination, we need not address this argument.
9
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).
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Holley, 544 S.W.2d at 371–72; In re K.S., 420 S.W.3d at 855. It is unnecessary to prove all of
these factors as a condition precedent to parental termination. C.H., 89 S.W.3d at 27.
Also, evidence offered to prove grounds for termination, contact between the natural
parent and child, degree of financial support, quality of care rendered by a child’s care giver, and
their willingness to adopt are all relevant to determining if termination is in the best interest of
the child. C.H., 89 S.W.3d at 28; In re J.W.M. & L.P.M., 153 S.W.3d 541, 548–49 (Tex. App.—
Amarillo 2004, pet. denied). “A parent’s lack of education, training, or misfortune is considered
when reviewing excuses for acts or omissions of a parent; however, these considerations do not
negate evidence tending to show that termination is in the child’s best interest.” Jordan, 325
S.W.3d at 732 (citing In re S.H.A., 728 S.W.2d 73, 89–90 (Tex. App.—Dallas 1987, writ ref’d
n.r.e.)).
While D.L. was too young to make his desires known, Ponder testified that A.L. cried for
Lee and asked to go home with her. We find that the first Holley factor weighs against
termination. See E.N.C., 384 S.W.3d at 808.
Due to their age, the emotional and physical needs of A.L. and D.L. now and in the future
are great. Ponder suggested that A.L. might require counseling. “A parent who lacks stability,
income, and a home is unable to provide for a child’s emotional and physical needs.” In re
J.T.G., No. 14-10-00972-CV, 2012 WL 171012, at *17 (Tex. App.—Houston [14th Dist.]
Jan. 19, 2012, pet. denied) (mem. op.). DeMont testified that Lee was unable to support herself
and that Lee relied on her and Angie to provide money for the children’s physical needs. At the
time of trial, Lee had no income or home of her own. Shields testified that Lee was more
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concerned with romantic relationships than securing the return of her children. Lee missed nine
scheduled visitations, causing anxiety in A.L. According to Granger, Lee would rather be
incarcerated for a state-jail felony than attempt to comply with the terms and conditions of her
community supervision. Although Lee’s parental rights had not been terminated to her first
child, Lee’s first child lived with her father and was cared for by him. The evidence in this case
suggested that Lee was incapable of meeting the children’s emotional and physical needs. On
the other hand, although A.L. was experiencing some natural anxiety caused by the separation,
Fulbright testified that A.L. and D.L. were thriving at the home of their foster parents and that
she was confident that the foster family would be able to meet A.L.’s and D.L.’s emotional and
physical needs. We find that the second Holley factor weighs in favor of termination.
Next, Fulbright testified that she believed the children might be in danger if returned to
Lee. “Evidence of past misconduct or neglect can be used to measure a parent’s future conduct.”
In re I.R.K.-N., No. 10-13-00455-CV, 2014 WL 2069281, at *7 (Tex. App.—Waco May 15,
2014, pet. filed) (mem. op.) (citing Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—
Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ)
(“Past is often prologue.”)); see In re B.A., No. 04-13-00246-CV, 2013 WL 4679089, at *1 (Tex.
App.—San Antonio Aug. 28, 2013, no pet.) (mem. op.) (failure to complete classes and
counseling “directly related to underlying reasons of the children’s removal . . . is evidence that
the children would continue to be in danger if they were returned to her”). The trial court could
have found that Lee’s drug addiction, history of poor choices, inability to provide for either
herself or any of her children, failure to complete drug treatment, and possible future
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incarceration should she be unable to successfully complete her community supervision
presented an emotional and physical danger to A.L. and D.L. now and in the future. We find that
the third Holley factor weighs in favor of termination.
Due to the fact that the children were often in the possession of Angie and DeMont
during the pendency of the case, Lee’s parental ability is questionable. Bryant testified that,
while Lee’s home was cluttered and the children were dirty, they were, “for the most part[,] . . .
okay.” The evidence demonstrated that Lee had attended parenting classes. Beyond testimony
that the foster family was loving, provided the children with structure, and applied rules
consistently, the Department did not present evidence of the parental abilities of the foster
family. We find that the fourth Holley factor is neutral. See E.N.C., 384 S.W.3d at 808.
The Department had many programs available to assist Lee to promote the best interests
of her children. However, the evidence at trial demonstrated that, although Lee was under court
order to complete some of these programs, she was unable to do so. Lee failed to take advantage
of the Department’s counseling program, assistance that would pay for out-patient treatment, in-
patient treatment programs available to her, GED classes, and Narcotics Anonymous classes. We
find that the fifth Holley factor weighs in favor of termination.
Because Lee’s parental rights to her first child had not been terminated, Lee desired for
A.L. and D.L. to be returned to her so they could continue their relationship with their older
sister. Yet, at the time of the de novo hearing, Lee still had no income. Her plan was to move
the children into a two-bedroom home with her dad, Angie, DeMont, and Amy, who was also a
methamphetamine addict and the person with whom Lee most often used methamphetamine.
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While DeMont testified that she loved the children and wanted them to move in with her, the
Department introduced ample evidence showing that neither DeMont nor Angie were capable of
following the Department’s plan to ensure the children’s safety. The Department discovered that
Angie and DeMont were allowing Lee unsupervised visitation with the children in violation of
their initial and first amended safety plans. On one such occasion, despite serious allegations of
prostitution involved in this case, the children were found sleeping in a trailer with Lee, Amy,
and two unknown males. Lee’s plan for the children placed them in danger as a direct result of
Lee’s and Amy’s risky behavior. On the other hand, Fulbright testified that the foster family that
was providing a stable home for the children was interested in adopting both A.L. and D.L. We
find that the sixth and seventh Holley factors weigh in favor of termination.
Lee’s history of drug abuse, lack of income or a home of her own, failure to take
advantage of benefits available to her by the Department, placement of her romantic
relationships above the needs of the children, failure to remain drug-free while under
investigation and on community supervision, noncompliance with the Department’s service
plans, and other acts and omissions during the pendency of the case indicated that the existing
parent-child relationship was not a proper one. Lee testified that no one would hire her because
she was pregnant, but Lee did not become pregnant until March 2013 and had failed to secure
employment or otherwise provide the Department with information that she had applied for jobs
before her 2013 pregnancy. Although her fourth child had already been born, Lee still had no
job at the time of the de novo hearing. Lee’s excuses for lack of cooperation with the
Department included lack of transportation and money. However, there was testimony that the
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Department secured assistance to pay for Lee’s out-patient treatment, that DeMont was willing to
pay expenses for Lee’s treatments before the loss of her home, and that DeMont was willing to
drive Lee to various appointments. We find that the eighth and ninth Holley factors weigh in
favor of termination.
Considering the Holley factors, and in light of all the evidence, the trial court could have
reasonably formed a firm belief or conviction that termination of Lee’s parental rights was in the
best interests of A.L. and D.L. Therefore, we conclude the evidence was legally and factually
sufficient to support the court’s best-interest finding.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 18, 2014
Date Decided: October 8, 2014
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