in the Interest of K. M., Jr. a Child v. Department of Family and Protective Services ( 2019 )

Opinion issued August 22, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00285-CV
———————————
IN THE INTEREST OF K.M., JR., A MINOR CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2017-04805J
* * *
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00286-CV
———————————
IN THE INTEREST OF K.M., A MINOR CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2018-01409J
MEMORANDUM OPINION
These are accelerated appeals from the trial court’s decrees terminating the
parental rights of K.M. (“Father”) and D.M. (“Mother”) to their two minor
children, K.M. Jr. (“Kevin”) and K.M. (“Karen”).1 The case arose when a narcotics
investigation led police to a hotel, where they discovered Father, Mother, and
Kevin living in a room covered in dog feces and trash. The police arrested Father
and later returned to arrest Mother—who fled by jumping out of the second-story
window, leaving Kevin and another child in the hotel room alone. The Texas
Department of Family and Protective Services was appointed Kevin’s temporary
managing conservator, and, after Mother gave birth to Karen, the Department was
appointed Karen’s temporary managing conservator as well. Over the following
year-and-a-half, Father and Mother consistently tested positive for cocaine and
related substances, and their parental rights to both children were terminated after a
bench trial.
1
See TEX. R. APP. P. 28.1, 28.4; see also TEX. FAM. CODE § 109.002(a–1).
2
Father’s counsel filed a brief raising four issues, three of which challenge the
legal and factual sufficiency of the trial court’s predicate findings under Section
161.001(b)(1),2 and one of which challenges the legal and factual sufficiency of the
trial court’s best-interest finding under Section 161.001(b)(2).3 Mother’s counsel
filed a motion to withdraw and corresponding Anders brief,4 arguing Mother’s
appeal is without merit, and there are no grounds for reversal because there is
legally and factually sufficient evidence to show that (1) Mother had her parental
rights to an older child from a previous relationship terminated on endangerment
grounds and (2) termination of Mother’s parental rights to Kevin and Karen was in
the children’s best interest.
We overrule Father’s issues, deny Mother’s counsel’s motion to withdraw,
and affirm the trial court’s decrees of termination.
Background
The Department receives a referral accusing Mother and Father of physical
neglect and neglectful supervision
Father and Mother have two children together: Kevin, who was born in
December 2016, and Karen, who was born in March 2018. This case began in
2
See TEX. FAM. CODE § 161.001(b)(1).
3
See TEX. FAM. CODE § 161.001(b)(2).
4
See Anders v. California, 386 U.S. 738 (1967).
3
August 2017, roughly eight months before Karen was born, when the Department
received a referral accusing Mother and Father of physical neglect and neglectful
supervision of Kevin.
On August 2, 2017, Mother was pulled over by officers conducting a
narcotics investigation. Mother did not have her identification, so the officers
allowed her to retrieve it from the hotel room where she had been living with
Kevin, Father, and Father’s twelve-year-old daughter from a prior relationship.
However, when the officers arrived at the hotel room, Mother was not there.
Instead, they found Father, whom they arrested due to an outstanding felony
warrant.
The officers later verified Mother’s identity, discovered that she also had an
outstanding arrest warrant, and returned to the hotel room the next day to arrest
her. But when they arrived, Mother fled by jumping out of the second story hotel
room window—abandoning Kevin, then eight months old, and Father’s daughter,
both of whom remained in the hotel room, which was covered in dog feces and
trash. Mother was found and arrested later that day. The officers filed a referral.
As the Department investigated the referral, it discovered that Mother’s
parental rights to an older child from a previous relationship had been terminated
in 2012 and that Mother was currently pregnant with her third child. The
Department also discovered that Mother and Father had extensive criminal records.
4
Mother had convictions for theft, prostitution, and possession of cocaine, while
Father had convictions for criminal mischief, harassment, forgery, unauthorized
use of a vehicle, and possession of cocaine. Both had also been arrested and jailed
on charges that were eventually dropped or for which they received probation.
The Department petitions to terminate Mother’s and Father’s parental rights to
Kevin and Karen
In October 2017, the Department filed a petition to terminate Mother’s and
Father’s parental rights to Kevin, and the trial court appointed the Department
Kevin’s temporary managing conservator. Kevin was then placed with a foster-to-
adopt father.
The trial court then approved and required Mother and Father to follow
family service plans prepared for them by the Department. As relevant here, the
plans required Mother and Father to remain drug-free, submit to random drug
testing, undergo substance abuse treatment, and attend Narcotics Anonymous
meetings. The plans included the statutorily-required admonishment that failure to
comply could result in the termination of their parental rights. See TEX. FAM. CODE
§ 263.102(b).
Mother and Father did not comply with their plans. Over the following year-
and-a-half, they consistently failed (or failed to appear for) random drug testing,
5
testing positive for cocaine and related substances throughout the entire case.5
Although Mother and Father periodically provided negative urine samples, Father
never provided a negative hair follicle sample and Mother provided a negative
sample only once.6 Moreover, the levels of cocaine in their hair follicle samples did
not decrease steadily (indicating sobriety) but rather fluctuated up and down,
(indicating periodic drug use).
Mother and Father continued to test positive after completing substance
abuse treatment, and, as a result, their plans were amended to require them to
undergo additional treatment. Although both of them claimed to have attended NA
meetings, they failed to provide proof to the caseworker.
In March 2018, during the pendency of Kevin’s termination proceeding,
Mother gave birth to Karen. Before Mother and Karen were discharged from the
5
Father tested positive on (1) January 10, 2018, (2) February 23, 2018, (3), August
20, 2018, (4) October 10, 2018, and (5) December 5, 2018. Father failed to submit
to drug testing and was thus presumed to have tested positive on (1) February 7,
2018, (2) March 28, 2018, (3) April 2, 2018, (4), May 7, 2018, (5) May 31, 2018,
(6) June 5, 2018, (7) September 14, 2018, (8) September 25, 2018, (9) November
16, 2018, (10) November 29, 2018, and (11) December 21, 2018. Mother tested
positive on (1) October 27, 2017, (2) December 13, 2017, (3) February 23, 2018,
(4) April 2, 2018, (5) October 10, 2018, and (6) December 5, 2018. Mother failed
to submit to drug testing and was thus presumed to have tested positive on (1)
February 7, 2018, (2) March 28, 2018, (3) May 7, 2018, (4) May 31, 2018, (5)
June 5, 2018, (6) September 14, 2018, (7) September 25, 2018, (8) November 16,
2018, (9) November 29, 2018, and (10) December 21, 2018.
6
On August 20, 2018, Mother underwent a urinalysis and hair follicle test, both of
which were negative. However, Mother later relapsed and failed several
subsequent drug tests.
6
hospital, the Department received a referral accusing Mother and Father of
neglectful supervision of Karen. The referral was based on their continued drug
use—including drug use during Mother’s pregnancy—and evidence that Karen had
exhibited signs of drug withdrawals after birth.
Later that month, the Department filed a petition to terminate Mother’s and
Father’s parental rights to Karen, and the trial court appointed the Department
Karen’s temporary managing conservator. Karen was placed with the same foster
father as Kevin. Kevin and Karen were then temporarily removed from the foster
placement and placed with fictive kin, the children’s godparents. However, the
placement was ultimately unsuccessful because of an adverse development in the
godparents’ financial situation, and the children were placed back with the foster
father, where they remained for the rest of the case.
The case is tried to the bench
The two cases were tried jointly in March 2019. At the bench trial, the
Department presented a number of exhibits, including Mother’s and Father’s drug
test results and criminal records. Four witnesses testified: Mother, Father, the
caseworker, and a court-appointed child advocate.
Mother’s testimony. Mother testified that Kevin had come to the
Department’s attention because she had “jumped out a window” when police
arrived at the hotel room they were living in August 2017. Mother admitted that
7
she had been trying to flee from the police because she knew she had an
outstanding warrant and did not want to go to jail. Mother admitted that, when she
fled from the police, she left Kevin and Father’s daughter alone in the hotel room.
But she insisted that she had called someone to watch the children and that the
person was en route when she jumped out the window. Mother did not identify
specifically who she had called or explain that person’s relationship to her or the
children.
Mother testified that Father was not in the hotel room at that time because he
had been arrested the day before. She explained the incident where she was in a
vehicle that was pulled over by the police and thereafter ran away. She further
explained that Father was subsequently arrested on warrants when the police came
to the hotel room where they were staying. Mother testified that the family had
been living in the hotel for about six months and that, at the time of the arrests, she
was not working, but Father was working as a security guard at the same hotel.
Mother admitted that she had her parental rights to her oldest son terminated
in 2012. During the pendency of that proceeding, she met and began dating Father.
And once the termination was finalized, she began to use hard drugs, including
crack cocaine.
Mother admitted to extensive past drug use, and she admitted to past drug
dealing, including drug dealing as late as 2017 after Kevin was born. She denied
8
any drug use after her release from jail in August 2017 and claimed that any
subsequent positive tests were attributable to drug use that had occurred before that
date. She was unable to explain why the levels of cocaine in her urine and hair
follicle samples periodically spiked.
Father’s testimony. Father admitted that, when he was arrested at the hotel
in August 2017, there were drugs in the hotel room. He insisted, however, that the
drugs belonged to an unidentified third party and not to Mother or to him.
Like Mother, Father admitted to extensive past drug use. He admitted that he
began using crack cocaine before meeting Mother in 2012 and that he used the
drug regularly over many years. He admitted to regular use of the drug in 2016
after Kevin was born. And he admitted to using the drug in 2017 with Mother
when she was pregnant with Karen.
Father further admitted to using the drug during the pendency of the
termination proceedings. Father admitted that he had relapsed during the pendency
of the case, but he claimed that he stopped using the drug in April 2018. However,
like Mother, Father was unable to explain why the level of cocaine in his samples
spiked after that date.
Father testified that he provided financially for both himself and Mother.
Father testified that they lived apart because of the possibility of Mother’s prior
termination affecting the outcome of these cases. However, Father admitted that
9
Mother would look after the children while he was at work if the court would
return the children to him. Father testified that it was his request and desire for the
court to return the children to both of them.
The caseworker’s testimony. The caseworker testified that the
Department’s goal was termination because the parents had not shown that they are
able to stop using cocaine. The Department was therefore concerned that the
parents would continue to abuse drugs and not be able to properly care for their
children. The caseworker explained that this was the parents’ second attempt at
group counseling “because they had to be reassessed due to them continuing to test
positive.” The parents had also failed to complete NA as required. The caseworker
disagreed with Father’s testimony that no one ever explained to him that he had to
attend NA meetings. The caseworker testified that she met Father in person each
month and discussed the remaining requirements of Father’s plan, including the
requirement to attend NA meetings. The caseworker further testified that neither
parent provided her with proof that they had attended NA meetings.
The caseworker testified that the children were placed with a foster-to-adopt
parent and that the adoption could not take place if the parents’ rights were not
terminated. The caseworker explained that the children were initially placed with
the foster father but were then removed and placed with fictive kin, the children’s
godparents. However, the placement with the children’s godparents was ultimately
10
unsuccessful because the godmother lost her job, thereby preventing the couple
from supporting the children financially. The children were then returned to the
foster father, who cared for them for the remainder of the proceedings. The
caseworker testified that the children were very well bonded to their foster father
and called him “Dad.” She further testified that the current foster parent was
“great” and was very engaged with the children. The caseworker believed that the
foster father communicated very well with her regarding the children’s needs, that
he loved them, and that the placement would be a very good one for the children.
The caseworker testified that the Department believed termination was in the
children’s best interest because the children were young and bonded with a stable
and loving foster parent and because the parents had been given the opportunity to
show they could live drug free but continued to test positive.
The advocate’s testimony. The advocate’s testimony was similar to and
corroborated the caseworker’s. The advocate recommended that the parents’ rights
be terminated because of their continued drug use and failure to complete services.
Because of the parents’ continued drug use, the advocate did not believe the
parents could provide a safe environment and stable home for the children.
The advocate agreed with the current placement. She testified that there was
mutual love between the children and the foster father, who, according to the
advocate, had done a “great job” in caring for the two young children. The
11
advocate noted that he would not be able to adopt the children if Mother’s and
Father’s parental rights were not terminated.
After the trial, the trial court entered decrees terminating Mother’s and
Father’s parental rights to Kevin and Karen. In the decrees, the trial court found
that termination of Mother’s parental rights was justified under subsections (D),
(E), (M), and (O) and was in the children’s best interest. The trial court found that
termination of Father’s parental rights was justified under subsections (D), (E), and
(O) and was in the children’s best interest.
Each parent filed a notice of appeal. Father’s attorney filed a brief, and
Mother’s attorney filed a motion to withdraw and Anders brief.
Termination of Father’s Rights
In four issues, Father contends that the evidence is legally and factually
insufficient to support the trial court’s findings that (1) termination was justified
under subsection (D), (2) termination was justified under subsection (E), (3)
termination was justified under subsection (O), and (4) termination was in the
children’s best interest.
A. Applicable law and standard of review
Under Section 161.001 of the Family Code, the Department may petition a
trial court to terminate a parent-child relationship. The trial court may grant the
petition if the Department proves, by clear and convincing evidence, that (1) the
12
parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the child’s best interest. TEX. FAM.
CODE § 161.001(b). Clear and convincing evidence is “the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the truth of the allegations sought to be established.” Id. § 101.007; see also In
re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
Section 161.001 lists 21 acts and omissions justifying termination of the
parent-child relationship. TEX. FAM. CODE § 161.001(b)(1). As relevant here,
termination is justified under Section 161.001 if the parent:
• knowingly places or knowingly allows the child to remain in conditions or
surroundings that endanger the physical or emotional well-being of the child,
id. § 161.001(b)(1)(D);
• engages in conduct or knowingly places the child with persons who engage
in conduct that endangers the physical or emotional well-being of the child,
id. § 161.001(b)(1)(E);
• has had his or her parental rights to another child terminated based on a
finding of endangerment under subsection (D) or (E),
id. § 161.001(b)(1)(M); or
• fails to comply with the provisions of a court order that specifically establish
the actions necessary for the parent to obtain the return of the child,
id. § 161.001(b)(1)(O).
Only one predicate finding under Section 161.001(b)(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.M., 495 S.W.3d 573, 579 (Tex. App.—Houston
13
[1st Dist.] 2016, pet. denied). However, when, as here, a parent’s rights are
terminated based on multiple predicate findings, including an endangerment
finding, the parent is entitled to appellate review of the endangerment finding
because of the consequences that the finding could have on his or her parental
rights to other children7—even if another finding alone is sufficient to uphold
termination. In re N.G., No. 18-0508, 2019 WL 2147263, at *2 (Tex. May 17,
2019).
In determining whether termination is in the child’s best interest, courts
consider the nine nonexclusive factors listed by the Supreme Court of Texas
in Holley v. Adams: (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 parent’s acts or omissions that may indicate the existing parent-child
7
Because only one ground is required to terminate parental rights and subsections
(D) and (E) have consequences for termination of parental rights as to children in a
future proceeding under subsection (M), terminating parental rights under
subsections (D) and (E) implicates significant due process concerns for a parent’s
care, custody, and control of his or her children. In re Z.M.M., No. 18-0734, 2019
WL 2147266, at *1 (Tex. May 17, 2019).
14
relationship is not a proper one; and (9) any excuse for the parent’s acts or
omissions. 544 S.W.2d 367, 372 (Tex. 1976). The same evidence of acts or
omissions used to establish ground for termination under Section 161.001(b)(1)
may be probative in determining in the best interests of the child. In re L.M., 104
S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
In a legal-sufficiency review in a parental-rights-termination case, 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 re J.F.C., 96 S.W.3d at 266. We assume that the factfinder
resolved disputed facts in favor of its finding if a reasonable factfinder could do so,
disregarding all evidence that a reasonable factfinder could have disbelieved or
found incredible. Id.
In a factual-sufficiency review in a parental-rights-termination case, we
determine whether the evidence is such that 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). By focusing on whether a reasonable
factfinder could form a firm conviction or belief, the appellate court maintains the
required deference for the factfinder’s role. Id. at 26. An appellate court’s review
must not be so rigorous that the only factfindings that could withstand review are
those established beyond a reasonable doubt. Id. We should consider whether
15
disputed evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. 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.
B. Endangerment under Section 161.001(b)(1)(E)
Because it affects our analysis of his other issues, we begin with Father’s
second issue, in which he contends that there is legally and factually insufficient
evidence to support the trial court’s finding under subsection (E) that he “engaged
in conduct or knowingly placed the child[ren] with persons who engaged in
conduct which endangers the physical or emotional well-being of the child[ren].”
TEX. FAM. CODE § 161.001(b)(1)(E).
Subsection (E) focuses on conduct. For termination to be justified under
subsection (E), the parent must have engaged, or knowingly placed the child with a
person who engaged, in endangering conduct—i.e., conduct that exposes the child
to loss or injury. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Termination under
subsection (E) must be based on more than a single act or omission; rather, the
statute requires a voluntary, deliberate, and conscious course of conduct by the
16
parent. In re J.T.G., 121 S.W.3d at 125; see TEX. FAM. CODE § 161.001(b)(1)(E). It
is not necessary, however, that the parent’s conduct be directed at the child or that
the child actually suffer injury. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987); In re J.T.G., 121 S.W.3d at 125. The specific danger to the
child’s well-being may be inferred from parental misconduct standing alone. Boyd,
727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth
2004, pet. denied).
A finding of endangerment under subsection (E) may be supported by
evidence that:
• the parent used illegal narcotics before or during the termination
proceedings,8
• the parent knowingly left the child in the care of a known user of illegal
narcotics, or
• the parent engaged in criminal conduct that resulted in, or could have
resulted in, a sentence of confinement to jail or prison.9
The testimony and documentary evidence show that Father engaged in these
three types of endangering conduct.
8
See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); Walker v. Texas Dep’t of
Family & Protective Servs., 312 S.W.3d 608, 618 (Tex. App.—Houston [1st Dist.]
2009, pet. denied).
9
In re A.A.M., 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no
pet.).
17
First, the evidence shows that Father abused illegal narcotics—specifically,
crack cocaine—both before and during the termination proceedings. Father
admitted to regularly using cocaine before the Department received the referral for
Kevin in 2017. He admitted to using cocaine both with friends and with Mother—
including while Mother was pregnant. Father also admitted to using cocaine during
the pendency of the termination proceedings. Father testified that he initially
stopped using cocaine and completed his substance abuse treatment. But he
admitted that he later relapsed in October 2018.
The drug tests presented by the Department confirmed that Father continued
to use cocaine after the Department was appointed temporary managing
conservator of Kevin in 2017 and after the Department was appointed temporary
managing conservator of Karen in 2018. Although he periodically provided
negative urine samples, Father never provided a negative hair follicle sample.
Every hair follicle sample provided by Father during the pendency of the
proceedings tested positive for cocaine or related substances, which shows that at
no relevant time was Father completely drug free. Moreover, throughout the
proceedings, the level of cocaine in his hair follicle samples did not decrease in a
continuous fashion. Rather, they fluctuated up and down, reflecting periods of
sobriety and relapse. Finally, Father failed to submit to random drug testing on 11
18
separate occasions and was presumed to have tested positive for drugs on each of
these dates.
The evidence of Father’s unabated drug use is legally and factually sufficient
to support the trial court’s finding that Father “engaged in conduct . . . which
endangers the physical or emotional well-being of the child[ren].” TEX. FAM. CODE
§ 161.001(b)(1)(E); see In re J.O.A., 283 S.W.3d at 345 (“[A] parent’s use of
narcotics and its effect on his or her ability to parent may qualify as an endangering
course of conduct.”); Walker, 312 S.W.3d at 617 (“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).”); see also In re K.R.G., No. 01-
16-00537-CV, 2016 WL 7368082, at *7 (Tex. App.—Houston [1st Dist.] Dec. 15,
2016, pet. denied) (mem. op.) (“Notably, illegal narcotics use creates the
possibility that a parent will be impaired or imprisoned, and thus, incapable of
parenting, supporting termination of parental rights under subsection E.”); In re
K.C.F., No. 01-13-01078-CV, 2014 WL 2538624, at *10 (Tex. App.—Houston
[1st Dist.] June 5, 2014, no pet.) (mem. op.) (“Courts have also held that 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, may support a finding that the parent
engaged in conduct that endangered the child’s physical or emotional well-
being.”).
19
Second, Father left Kevin in the care of Mother, a person who both sold and
used crack cocaine. Although Father denied knowing that Mother sold cocaine, the
evidence permitted the trial court, as factfinder, to disregard Father’s testimony and
find that Father was aware of Mother’s drug dealing. And even if Father was
unaware that Mother sold cocaine, it is undisputed that he knew Mother was a
heavy user of crack cocaine, which, as just discussed, is conduct sufficient to
support a finding of endangerment under subsection (E). Thus, the evidence that
Father left Kevin in the care of Mother is legally and factually sufficient to support
the trial court’s finding that Father “knowingly placed the child[ren] with [a]
person[] who engaged in conduct which endangers the[ir] physical or emotional
well-being.” TEX. FAM. CODE § 161.001(b)(1)(E).
Finally, the evidence of Father’s extensive criminal record supports the trial
court’s finding of endangering conduct. “Although incarceration alone will not
support termination of parental rights, evidence of criminal conduct, convictions,
and imprisonment may support a finding of endangerment.” In re K.R.G., 2016
WL 7368082, at *7. And “[a]lthough [Father]’s convictions and terms of
imprisonment occurred prior to the births of the children, courts look to what a
parent did both before and after the children’s births to determine whether
termination of parental rights is necessary.” Id. at *8. As we have explained,
“conduct that routinely subjects children to the probability that they will be left
20
alone because a parent is jailed endangers both the physical and emotional well-
being of the children.” Id.; see also In re T.G.R.–M., 404 S.W.3d. 7, 14–15 (Tex.
App.–Houston [1st Dist.] 2013, no pet.) (considering “charges stemming from . . .
two arrests [that] were ultimately dismissed” and noting each time mother was
confined “she was absent from [child’s] life and was not able to provide for
[child’s] physical and emotional needs”). Thus, “a parent’s narcotics use, and the
imprisonment relating to it, harm the physical and emotional well-being of children
and the parent-child relationship.” In re K.R.G., 2016 WL 7368082, at *8. The
evidence of Father’s prior convictions and other criminal conduct, while perhaps
insufficient alone to support a finding of endangerment, is evidence that the trial
court could have reasonably considered together with the evidence of the parents’
consistent drug use in finding that termination was justified under subsection (E).
We hold that there is legally and factually sufficient evidence to support the
trial court’s finding that termination of Father’s parental rights to Kevin and Karen
was justified on grounds of endangerment under subsection (E). Because we have
determined that sufficient evidence supports termination under at least one
predicate that could underlie a future subsection (M) termination, we see no basis
for addressing Father’s first issue, in which he contends the evidence is legally and
factually insufficient to support the trial court’s finding under subsection (D), or
his third issue, in which he contends the evidence is legally and factually
21
insufficient to support the trial court’s finding under subsection (O). Accordingly,
we overrule Father’s second issue and do not reach Father’s first and third issues.
We turn now to the trial court’s best-interest finding.
C. Best-interest finding
In his fourth issue, Father contends that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of his parental
rights was in the children’s best interest. To determine the sufficiency of the
evidence, we consider the evidence relating to the relevant Holley factors.
First factor—the desires of the children. There is no direct evidence about
the children’s desires because they were less than two years old at the time of trial.
See Holley, 544 S.W.2d at 371. “When children are too young to express their
desires, the fact finder may consider that the children have bonded with the foster
family, are well-cared for by them, and have spent minimal time with [their]
parent.” In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014,
no pet.). Kevin was eight months old when placed with his foster father. Karen was
a newborn, less than a month old. At the time of trial, they had lived with their
foster father for the majority of their lives, and the caseworker and advocate both
testified that they had bonded with him. The caseworker and advocate further
testified that the foster father loved both children and wished to adopt them. This
evidence weighs in favor of the trial court’s best-interest finding.
22
Second factor—the emotional and physical needs of the children now
and in the future. The evidence relevant to the second factor includes Father’s
drug use, discussed at length above. See Holley, 544 S.W.2d at 371–72 (parent’s
drug use relevant to second factor); In re A.C., 394 S.W.3d 633, 642 (Tex. App.—
Houston [1st Dist.] 2012, no pet.) (concluding that past and ongoing drug use
weighed in favor of conclusion that termination of parental rights is in child’s best
interest). Father’s extensive use of crack cocaine in the years leading up to the
termination proceedings, and his continued use of crack cocaine during the
pendency of the proceedings, “show[s] a pattern of conduct that subjects [the]
child[ren] to an uncertain and unstable life, endangering the[ir] physical and
emotional well-being.” In re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *6
(Tex. App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.). This
evidence weighs in favor of the trial court’s best-interest finding.
Also relevant to the second factor is Father’s criminal record. A parent’s
repeated arrests and incarcerations is evidence that the parent will be unable to
satisfy his children’s emotional and physical needs. See In re T.G.R.-M., 404
S.W.3d at 15 (noting that each time mother was jailed, she was absent from child’s
life and unable to provide for child’s physical and emotional needs); see also In re
K.R.G., 2016 WL 7368082, at *11 (evidence of repeated of repeated arrests and
incarcerations can support trial court’s best-interest finding). Here, Father’s
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criminal record includes at least five convictions and even more arrests—including
the arrest resulting in the Department referral accusing Father and Mother of
physical neglect and neglectful supervision of Kevin. That arrest, Father explained
at trial, was for a probation violation. The underlying charge was possession of
crack cocaine, which, Father further explained, he “took” to protect Mother from
going to jail while pregnant with Kevin. This evidence weighs in favor of the trial
court’s best-interest finding.
Further evidence relevant to the second factor includes the condition of the
hotel room in which Father, Mother, and Kevin were found living. The
Department’s report described the room as covered in dog feces and trash. In re
K.R.G., 2016 WL 7368082, at *10 (considering “very dirty” and “unsanitary”
condition of home in which children were found in determining whether parent
could satisfy children’s physical and emotional needs). The unsanitary condition of
the hotel room weighs in favor of the trial court’s best-interest finding.
Third factor—the emotional and physical danger to the children now
and in the future. The evidence relevant to the second factor is also relevant to the
third factor. To repeat, this evidence includes: (1) Father’s drug use, see Holley,
544 S.W.2d at 371–72 (parent’s drug use relevant to third factor); In re A.C., 394
S.W.3d at 642 (same); (2) Father’s criminal record, In re K.R.G., 2016 WL
7368082, at *10 (parent’s criminal record relevant in determining emotional and
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physical danger to children); In re V.V., 349 S.W.3d 548, 554 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied) (“Intentional criminal activity that exposes a
parent to incarceration is conduct that endangers the physical and the emotional
well-being of a child.”); and (3) the unsanitary condition of the hotel room in
which Father, Mother, and Kevin were found living. This evidence supports the
trial court’s best-interest finding.
Fourth factor—the parental abilities of the individuals seeking custody.
The evidence relevant to the fourth factor includes some of the evidence discussed
above, namely: (1) Father’s drug use, see Holley, 544 S.W.2d at 371–72 (parent’s
drug use relevant to fourth factor); In re K.P., 498 S.W.3d 157, 174 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied) (“inability to remain sober” relevant to
fourth factor); and (2) the condition of the hotel room, see In re K.R.G., 2016 WL
7368082, at *11 (condition of home relevant to assessing parental ability). Again,
this evidence weighs in favor of the trial court’s best-interest finding.
Fifth factor—the programs available to assist the individuals seeking
custody to promote the best interest of the children. The trial court may
properly consider whether the parent complied with the court-ordered service plan
for reunification with the child. See In re E.C.R., 402 S.W.3d 239, 249 (Tex.
2018). Father’s compliance with certain court-ordered tasks during the termination
proceedings weighs in his favor and against the trial court’s best-interest finding.
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However, the evidence shows that he was unable to comply with the plan’s most
important requirements—to refrain from illegal drug use and to provide a drug-free
environment for his children. This evidence weighs in favor of trial court’s best-
interest finding.
Sixth factor—the plans for the children by the individuals seeking
custody. Because Mother’s prior termination made it more likely that her parental
rights to the children would be terminated in this case, Mother and Father began
living separately, reasoning that the arrangement would make it more likely that at
least Father’s rights would not be terminated. But when asked who would care for
the children while Father was at work in the event the children were returned to
Father alone, Father testified that Mother would care for him, demonstrating that
Father did not have a realistic plan in place for the care of the children. In contrast,
the foster father had enrolled the children in daycare, which provided suitable care
for the children while the foster father was at work. This evidence weighs in favor
of the trial court’s best-interest finding.
Seventh factor—the stability of the home or proposed placement. The
evidence relevant to the seventh factor includes, once again, Father’s drug use and
the condition of the hotel room in which Father, Mother, and Kevin were found
living. The evidence also includes Father’s failure to provide the caseworker of
proof of stable housing. Although Father claimed to be living with his brother and
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brother’s teenage son in their apartment, Father admitted that he never provided the
caseworker with the lease agreement and never informed her of the address so she
could inspect the premises. This evidence supports the trial court’s best-interest
finding.
In contrast, the caseworker and advocate both testified that the foster father
provided the children with a stable, loving, and drug-free environment. They
further testified that the foster father had demonstrated his commitment to the
children by taking them back after the failed placement with the children’s
godparents. The evidence that the children’s foster father intends to adopt them and
provide them with a stable and permanent placement supports the trial court’s
finding. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet.
denied) (stating that stability and permanence are important to upbringing of child
and affirming finding that termination was in child’s best interest when child was
thriving in foster care).
We hold that there is legally and factually sufficient evidence to support the
trial court’s finding that termination of Father’s parental rights to Kevin and to
Karen was in the children’s best interest.
We overrule Father’s fourth issue.
Termination of Mother’s Rights
Mother’s court-appointed appellate counsel has moved to withdraw and has
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filed an Anders brief, stating that, in his professional opinion, the appeal is without
merit, and there are no arguable grounds for reversal. See Anders, 386 U.S. at 744.
Anders procedures are appropriate in an appeal from a trial court’s final
order in a parental-rights termination suit. In re K.D., 127 S.W.3d 66, 67 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). Counsel has certified that he delivered a
copy of the brief to Mother and informed her of her right to examine the appellate
record and to file a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex.
Crim. App. 2008). Mother did not timely file a response and the Department
waived its right to respond.
The brief submitted by Mother’s appointed appellate counsel states his
professional opinion that no arguable grounds for reversal exist and that any appeal
would therefore lack merit. See Anders, 386 U.S. at 744. Counsel’s brief meets the
minimum Anders requirements by presenting a professional evaluation of the
record and stating why there are no arguable grounds for reversal on appeal. See
id.; Schulman, 252 S.W.3d at 406–07.
When we receive an Anders brief from an appointed attorney who asserts
that no arguable grounds for appeal exist, we determine independently whether
arguable grounds exist by conducting our own review of the entire record. Johnson
v. Dep’t of Family & Protective Servs., Nos. 01-08-00749-CV & 01-08-00750-CV,
2010 WL 5186806, at *1 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.)
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(mem. op.); see In re K.D., 127 S.W.3d at 67; In re D.E.S., 135 S.W.3d 326, 330
(Tex. App.—Houston [14th Dist.] 2004, no pet.). If we determine that arguable
grounds for appeal exist, we abate the appeal and remand the case to the trial court
to allow the appointed attorney to withdraw. See Johnson, 2010 WL 5186806, at
*2. Then, the trial court appoints another attorney to present all arguable grounds
for appeal. See id. On the other hand, if our independent review of the record leads
us to conclude that the appeal is frivolous, we may affirm the trial court’s judgment
by issuing an opinion in which we explain that we have reviewed the record and
find no reversible error. See id.
Here, we have independently reviewed the record and conclude that there
are no arguable grounds for review, that no reversible error exists, and therefore
Mother’s appeals are frivolous. See Anders, 386 U.S. at 744; In re A.M., 495
S.W.3d 573, 582 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). Accordingly,
we affirm the trial court’s decrees terminating Mother’s parental rights to Kevin
and Karen.
However, we deny Mother’s counsel’s motion to withdraw because this is a
parental termination case. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (holding
that Anders brief in parental termination is not “good cause” sufficient to justify
counsel’s withdrawal); In re A.M., 495 S.W.3d at 582 (same). Counsel’s duties to
his client extend through the exhaustion or waiver of “all appeals.” TEX. FAM.
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CODE § 107.016(3)(B). If Mother chooses to pursue a petition for review to the
Supreme Court of Texas, “appointed counsel’s obligations can be satisfied by
filing a petition for review that satisfies the standards for an Anders brief.” In re
P.M., 520 S.W.3d at 27–28.
Conclusion
We affirm the decrees of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Hightower.
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