Opinion issued October 1, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00791-CV
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IN THE INTEREST OF E.C.R., A Child
On Appeal from the 314th Judicial District
Harris County, Texas
Trial Court Case No. 2010-04599J
MEMORANDUM OPINION ON REMAND
The relevant factual and procedural background is set forth in two previous
opinions in this case. See In re E.C.R., 390 S.W.3d 22, 24–26 (Tex. App.—
Houston [1st Dist.] 2012), rev’d, In re E.C.R., 402 S.W.3d 239, 240–42 (Tex.
2013). We previously held that legally insufficient evidence supported the
judgment terminating M.R.’s parental rights under section 161.001(1)(O) of the
Family Code. 1 In re E.C.R., 390 S.W.3d at 27. The Supreme Court of Texas
reversed, holding that “abuse or neglect of the child,” as used in subsection O,
“necessarily includes the risks or threats of the environment in which the child is
placed,” which in turn includes “the harm suffered or the danger faced by other
children under the parent’s care.” In re E.C.R., 402 S.W.3d at 248. The Court
remanded for consideration of an issue we did not reach—whether the evidence is
factually sufficient to support the trial court’s finding that termination of M.R.’s
parental rights to E.C.R was in E.C.R’s best interest. We conclude that it is and,
accordingly, we affirm.
Standard of Review
In a factual sufficiency review, “the appellate standard for reviewing
termination findings is whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State’s
allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). By focusing on whether
the factfinder could form a firm conviction or belief, the appellate court maintains
the required deference for the factfinder’s role. Id. at 26. “An appellate court’s
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Section 161.001(1)(O) provides that parental rights may be terminated if the
parent has “failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of the child
who has been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than nine months as a
result of the child’s removal from the parent under Chapter 262 for the abuse or
neglect of the child.” TEX. FAM. CODE ANN. § 161.001(1)(O) (West Supp. 2012).
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review must not be so rigorous that the only factfindings that could withstand
review are those established beyond a reasonable doubt.” Id. We should consider
whether disputed evidence is such that a reasonable factfinder could not have
resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d
256, 266 (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, then the evidence is factually insufficient.” Id.
Applicable Law
In a case to terminate parental rights by DFPS under section 161.001 of the
Family Code, DFPS must establish, by clear and convincing evidence, that (1) the
parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001 (West Supp. 2012). Clear and convincing evidence is “the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” Id.
§ 101.007 (West 2008); In re J.F.C., 96 S.W.3d at 264. “Only one predicate
finding under section 161.001(1) is necessary to support a judgment of termination
when there is also a finding that termination is in the child’s best interest.” In re
A.V., 113 S.W.3d 355, 362 (Tex. 2003).
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There is a strong presumption that the best interest of the child will be
served by preserving the parent-child relationship. In re A.A.A., 265 S.W.3d 507,
516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). “The same evidence of
acts or omissions used to establish grounds for termination under subsection
161.001(1) may be probative in determining the best interests of the child.” Id.
When reviewing whether termination of parental rights is in the child’s best
interest, we may consider, among other factors, the following: (1) the desires of the
child; (2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individual seeking custody; (5) the programs available to
assist the individual to promote the best interest of the child; (6) the plans for the
child by the individual or by the agency seeking custody; (7) the stability of the
home or proposed placement; (8) the acts or omissions of the parent that may
indicate that the existing parent-child relationship is not a proper one; and (9) any
excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976). This list is not exhaustive, and there is no requirement that
DFPS prove all of the factors in order for the court to make a valid finding on the
best interest of the child. In re A.A.A., 265 S.W.3d at 517.
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Analysis
Reviewing these factors, we first consider evidence of E.C.R.’s desires.
M.R. notes that E.C.R. was under the age of two at the time of trial and thus was
unable to express his desires, and DFPS agrees that there is no evidence
concerning the child’s desires in this case. Accordingly, this factor does not weigh
in our analysis.
Next, under the second and fourth Holley factors, we consider the evidence
of E.C.R.’s present and future emotional and physical needs, and the evidence
regarding M.R.’s ability to parent and provide for his needs. E.C.R.’s DFPS
caseworker testified that E.C.R. does not have any special needs and that his
current foster placement is meeting his physical and emotional needs. Regarding
M.R.’s ability to parent and provide for those needs, M.R. concedes that she was
unemployed at the time of trial, did not have stable housing, and had not completed
her psychiatric evaluation or the follow up recommendation from her
psychological evaluation. The record contains evidence confirming that M.R. has
a history of homelessness, is mentally unstable, and has failed to complete a
psychiatric evaluation or attend treatment. Further, the record shows that while she
was incarcerated for physically abusing her daughter, M.R. attempted suicide
twice. Throughout the pendency of this suit, M.R. remained unemployed, and she
has offered no proof of an ability to provide financial support to E.C.R. Thus, the
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evidence regarding these factors weighs in favor of the trial court’s finding that
termination of M.R.’s parental rights was in E.C.R.’s best interest. See In re
C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.) (“Without
stability, income, or a home, appellant is unable to provide for the child’s
emotional and physical needs . . . [and her] unstable life threatens the physical
well-being of the child and may put the child at risk of injury.”); In re J.I.T.P., 99
S.W.3d 841, 846–47 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (finding
evidence that parents could not provide stable environment, were mentally
unstable, did not have a stable residence, and did not maintain consistent
employment supported trial court’s finding that termination of parental rights was
in child’s best interest).
With respect to the third Holley factor, evidence of the emotional and
physical danger to E.C.R. now and in the future, M.R. argues that there is no
evidence that E.C.R. was now in danger or would be in the future. However,
evidence of past misconduct or neglect can be used to measure a parent’s future
conduct. See In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied).
Here, M.R. has lost custody of all of her children. Her oldest child was taken into
DFPS custody based on an allegation of physical abuse, and her parental rights to
that child were later terminated. Additionally, M.R. pleaded guilty to causing
injury to her daughter, and received four years deferred adjudication. The
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evidence related to this factor weighs in favor of the trial court’s best interest
finding. See In re A.M., 385 S.W.3d at 82–83 (concluding that evidence of
mother’s history of neglecting and endangering children by exposing them to
domestic violence supported trial court’s finding that termination was in child’s
best interest).
M.R. asserts that there was “scant testimony” regarding the fifth Holley
factor, programs available to assist her in promoting the best interest of the child.
She argues that the failure to submit her psychological evaluation into evidence
meant that the trial court had no knowledge of the recommendations made in the
evaluation. However, E.C.R.’s caseworker testified that M.R. failed to complete
“big services . . . which she needed,” including a psychiatric evaluation, as ordered,
and psychotherapy, as recommended by her court-ordered psychological
evaluation. M.R. did not object to this testimony. Further, M.R. concedes on
appeal that she had not completed “her psychiatric evaluation or the follow up
recommendation from her psychological evaluation.” Thus, there is some
evidence of programs available to assist M.R., of which she did not avail herself,
and on balance, this factor weighs in favor of the trial court’s best interest finding.
See In re J.I.T.P., 99 S.W.3d at 847 (evidence of mother’s failure to follow therapy
plan as recommended by psychological evaluation weighed in favor of best interest
finding).
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Concerning factors six and seven, in which we examine the plans for the
child by the individual and by the agency seeking custody and the stability of the
home or proposed placement, the record reflects that DFPS’s long term goal for
E.C.R. is unrelated adoption. M.R. notes there was no evidence about DFPS’s
definitive plan for E.C.R.’s permanent adoption and few details about his current
placement. According to M.R., this weighs against termination. But the record
also reflects that E.C.R. is currently doing well in foster care. He and M.R.’s
youngest son are in the same foster home, and his foster parents are meeting his
physical and emotional needs. And we note that “the lack of evidence about
definitive plans for permanent placement and adoption cannot be the dispositive
factor [in a best interest analysis]; otherwise, determinations regarding best interest
would regularly be subject to reversal on the sole ground that an adoptive family
has yet to be located.” In re C.H., 89 S.W.3d at 28; see also In re G.B. II, 357
S.W.3d 382, 384 (Tex. App.—Waco 2011, no pet.) (finding that DFPS is not
required to make permanent placement before party’s parental rights may be
terminated).
M.R. asserts that the eighth Holley factor weighs in her favor, because there
is no evidence of acts or omissions that indicate that the existing parent-child
relationship between herself and E.C.R. is not a proper one, and that the evidence
shows that at the time E.C.R. was removed, he was clean, healthy, and
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developmentally on target. The evidence that E.C.R. was clean, healthy, and
developmentally on target at the time of removal weighs against termination, but
we must also consider the fact that M.R. was charged with, and ultimately pleaded
guilty to, injuring E.C.R.’s sister.
With respect to any excuses for the acts or omissions of the parent, the ninth
Holley factor, M.R. points to the child advocate’s testimony that M.R. was
pregnant for most of the pendency of the case, and that M.R. told her that the
pregnancy was a difficult one which rendered her unable to work. While this
weighs in M.R.’s favor, we note that M.R. introduced no evidence that showed that
she was unable to work during the pregnancy.
M.R. raises two additional factors she claims are relevant to our analysis.
First, she became pregnant with her first child (not E.C.R.) while she was a minor
in DFPS custody. Second, M.R. points to the child advocate’s testimony that her
recommendation if the case went forward at another time might be “different,” but
that on the date of trial, she was recommending termination.
M.R. presented some evidence that weighs against termination; nevertheless,
after considering the entire record, we conclude that the evidence is factually
sufficient for a reasonable factfinder to have formed a firm belief that termination
of M.R.’s parental rights was in E.C.R.’s best interest. In re J.F.C., 96 S.W.3d at
266.
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Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Huddle.
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