Opinion issued October 3, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00301-CV ——————————— IN THE INTEREST OF G.A.M., A CHILD
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2022-00472J
MEMORANDUM OPINION
In this appeal, O.T.F.C. (Mother) challenges the trial court’s final decree
terminating her parental rights to her minor child, G.A.M. (Gina), based on
findings that Mother failed to comply with provisions of a court-ordered family
service plan pursuant to Family Code section 161.001(b)(1)(O) and that Mother
has a mental or emotional illness or mental deficiency that renders her unable to provide for Gina’s needs pursuant to Family Code section 161.003. In her sole
issue on appeal, Mother contends that the evidence was legally and factually
insufficient to support the trial court’s finding that termination of her parental
rights was in Gina’s best interest.
We affirm.
Background
Mother gave birth to Gina on December 24, 2021. Gina came into the care
of the Department of Family and Protective Services (DFPS) in March 2022,
before she was three months old, because of concerns regarding Mother’s ability to
care for her. At the time she was removed, Gina was severely underweight and
unkempt. The affidavit of the DFPS caseworker related concerns regarding the
health and safety of Gina’s living environment with Mother. When DFPS
investigated the initial report, Mother was living with a man who was not Gina’s
father. DFPS encouraged Gina’s maternal grandmother (Grandmother) to
intervene, and Grandmother indicated that she would check in regularly with
Mother and Gina. DFPS observed that Mother was not able to follow feeding
instructions or provide a safe environment for Gina, so Mother agreed to have Gina
placed with Grandmother. However, a family friend subsequently raised concerns
that Grandmother routinely left Gina with inadequate caregivers while she went
“out and about in the streets.”
2 On March 22, 2022, DFPS obtained temporary conservatorship over Gina
and placed her in a foster family. The trial court ordered a family service plan with
numerous requirements for Mother, such as completing a psychological evaluation,
a psychiatric evaluation, parenting classes, and individual counseling. The family
service plan also ordered that Mother maintain stable housing and employment.
Mother did not complete the family service plan, and DFPS sought to have her
parental-rights to Gina terminated.
At trial, DFPS presented the testimony of a psychologist, A. Ross, who had
completed Mother’s psychological evaluation. Ross testified that she evaluated
Mother several months before trial, and her expert report was offered into
evidence. Ross testified that one of the assessments she performed measured
Mother’s cognitive ability, which was extremely low. Specifically, Ross testified
that Mother’s comprehension levels were at the level of a kindergartener. Ross
believed that Mother could work at a job with assistance, but her low cognitive
abilities would impact her ability to do things such as determine the correct dose
for medication or mix powdered formula correctly. She further testified that
Mother could not realistically improve her cognitive abilities at this point in her
life. While Mother might be able to learn new vocabulary or acquire new skills
with opportunity for repeated practice, Mother would continue to struggle to adapt
to new situations, ideas, or experiences.
3 With regard to Mother’s ability to parent, Ross was concerned that Mother
would not understand the developmental needs of a child, nor would she be able to
respond appropriately to new situations that would arise with her child. Ross
believed it was possible that Mother could learn to meet Gina’s basic needs, and
Ross testified that low-functioning parents could nevertheless be capable of
parenting with help and practice.
Ross further testified that Mother seemed open to having someone help her
parent Gina. However, Ross was not aware of Mother’s living situation, which had
included a history of living with multiple other people. Ross was also concerned
about Grandmother’s decision to leave Mother with an abusive man and about the
fact that Mother had several sexual partners while under Grandmother’s care.
DFPS caseworker H. Tate testified that Gina was removed from
Grandmother’s care after Grandmother left Gina with a friend who had no idea
where the Grandmother had gone. DFPS also removed Gina from Mother’s care
because of concerns over how Mother was feeding Gina due to the child being
severely underweight. Tate testified that Mother was not mixing the bottles
correctly. Tate and DFPS colleagues observed other troubling circumstances that
called into question Mother’s ability to feed Gina and keep her safe. Tate testified
about one occasion when Mother left Gina unattended on a changing table and had
to be redirected multiple times before she returned to Gina. Mother could not
4 diaper Gina without significant help. Tate further testified that Grandmother had
been present when Mother left Gina on the changing table but did not intervene.
On another occasion, a service provider observed Mother offer Gina a piece of
cheese that could have posed a choking hazard.
In addition to being underweight, Gina had a condition affecting her head
and neck when she came into DFPS care. Neither Mother nor Grandmother had
done anything to address the condition. Gina had since received treatment and did
not have any special needs at the time of trial.
Regarding Mother’s family service plan, Tate testified that Mother had
failed to complete the required psychiatric evaluation and individual counseling.
The service providers were aware of the results of Mother’s psychological
evaluation. Tate also testified that Mother had not maintained stable housing
through the pendency of the case—she moved several times and had moved into a
new apartment a week before trial. Tate did not believe that Grandmother and
Mother had been honest with DFPS about their living situations, saying that they
had their own place but were in fact living with other people and moving multiple
times. Tate further testified that Mother began working with Grandmother cleaning
houses the week before trial, but Tate had not received any documentation
regarding this employment. Tate believed that Mother loved Gina, and Tate knew
5 that Mother wanted Gina to stay with her. Tate had not observed significant
improvement in Mother’s parenting skills despite the family plan of service.
Tate testified that Mother informed DFPS that her father and his wife would
be willing to help with Gina. Tate testified that the grandfather had a history with
adult protective services and was listed as the perpetrator in the agency’s report.
Tate met with the grandfather the day before trial when he showed up at her office,
but she did not know why he was not identified earlier in the case as a potential
support for Mother and Gina.
Tate testified that Gina’s current placement was meeting her needs. The
foster family attended her physical therapy and helmet therapy to treat the head and
neck condition. They also addressed other medical needs as they appeared, and
they had an extended family support system. Gina had gained weight and, despite
being developmentally behind when she first came into care, Gina was meeting her
developmental milestones. Tate also believed that Gina was bonded with her foster
family, and the family wanted to adopt her if she became eligible for adoption. The
foster family expressed an intent to allow Gina to have ongoing contact with
Mother if they adopted Gina.
The guardian ad litem, A. Stromgren, testified that the Child Advocates
organization was recommending termination of parental rights and placement with
the foster family. Stromgren acknowledged that Mother wanted Gina returned to
6 her, but Stromgren had serious concerns regarding Mother’s cognitive ability and
its impact on her ability to safely parent Gina. Stromgren did not believe that
Mother could address Gina’s basic feeding and hygiene needs. Stromgren observed
Mother struggle to diaper Gina without assistance and leave Gina unattended on
the sofa multiple times. Stromgren further testified, “There were multiple times at
each visit where the child was left [unattended] usually on the sofa. And Mom nor
grandmother was supporting the child to prevent the child from falling; it was
usually CPS or the transporter.”
Stromgren also testified that Child Advocates was concerned about both
Mother’s and Grandmother’s stability. Child Advocates received numerous,
inconsistent explanations of where Mother and Grandmother were living
throughout the case. Stromgren testified that the last time she spoke with
Grandmother, “she had found someone on Facebook to move in with on February
21, [2023],” approximately three weeks before the trial. However, she believed that
Mother and Grandmother had moved into a new residence the day of trial. She also
did not believe that Grandmother had shown the ability or interest in protecting
Mother, nor did Grandmother show an ability to help Mother parent Gina.
Stromgren testified that Child Advocates had multiple conversations with
Grandmother about introducing Mother to multiple paramours, but Grandmother
was not appropriately protective of Mother.
7 Stromgren also testified that Gina was, at the time of trial, walking well and
would be at additional risk if appropriate safety precautions were not taken.
Stromgren had observed Gina in the foster home, and she observed that the
placement was safe and meeting Gina’s needs. Stromgren testified that the foster
parents were very involved in obtaining the care Gina needed to treat the condition
with her head and neck. The foster family had also engaged additional therapy
services and provided activities like gymnastics to help Gina catch up and start
meeting developmental milestones.
Foster Mother testified that Gina had been living in her home for nearly a
year. When Gina first came to Foster Mother’s home, the girl was not quite three
months old and weighed only ten pounds. This meant that Gina was in the third
percentile for her weight, which did not match up with her length and head
circumference. Gina seemed exhausted and struggled to take a bottle. Foster
Mother also testified that Gina was “pretty grimy and dirty”: She “had a lot of dirt
under her fingernails, which were long and not clipped.” Gina also had cradle cap,
“and it looked like it hadn’t really been combed or shampooed because her hair
was kind of glued to her head.” Foster Mother also found “debris” like something
“from either a stuffed animal or a blanket, something fuzzy,” in Gina’s stools
during the first week Gina was under her care. Gina also had a condition called
torticollis that had been untreated, and she had plagiocephaly, or a flat head. Foster
8 Mother participated in treatment for the conditions by having Gina fitted for a
helmet and engaging in physical therapy.
Foster Mother testified that Gina’s head has improved and she no longer has
on-going medical issues. Her weight was in the eighty-fourth percentile at her last
check-up. Gina was verbal and meeting her developmental milestones regularly.
The foster family would continue providing enrichment activities for Gina, and
Foster Mother testified that Gina liked piano and playing with Foster Mother’s
nine-year-old daughter. Foster Mother was willing to continue visits between Gina
and Mother in a safe way if the court allowed that to occur. Foster Mother testified
that she wanted to care for Gina for the rest of her life and hoped Gina would stay
with her. She hoped that Gina would be able to maintain a relationship with
Mother and Grandmother.
Grandmother testified that, at the time DFPS removed Gina from Mother’s
care, Grandmother was concerned about the man Mother was living with because
he would “scream really ugly things to [Mother].” Grandmother took Gina to live
with her because she did not believe Gina was safe with him, and then Mother also
came to live with Grandmother. Grandmother believed that Mother needed help to
take care of Gina. Grandmother testified that she currently had a place to live
where Mother and Gina could join her.
9 Gina was placed with Grandmother after DFPS first removed her, but Gina
was removed from Grandmother’s care. Grandmother testified that this was
because she left Gina to go to a party, although Grandmother testified that she did
not leave Gina alone and she believed Gina was safe while she was out.
Grandmother testified that Mother loved Gina and took care of her.
Mother testified that she did not want the foster family to adopt Gina. She
wanted her daughter returned to her. When asked whether she fed Gina regularly,
Mother testified answered, “Every day, eat. At 8:00.” Mother testified “yes” when
asked whether she sought medical care for Gina when she was severely
underweight:
[DFPS]: And what did the pediatrician instruct you to do?
[Mother]: Milk.
[DFPS]: How often did you feed her?
[Mother]: Three times.
Mother further testified that she lived with Grandmother and had help from
Grandmother, her father, and her father’s wife. Mother believed that she had
completed parenting classes and all of the other services that DFPS required.
The trial court rendered its final decree of termination. It found that Mother
failed to complete the court-ordered family service plan pursuant to Family Code
subsection 161.001(b)(1)(O); that she had a mental deficiency that rendered her
10 unable to care for Gina and that would likely continue through Gina’s 18th
birthday, pursuant to Family Code section 161.003(a); and that termination of the
parent-child relationship was in Gina’s best interest. The trial court further
appointed DFPS as Gina’s sole managing conservator. This appeal followed.
Sufficiency of Best Interest Finding
In her sole appellate issue, Mother contends that the evidence was legally
and factually insufficient to support the trial court’s finding that termination of her
parental rights was in Gina’s best interest. We disagree.
A. Standard of Review
A trial court may order termination of the parent-child relationship if it finds
one of the statutorily enumerated predicate grounds for termination and that
termination of parental rights is in the best interest of the child. See TEX. FAM.
CODE § 161.001(b); see In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); see also
TEX. FAM. CODE § 161.003(a) (providing that court may terminate parent-child
relationship if it finds, among other things, that parent has “a mental deficiency
that renders the parent unable to provide for the physical, emotional, and mental
needs of the child” and “the termination is in the best interest of the child”). DFPS
must prove both elements—a statutorily prescribed predicate finding and that
termination is in the child’s best interest—by clear and convincing evidence. See In
re E.N.C., 384 S.W.3d at 802–03 (stating that federal due process clause and Texas
11 Family Code both mandate “heightened standard of review” of clear and
convincing evidence in parental-rights termination cases); see also TEX. FAM.
CODE § 161.003(a)(2) (requiring clear and convincing evidence to support finding
that mental deficiency will continue to render parent unable to provide for child
until 18th birthday of child). The Family Code defines “clear and convincing
evidence” as “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 re E.N.C., 384 S.W.3d at 802.
“Evidence is legally sufficient if, viewing all the evidence in the light most
favorable to the fact-finding and considering undisputed contrary evidence, a
reasonable factfinder could form a firm belief or conviction that the finding was
true.” In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We assume that any disputed
facts were resolved in favor of the finding if a reasonable factfinder could have
done so. Id. at 630–31. In reviewing the evidence’s factual sufficiency, we
consider the entire record, including disputed evidence. Id. at 631. “Evidence is
factually insufficient if, in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of a finding is so significant
that the factfinder could not have formed a firm belief or conviction that the
finding was true.” Id.
12 The Texas Legislature has set out several factors that courts should consider
in determining whether a child’s parent is willing and able to provide the child
with a safe environment, including: (1) the child’s age and physical and mental
vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the
magnitude and frequency of harm to the child; (4) whether the child has been the
victim of repeated harm after the initial intervention by DFPS; (5) the results of
psychiatric, psychological, or developmental evaluations of the child’s parents,
family members, or other people with access to the home; (6) the willingness of the
child’s family to seek out, accept, and complete counseling services; (7) the
willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable period of time; and (8) whether the child’s
family demonstrates adequate parenting skills, including providing minimally
adequate care for the child’s health and nutritional needs, care consistent with the
child’s physical and psychological development, guidance and supervision
consistent with the child’s safety, a safe physical home environment, and an
understanding of the child’s needs and capabilities. TEX. FAM. CODE § 263.307(b).
The Supreme Court of Texas has also set out several non-exclusive factors
that we should consider when determining whether the termination of a parent’s
rights is in the child’s best interest, including (1) the child’s desires; (2) the child’s
current and future physical and emotional needs; (3) the current and future physical
13 and emotional danger to the child; (4) the parenting abilities of the person seeking
custody; (5) the programs available to assist the person seeking custody in
promoting the child’s best interests; (6) the plans for the child by the person or
agency seeking custody; (7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent that may indicate the parent-child
relationship is not proper; and (9) any excuse for acts or omissions of the parent. In
re J.W., 645 S.W.3d 726, 746 (Tex. 2022) (citing Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976)); In re A.C., 394 S.W.3d 633, 641–42 (Tex. App.—
Houston [1st Dist.] 2012, no pet.).
These factors are not exhaustive, and it is not necessary that DFPS prove all
these factors “as a condition precedent to parental termination.” In re C.H., 89
S.W.3d 17, 27 (Tex. 2002); In re M.A.J., 612 S.W.3d 398, 410 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied). The absence of evidence concerning some
of the factors does not preclude a factfinder from forming a firm belief or
conviction that termination is in the children’s best interest. In re A.C., 394 S.W.3d
at 642.
The best-interest analysis may consider circumstantial evidence, subjective
factors, and the totality of the evidence as well as the direct evidence. In re Y.G.,
No. 01-22-00181-CV, 2022 WL 3362953, at *13 (Tex. App.—Houston [1st Dist.]
Aug. 16, 2022, pet. denied) (mem. op.) (citing In re B.R., 456 S.W.3d 612, 616
14 (Tex. App.—San Antonio 2015, no pet.)). “A trier of fact may measure a parent’s
future conduct by his past conduct and determine whether termination of parental
rights is in the child’s best interest.” In re B.R., 456 S.W.3d at 616; see In re C.H.,
89 S.W.3d at 28 (stating that past performance as parent “could certainly have a
bearing on [parent’s] fitness to provide for” child, and courts should consider prior
history of child neglect in best-interest analysis).
B. Analysis
Here, sufficient evidence of numerous factors supports the trial court’s
determination that termination of Mother’s parental rights to Gina was in the
child’s best interest. Regarding Gina’s age and physical and mental vulnerabilities,
the evidence at trial indicated that Gina was still very young—just a little over a
year old at the time of trial—and so she needed an environment where she could be
fed safely and regularly. Foster Mother testified that Gina was starting to walk and
talk, and Gina’s guardian ad litem Stromgren testified that she needed a safer
environment than Mother could provide.
Regarding the frequency and nature of Gina’s out-of-home placements,
DFPS presented evidence that it first attempted to place Gina in Grandmother’s
care when Gina was three months old. However, Grandmother was unable to
provide adequate care because she would leave Gina with inappropriate people or
would leave without telling the caregiver how to get in touch with her. Gina was
15 placed with her current foster family just before she was three months old, and
they were hoping to adopt her.
The evidence also demonstrated that Mother had been unable to care for
Gina. Gina was severely underweight when she was removed by DFPS because
Mother did not understand how to feed her. Gina’s basic hygiene needs were not
being met, and she had untreated medical conditions. Mother was unable to
understand these concerns, nor was she able to address them. Ross testified
regarding Mother’s psychological evaluation, which demonstrated that Mother’s
cognitive ability was very low and was not likely to improve. Mother could learn
new tasks, but she could not react appropriately to new situations. Stromgren and
Tate both testified that they observed Mother throughout the pendency of the case,
and she struggled to keep Gina safe. She could not mix bottles correctly or change
diapers. Despite parenting classes and other efforts, Tate did not see an
improvement in Mother’s parenting abilities. See TEX. FAM. CODE § 263.307(b)
(best-interest factors include parent’s willingness to seek out services and
demonstrate ability to provide adequate parenting skills).
Furthermore, Mother was not able to complete her family service plan, and
evidence at trial indicated that her living and working situations remained unstable
during the pendency of the case. See In re M.R., 243 S.W.3d 807, 821 (Tex.
App.—Fort Worth 2007, no pet.) (holding that parent’s inability to provide stable
16 home and failure to comply with family plan of service supported finding that
termination was in child’s best interest). Mother needed significant help to meet
her own needs.
While it was clear that Mother loved Gina and wanted to care for her, there
was no evidence introduced at trial that Mother herself was capable of providing
the care that a growing child like Gina would need. The foster family, on the other
hand, was able to meet Gina’s medical and developmental needs. They wanted to
adopt Gina and were willing to see that she maintained a relationship with Mother
and Grandmother to the extent they could do so safely. See TEX. FAM. CODE
§ 263.307(b); Holley, 544 S.W.2d at 372 (holding that future plans for child are
relevant to best-interest determination). The evidence also showed that Gina had
bonded with her foster family and was well-cared for. See In re J.M., 156 S.W.3d
696, 706 (Tex. App.—Dallas 2005, no pet.) (considering that child was bonded to
foster family when child was too young to express desires). Foster Mother testified
that she wanted to adopt Gina and that Gina enjoyed playing with her foster sister.
When children are too young to express their desires, the factfinder may consider
whether the children have bonded with the foster family, are well-cared for by
them, and have spent minimal time with a parent. See In re J.D., 436 S.W.3d 105,
118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
17 Viewing the evidence in the light most favorable to the fact-finding, we
conclude that the trial court could form a firm belief or conviction that termination
of Mother’s parental rights was in Gina’s best interest. See In re A.C., 560 S.W.3d
at 631.
Mother argues that termination of her parental rights “because of her
cognitive limitations is unnecessary and unwarranted under” the facts of the case,
where it was demonstrated that Mother loved Gina and where “opinions as to what
Mother can or cannot do at present are debatable.” Mother also argued that
“opinions as to what she can or cannot do in the future remain speculative.”
It was not disputed that Mother loves Gina, but we observe that the best-
interest inquiry is “child-centered and focuses on the child’s well-being, safety, and
development.” Id. The evidence demonstrated more than the mere fact that Mother
had severe cognitive limitations. DFPS presented evidence that Mother’s
limitations resulted in problems with feeding Gina that resulted in her being very
underweight by the time she was three months old. Mother’s testimony regarding
her feeding of Gina demonstrated that Mother was unable to understand or follow
the feeding advice of the pediatrician. Both Tate and Stromgren testified that
Mother continued to struggle with basic tasks like diapering Gina or supervising
her properly. Tate observed Mother attempt to feed Gina a piece of cheese that
would have posed a choking hazard to an infant like Gina. See In re J.P.-L., 592
18 S.W.3d 559, 582–83 (Tex. App.—Fort Worth 2019, pet. denied) (holding that
parent’s mental capacity is probative of best interest because mental issues are
relevant to ability to care for child’s physical and emotional needs); see also In re
B.J.C., 495 S.W.3d 29, 36 (Tex. App.—Houston [14th Dist.] 2016, no pet.)
(holding that evidence of mental deficiency, by itself, is not ground to termination
parent-child relationship, but evidence that parent’s mental deficiency prevents her
from providing for child now and in future supports termination).
Even if we agreed that the evidence of Mother’s ability was “debatable,” we
observe that the trial court, as the fact-finder, was entitled to resolve any
inconsistencies or discrepancies in the evidence. See In re A.C., 560 S.W.3d at
630–31 (holding that court’s assume that any disputed facts were resolved in favor
of finding if reasonable factfinder could have done so). We also observe that the
evidence regarding Mother’s ability to care for Gina in the future was not
“speculative.” Ross testified that, while Mother could learn some tasks through
repetition, she would not understand the developmental needs of a child, nor would
she be able to respond appropriately to new situations that would arise with her
child. Ross did not believe that Mother would be able to improve her cognitive
ability, and her mental condition meant that she would struggle with things like
determining the correct dose of medication or how to mix formula to feed Gina.
Tate testified that she did not see any improvement in Mother’s parenting ability
19 over the course of the case, despite efforts by DFPS and parenting classes. Cf.
Salas v. Tex. Dep’t of Protective & Regulatory Servs., 71 S.W.3d 783, 790 (Tex.
App.—El Paso 2022, no pet.) (“Section 161.003 does not require scientific
certainty that [a parent’s] mental illness [or deficiency] will continue until the
children are eighteen; it only requires reasonable probability.”).
Mother further argues that she can raise her daughter with assistance, citing
the fact that she lives with Grandmother. However, the evidence at trial indicated
that Grandmother was not sufficiently protective of either Mother or Gina. DFPS
originally placed Gina with Grandmother after she was removed from Mother’s
care, but Gina was unable to stay with Grandmother because Grandmother did not
provide adequate supervision. Tate and Stromgren both testified that they had
concerns regarding Grandmother’s ability to provide a safe, stable environment.
Grandmother moved several times through the pendency of the case. Stromgren
testified that on at least one occasion, Mother left Gina on the sofa and
Grandmother did not intervene to keep Gina safe.
Stromgren further testified that Child Advocates were concerned about the
fact that Grandmother introduced numerous sexual partners to Mother, and
Grandmother left Mother and Gina living with a man who was potentially unsafe.
Mother further argues that her father and his wife could have provided support to
her and Gina. However, Mother’s father was not available to DFPS during the year
20 this case was pending. Tate testified that he showed up at her office the day before
trial, so DFPS could not establish whether he was an appropriate care giver. Tate
testified that he had been named as the perpetrator in a report made to adult
protective services. There is no evidence that he provided any protection or support
to either Mother or Gina. Thus, the trial court could have concluded that Mother
would not have sufficient support from Grandmother or any other family member.
Thus, considering the entire record, including disputed evidence, we
conclude that the disputed evidence is not so significant that the trial court could
not have formed a firm belief or conviction that termination of Mother’s parental
rights was in Gina’s best interest. See In re A.C., 560 S.W.3d at 631.
We overrule Mother’s sole issue.
Conclusion
We affirm the final decree of the trial court.
Richard Hightower Justice
Panel consists of Chief Justice Adams and Justices Hightower and Countiss.