Summary
discussing evidence admitted into trial included, among other things, positive drug test results for both parents as well as testimony from both parents
Summary of this case from In re C.M.C.Opinion
NO. 01-17-00678-CV
02-22-2018
IN THE INTEREST OF D.S.J., A CHILD
On Appeal from the 313th District Court Harris County, Texas
Trial Court Case No. 2016-03573J
MEMORANDUM OPINION
This appeal arises from a decree terminating the parental rights of a mother and a father to their biological child, D.S.J. The mother argues that the evidence was legally and factually insufficient to support the termination of her parental rights. Separately, the father argues that the evidence was factually insufficient to support the termination of his parental rights, and he additionally asserts that the evidence was legally and factually insufficient to support the appointment of the Department of Family and Protective services as D.S.J.'s sole managing conservator.
Because the evidence was sufficient to support termination of parental rights of both parents, as well as the court's appointment of the Department as D.S.J.'s managing conservator, we affirm.
Background
D.S.J. was born five weeks early. She suffered from breathing problems, and she remained in the hospital's intensive care unit for ten days. At the time of her birth, D.S.J.'s mother and father were defending a suit in Chambers County which sought to terminate their parental rights with respect to another child, D.S.J.'s older sibling R.J. The mother and father both tested positive for drugs while that termination suit was pending, and they failed to complete their family service plans. Because of the pending termination case, upon her discharge from the hospital D.S.J. was immediately placed in a parental child safety placement with her maternal aunt, who also had custody of R.J. at that time. The Department took custody of D.S.J. approximately three weeks later, following allegations of sexual misconduct in the maternal aunt's home. D.S.J. was subsequently placed in a nonrelative foster home.
The Department developed individually-tailored family service plans for D.S.J.'s mother and father. The trial court incorporated the plans by reference in a status-hearing order, making both plans orders of the court. Each plan listed several tasks and services to be completed by the parents in order for reunification with D.S.J. to occur. The plans also included a summary of a referral received by the Department which alleged neglectful supervision of D.S.J. by her mother and father. Each plan stated that it was intended to help the parent provide a safe environment for D.S.J. within a specified time, and that if the parent was unwilling or unable to provide that safe environment, parental and custodial duties and rights could be restricted or terminated, or the child might not be returned to the parent.
The case proceeded to a bench trial. The caseworker for D.S.J.'s case and the caseworker for the Chambers County suit involving R.J. both testified. Both of D.S.J.'s parents and her foster mother testified. The Department offered 19 exhibits which were admitted into evidence. These included, among several other documents, both the mother's and father's family-service plans, a Children's Crisis Care Center Family Evaluation, results of drug tests for each parent, and documentation related to the father's criminal history.
The Department called D.S.J.'s assigned Harris County caseworker as its first witness. The caseworker testified that the father had started his family-service plan, but he had not completed it. He did not follow most of the recommendations of his psychosocial assessment, including parenting classes, a battering intervention and prevention program, couples counseling, and trauma-informed counseling. Drug test results admitted into evidence confirmed that the father had tested positive for methamphetamine twice in the weeks leading up to D.S.J.'s birth. He also tested positive for alcohol, various benzodiazepines, marijuana, marijuana metabolites, amphetamine, and methamphetamine a month after D.S.J. was born. During his psychosocial assessment, the father admitted that he had been drinking excessively and using drugs the month after D.S.J. was born. Random drug testing throughout the case resulted in several positive results. He twice tested positive for cocaine within the six months before trial.
The father had continued regular psychiatric care, and the caseworker believed he was taking his prescribed psychotropic medications. However, she was unsure if he had been prescribed medication for a seizure disorder, and she was concerned because the father had tried to commit suicide several times. She also was concerned about the father's criminal history.
With respect to the mother, the caseworker testified that she had started her family-service plan, but she failed to follow the recommendations of her psychosocial assessment, several of which were services she already had been required to complete under her family-service plan. The mother did not complete domestic violence counseling, couples counseling, parenting classes, or individual therapy. She also failed to maintain stable employment for at least six months. The mother submitted to random drug testing throughout the case, and she did not test positive for any drugs. She had not tested positive for drugs since before D.S.J. was born, but she tested positive for synthetic marijuana three times after she already had become pregnant with the child. The caseworker testified that the mother's responses during her psychosocial assessment indicated that she knew she was pregnant at the time of the positive drug tests. D.S.J. tested positive for barbiturates at birth, and the caseworker confirmed that this was an indication that the mother "definitely" used illegal drugs while pregnant.
Both parents failed to maintain a stable home environment for at least six months. The parents provided the caseworker with proof of housing three months before trial, and the caseworker testified that the father had a stable home environment and stable employment at the time of trial.
The caseworker testified that D.S.J. was well-bonded in her foster home and the foster family was willing to adopt her. The mother and father had missed a number of visits with D.S.J. They visited once, two months after D.S.J. was born, and since then they had made only six two-hour visits. The caseworker explained that although D.S.J. is "severely delayed," neither parent had ever asked the caseworker about the delays, or otherwise discussed them with her.
Based on answers given in their individual psychosocial or psychological assessments, the caseworker testified that neither parent believed that his or her substance abuse had a negative impact on his or her parenting abilities. It was the Department's conclusion that both parents had problems with judgment and with the ability to be protective of their children. The caseworker believed that termination of both parents' parental rights would be in the child's best interest because, while living with her foster parents, D.S.J. was receiving the care necessary to address her developmental delays, and she was not being subjected to other "CPS involvement" or potential drug abuse.
The caseworker for the Chambers County conservatorship case also testified. The mother had a history of using illegal drugs while pregnant, and R.J. was removed from the parents due to "parental drug use and domestic violence issues." The Chambers County caseworker testified that there also was an ongoing investigation in another county related to the mother's three older children. Family-service plans had been ordered for each parent in the Chambers County case, but neither parent had completed his or her plan. The parents' visits with R.J. had not been consistent throughout the case. Based on her observation of one visit, the Chambers County caseworker believed neither the mother nor the father was able to "parent" R.J. The parents had not demonstrated any pattern of stability while the Chambers County case was pending, and the Department's goal in that case was termination of parental rights and adoption. R.J.'s foster home and D.S.J.'s foster home maintained communication with each other, and the two children were able to have "siblings' visits." The Chambers County caseworker testified that she had no reason to believe that this would change in the future.
The Department also called the father to testify. His two children not involved in the pending cases lived with his grandmother, and he did not have any parental or visitation rights to them. He was incarcerated at the time his rights to those children were terminated.
The father admitted that he had been arrested for a drug possession offense less than two months before D.S.J. was born, and that he had gone to jail as a result. He claimed, however, that the drugs belonged to someone else. He also admitted that he previously had been convicted on two separate occasions of assaulting the mother of his other two children, B.C. He stated that those incidents occurred while he was "coming out of a seizure," and he "didn't know what was going on" at the time. He also had been convicted of assaulting B.C.'s friend (by punching him in the face), and he had been convicted twice of assaulting her mother. Although complaints related to the father's assaults of B.C.'s mother indicated he had "[struck] her with his hand," and "[pushed her] with his fist," the father testified that he was arrested for spitting on her.
The father stated that he started using drugs at 13 years old. He admitted that he had used drugs while his children, including D.S.J., were in the Department's care. He did not know why he continued to use drugs when he knew he would have to submit to drug tests in this case and in the Chambers County case. He told his psychological assessor that he used drugs only during "daddy time," while his children were sleeping. The father testified that he and the mother did not use drugs at the same time, so if one of the children needed medical care during "daddy time," the mother would be able to help. The father agreed that his drug use was not safe for his children, however he stated that he was done with drugs. Although he had tested positive for cocaine within the six months preceding trial, he stated that he did not know why the test was positive because he had not used drugs since sometime the year before. He said his children are more important to him than drugs, and he would rather have "family time" than "daddy time."
The father also discussed his mental-health issues. He first attempted suicide as a teenager, and his last attempt was shortly after D.S.J. was born. He agreed that D.S.J.'s mother had saved his life after his last suicide attempt. By the time of trial, he had been seeing a mental-health service provider regularly for approximately 11 months, and his last visit was two days before he testified. The father testified that he took his prescribed medications every day.
In addition to continuing regular psychiatric care, the father stated that he also had started a battering intervention and prevention program, and he would be done by the end of the month. He and the mother stayed in hotels and with friends when the case started, but they had been living in a house for approximately four to five months prior to trial. They "pretty much" had a month-to-month lease, and the father paid the bills every month. He stated that there was no threat of being evicted from that residence. The roof needed to be repaired, but he had repaired other areas of the house, and he continued making repairs to the house. The father further testified that he had been working for ten months as a maintenance supervisor at hotel, and he earned a monthly income of $1,600.
When asked to describe D.S.J.'s developmental needs, the father stated that the child was able to stand up, lift herself up, crawl, and hold a bottle to feed herself. He further testified that he had raised one of his other daughters while she was approximately the same age as D.S.J., and that his other daughter "didn't really do that much either."
D.S.J.'s mother also testified. She had three older daughters who had lived with her mother for approximately three years because she had been unable to care for them. She agreed that she also had been unable to take care of D.S.J. or R.J. However, at the time of trial, the three older daughters were living with her and she was able to take care of and provide for them.
The mother admitted that she continued testing positive for illegal drugs even after she knew she was pregnant with D.S.J. Although the mother acknowledged that her drug use during pregnancy put D.S.J. in danger, she was unable to explain why she had done it. She admitted that she also had used marijuana while pregnant with R.J. During her psychosocial assessment, the mother admitted to using illegal drugs up to seven times a day. She said that she used synthetic marijuana because her friend was making it, and it was free. She admitted that it was a "poor choice," and she asserted that her children were the reason she had not used drugs for approximately 21 months.
The mother admitted that she had not completed her family-service plans for Harris County or for Chambers County. However, at the time of trial, she was actively participating in anger management and parenting classes for the Harris County case. She further testified that she and the father had a stable, safe living environment and she worked part-time at the same hotel where the father worked.
The mother agreed that she had visited D.S.J. for only 12 hours since the child had been released from the hospital, and she explained that she had moved four hours away and lacked transportation. She testified that she did not visit D.S.J. for approximately 10 months after the child was removed from her care, but she explained that she set up a visitation schedule once she had a vehicle. The mother also stated that she would have participated in longer visits with D.S.J. if she had been given the opportunity.
The mother was aware that D.S.J. had developmental delays and that the child needed physical therapy for her legs. She testified that was unaware of the full extent of the delays because, even though she had asked, neither the caseworker nor the foster mother had given her the information. The mother testified that she would be willing to take D.S.J. to a doctor to be evaluated for potential developmental delays.
The mother asked the court to return D.S.J. to her and the father. She stated that she and the father had been drug-free and had a home, jobs, and "pretty much everything" she thought they needed for the child.
D.S.J.'s foster mother was the last to testify. D.S.J. had been in the foster home since she was five weeks old. The foster mother testified that D.S.J. calls her "mama." She explained that D.S.J. had delays from the beginning and that taking care of her was "quite a bit" of a time commitment. At 14 months old, D.S.J. had just begun crawling, and she could not yet walk. The child also suffered from a "heavy gag reflex," and she had difficulty swallowing. She was barely able to eat solid foods. The foster mother stated that each feeding session was 45 minutes long.
D.S.J. received oral therapy and physical therapy to treat her delays, and she was responding well to both. D.S.J.'s oral therapist regularly instructed the foster mother on different feeding techniques to further develop the child's chewing abilities and "get to the next milestone." D.S.J.'s physical therapist believed the child would be walking within six months. Therapy appointments were scheduled once per week. D.S.J. also had been in an infant development program for five months.
The foster mother stated that neither parent had asked her about D.S.J.'s delays, which she described as "obvious." She thought it would be concerning if the parents could not identify the child's delays. The foster mother further testified that D.S.J. is "wonderful," and that she planned to adopt the child if the mother's and father's parental rights were terminated.
In its final order, the trial court found that the mother and the father each had committed the predicate acts of endangerment, constructive abandonment, and failure to comply with a court order. See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N), (O). It also found that termination of both the mother's and the father's parental rights was in D.S.J's best interest. Based upon those findings, the trial court terminated the parental rights of both parents. The Department was named sole managing conservator of the child.
Both parents appealed.
Analysis
On appeal, the mother argues that the evidence was legally and factually insufficient to support termination of her parental rights under Section 161.001(b)(1)(D), (E), and (N). She also contends that the evidence was legally and factually insufficient to support the finding that termination of her parental rights was in the child's best interest. The father concedes that the evidence was legally sufficient to terminate his parental rights, but he argues that the evidence was factually insufficient to support the finding that termination of his parental rights was in D.S.J.'s best interest. He additionally asserts that the evidence was insufficient to support the trial court's appointment of the Department as the child's sole managing conservator.
I. Termination of parental rights
To terminate parental rights, the State must establish by clear-and-convincing evidence that there is at least one statutory ground for termination and the termination is in the child's best interest. TEX. FAM. CODE § 161.001(b)(1), (2); In re J.F.C., 96 S.W.3d 256, 262 (Tex. 2002). 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.
In reviewing the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the trial court's finding to decide "whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." We assume that any disputed facts were resolved in favor of the finding as long as a reasonable factfinder could have done so. J.F.C., 96 S.W.3d at 266. To assess factual sufficiency, we consider the evidence in light of the entire record, and ask whether the disputed evidence that a reasonable factfinder could not have resolved in favor of the finding is so significant that the factfinder could not reasonably have formed a firm belief or conviction. Id.
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The mother's brief argues that a "de novo review" is required. The Department responds that this argument is inadequately briefed, see TEX. R. APP. P. 38.1(i), and we agree. The issue is not resolved merely by acknowledging the importance of the rights at issue, which is the entire substance of the mother's argument. The mother does not offer any substantive legal argument to answer the open, and hardly self-answering, question identified in J.F.C. of whether, in appellate review of parental-termination decrees, "the United States Constitution requires the type of review set forth by the United States Supreme Court" in defamation cases and for punitive damage awards, and if so, whether the standards of review applied in J.F.C. "would comport with the de novo review required by those decisions." 96 S.W.3d 256 at at 267-68 & nn. 42-43 (citing Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 685-86, 109 S. Ct. 2678 (1989), Bose Corp. v. Consumers Union, 466 U.S. 485, 515-16, 104 S. Ct. 1949 (1984), and Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 436, 121 S. Ct. 1678 (2001)). As one aspect of the complexity of the legal analysis for Texas state courts, J.F.C.'s pinpoint citations to Bose identify a discussion of the standard of review in then-Justice Rehnquist's dissenting opinion. See id. at 268 nn. 42 & 45 (citing Bose, 466 U.S. 485 at 515-16). In any case, even if we were to conclude that "de novo review" is required, the mother's brief does not address the second part of the question identified in J.F.C., whether the standards currently applied in Texas satisfy the requirement of "de novo review" in a context that involves application of law to factual determinations being made in the trial court. The mother offers no argument that a de novo review would lead to a different result in this case than the application of the ordinary standard of review routinely applied by Texas courts in termination appeals.
A. Predicate findings of endangerment
Only one predicate finding under Section 161.001(b)(1) is required to support a judgment of termination when there is also a finding that termination is in the best interest of the child. In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Typically, if any predicate finding is conceded or unchallenged, it is not necessary to review the legal or factual sufficiency of the evidence as to any other predicate grounds. See id.; see also In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The mother concedes that the evidence was sufficient to support the trial court's finding under paragraph (O). The father's brief does not challenge any of the predicate findings; he argues only that the evidence was insufficient to support the court's best-interest finding under Section 161.001(b)(2). Thus, the father concedes the sufficiency of the evidence to support the trial court's findings under Section 161.001(b)(1). See L.M., 104 S.W.3d at 647.
The mother's brief argues that unchallenged predicate findings can be used to support a finding that termination is in the best interest of the child, and that they also can have collateral consequences in subsequent termination proceedings involving other children. See TEX. FAM. CODE § 161.001(b)(1)(M) (predicate termination ground applicable to a parent who has "had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state"). Accordingly, despite the fact that other predicate findings have been conceded by both parents, we will analyze the sufficiency of the evidence of endangerment grounds to support termination of their parental rights.
Among the predicate findings that justify parental termination under Section 161.001(b)(1), a factfinder may find that a child has been endangered by a parent who has knowingly placed or allowed the child to remain in conditions or surroundings which endanger the child's physical or emotional well-being, id. § 161.001(b)(1)(D), or who has "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," id. § 161.001(b)(1)(E).
Both the mother and father have histories of illegal drug use. Although the mother did not test positive for drugs while this case was pending, she tested positive for synthetic marijuana several times while the termination suit involving D.S.J.'s older sibling was pending. This included a three-month period when the mother admittedly knew that she was pregnant with D.S.J. In addition, D.S.J. tested positive for barbiturates at birth. The mother conceded that using drugs while she was pregnant endangered D.S.J.
The father tested positive for drugs prior to D.S.J.'s birth, while the Chambers County case was still pending. He continued to test positive for illegal drugs after D.S.J. was born, and he admitted to excessive use of drugs and alcohol during the month following her birth. The father twice tested positive for cocaine in the six months leading up to trial. He conceded that using drugs was not safe for his children.
The evidence of the father's continued use of illegal drugs, the mother's use of illegal drugs while pregnant, and both parents' admissions that the drug use put D.S.J. at risk, supports the conclusion that both parents engaged in conduct that endangered the physical and emotional well-being of the child. See In re A.C., 394 S.W.3d 633, 641 (Tex. App.—Houston [1st Dist.] 2012, no pet.); see also Latham v. Dep't of Family & Protective Servs., 177 S.W.3d 341, 348 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The drug use, combined with the fact that neither parent completed his or her court-ordered reunification plan, established clear and convincing proof of deliberate conduct that endangered the well-being of their child. See A.C., 394 S.W.3d at 647.
Evidence of the father's history of criminal activity, imprisonment, and mental illness also was presented to the trial court. The father had spent time in jail for a drug-possession offense that occurred less than two months before D.S.J. was born. He had been incarcerated on several other occasions, including when his parental rights to his other two children were terminated. He admitted that he had several assault convictions, including two convictions for assaults against the mother of his other two children. Although he stated that those two assaults occurred while he was coming out of a seizure, the caseworker testified that she did not know whether or not the father was taking medication for a seizure disorder at the time of trial. No additional evidence was presented to demonstrate that the father was being medicated for a seizure disorder.
There was undisputed testimony that the father had a history of mental-health issues and suicide attempts. He admitted that his last suicide attempt was just after D.S.J. was born and that the mother saved his life on that occasion. Although the father testified that he had participated in regular psychiatric care since the onset of the termination suit, and that he consistently took medications prescribed to him by a mental-health service provider, the caseworker believed that he had a history of discontinuing his medications. The evidence of the father's history of criminal activity, incarceration, and mental-health issues supports the conclusion that he had engaged in conduct that endangered the physical and emotional well-being of D.S.J. See In re T.G.R.-M., 404 S.W.3d 7, 14 (Tex. App.—Houston [1st Dist.] 2013, no pet.); see also In re S.A.P., 459 S.W.3d 134, 145 (Tex. App.—El Paso 2015, no pet.).
Viewing the evidence in the light most favorable to the trial court's findings, we conclude that a reasonable factfinder could have formed a firm belief that D.S.J. was physically or emotionally endangered by the parents' conduct. TEX. FAM. CODE § 161.001(b)(1)(E). The mother conceded that she used drugs after she became aware she was pregnant with D.S.J. Although the father challenged some of the details surrounding his convictions, and which illegal drugs he used while the case was pending, it was undisputed that he had various convictions for which he had served time in jail. It also was undisputed that he used various illegal drugs while the case was pending. In light of the entire record, we conclude that any disputed evidence is not so significant that a reasonable factfinder could not have resolved the disputes in favor of the court's finding. Therefore, we conclude that the evidence was both legally and factually sufficient to support the endangerment findings under paragraph (E).
Because termination based on a violation of either paragraph (D) or (E) is sufficient to invoke paragraph (M) in a future proceeding, we need not separately address the sufficiency of the evidence to support the trial court's finding under paragraph (D). We overrule the mother's first issue.
B. Best interest of the child
There is a strong presumption that the best interest of a child will be served by maintaining the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). There also is a presumption that prompt and permanent placement of a child in a safe environment is in the child's best interest. In re K.P., 498 S.W.3d 157, 173-74 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). To determine whether a reasonable factfinder could form a firm belief or conviction that termination of the parent-child relationship was in the best interest of the child, we consider the factors set out in Holley v. Adams: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child 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 child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. 544 S.W.2d 367, 371-72 (Tex. 1976). The list is neither exhaustive, nor is evidence of all nine factors required to support a judgment of termination. Id. at 372. Direct and circumstantial evidence, subjective factors, and the totality of the evidence may be considered in conducting this analysis. In re J.M.T., 519 S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
Desires and needs of the child.—D.S.J. was approximately 14 months old at the time of trial. When a child is too young to express her desires, the factfinder may consider evidence that the child is well-cared for by her foster family, that she has spent minimal time with the biological parent, and of any bond she may have developed with her foster family. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The caseworker testified that the mother and father had visited with D.S.J. for only 12 hours. Although the mother stated that she also had spent time with D.S.J. every day while the child was in the intensive care unit for ten days immediately following her birth, neither the mother nor the father otherwise disputed the caseworker's testimony. In contrast, D.S.J. had lived with the foster mother since she was five weeks old, and the foster mother testified that the child called her "mama." The caseworker testified that the child was well-bonded in the foster home, and that she was not well-bonded to either of the parents. She believed the lack of bonding was the parents' fault. The Chambers County caseworker also indicated that if D.S.J. remained with her foster family, she would have opportunities to spend time with her brother R.J.
Both the caseworker and D.S.J.'s foster mother testified that the child was severely developmentally delayed. The foster mother spoke about the specific delays D.S.J. had experienced, and she explained the different therapies and treatments the child was receiving in order to improve her development. The foster mother also spoke about the substantial time commitment involved in caring for D.S.J. The caseworker testified that D.S.J. was getting the care she needed with her foster parents.
In contrast, neither the mother nor the father was able to discuss D.S.J.'s developmental delays in detail. Both the caseworker and the foster mother testified that neither parent had asked for information about the delays. However, the mother testified that she requested information from the caseworker regarding D.S.J.'s developmental needs, and she filed a complaint because she did not receive a response. The mother also testified that she would be willing to take D.S.J. to a medical professional to be evaluated for potential developmental delays. In his brief, the father concedes that D.S.J. requires "extensive" specialized care, that her caregivers are trained and licensed accordingly, and that all of her special needs are being met.
Endangerment of the child.—In determining the best interest of a child, a factfinder may consider evidence of a parent's past behavior that endangered the well-being of the child and infer that the conduct may recur in the future if the child is returned to the parent. In re S.P., 509 S.W.3d 552, 557 (Tex. App.—El Paso 2016, no pet.). The factfinder also may consider the parent's past neglect or inability to meet the physical and emotional needs of the child in analyzing the factor of parental ability. Id. at 557-58.
The referral received by the Department stated that D.S.J's older sibling R.J. already had been removed from the home due to the parents' history of substance abuse. The father recently had been arrested for drug possession. Further evidence at trial established that both the mother and the father have long histories of illegal drug use. The caseworker testified that in their psychosocial assessments, each parent indicated that he or she did not believe the drug use had a negative impact on his or her parenting abilities.
The mother had last tested positive for drugs almost 21 months before trial. Nevertheless, testimony revealed that the mother had a history of using illegal drugs while pregnant. This accusation was supported by the mother's admissions that she had knowingly used drugs while pregnant with D.S.J., and also used drugs while pregnant with R.J. The father tested negative for illegal drugs for almost six months prior to trial. However, the evidence presented at trial demonstrated that he had a long history of substance abuse, domestic violence, serious mental-health issues, and criminal activity.
The trial court also could have considered the parents' failure to visit with D.S.J. regularly while the case was pending as a factor in determining the best interest of the child. See id. at 558. Further, the trial court was permitted to infer that the parents' failure to complete their service plans indicates a continued danger to the child. See id.
Programs available to promote child's best interest.—There was no evidence presented at trial about any programs available to D.S.J.'s foster parents. The evidence did establish that several programs and services had been offered and provided to the mother and father through the family service plans to assist them in providing a safe environment for D.S.J. The father completed his psychosocial and drug assessments, and he participated in continued psychiatric care. But he did not complete parenting classes, couples counseling, or trauma-informed counseling. Despite a history of domestic violence, the father also failed to complete a battering intervention and prevention program. While he testified that he was set to finish the program within less than a month of trial, he admittedly had only been taking the program for a "couple of weeks." The caseworker testified that it was a 20-week program. The mother completed her psychosocial and drug assessments, and she participated in random drug testing. But she did not complete couples counseling, parenting classes, or individual therapy. She failed to complete required domestic violence counseling. The trial court could infer from a parents' failure to utilize the available programs that the parents did not have the ability to motivate themselves in the future. Id.
Parental abilities , plans for the child , and stability of home.—The foster mother testified that she planned to adopt D.S.J. if the mother's and father's parental rights were terminated. The evidence at trial indicated that D.S.J. was well-cared for in the foster home.
Both the mother and the father had other children involved in termination suits or previously removed from their care. The mother agreed that she was previously unable to take care of any of her children, including D.S.J., due in part to a lack of stable housing. The father stated that he was incarcerated when one of his other two daughters was born, and when his parental rights to his other two daughters were terminated. The parents had only recently began caring for the mother's three older daughters, and the Chambers County caseworker testified that there was an ongoing investigation involving those three children.
The caseworker for D.S.J. testified that the mother and father did not maintain a stable home environment for six months as required by their family service plans. The father stated that he and the mother had lived in three different places, and they stayed at hotels and with friends while the case was pending. At the time of trial, the parents had been living together in a home for approximately four to five months. The caseworker agreed that the current home environment was stable.
Acts or omissions of the parents.—Although the mother and the father both completed several of the tasks and services in their respective family-service plans, by the time of trial, neither had followed through with the required steps for reunification with D.S.J. The mother testified that she was required to complete many tasks and services between the Harris County case and the Chambers County case, and that she was actively working to complete services.
Some evidence indicated that the parents visited with D.S.J. once within two months of her placement into the Department's care. They did not visit with D.S.J. again until four months before trial. The mother testified that the gap in visits was due to a lack of transportation. Both parents had moved four hours away and they did not have a vehicle to make visits. The mother testified that despite having two pending termination suits, she made the choice to move in order to have a better life away from drugs. She stated that she set up visits once they got a vehicle. However, the caseworker testified that the parents continued to miss visits even after they created their own visitation schedule. She stated that she would be the one to initiate contact with the parents in order to confirm visits, and they would respond by text message that they could not make it. The caseworker testified that the parents identified class and work as reasons for missing later visits.
The father continued using drugs while the case was pending, and was arrested and incarcerated for drug possession. He stated that he had not been using drugs around of time of his two most recent positive drug tests, and he claimed the drugs he had been arrested for belonged to someone else.
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After reviewing all of the evidence in the light most favorable to the trial court's best-interest finding, we conclude that a reasonable factfinder could have formed a firm belief or conviction that termination of the mother's and father's parental rights was in D.S.J.'s best interest. We further conclude, viewed in light of the entire record, any disputed evidence that a reasonable factfinder could not have resolved in favor of the best-interest finding was not so significant that the factfinder could not reasonably have formed a firm belief or conviction. Thus, we hold the evidence was legally and factually sufficient to support termination of both the mother's and the father's parental rights to D.S.J.
II. Appointment of managing conservator
The father argues that the court should have appointed both the parents and the Department as joint managing conservators to D.S.J. in order to maintain a blood-relative relationship.
If the court terminates the parental rights of both parents, it "shall appoint a suitable, competent adult, the Department of Family and Protective Services, or a licensed child-placing agency as managing conservator of the child." TEX. FAM. CODE § 161.207(a). The appointment of a nonparent managing conservator is subject to a lower standard of proof than termination, and it requires a finding only by the preponderance of the evidence that appointment of a parent would "significantly impair the child's physical health or emotional development." In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). The decision is reviewed for abuse of discretion. Id. Because we already have concluded that the evidence was sufficient to support termination of both parents' parental rights, we also conclude that the trial court did not abuse its discretion in appointing a nonparent as D.S.J.'s managing conservator.
Further, the father's brief asserts that D.S.J. will have no blood relative in her life should she be adopted by her foster caregivers. However, the Chambers County caseworker testified that R.J.'s foster home maintains communication with D.S.J.'s foster home, and the children will have the opportunity to see each other.
We conclude that the trial court has not been shown to have abused its discretion in appointing the Department as D.S.J.'s sole managing conservator. We overrule the father's second issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice Panel consists of Justices Jennings, Massengale, and Caughey.