COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00459-CV
IN THE INTEREST OF L.M.F., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In three issues, Appellant Mother appeals the termination of her parental
rights to her child, L.M.F. We affirm.
II. Factual and Procedural Background
L.M.F. is Mother’s ninth child. In 2008, Mother moved to Texas after
relinquishing her rights to five of her eight children so that her sister-in-law could
1
See Tex. R. App. P. 47.4.
adopt them.2 Mother separated from her husband in 2009 and started dating
C.F., L.M.F.’s father. She moved in with C.F. and his mother in February 2010
after she was evicted from her apartment.
On September 23, 2010, four days after L.M.F. was born, the Department
of Family and Protective Services (DFPS) removed L.M.F. from Mother and C.F.
after a CPS investigation of two referrals alleging risk of neglectful supervision.
The first referral involved Mother’s Indiana CPS history and the other alleged that
Mother had tested positive for marijuana. Mother testified that her last marijuana
use had been while she was pregnant with L.M.F. She gave various dates
between February and April 2010 to different witnesses regarding her last
marijuana use, and she attributed her May 2010 positive drug test to secondhand
marijuana smoke and to marijuana remaining in her body’s fat cells because she
had previously smoked it so heavily. Mother’s illegal drug of choice was
marijuana, which she had used on and off since she was around twenty years old
to calm herself.3
2
Indiana’s Child Protective Services (CPS) removed Mother’s eight
children, who were between the ages of five months and seventeen years, for
neglectful supervision related to drug use, domestic violence, and injuries to one
of the children. Mother attributed the loss of her parental rights to choosing her
abusive husband over the children, to his having failed a drug test, and to CPS
tricking her into relinquishing her rights. Mother’s three older children became
adults during this time.
3
On June 20, 2013, Mother told her Mental Health Mental Retardation of
Tarrant County (MHMR) caseworker that marijuana “helps her to relax opposed
to the psych medications.”
2
DFPS placed L.M.F. with her paternal aunt M.L. and set up service plans
for Mother and C.F. that included participating in individual counseling and
parenting classes, submitting to a drug and alcohol assessment and random
drug testing, obtaining stable housing and income, submitting to a psychological
evaluation, and visiting L.M.F. Mother’s service plan also included completing a
CPS education course to address domestic violence.
CPS’s concerns during the 2010 case were drug use, domestic violence
between Mother and C.F., unstable housing, and Mother’s previous CPS history.
During the CPS case, Mother reported to MHMR that she had cannabis and
alcohol abuse problems and that she had previously undergone substance abuse
treatment in Indiana but had not achieved sobriety in the past. Mother was
successfully discharged from MHMR’s Community Addiction Treatment Services
(CATS) program in December 2010. Mother did not take hydrocodone during the
first case.
In March 2011, the trial court ordered a monitored return of the child to
Mother and C.F., and in June 2011, it appointed Mother and C.F. as the child’s
joint managing conservators. A month later, Mother went to John Peter Smith
hospital (JPS), where she was diagnosed with acute hepatitis C, a depressive
disorder, and “Cannabis Dep-unspec.” Mother received prescriptions for
Citalopram (hereinafter, Celexa) for depression, Tramadol for pain, and thirty pills
3
of Norco (hereinafter, hydrocodone).4 In August 2011, Mother requested a
hydrocodone refill and received a prescription for thirty pills with one refill.
In August 2011, Mother reported to JPS that she and her ex-husband had
engaged in heavy alcohol use and she admitted “to drinking 12 beers a day for
an extended period of time” but said for the past few years, she had only
consumed one beer a week.
In September 2011, Mother reported to MHMR that she had been hearing
voices; Mother said that she was diagnosed with bipolar schizophrenia (also
referred to as schizoaffective disorder) in October 2011 and started taking
Risperdal.5 Although Mother’s MHMR records included patient warnings that
Risperdal should not be mixed with alcohol or street drugs, that other drugs
should not be taken with Risperdal unless advised by a doctor, and that changing
the medication’s dose or schedule without psychiatrist approval could cause
symptoms to return or other serious side effects, Mother’s October 2011 MHMR
drug test reflected that Mother tested positive for ethanol.
4
In In re S.A.G., No. 02-09-00125-CV, 2010 WL 1006301 (Tex. App.—Fort
Worth Mar. 18, 2010, no pet.) (mem. op.), we took judicial notice that
hydrocodone is “a potent analgesic derivative of codeine.” Id. at *1 n.3 (quoting
Stedman’s Medical Dictionary 911 (28th ed. 2006)).
5
Risperdal (Risperidone) is a psychotropic mood stabilizer used to relieve
or improve symptoms such as hallucinations, irrational beliefs and fears,
disorganized thinking, severe anxiety, apathy, emotional withdrawal, social
withdrawal, and mood swings.
4
In February 2012, Mother was admitted to the JPS psychiatric evaluation
unit and diagnosed with anxiety and alcohol and cannabis abuse. The
Emergency Medical Services summary included in Mother’s JPS records reflects
that she had said she thought she was having a nervous breakdown and that she
had been hyperventilating, screaming in outbursts, and crying. Mother told the
doctors at JPS that her current dosages of Risperdal and Xanax were not
working. In her emergency psychiatric assessment, Mother described hearing
voices and said she had had mental illness “all [her] life.” She indicated that she
had attempted suicide in the 1980s and still thought about killing herself and said
that her last beer had been the day before the assessment. The person
conducting the assessment noted, “P[atien]t minimizes her drinking; she gets
Xanax from MHMR and outside MHMR.”
In March 2012, CPS received a referral alleging neglectful supervision of
L.M.F. due to possible drug, alcohol, or prescription drug abuse in the home and
Mother’s erratic behavior. Mother admitted to the CPS investigator that there
had been domestic violence between her and C.F. but said that there had not
been any recently, that she was on mental health medication, and that she was
using pain medication to treat an ankle injury. The investigator noted that L.M.F.
was dressed appropriately and seemed clean, happy, and playful, and nothing in
the child’s appearance or behavior or the environment and home itself concerned
her. When the investigator followed up a month later, Mother told her that she
was no longer on pain medication and had started receiving her disability checks,
5
and she and C.F. agreed to a safety plan and family-based safety services
(FBSS). The FBSS case lasted for around three months.
In May 2012, an MHMR assessor, updating Mother’s comprehensive plan,
noted that Mother was “very mild in her demeanor in comparison with how she’s
been in the past. She appears focused and able to focus on her daughter.”
On August 10, 2012, Mother was arrested for public intoxication when she
and a male had a loud argument on their apartment’s back patio after midnight.
The arresting officer described Mother as loud and boisterous, with an odor of
alcoholic beverage on her breath; he warned her that if she continued to be loud,
he would have to arrest her. Mother “continued to scream and yell that she’s
going to do what she wants,” so he arrested her. Mother testified that the police
officer just assumed that she was drunk but that because he did not give her a
Breathalyzer test, she was not drunk. Five days after her public intoxication
arrest, Mother called MHMR, asked for $300 to help pay her rent, and accused
the MHMR staff member of not caring when her request was denied.
In September 2012, Mother asked MHMR to help her become her own
Social Security disability insurance (SSDI) payee and MHMR staff filled out a
form to help her do so. A September 2012 MHMR report reflects that Mother
was doing well on her medications but would hear voices and felt that “God
reveals things to [her].”
On November 8, 2012, DFPS received a new neglectful supervision
referral alleging domestic violence between Mother and C.F. and that C.F. was
6
abusing alcohol and Mother was using drugs and not taking her medications
properly. The CPS investigator who visited the home described L.M.F. as
healthy, clean, and dressed appropriately. Mother denied any recent drug use
and allowed the investigator to see her Risperdal and Celexa prescriptions and
prescription bottles. The investigator was concerned about the excess number of
pills in the bottles based on the dates the medications were filled, the quantity
remaining, and how many times Mother was supposed to take her medications
per day: Mother’s Risperdal bottle was filled with thirty pills in April 2012; she
was supposed to take one per day, but in November 2012, it was still almost full.
Mother told the investigator that because Risperdal made her feel tired, she did
not like taking it and would take only half of the pill. She also attributed the
quantity of pills to MHMR’s having given her ninety pill samples, which she said
she used before using the pills in the bottle. The investigator was unable to
confirm Mother’s statements with MHMR6 before receiving another referral on
November 28, 2012, which alleged domestic violence between Mother and C.F.
in an incident that involved Mother throwing canned goods at him. Mother
denied the incident until the investigator told her that someone had videotaped it.
During the interview, Mother called the investigator a bitch but then a few
minutes later told her that she was responsible, intelligent, and sophisticated,
6
Mother’s MHMR records that were admitted into evidence are from June
1, 2013, until October 7, 2013; they reflect that she received forty-five sample
pills of Risperdal on August 20, 2013.
7
hugged her for an extended period of time, and told her that she loved her.
Mother spent time during the interview poking a little dog to make it bark at her
and told the investigator that her concern about L.M.F. being placed outside of
the home was that she might lose her benefits. The trial court granted DFPS’s
request to remove L.M.F. based on concerns about domestic violence and
Mother’s mental health medication usage. L.M.F. returned to live with M.L.
Mother and C.F. received new CPS service plans in January 2013. 7 Because
C.F. had been incarcerated on a domestic violence charge arising out of an
incident on December 30, 2012—a date that Mother had used alcohol—CPS
mailed his service plan to him.
The new CPS service plan required visiting the child and participating in an
eight-week parenting program, a wellness recovery action plan (WRAP) course,
an anger management course, and individual counseling, as well as maintaining
appropriate housing, attending Narcotics Anonymous/Alcoholics Anonymous
(NA/AA), continuing to work with MHMR, completing a drug and alcohol
assessment, and participating in random drug testing. Mother’s new service plan
mirrored the one in the previous case except for the addition of mental health
treatment and the subtraction of the psychological evaluation, which was
7
In February 2013, DFPS moved to consolidate the new case with the
previous case, and the trial court granted the motion.
8
completed in the first case.8 All of Mother’s CPS caseworkers were concerned
about Mother’s prescription drug use and her mental health.9
On January 30, 2013, Mother underwent a psychosocial assessment; the
assessor noted,
Client was not coherent during the assessment and was not
able to focus on the questions. Her parental rights were terminated
on 8 of her children. Client stated that CPS in Indiana “stole her
children[.”] She reported that they were removed because they
didn’t like her home and her son kept getting injuries. Her one year
old daughter is currently in foster care due to drinking, violence, and
mental health issues in the home. . . . Client talked about being
videoed throwing can[ned] goods at her boyfriend. She talked about
some violence going on at the home.
The assessor also observed, “Client should continue to be seen at MHMR
and can’t benefit from additional counseling at Merit at this time. Client appears
to be mentally unstable and should obtain a psychological evaluation to
determine her intellectual ability to care for her child.”
Mother and her first counselor developed three long-term goals when
Mother began individual counseling in April 2013: to eliminate all physical
aggression in her relationship, to change thinking and behavioral patterns that
create conflict or interfere with attempts to achieve desired outcomes, and to
8
Mother’s 2010 psychological evaluation was not submitted into evidence.
9
Mother’s CPS caseworker in the first case received the second case in
November 2012 and worked on it until she left DFPS in June 2013. Mother’s
next CPS caseworker had the case from June 2013 until October 2013, when
she became a CPS kinship worker. When she left the case, her CPS supervisor,
who had supervised both Mother’s 2010–2011 case and the instant case, took
over.
9
achieve a level of competent, effective parenting.10 Mother’s four short-term
counseling goals were to attend individual sessions as recommended, to identify
the behaviors that typically signal the escalation toward violence, to identify an
effective style of parenting, and to express feelings of frustration, helplessness,
and inadequacy associated with parenting. Mother told her first counselor that
she did not feel like she needed counseling because she already saw a
counselor through MHMR and said she was going to “fake it” until the counselor
told her that she would be discharged. Mother then changed her attitude and
became more engaged.
After five sessions, Mother’s first counselor gave up in May 2013, noting
that Mother was not making progress, that mother “appear[ed] to not have the
mental capacity to process her feelings,” that mother did not feel that she had
any issues, and that mother needed to be treated for medication management
because she seemed to lack the cognitive ability to participate successfully in
counseling. Mother’s new counselor began seeing her in June 2013 and
retained the same counseling goals.
Mother subsequently admitted to having thrown cans at C.F. She blamed
the new CPS case on the can-throwing incident and on C.F. because they had
fought and she “lost her impulse, and threw cans at him.” Mother told one of her
CPS caseworkers that L.M.F. was in the room when she threw the cans at C.F.
10
Mother signed the treatment plan, indicating that she had helped create it
and that she understood her goals.
10
but said that she did not think she could have hit the child because she did not
intend to throw the cans at her. At trial, Mother testified that she recalled telling
the CPS caseworker about the can-throwing incident but said, “I just tossed a
couple.” Mother testified that L.M.F. was in the apartment when she threw the
cans at C.F. but that the child was not in the room when it happened.
Mother also told her CPS caseworker that she and C.F. would get into
fights and that he had abused her and threatened her son with a gun. Mother
told the supervisor of her Court Appointed Special Advocate (CASA) volunteer
that she called the police on C.F. in the past because they regularly fought and
he was abusive to her. The trial court admitted a copy of C.F.’s May 10, 2013
judgment of conviction, which reflects that in exchange for three years’
confinement, C.F. pleaded guilty to having committed “Assault Family/Household
member with previous conviction,” causing bodily injury to Mother. The judgment
of conviction listed the date of the offense as December 30, 2012, and the
indictment alleged that C.F. had intentionally or knowingly caused bodily injury to
Mother by hitting her with his hand.
Mother denied to her CPS caseworker and at trial that an actual assault
had occurred, explaining that she had just been in the wrong place at the wrong
time:
See, we was in the kitchen, and [C.F.] and the guy that we
was staying with, they got into it, and I got in the middle, you know. I
went down. So the people in the house said that he pushed me. He
didn’t push me.
11
I got in the middle of them, and I, you know, went down. But
he didn’t put his hands on me, not at all. That’s why I went to go
sign that paper to try to get him out of jail. But me and him don’t
have no history about no domestic violence or nothing.
Mother testified that C.F. had never hit her and that she had never hit him.
The CPS supervisor noticed Mother’s speech and behavior during
Mother’s May 7, 2013 visit with L.M.F. and asked Mother to talk with her in the
room next door. When Mother sat down next to her, she immediately smelled an
alcohol-like odor. Mother’s speech was very slurred, but she denied having had
any alcohol since December and said she had only taken hydrocodone and
Soma that morning. When the CPS supervisor attempted to administer an oral
swab drug test, Mother had a hard time following the instructions but told the
supervisor, “You know, I ain’t stupid, I’m not stupid, bitch; I know how to do it.”
Because of Mother’s behavior and mental state, the supervisor had the case aide
take L.M.F. away and tried to discuss with Mother her use of prescription pain
medication and muscle relaxers. Mother was not forthcoming and kept asking
her “why [she] was all in her business.”
When the CPS supervisor asked Mother about her mental health
medications, Mother would not let her see the bottles but told her, “See, I got my
pills, I got my pills.” After Mother put the bottles back in her purse, she paused,
reached back in, pulled out a pill, popped it in her mouth, and said, “Oh, I forgot
to take my Celexa today.” The CPS supervisor testified that she did not know
what pill Mother had taken.
12
Over the course of the case, MHMR adjusted Mother’s mental health
medications when she complained that they were not working, switching her from
Celexa to Prozac in May 2013, but then discontinuing the Prozac in June 2013
because “it made her ‘hyper,’” and switching her to Mirtazepine. Mother received
her other medications—Soma, Xanax, and hydrocodone—through JPS. On May
3, 2013, JPS doctors prescribed Xanax in a quantity of ninety pills with three
refills, Soma in a quantity of 120 pills with three refills, and hydrocodone in a
quantity of 120 pills with three refills. Noted on the hydrocodone prescription is,
“Each Refill must last 45 days.”
On May 16, 2013, MHMR updated Mother’s comprehensive plan and
noted that Mother was appropriately dressed and maintained eye contact but
was hypertalkative and reported being extremely anxious about her CPS case.
C.F. died in jail that month, and at the May 30, 2013 permanency hearing, DFPS
changed its primary permanency goal to relative adoption because Mother had
not completed any of her services at that point, although she was participating in
parenting classes, anger management classes, visitation, and counseling.
Mother revealed violent tendencies and continued to hear voices during
the case. On June 20, 2013, her MHMR caseworker noted that Mother said she
felt homicidal about “this guy disrespecting her mother,” and showed the
caseworker the knives that she would use “if she have [sic] to.” In July 2013,
Mother told her CPS caseworker that she could see devils on people and heard
voices. When her CPS caseworker asked her in September about what had
13
happened in late July 2013 with her prescriptions, Mother told her CPS
caseworker that her son had stolen her medications and that she threatened him
because she was angry. Mother told her counselor that she had threatened her
son with a knife because she suspected he had stolen her medications out of her
purse and was selling them. At trial, Mother denied that her son had stolen her
medications and denied that she had ever pulled a knife on him. Mother said
that her son had thrown away her medications because he did not know what
they were for and that she took him to MHMR so that they could explain because
she had hidden her bipolar condition from him. Mother said that after her son
talked with her psychiatrist, her psychiatrist refilled her prescription.
Mother did not test positive for any illegal substances on the two drug tests
that CPS administered to her or in the tests MHMR administered to her. She
completed her substance abuse assessment in July 2013, but the assessment
did not result in any recommendations because Mother told the CATS assessors
that “she takes her medication as prescribed, that she doesn’t have issues with it
because she’s prescribed her hydrocodone and Xanax, Celexa, [R]isperd[al], and
Soma.” Mother’s CPS caseworker said that when she asked Mother whether
she had told the CATS assessors about her prescription medication, what she
was using daily, and her normal medication list, Mother told her that it was none
of their business or hers.
On August 12, 2013, Mother reported to her MHMR caseworker that she
had experienced audio and visual hallucinations, that she felt like someone
14
wanted to kill her, and that she “sees shadows of the demons.” She also told her
MHMR caseworker that CATS would not take her because she had been “clean”
for over ninety days. On the same day, JPS staff noted that Mother had been
told that her doctor would need to see a police report to “consider replacing her
medication for Soma, and another pain medication instead of hydrocodone,” and
Mother had agreed to bring in a police report. Two days later, however, Mother
was brought to the JPS emergency room when the bus she was riding was
involved in a collision, and she was given a prescription for hydrocodone.
On August 15, 2013, Mother showed her Celexa and Risperdal bottles to
her CPS caseworker, who was concerned because the Celexa prescription had
been filled for thirty pills on July 10, 2013, and still had fifteen to twenty pills in it,
and the Risperdal bottle, filled for sixty pills, also appeared to be more than half-
to three-fourths full. When she mentioned her concern that Mother was not
taking the medication as prescribed, Mother told her that it was none of her
business and that she did not need to worry about it. Mother’s CPS caseworker
said that Mother did not have any hydrocodone, Xanax, or Soma left on the
prescriptions that were supposed to last her until November 2013. The CPS
supervisor described Mother as very protective of her new hydrocodone
prescription, stating that Mother “immediately jumped up and walked over to [her]
and, you know, in a laughing way, [Mother] was like, ‘Girl, give me my
prescription.’” She said that Mother wanted the hydrocodone prescription back,
took it from her, and put it inside the home.
15
Mother described her August 15, 2013 discussion with the CPS
caseworker and CPS supervisor about her prescriptions as,
I feel that they was stereotyping me, labeling me, slandering
me, because [the CPS supervisor] said, you do have a problem, just
admit it. I can’t admit to something that I don’t have. I just feel—
they just made me feel awful, like a piece of trash or something,
hollering at me.
Mother said that although the visit had started off well, when the caseworkers
told her they would terminate her rights to L.M.F. if she did not admit to having a
problem, she told them that she could do it but would also say that her
caseworkers made her do it.
On August 20, 2013, Mother reported to MHMR that she still occasionally
had audio hallucinations but that they were “‘good voices’ that tell her to ‘keep
trying and do the right thing.’” Mother complained to MHMR that she felt fatigued
during the day after an increase in her Risperdal dosage, but the doctor noted
that Mother was also taking Soma, hydrocodone, and Xanax during the day as
well and discussed with Mother that all of these medications, especially in
combination, are sedating, have “addictive potential,” and can cause “daytime
somnolence, impaired judgment.”
On August 23, 2013, Mother was brought to the JPS emergency room by
the police because she had told police officers that she was going to get a knife
and stab people and take an officer’s gun and shoot people. Her condition was
described as “PMH of paranoid schizophrenia, bipolar type 1 disorder. Has not
taken medication recently. Drank alcohol last night. . . . Denies drug use.
16
Positive for homicidal ideation towards CPS workers. Denies suicidal ideation
and auditory/visual hallucinations. Denies physical harm towards her.”
[Emphasis added.] Mother’s psychiatric condition was further described as,
Her mood appears anxious. Her affect is angry and
inappropriate. Her speech is rapid and/or pressured. She is
agitated, aggressive and combative. She is not actively
hallucinating. Thought content is paranoid. She expresses
impulsivity and inappropriate judgment. She exhibits a depressed
mood. She expresses no suicidal ideation. She expresses no
suicidal plans. Patient states she wants to hurt the CPS workers
she is working with[.]
Mother’s inpatient record stated that her insight into her mental illness was poor
and “[p]atient does not understand need for treatment.” It also reflected that
Mother’s judgment concerning everyday activities and social situations was poor.
One of the JPS doctors noted that although Mother claimed to have had
only one beer, she was intoxicated and belligerent, smelled of alcohol, and had a
blood alcohol level of “262.” Mother’s drug test was negative for illegal drugs. At
one point, Mother broke through her restraints; Fort Worth police officers
remained at her bedside. JPS staff sedated her with Haldol and Ativan.
The next day, Mother told JPS staff that she had gotten into a fight with her
son and claimed that he had stolen her purse and would be going to jail; she also
admitted that she had been drinking as part of her birthday celebration. Mother
was discharged from JPS on August 24, 2013, with the diagnosis of “episodic
mood disorder.”
17
At trial, Mother testified that she was taken to JPS on August 23, 2013, for
an anxiety attack and denied that she had been drunk or drinking on that
occasion, although she acknowledged that she had had a margarita on August
22 to celebrate her birthday. Mother denied that she had taken any pain pills on
August 22, and she insisted that the only time in the case that she had missed
taking her mental health pills was during three days in August.
Mother did not tell her counselor about the August 23 incident until mid-
September and did not tell her counselor or CPS caseworker that she had been
taken to JPS by the police. When she told her counselor about the incident,
Mother attributed it to having not taken her medication for three days. When her
counselor tried to make a plan with Mother to avoid future incidences, Mother
denied the need for such a plan, told her that it would not happen again, and
reported that her only plan was to always take her medication. Mother told her
counselor that she just had not wanted to take the medication on those days.
On September 17, 2013, L.M.F. fell from the couch during her visit with
Mother. Instead of checking on the child, who had started crying, Mother just
stood there and said, “Get up, baby, you okay, you going to be okay.” Mother’s
CPS caseworker had to direct Mother to check on the child. Mother told her CPS
caseworker that she had more mental health pills than could be accounted for
because she did not have the money to pay for them on the date the
prescriptions were filled and paid for them “later, much later in the month.”
However, Mother also testified that MHMR covered the cost of her mental health
18
medications and would do so until her Medicaid started. Mother paid for the rest
of her medications.
The CASA supervisor visited Mother’s home on the evening of September
17, 2013.11 He testified that Mother told him that when she did not take her
mental health medication, she had “episodes” and that one of these episodes
happened in late August, when she chased a little girl around the apartment
complex with a butcher knife. At trial, Mother denied having chased anyone in
her neighborhood with a knife or having chased any of the children in her
apartment complex.
The CASA supervisor also testified that when he asked Mother about her
prescription medication, she told him
[t]hat she got prescription for 120 hydrocodone pills, and she had got
one—got a prescription filled July the—July the 23rd and that she
got another one filled early August. And so [he] asked her had she
used all her medicine, and she told [him] that she didn’t have any—
any more hydrocodone left. [He] asked her how many pills w[ere] in
each prescription, and she told [him] it was 120.
He took this to mean that Mother admitted using 240 hydrocodone pills from July
23, 2013, to September 17, 2013. The CASA supervisor testified that Mother
first told him that her son had stolen her medicine but then “finally said that she
11
The CASA supervisor testified that Mother called and invited him; Mother
said that she did not. During cross-examination, the CASA supervisor agreed
that Mother’s counsel had not given him permission to talk with Mother and that
Mother’s counsel had told him to stop talking with Mother.
19
took them” and admitted that she had a problem.12 He asked her why she did
not address the problem in counseling, and Mother told him that she would talk to
the counselor and seek treatment to get her prescription abuse addressed.13
At trial, Mother denied having taken 240 pills in two months, said that
taking 240 pills of hydrocodone in one month would be impossible, and said that
she did not have two prescriptions of 120 each and that “[y]ou only get one
prescription every 45 days.” Mother said that the CASA supervisor’s testimony
included “a lot of things . . . that were untrue,” denied having taken too many pain
killers or muscle relaxers during the case, and denied having had an alcohol
abuse problem in the past.14
Mother testified that she was still taking Soma but did not have any Xanax
or hydrocodone left and would not have any more until she saw her doctor in
February. Mother said she took Soma for cramps caused by so many
pregnancies and for an ankle injury; she had been taking Soma “off and on”
12
The CASA supervisor testified that he said, “‘[S]o you mean your son
stole your medicine?’ And she said, ‘You know what, I’m going to just go on and
be truthful with you, I took the medicine, they’re gone.’ I said, ‘Where are they
at?’ She said, ‘They’re all gone, I took them, I used them.’”
13
The October 8, 2013 CASA report reflects that Mother also told the
CASA supervisor that within the past few months, she had stopped abusing her
pain medicine but often shared it with her adult son.
14
Mother said that she drank alcohol “[p]robably every once in a while,”
such as having a margarita or daiquiri with her mother if they went to Red
Lobster or on special occasions. She said that she understood that drinking
alcohol with pain medication could be dangerous to her health and that she did
not drink alcohol with pain medication.
20
since she was twenty years old and was supposed to take it four times a day as
needed, depending on her pain level. Mother testified that the last time she had
prescriptions for Xanax and hydrocodone was at the end of July 2013, that the
prescriptions had been written for thirty to forty-five days, and that no doctor had
given her any ninety-day prescriptions.
During Mother’s September 23, 2013 counseling session, Mother refused
to discuss what would happen if L.M.F. were not returned to her, although she
said that “things were going to hit the fan” if the child were not returned; Mother
firmly believed that the child would be returned to her. Mother’s counselor
observed that Mother’s responses “were very calculated so as not to tell [her]
what was actually going on,” and that any time she asked Mother about her
anger, drug use, or mental health issues, Mother would say, “That’s not an issue
with me, I’m fine, I can control it.”
Mother’s counselor stated that Mother had not been successfully
discharged from counseling because, although Mother had never missed a
scheduled session, her thought process appeared to be focused on completing
the CPS tasks rather than making progress in addressing her issues and
changing her behavior. The counselor did not think that Mother had made
progress in addressing her issues.
While the bulk of the case focused on Mother’s mental health and her
medications, Mother and DFPS’s witnesses also testified about Mother’s
employment, income, support network, and housing. At the conclusion of the
21
first CPS case, Mother and C.F. had both been employed part-time, Mother was
receiving food stamps, and Mother had qualified for temporary assistance for
needy families (TANF). During the second case, Mother was unemployed,
although she had an associate’s degree in business management and had
worked for the Gary Housing Authority for around ten years before moving to
Texas. Her income consisted of disability payments, which were reduced when
L.M.F. was removed from her. MHMR covered the cost of Mother’s mental
health medications. Mother and her mother told Mother’s MHMR caseworker in
June 2013 that they needed food, but Mother’s MHMR progress notes also
indicate that Mother “[g]ot her nails done; bought new dresses” at the end of that
month. In August, Mother told her CPS caseworker that she did not have the
money to pay for her other medications, which cost around $100. When her CPS
caseworker asked her why she could not afford them, Mother told her that she
paid rent and went on “outings with her mother, including going out to eat and
things of that nature.”
Mother testified that the last time that she worked was at a telemarketing
job in 2010 for a couple of weeks. After she was let go for not making enough
sales, she received unemployment, and her family helped her out financially, as
did different agencies until she started receiving disability payments. Mother said
that her monthly disability benefit was $793 and that her mind was not on
employment at present; her plan was to go back to school for business
management, and her job would be to take care of L.M.F. The CASA supervisor
22
testified that Mother told him that she gave her mother $50 per month to help
with rent, helped pay her son’s cell phone bill and other bills, and sent money to
her daughter who lived out of town. Mother indicated to the CASA supervisor
that she needed help with paying for housing because although the State had
given her an allowance for housing, without an increase, she could not afford a
place for her and L.M.F. Mother testified that her support network was her
mother, relatives in Indiana, and two grown sons, who had cars and would help
take her and L.M.F. to activities like “going to the zoo, going to the store.”
Mother testified that she lived in an apartment with her sixty-four-year-old
mother, who is also bipolar. Mother said that her mother was not on “housing,”
that they paid full rent, which was $400 per month, and that Mother was on a
housing list.15 Mother said that she had a toddler bed for L.M.F. and that it would
go in the living room. Mother’s CPS caseworker testified that Mother’s mother
was on government assistance with housing and that she was concerned about
Mother’s housing situation in August 2013 because there was no place in the
apartment designated for Mother or L.M.F. and there did not appear to be
sufficient space for a toddler bed.
DFPS and CASA recommended terminating Mother’s parental rights. The
trial court took judicial notice of the October 8, 2013 CASA report, which reflected
that L.M.F. was thriving in M.L.’s home and had a loving bond with M.L. and that
15
Mother’s MHMR records reflect that on August 12, 2013, she told her
MHMR caseworker that she was on a waiting list for section 8 housing.
23
M.L. wanted to adopt L.M.F. if the trial court terminated Mother’s parental rights.
The CASA report also stated that prior to his death, C.F. had named M.L. as a
desired placement for the child, that the child had been living with M.L. for more
than nine months, and that prior to this case, L.M.F. had lived with M.L. for the
first year and a half of her life. The CPS supervisor stated that L.M.F. saw M.L.’s
home as her home and was excited to go back there after visits, that M.L. wanted
to adopt L.M.F. and was licensed to adopt, and that DFPS’s plan for the child if
Mother’s parental rights were terminated was adoption by M.L.
Mother’s CPS caseworkers described L.M.F. as well-adjusted and very
bonded with M.L., who provided the child with a loving, structured, appropriate,
and stable home and everything she needed. The CPS caseworkers supported
terminating Mother’s parental rights to L.M.F. as in the child’s best interest
because of Mother’s erratic behavior, inability to recognize her anger and lack of
impulse control, failing to take her mental health medication, and abuse of
prescription pain medication and alcohol. One of the CPS caseworkers stated
that Mother’s failure to maintain her mental health medication and to maintain
sobriety placed L.M.F. at risk because her reaction to the medication or lack
thereof could present threats to Mother’s life as well as affect her ability to
provide daily caregiving and to parent the child. The CPS caseworker said,
“You’re not able to parent, in my opinion, if you’re not able to maintain yourself
mentally and you’re taking other medications that are going to change your
conduct, going to change your pattern of behavior.” The CPS supervisor said
24
that she was concerned about Mother’s overall mental stability and “what that
would look like for a child who’s three to have to go through days of good days
with mom and bad days with mom and what [e]ffect that will have on her long
term.”
The CPS caseworkers and supervisor recommended termination of
parental rights instead of permanent managing conservatorship with a relative
because Mother’s involvement with L.M.F. could be destructive to the child and
difficult for her,16 because the goal for the child was permanency, and because at
that time, termination and adoption by a relative who could provide a safe and
stable environment appeared to be the most permanent outcome for the three-
year-old child.17 The CPS supervisor further added that permanent managing
conservatorship with relative placement would open the child to possibilities of
attempted modifications in the future, threatening the child’s stability.
When asked if she would have done something differently at the beginning
of the case, Mother said, “I could have chose a different caseworker that was
someone that’s going to work with me and not slander me.” With regard to her
16
The CPS supervisor said, with regard to Mother’s overall mental stability,
that based on Mother’s actions throughout the case, Mother’s behavior was not
at a point that she could safely say that Mother should have any contact with
L.M.F.
17
The CPS supervisor agreed that she had supported returning L.M.F. to
Mother in the first case but said that during that case, Mother had made
significant progress in addressing CPS’s concerns, had maintained stable
housing with C.F., had a good working relationship with CPS, and was open and
honest about issues or concerns that CPS had during the case.
25
caseworkers, Mother said that it seemed like when C.F. died, “they just want to
give my baby to his sister [M.L.], and that’s not right. My baby belong with me.
She all I got to fight for, the last one.”
Mother said that since the case started in October 2012, she felt that she
had improved with her anger management and by “not jumping into no more
relationships.” She stated that she thought she had improved to the degree that
she could capably care for L.M.F. and that she had done everything she was
supposed to do. With regard to L.M.F., Mother testified,
I’m a very good mother. When my baby is returned back to
me, my baby will never be in CPS ever again because all of this is
really old. I’m taking care of my mental health. I’m not doing
anything, no—nothing wrong. I’m not running the streets. I’m not
doing nothing wrong. I’m doing—I go to church. I pray a lot. I enjoy
music. I sing. I’m a great mother. And all I need is a chance with
one of my kids.
And, like I say, I will never be in a relationship with—me and
relationships just don’t work
....
I just want my—my child. I just want my child. I deserve my
child.
The trial court terminated Mother’s parental rights to L.M.F., finding that
she had knowingly placed or knowingly allowed L.M.F. to remain in conditions or
surroundings that endangered her physical or emotional well-being; that she had
engaged in conduct or knowingly placed L.M.F. with persons who engaged in
conduct that endangered her physical or emotional well-being; and that
termination of Mother’s parental rights to L.M.F. would be in L.M.F.’s best
26
interest.18 See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2) (West Supp.
2013). This appeal followed.
III. Termination of Parental Rights
In her first two issues, Mother challenges the legal and factual sufficiency
of the evidence to support the trial court’s endangerment findings under section
161.001(1)(D) and (E). In her third issue, Mother argues that the evidence is
legally and factually insufficient to support the trial court’s best interest finding.
A. Standard of Review
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Id. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex.
2005). Both elements must be established; termination may not be based solely
on the best interest of the child as determined by the trier of fact. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (West 2008). Evidence
is clear and convincing if it “will produce in the mind of the trier of fact a firm belief
18
Despite Mother’s mental health issues, DFPS did not have to seek
termination under section 161.003. See In re K.G., 350 S.W.3d 338, 351 (Tex.
App.—Fort Worth 2011, pet. denied) (noting that section 161.003 is not the
exclusive way to terminate the parental rights of someone with a mental illness or
deficiency).
27
or conviction as to the truth of the allegations sought to be established.” Id.
§ 101.007 (West 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the
evidence in the light most favorable to the finding and judgment. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the
finding. Id. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id. We cannot weigh witness credibility issues
that depend on the appearance and demeanor of the witnesses, for that is the
factfinder’s province. Id. at 573, 574. And even when credibility issues appear in
the appellate record, we defer to the factfinder’s determinations as long as they
are not unreasonable. Id. at 573.
28
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated subsection (D) or (E) of section 161.001(1) and that the
termination of the parent-child relationship would be in the best interest of the
child. Tex. Fam. Code Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).
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 in the truth of its
finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
B. Endangerment
Mother argues that the evidence was legally and factually insufficient to
support the trial court’s endangerment findings because DFPS’s evidence
regarding her behavior and its effect on L.M.F. “was so cursory, deficient, and
unscientific as to amount to no evidence at all.”
“Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). Under subsection (E), the relevant inquiry is whether evidence exists
that the endangerment of the child’s physical well-being was the direct result of
the parent’s conduct, including acts, omissions, or failures to act. See J.T.G.,
121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally,
29
termination under subsection (E) must be based on more than a single act or
omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.
§ 161.001(1)(E). It is not necessary, however, that the parent’s conduct be
directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at
533; J.T.G., 121 S.W.3d at 125. To determine whether termination is necessary
because of endangerment, courts may look to parental conduct both before and
after the child’s birth. J.T.G., 121 S.W.3d at 125 (citing In re D.M., 58 S.W.3d
801, 812 (Tex. App.—Fort Worth 2001, no pet.)). A mother’s use of drugs during
pregnancy may amount to conduct that endangers the physical and emotional
well-being of the child. Id. (citing In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—
Fort Worth 2002, no pet.)). The specific danger to the child’s well-being may be
inferred from parental misconduct alone. See Boyd, 727 S.W.2d at 533; see also
In re R.W., 129 S.W.3d 732, 741 (Tex. App.—Fort Worth 2004, pet. denied)
(stating that the factfinder was not required to ignore a long history of
dependency and destructive behavior, including abusing drugs and alcohol, in
considering endangerment); see also In re D.T., 34 S.W.3d 625, 636–37 (Tex.
App.—Fort Worth 2000, pet. denied) (op. on reh’g) (stating that evidence of
conduct before child is born, as well as evidence as to how a parent has treated
another child, is relevant regarding whether a course of conduct under section
161.001(1)(E) has been established).
30
As a general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the physical and emotional well-being of a child. R.W., 129
S.W.3d at 739. Further, “although mental incompetence or mental illness alone
is not grounds for terminating the parent child relationship [under section
161.001(1)], ‘when a parent’s mental state allows [her] to engage in conduct
[that] endangers the physical or emotional well-being of the child, that conduct
has a bearing on the advisability of terminating the parent’s rights.’” Maxwell v.
Tex. Dep’t of Family & Protective Servs., No. 03-11-00242-CV, 2012 WL 987787,
at *9 (Tex. App.—Austin Mar. 23, 2012, no pet.) (mem. op.) (quoting In re C.D.,
664 S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ)). Mental health
issues that are frequently untreated, especially when combined with delusions,
hallucinations, a diagnosis of paranoid schizophrenia, and an unwillingness or
inability to appreciate the consequences of failing to treat those issues, can
present a substantial risk to a child’s safety. See id. at *9–11 (finding evidence
factually sufficient under section 161.001(1)(E) when, among other things,
mother failed to treat her severe mental illness during the pendency of the
proceedings even though she was aware that doing so was essential to
reunification with her daughter); see In re J.I.T.P., 99 S.W.3d 841, 845 (Tex.
App.—Houston [14th Dist.] 2003, no pet.) (considering domestic violence,
mother’s mental state, and her history of noncompliance with her medication as
factors endangering the child’s well-being); C.D., 664 S.W.2d at 853 (finding
evidence sufficient to support endangerment when mother was on medication for
31
paranoid schizophrenia at the time of trial, had been violent in the past because
of her condition, had attempted suicide and made threats to attempt suicide, had
been hospitalized over twenty times, and had destroyed property and attempted
to steal a helicopter).
A parent’s failure to take medication can also expose a child to
endangerment of her emotional or physical well-being. See In re L.L.F., No. 02-
11-00485-CV, 2012 WL 2923291, at *15–16 (Tex. App.—Fort Worth July 19,
2012, no pet.) (mem. op.) (holding evidence of endangerment sufficient based on
mother’s failure to take her bipolar medication, her guarded long-term prognosis
without medication, and her drug use while pregnant, aggressive behavior, and
criminal convictions); see also In re M.A.P., No. 02-11-00484-CV, 2012 WL
2036457, at *8–10 (Tex. App.—Fort Worth June 7, 2012, no pet.) (mem. op.)
(holding evidence of endangerment sufficient when mother continued to
associate with violent father, used marijuana around infant and during the CPS
case’s pendency despite knowing that using it exacerbated her schizophrenia,
and failed to take her mental-health medication). And “[d]omestic violence, want
of self control, and propensity for violence may be considered as evidence of
endangerment.” J.I.T.P., 99 S.W.3d at 845.
Mother complains that DFPS did not sufficiently prove that her prescription
drug use, mental health issues, and the alleged domestic violence in her home
threatened L.M.F., but she admitted during the trial that she had smoked
marijuana while pregnant with L.M.F. and that she had thrown canned goods at
32
the child’s father while the child was in the home. She also relinquished her
rights to five other children after Indiana’s CPS investigated earlier domestic
violence and drug use in her home.19 Mother has schizoaffective disorder and
heard voices before and during the case; two months before trial, she stopped
taking her mental health medications for three days, had a margarita, and ended
up at JPS in restraints because she had made threats about stabbing and
shooting people.20 Instead of making a plan for the next time she stopped taking
her mental health medications, Mother told her counselor that it would not
happen again.
Throughout the case, Mother denied having a substance abuse problem
with her prescription pain pills, marijuana, or alcohol or trouble managing her
mental health medications. However, the record reflects that Mother frequently
19
Although Mother also argues that she denied that she hit C.F. or that he
hit her, that C.F.’s assault conviction arose from her intervention in his altercation
with a third party, and that DFPS never put on any evidence to contradict her
testimony, the record reflects that prior to the instant case, Mother told a CPS
investigator in March 2012 that there had been domestic violence between her
and C.F., and that during the instant case, she told one of her CPS caseworkers
that C.F. had abused her and threatened her son with a gun, she told the CASA
supervisor that she called the police on C.F. because they fought regularly, and
she told her MHMR caseworker that her last abusive boyfriend was the father of
her child and had died in jail. After C.F. died, Mother told her counselor that a
male friend had hit her and that she had hurt him, following the domestic violence
pattern she had established first with her ex-husband and then with C.F.
20
The CASA supervisor testified that Mother told him that when she did not
take her mental health medications, it created situations like the August butcher-
knife “episode” that she described to him. Mother denied that this episode
occurred.
33
appeared erratic and lacked impulse control and that she would become overly
emotional, incoherent, and unable to maintain her focus on conversations or
activities such as her visits with L.M.F. When confronted about her coping,
parenting, and medication management skills, Mother would become defensive,
argumentative, and rude. Mother could also be loud and disruptive—C.F.’s
family did not include her in his burial services because “she shouts out loud too
much”—and she had difficulty drawing connections between her past and
present behavior and the risks that behavior presented to her child.21
Further, despite Mother’s contention that pill counting by CPS workers and
the CASA supervisor amounted to a “haphazard analysis” when DFPS did not
put on any evidence as to the nature of hydrocodone, the drug’s side effects or
impairment potential, the strength of her prescription, and the prescription’s
recommended dosage or introduce any drug test results to substantiate its
prescription drug abuse allegations, Mother’s CPS caseworker and CPS
supervisor testified that in August, Mother had no hydrocodone, Xanax, or Soma
21
Mother’s MHMR records reflect that on June 4, 2013, Mother called
MHMR to request a letter from medical staff “stating that she’s mentally stable
and able to care for her child.” When the MHMR staff member explained to
Mother that MHMR could only provide her with a diagnosis letter along with her
current prescribed medications, Mother stated, “I don’t want that! CPS is trying
to terminate my rights and I need this letter! [A staff member] filled out
paperwork for social security stating that I could be my own payee[,] so what’s
the difference?” When the MHMR staff member tried to explain to Mother that
becoming her own SSDI payee and having custody of her child were two totally
different, unrelated issues, Mother accused the staff member of acting like she
did not care.
34
left of the supply that was supposed to last her until November. Mother’s JPS
records show that Mother tried to obtain another prescription on August 12, 2013,
claiming theft,22 and then obtained a hydrocodone prescription two days after the
bus accident.
On August 15, 2013, Mother showed the new hydrocodone prescription to
her CPS supervisor. Her CASA supervisor testified that by September 17, 2013,
Mother had had a hydrocodone prescription for 120 pills filled on July 23 and
another filled in early August and did not have any hydrocodone left, and Mother
testified in November 2013 that she did not have any hydrocodone left on the
July prescription; she did not mention the August hydrocodone prescription.23
Mother also contends that DFPS failed to call expert witnesses to testify
about her mental health as it related to her parenting ability and did not introduce
her 2010 psychological exam into evidence and that the difference between her
behavior observed by MHMR and CPS workers “must bring into question the
purpose and credibility of [DFPS’s] witnesses.” However, the factfinder was the
judge of the witnesses’ credibility, see J.P.B., 180 S.W.3d at 573, 574, and
22
Mother’s CPS caseworker and her counselor both testified that Mother
told them that her son had stolen her medication so she had threatened him with
a knife, but Mother denied that her son had ever stolen her medications or that
she had ever pulled a knife on him.
23
Mother testified that no doctor had given her ninety-day prescriptions,
and her JPS records include photocopies of her prescriptions from May 3, 2013,
showing that she received a ninety-pill prescription for Xanax and 120-pill
prescriptions for Soma and hydrocodone.
35
Mother’s MHMR and JPS records, rather than contradicting Mother’s CPS
caseworkers’ concerns, showed that Mother had been hearing voices and
drinking alcohol with her medications contrary to medical advice, providing the
trial court with ample evidence of Mother’s behavior to determine whether her
failure to appropriately treat her mental health issues endangered L.M.F.
From the testimony and other evidence in the record as set out above, the
trial court could have reasonably formed a firm belief or conviction that Mother
had endangered L.M.F. by smoking marijuana during her pregnancy with the
child, by exposing the child to domestic violence prior to the child’s second
removal, and by a consistent pattern of failing to adequately treat her mental
health issues and avoid using alcohol, which would endanger the child’s physical
and emotional safety if the child were returned to her. Therefore, under the
standards of review set out above, we conclude that the evidence is both legally
and factually sufficient to support the trial court’s finding under section
161.001(1)(E), and we overrule Mother’s second issue. See H.R.M., 209 S.W.3d
at 108; J.P.B., 180 S.W.3d at 573; see also In re I.D.J., No. 02-11-00367-CV,
2012 WL 2135579, at *3–8 (Tex. App.—Fort Worth June 14, 2012, no pet.)
(mem. op.) (holding evidence of endangerment under section 161.001(1)(E)
legally and factually sufficient when, among other things, mother smoked
marijuana while pregnant and exposed child to domestic violence prior to the
child’s removal). And because, along with the best interest finding, a finding of
only one ground alleged under section 161.001(1) is sufficient to support a
36
judgment of termination, we do not reach Mother’s first issue with regard to
section 161.001(1)(D). See In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort
Worth 2007, no pet.).
C. Best Interest
In her third issue, Mother argues that the evidence is legally and factually
insufficient to support the trial court’s best interest finding.
While there is a strong presumption that keeping a child with a parent is in
the child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), 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) (West 2008). The
following factors, among others, should be considered in evaluating the parent’s
willingness and ability to provide the child with a safe environment: the child’s
age and physical and mental vulnerabilities; whether there is a history of
substance abuse by the child’s family or others who have access to the child’s
home; and whether an adequate social support system consisting of an extended
family and friends is available to the child. Id. § 263.307(b); R.R., 209 S.W.3d at
116.
Other, nonexclusive factors that the trier of fact in a termination case may
use in determining the best interest of the child include:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
37
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are not
exhaustive; some listed factors may be inapplicable to some cases; other factors
not on the list may also be considered when appropriate. C.H., 89 S.W.3d at 27.
Furthermore, undisputed evidence of just one factor may be sufficient in a
particular case to support a finding that termination is in the best interest of the
child. Id. On the other hand, the presence of scant evidence relevant to each
factor will not support such a finding. Id.
Mother argues that the evidence is legally and factually insufficient to
support the trial court’s best interest finding because “the only credible evidence
was that the child flourished in the mother’s home and any mental health issues
she had did not directly or indirectly impact the child.” In support of her best
interest argument, Mother argues that at CPS’s November 9, 2012 visit to her
home, the child was healthy, clean, and dressed appropriately and that the CPS
38
investigator’s main concern was that L.M.F. did not listen very well to her
parents. Mother contends that nothing in the record showed that L.M.F. suffered
emotional or physical harm in her home and that there was no evidence of
medical neglect, physical abuse, failure to thrive, or health issues. Mother
argues that she attended parenting classes and individual counseling, completed
a drug assessment, made almost all of her visits with L.M.F., and had stable
housing and a meager but steady income but that nothing satisfied DFPS.
The record reflects that Mother was given multiple opportunities to address
her issues, develop the stability needed for a three-year-old child, and
demonstrate her ability to maintain her mental health and that she failed to
accomplish these tasks.24 As set out above, the trial court could have found by
clear and convincing evidence that Mother had failed and would continue to fail
to take care of her mental health and substance abuse issues, and that such
failure was and would continue to be physically and emotionally endangering to
L.M.F. if Mother retained her parental rights to the child. Even discounting the
evidence presented by the CPS and CASA witnesses, Mother’s testimony and
MHMR and JPS records illustrate her inability to understand the connections
between her choices and the outcomes from those choices, as well as her lack of
resources and planning with regard to the child’s physical and emotional safety
24
Mother agreed that she was offered CPS services in Indiana prior to
relinquishing her parental rights to five children, in Texas during her first case
involving L.M.F. between 2010 and 2011, and in the present case that began in
December 2012; she also agreed that she was offered FBSS services in 2012.
39
and needs. See Holley, 544 S.W.2d at 371–72. In comparison, the child had
had a stable placement with M.L. for over half of her life, and based on the record
before us, the trial court could have formed a firm belief or conviction that
adoption by M.L., as planned by DFPS if Mother’s parental rights were
terminated, presented the best option for the child’s physical and emotional
needs, now and in the future. See Tex. Fam. Code Ann. § 263.307(b); R.R., 209
S.W.3d at 116. Therefore, under the standards of review as set out above, we
conclude that the evidence is legally and factually sufficient to support the trial
court’s best interest finding, and we overrule Mother’s third issue. See H.R.M.,
209 S.W.3d at 108; C.H., 89 S.W.3d at 28.
IV. Conclusion
Having overruled all of Mother’s dispositive issues, we affirm the trial
court’s judgment.
PER CURIAM
PANEL: MCCOY, WALKER, and MEIER, JJ.
DELIVERED: May 29, 2014
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