Opinion issued May 26, 2016
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-01095-CV ——————————— IN RE K.P., A MINOR CHILD,
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2011-00785J
OPINION
This is an accelerated appeal of a December 3, 2015 judgment terminating
Mother’s parental rights to KP, her 12-year-old son. On March 29, 2012, the trial
court denied an earlier petition to terminate Mother’s parental rights to KP and
instead named the Department of Public and Protective Services (referred here
throughout as “Department” or “DFPS”) as sole managing conservator and Mother as possessory conservator. After the underlying November 2015 trial that is the
subject of this appeal, the court found that circumstances have materially and
substantially changed since the prior order denying termination was entered and
entered a judgment on December 3, 2015, continuing the Department as sole
managing conservator and terminating Mother’s parental rights. We affirm.
TRIAL PROCEEDINGS AND EVIDENCE – TERMINATION TRIAL
Several exhibits were introduced at the beginning of the November 2015
trial that provide background about the case. One establishes, through DNA
testing, that the only person identified as potentially being KP’s father was not his
father. Mother testified at trial that she did not know who else might be the father,
and a search of the Paternity Registry did not reveal any notice of intent to claim
paternity of KP.
A. Documents related to the 2012 Proceedings
A February 2, 2011 affidavit in support of KP’s removal was entered into
evidence at the 2015 trial. It indicated that KP was, at that time, residing in a
medical facility, and that the Department had been unable to ascertain where, and
with whom, KP had lived the previous five years. It listed the following as “Facts
Necessitating Removal of the Child”:
On September 15, 2009, the Department of Family and Protective Services received a referral alleging physical abuse of 7 year old, [KY] (DOB 5/31/02) by the mother, []. The report indicated [KY] was hospitalized for a psychiatric evaluation, because she 2 attempted to assault the mother, []. During the course of the investigation, [KY] disclosed that she was spanked by her mother, [], resulting in bruising on her lower back and upper buttocks. The mother [] indicated she has a diagnosis of Bipolar Disorder and Depression, and there were concerns of domestic violence between the mother, [] and the step-father, [JL]. The case disposition was ruled out, however risk indicated, and the case was transferred to Family Based Safety Services. ([KP], the child the subject of this suit, was not mentioned in the September 15, 2009 referral.) The parents, [Mother] and the step-father, [JL] were asked to participate in parenting classes and domestic violence counseling. [Mother] was also asked to complete a psychological evaluation and follow the recommendations from the evaluation. [Mother] and [JL] both completed parenting classes and domestic violence classes; however [Mother] refused to cooperate with a psychological assessment. In December 2010, the mother, [] and [step]father, [JL] were involved in a domestic dispute resulting in [JL] being arrested and charged with Assault Causing Bodily Injury to a Family Member, and [Mother] moved into a Shelter in Galveston County with two of her children, [KP] (D.O.B. 8/22/03) and [KY]. The third child, [EL] (D.O.B. 11/2/07) was left in the care of a family member. [Mother] was discharged from the shelter after [KP] started a fire in a trash can at the shelter. On 01/14/11, [KY] was voluntarily placed with the paternal grandmother, [KM]. On 01/14/11, [KP] was hospitalized at Intra-Care Hospital as he was believed to be a threat to himself and others. [KP] has been diagnosis with Mood Disorder and ADHD. On 01/27/11, [EL] (age 3) was voluntary placed in the home with the maternal great aunt, [DS]. On 02/2/11, the mother, [] indicated KP will be discharged from Intra-Care Hospital and does not have a place for [KP] to reside. [Mother] indicated she was residing with relatives; however she is no longer able to reside with relatives, and she is currently living in a Motel. [Mother] indicated she was planning to move into a new
3 apartment on 2/1/11; however she was unable to secure the apartment. [Mother] previously self disclosed that she has been diagnosed with Bipolar Disorder and Depression. She is currently not on any medication for her diagnosis and is not under the direct care of a psychiatrist currently. ....
CPS History
09/27/05 Allegations of Physical Abuse to [KP] and [KY] by [Mother] and [JL]-Disposition Unable to Determine. 09/27/05 Allegations of Physical Neglect to [KY] by [Mother]. Disposition- Ruled Out. 02/18/09 Allegations of Neglectful Supervision to [KP] and [KY] by [Mother], [ML] (Maternal Grandfather), and, [RL](Maternal Great Uncle)-Disposition Ruled Out. 02/18/09 Allegations of Physical Abuse to [KP] and [KY] by [Mother]- Disposition Ruled Out. 02/18/09 Allegations of Physical Neglect to [KP] and [KY] by the mother, [].- Disposition Ruled Out. 12/10/10-Allegations of Neglectful Supervision to [KP] and [KY] by [Mother]-Disposition Ruled Out 12/10/10-Allegations of Physical Abuse to [KP] and [KY] by [Mother]-Disposition Ruled Out 12/10/10- Allegations of Sexual Abuse to [KY] and [KP] by [Mother] and Unknown l-Disposition Ruled Out. 12/10/10-Allegations of Sexual Abuse to [KY] by [GH] (maternal cousin). Disposition- Ruled Out. The whereabouts and identity of [KP]’s father is currently unknown. Removal from the home is in the best interests of the child [KP] because the mother indicated she is unable to care to the child, the mother does not have stable housing or employment and cannot meet the basic needs of the child, the mother has mental health concerns which are not being treated, and for all the additional reasons stated
4 above. The Texas Department of Family and Protective Services is requesting to be appointed Temporary Managing Conservator of [KP].
On March 31, 2011, the court held a status hearing, at which the Department
proposed a service plan. The proposed service plan listed the Department’s
concerns, “as of 3/3/11”:
[Mother] did not complete FBSS services and currently has no place to live and no means of caring for [KP]. There is considerable CPS history with this family. [Mother] currently does not have a home for [KP] to come home to. [Mother] was previously in a domestic violence relationship. Mother’s location is currently unknown and the step-father is refusing to accept responsibility for his actions. Neither parent has been cooperating with the agency. Mother is not willing or able to provide a safe or stable environment for [KP]. Mother did not show up for the hearing, so the record reflects that the
proposed service plan had not been shown to her or explained to her; thus, there
was no agreement as to services.1 A permanency hearing was date was set for July
11, 2011.
The March 29, 2012 judgment was also introduced as an exhibit in
underlying trial 2015 termination trial. In that prior 2012 order, the court found
that it was in the best interest of KP for DFPS to be designated as his Sole
Managing Conservator. The court found it in KP’s best interest for Mother to be
1 There were later service plans in place that the Mother and the Department agreed to, but Mother apparently did not complete them. 5 appointed possessory conservator, and that “the limited possession and access
provided by this order is required, and does not exceed the restrictions needed to
protect the child.” The order allowed Mother access to KP only in supervised
visits.
B. The September 22, 2015 CASA Status Report
KP’s guardian ad litem prepared a report dated September 22, 2015
recommending that the Department be granted Permanent Managing
Conservatorship of [KP] and that Mother’s rights be terminated. The report cited
the Department’s four requests, spanning from 2011 to 2014, for Mother to
complete a plan of service, which Mother never completed. The report noted that
Mother has not maintained regular contact with the Department, and has not
followed through on important visits for KP, leaving him to feel abandoned.
Specifically, the report states that Mother’s “lack of attentiveness and participation
has led to [KP] being emotionally and psychologically disturbed.” The report also
notes that KP’s therapist requested that parental visits be stopped after Mother and
her boyfriend tested positive for cocaine in drug tests on December 19, 2014, and
March 19, 2015.
The report further recommended that KP remain in his current therapeutic
foster home placement, where he has resided since August 17, 2015. His needs are
being met educationally, physically, and emotionally. KP suffers from depression,
6 ADHD, and Bipolar Disorder. He is in therapy. KP wants to be returned to his
Mother. Although the original goal was family reunification, then long-term
facility placement, KP’s guardian ad litem reported that KP’s therapist of three
years has explained that Mother’s “inconsistencies in contacts and visits have been
traumatic for him” and the therapist’s “paramount concern is for [KP] to have
stability and consistency.” The Guardian Ad Litem has been on this case since
2011, the year the Department was granted Temporary Managing Conservatorship.
In preparing the CASA report, the ad litem reviewed the following records: the
Department’s file, Drug Test results, Physiological and Psychiatric Evaluations,
School Records, and Therapy Notes.
C. Mother’s testimony
At the underlying trial, Mother testified that CPS first sought removal of her
son, KP, from her care several years ago. She acknowledged that she has tested
positive for drugs since the prior termination proceedings, but stated that the
positive drug test results were incorrect. When asked for the basis of that
conclusion, she stated that the allegedly false drug test results were related to her
HIV status, her type 2 diabetes, and her being in and out of the hospital for
“chronic pain and sickness.”
She conceded that she does not have a prescription for cocaine or marihuana,
nor was she given these substances at the hospital, although she had tested positive
7 for both substances in her system. She admitted to having done cocaine and
smoked marihuana before, and to testing positive for marihuana on March 15,
2015.
Mother also testified that, at the time of trial, she had worked for In-Home
Health Care for about nine months, and that she is ready to get KP back. He has
not lived with her since 2011; he has been in CPS’s custody. She has no idea who
KP’s father might be. Mother’s 13-year-old daughter, KY, has also been the
subject of a past case and has lived with Mother since 2009.2
She identified TR as her fiancé. She stated that he does not use drugs either.
She acknowledged that TR tested positive for cocaine and marihuana in March
2015. She opined that all of TR’s failed drug tests since the prior termination
proceedings were wrong. When asked, “So, he’s never used cocaine?,” she
responded with “I’m not going to say never, but he has not used drugs at this
current time.” She testified that, if KP was returned to her possession, she would
be living with TR as well.
Mother agreed that it is not good to do drugs such as cocaine and marihuana
around a child, but insisted that fact is irrelevant here, as she and TR do not do
drugs. She acknowledged that she tested positive for cocaine and marihuana drug
use during an earlier CPS case involving a different child, KY, but maintained that
2 It is not clear from this record where KY lived prior to 2010. The Department is actively trying to remove KY from Mother’s care. 8 those tests were wrong as well. In sum, she stated that any test indicating that she
has done drugs after 2009 is incorrect.
D. KP’s CPS caseworker
M. Youngblood, KP’s caseworker, testified that KP is currently in a very
caring foster home. Youngblood stated that the Department wanted to terminate
Mother’s parental rights because of her use of cocaine and not following through
on required services. Youngblood asked her to take parenting classes, substance-
abuse counseling, and individual counseling. She testified that Mother never
completed anything.
Youngblood was asked why Mother’s 13-year-old daughter, KY, was
permitted to remain in the home with her mom testing positive for cocaine. She
explained the challenges the Department has faced in seeking KY’s removal:
Well, she’s – there’s been a lot of uptakes on that, and there have been a lot of investigations trying to get K[Y]. They went to school. K[Y] will not talk. She would not give the correct address on where she lives. She said she lives in Fort Bend, but she told me when she came to my office she lives in a motel. The intake that was presently done about a month ago said she is in her car. So, it’s kind of hard for an investigator to follow through on getting K[Y].
Youngblood explained that, over the years, the Department has tried to do
much to reunite Mother with KP. She unfortunately continuously either refused to
submit to drug tests or tested positive for drug use in 2013 and 2015.
9 Youngblood testified that “the Agency’s position [is] that by engaging in
drug use, illegal drug use during the course of this case, that [Mother] engaged in
conduct which endangered the physical and emotional well-being of [KP],” which
she asserts are sufficient grounds for termination under section 161.001(b)(1)(E).
She further testified that the Department made reasonable efforts to return KP to
Mother, and that Mother did not make an effort to regularly visit or maintain
significant contact with KP. Youngblood opined that Mother has “demonstrated
an inability to provide [KP] with a safe and stable environment” and stated that
Mother did not comply with conditions she was told were necessary to obtain
return of KP.
Youngblood also opined that it is not in KP’s best interest to be returned to
his mother because there are concerns “that she’s taking drugs around the child and
trying to still supervise the child under the influence of drugs.” The agency has
concerns about her ability to parent, and also believe it is in KP’s best interest that
Mother’s parental rights be terminated so KP can eventually hopefully be adopted
by a family. One of the Department’s goals is for KP to achieve permanency. KP
has exhibited behavioral issues in his placements, has had issues with other
children at school, and he “responds poorly when he’s not in [a] structured
environment.”
10 Mother has not demonstrated to Youngblood that she is “capable at all of
providing a structured environment for KP.” Youngblood presumes that Mother
moves around a lot, because she has not once—through the entire case—
demonstrated that she has a residence. That fact, coupled with KY telling
investigators “about different places she lived including a car in Fort Bend and
other places” leads the Department to believe that she cannot provide KP a
residence, much less a safe and stable residence. Youngblood opined that
“Mother’s unstable home environment” was another reason that termination of
parental rights is in KP’s best interest because he has demonstrated that he
“requires a very stable, structured environment to thrive.” She testified that, at
this point, KP is very psychologically unstable, suffering emotionally from the
uncertainty in his life, and acts out violently in response to instability.
On cross-examination, Youngblood clarified that she had only been assigned
to the case for about one year, since December 2014. The only time she personally
called Mother to do a random drug test was in January or February 2015, and
Mother did not show up. Otherwise Youngblood was just focused on trying to
get Mother to perform her services, but Mother did complain to Youngblood that
she was not asking her to take random drug tests more often. Youngblood testified
that Mother never called her — it was almost always Youngblood who reached out
to communicate.
11 Youngblood was also cross-examined about documents reflecting different
drug test results. The following exhibits related to these tests were admitted into
evidence:
January 18, 2013 – Mother’s hair sample tested positive for Benzoylecgonine: 2208/pg/mg; and Cocaine 619 pg/mg March 8, 2013 – Mother’s hair sample tested positive for marihuana: 0.27 pg/mg March 21, 2013 – Mother’s urine sample tested negative; Mother’s hair sample tested positive for marihuana: >50.0; and marihuana metabolite 0.2 pg/mg May 14, 2013 – Mother’s hair sample and urine sample both tested negative August 27, 2013 – Mother’s urine sample tested negative; Mother’s hair sample tested positive for Benzoylecgonine: 256 pg/mg; and Cocaine: 645 pg/mg December 12, 2013 – Mother’s urine sample tested negative March 21, 2014 – Mother’s urine sample tested negative June 18, 2014 – Mother’s urine sample tested negative December 19, 2014 – Mother’s urine sample tested negative; Mother’s hair sample tested positive for Benzoylecgonine: 547 pg/mg; and Cocaine: 1806 pg/mg March 19, 2015 – Mother’s urine sample tested negative; Mother’s hair sample tested positive for Benzoylecgonine 319 pg/mg; and Cocaine: 1535 pg/mg March 19, 2015 drug testing results for Mother’s fiancé, TR, were also
entered into evidence, reflecting a negative urine test and a positive hair test for
Benzoylecgonine, Cocaine, and Marihuana.3
3 TR’s criminal record was also entered into evidence, reflecting convictions in 2000 for evading arrest, in 2001 for unauthorized use of a motor vehicle and 12 When asked why the Department was seeking now to terminate parental
rights, i.e., what were the “changes in circumstances” since the 2012 order
appointing mother as possessory conservator, Youngblood testified it was (1)
Mother’s testing positive for cocaine, and (2) her failure to contact the Department
or work on services. She acknowledged that Mother did sometimes visit KP
before a court order was sought prohibiting contact after one of Mother’s failed
drug tests.
Youngblood testified that the Department was waiting to seek a permanent
adoptive placement until Mother’s parental rights were terminated. The
Department filed a petition for termination in March of 2015, but were still hoping
to give Mother a chance. In September 2015, when Mother’s stopped cooperating
with or attending appointments with the therapist that the Department lined her up
with that the final decision was made to pursue a termination hearing.
Finally, Youngblood explained that parental termination would open up KP
for adoption broadcasting in the entire United States, not just Texas.
E. Guardian Ad Litem’s Testimony
An advocacy coordinator, Q. Smith, testified that Child Advocates has been
appointed as the guardian ad litem for KP, and that its position is that it is in KP’s
best interest to have parental rights terminated because:
burglary of a habitation with intent to commit theft, and in 2009 for felony possession of a weapon, 13 Due to the positive drug tests that the mother’s had throughout the case, failed to complete family plan of service, unstable home environment, failure to maintain contact with the caseworker, and also reflect missed visits with [KP]. [KP] is emotionally fragile and the ups and downs that he's gone through with this case.
THE TRIAL COURT’S JUDGMENT When the Department attempted to offer Mother’s latest service plan at the
pre-trial hearing for use in demonstrating that Mother’s parental rights should be
terminated under Texas Family Code 161.001(b)(1)(o) (permitting involuntary
termination of parental rights if the court finds, by clear and convincing evidence,
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”), it realized, in response to an objection by Mother’s counsel,
that there was actually no court ordered service plan in effect, and conceded that it
could not seek termination on that ground:
[MOTHER’S COUNSEL]: And, Judge, again, that’s an order. It -- that was issued in the prior case. There was a final order issued. So that clearly isn’t relevant to any issue in this case. And if the purpose of it is to try to show (o) then -- then, clearly it’s not admissible because the Court rejected the termination in the 2012.
....
14 Just to show for (o), you need a current order that tells a parent what they have to do in order to be reunified with their child; and you can’t use old orders that were already subsumed in a final decree.
THE COURT: What are your intentions?
[DFPS’S COUNSEL]: Judge, with respect to the (o) grounds, I’m actually going to need it, but the decree normally provides that any prior temporary orders shall continue in effect and the argument is that that includes family service plan. We're currently looking at the decree. I will have to withdraw the objection because I do not see the specific language in this old decree that says the prior temporary orders are to continue in effect. So . . . .
THE COURT: So, you’re withdrawing 7 [the family service plan]? [DFPS’S COUNSEL]: Yes. THE COURT: All right.
[DFPS’S COUNSEL]: I’m not withdrawing it, Judge. I'm just saying I’m not going to have grounds to terminate her on the family service plan, which I'm okay with.
THE COURT: Okay. I’m going to go ahead and sustain [Mother’s counsel]’s objection to 7. After the close of the evidence, the trial court entered judgment continuing
DFPS as KP’s Managing Conservator, and terminating Mother’s parental rights
under two different sections of the Texas Family Code:
Texas Family Code § 161.004:
Termination After Prior Termination Denied
The Court finds that some of the evidence considered in this trial related to events occurring before a prior order denying termination, and that such evidence was admissible pursuant to § 161.004, Texas Family Code. 15 The Court finds by clear and convincing evidence that the petition for termination in this case was filed after the date that an order denying termination of the parent-child relationship of [Mother] was rendered, that the circumstances of the children, parent, sole managing conservator, possessory conservator, or other party affected by the prior order have materially and substantially changed since the prior order was rendered, and that, before the prior order was rendered, said parent committed an act listed under § 161.001, Texas Family Code.
Texas Family Code § 161.001(e):
Termination of Respondent Mother[]’s Parental Rights
The Court finds by clear and convincing evidence that termination of the parent-child relationship between [Mother] and the child [KP], the subject of this suit is in the child’s best interest. Further, the Court finds by clear and convincing evidence that [Mother] has:
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, pursuant to § 161.001(1)(E), Texas Family Code.
ISSUES ON APPEAL
Mother raises the following three issues on appeal:
1. “Was the evidence legally and factually sufficient to support the termination of appellant’s parental rights under §161.001(1)(E)?”
2. “Was the evidence legally and factually sufficient to support the termination finding on best interest grounds?”
3. “Was the evidence legally and factually sufficient to support the removal of appellant as the child’s possessory conservator?”
16 STANDARD OF REVIEW FOR TERMINATION OF PARENTAL RIGHTS
Because parental-rights termination “is complete, final, irrevocable, and
divests for all time that natural right[,] . . . the evidence in support of termination
must be clear and convincing before a court may involuntarily terminate a parent’s
rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Santosky v.
Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1980)). Clear and
convincing evidence “means the measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West
2014). This heightened burden of proof results in a heightened standard of review.
When determining legal sufficiency, we review “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.” In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). To give appropriate deference to the factfinder’s
conclusions, we must assume that the factfinder resolved disputed facts in favor of
its finding if a reasonable factfinder could have done so. Id. We disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id. This does not mean that we must disregard all evidence that does not
support the finding. Id. Disregarding undisputed facts that do not support the
finding could skew the analysis of whether there is clear and convincing evidence.
17 Id. Therefore, in conducting a legal-sufficiency review in a parental-rights-
termination case, we must consider all of the evidence, not only that which favors
the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).
In determining factual sufficiency under the clear-and-convincing burden,
we must consider whether the evidence is sufficient to produce a firm belief or
conviction in the mind of the factfinder as to the truth of the allegation sought to be
established. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We consider whether
disputed evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. “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.” Id.
The natural rights that exist between parents and their children are of
constitutional dimension. Holick, 685 S.W.2d at 20. Therefore, termination
proceedings should be strictly scrutinized, and the involuntary termination statutes
should be strictly construed in favor of the parent. Id. However, “[j]ust as it is
imperative for courts to recognize the constitutional underpinnings of the parent-
child relationship, it is also essential that emotional and physical interests of the
child not be sacrificed merely to preserve that right.” C.H., 89 S.W.3d at 26. For
18 parental rights to be involuntarily terminated, it must be found by clear and
convincing evidence that the parent engaged in conduct set out in subsection
161.001(1) and that termination would be in the child’s best interest pursuant to
subsection 161.001(2). TEX. FAM. CODE ANN. § 161.001 (West 2014). Both
elements must be established, and termination may not be based solely on the
factfinder’s determination of best interest of the child. See Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re L.M., 104 S.W.3d 642, 646
(Tex. App.—Houston [1st Dist.] 2003, no pet.).
CAN TERMINATION BE AFFIRMED UNDER SECTION 161.004?
As a preliminary matter, we must determine if the trial court’s reliance on
section 161.004 of the Texas Family Code can support its judgment terminating
parental rights, given that this section was not pleaded by the Department, and the
Department itself concedes that it was not seeking termination under this section at
trial.
Section 161.004, which allows the trial court to terminate parental rights
after a prior denial of a termination petition if (1) “the circumstances . . . have
materially or substantially changed since the date the [prior] order was rendered,”
(2) the parent committed a violation under section 161.001 before the prior order,
and (3) termination is in the child’s best interest:
19 § 161.004. Termination of Parental Rights After Denial of Prior Petition to Terminate (a) The court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent- child relationship if: (1) the petition under this section is filed after the date the order denying termination was rendered; (2) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered; (3) the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered; and (4) termination is in the best interest of the child. (b) At a hearing under this section, the court may consider evidence presented at a previous hearing in a suit for termination of the parent- child relationship of the parent with respect to the same child.
TEX. FAM. CODE ANN. § 161.004 (West 2014).
The Department urges us to affirm the trial court’s judgment under section
161.004, and points out that “it is unknown from the decree what act under Section
161.001 the court found the mother committed before the prior decree for its
finding . . . under Section 161.004.” But, it argues, “the evidence conclusively
establishes that the mother committed the act of Subsection O before the entry of
the prior decree. Consequently, with the other findings under Section 161.004, the
judgment for parental termination may be affirmed with a finding that termination
is in the child’s best interest, without considering the court’s general finding for
20 parental termination under Section 161.001 of the Texas Family Code.” It further
asserts that “even though the Department did not ask for judgment for parental
termination under Section 161.004,” the trial court was authorized—under section
161.206(a)—to terminate under that section because section 161.206(a)
affirmatively imposes upon trial judgment the independent duty to decide whether
a parental termination judgment must be ordered by stating “(a) If the court finds
by clear and convincing evidence grounds for termination of the parent-child
relationship, it shall render an order terminating the parent-child relationship.”
We disagree with the Department that the trial court’s termination of
Mother’s parental rights can be affirmed under section 161.004 of the Texas
Family Court on the theory that the trial court “could have” based its termination
on Mother’s pre-2012 failure to follow the pre-2012 service plan (i.e., under
section 161.004(b)(1)(o) permitting termination for failure to complete service
plan).
Termination can be achieved after a prior order denying termination through
either section 161.004 or section 161.001. In re K.G., 350 S.W.3d 338, 350–52
(Tex. App.—Fort Worth 2011, pet. denied). When the Department does not plead
section 161.004 as grounds for termination, it is error to admit evidence from
before a prior decree denying termination. Id.
21 Here, (1) the Department did not plead section 161.004 as a grounds for
termination, (2) the Department specifically represented to the court that it was not
seeking termination for failure to follow a family service plan under subsection (o),
(3) Mother’s counsel objected that the service plan in place before the 2012
judgment should not be admitted into evidence because it terminated with that
judgment and was thus irrelevant to the current grounds for termination before the
court, and (4) the trial court sustained the objection to admission of the pre-2012
service plan on relevance grounds and it was not entered into evidence.
The Department states in its brief that “the evidence conclusively establishes
that the mother committed the act of Subsection O of the Family Code before the
entry of the prior decree.” But the service plan the Department purports to rely
upon was excluded from evidence. And, although the Department insists that the
“evidence conclusively establishes that the mother” failed to comply with her
service plan pre-2012, nothing in the pleadings or trial would have put Mother on
notice to put on evidence about whether she complied with the pre-2012 service
plan. This issue was not tried by consent, as Mother’s counsel successfully
excluded the service plan on relevance grounds and the Department affirmatively
represented to the trial court and Mother that it was not seeking termination under
the very service plan upon which it now seeks to rely. We thus cannot affirm the
trial court’s termination of Mother’s parental rights for failure to follow a service
22 plan pre-2012, especially when the court refused to admit that service plan because
it was not relevant to a pleaded claim.
SUFFICIENCY OF THE EVIDENCE TO SUPPORT TERMINATION OF PARENTAL RIGHTS UNDER § 161.001(b)(1)(E) Mother first challenges the sufficiency of the evidence supporting
termination of her parental rights under § 161.001(b)(1)(E).
A. Applicable Law
The sole ground for termination of Mother’s parental rights was section
161.001(b)(1)(e):
§ 161.001. Involuntary Termination of Parent-Child Relationship .... (b) The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence: (1) that the parent has: .... (E) 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; .... TEX. FAM. CODE ANN. § 161(b)(1)(E) (West. 2014).
Endangerment means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; J.T.G., 121 S.W.3d at 125; see also In re M.C., 917 S.W.2d 268,
269 (Tex. 1996). Under subsection (E), the relevant inquiry is whether evidence
23 exists that the endangerment of the child’s physical well-being was the direct result
of the parent’s conduct, including acts, omissions, or failures to act. See J.T.G., 121
S.W.3d at 125; see also TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Additionally,
termination under subsection (E) must be based on more than a single act or
omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. J.T.G., 121 S.W.3d at 125; see TEX. FAM. CODE ANN. §
161.001(b)(1)(E). It is not necessary, however, that the parent’s conduct be
directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at
533; J.T.G., 121 S.W.3d at 125. The specific danger to the child’s well-being may
be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In
re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
B. Analysis
Mother concedes that “drug abuse and its effect on the ability to parent can
be part of an endangering course of conduct.” (citing J.O.A., 283 S.W.3d at 345).
She contends, however, that “in this case, the weight to be given to the positive
drug test results and, therefore, how mother’s drug use many have endangered
[KP] remains mainly speculative.” She points out that “DFPS failed to call any
expert to interpret the results” of her positive drug tests, and that “Youngblood [the
caseworker] agreed she was not competent to interpret them.” Without such
evidence, Mother argues, “the fact finder could not determine the amount of
24 frequency of usage; whether the positive reading could have been caused by mere
exposure or for some other reason.” In sum, Mother contends:
[N]o rational trier of fact could have formed a firm conviction that mother’s conduct endangered [KP]. The record contains insufficient facts to determine how her four positive drug tests over a three-year period and her failure to complete individual counseling placed [KP] in danger. This is particularly true where the child has not resided with the mother since 2009.
While it is true that it has been a long time since KP has resided with
Mother, the cases interpreting section 161.001(1)(b)(E) demonstrate that evidence
of a parent’s course of conduct, even when the parent is not in possession of their
child, can support a finding of endangerment. There is evidence here that Mother
has had trouble maintaining a stable living environment for several years. In fact,
a case worker testified that Mother had never been able to show her an actual
residence. Mother testified that, if she was reunited with KP, they would be living
with TR. There was evidence of a course of conduct of positive drug tests by both
Mother and TR between the time of the 2012 order and the 2015 termination
hearing.
The supreme court has held that “endangering conduct may include the
parent’s actions before the child’s birth, while the parent had custody of older
children, including evidence of drug usage.” J.O.A., 283 S.W.3d 336 at 345.
Under this reasoning, Mother’s repeated use of drugs while she retains custody of
KY is evidence of endangerment as it relates to KP, even though KP was in the
25 Department’s custody.4 See id.; see also In re S.R., 452 S.W.3d 351, 360 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied) (“Under subsection E . . . courts
may consider conduct both before and after the Department removed the child
from the home.” (emphasis added); see Avery v. State, 963 S.W.2d 550, 553 (Tex.
App.—Houston [1st Dist.] 1997, no writ) (considering persistent endangering
conduct up until time of trial).
Moreover, we have held that “[c]onduct that subjects a child to life of
uncertainty and instability endangers the child’s physical and emotional well-
being.” Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.]
2010, pet. denied). Also, although “[m]ental illness alone is not grounds for
terminating the parent-child relationship, . . . untreated mental illness can expose a
child to endangerment . . . and is a factor the court may consider.” In re S.R., 452
S.W.3d at 363.
Mother testified that she has had a job for several months, but did not testify
to having a residence. The record reflects that Mother has a diagnosis of bipolar
disorder and depression, but there is no indication that she is being treated, and she
refused to continue with the therapist that the Department arranged for her to see.
4 Although Mother claimed that the results of any positive drug test relating to her or her fiancé TR were false, the trial could have believed that evidence was not credible. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). 26 Given the evidence of (1) Mother’s course of conduct of drug use while still
maintaining custody of KY, (2) Mother’s long-term lack of residence or stable
living arrangements, (3) Mother’s sporadic and inconsistent visitation of KP, (4)
Mother’s untreated mental illnesses, and (3) Mother’s testimony that she and KP
would live with TR, who also failed drug tests shortly before trial, the trial court’s
endangerment finding under section 161.001(1)(b)(E) is supported by legally and
factually sufficiency evidence.
We overrule Mother’s first issue.
SUFFICIENCY OF THE EVIDENCE THAT TERMINATION IS IN KP’S BEST INTEREST In her second issue, Mother challenges the legal and factual sufficiency of
the evidence that termination of her parental rights is in KP’s best interest.
There is a strong presumption that the best interest of a child is served by
preserving the parent-child relationship. Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976). In assessing whether termination is in a child’s best interest, the
courts are guided by the non-exclusive list of factors set forth in Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976). These factors include (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
parental abilities of the individuals seeking custody, (5) the programs available to
27 assist these individuals to promote the best interest of the child, (6) the plans for
the child by these individuals or by the agency seeking custody, (7) the stability of
the home or proposed placement, (8) the acts or omissions of the parent which may
indicate that the existing parent-child relationship is not proper, and (9) any excuse
for the acts or omissions of the parent. Id. The Holley factors are not exhaustive.
In re C.T.E., 95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied). “Moreover, the State need not prove all of the factors as a condition
precedent to parental termination, ‘particularly if the evidence were undisputed that
the parental relationship endangered the safety of the child.’” Id. (quoting In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002)).
The Texas Family Code also provides factors that can be used to assess
whether a child’s parent is willing to provide a safe, stable environment:
§ 263.307. Factors in Determining Best Interest of Child
(a) In considering the factors established by this section, the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest. (b) The following factors should be considered by the court and the department in determining whether the child’s parents are willing and able to provide the child with a safe environment: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department ;
28 (5) whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child's home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development; (C) guidance and supervision consistent with the child's safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. .... TEX. FAM. CODE ANN. § 263.307 (West Supp. 2015).
29 B. Analysis
Mother argues that the Holley factors weigh against termination of her
parental rights being in KP’s best interest. She notes the statement in the CASA’s
report that KP “has verbalized a desire to return home with his mother and
sibling.” She points out that the Department does not have an adoptive placement
for KP identified, that KP’s behavioral problems increased when Mother’s visits
were stopped, and that she is employed now and that KP could now come live with
her, KY, and TR. She acknowledges her repeated failed drug tests, but she argues
that evidence should be outweighed by her lack of a criminal record, stable
employment, and the fact that KY lives with her and has never been removed.
Mother also concedes that given KP’s “substantial emotional disorders” and her
“own illnesses, it is unlikely she would be able to provide him with adequate care
by herself.” But she nonetheless argues that because there is no adoptive
placement in place for KP, and because KP’s behaviors deteriorated when Mother
was ordered to stop visiting him, the Department has not established that
termination of her parental rights is in his best interest.
The Department disagrees, arguing that the Holley factors actually weigh in
favor of termination, and it points to the statutory presumption that “the prompt
and permanent placement of the child in a safe environment is . . . in the child’s
best interest.” TEX. FAM. CODE ANN. § 263.307. The Department emphasizes that
30 Mother has engaged in behaviors that endanger KP’s emotional stability over many
years and has failed to take corrective actions to protect and be reunited with her
child, even with long-term active assistance from the Department.
We agree with the Department that there is legally and factually sufficient
evidence that termination of Mother’s parental rights is in KP’s best interest. While
there is evidence favoring Mother when applying the first factor, i.e., desires of the
child, the following seven out of eight of the remaining factors weigh in favor of
termination being in KP’s best interest:
- child’s emotional and physical needs now and in the future (KP has been in the custody of the Department for seven years, without Mother ever demonstrating that she can meet his physical or emotional needs);
- child’s emotional and physical danger now and in the future (evidence demonstrated that KP needs stability and routine and is violently upset by uncertainty; Mother has no established residency and has shown a pattern of being under the influence of drugs while KP’s sibling remained in her care, and she has been inconsistent in her contact with KP, which greatly upsets him);
- the parental abilities of the individuals seeking custody (Mother has demonstrated an inability to remain sober, remain emotionally or mentally healthy, and she is living with a boyfriend that also has a pattern of drug use and a criminal record; in contrast, KP’s emotional and physical needs are being meet in his current therapeutic foster home); - agency’s or individual’s plans (the Department plans to continue KP in his therapeutic foster home, and then seek a permanent adoptive placement; mother has no plan reflected in the record to obtain a stable residence or environment);
31 - stability of home or proposed placement (Mother has offered no evidence of a stable home over the last seven years, only testifying that she has a job; the department has KP placed in a loving, stable home where his physical, emotional, and educational needs are being met); - acts or omissions by parent indicating maintaining parental relationship is not proper (Mother’s failure to complete multiple service plans, rejection of the Department’s attempts to help her with her own mental illness, continued drug use, and failure to maintain consistent contact with KP or work towards obtaining a stable living arrangement qualify as acts and omissions weighing in favor of termination).5
Section 263.307 of the Texas Family Code admonishes that “prompt and
permanent placement of the child in a safe environment is presumed to be in the
child’s best interest.” KP has languished in the foster care system for seven years,
despite the Department’s multiple attempts at offering services for Mother to work
towards reunification. KP’s caseworker and guardian ad litem opined that
termination of Mother’s parental rights was in KP’s best interest because Mother
had done so little to regain possession of KP over a period of seven years, had
demonstrated an inability to maintain a stable home environment, and had been so
5 To the extent that the last Holley factor, i.e., excuses for the acts or omissions of the parent, applies, it falls between neutral and weighing in favor of termination being in KP’s best interest. Mother suffers from mental illness. She has, however, offered little in the way of plausible excuses for multiple failed drug tests, and she offered nothing in her testimony to explain why she had been so inconsistent in her visits with KP, why she has never secured stable suitable housing, or why she refused to complete numerous service plans. The excuse she offered for not availing herself of the assistance of the therapist the Department enlisted to help her in parenting and coping with her mental illness was simply that she decided she did not like the therapist. 32 sporadic in her visitation as to cause him emotional distress. Depree v. Tex. Dep’t
of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App.—Dallas 1995,
no writ) (“The need for permanence is the paramount consideration for the child’s
present and future physical and emotional needs.”). Further, the goal of a
permanent placement through adoption cannot be achieved until Mother’s parental
rights are terminated. In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston
[14th Dist.] 2012, no. pet.) (“The goal of establishing a stable, permanent home for
a child is a compelling government interest.”). KP’s caseworker testified that she
could broadcast KP’s information to a larger number of potential adoptive parents
if Mother’s rights were terminated.
For these reasons, we hold that there is legally and factually sufficient
evidence in support of the trial court’s finding that termination of Mother’s
parental rights is in KP’s best interest.
We overrule Mother’s second issue.
SUFFICIENCY OF THE EVIDENCE TO SUPPORT REMOVAL OF MOTHER AS POSSESSORY CONSERVATOR OF KP In her third issue, Mother argues that the evidence was insufficient to
support her removal as KP’s possessory conservator. Specifically, she contends
that the Department did not demonstrate that the “circumstances of the child, a
conservator, or other party affected by the order have materially and substantially
changed since the date of the rendition of the early order.” TEX. FAM. CODE ANN. §
33 156.101 (West 2014) (setting forth “Grounds for Modification of Order
Establishing Conservatorship or Possession and Access).”
As the Department points out, however, the Texas Family Code expressly
states that “an order terminating the parent-child relationship divests the parent and
the child of all legal rights and duties with respect to each other, except that the
child retains the right to inherit from and through the parent unless the court
otherwise provides.” TEX. FAM. CODE ANN. § 161.206 (West 2014); In re K.A.S.,
399 S.W.3d 259, 263 (Tex. App.—San Antonio 2012, no pet.) (“In a termination
case, the State seeks not just to limit parental rights but to end them permanently—
to divest the parent and child of all legal rights, privileges, duties, and powers
normally existing between them, except for the child’s right to inherit.”).
In any event, the trial court’s finding of “endangerment” in support of
termination of Mother’s parental rights would serve as “materially and
substantially changed” circumstances. TEX. FAM. CODE ANN. § 156.101.
We overrule Mother’s third issue.
34 CONCLUSION
We affirm the trial court’s termination order.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.