Opinion issued December 15, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00734-CV ——————————— IN THE INTEREST OF J.M.H.
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2014-05259J
MEMORANDUM OPINION
This is an accelerated appeal from a decree terminating parental rights. In
two issues, the mother asserts that the evidence was legally and factually
insufficient to support termination based on endangerment and best-interest
findings. See TEX. FAM. CODE §§ 161.001(1)(E) & (2). We find sufficient evidence
to support the trial court’s decree, and we affirm. Background
The child involved in this proceeding initially lived with her mother and
maternal grandmother at the grandmother’s home. The child’s father did not live
with the family or appear at any point in the termination proceedings.
The Department of Family and Protective Services initially investigated the
family after the grandmother’s boyfriend sexually abused one of the grandmother’s
other children. The Department investigated the family again upon reports that the
appellant in this case, who was 16 years old at the time, ran away from home with
her infant child, who was then under a year old, thereby placing the child in
danger.
The mother initially placed her child in the care of a cousin, and she made
preparations to place the child with the cousin permanently. In a subsequent
incident, several of the mother’s relatives kicked down the cousin’s door in an
attempt to retrieve the child. Afterwards, the grandmother told law enforcement
that if the mother returned to her home she would “beat her.” The mother informed
the Department that if forced to stay with the grandmother, she would continue to
run away.
The Department initiated this proceeding to terminate the mother’s parental
rights. Pursuant to temporary court orders, the Department removed the child from
the home and was named the child’s temporary conservator, and the mother was
2 ordered to complete a family service plan. Among other requirements, the plan
mandated a psychological evaluation, drug and alcohol assessment, and individual
counseling, and it required the mother to complete high school and remain drug-
free. The mother completed a psychological assessment in accordance with the
plan, but she failed to attend the required individual and family therapy, allegedly
because she ran away once more.
The psychological assessment showed that the mother had a borderline
intellectual disability, as well as both ADHD and bipolar disorder. At a subsequent
status hearing, the mother tested positive for both cocaine and marijuana. The
mother claimed that she did not use cocaine and did not know why the initial test
was positive. She did acknowledge regular use of marijuana. A later test was
positive only for marijuana.
The Department initially placed the child with another one of the mother’s
cousins, but that cousin tested positive for marijuana, and the child was removed.
The Department denied placement with the grandmother because of the prior
instance of child abuse at the home, as well as the fact that the grandmother’s
current husband was in prison for an unrelated murder. The Department eventually
placed the child with a foster family. According to the foster mother, at the
beginning of the placement the child smelled of cigarettes and had a deep cough.
3 The child also would cry frequently and have difficulty sleeping. These issues
considerably improved over the course of the foster care placement.
The trial court terminated the mother’s parental rights, relying on the
grounds that she “engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional well-being of
the child” and that she failed to comply with the provisions of the court-ordered
family service plan. See TEX. FAM. CODE §§ 161.001(1)(E) & (O). The court ruled
that the child should remain in the current placement with the foster family. The
mother appealed.
Analysis
On appeal, the mother contends that the evidence was legally and factually
insufficient to support the finding of endangerment under Texas Family Code
section 161.001(1)(E), and the finding that termination of her parental rights was in
the best interest of the child under Texas Family Code section 161.001(2).
For the Department to terminate parental rights under section 161.001 of the
Family Code, it must establish by clear and convincing evidence that the parent
committed one or more of the statute’s enumerated acts or omissions that justify
termination, and also that termination is in the best interest of the child. TEX. FAM.
CODE § 161.001. Clear and convincing proof is the “measure or degree of proof
which will produce in the mind of the trier of fact a firm belief or conviction as to
4 the truth of the allegations sought to be established.” In re C.H., 89 S.W.3d 17, 23
(Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)). “Only
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 child’s best
interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
The appellate standard for reviewing factual findings in a termination
proceeding is “whether the evidence is such that a factfinder could reasonably form
a firm belief or conviction about the truth of the State’s allegations.” C.H., 89
S.W.3d at 25. This standard “retains the deference an appellate court must have for
the factfinder’s role.” Id. at 26. The appellate court “should consider whether
disputed evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding.” In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002). If the court of appeals concludes that a factfinder could not have reasonably
formed a firm belief or conviction, the evidence is factually insufficient, and the
court “should detail in its opinion why it has concluded that a reasonable factfinder
could not have credited disputed evidence in favor of the finding.” Id. at 266–67.
Legal sufficiency is similarly determined by “whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.” Id. at
266. To review legal sufficiency, an appellate court looks at all the evidence in the
light most favorable to the finding, and “must assume that the factfinder resolved
5 disputed facts in favor of its finding if a reasonable factfinder could do so.” Id. If
the appellate court determines that no reasonable factfinder could form a firm
belief or conviction that the matter that must be proven is true, it must conclude
that the evidence is legally insufficient. Id.
I. Sufficiency of the evidence of endangerment
The mother challenges the sufficiency of the evidence to support termination
of her parental rights under section 161.001(1)(E), claiming that she did not engage
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Opinion issued December 15, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00734-CV ——————————— IN THE INTEREST OF J.M.H.
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2014-05259J
MEMORANDUM OPINION
This is an accelerated appeal from a decree terminating parental rights. In
two issues, the mother asserts that the evidence was legally and factually
insufficient to support termination based on endangerment and best-interest
findings. See TEX. FAM. CODE §§ 161.001(1)(E) & (2). We find sufficient evidence
to support the trial court’s decree, and we affirm. Background
The child involved in this proceeding initially lived with her mother and
maternal grandmother at the grandmother’s home. The child’s father did not live
with the family or appear at any point in the termination proceedings.
The Department of Family and Protective Services initially investigated the
family after the grandmother’s boyfriend sexually abused one of the grandmother’s
other children. The Department investigated the family again upon reports that the
appellant in this case, who was 16 years old at the time, ran away from home with
her infant child, who was then under a year old, thereby placing the child in
danger.
The mother initially placed her child in the care of a cousin, and she made
preparations to place the child with the cousin permanently. In a subsequent
incident, several of the mother’s relatives kicked down the cousin’s door in an
attempt to retrieve the child. Afterwards, the grandmother told law enforcement
that if the mother returned to her home she would “beat her.” The mother informed
the Department that if forced to stay with the grandmother, she would continue to
run away.
The Department initiated this proceeding to terminate the mother’s parental
rights. Pursuant to temporary court orders, the Department removed the child from
the home and was named the child’s temporary conservator, and the mother was
2 ordered to complete a family service plan. Among other requirements, the plan
mandated a psychological evaluation, drug and alcohol assessment, and individual
counseling, and it required the mother to complete high school and remain drug-
free. The mother completed a psychological assessment in accordance with the
plan, but she failed to attend the required individual and family therapy, allegedly
because she ran away once more.
The psychological assessment showed that the mother had a borderline
intellectual disability, as well as both ADHD and bipolar disorder. At a subsequent
status hearing, the mother tested positive for both cocaine and marijuana. The
mother claimed that she did not use cocaine and did not know why the initial test
was positive. She did acknowledge regular use of marijuana. A later test was
positive only for marijuana.
The Department initially placed the child with another one of the mother’s
cousins, but that cousin tested positive for marijuana, and the child was removed.
The Department denied placement with the grandmother because of the prior
instance of child abuse at the home, as well as the fact that the grandmother’s
current husband was in prison for an unrelated murder. The Department eventually
placed the child with a foster family. According to the foster mother, at the
beginning of the placement the child smelled of cigarettes and had a deep cough.
3 The child also would cry frequently and have difficulty sleeping. These issues
considerably improved over the course of the foster care placement.
The trial court terminated the mother’s parental rights, relying on the
grounds that she “engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional well-being of
the child” and that she failed to comply with the provisions of the court-ordered
family service plan. See TEX. FAM. CODE §§ 161.001(1)(E) & (O). The court ruled
that the child should remain in the current placement with the foster family. The
mother appealed.
Analysis
On appeal, the mother contends that the evidence was legally and factually
insufficient to support the finding of endangerment under Texas Family Code
section 161.001(1)(E), and the finding that termination of her parental rights was in
the best interest of the child under Texas Family Code section 161.001(2).
For the Department to terminate parental rights under section 161.001 of the
Family Code, it must establish by clear and convincing evidence that the parent
committed one or more of the statute’s enumerated acts or omissions that justify
termination, and also that termination is in the best interest of the child. TEX. FAM.
CODE § 161.001. Clear and convincing proof is the “measure or degree of proof
which will produce in the mind of the trier of fact a firm belief or conviction as to
4 the truth of the allegations sought to be established.” In re C.H., 89 S.W.3d 17, 23
(Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)). “Only
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 child’s best
interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
The appellate standard for reviewing factual findings in a termination
proceeding is “whether the evidence is such that a factfinder could reasonably form
a firm belief or conviction about the truth of the State’s allegations.” C.H., 89
S.W.3d at 25. This standard “retains the deference an appellate court must have for
the factfinder’s role.” Id. at 26. The appellate court “should consider whether
disputed evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding.” In re J.F.C., 96 S.W.3d 256, 266 (Tex.
2002). If the court of appeals concludes that a factfinder could not have reasonably
formed a firm belief or conviction, the evidence is factually insufficient, and the
court “should detail in its opinion why it has concluded that a reasonable factfinder
could not have credited disputed evidence in favor of the finding.” Id. at 266–67.
Legal sufficiency is similarly determined by “whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.” Id. at
266. To review legal sufficiency, an appellate court looks at all the evidence in the
light most favorable to the finding, and “must assume that the factfinder resolved
5 disputed facts in favor of its finding if a reasonable factfinder could do so.” Id. If
the appellate court determines that no reasonable factfinder could form a firm
belief or conviction that the matter that must be proven is true, it must conclude
that the evidence is legally insufficient. Id.
I. Sufficiency of the evidence of endangerment
The mother challenges the sufficiency of the evidence to support termination
of her parental rights under section 161.001(1)(E), claiming that she did not engage
in conduct or knowingly place her child with persons who engaged in conduct that
endangered the child’s physical or emotional well-being. However, the mother
does not challenge the trial court’s finding that she did not comply with the family
service plan and thus was subject to termination under section 161.001(1)(O).
Because the mother did not challenge both statutory predicate grounds for
termination, we need not review the merits of her challenge to the endangerment
finding. The trial court found that both statutory grounds supported termination of
the mother’s parental rights. “[C]lear and convincing proof of any one ground will
support a judgment terminating parental rights, if similar proof also exists that
termination is in the child’s best interest.” In re S.M.R., 434 S.W.3d 576, 580 (Tex.
2014); see TEX. FAM. CODE § 161.001; A.V., 113 S.W.3d at 362. The mother did
not challenge the trial court’s finding regarding failure to comply with the family
service plan, and as a result we conclude that the trial court did not err in finding
6 predicate grounds for termination pursuant to section 161.001(1). See Toliver v.
Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 102 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (holding that court did not need to address
sufficiency argument regarding one ground for termination when appellant failed
to challenge three other section 161.001(1) grounds).
We overrule the mother’s first issue.
II. Sufficiency of the evidence for best-interest finding
The mother also challenges the legal and factual sufficiency of the evidence
supporting the trial court’s finding that termination of parental rights is in the
child’s best interest. Unchallenged predicate findings can support a finding that
termination of a parent’s rights is in the child’s best interest. See C.H., 89 S.W.3d
at 28; see also In re M.S., No. 01-15-00451-CV, 2015 WL 5769993, at *5 (Tex.
App.—Houston [1st Dist.] Sept. 29, 2015, no pet.).
When reviewing a finding that termination of parental rights is in the child’s
best interest, we consider the factors set forth in Holley v. Adams, 544 S.W.2d 367
(Tex. 1976) which include: (1) the child’s desires; (2) the child’s present and future
emotional and physical needs; (3) any present or future emotional or physical
danger to the child; (4) the parental abilities of the individuals seeking custody;
(5) available programs that could assist the individuals seeking custody to promote
the child’s best interest; (6) the plans for the child by the individuals or agents
7 seeking custody; (7) the stability of the home or proposed placement; (8) the
parent’s acts or omissions which may indicate that the existing parent-child
relationship is improper; and (9) any excuse for the parent’s acts or omissions.
Holley, 544 S.W.2d at 371–72. These factors are not exhaustive, and not all of
them must be proved as a condition precedent to parental termination. C.H., 89
S.W.3d at 27. Evidence that establishes one of the predicate acts under section
161.001(1) can also be relevant to determining the best interest of the child. See id.
at 28.
We conclude that there was sufficient evidence for the trial court to form a
firm belief or conviction that termination of parental rights was in the best interest
of the child. Because she was under a year of age during the events leading to trial,
the child was too young to express her wants or desires to the court. However, the
Department presented clear and convincing evidence of emotional and physical
danger. The foster mother testified that after leaving the mother’s care, the child
had a bad cough, trouble sleeping, and emotional issues including frequent crying.
These issues improved after the child was placed in foster care. Furthermore, the
violent acts of the mother’s family members supported the trial court’s conclusion
that there was a risk for future emotional or physical danger to the child if the
mother were to retain her parental rights.
8 The mother’s acts and omissions also supported the finding that termination
of parental rights is in the child’s best interest. The mother failed to complete
counseling and tested positive for drug use. She repeatedly ran away, which
indicated the instability of the child’s home. The trial court’s unchallenged finding
that the mother did not comply with the court-ordered family service plan also
supports the finding that termination was in the best interest of the child. See id.
Viewing all the evidence in the light most favorable to the judgment, we
conclude that a reasonable factfinder had sufficient evidence to form a firm belief
or conviction that termination of the mother’s parental rights was in the child’s best
interest. See TEX. FAM. CODE § 161.001(2); J.F.C., 96 S.W.3d at 266. Accordingly,
we hold that the evidence is legally and factually sufficient to support the trial
court’s ruling, and we overrule the mother’s second issue.
Conclusion
We affirm the decree of the trial court.
Michael Massengale Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.