Affirmed and Memorandum Opinion filed May 17, 2012.
In The
Fourteenth Court of Appeals
NO. 14-12-00103-CV
IN THE INTEREST OF M.C.H. AKA B.G.H.
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2011-01153J
MEMORANDUM OPINION
In this appeal from the termination of her parental rights, Kena H. challenges the
sufficiency of the evidence to support termination under section 161.001(2) of the Texas
Family Code. Specifically, Kena asserts that the evidence is legally and factually
insufficient to support a finding that termination of her parental rights is in the child’s
best interest.
BACKGROUND
At the termination hearing held on January 4, 2012, Kena testified that she has
three other children from previous relationships, none of whom resides in Texas. Her
two daughters live with their father. Her son lives with her sister because Kena tested
positive for cocaine during her pregnancy. None of her family lives in the Houston area.
Kena has had no physical contact with these children, but has spoken on the phone with
them. She further stated that she recently has begun providing some financial support for
her three older children with the assistance of her boyfriend, Wilbur. Kena admitted that
Wilbur has a criminal history, including convictions for robbery and assault, and that he
is in recovery from drug abuse.
Kena acknowledged that she has had a drug problem for nine to ten years. She
stated that the last time she held a job—working in a fast food restaurant—was eight to
nine years ago. She explained that she had supported herself over the last eight to nine
years by having ―lots of help‖ and through prostitution. The Texas Department of Family
& Protective Services (the ―Department‖) introduced into evidence Kena’s multiple
convictions for possession of a controlled substance and prostitution.
Kena admitted that she used cocaine during her pregnancy. In February 2011, she
gave birth to a cocaine-positive child, M.C.H., who was placed in the temporary custody
of the Department on February 14, 2011. Kena testified that the Department provided her
with a family service plan. She stated she successfully completed parenting classes,
completed a drug and alcohol assessment, and was admitted to a rehabilitation facility for
her addiction issues shortly after M.C.H. was born. Kena completed her rehabilitation
services, but relapsed in October 2011. She acknowledged that her drug abuse during her
pregnancy and her subsequent relapse constituted conduct harmful to her child.
After her relapse, Kena re-entered a rehabilitation center.1 She testified that the
rehabilitation center performs random drug testing and that she has been drug-free since
her relapse. She stated that she has been undergoing counseling at the center and
expected to complete her on-site treatment shortly. She explained that she planned to
move into Star of Hope once she completed her treatment, although she had no
confirmation from Star of Hope that it had space available for her. According to Kena,
she expected that M.C.H. would be permitted to live with her at the treatment center and
1
Kena initially re-entered the same rehabilitation center as she had been in before, but was
expelled from that center for getting into a fight with another patient.
2
then move with her to Star of Hope. Kena testified that she had been advised that at Star
of Hope she would receive job training. In the meantime, until she was able to obtain
employment, Kena testified that Star of Hope and Wilbur would provide for her and
M.C.H. She stated that she could stay at Star of Hope for up to eighteen months.
Child Advocate Terrence Gee testified that he had visited with M.C.H. in her
current placement. He stated that M.C.H. had been placed with foster parents who are
meeting all of her physical and emotional needs. According to Gee, M.C.H. appeared
happy, adjusted to her foster family, and bonded with her foster parents. He further
testified that the foster family would like to adopt M.C.H. Gee explained that Child
Advocates first gathered information to determine if it would be in M.C.H.’s best interest
to be reunified with Kena. However, by the time of the trial, Child Advocates believed
that Kena’s parental rights should be terminated because she had not completed all
aspects of her parenting plan, including finding a stable home and employment to meet
M.C.H.’s needs. Gee testified that Child Advocates was very concerned because of
Kena’s lengthy history of drug abuse and her relapse during the pendency of the case.
Gee stated that he investigated the availability of Kena’s relatives to care for
M.C.H. He explained that Kena had no family in the Houston area, but had family in
New Jersey. In particular, Gee stated that Kena’s uncle and his wife cared for Kena and
wanted to help her, but her uncle stated that he could help Kena only in the short term
and could not take M.C.H. long term.
M.C.H.’s foster mother testified regarding how M.C.H. was progressing in foster
care. She stated that M.C.H. had been in her home for almost eleven months. She
explained that, when M.C.H. was first placed in her home, she had some mild withdrawal
symptoms from the cocaine in her system, but was ―doing great‖ now. She stated that
M.C.H. suffered no delays and had no special needs. Finally, she testified that she and
her husband, who have no other children, would like to adopt M.C.H.
The Department’s caseworker, Denise Reyes, testified that family reunification
was considered at the beginning of this case. She stated that the goal changed when Kena
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relapsed and got into a fight with a patient when she returned to rehab. Reyes explained
that the Department had identified M.C.H.’s foster parents as potential adoptive parents
who could provide M.C.H. with a safe, stable, and loving home. Reyes testified that the
Department sought termination of Kena’s parental rights because she had not completed
the services on the service plan, particularly because she had engaged in criminal activity.
Further, Reyes testified that Kena attempted to obtain food stamps under M.C.H.’s name,
which was illegal. Kena disputed this testimony, however. Reyes stated that Kena’s lack
of stable housing or employment meant that she was not prepared to support M.C.H.
Reyes also expressed concern about Kena’s relationship with Wilbur because of his
criminal history, including incarceration for theft, robbery, and possession of a controlled
substance. Reyes did not believe Wilbur would be a positive influence on M.C.H.
Rachel Solomon, a program manager at the second rehabilitation facility where
Kena was enrolled at the time of trial, testified. Solomon stated that she had known Kena
for about three months. She confirmed Kena’s testimony that Kena had been sober
during her time at the rehabilitation facility. She also testified that the facility would
assist Kena in attempting to find transitional living at Star of Hope. She could not
guarantee that Star of Hope would have room for Kena but testified that she believed
Kena’s chances were ―pretty good‖ of getting placed there when she finished treatment.
She also testified that it is fairly common for relapses to occur during recovery, but she
believed that Kena was a good candidate for recovery based on Kena’s progress. She
also testified that she believed it would help Kena’s recovery if the court did not
terminate her parental rights.
Solomon was aware of Kena’s lengthy history of drug abuse and criminal
convictions. She testified that Kena needed at least another seven or eight months to
fully recover. She stated that leaving M.C.H. ―in limbo‖ for this time would be difficult
for M.C.H., but disagreed that it would not be in M.C.H.’s best interests to have her life
put on hold while Kena attempted to recover from her drug addiction.
4
At the close of evidence, the trial court terminated Kena’s parental rights and
named the Department M.C.H.’s permanent managing conservator. It signed the
termination order on January 18, 2012. This appeal timely followed.
ANALYSIS
A. Standard of Review
Parental rights can be terminated only upon proof by clear and convincing
evidence that (1) the parent has committed an act prohibited by section 161.001(1) of the
Texas Family Code and (2) termination is in the best interest of the child. Tex. Fam.
Code § 161.001(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). Clear and
convincing evidence is ―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 § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
In conducting a legal-sufficiency review in a parental termination case, a
reviewing court looks 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. In re J.P.B., 180 S.W.3d 570, 573–74 (Tex. 2005). In
reviewing termination findings for factual sufficiency, courts must give due deference to
the fact-finder’s resolution of factual questions. In re C.H., 89 S.W.3d 17, 27 (Tex.
2002). The court then determines whether the evidence is such that a fact-finder could
reasonably form a firm belief or conviction about the truth of the allegations against the
parents. Id. at 25.
B. Application
Kena H. does not challenge the trial court’s finding that she has committed an act
prohibited by section 161.001(1). Tex. Fam. Code § 161.001(1). Rather, she only
challenges the trial court’s finding that termination is in the child’s best interest. Id.
§ 161.001(2). Thus we focus our analysis on this issue only.
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The determination of a child’s best interest does not require proof of any unique
set of factors, nor does it limit proof to any specific factors. See Holley v. Adams, 544
S.W.2d 367, 371–72 (Tex. 1976). In reviewing the sufficiency of the evidence to support
a best-interest finding, courts may consider (1) the desires of the child, (2) the present and
future physical and emotional needs of the child, (3) the present and future emotional and
physical danger to the child, (4) the parental abilities of the persons seeking custody in
promoting the best interest of the child, (5) the programs available to assist these
individuals to promote the best interest of the child, (6) the plans for the child by the
individuals or agency seeking custody, (7) the stability of the home or proposed
placement, (8) acts or omissions of the parent which may indicate the existing parent-
child relationship is not appropriate, and (9) any excuse for the parent’s acts or omissions.
Id. at 371–72. Although there is a strong presumption that it is in the child’s best interest
to allow the natural parent to retain custody, when confronted with evidence to the
contrary, that presumption disappears. In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.—
San Antonio 2003, no pet.). Evidence proving one or more of the statutory grounds for
termination may be probative in determining that termination is in the best interest of the
child. In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied). With these considerations in mind, we review the evidence below.
First, we note that M.C.H. is an infant and thus is too young to express her desires.
However, Child Advocate Gee testified that M.C.H. appeared to be happy and bonded
with her foster family. Kena has not cared for M.C.H. since M.C.H.’s birth; thus, there is
no evidence that Kena has developed an emotional bond with M.C.H. As to M.C.H.’s
present and future physical and emotional needs, Kena admitted she did not have a stable
home or employment and would be relying on the assistance of others to provide for
M.C.H. The last time Kena held a job was eight to nine years ago. She has been
supporting herself since then by prostitution and assistance from others. Kena admitted
that she had lacked regular income and stability for many years. Her plans to stay at Star
of Hope were, at most, for a period of eighteen months. Additionally, she had no
6
confirmation from Star of Hope that she would be accepted there. In effect, her ―plans‖
were hopes and desires without any evidence that these hopes and desires would come to
fruition. Although we applaud Kena’s efforts to turn her life around, a parent without
stability, income, or a home is unable to provide for a child’s physical and emotional
needs. See In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.)
(determining evidence was sufficient to support best-interest finding when mother
admitted being unable to care for child and having no stable source of income or
permanent home). On the other hand, as discussed above, the foster parents are
providing a stable and appropriate home for M.C.H. and are interested in adopting her,
providing her the permanence that she needs. Indeed, the need for permanence is
paramount in considering a child’s present and future needs;2 Kena’s aspirations, while
laudable, are no evidence that she is able to provide permanency for M.C.H. now and in
the future. We conclude that these factors weigh heavily in support of the trial court’s
finding that termination is in M.C.H.’s best interests.
As to Kena’s parental abilities, she has three children from previous relationships
with whom she has admittedly failed to establish a parental relationship. In fact, she
admitted that not only had she used cocaine while pregnant with M.C.H., but she had also
used cocaine during a previous pregnancy. Kena’s history of drug abuse and prostitution
has placed the safety and stability of Kena’s children at risk. See D.O.H. v. Tex. Dep’t of
Family & Protective Servs., No. 14-10-00725-CV, 2011 WL 3684568, at *5 (Tex.
App.—Houston [14th Dist.] Aug. 23, 2011, no pet.) (mem. op.). We see no evidence that
Kena has developed the skills necessary to appropriately parent M.C.H. and promote
M.C.H.’s best interests. The lack of evidence of Kena’s parental abilities weighs heavily
in favor of the trial court’s finding that termination of her parental rights is in M.C.H.’s
best interests.
2
In re S.J., 14-07-00785-CV, 2009 WL 442485, at *7 (Tex. App.—Houston [14th Dist.] Feb. 24,
2009, no pet.) (mem. op.) (citing Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81,
87 (Tex. App.—Dallas 1995, no writ)).
7
Kena’s relapse during the pendency of this case is also troubling. This relapse
occurred after she had been offered therapy, inpatient treatment, and other services under
a court-ordered plan for reunification. Although she immediately returned to
rehabilitation, she got into a fight with another patient and had to move to a different
program. Solomon, one of the directors of the program in which Kena was enrolled,
testified that termination of Kena’s parental rights would not be good for Kena’s
recovery, but that is not the issue before the court. Rather, the issue before the court is
the best interest of M.C.H.
In sum, we commend Kena’s efforts to recover from her lengthy addiction to
drugs. She is taking the right steps and has made improvement, and we wish her well in
her recovery efforts. However, her history of drug abuse and prostitution, as well as her
relapse during the pendency of this suit, coupled with her lack of stable housing, income,
and anything beyond aspirations for where she and M.C.H. could reside and what
employment she could undertake, support the trial court’s finding that termination is in
M.C.H.’s best interests. Further, her demonstrated lack of parenting ability with her other
three children supports the trial court’s finding. M.C.H. is in a stable foster home in
which the foster parents want to adopt her. She has bonded with her foster family and
appears to be happy and well-supported in that environment. This factor also supports
the trial court’s best-interest finding. Although termination of Kena’s parental rights may
not be in Kena’s best interests, the trial court had legally and factually sufficient evidence
before it to determine that termination of Kena’s parental rights was in M.C.H.’s best
interests. Accordingly, we overrule Kena’s sole issue on appeal.
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CONCLUSION
Having overruled Kena’s issue on appeal, we affirm the trial court’s order
terminating her parental rights.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Boyce.
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in the Interest of M.C.H. AKA B.G.H.
Combined Opinion