in the Interest of Z.H., a Child

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-14-00191-CV

IN THE INTEREST OF S.R., A CHILD

07-14-00192-CV

IN THE INTEREST OF Z.C., A CHILD

07-14-00215-CV

IN THE INTEREST OF Z.H., A CHILD

On Appeal from the 108th District Court
Potter County, Texas
Trial Court Nos. 83,645-E, 83,829-E, 83,659-E,
Honorable Douglas Woodburn, Presiding

October 6, 2014

MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

In this accelerated appeal, Natasha contests the trial court’s termination of her

parental rights to her children, S.R., Z.C., and Z.H. Natasha contests the legal and

factual sufficiency of the evidence to support the trial court’s order for termination as to
any of the predicate events pleaded by the Texas Department of Family and Protective

Services. See TEX. FAMILY CODE ANN. § 161.001(1) (West 2014).1 The trial court

terminated Natasha’s parental rights to S.R. and Z.H. under section 161.001(1)(D), (E),

(N), and (O). See § 161.001(1)(D), (E), (N), & (O). The trial court terminated Natasha’s

rights to Z.C. under section 161.001(1)(E), (N), and (O). See § 161.001(1)(E), (N), &

(O). Further, Natasha contests the legal and factual sufficiency of the evidence to

support the trial court’s determination that termination of her parental rights as to each

child was in that child’s best interest. See § 161.001(2). We will affirm the trial court’s

judgment.

Factual and Procedural Background

The Department began its involvement with Natasha on March 11, 2013, when it

removed her eleven-year-old daughter, S.R., from her care as a result of an incident

involving a physical altercation between S.R. and Natasha. S.R. told investigators that

Natasha punched her in the face. Natasha contended that S.R. suffered a bloody nose

when Natasha attempted to hold S.R. down on the ground. As a result of the incident,

law enforcement attempted to place S.R. in a psychiatric hospital, the Pavillion.

However, Natasha refused to admit S.R. to the facility. Further, at that time, Natasha

stated that she was not willing to take care of S.R.

Shortly after the incident with S.R., on March 13, 2013, Natasha was observed

choking Z.H. and swinging her around by the neck. At the time of this incident, Z.H.

1
Further reference to the Texas Family Code will be by reference to “§ ____” or “section ____.”

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was fifteen months old. After law enforcement got Z.H. away from her, Natasha was

placed in the Pavillion and Z.H. was taken into protective custody by the Department.

Z.C. was born in an ambulance on the way to the hospital. Shortly thereafter, on

April 29, 2013, the Department took custody of Z.C. According to the record, Natasha

did not receive any prenatal care during her pregnancy with Z.C. and, subsequently, left

the hospital without giving the child a name.

After the suits to terminate her parental rights were filed, Natasha had no contact

with the children. The record reflects that she never exercised any visitation nor did she

contact the Department in an effort to establish any visitation with the children. The

record before this Court establishes that the Department had a family service plan in

effect for each of the children. Testimony at trial established that Natasha’s former

caseworker attempted to visit with Natasha about the family service plan while Natasha

was incarcerated in the Potter County Jail, however; Natasha refused to meet with or

see the caseworker.

Further, since the filing of the suits to terminate her parental rights, Natasha has

been incarcerated on one occasion, received residential treatment for a mental illness at

the Pavillion, and was placed in the state psychiatric hospital due to her behavior while

incarcerated at the Potter County Jail. When directly questioned about Natasha’s

mental capabilities to take care of the children, the caseworker, Kimberly Soliz, stated

that she did not think Natasha was mentally capable to take care of the children.

Regarding the effort the Department made to work services with Natasha, Soliz testified

as to all the attempts that had been made to contact her since her release from the

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state hospital. Despite the efforts of the Department, Soliz had never been able to

contact or locate Natasha. Prior to the hearing beginning, Natasha’s appointed counsel

listed all of the steps he had taken in an effort to contact Natasha. Like the Department,

all efforts were unsuccessful.

Two of the children, Z.H. and Z.C., are currently in foster care together. The

testimony reflects that they have bonded with their foster parents, are happy, and that

their individual conditions have markedly improved since they were placed in foster

care. Soliz testified that the foster parents are interested in adopting Z.H. and Z.C.

S.R. is currently in a residential treatment facility receiving treatment for mental

health and behavioral issues. S.R. has not really improved according to the testimony

of Soliz. The long-term plans for S.R. are to relocate her to a more appropriate

residential treatment facility with the goal of making a fictive kin placement.

Soliz testified that, after reviewing the files for all of the children, it was her

opinion that termination of Natasha’s parental rights was in the best interest of each

child. To support her conclusion, Soliz cited the court to the following: 1) in the year

since termination, Natasha has completed no services; 2) Natasha has failed to even

request visitation with the children during the entire period of the pendency of the cases;

3) Natasha has failed to maintain contact with the Department; and 4) the children need

to move forward with a goal toward a permanent placement.

At the conclusion of the testimony, the trial court ordered the parental rights of

Natasha terminated as to each child. As pertains to S.R. and Z.H., the trial court

terminated Natasha’s parental rights pursuant to subsections (D), (E), (N), and (O) of

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section 161.001(1). See § 161.001(1)(D), (E), (N), & (O). As to Z.C., the trial court

terminated Natasha’s parental rights pursuant to subsections (E), (N), and (O) of section

161.001(1). See § 161.001(1)(E), (N), & (O).

Natasha has perfected her appeal and, through multiple issues, attacks the legal

and factual sufficiency of the evidence to support the finding of the trial court that

Natasha committed a predicate event that would support termination of her parental

rights. Further, Natasha contends that the evidence is legally and factually insufficient

to support the trial court’s finding that termination of Natasha’s parental rights was in the

best interest of each child. Disagreeing with Natasha, we will affirm the judgment of the

trial court.

Standard of Review

The natural right existing between parents and their children is of constitutional

dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,

455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A decree terminating

this natural right is complete, final, irrevocable, and divests for all time that natural right

as well as all legal rights, privileges, duties, and powers between the parent and child

except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical

interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002).

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 The Texas Family Code permits a court to terminate the parent-child relationship

if the petitioner establishes both: (1) one or more acts or omissions enumerated under

section 161.001(1); and (2) that termination of the parent-child relationship is in the best

interest of the child. § 161.001. Though evidence may be relevant to both elements,

each element must be proved, and proof of one does not relieve the burden of proving

the other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground and best

interest of the child must be proved, only one statutory ground is required to terminate

parental rights under section 161.001. See In re A.V., 113 S.W.3d 355, 362 (Tex.

2003). Therefore, we will affirm the trial court’s order of termination if legally and

factually sufficient evidence supports any one of the grounds found in the termination

order, provided the record shows that it was also in the best interest of the child for the

parent’s rights to be terminated. See id.

Due process requires the application of the clear and convincing standard of

proof in cases involving involuntary termination of parental rights. In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2014). “‘Clear and convincing

evidence’ means 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.” § 101.007 (West 2014). This standard, which focuses on whether a

reasonable jury could form a firm belief or conviction, retains the deference a reviewing

court must have for the factfinder’s role. In re C.H., 89 S.W.3d at 26.

In reviewing the legal sufficiency of the evidence supporting an order terminating

parental rights, we 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

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conviction as to the truth of the allegations sought to be established. See In re J.F.C.,

96 S.W.3d at 266. “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.” Id. In other words, we will disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a termination

order, we determine “whether the evidence is such that a factfinder could reasonably

form a firm belief or conviction about the truth of the [Department]’s allegations.” In re

C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed

evidence is such that a reasonable factfinder could not have resolved the disputed

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “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.

Analysis

Predicate Act or Omission

We first turn our attention to the allegation that Natasha knowingly placed or

knowingly allowed the children to remain in conditions or surroundings which endanger

the physical or emotional well-being of the child, § 161.001(1)(D), and that she engaged

in conduct or knowingly placed the children with persons who engaged in conduct which

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endangers the physical or emotional well-being of the children, § 161.001(1)(E). For

purposes of analysis of the facts, “endanger” means to expose to loss or injury; to

jeopardize. See In re B.P., No. 07-14-00037-CV, 2014 Tex. App. LEXIS 8127, at *11

(Tex. App.—Amarillo July 25, 2014, no pet.) (mem. op.) (citing In re M.C., 917 S.W.2d

268, 269 (Tex. 1996) (per curiam)). It is not necessary that the conduct be directed at

the children or that the children actually suffer injury, or even that the conduct

constitutes a concrete threat of injury. See id. Further, subsection 161.001(1)(D)

permits termination for a single act or omission. See A.S. v. Tex. Dep’t of Family &

Protective Servs., 394 S.W.3d 703, 713 (Tex. App.—El Paso 2012, no pet.) (citing In re

R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied)). Subsection

(E) requires evidence of more than a single act, instead there must be clear and

convincing evidence of a deliberate or conscious course of conduct. See id. (citing In re

K.M.M., 993 S.W.2d 228 (Tex. App.—Eastland 1999, no pet.)). Abuse of a child by a

parent can be used to support a finding of endangerment, even for a child not yet born

at the time of the abuse. See In re I.G., 383 S.W.3d 763, 770 (Tex. App.—Amarillo

2012, no pet.). A parent’s mental state may be considered in determining whether a

child is endangered if that mental state allows the parent to engage in conduct that

jeopardizes the physical or emotional well-being of the child. In re R.W., 129 S.W.3d

732, 739 (Tex. App.—Fort Worth 2004, pet. denied). Further, the lack of visitation by a

parent can emotionally endanger a child’s well-being, supporting termination under

subsection 161.001(1)(E). See In re R.M., No. 07-12-00412-CV, 2012 Tex. App. LEXIS

10239, at *13 (Tex. App.—Amarillo Dec. 11, 2012, no pet.) (mem. op.).

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 From the record we have learned that, on March 11, 2013, Natasha had a

physical altercation with S.R., who was eleven years old at the time and, as a result of

this altercation, S.R. suffered a bloody nose. S.R. told the police that her mother,

Natasha, struck her in the face. When confronted with S.R.’s bloody nose, Natasha

stated she did not strike S.R. but rather S.R.’s nose was bloodied when Natasha

attempted to hold her down on the ground. However, at the same time, Natasha

refused to allow S.R. to be placed in the Pavillion to treat any mental illness that she

might be suffering. Additionally, at that same time, Natasha advised police and

Department personnel that she no longer wanted to be responsible for S.R.’s care.

Two days following the incident with S.R., on March 13, 2013, Natasha was

observed at Northwest Texas Hospital choking Z.H. and swinging her around. The

record establishes that it took a number of police officers to get Natasha’s hands off the

child’s neck and to subsequently restrain her. Natasha’s actions suggest she was

under the influence of drugs at the time of the incident.

Z.C. was taken into custody by the Department upon birth. Natasha has had

virtually no contact with the child since very shortly after his birth. At the time Natasha

left the hospital, she had not bothered to name the child. Nor has she ever attempted to

visit with the child. In short, Natasha has demonstrated a complete disregard for the

child.

Since S.R., Z.H., and Z.C, have come into the custody of the Department,

Natasha has not visited them. Neither has Natasha attempted to comply with any of the

requirements for obtaining the children back into her custody. In fact, Natasha has not

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maintained any contact with the Department. From these facts, we must determine if a

reasonable juror could form a firm conviction or belief that the Department had proved

the predicate acts alleged. See In re J.F.C., 96 S.W.3d at 266. It has been

demonstrated that Natasha has knowingly placed or knowingly allowed the children to

remain in conditions or surroundings which endanger the physical or emotional well-

being of the child. See § 161.001(D). Natasha’s conduct toward her children as

reflected by her actions directed toward S.R. and Z.H. provide the proof of this predicate

event, more especially, when viewed in the light most favorable to the finding of the trier

of fact, as we must in a review of the legal sufficiency of the evidence. See In re J.F.C.,

96 S.W.3d at 266. She engaged in assaultive conduct to two of the children, see In re

I.G., 383 S.W.3d at 770, has refused services, has not visited with the children since

these proceedings began, see In re R.M., 2012 Tex. App. LEXIS 10239, at *13, and has

had a very unstable mental history and lifestyle, see In re R.W., 129 S.W.3d at 739.

This assaultive conduct supports the termination of her rights to the child born shortly

after the incidents of assault. See In re I.G., 383 S.W.3d at 770. Further, our review of

the evidence regarding the subsection (E) predicate events establishes, by clear and

convincing evidence, a course of conduct engaged in by Natasha which endangers the

physical or emotional well-being of the children. § 161.001(1)(E). Accordingly, the

evidence is legally sufficient to support the factfinder’s determination that Natasha had

committed the predicate events alleged. See In re J.F.C., 96 S.W.3d at 266.

Further, when we review the evidence for factual sufficiency, we are to determine

“whether the evidence is such that a factfinder could reasonably form a firm belief or

conviction about the truth of the [Department]’s allegations.” In re C.H., 89 S.W.3d at

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25. The only evidence heard by the factfinder supports the Department’s proof that

Natasha knowingly placed or knowingly allowed the children to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child. See §

161.001(1)(D). This evidence also supports that she 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. See § 161.001(1)(E). All of which supports the

factual sufficiency of the evidence. See In re C.H., 89 S.W.3d at 25. Accordingly,

Natasha’s issues regarding the legal and factual sufficiency of the evidence regarding

application of subsections (D) and (E) are overruled as to each of the children.

Natasha contends that the trial court heard no evidence of the environment of the

children. This contention is without merit and ignores case law that provides that the

conduct of the parent can provide the environment from the perspective of subsection

(D) and (E). See In re I.G., 383 S.W.3d at 770 (holding that assaultive conduct

establishes an environment that can be dangerous to the physical and emotional well-

being of a child); In re R.W., 129 S.W.3d at 739 (holding that the mental state of a

parent may provide an environment that is dangerous to the emotional or physical well-

being of a child).

Remembering that it only requires proof of one statutory predicate ground to

support a termination of parental rights, see In re A.V., 113 S.W.3d at 361, we need not

address Natasha’s other issues regarding predicate grounds under subsections (N) and

(O). See TEX. R. APP. P. 47.1.

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Best Interest of the Children

Natasha next contends that the evidence is not legally or factually sufficient to

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

best interest of the children.

There is a strong presumption that a child’s interest is best served by preserving

the conservatorship of the parents; however, clear and convincing evidence to the

contrary may overcome that presumption. See In re R.R., 209 S.W.3d 112, 116 (Tex.

2006) (per curiam). The Texas Supreme Court has recognized a non-exhaustive list of

factors that are pertinent to the inquiry whether termination of parental rights is in the

best interest of the child: (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); see also § 263.307 (West 2014) (providing extensive

list of factors that may be considered in determining child’s best interest). In examining

the best interest of the child, we may consider evidence that was also probative of the

predicate act or omission. See In re C.H., 89 S.W.3d at 28. The best interest

determination may rely on direct or circumstantial evidence, subjective facts, and the

12
totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.).

The Department need not prove all nine Holley factors, and the absence of

evidence relevant to some of those factors does not bar a finding that termination is in

the child’s best interest, especially in the face of undisputed evidence that the parental

relationship endangered the child. See In re C.H., 89 S.W.3d at 27. No one Holley

factor is controlling, and evidence of one factor may be sufficient to support a finding

that termination is in the child’s best interest. In re A.P., 184 S.W.3d 410, 414 (Tex.

App.—Dallas 2006, no pet.) The evidence supporting the predicate grounds for

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

warrants termination of the parent-child relationship. In re D.S., 333 S.W.3d 379, 384

(Tex. App.—Amarillo 2011, no pet.).

As stated above, the evidence supports the finding by the trial court of the

predicate events which supported the termination of Natasha’s parental rights. This

evidence is likewise probative of the best interest of the children. See In re C.H., 89

S.W.3d at 28.

The record further demonstrates that Z.H. and Z.C. are thriving in their foster

parent relationship. This alone can lead the trial court to form an opinion that the young

children desire to stay in that relationship. See In re J.M., 156 S.W.3d 696, 706 (Tex.

App.—Dallas 2005, no pet.).

From the evidence heard by the trial court, Natasha has not been a factor in the

children’s lives since the Department took custody. She has not participated in services

13
nor has she attempted visitation. This bears directly on the question of Natasha’s

abilities to be a proper caretaker for the children. See In re C.A.J., 122 S.W.3d 888,

893 (Tex. App.—Fort Worth 2003, no pet.) Additionally, the assaultive nature of

Natasha’s conduct toward S.R. and Z.H. is a strong factor in assessing the best interest

of the children. A parent’s inability to provide adequate care for her children, lack of

parenting skills, and poor judgment may be considered when evaluating the best

interest of the children. See id. All of this evidence goes directly to the question of the

emotional and physical needs of the children, now and in the future. See Holley, 544

S.W.2d at 371–72. Thus, this evidence supports the proposition that termination is in

the best interest of the children.

Natasha’s absence for the duration of this case demonstrates that she lacks the

motivation or ability to acquire proper parenting skills. See Wilson v. State, 116 S.W.3d

923, 930 (Tex. App.—Dallas 2003, no pet.). In connection with this analysis is the fact

that Z.H. and Z.C. are thriving in foster care and that the foster parents desire to adopt.

These facts weigh heavily in favor of termination being in the best interest of the

children.

That S.R. is not doing as well in her residential treatment program does nothing

to defeat the best interest determination by the trial court. The evidence at trial

demonstrated that Natasha had effectively given up on trying to cope with or handle the

mental issues demonstrated by S.R. S.R. is now receiving treatment and has the

chance to handle her mental illness issues that was not present while she was with

Natasha.

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 While we have not addressed all of the Holley factors, those that have been

addressed clearly demonstrate that the best interests of these children is served by

terminating the parental relationship they have with Natasha. Accordingly, Natasha’s

issue to the contrary is overruled.

Conclusion

Having overruled Natasha’s issues pertaining to the sufficiency of the evidence to

support termination, we affirm the judgment of the trial court.

Mackey K. Hancock
Justice

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