In the interest of D.S. and J.J., children--Appeal from 326th District Court of Taylor County

Opinion filed January 25, 2007

In The

Eleventh Court of Appeals

__________

   No. 11-06-00157-CV

__________

   IN THE INTEREST OF D.S. AND J.J., CHILDREN

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 5909-CX

M E M O R A N D U M O P I N I O N

This case involves the involuntary termination of parental rights under Tex. Fam. Code Ann. ch. 161 (Vernon 2002 & Supp. 2006). The trial court terminated the parent-child relationship between Jacqueline Sheffield and her children D.S. and J.J. Sheffield argues in four issues on appeal that the evidence was legally and factually insufficient to support the trial court=s order for termination. We affirm.

Factual Summary

Sheffield is the mother of D.S. and J.J. D.S. was born on May 17, 2002, and J.J. was born on September 27, 2004. The Texas Department of Health and Family Protective Services became involved with the family in November 2004. The trial court named the Department as the temporary managing conservator of the children in November 2004, and the Department placed the children in foster care. The primary risk for the family environment was Sheffield=s drug abuse. Sheffield admitted that she used drugs, specifically crack cocaine, during her pregnancy with J.J. J.J. was a premature baby born of about thirty or thirty-one weeks gestation. J.J. had cocaine in his system at birth, and he also had congenital syphilis. Sheffield stopped using drugs for some period of time when J.J. was in the hospital, but she started using cocaine again while J.J was still in the hospital. J.J. has a profound hearing loss, probably related to the congenital syphilis.

The Department initially sought to reunify Sheffield with her children. In December 2004, Sheffield signed a family service plan. Sheffield complied with some of the requirements in the plan, but she failed to comply with others. She missed numerous scheduled visits with her children. She also had a number of positive tests for drugs. Sheffield was unable to keep steady employment and did not have a stable home environment. She moved around from place to place, staying with friends. During the summer of 2005, she moved in with her father in his house in Abilene. She was serving probation for six years for a 2003 robbery conviction. Because Sheffield could not get off of drugs, she requested to go to the Substance Abuse Felony Punishment Facility. She spent eight months in SAFPF. Sheffield was released from SAFPF on March 20, 2006, and was then admitted for a ninety-day stay at the Oak Tree facility, a halfway house in Abilene. However, Sheffield was discharged from the Oak Tree facility the following week when she tested positive for alcohol.

On April 25, 2006, and on May 8, 2006, the trial court conducted a bench trial in this cause. The trial court found by clear and convincing evidence that Sheffield:

(1) 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;

(2) 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; and

(3) 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.

The trial court further found that termination of the parent-child relationship between Sheffield and the children was in the children=s best interest.[1]

Issues on Appeal

Sheffield presents four issues for review. In the issues, she challenges the legal and factual sufficiency of the trial court=s findings set forth above.

Standard of Review

Texas courts have long recognized that the natural right existing between a parent and a child is of Aconstitutional dimensions.@ Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976). There is a strong presumption that the best interest of a child is served by keeping the child with the natural parent. In re G.M., 596 S.W.2d 846 (Tex. 1980). Thus, involuntary termination statutes are strictly scrutinized in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20-21 (Tex. 1985).

Due process requires that the grounds for termination be established by clear and convincing evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (citing Santosky v. Kramer, 455 U.S. 745, 769 (1982)); In re J.P.H. & S.P.H., 196 S.W.3d 289, 292 (Tex. App.C Eastland 2006, no pet.). This requires a 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 Ann. ' 101.007 (Vernon 2002); In re J.P.H. & S.P.H., 196 S.W.3d at 292.

When conducting a legal sufficiency review, we review the entire record in the light most favorable to the finding and determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); In re J.F.C., 96 S.W.3d at 266; In re J.P.H. & S.P.H., 196 S.W.3d at 292. We must assume that the fact-finder resolved disputed facts in favor of its finding. Phillips v. Tex. Dep=t of Protective & Regulatory Servs., 149 S.W.3d 814, 817 (Tex. App.CEastland 2004, no pet.). We must also disregard all evidence that a reasonable fact-finder could have disbelieved or found incredible, but we cannot disregard undisputed facts. In re J.F.C., 96 S.W.3d at 266.

When conducting a factual sufficiency review, we review the entire record, including evidence in support of and contrary to the judgment, and give due consideration to evidence the trial court could have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); In re J.P.H. & S.P.H., 196 S.W.3d at 292. We then determine 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. In re C.H., 89 S.W.3d at 25; In re J.P.H. & S.P.H., 196 S.W.3d at 292. We also consider whether any disputed evidence is such that a reasonable fact-finder could not have resolved that evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266.

Grounds for Termination

To terminate parental rights, the proponent must prove by clear and convincing evidence that a parent committed one or more of the acts or omissions set forth in Section 161.001(1) and that termination of parental rights is in the child=s best interest. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re B.L.D. & B.R.D., 113 S.W.3d 340, 353-54 (Tex. 2003); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). Section 161.001(1)(E) allows for termination of parental rights if the parent Aengaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.@

AEndanger@ means more than a threat of metaphysical injury or a less-than-ideal environment: the conduct need not actually injure the child nor is it necessary that the conduct be directed at the child. Tex.Dep=t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The Department need not establish the specific danger to the child=s well-being as an independent proposition; the danger may be inferred from parental misconduct. In re J.J. & K.J., 911 S.W.2d 437, 440 (Tex. App.CTexarkana 1995, writ denied). To determine whether termination is necessary because of endangerment, courts may look to parental conduct both before and after the child=s birth. In re T.N., B.N., & K.N., 180 S.W.3d 376, 383 (Tex. App.CAmarillo 2005, no pet.); In re U.P., 105 S.W.3d 222, 234 (Tex. App.CHouston [14th Dist.] 2003, pet. denied); In re D.M., B.W., & J.C.W., 58 S.W.3d 801, 812 (Tex. App.CFort Worth 2001, no pet.). Drug abuse during pregnancy constitutes conduct that endangers a child=s physical and emotional well-being. In re W.A.B., 979 S.W.2d 804, 806 (Tex. App.CHouston [14th Dist.] 1998, pet. denied); Dupree v. Tex. Dep=t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.CDallas 1995, no writ). Conduct that subjects a child to a life of uncertainty and instability also endangers the child=s physical and emotional well-being. In re S.D. & K.D., 980 S.W.2d 758, 763 (Tex. App.CSan Antonio 1998, pet. denied). Endangerment may also be satisfied by showing that a parent engaged in a Acourse of conduct@ that endangered the child=s physical or emotional well-being. Boyd, 727 S.W.2d at 534; In re U.P., 105 S.W.3d at 234.

Sheffield argues in her first issue that the evidence was legally and factually insufficient to support the trial court=s finding that she engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well-being of the children. We will examine the record and determine, in accordance with the standards set out above, whether the Department met its burden of proof.

The evidence showed that Sheffield was twenty-two years old at the time of trial. D.S. was born on May 17, 2002, and J.J was born on September 27, 2004. Sheffield testified that she received a six-year probated sentence for a robbery conviction in 2003. The Department presented evidence establishing a long history of drug abuse on the part of Sheffield. Sheffield testified that she began using drugs when she was fifteen years old and and that she continued to use them on a regular basis until she was twenty-two years old. Sheffield described crack cocaine as her drug of choice, but she said that she had used other illegal drugs in the past. Sheffield said that she used cocaine during her pregnancy with J.J. Sheffield and J.J. both had cocaine in their systems when J.J. was born at Abilene Regional Medical Center.

J.J. was a premature baby of about thirty to thirty-one weeks gestation. Dr. James R. Marshall, a neonatologist, testified that he had been J.J.=s attending physician since birth. Dr. Marshall said that the use of cocaine and related drugs may result in premature labor. J.J. was placed in the neonatal intensive care unit at the hospital. Dr. Marshall diagnosed J.J. with, and treated J.J. for, congenital syphilis. Dr. Marshall said that J.J. had a profound hearing loss B probably caused by the congenital syphilis B and that J.J. was fitted with hearing aids. Dr. Marshall also said that J.J. had significant developmental delay. Dr. Marshall believed that J.J. was periodically being seen at the West Texas Rehabilitation Center for speech and language and occupational therapy evaluations. Dr. Marshall testified that J.J. was discharged from the hospital seven or eight weeks after his birth.

The Department became temporary managing conservator of D.S. and J.J. during November 2004. Sheffield said that she did not use drugs for some period of time while J.J. was in the hospital. Sheffield received inpatient treatment for her drug addiction problems at the Jubilee House toward the end of 2004 and into 2005, but she did not successfully complete the program. Sheffield said that she Aslid back into [her] addiction@ while J.J. was still in the hospital. J.J. went directly from the hospital into the foster home. The Department placed D.S. in the same foster home, and D.S. and J.J. remained together in the same foster home up until the time of trial. Sheffield acknowledged that she used drugs on a regular basis after the Department removed her children from her.

Sheffield agreed that the Department=s initial plan was to reunify D.S. and J.J. with her. In December 2004, Sheffield signed a family service plan. Sheffield agreed to perform a number of requirements in the plan. The plan required in part that Sheffield complete a psychological evaluation, complete a drug assessment, attend drug therapy sessions, attend counseling for improvement of parenting skills, enroll in a GED class and make satisfactory progress toward her GED, secure adequate housing for D.S. and J.J., save money in order to establish a safe home for the children, attend twice weekly visits with D.S. and J.J., attend all of D.S.=s and J.J.=s medical appointments, demonstrate that she understood and could meet D.S.=s and J.J.=s medical needs, comply with the terms of her probation, and complete a narcotics anonymous program.

Sheffield complied with some of these requirements. For example, she submitted to a psychological evaluation and completed the drug assessment. However, the evidence established that Sheffield failed to comply with many aspects of the plan after she Aslid back into [her] addiction.@ For example, Sheffield said that she stopped going to drug counseling and that she Adropped@ parenting and counseling sessions when she started using drugs again. Sheffield also started missing visits with D.S. and J.J. Sheffield said that she missed twelve visits in a row during one period of time. At the time of trial, Sheffield had not obtained her GED. Sheffield testified that she had lived in a lot of different places with friends since the Department had removed her children. Sheffield said that she had not maintained steady employment and that she was looking for a job at the time of trial. She also said that she had no source of income at the time of trial.

Dr. Stephen M. Osborne, a clinical psychologist, performed a psychological evaluation of Sheffield in December 2004. Dr. Osborne testified that he diagnosed Sheffield Awith several major personality disorders that are of serious concern.@ He testified that individuals with these types of personality disorders usually Arequire fairly intensive therapeutic intervention or major life changes@ in order to make changes. Dr. Osborne believed that Sheffield would put D.S.=s and J.J.=s needs secondary to her own needs.

Sheffield=s father, Michael Don (Mike) Sheffield, bought a house in Abilene in 2005. Sheffield testified that she moved in with her father during the summer 2005. Sheffield said that she went to SAFPF in August 2005. Sheffield testified that, before going to SAFPF, her choice of drugs was A[e]verything.@ Sheffield said that she was using cocaine, methamphetamine, and Ecstasy. Sheffield also said that she had eight or nine positive drug tests before going to SAFPF. Sheffield did not believe that she would be alive if she had not turned herself in and gone to SAFPF.

Christina Moroz, a Taylor County Probation Officer, testified that Sheffield was sent to SAFPF in August 2005 for ongoing substance abuse problems. Sheffield requested to go to SAFPF. Sheffield spent eight months at SAFPF. Sheffield presented evidence that, while she was at SAFPF, she completed various classes, including two parenting classes. She also did some work toward her GED and took classes related to obtaining employment. Sheffield successfully completed the SAFPF program, and she was released from SAFPF on March 20, 2006. When Sheffield left SAFPF, she went to the Oak Tree facility, a halfway house in Abilene, for a ninety-day program. Officer Moroz referred to the facility as a Serenity House and a treatment center. Sheffield was discharged from Oak Tree about a week after she arrived for violating its no alcohol policy. Officer Moroz testified that Sheffield admitted to drinking alcohol at Oak Tree and that Sheffield knew what she did was wrong. Officer Moroz said that, because of Sheffield=s discharge from the Oak Tree facility, the Taylor County District Attorney had recommended filing a motion to revoke Sheffield=s probation. Officer Moroz also said that the district attorney had recommended revoking Sheffield=s probation and sending her to prison.

Sheffield moved back in with her father, Mike Sheffield, after leaving the Oak Tree facility. Mike Sheffield=s fiancée, Amy Fincher, and three of Fincher=s children also lived at the house. Sheffield said that she planned to live at her father=s house until she had the resources to get a place of her own. Sheffield=s father testified that Sheffield, D.S., and J.J. would be welcome to live with him for as long as needed. Sheffield=s father believed that his house would provide a stable and safe place for D.S. and J.J. to live. He said that he and Fincher would take care of D.S. and J.J. until Sheffield could take care of them. Sheffield=s father testified that Sheffield had straightened up and that he believed she would be able to stay off of drugs. Sheffield believed that she was a drug addict before going to SAFPF. She testified that she had not used any illegal drugs since leaving SAFPF.

Sheffield said that she was concerned her probation would be revoked as a result of her discharge from the Oak Tree facility. She understood that she was facing the possibility of being sent to prison to complete her sentence. The trial took place on April 25, 2006, and on May 8, 2006. Sheffield was arrested on April 28, 2006, on a motion to revoke her probation and was in jail on May 8, 2006. As of May 8, 2006, Sheffield had not seen D.S. and J.J. since before going to SAFPF in August 2005. Sheffield did not ask for custody of D.S. and J.J. at trial. She knew that she was unable to take care of D.S. and J.J. at that time. She requested time to prove that she could take care of her children. Sheffield testified that it should only take her six months to demonstrate that she could appropriately care for D.S. and J.J.

Sherry Faulkenberry, a caseworker for the Department, testified that she was the caseworker for D.S. and J.J. Faulkenberry said that the Department=s permanency goal for D.S. and J.J. was for them to be adopted. The Department=s original goal was for family reunification, and the Department crafted a permanency plan B the family service plan B consistent with that goal. Faulkenberry confirmed Sheffield=s testimony that Sheffield complied with some of the requirements in the plan but that Sheffield failed to comply with many aspects of the plan. For example, Faulkenberry said that Sheffield did not comply with the counseling and therapy aspects of the plan. She said that Sheffield did not attend the parenting classes required by the plan. Faulkenberry also said that, up through March and April 2005, Sheffield attended most of the visits with D.S. and J.J. as set forth in the plan. However, Sheffield later began missing the visits with D.S. and J.J. on a more frequent basis.

Faulkenberry testified about the needs and conditions of D.S. and J.J. Faulkenberry said that D.S. had some behavioral and social problems, but that she was improving. D.S. was receiving speech therapy at the Anson Early Head Start program. Faulkenberry said that J.J. was doing very well. She said that J.J. was receiving massage therapy, auditory therapy, and speech therapy. J.J. was also receiving instruction in sign language so that he would be able to communicate.

Faulkenberry testified that all of D.S.=s and J.J.=s needs were being met at the time of trial. She believed that D.S. and J.J. needed to continue receiving the services that the Department was providing. Faulkenberry said that the Department had the resources necessary to provide for their future needs. She said that the foster parents were willing to keep D.S. and J.J. in their home until the Department was able to find an adoptive placement for them and that the foster home provided them with a stable environment. Faulkenberry testified that there was no reason to believe that D.S. and J.J. would not be successfully adopted and that there should be no difficulty in locating an adoptive home for the children together. She said that Sheffield had not demonstrated an ability to take care of D.S. and J.J. and that, over the last eighteen months, Sheffield had failed to maintain significant and regular contact with the children.

Applying the above sufficiency standards, the evidence in this case, which we have set forth in detail above, was legally and factually sufficient to support the trial court=s finding that Sheffield engaged in conduct that endangered the physical or emotional well-being of D.S. and J.J. The evidence established that Sheffield had a long history of drug abuse. She started using illegal drugs at the age of fifteen, and she routinely used drugs until she reached the age of twenty-two. She was convicted of robbery after D.S. was born. Sheffield used drugs during her pregnancy with J.J. J.J. suffered actual injury as a result of Sheffield=s conduct. J.J. was born with cocaine in his system and with congenital syphilis. He has a profound hearing loss and severe development delay. Sheffield=s drug addiction, including her use of cocaine while she was pregnant with J.J., constitutes conduct that endangered the physical and emotional well-being of D.S. and J.J. See In re W.A.B., 979 S.W.2d at 806; Dupree, 907 S.W.2d at 84. The evidence established that Sheffield Aslid back into [her] addiction@ after agreeing to the family service plan. A parent=s engagement in illegal drug activity after agreeing not to do so in a service plan for reunification with her children is sufficient to establish clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered the well-being of her children. In re T.N., B.N., & K.N., 180 S.W.3d at 383. The record also demonstrates that Sheffield engaged in a course of conduct that endangered the physical and emotional well-being of D.S. and J.J. Her criminal history, use of illegal drugs while on probation, lack of contact with D.S. and J.J., inability to secure stable employment, and subjecting D.S. and J.J. to lives of uncertainty and instability constitute grounds for termination under Section 161.001(1)(E). See In re W.A.B., 979 S.W.2d at 807.

We overrule Sheffield=s first appellate issue. Because we have concluded that there was both legally and factually sufficient evidence to support the trial court=s finding under Section 161.001(1)(E), we need not address Sheffield=s second and third issues regarding sufficiency of the evidence to support the trial court=s findings under Section 161.001(1)(N), (O). Only one finding alleged under Section 161.001(1) is necessary for a judgment of termination. In re D.M., B.W., & J.C.W., 58 S.W.3d 801; In re S.F., 32 S.W.3d 318, 320 (Tex. App.CSan Antonio 2000, no pet.); see also Tex. R. App. P. 47.1.

Is Termination in D.S.=s and J.J.=s Best Interest?

Sheffield argues in her fourth issue that the evidence was legally and factually insufficient to support the trial court=s finding that termination of her parental rights was in D.S.=s and J.J.=s best interest. In deciding whether the evidence is sufficient to support a trial court=s finding that termination is in the children=s best interest, we are guided by the nonexclusive list of factors set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors include: (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to the children now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the children; (6) the plans for the children by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id.; In re C.A.J., 122 S.W.3d 888, 892-93 (Tex. App.CFort Worth 2003, no pet). These factors are not exhaustive, nor must all of the factors be proved as a condition precedent to parental termination. See In re C.H., 89 S.W.3d at 27; Vasquez v. Tex. Dep=t of Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex. App.CHouston [1st Dist.] 2005, pet. denied). The absence of evidence of some of these considerations would not preclude a fact-finder from reasonably forming a strong conviction or belief that termination was in the children=s best interest, particularly if the evidence was undisputed that the parental relationship endangered the safety of the children. See In re C.H., 89 S.W.3d at 27.

The Department relies, in part, on Sheffield=s long history of drug use, criminal conduct, and instability as evidence supporting the trial court=s best-interest finding. Evidence of a parent=s continuous and long-term drug use, unstable lifestyle, and criminal record will support a trial court=s finding that termination of the parent-child relationship is in the best interest of the child. In re C.A.J., 122 S.W.3d at 894. The evidence at trial established Sheffield=s continuous and long-term drug use. Sheffield used cocaine during her pregnancy with J.J. Although Sheffield said that she stopped using drugs after the Department removed her children from her, she Aslid back into [her] addiction@ shortly thereafter. Sheffield said that she received inpatient drug treatment for her drug addiction at the Jubilee House toward the end of 2004 and into 2005 but that she did not successfully complete the program. She said that she began using drugs again.

The evidence demonstrated that Sheffield has not been able to provide for D.S.=s and J.J.=s emotional and physical needs. Sheffield has not maintained steady employment. She did not have any sources of income at the time of trial. Sheffield=s continued drug use after undergoing treatment at the Jubilee House and after entering into the family service plan demonstrated an inability to provide a stable environment for D.S. and J.J. and an inability to provide for their emotional and physical needs. AWithout stability, income, or a home, [a parent] is unable to provide for the child=s emotional and physical needs.@ In re C.A.J., 122 S.W.3d at 894. Additionally, at the time of trial, Sheffield was in jail and faced the possibility of prison time as a result of her 2003 robbery conviction. Based on the evidence, the trial court could have concluded that Sheffield could not appropriately care for D.S.=s and J.J.=s physical and emotional well-being in the future. The evidence also showed that Sheffield did not have the parental ability to properly care for D.S. and J.J. Sheffield admitted that she did not have the ability to take care of them at the time of trial.

Faulkenberry testified that the foster parents were willing to keep D.S. and J.J. in their home until the Department was able to find an adoptive placement for them. She said that the foster placement provided the children with a stable environment. Faulkenberry also said that D.S.=s and J.J.=s needs were being met at the time of trial and that the Department had the resources necessary to provide for their future needs. Based on the evidence, the trial court could have concluded that the Department had provided, and could in the future provide, D.S. and J.J with a stable home environment.

In light of the Holley factors, we find that the evidence was legally and factually sufficient to support the trial court=s finding that termination of Sheffield=s rights was in the best interest of D.S. and J.J. We overrule Sheffield=s fourth issue.

This Court=s Ruling

We affirm the order of the trial court.

TERRY McCALL

JUSTICE

January 25, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Sheffield provided names of potential fathers of the children to the Department. At the time of trial, paternity testing had ruled out two men as being the father of D.S. and one man as being the father of J.J. Thus, the fathers of the children are unknown. The trial court terminated the parental rights of the unknown father of D.S. and the parental rights of the unknown father of J.J. There are no appeals from these terminations.