in the Interest of H. M. P. and B. R. P., Children

• Court: Court of Appeals of Texas
• Decided: January 7, 2010
• Docket: 13-08-00643-CV
• Status: Published

Opinion

NUMBER 13-08-00643-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE INTEREST OF H.M.P. AND B.R.P., CHILDREN

On appeal from the 267th District Court of Victoria County, Texas.

MEMORANDUM OPINION Before Justices Yañez, Benavides, and Vela Memorandum Opinion by Justice Yañez

Appellant, J.C., appeals the termination of her parental rights to her two children,

H.M.P. and B.R.P.1 By three issues, J.C. contends: (1) the evidence is legally and

factually insufficient to support the trial court's finding that she committed three statutory

grounds for termination; (2) the evidence is factually insufficient to support a finding by

clear and convincing evidence that termination of J.C.'s parental rights was in the best

1 To protect the privacy of the m inor children, we refer to the parties by their initials. See T EX . F AM . C OD E A N N . §109.002(d) (Vernon 2008); T EX . R. A PP . P. 9.8(b)(2). interest of the children; and (3) "the trial court erred in its conservatorship determinations."

We affirm.

I. BACKGROUND

On January 24, 2007, J.C. took her two-month-old daughter, B.R.P., to the hospital

because J.C found three nails in B.R.P.'s diaper. X-rays of B.R.P. were taken, and the

doctor discovered that two nails remained in B.R.P.'s digestive tract. Fortunately, B.R.P.

"passed" the nails without suffering any injury.2 Based on this incident, a referral was

made to the Texas Department of Family and Protective Services (TDFPS) alleging

physical abuse and neglectful supervision.3

On September 19, 2007, TDFPS filed an original petition for protection of a child,

for conservatorship, and for termination in suit affecting the parent-child relationship

requesting that (1) the children be removed from the parents' home, (2) TDFPS be

appointed the temporary sole managing conservator of the children, and (3) if reunification

with J.C. was not possible, termination of the parent-child relationship. The children were

removed, and the trial court appointed TDFPS as temporary sole managing conservator.

On November 6, 2007, in its temporary order following an adversary hearing, the

trial court ordered J.C. to: (1) perform the requirements outlined in TDFPS's original

service plan or any amended service plans filed with the trial court during the pendency of

the suit; (2) "attend and cooperate fully in counseling sessions at Child-Family-Adult

Counseling to address the specific issues that led to the removal of the children from the

2 The nails were one and one-half inches in length.

3 There is nothing in the record indicating who m ade the referral.

2 home"; (3) attend and successfully complete parenting classes; (4) "submit urine or saliva

samples, at times to be determined by [TDFPS], for analysis by a drug testing laboratory";

and (5) pay child support in the amount of twenty dollars per month. On November 30,

2007, in a status hearing order, the trial court ordered that "the permanency plans and

recommendations for the children, set out in the service plans filed with the [trial court], are

approved and adopted by the [trial court] as if set out verbatim in this order." The trial court

advised the parents, J.C. and M.P., that "progress under the service plan will be reviewed

at all subsequent hearings, including a review of whether the parties have acquired or

learned any specific skills or knowledge in the service plan."

Under the terms of the service plan, J.C. was required, among other things, to: (1)

"attend, participate in, and successfully complete" parenting classes; (2) "attend and

cooperate fully in counseling services with [sic] to address the specific issues that led to

the removal of her children and to address any additional issues that rise from the

psychological evaluation"; (3) "appear at Mid-Coast Family Services and submit to and

cooperate fully in the preparation of a drug and alcohol dependency assessment"; (4)

"appear at the office of Dr. Michelle Moran and submit to and cooperate fully in the

preparation of a psychc [sic]"; (5) pay child support; (6) participate in Battering Intervention

& Prevention ("BIP") with Mid-Coast Family Services; and (7) "submit to random drug

screenings performed by the caseworker or any other employee of [TDFPS]."

In a permanency plan and permanency progress report filed with the trial court on

February 26, 2008, TDFPS documented that although J.C. had not completed all the

services in the plan, she was "eager to begin services" and had set up an appointment for

parenting classes. It was further noted that J.C. had completed an alcohol and drug

3 assessment, a psychological examination, and one random drug test. However, J.C. had

not started parenting classes or individual counseling as ordered by the trial court. On

March 7, 2008, in its permanency order, and in its March 7, 2008 permanency hearing

order, the trial court found that J.C. had not "demonstrated adequate and appropriate

compliance with the service plan." In a permanency plan and progress report filed on July

3, 2008, TDFPS stated that J.C. had completed her drug and alcohol assessment, and

recommended that J.C. participate in out-patient treatment, parenting classes, random

drug testing, and if she continued testing positive for drugs, inpatient treatment. According

to the report, J.C. had submitted two random drug tests; the lab was unable to complete

the first test and the second test was negative. On March 21, 2008, when the caseworker

asked J.C. to perform a drug test, J.C. refused and admitted that she had used marihuana.

Since that date, J.C. had refused to take any more drug tests. J.C. had neither completed

nor participated in the BIP program, individual counseling, and parenting classes. On July

11, 2008, in a permanency hearing order, the trial court found that J.C. had "not

demonstrated adequate and appropriate compliance with the service plan" and ordered

J.C. to pay child support in the amount of $224 per month.

The trial court set the suit for trial on August 26, 2008; a continuance was granted,

and a bench trial was held on September 17-18, 2008. After hearing evidence, the trial

court ordered the termination of J.C.'s parental rights to H.M.P. and B.R.P., appointed M.P.

possessory conservator, and appointed TDFPS permanent managing conservator. The

trial court found by clear and convincing evidence that termination of J.C.'s relationship with

H.M.P. and B.R.P. was in the children's best interest and that J.C. had violated section

161.001 of the family code by: (1) knowingly placing or knowingly allowing the children to

4 remain in conditions or surroundings which endanger the physical or emotional well-being

of the children; (2) failing to support the children in accordance with mother's ability during

a period of one year ending within six months of the date of the filing of the petition; and

(3) failing to comply with the provisions of a court order that specifically established the

actions necessary for the mother to obtain the return of the children who were in the

permanent or temporary managing conservatorship of TDFPS for not less than nine

months as a result of the children's removal from the parent under Chapter 262 for the

abuse or neglect of the children.4 J.C. filed a motion for new trial that was overruled by

operation of law. This appeal ensued.

II. SUFFICIENCY OF THE EVIDENCE

By her first issue, J.C. contends that the evidence is legally and factually insufficient

to support the trial court's findings that she violated subsections D, F, and O of section

161.001 of the family code. By her second issue, J.C. contends that the evidence is

factually insufficient "for the trial court to conclude by clear and convincing evidence that

termination of [J.C.'s] parental rights was in the best interest of the children."

A. Applicable Law and Standard of Review

Before terminating the parent-child relationship, the trial court must find that the

parent committed an act prohibited by section 161.001(1) of the Texas Family Code and

that termination is in the child's best interest.5 Involuntary termination of parental rights

involves fundamental constitutional rights and divests the parent and child of all legal

4 See T EX . F AM . C OD E A N N . § 161.001(D), (F), (O) (Vernon Supp. 2009).

5 T EX . F AM . C OD E A N N . § 161.001; id. § 153.002 (Vernon 2008); In re J.L., 163 S.W .3d 79, 84 (Tex. 2005).

5 rights, privileges, duties, and powers normally existing between them, except for the child's

right to inherit from the parent.6 Therefore, termination of the parent-child relationship must

be supported by clear and convincing evidence.7 This intermediate standard falls between

the preponderance of the evidence standard of civil proceedings and the reasonable doubt

standard of criminal proceedings.8 It is defined 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."9

In reviewing the legal sufficiency of the evidence supporting parental termination,

we must "look at 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."10 We must assume that the trier of fact, the trial court in this case,

resolved disputed facts in favor of its finding, if it was reasonable to do so.11 We must also

consider undisputed evidence, if any, that does not support the finding.12

In a factual sufficiency review, "[w]e must determine whether, on the entire record,

a fact-finder could reasonably form a firm conviction or belief that the parent violated a

6 Holick v. Smith, 685 S.W .2d 18, 20 (Tex. 1985); see In re D.S.P., 210 S.W .3d 776, 778 (Tex. App.–Corpus Christi 2006, no pet.).

7 In re J.L., 163 S.W .3d at 84; In re D.S.P., 210 S.W .3d at 778.

8 In re G.M., 596 S.W .2d 846, 847 (Tex. 1980); In re C.S., 208 S.W .3d 77, 83 (Tex. App.–Fort W orth 2006 pet. denied); Porter v. Tex. Dep't of Protective & Regulatory Servs., 105 S.W .3d 52, 57 (Tex. App.–Corpus Christi 2003, no pet.).

9 T EX . F AM . C OD E A N N . § 101.007 (Vernon 2008); see In re C.H., 89 S.W .3d 17, 25 (Tex. 2002).

10 In re J.L., 163 S.W .3d at 85 (quoting In re J.F.C., 96 S.W .3d 256, 266 (Tex. 2002)).

11 Id.

12 Id.

6 provision of section 161.001(1) and that the termination of the parent's parental rights

would be in the best interest of the child."13 Under this standard, we consider whether the

"disputed evidence is such that a reasonable factfinder could not have resolved the

disputed evidence in favor of its finding. If, in light of the entire record, the disputed

evidence that a reasonable factfinder could not have credited in favor of the finding is so

significant that a factfinder could not reasonably have formed a firm belief or conviction,

then the evidence is factually insufficient."14

B. The Evidence

Amy Phlaum, a caseworker with TDFPS, testified that she was briefly involved in

J.C.'s case when TDFPS removed the children. Phlaum stated that because the children

were able to acquire the nails that B.R.P. swallowed, there was a question of whether there

was negligent supervision. There were also other referrals to TDFPS dealing with

domestic violence in the family in another county.15 TDFPS was unable to contact the

family in that county because the family moved from county to county.16 Eventually,

TDFPS made contact with J.C., and Phlaum and her supervisor, Gretchen Johnson, met

with J.C. on September 18, 2007 at the Victoria TDFPS office. At the meeting, services

13 In re M.C.T., 250 S.W .3d 161, 168 (Tex. App.–Fort W orth 2008, no pet.) (citing In re C.H., 89 S.W .3d at 28).

14 In re J.F.C., 96 S.W .3d at 266; In re M.C.T., 250 S.W .3d at 168 (citing In re H.R.M., 209 S.W .3d 105, 108 (Tex. 2006)).

15 On cross-exam ination, Phlaum stated that the dom estic violence included an instance where M.P. hit J.C. and other instances where both M.P. and J.C. "exchanged blows."

16 According to Phlaum , the m ovem ent of the fam ily "was a situation where [the fam ily] seem ed to be going back and forth. At som e point they were in Graham [County] and [then they] were back in Victoria. It was hard for the CPS personnel in those locations to be able to keep up with the fam ily and where they were at the tim e."

7 were offered to J.C., including, among other things, counseling, parenting classes, and

alcohol-drug assessment intervention. By the end of the meeting, it was apparent that J.C.

was not interested in the services that were offered.17 Phlaum stated:

[I]nitially, [J.C.] expressed being willing to do services, then as the contact progressed, she basically said that she would only do services if it was under a provider or under someone that she wanted to initiate it with. Then ultimately she said that she didn't want to do services at all and that we needed to contact her attorney.

However, J.C. did not provide the name of her attorney. Phlaum testified that J.C. was

belligerent, angry, and when TDFPS asked J.C. to perform a drug test, J.C. indicated that

the drug test was not necessary because she would test positive for marihuana. J.C.

claimed that she had last smoked marihuana two weeks earlier.

TDFPS determined that the children were at risk and they were removed from the

parents' custody. On cross-examination, Phlaum stated that TDFPS decided to remove

the children because: (1) J.C. refused to comply with the service plan; (2) J.C.'s temper

escalated and she became "out of control"; and (3) J.C. was not going to be able to take

her psychotropic medication until November 8, 2007, which raised a concern about her

mental state.18 Phlaum testified that a parent's refusal of services alone is not a ground

to remove the children and that the decision to remove the children is based on the

parents' "track record of everything that led up to that point and [the caseworkers']

concerns, substantial concerns with regard to risk to the children." According to Phlaum,

the family was difficult to locate; however, once TDFPS located the family, the children

17 Phlaum testified that if J.C. had com plied with the service order on Septem ber 2007, the children probably would not have been rem oved.

18 W e note that J.C. has been diagnosed with bipolar disorder requiring psychiatric treatm ent.

8 were removed on September 20, 2007.

Sonia Cantu Gonzales, a caseworker with TDFPS, testified that she was assigned

to this case on March 5, 2008. According to Gonzales, M.P. had completed most of the

requirements of his service plan, except for three more sessions of BIP, and J.C. had

completed her psychological examination and her drug and alcohol assessment.19

However, J.C. had not completed the other requirements of her service plan.

Gonzales testified that although she informed J.C. that under the terms of the trial

court's temporary managing conservatorship order, J.C. was required to submit to random

drug testing, J.C. continued to refuse to take the drug tests. According to Gonzales, J.C.

stated that she would not take the drug tests because she had been using marihuana.20

On one occasion, Gonzales had a drug test in her hand and asked J.C. to complete it; J.C.

"grabbed" the drug test from Gonzales's hand and said, "Give me the f-ing test." Then J.C.

yelled profanities and screamed at M.P. When J.C. calmed down, she told Gonzales that

she had been "using" and that she did not understand "what was the big deal because she

wasn't using in front of her children." Gonzales interpreted J.C.'s comment as meaning

that it was okay to use drugs so long as she did not do it in front of the children. J.C. did

submit to three random drug tests; however, beginning on March 21, 2007, she refused

further testing. On July 11, 2008, at a permanency hearing, the trial court ordered J.C. to

undergo a cheek swab test and complete a hair follicle test. Both tests were positive for

marihuana, and when Gonzales discussed the results of the test with J.C., she admitted

19 M.P. had never tested positive on a random drug test.

20 On cross-exam ination by J.C.'s attorney, Gonzales stated that J.C. had only one negative drug test result.

9 that she had smoked marihuana.

Gonzales testified that J.C. missed her scheduled visitation with her children

"maybe, a few times." J.C. notified Gonzales that she would not be present on one

occasion because she did not want to see M.P., and on another occasion, J.C. explained

that she did not have a ride. According to Gonzales, J.C. was originally ordered to pay

child support in the amount of twenty dollars per month, but she did not pay anything

during those months. Then on July 11, 2008, the trial court ordered support in the amount

of two hundred twenty four dollars; J.C. paid six hundred five dollars and ninety cents of

the total amount due leaving a balance of two hundred ninety two dollars and ten cents.

Gonzales stated that there had been difficulty with J.C. at the visitations, including

an incident when J.C. arrived at the visitation site, alone and crying. J.C. told Gonzales

that she had been in an argument with M.P. and that he was not going to come to the

visitation. J.C. informed Gonzales that she had slapped M.P. in the parking lot and that

a man had witnessed the incident. M.P. arrived while J.C. was with the children, and he

joined the visit. Gonzales "walked out" briefly and approximately five minutes later, M.P.

walked out of the room and J.C. followed saying, "I can't believe you're going to leave.

You're leaving. Look, he's leaving." Gonzales told J.C. not to yell in front of the children

and that if M.P. wanted to leave, she should let him. When the visitation ended, a man that

Gonzales believed worked at "Gulf Bend" came into the office and stated that M.P. and

J.C. were arguing outside in the parking lot and that he saw J.C. "hitting [M.P.] in the

10 face."21 On another occasion, J.C. told the children that when they went home with her,

she would take them to the beach. A case worker assistant asked J.C. not to make those

types of promises to the children for fear of giving the children "false hope" that they would

return home. J.C. "proceeded to get mad—why, why and . . . was kind of yelling again at

that time." Gonzales also observed on one visitation that B.M.P. was "digging into J.C.'s

purse" and while J.C. talked with H.M.P., J.C. did not notice that B.M.P. had taken out

cigarettes from the purse. Finally, Gonzales saw that H.M.P. had a small earring in her

mouth, and J.C. was asked to tell H.M.P. to remove the earring from her mouth. J.C.

responded, "[W]ell she's not going to swallow it." Based on her observations, Gonzales

stated it was her opinion that J.C. does not recognize inappropriate or potentially

dangerous situations with the children.

Stacy Marthiljohni, a case supervisor for "Golden Crescent CASA," testified that

although she informed J.C. at one of the status hearings that J.C. needed to maintain

contact with her, J.C. failed to do so. According to Marthiljohni, J.C.'s location was difficult

to determine because she moved "back and forth;" however, J.C. had recently contacted

Marthiljohni, and she visited J.C.'s home. Marthiljohni stated that the home was being

remodeled and had ample space for the children. At the time, J.C. was living with a man

who, according to Marthiljohni, "had a previous CPS case in Harris County."

Marthiljohni stated that she observed J.C. exhibit inappropriate behavior in front of

the children, such as confronting staff members, including Marthiljohni, and arguing with

21 Gonzales stated that she was aware that M.P. had been charged with two counts of assault against J.C. and that he pleaded guilty to one count of assault and was on probation at the tim e of the term ination hearing.

11 M.P. On one occasion, Marthiljohni, who was sitting across the room from J.C., told J.C.

that she was an advocate for the children; J.C. responded, "Well, what are you f-ing doing

in my face." Marthiljohni stated, "[T]his has been the most belligerent case that I have ever

had to be on." On another occasion, Marthiljohni heard J.C. "cussing and yelling up and

down the hallway because [M.P.] was leaving." J.C. stated, "Why are you f-ing leaving?"

The children were upset and crying when they overheard this.

Marthiljohni testified that it was CASA's recommendation that the trial court

terminate J.C.'s parental rights to B.R.P. and H.M.P. and that there should be a "no

contact" order because Marthiljohni was "concerned for the children's emotional well-being

and health." Marthiljohni explained that termination was in the children's best interest

because:

[J.C.] has been unstable in maintaining her emotions around the children. She's been vulgar to me at a time when the children were present. They were in the same hallway. They were right down the hallway and she was yelling and cussing and that was on August 21[, 2008]. I have concerns with when I'm observing her in the visits sometimes she's not paying attention to both children. I have serious concerns with her ability to parent.

....

I've had several conversations with [J.C.] and talked about the need to comply with services. She has not completed counseling. She's not completed parenting. She's not completed homemaker. There are a lot of things that she hasn't done that are not complicated services and they're at no cost to her. . . . To me that's a concern.

[J.C.] has had continued drug use. She did test—well, she admitted to using in March and then she refused to test, refused to test, refused to test, and then boom, in July [2008] when she had to take the test outside of the courtroom, she took the test, threw a fit when she had to take the test and was cussing and was pretty upset outside.

12 She took the test and then she had to take the hair follicle later that day. She did comply with those, but it was only because it was court-ordered.

[J.C. tested] [p]ositive for marijuana. On August 21, [2008] she admitted, after she had cussed me out, she admitted that she had used marijuana three days prior and she admitted in front of [Gonzales] also. This was at the CPS office.

[J.C.] had used marijuana during [H.M.P.'s] birth.

Dr. Moran, psychologist for TDFPS, testified that she received a referral to perform

a psychological examination of J.C. The referral indicated that "the initial concern was for

the welfare of the child when she was found to have swallowed [some] nails." Dr. Moran

stated that she was informed that "it was possible for an infant to swallow the nails due to

a sucking reflex and . . . there was some suspicion that maybe [H.M.P.] had picked them

up and maybe put them in [B.R.P.'s] mouth in an attempt to feed her."22 In her

psychological evaluation, Dr. Moran documented that the referral from TDFPS indicated

that H.M.P. "had been found holding nails in her hand, and there were nails in her room

as well." Dr. Moran considered the incident an "extremely dangerous" situation for B.R.P.

During the psychological examination, J.C. indicated that she was undergoing

psychiatric treatment and taking prescription medication because she had been diagnosed

with bipolar disorder and post-traumatic stress disorder. J.C. admitted to Dr. Moran that

there were periods of time when "she did not follow the doctor's orders and did not reliably

take her medication." J.C. told Dr. Moran that her parents had abused drugs and that

22 H.M.P. was two at the tim e of the incident.

13 when she moved to her grandparents' home, "she had difficulty adjusting to the positive

environment." J.C. stated that she began using marihuana and other drugs when she was

a teenager and had "significant behavior problems at school and at home." J.C.'s

behavioral problems when she was a student included: (1) noncompliance with authority;

(2) difficulty maintaining self-control when angry; and (3) angry outbursts.23 J.C.'s

grandparents sought psychiatric treatment for J.C. At the age of sixteen, J.C. left her

grandparents home and moved in with a boyfriend.

Dr. Moran opined that J.C. is in need of ongoing psychiatric treatment and that

although J.C. had received some treatment, "she really did not have . . . total symptom

control." Dr. Moran believed that J.C. has "a tendency to have manic thought processes"

and "some difficulties focusing her train of thought at that time." It was Dr. Moran's opinion

that J.C. needed domestic violence classes, "parent training[,] and counseling" because

J.C. needed to better understand her errors in judgment, such as her dysfunctional

relationships and unstable living arrangements. J.C. also needed to establish employment.

According to Dr. Moran, J.C., although "well-intentioned[,] had not yet achieved stability,

more than a year, a year and a half nearly after [TDFPS] initially became involved and that

was of concern to [Dr. Moran] given that [J.C.] was well aware that her children's custody

depend[ed] upon her stabilizing her life in each of these areas . . . sobriety, psychiatric

stability, stable relationships, stable home, et cetera." Due to J.C.'s unwillingness to make

and maintain the necessary changes over a significant period of time, Dr. Moran was not

"willing" to risk giving J.C. sole custody of the children; therefore, Dr. Moran recommended

23 According to Dr. Moran, J.C.'s current behavior is sim ilar to her behavior as a student.

14 that joint custody be given to J.C. and M.P.

J.C. acknowledged to Dr. Moran that she had used marihuana, but claimed that she

had been sober since October 2007 and assured Dr. Moran that she would continue to

maintain sobriety. J.C. was "aware that any recidivism into drug use would be considered

an egregious form of instability and could result in termination of her parental rights" and

that substance abuse caused a risk to her children. Dr. Moran stated that if someone with

J.C.'s background and symptoms had lied about "sobriety from the use of marihuana,"

there would be "a dangerous risk to young children placed in [her] care." Dr. Moran

elaborated, "[I]n particular with the psychiatric problems that [J.C.] has—use of any kind

of illegal drugs or alcohol in combination with the psychotropic [medication] is inadvisable.

It could present a risk to [J.C.'s] safety as well." When the children's attorney ad litem

asked Dr. Moran if her recommendation would be affected if she knew that J.C. had tested

positive for drugs on multiple occasions, Dr. Moran stated,

Yes. It really would because [J.C.] acknowledged to me that part of the reason she believes she did not achieve system control as a teenager, even though her grandparents had her undergoing psychiatric treatment, was that she continued to use illegal drugs while taking or not regularly taking her medications. I had very much hoped that that knowledge would lead to a change in her adult behavior and help her recognize that this psychiatric disorder is extremely serious and needs to be managed in a very structured [manner], fashioned under medical opinion[,] and if I find that she has not been doing that and has been interfering with her brain chemistry through illegal drugs, which she herself posed a problem before, it raises very serious concern about any change that she states she had made.

Dr. Moran opined that J.C. would require psychiatric treatment throughout her lifetime to

ensure that she lives "a stable and drug-free lifestyle."

Delores Tucker, who provides "parenting-homemaking services," testified that J.C.

and M.P. had attended individual parenting sessions with her that included lessons in basic

15 child development, behavior management, how to "follow-up" with the TDFPS service plan,

and activities for parents and children. According to Tucker, J.C. and M.P. attended one

session in February together, but thereafter, each parent attended individual sessions.24

J.C. did not receive a certificate of completion and attended only five sessions where

Tucker focused on helping J.C. "follow-through" on the service plan. Tucker stated, "I

really had more concern with [J.C. following through on the service plan] versus how she

was going to manage . . . the kids." During this period of time, Tucker was aware that J.C.

was refusing to take the drug tests required by the service plan. Tucker identified plaintiff's

exhibit 3 as M.P.'s certificate of completion of parenting class after thirteen sessions.

Tammy Harger, the BIP program coordinator for "Mid Coast Family Services,"

testified that M.P. has attended twenty-one BIP sessions and at the time of the hearing,

needed three more sessions; J.C. stopped attending the class on July 22, 2008 after

attending ten sessions. By that time, J.C. had been offered eighteen sessions and had

been "discontinued" from the class due to lack of attendance. J.C. had only paid forty

dollars for two sessions; however, Tucker explained that she would not have excluded J.C.

from attending classes even if she did not make the required payments.25

Amy Faust, a licensed professional counselor, testified that she counseled both J.C.

and M.P. The sessions were once a week with each parent individually. M.P. has

attended all of his scheduled sessions except for one, when he had to leave town.26

24 It appears from the record that J.C. and M.P. began individual counseling after they separated.

25 Each session costs twenty dollars.

26 M.P. had been attending counseling with Faust on a weekly basis since March 11, 2008 until the date of the term ination hearing on Septem ber 17, 2008. The last session with M.P. was on Septem ber 17.

16 According to Faust, J.C. has attended three sessions; J.C. "no-showed for a session,

meaning she missed a session without calling to cancel" and after missing a few more

sessions, J.C. stopped contacting Faust.

Based on her contact with J.C. and the reference materials supplied by TDFPS,

Faust believed that J.C. needed "[s]ome parenting [classes], some substance abuse

counseling perhaps, some relationship issues [counseling]." Faust stated that she had

worked with M.P. on parenting skills, communication skills, relationship skills and stress

and anxiety issues. Based on her experience with M.P., Faust believed that he had a

grasp of the issues and was making progress on those issues. According to Faust, "[M.P.]

learned some new things [regarding parenting]. . . . [H]e looks at the concept of parenting

from a little bit different perspective. . . . [T]he idea of protecting his children . . . has

changed a little bit. He's starting to see that they [the children] don't need just physical

protection, but that they need emotional and mental protection as well." Faust stated that

the children would be joining the counseling sessions with M.P. if he continued to progress.

M.P., as a witness for TDFPS, testified that he pleaded guilty to assaulting J.C.;

however, he claimed that he did not cause her physical injury. According to M.P., he had

been "abused" by J.C. on numerous occasions and that during the "fights," he defended

himself from her. M.P. understood, after completing BIP, that a man should not hit a

woman.

According to M.P., J.C smoked marihuana and there were instances where he

smelled the faint scent of the drug in the bathroom. M.P. claimed that he observed J.C.

under the influence of marihuana when he arrived home from work. M.P. stated, "I would

come home and smell [marihuana] and it would start an argument. There's even been a

17 time when I came home a little earlier. She was on the porch, had her joint in her hand.

At that time I took it from her hand, ripped it up and threw it on the ground and called the

cops." M.P. stated that he called the police because he did not want drugs around his

children. M.P. testified that he was aware that J.C. smoked marihuana when she was

alone with the children and that on those occasions, J.C. appeared "real relaxed."

However, M.P. did not want to state that the children were ever harmed by J.C.'s use of

marihuana.

M.P. recalled that the family was at a restaurant, and H.M.P. was refusing to walk

back to the table from the restroom. H.M.P. sat on the floor, and J.C. pulled H.M.P. by the

hair back to her seat. H.M.P. sat at the table and cried; H.M.P. was not allowed to leave

the table again. According to M.P., J.C. would sleep a lot during the day, and when he

would go home for lunch, the children would be awake, while J.C. slept on the couch. M.P.

also claimed that J.C. would yell "very loudly" at the children.

J.C. testified that she has bipolar disorder and takes two hundred milligrams of

"Lamictal." J.C. stated, the medication is "supposed to help me slow down my manic part.

To help me—it wasn't supposed to rid the manic part because you just can't rid it. It was

just supposed to level me."

J.C. explained that she "had no reason" for not completing the parenting classes but

that she did not have a phone and it was difficult for her to contact Tucker because she

had to borrow her neighbor's phone. J.C. indicated that she was supposed to complete

the BIP classes but that she stopped attending because she "lost her transportation" when

M.P. moved out of the home. J.C. claimed that although she asked Gonzales to "get out

of [her] face" in a "rude tone," she never used profane language.

18 J.C. admitted that she has tested positive for marihuana, but claimed that she was

sober when her children were born. J.C. explained that during her pregnancy, when she

lived in Jewett, "CPS" was monitoring her and testing her for drugs. J.C. tested positive

for marihuana when H.M.P. was born, but according to J.C., H.M.P. did not test positive

for the drug.27 J.C. stated that she was sober during her entire pregnancy with B.R.P.

According to J.C., she began smoking marihuana again due to depression, but that

she never smoked the drug "in front" of her children. J.C. stated that the smell of

marihuana in the house was caused by her smoking it on the front porch of the home. She

stated, "I would have a gate, a baby gate, and our couches were stationed—because we

had an old house—on the sides so the only thing they would get in—the room was

closed—was in the living room. They couldn't get through our house. I would sit outside

and I would take a couple of tokes from a joint and then I would come inside my—usually

[B.R.P.] was either having toys on the carpet playing around. I mean, I did bad for smoking

it while they were there, but I never smoked it in front of them."28

On cross-examination, J.C. clarified that the smell of marihuana drifted into the

house because she left the door open with the child's gate attached. J.C. stated that

27 Dr. Moran noted in the psychological evaluation that H.M.P. "was born testing positive for m arijuana."

28 Dr. Moran noted in J.C.'s psychological exam ination that J.C.

was observed to have a very short attention span, with distractibility, an elevated activity level, with constant fidgeting, im pulsive responding, and driven m otor m ovem ents. Her speech was rapid and pressured. . . . [J.C.'s] thoughts were not consistently goal-directed, and she introduced a num ber of irrelevant or tangetially-related details that contributed to run-on speech that required frequent redirection to the topic at hand, and her clinical presentation, even when seen on m edication, bore substantial sym ptom s of m ania.

W e note that at the term ination hearing, J.C.'s responses to questions lacked coherence and there are m any details of her answers that we are unable to decipher.

19 during the past year that TDFPS had been involved in the case, she had refused to take

three drug tests and had informed TDFPS that two of the tests were unnecessary because

she would test positive for marihuana. J.C. claimed that although she refused to take the

drug tests required by TDFPS, she went to the health department and took drug tests that

were negative; however, J.C. did not bring documentation of the negative results to court.

J.C. acknowledged that the trial court ordered her to take a cheek swab and hair follicle

drug test and that she tested positive for marihuana. When asked by the children's

guardian ad litem if she understood that she was not supposed to use any drugs to get her

children back, J.C. responded, "Yes."

J.C. agreed that marihuana use alters her state of mind; however, when asked if an

altered state of mind could affect her care of the children, J.C. responded:

Some people it's different. Not everybody is the same smoking. It's bad either way you look at it, yes, but some people it affects them differently.

Some people it relaxes them. Some people, you know, there's different, you know, there's different things that marijuana can do, you know, because it's a chemical getting into your brain and people has [sic] different chemicals in their brain, therefore, it can affect somebody way worse than it could affect somebody—just mellow. I mean, there's different ways it could affect a person's ability or anything.

When I meant mellow, I don't mean in a comastoke, [sic] you know, in a trance. I don't mean in a como, [sic] like, you know, like in a state where you're just like duh. I meant like relaxed as if, okay, you hear kids screaming or they want a toy or they're hungry or nothing. It would make me not so jumpy, or not so, you know, I would do what I got to do—I clean, you know, everything. I was quiet with my kids. I played with my kids. I mean it wasn't right that I was on the drug, but I wasn't pulling out my hair, screaming, yelling, hitting, nothing like that; nothing like that, but . . . I was under the influence.

20 J.C. further stated, "[I]t wasn't that I smoked a whole joint. I took a couple of hits and it

was—I was a little bit impaired, but it wasn't to the point where I am sitting on the floor and

my kids are running around with a dirty diaper or anything." When asked if she was

concerned that the children may have been inhaling second hand smoke from her "joint,"

J.C. responded:

They weren't because—no, they weren't because the gate was there and where I smoked, our house, the front door was right here, like the front door was right here and our porch was, I'm going to say the length of this room and I would be on the corner where there's trees and bushes and it would go, I mean there. I mean it was, everything was just closed.

I had a house in front of me. I had a house beside me. It was me and I would sit there. My kids couldn't, I mean my kids was [sic] at the thing and I could pop my head in and I could see them, but it was never where I'm sitting like five feet. It was always at least, I'd there be [sic] and the gate would be like, I mean the door would be right here.

J.C. admitted that she would sometimes interact with her children immediately after using

J.C. acknowledged that she was ordered to pay child support in the amount of

twenty dollars per month and that she did not pay "much" of that amount because she was

"giving it to her sister, Carrie," who had been given possession of the children. J.C. stated,

"I should have read my papers correctly—and it did state because showing, you are

showing me a piece of paper that we have to send it to the [TDFPS], I mean the Attorney

General. . . ." After the amount of child support was increased to $224 per month, J.C.

made a payment of approximately $650.

C. Section 161.001(1)(O)

In order for a court to terminate parental rights under section 161.001(1)(O), the

21 court must find by clear and convincing evidence that the parent "failed to comply with the

provisions of a court order that specifically established the actions necessary for the parent

to obtain the return of the child who has been in the permanent or temporary managing

conservatorship of the Department of Family and Protective Services for not less than nine

months as a result of the child's removal from the parent under Chapter 262 for the abuse

or neglect of the child."29

J.C. does not dispute that at the time of trial, the children had been in the temporary

managing conservatorship of TDFPS for not less than nine months as a result of the

children's removal under Chapter 262 for abuse or neglect. J.C. also concedes that

testimony "indicated that a court order was in place" and that she "violated a court order

by refusing a drug test." However, J.C. argues that based on this evidence, "it is

impossible to determine if [she] failed to comply with the provisions of a court order that

specifically established the actions necessary for her to obtain the return of her children"

because there is "no evidence relating to specific court orders." We disagree.

Although TDFPS did not offer the trial court's orders into evidence, it asked the trial

court to take judicial notice of the trial court's own file in the cause.30 A trial court may take

judicial notice of its own orders, records, and judgments rendered in cases involving the

29 T EX . F AM . C OD E A N N . § 161.001(1)(O).

30 See T EX . R. E VID . 201(b) (providing that judicial notice m ay be taken upon request at any stage of the proceedings of any adjudicative fact which "is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determ ination by resort to sources whose accuracy cannot reasonably be questioned").

22 same subject matter and between practically the same parties.31

J.C. did not object to TDFPS's request for the trial court to take judicial notice of its

file, which contained several of its orders involving the same subject matter and the same

parties. TDFPS acknowledges that the record does not reflect that the trial court ruled it

would take judicial notice of its file; however, a trial court need not announce that it is taking

judicial notice.32 Moreover, [j]udicial notice is mandatory when a party requests the court

do so and the party supplies the court 'with the necessary information.'"33 In this case, the

trial court had the necessary information, its own file, and TDFPS requested for the trial

court to take judicial notice of that file; therefore, judicial notice of the court's file was

mandatory.34 Thus, the trial court's orders requiring J.C. to comply with the service plan,

attend parenting classes, pay child support, and submit to random drug tests were properly

before the trial court. In its temporary order following the adversary hearing, the trial court

notified J.C. and M.P. that they were required to complete the actions ordered by the trial

court to "obtain the return of the children" and that "failure to fully comply with [the] orders

may result in the restriction or termination of [their] parental rights." At the termination

hearing, J.C. admitted that she had not complied with the service plan, attended parenting

31 In re Shell E&P, Inc., 179 S.W .3d 125, 130 (Tex. App–San Antonio 2005, orig. proceeding) ("The trial judge was entitled to take judicial notice of his own prior order entered in a related case between substantially the sam e parties.") (citing Gardner v. Martin, 162 Tex. 156, 345 S.W .2d 274, 276 (Tex. 1961)); Sierad v. Barnett, 164 S.W .3d 471, 481 (Tex. App.–Dallas 2005, no pet.); Brown v. Brown, 145 S.W .3d 745, 750 (Tex. App.–Dallas 2004, pet. denied); Bryan v. Blue, 724 S.W .2d 400, 402 (Tex. App.–W aco 1986, no writ); Escamilla v. Estate of Escamilla, 921 S.W .2d 723, 726 (Tex. App.–Corpus Christi 1996, writ denied).

32 Sierad, 164 S.W .3d at 481. W e note that during redirect exam ination of Gonzales, the attorney for TDFPS stated that the trial court had taken judicial notice of its file, and J.C. did not object.

33 Brown, 145 S.W .3d at 750 (citing T EX . R. E VID . 201(d)).

34 See id.

23 classes, or submitted to random drug tests. Furthermore, the trial court could have

reasonably believed Gonzales's testimony that J.C. failed to comply with the trial court's

orders requiring J.C. to submit to random drug tests and pay child support.35

After viewing the evidence in the light most favorable to the finding, we conclude

that there was legally sufficient evidence for a reasonable trier of fact to form a firm belief

or conviction that J.C. failed to comply with the provisions of a court order that specifically

established the actions necessary for the parent to obtain the return of the children.36

Furthermore, after examining the entire record, we conclude that the evidence was

factually sufficient to support the trial court's finding that J.C. violated section

161.001(1)(O). We overrule J.C.'s first issue.

D. Best Interest

By her second issue, J.C. contends that the evidence is factually insufficient to show

by clear and convincing evidence that termination of J.C.'s parental rights was in the best

interest of H.M.P. and B.R.P. J.C. argues that a reasonable factfinder could not have

resolved the disputed evidence in favor of its finding based on the following: (1) "this is not

a case where [J.C.] intentionally abused her children or treated them horribly"; (2) it is

undisputed that J.C. loves her children and did not knowingly cause them harm; (3) a

review of all of the evidence "suggested that the physical and emotional needs of the

children were being met before they were removed"; (4) there was no physical or emotional

abuse; (5) the "nail incident" was a "random accident precipitated by [M.P.'s] carelessness

35 In the Interest of T.N., 180 S.W .3d 376, 382-83 (Tex. App.–Am arillo 2005, no pet.) (providing that the trier of fact "m ay freely choose to believe all, part, or none of the testim ony espoused by any particular witness").

36 See In re J.L., 163 S.W .3d at 85.

24 in leaving nails accessible to the children"; (6) J.C. provided for B.R.P.'s medical care; (7)

J.C. "attempted to protect her children by leaving [M.P.] when he became abusive"; (8)

there was a general consensus among the caseworkers and family that J.C. interacted well

with [the children] and they loved her"; (9) J.C. missed "very few" visitations with the

children and she acted appropriately; (10) J.C. has committed to changing and improving

her life; (11) the abusive relationship with M.P. has ended and the children "will no longer

be subject to the arguments between" J.C. and M.P.; (12) J.C. has acknowledged her

mistakes; (13) J.C. has raised the children since their birth; (14) the evidence does not

show that J.C. "has caused the children any physical, emotional or developmental

problems"; (15) J.C. provided for the children's physical and emotional needs; (16) "several

witnesses testified that [J.C.] had the ability to manage and interact well with the children";

(17) although J.C. did not complete parenting classes, Tucker stated that J.C. "grasped the

parenting skills and was good at managing the kids"; (18) although J.C. did not comply with

the service plan, "she did try"; (20) J.C.'s "plans for the children and the stability of the

proposed placement weigh in favor of reversing complete termination; (21) J.C. "tried to

show at the hearing that she was no longer using marijuana"; (22) Dr. Moran

recommended joint custody; and (23) J.C. has made an effort to improve her life.

When considering whether parental termination is in the child's best interest, the

following non-exhaustive list of factors should be considered: (1) the desires of the child;

(2) the emotional and physical needs of the child now and in the future; (3) the emotional

and physical danger to the child now and in the future; (4) the parenting abilities of the

parties seeking custody; (5) the programs available to assist the parties seeking custody;

(6) the plans for the child by the parties seeking custody; (7) the stability of the home or

25 proposed placement; (8) the acts or omissions committed by the parent which may indicate

that the existing parent-child relationship is not proper; and (9) any excuse for the acts or

omissions committed by the parent.37 The party seeking parental termination is not

required to prove all nine factors.38 Furthermore, when the department or another

government agency is the petitioner, subsection 263.307(a) of the Family Code provides

that "the prompt and permanent placement of the child in a safe environment is presumed

to be in the child's best interest."39 Subsection (b) then lists thirteen factors that the court,

the department, or other authorized agencies should consider in determining whether a

parent is "willing and able to provide the child with a safe environment."40 In our review of

37 Holley v. Adams, 544 S.W .2d 367, 372 (Tex. 1976).

38 See In re C.H., 89 S.W .3d at 27 (providing that these considerations are not exhaustive, "or that all such considerations m ust be proved as a condition precedent to parental term ination") (em phasis in original); In re J.R.S., 232 S.W .3d 278, 284 (Tex. App–Fort W orth 2007, no pet.) ("These factors are not exhaustive; som e listed factors m ay be inapplicable to som e cases; other factors not on the list m ay also be considered when appropriate.").

39 T EX . F AM . C OD E A N N . § 263.307(a) (Vernon 2008).

40 Id. § 263.307(b). Those factors enum erated in section 263.307(b) include, am ong others, the following:

(1) the child's age and physical and m ental vulnerabilities;

(2) the frequency and nature of out-of-hom e placem ents;

(3) the m agnitude, frequency, and circum stances of the harm to the child;

(6) the results of psychiatric, psychological, or developm ental evaluations of the child, parents, other fam ily m em bers, or others who have access to the child's hom e;

(7) whether there is a history of abusive or assaultive conduct by the child's fam ily or others who have access to the child's hom e;

(8) whether there is a history of substance abuse by the child's fam ily or others who have access to the child's hom e;

26 the trial court's termination order, we will likewise give consideration to these factors to the

extent applicable.41

1. Desires of the children

Both children were under the age of five at the time this case was tried. However,

the record reflects that the children's behavior was better when J.C. and M.P were not with

the children, and that after completing parenting classes and attending counseling

sessions, M.P. had a better understanding of how to redirect the children's behavior,

especially, H.M.P., who by all accounts, was a very active toddler. Furthermore, there was

evidence that J.C. was not capable of redirecting H.M.P.'s behavior and in some instances,

instigated H.M.P.'s inappropriate behavior.42 Marthiljohni testified that she observed

H.M.P. spitting in J.C.'s face at one of the visitations and that although there was not a

"fight," J.C. and H.M.P "would fight back and forth between each other."

2. Present and future physical and emotional needs of the children

(10) the willingness and ability of the child's fam ily to seek out and accept, and com plete counseling services and to cooperate with and facilitate an appropriate agency's close supervision;

(11) the willingness and ability of the child's fam ily to effect positive environm ental and personal changes within a reasonable period of tim e. . . . Id.

41 See In the Interest of R.R., 209 S.W .3d 112, 116 (Tex. 2006) (per curiam ); In the Interest of S.N., 272 S.W .3d 45, 50-51 (Tex. App.–W aco 2008, no pet.); In re T.N.F., 205 S.W .3d 625, 632-33 n.3 (Tex. App.–W aco 2006, pet. denied).

42 In addition to the instances described above, G onzales testified that after J.C. visited with the children and M.P. began his visit with the children, the children had been crying for "awhile." After the children "settled down," as J.C. walked out of the building, J.C. "put her face to the wall [of the room where the children were visiting with M.P.] and scream ed, "bye [H.M.P.]" Marthiljohni testified that when J.C. encountered M.P. while visiting the children separately, J.C. would m ake inappropriate, "ugly" com m ents in front of the children to M.P. as he walked by her. Marthiljohni also stated that in the last visit she observed, J.C. acted "very juvenile" in her interaction with H.M.P. and it appeared as if J.C. was attem pting to upset or set H.M.P. off. This interaction disturbed Marthiljohni. According to Marthiljohni, after J.C. took som e earrings away from H.M.P., H.M.P. began crying and hitting J.C., and J.C. was unable to redirect H.M.P.

27 J.C. suffers from bipolar disorder and has admitted that she does not always take

her medication or follow the recommendations of the doctors concerning her condition.

Furthermore, although Dr. Moran testified that it is dangerous for a person with J.C.'s

medical needs to use marihuana, J.C. continues to insist that she uses it to "relax." It

appears from the record that J.C. does not appreciate the danger of using a mind-altering

drug while caring for her children, especially in light of her medical condition.

Marthiljohni testified that J.C. "has been unstable in maintaining her emotions

around the children" and has been "vulgar" and acted inappropriately by yelling and

screaming in front of the children. B.R.P. swallowed five nails while in J.C.'s care.

Marthiljohni stated that her understanding of the event was that H.M.P. acquired the nails

while in J.C.'s care, and believed that both J.C. and M.P. were responsible for the incident,

because M.P. left the nails in a bowl on the table and J.C. was at home with the children

when it happened. Marthiljohni understood that M.P. was at work when B.R.P. actually

swallowed the nails. Dr. Moran stated that H.M.P. was discovered holding nails in her

hand, and J.C. testified that she found the nails in B.R.P.'s diaper. According to J.C., she

would smoke marihuana while caring for her children. Gonzales stated that J.C. did not

notice when B.R.P., who was standing right next to J.C., took cigarettes out of J.C.'s purse.

From this evidence, the trial court could have reasonably inferred that J.C. was not properly

supervising the children when H.M.P. fed the nails to B.R.P. Marthiljohni stated that CASA

recommended that J.C.'s parental rights be terminated because she is concerned for the

emotional well-being and health of the children.

Phlaum testified that there had been referrals made regarding J.C. and M.P. in other

counties in Texas and that TDFPS had unsuccessfully attempted to make contact with J.C.

28 and M.P. regarding those referrals because the family was "moving about." J.C. testified

that TDFPS had investigated her parenting ability because J.C. had tested positive for

marihuana when she was pregnant with H.M.P., and there is evidence in the record that

H.M.P. suffered from a lung condition when she was born and had also tested positive for

marihuana.43

3. Present and future emotional and physical danger to the child

J.C. had a history of placing herself in environments where the children observed

physical abuse. According to M.P., when the children were in J.C.'s home, J.C. physically

abused him and he physically abused J.C. Furthermore, before visiting the children, J.C.

attacked M.P. in the parking lot. At the time of trial, J.C. lived with a man who had a history

with CPS; J.C. was not aware of why this man had been referred to CPS or whether he

had been cleared of any allegations.

J.C. engaged in illegal drug use even after being informed that she would not be

reunited with the children. J.C. testified that although she smoked marihuana, she never

did so in front of the children; however, she also stated that she was not negatively

affected by the drug because it only "relaxed" her and did not put her in a "trance." J.C.

believed that she was capable of supervising the children despite the fact that she had

been smoking marihuana. J.C.'s continued drug use and inability to recognize its dangers

43 See Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W .2d 81, 84 (Tex. App.–Dallas 1995, no writ) ("The use of drugs during pregnancy m ay be conduct which endangers the physical and em otional well-being of the child.") (citing In re Guillory, 618 S.W .2d 948, 951 (Tex. Civ. App.–Houston [1st Dist.] 1981, no writ)).

29 weigh strongly in support of finding that termination was in the children's best interest.44

A parent's engaging in illegal drug activity after agreeing not to do so in a service plan for

reunification with her children is sufficient to establish clear and convincing proof of

voluntary, deliberate, and conscious conduct that endangered the well-being of her

children.45 M.P. stated that he called the police when he smelled marihuana in their home,

and it is reasonable to infer that he would continue to contact authorities if J.C. continued

using drugs. Moreover, conduct that subjects a child to a life of uncertainty and instability

because of the probability that its parent or parents will be jailed because of illegal conduct

thereby leaving the child alone, endangers the child's physical or emotional well-being.46

4. Parental abilities of the person(s) seeking custody

The evidence shows that J.C. is unable to provide a safe and stable home for the

children. There was evidence that J.C. is not employed, and she is unable to provide

housing for her children without her new boyfriend's assistance. The boyfriend works a full-

time job; however, according to J.C., they could not afford housing in Victoria, which J.C.

claimed caused her inability to complete her service plan, attend parenting classes and

seek counseling. According to the evidence presented, J.C. constantly moved from county

to county with the children. J.C. was unable to supply TDFPS with a stable address during

44 See Toliver v. Tex. Dep't of Family & Protective Servs., 217 S.W .3d 85, 98 (Tex. App.–Houston [1st Dist.] 2006, no pet.) ("Evidence of narcotics use and its effect on a parent's life and her ability to parent m ay establish that the parent has engaged in an 'endangering course of conduct.'"); see also Latham v. Dep't of Family & Protective Servs., 177 S.W .3d 341, 348 (Tex. App.–Houston [1st Dist.] 2005, no pet.) (concluding that evidence of drug use by the parent coupled with continuing use even though the parent was aware that her parental rights were in jeopardy m ay establish an endangering course of conduct).

45 In the Interest of T.N., 180 S.W .3d at 383 (citing Robinson v. Tex. Dep't of Protective & Regulatory Servs., 89 S.W .3d 679, 686-87 (Tex. App.–Houston [1st Dist.] 2002, no pet.)).

46 Id.

30 the pendency of the proceedings, and although there is evidence that there is ample room

for the children at J.C.'s current residence, she was living at her boyfriend's home. Without

employment, J.C. is not able to afford her own home. Marthiljohni testified that she has

"serious concerns with [J.C.'s] ability to parent" the children, and Gonzales stated that she

believed that J.C. does not recognize inappropriate or dangerous situations regarding her

children.

H.M.P., a three-year-old child, has exhibited tantrums, and J.C. has not been able

to provide adequate redirection. The evidence shows that H.M.P. did not exhibit the

inappropriate behavior when J.C. and M.P. were absent. H.M.P. and B.R.P. have

witnessed J.C.'s physical and verbal altercations with M.P. and others. M.P. testified that

J.C. pulled H.M.P. across the floor by her hair when she was not able to deal with H.M.P.'s

behavior at a restaurant.

J.C. does not recognize the danger posed by smoking marihuana while caring for

two young children. Dr. Moran testified that had J.C. told her she was still using

marihuana; Dr. Moran would not have recommended reunification with the children.

5. Available assistance programs

J.C. has not completed any of the available assistance programs. At her first

meeting with caseworkers, J.C. indicated that she was not willing to comply with the service

plan, and in fact, did not comply with most of its requirements. Further, she failed to keep

her counseling appointments, indicating a lack of willingness to participate in the available

assistance. J.C. also refused to attend outpatient drug treatment as recommended.

Tucker testified that if the parent does not contact her, appointments for parenting classes

are not scheduled, but that J.C. had only scheduled five appointments with her from March

31 1, 2008 through August 1, 2008. According to Tucker, J.C. had "somewhat" grasped the

requirements presented in the parenting classes she attended, but when Tucker did visit

with J.C., the focus of the meeting was not on parenting skills but on assisting J.C. with

"follow[ing] through" with her service plan.

J.C.'s counselor, Faust, testified that she met with J.C. on three occasions, but that

J.C. then failed to attend several scheduled appointments and was eventually dropped as

a client. In plaintiff's exhibit 4, Faust's counseling progress reports regarding J.C. and

M.P., Faust documented that J.C. had not "yet accepted responsibility for her contribution

to the events that resulted in the removal of her children, and seems to blame [M.P.] for

the mistakes that brought the two of them to counseling." Faust also stated that J.C.'s

missed appointments "present[ed] a concern in regards to her commitment to treatment,

and that J.C.'s "lack of accountability adds concerns regarding and [sic] inability to succeed

in treatment." According to Faust's assessment, J.C. did not "appear committed to

treatment," and in the only session attended in the month of May 2008, J.C. "denied both

having run out of medicine that is meant to treat bipolar symptoms, and that she continues

to use marijuana." Faust noted that J.C. "appeared untruthful and guarded and conveyed

an air of manipulation" and that J.C. did "not speak to her children [or] indicate any

discomfort in being separated from them." The report indicates that J.C. showed "no

earnest interest in additional feedback or information."

Faust noted that she was concerned for the safety of the children "as [J.C.]

express[ed] no concern for their well-being and indicat[ed] no discomfort regarding the lack

of time she spends with them." In a progress report dated August 14, 2008, Faust

recommended "reunification with [M.P.] and the children" and "that the children have

32 limited, if any, contact with [J.C.] based on reported lack of responsibility on [J.C.'s] part."

Faust documented that "[r]eported behaviors by [J.C.] at the CPS office present[ed] a great

concern regarding the safety and well-being of the children should they continue to be in

the presence of [J.C.]."

6. Plans for the children by those individuals or by the agency seeking custody

TDFPS has been appointed permanent managing conservator of the children and

M.P. has been appointed possessory conservator. The evidence shows that M.P. is in

compliance with the terms of his service plan, and has completed parenting classes and

counseling.

J.C. has not followed through with court-ordered counseling or with outpatient drug

treatment. J.C. stated that she did not have a reason for not attending parenting classes,

except that she did not have a phone. From the first meeting with TDFPS, J.C. indicated

that she was unwilling to cooperate with caseworkers or complete the requirements of her

service plan. M.P. has complied with the requirements of the service plan, has completed

parenting classes, and is continuing to complete the rest of the requirements necessary

for reunification with his children.

Based on all of the evidence presented, and applying the best-interest factors, we

conclude that the trial court could reasonably have formed a firm conviction or belief that

termination of J.C.'s parental rights would be in the children's best interest. Accordingly,

we overrule J.C.'s second issue.

Because "[o]nly one predicate finding under section 161.001(1) is necessary to

support a judgment of termination when there is also a finding that termination is in the

33 child's best interest,"47 we need not address J.C.'s remaining issues on appeal pertaining

to sections 161.001(1)(D) and 161.001(1)(F) of the family code.48

III. CONSERVATORSHIP DETERMINATION

In her third issue, J.C. argues that the trial court erred by not appointing her as a

joint co-possessory conservator pursuant to section 153.191 of the family code because

the trial court did not find that "her parental possession of access would endanger the

physical or emotional welfare of the children."49

Section 153.191 mandates that the trial court appoint a "parent" possessory

conservator "who is not appointed as a sole or joint managing conservator unless [the trial

court] finds that the appointment is not in the best interest of the child and that parental

possession or access would endanger the physical or emotional welfare of the child"50

Here, J.C.'s parental rights were terminated by court order divesting her of "all legal

[parental] rights and duties."51 Moreover, the term "parent," as defined by the family code,

"does not include a parent to whom the parent-child relationship has been terminated."52

Thus, section 153.191 is inapplicable because J.C.'s parental rights have been terminated.

47 In re A.V., 113 S.W .3d 355, 362 (Tex. 2003).

48 See T EX . R. A PP . P. 47.1; Perez v. Tex. Dep't of Protective & Regulatory Servs., 148 S.W .3d 427, 434 (Tex. App.–El Paso 2004, no pet.); In re L.M., 104 S.W .3d 642, 647 (Tex. App.–Houston [1st Dist.] 2003, no pet.); see also In re C.C., No. 13-07-00541-CV, 2009 Tex. App. LEXIS 2239, at *24 (Tex. App.–Corpus Christi Apr. 2, 2009, no pet.) (m em . op.).

49 See T EX . F AM . C OD E A N N . § 153.191 (Vernon 2008).

50 Id.

51 See T EX . F AM . C OD E A N N . § 161.206(b) (Vernon 2008). Moreover, form er parents do not have standing to invoke a court's continuing jurisdiction over m anaging conservatorship issues nor do they have a right to visitation. In re Lambert, 993 S.W .2d 123, 132 (Tex. App.–San Antonio 1999, orig. proceeding).

52 T EX . F AM . C OD E A N N . § 101.024 (Vernon 2008).

34 Therefore, having determined that the evidence is sufficient to support termination of J.C.'s

parental rights, we conclude that the trial court did not err by not appointing J.C. as co-

possessory conservator.53 Finally, because M.P. does not appeal the trial court's

determination that he be appointed possessory conservator, and J.C. may not complain

about errors that do not harm her or that only influence other's rights,54 we cannot conclude

that the trial court erred in appointing M.P. possessory conservator.55 We overrule J.C.'s

third issue.

IV. CONCLUSION

We affirm the trial court's judgment.

______________________ LINDA REYNA YAÑEZ, Justice

Delivered and filed the 7th day of January, 2010.

53 Moreover, J.C . cites to no authority, and we find none, requiring a trial court to m ake a separate finding that parental possession or access would endanger the physical or em otional welfare of the children after term ination of the parent-child relationship.

54 See In re D.C., 128 S.W .3d 707, 713 (Tex. App.–Fort W orth 2004, no pet.) (concluding that m other had no standing on appeal to raise issue concerning service by publication on unknown biological father who did not appeal); In re B.B., 971 S.W .2d 160, 163 (Tex. App.–Beaum ont 1998, pet. denied) (providing that m other could not appeal term ination of father's parental rights when father did not appeal), disapproved of on other grounds, In re C.H., 89 S.W .3d at 26 (disapproving form ulation of standard of review).

55 See T EX . F AM . C OD E A N N . § 153.006 (a) (Vernon 2008) ("If a m anaging conservator is appointed, the court m ay appoint one or m ore possessory conservators."); id. § 263.404 (Vernon 2008) ("The court m ay render a final order appointing the departm ent as m anaging conservator of the child without term inating the rights of the parent of the child. . . .); see also id. § 153.005 (Vernon 2008) ("A m anaging conservator m ust be a parent, a com petent adult, an authorized agency, or a licensed child-placing agency.").