Opinion issued February 7, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00785-CV
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IN THE INTEREST OF A.D.N., M.D.N., D.J.N., AND M.M.T.N.,
CHILDREN
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2015-01529J
MEMORANDUM OPINION
A.M.N., a mother, appeals the trial court’s order terminating her parental
rights to her four children. A.M.N. challenges the trial court’s judgment on the
grounds that factually and legally insufficient evidence supports the trial court’s
conclusions that she committed four predicate acts required for termination and that
termination was in her children’s best interest. We affirm.
Background
A.M.N. (“Mother”) is the mother of four children who are the subject of this
suit—a six-year-old daughter, M.D.N., a four-year-old son, A.D.N., a two-year-old
son, D.J.N., and a 23-month-old son, M.M.T.N. In March 2015, DFPS sued Mother
seeking conservatorship and termination of her parental rights with respect to A.D.N.
based on medical neglect. DFPS supported the allegations in its petition with the
affidavit of DFPS investigator Heather Pohl and a physician’s statement from Dr.
Michael Braun, Chief of Nephrology at Texas Children’s Hospital.
According to Pohl’s affidavit, DFPS received four reports of Mother’s child
neglect between March 2014 and December 2014. DFPS received the first report in
March 2014, after Mother’s urine tested positive for marijuana at the birth of D.J.N.
in Tulsa, Oklahoma. Two days later, DFPS received a second report after A.D.N.,
who was not yet two years old, was taken to a Houston hospital with a high fever by
his maternal grandfather (“Grandfather”). Grandfather could not provide the
hospital any identifying information about A.D.N. or Mother.1 The hospital was
uncomfortable discharging A.D.N. to Grandfather and ultimately discharged A.D.N.
to his step-grandmother (“Grandmother”).
1
Mother told DFPS that she is estranged from Grandfather but he was the only person
she could ask to take A.D.N. to the hospital because she was out of town and the
person watching A.D.N. could not drive or accompany him to the hospital because
she was caring for two other children.
2
The events that formed the basis of the third report of neglect took place in
late 2014 and culminated in the hospitalization of A.D.N. on December 1, 2014. In
the fall of 2014, A.D.N. was hospitalized and diagnosed with nephrotic syndrome—
a condition which causes his body to produce excess fluid, overloading his kidneys.
A.D.N. was readmitted to a different hospital a week later, after Mother noticed
scrotal swelling. The hospital discharged A.D.N. days later, re-educated Mother
regarding A.D.N.’s fluid and sodium restrictions, and scheduled a follow up
appointment for late October. After his discharge, Mother spoke to the hospital by
phone and reported that A.D.N.’s urine protein and edema was up and that his weight
had increased by approximately seven pounds. Based on his symptoms, she stated
that she would bring A.D.N. to the hospital, but she failed to do so. In mid-October
2014, A.D.N. again had to be hospitalized for three days. When the hospital
discharged A.D.N., Mother was instructed to restrict A.D.N.’s fluid and sodium
intake, test A.D.N.’s urine daily and record the results, and update the hospital staff
weekly on A.D.N’s urine protein levels. Mother did not contact the hospital until he
had to be hospitalized again on December 1, 2014.
That day, Mother called 911 and reported that A.D.N. had been swelling for
5 to 7 days, not urinated for 2 days, had watery diarrhea for 3 days, and increased
difficulty breathing. Emergency Medical Services transported A.D.N. to the hospital
and A.D.N. was in crisis when he arrived. His symptoms were so severe that he was
3
admitted to the pediatric intensive care unit, about 14 pounds over his appropriate
weight. In a Physician’s Statement Regarding Injury to a Child, A.D.N.’s physician
noted that “the severity of symptoms at presentation indicate significant delay in
seeking care and resulted in harm to patient.” The physician further noted that the
severity of A.D.N.’s symptoms were consistent with medical neglect. A.D.N.
remained in the hospital for months.
In mid-December 2014, DFPS received a fourth report of Mother’s neglect
after police found then four-year-old M.D.N. and nine-month-old D.J.N. alone in
Mother’s residence. According to the report, Mother’s roommate was present when
the deputy arrived but fled when asked for identification, leaving the children alone.
The house was cluttered with garbage, clothing and toys. There was an exposed
heater on the floor, though it was 70 degrees outside. Nine-month-old D.J.N. was
laying on the bed, and there were pill bottles in the room and a steak knife on the
floor. Pohl’s affidavit describes the condition of the home as unsafe for small
children. That same day, Mother, who was approximately six to seven months
pregnant with M.M.T.N., tested positive for cocaine and marijuana.
According to Pohl’s affidavit, Mother then agreed to work with Family Based
Services and to place her children outside of the home until she completed services.
At Mother’s request, DFPS placed D.J.N. and M.D.N. with Grandmother and
4
Grandfather. Mother gave birth to her fourth child, M.M.T.N., in February 2015 and
he was also placed with Grandmother as a Parental Child Safety Placement.
A.D.N. was still in the hospital in March 2015. According to DFPS’s petition,
upon his release from the hospital, A.D.N. would “require daily medical
intervention.” He would need to receive outpatient infusions five times a week and
each infusion would take four hours. Additionally, A.D.N. would require oral
medications, a low sodium diet, fluid restrictions, blood pressure monitoring, and
urine protein testing.
The trial court granted DFPS temporary managing conservatorship of A.D.N
in March 2015. In April 2015, DFPS removed D.J.N., M.D.N., and M.M.T.N from
Grandmother’s home following an altercation involving a gun between Grandfather
and another person in front of the home. Grandmother and Grandfather were evicted
and the children were placed together in a foster home. DFPS filed a first amended
petition seeking termination of the parental rights of Mother with respect to all of
her children and emergency conservatorship for the protection of M.D.N., D.J.N.,
and M.M.T.N., asserting that Mother committed one or more of the following acts
or omissions:
15.1 knowingly placed or knowingly allowed the
children to remain in conditions or surroundings which
endanger the physical or emotional well-being of the
children, pursuant to §161.001(1)(D), Texas Family Code;
5
15.2 engaged in conduct or knowingly placed the
children with persons who engaged in conduct which
endangers the physical or emotional well-being of the
children, pursuant to §161.001(1)(E), Texas Family Code;
15.3 constructively abandoned the children who have
been in the permanent or temporary managing
conservatorship of the Department of Family and
Protective Services or an authorized agency for not less
than six months and: (1) the Department or authorized
agency has made reasonable efforts to return the children
to the mother; (2) the mother has not regularly visited or
maintained significant contact with the children; and
(3) the mother has demonstrated an inability to provide the
children with a safe environment, pursuant to
§161.001(1)(N), Texas Family Code;
15.4 failed to comply with the provisions of a court order
that specifically established the actions necessary for the
mother to obtain the return of the children who have 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 children’s
removal from the parent under Chapter 262 for the abuse
or neglect of the children, pursuant to §161.001(1)(O),
Texas Family Code.
The trial court granted DFPS temporary managing conservatorship over M.D.N.,
D.J.N., and M.M.T.N. the same day.
In May 2015, DFPS filed a family service plan detailing goals, tasks, and
services for Mother to complete. The family service plan required Mother to:
Complete a drug and alcohol assessment and follow any and all
recommendations;
Participate in and successfully complete an 8-week parenting class and
provide DFPS with certificate of completion;
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Participate in individual therapy sessions;
Complete random urine analysis throughout the duration of the case;
Maintain stable, hazard-free housing for at least 6 months or more and
provide DFPS with proof of residence;
Maintain legal and verifiable employment and/or income for 6 months
or more;
Attend all court hearings, meetings, and all case related activities;
Maintain contact with case worker and notify of any changes in phone
numbers or address;
Attend all medical appointments for A.D.N. after he is discharged from
the hospital;
Complete outpatient substance abuse programs and follow discharge
recommendations and attend a 12 step program: NA/AA;
Complete a psycho-social evaluation or a 4 C’s assessment and follow
any and all recommendations.
The family service plan noted Mother’s strengths, including: (1) she was working
full time, (2) she graduated high school, (3) she had a cosmetology license, (4) she
was moving into a house, (5) she was cooperating with the agency, (6) she was in
outpatient treatment, (7) she took responsibility for her mistakes, (8) she is attentive
to A.D.N. in the hospital and visits him, (9) she provides for some of the needs of
the children in foster care, (10) she shows general concern, (11) she took care of the
warrants for her unpaid tickets, and (12) she completed her 4 C’s assessment. The
trial court approved the family service plan and noted that Mother reviewed and
understood its terms and was advised that unless she is willing and able to provide
7
the children with a safe environment, even with the assistance of a family service
plan, within the reasonable period of time specified in the plan, “her parental and
custodial duties and rights may be subject to restriction or to termination or the
children may not be returned to her.”
In July 2015, DFPS presented a permanency plan and progress report to the
court. According to the report, M.D.N., D.J.N., and M.M.T.N. lived together in the
same foster home in which they were placed in April 2015. All three children had
adjusted to the home and their foster parents were meeting their family, mental
health, and social needs. But A.D.N. remained hospitalized. According to the July
report, DFPS’s primary permanency plan at the time was “family reunification.”
In November 2015, DFPS presented another permanency plan and progress
report to the court. DFPS had changed the primary permanency plan from “family
reunification” to “unrelated adoption” in September 2015, noting that although
Mother was working on her services to regain custody, she had been “untruthful
about a lot of information which places the children in harms way” and still had
services to complete. M.D.N., D.J.N., and M.M.T.N. continued to live together in
the same foster home and their foster parents were meeting their family, mental
health, and social needs. And DFPS placed A.D.N. in a separate foster home after
he was discharged from the hospital where, according to the report, A.D.N.’s
caregiver was meeting his educational, family, mental health and social needs. It
8
notes that A.D.N. visited his siblings and mother monthly. A.D.N. was taking 14
medications as he awaited a kidney transplant. The report states that A.D.N.
received dialysis four times a week and recently received a GI-tube to assist him
with feeding.
With regard to Mother’s progress, the November 2015 report states that
Mother allowed others to falsely sign her in to NA and AA meetings. It also states
that Mother is said to be working as a full-time manager at Kentucky Fried Chicken,
but had not provided DFPS her check stubs. According to the report, Mother
completed 90 days of outpatient drug treatment in June 2015 and reported that she
was participating in NA meetings weekly and had obtained a sponsor. Mother also
completed her psycho-social evaluation on April 22, 2015 and completed parenting
classes on June 8, 2015. The report also states that Mother had her own housing and
tested negative for drugs on August 21, 2015 and September 2, 2015.
After a hearing in December 2015, the trial court entered an order noting that
Mother had not demonstrated adequate compliance with the family service plan.
The court ordered that the May 2015 plan continue in effect and that Mother also
comply with the terms of an updated family service plan submitted by DFPS. The
December 2015 family service plan required Mother to:
Provide truthful information to all providers throughout the case;
Participate in a drug/alcohol assessment at a provider approved by
DFPS and follow all recommendations;
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Obtain and maintain stable housing for herself and her children and
show proof of lease/rental agreement or mortgage with her name on it
to CPS;
Obtain a female sponsor with at least five years sobriety and provide
DFPS with her sponsor name and telephone numbers;
Cooperate fully with the Houston Police Department in regards to two
rape investigations related to the alleged rape of herself and another
person;
Fully participate and attend weekly NA and AA meetings and provide
case worker with her sign in and out sheet with a licensed counselor’s
signature;
Pay monthly child support to the agency.
In January 2016, DFPS presented another permanency plan and progress
report in which it noted that Mother was in contact with the agency but had not been
truthful about pertinent information and “still needs to complete her services and
demonstrate a change in her behavior to show she has alleviated or mitigated the
reasons as to why the children came into care.” In February 2016, the trial court
entered another order stating that Mother had not demonstrated adequate compliance
with the updated family service plan. In May 2016, DFPS presented another
permanency plan and progress report, noting that the children remained in their
foster placements. According to the report, M.D.N. was “improving significantly in
school” and D.J.N. was “able to communicate better due to him learning new
words.” The report notes that it has “been hard to schedule the mother for drug tests
due to her phone being disconnected monthly.”
10
DFPS prepared another permanency plan and progress report in July 2016
stating that Mother “is no longer cooperating with the agency and not working her
needed services.” According to the report, Mother had not seen the children since
March 2016. It states that according to Mother, she missed the April visit due to
flooding and the May visit because she had surgery on her ankle/foot. DFPS’s report
further notes that Mother missed a drug test on May 16, 2016 because of work and
that she missed court on June 1, 2016. According to the report, Mother also lied
about recently giving birth to a baby girl in May 2016.
In September 2016, the court held a bench trial.2 Pohl testified regarding the
initial referrals related to neglect, consistent with the averments in her affidavit.
Shannette McBride, the caseworker assigned to the case since the children were
taken into DFPS’s custody, also testified on DFPS’s behalf. She stated that Mother
was working on the services in her family service plan and initially appeared to be
on the right track. However, DFPS discovered that Mother had lied about her
progress and she later ceased communicating with DFPS. According to McBride,
Mother reported that she was attending NA meetings, but DFPS learned that
Mother’s friend was falsely signing her in. McBride also testified that Mother was
not forthcoming in her drug and psychosocial assessment. McBride testified that
2
Mother was not present at the trial. Her counsel requested a continuance on the
basis that Mother told her that morning that she had the flu and could not attend.
The trial court denied the request for a continuance.
11
Mother had not followed the recommendations in her drug or psychosocial
assessments or attended individual therapy. She also testified that Mother failed to
provide DFPS with proof of income, stable housing, or employment and did not
provide documentation evidencing her attendance at NA meetings or meetings with
a sponsor. McBride noted that Mother is also not current on child support and has
missed court hearings and several meetings. Additionally, McBride testified that
Mother stopped visiting her children in March 2016, and thus had not seen them for
approximately six months leading up to trial. According to McBride, Mother stated
that she did not visit the children in April 2016 because her van was flooded and she
missed her May visit because she was having surgery on her ankle. McBride
testified that she did not hear from Mother again until the end of June 2016, and
Mother did not ask to see the children. McBride later tried to contact Mother by
phone and text message, but she was unable to reach her because Mother’s number
was disconnected. According to McBride, Mother “has pretty much abandoned the
children since March” and “hasn’t asked to see them.”
McBride testified that A.D.N.’s foster parents are taking care of his medical
needs and are interested in adopting him. She noted that they love A.D.N. and are
very bonded to him. McBride also testified that the other three children remain in
the same foster home and DFPS is actively seeking adoptive placements for them.
She testified that Mother provided DFPS with the name of a potential placement—
12
a friend of Mother’s adoptive parents—that the agency would look into; however,
she did not think the proposed placement had ever met the children.
DFPS put on evidence of Mother’s history of drug use:
In March 2014, Mother’s urine tested positive for marijuana when she
gave birth to D.J.N.
In December 2014, Mother’s urine tested positive for cocaine and
marijuana.
In April 2015, Mother’s hair tested positive for cocaine,
benzoylecgonine and norcocaine, though her urine tested negative for
drugs and ethyl glucuronide.
In May 2015, Mother’s hair and urine tested negative for drugs and
ethyl glucuronide.
In July 2015, Mother’s urine tested negative for drugs.
In September 2015, Mother’s hair and urine tested negative for drugs
and ethyl glucuronide.
In December 2015, Mother’s hair tested positive for cocaine,
benzoylecgonine and norcocaine, though her urine tested negative for
drugs and ethyl glucuronide.
In February 2016, Mother’s hair and urine tested negative for drugs and
ethyl glucuronide.
Mother failed to submit to further drug testing after February 2016. McBride
testified that she called Mother on several occasions to continue her testing but
Mother’s number changed, was disconnected, or Mother stated she was working and
could not leave to take a drug test. According to McBride, Mother had not
demonstrated to DFPS that she is testing clean and sober.
13
Finally, the children’s guardian ad litem presented the expert testimony of
Lisa McCartney. McCartney testified that she was familiar with and had reviewed
all of the case documents and had spoken with the children and parties associated
with the case. She testified that Mother had neglected A.D.N.’s medical needs on
multiple occasions and left the children in unfit conditions. According to
McCartney, Mother had not shown stability as evidenced by the fact that she moves
around, named a variety of different men as fathers of her children with different
versions of their names, tested positive for drugs after giving birth to D.J.N., used
drugs when she was pregnant with M.M.T.N., and failed to receive prenatal care.
McCartney further noted that Mother was not forthcoming with information about
where she lives or the identities of the children’s fathers.
McCartney stated that she spoke to Mother’s proposed placement who stated
that she had only met the oldest child, M.D.N., one time and had not met the other
children. McCartney noted that the proposed placement was single and made $1900
a month in disability income for arthritis. McCartney also testified that A.D.N. was
thriving in his current placement and that his placement family was taking care of
him medically and wanted to adopt him. According to McCartney, A.D.N. would
be eligible for a kidney transplant once he had not been hospitalized for a period of
one year—an objective he was close to reaching. McCartney testified that she plans
on assisting the caseworker with finding an adoptive placement for the other three
14
children. According to McCartney, “[t]hey’re young, and now that they’ll be legally
free for adoption, it should not be difficult to find them a home as a sibling group of
three.”
Following the trial, the trial court terminated Mother’s parental rights to all
four of her children pursuant to sections 161.001(b)(1)(D), (E), (N), and (O) of the
Texas Family Code.3 Mother appealed.
Discussion
In her first, second, third, and fourth issues, Mother asserts that the evidence
was legally and factually insufficient to support the termination of her parental rights
under Texas Family Code sections 161.001(b)(1)(D), (E), (N) or (O), respectively.
In her fifth issue, Mother challenges the trial court’s determination that termination
of her parental rights was in the children’s best interest.
A. Standard of Review
In a case to terminate parental rights under section 161.001, DFPS must
establish by clear and convincing evidence: (1) that the parent committed one or
more of the enumerated acts or omissions justifying termination and (2) that
termination is in the best interest of the child. TEX. FAM. CODE § 161.001; In re
C.H., 89 S.W.3d 17, 23 (Tex. 2002). “Clear and convincing evidence” is “the
3
DFPS also sought termination of the parental rights of various unknown and named
fathers of each child in its petition. The trial court granted the termination of the
parental rights of all of these individuals, and they are not parties to the appeal.
15
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.” TEX.
FAM. CODE § 101.007; In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
In conducting a legal-sufficiency review in a parental-rights-termination case
brought by DFPS, we must look at the entire record to determine whether the
evidence, viewed in the light most favorable to the finding, is such that a reasonable
factfinder could have formed a firm belief or conviction about the truth of the matter
on which DFPS had the burden of proof. In re J.O.A., 283 S.W.3d at 344–45 (citing
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We “must assume that the factfinder
resolved disputed facts in favor of its finding if a reasonable factfinder could do so,”
and we “should disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible.” Id. at 344.
In conducting a factual-sufficiency review, we view all of the evidence,
including disputed or conflicting evidence. Id. at 345. We should consider whether
the 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 at 266. The
evidence is factually insufficient only 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
16
conviction” regarding the finding under review. In re J.O.A., 283 S.W.3d at 345
(quoting In re J.F.C., 96 S.W.3d at 266).
DFPS bore the burden at trial to establish that the parent committed one of the
acts or omissions enumerated in section 161.001(b)(1) and that termination is in the
best interest of the child. See TEX. FAM. CODE § 161.001; In re C.H., 89 S.W.3d at
23. Termination may not be based solely on the best interest of the child as
determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987). However, “[o]nly 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). “Thus, if multiple predicate grounds are found by the trial court,
we will affirm on any one ground because only one is necessary for termination of
parental rights.” In re T.G.R.-M., 404 S.W.3d 7, 13 (Tex. App.—Houston [1st Dist.]
2013, no pet.) (citations omitted).
B. Termination under Section 161.001(b)(1)(O)
1. Applicable Law
Texas Family Code subsection 161.001(b)(1)(O) provides that the court can
order termination upon a finding by clear and convincing evidence that the parent
has
(O) failed to comply with the provisions of a court order
that specifically established the actions necessary for the
17
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 § 161.001(b)(1)(O). “Texas courts have held that substantial
compliance is not enough to avoid a termination finding under section 161.001(O).”
In re C.M.C., 273 S.W.3d 862, 875 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
2. Analysis
In her fourth issue, Mother asserts that the evidence was legally and factually
insufficient to support the termination of her parental rights under Texas Family
Code section 161.001(b)(1)(O). But Mother then concedes in the substantive portion
of her appellate brief that legally and factually sufficient evidence supports the trial
court’s predicate finding under (O). DFPS likewise responds that the evidence was
legally and factually sufficient to establish both that Mother failed to comply with
the court-ordered family service plans and that the children were in the
conservatorship of DFPS for over nine months.
The record reflects that the trial court awarded DFPS temporary managing
conservatorship of A.D.N. in March 2015 and of M.D.N., D.J.N., and M.M.T.N in
April 2015, over 17 months before trial. Thus, the evidence is uncontroverted that
DFPS had conservatorship of the children for over nine months. See TEX. FAM.
CODE § 161.001(b)(1)(O) (requiring DFPS to have permanent or temporary
18
managing conservatorship for not less than 9 months as result of child’s removal
from parent under Chapter 262 for abuse or neglect of child). And Mother does not
dispute that the children were removed for the reasons described in (O). Id.
The record further reflects that the trial court approved and ordered Mother’s
compliance with an initial family service plan and an updated family service plan,
entered after Mother failed to comply with the initial plan. Mother admits that she
did not comply with the terms of the court-ordered plans. The evidence and
testimony adduced at trial also reflect that Mother did not follow all
recommendations of the drug treatment facility, remain drug-free despite knowing
that her parental rights could be terminated, and was untruthful to DFPS in reporting
her compliance with the family service plan. McBride also testified that Mother
failed to provide DFPS with proof of income, stable housing, or employment and
did not provide documentation evidencing her attendance at NA meetings or
meetings with a sponsor. According to McBride’s testimony, Mother is delinquent
on child support, and failed to attend court hearings and several meetings.
Additionally, Mother stopped visiting the children in March 2016, and thus had not
seen them for approximately six months before trial. Finally, she stopped appearing
for drug tests over six months before trial and failed to provide DFPS with evidence
that she was sober in the months before the trial. Considering all of this evidence in
the light most favorable to the judgment, we conclude that a factfinder could
19
reasonably have formed a firm conviction or belief that Mother failed to comply with
the court ordered family service plans. Thus, we find the trial court’s finding under
section 161.001(b)(1)(O) is supported by legally sufficient evidence.
We next consider, in reviewing the factual sufficiency of the evidence, all of
the evidence, including disputed and conflicting evidence. The record reflects that
DFPS received four reports of neglect in 2014 and that Mother tested positive for
drugs at D.J.N.’s birth and two months before delivering M.M.T.N. Following the
fourth report, Mother allowed DFPS to place her children outside of the home and
initially began completing the services required by the first court-ordered service
plan. In its May 2015 permanency report, DFPS acknowledged several of Mother’s
strengths including the fact that she was working full time, moving into a house,
cooperating with the agency, in outpatient treatment, visiting A.D.N. regularly in the
hospital, and generally showing concern. Mother also completed a drug and alcohol
assessment and a psychosocial evaluation in the spring of 2015 and was reported to
have completed a 90-day outpatient program for substance abuse in June 2015. She
also tested negative for drug use in May, July, and September of 2015.
However, Mother later stopped complying with the terms of her plans. She
tested positive for drug use in December 2015, despite her young children being
removed from her custody and knowing that her parental rights were in jeopardy.
She was dishonest with DFPS regarding her progress and had a friend falsely sign
20
her in at NA meetings. Mother presented no evidence controverting DFPS’s
evidence that she failed to provide DFPS with proof of income, stable housing, or
employment. Additionally, DFPS presented uncontroverted evidence that Mother
did not visit her children or submit to a drug test in the six months before trial. While
the record reflects that Mother cited car troubles and medical reasons for missing her
April and May 2016 visits, Mother presented no evidence that she tried to otherwise
meet or interact with her children in the six months leading up to trial. Additionally,
the record suggests that Mother told DFPS that she could not appear for a drug test
due to work, but Mother presented no evidence that she tried to work with the
caseworker to otherwise demonstrate her sobriety in the months leading up to trial.
Substantial compliance with a service plan is not sufficient to avoid a
termination finding under Texas Family Code section 161.001(b)(1)(O). See In re
M.C.G., 329 S.W.3d 674, 676 (Tex. App.—Houston [14th Dist.] 2010, no pet.)
(“The Family Code does not provide for substantial compliance with a family
services plan.”); In re C.M.C., 273 S.W.3d 862, 875 (Tex. App.—Houston [14th
Dist.] 2008, no pet.) (“Texas courts have held that substantial compliance is not
enough to avoid a termination finding under section 161.001(O).”). While it is
undisputed that Mother completed certain tasks in her family service plans and that
she initially took steps to regain custody, she ultimately failed to complete all of the
tasks called for in the court-ordered plans and gave up her efforts to comply.
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Viewing all the evidence presented, including any disputed or conflicting evidence,
we find that a reasonable factfinder could have resolved the disputed evidence in
favor of a finding that Mother failed to comply with all of the terms of the court-
ordered service plans. Thus, we conclude that there is legally and factually sufficient
evidence of Mother’s failure to comply with the court ordered service plans to
support termination of Mother’s parental rights under section 161.001(b)(1)(O).
Accordingly, we overrule Mother’s fourth issue relating to the legal and factual
sufficiency of the evidence to support the trial court’s finding of a predicate act
pursuant to section 161.001(b)(1)(O). In light of our holding, we need not reach her
first, second, or third issues which relate to the trial court’s findings of other
predicate acts under section 161.001(b)(1)(D), (E), and (N).
C. Best Interest of the Children
1. Applicable Law
There is a strong presumption that the best interest of a child is served by
preserving the parent-child relationship. Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976). In assessing whether termination is in a child’s best interest, courts are
guided by the non-exclusive list of factors set forth in Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976). The factors include (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 of the child now and in the future, (4) the parental abilities of
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the individuals seeking custody, (5) the programs available to assist these individuals
to promote the best interest of the child, (6) the plans for the child by these
individuals or by the agency seeking custody, (7) the stability of the home or
proposed placement, (8) the acts or omissions of the parent which may indicate that
the existing parent-child relationship is not proper, and (9) any excuse for the acts or
omissions of the parent. Id. These factors are not exhaustive. In re C.T.E., 95
S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
DFPS “need not prove all of the factors as a condition precedent to parental
termination, ‘particularly if the evidence were undisputed that the parental
relationship endangered the safety of the child.’” Id. (quoting In re C.H., 89 S.W.3d
at 27). However, the burden is on DFPS to rebut the presumption that the best
interest of the child is served by keeping custody in the natural parents. Vasquez v.
Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex. App.—
Houston [1st Dist.] 2005, pet. denied).
2. Analysis
Mother argues that the evidence is insufficient to establish that termination of
her parental rights is in the best interest of her children because, though DFPS has
found a permanent placement for A.D.N., DFPS does not have a permanent
placement for Mother’s other three children. Mother contends that it is in the
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children’s best interest to be with their mother. DFPS disagrees, arguing that the
Holley factors weigh in favor of termination.
Neither party presented evidence at trial of the desires of the children. While
McBride testified that M.D.N. knows her mother, she noted that M.D.N. had not
expressed to her that she misses Mother. Given the lack of evidence with regard to
the first factor, we weigh the evidence in light of the other Holley factors.
“Many of the reasons supporting termination under subsection O also support
the trial court’s best interest finding.” In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013)
(citing In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)). First, under the second and third
Holley factors, we consider the children’s physical and emotional needs and the
emotional and physical danger of the children, now and in the future. 544 S.W.2d
at 371–72. Mother tested positive for drugs when she gave birth to D.J.N. and two
months before giving birth to M.M.T.N. She admitted to DFPS that she failed to
obtain prenatal care before giving birth to M.M.T.N. The record also reflects that
Mother chose unfit caregivers for M.D.N., D.J.N., and M.M.T.N. In December
2014, before M.M.T.N. was born, Mother left M.D.N. and D.J.N. with her
roommate, who fled when police arrived, leaving then four-year-old M.D.N. and
nine-month-old D.J.N. alone in an unsafe environment. Mother then requested that
M.D.N., D.J.N., and M.M.T.N. be placed with her father and her stepmother. In
April 2015, DFPS had to take emergency possession of M.D.N., D.J.N., and
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M.M.T.N. after receiving a report that there was an altercation involving a gun
outside of the home of Mother’s father and stepmother, leading to their eviction.
M.D.N., D.J.N., and M.M.T.N. are currently residing together in a foster home. The
three children have reportedly adjusted to their foster home and DFPS reported that
M.D.N. was “improving significantly in school” and D.J.N. was “learning new
words” and “able to communicate better.”
A.D.N.’s medical condition creates specific physical and medical needs
relevant under the second and third Holley factors. When A.D.N. was in his
mother’s care, he was hospitalized five times in nine months. With regard to
A.D.N.’s December 2014 hospitalization, his doctor opined that A.D.N’s symptoms
were consistent with medical neglect and suggested a significant delay in seeking
care which resulted in harm to A.D.N. A.D.N. remained in the hospital for months
following the December 2014 hospitalization and DFPS was ultimately granted
temporary conservatorship over him before his discharge. A.D.N. is currently
residing in a foster home where his foster family is meeting his needs. He has not
required hospitalization for almost one year, meaning that he is closer to becoming
eligible for a kidney transplant. Mother failed to present any evidence that she was
willing and able to meet A.D.N.’s serious medical and physical needs. She did not
see any of the children, including A.D.N., in the six months before trial. While there
is evidence that Mother initially took steps to treat her substance abuse and complete
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the tasks in the court-ordered service plan, “evidence of improved conduct,
especially of short-duration, does not conclusively negate the probative value of a
long history of drug use and irresponsible choices.” In re J.O.A., 283 S.W.3d at 346.
Here, the record reflects that Mother later tested positive for drugs, despite her
children being removed from her care and her knowledge that her parental rights
were in jeopardy. She failed to take a drug test after February 2016 or otherwise
provide evidence of her sobriety in the months leading up to trial. She also failed to
present any evidence that she is employed, has a place to live, or is capable of
providing the children with a safe home, free of hazards.
With respect to factors four, six, and seven, which relate to the parental
abilities of the individuals seeking custody, their plans for the children, and the
stability of the home or proposed placement, McBride testified that A.D.N.’s foster
home is taking care of his medical needs. She stated that A.D.N.’s foster family is
bonded to him and loves him and wants to adopt him. Mother does not challenge
this evidence. Rather, she argues that termination is not in the best interest of the
children because DFPS does not have a permanent placement for M.D.N., D.J.N.,
and M.M.T.N.
The Texas Supreme Court has noted that while evidence of placement plans
and adoptions are relevant to a best interest determination, “the lack of evidence
about definitive plans for permanent placement and adoption cannot be the
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dispositive factor; 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 E.C.R., 402 S.W.3d at 250.
Rather, we must determine, based on the entire record, whether a fact finder could
reasonably form a firm conviction or belief that termination of parental rights is in
the children’s best interest, even if DFPS has not yet “identif[ed] with precision the
child[ren]’s future home environment.” In re C.H., 89 S.W.3d at 28; see also In re
E.C.R., 402 S.W.3d at 250.
The evidence reflects that, during the pendency of the case, Mother failed drug
tests at D.J.N.’s birth, while pregnant with M.M.T.N., and while caring for infant
children, even after she knew her parental rights were in jeopardy and her children
had been removed from her custody. DFPS also presented evidence that Mother lied
regarding her progress and stopped efforts to contact her children or comply with
the requirements for retaining her parental rights over six months before trial.
Mother offered no evidence to refute this proof. McBride testified that M.D.N.,
D.J.N., and M.M.T.N. are currently all living together in a foster home and that the
agency is actively searching for suitable family adoptive placements. McBride
stated that she believed termination of Mother’s parental rights is in the children’s
best interest, noting that Mother had essentially abandoned the children since March
2016 and had not asked to see them in months.
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Next, there is limited evidence in the record regarding the fifth Holley factor—
programs available to assist Mother in promoting the best interest of the children.
However, according to the family service plan, Mother was required to receive
individual therapy, participate in parenting classes, and complete outpatient
substance abuse programs. While the record reflects that Mother completed an out-
patient program in June 2015, it also reflects that Mother eventually stopped
complying with the requisite program requirements mandated by the family service
plan.
Finally, we consider the eighth and ninth Holley factors, which concern the
acts or omissions of the parent that may indicate that the existing parent-child
relationship is not a proper one and any excuse for such acts or omissions. Mother
stopped visiting her children or cooperating with DFPS over six months before trial.
While Mother offered the DFPS caseworker explanations for why she could not visit
her children in April or May or take a drug test, she offered none for why she did
not try to otherwise visit her children or comply with the court-ordered tasks in her
service plan in the other months leading up to trial. The evidence establishes that
even after DFPS was granted temporary conservatorship of her children and Mother
had agreed to abide by the terms of the family service plan, she tested positive for
drugs and failed to maintain contact with the agency and her children, including
A.D.N. who suffers from a serious medical condition.
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After considering the entire record, we find that the trial court could have
reasonably formed a firm belief or conviction that termination of Mother’s parental
rights was in the best interest of M.D.N., D.J.N., A.D.N., and M.M.T.N, even though
DFPS has not yet identified an adoptive placement for M.D.N., D.J.N. and
M.M.T.N. See In re C.H., 89 S.W.3d at 28. Therefore, we hold that legally and
factually sufficient evidence supports the trial court’s finding that termination of
Mother’s parental rights was in the children’s best interest. See In re E.C.R., 402
S.W.3d at 250 (affirming termination was in child’s best interest, finding many of
the reasons supporting termination under subsection O also supported best interest
finding despite no evidence child’s foster family would, or would not, adopt him);
see also In re A.C., 394 S.W.3d 633, 642–43 (Tex. App.—Houston [1st Dist.] 2012,
no pet.) (holding factually and legally sufficient evidence that termination was in
best interest of child where mother completed only parts of family service plan, used
illegal drugs during her pregnancy, after undergoing a treatment plan, and a month
after her child was removed); In re Robinson, 89 S.W.3d 679, 688–89 (Tex. App.—
Houston [1st Dist.] 2002, no pet.) (holding sufficient evidence supported finding that
termination in children’s best interest where mother continued to use drugs and
failed to offer evidence that she had resources to provide suitable home for children
or for their special needs and did not complete family support programs).
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Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
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