Summary
holding subsection (E) termination justified by mother's repeated leaving of two-week old and eight-year old in care of fourteen-year old, mother's testing positive for cocaine after vehicle accident that injured child, mother refusing to participate in family-service plan, and drug use after removal
Summary of this case from In re D.D.M.Opinion
NO. 01-16-00699-CV NO. 01-16-00702-CV NO. 01-16-00704-CV
03-02-2017
IN THE INTEREST OF L.L.P., A Child IN THE INTEREST OF F.S. AND F.D.S., JR., Children IN THE INTEREST OF S.P. AND F.S., Children
On Appeal from the 312th District Court Harris County, Texas
Trial Court Case Nos. 2006-66208 , 2013-68347, and 2014-50056
MEMORANDUM OPINION
Following a single trial of three consolidated parental-rights termination cases, the trial court terminated the parental rights of S.P. ("Mother") to her five children, L.L.P, S.P., F.S., F.D.S., Jr., and F.S. In two issues, Mother argues that the evidence was legally and factually insufficient to support the trial court's findings supporting termination of her parental rights pursuant to Texas Family Code subsections 161.001(b)(1)(E) and 161.001(b)(2). We affirm.
The trial court also terminated the parental rights of the children's fathers, F.S., Sr.—the father of F.S., F.D.S., Jr., and F.S.—and R.P.—the father of L.L.P. and S.P. Neither father is a party to this appeal. In a separate cause, the trial court also issued an order concerning Mother's oldest child, T.W., who was placed with an uncle. The trial court's order regarding T.W. is not before us on this appeal.
Background
Mother gave birth to L.L.P., a girl, on May 25, 2006. On October 27, 2006, the trial court signed an order adjudicating R.P. as L.L.P.'s father and ordering child support. Mother and R.P. subsequently had another girl, S.P., on May 6, 2010. Mother then gave birth to children with another man, F.S., Sr.—F.S., a girl born March 6, 2011, and F.D.S., Jr., a boy born September 21, 2012. The trial court signed an order on November 18, 2013, adjudicating F.S., Sr. as the father of these two children and ordering child support. Finally, Mother gave birth to her and F.S., Sr.'s youngest son, F.S., on August 9, 2014.
Approximately two weeks after F.S.'s birth, in August 2014, the Texas Department of Family and Protective Services ("DFPS") received a referral regarding neglectful supervision of the children. Mother left her oldest son, T.W., who was fourteen years old at the time, to care for his five younger siblings who then ranged in age from two weeks old to eight years old. While Mother was gone, a television fell on top of F.D.S., Jr., who was one year old at the time, cutting his head. T.W. called for help, and when Mother arrived back home, the police were there. She told them that she had left for just a few minutes to buy milk, but the police observed that Mother did not have milk with her and that there were three gallons of milk in her refrigerator. Mother was arrested for child endangerment, and DFPS filed motions "To Modify for Conservatorship, and for Termination in a Suit Affecting the Parent-Child Relationship," seeking to modify the trial court's October 27, 2006 order as to L.L.P and its November 18, 2013 order as to F.S. and F.D.S., Jr. DFPS also filed an original petition for conservatorship regarding S.P. and F.S. DFPS sought temporary managing conservatorship of the children and other appropriate relief.
The criminal charges against Mother were dismissed on September 3, 2014, after authorities determined that the incident with the television was an accident. However, on September 16, 2014, Mother provided hair and nail samples for drug testing, and those samples tested positive for cocaine. On October 2, 2014, the trial court granted DFPS temporary managing conservatorship over all five children.
All five children were placed with a relative—a cousin of F.S., Sr.—Sheryl James. Mother was given a family service plan that required, in part, that she maintain stable employment and housing, that she complete parenting classes, drug assessment and treatment, and anger management therapy. Mother was also required to submit to regular drug testing.
To protect the privacy of the children, we refer to the cousin by this pseudonym.
In the summer of 2015, following a visit between the children, Mother, and F.S., Sr. at a McDonalds, the father of James's children assaulted F.S., Sr. in the parking lot. The DFPS caseworker became aware of this assault, and DFPS considered removing the children from James's home. However, Mother and F.S., Sr. preferred to leave the children with James, rather than having the children placed in foster homes. DFPS required that the father of James's children move out of the home, but it allowed the children to remain with James.
A short time later, however, two of the children—L.L.P. and S.P.—were removed from James's care and placed with fictive kin of their father's. This placement also failed, and L.L.P. and S.P. were placed in a foster home. Meanwhile, Mother substantially completed her family service plan by obtaining suitable housing and completing parenting classes and drug treatment. However, except for one drug test in July 2015 taken a week after Mother completed her outpatient drug therapy, Mother's hair follicle tests continued to test positive for cocaine. When Mother again tested positive for cocaine in October 2015—after she had completed the drug treatment and therapy required in her family service plan—DFPS asked her to complete an additional thirty days of drug abuse prevention classes, but Mother refused.
L.L.P. and S.P. were placed with the mother of R.P.'s girlfriend.
By early 2016, the placement of F.S., F.D.S., Jr., and F.S. with James had likewise broken down. James informed DFPS that the father of her children had been accused of physically and sexually abusing F.D.S., Jr. Those three children were subsequently placed in a foster home. The trial for terminating the parental rights of Mother and both fathers started in late February 2016, was continued, and then resumed in April 2016.
At trial, DFPS caseworker Antoinette Washington-Clay ("Washington"), testified regarding the circumstances under which the children came into DFPS's care. She acknowledged that Mother did not have a criminal record and that she had not had any previous involvement with DFPS. She stated that DFPS had determined that the incident in which F.D.S., Jr. was hurt by the falling television was an accident and that DFPS's main concern was Mother's continued drug use.
Washington testified about the requirements of Mother's family service plan and stated that Mother had substantially complied with that plan, including completing out-patient substance abuse therapy in July 2015. Washington stated that Mother's drug test in July 2015 was negative. However, in October 2015, Mother again tested positive for cocaine ingestion. Washington testified that she spoke with Mother's therapist, who recommended another thirty days of class to address Mother's "continuing to test positive for drugs."
Washington informed Mother that she was still testing positive for drug use, and Mother denied to Washington that she used drugs. Washington testified that throughout the case Mother denied using drugs. Rather, Mother explained the presence of drugs in her system by telling Washington that "she was trying to make a hustle and she was handling it," i.e, that she was selling drugs but not ingesting them. At various times Mother also asserted that "when she went to jail someone broke into her house and might have put it in her food." She also stated that she could have been exposed through sexual relations or using Herbal Essence shampoo or "when she was walking through the neighborhood going to the store somebody out there smoking could have gotten it in her hair."
According to Washington, when she requested that Mother complete an additional thirty days of services for her drug issues, Mother responded that "[s]he wasn't taking the classes" and that "[s]he [had done] everything and she wasn't doing anything else." Washington also requested that Mother submit to additional drug tests in December 2015 and January 2016. Following the December 2015 request, Mother told Washington that "she wasn't doing anything else [DFPS] asked her to do." Washington stated that she received no response to her January 2016 request that Mother submit to a drug test. Mother did not provide any additional test samples, and she did not complete the additional thirty days of services.
Washington testified regarding the history of the children's placements and their placements at the time of trial. Washington discussed the children's previous placement with James and the problems involved with that placement, including the assault on F.S., Sr. and the harm to F.D.S., Jr. DFPS was seeking an adoptive placement for L.L.P. and S.P. as well. Washington stated that DFPS's goal was to have all five children adopted, preferably by a single placement, and by stable homes that would allow the children to visit one another in the event that a single home for all five children was not available. The children had been able to visit each other after they were moved to different foster homes.
She stated that the foster home where F.S., F.D.S., Jr., and F.S. were placed was a potential adoptive placement. Washington testified that the girl F.S. was in daycare in the morning and then went to school in the afternoon. F.D.S., Jr. and the boy F.S. went to daycare and had not had any health issues since being placed in their current foster home. The girl F.S. had previously been hitting others, but that had no longer been a problem in her current placement.
Washington testified that L.L.P. and S.P. were doing "pretty good" in their placement where they had been for the previous two months at the time of trial. L.L.P. was "adjusting well," her grades had improved, and she was passing her classes. She had had perfect attendance and no behavior issues, which was a departure from the problems she had had while she lived in her previous placements with James and then with her father's fictive kin. S.P. had done fine in all of her placements, although Washington testified that "she's more outgoing now versus in the past."
Washington stated that Mother and the family of one of the fathers had provided some names of potential relative placements, but the people suggested by Mother had criminal histories that made them unsuitable as caregivers for the children. Regarding the desires of the children, Washington testified that the three youngest children—F.S., F.D.S., Jr., and F.S.—were too young to be able to decide whether they wanted Mother's rights terminated. None of the children had expressed to her a desire to have Mother's parental rights terminated.
Washington stated that Mother had told her that she was working, including as a dog sitter or doing childcare. However, Washington also testified that Mother had not provided any proof of employment. Mother had provided some items for the children while they were in DFPS care, including providing a birthday party, some gifts, and clothing.
Washington also stated that Mother had not visited with her children since October 2015. She testified that prior to October 2015, Mother would contact her and schedule visitation. Since October 2015, Washington had attempted to contact Mother to schedule visitation, including by going to Mother's residence as recently as the month before trial. Washington had been unsuccessful in her attempts.
Washington testified that DFPS had concerns about returning any of the children to Mother because of her "inconsistency to comply with random drug tests and her continuing to test positive for drugs." She acknowledged that Mother had no known criminal history or prior history with DFPS and that DFPS had no evidence of any abuse or neglect of the children by Mother. Washington stated that Mother's interactions with the children during visits was appropriate, that she appeared to love her children, and that the children were bonded to her.
Latarsha Basey, Mother's sister, testified at trial. Mother provided Basey's name to DFPS in February 2016, between the first day of trial and the second day, which occurred in April 2016. Basey stated that she would take custody of L.L.P. and S.P. She stated that she lives in Louisiana and, at the time of trial, DFPS was in the process of completing the home study with the State of Louisiana. However, Washington testified that Basey had a history of CPS allegations filed in Texas. Regarding her criminal history, Basey herself testified that she had "something in 1995," a misdemeanor for disorderly conduct. She denied having any other criminal history or having any history with CPS. Basey testified that she worked full time, so it would be difficult for her to care for children that were not yet in school, which is why she stated that she was willing to take L.L.P. and S.P. Basey also testified that she did not want to adopt the children because "[Mother] is their mom." Basey also testified that she believed Mother had been a good parent, and she did not believe her parental rights should be terminated because "everybody makes mistakes" and "everybody deserves a second chance." However, Basey also testified that she was not aware that Mother had been testing positive for cocaine use.
Pamela Thomas, a licensed chemical dependency counselor and certified anger resolution therapist who performed an assessment and provided therapy to Mother, testified at trial that Mother successfully completed the required therapy and anger management classes in July and August 2015. Thomas testified that when she learned Mother had tested positive for cocaine use in October 2015, she recommended additional services. Thomas discussed the positive drug test and recommendation for additional services with Mother. She testified that Mother did not believe that she needed the additional services and Mother could not understand why she tested positive in October 2015. Thomas stated that Mother "was very emotional" and believed that the case worker was "trying to railroad her."
During her treatment with Thomas, Mother told Thomas that she used alcohol and that she sold cocaine. Thomas stated that Mother denied ever using cocaine. Thomas also testified that Mother made progress during her treatment, that she believed Mother was doing well when she terminated her treatment, and that Mother had represented to her that she was no longer associating with people who sold or used drugs. Mother also told Thomas that she wanted her kids back and that she wanted "[t]o be the mother she is supposed to be." Thomas believed that Mother had made progress based on the facts that Mother got a job and "touched base with [her] periodically." Thomas also testified that it would give her cause for concern if Mother had relapsed and then refused to comply with further treatment recommendations.
The Child Advocates volunteer, Amanda Gonzalez, also testified. She stated that all five children were doing very well in their current placements. She believed that termination of Mother's parental rights was in the children's best interest because of Mother's continued positive drug tests and refusal to complete the additional counseling requested by DFPS. She also testified that Mother's first drug test, which was taken just a few weeks after the youngest child's birth, revealed a relatively high amount of cocaine in her system. Gonzalez also had concerns because, as far as she was aware, Mother had not been able to maintain stable employment. She also testified that she was concerned about Mother's "lack of interest in trying to see the children this year." Gonzalez was also concerned about having the children returned to Mother's care since T.W. had been removed to live with his uncle. She stated, "[T.W.] helped out a lot with the children," and it "worrie[d] [her] if he [was] not there." She was concerned that if he was gone, the children might not have "correct" supervision. When asked whether she would be opposed to the trial court allowing everyone more time to "explore relative placement and to allow the mother to continue working her services," Gonzalez stated, "I feel we have had plenty of time for the mother to make changes and for us to look for family placement, which have all failed over the last year, and some very badly where children have been injured." Gonzalez testified that she did not have any documentation of any prior abuse or neglect of these children by Mother "except for what [T.W.] told me." However, because it constituted hearsay testimony, Gonzalez did not elaborate on what T.W. had said.
Mother testified that she was arrested after the television fell on F.D.S., Jr., but that the charges against her were later dismissed. She also acknowledged that she tested positive for cocaine. However, Mother denied using cocaine and explained the positive result by testifying, "Maybe I touched something or money or handshake." DFPS also questioned Mother regarding a representation that Mother made in court in a July 23, 2015 hearing, when she testified that she tested positive for cocaine because she sold drugs. Mother responded, "I mean, I was out there standing with my homeboys. I was standing there." Mother also acknowledged that at one point she had been selling small amounts of cocaine, "just enough to get by."
Mother testified at trial that she stopped selling drugs in September 2014, when she was arrested following the accident with F.D.S., Jr. Mother testified that she did not understand how she could have tested positive for cocaine as recently as October 2015.
Mother testified that she worked at Mercy Health Care and had been working there since February 2016. She stated that her previous job was babysitting for the county, but after 2014 they told her she could not babysit anymore because of her DPFS case. Mother testified that she saw F.S., Sr. around the neighborhood but that they were no longer romantically involved. Mother also testified that she had changed phone numbers five to seven times during the pendency of her DFPS case, that she had lost her phone earlier in 2016 and got a new number, and that she did not provide the DFPS caseworker with her new numbers on a regular basis. Mother testified that she did not receive any communication from the DFPS caseworker in the months leading up to the trial.
Mother testified that she visited with the children at James's house, including specifically in December 2015. She testified that she would spend the weekend at the house and that James would leave her alone with the children. Mother testified in one instance that she did not believe DFPS had placed any restrictions on the amount of time or times of day that she could visit with her children at their placement. However, she contradicted this testimony, stating that she was aware her visits were supposed to be supervised and she was aware she did not have permission from DFPS for overnight visits with the children, but she "didn't think there was anything wrong with it" and did not think she needed to discuss it with her DFPS caseworker. Mother also testified that F.S., Sr. would visit the children at James's house with her. Both Mother's and F.S., Sr.'s testimony at trial indicated that they were aware that James's partner had been at the home when they visited, in spite of the fact that DFPS had required that the partner leave the home following his assault of F.S., Sr. at the McDonalds.
Mother stated that her visits with F.S., F.D.S., Jr., and F.S. at James's house continued until "we had a visit at the office and me and [James] had an altercation." She stated that she could not remember exactly when the altercation occurred, but she thought it happened in February 2016, and they had fought "about some income tax money. Everyone came at me and said I filed taxes that had not been filed this year." Mother stated that James had accused her of filing income taxes on the three children that were placed in James's custody. Following that episode, James no longer allowed Mother to visit the children in her home.
Mother also testified that she was not allowed to visit the home where her other two children, L.L.P. and S.P., had been placed in the fall of 2015. She acknowledged that she did not see those two girls from October 2015 until February 2016 because she and the caregiver "got off on the wrong foot." However, she testified that she saw L.L.P. and S.P. in February and March 2016 by making arrangement directly with their caregivers. Mother testified that she did not work with the DFPS caseworker because she believed Washington was "unfair," and she asked to be moved to a new caseworker.
Mother acknowledged that she told Washington that she would not complete any additional substance abuse classes. However, she also testified that she made two appointments to follow up on that recommendation, but she missed both appointments because she was working. Mother also stated that Washington never asked her to take any additional drug tests after the positive result in October 2015.
When asked what she had done to remedy the dangers that may have existed in her home at the time the children were removed, Mother responded, "I removed that TV and moved all those TV out of my home. I don't have but one TV in my bedroom. I don't hang out with those friends anymore. . . . I did everything [DFPS] asked through the parenting classes, through the anger management, through the drug assessment, through individual counseling."
Mother testified that, prior to the children coming into DFPS's care, T.W. and L.L.P. were in school and her four younger children would stay with R.P.'s mother during the day. Mother testified that she believed R.P.'s mother had mental health issues, including bipolar disorder and schizophrenia. DFPS determined that R.P.'s mother had depression and other mental health issues that raised concerns about her ability to be a successful caregiver for the children. Mother acknowledged that while R.P.'s mother watched her children, she would "hang out with [her] homeboys and sell drugs." She specifically admitted that she sold drugs in July and August 2014.
At trial, DFPS also presented evidence that both R.P. and F.S., Sr. had extensive criminal backgrounds, including assaults or threats to Mother and to other family members. However, Mother herself did not have a criminal history.
DFPS further presented evidence of the results of numerous drug tests taken by Mother. Bruce Jefferies, the custodian of records at National Screening Center testified that Mother submitted samples for multiple tests. He stated that Mother gave a sample on September 16, 2014, that her urine sample was clean, but that her hair sample was positive for cocaine use within the previous ninety days. Jefferies testified that the results showed the presence of metabolites, which proves that the cocaine had been ingested, and he also testified that the only ways for someone to test positive as Mother did would be to ingest it or handle "a mass amount daily," such a "being a drug dealer or supplier." Jefferies stated that Mother's test results from this month demonstrated that "she did it more than one time but she does not do it every day."
Mother had similar results in March 19, 2015, when her urine test was negative, but her hair tested positive for cocaine. Jefferies testified that this test demonstrated a "low reading," again indicating "[m]ore than one time use but not every day, for sure." He also stated that if Mother had quit using cocaine after the September 2014 test, it would have been gone by March 2015. He acknowledged that Mother's July 24, 2015 urine and hair test were both negative. However, her hair test in October 2015 was, again, positive.
The record also demonstrated that Texas Alcohol and Drug Testing conducted drug testing on Mother. Her urine tests were all negative, but she had a hair test from that organization on May 21, 2015, that was positive for cocaine ingestion.
On cross-examination Jefferies acknowledged that all of Mother's urine tests were negative. However, he also testified that it was not out of the ordinary to see positive hair results with negative urine results, and he explained that the negative urine test did not negate the positive hair test.
Sufficiency of the Evidence
In two issues, Mother challenges the sufficiency of the evidence supporting the trial court's determinations that termination of her parental rights was proper under Family Code subsection 161.001(b)(1)(E) and that, pursuant to section 161.001(b)(2), termination of her parental rights was in the children's best interest.
A. Standard of Review
In a case to terminate parental rights brought by DFPS under section 161.001, DFPS must establish, by clear and convincing evidence, (1) that the parent committed one or more of the enumerated acts or omissions justifying termination and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b) (Vernon Supp. 2015); In re C.H., 89 S.W.3d 17, 23 (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 ANN. § 101.007 (Vernon 2014); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009).
In conducting a legal-sufficiency review in a parental-rights-termination case brought by DFPS under section 161.001, we must look at the entire record to determine whether the evidence, viewed in the light most favorable to the finding, is such that a reasonable factfinder could have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. See In re J.O.A., 283 S.W.3d at 344 (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We "must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so," and we "should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible." Id.; Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
In conducting a factual-sufficiency review, we view all of the evidence, including disputed or conflicting evidence. See In re J.O.A., 283 S.W.3d at 345. We should consider whether the disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. The evidence is factually insufficient only 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" regarding the finding under review. In re J.O.A., 283 S.W.3d at 345 (quoting In re J.F.C., 96 S.W.3d at 266).
DFPS must establish both elements—that the parent committed one of the acts or omissions enumerated in section 161.001(b)(1) and that termination of parental rights is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b); In re C.H., 89 S.W.3d at 23. Termination may not be solely based on the best interest of the child as determined by the trier of fact. In re A.B., 437 S.W.3d 498, 505 (Tex. 2014) (citing Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
B. Findings Pursuant to Section 161.001(b)(1)(E)
Subsection 161.001(b)(1)(E) provides that a parent's rights can be terminated when she 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). The parent's conduct must cause the endangerment, and the endangerment must be the result of a voluntary, deliberate, and conscious course of conduct by the parent rather than a single act or omission. In re K.P., 498 S.W.3d 157, 171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); Jordan, 325 S.W.3d at 723. "'To endanger' means to expose a child to loss or injury or to jeopardize a child's emotional or physical health." Jordan, 325 S.W.3d at 723; see also In re K.P., 498 S.W.3d at 171 (citing Boyd, 727 S.W.2d at 533, and In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)). A child is endangered when the environment creates a potential for danger that the parent disregards. Jordan, 325 S.W.3d at 721; In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.); In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
"'[E]ndanger' means more than a threat of metaphysical injury or [the] potential ill effects of a less-than-ideal family environment, but that endangering conduct need not be directed at the child," and it is not necessary that the child actually suffer injury. In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012) (citing Boyd, 727 S.W.2d at 533); see also In re J.O.A., 283 S.W.3d at 345 (holding that endangering conduct is not limited to actions directed toward child); Jordan, 325 S.W.3d at 723 (holding that danger to child may be established even if conduct is not directed at child and child suffers no actual injury). "[A] parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct," and courts may look to evidence of parental conduct both before and after a child's birth and before and after removal from the home to determine whether termination is appropriate. In re J.O.A., 283 S.W.3d at 345 (citing In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied)); In re K.P., 498 S.W.3d at 171-72; see Walker v. Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 616 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (explaining that relevant conduct may occur either before or after child's removal from home).
Here, DFPS presented evidence that Mother left her five young children, at the time ranging in age from two weeks old to eight years old, in the care of their fourteen year old brother. An accident occurred in which one child, F.D.S., Jr., was injured. DFPS subsequently learned that Mother tested positive for cocaine ingestion. Mother admitted that she sold cocaine on occasion, and she completed services required by DFPS and the trial court. Despite completing drug treatment in July 2015, Mother again tested positive for cocaine in October 2015 and then refused to cooperate any further with DFPS, telling Washington that "[s]he wasn't taking the classes" and that "[s]he [had done] everything and she wasn't doing anything else." Mother refused to acknowledge that she was abusing cocaine even when faced with the positive test results, explaining the presence of drugs in her system by telling Washington that "she was trying to make a hustle and she was handling it," i.e, that she was selling drugs but not ingesting them.
The evidence also demonstrated that Mother knowingly allowed the children to associate with people who engaged in violent or illegal conduct. The record demonstrated that both R.P. and F.S., Sr. had extensive criminal backgrounds, including assaults or threats to Mother and to other family members. Mother visited the children in James's home under conditions not approved by DFPS. The record also demonstrated that Mother knew that the father of James's children—who had assaulted F.S., Sr. following a visitation with the children at a McDonalds in the summer of 2015, who DFPS had required to leave James's house if the children were to remain in James's care, and who was eventually accused of assaulting F.D.S., Jr.—was still staying in the house with James at least occasionally. In spite of her knowledge, Mother failed to report James's partner's presence around her children.
Furthermore, although Gonzalez did not provide detailed testimony on the matter, and although she acknowledged that she did not have any evidence of abuse or neglect by Mother other than what she heard from T.W., she did state that "[T.W.] helped out a lot with the children" prior to their removal from Mother's care. Gonzalez was worried about returning the children to Mother's care if T.W. would not be there to provide supervision. And Mother's own testimony indicated that she had had altercations or disagreements with multiple people, including James and one of the caregivers for L.L.P. and S.P. Mother testified that these poor relationships prevented her from being able to see her children, and she testified that she did not make arrangements to see the children through her DFPS caseworker, Washington, because Washington was "unfair" and was "railroading" her.
Accordingly, viewing the entire record in the light most favorable to the trial court's finding, we conclude that the evidence of Mother's continued drug use, her refusal to participate appropriately in treatment, and her inability to act to protect her children supports a firm belief or conviction that Mother "engaged in conduct or knowingly placed the child[ren] with persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the child[ren]." See TEX. FAM. CODE ANN. § 161.001(b)(1)(E); In re J.O.A., 283 S.W.2d at 344; In re K.P., 498 S.W.3d at 171-72.
Mother argues that the evidence is insufficient to demonstrate that she engaged in conduct endangering her children's well-being because she testified that she was only selling small amounts of cocaine and she testified that she stopped selling cocaine in 2014 after F.D.S., Jr.'s accident. Mother argues that, although she made mistakes, none of her mistakes actually endangered her children's physical or emotional well-being or diminished the bond between her and the children.
However, Mother's testimony that she was no longer involved with drugs after 2014 was contradicted by the results of her drug tests, which, according to Jefferies, demonstrated that she continued ingesting the drugs into the fall of 2015. Furthermore, Mother had a positive drug test and then refused to complete additional tests after she had agreed to remain drug free in her family service plan and after completing outpatient drug treatment. See In re K.P., 498 S.W.3d at 171-72 (repeated use of drugs may constitute endangering conduct, even without direct evidence that parent's drug use injured children, because it exposes children to possibility that parent may be impaired or imprisoned); In re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.) ("A parent's engaging in illegal drug activity after agreeing not to do so is clear and convincing proof of voluntary, deliberate, and conscious conduct that endangered the well-being of her children.").
Mother also points to the facts that she has no criminal history. However, a criminal history is not required to support a finding of endangerment. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E); see also In re E.N.C., 384 S.W.3d at 803 ("'[E]ndanger' means more than a threat of metaphysical injury or [the] potential ill effects of a less-than-ideal family environment, but that endangering conduct need not be directed at the child," and it is not necessary that child actually suffer injury); Jordan, 325 S.W.3d at 721 (holding that child is endangered when environment creates potential for danger that parent disregards).
Thus, even considering the conflicting evidence, we cannot conclude that the contrary evidence is so significant that the trial court, acting as the factfinder, could not reasonably have formed a firm belief or conviction that Mother engaged in conduct endangering her children's well-being. See In re J.O.A., 283 S.W.3d at 345.
We overrule Mother's first issue.
C. Findings on Children's Best Interest
In her second issue, Mother argues that the evidence was legally and factually insufficient to support the trial court's conclusion that termination of her parental rights was in the children's best interest.
There is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam); In re K.P., 498 S.W.3d at 172. Prompt and permanent placement of the child in a safe environment is also presumed to be in the child's best interest. TEX. FAM. CODE ANN. § 263.307(a) (Vernon Supp. 2015). The Family Code and the Texas Supreme Court have both enumerated factors to be considered in determining a child's best interest, including, among others: the child's age and physical and mental vulnerabilities; the frequency and nature of out-of-home placement; the magnitude, frequency and circumstances of harm to the child, including current and future danger to the child; whether there is a history of substance abuse by the child's family; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; the child's family's demonstration of adequate parenting skills, including providing the child and other children under the family's care with minimally adequate health and nutritional care, guidance and supervision, and a safe physical home environment; the stability of the home or proposed placement; and the parent's acts or omissions indicating an improper parent-child relationship and any excuses for the acts or omissions. See id. § 263.307(b); In re R.R., 209 S.W.3d at 116; Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
This is not an exhaustive list, and a court need not have evidence on every element listed in order to make a valid finding as to the child's best interest. See In re C.H., 89 S.W.3d at 27. The evidence supporting the statutory grounds for termination may also be used to support a finding that the best interest of the child warrants termination of the parent-child relationship. Id. at 28; In re N.R.T., 338 S.W. 3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). Furthermore, the best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence. See In re N.R.T., 338 S.W.3d at 677.
Here, multiple factors support the trial court's finding that termination of Mother's parental rights was in the children's best interest. DFPS presented evidence regarding Mother's drug abuse and endangerment of the children, as discussed above. See In re C.H., 89 S.W.3d at 27 (evidence supporting statutory grounds for termination may also be used to support a finding that the best interest of child warrants termination of parent-child relationship).
DFPS presented evidence that, despite successfully completing an out-patient drug treatment program in July 2015, Mother subsequently tested positive again for cocaine in October 2015. Mother then refused to cooperate with further drug testing, and she refused to complete the thirty days of additional drug classes recommended by Thomas and requested by DFPS. Mother also failed to cooperate with other people involved in the case, and she engaged in altercations or disputes with some of the children's caregivers. Mother herself admitted at trial that she had sold drugs, but she refused to acknowledge that she had a substance abuse problem, providing no credible reason for the presence of cocaine in her hair follicle tests. See TEX. FAM. CODE ANN. § 263.307(b) (providing that, in determining best interest of child, courts should consider circumstances of harm, history of substance abuse, willingness to complete services, demonstration of parenting skills, and any excuse for prior acts or omissions); In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (holding that finding that parent failed to complete court-ordered services can support best interest finding); Holley, 544 S.W.2d at 371-72 (providing that, in determining best interest of child, courts should examine stability of home and proposed placement and parent's acts or omissions indicating improper relationship).
The record indicated that the children, who were between the ages of twenty months old and almost ten years old at the time of trial, were too young to care for themselves and needed stable, attentive caregivers. Although Mother argues that she did not have a criminal background, she admitted to selling drugs. Her own testimony and that of Gonzalez also indicated that other people, such as R.P.'s mother and T.W., provided supervision for her five young children while she would "hangout with [her] homeboys and sell drugs." However, at the time of trial, the record reflected that T.W. no longer lived with Mother, as he had been placed with his uncle. And Mother herself acknowledged that R.P.'s mother had mental health issues—issues that DFPS determined precluded her from being a proper caregiver for the children. Thus, the children's ages and physical and mental vulnerabilities weigh in favor of termination of Mother's parental rights. See TEX. FAM. CODE ANN. § 263.307(b); In re R.R., 209 S.W.3d at 116.
Although the children's initial placements with James and with R.P.'s fictive kin were unsuccessful, all of the children had been moved to new placements as of the time of trial. Both Washington and Gonzalez testified that the children's foster homes as of the time of trial were meeting all of the children's needs. Gonzalez testified that the children were thriving in their current placements. Washington testified that the foster parents for F.S., F.D.S., Jr., and F.S. were interested in adopting them, and that DFPS was likewise seeking an adoptive home for L.L.P. and S.P. Both Washington and Gonzalez testified that they believed placement of the children in adoptive homes was in their best interest.
Viewing the entire record in the light most favorable to the trial court's finding, the evidence supports a firm belief or conviction that termination of Mother's parental rights was in the children's best interest. See In re J.O.A., 283 S.W.3d at 344; see also TEX. FAM. CODE ANN. § 263.307(b) (setting out non-exclusive factors to consider in making best-interest determination).
Mother argues that the evidence was insufficient to support the trial court's finding that termination of her parental rights was in the children's best interest because she successfully completed all of her services. However, Mother did not dispute at trial that she refused to complete the additional thirty days of drug abuse classes. Although she was employed at the time of trial and had suitable housing, she had only been employed for two months as of the time of trial. Thus, the record contains conflicting evidence regarding Mother's stability, and the trial court, as the finder of fact, was entitled to resolve this conflict in favor of its finding that termination of her parental rights was in the children's best interest. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (holding that in factual sufficiency review, we must give due deference to factfinder's findings and must avoid substituting our judgment for that of factfinder).
Mother also argues that the evidence was insufficient in light of evidence that she was able to "overcome" her problems with cocaine and that she made "drastic changes to her life, such as obtaining new work and cutting ties with unhealthy relationships." However, Mother's testimony on this topic was undermined by her repeated positive drug test results, by her refusal to acknowledge that she had a drug problem, and by her refusal to cooperate with DFPS regarding additional drug treatment.
Viewing all of the evidence, as we must, we conclude that any disputed evidence was not so significant that a factfinder could not reasonably have formed a firm belief or conviction that termination of Mother's parental rights was in the children's best interest. See In re J.O.A., 283 S.W.3d at 344. Thus, we conclude that the evidence was both legally and factually sufficient to support the trial court's finding that termination was in the children's best interest. See id. at 344-45.
We overrule Mother's second issue.
Mother also asserts, in a single phrase, that DFPS "failed to prove that there was a material and substantial change," referring, apparently, to the trial court's previous decrees in 2006 and 2013. It does not appear that Mother presented this argument to the trial court. See TEX. R. APP. P. 33.1 (setting out general error preservation requirements). Nor has she adequately briefed this issue, because she includes no record citations, citations to authority, or other legal argument regarding this point. See TEX. R. APP. P. 38.1 (setting out briefing requirements for appellants' briefs). However, we also observe that DFPS presented evidence that, following the issuance of the 2006 and 2013 decrees establishing the paternity of three of the subject children and setting out certain child support obligations, DFPS received a referral for services based on an allegation of child endangerment and Mother demonstrated an ongoing problem with cocaine use that warranted the filing of the motions to modify in this case.
Conclusion
We affirm the judgments of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Higley, and Lloyd.