in the Interest of J.-M. A.Y., a Minor Child

ACCEPTED
01-15-00469-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/18/2015 11:32:22 AM
CHRISTOPHER PRINE
CLERK

No. 01-15-00469-CV
__________________________________________________________
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
FOR THE FIRST JUDICIAL DISTRICT8/18/2015 11:32:22 AM
OF TEXAS AT HOUSTON CHRISTOPHER A. PRINE
Clerk
__________________________________________________________

IN THE INTEREST OF
J-M. A.Y., Child
__________________________________________________________

J.J.K. Appellant

v.

DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee
__________________________________________________________

APPEALED FROM THE 313th DISTRICT COURT OF HARRIS COUNTY,
TEXAS, Trial Cause No. 2014-01481J
__________________________________________________________

APPELLEE’S BRIEF

VINCE RYAN, COUNTY ATTORNEY
State Bar #99999939
By: Sandra Hachem
State Bar No. 08667060
Assistant County Attorney
1019 Congress, 17th Floor
Houston, Texas 77002
Telephone: (713) 274-5293
Facsimile: (713) 713/437-4700
Email: sandra.hachem@cao.hctx.net
ATTORNEY FOR APPELLEE,
DEPARTMENT OF FAMILY &
PROTECTIVE SERVICES

ORAL ARGUMENT REQUESTED [If Deemed Necessary]
 TABLE OF CONTENTS

Table of Contents ...................................................................................................... ii

Index of Authorities ................................................................................................. iii

Statement of the Case ................................................................................................. v

Reply Point ................................................................................................................. v

Statement of Facts ...................................................................................................... 1

Summary of Argument ............................................................................................. 19

Argument and Authorities ........................................................................................ 22

REPLY POINT: The evidence sufficiently supported the court’s
decision to terminate JJK’s parental rights ...................................................... 22

1) Applicable Law and Standard of Review ............................................ 22
2) The undisputed evidence of JJK’s pattern of illegal drug
activities, before and after her children were born, as well as
after they came in State care, provided sufficient proof that she
endangered her children for findings under Subsections (D)
and (E) of Section 161.001(1) of the Family Code. .............................. 25
3) Though review of O ground is unnecessary JJK’s admission
that she violated her court ordered service plan by engaging in
illegal drug use and failing to complete tasks supported the
court’s finding under subsection (O). ................................................... 29
4) The evidence supporting the court’s findings under
Subsections D, E and O of Section 161.001(1) of the Family
Code adequately supported the court’s finding that
termination was in the children’s best interest. ................................... 30
Prayer for Relief ....................................................................................................... 34
Certificate of Service ............................................................................................... 34
Certificate of Compliance With Word Count ........................................................... 35
Appendix ......................................................................................................(attached)

ii
 INDEX OF AUTHORITIES

CASES PAGE

In re A.L.W., No. 01-14-00805-CV, 2015 WL 4262754
(Tex. App.―Houston [1st Dist.] 2015, no pet.) (mem. op.) ................................. 31

In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)......................................................22, 29

In re B.B., 971 S.W.2d 160 (Tex. App.―Beaumont 1998, pet. denied) .................. 26

In re B.H., No. 01-10-00415-CV, 2011 WL 4501940 (Tex. App.―Houston
[1st Dis.] 2011, no pet.) (mem. op.) ........................................................................ 28

In re C.H., 89 S.W.3d 17 (Tex. 2002) ..........................................................23, 24, 33

Callahan v. Brazoria County Child Prot.Servs. Unit., 2003 WL 2199952
(Tex. App.―Houston [1st Dist.] 2003, no pet.) (mem. op.) .................................. 28

In re D.J.W., 394 S.W.3d 210 (Tex. App.―Houston [1st Dist.]
2012, pet. denied). ................................................................................................ 27

In re E.A.F., 424 S.W.3d 742 (Tex. App.―Houston [14th Dist.]
2014, pet. denied) ............................................................................................23, 29

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), ....................................................... 30

IKB Indus (Nigeria) Ltd. v. Pro Line Corp., 938 S.W.2d 440 (Tex. 1997). ............. 23

In re I.R., No. 14-14-00626-CV, 2014 WL 6854747 (Tex. App.―Houston
[14th Dist.] 2014, no pet.) ...................................................................................... 32

In re. J.F.C., 96 S.W.3d 256 (Tex. 2002) ...........................................................23, 24

In re J.O.A., 183 S.W.3d 336 (Tex. 2009)................................................................ 27

Jordan v. Dossey, 325 S.W.3d 700 (Tex. App.―Houston
[1st Dist.] 2010, pet. denied) .................................................................................. 33

iii
In re J.T.G., 121 S.W.3d 117 (Tex. App.―Fort Worth 2003, no pet.)...................... 28

Latham v. Dep’t of Family & Protective Servs., 177 S.W.3d 341
(Tex. App.―Houston [1st Dist.] 2005, no pet.)..................................................... 27

P.W. v. Dept of Fam. & Prot. Servs., 403 S.W.3d 471
(Tex. App.―Houston [1st Dist.] 2013, pet. dism’d w.o.j.) ................................... 32

In re S.R., No. 14-14-00393-CV, 2014 WL 5898453 (Tex. App.―
Houston [14th Dist.] 2014, no pet.) ....................................................................... 28

Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex.1987) ........................ 25

In re D.J.W., 394 S.W.3d 210, 221 (Tex. App.―Houston [1st Dist.] 2012, pet. denied)

STATUTES

Tex. Fam. Code Ann. § 101.007 (West 2008) .......................................................... 24

Tex. Fam. Code Ann. § 161.001 (West 2008) ................ v, 19, 20, 22, 23, 24, 29, 30

Tex. Fam. Code Ann. § 263.307 (West 2008) ....................................................30, 31

RULES

Tex. R. Civ. P. 306 ................................................................................................ v, 23

iv
 STATMEMENT OF THE CASE

This brief responds to the brief brought by JJK1 from a parental termination

judgment. CR2 77. On April 29, 2015, after a full bench trial, the trial court signed

a judgment that terminated the parental rights of JJK, TC and JY3 and appointed

the Department as the child’s sole managing conservator.4 CR 78-80. Per Tex. R.

Civ. P. 306, the judgment recited that the parental rights of JJK were terminated

because it was in the child’s best interest and based on Texas Family Code

§161.001(1)(D), (E), and (O). CR 78-80. On May 19, 2015, JJK filed a timely

notice of appeal. CR 108. No motion for new trial was filed and no other parent

filed a notice of appeal. In this appeal, the Appellant’s brief of JJK challenges the

sufficiency of the evidence to support the findings under Section 161.001(1)(E)

and (2) of the Family Code to warrant parental termination, but does not challenge

the court’s findings under Section 161.001(1)(D) and (O) or the court’s decision to

appoint the Department as sole managing conservator.

REPLY POINT

The evidence sufficiently supported the court’s decision to terminate JJK’s
parental rights.

1
In this brief, “JJK” refers to the mother, the appellant in this case.
2
In this brief, “CR” refers to the Clerk’s Record filed in this appeal.
3
In this brief, “TC“ and “JY” refer to the two fathers in this case. They did not appeal.
4
The decree also denied all relief sought by the intervenor, RJ. CR 79. RJ did not appeal.

v
 No. 01-15-00469-CV
__________________________________________________________

IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT
OF TEXAS AT HOUSTON
__________________________________________________________

IN THE INTEREST OF
J-M. A.Y., Child
__________________________________________________________

J.J.K. Appellant

v.

DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee
__________________________________________________________

APPELLEE’S BRIEF

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Department of Family & Protective Services, Appellee, [hereinafter

“Department”] submits this brief in response to the Appellant’s Brief of JJK.

STATEMENT OF FACTS

In the early spring of 2007, JJK gave birth to a son (TJC).5 RR-46 p. 12. TC

was listed on the birth certificate as the child’s father. RR-4 p. 12. When their son

was born, JJK was almost 20 years old and TC was about 24. RR-4 p. 12 (JJK:

5
In this brief, “TJC” refers to the first child born by JJK in 2007.
6
In this brief, “RR-4” refers to the fourth volume of the reporter’s record which has the exhibits
admitted at trial.

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DOB 1/25/87; TC: DOB 1/25/1987). JJK was not married to TC but they had an

ongoing relationship and she was with him until she was five months pregnant.

RR-37 p. 23.

TC and JJK would use marijuana together. RR-3 p. 90. TC had been using

marijuana since he was about 21. RR-3 p. 91. Not surprisingly, as a consequence,

he had long history of drug related convictions related to marijuana even before he

met JJK. RR-4 p. 91; RR-4 p. 80-82 (2005 possession marijuana); RR-4 p. 85

(2006 possession marijuana); RR-4 p. 96 (2003 possession marijuana); RR-4 p.

100-02 (2000 possession marijuana); RR-4 p. 110-12 (possession marijuana on

school premises). He got his first conviction for drug related activities after their

son was born on September 27, 2008 when he was arrested for concealing

marijuana with intent to impair its availability. RR-4 p. 73.

About a month later, on October 25, 2008, when their son was less than a

year old, TC painfully struck JJK with pool equipment and several employees had

to stop him from committing further violence. RR-4 p. 90. The father was

subsequently charged with assault causing bodily injury-family violence. RR-4 p.

90. It was noted on his complaint that he also had related cases for “criminal

mischief, evading arr … and interference w/emg call.” RR-4 p. 90.

The next month, TC pled guilty to his earlier tampering with evidence

7
“RR-3” refers to the third volume of the reporter’s record – the transcript of testimony from
trial.

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charge and received 90 days in the county jail under the terms of a plea bargain on

November 13, 2008. RR-4 p. 76. About eight months later, on June 8, 2009, TC

was arrested for possessing a controlled substance (alprazolam) in a drug-free zone

of a high school. RR-4 p. 58. He was also arrested for possessing marijuana. RR-

4 p. 64. He later pled guilty on both and received jail time. RR-4 p. 60 and p. 66.

In August 2009, the child’s mother (JJK) got her first illegal drug conviction

when she pled guilty to possession of marijuana and was sentenced 10 days in the

county jail. RR-4 p. 45. The Department received an allegation on the parents that

same month. RR-4 p. 117. That same year, the child’s father (TC) was sentenced

to 150 days in jail for the earlier assault he committed against JJK. RR-4 p. 93.

In the late spring of 2011, JJK gave birth to a second son (JAY).8 RR-4 p.

14. His father was JY. RR-3 p. 116. The next year, on August 14, 2012, the

Department received a referral listing JJK as a perpetrator in an incident involving

both children as victims. RR-4 p. 117.

In 2013, TC was charged with another offense involving family violence and

upon pleading guilty he received a five-year sentence and community supervision.

RR-4 p. 51-54. The terms of the community supervision restricted TC from

contacting the complainant, Monique Perry. RR-4 p. 54. Before the end of 2013,

the Department received two more referrals concerning the children. RR-4 p. 117.

8
In this brief “JAY” refers to the second child born to JJK in 2011.

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 In 2014, when the children were about two and seven years of age, the

Department received a referral that JJK allowed her son to buy weed with an uncle

and JJK was smoking marijuana while the children were present. RR-4 p. 16. It

was reported that the mother had a mental illness and was not on her medication

and that the Department had experience with her in the past where she used other

people’s urine to pass a drug test. RR-4 p. 16.

On March 18, 2014, the Department filed an original petition that included

an affidavit requesting removal of the child into the Department’s care. CR 3;

Appendix,9 Attachment 1. The Department took emergency temporary custody of

the children on March 2, 2014. RR-3 p. 95. The court signed an order when the

Department’s suit was filed ordering the clerk to issue notice to the parents that

they must appear before the court on April 1, 2014. Appendix, Attachment 2. In

compliance with that order, JJK appeared in the courtroom on April 1, 2014 where

the suit was formally executed to confirm personal service upon JJK. RR-4 p. 6.

After the hearing on April 1, the Court signed an order that appointed the

Department as the children’s temporary managing conservator. RR-4 p. 116;

Appendix, Attachment 3. The court’s order also included a warning in bolded print

that notified the parents that compliance with the requirements in the Department’s

9
The items that are in the appendix do not appear in the current Clerk’s Record, but the
undersigned attorney has prepared a letter to the clerk’s office requesting that these documents
be supplemented in the current record.

-4-
service plan would be necessary for reunification and failure to comply could

result in restriction or termination of parental rights. Appendix, Attachment 3 p. 6.

The court signed a separate order on April 1, 2014 that required JJK and the

alleged fathers to submit to drug testing. Appendix, Attachment 4. In compliance

with that order, JJK submitted to a drug test and the report that came back from

Quest Diagnostics indicated positive results for cocaine and marijuana. RR-4 p.

128 and 130. The father, JY, also submitted to a drug test on that date and his test

revealed a positive result for marijuana. RR-4 p. 168. TC submitted hair for a drug

test the next month, and it showed positive results for marijuana. RR-4 p. 156.

A service plan for JJK was prepared and filed with the court that same

month that stated the Department’s initial concerns on 4/18/2014 as follows:

[JAY] is two years old under the age of five. [TJC] is 7 years old.
Both children are unable to protect themselves from danger.

[JJK] is significantly lacking knowledge of child development and the
parenting skills needed to meet any child behavioral and
developmental needs. [JJK] discipline practices for the children seem
violent and out of control. [JJK] has mental illness of bipolar and is
abusing drugs and alcohol. The parents engage in criminal active of
selling drugs. The parents ware children of CPS and suffer from abuse
and neglect.

The parents needy and self-centered needs are placed inappropriately
above the needs of the children. [JJK] has allowed the children to be
inadequately supervised, while she and other around the children
engage in using drugs.

-5-
 The parents appear unwilling or unable to meet any child's immediate
needs that might result in Immediate danger of serious harm. [JJK]
has two prior abuse/neglect Investigation by CPS.

[JJK] home is crowded/chaotic that responsibility for caregiving is
unclear, leading no one to assume responsibility for the children. The
behaviors of the household member expose children to danger. The
parents have history of criminal involvement, violent behavior, and
have been a victim of family violence.

[JJK] deny, seem unaware of, and take the allegations less seriously
than DFPS. [JJK] was hostile toward or refusing to cooperate with
DFPS at the investigation stage of the case.

[JJK] appear unwilling or unable to protect any child from other
persons who may inflict serious harm.

RR-4 p. 17; CR 40.

The service plan include numerous tasks to meet the stated goals including:

participation in anger management, domestic violence classes, psychiatric and

psycho-social evaluations, parenting classes, drug and alcohol assessment and

recommendations, random drug testing, maintain employment and housing for

more than 6 months, maintain visits with the children, refrain from illegal activities

and contact the caseworker in the event of a change in address. RR-4 p. 18-20.

The court signed an order on April 13, 2015 that approved the service plan filed

with the court. CR 73. JJK signed the plan on April 21, 2014. RR-4 p. 22.

On July 10, 2014, JJK was tested for drugs and her hair specimen test

indicated positive results for cocaine and marijuana. RR-4 p. 138. In August, it was

reported by the drug laboratory that there was insufficient specimen quantity for a

-6-
complete analysis. RR-4 p. 143. In December of 2014, the hair specimen was

tested and indicated positive results for cocaine and marijuana. RR-4 p. 146.

In February of 2015, the Department filed a report on the status of the case.

RR-4 p. 115. The report noted several items that JJK successfully completed.

Namely, she had been successfully discharged from individual therapy and

completed her parenting and anger management classes. RR-4 p. 123. She had

done her drug and alcohol assessment and was attending outpatient counseling.

RR-4 p. 13. She had not provided a lease but stated she was living with her

mother. RR-4 p. 123. Also, she was employed at her sister’s hair salon. RR-4 p.

123. Nevertheless, there had been some positive drug tests, she no showed for

some and tested positive for cocaine and marijuana as recently as December 9,

2014. RR-4 p. 123. The report recommended termination of the parent’s rights to

allow the maternal grandfather10 to adopt both children. RR-4 p. 124. In March, a

hair specimen was taken from JJK and the laboratory test indicated positive results

for cocaine and marijuana. RR-4 p. 151.

On April 2, 2015, trial commenced. RR-211 p. 1. The first witness was

Bruce Jefferies, Owner of the National Screening Center. RR-2 p. 12. He was

asked to comment on JJK’s drug results. RR-2 p. 14. He stated her hair specimen

10
In the brief, the maternal grandfather will be referred to as “Mr. King.”
11
In this brief, “RR-2” refers to the second volume of the reporter’s record. The first day of
testimony at trial.

-7-
test in April of 2014 showed positive results for methamphetamine, cocaine and

marijuana on the outside and inside of her hair and a urine test showed a positive

result for marijuana. RR-2 p. 14. He stated her next zero tolerance hair test on

May 6, 2014 was positive for cocaine and marijuana. RR-2 p. 14. He stated there

also was a positive result for xanax. RR-2 p. 14.

At her next drug test in July, there was positive results for cocaine and

marijuana and xanax. RR-2 pp. 14-15. Her August test was positive for marijuana

on the outside of her hair and her urine test was positive for xanax. RR-2 p. 15. In

December, her hair again tested positive for cocaine and marijuana and again she

tested positive for xanax. RR-2 p. 15. Mr. Jeffries stated that her March 2015 hair

test was positive for cocaine and marijuana and her urine test was positive in the

benzodiazepines family for xanax. RR-2 p. 16.

At the end of Mr. Jeffries’ testimony, the case was recessed and resumed on

April 13, 2015. RR-3 p. 1. JJK was then called to testify. RR-3 p. 7.

JJK claimed that her children came into care on a false accusation of drug

use. RR-3 p. 8. She acknowledged, however, that she was positive for marijuana

and cocaine during this case. RR-3 p. 11. JJK said she heard the testimony from

Mr. Jeffries indicating she was using cocaine throughout, but she stated she did not

do cocaine – just marijuana. RR-3 p. 11-12. She stated she tested positive for

cocaine, because she was selling cocaine in the beginning. RR-3 p. 12.

-8-
 JJK stated she signed her Family Plan of Service and it was explained to her

that by completing it that would be a way of regaining custody of her children. RR-

3 p. 14. She stated she did all of her services, but was unsuccessfully discharged

from two of them: group and drug counseling. RR-3 p. 14. She stated she was

unsuccessfully discharged from drug counseling because they found cocaine in her

hair in December. RR-3 p. 15. She acknowledged part of her plan of service was

to test negative, and she did not test negative on all. RR-3 p. 15-16.

JJK stated she was currently employed as a hair stylist. RR-3 p. 16. She

stated she goes to her clients, because she was in the process of moving. RR-3 p.

16. She stated she moved in with her mom when her lease was up, because she did

not know what was going to happen in her case. RR-3 p. 17.

JJK stated despite the support of her family she still used drugs, but

corrected herself and said: “I’m lyin’. I only used drugs in the beginning when

ya’ll – when the case started, that when I stopped. I have not used since March

11th” … “2014.” RR-3 p. 19-20.

She stated the only thing she did was marijuana and selling crack. RR-3 p.

21. She stated she would buy the crack and double her money. RR-3 p. 22. She

stated that she receives a check from the government for $700 every month for her

children. RR-3 p. 22.

JJK stated she was never married. RR-3 p. 22. JJK acknowledged that her

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first child’s father, TC, was arrested and convicted several times and she filed

charges on him. RR-3 p. 28. She stated she had a relationship with TC for a year,

but broke up with him when she was five months pregnant because he was very

abusive and also did very violent things. RR-3 p. 23 and p. 27. She described one

violent incident as follows:

Oh, he put a whole shoe on my car by the gas tank in front of my
mama’s house, lit it on fire, waited ‘til it go to this much of the sole,
(indicates) call my mamma and told my mama if she don’t want us to
die that she may want to get that fire out the yard.

RR-3 p. 27. She stated that TC had been paying child support but was behind. RR-

3 p. 24. She indicated the money goes to a debit card and the card was still in her

name. RR-3 p. 24.

JJK stated that her father was part of her support system and had her

children. RR-3 p. 29. JJK stated that her father had a lot of rules if she wanted to

be around him and the children. RR-3 p. 34. She stated she did not want her

children in CPS but would rather them be with her daddy and added “His daddy

wouldn’t take them.” RR-3 p.30.

She stated that her daddy takes her children to school, makes them great

meals, they mow the yard together and do manly things. RR-3 p. 30. She stated

she takes fault for the first case in 2009 and 2014 but she wanted to be part of her

kid’s lives. RR-3 p. 31 & 48. JJK acknowledged it was not fair that her children

had been in CPS custody three times in their lives. RR-3 p. 48. She stated she

- 10 -
won’t do any more drugs around them, but if they stay with her dad she would

have no problem with that. RR-3 p. 31.

JJK stated she started selling cocaine around her grandmother’s birthday in

January of 2014 until March when they came knocking on her door. RR-3 p. 32-33.

She stated if they never knocked on her door she would still have been selling.

RR-3 p. 33.

JJK said her disability is anxiety, bipolar and major depression and she gets

a check for 725. RR-3 p. 43. She stated she is on meds. RR-3 p. 44. She stated

she gets about 400 a month doing hair. RR-3 p. 46. She stated she also gets child

support so her month income is about $1500 roughly. RR-3 p. 47.

The next witness was TC. RR-3 p. 49. He stated he was the father of TJC.

RR-3 p. 49-50. He stated that JJK made a false accusation to police saying he put

his hands on her and the only reason he took the conviction was because he was

already going to TDC and at county jail they wake you up extra early. RR-3 p. 51.

He added he also did not want to come back to court. RR-3 p. 51. He confirmed

the plea he took for 15 months dealt with felony possession of 5 pounds of

marijuana. RR-3 p. 51. The plea also included a charge for delivery of a controlled

substance and he described the controlled substance as pills “she be testing positive

for.” RR-3 p. 51-52.

TC acknowledged that he did not complete his Family Plan of Service. RR-

- 11 -
3 p. 56. In particular, he acknowledged he had not completed anger management

or domestic violence and did not make all his drug tests. RR-3 p. 56. He also

admitted he did not participate in the recommendation made on his drug and

alcohol assessment and did not do parenting classes. RR-3 p. 57.

TC admitted during his visits while this case was pending, his visits had to

be suspended because he had a few altercations and had to be escorted off the

premises. RR-3 p. 57-58. His last visit was at Christmas. RR-3 p. 58.

TC stated he did not know the mother’s father but commented: “He good

people.” RR-3 p. 58. He commented that he raised three kids. RR-3 p. 70. Two of

them turned out but one was trouble. RR-3 p. 70. He commented that he had

allowed him to visit when “they” let him, but he was not currently doing so and so

he instead spoke with his son by phone. RR-3 p. 69. He added that he believed Mr.

King would do the best he could to care for the child if placed with him forever,

but did not think he would protect him from the mother. RR-3 p. 60. When asked

to explain why he believed Mr. King could not protect the child from the mother,

he responded that he believed she was crazy and would probably jump through a

window. RR-3 p. 76.

TC stated he did not want his son going back to the child’s mother and his

main concern was getting his child out of the “f----- -- situation that he was in with

his mother.” RR-3 p. 59. He stated that his son told him he was hit by his mother.

- 12 -
RR-3 p. 80. He also told him that he saw his mother get in physical altercations

with other men when he was around. RR-3 p. 80. He stated he thought his child

was making it up when he said his mommy and boyfriends hit him until he saw

something cleaning his mouth. RR-3 p. 89. Then when he got word his son was

walking with some grown man to the weed man, that was enough and he called

CPS. RR-3 p. 89.

TC stated he currently has a significant other living with him who was a

hospital nurse. RR-3 p. 68. He stated she was making a pretty good living. RR-3

p. 68. He stated he had been with her about five years but did not want to marry

her. RRR-3 p. 74.

TC stated he dated JJK for about a year, and admitted they did marijuana

together. RR-3 p. 90. He admitted he was charged with something violent against

her but claimed it was false. RR-3 p. 64. He stated he did not have a relationship

with her currently but would like to have a relationship with her as a friend. RR-3

p. 75. He stated he did not want her not to have her kids, but she’s on drugs. RR-3

p. 76. However, if she could show she could keep her nose clean and not do drugs,

he would not want to keep her from the kids. RR-3 p. 76. Before the next witness

testified, TC, the father of TJC, signed an irrevocable affidavit to relinquish his

parental rights that was admitted into evidence. RR-3 p. 93-94; RR-4 p. 190.

The next witness was the caseworker, Christina McKinney. RR-3 p. 94-95.

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She stated that she was the current caseworker for both of the children. RR-3 p. 95.

She stated that the children were currently placed with the maternal grandfather

(Mr. King) and had been there since August of 2014. RR-3 p. 95. She stated the

children were doing well and did not have special needs, but TJC had some issues

acting out in school that were being worked on. RR-3 p. 96. She noted despite his

conduct, he made all A’s. RR-3 p. 96.

Cristina stated that she believed the maternal grandfather could provide the

children a drug-free environment safe and stable environment and would be

protective of them. RR-3 p. 103. Cristina stated she believed the children’s current

placement was meeting their physical and emotional needs, and the Department’s

desire was for Mr. King to be able to adopt the children. RR-3 p. 96-97. Cristina

acknowledged that Mr. King did not originally want the parents’ rights terminated

and wanted them to get their lives together, but Mr. King became willing to adopt

the children to continue to offer them a safe and stable home. RR-3 p. 117-18.

Cristina stated that JJK consistently tested positive for multiple drugs while

this case was pending, and specifically: marijuana and cocaine. RR-3 p. 97. She

stated that she believed the mother’s conduct endangered the children, because she

allowed her kids to be around drugs and did not display proper behavior to them.

RR-3 p. 97. She noted she was doing better, but her drugs were still an issue and

still untreated. RR-3 p. 97. She stated the mother had produced negative UAs, but

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never provided a negative hair follicle test. RR-3 p. 98.

Cristina stated she went over the Family Plan of Service with JJK and was

available for any additional questions throughout this case. RR-3 p. 98-99.

Nevertheless, she had not completed her Family Plan of Service. RR-3 p. 99. She

did not complete her drug recommendations to be enrolled in in-patient due to her

continuing use and testing positive for cocaine. RR-3 p. 99. Also, she failed to

submit to a test to ensure she was taking her medications for bipolar and

depression. RR-3 p. 99.

When asked why the Department determined the children should not be

returned to the mother, she noted the mother was unsuccessfully discharged from

drug treatment which was the very reason the children came in care and she

continued to use drugs throughout. RR-3 p. 107. Cristina acknowledged the

mother produced drug testing through TADS system and those were negative. RR-

3 p. 107. There also was a point at a December hearing that there had been talk of

possibly returning the children to the mom because she had stopped testing

positive for cocaine and was only using marijuana and the levels went down. RR-3

p. 110. However, after the December hearing a drug test came back that showed

she tested positive for cocaine again. RR-3 p. 110; and pp. 112-13. She stated the

mother then tested for cocaine not only in December, but again in March of 2015.

RR-3 p. 114. Her failure to stay clean was criminal conduct that failed her service

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plan. RR-3 p. 111.

Cristina further added that the oldest child personally told her that he was

afraid of his mother and stated that she punched and hit him on his arm and leg.

RR-3 p. 116. He also disclosed at many points at the beginning of the case that he

was not only around marijuana but it was being smoked in the same room with

him. RR-3 p. 116. Cristina also noted that the children had been in and out of CPS

custody at least three different times in their lives and deserved to live in a safe and

stable environment that’s drug free. RR-3 p. 116.

Cristina stated that they attempted to reach out to Mr. Young, but the last

time she spoke to him was at a status hearing. RR-3 p. 100. She stated he signed

his plan of service and indicated he needed to get his child back. RR-3 p. 101.

Nevertheless, he did not follow the recommendations from his psychosocial

assessment and drug assessment and tested positive for marijuana while this case

was pending. RR-3 p. 101. She stated that he made the statement in the courtroom

at the status hearing that he was done with CPS. RR-3 p. 102. Consequently,

based on his lack of involvement, she did not believe he wanted to parent JAY.

RR-3 p. 102.

The next witness was Beresford Clarke, a volunteer on this case since May

of 2014. RR-3 p. 119. She stated that child advocates was recommending that Mr.

King have PMC, was not in support of termination and wanted the case to continue

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longer so “he” could qualify for care assistance. RR-3 p. 120. A child advocate’s

coordinator, Quana Smith, then interrupted and said the reason they did not support

termination was because the caregiver did not want to adopt, and they were trying

to give him a chance to meet the requirements for PCA benefits. RR-3 p. 121.

Nonetheless, Beresford stated if the court terminated the parents’ rights, they

would want Mr. King to adopt. RR-3 p. 122. Beresford later stated she believed

the mom’s parental rights should be terminated. RR-3 p. 125.

Beresford stated child advocates believed PMC versus adoption was better

for the children, however, because Mr. King stated, even that day, that he would

prefer PMC. RR-3 p. 123. In further clarification, Beresford stated that the

eventual goal they wanted was for Mr. King to obtain some assistance and

eventually adopt. RR-3 p. 124. She stated, however, if by adoption he got financial

assistance they would opt for adoption. RR-3 p. 126.

The next witness was Jerry King, the maternal grandfather who was the

placement for the two children. RR-3 p. 128-29. He stated that the children were in

his home since August of 2014, that they were doing good and did not have

behavioral issues. RR-3 p. 129.

He stated he was willing to act as long-term placement for the children, and

if the court terminated the parental rights that day he was willing to adopt. RR-3 p.

130. He stated he would like to see his daughter get off drugs and get her kids

- 17 -
back and he had several conversations with her about that. RR-3 p. 131. However,

he acknowledged she accused him of trying to take her children away from her all

the time even though he told her he never did that. RR-3 p. 132-33. He stated he

would do whatever he had to in order to protect the children. RR-3 p. 132. He also

said that the children were set financially and he did not really need an adoption

subsidy. RR-3 p. 132. Mr. King stated he was a technician and worked in air

conditioning for MD Anderson for 41 years. RR-3 p. 136.

Mr. King stated that he would allow the parents to have contact with the

children supervised, because he believed they needed it. RR-3 p. 134. Moreover,

he hoped, regardless of what the court decides that the parents would get their lives

together. RR-3 p. 134.

JJK was recalled to testify in her case in chief. RR-3 p. 138. She stated

about a month prior after she had been testing positive for cocaine in her hair every

time, she was asked to go to a rehab and it was denied but then two weeks before

she was asked to go to rehab. RR-3 p. 144. JJK stated: “Im not trippin’ about

going to a rehab. If that’s what it takes to get my kids back, then I do it.” RR-3 p.

144. When asked if she thought she had a drug problem, she responded: “No I

don’t.” RR-3 p. 147. She acknowledged if she wanted to get off drugs, she could

have gone to rehab and got off drugs over a year earlier. RR-3 p. 150.

JJK stated if the court is going to give the children to her daddy, she should

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at least be able to assist him with homework and cook dinner. RR-3 p. 145. She

stated her children were used to being with her all the time and missed her. RR-3

p. 145. She also stated that she was willing to provide however much is needed in

child support. RR-3 p. 145.

When asked what her children needed most of all right that moment, she

responded: “I just bought shoes and clothes.” RR-3 p. 146. When asked again, she

stated: “I wouldn’t know. My daddy would have to answer that.” RR-3 p. 146.

The caseworker, Cristina, was recalled as a witness. RR-3 p. 155. She

stated she was present in court during a possible altercation between JJK and TC

that same day. RR-3 p. 156. She saw JJK raise her fist and saw her dad escorting

her out of the courtroom. RR-3 p. 156-57. Based on her observation, she did not

believe JJK learned anything from her anger management. RR-3 p. 157.

SUMMARY OF ARGUMENT

Appellant’s Brief brings legal and factual sufficiency challenges to the

evidence in support of the court’s findings to terminate JJK’s parental rights under

Section 161.001 of the Family Code. The findings to terminate parental rights

under Section 161.001 of the Family Code require that: (1) parental termination is

in the child’s best interest and (2) that the parent committed at least one predicate

act listed under Section 161.001(1) of the Family Code. Consistent with that

authority, the court found (1) parental termination in the child’s best interest, and

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(2) that JJK committed three predicate acts listed under Section 161.001(1):

namely D, E, and O. Appellant’s Brief challenges the evidence supporting the

court’s finding that termination was in the child’s best interest but only challenges

one of the predicate acts under Section 161.001(1): namely, Subsection E.

Because Appellant’s brief does not address all of the predicate bases for

parental termination that were included in the judgment, the unchallenged findings

are binding on this court and supportive of the judgment. Consequently, there is no

need for this court to review the Appellant’s challenge to the court’s finding under

Subsection E in order to affirm the parental termination judgment. The

unchallenged findings under D and O are binding and supportive of the trial court’s

decision of a predicate act under Section 161.001(1).

Nonetheless, there was more than sufficient proof in support of the court’s

finding under Subsection E based on the dangerous environment she provided to

her children by virtue of her drug use and neglectful activities. The evidence

showed that not only JJK but all of the alleged fathers engaged in illegal drug use

and that the children were exposed to drug use in the home. The illegal drug

activities of both JJK and the father of her first child, before and after the first

child’s birth, is undisputed. Also, after JJK’s second child was born, that behavior

continued and both of her children came into care because of her illegal drug use in

front of the children. The drug test of the father of her second child confirmed this

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father also engaged in illegal drug use. All of these facts more than adequately

established that these children were born into home where they were exposed to

parents who engaged in conduct that had the effect of jeopardizing their safety and

well being. In addition, despite CPS involvement, and attempts to work with all of

these parents, their parental neglect continued and JJK, in particular, continued to

engage in illegal drug use while the children were in care which obviously

jeopardized reunification, was damaging to her children emotionally and precluded

stability and permanency with a biological parent.

Appellant’s Brief claims there was inadequate evidence to find parental

termination was in the child’s best interest because the mother substantially

completed most of the tasks of her service plan, had a good relationship with her

children who missed her, and she could do things to support her father who was

willing to adopt her children. However, that evidence disregards the undisputed

fact these children were never safe in her care because of her illegal drug activities

that she continued after the case was filed, and was unsuccessfully discharged from

drug treatment services. Such evidence displayed a continued pattern of

inappropriate and neglectful behaviors and a clear indication of her unwillingness

to acquire safe behaviors within a reasonable amount of time.

What likely became most persuasive to the trial court, however, about

whether the mother had actually turned around her behavior to make a relationship

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possible came when the mother admitted on the stand that she would have

continued selling drugs had CPS not come knocking on her door. Also, even while

this case was being tried, it was observed that the mother was involved in an

altercation right outside the courtroom that indicated she learned nothing from her

anger management class. On this evidence, the court had more than sufficient

basis to conclude that there was no assurance the mother’s pattern of inappropriate

behaviors had changed or that the children would have any chance of obtaining a

prompt, permanent and safe home with her. In the meantime, while she failed to

turnaround her behavior, the Department had been able to place these children with

a grandparent who had sacrificed to take care of these children needs for several

months, had provided good care for the children and expressed willingness to

adopt them. On this evidence, the court made the correct decision to find parental

termination was in the children’s best interest so a plan of adoption and

permanency could be achieved. The trial court’s judgment should be affirmed.

ARGUMENT AND AUTHORITIES

REPLY POINT: The evidence sufficiently supported the court’s decision to
terminate JJK’s parental rights.

1) Applicable Law and Standard of Review

Section 161.001 of the Family Code was the statutory basis by which the

Department sought termination of JJK’s parental rights. Tex. Fam. Code Ann.

§161.001 (West 2008). Section 161.001 of the Family Code authorizes termination

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of parental rights on a finding by clear and convincing evidence that (1) the parent

committed at least one of several predicate acts or omissions listed under section

161.001(1) of the Family Code and (2) that termination is in the child’s best

interest. Tex. Fam. Code Ann. §161.001 (Vernon 2008); See In re A.V., 113

S.W.3d 355, 362 (Tex. 2003) (“[o]nly one predicate finding under [Texas Family

Code] 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.”).

As required by Tex. R. Civ. P. 306, the decree signed in this case confirmed

that Section 161.001 of the Family Code was the basis for the court’s parental

termination decision. CR 78-79. Namely, it recited that the court found parental

termination was in the child’s best interest and that JJK committed the predicate

acts listed in Subsection 161.001(1) (D), (E) and O. Id. Appellant’s Brief only

challenges the predicate act of Subsection E. Since the other predicate acts are not

challenged, this court need not review Subsection E to affirm the judgment for

parental termination, because the findings under D and O are binding on this court.

See In re E.A.F., 424 S.W.3d 742, 750 (Tex. App. – Houston [14th Dist.] 2014,

pet. denied); See also IKB Indus (Nigeria) Ltd. v. Pro Line Corp., 938 S.W.2d 440,

445 (Tex. 1997).

Review of the appellant’s challenge under the applicable standard of review

requires consideration of the clear and convincing burden of proof at trial. See In re

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C.H., 89 S.W.3d 17, 25 (Tex. 2002) (“burden of proof at trial necessarily affects

appellate review of the evidence.”); In the Interest of J.F.C., 96 S.W.3d 256, 265-

66 (Tex. 2002). In that connection, both legal and factual sufficiency challenges

consider the standard of proof for clear and convincing evidence by considering

whether the evidence is such that a fact-finder could reasonably form a firm belief

or conviction about the truth of the State's allegations. See In re C.H., 89 S.W.3d at

p. 25 (Tex. 2002); In re J.F.C., 96 S.W.3d at pp. 265-66; Tex. Fam. Code Ann.

101.007 (West 2002).

In In re J.F.C. the Supreme Court explained, in light of the identical

inquiries made to the clear and convincing standard, the distinction between legal

and factual sufficiency when the burden of proof is clear and convincing evidence

may be a fine one in some cases, but clarified that there is a distinction in how the

evidence is reviewed. 96 S.W.3d at p. 266. The court explained that in a legal

sufficiency review, a court should look at all of the evidence in the light most

favorable to the finding to determine whether a reasonable trier of fact could have

formed a firm belief or conviction that its finding was true, giving appropriate

deference to the trier of fact. Id. In a factual sufficiency review, a court of appeals

must give due consideration to evidence that the factfinder could reasonably have

found to be clear and convincing and with respect to disputed evidence, a court

should consider whether the disputed evidence is such that a reasonable factfinder

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could not have resolved that disputed evidence in favor of its finding. Id. 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. 96 S.W.3d at pp. 266-67.

2) The undisputed evidence of JJK’s pattern of illegal drug activities,
before and after her children were born, as well as after they came in
State care, provided sufficient proof that she endangered her children
for findings under Subsections (D) and (E) of Section 161.001(1) of the
Family Code.

Both the first and second predicate findings the court found in support of the

decision to terminate JJK’s parental rights involved findings about endangerment

to the children under Subsections D and E of Section 161.001(1) of the Family

Code. Those sections involving findings that the parent:

(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or emotional
well-being of the child;

Tex. Fam. Code Ann. §161.001(1)(D), (E) (West 2008).

The term “endanger,” used in these sections means exposing a child to loss

or injury or jeopardizing a child's emotional or physical health. Texas Dep't of

Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). As clarified by the

Supreme Court, the proof for endangerment does not have to be established as an

- 25 -
independent proposition, but can be inferred from parental misconduct alone.

Boyd, 727 S.W.2d at p. 533. Also, it is not necessary that the parental misconduct

be directed at the child, occur in the child’s presence or that the child actually

suffer injury from it; and it may include evidence of conduct before the child's

birth as well as before and after the child has been removed by the Department. See

In re B.B., 971 S.W.2d 160, 166-69 (Tex. App.―Beaumont 1998, pet. denied).

In the present case, there was undisputed proof establishing that JJK

maintained a pattern of behaviors before and after her children’s births that had the

effect of endangering her children to support findings under both Subsections D

and E based on the following evidence:

1. JJK and TC used marijuana when they were together, and JJK confirmed
they were together until she was five months pregnant with her first son
(TC). RR-3 p. 90 and p. 23.

2. When her first son (TJC) was two years old, in August 2009, JJK pled
guilty to possessing marijuana and was sentenced 10 days in jail. RR-4
p. 45. RR-4 p. 12 (TJC born Spring 2007).

3. TJC disclosed he was afraid of his mother, saw drugs in the home,
marijuana was smoked in the room with him and that his mom would
punch and hit him. RR-3 p. 116.

4. JJK admitted she began selling crack cocaine in January of 2014, after
her second child (JAY) was born, and would have continued selling had
they never knocked on her door. RR-3 p. 32-33.

5. When the Department removed the children from that situation in 2014,
JAY was only 2 and TJC was 7 and it was noted that the mother’s
discipline practices were violent and out of control. RR-4 p. 17.

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 6. The Department learned the mother had bipolar disorder and was
abusing drugs. RR-4 p. 17; RR-3 p. 43-44 (JJK acknowledged diagnosed
with bipolar and on meds).

7. The Department learned JJK allowed the children to be inadequately
supervised while she and others used drugs around them. RR-4 p. 17;
RR-3 p. 116.

8. JJK has two prior abuse/neglect investigations by CPS before the 2014
removal, and by the time of this removal, the children had been in CPS
custody three times in their lives. RR-3 p. 48; RR-4 p. 17. Also, during
the Department’s experience, JJK used another person’s urine to pass a
drug test. RR-4 p. 16.

9. JJK continued illegal drug use after this case was filed and did not
successfully complete her plan of service ordered for reunification. RR-
4 p. 138-51; RR-2 p. 15-16; RR-3 p. 11-12; RR-3 p. 14-16; RR-3 p. 99
and pp. 110-14.

In particular, the above facts established JJK knowingly engaged in illegal

drug activities, violent and negligent parenting practices that exposed the children

to an unsafe home, and endangered them by exposing them to the possibility their

mother would be impaired or incarcerated due to drug use and selling crack

cocaine while these children were under her care. Such practices proved she

knowingly placed her children in dangerous surroundings and jeopardized their

well being for findings under both Subsections D and E. See In re J.O.A., 283

S.W.3d 336, 345 (Tex. 2009) (“We … agree that a parent’s use of narcotics and its

effect on his or her ability to parent may qualify as an endangering course of

conduct.”); See also In re D.J.W., 394 S.W.3d 210, 221 (Tex. App.―Houston [1st

Dist.] 2012, pet. denied) (proof of a custodial parent’s pattern of illegal drug use

- 27 -
constitutes endangering parental conduct because it exposes a parent to

incarceration or impairment); Latham v. Dep’t of Family & Protective Servs., 177

S.W.3d 341 (Tex. App.―Houston [1st Dist.] 2005, no pet.) (though mother

claimed she did not use drugs in front of the children; affirmed finding under

Ground E based on her history of drug use and her continuation of drug use even

after her parental rights were in jeopardy after the children were removed). In re

J.T.G., 121 S.W.3d 117, 125 (Tex. App.―Fort Worth 2003, no pet.) (abusive

conduct as well as illegal drug use and criminal activity supports a finding of

conduct that endangers a child’s environment by permitting unsafe circumstances

for findings under both D and E).

In addition, her decision to do engage in illegal drug behaviors while

suffering a bipolar condition as well as her continuation of illegal drug use and

noncompliance with the court’s order for reunification while this case was pending

further established the proof of her dangerous course of conduct for the court’s

finding under Subsection E. In re S.R., No. 14-14-00393-CV, 2014 WL 5898453

(Tex. App.―Houston [14th Dist.] 2014, no pet.) (continued drug use after removal

is conduct that jeopardized parental rights and may be considered as proof of a

dangerous course of conduct); Lathan v. Dept of Fam. & Prot. Servs., 177 S.W.3d

341, 348 (Tex. App.―Houston [1st Dist.[ 2005, no pet.) (parent’s continuation of

drug use after birth of children and when parental rights in jeopardy considered in

- 28 -
endangerment finding); Callahan v. Brazoria County Child Prot.Servs. Unit., 2003

WL 2199952 (Tex. App.―Houston [1st Dist.] 2003, no pet.) (“jury was able to

consider testimony of .. imprisonment, criminal history, drug use, violent acts …,

suicide attempts and mental condition” in support of Subsection E); See also

generally In re B.H., No. 01-10-00415-CV, 2011 WL 4501940 (Tex.

App.―Houston [1st Dist.] 2011, no pet.) (because children need stability and

permanence, conduct that subjects a child to a life of uncertainty and instability

endangers a child’s physical and emotional well-being). As these facts were mostly

undisputed, this evidence conclusively established the trier of fact’s findings.

3) Though review of O ground is unnecessary JJK’s admission that she
violated her court ordered service plan by engaging in illegal drug use
and failing to complete tasks supported the court’s finding under
subsection (O).

Because only one predicate finding under Section 161.001(1) of the Family

Code was necessary to support the court’s parental termination decision with

respect to JJK and the findings of Subsections D and E were proven conclusively,

the court’s other predicate finding, Subsection O, need not be reviewed. See In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003). Moreover, because this finding was not

challenged in this appeal, it is binding for this court’s review of the facts in this

appeal. See In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.―Houston [14th Dist.]

2014, pet. denied). However, because it is relevant for review of the best interest

finding, it should be mentioned.

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 Under Subsection O, a trial court must find by clear and convincing

evidence that the parent 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 2008). The

evidence at trial proved this subsection conclusively, because the evidence

established JJK continued illegal drug activities and not complete drug treatment in

violation of the tasks in her court ordered plan of service, her children were

removed as a result of her neglectful irresponsible and illegal behaviors, as already

discussed above, and her children remained in the Department’s care for at least

nine months. RR-3 p. 14-16 and 95; RR-4 p. 17.

4) The evidence supporting the court’s findings under Subsections D, E
and O of Section 161.001(1) of the Family Code adequately supported
the court’s finding that termination was in the children’s best interest.
The phrase “best interest of the child” is not statutorily defined. However, in

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), the Texas Supreme Court

recognized a non-exhaustive list of factors to consider in this evaluation including:

a child’s physical and emotional needs, emotional and physical danger to the child,

parental abilities, programs to assist in promoting the child’s best interest, plans by

- 30 -
those seeking custody, stability of the home, improper parental acts and any excuse

for the improper acts or omissions by the parents. Also, besides these factors,

Section 263.307 of the Family Code directs that the prompt and permanent

placement of a child in a safe environment is in a child’s best interest and list

numerous factors in evaluating a parent’s willingness to provide that safe

environment. See Tex. Fam. Code Ann. §263.307 (West 2008). Of those

numerous factors, the ones listed at Subsections (b)(1), (8), (10), (11) and (12)

seem most relevant to the facts in this case. Namely, those factors consider (1) the

children’s age (2) substance abuse issues, (3) willingness to undergo counseling

and cooperate under agency supervision (4) willingness to effect positive changes

and (5) demonstration of adequate parenting skills, including the ability to provide

for a child’s basic needs in a safe environment. Id. at §263.307(b). While there

are obviously many factors to consider, the single question in the parental

termination context boils down to the best interest of the child. The facts in this

case supported the trial court’s conclusion that termination of the parental rights of

JJK was in the children’s best interest.

As already discussed, one of the primary safety issues that brought the

children into care had to do with JJK’s illegal drug activities prior to the removal

of the children, as well as continued drug use after the court ordered her to refrain

from illegal actions as a condition of reunification. Those facts, as already

- 31 -
discussed above, established that DLB maintained behaviors neglectful to her

children’s well-being for the findings under D and E. Such facts also supported the

court’s finding that parental termination was in the child’s best interest. See In re

A.L.W., No. 01-14-00805-CV, 2015 WL 4262754 *12 (Tex. App.―Houston [1st

Dist.] 2015, no pet.) (mem. op.) (parental drug use reflects poor judgment and can

demonstrate parent’s inability to care for child and instability in home); P.W. v.

Dept of Fam. & Prot. Servs., 403 S.W.3d 471, 479 (Tex. App.―Houston [1st

Dist.] 2013, pet. dism’d w.o.j.) (drug use can prove instability); In re I.R., 2014

WL 6854747 *8 (Tex. App. – Houston [14th Dist.] 2014, no pet.) (“A parent’s drug

use supports a finding that termination is in the best interest of the child.”) (mem.

op.).

Moreover, the facts in support of the finding under Subsection O that

established JJK violated her plan of service by continuing illegal drug behaviors

and tasks related to that concern was another fact that supported the court’s

finding. See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (“Many of the reasons

supporting termination under subsection O also support the trial court’s best

interest finding); In re A.L.W., 2015 WL 4262754 *12 (if a parent fails to complete

services for reunification, a factfinder may infer the parent lacks motivation to seek

out necessary resources for that purpose now or in the future). Further, this fact

was likely particularly significant in the court’s analysis considering these young

- 32 -
children had already been in CPS care three times in their lives, and JJK

acknowledged that was not fair to them. RR-3 p. 48.

In the mean time, while JJK’s continued in irresponsible parental behavior,

her children acquired a good home for several months with a grandparent who

provided for all their needs and was committed to providing the children safety and

permanency and was willing to adopt. RR-3 pp. 96, 103, 130, 132. Because the

need for permanence is a paramount consideration in determining a child’s present

and future needs, the court had more than sufficient basis to find termination of

JJK’s parental rights was in the child’s best interest. See Jordan v. Dossey, 325

S.W.3d 700, 731 (Tex. App.―Houston [1st Dist.] 2010, pet. denied). The

evidence in support of the court’s finding was sufficient.

Appellant’s Brief suggests that the evidence is not factually sufficient,

because the maternal grandfather father did not want to adopt the children. That is

not exactly accurate. The evidence illustrates that the grandfather was more than

willing to adopt but would have preferred that the parents have gotten their act

together. RR-3 p. 130. He stated he would like to see his daughter get off drugs

and get her kids back and he had several conversations with her. RR-3 p. 131. In

addition, regardless of whether the grandparent was willing to adopt or not, that

factor would not be dispositive in the situation of this case where the decision of

adoption was not yet before the court. In deciding best interest in a parental

- 33 -
termination case, evidence about permanent placement and adoption considerations

at the time a parental termination may be relevant, but is cannot dispositive when

the Department does not have a definitive plan for adoption. See In re C.H., 89

S.W.3d 17, 28 (Tex. 2002). Accordingly, this fact does not outweigh the trial

court’s determination on the facts in this case. Consequently, there is no basis to

conclude the trial court’s finding lacked sufficient evidence. It should be affirmed.

WHEREFORE, PREMISES CONSIDERED, Appellee Department of

Family & Protective Services requests that this court affirm the trial court’s

judgment and for such other and further relief to which it may be entitled in law or

in equity.

Respectfully submitted,
VINCE RYAN
COUNTY ATTORNEY

By: /s/ Sandra Hachem
Sandra Hachem
Assistant County Attorney
State Bar #08667060
1019 Congress, 17th Floor
Houston, Texas 77002
Phone: 713/274-5293; Fax: 713/437-4700
Email: Sandra.Hachem@cao.hctx.net
Attorney for Appellee,
Department of Family & Protective Services

CERTIFICATE OF SERVICE

I hereby certify that on this the 18th day of August, 2015 a true and correct
copy of the foregoing Appellee’s brief was sent to all parties to this appeal by
sending a copy of this brief by (1) electronic transmission to:

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 Appellant, DLB
c/o her attorney of record Donald Crane
By email at: donmcrane@gmail.com

and

the Attorney ad Litem for the Children
Susan Ryan Solis by fax at her
Fax number: 832/661-7946

/s/ Sandra Hachem
Sandra Hachem

CERTIFICATE OF COMPLIANCE OF NUMBER OF WORDS

This is to certify, pursuant to Tex. R. App. P. 9.4(i)(3), that the foregoing
computer generated brief consists of no more than 15,000 words, excluding the
caption, identify of parties and counsel, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of procedural
history, signature, proof of service, certification, certificate of compliance and
appendix. Relying on the word count of the computer program used to prepare this
document, the number of words, subject to count under the rules, is 8,785 words.

/s/ Sandra Hachem
Sandra Hachem

- 35 -
 No. 01-15-00469-CV
__________________________________________________________

IN THE COURT OF APPEALS
FOR THE FIRST JUDICIAL DISTRICT
OF TEXAS AT HOUSTON
__________________________________________________________

IN THE INTEREST OF
J-M. A.Y., Child
__________________________________________________________

J.J.K. Appellant

v.

DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee
__________________________________________________________

APPENDIX
__________________________________________________________

Affidavit of Removal- Image #60049932 ……………………….Attachment 1

Order Setting Hearing – Image #60049933 …………………………Attachment 2

Temporary Order Following Adversary Hearing –
Image #60802353 ……………………………………………Attachment 3

Order for Drug / DNA Screening - #60340835….…………………..Attachment 4

- 36 -
 Tab 1
Affidavit of Removal- Image #60049932
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this August 14, 2015

Certified Document Number: 60049932 Total Pages: 6

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
 Tab 2
Order Setting Hearing – Image #60049933
)RU2IILFLDO*RYHUQPHQWDO8VH2QO\'R1RW'LVVHPLQDWHWRWKH3XEOLF3DJHRI
For Official Governmental Use Only - Do Not Disseminate to the Public: 60588927 - Page 2 of 2
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this August 12, 2015

Certified Document Number: 60588927 Total Pages: 2

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
 Tab 3
Temporary Order Following Adversary Hearing –
Image #60802353
)RU2IILFLDO*RYHUQPHQWDO8VH2QO\'R1RW'LVVHPLQDWHWRWKH3XEOLF3DJHRI
)RU2IILFLDO*RYHUQPHQWDO8VH2QO\'R1RW'LVVHPLQDWHWRWKH3XEOLF3DJHRI
)RU2IILFLDO*RYHUQPHQWDO8VH2QO\'R1RW'LVVHPLQDWHWRWKH3XEOLF3DJHRI
)RU2IILFLDO*RYHUQPHQWDO8VH2QO\'R1RW'LVVHPLQDWHWRWKH3XEOLF3DJHRI
For Official Governmental Use Only - Do Not Disseminate to the Public: 60802353 - Page 5 of 8
)RU2IILFLDO*RYHUQPHQWDO8VH2QO\'R1RW'LVVHPLQDWHWRWKH3XEOLF3DJHRI
)RU2IILFLDO*RYHUQPHQWDO8VH2QO\'R1RW'LVVHPLQDWHWRWKH3XEOLF3DJHRI
)RU2IILFLDO*RYHUQPHQWDO8VH2QO\'R1RW'LVVHPLQDWHWRWKH3XEOLF3DJHRI
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this August 12, 2015

Certified Document Number: 60802353 Total Pages: 8

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
 Tab 4
Order for Drug / DNA Screening - #60340835
)RU2IILFLDO*RYHUQPHQWDO8VH2QO\'R1RW'LVVHPLQDWHWRWKH3XEOLF3DJHRI
 I, Chris Daniel, District Clerk of Harris
County, Texas certify that this is a true and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date.
Witness my official hand and seal of office
this August 12, 2015

Certified Document Number: 60340835 Total Pages: 1

Chris Daniel, DISTRICT CLERK
HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com