Opinion
NO. 02-15-00350-CV
03-31-2016
IN THE INTEREST OF D.S. AND J.S., MINOR CHILDREN
FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
TRIAL COURT NO. 12374-JR-F MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
The trial court terminated Appellant Mother's parental rights to her two sons, D.S. and J.S. In two issues, Appellant contends that the evidence is legally and factually insufficient to support the trial court's finding that the termination was in the children's best interest. We affirm.
I. Background
After a bench trial, the trial court found three separate grounds against Appellant—grounds (N) (constructive abandonment of the children), (O) (failure to comply with the court-ordered service plan), and (P) (use of a controlled substance in a manner endangering the lives of her children) under section 161.001(b)(1)—and that termination was in the best interest of the children under section 161.001(b)(2) of the Texas Family Code. See Tex. Fam. Code Ann. §§ 161.001(b)(1)(N), (O), (P), 161.001(b)(2) (West Supp. 2015). On appeal, Appellant attacks only the legal and factual sufficiency of the best interest findings.
Formerly Tex. Fam. Code Ann. §§ 161.001(1)(N) (O), (P), 161.001(2). See Act of Mar. 19, 2015, 84th Leg., R.S., ch. 1, § 1.078, sec. 161.001, 2015 Tex. Sess. Law Serv. 1, 18-19 (West) (codified at Tex. Fam. Code Ann. §§ 161.001(b)(1)(N), (O), (P), 161.001(b)(2)).
II. Evidence
Mother failed to appear for trial. Because Mother filed an answer, the Department still had to prove its case. In re E.A.W.S., No. 02-06-00031-CV, 2006 WL 3525367, at *15 (Tex. App.—Fort Worth Dec. 7, 2006, pet. denied) (mem. op., not designated for publication).
A. The Investigator
Crystal Wright was an investigator for the Texas Department of Family and Protective Services (the Department). She investigated a report that Mother and her boyfriend (R.L.) were smoking methamphetamine, that their house was dirty, and that R.L. was using inappropriate or excessive discipline on the two children, D.S. and J.S. Wright initially went to the children's school to speak with them. Both boys said that they had witnessed domestic violence between Mother and R.L., both asserted that R.L. would punch or slap Mother, and both related that Mother and R.L. argued all the time. One said R.L. dragged and choked Mother. One of the children said the house was dirty. Both said R.L. spanked them. One of the boys related how R.L. had banged his head when throwing him on a bed, but the two could not agree about whether R.L. was just playing or being mean at the time. Both indicated they were afraid of R.L. Both said they had seen Mother and R.L. use illegal substances, which one of them referred to as "greens" and the other referred to as "dope."
Wright then spoke with R.L., and R.L. denied the allegations of domestic violence, disciplining the children, and drug usage. Wright spoke with Mother as well, and Mother, like R.L., denied all of the allegations. Mother acknowledged, however, that while they were in Oklahoma, they would use a switch on the children but denied that R.L. physically disciplined them. Wright asked both R.L. and Mother to take a drug test by 5:00 p.m. the next day, but neither of them did. Mother and R.L. agreed not to use physical discipline on the children while the investigation was open.
The next week, Wright asked Mother and R.L. again to submit to a drug screen. Mother tested positive for marijuana. R.L. did not go to the test. Wright tried again four or five days later, and R.L.'s drug screen came back negative.
Wright testified that she spoke to Mother about using marijuana while caring for children, and Mother agreed to stop using. To ensure that Mother was drug-free, Wright explained to her that she would have to be tested regularly. Thereafter, however, Mother repeatedly avoided Wright's attempts to have her tested.
On Saturday, May 10, 2014, law enforcement went to Mother's home because she was in the front yard bleeding. Mother was uncooperative, but the police took her to an emergency room where she received medical treatment. Mother's father agreed to take the children until the following Monday.
On the following Monday, Wright spoke to Mother, and Mother admitted using cocaine and marijuana after the children were removed. Mother also acknowledged to Wright that on May 10, 2014, she and R.L. were arguing and that R.L. had locked her out of the house. Mother explained to Wright that she broke a window beside the door so she could get inside and that was why she was bleeding. The children were home when the incident occurred and saw what happened. R.L. told Wright the same story—that they were arguing, that he locked her out, and that she broke the window. Wright testified, "[T]hey pretty much minimized what happened." Wright reviewed the police report regarding the domestic violence and saw stitches in Mother's arm.
Wright also discovered that Mother's father had returned the children on Sunday after keeping them for one night. He was supposed to keep the children until Monday to give Wright a chance to speak to everyone. Instead, Wright found the children with Mother on Monday.
Wright testified that it was important to remove the children from Mother's home for their safety because of the domestic violence and drug use in the home. Wright asserted that Mother was not able to properly supervise the children while using drugs and was concerned that the children could get hurt during the domestic violence. Despite Wright's concerns, when she suggested moving the children out of Mother's home, Mother responded that a removal was not necessary.
Wright testified that the Department was not willing to place the children with Mother's father again because he did not follow through with the initial plan to keep the children. Wright added that Mother's father was homeless. Finally, Wright acknowledged that both of Mother's parents had a CPS history. Ultimately the Department decided to remove the children based upon abuse or neglect.
Mother told Wright that the children's father was not involved with them and that she had no contact with him. Wright thought their father might be in prison.
B. The caseworker
Kristi Roe was the Department's caseworker for D.S. and J.S. Roe was present at the May 19, 2014 adversarial hearing at which the Department was named temporary managing conservator of both children and after which Mother was ordered to pay in-kind child support. Roe testified that in the last seventeen months, Mother had not provided any in-kind child support.
Mother was ordered to undergo a psychological evaluation. Roe scheduled a psychological evaluation twice, and Mother failed to appear each time. The trial court ordered Mother to attend counseling until she was released, but Mother did not complete that either.
Roe explained that the First Step Staircase Program was designed to address domestic violence. Mother acknowledged having a history as a victim of domestic violence. The trial court ordered Mother to attend the First Step Staircase Program, but Mother disregarded the order.
The trial court ordered Mother to successfully complete parenting classes. Roe testified that Mother never attended any parenting classes.
Mother successfully attended a drug and alcohol dependency assessment as ordered but did not follow the recommendation of the assessment to participate in inpatient drug treatment. On July 3, 2014, the Department transported Mother to Serenity House, but she left within hours and later admitted being high on methamphetamine, coming down, and not wanting to stay. Mother entered Nexus on September 2, 2014, stayed for four days, and then left. Roe requested a drug screen on October 24, 2014, and Mother admitted she had been using methamphetamine, had been up for days, and had used drugs that day.
Mother entered Nexus again on November 3, 2014, and graduated on November 26, 2014, but thereafter, she failed to follow her aftercare program. Roe testified that the outpatient programs she failed to attend were court-ordered. Mother was supposed to obtain an AA or an NA sponsor and attend ninety meetings in ninety days. Mother reported having a sponsor and attending meetings, but she never provided Roe any documentation. Mother was also supposed to attend meetings at Serenity House, but Roe asserted Mother had not attended those either. Mother was supposed to not use illegal drugs, but she had not remained drug-free. Roe requested a drug screen again on February 20, 2015, and Mother submitted to the urinalysis but refused the hair follicle test. Mother asserted the results would be negative, but they were positive. The next drug screen was on March 2, 2015, and Mother tested positive for methamphetamine, amphetamine, and marijuana. Roe requested that Mother submit to a drug screen on April 22, 2015, but Mother refused, so the results—pursuant to court orders—were deemed positive. Roe transported Mother to the next drug screen on May 1, 2015, and on the way to the lab, Mother admitted she would test positive for methamphetamine. Roe transported Mother to the lab on July 28, 2015, for a drug screen, and Mother asserted she would test positive only for marijuana because she stopped using methamphetamine on July 18, 2015. On September 15, 2015, Mother tested positive for marijuana and was disappointed that the levels were not lower because she was trying to quit. The last drug screen Roe requested was on October 20, 2015, and Mother refused to take it. Although Mother had graduated from Nexus in November 2014, she was testing positive for illegal substances afterwards.
Mother still had a drug problem at the time of trial. Mother mentioned getting additional treatment and trying to quit using marijuana, but nothing changed. When Roe asked Mother how long the children should wait for her to get over her drug habit, Mother had no answer. Roe explained that drugs were a problem because they altered a parent's mind, mood, and judgment, and they made supervising children properly very difficult. Mother would also be spending her money on illegal drugs. If drug dealers came into the home, the dealers could have extensive criminal histories about which Mother would know nothing.
Additionally, Mother did not comply with other court orders. Mother did not provide two years of income tax returns and financial statements as ordered. Mother was also ordered to provide, within three days of moving, a current residence and phone number where she could be contacted. Mother moved several times during the case but did not comply with this order. But Mother did complete medical history forms for both children as ordered.
Because the children were initially placed in a home in Lancaster, visitation was scheduled twice a month, and the Department transported Mother to see the children. When the children were moved to Wichita Falls at the end of April 2015, visitations were changed to once a week for an hour. Mother did not make every visitation. When Mother could not make a visit, she was supposed to notify the Department twenty-four hours in advance. Mother did that once, but on other occasions, she did not, and the Department was not able to locate her. At the time of trial, Mother had missed the previous seven visitations.
Mother was ordered to obtain and maintain a legal source of income. Mother did not do that. Mother worked at Denny's from approximately June 6, 2014, until July 3, 2014, when Mother left to go to Serenity House. After that, Mother was not employed again until April 2015 when she reported that she was working in housekeeping at the Wayfarer Inn. Mother said she was planning on moving and working at the front desk at the Econo Lodge, but when Roe called the Econo Lodge to verify Mother's employment, it denied ever hearing of Mother. Mother then told Roe that she was working at the Wayfarer Inn again, but when Roe called the Wayfarer Inn to verify, she learned that Mother had just started working there and had not worked there previously. In late August 2015, Mother got a job at Sonic, but Mother lost that job. Mother failed to provide a current budget and proof of income as ordered. Roe noted that although public assistance helped, it could not provide for everything children needed.
The trial court ordered Mother to obtain and maintain a safe and stable home environment. Roe testified that Mother failed. Roe knew of at least five addresses Mother used during the case, but Roe added that there were a few months when she was not able to locate Mother. Roe did not consider Mother's current home a safe and stable environment. At the time of trial, Mother was living with her boyfriend, F.H., who was recently released from prison and who had a history of domestic violence. The two of them were residing at the Wayfarer Inn. When the Department drug tested F.H., he tested positive. When Roe discussed her concerns about F.H. with Mother, Mother indicated that she had no concerns about him. Roe thought both F.H. and Mother were on the lease, and if the children were returned to Mother, the children would be going into a home with F.H., with whom they had no relationship. Mother was ordered to avoid people involved in criminal activity. Mother's relationship with F.H., who used drugs and was on parole, violated that provision.
Roe did not think the home Mother had with R.L. was a safe and stable environment either. Roe noted their use of illegal drugs and domestic violence issues.
Mother was ordered to avoid all criminal activity. Mother failed. She was arrested on October 10, 2014, for possession of marijuana of less than two ounces in a drug-free zone. Mother continued to use drugs herself, as evidenced by her repeated failed drug tests.
Roe said Mother felt that her children should be returned to her. Mother did not think she had done anything wrong.
Mother told Roe that the children's Father did not have much involvement with the children over the years because he had been incarcerated. The Department was not considering placing the children with him because he failed to maintain contact with the Department, he was unemployed, he admitted smoking marijuana, and he did not appear to have a relationship with the children. However, Roe spoke with the children's Father's sister, and she spoke with another relative—the children's paternal great aunt—and the Department placed the children with that relative.
At the time of trial, D.S. was eight. He was struggling in school. He did not have any special needs. When he first came into foster care, he was physically aggressive and defiant, but, other than spats with his brother, at the time of trial the Department had no concerns regarding his behavior. D.S. was taking Seroquel and Clonidine for a mood disorder, Remeron to help him sleep, and Focalin XR for ADHD.
J.S. was seven at the time of trial. He had no special needs. A few months after he came into foster care, he started talking about killing and stabbing people and showed some physical aggression. When his great aunt caught him with a snow cone in his bedroom, J.S. commented that he wanted to kill her. There was also an incident at his great aunt's where he defecated on the floor and smeared the feces on the wall. J.S. took Seroquel, Clonidine, and Focalin XR for the same reasons D.S. did, and J.S. additionally took Prozac for depression.
When the children first came into care, they received counseling to address the separation from their mother, to help them adjust to foster care, and to address any issues associated with witnessing domestic violence. Their counseling was still in progress at the time of trial.
The great aunt was participating in a program called Fostering Connection through the Department. The program allowed relatives or fictive kin to become licensed foster parents, enabling them to get a monetary subsidy for the children if they obtained managing conservatorship of the children. If the great aunt adopted the children, she would become eligible for an adoption subsidy, which Roe said came generally from Medicaid. Roe said that the children would also become eligible for free state-paid college tuition.
Overall, the great aunt was doing well. She had received some training and had taken some classes and seemed to do a good job handling the children's behaviors. Roe said the children seemed bonded to the great aunt. Roe had visited the children and the great aunt in their home and had no concerns.
Roe said Mother had not shown the willingness or ability to bring about positive environmental changes for the children. Mother had not shown herself to possess adequate parenting skills. She had not shown that she was capable of providing the children with a safe home environment over the seventeen months the case had been pending. Mother had not shown the ability to protect the children from repeated exposure to violence. Mother did not appear to understand that violence could be dangerous even if it was not directed at the children. Mother had not shown an understanding of the children's needs. Mother did not have an adequate support system. Roe thought Mother's continued use of drugs led to an unstable home environment. Roe thought termination of Mother's parental rights was in the children's best interest.
Roe acknowledged that until the last seven weeks, Mother made a majority of her visits with the children. She agreed that the visits went very well and that Mother was always appropriate with the children. Roe agreed that it was evident from the visits that Mother had a bond with the children. The children enjoyed the visits and wanted to see Mother. Roe said, however, that the boys were apprehensive about whether she would show up. Roe asserted that the decision about whether to terminate was a big one and should not be left to the children.
The Department's permanency recommendation was to have the great aunt adopt the children. To accomplish that, the Department was seeking the termination of Mother's and Father's parental rights. Regarding terminating Mother's parental rights, Roe said,
[Mother] continues to use illegal drugs. She has not cooperated with services through the Department. She does not appear to have changed her lifestyle from when the children were removed. And [Mother] continues to be—or has demonstrated an inconsistency in visiting with the children.Mother's inconsistent visitation with the children affected them. Roe testified,
It affects children emotionally and mentally when they don't see their parent consistently showing up for visitation. As I testified to earlier, she's missed the last seven weeks of visitation, and in the last three or four weeks [J.S.] has started to have some pretty significant behavioral issues, which included him being suspended from school on Monday.Roe explained that if Mother's parental rights were not terminated, Mother would continue to have standing to return to court and litigate such issues as visitation and managing conservatorship. Termination would allow finality. The great aunt would not have to worry about being challenged legally by Mother and Father.
C. The CASA worker
Kristy Ponce, the CASA worker for the children, recommended termination. As recently as August 28, 2015, however, that had not been her recommendation. Ponce explained that the visits with the boys were very good. Mother was very appropriate, very loving, and very bonded to the children. The boys were emotional when the visits with Mother came to an end.
The final trial was held on October 29, 2015. --------
It was not until Ponce met with Mother at her home that Ponce decided that termination would be in the children's best interest. Ponce did not think that Mother had realistic expectations for her future. Mother still had drug issues and had made little progress with her service plan. After meeting F.H., Ponce did not think he would make an appropriate father figure for the boys. Ponce said the boys wanted to continue to see Mother, but they acted out when Mother did not show up for visits and were disappointed. Ponce said the boys needed a healthy and good relationship, and Mother was not capable of providing them with one. Ponce testified that Mother had seventeen months to create a healthy relationship and that the boys did not need to continue to wait. In Ponce's opinion, good visits were not the same thing as good relationships.
III. Issues
In two issues, Mother contends the evidence is legally and factually insufficient to support the finding that termination was in the children's best interest. Mother focuses on the children's expressed love for her and their desire to continue their visits with her. She also questions the various subsidies and benefits, such as college tuition, available to her children provided her parental rights were terminated. She contends that the various subsidies and benefits incentivize termination, which is inconsistent with the stated policy of keeping families together.
A. Standard of Review
In a termination case, the State seeks not just to limit parental rights but to erase them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child's right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, "[w]hen the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures." In re E.R., 385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92 (1982)). We strictly scrutinize termination proceedings and strictly construe involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554-55; Holick, 685 S.W.2d at 20-21.
Termination decisions must be supported by clear and convincing evidence. See Tex. Fam. Code Ann. § 161.001(b) (West Supp. 2015), § 161.206(a) (West 2014); E.N.C., 384 S.W.3d at 802. "[C]onjecture is not enough." E.N.C., 384 S.W.3d at 810. Due process demands this heightened standard because "[a] parental rights termination proceeding encumbers a value 'far more precious than any property right.'" E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758-59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it "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 (West 2014); E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent-child relationship, the party seeking termination must establish by clear and convincing evidence that the parent's actions satisfy one ground listed in family code section 161.001(b)(1) and that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be established; termination may not be based solely on the best interest of the child as determined by the trier of fact. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).
B. Factual Sufficiency
If the evidence is factually sufficient, then it is necessarily legally sufficient as well. See M.V.G., 440 S.W.3d 54, 60 (Tex. App.—Waco 2010, no pet); In re J.E.H., No. 02-07-00137-CV, 2008 WL 467332, at *4 (Tex. App.—Fort Worth Feb. 21, 2008, no pet.) (mem. op., not designated for publication); In re D.S.A., 113 S.W.3d 567, 569 (Tex. App.—Amarillo 2003, no pet.). Therefore, although Mother's issues encompass both the legal and factual sufficiency of the evidence, we will address her factual sufficiency challenge first. If factually sufficient evidence supports the trial court's finding of best interest, then the evidence is necessarily legally sufficient to support it.
We are required to perform "an exacting review of the entire record" in determining whether the evidence is factually sufficient to support the termination of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence for factual sufficiency, we give due deference to the factfinder's findings and do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record, a factfinder could reasonably form a firm conviction or belief that the parent violated a ground under section 161.001(b)(1) and that the termination of the parent-child relationship would be in the best interest of the child under section 161.001(b)(2). Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (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 in the truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108. The inquiry to be made in a factual sufficiency review is whether all of the evidence, when viewed in a neutral light, is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the allegations. In re X.R.L., 461 S.W.3d 633, 639 (Tex. App.—Texarkana 2015, no pet.); In re A.B., 412 S.W.3d 588, 607 (Tex. App.—Fort Worth 2013) (op. on reh'g), aff'd, 437 S.W.3d 498 (Tex. 2014).
If we reverse on factual sufficiency grounds, then we must detail in our opinion why we have concluded that a reasonable factfinder could not have credited disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266-67. While we are encouraged to detail the evidence when we affirm, we are not required to do so. A.B., 437 S.W.3d at 507; In re D.A., No. 02-14-00076-CV, 2014 WL 3778234, at *20 (Tex. App.—Fort Worth July 31, 2014, no pet.) (mem. op.) (noting that we are not required to detail all the evidence when affirming on factual sufficiency grounds). We must, however, still state the "basic reasons" for our decision. See Tex. R. App. P. 47.1, 47.4; Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681-82 (Tex. 2006).
C. Best Interest
There is a strong presumption that keeping a child with a parent is in the child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
We review the entire record to determine the child's best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative of both the subsection (1) ground and best interest. Id. at 249; C.H., 89 S.W.3d at 28. Nonexclusive factors that the trier of fact in a termination case may also use in determining the best interest of the child include
(A) the desires of the child;Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest finding, "we consider, among other evidence, the Holley factors"); E.N.C., 384 S.W.3d at 807 (same). These factors are not exhaustive, and some listed factors may be inapplicable to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. Id. On the other hand, the presence of scant evidence relevant to each factor will not support such a finding. Id. That is, "[a] lack of evidence does not constitute clear and convincing evidence." E.N.C., 384 S.W.3d at 808.
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Although the children's love of their parents is a very important consideration in determining the best interest of the children, it can neither override or outweigh evidence of danger to the children nor "compensate for the lack of an opportunity to grow up in a normal and safe way equipped to live a normal, productive, and satisfying life." In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.). Part of the dynamic in this case was that the children wanted to see Mother, but Mother stopped coming to visits. Her failure to visit the children was destabilizing their lives, as evidenced by their acting out. This was not a situation where the children could anticipate regular, nurturing visits from their Mother if her rights were not terminated. Whereas in most cases a strong bond between a Mother and her children would weigh against termination, in this case Mother's failure to maintain and nurture that bond was harming the children. Neglecting the bond with her children weighs in favor of termination.
Permanence and stability are paramount in the upbringing of children. In re D.M., 452 S.W.3d 462, 472 (Tex. App.—San Antonio 2014, no pet.); In re J.D., 436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). During the seventeen months the case was pending, Mother had at least five different residences. Mother had two different boyfriends with whom there were concerns of domestic violence and drug use. Mother used various drugs throughout the case and could not keep a job. There was testimony that drugs impaired a person's ability to parent, and there was testimony that the persons selling drugs to Mother could be dangerous. In short, Mother could not provide any semblance of permanence or stability to the children's lives, and she was exposing the children to persons whose mental faculties and judgments were impaired by drugs, to persons who either engaged in domestic violence or had a history of domestic violence, and to drug dealers. Mother had not shown herself capable of meeting the children's emotional and physical needs and was, by the very nature of her lifestyle, exposing her children to emotional and physical danger. Mother never attended any parenting classes. In contrast, the children's great aunt, with whom they were placed, had received some training and had taken some classes to become a foster parent and seemed to do a good job handling the children's behaviors. All of these factors weigh in favor of termination.
If Mother's parental rights were terminated, the children were eligible for subsidies and free college tuition. Mother complains that these acted as inducements encouraging termination. But the Department offered Mother a number of services to help improve her own life and the lives of her children, and she chose not to avail herself of those services for the most part. Additionally, there was no evidence Mother availed herself of other available public assistance resources, such as Medicaid or welfare assistance.
We agree that the subsidies and free college available in the event of termination acted to make termination more likely. If, however, Mother had shown the ability to provide the children with a safe and stable environment, these benefits would not have acted as inducements. Poverty is not a basis for termination. See In re D.R., No. 02-06-00146-CV, 2007 WL 174351, at *6 (Tex. App.—Fort Worth Jan. 25, 2007, no pet.) (mem. op., not designated for publication). On the other hand, a parent's failure to provide a stable home and otherwise provide for the children's needs may contribute to a finding that termination is appropriate. See Doyle v. Tex. Dep't of Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet. denied); Ziegler v. Tarrant Cty. Child Welfare Unit, 680 S.W.2d 674, 678-79 (Tex. App.—Fort Worth 1984, writ ref'd n.r.e.) (holding that repeated and severe abuse of one child by both of mother's husbands, coupled with propensity for dependency on men she knew to be wife and child abusers, supported termination of mother's rights to all of her children). The benefits at issue here are not intended as inducements to terminate but are assurances of stability in the event of termination. In Mother's case, she is correct to conclude that the subsidies and free college tuition weighed in favor of termination.
After seventeen months, Mother was essentially in the same position that she was in when the case started. She was using drugs, and she was with a boyfriend with whom there were concerns about domestic violence. There is no evidence of any reasonable excuse for her actions.
Based on the entire record, we hold a factfinder could reasonably form a firm conviction or belief that the termination of the parent-child relationship would be in the best interest of the children. See C.H., 89 S.W.3d at 28. Because we hold that the evidence was factually sufficient, the evidence was necessarily legally sufficient. See M.V.G., 440 S.W.3d at 60. We overrule Mother's first and second issues.
IV. Conclusion
Having overruled each of Mother's issues, we affirm the trial court's judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE PANEL: LIVINGSTON, C.J.; GARDNER and SUDDERTH, JJ. DELIVERED: March 31, 2016