in the Interest of E.M. ( 2021 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00246-CV
__________________
IN THE INTEREST OF E.M.
__________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 19-09-13141-CV
__________________________________________________________________
MEMORANDUM OPINION
J.R.M. (“Father”) and F.M. (“Mother”), 1 the parents of the minor child E.M.,
appeal the trial court’s order terminating their parental rights. In five issues, Mother
challenges the legal and factual sufficiency of the evidence supporting the trial
court’s findings under sections 161.001(b)(1)(E) and 161.001(b)(1)(O) of the Texas
Family Code, as well as the legal and factual sufficiency of the evidence supporting
the trial court’s finding that termination of her parental rights is in E.M.’s best
interest, and she argues that the trial court erred by appointing the Department of
Family and Protective Services (“the Department”) permanent managing
1
We will refer to J.R.M. and F.M. collectively as “appellants.”
1
conservator of E.M. and failing to appoint Intervenor, E.M.’s great uncle (“Uncle”),
as managing conservator. See Tex. Fam. Code Ann. § 161.001(b)(1)(E), (O), (2). In
his sole issue, Father challenges the legal and factual sufficiency of the evidence
supporting the trial court’s finding that termination of his parental rights is in E.M.’s
best interest. We affirm the trial court’s order terminating appellants’ parental rights.
THE EVIDENCE
CPS investigator Mary Ann Marinelli testified that the case was assigned to
her in September 2019 after allegations of sexual abuse and neglectful supervision
of E.M., as well as reports that Mother had major depressive disorder and was
suicidal, and that Father was a registered sex offender. Marinelli spoke with Mother,
and she explained that Mother indicated she was worried about E.M. being alone
with Father because of his status as a sex offender. Mother informed Marinelli that
she had suffered from mental health issues since the age of thirteen. Mother also told
Marinelli that the police had been to her home many times because of domestic
violence between her and Father, and that she would need assistance to care for E.M.
According to Marinelli, Father is Mother’s great-uncle. Marinelli explained
that she spoke to Father, and Father also admitted that there had been ongoing
domestic violence between him and Mother. Marinelli testified that when she visited
the parents’ residence, the home smelled of dog urine, and there was “some trash
around the home.” According to Marinelli, the parents’ home was “unsanitary[,]
2
which would cause a concern for safety.” Marinelli testified that she was concerned
about Father’s ability to care for E.M. because he did not speak clearly and seemed
to be hearing impaired. Marinelli explained that she ruled out sexual abuse and
confirmed that Father is not a registered sex offender and does not have criminal
convictions. Marinelli testified that when she met E.M., E.M. appeared to be healthy,
clean, and well dressed.
Brandi Mathews testified that she was the Montgomery County
conservatorship worker assigned to E.M.’s case until August 2020, when she left
county employment and a new caseworker was assigned. Mathews explained that
the trial court required both parents to participate in services under a family service
plan developed by the Department. According to Mathews, the service plan required
Mother to undergo a psychological evaluation, participate in individual counseling,
complete a psychiatric evaluation, maintain visits with the child, maintain a safe and
stable home, and participate in family counseling. Mathews explained that Mother
did not complete any of the court-ordered services while Mathews was assigned to
the case. Mathews testified that during visits with Mother, E.M. cried uncontrollably,
and during one visit, Mother “just sat [E.M.] down in the middle of the floor and
told [Mathews] that she had to leave.” Mathews testified that neither parent was able
to console E.M., give her a bottle, or change her diapers during visits. According to
Mathews, Mother was hospitalized due to mental health issues “often throughout the
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span of the case[,]” and she was also incarcerated due to family violence against her
boyfriend. Mathews explained that Mother and Father frequently broke up and
reunited during the pendency of the case.
Mathews testified that the family service plan required Father to maintain a
safe and stable home environment, participate in individual and family counseling,
complete a psychological evaluation, and provide proof of income. According to
Mathews, Father did not complete any of the required services. Mathews explained
that when Father visited with E.M., E.M. would cry anytime he held her, and Father
also “had difficulties with holding her, changing diapers, making bottles, [and]
consoling her.” Mathews explained that she became aware of Uncle (Father’s
brother) as a prospective placement for E.M. in November 2019, and she testified
that Father and Mother did not want Uncle considered for placement because Uncle
was abusive.
Mathews testified that when she contacted Uncle, who resides in Michigan,
he wanted to be considered for placement. Mathews explained that Uncle submitted
the requested documentation, but he was not approved for placement, and E.M. was
placed in foster care. Mathews testified that she wanted additional information about
the medication Uncle was taking, as well as a stalking charge and another pending
felony charge. In addition, Mathews testified that she “did not receive any FBI
fingerprint checks for [Uncle] or the additional individuals living in the home[,]”
4
and she wanted “additional information about his willingness to care for a child with
special needs and if [he] would be able to maintain her therapies and the things with
her cranial band.”
According to Mathews, E.M. has special needs and requires occupational
therapy and speech therapy, and she wears a cranial band to correct an issue with
“one side of her head being flatter . . . due to her always being laid on that side.”
Mathews testified that at ten months of age, E.M. was not rolling over, was not
interested in crawling, and was not “making the sounds and things that a typical baby
her age would do.” Mathews explained that while handling the case, she determined
that Mother was “slow to comprehend, and . . . there were some psychiatric
concerns[.]” During cross-examination by Father’s counsel, Mathews testified that
Father later told her that he wanted E.M. placed with Uncle, and she explained that
Uncle does not have any criminal history involving violence or children.
Mercedes Beyan, a caseworker for the Department, testified that she received
the case when Mathews left the agency. Beyan explained that she referred Mother
for individual counseling, psychiatric assessment, psychological evaluation, and a
“BIPP assessment[,]” but Mother did not complete any of the services. According to
Beyan, Father also did not complete any services, and he has not regularly visited
with E.M. Beyan explained that she is concerned that Mother could not provide care
for E.M. because Mother failed to complete services and failed to show that she has
5
a stable home environment. Beyan also testified that Mother “has stated that she
can’t take care of [E.M. by herself[.]” Beyan explained that she has not had personal
contact with Father, and her only concern about his ability to care for E.M. is his
failure to complete the required services. According to Beyan, the Department
recommends termination of both parents’ rights and adoption by E.M.’s foster
parents. With respect to Uncle, Beyan testified that she is concerned about a pending
criminal charge, Uncle’s medication, “and the fact that we haven’t gotten direct
answers on [whether] they can provide for ongoing medical care for the child and
her special needs, and [Mother] has told me that she does not want her child to go
there.”
CASA volunteer Kayla Barrientes, the guardian ad litem, testified that she
has spoken with E.M.’s foster parents and has been to their home. Barrientes
explained that she has seen E.M.’s foster parents read to E.M., play with her, work
with her on pulling herself up, and “been loving on [E.M.] and caring for her.”
According to Barrientes, when E.M. is with her foster parents, she is happy, smiling,
and in a great mood, and E.M. is “doing wonderful[ly].” Barrientes testified that
Uncle contacted her to express concern about E.M., and Uncle told her that the
relationship between Mother and Father was not healthy. Uncle eventually informed
Barrientes that he wanted E.M. placed with him, and Uncle’s wife called Barrientes
to ask about visitation and whether E.M. could be placed with them.
6
According to Barrientes, during visits with Mother and Father, E.M. was
distressed and cried off and on throughout the visits, and the caseworker had to help
Father and Mother soothe and care for E.M. Barrientes testified that she is concerned
about the stability of the relationship between Mother and Father, as well as their
ability to meet E.M.’s basic needs and provide a stable home for her, and she opined
that the parents’ rights should be terminated. Barrientes testified that Mother has not
been able to demonstrate that she can maintain a stable home, did not complete any
required services, and has engaged in criminal activity “throughout the case.”
According to Barrientes, Mother was hospitalized off and on while the case was
pending. Barrientes also testified that Father failed to maintain contact with the
Department, did not complete any of the required services, and has not demonstrated
an ability to provide a stable home for E.M. Barrientes explained that CASA agrees
with the Department’s recommendation that adoption by her non-relative foster
parents is in E.M.’s best interest.
According to Barrientes, her concerns about Uncle were not addressed, and
she did not recommend that E.M. be placed with Uncle. Barrientes testified that
Uncle had a criminal charge involving harassment. Barrientes explained that Uncle
is a long-haul truck driver who is only home for one day per week, so Uncle’s wife
would be E.M.’s primary caregiver. Barrientes testified that Uncle told her that since
he found God and became a preacher, he was no longer abusive toward others.
7
Barrientes opined that Uncle and his wife could care for E.M.’s needs with respect
to the cranial band. Barrientes testified that the Department had asked for Uncle’s
diagnosis and a reason why Uncle was taking a particular medication, and the
Department was not provided with a diagnosis. According to Barrientes, Uncle
eventually disclosed that he suffers from bipolar disorder. Additionally, Barrientes
testified that Uncle never provided documentation that he had completed foster
parent classes.
Barrientes explained that she is concerned about Uncle’s harassment charges
“and the allegations of sexual abuse as well as the felony that was on his record.”
Barrientes further testified that she was also concerned about Uncle’s ability to
provide a stable home due to E.M.’s special needs and medical needs, as well as
Uncle’s inability to be home frequently with E.M. due to his job as a trucker.
Barrientes explained that E.M. has delays in her speech and fine motor skills, so she
requires speech therapy and occupational therapy, and there is also “concern about
her muscle tone in her legs.” According to Barrientes, E.M.’s foster parents are
meeting her needs, and there are no concerns regarding their care of E.M.
Mother testified that she is twenty-three years old, and she has been married
to Father, who is her great-uncle, since 2017. According to Mother, she has been
living with her fiancé, who she met in a psychiatric facility, for almost a year. Mother
explained that she and Father are currently separated and plan to divorce. Mother
8
also testified that her relationship with Father was “[n]ot good[,]” and that she had
been charged with assault two or three times. Mother explained that after E.M.’s
birth, she was readmitted to the psychiatric hospital, and she testified that she had
been in a psychiatric hospital approximately twenty times during a period of fourteen
or fifteen months. Mother testified that she suffers from bipolar disorder and
schizoaffective disorder, as well as suicidal ideation and depression, and she began
having mental health problems when she was thirteen years old. Mother testified that
she believes her mental health issues affect her ability to provide care for E.M.
Mother testified that she does not work, and she receives supplemental
security income (SSI) due to bipolar disorder and a learning disability. Mother
opined that Father cannot provide safe care for E.M., and she explained that Father
does not work, but he “has SSI and union money.” Mother testified that she wanted
E.M. placed with Uncle, and she explained that her previous allegations that he was
abusive toward women are untrue. Mother explained that she believed placing E.M.
with Uncle is in E.M.’s best interest.
Father testified that he is sixty-seven years old and has four other children.
According to Father, he and Mother began dating when he was in his sixties and
Mother was approximately twenty years old. Father explained that he is not
employed, but he receives a pension and social security. Father testified that he
initially did not want E.M. to be placed with Uncle because Uncle and his wife fight,
9
but he now believes that E.M. would be “in good hands[]” with Uncle. Father
explained that he believes he can care for E.M., but he thinks E.M. would be better
off with Uncle because Uncle is a preacher. According to Father, Mother cannot care
for E.M. because Mother is frequently hospitalized. Father testified that he did not
attend the classes required by the family service plan. Additionally, Father testified
that Mother assaulted him on three occasions.
Uncle testified that he has four children, one of whom is Mother’s father.
Uncle testified that he resides in Michigan. Uncle explained that when he learned of
the relationship between Mother and Father, he contacted the district attorney and
learned that there is “no law against a great-uncle marrying a great-niece.” Uncle
opined that Mother’s mental health issues make her incapable of caring for E.M.,
and he testified that Father is in bad health and that Father struggles to console E.M.
According to Uncle, his job requires him to be away from home six days per
week. Uncle testified that he has no concern about his wife’s ability to safely care
for E.M., and he explained that if he were awarded conservatorship of E.M., his wife
would be E.M.’s mother and would “take very good care of her and love her[.]”
Uncle testified that there was no domestic violence in any of his marriages, and he
denied telling Barrientes that he no longer abused women because he found God.
Uncle testified that he slapped his first wife because she was not properly caring for
their child. Uncle explained that he was charged with a felony for leaving the scene
10
of an accident, but the charge was dropped. According to Uncle, his harassment
charge was for calling one of his former wives excessively while he was trying to
save their marriage. The Department rested at the conclusion of Uncle’s testimony.
Mother’s counsel called ICPC specialist IV Carolyn Rene Blake to testify.
Blake testified that she received an ICPC packet for E.M. and submitted the packet
to Michigan. Blake explained that Uncle was the subject of the home study, and she
testified that Uncle received tentative approval, and the condition for approval was
that Uncle needed to become licensed as a foster parent. Blake testified that her team
sent an addendum to Michigan regarding concerns about “medications that the
caregiver was not forthcoming about.” According to Blake, there was also concern
about Uncle’s stalking charge and his willingness and ability to care for a child with
developmental needs. Blake explained that as of August 4, 2020, Michigan had not
rescinded its approval of the placement. Blake testified that approval of a home study
does not mean a child will be placed in that home. Counsel for both Mother and
Father, as well as the guardian ad litem, rested at the conclusion of Blake’s
testimony.
Uncle’s wife, K.M., testified that she and Uncle have been married for
fourteen years. According to K.M., Uncle is a good provider, and is “caring and
attentive to the needs of the family.” K.M. testified that she loves E.M. K.M.
explained that she does not work outside the home, and she is currently a caregiver
11
for her two grandchildren. K.M. testified that both she and Uncle completed a home
study in Michigan.
According to K.M., she asked Mathews about having visits with E.M., and
Mathews never gave a definite response and did not tell K.M. that she could visit as
long as E.M.’s parents agreed. K.M. testified that Mathews often did not return her
phone calls or respond to text messages. K.M. testified that Mathews never requested
documentation regarding Uncle’s felony charge or any other concerns. According to
K.M., Uncle suffers from anxiety, but does not have any other mental health
diagnoses. K.M. testified that she has never seen Uncle be violent with anyone.
According to K.M., if Uncle were awarded conservatorship of E.M., she and
her husband planned to bring E.M. to Michigan and adopt her. K.M. testified that
Mother and Father were unable to appropriately console E.M. when she cried, and
she opined that it would emotionally impair E.M. if her parents cannot console her.
K.M. explained that she purchased a crib, bed, and some toys in anticipation of E.M.
coming to her home, and she testified that E.M. would have her own room.
K.M.’s daughter, M.R., testified that she has a six-year-old and a one-year-
old, and K.M. cares for the children in her home while M.R. is at work. M.R. testified
that she would be able to support K.M. in caring for E.M. and could watch E.M. for
K.M. and Uncle.
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MOTHER’S FIRST ISSUE
In issue one, Mother challenges the legal and factual sufficiency of the
evidence supporting terminating her parental rights under section 161.001(b)(1)(E)
of the Texas Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(E). Mother
asserts that, given her mental health diagnoses, there is no evidence that she engaged
in a voluntary, deliberate, and conscious course of endangering conduct.
When reviewing the legal sufficiency of the evidence, we review all the
evidence in the light most favorable to the finding to determine whether “a
reasonable trier of fact could have formed a firm belief or conviction that its finding
was true.” In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could, and we disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. Id. If no reasonable factfinder could
form a firm belief or conviction that the matter that must be proven is true, the
evidence is legally insufficient. Id.When reviewing the factual sufficiency of the evidence, we must 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. Id. We give due
consideration to evidence that the factfinder could reasonably have found to be clear
and convincing. Id. We consider whether disputed evidence is such that a reasonable
13
factfinder could not have resolved that disputed evidence in favor of its ruling. Id.If, in light of the entire record, the disputed evidence that a reasonable factfinder
could not have credited in favor of the finding is so significant that a factfinder could
not reasonably have formed a firm belief or conviction, the evidence is factually
insufficient. Id.The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “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 Ann. § 101.007; In the Interest of J.L.,
163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the parent committed
one or more predicate acts or omissions and that termination is in the child’s best
interest. See Tex. Fam. Code Ann. § 161.001(b); see also In the Interest of J.L., 163
S.W.3d at 84. We will affirm a judgment if any one of the grounds is supported by
legally and factually sufficient evidence and the best-interest finding is also
supported by legally and factually sufficient evidence. In the Interest of C.A.C., Jr.,
No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont May 5,
2011, no pet.) (mem. op.). However, when, as here, a parent challenges a trial court’s
findings under section 161.001(b)(1)(E), we must review the sufficiency of that
ground as a matter of due process and due course of law. In the Interest of N.G., 577
S.W.3d 230, 235 (Tex. 2019).
14
Section 161.001(b)(1)(E) of the Family Code allows for termination of a
parent’s rights if the trier of fact finds by clear and convincing evidence that the
parent has “engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the
child[.]” Tex. Fam. Code Ann. § 161.001(b)(1)(E). Under subsection (E),
endangerment means to expose the child to loss or injury or to jeopardize a child’s
emotional or physical health. In the Interest of M.L.L., 573 S.W.3d 353, 363 (Tex.
App.—El Paso 2019, no pet.); In the Interest of M.R.J.M., 280 S.W.3d 494, 502
(Tex. App.—Fort Worth 2009, no pet.). Termination of parental rights under
subsection (E) must be based on more than a single act or omission and requires a
voluntary, deliberate, and conscious course of conduct by the parent. In the Interest
of M.L.L., 573 S.W.3d at 363-64. “Scienter is not required for an appellant’s own
acts under [s]ection 161.001(b)(1)(E), although it is required when a parent places
her child with others who engage in endangering acts.” In the Interest of I.D.G., 579
S.W.3d 842, 851 (Tex. App.—El Paso 2019, pet. denied) (op. on reh’g). The
endangering conduct need not occur in the child’s presence, and it may occur both
before and after the Department removed the child. Id. at 851.
A parent’s conduct that subjects a child’s life to instability and uncertainty
endangers the child’s emotional or physical well-being. In the Interest of M.L.L., 573
S.W.3d at 363. As used in subsection (E), the term “conduct” includes both the
15
parent’s actions and failures to act. In the Interest of M.J.M.L., 31 S.W.3d 347, 351
(Tex. App.—San Antonio 2000, pet. denied). Endangerment is not limited to actions
directed toward the child, and it includes the parent’s actions before the child’s birth.
In the Interest of J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Mental illness is not a
ground for terminating the parent-child relationship, but untreated mental illness can
expose a child to endangerment and is a factor the trial court may consider. In the
Interest of S.R., 452 S.W.3d 351, 363 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). In determining whether a parent endangered the child’s physical and
emotional well-being, the factfinder may consider evidence of a parent’s failure to
comply with services to improve her mental health. Id. at 365.
The trial judge heard evidence that Mother suffers from suicidal ideation and
has longstanding mental health issues. Mother testified that she believes her mental
health issues affect her ability to care for E.M., and that she believes placement with
Uncle is in E.M.’s best interest. In addition, the trial judge heard evidence that the
parents’ residence was unsanitary, smelled of dog urine, and contained trash.
Moreover, the trial judge heard evidence that Mother failed to complete services
designed to improve her mental health, such as a psychological evaluation,
psychiatric evaluation, and individual counseling. The trial judge also heard
evidence that during visits with E.M., Mother was unable to console E.M. The trial
judge also heard evidence that Mother and Father were involved in domestic
16
violence against each other, and Mother had been incarcerated for assaulting her
boyfriend. Furthermore, the trial judge heard Barrientes testify that Mother failed to
show that she has a stable home environment, and that Mother stated she is unable
to care for E.M. alone. In addition, the trial judge heard evidence that when E.M.
came into the Department’s care, she required a cranial band because one side of her
head was flatter than the other because she was always laid on the same side.
Viewing all the evidence in the light most favorable to the trial court’s finding,
we conclude that a reasonable trier of fact could have formed a firm belief or
conviction that Mother knowingly engaged in conduct which endangers the physical
or emotional well-being of the child. See Tex. Fam. Code Ann. § 161.001(b)(1)(E);
In the Interest of J.O.A., 283 S.W.3d at 345; In the Interest of J.F.C., 96 S.W.3d at
266; In the Interest of I.D.G., 579 S.W.3d at 851; In the Interest of M.L.L., 573
S.W.3d at 363; In the Interest of S.R., 452 S.W.3d at 363, 365;; In the Interest of
M.R.J.M., 280 S.W.3d at 502. We therefore conclude that the evidence was legally
sufficient. See In the Interest of J.F.C., 96 S.W.3d at 266. In addition, we conclude
that the factfinder could reasonably form a firm belief or conviction about the truth
of the Department’s allegations. See id. Considering the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the finding
is not so significant that a factfinder could not reasonably have formed a firm belief
or conviction. See id. Accordingly, we conclude that the evidence was factually
17
sufficient to support the trial court’s finding that Mother knowingly engaged in
conduct that endangered E.M.’s physical or emotional well-being. We overrule issue
one. Having concluded that the evidence was legally and factually sufficient to
support the trial court’s finding as to subsection 161.001(b)(1)(E), we need not reach
issue two, in which Mother challenges the legal and factual sufficiency of the
evidence supporting the trial court’s findings under section 161.001(b)(1)(O). See In
the Interest of N.G., 577 S.W.3d at 235; In the Interest of C.A.C., Jr., 2011 WL
1744139, at *1; see also Tex. R. App. P. 47.1.
MOTHER’S ISSUE THREE AND FATHER’S ISSUE ONE – BEST INTEREST
In her third issue, Mother challenges the legal and factual sufficiency of the
evidence supporting the trial court’s finding that termination of her parental rights is
in E.M.’s best interest. In his sole issue, Father challenges the legal and factual
sufficiency of the evidence supporting the trial court’s finding that termination of
his parental rights is in E.M.’s best interest. We address Mother’s issue three and
Father’s issue one together.
Regarding the child’s best interest, we consider a non-exhaustive list of
factors: (1) the desires of the child; (2) emotional and physical needs of the child
now and in the future; (3) emotional and physical danger to the child now and in the
future; (4) parental abilities of the individuals seeking custody; (5) programs
available to assist these individuals to promote the best interest of the child; (6) plans
18
for the child by these individuals or by the agency seeking custody; (7) stability of
the home or proposed placement; (8) acts or omissions of the parent which may
indicate that the existing parent-child relationship is not proper; and (9) any excuse
for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976); see Tex. Fam. Code Ann. § 263.307(b). No particular Holley factor is
controlling, and evidence of one factor may be sufficient to support a finding that
termination is in the child’s best interest. See In the Interest of A.P., 184 S.W.3d 410,
414 (Tex. App.—Dallas 2006, no pet.). The best-interest determination may rely on
direct or circumstantial evidence, subjective facts, and the totality of the evidence.
See In the Interest of N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no
pet.). Evidence that supports terminating parental rights due to endangerment of the
child also supports a finding that termination is in the child’s best interest. In the
Interest of C.H., 89 S.W.3d 17, 27 (Tex. 2002). The impact of a parent’s mental
illness on her ability to parent and the stability of the home are relevant facts in the
best-interest analysis. In the Interest of R.J., 579 S.W.3d 97, 118 (Tex. App.—
Houston [1st Dist.] 2019, pet. denied).
With respect to the child’s best interest, the trial judge heard evidence that
Mother and Father were involved in ongoing domestic violence against each other,
and their home was unsanitary. The trial judge also heard evidence that neither
Mother nor Father could console E.M. In addition, the trial judge heard evidence
19
that Mother had stated that she is unable to care for E.M. by herself, and Mother and
Father both failed to demonstrate the ability to provide a stable home. Moreover, the
trial judge heard evidence that E.M.’s foster parents are meeting her needs, E.M. is
doing wonderfully in her placement with them, and that CASA believed adoption by
her foster parents is in E.M.’s best interest. Furthermore, the trial judge heard
evidence that Mother had been charged with assault two or three times. Additionally,
the trial judge heard Mother testify that she does not believe Father can provide a
safe home for E.M., and that her own mental health issues affect her ability to care
for E.M. The trial judge also heard Father testify that he believes placing E.M. with
Uncle is in her best interest. The trial judge further heard Uncle testify that Mother’s
mental health issues make her incapable of caring for E.M., and that Father is in poor
health and struggles to console E.M.
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. See Tex. Fam. Code Ann. § 263.307(a).
As the sole judge of the credibility of the witnesses and the weight to be given to
their testimony, the trial court could reasonably conclude that termination of the
parental rights of Mother and Father was in E.M.’s best interest. See Tex. Fam. Code
Ann. §§161.001(b)(2), 263.307; see also In the Interest of J.F.C., 96 S.W.3d at 266;
Holley, 544 S.W.2d at 371-72; In the Interest of R.J., 579 S.W.3d at 118. Viewing
all the evidence in the light most favorable to the trial court’s finding, we conclude
20
that a reasonable trier of fact could have formed a firm belief or conviction that
terminating the parental rights of Mother and Father is in E.M.’s best interest. See
Tex. Fam. Code Ann. § 161.001(b)(2); In the Interest of J.F.C., 96 S.W.3d at 266.
We further conclude that the factfinder could reasonably form a firm belief or
conviction about the truth of the Department’s allegations, and considering the entire
record, the evidence that a reasonable factfinder could not have credited in favor of
the finding is not so significant that a factfinder could not reasonably have formed a
firm belief or conviction. See id. Therefore, the evidence was legally and factually
sufficient.
We conclude that the Department established, by clear and convincing
evidence, that termination of the parental rights of Mother and Father is in E.M.’s
best interest. See Tex. Fam. Code Ann. § 161.001(b)(2); In the Interest of C.A.C.,
Jr., 2011 WL 1744139, at *1. Accordingly, we overrule Mother’s third issue and
Father’s sole issue.
MOTHER’S FOURTH ISSUE
In her fourth issue, Mother argues that the trial court erred by appointing the
Department as E.M.’s permanent managing conservator. Mother argues that the trial
court did not make a finding that appointing a parent as E.M.’s managing conservator
would significantly impair E.M.’s physical health or emotional development. See
Tex. Fam. Code Ann. § 153.131.
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We review a trial court’s conservatorship determination for an abuse of
discretion, and we will reverse only if the trial court’s decision is arbitrary or
unreasonable. In the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). “Section
153.131 applies when the parents’ parental rights have not been terminated.
However, when the parents’ parental rights have been terminated, section 161.207
governs the appointment of a managing conservator.” In the Interest of A.B., No. 05-
18-00649-CV, 2018 WL 4784578, at *5 (Tex. App.—Dallas Oct. 4, 2018, pet.
denied) (mem. op.). Section 161.207 provides that the trial court must 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 Ann. § 161.207; see In the Interest of A.B., 2018 WL 4784578, at *5.
Having concluded that the evidence was legally and factually sufficient to
support the trial court’s findings that Mother committed the predicate act described
in section 161.001(b)(1)(E) and that termination of Mother’s parental rights is in
E.M.’s best interest, we cannot conclude that the trial court abused its discretion by
appointing the Department as managing conservator of E.M. See In the Interest of
A.B., 2018 WL 4784578, at *5; see also Tex. Fam. Code Ann. § 161.207.
Accordingly, we overrule Mother’s fourth issue.
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MOTHER’S FIFTH ISSUE
In issue five, Mother argues that the trial court erred by appointing the
Department as E.M.’s permanent managing conservator instead of Uncle. Mother
contends that Uncle “had intervened and was rightly before the Court to be
considered for the appointment as the managing conservator[,]” and she argues that
the evidence was insufficient to support the conclusion that appointing the
Department as managing conservator is in E.M.’s best interest.
“On appeal, a party may not complain of errors that do not injuriously affect
her or that merely affect the rights of others.” In the Interest of D.C., 128 S.W.3d
707, 713 (Tex. App.—Fort Worth 2004, no pet.). Uncle is not a party to this appeal.
Mother has not explained how the trial court’s decision to appoint the Department
managing conservator instead of Uncle injured or affected her own rights; therefore,
she lacks standing to complain of errors affecting Uncle’s rights. See id.The trial court heard evidence that Uncle’s job as a trucker required him to be
away from home six days per week, and that if E.M. were in his care, he intended
for his wife to care for E.M. while he was working. In addition, the trial judge heard
evidence that Uncle had not become licensed as a foster parent. Furthermore, the
trial judge heard evidence that Father and Mother did not want Uncle considered for
placement because he was abusive. Even if Mother had standing, she has not
demonstrated that the trial court’s decision was arbitrary or unreasonable. See In the
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Interest of J.A.J., 243 S.W.3d at 616. Accordingly, we overrule Mother’s fifth issue.
Having overruled Father’s sole issue and each of Mother’s issues, we affirm the trial
court’s judgment terminating appellants’ parental rights.
AFFIRMED.
________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on March 3, 2021
Opinion Delivered April 15, 2021
Before Golemon, C.J., Kreger and Horton, JJ.
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