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holding that the trial court could have concluded that the appellant's return to jail, whether on a probation violation or a new offense, was a material and substantial change in circumstances
Summary of this case from In re C.A.C.Opinion
No. 01-06-00817-CV
Opinion issued March 27, 2008.
On Appeal from the 300th District Court Brazoria County, Texas, Trial Court Cause No. 33547.
Panel consists of Justices TAFT, KEYES, and ALCALA.
MEMORANDUM OPINION
Appellant, Marjorie Huepers, appeals from the trial court's order terminating her parental rights to her son, B.L.H. Appellee, Amy Middleton, is the managing conservator of the child under a mediated agreement with Marjorie and has cared for B.L.H. for most of his life. In four issues, Marjorie contends that the trial court erred (1) by denying her request to call Amy's adoptive mother, Sharon Middleton, who is also Amy's attorney, as a witness; (2) by denying her motion to disqualify Sharon from acting as Amy's attorney at trial; (3) by terminating Marjorie's rights based on evidence that is factually insufficient to support the court's finding that there was a material and substantial change in her circumstances as required by the Texas Family Code; and (4) by terminating Marjorie's rights based on evidence that is factually insufficient to support the court's finding that termination was in the best interest of the child. We conclude that the trial court did not abuse its discretion by denying Marjorie's motion to disqualify Sharon and that the exclusion of Sharon's testimony, if error, was harmless error. We further conclude that the evidence is factually sufficient to support the trial court's judgment. We therefore affirm.
Background
B.L.H. was born in October 2002 with cocaine and Benzodiazaphine (Xanax) in his system. Marjorie admitted to using drugs during her pregnancy, and B.L.H. was removed from the care of Marjorie and placed with Marjorie's mother, Marion Ward. Ten days later, B.L.H. was placed with Amy because of an incidence of domestic violence at Marion's home. In April 2003, Marjorie began substance abuse treatment at the Franklin House in Beaumont, Texas. B.L.H. was placed with her there in an attempted reunification. Because of concerns that Marjorie physically and verbally abused B.L.H., Marjorie was discharged from the Franklin House after only three days. Two days later, the Texas Department of Protective and Regulatory Services ("TDPRS") filed suit seeking to terminate Marjorie's parental rights, and B.L.H. was placed in foster care.
Marjorie subsequently went to jail on burglary and drug charges. B.L.H. was moved to the care of Amy in October 2003, and he has remained there since. In March 2004, while Marjorie was still in jail, the parties mediated the termination case against Marjorie and agreed that Amy would be named Permanent Managing Conservator of B.L.H. and Marjorie would be the Permanent Possessory Conservator. Amy stated that she would not seek the termination of Marjorie's parental rights if Marjorie did not return to prison once she was released on probation.
Marjorie was released from jail on probation in April 2004. Marjorie stated that she attempted to contact Amy to notify her of her release from jail, but the letter was returned. In May 2004, Marjorie violated the terms of her probation and returned to jail to serve the remainder of her sentence for burglary. Amy brought this suit seeking to terminate Marjorie's parental rights in March 2005 while Marjorie was still in jail. Marjorie was released from jail in April 2005.
Denial of Marjorie's Request to Call Sharon as Witness
In her first issue, Marjorie contends that the trial court erred by denying her request to call Amy's adoptive mother, Sharon, as a witness at trial. "The admission and exclusion of evidence is committed to the trial court's sound discretion." Benavides v. Cushman, Inc., 189 S.W.3d 875, 878-79 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. See Alvarado, 897 S.W.2d at 754. If a party challenges the exclusion of a witness's testimony, the party calling the witness must make a bill of exception of the excluded testimony. TEX. R. APP. P. 33.2; Connell v. Connell, 889 S.W.2d 534, 545 (Tex.App.-San Antonio 1994, writ denied). "To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was erroneous and that the error was calculated to cause, and probably did cause, `rendition of an improper judgment.'" Benavides, 189 S.W.3d at 879 (quoting TEX. R. APP. P. 44.1(a)(1) and Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998)). In conducting this harm analysis, we review the entire record. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); Alvarado, 897 S.W.2d at 754; Benavides, 189 S.W.3d at 879. Evidentiary rulings do not usually cause reversible error unless an appellant can demonstrate that the judgment turns on the particular evidence that was admitted or excluded. Able, 35 S.W.3d at 617; Alvarado, 897 S.W.2d at 753-54; Benavides, 189 S.W.3d at 879.
In her brief, Marjorie contends that the trial court's denial violated her rights under theConfrontation Clause. However, at trial, her only objection to the exclusion of Sharon'stestimony was based on evidentiary grounds, not constitutional grounds. Therefore, she haswaived any challenge she may have had on such grounds. See In re L.M.I., 119 S.W.3d 707,711-12 (Tex. 2003).
Assuming without deciding that it was error for the trial court to exclude the testimony of Sharon, Marjorie presents no evidence to suggest that the error was harmful. In her brief, Marjorie claims that she would have asked Sharon about day-to-day activities in the home with B.L.H. and a domestic violence incident that occurred between Sharon and her mother-in-law. During her bill of exception, however, Marjorie asked no such questions. Instead, she asked other questions, most of which could have easily been answered by other witnesses. For example, Marjorie asked when Sharon had adopted Amy, how long she had known her prior to the adoption, and other questions about the adoption. However, Gary Middleton, Sharon's husband could have, and did, answer questions about the adoption. Amy could also have testified to these issues as well. In her bill of exception, Marjorie questioned Sharon about her membership on a website message board and a message posted with Sharon's user name. However, in her brief, Marjorie made no attempt to address the relevance of such questions or how she was harmed by the exclusion of this evidence. No other questions asked of Sharon during Marjorie's bill of exception present issues that could not have been answered by another witness or were essential to Marjorie's case. We conclude the exclusion of the evidence did not, in reasonable probability, cause the rendition of an improper judgment. See Benavides, 189 S.W.3d at 879. We hold that the trial court's error of excluding the testimony of Sharon, if any, was harmless.
We overrule Marjorie's first issue.
Motion to Disqualify Attorney
In her second issue, Marjorie contends that the trial court erred by denying her motion to disqualify Amy's attorney, Sharon, from the case. Amy responds that Marjorie did not meet her burden of proving that disqualification was required. The standard of review for the denial of a motion to disqualify an attorney is abuse of discretion. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002). A trial court will be found to have abused its discretion only when its actions were arbitrary or unreasonable. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
Disciplinary Rule 3.08 states in part:
(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure.
TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08(a), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998). Although Rule 3.08 was promulgated as a disciplinary standard, rather than one of procedural disqualification, courts have recognized it as providing relevant guidelines for disqualification determinations. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (citing Anderson Producing Inc. V. Koch Oil Co., 929 S.W.2d 416, 421 (Tex. 1996)).
Attorney disqualification is a severe remedy. Nitla, 92 S.W.3d at 422 (citing Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 656 (Tex. 1990)). A motion for disqualification should be considered with caution, because of the great potential that it could result in immediate and palpable harm, disrupt the proceedings of the trial court and deprive a party of the right to employ the counsel of choice. Id. (citing Hoggard v. Snodgrass, 770 S.W.2d 577, 581 (Tex.App.-Dallas 1989, no writ)).
It is only appropriate to disqualify an attorney when the attorney's testimony is "necessary to establish an essential fact." Sanders, 153 S.W.3d at 57 (citing TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08(a)). The mere fact that a lawyer serves or may serve as both an advocate and a witness, alone and without more, does not automatically compel disqualification. Id. (citing Ayres v. Canales, 790 S.W.2d 554, 557-58 (Tex. 1990)). Even if a lawyer violates a disciplinary rule, the party moving for disqualification still bears the burden of proving actual prejudice will be incurred as a result of the dual roles of the non-movant's lawyer as both attorney and witness. Id. (citing Ayres, 790 S.W.2d at 558). The "mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice" to meet this burden. Id. (citing Spears, 797 S.W.2d at 656). Finally, the rule must be applied strictly in order to discourage parties from using a motion to disqualify as a dilatory trial tactic or for other tactical purposes. Nitla, 92 S.W.3d at 422 (citing Spears, 797 S.W.2d at 656).
Marjorie contends that, due to Sharon's complex relationship to the facts of the case — lawyer, mother, grandmother, employer, and spouse to various parties and witnesses — it would be absurd to think her testimony was anything but essential. Although it is undisputed that Sharon could serve as a fact witness due to her knowledge of relevant facts, Marjorie has not shown that Sharon's testimony is "necessary to establish an essential fact." See Sanders, 153 S.W.3d at 57. The record here shows various other sources to prove the same information that Sharon could provide. See id. at 57-58. Amy and Gary Middleton testified as to the condition of the home they shared with B.L.H. and Sharon, and the nature of the relationship between the members of the Middleton family and B.L.H. In Sanders, the wife in a divorce and child custody case sought to disqualify the husband's attorney, alleging that he had become a material fact witness and should therefore be disqualified because the husband had performed some carpentry work on the attorney's office as partial payment for his legal counsel. Id. at 56. The court rejected the wife's argument because this information could be obtained from sources other than the husband's attorney. Id. at 57-58. For example, the court noted that the husband himself could testify as to these facts, or the attorney's billing records could be brought into evidence. Id.
Marjorie refers to the commentary for Rule 3.08, which states, "A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof." TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08 cmt. 4. Any attorney who has done research prior to a trial will know what the various witnesses will likely say at trial. We cannot conclude that the fact finder — here, the trial court judge — could not have disregarded Sharon's statements that may have suggested personal knowledge of facts rather than a comment on evidence in the record. Furthermore, Sharon asserted that she only intended to testify concerning attorney's fees, and much of the "contradictory" testimony cited by Marjorie was on the matter of attorney's fees. Testimony about attorney's fees, however, is clearly acceptable under Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct. See TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08(a)(3). Marjorie has thus failed to show that Sharon's testimony was necessary to establish an essential fact, as the rule requires.
Marjorie also points to Cossette v. County Style Donuts, Inc., 647 F.2d 526, 530 (5th Cir. 1981). In Cossette, the court asserted, "The rule of disqualification involves a balancing of the likelihood of public suspicion against the interest in retaining counsel of one's choice." Id. (citing Church of Scientology v. McLean, 615 F.2d 691, 692 (5th Cir. 1980)). Marjorie maintains that the appearance of possible impropriety created as a result of attorney Sharon's personal involvement in the case was so great that it should outweigh Amy's interest in choosing her counsel. However, Cossette refers to the American Bar Association's Canons of Professional Ethics, not the Texas disciplinary rules. Furthermore, Cosette discusses the disqualification of an attorney in a matter involving a former client, not a lawyer serving as a witness, as in the present case.
The last minute filing of the motion to disqualify attorney Sharon suggests it was a tactical maneuver by Marjorie. See Sanders, 153 S.W.3d at 57-58. Marjorie waited until the night before trial to enter her motion to disqualify attorney Sharon, even though Marjorie's counsel pondered whether or not to raise the motion for several weeks. Courts have a strong desire to discourage parties from using motions to disqualify as tactical maneuvers. See id.
The evidence fails to show that attorney Sharon's testimony was both necessary and essential to the case. See TEX. DISCIPLINARY R. PROF'L CONDUCT 3.08(a). We hold that the trial court did not abuse its discretion by denying the motion to disqualify Sharon from acting at Amy's attorney.
We overrule Marjorie's second issue.
Factual Sufficiency
In her third and fourth issues, Marjorie asserts that the evidence is factually insufficient to support the trial court's finding that there was a material and substantial change in circumstances and that termination was in the best interest of the child, as required by the Texas Family Code. Under section 161.004, a court may not terminate parental rights after previously denying a prior petition to terminate unless:
(1) the petition under this section is filed after the date the order denying termination was rendered;
(2) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered;
(3) the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered; and
(4) termination is in the best interest of the child.
TEX. FAM. CODE. ANN. § 161.004(a) (Vernon 2006).
Marjorie challenges the trial court's finding only on grounds two and four, concerning the change in circumstances and the best interest of the child.
A. Standard of Review
A parent's rights to a child may not be terminated unless the grounds for termination are proven by clear and convincing evidence. Vasquez v. Tex. Dep't of Prot. Regulatory Servs., 190 S.W.3d 189, 193 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92 and In re B.L.D., 113 S.W.3d 340, 353-54 (Tex. 2003)). "Clear and convincing evidence" is defined as that 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 claims sought to be proved. TEX. FAM. CODE ANN. § 101.007 (Vernon 2006); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When an appellant attacks the factual sufficiency of an adverse finding on an issue on which the opposing party had the burden of proof, that appellant must demonstrate that there is insufficient evidence to support the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Vasquez, 190 S.W.3d at 193. In analyzing factual sufficiency, we consider whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d. at 264; Vasquez, 190 S.W.3d at 193. A factual sufficiency challenge will be overruled if, considering all the evidence in the record that both supports and contradicts the trial court's finding, the fact finder reasonably could form a firm conviction or belief that the termination of parental rights is in the best interest of the child. In re C.H., 89 S.W.3d 17, 28-29 (Tex. 2002); Vasquez, 190 S.W.3d at 193-94.
B. Material and Substantial Change in Circumstances
In her third issue Marjorie challenges the factual sufficiency of the court's finding that the circumstances had materially and substantially changed as required by section 161.004 of the Family Code. Specifically, Marjorie contends that she was not sent to prison on new charges after the petition was filed, that she has stopped using drugs, that she attempted to set up visits with her son, and that, once she understood her child support obligations, she caught up with all past due child support. Amy responds that Marjorie returned to prison after being released because she violated terms of her probation, that Marjorie continues to abuse drugs, and that Marjorie had not made efforts to contact the child.
No definite guidelines exist as to what constitutes a material and substantial change in circumstances. See Wright v. Wright, 610 S.W.2d 553, 555 (Tex.Civ.App.-Houston [1st Dist.] 1980, no pet.). However, facts in the record support the trial court's determination.
At the time the initial agreement with Amy was mediated in March 2004, Marjorie was in jail for a conviction for burglary of a habitation. The order denying termination was signed in early April. Also in April 2004, Marjorie was released from jail and placed on probation for the crime. Less than a month later, Marjorie's probation was revoked because she violated the terms of her probation, and she returned to jail. In March 2005, while Marjorie was still in jail because of the probation violation, Amy filed the present suit to terminate Marjorie's parental rights. Although Marjorie states that her return to jail was not due to a new offense, the trial court still could have reached the conclusion that her return to jail, whether on a probation violation or a new offense, was a material and substantial change in circumstances. See Thompson v. Tex. Dep't of Family and Prot. Servs., 176 S.W.3d 121, 126-27 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).
Furthermore, Marjorie stated that she was no longer abusing illegal drugs. However, testimony from her aunt suggests that she used illegal drugs after her release from prison in April 2004. Margaret Foster testified that, at her father's funeral, Marjorie arrived emitting an odor of marijuana. Margaret testified Marjorie admitted to being "all messed up." Margaret further stated that Marjorie told her she was under the influence of drugs during a visit to the home of Marjorie's mother. The trial court could have chosen to believe the testimony of Margaret over that of Marjorie. And, based on such evidence, the trial court could have reached the conclusion that Marjorie abused illegal drugs again after her release from prison and after the prior petition to terminate was denied, which would also constitute a material and substantial change in circumstances. See id.
We overrule Marjorie's third issue.
C. Best Interest of the Child
In her fourth issue, Marjorie asserts that the evidence is factually insufficient to support the trial court's finding that termination of her parental rights is in the best interest of the child.
In determining whether termination is in the child's best interest, we apply the Holley factors, as follows:
1. The child's desires;
2. The child's physical and emotional needs, now and in the future;
3. The emotional and physical danger to the child, now and in the future;
4. The parental ability of the individuals seeking custody;
5. The programs available to assist these individuals in promoting the child's best interest;
6. The plans for the child by the individual or agency seeking custody;
7. The stability of the home or proposed placement;
8. The parent's act or omissions that may indicate the existing parent-child relationship is not the proper one; and
9. Any excuse for the parent's acts or omissions.
Vasquez, 190 S.W.3d at 196 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)). The party in favor of termination is not required to prove all of the Holley factors, particularly where there is undisputed evidence that the parent-child relationship endangers the child's safety. See In re C.H., 89 S.W.3d at 27. Additionally, absence of evidence about some of the Holley best interest factors does not preclude a factfinder from reasonably forming a strong conviction that termination is in the child's best interest. In re L.M., 104 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist] 2003, no pet.).
1. Desires of Child
Marjorie contends that there is no evidence that B.L.H. does not want to live with her. Amy responds that she and B.L.H. are very close and that B.L.H. is also attached to Amy's adopted son, Devan, and Amy's adoptive parents, Sharon and Gary Middleton. At under five years of age, B.L.H. was too young to testify as to his desires. This factor weighs neither against nor in favor of termination of Marjorie's parental rights.
2. Child's Physical and Emotional Needs, Now and in the Future
Marjorie contends that there is no evidence that she abused or neglected B.L.H., that he needs to live with his full-blooded brother in order to develop their family bond, and that she understands B.L.H.'s emotional and physical needs, now and in the future. Amy responds that B.L.H. was born with cocaine and Xanax in his system and that Marjorie has never provided him with food, clothing, or shelter. Concerning the child's present physical and emotional needs, Marjorie testified that she understood B.L.H.'s physical needs now to be "food, clothing, time to play, time to sleep, baths, everyday living." She also testified that she understood his current emotional needs to be "love, the feeling of belonging, the feeling that someone is there, I mean that he's going to be taken care of." Although Marjorie demonstrated an awareness of what B.L.H.'s present physical and emotional needs may be, other than for three days, she has never physically or emotionally been the caretaker of B.L.H. Until very shortly before trial, Marjorie paid no child support for the care of B.L.H., with the possible exception of about $20 early in B.L.H.'s life. The record is undisputed that Amy is the only mother that B.L.H. has ever known. B.L.H. has lived with Amy since he was 13 days old with only a six-month separation while he was in foster care. B.L.H. refers to Amy as "mommy." Marjorie's testimony acknowledges that she has no bond with B.L.H. Marjorie's contact through supervised visitation with B.L.H. has been limited and sporadic, and the last time she visited him was on July 21, 2003, when B.L.H. was still an infant. Although Marjorie appears to understand what B.L.H.'s physical and emotional needs may be, no evidence shows that she has provided for any of those needs for most of his life.
Concerning the child's future physical and emotional needs, Marjorie testified that in the future, B.L.H. would need "support" and "help dealing with the fact that he's going to have . . . abandonment issues." She testified that she would support herself, B.L.H., and her other infant son on $560 a month that she would earn through work and friends "that are willing to help me." Marjorie testified that she was going to be "put on a schedule" and go "through training" to be a hostess at Waffle House. However, Marjorie did not provide any documentation to support her claim that she had been hired to work there, and the trial court could have disregarded her testimony as not credible. Cf. Vasquez, 190 S.W.3d at 197 (noting that Vasquez was able to provide a paycheck stub from her employment). Marjorie did testify that she had worked a temporary job as a telemarketer for the Public Safety Services. However, she only worked 15 days and made $166. Furthermore, Marjorie testified that she had not had a steady job since she was released from jail and could not estimate how much she earned on a month to month basis from her work as a babysitter. The record shows, therefore, that Marjorie's employment was sporadic, making her financially reliant on others.
When asked how much money she would need if B.L.H. needed to go to the hospital or get his prescriptions filled, Marjorie stated that she "[had] no idea." The record reveals that B.L.H. must wear glasses and have his vision monitored. B.L.H. sometimes has "rages" during which we will "throw himself on the ground, bang his head on the ground, bang his head on walls . . . [and] bite himself." Marjorie testified that she would be able to help B.L.H. with his rages through the help of a therapist who would talk with Marjorie and B.L.H., and she would pay for the therapist through Medicaid. Additionally, Marjorie testified that she had "looked into the CHIPs program" for B.L.H.'s medical needs. However, Marjorie testified that she did not know what steps to take to get B.L.H. enrolled in the program and that she had not read the qualifications or filed an application for the program. Given the lack of consistent employment and the heavy reliance on "friends," the evidence shows that Marjorie will have difficulty providing for B.L.H.'s physical and emotional needs in the future. This factor weighs in favor of termination of Marjorie's parental rights.
3. Emotional and Physical Danger to Child, Now and in the Future
Marjorie contends that she has been drug-free for over three years, has completed all her drug rehabilitation programs, and that there is no evidence of any possible physical or emotional abuse of the child by her now or in the future. By contrast, Amy responds that Marjorie poses a threat to the child because of her past use of illegal narcotics and potential for relapse. The record shows that Marjorie has placed B.L.H. in physical and emotional danger by her use of illegal narcotics for most of B.L.H.'s life, including while she was pregnant with B.L.H., which caused him to be born with cocaine and Xanax in his blood. See Vasquez, 190 S.W.3d at 197 ("Evidence of pre-natal and post-natal drug abuse by a parent may be ground for termination.") (citing In re R.D., 955 S.W.2d 364, 368 (Tex.App.-San Antonio 1997, pet. denied). Furthermore, Marjorie testified that she used marijuana every day for nine years before she quit using drugs.
Marjorie contended at trial that due to her treatment for substance abuse, she was now drug-free. Marjorie testified that she had been clean since April 4, 2005. However, the record contains evidence to contradict Marjorie's claim that she was no longer using narcotics. Marjorie's aunt testified that she observed Marjorie under the influence of marijuana during the time when Marjorie claimed that she was clean. The trial court could have disbelieved Marjorie's claim that she was no longer using illegal drugs because, despite her recent treatment, a witness testified that Marjorie was still using illegal drugs. Additionally, the record shows that Marjorie has been incarcerated for most of B.L.H.'s life and thus left physical care of him up to others. The record supports the determination that Marjorie now poses, and will pose in the future, an emotional and physical danger to B.L.H. This factor weighs in favor of termination of Marjorie's parental rights.
4. Parental Ability of Individuals Seeking Custody
Marjorie contends that she can provide B.L.H. with a safe and stable home, that she has no intention to cut off ties with Amy and Amy's family, and that she now has parenting abilities — "nurturing, love, understanding, caring, the willingness to be a parent" — that she did not have when B.L.H. was born. Amy responds that Marjorie does not have a home, does not have a job, has no bond with B.L.H., and has not attempted to create a bond with B.L.H. Marjorie has gone at least six months without providing for B.L.H. financially and without visitation. See In re B.M.R., 84 S.W.3d 814, 820 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (taking into account father's long periods without visiting and without providing for children financially). Although Marjorie paid all of her child support after being in arrears, she only paid it after being held in contempt of court, and she has not paid again since May 2006. During a brief time when B.L.H. was placed with Marjorie at her drug rehabilitation facility, he was removed from her care by TDPRS because of allegations of abuse by Marjorie. Although Marjorie purports to love B.L.H., her conduct throughout his life, with few exceptions, demonstrates that she does not have the parental ability to care for B.L.H. This factor weighs in favor of termination of Marjorie's parental rights.
5. Programs Available to Assist Individuals in Promoting Child's Best Interest
Marjorie contends that she has used various programs in the past to assist her in caring for her children, which include Medicaid and The Ripley House; furthermore, she contends that she could use CHIP for B.L.H.'s medical needs. Amy agrees that Marjorie receives government benefits for her other child. Marjorie testified that she took a class on parenting and that she learned certain safety measures at those classes. Marjorie testified that she planned to have B.L.H.'s healthcare taken care of by CHIP, but she also testified that she had no idea how much it would cost if B.L.H. had to go to the hospital or have prescriptions filled.
Additionally, although there are several programs available to aid Marjorie in caring for B.L.H., she has not filed an application for B.L.H.'s healthcare to be provided by CHIP. Thus, this factor weighs neither for nor against termination.
6. Plans for Child by Individuals Seeking Custody
Marjorie contends that she has a safe and stable home that she rents from B.L.H.'s paternal grandmother, who only lives three houses away; furthermore, Marjorie also asserts that she has made arrangements with a therapist at the Ripley House to help her and B.L.H. through the transition. Amy responds that Marjorie does not have a safe and stable home.
Marjorie testified that she planned to depend on the financial help of family and friends to support her and her two children. Marjorie planned to leave B.L.H. with his paternal grandmother when Marjorie went to work. Marjorie also testified that she was living at her mother-in-law's house but was not paying any rent. Marjorie also testified that she did not have a car and that she would have to "depend on everybody to drive [her] to work." Although Marjorie has made efforts to make some plans for B.L.H., those plans rely heavily upon others because Marjorie does not pay rent, has no car, and relies on the financial assistance of her family, friends, and government. Marjorie's plans fail to acknowledge her continued drug use and transient living arrangements. In contrast, Amy has demonstrated an ability to care for B.L.H. throughout his life. This factor weighs in favor of termination of Marjorie's parental rights.
7. Stability of Home or Proposed Placement
Neither Marjorie nor Amy briefed this issue. However, evidence showed that Marjorie was residing in a house that was boarded up in the front. Additionally, Marjorie did not pay rent to stay at the house and lived in three different locations during the trial court proceedings. Evidence of the transient living by Marjorie suggests that placement of B.L.H. with her would provide an unstable home. This factor weighs in favor of termination of Marjorie's parental rights.
8. Acts or Omissions of Parent that May Indicate that Existing Parent-Child Relationship is not a Proper One.
Marjorie contends that, although she does have a criminal history and a past drug problem, she has now overcome those problems and is able to provide a safe and stable home for B.L.H. Amy contends that Marjorie's past drug use and criminal history still pose present and future problems for her. The record demonstrates that the acts by Marjorie show an inadequate relationship with B.L.H. due to Marjorie's commission of crimes and violations that resulted in her repeated incarcerations, continued drug use even after receiving treatment, failure to pay child support consistently, and failure to interact consistently with B.L.H. to form a relationship with him. This factor weighs in favor of termination of Marjorie's parental rights.9.Any Excuses for Acts of Omissions of Parent
Neither Marjorie nor Amy discusses any excuses for those acts or omissions. Thus, this factor weighs neither for nor against termination. We therefore conclude that the application of the Holley factors supports the trial court's finding that termination of Marjorie's parental rights is in the best interest of B.L.H.
We overrule Marjorie's fourth issue.
Conclusion
We affirm the judgment of the trial court.