in the Interest of K.D.L.M.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-13-00247-CV

IN THE INTEREST OF
K.D.L.M.

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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1
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I. Introduction

In a single issue, Appellant Father appeals the termination of his parental

rights to K.D.L.M. We affirm.

1
See Tex. R. App. P. 47.4.
 II. Procedural Background

After more than one investigation of the family by Child Protective Services

(CPS), the Department of Family and Protective Services (DFPS) filed its original

petition involving K.D.L.M. and his half-sister A.R.Y., and the trial court

authorized the children‘s immediate removal from Father and Mother. DFPS filed

an amended petition after it identified A.R.Y.‘s father, who ultimately signed an

affidavit of voluntary relinquishment and does not appeal the termination of his

parental rights.

At the time of the jury trial, K.D.L.M. was two years old and A.R.Y. was four

years old. Although Father knew about the trial setting, he did not appear.

Father‘s CPS caseworker informed the trial court under oath that Father had told

her three weeks before trial that he would not be attending because he had a

felony warrant out for his arrest.2 Before voir dire, Father‘s counsel informed the

trial court that although he had managed to meet with Father, go over trial

preparation materials, and talk about going to a jury trial,

[s]ubsequent to that time and last week, I left him a voicemail
every day making him aware that trial was to begin here today, that
his failure to appear would not work well in his favor.

The last two days I‘ve attempted to make contact with him, his
voicemail box has been full, and I‘ve been unable to leave a
message.

2
After trial began, Father‘s community supervision officer testified that
Father had a pending felony warrant related to his violation of community
supervision and his failure to appear in court on his criminal case.

2
 I‘ve reached out to his probation officer, and [she] has been
helpful, as much as she can, to facilitate contact between my client
and myself.

I also spoke to [Father‘s] grandmother. I told his grandmother
I‘ve been unable to get in contact with him, he needed to be up here
at trial. She said she would do everything she could to communicate
that to his mother, let him know I was looking for him, for him to be
up here at trial.

Father‘s counsel stated that he was ready to proceed to trial to present Father‘s

case and hold the State to its burden of proof.

Based on the jury‘s verdict and the evidence submitted at trial, the trial

court found that Father had endangered K.D.L.M., constructively abandoned

K.D.L.M., and failed to comply with the provisions of a court order that specifically

established the actions necessary for him to obtain K.D.L.M.‘s return and that

terminating his parental rights was in K.D.L.M.‘s best interest. See Tex. Fam.

Code Ann. § 161.001(1)(D), (E), (N), (O), (2) (West Supp. 2013). The trial court

terminated Father and Mother‘s parental rights to K.D.L.M., and Mother‘s

parental rights to A.R.Y.3 This appeal followed.

III. Termination of Parental Rights

In his single issue, Father argues that although he ―believes the predicate

grounds for termination were sufficiently presented,‖ it is not in the best interest

of the child for his rights to be terminated and that DFPS failed to prove that

termination of his parental rights would be in K.D.L.M.‘s best interest. Father

3
Mother does not appeal the termination of her parental rights to either
child.

3
then requests that we reverse the trial court‘s judgment and render judgment in

his favor. Although Father presents his sole issue as a factual sufficiency

challenge, because the relief he requests is for that of a legal sufficiency

challenge, we will review the best interest determination under both standards.4

A. Standards of Review

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

or conviction as to the truth of the allegations sought to be established.‖ Id.

§ 101.007 (West 2008).

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 challenged ground for

termination was 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.

4
In his conclusion, Father also states that this court should reverse the trial
court‘s judgment and render judgment ―because the underlying cause grounds
fail factually (endangerment grounds) and as a matter of law (failure to comply
with service plan following removal from the parent for abuse or neglect).‖
However, even assuming that he has sufficiently raised these unnumbered
issues for our review, he does not challenge the constructive abandonment
ground under section 161.001(1), and along with a best interest finding, a finding
of only one ground alleged under section 161.001(1) is sufficient to support a
judgment of termination. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re
E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth 2007, no pet.). Therefore,
we will not address his challenges to the other grounds for termination under
section 161.001(1).

4
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.

In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder‘s findings and do not supplant the verdict with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record and as challenged by Father here, a factfinder could reasonably form a

firm conviction or belief that termination of the parent-child relationship would be

in the best interest of the child. Tex. Fam. Code Ann. § 161.001(2); 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.

5
B. Evidence

The record reflects that before and during the instant case, Father, Mother,

and Father‘s mother D.W. experienced serious mental health issues and used

illegal drugs.5 D.W. also had an earlier CPS history, and she threatened CPS

workers during the case, resulting in her arrest in April 2013.6

Father and Mother were eighteen years old when A.R.Y. was born in

November 2009, and other than the two or three weeks that Father worked at a

fastfood restaurant, neither parent maintained employment during any of CPS‘s

investigations. Both had dropped out of high school and were completely

dependent on others for support.7 Father had a history of attempting suicide, had

5
Mother was diagnosed bipolar, started using marijuana when she was
fourteen years old, and started using methamphetamine when she was sixteen
years old. She switched from marijuana to K2, a synthetic marijuana that cannot
be detected by a hair follicle drug test, because of CPS‘s involvement. Mother
started using heroin after K.D.L.M. was born.

Mother described Father as a ―mama‘s boy‖ and said that D.W. was insane
and gave ―bipolar a whole new meaning,‖ that her behavior was unpredictable,
and that she would pick fights that ―didn‘t even make sense,‖ particularly when
she was drinking. Ashton Moore, the CPS caseworker, testified that D.W. initially
refused to comply with a drug test prior to K.D.L.M.‘s removal; when D.W.
ultimately complied with a drug test, she tested positive for marijuana.
6
D.W. filed a petition in intervention at the beginning of the case but
nonsuited during the same month that she was arrested for threatening CPS
workers.
7
According to Mother, Father‘s grandmother was very wealthy and gave
Father and D.W. a monthly allowance. When asked whether one of the reasons
she had stayed with Father was so that she could continue to have access to his
family‘s money, Mother stated, ―I wouldn‘t put it that way, but in different words,
yes.‖

6
started using marijuana when he was eleven years old, and had started using

harder drugs by the time he was fifteen years old. We have set out the

chronology of this case below, followed by specific testimony pertaining to the

best interest factors.

1. 2010

CPS began its first investigation in February 2010. During that

investigation, A.R.Y. tested positive for marijuana, Mother told Tina Harris, the

CPS investigator, that she and Father had used marijuana together, and

marijuana was found in the bed where A.R.Y. had been sleeping. Mother was

arrested for possession of marijuana and received community supervision.

Instead of removing A.R.Y. from Mother,8 CPS provided Family-Based

Safety Services (FBSS) to her to reduce the risk in the home and prevent the

necessity of future CPS intervention. These services included a substance

abuse assessment, a psychological evaluation, counseling, and parenting

classes. Father was not offered FBSS services because Mother told Harris that

she and Father had broken up, and Father lied about his involvement with

Mother. The first FBSS case lasted twelve to thirteen months instead of the

usual three to six months because Mother tested positive for marijuana in

October 2010.

8
A.R.Y. primarily lived with Mother‘s grandparents until her placement in
foster care a month or so before the termination trial with the grandparents‘
agreement.

7
 2. 2011

On February 28, 2011, a misdemeanor complaint issued against Father for

possession of two ounces or less of marijuana on or about January 28, 2011.

Father was subsequently indicted for having, on or about the same day in

January, intentionally or knowingly threatened harm in retaliation for someone

having reported the occurrence of a crime.

In April 2011, Mother gave birth to K.D.L.M. K.D.L.M.‘s hospital records

reflect that a registered nurse witnessed Father cursing and threatening Mother

and being verbally abusive to a floor nurse. Mother told the nurse that Father

had a temper problem. Later that month, Harris investigated allegations that

Mother and Father were smoking marijuana, that Father was using heroin, and

that they were engaging in domestic violence. Mother, K.D.L.M., and Father

were living with D.W. and D.W.‘s teenage daughter at the time, and Mother told

Harris that D.W. had been using marijuana and abusing pills. D.W. threatened

Harris.

During the investigation, Mother, who was still on community supervision,

denied having used drugs, and her hair follicle drug test was negative; she also

denied any domestic violence and told Harris that while Father had used heroin

in the past, he was not presently using it. Father denied using drugs or having

any suicidal ideation. A month later, Father kicked Mother out and kept K.D.L.M.

for the child‘s safety, and Mother admitted to her community supervision officer

that she had used marijuana. In June or July 2011, the case closed after CPS

8
could not validate whether the children had been abused or neglected, and

Father‘s grandmother bought the couple a house.

3. 2012

Another misdemeanor complaint issued against Father for possession of

two ounces or less of marijuana alleged to have occurred on or about April 20,

2012, and sometime before September 2012, Mother and Father sold the house

for $50,000. They bought a dilapidated trailer for $25,000, and with the

remaining sales proceeds, they bought a car for $11,000, took the children

shopping, and stocked up on diapers, formula, food, and toys. They spent the

remaining $4,000 or $5,000 on drugs.

Mother said that she started using heroin to handle the stress caused by

the trailer‘s condition and that for two months, she shot up several times a day

while caring for the children. Father bought the heroin for her from his ―people,‖

while she sat in the car and waited if she went with him to get it. Mother said that

Father used heroin on and off. When they first started using heroin, they were

only spending a couple of hundred dollars a week on it, but towards the end, they

spent around $700 per week. Mother said that D.W. had used heroin with her

and Father after K.D.L.M. was born and that D.W. bought the heroin with money

that Father‘s grandmother gave her.9 Mother also suspected that Father had

sold drugs.

9
Moore, the CPS caseworker, said that Father‘s grandmother was not
approved as an appropriate placement for K.D.L.M. because she was not willing
9
 On September 21, 2012, CPS began another investigation after receiving

a referral about Mother‘s drug and alcohol use and mental health when Mother

went to the emergency room at the Presbyterian Hospital in Denton at 1:58 a.m.

after drinking two 1.75 liter bottles of vodka in two days to cope with her heroin

withdrawal. Mother was transferred to Millwood Hospital for psychiatric care,

where a CPS investigator interviewed her. Mother told the investigator that she

and K.D.L.M. had been living with D.W. and that she and Father had been

together since her pregnancy with A.R.Y.

CPS investigator Shanna Hartley spoke with D.W. about her drug history,

her CPS history, her mental health history, her criminal history, and how she had

obtained possession of K.D.L.M. D.W. told her that only she and K.D.L.M. lived

in the house, and she did not provide Hartley with any information on how to find

Father. Based on CPS‘s information about D.W., Hartley was concerned about

leaving K.D.L.M. in her care.

On September 28, 2012, Father pleaded guilty to the 2011 retaliation

charge, a third-degree felony, and received three years of deferred adjudication

community supervision. Father was placed on the ―intensive supervision‖

caseload for this offense. Hartley said that she eventually made contact with

Father and met with him at his attorney‘s office to determine whether Father

could provide safe, stable, appropriate housing for his child.

to separate herself and K.D.L.M. from D.W. and she did not believe that D.W.
had any problems.

10
 Father told Hartley that he had dabbled with heroin a few times but that he

was able ―to pick it up and put it down,‖ unlike Mother. He said that D.W. had

picked up K.D.L.M. because Mother ―was being psychotic‖ and that he had been

caring for the children on a regular basis, getting up early with them because

Mother had been sleeping until 1 p.m. due to her drug use. Father also told

Hartley that he had been taking care of Mother for around three years but that

during the FBSS case, they pretended not to be involved ―so it wouldn‘t mess up‖

her case.

Hartley said that based on Father‘s statements about his drug use and

Mother‘s statements about his drug use and D.W.‘s drug use,10 she did not

believe that Father could provide a safe environment for K.D.L.M. Because of

D.W.‘s mental health issues and drug use, CPS also believed that K.D.L.M.

would be in imminent danger if left in D.W.‘s care. CPS removed K.D.L.M. and

placed him into foster care; A.R.Y. remained with her maternal grandparents.

Mother told Hartley that she was afraid of D.W. because ―she had seen

things done to people that had done [D.W.] wrong.‖ Hartley said that she was

also afraid of D.W. and took her threats seriously and that DFPS had taken

actions to protect its workers based on D.W.‘s threats.

Hartley said that she frequently had to go through Father‘s attorney to

speak to Father because Father would not provide a good contact phone number

10
Mother told Hartley that she had used heroin, marijuana, K2, and alcohol
with D.W. and Father.

11
or his address and that he would often hang up the phone on her when he lost

his temper. CPS was unable to perform a hair follicle drug test on Father

because he cut his hair short before the drug test, leaving insufficient hair to

provide the sample. Hartley said that at the conclusion of her investigation, CPS

determined that there was ―reason to believe‖ the allegation of neglectful

supervision of the children as to both Mother and Father but that CPS was

―unable to determine‖ the truth of the allegation with regard to D.W.

Mother was arrested in October 2012 for violating her community

supervision by failing a drug test. Mother said the last time Father was violent

with her was before she went to jail in October 2012.

Father received his service plan in November 2012, and Mother and

Father lived together from November to January 2013. Father‘s community

supervision officer Christine Martin testified that Father was ordered to complete

a number of courses that overlapped with his CPS service plan, including an

anger management class, a mental health evaluation, and a drug and alcohol

evaluation. Martin and Moore each testified that they tried to coordinate Father‘s

CPS services with his community supervision to make sure that he would not

have to perform duplicate services. Martin testified that Father had many

conversations with her about his CPS situation, including that he loved his son

and wanted him back, but that Father never accepted any responsibility for

K.D.L.M.‘s removal.

12
 On December 19, 2012, Father pleaded nolo contendere to both his

January 28, 2011 and his April 20, 2012 misdemeanor possession-of-marijuana

charges and received twenty-four months of deferred adjudication community

supervision. A day later, the State filed a motion to proceed to Father‘s

adjudication of guilt on the retaliation offense, alleging that, among other things,

Father had failed to report to his community supervision officer on several

occasions, failed to begin his 160 hours of community service, failed to complete

a drug and alcohol evaluation, and failed to participate in an anger management

course as directed by the trial court. Martin testified that in addition to the

allegations, Father had admitted to her that he had used marijuana, and he

refused to take a drug test on several occasions.

4. 2013

Moore described the relationship between Mother and Father as ―volatile‖

and said that in February 2013 during a visit at the CPS office and in the

children‘s presence, Father had talked about how many people Mother had slept

with during the course of their relationship and had called Mother inappropriate,

vulgar names. Father accused Mother of sleeping with other people,11 and

Moore had to intervene multiple times during the visit to ask them to act like

adults. In discussing the incident, Mother agreed that Moore had had to

11
Mother was pregnant at the time of the trial but Father was not the
unborn child‘s father.

13
intervene and said, ―[Father] doesn‘t know how to wait, he doesn‘t know how to

wait to talk about things.‖

During the same visit, D.W. attempted to assault Mother. After that

incident, and after the trial court ordered D.W.‘s visits ended, D.W. began issuing

threats to CPS, including calling Moore to threaten her life, and Mother said that

D.W. had threatened to kidnap K.D.L.M. from his foster home. Moore said that

D.W. had made the kidnapping threats to her as well.

When Moore drove Father to take a drug test on March 8, 2013, Father

admitted to her that he had been dealing drugs and told her that he preferred to

deal methamphetamine because that was $350 per bag, while marijuana was

only $100 per bag. Father told Moore that he would sell anything he got his

hands on because that was how he survived. Moore said that she believed that

Father understood what was expected of him in the case, what the trial court‘s

orders were, and that his parental rights to K.D.L.M. were at stake.

Moore said that after Father‘s last visit with K.D.L.M., she helped the

transporter put the children in the car, and as the transporter started driving

away, she saw Father and D.W. start to follow the transporter‘s car. Moore

called the police about this because D.W. had previously threatened to kidnap

the child.

Father signed a drug use admission stating that he had possessed and

used marijuana on May 18, 2013, and a capias for Father‘s arrest for failure to

appear was issued by the trial court hearing his criminal case on May 31, 2013.

14
Mother told Moore in June 2013 that Father was using drugs. The termination

trial began at the end of June.

5. Father’s CPS Service Plan

Father reviewed his CPS service plan with Moore in November 2012.

Among other things, the plan required Father to attend and cooperate with

weekly counseling sessions; participate in ―The Fatherhood FOCUS‖ classes;

complete a drug and alcohol assessment; participate in AA/NA meetings five

times per week and provide his caseworker with sign-in sheets; undergo a

psychiatric evaluation; submit saliva, urine, and hair follicle samples for random

drug testing; establish and maintain safe, stable, and appropriate housing and

suitable employment for at least six months and during the pendency of the case;

refrain from engaging in any and all criminal activities; comply with the terms of

his probation; and participate in supervised visitation with K.D.L.M. for one hour

every week at the Denton CPS office. The trial court expressly made the service

plan a court order.12

Moore said that she discussed the service plan with Father and made sure

that he understood what was expected but that Father did not sign the service

plan. The trial court admitted Petitioner‘s Exhibits 5, 6, and 35, which were

12
As of the March 7, 2013 and May 30, 2013 permanency hearings, the
trial court had found that Father had not demonstrated adequate and appropriate
compliance with the service plan.

15
Father‘s service plan, the one-page list of services that Moore drew up to make it

easier for him to understand, and the CPS service authorizations.

Father barely started his service plan. He never participated in his drug

and alcohol assessment, although he did participate in one of the fatherhood

classes and a couple of counseling sessions. Moore stated that Father had been

ordered to participate in a psychiatric evaluation because throughout the case,

―he began having some very concerning psychiatric symptoms and so it was

deemed necessary for him,‖ but Father did not participate in the psychiatric

evaluation, and he refused to submit to drug tests ―[e]very time but two.‖ Moore

said that up until March 8, 2013, when CPS transported Father to take a drug

test to make sure that he would submit, she did not believe that Father was

changing his lifestyle because of ―[h]is inconsistency with visits, his frequent

mood swings and agitations. He was very dependent on everybody in his life.‖

Father reported that he was homeless between September 24, 2012, and

February 8, 2013, but Moore believed that he had been staying with D.W.

During Father‘s visits with K.D.L.M. in the first months of the case, Moore

said that Father would hold K.D.L.M. the entire hour ―and just cry and tell him,

‗I‘m your Daddy, I love you, I love my baby boy, you‘re so pretty,‘ and just repeat

those phrases for an hour while holding [K.D.L.M.].‖ Moore said that Father

transitioned to doing this for only half an hour, then fifteen minutes, and ―then

weaned himself off of crying the entire visit.‖

16
 Father played with the children and did better in the visits than Mother

because ―[h]e was more attentive to them and did the things they wanted to do.‖

However, Father did not visit K.D.L.M. again after the February 2013 visit until his

last visit in May. At this visit, K.D.L.M. did not recognize Father. When Father

asked K.D.L.M. if he loved Father and wanted to go home with him, K.D.L.M.

shook his head and said no. When Father asked K.D.L.M. for a hug, K.D.L.M.

refused, and Moore said that it appeared that K.D.L.M. had forgotten about

Father after he failed to visit for three months. Father only attended fourteen out

of a possible thirty-four visits with K.D.L.M.

6. Father’s Behavioral and Mental Health Issues

Mother testified that Father had a terrible temper and had physically

assaulted her but also that when he was not angry, he was a fun and amazing

father. When asked where the children were when Father was physically violent

with her, Mother said that they were in the house but did not see it, stating, ―I

don‘t know, but they weren‘t around us. [Father] might have been stupid, but he

was never stupid enough to do it around the kids.‖ Mother said that Father would

never hurt the children, even though she agreed that he had had periods of

mental instability and was unable to control his rage. Mother said that they would

fight behind closed doors so that the children could not see them arguing, even

though their arguments included yelling and screaming, and that she was afraid

to call the police on Father or D.W. because they told her that she ―would be

taken care of‖ if she did. Mother agreed that Father used profanity in front of the

17
children, and she acknowledged that it was possible that the children had heard

her and Father argue at home. She also acknowledged that her relationship with

Father was toxic and said that ―[a]s long as [Father] isn‘t around, I know [the

children] will grow up and be happy, stress-free.‖

Mother stated that K.D.L.M. loved Father and only knew his ―loving, caring

side,‖ that Father loved K.D.L.M., and that Father could be a good parent once

he was away from D.W. However, she also stated that she did not believe

Father could appropriately parent K.D.L.M. ―[b]ecause he will not let himself get

out from under his mother‘s wing.‖

Martin, Father‘s community supervision officer, said that over the course of

monitoring Father from February 1, 2013, Father‘s mental condition had

deteriorated. She described Father as follows:

[Father], to me, seemed a bit paranoid. He made accusations
against CPS that were highly irregular, for lack of better terms.

He would come into my office and break down in tears and
then he would leave my office cursing and yelling and screaming.
Just the erratic fluctuation of his moods just in the 30 or 40 minutes
that he would report that I would see that would cause me to believe
that he was using drugs.

....

[Father] told me that CPS was trying to kill him. [Father]
believed that CPS was having him followed in a vehicle, attempting
to run him off the road and causing him personal injury.

[Father] believed that CPS had an involvement in a dog, a
personal dog of his being killed and placed inside his backyard.

18
 He went so far as saying that CPS had a high ranking judge
killed because they were looking into CPS. He went as far as saying
they were government-sanctioned kidnappers.

Martin said during their May 24, 2013 visit, Father did not appear to be in a fit

state to care for a child.

Father told Martin that he and D.W. often argued loudly and would

physically fight, and he showed her where D.W. had bitten him on the upper

chest. Martin had Father‘s prescription proofs in her file—Father had

prescriptions for Quetiapine, an antipsychotic; Lamotrigine, an anticonvulsant;

Diazapam for anxiety; and Ropinirole for tremors and shaking. Martin said that in

February 2013, Father acknowledged that he was glad that CPS had finally seen

some of D.W.‘s behaviors that he had grown up with and said ―that he was happy

that the child would never be returned to her.‖

Moore said that Father would call her constantly between 6:30 a.m. and

7:30 a.m. and if she did not pick up, he would fill up her voicemail box so that no

one else could contact her, so she answered so that she would be able to talk to

other CPS clients throughout the day. She said that during the case, Father

continued to use drugs, had weird moods, missed visits, behaved badly, and

continued his ―back and forth with [Mother].‖

7. Endangerment

Mother‘s counselor Melissa Beard explained that instability in a parent‘s

romantic relationships can cause instability in the children‘s emotional well-being

and that a parent‘s drug use can be endangering to young children, as can

19
domestic violence or even yelling and screaming. Beard stated, ―Children create

their basis for their own relationships through the example of their parents‘

relationship. If it is unstable or rocky, it can produce unstable relationships after

that.‖

Harris, who investigated the first two CPS referrals, testified that a parent‘s

taking of illegal drugs to deal with mental illness was endangering to children

because both the drugs and the illness were volatile and putting them together

without knowing how they would mix could trigger a lot of harm. Harris said that

taking mental health medications along with illegal drugs could also result in a

toxic combination.

Mother said that she had never seen Father sober, that he had often been

under the influence of some sort of drug while in the children‘s presence, and

that it was physically and emotionally dangerous to the children for Father to be

on drugs while in the children‘s presence. Mother said that Father had used

methamphetamine during the three months they were together during the case

and in April 2013. Mother also stated that prior to the children‘s removal, the

children always came first and that ―[i]f it came to us getting high or our kids

needed diapers, we found a way to get diapers and then get high.‖

Moore testified that DFPS wanted the jury to terminate Father‘s parental

rights because he could not provide a safe and stable environment for K.D.L.M.

and because he had failed to comply with any services, had continued to abuse

drugs, and continued ―to have extreme mental health instability.‖ Further, Moore

20
testified, ―[Father] has stated that he isn‘t able to take care of the kids, [K.D.L.M.]

specifically. He has endangered the children in the past and isn‘t appropriate for

them.‖ As to both parents, Moore stated, ―They‘re not doing services, they‘re not

consistent on anything. They‘re not meeting their own needs. They‘re continuing

to be involved in criminal activity.‖ DFPS‘s plan for the children was for them to

be adopted by their foster parents.

8. Foster Parents

Sarah,13 K.D.L.M. and A.R.Y.‘s foster mother, testified that she had been a

licensed foster parent since October 2012, which required over twenty hours of

training in first aid, CPR, behavior intervention techniques, and infant care. She

and her husband, who had been married for around twelve years, had to pass a

background check to become foster parents, and they were dual-licensed to

foster and adopt. Both Sarah and her husband had college degrees and had

worked outside of the home in professional careers for several years. K.D.L.M.,

their first foster child, was placed in their home on October 25, 2012, after he was

transferred from his first foster home.14 Moore testified that K.D.L.M. had made

great strides in his foster home.

13
We use a pseudonym for the foster mother‘s name to protect the
children‘s identities. See Tex. R. App. P. 9.8 & cmt.
14
K.D.L.M.‘s initial foster placement had been unable to handle his
behavioral issues: acting out by hitting, kicking, and biting, aggression involving
the other children in the first foster home, and picking up imaginary objects.
K.D.L.M. also threw extremely long tantrums that were not typical for an
eighteen-month-old child, characterized by uncontrollable rage and screaming at
21
 A.R.Y. was formally placed with K.D.L.M. in the foster home on May 18,

2013, after a gradual transition period.15 Moore said that A.R.Y. was learning to

share and get along with K.D.L.M. Mother acknowledged that both of the

children were very happy in the foster home.

Sarah said that based on her experience with raising a child of K.D.L.M.‘s

age, K.D.L.M.‘s tantrums were more serious when he was first placed with her

than those of a usual eighteen-month-old; he would throw himself onto the floor

and bang his head on the floor while screaming. Sarah said that K.D.L.M. was

very smart and curious, that his temper tantrums were now the normal ones that

two year olds have, and that he was able to speak clearly and verbalize his

feelings instead of acting out. K.D.L.M. called Sarah and her husband ―Mommy

and Dada.‖ Since being placed in the foster home, K.D.L.M. had not asked for

Mother or Father.

Sarah said that she and her husband loved the children and that if

K.D.L.M. and A.R.Y. were free for adoption, she and her husband wanted to

adopt them and were willing to maintain a relationship with Mother‘s

the top of his lungs for hours at a time. K.D.L.M. was taken to the emergency
room, where medical professionals gave recommendations on how to address
his behavioral issues. CPS tested K.D.L.M. for drugs using a hair follicle test, but
his test was negative for the substances that CPS tested for.
15
Mother‘s grandparents did not believe, given their health and age, that
they would be able to provide for A.R.Y. until she was eighteen years old and
they were in agreement with CPS about placing her in the foster home with
K.D.L.M.

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grandparents. Sarah stated that A.R.Y. and K.D.L.M. were learning to share toys

and interact as normal siblings and that they were ―very bonded and get along

great.‖

C. Applicable Law

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 abusive

or assaultive conduct by the child‘s family or others who have access to the

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

or others who have access to the child‘s home; the willingness and ability of the

child‘s family to seek out, accept, and complete counseling services and to

cooperate with and facilitate an appropriate agency‘s close supervision; the

willingness and ability of the child‘s family to effect positive environmental and

personal changes within a reasonable period of time; 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:

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 (A) the desires of the child;

(B) the emotional and physical needs of the child now and in the
future;

(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) (citations omitted).

These factors are not exhaustive; some listed factors may be inapplicable

to some cases. 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.

D. Analysis

Father argues that although DFPS elicited testimony that its plan was for

adoption by the foster placement, there was no guaranty that the foster parents

would adopt the child or maintain a relationship with K.D.L.M.‘s maternal

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grandparents, making DFPS‘s plan for the child ―unclear and illusory at best.‖ He

also complains that the CPS caseworker‘s statements that Father‘s parental

rights should be terminated because he had failed to comply with services, had

continued to abuse drugs, and had extreme mental health instability were

conclusory, lacked foundation, and had no basis in the record for support other

than Mother‘s statements about his drug use.

We disagree that Moore‘s statements were conclusory in that, as set out

above, Moore gave considerable elaboration on her conversations with and

observations of Father. Further, Mother‘s testimony corroborated far more than

just Father‘s drug use, and Father‘s community supervision officer also testified

about Father‘s drug use, his mental deterioration, and his unhealthy relationship

with D.W.

Father spent most of the case living with D.W. or homeless, neither of

which presented a safe environment for K.D.L.M. Father had drug and mental

health problems that prevented him from providing a safe environment for

K.D.L.M. and created physical and emotional impediments to his ability to act in

K.D.L.M.‘s best interest. These impediments included, but were not limited to,

his criminal activities, which prevented him from appearing at the termination

trial. See Tex. Fam. Code Ann. § 263.307(b). D.W., Father‘s mother and

primary support during the case, had a history of making threats and physically

assaulting Father and others, as well as drug and mental health issues of her

own, and neither Father nor D.W. appeared willing to make the necessary

25
changes in their lifestyles to enable K.D.L.M.‘s return. See id. Therefore,

viewing all of the evidence in the light most favorable to the finding and judgment,

we conclude that the jury could have reasonably formed a firm belief or

conviction that termination of Father‘s parental rights would be in K.D.L.M.‘s best

interest. See J.P.B., 180 S.W.3d at 573. Because the evidence is legally

sufficient to support the best interest finding, we overrule this portion of Father‘s

sole issue.

Further, although K.D.L.M., a two-year-old child, was unable to express his

desires at trial, Moore testified that he had made great strides in the foster home,

his foster mother said that K.D.L.M. had stopped acting out, and Mother

acknowledged that both K.D.L.M. and his half-sister were happy together in the

foster home. K.D.L.M. did not recognize Father during their last visit, and he

called the foster parents ―Mommy and Dada.‖

The record reflects that the foster parents had jobs and a stable

relationship, loved the children, and wanted to adopt them and keep them

together. See Holley, 544 S.W.2d at 371–72. In contrast, Father and Mother

had a toxic relationship, the instability of which presented both physical and

emotional danger to K.D.L.M., even though Mother testified that Father would

never hurt the children despite having physically assaulted her. See id. The

toxicity of their relationship was further aggravated by their drug use to treat their

mental health issues, both of which continued throughout the case. See id.

Father failed to take the measures necessary to secure the return of the child to

26
him despite his community supervision officer‘s and CPS caseworker‘s efforts to

make it easier for him, and he stopped visiting the child for three months. Giving

due deference to the jury‘s finding and having reviewed the entire record, we

conclude that the jury could have reasonably formed a firm conviction or belief

that terminating Father‘s parental rights to K.D.L.M. was in the child‘s best

interest. See H.R.M., 209 S.W.3d at 108; In re S.B., 207 S.W.3d 877, 887–88

(Tex. App.—Fort Worth 2006, no pet.) (―A parent‘s drug use, inability to provide a

stable home, and failure to comply with his family service plan support a finding

that termination is in the best interest of the child.‖). Because the evidence is

factually sufficient to support the best interest finding, we overrule the remainder

of Father‘s sole issue.

IV. Conclusion

Having overruled Father‘s sole issue, we affirm the trial court‘s judgment.

PER CURIAM

PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.

DELIVERED: November 27, 2013

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