In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00022-CV ____________________
IN THE INTEREST OF R.M.
_______________________________________________________ ______________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 14-10-11283-CV ________________________________________________________ _____________
MEMORANDUM OPINION
After a bench trial, the trial court entered an order terminating the parental
rights of L.B. to her child, R.M., a ten-year-old boy.1 L.B. appeals the termination,
raising two issues. We affirm.
1 We use initials to protect the identity of the child. See Tex. R. App. P. 9.8. Other family members and witnesses are also identified, as necessary, with initials and designations based on their respective relationship with the child. See Tex. Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8. 1 PROCEDURAL BACKGROUND
On October 14, 2014, when R.M. was seven years old, the Department of
Family and Protective Services (the Department) filed an “Original Petition for
Protection of a Child, for Conservatorship, and for Termination in [a] Suit
Affecting the Parent-Child Relationship” (the petition). In the petition, the
Department requested that the trial court appoint the Department as R.M.’s
temporary managing conservator because “allowing the child to remain in the
home would be contrary to the child’s welfare.” The Department also requested
that the trial court appoint the Department as R.M.’s permanent sole managing
conservator if R.M. could not be reunified with either parent or permanently placed
with a relative or other suitable person for placement, and that L.B.’s parental
rights (and R.M.’s unknown father’s rights) be terminated if reunification could not
be achieved. The petition alleged the appointment of one of R.M.’s parents as
permanent managing conservator would not be in R.M.’s best interest because it
“would significantly impair the child’s physical health or emotional development.”
The petition was supported by a sworn and notarized affidavit of a Department
representative, wherein the representative described the circumstances
necessitating removal.
2 According to the affidavit, the Department received a report on September
27, 2014, that seven-year-old R.M.2 “was placed in a situation of immediate
harm[]” when his mother, L.B., “was extremely intoxicated, and got into a physical
altercation with a friend.” The affidavit alleged that L.B. “was reported to have
been taken to a hospital by EMS as a result of her level of intoxication.” The
representative of the Department explained in the affidavit that he met with L.B. at
Conroe Regional Hospital on September 27, 2014, and she was “observed to be
under the influence of an unknown substance[,]” would “change emotions
extremely quickly,” was “unable to carry a conversation as a result[,]” and was
“contorting her body in an abnormal manner.” The Department representative
noted that the hospital staff reported that L.B. did not take a drug screening at that
time. According to the affidavit, the Department representative made contact with
a Montgomery County Sheriff’s Deputy, who reported that he had been contacted
about an altercation with L.B., that L.B. was heavily intoxicated under an unknown
substance, and that L.B. had been taken to the hospital. The affidavit states that the
Department secured placement for R.M. with a “family friend[,] [R.W.]”
The Department representative noted in the affidavit that he met with L.B. at
her residence on September 28, 2014, and L.B. “was in a very agitated mood,”
2 The affidavit stated that R.M. has Down syndrome. 3 “behaved in an erratic manner[,]” and spoke to the Department representative “for
approximately five minutes prior to kicking [him] out of her home.” The affidavit
alleged that L.B. contacted the Department representative on October 1, 2014, and
made arrangements to meet him at the local CPS office. At the meeting, L.B.
denied being under the influence of drugs (with the exception of her prescription
medications) on the night of the altercation and claimed that a friend had assaulted
her. L.B. also denied any illegal drug use or mental illness, but reported past
cocaine use and “side effects” from a motorcycle accident when she was a
teenager. According to the affidavit, L.B. reported she went to the hospital as a
result of the assault and not because she was intoxicated.
The Department representative noted in the affidavit that L.B. showed him
prescriptions for “Lunesta which she takes to help her sleep, Quetiapine which she
takes for Bi-Polar, Lamotrigine for mood disorder, Traz[o]done for sleep,
Mirtazapine for depression, Hydroxyzine for anxiety, and Fluoxetine for
depression[,]” but L.B. could not provide proof of prescriptions for the pain
medication and muscle relaxers that L.B. had reported taking for neck and back
pain. According to the affidavit, L.B. agreed to submit to a urinary analysis and
hair follicle drug screening by October 3, 2014. On October 13, 2014, the
Department representative received the results which showed L.B. tested negative
4 on the urinary analysis but tested positive for methamphetamines on her hair
follicle. The Department representative noted that “[t]he biological father for
[R.M.] is unknown at this time[,]” and the Department representative concluded, in
part, the following:
[L.B.] placed the child at risk of immediate harm from being heavily intoxicated by an unknown substance while caring for [R.M.]. [L.B.] tested positive for methamphetamines on a hair follicle drug screening. [L.B.] has had extensive CPS involvement . . . including multiple removals of her children. The prior CPS history has included cocaine use, and abuse o[f] prescription medications. It is believed to be in the best interest of the child, [R.M.], for the Department . . . to be granted Temporary Managing Conservatorship of [R.M.] . . .
The affidavit also listed L.B.’s CPS history, which included several allegations of
neglectful supervision of her children dating back to 1989, as well as criminal
convictions in 1999 for driving while license suspended and in 2005 for assault
causing bodily injury to a family member.
After a show cause hearing on October 27, 2014, the trial court entered an
order finding that allowing R.M. to remain in L.B.’s home would be contrary to
R.M.’s welfare and that it would not be in R.M.’s best interest to appoint R.M.’s
parents as managing conservators because it would significantly impair R.M.’s
physical health or emotional development. The trial court named the Department
as R.M.’s temporary managing conservator. The trial court ordered L.B. to comply
with a Service Plan, which required her to, among other things, complete a 5 psychological evaluation, maintain employment, complete a drug and alcohol
evaluation, complete parenting classes, participate in random drug testing, and
attend individual counseling.
After a bench trial, the trial court signed a final order of termination on
January 25, 2016, naming the Department as permanent managing conservator of
R.M. and terminating L.B.’s parental rights to R.M. In addition to finding by clear
and convincing evidence that termination of L.B.’s parental rights was in R.M.’s
best interest, the trial court found by clear and convincing evidence that (1) L.B.
had knowingly placed or knowingly allowed R.M. to remain in conditions or
surroundings that endanger his physical or emotional well-being; (2) L.B. had
engaged in conduct or knowingly placed R.M. with persons who engaged in
conduct that endangers R.M.’s physical or emotional well-being; and (3) L.B. had
her parent-child relationship terminated with respect to another child based on a
finding that L.B.’s conduct was in violation of Paragraph (D) or (E) of section
161.001(b)(1) of the Texas Family Code or substantially equivalent provisions of
the law of another state. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (M)
and (b)(2) (West Supp. 2015).3 L.B. appealed.
3 Section 161.001 of the Texas Family Code was amended in 2015. See Act of Mar. 30, 2015, 84th Leg., R.S., ch. 1, § 1.078, sec. 161.001, 2015 Tex. Sess. Law Serv. 1, 18-20 (current version at Tex. Fam. Code Ann. § 161.001 (West 6 EVIDENCE
Testimony of CPS Investigator
A CPS Supervisor at the time of trial who was the CPS Investigator for
R.M.’s case testified for the State. He testified that the Department received an
intake on September 27, 2014, alleging neglectful supervision stemming from
L.B.’s intoxication that night. According to the Investigator, L.B. got into a
disagreement with a friend. The intake stated that L.B. went to a neighbor’s house
whom she did not know and L.B. was very intoxicated. The Investigator went to
the hospital to talk to L.B. At trial, he described L.B. as “extremely intoxicated[,]”
instantly changing “from subject to subject and topic to topic[,]” and that L.B. was
“contorting her body in various ways that was not normal.” According to the
Investigator, he spoke to law enforcement earlier that night and “[t]hey indicated
that [L.B.] was one of the most intoxicated people they had ever seen.”
The Investigator, unable to continue conversing with L.B. due to L.B.’s
condition, left the hospital and went to the neighbor’s house where R.M. was at the
Supp. 2015)). Former subsections 161.001(1)(D), (E), and (M) are now designated as subsections 161.001(b)(1)(D), (b)(1)(E), and (b)(1)(M), and former subsection 161.001(2) is now designated as subsection 161.001(b)(2). Tex. Fam. Code Ann. § 161.001. The language contained within subsections (b)(1)(D), (E), and (M) remains the same as the former subsections, and the 2015 amendment does not affect the resolution of this appeal. See id. Therefore, we refer to the current version of the statute. 7 time, where the Investigator spoke with law enforcement. According to the
Investigator, he asked L.B.’s mother if R.M. could stay with her for the night, but
L.B.’s mother said no. R.W., a male friend of L.B.’s, arrived at the neighbor’s
house and, after the Investigator did a background check on R.W., R.M. spent the
night with R.W.
On September 28, 2014, the Investigator made contact with L.B. at her
house. According to the Investigator, L.B. “became agitated about halfway through
the conversation[]” and wanted to speak to an attorney, and the Investigator ended
the conversation. Thereafter, the Investigator interviewed L.B. on October 1, 2014.
The Investigator testified that during the interview L.B. “denied being on any
illegal substances[]” on the night of the incident, and L.B. stated that she had taken
Lunesta, Trazodone, muscle relaxers, and Norcos that night. The Investigator
explained at trial that he was unable to verify L.B.’s prescriptions for these
medications. The Investigator testified that L.B. was fully cooperative with the
interview and in signing the paperwork for the parental child safety placement. The
Investigator testified that he requested that L.B. submit to a urinalysis and hair
follicle test. According to the Investigator, the urinalysis was negative but the hair
follicle test was positive for methamphetamines. As a result of the investigation,
the Department sought removal of R.M. from L.B.’s care because the Department
8 concluded that R.M. would no longer be safe in L.B.’s care and “Family-Based
Safety Services wouldn’t be a pertinent enough procedure to do because . . . [R.M.]
would not be safe returning to [L.B.’s] home.”
Testimony of CPS Caseworker
The CPS Caseworker testified she had been R.M.’s caseworker since
September 2014 and visits R.M. at least once a month. The Caseworker explained
that when she first met R.M. he was not talking much, he was not able to answer
questions or interact with people, and he was inactive.
The Caseworker explained that R.M. was initially placed with R.W. until
February 2015. R.M. was initially placed with R.W., but there were problems
identified by the Caseworker, including concerns about R.W.’s supervision and
care of R.M., so the Department sought another placement. Around February or
March of 2015, the goal in the case changed from family reunification to unrelated
adoption, and R.M. was moved to his current placement.
According to the Caseworker, terminating L.B.’s parental rights to R.M. is
in R.M.’s best interest because L.B. “has not shown throughout the life of the case
that she’s able to care for [R.M.] long term.” The Caseworker explained that L.B.,
despite being asked to refrain from drinking alcohol because of her prior substance
abuse, tested positive for high levels of alcohol twice in 2015. The Caseworker
9 testified that L.B. had mood swings and was unpredictable, did not want to follow
the rules at her scheduled visits with R.M., was not compliant with her service
plan, and did not demonstrate an ability to take care of R.M. The Caseworker
testified that L.B. only understands R.M.’s special needs “to a certain extent[,]”
and the Caseworker explained that, throughout the case, it became apparent that
R.M. needs occupational and physical therapy and “things that he needed as far as
like a brace in his shoes to help him walk correctly, all that was never addressed in
the beginning.” The Caseworker added that, if R.M. was allowed to go home with
L.B., the Caseworker would be concerned about the kind of people R.M. would be
around because one of L.B.’s friends that she brought to a visitation with R.M. was
“on a run from . . . domestic violence[,]” was off her medication and had a baby
with her, and her children were later removed as well. According to the
Caseworker, L.B. had not made all the changes necessary to reduce the risk to
R.M., L.B. could not care for R.M., and L.B. had not been honest about “dancing
as a stripper[,]” the fact that L.B. tested positive for methamphetamines, and the
fact that L.B.’s neighbor had given her methamphetamines.
The Caseworker testified that she had done everything in her power to help
L.B. with her services and that it is in R.M.’s best interest to stay at his current
placement. On cross-examination, the Caseworker agreed that L.B. had completed
10 the tasks on her service plan, but the Caseworker explained that L.B. was not
compliant with her service plan because L.B. did not follow through with
recommendations and because she did not abstain from drug and alcohol use as
required.
The Caseworker testified she has no concerns about R.M.’s current
placement. R.M.’s current caregivers understand where R.M. is developmentally,
the school no longer calls regarding concerns about R.M.’s hygiene and is pleased
with R.M.’s current placement and progress in his learning, R.M. is receiving
occupational and speech therapy and attending doctor and dental visits, and R.M. is
more active and makes friends.
Testimony of Dr. Stadler
Jenny Stadler, PhD., a licensed psychologist who contracts with the State to
conduct psychological evaluations, testified for the State. According to Dr. Stadler,
she conducted an “extensive” interview of L.B. and sent a report to the Department
regarding Dr. Stadler’s recommendations. Dr. Stadler explained that during that
interview L.B. stated she had five children and had never been married. L.B. told
Dr. Stadler that CPS became involved after L.B. had been experiencing back pain,
had taken some unprescribed medication that caused her to hallucinate, was also
taking a large number of other medications, and had “an incident with some other
11 individuals and [R.M.] was present.” L.B. reported to Dr. Stadler that L.B. only
consumed alcohol on social occasions and that she had used cocaine from age
nineteen to twenty-nine, but L.B. denied any use of methamphetamine. L.B. told
Dr. Stadler that L.B. had been diagnosed with bipolar disorder, but Stadler
explained at trial that she questioned that diagnosis because L.B. informed her that
L.B. had “a history of head injury, brain injury,” and the symptoms L.B. reported
on the personality assessment inventory “seemed to be much more consistent with
the traumatic brain injury rather than the bipolar disorder.” At the time of the
interview, L.B. was taking Lunesta for difficulty sleeping and Klonopin for
anxiety.
Dr. Stadler testified that the testing she conducted during the interview
indicated there were risks regarding the Department’s goal of family reunification,
such as L.B.’s memory impairment. According to Stadler, memory impairment
could be a problem if R.M. were returned to L.B. because it would make it hard for
her to learn new skills. Dr. Stadler further explained that, even if L.B. completed
services, her memory impairment, along with her symptoms of “impulsivity,
distractibility, impulse-control difficulty, rigidity, [and] anxiety[,]” would raise an
issue of whether she could benefit from the services. Dr. Stadler testified that in
parenting, impulsivity can create a safety risk because an impulsive parent “might
12 impulsively strike a child if [she] didn’t have a lot of . . . the controls that would
make [her] stop doing something like that.” Stadler characterized “rigidity” as a
difficulty in “shift[ing] from one way of approaching something to another.” Dr.
Stadler also testified that L.B. has “labile mood[,]” which can also be a risk
because quick shifts in mood could cause impulsive behavior and that L.B. has a
tendency towards confabulation and to remember things that did not occur.
According to Dr. Stadler, the ability to be non-rigid in one’s thinking would be
particularly helpful for parenting a child with Down syndrome “because children
with Down syndrome can be rigid by themselves, so it would just be helpful to
have a parent with a little more flex.” Dr. Stadler also identified as a risk factor the
fact that L.B. does not have much social support in that she “tends to rely on her
psychiatrist . . . and maybe one close friend.”
Dr. Stadler testified that L.B.’s child abuse inventory and adult adolescent
parenting inventory “both raised red flags.” As for the child abuse inventory, Dr.
Stadler testified that the test results were “consistent with parents who are
abusers[]” and that the adult adolescent parenting inventory indicated that L.B.’s
“parenting knowledge was very low.” According to Stadler, L.B. has inappropriate
expectations, which means she does not completely understand a child’s normal
developmental capabilities, she has a low level of empathy, and she has “a hard
13 time engaging in the parental role[,]” which Stadler explained is highly unusual for
a parent of L.B.’s age and who has completed a parenting course. Dr. Stadler also
noted that L.B. “presented in a defensive fashion when she completed [the]
inventory[,]” which means “she tended to probably under-report symptoms[]” and
could “be a little more reluctant to engage in services.” Dr. Stadler testified that her
report noted that L.B.’s “thought process was circumstantial and distractible,
thought content included mild paranoid ideation and a tendency towards
grandiosity.” Dr. Stadler described “grandiosity” as “a tendency to talk about
yourself in a way that’s extremely positive and possibly a little unrealistic.” Dr.
Stadler explained that a child will generally model a parent’s behavior and if a
parent tends to exhibit paranoia or anxiety, the child of that parent “can pick up
those behaviors[.]” In Dr. Stadler’s opinion, L.B. had a traumatic childhood and
has not processed what she experienced as a child in order not to reenact those
behaviors as an adult, which affects L.B.’s ability to parent successfully. Dr.
Stadler testified that she was concerned about the stability of L.B.’s close personal
relationships and that L.B. has a “somewhat below average” interest in and
motivation for treatment.
Dr. Stadler testified that she made recommendations for L.B. in light of the
goal of family reunification: to participate in individual therapy to address anxiety
14 and parent education to “cover things a little bit better” since L.B. had already
completed a parenting course, to develop a better social support network to help
her in raising her disabled son, to consult with a psychiatrist concerning medication
for her brain injury, and to participate in family therapy.
Testimony of B.S.
B.S. also testified at the trial. B.S. was the caregiver with whom R.M. was
placed at the time of trial. B.S. agreed that he had a lot of experience in dealing
with special-needs children. B.S. explained that R.M. had been with B.S. and his
wife, R.S., for six or eight months and R.M. “fit in to the family” that included
other special needs children. B.S. stated at trial that when R.M. first came into their
care, R.M. had trouble bathing himself, had poor eating habits and diet, and wanted
to watch television a lot. B.S. testified that while in their care R.M. has “made a
tremendous amount of progress” in his therapies and has “excelled quite a bit faster
than other kids that [he had] seen.” B.S. testified that R.M. was hard to understand
when he first came into their care, but that at the time of trial R.M.’s vocabulary
had expanded, he was talkative, and he was recently able to sing on stage in a
church production. B.S. explained that he plays sports with R.M. in the backyard
and that R.M. enjoys being outside. B.S. testified that R.M. interacts well with the
other children at home and “he just fits in.” B.S. believed that, based on R.M.’s
15 behavior, R.M. was exposed to family violence prior to coming into their care, and
R.M. did not have a lot of experience outdoors. B.S. explained that it was his and
his wife’s goal to adopt R.M., and that B.S. already considers R.M. his son and
loves him.
Testimony of R.S.
R.S. testified that she and her husband have three other Down syndrome
children in their home, and that she has attended many classes or seminars on how
to care for children with special needs and Down syndrome. R.S. explained that
R.M. fits in “[v]ery well[]” at their home. According to R.S., R.M. receives speech,
occupational, and physical therapy at home and also receives occupational therapy
at school. R.S. testified that R.M. is progressing with his therapy and is thriving at
school. R.S. explained that R.M. has not demonstrated any separation anxiety since
his separation from L.B. and he does not mention L.B. or have any reaction after
he leaves his visits with L.B. R.S. describes R.M. as “a good boy[]” who is happy
and comes home from school excited to see everyone at their house. R.S. explained
that R.M. is healthy but needs constant supervision because “he’s delayed in areas
and he doesn’t have cognitive immediate forethought for things. . . . he needs
constant supervision and a safe environment because he also will not be able to
outcry for himself to get help and things like that because he’s not going to
16 understand it’s wrong.” R.S. testified that R.M. is “going to need meals prepared
for him forever[]” and that he will “have to have someone to help him with
shopping and keeping him safe or knowing right from wrong.” R.S. has adopted
other Down syndrome children and understands the lifetime commitment she will
be making to R.M. if they are able to adopt him, and she intends on caring for
R.M. even after he turns eighteen. According to R.S., she has bonded with R.M.
and loves him.
Testimony of K.T.
K.T. testified that she taught R.M. from 2013 through the 2015 school year
which was essentially the first and second grade. K.T. testified that prior to R.M.
being removed from L.B. by CPS, K.T. had concerns about R.M.’s well-being.
According to K.T., R.M. was demonstrating inappropriate behavior at school, was
aggressive and emotionally unstable, acted out sexually, and had poor hygiene and
would smell of urine. K.T. explained that R.M. was unable to communicate well in
first grade but was able to communicate his wants and needs. K.T. testified that she
taught R.M. life skills such as how to use the restroom, make sandwiches, dress
himself, have good hygiene, and stay safe in the community.
K.T. testified that R.M. would come to school wanting two or three
breakfasts. When he would arrive at school dirty, K.T. would take him to the
17 nurse’s office to get cleaned up or have his hair washed. According to K.T., R.M.
had a folder with R.M.’s daily work in which K.T. would make a note when she
had to address hygiene issues, and although parents were expected to initial the
folder daily, L.B. was not compliant. K.T. testified that L.B. attended meetings
with the teacher at the school but that some meetings had to be rescheduled
because L.B. did not show up or she cancelled. K.T. testified that on one occasion,
when R.M. was in first grade, L.B. came to a meeting at the school, and it appeared
L.B. was under the influence of a substance. The principal called law enforcement,
and L.B. was arrested upon leaving the school grounds. K.T. stated that when R.M.
was in second grade, K.T. observed L.B. slurring her speech and talking in
incomplete sentences at one school meeting.
K.T. explained that R.M. was probably absent at least fifty-five percent of
the school days in the first grade and the “school pressed charges with as many
days as he missed.” According to K.T., when R.M. was placed with R.W. in 2014,
R.M. still had poor hygiene and aggressive behaviors, did not make educational
progress, and R.W. would return the folder without initialing it or L.B. would
initial the folder even though she was not supposed to be with R.M.
K.T. testified that since February 2015, when R.M. was placed with his
current caregivers, B.S. and R.S., R.M. “has advanced tremendously[]” and is
18 thriving. According to K.T., the last time R.M. was in her class and when he was
placed in his current placement, he was no longer acting inappropriately. Although
she was not R.M.’s teacher at the time of trial, she had talked to his teacher and the
current teacher told K.T. that R.M. is “doing great. He’s completing assignments.
He’s happy. He’s not as hungry. I don’t think he’s ever missed a day of school this
year.” K.T. explained that she is excited for R.M., and that he is showing great
progress in a short period of time as a result of his therapies and because things
that are being worked on at school are being reinforced at home.
Testimony of K.E.
K.E., the nurse at R.M.’s elementary school testified. She has known R.M.
since 2010 and she has been the nurse at R.M.’s school while R.M. was in pre-
kindergarten through third grade. K.E. explained that R.M. had problems with
hygiene up until the year before trial. According to K.E., she communicated with
L.B. about the hygiene issues, but K.E. continued to have to help clean R.M., cut
his fingernails and toenails, and wash his clothes and shoes. Prior to his current
placement, R.M. had displayed aggressive behaviors and missed a lot of school,
and K.E. was concerned whether R.M. was getting enough to eat and if he was
safe. K.E. testified that since his current placement, R.M.’s attendance has
improved, R.M. no longer has hygiene issues at school, and R.M. does not exhibit
19 behavioral problems. K.E. did not believe that L.B. or R.W. made sure R.M.’s
needs were met, and K.E. believes R.M.’s needs are being met in his current
placement and that he is receiving services he has never before received.
Testimony of Court-Appointed Special Advocate
The Court-Appointed Special Advocate (the CASA) appointed for the case
testified that she has taught special education children for more than fifteen years.
The CASA explained that at a meeting with school personnel it was reported to the
CASA that, prior to R.M.’s current placement, R.M. had not been consistently
attending school or would be tardy, which would result in R.M. regressing and not
getting the consistent schedule that he needs. The CASA explained at trial that at
visits R.M. seemed happy to see L.B., but he showed no separation anxiety when
the visits were over.
The CASA expressed concern for R.M.’s safety if he was to be returned to
L.B.’s care because L.B. struggles to take care of herself, the CASA is not sure that
L.B. would put R.M.’s needs above her needs, and she questions L.B.’s
discernment as to her choice of friends, considering that special needs children
have an increased risk of abuse and are not always able to report it. The CASA had
concerns about L.B.’s alcohol consumption because, considering L.B.’s history of
addiction, if L.B. was intoxicated she “might make poor decisions[.]” The CASA
20 testified that L.B. lacked custody of her other children and that L.B. “was not able
to take care of any of her previous children past [the age of] four or five[.]”The
CASA explained that R.M.’s caregiver will have to make a lifetime commitment to
R.M. and to R.M.’s care and that the CASA worries about meeting R.M.’s needs as
he becomes an adolescent, and about medical issues that commonly arise with
persons with Down syndrome as they age. The CASA stated that she was
concerned that if R.M. was returned to L.B.’s care that L.B. could not “stay on top
of” R.M.’s needs while being a single mom with very little support at home.
The CASA testified that there has been a “big difference[]” in R.M.’s
progress since the CASA was assigned to the case in October 2014 and that R.M.
participates and engages more in conversations. According to the CASA, R.M. is
thriving in his current placement and she has no concerns with his current
placement. The CASA testified that she believed the best place for R.M. “to reach,
not only the greatest potential that he can reach but also for his safety and
security[]” is with his current placement, and that his placement with B.S. and R.S.
should be permanent.
L.B.’s Testimony
L.B., R.M.’s mother, testified that the identity of R.M.’s father is unknown.
According to L.B., she has five children, none of them live with her, and she has
21 already had her parental rights terminated as to two of the children. An order
terminating her parental rights as to one of her children was admitted into
evidence. L.B. explained at trial that R.M. had briefly been in CPS custody when
R.M. was an infant after a report to CPS that L.B. was not taking care of R.M.
According to L.B., CPS in Montgomery County also removed R.M. briefly in 2009
or 2010 when marijuana was found in L.B.’s house.
L.B. testified that she suffered a head injury in a motorcycle accident when
she was seventeen. According to L.B., she also had a back injury when she was
thirty-four. L.B. testified that she has rented her home for almost three years and
does bookkeeping, shopping, and cleaning for a construction company, and on
occasion, works during the day as a hostess and dancer at a gentleman’s club
where she has worked for fifteen years. L.B. testified that someone stole her
identity, which makes it hard for her to find employment. During her counseling,
L.B. told her counselor that she was having physical disability issues that made
dancing difficult and that she planned on starting classes to earn a certificate to be
a chemical dependency counselor. L.B. acknowledged that she had served jail time
for a conviction for assaulting her boyfriend thirteen years ago and that she has
been involved with CPS more than three times.
22 L.B. explained that just prior to R.M.’s removal, she had neck surgery and
she was prescribed Percocet and Soma. According to L.B., R.M. is in the
Department’s custody because L.B. took medication prescribed to her after surgery
and those medications interacted with her regularly prescribed medications and
caused her to black out. She testified that when she blacked out, someone came
into the house and offered her something to wake her up. L.B. said that after she
took it she “started feeling really weird” and walked two doors down with R.M.
and called 9-1-1. L.B. said she did not realize that the person had handed her meth,
and that it was the only occasion she had tried methamphetamine. L.B. testified
that she was already taking Trazodone and Lunesta to help her sleep, Klonopin for
her bipolar and anxiety, Prozac for depression, Effexor for seizures, and
Lorazepam and some other medications that she could not identify.
L.B. testified that she is “not a drinker[,]” has never drunk alcohol while
taking any medications, and the last alcoholic beverage she had was about a month
before trial. According to L.B., she received treatment at Santa Maria and has been
sober from crack for fifteen years. She acknowledged at trial, however, that she
had tested positive twice for alcohol during the pendency of the case. She stated
that she had received her one-month sobriety chip from “NA/AA[.]” L.B. testified
that she complied with her service plan and participated in counseling, completed
23 an alcohol and drug assessment, and maintained a home and employment.
Photographs of L.B. with R.M. and of her home were admitted into evidence.
According to L.B., R.M. has never seen her do drugs and the only time he saw her
impaired was the time of the last removal when she was impaired “on the
medication[]” but not on “meth[.]” L.B. explained she is no longer taking any
narcotic medications and that the Department has not given her a fair opportunity
to get her son back.
L.B. agreed that due to his special needs, R.M. needs to keep a routine, stay
on schedule, make it to school every day, have more interaction with people, and
have a sober parent. L.B. testified that when she or R.W. cared for R.M. that R.M.
went to school clean, dressed, and fed. She explained that she attended meetings
with R.M.’s teachers and that R.M.’s teachers never informed her that R.M. was
coming to school with improper hygiene and the only time she was notified that he
was not clean was when his notebook included a notation that he had gone to the
bathroom in his pants. L.B. explained that, prior to R.M.’s removal, there was a
six-week period when R.M. missed a lot of school because R.M. was sick and
seeing multiple doctors, and that L.B. was in constant communication with the
school district regarding the absences and received his assignments from the
district.
24 According to L.B., she reported to the Department that R.M. smelled like
urine and had bug bites and marks on his arm at visits, and she believed he was
being abused in his current placement. Photographs L.B. stated that she took of
R.M.’s arm at a visit were admitted into evidence. She also testified that she
believes R.M. has regressed while in the Department’s care and that R.M. is not
talking more than he was before. She testified she believes she is a good example
for R.M. and she wants L.M. to be just like her. She explained that she is ready to
have R.M. back and that he “was not doing well now like he would if he was with
me.”
Testimony of R.W.
R.W. testified that he met L.B. about six years prior to trial. R.W. testified
that he has twin grandsons the same age as R.M. and that R.M. had stayed at his
house prior to September 27, 2014. He saw L.B. and R.M. interact “a couple of
times a week, maybe every other weekend[]” prior to the CPS case. R.W. said he
never saw anything out of the ordinary with R.M. and L.B., described L.B. as an
“[e]xcellent mother[,]” and testified that he had no concerns about R.M. being
returned to L.B.’s care. R.W. explained that he never saw L.B. have more than one
drink and he never saw L.B. use illegal drugs. R.W. testified that L.B.’s behavior
on the night of September 27, 2014, was out of the ordinary for L.B. R.W.
25 explained that on that night CPS called him and asked if he could pick up R.M.
R.W. testified that R.M. stayed with him for the next four-and-a-half months.
According to R.W., during this period R.M. would attend daycare before and after
school. When asked if he ever received any reports from the school regarding
R.M.’s hygiene and care, R.W. responded, “a lot of times I didn’t know what was
going on. But yeah, I did one time, which I had questioned. When I got that one, I
questioned the daycare worker because [R.M.] never went to school dirty.”
According to R.W., R.M. would take a bath almost every night and would skip
taking a bath “maybe once every two weeks.” R.W. testified that the daycare and
school never expressed concerns about R.M.’s hygiene and he agreed that it would
surprise him if there were reports from the school of occasions when R.M.’s
clothes were so dirty they had to clean R.M. at school. R.W. denied ever sending
R.M. to school with soiled underwear, but R.W. explained that at times R.M.
would soil his underwear at school and come home in different clothes.
Testimony of B.N.
B.N. testified for L.B. B.N. explained that he lives out of town and met L.B.
about thirteen years ago at a club. According to B.N., he and L.B. had an intimate
relationship about twelve years ago but have remained friends. L.B. introduced
B.N. to B.N.’s current wife, S.N. “[O]n a fairly regular basis[,]” when they lived
26 closer and after R.M. was first born, B.N. and S.N. would visit L.B. and R.M. B.N.
testified that he saw L.B. and R.M. interact when R.M. was about three years old
and that he did not have any concerns about L.B. as a parent. He never saw L.B.
use illegal drugs and said that “[o]n occasion she might take a drink[.]” B.N.
explained that the last time B.N. saw R.M. was “four or five years” prior to trial
and that he knew “[a] little bit[]” about the CPS case. He testified that in his
opinion it would be out of character for L.B. to mix illegal drugs and prescription
medications and cause her to black out; and, B.N. said that it would surprise him if
those allegations had been made against L.B. According to B.N., he has talked to
L.B. once every two or three months over the last several years and he was
unaware of how many times R.M. has been in CPS care. B.N. has talked to L.B.
during the pendency of the case and L.B. has told him that she misses R.M.
Testimony of S.N.
S.N., B.N.’s wife, testified that she used to come to L.B.’s house and babysit
R.M. for two to three weeks “every couple of months” and last saw him at least a
year before trial. She testified that she never was concerned regarding the way L.B.
cared for or interacted with R.M. and that L.B. “took very good care” of him. S.N.
testified that she never knew L.B. to use drugs or abuse prescription medications
and that L.B. “wouldn’t drink because she doesn’t like beer [and] doesn’t like any
27 kind of liquor.” According to S.N., L.B. told her that R.M. was in the Department’s
care because after L.B. had neck surgery and the doctor prescribed medicine that
reacted badly with her other medications and “she kind of had a blackout.”
Testimony of J.O.
J.O. testified that he has known L.B. for about ten years, that L.B. used to
come and visit with friends at his home, and that she would bring R.M. with her.
J.O. testified he assumed L.B. drank alcohol because her friends did, but he never
saw her drinking. J.O. acknowledged that L.B. worked as a dancer and when asked
whether he thought it was a good idea for L.B. as a recovering addict to work at a
place serving alcohol he testified that “she’s strong enough to handle it.” He last
saw L.B. and R.M. together about a year before the trial. He explained he never
had any concerns about how L.B. and R.M. interacted and he had no knowledge
about L.B.’s prior CPS history or about the details of this case.
ISSUES ON APPEAL
L.B. raised two issues on appeal. In her first issue, L.B. asserts that her trial
counsel rendered ineffective assistance. In her second issue, she argues the
evidence was insufficient (1) to support the termination of her parental rights to
R.M. under statutory grounds for termination, and (2) prove that terminating her
rights to R.M. is in R.M.’s best interest.
28 INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
In her first issue, L.B. contends her trial counsel rendered ineffective
assistance of counsel. An indigent parent who is appointed counsel has a right to
the effective assistance. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (interpreting
Tex. Fam. Code Ann. § 107.013(a)(1) (West Supp. 2015)). The standard for
determining claims of ineffective assistance is the two-prong analysis adopted by
the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687
(1984).
Under the first prong of Strickland, L.B. must show that her counsel’s
performance was deficient. See id. at 545 (quoting Strickland, 466 U.S. at 687).
When examining the performance of counsel, we focus on whether counsel
performed in a “reasonably effective manner.” Id. Counsel’s performance falls
below acceptable levels of performance “when the ‘representation is so grossly
deficient as to render proceedings fundamentally unfair[.]’” Id. (quoting Brewer v.
State, 649 S.W.2d 628, 630 (Tex. Crim. App. 1983)). We give deference to
counsel’s performance, and “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance[.]” Strickland, 466
U.S. at 681, 689. Under the second prong of the Strickland test, L.B. must establish
that her counsel’s deficient performance caused harm. See M.S., 115 S.W.3d at
29 549-50. Harm is established by showing that “‘there is a reasonable probability
that, but for counsel’s unprofessional error(s), the result of the proceeding would
have been different.’” See id. at 550 (quoting Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001)). In making an ineffective assistance of counsel allegation
in a termination case, the allegation must be firmly founded in the record and the
record must affirmatively demonstrate the alleged ineffectiveness. Walker v. Tex.
Dep’t of Family & Protective Servs., 312 S.W.3d 608, 622-23 (Tex. App.—
Houston [1st Dist.] 2009, pet denied). When the record is silent as to the reasons
for trial counsel’s conduct and strategies, we will not speculate to find counsel’s
representation ineffective. P.W. v. Dep’t of Family & Protective Servs., 403
S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet. dism’d w.o.j.);
Walker, 312 S.W.3d at 623.
L.B. argues that her counsel’s assistance was deficient in the following
respects: counsel allowed the Department’s expert to testify “even though [L.B.’s
counsel] was only notified of [the expert] in [a] disclosure two weeks before
trial[]”; counsel failed to offer into evidence certain communications with parties
recorded by L.B. that would impeach or bolster trial testimony; counsel failed to
introduce L.B.’s records for R.M.’s absences/illnesses; counsel failed to obtain
R.M’s occupational therapy records; and counsel failed to object to certain
30 evidence, testimony, and arguments. L.B. did not file a motion for new trial, and
her trial counsel has not been afforded the opportunity to respond to the allegations
of ineffective assistance. Therefore, the record before this Court is silent as to trial
counsel’s strategy regarding the challenged conduct. “If the reasons for counsel’s
conduct at trial do not appear in the record and it is at least possible that the
conduct could have been grounded in legitimate trial strategy, we will defer to
counsel’s decisions and deny relief on an ineffective assistance claim on direct
appeal.” In re K.L.A.C., No. 14-08-00960-CV, 2010 Tex. App. LEXIS 354, at *18
(Tex. App.—Houston [14th Dist.] Jan. 21, 2010, no pet.) (mem. op.). In such
circumstances, to warrant a reversal, “the challenged conduct must be ‘so
outrageous that no competent attorney would have engaged in it.’” Id. (quoting
Roberts v. State, 220 S.W.3d 521, 533-34 (Tex. Crim. App. 2007)). “[T]hat
counsel could have provided a better defense is not a legal basis for finding
counsel constitutionally deficient.” Id. (citing Bone v. State, 77 S.W.3d 828, 836
(Tex. Crim. App. 2002)).
According to the record, L.B.’s counsel objected to Dr. Stadler’s testimony
on the basis that Dr. Stadler “was not disclosed to us in request for disclosure.”
From the discussion on the record, it appears that the disclosures were amended,
but the record is unclear as to when the State first disclosed Dr. Stadler as a
31 witness. Furthermore, once the State provided information in response to the
objection, L.B.’s counsel withdrew the objection. Counsel’s withdrawal of the
objection could have been strategic and L.B. has not shown that counsel’s actions
in withdrawing the objection were deficient or that the outcome of the trial would
have been different if counsel had not withdrawn the objection and the objection
had been sustained by the trial court. See M.S., 115 S.W.3d at 545-46. As for the
alleged audio recordings and attendance/illness records in L.B.’s possession, even
if admissible, the appellate record does not reflect counsel’s reasons for not
offering the items into evidence and we therefore must presume his actions were
sound trial strategy. See P.W., 403 S.W.3d at 476. Additionally, L.B. has not
shown that such conduct, if deficient, caused her harm. See id. With respect to
counsel’s alleged failure to object to certain evidence and testimony, L.B. has not
demonstrated that her counsel’s actions were deficient or harmed her case or
deprived her of a fair trial. See M.S., 115 S.W.3d at 545-46. Issue one is overruled.
SUFFICIENCY CHALLENGE
In her second issue, L.B. argues that the evidence was insufficient to support
the “grounds for termination” found by the trial court, and that the evidence was
insufficient to support the trial court’s finding that termination of L.B.’s parental
rights was in R.M.’s best interest. Specifically L.B. argues the evidence was
32 insufficient to support the trial court’s finding by clear and convincing evidence
that L.B. knowingly placed or knowingly allowed R.M. to remain in conditions or
surroundings that endanger his physical or emotional well-being or that L.B.
engaged in conduct or knowingly placed the child with persons who engaged in
conduct that endangers R.M.’s physical or emotional well-being. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (b)(1)(E). Although on appeal L.B. challenges the
sufficiency of the evidence under subsections (D) and (E), she does not specifically
state how the evidence is insufficient to support the trial court’s finding under
section 161.001(b)(1)(M). See id. § 161.001(b)(1)(M).
Standard of Review
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(b)(1) of the Family Code, and termination is in the
best interest of the child. See id. § 161.001(b)(1), (b)(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
33 allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West
2014).
In reviewing the legal sufficiency of the evidence in a parental rights
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 344-45
(citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). 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
34 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 (citing J.L., 163 S.W.3d at 86-87).
Statutory Grounds for Termination
Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there is also a finding that termination is
in the child’s best interests. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re
S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.). Therefore, we
affirm the termination order if the evidence sufficiently establishes any statutory
ground upon which the trial court relied in terminating parental rights and if the
evidence sufficiently supports the best interest finding. See In re A.V., 113 S.W.3d
at 362. Even if we liberally construe L.B.’s brief challenging the sufficiency of the
evidence supporting the “grounds for termination” to include a challenge to the
trial court’s finding under section 161.001(b)(1)(M), we conclude that sufficient
evidence supports the trial court’s ruling under section 161.001(b)(1)(M).
The trial court may order termination of the parent-child relationship if the
court finds by clear and convincing evidence that the parent has had the parent-
child relationship terminated with respect to another child based on a finding that
the parent’s conduct was in violation of subsections (D) or (E) and termination is
35 in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b)(1)(M), (b)(2).
At trial, a “Final Order Modifying Prior Order and Decree for Termination” was
admitted into evidence without objection. The final order terminated L.B.’s
parental rights as to her child, W.J., based on the trial court’s findings by clear and
convincing evidence that L.B.’s conduct was in violation of subsections (D) and
(E) and that termination of L.B.’s parental rights was in the child’s best interest. At
trial, L.B. agreed that her parental rights had been terminated as to her son, W.J.
There was uncontroverted evidence that L.B.’s parental rights to another child had
been terminated on a finding that L.B.’s conduct had violated ground (D) and (E).
Best Interests of the Child
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 that may indicate that the existing parent-child
36 relationship is not a proper one, and (9) any excuse for the acts or omissions of the
parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex.
Fam. Code Ann. § 263.307 (West Supp. 2015). 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. In re A.P., 184 S.W.3d 410, 414 (Tex.
App.—Dallas 2006, no pet.). The best interest determination may rely on direct or
circumstantial evidence, subjective facts, and the totality of the evidence. In re
N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). A trial court’s
best interest finding “is not dependent upon, or equivalent to, a finding that the
child has been harmed by abuse or neglect or is in danger of such harm[,]” but
rather it “is a term of art encompassing a much broader, facts-and-circumstances
based evaluation that is accorded significant discretion.” In re Lee, 411 S.W.3d
445, 460 (Tex. 2013).
In this case, the record allowed the trial court to reasonably credit the
testimony showing that B.S. and R.S. had provided and would continue to provide
R.M. with a safe and stable home where R.M. is loved and receives the support and
services needed to thrive, and that R.M.’s current caregivers have agreed to adopt
him. See Tex. Fam. Code Ann. § 263.307(a) (“[T]he prompt and permanent
placement of the child in a safe environment is presumed to be in the child’s best
37 interest.”). The trial court heard testimony that L.B.’s other four children were not
in her care and that her parental rights as to two of those children had been
terminated. The trial court heard testimony from witnesses such as Dr. Stadler,
R.M.’s past teacher, R.M.’s school nurse, and the CASA, all of whom testified that
R.M. remaining in his current placement was in R.M.’s best interest. Given L.B.’s
failure to provide a safe and stable environment for R.M. and to ensure R.M. was
properly fed, clean, and receiving proper services, together with her lack of
“parenting knowledge[,]” the trial court was presented with clear and convincing
evidence that termination of L.B.’s parental rights was in R.M.’s best interest. See,
e.g., In re J.D., 436 S.W.3d 105, 119 (Tex. App.—Houston [14th Dist.] 2014, no
pet.) (“A parent’s inability to provide adequate care for her children, unstable
lifestyle, . . . lack of parenting skills, and poor judgment may be considered when
looking at the children’s best interest.”); see also In re J.F.C., 96 S.W.3d at 266;
Toliver v. Tex. Dep’t of Family and Protective Servs., 217 S.W.3d 85, 102 (Tex.
App.—Houston [1st Dist.] 2006, no pet.). Having considered the Holley factors
and the evidence the trial court had before it, we conclude the trial court’s best-
interest finding is supported by legally and factually sufficient evidence.
Because sufficient evidence supports the trial court’s ruling under subsection
161.001(b)(1)(M), we need not address the arguments that L.B. raises concerning
38 the trial court’s findings under subsections 161.001(b)(1)(D) and 161.001(b)(1)(E).
In re A.V., 113 S.W.3d at 362; see also Tex. R. App. P. 47.1. We overrule L.B.’s
second issue.
The trial court’s judgment is affirmed.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice
Submitted on May 31, 2016 Opinion Delivered June 30, 2016
Before McKeithen, C.J., Kreger and Johnson, JJ.