NUMBER 13-07-00541-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF C.C., D.W., JR., AND A.W., CHILDREN
On appeal from the 267th District Court of DeWitt County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion by Justice Benavides
This is an appeal from a final order terminating the parental rights of Lucy,1 the
mother of C.C., D.W., Jr., and A.W.2 By five issues, Lucy challenges the termination order,
arguing that: (1) the evidence was factually insufficient to support a finding that termination
was in the children’s best interest; (2) the trial court erred by terminating her parental rights
based upon her drug use; (3) the Texas Department of Family and Protective Services (the
1
To protect the m other’s and children's privacy, we refer to the m other as Lucy, a fictitious nam e, and
the children by their initials. See T EX . F AM .C OD E A N N . § 109.002(d) (Vernon 2008); T EX . R. A PP . P. 9.8(b)(2).
2
At the tim e of trial, C.C. was eleven years old, D.W ., Jr., was eight years old, and A.W . was eighteen
m onths old.
“Department”) “jumped the gun” in seeking termination; (4) the trial court erroneously
conditioned her ability to see her children on a “clean” drug test prior to each visit; and (5)
the trial court erroneously terminated her parental rights based on her lack of contact with
the children while in the Department’s custody because she was judicially prevented from
visiting the children. We affirm.
I. BACKGROUND
A. Procedural History
On February 15, 2006, Lucy was pregnant with A.W. and went to a hospital to
deliver the baby. The Department received a referral for services on February 16, 2006,
because Lucy tested positive for cocaine and marijuana when she gave birth to A.W. The
Department took possession of C.C., D.W., Jr., and A.W. on February 23, 2006.3 On
February 24, 2006, it filed an “Original Petition for Protection of a Child,” seeking
appointment as the children’s conservator and to terminate Lucy’s parental rights.4
On February 24, 2006,5 the trial court issued temporary orders appointing the
Department as temporary managing conservator of the children. This order was extended
through March 14, 2006, at which time the court held a full adversarial hearing. After that
hearing, the trial court again issued a temporary order appointing the Department as
temporary managing conservator of the children. The court appointed Lucy as temporary
3
See T EX . F AM .C OD E A N N . § 262.104 (Vernon 2008) (providing for em ergency rem oval of children by
the Departm ent).
4
See id. § 262.105 (Vernon 2008).
5
The order states that the original petition was presented to the court on February 23, and the trial
court also signed and dated the order as February 23. However, the petition and affidavit were signed and
filed on February 24, and the order was filed on February 24. W e believe that the February 23 date was a
typographical error, of which the parties do not com plain.
2
possessory conservator and limited Lucy to supervised visitation every other week for two
hours. The court also allowed Lucy to call the children once a week on visitation weeks
and two times a week on non-visitation weeks. The order stated that, in order to obtain the
return of her children, Lucy would be required to: (1) submit to a psychological or
psychiatric examination; (2) attend counseling; (3) attend parenting classes; (4) participate
in drug and alcohol assessments and testing; (5) comply with a service plan created by the
Department; and (6) provide required information to the court.
On April 6, 2006, the Department prepared, and Lucy signed, a service plan setting
forth the actions required of Lucy to reunite with her children.6 In accordance with the trial
court’s order, the plan required Lucy to attend parenting classes, attend counseling
sessions, attend homemaking classes, submit to a psychological evaluation, submit to a
drug and alcohol assessment and follow the provider’s recommendations, participate in a
drug and alcohol recovery program and follow the guidelines and procedures of the
program, submit to drug testing, and maintain a positive level of cooperation with the
Department.7 On April 12, 2006, the trial court approved the service plan and adopted it
as an order.8
6
See id. § 263.101 (Vernon 2008) (“Not later than the 45th day after the date the court renders a
tem porary order appointing the departm ent as tem porary m anaging conservator of a child under Chapter 262,
the departm ent or other agency appointed as the m anaging conservator of a child shall file a service plan.”).
7
See id. § 263.102 (Vernon 2008) (setting out requirem ents for service plan).
8
See id. §§ 263.105, 263.201 (Vernon 2008) (stating court shall hold a hearing to review the service
plan); id. § 263.202 (Vernon 2008) (requiring court to review service plan’s accuracy, reasonableness, and
com pliance with court orders).
3
At a status hearing on July 6, 2006, the court found that Lucy had not demonstrated
adequate compliance with the service plan.9 It ordered that Lucy submit to drug tests
before any scheduled visitation with the children and that the visitation not occur if Lucy
tested positive for drugs.10
The court initially scheduled trial for February 8, 2007 and set a dismissal date for
February 26, 2007.11 However, on February 8, 2007, the Department requested that the
court retain the case on its docket for a period of not more than 180 days.12 The court
granted the motion and retained the case on its docket.
B. The Evidence at the Final Termination Hearing
After several more status hearings, the trial court held a final termination hearing on
July 18, 2007. The termination issue was tried to the court. The Department offered the
testimony of several of its caseworkers. Tiffany Graham testified that she conducted the
initial investigation.13 Crystal Laslie served as Lucy’s caseworker from July 2006 through
March 1, 2007. Lisa Wright was Lucy’s caseworker from March 1, 2007 until the
termination hearing on July 18, 2007. Diana Hoover, Lucy’s counselor, also testified, as
9
See id. § 263.202(c) (requiring court to inform the parties that com pliance with the service plan will
be reviewed at status hearings).
10
See id. § 263.106 (Vernon 2008) (“The court m ay render appropriate orders to im plem ent or require
com pliance with an original or am ended service plan.”).
11
See id. § 263.401(a) (Vernon 2008) (“Unless the court has com m enced the trial on the m erits or
granted an extension under Subsection (b), on the first Monday after the first anniversary of the date the court
rendered a tem porary order appointing the departm ent as tem porary m anaging conservator, the court shall
dism iss the suit affecting the parent-child relationship filed by the departm ent that requests term ination of the
parent-child relationship or requests that the departm ent be nam ed conservator of the child.”).
12
See id. § 263.401(b) (allowing a trial court to retain case on its docket for an additional 180 days
if extraordinary circum stances exist).
13
Thereafter, Cassie Bohac becam e Lucy’s caseworker and served in that capacity from March 2006
to July 2006. Bohac did not testify at trial.
4
did Lucy herself. The following facts are derived from these witnesses’ testimony.
1. Initial Investigation
First, Graham testified that on February 16, 2006, the Department received a
referral after Lucy went to the hospital to deliver A.W. At the time of the delivery, Lucy was
in a “severe emergency situation” because she had high blood pressure. Lucy tested
positive for cocaine and marijuana.
Graham testified A.W. was born with a low birth weight of four pounds, 2.6 ounces.
An initial urine test conducted on A.W. was negative for the presence of drugs. Laslie
testified that later, a meconium14 test showed that A.W. was positive for both cocaine and
marijuana. Graham testified, however, that other than a low birth weight, A.W. was a
healthy baby who appeared to have no effects from Lucy’s drug use.
Lucy remained in the hospital’s intensive care unit for five days, and Graham visited
her in the hospital after she was moved from the unit. Graham confronted Lucy about her
drug use. At the time, Lucy admitted that she had purchased marijuana cigarettes prior
to delivering A.W. At trial, Lucy explained that she had been nauseous during her
pregnancy and that she purchased marijuana on February 14, 2006, the day before A.W.
was born. Lucy claimed that she had not intentionally used cocaine and speculated that
the marijuana cigarettes had been laced with cocaine without her knowledge. Lucy later
admitted that she had purchased and used cocaine in October 2005, while pregnant with
A.W. At trial, Lucy claimed that her drug use in October 2005 occurred before she became
aware that she was pregnant.
14
“ M econium ” is the m edical term for a newborn infant’s first stools. See MedlinePlus Medical
Encyclopedia, http://www.nlm .nih.gov/m edlineplus/ency/article/002262.htm (last visited Mar. 12, 2009).
5
Graham stated that on February 19, 2006, during Lucy’s hospital stay, the hospital’s
nursing department reported that Lucy went outside of the hospital and visited with some
people in a vehicle. When Lucy returned to her hospital room, her blood pressure was
“significantly elevated.” The nurses became concerned and asked for a urine screen.
Lucy tested positive for cocaine at that time. Graham stated that a nurse opined that Lucy
had used cocaine in the parking lot, which would explain the sudden rise in Lucy’s blood
pressure.
On the contrary, Lucy testified that she visited with a friend, and they sat in a car
and smoked cigarettes. She denied using cocaine in the hospital parking lot. She
acknowledged, however, that any cocaine use on February 14, 2006 would not have
caused the positive drug test on February 19, 2006. She claimed that she was “set up”
somehow.
Graham stated that the Department had investigated Lucy in October 2005. Lucy
testified that at that time, she and the children were living in Cuero, Texas, with E.W., who
is A.W.’s father. The allegations in that investigation were that Lucy and E.W. were using
drugs in the home on a daily basis. The referral also stated that Lucy and E.W. were
smoking marijuana around C.C. and D.W., Jr.
Graham related that during the prior investigation, Joshua Miles, a caseworker,
visited the family at 10:30 in the morning on one particular occasion, and found E.W. to be
intoxicated. Miles observed a marijuana cigarette in an ashtray and one on the floor.
Furthermore, Miles determined that E.W. had struck D.W., Jr., on a prior occasion, causing
him to bleed. Lucy denied that E.W. ever abused D.W., Jr., or C.C.
Graham spoke with C.C. during her investigation. She testified that C.C. was aware
6
that his mother smoked marijuana, but he believed that she had stopped. At trial, Lucy
testified that she “may have” used drugs in her children’s presence, and she stated that the
children “know what [drugs] are.” She then clarified that C.C. and D.W., Jr., had seen her
smoke marijuana. She denied, however, that she had ever used cocaine around her
children or been under its influence in their presence.
Graham admitted that during the 2005 investigation, Miles visited C.C. and D.W.,
Jr., at school, and both children were dressed in clean, appropriate clothes and did not
appear to have any marks or bruises. Miles also talked to a local police officer, a neighbor,
a principal, and a school counselor, who all indicated they had not seen any evidence of
physical abuse and had no concerns about the family.
2. Lucy’s Conduct from March 2006 through June 2006
Laslie testified that after Graham conducted the initial investigation, the Department
created a family service plan for Lucy, which Lucy signed. Laslie testified that the
Department’s main concern was Lucy’s alleged drug use. Lucy completed a drug and
alcohol assessment by Mid-Coast Family Services (“Mid-Coast”) in early March 2006. Mid-
Coast determined that Lucy had a problem with marijuana, but that Lucy denied any and
all cocaine usage during the assessment. The assessment noted that Lucy was not
cooperative and recommended that she continue with the Department’s proposed services,
including random drug testing.
Laslie also testified that Lucy completed her psychological evaluation in March 2006
and that the psychologist felt it was critical that Lucy address her chemical dependency
problem. Lucy worked with homemaker services from April to June 2006, and she
received a certificate of completion. Lucy also completed a parenting class, as required
7
by the service plan.
In the spring of 2006, Lucy also attended three sessions with Hoover, a licensed
professional counselor. Hoover stated that in March of 2006, Lucy acknowledged that she
had a substance abuse problem. Hoover stated that they “didn’t seem to be getting very
far,” and Lucy stopped attending counseling after three sessions.
3. Lucy’s Conduct from July 2006 through February 2007
Laslie explained that on July 6, 2006, the trial court issued an order that required
Lucy to submit to a drug test before every scheduled visit with the children and that
precluded her from seeing the children if she failed the test. Laslie stated that, for the most
part, Lucy complied with the random drug testing. She testified that on August 14, 2006,
however, Lucy refused a drug test, stating that she had taken some prescription drugs that
were not prescribed to her. In addition, on several other occasions, Lucy was not home
when Laslie attempted to drug test her.
Laslie said that she performed nine drug tests during her service as Lucy’s
caseworker, five of which were positive for drugs:
• on July 14, 2006, Lucy tested negative for drugs;
• on July 24, 2006, Lucy tested positive for marijuana;
• on July 31, 2006, Lucy tested positive for marijuana and cocaine;
• on October 26, 2006, Lucy tested positive for marijuana and cocaine;
• on December 7, 2006, Lucy tested positive for cocaine;
• on December 14, 2006, the results were unavailable;
• on January 17, 2007, Lucy tested negative for drugs;
• on February 5, 2007, Lucy tested negative for drugs; and
8
• on February 28, 2007, Lucy tested positive for marijuana.
Laslie stated that in October of 2006, another drug and alcohol assessment was
performed. Lucy again denied using cocaine on a regular basis. Laslie testified that,
based on Lucy’s failure to be candid with Mid-Coast, it recommended that Lucy complete
an outpatient drug treatment program. Laslie gave Lucy contact numbers for several
rehabilitation clinics. However, Lucy never successfully completed an outpatient treatment
program. Laslie stated that, on numerous occasions, she informed Lucy that in order for
her to be reunited with her children, Lucy had to provide the Department with information
that she was going to be “clean and sober” and able to provide a safe, adequate, and drug-
free home.
Laslie stated that Lucy visited her children on either July 18 or 19, 2006. However,
because of her failed drug tests, Lucy did not see the children again until December 2006.
In December 2006, Lucy went to Perpetual Help Home, which is a home for recovering
drug abusers. Lucy attended Alcoholics Anonymous (“A.A.”) and Narcotics Anonymous
(“N.A.”) meetings while residing at Perpetual Help Home. Laslie testified that at that time,
Lucy was in therapy and began testing negative for drugs. Lucy was also employed at
Burger King. Laslie testified at trial that as of December 2006, she believed that Lucy was
complying with the service plan. At that time, Laslie recommended reunification with the
children. At a hearing on February 8, 2007, Laslie informed the trial court that Lucy was
complying with the service plan.
Lucy, however, did not stay at Perpetual Help Home, and she began testing positive
for drugs. Laslie testified that in February of 2007, the Perpetual Help Home staff had
concerns about Lucy’s attitude, and Lucy chose to leave and return to Cuero, her home
9
town. There, she was employed at Whataburger and was residing with a relative. As
noted above, on February 28, 2007, Lucy tested positive for marijuana.
Laslie observed Lucy’s visits with her children, and she opined that Lucy had a bond
with C.C. and with D.W., Jr. Both C.C. and D.W., Jr., told Laslie that they looked forward
to visits with their mother. They often asked about Lucy and when they would be able to
see her. Laslie testified that the children were “saddened” when they were unable to visit
Lucy. Laslie stated that C.C. expressed a desire to return to live with Lucy. He was
excited when Lucy was complying with the service plan and believed he could go home.
Laslie also stated that when she observed Lucy with A.W., Lucy would take care of the
child and “do things that a mother would do with the child.” She also stated that Lucy
would bring gifts for the children, such as food that the children had requested.
4. Lucy’s conduct from March 2007 through July 2007
Wright testified that while she served as Lucy’s caseworker, she conducted random
drug tests on Lucy. She stated that Lucy had four “dirty” drug tests and one “not dirty” test,
as follows:
• on March 12, 2007, Lucy tested positive for cocaine;
• on March 19, 2007, Lucy tested negative for drugs;
• on April 3, 2007, Lucy tested positive for marijuana;
• on April 27, 2007, Lucy tested positive for marijuana; and
• on May 29, 2007, Lucy tested positive for marijuana.
Wright testified that although Lucy was entitled to visit her children twice a month
10
if she passed her drug tests, from February 200715 through the date of trial, Lucy only had
three visits with her children because of her positive drug tests. Wright testified that Lucy
visited the children on February 28, 2007, but did not explain why Lucy was allowed to visit
given the positive drug test. On May 9, 2007, Lucy was allowed to visit the children even
though a test taken on April 27, 2007, was positive for marijuana. Wright explained that
a caseworker in Cuero performed the drug test but had a family emergency, and the test
results were not available before the scheduled visit. The Department allowed the visit
without having the test results, which ultimately came back positive for marijuana.
Wright testified that Lucy was also allowed to visit C.C. on June 6, 2007, even
though she tested positive for marijuana, because it was C.C.’s birthday. Wright stated
that C.C. was really looking forward to seeing Lucy. She explained that on a prior
occasion, when Lucy was unable to visit due to a positive drug test, C.C. reacted so
negatively that it caused his foster mother to ask to have C.C. moved. Wright said that the
Department allowed Lucy to visit on C.C.’s birthday, despite the positive drug test, because
“we just thought it would be really disappointing to [C.C.] and create a bunch of behaviors
for him[,] and we thought it was in the best interest of the child to allow her that visit.”
Wright stated that when she first became Lucy’s caseworker, Lucy provided her with
two slips of paper indicating she had attended two N.A. and A.A. meetings. Although Lucy
told Wright she was continuing to attend N.A. and A.A. classes, Wright never received any
written documentation of her attendance. Wright testified that during the time she served
as Lucy’s caseworker, Lucy did not provide any other evidence of steps she was taking to
15
W right testified that she was aware of the February 2007 visit because it occurred the day before
she officially becam e Lucy’s caseworker, and she attended the visitation.
11
address her substance abuse problem. Lucy, on the other hand, testified that she
attended A.A. meetings when she could, but she acknowledged that she was not able to
attend every week.
Wright opined that Lucy was not candid about her drug use, explaining that even
in the face of positive drug tests, Lucy would deny that she used drugs and provide
alternative explanations for how the drugs got into her system. Wright informed Lucy that
because of her positive drug tests, the unification process had been stopped until Lucy
could prove that she could provide a drug-free life for the children. Wright believed that
even though Lucy understood the gravity of her situation, Lucy was unable to overcome
her chemical dependency.
When asked about her drug use, Lucy testified that she had “slacked down” and that
she had not “had that many cocaine uses.” She admitted that she had a problem with
marijuana, but she again stated that she had “slacked down” and was “stopping it.” She
acknowledged the importance of maintaining a drug-free environment for the children, but
she claimed that if given another chance, she would prove that she could maintain a drug-
free lifestyle. On cross-examination, she admitted that she last used marijuana on July 4,
2007, just two weeks before trial. Lucy stated that she had not used cocaine since March
2007.
Wright testified that at the time of trial, Lucy was residing with her aunt in Cuero.
Wright stated that the home is suitable; however, because several other family members
also reside there, it would not be very structured and would not be a favorable place for the
children to reside. Lucy testified that at the time of trial, she was employed at a nursing
home in Cuero and living with her aunt, her uncle, and their daughter. She claimed that
12
she was looking to find her own home. She believed that she could maintain steady
employment and a place to live for her family.
Wright testified that she believed the children are adoptable. She did not believe,
however, that all three could reside in the same home because D.W., Jr., had mental
health issues. Specifically, D.W., Jr., had been diagnosed with bi-polar disorder, attention
deficit hyperactivity disorder, oppositional defiance disorder, and an anxiety disorder. His
behavior was aggressive.
Wright stated that, to her knowledge, Lucy was continuing to see a therapist.
Hoover confirmed that in March of 2007, Lucy began attending counseling again. She
testified that Lucy’s attitude had changed significantly since the sessions she attended in
2006, and Lucy was more positive. Hoover stated, however, that from March 2007 to the
time of the hearing, Lucy acknowledged that she periodically used drugs. Hoover testified
that Lucy was aware that her continued use of drugs jeopardized her ability to get her kids
back. Hoover opined that Lucy was making progress but needed further counseling.
Hoover testified that it is not healthy for a child to witness drug use in the home, and it can
affect their emotional well-being.
5. C.C.’s Testimony and CASA’s Recommendation
C.C. testified in the court’s chambers. C.C. testified that he had seen his mother
use drugs before. Nevertheless, C.C. testified that he missed Lucy and that he has
enjoyed his visits with her. He testified that he is living with a foster family and making
good grades in school.
Nicole Law, a Court Appointed Special Advocate (“CASA”), testified that she had
been appointed as a CASA advocate for the case on April 30, 2007. She testified that she
13
had read through the files in the case and had one visit with each of the children but had
not visited with Lucy. CASA’s recommendation was to terminate Lucy’s parental rights
because Lucy has continued her lifestyle of drug use.
C. The Termination Order
On July 18, 2007, the trial court terminated Lucy’s parental rights to all three
children, finding by clear and convincing evidence that Lucy
(1) “knowingly placed or knowingly allowed the children to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the children”;16
(2) “engaged in conduct or knowingly placed the children with persons
who engaged in conduct which endangers the physical or emotional
well-being of the children”;17
(3) “constructively abandoned the children who have been in the
permanent or temporary managing conservatorship of the
[Department] or an authorized agency for not less than six months
and:
[(a)] the Department or authorized agency has made reasonable
efforts to return the children to the mother;
[(b)] the mother has not regularly visited or maintained significant
contact with the children; and
[(c)] the mother has demonstrated an inability to provide the
children with a safe environment”;18
(4) “failed to comply with the provisions of a court order that specifically
established the actions necessary for the mother to obtain the return
of the children who have been in the permanent or temporary
managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the children's
16
T EX . F AM .C OD E A N N . § 161.001(1)(D) (Vernon 2008).
17
See id. § 161.001(1)(E).
18
See id. § 161.001(1)(N).
14
removal from the parent under Chapter 262 for the abuse or neglect
of the children;”19 and
(5) “used a controlled substance, as defined by Chapter 481, Health and
Safety Code, in a manner that endangered the health or safety of the
children, and
[(a)] failed to complete a court-ordered substance abuse treatment
program; or
[(b)] after completion of a court-ordered substance abuse treatment
program continued to abuse a controlled substance.”20
The court further found that termination was in the best interest of the children.21
Lucy filed a notice of appeal on August 27, 2007, and a notice of issues to be relied
upon on appeal on September 6, 2007.22 This appeal ensued.
II. PARENTAL MISCONDUCT
To terminate parental rights, a court must make two findings based on clear and
convincing evidence: (1) that the parent has committed one of the acts prohibited under
Texas Family Code section 161.001(1); and (2) that termination of the parent’s rights is in
the child’s best interest. See TEX . FAM . CODE ANN . § 161.001 (Vernon 2008); In re J.L, 163
S.W.3d 79, 84 (Tex. 2005); Liu v. Dep’t of Family & Protective Servs., 273 S.W.3d 785,
790 (Tex. App.–Houston [1st Dist.] 2008, no pet.).
19
See id. § 161.001(1)(O).
20
See id. § 161.001(1)(P).
21
See id. § 161.001(2).
22
See id. § 263.405(b)(2) (Vernon 2008) (requiring party to file statem ent of points on appeal with the
trial court not later than fifteen days after a final term ination order). The Departm ent also sought to term inate
the parental rights of the children’s fathers. The July 18, 2007 order term inated the parental rights of H.G. and
E.W ., the fathers of C.C. and A.W ., respectively. However, it did not term inate the parental rights of B.S., who
is D.W ., Jr.’s father. The trial court severed the term ination suit against B.S. on August 23, 2007, m aking the
July 18 order final. Thus, the statem ent of points on appeal was tim ely. Neither H.G. nor E.W . have appealed
the term ination of their parental rights.
15
As described above, the trial court found five statutory grounds for termination. On
appeal, however, Lucy challenges only three of the statutory grounds relied upon by the
trial court to terminate her rights. Specifically, by her second issue, Lucy argues that the
trial court erred in terminating her parental rights based on her drug use without evidence
showing that the drug use injured the children. See TEX . FAM . CODE ANN . § 161.001(1)(P).
By her fourth and fifth issues, Lucy argues that the trial court erroneously conditioned her
ability to visit her children while in the Department’s custody upon a “clean” drug test
because the condition was not in the children’s best interest, and her parental rights should
not have been terminated based on her failure to visit the children given that she was
judicially prevented from visiting when she failed her drug tests. See id. § 161.001(1)(N).
By her third issue, Lucy argues that the evidence does not support the trial court’s finding
that the Department made reasonable efforts to return the children to her custody. This
argument is only relevant to the trial court’s termination of her rights based on subsections
(1)(N) and (1)(O) of section 161.001. See id. § 161.001(1)(N), (O).
Because “[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. 2003), the unchallenged
findings that Lucy committed acts prohibited by section 161.001(1)(D) and (E) are sufficient
to support the judgment. See Perez v. Tex. Dep’t of Protective & Regulatory Servs., 148
S.W.3d 427, 434 (Tex. App.–El Paso 2004, no pet.); In re L.M., 104 S.W.3d 642, 647 (Tex.
App.–Houston [1st Dist.] 2003, no pet.). Accordingly, we overrule Lucy’s second, third,
fourth, and fifth issues, and we need only address the best interest findings. See In re
16
L.M., 104 S.W.3d at 647; TEX . R. APP. P. 47.1.
III. BEST INTEREST
By her first issue, Lucy argues that the evidence supporting the trial court’s best
interest finding is factually insufficient to support the judgment. In a termination case, due
process requires the Department to prove, by clear and convincing evidence, that
termination is in the child’s best interest. See In re B.L.D. & B.R.D., 113 S.W.3d 340, 353-
54 (Tex. 2003); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). The “clear and convincing”
standard of proof requires “that 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 2008); see In re C.H., 89 S.W.3d
17, 23 (Tex. 2002).
In In re C.H., the Texas Supreme Court held that the “clear and convincing” burden
of proof affects the manner in which a court of appeals reviews the evidence for factual
sufficiency. 89 S.W.3d at 25. The court explained:
Under traditional factual sufficiency standards, a court determines if a finding
is so against the great weight and preponderance of the evidence that it is
manifestly unjust, shocks the conscience, or clearly demonstrates bias. But
that standard is inadequate when evidence is more than a preponderance
(more likely than not) but is not clear and convincing. As a matter of logic, a
finding that must be based on clear and convincing evidence cannot be
viewed on appeal the same as one that may be sustained on a mere
preponderance.
Id. (citations omitted). Because the best interest finding must be based on clear and
convincing evidence, we must determine “whether the evidence is such that a factfinder
could reasonably form a firm belief or conviction about the truth of the State’s allegations.”
Id. We must be mindful to respect the role of the factfinder when reviewing termination
17
orders. Id. Although parental rights are of constitutional dimension, “they are not
absolute.” Id. at 26.
When determining whether termination is in a child’s best interest, courts consider
several factors, 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 to promote the best interest of the child; (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 which
may indicate that the existing parent-child relationship is not a proper one; and (9) any
excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367,
371-72 (Tex. 1976).23
The supreme court has explained that the Holley factors are not exhaustive and that
not all the factors must be proved before termination is proper. See In re C.H., 89 S.W.3d
at 27. “The absence of evidence about some of these considerations would not preclude
a factfinder from reasonably forming a strong conviction or belief that termination is in the
child’s best interest, particularly if the evidence were undisputed that the parental
relationship endangered the safety of the child.” Id. However, the court recognized that
in cases with complex facts, “paltry evidence relevant to each consideration mentioned in
23
Courts have traditionally relied on the Holley factors to guide this analysis. See Holley v. Adams,
544 S.W .2d 367, 371-72 (Tex. 1976). Additionally, Texas Fam ily Code section 263.307 provides an extensive
list of factors that m ay be considered in determ ining the child’s best interest. See T E X . F A M . C O D E A N N . §
263.307 (Vernon 2008). Except to the extent that the factors listed in this section overlap with the Holley
factors, Lucy does not rely on this statute as a basis for reversing the judgm ent. Accordingly, we will review
her argum ents under the Holley factors.
18
Holley would not suffice to uphold the jury’s finding that termination is required.” Id.
Lucy first argues that the best interest finding must have a firm basis in facts
separate and apart from the parent’s wrongful conduct. Specifically, Lucy argues that even
if the evidence supports a finding that a parent’s conduct violated section 161.001(a) of the
family code, a best interest finding should be reversed on appeal if the evidence shows
that the abusive or neglectful parent has changed in a material way. Essentially, Lucy asks
this Court to ignore the evidence of her wrongful conduct that led to the removal of her
children and the wrongful conduct she continued after their removal, and she urges the
Court to consider only the progress she made after the removal. We disagree that the
analysis is as simple as Lucy suggests.
The supreme court has held that “[w]hile it is true that proof of acts or omissions
under section 161.001(1) does not relieve the petitioner from proving the best interest of
the child, the same evidence may be probative of both issues.” Id. Lucy relies on In re
W.C., 98 S.W.3d 753, 758 (Tex. App.–Fort Worth 2003, no pet.), to argue that the statutory
grounds for removal and termination should not be considered. In re W.C., however, does
not stand for the proposition that courts can never consider the parent’s wrongful behavior
when determining the best interest of the children:
A fact finder is not required to consider all of the listed factors and may
reasonably form a strong belief or conviction regarding the interest of the
child in the absence of evidence about some of these factors, particularly if
the evidence were undisputed that the parental relationship endangered the
child’s safety. Quite often, the best interest of the child is infused with the
statutory offensive behavior. While there are instances where the offending
behavior will demand termination of parental rights, there are also those
cases where the best interest determination must have a firm basis in facts
standing apart from the offending behavior.
19
W.C., 98 S.W.3d at 758 (citations omitted) (emphasis added).
In fact, the Holley factors expressly suggest consideration of: (1) the emotional and
physical danger to the child now and in the future, and (2) the acts or omissions of the
parent which may indicate that the existing parent-child relationship is not a proper one.
See Holley, 544 S.W.2d at 371-72. We hold that, particularly when the evidence shows
that the parental relationship endangered the child’s physical or emotional well-being,
evidence of the parental misconduct leading to the removal and subsequent termination
should be considered when reviewing the best interest of the child. See In re C.H., 89
S.W.3d at 28 (holding that the court of appeals should have considered father’s “pattern
of conduct that is inimical to the very idea of child-rearing,” including his “extensive criminal
history involving drugs and assaults” which continued unabated after C.H.’s birth).
Specifically, cases that involve endangering drug abuse are not the types of cases
where the parent’s wrongful conduct should be ignored. See Toliver v. Tex. Dep’t of Family
& Protective Servs., 217 S.W.3d 85, 101-02 (Tex. App.–Houston [1st Dist.] 2006, no pet.);
In re L.M., 104 S.W.3d 642, 648 (Tex. App.–Houston [1st Dist.] 2002, no pet.). Evidence
of a parent’s unstable lifestyle can support the conclusion that termination is in the child’s
best interest. In re M.R., 243 S.W.3d 807, 821 (Tex. App.–Fort Worth 2007, no pet.). In
particular, a parent’s drug use and failure to comply with a family service plan support a
finding that termination is in the best interest of the child. Id.
Although Lucy argues that there is no evidence that her drug use endangered her
children, we disagree. Lucy admitted to using drugs during her pregnancy with A.W., and
A.W. was born with cocaine and marijuana in her system. Drug use during pregnancy
20
undoubtedly exposes a child to injury. See In re H.R., 87 S.W.3d 691, 699 (Tex. App.–San
Antonio 2002, no pet.). Additionally, the evidence showed that Lucy was a habitual drug
user and used drugs in front of C.C. and D.W., Jr. A prior investigation in 2005 revealed
that Lucy was using drugs in the home on a daily basis, and that drugs were left on the
table and on the floor—clearly within the children’s reach. Leaving drugs within reach of
a child certainly endangers the child. Id.
Nevertheless, even considering her past failures, Lucy argues that the evidence
showed that she was complying with the Department’s service plan and had demonstrated
a clear departure from her past failures. Lucy argues that this Court should give deference
to this evidence, given the important public policy favoring reunification of the family. See
Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re D.T., 34 S.W.3d 625, 641 (Tex.
App.–Fort Worth 2000, pet. denied). While we agree that a presumption exists that
reunification is in the child’s best interest, we disagree that evidence of a turnaround will
always offset other evidence favoring termination. See In re J.W.M., 153 S.W.3d 541, 550
(Tex. App.–Amarillo 2004, no pet.) (noting rehabilitation was not “free from doubt”); Smith
v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 673, 681 (Tex. App.–Austin
2003, no pet.) (“[I]n considering the best interest of the child, evidence of a recent turn-
around in behavior by the parent does not totally offset evidence of a pattern of instability
and harmful behavior in the past.”).
The significance of a personal turnaround depends to some degree on what
the turnaround is from. Termination may no longer be in the best interest of
a child whose parent had a mental disorder that has been cured, or who
made a single misjudgment. But such cases are hardly comparable to a
parent struggling to escape . . . life-long addictions and abusive
relationships . . . .
21
In re M.G.D., 108 S.W.3d 508, 513 (Tex. App.–Houston [14th Dist.] 2003, pet. denied)
(holding that a factfinder is “not required to ignore a long history of dependency and
abusive behavior merely because it abates as trial approaches”).
More importantly, however, the record does not support Lucy’s characterization of
her alleged “turnaround,” which was by no means complete. Even though the service plan
required Lucy to stop using drugs, and Lucy was aware that her drug use could result in
the termination of her parental rights, she continued to fail drug tests during the time the
children were in the Department’s custody. Lucy’s final hearing was scheduled for July 18,
yet she failed a drug test on May 29. She admitted that she had last smoked marijuana
on July 4, 2007, only two weeks before the trial date. In re S.K.A., 236 S.W.3d 875, 901
(Tex. App.–Texarkana 2007, pet. denied) (“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.”); J.W.M., 153 S.W.3d at 549 (noting that a mother’s
rehabilitation was not free from doubt where, shortly before trial, drug test indicated
methamphetamine use).
At trial, Lucy did not deny that she continued to use drugs but claimed that she had
“slacked down.” Furthermore, Lucy never attended an outpatient drug treatment program
even though the service plan required her to comply with any recommendations made
pursuant to the drug assessment. While we agree that the evidence showed that Lucy was
attending therapy and had complied with several aspects of the service plan, the
undisputed evidence showed that she had failed to alleviate the main concern underlying
the children’s removal from the home—her persistent drug use. See M.R., 243 S.W.3d at
22
821; L.M., 104 S.W.3d at 648.
Lucy next argues that there was no testimony of several of the Holley factors,
including that there was no evidence demonstrating the emotional and physical needs of
the children now and in the future, the parental abilities of the individuals seeking custody,
the programs available to assist these individuals to promote the best interest of the child,
or the stability of the home or the proposed placement. Lucy points to evidence that (1)
D.W., Jr., was likely not adoptable, and C.C.’s foster mother had asked for C.C. to be
moved; (2) C.C. was disappointed when he could not visit with her, and D.W., Jr.’s
emotional problems were likely the result of his removal from Lucy’s home; (3) C.C.
expressed his desire to return home with her; and (4) the children never suffered any ill
effects when Lucy visited the children after she failed a drug test. We disagree that these
arguments, individually or when considered together, require a finding that the evidence
is factually insufficient to support the best interest finding.
First, the testimony indicated that D.W., Jr., would have problems being adopted
because he suffered from several behavioral disorders. Additionally, at one time, C.C.’s
foster mother requested that he be moved to another home when he acted out after one
of Lucy’s missed visitations. This testimony does not undermine the best interest finding.
As the supreme court explained:
[T]he Family Code provides that a court may appoint the Department as a
child’s managing conservator upon termination. Evidence about placement
plans and adoption are, of course, relevant to best interest. However, the
lack of evidence about definitive plans for permanent placement and
adoption cannot be the dispositive factor; otherwise, determinations
regarding best interest would regularly be subject to reversal on the sole
ground that an adoptive family has yet to be located. Instead, the inquiry is
whether, on the entire record, a factfinder could reasonably form a firm
conviction or belief that termination of the parent’s rights would be in the
23
child’s best interest—even if the agency is unable to identify with precision
the child’s future home environment.
In re C.H., 89 S.W.3d at 28. Thus, we conclude this evidence does not offset the
significant evidence of Lucy’s inability to maintain a drug-free lifestyle.
Second, Lucy argues that the evidence required a finding that the children’s
emotional well being would be better served if they returned home. Specifically, she claims
that D.W., Jr.’s emotional problems were likely the result of his removal from Lucy’s home
and that C.C. was disappointed when he could not visit with her. We disagree. The
evidence presented at trial did not indicate when D.W., Jr., began to suffer from his
emotional problems. Lucy argues that because there was no evidence that D.W., Jr.,
suffered these emotional problems before the removal, we must infer that the problems
were the result of the removal. Lucy has not cited any authority for requiring this inference
from the evidence or supporting the proposition that such an inference would be strong
enough to undermine the best interest finding. See TEX . R. APP. P. 38.1(i). Regardless of
when the emotional problems surfaced, Lucy did not demonstrate any present ability to
provide D.W., Jr., with the treatment that he needs for these problems, which undermines
her arguments.
Moreover, C.C.’s disappointment when Lucy failed to visit is not a factor that
undermines the best interest finding—rather, it supports the best interest finding. Lucy was
unable to visit because she failed to comply with the trial court’s order that she pass a drug
test before each visit. Lucy chose to continue using drugs, and her choices—not the trial
court’s order—caused emotional harm to C.C.
24
Furthermore, the fact that the children did not exhibit any specific adverse reactions
to seeing Lucy on the occasions where she had failed a drug test immediately prior to the
visit, but instead enjoyed the visits and wanted to return home with her, does not
undermine the best interest finding. Evidence of C.C.’s desire to return home likewise
does not undermine the best interest finding. “[W]hat the children want . . . is not always
in their best interests.” Phillips v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d
348, 356 (Tex. App.–Austin 2000, no pet.). Even though the children may love their
mother and want to be with her, reunification is not necessarily in their best interest. Id.
We conclude that the evidence was factually sufficient to support the best interest finding
in this case. We overrule Lucy’s first issue.
IV. CONCLUSION
Having overruled all of Lucy’s issues, we affirm the trial court’s judgment terminating
Lucy’s parental rights to C.C., D.W., Jr., and A.W.
________________________________
GINA M. BENAVIDES,
Justice
Memorandum Opinion delivered and
filed this the 2nd day of April, 2009.
25