Opinion issued December 17, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00613-CV ——————————— IN THE INTEREST OF M. C. M. A/K/A BABY GIRL M.
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2014-03160J
MEMORANDUM OPINION
Soon after M.M. gave birth to a daughter, M.C.M. (“Molly”),1 the hospital
staff noted some peculiar behavior by Mother and requested a psychiatric
assessment. Soon thereafter, the hospital contacted the Department of Family and
1 The mother, M.M., will be referred to as “Mother,” and the child, M.C.M., will be referred to by the pseudonym, “Molly,” both to protect their privacy and for ease of reading. Protective Services. The Department obtained emergency orders and took custody
of Molly at the hospital. Following various hearings and a full trial, Mother’s
parental rights were terminated, making Molly eligible to be adopted by the foster
parents who had been raising her.
In two issues, Mother contends that the evidence was legally and factually
insufficient to support termination of her parental rights under Section
161.001(1)(E) of the Family Code2 or to support the trial court’s ruling that
termination was in Molly’s best interest.
We affirm.
Background
Mother has five other living children. When the fourth of those children was
born in 2002, both Mother and the child tested positive for cocaine. Mother
admitted drug and alcohol use during that pregnancy, and the Department initiated
custody proceedings. When the fifth child was born in 2005, the Department again
became involved. During that inquiry, Mother relinquished her parental rights to
all five of her children. They live with other family members.
When Mother was admitted to the hospital in 2014 to deliver Molly, the
hospital staff noted in her medical records various “pregnancy problems,”
2 Mother’s parental rights were terminated under four separate subsections to Section 161.001(1): (E), (I), (N), and (O). TEX. FAM. CODE ANN. § 161.001(1) (West Supp. 2015). She only challenges the (E) basis for termination. 2 including “severe pre-eclampsia,” “intractable” headaches, “tobacco use during
pregnancy,” and a history of “depression and social stressors,” as well as “self
discontinued” medication for depression. The records also contain a reference to
“Bipolar disorder.” Additionally, the medical records indicate Mother used
marijuana during her pregnancy with Molly. She admitted using marijuana during
the first trimester, and she tested positive for marijuana during a second-trimester
drug test. Molly was born full term but had a low birth weight of only four pounds.
Mother’s medical records contain numerous entries concerning aggressive
and delusional behavior. The hospital staff described Mother as “shouting
aggressively” and “moving towards [a physician] aggressively.” She was also
described as “irate and aggressive.” In a separate entry, she was described as
demonstrating “acute agitation.”
Mother had no visitors at the hospital. When asked about her home situation,
Mother purportedly gave inconsistent statements to the hospital staff concerning
who lived with her and whether Molly’s father would be involved and able to help.
She also gave inconsistent responses regarding her mental health history and level
of treatment compliance.
To obtain more information, the hospital staff contacted Mother’s midwife,
who told them that Mother had made “multiple disorganized statements” to her and
had shown signs of “delusions” during her pregnancy with Molly. The midwife
3 also alerted the hospital staff that she understood Mother did not have custody of
her other five children because the Department of Child Protective Services
intervened, not because, as Mother had indicated to the hospital staff, she had
elected to surrender custody.
In response, the hospital’s psychiatric physicians performed a “complete
safety assessment,” and Dr. Jin Y. Han of the Baylor College of Medicine
Menninger Department of Psychiatry and Behavioral Sciences prepared a written
report the day after Molly’s delivery. The report noted a history of depression but
stated that, according to Mother, her last depressive episode was in 2003—more
than ten years earlier. The report also noted the information obtained from
Mother’s midwife, including prior delusional thoughts and involvement with the
Department. The examination findings included “slightly pressured” speech,
“slightly expansive” affect, a “perseverative” fixation on Molly’s care schedule,
“poor” insight, judgement, and impulse control, and current “hypomanic” state.
The psychiatric evaluation concluded with a psychiatric assessment that Mother “is
at risk for harming [the] child at [the] present time.”
After the hospital received the results of the psychiatric assessment, it
contacted the Department to begin an inquiry, and the hospital staff supervised all
of Mother’s interactions with Molly at the hospital.
4 The Department’s caseworker attempted to interview Mother at the hospital,
but she was “uncooperative.” According to the caseworker, Mother appeared
delusional and made statements that the two of them had been “in the war
together.” The war reference was later explained to be a reference to serving in
Vietnam together.
The Department obtained emergency temporary managing conservatorship
of Molly, took custody of her from the hospital, placed her with foster parents, and
initiated a parenting plan. Mother was required to refrain from any criminal
activity; comply with all court orders; make reasonable efforts to attend meetings
and court hearings; secure and maintain legal employment and provide
documentation of income; secure and maintain a stable residence; submit to
random drug tests with the understanding that failure to do so would be considered
by the Department to indicate current use of drugs or alcohol and that a missed
drug test would be considered an automatic positive result; enroll in, actively
participate in, and successfully complete a six-to-eight week parenting education
class; and complete a psycho-social evaluation, psychiatric evaluation, individual
therapy, and substance abuse assessment.
A bench trial was held in May 2015. The Department caseworker,
N. Williams, testified that Mother had been “diagnosed with multiple mental health
issues [including] mood disorder [and] bipolar disorder” before Molly was born.
5 The referral was made to the Department because Mother was displaying signs of
mental illness after delivery. Williams testified that Mother and Molly tested
negative for drugs at the hospital but Mother subsequently tested positive for
cocaine and, at a later date, for marijuana.
When asked whether Mother complied with the requirements stated in the
parenting plan, Williams testified that Mother failed to comply with “[b]asically
any of them.” She failed to undergo any of the evaluations or complete the
parenting classes. She failed two drug tests. And she refused subsequent hair-
follicle drug tests. Further, once the Department allowed visitations with Molly,
Mother visited her only once; she missed all three of the other scheduled visits.
Williams also testified about Mother’s prior history with the Department.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued December 17, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-15-00613-CV ——————————— IN THE INTEREST OF M. C. M. A/K/A BABY GIRL M.
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2014-03160J
MEMORANDUM OPINION
Soon after M.M. gave birth to a daughter, M.C.M. (“Molly”),1 the hospital
staff noted some peculiar behavior by Mother and requested a psychiatric
assessment. Soon thereafter, the hospital contacted the Department of Family and
1 The mother, M.M., will be referred to as “Mother,” and the child, M.C.M., will be referred to by the pseudonym, “Molly,” both to protect their privacy and for ease of reading. Protective Services. The Department obtained emergency orders and took custody
of Molly at the hospital. Following various hearings and a full trial, Mother’s
parental rights were terminated, making Molly eligible to be adopted by the foster
parents who had been raising her.
In two issues, Mother contends that the evidence was legally and factually
insufficient to support termination of her parental rights under Section
161.001(1)(E) of the Family Code2 or to support the trial court’s ruling that
termination was in Molly’s best interest.
We affirm.
Background
Mother has five other living children. When the fourth of those children was
born in 2002, both Mother and the child tested positive for cocaine. Mother
admitted drug and alcohol use during that pregnancy, and the Department initiated
custody proceedings. When the fifth child was born in 2005, the Department again
became involved. During that inquiry, Mother relinquished her parental rights to
all five of her children. They live with other family members.
When Mother was admitted to the hospital in 2014 to deliver Molly, the
hospital staff noted in her medical records various “pregnancy problems,”
2 Mother’s parental rights were terminated under four separate subsections to Section 161.001(1): (E), (I), (N), and (O). TEX. FAM. CODE ANN. § 161.001(1) (West Supp. 2015). She only challenges the (E) basis for termination. 2 including “severe pre-eclampsia,” “intractable” headaches, “tobacco use during
pregnancy,” and a history of “depression and social stressors,” as well as “self
discontinued” medication for depression. The records also contain a reference to
“Bipolar disorder.” Additionally, the medical records indicate Mother used
marijuana during her pregnancy with Molly. She admitted using marijuana during
the first trimester, and she tested positive for marijuana during a second-trimester
drug test. Molly was born full term but had a low birth weight of only four pounds.
Mother’s medical records contain numerous entries concerning aggressive
and delusional behavior. The hospital staff described Mother as “shouting
aggressively” and “moving towards [a physician] aggressively.” She was also
described as “irate and aggressive.” In a separate entry, she was described as
demonstrating “acute agitation.”
Mother had no visitors at the hospital. When asked about her home situation,
Mother purportedly gave inconsistent statements to the hospital staff concerning
who lived with her and whether Molly’s father would be involved and able to help.
She also gave inconsistent responses regarding her mental health history and level
of treatment compliance.
To obtain more information, the hospital staff contacted Mother’s midwife,
who told them that Mother had made “multiple disorganized statements” to her and
had shown signs of “delusions” during her pregnancy with Molly. The midwife
3 also alerted the hospital staff that she understood Mother did not have custody of
her other five children because the Department of Child Protective Services
intervened, not because, as Mother had indicated to the hospital staff, she had
elected to surrender custody.
In response, the hospital’s psychiatric physicians performed a “complete
safety assessment,” and Dr. Jin Y. Han of the Baylor College of Medicine
Menninger Department of Psychiatry and Behavioral Sciences prepared a written
report the day after Molly’s delivery. The report noted a history of depression but
stated that, according to Mother, her last depressive episode was in 2003—more
than ten years earlier. The report also noted the information obtained from
Mother’s midwife, including prior delusional thoughts and involvement with the
Department. The examination findings included “slightly pressured” speech,
“slightly expansive” affect, a “perseverative” fixation on Molly’s care schedule,
“poor” insight, judgement, and impulse control, and current “hypomanic” state.
The psychiatric evaluation concluded with a psychiatric assessment that Mother “is
at risk for harming [the] child at [the] present time.”
After the hospital received the results of the psychiatric assessment, it
contacted the Department to begin an inquiry, and the hospital staff supervised all
of Mother’s interactions with Molly at the hospital.
4 The Department’s caseworker attempted to interview Mother at the hospital,
but she was “uncooperative.” According to the caseworker, Mother appeared
delusional and made statements that the two of them had been “in the war
together.” The war reference was later explained to be a reference to serving in
Vietnam together.
The Department obtained emergency temporary managing conservatorship
of Molly, took custody of her from the hospital, placed her with foster parents, and
initiated a parenting plan. Mother was required to refrain from any criminal
activity; comply with all court orders; make reasonable efforts to attend meetings
and court hearings; secure and maintain legal employment and provide
documentation of income; secure and maintain a stable residence; submit to
random drug tests with the understanding that failure to do so would be considered
by the Department to indicate current use of drugs or alcohol and that a missed
drug test would be considered an automatic positive result; enroll in, actively
participate in, and successfully complete a six-to-eight week parenting education
class; and complete a psycho-social evaluation, psychiatric evaluation, individual
therapy, and substance abuse assessment.
A bench trial was held in May 2015. The Department caseworker,
N. Williams, testified that Mother had been “diagnosed with multiple mental health
issues [including] mood disorder [and] bipolar disorder” before Molly was born.
5 The referral was made to the Department because Mother was displaying signs of
mental illness after delivery. Williams testified that Mother and Molly tested
negative for drugs at the hospital but Mother subsequently tested positive for
cocaine and, at a later date, for marijuana.
When asked whether Mother complied with the requirements stated in the
parenting plan, Williams testified that Mother failed to comply with “[b]asically
any of them.” She failed to undergo any of the evaluations or complete the
parenting classes. She failed two drug tests. And she refused subsequent hair-
follicle drug tests. Further, once the Department allowed visitations with Molly,
Mother visited her only once; she missed all three of the other scheduled visits.
Williams also testified about Mother’s prior history with the Department.
Mother had tested positive for cocaine in 2002 at the birth of one of the older
children. She subsequently relinquished custody of all five of her children.
Mother’s drug use continued; she admitted to using marijuana in the early stages of
her pregnancy with Molly. Mother denied using drugs after realizing she was
pregnant, but she failed a drug test three months later, midway through her
pregnancy.
After proffering the above evidence, as well as evidence that Mother was
convicted of trespass and sentenced to a period of confinement during the
6 pendency of the termination proceeding, the Department requested that the trial
court terminate Mother’s parental rights.
Mother testified at trial. Contrary to the evidence, she denied using any
drugs while pregnant with Molly and denied that she had tested positive for drug
use while the parental termination suit was pending. Mother stated that she refused
to comply with the court-ordered hair-follicle drug tests because, at first, she
believed they were going to cut “at least a hundred strands” of her hair to perform
the test, and she was unwilling to allow her hair to be cut so drastically. Upon
further questioning by the judge, Mother admitted that she would have refused the
hair-follicle drug test even if they removed only a single strand. She also admitting
to realizing that a refused drug test would be treated as a positive test result,
saying, “I know. You told me.” While she agreed that she did not complete the
eight sessions of parenting classes the Department required, she testified that she
attended parenting seminars at other locations in an effort to fully comply with the
eight-class requirement. Finally, Mother denied ever being diagnosed with a
mental health issue.
The Department sought termination under Family Code Subsections
161.001(1)(E), conduct endangerment; (I), failure to submit to a court order; (N),
constructive abandonment; and (O), failure to comply with a court order. See In re
M.S., 115 S.W.3d 534, 534 (Tex. 2003) (discussing each basis for termination). It
7 argued that Mother’s drug use and failure to address her mental-health issues
satisfied Subsection (E), her refusal to submit to hair-follicle drug testing satisfied
Subsection (I); her failure to attend visitations with Molly satisfied Subsection (N),
and her failure to meet any of the requirements of her parenting plan, as ordered by
the trial court, satisfied Subsection (O).
The trial court found by clear and convincing evidence that Mother’s
parental rights should be terminated under Subsections (E), (I), (N), and (O), and,
further, that termination was in Molly’s best interest. Mother’s parental rights were
terminated, and she appealed.
Review of Bases for Termination
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 children’ is an interest far more precious
than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct.
1388, 1397 (1982) (quoting Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C.,
452 U.S. 18, 27, 101 S. Ct. 2153, 2160 (1981)); see In re M.S., 115 S.W.3d at 547.
Accordingly, termination proceedings are strictly scrutinized, and involuntary-
termination statutes are strictly construed in favor of the parent. Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Nonetheless, “the rights of natural parents are not
8 absolute” and “[t]he rights of parenthood are accorded only to those fit to accept
the accompanying responsibilities.” In re A.V., 113 S.W.3d at 361 (quoting In re
J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that parents may forfeit
their parental rights by their acts or omissions, a court’s primary focus in a
termination suit is the protection of the child’s best interest. Id.
To terminate parental rights under Section 161.001 of the Family Code, 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) (West Supp. 2015). 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).
Mother challenges the legal and factual sufficiency of the evidence to
support the trial court’s predicate findings under Subsection (E) and to conclude
that termination is in Molly’s best interest. When the legal sufficiency of the
evidence supporting the termination of parental rights is challenged, the reviewing
court looks at all of the evidence in the light most favorable to the termination
finding to determine whether a reasonable trier of fact could have formed a firm
belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344
9 (Tex. 2009); In re J.F.C., 96 S.W.3d at 265–66. The reviewing court must assume
that the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at
266. It should disregard all evidence that a reasonable factfinder could have
disbelieved or found to be incredible. In re J.O.A., 283 S.W.3d at 344; In re J.F.C.,
96 S.W.3d at 266. If the reviewing court determines that no reasonable factfinder
could have formed a firm belief or conviction that the matter to be proved was true,
the court must conclude that the evidence on that matter is legally insufficient. In
re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.
Only when the factual sufficiency of the evidence is challenged does the
reviewing court consider disputed or conflicting evidence. In re J.O.A., 283
S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. The evidence is factually
insufficient in a parental rights termination case 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. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d
at 266.
A single predicate finding under Section 161.001(1) of the Family Code is
sufficient 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 (affirming
10 termination decree based on one predicate without reaching second challenged
predicate); In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (affirming termination decree based on single predicate). If
multiple predicate grounds are found by the trial court, we will affirm on any one
ground because only one is necessary for termination of parental rights. In re D.S.,
333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.); In re S.N., 272 S.W.3d
45, 49 (Tex. App.—Waco 2008, no pet.).
Here, the trial court based the termination of Mother’s parental rights on four
predicate grounds—Subsections 161.001(1)(E), (I), (N), and (O)—but she
challenges only the Subsection (E) ground. By not challenging the sufficiency of
the evidence on termination under Subsections (I), (N), and (O), Mother has
waived any complaint about the trial court’s findings under those subsections.
Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 102 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (“Holloway does not challenge the
sufficiency of the evidence supporting the findings under [Subsections (F), (N),
and (O)], and thus he waives any complaint about the sufficiency of the evidence
to support these findings.”); Gamez v. Tex. Dep’t of Family & Protective Servs.,
No. 03–09–00190–CV, 2009 WL 4456150, at *7 n.8 (Tex. App.—Austin Dec. 1,
2009, no pet.) (mem. op.) (“[T]he unchallenged finding concerning subsection
(O) alone is sufficient to support the district court’s order terminating Gamez’s
11 parental rights.”); see In re A.V., 113 S.W.3d at 362 (“Only one predicate finding
under section 161.001(1) is necessary to support a judgment of termination when
there is also a finding that termination is in the child’s best interest.”).
Because each of the unchallenged findings is sufficient to justify
termination, we overrule her first issue and proceed to consider Mother’s argument
that the evidence is legally and factually insufficient to support the trial court’s
finding that termination of her parental rights is in Molly’s best interest.
Best Interest of the Child
Mother challenges the legal and factual sufficiency of the evidence to
support the trial court’s finding that termination of her parental rights is in Molly’s
best interest. In determining whether termination of parental rights is in a child’s
best interest, we consider several non-exclusive factors, including (1) the child’s
desires, (2) the current and future physical and emotional needs of the child, (3) the
current and future physical danger to the child, (4) the parental abilities of the
person seeking custody, (5) the availability of programs to assist the person
seeking custody in promoting the best interest of the child, (6) the plans for the
child by the person seeking custody, (7) the stability of the home, (8) any acts or
omissions of the parent that may indicate that the parent-child relationship is
improper, and (9) any excuse for the acts or omissions of the parent. Holley v.
Adams, 544 S.W.2d 367, 372 (Tex. 1976).
12 The Department is not required to prove that all of these factors support the
termination of parental rights, and the absence of evidence on some factors does
not preclude the factfinder from reasonably forming a strong conviction that
termination is in the child’s best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex.
2002). Evidence establishing a predicate act under Section 161.001(1) may also be
relevant to determining the best interest of the child. See id. at 28.
The trial evidence demonstrates that Mother has a history of mental illness
and illegal drug use. She was aggressive with hospital staff following Molly’s
birth, gave inconsistent statements regarding the level of support available to her to
care for Molly, and made delusional statements to hospital staff and the
Department caseworker. A psychiatric evaluation performed at the hospital
indicated behavior consistent with mental illness, as well as a conclusion that
Mother was “at risk for harming [the] child at [the] present time.”
Mother tested positive for drug use at the birth of an older child and
subsequently relinquished her parental rights to several children. She admitted drug
use in the first trimester of her pregnancy with Molly and then tested positive for
cocaine and marijuana during the pendency of this suit. See In re A.C., 394 S.W.3d
633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (concluding that past and
ongoing drug use weighed in favor of conclusion that termination of parental rights
is in child’s best interest); see also In re G.A., No. 01–11–00565–CV, 2012 WL
13 1068630, at *6 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem.
op.) (parent’s drug use can endanger child’s physical or emotional well-being and
indicates instability in home environment); In re J.T.G., 121 S.W.3d 117, 125
(Tex. App.—Fort Worth 2003, no pet.) (parent’s illegal drug use supports
conclusion that environment endangers physical or emotional well-being of
children). Mother admitted that she had refused to submit to hair-follicle drug tests
even though she realized a refused test would be treated as a positive test result.
Finally, Mother refused services under her parenting plan aimed at obtaining
psycho-social and mental health evaluations as well as therapy.
The Department caseworker testified that it was in Molly’s best interest that
Mother’s parental rights be terminated. She testified that Molly’s foster parents
were providing a loving home and meeting all of Molly’s needs. The foster mother
testified similarly and stated that she and her husband intended to adopt Molly if
Mother’s parental rights were terminated.
Viewing the evidence related to the Holley factors in the light most
favorable to the finding, we hold that a reasonable factfinder could have formed a
firm belief or conviction that termination of Mother’s parental rights is in the best
interest of the child. We, therefore, hold that the evidence is legally and factually
sufficient to support the trial court’s finding that termination of Mother’s parental
rights is in Molly’s best interest and overrule Mother’s second issue.
14 Conclusion
We affirm the judgment of the trial court.
Harvey Brown Justice
Panel consists of Chief Justice Radack and Justices Massengale and Brown.