in the Interest of J. L. M., K. A. S., B. B. S., and A. L. S., Minor Children ( 2016 )

Opinion issued November 15, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00445-CV
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IN THE INTEREST OF J.L.M., K.A.S., B.B.S., AND A.L.S., MINOR
CHILDREN
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Case No. 75684-F
MEMORANDUM OPINION
C.B. appeals from the trial court’s judgment terminating her parental rights to
her four children, J.L.M., K.A.S., B.B.S., and A.L.S. In four issues, C.B. contends
that (1) the trial court erred in continuing the trial proceedings after the monitored
return of her children failed instead of beginning a new trial, and in considering
evidence presented prior to the date of the monitored return order; (2) the evidence
is legally and factually insufficient to support the trial court’s termination findings
under Family Code section 161.001(b)(1)(D); (3) the evidence is legally and
factually insufficient to support the trial court’s termination findings under section
161.001(b)(1)(E); and (4) the evidence is legally and factually insufficient to support
a finding that termination of C.B.’s parental rights is in the children’s best interest.
We affirm.
Background
On March 8, 2013, the Department of Family and Protective Services began
an investigation into allegations of neglectful supervision, physical abuse, and
medical neglect of J.L.M. (nine years old), K.A.S. (three years old), A.L.S., and
B.B.S. (two-year old twins). J.L.M., who was found with belt marks on the back
and front of her leg, described seeing her mother’s live-in boyfriend, Edward Wiley,
drag her mother by her feet. The incident resulted in a domestic disturbance call to
police. The Department learned from J.L.M.’s school that J.L.M. was missing as
many as two days of school every week. K.A.S., who was staying with his
great-grandmother at the time, was found unsupervised outside by police.
In June 2013, Susan Gonzales, a Department caseworker, completed a
family-based safety services assessment of C.B. in which she noted the following
concerns: over-discipline of J.L.M., a history of substance abuse with no treatment
2
completed, multiple caregivers for the children, and a history of family violence.
After detecting the smell of marijuana during a home visit on July 9, 2013, Gonzales
asked C.B. to submit to a urinalysis but C.B. failed to show up for the scheduled test.
After several failed attempts to locate C.B. in August 2013, the Department
conducted a home visit on August 28 at the home of C.B.’s great-grandmother. C.B.
told Tyshawndalon Eaton, the assigned caseworker, that she was no longer in a
relationship with Wiley and refused to sign the safety plan and family plan of service.
On September 17, 2013, Eaton learned that J.L.M.’s school continued to be
concerned about her attendance. When Eaton attempted to conduct a home visit on
October 8, 2013 at the home of C.B.’s great-grandmother, she was told that C.B. was
unavailable and that the children were staying with an aunt in a different city.
On October 20, 2013, C.B. and Wiley were arrested for assault and released
the following day with time served. On October 24, 2013, C.B. signed the family
plan and agreed to participate in services. On October 31, 2013, due to her recent
arrest and noncompliance with services, C.B. agreed to place all four children with
her maternal aunt. However, during a meeting on December 6, 2013, C.B.’s aunt
told Eaton that she could no longer care for C.B.’s children because C.B. was
disrespectful toward her and that C.B. preferred to be with Wiley rather than with
her children. C.B. told Eaton that she was willing to participate in services while
living with Wiley.
3
On January 2, 2014, Eaton learned from police that C.B. and Wiley were
involved in a family violence altercation in which C.B. sustained visible facial
injuries, and that K.A.S was present during the incident. On January 7, 2014, the
Department attempted to conduct a family team meeting to secure a safe placement
for the children in light of the recent episode of family violence and to engage the
family in services. C.B. failed to show up for the meeting and informed a
Department representative that she preferred the children to enter foster care because
“they needed a vacation.” A.L.S. and B.B.S. were placed with an aunt and J.L.M.
and K.A.S. were placed with a maternal grandmother. At 11:45 p.m., C.B. arrived
at the Department offices accompanied by Wiley, apologized for missing the
meeting, and agreed to the Department’s safety plan. She also took a drug test and
tested negative.
On January 8, 2014, C.B. told Eaton that she had decided not to participate in
services. On January 13, 2014, C.B. told Eaton that she no longer wanted the
children placed with the aunt and that she wanted them moved to the home of another
relative immediately. She told Eaton that although she was aware of her aunt’s bond
with A.L.S. and B.B.S., it was time for the bond to be “broken” because “they were
turning her kids against her.” During the call, C.B. became very upset and
belligerent toward Eaton and threatened her. On January 14, 2014, C.B. told Eaton
4
that she was no longer in a relationship with Wiley. The next day, C.B. took the
children to stay in the home of a family friend.
On January 27, 2014, the Department filed an Original Petition for Protection
of a Child, for Conservatorship, and for Termination in Suit Affecting the
Parent-Child Relationship. In its petition, the Department requested that the trial
court set a hearing to determine temporary managing conservatorship of J.L.M.,
K.A.S., B.B.S., and A.L.S. based on neglectful supervision. In her supporting
affidavit, Eaton cited C.B.’s refusal to engage in services; her placement of the
children with several relatives who the Department determined to be inappropriate
placements; her disruptive behavior toward the placements; her failure to appear for
a drug test; her failure to initiate parenting classes or therapy; her constant movement
between three counties; the domestic violence in her relationship with Wiley; and
her arrest for assault. On February 6, 2014, C.B. tested positive for synthetic
marijuana.
On February 13, 2014, the trial court held a show cause hearing and appointed
the Department temporary managing conservator of the children. In its order, the
court set a trial date of January 15, 2015 and a dismissal date of February 9, 2015.
Trial began on January 15, 2015. Upon the Department’s and court-appointed
ad litem’s request, the court continued the proceeding until February 5, 2015. On
February 5, Sharon McNair, the Department supervisor assigned to the case, testified
5
that the Department’s goal was permanent managing conservatorship to relatives.
She stated that it was in the best interest of J.L.M., A.L.S., and B.B.S. to remain with
their current caregivers, and requested that the Department be granted
conservatorship of K.A.S. while it continued to work with C.B. to determine whether
he could be returned to her because no other relative was available or willing to take
him while C.B. remained involved in his life. The trial court decided to carry the
issue and the case was continued.
When trial resumed on June 18, 2015, McNair testified that the Department’s
recommendation had changed from permanent managing conservatorship to
relatives to termination of C.B. parental rights due to several developments in the
intervening months. McNair testified that during a family visit on February 27,
2015, the children became visibly upset when C.B. began cursing at McNair and told
the children not to leave with McNair and to return home with her instead. On March
29, 2015, during another family visit, C.B. began screaming and cursing. Police
were called to intervene on both occasions. McNair stated that C.B. threatened and
was verbally abusive to her therapists, a Department caseworker, and the relative
placements, and that C.B. was unsuccessfully discharged twice from individual
therapy. McNair testified that C.B. had not provided a safe and stable home for the
children, and that the children had an unhealthy fear of C.B.
6
On-cross examination, McNair testified that C.B. attended counseling, was
seen by a psychologist and psychiatrist, attended some parenting classes, and had
refrained from criminal activity since 2013. However, McNair also testified that
C.B. had not maintained a safe and stable home for the children, that she tested
positive for synthetic marijuana on one occasion, and did not show up for drug
testing on three occasions.
The trial resumed on August 7, 2015. Dr. Wafaa Faraq, a psychiatrist, testified
that he evaluated C.B. on May 6, 2015. Based on his evaluation, Dr. Faraq testified
that he had concerns about C.B.’s volatility and her denial of prior drug use and that
those issues would affect her ability to parent. He further testified that he had
significant concern about C.B.’s lack of insight into her behavior, stating that “the
big problem is that she didn’t acknowledge that she has any problem; and thus, you
can’t treat her.” Dr. Faraq testified that, based on his evaluation, he did not believe
that it was in the children’s best interest to be returned to C.B.
C.B. admitted that she had used a belt to discipline J.L.M. and that she and
Wiley were involved in a domestic violence incident in 2013 at which K.A.S. was
present. She acknowledged that she did not successfully complete therapy but was
unsure why. C.B. testified that she had left verbally abusive voice mail messages
for her therapist and that she “got into it” with her therapist, and that they “got into
cuss-out fight[s]” on more than one occasion. C.B. testified that she called the police
7
once during a family visit with her children because she was having a verbal
altercation with McNair and McNair pushed her.
At the conclusion of the testimony, pursuant to an agreement between the
parties, the trial court ordered a monitored return of the children to C.B. (with
staggered return dates), and that the Department monitor their return and report on
their progress. The court also set a new dismissal date of February 11, 2016. On
September 18, 2015, the trial court signed the monitored return order which
provided, among other things, that the Department would continue as temporary
managing conservator and was authorized to remove the children if it became
apparent that C.B.’s home was no longer a safe environment before the monitoring
period ended.
On January 20, 2016, the Department filed an Emergency Petition to Modify
Temporary Order seeking removal of the children.1 The Department attached
McNair’s supporting affidavit to the petition.2 At a hearing, McNair testified that,
on January 15, 2016, C.B. told her that she believed the twins had been sexually
molested by a relative of the foster caregiver with whom the twins had been placed
1
A.L.S., B.B.S., and K.A.S. had already returned to C.B. under the monitored return
order, and J.L.M. was scheduled to return that day.
2
In her affidavit, McNair noted C.B.’s prior criminal history which included eight
convictions between 2005 and 2010 for various offenses including criminal trespass,
theft, and resisting arrest.
8
prior to their return, and that J.L.M. had sexually molested one of the twins. On
January 16, J.L.M. told McNair that C.B. had called her the night before and
threatened to kill her, telling her that if she did not report the alleged sexual abuse of
the twins, C.B. was going to “put something in her drink and kill [her]” and put a
gun in J.L.M.’s mouth. McNair testified that an investigation of the molestation
allegations ruled them out. McNair testified that, based on these developments, the
Department decided not to return J.L.M. to C.B. McNair also testified that, on
January 16, C.B. left a voice mail message for her in which C.B. could be heard
coaching K.A.S. in question-and-answer format to say that McNair had told K.A.S.
“to run away from his mama, to run out into the middle of road so that he could get
run over and kill himself.” McNair stated that K.A.S. was distraught and crying on
the recording. McNair also testified that K.A.S. asked her to return him to foster
care. Based on these developments, the Department decided to remove A.L.S.,
B.B.S., and K.A.S. from C.B.’s home. At the close of the hearing, the trial court
ordered that there be no contact between C.B. and the children.
When trial resumed on April 14, 2016,3 McNair testified that when she
attempted to address J.L.M.’s statement that C.B. had threatened to kill her and
K.A.S.’s coached phone call, C.B. threw her cell phone at McNair’s head, shoved
3
On February 11, 2016, the trial court heard C.B.’s attorney’s motion to withdraw
and the Department’s motion to surrender necessities.
9
her, and spat on her. McNair testified that K.A.S. had tried to run away three times
after being returned to C.B. under the monitored return order. McNair also testified
that, in an effort make the monitored return successful, the Department provided
transportation for the children to attend medical appointments and helped C.B. enroll
K.A.S. in school, as well as secured county funds (in addition to the personal funds
contributed by McNair and another Department caseworker) to purchase a hot water
heater for C.B.’s home.
McNair testified that after the children were returned to C.B.’s home, McNair
discovered that Wiley was living in C.B.’s home. She also testified that C.B. failed
to abide by the terms of the monitored return order by not attending parenting
classes. McNair also testified that in the intervening period between the children’s
return to C.B.’s home and their removal in January 2016, C.B. had frequent outbursts
in her interactions with Department personnel—on phone calls, in text messages,
and in person during visits with her children—including one involving a foster
parent.4 On November 13, 2015, when C.B. was arrested for outstanding warrants,
McNair picked up the children from jail and arranged for them to spend the weekend
with their grandmother until C.B. returned home.
4
At the end of a visit with her children, C.B. verbally attacked a Department
employee calling her a “crackhead,” and C.B. had to be escorted out of the building
by security. McNair testified that when she escorted the children and foster parent
outside afterwards, C.B. began screaming at the foster parent, called her a
“crackhead,” and threatened to track her down.
10
McNair testified that the Department was seeking termination of C.B.’s
parental rights to her four children under grounds D, E, and O of Chapter 161.001
of the Family Code due to ongoing emotional neglect, both before and during the
monitored return, an unstable home environment, and C.B.’s complete
unwillingness or inability to supervise her children, and that termination would be
in the children’s best interest. McNair testified that J.L.M. was currently placed with
her paternal grandmother who is providing a stable environment for her, and that
J.L.M. is thriving and doing well in school. McNair testified that the Department’s
recommendation was to grant J.L.M.’s grandmother permanent managing
conservatorship of J.L.M. She further testified that A.L.S., B.B.S., and K.A.S. were
doing very well in their foster placements and that their physical, emotional, and
educational needs were being met.
C.B. testified that the phone call made to McNair with K.A.S. was an
unintended “butt dial” but later stated that she intentionally made the call to McNair.
C.B. further testified that J.L.M. lied when she told McNair that C.B. had threatened
to kill her. C.B. denied any involvement with her ex-boyfriend, Wiley. With regard
to McNair’s testimony that she saw Wiley at C.B.’s house during the monitored
return, C.B. testified that she did not know whether Wiley was there because she
was not at home. C.B. testified that she took some parenting classes, she has tested
negative on her drug tests since February 2014, and that she has not whipped J.L.M.
11
with a belt since the 2013 incident. She stated that if the children were returned to
her, they would live in a family-owned three-bedroom property rent-free. C.B.
testified that she had worked overnight shifts at Jack-in-the-Box for a month but quit
when the children were returned to her because she did not have overnight childcare.
She subsequently provided in-home healthcare for a neighbor for four hours a day
and earned $10 an hour but stated that her client was in the hospital at the time of
trial and she did not have any other clients. C.B. testified that K.A.S tried to run
away from school and told her that McNair had given him $10 and told him to run
away. C.B. also testified that when J.L.M. did not abide by her 11:00 p.m. curfew,
she called police for assistance.
At the conclusion of trial, the trial court found that termination of the
parent-child relationship was warranted under subsections (D) and (E), and that
termination was in the children’s best interest. The trial court signed its termination
order on May 16, 2016. This appeal followed.
Compliance with Family Code Sections 263.401 and 263.403
In her first issue, C.B. contends that the trial court erred in continuing the trial
proceedings after the monitored return of her children had failed instead of beginning
a new trial and in considering evidence presented prior to the date of the monitored
return order.
12
A. Applicable Law
Family Code section 263.401(a) requires the dismissal of a suit affecting the
parent-child relationship (“SAPCR”) filed by the Department requesting the
termination of parental rights or requesting that the Department be named managing
conservator on the first Monday after the first anniversary of the date the court
rendered a temporary order appointing the department as temporary managing
conservator, unless the court has commenced the trial on the merits or granted an
extension under Subsection (b) or (b-1). See Tex. FAM. CODE ANN. § 263.401(a)
(West Supp. 2016). Subsection (b) provides that “[u]nless the court has commenced
the trial on the merits, the court may not retain the suit on the court’s docket after
the time described by Subsection (a) unless the court finds that extraordinary
circumstances necessitate the child remaining in the temporary managing
conservatorship of the department and that continuing the appointment of the
department as temporary managing conservator is in the best interest of the child.”
See id. at §263.401(b). In that case, “the court may retain the suit on the court’s
docket for a period not to exceed 180 days after the time described by Subsection
(a).” See id.
Section 263.403(a) provides that “[n]otwithstanding Section 263.401, the
court may retain jurisdiction and not dismiss the suit or render a final order as
required by that section if the court renders a temporary order that: (1) finds that
13
retaining jurisdiction under this section is in the best interest of the child; (2) orders
the department to return the child to the child’s parent; (3) orders the department to
continue to serve as temporary managing conservator of the child; and (4) orders the
department to monitor the child’s placement to ensure that the child is in a safe
environment.” Id. at § 263.403(a). If the court renders an order under section
263.403, “the court shall . . . schedule a new date, not later than the 180th day after
the date the temporary order is rendered, for dismissal of the suit unless a trial on the
merits has commenced.” Id. at (b).
B. Analysis
The record reflects that the trial court rendered a temporary order appointing
the Department as temporary managing conservator on February 7, 2014, and set the
dismissal date on February 9, 2015. It is undisputed that a bench trial commenced
on January 15, 2015, within the initial one-year dismissal period under section
263.401(a). The record further shows that the case was continued on February 5,
2015, June 18, 2015, and August 27, 2015, following which the trial court signed a
monitored return order on September 18, 2015. On January 20, 2016, the
Department filed an emergency petition to modify the temporary order seeking
termination of C.B.’s parental rights to the children. The trial resumed on April 14
until the close of evidence on April 16, 2016. The trial court entered its termination
order on May 16, 2016.
14
C.B. argues that section 263.403 makes no mention of continuing a trial after
a failed monitored return. Instead, she asserts that the statute’s language stating “[i]f
a child placed with a parent under this section must be moved from that home by the
department before the dismissal of the suit or the commencement of the trial on the
merits” means that the trial court was required to start a new trial on the merits. We
find no such requirement in the statute. After the children were removed following
the failed monitored return, the trial court resumed proceedings on April 14, 2016,
stating, “All right. Back on the record in 75684, Baldridge/Mack, continuing on the
final trial.” We are aware of no authority for the proposition that a trial court is
required to begin a new, separate trial in the event a monitored return fails. To the
contrary, section 263.403 specifically allows a trial court to retain its jurisdiction and
continue the proceedings. See id. §263.403.
C.B. also complains that the trial court should have been limited to
considering the evidence presented during proceedings on April 14 and 15, 2016.
C.B. did not object to the trial court’s consideration of evidence admitted prior to the
entry of the monitored return order. Having failed to do so, she did not preserve this
complaint for our review. See TEX. R. APP. P. 33.1; Rogers v. Dep’t of Family &
Protective Servs., 175 S.W.3d 370, 377 (Tex. App.—Houston [1st Dist.] 2005, no
pet.). We overrule C.B.’s first issue.
15
Predicate Termination Findings Under Section 161.001(b)(1)
In her second and third issues, C.B. contends that the evidence is legally and
factually insufficient to support the trial court’s termination findings under sections
161.001(b)(1)(D) and (E).
A. Burden of Proof and Standard of Review
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355, 361 (Tex. 2003). A parent’s rights to the “companionship, care,
custody, and management” of his or her child is a constitutional interest “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102
S. Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
Accordingly, we strictly scrutinize termination proceedings and strictly construe the
involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985).
In a case to terminate parental rights under section 161.001 of the Family
Code, the Department must establish, by clear and convincing evidence, that (1) the
parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the best interest of the child. See TEX. FAM.
CODE ANN. § 161.001 (West Supp. 2016). Clear and convincing evidence is “the
measure or degree of proof that will produce in the mind of the trier of fact a firm
16
belief or conviction as to the truth of the allegations sought to be established.” Id.
§ 101.007 (West 2016); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). 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.
See In re A.V., 113 S.W.3d at 362.
In a legal sufficiency review in a parental rights termination case, we must
look at all the evidence in the light most favorable to the finding to determine
whether a reasonable trier of fact could have formed a firm belief or conviction that
its finding was true. In re J.F.C., 96 S.W.3d at 266. We assume that the fact finder
resolved disputed facts in favor of its finding if a reasonable fact finder could do so,
disregarding all evidence that a reasonable fact finder could have disbelieved or
found to have been incredible. Id.
When conducting a factual sufficiency review, we consider and weigh all of
the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009). “If, in light of the entire record, the disputed evidence that a
reasonable fact finder 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).
17
B. Analysis
The trial court found the evidence sufficient to support termination of C.B.’s
parental rights to J.L.M., K.A.S, A.L.S, and B.B.S. under two predicate grounds:
subsections (D) and (E) of section 161.001(b)(1). Section 161.001(b)(1) provides,
in relevant part, that the trial court may order termination of the parent-child
relationship if the court finds by clear and convincing evidence, in addition to the
best interest finding, that the parent has:
(D) knowingly placed or knowingly allowed the child to remain
in conditions or surroundings which endanger the physical or
emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with
persons who engaged in conduct which endangers the physical
or emotional well-being of the child; . . . .
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E) (West Supp. 2016). Endangerment
means to expose to loss or injury, to jeopardize. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987); In re K.P., ___ S.W.3d ___, 2016 WL 3023987,
at *10 (Tex. App.—Houston [1st Dist.] May 26, 2016, pet. denied).
Under subsection (E), the evidence must demonstrate that the endangerment
was the result of the parent’s conduct, including acts, omissions, or failure to act. In
re S.R., 452 S.W.3d 352, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Termination under subsection (E) must be based on more than a single act or
18
omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth
2003, no pet.); see TEX. FAM. CODE ANN. § 161.001(b)(1)(E). While endangerment
often involves physical endangerment, the statute does not require that conduct be
directed at a child or that the child actually suffers injury; rather, the specific danger
to the child’s well-being may be inferred from parents’ misconduct alone. Boyd,
727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738–39 (Tex. App.—Fort Worth
2004, pet. denied). A parent’s conduct that subjects a child to a life of uncertainty
and instability endangers the child’s physical and emotional well-being. In re A.B.,
412 S.W.3d 588, 599 (Tex. App.—Fort Worth 2013), aff’d, 437 S.W.3d 498 (Tex.
2014).
“Domestic violence, want of self-control, and propensity for violence may be
considered as evidence of endangerment.” In re S.R., 452 S.W.3d at 361 (citing In
re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). A
parent’s abusive or violent conduct can produce a home environment that endangers
a child’s well-being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th
Dist.] 2003, no pet.); Sylvia M. v. Dallas Cty. Welfare Unit, 771 S.W.2d 198, 201,
204 (Tex. App.—Dallas 1989, no writ) (considering “volatile and chaotic” marriage,
altercation during pregnancy, and mother’s repeated reconciliation with abusive
spouse). The record reflects that when the Department began its initial investigation
19
in March 2013, J.L.M., who had belt marks on the back and front of her legs,
reported seeing Wiley, C.B.’s live-in boyfriend, dragging C.B. by her feet resulting
in a domestic disturbance call to police. In October 2013, C.B. and Wiley were
arrested for assault. In January 2014, the Department learned from police that C.B.
and Wiley were involved in a family violence altercation in which C.B. sustained
visible injuries to her face, and that K.A.S. was present at the time. The court also
heard testimony that Wiley was living in C.B.’s home after the children were
returned to C.B. under the monitored return. See J. C.-O. v. Tex. Dep’t of Family &
Protective Servs., No. 03-16-00271-CV, 2016 WL 6068263, at *7 (Tex. App.—
Austin Oct. 14, 2016) (mem. op.) (concluding father’s continued relationship with
mother, which was admittedly abusive, raised doubt about his ability to be protective
parent to daughter).
The evidence also shows during two supervised family visits with her children
in February and March 2015, C.B. screamed and cursed at McNair, visibly upsetting
her children, and that police were called to intervene on both occasions. McNair
also testified that C.B. threatened and was verbally abusive to her therapists and
Department workers on numerous occasions, as well as to one of the children’s foster
parents on another occasion. In Interest of E.W., No. 14-14-00751-CV, 2015 WL
556399, at *6 (Tex. App.—Houston [14th Dist.] Feb. 10, 2015, no pet.) (considering
evidence of mother’s angry behavior with Department caseworkers, screaming
20
arguments with her domestic partner, cursing at court hearing, and angry outburst
after court proceeding, as supporting endangerment finding).
The court also heard evidence that, in January 2016, C.B. called J.L.M. and
threatened to kill her if she did not report alleged sexual abuse of one of the twins.
When McNair attempted to talk to C.B. about J.L.M.’s statement, C.B. threw her
cell phone at McNair’s head, spat on her, and shoved her.
A parent’s efforts to improve or enhance parenting skills are also relevant in
determining whether a parent’s conduct results in endangerment under subsection E.
See In re D.T., 34 S.W.3d 625, 640 (Tex. App.—Fort Worth 2000, pet. denied).
Failure to maintain stability endangers the child’s physical and emotional
well-being. See In re A.B., 412 S.W.3d at 599. The Department testified about their
concerns that C.B. was not abiding by the court-ordered service plan. The record
reflects that C.B. failed to complete court-ordered therapy to address the issue of
domestic violence; she regularly moved between three counties while her children
resided with multiple caregivers and, in doing so, failed to provide a stable home
throughout the pendency of the case; and she was arrested during the period of the
monitored return necessitating intervention by the Department to ensure that the
children were picked up at the jail and remained safe until her return home. “A
parent who lacks stability, income, and a home is unable to provide for a child’s
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emotional and physical needs.” In re C.A.C., No. 14-12-00396-CV, 2012 WL
4465234, at *12 (Tex. App.—Houston [14th Dist.] Sept. 27, 2012, no pet.).
The record also reflects that C.B was arrested in 2013 for assault and again in
2015 for outstanding warrants; in both cases, C.B. was jailed and released the next
day. In addition, evidence was admitted at trial showing that C.B. was convicted
eight times between 2005 and 2010 for various offenses including criminal trespass,
theft, and resisting arrest. Evidence of criminal conduct, convictions, and
imprisonment and the effect on a parent’s life and ability to parent may establish an
endangering course of conduct. In re S.M., 389 S.W.3d 483, 492 (Tex. App.—El
Paso 2012, no pet.).
Taking all of this evidence into account, the trial court could have considered
the domestic violence between C.B. and Wiley and Wiley’s continued presence in
C.B.’s life, C.B.’s volatility, repeated verbally abusive behavior toward Department
caseworkers and her therapists, as well as her physically assaultive behavior toward
McNair, C.B.’s threat to J.L.M. that she would kill her, C.B.’s criminal history, and
her inability to provide a stable home for the children as evidence that C.B. engaged
in a course of conduct that endangered her children. Although C.B. denied that she
was still in a relationship with Wiley or that she threatened J.L.M., the trial court
was entitled to believe or disbelieve her testimony. See In re E.W., 2015 WL
556399, at *7.
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Reviewing all the evidence in the light most favorable to the endangerment
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 section
161.001(b)(1)(E). In light of the entire record, the disputed evidence that a
reasonable fact finder could not have credited in favor of the endangerment finding
is not so significant that a fact finder could not reasonably have formed a firm belief
or conviction as to the truth of the termination finding under that subsection. See In
re H.R.M., 209 S.W.3d at 108. Accordingly, the evidence is both legally and
factually sufficient to support the termination findings under Family Code Section
161.001(b)(1)(E).5 We overrule C.B.’s third issue.
Best Interest of the Child
In her fourth issue, C.B. argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental rights
is in the children’s best interest.
There is a strong presumption that the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
5
Having determined that the evidence is sufficient to support the trial court’s finding
on this statutory ground, we need not consider whether the evidence would support
subsection (D), the other predicate ground for termination challenged in C.B.’s
second issue. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (affirming
termination decree based on one predicate without reaching second predicate found
by trier of fact and challenged by parent).
23
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). 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) (West Supp. 2016).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding: the desires of the
child; the present and future physical and emotional needs of the child; the present
and future emotional and physical danger to the child; the parental abilities of the
persons seeking custody; the programs available to assist those persons seeking
custody in promoting the best interest of the child; the plans for the child by the
individuals or agency seeking custody; the stability of the home or proposed
placement; acts or omissions of the parent which may indicate the existing
parent-child relationship is not appropriate; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). As noted, this list
of factors is not exhaustive, and evidence is not required on all of the factors to
support a finding that terminating a parent’s rights is in the child’s best interest. Id.;
In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting
termination under one of the grounds listed in section 161.001(b)(1) can also be
considered in support of a finding that termination is in the best interest of the child.
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See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) (holding same evidence may be
probative of both section 161.001 grounds and best interest).
In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment, including: the child’s age and physical and mental vulnerabilities; the
willingness and ability of the child’s family to seek out, accept, and complete
counseling services and to cooperate with and facilitate an appropriate agency’s
close supervision; the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; and whether
the child’s family demonstrates adequate parenting skills, including providing the
child with minimally adequate health and nutritional care, a safe physical home
environment, and an understanding of the child’s needs and capabilities. See TEX.
FAM. CODE ANN. § 263.307(b); In re R.R., 209 S.W.3d at 116.
A. Children’s Desires and Needs
McNair testified that the children have an unhealthy fear of C.B. due to C.B.’s
violent outbursts and volatility, and that K.A.S. asked her to take him back to foster
care and had tried to run away three times after being returned to C.B. under the
monitored return order. There was also evidence that, at the time the case began,
J.L.M. was missing school twice a week.
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McNair testified that J.L.M.’s paternal grandmother with whom she is
currently placed is providing a very stable environment for J.L.M. and that J.L.M. is
doing well in school. She further testified that A.L.S., B.B.S., and K.A.S. are doing
very well in their foster placements where their physical, emotional, and educational
needs are being met. See In re C.H., 89 S.W.3d at 28 (evidence about present and
future placement of child is relevant to best interest determination). This evidence
supports the trial court’s best interest finding under the first and second Holley
factors.
B. Endangering Conduct, Including Domestic Violence, Volatility, and
Criminal History
A parent’s past conduct is probative of her future conduct when evaluating
the child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San
Antonio 2013, no pet.). A parent’s abusive or endangering conduct may be
considered in a best interest analysis even when it occurred before the child’s birth.
In re G.M.G., 444 S.W.3d 46, 60 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
The trial court heard testimony about C.B.’s domestic abuse history in her
children’s presence and of C.B.’s continuing relationship with Wiley. The
Department presented evidence that C.B. exhibited frequent violent outbursts toward
Department caseworkers, at times in front of her children, verbally abused her
therapists, and verbally and physically assaulted McNair. J.L.M. told McNair that
C.B. threatened to kill her days before she was scheduled to return home. The trial
26
court also had before it evidence of C.B.’s criminal history, including an arrest in
2013 for assault and again in 2015 for outstanding warrants, and numerous
convictions between 2005 and 2010.
The evidence of C.B.’s continued endangering conduct supports the trial
court’s best interest finding. See In re M.S.L., No. 14-14-00382-CV, 2014 WL
5148157, at *7 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no pet.) (concluding
father’s series of crimes, including drug-related offenses and domestic violence
occurring before and after children’s births, supported trial court’s best interest
finding); In re J.I.T.P., 99 S.W.3d at 846 (stating domestic violence, even when child
is not intended victim, supports finding that termination is in child’s best interest).
This evidence supports the trial court’s best interest finding under the third Holley
factor.
C. Parenting Abilities, Acts or Omissions of the Parent, and Stability of the
Home or Proposed Placement
The fourth Holley factor considers the parenting abilities of the parent seeking
custody, the seventh factor considers the stability of the home, and the eighth factor
considers the acts or omissions of the parent which may indicate the existing
parent-child relationship is improper. The evidence shows that C.B. attended
numerous supervised visits with her children during the pendency of the case. It also
showed that during two supervised family visits, C.B. screamed and cursed at
McNair and police were called to intervene on both occasions, and that C.B.
27
threatened and was verbally abusive to Department workers during supervised visits
with her children. J.L.M.’s school also reported that J.L.M. was missing as many as
two days of school every week. There was also evidence that C.B. threatened to kill
J.L.M., and that she left a voice mail message for McNair in which she coached
K.A.S. to say that McNair told him to run away from C.B. and into the middle of
road so that he could get run over and killed, and that K.A.S. could be heard crying
on the recording. C.B. also testified that she had difficulty with J.L.M. during
overnight visitations because J.L.M., who was eleven years old at the time, would
not abide by her 11:00 p.m. curfew and that C.B. called the police for assistance.
Although C.B. testified that her family had a three-bedroom house in which she and
the children could live rent-free if they returned, there was also evidence that C.B.
regularly moved between three counties while her children resided with multiple
caregivers throughout the pendency of the case. This evidence supports the trial
court’s best interest finding under the third, seventh, and eighth Holley factors.
Viewing all the evidence in the light most favorable to the judgment, we
conclude that a fact finder could have formed a firm belief or conviction that
termination of C.B.’s parental rights is in her children’s best interest. See J.F.C., 96
S.W.3d at 265–66. In light of the entire record, the disputed evidence that a
reasonable fact finder could not have credited in favor of the best interest finding is
not so significant that a fact finder could not reasonably have formed a firm belief
28
or conviction that termination of C.B.’s parental rights is in her children’s best
interest. See In re H.R.M., 209 S.W.3d at 108. 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 is in the best interest of J.L.M., K.A.S., A.L.S., and B.B.S.
Accordingly, we overrule C.B.’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
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