in the Interest of T.M.D, Jr., B.M.D., Z.T.D and E.M.D. Children ( 2014 )

Opinion issued May 6, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00970-CV
———————————
IN THE INTEREST OF T.M.D., JR., B.M.D., Z.T.D., AND E.M.D.,
CHILDREN
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Case No. 2007-02141
MEMORANDUM OPINION
Appellant L.M. appeals from the trial court’s decree terminating her parental
rights to her children: T.M.D., Jr., B.M.D., Z.T.D., and E.M.D. In five issues, she
argues that the evidence is insufficient to support the court’s findings on any of the
four predicate acts that the court found were satisfied or that termination of her
parental rights was in the best interest of the children.
We affirm.
Background
L.M. is the biological mother of the four special-needs children at issue in
this appeal: T.M.D., Jr., B.M.D., Z.T.D., and E.M.D. These children were aged 7,
6, 5, and 4, respectively at the time the Texas Department of Family and Protective
Services interceded and removed them from their parents’ care. Ultimately the trial
court ordered the termination of the mother’s parental rights, and it is from this
decree that she appeals. The trial court’s decree also terminates the parental rights
of the children’s father, T.D., but he does not appeal, and thus we focus our
discussion and analysis on the mother.
Prior to the events that gave rise to this case, the attorney general initiated a
suit affecting the parent-child relationship pursuant to Chapter 233 of the Texas
Family Code. In December 2006, by an Agreed Child Support Review Order, T.D.
was adjudicated as the father of T.M.D., Jr. and B.M.D., and the mother and father
were appointed as joint managing conservators of the children. As of this time,
Z.T.D. and E.M.D. had not yet been born. The mother was given the right to
determine the children’s residence without regard to geographic location. Although
the order included “child support guideline findings,” because the parents were
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living together as a family at the time the order was entered, the trial court made no
orders as to child support except to admonish both parents “to provide support, to
the best of their abilities.”
Approximately four-and-a-half years later, in July 2011, the trial court
entered an order modifying the 2006 order. Among other things, this new order
adjudicated T.D. as the father of two additional children, Z.T.D. and E.M.D. Both
parents were again named joint managing conservators, but the father was
designated as having the exclusive right to designate the primary residence of the
children in Harris County or any contiguous county. The order provided the mother
with periods of unsupervised access and possession and stated on its face that it
could be enforced by a peace officer. The order recited that the father was allowing
the mother to reside with him, but he was seeking ongoing monetary support. The
trial court found that the father was unemployed and was obligated by a court order
to provide medical and child support for another child who was not before the
court. The mother was ordered to pay child support to the father on a graduated
schedule which declined as each of the four children reached the age of majority.
Income withholding orders were included in the court’s order.
The family lived together until the father forcibly removed the mother from
the home in April 2012. Around that time, the parents “argued a lot,” and the
mother sometimes feared for the children’s safety. She testified that she left the
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home with them on several occasions because the father “got really loud and
rambunctious quite often and I couldn’t have my children around it.” The mother’s
testimony about the father’s treatment of the children was somewhat contradictory.
She initially testified that the children told her that he had abused them physically
and verbally, but she later testified that they told her that he had abused them
verbally but not physically. She said, “They had only stated they got a whopping
and put in time out. They didn’t exaggerate to what extent because they are so
small.” She also testified that she witnessed the father verbally abusing the
children, but she did not see him physically abuse them. She testified that the last
time any of the children reported such abuse to her was in March 2012 “before he
had kicked me out.” Her testimony was unclear about dates; she initially testified
that she resided with the father and the children until she was removed from the
home in 2011, but she later said it was 2012, just before the Department became
involved.
Despite the mother’s testimony that she did not witness physical abuse while
she was living with her children and their father, she told employees at her
children’s school to contact Child Protective Services if they noticed “any marks or
anything abnormal” on her children. She testified that she did so because she
anticipated that the father would follow through on his threats to remove her from
the home. But she conceded at trial that asking the school to be on the lookout for
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signs of physical abuse suggested that she had reason to believe the father was
abusing the children.
The mother testified that when she was forcibly evicted by the father, she
could not take the children with her “because he had primary custody,” apparently
referring to the July 2011 court order. She also said that the “only reason he had
primary custody” was that she had been sick with a double kidney infection and
blood infection and had feared that she would die.
On April 25, 2012 and May 7, 2012, the Department of Family and
Protective Services received referrals alleging that T.M.D., Jr. had been physically
abused by his father. According to information provided by the school, T.M.D., Jr.
had six fresh bruises on his arms, neck, and cheek on April 23. A week later, he
arrived at school with a large bruise on his left eye and an open cut on his face. A
week after that, he came to school with fresh bruises on his face, specifically his
right eye. The referral also alleged that he “often shows up to school with bruises
on his face and neck, dirty clothes, hungry, [and] emotionally disturbed.”
Emerald Ealy, a caseworker with the Department, spoke with T.M.D., Jr. at
his elementary school on April 25. The child told Ealy that when he misbehaved at
home, his father whipped him with a belt. He gave various stories to explain the
visible bruising on his body—including that he had been bitten by a bug or
accidentally injured while playing in the park—before becoming upset and
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withdrawn. The school’s speech pathologist told Ealy that she had observed
bruises on T.M.D., Jr., he was always hungry, and he was emotionally disturbed.
The school nurse told Ealy that the mother was not “in the picture,” and when she
was involved, the children often missed school.
That same day, Ealy visited the father’s house, where she saw the three
younger children. She did not observe any marks or bruises on them. She did not
interview the two youngest children due to their age, and she did not understand
B.M.D., who is autistic. The father reported that he did not know how T.M.D., Jr.
sustained his bruises. He also told her that: (1) he had been with the children since
their birth; (2) he had no family support; (3) T.M.D, Jr. is speech impaired, and
B.M.D. is autistic; (4) the mother is bipolar and has other health issues; and (5) he
did not have contact information for the mother.
Two weeks later, another Department caseworker, Latoya Dunbar,
interviewed T.M.D., Jr. at his elementary school. This time the child stated that his
father punched him on his left eye and slapped him hard in the face near his right
eye. The mother was unable to take the children at that time because she did not
have housing and furniture. Accordingly, all four children were removed from the
father’s home and placed in foster care.
The Department filed suit for protection of the children, conservatorship,
and termination. After an adversary hearing, the trial court entered a temporary
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order, appointing the Department temporary managing conservator for the
children. In addition, the court ordered the mother to “comply with each
requirement set out in the Department’s original, or any amended, service plan
during the pendency of this suit,” and notified her that “failure to fully comply with
these orders may result in the restriction or termination of parental rights.” In
addition, the first item on the family service plan also informed the mother that
failure to comply could result in termination of her parental rights:
THIS IS A VERY IMPORTANT DOCUMENT. ITS PURPOSE 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. THERE
WILL BE A COURT HEARING AT WHICH A JUDGE WILL
REVIEW THIS SERVICE PLAN.
The family service plan required, among other things, that the mother
(1) participate in domestic violence classes and present a certificate of completion
to the caseworker no later than 30 days from the last class, (2) participate fully in a
psycho-social assessment to address her emotional and mental needs and that she
follow all recommendations from the evaluation including psychological or
psychiatric evaluation, individual therapy, and group therapy, (3) participate in
parenting classes with an emphasis on special-needs children, and (4) obtain and
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maintain stable housing for more than six months, which was to be safe, clean, and
free of hazards and to have operational utilities.
Although the mother completed many of the services that were required by
the family service plan, including maintaining employment and visitations, she did
not complete all of the services. Larry Johnson, the caseworker assigned to this
case, testified that the mother did not complete a “victims of domestic violence”
course or a parenting class. Although she did complete a psycho-social assessment,
she did not follow through with recommendations from that assessment, including
psychological assessment, individual counseling, and family counseling.
Adele Countrymen, the volunteer child advocate, testified that she reviewed
the services with the mother many times. She said that she had “great hopes” that
the mother would “get things done,” and that although the mother did “start some
things,” “[e]very time she started, she would stop and they would have to find
another place or move to another place so the services are not completed to fulfill
what should have happened probably almost, more than a year ago.”
The mother conceded at trial that she had not completed all of her services.
At the time of trial she had been living with a friend in a two-bedroom apartment
for approximately one month. She testified that she did not have a place to live that
was suitable for her children.
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In addition, the record includes evidence of the mother’s mental health
history. The mother said she had been hospitalized five or six times for mental
health issues, most recently in 2011. Her first psychiatric hospitalization was an
outpatient visit when she was between the ages of 11 and 13, and her first inpatient
psychiatric hospitalization was after the birth of T.M.D., Jr., when she was 17 or
18 years old. She said her diagnoses have not all been consistent. She testified that
she had been previously diagnosed with ADHD, an emotional distress disorder,
and “just a number of odd random things that I don’t even know.” However, she
did recall that her most recent mental health diagnosis was “manic bi-polar major
depressive disorder,” which she said could be confused with another disorder that
“has to do with spousal abuse or physical, verbal abuse from the spouse.” The
mother testified that the father verbally abused her, and she said, “In other words,
he was just making me crazy.”
The child advocate testified about her understanding of the mother’s mental
health history, and she said that she had repeatedly spoken with the mother about
her mental health. The mother acknowledged that both the Department and Child
Advocates had advised her to seek a mental health evaluation through MHMRA,
but she did not do so and was not under the care of a mental health professional at
the time of trial.
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No evidence was presented that the mother’s mental health issues had
resolved; rather, she testified, “I just felt like I didn’t need any more medication.”
She further explained that there were “extenuating circumstances” that had
prevented her from addressing her mental health during the pendency of the case.
She said she could not afford it because the monthly child support garnishment
from her wages left her without enough money to pay for transportation. The child
advocate testified that the mother never asked for help regarding access or
transportation to medical services, and that “she just said it was too far, and she
wasn’t going to go there, she couldn’t go there, she didn’t have the money to go
there, there was no reason to go there, that she was fine.” The mother asserted that
she knew how to take care of herself, and she said, “As far as medication goes, I no
longer need medication. All I have to do is prove that to the court and that means I
have to go to MHMRA which means I have to afford to go there. I cannot afford to
go there and do that.”
The mother testified that she worked 40 hours a week as a security guard
and that if she were not obligated to pay child support, she would be “fine”
financially. She also said that although her work schedule included afternoons,
evenings, and weekends, she could adjust her work schedule to fit her children’s
school schedule. She said that her roommate, who was also a friend of many years,
could pick up the children from school and watch them while she worked. But the
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friend did not testify at trial and the mother conceded that no one connected to the
case had met her. The mother testified that she had “looked up and researched” her
children’s conditions and was “already . . . familiar” with T.M.D., Jr.’s and
B.M.D.’s needs. She said, “I believe I have familiarized myself enough with them
and their conditions to be able to take care of them properly with their conditions.”
Finally, she testified that she loved her children, wanted to be reunited with them,
could care for them, and hoped the court would not terminate her rights to them.
A caseworker testified about the children’s special needs. T.M.D., Jr. has
ADHD, mood disorder, oppositional defiant disorder, and anger management
issues. B.M.D. has been diagnosed with autism, ADHD, adjustment disorder with
mixed disturbance of emotion and conduct, mixed receptive expressive language
disorder, borderline intellectual functioning, pica, and gross and fine motor skill
delays. Z.T.D. has severe developmental, academic, and motor skills delays, which
affect eating, dressing, and independent functioning. Z.T.D. is verbally and
physically aggressive, has frequent temper tantrums, has been diagnosed with
pervasive developmental disorder, ADHD, disruptive behavior disorder, and mild
intellectual disability. E.M.D. has language, emotional, and behavioral delays, and
she has been diagnosed with ADHD and borderline intellectual functioning. All
four children take prescription medication for their conditions and receive therapy,
counseling, or both.
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Both the caseworker and the child advocate testified that the children were
doing well and living together in their current therapeutic foster home. The child
advocate described the children as “a handful,” but she explained how well the
children were doing since being placed in a foster home together. Though previous
attempts to find adoptive parents for the children had not been successful, she
testified that she believed a different approach could be successful in finding
adoptive parents for the four children, and she asked the court to permit her to
remain assigned to the case to help find adoptive parents.
The child advocate also opined that it was not in the children’s best interest
to be reunited with their parents. She said:
My major concern is that they do not have a stable home life in which
these four children need stability. Neither parent is currently living on
their own, being able to pay their own bills, to provide a home. I do
not believe that either parent is aware of what grade their children are
in or which type of classes they are in, what needs to be done, how
often they need to go to the doctor. They’ve never ask[ed] me. And I
have checked many, many times, but I know, I know they have not.
They don’t know these answers, which concerns me a lot, in the fact
that if you are not taking care of your own situation and you have
other precarious financial situations, bringing four special needs
children in is a huge risk at this time.
The trial court found by clear and convincing evidence that the mother
(1) voluntarily left the children alone or in the possession of another without
providing adequate support for the children and remained away for a period of at
least six months, see TEX. FAM. CODE ANN. § 161.001(1)(C) (West 2014);
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(2) knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endanger the physical or emotional well-being of the children,
see id. § 161.001(1)(D); (3) engaged in conduct or knowingly placed the children
with persons who engaged in conduct which endangers the physical or emotional
well-being of the children, see id. § 161.001(1)(E); and (4) failed to comply with
the provisions of a court order that specifically established the actions necessary
for her to obtain the return of the children, see id. § 161.001(1)(O). In addition, the
trial court found that termination of the parent-child relationship between the
mother and T.M.D., Jr., B.M.D., Z.T.D., and E.M.D. was in the children’s best
interest. See id. § 161.001(2). Accordingly, the trial court entered a decree
terminating the mother’s rights with respect to the children.
The mother filed a request for findings of fact and conclusions of law and a
motion for new trial, contesting the legal and factual sufficiency of the evidence to
support the court’s findings. The trial court filed findings of fact and conclusions
of law, reiterating the findings included in the termination decree. After a non-
evidentiary hearing, the trial court denied the motion for new trial. L.M. appealed.
Analysis
Termination proceedings are strictly scrutinized on appeal. 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.
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2002); see also Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–
92 (1982). “Clear and convincing evidence” is “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007
(West 2014); J.F.C., 96 S.W.3d at 264; see also Holick, 685 S.W.2d at 20 (citing
Santosky, 455 U.S. at 747, 102 S. Ct. at 1391)).
Because of this heightened burden of proof, both legal and factual
sufficiency review of a decree terminating parental rights require a reviewing court
to consider all of the evidence to determine whether the factfinder could have
formed a firm belief or conviction about the truth of the matters as to which the
Department bore the burden of proof. In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual
sufficiency).
In a legal sufficiency review, we view the evidence in the light most
favorable to the finding. J.P.B., 180 S.W.3d at 573; J.F.C., 96 S.W.3d at 266. To
do this, we “consider all of the evidence, not just that which favors the verdict,”
J.P.B., 180 S.W.3d at 573, and we “assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could do so.” Id. (quoting
J.F.C., 96 S.W.3d at 266); see also Jordan v. Dossey, 325 S.W.3d 700, 712–13
(Tex. App.—Houston [1st Dist.] 2010, pet. denied). We also “disregard all
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evidence that a reasonable factfinder could have disbelieved or found to have been
incredible.” J.P.B., 180 S.W.3d at 573 (quoting J.F.C., 96 S.W.3d at 266); see also
Jordan, 325 S.W.3d at 712–13.
In a factual sufficiency review, we consider the entire record, including
evidence both supporting and contradicting the finding. See In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006) (quoting 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 factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient.’” Id.
In order to justify the termination of parental rights pursuant to
section 161.001, the Department must establish, by clear and convincing evidence,
that (1) the parent committed one or more of the statute’s enumerated acts or
omissions justifying termination and (2) termination is in the best interest of the
child. TEX. FAM. CODE ANN. § 161.001; C.H., 89 S.W.3d at 23. Both elements
must be established, and termination may not be based solely on the best 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). “Only one predicate finding under section
161.001(1) is necessary to support a judgment of termination when there is also a
15
finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d 355,
362 (Tex. 2003).
I. Failure to comply with court order
In her fourth issue, the mother argues that the evidence was legally and
factually insufficient to support the trial court’s finding under Family Code
section 161.001(1)(O) that she “failed to comply with the provisions of a court
order that specifically established the actions necessary for [her] to obtain the
return of the children who have been in the permanent or temporary managing
conservatorship of the Department . . . as a result of the children’s removal from
the parent under Chapter 262 for the abuse or neglect of the children.” See TEX.
FAM. CODE ANN. § 161.001(1)(O).
The mother argues that there was no evidence that the children were
removed from her as a result of her abuse or neglect of them. We disagree. Chapter
262 of the Family Code does not define “neglect,” but the Supreme Court of Texas
has held that the definition in Chapter 261 “surely inform[s] the term[’s] meaning.”
In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). Under Chapter 261, “neglect
includes placing a child in or failing to remove a child from a situation that
requires actions or judgment beyond his capabilities and that results in ‘a
substantial risk of immediate harm to the child.’” Id. at 246 (quoting TEX. FAM.
CODE ANN. § 261.001(4)(B)(i)). Accordingly, for Chapter 262, “‘abuse or neglect
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of the child’ necessarily includes the risks or threats of the environment in which
the child is placed . . . [including] the harm suffered or the danger faced by other
children under the parent’s care.” Id. at 248.
The mother testified that she was aware that the father was verbally and
physically abusive to the children because she witnessed it and the children told
her about it. She also testified that before the father removed her from the home,
she asked the school to look for and report to the authorities any signs of physical
abuse. She conceded at trial that this demonstrated her knowledge and awareness
that her children were at risk for abuse in the father’s home. The mother had joint
managing conservatorship of the children, pursuant to a court order that could be
enforced by a peace officer. That order gave her, among other things, the right to
unsupervised periods of access to and possession of the children and the duty “of
care, control, [and] protection” of the children. Although there was no evidence
that the mother herself verbally or physically abused the children, there was
evidence that she neglected them by disregarding a known risk of abuse and failing
to remove or otherwise protect them from a situation that posed a substantial risk
of immediate harm. See E.C.R., 402 S.W.3d at 247–48.
There was undisputed evidence at trial that the mother failed to fully comply
“with the provisions of a court order that specifically established the actions
necessary for [her] to obtain the return of the children who have been in the
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permanent or temporary managing conservatorship of the Department . . . as a
result of the children’s removal from the parent under Chapter 262 for the abuse or
neglect of the children.” See TEX. FAM. CODE ANN. § 161.001(1)(O). An order
under this subsection need not bear a title stating that it is an order “to obtain return
of a child”; rather, it will be sufficient under subsection (O) so long as it directs a
parent to perform specific acts and advises the parent that failure to provide a safe
environment within a reasonable time could result in termination of her parental
rights. See J.F.C., 96 S.W.3d at 277 & n.74. A trial court may direct a parent to
perform specific acts by ordering her to comply with a family service plan created
by the Department. See In re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *4
(Tex. App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.); In re
A.W.B., No. 14-11-00926-CV, 2012 WL 1048640, *3–4 (Tex. App.—Houston
[14th Dist.] Mar. 27, 2012, no pet.) (mem. op.). Partial or substantial compliance
with a court order is not enough to avoid a termination finding under section
161.001(1)(O). See In re M.C.G., 329 S.W.3d 674, 675–76 (Tex. App.—Houston
[14th Dist.] 2010, pet. denied); In re T.T., 228 S.W.3d 312, 319 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied).
The undisputed evidence at trial showed that the mother did not complete
parenting classes or a course for victims of domestic violence. Most notably, she
failed to obtain and maintain stable housing for more than six months. We hold
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that the evidence of this predicate act is both legally and factually sufficient to
support the trial court’s finding. J.P.B., 180 S.W.3d at 573; C.H., 89 S.W.3d at 25;
see also TEX. FAM. CODE ANN. § 161.001(1)(O). In light of this holding, we need
not consider issues one through three, which challenge the other findings of
separate predicate acts under section 161.001(1). See A.V., 113 S.W.3d at 362
(only one predicate act required).
II. Best interest of the child
In her fifth issue, the mother argues that the evidence is legally and factually
insufficient to support the trial court’s determination that termination of her
parental rights was in her children’s best interest.
A strong presumption exists that a child’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 child’s best interest, we consider several
nonexclusive factors, including (1) the child’s desires, (2) the current and future
physical and emotional needs of the child, (3) the current and future physical
danger to the child, (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 child, (6) plans for the child by the person
seeking custody, (7) stability of the home, (8) acts or omissions of the parent that
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may indicate that the parent-child relationship is improper, and (9) any excuse for
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 child’s best interest. See
C.H., 89 S.W.3d at 27. Evidence establishing one of the predicate acts under
section 161.001(1) may also be relevant to determining the best interest of the
child. See id. at 28.
Several of the 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. We
consider the current and future physical and emotional needs of the children, which
are great, the parenting ability of the mother, and the stability of the home together
because they are related.
All of the children have special physical and emotional needs, including
developmental, academic, and motor skills delays. They take medication and
receive counseling and therapy. Although the mother was ordered to take a class
on parenting special-needs children, she failed to do so. The mother testified that
she had “looked up and researched” the children’s conditions and believed she
could properly care for them. However the child advocate testified that she did not
believe that the mother knew what grades the children were in, what classes they
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took, how often they needed to go to the doctor, or how to meet each child’s needs.
The mother also demonstrated a limitation on her parenting ability by failing to
remove her four young special-needs children from an abusive situation.
Stability of the home is also a relevant factor in this case. “Stability is
important in a child’s emotional and physical development.” In re T.G.R.-M., 404
S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.). “Without stability,
income, or a home, [a parent] is unable to 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 mother failed to obtain and maintain stable housing for more than six
months as required by the court. At trial, she testified that she did not have suitable
housing for the children and had been living with a friend in a two-bedroom
apartment for a month. She said that her friend would care for the children while
she worked. However the friend did not testify at trial, and the mother conceded
that no other person associated with the case had ever met her friend.
Finally, relating to both the mother’s parenting abilities and the stability of
the home, we consider the mother’s mental health issues. Both the mother and the
child advocate testified about the mother’s history of mental illness, which has
necessitated multiple hospitalizations in the past. The diagnoses included: “manic
bi-polar major depressive disorder,” mood disorder, major depression with
psychotic features, and a suicide attempt and suicidal ideations. Yet the mother
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also had a history of refusing to address her mental health issues and failing to
follow through with recommended treatments. While mental illness is not a ground
for parental termination, the impact of a parent’s mental illness on her ability to
parent and the stability of the home are relevant factors in the best interest of the
child analysis. See, e.g., In re E.S.C., 287 S.W.3d 471, 475–76 (Tex. App.—Dallas
2009, pet. denied) (considering mental illness as factor in analysis of whether
termination under § 161.001(1)(O) was in the best interest of the children); see
also Adams v. Tex. Dep’t of Family & Protective Servs., 236 S.W.3d 271, 281
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (considering mother’s potential
failure to continue taking medication prescribed for mental illness as factor in best
interest analysis); cf. Liu v. Dep’t of Family & Protective Servs., 273 S.W.3d 785,
797–98 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (applying Holley best
interest factors in termination of parental rights under §161.003 and considering
impact of parent’s failure to treat mental illness on ability to provide stability and
meet the needs of the child). Here, the mother failed to address mental health
issues that have in the past led her to be hospitalized and to consider or attempt
suicide. Such behavior subjects her children to uncertainty and instability. See
Jordan, 325 S.W.3d at 723–24. All of these factors—the needs of the children, the
parenting ability of the mother, and stability of the home—weigh in favor of the
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court’s conclusion that termination of the mother’s parental rights was in the
children’s best interest.
The Holley factors are not necessarily the only considerations relevant to
determining the best interest of the child. In re A.C., 394 S.W.3d 633, 642 (Tex.
App.—Houston [1st Dist.] 2012, no pet.). “[T]he prompt and permanent placement
of the child in a safe environment is presumed to be in the child’s best interest.”
TEX. FAM. CODE ANN. § 263.307(a) (West 2014). In determining whether a parent
is willing and able to provide a safe environment, we consider several factors,
including (1) the child’s age and vulnerabilities; (2) whether there is a history of
abusive or assaultive conduct by the child’s family or others who have access to
the child’s home; (3) willingness and ability of the child’s family to seek, accept,
and complete counseling services and cooperate with agency supervision; (4) the
willingness and ability of the child’s family to effect positive changes within a
reasonable period of time; and (5) whether the child’s family demonstrates
adequate parenting skills. Id. § 263.307(b). Evidence establishing one of the
predicate acts under section 161.001(1) also may be relevant to determining the
best interest of the child. See C.H., 89 S.W.3d at 28.
Here, all of these factors weigh in favor of the trial court’s decision. The
children were 4, 5, 6, and 7 years old at the time of removal, and they had special
needs that made them entirely dependent on others for care. The mother has a
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history of allowing her children to remain in an abusive situation. She has not
followed through with services, shown a willingness to affect positive changes in a
reasonable time, or demonstrated adequate parenting skills to address the specific
needs of these children. Considering all of the evidence in light of the Holley and
statutory factors relevant to a determination of the best interest of the children, we
conclude that a reasonable factfinder could have formed a firm belief that
termination of the mother’s parental rights was in the best interest of T.M.D., Jr.,
B.M.D., Z.T.D., and E.M.D. We hold that the evidence was legally and factually
sufficient to support the trial court’s best interest finding, and we overrule this
issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
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