Opinion issued December 14, 2017
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00545-CV ——————————— IN THE INTEREST OF L.N.W., A CHILD
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2016-05060J
MEMORANDUM OPINION
K.S. appeals from the trial court’s judgment terminating her parental rights to
her daughter, L.N.W. In one issue, K.S. contends that the evidence is factually
insufficient to support a finding that termination of her parental rights is in the child’s
best interest. We affirm. Background
On August 8, 2016, the Department of Family and Protective Services (“the
Department”) received a referral alleging neglectful supervision of L.N.W., a two-
month old infant, by her mother, K.S., and her father, A.W.1 The referral alleged
that K.S. and A.W. have bipolar disorder and a history of marijuana use. The referral
also alleged that A.W. does not take his bipolar medication and has been violent
toward K.S.
On August 15, 2016, the Department received a second referral alleging
neglectful supervision of L.N.W. The referral stated that L.N.W.’s paternal
great-grandmother, Pamela Smith, had been taking care of L.N.W. since she was
born; A.W. and K.S. saw L.N.W. on August 12, 2016, despite the fact that A.W. was
not supposed to be around the infant because of his drug use and mental health
issues; and K.S was going to be hospitalized for mental health treatment.
On September 15, 2016, the Department filed its original petition for child
protection, conservatorship, and termination of parental rights, accompanied by the
affidavit of Cassandra Warren, a Department caseworker. In support of the
Department’s request that it be named temporary managing conservator of L.N.W.,
Warren stated that K.S. and A.W. suffered from bipolar disorder and had stopped
taking their medication; K.S. and A.W. had a history of marijuana use and the
1 A.W. is not a party to this appeal. 2 Department was concerned that K.S. was using marijuana around L.N.W; A.W. had
been violent toward K.S.; K.S. had a pending criminal case for domestic violence
(family assault) for assaulting her sister with whom she lived in violation of court
orders; and K.S. and A.W. had their parental rights to K.W., their one-year old
daughter, terminated in December 2015 on the grounds that they had engaged in
conduct endangering to the child and had failed to comply with the provisions of a
court order establishing the tasks necessary for reunification.
In her affidavit, Warren attested as follows:
At the beginning of her investigation, K.S. initially refused to speak with her
and Warren called the police for assistance. Before the police arrived, Nicole
Smith, K.S.’s mother, and Sandra Manley, K.S.’s maternal grandmother,
arrived at the house and K.S. agreed to speak with Warren. K.S., who lived
with her mother and sister, Sandra, told Warren that there was currently no
domestic abuse in the home but that A.W. had previously abused her by hitting
her when he became upset, and that much of the abuse took place when she
was pregnant with K.W., L.N.W.’s older sibling. K.S. told Warren that she
was no longer in a relationship with A.W. but that they continued to
communicate every other day.
K.S. told Warren that she was diagnosed with depression but denied being
bipolar. She told Warren that she has not been on medication for two years
3 because she “can handle [her] depression,” and her psychiatrist said that she
no longer needed to take it. K.S. told Warren that she sees Dr. Mark Lewis, a
therapist at King Haven Southwest, every two weeks. She denied using drugs
and the results of her urinalysis test conducted the next day were negative.
Warren noted that K.S. had everything necessary to care for L.N.W. in the
home, including a bassinet, diapers, and formula, and that L.N.W. showed no
signs of physical abuse or neglect. Warren spoke with Nicole who denied that
K.S. had any mental health issues. Nicole stated that K.S. had been a victim
of A.W.’s domestic violence in the past which was one of the reasons that
K.S. moved into Nicole’s home. Warren also spoke with K.S.’s sister, Sandra,
a high school senior, who said that K.S. did not have any mental health issues
and that she is an excellent mother who provides all the care for L.N.W.
On August 15, 2016, Warren contacted the medical records department of
King Haven Southwest and learned that K.S. was enrolled only in therapy,
had not seen a psychiatrist, and had not received services since May 2013.
On August 16, 2016, K.S. called Warren and told her that she was checking
herself into West Oaks Hospital and that L.N.W. was with a family member
but would not disclose the child’s location. Warren spoke with Pamela
Kerr-Smith, A.W.’s grandmother, who told Warren that she has had L.N.W.
in her care every weekend since she was born and that she was currently taking
4 care of L.N.W. Kerr-Smith told her that K.S. asked her to take care of L.N.W.
until she could get herself together and get back on her medication.
Kerr-Smith told Warren that K.S. and A.W. both have mental concerns that
need to be addressed.
On August 17, 2016, Nicole contacted Warren and told her that K.S. is not
taking her medication and would not leave A.W. alone. Nicole told Warren
that K.S. was diagnosed with Attention Deficit Hyperactivity Disorder and
that she recently left Nicole’s house and said she wished Nicole was dead.
On August 19, 2016, Warren spoke with K.S. in order to schedule a family
team meeting. Three days later, Warren learned that K.S. had been arrested
and charged with aggravated assault of a family member. Nicole informed
Warren that K.S. had attempted to cut Sandra with a knife. Nicole expressed
concern that K.S would continue to refuse to take her medication upon her
release from jail, and Nicole wanted to speak to a judge “to ensure that they
put something in place so [K.S.] can stay on her medication.” On September
9, 2016, K.S. received deferred adjudication and three years’ community
supervision for assaulting Sandra. Kerr-Smith continued to care for L.N.W.
until K.S. was released from jail.
On September 11, 2016, Kerr-Smith called Warren and told her that K.S. came
to pick up L.N.W. Kerr-Smith also reported that L.N.W. received a burn to
5 her leg one week earlier, and that when K.S. saw the burn on her leg she took
L.N.W. to the doctor.
On September 14, 2016, L.N.W.’s family participated in a family team
meeting. At the meeting, Nicole admitted that she had not been forthcoming
about K.S.’s mental health or the domestic violence involving her daughter.
K.S. disclosed that she was diagnosed with bipolar disorder as well as
depression. L.N.W. was at the meeting and had a “burn the size of an apple .
. . with red coloring on her right lower extremity.”
Warren concluded that K.S. (1) was diagnosed with bipolar disorder and had
stopped taking her medication without doctor approval; (2) was charged with
assaulting her sister with a knife; (3) was still residing with Sandra in violation
of the terms of her community supervision; (4) had her parental rights to K.W.
terminated approximately six months before L.N.W. was born due to her
mental instability and failure to complete services with the Department.
Warren stated that K.S. was unable to provide a safe and stable environment
for L.N.W. at this time and that she had no other viable relatives with whom
to place L.N.W.
On September 15, 2016, the trial court signed an order for protection of a child
in an emergency in which it found a continuing danger to L.N.W. which warranted
placing the child in the Department’s temporary managing conservatorship. On
6 September 29, 2016, following a full adversary hearing, the trial court signed an
order stating that there was sufficient evidence of a danger to L.N.W.’s physical
health and safety, and that the need to protect the child warranted her immediate
removal from her parents’ care. The court named the Department as L.N.W.’s
temporary managing conservator.
On October 3, 2016, K.S. participated in a family evaluation at the Children’s
Crisis Care Center (“4 Cs”). K.S. denied the substance of the Department’s
allegations. In particular, she denied any substance use and stated that she has
always tried to address her mental health needs, that she complied with and
completed all of the Department’s services during her previous case, and that her
parental rights were wrongfully terminated. She acknowledged that her continued
relationship with A.W. was a concern but said that she ended the relationship with
him. She reported some history of domestic violence but she attributed A.W.’s
unfaithfulness as the cause of their relationship ending, and she did not consider the
domestic violence to be a traumatic event.
The 4 Cs report noted a concern with “[K.S.]’s extremely low parenting
scores, which suggests that she is not fully able to conceptualize and [meet] the basic
needs of her daughter.” The report also noted that K.S. appeared “to have possible
low cognitive functioning, insufficient coping skills, and limited awareness of the
severity of the presenting issues in her life, and that her decision-making has been a
7 causal factor for the removal of her children.” It was also noted that K.S. participated
in a family assessment in March 2015 in her previous case, and that “it appears that
similar issues are presenting and do not appear to have [been] addressed as
recommended from the previous assessment.” The report concluded that “[K.S.]’s
cognitive functioning in the areas of understanding risks of her domestic violence
relationship, appropriate skills for caring for a child with little support, and the
importance of stability in her life are barriers to her being able to provide a young
child with the safety, stability and protection needed.” The report recommended that
K.S. (1) participate in a psychological evaluation to determine her current level of
cognitive and mental health functioning and to make recommendations for mental
health treatment; (2) continue psychiatric services to monitor and maintain her
mental health needs and treatment; (3) attend individual counseling; (4) participate
in domestic violence treatment services; and (5) attend parenting classes to increase
her knowledge and ability to understand the needs of a child in her care.
On November 8, 2016, the trial court held a status hearing. In a separate order,
the trial court granted the Department’s request for a finding of “aggravated
circumstances,” thereby waiving the requirement that the Department provide K.S.
with a family service plan or that it make reasonable efforts to return L.N.W. to
8 K.S.’s care.2 Nonetheless, the Department prepared a family service plan for K.S.
which set as goals that K.S. (1) learn and use parenting practices that meet the
emotional and developmental needs of L.N.W.; (2) learn to exercise self-control to
provide L.N.W. with a sense of stability; and (3) demonstrate an ability to provide
basic necessities such as food, clothing, shelter, medical care, and supervision for
the child. The service plan also recommended several services to achieve these
goals.
The State filed a motion to adjudicate guilt in K.S.’s aggravated assault case
which the trial court granted on January 19, 2017. The motion stated that K.S.
violated the terms and conditions of her community supervision by: (1) possessing
drug paraphernalia; (2) possessing duplicate identification cards; (3) failing to
participate in a substance abuse program; (4) failing to participate in a “Thinking for
a Change” program; and (5) having contact with her sister, Sandra, in violation of
the court’s protective order. K.S’s criminal case was later dismissed upon the State’s
motion.
2 Family Code section 262.2015 lists numerous “aggravating circumstances” which permit a trial court to waive the requirements that the Department create a family service plan and that it make reasonable efforts to return the child. See TEX. FAM. CODE ANN. § 262.2015 (West Supp. 2017). As relevant here, one of those circumstances is when a parent has had her parent-child relationship terminated with respect to another child under section 161.001(b)(1)(E). See id. 9 On May 10, 2017, the Department filed a permanency report with the court.
In its report, the Department noted that L.N.W. had been living in a foster home
since September 14, 2016, the date on which she was removed from K.S.’s care.
The report described L.N.W. as “a happy 7 month [old] female who is placed in an
adoptive home where her sibling has already been adopted. L.N.W. is
developmentally on target and bonded with the current caregiver.” The report further
noted that “[t]he goal of unrelated adoption was set at the time the case was
transferred to conservatorship. There are no suitable relatives that have been
identified for placement of [L.N.W.]. [L.N.W.] is in a stable adoptive placement
w[h]ere she is able to be with her sister who has already been adopted by the family.
The agency will continue to search for suitable relatives, but at this time remaining
with her sibling in a permanent placement is in [L.N.W.]’s best interest.”
On May 18, 2017, L.N.W.’s guardian ad litem, a Child Advocates, Inc.
volunteer, filed a report with the court stating that termination of both parents’ rights
was in L.N.W.’s best interest based on the following grounds: (1) both K.W. and
L.N.W. were brought into the Department’s care shortly after birth and within one
year of each other; (2) parental rights to K.W. were terminated; (3) neither parent
has shown any significant lifestyle changes; (4) both parents should be taking
medication for their bipolar disorder but, to the ad litem’s knowledge, both were
non-compliant; (5) both parents have a history of domestic violence; and (7) K.S.
10 has been incarcerated during the case for violent behavior. The ad litem also
recommended that L.N.W. remain in her current foster placement. In support of the
recommendation, the ad litem stated that “[L.N.W.] has been in the current foster
home placement since September 14, 2016. [L.N.W.] is placed with her biological
sibling who was adopted by the current caregivers. The current caregivers are also
interested in adopti[ng L.N.W.] as well. [L.N.W.] is thriving in the home and is very
bonded to the family. All of [L.N.W.]’s needs are being met by the current
placement.”
The bench trial began on May 23, 2017. K.S. was present at trial.3 Prior to
calling its first witness, the Department introduced numerous exhibits, which the
trial court admitted, including the following: (1) Warren’s affidavit in support of
removal; (2) the September 15, 2016 emergency order; (3) the September 29, 2016
temporary order following adversary hearing; (4) the November 8, 2016 status
hearing order and family service plans; (5) the November 2016 order finding
“aggravated circumstances”; (6) the final decree of termination in K.W.’s case; (7)
4 Cs records; (8) West Oaks Psychiatric Hospital records; (8) K.S.’s criminal history
records; (9) Child Advocate, Inc.’s report; and (10) the May 10, 2017 permanency
report.
3 A.W. was not present at trial. 11 Ashley Chamblee, the Department caseworker assigned to L.N.W.’s case,
testified that L.N.W. was ten months old and was living in the adoptive foster home
where she was placed when the Department initially removed her from her parents’
care.
Chamblee detailed the facts leading to L.N.W.’s removal. She testified that
K.S. was incarcerated for assaulting her sister, Sandra. While K.S. was in jail,
L.N.W. lived with Kerr-Smith. During that time, L.N.W. sustained a burn but did
not receive any medical care until K.S. was released from jail and took her to a
doctor. Chamblee testified that K.S.’s parental rights to K.W., L.N.W.’s sister, were
terminated on the basis that she had endangered the child.
Chamblee testified that the Department created a family service plan for K.S.
but stated that she did not receive any proof that K.S. had participated in any of the
plan’s services. Chamblee stated that L.N.W. was living with the same foster family
who had adopted K.W. following the termination of K.S.’s and A.W.’s parental
rights. Chamblee testified that termination of K.S.’s parental rights to L.N.W. was
in the child’s best interest because of K.S.’s prior history with the Department, her
mental health issues, and the fact that L.N.W. was living in a stable home with her
sibling. Chamblee confirmed that K.S.’s medical records from West Oaks
Psychiatric Hospital in 2012, which were admitted at trial, reflect that K.S. expressed
a desire to kill herself and that she tried to choke herself.
12 Chamblee testified that K.S. visited L.N.W. for one hour every other week
during the pendency of the case. When asked if L.N.W. appeared to be bonded with
K.S., Chamblee responded, “We actually have to have the foster parent in the visits
with us, otherwise the child screams and screams until she almost makes herself sick.
So the only way we can have visits is if the foster parent is in the room to help the
child calm.” Chamblee stated that, to her knowledge, K.S. had never contributed
financially to L.N.W.’s care.
Chamblee testified that K.S. was diagnosed with bipolar disorder and
depression and that these conditions have remained largely untreated. Chamblee
stated that K.S. has been in denial about her mental health issues during the pendency
of this case as well as during her previous case with the Department. When the
current case began, K.S. denied that she was on medication and that she had been
seeing a psychiatrist.
Chamblee testified that K.S. was charged with aggravated assault of a family
member after she pulled a knife on her sister. She stated that K.S. later violated the
terms of her probation when she continued to live with her sister. Chamblee testified
that there were allegations of domestic abuse between K.S. and A.W. that occurred
prior to L.N.W.’s birth, and that K.S. remained with A.W. despite the violence.
Chamblee stated that L.N.W. was exceedingly well taken care of in her current foster
home and that she was living with her biological sister.
13 Chamblee testified that Nicole was not considered a viable placement for
L.N.W. because, for a significant period of time during the pendency of the case,
K.S. was living with Nicole and her sister despite the fact that Nicole knew it violated
the terms of K.S.’s probation. Chamblee further stated that Nicole appeared to be
in denial about K.S.’s mental health issues, and provided conflicting information
about the domestic violence in K.S.’s relationship with A.W. Chamblee confirmed
that Nicole was participating in the care of K.W. when K.W. was removed due to
medical neglect, and that Nicole failed to be protect the child. For these reasons,
Nicole was not considered as a possible placement for L.N.W.
LaToya Porter, the Child Advocate volunteer, worked on the case since
October 2016. She agreed with the Department’s goal to terminate K.S.’s parental
rights and stated that termination of K.S.’s parental rights was in L.N.W.’s best
interest because K.S. failed to show any significant change in her circumstances
since L.N.W. was placed in the Department’s care, and L.N.W. was living in an
adoptive home with her biological sibling.
Nicole filed an intervention in the case requesting that L.N.W. be placed with
her. At trial, Nicole testified that K.S. lived with her but moved out when she went
to jail for assaulting her sister, and then later moved in with Nicole’s mother. Nicole
denied telling Chamblee that K.S. and A.W. did not have problems in their
relationship. She testified that they do, in fact, have problems, and that she would
14 be willing to protect L.N.W. from those problems. Nicole testified that she does not
like A.W. and that he has a drug problem. She further testified that she did not think
K.S. and A.W. should be around L.N.W. “until they get on their medication.” She
denied that K.S. has a drug problem; rather, she thinks her problem is “being with
[A.W.]” and not taking her medication.
At the conclusion of the hearing, the Department requested termination of
K.S.’s and A.W.’s parental rights under subsection (M) of Family Code section
161.001(b)(1) and that the court maintain L.N.W.’s current placement. The attorney
ad litem for L.N.W. concurred with the Department’s request. The trial court granted
the Department’s request, approved L.N.W.’s foster placement, and appointed the
Department as L.N.W.’s sole managing conservator. On June 22, 2017, the trial
court signed its final decree of termination, in which it listed section
161.001(b)(1)(M)4 as the basis for terminating K.S.’s parental rights, and found that
4 As relevant here, section 161.001(b)(1) states that the court may order termination of the parent-child relationship if the court finds by clear and convincing evidence, in addition to the best interest finding, that the parent has: .... (M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state[.]
TEX. FAM. CODE ANN. § 161.001(b)(1)(M) (West 2014).
15 termination of parental rights was in L.N.W.’s best interest.5 This timely appeal
followed.
Discussion
K.S. acknowledges that the evidence is sufficient to support the predicate
finding under Family Code section 161.001(b)(1)(M) and does not challenge that
finding on appeal. She also concedes that the evidence is legally sufficient to support
the trial court’s finding that termination was in L.N.W.’s best interest. In her sole
issue, K.S. argues that the evidence is factually insufficient to support the trial
court’s best interest finding.
A. Burden of Proof and Standard of Review
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S .W.3d 355, 361 (Tex. 2003). A parent’s rights to “the companionship, care,
custody, and management” of his or her child is a constitutional interest “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102
S.Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 548 (Tex. 2003).
Accordingly, we strictly scrutinize termination proceedings and strictly construe the
5 The trial court also terminated A.W.’s parental rights pursuant to section 161.001(b)(1)(M), and found that termination was in the child’s best interest. 16 involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985).
In a case to terminate parental rights under section 161.001, the Department
must establish, by clear and convincing evidence, that (1) the parent committed one
or more of the enumerated acts or omissions justifying termination and (2)
termination is in the best interest of the child. TEX. FAM. CODE ANN.
§ 161.001(b)(1)-(2). Clear and convincing evidence is “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.” Id. § 101.007 (West 2014);
In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002) (quoting TEX. FAM. CODE ANN.
§ 101.0007). “Only one predicate finding under section 161.001(1)[(b)] 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 at 362.
When conducting a factual sufficiency review, we consider and weigh all of
the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009). “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, then
the evidence is factually insufficient.” Id. (quoting In re J.F.C., 96 S.W.3d at 266).
17 We give due deference to the fact finder’s findings and we cannot substitute our own
judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
B. Best Interest of the Child
There is a strong presumption that the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). 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 Supp. 2017).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding: the desires of the
child; the present and future physical and emotional needs of the child; the present
and future emotional and physical danger to the child; the parental abilities of the
persons seeking custody; the programs available to assist those persons seeking
custody in promoting the best interest of the child; the plans for the child by the
individuals or agency seeking custody; the stability of the home or proposed
placement; acts or omissions of the parent which may indicate the existing
parent-child relationship is not appropriate; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list of factors
is not exhaustive, however, and evidence is not required on all of the factors to
18 support a finding that terminating a parent’s rights is in the child’s best interest. Id.;
In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting
termination under one of the grounds listed in section 161.001(1) can also be
considered in support of a finding that termination is in the best interest of the child.
See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be
probative of both section 161.001(b)(1) grounds and best interest).
In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment, including: the child’s age and physical and mental vulnerabilities; 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; the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; and whether
the child’s family demonstrates adequate parenting skills, including providing the
child with minimally adequate health and nutritional care, a safe physical home
environment, and an understanding of the child’s needs and capabilities. TEX. FAM.
CODE ANN. § 263.307(b) (West Supp. 2017); In re R.R., 209 S.W.3d at 116.
19 1. Child’s Desires and Needs, and Parental Abilities of Persons Seeking Custody
The first and second Holley factors consider the desires of the child and the
present and future physical and emotional needs of the child. The fourth Holley
factor looks at the parental abilities of those seeking custody of the child.
When children are too young to express their desires, the fact finder may
consider whether the children have bonded with the proposed adoptive family, are
well cared for by them, and have spent minimal time with a parent. See In re S.R.,
452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A
child’s need for permanence through the establishment of a “stable, permanent
home” has been recognized as the paramount consideration in a best interest
determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no
pet.). Therefore, evidence about the present and future placement of the child is
relevant to the best interest determination. See In re C.H., 89 S.W.3d at 28.
At the time of trial, K.S. was ten months old and, thus, too young to testify
about her desires. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st
Dist.] 2013, no pet.). However, when Chamblee was asked whether L.N.W.
appeared to be bonded with K.S. during their visits every other week, she responded,
“We actually have to have the foster parent in the visits with us, otherwise the child
screams and screams until she almost makes herself sick. So the only way we can
have visits is if the foster parent is in the room to help the child calm.” The 20 Department also presented evidence that L.N.W. has been in her current foster home
since shortly after her birth, she is a happy child who is very bonded to her foster
family, and she is living with her biological sibling who was previously adopted by
the family. L.N.W.’s current foster family has also expressed interest in adopting
her.
With regard to L.N.W.’s present and future physical and emotional needs and
the parental abilities of those seeking custody of L.N.W., Warren noted during her
visit to K.S.’s home in August 2016 that K.S. had everything necessary to care for
L.N.W. in the home, including a bassinet, diapers, and formula. K.S.’s sister told
Warren that K.S. was an excellent mother who provided all the care for L.N.W.
Chamblee testified that L.N.W. is developmentally on target, that she is
“exceedingly well taken care of” in her foster family and that all of her needs are
being met by the family, and that she is thriving in the foster placement. Chamblee
testified that, to her knowledge, K.S. had never contributed financially to L.N.W.’s
care after L.N.W. was removed.
We may also consider the parent’s past performance as a parent in evaluating
her present abilities to provide for the child. See In re C.H., 89 S.W.3d at 28.
Although evidence of past misconduct or neglect alone may not be sufficient to show
present unfitness, a fact finder may measure a parent’s future conduct by her past
conduct indicating that it is in a child’s best interest to terminate her parental rights.
21 See In re A.N.D., No. 02–12–00394–CV, 2013 WL 362753, at *2 (Tex. App.—Fort
Worth Jan. 31, 2013, no pet.) (mem. op.).
Here, the record shows that K.S.’s parental rights to her one-year old daughter,
K.W., were terminated approximately six months before L.N.W. was born, based on
the trial court’s finding that K.S. had engaged in conduct which endangered the
physical or emotional well-being of the child. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(E). In a report filed with the court shortly before trial, the Child
Advocate volunteer stated that K.S. had not shown any significant lifestyle changes
since her parental rights to K.W. were terminated. The 4 Cs report also noted that
K.S. had participated in a family assessment in her previous case but that “it appears
that similar issues are presenting and do not appear to have [been] addressed as
recommended from the previous assessment.” The report noted a concern with
“[K.S.]’s extremely low parenting scores, suggesting that she is not fully able to
conceptualize and [meet] the basic needs of her daughter.” The report also stated
that “[K.S.]’s cognitive functioning in the areas of understanding risks of her
domestic violence relationship, appropriate skills for caring for a child with little
support, and the importance of stability in her life are barriers to her being able to
provide a young child with the safety, stability and protection needed.”
This evidence supports the trial court’s best interest finding under the first,
second, and fourth Holley factors. See also TEX. FAM. CODE ANN. § 263.307(b)
22 (listing child’s age, child’s physical and mental vulnerabilities, and parent’s
understanding of child’s needs and capabilities among factors to be considered in
determining whether child’s parents are willing and able to provide child with safe
environment).
2. Plans for the Child and Stability of Home or Proposed Placement
The sixth Holley factor considers the plans for the child by the individuals or
agency seeking custody. The seventh factor looks at the stability of the home or
proposed placement.
Stability and permanence are paramount in the upbringing of children. In re
T.R.M., No. 14-14-00773-CV, 2015 WL 1062171, at *7 (Tex. App.—Houston [14th
Dist.] Mar. 10, 2015, no pet.) (mem. op.); In re T.D.C., 91 S.W.3d 865, 873 (Tex.
App.—Fort Worth 2002, pet. denied). “Without stability, income, or a home, [a
parent] is unable to provide for the child’s emotional and physical needs” and the
parent’s instability “threatens the physical well-being of the child and may put the
child at risk.” In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no
pet.). A parent’s failure to show that she is stable enough to parent a child for any
prolonged period entitles the trial court “to determine that this pattern would likely
continue and that permanency could only be achieved through termination and
adoption.” In re B.S.W., No. 14–04–00496–CV, 2004 WL 2964015, at *9 (Tex.
App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).
23 In support of her assertion that she has a stable home for L.N.W., K.S. points
to the 4 Cs report stating that she lived with Manley, her grandmother, in October
2016, seven months before trial. However, there was no evidence presented at trial
showing that she still lived there or that Manley expressed the desire or ability to
take L.N.W. into her home. Chamblee testified that she did not know where K.S.
was living at the time of trial. In August 2016, Kerr-Smith told Warren that K.S.
had left L.N.W. in her care every weekend since she was born, and that K.S. later
asked her to take care of L.N.W. until she could get herself together and get back on
her medication. There was no evidence showing that K.S. was employed or how she
intended to support L.N.W. Chamblee testified that, to her knowledge, K.S. had
never contributed financially to L.N.W.’s care. The 4 Cs report also noted that
“[K.S.]’s cognitive functioning in the areas of understanding risks of her domestic
violence relationship, appropriate skills for caring for a child with little support, and
the importance of stability in her life are barriers to her being able to provide a young
child with the safety, stability and protection needed.” Chamblee testified that
L.N.W.’s current foster family, with whom L.N.W. has lived since she was born,
expressed interest in adopting L.N.W., and that she is exceedingly well cared for in
her current foster placement. This evidence supports the trial court’s best interest
finding under the sixth and seventh Holley factors. See also TEX. FAM. CODE ANN.
24 § 263.307(b) (listing safe physical home environment as factor to be considered in
determining best interest of child).
3. Endangering Conduct and Parental Acts or Omissions
The third Holley factor examines the present and future emotional and
physical danger to the child. Holley, 544 S.W.2d at 371–72. The eighth factor
considers acts or omissions of the parent that indicate the parent-child relationship
is improper. Id.
Mental illness alone is not grounds for terminating the parent-child
relationship. In re S.R., 452 S.W.3d 351, 363 (Tex. App.—Houston [14th Dist.]
2014, pet. denied); Maxwell v. Tex. Dep’t of Family & Protective Servs., No. 03–
11–00242–CV, 2012 WL 987787, at *9 (Tex. App.—Austin Mar. 23, 2012, no pet.)
(mem. op.). Untreated mental illness, however, can expose a child to endangerment
and is a factor the court may consider. See Maxwell, 2012 WL 987787, at *10; In
re L.L.F., No. 02–11–00485–CV, 2012 WL 2923291, at *15 (Tex. App.—Fort
Worth July 19, 2012, no pet.) (mem. op.) (considering parent’s failure to take
medication to treat mental health issues as factor in creating environment that
endangers child’s emotional or physical well-being); In re J.I.T.P., 99 S.W.3d 841,
845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (considering parent’s mental
health and noncompliance with her medication schedule as factors endangering
child).
25 Here, the record reflects that K.S. has mental health issues that remained
largely untreated during the pendency of the case. K.S. was diagnosed with bipolar
disorder and depression but initially denied having bipolar disorder. K.S. told
Warren that she has not been on medication for two years because she “can handle
[her] depression,” and her psychiatrist said that she longer needed to take it.
Although K.S. told Warren that she saw a therapist at King Haven Southwest every
two weeks, K.S.’s medical records reflected that K.S. had not received services there
since May 2013.
The record also shows that, at the beginning of the case, K.S. called Warren
and told her that she was going to check herself into West Oak Hospital and asked
Kerr-Smith to take care of L.N.W. until she could get back on her medication.
Nicole also told Warren that K.S. was not taking her medication. Chamblee testified
that K.S. has been in denial about her mental health issues during the pendency of
this case as well as during her previous case with the Department. K.S.’s medical
records from West Oaks Psychiatric Hospital include an initial psychiatric
evaluation in 2012 in which the evaluating physician noted that K.S. had expressed
a desire to kill herself. Further, the Department’s service plan as well as the 4 Cs
evaluation recommended that K.S. participate in a mental health assessment and
continue with services to monitor and maintain her mental health needs and
treatment. K.S. never provided proof to the Department that she had attempted to
26 do any of the services outlined in her service plan. The evidence of K.S. failure to
comply with services to improve her mental health is a factor that the trial court
could have considered in finding that she engaged in a course of conduct that
endangered the physical and emotional well-being of L.N.W. See id. at 845–46
(finding mother’s suicidal thoughts and history of noncompliance with medication
schedule relevant to endangerment and best interest analysis); see also Liu v. Dep’t
of Family & Protective Servs., 273 S.W.3d 785, 798 (Tex. App.—Houston [1st Dist.]
2008, no pet.) (considering mother’s mental health issues, hospitalizations, violent
history, and noncompliance with medications in concluding termination was in
child’s best interest).
The evidence also reflects that K.S. was convicted of misdemeanor assault in
2012, for which she was sentenced to three days in jail. See In re O.N.H., 401
S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (noting parent’s past
conduct is probative of her future conduct when evaluating child’s best interest). In
2016, while this case was pending, K.S. was convicted of aggravated assault–family
member for threatening her sister with a knife. In re T.G.R.-M., 404 S.W.3d 7, 14
(Tex. App.—Houston [1st Dist.] 2013, no pet.) (stating that one factor that may
contribute to environment that endangers child’s well-being is parent’s violent
criminal conduct); In re J.I.T.P., 99 S.W.3d at 845 (noting that parent’s violent
conduct can produce home environment that endangers child’s well-being).
27 The evidence also shows that K.S. had been in an abusive relationship with
A.W. K.S. told Warren that there was currently no domestic abuse in the home but
that A.W. had previously abused her by hitting her when he became upset and that
much of the abuse took place when she was pregnant with K.W. K.S. told Warren
that she was no longer in a relationship with A.W. but that they continue to
communicate every other day. K.S. also acknowledged during her 4 Cs evaluation
that her continued relationship with A.W. was a concern but said that she ended the
relationship with him. The report noted, however, that K.S. did not consider the
domestic violence to be a traumatic event, and she attributed A.W.’s unfaithfulness
as the cause of their relationship ending. At trial, Nicole testified that K.S.’s problem
is “being with [A.W.]” and not taking her medication. See Sylvia M. v. Dallas Cty.
Welfare Unit, 771 S.W.2d 198, 201, 204 (Tex. App.—Dallas 1989, no writ) (finding
evidence of endangerment, including “volatile and chaotic” marriage, altercation
during pregnancy, and mother’s repeated reconciliation with abusive spouse,
supported termination of parental rights). The evidence of untreated mental issues,
violent conduct, and domestic abuse supports the trial court’s best interest finding
under the third and eighth Holley factors.
In light of the entire record, the disputed evidence that a reasonable fact finder
could not have credited in favor of the best interest finding is not so significant that
a fact finder could not reasonably have formed a firm belief or conviction that
28 termination of K.S.’s parental rights is in L.N.W.’s best interest. See In re H.R.M.,
209 S.W.3d at 108. After considering the relevant factors under the appropriate
standards of review, we hold that the evidence is factually sufficient to support the
trial court’s finding that termination of the parent-child relationship is in the child’s
best interest. Accordingly, we overrule K.S.’s issue.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd Justice
Panel consists of Justices Higley, Massengale, and Lloyd.