Summary
holding the evidence was sufficient to establish a subsection (D) predicate ground for termination where the evidence showed that an intoxicated mother drove with her children in her vehicle onto railroad tracks where the vehicle became disabled
Summary of this case from In re A.R.G.Opinion
No. 10-17-00054-CV
09-27-2017
IN THE INTEREST OF R.H. AND D.H., CHILDREN
From the County Court at Law No 1 Johnson County, Texas
Trial Court No. CC-D20150191
MEMORANDUM OPINION
The trial court terminated the parental rights of A.H., the mother of R.H. and D.H., after a bench trial. The trial court found that A.H. had violated Family Code subsections 161.001(b)(1)(D) and (E) and that termination was in the children's best interest. A.H. appeals, asserting five issues. We will affirm.
The parental rights of V.H., the father of R.H., and D.W., the father of D.H., were also terminated, but neither has appealed.
Sufficiency of the Evidence
A.H.'s first four issues challenge the sufficiency of the evidence to support the termination of her parental rights.
In a proceeding to terminate the parent-child relationship brought under section 161.001, the Department of Family and Protective Services must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (b)(1) of section 161.001, termed a predicate violation; and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(1), (2) (West Supp. 2016); Swate v. Swate, 72 S.W.3d 763, 766 (Tex. App.—Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. "Clear and convincing evidence" is defined as "that measure or degree of proof which 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." In re G.M., 596 S.W.2d 846, 847 (Tex. 1980).
In her first two issues, A.H. contends that the evidence is legally and factually insufficient to support the trial court's findings that she violated Family Code subsections 161.001(b)(1)(D) and (E), the predicate violations that she was found to have committed. In her third issue, A.H. asserts that the trial court erred in using her incarceration as the basis for its decision to terminate her parental rights. In her fourth issue, A.H. argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of R.H. and D.H.
Both legal and factual sufficiency reviews in termination cases must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the petitioner bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 264-68 (Tex. 2002) (discussing legal sufficiency review); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (discussing factual sufficiency review).
In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.J.F.C., 96 S.W.3d at 266.
In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id.
[T]he inquiry must be "whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." A court of appeals should consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. 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. (footnotes and citations omitted); see C.H., 89 S.W.2d at 25.
We give due deference to the factfinder's findings and must not substitute our judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole judge "of the credibility of the witnesses and the weight to give their testimony." Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). The factfinder may choose to believe one witness and disbelieve another. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
Evidence Presented at Trial
The undisputed testimony establishes that A.H. and her children came to the attention of the Department after police were called to investigate a report of a vehicle on the train tracks. Sergeant Dillon Mansell of the Alvarado Police Department testified that A.H.'s SUV was sitting on the tracks about forty yards from the roadway. The two front tires were flat, and the SUV appeared to have been driven onto the tracks. The car was still in gear when officers arrived, and the reverse lights were activated. A.H. had removed R.H. and D.H. from her SUV, and they were in the vehicle of a passerby who had stopped to assist. Mansell testified that when he spoke with A.H., "she seemed to be distraught, had a slight smell of alcohol emitting from her body, or from her breath. She didn't - - basically she didn't know where she was at." A subsequent Breathalyzer test revealed that A.H. had a blood alcohol concentration of 0.17, more than twice the legal limit of 0.08. A.H. was arrested at the scene for driving while intoxicated, and the children were taken into custody by the Department and placed with a foster family. At the time of the incident, R.H. was six years old, and D.H. was four years old. A.H. subsequently pleaded guilty to two counts of driving while intoxicated with a child passenger, and she was sentenced to five years' probation.
A.H. disagreed with Mansell on only one issue—she testified that she flagged down the passerby.
Jillian Simpson, a caseworker with the Department who was assigned to the case, testified that a family service plan was created for A.H. A.H. completed almost all of the requirements under her plan, including attending parenting classes and twelve sessions of individual counseling, as well as obtaining employment and housing. A.H. was also able to attend supervised visits with the children. However, her progress stalled when she was arrested after testing positive for cocaine use, and her probation was revoked. A.H. entered a plea of true to violating the conditions of her community supervision order, including committing no further offenses, abstaining from the use of alcohol or the illegal use of controlled substances, and installing an Ignition Interlock System on any automobile she might use. After revocation, A.H. was sentenced to fifteen months' confinement in a state-jail facility. She was still incarcerated when the termination trial was held.
Simpson testified that during the course of the Department's involvement in this case, A.H. was incarcerated on more than one occasion. When A.H. was released from custody after receiving the probated sentence, she left Johnson County to reside with V.H. in San Antonio. Simpson stated that A.H. was arrested in San Antonio, and V.H. no longer wanted her to stay with him. Once A.H. was released from that incarceration, she moved to Dallas County, where she obtained employment and housing and began working on the requirements of the service plan. Simpson testified that A.H. was then arrested after testing positive for cocaine, which led to the revocation of her probation.
Simpson also testified that A.H. admitted to having a drug habit approximately one year before the children were removed from her custody. As previously noted, A.H. tested positive for cocaine usage after a hair follicle test was performed approximately one year after the children were removed from her custody. Although A.H. asserted that the test was incorrect because the technician had used "old" hair, a subsequent test also tested positive for cocaine usage. A.H. had an ongoing substance abuse problem that continued after the children were removed from her custody and that was only curtailed by her incarceration.
Simpson additionally testified that A.H. had been diagnosed as bipolar but did not regularly take her prescribed medications. Simpson noted:
[A.H.] has been - - reported that she's been diagnosed with bipolar. There are some concerns of her mental health issues that have not been addressed, along with the continued positive drug results. [A.H.] can go from happy to one minute to sad the next minute. I could be her best friend one minute or I could be her worst enemy the next. The pattern of her behavior continues to go up and down, which causes serious concern.
An example I can give is at the visitation: [A.H.] would get upset when [D.H.] cannot respond to her question or to indicate what he wants because he is - - he has minimal verbal skills. So she would take that and become very upset with not knowing how to handle his behavior or not knowing how to respond appropriately. Working with [D.H.], it's very
hard to understand what he's saying but you have to learn how to be patient, learn how to be able to gain an understanding of what he's trying to say or what he wants. [A.H.] would deny that [D.H.] has an issue. She would not show any demonstration that she's willing to - - willing to accept that [D.H.] had developmental delays, that way she can work on trying to get the help that he needs to become a productive parent to meet his need.
Noreen DeBusk, the Court Appointed Special Advocate for the children, also testified regarding A.H.'s mental condition:
[A.H.] has mental issues that are not being met. She's very erratic with highs and lows which previously has been stated, but she goes from hysteria and crying to excited and praising the Lord.
[A.H.]'s very inappropriate when engaging in conversations with anyone involved in the case. She tells everyone she loves them and says they are her brothers and sisters. In past phone visitation she used inappropriate pet names when speaking with the foster dad. . . .
. . . .
[A.H.]'s boisterous behavior created a scene at the children's dance recital which resulted in the children being embarrassed and upset. [A.H.] also created a scene during mediation by yelling at the attorneys, mediator, and the foster parents.
Simpson further testified that R.H. reported "being scared of what to say around her mom in fear of how her mom would react." Simpson noted that A.H. had never been physically aggressive with her, but she had been verbally aggressive. There was also nothing to indicate that A.H. had been physically abusive to her children.
A.H. testified that she had been prescribed Risperdal and Flexeril for her bipolar condition. But, she testified, she did not believe the medication helped her and she did not take it because "it makes me sleep and I have to work, I have things that I have to do. It's too strong for me."
As noted, D.H. has severe developmental problems that will require specialized treatment and care for the remainder of his life. Simpson testified that the foster parents have made numerous appointments in an attempt to diagnose D.H.'s problems and to formulate a treatment plan. D.H. was taken for genetic testing and testing for fetal alcohol syndrome. DeBusk testified that D.H. was diagnosed with microdeletion syndrome and "that is what causes part of the developmental issues that he has." She noted that the condition is rare and that the doctor was unable to fully predict what issues D.H. would face through the years. DeBusk stated that the doctor explained that D.H. was "going to need constant services . . . for speech . . . for occupational therapy, and we don't even know what else."
DeBusk also testified that D.H. is unable to speak and/or communicate effectively. DeBusk noted, "He's five years old and does not know a language." She further testified that, "He does say a few words. And even though I see him often, I cannot always understand what words he's trying to say. You know, he'll point and I'll know that means whatever. But he - - it's very unintelligible, a lot of what he says." DeBusk also testified that D.H. has a heart murmur and is deaf in one ear and that A.H. was unaware of either condition.
Simpson noted that, until the foster parents made the effort, D.H. had never been evaluated or treated for the problems he exhibited. A.H. testified that she had taken D.H. to a special education school but that they sent D.H. to a regular Head Start school. She testified, "They gave my baby resources and speech. So he can get educational help."
Simpson testified that A.H. did not attend the meeting with the medical professionals when D.H.'s problems were discussed but that she was informed of it. Simpson also testified that when A.H. was shown the information regarding D.H.'s diagnosis, A.H. was upset only because the report indicated that one or more of D.H.'s parents was intellectually disabled. The trial court requested that A.H. describe D.H.'s condition, which led to the following exchange:
THE WITNESS: Okay. [D.H.] is a good child and he's different. What is going on with him, it is hereditary but [D.H.] is so smart. He got so many extras with the goods to where you can't even see the bad. He smile all the time. He like dancing. If he was your child you would know how to deal with him. But when another one comes along, they're going to pick up everything wrong with him, because so much wrong, but you would love him. [D.H.] speaks, he talks, he knows Spanish. He doesn't know sign language and all of that but I would never try to let my baby think - - I'd be like, "Come on baby." "Me five, mommy. I'm five." And I'm like, "Okay, dude". You know, and I'm like - -
THE COURT: Does he - - does he speak English?
THE WITNESS: Yes, sir.
THE COURT: He speaks both English and Spanish?
THE WITNESS: He knows his numbers up to 15 in Spanish, yes, sir.
Statutory Predicate Grounds
As noted, A.H. contends in her first and second issues that the evidence is legally and factually insufficient to establish that she violated Family Code subsections 161.001(b)(1)(D) and (E). Termination under subsection 161.001(b)(1)(D) requires clear and convincing evidence that the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Termination under subsection 161.001(b)(1)(E) requires 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." Id. § 161.001(b)(1)(E).
To endanger means to expose to loss or injury, to jeopardize. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). 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." Boyd, 727 S.W.2d at 533. Further, the danger to a child may be inferred from parental misconduct. Id.
When termination of parental rights is based on section D, the endangerment analysis focuses on the evidence of the child's physical environment, although the environment produced by the conduct of the parents bears on the determination of whether the child's surroundings threaten his well-being. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Section D permits termination if the
petitioner proves parental conduct caused a child to be placed or remain in an endangering environment. In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).Jordan, 325 S.W.3d at 721.
It is not necessary that the parent's conduct be directed towards the child or that the child actually be injured; rather, a child is endangered when the environment creates a potential for danger which the parent is aware of but disregards. In re S.M.L., 171 S.W.3d at 477. Conduct that demonstrates awareness of an endangering environment is sufficient to show endangerment. Id. (citing In re Tidwell, 35 S.W.3d 115, 119-20 (Tex. App.—Texarkana 2000, no pet.) ("[I]t is not necessary for [the mother] to have had certain knowledge that one of the [sexual molestation] offenses actually occurred; it is sufficient that she was aware of the potential for danger to the children and disregarded that risk by . . . leaving the children in that environment.")). In considering whether to terminate parental rights, the court may look at parental conduct both before and after the birth of the child. Avery v. State, 963 S.W.2d 550, 553 (Tex. App.—Houston [1st Dist.] 1997, no pet.). Section D permits termination based upon only a single act or omission. In re R.D., 955 S.W.2d at 367.
A.H. argues that the Department failed to prove by clear and convincing evidence a violation of subsection (D) because there was no evidence presented of the children's living conditions. While the endangerment analysis focuses on the evidence of the child's physical environment, the environment produced by the conduct of the parents bears on the determination of whether the child's surroundings threaten his or her well-being. In re M.R.R., No. 10-15-00303-CV, 2016 WL 192583, at *4 (Tex. App.—Waco Jan. 14, 2016, no pet.) (mem. op.). "Section D permits termination if the petitioner proves parental conduct caused a child to be placed or remain in an endangering environment." Jordan, 325 S.W.3d at 721. In this instance, the evidence supports the finding that A.H.'s conduct on the night she was arrested caused R.H. and D.H. to be placed in an endangering environment.
A.H. argues that the events of that night were insufficient to establish that the children were in a dangerous condition or surrounding. A.H. bases this on her assertion that "sitting in a vehicle on the shoulder of the road" did not endanger the children. However, before the children were in a vehicle on the side of the road, they were in A.H.'s disabled vehicle on the railroad tracks—a dangerous situation despite A.H.'s argument to the contrary. A train does not have to be actually approaching a crossing for the danger it poses to be actual and imminent. "Every railroad crossing is dangerous . . . ." Rankin v. Union Pac. R.R. Co., 319 S.W.3d 58, 63 (Tex. App.—San Antonio 2010, no pet.) (quoting Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 235 (Tex. 1978)). And the driver of a vehicle using a crossing "must exercise ordinary care to discover and avoid approaching trains." Port Terminal R.R. Ass'n v. Richardson, 808 S.W.2d 501, 504 (Tex. App.—Houston [14th Dist.] 1991, writ denied). In this case, A.H. failed to use ordinary care, and her actions placed the children in a dangerous condition or surrounding.
Mansell testified that A.H.'s vehicle was forty yards from the roadway. He did not specifically note that the vehicle was forty yards from a crossing, although that is a reasonable inference from the circumstances. The danger to the children would have been even greater if A.H. had managed to get her vehicle on the tracks without accessing a crossing, as it would then be in a completely unexpected location.
Under subsection 161.001(b)(1)(E), the relevant inquiry is whether evidence exists that the endangerment of the child's well-being was the direct result of the parent's or another's conduct, including acts, omissions, or failures to act. In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet. denied); Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App.—Dallas 1995, no writ).
Additionally, termination under subsection (E) must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. In re J.T.G., 121 S.W.3d [117, 125 (Tex. App.—Fort Worth 2003, no pet.)]; see also TEX. FAM. CODE ANN. § 161.001[(b)](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; J.T.G., 121 S.W.3d at 125. The specific danger to the child's well-being may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).In re T.T.F., 331 S.W.3d 461, 483 (Tex. App.—Fort Worth 2010, no pet.).
A.H. argues that the trial court based its decision on the one incident that occurred on the night of her arrest. She contends that there was only a threat of physical injury "if a train had been coming when [A.H.]'s car was on the railroad track with the children in it," and there was "no evidence that R.H. and D.H. were in [A.H.]'s car when a train was approaching."
Despite A.H.'s argument, the evidence is legally and factually sufficient to establish that A.H. knowingly placed R.H. and D.H. in conditions or surroundings that endangered their physical and emotional well-being and that she engaged in conduct that endangered their physical and emotional well-being. A.H. drove a vehicle while intoxicated with her children in the car. She managed to drive her vehicle onto railroad tracks where it became disabled, endangering not only her children, but herself and others who could be harmed if a train actually hit the SUV. A.H. was so intoxicated she had no idea where she was. As noted, a child does not have to actually suffer injury for the court to determine that the parent engaged in conduct that endangered the child's physical and emotional well-being. J.T.G., 121 S.W.3d at 125.
The incident for which A.H. was arrested is the clearest, but not the only, example that she engaged in conduct that endangered the physical and emotional well-being of the children. A.H. admitted to having a cocaine drug habit while she had custody of the children. The hair follicle tests established that she continued her drug usage after the children were removed from her custody. Drug and alcohol usage have caused her to be incarcerated more than once while the Department was involved.
A parent's illegal drug use and drug-related criminal activity may . . . support a finding that the child's surroundings endanger his or her physical or emotional wellbeing. And "[b]ecause it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under section 161.001(1)(E)." A parent's continued drug use demonstrates an inability to provide for the child's emotional and physical needs and to provide a stable environment for the child.M.R.R., 2016 WL 192583, at *5 (citations omitted); see also In re Z.C., 280 S.W.3d 470, 474 (Tex. App.—Fort Worth 2009, pet. denied). "[A] court may consider evidence establishing that a parent continued to engage in endangering conduct after the child's removal by the Department or after the child no longer was in the parent's care, thus showing the parent continued to engage in the course of conduct in question." In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no pet.). A parent's continued illegal drug use after a child's removal, and knowing that her parental rights are in jeopardy, is conduct that supports termination under both sections (D) and (E). In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at *5 (Tex. App.—Fort Worth Oct. 1, 2015, no pet.) (mem. op.). A.H.'s drug use both before and after the children were removed provides sufficient evidence to show that she continued to engage in conduct that was endangering to R.H. and D.H..
A.H. has also created a home life that endangers the physical and emotional well-being of her children by failing to take the medicine prescribed to reduce the symptoms of her bipolar disorder. Without the medication, A.H. exhibited erratic behavior that proved embarrassing for the children and that induced some fear on the part of R.H. due to not knowing how her mother would act. While mental illness in and of itself is not grounds for terminating the parent-child relationship, "[u]ntreated mental illness can expose a child to endangerment . . . and is a factor the court may consider." In re S.R., 452 S.W.3d 351, 363 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Also, evidence that a parent is non-compliant with prescribed psychiatric medication is not consistent with providing a safe and stable environment for the children. In re J.-M.A.Y., No. 01-15-00469-CV, 2015 WL 6755595, at *7 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, pet. denied) (mem. op.); see also E.J. v. Dep't of Family & Protective Servs., No. 01-11-00763-CV, 2012 WL 1564315, at *4 (Tex. App.—Houston [1st Dist.] May 3, 2012, no pet.) (mem. op.) ("While mental incompetence or mental illness alone are not grounds for termination of the parent-child relationship, when a parent's mental state allows her to engage in conduct that endangers the physical or emotional well-being of the child, that conduct has bearing on the advisability of terminating the parent's rights."). A.H. also failed to acknowledge or address D.H.'s severe disabilities, creating the likelihood that she will fail to provide adequate care for him if she regains custody.
Viewing all the evidence in the light most favorable to the trial court's findings, we therefore conclude that a reasonable trier of fact could have formed a firm belief or conviction that A.H. knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being and that A.H. engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being. We hold that the evidence is legally sufficient to establish that A.H. violated Family Code subsections 161.001(b)(1)(D) and (E).
Viewing the evidence as a whole, we conclude that a factfinder could have reasonably formed a firm belief or conviction that A.H. knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being and that A.H. engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being. We therefore hold that the evidence is factually sufficient to establish that A.H. violated Family Code subsections 161.001(b)(1)(D) and (E). We thus overrule A.H.'s first two issues.
Incarceration
In her third issue, A.H. asserts that the trial court erred in basing its decision to terminate her parental rights on her incarceration because she gave the Department the names of two women with whom the Department could place the children.
Imprisonment by itself does not "constitute engaging in conduct that endangers the physical or emotional well-being of the child." Robinson v. Tex. Dep't of Protective & Regulatory Servs., 89 S.W.3d 679, 686 (Tex. App.—Houston [1st Dist.] 2002, no pet.) "However, if all the evidence, including imprisonment, shows a course of conduct that has the effect of endangering the physical or emotional well-being of the child, a finding under section 161.001[(b)](1)(E) is supportable." Id.; see also In re S.T., 263 S.W.3d 394, 401 (Tex. App.—Waco 2008, pet. denied) ("[E]vidence of imprisonment may be considered with other evidence tending to establish that the parent has engaged in a course of conduct which has the effect of endangering the child, and collectively such evidence can support a finding to this effect.").
In the present case, A.H.'s incarceration at the time of the trial was only the latest in a series of incarcerations. See In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) ("[C]onduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child."). As previously noted, there was clear and convincing evidence, beyond her incarceration, that A.H. engaged in a course of conduct that had the effect of endangering the physical and emotional well-being of R.H. and D.H. See Robinson, 89 S.W.3d at 686-87 ("We conclude that appellant's illegal drug activity, a violation of community supervision after agreeing not to commit such acts in the Plan for reunification with her children, established clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered the well-being of her children.").
A.H. argues that the Department should have placed R.H. and D.H. with one of the persons she named to be surrogate caretakers—Sharonda Campbell and Shonda Davis. She asserts that the Department failed to conduct a home study of either woman in violation of section 262.114 of the Family Code. Subsection 262.114(a) provides:
Before a full adversary hearing under Subchapter C, the Department of Family and Protective Services must perform a background and criminal history check of the relatives or other designated individuals identified as a potential relative or designated caregiver, as defined by Section 264.751, on the proposed child placement resources form provided under Section 261.307. The department shall evaluate each person listed on the form to determine the relative or other designated individual who would be the most appropriate substitute caregiver for the child and must complete a home study of the most appropriate substitute caregiver, if any, before the full adversary hearing. Until the department identifies a relative or other designated individual qualified to be a substitute caregiver, the department must continue to explore substitute caregiver options. The time frames in this subsection do not apply to a relative or other designated individual located in another state.TEX. FAM. CODE ANN. § 262.114(a) (West Supp. 2016). Courts have held, however, that the "failure to conduct or obtain a home study pursuant to section 262.114 is not a bar to termination." See In re G.B. II, 357 S.W.3d 382, 384 (Tex. App.—Waco 2011, no pet.).
Simpson testified that she spoke only with Campbell and that was by telephone. After that conversation, Simpson determined that no home study would be conducted because A.H. had only known Campbell for approximately one year. Additionally, Campbell had never met the children until she attended a supervised meeting with A.H. and the children. Campbell did show sufficient interest in the children's placement to appear as a witness for A.H. at the trial. Campbell testified that she would love to have the children stay with her and see them one day reunited with their mother. She further testified that if reunification with A.H. was not possible, then she would like to care for the children until they were ready to go to college. Campbell also testified that she had experience helping with a child born with some disabilities. "[R]ight now he's five years old, he's back with his mother, he is now able to speak, he's able to live a normal life."
Although Simpson believed Campbell was sincere in wanting to care for the children, she did not consider placement of R.H. and D.H. with Campbell because Campbell had no ongoing relationship or bond with the children. Simpson testified that the Department ideally wanted the children to be placed with a family member or with someone with whom they already shared a bond, like the foster family with whom they were residing.
A.H. further argues that the Department should have considered her alternative substitute caretaker, Shonda Davis, for placement. On cross-examination, Simpson was asked, "[a]nd has [A.H.] ever provided you the names of any family or friends that she would like the Department to consider for placement?" Simpson responded in the affirmative and named Sharonda Campbell and Shonda Davis. She was then asked, "[h]ave you met with those two individuals?" Her response was "I've only spoken to Ms. Sharonda Campbell." Simpson was asked no further questions about Davis, so her reasons for not investigating Davis as a possible caretaker for the children are unknown. As previously noted, however, the failure to conduct a home study is not a bar to termination. See In re G.B. II, 357 S.W.3d at 384. A.H.'s third issue is overruled.
Best Interest of the Children
As noted above, in her fourth issue, A.H. argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights was in the best interest of R.H. and D.H. In determining the best interest of a child, a number of factors have been considered, including (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72. This list is not exhaustive, but simply indicates factors that have been or could be pertinent. Id. at 372. "The Department is not required to prove all of these Holley factors, and the absence of evidence about some factors does not preclude the factfinder from reasonably forming a strong conviction that termination is in the child's best interest." In re J.M., No. 01-14-00826-CV, 2015 WL 1020316, at *6 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.). "While no one factor is controlling, analysis of a single factor may be adequate in a particular factual situation to support a finding that termination is in the best interest of the child." In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). Evidence establishing one of the predicate acts under subsection 161.001(b)(1) may also be relevant in determining the best interest of a child. J.M., 2015 WL 1020316, at *6; see also In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree, 907 S.W.2d at 86. "Prompt and permanent placement of the child in a safe environment is . . . presumed to be in the child's best interest." J.M., 2015 WL 1020316, at *6. "The need for permanence is the paramount consideration for the child's present and future physical and emotional needs" and "[t]he goal of establishing a stable, permanent home for a child is a compelling interest of the government." Dupree, 907 S.W.2d. at 87.
The Desires of the Child
No testimony regarding the desires of either child was introduced. Simpson and A.H. both testified that A.H. loves her children and they love her. The Emotional and Physical Needs of the Child Now and in the Future
The Emotional and Physical Danger to the Child Now and in the Future
A.H.'s history has been previously recounted. The evidence that supports the trial court's findings that A.H. violated Family Code subsections 161.001(b)(1)(D) and (E) also supports the finding that A.H.'s actions have been and will continue to be emotionally and physically damaging to R.H. and D.H. A parent's history, admissions of inappropriate behavior, drug abuse, and inability to maintain a lifestyle free from arrests and incarcerations are relevant to the best-interest determination in addition to an endangerment finding. See In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.).
The Parental Abilities of the Individuals Seeking Custody and the Programs Available to Assist These Individuals
A.H. has failed to meet the physical and emotional needs of R.H. and D.H., reflecting her poor parenting skills. As previously noted, A.H. has a history replete with incarcerations and illegal drug usage. She also failed to take the medication prescribed to alleviate the symptoms of her bipolar disorder. Although A.H. completed the majority of the requirements of the family service plan prepared by the Department, her incarceration prevented her from implementing any of the parenting strategies and techniques she had learned. The fact that she continued to use illegal controlled substances even after her children had been temporarily removed indicates she had no true investment in altering her behavior to implement any of those strategies and techniques.
The Plans for the Child by the Individuals or by the Agency Seeking Custody and the Stability of the Home or Proposed Placement
Simpson testified that the Department's plan for R.H. and D.H. is "unrelated adoption concurrent with relative adoption." She noted that the psychological assessments of the children recommended that they be placed together. A.H. identified no relatives who would care for the children. Simpson testified that the fathers of both R.H. and D.H. had done very little to attempt to obtain custody of the children. She spoke with the sister of D.H., who initially expressed an interest in caring for D.W. Simpson testified that she did not believe the sister was a suitable candidate for placement because she was only interested in caring for D.H. Simpson also stated that the sister never expressly indicated she wanted to move forward with the placement, instead requesting more information about D.H.'s condition to enable her to determine whether she could meet D.H.'s daily needs. Simpson did not pursue a further investigation of D.H.'s sister.
Simpson noted that both R.H. and D.H. are doing well in their foster home placement and that the foster family has expressed interest in adopting them. The foster family has been caring for the children since they were first removed from A.H.'s custody. Simpson testified that the foster family is addressing D.H.'s medical issues and developmental delays, scheduling and attending doctor's appointments, and enrolling him in speech therapy, occupational therapy, and play therapy. The foster family has also enrolled both children in extracurricular activities, such as dance. Simpson testified that she believes the foster home is a safe and suitable environment for the children, that she believes the foster parents love the children, and that it would be in the children's best interest to be adopted by the foster family.
DeBusk testified that she also believes it is in the best interest of the children to terminate A.H.'s parental rights and to have them adopted by the foster family. She further testified that she was in monthly contact with the children and the foster family. In response to direct questioning, she noted that the children appear bonded with the foster family and that they appear to love one another.
A.H. has no specific plan for the children in the future, mainly because she will remain incarcerated for a number of months. She testified that she was not sure where she would live after she was released from incarceration but would probably go to a shelter before she saved up enough money for an apartment. A.H. was also not sure whether she would remain in the Dallas area or return to Louisiana. Her only real plan was to have the children placed with Campbell—someone A.H. has known for only one year and who has interacted with the children only once during a one-hour, supervised visitation at the Department's offices. She has no other long-term plans.
The factfinder may compare the parent's and the Department's plans for the child and consider "whether the plans and expectations of each party are realistic or weak and ill-defined." In re J.D., 436 S.W.3d 105, 119-20 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A parent's failure to show that he or she is stable enough to parent children for any prolonged period entitles the factfinder "to determine that this pattern would likely continue and that permanency could only be achieved through termination and adoption." In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at *9 (Tex. App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.). A factfinder may also consider the consequences of its failure to terminate parental rights and that the best interest of the children may be served by termination so that adoption may occur rather than the temporary foster-care arrangement that would result if termination did not occur. See D.O. v. Tex. Dep't of Human Servs., 851 S.W.2d 351, 358 (Tex. App.—Austin 1993, no pet.), disapproved of on other grounds by J.F.C., 96 S.W.3d at 267 n.39. As previously noted, the goal of establishing a stable, permanent home for children is a compelling state interest. Dupree, 907 S.W.2d at 87.
A.H.'s plans for her future with her children are "weak and ill-defined." See J.D., 436 S.W.3d at 120. The Department's plans for the children offer the stability and permanence that is "paramount in the upbringing of children." See id.
Acts or Omissions of the Parent that May Indicate the Existing Parent-Child Relationship Is Not a Proper One and Any Excuse for the Acts or Omissions of the Parent
The evidence previously noted supports the finding that the relationship between A.H. and her children is not a proper one. A.H. has no real excuse for her actions other than, "I love them and I ain't bad, they just keep arresting me." The trial court noted, "I don't think anybody doubts that you love your children. That's not in question." But, when considering the best interests of a child, "[s]ometimes, love is not enough." J.D.S. v. Tex. Dep't of Family & Protective Servs., 458 S.W.3d 33, 46 (Tex. App.—El Paso 2014, no pet.); see also In re M.R.H., No. 07-15-00089-CV, 2015 WL 3463025, at *4 (Tex. App.—Amarillo May 26, 2015, pet. denied) (mem. op.); In re T.L.R., No. 14-14-00812-CV, 2015 WL 1544796, at *10 (Tex. App.—Houston [14th Dist.] Apr. 2, 2015, no pet.) (mem. op.).
Viewing the evidence in the light most favorable to the trial court's findings, we hold that the trial court could reasonably have formed a firm belief or conviction by clear and convincing evidence that termination of A.H.'s parental rights was in the best interest of R.H. and D.H. As such, we hold that the evidence is legally sufficient to establish that termination was in R.H.'s and D.H.'s best interest.
Viewing the evidence as a whole, we hold that the trial court could reasonably have formed a firm belief or conviction by clear and convincing evidence that termination of A.H.'s parental rights was in the best interest of R.H. and D.H. As such, we hold that the evidence is factually sufficient to establish that termination was in R.H.'s and D.H.'s best interest. A.H.'s fourth issue is overruled.
Right to Counsel
In her fifth issue, A.H. asserts that the trial court violated her rights under section 107.013 of the Family Code by failing to advise her that she had a right to be represented by counsel and to have a court-appointed attorney ad litem represent her at the adversary hearing. An attorney was appointed to represent A.H. approximately two months after this case was initiated. A.H. was, therefore, represented by counsel sixteen of the eighteen months this case was pending. However, A.H. did not at any time complain to the trial court about the alleged violation of her rights. She has, therefore, failed to preserve the issue for review. See TEX. R. APP. P. 33.1(a); In re H.R.T., No. 11-16-00055-CV, 2016 WL 4385724, at *5 (Tex. App.—Eastland Aug. 12, 2016, no pet.) (mem. op.).
Counsel was appointed by order signed October 2, 2015.
Furthermore, even if the issue was preserved, it is without merit. The effective date of the amendment requiring notification of the right to counsel at a parent's first appearance was September 1, 2015. Act of May 12, 2015, 84th Leg., R.S., ch. 128, §§ 1, 4-5, sec. 107.013, 2015 Tex. Sess. Law Serv. 1131, 1131-33 (West). The original petition in this case was filed on August 14, 2015. A.H.'s fifth issue is therefore overruled.
Conclusion
Having overruled all of A.H.'s issues, we affirm the trial court's order of termination.
REX D. DAVIS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed September 27, 2017
[CV06] * (Chief Justice Gray concurs in the judgment of the Court to the extent it affirms the trial court's termination of parental rights. A separate opinion will not issue.)