Opinion
No. 06-12-00007-CV
05-08-2012
IN THE INTEREST OF N.B. AND C.M., CHILDREN
On Appeal from the 173rd Judicial District Court
Henderson County, Texas
Trial Court No. 2010A-0974
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Upon petition of the Texas Department of Family and Protective Services (Department) seeking to terminate Mother's parental rights to daughters N.B. and C.M., the trial court found, by clear and convincing evidence, that Mother: (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; (3) was the major cause of the failure of N.B. to be enrolled in school; and (4) failed to comply with the provisions of a court order that established the actions necessary for her to obtain the return of the children, leaving them in conservatorship of the Department for not less than nine months as a result of their removal for abuse or neglect. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (J), (O) (West Supp. 2011). After considering the best interests of the children, Mother's parental rights to N.B. and C.M. were terminated. On appeal, Mother challenged the legal and factual sufficiency of the trial court's Section 161.001 findings and the best interest finding. We affirm the trial court's order of termination in this case.
All references to the parent challenging termination are made simply as "Mother" to ensure privacy of the children.
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
I. FACTUAL BACKGROUND
A. The Initial Intake
This case began in October 2009 due to an allegation that Eddie McGee kicked pregnant Mother in the stomach, causing her to prematurely give birth to C.M. Frank Griffin, an investigator for the Department, testified that Mother "had been at the hospital prior to delivery of a child, had made some allegations that she had been the victim of domestic violence from a Mr. McGee, and was not going to have a place to go home to when she was discharged with the baby." Griffin interviewed Mother's then six-year-old daughter, N.B., and determined that Mother had been hit in the face by McGee and that N.B. had seen Mother and McGee physically fighting with each other twice. While claiming that she was slapped in the face, Mother denied being kicked in the stomach and denied any instance of past domestic violence. However, Mother told Griffin that she was afraid of McGee, "who was known in the area as 'Cracker Eddie' because of his drug use," and wanted protection from him. At trial, Mother confirmed, "I told them I was afraid of him, and I was afraid for my life, I told the investigator that." McGee tested positive for cocaine.
McGee is not the father of N.B.
B. Mother's History of Neglect
It was soon revealed that Mother had a history with Child Protective Services (CPS). In addition to N.B. and C.M., Mother had another daughter, J.B., who is now an adult. When J.B. was eleven, Mother and her then husband were living in a hotel and allowing then eleven-year-old J.B. to supervise N.B., who was only eight or nine months old at the time. Department conservatorship supervisor Brandi Harris testified that the manager of the hotel had concerns of drug use and family violence.
At age fourteen, J.B. became pregnant with her cousin's baby. Harris testified that when J.B. was fifteen, it was alleged that she was "not in school and being allowed to hang out with homeless individuals underneath a bridge near the motel." During the investigation, J.B. was "held against her will in an apartment . . . had been made to prostitute herself, and when she refused she was severely beaten." Mother could not be located to pick J.B. up from the hospital after being beaten. N.B., who was then four years old, "was not verbal, still had a pacifier, had not been potty-trained, was still wearing diapers, and the mother could not provide no [sic] explanations to the Department about those developmental delays."
When J.B. was seventeen, she was "in a relationship with an older individual, and there were allegations Mom was not supervising them appropriately, because they had been stealing from neighbors, and they were possibly going to jail." Although J.B. and N.B.'s father and Mother had moved into a house, "the residence itself was very dirty. It had large amounts of dirty dishes, feces on the floor. . . . the family indicated they had no money and they were in the process of being evicted from that home." J.B. had only been to school for a total of one and a half years during her lifetime and read at a first-grade level.
The father of J.B. and N.B. passed away in 2007. Thereafter, Mother began living in a motel with McGee.
C. McGee's Criminal History
Harris testified that an allegation that McGee spanked a child with a fishing pole was determined "reason to believe." McGee's criminal history included criminal trespass, assault causing bodily injury, criminal mischief, driving while license invalid, illegal dumping of greater than 1,000 pounds, DWI, possession of a controlled substance less than one gram, child endangerment, and organized criminal activity.
In 2007, Mother had called the police when she was living with McGee and urged them to remove him from the motel because she "was afraid because he would crush my skull in." Another domestic disturbance call was placed during the pendency of this case. After Mother appeared at a visitation with a black eye, she told Department caseworker Katelyn Lay that "she had had [McGee] arrested, and he would be gone for a long time."
D. The Initial Safety Plan
On October 9, 2009, an initial safety plan signed by Mother requiring her to keep McGee from N.B. and C.M. led to Mother moving into her father and stepmother's home. Lucia Smith, Family Based Safety Services (FBSS) caseworker, met with Mother at the home and testified that Mother indicated she was scared of McGee and did not want to be around him. Smith believed Mother was a victim of domestic violence because "she explained what went on during the day of [C.M.'s] delivery or birth" and "discussed where she was kicked in the stomach by Eddie McGee on the date she went into labor with [C.M.]." Mother also discussed a "[f]amily history dealing with Eddie McGee, him having anger issues," and indicated he would benefit from a batterer's intervention program, and she could benefit from the HEART program. Mother was given an application for Medicaid or CHIP for N.B., but these benefits were never received.
Smith visited the "Pine Drive" home where Mother had lived with McGee and N.B. She testified that the "roof leaked, it needed a lot of repairs to it." There was no electricity, and Mother claimed that she was being evicted. Griffin travelled to the Pine Drive home after receiving word that Mother was there with McGee. He found McGee in the unkempt home with Mother, who said she was "just getting some of her stuff."
Later, it became clear that Mother wanted to continue her relationship with McGee. Griffin testified, "She, in fact, stated at one time she needed to [continue the relationship] because he was the father of the new baby, and she felt that he should even help name the child." On November 9, 2009, Mother and McGee reconciled, and the family moved into the Pine Drive home on December 14 after making several repairs.
We also note that the Texas Education Code provides that "a child who is at least six years of age . . . shall attend school." TEX. EDUC. CODE ANN. § 25.085(b) (West Supp. 2011). "[M]oving frequently does not exempt a parent from the requirement of enrolling a child in school or otherwise providing for [her] education." Yonko v. Dep't of Family & Protective Servs., 196 S.W.3d 236, 242 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Six-year-old N.B. had never been enrolled in school. The law required Mother to enroll her in September, but this was not done as of the date of the intake on October 9, 2009. Smith testified N.B. discussed that she enjoyed her first day of school, and liked the library even though she could not read. In November, N.B. began missing too many days of school. Mother claims "that she didn't have enough gas, transportation, between sending [N.B.] to school and taking Mr. McGee to work. " McGee was working two days a week at a job and was making repairs to the Pine Drive home with the remainder of his time. Mother confirmed N.B. was not attending school because she "was having problems with Mr. McGee." While acknowledging that it was important for N.B. to stay in school, Mother testified, "But, at the same time, I was trying to avoid abuse." In December, N.B. was dropped from school due to truancy.
In late January 2010, N.B. was again enrolled in school, but there was another incidence of truancy in February, and N.B. was withdrawn in March because Mother and McGee were moving out of town. Smith testified the family did not move until May. After receiving word about the move from Mother's father, Smith contacted Mother and McGee to discuss N.B.'s schooling. McGee explained that N.B. had not yet been enrolled because they did not have N.B.'s social security card. Smith advised McGee to "enroll [N.B.] in school because the Chandler school was going to transfer all of her records."
F. Allegations of Neglect and Abuse Leads to Placement of Children in Foster Home
After the family move, the case was transferred to CPS worker Jennifer Harvey in June 2010. On Harvey's first attempt to meet with the family, an annoyed and upset McGee "answered the door, said they were up all night and the police just left the home. And they were too tired to talk to me that day, and they wouldn't let me in the home that day." Mother did not come to the door. Harvey testified she had concerns because "[t]he neighbors were telling us that the family was fighting in the yard." She recalled, "[W]hen I was walking away from the house that day they wouldn't let me in, neighbors approached me as I was leaving. They were concerned for the children. They were telling me about the parties all night, the constant fighting and the yelling."
Neighbor LaDonna Rose Posey testified at trial, stating that she witnessed domestic violence at Mother's home "[a]ll the time." Posey had "seen them both fight. I have seen [N.B.] jump on [McGee's] back trying to keep them from fighting." The fights "probably started in the house and continued outside in the front yard." When asked, "Did you ever see [McGee] strike [Mother]?" Posey replied, "I have seen it all." Posey explained there was yelling and screaming "[a]ll the time," and the police were called to the house "sometimes."
Posey also testified, "[N.B.] started coming to our house. And I had looked down in her hair and noticed that she had bugs, severely." Posey "had to send her home. I sent her home with a bottle of medicine and a comb for her mother to do the hair. And her mother got mad because I sent medicine." She observed that the lice "were so bad you could see them crawling everywhere." Posey stated that N.B. "came to her house asking for money. They walked the neighborhood knocking, asking for money. "
Harvey returned and was allowed in the home. She noticed C.M. "was never held. When I went on my home visits to the home, she was always in the play pen, mostly unclothed, in just a diaper." Harvey noticed that ten or eleven-month-old C.M. was not able to stand "[s]he didn't have much muscle tone in her legs." Harvey did not believe Mother was bonded to C.M because "[s]he didn't hold [C.M.], she wouldn't call her by her name. She referred to her as 'the kid.'" Mother would make statements that "she has to take money away from 'my [N.B.]' to take care of 'his kid.'"
Even in June 2010, Harvey noticed that N.B. still had hair lice. Smith testified N.B. was sent home from school for this reason back in October 8, 2009. On February 10, 2010, Smith again noticed that N.B. had hair lice, and questioned Mother, who "became angry and stated, since she was going to school, that's how she got lice."
Harvey explained that N.B. was taken for screening "because she wouldn't talk to us." Mother was accompanied by FBSS worker Kim Bragg during the screening. By this point, McGee had been arrested. Bragg testified Mother "said she was isolated. Where she lived there was nothing to do and very little support for her there." "[Mother] said she was not on WIC, and she didn't have Medicaid . . . she said she was feeling very stressed, and that she felt very overwhelmed from taking care of [McGee], her two kids, her sister, and her family." She had been giving C.M. cow's milk instead of baby formula due to the lapse in WIC benefits.
Bragg next testified that when waiting for N.B., she
told [Mother] that the baby had been laying there and was just beginning to wake up. And I asked her if she thought maybe she might need to check the baby's diaper. And she said, Well, I guess so. And she slowly moved over to the diaper bag . . . and instead of picking the baby up and laying her on the floor, or on a pad,The rash was "all over the front of her private area."
she changed her diaper with her still in the carrier.
And I looked over and noticed she had a diaper rash. And I asked if she had a cream to put on the diaper rash. And she said she was given some when she came home from the hospital, but it was at home.
CPS worker Cassandra Daniels interviewed Mother in July. Mother explained that "she had not used drugs, but she was riding in the car with her sister who was using methamphetamine." A drug test was administered. When questioned about McGee's past history concerning past potential abuse to a child, Mother stated, "I have never seen him do it, I can't believe it happened." To Harvey, the children "appeared to be isolated from extended family and friends."
Bragg visited the home on July 19, 2010. She noted that C.M. was "in a Pack N' Play, and naked laying on a blanket," and "[t]here was a baby bottle in the Pack N' Play that had clabbered milk in it" which was "spoiled and lumpy." Bragg asked Mother if she had cream to treat C.M.'s diaper rash. Mother replied that she had some from the hospital, but it was packed away in one of the many packed boxes.
Bragg noticed Mother "had a bad bruise on her left arm. It was like a reddish, purplish color, and went almost all the way around her arm. And there was one spot where it looked like it was a fingerprint or a thumbprint, where somebody had grabbed her arm. " Mother claimed she had hurt her arm while packing boxes. Mother revealed that she had been relying on her sister for transportation and "had been there by herself for several weeks." She admitted that she was thinking about moving back in with McGee if he was released from jail and obtained work. Mother also told Bragg her fifteen-year-old nephew "who has been in trouble was trying to move into the home and she had to kick him out." Bragg left the home to retrieve diapers and milk to give to Mother. Upon her return, Mother stated N.B. and C.M. were going to be picked up by their step-grandmother.
The next day, Bragg discovered that Mother "told [the step-grandmother] to take the children and to keep—to do whatever she had to do to keep them safe." Bragg returned to Mother's house to find the nephew, who had been implicated in a "break-in," asleep in the house.
Mother's drug test results were revealed; she tested positive for methamphetamine. Due to "continued reports of domestic violence and the drug-test results," Mother agreed to place the children with the step-grandmother on July 20, 2010, and was given visitation rights. Daniels believed the children needed to be removed because there
Mother previously tested positive for opiates, but there is a suggestion that this was due to prescription medication.
were continued concerns of drug use, concerns of domestic violence. There were concerns of head lice for [N.B.], which continued throughout the case.Harvey testified, "They had a drug history that, in our opinion, they were continuing to use drugs, which are needs they are placing over their children." She believed the children were in imminent danger at the time of removal and had been neglected "[b]ecause [N.B.] not being in school is certainly neglect. [N.B.] having continuing lice problems is neglect," and "[C.M.] not being able to stand indicates neglect, not on target." Also, despite Posey's testimony and observations of abuse, Mother told Harvey that McGee had only slapped her one time.
The child truancy was an issue, Mom not accessing community resources such as Medicaid and WIC. And we felt that the children were in danger due to the continued domestic violence.
On July 21, 2010, Bragg received text messages from Mother stating, "I have been in here nine days without food, smokes, drink electricity. Eddie left," and "[m]y baby is gone, my life is over, alone in hell." Concerned, Bragg called 9-1-1. She noted that Mother continued to relate that she wanted to be with McGee. N.B. and C.M. were placed in foster care on July 26, 2010, when their step-grandmother decided she could not care for them.
Foster mother Robin Matthews Root testified that C.M. did not sit up well, "didn't like to be held," "didn't comfort easily," and N.B. "was referred for oral surgery for severe decay," where she had "six molars pulled . . . and four cavities filled." Root testified N.B. was "very reserved. I would say withdrawn. She was not willing to really communicate much in the first few days that we had her." Although N.B. was eight years old at the time, she could not read.
G. Compliance with the Department and Court Orders
The Department's plan required Mother to attend HEART classes, complete a drug assessment, complete random drug tests, attend parenting classes, attend counseling, and maintain stable housing, among other things. Mother failed to attend any HEART classes, did not complete her drug assessment, and did not attend counseling as scheduled. McGee cancelled services such as homemaking and Family Focus. Generally, transportation and lack of money were offered as excuses for noncompliance. Yet, Smith testified that she had called McGee in January 2010 to remind him that she had arranged for someone to pick them up so they could complete the drug assessment. McGee became "very upset." Smith "requested to talk to [Mother], but when she found out I wanted to speak to her, she started screaming loudly in the background." McGee said Mother was "ready to have a nervous breakdown." Harvey testified that Mother did not complete any services when she was involved in June and July 2010.
After placement of the children in foster care, Department caseworker Lay spoke with Mother and McGee on August 26, 2010, and instructed them to attend counseling and parenting classes. Two weeks later, she discovered that they had not begun their services and that Mother was living in a motel along the highway. Mother missed the September scheduled visitation due to lack of transportation. Bus passes were refused because Mother claimed she already had them. Mother attended visitation on October 1, 2010. Lay testified the visits were "up and down." During some visits, Mother
was very appropriate, interactive, and other ones she would basically just sit there. [N.B.] would say, Watch, [C.M.] can pull up, look what she can do. She didn't seem to be enthused by that.Mother's black eye was observed by Lay on November 15, 2010. When questioned, Lay testified, "She didn't tell me exactly how she got it, but she told me that she had had [McGee] arrested, and he would be gone for a long time." Mother failed to attend December visitation or submit to a court-ordered hair follicle drug test. According to Harvey, Mother made statements about killing herself in front of N.B. and said "she would die without [McGee], which was a concern for us."
One of the visitations she showed up with a black eye and would sit on the couch. I think she had [C.M.] in her lap, but wasn't paying the girls any attention. . . . And I could tell [N.B.] was getting upset by it, because she would look down, and she looked sad. She kept trying to get her mom's attention and it wasn't working.
In January of 2011, Mother suffered "a bacterial infection that destroyed one of her heart valves" and was hospitalized for her critical condition until March 24, 2011. After her release from the hospital, Mother moved into a hotel with her sister, but admitted "she didn't like living there, and it wasn't a good place for her girls. " Mother had no income, and had not returned to the doctor or filled her prescription medication. She admitted that she missed an April 7 visitation because she "was having problems with [her] legs," and skipped visits in May.
Department caseworker Kiffany Gatson testified Mother had applied for Medicaid and Medicare for her needs by July 14, 2011, and had finished parenting classes. However, Mother had not notified the Department of address and telephone number changes, had not maintained stable housing, did not fully participate in drug testing, had no money, was not legally employed, and only went to a total of four counseling sessions. Gatson also confirmed that Mother did not attend all scheduled visitation and that "[N.B.] was always doing things to get her mother's attention . . . And [Mother] would give a lot of her attention to [C.M.]. And [N.B.] would just kind of say, Mom, here, look at this, or always try to do things to get her mom's attention. . . . [C.M.] and [N.B.] just kind of did their own thing."
Mother testified she had been to six counseling sessions.
On a June 9, 2011, visitation, Mother came to visitation with another black eye. Gatson testified, "She stated she fell and hit her face on a rock." She attended HEART class on July 26, 2011. When asked whether her living conditions, which included several moves, was a stable environment, Mother responded, "No ma'am. Staying where you get abused is not a stable environment, either. "
H. Trial Court Disposition
In addition to the testimony above, the trial court listened to recommendations that removal and termination were in the best interests of the children from Harvey and Gatson, and heard testimony from Court-Appointed Special Advocate Mary Hester. Hester testified that she believed Mother had poor parental abilities, could not provide a stable home, did not have a plan for the children for their return and that the children could be subject to emotional danger and possible physical abuse. It was Hester's "concern that [N.B.] would not be sent to school properly, and would fall back into the system like she was before."
Root and Hester also testified that the children were bonded to the foster family. Root was a stay-at-home mother and her husband was a professor at Tyler Junior College. They have an adult son, adult daughter, and a seventeen-year-old daughter. Root believed that C.M. was developmentally on track. She testified that N.B. was attending counseling and that she was making good grades in school.
Gatson explained that Mother was currently living with her biological mother and sleeping on the couch. Mother's plan for the children was to place a baby bed for C.M. in the living room next to the couch and have N.B. sleep in a room with her niece. Gatson did not believe Mother could consistently and adequately provide for the children financially. She testified the children's placement in the foster home was in their best interests. Gatson believed that the children had made considerable progress socially and educationally. Root testified that she wanted to adopt the children.
After hearing the evidence, the trial court found it supported the statutory grounds for termination and determined that termination was in the children's best interests.
II. SUFFICIENT EVIDENCE ESTABLISHED STATUTORY GROUNDS (D) AND (E)
A. Standard of Review
In our legal sufficiency review of Mother's termination, we examine the entire record in the light most favorable to the trial court's finding to determine whether a reasonable fact-finder could have formed a firm belief or conviction "about the truth of the matter on which the State bears the burden of proof." In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). While undisputed facts cannot be disregarded, we are to disregard all evidence a reasonable fact-finder could have disbelieved or found incredible. Id. at 266.
In our factual sufficiency review, we consider only that evidence the fact-finder could reasonably have found to be clear and convincing and determine whether "the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the . . . allegations." Id. Clear and convincing evidence is that "degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE ANN. § 101.007 (West 2008). This standard of proof necessarily affects our review of the evidence.
In our analysis, we give due deference to the determinations of the fact-finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We are not to "second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible." In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003). Conversely, we are not to be "so rigorous that the only fact-findings that could withstand review are those established beyond a reasonable doubt." H.R.M., 209 S.W.3d at 108.
"Along with a best interest finding, a finding of only one ground alleged under Section 161.001(1) is sufficient to support a judgment of termination." In re D.W., 353 S.W.3d 188, 194 (Tex. App.—Texarkana 2011, pet. denied) (citing In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re K.G., 350 S.W.3d 338 (Tex. App.—Fort Worth 2011, pet. denied)).
B. Ground 161.001(1)(D)
A child is endangered when the environment creates a potential for danger that the parent is aware of, but disregards. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). "While 'endanger' means 'more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Rather, 'endanger' means to expose to loss or injury; to jeopardize.'" In re S.K.A., 236 S.W.3d 875, 900-01 (Tex. App.—Texarkana 2007),pet. denied, 260 S.W.3d 463 (Tex. 2008) (quoting Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)); In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Conduct that "subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." S.K.A., 236 S.W.3d at 901.
Subsection (D) requires a showing that the environment in which the child is placed poses a danger to the child's physical or emotional health, and it permits termination based on a single act or omission by the parent. In re L.C., 145 S.W.3d 790, 795-96 (Tex. App.—Texarkana 2004, no pet.); see Jordan, 325 S.W.3d at 721. "Inappropriate, abusive, or unlawful conduct by persons who live in the child's home or with whom the child is compelled to associate on a regular basis in his home is a part of the 'conditions or surroundings' of the child's home under section D." Jordan, 325 S.W.3d at 721.
An example would include Mother living with N.B. in a dirty home with feces on the floor.
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Although the focus of subsection (D) is on the child's living environment and not on the parent's conduct, the parental conduct, both before and after the birth of the child, may produce an endangering environment. Id. "For example, abusive or violent conduct by a parent or other resident of the child's home, as well as illegal drug use and drug-related criminal activity, support a conclusion that the children's surroundings endanger their physical or emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); In re C.L.C., 119 S.W.3d 382, 392-93 (Tex. App.—Tyler 2003, no pet.) ("We have previously concluded that it is illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of persons who live in the home of a child, or with whom a child is compelled to associate on a regular basis in his home, are not inherently a part of the 'conditions and surroundings' of that place or home."); In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). Here, there was evidence that N.B. and C.M. were living in a home with known drug user McGee, who was abusing Mother and had a criminal history which included child endangerment. N.B. was seen jumping on McGee's back to prevent the fighting. Mother tested positive for methamphetamine, and neighbors complained of the "parties all night, the constant fighting and the yelling."
Even viewing the evidence in a light most favorable to Mother, we find the evidence legally and factually sufficient to support the trial court's finding that clear and convincing proof supported termination under statutory ground (D).
C. Ground 161.001(1)(E)
The Department alleged that Mother engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. See TEX. FAM. CODE ANN. § 161.001(1)(E). Under subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the children's emotional or physical well-being was the direct result of Mother's conduct, including acts, omissions, or failures to act. J.T.G., 121 S.W.3d at 125; see TEX. FAM. CODE ANN. § 161.001(1)(E). It is not necessary, however, that the parent's conduct be directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533. Additionally, termination under subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. J.T.G., 121 S.W.3d at 125.
Domestic violence may be considered evidence of endangerment. In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010, pet. denied). "If a parent abuses or neglects the other parent or other children, that conduct can be used to support a finding of endangerment even against a child who was not yet born at the time of the conduct." Id. (citing In re W.J.H., 111 S.W.3d 707, 716 (Tex. App.—Fort Worth 2003, pet. denied)). Again, there was evidence of physical abuses suffered by the mother, which were witnessed by N.B., as well as testimony from Smith that C.M. was born prematurely as a result of the assault on Mother by McGee. Testimony from neighbors and caseworkers suggested a pattern of abuse endured by Mother, who, nonetheless, still wished to live and remain with McGee.
A pattern of physical neglect of a child can also establish a course of conduct under subsection (E). See Clawson v. Tex. Dep't of Protective & Regulatory Servs., No. 03-05-00116-CV, 2006 WL 2032270, at **5-6 (Tex. App.—Austin July 21, 2006, no pet.) (mem. op.). Harris testified that Mother was allowing J.B. to supervise N.B. when she was eleven months old. When N.B. was four years old, she was not verbal, was still using a pacifier, and had not been potty trained. There is evidence that N.B. suffered from lice from October 2009 until June 2010. She did not know how to read and was not regularly attending school. Caseworkers testified C.M. was not being given baby formula because Mother had allowed WIC benefits to lapse. C.M. suffered from a diaper rash, which was not being properly treated, as well as other developmental delays, including not being able to sit up or stand, and N.B. had severe tooth decay requiring oral surgery. There was testimony that Mother was not attending to C.M.'s cries for attention and was not engaging with N.B. during visitation.
Next, "[e]vidence of illegal drug use or alcohol abuse by a parent is often cited as conduct which will support an affirmative finding that the parent has engaged in a course of conduct which has the effect of endangering the child." J.O.A., 283 S.W.3d at 345 n.4 (quoting In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.)); S.K.A., 236 S.W.3d at 901 ("Continued narcotic use after the children's removal is conduct that jeopardizes parental rights and may be considered as establishing an endangering course of conduct.") (citing Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, no pet.)). In Mother's CPS history with J.B., it was noted that the hotel manager suspected drug use. She entered into a relationship with "Cracker Eddie" McGee, who was a known drug user. Mother refused court-ordered drug testing, did not complete drug assessments and drug tests on time, and tested positive for methamphetamine. There was evidence that Mother stated the drug test was positive due to her sister's usage of methamphetamine, but the trial court was free to determine this reason incredible.
Even viewing the evidence in a light most favorable to Mother, we find the evidence legally and factually sufficient to support the trial court's finding that clear and convincing proof supported termination under statutory ground (E).
III. Termination of Parental Rights Was in the Best Interests of the Children
We next address whether clear and convincing evidence established that termination was in N.B.'s and C.M.'s best interests. TEX. FAM. CODE ANN. § 161.001; J.O.A., 283 S.W.3d at 344. There is a strong presumption that the best interests of the children are served by keeping them with a parent. TEX. FAM. CODE ANN. § 153.131(b) (West 2008). It is further presumed that prompt and permanent placement of the children in a safe environment is in their best interests. TEX. FAM.CODE ANN. § 263.307(a) (West 2008). While it is imperative for courts "to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the children not be sacrificed merely to preserve that right." In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
In deciding whether termination would be in the best interests of N.B and C.M., we will address this nonexclusive list of factors: (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to the children now and in the future; (4) the parental abilities of Mother; (5) the programs available to assist Mother to promote the best interests of the children; (6) the plans for the children by Mother or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of Mother which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of Mother. In re R.N., 356 S.W.3d 568, 572 n.1 (Tex. App.—Texarkana 2011, no pet.) (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)).
Here, although two-year-old C.M. was too young to express her opinion, eight-year-old N.B. testified she wanted to be returned to her mother. Being of such young age, the children have considerable emotional and physical needs that must be met now and in the future. Mother has no income, no home of her own, a history of neglect of her children, and a history of domestic abuse with the desire to return to her abuser. She also tested positive for methamphetamine, and Harris testified Mother places her needs over her children's. As demonstrated in the past with J.B., the trial court could have determined Mother's parental abilities to be poor, and the emotional and physical danger to the children great. Although there were programs available to assist Mother, evidence demonstrated that Mother allowed these benefits to lapse. Mother hoped to move the children into her biological mother's home. The Roots sought to adopt both children, although it was unsure whether the Department would approve of the placement due to an allegation against their son. In addition to evidence of Mother suffering from abuse and neglecting the children, Mother discussed suicide and appeared to be in emotional danger herself. Her actions during the pendency of the suit, failure to cooperate with service plans, submit to court-ordered drug testing, and attend visitations was evidence indicating the parent-child relationship was not a proper one. Although caseworkers offered transportation, attempted to give her bus passes, and gave her applications for financial assistance, Mother's excuses for lack of cooperation were lack of transportation or money. The court could have found that these excuses were not likely to disappear in the future, and could have feared that the fate of the children, if, allowed to be returned to Mother, would be that of J.B.'s.
The Department is not required to prove all nine Holley factors "as a condition precedent" to termination. C.H., 89 S.W.3d at 27. Undisputed evidence of just one factor may be sufficient to support a finding that termination is in the best interests of the children. Id. Evidence that establishes one or more statutory grounds for termination also can be probative evidence that termination is in the best interests of the children. Id. at 28. After addressing the statutory grounds for termination and the listed Holley factors, we find the evidence legally and factually sufficient for the court to find that termination was in the children's best interests.
IV. CONCLUSION
We affirm the trial court's termination of Mother's parental rights to N.B. and C.M.
Jack Carter
Justice