Summary
holding malnourishment and lack of medical care evidence of endangerment
Summary of this case from S. B. v. Tex. Dep't of Family & Protective Servs.Opinion
NO. 01-17-00775-CV NO. 01-17-00776-CV
04-06-2018
IN THE INTEREST OF H.M.O.L., A CHILD and IN THE INTEREST OF K. X. J. L., JR., A CHILD
On Appeal from the 313th District Court Harris County, Texas
Trial Court Case Nos. 2013-06554J and 2014-01564J,
MEMORANDUM OPINION
G.R.R. ("Mother") and K.X.J.L. aka K.L. Sr. ("Father") are appealing final orders terminating their parental rights to their daughter, H.M.O.L. ("Helen"), and their son, K.X.J.L. ("Ken"). On appeal, Father argues that there is factually insufficient evidence to support the trial court's finding that termination of his parental rights was in Ken's or Helen's best interest. Mother argues that there is legally and factually insufficient evidence supporting the trial court's findings that: (1) a material and substantial change occurred after the trial court's April 2015 and October 28, 2015 orders; (2) she committed the predicate acts under sections 161.001(b)(D), (E), and (O); and (3) termination of her parental rights is in Helen's best interest. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D),(E), and (O), 161.001(b)(2) (West Supp. 2017).
We affirm the trial court's final orders in both cases.
Procedural Background
On November 23, 2013, Department of Family & Protective Services ("the Department") filed an Original Petition for Protection of a Child for Conservatorship and for Termination in Suit Affecting the Parent-Child Relationship in Cause No. 2013-06554J in which the Department requested, inter alia, to be named the temporary managing conservator of fourteen-month old Ken. The Department had received a referral alleging that Ken had been physically neglected by Mother, Father, and Ken's maternal grandmother ("Teresa"). According to the report, Ken was severely malnourished when he was admitted to Texas Children's Hospital ("TCH") and only weighed eleven pounds at fourteen months of age. In addition to his malnourishment, Ken also had severe medical issues and required a liver transplant, but he could not be put on the liver transplant list due to his malnourishment. The report also alleged that Mother refused to learn how to care for Ken, and both Mother and Father failed to follow through with scheduled medical appointments.
On March 2, 2014, Mother gave birth to Ken's sister, Helen. Four days later, the Department filed its Original Petition for Protection of a Child for Conservatorship and for Termination in Suit Affecting the Parent-Child Relationship in Cause No. 2014-01564J requesting to be named as Helen's temporary managing conservator. In its petition, the Department alleged that Helen should be placed in the Department's custody because Mother had exposed Helen to drugs in utero. Specifically, the Department alleged that Mother had tested positive for marijuana in December 2013 and positive for cocaine in January 2014. According to the Department, Mother knew she was pregnant when she was using drugs. The Department further alleged that Father was also using drugs, no relatives were available for placement, and Helen was ready for release from the hospital. Helen was released from the hospital and immediately placed with a foster family.
A bench trial was held concurrently in Ken's and Helen's cases on March 25, 2015, April 2, 2015, and April 14, 2015. At the conclusion of the trial on April 14th, the judge recessed Helen's case to a later date. The trial court also stated on the record that it had found that it was not in Ken's best interest to terminate Mother's and Father's parental rights and named the Department as Ken's permanent managing conservator and Mother and Father as possessory conservators. The court signed an order memorializing its ruling on April 28, 2015. In the April 28, 2015 order, Mother and Father were ordered to, among other things, remain drug free, which included exposure to and ingestion of drugs, continue counseling, attend all visitations with Ken, and attend all training classes provided to learn how to care for Ken.
Helen's case reconvened on July 22, 2015 at which time the court allowed the Department to introduce evidence of Mother's and Father's most recent drug tests on June 30, 2015. The court then recessed Helen's case until September 15, 2015. After hearing testimony from one of Mother's and Father's counselors, the court recessed Helen's case a third time. The bench trial in Helen's case concluded on October 6, 2015. On October 28, 2015, the trial court signed an order appointing the Department as Helen's sole managing conservator and naming Mother and Father as her possessory conservators. In the October 28, 2015 order, Mother and Father were specifically ordered, among other things, to remain drug free, which included exposure to and ingestion of drugs, complete a new substance abuse assessment and follow all recommendations, submit to random drug testing, attend twice weekly alcoholics anonymous or narcotics anonymous meetings, obtain a sponsor with at least five-years sobriety, and obtain signatures documenting their attendance at each meeting. Mother and Father were also required to provide a home for Helen that was free from drug usage, including anyone using drugs in the home regardless of whether Helen was in the home at the time, continue in counseling as provided by the Department, and attend all visitations for Helen.
On December 15, 2015, the trial court held a special status hearing at which time the court approved amended service plans for both Mother and Father. The trial court ordered the parents to "comply with all services outlined in the Family Plans of Service" and required the Department's caseworker to "follow up with Texas Children's Hospital to inquire [as to] whether parents may attend appointments separately."
On November 4, 2016, the Department filed motions to modify the court's April 28, 2015 order (Ken) and its October 28, 2015 order (Helen) based on Family Code section 161.004. TEX. FAM. CODE ANN. § 161.004 (West 2014) (allowing court to terminate parent-child relationship after rendition of order that denied termination of parent-child relationship).
A modification hearing in both cases was held on July 24, 2017 and July 27, 2017. Transcripts and exhibits from the 2015 trial were admitted into evidence during the 2017 modification hearing, along with the parents' family service plans, the October 2015 order in Helen's case, the April 2015 order in Ken's case, reports from Child Advocates and the Department, and documentation of Mother's and Father's drug tests.
Ken was admitted to TCH in May 2017 and was in ICU when the modification hearing began in July. Before his admission, he went almost two years without hospitalization.
Because the Department had moved for termination under section 161.004, the court was allowed to "consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child." TEX. FAM. CODE ANN. § 161.004(b) (West 2014).
Factual Background
Mother and Father, who lived in Louisiana, brought Ken to TCH in Houston for a three-day liver transplant evaluation on November 4, 2013.
A. Ken's Medical Condition
Dr. Leung, one of Ken's treating physicians, explained that Ken has a rare genetic liver disorder known as Alagille syndrome. According to Dr. Leung, Ken developed subsequent problems because of his liver disease, including narrowing of his pulmonary arteries, developmental delays caused by brain blood vessel abnormalities, jaundice, and severe bone disease (rickets and osteopenia).
When Ken arrived at TCH, the 14-month-old boy's arms and legs were so malnourished that he looked like a child "you might see in a world vision commercial." Ken's liver disease caused him to be "extremely itchy" and he had scratches "all over his scalp and his buttocks." Ken's bones were also extremely brittle due to his malnutrition and vitamin D deficiency and he had numerous rib fractures, as well as fractures in one or both of his shin bones. According to Dr. Leung, Ken's numerous bone fractures were "due to his nutrition not being previously addressed while he was living in Louisiana." He was also so severely jaundiced that his "eyes were as yellow as a highlighter." According to the doctor, Ken's health was so compromised when he arrived in Houston that he would have bled to death if he had sustained a cut, bruise, or a fall.
Dr. Leung explained that Ken had been originally diagnosed in Louisiana with a different, but equally serious, liver disease and he had undergone a procedure to open a bile obstruction. At some point before Ken's arrival in Houston, Ken's referring physician called Dr. Leung and asked him to see Ken immediately due to Ken's severe condition. According to Dr. Leung, Ken's medical records indicated that Ken's Louisiana doctors had trouble locating or contacting his family and that, although his parents had received "the appropriate workup" on Ken at some point before coming to Houston, they "did not return to see the [Louisiana] physicians in a timely manner after their initial workup." Ken's medical records also indicated that Ken had not seen a doctor since February 2013—approximately nine months before he came to TCH for a transplant evaluation. Mother and Father had rescheduled Ken's evaluation with TCH multiple times. According to Dr. Leung, Mother's and Father's failure to secure appropriate follow-up care prevented medical personnel from discovering and treating Ken's severe malnutrition and vitamin D deficiency and as a result, Ken developed "severe bone disease and osteopenia," and fractured several bones because of his bone disease. Dr. Leung believed that Ken's bone fractures resulted from his parents' delay in providing him with medical treatment for his malnutrition and vitamin D deficiency.
Dr. Leung also testified that, due to Ken's Alagille syndrome, he required 50 to 70% more calories than an average child his age, and needed to be admitted to TCH in 2013 order to stabilize his condition and address his nutritional needs. According to Dr. Leung, it would difficult for any parent to meet such nutritional needs without "without appropriate medical expertise and the supplies." Although Alagille syndrome can lead to malnutrition, Ken's nutritional status was "far more severe" and "unusual given his age and his diagnosis." Dr. Leung also testified that Ken's malnourishment was unusual and could have been treated, or even prevented, if he had received adequate medical attention before his arrival in Houston. He further testified that regardless of Ken's initial misdiagnosis, Ken's parents should have recognized their son's extreme malnourishment and sought medical treatment for the boy's condition in Louisiana.
Despite their son's dire condition when he arrived at TCH, Mother and Father initially refused to allow Ken to be admitted to the hospital. Mother and Father were skeptical of the hospital's concern that Ken had Alagille syndrome, they believed that the hospital had ulterior motives, and they were "belligerent," "irritable," and hostile towards the hospital staff. Dr. Leung called the parents' response "violent." According to Dr. Leung, Mother's and Father's behavior and their decisions significantly impacted Ken's health and further delayed Ken receiving the medical treatment he required. Dr. Leung testified that, in his opinion, Mother and Father had engaged in medical neglect because they had delayed getting treatment for Ken's serious medical conditions and did not understand the severity of their son's illness.
Dr. Leung testified that Ken needed a liver transplant, which would address most of his medical issues. Without a transplant, Ken would likely live only for a few more years and his quality of their life would be significantly compromised during that time. If he were to receive a transplant, however, Ken "has a fantastic opportunity to live a high quality of life." Post-liver transplant, Ken's guardian would have to maintain vigilant communication with the medical team and administer upwards of six or more medications to him within the first six months. Ken would also need weekly or biweekly outpatient visits for the first six to twelve months after the transplant.
According to Dr. Leung, TCH was concerned about Mother's and Father's understanding of Ken's medical condition and their ability to care for Ken from the very beginning. In addition to their initial refusal to admit Ken to TCH and their violent and disruptive response to TCH's plan to care for Ken, Mother and Father got into a physical fight at Ken's bedside a few days after he was admitted and Father had to be escorted out of the hospital by TCH security and Houston Police Department officers. As a result of this altercation, TCH required Mother and Father to have a security escort whenever they visited Ken in the hospital.
The hospital was also concerned about the family's ability to care for Ken, especially post-transplant. Although members of Ken's medical team had met with the family several times and made concerted efforts to educate them about Ken's condition and the extensive care that he required, Ken's parents still lacked "insight to their son's lifelong condition." Ken's maternal grandmother, Teresa, had also expressed concerns to TCH regarding Mother's "ability to make some of these complex medical decisions."
Dr. Leung testified that TCH offered to teach the family how to administer Ken's feeding tube, but Mother twice refused to learn. Ken's grandmother Teresa, however, took the class. Dr. Leung noted that although Ken gained a significant amount of weight after his admission to TCH, Ken lost weight over two days during which the family was responsible for his feeding. Dr. Leung also testified that, although Ken met the medical criteria for a liver transplant in 2015, he likely would not be able to receive a liver given his precarious social situation. Ken would, however, be able to receive a transplant if placed with a foster family that had the appropriate training to care for his particular medical conditions and could provide the necessary post-transplant care.
Dr. Leung insisted that, if Mother or Father had requested to be trained to care for Ken, the hospital would have granted the request. The children's caseworker, however, testified in 2015 that TCH was not willing to train Mother to care for Ken because TCH believed that she did not have the cognitive ability to learn everything that she needed know to adequately care for him, given her learning disability.
B. Ken's Placement
Ken was taken into the Department's care in November 2013. Despite the Department's efforts to find him a suitable placement, Ken spent most of his time between November 2013 and April 2015 at TCH. During that time, Ken was briefly placed with two foster families; both families returned him to the hospital within days because they were overwhelmed by the complexity of his diagnosis and the amount of care he required. Ken had also been placed with a third foster home, but he was returned to the hospital after the home was shut down.
The Department considered placing Ken in a "Primary Medical Needs" foster home in March 2015 and TCH trained Ken's prospective foster mother to care for him. Ken was placed with his new foster family on May 12, 2015. Ken's foster mother wants to adopt him and raise him as her own child.
Ken's foster mother, who has a nursing background, was successfully trained to provide the complex care that Ken requires and has demonstrated that she is able to meet his substantial day-to-day medical needs. The foster family has also hired a private duty nurse to help his meet his ongoing medical needs when he is at home.
Although Ken met the medical criteria for a liver transplant in April 2015, he was not able to receive a liver given his precarious social situation at the time. He was placed on the transplant list one month after he was placed with his current foster family. Ken has had not had any major illnesses during this time and he has remained out of the hospital for two years, with the exception of a recent hospitalization.
Ken, who is developmentally delayed as a result of his disease, receives occupational, speech, and physical therapy and has made significant developmental and social progress while in his foster family's care. His foster family has also arranged to homeschool him when he is old enough. Ken's caseworker testified in 2017 that Ken's foster family was providing him with a loving, safe, stable, nurturing, drug-free environment that is very important to his overall well-being, and he has been thriving in his placement.
Both TCH and Dr. Leung have a very positive opinion of the quality of care that Ken's foster mother is providing to him. Dr. Leung, who has observed Ken interact with his foster mother, believes that two are well-bonded and that Ken has thrived while in his foster mother's care. The Department, TCH, Dr. Leung, and Ken's caseworker do not have any concerns about the quality of care Ken's foster mother is providing to him.
C. Helen's Placement
Helen, who was born in March 2014, has lived with her foster family since she was four-days old. She knows her foster parents as "mommy" and "daddy" and she considers the other children in their household to be her siblings. Helen has no medical issues and is on target to meet all her developmental milestones. Her foster family has enrolled her in Head Start and take her to all her medical and dental appointments. Helen's caseworker testified that this placement is stable, appropriate, meets all of Helen's needs, and is drug-free. The Department has never had any concerns regarding the stability or appropriateness of Helen's placement.
D. Mother and Father
Mother and Father, who are not legally married, had been together for ten years when modification hearing was held in 2017. Father, who had several jobs during the pendency of these cases, was working forty-hours a week in 2017. Although she had worked in the past, Mother has not worked since the family moved to Houston and has been receiving disability payments since she was a child due to her learning disability. Mother testified that between Father's wages and her disability check, they are able to makes ends meet.
Although Mother has access to her disability payments, she has never been the official payee. Teresa, Mother's mother, was listed as the official payee until Mother's sister became the payee sometime before the modification hearing in 2017. Mother testified that she did not have the official payee changed to her name because it was too complicated. Teresa, who lived with Mother and Father on and off in 2015, handled all of Mother's business affairs and her name was on the lease for Mother's apartment. Teresa also lived part-time with Mother's sister. The Department was concerned about Mother's dependency on Teresa because they suspected that Teresa was using marijuana, given the fact that the parents were testing positive only for marijuana exposure prior to the 2015 trial.
Mother's sister did not pass the home study and no other family members had been accepted as of 2015. The Department did not consider Mother's sister's home to be appropriate for the children due to the home's condition and the smell of marijuana.
Mother and Father had moved three times within the two years' proceeding the 2017 modification hearing. Mother explained that the most recent move happened so they could get away from the people in the area who were smoking marijuana and drinking alcohol. Mother and Father have one car that Mother drives even though she does not have a driver's license. Mother also uses public transportation.
Mother testified that Ken's doctors in Louisiana told them to take Ken to TCH for a liver transplant evaluation, but they were not able to bring Ken to Houston until two months later due to transportation issues. Mother's cousin eventually rented a car for Mother and Father to use to drive Ken to TCH. Mother denied that she initially refused to allow Ken to be admitted to the hospital.
Mother testified that she and Father had argued while at the hospital about a game console and that Father was escorted out of the hospital. She denied that there had been a physical altercation. She also testified that she was told several months later that she and Father could not go to the hospital but she did not know why and she claimed that it had nothing to do with her behavior. Mother acknowledged, however, that she had shouted at hospital staff at some point because she was annoyed and frustrated that they were not keeping her informed about changes to Ken's medicine.
1. Mother's and Father's Drug Use and Exposure
The April 2015 order (Ken) and the October 2015 order (Helen) required Mother and Father to remain drug free, which included both use of and exposure to drugs, and submit to random drug tests.
Mother's and Father's drug test results from December 2013 to May 2017 were admitted into evidence during the 2017 modification hearing. The tests reflect that neither parent remained drug free.
(1) Mother
Mother, who began smoking marijuana when she was fifteen-years old, admitted that she had smoked marijuana when she was pregnant with her first child. She testified that she stopped smoking marijuana when she was twenty-five years old and that she was twenty-seven years old when Ken, her second child, was born. She admitted that she had smoked marijuana when she was pregnant with Helen, her third child, but testified that she stopped when she learned that she was pregnant. Mother also denied ever using cocaine. She also testified that neither she nor Father had used illegal drugs and she did not know if Teresa or other family members smoked marijuana, but she had seen people smoking marijuana at her prior apartment complex.
Mother's first child was stillborn.
Mother tested positive for illegal drugs during the pendency of Ken's and Helen's cases, including while pregnant with Helen. Specifically, Mother tested positive for marijuana use and exposure in December 2013 and she tested positive for marijuana use and exposure, and benzoylecgonine and cocaine use in January 2014. Although she had tested positive for drugs when she was pregnant with Helen, Mother tested negative for drugs when Helen was born in March 2014. Mother also tested positive for: benzoylecgonine and cocaine use in May 2014; marijuana exposure in August 2014; marijuana exposure and benzoylecgonine and cocaine use in October 2014; marijuana exposure in January and June 2015; marijuana use in June 2016; marijuana use and exposure in September 2016; marijuana exposure in October 2016; and marijuana use and exposure in February 2017. Mother also tested positive for a prescription drug in April 2017 and she provided her prescription for the medication.
Mother testified that neither she nor Father had used illegal drugs and she had no explanation for their positive tests. She also testified that her home was drug-free and that if the children were returned to her she would not allow anyone to use drugs around them.
(2) Father
Father, who began smoking marijuana at age seventeen, smoked three to four blunts a day before he moved to Houston in 2013. He admitted that he tried crack cocaine once and claimed that he quit using drugs in 2013. Father denied using cocaine when he came to Texas with Ken or at any point prior to bringing him to Houston. Father began drinking alcohol at age twenty.
A blunt is cigar that has been hollowed out and filled with marijuana.
Father tested positive for illegal drugs during the pendency of Ken's and Helen's cases. Specifically, Father tested positive for: marijuana use and exposure and benzoylecgonine, cocaethylene, cocaine and alcohol use in December 2013 and January 2014; marijuana use and exposure and benzoylecgonine and cocaine use in March 2014; benzoylecgonine, cocaine, and alcohol use in May 2014; marijuana exposure in August and October 2014 and June 2015; marijuana exposure and benzoylecgonine and cocaine use in April 2016; alcohol use and marijuana exposure in September 2016; alcohol use in February 2017; and butalbital use in April 2017.
Father insisted that he had a prescription for the butalbital found in his urine in 2017 and that he began using Mother's butalbital prescription when his prescription was exhausted. He thought he tested positive for cocaine because someone who had been living with them at the time was lacing Father's marijuana joints with cocaine. Father testified that the person no longer lived with Mother and Father.
2. Substance Abuse Assessments
The 2015 orders required Mother and Father to submit to a new substance abuse assessment and follow its recommendations. This requirement also required each parent to report all current and past drug use honestly and completely. Mother and Father completed their substance abuse assessments in January 2015. They also completed the additional substance abuse classes recommended by the assessment and received certificates of completion of the program in March 2016.
Both parents, however, tested positive for drug use or exposure after completing their assessments and after successfully completing drug counseling. Mother tested positive for marijuana exposure twice after she completed her assessment in January 2015. After she completed drug counseling in March 2016, she tested positive four times for marijuana use and/or exposure.
Father tested positive for marijuana exposure once after his January 2015 assessment. He also had five positive drug tests after he completed drug counseling in March 2016. Those five tests were positive for marijuana exposure and/or marijuana, benzoylecgonine, cocaine, butalbital, or alcohol use.
3. Alcoholis Anonymous or Narcotics Anonymous
Mother and Father were also required to attend twice weekly alcoholics anonymous or narcotics anonymous meetings, in addition to or in accordance with any recommendations from the substance abuse assessment. Each was also required to obtain a sponsor with at least five years of sobriety and provide signed attendance sheets to his or her caseworker on the first of every month. Neither parent complied with these requirements.
Father insisted that he had been attending narcotics anonymous classes two to three times per week. Father admitted, however, that he never obtained a narcotics anonymous sponsor and he only provided the caseworker with proof that he had been attending narcotics anonymous classes between October 2015 and March 1, 2016.
Mother claimed that she and Father attended narcotics anonymous meetings three times per week and she denied that she had not given attendance sheets to the caseworker. The caseworker, however, did not have any attendance records for Mother after March 1, 2016. Mother admitted that she did not have an NA sponsor. She claimed that she had a sponsor in the past, but she could not recall the sponsor's name.
4. Individual Counseling
The 2015 orders required Mother and Father to continue in individual counseling as directed by the Department, and the Department required each to continue in individual counseling until successfully discharged.
Mother and Father were originally referred to Beal Counseling for individual therapy. After several months of therapy, Mother was unsuccessfully discharged by Beal and requested a referral to a new therapist. Father, who had also been receiving therapy from Beal, requested a new referral before Beal unsuccessfully discharged him. Both parents were referred to Monica McClain for individual therapy in September 2016. After attempting to work with both parents for several months, McClain unsuccessfully discharged Mother and Father due to poor attendance and poor progress. Father admitted that he never spoke with McClain. Mother admitted that she had not been successfully discharged from individual therapy by Beal, but she did not know that her second therapist had unsuccessfully discharged her from therapy.
5. Visitation
The 2015 orders required Mother and Father to attend all visitations with Ken and Helen.
Before Ken's readmission to TCH in May 2017, the parents' visits were scheduled for every other Monday at the Department's office. Mother testified that she attempted to visit as much as she could and that the children were happy to see her and Father when they visited. The children's caseworker acknowledged that Mother and Father had visited with the children on a regular basis until 2017. Although they had missed a few visits because of transportation issues, and Father's starting a new job in 2017, they were otherwise consistent. Mother and Father also visited with Ken after he was readmitted to TCH in May 2017, but they did not attend their most recent visit scheduled in July. Mother and Father provided snacks and drinks for the children during some visits. They also once gave a birthday party for Ken and provided him gifts, and they gave the children gifts one Christmas.
The Department did not have any concerns about the parent's visits with the children, except for one visit when Helen pinched Mother, Mother "told [Helen] to stop and [Helen] didn't, so [Mother] tapped—she hit her twice and I had to go into the visitation room and address it." That incident made the caseworker question Mother's parenting skills.
The record also reflects some confusion regarding whether the parents' visits had to be supervised in general and whether the parents' had to be supervised by a caseworker when they visited Ken in the hospital. Dr. Leung explained that Mother and Father were required to have a security escort when they visited Ken at TCH, but no other barriers prevented them from visiting. Dr. Leung believed that Mother and Father had only visited Ken at TCH a handful of times. Both Mother and the caseworker, however, believed that Mother and Father had to be supervised by a caseworker when they visited Ken in the hospital. According to the caseworker, the continuing restrictions were placed on the parents by TCH security, not the Department.
The caseworker also testified that she arranged for another caseworker or Helen's foster mom to supervise any visits that she was unable to attend. When she notified the parents that the foster mother would be supervising a visit, Mother cancelled the visit. Mother testified that she believed that she and Father were able to visit by themselves and she became confused when they had to be supervised. Mother also claimed that she was never told that she could have a visit supervised by the foster parent, but she would want such a visit.
6. Ken's Medical Appointments
The 2015 orders required Mother and Father to attend all of Ken's scheduled doctor appointments to ensure that they received firsthand knowledge about his medical care and treatment. The court also ordered the Department to "follow up with Texas Children's Hospital to inquire [as to] whether parents may attend appointments separately," in December 2015. The caseworker set up a meeting with TCH and the parents in February 2016. As a result of that meeting, the parties entered into an agreement that allowed Mother and Father to attend Ken's medical appointments if they complied with TCH's behavioral requirements and only one parent attended any given appointment. TCH did not require anyone from the Department to attend these medical appointments, the purpose of which was to allow the parents to learn about Ken's problems and medical treatment.
Despite the fact that they signed the February 2016 agreement, Mother and Father initially denied knowing about it. Mother incorrectly believed that the Department had restricted their access to the hospital and she denied that the Department had worked with TCH to ease these access restrictions in 2016. Father also denied knowing that the Department had worked with TCH to ease these restrictions.
According to Ken's caseworker, Ken had medical appointments approximately every month with different physicians beginning in February 2016. The caseworker testified that she notified Mother about Ken's first doctor appointments, but that it was Mother's responsibility to obtain information regarding any follow-up appointments. Mother only attended five or six appointments after February 2016.
Mother, who is not working, admitted that she had only attended two or three of Ken's appointments from March 2016 to July 2017, a period of nearly eighteen months. Mother acknowledged that she did not attend any of Ken's appointments in the six to seven months before trial. Father only attended one appointment during the same eighteen-month time period.
Mother explained that she only attended the appointments that the caseworker brought to her attention and she claimed that that the caseworker had not informed her of all of Ken's medical appointments. Mother also insisted she would have gone to more appointments if the caseworker that told her about them. Mother and Father also claimed that they were unaware that they could attend Ken's medical appointments without caseworker supervision and testified that the caseworker had told them that they could not visit Ken at TCH without the caseworker present, even after the February 2016 agreement with TCH. Mother and Father also insisted that they would have visited Ken at TCH more had they known they could visit without the caseworker.
7. Ken's Medical Care
The 2015 orders required Mother and Father to complete any available training concerning Ken's care. Mother and Father did not attend any training classes at TCH and the caseworker was not aware of anything that Mother and Father had done to learn to care for Ken since the 2015 orders were rendered.
The parents testified that they wanted training to handle Ken's medical care but they were not offered any training by the hospital.
However, the family was offered training after Ken was first admitted to TCH in November 2013 and Mother twice refused to participate in classes that would have taught her to feed Ken through his nasogastric tube. Father also did not know how to use Ken's feeding tube and admitted that he had not tried to register for any training since after the April 2015 order in Ken's case. Both parents also admitted that they had not attended any training since TCH had agreed to ease their access to the hospital in February 2016. Dr. Leung testified that TCH would have trained the parents to care for Ken if the parents had requested such training.
A nasogastric tube is a feeding tube that is passed through the nose and down through the nasopharynx and esophagus into the stomach.
E. Final Order
On September 28, 2017, the trial court signed a final order naming the Department as Ken's sole managing conservator. The order also terminated Father's rights to Ken pursuant to Texas Family Code sections 161.001(b)(1)(D), (E) and (O), and section 161.001(b)(2), and terminated Mother's rights to Ken pursuant to Texas Family Code sections 161.001(b)(1)(D), (E), and (O). See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (O), & 161.001(b)(2).
With regards to Helen, the order appointed the Department as Helen's sole managing conservator and terminated Father's parental rights pursuant to Texas Family Code section 161.001(b)(1)(D), (E), and (O), and section 161.001(b)(2), and terminated Mother's rights to Helen pursuant to Family Code sections 161.001(b)(1)(D),(E) and (O). See TEX. FAM. CODE ANN. §§ 161.001(b)(1) (D), (E), (O), & 161.001(b)(2).
These appeals followed.
Family Code Section 161.004Section 161.004 of the Family Code allows a court to terminate the parent-child relationship after the rendition of an order that denied termination of the parent-child relationship. TEX. FAM. CODE ANN. § 161.004. In a case to terminate parental rights under section 161.004, the Department must establish by clear and convincing evidence that (1) the petition was filed after 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. Id. at § 161.004(a). Clear and convincing evidence is "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE ANN. at § 101.007 (West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
In a hearing under section 161.004(a), "the court may consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child." TEX. FAM. CODE ANN. § 161.004(b). Section 161.004 is the only authority for a trial court to terminate the parent-child relationship based upon evidence presented at a hearing on a previous petition to terminate that was denied. See In re K.G., 350 S.W.3d 338, 352 (Tex. App.—Fort Worth 2011, pet. denied).
Sufficiency of the Evidence
In reviewing legal sufficiency of the evidence in a parental termination case, we must consider all 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 336, 344 (Tex. 2009). 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 that a reasonable fact finder could have disbelieved. Id.; In re G.M.G., 444 S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
In conducting a factual-sufficiency review, we view all of the evidence, including disputed or conflicting evidence. See In re J.O.A., 283 S.W.3d at 345. We should consider whether the disputed evidence is such that a reasonable fact finder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The evidence is factually insufficient only if, "in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction" regarding the finding under review. In re J.O.A., 283 S.W.3d at 345.
The standard of review for legal and factual sufficiency challenges maintains a deferential standard for the fact finder's role, which means the trier of fact is the exclusive judge of the credibility of the witnesses and, accordingly, the weight to be given their testimony. See In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002).
Protection of the best interest of the child is the primary focus of the termination proceeding in the trial court and our appellate review. See In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). A parent's rights to the "companionship, care, custody, and management" of his or her child is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Material and Substantial Change in Circumstances
In her first issue in each appeal, Mother argues that there is legally and factually insufficient evidence supporting the trial court's findings that a material and substantial change occurred since the rendition of the 2015 orders in Ken's and Helen's cases.
A. Applicable Law
Whether a material and substantial change occurred is a question of fact. See Phillips v. Phillips, 701 S.W.2d 651, 652 (Tex. 1985), overruled on other grounds by Martin v. Martin, 776 S.W.2d 572 (Tex. 1989) ("The existence of a material and substantial change in the circumstances of the child or person affected by the child support order or decree is a question of fact for the trier of fact.").
There are no definite guidelines as to what constitutes a material and substantial change in circumstances under section 161.004. In re N.R.T., 338 S.W.3d 667, 679 (Tex. App.—Amarillo 2011, no pet.); see also In re B.L.H., No. 01-06-0817-CV, 2008 WL 864072, at *6 (Tex. App.—Houston [1st Dist.] Mar. 27, 2008, no pet.) (mem. op.). Rather the determination is made by the facts of each case. In re N.R.T., 338 S.W.3d at 679; see also In re B.L.H., 2008 WL 864072, at *6. A material and substantial change in circumstances may be established by either direct or circumstantial evidence. In re A.L.E., 279 S.W.3d 424, 429 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
B. Helen
Mother and Father tested positive for cocaine and marijuana use, and marijuana exposure on multiple occasions after Ken and Helen were taken into the Department's care in December 2013 and March 2014, respectively. Although Mother and Father had completed court-ordered substance abuse assessments, they had not completed the substance abuse counseling recommended by those assessments when the trial court denied the Department's petition to terminate their parental rights to Helen on October 28, 2015. The record also reflects that despite the lack of substance abuse counseling, Father and Mother were able to curtail their drug usage, and all their tests were either negative or positive for only moderate to low-levels of exposure to marijuana from October 2014 to October 2015. Thus, there is evidence that, as of October 28, 2015, both parents might be able to achieve a sober lifestyle with the help of additional services, including drug counseling.
The record also reflects that Mother and Father began using drugs again after they had successfully completed substance abuse counseling in March 2016. Specifically, Father tested positive for cocaine use and marijuana exposure in April 2016. Mother also relapsed and tested positive for marijuana ingestion in June, September, and October 2016. Although the Department filed a petition to terminate Mother's parental rights to Helen in November 2016, Mother continued to use drugs and tested positive for marijuana ingestion and exposure in February 2017.
Viewing the evidence in the light most favorable to trial court's finding, we conclude that the trial court could have formed a firm belief or conviction that there had been a material and substantial change in the parent's circumstances after the October 28, 2015 order, considering the evidence of Mother's and Father's renewed drug usage following their completion of substance abuse counseling in March 2016. See In re J.O.A., 283 S.W.3d at 345; see generally In re J.R.P., 526 S.W.3d 770, 779 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (holding trial court did not abuse its discretion in finding material and substantial change in parent's circumstances considering evidence of parent's drug relapse after first petition to terminate was denied). Further, in view of the entire record, we conclude that the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that there had been a material and substantial change in the parent's circumstances. See In re J.O.A., 283 S.W.3d at 345.
We overrule Mother's first issue with respect to Helen.
C. Ken
Unlike Helen, Ken was not in an adoptive placement when the trial court denied the Department's petition to terminate Mother's and Father's parental rights to him in April 2015. Ken was later placed in a "Primary Medical Needs" foster home on May 12, 2015. Ken's foster mother has a nursing background and has been trained to provide the complex care that he requires. Dr. Leung and Ken's caseworker do not have any concerns about the quality of care she is providing to Ken. According to Dr. Leung, Ken has bonded with his foster mother and has thrived under her care. Although Ken met the medical criteria for a liver transplant in April 2015, he would not have been able to receive a liver given his precarious social situation at the time. He was placed on the transplant list one month after he was placed with his current foster family and remained out of the hospital for two years. In addition to providing for his medical needs, Ken's foster family has also provided him with "a safe, loving, stable, nurturing, drug-free environment" and wanted to adopt him. See In re J.R., No. 07-12-00003-CV, 2012 WL 1605738, at *4 (Tex. App.—Amarillo May 8, 2012, no pet.) (mem. op.) (observing children, who were in foster homes, were "significantly closer, both psychologically and logistically, to places in which they seek adoptive families and stability," thereby supporting finding of material and substantial change in circumstances); Thompson v. Tex. Dep't of Family & Protective Servs., 176 S.W.3d 121, 126 (Tex. App.—Houston [1st Dist.] 2004, pet. denied), overruled on other grounds by Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding child's progress in foster care was change in circumstances because it "ha[d] readied him for a more permanent placement"). The fact that Ken was in an adoptive placement in 2017 is a material and substantial change in his circumstances since the rendition of the previous order in April 2015.
Viewing the evidence in the light most favorable to trial court's finding, we conclude that the trial court could have formed a firm belief or conviction that a material and substantial change in circumstances had occurred since the rendition of the prior order in Ken's case. See In re J.O.A., 283 S.W.3d at 345. Further, in view of the entire record, we conclude that the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that there had been a material and substantial change in Ken's circumstances. See id.
We overrule Mother's first issue with respect to Ken.
Evidence Supporting Termination of Mother's Rights to Ken and Helen
under sections 161.001(b)(D) , (E), or (0)
In her second and third issues in each appeal, Mother argues that there is legally and factually insufficient evidence supporting the trial court's findings that she committed the predicate acts under sections 161.001(b)(D), (E), and (O) with respect to either child.
The trial court also found that Father had committed four predicate acts harmful to Ken and Helen, including a finding that Father had engaged in conduct that endangered the children's physical or emotional wellbeing as set forth in section 161.001(b)(1)(E). Father does not challenge the sufficiency of the evidence supporting this finding on appeal. TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West Supp. 2017).
A. Section 161.001(b)(E)
Subsection (E) allows termination when the parent has "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." TEX. FAM. CODE ANN. § 161.001(b)(1)(E). "Circumstantial evidence may be sufficient to support termination" under section 161.001(E). In re R.F., 115 S.W.3d 804, 810 (Tex. App.—Dallas 2003, no pet.). Circumstantial evidence is "simply indirect evidence that creates an inference to establish a central fact." In re Lipsky, 460 S.W.3d 579, 588-89 (Tex. 2015). "All evidentiary standards, including clear and convincing evidence, recognize the relevance of circumstantial evidence." Id.
For purposes of section 161.001, "'endanger' means to 'expose to loss or injury; to jeopardize." In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam) (quoting Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). "Although 'endanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury." In re M.C., 917 S.W.2d at 269.
A parent's failure to provide appropriate medical care for a child may also constitute endangering conduct for purposes of subsection E. See Smith v. Tex. Dep't of Family & Protective Servs., No. 01-09-00173-CV, No. 01-09-00390-CV, 2009 WL 4359267, at *8 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.) (mem. op.) (citing In re D.E., 761 S.W.2d 596, 600 (Tex. App.—Fort Worth 1988, no writ)); see generally In re M.C., 917 at 270 (stating "neglect can be just as dangerous to the well-being of a child as direct physical abuse").
Parents engaging in illegal drug activity after they know that their parental rights are in jeopardy is sufficient to establish clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered a child's well-being. See Robinson v. Tex. Dep't of Protective & Regulatory Servs., 89 S.W.3d 679, 686-87 (Tex. App.—Houston [1st Dist.] 2002, no pet.); see also In re J.O.A., 283 S.W.3d at 345 ("[A] parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct."). Illegal drug use may support termination under section 161.001(b)(1)(E) because "it exposes the child to the possibility that the parent may be impaired or imprisoned." Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Because it significantly harms the parenting relationship, drug activity can constitute endangerment even if it happens outside the child's presence. See J.O.A., 283 S.W.3d at 345; Walker, 312 S.W.3d at 617. Illegal drug usage during pregnancy is also conduct that endangers the physical and emotional well-being of the unborn child. In re W.A.B., 979 S.W.2d 804, 806 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).
B. Ken and Helen
Ken was severely malnourished, and he had numerous bone fractures because of his malnourishment when Mother and Father brought him to TCH in November 2013. Although he was fourteen-months old, Ken weighed only eleven pounds and was the size of a six-month old baby. His eyes were the color of "yellow highlighters" due to his severe jaundice and his arms and legs were so malnourished that he looked like a child "you might see in a world vision commercial." TCH advised Mother and Father that Ken needed immediate hospitalization to address his extreme nutritional deficiency.
Although contradicted, there is testimony that Mother and Father were angry and skeptical about TCH's concern that Ken might have Alagille syndrome, they were belligerent and combative with hospital staff, and they initially refused to admit Ken to TCH for treatment. According to Dr. Leung, the parent's behavior and refusal to admit Ken to TCH against medical advice furthered delayed Ken from receiving the proper medical treatment and nutritional supplementation that he required.
Mother and Father did not bring Ken to TCH for a liver transplant evaluation or otherwise seek medical care for their son until nine months after he was last seen by a doctor in Louisiana in February 2013. Dr. Leung explained that Ken's nutritional status was so severe that "it certainly warranted assistance by a medical professional earlier" and that Ken's initial misdiagnosis with a different, but equally serious, liver disease did not explain his degree of malnourishment when he arrived at TCH or the parent's failure to seek medical care for him during the prior nine months. According to Dr. Leung, Mother's and Father's delay in seeking medical treatment for their critically ill and malnourished son had a significant impact on Ken's health and, in his opinion, amounted to medical neglect.
The evidence demonstrating Mother's medical neglect of Ken also supports a finding of endangerment with respect to Helen. See In re D.T., 34 S.W.3d 625, 636-37 (Tex. App.—Fort Worth 2000, pet. denied) (stating parent's conduct with regard to other children can be used to support finding of endangerment even with regard to child born after neglectful conduct occurred); see generally In re S.G.S, 130 S.W.3d 223, 238 (Tex. App.—Beaumont 2004, no pet.) (reasoning that fact finder could infer from actual neglect of one child that physical and emotional well-being of other children was also jeopardized).
In addition to neglecting Ken's medical needs, the record reflects that Mother tested positive for cocaine and/or marijuana use at least seven times after Ken was taken into the Department's custody, beginning in December 2013. Five of those positive tests occurred after Helen was born in March 2014. The evidence also indicates that Mother tested positive for cocaine and marijuana use while she was pregnant with Helen in December 2013 and January 2014, and she tested positive for cocaine use while she was pregnant with her fourth child in October 2014.
Mother's repeated use of illegal drugs during her pregnancies and during the pendency of this case is further evidence that she engaged in conduct which endangered Ken's and Helen's physical and emotional well-being. See Robinson, 89 S.W.3d at 686-87; In re W.A.B., 979 S.W.2d at 806; see also In re D.T., 34 S.W.3d at 636-37 (Tex. App.—Fort Worth 2000, pet. denied) (stating parent's conduct with regard to other children can be used to support finding of endangerment even with regard to child born after neglectful conduct occurred); see generally In re S.G.S, 130 S.W.3d at 238 (reasoning fact finder could infer from actual neglect of one child that physical and emotional well-being of other children was also jeopardized).
Although she admitted that she had smoked marijuana when she was pregnant with her first child, Mother testified that she stopped smoking marijuana approximately two years before Ken, her second child, was born in August 2012. She also testified that she had smoked marijuana in 2013 when she was pregnant with Helen, her third child, but stopped when the learned that she was pregnant. Mother also denied ever using cocaine. She also denied that she had initially refused to admit Ken to TCH in November 2013.
As the trier of fact, the trial court was not required to accept Mother's testimony regarding her drug use and could have resolved any disputed evidence against her. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re G.M.G., 444 S.W.3d at 60 (stating fact finder is "free to make its own credibility assessments, resolve conflicts in the testimony, and decide what weight to give the witnesses' testimony"). Similarly, the trial court was entitled to resolve conflicts in the testimony regarding whether Mother initially refused to admit Ken for treatment against her. See In re H.R.M., 209 S.W.3d at 108; In re G.M.G., 444 S.W.3d at 60.
Viewing the evidence in the light most favorable to trial court's finding, we conclude that the trial court could have formed a firm belief or conviction that Mother had engaged in conduct which endangered Ken's and Helen's physical or emotional well-being in violation of section 161.001(b)(1)(E). See In re J.O.A., 283 S.W.3d at 345. Further, in view of the entire record, we conclude that the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that Mother had engaged in conduct which endangered Ken's and Helen's physical or emotional well-being in violation of section 161.001(b)(1)(E). See id.
Because we have determined that there is sufficient evidence supporting the trial court's predicate findings under subsection (E), we do not need to consider whether there is sufficient evidence supporting the other predicate findings.
We overrule Mother's second and third issues with respect to Ken and Helen.
Best Interest of the Child
In his sole issue on appeal, Father argues that there is factually insufficient evidence to support the trial court's finding that termination of his parental rights was in Helen's or Ken's best interest. Mother is also challenging the legal and factual sufficiency evidence supporting the trial court's finding that termination of her parental rights is in Helen's best interest. She is not challenging the trial court's best interest finding with regard to Ken.
Father concedes that the evidence is legally sufficient to support the trial court's best interest termination finding and that the evidence is sufficient to support the trial court's finding that he committed a predicate act under section 161.001(b)(1)(O) because he did not successfully complete his family service plan since the last order. TEX. FAM. CODE ANN. § 161.001(b)(1)(O) (West Supp. 2017).
Specifically, Father argues that it is not in Ken's or Helen's best interest to terminate his parental rights because he is bonded with, and loves his children, he regularly visited them until late in the case when he was unable to because of his new employment, he attended several individual therapy sessions, and he tested negative for illegal drugs before his alleged relapse. Father also argues that he can provide financially for his children and be part of his son's support group.
Mother argues that the evidence is legally and factually insufficient to support a finding that the termination of her rights is in Helen's best interest because Mother and Father can provide a stable home for Helen and are prepared to take Helen home with them. According to Mother, Ken came into care was due to the parents' lack of a basic understanding of Ken's medical situation, which was compounded by his initial misdiagnosis and possibly by Mother's mental health or diminished mental capabilities. Mother denies any drug use and argues that her positive drug tests alone are insufficient to prove that she used drugs during her pregnancy with Helen.
A. Applicable Law
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 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement of the child in a safe environment, however, is also presumed to be in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2017). A child's need for permanence through the establishment of a "stable, permanent home" has been recognized as the paramount consideration in a best-interest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).
Courts may consider the following non-exclusive factors in reviewing the sufficiency of the evidence to support the best interest finding: 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 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). This list of factors is not exhaustive, however, and evidence is not required on all the factors to support a finding that terminating a parent's rights is in the child's best interest. Id.; In re D.R.A., 374 S.W.3d at 533.
The Texas Family Code also sets out similar factors to be considered in evaluating the parent's willingness and ability to provide the child with a safe environment, including: the child's age and physical and mental vulnerabilities; the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; and whether the child's family demonstrates adequate parenting skills, including providing the child with minimally adequate health and nutritional care, a safe physical home environment, and an understanding of the child's needs and capabilities. TEX. FAM. CODE ANN. § 263.307(b); In re R.R., 209 S.W.3d at 116.
Courts may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence when conducting the best interest analysis. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).
Evidence supporting termination under one of the predicate grounds listed in section 161.001(b)(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 28 (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest). A parent's past conduct is probative of his future conduct when evaluating the child's best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.). A fact finder may also infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent when assessing the best interest of the child. In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.) (citing In re B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth 2004, pet. denied)).
B. Analysis
Helen was three-years old and Ken was four-years old during the 2017 trial. Although there is no evidence in the record about Ken's or Helen's desires, Father testified that he loves his children, he has a bond with them, and he wants to continue to be a part of his children's lives. Mother also testified that she loves her children very much and wants the opportunity to parent both children and that the children are happy to see her and Father when they visit.
There is also evidence, however, that Ken and Helen are bonded with their respective foster families and that the families plan to adopt the children after Mother's and Father's parental rights are terminated. Helen, who has never lived with either Mother or Father, has lived with her foster family since she was four-days old. She knows her foster parents as "mommy" and "daddy" and she considers the other children in their household to be her siblings. Ken had lived with his foster family for two years when trial began in 2017. Ken spent most of that time at home with his foster family until he was readmitted to TCH in May 2017. His caseworker and his Child Advocates volunteer testified that Ken is thriving in his adoptive placement and Dr. Leung testified that Ken is bonded with his foster mother.
There is also evidence in the record with respect to Mother's and Father's ability to meet the children's present and future physical and emotional needs and the dangers posed to the children's present and future physical and emotional needs. Among other things, the trial court found that Mother and Father had committed multiple predicate acts harmful to the children, including a finding that each parent had engaged in conduct that endangered the children's physical or emotional well-being under subsection E.
We have already held that there is both legally and factually sufficient evidence supporting the trial court's finding that Mother engaged in conduct that endangered the children's physical or emotional well-being under subsection E based on the evidence of medical neglect and her continued drug use, both during the pendency of Ken's and Helen's cases and while she was pregnant. See In re C.H., 89 S.W.3d at 28 (stating evidence proving subsection E may be considered in assessing probative evidence that termination is in child's best interest).
Father, who does not contest the trial court's finding that he engaged in conduct that endangered the children's physical or emotional well-being under subsection E, has admitted to using marijuana and tested positive for cocaine and marijuana use and marijuana exposure on multiple occasions while the children's cases have been pending. Like Mother, there is also evidence that Father medically neglected Ken by not bringing Ken to TCH for a liver transplant evaluation until nine months after Ken's last doctor's appointment, failed to seek medical treatment for Ken during that same time, and initially refused to admit Ken to TCH for medical treatment against medical advice. There is also testimony from Ken's doctor that Father's delay in seeking medical treatment for Ken had a significant impact to his health. Despite being given additional time to do so, Father did not acquire the specialized training needed to manage Ken's complex day-to-day medical needs.
In addition to neglecting Ken and his medical needs, the record also reflects that Father tested positive for illegal drug use and exposure multiple times while Ken's and Helen's cases were pending. Despite having completed a substance abuse program in March 2016, Father relapsed and tested positive for cocaine in April 2016.
This evidence of past medical neglect and continued drug use and exposure is indicative of the parent's inabilities to meet their children's present and future physical and emotional needs, as well as the present and future physical and emotional dangers posed to both children. See In re O.N.H., 401 S.W.3d at 684 (stating parent's past conduct was probative of his future conduct when evaluating child's best interest); see also In re D.M., 452 S.W.3d at 471 (stating court may infer that past endangering conduct may recur if child was returned for purposes of determining whether termination is in child's best interest). Mother's and Father's past neglectful conduct is also an indication of their parenting abilities, or lack thereof. In re J.S.G., No. 14-08-00754-CV, 2009 WL 1311986, at *9 (Tex. App.—Houston [14th Dist.] May 7, 2009, no pet.) (mem. op.).
Unlike Mother and Father, Ken's foster mother, who has a background in nursing, has been trained to care for Ken, and has demonstrated that she is able to meet his substantial day-to-day medical needs. Ken also has a private duty nurse to help his foster family meet his ongoing medical needs when he is at home. Ken, who is developmentally delayed, receives occupational, speech, and physical therapy and has made significant developmental and social progress while in his foster family's care. His foster family has also arranged to homeschool him when he is old enough. The Department had no concerns about the care that Ken is receiving from his foster family. Ken's doctor expressed similar views with respect to Ken's bond with his foster mother and her ability to care for him and meet his medical needs.
Helen, who has lived with her foster family since birth, has no medical issues and is on target to meet all her developmental milestones. Her foster family has enrolled her in Head Start and take her to all of her medical and dental appointments. Helen's caseworker testified that they do not have any concerns with the quality of care Helen is receiving from her foster family.
By all accounts, Ken's and Helen's foster families have provided the children with loving, safe, stable, nurturing, and drug-free home environments and both Ken and Helen are thriving in their respective adoptive placements, thus demonstrating that the foster families are able to meet the children's present and future physical and emotional needs. The evidence also indicates that Ken's and Helen's foster families do not pose a present or future physical or emotional danger to the children. See generally In re O.N.H., 401 S.W.3d at 684 (stating parent's past conduct is probative of his future conduct when evaluating child's best interest). This evidence also indicates that Ken's and Helen's foster families have taken advantage of the services available to them, i.e., medical training for the foster parents, and educational and therapy services for the children.
Unlike the foster parents, Mother and Father have neither taken full advantage of the programs available them nor demonstrated that they are willing and able to effect positive environmental and personal changes within a reasonable period. Although the trial court denied the Department's first petition to terminate their parental rights and gave both parents an opportunity to use the programs and services available to them to achieve sobriety and acquire the skills and knowledge necessary to care for Ken, Mother and Father continued to test positive for drug use and exposure even after completing drug counseling. They also failed to provide documentation that they were attending alcoholics anonymous or narcotics anonymous meetings at least twice per week or secure a sponsor with at least five years of sobriety. Mother and Father were also unsuccessfully discharged from two different individual counseling programs due to lack of progress and lack of attendance, and they both relapsed after completing drug counseling. Furthermore, neither parent attended all of Ken's medical appointments or acquired the specialized training needed to manage Ken's extensive medical needs after the denial of the first petition, thus demonstrating they were either unwilling or incapable of providing the extensive medical care that Ken requires pre- or post-transplant.
The fact that Father and Mother changed residences three times in the two years preceding the 2017 modification hearing indicates a possible lack of stability with respect to their household. Mother's and Father's acts and omissions, including their medical neglect of Ken and their continued drugs use despite knowing that their parental rights were at stake, also indicate that the existing parent-child relationships are not proper.
Viewing the evidence in the light most favorable to trial court's finding, we conclude that the trial court could have formed a firm belief or conviction that that termination of Mother's parental rights is in Helen's best interest and that termination of Father's parental rights is in the best interest of both Helen and Ken. See In re J.O.A., 283 S.W.3d at 345. Further, in view of the entire record, we conclude that the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination of Mother's parental rights is in Helen's best interest and that termination of Father's parental rights is in the best interest of both Helen and Ken. See id.
We overrule Mother's and Father's challenges to the trial court's best interest findings in both Helen's and Ken's cases.
Conclusion
We affirm the trial court's final order in both cases. Any pending motions are dismissed as moot.
Russell Lloyd
Justice Panel consists of Justices Bland, Lloyd, and Caughey.