Opinion issued February 14, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00834-CV ——————————— IN THE INTEREST OF T.R. AND P.H., CHILDREN
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2017-03365J
MEMORANDUM OPINION
Appellant, T.D.M. (“Mother”), challenges the trial court’s decree terminating
her parental rights to two of her minor children.1 In her sole issue on appeal, Mother
1 For purposes of this Opinion, we will refer to the children by the aliases “Troy” and “Paul.” Their older sister and brother, both minors who are not the subjects of this appeal, will be “Tara” and “Tim.” Their adult brother will be “Trey.” See TEX. R. APP. P. 9.8(c)(2). contends that the evidence was legally and factually insufficient to support the trial
court’s finding that termination of her parental rights was in the children’s best
interest. We affirm.
BACKGROUND
Mother has five children: a 19-year-old adult son, Trey; a sixteen-year-old
daughter, Tara; a thirteen-year-old son, Tim; a five-year-old son, Troy; and a one-
year-old son, Paul. At the time of trial, Tara was living with a relative, Tim was in
a residential treatment center, and Troy and Paul, the subjects of this appeal, were
together in a foster home. Trey was living with his girlfriend’s family.
History with the Department
The family has a long history with the Department of Family and Protective
Services (“the Department”). In 2008, the Department received a referral with
allegations of neglectful supervision of Trey, Tara, and Tim. Tim, a toddler at the
time, was found wandering in the apartment complex. The children had been left
with an aunt, and the Department concluded that there was no evidence to prove
Mother was at fault.
In 2010, the Department received allegations that Mother had physically
abused Tim and that he had multiple bruises to his lower back, arms, and legs
because of being spanked. The family acknowledged the allegation and the
Department considered it substantiated.
2 In 2016, the Department again received allegations of neglectful supervision
of Trey, Tara, and Tim. The allegations included domestic violence by Mother’s
boyfriend that involved firing a weapon and threatening to kill Mother and the
children. The allegations were not validated because the Mother had moved and the
children did not disclose any domestic violence.
In April 2017, the Department received a referral alleging that Mother had
physically abused Tim. Tim reported that Mother smokes “kush” all the time and
becomes very mad. Tim said that she hit him with a hanger and choked him, and
had, in the past, punched him in the face with her fist. In May 2017, the Department
received an intake alleging that Mother bit Tim on the arm and that he had a cigarette
burn on his left arm. And, in June 2017, the Department received a referral alleging
that Tim had been sexually abused by his father and an uncle. 2 The April 2017
referral, followed by the May and June 2017 referrals, gave rise to the Department’s
decision to remove the children.
During the proceedings, Tara’s and Tim’s cases were severed, leaving only
the two youngest children, Troy and Paul, in the present appeal.
2 There is also evidence in the record that Tim, in turn, has sexually abused his younger brother, Troy. 3 Trial
Exhibits
At the commencement of trial, the Department offered several exhibits,
including, Mother’s family service plan, Mother’s 4Cs assessment by Harris County
Protectives Services, Mother’s drugs tests, and a criminal conviction of Paul’s father
for the aggravated assault of Mother.
Mother’s testimony
Mother testified that the Department became involved with the family the
latest time when she got into a physical alteration with Tim. Mother denied choking
him and hitting him with a hanger, but she admitted that she “whopped him with a
belt.” She claimed that she “whopped” him when “he touched [Troy].” She admitted
that she had left bruises and marks on Tim before because of her “whoppings.”
Mother also admitted that she had a positive urine test for methamphetamines,
cocaine, and amphetamines in May 2017, but she claimed that she had only taken
Ecstasy. She also admitted that her hair tested positive for methamphetamines until
October or November of 2017.
Mother acknowledged the 2008 case that the Department had brought after
Tim was found wandering around in the apartment complex when he was a toddler.
Mother claimed that she left the two-year-old child with an aunt who fell asleep,
allowing the child to escape.
4 Mother also testified about the 2010 case that included allegations that Tim
had bruises all over his back, arms, and legs because of being spanked. Mother
acknowledged that Tim’s injuries in 2010 were because she “whopped” him.
Mother discussed the 2016 referral, which began with an allegation that her
boyfriend had fired a weapon at her. Mother denied that her boyfriend had assaulted
her, even though his conviction for doing so was also admitted at trial.
Mother testified about her family services plan. She completed her substance
abuse assessment and her psychosocial assessment. Mother admitted that she had
not completed her individual counseling.
When asked about whether she had stable housing, Mother testified that she
“moved back in with the lady . . . [a]nd she said this time she would say that [the
children] could stay with us.” She acknowledged that she had been living for some
time in a hotel before moving back in with “the lady.”
Mother acknowledged that her psychosocial analysis recommended that she
have increased visitation with her youngest son, Paul, because he was an infant when
removed, and she admitted that she did not take advantage of the visitations that had
been scheduled because she worked.
Mother acknowledged that all the fathers of her children, except the father of
her adult son, had significant criminal histories. She said that she did not think about
5 bringing men with criminal histories into her home with her children, but she
claimed that she was unaware of their criminal records.
The Caseworker’s Testimony
Leshon Rasheed testified that she is the caseworker for all the minor children.
She testified that, at the time of trial, Tim was in a residential treatment center. The
Department was aware that he had sexually abused his younger brother, Troy, and
wanted to get Tim into a specialized placement so that he could receive treatment as
a sexual-assault offender.
Rasheed also testified that Troy and Paul were placed in a foster home where
they were doing well. When Troy was first placed in the home, he had issues with
tantrums, but he was doing much better now. Troy was also receiving therapy as a
sexual abuse survivor. Paul was developmentally on track, and both boys were
bonded to one another and had a good relationship. The foster family hopes to adopt
the two boys.
Rasheed testified that the Department wanted Mother’s parental rights to Troy
and Paul to be terminated because they had been exposed to domestic violence,
physical abuse, drug use, and neglect. She also said that they “would need stability.”
The Department did not seek termination of Mother’s parental rights to Tim,
but it was seeking primary managing conservatorship so that he could receive the
treatment he needed as a sexual-assault perpetrator. Rasheed acknowledged that
6 Tim had “a long road ahead of him as far as the services that he needs,” and that the
Department wanted to continue to provide those services for him. She also
acknowledged that Tim was “quite a bit older than the two little ones” and that “[the
Department] would like to see his progress in [the sex offender program] and
possibly, in the future, if Mom is able to get the help that she needs to reunify with
her.” She also noted that, as a teenager with behavioral issues, Tim was not likely
to be adopted.
Regarding Mother’s service plan, Rasheed said that Mother had not completed
Narcotics Anonymous treatment, as she had claimed. Rasheed said that Mother had
provided attendance logs from April showing that she had attended three meetings.
Mother had not obtained a sponsor, as required.
Rasheed testified that she spoke to “the lady” with whom Mother was living,
and “the lady” did not know about the Mother’s plans to bring the children into the
home. Mother had also not been very forthcoming about when she had lived with
“the lady” and when she had lived in a hotel.
Rasheed testified that Mother visited her children about four times between
August 2017 and April 2018. Beginning in April 2018, Mother began visiting the
children more frequently after it was brought up in mediation that she had not been
doing so. Mother gave Rasheed “a lot of excuses,” but she began to come to visits
when Rasheed would schedule the appointments rather than relying on Mother to do
7 so. When Rasheed began “holding [Mother’s] hand and babysitting her through the
process,” Mother’s visits with the children became more regular. This lack of taking
responsibility for visitation concerned Rasheed. Rasheed said Mother did visit and
bring cake and gifts on the children’s birthdays, and the visits with her were
appropriate and the children appeared to have bonded with her.
Rasheed was concerned that Mother had not made substantial progress and
was “minimizing” why the children came into the Department’s care. Specifically,
Rasheed felt that Mother was minimizing the seriousness of “the whoppings that she
gave her children” and the impact her drug use had on her ability to care for the
children.
Regarding plans for the children, Rasheed had denied a home study on a
woman suggested by Mother because the man in the home refused to allow a
background check to be done. Three months before trial, Paul’s paternal aunt was
suggested as a possible placement, but Rasheed was unable to reach her because the
aunt was away receiving medical care. Rasheed testified that Troy and Paul were
bonded to one another, were in a “healthy and stable home,” and that the foster
parents were willing to adopt if Mother’s parental rights were terminated.
Trial Court’s Ruling
At the end of the trial, the trial court terminated Mother’s parental rights to
Troy and Paul, based on endangering conditions, endangerment, and failure to
8 comply with a court order that established the actions necessary to have the children
returned. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), and (O). The court
further found that termination of Mother’s parental rights was in Troy’s and Paul’s
best interest. See id. § 161.001(b)(2).
This appeal followed.
SUFFICIENCY OF BEST INTEREST FINDING
In her sole issue on appeal, Mother argues that the evidence is legally and
factually insufficient to support the trial court’s finding that termination of her
parental rights to Troy and Paul was in the children’s best interest.
Standard of Review
In a case to terminate parental rights brought by the Department under section
161.001, the Department must establish, by clear and convincing evidence, (1) that
the parent committed one or more of the enumerated acts or omissions justifying
termination and (2) that termination is in the best interest of the child. Id. § 161.001;
In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). “Clear and convincing evidence” is “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; In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
In conducting a legal-sufficiency review in a parental-rights-termination case
brought by the Department under Family Code section 161.001, we must look at all
9 the evidence to determine whether the evidence, viewed in the light most favorable
to the finding, is such that a reasonable factfinder could have formed a firm belief or
conviction about the truth of the matter on which the Department bore the burden of
proof. See In re J.O.A., 283 S.W.3d at 344–45 (quoting In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002)). We “must assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so,” and we “should disregard
all evidence that a reasonable factfinder could have disbelieved or found to have
been incredible.” Id. at 344; Jordan v. Dossey, 325 S.W.3d 700, 712–13 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied).
In conducting a factual-sufficiency review, we view all the evidence,
including disputed or conflicting evidence. See In re J.O.A., 283 S.W.3d at 345. We
should consider whether the disputed evidence is such that a reasonable factfinder
could not have resolved that disputed evidence in favor of its finding. In re J.F.C.,
96 S.W.3d at 266. The evidence is factually insufficient only 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” regarding the finding under review. In re J.O.A.,
283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at 266).
The Department must establish both elements—that the parent committed one
of the acts or omissions enumerated in section 161.001(b)(1) and that termination is
10 in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001; In re C.H., 89
S.W.3d 17, 23 (Tex. 2002). Termination may not be based solely on the best interest
of the child as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987). However, only one predicate finding is necessary
to support a judgment of termination when there is also a finding that termination is
in the child’s best interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Here,
Mother does not challenge the trial court’s findings under subsections
161.001(b)(1)(D), (E), or (O); rather, she challenges the sufficiency of the evidence
supporting the trial court’s finding under section 161.001(b)(2) that termination of
her rights was in the children’s best interest.
Applicable Law
There is a strong presumption that the best interest of the children will be
served by preserving the parent-child relationship. See In re R.R., 209 S.W.3d 112,
116 (Tex. 2006) (per curiam). Prompt and permanent placement of the child in a safe
environment is also presumed to be in the child’s best interest. TEX. FAM. CODE ANN.
§ 263.307(a). In determining whether termination of a mother’s parental rights is in
a child’s best interest, we consider several nonexclusive factors, including (1) the
child’s desires, (2) the current and future physical and emotional needs of the child,
(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
11 seeking custody to promote the best interests of the child, (6) plans for the child by
the person seeking custody, (7) the stability of the home or proposed placement, (8)
acts or omissions of the parent that may indicate that the parent-child relationship is
improper, and (9) any excuse for the parent’s acts or omissions. Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976). The Department is not required to prove all
these factors, and the absence of evidence about some factors does not preclude the
factfinder from reasonably forming a strong conviction that termination is in the
child’s best interest. See C.H., 89 S.W.3d at 27. Evidence establishing one of the
predicate acts under Section 161.001(b)(1) also may be relevant to determining the
child’s best interest. See id. at 27–28.
This is not an exhaustive list, and a court need not have evidence on every
element listed to make a valid finding as to the child’s best interest. In re C.H., 89
S.W.3d at 27. The evidence supporting the statutory grounds for termination may
also be used to support a finding that the best interest of the child warrants
termination of the parent-child relationship. See id. at 28; In re N.R.T., 338 S.W.3d
667, 677 (Tex. App.—Amarillo 2011, no pet.). Furthermore, the best-interest
analysis may consider circumstantial evidence, subjective factors, and the totality of
the evidence as well as the direct evidence. See In re N.R.T., 338 S.W.3d at 677.
12 Analysis
Here, multiple factors support the trial court’s finding that termination was in
the children’s best interest. Troy was five years old and Paul was one year old at the
time of trial. As such, they were too young to express their desires. Although there
is some evidence that they seemed bonded with Mother during her visits, they had
spent very little time with her. See In re J.D., 436 S.W.3d 105, 120 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (“Stability and permanence are paramount in the
upbringing of children.”). Indeed, Paul was an infant when he came into the
Department’s care, and Mother had been inconsistent in exercising her parental
visitation until a few months just before trial. The boys are bonded to one another
and have been in the same foster home together the entire time. The evidence is that
both boys are doing very well in their foster home and that the foster parents would
like to adopt them. See Rogers v. Dep’t of Family & Protective Servs., 175 S.W.3d
370, 378 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) (concluding that
successful foster placement with possibility of adoption supported best-interest
finding); In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied)
(affirming best-interest finding when child was thriving in foster care). This
evidence is relevant to the first, second, and sixth Holley factors and supports the
trial court’s best-interest finding.
13 The evidence presented in support of the endangerment finding also supports
the trial court’s termination decision. See C.H., 89 S.W.3d at 28. The children came
into the Department’s care because of, and Mother admitted to, “whopping” her
children, though most often Tim. There was evidence that Mother minimized the
severity of her “whoppings,” which left bruising and marks. From this, the trial
court could have concluded that Mother’s inappropriately severe physical
punishments reflected both a lack of parenting skills and presented a danger to the
There was also evidence that Mother tested positive for cocaine and
methamphetamine, although she only admitted to taking one Ecstasy pill. She
admitted leaving her children with babysitters when she went out to use drugs. There
was also evidence that, on at least one occasion, she left her children with someone
who allowed a toddler to escape and wander unsupervised through an apartment
complex. See In re W.J.B., No. 01-15-00802-CV, 2016 WL 1267847, at *9 (Tex.
App.—Houston [1st Dist.] Mar. 31, 2016, no pet.) (mem. op.) (stating that “evidence
of past misconduct or neglect can be used to measure a parent’s future conduct”); In
re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)
(parent’s drug use supports finding that termination is in best interest of child). Such
inference is relevant not only to the children’s present and future emotional and
physical needs and dangers but also to the stability of Mother’s home, as contrasted
14 with the stability of the children’s foster home. See In re J.M., No. 01-14-00826-CV,
2015 WL 1020316, at *7 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.)
(mem. op.).
Mother also claimed that she had permission to bring her children into “the
lady’s home,” where presumably she was renting a room. However, when
questioned by Rasheed, “the lady” contradicted that claim. From this evidence, as
well as Mother’s equivocation on the issue of where she had been residing, the trial
court could have concluded that Mother did not have a stable home for the children.
Mother also testified that she “did not think about it” before bringing men
with criminal records into her children’s lives. At least one of the men pleaded guilty
to assaulting her, but she continued to deny that he was abusive. In light of the
above-detailed evidence, the third, fourth, and seventh Holley factors also weigh in
favor of termination.
Nevertheless, Mother argues that because the Department is not seeking
termination of her parental rights in Tim’s case, “the agency clearly believes that
[Mother] is capable of parenting a child who has more special needs than either of
the two children involved in this case . . . “ and that “[t]he only real difference is that
the agency wants to move these children on to adoption and cut the mother’s time
off in this case.” Essentially, Mother is arguing, without authority, that the
Department can never terminate parental rights as to some of Mother’s children
15 without terminating as to them all. That is clearly not the case; we must determine
best interest as it applies to each child and his particular circumstances. The record
makes clear that Tim is not living with Mother and that the Department has no plans
to return him to Mother in the near future. Instead, the Department obtained primary
managing conservatorship of Tim so that it could continue to provide him the
services he needs as a sexual offender. Tim was much older than Troy and Paul, and
though in a residential treatment facility, he was not placed in a foster home that was
meeting his needs. Tim, because of his age and history, was unlikely to be placed
with an adoptive family. And, the Department, though not seeking immediate
termination of Mother’s rights in Tim’s case, did not foreclose that possibility for
the future. Because Tim’s “best interest” is not necessarily the same as Troy’s and
Paul’s “best interest,” the evidence is not legally and factually insufficient simply
because the Department is not presently seeking termination of Mother’s rights in
Tim’s case. Giving Mother “more time” in Tim’s case does not necessarily mean
that the Department must do the same in Troy’s and Paul’s cases. See Wyatt v. Dep’t
of Family & Protective Servs., 193 S.W.3d 61, 69 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (rejecting argument that children’s best interest would be served by
keeping them in foster care indefinitely until reunification could be achieved in lieu
of termination because such indefinite placement “fails to recognize the children’s
need for stability and permanency”).
16 Considering the entire record, we hold that the evidence is legally and
factually sufficient to support the trial court’s finding that termination of Mother’s
parental rights was in Troy’s and Paul’s best interest. We overrule Mother’s sole
issue challenging the sufficiency of the evidence to support the best-interest finding.
CONCLUSION
We affirm the decree terminating Mother’s parental rights to Troy and Paul.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.