Opinion issued May 9, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00942-CV
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IN THE INTEREST OF T.M. AND E.M., CHILDREN
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2014-03559J
MEMORANDUM OPINION
E.M. appeals from the trial court’s judgment terminating his parental rights to
his daughters, T.M. (“Theresa”) and E.M. (“Emma”). In one issue, E.M. contends
that the evidence is factually insufficient to support a finding that termination of his
parental rights is in the children’s best interest. We affirm.
Background
On April 18, 2014, the Department of Family and Protective Services received
a referral alleging neglectful supervision of Theresa (three years old) and Emma (one
year old) by their mother, A.N.T. The referral alleged that A.N.T. was charged with
child endangerment after being stopped for driving 84 to 100 miles an hour with
Theresa in the car. This incident led to her subsequent arrest for possession of
cocaine.1 Theresa was subsequently released into the care of her father, E.M.
On June 24, 2014, the Department received another referral alleging
neglectful supervision of Theresa and Emma, this time by E.M. and A.N.T. The
intake report alleged that E.M. and A.N.T. were fighting because the Department
had become involved and E.M. refused to take a drug test, E.M. had strangled A.N.T.
in the apartment, and that A.N.T. had bruises on her back and legs. Theresa and
Emma were in the apartment at the time of the altercation. According to the report,
E.M., A.N.T., and the children got into E.M.’s vehicle and A.N.T. later jumped out
and flagged down police. E.M. was subsequently arrested for possession of a
controlled substance, cocaine, and for domestic violence. The report alleged that
E.M.’s apartment was filthy with trash everywhere, Theresa and Emma slept on the
floor because there was no furniture, E.M. was going to be evicted from the
apartment, Emma had a diaper rash down to her thighs, Theresa’s hair was knotted,
1
A.N.T. had twenty-five grams of cocaine in her possession at the time of her arrest.
2
and that the children needed to be bathed. The children were removed from E.M.’s
care the same day.
On June 25, 2014, the Department filed an Original Petition for Protection of
a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship, accompanied by the affidavit of Jerri Thomas, a Department
caseworker. In its petition, the Department requested that it be named temporary
managing conservator of Theresa and Emma. In her affidavit, Thomas cited the
children’s exposure to A.N.T.’s drug use and possession, E.M.’s drug possession
while Theresa and Emma were in his care, and the parents’ domestic violence in the
presence of the children, in support of the Department’s request that the children be
removed and that it be named temporary managing conservator.
On September 4, 2014, the Department created a family service plan for E.M.
which required, among other things, that he complete a psychosocial evaluation and
follow all recommendations; successfully complete domestic violence classes;
maintain contact with the Department caseworker at least once a month; maintain
stable and safe housing for a minimum of six months consecutively and provide the
caseworker with a current lease and utility bills; provide the caseworker with all
sources of income by the 15th of each month or, if not employed, proof of his
registration with WorkSource and a list of at least three employers to whom he has
submitted an application; refrain from engaging in any criminal activities; complete
3
a drug/alcohol assessment and follow all recommendations; participate in
drug/alcohol testing and show progress by testing negative for drugs and alcohol;
and successfully complete parenting classes.
The trial began on November 30, 2015, and was recessed until February 1,
2016, at the request of A.N.T.’s counsel.2 When trial resumed, Deputy L. Lizcano
with the Harris County Constable’s Office testified that her sergeant was flagged
down in response to a disturbance involving A.N.T. and E.M. in June 2014. When
Deputy Lizcano arrived at the scene, A.N.T. told her that she and E.M. had had an
argument in his car and that she had jumped out. Deputy Lizcano testified that
A.N.T. had bruises on her back, neck, and legs. A.N.T. told her that E.M. had hit
and choked her during an argument that morning and that he had beaten her a few
days earlier. Deputy Lizcano then accompanied A.N.T. back to her apartment to
look for the children. Deputy Lizcano described the apartment as dirty with trash
everywhere, and furnished only with a blow-up mattress on the floor. A.N.T. told
Deputy Lizcano that she was not supposed to be around her children because she
had been arrested for having a suitcase full of drugs that belonged to E.M. while one
of her children was with her, and that the children had been removed from her care.
2
The recess was requested so that A.N.T., who was incarcerated at the time, could
appear at trial.
4
A.N.T. also told Deputy Lizcano that E.M. was a drug dealer, that he kept the drugs
in his truck, and that she had been with him on several drug deals.
Deputy Lizcano was then dispatched to a nearby car wash gas station where
she found E.M., Theresa, and Emma. Deputy Lizcano testified that the two little
girls “looked bad”: the toddler’s hair was badly matted, and the infant was wearing
a dirty diaper and had a severe diaper rash down her thighs. Deputy Lizcano testified
that A.N.T. changed the infant’s diaper and that E.M. had ointment in the car for
Emma’s rash. Deputy Lizcano testified that E.M. was subsequently taken into
custody and that the Department picked up the children.
After a recess, trial resumed on October 7, 2016. Prior to calling its first
witness, the Department introduced numerous exhibits, which the trial court
admitted, including the following: E.M.’s conviction for possession of a controlled
substance, for which he was sentenced to seventy days’ incarceration; E.M.’s plea
of guilty to misdemeanor theft, for which he received deferred adjudication; E.M.’s
October 15, 2014 drug test, with positive results for cocaine and marijuana; E.M.’s
February 4, 2015 drug test, with positive results for cocaine; E.M.’s August 24, 2015
drug test, with positive results for cocaine and marijuana; E.M.’s November 30, 2015
drug test, with positive results for amphetamine, methamphetamine, cocaine, and
marijuana; E.M.’s February 8, 2016 drug test, with positive results for cocaine and
5
marijuana; E.M.’s March 3, 2016 drug test, with positive results for cocaine; and
E.M.’s May 20, 2016 drug test, with positive results for cocaine.
Sergeant L. Gonzales with the Harris County Constable’s Office testified that,
on June 24, 2014, A.N.T. flagged him down and told him that she had been assaulted
by her husband, E.M. Sergeant Gonzales testified that A.N.T’s neck was red and
that she had bruising on her back and legs. Sergeant Gonzales accompanied A.N.T.
to her apartment which he described as “pretty filthy,” with trash in the rooms, and
no furniture except a blow-up mattress in the living room. Sergeant Gonzales
subsequently located E.M., Theresa, and Emma and conducted a pat down search of
E.M. which uncovered thirty-seven light blue pills in E.M.’s right front pocket. E.M.
told the sergeant that they were his wife’s pills and that he was holding them for her.
Sergeant Gonzales then searched E.M.’s vehicle where he discovered a bag with
several grams of cocaine and brass knuckles. According to Sergeant Gonzales, there
were no car seats in E.M.’s vehicle. Sergeant Gonzales stated that A.N.T. denied
that the blue pills found on E.M. were hers, and that E.M. denied assaulting A.N.T.
and instead claimed that she was gone for a couple of days and had the bruises when
she returned home. E.M. was arrested for possession of a controlled substance.
E.M. testified that the Department first became involved with his children
when A.N.T. got arrested for drug possession in April 2014. E.M. suspected A.N.T.
6
had a drug problem because she lost a significant amount of weight quickly. He
testified that he was not using or selling drugs at that time.
E.M. testified that, at the time of his arrest, he was in the process of moving
to another apartment and had left his job as a draftsman to get an oil field job in the
country because he was having issues in the city. He testified that he was storing
the children’s furniture at his sister’s house until he moved. E.M. testified that there
were car seats in his vehicle at the time of his arrest. E.M. stated that the Department
took custody of the children the day he was arrested and that he was sentenced to
seventy-four days’ confinement.3
When asked about his positive drug tests following his release from jail, E.M.
testified that he had a drug test done somewhere else and that it came back clean.
With regard to his service plan, E.M. testified that he completed parenting classes
and a substance abuse assessment. He also completed a battering intervention
program but had to attend a second program after he was discharged from the first
one due to his failure to show up. E.M. denied engaging in domestic violence with
A.N.T. He also denied using drugs and explained that his positive tests results could
have been the result of getting a “contact high” from being around other people with
3
The judgment of conviction reflects that E.M. was incarcerated for seventy days and
that he was credited with seventy-two days of time served.
7
drugs. He stated that he was around people dealing drugs in 2015 but that he is not
often around them anymore.
In addition to Theresa, Emma, and his infant son, K.M., E.M. has four other
children ranging in age from twelve to seventeen years old who live with their
mother.4 E.M. acknowledged that he has not paid any child support, or provided
diapers or clothes, for Theresa and Emma since they have been in the custody of the
Department, but he questioned whether anyone had asked him to pay child support.
E.M. testified that he has refrained from engaging in criminal activity as required by
his service plan despite being charged with theft in August 2016. According to E.M.,
he could have gotten the charge dismissed but instead accepted deferred adjudication
because he did not have time to deal with going back and forth to the courthouse.
E.M. testified that, upon his release from jail in 2014, it took him
approximately six months to find a job. He worked as a dishwasher at Pei Wei for
eight months and then at a golf course for approximately two months when he was
arrested for theft. At the time of trial, E.M. had been working for a printing service
company for approximately three weeks. E.M. stated that he has had four jobs and
lived in three different places over the course of the case.
4
When asked about child support for his other children, E.M. testified that he “paid
up in full” and owes no further support to their mother.
8
E.M. testified that, when A.N.T. was arrested in April 2014, the Department
approached him about taking Theresa and Emma. According to E.M., the
Department conducted two home visits and that the caseworker did not have any
concerns about his ability to take care of the children. E.M. testified that the girls
were in great condition when they lived with him, they were developmentally on
target, and they had no special needs. E.M. testified that A.N.T. visited the girls
after she was released from jail in April 2014, but that he never left her alone with
the girls because that was one of the conditions under which the Department released
the children into his care.
E.M. testified that, on the day he was arrested in June 2014, A.N.T. had come
over to his apartment at about 6:30 a.m. At 8:00 a.m., Thomas, the Department
caseworker, called to tell him that A.N.T. had made an allegation to the Department
that E.M. was using drugs and that he needed to take a drug test. A.N.T. told E.M.
that she wanted to watch the children instead of E.M. dropping them off with the
babysitter on his way to work. E.M. testified that when he refused, A.N.T. became
upset and would not leave the apartment. According to E.M., he picked her up and
put her outside the apartment but did not harm her. E.M. stated that, after Thomas’s
call, he had a bad feeling that morning and thought A.N.T. was going to set him up.
E.M. testified that he left the apartment with A.N.T. and the girls and intended
to drop A.N.T. at her friend’s house. When they were two blocks away from the
9
apartment, A.N.T. became upset and jumped out of the car. E.M. then took the girls
to the nearby washateria so he could do some wash. While he waited on the laundry,
he took Theresa and Emma outside where they played in the dirt. He testified that
he bought some candy for the girls at the corner store, and that Emma got the candy
on her clothes and Theresa’s hands became sticky from the candy. According to
E.M., Theresa has a habit of twirling her hair which causes knotting. He testified
that the matting in Theresa’s hair was due to her twirling her hair the previous night
and her sticky fingers.
E.M. stated that he found a bag of pills underneath the passenger seat where
A.N.T. had been sitting before jumping out of the car. When the police arrived at
the washateria thirty minutes later, they discovered the pills on him. According to
E.M., after the police searched his vehicle and were unable to find anything, A.N.T.
got in the car and pulled something out and gave it to an officer. E.M. stated that,
as a result of his drug conviction, he lost his job and his apartment and his vehicle
was impounded.
E.M. stayed with his cousin for a month and then lived on the streets for a
while during which time his younger brother gave him money. E.M. testified that
his cousin gave him money as well, that he visited his cousin’s house twenty or thirty
times during the pendency of the case (the last visit was in January 2016), and that
10
he saw people there using cocaine. He testified that his cousin was later arrested for
drugs.
E.M. initially testified that he had not used any drug during the pendency of
the case. He later stated that, other than smoking marijuana on November 26, 2015,
he has not used any drugs. E.M. acknowledged that he told the trial court during a
November 2015 hearing that he had been using cocaine, but only because his
attorney advised him to admit it.
At the time of trial, E.M. had been living in his apartment since February 2016.
E.M. admitted that the lease has his friend Gabriel Castada’s name on it, and that the
leasing office did it so that E.M. would be able to lease the apartment. E.M. stated
that when the children’s guardian ad litem visited him in April 2016, he owned two
vehicles. He testified that he bought the second vehicle because the first one began
to have problems and he needed to be able to drive to work. When asked why he
bought a second vehicle when he claimed not to have any money to pay child support
or provide anything for the children, E.M. responded that nobody ever asked him to
support the children.
E.M. testified that he had no reason to believe that A.N.T. was using drugs
before her arrest in April 2014. According to E.M., A.N.T. did not appear unstable
or unreliable while caring for Theresa and Emma. He further testified that A.N.T.
11
had previously taken the girls out by herself so he had no reason for concern when
she left with Theresa the evening of her arrest.
E.M. testified that when he visited the girls during the case, they ran up to him
and smiled, and that he played with them and read books to them during visits. When
asked about his future plans for Theresa and Emma, E.M. responded that he intended
to take great care of them.
Trial continued on October 28, 2016. Tenille Whitlock, the conservator
caseworker, testified that the Department initially received a referral alleging
neglectful supervision of Theresa by A.N.T. who reportedly engaged in drug use and
intercourse in Theresa’s presence. A.N.T. led police on a high-speed chase that
resulted in her arrest. Pursuant to a parental child safety placement plan, the
Department released Theresa and Emma into E.M.’s care with an agreement that he
would not permit A.N.T. unsupervised visitation with them.
Whitlock testified that, in June 2014, the Department received a referral of
neglectful supervision of the children by E.M. and A.N.T., involving allegations of
domestic violence and drug possession. She stated that the report was validated after
police found drugs in E.M.’s vehicle with the children present and A.N.T. was
observed with bruises.
Whitlock developed family services plans for A.N.T. and E.M. and reviewed
E.M.’s plan with him while he was in jail on the drug charge. E.M. gave Whitlock
12
the following names of several relatives as possible placements for the children:
Sandra Ortega, Jennifer Ortega, Faye Bishop, and Christy Thornton. Sandra and
Jennifer Ortega told her Whitlock that they would think about it but that they never
returned Whitlock’s calls. Faye told Whitlock not to call her again about the case,
and Thornton was not a suitable placement due to a previous history with the
Department. E.M. gave Whitlock several more names of possible placements: his
sister, Tierasha Adair, Reverend Ruben Wade, and Lastephine Richards. When
contacted, Reverend Wade and Richards told Whitlock that they would have to
discuss it with their families but they neither called back nor returned the
Department’s calls. As for Adair, the children’s paternal aunt, Whitlock indicated
that she was a prospective placement but that Adair later called Whitlock back and
told her that E.M. had come by her house and “suggested some words to her,” and
that she would not be able to take the children.
With regard to the required tasks of his family service plan, Whitlock testified
that E.M. completed a psychosocial evaluation and parenting classes, and that he
submitted to drug tests, but that he did not follow the recommendation that he attend
Alcoholics Anonymous meetings. After three failed attempts, E.M. ultimately
completed domestic violence classes. Whitlock testified that, other than a period
between February to May 2015, E.M. has maintained contact with her.
13
The plan also required that E.M. maintain stable housing for a minimum of
six months and provide proof of a lease and utility bills. Whitlock stated that E.M.
provided her with an apartment lease but later indicated that he was actually
sub-letting the apartment from Castada. Whitlock has been unable to validate the
lease and E.M. has not provided her with any utility bills. Whitlock also stated that
E.M. has not provided her with the identifying information of any adult living in his
home as required by his service plan. When Whitlock conducted a visit on May 4,
2016, there was a female present in E.M.’s apartment. When she asked the woman
for her information, the woman gave Whitlock her first name only, and E.M stated
that she was only going to be there a short time. Whitlock testified that there was
living room furniture and a trundle bed for the girls in the apartment.
The plan also required E.M. to provide his caseworker with proof of all
sources of income. Whitlock testified that, other than paycheck stubs presented to
the court in November 2015, E.M. has not provided any proof of his income.
Whitlock also testified that E.M. has not complied with the plan requirement that he
refrain from engaging in criminal activity because he was arrested for theft in August
2016.
With regard to E.M.’s drug tests, Whitlock testified that most of E.M.’s
urinalysis tests were negative but that he had seven positive hair follicle tests
between October 2014 and May 2016. Whitlock testified that E.M. participated in
14
a substance abuse assessment in 2014 in which he disclosed that he did not use drugs
but that, in light of his positive drug test results, he did not provide truthful answers
in his assessment.
The plan also required E.M. to demonstrate and verbalize learned behaviors
consistent with his children’s ages and developmental capacities during family visits
and to verbalize learned behaviors to his caseworker. Whitlock stated that E.M. has
never verbalized ways in which he can nurture his children. In his visits with the
children, E.M. would either take selfies or pictures with them, or the children would
play in the room while he sat back in the corner. Whitlock stated that E.M. had
bi-monthly visits scheduled during the case, and that he missed visits in October and
November 2014 as well as his visits from February to May 2015.
During his last visit in October 2016, E.M. came with another woman and her
two children to the visit. Whitlock testified that E.M. sat in the corner of the room
during the entire visit, and that after the children began to eat the snacks Whitlock
had provided for Theresa and Emma, she asked the other woman to take the children
out of the room. Whitlock stated that E.M.’s eyes were red and glazed, and that
when she asked him what was wrong, he told her that he had a migraine. Whitlock
asked E.M. to take a drug test after the visit. The results of the urinalysis test were
negative but his hair follicle test was positive for cocaine and marijuana. As a result
of that visit and his regular positive drug tests, the Department requested that E.M.’s
15
visitation be stopped. E.M. subsequently sent Whitlock several text messages. In
one text, E.M. wrote, “I took care of my daughters for eight months alone before you
whores stepped in our life” and “Tenille, I promise you I always get even in the end.”
E.M. denied that the message was intended as a threat.
Whitlock testified that Theresa and Emma have not once asked her about E.M.
during the pendency of the case. Whitlock testified that when Theresa came into the
Department’s care, she had a small frame and the caregivers had to cut her hair
because of the severe matting. Whitlock stated that Theresa was very quiet and not
developmentally on target, and that Emma was also very quiet and had some
difficulty with motor skills, particularly with her ability to walk. While in the
Department’s care, Theresa has received speech therapy and Emma has received
speech therapy and occupational therapy. According to Whitlock, the girls have
since blossomed. Both girls are developmentally on target. Theresa is currently in
kindergarten, is very talkative, follows direction well, and has begun learning sight
words. Emma is doing much better and is speaking more although she still has some
issues with her motor skills and her balance that require daily hands-on work to help
her continue to develop.
Theresa and Emma have been in an adoptive placement since May 2015.
Whitlock testified that they refer to their caregivers as Mommy and Daddy, and are
bonded with them as well as the family’s young adoptive son whom they refer to as
16
their brother. Whitlock stated that the children’s current placement is appropriate,
the girls are happy with their caregivers, and the caregivers would like to adopt the
girls.
After their son K.M. was born, E.M. and A.N.T. provided the following names
as possible placements for all three children: Cherrelle Valentine, Shatiqua Ross,
Patricia Hood, Jacqueline Wilmore, Kiara Walker, and Jonathan Manuel. Whitlock
testified that although Valentine provided her information for a background check
and told Whitlock that she would discuss it with her family, she never responded to
the Department’s calls or letter. Ross did not respond to the numerous messages left
by the Department. Hood stated that she did not have enough furniture and was
diabetic but would consider being a foster parent in two years once she was retired.
Wilmore told Whitlock that she was ill and did not have a back-up plan for the
children, and that she could be a temporary placement only. The Department
attempted to contact Walker but her phone number did not work. Manuel, the
children’s paternal uncle, came to one of the family visits but told Whitlock that he
barely had a place to stay himself and was unable to take the girls. Whitlock testified
that the Department has made every effort to try and place Theresa and Emma with
a family member but that no one has been willing or able to take the children.
Whitlock testified that the Department was seeking termination of E.M.’s
parental rights to Theresa and Emma and that the Department believed that
17
termination is in the children’s best interest because E.M. failed to comply with the
family plan of service and had repeated positive drug tests from October 2014 until
March 2016. Whitlock stated that E.M. admitted to being in and out of a drug house
to get money and that he has not shown that he can provide the children with a safe
and stable environment. She further stated that E.M. never brought diapers, clothes,
or presents for the girls’ birthdays or for Christmas. Whitlock testified that the
Department’s goal for Theresa and Emma was unrelated adoption.
A.N.T. testified that E.M. was a family man and involved in his children’s
lives. She stated that E.M. provided financially for all of his children and bought
toys, games, clothes, and shoes for them. A.N.T. stated that E.M. never threatened
her or became angry with her.
According to A.N.T., she first started using drugs around Easter 2014 because
she and E.M. were having problems stemming from the fact that E.M. had had an
affair and A.N.T. was hanging out with her mother, a drug addict. A.N.T. testified
that she went by the apartment to see the children in June 2014. Before going into
the apartment, A.N.T. put three grams of cocaine in E.M.’s car because she did not
want to bring drugs around the children. She testified that she became mad when
E.M. would not let her watch the girls instead of dropping them off at the babysitter.
She initially got into the car with E.M. so that he could drop her off at a friend’s
house but later jumped out because she was still angry at him. She flagged down an
18
officer and told him that E.M. had hit her because she was “out for revenge.” She
testified that when she heard E.M. tell the police that the pills were hers, she became
angry that he would not “take this charge” for her so she also told the police that he
had drugs in the car. A.N.T. testified that, despite what she told the officer at the
time, her bruises were not caused by E.M. but rather from sleeping under a bridge
with her mom the previous night. She also stated that she, not Sergeant Gonzales,
pulled the cocaine out of the car. After E.M. was released from jail, he and A.N.T.
were homeless together for a while. A.N.T. testified that she and E.M. had several
family visits with the girls and that the visits were great.
According to A.N.T., she and E.M. did drugs twice together. She stated that
E.M. knew she was using drugs and that he used to throw them out of the window
when he was driving which made her mad. When A.N.T. found out that she was
pregnant with K.M., E.M. told her to slow down and tried to help her get sober and
clean. She stated that E.M. began using drugs because of the pressure he was under
trying to get her clean. She stated that she lied to Thomas when she told her that
E.M. was using drugs in June 2014 because she was mad that he would not allow
her to see the children unsupervised.
At the conclusion of trial, the trial court found that termination of E.M.’s
parental rights to Theresa and Emma was warranted under subsections (D), (E), and
19
(O) of Family Code section 161.001(b)(1),5 and that termination was in the
children’s best interest.6 The trial court signed its termination order on November
7, 2016. This appeal followed.
Discussion
On appeal, E.M. acknowledges that the evidence is factually sufficient to
support the predicate findings under subsections (D), (E), and (O) and does not
challenge those findings on appeal. He also notes that this evidence is legally
5
As relevant here, section 161.001(b)(1) states that the court may order termination
of the parent-child relationship if the court finds by clear and convincing evidence,
in addition to the best interest finding, that the parent has:
(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; [or]
....
(O) 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(b)(1)(D), (E) & (O) (West 2014).
6
The trial court also terminated A.N.T.’s parental rights based on her affidavit of
relinquishment pursuant to section 161.001(b)(1)(K), and found that termination
was in the children’s best interest.
20
sufficient to support the trial court’s finding that termination was in the children’s
best interest. In his sole issue, E.M. argues that the evidence is factually insufficient
to support the trial court’s best interest finding.
A. Burden of Proof and Standard of Review
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355, 361 (Tex. 2003). A parent’s rights to the “companionship, care,
custody, and management” of his or her child is a constitutional interest “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102
S. Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
Accordingly, we strictly scrutinize termination proceedings and strictly construe the
involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d
18, 20 (Tex. 1985).
In a case to terminate parental rights under section 161.001 of the Family
Code, the Department must establish, by clear and convincing evidence, that (1) the
parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001 (West Supp. 2014). Clear and convincing evidence is “the measure
or degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” Id. § 101.007
21
(West 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate
finding under section 161.001(b)(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 at 362.
When conducting a factual sufficiency review, we consider and weigh all of
the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009). “If, in light of the entire record, the disputed evidence that a
reasonable fact finder could not have credited in favor of the finding is so significant
that a fact finder could not reasonably have formed a firm belief or conviction, then
the evidence is factually insufficient.” Id. We give due deference to the factfinder’s
findings and we cannot substitute our own judgment for that of the fact finder. See
In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
B. Best Interest of the Child
There is a strong presumption that the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). Prompt and permanent placement of the child in a safe environment
is also presumed to be in the child’s best interest. TEX. FAM. CODE ANN. §
263.307(a) (West Supp. 2014).
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Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding: the desires of the
child; the present and future physical and emotional needs of the child; the present
and future emotional and physical danger to the child; the parental abilities of the
persons seeking custody; the programs available to assist those persons seeking
custody in promoting the best interest of the child; the plans for the child by the
individuals or agency seeking custody; the stability of the home or proposed
placement; acts or omissions of the parent which may indicate the existing parent-
child relationship is not appropriate; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list of factors
is not exhaustive, however, and evidence is not required on all of the factors to
support a finding that terminating a parent’s rights is in the child’s best interest. Id.;
In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting
termination under one of the grounds listed in section 161.001(b)(1) can also be
considered in support of a finding that termination is in the best interest of the child.
See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) (holding same evidence may be
probative of both section 161.001(b)(1) grounds and best interest).
In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment, including: the child’s age and physical and mental vulnerabilities; the
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willingness and ability of the child’s family to seek out, accept, and complete
counseling services and to cooperate with and facilitate an appropriate agency’s
close supervision; the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; and whether
the child’s family demonstrates adequate parenting skills, including providing the
child with minimally adequate health and nutritional care, a safe physical home
environment, and an understanding of the child’s needs and capabilities. TEX. FAM.
CODE ANN. § 263.307(b) (West Supp. 2014); In re R.R., 209 S.W.3d at 116.
1. Children’s Desires and Needs, and Plans for the Children
The first and second Holley factors consider the desires of the child and the
present and future physical and emotional needs of the child. Holley, 544 S.W.2d at
372. The sixth Holley factor looks at the plans for the child by the individual or
agency seeking custody. Id.
When children are too young to express their desires, the factfinder may
consider whether the children have bonded with the proposed adoptive family, are
well-cared for by them, and whether they have spent minimal time with a parent.
See In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). A child’s need for permanence through the establishment of a “stable,
permanent home” has been recognized as the paramount consideration in a best
interest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas
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2007, no pet.). Therefore, evidence about the present and future placement of the
child is relevant to the best interest determination. See In re C.H., 89 S.W.3d 17, 28
(Tex. 2002).
At the time of trial, Theresa was four years old and Emma was two years old
and, thus, too young to testify about their desires. See In re T.G.R.-M., 404 S.W.3d
7, 16 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The trial court heard testimony
that Theresa and Emma have been in a foster placement since May 2015, that they
are bonded with their foster parents whom they refer to as Mommy and Daddy, and
that they are also bonded with the family’s young adoptive son whom they refer to
as their brother. Whitlock testified that the children’s current placement is
appropriate, the girls are happy with their caregivers, and that the foster parents
would like to adopt the girls. E.M. testified that when he visited the girls, they ran
up to him, smiling. The trial court also heard testimony that Theresa and Emma did
not once ask about E.M. during the pendency of the case.
E.M. testified that when the children lived with him, they were
developmentally on target and had no special needs. When asked about his plans
for Theresa and Emma, E.M. testified that he plans to take great care of them.
Whitlock testified that when Theresa came into the Department’s care, she was very
quiet and not developmentally on target. She testified that Emma was also very quiet
and had some difficulty with motor skills, particularly her ability to walk. While in
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the Department’s care, Theresa has received speech therapy and Emma has received
speech therapy and occupational therapy. According to Whitlock, the girls have
since blossomed and are developmentally on target. Theresa is currently in
kindergarten, is very talkative, follows direction well, and has begun learning sight
words. Emma is doing much better and is speaking more although she still has some
issues with her motor skills and her balance that require daily hands-on work to
continue in her development. This evidence supports the trial court’s best interest
finding under the first, second, and sixth Holley factors. See also TEX. FAM. CODE
ANN. § 263.307(b) (listing child’s age, child’s physical and mental vulnerabilities,
and parent’s understanding of child’s needs and capabilities among factors to be
considered in determining whether child’s parents are willing and able to provide
child with safe environment).
2. Endangering Conduct and Parental Acts or Omissions
The third Holley factor is the present and future physical danger to the child.
Holley, 544 S.W.2d at 372. The eighth factor considers acts or omissions of the
parent that indicate the parent-child relationship is improper. Id.
The evidence shows that E.M. tested positive for illegal drugs, including
cocaine, seven times between October 2015 and May 2016. With regard to his drug
usage, E.M. provided conflicting testimony. At trial, E.M. initially testified that he
did not use drugs and that that his positive drug tests could have been the result of
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getting a contact high from being around other people with drugs. He subsequently
testified that, other than smoking marijuana in November 2015, he has not used any
drugs during the pendency of the case. However, E.M. later acknowledged that he
admitted to the trial court at a November 2015 hearing that he had been using cocaine
but stated that he said it only because his attorney advised him to disclose it.
A parent’s past conduct is probative of his future conduct when evaluating the
child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San
Antonio 2013, no pet.). E.M.’s inability to refrain from drug use during the
pendency of the case reflects an inability to perceive the danger that parental drug
use would pose to a child. See In re G.A., No. 01-11-00565-CV, 2012 WL 1068630,
at *6 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (mem. op.) (concluding
that father’s concealment of drug use and continued relationship with mother who
abused drugs demonstrated father’s inability to perceive danger that parental drug
use posed to child).
E.M. argues that the most salient feature of his test results is the declining
level of drugs over time and the fact that his last test in June 2016 was negative.
However, a fact finder is not required to ignore a history of narcotics use merely
because it abates as trial approaches. See Cervantes-Peterson v. Texas Dep’t of
Family & Protective Servs., 221 S.W.3d 244, 254 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (concluding that despite mother’s contention that she had stopped
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using cocaine and marijuana, trial court was not required to ignore her history of
narcotics use merely because she testified that it had abated before trial); In re
M.G.D., 108 S.W.3d 508, 513 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)
(noting that jurors are not required to ignore long history of dependency and abusive
behavior merely because it abates as trial approaches). Further, Whitlock testified
that she asked E.M. to take a drug test following his visit with the children in October
2016, and that the results of the test were positive for cocaine and marijuana.
Moreover, E.M.’s arrest in June 2014 stemmed from A.N.T.’s report to police
that he had physically abused her, and E.M. was convicted for possession of a
controlled substance after the police found Xanax in his pocket and cocaine in his
car. E.M. also testified that he was around people dealing drugs in 2015 but that he
is not often around them anymore, that he visited his cousin’s house twenty or thirty
times during the pendency of the case (with the last visit in January 2016) where he
saw people using cocaine, and that the cousin, with whom he had once lived, was
later arrested for drugs. See In re M.S.L., No. 14-14-00382-CV, 2014 WL 5148157,
at *7 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no pet.) (mem. op.)
(concluding father’s series of crimes, including drug-related offenses and domestic
violence occurring before and after children’s births, supported trial court’s best
interest finding).
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This evidence supports the trial court’s best interest finding under the third
and eighth Holley factors.
3. Parental Abilities and Stability of the Home
The fourth Holley factor is the parental abilities of the person seeking custody.
Holley, 544 S.W.2d at 372. The seventh factor looks at the stability of the home or
proposed placement.
Among other tasks, E.M.’s family service plan required that he demonstrate
and verbalize learned behaviors consistent with his children’s ages and
developmental capacities during family visits and verbalize them to his caseworker.
Whitlock testified that E.M. never verbalized ways in which he could nurture his
children. During his family visits, E.M. would either sit and take selfies or pictures
with the children, or sit back in the corner while the children played. E.M. testified
that, contrary to Whitlock’s testimony, Theresa and Emma ran up to him when he
arrived for visits, and that he played with them and read them books. Whitlock stated
that E.M. had bi-monthly visits scheduled during the case and that he missed visits
in October and November 2014 and the visits from February to May 2015.
Whitlock also testified that E.M.’s eyes were red and glazed at his last family
visit in October 2016. Whitlock asked E.M. to take a drug test after the visit and the
results of the urinalysis were negative but the hair follicle test was positive for
cocaine and marijuana. A parent’s exercise of poor judgment currently and in the
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past demonstrates an inability to provide adequate care for the child. See In re K.S.,
420 S.W.3d 852, 855 (Tex. App.—Texarkana 2014, no pet.) (noting parental drug
abuse is reflective of poor judgment and is also factor to be considered in best interest
analysis); Wischer v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00165-
CV, 2012 WL 3793151 at *10 (Tex. App.—Austin Aug. 29, 2012, no pet.) (mem.
op.).
On the day of E.M.’s arrest in June 2014, Deputy Lizcano and Sergeant
Gonzales described E.M.’s apartment where he lived with Theresa and Emma as
dirty with trash everywhere, and with the only furniture being a blow-up mattress on
the floor. E.M. testified that he was in the process of moving to another apartment
and that the children’s furniture was at his sister’s house.
E.M.’s family service plan required that he maintain stable housing for a
minimum of six months and provide proof of a lease and utility bills. E.M. testified
that he has held four jobs and lived in three different places over the course of the
case. Whitlock stated that E.M. provided her with his current apartment lease but
later told her that he was actually sub-letting the apartment from a friend. At the
time of trial, Whitlock was unable to validate the lease and E.M. has not provided
her with any utility bills. Whitlock testified that there was living room furniture and
a trundle bed for the girls in the apartment.
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E.M.’s family service plan also required E.M. to provide his caseworker with
proof of all sources of income. Whitlock testified that, other than paycheck stubs
presented to the court in November 2015, E.M. has not provided proof of income to
Whitlock. The trial court heard testimony that E.M. bought a second vehicle while
at the same time he claimed not to have any money to provide support for the
children. This evidence supports the trial court’s best interest finding under the
fourth and seventh Holley factors. See also TEX. FAM. CODE ANN. § 263.307(b)
(listing adequate parenting skills and a safe physical home environment as factors to
be considered in determining best interest of child).
In light of the entire record, the disputed evidence that a reasonable fact finder
could not have credited in favor of the best interest finding is not so significant that
a fact finder could not reasonably have formed a firm belief or conviction that
termination of E.M.’s parental rights is in Theresa and Emma’s best interest. See In
re H.R.M., 209 S.W.3d at 108. After considering the relevant factors under the
appropriate standards of review, we hold that the evidence is factually sufficient to
support the trial court’s finding that termination of the parent-child relationship is in
the children’s best interest. Accordingly, we overrule E.M.’s issue.
Conclusion
We affirm the trial court’s judgment.
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Russell Lloyd
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
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in the Interest of T.M. and E. M., Children
Combined Opinion