in the Interest of S.S., a Child

• Court: Court of Appeals of Texas
• Decided: April 18, 2019
• Docket: 02-18-00353-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00353-CV ___________________________

IN THE INTEREST OF S.S., A CHILD

On Appeal from the 322nd District Court Tarrant County, Texas Trial Court No. 322-568527-15

Before Pittman, Gabriel, and Kerr, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

After a bench trial in 2018, the visiting judge (trial court) terminated the

parent–child relationships of Dale Fouse (Father) and Appellant Audrey Smith

(Mother) with their son, Sam,1 finding that Father had executed an unrevoked or

irrevocable affidavit of relinquishment of his parental rights and that termination of

the parental rights of both Father and Mother was in Sam’s best interest. See Tex.

Fam. Code Ann. § 161.001(b)(1)(K), (2). The trial court also found that Mother

• knowingly placed or knowingly allowed [Sam] to remain in conditions or surroundings which endanger[ed his] physical or emotional well-being . . . ; [and]

• engaged in conduct or knowingly placed [Sam] with persons who engaged in conduct which endanger[ed his] physical or emotional well-being . . . . Id. § 161.001(b)(1)(D), (E).

Only Mother appealed. In two issues, she challenges the legal and factual

sufficiency of the endangerment and best-interest findings against her. Because we

hold that the evidence is sufficient to support the termination of Mother’s parental

rights, we affirm the trial court’s judgment.

1 See Tex. R. App. P. 9.8(b)(2) (requiring courts to use aliases to refer to minors in parental-rights termination cases and, if necessary to protect the minors’ identities, to also use aliases to refer to their family members). In this opinion, we use aliases to refer to the children, their parents, and the foster parents.

2 STATEMENT OF FACTS

I. Mother Had a History of Committing Violence and Endangering Her Children Before Sam’s 2017 Removal.

A. Mother Engaged in Family Violence Before Having Children.

Mother’s estranged half-sister (Sister) testified that Mother was in the California

juvenile system as a teenager and that after she aged out at eighteen years old and

returned home, she assaulted their mother and little brother regularly.

B. Mother Endangered Her Elder Son Before Sam Was Born.

Mother’s son Adam (who is not a subject of this appeal) was born in July 2009,

and Mother was divorced from her husband (Ex-Husband) in 2012. Sister had been

concerned about Mother’s parenting of Adam from 2011 until Ex-Husband regained

possession of him. Regarding Mother’s relationship with Adam:

• Sister believed there was a lack of attachment between Mother and Adam;

• Sister was concerned that Mother tried to drown Adam when he was two or two and a half (Mother had also accused Sister of drowning him when Sister had possession of him);

• Sister saw Mother deliver a “very hard slap” to Adam’s head when he was two and a half. It hurt him enough that he cried a while, and Sister’s same-aged son, who observed it, cried too;

• Mother locked Adam in the bathroom at Sister’s house; and

• Locks in Mother’s home for Adam’s room were on the exterior, not interior. Mother’s former boyfriend reported that during their relationship, Mother

3 would repeatedly lock then four-year-old Adam in the bedroom for long periods of

time, causing him to urinate and defecate on himself.

C. Sam Was Born After a Brief Relationship between Father and Mother.

After a two-month relationship with Father, Mother became pregnant with

Sam in early 2014. During her pregnancy, Mother filed a complaint with the

Grapevine Police Department alleging that Father had assaulted her and filed a

different complaint with the Haltom City Police Department alleging that Father had

sexually abused Adam. During the same period, Mother was caught on video covertly

following Father into, inside, and outside a Saginaw Walmart, and she followed him

by car from the Walmart parking lot almost to Weatherford. Father’s employer, the

Fort Worth Police Department (FWPD), conducted an internal affairs investigation,

ultimately closing it and ruling out Mother’s complaints based on her lack of

credibility.

Sam was born at the end of December 2014. Mother was acting bizarrely at

the hospital when it was time to discharge the infant, so the hospital did not want to

release him to her. The hospital contacted Child Protective Services (CPS)—the

investigative arm of the Texas Department of Family and Protective Services

(TDFPS)—who called Father to pick up Sam.

D. Mother Was Arrested for Assaulting Her Elderly Landlord and Resisting Arrest.

Within days of Father’s taking Sam from the hospital, Mother regained legal

4 possession of him, and she soon moved to Denton County with her two children.

In August 2015, Mother was charged with injury to an elderly person and

resisting arrest after she allegedly assaulted her elderly landlord (Landlord) in Denton.

Adult Protective Services (APS) supervisor Laura Gutierrez investigated the case.

Allegedly, Landlord woke up to a noise about 3:00 or 4:00 a.m. on August 30, 2015,

went downstairs, saw Mother in his office, and asked if he could help her. Mother

then “lunged at him, grabbed his skin under his arms, and pulled him toward her.”

She then repeatedly threatened to slit his throat. He tried to break free. She finally

pushed him away and ran upstairs, repeating her threat to slit his throat. He had

fingernail marks and scrapes on both sides of his chest. Landlord testified that

Mother did not look normal during the incident. He had never seen her wide-eyed

“like that.” He and his wife called 911.

The police came in the middle of the night, so Adam and Sam were asleep but

present at the time of the alleged assault and initial interaction with police. The police

went upstairs to speak with Mother, who denied Landlord’s allegations and woke the

children by yelling at the police officers. Landlord heard the commotion from

downstairs. The arresting officer testified that:

• The marks he saw on Landlord were consistent with his having been grabbed as described;

• Mother put the children in danger when the police were trying to handcuff her by going to the bed where Sam lay, jumping on the bed, and grabbing Sam instead of submitting to police custody;

5 • Mother resisted arrest, yelling about the children getting taken away;

• Adam woke up from all the yelling;

• Adam seemed really scared and was shaking;

• The officer put Adam on the bed with Sam and then put Sam in a bouncy seat;

• The officer calmed Adam down;

• Mother appeared to be under the influence of some substance because her pupils were very dilated, but she stated that she had not taken Adderall for a couple of days; and

• Mother’s resisting arrest charge was still pending in Denton at the time of the termination trial. Mother denied in her testimony that she had ever threatened to slit Landlord’s throat

but admitted that she had told him before the incident that she would defend herself

if he hurt her. Mother also claimed that Sam was too young to be emotionally

affected by the incident and that Adam bounced back and asked no questions about

it. Similarly, Patricia Kaminski, a counseling clinical psychologist whom Mother called

as an expert witness (Mother’s Psychological Expert), testified that in her review of

the police officer’s body-cam video, she did not see that the children were scared. She

admitted, however, that Mother’s waking up the children during her arrest was not in

their best interest.

APS supervisor Gutierrez testified that (1) Landlord and his wife were very

afraid of Mother, afraid of retaliation, and intimidated by her and (2) the allegations of

physical abuse of Landlord and emotional abuse of his wife and him were

6 substantiated.

Mother admitted that things had been tense at the Denton home, so much so

that she and the children had left for six weeks in the summer and stayed with friends.

When asked why she went back to the Denton home after that six-week period, she

testified that she “didn’t know really what to [do] because it just felt like [she] was

stuck in a mess.”

E. The Conditions of Mother’s Bedroom and the Bathroom She Shared With Her Children at the Denton Home as well as Landlord’s Testimony Suggested Neglect and Drug Abuse.

Open Adderall capsules were found in Mother’s bedroom after her arrest.

Mother was prescribed Adderall for ADHD. Maurice Saah, Professor of Chemistry

(Mother’s Drug Expert), testified that one way to take Adderall is to open the capsules

and mix the drug with a substance like applesauce, which people who have trouble

swallowing do. However, Mother’s Psychological Expert testified that open capsules

would not be consistent with taking Adderall as prescribed and that the open Adderall

capsules collected at the Denton crime scene raised a concern that Mother was

abusing her medication.

Landlord testified that:

• Mother’s filthy room conditions at his house would not have harmed the children;

• On the other hand, Mother’s filthy bedroom and the bathroom conditions that he had complained to her about—dirty, moldy bottles, old food, smelly clothes, dirty linens, and an unsanitary, urine-stained toilet—represented neglect of the children’s health;

7 • He never saw Mother abuse the children or refuse to be attentive to their needs;

• However, his wife and others had told him that Sam would cry endlessly in the early morning hours, and Adam would get in bed with Sam and try to feed him;

• Adam would not wake Mother up when Landlord’s wife asked him to; and

• Landlord had seen Adam acting afraid of Mother. Mother admitted that Adam was not allowed to wake her up except in an

emergency.

F. Mother and Her Sons Lived in a Fort Worth Boarding House for Most of 2016, and More Evidence of Neglect and Crime Accumulated.

Mother testified that after the Denton County incident, she and the children

lived in a church member’s house until January 2016, when they moved to a Fort

Worth boarding house. The landlady (Landlady) of the Fort Worth boarding house

testified that:

• Mother left her children unattended when she would go out at night;

• In May 2016, Mother left the children alone two or three times per week, staying gone three to four hours sometimes, and returning after midnight;

• Landlady saw the children outside of their room only once when Mother was out;

• Landlady heard Sam crying at night on multiple occasions when Mother was gone;

• Adam missed school three or four times per week;

8 • Mother’s room smelled like dirty diapers even from the hall;

• Landlady was concerned near the end of Mother’s lease about the children not being fed properly;

• Adam asked Landlady for food repeatedly;

• Landlady ended up buying food for the children; and

• Adam set the stove on fire baking unsupervised. Mother offered conflicting testimony from her former housemate, Ronald O’Rourke,

who testified that in the ten months they both lived in the boarding house:

• He had no concerns that the children were neglected or abused;

• He had no knowledge of the children being left alone;

• He babysat for Mother more than a few times at prearranged times, approximately once a month, for 45-minute to two-hour periods;

• The children had plenty of food and appropriate nourishment;

• He and Mother both went to the kitchen when they smelled burning while Adam was baking in the stove-burning incident; and

• There was no smell upstairs (where Mother’s room was) after the plumbing was fixed in early summer. Father testified that:

• From September to December 2016, Mother brought Sam to the Tarrant County Family Courthouse for Father’s supervised visits;

• Sam was not very clean, he smelled bad, and his scalp was inflamed and scaly; and

• One time when it was really cold outside, Sam’s clothes were drenched, and he had soiled himself.

9 G. After Mother Stopped Living at the Boarding House, She Was Caught Stealing from Landlady and Another Housemate.

On December 24, 2016, while Adam was with Ex-Husband in Florida for the

holidays, Mother left Sam with a babysitter and was then caught on tape stealing from

other people in the boarding house that she and the children had recently vacated.

On December 26, FWPD Officer Joseph Preston responded to a burglary report at

the boarding house. Landlady told him Mother had broken into Landlady’s room and

another tenant’s room and stolen things. Landlady showed Officer Preston

surveillance video footage showing Mother entering the boarding house and

Landlady’s room and taking things, and he secured a search warrant for Mother’s

room at the boarding house.

The room Mother and the boys had shared at the boarding house was very

dirty. Multiple plates of half-eaten food lay around. There was a heavy urine smell,

mostly from the closet. A Pack ‘n Play containing big pillows and blankets, all heavily

stained, was found in the closet. Officer Preston testified that he found several open,

dirty diapers throughout the room and in the closet. “[H]aving the food, having the

filth from the urine . . . coming from the closet, the dirty soiled diapers and whatnot,

we crossed a line between messy. It was . . . definitely strong on the nostrils, burned

the nostrils when you walked in. And it was pretty bad . . . .” He opined that the

conditions would have endangered a two-year-old:

The closet—one, a child should not be kept into a closet. It’s not ventilated, nothing like that. Then you want to add the filth from the

10 urine. So now we have a poor ventilated room [in] which a child is supposed to be sleeping with improper bedding. It was definitely a dangerous situation for the child to be in.

Now, just for the general room of the child, if the child was not actually in the pack-and-play and was actually in the bedroom portion of it, the dirtiness . . . and everything else that was found throughout the room, you can take your pick between choking hazard to knives, forks laying around for the child to pick up. There was plenty of hazards for the child. Child should not be in the room, in my opinion.

Officer Preston secured an arrest warrant for Mother on December 30, 2016.

That night, Mother went back to the boarding house. On January 2, 2017, Officer

Preston reviewed camera footage of Mother entering the boarding house late on the

night of December 30, 2016, holding a knife in forward position. Mother testified

that she picked up a knife in the boarding house’s kitchen to pry the lock open to her

locked room and that she returned the knife to the kitchen before she left; she denied

threatening anyone with it or entering the boarding house with it.

H. Sam Was Removed in January 2017 After He Was Found Barricaded in a Closet When Mother Was Arrested.

On the afternoon of January 5, 2017, the FWPD arrested Mother at her former

attorney’s Fort Worth apartment/office (apartment). She testified that he had allowed

her to stay there temporarily while he was out of town. When the police arrived at the

apartment, they noticed that its front door was damaged such that it would not lock.

Officer Preston testified that that was a threat to a young child and that he saw no

sign that Mother had attempted to somehow secure the door otherwise. When the

police spoke to Mother, she directed them to Sam’s location—a closet with a big

11 plastic tub blocking it. She testified that Sam had been napping when the police

arrived. Clothes and dirty diapers were on the closet floor, and things were tossed

about in the closet.

The evidence on Sam’s condition when the police found him was conflicting.

TDFPS testified that he had a dirty diaper. Mother testified that he had a wet diaper,

but the police uncuffed her to change it, and that he was happy and playing around.

Officer Preston did not recall unusual smells regarding Sam, nor did he recall Sam

being dirty. Officer Preston testified that:

• Sam had a pillow or stuffed animal but no water or blanket;

• Sam was very thirsty and asked for a drink;

• Sam was very scared and very emotional;

• Sam was upset and crying; and

• Sam played and ran around after he calmed down.

At trial, Mother admitted that she had put Sam in the closet and had blocked

the closet with a storage tub to keep him in because he kept getting out. She stated

the door was not shut all the way, but Officer Preston testified that according to the

CPS investigator, who (along with other FWPD officers) arrived at the apartment

before Officer Preston, the closet was completely closed and barricaded. The closet

also held paper towels and plastic trash bags, a choking hazard.

Mother insisted that she never punished either child by putting him in a closet

12 and that she only put Sam in the closet in this instance as a safety measure. Mother’s

Psychological Expert could think of no reason why barricading Sam in the closet for a

daytime nap was necessary; Mother could have protected him by staying awake.

Officer Preston testified that based on what he saw at both the boarding house

and the apartment, he had great concerns for Sam’s welfare. Had there been a fire or

any other emergency situation, Sam would not have been able to escape.

TDFPS removed Sam and placed him in his foster home that evening. Foster

father Ken Howell testified that:

• Sam arrived wearing a wet diaper with a foul odor that was neither feces nor urine;

• Sam had a severe diaper rash with three open sores, the worst that Howell had ever seen;

• The scars lasted more than a month;

• Sam was so pale that his veins were visible;

• Sam was dirty with a flaky, scabby scalp;

• Sam’s knees were puffy and bluish; and

• Sam’s stomach was bloated, considering his thinness. The police arrested Mother for the boarding-house offense and took her to Tarrant

County Jail. Mother was released on bond and agreed to work TDFPS services.

After leaving the jail, Mother lived at a women’s shelter for four to five weeks

and then rented a room from March to May 2017 in Haltom City.

13 I. Less Than Five Months After Sam’s Removal, Mother Was Arrested in Georgia and Spent About Six Months in Jail.

Meanwhile, Ex-Husband in Florida did not return Adam after his December

2016 possession, so in May 2017, Mother drove to Ex-Husband’s home in Florida,

assaulted him with pepper spray in front of Adam, strapped Adam into her rental car,

and drove away. Mother testified that Ex-Husband hit her before she pepper-sprayed

him and took Adam. Regardless, Mother admitted that the conflict scared and

“rattled” Adam.

Mother was arrested in Georgia for battery and interference with child custody.

Adam, who was with her at the time of arrest, told the police that he was slightly

affected by the pepper spray. He was ultimately returned to Ex-Husband.

About two weeks after her Georgia arrest, Mother was extradited to Florida.

When Mother arrived at the Florida jail, she had visible bruising on her face and

abrasions on her right leg. The bruises were at least a week old. Mother told the

Florida officers that the bruises and abrasions were a result of her physical struggle

with Ex-Husband. However, she had not told the Georgia troopers who arrested her

that Ex-Husband had hit her, and one of them testified that he saw no marks or

bruises on her.

The Florida court issued a no-contact order against Mother regarding Adam

and Ex-Husband. Mother was in jail in Florida until October 2017. Several months

after her release, she signed a pretrial diversion contract with the State of Florida, in

14 which she admitted committing battery against Ex-Husband and the no-contact order

was extended. The contract provided that she had no criminal history.

Mother testified that she did not know if her trip to Florida was in Sam’s best

interest.

From Florida, Mother was extradited to Texas regarding the boarding-house

charges. She was released from Tarrant County Jail in mid-November 2017, stayed in

a hotel about ten days before getting an apartment in December 2017, and obtained

an extension to complete her TDFPS services.

In February 2018, a warrant was issued for her failure to appear at a Tarrant

County criminal court hearing on her boarding-house case.

J. Mother Was Arrested in Grapevine in April 2018, a Few Months Before Trial.

Gaylord Texas Convention Center Emergency Medical Technician/Security

Officer Nicole McLear testified:

• She was working third shift on April 28, 2018;

• She was called to a possible domestic assault in the early morning hours on the 8th floor of the Lone Star Tower;

• She saw Mother on the security cameras on the fourth floor and went to her;

• Mother was waiting by the elevator;

• Mother was barefoot, “extremely angry,” “disheveled,” “unusually emotional,” and yelling at her and appeared to be under the influence of some substance because she was slurring her words;

15 • Mother told McLear that a man had thrown her out of his hotel room by her neck;

• McLear saw no marks on Mother’s neck or signs of assault but admitted that an assault could have caused Mother’s frazzled appearance;

• Mother admitted drinking;

• When McLear called the police, Mother became angry because she had outstanding warrants;

• Mother saw the police after she and McLear exited the elevator on the first floor, and she ran away from them;

• Mother told “about 12 different stories”;

• Mother would not tell the police her assailant’s name and would not identify herself; and

• The police arrested Mother. Mother testified that the incident occurred because she “just got freaked that

moment because of everything that happened with [her recently deceased] attorney”

and “was really distraught about it and . . . made some poor choices.”

Mother’s Grapevine arrest was based on the Tarrant County warrant for failure

to appear as well as new charges of public intoxication, failure to identify, and

resisting arrest. Mother was taken to Tarrant County Jail. She soon pled guilty to

Class A misdemeanor theft regarding the December 24, 2016 boarding-house

incident, was placed on two years’ deferred adjudication, and was released. The

Tarrant County charge of failure to identify and the 2015 resisting arrest charge in

Denton County were still pending at the termination trial.

16 K. The Trial Court Heard Evidence That Mother Was Suicidal a Week Before Trial Began.

Sister testified that a friend of Mother’s contacted her about a Facebook post

ostensibly authored by Mother regarding threats to harm herself, and Sister gave it to

TDFPS. TDFPS testified that Mother threatened to kill herself on Facebook a week

before trial and therefore TDFPS was worried about her mental health. Mother

denied that the Facebook post was hers and denied being suicidal.

DISCUSSION

In her first issue, Mother challenges the legal and factual sufficiency of the

evidence supporting the endangerment findings against her, arguing that “[d]espite

periods of instability,” by “the time of trial [she had] completed her services, rectified

her pending criminal matters, and secured stable housing and employment” and

TDFPS had failed to prove that she had engaged in a deliberate course of conduct or

that Sam’s environmental conditions had risen to the level of neglect. In her second

issue, Mother challenges the legal and factual sufficiency of the evidence supporting

the best-interest finding against her, arguing that breaking the bond between Sam and

her would be against his best interest and that TDFPS did not prove that she could

not meet his present and future needs.

I. TDFPS Must Prove Its Case by Clear and Convincing Evidence.

For a trial court to terminate a parent–child relationship, TDFPS must prove

two elements by clear and convincing evidence: 1) that the parent’s actions satisfy

17 one ground listed in family code section 161.001(b)(1); and 2) that termination is in

the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re E.N.C., 384 S.W.3d

796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Evidence is clear and

convincing if it “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; E.N.C., 384 S.W.3d at 802.

II. We Determine Whether the Evidence Is Sufficient to Support Termination Findings.

To determine whether the evidence is legally sufficient to support the trial

court’s endangerment and best-interest findings, we look at all the evidence in the

light most favorable to those findings to determine whether a reasonable factfinder

could form a firm belief or conviction that the finding is true. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005); see Tex. Fam. Code Ann. § 161.001(b)(2). We assume that the

factfinder settled any evidentiary conflicts in favor of its finding if a reasonable

factfinder could have done so. J.P.B., 180 S.W.3d at 573. We disregard all evidence

that a reasonable factfinder could have disbelieved, and we consider undisputed

evidence even if it is contrary to the finding. Id. That is, we consider evidence

favorable to the finding if a reasonable factfinder could, and we disregard contrary

evidence unless a reasonable factfinder could not. See id.

We must perform “an exacting review of the entire record” in determining the

factual sufficiency of the evidence supporting the termination of a parent–child

18 relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due

deference to the factfinder’s findings and do not supplant them with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide

whether a factfinder could reasonably form a firm conviction or belief that Mother

endangered Sam or placed him in an endangering environment and that termination

of the parent–child relationship would be in his best interest. See Tex. Fam. Code

Ann. § 161.001(b)(1)(D), (E), (2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the

factfinder reasonably could form such a firm conviction or belief regarding an

endangerment ground and the best-interest ground, then the evidence is factually

sufficient to support termination. C.H., 89 S.W.3d at 18–19.

III. The Evidence Sufficiently Supports the Endangerment Findings.

A. Child Endangerment Can Occur When the Child is Not Present and When a Parent’s Conduct Is Not Aimed at Him.

As this court has often discussed,

Endangerment means to expose to loss or injury, to jeopardize. The trial court may order termination of the parent-child relationship if it finds by clear and convincing evidence that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child. Under subsection (D), it is necessary to examine evidence related to the environment of the child to determine if the environment was the source of endangerment to the child’s physical or emotional well-being. Conduct of a parent in the home can create an environment that endangers the physical and emotional well-being of a child.

The trial court may order termination of the parent-child relationship if it finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who

19 engaged in conduct that endangers the physical or emotional well-being of the child. Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child’s physical or emotional well-being was the direct result of the parent’s conduct, including acts, omissions, and failures to act. Termination under subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required.

To support a finding of endangerment, the parent’s conduct does not necessarily have to be directed at the child, and the child is not required to suffer injury. The specific danger to the child’s well-being may be inferred from parental misconduct alone. . . . As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the child’s physical and emotional well-being.

In re J.W., No. 02-08-00211-CV, 2009 WL 806865, at *4 (Tex. App.—Fort Worth

Mar. 26, 2009, no pet.) (mem. op.) (citations and internal quotation marks omitted).

“[E]vidence of abuse of another child, coupled with a present or future danger

to the child in question, is relevant to determine whether a parent has engaged in an

endangering course of conduct.” In re E.A.W.S., No. 02-06-00031-CV,

2006 WL 3525367, at *10 (Tex. App.—Fort Worth Dec. 7, 2006, pet. denied) (mem.

op.); see also In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at *6 (Tex. App.—

Fort Worth Oct. 1, 2015, no pet.) (mem. op.). Additionally, threats to commit suicide

may contribute to a finding that the parent engaged in a course of conduct that was

detrimental to a child’s well-being. In re J.A.T., No. 04-17-00386-CV,

2017 WL 4937960, at *4 (Tex. App.—San Antonio Nov. 1, 2017, no pet.) (mem.

op.); In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).

Finally, a parent’s criminal conduct or imprisonment is relevant to whether a parent

20 has engaged in a course of conduct that endangered the well-being of the child. In re

K.S., No. 02-18-00191-CV, 2018 WL 4659120, at * 3 (Tex. App.—Fort Worth Sept.

28, 2018, no pet.) (mem. op.) (relying on A.S. v. Tex. Dep’t of Family & Protective Servs.,

394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.)).

B. Clear and Convincing Evidence Supports the Endangerment Findings.

Sufficient endangerment evidence on many fronts supports the trial court’s

endangerment findings. The trial court heard evidence that:

• Mother hit a two-year-old Adam in the head hard enough to scare the toddler observing it;

• Mother repeatedly locked a four-year-old Adam in a room long enough for him to urinate and defecate on himself;

• Mother let infant Sam cry in the early mornings, and four-year-old Adam did his best to feed the baby because he was afraid to break her rule and wake her up;

• Mother raised her young sons in filthy, unsanitary conditions;

• Mother assaulted an octogenarian and then put her sons at risk while resisting the resulting arrest;

• Mother entered her former boarding house to steal, only to be caught on camera;

• Mother re-entered the boarding house a few days later with a knife;

• Mother barricaded two-year-old Sam in a closet so long that he was “very thirsty” when he was released and had a diaper rash with three open sores that left scars for a month;

• After Sam’s removal, Mother drove to Florida, pepper-sprayed Ex- Husband, and forcibly took Adam, who was also hit with the spray;

21 • Mother did not see Sam for more than six months; and

• Mother chose to miss four visits with Sam in April 2018 because a warrant was pending for her arrest, but in that same month, she chose to become intoxicated in a public place, refused to identify herself to law enforcement, and resisted arrest again. Mother admitted at trial that she was aware that arrests and convictions could

violate her Tarrant County and Florida probation agreements. TDFPS testified that

there was probably not a good chance Mother would stay out of trouble, based on her

past behavior. If Sam were returned to Mother and she committed new offenses, or

her probation was otherwise revoked, Sam would be removed again, which would

give him no stability.

The evidence showed that Mother neglected both sons, trapped both sons in

confined places for extended periods of time, engaged in violence in their presence,

chose to engage in criminal activity (both before and after Sam’s removal) repeatedly

with no thought to the children’s safety or well-being, and then attempted to exploit

them to avoid the consequences of her actions. As TDFPS testified,

• a person who continues to engage in a course of criminal conduct endangers a child’s emotional and physical well-being; and

• it hurt the children to witness Mother’s arrests and also demonstrated her instability as a parent. We agree. Accordingly, applying the appropriate standards of review, see J.P.B.,

180 S.W.3d at 573 (providing legal-sufficiency standard of review); C.H., 89 S.W.3d at

18–19, 28 (providing factual-sufficiency standard of review), we hold that the

22 evidence is legally and factually sufficient to support the trial court’s endangerment

findings, and we overrule Mother’s first issue.

IV. The Evidence Sufficiently Supports the Best-Interest Finding.

In her third issue, Mother contends that the evidence is legally and factually

insufficient to support the trial court’s best-interest finding. In determining whether

evidence is sufficient to support a best-interest finding, we review the entire record.

In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Although we generally presume that

keeping a child with a parent is in the child’s best interest, In re R.R., 209 S.W.3d 112,

116 (Tex. 2006), the best-interest analysis is child-centered, focusing on the child’s

well-being, safety, and development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018).

Evidence probative of a child’s best interest may be the same evidence that is

probative of a subsection (1) ground. E.C.R., 402 S.W.3d at 249; C.H., 89 S.W.3d at

28. We also consider the evidence in light of nonexclusive factors that the trier of fact

may apply in determining the child’s best interest:

(A) the child’s desires;

(B) the child’s emotional and physical needs, now and in the future;

(C) the emotional and physical danger to the child now and in the future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the child’s best interest;

(F) the plans for the child by these individuals or by the agency seeking custody;

23 (G) the stability of the home or proposed placement;

(H) the parent’s acts or omissions indicating that the existing parent– child relationship is not a proper one; and

(I) any excuse for the parent’s acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at

249 (stating that in reviewing a best-interest finding, “we consider, among other

evidence, the Holley factors” (footnote omitted)); E.N.C., 384 S.W.3d at 807. These

factors are not exhaustive, and some listed factors may not apply to some cases. C.H.,

89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be

sufficient to support a finding that termination is in the child’s best interest. Id. On

the other hand, the presence of scant evidence relevant to each factor will not support

such a finding. Id.

A. The Risks Sam Would Face in Mother’s Care Support the Best- Interest Finding.

The most significant best-interest evidence is the endangerment evidence.

Sam’s emotional and physical condition at the time of removal is also compelling. In

addition to describing Sam’s physical condition on the day he was removed and

placed in foster care—the thin body with bloated stomach; the wet diaper with an

unfathomably foul odor; the severe diaper rash and open sores; the visible veins and

flaky, scabby scalp—foster father Howell testified that at the beginning of Sam’s

placement, he would grab a blanket, his bear, a drink, and food; tell the foster parents

good night; and shut himself in his closet. The Early Childhood Intervention (ECI)

24 therapist believed that Sam’s issue with the closet was trauma-related. By the time of

trial, Sam was no longer shutting himself in the closet. Sam also had bath issues

initially. He fought and screamed during his first bath when water touched his head.

That behavior continued over time, but by trial, Sam liked baths. Sam also had

bedtime fears at first. The foster parents would have to put him in his crib only after

he was asleep. However, by trial, Sam would fall asleep in his own bed after story

time.

Sam was speech-, developmentally, and cognitively delayed when removed

from Mother. The CASA volunteer testified that he was also timid, kept to himself,

and did not engage much. While in foster care, Sam received ECI, including

occupational and speech therapy, until he aged out of ECI at the age of three. Then

the foster parents put him in social therapy and trauma-informed therapy. By the

time of trial, Sam was thriving, doing well in daycare, and was very smart and very

social— a “typical three-year-old boy” who was a lot of fun to be around.

Mother admitted that Sam’s life had been filled with chaos before the removal

and that she bore some blame for that. She further took responsibility for the August

2015 Denton arrest; for the events that led to her January 5, 2017 arrest and Sam’s

removal; for her conduct leading to her May 2017 arrest; and for her conduct leading

to the April 2018 arrest. Although Mother admitted that she had “done some stupid

things,” she claimed that she had still “made efforts to progress,” “do services,” and

“visit [Sam] whenever [she] could.”

25 Mother’s Psychological Expert testified that a parent’s engaging in criminal

conduct and being away from home harms the child and that past behavior is the best

predictor of future behavior. TDFPS testified that Mother had a history of making

poor choices resulting in bad consequences and that her bad pattern was to make

decisions that would endanger the children and lead to her arrest. She had not

changed that pattern. TDFPS remained concerned that if Sam were returned to

Mother, her decisions would keep putting him in danger. Finally, at trial, Mother was

on probation for the 2016 boarding-house theft and the Florida battery, and other

charges were still pending. Thus, while TDFPS conceded that Mother had made

some improvements in her ability to safely provide for Sam—for example, she had

achieved stable housing by the end of trial—TDFPS did not believe that she showed

sufficient stability to support reunification.

B. The Evidence Demonstrates that Mother and Sam’s Bond Decreased During Her Six-Month Jail Stay, but Having Spent More Than Eighteen Months of His Young Life with the Foster Family, Sam Was Bonded with Them at Trial.

Mother testified that the trial court should not terminate her relationship with

Sam because he was bonded with her, he needed a mother, and she was trying.

Mother testified that during visits, she reinforced how special Sam was to her by

cuddling and playing with him and reinforced how important learning is by bringing

educational toys and tracking his progress.

There is no dispute that Mother and Sam were bonded. The CASA volunteer

26 testified that in the visits she observed in February through May 2017, Mother was on

time, Sam was excited to see her and would cling to her, and Mother would get down

on his level to play and bring appropriate snacks and toys. TDFPS similarly testified

that every visit from January 2017 to May 2017 before Mother left for Florida went

very well. Foster father Howell testified that Sam cried when he was separated from

Mother in the early visits and before May 2017, he would get upset when she missed a

visit.

But when Mother was in jail from late May to November 2017, she and Sam,

who was not yet three years old, had no visits or contact for six and a half months.

(TDFPS admitted that Mother had asked for visits via Skype while she was in the

Florida jail, but TDFPS rejected that request.) After Mother’s confinement ended and

her visits with Sam resumed, Mother often arrived more than fifteen minutes late.

Although she still behaved appropriately, the bond appeared to have waned,

according to both the CASA volunteer and foster father Howell. At the foster home,

Sam no longer talked about her or spontaneously asked about her or about seeing her.

Mother’s Psychological Expert testified that the long gap in visits because of

Mother’s confinement was not a permanent bond-breaker and that the videos she had

reviewed of Mother and Sam together after that gap showed that the bond had been

recreated. The expert also testified that divesting Sam of his bond with Mother was

not at all in his best interest.

But Mother also missed visits with Sam in March and April 2018 because she

27 was afraid that she would be arrested on pending warrants. Sam was at the TDFPS

office waiting for Mother to arrive for three of the four April 2018 visits she chose to

miss.

On the other hand, Sam had been with the foster parents for a continuous

period of almost twenty months and had bonded with them and his 1½-year-old

foster brother that the foster parents planned to adopt.

C. The Evidence Shows that the Foster Parents Were Meeting Sam’s Needs and Could Meet His Future Needs.

The foster parents loved Sam and planned to adopt him if the trial court

terminated the parents’ rights. Foster father Howell testified that he and the other

foster father met Sam’s physical and emotional needs. Howell worked only twelve

days a month for an airline; the other foster father was at home every day.

The CASA volunteer testified that:

• The foster parents had a great, safe, very well-kept home;

• Sam’s bedroom was decorated with posters and tents; and

• The foster parents met all of Sam’s needs.

She recommended termination and adoption by the foster parents.

That was also TDFPS’s recommendation. TDFPS testified that:

• It had no concerns about the foster home or the foster parents’ abilities;

• The foster parents were stable, were meeting Sam’s present needs, and were capable of meeting any future needs;

• There were no present or future dangers in the foster placement; and

28 • The foster parents’ long-term goal was to raise Sam to his “full potential” and “love him, care for him, and meet his needs.” Mother’s Psychological Expert maintained that Mother’s parental rights should

not be terminated and that she should maintain some role in Sam’s life. However, the

expert also acknowledged why the foster parents would be hesitant to allow Mother

to remain in Sam’s life. The Psychological Expert also said that contact with Mother’s

extended family would be healthy for Sam.

The foster parents were open to the idea of Sam continuing his relationship

with his extended family on Mother’s side but very concerned about continued

contact between Sam and Mother because of her behavior during the pendency of the

case and the testimony they heard at trial. During a supervised visit, Mother had

asked foster father Howell to meet her alone outside the TDFPS building. He

refused, and then her “attitude and demeanor escalated,” making him uncomfortable.

Nevertheless, the foster parents indicated they would be willing to set up a website

where they would post pictures of Sam for Mother and she could post letters for him.

D. The Evidence Shows that Mother Could Not Meet Sam’s Present and Future Needs.

Mother testified that termination was not in Sam’s best interest and described

her plans should Sam be returned to her:

• The bedroom in her apartment was Sam’s;

• She had food and clothing for him, as well as books, learning materials, and toys;

29 • She had pre-enrolled him in a pre-K school based on the technology it offered; and

• She knew that a child’s first five years and early education were developmentally important. Mother admitted that Sam’s life with her had been unstable and that the chaos in the

past had not been good for him but contended she planned to change that pattern in

the future.

Although Mother testified that she had developed an appropriate safety net and

plan for Sam going forward, she admitted that she was still working on it and was at

“the beginning stages of getting back on [her] feet,” and she conceded that “things

might not be together” yet. Nevertheless, Mother contended that Sam should be

returned to her because she “fe[lt] like [she had not] been given a chance.” We note

that Mother was granted a case extension after her six months in jail.

Mother’s Psychological Expert confirmed that Mother was not in a position to

meet all of Sam’s needs: “I think that she’s shown enough problematic judgment

where, at this point, I don’t think that she has the skill set or supports to single-

handedly manage [her children] well.”

TDFPS was concerned about Mother’s parenting abilities, her meeting Sam’s

future emotional and physical needs, and the present and future dangers to his

emotional and physical safety that living with her would bring. TDFPS testified that

there were no excuses for Mother’s acts or omissions: Mother kept making the wrong

choices and not taking responsibility, and “that would just have a negative impact on”

30 Sam. As TDFPS explained, the services Mother completed should have helped her

decision-making but did not. She had completed parenting classes and her individual

classes by the time of her missed visits with Sam and latest arrest in April 2018.

The CASA volunteer testified that

• She was concerned about Mother’s stability;

• Mother had eighteen months to “get[] her life back together” but showed no progress;

• Mother’s skipping visits with Sam because of pending warrants indicated instability: Sam was removed originally because the police were serving Mother with an arrest warrant. Mother was therefore still engaging in a “consistent pattern” of endangering activity as late as April 2018; and

• Even though Mother completed court-ordered services, she did not appear to have undergone a permanent behavior change because she still engaged “in activities that require police attention,” referring to Mother’s April 2018 arrest that occurred after she had completed some court- ordered services. E. We Uphold the Best-Interest Finding Against Mother.

Having reviewed all the evidence according to the appropriate standards of

review, see J.P.B., 180 S.W.3d at 573 (providing legal-sufficiency standard of review);

C.H., 89 S.W.3d at 18–19, 28 (providing factual-sufficiency standard of review), we

hold that the evidence is legally and factually sufficient to support the trial court’s

best-interest finding, and we overrule Mother’s second issue.

CONCLUSION

Having overruled both of Mother’s issues, we affirm the trial court’s judgment.

31 Per Curiam

Delivered: April 18, 2019