Stephanie Mann v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: September 17, 2009
• Docket: 01-08-01004-CV
• Status: Published

Opinion

Opinion issued September 17, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-08-01004-CV

STEPHANIE MANN, Appellant

V.

DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 2007-08235J

MEMORANDUM OPINION

In this accelerated appeal, appellant, Stephanie Mann, challenges the trial court's decree terminating her parental rights to her minor child, C.M., and naming the Department of Family and Protective Services ("DFPS") as C.M.'s sole managing conservator. In three issues, appellant argues that the evidence is legally and factually insufficient to support the trial court's findings under section 161.001. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2009). In her fourth issue, appellant argues that the evidence is legally and factually insufficient to support the appointment of DFPS as the sole managing conservator of C.M. We reverse that portion of the trial court's judgment terminating appellant's parental rights and affirm the portion of the trial court's judgment appointing DFPS sole managing conservator of the child.I. Background

C.M. came into the care of TDFPS on September 24, 2007, just days after he was born. At the time of C.M.'s birth, his older sibling, A.S., was in the care of DFPS due to allegations that appellant left A.S. crying in her bed for hours, attempted to mute A.S.'s cries by placing a pillow over her face, and "yanked the child really hard." Appellant relinquished her parental rights to A.S. and the child was placed in the care of the child's paternal grandmother, where she remained at the time of trial. ⁽¹⁾

DFPS removed C.M. from appellant's care due to risk of physical abuse, as indicated by appellant's alleged abusive conduct toward A.S. At trial, Reneka Dwann Hayes, the DFPS caseworker for C.M, testified that C.M. was also removed because appellant was not participating in the services required for the return of A.S., did not have stable housing at the time of C.M.'s birth, and did not obtain prenatal care for C.M. until she was court-ordered to do so in her seventh month of pregnancy.

Hayes testified that although C.M. was removed from appellant's care due to risk, DFPS determined that the child had not been physically abused or neglected, and in fact, he was clean, healthy, dressed appropriately, and had no marks or bruises when taken into DFPS care. Upon removal, C.M. was placed with a foster family, where he remained until trial.

On November 29, 2007, the Family Service Plan prepared by DFPS for appellant was signed by the trial court. The court also signed additional temporary orders that appellant was to complete in order to obtain the return of C.M. The temporary orders required appellant to: (1) complete a psychological examination and participate in counseling, following all recommendations, (2) complete parenting classes, (3) complete a drug and alcohol assessment and follow all recommendations of the assessment, (4) complete random drug tests, (5) remain drug-free, (6) refrain from engaging in criminal activity, (7) maintain stable housing, (8) maintain stable employment, (9) obtain her G.E.D., (10) successfully complete an anger management program, and (11) complete additional services outlined in the family plan of service. In addition to the court-ordered services, the family plan of service required appellant to participate in all family visits with C.M.

Appellant testified that she completed some of the court-ordered services that were required of her in order to obtain the return of C.M., but she failed to complete others. For instance, appellant completed parenting classes, an anger management program, and participated in individual therapy, though she missed at least ten appointments. By the time of trial, appellant had not obtained her GED as required by the court. She took the GED test once without preparing and subsequently failed, but testified that she was enrolled in preparatory classes to take the test in the future.

Additionally, appellant did not comply with the court's order to refrain from criminal activity. Specifically, appellant admitted drinking alcohol despite being under the legal drinking age. In support of this admission, the evidence contained several pictures from appellant's MySpace page showing appellant drinking or intoxicated. Appellant offered inconsistent testimony about whether these pictures were posted to her MySpace page while C.M. was in the care of DFPS. Appellant initially stated that these photos were taken "about a year" before the trial, though she did not remember if the photos were taken while C.M. was in the care of DFPS. Appellant then testified that the pictures were posted to her MySpace page while C.M. was in DFPS care, and that the pictures were posted a couple of days after they were taken.

Appellant also conceded during trial that because she lived in a dormitory due to her enrollment with the Job Corps training program, she was unable to provide stable housing for C.M. Cheryl Lynn Powers Munson, child advocate for C.M., testified that Job Corps is a program that provides job training for young adults. Munson stated that she made a recommendation to appellant that appellant enroll in the program.

As to her previous employment, appellant testified to working for three different employers and being fired from two of those jobs during the time C.M. was in DFPS's care. Appellant enrolled in Job Corps 11 months after C.M. was removed and three months prior to trial, in order to "better [herself] and [her] child." At the time of trial, appellant was living on campus at the Job Corps facility in San Marcos and made a modest salary. Appellant stated that she would finish the Job Corps program approximately eight months after the trial date and would be employed as a medical assistant upon completing her training.

Finally, appellant offered inconsistent testimony about where she lived from 2006 to the time of trial. For example, appellant testified that she lived with her grandmother continuously from the time DFPS placed her there when she was two years old. However, she also stated that she lived with her sister and the children's father in 2006 and admitted to living in four separate locations in 2007 and sleeping on a couch.

With respect to appellant's visitation of C.M., while C.M. was in DFPS custody, appellant testified that prior to entering the Job Corps program, appellant visited C.M. at the DFPS office twice per month for an hour each visit. Appellant attended all but one of the scheduled visitations during this time. After appellant enrolled in the Job Corps program, however, she had no further visitations with her son, though Hayes indicated that DFPS made C.M. accessible to appellant for visitation during this time. Appellant requested one visitation a week before the trial, but Hayes was unable to arrange the visitation due to scheduling difficulties.

Hayes testified that appellant's visits were "appropriate," though there were times when appellant had trouble calming C.M. when he cried. Hayes stated that she had to "step in" in order to calm C.M. when this occurred. This was denied by appellant, however. Hayes testified further that appellant is not bonded to C.M., and C.M. is not bonded to appellant. Therapist's notes introduced at trial indicated that appellant does not think about C.M.

C.M.'s foster mother testified that, during the time C.M. was in her care, appellant never sent C.M. clothing, food, or letters. She stated that C.M. calls both her and her husband "mama" and "daddy" and considers them to be his family. She explained further that she and her husband love C.M. and wish to adopt him, though they knew when C.M. was placed with them that the placement could be temporary.

Appellant, C.M.'s child advocate, and C.M.'s paternal grandmother (who was previously granted primary managing conservatorship of A.S.) all advocated that appellant's parental rights not be terminated in order to preserve family unity and allow C.M. to have contact with his older sister. Nevertheless, all three persons acknowledged that appellant was unable to care for C.M. at the time of trial. Indeed, the child advocate expressed the opinion that appellant would be unable to care for C.M. one year after trial, and stated that she did not know whether appellant would be able to care for C.M. three years after the trial. Furthermore, C.M.'s paternal grandmother expressed the opinion that appellant was like a child herself and not ready for a child. However, she also stated that appellant had made progress over the past year.

As to whom should be named conservator of C.M., both DFPS and the child advocate suggested that the Department be named sole managing conservator of C.M. However, the two differed as to with whom the child should be placed. DFPS advocated for the child to continue to live with his foster family and be adopted by them, but the child advocate expressed her belief that it would be in the child's best interest to be placed with a family member so that C.M. would be able to maintain contact with his birth family and older sibling. The child advocate completed a home study on Cynthia Ramos, C.M.'s father's cousin, which showed that Ms. Ramos was very eager and able to care for C.M. in the long term. ⁽²⁾ However, the child advocate acknowledged that C.M.'s foster home was "excellent" and that it would be difficult for C.M. to be separated from his foster family. Further, during her testimony, Ms. Ramos acknowledged that she had never met C.M.

Appellant's counsel argued that appellant should be named permanent possessory conservator of C.M., though appellant and her lawyer maintained inconsistent positions on with whom the child should be placed. Appellant testified that she would like for C.M. to be placed with Ms. Ramos until she finished Job Corps training. However, in closing arguments, appellant's counsel argued for C.M. to remain in his foster care placement.

Following the trial, the court granted DFPS's request to terminate the appellant's parental rights with respect to C.M. The court appointed DFPS sole managing conservator of C.M. and ordered that C.M. remain in his foster care placement. The court denied appellant's request to be appointed possessory conservator of C.M.

II. Termination of Parental Rights

In her first three points of error, appellant challenges the legal and factual sufficiency of the evidence supporting the court's findings that (1) appellant engaged in conduct or knowingly placed C.M. with persons who engaged in conduct that endangered his physical or emotional well-being, (2) appellant failed to comply with the provisions of a court order establishing the actions necessary for appellant to obtain the return of C.M., and (3) termination of appellant's parental rights was in the best interest of C.M.

A. Standard of Review

In order to terminate parental rights under section 161.001 of the Family Code, the petitioner must establish that the parent engaged in conduct enumerated in one or more of the subsections of section 161.001(1) and must also show that termination of the parent-child relationship is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (Vernon 2008); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). The petitioner must prove both prongs and may not rely solely on a determination that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

It is well-established that parental rights are of constitutional dimension and are "far more precious than property rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212 (1976)). Because of the great importance of parental rights, grounds for termination must be supported by clear and convincing evidence rather than a mere preponderance. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Clear and convincing evidence refers to a degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the truth of the allegations sought to be proved. In re C.H., 89 S.W.3d at 25.

When reviewing the legal sufficiency of the evidence in a case involving termination of parental rights, we determine whether the evidence is such that a factfinder could reasonably form a belief or conviction that there existed grounds for termination under § 161.001(1) and that termination was in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(1), (2); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In doing so, we examine all evidence in the light most favorable to the finding, assuming that the "factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d at 266. We must also disregard all evidence that the factfinder could have reasonably disbelieved or found to be incredible. Id. However, we must be careful not to disregard all of the evidence that does not support the finding, as doing so could "skew the analysis of whether there is clear and convincing evidence." Id.

When conducting a factual sufficiency review of the evidence in a termination of parental rights case, we examine the entire record to determine whether "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," that the two prongs of section 161.001 were met. See Tex. Fam. Code Ann. § 161.001; id. If the evidence that could not be credited in favor of the finding is so great that it would prevent a reasonable factfinder from forming a firm belief or conviction that either termination was not in the best interest of the child, or none of the grounds under section 161.001(1) were proven, the evidence will be factually insufficient and the termination will be reversed. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d at 266.

B. Texas Family Code section 161.001(1)(O) - Failure to Comply with Court Order

In her second point, appellant contends that the evidence is legally and factually insufficient to support termination of her parental rights under section 161.001(1)(O). Specifically, appellant argues that section 161.001(1)(O) requires the child who is the subject of the suit to have been removed from appellant's care due to abuse or neglect, and appellant contends that there is no evidence indicating that C.M. was removed due to appellant's abuse or neglect.

In order for a court to terminate parental rights under section 161.001(1)(O), the court must find by clear and convincing evidence that the parent "failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child." Tex. Fam. Code Ann. § 161.001(1)(O) (Vernon 2008).

We recently addressed the issue of whether section 161.001(1)(O) requires a showing that the child who is the subject of the termination proceeding was removed due to the abuse or neglect of that child, or whether section 161.001(1)(O) merely requires a showing that the child was removed for any reason. See In re A.A.A., 265 S.W.3d 507, 512-16 (Tex. App.--Houston [1st Dist.] 2008, pet. denied). In In re A.A.A., we reasoned that the legislature used the words "abuse or neglect of the child" in section 161.001(1)(O) for a reason, and we held that the party seeking termination must prove by clear and convincing evidence that the child subject of the suit was removed due to abuse or neglect by the parent. Id. at 514-15. We also cited several opinions from our sister courts holding that section 161.001(1)(O) requires proof that the child was removed due to abuse or neglect. Id. (citing In re S.A.P., 169 S.W.3d 685, 705-706 (Tex. App.--Waco 2005, no pet.); In re K.H., No. 12-05-00077-CV, 2006 WL 3211299, at *5 (Tex. App.--Tyler Nov. 8, 2006, no pet.); In re M.B., No. 12-04-0350-CV, 2005 WL 3201071, at *4 (Tex. App.--Tyler Nov. 30, 2005, no pet.); In re A.C., No. 12-04-00264-CV, 2005 WL 2404108, at *4 (Tex. App.--Tyler Sept. 30, 2005, no pet.); In re M.B., No. 07-04-0334-CV, 2004 WL 2867544, at *2 (Tex. App.--Amarillo Dec. 14, 2004, no pet.)).

With this principle in mind, we now examine the evidence to determine whether it is legally and factually sufficient to conclude that C.M. was removed from appellant due to abuse or neglect, as required under section 161.001(1)(O). See Tex. Fam. Code Ann. § 161.001(1)(O); In re A.A.A., 265 S.W.3d at 515. In our decision in In re A.A.A., we stated that whether a child was removed due to abuse or neglect of the parent should be determined on a case-by-case basis, and we found other cases instructive when making this determination. Id. Thus, we will perform the same analysis here.

The instant case is similar to In re S.A.P., in which the Waco Court of Appeals concluded that there was insufficient evidence to show that the child was removed due to a parent's abuse or neglect. See In re S.A.P., 169 S.W.3d at 706. There, as in this case, the caseworker testified that the child was removed shortly after birth due to risk indicated by the parents' prior conduct, rather than because the child sustained any abuse or neglect. Id. at 696, 705-06. Here, there is evidence that C.M. was removed due to risk rather than his sustaining any actual abuse or neglect. Hayes's testimony and notes reveal that abuse and neglect were both ruled out as indicators of removal. Her notes also show that C.M. was clean, healthy, appropriately dressed, and free of marks or bruises when he was taken into the care of DFPS.

In response to appellant's assertion that there is no evidence in the record that appellant abused or neglected C.M., DFPS contends that appellant's abusive conduct toward A.S. and her failure to comply with the service plan in that case indicate that she jeopardized C.M.'s well-being. DFPS argues that appellant's jeopardizing C.M.'s well-being supports the notion that C.M. was removed from appellant's care due to abuse or neglect. We disagree. While appellant's abusive conduct toward A.S. may indeed have jeopardized C.M.'s well-being and given DFPS reason to remove C.M. under Chapter 262, it is not evidence that C.M. actually sustained abuse or neglect by appellant. Further, though a parent's abusive conduct toward an older sibling may be evidence of endangering conduct toward a younger sibling under § 161.001(1)(E), it does not demonstrate that the parent engaged in abusive or neglectful conduct toward the younger sibling, as required under section 161.001(1)(O). See Cervantes-Peterson v. Dep't. of Family and Protective Servs., 221 S.W.3d 244, 253 (Tex. App.--Houston [1st Dist.] 2006, no pet.); In re D.M., 58 S.W.3d 801, 811 (Tex. App.--Fort Worth 2001, no pet.).

In support of its contention that a parent's conduct toward others in the home jeopardizes a child's well-being and indicates that the parent engaged in abusive or neglectful conduct toward the child who was removed, DFPS refers to two cases. In the first, In re J.S.G., the court held that the parent's neglect of an older child could indicate that "the physical and emotional needs of [the younger siblings] were jeopardized." See In re J.S.G., No. 14-08-00754-CV, 2009 WL 1311986, at *7, *9 (Tex. App.--Houston [14th Dist.] May 7, 2009, no pet.). In the second, In re J.F.C., children were removed due to risk indicated in part by the parents' history of violence toward each other and toward other children in the home. See In re J.F.C., 96 S.W.3d at 270-71. However, both of these cases discuss the parents' conduct and the resulting effects on the child's well-being as they relate to the best interest determination under section 161.001(2) of the Family Code, not whether the child was abused or neglected under § 161.001(1)(O). See In re J.S.G., 2009 WL 1311986, at *7-*10; In re J.F.C. 96 S.W.3d at 270-72. Therefore, these cases are distinguishable and do not support removal under section 161.001(1)(O). Tex. Fam. Code Ann. § 161.001(1)(O). Thus, appellant's abusive acts toward A.S. cannot be considered as evidence that she abused or neglected C.M. for the purposes of section 161.001(1)(O).

The only indication that C.M. was removed for reasons other than appellant's conduct toward A.S. comes from Hayes's testimony. Specifically, Hayes testified that C.M. was removed because of (1) appellant's failure to obtain prenatal care until she was court-ordered to do so in the seventh month of pregnancy, (2) appellant's failure to comply with the service plan that was court-ordered in A.S.'s case, and (3) appellant's failure to secure housing at the time of C.M.'s birth. While all of these factors may indicate risk to C.M. if he were to remain under appellant's care, they do not indicate that appellant abused or neglected C.M., leading to his removal. First, although a failure to seek prenatal care may be an indication of the quality of treatment the child will receive after being born, we can find no caselaw and DFPS directs us to no caselaw holding that a parent's failure to seek prenatal care is evidence of abuse to the child. Second, a parent's failure to participate in services that were court-ordered following the removal of her first child may be an indication that there is risk to the younger child due to the parent's not having remedied the problems that brought the first child into DFPS care, but it does not indicate that the parent actually abused or neglected the younger child. Third, the record does not indicate that appellant moved frequently during the short time she had possession of C.M., or that C.M. was exposed to unsafe or unsanitary living conditions, although it does indicate that Appellant and C.M. were living with appellant's maternal grandmother when C.M. was removed. Therefore, Hayes's testimony does not provide evidence that C.M. was removed due to abuse or neglect by appellant, as required under section 161.001(1)(O).

Our review of the record indicates that there was no evidence that appellant abused or neglected C.M., causing him to be removed from her care. As we discussed, appellant's failure to obtain prenatal care, her failure to comply with the service plan for A.S.'s case, her failure to secure her own housing, and her abusive conduct toward A.S. do not provide evidence that appellant abused or neglected C.M. Further, the evidence shows that (1) C.M. was removed due to risk rather than abuse or neglect to C.M., (2) abuse and neglect toward C.M. were ruled out as indicators of removal, and (3) C.M. showed no signs of abuse or neglect at the time of removal. Viewing this evidence in the light most favorable to the trial court's ruling, we conclude that a reasonable factfinder could not have formed a firm belief or conviction that C.M. was removed due to abuse or neglect by appellant, as required to support termination under section 161.001(1)(O). Consequently, we hold that the evidence is legally insufficient to support termination of appellant's parental rights to C.M. under section 161.001(1)(O).

C. Texas Family Code section 161.001(1)(E) - Conduct Which Endangers the Child

In her first point, appellant contends that there was no evidence that she or anyone else engaged in conduct which endangered the physical or emotional well-being of C.M., and therefore the evidence is legally and factually insufficient to support the trial court's finding that she endangered C.M. under section 161.001(1)(E). See Tex. Fam. Code Ann. § 161.001 (1)(E).

When determining whether a parent engaged in conduct that endangers a child, courts must examine the parent's conduct alone, including the parent's acts and omissions. In re J.W., 152 S.W.3d 200, 205 (Tex. App.--Dallas 2004, pet. denied) (citing In re D.J., 100 S.W.3d 658, 662 (Tex. App.--Dallas 2003, pet. denied); In re D.M., 58 S.W.3d 801, 811 (Tex. App.--Fort Worth 2001, no pet.)). This includes conduct both before and after the birth of the child who is the subject of the suit. Id. (citing In re D.M., 58 S.W.3d at 812). Further, the court may consider parental conduct that is not directed at the child and does not result in actual harm to the child. In re D.M., 58 S.W.3d at 811. When determining whether a parent's conduct endangers a child, courts must ask whether the conduct is such that it exposes the child to loss or injury, or jeopardizes the child's well-being. Tex. Dep't. of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Additionally, to support termination under section 161.001(1)(E), the State must prove that the parent engaged in a "voluntary, deliberate, and conscious course of conduct" that endangers the child, rather than a single endangering act or omission. Ruiz v. Tex. Dep't. of Family and Protective Servs., 212 S.W.3d 804, 815 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (citing In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.--Fort Worth 2003, no pet.)).

1. Abusive Conduct Toward C.M.

In her first point of error, appellant contends that there is no evidence that she or anyone else engaged in conduct that endangered the physical or emotional well-being of C.M. In support of this contention, appellant points to evidence that DFPS ruled out abuse and neglect toward C.M., C.M. was removed based on risk, and C.M. was clean and healthy with no marks or bruises when taken into care. As we discussed earlier, we do not find anything in the record to contradict the evidence that C.M. was removed due to risk rather than his sustaining any abuse or neglect. Therefore, there is no evidence that appellant engaged in endangering conduct under section 161.001(1)(E) by abusing or neglecting C.M. However, there is other evidence in the record that is relevant to determining whether appellant engaged in conduct that may have endangered C.M. We now examine this evidence.

2. Conduct Toward A.S.

We have held that "the manner in which a parent treats other children in the family can be considered in deciding whether that parent engaged in a course of conduct that endangered the physical or emotional well-being of a child." Cervantes-Peterson v. Tex. Dep't. of Family and Protective Servs., 221 S.W.3d 244, 253 (Tex. App.--Houston [1st Dist.] 2006, no pet.). A number of our fellow courts of appeals have also held that evidence of a parent's endangering conduct toward other children or family members is relevant to a determination of whether the parent engaged in behavior that endangered the child subject of the suit. See, e.g., In re Baby Boy R., 191 S.W.3d 916, 925 (Tex. App.--Dallas 2006, pet. denied) (holding that a parent's guilty plea of aggravated sexual assault of his step-daughter was evidence of conduct endangering to the well-being of his unborn child); In re W.J.H., 111 S.W.3d 707, 716 (Tex. App.--Fort Worth 2003, pet. denied) (holding that abusive conduct toward other children "can be used to support a finding of endangerment even against a child who was not yet born."); In re D.L.N., 958 S.W.2d 934, 939 (Tex. App.--Waco 1997, pet. denied) (holding that a parent's neglect of older children could indicate that the child the subject of the suit "would face this type of treatment in the future if returned" to the appellant). Thus, any abusive or neglectful conduct by appellant toward C.M.'s older sibling, A.S., is relevant in an inquiry to determine whether appellant's parental rights to C.M. should be terminated under section 161.001(1)(E).

Appellant contends that there is only limited evidence that she engaged in abusive conduct toward A.S. Appellant states that her denials of the behavior, coupled with C.M.'s paternal grandmother's testimony that appellant never admitted to her that she engaged in abusive conduct, support the finding that appellant never abused A.S.

Our review of the record indicates that by her own admission, appellant told the child advocate, Hayes, and the court that she had engaged in abusive conduct toward A.S. The child advocate testified that appellant "admitted on three separate occasions that she told her [A.S.] to 'shut the fuck up' and that she grabbed her around her torso and squeezed her." It is not clear from the record whether the child advocate meant that appellant made these admissions on three separate occasions or that appellant engaged in the abusive conduct on three separate occasions. Appellant contends that the child advocate meant that appellant made the admissions on three separate occasions, and DFPS does not dispute this interpretation. Further, based on the placement of the word "that" in the child advocate's sentence, we interpret the testimony to mean that appellant made the admissions on three separate occasions, rather than appellant engaged in the conduct on three separate occasions.

Appellant points to her testimony at trial, wherein she denied harming A.S., as evidence that she did not engage in conduct that endangered C.M. Although appellant's denial weighs somewhat against her prior admissions, the trial court could have reasonably disbelieved the denial considering other inconsistencies in her testimony (i.e., testifying that she attended every counseling appointment, but then admitting that she missed at least one; testifying that she lived with her grandmother throughout the duration of the case, but then testifying that she lived at a number of other residences; testifying that she complied with her service plan but later testifying that she did not maintain stable housing or employment). Furthermore, the trial court could have reasonably disbelieved C.M.'s paternal grandmother's testimony that appellant never admitted to her that she harmed A.S. in light of appellant's admissions to the caseworker, court, and child advocate. This supports the trial court's finding that appellant engaged in physically abusive conduct toward A.S., which could be considered by the trial court in its determination that appellant engaged in conduct which endangers C.M. Thus, looking at the evidence in the light most favorable to the trial court's finding, a reasonable factfinder could have formed a firm belief or conviction that appellant engaged in abusive conduct toward A.S. on one occasion, thereby endangering the physical or emotional well-being of C.M. See Cervantes-Peterson, 221 S.W.3d at 253.

3. Underage Drinking

Responding to appellant's contention that there is no evidence that she engaged in endangering conduct under section 161.001(1)(E), TDFPS directs us to evidence that appellant engaged in underage drinking in violation of the court's order that she refrain from criminal conduct.

Appellant's testimony, as well as pictures from appellant's MySpace page, indicate that appellant drank alcohol in violation of the court order that she refrain from criminal activity. In her testimony, appellant admitted to drinking despite knowing that she is younger than the legal drinking age. Appellant admitted to drinking at her sister's house and her admission was confirmed by two pictures from appellant's MySpace page. The pictures were captioned, "At Ashley House Dranking it Up [sic]," and "Me Helping Ashley Stand Up, Were Both Drunk [sic]." Furthermore, there were several photographs from appellant's MySpace page showing her at a local bar. Appellant admitted to going to the bar, but said that she was not drinking when she went. However, three of the pictures showing appellant at the bar were captioned, "Me Dancing my ass off, I can dance when I drunk [sic]," "Yall see how much we Dranked plus the one's that droped on the floor [sic]," and "We were all fucked up." This evidence could lead a reasonable factfinder to firmly believe that appellant engaged in underage drinking on these two occasions, despite knowing that she was under the legal drinking age.

The evidence at trial also indicated that appellant engaged in this underage drinking during the time that C.M. was in the care of DFPS. Although appellant testified that she could not remember if the photos were taken while C.M. was in DFPS care, appellant also testified that the pictures were taken "about a year" before trial, and the record reveals that C.M. was taken into care approximately 13 months prior to trial. Furthermore, appellant stated that the pictures were posted to her MySpace page while C.M. was in DFPS care and the pictures were posted a couple of days after they were taken. This could lead a reasonable factfinder to conclude that appellant engaged in underage drinking during the time C.M. was in the care of DFPS.

We have held that a parent's engaging in illegal conduct despite knowing that his or her parental rights are in jeopardy is evidence of endangering conduct under section 161.001(1)(E). See Robinson v. Tex. Dep't. of Family & Protective Servs., 89 S.W.3d 679, 686-87 (Tex. App.--Houston [1st Dist.] 2002, no pet.) (holding mother's continued illegal drug use despite knowing that doing so violated the terms of her family service plan was evidence of endangering conduct); In re J.N.R., 982 S.W.2d 137, 142 (Tex. App.--Houston [1st Dist.] 1998, no pet.) (holding father's continued illegal activity, resulting in three arrests and jail time, knowing his parental rights were in jeopardy, was evidence of a course of endangering conduct). However, in those cases the parent had a long history of illegal conduct that endangered the child. (i.e., 20 years of illegal drug use by the appellant in Robinson and multiple arrests of the father in In re J.N.R.). See Robinson, 89 S.W.3d at 687; In re J.N.R., 982 S.W.2d at 142. In contrast, the evidence here does not indicate that appellant had a long history of illegal conduct that resulted in incarceration or that had the effect of endangering a child. The evidence reveals only two occasions in which appellant engaged in underage drinking, and does not reveal that she had a drinking problem that she failed to remedy. Therefore, although the evidence indicates that appellant engaged in criminal conduct knowing that her parental rights were in jeopardy, it does not demonstrate that appellant engaged in illegal activities of the degree or frequency that we have previously held to be endangering conduct under section 161.001(1)(E). This bears on whether appellant engaged in a course of endangering conduct as required under Ruiz. See Ruiz, 212 S.W.3d at 815.

4. Failure to Obtain Prenatal Care

In reply to appellant's assertion that there is no evidence that appellant engaged in endangering conduct, DFPS points to the fact that appellant did not obtain prenatal care for C.M. until she was court-ordered to do so. DFPS contends that this is evidence that appellant engaged in conduct that endangered C.M.'s physical or emotional well-being. However, we can find no caselaw in which an appellant's failure to obtain prenatal care was held to be evidence of endangering conduct under section 161.001(1)(E). In fact, the Fourteenth Court of Appeals has held that evidence that a mother "took pre-natal vitamins during her pregnancy undermines the argument that she consciously engaged in a course of conduct that endangered her children's well-being." In re A.S., 261 S.W.3d 76, 87 (Tex. App.--Houston [14th Dist.] 2008, pet. denied). In the instant case, the evidence is undisputed that appellant took prenatal vitamins prior to obtaining prenatal care. This weakens DFPS's argument that appellant engaged in a course of conduct which endangered C.M. under section 161.001(1)(E). See id.

5. Failure to Secure Safe and Stable Housing

DFPS also suggests that appellant engaged in a course of conduct that endangered C.M. under section 161.001(1)(E) because appellant failed to comply with the court order to secure safe and stable housing. We disagree.

By her own admission, appellant failed to maintain stable housing for a period of at least six months. Indeed, appellant testified to living in four separate residences in 2007 alone. However, the evidence introduced at trial does not indicate whether appellant failed to maintain stable housing when she had A.S. or C.M. in her possession, or whether her failure to maintain stable housing occurred only after the children had been removed. Although the evidence shows that appellant was living with her maternal grandmother for the few days she had possession of C.M., it does not indicate whether this housing was inappropriate, unsanitary, or whether appellant moved frequently when C.M. was in her care. Furthermore, the State did not introduce any evidence as to how the housing situation endangered C.M. Similarly, the evidence does not show whether appellant's housing situation was unsafe, unsanitary, unstable, or otherwise endangered A.S. prior to her removal from appellant's custody. Therefore, it is impossible to determine from the record whether appellant's failure to maintain stable housing occurred while she had custody of either of her children, and if it did, whether it had the effect of endangering the children.

A parent's failure to maintain stable housing when she has care, custody, and control of her children is relevant to the determination of whether the parent engaged in conduct which endangers her children under section 161.001(1)(E). See In re M.N.G., 147 S.W.3d 521, 536, 538 (Tex. App.--Fort Worth 2004, pet. denied) (holding that "conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child," and that the mother's "difficulty maintaining a stable home" was evidence of endangering conduct to the child); In re J.M.M., 80 S.W.3d 232, 242 (Tex. App.--Fort Worth 2002, pet. denied) (holding that mother's history of "engaging in a transient lifestyle" and frequent moves with the children was evidence of endangering conduct). However, the cases that have held a parent's failure to maintain stable housing to be endangering conduct involve the parent's failure to provide stable housing to her children when they were in the parent's care. See In re M.N.G., 147 S.W.3d at 536-38; In re J.M.M., 80 S.W.3d at 242. We can find no cases in which a parent's failure to maintain stable housing after the child's removal was held to be evidence of endangering conduct under section 161.001(1)(E). In this case, the evidence indicates that appellant failed to maintain stable housing following the removal of C.M. The evidence does not indicate, however, that appellant failed to maintain safe and stable housing while A.S. and C.M. were in her care, endangering C.M. and A.S.'s well-being. Therefore, a reasonable factfinder could not firmly believe that appellant's failure to maintain stable housing following the removal of her children amounted to conduct endangering their physical or mental well-being under section 161.001(1)(E).

6. Ceasing Visitation

In its reply to appellant's contention that there was no evidence that appellant engaged in endangering conduct to C.M., DFPS points to evidence that appellant ceased visiting C.M. in violation of the court-ordered service plan.

The evidence is undisputed that appellant did not visit C.M. in the three months prior to the trial, when appellant was enrolled in the Job Corps program in San Marcos. Hayes testified that DFPS would have been "open to" visitation during this time, had appellant requested it. It is undisputed that appellant requested one visit, approximately one week prior to the trial, but DFPS was unable to arrange the visit due to scheduling difficulties.

DFPS refers us to In re U.P. in support of its contention that appellant's failure to visit C.M. in the last three months of the case was conduct that endangered the child. See In re U.P., 105 S.W.3d 222, 236 (Tex. App.--Houston [14th Dist.] 2003, pet. denied). Indeed, a parent's absence from a child's life is conduct that endangers a child's emotional well-being. See id. (holding that the father's drug dealing, which led to him being incarcerated for 12 months and left an "emotional vacuum" in the child's life, was endangering conduct). However, in the current case, appellant failed to visit her child for three months, far less than the 12 months the father was absent from his child's life in In re U.P. Id. Further, appellant's absence was due to her enrolling in the Job Corps program in an attempt to "better [herself] and [her] child," which is quite different than incarceration, which caused the father's absence in In re U.P. Id. Because appellant's missed visitations with her child were due to a worthwhile pursuit rather than incarceration and were for a much shorter period of time than the father's absence in In re U.P., we do not find In re U.P. persuasive in the instant case. Therefore, appellant's failure to visit C.M. in the last three months of the case does not rise to a level that would constitute endangering conduct under section 161.001(1)(E).

7. Failure to Comply with Court-Ordered Service Plan

TDFPS also points to appellant's failure to comply with her court-ordered service plan as evidence that appellant engaged in endangering conduct under section 161.001(1)(E). Specifically, TDFPS refers us to evidence that appellant violated the court-ordered service plan by failing to maintain stable housing, engaging in underage drinking, and ceasing visitations with C.M.

TDFPS directs us to In re R.F. in support of its contention that a parent's failure to complete a service plan is conduct that endangers a child under section 161.001(1)(E). See In re R.F., 115 S.W.3d 804, 811 (Tex. App.--Dallas 2003, no pet.). There, the Dallas court held that a mother engaged in conduct that endangered her child under section 161.001(1)(E), and discussed the mother's failure to complete her service plan in its analysis of the mother's endangering conduct. Id. However, the court reasoned that the mother's failure to comply with her service plan was an indication of her failure to remedy mental health and substance abuse problems. Id. The court held that these mental health and substance abuse problems were endangering conduct under section 161.001(1)(E). Id. The court did not hold that the mother's failure to complete her service plan, in and of itself, was evidence of endangering conduct. Id. Therefore, we cannot say that In re R.F. stands for the proposition that a parent's failure to comply with a service plan alone is evidence of endangering conduct under section 161.001(1)(E). Indeed, to hold that a parent's failure to complete a service plan is evidence of conduct that endangers a child would blur the distinction between sections 161.001(1)(E) and (1)(O). Thus, we do not consider appellant's failure to comply with her court-ordered service plan to be evidence of endangering conduct under section 161.001(1)(E).

8. Course of Endangering Conduct

Viewing the evidence in the light most favorable to the trial court's judgment and disregarding all evidence the factfinder could have reasonably disbelieved or found incredible, we hold that a reasonable factfinder could not have formed a firm belief or conviction that appellant engaged in a course of conduct that endangered her son. As we have discussed, appellant's failure to secure stable housing, her failure to obtain prenatal care, and her failure to visit her son during the last three months of the case do not rise to the level of conduct that endangers a child. Also, appellant's failure to complete her service plan does not amount to conduct that endangers a child. The evidence does reveal that appellant engaged in underage drinking and admitted to multiple persons that she engaged in abusive conduct toward A.S. A reasonable factfinder could firmly believe that appellant engaged in the abusive conduct toward A.S. on one occasion, and that appellant engaged in underage drinking on two occasions. This does not, however, amount to a course of endangering conduct, which is required in order to prove that a parent engaged in conduct which endangers a child under section 161.001(1)(E). See Ruiz, 212 S.W.3d at 815. The evidence does not indicate that appellant engaged in abusive conduct toward A.S. more than once, or that she had a long history of underage drinking. Because the evidence reveals only these few incidents, and does not indicate a history or pattern of endangering conduct by appellant, a reasonable factfinder could not firmly believe that appellant engaged in a course of conduct that endangers a child under section 161.001 (1)(E). Therefore, we hold that the evidence is legally insufficient to support the trial court's finding that appellant engaged in conduct described by section 161.001 (1)(E).

D. Best Interest of the Child

We need not examine whether it was in C.M.'s best interest for appellant's parental rights to be terminated since termination of parental rights must be supported by evidence that the parent engaged in conduct enumerated in at least one of the subsections of section 161.001(1) as well as evidence that termination would be in the child's best interest. Tex. Fam. Code Ann. § 161.001 (Vernon 2008); Richardson v. Green, 677 S.W.2d at 499. Because we hold that the evidence is legally insufficient to support the trial court's findings that appellant engaged in conduct described under sections 161.001(1)(E) and (O) of the Texas Family Code, we reverse that portion of the trial court's decree terminating appellant's parental rights to C.M.

III. Conservatorship of the Child

In her fourth issue, appellant questions the legal and factual sufficiency of the evidence supporting the appointment of DFPS as the sole managing conservator of C.M. Appellant concedes that she is unable to care for C.M. as the child's sole managing conservator and instead requests that the court appoint Cynthia Ramos, C.M.'s father's cousin, as C.M.'s sole managing conservator. Appellant also requests that she be appointed possessory conservator of C.M., a request she made at trial, but was denied. If we do not affirm the judgment of the trial court with regard to conservatorship, appellant requests that we remand the case to the trial court in order to conduct an evidentiary hearing on the issue.

A. Appointment of TDFPS as Sole Managing Conservator

The termination of parental rights and the appointment of a non-parent as sole managing conservator are two separate and distinct issues, each requiring different elements to be proven, different standards of proof, and different standards of review. Compare Tex. Fam. Code Ann. § 161.001 with Tex. Fam. Code Ann. § 153.131(a) (Vernon 2008); See also Earvin v. Dep't. of Family & Protective Servs., 229 S.W.3d 345, 351 (Tex. App.--Houston [1st Dist.] 2007, no pet.); In re J.A.J., 243 S.W.3d 611, 615-17 (Tex. 2007); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

There is a rebuttable presumption that it is in a child's best interest for his parents to be named his joint managing conservators. Tex. Fam. Code Ann. § 153.131(b) (Vernon 2008). In order to rebut this presumption and appoint someone other than a parent as sole managing conservator of the child, a court must find that appointment of a parent would "significantly impair the child's physical health or emotional development." Tex. Fam. Code Ann. § 153.131(a) (Vernon 2008); In re J.A.J., 243 S.W.3d at 616. Additionally, "[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship[.]" Tex. Fam. Code Ann. § 153.002 (Vernon 2008). Unlike the standard of proof for termination of parental rights, the findings necessary to appoint a non-parent as sole managing conservator need only be established by a preponderance of the evidence. Tex. Fam. Code Ann. § 105.005 (Vernon 2008); In re J.A.J., 243 S.W.3d at 616.

Likewise, the standard of review for the appointment of a non-parent as sole managing conservator is less stringent than the standard of review for termination of parental rights. In re J.A.J., 243 S.W.3d at 616. We review a trial court's appointment of a non-parent as sole managing conservator for abuse of discretion only. Id. (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Therefore, we will reverse the trial court's appointment of a non-parent as sole managing conservator only if we determine that it is arbitrary or unreasonable. Id.

In conformity with the statutes governing conservatorship, the trial court made several findings. Specifically, the trial court found that (1) the appointment of appellant as managing conservator of C.M. would not be in the child's best interest because the appointment would significantly impair C.M.'s physical health or emotional development, (2) it would not be in C.M.'s best interest to appoint a relative or another person as managing conservator, and (3) the appointment of DFPS as C.M.'s sole managing conservator was in the child's best interest.

Appellant admits that she is unable to care for C.M. and does not request that she be named C.M.'s sole managing conservator. Instead, appellant argues that there are no facts to support the finding that it would not be in C.M.'s best interest to appoint Ramos as his sole managing conservator. Appellant asserts that the appointment of Ramos as sole managing conservator is in C.M.'s best interest and points to the evidence that (1) the child advocate recommended that C.M. be placed with Ramos, (2) appellant and the paternal grandmother believed that Ramos provided the best placement for C.M., (3) the home study on Ramos showed that she was more than capable of taking care of C.M., and (4) the child advocate, appellant, and the paternal grandmother wanted C.M. to be placed with Ramos so that he could maintain contact with A.S. and his extended birth family.

Although this evidence indicates that C.M. would have been provided with a safe and loving home with Ramos, there was other evidence in the record to show that C.M. was doing well with his foster family and it was in his best interest to remain with them. Testimony indicated that C.M. was bonded to his foster family, called his foster parents "mama" and "daddy," and thought of them as his family. The foster mother testified that she loved C.M. as one of her own children and wanted to care for him in the long-term. Further, the child advocate testified that the foster home was "excellent," and that it would be difficult for C.M. to be removed from the foster home, where he had lived since he was only a few days old. Moreover, Ramos testified that she had never met C.M. This evidence provides support for the trial court's ruling that it would be in C.M.'s best interest for DFPS to serve as his sole managing conservator so that he could remain with his foster family. For the foregoing reasons, the trial court's decision with regard to conservatorship was not arbitrary or capricious, and the evidence was legally and factually sufficient to support the appointment of DFPS, rather than Ramos, as C.M.'s sole managing conservator. Therefore, we affirm that portion of the trial court's judgment with regard to conservatorship.

B. Appellant as Possessory Conservator

At trial, appellant's attorney argued for appellant to be named possessory conservator of C.M., which the trial court denied. Appellant now asks this court to appoint her possessory conservator in light of our reversal of that portion of the trial court's judgment terminating her parental rights. However, appellant's statement of appellate points did not include a statement of her intent to appeal the trial court's refusal to appoint her possessory conservator.

According to Texas Family Code section 263.405(I), "[t]he appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial." Tex. Fam. Code Ann. § 263.405(i) (Vernon 2008). Because appellant did not include the trial court's refusal to appoint her possessory conservator in her statement of appellate points or in any other statement combined with a motion for a new trial, we may not consider whether the trial court's refusal to appoint appellant as possessory conservator was proper. ⁽³⁾ See In re G.B., 264 S.W.3d 742, 742 (Tex. 2008); Bermea v. Tex. Dep't. of Family & Protective Servs., 265 S.W.3d 34, 38 (Tex. App.--Houston 2008, pet. denied); Pool v. Tex. Dep't. of Family & Protective Servs., 227 S.W.3d 212, 215 (Tex. App.--Houston [1st Dist.] 2007, no pet.).

Conclusion

For the foregoing reasons, we reverse that portion of trial court's judgment terminating appellant's parental rights and affirm the portion of the judgment of the trial court with regard to conservatorship of C.M.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Jim Sharp and Taft. ⁽⁴⁾

1. The court terminated the parental rights of the father of both A.S. and C.M., and the father has not appealed.

2.

C.M.'s paternal grandmother stated that she would like for C.M. to be placed with her, but acknowledged that she did not have the financial ability to care for both children. She requested that C.M. be placed with Ms. Ramos instead of herself.

3. We

take notice of the recent decision by the Fort Worth Court of Appeals declaring Texas Family Code § 263.405(I) unconstitutional on the ground that it violates the Separation of Powers Clause of the Texas Constitution. In re D.W., 249 S.W.3d 625, 640 (Tex. App.--Fort Worth 2008, pet. denied). The Supreme Court denied review, explicitly stating that it expressed no opinion as to the constitutionality or unconstitutionality of the statute. In re D.W., 260 S.W.3d 462, 462 (Tex. 2008). In the instant case, appellant has not asked us to review the constitutionality of section 263.405(I).

4.

The Honorable Tim Taft, retired justice, Court of Appeals for the First District of Texas, participating by assignment.