in the Interest of R.H., M.D.J. and M.K. Children v. Department of Family and Protective Services ( 2015 )

Opinion issued July 28, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00874-CV
———————————
IN THE INTEREST OF R.H., M.D.J., AND M.K., CHILDREN
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Case No. 74587
MEMORANDUM OPINION
After a bench trial, the trial court terminated the parental rights of appellant,
D.K., to her minor children, R.H., M.D.J., and M.K., named the Texas Department
of Family and Protective Services (“DFPS”) sole managing conservator of R.H.
and M.K., and named M.D.J.’s father sole managing conservator of M.D.J. See
TEX. FAM. CODE ANN. § 161.001 (West 2014). In nine issues on appeal, D.K.
challenges whether the evidence was legally and factually sufficient to support the
termination of her parental rights and whether she was denied counsel when the
trial court permitted her counsel to withdraw, refused to appoint new counsel to
represent her, and granted a contest to her affidavit of indigence. We affirm.
Background
On January 29, 2013, DFPS received a referral alleging that D.K. had
engaged in neglectful supervision of R.H., M.D.J., and M.K. On February 4, 2013,
DFPS filed an “Original Petition in Intervention for Protection of a Child for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship.” In the petition, which was filed in Harris County, DFPS sought
termination of D.K.’s parental rights to her son, M.D.J. The trial court signed an
“Order for Protection of a Child in an Emergency and Notice of Hearing” that
same day, appointing DFPS as the temporary sole managing conservator of M.D.J.
The trial court further found that D.K. was indigent and appointed attorney Ricardo
Ramos to represent her. Finally, the trial court set February 10, 2014 as the
dismissal date for this case.
In March 2013, DFPS created a Family Service Plan for D.K.
On August 22, 2013, the Harris County court transferred the case to Brazoria
County.
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On November 21, 2013, Ramos filed a motion to withdraw as counsel. The
trial court granted the motion on November 26, 2013. The trial court appointed
new counsel, Toni Kersey, on December 12, 2013.
On January 9, 2014, the trial court signed an “Order Retaining Suit on
Court’s Docket and Setting Hearing Dates,” extending the dismissal date for the
case to August 11, 2014.
DFPS filed a first amended petition on March 28, 2014, seeking to terminate
D.K.’s parental rights to R.H., M.D.J., and M.K.
On May 28, 2014, attorney Kersey filed a “Motion for Withdrawal of
Counsel.”
On June 4, 2014, DFPS filed a “Second Amended Petition for Protection of
a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-
Child Relationship.” DFPS sought to terminate D.K.’s parental rights to R.H.,
M.D.J., and M.K., based on allegations that D.K.: (1) “knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which
endanger the physical or emotional well-being of the children, pursuant to
§ 161.001(1)(D), Texas Family Code;” (2) “engaged in conduct or knowingly
placed the children with persons who engaged in conduct which endangers the
physical or emotional well-being of the children, pursuant to § 161.001(1)(E),
Texas Family Code;” and (3) “failed to comply with the provisions of a court order
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that specifically established the actions necessary for the mother to obtain the
return of the child . . ., pursuant to § 161.001(1)(O), Texas Family Code.”
On July 17, 2014, the case was called to trial and witnesses were sworn.
The case was continued until September 29, 2014.
On August 18, 2014, DFPS filed a third amended petition, which DFPS
admitted at the trial on September 29, 2014, was a trial amendment, again seeking
to terminate D.K.’s parental rights and adding several allegations as bases for
termination.
The trial court held a bench trial on September 29, 2014. At the conclusion
of the hearing, the trial court found the allegations under Texas Family Code
section “161.001, Grounds D, E, and O to be true” and found “that the best interest
of the children will be served by terminating the parent-child relationship [sic] as
they exist between the three children and” D.K. The trial court then appointed
DFPS as the permanent managing conservator of R.H. and M.K. and appointed
M.D.J.’s father as the permanent managing conservator of M.D.J.
On October 17, 2014, the trial court signed a “Final Order in Suit Affecting
the Parent-Child Relationship.” In the order, the trial court found that D.K.
(1) “knowingly placed or knowingly allowed the children to remain in conditions
or surroundings which endanger the physical or emotional well-being of the
children, pursuant to § 161.001(1)(D), Texas Family Code;” (2) “engaged in
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conduct or knowingly placed the children with persons who engaged in conduct
which endangers the physical or emotional well-being of the children, pursuant to
§ 161.001(1)(E), Texas Family Code;” and (3) “failed to comply with the
provisions of a court order that specifically established the actions necessary for
the mother to obtain the return of the children . . ., pursuant to § 161.001(1)(O),
Texas Family Code.” The trial court further found that termination of D.K.’s
parental rights was in the best interest of the children. The trial court therefore
terminated D.K.’s parental rights to R.H., M.D.J., and M.K.
On October 28, 2014, D.K., through counsel Blair Parker, timely filed a
notice of appeal and a motion for new trial.
On November 6, 2014, D.K. filed a “Motion for Court Appointed Attorney
for Appeal Under TFC §107.013,” arguing that Parker “was hired by a Good
Samaritan to represent [D.K.] solely on a Motion for New Trial” and that she was
still indigent. D.K. attached an affidavit of indigency to her motion.
The court reporter filed a contest to D.K.’s affidavit of indigence on
November 7, 2014, and DFPS contested D.K.’s claim of indigence on November
10, 2014.
The trial court signed an “Order Granting Contest to Affidavit of Indigence”
on December 8, 2014, finding that the “original order of indigency is deemed a
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void order . . . based on the fact that there is no affidavit of indigency of [D.K.]
filed in the records of this cause.”
On December 17, 2014, the trial court denied the motion for new trial.
D.K.’s Representation at Trial
After the case was called for trial, but before evidence began, D.K.’s
appointed attorney, Toni Kersey, informed the trial court that she had a matter to
put on the record. Kersey stated:
As I informed the Court, Your Honor, my client, [D.K.], has decided
she would like to represent herself. She feels that she is the only one
that can best put forth her case to you. I have advised her on
numerous occasions of settlement offers that were, in my professional
opinion, in her best interest, and she has declined those. She has
insisted on going forward with the trial on her behalf, representing
herself. . . . At this point, she wants to represent herself, Your Honor.
The trial court then questioned D.K.:
The Court: Is that accurate, [D.K.]?
[D.K.]: Yes, sir.
The Court: [D.K.], have you – what’s the highest grade level that you
achieved?
[D.K.]: Ninth grade.
The Court: Did you leave school?
[D.K.]: I got pregnant with my first child.
The Court: Did you ever go back and get your G.E.D.?
[D.K.]: Yes.
The Court: After you got your G.E.D., did you ever get any college
courses?
[D.K.]: I just enrolled in college this year.
The Court: I think I know the answer to this; but I just want to make
sure on the record, you haven’t gone to law school?
[D.K.]: No, sir.
The Court: Have you studied law?
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[D.K.]: No, sir.
The Court: Do you understand that you are at a significant
disadvantage by not being a lawyer if you represent yourself,
specifically in that you don’t know the Rules of Evidence and the
Rules of Procedure?
[D.K.]: Yes, sir.
The Court: Do you understand that if I let you represent yourself that
you will be held by those same Rules of Procedure and Rules of
Evidence that everyone else will be held to?
[D.K.]: Yes, sir.
The Court: Do you understand that?
[D.K.]: Yes, sir.
...
The Court: Understanding that and understanding that you’re going to
be held to the same Rules of Procedure and Rules of Evidence, do you
still want to represent yourself in this case?
[D.K.]: I do because I don’t feel like nobody is going to fight for my
kids like I am.
The Court: All right. Let me give you an example. You might fight
for your kids, but it’s like walking into a boxing ring with both of
your hands tied behind your back.
You may want to get in there and fight, but you’re not going to
be able to hit anybody because your hands are tied behind your back.
Does that make sense?
[D.K.]: Yes, sir.
The Court: Do you still want to get into this boxing ring and fight with
your hands tied behind your back?
[D.K.]: No, sir. I do, but I don’t. Yes, I do.
The Court: You do?
[D.K.]: (Nods head affirmatively.)
The Court: Okay. So you want me to let Ms. Kersey go?
[D.K.]: Yes.
...
The Court: . . . But there’s a request that your rights be terminated.
Do you understand that?
[D.K.]: Yes, sir.
The Court: And if your rights are terminated, do you understand that’s
termination for all time?
[D.K.]: Yes, sir.
...
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The Court: Understanding all that, do you still want to proceed
representing yourself?
[D.K.]: I do, but I don’t because I really don’t know all the law. All I
know is what I know. I don’t know if that’s going to count for
anything.
The Court: I don’t know if it will or if it won’t. I can’t make this
decision for you, [D.K.]. Only you can make that decision.
Ms. Kersey has brought it to my attention because we haven’t
started the evidence yet, and I’m giving you an opportunity to make
that decision.
[D.K.]: I don’t want to be stupid, but I want to do it.
The Court: You want to do it yourself?
[D.K.]: Yeah, I’ll do it myself.
...
The Court: All right. Is anyone threatening you in any way or
promising you anything to cut your attorney loose?
[D.K.]: No, sir.
The Court: You’re freely and voluntarily doing this, and you want to
represent yourself on your own?
[D.K.]: Yes, sir.
The Court: All right. Do you want to talk to your attorney one more
time before we move forward, or are you ready to roll?
[D.K.]: I think I’m ready to go.
D.K.’s counsel, Toni Kersey, then interjected, stating that she had advised D.K. “of
her Fifth Amendment right to refuse to answer for anything that could incriminate
her.” The trial court then discussed the right to remain silent with D.K. The trial
court informed D.K. that she had the right to have an attorney appointed to
represent her prior to responding to any questions that could incriminate her. The
trial court again questioned D.K.:
The Court: . . . Do you understand that if I cut Ms. Kersey loose and
allow you to represent yourself, if you get to the point where you
believe that there’s an answer that might incriminate you, you can
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stop these proceedings and I’ll appoint another attorney to come
advise you with regard to that matter?
I know Ms. Kersey. I know she’s here on my criminal docket,
as well as my family docket, so I know she knows criminal law. But
I’ll appoint another attorney.
Do you understand that?
[D.K.]: Yes, sir.
After providing extensive admonishments to D.K., which encompassed
approximately 14 pages of the reporter’s record, the trial court stated: “Ms. Kersey
. . . I will grant her request and release you.”
Finally, after a short recess was taken during D.K.’s testimony at trial, the
trial court declined to appoint new counsel to represent D.K.:
The Court: [D.K.], come on back up. I understand you had a question
or something you want to ask me before we proceed.
[D.K.]: I wanted to see if I could get that lawyer.
The Court: Ma’am?
[D.K.]: If I can get that lawyer back.
The Court: You just let yours go.
[D.K.]: I know.
The Court: I’m not bringing her back. We’ve already started.
[D.K.]: I know.
The Court: That’s why I went through all those questions with you.
[D.K.]: I know. We can just – I guess I’m – it’s okay.
...
The Court: . . . But if you want to talk to them again, we can; and if
you don’t, we’ll go ahead.
[D.K.]: We can go ahead.
The Court: You want to go ahead?
[D.K.]: Go ahead.
D.K. represented herself through the conclusion of the trial.
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D.K.’s Testimony
D.K. was the first witness called to testify. She testified that she is the
biological mother of three boys: R.H., who was 13 years old at the time of trial;
M.D.J., who was 11 years old; and M.K., who was 3 years old.
D.K. and her children lived with D.K.’s parents until their deaths in 2011.
After their deaths, D.K. moved in with her sister-in-law, Tasha, where they lived in
an apartment in Lake Jackson. D.K., M.D.J., and M.K. lived in Tasha’s apartment
for approximately six months; R.H. was living with his father. M.D.J. attended
school during this time.
In 2012, D.K., R.H., M.D.J., and M.K. all moved to Cypress, where they
lived in a house belonging to D.K.’s brother, James. They lived in James’ house
for approximately one year. At the time of trial, James was serving a five-year
sentence in the Texas Department of Corrections, and he had other felony
convictions prior to that time; James’ convictions include aggravated robbery,
assault with bodily injury, two counts of delivery of a controlled substance, two
counts of possession of a controlled substance, and evading arrest.
Both R.H. and M.D.J. attended school while they lived in Cypress. Further,
in approximately January or February of 2012, D.K. met R.H.’s teacher, Trenece
Myers.
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Toward the end of 2012, D.K. and her boys moved out of James’ house and
lived at a Motel 6, where they stayed for several weeks. In November 2012 they
moved to Yorktown, where they stayed with D.K.’s brother, William, for several
weeks. They went to Yorktown for a job opportunity for D.K. D.K. removed her
boys from school in order to take them to Yorktown. Further, they lived with
William even though he had multiple felony convictions, including a conviction
for aggravated assault with a deadly weapon.
When the job opportunity in Yorktown failed to materialize, D.K. and her
boys moved back to Cypress, where they once again stayed in the Motel 6. D.K.’s
boyfriend, Marcus, also lived with them in the motel.
On January 24, 2013, D.K. signed a document providing temporary
guardianship over R.H., M.D.J., and M.K. to Trenece Myers. She transferred
custody of her boys to Myers because she was preparing to turn herself in to the
county jail “for some outstanding tickets and warrants that [she] had.” The
outstanding warrants were for misdemeanor offenses, including altering a
prescription and failing to appear. She informed Myers that it could take up to 45
days from the date she turned herself in to the jail before she was released from
custody.
Myers took custody of R.H., who was then 11 years old, and M.D.J., who
was 8 years old. Although D.K. had previously met Myers and Myers had
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previously kept her children overnight and for “about two weeks,” D.K. had never
been to Myers’ residence and she had only spoken to Myers’ husband for
approximately 10–20 minutes.
Another woman, Alexis White, took custody of M.K., who was only one
year old, because Myers could not care for a one-year-old. D.K. did not know
White; D.K. relied on Myers’ relationship with White, as White was “one of
[Myers’] real good family friends,” as the basis for transferring custody of M.K. to
White.
Both R.H. and M.D.J. remained out of school from November 2012, when
they moved to Yorktown, until the end of January 2013, when Myers assumed
custody over them.
After transferring guardianship of her children to Myers and White, but
before turning herself in to the county jail, D.K. visited with R.H. and M.D.J. one
time, for one hour at a McDonald’s, and she visited with M.K. once, which was an
overnight visit.
D.K. turned herself in to the county jail on January 29, 2013, and was
released on February 16, 2013. Also on January 29, 2013, Myers called child
protective services to report that D.K. had engaged in neglectful supervision of
R.H., M.D.J., and M.K. After her release from jail, D.K. next visited with her
children in March 2013.
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D.K. also testified regarding her drug usage. She admitted to having taken
hydrocodone from 2006 through 2013, which had been prescribed to her after she
was in an automobile accident in 2006. She further admitted to taking marijuana,
cocaine, and methamphetamines, beginning at some point in 2012. D.K. tested
positive for methamphetamines, marijuana, and cocaine in March and April of
2013.
D.K. stopped using drugs at some point in 2013, but she relapsed while
working at a nursing home in Lake Jackson. Further, she missed a court-ordered
urinalysis in December 2013. And on April 1, 2014, she admitted to DFPS that
she had used methamphetamine.
D.K. testified that she last used drugs on April 1, 2014; she had been sober
since April 2, 2014. But she refused, when asked on multiple occasions, to
identify the person or persons who provided her with the drugs.
D.K. had custody of her children, who were still living with her, when she
began using drugs. She left her boys with her boyfriend while she was using the
drugs. But, when asked if she “came back under the influence of drugs and [was]
around [her] children,” she replied: “Yes, sir.”
Regarding caring for her children, D.K. testified that the boys had a
pediatrician while they lived in Lake Jackson, which they left in 2011, and had not
had a pediatrician since that time. And, although M.D.J. had febrile seizures
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“when he was younger,” she did not take him to the doctor because he “hadn’t had
a seizure since 2007,” even though she was aware he could have additional
seizures; the only reason D.K. provided for failing to take M.D.J. to the doctor for
his seizures was that she “was in [her] addiction.” Further, the boys did not have a
dentist. In fact, D.K. never took R.H. to the dentist and M.D.J. had only been to
the dentist twice, including once in 2010, when he went for pain that was caused
by cavities. Finally, D.K. testified that M.D.J. had been held back a grade, because
she had not kept him in school, and she admitted that failing to keep him in school
was not in his best interest.
D.K. signed and understood the Family Service Plan. After signing the
service plan, she missed her visits with her children for “a couple of weeks.” She
failed to take her drug and alcohol assessment within three months, and she failed
to attend NA and AA classes, which she was required to attend weekly beginning
when she signed the service plan, from March 2013 through March 2014, as she
attended her first AA or NA meeting in April 2014. And she failed to maintain
stable employment until June 10, 2014.
At the time of trial, D.K. was working at an internship, which she had started
on June 10, 2014, and where she was earning $500 per month. Although she was
employed, she did not provide support to her children. Further, she moved in to
Perpetual Help Home, in Victoria, on April 2, 2014, and she was still living there
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at the time of trial. The shelter, however, did not permit children over the age of
13 to reside at the shelter. Thus, although D.K. had “a support group there that is
willing to help [her] find a place outside of there when the time is necessary,” she
could not live at the shelter with all of her children.
Caseworker’s Testimony
The DFPS caseworker, Trisha West, was the second witness to testify. West
testified that it was in the best interest of the children for D.K.’s parental rights to
be terminated. She further testified that DFPS was concerned, because the services
required of D.K. had not been completed, “drug treatment [hadn’t] even been
started,” and D.K. did not have a stable home.
Guardian Ad Litem’s Testimony
The guardian ad litem for the children, Christian Landry, also testified.
Landry testified that both R.H. and M.D.J. “at separate times made the exact same
allegations and outcries of staying in trucks, staying in hotels, having multiple men
in the room, having their mom doing things with men, not having food, being hurt
or not going to the doctor.” When DFPS took custody of the children, they were
aggressive, disrespectful, and far behind in school, and they needed medical
attention. She further testified: “The children, where they are now, all of their
needs are being met and exceeded. They have come so far in their schooling and
their medical needs and their emotional stability. They’re just in a really great
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place.” Landry stated that the “children are afraid to go back with their mother.
They’re afraid of having to live in a truck again. They’re afraid of having the same
situations happen.” Further, “while they do love their mother, they don’t want to
go back to that situation ever.”
M.D.J. was with his father, in a “great home,” with siblings, and with the
ability to see R.H. and M.K., “because the foster parent has said that they [sic] will
facilitate that.” R.H. and M.K. were with foster parents, who were willing to
adopt. The foster mom “has put so much into both of those children. The church
that she goes to put so much into those children. The coaches and the teachers at
the school have also put a lot into [R.H.], especially.”
R.H. needs constant supervision. M.K. has speech problems. “The foster
mother has invested $6,000 to getting him into special private care to help with his
speech, which has come so far, and help with his social skills, and for him to feel
comfortable and work on his emotional issues.”
The children were afraid that they would have to go back to their mother,
which has hindered their ability to move on.
M.D.J.’s Father’s Testimony
Finally, M.J., M.D.J.’s father, testified. M.J. testified that he was requesting
that he be declared M.D.J.’s father and that he and his wife intended to adopt
M.D.J.
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D.K.’s Representation
In her first three issues, D.K. argues that the trial court committed three
separate reversible errors in relation to her right to counsel. D.K. contends that the
trial court (1) erred by releasing D.K.’s attorney without finding good cause for
relieving counsel of her duties and by releasing counsel “in the middle of trial”;
(2) failed to appoint new counsel to represent D.K. when she requested counsel
during trial; and (3) erred by granting a contest to D.K.’s affidavit of indigence
after D.K. filed her notice of appeal.
D.K. Cannot Complain That the Trial Court Released Counsel
In her first issue, D.K. argues that the trial court was required, by section
107.013 of the Texas Family Code, to appoint counsel to represent her and that the
trial court lacked authority to allow counsel to withdraw, because the trial court did
not make a finding of good cause for the withdrawal. D.K. contends that the trial
court lacked authority to “grant D.K.’s ‘request’ that her attorney be released” and
that D.K. was not “authorized to release her attorney.” D.K. therefore concludes
that “the trial court reversibly erred by allowing Kersey to withdraw without a
finding of good cause on the record,” and she further argues that “it was
fundamentally unfair to release the attorney in the middle of trial.”
Although there is no constitutional right to appointment of counsel in every
parental termination proceeding, “Texas has adopted a higher standard by
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mandating the appointment of an attorney ad litem for an indigent parent who
opposes the termination of the parent-child relationship in a suit filed by a
governmental entity.” In re A.H.L., 214 S.W.3d 45, 51 (Tex. App.—El Paso 2006,
pet. denied); see Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 27–32, 101 S. Ct.
2153, 2159–62 (1981). Once appointed, an attorney must continue “to serve as an
attorney ad litem for a parent” until either the “suit affecting the parent-child
relationship is dismissed,” the appeals related to the final order terminating
parental rights are exhausted or waived, or “the attorney is relieved of the
attorney’s duties or replaced by another attorney after a finding of good cause is
rendered by the court on the record.” TEX. FAM. CODE ANN. § 107.016(2) (West
2014). The statute does not expressly provide an indigent parent with a right of
self-representation. See In re A.H.L., 214 S.W.3d at 51–52. But, if a trial court
elects to permit a parent in a parental termination proceeding to proceed pro se, the
trial court must inform the parent of the dangers of self-representation before
permitting the parent to proceed pro se. See In re C.L.S., 403 S.W.3d 15, 19–22
(Tex. App.—Houston [1st Dist.] 2012, pet. denied).
Here, the trial court appointed counsel, Kersey, to represent D.K. After the
trial began, but before any evidence was presented, Kersey informed the trial court
that D.K. wanted to represent herself. The trial court then admonished D.K.
regarding the disadvantages of self-representation. Over the course of
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approximately 14-pages of admonishments and discussion, D.K. told the trial court
that she wanted to represent herself, which she reiterated numerous times, and she
told the trial court that she wanted the trial court to let Kersey go. The trial court
then stated that he would “grant [D.K.’s] request and release” Kersey.
By stating to the trial court that she wanted to represent herself and that she
wanted the trial court to let Kersey go, D.K. asked the trial court to release Kersey
and to allow D.K. to proceed pro se. And, because the “invited error” doctrine
states that “a party cannot complain on appeal that the trial court took a specific
action that the complaining party requested,” D.K. may not complain on appeal
that the trial court granted her request and released Kersey. Tittizer v. Union Gas
Corp., 171 S.W.3d 857, 862 (Tex. 2005) (per curiam); see Prystash v. State, 3
S.W.3d 522, 530–32 (Tex. Crim. App. 1999); Johnson v. Harris Cnty., No. 01-14-
00383-CV, 2015 WL 3485913, at *2–3 (Tex. App.—Houston [1st Dist.] June 2,
2015, no pet. h.) (mem. op.). Accordingly, we overrule D.K.’s first issue.1
1
In her brief, D.K. relies on In re E.A.F. to support her argument that “the trial
court reversibly erred by allowing Kersey to withdraw without a finding of good
cause on the record.” In that case, the Fourteenth Court of Appeals stated that the
Family Code “deprives the trial court of the authority to permit the withdrawal of
[an] attorney ad litem absent a finding of good cause” and does “not allow [an
indigent parent] to release a court-appointed attorney ad litem.” In re E.A.F., 424
S.W.3d 742, 749 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Our sister
court did not, however, address the application of the invited error doctrine as part
of its analysis. Accordingly, because D.K. requested that the trial court allow her
to proceed pro se and asked the trial court to release Kersey, we do not reach the
issues addressed by our sister court and we do not consider whether in other
circumstances the trial court could have erred by granting D.K.’s requests.
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D.K. Waived Any Argument Regarding Appointment of New Counsel During
Trial
In her second issue, D.K. argues that the trial court “promised D.K. that he
would stop the trial and appoint a new lawyer for her if she asked for one” and that
the trial court erred by refusing to appoint counsel to represent her when she
requested counsel during the trial.
As an initial matter, D.K. erroneously argues that the trial court “promised”
her that he would appoint new counsel upon her request. Contrary to D.K.’s
contention, the trial court informed D.K. that he would appoint new counsel to
represent her if she believed that an answer to a question posed to her might
incriminate her. But when D.K. requested new counsel during trial, no question
which might have elicited an incriminating response had been posed to her.
More importantly, D.K. provides no citations to legal authority and merely
provides a brief, conclusory statement to support her argument for her second
issue. Accordingly, by failing to provide sufficient argument and authorities to
support issue two, D.K. has waived this issue. See TEX. R. APP. P. 38.1(i);
Abdelnour v. Mid Nat’l Holdings, Inc., 190 S.W.3d 237, 241–42 (Tex. App.—
Houston [1st Dist.] 2006, no pet.); Tesoro Petroleum Corp. v. Nabors Drilling
USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied).
Accordingly, we overrule appellant’s second issue.
20
Any Error In the Trial Court’s Order Sustaining a Contest to D.K.’s Affidavit of
Indigence Is Moot
In her third issue, D.K. argues that the trial court reversibly erred when it
sustained a contest to her affidavit of indigence. In support of her argument, D.K.
contends that the contest to her affidavit of indigence was not timely filed and that
“the contest did not contain required specifics about a good faith belief that D.K.’s
circumstances had materially and substantially changed.” D.K. further contends
that the order “improperly nullified the presumption of indigence to which D.K.
was entitled.”
A parent in a parental termination proceeding who claims indigence for the
purposes of receiving appointed counsel “must file an affidavit of indigence in
accordance with Rule 145(b) of the Texas Rules of Civil Procedure before the
court can conduct a hearing to determine the parent’s indigence under this section.”
TEX. FAM. CODE ANN. § 107.013(d) (West 2014). If the parent files an affidavit of
indigence and the trial court determines that the parent is indigent, the trial court
must appoint an attorney ad litem to represent the parent’s interests and the parent
is presumed to remain indigent for the duration of the suit and any subsequent
appeal unless a motion for reconsideration is filed. See id. § 107.013(a)(1), (e);
TEX. R. APP. P. 20.1(a)(3). Nevertheless, the clerk, the court reporter, or any party
may challenge the presumption that the parent remains indigent for purposes of
appeal by filing a contest in the trial court, which “contest must be filed within
21
three days after a notice of appeal is filed.” TEX. R. APP. P. 20.1(e)(2). If a contest
is filed, the trial court must hold a hearing and determine whether the parent
remains indigent. See TEX. R. APP. P. 20.1(i). Further, “[i]f the trial court sustains
a contest, the party claiming indigence may seek review of the court’s order by
filing a motion challenging the order with the appellate court without advance
payment of costs.” TEX. R. APP. P. 20.1(j)(1). Such a motion must be filed within
10 days after the order sustaining the contest is signed or the notice of appeal is
filed, whichever is later. See TEX. R. APP. P. 20.1(j)(2).
Here, the trial court found D.K. indigent on February 4, 2013, and appointed
counsel to represent her. After the trial court rendered judgment against her, D.K.,
through counsel, Blair Parker, timely filed a notice of appeal on October 28, 2014.
Both the court reporter and DFPS filed contests to D.K.’s affidavit or presumption
of indigence, and the trial court signed an “Order Granting Contest to Affidavit of
Indigence” on December 8, 2014. D.K. did not, however, file a motion
challenging the trial court’s order sustaining a contest to her affidavit or
presumption of indigence. Based on D.K.’s failure to file a motion challenging the
trial court’s order, this court determined, in an order issued February 3, 2015, that
D.K. is not indigent for purposes of appellate costs.
“The test for determining indigence is straightforward: ‘Does the record as a
whole show by a preponderance of the evidence that the applicant would be unable
22
to pay the costs, or a part thereof, or give security therefor, if [s]he really wanted to
and made a good-faith effort to do so?” In re C.H.C., 331 S.W.3d 426, 429 (Tex.
2011) (quoting Higgins v. Randall Cnty. Sheriff’s Office, 257 S.W.3d 684, 686
(Tex. 2008)). The rules of procedure allow for litigants to establish their indigence
in order to obtain access to the courts “without advance payment of costs.” E.g.,
TEX. R. APP. P. 20.1(a)(3).
In this case, the appellate filing fees have been paid, the clerk’s record was
filed on November 7, 2014, the reporter’s record was filed on March 30, 2015, and
D.K.’s amended brief, filed by counsel, Janice Berg, was filed on May 1, 2015.
Because (1) counsel Parker filed a motion for new trial on D.K.’s behalf and
represented her at the new trial hearing, (2) counsel Berg filed an appellate brief on
D.K.’s behalf and continues to represent her, and (3) the complete appellate record
has been filed, any error in the trial court’s order sustaining a contest to D.K.’s
affidavit or presumption of indigence has been rendered moot.
Accordingly, we overrule appellant’s third issue.
Sufficiency of the Evidence
In her fourth through sixth issues, D.K. argues that the evidence is legally
and factually insufficient to support the trial court’s findings that she (1) allowed
the children to remain in conditions or surroundings which endangered the
children’s physical or emotional well-being, (2) engaged in conduct that
23
endangered the physical or emotional well-being of her children, and (3) failed to
comply with the provisions of a court order that established the actions necessary
for her to obtain the return of her children from DFPS’s conservatorship. See TEX.
FAM. CODE ANN. § 161.001(1)(D), (1)(E), (1)(O). Further, in her seventh issue,
she contends that the evidence is legally and factually insufficient to support the
trial court’s finding that termination of her parental rights is in the children’s best
interest. See id. §161.001(2).
Standard of Review
A parent’s natural right to the “companionship, care, custody, and
management” of his or her children is of constitutional dimension and is an interest
“far more precious than any property right.” Santosky v. Kramer, 455 U.S. 745,
758–59, 102 S. Ct. 1388, 1397 (1982); accord In re E.R., 385 S.W.3d 552, 563
(Tex. 2012) (quoting Santosky); see Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985). A termination decree is complete, final, irrevocable, and divests for all time
that natural right as well as all legal rights, privileges, duties, and powers between
parents and their children except for the child’s right to inherit. Holick, 685
S.W.2d at 20. We strictly scrutinize termination proceedings and strictly construe
the involuntary termination statutes in favor of the parent. See id. However, “the
rights of natural parents are not absolute,” and “[t]he rights of parenthood are
accorded only to those fit to accept the accompanying responsibilities.” In re A.V.,
24
113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195
(Tex. 1994)). Recognizing that a parent may forfeit his or her parental rights by
his or her acts or omissions, the primary focus of a termination suit is protection of
the child’s best interests. See id.
In a case to terminate parental rights under section 161.001, the Department
must prove, by clear and convincing evidence, (1) that the parent committed one or
more of the enumerated acts or omissions justifying termination and (2) that
termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001;
see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Clear and convincing evidence
is “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.” In re J.O.A., 283
S.W.3d at 344 (quoting TEX. FAM. CODE ANN. § 101.007 (West 2014)). “Only one
predicate finding under section 161.001(1) is necessary to support a judgment of
termination when there is also a finding that termination is in the child’s best
interest.” In re A.V., 113 S.W.3d at 362. Thus, if the trial court’s judgment relies
on multiple predicate grounds, we may affirm on any one of those grounds. In re
D.S., 333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.); In re S.N., 272
S.W.3d 45, 49 (Tex. App.—Waco 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental-rights-
termination case under section 161.001, we look at all the evidence to determine
25
whether the evidence, viewed in the light most favorable to the finding, is such that
the factfinder could reasonably have formed a firm belief or conviction about the
truth of the issues on which DFPS bore the burden of proof. In re J.P.B., 180
S.W.3d 570, 573 (Tex. 2005) (per curiam); In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002). We defer to the trial court as fact-finder and resolve disputed facts in favor
of its finding if a reasonable factfinder could do so. See In re J.F.C., 96 S.W.3d at
266; Jordan v. Dossey, 325 S.W.3d 700, 712–13 (Tex. App.—Houston [1st Dist.]
2010, pet. denied).
Termination findings withstand a factual sufficiency challenge if the
evidence is such that a reasonable factfinder could form a firm belief or conviction
that the statutory grounds for termination exist. In re C.H., 89 S.W.3d 17, 18–19
(Tex. 2002). To reverse a case on factual insufficiency grounds, “the reviewing
court must detail the evidence relevant to the issue of parental termination and
clearly state why the evidence is insufficient to support a termination finding by
clear and convincing evidence.” Id. at 19.
Evidentiary Sufficiency That D.K. Engaged in Endangering Conduct
In her fifth issue, D.K. contends that the evidence is legally and factually
insufficient to support termination of her parental rights under Texas Family Code
section 161.001(1)(E). This provision provides a basis for terminating parental
rights because of child endangerment. “‘To endanger’ means to expose a child to
26
loss or injury or to jeopardize a child’s emotional or physical health.” Jordan, 325
S.W.3d at 723; accord In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo
2005, no pet.) (citing In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam)).
“Although ‘endanger’ means more than a threat of metaphysical injury or
the possible ill effects of a less-than-ideal environment, it is not necessary that the
conduct be directed at the child or that the child actually suffers injury.” In re
T.N., 180 S.W.3d at 383 (citing In re M.C., 917 S.W.2d at 269); see Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533–34 (Tex. 1987); see also In re J.O.A.,
283 S.W.3d at 345 (holding that endangering conduct is not limited to actions
directed toward child); Jordan, 325 S.W.3d at 723 (holding that danger to child
need not be established as independent proposition and may be inferred from
parental misconduct even if conduct is not directed at child and child suffers no
actual injury); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d
608, 616–17 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (explaining that
relevant conduct may occur either before or after child’s removal from home).
Under subsection 161.001(1)(E), a parent’s rights can be terminated when
she 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(1)(E). The parent’s conduct must cause
the endangerment, and the endangerment must be the result of a voluntary,
27
deliberate, and conscious course of conduct by the parent rather than a single act or
omission. Jordan, 325 S.W.3d at 723; In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.—Fort Worth 2003, no pet.). The parent’s conduct does not, however, have to
be directed at a specific child, as “the manner in which a parent treats other
children in the family can be considered in deciding whether that parent engaged in
a course of conduct that endangered the physical or emotional well-being of a
child.” Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221
S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
The relevant inquiry is whether evidence exists that the parent’s conduct—
including acts, omissions, and failures to act—directly endangered the child’s
physical well-being. See In re J.T.G., 121 S.W.3d at 125; In re D.M., 58 S.W.3d
801, 811–12 (Tex. App.—Fort Worth 2001, no pet.). Parental conduct may be
relevant even if it does not involve the child or result in actual harm to the child.
See Boyd, 727 S.W.2d at 533–34; In re D.M., 58 S.W.3d at 811.
DFPS presented evidence that, beginning in 2011, D.K. lacked stable
housing for herself and her children. From 2011 through January 2013, D.K. and
her children lived with D.K.’s sister-in-law, with her brother James, in a Motel 6,
with her brother William, back in the Motel 6, and, at some points, in a vehicle.
When D.K. and her children were living with D.K.’s brothers they were living with
convicted felons; James has convictions for aggravated robbery, assault, delivery
28
of a controlled substance, and possession of a controlled substance, and William
has a conviction for aggravated assault. Further, the children told the ad litem that
D.K. would have multiple men in the room when they stayed in hotels, and she
would do things with the men. Further, D.K. still lacked stable housing at the time
of trial, as she was staying in Perpetual Help Home, which does not permit
children over the age of 13 to reside in the home and is therefore not a suitable
home for R.H.
D.K. also failed to properly tend to her children’s medical needs. The
evidence shows that D.K.’s children did not have a pediatrician and had not had
one since 2011. D.K. did not take the children to a doctor, even though M.D.J. had
suffered from febrile seizures. The children also did not have a dentist; R.H. had
never been to a dentist, and M.D.J. had only been to the dentist for pain, when he
had cavities. Moreover, the children made “allegations and outcries of . . . not
having food, being hurt or not going to the doctor.”
D.K. did not obtain stable employment until June 10, 2014, which was more
than 16 months after DFPS became involved in the case and less than four months
before she testified at the trial. Further, D.K. testified that, although she was
employed, she did not provide support to her children.
D.K. admitted that she was incarcerated for a short time in late January and
early February 2013. Further, during her incarceration, she assigned temporary
29
guardianship over her children to Trenece Myers, whom she barely knew, and she
left R.H. and M.D.J. with Myers and Myers’ husband, who was an almost
complete stranger to D.K. D.K. then left M.K. with Alexis White, whom D.K. had
never even met, based solely on the recommendation of Myers.
D.K. removed R.H. and M.D.J. from school in November 2012, and the
children had not returned to school by the time she assigned guardianship over the
children to Myers. M.D.J. was later held back a grade.
Finally, D.K. admitted to taking hydrocodone from 2006 through 2013, and
she admitted to using methamphetamine, marijuana, and cocaine between 2012
and April 1, 2014. D.K. claimed to have stopped using at some point in 2013, but
she admitted to relapsing. Although she contended that she never used drugs
around her children, she conceded that she came home and was around her
children while under the influence of drugs. She failed to attend AA or NA
meetings, as required by her Family Service Plan, from March 2013 through
March 2014, and she failed to take her drug and alcohol assessment as directed.
And she refused, upon repeated questioning, to identify any person or persons who
had provided her with the drugs.
“Narcotics use, in some circumstances, may give rise to termination under
section 161.001(1)(E).” Toliver v. Tex. Dep’t of Family & Protective Servs., 217
S.W.3d 85, 98 (Tex. App.—Houston [1st Dist.] 2006, no pet.); see In re J.O.A.,
30
283 S.W.3d at 345; Walker, 312 S.W.3d at 617–18; In re S.N., 272 S.W.3d at 52.
And “evidence of improved conduct, especially of short-duration, does not
conclusively negate the probative value of a long history of drug use and
irresponsible choices.” In re J.O.A., 283 S.W.3d at 346; see Toliver, 217 S.W.3d
at 98.
Further, although failure to maintain stable housing will not, by itself,
sustain a finding under subsection 161.001(1)(E), “[f]ailure to maintain a stable
home, combined with failure to provide for the children’s needs, may also support
a finding under subsection 161.001(1)(E).” In re J.R., 171 S.W.3d 558, 578 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). Similarly, imprisonment, standing
alone, does not constitute endangering conduct, but “[i]t is a fact properly
considered . . . on the issue of endangerment,” and DFPS “need only show
incarceration was part of a course of conduct endangering the child.” Smith v. Tex.
Dep’t of Protective & Regulatory Servs., No. 03-02-00598-CV, 2003 WL
22096141, at *14 (Tex. App.—Austin Sept. 11, 2003, no pet.) (mem. op.); see
Boyd, 727 S.W.2d at 533–34. And the failure to tend to children’s medical needs
and ensure that they are attending school can also be considered when evaluating a
parent’s course of conduct that endangers the children. See Smith, 2003 WL
22096141, at *14.
31
Therefore, viewing all of the evidence in this case in a light most favorable
to the trial court’s findings, we hold that a reasonable factfinder could form a firm
belief or conviction that D.K. engaged in conduct or knowingly placed her children
with persons who engaged in conduct that endangered the children’s physical or
emotional well-being. See TEX. FAM. CODE ANN. § 161.001(1)(E); In re J.L., 163
S.W.3d 79, 87 (Tex. 2005); see also Smith, 2003 WL 22096141, at *14 (“When
this evidence is coupled, however, with the evidence demonstrating [mother’s]
failure to ensure that her two older girls were attending school and both [mother’s]
and [father’s] use of drugs and their resulting incarcerations, we cannot say that a
reasonable fact finder could not have formed a firm belief or conviction that the
children were endangered by the [parents’] conduct.”). Accordingly, we overrule
appellant’s fifth issue.
Evidentiary Sufficiency That D.K. Placed the Children in Endangering
Surroundings And That D.K. Failed to Comply With a Court Order
Because we conclude that the evidence is both legally and factually
sufficient to support the trial court’s finding under section 161.001(1)(E), and
because a finding as to any one of the acts or omissions enumerated in section
161.001(1) is sufficient to support termination, we need not address D.K.’s fourth
issue challenging the trial court’s findings under section 161.001(1)(D) or D.K.’s
sixth issue challenging the trial court’s findings under section 161.001(1)(O). See
In re A.V., 113 S.W.3d at 362; In re D.S., 333 S.W.3d at 388; Walker, 312 S.W.3d
32
at 618; In re S.N., 272 S.W.3d at 49. However, we must still determine whether
the evidence was sufficient to support the trial court’s finding that termination was
in the children’s best interest, pursuant to section 161.001(2).
Evidentiary Sufficiency of Best-Interest Findings
In her seventh issue, D.K. contends that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental
rights is in her children’s best interest. See TEX. FAM. CODE ANN. § 161.001(2).
A strong presumption exists that a child’s best interest is served by
maintaining the parent–child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). In Holley v. Adams, the Texas Supreme
Court provided a nonexclusive list of factors that the trier of fact in a termination
case may use in determining the best interest of the child. 544 S.W.2d 367, 371–
72 (Tex. 1976). These factors include (1) the desires of the child; (2) the emotional
and physical needs of the child now and in the future; (3) the emotional and
physical danger to the child now and in the future; (4) the parental abilities of the
individuals seeking custody; (5) the programs available to assist these individuals
to promote the best interest of the child; (6) the plans for the child by these
individuals or by the agency seeking custody; (7) the stability of the home or
proposed placement; (8) the acts or omissions of the parent that may indicate that
the existing parent–child relationship is not a proper one; and (9) any excuse for
33
the acts or omissions of the parent. Id. These factors are not exhaustive, and there
is no requirement that DFPS prove all factors as a condition precedent to parental
termination. See In re C.H., 89 S.W.3d at 27; Adams v. Tex. Dep’t of Family &
Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no
pet.).
The Children’s Desires
The guardian ad litem for the children, Christian Landry, testified that the
“children are afraid to go back with their mother” and that, “while they do love
their mother, they don’t want to go back to that situation ever.”
The Children’s Present and Future Emotional and Physical
Needs
“[T]he need for permanence is a paramount consideration for the
child[ren]’s present and future physical and emotional needs.” In re J.D., 436
S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing In re
D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.)).
“The goal of establishing a stable, permanent home for a child is a compelling
government interest.” Id. Further, a “fact finder may infer from a parent’s past
inability to meet a child’s physical and emotional needs an inability or
unwillingness to meet a child’s needs in the future.” Id.
Here, D.K. did not provide a stable home for her children from 2011 through
2013, and she still did not have stable housing at the time of trial. She moved the
34
children between schools and school districts, and she removed them from school
altogether for several months.
Further, Landry testified that, when DFPS took custody of the children, they
were aggressive, disrespectful, far behind in school, and in need of medical
attention. At the time of trial, when R.H. and M.K. had been placed with a foster
family and M.D.J. had been placed with his father, all of the children’s needs
“[were] being met and exceeded,” they were progressing in school, their medical
needs were being met, and their emotional stability was improving.
Landry testified that M.D.J. lives with his father, in “a great home.” R.H.
and M.K. are with a foster family that is willing to adopt them. R.H. needs
constant supervision, and M.K. has speech problems. The foster mom has “put so
much into both of those children,” her church has also “put so much into those
children,” and the coaches and teachers at school have as well, especially with
R.H. The foster mom has also invested in obtaining special private care to help
M.K. with his speech, his social skills, and his emotional issues.
Finally, D.K. told the children, on multiple occasions, that they would be
returning to live with her, which has hindered their ability to move on emotionally,
and the children are afraid to return to D.K.
35
Present and Future Emotional and Physical Danger to the
Children
Evidence of illegal drug use by a parent is “relevant in determining whether
a parent poses a present or future risk of physical or emotional danger to” her
children. In re S.N., 272 S.W.3d at 52; see also In re J.D., 436 S.W.3d at 118
(“The same evidence of acts or omissions used to establish grounds for termination
under section 161.001(1) may be probative in determining the best interest of the
child.”).
Here, D.K. admitted to taking hydrocodone from 2006 through 2013 and to
using methamphetamine, marijuana, and cocaine from 2012 through April 2014.
She further admitted to being under the influence of drugs in the presence of her
children.
Parental ability and programs available to assist in promoting
the children’s best interests
“A parent’s inability to provide adequate care for her children, unstable
lifestyle, lack of a home and income, lack of parenting skills, and poor judgment
may be considered when looking at the children’s best interest.” In re J.D., 436
S.W.3d at 119 (citing In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth
2003, no pet.)).
D.K. lacked a stable home from 2011 through 2013, and she continued to
lack a stable home suitable for her children at the time of trial. She also lacked
36
stable employment until June 10, 2014. Moreover, even after obtaining stable
employment, she earned $500 per month and failed to provide any support to her
children.
Further, the evidence at trial shows that D.K. relied on other people to
support her children: her brothers, her sister-in-law, and her boyfriend. She also
did not take the children to a doctor, such that they were in need of medical
attention when DFPS took custody over them and M.K. had developed speech
problems.
Finally, D.K. displayed poor judgment regarding the children by returning
home to the children while under the influence of drugs and by removing the
children from school in November 2012 and failing to register them for another
school before turning over guardianship of the children to Myers at the end of
January 2013.
Plans for the Child and Stability of the Home or Proposed Placement
When considering the best interest of the child, the stability of the proposed
home environment is an important consideration and the fact finder may compare
the proposed plans for the children by the parent and by DFPS and may consider
whether the plans are realistic or weak and ill-defined. See In re J.D., 436 S.W.3d
at 119–20. “Stability and permanence are paramount in the upbringing of the
children.” Id. at 120.
37
Because D.K. was living at Perpetual Help Home, which prohibits children
over the age of 13 from staying at the home, she lacked stable and permanent
housing at the time of trial. Further, the only evidence of plans for the children
D.K. offered at trial was her testimony that she had a support group at the
Perpetual Help Home “that is willing to help [her] find a place outside of there,”
where she could live with her children, “when the time is necessary.”
By contrast, M.D.J.’s father requested that he be declared M.D.J.’s father
and testified that he and his wife intended to adopt M.D.J. And DFPS provided
evidence, through Landry’s testimony, to show that M.D.J. was in a “great home”
with his father, that he was with siblings, and that he would be able to visit R.H.
and M.K. Landry also testified that R.H. and M.K. were with foster parents who
were willing to adopt them and that the foster mom, her church, and the coaches
and teachers at the children’s school had invested significantly in R.H. and M.K.
The foster mom had also paid for special private care to help M.K. with his speech
problems, his social skills, and his emotional issues.
The acts or omissions of the parents and any excuse for such
acts or omissions
As discussed above, D.K. used drugs, lacked stable housing, resided with a
drug dealer and felons, failed to provide support for her children, failed to take her
children to the doctor, removed her children from school, and assigned temporary
guardianship over her children to virtual strangers. D.K. explained the lack of
38
stable housing and the drug usage by pointing to her parents’ deaths in 2011, which
put her in a state of depression. She lived with a drug dealer because he is her
brother and she’s “not really paying attention to all the mistakes he’s made,” and
she is willing to overlook the crimes her family members have committed because
they are her family and she loves them. She failed to take her children to the
doctor because she “was in [her] addiction” to drugs. She removed her children
from school because she moved to another school district, where her job
opportunity did not work out, and she did not re-enroll her children in school
because she mistakenly believed she needed a permanent address to enroll them in
school and she did not have a permanent address. Finally, she assigned temporary
guardianship of her children to Myers because she needed someone to watch her
children while she was incarcerated after she turned herself in for her outstanding
warrants and tickets, and she had known Myers for over one year, Myers had been
R.H.’s teacher and was therefore a schoolteacher, and she believed Myers could
enroll them in school.
Conclusion
In sum, considering all of the evidence in a neutral light, we hold that the
evidence is such that the trial court could have formed a firm conviction or belief
that termination of D.K.’s parental rights was in the children’s best interest. See In
re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (“A
39
parent’s drug use, inability to provide a stable home, and failure to comply with his
family service plan support a finding that termination is in the best interest of the
child.”); see also In re J.D., 436 S.W.3d at 116–21; In re S.N., 272 S.W.3d at 51–
54; Toliver, 217 S.W.3d at 101–02, 103–04. Accordingly, we overrule D.K.’s
seventh issue.
Appointment of Sole Managing Conservators
In her eighth and ninth issues, D.K. challenges the sufficiency of the
evidence to support the trial court’s findings that appointment of DFPS as
managing conservator of R.H. and M.K. was in the best interest of R.H. and M.K.
and that appointment of M.D.J.’s father as managing conservator of M.D.J. was in
the best interest of M.D.J.
Texas Family Code section 153.131 creates a rebuttable presumption that the
appointment of a child’s parents as joint managing conservators is in the child’s
best interest. See TEX. FAM. CODE ANN. § 153.131(b) (West 2014). Section
153.131 further requires the trial court to appoint a parent as the sole managing
conservator or to appoint both parents as joint managing conservators of a child,
unless the court finds that appointment of the parent or parents would not be in the
child’s best interest because the appointment would significantly impair the child’s
physical health or emotional development. See id. 153.131(a). Nevertheless, if a
trial court terminates the parent-child relationship with respect to both parents or to
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the only living parent, the court is required by Family Code section 161.207 to
appoint a suitable, competent adult, DFPS, or a licensed child-placing agency as
managing conservator of the child. TEX. FAM. CODE ANN. § 161.207(a) (West
2014). The trial court’s conservatorship decisions are reviewed under an abuse of
discretion standard, “and they may be reversed only if the decision is arbitrary and
unreasonable.” In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (citing In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re K.R.P.,
80 S.W.3d 669, 674 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)). We
review the trial court’s conservatorship decision under a less stringent standard of
review than the standard for termination. See In re J.A.J., 243 S.W.3d at 616; In re
A.C., 394 S.W.3d at 644.
There is no evidence in the record to show that the appointment of M.D.J.’s
father as managing conservator of M.D.J. would significantly impair M.D.J.’s
physical health or emotional development. Further, the parental rights of both
R.H.’s father and M.K.’s father were revoked, and those revocations have not been
challenged on appeal. Finally, DFPS presented evidence that the foster parents had
provided a stable and healthy environment for R.H. and M.K. See In re A.C., 394
S.W.3d at 644.
Therefore, having already determined that the evidence supports the trial
court’s finding that termination of D.K.’s parental rights was in the children’s best
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interest, we conclude that the evidence is sufficient to support the trial court’s
findings that appointment of M.D.J.’s father as sole managing conservator of
M.D.J. is in M.D.J.’s best interest and that appointment of DFPS as sole managing
conservator of R.H. and M.K. is in the best interest of R.H. and M.K.
Accordingly, we overrule appellant’s eighth and ninth issues.
Conclusion
Based on the foregoing, we affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
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