COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00070-CV
IN THE INTEREST OF B.N.H. AND J.D.H., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION 1
I. Introduction
Appellant K.A.H. (Mother) appeals the trial court’s judgment terminating
her parental rights to two of her children, B.N.H. and J.D.H. In one issue, Mother
argues that the evidence is legally and factually insufficient to support the trial
1 See Tex. R. App. P. 47.4. court’s finding that termination of her parental rights is in the children’s best
interest. 2 We affirm.
II. Background
At the time of trial, B.N.H. was four years old, and J.D.H. was one year old.
J.C.O. is the alleged biological father of B.N.H., and M.D. is the alleged biological
father of J.D.H. Neither of the children’s fathers attended the trial, nor are they
parties to this appeal. Mother testified that she had last seen M.D. while she was
pregnant with J.D.H. but did not know how to contact him. Mother testified that
she had not seen J.C.O. since B.N.H. was one year old and did not know how to
contact him either.
Mother testified that she has four children. Her oldest child, S.L.M.Y., is
eleven years old and has lived with her grandparents since she was one year
old. Mother’s youngest child is D.D.G. Mother’s boyfriend R.J.G. is D.D.G.’s
biological father, and D.D.G. was about four months old at the time of trial.
Neither S.L.M.Y. nor D.D.G. is involved in this case.
Mother testified that she lives in her stepmother P.H.’s home in Fort Worth
with P.H. and R.J.G. A friend of Mother’s was also living in the home at the time
of trial but did not plan to stay permanently. Mother testified that she and the
2 Mother does not challenge the sufficiency of the evidence to support the trial court’s findings under family code section 161.001(1). See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N), (O), and (P) (West Supp. 2012). We therefore do not address them. See Tex. R. App. P. 47.1.
2 children would live in P.H.’s house with her, P.H., and R.J.G. if the children were
returned to her. The house has three bedrooms.
Mother testified that she and R.J.G. had been in a relationship for
approximately two years. Mother testified that R.J.G. was in jail at the time of
trial for a probation violation and that the underlying offense was theft. Mother
testified that she wanted R.J.G. to be around the children after he was released
from jail. Mother acknowledged knowing that R.J.G. had served time in the
penitentiary but did not know how many times he had been in jail or the date of
his convictions. 3 She testified, though, that R.J.G. was changing for the better for
her children.
Mother testified that she had smoked methamphetamine about two months
before the trial but that she had not told R.J.G. about it because she believed he
would leave her. Mother agreed that R.J.G. also had a history of smoking
methamphetamine but testified that he had stopped. She also testified that
R.J.G.’s positive drug tests were caused by amphetamines in his seizure
medication. Mother denied that R.J.G. was smoking methamphetamine in
addition to taking his seizure medication but recalled having attended a court
hearing in which R.J.G. may have testified that he was still using drugs.
Mother admitted that her youngest child, D.D.G., had tested positive for
methamphetamine at birth. Mother testified that B.N.H. and J.D.H. were
3 Mother also testified that P.H. had served time in the penitentiary years earlier for selling drugs but that P.H. no longer used drugs.
3 removed from her care on April 3, 2012, and that she used methamphetamine
“every day” between their removal and D.D.G.’s birth on October 14, 2012.
Mother testified that she believed her children were removed from her in April
2012 because of the drugs in her and R.J.G.’s system. She and R.J.G. both
tested positive for methamphetamine at the time and both admitted
methamphetamine use.
Mother acknowledged that the Department had done the right thing by
placing B.N.H. and J.D.H. in foster care. She testified that she had twice
proposed her brother as a placement for all three of her youngest children but
had been told no, and Mother admitted that she did not know her brother’s last
name and had not seen him in about a year.
Mother testified that she had received a family service plan after the
children were removed and that she had started drug rehabilitation about a
month before trial. Mother had also been to Recovery Resource for a drug
assessment just before her children were removed. Recovery Resource
recommended inpatient treatment for Mother because she was pregnant with
D.D.G. at the time, but Mother did not undergo inpatient treatment. Recovery
Resource recommended outpatient treatment for R.J.G., but he did not seek drug
treatment.
Mother has not participated in individual counseling; Mother testified that
she had called but that Merit Family Services “blew [her] off for a long time.”
Mother testified that she was unable to do all the things being asked of her
4 because of R.J.G.’s incarceration, P.H.’s health issues, and her own head injury
and brain surgery. Mother admitted, however, that she had not asked her
caseworker for transportation assistance and testified that she did not know she
could ask for that type of help. Mother also testified that neither she nor R.J.G.
had participated in parenting classes as required by the service plan.
Mother’s service plan also required weekly visits with the children, and
Mother complained about being asked to arrive very early for the visits. Mother
agreed, though, that she had been asked to arrive early because of how often
she had been late. Mother testified that it was difficult for her to arrive on time for
visits because of how tired she was; she had been working very hard to clean
P.H.’s house in order to get her children back. In that regard, Mother identified
three color pictures of P.H.’s house that were taken the day B.N.H. and J.D.H.
were removed. Mother admitted that the home was full of boxes, that there was
a “trail” between the boxes to walk through, and that she and R.J.G. had been
sleeping in the living room because that was the only empty room. Mother
agreed that the home was not a safe place for her children at the time but
testified that she had cleaned it up since the pictures were taken.
Mother testified that her brain surgery was eight years earlier, that she had
been hit on the head with a whiskey bottle, and that she had bleeding on her
brain. Mother testified that she has, since that time, suffered from memory loss
and migraines and that her health issues have affected her ability to complete
her service plan. Mother testified that she is not able to proactively complete the
5 tasks in her service plan because of her brain injury, that she needs someone to
push her along through the process, and that she would like more time to do
what is needed to get her children back. Mother testified that she talks with her
biological mother and her brother occasionally but that she does not have many
family resources available to her. P.H. helps however she can but has her own
limitations.
Mother testified that she cannot get a job because she has difficulty
comprehending the tasks assigned to her. She also testified that she cannot
read or write because of a learning disability. She completed the eighth grade in
school but never learned to read. When she had her children, she received WIC
and food stamps, but she does not currently have a job or any bills that she is
responsible for paying. Even so, Mother testified that she has the mental ability
to care for her children and that she would apply for medication and government
assistance to help her with her disability and financial situation. Mother testified
that she had not tried to do that in the past because she was “messed up on
drugs.” Mother also testified that she knew her children had been removed
because of her drug use and not because of her disability.
Mother denied having ever used drugs in front of B.N.H. but also testified
that she would not want her children to be in the care of someone with a long
history of drug abuse. Mother admitted that she was herself a drug user, but she
testified that she was trying to improve for her children, that she absolutely does
not want to lose them, and that she wants to do right by them. Mother testified
6 that she wants to stop using drugs and that she understands how important it is
for her and her children for her to stop. Mother also testified that if she had to,
she would choose her children over R.J.G. even though she loves R.J.G. very
much. Mother testified that she needs serious help and that she would do
whatever the Department wanted her to do to get her children back, including
inpatient rehabilitation.
Tonyia Brown testified that she is the Department conservatorship worker
for B.N.H. and J.D.H. She is also assigned to the separate case involving D.D.G.
Brown testified that she agreed with Mother’s testimony about Mother’s lack of
progress toward completing the service plan. Brown also testified that the
Department had determined just prior to removal of the children that there was
reason to believe that the children had been neglectfully supervised by Mother
and R.J.G. and had been physically neglected by Mother, R.J.G., and P.H.
Brown testified that B.N.H. and J.D.H. are doing “really well” in their current
foster placement, that the children are healthy and do not have behavioral
problems, and that the Department planned for the children to be adopted by one
of the foster parents. Brown testified that Mother’s ongoing drug use and inability
to provide a safe and stable living environment were concerning to her and that
the foster parents could provide a safe home and care for the children’s
emotional and physical needs. The Department also has programs available to
assist the foster parent if adoption were granted in the future.
7 Brown agreed that Mother appears to love her children and that Mother
had not, to her knowledge, beaten the children, given them drugs or alcohol, or
left them alone in the street. Brown admitted having not recently seen the home
where Mother lives and thus did not know whether Mother had cleaned it, but
Brown testified that Mother’s drug use was the primary reason that justified
termination of Mother’s parental rights. Brown also testified that, except for the
drug use, Mother could be a good mother to the children. In response to a
question by the trial court to Brown, Brown stated that Mother’s last positive drug
test was January 8, 2013, the month before the termination trial.
III. Standard of Review
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2008); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 & n.1 (Tex.
2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–
92 (1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. Id. at 563; Holick, 685
S.W.2d at 20–21.
8 Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001, § 161.206(a). Due process
demands this heightened standard because “[a] parental rights termination
proceeding encumbers a value ‘far more precious than any property right.’” E.R.,
385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397);
In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243 S.W.3d 611,
616 (Tex. 2007) (contrasting standards for termination and conservatorship).
Evidence is clear and convincing if it “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 2008).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001; In re J.L., 163
S.W.3d 79, 84 (Tex. 2005). Both elements must be established; 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); In
re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on
reh’g).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that termination is in the child’s best
9 interest. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the
evidence in the light most favorable to the finding and judgment. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the
finding. Id. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,
574. And even when credibility issues appear in the appellate record, we defer
to the factfinder’s determinations as long as they are not unreasonable. Id. at
573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that
termination of the parent-child relationship would be in the best interest of the
child. Tex. Fam. Code Ann. § 161.001(2); In re C.H., 89 S.W.3d 17, 28 (Tex.
2002). If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction in the truth
10 of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at
108.
IV. Best Interest of the Children
Mother argues in her sole issue 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. See Tex. Fam. Code Ann. § 161.001(2)
(requiring clear and convincing evidence “that termination is in the best interest of
the child”).
A. Applicable Law
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2008).
Nonexclusive factors that the trier of fact in a termination case may use in
determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
11 (F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).
These factors are not exhaustive; some listed factors may be inapplicable to
some cases; other factors not on the list may also be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just
one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
B. Discussion
In a consolidated argument, Mother contends that the evidence concerning
the children’s best interest is legally and factually insufficient. She argues that
there is no evidence concerning the children’s desires and that there was
insufficient evidence concerning the children’s emotional and physical needs now
and in the future or concerning the stability of her proposed home for the
children. Mother points to evidence that she had been in drug rehabilitation for a
month prior to trial, that she had been visiting the children, and that she had two
bedrooms available in P.H.’s home for the children to live. We note that there is
12 also evidence that Mother had worked to clean up P.H.’s home and that Mother
expressed during her testimony that she would do whatever was necessary to
get her children back.
While the evidence that Mother relies on is favorable to her, it reveals only
a recent improvement in her potential ability to parent the children. In that
regard, the factfinder is not required to ignore a long history of irresponsible
choices simply because the behavior abated as trial approached. See In re
J.O.A., 283 S.W.3d 336, 346–47 (Tex. 2009) (providing that even significant
evidence of improved conduct, especially in short duration, does not conclusively
negate the probative value of a history of irresponsible choices); In re M.G.D.,
108 S.W.3d 508, 513–14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)
(providing that evidence of a recent turnaround should be determinative only if it
is reasonable to conclude that the positive improvements will surely continue).
Here, Mother’s testimony and the pictures of P.H.’s home from the time of the
children’s removal establish that P.H.’s home was filthy and so cluttered that the
rooms had only a trail between boxes to walk from room to room and that the
kitchen sink was unusable because of the debris piled on top of it. Mother also
admitted that she and R.J.G. had used methamphetamine and that she had
smoked methamphetamine every day between April 2012 and October 2012.
Indeed, D.D.G. was born with methamphetamine in his system, and Mother
tested positive for methamphetamine just weeks before the termination trial. See
In re T.D.L., No. 02-05-00250-CV, 2006 WL 302126, at *9–10 (Tex. App.—Fort
13 Worth Feb. 9, 2006, no pet.) (mem. op.) (holding evidence legally and factually
sufficient to support best-interest finding and noting dirty condition of home, the
mother’s continual drug abuse, and the mother’s failure to complete service
plan). Moreover, Mother initially testified that she planned for the children to live
in P.H.’s home with her, P.H., and R.J.G. But R.J.G. was in jail at the time of trial
as a result of a theft conviction, had previously served time in the penitentiary for
a felony conviction, and had not completed any of the tasks assigned to him by
the service plan. See In re M.L.S., No. 11-12-00042-CV, 2012 WL 2371042, at
*4–5 (Tex. App.—Eastland June 21, 2012, no pet.) (mem. op.) (holding best-
interest evidence legally and factually sufficient and noting the mother’s
testimony that it was in the children’s best interest to live with the mother and the
mother’s boyfriend, who had a criminal and CPS history). Mother also did very
little toward completing her service plan and admitted that doing so was difficult
for her because of her brain injury, learning disability, and responsibilities of
caring for herself, R.J.G., and P.H. See T.D.L., 2006 WL 302126, at *9 (noting in
best-interest analysis the mother’s failure to complete her service plan other than
attending a few parenting classes).
In contrast to Mother’s history with the children, the evidence reflects that
the foster parents caring for the children have a safe, stable home and wish to
adopt the children. The children are healthy, have no behavioral problems, and
are doing well in the foster home.
14 Viewing the evidence in the light most favorable to the verdict, we
conclude that the evidence is such that the factfinder could reasonably form a
firm belief or conviction that termination of Mother’s parental rights is in the
children’s best interest. See J.P.B., 180 S.W.3d at 573. We also conclude,
viewing all the evidence in a neutral light, that the factfinder could reasonably
form a firm conviction or belief that termination is in the children’s best interest.
See H.R.M., 209 S.W.3d at 108. We therefore hold that the evidence supporting
the trial court’s best-interest finding is legally and factually sufficient to support
the judgment, and we overrule Mother’s sole issue.
V. Conclusion
Having overruled Mother’s sole issue, we affirm the trial court’s judgment.
ANNE GARDNER JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: August 1, 2013