In the Interest of A.H., L.H., and A.H., Children v. the State of Texas ( 2023 )

Affirmed and Majority and Concurring Memorandum Opinions filed March
7, 2023.
In The
Fourteenth Court of Appeals
NO. 14-22-00652-CV
IN THE INTEREST OF A.H., L.H., AND A.H., CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2020-01531J
MAJORITY MEMORANDUM OPINION
The trial court terminated both parents’ rights to three children. Mother
appeals, contending that the evidence is legally and factually insufficient to support
the trial court’s findings in support of the judgment terminating her parental rights
and appointing the Department of Family and Protective Services as the sole
managing conservator of the children.1 We affirm.
1
Father did not appeal.
I. STANDARDS OF REVIEW
A court may terminate the parent-child relationship if the court finds by
clear and convincing evidence that (1) the parent has engaged in at least one
statutory predicate act and (2) termination is in the best interest of the child. See In
re N.G., 577 S.W.3d 230, 230 (Tex. 2019); In re L.C.L., 599 S.W.3d 79, 83 (Tex.
App.—Houston [14th Dist.] 2020) (en banc), pet denied, 629 S.W.3d 909 (Tex.
2021); see also Tex. Fam. Code § 161.001(b).
Termination of the parent-child relationship is a drastic remedy and is of
such weight and gravity that due process requires the state to justify termination by
clear and convincing evidence. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002); see also
In re L.G.R., 498 S.W.3d 195, 201 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied). 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.
Under a legal sufficiency review, we look at all the evidence in the light
most favorable to the finding to determine whether a reasonable factfinder could
have formed a firm belief or conviction that the finding was true. In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so. Id. We disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible, but we do not disregard undisputed facts. Id.Evidence is factually insufficient 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
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firm belief or conviction.” Id. We assume that the factfinder resolved disputed
evidence in favor of its findings if a reasonable factfinder could do so, but we do
not disregard disputed evidence. See In re Commitment of Stoddard, 619 S.W.3d
665, 674 (Tex. 2020).
II. BACKGROUND
The Department petitioned for termination and obtained temporary
managing conservatorship of the children in 2020. The final hearing in this case
was held over the course of four days between January and July 2022. By the time
of trial, the children—Andy, Leyla, and Alex—were about 12, 8, and 4 years of
age, respectively.2
A. Prior Involvement with the Department
The trial court admitted into evidence the removal affidavit, which describes
the parents’ prior involvement with the Department regarding two children who are
not the subject of this case. In 2006, the parents were using cocaine and heroin
while caring for their one-year-old son. The child was seen eating his own feces in
a home with roaches while the parents were “high.” The child had scars from
cigarette burns. Later, the child began living with family members. In 2008,
Mother tested positive for cocaine and cannabis while pregnant with another child.
The Department obtained temporary managing conservatorship over the child.
Ultimately, in 2009, a court issued decrees in suits affecting the parent-child
relationships for each child, awarding sole managing conservatorship of the
children to their maternal grandfather. The court found that appointment of the
parents would not be in the children’s best interests because it would significantly
impair the children’s physical health or emotional development. The parents were
2
We use fictitious names for the children. See Tex. R. App. P. 9.8.
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appointed possessory conservators with limited and supervised possession and
access to the children.
B. Drowning Incident and Criminal Case
The caseworker testified that the three children in this case initially came
into the Department’s care due to an incident of child endangerment. While
Mother was standing nearby, she allowed the children to nearly drown in a pond of
water. Mother testified, describing the March 2020 incident as follows:
We were just standing around the lake and my kids, they were just
playing. And my daughter, she accidently jumped in or I guess she
thought it was a pool or something. And as I was saving her, my son
accidently jumped in as well, and then I was trying to get both of them
at the same time. And then a neighbor jumped in and saved us all
from the lake. It was a total accident. I didn’t not respond to them. I
was in the water as well. I was helping with trying to get them away
from the pond. And at the time when the police came, they asked me
to open the door, but my husband said he didn’t think that we should
open the door at the time, so that’s why I was charged with child
endangerment.
She testified that the children did not have a ball, and when the daughter jumped in
the water, she had a tablet with a protective case in her hand, “so she was floating
on top of the tablet.” Mother testified that not all the children went into the pond.
She testified that neither she nor the children could swim.
A video recording of the drowning incident, which appears to be from a
security camera, was admitted as an exhibit. It appears to show Alex, the youngest
child, knocking a ball into the pond. Leyla, the middle child, enters the pond to
retrieve it, struggles, and drops another floating object in the water before exiting
the pond. Andy, the oldest child, and Leyla go back into the water apparently to
try to retrieve the object. They appear to struggle in the water while Mother stands
by watching. About thirty seconds later, Alex goes into the water. Mother
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retrieves Alex over the course of about thirty seconds. After another thirty
seconds, Mother retrieves Leyla’s limp body and tosses her to the ground near the
pond. Mother again slowly wades into the water over the course of about forty
seconds until bystanders arrive and help rescue Andy. He had been in the water
nearly two and a half minutes before being rescued. Throughout this time, the
children in the water can be seen struggling and bobbing up and down while
drowning. According to the removal affidavit, a neighbor ran about half a mile to
take Andy out of the pond.
As a result of this incident, the State indicted Mother for endangering a
child. See Tex. Penal Code § 22.041(c). One of her bond conditions was to have
no contact with her children. She pleaded guilty and was placed on deferred
adjudication community supervision in November 2021.
C. Mental Health, Service Plan, and Drug Use
After Mother was arrested and released from jail, she was admitted to the
UT Psychiatric Center in April 2020. The caseworker testified that Mother’s
mental health diagnoses included adjustment disorder, schizoaffective disorder,
and bipolar disorder. The removal affidavit noted that Mother was diagnosed with
psychosis, bipolar disorder, and schizophrenia.
According to one of Mother’s doctors at the UT Psychiatric Center, Mother
said she had not been taking her mental health medications for two months prior to
the drowning incident. The doctor noted that Mother had been admitted previously
for depression with psychotic features. Family members had reported that
Mother’s condition was getting worse. At the UT Psychiatric Center, Mother was
administered medications, and her hallucinations were getting better. Mother was
“only hearing whispers and not loud voices in her head.” The doctor noted that
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Mother was “coming off of a psychotic state.” The doctor stated that if Mother
remained compliant with her medications, she would be okay.
Mother’s sister testified that she had observed Mother experience psychotic
episodes in the past, and it made the sister concerned for the children’s safety. She
described an incident that happened about four years before trial in which Mother
“just took off walking.” When Andy followed Mother, she got on a bus and left.
The sister got the children and took them to their grandmother’s house. This
incident caused Andy stress and “hurt him.”
Mother signed a family service plan in September 2020, and the court
approved the service plan in November 2020. The service plan described
medication compliance as a required action: “[Mother] will need to provide the
agency and courts with verification of medication compliance from her doctor.
This will be an ongoing task. The verification will need to be provided every
doctors appointment, or every 30 days.” The plan required Mother to have stable
housing with verification in the form of a lease with her name on it or a letter from
management. The plan also required Mother to complete random drug screenings
and follow all recommendations of a substance abuse assessment.
The caseworker testified that Mother did not complete her family service
plan because Mother did not have proof of stable housing. Although Mother
produced a lease with her and Father’s name on it, Mother did not plan to live
there. Furthermore, Mother was not compliant with medication management, was
not consistently attending appointments, and was unsuccessfully discharged from
individual therapy due to a failure to verbalize and understand her role in the CPS
case. The caseworker testified that Mother was not refilling her medications on
time nor attending all her medication review follow-ups with MHMRA. The
caseworker agreed that Mother had completed her other services and had been
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“trying to work her services the best that she has the ability to do even though she
is a parent with a disability.”
Mother testified that she completed everything related to her service plan
except individual therapy, which she was still currently undertaking. Mother did
not testify explicitly about whether she was taking her mental health medications
consistently. She testified, however, that her doctor “gives me medicine to take if I
ever was to have any depression.”
As noted above, the Department documented Mother’s drug use in 2006 and
2008, including her drug use while pregnant with one of her other children. The
caseworker testified that Mother also tested positive for cocaine in January 2021,
methamphetamine in May 2021, and alcohol in April 2022. Mother tested
negative for drugs multiple times during the case, but she was a “no show” for six
drug tests in 2021. Mother testified that she used marijuana after her children were
born “maybe at a party or something over the weekend or something, but never
while caring for them.”
D. Visitations and Bond with Mother
Although Mother was prohibited from visiting the children for about a year
and a half due to the bond conditions of her child endangerment charge, she was
able to start visitations sometime between the dates of trial. The caseworker
testified that Mother had been compliant with her visitations and was appropriate
during the visitations. The children were clearly bonded with Mother and love her.
The caseworker agreed that it was “possible” or even “likely” that separating the
children from Mother would be a “detriment” to them.
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E. Foster Care, Adoption Plans, Special Needs, and Support
The children had been in foster care for nearly two years. The foster mother
testified that the children adjusted well to her home, and she was bonded with
them. Her understanding was that the children wanted to live with her and her
family. The foster mother’s goal was for her and her husband to adopt the
children. She testified that all the children made improvements while living in
their home. She testified that even if parental rights were terminated, she would
allow the children visits with their parents.
The oldest child, Andy, has special needs. He is on the severe end of the
autism spectrum. He has been receiving occupational therapy and speech therapy
while living with the foster family. He receives personal care services multiple
times per week through Medicaid, which would continue with the child wherever
he is placed. The foster mother testified that she is a former “head start” teacher
and director of a day care. She currently works with special-needs children. She is
certified in special education and has completed crisis prevention training to help
calm children down if they become enraged.
F. Judgment and Findings
The trial court signed a final judgment terminating parental rights.
Regarding Mother, the court made necessary findings to terminate parental rights
based on statutory predicate grounds (E), (L), (O), and (P). See Tex. Fam. Code
§ 161.001(b)(1)(E), (L), (O), (P). The court found that termination was in the
children’s best interests. And the court appointed the Department as the children’s
sole managing conservator.
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III. SUFFICIENCY OF THE EVIDENCE: ENDANGERMENT FINDING
In her first four issues, Mother challenges the sufficiency of the evidence to
support the trial court’s four predicate findings. Because sufficient evidence is
needed for only one predicate finding to affirm the trial court’s judgment, and the
Section 161.001(b)(1)(E) finding is dispositive, we address it first. See In re P.W.,
579 S.W.3d 713, 728 (Tex. App.—Houston [14th Dist.] 2019, no pet.); In re
J.J.W., No. 14-18-00985-CV, 2019 WL 1827591, at *8 (Tex. App.—Houston
[14th Dist.] Apr. 25, 2019, pet. denied) (mem. op.).
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 physical or emotional well-being of the child. Id. at 883;
see In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021).
Termination under subsection (E) must be based on more than a single act or
omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. In re V.A., 598 S.W.3d 317, 331 (Tex. App.—Houston
[14th Dist.] 2020, pet. denied). In determining whether there is a sufficient course
of conduct, a court may consider the parent’s actions and inactions occurring both
before and after a child’s birth, and before and after the child was removed from
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the parent’s home. In re F.M.E.A.F., 572 S.W.3d 716, 736 (Tex. App.—Houston
[14th Dist.] 2019, pet. denied).
Here, Mother’s use of narcotics and the effect on her ability to parent
qualifies as an endangering course of conduct. See In re J.O.A., 283 S.W.3d at 345
& n.4. The Department linked Mother’s use of cocaine and heroin to one of
Mother’s children eating feces and adduced evidence that Mother tested positive
for cocaine, methamphetamines, and alcohol even after the subject children were
removed from her care.
More importantly, however, Mother stood by and watched her children
nearly die from drowning. Although she slowly removed two of her children from
the water, Andy was struggling for nearly two and a half minutes before bystanders
arrived to rescue him. Mother was discharged from therapy because of her
inability to understand her role in the incident, and her testimony at trial conflicted
with the video evidence. To the extent her conduct during the drowning incident
and inability to accept her role resulted from her mental illness and psychosis, the
Department adduced evidence that Mother failed to take her mental health
medications for several months before the incident and was not compliant with her
medications and doctor visits after the children were removed from her care.
When a parent’s mental state allows her to engage in conduct which endangers the
physical or emotional well-being of the child, that conduct has bearing on the
termination decision. In re F.M.E.A.F., 572 S.W.3d at 737. Her failure to take
medications for her mental illness can demonstrate an endangering course of
conduct. See id. (considering failure to take medications for bipolar disorder
which caused parent to become unstable and suicidal); In re K.L.P., No. 14-18-
00582-CV, 2018 WL 6684275, at *8 (Tex. App.—Houston [14th Dist.] Dec. 20,
2018, pet. denied) (mem. op.) (considering parent’s failure to take medications for
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schizophrenia, thus subjecting children to unpredictable behavior); In re S.R., 452
S.W.3d 351, 363–65 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(considering parent’s failure to take medications for mental illness and comply
with services to improve mental health).
Considering all the evidence, including disputed evidence, a reasonable
factfinder could have formed a firm belief or conviction that Mother engaged in
conduct which endangers the physical or emotional well-being of the children.
The evidence is legally and factually sufficient to support the trial court’s finding.
Mother’s first issue is overruled.
IV. SUFFICIENCY OF THE EVIDENCE: BEST-INTEREST FINDING
In her fifth issue, Mother challenges the sufficiency of the evidence to
support the trial court’s finding that termination was in the children’s best interests.
The purpose of the State’s intervention in the parent-child relationship is to
protect the best interest of the child, not to punish parents for their conduct. In re
A.V., 113 S.W.3d 355, 361 (Tex. 2003). There is a strong presumption that the
best interest of a child is served by preserving the parent-child relationship. In re
B.J.C., 495 S.W.3d 29, 35 (Tex. App.—Houston [14th Dist.] 2016, no pet.). But
there is also a presumption that the permanent placement of a child in a safe
environment is in a child’s best interest. Tex. Fam. Code § 263.307(a); see also In
re B.J.C., 495 S.W.3d at 39 (noting that a child’s need for permanence through the
establishment of a stable, permanent home is the paramount consideration in a
best-interest determination). The best-interest analysis is child-centered and
focuses on the child’s well-being, safety, and development. In re A.C., 560 S.W.3d
624, 631 (Tex. 2018).
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In assessing whether the evidence is sufficient to prove that termination is in
the best interest of a child, we may consider the non-exclusive factors discussed in
Holley v. Adams, 544 S.W.2d 367, 371–72 (1976). See In re E.C.R., 402 S.W.3d
239, 249 & n.9 (Tex. 2013). These 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. Id. (citing Holley, 544 S.W.2d at 371–72). We may also consider the
statutory factors in Section 263.307 of the Family Code, including (1) the child’s
age and physical and mental vulnerabilities; (2) the magnitude, frequency, and
circumstances of harm to the child; (3) the results of psychiatric or psychological
evaluations of the child’s parent; (4) any history of the parent’s substance abuse;
and (5) the willingness and ability of the parent to complete counseling services
and to effect positive environmental and personal changes within a reasonable
period of time. See Tex. Fam. Code § 263.307(b); In re A.R.M., No 14-13-01039-
CV, 2014 WL 1390285, at *9 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no
pet.) (mem. op.).
A. Children’s Desires, Needs, Placement, and Plan
The evidence is uncontested that the children and Mother love each other
and are bonded. The caseworker acknowledged that Mother’s visits with the
children were appropriate, and it would possibly or likely be a “detriment” to the
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children to separate them from Mother. However, the caseworker testified that
Mother did not provide the Department with evidence of stable housing.
The foster mother testified that she was also bonded with the children, who
had been living with her for two years, and that she would continue to facilitate the
familial bond with Mother even if parental rights were terminated. The foster
parents were planning to adopt the children and provide them with a safe and
stable home. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (plans for adoption
relevant to best interest). Indeed, the foster mother had training and experience
working with special-needs children like Andy, who needs extra care and
assistance due to his severe autism.
B. Parent’s Acts and Omissions Causing Harm, Mental Health, Substance
Abuse, and Excuses
The Department adduced evidence that Mother is “okay” when she is
properly medicated. However, before allowing her children to nearly drown, she
had gone off her medications for two months, which allowed Mother to enter a
“psychotic state,” experience hallucinations, and hear voices in her head. She was
unsuccessfully discharged from therapy after the children were removed from her
care because she refused to accept her responsibility for the drowning incident and
was not refilling prescriptions for her mental health medications. Mother did not
contradict this evidence. She acknowledged that she has medications to take “if I
ever was to have any depression.” From this evidence, the court could have
inferred that Mother would take her medications only if she felt symptoms of
depression, rather than regularly as prescribed and as necessary to maintain her
mental health and stability.
Even if Mother’s mental health condition would excuse her conduct during
the drowning incident, her failure to consistently remain medicated to prevent or
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reduce the likelihood of harm to her children is not excused. And although the
evidence did not establish a significant frequency of Mother’s psychotic episodes,
the drowning incident was severe and nearly cost the lives of one or more of her
children.
Moreover, Mother demonstrated a history and pattern of substance abuse—
while caring for a child, while pregnant, and after the children were removed from
her care. Although Mother claimed only to use marijuana and while not around
her children, the court could have disregarded her self-serving testimony in light of
other evidence.
C. Summary
Although a child’s love for their parent is an important consideration in
determining the child’s best interest, this bond cannot override or outweigh
evidence of danger to the child. In re. F.M.E.A.F., 572 S.W.3d at 732. Mother
exposed her children to danger by failing to comply with necessary medical
treatment for her mental illnesses, allowing her children to nearly drown, and
continuing to use illegal substances after her children were removed from her care.
Her conduct indicates that the parent-child relationship is improper and
demonstrates an unwillingness or inability to effect positive changes within a
reasonable period of time.
Considering all the evidence, including disputed evidence, a reasonable
factfinder could have formed a firm belief or conviction that termination of
Mother’s parental rights was in the children’s best interests. The evidence is
legally and factually sufficient to support the trial court’s finding.
Mother’s fifth issue is overruled.
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V. CONSERVATORSHIP
In her sixth issue, Mother contends that the trial court abused its discretion
by appointing the Department as the children’s sole managing conservator and not
appointing Mother as a managing conservator.
Appellant relies on cases applying the statutory presumption for parents to
be appointed as managing conservators unless the trial court finds that the
appointment would not be in a child’s best interest because the appointment would
significantly impair the child’s physical health or emotional development. See
Tex. Fam. Code § 153.131. However, a trial court need not make such a finding
following a termination of the parent’s rights because the former parent is no
longer a “parent” following the termination. See Z.A.R. v. Tex. Dep’t of Family &
Protective Servs., No. 14-20-00511-CV, 2020 WL 7866800, at *15 (Tex. App.—
Houston [14th Dist.] Dec. 31, 2020, pet. denied) (mem. op.).
Under Section 161.207(a) of the Family Code, following a termination of all
parents’ rights, a court “shall appoint a suitable, competent adult, the Department
of Family and Protective Services, or a licensed child-placing agency as managing
conservator of the child.” Tex. Fam. Code § 161.207. The trial court’s
appointment of the Department as the sole managing conservator of a child is
considered a “consequence of the termination” pursuant to Section 161.207. In re
V.A., 598 S.W.3d 317, 334 (Tex. App.—Houston [14th Dist.] 2020, pet. denied);
see also In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008) (per curiam).
A trial court’s conservatorship decision is subject to review for an abuse of
discretion and may be reversed only if the decision is arbitrary and unreasonable.
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Because the trial court terminated
the parents’ rights to the children, we cannot say the trial court’s decision to
appoint the Department—an agency statutorily identified as an eligible managing
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conservator—instead of Mother was arbitrary or unreasonable. See In re V.A., 598
S.W.3d at 334.
Mother’s sixth issue is overruled.
VI. CONCLUSION
Having overruled Mother’s issues necessary to the disposition of the appeal,
we affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Jewell, and Poissant. (Poissant, J., concurring).
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