Date: 04-02-2015

Case Style: In the Interest of T.L.R and T.J.R., Children

Case Number: 14-14-00812-CV

Judge: Marc W. Brown

Court: Texas Court of Appeals, Fourteenth Court of Appeal from 314th District Court of Harris County

Plaintiff's Attorney: Sandra D. Hachem for Texas Department of Family and Protective Services

Defendant's Attorney: William B. Connolly for Stacey Lynn Albretson

Description: S.D.A. (the Mother) appeals from the decree terminating her parental rights
to her Children, T.L.R. and T.J.R. (the Children).1 The Mother raises three issues
challenging the legal and factual sufficiency of the evidence supporting the two
predicate termination grounds recited in the judgment and the trial court’s finding
that termination of the Mother’s parental rights is in the Children’s best interest.
We affirm.
1 To protect the identity of the minors, we have not used the names of the Children,
parents, or other family members. See Tex. R. App. P. 9.8.
2
I. BACKGROUND
The Children at issue in this suit are T.L.R (Tonya) who was born October
27, 2005, and T.J.R. (Troy), who was born October 19, 2006.2 In 2013, the Texas
Department of Family and Protective Services (the Department) received a referral
from neighbors and the manager at the Mother’s apartment complex alleging that
the Mother was starving her Children after Troy, her then six-year-old son, was
found wandering around the complex complaining that he was hungry.
The Department filed suit for protection of the Children on September 16,
2013. That day, the trial court signed an emergency order for protection of the
Children, appointing the Department temporary managing conservator of the
Children. On September 26, 2013, the court conducted a full adversary hearing, at
which the Mother and her appointed counsel appeared. The court found sufficient
evidence to support the Children’s removal from the home, and ordered the
Children to remain in the temporary conservatorship of the Department. The court
ordered the Mother to comply with the Department’s service plan to obtain return
of the Children and warned that the failure to comply could result in the restriction
or termination of parental rights.
On October 17, 2013, the court appointed Child Advocates, Inc. (the
Advocate) as guardian ad litem for the Children. On November 12, 2013, the court
signed additional temporary orders requiring the Mother to complete the services
in the Department’s amended family service plan and setting out specific
requirements for the Mother to obtain the return of the Children. Thereafter, the
trial court conducted regular status and permanency hearings to monitor the
2 The Children’s alleged father named on their birth certificates is deceased. When the
Children were born, the Mother was married to L.C. (the Husband), who was therefore their
presumed father. See Tex. Fam. Code Ann. § 160.204(a)(1) (West 2014). The Mother claimed
the Husband is not the biological father of either child. The parental rights of the Husband and
any unknown father were also terminated, but they are not parties to this appeal.
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Mother’s progress in completing these services and to assess the Children’s
welfare.
Trial to the court was held September 25, 2014. The Department called the
Mother to testify at trial. The Department’s supervisory caseworker, Debra Hatley,
also testified briefly about her opinion that termination would be in the Children’s
best interest because of the Mother’s long history of drug use. The Advocate also
testified about her recommendations for termination of parental rights and
placement of the Children. See Tex. Fam. Code Ann. § 107.002(e) (West 2014)
(setting out the guardian ad litem’s duty to file reports and testify regarding her
recommendations relating to the best interests of the children and the reasons for
the recommendations). In addition, the Children’s half-sister, Jasmine, testified that
she is caring for the Children and wants to adopt them. Finally, the Mother’s
friend, James, testified that he would be able to help support the Mother and the
Children and he would be a role model for Troy. At the conclusion of the trial, the
court granted the Department’s request for termination of the Mother’s parental
rights. On September 29, 2014, the trial court signed a final judgment reciting that
the Mother’s parental rights were terminated based on findings that termination is
in the Children’s best interest and that the Mother committed acts establishing the
predicate termination grounds set out in subsections E and O of Texas Family
Code Section 161.001(1). Tex. Fam. Code Ann. §§ 161.001(1)(E), (O), 161.001(2)
(West 2014). The Department was appointed sole managing conservator of the
Children. Appellate counsel was appointed for the Mother, who filed a timely
notice of appeal.
II. BURDEN OF PROOF AND STANDARDS OF REVIEW
Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1)
of the Family Code; and (2) termination is in the best interest of the child. Tex.
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Fam. Code § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Only
one predicate finding under section 161.001 is necessary to support a judgment of
termination when there is also a finding that termination is in the child's best
interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). Although parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for
courts to recognize the constitutional underpinnings of the parent-child
relationship, it is also essential that emotional and physical interests of the child
not be sacrificed merely to preserve that right.”).
Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).
“Clear and convincing evidence” means “the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West
2014); accord In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof
results in a heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873
(Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental termination
case, we must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d at 344; In re J.F.C.,
96 S.W.3d at 266. We assume that the fact finder resolved disputed facts in favor
of its finding if a reasonable fact finder could do so, and we disregard all evidence
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that a reasonable fact finder could have disbelieved. In re J.O.A., 283 S.W.3d at
344; In re J.F.C., 96 S.W.3d at 266.
We consider and weigh all of the evidence, including disputed or conflicting
evidence, in reviewing termination findings for factual sufficiency of the evidence.
In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed
evidence that a reasonable fact finder could not have credited in favor of the
finding is so significant that a fact finder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” Id. We give due
deference to the fact finder’s findings and we cannot substitute our own judgment
for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The fact
finder is the sole arbiter when assessing the credibility and demeanor of witnesses.
Id. at 109.
III. ANALYSIS
A. The Department’s Failure to Answer Discovery
On September 11, 2014, shortly before the start of trial, the Mother’s
appointed counsel filed a trial brief in which he argued that the Department was
prohibited from introducing evidence or testimony, except from a party, about
matters that were not disclosed in response to the unanswered discovery he had
served on the Department. See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914
(Tex. 1992) (applying former rule 215(5)). The Texas Rules of Civil Procedure
prescribe the penalty for failing to answer or supplement discovery requests.
(a) Exclusion of Evidence and Exceptions. A party who fails to make,
amend, or supplement a discovery response in a timely manner may
not introduce in evidence the material or information that was not
timely disclosed, or offer the testimony of a witness (other than a
named party) who was not timely identified, unless the court finds
that:
(1) there was good cause for the failure to timely make, amend, or
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supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery
response will not unfairly surprise or unfairly prejudice the other
parties.
Tex. R. Civ. P. 193.6(a).
Included in the unanswered discovery were the Mother’s requests for
admissions. See Tex. R. Civ. P. 198.1. If a response to a request for admissions is
not timely served, the request is considered admitted without the necessity of a
court order. Tex. R. Civ. P. 198.2(c). A matter admitted under Rule 198 is
conclusively established unless the court permits the party to withdraw or amend
the admission. Tex. R. Civ. P. 198.3. Withdrawal or amendment may be permitted
if the party shows good cause and the court finds the parties relying on the
admissions will not be unduly prejudiced. Id. 198.3(a), (b). An admission once
admitted, deemed or otherwise, is a judicial admission, and a party may not then
introduce controverting testimony in any legal proceeding related to the action.
Shaw v. Nat’l Cnty. Mut. Fire Ins. Co., 723 S.W.2d 236, 238 (Tex. App.—Houston
[1st Dist.] 1986, no writ).
At a pre-trial hearing, the Department’s “discovery counsel” informed the
court that she had searched the Department’s computer and paper records and
found no evidence that the Department had received any discovery requests from
the Mother’s counsel. The Mother’s counsel provided a fax confirmation showing
that the Department had received the discovery requests, however. The Department
then requested a continuance and leave to answer the requested discovery, arguing
that the failure to answer was an accident or mistake. See Wheeler v. Green, 157
S.W.3d 439, 442 (Tex. 2005) (stating that good cause for withdrawing deemed
admissions “is established by showing the failure involved was an accident or
mistake, not intentional or the result of conscious indifference”). The trial court
denied the requests for a continuance and leave to answer the discovery.
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At the end of the trial, the Mother’s counsel admitted in evidence the
unanswered requests for admissions. The Mother argues on appeal that these
unanswered requests for admissions were deemed against the Department,
conclusively establishing that the Department had no evidence to support
termination of her parental rights.
We first note that the Mother’s requests for admissions included admissions
that the Department had no evidence to support the predicate termination grounds
and best-interest finding. Requests for admission should be used as “a tool, not a
trapdoor.” Marino v. King, 355 S.W.3d 629, 632 (Tex. 2011) (quoting U.S. Fid.
and Guar. Co. v. Goudeau, 272 S.W.3d 603, 610 (Tex. 2008)). When requests for
admissions are used as intended to address uncontroverted matters or evidentiary
issues like the authenticity or admissibility of documents, deeming admissions by
default is unlikely to compromise presentation of the merits of a case. Wheeler,
157 S.W.3d at 443. Requests for admissions were intended to “eliminat[e] matters
about which there is no real controversy” and were “never intended to be used as a
demand upon a plaintiff or defendant to admit that he had no cause of action or
ground of defense.” Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996) (per
curiam) (quoting Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206, 208 (1950)).
But when a party uses deemed admissions to try to preclude presentation of the
merits of a case, due-process concerns arise. See TransAmerican Nat. Gas Corp. v.
Powell, 811 S.W.2d 913, 917–18 (Tex. 1991). “Constitutional imperatives favor
the determination of cases on their merits rather than on harmless procedural
defaults.” Marino, 355 S.W.3d at 634. Absent flagrant bad faith or callous
disregard for the rules, due process bars merits-preclusive sanctions for discovery
abuses. Wheeler, 157 S.W.3d at 443.
Secondly, when unanswered admissions are deemed against a party, the
party relying on the admissions must protect the record by objecting to
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controverting evidence on the facts at issue; otherwise, the admissions are waived.
See Marshall v. Vise, 767 S.W.2d 699, 699 (Tex. 1989); see also Fiebig v. Fiebig,
No. 14-12-01166-CV, 2012 WL 9390623, at *3 (Tex. App.—Houston [14th Dist.]
Oct. 22, 2012, no pet.) (mem. op.) (because the party who relied on deemed
admissions as proof failed to object to admission of an affidavit controverting
matters established by the deemed admissions, he waived his reliance on the
deemed admissions).
The Mother testified at trial and her testimony supported the elements of the
Department’s case. The Mother acknowledged her long history of drug use, her
positive drug tests during the pendency of this case, and her criminal history,
among other matters as more fully set out below. No objections were lodged to the
Mother’s testimony about matters that were not disclosed in discovery. During
trial, the Mother’s counsel made four specific objections to the admission of
evidence that had not been disclosed in discovery. First, the court sustained both
the Mother’s initial objection and subsequently re-urged objection to the
Department’s admission of the results from the Mother’s positive drug tests
because of the Department’s failure to produce them in discovery. In addition, the
court granted the Mother’s request to exclude the testimony of the caseworker
regarding the Mother’s failure to complete the tasks and services required by the
Department’s family service plan because of the unanswered discovery. The
Mother also objected to the Department’s inquiry about her criminal record, but the
objection was overruled. No further objections were lodged to the Department’s
continued questioning about the Mother’s criminal history or any other subjects
related to the Department’s failure to answer the Mother’s discovery.
Therefore, we conclude that the Mother waived the deemed admissions and
the termination findings were not conclusively established against the Department.
See Fiebig, No. 14-12-01166-CV, 2012 WL 9390623, at *3; see also USAA Cnty.
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Mut. Ins. Co. v. Cook, 241 S.W.3d 93, 102 (Tex. App.—Houston [1st Dist.] 2007,
no pet.) (holding the failure to object testimony about the cause of the damage to
the insured’s car waived insurer’s right to rely upon any admissions which were
controverted by testimony admitted at trial without objection).
B. Predicate Termination Findings under Section 161.001(1)
The trial court made predicate termination findings that the Mother had
committed acts establishing the grounds set out in subsections E and O of Family
Code Section 161.001(1), which provide that termination of parental rights is
warranted if the factfinder finds by clear and convincing evidence, in addition to
the best-interest finding, that the parent has:
(E) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional
well-being of the child;
. . . [and]
(O) 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)(E), (O) (West 2014).
C. Endangerment
In her first issue, the Mother asserts that the evidence is legally and factually
insufficient to support the termination of her parental rights due to endangering
conduct under Family Code Section 161.001(1)(E).
“To endanger” means to expose a child to loss or injury or to jeopardize a
child’s emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex.
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1996). Under subsection E, the evidence must show the endangerment was the
result of the parent’s conduct, including acts, omissions, or failure to act. In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Termination
under subsection E must be based on more than a single act or omission; the statute
requires a voluntary, deliberate, and conscious course of conduct by the parent. Id.
A court properly may consider actions and inactions occurring both before and
after a child’s birth to establish a “course of conduct.” In re S.M., 389 S.W.3d 483,
491–92 (Tex. App.—El Paso 2012, no pet.). While endangerment often involves
physical endangerment, the statute does not require that conduct be directed at a
child or that the child actually suffers injury. In re U.P., 105 S.W.3d 222, 233
(Tex. App.—Houston [14th Dist.] 2003, pet. denied). Rather, the specific danger to
the child’s well-being may be inferred from parents’ misconduct alone. Tex. Dep’t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129
S.W.3d 732, 738–39 (Tex. App.—Fort Worth 2004, pet. denied).
a. Parental Drug Use
Endangerment under subsection E may include evidence of drug use and its
effect on a parent’s life and ability to perform the duties of a parent. See In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“It necessarily follows that the
endangering conduct may include . . . evidence of drug usage.”); see also In re
U.P., 105 S.W.3d 222, 234 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). A
parent’s drug use can qualify as a voluntary, deliberate, and conscious course of
conduct endangering the child’s well-being. In re C.A.B., 289 S.W.3d 874, 885
(Tex. App.—Houston [14th Dist.] 2009, no pet.). Proof of a parent’s pattern of
illegal drug use constitutes endangering parental conduct because it exposes a
parent to incarceration or impairment. In re D.J.W., 394 S.W.3d 210, 221 (Tex.
App.―Houston [1st Dist.] 2012, pet. denied). Drug addiction and its effect on a
parent’s life and ability to parent may establish an endangering course of conduct.
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Asjes v. Tex. Dep’t of Protective & Regulatory Servs., 142 S.W.3d 363, 370 (Tex.
App.—El Paso 2004, no pet.).
The Mother admitted she had been using drugs for the past sixteen to
seventeen years. The Mother also admitted she tested positive for illegal drugs
several times during the pendency of these proceedings after the Children were
removed from her care. Continued illegal drug use after a child’s removal is
conduct that jeopardizes parental rights and may be considered as establishing an
endangering course of conduct. Cervantes–Peterson v. Tex. Dep’t of Family &
Protective Servs., 221 S.W.3d 244, 253–54 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (en banc). The Mother acknowledged she tested positive for cocaine on
September 9, 2013, around the time that this suit was filed. The Mother also
admitted that she used cocaine around the time of the full adversary hearing on
September 26, 2013, but she did not remember the results of the test conducted that
day. She also admitted that her drug tests on November 12, 2013, and March 11,
2014 were positive for cocaine. In addition to cocaine, the Mother also admitted
using marijuana and K-2, synthetic marijuana, although she acknowledged that
cocaine was her drug of choice. She testified that she last used drugs on April 26,
2014, before she entered an inpatient drug treatment program. She acknowledged
another positive hair follicle test on June 19, 2014, but she was not sure if the
positive result was from her prior use before entering treatment.
Although the Mother claimed that she did not use illegal drugs after her
release from rehabilitation, she later acknowledged that she took drugs again after
her release. This testimony is inconsistent with her testimony that she last used
drugs before she entered inpatient treatment in April 2014. The Mother admitted
that the Children were in the Department’s custody because she tested positive for
cocaine. The Mother agreed she had a drug problem, but testified she was in
recovery at the time of trial and asserted that she remained drug-free. In support of
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her claim, she provided negative results from urinalyses performed on May 8, June
16, and June 18, 2014, which were admitted in evidence. She testified she had
completed a two-month inpatient drug treatment program. We note that these
negative tests were during the time the Mother was engaged in inpatient drug
treatment. No tests were provided after the Mother’s release from rehabilitation.
The Mother stated she is committed to staying sober and has enrolled in outpatient
treatment. She provided a log showing her attendance at meetings and counselling
sessions from May 3, 2014, through June 18, 2014. No evidence that the Mother
participated in therapy, counseling, or meetings after her release from inpatient
treatment was included, however.
The Mother acknowledged that she had been treated for her drug use three
times during the past seventeen years and had relapsed three times. She explained
that she had maintained her sobriety for a four-year period once, but she had
relapsed after the Children’s father died on June 8, 2007, when the Children were
both very young. She acknowledged that she was not “there for [the Children].”
Before her drug rehabilitation treatment in 2014, she was last treated in 2011. She
testified that in the past, she had remained sober after drug treatment for only a
month or two. She claimed that this time would be different because she is engaged
in a 12-step program to address her dependency.
The Mother claimed the Children were not with her when she used drugs;
they were with family or a babysitter. She acknowledged, however, that she
returned home after using drugs, and did not deny that she was under the influence
of drugs when the Children were present. The Mother also claimed she had not
used cocaine while pregnant.
b. Criminal Activity and Incarceration
The Mother admitted having several criminal convictions from 1999 until
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2009, including five convictions for prostitution, one for manufacture and delivery
of a controlled substance, and one for possession of a controlled substance. She
testified that in 2008, she was sent to jail, and the Children lived with her mother.
Her most recent conviction was for prostitution on May 10, 2009.
While a parent’s incarceration, standing alone, will not prove endangerment
under subsection E, it is a factor for consideration by the trial court on the issue of
endangerment. Boyd, 727 S.W.2d at 533–34; Asjes, 142 S.W.3d at 370. If the
evidence of criminal behavior, including imprisonment, shows a course of conduct
that endangers the physical or emotional well-being of the child, a finding under
subsection E is supported. Id.; see also In re M.R., 243 S.W.3d 807, 819 (Tex.
App. Fort—Worth 2007, no pet.) (recognizing continued criminal conduct and
repeated incarceration may be part of a continuing course of conduct that is
endangering under subsection E).
The Mother admitted at trial that she frequently left the Children in the care
of others while she used drugs and while she was incarcerated. She acknowledged
that she was “not there” for the Children. During one of these periods when the
Mother’s actions caused the Children to live with a relative, the Mother
acknowledged that it was alleged that her Husband had sexually assaulted Tonya.
It is beyond question that sexual abuse is conduct that endangers a child’s physical
or emotional well-being. In re R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth
2004, pet. denied). The Mother said the incident occurred when the Children were
living with their grandmother, who permitted them to visit her Husband’s mother.
The Mother testified that she had separated from her Husband in 1999 and she
would not have allowed her Husband to be around the Children. She said if she
saw her Husband, she would call the police because she wanted him brought to
justice for what he did to her daughter.
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c. Instability and Neglect
Endangerment to a child’s well-being may be inferred from parental
misconduct, including conduct that subjects the child to a life of uncertainty and
instability. Boyd, 727 S.W.2d at 533; In re S.M., 389 S.W.3d at 492. The Mother
acknowledged that she left the Children with relatives or babysitters while she used
drugs. She also left the Children with her mother when she was incarcerated. The
Mother also stated that she had been treated for her drug addiction three times and
the trial court could infer that she was absent from the Children’s lives while in
treatment. The Children’s older half-sister, Jasmine, testified that Tonya told her
she did not feel safe with her Mother and the Children often got hurt when they
were with her.
In addition to her drug use, criminal history, and unstable lifestyle, the
Mother demonstrated her neglect in caring for the Children by allowing her then
six-year-old son to wander the apartment complex alone. Neglect “can be as
dangerous to the well-being of a child as direct physical abuse.” In re M.C., 917
S.W.2d at 270. A parent’s failure to adequately protect or supervise young children
supports a finding of endangerment. In re M.D.V., No. 14-04-00463-CV, 2005 WL
2787006, at *5 (Tex. App.—Houston [14th Dist.] Oct. 27, 2005, no pet.) (mem.
op.). The Mother acknowledged that the Department became involved with her
Children after her son Troy was found walking around the complex by himself. In
addition, neighbors were alarmed when Troy claimed to be hungry and they feared
the Mother was starving the Children. The Mother denied these allegations. She
explained that she lacked transportation to take Troy to school after he was
suspended from riding the bus. She claimed that Troy left the apartment without
her knowledge while she slept.
In sum, the Mother’s drug use, criminal history including incarceration,
unstable lifestyle, and neglect of her Children support the trial court’s finding of
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endangerment under subsection E. See Tex. Fam. Code Ann. § 161.001(1)(E).
Therefore, we overrule the Mother’s first issue.
Having determined that the evidence is sufficient to support the trial court’s
finding on the statutory ground in subsection E, we need not consider whether the
evidence would support subsection O, the other predicate ground for termination
challenged in the Mother’s second issue. See In re A.V., 113 S.W.3d at 362
(affirming termination decree based on one predicate without reaching second
predicate found by the trier of fact and challenged by the parent).
C. Best-Interest Finding Under Section 161.001(2)
In her third issue, the Mother asserts the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental
rights is in the Children’s best interest. The primary focus of parental-rights
termination proceedings is protecting the best interest of the Children. In re A.V.,
113 S.W.3d at 362. We review the entire record in deciding a challenge to the
court’s best-interest finding. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There
is a strong presumption that the best interest of a child is served by keeping the
child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006);
In re D.R.A., 374 S.W.3d at 533. 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) (West 2014).
Courts may consider the following nonexclusive factors in reviewing the
sufficiency of the evidence to support the best-interest finding, including: the
desires of the child; the present and future physical and emotional needs of the
child; the present and future emotional and physical danger to the child; the
parental abilities of the persons seeking custody; the programs available to assist
those persons seeking custody in promoting the best interest of the child; the plans
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for the child by the individuals or agency seeking custody; the stability of the home
or proposed placement; acts or omissions of the parent which may indicate the
existing parent-child relationship is not appropriate; and any excuse for the
parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
The Department need not provide evidence relating to all of the Holley factors to
support termination, and the absence of some factors does not bar the factfinder
from finding that termination is in the Children’s best interest. In re C.H., 89
S.W.3d at 27.
1. Present and Future Physical and Emotional Danger to the Children
We begin our analysis by noting that evidence supporting termination under
one of the grounds listed in section 161.001(1) can also be considered in support of
a finding that termination is in the best interest of the child. See In re C.H., 89
S.W.3d at 27 (holding the same evidence may be probative of both section
161.001(1) grounds and best interest). Evidence of endangerment supports the trial
court’s finding that termination is in the best interest of the child. In re U.P., 105
S.W.3d 222, 231 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). It is
therefore appropriate to consider at the outset the evidence recited above relevant
to endangerment.
The Mother admitted to a sixteen to seventeen-year history of drug use,
including three failed attempts at rehabilitation. She acknowledged her numerous
positive drug tests, including those after the Children were removed from her care.
She also acknowledged that the Department expressed concern because of her
history of drug use and the potential to endanger the Children. A parent’s drug use
supports a finding that termination is in the best interest of the child. See In re
M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). The factfinder
can give “great weight” to the “significant factor” of drug-related conduct. In re
K.C., 219 S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.); see also In re
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J.N.H., No. 02–11–00075–CV, 2011 WL 5607614, at *8 (Tex. App.—Fort Worth
Nov. 17, 2011, no pet.) (mem. op.) (considering a parent’s criminal and drug
histories in affirming a trial court’s decision that termination was in the best
interest of a child).
In addition, the Mother has a criminal history involving illegal drugs and
engaging in prostitution. The Mother had not provided a stable environment for her
Children. She frequently left them with relatives when she was in jail or using
drugs. Her lack of supervision may have contributed to the sexual assault of her
daughter.
Department supervisor Hatley testified at trial that she believed it would be
in the Children’s best interest to terminate the Mother’s parental rights based on
her admission of drug use for many years. The factfinder may infer from past
conduct endangering the child’s well-being that similar conduct will recur if the
child is returned to the parent. In re M.R.J.M., 280 S.W.3d at 502.
James, who referred to himself as the Mother’s “close friend,” testified that
he was committed to helping the Mother stay sober. James testified he had
motivated the Mother to get into drug treatment. He did not think termination of
the Mother’s parental rights would be in the Children’s best interest. He testified
that the Mother is on “the right path to get it together.”
While the Mother completed inpatient substance abuse treatment, she had
only been released from treatment for three months at the time of trial. She
admitted that she had relapsed after drug treatment three times in the past. The
factfinder may determine that a parent’s changes shortly before trial are too late to
have an impact on the best-interest determination. See In re Z.C., 280 S.W.3d 470,
476 (Tex. App.—Fort Worth 2009, pet. denied). In addition, although the Mother
claimed that this time would be different from her previous relapses, the trial court,
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as the fact finder, evaluated the Mother’s credibility. We may not disturb the trial
court’s credibility determination, a matter solely within the fact finder’s province.
See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
The evidence related to the physical and emotional danger to the Children
supports the trial court’s best-interest finding.
2. Stability of the Parent’s Lifestyle
A child’s need for permanence through the establishment of a “stable,
permanent home” has sometimes been recognized as the paramount consideration
in a best-interest determination. See In re K.C., 219 S.W.3d at 931. Evidence of a
parent’s unstable lifestyle also can support a factfinder’s conclusion that
termination of parental rights is in the child’s best interest. In re S.B., 207 S.W.3d
877, 887 (Tex. App.—Fort Worth 2006, no pet.). Lack of stability, including a
stable home, supports a finding that the parent is unable to provide for a child’s
emotional and physical needs. See In re G.M.G., 444 S.W.3d 46, 59–60 (Tex.
App.—Houston [14th Dist.] 2014, no pet.); see also Doyle v. Tex. Dep’t of
Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000,
pet. denied) (holding that a parent’s failure to provide a stable home and provide
for a child’s needs contributes to a finding that termination of parental rights is in
the child’s best interest). A parent who lacks stability, income, or a home is unable
to provide a child’s physical and emotional needs. See In re C.A.J., 122 S.W.3d
888, 894 (Tex. App.―Fort Worth 2003, no pet) (evidence sufficient to support
best interest finding when mother admitted inability to care for child and no stable
source of income or stable home).
The Mother had not provided a stable environment for her Children. She
frequently left them with relatives when she was in jail, using drugs, or in drug
treatment. There also is no evidence in our record about where the Children were
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when the Mother engaged in prostitution. The Mother acknowledged that she was
dependent on her boyfriend James for financial support. The Mother first called
James her “spouse,” then called him her “boyfriend,” and said they had been dating
for about a year. She testified James does not live with her. At the time of trial, the
Mother had only part-time employment. With the financial support from James and
the Children’s benefits as a result of their father’s death, she testified she would be
able to support the Children.
There is no evidence in the record regarding whether the Mother had
maintained a stable residence for any extended period of time. The Mother testified
that she had her own apartment and it is appropriate for the Children, claiming that
it is “safe” and “stable.” She had only been released from drug treatment for three
months, however, and the record does not reflect when the Mother obtained the
apartment. In addition, there is no other evidence about the suitability of the
Mother’s living arrangements.
3. Compliance with Family Service Plan
It was also appropriate for the trial court to evaluate whether the Mother
completed her court-ordered service plan for reunification with the Child in
reaching its best-interest determination. See In re E.C.R., 402 S.W.3d at 249
(stating findings under subsection O can support the best interest finding). The
Mother acknowledged receiving the plan and signing the service plan at the
beginning of the case. She stated she had successfully completed her family service
plan. While she was aware of the services that were required, the Mother did not
enter treatment for her drug dependency until this case had been on file more than
seven months. The Mother provided a certificate stating she entered treatment on
April 28, 2014, and successfully completed Intensive Residential Treatment at
ADA Women’s Center on June 26, 2014. She testified she was currently enrolled
in outpatient treatment. There was no evidence that the Mother complied with the
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recommendation that she undergo family counselling to improve her parenting
skills. The Mother admitted she was aware the plan required that she not use illegal
drugs. Contradicting her testimony that she had complied with her service plan, the
Mother acknowledged that she knew her continued drug use would cause the
Children to stay in the Department’s care and could result in termination of her
parental rights, but she had done it anyway.
The record reflects that the Mother had limited visitation with the Children
during the year and a half that they had been removed from her home. The Mother
testified she had attended all the visits with the Children that the Department
permitted, and that the Children want to live with her. She described the sadness
she and the Children experienced when the visits ended.
The record evidence relating to the Mother’s employment history is limited
and of short duration. When she was first released from drug rehabilitation therapy,
the Mother worked at Popeye’s, then she got a better job working part-time at
Fiesta. The Mother’s pay stubs were admitted in evidence. While working at
Popeye’s, the Mother earned $7.25 per hour and worked 23.8 hours the week of
July 14, 2014, for a net payment of $144.35. She also provided records showing
she was paid $173.28 the week of July 28, 2014. The records show the Mother
only worked 8.73 hours at Popeye’s during the last pay period ending August 24,
2014. The Mother’s earning statement for her September 4, 2014, paycheck from
Fiesta showed that the Mother earned $7.50 per hour and she worked 15.3 hours,
with a net payment of $105.98 for a one-week period. She said the job has the
potential to become full time with benefits. The Mother testified that she loved her
job and was doing well.
The Mother testified she had obtained a job at Popeye’s after her release
from drug treatment three months before trial and she worked at Popeye’s for
about five weeks. Therefore, at most, the Mother was employed at Fiesta for less
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than two months at the time of trial. The payment record from Fiesta that the
Mother provided only covered one week at the end of August, one month before
trial. The record reflects the Mother worked fewer hours at Fiesta, earning less than
she had at Popeye’s. Our record contains no other evidence related to the Mother’s
employment history. There is no evidence regarding whether the Mother had
previously maintained stable employment or earned sufficient income to support
her Children.
The Mother testified she also receives financial support from her boyfriend,
James, whom she had been dating for over a year. She was still legally married, but
she claimed she had not seen her Husband since 1999. He is not the Children’s
father. The Mother testified James provides about 75% of her financial support.
She testified the Children receive social security benefits due to the death of their
father. She would be able to support the Children with the addition of the death
benefits. She said it would not be in their best interest to lose their Mother after
they already lost their father.
The Mother asserted she loves her Children. She provided photographs
showing her visiting the Children who smiled and hugged her. When considering
the best interest of a child, “[s]ometimes, love is not enough,” however. J.D.S. v.
Tex. Dep’t of Family Protective Servs., No. 08-14-00191-CV, 2014 WL 4745794,
at *10 (Tex. App.—El Paso Sept. 24, 2014, no pet.) (mem. op.); see also In re
M.D.V., No. 14-04-00463-CV, 2005 WL 2787006, at *7 (“Although appellant
emphasizes that she is a loving parent and has not committed any overt acts of
physical abuse, her purported concern is outweighed by the emotional and physical
danger to the children caused by her drug use and failure to supervise them.”).
While the Mother had demonstrated some progress in addressing her drug
dependency, the fact finder may have determined that the Mother’s efforts were
too late to overcome years of drug use and neglect so as to have an impact on the
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best-interest determination. See In re Z.C., 280 S.W.3d at 476. Stability and
permanence are paramount in the upbringing of children. In re T.D.C., 91 S.W.3d
865, 873 (Tex. App.—Fort Worth 2002, pet. denied). A parent’s failure to show
that she is stable enough to parent a child for any prolonged period entitles the trial
court “to determine that this pattern would likely continue and that permanency
could only be achieved through termination and adoption.” In re B.S.W., No. 14-
04-00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston [14th Dist.] Dec.
23, 2004, no pet.) (mem. op.). We conclude the evidence related to the Mother’s
lack of stability supports the trial court’s best-interest finding.
4. Children’s Desires, Needs, and Proposed Placement
The stability of the proposed home environment is an important
consideration in determining whether termination of parental rights is in the
Children’s best interest. See J.N.R., 982 S.W.2d 137, 143 (Tex. App.—Houston
[1st Dist.] 1998, no pet.). Therefore, evidence about the present and future
placement of the Children is relevant to the best-interest determination. See C.H.,
89 S.W.3d at 28. Plans for adoption are relevant, but evidence about definitive
plans are not required to find termination or parental rights is in the Child’s best
interest. Id.
The Children’s older sister, Jasmine, who was twenty-one years old, testified
the Children had been with her for a month and were doing well. Jasmine has a job
and is able to support the Children. They had been in the same foster home before
coming to live with her. Troy was doing better in school and controlling his ADHD
with medication. Tonya followed her around and said living with her was “like a
dream,” and if she could not live with her Mother, she would live with her sister
instead of in a foster home. Jasmine testified that the Children told her they would
rather live with her than with their Mother. Tonya told Jasmine she did not feel
safe with her Mother and the Children got hurt too many times when they were
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with her. One of the Mother’s boyfriends use to spank Troy and the Mother did
nothing about it. Jasmine testified that she had been around the Children since they
were born. Jasmine acknowledged the Children love their Mother and want to
continue a relationship with her. Jasmine insisted she would be protective of the
Children if their Mother relapsed into drug use. Jasmine testified she wants to
adopt the Children and her adoption would be in their best interest. Jasmine
testified that she had been deprived of a childhood because of her mother’s drug
use and she wanted to provide the Children with a better future that provides
stability. Despite her youth, Jasmine believed she could provide a safe and stable
home for the Children. The Mother acknowledged she had seen the Children and
they were happy and thriving with Jasmine. The Mother also acknowledged she
was comfortable with the Children’s placement with Jasmine. The Mother
testified, however, that the Children told her that they wanted to live with her.
The Advocate testified that termination of the Mother’s parental rights and
the current placement of the Children with Jasmine is in the Children’s best
interest. The Advocate testified that the Children had told her they wanted to stay
with their sister, Jasmine. The Advocate also acknowledged the Children love their
Mother and want to continue to have a relationship with her.
Despite the love the Children and Mother have for each other, these factors
weigh in favor of termination.
5. The Mother’s Parenting Abilities
We may also consider a parent’s past performance as a parent in evaluating
the parent’s fitness to provide for the Child and the trial court’s determination that
termination would be in the Child’s best interest. See In re C.H., 89 S.W.3d at 28.
The Mother acknowledged she had an older son who is thirteen years old and lives
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with her mother.3 The Mother provided no explanation why her mother is raising
this older child. There is no evidence regarding any bond with that child or the
Mother’s efforts to parent that child. In addition, there is no evidence regarding
whether she supported that child financially.
Although evidence of past misconduct or neglect alone may not be sufficient
to show present unfitness, a fact finder may measure a parent’s future conduct by
her past conduct and determine that it is in a child’s best interest to terminate her
parental rights. See In re A.N.D., No. 02-12-00394-CV, 2013 WL 362753, at *2
(Tex. App.—Fort Worth Jan. 31, 2013, no pet.) (mem. op.). The Mother was
neglectful in allowing Troy to wander the apartment complex by himself. The
Mother testified that the Department became involved with her Children in
September 2013 when her six-year old son was found walking around the
apartment complex by himself. Troy claimed he was hungry, alarming the
neighbors to the extent they contacted the Department out of concern that the
Mother was starving the Children. The Mother was in and out of jail or drug
rehabilitation during the Children’s short lives, often leaving them with relatives.
The Mother provided a psychosocial evaluation from Kinghaven Counseling
Group completed a month before trial. The evaluation admitted at trial included a
recommendation that the Mother have increased contact with the Children. The
Kinghaven report recommended that the Mother undergo “family therapy with the
goal of improving her parenting skills with her children.” Our record contains no
evidence that the Mother engaged in the recommended family therapy.
The limited evidence addressing the Mother’s ability to parent her Children
supports the trial court’s best-interest finding.
3 The Mother did not mention Jasmine in her testimony regarding her Children. It appears
from the record that Jasmine is the Mother’s step-daughter.
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6. Summary
The record evidence established that the Mother has a long history of
abusing illegal drugs. She acknowledged she often left her Children with others
and she was “not there” for them. In addition, the Mother had numerous criminal
convictions, including drug offenses, and she had been incarcerated at least once.
She is dependent on her boyfriend James for financial support. In fact, the only
evidence of family or other support to assist her is from James, who denied he was
the Mother’s boyfriend and called himself a “close friend.” While the Mother
completed in-patient drug treatment, she admitted that she had relapsed three times
in the past. While there is evidence that the Mother loves the Children and they
miss her, her daughter Tonya did not feel safe with her Mother. In contrast, the
Children were safe, stable, and doing well in the current placement. Tonya said
living with Jasmine was “like a dream.”
After considering the relevant factors under the appropriate standards of
review, we conclude this evidence supports the trial court’s best-interest finding.
See In re S.B., 207 S.W.3d at 887–88 (considering the parent’s drug use, inability
to provide a stable home, and failure to comply with his family service plan in
holding evidence supported the best-interest finding). Specifically, after viewing
all the evidence in the light most favorable to the judgment, we conclude that a
factfinder could have formed a firm belief or conviction that termination of the
Mother’s parental rights is in the Children’s best interest. See J.F.C., 96 S.W.3d at
265–66. And, in light of the entire record, we further conclude that any “disputed
evidence that a reasonable factfinder could not have credited in favor of the bestinterest
finding is not so significant that a fact finder could not reasonably have
formed a firm belief or conviction” that termination of the Mother’s parental rights
is in the Children’s best interest. See In re H.R.M., 209 S.W.3d at 108. Therefore,
we hold the evidence is both legally and factually sufficient to support the trial
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court’s finding that termination of the parent-child relationship is in the Children’s
best interest. See Tex. Fam. Code § 161.001(2). We overrule the Mother’s third
issue.
IV.

Outcome: We have determined that legally and factually sufficient evidence supports
the trial court’s finding of at least one predicate ground for termination and that
termination of the Mother’s parental rights is in the best interest of the Children.
Therefore, the trial court’s judgment is affirmed.
/s/ Marc W. Brown
Justice
Panel consists of Justices Jamison, Busby, and Brown.

Plaintiff's Experts:

Defendant's Experts:

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