in the Interest of S.U. and A.H., Children

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00395-CV
___________________________
IN THE INTEREST OF S.U. AND A.H., CHILDREN
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-560860-14
Before Kerr, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is an ultra-accelerated appeal1 in which Appellant K.U. (Mother) appeals
the termination of her parental rights to her children Stephanie and Adam2 and in
which Appellant D.H. (Father) appeals the termination of his parental rights to his
son Adam following a three-day bench trial.3 In a single issue, Mother argues that the
evidence is legally and factually insufficient to support the trial court’s best-interest
finding. Father’s court-appointed attorney filed a motion to withdraw as counsel and
an Anders brief in support of that motion. Because sufficient evidence—including
repeatedly exposing the children to domestic violence for which Mother was
convicted of assault–family violence, uncontrolled mental-health issues, substance
abuse, the failure to complete her service plan, and housing and employment
instability—supports the trial court’s best-interest finding as to Mother and because
Father’s appeal is frivolous, we affirm the trial court’s judgment terminating Mother’s
parental rights to Stephanie and Adam and Father’s parental rights to Adam.
1
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal
from a judgment terminating parental rights, so far as reasonably possible, within 180
days after notice of appeal is filed).
2
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in
an appeal from a judgment terminating parental rights). All children are referred to
using aliases.
3
Stephanie’s father’s parental rights were also terminated, but he did not file a
notice of appeal.
2
II. Factual Background
A. Overview
The record in this case contains almost 1,700 pages and is replete with evidence
of Mother’s mental-health issues and Mother’s and Father’s criminal history,
domestic-violence incidents, drug use, and lack of compliance with their service plans.
However, we refrain from setting forth the details of every mental-health crisis,
conviction, domestic-violence incident, drug-test result, counseling session, and visit
and instead highlight some of the evidence that demonstrates that it was in the
children’s best interest for Mother’s parental rights to be terminated.4
B. Referrals in 2016
The Department of Family and Protective Services (hereinafter the Department
or CPS) received a referral in January 2016 after Stephanie was in a loose car seat
while Mother was driving under the influence and rolled the vehicle. Stephanie, who
had not yet turned four years old, sustained bruises and bumps. Mother was later
convicted for DWI with a child under age fifteen in the car and spent six months in
jail.
In February 2016, Mother took eight to ten Klonopin tablets, drank half a
bottle of wine, and sent a text to a neighbor about “being over the edge” while she
was home alone with Stephanie and Adam. When Father and Paternal Grandmother
Because we need not detail the evidence in Father’s frivolous appeal, we
4
include evidence about Father only when it is relevant to the best-interest ground
challenged by Mother.
3
came home, Mother was trying to leave and attacked Father, grabbing his throat,
trying to choke him, and pushing him into a wall. Father pushed Mother away, and
she began hitting and scratching herself. She then called the police and reported that
Father had caused her injuries, but Stephanie told the police that she had seen Mother
hitting and scratching herself. Mother was taken to the hospital. The CPS
investigator noted that the police had been involved with Mother two times in the
prior year due to her suicidal ideations. Mother was ultimately convicted of assault–
family violence and was sentenced to 163 days in jail. The referral was disposed of as
“Reason to Believe for the Neglectful Supervision of [Stephanie] and [Adam]” by
Mother. 5
C. Referrals in 2017
The Department received a referral in June 2017, alleging neglectful supervision
and physical abuse of Stephanie and Adam by Mother, after the police responded to
the home for a domestic dispute. The police report stated that Mother had strangled
Father; had thrown a picture frame at Father; had thrown a phone at a picture,
causing the glass in the frame to shatter; and had thrown a “kiddy” table across the
room. Stephanie and Adam were present during the incident. When the CPS
investigator interviewed Stephanie, she said that she and Adam had been in the room
when Mother was angry and that she had seen Mother break a picture by throwing
The record demonstrates that a Family-Based Safety Services (FBSS) case was
5
opened based on the 2016 referrals, but the record does not disclose the details of
that FBSS case.
4
her phone. Mother explained that the fight was due to Father’s abuse of Xanax, but
she also reported that she had been diagnosed with several mental-health issues and
was not taking any medication. Mother was arrested and charged with assault–family
violence for impeding Father’s breath or circulation and was placed on deferred-
adjudication community supervision for five years.
In August 2017, CPS received a referral alleging neglectful supervision of
Stephanie because Mother and her paramour had gotten into a fight over her use of
pills and alcohol. The referral also stated that Mother had broken into a neighbor’s
home and that there was concern that Mother had taught her children how to climb
through the neighbor’s window and steal from the home. The referral was disposed
of as “Reason to Believe – Neglectful Supervision of [Stephanie] and [Adam] by
[Mother].”
D. FBSS Case Opened
After receiving the above referrals during 2017, the Department opened an
FBSS case and gave Father and Mother service plans. Father and Mother, however,
failed to complete anything on their FBSS service plans from August 2017 to
February 2018. Father and Mother failed to take more than three requested drug
tests, and each refused drug test was counted as a positive test.
Due to Father and Mother’s refusal to work their FBSS service plans to
alleviate the Department’s concerns about the children’s safety in the home, the FBSS
supervisor recommended that the children be removed from the home. She
5
explained that it was not safe for the children to remain in the home because of the
parents’ criminal history, concerns of family violence, and continued drug use as
reflected by their repeated failures to take requested drug tests.
E. CPS Case Opened
In February 2018, CPS removed Stephanie and Adam from the home6 and
placed them in foster care due to concerns that Father and Mother had engaged in
domestic violence in front of the children, that both parents were abusing substances,
and that Mother had untreated or improperly medicated mental-health issues.
1. Mother’s Service Plan Compliance
As part of the CPS case, Mother received a service plan that required her to
undergo a psychological evaluation and a drug and alcohol assessment; to attend
individual counseling and parenting classes; to submit to drug testing; to attend
visitation; and to maintain consistent contact with her CPS worker, safe and stable
housing, and stable employment. Mother’s drug and alcohol assessment
recommended that she take classes through Community Addiction Treatment
Services (CATS). Mother failed to complete her services because she was never
successfully discharged from counseling and did not successfully complete CATS.
The following paragraphs set forth Mother’s compliance with random drug testing,
6
Father was in jail for possession when the children were removed and was
released in October or November 2018.
6
detail her parenting ability, summarize what occurred during several of the visits, and
show Mother’s employment and housing history.
a. Drug Testing
Mother was “sporadically compliant with random drug testing.” During the
first year of the CPS case (from February 2018 to February 2019), Mother failed to
comply with at least five requests for random drug testing—all of which were
presumed positive.
Mother’s drug test in February 2019 came back as diluted; Mother told the
Court-Appointed Special Advocate (CASA) volunteer that she knew how to dilute
drug tests and that Father had purchased urine to use in a test.
Mother tested positive for marijuana on a March 1, 2019 urinalysis. Mother
said that she had taken a “hit” from a friend’s vape pen and believed that it had
marijuana in it but did not know for sure.
Mother tested positive for barbiturates on a urinalysis in July 2019. Mother
gave CPS documentation showing that she had a prescription for clonazepam that
was filled in June 2019.
The latter conservatorship worker7 testified that the longest period of time that
Mother had produced only clean drug tests was four months.
7
Throughout the opinion, we use the designations “initial conservatorship
worker” and “latter conservatorship worker” in lieu of their names. The initial
conservatorship worker handled the case from February 2018 to February 2019. The
latter conservatorship worker handled the case from February 2019 through the time
7
b. Parenting
Mother initially testified that she had never put her children in danger. She
later acknowledged that she had been violent towards Father, that he had been violent
towards her, and that he had drug issues and a long criminal history related to drugs.
She agreed that it was not safe for the children to be in an environment where there
was family violence or to be around someone who was constantly using drugs and
going to jail. Mother also admitted that it was traumatic for the children to be in the
same house where they could hear incidents involving domestic violence.
Mother believed that she could 100 percent protect the children now that she
was “much more heightened and aware.” Mother said that she had promised herself
that she would never put her children through what she went through as a child but
that she had failed. Mother testified that she never wanted to hurt her children again.
When asked what was going to stop this from happening again, Mother responded,
“Experience.” Mother opined that the trial court could rely on her experience.
c. Visits
Mother interacted well with the children during her visits and required very
little redirection. She always brought something for the children to eat, as well as
games or books; engaged with the children; and helped them complete their
homework during the school year.
of the termination trial, which was held on August 8, 2019; September 26, 2019; and
October 1, 2019.
8
There were three visits when the person contracted to observe the visits saw
concerning behavior from Mother. At one visit, Mother slurred her words, had glassy
eyes, and was shaking; Mother said that she had suffered an anxiety attack before the
visit, had taken medication, and would feel better after she ate. At another visit,
Mother took Stephanie to the bathroom and let her FaceTime with Father even
though the trial court had ceased allowing visits and contact between Father and
Stephanie at that point. At a visit near the time of the termination trial, Mother took
no action to protect the children when Father showed up at Taco Cabana while she
was visiting with the children, “got out of the car[,] and motioned the children to
come to him” while yelling, “I don’t give a F what you guys say, I didn’t get to see my
kids on Father’s Day; I didn’t get any F’ing gifts, and I’m going to see my kids.”
The visit observer and the latter conservatorship worker said that the children
get excited when they see Mother and that they are very bonded with her. But the
visit observer also noted that the children are happy to see their foster parents when
they come to pick them up.
d. Employment
Mother did not have six months of consistent employment. At the time of the
termination trial, Mother testified that she had been working at a restaurant for
approximately two months.
9
e. Housing
During the year and a half that the CPS case was pending, Mother had not
established stability in housing. Rather, Mother “moved quite a bit”; she lived with
various relatives, at Union Gospel Mission, and with Father before moving to the
Salvation Army in July 2019 to be in the START Program.8
2. Continued Domestic Violence
While Mother was working her CPS service plan, she and Father continued to
engage in domestic-violence incidents. In March 2019, Mother found drugs in the gas
cap area of Father’s vehicle, and either Mother or Paternal Grandmother flushed the
drugs down the toilet. After Mother found the drugs, Father and Mother went to a
visit with the children and then returned home, where they yelled at each other and
Father pushed Mother and Paternal Grandmother. Father then locked himself in the
bedroom with their baby Heather.9 Mother called the visit observer, who came to the
apartment and found Mother who was “red in several spaces.” The visit observer
told Father to open the door and give her Heather. Father said that Heather was fine
but that he had a gun in his closet and would kill himself. After the visit observer
threatened to kick the door down, Father opened the door, and the visit observer
8
The START Program is a six-month program that requires participants to
obtain employment and to save their money to be able to rent an apartment and
become self-sufficient. The Salvation Army also offers a Family START Program,
which is a year-long program for those with children.
9
A third child, whom we refer to as Heather, was born in December 2018.
10
retrieved Heather from the bassinet. Later that month, Heather was placed outside
the home. 10
In July 2019, after Mother had moved to the Salvation Army, she went back to
Father’s apartment to retrieve her belongings. Father and Mother began arguing, and
Father grabbed her arm and tried to break her phone. Police responded to the family
disturbance but did not arrest either parent because they could not verify that
anything more than a verbal altercation had occurred.
3. Mother’s Mental-Health Struggles
Mother’s mental-health issues continued during the CPS case. The record
demonstrates that Mother had been diagnosed with bipolar disorder, panic disorder,
posttraumatic stress disorder (PTSD), anxiolytic use disorder, cannabis use disorder,
and borderline personality disorder.11 Mother admitted that she had self-harmed by
cutting her legs with a razor during the children’s lifetime and that she had cut her
wrists at sixteen. Father and Paternal Grandmother told CPS that in January 2018,
Mother had tried to kill herself with a pair of scissors. Mother explained that she had
been hospitalized “a lot” and that she had often turned herself in to get help. Mother
10
Heather was added to this termination suit in March 2019, but her case was
later severed into a separate suit that was not tried with this case.
11
Mother’s testimony about her mental-health diagnoses differed from that
found in the clerk’s record. She testified that she had major depressive disorder,
severe anxiety disorder, PTSD, insomnia, and borderline personality disorder; she
denied having told anyone that she had bipolar disorder.
11
said that the most recent time that she had turned herself in for help was following a
hearing in this case in June 2019.
After the hearing, Mother reached out to her conservatorship worker and asked
her to take her to the hospital due to her mental health. Mother said that she and
Father had engaged in a physical domestic altercation, that she had never seen him
like that before, that he was withholding her medication and had taken her phone, and
that she had no place to go. Mother’s conservatorship worker took her to the
hospital.
Mother then spent ten days in Trinity Springs and twenty-five days in the
MHMR Crisis Residential Unit (CRU) before going to live at the Salvation Army.
Mother explained that she had entered those programs because she was “feeling down
and off” and wanted to go to the hospital so that doctors could “monitor [her] on
new or adjusted medication.” Mother testified that at the time of the termination trial,
she was taking one medication for depression, two medications for anxiety, and one
medication for sleep.
4. Mother and Father’s Relationship
Throughout Mother and Father’s interactions with the Department, they had a
pattern of saying that they needed to end their relationship. At trial, Mother testified
that she was no longer in a relationship with Father and that they had ended their
relationship on June 4, 2019. Mother explained that she did not leave Father until
June 2019—three months after the incident when Father assaulted Mother after she
12
had found drugs in his vehicle’s gas cap compartment—because she was raised by two
addicts in an abusive environment and that abuse was how she accepted love. Mother
testified that she had ended her relationship with Father because she was done and
“couldn’t deal with it anymore.” When asked how she knew that she would not go
back to Father, Mother said that she could not put her children through that because
she had “seen from testimonies about how it ha[d] affected” them. Mother admitted
that she had known that previously but had not been able to make the change.
Mother testified that she had seen Father twice between June 2019 and
September 26, 2019: once when she went to his apartment to retrieve her belongings
and another time when they went on a road trip to his grandmother’s funeral in
Utah.12 Mother claimed that she planned to file for divorce; she explained that she
had filled out divorce paperwork but had not filed it because she did not know
whether to file with or without children due to the children’s being in CPS’s care.
The CASA volunteer opined that Mother and Father were still engaged in a
relationship at the time of the termination trial because Father had visited Mother
while she was in Trinity Springs and at CRU and because they had indicated to her
that they saw and communicated with each other regularly. The CASA volunteer said
that Father wanted the relationship to work out but that Mother did not. It worried
12
Mother did not tell her conservatorship worker that she went to Utah with
Father; instead, Mother told her that she was sick and had to cancel her visit. Mother
went on the trip with Father despite having informed her conservatorship worker just
a few months prior that she believed that Father was using drugs.
13
the CASA volunteer that Father and Mother were still engaged in a relationship with
each other because she did not think it was a safe environment for the parents or for
the children due to the arguments and physical fights that they had a tendency to
engage in.
5. The Children’s Condition
The latter conservatorship worker testified that Stephanie and Adam need love,
stability, and consistency; that they need to have their basic needs met; and that they
need to feel that they are safe. The initial conservatorship worker testified that when
the children came into the Department’s care, they exhibited “a lot of separation
anxiety” and that Adam was underweight and had ten or eleven cavities. After
Adam’s cavities were filled, he made progress with gaining weight because he was able
to eat more types of food and in higher quantities.
The children’s therapist testified that initially, both children were “very closed”
and would not express emotions. Based on their “initial closure,” the children’s
therapist believed that Stephanie and Adam had experienced trauma. It took many
months of the therapist meeting with Stephanie to gain her trust so that she would
discuss what she had witnessed. Stephanie disclosed that Mother had harmed Father,
that there was yelling in the home, and that she was fearful in Mother and Father’s
home. Over time, Stephanie had changed to “being very open, very free in play, able
to self-identify her emotions, [and] able to implement coping strategies and things
like[] that.” The children’s therapist said that the children had blossomed since she
14
had started seeing them, that the children were stable, and that they had expressed
happiness.
The CASA volunteer and the latter conservatorship worker testified that the
children were flourishing at the time of the termination trial. Adam was in pre-K at a
Montessori school, was intellectually on target, and was “doing very well.” Adam was
above level developmentally but might need speech therapy. Adam was receiving
individual therapy once a week in the home for an hour and fifteen minutes.
Stephanie was “doing amazing in school,” was “very brilliant,” and was above level
developmentally. Stephanie was receiving individual therapy and behavioral therapy.
Although Stephanie had initially referred to her foster parents as Mama S. and
Daddy D., approximately six months before trial, she had started referring to her
foster parents as Mom and Dad and referred to Mother as Mama K. In January 2019,
Stephanie told her therapist that she wanted everybody—her foster parents and
Mother—to live with her. But since then, Stephanie had focused more on her foster
parents. The visit observer heard the children say, “[They] want[ed] to be with [their]
foster parents, but [they would] never see [Mother] again, but [they were] happy over
here [with their foster parents].” The children’s therapist opined that Stephanie’s
desire to live with her foster parents was a reaction to her feeling more stable.
6. The Foster Parents
The initial conservatorship worker testified that the foster parents “are
incredibly involved” in the children’s lives, as shown by their commitment to the
15
children’s medical care and to making sure the children are involved in extracurricular
activities. The initial conservatorship worker explained that the foster parents are very
aware of the children’s likes and dislikes and are concerned about the way the children
are feeling. Both conservatorship workers opined that the foster home that the
children were in would provide a safe and stable placement for them and that the
foster parents were able to meet the children’s physical, emotional, and financial needs
now and in the future.
7. The Future Plans for the Children
Mother, the conservatorship workers, and Foster Mom testified regarding their
plans for the children. If the children were returned to Mother, Mother said that all
of the services at the Salvation Army were available to her to assist her with caring for
her children. Her plan was to move from the Salvation Army’s START Program to
the family program, to graduate from that program, and to get her own housing.
Mother’s immediate plan was to stay at her current job and work full-time; her long-
term plan was to go back to school. Mother did not say what her backup plan would
be if the children were returned to her and she had to go to the hospital for her
mental-health issues.
The conservatorship workers testified that the Department’s plan was for the
children to be adopted by their foster parents.
Foster Mom testified that her desire for Stephanie’s and Adam’s futures was
for them to be in a stable, loving home. If the trial court terminated Mother’s and
16
Father’s parental rights, Foster Mom requested that CPS be named managing
conservator to facilitate a potential adoption.
8. Recommendations
Mother, the conservatorship workers, and the children’s ad litem made
recommendations to the trial court regarding whether to terminate Mother’s parental
rights.
Mother asked the trial court to return her children. Mother testified that she
had seen the children for four hours each week during all of 2019 and opined that the
children would be adversely affected if they were no longer able to see her. Mother
testified that through the CPS case, she had become more aware of her issues, that
she knew her triggers, and that she knew how to handle them. She said that she had
left the abusive situation that she was in with Father, that she had obtained a job, that
she was in a program at the Salvation Army, and that she was attending Narcotics
Anonymous (NA) three times a week.
The initial conservatorship worker opined that the children should not be
returned to their parents because the parents had continued to engage in the same
pattern of behavior with their drug use and to engage in a relationship with someone
who had committed domestic violence against them. The initial conservatorship
worker asked the trial court to terminate the parents’ parental rights to Stephanie and
to Adam and opined that termination would be in the children’s best interest because
it is important for children “to have a safe and stable environment . . . where there
17
aren’t concerns of past drug use with the parents[] [and] that there aren’t concerns for
domestic violence with the parents.”
The latter conservatorship worker testified that the Department was asking the
trial court to terminate Mother’s and Father’s parental rights to the children and
opined that termination would be in the children’s best interest. The latter
conservatorship worker said that Father and Mother were not able to meet the
children’s needs. The latter conservatorship worker testified that the children should
not be returned to Mother because there had been a continual behavior pattern of her
saying that she wanted to make changes but had not done so. The latter
conservatorship worker explained that Mother had continued to engage in a
relationship with Father even though she had reported that she knew he was using
drugs, she had continued to engage in domestic violence with Father while Heather
was in her care, she had not completed her services, she had not provided proof of
consistent employment or housing, and she had continued to test positive for drugs.
The children’s ad litem stated that Mother had put in a lot of effort and had a
bond with the children. But the children’s ad litem was concerned about Mother’s
“relationship with [Father]. We have had indications we were going to stop it. It
always comes back. I have no confidence that it won’t come back again. I think these
children are going to remain at risk into the future because that relationship can’t and
has not ever been demonstrated to be over with.” The children’s ad litem opined that
it was not in the children’s best interest for Mother to maintain her parental rights.
18
F. Outcome
After hearing the evidence during the three-day bench trial, the trial court
found by clear and convincing evidence that Mother had knowingly placed or had
knowingly allowed the children to remain in conditions or surroundings that had
endangered the children’s physical or emotional well-being, had engaged in conduct or
had knowingly placed the children with persons who had engaged in conduct that had
endangered the children’s physical or emotional well-being, and had failed to comply
with the provisions of a court order that specifically established the actions necessary
for her to obtain the return of her children, and that it was in the children’s best
interest for Mother’s parental rights to be terminated. The trial court also found by
clear and convincing evidence that Father had knowingly placed or had knowingly
allowed Adam to remain in conditions or surroundings that had endangered his
physical or emotional well-being, had engaged in conduct or had knowingly placed
Adam with persons who had engaged in conduct that had endangered his physical or
emotional well-being, had constructively abandoned Adam, and had failed to comply
with the provisions of a court order that specifically established the actions necessary
for him to obtain the return of Adam, and that it was in Adam’s best interest for
Father’s parental rights to be terminated. Mother and Father then perfected these
appeals.
19
III. Burden of Proof and Standard of Review
For a trial court to terminate a parent–child relationship, the Department must
prove two elements by clear and convincing evidence: (1) that the parent’s actions
satisfy one ground listed in Family Code Section 161.001(b)(1); and (2) that
termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re
E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
Evidence is clear and convincing if it “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; E.N.C., 384 S.W.3d at 802.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged finding
to determine whether a reasonable factfinder could form a firm belief or conviction
that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that
the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable
factfinder could have done so. Id. We disregard all evidence that a reasonable
factfinder could have disbelieved, and we consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to the finding if a
reasonable factfinder could, and we disregard contrary evidence unless a reasonable
factfinder could not. See id. The factfinder is the sole judge of the witnesses’
credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
20
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s finding and do not supplant it with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide
whether a factfinder could reasonably form a firm conviction or belief that the
termination of the parent–child relationship would be in the children’s best interest.
Tex. Fam. Code Ann. § 161.001(b)(2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the
factfinder reasonably could form such a firm conviction or belief, then the evidence is
factually sufficient. C.H., 89 S.W.3d at 18–19.
IV. Mother’s Appeal
In her sole issue, Mother argues that the evidence is legally and factually
insufficient to prove that termination of her parental rights was in the children’s best
interest.
A. Best-Interest Factors
Although we generally presume that keeping a child with a parent is in the
child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest
analysis is child-centered, focusing on the child’s well-being, safety, and development,
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In determining whether evidence is
sufficient to support a best-interest finding, we review the entire record. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). Evidence probative of a child’s best interest may be
21
the same evidence that is probative of a Subsection (b)(1) ground. Id. at 249; C.H., 89
S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the
evidence in light of nonexclusive factors that the factfinder may apply in determining
the child’s best interest:
(A) the [child’s] desires . . . ;
(B) the [child’s] emotional and physical needs[,] . . . now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the
[child’s] best interest . . . ;
(F) the plans for the child by these individuals or[, if applicable,] by
the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the [parent’s] acts or omissions . . . indicat[ing] that the existing
parent–child relationship is not a proper one; and
(I) any excuse for the [parent’s] acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see E.C.R.,
402 S.W.3d at 249; E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and
some listed factors may not apply to some cases. C.H., 89 S.W.3d at 27. Indeed,
undisputed evidence of just one factor may be sufficient to support a finding that
termination is in the child’s best interest. Id. On the other hand, the presence of
scant evidence relevant to each factor will not support such a finding. Id.
22
B. Analysis
With regard to the children’s desires, Stephanie and Adam did not testify at
trial. The record contains evidence that the children were bonded to Mother and to
their foster parents. Although Stephanie had expressed concern over never seeing
Mother again, she had started calling her foster parents Mom and Dad and had said
that she was happy living with them. The trial court was entitled to find that this
factor weighed slightly in favor of terminating Mother’s parental rights to Stephanie
and Adam.
With regard to the children’s emotional and physical needs now and in the
future, the record reflects that the children’s basic needs include food, shelter, and
clothing; routine medical and dental care; safe, stimulating, and nurturing home
environments; and friendships and recreational activities appropriate to their ages.
Although Mother had moved out of Father’s apartment in June and had obtained safe
and appropriate housing at the Salvation Army in July, her ability to consistently
provide for Stephanie’s and Adam’s emotional and physical needs now and in the
future remained in doubt due to her having obtained employment and safe housing
only the month before the termination trial began. The trial court was entitled to find
that this factor weighed in favor of terminating Mother’s parental rights to Stephanie
and Adam.
With regard to the emotional and physical danger to the children now and in
the future, the record demonstrates that Mother’s domestic-violence incidents with
23
Father had traumatized Stephanie and Adam and had made them fearful to be in the
home with Mother and Father. Mother’s failure to abstain from using drugs during
the case and her failure to complete her services to address her drug use posed a
danger to the children, as did her numerous hospitalizations to deal with her mental-
health issues. The trial court was entitled to find that this factor weighed in favor of
terminating Mother’s parental rights to Stephanie and Adam.
With regard to Mother’s parenting abilities, the evidence showed that she
needed little redirection during the visits but that she was unavailable to parent her
children during her numerous mental-health hospitalizations and while she was in jail
for assaulting Father. Mother had made numerous poor parenting choices when she
engaged in domestic violence in front of the children, drove while under the influence
while Stephanie was in the vehicle, and used drugs before and during the CPS case.
The trial court was entitled to find that this factor weighed in favor of terminating
Mother’s parental rights to Stephanie and Adam.
With regard to the programs available to assist Mother to promote the
children’s best interest, the record demonstrates that Mother worked most of the
services on her service plan but did not fully address the underlying issues that
triggered the removal because she had failed to be successfully discharged from
counseling and CATS. Mother had, however, enrolled in the Salvation Army’s
START Program the month before trial, was attending NA, and planned to utilize the
services at the Salvation Army to assist her with caring for her children if the trial
24
court returned them to her. The trial court was entitled to find that this factor
weighed neither for nor against terminating Mother’s parental rights to Stephanie and
Adam.
With regard to the plans for the children and the stability of the proposed
placement, Mother requested that the trial court return her children to her and that
she would immediately transfer to the Family START Program at the Salvation Army,
utilize the programs there to assist her with raising her children, and continue working
her job at the restaurant until she could go back to school. But Mother had failed to
have clean, undiluted drug-test results for longer than four months during the case,
had obtained employment and safe housing only the month prior to the start of the
trial, and had not expressed a plan for how she would care for the children if she were
hospitalized in the future for mental-health issues. The Department planned for the
children to be adopted by their foster parents, who had cared for them since they
were removed from Mother in February 2018 and who had shown the ability to
provide a safe and stable placement for them. The trial court was entitled to find that
the plans-for-the-children factor weighed neither for nor against termination and that
the stability factor weighed in favor of terminating Mother’s parental rights to
Stephanie and Adam.
With regard to Mother’s acts or omissions that may indicate that the existing
parent–child relationship is not a proper one, the analysis set forth above—which
details Mother’s willingness to expose the children to domestic violence, her
25
continued contact with Father despite their volatile interactions and her knowledge
that he was using drugs, her failure to maintain consistent employment and safe
housing, her numerous hospitalizations for her mental-health issues, her positive drug
tests during the case, as well as her failure to take advantage of the services that she
was offered—reveals that the existing parent–child relationship between Mother and
the children is not a proper parent–child relationship. The trial court was entitled to
find that this factor weighed in favor of terminating Mother’s parental rights to
Stephanie and Adam.
With regard to any excuse for Mother’s acts, she blamed Father for the
domestic violence incidents in 2017 that led to the children’s removal; she did not
accept any responsibility for her violent behavior. The trial court was entitled to find
that this factor weighed in favor of terminating Mother’s parental rights to Stephanie
and Adam.
After reviewing all the evidence, applying the appropriate standards of review,
and deferring to the factfinder’s credibility determinations, we hold that the trial court
could have reasonably formed a firm conviction or belief that termination of the
parent–child relationship between Mother and the children was in the children’s best
interest. We therefore hold that the evidence is legally and factually sufficient to
support the trial court’s best-interest finding. See Tex. Fam. Code Ann.
§ 161.001(b)(2); Jordan v. Dossey, 325 S.W.3d 700, 733 (Tex. App.—Houston [1st Dist.]
2010, pet. denied) (holding evidence legally and factually sufficient to support the trial
26
court’s best-interest finding when most of the best-interest factors weighed in favor of
termination); In re D.R.T., No. 02-11-00213-CV, 2012 WL 1868535, at *1–14, *18
(Tex. App.—Fort Worth May 24, 2012, no pet.) (mem. op.) (holding evidence
sufficient to support best-interest finding when record reflected that the mother not
only failed to recognize how she had endangered her children through the domestic
violence in her relationship with her paramour but also failed to complete her CPS
service plan and failed to find stable housing and employment in contrast to other
evidence showing that the children had stable, healthy homes away from her and that
their caregivers had appropriate and protective plans for the children); In re Z.C., 280
S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (per curiam) (noting that
“[s]tability and permanence are paramount in the upbringing of a child” and affirming
a finding that termination was in a child’s best interest when the child showed
improvement in foster care); In re M.R., 243 S.W.3d 807, 820–21 (Tex. App.—Fort
Worth 2007, no pet.) (holding evidence factually sufficient to support best-interest
finding because parents exposed children to domestic violence and drug abuse,
mother had failed to obtain housing and employment, and children flourished in
foster care).
We overrule Mother’s sole issue.
V. Father’s Appeal
Father’s court-appointed appellate attorney filed a motion to withdraw as
counsel and a brief in support of that motion, averring that after diligently reviewing
27
the record, she believes that the appeal is frivolous. See Anders v. California, 386 U.S.
738, 744–45, 87 S. Ct. 1396, 1400 (1967); see also In re K.M., 98 S.W.3d 774, 776–77
(Tex. App.—Fort Worth 2003, no pet.) (reasoning that Anders procedures apply in
noncriminal appeals when appointment of counsel is mandated by statute). The brief
meets the requirements of Anders by presenting a professional evaluation of the
record and demonstrating why there are no arguable grounds to be advanced on
appeal. Although given the opportunity, Father did not file a response. The
Department filed a letter stating that it would not be submitting a response to the
Anders brief.
As the reviewing appellate court, we must independently examine the record to
decide whether an attorney is correct in determining that the appeal is frivolous. See
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); In re K.R.C., 346 S.W.3d
618, 619 (Tex. App.—El Paso 2009, no pet.).
Having carefully reviewed the record and the Anders brief, we agree that
Father’s appeal is frivolous. We find nothing in the record that might arguably
support Father’s appeal. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App.
2005). But we deny the motion to withdraw because it does not show “good cause”
separate and apart from its accurate determination that there are no arguable grounds
28
for appeal. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (order); In re C.J., 501 S.W.3d
254, 255 (Tex. App.—Fort Worth 2016, pets. denied). 13
VI. Conclusion
Having overruled Mother’s sole issue, having held that nothing in the record
might arguably support Father’s appeal, and having denied Father’s court-appointed
attorney’s motion to withdraw, we affirm the trial court’s judgment terminating
Mother’s parental rights to Stephanie and Adam and Father’s parental rights to Adam.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: April 23, 2020
13
“[A]ppointed counsel’s obligations can be satisfied by filing a petition for
review that satisfies the standards for an Anders brief.” P.M., 520 S.W.3d at 27–28.
29