in the Interest of M.B.M. and J.J.M., Children

Opinion issued August 27, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00256-CV
———————————
IN THE INTEREST OF M.B.M. AND J.J.M., CHILDREN

On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2014-00491J

MEMORANDUM OPINION

The trial court terminated the parental rights of L.M., the mother, to her two

children, M.B.M. and J.J.M.1 In two issues L.M. argues that the evidence was

legally and factually insufficient to support the termination of her parental rights

1
The trial court also terminated the parental rights of the children’s fathers.
However, only the mother appealed the trial court’s judgment, so neither father is
a party to this appeal.
under Texas Family Code section 161.001(1)(D) and (E) and under Family Code

section 161.001(2).

We affirm.

Background

L.M. is the mother of M.B.M. and J.J.M., who were born on August 21,

2010, and August 19, 2012, respectively. The Texas Department of Family and

Protective Services (“DFPS”) became involved in the children’s lives on

November 30, 2013, based on a report of L.M.’s neglectful supervision and

physical abuse of both children. M.B.M., who was three years old at the time, had

a swollen nose and was bleeding from her nose and mouth, and J.J.M., who was

one year old, had an abrasion to his chin and “redness to [his] right cheek.” The

report also alleged that L.M. needed psychiatric care but refused treatment.

Another report indicated that L.M. had been observed “dragging the children and

being aggressive with them,” which again resulted in physical injuries to both

children. On January 30, 2014, DFPS filed its original petition in this case seeking

termination of L.M.’s parental rights.

At trial, DFPS caseworker Erica Stringer testified that after taking M.B.M.

and J.J.M. into protective care, DFPS learned that L.M. had previous involvement

with DFPS. A court had terminated her parental rights to four older children,

including the termination of her parental rights to two children in August 2010,

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approximately one week before M.B.M. was born. Those terminations were based

on findings that L.M. endangered two of her older children, failed to comply with

the court-ordered rehabilitation plan, and used controlled substances in a manner

that endangered her children. During the pendency of the current DFPS case, L.M.

also gave birth to her seventh child, who was subsequently placed into DFPS care.

Stringer stated that, regarding DFPS’s case involving M.B.M. and J.J.M.,

L.M. was given a family service plan. Stringer met with L.M. to discuss the

services that DFPS offered to her, and she believed that L.M. understood the

service plan. However, L.M. failed to complete her services. Specifically, she

failed to complete the substance abuse treatment, domestic violence classes, anger

management classes, and individual counseling requirements, and she also failed to

obtain stable housing and employment. Stringer also testified that L.M. was

involved in criminal activities and that she missed “a lot of visits” with her

children over the course of the case because she was incarcerated. Stringer stated

that L.M. had never called to ask how M.B.M. and J.J.M. were doing and had

never sent letters or gifts to the children. Stringer further testified that M.B.M. had

made an outcry of sexual abuse at the hands of her mother’s friend to her

grandmother, and DFPS determined that there was “reason to believe” the

allegation.

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 DFPS presented evidence of L.M.’s criminal history. The record indicated

that L.M. had a 2007 conviction for possession of cocaine; a 2009 conviction for

assault; a 2009 conviction for possession of an inhalant; a 2011 conviction for

assault of a family member; a 2013 conviction for criminal mischief; and 2013

conviction for possession of an inhalant. Several of these convictions resulted in

L.M.’s being incarcerated for short periods of time. Also, in December 2013, L.M.

committed the offense of forgery of a government financial instrument. In March

2014, she was placed on community supervision for this offense; however, in

November 2014, the criminal court rendered judgment against L.M. for this

offense and assessed a sentence of two years’ incarceration. Thus, at the time of

trial in the underlying proceeding, L.M. was incarcerated.

DFPS also introduced into evidence three drug tests administered to L.M. on

February 13, 2014, May 9, 2014, and July 17, 2014. She tested positive for

cocaine use in February 2014 and July 2014. L.M. refused to comply with the

court-ordered blood test on May 9, 2014. Stringer testified that she asked L.M. to

go take a drug test “at least 20 times,” but L.M. refused on all but two occasions.

DFPS records showed that L.M. likewise tested positive for opiate use on May 14,

2014.

Regarding M.B.M.’s and J.J.M.’s placement at the time of trial, Stringer

testified that both children were placed with M.B.M.’s paternal grandmother and

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her husband, who had previously adopted two of M.B.M.’s and J.J.M.’s siblings.

At the time of trial, M.B.M was four years old and J.J.M. was two years old. They

were both doing well in the grandparents’ care and had no special needs. Stringer

testified that the grandparents “do a great job with raising the kids” and that the

children were “happy with them.” Stringer stated that M.B.M. was enjoying

school and that both children were “well-bonded” with the grandparents and their

siblings. She also testified that the grandparents had provided care to both children

even before DFPS became involved in the case and that they intended to adopt the

children.

The grandmother testified at trial that she was happy to have custody of the

children and that she wanted to continue to raise them. She stated that the children

called her “mommy,” and she did not believe that they would be happy anywhere

else. The grandmother testified regarding M.B.M.’s outcry of sexual abuse by a

male friend of L.M.’s. M.B.M. testified that the man gave her a bath, got into the

bathtub with her, and touched her “private parts.” The grandmother discovered

that L.M. “would let the guy take [M.B.M.] on the weekends because he would

give [L.M.] money just to take care of [M.B.M.].” The grandmother stated that

M.B.M. was receiving therapy because of that abuse, that the therapy was helping

M.B.M., and that she and her husband were willing to continue the therapy for as

long as M.B.M. needed it. M.B.M. also reported to her grandmother and her

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attorney ad litem that her mother hit her, pulled her hair when she was angry, and

called her “a bitch.”

L.M. was unable to be present at the trial to testify because she was

incarcerated. She had been transferred to a different unit, so her counsel’s bench

warrant could not be executed. Her counsel sought a continuance in order to

procure L.M.’s attendance in court, but the trial court denied this request. No

witnesses testified on L.M.’s behalf, and she presented no evidence.

The trial court found clear and convincing evidence that L.M. violated

Family Code subsections 161.001(1)(D), (E), (M), (N), (O), and (P) and that

termination of her parental rights was in the children’s best interest. Accordingly,

the trial court rendered its final judgment terminating L.M.’s parental rights to

M.B.M. and J.J.M. and naming DFPS as the permanent managing conservator.

This appeal followed.

Sufficiency of the Evidence

L.M. challenges the sufficiency of the evidence supporting the trial court’s

determinations that termination was proper under Family Code subsections

161.001(1)(D) and (E) and that termination of L.M.’s parental rights was in the

children’s best interest.

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A. Standard of Review

In a case to terminate parental rights brought by DFPS under section

161.001, DFPS must establish, by clear and convincing evidence, (1) that the

parent committed one or more of the enumerated acts or omissions justifying

termination and (2) that termination is in the best interest of the child. TEX. FAM.

CODE ANN. § 161.001 (Vernon 2014); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).

“Clear and convincing evidence” is “the measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007

(Vernon 2014); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).

In conducting a legal-sufficiency review in a parental-rights-termination

case brought by DFPS under Family Code section 161.001, we must look at the

entire record to determine whether the evidence, viewed in the light most favorable

to the finding, is such that a reasonable factfinder could have formed a firm belief

or conviction about the truth of the matter on which DFPS bore the burden of

proof. In re J.O.A., 283 S.W.3d at 344–45 (quoting In re J.F.C., 96 S.W.3d 256,

266 (Tex. 2002)). We “must assume that the factfinder resolved disputed facts in

favor of its finding if a reasonable factfinder could do so,” and we “should

disregard all evidence that a reasonable factfinder could have disbelieved or found

7
to have been incredible.” Id. at 344; Jordan v. Dossey, 325 S.W.3d 700, 712–13

(Tex. App.—Houston [1st Dist.] 2010, pet. denied).

In conducting a factual-sufficiency review, we view all of the evidence,

including disputed or conflicting evidence. In re J .O.A., 283 S.W.3d at 345. We

should consider whether the disputed evidence is such that a reasonable factfinder

could not have resolved that disputed evidence in favor of its finding. In re J.F.C.,

96 S.W.3d at 266. The evidence is factually insufficient only if, “in light of the

entire record, the disputed evidence that a reasonable factfinder could not have

credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction” regarding the finding under

review. In re J.O.A., 283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at 266).

DFPS must establish both elements—that the parent committed one of the

acts or omissions enumerated in section 161.001(1) and that termination is in the

best interest of the child. See TEX. FAM. CODE ANN. § 161.001; In re C.H., 89

S.W.3d at 23. Termination may not be based solely on the trier of fact’s

determination of the best interest of the child. In re A.B., 437 S.W.3d 498, 504

(Tex. 2014) (citing Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987)). However, “[o]nly one predicate finding under section 161.001(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.

8
2003); In re A.C., 394 S.W.3d 633, 639 (Tex. App.—Houston [1st Dist.] 2012, no

pet.).

B. Findings Pursuant to Section 161.001(1)

In her first issue, L.M. argues that the evidence was legally and factually

insufficient to establish that she endangered the children pursuant to subsections

161.001(1)(D) and (E). See TEX. FAM. CODE ANN. § 161.001(1)(D) (providing that

court may terminate parent-child relationship if 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”); id. § 161.001(1)(E)

(providing that court may terminate parent-child relationship 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”).

L.M. does not challenge the sufficiency of the evidence supporting the trial

court’s findings under subsections 161.001(1)(M), (N), (O), or (P). See id.

§ 161.001(1)(M) (permitting termination of parental rights when parent has had her

parent-child relationship terminated with respect to another child based on finding

of endangerment); id. § 161.001(1)(N) (permitting termination when parent has

constructively abandoned child); id. § 161.001(1)(O) (permitting termination when

parent has failed to comply with provisions of court order that specifically

established actions necessary for parent to obtain return of child); id. §

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161.001(1)(P) (permitting termination of parental rights when parent has used

controlled substance in manner that endangered child’s health or safety). “Only

one predicate finding under section 161.001(1) is necessary to support a judgment

of termination when there is also a finding that termination is in the child’s best

interest.” See In re A.V., 113 S.W.3d at 362. Because L.M. does not challenge the

sufficiency of the evidence supporting the trial court’s findings pursuant to

subsections 161.001(1)(M), (N), (O), or (P), and the trial court also found that

termination was in the children’s best interest, as discussed below, we need not

address the sufficiency of the evidence to support its findings pursuant to

subsections 161.001(1)(D) and (E). See id.

We overrule L.M.’s first issue.

C. Findings on Children’s Best Interest

In her second issue, L.M. argues that the evidence was insufficient to

support the trial court’s conclusion that termination of her parental rights was in

the children’s best interest.

There is a strong presumption that the best interest of the children will be

served by preserving the parent-child relationship. See In re R.R., 209 S.W.3d 112,

116 (Tex. 2006) (per curiam). 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 ANN. § 263.307(a) (Vernon 2014). The Family Code and the Texas

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Supreme Court have both set out numerous factors to be considered in determining

a child’s best interest, including, among others: the child’s age and physical and

mental vulnerabilities; the child’s desires; the magnitude, frequency, and

circumstances of harm to the child, including current and future danger to the

child; whether there is a history of substance abuse by the child’s family; the

willingness and ability of the child’s family to seek out, accept, and complete

counseling services and to cooperate with and facilitate an appropriate agency’s

close supervision; whether the child’s family demonstrates adequate parenting

skills, including providing the child and other children under the family’s care with

minimally adequate health and nutritional care, guidance and supervision, and a

safe physical home environment; the stability of the home or proposed placement;

and the parent’s acts or omissions indicating an improper parent-child relationship

and any excuses for the acts or omissions. See id. § 263.307(b); In re R.R., 209

S.W.3d at 116; Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

This is not an exhaustive list, and a court need not have evidence on every

element listed in order to make a valid finding as to the child’s best interest. In re

C.H., 89 S.W.3d at 27. The evidence supporting the statutory grounds for

termination may also be used to support a finding that the best interest of the child

warrants termination of the parent-child relationship. Id. at 28; In re N.R.T., 338

S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). Furthermore, the best

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interest analysis may consider circumstantial evidence, subjective factors, and the

totality of the evidence as well as the direct evidence. In re N.R.T., 338 S.W.3d at

677.

Here, multiple factors support the trial court’s finding that termination was

in the children’s best interest. M.B.M. was four and J.J.M. was two at the time of

trial, and they had lived with their grandmother for a significant portion of their

young lives. Thus, the children’s ages and physical and mental vulnerabilities

weigh in favor of terminating L.M.’s parental rights. See TEX. FAM. CODE ANN.

§ 263.307(b)(1).

Furthermore, L.M. tested positive for illegal drug use on multiple occasions,

even after her children were removed from her care, and she failed to complete her

family service plan, including the requirements that she complete substance abuse

treatment, domestic violence classes, anger management classes, and individual

counseling. She likewise failed to obtain stable housing or employment. See In re

E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (holding that findings under section

161.001(l)(O) that parent failed to complete court-ordered services can support

best interest finding); In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005,

no pet.) (“A parent’s engaging in illegal drug activity after agreeing not to do so in

a service plan for reunification with her children is sufficient to establish clear and

12
convincing proof of voluntary, deliberate, and conscious conduct that endangered

the well-being of her children.”).

There was evidence that L.M. engaged in conduct that endangered M.B.M.

and J.J.M. M.B.M. testified that her mother hit her, pulled her hair when she was

angry, and called her “a bitch.” L.M. also permitted a male friend to take M.B.M.

away for the weekend in exchange for money, resulting in M.B.M.’s becoming a

victim of sexual abuse. L.M. tested positive for drug use on multiple occasions

after the children were removed from her care, and she did not comply with at least

one court-ordered drug test. L.M. also had an extensive criminal history, including

offenses that she committed after being ordered by the court to refrain from

engaging in criminal activity. She was incarcerated at the time of trial, and she had

missed numerous opportunities to visit her children. She likewise had failed to

send the children any letters or gifts. Thus, the record contains evidence regarding

circumstances that resulted in harm to the children and a lack of physical safety for

the children. It also revealed the extent of L.M.’s history of drug abuse, her

unwillingness to complete court-ordered services, and her lack of parenting skills.

See TEX. FAM. CODE ANN. § 263.307(b) (providing that, in determining best

interest of child, courts should consider circumstances of harm, history of

substance abuse, willingness to complete services, demonstration of parenting

skills, and safety of physical home environment); Holley, 544 S.W.2d at 371–72

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(providing that, in determining best interest of child, courts should examine

stability of home and proposed placement and parent’s acts or omissions indicating

improper relationship).

Regarding the children’s placement at the time of trial, Stringer testified that

the grandmother had been caring for the children since they were removed from

L.M. and wanted to adopt them. The children were bonded to their grandparents

and to their siblings who had previously been adopted by the grandparents. The

grandmother testified that she had provided care for the children even before DFPS

became involved in the children’s lives. The children loved her and called her

“mommy,” and she did not believe that the children would be happy anywhere

else. The grandmother and her husband were good caregivers and were committed

to providing the care that M.B.M. and J.J.M. would need. Thus, the stability of the

proposed placement also weighs in favor of terminating L.M.’s parental rights. See

Holley, 544 S.W.2d at 371–72 (providing courts should consider stability of

proposed placement in determining children’s best interest).

We conclude that the evidence was legally sufficient to support the trial

court’s finding that termination of L.M.’s parental rights to M.B.M. and J.J.M. was

in the children’s best interest. See In re J.O.A., 283 S.W.3d at 344–45.

L.M. argues that the evidence was incomplete because she was not able to be

present to testify at trial due to the fact that the Texas Department of Criminal

14
Justice had transferred her to a different unit, thus precluding the execution of her

bench warrant. However, she presents no argument or evidence demonstrating the

necessity of her presence at trial. She likewise does not challenge the trial court’s

denial of the continuance sought by her trial counsel. L.M.’s counsel argued at

trial that her second drug test showed a lower amount of drugs in her system, and,

thus, there was no evidence that she had continued using drugs after being ordered

by the court to stop, but L.M. did not present any evidence or make any other

arguments at trial.

Viewing all of the evidence, as we must, we conclude that any disputed

evidence was not so significant that a factfinder could not reasonably have formed

a firm belief or conviction that termination of L.M.’s parental-rights was in the

children’s best interest. See In re J.O.A., 283 S.W.3d at 345. Thus, we conclude

that the evidence was both legally and factually sufficient to support the trial

court’s finding that termination was in the children’s best interest. See id. at 344–

45.

We overrule L.M.’s second issue.

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 Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

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