In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-15-00084-CV ____________________
IN THE INTEREST OF M.H. AND Z.H.
On Appeal from the 317th District Court Jefferson County, Texas Trial Cause No. C-219,416
MEMORANDUM OPINION
After a bench trial, the trial court entered an order that terminated the
parental rights of U.H. (Mother) as to her two minor children, M.H. (a five-year-
old girl) and Z.H. (a nineteen-month-old boy). 1 In the same order, the trial court
also terminated the parental rights of the fathers of the children. Mother appeals the
termination, raising four issues. 2 We affirm.
1 We identify the minor children and Mother by initials. See Tex. R. App. P. 9.8. 2 No appeal was filed on behalf of the fathers. Therefore, we discuss the facts as to the fathers only where necessary to our review regarding Mother. 1 UNDERLYING FACTS
At the time of trial, Mother was twenty-six years old and not married. The
State was unable to locate the man thought to be M.H.’s father, and Z.H.’s father is
unknown. The evidence presented at trial established that Mother has a history of
mental health problems, including incidents of self-harm or attempted suicide.
M.H. was born in February of 2009, and she was five years old at the time of
trial. M.H. was born premature, but the record does not reflect that M.H. has had
any significant medical or developmental issues. Z.H. was born in June of 2013,
and he was about nineteen months old at the time of trial. Z.H. was born several
months premature, and the record establishes that he has developmental delays as
well as brain damage. An MRI revealed that Z.H. suffered a stroke at birth. He has
other health related problems regarding eating, eyesight, movement, and urology.
INITIAL REMOVAL AND PETITION FOR CONSERVATORSHIP AND TERMINATION
In October of 2013, the Texas Department of Family and Protective Services
(the Department) filed an Original Petition for Protection of a Child, for
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship supported by an Affidavit for Emergency Removal dated October 11,
2013, pertaining to both M.H. and Z.H. The affidavit stated that the Department
had received two reports alleging neglectful supervision of Z.H. by Mother, that
2 Mother did not have enough formula for Z.H., that Mother had missed two of
Z.H.’s doctor’s appointments and had not rescheduled them, that Z.H. had been
admitted to a medical center for a breathing difficulty due to Mother feeding him
improperly, and that Mother was co-sleeping with Z.H. The affidavit stated that
Z.H. is a special needs child because he was born premature, that he “is medically
fragile and in need of structured care[,]” and that “[h]ospital staff feels [Mother]
cannot properly meet his needs at this time.”
The affidavit also stated that Mother “refuses to take her mental health
medications[,]” admitted to having suicidal ideations, and was in an abusive
relationship with Z.H.’s father. It further alleged that M.H. was not in Mother’s
care because Mother had given M.H. to the child’s godmother and further that
Mother is unable to care for M.H. due to Mother’s “mental state.”
On October 24, 2013, the trial court entered a Temporary Order Following
an Adversary Hearing, wherein the trial court included certain findings and a
notice to Mother as follows:
The Court finds and hereby notifies the parents that each of the actions required of them below are necessary to obtain the return of the subject child(ren), and failure to fully comply with these orders may result in the restriction or termination of parental rights.
3 The Department formulated a Family Service Plan for Mother. Thereafter,
on December 5, 2013, the trial court issued a Status Hearing Order, requiring
Mother to comply with the terms of her service plan and setting a date for the final
hearing. On October 30, 2014, a Permanency Hearing Order was entered by the
trial court following a permanency hearing, and setting the final hearing. A bench
trial was held on February 12, 2015.
TESTIMONY OF CASEWORKER ASSIGNED AFTER REMOVAL
Eva Blanchard (Blanchard), the Child Protective Services (CPS) caseworker
in charge of the case, testified at trial. According to Blanchard, at the time of the
hearing, M.H. was in a fictive relative home and Z.H. was in a foster home.
Blanchard explained that, before the case began, M.H. was placed with Ms. G, a
fictive relative, because Mother was having trouble taking care of M.H., Mother’s
mother was very sick, and Mother asked Ms. G to help take care of M.H.
Blanchard testified that Mother told her that it is sometimes difficult for Mother to
take care of M.H. because Mother has a seizure disorder and is prone to
depression.
Blanchard testified that Z.H. was born twenty-five weeks premature, with
brain damage and parts of his body not properly developed, and he required
surgery for a urological issue. Z.H. is “a difficult feeder” and is delayed in his
4 speech and movement. Blanchard explained that Z.H. has “multiple doctors” at
Texas Children’s Hospital in Houston and “multiple therapy appointments.”
Blanchard explained to the court that early in the case CPS suspected that
Mother was not feeding Z.H. properly, and at one point, Z.H. was taken to the
hospital because “he had stopped breathing due to being laid on his back at
feeding.” Blanchard also testified that CPS had gotten a report that Mother had
missed a doctor’s appointment for Z.H. CPS determined that Mother was co-
sleeping with Z.H., and Z.H. was not sleeping in the playpen that CPS had given to
Mother. Blanchard testified that Mother had not done anything throughout the case
to educate herself on how to take care of Z.H.’s needs, and Blanchard did not
believe Mother would be able to keep up with all of Z.H.’s appointments.
Blanchard further explained that she had concerns about Mother’s mental
health and did not think Mother had understood the information CPS was giving
her. Blanchard testified that Mother has a seizure disorder, and Mother did not
seem to understand the connection between taking care of herself and taking care
of her children. Blanchard was also concerned because Mother had three suicide
attempts, one of which occurred when Mother was pregnant with Z.H., and
Mother’s first suicide attempt included cutting her wrists. According to Blanchard:
5 [Mother’s] functioning with the children is she’s high risk. She doesn’t understand how to speak to them and that they are not adults. She will put them in risky situations. It’s what the psychological states that she’s a high risk parent, that she would do things that would be risky for her children.
Blanchard testified that she felt that Mother knowingly placed or knowingly
allowed Z.H. to remain in a condition where his physical or emotional well-being
was in danger, but Mother had not done so with M.H. because M.H. was with other
caregivers.
Blanchard stated that, early in the case, Mother “bounced” from home to
home and stayed with various people, but at the time of the trial, Mother had found
an apartment. Blanchard testified that there had been several police reports
regarding domestic violence when Mother was living with D.S., the man first
thought to be Z.H.’s father. Blanchard stated Mother never reported that D.S. had
physically injured her, but Mother was afraid of him, and Mother told Blanchard
that D.S. “would come at her and try and hit her and she would have to defend
herself.”
Blanchard testified that Mother had maintained contact with Blanchard
throughout the case, had completed parenting classes, had undergone a
psychological examination, had attended all family visits, had complied with all
drug tests, and had never tested positive on any of the drug tests. However, 6 Blanchard explained that Mother did not complete all of the required counseling
sessions. Blanchard also noted that Mother had not brought Mother’s medications
to the CPS office as requested, so Blanchard was not able to count the medication
to verify whether Mother was taking all required medications.
CPS had asked Mother for names of relatives who could help her with the
children so she would not lose conservatorship, but Blanchard agreed that the
people Mother suggested were “obviously not appropriate or able to take care of
children[.]” Blanchard explained that termination was a better option than
transferring conservatorship because “[w]e don’t have family to transfer
conservatorship to.” Blanchard further testified that M.H. had been with her
godparent, Ms. G, since February of 2013, and further that Ms. G was interested in
adopting M.H. Blanchard also testified that Z.H.’s foster parents had made sure he
made it to all of his appointments and therapy. According to Blanchard, Z.H.’s
foster parents want to adopt Z.H.
The report from the Court Appointed Special Advocate (CASA) was
admitted into evidence during the trial. According to the CASA advocate’s report,
the CASA recommended termination of all parental rights as being in the best
interest of the children. The CASA reported that Mother had been diagnosed with
bi-polar and seizure disorders and that Mother had reported having suicidal
7 thoughts. According to the CASA report, when the CASA visited Mother’s two
bedroom apartment, it was “neatly kept,” with two small beds in one bedroom. The
CASA noted that Dr. Coxe had examined Mother and recommended that Mother
“undergo a thorough psychiatric examination” and that “[Mother] is clearly a high
risk parent.” The CASA advocate also noted that on December 2, 2014, Mother
advised the CASA that she had recently obtained seizure medication; however, the
CASA was unable to verify the information, and “[Mother] did not follow the
recommendation of Dr. Coxe to seek a psychiatric evaluation.” On December 9,
2014, the CASA and a CPS caseworker attempted to complete an unannounced
home visit. Neighbors reported that Mother was on the property at the apartment
complex, but after visiting four different apartments, CASA was unable to locate
Mother. CASA and the CPS worker were able to verify that Mother’s paramour,
D.S., lives in the same complex and has his own apartment. Later, CASA
attempted another unannounced home visit in order to determine if in fact Mother
was taking her seizure medications, if her medications had changed, and the name
of the doctor that prescribed the medications. Prior attempts to verify Mother’s
physician were not possible as the CASA determined that the name of the
physician provided by Mother did not exist in the state of Texas. Mother was not at
home at the time of the visit, so CASA attempted to locate Mother at D.S.’s
8 apartment. D.S. did not initially answer the door. Later, D.S. told CASA in the
parking lot that he and Mother were no longer together but he would contact
Mother and let her know the CASA had been there. On the way back to the office,
Mother called the CASA via a cell phone and advised she was working. Mother
also told the CASA she was still engaged to D.S., the opposite of the information
D.S. had provided to the CASA.
MENTAL HEALTH AND THERAPY RECORDS
Medical records affidavits and documents relating to Mother were admitted
into evidence, including records from Ray Coxe, PhD, and Georgia (Ann)
Williams, Med LPC. Mother’s attorney also introduced a letter from Sean E.
Franklin, D. Min., LPC.
Dr. Coxe’s evaluation was dated January 15, 2014, and reported that Mother
takes medication for grand mal seizures and her most recent seizure was during her
last pregnancy. Coxe noted that Mother had been diagnosed with “Bipolar
Disorder” in the past. According to Dr. Coxe:
She has had several incidents of self-harm including slitting her wrists, taking pills, and putting a radio in the bath tub. Her first incident was when she was fifteen, the second time when she was pregnant with her son and admitted herself into a hospital. Her most recent attempt was in March 2013. She reports that she experience[d] postpartum depression following the births of her children.
9 Coxe stated in his report that Mother’s responses to the Rorschach Inkblot Measure
showed “significant psychological disturbance involving thinking, depression, and
anxiety, as well as a risk of self-harm,” “poor reality testing,” and “somewhat
distorted thinking[.]” Coxe recommended she undergo a thorough psychiatric
examination, parenting classes, and counseling, and he concluded “[t]his is clearly
a high risk parent whose resources to effectively manage a special needs child are
very limited.” The evaluation report also noted that Mother had given up her
apartment to care for her mother, who has since died, and Mother was living with
her sister, and waiting for financial aid to get an apartment.
According to the therapy records from Ann Williams, Mother attended only
six of the approved twelve therapy sessions. In the therapy, the goals were to
address issues of domestic violence, self-esteem, parenting, and symptoms of
bipolar disorder. In one of the sessions that occurred on January 22, 2014, Mother
reported to Williams that Mother “allowed her son to sleep on her chest,
expressing the hospital spoiled him by holding him too long.” During another
therapy session, Mother reported to Williams that she was no longer in a
relationship with Z.H.’s father, and they discussed her “pattern of selecting
boyfriends.” In the therapy progress reports, Williams noted that Mother had
ongoing problems with the man first thought to be Z.H.’s father, including being
10 fearful of him and having a restraining order against him. Williams’ final report
states “[t]herapist has not heard from [Mother] since 4-23-14 when she called to
cancel her appointment. Therapist would not recommend placement of the children
back into the home due to [Mother] repeatedly placing herself in harmful
situations.”
TESTIMONY OF MOTHER
Mother testified that she has had mental health problems and thoughts of
suicide since she was fifteen years old. She testified that the reason why she had
mental health problems was that she had been raped by her father. Mother agreed
that she had one suicide attempt when she had possession of the children, and she
described that suicide attempt as an incident where she “took a whole bunch of
vitamins.” She also said she committed herself to the hospital in 2012, because she
had thoughts of suicide, but she denied she was pregnant at that time. Mother
agreed she had a suicide attempt while she was pregnant with Z.H., but she
testified that she stopped herself and called an ambulance. Mother stated she had
applied for Social Security disability benefits based on her “seizures, the bipolar
ness [sic], the thoughts of suicide, the anxiety, basically all my emotional and
mental problems.” She also testified that she had been prescribed Trazodone,
Seroquel, and Depakote.
11 According to Mother, she was diagnosed with “epilepsy hormone seizures.”
At trial, she stated that the last seizure she had was when she was pregnant with
Z.H. Mother said that she does not feel that her seizures prevented her from caring
for her children because she could tell when a seizure was coming on and she had
people who check on her. She also described having “real bad headaches[,]” that
would leave her feeling numb and cause her to black out, but she testified that she
had not had such an episode since she was nineteen years old.
At trial, Mother testified she was living in an apartment with working
utilities, and that she had lived at that location for almost two years. She explained
that one time her lights “got turned off[,]” and she then went to stay with her
mother, but she returned to her apartment when she got the money to “turn the
lights on[.]” She denied living “in several different places[,]” but she also agreed
that she had lived with her mother and her sister, and on nights when she attended
parenting classes, she would stay with friends. Mother denied ever reporting any
domestic abuse by D.S. and testified that she no longer was in a relationship with
him. The State cross-examined Mother about certain photos from Mother’s
Facebook page indicating that a few days before the trial Mother continued to post
photos of herself with D.S. on Mother’s Facebook page.
12 Mother testified that M.H. went to live with Ms. G, “but not stay there[,]”
and Mother explained that “I gave her [to Ms. G] because I couldn’t provide what
she needed. I could have provided food, but I couldn’t provide for the bills.” She
explained that Ms. G helped her out with M.H. at a time when Mother was trying
to find a job. Mother testified that she got food stamps, which she believed was
sufficient to provide her children with food and clothing. In her testimony, Mother
said she had a job ringing the bell for Salvation Army. In her intake form for
counseling with Williams, she reported she worked for McDonald’s as a cashier,
but a later counseling report recited that Mother had quit her job with McDonald’s.
Mother also testified that she never had transportation and that she “barely had bus
fare money.” She said she missed one of Z.H.’s doctor’s appointment “due to
transportation[,]” and she missed another of his appointments because her mother
forgot to remind her. She also testified that she missed one of her own
appointments for medication because she didn’t have transportation.
Mother also testified that she did not learn anything about Z.H.’s medical
issues when he was in the hospital except about his eyesight and that the hospital
did not inform her that Z.H. had any other problems. Thereafter, Mother explained
that, when Z.H. was in the neonatal intensive care, “I get there after their rounds
when I talk to [a nurse] and ask her how he’s doing. Well, he’s doing good, he’s
13 fine, this and that. Only problem we had was him breathing on his own.” She
stated at trial that “I’m just finding out today what’s going on with him.” Mother
admitted that Z.H. had slept in the bed with her, but Mother testified that she slept
on the edge of the bed so that she would roll forward and not roll onto Z.H.
According to Mother, the hospital had never given her instructions regarding
Z.H.’s problems with reflux.
Mother felt like she had completed her service plan. Mother testified that she
completed parenting classes, submitted to drug screens, and she had an apartment
with working utilities where she had been living for about a year and a half.
Mother admitted that she only went to six counseling sessions with Williams, but
according to Mother, she stopped attending the sessions because “Eva Blanchard
told [her] to stop going.” Mother testified that after she missed a session with
Williams, Mother called Williams but never got a response. Mother told the court
that when she told Blanchard she could not make an appointment with Williams
that Blanchard told Mother “don’t worry about it. You don’t have to go no more.”
Mother denied understanding that the counseling sessions were a significant part of
her service plan and that missing six sessions meant that the State would proceed
with termination. She agreed at trial that she had not received medications or
therapy since her last contact with Williams in April 2014.
14 FINAL ORDER OF TERMINATION
After the bench trial, the trial court signed a final order of termination on
February 12, 2015, naming the Department as permanent managing conservator of
the children, and terminating Mother’s parental rights to both children. In addition
to finding that termination of Mother’s parental rights was in the children’s best
interest, the trial court found that Mother (1) knowingly placed or knowingly
allowed the children to remain in conditions or surroundings that endangered the
physical or emotional well-being of the children; (2) engaged in conduct or
knowingly placed the children with persons who engaged in conduct that
endangered the children’s physical or emotional well-being; and (3) failed to
comply with the provisions of the court-ordered service plan. See Tex. Fam. Code
Ann. § 161.001(1)(D), (E), (O), (2) (West 2014).
ISSUES ON APPEAL
In four appellate issues, Mother challenges the trial court’s termination of
her parental rights. Mother asserts that the evidence was legally and factually
insufficient to support the trial court’s findings that (1) termination was in the best
interest of M.H. and Z.H.; (2) Mother knowingly placed or allowed M.H. and Z.H.
to remain in conditions or surroundings that endangered their physical or emotional
well-being; (3) Mother engaged in conduct or knowingly placed M.H. and Z.H.
15 with persons who engaged in conduct that endangered the children’s physical or
emotional well-being; and (4) Mother failed to comply with the provisions of a
court order that specifically established the actions necessary for her to obtain the
return of her children.
STANDARD OF REVIEW IN PARENT-CHILD TERMINATION CASES
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the Texas Family Code, parental rights can be terminated upon
proof by clear and convincing evidence that the parent has committed an act
prohibited by section 161.001(1) of the Family Code, and termination is in the best
interest of the child. See Tex. Fam. Code Ann. § 161.001(1), (2); In re J.O.A., 283
S.W.3d 336, 344 (Tex. 2009); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). “Clear
and convincing evidence” means “the measure or degree of proof that will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West
2014).
In reviewing the legal sufficiency of the evidence in a parental termination
case, we must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable factfinder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C.,
16 96 S.W.3d at 266. We assume the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so, and we disregard all evidence that a
reasonable factfinder could have disbelieved. In re J.O.A., 283 S.W.3d at 344; In
re J.F.C., 96 S.W.3d at 266. We “give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing.” In re J.F.C.,
96 S.W.3d at 266. We must determine “‘whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction about the truth of the
State’s allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “If, in
light of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient.” Id. We give due deference to the factfinder’s findings and we cannot
substitute our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006). The factfinder is the sole arbiter when assessing the
credibility and demeanor of the witnesses. See id. at 109.
STATUTORY GROUNDS FOR TERMINATION
In her fourth issue, Mother challenges the sufficiency of the evidence that
she failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain the return of the children who
17 have been in the temporary managing conservatorship of the Department for at
least nine months as a result of the children’s removal due to parental abuse or
neglect. See Tex. Fam. Code Ann. § 161.001(1)(O). Courts have generally applied
subsection (O) strictly. See In re D.N., 405 S.W.3d 863, 877 (Tex. App.—Amarillo
2013, no pet.). Subsection (O) makes no provision for excuses for a parent’s failure
to comply or for partial compliance with the court-ordered service plan. See id.; In
re T.N.F., 205 S.W.3d 625, 631 (Tex. App.—Waco 2006, pet. denied).
In the Temporary Order Following Adversary Hearing signed on October
24, 2013, the trial court ordered Mother to “attend counseling sessions to address
the specific issues that led to the removal of the child(ren) from the home” and “to
comply with each requirement set out in the Department’s original, or any
amended, service plan during the pendency of this suit.” In the Status Hearing
Order signed on December 5, 2013, the trial court made the service plan an order
of the court. Blanchard testified that the service plan was created in late 2013.
Mother admitted that she received the service plan October 2013. The service plan
required Mother to obtain and maintain appropriate and safe housing for herself
and her children, to maintain contact with the Department, to notify the
Department of any changes in her contact information, to complete parenting
classes, to attend individual counseling, to obtain a full psychological evaluation,
18 to cooperate with random drug screens, and to attend scheduled family visits or to
notify the Department in advance if unable to attend. The service plan required
Mother to attend therapy with Williams twice a month, and it expressly provided
that “Williams will inform [Mother] when her counseling goals have been
[successfully] completed.”
Blanchard testified that Mother was compliant with her service plan as to
housing, that she had maintained contact with Blanchard throughout the case, that
Mother did not miss her visitation with the children, that Mother completed
parenting classes, that Mother submitted to random drug tests, and that Mother had
a psychological evaluation with Dr. Coxe. However, Blanchard was unable to
verify whether Mother was taking the medications that Dr. Coxe recommended,
and furthermore Mother failed to complete her counseling sessions. Blanchard
further explained to the court that she told Mother she needed to complete
counseling with Williams. Williams’ Therapy Progress Reports regarding her
counseling sessions with Mother were admitted into evidence. These reports show
that Mother attended only six of the twelve approved sessions between January and
April of 2014. Williams’ report in July of 2014 stated that “[t]herapist has not
heard from [Mother] since 4-23-14 when she called to cancel her appointment[]”
and that six counseling units remained of the twelve that were authorized.
19 Mother testified that she felt as though she had completed her service plan
because she completed parenting classes, complied with drug testing, and she
believed she had stable housing. She testified that the reason she attended only six
counseling sessions with Williams was that “Eva Blanchard told [her] to stop
going.” Mother also explained her failure to continue with Williams was that
Mother never heard back from Williams after Mother called Williams after having
missed a session.
In her appellate brief, Mother concedes that she was unable to complete all
counseling sessions with Williams, but Mother contends that she was never told
she needed to complete twelve sessions. Mother’s court-ordered service plan
required her to attend counseling sessions with Williams until Williams informed
her that she had completed her goals. Blanchard’s testimony, along with Williams’
counseling reports, and the testimony from Mother establish that Mother failed to
complete the counseling sessions.
Subsection 161.001(1)(O) “looks only for a parent’s failure to comply with a
court order, without reference to [the] quantity of failure or degree of compliance.”
In re D.N., 405 S.W.3d at 877. The evidence was undisputed, as detailed above,
that Mother failed to complete the services that were required by her family service
plan and ordered by the trial court. While the mother made a number of excuses for
20 her failure to complete the services, section 161.001(1)(O) does not require the
court to consider excuses for a parent’s failure to comply with the court-ordered
services. See In re J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.).
Viewing the evidence in the light most favorable to the trial court’s finding under
subsection 161.001(1)(O), we conclude that the trial court reasonably could have
formed a firm belief or conviction that Mother failed to comply with the provisions
of a court order that specifically established the actions necessary for her to obtain
the return of M.H. and Z.H. See Tex. Fam. Code Ann. § 161.001(1)(O); see also In
re T.T., 228 S.W.3d 312, 319-21, 326 (Tex. App.—Houston [14th Dist.] 2007, pet.
denied) (affirming termination where the mother failed to comply with some of the
requirements of the plan); In re C.D.B., 218 S.W.3d 308, 311-12 (Tex. App.—
Dallas 2007, no pet.) (affirming termination based on the mother’s partial
compliance with service plan). Accordingly, we conclude that the trial court’s
finding with regard to subsection 161.001(1)(O) is supported by legally and
factually sufficient evidence. We overrule Mother’s fourth issue.
BEST INTERESTS OF THE CHILDREN
Mother’s first issue challenges the sufficiency of the evidence supporting the
finding that termination of Mother’s parental rights is in the children’s best
interest. Mother argues that she loves her children, that there is no testimony
21 showing that she abused or neglected her children, and that she provided clothing
and gifts to the children. She further argues that she “has had a rough life” and
“needs more help to overcome her problems[.]” The State argues that the trial court
could have concluded that Mother would be unable to meet her children’s
emotional and physical needs given Mother’s history of mental health problems,
suicide attempts, and reports of domestic violence. The State also argues that the
evidence at trial showed that Mother has poor judgment regarding care for herself
and for her children.
Trial courts have wide latitude in determining a child’s best interest. See
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The Texas Supreme Court
has recognized a non-exhaustive list of factors that are pertinent to the inquiry of
whether termination of parental rights is in the best interest of the child: (1) the
desires of the child, (2) the emotional and physical needs of the child now and in
the future, (3) the emotional and physical danger to the child now and in the future,
(4) the parental abilities of the individuals seeking custody, (5) 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 a proper one, and (9) any
22 excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d
367, 371-72 (Tex. 1976) (setting forth the “Holley factors”); see also Tex. Fam.
Code Ann. § 263.307 (West 2014).
No particular Holley factor is controlling, and evidence of one factor may be
sufficient to support a finding that termination is in the child’s best interest. See In
re A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.). In examining the
best interest of the child, we may consider evidence that was also probative of the
predicate act or omission. See In re C.H., 89 S.W.3d at 28. The best interest
determination may rely on direct or circumstantial evidence, subjective facts, and
the totality of the evidence. See In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—
Amarillo 2011, no pet.). If, in light of the entire record, no reasonable factfinder
could form a firm belief or conviction that termination was in M.H.’s and Z.H.’s
best interest, then we must conclude that the evidence is legally insufficient. See In
re J.F.C., 96 S.W.3d at 266.
Mother admitted at trial that she has a history of seizures, suicidal thoughts
and suicide attempts, and mental health problems. She has been diagnosed with
bipolar disorder, and she has been on different medications. Mother’s most recent
seizure was when she was pregnant with Z.H.
23 The CPS caseworker testified that Mother had made reports of domestic
violence against the man thought to be Z.H.’s father. Mother’s therapist, Georgia
(Ann) Williams, noted in her counseling reports that she would not recommend
placing M.H. and Z.H. back with Mother due to Mother “repeatedly placing herself
in harmful situations.” Mother has lived with her mother, with her sister, and has
stayed with friends, and admits that at least one time Mother was unable to pay her
light bill. Mother also admits she lacks transportation, which she says has caused
her to miss a doctor’s appointment for Z.H. and prevented her from getting her
own medication. Mother believes that food stamps will be adequate for her to
provide food and clothing for her children as well as “anything else they may
need[.]” She says her young daughter “is there to comfort [her]” when Mother has
problems, and Dr. Coxe reported that Mother has “a tendency to treat [her]
children as a confidant [sic] and peers[.]”
The evidence shows that Z.H. has serious medical issues due to having been
born premature, including difficulty with feeding, a urological issue, and delays in
speech and movement. An MRI revealed that he had a stroke at birth and that he
had brain damage associated with memory problems. He has frequent
appointments and takes multiple medications. The CPS caseworker testified that
Mother had done nothing to educate herself on how to take care of Z.H., and
24 Mother testified at trial that she was just learning about Z.H.’s health problems
during the trial. The psychological evaluation by Dr. Coxe stated that Mother’s
“resources to effectively manage a special needs child are very limited.” Z.H. had
been removed from Mother due to abuse or neglect, he had been in the care of the
Department and foster parents for many months, and his foster parents wanted to
adopt him.
M.H. was already living with Ms. G and not with Mother when CPS first
received the report of medical neglect in October of 2013. Mother testified that she
sought help with M.H. from Ms. G because Mother was trying to find a job.
Although Mother denied giving M.H. to Ms. G, Mother stated that Ms. G
“basically . . . helped for major stuff.” Mother also testified that M.H. “went to go
live there [with Ms. G] but not stay there. She went to go visit, like, every
weekend; and then it came to days, then it came to, like, months, and then all this
happened.” Mother agreed that she gave M.H. to Ms. G because Mother could not
provide what M.H. needed. The CPS caseworker testified that M.H. began living
with Ms. G before the current case began, that M.H. was with Ms. G at the time of
trial, and that Ms. G was interested in adopting M.H. Mother agreed that M.H. was
doing well with Ms. G.
25 The trial court could have concluded from the evidence that Mother lacked
the ability and resources to meet the emotional and physical needs of her children
now and in the future and that her home lacked sufficient stability to care for her
children. Mother also recognized her own inability to care for M.H. and voluntarily
left M.H. with Ms. G prior to the birth of Z.H. 3 Z.H. was removed from Mother’s
care due to medical neglect. The trial court could have resolved any inconsistencies
in the evidence by believing the testimony of the CPS caseworker and reports by
CASA, Coxe, and Williams and disbelieving Mother’s testimony. See McGalliard
v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Considering the Holley factors
against the evidence at trial, we conclude the trial court could reasonably have
formed a firm belief or conviction that termination of Mother’s parent-child
relationship with M.H. and Z.H. is in the children’s best interest and that the
evidence to the contrary is not so significant that a factfinder could not reasonably
form a firm belief or conviction that termination is in M.H.’s and Z.H.’s best
interest. See Tex. Fam. Code Ann. § 263.307(b); Holley, 544 S.W.2d at 371-72.
3 See Tex. Fam. Code Ann. § 161.001(1)(B) (a court may order termination of the parent-child relationship if clear and convincing evidence shows the parent voluntarily left the child in another’s possession, the parent expressed no intent to return, the parent did not provide adequate support of the child, and the parent remained away for at least three months). 26 We conclude that the evidence at trial is legally and factually sufficient to support
the trial court’s finding. We overrule Mother’s first issue.
Having determined that the evidence is legally and factually sufficient to
support the trial court’s finding that Mother failed to comply with the court-
ordered plan and that the evidence is legally and factually sufficient to support the
trial court’s finding that termination is in the best interest of both children, we need
not address Mother’s second and third issues relating to the trial court’s findings
pertaining to other grounds for termination. See Tex. R. App. P. 47.1 (requiring the
appellate court to issue written opinions that are as brief as practicable but that
address all issues necessary to a final disposition of the case being appealed); see
also In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“Only one predicate finding
under section 161.001(1) is necessary to support a judgment of termination when
there is also a finding that termination is in the child’s best interest.”).
We affirm the trial court’s judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice Submitted on June 2, 2015 Opinion Delivered August 13, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.