in the Interest of I.R.Z, a Child v. Texas Department of Family and Protective Services ( 2022 )

Affirmed and Memorandum Opinion filed December 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00431-CV
IN THE INTEREST OF I.R.Z, A CHILD
On Appeal from the 313th District
Court Harris County, Texas
Trial Court Cause No. 2021-00864J
MEMORANDUM OPINION
Appellant D.P. (Mother) appeals the trial court’s final decree terminating her
parental rights to I.R.Z (Isaac). The trial court terminated Mother’s parental rights
under Sections 161.001(b)(1)(D), (E), (N), and (O) of the Family Code and
concluded that termination was in the best interest of Isaac. See Tex. Fam. Code
§§ 161.001(b)(1)(D), (E), (N), & (O); 161.001(b)(2). Mother challenges the trial
court’s final decree, arguing the evidence is legally and factually insufficient to
support the trial court’s findings.1 Mother also challenges whether the evidence
established that she was unable to complete her services. We affirm.
BACKGROUND
Isaac was born to Mother and father in May 2021. While in the hospital for
Isaac’s birth, both Mother and Isaac tested positive for cocaine and opiates. Mother
also tested positive for benzos and marijuana at that time. Isaac was placed in the
neonatal intensive care unit (NICU) for two weeks because he was exhibiting
symptoms of withdrawal. Isaac was reportedly agitated, had a high heart rate, and
was jittery. Mother and father visited Isaac while he was in the NICU.
Upon discharge, from approximately June to November 2021, Isaac was
placed with a foster family. Mother and father did not visit or attempt to visit Isaac
during this time. In October 2021 through the time of trial, Mother was in jail
awaiting trial. Mother has not seen Isaac since he was two weeks old. In November
2021, Isaac’s paternal grandmother took Isaac into her care. Mother and father’s
daughter is also in grandmother’s care. At the time of trial, Isaac was living with
grandmother.
At trial, an early childhood interventionist testified that she began working
with Isaac when he was approximately one month old. At the time of trial in April
2022, Isaac was about eleven months old. The interventionist testified that Isaac
was developmentally delayed in his gross motor skills of crawling, rolling, and
sitting. Isaac was also delayed in fine motor skills such as his ability to use his hands
and fingers. The interventionist testified without objection that Isaac experienced
substance exposure in utero and that he had spent time in the NICU before being
1
Father’s parental rights were also terminated but he does not appeal the trial court’s final
decree.
2
discharged. The childhood interventionist testified that the potential cause of Isaac’s
delays was the substance exposure, but she was not qualified to provide an opinion
on the cause. Her recommendation was to refer Isaac to a neurologist to address the
issues that she was seeing with Isaac’s development and to determine the root cause.
The interventionist also testified that Isaac suffered from plagiocephaly and
brachycephaly, and Isaac’s plagiocephaly was “severe.” The interventionist testified
that Isaac’s grandmother has secured the necessary medical interventions to address
the plagiocephaly. Grandmother is also working “diligently” on Isaac’s gross and
fine motor skills and is following through with all the interventionist’s
recommendations and strategies for Isaac.
A conservatorship worker testified, without objection, that Isaac “came into
care” because he and Mother tested positive at birth for cocaine and opiates. The
worker testified that Mother tested positive for benzos and marijuana in addition to
the opiates and cocaine. The worker also testified that Isaac exhibited symptoms of
withdrawal and that he was placed in the NICU and given morphine to relieve his
symptoms. She testified that Mother and father did not visit Isaac once he was
discharged but that Mother did request photos of Isaac. Isaac has been with his
grandmother since he was six-months old.
The worker also testified that a parenting plan was created for Mother in late-
May, early-June 2021. The worker attempted to engage Mother in services through
calls and text messages, but most of the attempts went unanswered. The worker
testified that she submitted referrals to Mother for services prior to Mother’s
incarceration and Mother did not attend. The worker was not able to provide Mother
with her plan until early 2022. Mother’s plan involved parenting classes, a
psychological examination, individual therapy, a substance abuse assessment, “case
involvement,” stable housing, legal income, random drug screening, and narcotics
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or alcoholics anonymous. All of these services were ordered by the trial court. and
none were completed by Mother. The worker testified that she met with Mother in
jail and reviewed the plan with Mother, but because she could not physically hand
Mother the plan in the jail, the worker also emailed the plan to her. Mother did not
indicate to the worker that Mother had any questions about the plan. The worker
testified that Mother attempted to complete a parenting course while in jail but was
discharged for non-compliance. The worker testified that Mother could have
completed some of the plan from jail and that there is a “kiosk” in the jail that Mother
could have used to register for different services. The kiosk is where Mother would
have registered for the parenting class she started while incarcerated. The worker
testified that other than the parenting class and the psychological evaluation, she was
not sure what other services Mother could complete from jail. The worker agreed
that Mother did seem interested in Isaac and seeing her child but was unable to do
so from jail.
The worker testified that Mother’s other children did not reside with her and
were in the care of others, but the worker was not sure about the legal status of those
children and whether Mother’s parental rights had been terminated. The worker
testified that Isaac and grandmother have bonded and that grandmother takes Isaac
to all his appointments and provides for his needs. There are no concerns about
Isaac’s placement with grandmother, and Isaac is well taken care of.
Mother testified that at the time of trial she was incarcerated for an aggravated
robbery with a deadly weapon charge. Her “understanding” of why Isaac came into
the Department’s care was because Isaac and she were positive for cocaine and
opiates. Mother testified that she took prenatal vitamins but did not have a medical
provider during her pregnancy. Mother testified that she visited Isaac while he was
in the NICU but not at all once he was in foster care. The last time she saw Isaac
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was when he was two weeks old. Mother testified that the caseworker reached out
and attempted to engage Mother in both visits and services, that she did not engage
in services, and that she tried to visit Isaac. Mother also testified that she did not
submit to any drug testing. Mother further testified that Isaac is well cared for by
his grandmother and all of his needs are being met. Prior to Isaac’s birth, Mother
testified that she stayed in hotels and had completed a jail sentence, gotten “clean,”
and, once home, relapsed.
Mother testified that during her current incarceration she had completed
“about a month and a half” of a ninety-day program called “Mentoring Moms.”
Mother was participating in “AA” but there were no other services she could
complete while in jail. Mother testified that she did not know whether she could or
needed to complete a psychiatric evaluation from jail. Mother did not believe that
terminating her rights was in Isaac’s best interest because she wanted “to do anything
possible to be part of his life and not have [her] parental rights revoked because [she
is] willing to do whatever it takes . . . to be his parent.” Mother’s testified her
incarceration meant she did not “have the option” to do what she needed to do to get
Isaac back. Mother stated that her plan is to obtain employment and stable housing
and to be part of Isaac’s life once released.
When asked whether she had used any substances during her pregnancy with
Isaac while she knew she was pregnant, Mother invoked her Fifth Amendment right
and refused to answer. When asked whether she used any illegal drugs while
pregnant with Isaac, Mother invoked her Fifth Amendment right and refused to
answer. When asked whether Mother has “a criminal history” in the state of New
Jersey, Mother invoked her Fifth Amendment right and refused to answer.
5
Father testified that Isaac came into care due to “substance abuse issues” but
asserted his Fifth Amendment right when questioned directly about Mother’s
substance abuse while pregnant.
An advocacy supervisor testified that termination is in the best interest of Isaac
because of Isaac’s age and vulnerability due to his “extensive and immediate care
needs” that are unable to be met by his parents. The supervisor also testified that
grandmother has shown she can provide for these needs. She testified that
grandmother’s home is safe, Isaac has his own room, and his basic needs are being
met. The supervisor testified that Mother has not provided any kind of assistance to
Isaac.
Grandmother testified that Isaac had been in her care for five months at the
time of trial. Grandmother is Isaac’s paternal grandmother and also is the caregiver
of Isaac’s older sister. The older sister is also a child of Mother and father and
subject to a prior family case in New Jersey. Grandmother testified that Isaac had
bonded with her, his older sister, and grandmother’s life partner. Grandmother stays
home with the children and takes Isaac to all of his medical appointments.
Grandmother testified that she is willing to adopt Isaac and that her life partner is
agreeable to that. Grandmother indicated that she had the financial means to take
care of Isaac.
PREDICATE GROUND FOR TERMINATION
In four issues, Mother argues that the evidence is legally and factually
insufficient to support termination of her parental rights under Section
161.001(b)(1)(D), (E), (N) and (O).
6
A. General Legal Principles
Parents’ rights to raise and nurture their children are protected by the United
States Constitution and the Texas Constitution. In re J.F.-G., 627 S.W.3d 304, 311
(Tex. 2021). To deny a parent these rights, the State must establish by clear and
convincing evidence both a legal ground to terminate the parent’s right and that the
termination is in the best interest of the child. Id.; see also Tex. Fam. Code
§ 161.001.
While this high evidentiary burden requires a heightened standard of review
on appeal, it does not dispel the deference that an appellate court must grant to the
fact finder. In re J.F.-G., 627 S.W.3d at 311–12. This review “take[s] into
consideration whether the evidence is such that a fact finder could reasonably form
a firm belief or conviction about the truth of the matter on which the State bears the
burden of proof.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Even in parental
termination cases, the appellate court must defer to the trial court’s factual
determinations because the fact finder is the sole arbiter of the witnesses’ credibility
and demeanor. In re J.F.-G., 627 S.W.3d at 312. We assume the fact finder resolved
conflicting evidence in favor of its finding if a reasonable fact finder could do so.
Id. We disregard all evidence that a reasonable fact finder could have disbelieved.
Id.
“Evidence is legally sufficient if, viewing all the evidence in the light most
favorable to the fact-finding and considering undisputed contrary evidence, a
reasonable factfinder could form a firm belief or conviction that the finding was
true.” In re A.C., 560 S.W.3d 634, 631 (Tex. 2018). “Factual sufficiency . . . requires
weighing disputed evidence contrary to the finding against all the evidence favoring
the finding.” Id. The court must consider whether disputed evidence “is such that a
reasonable factfinder could not have resolved it in favor of the finding.” Id.7
To terminate a parent’s legal rights to a child, Section 161.001 of the Family
Code requires two findings: (1) the parent’s acts or omissions must satisfy an
enumerated statutory ground for termination; and (2) termination must be in the
child’s best interest. See Tex. Fam. Code §161.001; see also In re J.F.-G., 627
S.W.3d at 312. There are twenty-one possible grounds for termination. See Tex.
Fam. Code § 161.001(b)(1). Only one predicate finding under Section 161.001(b)
is necessary to support a final order of termination when there is also a finding that
termination is in the best interest of the child. See In re A.V., 113 S.W.3d 355, 362
(Tex. 2003); In re F.M.E.A.F., 572 S.W.3d 716, 736 (Tex. App.—Houston [14th
Dist.] 2019, pet. denied). If we conclude that there is sufficient evidence to support
one of the predicate findings, generally we need not address the other predicate
findings. In re F.M.E.A.F., 572 S.W.3d at 736. However, because termination under
Section 161.001(b)(1)(D) or (E) may have implications for a parent’s rights to other
children, we must independently address issues challenging a trial court’s findings
under those subsections. In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). Accordingly,
we first consider Mother’s sufficiency challenge to the trial court’s findings
regarding subsections (D) and (E), and only if such findings cannot be sustained, we
will consider whether statutory grounds for termination exist under subsections (N)
and (O). See generally Tex. R. App. P. 47.1.
Under subsection (D), the endangerment analysis focuses on the evidence of
the child’s physical environment, although the environment produced by the conduct
of the parents bears on the determination of whether the child’s surroundings
threaten his well-being. In re D.M.K., No. 14-13-00230-CV, 2013 WL 5347392, at
*10 (Tex. App.—Houston [14th Dist.] Aug. 27, 2013, no pet.) (mem. op.). Under
subsection (D), we examine the evidence related to the environment of the children
to determine whether the environment was the source of endangerment to the
8
children’s physical or emotional well-being. In re K.A.S., J.G.S., and W.S., II, 131
S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet. denied).
Under subsection (E), a court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence that the parent
engaged in conduct which endangers the physical or emotional well-being of the
child. Tex. Fam Code § 161.001(b)(1)(E). The term “endanger” means the child
was exposed to loss or injury or jeopardized. In re C.A.B., 289 S.W.3d 874, 882
(Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Tex. Dep’t of Human Servs.
v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Endangerment encompasses more than
a threat of metaphysical injury or possible ill effects of a less-than-ideal
environment. Id. (citing Boyd, 727 S.W.2d at 533). The statute does not require that
conduct be directed at a child or cause actual harm; rather, it is sufficient if the
conduct endangers the emotional well-being of the child. In re J.F.-G., 627 S.W.3d
at 312. Termination under subsection (E) must be based on more than a single act
or omission; the evidence must demonstrate a voluntary, deliberate, and conscious
course of conduct by the parent. In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.—
Houston [14th Dist.] 2017, no pet.).
B. Analysis
Mother argues that there is legally and factually insufficient evidence to
support termination under subsection (D) because under this subsection the trial
court must examine the conditions prior to the child’s removal. Mother argues that
because the child was removed from her care at birth, the State cannot establish this
ground because she never had the child in her custody and could not have
endangered him before he was born. Mother argues that because both parents have
had only hospital visits with Isaac and had no say regarding his living conditions,
this predicate ground for termination was not met. Mother also argues that there is
9
legally and factually insufficient evidence to support termination under subsection
(E) because the State failed “to prove that Mother engaged in any conduct that
harmed the child.” Mother argues that the evidence pertaining to her substance
abuse while she was pregnant is “non-existent.”
At trial, Mother testified and admitted that she was “aware” Isaac came into
the Department’s care because she and Isaac tested positive for cocaine and opiates.
Mother did not deny the use of illegal drugs while pregnant and instead invoked the
Fifth Amendment. Other witnesses also similarly testified, without objection, that
Isaac and Mother both tested positive for drugs at the time of Isaac’s birth. Exhibit
18 indicates that Isaac was “born positive for multiple drugs and was diagnosed with
Neonatal Abstinence Syndrome by a physician after birth. He was hospitalized for
two weeks after birth and placed on morphine to ween him off the drugs.” Multiple
witnesses testified, without objection, to Isaac’s stay in the NICU immediately after
his birth because of his positive drug test and his drug exposure. Viewing this
evidence in the light most favorable to the judgment, this evidence supports the trial
court’s finding of endangerment. See In re M.J., No. 14-20-00449-CV, 2020 WL
7038526, at *6 (Tex. App.—Houston [14th Dist.] Dec. 1, 2020, no pet.) (mem. op.)
(“[A] mother’s drug abuse during pregnancy is particularly endangering to an
unborn child’s physical well-being.”); In re K.C.B., 280 S.W.3d 888, 895 (Tex.
App.—Amarillo 2009, pet. denied) (“A mother’s use of drugs during pregnancy may
be conduct which endangers the physical and emotional well being of the child.”);
see also In re A.J.F., No. 07-20-00242-CV, 2021 WL 423442, at *3 (Tex. App.—
Amarillo 2021, no pet.) (mem. op.) (“At birth, A.J.F. tested positive for the presence
of illegal drugs, supporting an inference that S.G.'s drug use created conditions or
surroundings that exposed A.J.F. to the substances while in utero.”); In re K.A.B.M.,
10
551 S.W.3d 275, 287 (Tex. App.—El Paso 2018, no pet.) (“A parent’s use of drugs
may qualify as an endangering course of conduct.”).
Both Mother and father invoked their Fifth Amendment right against self-
incrimination when asked about Mother’s drug use during her pregnancy with Isaac.
The trial court is permitted to make a negative inference based upon the assertion of
the privilege. See In re J.J., No. 14-19-00622-CV, 2020 WL 428859, at *6 (Tex.
App.—Houston [14th Dist.] Jan. 28, 2020, pet. denied) (mem. op.) (“Mother
declined to testify about these charges by asserting her Fifth Amendment right
against self-incrimination, permitting the trial court to draw an adverse inference
concerning the charges.”); V.C. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-
18-00746-CV, 2019 WL 1388725, at *2 (Tex. App.—Austin Mar. 28, 2019, pet.
denied) (mem. op.) (“Although a witness may assert her Fifth Amendment right
against self-incrimination in a civil trial if she is asked a question that might tend to
subject her to criminal responsibility, the jury may make negative inferences based
upon the assertion of the privilege.”).2
While Mother argues that she was not provided with enough time to complete
her services and plan, Mother also admitted that she chose not to engage in her
services for a period of four months prior to her incarceration. The worker testified
that she called and texted Mother about her plan and completing services under the
plan. Mother agreed that the worker contacted her about completing services and
Mother did not engage in those services under the plan. Mother also testified that
she enrolled in a parenting course but failed to complete the course. The worker
testified that Mother was discharged from the course for non-compliance. While the
2
“The State may not, however, obtain ‘an adverse judgment against a party to a civil
proceeding solely because that party refuses to testify on the basis of the privilege against self-
incrimination.’” V.C., 2019 WL 1388725, at *2 n.3 (quoting In re Verbois, 10 S.W.3d 825, 829
(Tex. App.—Waco 2000, orig. proceeding)).
11
evidence demonstrated Mother had limited options for completing her service plan
while incarcerated, Mother failed to demonstrate that she was committed to
completing those services available to her while in jail. Mother’s prior
unwillingness to engage in services, Mother’s discharge from the parenting course
for non-compliance while in jail, and Mother’s failure to complete any services
available to her supports the trial court’s endangerment finding. See In re M.R., 243
S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (upholding termination
under subsections (D) and (E) because the evidence showed that the mother exposed
her children to domestic violence, placed them in an environment of drug abuse, and
refused to participate in her CPS service plan).
The evidence also demonstrated that while Mother was not incarcerated, she
did not attempt to see Isaac. While Mother requested photos of Isaac, Mother did
not attempt to set up any visits with him. Further, there was evidence that prior to
incarceration, Mother’s housing was unstable and that she was staying in hotels.
Mother also testified regarding a prior incarceration wherein she “got clean,” but,
once home, she relapsed. Mother also invoked her Fifth Amendment right when
asked about her prior criminal behavior in New Jersey.
Mother argues that her drug use was only “alleged” and not proven because
there were no drug test results, medical records, or testimony from persons with
knowledge. Much of the testimony regarding Mother and Isaac’s drug test results
was not objected to. There were no objections to the witness testimony or the
admitted exhibits that demonstrated Mother’s illegal drug use while pregnant with
Isaac. Mother did not take any witnesses on voir dire to examine the basis for their
testimony to determine whether the witness had personal knowledge. The only
objections made were to exhibits 15 and 17 on the basis of relevance, as well as to
12
exhibits 17 and 18 on the basis of hearsay. All of these objections were overruled
by the trial court.
On appeal, Mother argues that exhibit 19 is “clearly unverified hearsay” and
should be excluded from the record. However, no objection was lodged to exhibit
19 at trial. Therefore, Mother has failed to preserve any argument regarding exhibit
19. See Tex. R. App. P. 33.1(a); Austin v. Weems, 337 S.W.3d 415, 421 (Tex.
App.—Houston [1st Dist.] 2011, no pet.). Mother also asserts that we should
discount the testimony from the interventionist regarding Isaac’s positive drug test
at birth because there was a hearsay objection the trial court should have sustained.
However, even if we were to agree with Mother that the trial court should have
sustained this objection, there were no objections to the other evidence concerning
Isaac’s positive drug test at the time of his birth. Thus, even disregarding this one
response from the interventionist, there is sufficient evidence that the trial court
could have relied upon to support the conclusion that Mother exposed Isaac to illegal
drugs while she was pregnant and that such drug use caused Isaac physical harm
resulting in two weeks of treatment in the NICU.
Considering all the evidence in the light most favorable to the trial court’s
finding, we conclude a reasonable fact finder could form a firm belief or conviction
that Mother knowingly placed the child in conditions which endangered his physical
or emotional well-being and engaged in conduct which endangered the physical or
emotional well-being of the child. See In re A.C., 560 S.W.3d at 631. Considering
the disputed evidence contrary to the findings against all of the evidence favoring
the findings, we conclude that a reasonable fact finder could have resolved this
evidence in favor of the above findings. See id. Therefore, we conclude that the
evidence is legally and factually sufficient to support the trial court’s findings under
subsections (D) and (E). See In re J.T.G., 121 S.W.3d 117, 125–28 (Tex. App.—
13
Fort Worth 2003, no pet.) (considering evidence of children’s health complications
caused by mother’s drug use during pregnancy as conditions or surroundings that
endangered the well-being of the children under (D) and (E)); In re A.J.F., 2021 WL
423442, at *3 (concluding evidence was legally and factually sufficient to support
subsection (D) finding where mother admitted to drug use while pregnant and baby
tested positive for drugs at birth); In re B.R., No. 02-11-00146-CV, 2011 WL
5515502, at *4 (Tex. App.—Fort Worth Nov. 10, 2011, no pet.) (mem. op.) (holding
that evidence of mother’s heroin use throughout pregnancy permitted fact finder to
reasonably conclude mother “knowingly placed or knowingly allowed [child] to
remain in conditions or surroundings that endangered his physical well-being while
in the womb”); see also In re J.E., No. 14-16-00850-CV, 2017 WL 1274081, at *5
(Tex. App.—Houston [14th Dist.] April 4, 2017, pet. denied) (mem. op.) (“A
mother’s drug use during pregnancy may amount to conduct that endangers the
physical and emotional well-being of the child.”).
Concluding that the evidence is legally and factually sufficient to support
termination of Mother’s parental rights under subsection (D) or (E), we overrule
Mother’s first and second issues. Because we conclude there is sufficient evidence
to support one of the predicate findings, we need not address Mother’s issues three,
four, or five. See In re F.M.E.A.F., 572 S.W.3d at 736; Tex. R. App. P. 47.1.
BEST INTEREST OF THE CHILD
In her final issue, Mother contends that the evidence is legally and factually
insufficient to support the trial court’s conclusion that termination of her parental
rights is in Isaac’s best interest.
14
A. General Legal Principles
There is a strong presumption that the best interest of a child is served by
preserving the parent-child relationship. In re F.M.E.A.F., 572 S.W.3d at 726. In
assessing whether the evidence is sufficient to prove that termination is in the best
interest of a child, we may consider the non-excusive factors discussed in Holley v.
Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The factors include: (1) the child’s
desires; (2) the child’s present and future emotional and physical needs; (3) any
present or future emotional and physical danger to the child; (4) the parental abilities
of the individuals seeking custody; (5) the programs available to assist the
individuals seeking custody to promote the child’s best interest; (6) the plans for the
child by the individuals or agency seeking custody; (7) the stability of the home or
proposed placement; (8) the parent’s acts or omissions which may indicate that the
existing parent-child relationship is improper; and (9) any excuse for the parent’s
acts or omissions. See F.M.E.A.F., 572 S.W.3d at 726 (citing Holley, 54 S.W.2d at
371–72). We also consider the statutory factors in Section 263.307 of the Family
Code, including the child’s age and vulnerabilities. See id. The best-interest analysis
is child-centered and focuses on the child’s well-being, safety, and development. Id.
“[A] parent’s use of narcotics and its effect on his or her ability to parent may qualify
as an endangering course of conduct.” In re J.O.A., 283 S.W.3d 336, 345 (Tex.
2009).
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. Tex. Fam. Code § 101.007. This heightened
burden of proof results in a heightened standard of review when evaluating the
sufficiency of the evidence. In re L.G.R., 498 S.W.3d at 202.
15
In a legal sufficiency review, we look at all the evidence in the light most
favorable to the finding to determine whether a reasonable fact finder could have
formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d
at 266. We assume the fact finder resolved disputed facts in favor of its finding if a
reasonable fact finder could do so. Id. We disregard all evidence that a reasonable
fact finder could have disbelieved or found to have been incredible, but we do not
disregard undisputed facts. Id.
In a factual sufficiency review, we also consider disputed and conflicting
evidence. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re A.C.,
560 S.W.3d at 630–31. “If, in light of the entire record, the disputed evidence that
a reasonable fact finder could not have credited in favor of the finding is so
significant that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at
266.
B. Analysis
We review the Holley factors in considering whether the evidence is legally
and factually sufficient to support the trial court’s finding that terminating Mother’s
parental rights is in Isaac’s best interest.
(1) The child’s desires
At the time of trial, Isaac was about eleven months old and could not voice
his desires. See In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (“The young age of the child rendered consideration of the child’s
desires neutral.”). There was evidence of the bond between Isaac and grandmother.
Grandmother testified that Isaac had bonded with her and the rest of the household
and his needs are being met. The evidence also demonstrated that Mother had not
16
visited Isaac since he was two weeks old. Even discounting the time that Mother
was incarcerated, Mother did not visit Isaac for a period of four months. See In re
S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(“When children are too young to express their desires, the fact finder may consider
whether the children have bonded with the foster family, are well-cared for by them,
and have spent minimal time with a parent.”).
(2) The child’s present and future emotional and physical needs
The evidence demonstrated that Isaac was in occupational therapy twice per
month and visited with the interventionist at least once per month. The
interventionist further recommended that Isaac see a neurologist to determine
whether he had further medical issues. The evidence also showed that Isaac was
developmentally delayed and needed additional help and support to meet his
milestones. Grandmother testified that she takes Isaac to all of his appointments and
is helping him to meet his milestones.
An advocacy supervisor testified that termination is in the best interest of Isaac
because of Isaac’s age and vulnerability due to his “extensive and immediate care
needs” that are unable to be met by his parents. The evidence showed that Mother
is not involved in caring for her other children, one of whom is already residing with
grandmother. Grandmother has shown that she can provide for Isaac’s needs. The
supervisor testified that grandmother’s home is safe, Isaac has his own room, and
his basic needs are being met. Mother testified that it was her desire to obtain stable
housing and employment once released but did not elaborate on any plans to do so.
“Regarding this factor, we note that the need for permanence is a paramount
consideration for the child’s present and future physical and emotional needs.” In
re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
17
Establishing a stable, permanent home for a child is a compelling government
interest. Id.(3) Any present or future emotional and physical danger to the child
At the time of trial, Mother was still incarcerated awaiting trial. Evidence
regarding endangerment in support of the trial court’s finding under Section
161.001(1) is also probative of a finding as to danger in determining the child’s best
interest. See Walker v. Tex. Dept. of Fam. & Protective Servs., 312 S.W.3d 608,
617, 619 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (considering past drug
use by parent as indicative of whether the child may be endangered in the future
because of “the possibility that the parent may be impaired or imprisoned”); see also
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). The evidence also showed that Isaac is
very young and still vulnerable. Isaac has health issues and needs constant care and
supervision. The evidence showed that Mother was not engaged in her service plan,
demonstrating a lack of concern for changing her behavior and attending to Isaac’s
needs.
(4) Parental abilities of the individuals seeking custody
Grandmother testified that Isaac had been in her care for five months at the
time of trial. Grandmother is Isaac’s paternal grandmother and also is the caregiver
of Isaac’s older sister. The older sister is also a child of Mother and father and
subject to a prior family case in New Jersey, though parental rights were not
terminated in that case. Grandmother testified that Isaac had bonded with her, his
older sister, and grandmother’s life partner. Grandmother stays home with the
children and takes Isaac to his appointments. Grandmother testified that she is
willing to adopt Isaac and that her life partner is agreeable to that. Grandmother
indicated that she had the financial means to take care of Isaac. Grandmother further
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testified that she would be protective of Isaac and would determine whether it was
in his best interest to have contact with his Mother and father.
The advocacy supervisor testified that grandmother has shown that she can
provide for Isaac’s needs. She testified that grandmother’s home is safe, Isaac has
his own room, and his basic needs are being met.
The evidence showed that Mother is not involved in parenting her other two
children. See Walker, 312 S.W.3d at 617 (“Evidence as to how a parent has treated
another child or spouse is relevant regarding whether a course of conduct . . . has
been established.”). Mother did not complete the parenting course and was
discharged for non-compliance. Mother did not seek prenatal care and continued to
use illegal drugs while pregnant. Mother did not engage in completing her plan or
the services she was referred to by the Department. See In re D.R.A., 374 S.W.3d at
534 (considering that father did not complete “significant” aspects of his service plan
and only sporadically visited his child as evidence demonstrating a lack of parental
ability).
(5) Programs available to assist those seeking custody to promote the
child’s best interest
Mother was offered various services through the Department and chose not to
engage. See Walker, 312 S.W.3d at 620 (considering whether parent had engaged
in service plan). Grandmother takes Isaac to his appointments and follows through
with the recommendations of those providers. Grandmother and the advocacy
supervisor testified that grandmother works with Isaac at home and is helping him
to progress and meet his milestones.
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(6) Plans for the child by the individuals or agency seeking custody
Grandmother testified that she is interested in adopting Isaac and her life
partner was agreeable to the adoption. Grandmother further indicated that she
wanted to be the one to make the decisions about what is best for Isaac, as opposed
to his parents or anyone else. Grandmother intends to raise Isaac and his older sister
together in her home.
(7) Stability of the home or proposed placement
At the time of trial, Mother was incarcerated and did not have a plan for
housing or employment once she was released. Mother planned to obtain both
housing and legal income upon her release but did not detail how she would do either
in her testimony. Mother testified that prior to her incarceration she lived in various
hotels and did not have stable housing.
The advocacy supervisor testified that the Department had completed a home
study of grandmother’s home and found it suitable for Isaac and approved his
placement there. Grandmother testified that she stays home with the children and
has income to support them.
(8) Parent’s acts or omissions which may indicate that the existing parent-
child relationship is improper
Mother’s drug use during pregnancy and failure to obtain any prenatal care
indicate an improper relationship and unwillingness to protect and care for Isaac.
Mother’s further failure to engage in services to regain custody over Isaac further
support this conclusion.
(9) Any excuse for the parent’s acts or omissions
No excuses were given for Mother’s failures to engage in services prior to
incarceration. Mother argues that she was not given enough time to complete her
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service plan once it was given to her. Mother further argues that she did not
understand all aspects of her plan—specifically whether she needed to obtain a
psychological assessment. However, Mother’s conduct of not engaging in services
prior to her incarceration, not being involved in the lives of her other children, not
visiting Isaac, and failing to engage in services at the time of trial support a
conclusion that Mother was not willing to engage in any services to regain custody
of Isaac.
While not all factors have substantial evidence supporting termination, a
majority of the factors weigh in favor of termination. Viewing the evidence in the
light most favorable to the judgment, we conclude that the evidence is legally
sufficient to support the trial court’s conclusion that termination of Mother’s parental
rights is in Isaac’s best interest. Viewing all of the evidence equally, we conclude
that a reasonable fact finder could have formed a firm belief or conviction that
terminating Mother’s parental rights is in Isaac’s best interest.
We overrule Mother’s final issue.
CONCLUSION
Concluding there is legally and factually sufficient evidence to support the
trial court’s termination of Mother’s parental rights, we affirm the trial court’s final
decree.
/s/ Ken Wise
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
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