in the Interest of M. D. v.

• Court: Court of Appeals of Texas
• Decided: October 27, 2005
• Docket: 14-04-00463-CV
• Status: Published

Opinion

Motion for Rehearing Overruled; Memorandum Opinion of July 28, 2005 Withdrawn; Affirmed and Substitute Memorandum Opinion filed October 27, 2005

Motion for Rehearing Overruled; Memorandum Opinion of July 28, 2005 Withdrawn; Affirmed and Substitute Memorandum Opinion filed October 27, 2005.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00463-CV

IN THE INTEREST OF M.D.V.

________________________________________________________________

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 02‑03051J

________________________________________________________________

S U B S T I T U T E   M E M O R A N D U M   O P I N I O N

We overrule appellant=s motion for rehearing.  We withdraw our opinion dated July 28, 2005 and issue this substitute memorandum opinion.  Appellant appeals the involuntary termination of her parental rights to her daughter, M.D.V.  In two issues, she contends the evidence is legally and factually insufficient to support (1) the trial court=s finding of endangerment under section 161.001(1)(E) of the Texas Family Code, and (2) the trial court=s finding that termination of the parent-child relationship is in M.D.V.=s best interest.  We affirm.

I.  Background

Appellant has four children, including M.D.V., who was two-and-a-half years old at the time of trial.  In April 2002, the Texas Department of Protective and Regulatory Services (Athe Department@) took possession of M.D.V., who was then four months old, and her two older siblings.^[1]  The Department took possession because M.D.V.=s then two year old sister was found wandering by herself near a busy street outside appellant=s apartment.  At that time, appellant already had a history with the Department because M.D.V. had tested positive for marijuana at birth, and the Department had previously received reports of appellant=s failure to supervise her children and her drug use while caring for her children.

After the children were removed, reunification became the Department=s goal.  The Department was granted temporary conservatorship of the children.  Appellant was ordered to complete a family service plan to get the children back.  The plan required appellant to complete parenting classes, a drug assessment, and drug treatment, seek stable employment, and maintain proper housing.  Appellant completed the parenting classes, drug assessment, and drug treatment, but it is disputed whether she sought stable employment or maintained proper housing.

The children were returned to appellant in September of 2003.  As a condition for keeping the children, appellant was required to submit to random drug testing and continue to seek stable employment and maintain proper housing.  Carrie Coleman, an employee of the Department=s AFamily Base Safety Services,@ was assigned to assess appellant=s needs and help her improve her parenting skills.  Coleman assessed that appellant needed to learn parenting skills for small and special needs children,^[2] child development skills, child safety skills, anger management, and housing and behavior modification.  According to the Department, appellant made no progress toward completing the program Coleman designed for her because she was either not home for Coleman=s scheduled visits or was angry and uncooperative.  As we will later describe in more detail, Coleman also observed acts which she thought endangered the children=s safety.  Further, the Department believed appellant was not employed and did not maintain adequate housing after the children were returned to her.  Moreover, appellant failed a random drug test in November 2003.

In January 2004, the Department again removed the children from the home.^[3]  Following a bench trial in April 2004, the trial court terminated appellant=s parental rights to M.D.V. and the youngest child.^[4]  M.D.V.=s father had filed an affidavit waiving his interest; therefore, the trial court also terminated his parental rights to M.D.V.

II.  Standard of Review

The burden of proof at trial in parental termination cases is by clear and convincing evidence.  Tex. Fam. Code Ann. ' 161.001 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); In re J.I.T.P., 99 S.W.3d 841, 843 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  AClear 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 (Vernon 2002); In re J.F.C., 96 S.W.3d at 264.

When determining legal sufficiency, we review all the evidence in the light most favorable to the finding Ato 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 at 266; In re J.I.T.P., 99 S.W.3d at 843B44.  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 do so.  In re J.F.C., 96 S.W.3d at 266; In re J.I.T.P., 99 S.W.3d at 844.  We disregard all evidence that a reasonable fact finder could have disbelieved or found to have been incredible. In re J.F.C., 96 S.W.3d at 266; In re J.I.T.P., 99 S.W.3d at 844.

When reviewing factual sufficiency, we determine Awhether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State=s allegations.@  In re J.F.C., 96 S.W.3d at 266; see In re J.I.T.P., 99 S.W.3d at 844.  We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding.  In re J.F.C., 96 S.W.3d at 266; In re J.I.T.P., 99 S.W.3d at 844.  AIf, 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.@  In re J.F.C., 96 S.W.3d at 266; In re J.I.T.P., 99 S.W.3d at 844.

The natural right between parents and their children is one of constitutional dimension.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re U.P., 105 S.W.3d 222, 229 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).  Therefore, termination proceedings should be strictly scrutinized, and the involuntary termination statutes should be strictly construed in favor of the parent.  Holick, 685 S.W.2d at 20B21; In re U.P., 105 S.W.3d at 229.

III.  Discussion

To terminate a parent‑child relationship, a trial court must find by clear and convincing evidence that (1) the parent committed one or more of the acts specifically named in section 161.001(1) of the Texas Family Code as grounds for termination, and (2) termination is in the best interest of the child.  Tex. Fam. Code Ann. ' 161.001; In re J.I.T.P., 99 S.W.3d at 844.  Here, the trial court found by clear and convincing evidence that appellant Aengaged in conduct or knowingly placed [M.D.V.] with persons who engaged in conduct which endangers the physical or emotional well-being of [M.D.V.],@ see Tex. Fam. Code Ann. ' 161.001(1)(E), and that termination of the parent-child relationship is in M.D.V.=s best interest.  Appellant challenges both findings.

A.        Endangerment Pursuant To Section 161.001(1)(E)

In her first issue, appellant contends the evidence is legally and factually insufficient to support the trial court=s endangerment finding.^[5]  Under section 161.001(1)(E), Aendanger@  means to jeopardize or expose the child to loss or injury.  In re J.I.T.P., 99 S.W.3d at 844 (citing Tex. Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).  While Aendanger@ means Amore than a threat of metaphysical injury or the possible ill effects of a less‑than‑ideal family environment,@ the endangering acts need not be directed at or cause actual injury to the child.  Boyd, 727 S.W.2d at 533; see In re J.I.T.P., 99 S.W.3d at 844.  Endangerment may be satisfied by showing a parent engaged in a course of conduct that endangered the child=s physical and emotional well-being.  In re U.P., 105 S.W.3d at 233.  Endangerment can be exhibited through actions and omissions.  Id.; In re J.I.T.P., 99 S.W.3d at 844.  Further, acts of endangerment may precede the child=s birth.  In re U.P., 105 S.W.3d at 234; In re J.I.T.P., 99 S.W.3d at 844.  Here, the Department contends the trial court=s endangerment finding is supported primarily by evidence of appellant=s drug use, but also by evidence that appellant did not adequately protect or supervise her young children.

1.         Appellant=s Drug Use

Endangerment under section 161.001(1)(E) may include evidence of drug addiction and its effect on a parent=s life and ability to perform the duties of a parent.  In re U.P., 105 S.W.3d at 234B36.  Appellant=s history of drug use is undisputed.  The evidence demonstrates that she has used marijuana for at least ten years^[6] and also used cocaine and illegal prescription drugs in the past.  Although appellant acknowledges her addiction, she contends her drug use has not endangered her children because they have not been physically harmed and are in good health.

To the contrary, appellant admitted using marijuana and illegal prescription drugs while she was pregnant with M.D.V.^[7]  A mother=s use of drugs during pregnancy may be conduct which endangers the physical and emotional well‑being of the child.  In re S.M.L.D., 150 S.W.3d 754, 757 (Tex. App.CAmarillo 2004, no pet.); In re W.A.B., 979 S.W.2d 804, 806 (Tex. App.CHouston [14th Dist.] 1998, pet. denied), disapproved of on other grounds by In re J.F.C., 96 S.W.3d at 267; Dupree v. Texas Dep=t of Protective and Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.CDallas 1995, no writ).  Here, appellant=s drug use did physically harm M.D.V. because she was born with marijuana in her system.  Nonetheless, appellant suggests M.D.V. was not harmed because there is no evidence of any resulting medical condition.  However, we reject the suggestion that a baby born with the abnormal condition of marijuana in her system has not been harmed simply because there is no evidence of further medical effects.  Regardless, the endangering act need not cause actual injury to the child; it is sufficient that the act jeopardizes or exposes the child to loss or injury.  See Boyd, 727 S.W.2d at 533;  In re J.I.T.P., 99 S.W.3d at 844.  Here, appellant=s drug use while pregnant endangered M.D.V. because she was exposed to the possibility of being born with adverse medical conditions.

Moreover, appellant admitted she used drugs when her children were in her care.  Before the Department first took custody of the children, there was a time when she used marijuana daily.  She also used cocaine and illegal prescription drugs while some of the children were in her care although she last used these substances approximately three or four years before trial.  Appellant argues that there is no evidence of how her drug use while caring for her children endangered them.  However, the trial court could have formed a firm belief or conviction that appellant=s use of a mind-altering, illegal substance while caring for her children jeopardized or exposed the children to loss or injury.  See In the Interest of N.K., 99 S.W.3d 295, 300 (Tex. App.CTexarkana 2003, no pet.) (stating that the specific danger to the child=s well‑being need not be established as an independent proposition, but may be inferred from parental misconduct).

Moreover, the record contains evidence of appellant=s inability or unwillingness to abstain from drug use despite its effect on M.D.V. and on appellant=s ability to maintain a relationship with M.D.V.  In particular, appellant resumed using marijuana a few months after M.D.V.  was born marijuana-positive.  Further, appellant used marijuana even after the children were returned to her in September 2003.  She tested positive for marijuana on a random drug test in November 2003Capproximately five months before trial.  Appellant claimed she was not using marijuana consistently when she failed the test.  Rather, she characterized this occasion as an isolated incident and notes she passed a random drug test a month later.

However, there was some evidence the November 2003 relapse was not an isolated incident.  Carrie Coleman testified that appellant appeared Ahigh@ on several of her visits. Further, the record contains evidence that appellant did not fully submit to mandatory drug testing after the children were returned to her.  Isaac Stevens, a Turning Point counselor, testified that appellant appeared only twice for random urinalysis despite thirteen attempts to contact her.  Stevens also testified that based on his experience, a client who does not appear or cannot be located after numerous attempts is trying to avoid the test. 

Appellant asserts that Stevens=s testimony was inadmissible hearsay because it was not based on his personal knowledge but rather based on a log prepared by his secretary.^[8]  Stevens first testified that his secretary attempted to contacted appellant to appear for drug testing.  After appellant made a hearsay objection, Stevens stated that his testimony was based on a log.  Appellant then objected that the log was not introduced and Stevens had no personal knowledge of the information contained in the log.  However, Stevens then testified that he had personal knowledge of the information in the log, and the court overruled appellant=s objection.  Based on this exchange, we cannot conclude the trial court abused its discretion by admitting Stevens=s testimony.  See Santos v. Comm=n for Lawyer Discipline, 140 S.W.3d 397, 401 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (recognizing trial court=s decision to admit evidence is reviewed for abuse of discretion).   Further, Stevens=s testimony is cumulative of other evidence because Carrie Coleman testified, without objection, that Turning Point informed her appellant consistently missed random drug test appointments.  See Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144  (Tex. 2004) (recognizing that erroneous admission of evidence is harmless if it is merely cumulative).

In contrast, appellant testified that Turning Point never left her messages except the two times when she did appear.  However, as fact-finder, the trial court could believe Stevens and infer that appellant avoided the tests, fearing she would not pass.  See In re U.P., 105 S.W.3d at 235.  Nevertheless, even if the November 2003 drug use was an isolated incident, appellant relapsed at that time despite knowing that abstention was a condition for keeping her children and that her conduct was subject to scrutiny.

Consequently, considering appellant=s extensive drug use for ten years, particularly while pregnant with M.D.V. and while caring for her children, her inability or unwillingness to abstain from drug use after M.D.V. was born marijuana positive, and her relapse after the children were returned to her, the trial court could have formed a firm belief or conviction that appellant engaged in a course of conduct which endangered M.D.V.  See In re S.M.L.D., 150 S.W.3d at 757B58 (holding that mother=s drug use during pregnancy and after child was removed from her care, in face of random drug testing that placed her relationship with child at risk, was factually and legally sufficient evidence that she engaged in course of conduct which endangered her child); Robinson v. Tex. Dept. of Protective and Regulatory Servs., 89 S.W.3d 679, 686B87 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (holding mother=s drug activity and violation of community supervision after agreeing not to commit such acts in reunification plan established clear and convincing proof of endangerment; her testimony that drug problems ceased within two months before trial did not outweigh evidence that her drug use had been ongoing for twenty years).

2.         Failure to Adequately Protect or Supervise the Children 

The Department also contends that appellant=s failure to adequately protect or supervise her young children supported the trial court=s endangerment finding.  Before the children were first removed from the home, the Department received a report that appellant left her oldest child without adult supervision although he is disabled and lacks mental maturity to be left unattended.  The Department also received a report that appellant=s drug use impaired her ability to adequately monitor her children=s well-being.^[9]

In addition, the Department cites the incident which prompted the Department to initially remove the children from the home.  In particular, M.D.V.=s two-year-old sister wandered out of the home by herself and was found by two passers-by near the busy street.  They took the child to a security officer at a nearby mall who contacted the police.  Appellant testified that she noticed the child open the door to go outside and told her not to.  However, appellant did not immediately retrieve the child because she was tending to her son.  By the time she went outside to retrieve the child, she had already been picked up.  Appellant claims that the child was not gone very long.  However, she was gone long enough to be picked up by strangers, who fortunately were benevolent.

Further, during Carrie Coleman=s visits to the home, she observed appellant=s failure to supervise the children.  Of particular concern, Coleman once found appellant on the phone in the dining room, and M.D.V., who was less than two years old, in a bathtub full of water.  Appellant contends that there is no evidence demonstrating how long she left M.D.V. in the bathtub.  However, Coleman opined that she was placed in immediate danger in that situation.

Moreover, Coleman testified that one of appellant=s children would open the door and leave the home although Coleman advised appellant to place safety locks on the doors.^[10]  Coleman also testified that on one occasion, appellant went to her car to get M.D.V.=s cup and when she got home, M.D.V. had opened the door and was coming outside.  It is unclear whether M.D.V. is the same child who would leave the home as Coleman earlier described.  Nonetheless, Coleman expressed concern that at least one child would leave the home and that appellant left the children unattended.  Finally, Marie Halvatzis, a Child Advocates volunteer and M.D.V.=s guardian ad litem, also reported that once when she visited the home, she saw appellant walking across her courtyard.  When Halvatzis arrived at appellant=s apartment, only appellant and her baby were there, leading Halvatzis to believe she had left the baby unattended.

Again, appellant asserts that there is no evidence the children were actually endangered in these situations.  However, parental neglect can be as dangerous to the well‑being of a child as direct physical abuse. See In re M.C., 917 S.W.2d 268, 270 (Tex. 1996).  In particular, appellant=s conduct in leaving her young children unattended, allowing  one or more of them to leave the home, and leaving M.D.V. in a full bathtub could easily have resulted in tragedy.  Thus, the trial court could have formed a firm belief or conviction that appellant=s failure to protect or supervise her children jeopardized or exposed M.D.V. to loss or injury.  See id. (holding evidence mother=s two toddlers were found wandering a highway alone, toddlers were left alone in a car, baby was left home alone, family lived in extraordinarily unsanitary conditions, and mother was inattentive to children=s health issues supported endangerment finding although mother did not commit direct physical abuse).

In sum, after reviewing all the evidence, we conclude there is legally and factually sufficient evidence under the clear and convincing evidence standard to support the trial court=s finding that appellant engaged in conduct which endangered M.D.V.=s physical and emotional well-being pursuant to section 161.001(1)(E) of the Texas Family Code.  We overrule appellant=s first issue.

B.        Best Interest Of M.D.V.

In her second issue, appellant contends the evidence is legally and factually insufficient to support the trial court=s finding that termination is in M.D.V.=s best interest.  There is a strong presumption that preserving the parent‑child relationship is in the best interest of a child.  See In re J.I.T.P., 99 S.W.3d at 846 (citing Tex. Fam. Code Ann. '' 153.131(b), 153.191, and 153.252 (Vernon 2002)).  It is the Department=s burden to rebut this presumption.  Id. (citing Hall v. Harris County Child Welfare Unit, 533 S.W.2d 121, 122B23 (Tex. Civ. App.CHouston [14th Dist.] 1976, no writ)).  The Texas Supreme Court has compiled non-exclusive factors to consider when determining the best interest of a child including (1) the child=s desires, (2) the child=s emotional and physical needs 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 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.  Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976); see In re J.I.T.P., 99 S.W.3d at 846.  We will discuss several of these factors together because the evidence overlaps.

Emotional and physical danger to the child now and in the future; acts or omissions of the parent which may indicate the existing parent‑child relationship is not proper; and programs available to promote the best interest of the child

The trial court=s finding that termination is in M.D.V.=s best interest is supported primarily by appellant=s conduct which endangered M.D.V. and her resistance to changing that conduct.  See In re S.M.L.D., 150 S.W.3d at 759 (recognizing evidence offered to prove section 161.001(1) ground for termination is also relevant in determining if termination is in the child=s best interest).  Although appellant emphasizes that she is a loving parent and has not committed any overt acts of physical abuse, her purported concern is outweighed by the emotional and physical danger to the children caused by her drug use and failure to supervise them.  See In re U.P., 105 S.W.3d at 231 (recognizing evidence of drug use has been held legally sufficient to support finding that termination is in child=s best interest).  In particular, the fact that appellant resumed using marijuana shortly after M.D.V. was born marijuana-positive demonstrates her inability or unwillingness to consider the effect of her drug addiction on M.D.V.

Despite appellant=s past conduct, the Department attempted to work with her for almost two years, so she could keep her children.  However, there is significant  evidence that she did not substantially comply with the Department=s requirements and  programs.  As we have discussed, she relapsed after the children were returned to the home despite knowing that abstention was a condition for keeping them.  Further, the record contains evidence that she did not comply with the mandatory drug testing.  Thus, the trial court could question whether she would abstain from drug use in order to care for M.D.V.

Appellant asserts she is making efforts to control her addiction.  She testified that she had attended Narcotics Anonymous (ANA@) meetings for several months before trial.  However, some evidence negated her commitment to NA.  She admitted she began attending the meetings because the Department told her to, and she had not obtained a sponsor.  Kimberly Landry, the children=s current caseworker, testified appellant provided proof of having attended only a few meetings.  Further, although appellant previously completed NA=s Atwelve steps,@ she admitted she had recently fallen back to the first step.  In addition, appellant relapsed even after completing the drug treatment required by the Department.  Thus, the trial court could reasonably infer that participating in NA would not necessarily curb her drug use.

Moreover, appellant made no progress towards completing the program Coleman implemented after the children were returned to the home.  Coleman testified appellant was not home for the majority of their scheduled visits.  Appellant gave various excuses for missing their visits but could not confirm the excuses.  When Coleman was able to meet with appellant, she was angry, uncooperative, and inattentive and would Arant and rave@ about the Department.  In addition, Coleman testified that appellant did not follow her advice regarding child safety and supervision.  As we have discussed, the children were initially removed because M.D.V.=s sister left the home by herself.  Yet, a year and a half later, Coleman was still concerned about appellant=s allowing one or more of the children to leave the home. When Coleman tried to caution appellant about leaving the children unattended, appellant became Avery, very angry.@

Likewise, Marie Halvatzis reported that appellant failed to cooperate with the Department=s extensive attempts to work with her over a two-year period.  Even appellant=s sister agreed that appellant was difficult to work with and was not surprised she had not cooperated fully with the Department.  Appellant argues that the Department employees were hostile and belittled her.  However, as fact-finder, the trial court could believe that, instead, appellant resisted their efforts to work with her.  All three persons who attempted to work with appellantCColeman, Landry, and HalvatzisCultimately opined that her parental rights to M.D.V. should be terminated.  Therefore, the evidence weighs in favor of a finding that appellant would not likely change her conduct if M.D.V. was returned to her and, thus, would endanger M.D.V. in the future.

The child=s desires

The record also contains evidence on several other factors relevant to the Abest interest@ finding.  Because M.D.V. is a toddler, she cannot articulate her desires.  We note appellant has consistently visited her children twice a month while in the Department=s care and behaved appropriately during the visits.  Jessica DeLeon, appellant=s friend, testified that appellant has a bond with her children.  However, Kimberly Landry testified appellant=s bond with M.D.V. is not as strong as her bond with her older children because M.D.V. was merely four months old when initially removed from the home.  Even appellant=s sister agreed that M.D.V. has not been around appellant long enough to bond with her.  Therefore, the evidence that M.D.V. has not bonded strongly with appellant weighs in favor of the trial court=s finding.

The child=s emotional and physical needs now and in the future

The evidence demonstrates M.D.V. is in a Aloving, wholesome@ foster home that meets her physical and emotional needs.  She has adjusted well to the home, is welcomed by the foster parents= own children, and participates in church and community activities.  In contrast, there is evidence negating appellant=s ability to meet M.D.V.=s emotional and physical needs.  Specifically, the Department presented evidence that appellant was unwilling to secure stable employment although stable employment was a condition for keeping the children.

Appellant acknowledged she was not employed when the Department first took the children in April 2002 and had short-term, sporadic employment for the next two years.^[11]  Significantly, appellant did not seek employment when the children were returned to her in September 2003.  She claimed that she was physically unable to work after her youngest child=s birth although two months had passed since his birth and no doctor forbid her from working.  Regardless, appellant asserts she has now obtained employment sufficient to meet her children=s needs.  She testified that within two months before trial, she had begun cleaning apartments and working part-time at a cafeteria.  She explained that these jobs pay a total of approximately $1,200 per month, which is enough to pay her rent and buy the children=s food.  However, her obtaining these jobs within two months before trial does not establish stable employment, considering her failure to maintain employment for a substantial length of time.^[12]

In addition, Halvatzis=s report questioned appellant=s ability to meet her children=s immediate physical needs.  Halvatzis reported that at the time of trial, appellant=s three younger children were not toilet trained although one child was four-and-a-half years old.  Further, the report expressed the Department=s Aextreme concern@ that appellant sometimes asked M.D.V., a young toddler, to give the baby his bottle.  In sum, the evidence weighs in favor of a finding that appellant is not able to meet M.D.V.=s emotional and physical needs.

The plans for the child by the individuals or the agency seeking custody, and the stability of the home or proposed placement

Landry and Halvatzis both testified M.D.V. is adoptable.  Landry testified M.D.V.=s paternal grandmother is interested in adopting her, and the Department is willing to consider her.  Halvatzis believes M.D.V. should be adopted by her current foster parents, who are providing a stable home.  In any event, the evidence reflects that the Department will seek a permanent, adoptive home for M.D.V.

In contrast, some evidence negated appellant=s ability to provide a stable home.  Appellant emphasizes that she has lived in the same apartment for more than a year.  Regardless, the Department was concerned about her ability to maintain adequate housing when she had no stable job and the Department did not know who paid her rent.  Appellant testified her mother has paid her rent.  However, when Coleman previously asked how her mother paid the rent when her mother did not work, appellant then said that two men in her apartment complex pay her rent.  Coleman told appellant that arrangement was unacceptable because it was not guaranteed.

Appellant testified that she plans to support the children through her job and family, although this support was somewhat vague; she stated that her sister, aunts, and uncles Aget what the child needs.@  Appellant=s sister testified she was willing to be appointed managing conservator of the two younger children.  However, she has her own history with the Department based on drug use and had only recently formally offered to raise the children.  Appellant=s friend, Jessica Deleon, testified she would assist appellant in many ways.  However, she has her own three children to raise.  Further, although she did not condone appellant=s conduct, she seemed to explain it by emphasizing appellant did not use drugs in front of the children or give them drugs.  Consequently, the trial court could reasonably conclude appellant would not provide a stable home for M.D.V. because she relied on dubious other sources to pay her rent and provide for the children.^[13]

Any excuse for the acts or omissions of the parent

On the one hand, appellant acknowledged her drug addiction although she claimed it is in the past.  On the other hand, appellant did not acknowledge that her drug use harmed or endangered her children.  Instead, she stressed that she did not use drugs in front of the children.  Additionally, according to Halvatzis=s report, when the children were first removed, appellant stated she used marijuana to alleviate the stress of being solely responsible for several young children.  Further, appellant=s testimony indicates she blames others for some of her conduct; she blamed Turning Point for her failure to submit to random drug testing and blamed Coleman for her own uncooperative attitude.  Halvatzis confirmed that appellant has not taken responsibility for her role in the children being twice removed from her home.  Thus, appellant has not offered any excuses which provide reassurance her conduct would not continue if the children were returned to her.  Consequently, this factor does not weigh in appellant=s favor.

In sum, after weighing the evidence as it relates to the Holley factors, we conclude there is legally and factually sufficient clear and convincing evidence to support the trial court=s finding that termination of the parent‑child relationship is in M.D.V.=s best interest.  See In re S.M.L.D., 150 S.W.3d at 759B61 (holding evidence that mother=s drug use endangered child, she was unemployed for two years before trial, and she lacked stable home was legally and factually sufficient to support finding that termination was in child=s best interest despite conflicting evidence of mother=s commitment to abstention and evidence that she attended visitation and complied with some requirements for regaining custody).  We overrule appellant=s second issue.

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Substitute Memorandum Opinion filed October 27, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

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^[1]  Appellant=s youngest child was not yet born at that time.

^[2]  Appellant=s oldest child has a form of autism or mental retardation.

^[3]  This time, the Department also removed the youngest child, who had been born in the meantime.

^[4]  This appeal concerns M.D.V. only.  The order terminating appellant=s parental rights to her youngest child was interlocutory pending a trial concerning his father=s parental rights.  Appellant is now pursuing a separate appeal of that termination.  The cases concerning the two older children were severed.

^[5]  Although appellant challenges the trial court=s finding of Achild abuse,@ the trial court did not use the term Aabuse.@  Rather, the trial court=s order tracked the language of section 161.001(1)(E).  Thus, we will consider the sufficiency of the evidence with respect to the trial court=s finding as stated.

^[6]  Appellant testified that she had been using marijuana at least since the birth of her oldest child, who was almost ten years old at the time of trial.

^[7]  Appellant testified that she did not use marijuana while pregnant with her two older children, but she resumed using marijuana after their births.

^[8]  We question whether appellant has properly presented this complaint for appellate review because she raises no separate issue to challenge the admissibility of Stevens=s testimony.  See Tex. R. App. P. 38.1(e) (stating that appellant=s brief must state concisely all issues presented for review).  Instead, she buries most of her complaint regarding Stevens=s testimony in the AStatement of Facts@ portion of her brief although she briefly mentions this complaint in the AArgument@ portion of her brief.  Nonetheless, because appellant challenges the sufficiency of the evidence to support termination, we will consider her complaint regarding Stevens=s testimony.

^[9]  The record reflects that these referrals were closed and merged into the present case.

^[10]  According to appellant, Coleman was referring to the one, initial incident involving M.D.V.=s sister that prompted the Department to first take custody of the children and was not referring to ongoing behavior.  However, Coleman testified that she child-proofed the home and made recommendations on her first visit, but A[e]ach time I would make subsequent visits, I noticed that she did not adhere to the recommendations of the agency.  She had a child who would open the door and just leave the home.@  Because Coleman did not work with appellant until a year and a half after the initial incident, her testimony indicates she is referring to a different incident.  Further, Coleman=s testimony indicates that she is referring to more than one incident.

^[11] Appellant testified that during this period, she worked about two months as a security guard, but left due to her pregnancy.  She also worked short-term in an automobile detail shop, but left because business was slow.  In contrast, Coleman testified that she went to the detail shop, but it was open only once and appellant was not there.  Nevertheless, even if appellant did work at the detail shop, the work was short-term.

^[12]  In her brief, appellant asserts the Department did not assist her in securing employment, as required.  However, she does not cite any evidence which supports this contention.  Further, she states she had difficulty securing employment because she is an Aex-felon,@ but she does not cite any evidence of a criminal record.

^[13]  Coleman also expressed concern that during her visits, several different men were in appellant=s home.  Once, Coleman felt threatened because one man asked whether she was Ascared@ while another man was present.  She cautioned appellant about this Atraffic@ when a young girl lived in the home.  In contrast, appellant claimed she allowed only one man in her home; he was a close friend and no risk to the children.  However, the trial court could believe Coleman and conclude the presence of these men contributed to an unstable home, although their presence alone might not prove the home was unstable.