Summary
holding evidence sufficed to support best-interest finding as to one child but that evidence was insufficient to support best-interest findings as to two others
Summary of this case from In re A.J.D.-J.Opinion
NO. 01-20-00720-CV
04-06-2021
IN THE INTEREST OF D.G., E.G., AND V.G., CHILDREN
On Appeal from the 313th District Court Harris County, Texas
Trial Court Case No. 2018-04748J
MEMORANDUM OPINION
The trial court terminated the parental rights of appellants, D.P.R. (Mother) and C.G. (Father), to their three children, D.G. (Dana) and twins V.G. (Violet) and E.G. (Eve). Mother and Father both appeal, arguing that the evidence was legally and factually insufficient to support termination of their parental rights. Father also asserts on appeal that the evidence was legally and factually insufficient to support the trial court's appointment of the Texas Department of Family and Protective Services (DFPS) as the sole managing conservator of the children and that the trial court erred in denying his motion for directed verdict.
We conclude, in part, that the evidence was factually insufficient to support termination of Mother's and Father's parental rights to Violet and Eve, and so we reverse that portion of the trial court's order of termination and remand for further proceedings. We further conclude that the evidence was sufficient to support the trial court's termination of both Mother's and Father's parental rights to Dana, and we overrule Father's remaining issues regarding the appointment of DFPS as sole managing conservator and denial of the motion for directed verdict, so we affirm the remainder of the trial court's final order of termination.
Background
DFPS first became involved with the family in 2018, when Dana, who was five years old at the time and is autistic, was found wandering in the street at approximately 11:30 p.m. without adult supervision. DFPS put the family on a family-based services plan so that the children could remain in the home. However, nine days later, Dana again left her home unsupervised and walked into a neighbor's home. When the police returned Dana home, they found the twins, who were approximately 16 months old, unsupervised in the living room and Mother sleeping in another room. DFPS removed the children at that time.
DFPS provided a family plan of service for both Mother and Father, which included requirements that Mother and Father both refrain from using drugs and comply with any drug-testing requirements. The parents had completed their service plans by October 2019, and DFPS was making plans to return the children to Mother and Father when a DFPS supervisor observed interactions during visitations that made her concerned about the possibility that the parents were using drugs. Also in October 2019, the DFPS caseworker observed signs of domestic violence that raised additional concerns. The DFPS supervisor asked that the parents be drug tested. In November 2019, Mother tested positive for cocaine and marijuana, and Father tested positive for marijuana. After some further attempts to mediate the case and reunify the family, DFPS ultimately proceeded to a final hearing, seeking termination of both Mother's and Father's parental rights.
At the final hearing, case worker Donnisha Tate testified regarding the incidents of neglectful supervision that led to the children's removal by DFPS. She acknowledged that Mother and Father had completed the services required on their family service plan, but she also testified that their drug use violated the requirements of their service plan. Tate testified that, after the positive drug tests in November 2019, DFPS requested that both Mother and Father take additional drug tests in December 2019 and January 2020, but they failed to comply. Over the next several months, DFPS requested multiple drug tests from both parents. Both parents tested positive for marijuana multiple times, and both had at least one instance in which they refused to provide a sample for tests. Before the final hearing in August 2020, Mother and Father both tested positive for marijuana in May and June 2020, and then both tested negative in July 2020.
Monica Bossier, an employee from the lab that collected the screening samples, testified regarding an incident that occurred on April 15, 2020, when Mother provided a urine sample that was cold. Bossier stated that there were guidelines regarding the proper temperature range for the samples and that a cold sample "implies that the sample did not come from the person [being tested]." She asked Mother to sit, drink some water, and wait to provide a new sample, but Mother decided to leave the facility without providing a new sample.
Tate testified that in addition to the neglectful supervision that had resulted in the children's removal and the evidence of drug use, she had concerns regarding domestic violence. During an October 2019 visit, Tate observed scratches to Mother's head and neck and to Father's head. They told Tate that they had been scratched by a chicken, but Tate did not believe them, testifying that the scratches did not look like they had come from an animal. Tate further testified that during visitations, she would "see the tension with Mother, not necessarily with [Father]." She testified that while Father was paying attention to Dana, Mother "would come over there and grab [Dana] and take [her] from the father." Tate also observed that if Father would not follow Mother's "directive orders," she would give him "mean stares" and "start tossing things around in the family visit room, aggressively picking up things." During another visitation, Tate observed Mother attempt "to forcefully sit [Dana] on her lap." Tate testified that Mother "was gripping [Dana] very hard" and at one point, Mother "had her arm around close to [Dana's] neck." Tate intervened, and she stated that Mother gave her "pushback—aggressively pushed back at that family visitation." Tate warned both parents that the visitations would be canceled if Mother continued with that behavior.
Tate testified that the parents attended their visitations with the children regularly. She did not observe any concerns during Father's visits with his children, although she did sometimes have to coach him regarding how to interact with Dana. She recounted one incident when the children were playing on a playground near the DFPS office and Dana ran toward the street. Neither Mother nor Father noticed her, and Tate had to make them aware of what Dana was doing. On another occasion, Father "did not recognize the child not wanting to go on the slide. She was crying. She was trying to push back to get away from going down the slide, but Father continued to try to have her go down the slide." Tate intervened, explaining to Father that Dana was nonverbal, and he "had to go based off of her expression." He then he let Dana come down off the slide. Other than the difficulties regarding her interactions with Dana and Father, Mother's interactions during visitations were also good.
Tate's supervisor, Michelle Postel-Salinas, testified regarding specific incidents she observed that raised concerns about both Mother and Father. She testified that she observed Father interact with one of his children during a visitation and saw that the child was "fighting with him, like, didn't want to be held, didn't want to be forced. And he was just, like, basically ignoring it." Postel-Salinas was concerned by Mother's frustration and "anger," noting that Mother later "broke down in tears" and her "emotions were all over the place." It was these interactions that prompted her to have the parents tested for drug use. Postel-Salinas also observed Mother have inappropriate interactions, particularly with Dana. She stated that Mother was "unruly" with Dana and "acted like she didn't want to be bothererd; like she was kind of frustrated with her." Postel-Salinas was likewise concerned that, even after DFPS had offered family-based services to ensure Dana's safety, the parents had still failed to adequately supervise her. She was concerned about lack of supervision for the children if they were returned home, because Mother did not appear capable of keeping them safe, and Father was frequently not home. Finally, she was concerned about Mother's and Father's lack of honesty. The parents' failure to give a complete picture of the family's background prevented DFPS from being able to provide proper services.
Regarding the children themselves, Tate testified that Dana, the oldest, had severe special needs. When Dana came into DFPS care, she was essentially nonverbal and had other developmental delays. Her current foster placement was meeting her needs, and she was getting multiple types of therapy, including Applied Behavioral Analysis therapy and speech therapy. Dana had improved tremendously in the foster home, and Tate testified that DFPS was concerned that Dana would regress if she was "placed in a home where the parents weren't as responsible as the current caregivers." Tate stated that, in her opinion, she did not believe the parents were ready to have the children returned to them as of the time of the final hearing.
Tate also testified that, although Father had completed his family services and otherwise complied with DFPS's requests, DFPS was concerned about Father's ability to protect and supervise the children appropriately, with the twins being under the age of four and Dana having autism and communication delays.
Mother testified that she had complied with everything that DFPS had requested of her. She understood that her children were removed because Dana kept getting out of the house, but she testified that she and Father had moved to a different house that was more secure. She did not think the children would be in any danger if they were returned home. When asked how Dana was able to get out of the house in the middle of the night, she testified that the door in their home at that time did not have the proper latches. Mother testified that they "secured the door" after Dana got out the first time, but she and her mom, with whom she was living, had a disagreement. Mother's mom left without letting Mother know she was leaving, and so Mother was not "able to lock the top latches."
Mother wanted the children returned to her and Father, and she believed that was in the children's best interest because she loved them and missed them. Finally, Mother testified that she understood Dana's special needs and thought she would be able to provide the care Dana needs. When questioned further, she testified that Dana was diagnosed with autism after she was removed by DFPS and that, prior to that diagnosis, she did not have any concerns about Dana's development despite the fact that she was not speaking at age five. Mother further acknowledged that she had previous convictions for theft and assault.
Father likewise testified that he was home on the occasions that Dana got out of the house, and he acknowledged that it was dangerous for a young child to be wandering on a busy street late at night. Father testified that after Dana got out the first time, they added additional latches and replaced the door handle. Dana got out the second time because his mother-in-law did not communicate that she had left, and so the latches were not securing the door. He understood that Dana had been diagnosed with autism, stating that she was "high functioning" and that her "autism is not that bad." He had not had any concerns about her development or ability to learn and socialize prior to her removal from his home.
Dr. Tioana Maxwell, the licensed clinical psychologist who provided an evaluation of the parents, testified as well. She testified that Mother's IQ was "borderline for an intellectual disability." Father's IQ was likewise in the range that could indicate intellectual disability, but she did not give either parent a formal diagnosis because she believed further testing was necessary to account for a possible language barrier. Dr. Maxwell expressed concern that, during the substance abuse component of the evaluation, the parents reported only occasional alcohol use. Neither parent disclosed any drug use, despite the fact that Mother had tested positive for both cocaine and marijuana use, and Father had tested positive for marijuana use during the pendency of the case. Dr. Maxwell was concerned about the "underreporting" of relevant information such as drug use or that Dana had autism, which she found "alarming" because it prevented her from completing an appropriate evaluation and prevented DFPS from providing the services that they needed. Dr. Maxwell testified that she had concerns about the parents' ability to supervise the children effectively and safely. She believed Father "would have a struggle with parenting just based on the underreporting of what the situation is," pointing out that he would have to be responsible for accurately providing information to doctors and at therapy appointments. Dr. Maxwell believed that such difficulties could "possibly" be a danger to Dana's wellbeing.
The twins' foster mother testified that they were "delayed" when they arrived in her care. Violet, in particular, did not speak and was not meeting developmental milestones. Eve was "a little bit more verbal," but she was not meeting her milestones either. The children were also "very angry" and would yell, and they had emotional issues. Eve was aggressive sometimes and did not interact appropriately. The foster mother stated, "She would just stay in one area. She wasn't really playing. So, we just had to show her that it was okay to play and not just sit there." Both girls required play therapy, and Violet also required speech therapy. Since they had been in her home, the twins had improved tremendously. Their speech and behavior had improved, and they were hitting their milestones. She stated that the twins were bonded with the other child in the foster home and that the foster family loved the twins. She was willing to adopt the twins if given the opportunity. She also had been facilitating visitation between the twins and Dana, and she was willing to continue to do so.
Dana's foster mother also testified. She testified that when Dana arrived at her house, she was dirty and her hair was matted. Dana was small for her age and demonstrated a lot of behavioral problems like yelling and refusing to make eye contact. She was nonverbal and she seemed "delayed." Dana was subsequently diagnosed with autism, and she required several therapies, including applied behavioral analysis therapy, occupational therapy, and speech therapy. Dana had been with her foster family approximately two years, and she had improved. Dana was talking, reading, and meeting developmental milestones. Dana had bonded with the foster mother and seemed like a completely different child from the one that arrived at her house. She was willing to adopt Dana if she was given the opportunity. Like the twins' foster mother, she was willing to continue with visitations between the siblings. Both foster mothers testified that getting the children to their various therapy appointments was time consuming and required a lot of work to plan and carry out.
DFPS and the children's attorney ad litem requested that the trial court terminate both Mother's and Father's parental rights to all three children. The trial court did so, finding that the parents had violated Family Code subsections 161.001(b)(1)(E), (O), and (P), and that termination was in the children's best interest. The trial court then named DFPS as the children sole managing conservator. This appeal followed.
See TEX. FAM. CODE § 161.001(b)(1)(E) (providing that court may terminate parental rights if 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"); (O) (permitting termination on finding that parent failed to comply with provisions of court-ordered family service plan); (P) (permitting termination if parent "used a controlled substance . . . in a manner that endangered the health or safety of the child, and: (i) failed to complete a court-ordered substance abuse treatment program; or (ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance").
Termination of Parental Rights
In their first four issues, both Mother and Father assert that the evidence was legally and factually insufficient to support the trial court's findings under Family Code subsections (E), (O), and (P) and that termination was in the children's best interest.
A. Standard of Review
In a case to terminate parental rights under Texas Family Code section 161.001, DFPS must establish, by clear and convincing evidence that (1) the parent committed one or more of the enumerated acts or omissions justifying termination, and (2) termination is in the best interest of the child. TEX. FAM. CODE § 161.001(b). 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." Id. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
When reviewing the legal sufficiency of the evidence in a case involving termination of parental rights, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that there existed grounds for termination under section 161.001(b)(1) and that termination was in the best interest of the child. See TEX. FAM. CODE § 161.001(b)(1), (2); In re J.F.C., 96 S.W.3d at 266. In doing so, we examine all the evidence in the light most favorable to the finding, assuming the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." In re J.F.C., 96 S.W.3d at 266. We must also disregard all evidence that the factfinder could have reasonably disbelieved or found to be incredible. Id.
When conducting a factual sufficiency review, we consider and weigh all the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "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, then the evidence is factually insufficient." Id. (quoting In re J.F.C., 96 S.W.3d at 266). We give due deference to the factfinder's findings, and we cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
We cannot weigh witness credibility issues that depend on the appearance and demeanor of the witnesses because that is the factfinder's province. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). And, even when credibility issues appear in the appellate record, we defer to the factfinder's determinations as long as they are not unreasonable. Id.
B. Predicate Findings
We turn first to the complaint that the evidence was legally and factually insufficient to support the trial court's predicate findings under Family Code section 161.001(b)(1). The trial court terminated the parental rights of both Mother and Father pursuant to subsections 161.001(b)(1)(E), (O), and (P). Both Mother and Father challenge these findings.
DFPS argues that there was legally and factually sufficient evidence to support the trial court's finding on subsection 161.001(b)(1)(O), and we agree. Subsection 161.001(b)(1)(O) states that a parent's rights can be terminated if there is clear and convincing evidence that the parent has:
[F]ailed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child[.]TEX. FAM. CODE § 161.001(b)(1)(O).
Neither Mother nor Father contests that DFPS has been the children's temporary or permanent managing conservator for at least nine months, that it took custody of the children as a result of a removal from the parent under Chapter 262 for abuse or neglect, or that the trial court issued an order establishing the actions necessary for the parents to obtain the return of the children. See id.; In re J.M.T., 519 S.W.3d 258, 266 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). They argue, instead, that DFPS provided insufficient evidence that they did not comply with the court order.
DFPS presented evidence that one condition of the family plan of service, incorporated in the trial court's order, required that both parents refrain from using illegal drugs and comply with drug testing requirements. DFPS presented evidence that both parents tested positive for illegal drugs during the pendency of the case and, at times, failed to comply with requests to submit to drug testing. This demonstrates that both parents failed to comply with the provisions of the court order under subsection (O). A parent's failure to complete even one requirement of the family service plan may support termination under this subsection. See In re J.M.T., 519 S.W.3d at 267; In re M.C.G., 329 S.W.3d 674, 675-76 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
Mother and Father both point to evidence in the record that they completed nearly all the required services and complied with the remainder of the court order. However, substantial or partial compliance with a court-ordered family service plan is generally insufficient to avoid termination pursuant to subsection (O). See In re J.M.T., 519 S.W.3d at 267; see also In re M.C.G., 329 S.W.3d at 676 ("The Family Code does not provide for substantial compliance with a family service plan."). Whether a parent has "done enough" to comply with the family-service plan to comply with a court order under subsection (O) is generally a fact question. In re S.M.R., 434 S.W.3d 576, 584 (Tex. 2014). We defer to the fact-finder's determination that the failed drug tests and refusals to comply with testing requests demonstrated a failure to comply with the court order sufficient to terminate under subsection 161.001(b)(1)(O).
We must also consider the parents' challenge to the sufficiency of the evidence under subsection (E). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). Subsection 161.001(b)(1)(E) requires the trial court to find by clear and convincing evidence that 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 § 161.001(b)(1)(E). Subsection (E) requires that the cause of the endangerment be the parent's conduct alone, as evidenced by either the parent's actions or omissions. See id.
As used in section 161.001, "'endanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). In this context, endanger means to expose a child to loss or injury or to jeopardize a child's emotional or physical well-being. Id.; see In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
The children were removed from Mother and Father's home because they were not being adequately supervised, resulting in Dana repeatedly leaving the home and being found wandering in the area. Courts may look to evidence of parental conduct both before and after a child's removal from the home to determine whether termination is appropriate, and, thus, this is some evidence of endangering conduct by the parents. See In re J.O.A., 283 S.W.3d at 345; Walker v. Tex. Dep't of Fam. and Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
There was also testimony raising concerns about domestic violence and, in particular, Mother's emotional volatility. Tate testified that she observed scratches on Mother and Father during one visitation, and both Tate and her supervisor observed interactions between the parents and Dana that were troubling. "Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment." In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
Additionally, the condition of the children at the time DFPS removed them supports the trial court's finding of endangerment. Dana, who was five when she came into DFPS custody, was nonverbal. Her foster mother also testified that Dana was dirty, had matted hair, and was small for her age. Dana was subsequently diagnosed with autism. However, both Mother and Father testified that they did not have any concerns about Dana's delays and had not obtained any treatment or support for her. Likewise, both Violet and Eve exhibited delays that Mother and Father had not addressed. See In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at *4 (Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.) (holding, in context of subsections (D) and (E), that children's untreated medical conditions and developmental condition supported endangerment finding); see also In re E.P.C., 381 S.W.3d 670, 684 (Tex. App.—Fort Worth 2012, no pet.) (considering child's muscle weakness, lack of coordination, delayed milestones, and delayed development as evidence of endangerment); In re S.G.S., 130 S.W.3d 223, 238 (Tex. App.—Beaumont 2004, no pet.) (holding that children's rotten teeth and developmental delays were product of avoidable neglect caused by parents knowingly engaging in conduct that endangered their children's emotional or physical well-being).
Furthermore, drug use and its effect on a parent's life and ability to parent may establish an endangering course of conduct. In re C.A.J., 459 S.W.3d 175, 182 (Tex. App.—Texarkana 2015, no pet.). After completing their family service plan, while working toward having the children returned to their home, Mother tested positive for cocaine and marijuana, and Father tested positive for marijuana in November 2019. They continued to test positive for marijuana use over the next several months, and both failed to comply with court-ordered testing on at least one occasion. See In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that factfinder could infer that parent's failure to submit to court-ordered drug screening indicated that she was avoiding testing because she was using drugs).
We observe that the endangering conduct does not need to occur in the presence of the child. See Walker, 312 S.W.3d at 617. The fact that Mother and Father used drugs knowing that their parental rights were in jeopardy and knowing that the term of reunification required abstaining from using illegal drugs also supports the trial court's endangerment finding. See In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied) ("[A] parent's decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, supports a finding that the parent engaged in conduct that endangered the child's physical or emotional well-being."); Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (noting that mother's continued narcotics use after child's removal and in face of drug testing, jeopardized her relationship with her child).
The parents argue that this evidence is insufficient to establish that their conduct endangered their children. Father in particular focuses on the facts leading to DFPS removing the children from his home—the two incidents in 2018 when Dana was able to get out the home unsupervised. He likewise argues that drug use alone cannot support the trial court's endangerment finding, and Mother and Father both argue that there was no evidence that their drug use negatively affected the children. As set out above, however, the evidence of endangerment went beyond two isolated failures to adequately supervise Dana or drug use. Considering all of the evidence before the trial court as a the factfinder, the evidence outlined above was sufficient for the trial court to reasonably form a firm belief or conviction that both Mother and Father "engaged in conduct or knowingly placed the [children] with persons who engaged in conduct which endangers the physical or emotional well-being of the [children][.]" See TEX. FAM. CODE § 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at 266. Furthermore, considering the entire record, including the disputed evidence regarding the reasons that Dana was able to get out of the house and the nature of the parent's drug use, we cannot conclude that the evidence was factually insufficient. The conflicting evidence is not so significant that a factfinder could not reasonably have formed a firm belief or conviction that Mother and Father's acts or omissions endangered the children. See In re J.O.A., 283 S.W.3d at 345.
We overrule both Mother's and Father's complaint regarding the sufficiency of the evidence under subsections (E) and (O). Because only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest, we do not need to consider Mother's and Father's issues challenging the findings under subsection (P). See In re A.V., 113 S.W.3d at 362.
C. Best Interest
Mother and Father both challenge the legal and factual sufficiency of the evidence supporting the trial court's finding that termination of their parental rights was in the children's best interest.
There is a strong presumption that the best interest of a child is served by keeping the child with a 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 is also presumed to be in the child's best interest. TEX. FAM. CODE § 263.307(a).
We review the entire record to determine the child's best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative of both the predicate ground and best interest. Id. at 249; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Nonexclusive factors that the trier of fact in a termination case may also use in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations omitted); see In re E.C.R., 402 S.W.3d at 249 (stating that in reviewing best interest finding, "we consider, among other evidence, the Holley factors"); see also TEX. FAM. CODE § 263.307(b) (outlining nonexclusive factors to be considered in determining whether parent is willing and able to provide safe environment for child). These factors are not exhaustive; some listed factors may be inapplicable to some cases, and other factors not on the list may also be considered when appropriate. In re C.H., 89 S.W.3d at 27.
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
1. Dana's best interest
We turn first to the evidence supporting the trial court's finding that termination of Mother and Father's parental rights was in Dana's best interest. Dana's young age and special needs weigh in favor of the trial court's best-interest finding. See In re J.M.T., 519 S.W.3d at 270-71. There was evidence that she requires consistent, specialized care. Her foster mother testified that Dana received multiple forms of therapy and that coordinating her care required planning and organization. Tate and her supervisor both testified that they did not believe that Mother and Father were prepared to provide the care that Dana, in particular, needed. These conclusions were further supported by Mother's and Father's testimony that they did not have any concerns about Dana's developmental delays prior to her removal by DFPS, despite the fact that she remained nonverbal at age five. Father's testimony evinced his continued belief that Dana's autism was not a severe concern. See id.; see also TEX. FAM. CODE § 263.307(b)(12)(F) (providing court may consider whether family understands child's needs and capabilities).
Additionally, the evidence of endangerment of Dana outlined above and the evidence that the parents failed to fully comply with the requirements DFPS included in the family plan of service supports the trial court's best-interest finding. See In re E.C.R., 402 S.W.3d at 249; Holley, 544 S.W.2d at 371-72 (stating that courts may consider programs available to assist parents to promote child's best interest and any acts or omissions which may indicate that parent-child relationship is not proper). DFPS became involved with the family because of Mother and Father's failure to adequately supervise Dana. Even after being placed on a family-based service plan, they again failed to provide adequate supervision for their special-needs child.
The parents both point out that they completed the services ordered in the family service plan. However, the record supports a conclusion that they violated the terms of the plan by using illegal drugs and that they both failed to appear for court- ordered drug testing on at least one occasion. See also In re J.M.T., 519 S.W.3d at 269 (stating that parental drug abuse reflects poor judgment and is relevant in determining child's best interest). Testimony from Postel-Salinas and Dr. Maxwell indicated that Mother and Father were not honest during their evaluations and other discussion with DFPS, and, thus, DFPS was not able to provide the services that would have been most helpful. These same failures also demonstrated that the parents might not be able to care for their children adequately. Dr. Maxwell specifically testified that Mother and Father would need to interact honestly and make a full reporting of concerns to Dana's caregivers and that the "underreporting" could harm Dana.
Mother and Father both testified that they loved the children and wanted to care for them. They attended all their visitations with the children, and Tate testified that the visitations did not raise serious concerns for her. However, Tate also testified about several different interactions, particularly between the parents and Dana, indicating that they struggled to interact with her appropriately. Both Tate and Postel-Salinas testified that they did not think the parents were ready to provide the level of care that Dana needed due to her special needs. See id. (stating that evidence of best interest "cannot be read in isolation" but "must be read in the context of the entire record").
In contrast to the evidence that Mother and Father were not prepared to provide the care Dana needs, DFPS presented evidence that Dana was doing well in her foster placement. She had made significant progress in addressing her special needs and meeting developmental milestones since coming into DFPS's care. Dana had bonded with her foster mother, who was meeting all her needs and willing to adopt her. See id. (considering evidence of child's bond with foster mother in best-interest analysis); see also Holley, 544 S.W.2d at 371-72 (stating that courts may consider plans for child by individuals or agency seeking custody).
After viewing all the evidence in the light most favorable to the trial court's finding on Dana's best interest, we conclude that the evidence was sufficiently clear and convincing that the trial court could have formed a firm belief or conviction that termination of Mother's and Father's parental rights to Dana was in her best interest. See In re J.F.C., 96 S.W.3d at 266. We further conclude that, viewed in light of the entire record, any disputed evidence was not so significant that the trial court could not reasonably have formed a firm belief or conviction that termination was in the children's best interest. See In re H.R.M., 209 S.W.3d at 108.
We overrule both Mother's and Father's challenge to the sufficiency of the evidence supporting the trial court's best-interest findings as to Dana.
2. Violet's and Eve's best interests
Regarding the best interests of Violet and Eve, we are mindful that the evidence set out above regarding Dana is relevant to the best interests of Violet and Eve. As with Dana, Violet and Eve are too young to express their desires, but their age and vulnerability weigh in favor of the trial court's best-interest finding. See In re J.M.T., 519 S.W.3d at 270-71. The evidence of the parents' endangering conduct and of their failure to comply with their court-ordered family service plan by failing drug tests likewise constitute some evidence supporting the trial court's finding. See In re E.C.R., 402 S.W.3d at 249; Holley, 544 S.W.2d at 371-72. DFPS also presented some evidence, through the testimony of the twins' foster mother and the caseworker, that the twins were delayed and required therapy. The caseworker raised concerns regarding Mother's and Father's ability to provide the consistent care that the twins need.
However, much of this evidence was general or conclusory in nature, and the bulk of the best-interest evidence focused on Dana, not the twins. Considering the trial court's finding on Violet's and Eve's best interests in light of the entire record, we cannot say that the trial court could reasonably have formed a firm belief or conviction that termination was in the children's best interest. See In re H.R.M., 209 S.W.3d at 108. DFPS must support its allegations against the parents, including its allegation that termination of parental rights was in the children's best interests, by clear and convincing evidence; conjecture or a preponderance of evidence is not enough. See In re E.N.C., 384 S.W.3d 796, 808-10 (Tex. 2012); see also Toliver v. Tex. Dep't of Family & Protective Servs., 217 S.W.3d 85, 101 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (DFPS bears burden to rebut presumption that best interest of children was served by keeping custody with natural parent). This is a high evidentiary burden that DFPS must meet, especially considering the presumption that the children's best interest is served by maintaining the parent-child relationship. See In re E.C.A., No. 01-17-00623-CV, 2017 WL 6759198, at *13 (Tex. App.—Houston [1st Dist.] Dec. 28, 2017, no pet.) (mem. op.); In re R.W., No. 01-11-00023-CV, 2011 WL 2436541, at *12 (Tex. App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.). We conclude that DFPS has failed to carry this burden here.
In discussing the neglect that resulted in the children's removal from home, Tate focused almost exclusively on the parents' failure to supervise Dana. While their neglect of Dana is relevant in this best-interest analysis, see In re E.C.R., 402 S.W.3d at 249, we also observe that Dana's special needs complicated her care in way that does not necessarily apply to the twins. There was almost no evidence regarding either Mother's or Father's ability to parent the twins or the twins' condition at the time they came into care. The twins' foster mother testified that they were "delayed" when they arrived in her care and identified several areas of concern. However, nothing in the record specified the nature of the "delays." The foster mother noted that Violet, who was less than two years old when she was first removed from her home, did not speak when she first arrived in the foster home, but there was no evidence by which the trial court could have judged whether this was a serious concern for a child of Violet's age. She testified that the twins were also "very angry" and would yell, had emotional issues, and were sometimes aggressive or inappropriate. But, again, there was no evidence by which the trial court, or this Court, could determine the extent to which this behavior was atypical for children their age. See In re A.W., 444 S.W.3d 690, 693 (Tex. App.—Dallas 2014, pet. denied) (citing In re C.H., 89 S.W.3d at 27) (presence of scant evidence relevant to each factor will generally not support finding that termination of parental rights is in child's best interest).
The evidence of concerns regarding interactions during visits almost exclusively pertained to Dana. In fact, Tate expressly testified that the parents' interactions with the twins was appropriate. Nothing in the present record relates any concern that the parents failed or were unable to interact appropriately with Violet and Eve. Although the DFPS supervisor and others testified that they were concerned the parents would not be able to provide for Dana's special needs, there was no evidence that the same concerns applied to the twins, nor was there evidence that Mother and Father would be unable to provide adequate supervision and care for the twins, who did not have the same special needs as Dana.
Accordingly, we sustain both Mother's and Father's challenges to the factual sufficiency of the evidence supporting the trial court's best-interest findings as to Violet and Eve. See In re H.R.M., 209 S.W.3d at 108.
We thus reverse the trial court's final order of termination as to Violet and Eve, and remand for further proceedings consistent with this opinion.
Sole Managing Conservator
In his fifth issue, Father complains that the trial court erred in granting DFPS sole managing conservatorship over the children.
We consider this argument as it pertains to Violet and Eve only, because an order terminating the parent-child relationship divests a parent of legal rights and duties with respect to the child. See TEX. FAM. CODE § 161.206(b). Once we overrule a parent's challenge to an order terminating her parental rights, the trial court's appointment of DFPS as sole managing conservator may be considered a "consequence of the termination." In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Because we have overruled Father's challenge to the portion of the trial court's order terminating his parental rights to Dana, the order has divested him of his legal rights and duties related to her. See TEX. FAM. CODE § 161.206(b); In re A.S., 261 S.W.3d at 92. Therefore, Father does not have standing to challenge the portion of the order appointing DFPS as Dana's conservator. See In re A.S., 261 S.W.3d at 92; see also In re J.D.G., 570 S.W.3d 839, 856 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (affirming termination of father's parental rights and holding that father, who had been divested of his legal rights to child, could not challenge conservatorship determination).
We review the trial court's appointment of a nonparent as sole managing conservator for an abuse of discretion, and we will reverse that appointment only if we determine that it is arbitrary or unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Although we have concluded that the evidence was factually insufficient to support the trial court's finding that termination of Father's parental rights to Violet and Eve was in their best interest, we cannot say that the trial court abused its discretion in appointing DFPS as the twins' sole managing conservator. The evidence of Father's drug use and the evidence supporting the findings of endangerment are sufficient information upon which the trial court could exercise its discretion, and basing its decision on such evidence is not arbitrary or unreasonable. See In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—Houston [1st Dist.] 2017, no pet.).
We overrule Father's fifth issue.
Motion for Directed Verdict
In his sixth issue, Father contends that the trial court erred in denying his motion for directed verdict.
After the DFPS caseworker testified, DFPS rested, and Father moved for a "directed judgment," arguing that Tate's testimony failed to establish that returning the children to Father would significantly impair their physical or emotional health. The trial court denied the motion, and the proceedings were continued so that the parties could attempt to mediate. The parties continued the proceedings several months later, and DFPS requested to reopen its case "based on facts and circumstances that [had] occurred since the last time we were in trial." The trial court permitted DFPS to reopen its case and present additional evidence, and Father never reasserted his motion for directed verdict.
A motion for directed verdict is appropriate if there is no evidence of an essential element of a claim or defense. See City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); In re C.R.L., No. 04-16-00461-CV, 2016 WL 7383816, at *6 (Tex. App.—San Antonio Dec. 21, 2016, no pet.) (mem. op.). We use a legal sufficiency standard to review a trial court's denial of a motion for directed verdict. City of Keller, 168 S.W.3d at 823; In re C.R.L., 2016 WL 7383816, at *6. Because we have already concluded that the evidence is legally sufficient to support the trial court's order of termination as to Dana, we likewise conclude that the trial court did not err in denying Father's motion for directed verdict on that ground. See id. And even though we have concluded that the evidence was factually insufficient to support the trial court's order of termination as to Violet and Eve, for the reasons already expressed above, we cannot say that there was no evidence of an essential element of DFPS's case against Father, and, thus, there is no basis for overruling the trial court's denial of the directed verdict. See City of Keller, 168 S.W.3d at 823.
We overrule Father's sixth issue.
Conclusion
We reverse the final order of termination as to Violet and Eve and remand for further proceedings consistent with this opinion. We affirm the remainder of the trial court's final order of termination, including the termination of Mother and Father's parental rights to Dana.
Richard Hightower
Justice Panel consists of Justices Kelly, Landau, and Hightower.