in the Interest of A. L., T. L. S. and T. S. v. Department of Family and Protective Services ( 2020 )

Opinion issued April 2, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00888-CV
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IN THE INTEREST OF A. L., T. L. S. AND T. S., Minor Children
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Case No. 2016-72719
MEMORANDUM OPINION
This is an appeal in a parental termination case. The trial court found that the
mother endangered her two youngest sons, see TEX. FAM. CODE § 161.001(b)(1)(E),
and that she failed to comply with the provisions of a court order without proof of a
statutory defense. See id. § 161.001(b)(O). The court further found that termination
of her parental rights to her sons was in their best interest. The trial court did not
terminate the mother’s parental rights to her teenage daughter, but it found that it
was in the best interest of the daughter to appoint the Department of Family and
Protective Services (“the Department”) as the sole managing conservator and the
mother as the sole possessory conservator.
On appeal, the mother challenges the factual sufficiency of the evidence to
support the best-interest finding as to her two youngest sons and the trial court’s
exercise of discretion in appointing the Department sole managing conservator.
We affirm.
Background
Appellant is the mother of five children: Amy (16), Andy (9), Cam (8), Jason
(7), and Joey (3).1 Andy and Cam were placed with their paternal relatives, and they
are not the subject of this appeal.2
In September 2016, when appellant was nine months’ pregnant with Joey, the
Department received a referral alleging that she had been physically abusive to her
1
These are fictitious names, which we use to protect the anonymity of the children,
for ease of writing, and because of the similarity of the younger two children’s
names. Both the mother and the Department referred to the daughter, A.L., as Amy.
In her brief, the mother referred to T.L.S. as Tim and T.S. as Tom. In its brief, the
Department reversed this, referring to T.L.S. as Tom and T.S. as Tim. To avoid the
confusion created by the parties’ naming of the youngest sons, we refer to the older
son involved in this case as Jason, and the younger son involved in this case as Joey.
2
The mother’s parental rights to Andy and Cam were not terminated; she is their
possessory conservatory with visitation rights in accordance with a standard
possession order and based up on agreement with each son’s managing conservator.
2
children and had been using illegal drugs. The Department investigated, and the
mother submitted to a drug test, which was positive for cocaine. The mother
voluntarily placed her children with a friend, who kept them for several weeks, until
they were each placed with family friends or relatives. After threatening to flee with
her children, the mother picked them up from school unsupervised. This violated her
agreement with the Department. In October 2016, weeks after Joey was born, the
Department became the temporary managing conservator of the children.
When the children were removed, the mother was living in an apartment at
Cuney Homes, paying subsidized rent of $50 per month. The trial court permitted
her to keep custody of the newborn. Amy, who was 12 years old at the time,
remained with a family friend, and Jason, who was 3 years old, was placed with
Cam, who was 4 years old, with Cam’s biological father.
In January and February 2017, the mother tested positive for cocaine,
indicating that she had used cocaine in the three days before the test. Hair follicle
testing in January 2017 also showed that the mother had used cocaine in the 90 days
before that sample was taken. Because of the positive drug tests, in February 2017,
the Department removed Joey from his mother’s care. He was cared for in baby
group homes until he was placed with the foster parents who want to adopt him.
The trial court ordered the mother to comply with the terms of a family service
plan prepared by the Department and intended to address the reasons why the
3
children came into care. The family service plan required the mother to take a
parenting class, undergo substance abuse assessment and counseling, submit to drug
testing, maintain sobriety, attend visitation with her children, maintain safe and
stable housing, maintain employment, and demonstrate an ability to nurture and
protect her children.
In March 2017, the mother was evicted from her apartment at Cuney Homes
for nonpayment of rent. She later testified that she could no longer afford to pay rent
once Cam’s father stopped paying child support because Cam had been placed with
him. The mother lived in several other places, and for a period she was homeless.
The mother did not allow the Department to visit any of the places she lived since
Cuney Homes. At trial, the mother said that she did not ask the caseworker to see
any of her residences because she had stayed with several other people and she knew
they did not have the room for her children. At trial, she said she was living with her
boyfriend, Sidney Harrison.
The mother took a parenting class, completed psychological, psychosocial,
and substance abuse assessments, and she participated in some individual
counseling. But she did not complete the services required by the Department and
the family service plan. In particular, she did not complete individual therapy,
substance abuse classes, and a drug treatment plan. The mother testified that the
counseling sessions were expensive—between $100 and $200 per hour—and she
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could not afford to pay. Keverlyn Walker, the Department’s casework assigned to
this case, testified that the Department paid for the services until the mother was
unsuccessfully discharged due to failure to participate. After the mother was
unsuccessfully discharged from several services, Walker informed her that she
would be financially responsible for completing her services, and Walker informed
the mother of several providers that offered the required services at no charge.
Walker testified that the mother’s estimated costs were based on her selection of
providers.
The mother submitted to some drug tests, and she refused to submit to others,
despite having been told that a refusal to cooperate would be considered a positive
result for illegal drugs. At trial, the mother testified that sometimes she was unable
to get to the laboratory for testing due to lack of transportation or because she was
working. She explained that without a car, the bus ride to the downtown location
took about two hours and sometimes she could not afford the bus fare. The mother
also said that her identification card expired in 2018, and due to her difficulty
maintaining housing and employment, she had additional difficulty renewing her
identification. She also testified that she could not complete drug testing without
identification. Walker, however, testified that on several occasions she offered to
drive the mother to and from the drug testing laboratory and to vouch for her identity,
but the mother did not accept.
5
Bruce Jefferies, who works for the National Screening Centers, testified as an
expert in drug testing results and analysis. He testified about each drug test the
mother took and interpreted the results. According to Jefferies, a positive result on a
urinalysis meant that the mother used cocaine within three days preceding the date
the sample was collected. A positive result on a hair follicle test meant that the
mother used cocaine in the 90 days preceding the date the sample was collected.
According to the test results and Jefferies’s testimony, the mother used
cocaine in the three days preceding the following dates: 1/24/17; 2/2/17; 2/28/17;
6/12/17; and 4/17/18. She also used cocaine in the 90 days preceding these dates:
10/21/16; 1/25/17; 2/2/17;5/4/17; 8/21/17; and 10/19/17. She tested positive for the
use of opiates within three days of a sample taken in May 2017. She tested negative
for the use of illegal drugs within three days of samples taken on these dates:
10/20/16, 12/1/16; 6/2/17; 7/28/17; 8/21/17; 9/8/17; 10/5/17; 10/19/17; and 6/19/18.
The mother refused to take or failed to appear for drug tests in March and
April 2017. In June 2017 and June 2018, she refused hair follicle testing; once she
said that the laboratory was taking too much hair. The mother refused to take or
missed nine drug tests between November 2017 and April 2018, and she again
refused or missed five drug tests from August 2018 to December 2018. She refused
or missed another drug test on March 21, 2019. In June 2019, the mother tested
positive for marijuana, amphetamines, and methamphetamines.
6
At trial, the mother testified that she “completed all services except for—I
needed, like, six units of counseling, and I did like the substance abuse assessment,
like, three times, three or four times already, so—.” The mother asserted that she
missed two drug tests, saying that she had not received the voicemail message
because she was at work.
The mother remembered signing two family service plans, but she claimed
that she “had no idea” that her parental rights could be terminated if she did not
complete the services or the recommendations of the family service plan. Although
she testified that she did not read the plans, she also testified that she understood the
family service plans to be “a list of requirements by the Department in order for me
to get my kids back.”
The mother denied having used cocaine any time after November 11, 2003,
but she admitted that she had used drugs “every now and then” after her children
were born. She said that she “dibbled and dabbled a little,” but she maintained that
she did not use drugs “anywhere near my children.” The mother conceded that she
had missed more than one random drug screening. She testified that she had
difficulty with transportation to drug tests, but she admitted that she did not ask the
Department to find a closer drug testing location. Once, when Walker offered to
drive her to the drug test, take her home, and vouch for her when she lacked a valid
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identification, the mother declined because she “had some other pressing matters”
to deal with, including work.
The mother worked part-time for People Ready, a temporary staffing
company, from April or May 2017 until October 2018. She did not provide a year’s
worth of paycheck stubs to Walker or anyone else in the Department. At trial, she
testified that while the case was pending, she also worked for Walmart, Texas
Southern University, Café Express, and GES Services. She also testified that she had
an offer to do office work for Warrior Electric. She did not provide the Department
with proof of employment with these employers while the case was pending, nor did
she testify at trial about how much she earned or how consistently she worked. She
testified that she could not provide paycheck stubs because she lost all her
paperwork. She did not provide financial support to her children during the case,
except to buy a small present occasionally or give the children a few dollars when
she saw them. The mother testified that the Department had refused to help her, but
both the caseworker and the Child Advocate testified that they gave her financial
assistance in the form of grocery gift cards and bus passes, as well as nonmonetary
assistance and encouragement.
The mother described her relationship with her children as “very loving,” and
“close.” She called herself “a very active parent at the school,” and she said that she
was there often. She said that she and the children “have fun” during visits and that
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they play, talk, and laugh. But Walker, the Child Advocate, the boys’ foster parents,
and Amy’s foster mother all testified that the mother’s inconsistency in attending
visitation had negatively impacted the children. For example, Amy’s foster mother
reported that she would hear Amy crying when her mother failed to show up; Jason’s
foster parents noted that he became clingy or engaged in negative attention-seeking
behaviors when the mother cancelled a planned visit. Judy Ruhlin, the Child
Advocate, testified that she observed family visits in which the mother ignored the
children to use her phone and failed to observe and supervise them. For example, at
one visit, Jason and Cam ran through the halls while the mother made phone calls.
Ruhlin also noted that while the mother played well with Joey, she corrected Jason
frequently and ignored him when he behaved appropriately. Ruhlin described the
mother’s interaction with Amy as practically nonexistent, and she noted that Amy
often did not want to come to visits with her mother.
Jason and Joey’s foster father testified that he had twenty years of experience
in education, including eight years teaching English and Special Education and
twelve years as a college football coach. He testified about the routine that he and
his wife created for Jason and how their use of consistency, positive reinforcement,
and structure have reduced Jason’s negative attention-seeking behaviors. He talked
about the activities he engages in with both Jason and Joey, and he said that he loves
them and wants to adopt them. He testified that he and his wife chose sports activities
9
for Jason that would not interfere with his mother’s visitation schedule, noting the
genuine bond between the mother and Jason and that Jason misses his mother. He
also said, however, that the mother’s frequent last-minute cancellations of visitation
had an adverse effect on Jason. The foster father noted that Joey was just beginning
to understand what was happening.
The boys’ foster mother, who was pregnant at the time of trial, testified that
she worked as an administrative assistant at a high school. She said the boys came
to them in September 2017. She noted that Jason arrived with negative attention-
seeking behaviors, like being noisy, disruptive, and running around. She said that
Jason’s behavior improved with play therapy and consistency in the home. She said
that she acknowledged him, let him know that she loved him, gave him positive
attention, played with him, and read to him. She also said that Joey, who was almost
three years old, was thriving, was advanced for his age, and enjoyed sports. The
foster mother said that Jason became nervous before visits because he never knew
what to expect. Sometimes they waited in the car outside of the Department’s office
for up to an hour for the mother to arrive. Because the children would be
disappointed by last minute cancellations, the foster mother planned fun family
activities as alternatives if the visitation did not take place. She said Joey, who had
spent most of his early life in baby group homes, would have difficulty transitioning
to a new home, and she said that she thought both boys would adjust if visits with
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the mother were permanently discontinued. She testified that she wants to adopt the
boys.
Amy’s foster mother testified that she works two jobs, one of which she has
held for 26 years. She said that she would like to adopt Amy or provide a long-term
placement for her. She described Amy as “a normal teenager with a lot of baggage.”
She said that Amy was hurt when her mother missed visits, describing Amy as
“heartbroken” and “very sad.” The foster mother testified that she has an adopted
five-year-old daughter and a three-year-old foster daughter who live in the house
with them. She also has a large extended family, including children, grandchildren,
and cousins, who spend time together. She noted that six of those relatives were
present in court that day to provide support for Amy.
Amy’s foster mother talked about the challenges Amy had experienced in
addition to her sadness and disappointment. She said that Amy fought with other
girls at school and had both engaged in and been victimized by bullying, including
online bullying. The foster mother noted that Amy had twice been temporarily
placed in an alternative school due to the fighting. The foster mother noted that in
one such instance Amy was the victim, but the school chose to discipline all the
children who were involved. The foster mother testified that she is frequently at
Amy’s school, she knows who bullied Amy, and she met with their parents about it.
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Amy’s foster mother testified that she talks to Amy when her behavior falls
short, and she imposes consequences such as taking away the privilege of using a
cell phone or participating in fun outside activities. She testified that she periodically
monitors Amy’s cell phone and imposes consequences when she finds inappropriate
content, such as photographs of boys who are too old for Amy.
The foster mother testified about an incident that happened when Amy was
15 years old. Amy let her boyfriend in to the foster mother’s house when everyone
was asleep. The foster mother learned about this later when she overheard Amy
telling someone that she had sex with her boyfriend that night. The foster mother
impressed upon her that this behavior was unacceptable particularly because other
foster children reside in the house. She also called the caseworker and took Amy to
the doctor.3 She also changed the locks and testified that she was in the process of
installing cameras.
Amy’s foster mother testified that Amy was an A/B student who likes math
and wants to be a lawyer, and she said she was committed to helping Amy
accomplish her goals. She encouraged Amy to attend visitation to maintain a
connection with her mother and brothers. She said that Amy loves the three-year-old
and the five-year-old girls who live with them, and she refers to them as her sisters.
3
The caseworker testified that when she told the mother what had happened, she
referred to her daughter as a “ho” and requested that Amy not attend the next
visitation.
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The foster mother said that Amy does not babysit for the little girls, noting that Amy
is “my baby herself.” She said that Amy was safe and secure in her home and that
she had promised Amy that she would adopt her if that was what Amy wanted.
The caseworker and the Child Advocate both opined that termination of the
mother’s parental rights was in the best interest of the children because she had not
demonstrated an ability to provide the children with a safe and stable environment,
she had not achieved or maintained a drug-free life, and she had not addressed her
substance abuse issues. The mother said it was not in her children’s best interest to
terminate her rights, specifically noting that she was the only mother Amy knew.
The mother said she would “never believe” that her children’s needs for consistency,
routine, structure, or trust were being met in foster care. The mother was asked if
she understood what might happen if her parental rights were not terminated:
Q. Do you understand you could potentially be named as a
possessory conservator in this suit if this Court is so inclined?
A. Okay. That’s fine, yes.
After a bench trial, the court terminated the mother’s parental rights to Jason
and Joey, and though it did not terminate her parental rights to Amy, it appointed the
Department as sole managing conservator and appointed the mother as possessory
conservator. The mother appealed.
Analysis
I. Sufficiency of the evidence
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The mother concedes the predicate act findings and the legal sufficiency of
the evidence to support the trial court’s finding that termination of her rights was in
the best interest of her two youngest sons. In her first issue, she challenges only the
factual sufficiency of the court’s finding that termination of her parental rights to
Jason and Joey was in their best interest.
A. Standards of review
The interest of parents in the care, custody, and control of their children is a
fundamental liberty interest protected by the Constitution. See, e.g., Troxel v.
Granville, 530 U.S. 57, 65 (2000); Santosky v. Kramer, 455 U.S. 745, 758–59
(1982). But the rights of natural parents are not absolute. In re A.V., 113 S.W.3d 355,
361 (Tex. 2003). Protection of the child is paramount, and when the State institutes
proceedings to terminate parental rights, courts focus on protecting the best interests
of the child. See id.
“A strong presumption exists that a child’s best interests are served by
maintaining the parent-child relationship.” Walker v. Tex. Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 618 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied). We strictly scrutinize termination proceedings on appeal because “the
evidence in support of termination must be clear and convincing before a court may
involuntarily terminate a parent’s rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985) (citing Santosky, 455 U.S. at 747–48); see In re J.F.C., 96 S.W.3d 256, 263–
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64 (Tex. 2002). “‘Clear and convincing evidence’ means the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the truth of the allegations sought to be established.” TEX. FAM. CODE § 101.007.
In a factual sufficiency review, the reviewing court determines “whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth of the State’s allegations.” J.F.C., 96 S.W.3d at 266 (quoting In re
C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We do not disregard disputed evidence that
the factfinder could have disbelieved; rather, we consider whether “a reasonable
factfinder could not have resolved that disputed evidence in favor of its finding.” Id.
“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.; see In re A.R.R., No. 01-18-00043-CV, 2018 WL 3233334, at *3–
4 (Tex. App.—Houston [1st Dist.] July 3, 2018, pet. denied) (mem. op.).
A court may order termination of the parent-child relationship when it finds
by clear and convincing evidence that the parent has committed one or more of the
statutorily enumerated predicate acts or omissions, and that termination is in the
children’s best interests. TEX. FAM. CODE § 161.001(b)(1), (2). “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
15
interest.” A.V., 113 S.W.3d at 362; see In re A.H.L., No. 01-16-00784-CV, 2017 WL
1149222, at *3 (Tex. App.—Houston [1st Dist.] Mar. 28, 2017, pet. denied) (mem.
op.).
The “best interest” finding is a separate inquiry from the finding of a predicate
act, but evidence that supports a predicate-act finding may also be probative of the
best interest of the child. See TEX. FAM. CODE § 161.001(b)(2); A.R.R., 2018 WL
3233334, at *4. Our review of a trial court’s best interest finding is guided by the
following non-exclusive factors: (1) the desires of the child, (2) the emotional and
physical needs of the child now and in the future, (3) the emotional and physical
danger to the child now and in the future, (4) the parental abilities of the individuals
seeking custody, (5) the programs available to assist these individuals to promote
the best interest of the child, (6) the plans for the child by these individuals or by the
agency seeking custody, (7) the stability of the home or proposed placement, (8) the
acts or omissions of the parent that may indicate the existing parent-child
relationship is not proper, and (9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); A.R.R., 2018 WL 3233334,
at *4.
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B. The evidence is factually sufficient to support the trial court’s
finding that termination of the mother’s parental rights was in the
best interest of the children.
Desires of the children. Jason and Joey were seven and three years old,
respectively, at the time of trial, and no evidence indicates that either expressed any
desire about termination of their mother’s parental rights. This factor is neutral.
The emotional and physical needs of the child now and in the future, the
emotional and physical danger to the child now and in the future, the parental
abilities of the individuals seeking custody, and the stability of the home or
proposed placement. No evidence indicated that either Jason or Joey had any special
emotional or physical needs. However, the evidence showed that the mother had not
demonstrated an ability to meet the children’s basic needs, such as providing a safe
and stable home for the children. She moved multiple times during the case, and she
did not permit the Department to see her homes because she knew that they could
not accommodate her children. She testified that she had worked for multiple
employers, but she did not provide evidence verifying her employment to the
Department. She frequently missed visitation with the children, and multiple
witnesses testified at trial that her frequent and unpredictable absences from her
children’s lives caused them emotional harm. Although the mother completed a
parenting class—and testified that she learned how to communicate with her
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children—she did not demonstrate these skills during visitations in which she
sometimes ignored her children or scolded Jason.
To the contrary, the foster parents demonstrated an ability to nurture the
children and provide them with structure and consistency. They engaged with the
children in positive ways that enabled Jason to grow beyond his negative attention-
seeking behaviors. They demonstrated stability in their professional roles as well as
in their family life. This factor weighs strongly in favor of the trial court’s decree.
The programs available to assist these individuals to promote the best
interest of the child. Walker testified that if the mother’s parental rights to the boys
were not terminated, the Department would again offer services to the mother to help
address the reasons why the children came into care. However, she noted that the
mother had already been offered these services, free of cost, and she had failed to
participate. This factor does not weigh against the trial court’s decree.
The plans for the child by these individuals or by the agency seeking
custody. The mother did not testify about any plans for her children, despite the
sincerity of her expressions of love for them. The foster parents testified that they
loved the boys and wanted to adopt them. This weighs in favor of the trial court’s
decree.
The acts or omissions of the parent that may indicate the existing parent-
child relationship is not proper, and any excuse for the acts or omissions of the
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parent. Three areas indicate that the existing parent-child relationship is not proper.
First, the mother failed to address her substance abuse problem and continued to use
cocaine and other illegal substances at a time when she knew her parental rights were
in jeopardy. Second, she failed to comply with the provisions of a court order that
established the actions necessary to obtain return of her children. At trial she offered
excuses for her lack of follow-through, including lack of financial resources and
transportation. But other testimony indicated that she declined offers for help with
transportation and failed to avail herself of services when they were provided to her
at no charge. Third, the mother’s frequent and unpredictable absences from visitation
caused her children emotional harm. This factor weighs in favor of the trial court’s
decree.
***
Much of the evidence was undisputed. The evidence that did not support the
trial court’s decree consisted of the mother’s testimony. For example, she denied
using cocaine since her children were born. Her testimony regarding her drug use,
however, was inconsistent. She admitted at trial that she “dibbled and dabbled” with
drugs, i.e., used cocaine after her children were born. She also testified that, in her
opinion, termination of her parental rights was not in the best interest of the children.
The trial court as factfinder could have assessed the mother’s credibility against her,
and thus it could have disregarded the parts of her testimony that conflicted with the
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other evidence in this case. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)
(“[T]he factfinder, not the appellate court, is the sole arbiter of the witnesses’
credibility and demeanor.”).
We conclude that that the disputed evidence regarding the mother’s drug
use—i.e., the mother’s denial of drug use—was not so significant that it would have
prevented the trial court from reasonably forming a firm belief or conviction that
termination of the mother’s parental rights is in the best interest of the children. See
J.F.C., 96 S.W.3d at 266. We overrule the mother’s first issue.
II. The trial court did not abuse its discretion by appointing the Department
sole managing conservator of Amy.
In her second issue the mother argues that the court abused its discretion by
appointing the Department as Amy’s sole managing conservator. Under our abuse-
of-discretion standard, we will reverse a trial court’s appointment of a nonparent as
sole managing conservator only if we determine that it is arbitrary or unreasonable
or without evidentiary support. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re
R.L., No. 01-16-00851-CV, 2017 WL 1496955, at *12 (Tex. App.—Houston [1st
Dist.] Apr. 21, 2017, no pet.). A trial court does not abuse its discretion if it bases its
decision on conflicting evidence, so long as some evidence of a substantive and
probative character supports its decision. See Unifund CCR Partners v. Villa, 299
S.W.3d 92, 97 (Tex. 2009).
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The primary consideration in determining issues of conservatorship and
possession of and access to a child is always the child’s best interest. See TEX. FAM.
CODE § 153.002; J.A.J., 243 S.W.3d at 616. “A managing conservator must be a
parent, a competent adult, the Department of Family and Protective Services, or a
licensed child-placing agency.” TEX. FAM. CODE § 153.005(b); see J.A.J., 243
S.W.3d at 614. “[U]nless the court finds that appointment of the parent or parents
would not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional development, a parent
shall be appointed sole managing conservator or both parents shall be appointed as
joint managing conservators of the child.” TEX. FAM. CODE § 153.131(a).
“The trial court may render a final order appointing the Department as
managing conservator of the child without terminating the rights of the parent of the
child if the court finds that: (1) appointment of a parent as managing conservator
would not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional development; and (2) it
would not be in the best interest of the child to appoint a relative of the child or
another person as managing conservator.” Id. § 263.404(a). The court must consider
the following factors when determining whether the Department should be appointed
sole managing conservator of a child whose parent’s rights have not been terminated:
(1) whether the child will reach 18 years of age in not less than three years; (2)
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whether the child who is 12 years old or older has expressed a strong desire against
termination or being adopted; and (3) the needs and desires of the child. Id.
§ 263.404(b).
In this case, the evidence showed that appointing the mother as managing
conservator of Amy would significantly impair her physical health or emotional
development because the mother was unable to demonstrate that she could provide
a safe and stable home and avoid the use of cocaine and other illegal substances like
methamphetamine. The mother’s repeated failure to visitations caused Amy
emotional harm.
In addition, Walker and Ruhlin both testified to the efforts made to place Amy
with a relative. They investigated more than seven potential placements including
aunts, grandparents, and fictive kin in both Texas and California. Not only did they
investigate relatives and family friends identified by the mother, they also
investigated any names supplied by Amy. Some relatives were unable due to health
or other concerns to take Amy, others were disqualified by their criminal history or
prior involvement with Child Protective Services, and others were rejected because
they were not biological relatives and they had no preexisting relationship with Amy.
The record indicates that Amy was nearly 16 years old at the time of trial, and
that she had requested an opportunity to speak privately with the trial court judge
about her wishes. The record indicates that, although Amy had made some poor
22
choices, her needs for support, discipline, structure, and nurturing were being met
by her foster mother who wanted to continue caring for Amy as either a foster or an
adoptive mother.
We conclude that the trial court did not abuse its discretion by appointing the
Department as sole managing conservator because its decision was not arbitrary or
unreasonable and was based on evidence. We overrule the mother’s second issue.
Conclusion
We affirm the decree of the trial court.
Peter Kelly
Justice
Panel consists of Chief Justice Radack and Justices Kelly and Goodman.
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