Opinion issued August 16, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00140-CV NO. 01-18-00141-CV ——————————— IN THE INTEREST OF L.J.M., W.J.M., AND N.J.M., CHILDREN IN THE INTEREST OF S.S.M., A CHILD
On Appeal from the 314th District Court Harris County, Texas Trial Court Case Nos. 2016-04727J, 2016-06662J
MEMORANDUM OPINION
In these termination of parental rights cases, S.M., Sr. (Father) appeals the
trial court’s decrees terminating his parental rights to his sons, L.J.M., W.J.M., and
N.J.M., and to his daughter, S.S.M. In one issue on appeal, Father contends that the Department of Family and Protective Services (DFPS or Department) failed to
present factually sufficient evidence to support the trial court’s finding that
termination of his parental rights was in his children’s best interest.
We affirm.
Background
Father and S.C. (Mother) have four children who are the subjects of these
appeals: L.J.M. (“Luke”), who was born in April 2013; W.J.M. (“Wesley”), who
was born in May 2014; N.J.M. (“Nathan”), who was born in October 2015; and
S.S.M. (“Samantha”), who was born in December 2016, while the underlying suit
involving her older brothers was already pending.1 Father has three older children
from a previous relationship who were not involved in these proceedings.2 Mother
is not a party to this appeal.
1 We refer to the children by pseudonyms to protect their privacy and for ease of reading. The suit involving the termination of Mother’s and Father’s parental rights to Luke, Wesley, and Nathan was tried in trial court cause number 2016-04727J and resulted in appellate cause number 01-18-00140-CV. The suit involving the termination of Mother’s and Father’s parental rights to Samantha was tried in trial court cause number 2016-06662J and resulted in appellate cause number 01-18- 00141-CV. The trial court terminated both Mother’s and Father’s parental rights. Mother did not appeal the trial court’s decrees of termination. 2 The trial court admitted evidence that DFPS had been involved with Father’s older children. Specifically, in 2011, one of Father’s children tested positive for opiates at birth. DFPS had also received referrals that, in February 2014, Father struck two of his older children and that, in April 2014, Father’s older children “were spotted sitting in the middle of the road outside of their house and almost got run over by an oncoming car.” 2 DFPS first became involved with the children in November 2014. In an
affidavit supporting the petition to terminate Mother’s and Father’s parental rights,3
DFPS caseworker Montoyua Ponder averred that the Department received a referral
that the family’s home contained “physical and sanitary hazards such as broken
windows, animal/human feces and roaches/rodents.” DFPS assisted the family in
moving to a new home. DFPS received an additional referral of neglectful
supervision in January 2016 when Wesley, who was not quite two years old at the
time, “was found crawling in the middle of a busy street a good distance from his
home.” DFPS also received a referral of physical neglect in March 2016 because of
“concerns that the home environment of the children was deplorable.” All three of
these cases were “ruled out,” and Ponder averred that “the family made great strides
to clean the home and [Mother and Father] also placed chain locks on both entry
doors.”
Ponder averred that DFPS sought temporary managing conservatorship of
Luke, Wesley, and Nathan as well as termination of Mother’s and Father’s parental
rights to the children after two further referrals in July and August of 2016. In the
first referral, in July 2016, the Department received a report that three-year-old Luke
had a habit of leaving the home and “wandering the streets” while Mother was busy
with his younger brothers, sometimes late at night, and that neighbors would bring
3 The trial court admitted this affidavit into evidence at the final hearing. 3 him back home. On one particular occasion, Luke escaped the house while Mother
was bathing the younger children, and he was hit by a car. An ambulance took Luke
to the hospital, but he did not have serious injuries from this incident. Ponder averred
that she recommended that Mother and Father clean the home and that they purchase
sliding locks for both doors to prevent the children from leaving the home unnoticed.
Ponder stated that, during her visit to the home, she observed Luke leave the house
without Mother and Father noticing.
Ponder further averred that DFPS received another referral in August 2016.
DFPS received a report that Luke had been examined at a local hospital for “ligature
marks” on both his ankles. The marks “were almost to the bone” and “appeared to
be infected.” According to Mother and Father, Luke discovered a pair of handcuffs
that Father owned and he placed the handcuffs around his own ankles. Mother
reported that she and Father were unable to find the key to the handcuffs, so they
used various tools, including a saw and metal cutters, to remove the handcuffs.
Mother cleaned the wounds on Luke’s ankles and used antibacterial ointment, but
she and Father waited several days before seeking medical attention for Luke and
did not “call for help because it would look like abuse and they were scared.” Upon
DFPS’s insistence, Luke was admitted to Texas Children’s Hospital for treatment.
Ponder attached Luke’s medical records to her affidavit. Dr. Rebecca
Chancey, the attending physician at Texas Children’s Hospital, reported that Luke
4 had “denuded skin” and “deep open wounds” over both of his ankles that
“require[ed] plastic surgery evaluation and likely skin grafting,” and he also had a
recent buckle fracture to his left shoulder and an old, healing fracture to his right
arm. Dr. Chancey stated that Luke’s wounds were not consistent with Mother’s and
Father’s explanations and that his fractures “show[ed] evidence of abuse in the past.”
Dr. Chancey also examined Wesley and Nathan. Neither of these children was
injured, although, upon reviewing Wesley’s medical records, Dr. Chancey noted that
Wesley had a history of medical issues and that he needed follow up visits with
neurology and cardiology specialists. The trial court admitted Luke’s and Wesley’s
medical records into evidence at the final hearing.4
On August 25, 2016, the day after Luke was admitted to the hospital, DFPS
filed its petition seeking managing conservatorship over Luke, Wesley, and Nathan
and seeking the termination of Mother’s and Father’s parental rights. The trial court
entered an order naming DFPS the temporary managing conservator of the children,
and the court also ordered that Mother and Father have no visitation with the children
until further order of the court. The trial court also approved family service plans for
4 Wesley’s medical records indicated that he suffered from a pulmonary hemorrhage when he was a newborn and that Mother and Father missed his follow-up cardiology appointments and did not provide a reason for this failure. Medical records also indicated that Wesley experienced several seizures when he was around one year old and he was diagnosed with periventricular leukomalacia, developmental delay, and gross motor delay. The records stated that Wesley was “at risk of developing epilepsy and cerebral palsy.” 5 Mother and Father, requiring them to complete a parenting course, participate in
individual counseling and a psychosocial assessment, obtain legal employment and
stable housing, and submit to drug testing.5
In September 2016, Mother and Father were charged with the felony offense
of injury to a child arising out of the August 2016 incident involving Luke and the
handcuffs. The trial court admitted into evidence a copy of the probable cause
affidavit completed by Houston Police Department Officer D. Marshall, who
investigated the possibility of physical abuse after Luke was treated at Texas
Children’s Hospital. Officer Marshall averred that Mother told him that Luke had
put the handcuffs around his own ankles and that she could not locate the key. She
further stated that, after searching for the key for five hours, she and Father had to
cut the handcuffs off of Luke’s ankles because Luke started losing circulation in his
feet. Officer Marshall averred:
[Mother] stated they tried to cut the handcuffs with a sawzall, followed by a knife sharpener, and then ultimately was successful when using a grinder. [Mother] stated that [Father] used the grinder while [Mother] held [Luke], who was scared and crying, down. [Mother] had one arm on [Luke’s] upper body and the other arm on [Luke’s] legs. [Mother] stated it took about 5 hours to grind the handcuffs off, and caused [Luke] more injuries—burns from the heat of the grinder and cuts to his skin. [Mother] further stated that the grinding made the cuffs dig deeper and deeper into [Luke’s] skin.
5 At the final hearing, the trial court admitted testimony and exhibits indicating that Mother tested positive for marijuana use in September 2016. Father tested positive for alcohol use in September 2016 and July 2017, and he tested positive for marijuana use in January 2017. 6 After the handcuffs were removed, [Father and Mother] did not seek immediate medical treatment for [Luke’s] injuries. Instead, [Mother] stated she let the injuries air dry. When the wounds started to get red and infected. [Mother] told [Father] to take [Luke] to the doctor. [Mother] stated, “I know we should have taken him on the first day, but we didn’t.” [Luke] was taken to the doctor on Tuesday, August 23, 2016, approximately 4 days after the incident. Affiant knows from his 10 years of training and experience that handcuffs have a universal key. If [Father] or [Mother] had contacted first responders or law enforcement, the handcuffs could have been easily removed with any handcuff key. The defendants’ failure to get the handcuffs removed in a timely manner by making contact with law enforcement caused [Luke’s] injuries and could have easily been avoided. Affiant met with Dr. M. Donaruma, who is a child abuse pediatrician at Texas Children’s Hospital, and found her to be credible and reliable. Dr. Donaruma stated that [Luke’s] scarring and injuries will have permanent disfigurement and will cause difficulties for [Luke] as he grows taller. Dr. Donaruma further stated that the delay in removing the handcuffs caused serious disfigurement, significant pain, and risk of infection.
Mother stated to Officer Marshall, “We didn’t want to get the cops involved because
we knew what would happen.” Mother ultimately pleaded guilty to the offense of
injury to a child in August 2017, and the criminal court assessed her punishment at
two years’ confinement. At the time of the final hearing in the underlying
termination proceedings, Father had not yet been to trial on the injury to a child
charge.
While Mother was in custody during the pendency of the injury to a child
charge, she gave birth to Samantha in December 2016. DFPS immediately filed a
petition seeking to be named Samantha’s temporary managing conservator and 7 seeking termination of Mother’s and Father’s parental rights to Samantha. In the
affidavit supporting the termination petition, which was admitted into evidence at
the final hearing, DFPS caseworker Monique Norman averred that Samantha was
born while Mother was in custody at the Harris County Jail and that Mother would
return to the jail in several days, but “it is unknown who will take custody of”
Samantha. Norman averred that Father had also been charged with injury to a child
but had been released on bond, and DFPS had been unable to contact Father to
discuss a placement for Samantha. Mother had provided Norman with the names of
several family members who she thought might be able to take care of Samantha,
including Mother’s father (“Grandfather”), but Norman was not able to make contact
with any of the people Mother had named as potential caregivers. The trial court
signed an order naming DFPS as Samantha’s temporary managing conservator.
In October 2017, Grandfather and his fiancée filed a petition in intervention,
seeking to be named managing conservators of the children, or, if Mother’s and
Father’s parental rights were terminated, seeking to adopt the children. Jessica
Gomez, the DFPS caseworker assigned to the children, completed a “Preliminary
Kinship Caregiver Home Assessment” of Grandfather’s home in January 2018. Four
people lived in Grandfather’s home, including Grandfather, his fiancée, a friend of
Grandfather, and that friend’s twelve-year-old grandson. Grandfather did not have a
criminal history or a history with DFPS, but his fiancée had been referred to DFPS
8 for neglectful supervision in 2007 and also had several past arrests. Grandfather and
his fiancée “stated they are willing to care for the children and protect them in any
way possible, even if that means they do not let [Mother] come and visit,” but “[t]he
caseworker was not very confident the potential caregivers were telling the truth.”
Gomez listed several potential concerns about the placement, including
Grandfather’s fiancée’s criminal and DFPS history; the lack of running water at the
house during Gomez’s visit; Grandfather’s plan for the three older children—
including Luke, who had a history of escaping Mother’s and Father’s house—to
sleep in the front room next to the front door; Grandfather’s plan for Samantha to
sleep in a bed in the room he shared with his fiancée, which did not have a door; and
Grandfather’s fiancée’s attempts to get custody of her four grandchildren, “which
will put 8 children, age 11 and younger” in their care. Gomez recommended denial
of Grandfather’s house as a placement for the children.
At the final hearing, Gomez testified concerning the events that had brought
the children into DFPS’s care, including the incident in which Luke left the house
and was hit by a car and the incident in which Luke had “severe ligature marks on
his ankles” and the treating doctors believed that his injuries were “consistent with
physical abuse.” The trial court admitted photographs of the injuries to Luke’s
ankles. Gomez testified concerning Mother and Father’s explanation for Luke’s
injuries, which was that Luke climbed up five or six drawers of a dresser to pull
9 handcuffs out of the top drawer, which he then secured around his ankles. Mother
and Father could not find the key to the handcuffs, so they tried several different
methods to remove the handcuffs before succeeding with an electric grinder. Mother
and Father “did not initially take [Luke] to the doctor or call for help because they
knew that they had a CPS case open and they did not want it to look like child abuse.”
Gomez testified that Luke’s medical records showed that he had a new fracture to
his shoulder and a healing fracture to his wrist, which the attending physician ruled
“non-accidental.”
Gomez testified that both Mother and Father completed the parenting course
required by their family service plans. Father, however, did not maintain contact
with DFPS, he did not participate in individual counseling or in a psychosocial
assessment, he did not provide proof of legal employment, he did not provide proof
of stable housing, and he did not participate in regular drug testing. Gomez also
testified that while Mother was no longer incarcerated at the time of the final hearing,
she did not have current contact information for Mother, and she did not know where
Mother was located.
Gomez testified that Luke, Nathan, and Samantha were currently placed in a
foster home together, and Wesley was placed in a separate foster home. Gomez
stated that, during the pendency of the proceedings, Wesley was diagnosed with
10 cerebral palsy, and the foster parents taking care of Luke, Nathan, and Samantha
determined that they could not also take care of Wesley due to his special needs.
Gomez further testified that Grandfather had contacted her and asked to be
considered as a placement for the children, but she testified that she would not be in
favor of that placement. Gomez stated that she did not believe Grandfather’s house
was a safe place for the children due to his fiancée’s criminal history and a lack of
“adequate space of living.”
Gomez stated that termination of Mother’s and Father’s parental rights to the
children would be in their best interest. She testified:
It’s in their best interest due to the fact that they are now being taken care of and not neglected as previous CPS investigations have found. They are being provided all of the needs that they need, including therapeutic needs, stable housing, clothes. They’re clean. The children have progressed a lot. [Luke] is speaking a lot more. [Wesley] has learned to walk. [Wesley] is speaking a lot more. The children are going to be in a home free from drug use and abuse—physical abuse.
The trial court admitted a permanency report completed by DFPS in December 2017,
and this report reflected that the children were doing well in their current placements,
Luke and Wesley were receiving therapy, the children were bonded to their
caregivers, and the children—Wesley and Nathan in particular—enjoyed their visits
with each other. Gomez stated that there was a good chance of finding an adoptive
home for the children if the trial court terminated Mother’s and Father’s parental
rights.
11 Lisa McCartney, an expert in “the welfare, safety, and placement of children,”
testified that, in her opinion, the children should not be separated because it “would
be damaging to their emotional and physical well being” and that Wesley and
Nathan, in particular, should be placed together. McCartney also testified that both
Luke and Wesley had special needs: Luke had been diagnosed with “a lot of learning
disabilities” and was taking medication for ADHD and Wesley had been diagnosed
with cerebral palsy. McCartney testified that both Nathan and Samantha were
“developmentally on target” and there were no concerns regarding their health.
McCartney stated:
The children have had so many moves in their short lives, from different placement to different placement and their history of significant abuse and neglect at the hands of their parents, they need to, you know, not be moved until their final destination. So my recommendation would be to do a legally free broadcast on these children nationwide. I think these children are adoptable and that we can find—I think we’ll get a lot of homes because they’re legally free. . . . And these kids don’t need—they need permanency. They need to be together and they need permanency and they need the right family that is prepared to deal with two children with special needs.
McCartney recommended that, while DFPS waits to find a family that can adopt all
four children, the children remain in their current placements.
The trial court signed decrees terminating Mother’s and Father’s parental
rights to the children under Family Code subsections 161.001(b)(1)(D), (E), and (O).
The trial court also found that termination of both parents’ parental rights was in the
best interest of the children and appointed DFPS as the children’s sole managing 12 conservator. The trial court’s final decrees dismissed Grandfather’s suit in
intervention. Father’s appeal followed.
Best Interest of the Children
In his sole issue on appeal, Father contends that DFPS failed to present
factually sufficient evidence to support the trial court’s determination that
termination of his parental rights was in the best interest of the children under Family
Code section 161.001(b)(2). Father does not challenge the sufficiency of the
evidence to support the statutory predicate grounds for termination under section
161.001(b)(1), nor does he challenge the legal sufficiency of the evidence supporting
the trial court’s best interest finding.
A. Standard of Review
A trial court may order termination of the parent-child relationship if DFPS
proves, by clear and convincing evidence, one of the statutorily enumerated
predicate findings for termination and that termination of parental rights is in the
best interest of the children. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2017);
see In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (stating that federal due process
clause and Texas Family Code both mandate “heightened” standard of review of
clear and convincing evidence in parental-rights termination cases). DFPS must
prove both elements—a statutorily prescribed predicate finding and that termination
is in the children’s best interest—by clear and convincing evidence. In re E.N.C.,
13 384 S.W.3d at 803. The Family Code defines “clear and convincing evidence” as
“the measure or degree of proof that will produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be established.”
TEX. FAM. CODE ANN. § 101.007 (West 2014); In re E.N.C., 384 S.W.3d at 802.
When a parent challenges the factual sufficiency of the evidence supporting
the trial court’s findings, we review all of the evidence, including disputed or
conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). We should
inquire whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the allegations. In re H.R.M., 209 S.W.3d 105,
108 (Tex. 2006) (per curiam). “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 factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” In re J.O.A., 283 S.W.3d at
345 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). In applying this
standard, our review “must not be so rigorous that the only factfindings that could
withstand review are those established beyond a reasonable doubt.” In re H.R.M.,
209 S.W.3d at 108 (quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)); see also In
re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (stating that we must still provide due
deference to decisions of factfinder, which had full opportunity to observe witness
testimony and was sole arbiter of assessing witness credibility and demeanor).
14 B. Factors Relevant to Best Interest Determination
“[T]he prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a)
(West Supp. 2017). There is a strong, but rebuttable, presumption that the best
interest of a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d
112, 116 (Tex. 2006) (per curiam); see TEX. FAM. CODE ANN. § 153.131(b) (West
2014); Jordan v. Dossey, 325 S.W.3d 700, 729 (Tex. App.—Houston [1st Dist.]
2010, pet. denied) (noting that parent-child relationship has constitutional
underpinnings, but courts must not sacrifice child’s emotional and physical interests
“merely to preserve that right”).
The Texas Legislature has set out several factors that courts should consider
in determining whether a child’s parent is willing and able to provide the child with
a safe environment, including: (1) the child’s age and physical and mental
vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the
magnitude and frequency of harm to the child; (4) whether the child has been the
victim of repeated harm after the initial intervention by DFPS; (5) the willingness of
the child’s family to seek out, accept, and complete counseling services; (6) the
willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable period of time; and (7) whether the child’s
family demonstrates adequate parenting skills, including providing the child with
15 minimally adequate health and nutritional care, care consistent with the child’s
physical and psychological development, guidance and supervision consistent with
the child’s safety, a safe physical home environment, and an understanding of the
child’s needs and capabilities. TEX. FAM. CODE ANN. § 263.307(b).
The Texas Supreme Court has also set out several non-exclusive factors that
we should consider when determining whether the termination of a parent’s rights is
in the child’s best interest, including (1) the child’s desires; (2) the child’s current
and future physical and emotional needs; (3) the current and future physical danger
to the child; (4) the parental abilities of the person seeking custody; (5) whether
programs are available to assist the person seeking custody in promoting the best
interests of the child; (6) the plans for the child by the person seeking custody; (7) the
stability of the home; (8) the acts or omissions of the parent that may indicate the
parent-child relationship is not proper; and (9) any excuse for acts or omissions of
the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re A.C., 394
S.W.3d 633, 641–42 (Tex. App.—Houston [1st Dist.] 2012, no pet.). These factors
are not exhaustive, and it is not necessary that DFPS prove all of these factors “as a
condition precedent to parental termination.” In re C.H., 89 S.W.3d at 27. The
absence of evidence concerning some of the factors does not preclude a factfinder
from forming a firm belief or conviction that termination is in the children’s best
interest. In re A.C., 394 S.W.3d at 642.
16 Proof concerning the statutory predicate findings under section 161.001(b)(1)
does not relieve DFPS of its burden of proving that termination is in the children’s
best interest, but “the same evidence may be probative of both issues.” In re C.H.,
89 S.W.3d at 28. The best-interest analysis may consider circumstantial evidence,
subjective factors, and the totality of the evidence as well as the direct evidence. In
re B.R., 456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.). “A trier of
fact may measure a parent’s future conduct by his past conduct and determine
whether termination of parental rights is in the child’s best interest.” Id.; see In re
C.H., 89 S.W.3d at 28 (stating that past performance as parent “could certainly have
a bearing on [parent’s] fitness to provide for” child, and courts should consider prior
history of child neglect in best-interest analysis). Although evidence concerning
placement plans and adoption of the children are relevant to a best interest finding,
the lack of evidence concerning definitive placement plans is not dispositive. In re
C.H., 89 S.W.3d at 28 (“[T]he inquiry is whether, on the entire record, a factfinder
could reasonably form a firm conviction or belief that termination of the parent’s
rights would be in the child’s best interest—even if the agency is unable to identify
with precision the child’s future home environment.”).
C. Analysis
DFPS presented evidence that Father has a lengthy history with the
Department, including referrals involving his older children who are not the subjects
17 of the underlying proceedings. See id. (noting that parent’s prior history of child
neglect is factor relevant to best interest finding); In re E.A.F., 424 S.W.3d 742, 751
(Tex. App.—Houston [14th Dist.] pet. denied) (“A parent’s past behavior is
indicative of the quality of future care that the parent is capable of providing.”);
Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 619–20 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied) (considering parent’s past history with
Florida CPS as evidence of lack of parenting abilities).
One of the referrals to DFPS involved a report that Father’s older children
were found sitting unsupervised in the middle of a street, where they were nearly hit
by an oncoming car. With regard to the children involved in the present case, DFPS
received a report that Wesley was found crawling in the street, and it received
referrals that Luke frequently escaped the house without Mother and Father noticing
and that, on one occasion, he was hit by a car, although he was not seriously injured.
DFPS also received multiple referrals concerning the cleanliness of Mother’s and
Father’s home, as well as the lack of safety features intended to keep the children
from surreptitiously leaving the house, although the caseworkers noted that, during
the pendency of DFPS’s investigation, Mother and Father did make some progress
in remedying these deficiencies. See In re J.M., 156 S.W.3d 696, 707 (Tex. App.—
Dallas 2005, no pet.) (stating that physical danger to children “now and in the future”
was shown by father’s “inability to keep a house safe for the children”).
18 The record also included evidence concerning the severe injuries that Luke
suffered when handcuffs became locked around his ankles and Mother and Father
were unable to find the key to open the handcuffs. Mother stated that they did not
immediately seek medical attention or call first responders because they already had
an open DFPS case stemming from Luke’s earlier escape from the house that led to
his being hit by a car, and they knew it would appear as though they had abused
Luke. Instead of immediately seeking help, Mother and Father tried several methods
of removing the handcuffs, including using an electric grinder, which caused further
injuries to Luke’s ankles, and they did not seek medical attention for several days
after the incident, when Luke’s injuries had become infected. See In re C.H., 89
S.W.3d at 28 (noting that father had failed to arrange medical care for child’s mother
during her pregnancy and failed to provide medical care for child); In re C.A.J., 122
S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) (stating that courts may
consider parent’s inability to provide adequate care and poor judgment when
determining best interest).
The attending physician at Texas Children’s Hospital noted that Luke’s
injuries were severe enough that a plastic surgery consultation was necessary, as
there was a possibility that he might need skin grafts, and the physician also noted
that Luke had a new fracture to his left shoulder and a healing fracture to his right
arm, both of which were indicative of physical abuse. See In re J.D., 436 S.W.3d
19 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (considering injuries child
suffered while in parent’s care and stating that factfinder may infer from parent’s
past inability to meet child’s physical and emotional needs that parent would be
unable or unwilling to meet those needs in future). Mother pleaded guilty to the
offense of injury to a child arising out of this incident, and, at the time of the final
hearing, Father was awaiting trial on the same charge.
DFPS presented Luke’s and Wesley’s medical records, which demonstrated
that both children had special needs. Luke had been diagnosed with ADHD and he
also had several learning disabilities, and Wesley had been diagnosed with cerebral
palsy. Wesley’s medical records reflected health issues from birth, including
suffering from a pulmonary hemorrhage, several seizures, developmental delay, and
gross motor delay. Wesley’s medical records also indicated that Mother and Father
had been told that, given his health issues, Wesley needed follow-up appointments
with cardiology and neurology specialists, but Mother and Father repeatedly delayed
making those necessary appointments for Wesley. See In re C.H., 89 S.W.3d at 28.
Gomez, the DFPS caseworker, testified that both Luke and Wesley were
receiving therapy and had made progress during their foster-care placements and
that Nathan and Samantha, the two youngest children, were physically healthy and
developmentally “on target.” “When children are too young to express their desires,
the fact finder may consider that the children have bonded with the foster family, are
20 well-cared for by them, and have spent minimal time with a parent.” In re J.D., 436
S.W.3d at 118; In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.]
2003, pet. denied). Here, at the time the trial court named DFPS the temporary
managing conservator of the children in August 2016, the court ordered that neither
Mother nor Father should have any visits with the children “until further order of the
court.” The record contained no indication that, as of the time of the final hearing in
January 2018, Father had had any visitation with the children. A permanency report
dated December 4, 2017, and admitted into evidence at the final hearing, stated that
the children were doing well in their current foster placements, they were bonded
with their caregivers, and they enjoyed their visits with each other. See In re D.M.,
452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.) (considering, in
assessing child’s physical and emotional needs, that child was “healthy, happy, and
well-adjusted” after approximately eighteen months in care of foster family).
DFPS also presented evidence that although Mother and Father had both
completed a parenting course, as required by their respective family service plans,
Father, in particular, had not completed several other requirements listed in his
service plan. See In re E.A.F., 424 S.W.3d at 752 (stating that, in assessing best
interest, courts may appropriately consider whether parent complied with court-
ordered family service plan for reunification with child). Gomez testified that Father
had not maintained contact with DFPS, he had not participated in individual
21 counseling, he had not completed a psychosocial assessment, he had not provided
proof of legal employment or stable housing, and he had not participated in “regular”
drug testing. See In re C.A.J., 122 S.W.3d at 893 (stating that “[w]ithout stability,
income, or a home,” parent was unable to provide for child’s emotional and physical
needs); see also In re J.D., 436 S.W.3d at 120 (stating that stability of proposed
home environment is important consideration in determining best interest); In re
E.A.F., 424 S.W.3d at 752 (noting that parent performed some court-ordered
services, but did not establish that he maintained stable housing and employment).
Gomez testified that Father had participated in sporadic drug testing throughout the
pendency of the case, and, on one occasion, he tested positive for marijuana usage.
See In re D.R.A., 374 S.W.3d 528, 536 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) (considering failed drug test, among other factors, as evidence that parent-child
relationship was not appropriate).
Gomez further testified that terminating Mother’s and Father’s parental rights
to the children was in their best interest, stating:
It’s in their best interest due to the fact that they are now being taken care of and not neglected as previous CPS investigations have found. They are being provided all of the needs that they need, including therapeutic needs, stable housing, clothes. They’re clean. The children have progressed a lot. [Luke] is speaking a lot more. [Wesley] has learned to walk. [Wesley] is speaking a lot more. The children are going to be in a home free from drug use and abuse—physical abuse.
22 See In re E.A.F., 424 S.W.3d at 752 (considering fact that child was healthy and
doing well in foster home even though that was not potential adoptive placement).
Gomez stated her belief that DFPS had a “good chance” of finding an adoptive home
for the children if the court terminated Mother’s and Father’s parental rights.
McCartney, an expert in child welfare and placements, testified that it was in the
best interest of the children to remain in their current placements until DFPS could
find a family willing to adopt all four children and that was able to care for two
children with special needs. She emphasized that although Wesley was in a different
placement from Luke, Nathan, and Samantha at the time of the final hearing, the
children should be kept together for their final placement.
Father argues that DFPS failed to present factually sufficient evidence to
support the trial court’s best interest finding. Specifically, he argues that the trial
court failed to recognize that the children “have a natural connection to their mother
and father”; that the trial court “effectively severed the natural connection these
children enjoy with their extended family,” such as Grandfather and his fiancée, and
severing these familial ties was not in their best interest; that terminating Father’s
parental rights denied the children “consistency, familiarity, and bonding”; and that
the children should not “have been deprived of the continued opportunity to bond
with their father.”
23 Although there is a strong presumption that the best interest of a child is served
by keeping the child with a parent, that presumption is rebuttable. See TEX. FAM.
CODE ANN. § 153.131(b); In re R.R., 209 S.W.3d at 116. As this Court has previously
noted, although we must recognize the constitutional underpinnings of the parent-
child relationship, we must not sacrifice the emotional and physicals interests of a
child “merely to preserve that right.” See Jordan, 325 S.W.3d at 729. Here, DFPS
put on ample evidence that the emotional and physical interests of these children
would best be served by terminating Father’s parental rights. Father displayed a
pattern of neglecting his children by failing to provide safe and clean housing and
failing to adequately supervise his children, requiring repeated DFPS intervention.
Father also demonstrated an unwillingness to seek necessary medical attention for
his children, as indicated by the long delay in following up with specialists
concerning Wesley’s serious health needs and by his failure to seek immediate
assistance for Luke’s injuries after his ankles were trapped in handcuffs.
Father completed the parenting course required by his family service plan, but
he did not complete any of his other required services. There is no indication in the
record that Father possesses the parenting abilities or is willing to seek assistance
from the Department or other support organizations to acquire the skills needed to
raise his four young children, two of whom have special needs and require ongoing
therapy. See In re U.P., 105 S.W.3d at 231 (considering fact that father had not
24 shown how he intended to care for child with special medical needs); see also In re
J.E.M.M., 532 S.W.3d 874, 888–89 (Tex. App.—Houston [14th Dist.] 2017, no pet.)
(stating that parent’s failure to complete clinician’s treatment recommendations was
some evidence “that she did not take advantage of the services the Department
offered and so casts some measure of doubt on her parenting abilities”). Father
asserts that he has a bond with his children, but that bond alone does not outweigh
the evidence presented by the Department supporting the trial court’s determination
that terminating Father’s parental rights was in the children’s best interest.
In addressing the Holley factors and arguing that there is factually insufficient
evidence to support the best interest finding, Father repeatedly points out that DFPS
has not yet identified the children’s potential adoptive caregivers, and therefore
consideration of the children’s future needs, future dangers to the children, parenting
abilities of future caregivers, plans for the children by future caregivers, and stability
of the proposed future home is speculative and uncertain. See Holley, 544 S.W.2d at
372 (listing factors courts have considered in determining best interest). The Texas
Supreme Court has pointed out that the focus of the best-interest inquiry is whether
there is sufficient evidence that termination of the parent’s parental rights would be
in the child’s best interest; the lack of evidence concerning a definite placement for
the children is not dispositive. See In re C.H., 89 S.W.3d at 28. The fact that DFPS,
at the time of the final hearing, had not yet identified adoptive caregivers for the
25 children does not outweigh the evidence that termination of Father’s parental rights
is in the children’s best interest. See In re E.A.F., 424 S.W.3d at 752 (upholding
finding that termination of parental rights was in child’s best interest even though
child’s current foster home was not potential adoptive placement).
Viewing the evidence in a neutral light, as we must, we conclude that the trial
court reasonably could have formed a firm belief or conviction that termination of
Father’s parental rights was in the children’s best interest. See In re J.O.A., 283
S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. We hold that factually sufficient
evidence supports the trial court’s finding that termination of Father’s parental rights
was in the children’s best interest.
We overrule Father’s sole issue.
Conclusion
We affirm the decrees of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Bland, and Lloyd.