Summary
stating that trial court entitled to disbelieve Father's self-serving testimony that panhandling was not endangering children's physical and emotional well-being
Summary of this case from In re A.F.R.Opinion
NO. 14-17-00993-CV
05-08-2018
IN THE INTEREST OF K.P.C., K.M.C., AND K.S.C., CHILDREN
On Appeal from the 314th District Court Harris County, Texas
Trial Court Cause No. 2016-04317J
MEMORANDUM OPINION
Appellants K.M.D. (Mother) and C.C. (Father) appeal the trial court's final decree terminating their parental rights and appointing the Department of Family and Protective Services as sole managing conservator of K.P.C. (Kirk), K.M.C. (Kyle), and K.S.C. (Kevin). Both parents' rights were terminated on the predicate grounds of endangerment, constructive abandonment, and failure to comply with a family service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), and (O) (West Supp. 2017). The trial court further found that termination of the parents' rights was in the best interest of the children.
Pursuant to Texas Rule of Appellate Procedure 9.8, we use fictitious names to protect the identities of the minors.
In a single issue Mother challenges the factual sufficiency of the evidence to support the trial court's finding that termination is in the best interest of the children. In five issues, Father challenges the legal and factual sufficiency of the evidence to support the trial court's findings on the predicate grounds and that termination is in the best interest of the children. Neither parent challenges the appointment of the Department as managing conservator of the children. We affirm because the evidence is legally and factually sufficient to support the trial court's findings on the predicate grounds and that termination is in the children's best interest.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Proceedings
Father argues in his brief that the removal affidavit allegations are hearsay. Upon his objection, the allegations were removed from the family service plans that were admitted into evidence. We note, however, that the substance of the removal affidavit allegations was admitted through the testimony of the conservatorship worker for the Department.
On July 20, 2016, the Department received a referral alleging neglectful supervision and physical neglect of the three children. The report noted that the children have been observed with both of their parents, "since at least winter time" from approximately 9:30 a.m. until after dark every day along the median and side walk of the intersection at Westheimer and Post Oak near the Galleria mall, a high traffic area, soliciting money. The report stated that the intersection is dangerous and people have been hit by cars and stabbed at the location in the past. The report stated that the children run into the street and wear dirty clothes. The report noted that Father pulls the children by their arms and pushes them down in a chair. There have been no observed bruises, cuts, or scrapes on the children. The oldest child's arm was broken during the winter, but the person making the report did not know how the arm was broken. The report also stated that the children have sunken eyes and their collar bones and arm bones are protruding. Water has not been observed with the parents and the children seem "out of it."
2. The Investigation
The day after the report was made a Department investigator contacted the person who made the report, who the investigator found to be a credible person. The reporter stated that the children are extremely dirty and appear to be malnourished. It was reported that the family arrives at the intersection around 9:00 a.m. and stay until after dark along the sidewalk of Westheimer and Post Oak. The children were observed during "frigid winter temperature" and "in the extreme heat of the summer" all day without water or food. The children all wear diapers although they appear to be too old to be in diapers. The reporter assumed the children were wearing diapers so the parents would not need to take them to a restroom. The children were seen running around the intersection in close proximity to traffic, and the children sometimes ran into the street.
Rhonda Carson, the Department investigator, made contact with the family along Post Oak Boulevard. Carson found the children were filthy with no sign of available drinking water. The oldest child appeared thin for his age. Initially Carson observed the children sitting in their chairs they had brought to the intersection. They eventually began running around dangerously close to the roadway and to the end of the block. Carson told Father to "get off his phone and go get his 3 year old son who had run to the end of the block." Father cursed at Carson and told her to mind her own business. The three children were running in different directions next to the street and Father was unable to control their behavior and keep them safe. Father reported that the Department, law enforcement, and "the judge" all know he is panhandling with his children and have told him he can have his children with him while he solicits money because he is a part of a charitable organization. Carson told Father he could not keep the children in the intersection and requested that Father participate in a Parental Child Safety Placement. Father became aggressive with Carson and left the area with the children. The children were not secured by child safety seats or seat belts in the vehicle with Father. Later that evening an employee of Dillard's Department Store near the intersection called Carson and told her that at 7:00 p.m. Mother drove Father and the children back to the intersection and dropped them off.
Mother called Carson the same day and explained that the parents were allowed to keep the children out at the intersection as long as they kept them hydrated and fed. Mother claimed that she and Father are ministers and are helping those less fortunate than they are. Mother spoke "in a rambling pattern" that made it difficult to understand her at time. Mother ended the conversation by telling Carson that Father and the children would be back at the intersection the next day and to "leave them alone."
The next day Carson met with Mother and Father at another shopping mall. Mother showed Carson a "DBA certificate" for "Hulaluhu Outreach Ministries" and a permit for charitable solicitation from the City of Houston. The permit was a thirty-day permit that expired almost one year earlier. Mother explained that the expired permit was not a problem because the "DBA" was good for ten years. Carson observed that the children were cleaner than the day before, but they smelled strongly of urine. Carson asked Mother about her mental health, and Mother reported she had bipolar disorder and a seizure disorder. Mother also reported that she needed a twenty-four-hour caretaker due to these disorders. Carson noted that during her interactions with Mother she never saw a caretaker. Mother reported that the children had Attention Deficit Hyperactivity Disorder, but she could not remember the last time they took their medication. When asked for potential placement for the children, Mother named her mother who is wheelchair-bound. Mother's suggestion was not approved by the Department. Both parents were served with a notice of removal based on extensive history with the Department and safety issues observed by the investigator that were consistent with neglectful supervision and physical neglect. The investigator also informed the parents of the courthouse address for the hearing the next day.
3. Parents' Department History
On December 20, 2014, the Department received a referral alleging physical neglect of the children. The report stated that the family was outside the Galleria mall and soliciting for money. The parents refused to go inside the mall because they "have a certain amount of money they need to reach first." Mother was confrontational with law enforcement and appeared to have mental health issues. Father appeared "more reasonable" but reported having been diagnosed with schizoaffective disorder and not on medication. The case was investigated and "ruled out."
On May 12, 2015, the Department received another referral alleging neglectful supervision of the children by Father. The report stated that one of the children came to school with a burn allegedly caused by his four-year-old sibling. The child who had been burned told a detailed story about his father shooting a man in the car while the child was present, and there "being blood all over." The children came to school dirty and were reported to be developmentally delayed. This case was also investigated and ruled out.
On July 22, 2015, the Department received another report that the parents may suffer from mental illness and the family had been panhandling again in the Galleria area. The children had been seen running out in the street and "almost getting hit on a daily basis." Both parents were reported to instigate and provoke passers-by into altercations. There had been at least eight fights in front of the children. Law enforcement was contacted, but the parents would leave before the police arrived. The children were reported to always be dirty and in the same clothes, but Mother was reported to wear "nice clothes" and carry designer purses. Father was heard cursing at the children, and telling them, "you will eat later." This case was also investigated and ruled out.
On November 24, 2015, the Department received another report that the family was seen begging for money outside of a store. The report stated that the parents drive a nice vehicle and Father can be seen "yanking" the children around while they should be in school. The case was closed because the family could not be located.
On December 4, 2015, the Department received a referral alleging medical neglect of the oldest child, Kirk. Kirk was vomiting every day in the classroom since the beginning of the school year, but Mother would not take the child to a doctor and claimed he was vomiting for attention. This case was investigated and ruled out.
On January 29, 2016, the Department again received a referral alleging physical neglect of all three children by both parents. Kirk came to school in an "all-night pull up," which contained dried feces and smelled of urine. It was reported that Kirk comes to school on a regular basis with dirty clothes and an odor. Mother came to the school and was seen grabbing Kirk by the back of the neck and squeezing hard until Father made her let go. The case was investigated and ruled out.
On June 14, 2016, the Department received another referral alleging the physical neglect of all three children by Mother. The report stated that Mother is a "psych patient" and may be "manic depressive." Both parents argued for 25 minutes while the children ran in different directions. It was also reported that the children are "always filthy with dirty clothes and have an odor." Mother hits the children and does not care for them. It was suspected that Mother used crack cocaine. The case was again investigated and ruled out.
4. Parents' Criminal History
Since 2006, Father has been convicted of driving while license suspended three times, assault, and resisting arrest. Mother was convicted of theft in 2008, and an aggravated assault charge with a deadly weapon was dismissed in 2014.
5. Pretrial Removal Hearing
At a hearing after the initial removal, investigator Carson testified about the latest referral alleging neglectful supervision while the children were panhandling in the intersection outside the Galleria mall. Carson also testified to the previous referrals that had been investigated and ruled out.
Carson testified that when she met with the family the day after the latest referral, the children were very hungry. The children were unable to tell Carson how long it had been since they had eaten.
Carson testified that both parents appeared to be mentally unstable. Although Mother usually drives the family to their panhandling location, she is not supposed to drive because of her seizure disorder. The Department requested temporary managing conservatorship and requested drug testing on both parents as well as DNA testing on Father. The children were placed in foster homes with the oldest two boys in one home, and the youngest in another foster home. The Department was working to get all three boys placed in a single foster home and expected to accomplish that goal in thirty days.
6. Family Service Plans
The trial court ordered both parents to comply with family service plans, which required the parents to:
• acquire and maintain stable housing for more than six months;
• refrain from engaging in any criminal activities;
• submit to random urine analysis;
• acquire and maintain legal form of employment and provide documentation in the form of payroll stubs to the caseworker;
• attend all court hearings, permanency conference meetings and family visits;
• participate fully in a psycho-social evaluation and follow all recommendations;
• participate in parenting classes in person; and
• complete a substance abuse assessment and follow all recommendations.
The caseworker went over the service plans with each parent, and each parent signed his or her service plan.
A progress report filed with the Department one month before trial showed that Mother had not completed parenting classes or a psycho-social evaluation. Mother was not taking regular drug tests. Mother did not attend visits, court hearings, or case related meetings regularly. Mother refrained from criminal activities, but failed to provide proof of a stable income or housing.
Father completed parenting classes and a psycho-social evaluation, but failed to complete individual therapy. Father completed a substance abuse assessment, but did not follow any recommendations from the assessment. Father submitted to several random drug tests, but refused to participate in several other court-ordered tests. Father tested positive for cocaine and marijuana on August 11, 2016. Father refrained from criminal activity, but did not provide proof of stable income or housing. Father completed a psychiatric evaluation, but has not followed the recommendations from the evaluation.
B. Trial
At the beginning of trial the Department introduced exhibits including the parents' service plans, results of drug screens, a copy of Mother's affidavit of relinquishment, a charging instrument reflecting Father's guilty plea to resisting arrest, and DNA results showing that Father is the father of all three children. Mother objected to the copy of her affidavit of relinquishment because she withdrew her relinquishment. The trial court sustained Mother's objection. Both parents objected to hearsay statements in the family service plans, which consisted of the original removal allegations. The trial court admitted the family service plans with the removal affidavit allegations redacted. All other exhibits were admitted without objection.
The caseworker testified that the children came into the care of the Department because they were found outside the Galleria mall on multiple occasions soliciting money. The Department was concerned about Mother's mental health diagnosis and Father's drug use. The children did not appear to be appropriately clothed or well fed.
The children, ages eight, six, and four, have behavioral issues in school. They choose to urinate on themselves rather than use a restroom, are aggressive toward other students, and do not respond to any form of consequence. The foster mother is working diligently and patiently with the children to help them in their daily routines. The caseworker has observed the children with both parents during supervised visitation. The children appear to have a bond with Father although he has difficulty disciplining them. Mother commonly spends a lot of her visitation time talking about the termination case and does not appear to interact with the children.
The caseworker expressed the opinion that the parents do not have the skills to monitor the children while panhandling on a busy street, and that the children were placed in danger by the parents. The Department also removed the children because the parents were abusing drugs and alcohol and suffer from mental illness. The parents participated in the development of their service plans and understood their parental rights could be terminated if they did not comply with the plans.
At the time of trial Mother had completed parenting classes and a psycho-social evaluation. Mother attended some visitations, court hearings, and meetings, and attended a majority of her requested drug tests. Mother refrained from criminal activity, but does not have a stable home or income. Father completed parenting classes, a psycho-social evaluation, and a substance abuse assessment, but did not follow the recommendations of the evaluation or assessment. Father refrained from criminal activity, did not have a stable home or income, and did not attend all requested drug tests.
The Department is unable to confirm Mother's reported mental health diagnosis because Mother has not submitted to a psychiatric evaluation by the Department's contractor. Mother provided the caseworker with an abbreviated evaluation she received from a mental health agency in Louisiana. Mother has also failed to provide proof that she is taking medication to address her mental illness. The caseworker described Mother's participation in services as "minimal."
The caseworker has observed Mother's erratic behavior, mood changes, and an inability to communicate effectively. This behavior caused the caseworker to be concerned about Mother's mental health. After observing Mother during supervised visits, the caseworker further expressed concern about Mother's ability to parent the children. Specifically, Mother made negative comments toward the children including comments on their behavior, where they lived, and how short a period of time she had to visit with them.
Turning to the children, the caseworker testified that they are all three placed together in a foster home. The home meets their basic needs in addition to the special needs of each child.
Kirk, the eight-year-old, has participated in a mental health examination that resulted in diagnoses for ADHD, generalized anxiety disorder, intellectual disability, mild autism spectrum disorder, schizophrenia, bipolar disorder, post-traumatic stress disorder, language disorder, and enuresis. Kirk has "special behavioral issues," and has harmed himself in the past. Specifically, Kirk scratched himself to the point of bleeding requiring multiple medical appointments to ensure against infection. Kirk is developmentally delayed and has problems with toilet training. Kirk is in second grade, but is behind for his age. Kirk can write some things, but requires constant attention and instruction to do so. He is learning to put his clothes on, but also requires someone standing next to him and "walking him through everything." Kirk also does not follow direction in school.
Kyle, the six-year-old, has also undergone a mental health evaluation and been diagnosed with intellectual disability, mild ADHD, generalized anxiety disorder, child in foster care, major depressive disorder, post-traumatic stress disorder, language disorder, and enuresis. Kyle takes psychotropic medication for bipolar disorder, ADHD, and schizophrenia. Kyle has behavioral issues including a short attention span, the inability to do much on his own, and being very disruptive in class. The children frequently urinate on themselves. Kyle has a small speech delay. He is in the first grade, but is unable to be in a regular classroom due to his behavioral issues.
Kevin, the five-year-old, has been diagnosed with ADHD and takes medication to treat it. Kevin displays behavioral issues similar to those of his brothers. All three children participate in regular therapy including behavioral therapy, play therapy, and individual therapy.
The foster parents are meeting the children's needs and using the support system available to them to help the children. Although the foster family is committed to the children they are not willing to adopt them.
The Department is working with the children's maternal aunt who would like to adopt the children. The aunt has a stable income and housing. Mother claims the aunt uses drugs, which is one reason the Department has been reluctant to conduct a home study on the aunt.
The Department believes that the parents placed the children in emotional and physical danger by allowing the children to accompany them while they solicited for money on a public street. The Department further believes that the parents' visits with the children have negatively impacted the children.
The Court Appointed Special Advocate (CASA) volunteer testified that he was recommending termination of both parents' rights. The children have special needs and there is concern that the parents are unable to meet those needs. The CASA volunteer has observed the parents' visits with the children. He noted that the children need constant attention and that the parents do not appear able to provide the attention they need. The volunteer testified that the children have a bond with Father, but do not receive much attention from Mother.
The CASA supervisor testified that since the children were taken into the care of the Department, she had seen Father panhandling on three or four occasions in the crosswalk at the Galleria mall. The supervisor did not see Mother in the crosswalk with Father. The area is unsafe for any children unless they are monitored appropriately.
After the Department rested, Mother testified. She stated that she was not at the Galleria mall at the time the children were removed. Mother is currently living in an extended-stay hotel. Mother testified that she had done everything she was asked to do in the service plan and she asked the trial court to consider allowing her to keep her children. Mother testified that she receives checks for two of her children; she believes the Department now receives the money.
Mother testified that because she had documentation verifying a charitable organization she was permitted to solicit money on the street with her children. Mother testified that the children were sitting in chairs while Father was panhandling, and that they were safe. Mother testified that they were teaching their children that they did not need to steal to get money. She further testified that by soliciting money they were planning to "help the homeless." Mother denied dropping Father and the children off at the Galleria. A week before trial, Mother and Father were at the Galleria where Father was panhandling. Although Mother drove Father to the Galleria, she claimed they were separated. Mother testified that she was singing while standing on the same median as Father, but only Father was panhandling.
After Mother rested, Father testified and admitted soliciting money, but claimed the children were safe while they were with him. Father denied that the children were close to traffic or that law enforcement had told him he could not have the children out there with him. Father testified that he was taking his medication and was attending therapy. Father has bonded with the children and is looking for stable housing so he can keep them. Father is also looking for jobs with little success. Father admitted he was homeless with no vehicle. If his children were returned to him he would get a hotel room.
Kevin Thomas, a minister at Faith Ministry Baptist Church, testified that he had known Father for approximately three years. Thomas met Father at the Galleria and testified that Father was always there with his children. Thomas denied that the children were in danger when Father was panhandling. Thomas saw Father and the children at the Galleria four to five times per week. Thomas believes the children will be devastated if their father's parental rights are terminated. Thomas is willing to support Father if he is able to keep his children. On cross-examination, Thomas admitted that he knows Father because he also panhandles in the same area.
Following the bench trial, the trial court found by clear and convincing evidence that it was in the best interest of the children that both parents' rights be terminated, and that the evidence supported predicate grounds of termination of both parents' rights under sections 161.001(b)(1)(D), (E), (N), and (O) of the Texas Family Code. This appeal followed.
In a single issue, Mother challenges the factual sufficiency of the evidence to support the trial court's finding that termination of her rights is in the best interest of the children. In five issues, Father challenges the legal and factual sufficiency of the evidence to support the trial court's predicate findings and the finding that termination of his parental rights is in the best interest of the children.
II. ANALYSIS
A. Standards of Review
Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional magnitude, they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002) ("Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.").
Due to the severity and permanency of terminating the parental relationship, Texas requires clear and convincing evidence to support such an order. See Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). "Clear and convincing evidence" means "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 Ann. § 101.007; In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing legal sufficiency of the evidence in a parental termination case, we must consider all evidence in the light most favorable to the finding to determine whether a reasonable fact finder could have formed a firm belief or conviction that its finding was true. In re J.O.A., 283 S.W.3d at 336. We assume that the fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and we disregard all evidence that a reasonable fact finder could have disbelieved. Id.; In re G.M.G., 444 S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.). However, this does not mean that we must disregard all evidence that does not support the finding. In re D.R.A., 374 S.W.3d at 531. Because of the heightened standard, we also must be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id.
In reviewing the factual sufficiency of the evidence under the clear-and-convincing burden, we consider and weigh all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d at 345. "If, in light of the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. We give due deference to the fact finder's findings and we cannot substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
In a proceeding to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the petitioner must establish, by clear and convincing evidence, one or more acts or omissions enumerated under subsection (1) of section 161.001(b) and that termination is in the best interest of the child under subsection (2). Tex. Fam. Code § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
B. Predicate Termination Grounds
In his second issue, Father argues the evidence is legally and factually insufficient to support the trial court's finding under subsection E of section 161.001(b)(1).
Relevant to this issue, subsection E provides that termination of parental rights is warranted if the fact finder finds by clear and convincing evidence, in addition to the best-interest finding, that the parent 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." Tex. Fam. Code Ann. § 161.001(b)(1)(E). "To endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. See In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
Under subsection E, the evidence must show the endangerment was the result of the parent's conduct, including acts, omissions, or failures to act. In re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Termination under subsection E must be based on more than a single act or omission; the statute requires a voluntary, deliberate, and conscious course of conduct by the parent. Id. A court may consider actions and inactions occurring both before and after a child's birth to establish a "course of conduct." In re S.M., 389 S.W.3d 483, 491-92 (Tex. App.—El Paso 2012, no pet.).
While endangerment often involves physical endangerment, the statute does not require that conduct be directed at a child or that the child actually suffer injury; rather, the specific danger to the child's well-being may be inferred from parents' misconduct alone. Texas Dept. of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort Worth 2004, pet. denied). A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re A.L.H., 515 S.W.3d 60, 92 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). Endangerment can also include knowledge that a child's parent abused drugs. In re U.P., 105 S.W.3d 222, 234 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (finding evidence legally sufficient to support endangerment when father knew mother abused drugs while pregnant, but failed to report mother to the Department or police).
Evidence of criminal conduct, convictions, imprisonment, and their effects on a parent's life and ability to parent, may establish an endangering course of conduct. In re S.M., 389 S.W.3d at 492. Routinely subjecting children to the probability that they will be left alone because their parent is in jail endangers the children's physical and emotional well-being. See Walker v. Tex. Dep't of Human Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
In challenging the trial court's endangerment finding, Father argues that (1) a single positive drug screen result does not establish a continuing course of conduct; and (2) the presence of the children with Father while he was soliciting on a roadside does not establish a continuing course of endangering conduct.
Less than a month after the children were removed, Father tested positive for marijuana and cocaine. Father did not test positive on any subsequent tests, and he argues that his single positive test does not establish endangering conduct. Father ignores the evidence that he was ordered to submit to drug tests and did not appear or walked away before the tests could be administered. Father failed to submit to these tests despite being informed that a refusal to take a test would be considered a positive result.
In addition to the positive drug test results and the refusal to take ordered tests, the record reflects that Father endangered his children by taking them with him while he solicited money on a busy intersection. "As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being." In re J.O.A., 283 S.W.3d at 345 n. 4 (quoting In re R.W., 129 S.W.3d at 739. The record reflects that Father took his three children with him to panhandle along a busy intersection. The children were seen running into the street, they appeared malnourished and dehydrated, they were physically punished when they left their chairs, and they wore diapers despite being old enough to be toilet trained.
Father argues the Department failed to show the children were in "actual danger." Proof that a parent endangers a child under subsection E does not require proof of actual danger or actual injury suffered by the child. See Boyd, 727 S.W.2d at 533. Conduct that jeopardizes a child's physical or emotional well-being provides sufficient proof. Id. By exposing his children to the elements all day during winter and summer, leaving them hungry and dehydrated and in diapers for hours on end, Father endangered his children. See In re A.N., No. 02-14-00206-CV, 2014 WL 5791573 at *18 (Tex. App.—Fort Worth 2014, no pet.) (proof of endangering conduct by father included proof of his continued homelessness and having the children sleep on pallets behind a bar and panhandle along the highway in the summer); In re J.L.B., 349 S.W.3d 836, 847-48 (Tex. App.—Texarkana 2011, no pet.) (evidence of parent's illegal drug use and panhandling trips with the children supported proof of danger under subsection E). The trial court was entitled to disbelieve Father's self-serving testimony that panhandling was not endangering his children's physical and emotional well-being. See In re S.R., 452 S.W.3d at 365.
In addition to this evidence Father admitted he did not have a job or a way to earn income other than panhandling. Father did not have a stable home and slept outside most nights.
We conclude the evidence presented with respect to Father's drug use, lack of employment or housing, and continued use of the children to panhandle at a busy intersection without adequately providing for their needs demonstrates a deliberate course of conduct from which a reasonable trier of fact could have found that Father endangered the children's emotional and physical well-being. Considered in the light most favorable to the trial court's finding, the evidence is legally sufficient to support the trial court's determination that termination of Father's parental rights was justified under Family Code section 161.001(b)(1)(E). Further, in view of the entire record, we conclude the disputed evidence is not so significant as to prevent the trial court from forming a firm belief or conviction that termination was warranted under section 161.001(b)(1)(E). Accordingly, we conclude the evidence is legally and factually sufficient to support the 161.001(b)(1)(E) finding.
Having concluded the evidence is legally and factually sufficient to support the trial court's finding under subsection E, we need not review the sufficiency of the evidence to support the findings under subsections D, N, or O. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (only one predicate finding under section 161.001 is necessary to support a judgment of termination when the trial court also finds that termination is in the child's best interest). We overrule Father's second issue.
Mother concedes that the evidence is sufficient to support the predicate termination finding under section 161.001(b)(1)(O). An unchallenged fact finding is binding on us "unless the contrary is established as a matter of law, or if there is no evidence to support the finding." McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); see In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (unchallenged findings of fact supported termination under section 161.001(1)(O) because record supported those findings).
We have reviewed the record and conclude that the record supports the unchallenged finding. The evidence is undisputed that Mother did not complete the requirements of her service plan. We conclude the evidence is legally and factually sufficient to support the trial court's determination that termination of Mother's parental rights was justified under section 161.001(b)(1)(O) of the Family Code. See In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.
E. Best Interest of the Children
In his fifth issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's finding that termination is in the best interest of the children. In her sole issue on appeal, Mother challenges the factual sufficiency of the evidence to support the best-interest finding.
The factors the trier of fact may use to determine the best interest of the child include: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons seeking custody; (5) the programs available to assist those persons seeking custody in promoting the best interest of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate; and (9) any excuse for the parents' acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to consider in evaluating parents' willingness and ability to provide the child with a safe environment).
Courts apply a strong presumption that the best interest of the children is served by keeping the children with their natural parents, and the burden is on the Department to rebut that presumption. In re D.R.A., 374 S.W.3d at 531. Prompt and permanent placement in a safe environment also is presumed to be in the children's best interest. Tex. Fam. Code Ann. § 263.307(a).
Multiple factors support the trial court's finding that termination of both parents' rights is in the children's best interest.
1. Desires of the children
At the time of trial Kirk was eight years old, Kyle was six years old, and Kevin was five years old. They had been living with the foster family for a year. The record reflects that the children had bonded with Father, but that Mother did not appear to have a bond with the children. There was no evidence presented about the children's desires. When children are too young to express their desires, the fact finder may consider that the children have bonded with the foster family, are well-cared for by them, and have spent minimal time with a parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
After observing Mother during supervised visits, the caseworker expressed concern about Mother's ability to parent the children. The caseworker noted that Mother appeared more concerned with herself and the termination case than with the children. All three children have significant behavioral issues, are behind in school, and require constant attention to perform regular tasks such as dressing themselves. The foster family has diligently and patiently worked with the children and ensured that they receive special education classes in school.
2. Present and future physical and emotional needs of the children
Regarding this factor, we note that the need for permanence is a paramount consideration for the children's present and future physical and emotional needs. See In re D.R.A., 374 S.W.3d at 533. The goal of establishing a stable, permanent home for a child is a compelling government interest. Id.
The record reflects that the children's lives with their parents consisted of days either sitting or standing in a traffic median while their parents panhandled from as early as 9:00 in the morning until after dark. The children were not regularly fed or given water to drink, and were not taken to a restroom or taught to use a restroom. Father is currently homeless and Mother lives in an extended-stay hotel. Neither parent has an income outside of panhandling. Neither parent has provided for the children's past or present physical and emotional needs.
Father argues that he has visited the children at every opportunity. Although the record supports Father's statement, and a bond has been observed between Father and the children, Father has not overcome evidence that he is homeless, does not have a stable income, has not pursued psychological treatment, and maintains that his panhandling lifestyle does not endanger his children. A fact finder may infer from a parent's past inability to meet children's physical and emotional needs an inability or unwillingness to meet the children's needs in the future. See In re J.D., 436 S.W.3d at 118.
3. Present and future physical and emotional danger to the children
The same evidence of acts or omissions used to establish grounds for termination under section 161.001(b)(1) may be probative in determining the best interest of the child. In re C.H., 89 S.W.3d at 28; In re D.R.A., 374 S.W.3d at 533. Specifically, the court was permitted to consider the evidence that both parents used their children to solicit money on the street. After the children were removed and the parents knew they needed to obtain a stable income to keep their children, the parents did not find other employment. Both parents continued to insist that they were permitted to panhandle with their children because they had a document that created a charitable organization. Neither parent presented evidence that the money collected in the name of the charity was distributed to anyone other than the parents.
4. Parental abilities of those seeking custody, stability of the home or proposed placement, and plans for the children by the individuals or agency seeking custody
These factors compare the Department's plans and proposed placement of the children with the plans and home of the parents seeking to avoid termination. See In re D.R.A., 374 S.W.3d at 535. Evidence about placement plans and adoption are relevant to best interest, but the lack of evidence about definitive plans for permanent placement and adoption cannot be the dispositive factor. In re C.H., 89 S.W.3d at 28. Otherwise, determinations regarding best interest regularly would be subject to reversal on the sole ground that an adoptive family has yet to be located. Id. Instead, the inquiry is whether, on the entire record, a fact finder reasonably could form a firm conviction or belief that termination of the parents' rights would be in the children's best interest—even if the agency is unable to identify with precision the children's future home environment. Id.
Accordingly, the Department's lack of a definitive adoption plan for the children at the time of trial does not render the evidence insufficient to support the trial court's finding that termination of the parents' rights is in the children's best interest. The Department and the foster parents are working to assist the children in overcoming the behaviors developed during their formative early years in the endangering environment created by their parents. Although there was no plan at the time of trial, the trial court could have determined that keeping the children with the foster parents with an eye toward adoption was in the children's best interest as opposed to placing the children with their parents. The record further reflects that the Department is continuing to consider the maternal aunt for potential placement.
5. Acts or omissions of the parent that may indicate the existing parent-child relationship is not appropriate, and any excuse for the parent's acts or omissions
The record reflects that the parents' acts of panhandling with their children while failing to feed, properly clothe, or permit use of restroom facilities, indicate that the existing parent-child relationship is an improper one. Both parents testified at trial that they were entitled to have their children with them while panhandling. Neither parent had stable housing or plans for income other than panhandling.
Mother argues that her mental health diagnosis of bipolar disorder does not suggest that her relationship with her young sons is improper. Mental illness alone is not grounds for terminating the parent-child relationship. In re S.R., 452 S.W.3d at 363. The record reflects, however, that Mother's mental health diagnoses are not the sole ground for termination. The record further reflects that Mother was uncooperative with the Department when asked to submit to a psychiatric evaluation to confirm her self-reported diagnosis. Mother was equally uncooperative with regard to questions about whether she was taking regular medication to treat bipolar disorder. Untreated mental illness can expose a child to endangerment and is a factor the court may consider in determining whether termination is in the best interest of the children. In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
The Department requested that Mother complete psycho-social and psychiatric evaluations, but Mother refused to be seen by the professionals referred by the Department. Mother gave the caseworker an abbreviated evaluation she received from a mental health agency in Louisiana. The caseworker testified that Mother's bipolar diagnosis was self-reported and not supported by appropriate documentation. The caseworker testified that Mother had been prescribed psychotropic medication, but the Department was unable to verify if Mother was taking the medication as prescribed.
Both parents argue that they performed their services as required by the family service plan to the best of their ability. Although both parents participated in certain services, each failed to maintain stable housing or obtain stable income. Stability is important in a child's emotional and physical development. In re T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.). "Without stability, income, or a home, [a parent] is unable to provide for the child's emotional and physical needs." In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.).
6. Other factors
Father argues that the Department has not adequately explored the possibility of relative placement in Arkansas. Father points out that the investigator notes in her affidavit that she is aware of maternal relatives in Arkansas who are willing to be considered for placement.
Father first contends that section 264.752 of the Texas Family Code requires the Department to place children with relatives or other designated caregivers to promote continuity and stability for children. See Tex. Fam. Code Ann. § 264.752 (West Supp. 2017). In enabling the Department to give preference to a relative of the child if placement with the noncustodial parent is inappropriate, the trial court has broad discretion in determining the best interest of the child. See In re S.P., 168 S.W.3d 197, 211 (Tex. App—Dallas 2005, no pet.). The determination of where a child will be placed is a factor in determining the child's best interest, but the fact that placement will be with non-relatives is not a bar to termination. In re A.L., 389 S.W.3d 896, 902 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The fact that the Department has not yet considered relatives in Arkansas does not bear on whether it is in the children's best interest to terminate their parents' rights.
Viewing the evidence in the light most favorable to the judgment for our legal-sufficiency analysis and all of the evidence equally for our factual-sufficiency analysis, we conclude that a reasonable fact finder could have formed a firm belief or conviction that termination of the parents' rights was in the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). We overrule Father's fifth issue and Mother's sole issue.
III. CONCLUSION
The evidence is legally and factually sufficient to support the predicate termination finding under subsection E as to Father and subsection O as to Mother. Based on the evidence presented, the trial court reasonably could have formed a firm belief or conviction that terminating the parents' parental rights was in the children's best interest so that they could achieve permanency through adoption. See In re M.G.D., 108 S.W.3d 508, 513-14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
We affirm the decrees terminating Mother and Father's parental rights and naming the Department managing conservator.
/s/ Marc W. Brown
Justice Panel consists of Justices Busby, Brown, and Jewell.