in the Interest of B.A.B., K.R.D., J.L.D. and I.L.D., Children

Opinion issued September 29, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00360-CV
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IN THE INTEREST OF B.A.B., K.R.D., J.L.D., AND I.L.D., Children
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2015-02833J
MEMORANDUM OPINION
After a bench trial, the trial court terminated the parental rights of appellant
and biological mother K.Y.J. to her four minor children. On appeal, she challenges
the legal and factual sufficiency of the trial court’s finding that termination was in
the children’s best interest and of its findings of some—but not all—of the
predicate acts. We affirm.
Background
K.Y.J. is the biological mother of four children: B.A.B., who was born in
2009; K.R.D., who was born in 2013; J.L.D., who was born in 2014; and I.L.D.,
who was born in 2015. The Texas Department of Protective and Family Services
first took possession of the children in early May 2015 when the mother was
arrested for child endangerment, along with the father of three of the children. The
father also was charged with burglary of a motor vehicle. At the time of the arrests,
the children—then aged six years, two years, one year, and two months—were
found in a car, but only the baby was restrained properly in a child-safety seat. All
of the children were dirty and wearing diapers.
While this case was pending in the trial court, the mother completed some of
the actions required by a family plan of service. For example, she moved into an
apartment with her mother in Victoria, Texas, and she got a job at a thrift shop. She
attended court hearings, visited her children, maintained communication with the
caseworker, and participated in individual therapy. But she did not complete the
recommended actions from her psychological evaluation, nor did she complete a
substance-abuse treatment program. She tested positive for cocaine based on hair
follicle samples taken in May 2015 and again the following December, when she
was pregnant with her fifth child. In addition, the mother pleaded guilty to the
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state-jail felony of endangering a child, receiving three years’ deferred adjudication
pursuant to a plea bargain.
The children were placed together in a foster home. They bonded to their
caregiver, who wished to adopt them. The oldest child became toilet trained,
received dental care for his abscessed teeth, and was enrolled in school after being
absent for four months while in his mother’s care. His younger sister’s speech
delay improved with therapy, and his younger brother’s eczema improved with a
restricted diet.
At trial, the caseworker testified that a psychological evaluation identified
the mother’s drug use as a cause of her failure to protect her children. She stated
that deficits in the mother’s memory, judgment, and cognitive functioning
suggested that she would be neglectful as a parent. The volunteer advocate serving
as guardian ad litem testified that he was concerned about the father’s lengthy
criminal history, which included domestic assault against the mother, as well as the
mother’s statement to him that she intended “to allow the father back in their lives”
upon his release from prison.
The trial court terminated the parental rights of the mother, finding that she
knowingly placed or allowed the children to remain in conditions or surroundings
which endangered their physical or emotional well-being, see TEX. FAM. CODE
§ 161.001(b)(1)(D); engaged in conduct or knowingly placed the children with
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people who engaged in conduct which endangered their physical or emotional
well-being, see id. § 161.001(b)(1)(E); was placed on deferred adjudication
community supervision for endangering a child in violation of Texas Penal Code
section 22.04, see id. § 161.001(b)(1)(L); failed to comply with a court order that
specifically established the actions required for her to obtain the return of the
children who had been in the conservatorship of the Department since their
removal for abuse or neglect, see id. § 161.001(b)(1)(O); and used a controlled
substance in a manner that endangered the health or safety of the children and
failed to complete a court-ordered substance abuse treatment program or continued
to abuse a controlled substance after completion of a court-ordered substance abuse
treatment program, see id. § 161.001(b)(1)(P). The court also found that
termination of the mother’s parental rights was in the best interest of the children.
See id. § 161.001(b)(2).
The mother appealed.
Analysis
In proceedings to terminate the parent-child relationship, the Department
must establish by clear-and-convincing evidence that one or more of the acts or
omissions listed in Family Code section 161.001(b)(1) occurred and that
termination is in the best interest of the child. TEX. FAM. CODE § 161.001(b). Both
elements must be established, and termination may not be based solely on the best
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interest of the child as determined by the trier of fact. Tex. Dep’t. of Human Servs.
v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
I. Predicate acts
“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.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In this
appeal, the mother challenges the legal and factual sufficiency of the evidence to
the support the predicate acts of endangerment and failure to comply with a court
order. See TEX. FAM. CODE §§ 161.001(b)(1)(D), (E), (O). But she concedes that
the evidence is legally and factually sufficient to support the trial court’s findings
that she was placed on deferred adjudication community supervision for the state
jail felony of endangering a child, see id. § 161.001(b)(1)(L), and that she used a
controlled substance in a manner that endangered the health or safety of the
children and failed to complete a court-ordered substance abuse treatment program,
see id. § 161.001(b)(1)(P). Because the mother concedes that at least one predicate
finding is supported by legally and factually sufficient evidence, we do not need to
address her challenges to the sufficiency of the evidence to support the other
predicate findings. See TEX. R. APP. P. 47.1.
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II. Best interest of the children
Protection of the best interests of the children is the primary focus of the
termination proceeding in the trial court and our appellate review. See A.V., 113
S.W.3d at 361. A parent’s right to the care, custody, and control of her children is a
precious liberty interest protected by the Constitution. See, e.g., Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); Santosky v. Kramer, 455
U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982). Accordingly, termination
proceedings are strictly scrutinized on appeal. See Holick v. Smith, 685 S.W.2d 18,
20 (Tex. 1985). Clear and convincing evidence must support the decision to
terminate parental rights. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002); see
also Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92.
Evidence is legally sufficient if it is “such that a factfinder could reasonably
form a firm belief or conviction about the truth of the matter on which the State
bears the burden of proof.” J.F.C., 96 S.W.3d at 265–66; see TEX. FAM. CODE
§ 101.007. We review “the evidence in the light most favorable to the judgment,”
meaning that we “must assume that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so.” J.F.C., 96 S.W.3d at 266. “If,
after conducting its legal sufficiency review of the record evidence, a court
determines that no reasonable factfinder could form a firm belief or conviction that
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the matter that must be proven is true, then that court must conclude that the
evidence is legally insufficient.” Id.
In a factual sufficiency review, we consider the entire record, including
evidence both supporting and contradicting the finding. See id.; In re C.H., 89
S.W.3d 17, 25–26 (Tex. 2002). “‘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 H.R.M., 209 S.W.3d
105, 108 (Tex. 2006) (per curiam) (quoting J.F.C., 96 S.W.3d at 266).
A strong presumption exists that the children’s best interests are served by
maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). In determining whether termination of a
mother’s parental rights was in the children’s best interest, we consider several
nonexclusive factors, including (1) the children’s desires, (2) the current and future
physical and emotional needs of the children, (3) the current and future physical
danger to the children, (4) the parental abilities of the person seeking custody,
(5) whether programs are available to assist the person seeking custody in
promoting the best interests of the children, (6) plans for the children by the person
seeking custody, (7) stability of the home, (8) acts or omissions of the parent that
may indicate that the parent-child relationship is improper, and (9) any excuse for
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acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). The Department is not required to prove all of these factors, and the absence
of evidence about some factors does not preclude the factfinder from reasonably
forming a strong conviction that termination is in the children’s best interest. See
C.H., 89 S.W.3d at 27. Evidence establishing one of the predicate acts under
section 161.001(b)(1) also may be relevant to determining the best interests of the
children. See id. at 27–28.
In this case, the children are currently in foster care, where they are safe and
well-bonded to a caregiver who wishes to adopt them. But the mother argues that
termination of her parental rights was not supported by sufficient evidence because
she participated in visitation and individual counseling, obtained employment and
a place to live, attended court hearings, and maintained good communication with
her caseworker. The mother’s satisfactory actions in compliance with parts of the
family plan of service do not conclusively outweigh the clear-and-convincing
evidence that termination of the parent-child relationship serves the best interest of
the children.
Several of the Holley factors are neutral in our analysis of this appeal. None
of the children testified, and three of them were too young to express their desired
outcome, but the evidence showed that all children were well-bonded to the
caregiver who wished to adopt. The record is silent as to whether there are
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programs available to assist the mother in promoting the best interests of the
children, the mother’s plans for the children, and any excuse for the mother’s acts
or omissions.
Other Holley factors weigh in favor of the trial court’s finding that
termination of the mother’s parental rights was in the children’s best interest. Chief
among these is the element of stability of the home. Stability of the home has been
found “to be of paramount importance in a child’s emotional and physical well-
being.” Quiroz v. Dep’t of Family & Protective Servs., No. 01-08-00548-CV, 2009
WL 961935, at *10 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (mem. op.).
“Without stability,” a parent cannot “provide for the child’s emotional and physical
needs.” In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.).
The evidence at trial showed that prior to the Department’s intervention, the
children moved frequently from one daily-rate motel to another. When the
Department took custody of the children, they were dirty and had unmet physical
needs, like B.A.B.’s abscessed teeth and the fact that he had not yet been toilet
trained at age six. All of the children had developmental delays.
A parent’s drug use is also indicative of instability in the home environment
because it exposes the children to the possibility that the parent may be impaired or
imprisoned. See In re A.M., No. 01-16-00130-CV, 2016 WL 4055030, at *4 (Tex.
App.—Houston [1st Dist.] 2016, pet. filed); P.W. v. Dep’t of Family & Protective
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Servs., 403 S.W.3d 471, 479 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d
w.o.j.). The mother continued to use cocaine when she knew it not only exposed
her to the possibility of imprisonment but also jeopardized her continued
relationship with her four young children. In addition, she used cocaine while she
was pregnant with her fifth child. The evidence further showed that the mother’s
drug use, as well as limitations in her memory, affected her parental abilities and
judgment.
While the Holley factors weigh in favor of the court’s conclusion that
termination of the mother’s parental rights was in the children’s best interest, they
are not necessarily the only considerations relevant to determining the best interest
of the children. In re A.C., 394 S.W.3d 633, 641–42 (Tex. App.—Houston [1st
Dist.] 2012, no pet.). The “prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest.” TEX. FAM. CODE
§ 263.307(a). In determining whether a parent is willing and able to provide a safe
environment, we consider several factors, including (1) the ages and vulnerabilities
of the children; (2) whether there is a history of abusive or assaultive conduct by
the children’s family or others who have access to their home; (3) the willingness
and ability of the children’s family to seek, accept, and complete counseling
services and cooperate with agency supervision; (4) the willingness and ability of
the children’s family to effect positive changes within a reasonable period of time;
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and (5) whether the children’s family demonstrates adequate parenting skills. Id.
§ 263.307(b).
All of these factors weigh in favor of the trial court’s decision. The children
were young and had developmental delays making them dependent on others for
their care. The father had a long criminal history including a history of domestic
assault against the mother, and the mother intended to allow him into their lives
upon his release from prison. The mother’s failure to complete the court-ordered
services in this case showed a lack of willingness to accept and complete
counseling services, and her acts and omissions before and during the pendency of
the case established that she lacks adequate parenting skills.
Considering all of the evidence in light of the factors relevant to the best
interest of the children, we conclude that a reasonable factfinder reasonably could
form a firm belief or conviction that termination of the mother’s parental rights
was in the children’s best interest. See J.F.C., 96 S.W.3d at 265–66. We hold that
the evidence was legally sufficient to support the trial court’s finding that
termination of the mother’s parental rights was in the children’s best interest.
Considering the entire record, we likewise find the evidence factually sufficient to
support the trial court’s best-interest finding. See id. at 266. We overrule this issue.
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Conclusion
We affirm the decree of the trial court.
Michael Massengale
Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
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