in the Interest of T. L. B. Jr. AKA T. B.

Opinion issued March 16, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00806-CV
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IN THE INTEREST OF T.L.B. JR. A/K/A T.B.
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2015-05274J
MEMORANDUM OPINION
Following a bench trial, the trial court signed a judgment terminating the
parent-child relationship between T.M.J. (“Mother”) and her two-year-old son,
T.L.B. On appeal, Mother identifies five issues, asserting that the evidence was
not legally or factually sufficient to support the trial court’s judgment. Because we
hold that the evidence was legally and factually sufficient, we affirm.
Background
On September 14, 2015, the Department of Family and Protective Services
(“the Department”) filed suit, seeking to terminate Mother’s parental rights to
T.L.B. and to obtain sole managing conservatorship if family reunification could
not be achieved. In the petition, the Department also sought temporary managing
conservatorship and requested emergency orders.
With respect to the emergency orders, the Department asserted that the
Department had taken possession of T.L.B. on September 12, 2015. To support
the request for emergency order, the Department offered the affidavit of
caseworker T. Duncan.
In her affidavit, Duncan testified that, on April 29, 2015, the Department
“received an intake referral” reporting that T.L.B.’s caregiver, Tiffany, had
physically abused Mother in front of one-year-old T.L.B. In the affidavit, Duncan
indicated that Tiffany was Mother’s “paramour.” Duncan further indicated that
Tiffany’s father, L.J., was the biological father of T.L.B.
With regard to the physical abuse, the report indicated that Tiffany had
punched Mother while she was holding T.L.B. The referral had stated that Tiffany
“assaulted [Mother] by throwing a picture frame at her and using pepper spray on
her.” The picture frame hit T.L.B. in the back of the head, and T.L.B. “began to
wheeze when [Tiffany] sprayed the pepper spray.”
2
Duncan stated that the Department received another referral on June 18,
2015, “alleging neglectful supervision” of T.L.B. The report indicated that Tiffany
was “using drugs” while caring for T.L.B.
Duncan explained in her affidavit that, following the referrals, CPS began an
investigation. Duncan was part of the investigation. CPS learned that Tiffany, not
Mother, was the primary caregiver for T.L.B. During the investigation, Tiffany did
not want to speak to CPS and referred CPS to her attorney; however, neither
Tiffany nor her attorney were cooperative during the investigation. Ultimately, in
August 2015, Tiffany told Duncan that “she would not allow [Duncan] to see
T.L.B.” On September 11, 2015, Duncan and a CPS investigator could not locate
T.L.B. They learned that Tiffany had been “evicted from her apartment due to the
domestic disputes that occurred at her apartment.” Tiffany learned that CPS was
trying to locate her and contacted Duncan. When Duncan went to Tiffany’s new
residence, Tiffany would not allow Duncan inside the residence but spoke to
Duncan at the front door. T.L.B. was then removed from the home by the
Department.
Duncan testified in the affidavit that Mother and Tiffany each had a “CPS
history.” Mother’s parental rights had been terminated with respect to another
child, an infant, in 2012, following reports that Mother had “placed [the child] at
3
risk of harm due to inadequate supervision, chronic domestic violence, drug use
and inadequate medical attention.”
The Department had also received two referrals for “negligent supervision”
of T.L.B. in 2014. During the investigation of the first 2014 referral, Mother tested
positive for marijuana. The second 2014 referral was made after Mother and
Tiffany were both arrested on outstanding warrants, and there was no one to care
for T.L.B. Duncan averred that the Department received another referral in 2015
for negligent supervision of T.L.B. when it was reported that Mother smoked
marijuana around T.L.B.
In her affidavit, Duncan further indicated that Mother and Tiffany had
criminal histories. Mother had a criminal history for theft, and Tiffany had a
lengthier criminal history involving offenses of burglary, theft, forgery, and
possession of a controlled substance.
Duncan concluded her affidavit by asserting that the Department should be
named T.L.B.’s temporary managing conservator “due to the mother’s prior
[Department] history, drug history, extensive domestic violence history, and her
lack of cooperation with [the Department].” Duncan further stated, “At the time of
removal[,] the child was being cared for by [Tiffany]. [Tiffany] is not a parent of
this child. She is not an appropriate caregiver, due to her domestic violence history
4
with the mother, drug history, and history of not cooperating with [the
Department].”
On September 14, 2015, the trial court signed an emergency order for the
protection of T.L.B. In the order, the trial court indicated that it had “examined
and reviewed” Duncan’s affidavit. The trial court found that T.L.B. had been
removed pursuant to Family Code section 262.104, which authorizes possession
without a court order if circumstances would lead a person of ordinary prudence
and caution to believe that the child faced “an immediate danger to [his] physical
health or safety.”1 The court also found that T.L.B. faced a continuing danger to
his physical health or safety if returned to “the parent” or “caretaker.” The trial
court appointed the Department as the temporary managing conservator of the
children.
Following a full adversary hearing, the trial court signed a temporary order
on October 23, 2015. In the order, the trial court found as follows:
[T]here is sufficient evidence to satisfy a person of ordinary prudence
and caution that (1) there was a danger to the physical health or safety
of the child which was caused by an act or failure to act of the person
entitled to possession and for the child to remain in the home is
contrary to the welfare of the child; (2) the urgent need for protection
required the immediate removal of the child and makes efforts to
eliminate or prevent the child’s removal impossible or unreasonable;
and (3) notwithstanding reasonable efforts to eliminate the need for
the child’s removal and enable the child to return home, there is a
substantial risk of a continuing danger if the child is returned home.
1
See TEX. FAM. CODE ANN. § 262.104 (Vernon Supp. 2016)
5
The trial court further found there was “sufficient evidence to satisfy a
person of ordinary prudence and caution that there is a continuing danger to the
physical health or safety of the child and for the child to remain in the home is
contrary to the welfare of the child.” The trial court appointed the Department as
T.L.B.’s temporary managing conservator.
The Department prepared a family service plan and filed it with the trial
court on November 5, 2015. The plan set out several tasks and services for Mother
to complete before reunification with T.L.B. could occur. Specifically, Mother
was required to do the following: (1) attend all scheduled appointments and
provide copies of certificates to demonstrate attendance at the required services;
(2) participate in all court hearings; (3) “maintain housing for a minimum of six
consecutive months that is safe, stable, and free of environmental hazards” and
“provide [case] worker with a copy of the signed lease agreement”; (4) “submit to
random drug/alcohol testing” and “not test positive for any illegal drugs or any
drugs that were not prescribed to her”; (5) “complete a drug and alcohol
assessment/evaluation”; (6) “actively participate in domestic violence counseling,”
from which Mother “will be successfully discharged from counseling and provide
the [case] worker with a copy of the certificate of completion”; (7) complete a
psycho-social evaluation; (8) actively participate in individual therapy; (9) seek
and maintain full time employment and “provide the caseworker with monthly
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income statements to verify the legitimacy of the employment”; and
(10) participate in and complete at least eight weeks of parenting classes and
provide the caseworker with a certificate of completion. The timeframe for Mother
to complete each of these tasks and services was “11/10/2015 thru the duration of
the case.”
The service plan warned Mother:
THE PURPOSE [OF THE SERVICE PLAN] IS TO HELP YOU
PROVIDE YOUR CHILD WITH A SAFE ENVIRONMENT
WITHIN THE REASONABLE PERIOD SPECIFIED IN THE
PLAN. IF YOU ARE UNWILLING OR UNABLE TO PROVIDE
YOUR CHILD WITH A SAFE ENVIRONMENT, YOUR
PARENTAL AND CUSTODIAL DUTIES AND RIGHTS MAY BE
RESTRICTED OR TERMINATED OR YOUR CHILD MAY NOT
BE RETURNED TO YOU.
The trial court conducted a status hearing on November 10, 2015. Mother
and her counsel attended the hearing. That same day, the trial court signed a status
hearing order, which approved and incorporated the service plan by reference.
Specifically, the order provided: “[T]he plans of service for [Mother] filed with the
Court, and incorporated by reference as if the same were copied verbatim in this
order, is APPROVED and made an ORDER of this Court.” The trial court also
found that Mother had reviewed the service plan, understood the plan, and had
signed it.
Mother and her attorney attended a permanency hearing on May 19, 2016.
That same day, the trial court signed a “Permanency Hearing Order Before Final
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Hearing.” The trial court ordered, “The actions specified in each service plan . .
. on file as of the date of this order represent actions which this Court requires of
the Parent specified in the service plan[.]” The order also provided “that all
previous orders issued by this Court shall continue without modification.” The
order made clear that “the actions [required in the service plan must] be performed
in order for the parent to regain custody of the child who [is] presently in the
temporary managing conservatorship of the Department.” At the bottom of the
order, the trial court set trial for September 1, 2016.
The case was tried to the bench on September 1, 2016. The Department
sought to terminate the parent-child relationship between Mother and T.L.B.2
At trial, the Department offered the testimony of the Department caseworker
R. Nelson. She testified that two-year old T.L.B. was “fine” and healthy when he
came into the Department’s care; however, the Department’s “concern was that he
[was] exposed to domestic violence and the lack of cooperation with Mom and her
girlfriend [Tiffany] at the time.” Nelson stated that T.L.B. had been “removed
from the home” because of domestic violence. She testified that the referral to the
Department had “involved [Mother] and her boyfriend [sic] at the time [Tiffany] .
. . . [T]he referral indicated that Tiffany [] punched [Mother] in the face while
2
The parental rights of T.L.B.’s father were also terminated following the trial.
However, the father did not appear at trial, and he does not appeal the termination
of his parental rights.
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holding [T.L.B.].” Nelson testified that the referral had indicated that, during the
altercation, T.L.B. was “hit in the back of the head with a picture frame.” During
questioning, Nelson agreed that, “[w]hen the case came in, several officers testified
at the show cause [hearing] about the domestic violence between the mother and
Tiffany.” She confirmed that there had been “at least” ten referrals for domestic
violence, but Mother had “refused to press charges” against Tiffany. Nelson also
confirmed that Tiffany had “a violent criminal history.” Nelson agreed that, while
the case was pending, Tiffany had threatened Nelson, Nelson’s children, and the
Department’s attorney.
Nelson agreed that one of the reasons that the Department was requesting
termination of the parent-child relationship was Mother’s continued drug use.
Nelson confirmed that Mother had positive drug tests while the case was pending.
She stated that Mother had testified positive for marijuana and cocaine use. The
Department offered into evidence lab reports, showing that the Mother had tested
positive for marijuana in September 2015, for cannabinoids in November 2015,
and for cocaine in February 2016. Nelson confirmed that Mother was pregnant
with another child when she tested positive for marijuana, cocaine, and
cannabinoids. Mother gave birth to a daughter in April 2016.
Nelson also testified that Mother had not completed the tasks and services
required in the family service plan, even though the Department had made referrals
9
for the services. Nelson stated that “[Mother] could have already completed the
services on this service plan,” but she indicated that Mother was “just now”
engaging in services.
Nelson testified that Mother claimed to be engaging in many of the required
services, but Nelson confirmed that the service plan required Mother to provide
verification of completion of the services. Nelson stated that Mother had provided
verification of completion of only one service: the psychosocial evaluation.
Nelson stated that the psychosocial evaluation had resulted in Mother being
referred for substance abuse counseling and domestic violence classes, which
Mother also had not completed.
On cross-examination, Nelson acknowledged that Mother had reported to
her that she was working two jobs. However, Nelson testified that Mother had not
provided her with proof of employment as required by the service plan. Nelson
also acknowledged that Mother had reported to her that she had rented her own
apartment, which “had a place” for T.L.B., but Nelson further stated that Mother’s
claim of renting a suitable apartment also had not been confirmed. Nelson also
acknowledged that Mother’s last drug test was negative.
In addition, Nelson testified regarding the family structure in this case. She
stated that T.L.B.’s father, L.J., is also the father of Tiffany, Mother’s girlfriend.
Thus, Tiffany is T.L.B.’s sibling. Nelson indicated that it was her understanding
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that Mother and L.J. had sex to “make [T.L.B.]” to provide a child for Mother and
Tiffany to parent as a couple. Nelson also confirmed that L.J. was married and a
registered sex offender.
On direct examination, Nelson agreed that, when he came into the
Department’s care, “[T.L.B.] was evaluated by Early Childhood Intervention due
to some pretty severe delays.” The evaluation showed that T.L.B. was
developmentally delayed, and the evaluator, who examined T.L.B., was concerned
that T.L.B. “was severely neglected.” To address the delays, ear tubes were placed
in T.L.B.’s ears “because he wasn’t hearing properly.” T.L.B. also received speech
therapy, which he continued to receive at the time of trial. Nelson stated that there
has been “a drastic improvement in [T.L.B.’s] development” since being in the
Department’s care.
In addition, Nelson testified that T.L.B. is currently in a foster home where
T.L.B. is doing “very well” and has bonded with his foster family. T.L.B.’s
younger sibling, the baby Mother gave birth to in April 2016, is also placed in the
foster home. The foster parents have committed to adopting both children. Nelson
stated that T.L.B. identifies his foster parents as his mother and father. However,
she also agreed that Mother and T.L.B. respond well to each other and that he still
thinks of her as his mother. Nelson also stated that she had witnessed Mother’s
visits with T.L.B. and that they are “appropriate.”
11
The Department also offered the testimony of T.L.B.’s foster mother. She
stated that she has been caring for T.L.B. for three-and-one-half months. She
confirmed that T.L.B. is growing, healthy, and happy. She also confirmed that she
and T.L.B. are bonded and that she wishes to adopt him. She testified that she
provides T.L.B. a safe and stable home where all of his needs are being met. The
foster mother also agreed that T.L.B.’s behavior has improved since he had been
living in her home and that his delays in development have improved
“tremendously.”
On cross-examination, the foster mother stated that she had observed the
interactions between Mother and T.L.B. during the pick-up and drop-off times of
her visitations with him. She acknowledged that the interactions between them
seemed appropriate and that they seemed to love one another.
Mother also testified at trial. She stated that she works at a hair salon and
has a part-time job at a fast-food restaurant. Mother testified that, since she has
been working, she had provided support to T.L.B. in the form of clothes, food, and
toys. Mother also testified that she had signed a lease for an apartment in June
2016. She offered pictures of the apartment and testified that T.L.B. would have
his own room.
Mother indicated that she was aware of the programs she was required to
attend under the family service plan. She stated that she was “halfway through”
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“the substance abuse and alcohol assessment” and had started the “one on one
counseling.” She also stated that she was “almost done” with a domestic violence
program and had completed an eight-week parenting class.
When asked whether T.L.B. had ever been “injured in an episode of
domestic violence,” Mother responded “no.” She also indicated that she had never
filed domestic-abuse charges against Tiffany, stating that there had never been “no
violence.” On cross-examination, Mother acknowledged that, at a “show cause
hearing,” “several officers” had testified that there had been domestic-violence
calls made involving her and Tiffany. Mother averred that the officers’ testimony
was “hearsay” and stated that she did not make the calls.
At the conclusion of trial, the court granted the Department’s request for
termination of the parent-child relationship between Mother and T.L.B. On
September 22, 2016, the trial court signed a judgment terminating Mother’s
parental rights, finding that termination was in T.L.B.’s best interest and that
Mother had engaged in the predicate acts listed in Family Code Subsections
161.001(b)(1)(D),(E), and (O). The trial court also appointed the Department to be
T.L.B.’s sole managing conservator.
Mother now appeals the trial court’s judgment, challenging the termination
of her parental rights. She identifies two global issues, with a number of sub-
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issues, challenging the legal and factual sufficiency of the evidence to support the
trial court’s judgment.
Sufficiency of the Evidence
In two global issues, with a number of sub-issues, Mother claims that the
evidence was not legally or factually sufficient to support the trial court’s findings
that she had committed a predicate act necessary for termination or to support the
trial court’s determination that termination was in T.L.B.’s best interest.
A. Standard of Review
Termination of parental rights requires proof by clear and convincing
evidence. See TEX. FAM. CODE ANN. § 161.001(b) (Vernon Supp. 2016). The
Family Code defines clear and convincing evidence as “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 (Vernon 2014); see In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Here,
the Department was required to establish, by clear and convincing evidence, that
Mother’s actions satisfied one of the predicate grounds listed in Family Code
section 161.001(b)(1) and that termination was in the children’s best interest. See
TEX. FAM. CODE ANN. § 161.001(b)(1), (2).
When determining legal sufficiency, we review all the evidence in the light
most favorable to the trial court’s finding “to determine whether a reasonable trier
14
of fact could have formed a firm belief or conviction that its finding was true.”
J.F.C., 96 S.W.3d at 266. To give appropriate deference to the fact finder’s
conclusions, we must assume that the fact finder resolved disputed facts in favor of
its finding if a reasonable fact finder could do so. Id. We disregard all evidence
that a reasonable fact finder could have disbelieved or found to have been not
credible. Id. This does not mean that we must disregard all evidence that does not
support the finding. Id. The disregard of undisputed facts that do not support the
finding could skew the analysis of whether there is clear and convincing evidence.
Id. Therefore, in conducting a legal-sufficiency review in a parental-termination
case, we must consider all of the evidence, not only that which favors the verdict.
See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).
In determining a factual-sufficiency point, the higher burden of proof in
termination cases also alters the appellate standard of review. In re C.H., 89
S.W.3d 17, 25–26 (Tex. 2002). “[A] finding that must be based on clear and
convincing evidence cannot be viewed on appeal the same as one that may be
sustained on a mere preponderance.” Id. at 25. In considering whether evidence
rises to the level of being clear and convincing, we must consider whether the
evidence is sufficient to reasonably form in the mind of the fact finder a firm belief
or conviction as to the truth of the allegation sought to be established. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
15
have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at
266. “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 fact
finder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” Id.
We give due deference to the fact finder’s findings, and we cannot substitute
our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and
demeanor of witnesses. Id. at 109.
B. Predicate Finding under Subsection 161.001(1)(O)
Mother asserts that the evidence was legally and factually insufficient to
support the trial court’s predicate finding that termination was warranted under
Family Code subsection 161.001(1)(O). Family Code subsection 161.001(b)(1)(O)
provides that the court may order termination of the parent-child relationship if the
court finds by clear and convincing evidence
that the parent has failed to comply with the provisions of a court
order that specifically established the actions necessary for the parent
to obtain the return of the child who has been in the permanent or
temporary managing conservatorship of the Department of Family and
Protective Services for not less than nine months as a result of the
child’s removal from the parent under [Family Code] Chapter 262 for
the abuse or neglect of the child.
16
TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Thus, pursuant to Subsection (O), the
Department must prove that (1) it has been the child’s temporary or permanent
managing conservator for at least nine months; (2) it took custody of the child as a
result of a removal from the parent under Chapter 262 for abuse or neglect; (3) a
court issued an order establishing the actions necessary for the parent to obtain the
return of the child; and (4) the parent did not comply with the court order. See id.
Here, Mother asserts that the evidence was not legally or factually sufficient (1) to
show that T.L.B. was removed from her under Chapter 262 for abuse or neglect or
(2) to show that there was a court order specifically establishing the actions
necessary for her to take to obtain the return of T.L.B.
1. Removal under Chapter 262 for abuse or neglect
We interpret the words “abuse” and “neglect” broadly to necessarily include
the risks or threats of the environment in which the child is placed. In re J.R.W.,
No. 01–14–00442–CV, 2014 WL 6792036, at *5 (Tex. App.—Houston [1st Dist.]
Nov. 26, 2014, no pet.) (mem. op.) (citing In re E.C.R., 402 S.W.3d 239, 246, 248
(Tex. 2013)). In E.C.R., the supreme court considered whether the evidence was
sufficient to support the trial court’s determination that the children involved had
been removed because of abuse or neglect. Id. at 246. In so doing, the court
considered an affidavit that the Department had filed in support of its petition, in
which the affiant noted allegations that the child’s sibling had been physically
17
abused. Id. at 248. The supreme court noted that, “[t]his affidavit, even if not
evidence for all purposes, shows what the trial court relied on in determining
whether removal was justified.” Id. The trial court found “sufficient evidence to
satisfy a person of ordinary prudence and caution that [the child] faced an
immediate danger to his physical health or safety, that the urgent need to protect
him required his immediate removal, and that he faced a substantial risk of a
continuing danger if he were returned home [.]” Id. The supreme court then held
that the affidavit and the trial court’s unchallenged findings in the temporary order,
which authorized the child’s removal, were sufficient evidence to establish, as a
matter of law, that the child had been removed under chapter 262 for abuse or
neglect.3 Id. at 249.
3
In E.C.R., the supreme court cited a number of decisions in which courts have held
that documentary evidence, including caseworker affidavits, offered in support of
the Department’s petition and the trial court’s temporary orders for removal were
sufficient evidence to show that the child had been removed for abuse or neglect.
See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (citing D.F. v. Tex. Dep’t of
Family & Protective Servs., 393 S.W.3d 821, 830–31 (Tex. App.—El Paso 2012,
no pet.) (noting that trial court’s finding of immediate danger to child’s physical
health or safety or that children were neglected or abused supported finding of
neglect); In re S.N., 287 S.W.3d 183, 190 (Tex. App.—Houston [14th Dist.] 2009,
no pet.) (holding that affidavit, family service plan, and temporary orders showing
danger to physical health or safety and substantial risk of continuing danger
supported finding that children were removed under Chapter 262 for neglect); In
re J.S.G., No. 14–08–00754–CV, 2009 WL 1311986, at *6–7 (Tex. App.—
Houston [14th Dist.] May 7, 2009, no pet.) (mem. op.) (relying on caseworker’s
affidavit in support of Department’s removal request, as well as trial court’s
temporary orders concluding that children faced danger to their physical health or
safety and substantial risk of continuing danger if returned home, to conclude that
evidence established that children were removed “as a result of neglect specific to
18
Here, the Department’s original petition, seeking emergency temporary
orders, conservatorship, and termination of parental rights, filed on September 14,
2015, was supported by caseworker Duncan’s affidavit. In the affidavit, Duncan
testified regarding allegations of domestic abuse between Tiffany and Mother that
had directly affected T.L.B. Duncan testified that in April 2015 the Department
received a report that Tiffany had punched Mother while Mother was holding
T.L.B. and that Tiffany had “assaulted [Mother] by throwing a picture frame at her
and using pepper spray on her.” The picture frame had reportedly hit T.L.B. in the
back of the head, and T.L.B. had begun “to wheeze when [Tiffany] sprayed the
pepper spray.” She stated that in June 2015 the Department learned of allegations
that Tiffany, who was T.L.B.’s primary caregiver, was “using drugs.”
Duncan further testified that Tiffany had not been cooperative with CPS’s
investigation into the allegations. In August 2015, Tiffany refused to allow
Duncan to see T.L.B. The following month, the Department could not locate
Tiffany and T.L.B. The Department learned that Tiffany had been evicted from
her apartment for domestic abuse issues.
During the investigation, CPS learned that Mother and Tiffany had a history
with CPS involving allegations of past neglectful supervision of T.L.B. and for
them by” mother); In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied) (considering affidavit in support of removal and trial
court’s temporary orders finding continuing danger to physical health or safety of
child if returned to parent as evidence that child was removed because of neglect)).
19
drug use. Duncan also determined that Mother had her parental rights terminated
to another child in 2012 following reports that Mother had “placed [the child] at
risk of harm due to inadequate supervision, chronic domestic violence, drug use
and inadequate medical attention.”
At the end of her affidavit, Duncan averred that the Department should be
named T.L.B.’s temporary managing conservator “due to the mother’s prior
[Department] history, drug history, extensive domestic violence history, and her
lack of cooperation with [the Department].” Duncan further stated, “At the time of
removal[,] the child was being cared for by [Tiffany]. [Tiffany] is not a parent of
this child. She is not an appropriate caregiver, due to her domestic violence history
with the mother, drug history, and history of not cooperating with [the
Department].”
In the order for emergency protection signed by the trial court on September
14, 2015, the trial court indicated that it had “examined and reviewed” Duncan’s
affidavit. The trial court found that T.L.B. had been removed pursuant to Family
Code section 262.104, which authorizes possession without a court order if
circumstances would lead a person of ordinary prudence and caution to believe that
the child faced “an immediate danger to [his] physical health or safety.” See TEX.
FAM. CODE ANN. § 262.104 (Vernon Supp. 2016). The court also found that T.L.B.
faced a continuing danger to his physical health or safety if returned to “the parent”
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or “caretaker.” The trial court appointed the Department as the temporary
managing conservator of the children.
Following a full adversary hearing, the trial court signed a temporary order
on October 23, 2015. In the order, the trial court found as follows:
[T]here is sufficient evidence to satisfy a person of ordinary prudence
and caution that (1) there was a danger to the physical health or safety
of the child which was caused by an act or failure to act of the person
entitled to possession and for the child to remain in the home is
contrary to the welfare of the child; (2) the urgent need for protection
required the immediate removal of the child and makes efforts to
eliminate or prevent the child’s removal impossible or unreasonable;
and (3) notwithstanding reasonable efforts to eliminate the need for
the child’s removal and enable the child to return home, there is a
substantial risk of a continuing danger if the child is returned home.
The trial court further found there was “sufficient evidence to satisfy a person of
ordinary prudence and caution that there is a continuing danger to the physical
health or safety of the child and for the child to remain in the home is contrary to
the welfare of the child.”
At trial, caseworker Nelson testified that, although T.L.B. had been “fine”
and “healthy” when removed from Mother’s custody, T.L.B. had been “removed
from the home” because of domestic violence. She testified that the referral to the
Department had “involved [Mother] and her boyfriend [sic] at the time
[Tiffany] . . . . [T]he referral indicated that Tiffany [] punched [Mother] in the face
while holding [T.L.B.].” Nelson testified that the referral had also indicated that,
during the altercation, T.L.B. was “hit in the back of the head with a picture
21
frame.” During questioning, Nelson agreed that, “[w]hen the case came in, several
officers testified at the show cause [hearing] about the domestic violence between
the mother and Tiffany.” She confirmed that there had been “at least” ten referrals
for domestic violence, but Mother had “refused to press charges” against Tiffany,
who, Duncan’s affidavit had shown, was T.L.B.’s primary caregiver.
Duncan’s affidavit offered in support of the Department’s original petition,
the unchallenged findings by the trial court in its temporary orders for emergency
protection and for continued removal of T.L.B., and Nelson’s trial testimony is the
type of evidence relied on by the supreme court in E.C.R. to conclude that “E.C.R.
was removed from [her mother] under chapter 262 for abuse or neglect.” E.C.R.,
402 S.W.3d at 248; see also In re J.R.W., 2014 WL 6792036, at *6 (citing In re
R.M.S., No. 01–13–00331–CV, 2013 WL 5637703, at *3–4 (Tex. App.—Houston
[1st Dist.] Oct. 11, 2013, no pet.) (mem. op.) (concluding caseworker’s affidavit
and trial court’s temporary order removing child from mother’s home was type of
evidence on which E.C.R. court relied in determining that evidence was sufficient
to support trial court’s finding that child had been removed for abuse or neglect)).
As the E.C.R. court made clear, “‘abuse or neglect’ of the child necessarily
includes the risks or threats of the environment in which the child is placed.”
E.C.R., 402 S.W.3d at 248. Thus, we conclude that Duncan’s affidavit, the
unchallenged findings in the trial court’s temporary orders, and Nelson’s trial
22
testimony establish that T.L.B. was removed from Mother under chapter 262 for
abuse or neglect. See id. at 248.
2. Court order specifying necessary actions
Mother also intimates that the evidence was legally and factually insufficient
to show that there was a court order specifically establishing the actions necessary
for her to take to obtain the return of T.L.B. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O). Mother first asserts that the Department did not prove that the
family service plan was a court order. We disagree.
At trial, the status hearing order signed by the trial court on November 10,
2015 was admitted into evidence. In the order, the trial court expressly ordered
that “the plans of service for [Mother] filed with the Court [on November 5, 2015],
and incorporated by reference as if the same were copied verbatim in this order, is
APPROVED and made an ORDER of this Court.” Thus, the evidence showed that
the family service plan was an order of the trial court.
Mother also asserts that the Department did not show that she had received a
copy of the service plan and, thus, she was not aware of the plan’s requirements.
She points out that the copy of the service plan admitted at trial as an exhibit did
not contain her signature but contained only the signature of the Department’s
representative. However, in the status-hearing order, admitted into evidence, the
trial court expressly found that Mother had signed the service plan. The trial court
23
also found that Mother had reviewed the service plan and understood it. The trial
court further found that
unless she is willing and able to provide the child with a safe
environment, even with the assistance of a service plan, within the
reasonable period of time specified in the plan, her parental and
custodial duties and rights may be subject to restriction or to
termination or the child may not be returned to her.
In addition, while the evidence showed that Mother had not completed the
tasks and services required in the court-ordered service plan, evidence was
presented at trial, including Mother’s own testimony, indicating that she had
completed one of the required services, and she had partially completed several
other services. In addition, the evidence showed that Mother had taken a number
of the drug tests required by the service plan. A reasonable factfinder could have
inferred from Mother’s partial compliance with the service plan that she was aware
of its existence and its content. See In re K.N.D., No. 01–12–00584–CV, 2014 WL
3970642, at *7 (Tex. App.—Houston [1st Dist.] Aug. 14, 2014, no pet.) (mem. op.
on reh’g).
Finally, Mother contends that the evidence did not show that the court-
ordered service plan was sufficiently specific for her to comply with its terms
because it did not contain a date by which she had to complete all the plan’s
requirements. The record does not support Mother’s claim.
24
The service plan had a column titled “Task/Service including timeframes.”
In the column, the task or service Mother was required to complete was described.
Before the description of each task was the following: “11/10/2015 thru duration of
the case,” indicating that the timeframe for Mother to complete the task or service
was during the pendency of the case.
The record shows that the trial court conducted a permanency hearing on
May 19, 2016, which was attended by Mother and her attorney. Following the
hearing, the trial court signed an order setting trial for September 1, 2016. 4 Thus,
at that point, Mother knew that the “duration of the case” would end on September
1, 2016 and that she would need to have her services completed by that time.
Reviewing all of the evidence in the light most favorable to the termination
findings, we conclude that a reasonable fact finder could have formed a firm belief
or conviction as to the truth of the termination findings under subsection (O). See
J.F.C., 96 S.W.3d at 266. In light of the entire record, the disputed evidence that a
reasonable fact finder could not have credited in favor of the termination finding
under subsection (O) is not so significant that a fact finder could not reasonably
4
The May 19, 2016 permanency order was not admitted into evidence; however,
“in a bench trial, we may ‘presume the trial court took judicial notice of its record
without any request being made and without any announcement that it has done
so.’” In re K.N.D., No. 01–12–00584–CV, 2014 WL 3970642, at *7 (Tex. App.—
Houston [1st Dist.] Aug. 14, 2014, no pet.) (mem. op. on reh’g) (quoting In re
K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.] 2013, pet. denied)).
25
have formed a firm belief or conviction as to the truth of the termination finding
under that subsection. See H.R.M., 209 S.W.3d at 108. We hold that the evidence
is legally and factually sufficient to support the trial court’s predicate finding under
Subsection (O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(O).
We overrule Mother’s sub-issues challenging the legal and factual
sufficiency of the trial court’s Subsection (O) finding. 5
C. Best-Interest Finding
Mother also challenges the legal and factual sufficiency of the evidence to
support the trial court’s finding that termination of the parent-child relationship
was in T.L.B.’s best interest.
1. Legal Standards
There is a strong presumption that the best interest of the child will be
served by preserving the parent–child relationship. See In re R.R., 209 S.W.3d
112, 116 (Tex. 2006). Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. TEX. FAM. CODE
ANN. § 263.307(a) (Vernon Supp. 2016).
5
Because only one predicate ground is needed to support a termination order, we
need not address Mother’s other sub-issues, challenging the legal and factual
sufficiency of the evidence to support the trial court’s findings under Subsections
161.001(b)(1)(D) and (E). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
(recognizing, “Only one predicate finding” under section 161.001(b)(1) “is
necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest.”).
26
The Supreme Court of Texas has identified factors that courts may consider
when determining the best interest of the child, including: (1) the desires of the
child; (2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individual seeking custody; (5) the programs available to
assist these individuals to promote the best interest of the child; (6) the plans for
the child by these individuals or by the agency seeking custody; (7) the stability of
the home or proposed placement; (8) the acts or omissions of the parent that may
indicate that the existing parent–child relationship is not a proper one; and (9) any
excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). This is not an exhaustive list, and a court need not have
evidence on every element listed in order to make a valid finding as to the child’s
best interest. C.H., 89 S.W.3d at 27. While no one factor is controlling, analysis
of a single factor may be adequate in a particular factual situation to support a
finding that termination is in the best interest of the child. In re A.P., 184 S.W.3d
410, 414 (Tex. App.—Dallas 2006, no pet.). In addition, the Texas Family Code
sets out factors to be considered in evaluating a parent’s willingness and ability to
provide the child with a safe environment. See TEX. FAM. CODE ANN.
§ 263.307(b).
27
The evidence supporting the statutory predicate grounds for termination may
also be used to support a finding that the best interest of the child warrants
termination of the parent–child relationship. C.H., 89 S.W.3d at 28; In re H.D.,
No. 01–12–00007–CV, 2013 WL 1928799, at *13 (Tex. App.—Houston [1st Dist.]
May 9, 2013, no pet.) (mem. op.). Furthermore, in conducting the best-interest
analysis, a court may consider not only direct evidence but also may consider
circumstantial evidence, subjective factors, and the totality of the evidence. H.D.,
2013 WL 1928799, at *13.
2. Analysis
Multiple factors support the trial court’s determination that termination of
Mother’s parental rights was in T.L.B.’s best interest. The trial court heard
evidence that Mother engaged in illegal drug use while this case was pending and
while she was pregnant with another child. Mother had three separate positive
drug tests, testing positive for marijuana, cocaine, and cannabinoids. In addition,
the evidence also showed that she walked out of one drug screening appointment
without being tested.
Parental drug abuse reflects poor judgment and may be a factor to be
considered in determining a child’s best interest. In re M.R., 243 S.W.3d 807, 820
(Tex. App.—Fort Worth 2007, no pet.); see also TEX. FAM. CODE ANN.
§ 263.307(b)(8) (stating courts may consider whether there is history of substance
28
abuse by child’s family or others who have access to child’s home). Evidence
relating to Mother’s involvement with illegal drugs supported the trial court’s best-
interest finding under the following Holley factors: T.L.B.’s emotional and
physical needs now and in the future; the emotional and physical danger to T.L.B.
now and in the future; and acts or omissions indicating that the existing parent-
child relationship is not a proper one. See Holley, 544 S.W.2d at 371–72 (listed
above as Holley factors two, three, and eight). A parent’s drug use has also been
found to be a condition that can indicate instability in the home environment. In re
J.M., No. 01–14–00826–CV, 2015 WL 1020316, at *7 (Tex. App.—Houston [1st
Dist.] Mar. 5, 2015, no pet.) (mem. op.).
In addition, caseworker Nelson testified at trial that T.L.B. had come into the
Department’s care because of domestic abuse between Mother and Tiffany.
Nelson explained that there had been reports that Tiffany had hit Mother while she
was holding T.L.B. and that T.L.B. had been hit in the head with a picture frame.
There was also a report that T.L.B. had been exposed to pepper spray during an
altercation between Mother and Tiffany that caused T.L.B. to wheeze. During
trial, Mother acknowledged that there had been numerous reports that Tiffany had
perpetrated acts of domestic violence against her, but she denied that there had
ever been any violence between them.
29
Evidence of domestic violence in the home is supportive of a trial court’s
best-interest finding under the third Holley factor: the emotional and physical
danger to the child now and in the future. See Holley, 544 S.W.2d at 371–72; see
also TEX. FAM. CODE ANN. § 263.307(b)(12)(E) (providing that courts may
consider whether parent has adequate skills to protect child from repeated exposure
to violence although violence may not be directed at the child); In re J.I.T.P., 99
S.W.3d 841, 846 (Tex. App.—Houston [14th Dist. ] 2003, no pet.) (stating
domestic violence, even when child is not intended victim, supports finding that
termination is in child’s best interest). “It is well established that, in a bench trial,
the judge as the trier of fact weighs the evidence, assesses the credibility of
witnesses and resolves conflicts and inconsistencies.” In re D.D.D.K., No. 07–09–
0101–CV, 2009 WL 4348760, at *6 (Tex. App.–Amarillo Dec. 1, 2009, no pet.)
(mem. op.). Here, the trial court was free to disbelieve Mother testimony,
including her testimony that there had never been acts of violence committed
against her by Tiffany. In addition, during her testimony Nelson agreed that
Tiffany has “a pretty violent criminal history,” and she testified that, while the case
was pending, Tiffany had threatened her, her children, and the Department’s
attorney.
In addition, as discussed, Mother failed to complete all but one of the tasks
and services required in her service plan. Among the required services that Mother
30
failed to complete were substance-abuse counseling and a domestic-violence
program. The evidence showing that Mother failed to complete the required
services supports the trial court’s best-interest finding. See TEX. FAM. CODE ANN.
§ 263.307(b)(11) (stating courts may consider the willingness and ability of child’s
family to effect positive environmental and personal changes within reasonable
period of time). A factfinder may infer from a parent’s failure to take the initiative
to complete the services required to regain possession of her children that she does
not have the ability to motivate herself to seek out available resources needed now
or in the future. See J.M., 2015 WL 1020316, at *7; see also Holley, 544 S.W.2d
at 371–72 (listing parental abilities of individual seeking custody as best-interest
factor).
Given the evidence in the record, the trial court could have inferred that
Mother is at risk for continuing to engage in illegal drug use and to subjecting
herself and T.L.B. to domestic violence. In re E.D., 419 S.W.3d 615, 620 (Tex.
App.—San Antonio 2013, pet. denied) (recognizing that trial court may measure a
parent’s future conduct by his past conduct). Such inference is relevant not only to
the stability of Mother’s home but also to the emotional and physical danger in
which T.L.B. could be placed now and in the future. See Holley, 544 S.W.2d at
371–72 (factors three and seven).
31
The Department also presented evidence supportive of the best-interest
finding under the following factors: the emotional and physical needs of the
children now and in the future, the parental abilities of those seeking custody, and
the plans for the children by those seeking custody. See Holley, 544 S.W.2d at
371–72 (factors two, four, six); see also TEX. FAM. CODE ANN. § 263.307(b)(12)
(providing that court may consider whether child’s family demonstrates adequate
parenting skills). The evidence indicated that T.L.B. is currently placed in a foster
home with his sibling. The evidence also showed that the foster home is safe,
stable, and meets T.L.B.’s needs. See In re Z.C., 280 S.W.3d 470, 476 (Tex.
App.—Fort Worth 2009, pet. denied) (stating that stability and permanence are
important to upbringing of a child and affirming finding that termination was in
child’s best interest when child was thriving in foster care). The evidence showed
that T.L.B. is bonded with his foster parents, who wish to adopt him and his
younger sibling. See In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied) (considering child’s bond with foster family in reviewing
best-interest determination). The evidence further showed that, when he came into
foster care, T.L.B. was developmentally delayed. However, after he received ear
tubes to help with his hearing and speech therapy, his developmental delays greatly
improved. See Holley, 544 S.W.2d at 371–72 (factor five: the programs available
to assist these individuals to promote the best interest of the child).
32
We also note that T.L.B. was only two years old at the time of trial. As
such, the Holley factor regarding the desires of the child is neutral in this case. See
Holley, 544 S.W.2d at 371–72 (factor one).
Mother points out that evidence was presented weighing against the best-
interest finding. She points to evidence indicating that she was working two jobs
at the time of trial and that she had signed a lease for an apartment that would
provide T.L.B. with his own bedroom. In addition, she highlights the evidence that
she has brought food, clothing, and toys to her visits with T.L.B. However, the
evidence also showed that Mother had not provided proof of her employment to
the Department, and Nelson testified that she had not visited Mother’s apartment to
confirm the housing. Nelson also testified that Mother had brought items for
T.L.B. only to her last two visits with him.
Mother also relied on evidence showing that she and T.L.B. were bonded,
that they loved one another, that he still considered her to be his Mother, and that
she behaved appropriately during the visits. Mother also cites Nelson’s testimony
that T.L.B. was “fine” and “healthy” when he came into the Department’s care.
In addition, Mother points to evidence indicating that she had partially
completed some of the services required in the service plan. And she points out
that her last drug test was negative.
33
Although there is evidence that weighs against the best-interest finding,
evidence cannot be read in isolation; it must be read in the context of the entire
record. See In the Interest of K.C.F., No. 01–13–01078–CV, 2014 WL 2538624, at
*16 (Tex. App.–Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.). As
discussed, evidence was presented indicating that Mother cannot provide a stable
home for T.L.B. due to her past drug use and the reported domestic violence
perpetrated by Tiffany. Evidence was also presented showing that Mother did not
take the necessary steps to remedy the instability of her home while this case was
pending, even though she was offered services to assist her. As the fact finder, the
trial court, after assessing the credibility of the witnesses and weighing the
evidence, could have reasonably inferred that Mother would continue her past
behaviors, which have the potential to compromise T.L.B.’s emotional and
physical well-being.
After viewing all of the evidence in the light most favorable to the best-
interest finding, we conclude that the evidence was sufficiently clear and
convincing that a reasonable factfinder could have formed a firm belief or
conviction that termination of the parent-child relationship between Mother and
T.L.B. was in the child’s best interest. J.F.C., 96 S.W.3d at 266. We further
conclude that, viewed in light of the entire record, any disputed evidence could
have been reconciled in favor of the trial court’s finding that termination of the
34
parent-child relationship between Mother and T.L.B. was in his best interest or was
not so significant that the trial court could not reasonably have formed a firm belief
or conviction that termination was in T.L.B.’s best interest. See H.R.M., 209
S.W.3d at 108. Therefore, after considering the relevant factors under the
appropriate standards of review, we hold the evidence is legally and factually
sufficient to support the trial court’s finding that termination of the parent-child
relationship was in T.L.B.’s best interest. See TEX. FAM. CODE ANN.
§ 161.001(b)(2).
We overrule Mother’s sub-issues challenging the legal and factual
sufficiency of the evidence to support the trial court’s best-interest finding.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Massengale.
35