                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-19-00083-CV
                               __________________


                        IN THE INTEREST OF D.S.D.D.

__________________________________________________________________

                 On Appeal from the 1st District Court
                        Jasper County, Texas
                       Trial Cause No. 36620
__________________________________________________________________

                          MEMORANDUM OPINION

       This is an appeal from an order terminating the parental rights of D.S.

(Mother) to D.S.D.D. (Daniel).1, 2 In two issues, Mother argues that the evidence

was legally and factually insufficient for the trial court to find Mother committed a

prohibited act under section 161.001(b)(1)(D) of the Texas Family Code and


   1
      We identify minors in appeals in parental-rights termination cases by using an
alias to protect the minor’s identity and all members of the child’s family. See Tex.
R. App. P. 9.8(a), (b).
    2
      The trial court terminated the alleged Father’s rights; however, Father does not
appeal the termination.
                                           1
terminate the parent-child relationship or to show that the termination was in

Daniel’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), 161.001(b)(2)

(West 2019). We affirm the judgment of the trial court.

                                    Background

      Testimony at trial established that Mother and Daniel moved to Texas from

Mother’s hometown of Omaha, Nebraska, when Daniel was three years old. The

Department of Family and Protective Services (the Department) became involved

after it received a call from Mother, who “appeared hysterical” and stated that she

lived in a hotel room in Jasper, Texas, with her young child. Mother reported that

she and Daniel were homeless, and they both had very little to eat for the past two

days. According to Department Investigator Kecia Davis, a police officer performed

a welfare check on Mother and Daniel the same day.

      The following day, a police officer contacted the Department with another

report that Mother “fainted -- or had collapsed” while at a grocery store with Daniel.

Davis went to the grocery store and discovered that Daniel was hungry, had on a

soiled diaper, and “had no clothes . . . other than . . . a pair of shoes and shorts.”

Davis testified that no one outside the Department could take possession of Daniel

at that time, so the Department removed Daniel and placed him in foster care. Davis

testified that when she spoke to Mother later that day, Mother was very upset and

                                          2
became hysterical. Davis expressed concern over the lack of food for the child in the

hotel room where Mother and Daniel stayed. Law enforcement gave Mother food

vouchers the day before, but Davis was worried that Mother did not have anything

to feed Daniel when he became hungry again later.

      Davis testified that the Department previously investigated Mother for

neglectful supervision of Daniel. According to Davis, Mother appeared to have

mental problems and exhibited other concerning behaviors while traveling around

with her three-year-old child. The Department administratively closed its prior case,

because Mother was living at a women’s shelter and had the necessities to care for

herself and her child.

      Tiffany Porter testified that she had been the caseworker on Mother’s case for

more than a year at the time of trial and stated that she spoke to Mother “at least

three or four times a week.” While Porter was of the opinion that Mother is “a nice

person” and tries to be compliant with the Department, she was concerned that

Mother was not employed or financially independent, could not provide a stable

home environment for Daniel, and had difficulty prioritizing the safety and welfare

of Daniel. Porter explained that during the pendency of the case, Mother moved nine

times, was homeless at least twice, and had lived in a shelter and at a hotel.

According to Porter, after the Department removed Daniel, Mother told Porter via

                                         3
text message that she had decided to move back to Omaha, Nebraska, because “her

family was there,” and “she could get more help…finding a job.” This greatly

troubled Porter because Daniel was in foster care in Texas, and Mother would be

unable to have physical visits with him. The move to Nebraska demonstrated

Mother’s irrational decision-making in that Mother did not clearly consider the

effects her choices had on Daniel. Mother failed to prioritize Daniel’s needs over her

own. Porter testified that while Mother substantially completed her service plan,

including parenting classes, Mother did not effectively demonstrate her parenting

skills because she resided in another state and could not exercise her physical

visitations with Daniel anymore.

      Porter testified that Mother’s service plan required her to submit to a

psychological examination. The Department admitted a copy of the psychological

examination report into evidence. The report showed that Mother had borderline

intellectual functioning. Porter testified that although the report noted that Mother is

nice and tried to comply with the Department, the psychologist had “significant

concerns” about her reunification with Daniel. The report noted that

      mother appears to have little capacity and almost no resources to
      address problem solving/decision making for herself and her child[.]
      . . . [Mother] takes little responsibility for her child’s emotional and
      psychological state, and believes she is more of a victim in the situation.
      Her low cognition also limits her ability to appreciate all aspects of

                                           4
      appropriate childrearing, sustaining critical communal relationships,
      and having a stable, functional lifestyle.

The psychologist also found that Mother failed to adequately meet the medical,

emotional, or welfare needs of her child. The report recommended that Daniel

remain in foster care, because Mother is “unable to show that she is a socially

competent, financially independent, mature adult who is able to prioritize the welfare

and safety of her child in all areas long-term.” Porter stated that the report caused

her concern for the safety of Daniel because “after the interview with a licensed

physician, [Mother] wasn’t able to show to [the licensed physician] that she had the

mental capacity or [was] financially able to care [for] a child unless she had another

adult supervising her.”

      Porter testified that although Mother cooperated with the Department, there

were several unexplained inconsistencies in the statements or actions of Mother that

worried the Department. Porter testified that Mother told her that she worked at Wal-

Mart in Nebraska, but they cut her hours due to the government shutdown. When

Porter questioned Mother about why her hours would be cut due to the government

shutdown, Mother’s only explanation was that Nebraska is different than Texas and

the government shutdown influenced her hours.

       In another incident, Porter stated that she received pictures from an unknown

source, showing Mother “laying in a bathtub with a knife to her throat with what
                                       5
appeared to be . . . maybe fake blood[.]” When Porter questioned Mother about the

photos, Mother discounted the incident and told Porter that she posted the images on

Facebook to let people know about bullying and the harm it could cause. Porter had

to explain to Mother that her social media posts could cause Daniel hurt and concern

in the future. Porter testified that Mother’s actions again demonstrated Mother’s

failure to put Daniel’s needs above her own.

      Porter testified that due to the pictures Mother posted on social media, she

requested Mother submit to another mental health assessment. The day of the

appointment, Porter received a message that Mother had a car accident before her

appointment, and Porter did not speak to Mother for thirteen days thereafter. When

questioned about the Department’s inability to reach her, Mother told Porter that she

was hospitalized for ten days and unable to contact the Department because she was

unconscious. When Porter asked Mother to submit documentation to verify the

accident and her subsequent hospital stay, Porter claimed she threw out all

documentation regarding the accident and hospital stay while cleaning. When

pressed for further information, the phone disconnected, and Porter could not contact

Mother until Mother later called to talk to Daniel.

      Porter stated that Mother’s lack of stability always concerned her. Porter

testified that she did not believe Mother had the knowledge or skills necessary to

                                          6
care for Daniel and feared for his safety if returned to her care. Porter opined that

Mother’s “transient lifestyle” was unsafe for Daniel, and that her surroundings and

lifestyle, both before the Department intervened and during the pendency of the case,

showed that she would continue to endanger Daniel. Porter stated that Daniel thrived

in foster care, and his foster parents loved and cared for him, provided for his needs,

and wanted to adopt him.

      Mildred Adams testified as the guardian ad litem in this case. She opined that

Daniel should not be returned to his Mother’s care. According to Adams, Mother

undoubtedly loves Daniel, but she believed that Mother was mentally unstable and

demonstrated an inability to properly provide for her son. Adams stated that Mother

was incapable of caring for her son and expressed concern for the child’s safety if

returned to his Mother. According to Adams, Daniel was in a safe, appropriate, and

happy home with his foster parents, and the foster parents could provide for all his

needs if they adopted him.

      Mother testified at trial by video conference from her apartment in Nebraska.

Mother admitted that she “made a huge mistake as a mother, but I was on my way

of (sic) fixing it[,] so I could give my son a better life.” Mother denied she had a

transient lifestyle when the Department removed Daniel from her possession but

admitted that she moved several times with Daniel when he was very young,

                                          7
including to Arizona, Nevada, Nebraska, and Texas. She testified that she moved to

Texas because she wanted a “different lifestyle” and “to get away from my mother

and try to start over with life, but it did not go as I planned.” Mother admitted that

she arrived in Texas without a job and lived with a friend’s elderly grandmother until

she decided to leave the grandmother’s house “to get my own stuff.” Mother stated

that while in Texas with Daniel, she lived in “Silsbee, Beaumont, Houston, and

Jasper,” and sometimes in homeless shelters. According to Mother, it became clear

that “things in Texas weren’t going right for me with my child.” Mother stated that

she was in Texas for less than one month when the Department removed Daniel from

her possession. She testified that she lived in a hotel room in Jasper for a few days

before calling 911 because she did not have “any resources” to feed her child. Mother

stated the police tried to help her get a ticket “back home” to Nebraska.

      Mother claimed that the heat caused her to pass out when they removed Daniel

from her care at the grocery store. Mother regretted that she put her child in that

situation but told the trial court it only lasted a short while. Mother stated that if she

could not provide for her son, she had a safety net of relatives in Nebraska, including

her father and sister, who could provide support and care for Daniel. During cross

examination, Mother admitted that when she moved to Texas with Daniel, her father

was incarcerated for selling drugs, which she attempted to justify by claiming he did

                                            8
so “to hold his family together.” Because of his incarceration, her father was not able

to provide any support for her and Daniel.

      To explain the photos she posted on social media depicting herself covered in

fake blood, Mother stated that she had a history of being bullied, and she posted the

pictures to show that “you have to stop bullying.” She wanted to reach out to

“somebody that’s on the edge or the verge . . . [to] help them out because your voice

can be the voice that saves[.]” She admitted that she only took down the post after

her father told her to take it down and “to make better decisions.”

      Mother testified that since returning to Nebraska, she has remained employed

and leased an apartment. She received food stamps and paid her bills. She stated that

Daniel would “have a place to call home . . . [and] everything he needs if he was to

get back in my custody.” During the video conference call, when questioned about

why she was wearing a coat inside her apartment, Mother testified that she currently

did not have heat in her apartment but that she had submitted a repair request.

      After the bench trial, the trial court terminated Mother’s parent-child

relationship with Daniel pursuant to section 161.001(b)(1)(D) and further found that

such termination was in the best interest of the child. See Tex. Fam. Code Ann. §

161.001(b)(1)(D). Mother timely appealed.



                                          9
                                Standard of Review

      In parental rights termination cases, the standard of proof required at trial is

clear and convincing evidence. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014) (citing

In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)). The no-evidence standard typically

employed in a legal sufficiency review does not adequately protect the parent’s

constitutional interests in a termination case. In re M.N.G., 147 S.W.3d 521, 535

(Tex. App.—Fort Worth 2004, pet. denied) (citing In re J.F.C., 96 S.W.3d 256, 264

(Tex. 2002)). Legal sufficiency in a parental termination case is not satisfied by the

traditional standard of anything more than a scintilla of evidence. In re J.F.C., 96

S.W.3d at 264–65. A legal sufficiency review in parental termination cases requires

us to determine “whether the evidence is such that a factfinder could reasonably form

a firm belief or conviction” that the grounds for termination were proven. Id. at 265–

66. We examine all of the evidence in the light most favorable to the finding to

ascertain whether a reasonable trier of fact could have formed a firm belief its finding

was true. See id. at 266; In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We assume

disputed facts were resolved by the factfinder in favor of its finding and disregard

evidence a reasonable factfinder could have disbelieved. In re J.O.A., 283 S.W.3d at

344; In re J.F.C., 96 S.W.3d at 266. If, after review, we determine no reasonable

factfinder could form a firm belief or conviction that the matter that must be proven

                                          10
is true, we must conclude the evidence is legally insufficient. In re J.O.A., 283

S.W.3d at 344–45; In re J.F.C., 96 S.W.3d at 266.

      In a factual sufficiency review, “a court of appeals must give due

consideration to evidence that the factfinder could reasonably have found to be clear

and convincing.” In re J.F.C., 96 S.W.3d at 266. In examining factual sufficiency,

we will consider whether disputed evidence is such that a reasonable factfinder could

not have resolved the disputed evidence in favor of its finding. Id. The evidence is

factually insufficient, 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[.]” Id.

                       Termination under 161.001(b)(1)(D)

      In her first issue, Mother argues that the evidence was not legally or factually

sufficient to support the trial court’s judgment to terminate the parent-child

relationship under section 161.001(b)(1)(D). See Tex. Fam. Code Ann. §

161.001(b)(1)(D). To involuntarily terminate a parent’s rights, a trial court is

required to make two findings. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). First, a

parent must have committed a prohibited act under section 161.001 of the Texas

Family Code, and second, termination of the parent’s rights must be in the child’s

best interest. Id.; see also Tex. Fam. Code Ann. § 161.001(b)(1), (2) (listing

                                          11
necessary requirements to terminate parent’s parental rights). To support a

termination, only one predicate finding under section 161.001(b) is necessary when

there is also a finding by the trial court that termination is in the child’s best interest.

In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (citations omitted).

       To terminate based on section 161.001(b)(1)(D), the Department must show

that Mother “knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endanger[ed] the physical or emotional well-being

of the child.” Id. “‘To endanger’ means to expose a child to loss or injury or to

jeopardize a child’s emotional or physical health.” In re S.R., 452 S.W.3d 351, 360

(Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing In re M.C., 917 S.W.2d

268, 269 (Tex. 1996); Walker v. Tex. Dep’t of Family & Protective Servs., 312

S.W.3d 608, 616–17 (Tex. App.—Houston [1st Dist.] 2009, pet. denied.)).

Endangerment under subsection D may be established by evidence regarding the

child’s environment. In re A.A.L.A., No. 14-15-00265-CV, 2015 WL 5437100, at *5

(Tex. App.—Houston [14th Dist.] Sept. 15, 2015, no pet.) (mem. op.); In re A.S.,

261 S.W.3d 76, 83 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). “Parental

rights may be terminated under subsection D based on a single act or omission.” In

re J.E.M.M., 532 S.W.3d 874, 881 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

(citation omitted). We review the parent’s conduct before the child was removed by

                                            12
the Department. See In re J.R., 171 S.W.3d 558, 570 (Tex. App.—Houston [14th

Dist.] 2005, no pet.). “[S]ubsection D is not a basis for termination of parental rights

if the parent was unaware of the endangering environment.” In re J.E.M.M., 532

S.W.3d at 881 (internal citations omitted). Therefore, we must determine if there

was evidence of the endangerment and if Mother was aware of the endangering

environment. See id.

        In this case, testimony at trial established that Mother lived in at least four

different states, in hotels, women’s shelters, and was sometimes homeless, all while

Daniel was younger than three years old. When Mother decided to move to Texas,

she moved without a job or a permanent residence and lived a short while at the

house of a friend’s elderly relative. 3 After Mother left that residence, she proceeded

to move with her child to various cities and homeless shelters around Texas and

continued to be unemployed. During this time, testimony established that the

Department investigated Mother due to her mental health and housing instability.

Ultimately, Mother ended up in a hotel in Jasper with very little food for her child,

relying on food vouchers provided by the police after a welfare call. Department

caseworker Davis testified that when they removed Daniel, Mother’s inability to




   3
       Evidence indicated she met the friend through social media.
                                           13
feed her child without vouchers and failure to anticipate the child’s future needs

“concerned” her.

      Department caseworker Porter stated that while Mother complied with the

Department and its service plan, her erratic behavior and instability would continue

to endanger Daniel if they returned him to her care. Porter testified that Mother

demonstrated a refusal to put Daniel’s needs above her own.

      Mother admitted at trial that she moved several times with Daniel but denied

having a “transient lifestyle.” She simply believed that she took vacations, although

evidence at trial established that she lived in the places long enough to obtain

identification cards. Mother offered excuses for her decision to move to Texas with

Daniel without a job or permanent residence. Mother admitted that she made a poor

decision regarding her child’s health while in the Jasper hotel room. She attempted

to explain that it was only temporary, despite her inability to buy food or afford

stable housing and no real plan to do so. See In re N.E.S., No. 10-09-00282-CV,

2010 WL 3911418, at *1–2 (Tex. App.—Waco Oct. 6, 2010, no pet.) (mem. op.)

(holding a termination under subsection D was legally and factually sufficient

because evidence showed that Mother “created ‘an unstable situation’…and placed

[the child] ‘in an unsafe condition’” when she “lived in at least eight different

locations from the time of his birth until he was removed from her care when he was

                                         14
almost ten months old”). Although Mother testified that at the time of trial she had

housing, a job, and stable family support, “even strong evidence of improvement

cannot conclusively negate past history.” See In re P.R.W., 493 S.W.3d 738, 744

(Tex. App.—Corpus Christi 2016, no pet.) (mem. op.) (citations omitted). The

evidence was legally and factually sufficient to show that Mother “knowingly placed

or knowingly allowed” Daniel to remain in an environment that would endanger his

“physical or emotional well-being.” See Tex. Fam. Code. Ann. § 161.001(b)(1)(D).

Therefore, we hold that there was clear and convincing evidence to terminate her

parent-child relationship under 161.001(b)(1)(D). We overrule Mother’s first issue.

                             Best Interest of the Child

      In her second issue, Mother argues that the Department failed to present

“legally and factually sufficient evidence” that termination of the parent-child

relationship was in Daniel’s best interest. “[T]here is a strong presumption that the

best interest of a child is served by keeping the child with a parent.” In re R.R., 209

S.W.3d 112, 116 (Tex. 2006); see also Tex. Fam. Code Ann. § 153.131(b) (West

2014). In reviewing whether termination is in a child’s best interest, we consider a

non-exhaustive list of factors: (1) desires of the child; (2) emotional and physical

needs of the child now and in the future; (3) emotional and physical danger to the

child now and in the future; (4) parental abilities of the individuals seeking custody;

                                          15
(5) programs available to assist these individuals to promote the best interest of the

child; (6) plans for the child by these individuals or by the agency seeking custody;

(7) stability of the home or proposed placement; (8) acts or omissions of the parent

which may indicate that the existing parent-child relationship is improper; and (9)

any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367,

371–72 (Tex. 1976). “[T]he prompt and permanent placement of the child in a safe

environment is also presumed to be in the child’s best interest.” In re F.A.B., No. 05-

14-01277-CV, 2015 WL 631165, at *3 (Tex. App.—Dallas 2015, pet. denied) (mem.

op.) (citing Tex. Fam. Code Ann. § 263.307(a) (West 2014)).

      The list is not exhaustive, but simply indicates considerations that have been

or could be pertinent. Holley, 544 S.W.2d at 372. However, the best-interest

determination neither requires proof of any unique set of factors nor limits proof to

any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001,

no pet.) (citing Holley, 544 S.W.2d at 371–72). There is no requirement that the

party seeking termination prove all nine factors. In re C.H., 89 S.W.3d 17, 27 (Tex.

2002). Undisputed evidence relating to one single factor may be adequate in a

particular situation to support a finding that termination is in the best interest of the

child. Yonko v. Dep’t of Family & Protective Servs., 196 S.W.3d 236, 243 (Tex.

App.—Houston [1st Dist.] 2006, no pet.). Evidence supporting the termination of

                                           16
parental rights is also probative of best interest. In re C.H., 89 S.W.3d at 28. “A

parent’s inability to provide adequate care for her children, unstable lifestyle, lack

of a home and income, lack of parenting skills, and poor judgment may be

considered when looking at the [child’s] best interest.” In re J.D., 436 S.W.3d 105,

119 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing In re C.A.J., 122 S.W.3d

at 893); see also Garza v. Tex. Dep’t of Human Servs., 794 S.W.2d 521, 525 (Tex.

App.—Corpus Christi 1990, no writ) (explaining that a parent’s lack of judgment,

parenting skills, failure to provide adequate nutrition to her children, instructing

them to disobey their foster parents, and skip school, are all factors to consider in a

parental termination); Sanchez v. Tex. Dep’t of Human Res., 581 S.W.2d 260, 265–

66 (Tex. Civ. App.—Corpus Christi 1979, no writ) (holding that the parent’s poor

prognosis regarding her ability to learn to care for her children is a factor to consider

in terminating the parent-child relationship).

      Evidence at trial established that Mother continued to make poor decisions

and failed to place Daniel’s needs above her own, even though the Department

removed him from her care. Testimony showed that Mother left Daniel in Texas and

moved back to Nebraska, making it impossible for her to exercise physical visitation,

completely interrupting any continued bonding with her child. Evidence also showed

that while Mother substantially completed the remainder of her service plan, the

                                           17
Department employees testified that her decision to move also hindered her ability

to demonstrate the parenting skills she may have developed during the completion

of her service plan.

      While Mother testified that she was living in her own apartment in Nebraska,

the apartment had no heat at the time of trial, and Mother failed to give a definitive

answer on when heat may be restored. In addition, while Mother testified that she

acquired employment in Nebraska, she raised doubt about the stability and longevity

of it by surmising it had been interrupted by the government shutdown. Mother

stated that if she could not properly care for Daniel, she had a family support system

in Nebraska to help her, including her Father, but evidence showed that the

Department did not approve her Father for placement because he was recently

incarcerated for drug violations. Despite Daniel’s removal, Mother continued to

display poor decision making and instability that would endanger Daniel if returned

to her custody. Her erratic and inconsistent statements regarding unusual and

significant events in her life, including her social media postings and her alleged

hospitalization while in Nebraska, provided continued concern to the Department

about her mental stability and the safety of her son.

      Testimony at trial showed that Daniel’s foster placement provided stability,

that he was happy and content, and his physical and emotional needs were being met

                                         18
because Daniel was meeting developmental milestones. Evidence further established

that Daniel loved his foster family and bonded with them, and his foster family

indicated they wished to adopt Daniel. We find the evidence both legally and

factually sufficient for the trial court to find by clear and convincing evidence that it

was in Daniel’s best interest to terminate the parent child relationship with Mother.

We overrule Mother’s second issue.

                                      Conclusion

      Having overruled all of Mother’s issues on appeal, we affirm the judgment of

the trial court terminating Mother’s parent-child relationship to Daniel.

      AFFIRMED.



                                                      _________________________
                                                           CHARLES KREGER
                                                                Justice

Submitted on June 4, 2019
Opinion Delivered July 11, 2019

Before Kreger, Horton and Johnson, JJ.




                                           19
