in the Interest of B.P. Jr.

• Court: Court of Appeals of Texas
• Decided: June 24, 2021
• Docket: 09-21-00038-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00038-CV __________________

IN THE INTEREST OF B.P. JR.

__________________________________________________________________

On Appeal from the 279th District Court Jefferson County, Texas Trial Cause No. F-230,174-A __________________________________________________________________

MEMORANDUM OPINION

M.P. 1 appeals the trial court’s order terminating her parental rights. In five

issues, M.P. challenges the legal and factual sufficiency of the evidence supporting

the best-interest finding and the finding that she has a mental or emotional illness

that renders her unable to provide for the child, as well as the termination grounds

specified in sections 161.001(b)(1)(D), (E), and (O). See Tex. Fam. Code Ann.

1 To preserve the privacy of the parties, we refer to the parties and the child by their initials. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8. 1 §§ 161.001(b)(1)(D), (E), (O), (2); 161.003(a). We affirm the trial court’s judgment

terminating M.P.’s parental rights.

BACKGROUND

In January 2020, the Department of Family and Protective Services (“the

Department”) filed a petition seeking the termination of M.P.’s parental rights to her

son, B.P. Jr. The trial court conducted a bench trial on the Department’s

petition. Stephanie McGlory, a Department caseworker, testified that in January

2020, the Department took temporary managing conservatorship of B.P. Jr. after

receiving a referral alleging the neglectful supervision of B.P. Jr. by M.P. McGlory

testified that the removal affidavit indicated that B.P. Jr.’s school was concerned that

he had been absent and tardy to school numerous times because M.P. was taking

medication and not getting up on time to bring B.P. Jr. to school. McGlory explained

that during the investigation, B.P. Jr. reported that there were roaches in his home,

his home was cold, and that M.P. was sleeping in her recliner. McGlory testified that

when she met with M.P. at the home, she observed that the home had a plywood

floor, a mattress in the hallway, and was cluttered with piles of clothes. According

to McGlory, M.P. reported that she was behind on rent and had little to no income.

McGlory explained that M.P. blamed B.P. Jr., who was five years old, for

allowing her to oversleep. McGlory testified that M.P. reported that she took

Wellbutrin for depression on an inconsistent basis and that she was taking her sister’s

2 medication without a doctor’s approval, which was causing her to sleep through her

alarm. McGlory further testified that M.P. admitted to using marijuana and to

recently smoking methamphetamine. According to McGlory, the Department was

previously involved with M.P. in January 2017, when there were concerns about

B.P. Jr. being unsupervised and unattended, and B.P. Jr. was left in the care of his

father after M.P. was placed in a behavioral unit for attempting suicide and testing

positive for methamphetamine.

McGlory testified that M.P.’s recent psychological report by Dr. Nisha Amin,

a licensed psychologist, indicated that M.P. had Bipolar I disorder, generalized

anxiety disorder, a substance abuse disorder, a cannabis use disorder, and an

unspecified personality disorder with schizoid traits. McGlory testified that Amin

reported that M.P. lacked the motivation to seek psychiatric care, as well as the

necessary responsibilities to maintain a self-sufficient adult lifestyle. According to

McGlory, Amin reported that M.P. needed regular evaluations and would benefit

from psychopharmacological intervention, but McGlory testified that Amin

indicated that the prognosis was poor that M.P. would maintain long-term

psychiatric care. McGlory explained that M.P. had a history of not addressing her

mental health issues, and M.P. did not seek help until the end of her case. McGlory

also testified that M.P. has a history of self-medicating with illegal drugs, using other

people’s prescriptions, and failing to follow recommended dosages.

3 McGlory explained that a Family Plan of Service was developed for M.P. to

address the issues that caused the Department to take B.P. Jr. into care, and McGlory

went over the plan with M.P. According to McGlory, M.P. did not comply with her

plan because she failed to maintain employment, to provide an appropriate home for

B.P. Jr. to return to, to submit to drug testing, and refrain from using drugs. McGlory

explained that M.P. tested positive six times and never stopped using amphetamines,

methamphetamines, and marijuana. According to McGlory, although M.P.

completed some of her services, M.P. had not demonstrated a lifestyle change, and

M.P. had also been in contact with B.P. Jr.’s father, who was arrested for domestic

violence charges committed against M.P.

McGlory further testified that she had reunification concerns based on M.P.’s

behavior. According to McGlory, M.P. has public health risks, and within the past

three to six months, M.P. may have been exposed to HIV, hepatitis, and sexually

transmitted diseases. McGlory testified that M.P. had reported being depressed for

weeks at a time and having thoughts of harming or killing herself, and McGlory

explained that while M.P. had volunteered to go to inpatient treatment, she left the

treatment facility after only a few days. McGlory further testified that it was in the

best interest of B.P. Jr. that M.P.’s rights be terminated and to leave B.P. Jr. in the

care of relatives who are willing to provide a permanent home for him. According

4 to McGlory, B.P. Jr. has stability in his current placement and no longer misses

school.

Kelly Webster, the court coordinator for the family treatment court, testified

that M.P. took an assessment for drug court and attended a couple of relapse

prevention meetings, but M.P. was never formally accepted into the program

because she stopped participating. Schrietta Henson, a supervisor with the

Department, testified that it was in B.P. Jr.’s best interest that M.P.’s rights be

terminated because M.P., having had sufficient time to complete her family service

plan, failed to do so. According to Henson, it is in the best interest of B.P. Jr. to

remain in his current placement where his needs are being met.

M.P. testified that there were “[n]ot very many” days when she was drug free

during the case, but M.P. explained that she planned to enter inpatient treatment the

next day. M.P. explained that she had been using drugs for about thirty-three years

and had never been in a drug treatment program. M.P. testified that she did not

believe that B.P. Jr. should currently be placed with her, but M.P. explained that she

planned to get sober and provide B.P. Jr. a suitable home in the future. M.P. testified

that “I made up my mind, and I want my son[,]” and M.P. asked for one more chance.

M.P. further testified that she would consider relinquishing her rights to B.P. Jr. so

he could have financial security and the things that he deserved, but the following

day, M.P. chose to move forward with the trial and went to a drug treatment facility.

5 According to M.P., if she were tested on the date of the trial, she would test positive

for drugs because she smoked marijuana the night before because she “already knew

I was gonna lose my kid.”

The trial court found that clear and convincing evidence supported three

predicate statutory grounds for terminating M.P.’s parental rights, that termination

of M.P.’s parental rights was in the best interest of B.P. Jr., and that M.P. has a

mental or emotional illness that, in all probability, will continue to render her unable

to provide for B.P. Jr.’s needs until B.P. Jr.’s eighteenth birthday. See id. M.P.

appealed.

ANALYSIS

In issue one, M.P. contends that the evidence was legally and factually

insufficient to support termination of her parental rights under section

161.001(b)(1)(D) of the Family Code, and in issue two, M.P. argues that the

evidence was legally and factually insufficient to support termination under section

161.001(b)(1)(E). See id. § 161.001(b)(1)(D), (E). In issue three, M.P. challenges

the legal and factual sufficiency of the evidence supporting termination of her

parental rights under section 161.001(b)(1)(O). See id. § 161.001(b)(1)(O). In issue

four, M.P. contends that the evidence was legally and factually insufficient to

demonstrate that termination of her parental rights is in B.P. Jr.’s best interest. See

id. § 161.001(b)(2). In issue five, M.P. contends that the evidence was legally and

6 factually insufficient to support the trial court’s finding that she has a mental

or emotional illness that renders her unable to provide for B.P. Jr. See id. §

161.003(a). We address issues one through five together.

Under legal sufficiency review, we review 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 the Interest of J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could, and we disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

incredible. Id. If no reasonable factfinder could form a firm belief or conviction that

the matter that must be proven is true, the evidence is legally insufficient. Id.

Under factual sufficiency review, we must determine whether the evidence is

such that a factfinder could reasonably form a firm belief or conviction about the

truth of the Department’s allegations. Id. We give due consideration to evidence that

the factfinder could reasonably have found to be clear and convincing. Id. We

consider whether disputed evidence is such that a reasonable factfinder could not

have resolved that disputed evidence in favor of its ruling. 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, the evidence is factually insufficient. Id.

7 The decision to terminate parental rights must be supported by clear and

convincing evidence, i.e., “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; In the Interest of J.L.,

163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the parent committed

one or more predicate acts or omissions and that termination is in the child’s best

interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); see also In the Interest of

J.L., 163 S.W.3d at 84. We will affirm a judgment if any one of the grounds is

supported by legally and factually sufficient evidence and the best-interest finding

is also supported by legally and factually sufficient evidence. In the Interest of

C.A.C., Jr., No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont

May 5, 2011, no pet.) (mem. op.). However, when, as here, a parent challenges a

trial court’s findings under section 161.001(b)(1)(D) or (E), we must review the

sufficiency of the evidence supporting those grounds as a matter of due process and

due course of law. In the Interest of N.G., 577 S.W.3d 230, 235 (Tex. 2019).

Section 161.001(b)(1)(D) of the Family Code allows for termination of a

parent’s rights if the trier of fact finds by clear and convincing evidence that the

parent has “knowingly placed or knowingly allowed the child to remain in conditions

or surroundings which endanger the physical or emotional well-being of the child[.]”

Tex. Fam. Code Ann. § 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for

8 termination if the trier of fact finds by clear and convincing evidence that the parent

has “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[.]” Id.

§ 161.001(b)(1)(E). “[A] parent’s use of narcotics and its effect on his or her ability

to parent may qualify as an endangering course of conduct.” In the Interest of J.O.A.,

283 S.W.3d 336, 345 (Tex. 2009). A parent’s conduct in the home can create an

environment that endangers the child’s physical and emotional well-being. In the

Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no

pet.). “The factfinder may infer from past conduct endangering the child’s well-

being that similar conduct will recur if the child is returned to the parent.” In the

Interest of M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.).

For purposes of subsection (E), endangerment means to expose the child to

loss or injury or to jeopardize a child’s emotional or physical health. Id.; In the

Interest of M.L.L., 573 S.W.3d 353, 363 (Tex. App.—El Paso 2019, no pet.).

Termination under subsection (E) must be based on more than a single act or

omission and requires a voluntary, deliberate, and conscious course of conduct by

the parent. Interest of M.L.L., 573 S.W.3d at 363-64. A parent’s conduct that

subjects a child’s life to instability and uncertainty endangers the emotional or

physical well-being of a child. Id. at 363. Endangerment is not limited to actions

directed toward the child and includes the parent’s actions before the child’s birth

9 and while the parent had custody of older children, including evidence of drug

usage. In the Interest of J.O.A., 283 S.W.3d at 345.

Courts may consider whether a parent’s drug use continues after the child is

removed from the parent’s care, as such conduct shows a voluntary, deliberate, and

conscious course of conduct that endangers a child’s well-being. In the Interest of

J.S., 584 S.W.3d 622, 635 (Tex. App.—Houston [1st Dist.] 2019, no pet.); see In the

Interest of M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet.

denied). Evidence of a parent’s failure to comply with services to improve her

mental health is a factor that the trial court can consider in determining whether a

parent has engaged in a course of conduct that endangered the physical and

emotional well-being of a child. In the Interest of S.R., 452 S.W.3d 351, 365 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied). A parent’s untreated mental illness

can expose a child to endangerment, because when a parent fails to take required

medication, the parent can behave erratically and neglect the care of the child. See In

the Interest of P.H., 544 S.W.3d 850, 858 (Tex. App.—El Paso 2017, no pet.).

The trial court heard evidence that M.P. had a history with the Department

and that there were concerns that B.P. Jr. was being unsupervised and unattended by

M.P., who could not wake up to take B.P. Jr. to school due to M.P.’s abuse of

medication and illegal drugs. The trial court heard that M.P. has a thirty-three-year

history of abusing drugs, and that throughout the case, M.P. continued to use

10 amphetamines, methamphetamines, and marijuana. The trial court also heard M.P.’s

admission that she would test positive on the last day of trial.

The trial judge heard evidence that M.P. has Bipolar I disorder, generalized

anxiety disorder, an unspecified personality disorder with schizoid traits, and she

needed regular evaluations and psychopharmacological intervention. The trial court

also heard that M.P.’s prognosis for maintaining long-term psychiatric care was poor

due to her history of not addressing her mental health issues and lack of motivation

to seek psychiatric care. The trial court further heard that M.P. has a history of self-

medicating with illegal drugs, using other people’s prescriptions, and failing to

follow recommended dosages. The trial court considered evidence that M.P. has a

history of attempting suicide and had reported being depressed and having thoughts

of killing herself. The trial court also considered evidence that M.P. has public health

risks due to recent exposure to people who may have had HIV, hepatitis, and

sexually transmitted diseases.

The trial judge heard evidence that M.P. failed to complete her services and

had not maintained employment or provided an appropriate home to which B.P. Jr.

could return. The trial court also heard evidence that M.P. lacked the ability to

maintain a self-sufficient adult lifestyle and had failed to demonstrate a lifestyle

change.

11 Viewing the evidence in the light most favorable to the trial judge’s findings,

we conclude that the trial judge could reasonably have formed a firm belief or

conviction that M.P. knowingly placed or knowingly allowed B.P. Jr. to remain in

conditions or surroundings which endangered his physical or emotional well-being

and engaged in conduct or knowingly placed B.P. Jr. with persons who engaged in

conduct that endangered B.P. Jr.’s physical or emotional well-being. See Tex. Fam.

Code Ann. § 161.001(b)(1)(D), (E); In the Interest of J.F.C., 96 S.W.3d at 266; In

the Interest of J.O.A., 283 S.W.3d at 345; In the Interest of J.S., 584 S.W.3d at

635; Interest of M.L.L., 573 S.W.3d at 363; In the Interest of P.H., 544 S.W.3d at

858; In the Interest of S.R., 452 S.W.3d at 365; In the Interest of M.R.J.M., 280

S.W.3d at 502; In the Interest of J.T.G., 121 S.W.3d at 125.

Regarding the best-interest inquiry, we consider a non-exhaustive list of

factors: (1) the desires of the child; (2) emotional and physical needs of the child

now and in the future; (3) emotional and physical danger to the child now and in the

future; (4) parental abilities of the individuals seeking custody; (5) programs

available to assist these individuals to promote the best interest of the child; (6) plans

for the child by these individuals or by the agency seeking custody; (7) stability of

the home or proposed placement; (8) acts or omissions of the parent which may

indicate that 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

12 (Tex. 1976); see Tex. Fam. Code Ann. § 263.307(b). No particular Holley factor is

controlling, and evidence of one factor may be sufficient to support a finding that

termination is in a child’s best interest. In the Interest of A.P., 184 S.W.3d 410, 414

(Tex. App.—Dallas 2006, no pet.). The best-interest determination may rely on

direct or circumstantial evidence, subjective facts, and the totality of the evidence.

In the Interest of N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.).

“A parent’s drug use, inability to provide a stable home, and failure to comply

with a family service plan support a finding that termination is in the best interest of

the child.” In the Interest of M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth

2007, no pet.). Evidence of a parent’s continued drug use supports a finding that she

poses a present and future risk of physical or emotional danger to the child and that

termination would be in the child’s best interest. See In the Interest of S.N., 272

S.W.3d 45, 53 (Tex. App.—Waco 2008, no pet.). The impact of a parent’s mental

illness on her ability to parent and the stability of the home are also relevant facts in

the best-interest analysis. In the Interest of R.J., 579 S.W.3d 97, 118 (Tex. App.—

Houston [1st Dist.] 2019, pet. denied). A parent’s potential failure to continue taking

medication prescribed for mental illness is also a factor in the analysis of best

interest. See id.; Adams v. Tex. Dep’t of Family & Protective Servs., 236 S.W.3d

271, 281 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

13 With respect to the best interest of B.P. Jr., the trial court heard evidence that

M.P. (1) used marijuana and methamphetamine while B.P. Jr. was living with her,

(2) continued to use amphetamines, methamphetamines, and marijuana throughout

the case, (3) has a history of not addressing her mental health issues and of using

other people’s prescriptions and failing to follow recommended dosages, (4) lacked

motivation to seek psychiatric care and a had a poor prognosis of maintaining long-

term care, (5) has public health risks and reported having suicidal thoughts, (6) failed

to complete her family service plan and lacked the necessary responsibilities to

maintain a self-sufficient adult lifestyle, (7) failed to maintain employment or

provide an appropriate home to which B.P. Jr. could return, and (8) B.P. Jr. is having

his needs met and has stability in his current placement which is willing to provide

a permanent home.

Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. See Tex. Fam. Code Ann. § 263.307(a).

As the sole judge of the credibility of the witnesses and the weight to be given to

their testimony, the trial court could reasonably conclude that termination of M.P.’s

parental rights is in B.P. Jr.’s best interest. See id. §§ 161.001(b)(2), 263.307(a); see

also In the Interest of J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72; In

the Interest of T.L.B., Jr., No. 01-16-00806-CV, 2017 WL 1019520, at *11 (Tex.

App.—Houston [1st Dist.] Mar. 16, 2017, no pet.) (mem. op.); In the Interest of S.N.,

14 272 S.W.3d at 53; In the Interest of M.R., 243 S.W.3d at 821; In the Interest of R.J.,

579 S.W.3d at 118; Adams, 236 S.W.3d at 281.

We conclude that the Department established, by clear and convincing

evidence, that M.P. committed the predicate acts enumerated in sections

161.001(b)(1)(D) and (E) and that termination of M.P.’s parental rights is in the best

interest of B.P. Jr. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (2); In the

Interest of C.A.C., Jr., 2011 WL 1744139, at *1. Accordingly, we overrule issues

one, two, and four. Having concluded that the evidence was legally and factually

sufficient to support the trial court’s findings as to subsections 161.001(b)(1)(D),

(E), and (2), we need not reach issues three and five, in which M.P. challenges the

sufficiency of the evidence supporting the trial court’s findings under

sections 161.001(b)(1)(O) and section 161.003(a). See In the Interest of N.G., 577

S.W.3d at 235; In the Interest of C.A.C., Jr., 2011 WL 1744139, at *1; see also Tex.

R. App. P. 47.1. Having overruled each of M.P.’s issues, we affirm the trial

court’s judgment terminating M.P.’s parental rights.

AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice Submitted on June 1, 2021 Opinion Delivered June 24, 2021

Before Golemon, C.J., Kreger and Horton, JJ.