In the Interest of J. L.H. and E.L.H., children Appeal from 314th District Court of Harris County (memorandum opinion)

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Opinion issued January 30, 2018 In The Court of Appeals For The First District of Texas ———————————— NO. 01-17-00729-CV ——————————— IN THE INTEREST OF J.L.H. AND E.L.H., CHILDREN On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2016-04492J MEMORANDUM OPINION This is an appeal from the trial court’s order terminating the parental rights of a mother to her children. On appeal, the mother contends that the evidence is factually insufficient to support the termination. She also contends that the evidence is legally and factually insufficient to support the trial court’s grant of sole managing conservatorship to the Department of Family and Protective Services. We affirm. BACKGROUND The mother has a history with family-based services that spans more than a decade. In June 2016, the Department received allegations that she was using drugs in the presence of her daughters, who were then 13 and 6 years of age. She also had removed the children from their school and was hiding them from Child Protective Services. After investigating the allegations, the Department sought appointment as emergency temporary managing conservator of the children on the basis of their alleged father’s untreated mental illness, family violence between the father and mother, and the father’s and mother’s failure to take a drug test. After a subsequent adversary hearing, at which the mother was represented by counsel but did not personally attend, the trial court made the Department the children’s temporary managing conservator. In October 2016, the trial court approved the father’s and mother’s familyservice plans, which were intended to facilitate the eventual return of the children to their parents. As neither one had begun addressing the issues that brought the children into the Department’s care, the trial court also ordered that the parents participate in the services enumerated in their plans, appear in court, and take a drug test before scheduling visitation. 2 In January 2017, the trial court held a hearing. The court found that the mother had not complied with her service plan. The trial court held a second hearing in April 2017. Once again, the court found that she had not complied with her service plan. In August 2017, the Department’s request to terminate parental rights was tried to the bench. The mother testified. The Department presented three witnesses: Christina Lewis, the investigative caseworker assigned to the case; Victoria Palmer, the current case worker assigned to the children; and Lori Miller, a volunteer with Child Advocates. Lewis investigated the June 2016 allegations of neglectful supervision. She spoke with the mother, the alleged father, and the maternal grandmother. Lewis learned that the father was bipolar but was neither on medication nor under a doctor’s care. The father admitted to family violence in the home that he shared with the mother. The grandmother told Lewis that the mother and father gave the youngest girl cigarettes. The child denied to the caseworker that this had occurred. After Lewis began her investigation, the mother fled with the children. The Department eventually located the children and obtained temporary managing conservatorship of them. Palmer testified that the Department had placed the children, who were 14 and 7 at the time of trial, in a foster home that could lead to adoption. The home was 3 stable and both girls were doing well there. The older daughter had a close bond with her foster mother and trusted her. Before coming into foster care, the older daughter had parented her younger sister to an extent, but now had the opportunity to just be a kid. The younger child had come into foster care malnourished and infested with lice but had since gained weight and no longer had lice. Neither child had been attending school when they came into foster care but they began attending school while in foster care. In contrast, Palmer testified that the home that the mother shared with the children’s alleged father was not stable due to the mother and father’s history of domestic violence. According to Palmer, the mother said that she did not want to bring her girls into her home. But Palmer agreed that the elder daughter maintained contact with her mother, desired to maintain a relationship with her, and did not want her parental rights terminated. The Department had looked for family members with whom the children could be placed but could not find any appropriate candidates. None had sought custody of the girls, and Palmer said that their mother told her that she would not trust any of her family with them. Palmer testified that the mother failed to submit to drug tests in October 2016 and January 2017, notwithstanding the fact that the court ordered that there would be no visitation until a drug test has been completed. The mother told Palmer that she would not visit her daughters anyway because doing so would be too emotional 4 for her. Palmer requested that the mother take a drug test about 19 times between August 2016 and trial but the mother never did so. Nor did the mother comply with her family-service plan beyond completing a release of information and refraining from criminal activity. She did not take the required psychosocial assessment, substance abuse assessment, domestic violence class, or parenting class. The Department also introduced exhibits detailing the father’s criminal history. Given the circumstances, Palmer testified that the Department was seeking termination of the mother’s parental rights on the grounds that she had endangered the physical or emotional well-being of the children, or knowingly placed them with persons who did so, and also for failing to complete her court-ordered family-service plan. See TEX. FAM. CODE § 161.001(b)(1)(E), (O). She further testified that doing so would be in the children’s best interest. Miller likewise testified that the termination of the mother’s parental rights would be in the children’s best interest. Their foster home was a safe, stable, and loving environment in which the girls were thriving. Miller visited the father and mother’s home and concluded that it was not a safe environment due to the volatility of their relationship and because two other men—friends of the father’s family— also were living there. The mother asked the court not to terminate her parental rights. She said that she had a stable home, and she denied any history of family violence between her 5 and the alleged father. She said the girls had been enrolled in school, but that she removed them from school because the family had planned to move out of state. She denied past drug use, and said that she had taken drug tests with her own doctors but that the results had not yet been reported to the Department. The mother conceded that she had taken methadone but explained that she took it to wean herself off of pain medication that she had taken in connection with an earlier injury. She conceded that she had ongoing problems with her physical and mental health. She had an accident just before her youngest daughter was born, had not had a job since, and received disability payments. She also was on medication for severe anxiety. According to the mother, her health issues prevented her from taking the courtordered drug tests and those requested by the Department. She testified, however, that she could complete her family-service plan if given more time. She also introduced a letter from a counselor at Durham Health Services, who stated that the mother had participated in 11 counseling sessions. The caseworker called the therapist and learned that Durham Health Services is a methadone clinic. The trial court terminated the mother’s parental rights on the grounds advocated by the Department. See id. § 161.001(b)(1)(E), (O). It terminated the alleged father’s parental rights because he failed to admit paternity or file a counterclaim for paternity after being served with process. See id. § 161.002(b)(1). 6 Because both the mother’s and the father’s parental rights were terminated, the trial court made the Department the children’s sole managing conservator. DISCUSSION I. Termination of the mother’s parental rights The mother contends that the evidence is factually insufficient to support a finding that the termination of her parental rights is in the children’s best interest. A. Standard of review A parent’s right to the care, custody, and control of her children is a liberty interest protected under the Constitution, and we strictly scrutinize termination proceedings on appeal. Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence must support an involuntary termination. Holick, 685 S.W.2d at 20 (citing Santosky, 455 U.S. at 747, 102 S. Ct. at 1391). 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.” TEX. FAM. CODE § 101.007. When determining legal sufficiency in a parental-rights termination case, we review “all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume 7 that the factfinder resolved disputed facts in favor of the judgment if a reasonable factfinder could have done so. Id. We disregard “evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” Id. If a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true after conducting its legal-sufficiency review, the court must conclude that the evidence is legally insufficient. Id. In determining factual sufficiency in a parental-rights termination case, we consider the entire record, including disputed evidence, to determine “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction” about the truth of the allegation sought to be established. Id. at 264, 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” J.F.C., 96 S.W.3d at 266. To prevail in a parental-rights termination case, the Department must establish that one or more of the acts or omissions enumerated under Texas Family Code Section 161.001(b)(1) occurred and that the termination is in the best interest of the children, pursuant to Section 161.001(b)(2). TEX. FAM. CODE § 161.001(b). In this case, the mother concedes that she failed to comply with provisions of a court order that specifically established the actions necessary for her to regain 8 custody of her children and therefore does not dispute that the Department carried its burden under Subsection (b)(1). See id. § 161.001(b)(1)(O). She does, however, challenge the trial court’s determination that termination is in the children’s best interest. In determining whether termination is in children’s best interest, courts are guided by the non-exclusive factors set forth in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). These 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 those seeking custody, (5) the programs available to assist these persons to promote the best interest of the children, (6) the plans for the children by these persons or by the agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Id. at 371–72; see also TEX. FAM. CODE § 263.307 (setting forth factors relevant to determining children’s best interest). The Department need not prove all of the Holley factors as a condition precedent to parental termination. C.H., 89 S.W.3d at 27. Undisputed evidence of a single factor may suffice in a particular case to support a finding that termination is in the best interest of the child, but the presence of scant evidence relevant to each Holley factor will not support such a finding. Id.; Yonko 9 v. Dep’t of Family & Prot. Servs., 196 S.W.3d 236, 243 (Tex. App.—Houston [1st Dist.] 2006, no pet.). B. Whether termination was in the children’s best interest Several Holley factors support the trial court’s determination that termination of the mother’s parental rights was in the children’s best interest. In particular, there was evidence that the mother’s home was unstable and posed an emotional and physical danger to the children. It was undisputed that when the children first came into the Department’s care, the older one effectively acted as a caregiver for her younger sister and the younger one was malnourished and infested with lice. Neither child was in school. In addition, the trial court heard testimony of a history of family violence between the mother and father, including that the father had “beat the hell out of” the mother. Evidence that a parent continues to reside with a violent partner supports a finding that termination in the children’s best interest. See In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (relying in part on “history of assaultive conduct between the mother and father” in affirming decision that termination of father’s rights was in child’s best interest). In speaking to caseworkers, the father admitted hitting the mother, but claimed it was justified because the mother had tried to hit him with a car. While the mother denied family violence, the credibility of the witnesses generally is an issue for the factfinder. See Latham v. Dep’t of Family & Prot. Servs., 177 S.W.3d 341, 349 (Tex. App.— 10 Houston [1st Dist.] 2005, no pet.). Similarly, while the mother denied using drugs, the trial court could reasonably have concluded that her repeated failure to submit to court-ordered drug testing was evidence of drug use, which is proof of endangerment supporting a finding that termination is in the children’s best interest. See In re J.M.T., 519 S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (refusal to provide samples for drug testing permitted court sitting as factfinder “to infer that Father refused testing because it would be positive”); In re D.J.W., 394 S.W.3d 210, 221 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (trial court reasonably could conclude mother was using drugs based on “her failure or refusal to take drug tests”); see also Walker v. Tex. Dep’t of Family & Prot. Servs., 312 S.W.3d 608, 617–19 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (drug use supports finding that termination is in child’s best interest because possibilities of impairment and incarceration flowing from drug use endanger child); Toliver v. Tex. Dep’t of Family & Prot. Servs., 217 S.W.3d 85, 98–102 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (narcotics use in violation of family-service plan will support termination for child endangerment, including finding that termination is in child’s best interest). The record also contained substantial evidence that the instability of the mother’s home and the dangers that it posed to the children were unlikely to be remedied and that her lack of parental ability would continue to endanger the 11 children. The mother fled with the children in an effort to avoid the Department’s investigation, knowing that a report of neglect had been made. Once she was located, a wide variety of family services were made available to the mother with the stated goal of reuniting her with her children, but she failed to avail herself of them despite being ordered to do so. Nearly ten months went by between the court’s approval of the mother’s family-service plan and trial, during which the mother made no meaningful progress. This circumstance also supports the trial court’s termination decision. See J.M.T., 519 S.W.3d at 269–70 (evidence of failure to complete tasks and services required in family-service plans supported best-interest finding); Doe v. Brazoria Cty. Child Prot. Servs., 226 S.W.3d 563, 574–75 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that factfinder could form firm belief or conviction that termination was in children’s best interest based in part on mother’s failure to complete parenting and rehabilitation classes and training); Vasquez v. Tex. Dep’t of Prot. & Reg. Servs., 190 S.W.3d 189, 197–99 (Tex. App.— Houston [1st Dist.] 2005, pet. denied) (affirming trial court’s decision that termination was in children’s best interest based in part on mother’s failure to actively participate in services offered to ensure children’s safety, which constituted evidence of present and future danger she posed to children). The mother admitted that her current residence with the father and two other men was not suitable for the children. 12 In contrast, the children’s foster home is safe, stable, and includes the possibility of adoption. The girls are doing well in foster care. Both are now in school. The older child is no longer burdened with the care of her younger sister, and the younger one is no longer lice-ridden or malnourished. The children’s markedly improved circumstances and the prospect that they will continue to do well in foster care further supports the trial court’s finding that termination of the mother’s rights was in their best interest. See J.M.T., 519 S.W.3d at 270 (placement in safe, stable foster home and that child was doing well there was relevant as to child’s emotional and physical needs and stability of home or proposed placement and therefore supported trial court’s best-interest finding); Rogers v. Dep’t of Family & Prot. Servs., 175 S.W.3d 370, 378 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) (successful foster placement and possibility of adoption by foster parents supported determination that termination of parental rights was in children’s best interest); see also Wyatt v. Dep’t of Fam. & Prot. Servs., 193 S.W.3d 61, 69 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (rejecting argument that children’s best interest would be served by keeping them in foster care indefinitely until reunification could be achieved in lieu of termination because such indefinite placement “fails to recognize the children’s need for stability and permanency”). The mother emphasizes that the evidence established that her eldest daughter desires to continue to have a relationship with her mother and opposes termination 13 of her mother’s parental rights. This evidence was not disputed at trial and is some evidence against termination being in the child’s best interest. But under circumstances in which a parent fails to make any progress toward remedying the problems that brought the children into foster case, a child’s desire for reunification is not alone enough to undermine a trial court’s finding that termination is in the best interests of that child. See Phillips v. Tex. Dep’t of Prot. & Reg. Servs., 25 S.W.3d 348, 355–56 (Tex. App.—Austin 2000, no pet.) (affirming termination despite children’s desire to be reunited with mother given the other evidence in the record). Considering the entire record, we conclude that the trial court could have reasonably formed a firm belief or conviction that the termination of the mother’s parental rights was in the best interest of the children. We therefore hold that the evidence is factually sufficient to support the trial court’s termination decision. See J.F.C., 96 S.W.3d at 264, 266. II. Appointment of Department as sole managing conservator The mother challenges the trial court’s order granting the Department sole managing conservatorship of the children. The evidence supporting termination of her parental rights supports the trial court’s grant of sole managing conservatorship to the Department. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (noting that higher burden of proof exists for termination of parental rights than for conservatorship decisions). We also note that the Department has placed the 14 children in a safe, stable foster placement that could become an adoptive home. Under the Family Code, “the prompt and permanent placement” of the children “in a safe environment is presumed to be” in their best interest. TEX. FAM. CODE § 263.307(a). Thus, we hold the trial court did not abuse its discretion in granting sole managing conservatorship to the Department. See J.A.J., 243 S.W.3d at 616 (conservatorship decisions subject to review for abuse of discretion). CONCLUSION We affirm the judgment of the trial court. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Higley and Bland. 15

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