COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00244-CV
IN THE INTEREST OF J.T.J.M. AND J.M.-N.T.
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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
Appellant J.T. (Mother) appeals the trial court’s order terminating her
parental rights to her children, J.T.J.M. (J.M.) and J.M.-N.T. (J.T.). 2 We affirm.
See Tex. R. App. P. 43.2(a).
1 See Tex. R. App. P. 47.4. 2 We use aliases for the children and their relatives throughout this opinion. See Tex. R. App. P. 9.8(b)(2). I. BACKGROUND FACTS
Mother had two children: J.M., whose father was J.F.M. (Michael), and
J.T., whose father was J.N. (Nelson). Mother, who earned a college degree in
psychology, had a “long . . . history” with the Texas Department of Family and
Protective Services (DFPS) regarding J.M. and J.T., which included “a pattern of
inappropriate behavior and lack of cooperation” by Mother. Indeed, J.M. stated
that it was “common” for them to move to avoid DFPS investigators: “[DFPS]
comes to the house and we move. We moved five times.”
Mother lived in a trailer home with her boyfriend (Bobby), J.M., and J.T.
Bobby had an “extensive criminal history,” including convictions for possession of
marijuana, burglary of a habitation, assault of a family member with bodily injury,
and driving while intoxicated. On April 12, 2012, when J.M. was thirteen years
old and J.T. was nine years old, DFPS received a report that “marijuana [was]
being dealt out of [Mother’s] home” and that “the condition of the trailer they were
residing in . . . [had] dog feces all over the floor, holes in the walls, doors off the
hinges, and just concerns about the utilities as well.” The report also stated that
Mother had been high on drugs in front of J.M. and J.T.
Shanna Hartley, a DFPS investigator, went to J.M.’s and J.T.’s schools to
speak with them about the report. J.M. was resistant and uncooperative, and
J.T. denied the reported allegations. J.M. told Hartley that he did not have to
“deal with” Hartley because Mother had “beat” DFPS in the past. Hartley then
met with Mother, who also was uncooperative and intermittently hostile. Mother
2 told Hartley that she needed to speak with her father before she would answer
Hartley’s questions. Hartley left but returned a month later after Mother failed to
contact Hartley about her willingness to cooperate as promised. Mother would
not allow Hartley to enter the trailer, but Hartley noticed that the outside of the
trailer, which was in an isolated area, was not well kept: “There were issues with
the front door. It was broken at some point. There was . . . stuff in the front yard.
. . . I know there was like a table, an outside table. There was a bucket and a
water hose. . . . [Mother] was filling the bucket up with water from the water
hose.” 3 Mother denied the allegations raised in the report and explained that the
inside of the trailer had been dirty because “the dog had been sick at one point
and that he had had accidents on the floor.” Hartley requested that Mother take
a drug test, but Mother refused to do so. It appears this investigation was closed.
On July 12, 2012, DFPS received a second report regarding the conditions
J.M. and J.T. were living in. Specifically, the report alleged that (1) Mother had
been seen with track marks on her arms from intravenous drug use, (2) Bobby
had forced J.M. to drink beer, (3) Bobby had forced J.M. to put on hockey pads
so Bobby could hit J.M. “until [Bobby] was no longer upset with whatever
situation he was upset about,” (4) J.M. and J.T. were left alone with Bobby, and
(5) “there were roaches, raw sewage, and feces” in the trailer. Hartley spoke
with Nelson, who expressed concern for J.M., his stepson, and J.T., his
3 The report also suggested that the trailer did not have “food or sterile drinking water,” which Hartley could not confirm.
3 daughter. Hartley located Mother at her father’s house, but Mother refused to
cooperate until she could speak with her attorney. At this point, Hartley believed
the children could be in jeopardy and began to seek the removal of J.M. and J.T.
On July 27, 2012 shortly after J.M. turned fourteen, Nelson and J.M. went
to a DFPS office to report problems with J.M. and J.T.’s living situation. Lishawa
Jackson, a DFPS investigator supervisor, talked to J.M. and learned that Mother
and Bobby were using drugs in front of J.M. and J.T., Bobby and Mother had
verbal and physical fights in front of J.M. and J.T., and Bobby had been
physically violent with J.M. J.M. also reported that the trailer was “filthy.” J.M.
did not feel safe in the home and did not want to return to live with Mother and
Bobby. J.M. admitted that he previously had lied to Hartley because Mother told
him DFPS would send him “across country or to another state.”
On August 8, 2012, two DFPS investigators, Larry Reynolds and Andrea
Pickard, went to Mother’s trailer. Bobby answered the door but would not allow
Reynolds or Pickard to enter the trailer. Likewise, Mother would not allow them
to come inside the trailer or talk to J.M. and J.T., who Reynolds believed he
heard inside the trailer. This increased Reynolds’s concern for J.M.’s and J.T.’s
welfare. While Bobby was talking to Reynolds and Pickard, Reynolds noticed a
marijuana pipe lying on the edge of the porch.
The next day, DFPS filed a suit affecting the parent-child relationship (the
SAPCR), requesting permission to take possession of J.M. and J.T. and the
termination of Mother’s, Nelson’s, and Michael’s parental rights. See Tex. Fam.
4 Code Ann. § 262.101 (West 2008). The trial court entered an emergency order
for J.M. and J.T. to be removed immediately from Mother’s care. See id.
§ 262.102 (West Supp. 2013).
A full adversary hearing was held on September 5, 2012, at which the
attorney representing DFPS, Mother, Nelson, Helene Parker (J.M. and J.T.’s
attorney ad litem), and Mary Cartwright (J.M. and J.T.’s guardian ad litem)
appeared. Michael was not present at the hearing because DFPS had difficulty
locating him and had not yet served him with the SAPCR. After the hearing, the
trial court entered the following findings:
(1) there was a danger to the physical health or safety of the children which was caused by an act or failure to act of the person entitled to possession and for the children to remain in the home is contrary to the welfare of the children; (2) the urgent need for protection required the immediate removal of the children and reasonable efforts consistent with the circumstances and providing for the safety of the children, were made to eliminate or prevent the children’s removal; and (3) reasonable efforts have been made to enable the children to return home, but there is a substantial risk of a continuing danger if the children are returned home.
See Tex. Fam. Code Ann. § 262.201(b) (West Supp. 2013). The trial court also
entered temporary orders that appointed DFPS as temporary managing
conservator of J.M. and J.T., limited Mother’s and Nelson’s access to J.M. and
J.T., and required Mother and Nelson to pay child support and submit to a home
study. See id. § 105.001 (West 2008). DFPS placed J.M. and J.T. in foster care
with Nelson’s parents. See id. § 262.201(e).
5 The temporary orders required Mother to attend counseling sessions “to
address the specific issues that led to the removal of the child[ren] from the home
and any additional issues arising from the drug and alcohol evaluation or from
the counseling sessions to include anger management.” Mother further was
required to attend parenting classes; participate in a drug and alcohol
assessment; participate in a “Choosing Healthy Relationships” class; attend five
“AA/NA meetings per week”; submit saliva, urine, and hair samples to DFPS on
its demand for random drug testing; and “maintain suitable employment for a
period of at least six months and continuing through the pendency of this suit.” 4
Mother acknowledged that she understood the temporary orders and that she
would be “responsible for adhering to the order.”
At Mother’s first hair-follicle test, which occurred shortly after the full
adversary hearing, she tested positive for cocaine, codeine, and morphine. After
the full adversary hearing, DFPS assigned “more permanent” caseworkers,
Megan Hildewig and Jessica Davis, to facilitate reunification or termination.
Davis prepared a family-service plan that listed several “tasks” Mother needed to
complete to meet her goal of reunification with J.M and J.T. See id. §§ 263.101–
.102 (West 2008). These tasks included the requirements of the trial court’s
temporary orders. Mother never signed the family-service plan because Davis
4 Nelson also was ordered to participate in similar services.
6 could not locate her. 5 When Mother appeared for a supervised visit with J.M.
and J.T., Davis attempted to review the plan with Mother; however, Mother left
the office and did not return. Indeed, Mother admitted she failed to complete the
service plan but did not believe her rights would be terminated if she did not
follow the plan.
Although Mother had approximately thirty-seven opportunities to have
supervised visits with J.M. and J.T. during the nine months between the full
adversary hearing and the termination trial, she only visited them approximately
five times. Indeed, Mother occasionally would confirm a supervised visit only to
not show up. Mother’s failure to visit her children angered J.M. and disappointed
and saddened J.T. 6 Mother only attended six AA/NA meetings. Mother believed
that it was “good” to violate this provision of the trial court’s temporary orders
because she did not want to be around “all that drug talk.” Mother averred she
had been seeing a counselor but she refused to give DFPS any information
about her. Mother also did not take the parenting classes or secure steady
employment as required by the temporary orders. Mother acknowledged,
however, that “meetings and counseling and NA” would help her care for J.M.
and J.T. Even with these violations, Davis told Mother that there was still “hope”
5 DFPS later mailed a copy of the service plan to Mother and Mother’s attorney once she was located. 6 J.T. continued to have regular visits with Nelson.
7 she could keep J.M. and J.T. if she could show an attempt at compliance;
however, Mother did nothing.
J.M. and J.T.’s counselor, Tiffany Reves, stated that J.M. was very angry
with Mother because Mother would not protect him from Bobby and because
Mother used drugs. Both J.M. and J.T. told Reves that they believed Mother
chose drugs over her relationship with them. Reves noticed that J.M. and J.T.
improved after they were placed with Nelson’s parents. Reves saw no progress
or change in Mother. J.M. and J.T. told Reves that they wanted Mother to
voluntarily waive her parental rights so they could have a more stable and
structured existence. It appears, however, that J.M. and J.T. believed they could
talk to their mother more if her parental rights were terminated because DFPS
would not be involved and because Mother had difficulty complying with the
requirements of the temporary orders and the service plan. In fact, they
repeatedly told Nelson’s mother that “they want this to be over.”
After a status hearing and two permanency hearings, none of which
Mother attended, the trial court set the SAPCR for trial. 7 See id. §§ 263.202,
263.306 (West Supp. 2013), § 263.401 (West 2008). DFPS proceeded to seek
termination of Mother’s parental rights based on subsections (1)(D), (1)(E),
7 In the subsequent orders entered after these hearings, the trial court specifically approved DFPS’s family-service plans and made them orders of the court. We will refer to the family-service plans and the temporary orders simply as “the trial court’s orders.”
8 (1)(N), and (1)(O) of section 161.001. See id. § 161.001(1) (West Supp. 2013).
DFPS also sought termination of Michael’s parental rights, but not Nelson’s.
At the trial, which Mother sporadically attended, Mother testified and
admitted that she failed to comply with the trial court’s orders. She believed J.M.
lied to Jackson and Cartwright (the GAL) about his and J.T.’s living conditions
because he was angry with her and did not want to “share” Mother with Bobby.
Mother claimed that she was no longer involved with Bobby, that she was in
constant contact with J.M. and J.T. through text messages and Facebook posts,
and that she had cleaned the trailer. She also stated that she and J.T. wrote in
and exchanged journals as a way to communicate with each other. Mother
explained that she did not attend the pretrial hearings and parts of the trial
because she was “intimidated” and because she was represented by an attorney.
Although Mother testified that her family would help her if her parental rights were
not terminated and that she would be able to meet J.M.’s and J.T.’s needs, she
conceded that she had made no arrangements for insurance for J.M. or J.T. and
did not have steady employment, both of which were violations of the trial court’s
orders. Mother claimed that shortly before trial, J.T. hugged Mother and
whispered that she wanted to “come home.” In fact, Mother testified that J.M.
and J.T. did not want her parental rights terminated.
Mother’s father testified that Mother had been drug free since January
2013. He further stated that J.M. confessed that he had lied to Jackson about
Bobby’s physical abuse. Mother’s friend, Beverly Kuypers, testified that
9 termination would not be in J.M.’s and J.T.’s best interest because Mother is “one
of the best moms I know” when she is sober. Even so, Kuypers had “grave
concern” for J.M. and J.T. Kuypers saw mother “stoned” around J.M. and J.T.
and recounted that J.M. asked Kuypers to get him and J.T. away from Mother.
Further, Kuypers testified that J.M. also told her about the hockey-pad incident
with Bobby, that Mother put Bobby’s interests before J.M.’s and J.T.’s, and that
he had seen marijuana in Mother’s trailer.
The GAL recommended at trial that Mother’s parental rights be terminated.
She observed approximately three visits between Mother, J.M., and J.T.
Although the GAL observed a strong bond between Mother and J.T., both J.M.
and J.T. told the GAL that they wanted Mother’s parental rights to be terminated.
But J.T. did express that she wanted to continue to see Mother. Hildewig
testified that DFPS recommended termination of Mother’s parental rights
because it was in the best interest of J.M. and J.T. She further emphasized that
Mother accomplished none of the tasks set forth in the trial court’s orders.
Similarly, Davis testified that Mother did nothing to comply with the trial court’s
orders, failed to show up for two permanency conferences, failed to consistently
contact or visit J.M. and J.T., and could not provide J.M. and J.T. with a good
environment. Further, Davis stated that it was inappropriate for Mother to leave
J.M. and J.T. alone with Bobby.
Nelson testified that J.M. and J.T. need “closure” and that he thought
terminating Mother’s parental rights was in J.M.’s and J.T.’s best interest. Nelson
10 stated he has been supporting his parents in their efforts to raise J.M. and J.T.
Nelson confirmed that he would not prevent J.M. and J.T. from seeing Mother if
her parental rights were terminated but that it would be dangerous for J.M. and
J.T. to be with Mother in her current state. Nelson testified that he completed the
parenting class, attended AA meetings, never missed a visitation with J.M. and
J.T., held down a full-time job, and did not fail any drug test. Nelson’s mother
also testified that termination of Mother’s parental rights would be in J.M.’s and
J.T.’s best interest.
Eleven of the twelve jurors found that (1) termination was in J.M.’s and
J.T.’s best interest and (2) Mother (a) knowingly placed or allowed J.M. and J.T.
to remain in conditions or surroundings that endangered their physical or
emotional well-being, (b) engaged in conduct or knowingly placed J.M. and J.T.
with persons who engaged in conduct that endangered the physical or emotional
well-being of J.M. and J.T., (c) failed to comply with the trial court’s orders
establishing the actions necessary for Mother to obtain J.M.’s and J.T.’s return,
and (d) constructively abandoned J.M. and J.T. The trial court entered a final
order of termination terminating Mother’s parental rights to J.M. and J.T.:
Based upon the jury’s verdict and the evidence submitted at trial, the Court finds by clear and convincing evidence that termination of the parent-child relationship between [Mother] and [J.M. and J.T.], the children the subject of this suit, is in the children’s best interest.
The Court finds by clear and convincing evidence that [Mother] has:
11 knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children;
engaged in conduct, or knowingly placed the children with persons who engaged in conduct, which endangered the physical or emotional well-being of the children;
failed 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 have been in the temporary managing conservatorship of [DFPS] for not less than nine months as a result of the children’s removal from the parent . . . for the abuse or neglect of the children; and
constructively abandoned the children who have been in the temporary managing conservatorship of [DFPS] or an authorized agency for not less than six months and: (a) [DFPS] . . . has made reasonable efforts to return the children to the mother; (b) the mother has not regularly visited or maintained significant contact with the children; and (c) the mother has demonstrated an inability to provide the children with a safe environment.
See Tex. Fam. Code Ann. § 161.206 (West 2008). The trial court also
terminated Michael’s parental rights to J.M. by default. See id. § 161.002(b)
(West 2008). The trial court appointed DFPS as J.M. and J.T.’s managing
conservator. See id. § 161.207 (West 2008).
Mother filed a motion for new trial, arguing that the evidence was legally
and factually insufficient to support the trial court’s termination judgment. See
Tex. R. Civ. P. 324(b). The motion was overruled by operation of law. See Tex.
R. Civ. P. 329b(c). Mother then filed a timely accelerated appeal. See Tex. R.
App. P. 26.1(b), 28.4(a)(1). Michael did not appeal the termination of his parental
rights to J.M.
12 II. LEGAL CONSIDERATIONS IN PARENTAL-TERMINATION CASES
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever permanently
the relationship between a parent and a child, it must first observe fundamentally
fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v.
Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)). We strictly
scrutinize termination proceedings and strictly construe involuntary termination
statutes in favor of the parent. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012);
E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2013), § 161.206(a)
(West 2008); E.N.C., 384 S.W.3d at 802. “[C]onjecture is not enough.” E.N.C.,
384 S.W.3d at 810. Due process demands this heightened standard because
“[a] parental rights termination proceeding encumbers a value ‘far more precious
than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.
at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see
also E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it “will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
13 the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West
2008); E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, DFPS must
establish by clear and convincing evidence that the parent’s actions satisfy one
ground listed in family code section 161.001(1) and that termination is in the best
interest of the child. Tex. Fam. Code Ann. § 161.001; E.N.C., 384 S.W.3d at
803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
established; termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—
Fort Worth 2012, no pet.).
III. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
1. Standards of Review
In evaluating the evidence for legal sufficiency in parental-termination
cases, we determine whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We
review all the evidence in the light most favorable to the finding and judgment.
Id. We resolve any disputed facts in favor of the finding if a reasonable fact-
finder could have done so. Id. We disregard all evidence that a reasonable fact-
finder could have disbelieved. Id. We consider undisputed evidence even if it is
14 contrary to the finding. Id. That is, we consider evidence favorable to
termination if a reasonable fact-finder could, and we disregard contrary evidence
unless a reasonable fact-finder could not. See id. “A lack of evidence does not
constitute clear and convincing evidence.” E.N.C., 384 S.W.3d at 808.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the fact-finder’s province. J.P.B.,
180 S.W.3d at 573, 574. And even when credibility issues appear in the
appellate record, we defer to the fact-finder’s determinations as long as they are
not unreasonable. Id. at 573.
In reviewing the evidence for factual sufficiency, we give due deference to
the fact-finder’s findings and do not supplant the verdict with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a fact-finder could reasonably form a firm conviction or belief that the
parent violated subsection (1)(D), (1)(E), (1)(N), or (1)(O) of section 161.001 and
that the termination of the parent-child relationship would be in the best interest
of the children. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28
(Tex. 2002). If, in light of the entire record, the disputed evidence that a
reasonable fact-finder could not have credited in favor of the finding is so
significant that a fact-finder could not reasonably have formed a firm belief or
conviction in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
15 2. Section 161.001(2): Best Interest
In her first issue, Mother argues that the evidence was legally and factually
insufficient to support the jury’s finding that termination of her parental rights was
in the best interest of J.M. and J.T. There is a strong presumption that keeping a
child with a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006). Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. Tex. Fam. Code
Ann. § 263.307(a) (West 2008).
We review the entire record to determine the child’s best interest. In re
E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative
of both the subsection-(1) ground and the best-interest determination. C.H., 89
S.W.3d at 28; see E.C.R., 402 S.W.3d at 249. Nonexclusive factors that the trier
of fact in a termination case may also use in determining the best interest of the
child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
16 (G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted);
E.N.C., 384 S.W.3d at 807; see E.C.R., 402 S.W.3d at 249 (stating that in
reviewing a best-interest finding, “we consider, among other evidence, the Holley
factors”).
These factors are not exhaustive; some listed factors may be inapplicable
to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of
just one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
The evidence at trial showed that J.M. and J.T. told multiple people that
they wanted Mother’s parental rights terminated. Although their understanding of
the effect of termination was contradictory at times, they consistently expressed
that they wanted stability and that continued contact with Mother would not
achieve that. J.M. and J.T. received their desired stability with Nelson’s parents.
J.M. expressed that he did not feel safe with Mother. Reves, Nelson, Davis, and
Kuypers testified that J.M. and J.T. had improved since being removed from
Mother and placed with Nelson’s parents. Indeed, J.M. had been failing school
17 and J.T. had “not a lot of involvement or excitement about school” when they
lived with Mother. Once they were placed with Nelson’s parents, J.M.’s grades
dramatically improved, and J.T. became less anxious. Kuypers, Nelson, and
Davis stated that Mother could not provide J.M. and J.T. with a safe and stable
environment. Further, Mother admitted that she failed to comply with the trial
court’s orders. Although Mother testified that she was no longer using drugs, a
hair strand drug test that was administered a week to two weeks before trial was
positive for cocaine, indicating that Mother had used cocaine within the previous
ninety days. She further conceded that she had been arrested in October 2012
for possession of a controlled substance and that she had been high around J.M.
and J.T. in the past. Hildewig, Nelson, Nelson’s mother, and Davis testified that
it would be in J.M. and J.T.’s best interest to terminate Mother’s parental rights.
Considering the relevant factors, we hold that, in light of the entire record,
and giving due consideration to evidence that the jury reasonably could have
found to be clear and convincing, the jury reasonably could have formed a firm
belief or conviction that termination of Mother’s parental rights was in J.M.’s and
J.T.’s best interest. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth
2009, pet. denied) (holding “stability and permanence” found in foster care and
children’s improving condition sufficient to support best-interest finding); Adams
v. Tex. Dep’t of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—
Houston [1st Dist.] 2007, no pet.) (considering children’s stated desire to remain
with foster family supportive of best-interest determination); In re S.B., 207
18 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (holding that
evidence of parent’s failure to comply with family-service plan supported finding
that termination was in child’s best interest); Smith v. Tex. Dep’t of Protective &
Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.—Austin 2005, no pet.) (“[I]n
considering the best interest of the child, evidence of a recent turn-around in
behavior by the parent does not totally offset evidence of a pattern of instability
and harmful behavior in the past.”). We overrule issue one.
3. Section 161.001(1): Prohibited Actions
In issues two, three, four, and five, Mother challenges the legal and factual
sufficiency of the evidence to support each section-161.001(1) ground alleged by
DFPS and found by the jury. Here, the trial court concluded, based upon the jury
findings, that clear and convincing evidence supported four of section
161.001(1)’s prohibited actions: (1)(D), (1)(E), (1)(N), and (1)(O). We need only
conclude that one of the prohibited actions listed in section 161.001(1) was
supported by sufficient evidence. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
(“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 her fifth issue, Mother asserts that the evidence was legally and factually
insufficient to support the finding that Mother failed to comply with the provisions
of a court order that “specifically established the actions necessary for [her] to
obtain the return” of J.M. and J.T. Tex. Fam. Code Ann. § 161.001(1)(O).
19 Mother focuses her argument on the fact that the counseling providers listed in
the trial court’s orders were either no longer under contract to provide services in
DFPS cases or contained incorrect contact information. But Mother admitted at
trial that she did not attend the required AA/NA meetings, intentionally missed
multiple supervised visits with J.M. and J.T., failed to attend parenting classes,
and did not find and keep a full-time job for six months; all of which were
mandated in the trial court’s orders. In further violation of the trial court’s orders,
the record shows that Mother failed to pay the child support ordered by the trial
court and was arrested in October 2012 for possession of a controlled substance.
Although Mother testified that she did not believe noncompliance with the trial
court’s orders would result in the termination of her parental rights, the orders
specifically and repeatedly provided (in all capitals and bold type) that
noncompliance could result in termination. Further, Davis counseled Mother that
she could avoid termination if she attempted to comply with the trial court’s
orders; however, Mother continued to be noncompliant. This evidence was
legally and factually sufficient to allow the fact-finder to determine that Mother
failed to comply with the trial court’s orders as required to gain the return of J.M.
and J.T. We overrule issue five.
IV. CONCLUSION
Because legally and factually sufficient evidence supported the fact-
finder’s conclusions that Mother violated section 161.001(1)(O) and that
termination was in J.M.’s and J.T.’s best interest under section 161.001(2), we
20 overrule issues one and five. Because we overrule issue five, we need not
address issues two, three, and four. See A.V., 113 S.W.3d at 362. As such, we
affirm the trial court’s judgment.
LEE GABRIEL JUSTICE
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
DELIVERED: December 19, 2013