COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-10-00475-CV
IN THE INTEREST OF C.S.L.E.H. AND C.H.H., JR., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
I. INTRODUCTION
Appellant C.H. Sr. (Father) appeals from the order terminating his parental
rights to his children, C.S.L.E.H. and C.H.H. Jr. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Father is the alleged biological father of C.S.L.E.H. and C.H.H. Jr.
C.S.L.E.H. was born in April 2005, and C.H.H. Jr. was born in July 2007. Both
children tested positive for cocaine at birth.
1 See Tex. R. App. P. 47.4. The children’s biological mother, T.A., admitted to using drugs during her
pregnancies and to having a long history of drug abuse. She was unable to
rehabilitate and maintain sobriety, so the trial court terminated her parental rights
in December 2008. The court declined to terminate Father’s rights at that time.
Prior to her rights being terminated, T.A. primarily cared for the children.
Although Father did not live with the children, he saw them regularly before
Appellee Texas Department of Family Protective Services’ (TDFPS) Child
Protective Services (CPS) unit removed the children and placed them in a foster
home in November 2007. Father was involved with T.A. for a number of years
and was ―vaguely‖ aware of her drug abuse before CPS removed the children.
CPS caseworker Penny Smith received a referral related to C.H.H. Jr.’s
birth in July 2007. In an attempt to avoid removal and foster care, Smith placed
the children with T.A.’s oldest daughter as part of a safety plan. Smith said that
CPS did not place the children with Father because he never responded to her
attempts to contact him and because he was previously convicted of aggravated
possession of a controlled substance. Smith also declined to place the children
with their paternal grandmother because Smith suspected that Father was living
with her. Smith contacted Father for placement suggestions, but he never
responded.
In November 2007, Paula Rietz, a Program Director at CPS, received a
referral that the children may have been physically abused and neglected. She
then discovered that the children were not residing with their adult sister as
2 designated by the safety plan. The children were instead residing with a woman
not named in the safety plan, whom CPS determined to be an unsuitable
caregiver. Rietz communicated with Father during the removal process but
excluded him as a placement option because he refused to take a drug test. In
her last efforts to avoid removal, Rietz asked Father and T.A. for additional family
members that might be able to keep the children. Father gave Rietz his sister’s
name, but Rietz was unable to locate her, and T.A. did not provide Rietz with any
names.
While T.A. admitted to having a drug problem, Father denied having any
substance abuse problems of his own. Father began using heroin (his primary
drug of choice) at age eighteen, and he admitted to using it as recently as June
2009. Father also admitted to using cocaine (his secondary drug of choice) in
December 2007 and May 2008. Even though Father insisted that he did not
have a drug problem, CPS caseworker Abigail Flores suggested that Father take
a drug assessment and follow its recommendations, namely drug rehabilitation
treatment.
In June 2008, Father received detox treatment at the Billy Gregory facility.
His treatment included doses of Suboxone, prescribed for heroin withdrawal
symptoms. Father then moved to the Pine Street facility for an inpatient drug
rehabilitation program. Father’s patient records indicated that he used heroin for
thirty-nine years and used heroin three to six times per week for the six months
prior to his admission to Pine Street. Father’s discharge summary, dated
3 September 2008, stated that ―client is chemically dependent on heroin, gets
easily frustrated when he fails to get his way and he lacks appropriate coping
skills.‖ As part of his relapse prevention plan, Father wrote down alternative
activities to mood-altering drugs and noted that heroin would kill him and prevent
him from being reunited with his two children.
Father testified at T.A.’s termination trial in September 2008 that he would
never use drugs again. But since then, Father has never tested negative for
drugs. Shortly after the September 2008 trial, Father tested positive for cocaine
and heroin in December 2008.
In January 2009, the trial court signed an order that set forth tasks that
Father agreed to perform in order to have his children returned. These tasks
included submitting to random drug testing. Six days after the court signed the
order, Father admitted cocaine use, and on January 13, he tested positive for
cocaine.
From February 2009 through December 2009, Father failed to attend four
separately scheduled drug tests after Flores personally told him to do so. In May
2009, November 2009, and August 2010, Father arrived at the testing facility but
was unable to provide a testable sample. After struggling to obtain a urine
sample from Father, CPS decided to take samples of Father’s hair. However,
this alternative method failed because Father had no hair.2
2 Father told CPS workers that he had no hair because he was Native American. However, Father identified himself as African-American and not
4 In January 2010, Father admitted to using cocaine and opiates and tested
positive for cocaine. In April 2010, Father tested positive for cocaine, codeine,
morphine, and heroin. In August 2010, Father was present for a random drug
test, but he refused an oral swab.
The tasks that Father was required to perform in order to regain custody of
his children also included paying $270 per month in child support. Father owed a
balance of $6,493.50 at the time of trial in December 2010. Father, however,
claims to have made the first two payments. He attributes his failure to make
further payments to his unemployment.
Although Father testified in the 2008 trial that at that time he worked at
least forty hours per week, he never provided proof of employment, despite
repeated requests from caseworkers. Father told Flores that he unloaded trucks
in Wichita Falls, but he never provided her with a pay stub, a phone number, or
even his employer’s name.
Father testified that he sustained a back, neck, and nerve injury in April
2009 that prevented him from working until the Fall of 2010. During the couple of
months before trial, during which Father was able to work, he did not go to any
specific employers or to the Texas Workforce Commission to find work. Father
testified that he went to a church that builds HUD homes and that he planned to
file for his own disability and Social Security from his late wife.
American Indian or Alaskan native when registering to receive treatment at MHMR. Father had hair at the time of trial.
5 The trial court’s 2009 temporary order further provided that Father
complete parenting classes. Father completed forty-two hours of parenting
classes before the 2008 trial, but he did not complete any parenting classes after
the 2009 order. Father testified that one set of classes was sufficient.
In response to Father’s failure to comply with the court order, among other
acts or omissions, TDFPS petitioned the trial court in January 2010 to terminate
his parental rights. The trial court terminated Father’s parental rights in
December 2010. This appeal followed.
III. BURDEN OF PROOF AND STANDARD OF REVIEW
A parent’s rights to ―the companionship, care, custody, and management‖
of his or her children are constitutional interests ―far more precious than any
property right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388,
1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights
are of constitutional magnitude, they are not absolute. Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.‖ In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. Holick v. Smith, 685
S.W.2d 18, 20–21 (Tex. 1985); In re R.R., 294 S.W.3d 213, 233 (Tex. App.—Fort
Worth 2009, no pet.).
6 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 (West Supp.
2010); 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).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (West 2008). 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.‖ Id.
§ 101.007 (West 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. 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
modification).
In evaluating the evidence for legal sufficiency in parental termination
cases, we must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. 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
7 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 573–74.
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 the
parent violated the relevant conduct provisions of section 161.001(1) and that the
termination of the parent-child relationship is in the best interest of the child. Tex.
Fam. Code Ann. § 161.001; C.H., 89 S.W.3d at 28. 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 of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
8 IV. EVIDENTIARY SUFFICIENCY—ENDANGERMENT
In his first issue, Father argues that the evidence is both legally and
factually insufficient to support the trial court’s family code section 161.001(1)(D)
and (E) endangerment findings.
Endangerment means to expose to loss or injury, to jeopardize. In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). The trial
court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has knowingly placed or knowingly allowed
the child to remain in conditions or surroundings that endanger the physical or
emotional well-being of the child. Tex. Fam. Code Ann. § 161.001(1)(D). Under
subsection (D), it is necessary to examine evidence related to the environment of
the child to determine if the environment was the source of endangerment to the
child=s physical or emotional well-being. In re D.T., 34 S.W.3d 625, 632 (Tex.
App.—Fort Worth 2000, pet. denied). A child is endangered when the
environment creates a potential for danger that the parent is aware of but
disregards. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009,
no pet.). Inappropriate, abusive, or unlawful conduct by persons who live in the
child’s home or with whom the child is compelled to associate on a regular basis
in his home is a part of the ―conditions or surroundings‖ of the child’s home under
section 161.001(1)(D). Id. Conduct of a parent in the home can create an
environment that endangers the physical and emotional well-being of a child.
J.T.G., 121 S.W.3d at 125.
9 The trial court may order termination of the parent-child relationship if it
finds by clear and convincing evidence that the parent has engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangers
the physical or emotional well-being of the child. Tex. Fam. Code Ann.
§ 161.001(1)(E). Under subsection (E), the relevant inquiry is whether evidence
exists that the endangerment of the child=s physical or emotional well-being was
the direct result of the parent=s conduct, including acts, omissions, and failures to
act. J.T.G., 121 S.W.3d at 125. Termination under subsection (E) must be
based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required. Id.; D.T., 34 S.W.3d at
634.
As a general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the child=s physical and emotional well-being. In re S.D.,
980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). To support a
finding of endangerment, the parent’s conduct does not necessarily have to be
directed at the child, and the child is not required to suffer injury. Boyd, 727
S.W.2d at 533. The specific danger to the child=s well-being may be inferred
from parental misconduct alone, and to determine whether termination is
necessary, courts may look to parental conduct both before and after the child=s
birth. Id.; In re D.M., 58 S.W.3d 801, 812–13 (Tex. App.—Fort Worth 2001, no
pet.). A factfinder may also infer from past conduct endangering the well-being
of the child that similar conduct will recur if the child is returned to the parent.
10 See In re D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied),
disapproved on other grounds by J.F.C., 96 S.W.3d at 256, and C.H., 89 S.W.3d
at 17. A parent’s engaging in illegal drug activity after agreeing not to do so in a
service plan for reunification with his children is sufficient to establish clear and
convincing proof of voluntary, deliberate, and conscious conduct that endangered
the well-being of his children. In re T.N., 180 S.W.3d 376, 383 (Tex. App.—
Amarillo 2005, no pet.).
Because the evidence pertaining to subsections 161.001(1)(D) and (E) is
interrelated, we conduct a consolidated review.3 See In re T.N.S., 230 S.W.3d
434, 439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126.
While Flores testified that she was concerned about Father’s stability because of
his inability to maintain employment, she stated that her primary concerns were
his cocaine and heroin use and his inability to provide a safe environment for the
children.
3 Although the trial court previously denied TDFPS’s petition to terminate Father’s rights, the family code allows us to consider evidence presented in favor of termination that was admitted at a previous hearing. See In re D.S., 333 S.W.3d 379, 386 (Tex. App.—Amarillo 2011, no pet.); see also Tex. Fam. Code Ann. § 161.004(b) (West 2008). TDFPS alleged in its first amended petition for termination in suit affecting the parent-children relationship ―that the circumstances of the child, sole managing conservator, or other party affected by the order denying termination on December 17, 2008, have materially and substantially changed since the date that order was rendered‖ and ―that [Father] has committed an act listed under Section 161.001 of the Texas Family Code before December 17, 2008.‖ Father did not challenge either of these allegations at trial, and he does not argue in his brief that the trial court could not consider evidence of his conduct before the 2008 denial of termination.
11 Father was convicted of aggravated possession of a controlled substance
in the late 1980s, for which he served time in prison. There is evidence that
Father used heroin and cocaine for over half of his life. Although Father
completed drug treatment in 2008, he admitted to using heroin in June 2009.
During TDFPS’s involvement with Father, he never provided proof of
employment or tested negative for drugs.
Father argues that many of his positive drug tests actually resulted from
his failure to appear for drug tests and from an inability of the testing site to
obtain a testable sample. But the evidence indicates that Father tested positive
for illegal substances four times after the children were removed in November
2007. Although Father attended drug rehabilitation in 2008 after his first three
positive drug tests, he admitted to relapsing and using heroin again in June 2009.
Father testified that two of the 2010 drug tests were inaccurate, but he provided
no reason for their alleged inaccuracy. 4 The trial court was the sole judge of
Father’s credibility, and his positive drug tests were evidence that he engaged in
conduct that endangered his children’s well-being. See T.N., 180 S.W.3d at 383.
Furthermore, the evidence indicates that Father failed to attend five
scheduled drug tests. Although Father testified that he attended four of the tests
that Flores said he had missed, he offered no explanation for why the tests were
4 Father did not challenge the three positive drug tests obtained prior to June 2009.
12 not recorded or performed.5 In judging the credibility of the witnesses, the trial
court could have reasonably inferred from Father’s failure to attend drug
screenings that he avoided the tests because he was using drugs. See In re
W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.); see also
J.P.B., 180 S.W.3d at 574.
Finally, there is evidence that Father was responsible for the testing site’s
occasional inability to obtain a testable sample. After CPS struggled to collect
Father’s urine sample, it decided to test Father’s hair. However, a testable hair
sample was unobtainable because Father had no hair. While Father told CPS
workers that he had no hair because he was Native American, he had previously
indicated on MHMR records that he was African-American. The trial court could
have interpreted Father’s repeated drug test refusals and his lack of hair at
testing times but having hair at trial as an indication that he was using illegal
drugs after the children’s removal, which is evidence demonstrating
endangerment. See Cervantes-Peterson v. Tex. Dep’t. of Family & Protective
Services, 221 S.W.3d 244, 253–54 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
Father argues that CPS is at fault for not clearly indicating its expectations
for his continued drug treatment and for not seeking to provide him with further
5 Father did state that his failure to perform one of the tests resulted from his daughter, who had given him a ride, needing to leave and thus shortening his visit.
13 drug treatment after his post-rehab positive drug tests. However, the focus of
this issue is whether Father’s conduct endangered the children, not the reasons
why he engaged in such conduct or what CPS could have done differently. Cf.
In re R.F., 115 S.W.3d 804, 810 (Tex. App.—Dallas 2003, no pet.) (noting that
mother’s continuing course of destructive behavior that endangered her children
may be attributed to, but could not be excused by, her sexual and physical abuse
as a child and acknowledging that CPS could have handled her case as a child
differently, but stating that mother did little to help herself). Also, Father admitted
at trial that he had written in his relapse prevention plan that using heroin again
could kill him and could also prevent him from achieving his goals of reunification
with his children. Furthermore, Flores testified that Father’s original service plan
(which included drug treatment) never expired, that he understood that he must
abide by it, and that CPS provided him with access to programs that could assist
him with his drug problem.
Father also argues that ―there was no evidence that [he] ever directly or
indirectly performed any act or omission that would constitute endangerment as
to the children.‖ He contends that the children did not reside with him and that
there is no evidence that he had used drugs while in the possession of the
children or that the children were ever neglected or abused as a result of any
drug use. To support a finding of endangerment, however, Father’s conduct did
not necessarily have to be directed at the children, and the children were not
required to suffer injury. See Boyd, 727 S.W.2d at 533. Father’s heroin and
14 cocaine use after TDFPS removed the children is sufficient to constitute
endangerment. See Cervantes-Peterson, 221 S.W.3d at 253–54.
Furthermore, although Father did not live with T.A. when C.H.H. Jr. was
born, Father testified that he visited the children at her house almost every day
and that he was vaguely aware of T.A.’s drug use.6 Thus, the trial court could
have considered Father’s failure to take action to protect his children from T.A.’s
drug abuse as sufficient evidence to establish that he knowingly allowed the
children to remain in conditions or surroundings that endangered their well-being.
See Edwards v. TDPRS, 946 S.W.2d 130, 138 (Tex. App.—El Paso 1997),
overruled on other grounds, J.F.C., 96 S.W.3d at 267 n.39.
Likewise, the trial court could have reasonably concluded that Father’s
prior drug conviction, his continued drug use, and his failure to maintain
employment established a course of conduct that endangered the well-being of
the children. See In re R.W., 129 S.W.3d 732, 743 (Tex. App.—Fort Worth 2004,
no pet.) (noting that imprisonment alone is insufficient to show a continuing
course of conduct that endangers the physical or emotional well-being of a child,
but when considered in conjunction with evidence of substance abuse, mental
instability, and sexual misconduct, such evidence provides further proof of
conduct that endangered child’s well-being).
6 Both children tested positive for cocaine at birth. T.A. admitted to using drugs during pregnancy and to having a drug problem.
15 Accordingly, giving due deference to the trial court’s findings, we hold that
the trial court could have formed a firm belief or conviction that Father engaged in
conduct or knowingly placed or knowingly allowed the children to remain in
conditions that endangered their physical or emotional well-being. See Tex.
Fam. Code. Ann. § 161.001(1)(D), (E). We hold that the evidence is legally and
factually sufficient to support the trial court’s family code section 161.001(1)(D)
and (E) findings, and we overrule Father’s first issue. Having overruled this
issue, we need not address—and therefore overrule—his second issue
challenging the legal and factual sufficiency of the evidence to support the trial
court’s section 161.001(1)(O) finding. See Tex. R. App. P. 47.1; J.L., 163
S.W.3d at 84 (stating that parent must have committed only one of the acts
prohibited under family code section 161.001(1) for termination of her parental
rights).
V. EVIDENTIARY SUFFICIENCY—BEST INTEREST
In his third issue, Father argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of the parent-child
relationship between Father and the children is in the children’s best interest. He
contends that TDFPS did not overcome the strong presumption that the best
interest of the child is served by keeping the child with the parent. See In re
R.R., 209 S.W.3d 112, 116 (Tex. 2006).
While we strongly presume that keeping a child with a parent is in the
child’s best interest, we also presume that prompt and permanent placement of
16 the child in a safe environment is in the child’s best interest. Tex. Fam. Code
Ann. § 263.307(a) (West 2008) (listing factors that should be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment). In a termination case, the trier of fact may use the following
nonexclusive factors in determining the best interest of the child: (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;
(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). These factors are not exhaustive:
some may be inapplicable, and additional factors may be considered when
appropriate. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of 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. The same
evidence of acts or omissions used to establish grounds for termination under
section 161.001(1) may be probative in determining the best interest of the child.
Id. at 28.
17 A. The Desire of the Child
While the children are very young and have not explicitly expressed their
desires, Flores testified that the children share a close bond with their foster
parents, with whom they have been living for three years. Flores also testified
that the children call Father ―Daddy‖ during their visits with him; and Father
testified that C.H.H. Jr. ―runs through the lobby hollering Daddy at the CPS office‖
when he arrives for a visit.
B. The Emotional and Physical Needs of the Children Now and in the Future
Flores testified that C.S.L.E.H. is confused by the fact that she has a
mommy and daddy at home and another dad somewhere else. Flores also
stated that a court’s final decision would help give the children a permanent
home and provide needed closure for the children. She said that the back-and-
forth visits interfere with the children’s schooling.
The children’s foster mother testified that she builds trust and a bond with
C.S.L.E.H. when the two participate in Momma-[Daughter] Day. The foster
mother said that she talks to and listens to C.S.L.E.H. and that C.H.H. Jr. refers
to her as ―Mommy‖ and refers to her husband as ―Daddy.‖
C. The Emotional and Physical Danger to the Children Now and in the Future
The record contains evidence that Father has been using illegal
substances and that refusing to acknowledge his drug use is problematic for the
children. Flores testified that Father’s positive drug tests after drug rehabilitation
18 indicate that he failed to internalize the tools that he learned in rehab and that his
continued denial of his drug problem will prevent the effectiveness of rehab in the
future. Father testified that he used heroin in June 2009 despite knowing that it
threatened his ability to get his kids back. Flores testified that the children should
not have to wait any longer for their Father to prove his sobriety and stability and
that his current drug use threatens their safety because of the probability that the
children may access his drugs.
D. The Parental Abilities of the Individuals Seeking Custody
Father completed parenting classes in 2008, and Flores testified that
Father acted appropriately on his visits with the children. Father testified that he
has only missed two visits since the children’s removal. Father stated that he
reads books and plays games with the kids and that he has a good relationship
with the oldest child. He said that she opens up to him about her life. Father
further testified that he raised a family for thirty years with his late wife and her
three children.
But the evidence also indicates that Father has never provided proof of
employment, has never sustained a negative drug test, and his drug use impairs
his judgment and, therefore, his ability to care for the children.
The foster mother testified that she wants to adopt the children. She and
her husband are both educators and, according to the foster mother, they
engage in educational activities with the children at their home. The foster
mother is in the process of completing a Ph.D., and her husband has a Master’s
19 degree. The foster mother also testified that she has the children involved in
many extracurricular activities, including sports and music. She further stated
that she has taken the children on trips to the Atlantic Ocean and the Kennedy
Space Center.
E. The Programs Available to Assist Father and the Foster Parents to Promote the Best Interests of the Children
Father testified that he would go into drug treatment if it meant getting his
children. However, Flores questioned whether treatment would be effective for
Father because he continued to deny that he has a drug problem. Father also
testified that despite the fact that he used drugs after attending a parenting class
in 2008, he believed that one set of classes was sufficient.
Flores testified that if the foster parents are able to adopt the children, then
the children’s medical needs and state college tuition will be secured.
F. The Plans for the Children by the Foster Parents and Father
The foster mother testified that her vision for the next decade includes
taking the children on vacation once a year, maintaining their college funds, and
teaching them how to save money and be productive members of society. The
foster mother said that she would do everything required of her to achieve
permanency through adoption as quickly as possible. According to Flores, the
current restrictions on foster parents prevent them from fulfilling the children’s
best interests. Flores also testified that Father has never provided TDFPS with a
child care plan to put in place if the children were returned to him.
20 G. The Stability of the Home or Proposed Placement
The foster parents are both elementary school teachers. Father, on the
other hand, testified that he has not had a steady job in a year and a half, and his
testimony indicates that he has taken minimal efforts to obtain employment. 7
Flores testified that her concerns over Father’s stability were addressed by
requiring Father to make regular child support payments. However, the evidence
indicates that he failed to make payments from February 2009 through
December 2010 and that he owes over $6,000 in child support. Flores also
testified that Father’s drug use exposes him to possible incarceration and that
there is no stability if Father is in and out of jail. She further stated that Father
has had plenty of opportunity to prove his stability and sobriety but has failed to
do so.
H. Father’s Acts or Omissions Which May Indicate That the Existing Parent-Child Relationship Is Improper
The evidence indicates that Father knew that T.A. was using drugs while
she was the primary caretaker of his children. The evidence also indicates that
Father had opportunities to address T.A.’s drug use and its effects on the
children because Father testified that he lived down the street from the children
and visited them at T.A.’s home almost every day before TDFPS removed the
7 Father testified that has not gone to any specific employers or the Texas Workforce Commission to look for a job. He said only that he has been looking for a job in different places and plans to file for disability.
21 children in 2007. Furthermore, Rietz testified that Father had been involved with
T.A. for a number of years and practically lived next-door to her.
Father argues that the record does not contain evidence that he committed
an act or omission toward or around the children that would indicate the parent-
child relationship is not proper. However, the record is also flooded with
evidence of his illegal drug use as discussed in the above analysis. Furthermore,
Father has failed to pay child support as he promised to do when he signed the
―Agreed Order for Actions Necessary for Parent to Obtain Return of Child‖ in
2009.
I. Father’s Excuse for His Acts or Omissions
Father argues that his failure to pay child support is excused by his inability
to work for a significant amount of time due to an accidental injury. However, the
record does not indicate any excuses for why Father did not contact specific
employers or the Texas Workforce Commission for the two or three months that
he was able to work before trial.
Father also argues that his wife’s death ―creat[ed] a reasonable
assumption that some of the family support resources that would have been
otherwise available to [Father] were lost‖ because ―his wife was willing to assist
him in taking‖ in the children. However, Father testified at trial that his wife died
three years ago and that someone else notified him to file for Social Security and
disability, but Father did not indicate that he has done so.
22 Lastly, Father seems to argue that his drug use is excused by TDFPS’s
failure to ―clearly convey to [him] that there was an expectation that [he] would
need to complete additional drug treatment following the first termination trial in
2008.‖ However, Father testified that he has never had a drug problem and that
he used drugs in June 2009 despite knowing that it would threaten his ability to
get his kids back. Furthermore, Flores testified that Father’s original service plan
never expired and that he understood that he was obligated to continue following
CPS’s expectations under the original service plan.
Considering the relevant statutory factors in evaluating Father’s willingness
and ability to provide the children with a safe environment and the relevant Holley
factors, we hold that, in light of the entire record, and giving due consideration to
evidence that the trial court could have reasonably found to be clear and
convincing, the trial court could reasonably have formed a firm belief or
conviction that termination of Father’s parental rights to C.S.L.E.H. and C.H.H. Jr.
is in the children’s best interests. Accordingly, we hold that the evidence is
legally and factually sufficient to support the trial court’s family code section
161.001(2) best interest findings. We overrule Father’s third issue.
23 VI. CONCLUSION
Having overruled all of Father’s dispositive issues, we affirm the trial
court’s order terminating Father’s parental rights to C.S.L.E.H. and C.H.H. Jr.
BILL MEIER JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DELIVERED: August 25, 2011