in the Interest of F.M.E.A.F., A.A.F.H., and A.J.F.H., Children

Affirmed in Part, Reversed in Part, and Rendered; and Opinion filed March
21, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00865-CV
IN THE INTEREST OF F.M.E.A.F., A.A.F.H., AND A.J.F.H., CHILDREN
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2013-04982J
OPINION
This case involves the termination of the parental rights of the mother and
fathers of three children after the trial court had previously denied termination.
Appellant Mother of the children and Appellant Father of the two younger children
appeal from the trial court’s termination of their parental rights, challenging the
sufficiency of the evidence. The father of the oldest child has not appealed.
We reverse the trial court’s final order of termination of Mother’s parental
rights for the oldest child because the evidence is legally insufficient to prove by
clear and convincing evidence that termination is in the child’s best interest, and
we render judgment that Mother’s parental rights for the oldest child are not
terminated. We affirm the remainder of the trial court’s final order that has been
challenged on appeal.
I. STANDARDS OF REVIEW
“Termination of parental rights is traumatic, permanent, and irrevocable.” In
re M.S., 115 S.W.3d 534, 549 (Tex. 2003). Termination is a drastic remedy and is
of such weight and gravity that due process requires the state to justify termination
of the parent-child relationship by clear and convincing evidence. In re C.H., 89
S.W.3d 17, 23 (Tex. 2002). Any significant risk of erroneous termination is
unacceptable. In re M.S., 115 S.W.3d at 549. The Supreme Court of Texas “cannot
think of a more serious risk of erroneous deprivation of parental rights than when
the evidence, though minimally existing, fails to clearly and convincingly establish
in favor of [the factfinder’s] findings that parental rights should be terminated.” Id.
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to require clear and convincing evidence. In re
L.G.R., 498 S.W.3d 195, 201 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
Clear and convincing evidence is the measure or degree of proof that will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established. Tex. Fam. Code § 101.007. This heightened
burden of proof results in a heightened standard of review when evaluating the
sufficiency of the evidence. In re L.G.R., 498 S.W.3d at 202.
Under a legal sufficiency review, we look at all the evidence in the light
most favorable to the finding to determine whether a reasonable factfinder could
have formed a firm belief or conviction that the finding was true. In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so. Id. We disregard all
2
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible, but we do not disregard undisputed facts. Id.Under a factual sufficiency review, we also consider disputed and
conflicting evidence. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also
In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018). “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.” In re J.F.C.,
96 S.W.3d at 266.
II. SCOPE OF THE RECORD FOR SUFFICIENCY REVIEW
In several issues, Mother contends that this court’s sufficiency review should
be confined to certain evidence in the record. Thus, we begin by addressing the
scope of the record to be considered in our sufficiency review.
A. Judicial Notice of the Clerk’s Record
In her first issue, Mother contends that the record is limited to the reporter’s
record because the trial court did not announce explicitly that it would take judicial
notice of the clerk’s record. Mother acknowledges authority adverse to her position
from this court. See, e.g., In re K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston
[14th Dist.] 2013, pet. denied). She states, “Because this Court has already spoken
to this issue, Appellant raises this here to preserve for supreme court review of the
due process concerns and split in the courts of appeals.” Because we are bound by
this court’s precedent, we overrule Mother’s first issue. See Taylor v. First Cmty.
Credit Union, 316 S.W.3d 863, 869 (Tex. App.—Houston [14th Dist.] 2010, no
pet.). We presume the trial court took judicial notice of the clerk’s record. See In re
K.F., 402 S.W.3d at 504. But we agree with Mother that no factual statements or
3
allegations contained in the clerk’s record, which were not admitted during the
final hearing, may be considered evidence when reviewing the sufficiency of the
evidence. See id. at 505 (trial court “may not take judicial notice of the truth of
factual statements and allegations contained in the documents” in the court’s files).
B. Evidence Predating the Trial Court’s Prior Order Denying Termination
In her second issue, Mother contends that when reviewing the sufficiency of
the evidence, this court may only consider evidence of “facts and circumstances
that have taken place since February 16, 2016, the date that the trial court denied
the Department’s last request to terminate Mother’s parental rights.” For example,
she contends that this court may not consider Mother’s criminal history before
February 16, 2016.
1. Procedural Background
In September 2013, the Department of Family and Protective Services filed
its original petition in a suit affecting the parent-child relationship, seeking to
terminate the parents’ rights to their children. The trial court held a final hearing in
2015 and ultimately signed a final order on February 16, 2016, denying the
Department’s request for termination because the Department failed to prove that
termination was in the children’s best interest. The trial court designated the
Department as the children’s sole managing conservator while retaining limited
possessory conservatorships for the parents.
In November 2017, the Department filed a motion to modify the final order,
again seeking termination of the parent’s rights. The final hearing on the motion to
modify and for termination occurred in August 2018. Mother objected to the trial
court’s admission of her judgments of convictions that predated the original final
hearing in 2015, and the court overruled her objections.
4
2. Legal Principles
When, as here, the Department seeks termination after a trial court’s prior
denial of termination, the trial court may terminate parental rights by following the
familiar procedure under Section 161.001 of the Family Code, or the court may
terminate parental rights under Section 161.004. See In re A.L.H., 515 S.W.3d 60,
89 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). Section 161.001 provides
the typical avenue for termination, when a court may terminate based on findings
that (1) the parent committed one or more acts specifically named in the Family
Code as grounds for termination, and (2) termination is in the child’s best interest.
See In re U.P., 105 S.W.3d 222, 229 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied). Section 161.004 provides an alternative method for termination following
the rendition of an order that previously denied termination if (1) termination is in
the child’s best interest, (2) the new petition to terminate was filed after the date of
the prior order denying termination; (3) the parent committed an act listed under
Section 161.001 before the date of the prior order denying termination; and (4) the
circumstances of the child, parent, sole managing conservator, possessory
conservator, or other party affected by the order have materially and substantially
changed since the date of the order. Tex. Fam. Code § 161.004(a). At a hearing
under this section, “the court may consider evidence presented at a previous
hearing in a suit for termination of the parent-child relationship of the parent with
respect to the same child.” Tex. Fam. Code § 161.004(b).
3. Scope of Record for Sufficiency Analysis Includes Evidence Predating
Prior Order
In this case, the Department asked for termination based on both Sections
161.001 and 161.004, and the trial court made findings related to both statutes. It is
clear from the arguments presented to the trial court and on appeal that the
5
Department was relying on Mother’s conduct occurring both before and after the
February 16, 2016 order denying termination. Mother contends that the
Department “can’t have it both ways” and rely on evidence from both before and
after the order.
We disagree with Mother’s contention. Section 161.004 does not state that
the trial court may not rely on evidence of acts listed in Section 161.001 occurring
both before and after the prior order of termination. Nor does Section 161.004 state
that the trial court’s best interest analysis is limited to evaluating evidence of facts
and circumstances occurring after the trial court’s prior order. On the contrary, the
statute allows the trial court to consider evidence presented at a previous hearing.
See Tex. Fam Code § 161.004(b).
The Fort Worth Court of Appeals evaluated the text of the statute, its history,
and public policy to address the question of whether Section 161.004 was the
“exclusive means to terminate a parent’s rights after denial of a prior termination
or just a means to admit evidence from a prior termination trial.” In re K.G., 350
S.W.3d 338, 345–52 (Tex. App.—Fort Worth 2012, pet. denied). The court
reasoned that the statute was a means to admit evidence from a prior termination
hearing, and the court held that the trial court erred by admitting such evidence
because the Department did not plead Section 161.004 as a ground for termination.
See id. at 352. This court similarly held in In re A.L.H. that Section 161.004
provides only one of several avenues for termination of parental rights. See 515
S.W.3d at 89. Accordingly, Mother’s second issue is overruled. In evaluating the
sufficiency of the evidence regarding the best interests of the children and
regarding Mother’s conduct in violation of Section 161.001, we will consider
evidence presented before and after the trial court signed is prior order denying
termination.
6
4. Sufficient Evidence of Material and Substantial Change
In her eighth issue, Mother contends that there is legally and factually
insufficient evidence of a material and substantial change. Mother does not request
any specific relief under this issue, cite to any legal authority, or analyze the
evidence under any particular standard of review. Accordingly, it is unclear
whether Mother’s eighth issue directly attacks the final order or is intended to
affect the scope of review of her other sufficiency points. See In re D.N., 405
S.W.3d 863, 870 (Tex. App.—Amarillo 2013, no pet.) (“[T]o rely on acts or
omissions evidence of which has been presented to the trial court prior to the
earlier order denying termination, the Department must garner sufficient evidence
of section 161.004’s elements, including a material and substantial change of the
parties’ circumstances.”). We assume without deciding that the Department was
required to prove a material and substantial change to rely on evidence of acts or
omissions occurring before the trial court’s prior order. See id. at 869–70. Because
we ultimately consider evidence of acts and omissions occurring before the date of
the trial court’s prior order when evaluating the sufficiency of the evidence to
prove the children’s best interest and the predicate ground for termination, we will
review the sufficiency of the evidence to support the trial court’s finding of a
material and substantial change in circumstances.
“[T]here are no definite guidelines as to what constitutes a ‘material and
substantial change in circumstances’ to terminate parental rights under section
161.004.” In re A.L.H., 515 S.W.3d at 89. By way of example, this court has
determined that a material and substantial change existed when the parent was
adjudicated guilty of a crime and sentenced to prison after the prior order, see In re
C.A.C., No. 14-12-00396-CV, 2012 WL 4465234, at *9 (Tex. App.—Houston
[14th Dist.] Sept. 27, 2012, no pet.) (mem. op.), and when a parent failed to
7
complete a family service plan by failing to visit the child and attend medical
appointments, see In re M.J.W., No. 14-16-00276-CV, 2016 WL 4206046, at *8
(Tex. App.—Houston [14th Dist.] Aug. 9, 2016, pet. denied) (mem. op.).
It is undisputed in this case that Mother signed a family service plan
directing her to refrain from criminal activity, and she subsequently committed a
state jail felony theft for which she was placed on community supervision. Then
she pleaded guilty to another state jail felony theft, and her community supervision
was revoked. In each case, she was sentenced to 180 days in state jail to run
concurrently. She was incarcerated at the time of the final hearing. When she was
arrested, she failed to attend a supervised meeting with her children or provide
advanced notice of her absence as required by the family service plan.
Mother’s failures to comply with the family service plan and her
incarceration for state jail felonies support the trial court’s finding by clear and
convincing evidence that there was a material and substantial change under Section
161.004. See id.; In re C.A.C., 2012 WL 4465234, at *9–10.
Mother’s eighth issue is overruled.
III. BEST INTEREST OF THE CHILDREN
Under both avenues for termination pleaded by the Department and found by
the trial court in this case, the Department had the burden to prove by clear and
convincing evidence that termination was in each child’s best interest. See Tex.
Fam. Code §§ 161.001(b)(2), 161.004(a)(4). In her third issue, Mother challenges
the legal and factual sufficiency of the evidence to support the trial court’s best-
interest finding for each of the three children. In his sole issue on appeal, Father
challenges the factual sufficiency of the evidence to support the trial court’s best-
interest finding for the two younger children.
8
A. Legal Principles
The purpose of the State’s intervention in the parent-child relationship is to
protect the best interests of the children, not to punish parents for their conduct. In
re A.V., 113 S.W.3d 355, 361 (Tex. 2003). There is a strong presumption that the
best interest of a child is served by preserving the parent-child relationship. In re
B.J.C., 495 S.W.3d 29, 35 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
In assessing whether the evidence is sufficient to prove that termination is in
the best interest of a child, we may consider the non-exclusive factors discussed in
Holley v. Adams, 544 S.W.2d 367, 371–72 (1976). See In re E.C.R., 402 S.W.3d
239, 249 & n.9 (Tex. 2013). These factors include (1) the child’s desires; (2) the
child’s present and future emotional and physical needs; (3) any present or future
emotional and physical danger to the child; (4) the parental abilities of the
individuals seeking custody; (5) the programs available to assist the individuals
seeking custody to promote the child’s best interest; (6) the plans for the child by
the individuals or agency seeking custody; (7) the stability of the home or proposed
placement; (8) the parent’s acts or omissions which may indicate that the existing
parent-child relationship is improper; and (9) any excuse for the parent’s acts or
omissions. Id. (citing Holley, 544 S.W.2d at 371–72). We also consider the
statutory factors in Section 263.307 of the Family Code, including the child’s age
and vulnerabilities. See In re A.R.M., No 14-13-01039-CV, 2014 WL 1390285, at
*9 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (citing Tex.
Fam. Code § 263.307(b)).
The best-interest analysis is child-centered and focuses on the child’s well-
being, safety, and development. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). A
child’s need for permanence through the establishment of a stable, permanent
9
home is the paramount consideration in a best-interest determination. In re B.J.C.,
495 S.W.3d at 39.
B. Evidence
At the time of the final hearing in August 2018, Mother had three children,
and the two younger children were also Father’s. The oldest child, F.M.E.A.F
(Fanny), was sixteen at the time of the final hearing. The two younger children,
A.A.F.H. (Abigail) and A.J.F.H. (Adam), were ten and seven respectively. 1
1. Mother
Mother is bipolar and has a history of not being properly medicated. When
she is not properly medicated, she is unstable. In July 2013, Mother had a “mental
breakdown” following the death of her twin babies shortly after their births. While
Mother was visiting in Dallas, she threatened suicide in her children’s presence by
breaking a pair of sunglasses and threatening to slit her wrists. Mother was held in
a psychiatric hospital for a week and a half while the Department took emergency
custody of the children.
Mother has an extensive criminal history for thefts, trespassing, and resisting
arrest, as reflected by judgments of convictions admitted at the final hearing:
1
We use fictitious names for the minors. See Tex. R. App. P. 9.8.
10
Offense Offense Date Conviction Date Sentence
Theft <$2,500 2/more 3/8/2018 7/17/2018 180 days TDCJ state
prev convs jail
Trespass Prop/Bldg- 11/17/2016 2/8/2017 2 days jail
No Depart
Theft <$2,500 2/more 9/12/2016 7/17/2018 180 days TDCJ state
prev conv jail
Trespass Prop/Bldg – 2/14/2015 2/16/2015 6 days jail
No Depart
Theft Under $1500 – 7/5/2014 2/17/2015 1 year TDCJ state jail
3rd Offense
Resisting 2/8/2013 2/15/2013 30 days jail
Arrest/Search
Theft Under $1500 – 9/26/2011 5/17/2012 8 months state jail
3rd Offense
Evading Arrest/ 4/7/2010 4/14/2010 14 days jail
Detention
Theft $50 to $500 12/5/2005 12/08/2005 30 days jail
Resisting Arrest 4/7/2005 4/15/2005 20 days jail
Resisting Arrest 6/1/2000 6/9/2000 30 days jail
Theft $50 to $500 1/12/2000 6/9/2000 30 days jail
Mother testified that she had been convicted of other thefts not reflected in this
table. At the time of the final hearing in August 2018, Mother was incarcerated for
two state jail felony theft cases. She anticipated being released in November 2018.
After the trial court denied the Department’s initial request to terminate
parent-child relationships in 2015, the Department gave Mother a new family
service plan. The Department described its permanency goals for each child as
“relative/fictive kin adoption.” The service plan explained that relative/fictive kin
adoption would require termination of the parents’ rights.
The Department’s caseworker, who had been on the case for about a year by
the time of the final hearing, testified about Mother’s compliance and
noncompliance with the service plan. The caseworker testified that Mother had
complied with the service plan requirements of completing parenting classes, a
psychological exam, the “Been There Done That” program, an anti-theft course,
11
and random drug testing. Mother did not test positive for any drugs and does not
have a problem with substance abuse.
The caseworker testified that Mother did not comply with her service plan
because she failed to refrain from engaging in illegal activity. The caseworker
testified that Mother was not compliant with the psychiatric treatment required by
the service plan. However, the caseworker admitted that Mother had received some
psychiatric treatment. The caseworker received a letter in August 2017 showing
that Mother was compliant with her psychiatric treatment. The caseworker
believed the Department should have received “something monthly saying that
Mom is complying with all her psychiatric recommendations and treatment.” The
service plan, however, does not require Mother to send “something monthly” to the
Department. Rather, the service plan required Mother to “provide the [Department]
worker with a release of information for all service providers, medical personnel,
and officers of the court to obtain records and progress information regarding her
case.” Mother testified that she did not know she was supposed to provide the
caseworker with a letter every time she went to the doctor.
The caseworker also testified that the service plan required mother to
comply with her medications and make the Department aware of compliance.
Indeed, the service plan required Mother to “remain in compliance with her
medications and provide a list of her medications to the worker.” The caseworker
testified that the most recent information regarding Mother’s current medications
was the August 2017 letter.
Mother testified that she remained in compliance with her medications. She
testified that she was seeing a psychiatrist and was medicated with a mood
stabilizer, a pill for anxiety, a pill for seizures, and Prozac for depression. She
12
testified that she was “stable” for a year on medications, but she was not stable at
the time of the final hearing.
The caseworker testified that before mother was arrested for her current
charge, Mother had been “pretty consistent” maintaining contact with the
Department and attending her visits with the children twice per month. Mother
would always answer her phone and take random drug tests. But Mother had not
always been on time for her visits. When Mother did not show up to a scheduled
visit as a result of her recent arrest, the caseworker knew “something was wrong.”
The caseworker testified that Mother did not display any mental health
illness or disability during the supervised visits. Nothing occurred during the visits
that indicated to the caseworker that Mother was not compliant with her mental
health. According to one of the Department’s permanency reports, however,
Mother had an unsupervised weekend visit in 2015 during which Mother took the
children to a store and “had them stealing items with her.”
Mother brought a lot of things for the children to the visits. She would bring
clothes, shoes, and things they needed for school. But the caseworker testified that
Mother’s child support payments have “not been consistent.”
Mother also testified that the children were healthy before the Department
took custody of them. She testified that she had been able to provide them with a
home, clothing, and food before the Department took them. According to the
family service plan, Mother had ensured that the children attended school daily
before the Department took custody. The family service plan also stated that
Mother had familial support and community support in the form of Medicaid,
SNAP, and SSI.
13
Mother testified that she provided the Department with proof of a stable
home environment before she was arrested, but she could not provide any stable
housing for the children at the time of the final hearing. She testified that when she
is released from jail, she will be able to go back to work at a Whataburger
restaurant. She testified that she had a husband and would have a home.
2. Father
Father has an extensive criminal history, and his offenses primarily include
drugs and assaults:
Offense Offense Date Conviction Date Sentence
Possession With 7/29/2015 10/18/2016 2 years institutional
Intent to Deliver division TDCJ
Controlled Substance
Assault – Bodily 3/12/2016 4/8/2016 13 days jail
Injury
Assault – Family 3/12/2014 10/29/2014 120 days jail
Member
Possession of 5/2/2012 5/7/2012 20 days jail
Controlled Substance
Possession of 2/6/2012 2/9/2012 8 days jail
Marijuana
Possession of 10/2/2010 12/9/2010 7 months state jail
Cocaine
Resisting Arrest 7/26/2010 7/30/2010 30 days jail
Resisting Arrest 2/16/2010 2/19/2010 8 days jail
Violation of 1/29/2009 5/19/2009 1 year jail
Protective Order
Assault – Family 11/23/2008 12/31/2008 – 100 days jail
Member Convicted
5/20/2009 –
Probation Revoked
Possession of 11/24/2007 1/28/2008 4 days jail
Marijuana
Mother was the complainant for the May 2009 convictions for assault and violation
of a protective order. And, Father violated the protective order by assaulting
Mother. He had a “history of PCP use” according to the Department’s records.
14
Father received a family service plan, but according to the caseworker, he
did not complete any of the requirements. Specifically, he did not complete any
parenting classes, a substance abuse assessment, or a psychosocial evaluation. He
did not submit to any random drug tests, and he did not pay child support. And of
course, he did not refrain from criminal activity.
According to the caseworker, since Father was released from prison in the
fall of 2017, he had visited Abigail and Adam maybe two or three times until May
2018. By the time of the final hearing, he was visiting about twice per month. His
last visit was in June 2018. He was not always on time. While Mother was in jail,
Father would let the children talk to her on the phone during his visits. The
caseworker described his visits with the children as “appropriate.”
Father testified that at the time of the final hearing he was living in a one-
bedroom apartment with his mother, and his housing situation would not allow for
the children to live with him. He agreed that he could not take care of the children
and provide them with a good home at the time of the final hearing.
Father testified that he was working as a server at Sweetie Pies restaurant
and making $2.15 an hour. He testified that the Department had “filed” against him
to get child support out of his paycheck, but nothing had been taken out. He had
not paid any child support for Abigail and Adam since he was released from prison
in the fall of 2017. He testified that he has a total of ten children, most of whom
were minors at the time of the final hearing. He was not paying child support to the
Attorney General’s Office for any of them.
When asked about what his plans were for his children, he testified he would
like Abigail “to be a great woman” and for Adam to be President. Father wanted
Abigail to live with Father’s sister or his mother’s cousin (hereafter, Cousin).
Father wanted his son to live with Father.
15
3. The Children
The Department’s records describe sixteen-year-old Fanny as a bright,
beautiful, and well-mannered girl with a big heart. She ran track for school and
made As and Bs. She plans to go to college. She was, however, always worried
about her younger siblings because she felt like a parent to them.
The Department’s records describe ten-year-old Abigail as a high-strung
child who is very active. She struggled academically and “continues to have severe
behavioral problems in the foster home, which includes temper tantrums, mood
swings, disruptive and defiant behaviors, and stealing.” Abigail reported that she
“enjoys stealing because her mother steals and the police will not take children to
jail.”
While in the Department’s custody, Abigail’s “behavior has increase[d,] and
she is now showing sign [sic] of sexually inappropriate behaviors.” She was
“hospitalized for inappropriate sexual behavior and for attempting to physically
harm her foster dad by kicking and hitting him.” By the time of the final hearing,
Abigail was on medications for ADHD, a mood disorder, and insomnia.
The Department’s records describe seven-year-old Adam as doing well in
school, but he has “begun to have slight behaviors which includes not listening and
having crying spells and temper tantrums.” He displayed aggression toward his
foster parents, and he did not like to follow directions. He “has high expectations
that he will return home, and states his behavior is because []he will not be in the
foster home for long.” Adam was on medications for ADHD, anxiety, and
aggression.
The caseworker testified that the children understand they might not live
physically with Mother, but they still want to see her. They look forward to her
16
visits. They love her. The children are happy to see their father at visits, and they
love him. The children get “very disappointed and upset” when their parents do not
attend visits and when the children are not able to communicate with their parents.
Fanny has also felt humiliated and embarrassed by the actions of her parents.
Abigail and Adam knew that Mother was in jail by the time of the final hearing.
The caseworker testified that Fanny wants a mother and does not want to be
adopted. The only complaint that the caseworker knew about Fanny from a foster
parent related to a time Fanny possessed a cell phone and would make
unsupervised phone calls back and forth with Mother. Fanny was calling Mother
because Fanny wanted to talk to Mother. By the time of the final hearing, Fanny
was aware of Mother’s mental health disability.
The caseworker was not sure she could answer whether Fanny wanted a
father. There is no evidence about whether Abigail and Adam want to live with
their parents because the trial court sustained the Department’s objection when
Mother’s attorney cross-examined the caseworker. The caseworker testified that
she had not talked with the younger children about the difference between adoption
and conservatorship.
4. Placements
Up until the final hearing, the children had been living together in foster
care. On the second day of the final hearing, however, Fanny moved into a
relative’s home without her siblings. Quite a few families had asked to adopt
Fanny, but she did not want to be adopted. The Department’s primary goal for
Fanny is “independent living” so Fanny will “age out of the system.”
The caseworker testified that parental rights did not need to be terminated
for Fanny to go through independent living courses. When asked whether Mother’s
17
rights could be kept intact and Fanny still age out appropriately, the caseworker
testified, “Yes, she could.”
The caseworker testified that if Mother’s rights were not terminated for
Fanny, the relative could still provide a safe environment for Fanny. The relative,
however, did not have a good history with Mother. The relative had “backed away”
from being considered for placement earlier because the relative was concerned
about Mother’s mental well-being and lifestyle choices.
The Department’s goal for the younger children was adoption. The
Department had “broadcast” the younger children for adoption twice—in 2016 and
2017. There were “no hits,” which meant that the Department could not find an
adoptive family for the younger children. The Department had not had any luck
finding a foster parent who wanted to adopt or keep the younger children long
term. The younger children have lived in at least four different foster homes over
the past five years. Their most recent foster home placement lasted about fifteen
months. According to the caseworker, the younger children were getting all of their
needs met in foster care.
The caseworker also testified regarding fifteen relatives considered by the
Department for the children’s placement. According to the caseworker, none of
them were appropriate. The relative with whom Fanny was placed did not want the
younger children due to the relative’s work schedule. For the other relatives, either
the individuals did not want the children, they were denied by the Department, or
there was a lack of follow-up.
Like the relative who ultimately agreed to take Fanny, at least one of these
other relatives did not want to be considered for placement because they “did not
want to deal with” Mother. The caseworker testified that she had concerns about
placing the younger children with relatives if the Mother’s rights were not
18
terminated. Placements with relatives had not worked out in the past because of
Mother’s behaviors—specifically, “Not being on her meds and fighting with
relatives.” The caseworker believed that the Department would have a better
chance at finding a successful relative placement for the younger children if
Mother’s parental rights were terminated.
Cousin was a potential relative placement whom the Department was still
considering at the time of the final hearing. Cousin testified that she was a former
foster parent for fifteen to twenty years, and she was willing to take all three
children. She was not interested in adopting the children because she was seventy-
six years old. She would have had no problems if the parents’ rights were not
terminated and they were allowed to visit with the children.2
C. Legally Insufficient Evidence that Termination of Mother’s Parental
Rights is in Fanny’s Best Interest
Considering all of the evidence discussed above, a reasonable factfinder
could not have formed a firm belief or conviction that termination of Mother’s
parental rights is in Fanny’s best interest.
The desire of a child is only one factor to consider, but the factor weighs
against termination when evidence of the parent’s failures is not overwhelming.
Yonko v. Dep’t of Family & Protective Servs., 196 S.W.3d 236, 245 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). A child’s love for a parent cannot be ignored as
a reflection of the parent’s ability to provide for the child’s emotional needs. Id. A
child’s love for their parent is “a very important consideration in determining the
best interest of the children,” although it cannot override or outweigh evidence of
danger to the child. In re K.L.P., No. 14-18-00582-CV, 2018 WL 6684275, at *10
2
At the conclusion of the final hearing, the court ordered the Department to conduct a
home study on Cousin within thirty days.
19
(Tex. App.—Houston [14th Dist.] Dec. 20, 2018, pet. denied) (mem. op.)
(affirming termination despite grade-school-aged and younger children’s love for
their mother because the mother failed to protect the children from the father’s
physical abuse).
Here, more than merely express love for her Mother, a well-adjusted sixteen-
year-old child expressed her desire to have a mother and not to be adopted by
anyone. The only rational view of this evidence is that Fanny did not want
Mother’s parental rights terminated.
The Department respected Fanny’s wishes regarding adoption, changing the
Department’s goal for Fanny from “relative/fictive kin adoption” to “independent
living” with the plan for Fanny to “age out” of the system. This evidence
demonstrates that Fanny was sufficiently mature for her wishes to be afforded
respect. See Yonko, 196 S.W.3d at 245 (nine-year-old’s desire to remain with
mother weighed against a finding that termination was in child’s best interest); cf.
In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014, pet. denied)
(discounting the desires of children ages five through nine because “there was no
indication that any of the children were sufficiently mature to express a preference
as to their placement”).
As the caseworker acknowledged, the Department’s goal for Fanny to
transition to independent living by aging out of the system could be met even if the
trial court did not order termination. Although the relative with whom Fanny had
been placed initially expressed concern about Mother’s conduct and mental illness,
the caseworker testified that the relative could still provide a safe environment for
Fanny regardless of whether Mother’s rights were terminated.
“Evidence about placement plans and adoption are, of course, relevant to
best interest.” In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). The Supreme Court of
20
Texas has cautioned that a “lack of evidence about definitive plans for permanent
placement and adoption cannot be the dispositive factor” because if so,
terminations would regularly be subject to reversal on the sole ground that “an
adoptive family has yet to be located.” Id. Regarding Fanny, this record contains
not a mere lack of evidence regarding definitive plans for adoption, but undisputed
evidence that there are no plans for adoption now or in the future. Thus, there is no
evidence that termination would further the need for permanence through the
establishment of a stable, permanent home.
Undoubtedly, Mother’s repeated violations of the law and imprisonment
weigh in favor of a finding that termination is in the best interest of a child. See,
e.g., Yonko, 196 S.W.3d at 246 (reasoning that a parent’s incarceration threatened
the child’s needs). Mother’s conduct has caused Mother’s absence from Fanny’s
life and caused Fanny disappointment, embarrassment, and humiliation.
But incarceration alone is not a sufficient basis for termination of parental
rights. Id. (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987)). “Termination of parental rights should not become an additional
punishment for imprisonment for any crime.” In re C.T.E., 95 S.W.3d 462, 466
(Tex. App.—Houston [1st Dist.] 2002, pet. denied); see also In re E.N.C., 384
S.W.3d 796, 805 (Tex. 2012) (rejecting proposition that any offense committed by
a parent that could lead to imprisonment or confinement would establish
endangerment to children). In considering the acts and omissions of a parent
leading to the parent’s incarceration, we consider the expected length of
imprisonment and whether it can be inferred from the criminal conduct that the
parent has endangered the safety of the children. See In re C.T.E., 95 S.W.3d at
466.
21
In In re C.T.E., for example, the First Court of Appeals held that the
evidence was insufficient to prove that termination was in the children’s best
interest when the father’s criminal conduct of theft was “not the type from which it
can be inferred that he has endangered the safety of his children.” Id. 3 The court
reached this conclusion despite the fact that the father engaged in criminal conduct
after signing his family service plan, see id. at 466–67, and the fact that the father
had prior convictions for possession of cocaine, burglary of a habitation, and
assault against the children’s mother, see id. at 464. The father was expected to be
released from prison ten months after the final hearing. Id. at 466.
Here, Mother’s theft, trespass, and resisting arrest convictions are not the
type from which it can be inferred that she has endangered Fanny’s physical safety.
See id. at 466 (theft); In re D.T., 34 S.W.3d 625, 639 (Tex. App.—Fort Worth
2000, pet. denied) (writing hot checks); see also Yonko, 196 S.W.3d at 244–49
(factually insufficient evidence although parent participated in aggravated assault
and violated community supervision). Mother was expected to be released from
jail only a few months after the final hearing. See In re C.T.E., 95 S.W.3d at 466(ten months, insufficient evidence of best interest).
Mother’s criminal endeavors, including at least once perpetrated with the
assistance of her children, certainly indicate that the parent-child relationship may
be improper. But unlike most decisions upholding termination based on repeated
3
Although the court reversed for factual insufficiency, the decision was issued at a time
when the court followed “the usual standard in reviewing the legal sufficiency of the evidence.”
In re C.T.E., 95 S.W.3d at 465. After the decision, however, the Supreme Court of Texas
clarified that the usual standard for legal sufficiency does not apply to a parental termination case
because the burden of proof is clear and convincing evidence. See In re J.F.C., 96 S.W.3d 256,
264–65 (Tex. 2002). Like the current standard for determining legal sufficiency in a parental
termination case, the First Court of Appeals in In re C.T.E. held that the factfinder “could not
have reasonably formed a firm belief” that termination was in the children’s best interest. In re
C.T.E., 95 S.W.3d at 469.
22
criminal conduct, there is no evidence that Mother has perpetrated violence in the
home or has a substance abuse problem. See, e.g., In re D.T., 34 S.W.3d at 636
(collecting cases involving sexual and physical abuse and drugs; “In the cases we
have found involving termination of parental rights of imprisoned parents,
endangerment to a child could easily have been inferred from the underlying
conduct of the parent.”); cf., e.g., In re A.R.M., No 14-13-01039-CV, 2014 WL
1390285, at *8–11 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem.
op.) (affirming parental termination in part based on parent’s frequent
incarcerations for drug-related offenses and use of drugs).
The caseworker testified that Mother does not have a substance abuse
problem. And, there is no evidence that Mother has been violent toward the
children. There is undisputed evidence that, prior to the Department taking custody
of the children, Mother provided them with a home, clothing, food, education, and
stability. The Department adduced evidence that Mother had community and
familial support.
Regarding the excuse for Mother’s actions, the Department adduced
evidence that Mother suffers from bipolar disorder and has not been adequately
medicated. Although there is undisputed evidence that Mother has not been
consistently medicated, Mother gave undisputed testimony that she was in therapy
and on a variety of medications at the time of the final hearing, but the medications
were not adequately stabilizing her mental health disability. In the twice-monthly
visits with the children, Mother never displayed any signs of her mental health
disability. Fanny, well-aware of Mother’s mental health disability, nonetheless
desires to retain her relationship with Mother.
23
None of the remaining Holley factors weigh significantly on Fanny’s best
interest. For example, there is no evidence that Fanny has any specialized
emotional or physical needs that would be served by termination.
Considering the evidence in the entire record, with due regard to the
factfinder’s role as the judge of the credibility of the witnesses, no reasonable
factfinder could have formed a firm belief or conviction that termination of
Mother’s parental rights is in Fanny’s best interest.
Mother’s third issue is sustained in part.
D. Legally and Factually Sufficient Evidence that Termination of Mother’s
Parental Rights is in Abigail’s and Adam’s Best Interest
Several factors lead us to reach an opposite conclusion regarding the
sufficiency of the evidence to support the trial court’s finding that termination of
Mother’s parental rights is in Abigail’s and Adam’s best interest.
First, although there is evidence that the two younger children love Mother,
there is no evidence regarding whether the children desire termination of the
parent-child relationship or to be adopted. The caseworker did not speak with the
younger children about the difference between conservatorship and adoption.
Second, the Department has established a goal for the children to be
adopted. The caseworker opined that the Department would have a better chance at
finding a successful relative placement for the younger children if Mother’s
parental rights were terminated, and the caseworker provided examples of relatives
who had declined to take the children due to Mother’s involvement. This evidence
strongly favors the trial court’s finding that termination is in the younger children’s
best interest because of the paramount goal of establishing a permanent, stable
home for the children.
24
The Department has not had much success with finding adoptive parents for
the children, however, and the children have lived in at least four foster homes
over the course of five years, which weighs against a finding that termination is the
children’s best interest. See In re C.T.E., 95 S.W.3d at 467–68. Moreover, while in
the Department’s care, Abigail has begun “showing sign of sexually inappropriate
behaviors,” for which she had to be “hospitalized.” This undisputed evidence
weighs against a finding that termination is in the children’s best interest. See id. at
467–69 (insufficient evidence to support best interest finding when child lived in
six foster homes in five years, siblings had been separated, child had been sexually
abused while in the Department’s care, parent’s conviction for theft did not show
endangerment, and there was no evidence of parent’s dealing drugs since child’s
birth).
Despite this lack of permanency in foster care, the caseworker testified that
the younger children were getting all of their needs met in foster care. Mother, on
the other hand, was incarcerated and not stable on her mental health medications.
She could not provide a stable and permanent home for the children. This evidence
favors the trial court’s finding.
Third, Abigail and Adam are younger and have more specialized needs, and
the risk for emotional danger is greater compared to Fanny. Both children have
displayed aggression toward their foster parents, and both were taking medications
for mental health. Mother’s conduct and influence has contributed to these
specialized needs and emotional endangerment. For example, Abigail reported that
she steals because Mother steals. And Adam displays aggression toward his foster
parents because he expects to return home and does not expect to live in foster care
much longer, despite the fact that the children have been under the Department’s
25
custody for five years in part because of Mother’s repeated criminal conduct. This
evidence favors the trial court’s finding.
Considering the evidence in the entire record, a reasonable factfinder could
have formed a firm belief or conviction that termination of Mother’s parental rights
was in Abigail’s and Adam’s best interest.
Mother’s third issue is overruled in part.
E. Factually Sufficient Evidence that Termination of Father’s Parental
Rights is in Abigail’s and Adam’s Best Interest
Father’s criminal history is of a different character compared to Mother’s.
He has committed numerous drug-related and assaultive offenses, including
against Mother. Thus, his criminal history and the continuation of this lifestyle
since the Department took custody of the children weighs in favor of the trial
court’s finding that termination is in Abigail’s and Adam’s best interest.
Furthermore, Father had not completed any of the services in the family
service plan, and he was not compliant with substance abuse testing. He had a
history of using PCP. He did not regularly see the children at supervised visits until
the summer before the final hearing, even when he was not in prison. There is little
evidence that Father provided emotional or physical support for the children before
or since the Department took custody. He did not provide any monetary support. It
was undisputed at the time of the final hearing that he could not support either of
his children since he lived in a one-bedroom apartment with his mother.
Considering the entire record, a reasonable factfinder could have formed a
firm belief or conviction that termination of Father’s parental rights was in
Abigail’s and Adam’s best interest. See, e.g., In re C.A.B., 289 S.W.3d 874, 884–
89 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (sufficient evidence of
endangerment and best-interest finding for parents with criminal lifestyle involving
26
drugs, inconsistent visitation with child, failure to substantially complete family
service plan, refusal to complete drug testing, and inability to provide stable home
environment).
Father’s sole issue is overruled.
IV. PREDICATE GROUND FOR TERMINATION
In her fourth through seventh issues on appeal, Mother challenges the
sufficiency of the evidence to support the trial court’s findings of the three
predicate grounds for termination under subsections (E), (F), and (O). See Tex.
Fam. Code § 161.001(b)(1)(E), (F), (O).
Only one predicate finding under Section 161.001(b) is necessary to support
a final order 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 355, 362 (Tex. 2003). If we find that
there is sufficient evidence to support one of the predicate findings, we need not
address the sufficiency of the evidence related to the other predicate findings. In re
E.A.K., 192 S.W.3d 133, 151 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
Mother asks this court to address subsection (E) because of potential collateral
consequences related to the finding, unlike the findings under subsection (F) and
(O). See In re C.M.-L.G., No 14-16-00921-CV, 2017 WL 1719133, at *8 (Tex.
App.—Houston [14th Dist.] May 2, 2017, pet. denied) (mem. op.). Without
conceding that such review is always necessary, we nonetheless will review the
sufficiency of the evidence to support the trial court’s finding under subsection (E).
See id. at *8 & n.6.
Under subsection (E), a court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence that the parent
engaged in conduct which endangers the physical or emotional well-being of the
27
child. Tex. Fam Code § 161.001(b)(1)(E). The term “endanger” means the child
was exposed to loss or injury or jeopardized. In re C.A.B., 289 S.W.3d at 882
(citing Tex. Dep’t of Human Servs v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
Endangerment encompasses more than a threat of metaphysical injury or possible
ill effects of a less-than-ideal environment. Id. (citing Boyd, 727 S.W.2d at 533).
The statute does not require that conduct be directed at a child or cause actual
harm; rather, it is sufficient if the conduct endangers the emotional well-being of
the child. Id. at 883.
Termination under subsection (E) must be based on more than a single act or
omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. In re F.E.N., 542 S.W.3d 752, 763 (Tex. App.—Houston
[14th Dist.] 2018, pet. filed). In determining whether there is a sufficient course of
conduct, a court may consider the parent’s actions and inactions occurring both
before and after a child’s birth, and before and after the child was removed from
the parent’s home. Id. at 763–64.
As a general rule, subjecting a child to a life of uncertainty and instability
endangers the child’s physical and emotional well-being. Id. at 764. Mere
imprisonment, standing alone, does not constitute engaging in conduct which
endangers the emotional or physical well-being of a child. Boyd, 727 S.W.2d at
533. But evidence of criminal conduct, convictions, and imprisonment may support
a finding of endangerment. In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.—
Houston [14th Dist.] 2017, no pet.); see also In re S.M.L., 171 S.W.3d 472, 479
(Tex. App.—Houston [14th Dist.] 2005, no pet.) (“When parents are incarcerated,
they are absent from the child’s daily life and are unable to provide support, and
when parents like appellant repeatedly commit criminal acts that subject them to
28
the possibility of incarceration, that can negatively impact a child’s living
environment and emotional well-being.”).
In this case, Mother admits on appeal that she has a “theft addiction.”
Mother’s criminal history shows multiple convictions for resisting or evading
arrest, trespass, and theft spanning a significant time period. Even after the
Department took custody of the children, Mother continued to violate the law and
subject herself to imprisonment. And, there is evidence that Mother used her
children to steal items from a store while on an unsupervised weekend visit with
them in 2015—after the Department had taken custody of the children.
During Mother’s recent incarceration, Abigail and Adam knew Mother was
in jail. The caseworker testified that the children were very disappointed and upset
because Mother was not attending visits with the children. Mother’s jeopardizing
the children’s emotional well-being is evidenced by Abigail’s statement that she
likes to steal because Mother steals. Thus, Mother’s continued criminal activities,
along with her imprisonment for six months on her recent theft case, supports the
trial court’s finding that she engaged in a course of criminal conduct that
endangered the emotional well-being of Abigail and Adam. See In re C.A.B., 289
S.W.3d at 887.
Furthermore, the Department adduced evidence that Mother has not been
taking medications consistently for her bipolar disorder. When Mother does not
take her medications, she is unstable and has been suicidal. “[W]hen a parent’s
mental state allows her to engage in conduct which endangers the physical or
emotional well-being of the child, that conduct has bearing on the advisability of
termination the parent’s rights.” In re K.L.P., No. 14-18-00582-CV, 2018 WL
6684275, at *8 (Tex. App.—Houston [14th Dist.] Dec. 20, 2018, pet. denied)
(mem. op.) (quotation omitted) (upholding termination based on subsection (E);
29
considering, among other things, the parent’s failure to take medications for
schizophrenia, “thus subjecting the children to unpredictable behavior”).
Based on this evidence, the trial court could have found that Mother engaged
in a voluntary, deliberate, and conscious course of conduct that jeopardized
Abigail’s and Adam’s emotional well-being. A reasonable factfinder could have
formed a firm belief or conviction that Mother violated Section 161.001(b)(1)(E),
and the disputed evidence is not so significant that a factfinder could not
reasonably have formed a firm belief or conviction.
Mother’s seventh issue is overruled.
V. CONCLUSION
Having sustained Mother’s challenge to the legal sufficiency of the evidence
to support the trial court’s finding that termination of the parent-child relationship
is in Fanny’s best interest, we reverse the portions of the final order terminating
Mother’s parental rights to Fanny, and we render judgment denying the
Department’s request to terminate Mother’s parental rights to Fanny.
We affirm the remainder of the final order that has been challenged on
appeal. 4
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Zimmerer, and Spain.
4
Mother does not challenge the trial court’s appointment of the Department as Fanny’s
sole managing conservator, so we do not reach that separate issue. See In re J.A.J., 243 S.W.3d
611, 616–17 (Tex. 2007).
30