in the Interest of J.J.W., C.T.Y., C.E.Y., C.W.Y., and A.J.K., Children

Affirmed and Memorandum Opinion filed April 25, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00985-CV
IN THE INTEREST OF J.J.W., C.T.Y., C.E.Y., C.W.Y., AND A.J.K.,
CHILDREN
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2017-04136J
MEMORANDUM OPINION
The issues in this case involve whether the trial court’s findings to terminate
a mother’s parental rights are supported by legally- and factually-sufficient
evidence. This accelerated appeal arises from a final order in which, after a bench
trial, the trial court terminated the parental rights of S.A.K. (Mother) with respect to
her children, J.J.W. (John), C.T.Y. (Chip), C.W.Y. (Colin), C.E.Y. (Carlos) and
A.J.K. (Ana),1 and appointed the Department of Family and Protective Services to
1
To protect the minors’ identities, we have not used the actual names of the children,
parents, or other family members. See Tex. R. App. P. 9.8.
be the children’s sole managing conservator. See Tex. Fam. Code Ann. § 109.002(a-
1).2
In three issues, Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings on the predicate grounds of
endangerment, and that termination is in the children’s best interest. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E), (2). We affirm.
I. BACKGROUND
A. Pretrial Proceedings
1. Pretrial Removal Affidavit
In March 2017, the Department received a referral alleging neglectful
supervision of John, Chip, Colin, and Carlos by Mother. The report stated that
Mother left the children with their maternal grandmother two days earlier. When
Mother returned she appeared to have been using either methamphetamine or
cocaine. It was reported that Mother commonly left for a period of time and returned
“all drugged up.” Mother rarely bathed the children, which caused some of them to
develop boils. About 10 days earlier, Colin had an ear infection that caused his ear
to swell and bleed. When someone suggested Mother take Colin to the doctor, she
rebuffed the individual with an expletive. Carlos was hospitalized for a staph
infection, which allegedly was caused by a mosquito bite that was infected most
likely with his own feces due to Mother’s failure to regularly change his diaper.
Four months later, the Department received a second referral alleging
neglectful supervision of Ana by Mother. The reported stated that Mother tested
positive for cocaine the day before when Ana was born. Mother admitted to some
2
The children’s fathers’ parental rights were also terminated. The fathers have not appealed
the termination of their parental rights.
2
alcohol and cocaine use approximately one month before Ana’s birth.
2. The Investigation
Two days after the initial referral, the Department caseworker met with
Mother at the Walker County Jail. Mother was arrested due to outstanding warrants
on speeding tickets and taken to jail. Mother admitted cocaine use eight years earlier
but denied recent use. Mother agreed to work with Family Based Safety Services
(FBSS) and take a drug test after she was released from jail. Two weeks later Mother
refused to provide a specimen for a drug test.
Mother reported that she and her children lived with the paternal grandmother.
When a Department caseworker went to the address given by Mother the caseworker
learned that the paternal grandmother (Grandmother) lived in the apartment, but
Mother and the children did not live there. The apartment was part of a senior
community and there were no children living there. The investigator looked for
Mother and the children at the Star of Hope mission but was unable to locate them.
Approximately one month later, a month before Ana was born, Mother called
her sister, told her sister she was in active labor, and asked her sister to go to the Star
of Hope mission and pick up the older children and bring them to Mother. When
Mother’s sister met Mother, she noted that Mother was pregnant but did not appear
to be in labor. Mother was homeless and reported that she had not made enough
money begging that day to get a motel room for the children and her. Mother gave
the four older children to her sister, who reported that the children smelled of urine
and feces.
Mother’s sister later reported that the children were living with Grandmother,
but Grandmother told the caseworker she had no locating information for Mother or
John’s father. Grandmother reported that her son is the father of Chip, Colin, and
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Carlos. He was unable to care for the children, according to Grandmother, because
he was “unstable and on drugs.”
Mother has another child, C.K. (Chris), who has lived with Cynthia Dixon
since he was one year old. Mother’s parental rights to Chris are not at issue in this
case. Dixon reported that five years earlier Mother was arrested for prostitution and
possession while John was with her at a motel.
3. Department History
One year earlier, the Department received a referral for physical abuse of the
children by C.Y., the biological father of Chip, Colin, Carlos, and Ana. John had
multiple minor injuries to vital body areas caused intentionally by C.Y. (Father).3
Three days later John had older brown visible marks to his upper left and right thigh
area. The marks appeared to be strap marks approximately four inches long. John
had another mark on his left leg that appeared to be a hand print. John reported that
the injuries were caused by Father when Father became angry because John would
not pick up his toys. Disposition of this referral was listed as “unable to determine.”
4. Criminal History
Mother’s criminal history dated back to 2002 and is listed on the removal
affidavit as follows:
Offense Date Disposition
Robbery 05/20/2002 Held
Possession of Controlled 06/12/2002 9-months confinement
Substance (685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
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Although parental rights are of constitutional magnitude, they are not absolute. In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for courts to recognize
the constitutional underpinnings of the parent-child relationship, it is also essential
that emotional and physical interests of the child not be sacrificed merely to preserve
that right.”).
Due to the severity and permanency of terminating the parental relationship,
the law in Texas requires clear and convincing evidence to support such an order.
See Tex. Fam. Code Ann. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 265–66 (Tex.
2002). “Clear and convincing evidence” means “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007; In re
J.F.C., 96 S.W.3d at 264.
The heightened burden of proof in termination cases results in a heightened
standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) (op. on reh’g). We review the legal sufficiency of the evidence
by considering all evidence in the light most favorable to the finding to determine
whether a reasonable factfinder could have formed a firm belief or conviction that
its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We must assume
that the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so, and we disregard all evidence that a reasonable factfinder
could have disbelieved or found incredible. Id.; In re D.R.A., 374 S.W.3d at 531.
However, this does not compel us to disregard all evidence that does not support the
finding. In re D.R.A., 374 S.W.3d at 531. Because of the heightened standard, we
also must be mindful of any undisputed evidence contrary to the finding and consider
that evidence in our analysis. Id.
In reviewing the factual sufficiency of the evidence under the
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clear-and-convincing burden, we consider and weigh all of the evidence, including
disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345. “If, in light of the
entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not reasonably
have formed a firm belief or conviction, then the evidence is factually insufficient.”
Id. (internal quotation marks omitted). We give due deference to the factfinder’s
findings and we cannot substitute our own judgment for that of the factfinder. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam).
In a proceeding to terminate the parent-child relationship brought under
Family Code section 161.001, the petitioner must establish, by clear and convincing
evidence, one or more acts or omissions enumerated under subsection 1 of section
161.001(b) and that termination is in the best interest of the child under subsection
2. Tex. Fam. Code § 161.001(b); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
B. Predicate termination grounds
The trial court made predicate termination findings that Mother had
committed acts establishing the grounds set out in Family Code section
161.001(b)(1)(D) and (E), which provide for termination of parental rights if the
factfinder finds by clear and convincing evidence that the parent has:
(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child;
. . . [or]
(E) engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional
well-being of the child[.]
Tex. Fam. Code Ann. § 161.001(b)(1)(D) and (E).
Only one predicate finding under section 161.001(b)(1) is necessary to
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support a judgment of termination when the factfinder also finds that termination is
in the children’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We
will address the trial court’s finding of endangerment under subsection E.
“To endanger” means to expose a child to loss or injury or to jeopardize a
child’s emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex.
1996) (per curiam); In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied). A finding of endangerment under subsection E requires
evidence that the endangerment was the result of the parent’s conduct, including
acts, omissions, or failures to act. In re S.R., 452 S.W.3d at 360. Termination under
subsection E must be based on more than a single act or omission; the statute requires
a voluntary, deliberate, and conscious course of conduct by the parent. Id. A trial
court properly may consider actions and inactions occurring both before and after a
child’s birth and before and after removal to establish a course of conduct. Id. at
360–61. “While endangerment often involves physical endangerment, the statute
does not require that conduct be directed at a child or that the child actually suffers
injury; rather, the specific danger to the child’s well-being may be inferred from
parents’ misconduct alone.” Id. at 360 (citing Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987)). A parent’s conduct that subjects a child to a life
of uncertainty and instability endangers the child’s physical and emotional well-
being. Id.
Drug abuse and its effect on the ability to parent can present an endangering
course of conduct. In re J.O.A., 283 S.W.3d at 345; see In re S.R., 452 S.W.3d at
361. Drug use can endanger a child “when the environment creates a potential for
danger that the parent is aware of but disregards.” In re E.R.W., 528 S.W.3d 251,
264 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
In arguing that the trial court’s finding of endangerment is not supported by
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clear and convincing evidence Mother acknowledges that she tested positive for
cocaine at Ana’s birth and tested positive for cocaine, benzoylecgonine, and Norco
after her children came into care. Mother points out that she tested negative on all
drug tests for the next eleven months.
The trial court is not required to ignore a long history of dependency and
abusive behavior merely because the behavior abates as trial approaches. In re A.F.,
No. 14-17-00394-CV, 2017 WL 4697836, at *9–10 (Tex. App.—Houston [14th
Dist.] Oct. 19, 2017, no pet.) (mem. op.); see also In re J.F.C., 96 S.W.3d at 272
(holding parents’ extensive history of substance abuse and violence was not rendered
legally insufficient by improvements that appeared to render their home safe and
loving five months before final hearing); In re M.G.D., 108 S.W.3d 508, 513–14
(Tex. App.—Houston [14th Dist.] 2003, pet. denied). Mother’s attacks on the
endangerment findings are largely, if not solely, based on the proposition that she
has remained sober while her children have been in the care of others.
To be sure, Mother’s successful completion of her family service plan and her
recent sobriety are entitled to significant weight. See In re C.V., 531 S.W.3d 301,
305 (Tex. App.—Amarillo 2017, pet. denied). However, evidence of a recent
turnaround should be determinative only if it is reasonable to conclude that
rehabilitation, once begun, will surely continue. In re M.G.D., 108 S.W.3d at 514.
In In re M.G.D., this court found that a parent’s “recent turnaround” and
compliance with a service plan are factors a factfinder should consider in a
determination of best interest, but these factors are not determinative in a sufficiency
review. In re M.G.D., 108 S.W.3d at 514–15. See also In re J.O.A., 283 S.W.3d at
346 (evaluating legal sufficiency of endangering conduct evidence; noting “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
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S.A.W., 131 S.W.3d 704, 709 (Tex. App.—Dallas 2004, no pet.) (termination held
to be in best interest despite mother’s lifestyle improvements and eventual
compliance with service plan).
Although the record reflects that Mother completed her service plan and
passed drug tests for the eleven months before the final hearing, it also demonstrates
that she continued to make decisions in her relationship with Father that endangered
the children. Mother dismissed the children’s report of abuse by Father and was
financially dependent on Father despite knowledge of his illegal drug use and reports
of domestic violence. The trial court could have held a firm conviction that, despite
Mother’s recent sobriety, her endangering conduct was likely to continue. Given the
parents’ history of illegal drug use and violence, the factfinder was justified in its
conclusion that the endangering conduct would continue.
The evidence supports the trial court’s finding that Mother endangered the
children for almost the entirety of their lives by exposing them to domestic violence
and failing to maintain separation from Father who physically abused the children.
A parent endangers her children by accepting endangering conduct of other people.
See In re K.K.D.B., No. 14-17-00302-CV, 2017 WL 4440546, at *9 (Tex. App.—
Houston [14th Dist.] Oct. 5, 2017, pet. denied) (mem. op.).
Reviewing all the evidence in the light most favorable to the termination
finding under subsection E, we conclude that a reasonable factfinder could have
formed a firm belief or conviction as to the truth of the finding that Mother
endangered her children through her conduct. See In re J.O.A., 283 S.W.3d at 344.
In light of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the endangerment finding is not so significant that a
factfinder could not reasonably have formed a firm belief or conviction as to the
truth of this termination finding. See In re H.R.M., 209 S.W.3d at 108. As the finder
15
of fact and sole judge of the credibility of the witnesses, the trial court was free to
disregard any or all of Mother’s self-serving testimony. See In re S.A.H., 420 S.W.3d
911, 927 (Tex. App.—Houston [14th Dist.] 2014, no pet.). We hold the evidence is
legally and factually sufficient to support the predicate termination finding under
subsection E, and overrule Mother’s first issue.
Having concluded the evidence is legally and factually sufficient to support
the trial court’s finding under subsection E, we need not review the sufficiency of
the evidence to support the subsections D and R findings. See In re A.V., 113 S.W.3d
at 362. We overrule Mother’s first and second issues.
C. Best Interest of the Children
In Mother’s third issue she challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of her parental rights is
in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(b)(2).
There is a strong presumption that the best interest of the children is served
by keeping the children with their natural parents. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006) (per curiam) (citing Tex. Fam. Code § 153.131(b)); In re D.R.A., 374
S.W.3d at 533. However, prompt and permanent placement of the children in a safe
environment is also presumed to be in the children’s best interest. In re S.R., 452
S.W.3d at 366 (citing Tex. Fam. Code § 263.307(a)). Proof of acts or omissions
under section 161.001(b)(1) is probative of the issue of the children’s best interest.
See id. The considerations that the factfinder may use to determine the best interest
of the children, known as the Holley factors, include:
(1) the desires of the children;
(2) the present and future physical and emotional needs of the children;
(3) the present and future physical and emotional danger to the children;
(4) the parental abilities of the person seeking custody;
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(5) the programs available to assist the person seeking custody in
promoting the best interest of the children;
(6) the plans for the children by the individuals or agency seeking
custody;
(7) the stability of the home or proposed placement;
(8) acts or omissions of the parent that may indicate the existing parent-
child relationship is not appropriate; and
(9) any excuse for the parent’s acts or omissions.
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re S.R., 452 S.W.3d
at 366; see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to be considered
in evaluating “whether the child’s parents are willing and able to provide the child
with a safe environment”). A best-interest finding does not require proof of any
unique set of factors, nor does it limit proof to any specific factors. See Holley, 544
S.W.2d at 371–72; In re S.R., 452 S.W.3d at 366.
In reviewing the legal and factual sufficiency of the evidence to support the
trial court’s finding on best interest, we are mindful of the fact that the focus in a
best-interest analysis is not only on the parent’s acts or omissions, but on the nature
of the relationship the child has with the parent. In re E.N.C., 384 S.W.3d 796, 808
(Tex. 2012).
1. The desires of the children
The children were removed when John was eight years old, Chip was four,
Colin and Carlos were three, and Ana was a newborn. When children are too young
to express their desires, the factfinder may consider that the children have bonded
with the foster parents, are well cared for by the foster parents, and have spent
minimal time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied).
At the time of the final hearing, the children were placed with a maternal aunt.
17
The aunt was willing to keep all four of the younger children and could seek to be
named their foster parent. The Department had located a paternal relative who would
accept John as a foster placement. Mother presented evidence that she regularly
visited the children and they had a bond with her. The Child Advocate and
caseworker both testified that the children were well cared for by their aunt and, with
the exception of John, were thriving in their aunt’s care.
2. Present and future physical and emotional needs of the children and
present and future physical and emotional danger to them
“Regarding this factor, we note that the need for permanence is a paramount
consideration for the child’s present and future physical and emotional needs.” In re
D.R.A., 374 S.W.3d at 533. Establishing a stable, permanent home for a child is a
compelling government interest. Id. While some children may have extraordinary
physical and emotional needs requiring extra care, all children have physical and
emotional needs that must be met every day. The record reflects that at the time they
came into care the boys needed physical care, such as feeding, diapering, and in
Colin’s case, medical attention for an ear infection. The aunt is the only caregiver
Ana has ever known. Ana, despite being born with cocaine in her system, was
healthy and progressing as a normal newborn. Mother was not meeting her
children’s physical and emotional needs at the time of their removal.
Mother argues that “it remains speculative” whether the aunt will meet the
children’s future physical and emotional needs. That the children are currently
thriving is evidence that the aunt can meet their future needs. See In re C.G., No. 14-
18-00412-CV, 2018 WL 4702403, at *5 (Tex. App.—Houston [14th Dist.] Oct. 2,
2018, pet. denied) (mem. op.) (rejecting best-interest challenge of mother who raised
speculation argument).
Continued drug use not only may be considered as establishing an
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endangering course of conduct, but also that termination is in the children’s best
interest. In re B.Z.S., No. 14-16-00825-CV, 2017 WL 536671, at *5 (Tex. App.—
Houston [14th Dist.] Feb. 9, 2017, pet. denied) (mem. op.). While Mother
maintained sobriety for several months before the final hearing Father continued to
test positive for illegal drugs. Mother failed to protect her children from Father, a
known drug user. The record further reflects evidence that Father physically abused
Mother and the children. Mother claims that she separated from Father before the
final hearing, but there was evidence that she continued contact with Father and was
dependent on his income for support. While this court may consider a parent’s
“recent turnaround” as a factor in the best-interest analysis, this factor is not
determinative in a sufficiency review. See In re J.O.A., 283 S.W.3d at 346. The
record also reflects that Mother’s housing situation was not stable. Evidence of a
parent’s unstable lifestyle also can support the conclusion that termination is in the
children’s best interest. In re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at
*10 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.).
The trial court reasonably could have weighed this factor in favor of
termination.
3. Parental abilities of those seeking custody, stability of the home, or
proposed placement, and plans for the children by the individuals or
agency seeking custody
These related factors of the parental abilities of those seeking custody,
stability of the home, or proposed placement, and plans for the children by the
individuals or agency seeking custody compare the Department’s plans and
proposed placement of the children with the plans and home of the parent seeking to
avoid termination of the parent-child relationship. See In re D.R.A., 374 S.W.3d at
535.
19
Mother argues that the aunt is only willing to keep four of the children and
that she wants all of her children returned to her. Mother also argues that she
completed her family service plan. Mother admits the current placement of the
children is “reportedly is safe, stable, protective and provides a loving environment
for the subject children.”
A court may consider whether a parent demonstrated willingness to effect
positive environmental and personal changes within a reasonable amount of time to
address unsafe issues. See Tex. Fam. Code Ann. § 263.307(b)(11). To be sure,
Mother demonstrated willingness to obtain treatment for her substance abuse and
complete the tasks on her family service plan. However, Mother was unable to obtain
and maintain employment or maintain stable housing.
This court and others have found sufficient evidence to support a best-interest
finding, despite evidence of lifestyle improvements made while a parent’s child is
being cared for by others. See In re A.C.B., 198 S.W.3d 294, 299–300 (Tex. App.—
Amarillo 2006, no pet.) (notwithstanding post-removal improvement and
performance of service plan, prior endangering conduct could support termination);
In re M.G.D., 108 S.W.3d at 514 (“[E]vidence of a recent turnaround should be
determinative only if it is reasonable to conclude that rehabilitation, once begun, will
surely continue”). See also In re J.O.A., 283 S.W.3d at 346 (in evaluation of legal
sufficiency of evidence of endangering conduct, noting “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 this case, Mother’s
past behavior and testimony do not indicate that her rehabilitation “will surely
continue.”
20
4. Acts or omissions of the parent that may indicate the existing parent-
child relationship is not appropriate, and any excuse for the parent’s
acts or omissions
Mother left four of her children for several days without telling the adult
caring for the children where Mother was going or how she could be reached. Mother
continued to use cocaine after her children were removed and during her pregnancy
with Ana. Mother’s continued pattern of irresponsible conduct reflects that
termination is in the children’s best interest. The trial court reasonably could have
weighed these factors in favor of termination.
Under all the circumstances in this case and applying the applicable Holley
factors to all the evidence, we conclude that legally- and factually-sufficient
evidence supports the trial court’s finding that termination of Mother’s parental
rights is in the children’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2).
We overrule Mother’s third issue.
III. CONCLUSION
The evidence is legally and factually sufficient to support the trial court’s
finding of endangerment as to Mother under section 161.001(b)(1)(E). And, based
on the evidence presented, the trial court reasonably could have formed a firm belief
or conviction that terminating Mother’s parental rights and appointing the
Department as managing conservator was in the children’s best interest so that they
could promptly achieve permanency through adoption. See In re M.G.D., 108
S.W.3d at 513–14.
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Having overruled each of Mother’s issues on appeal, we affirm the final order
of termination.
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Zimmerer, and Spain.
22