Opinion issued October 1, 2013




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-11-00791-CV
                          ———————————
                  IN THE INTEREST OF E.C.R., A Child



                 On Appeal from the 314th Judicial District
                          Harris County, Texas
                    Trial Court Case No. 2010-04599J



                MEMORANDUM OPINION ON REMAND

     The relevant factual and procedural background is set forth in two previous

opinions in this case. See In re E.C.R., 390 S.W.3d 22, 24–26 (Tex. App.—

Houston [1st Dist.] 2012), rev’d, In re E.C.R., 402 S.W.3d 239, 240–42 (Tex.

2013).   We previously held that legally insufficient evidence supported the

judgment terminating M.R.’s parental rights under section 161.001(1)(O) of the
Family Code. 1 In re E.C.R., 390 S.W.3d at 27. The Supreme Court of Texas

reversed, holding that “abuse or neglect of the child,” as used in subsection O,

“necessarily includes the risks or threats of the environment in which the child is

placed,” which in turn includes “the harm suffered or the danger faced by other

children under the parent’s care.” In re E.C.R., 402 S.W.3d at 248. The Court

remanded for consideration of an issue we did not reach—whether the evidence is

factually sufficient to support the trial court’s finding that termination of M.R.’s

parental rights to E.C.R was in E.C.R’s best interest. We conclude that it is and,

accordingly, we affirm.

                                Standard of Review

      In a factual sufficiency review, “the appellate standard for reviewing

termination findings is whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the State’s

allegations.” In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). By focusing on whether

the factfinder could form a firm conviction or belief, the appellate court maintains

the required deference for the factfinder’s role. Id. at 26. “An appellate court’s


1
      Section 161.001(1)(O) provides that parental rights may be terminated if the
      parent has “failed to comply with the provisions of a court order that specifically
      established the actions necessary for the parent to obtain the return of the child
      who has been in the permanent or temporary managing conservatorship of the
      Department of Family and Protective Services for not less than nine months as a
      result of the child’s removal from the parent under Chapter 262 for the abuse or
      neglect of the child.” TEX. FAM. CODE ANN. § 161.001(1)(O) (West Supp. 2012).
                                           2
review must not be so rigorous that the only factfindings that could withstand

review are those established beyond a reasonable doubt.” Id. We should consider

whether 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

256, 266 (Tex. 2002). “If, in light of the entire record, the disputed evidence that a

reasonable factfinder could not have credited in favor of the finding is so

significant that a factfinder could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient.” Id.

                                  Applicable Law

      In a case to terminate parental rights by DFPS under section 161.001 of the

Family Code, DFPS must establish, by clear and convincing evidence, that (1) the

parent committed one or more of the enumerated acts or omissions justifying

termination and (2) termination is in the best interest of the child. TEX. FAM. CODE

ANN. § 161.001 (West Supp. 2012).          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.” Id.

§ 101.007 (West 2008); In re J.F.C., 96 S.W.3d at 264. “Only one predicate

finding under section 161.001(1) is necessary to support a judgment of termination

when there is also a finding that termination is in the child’s best interest.” In re

A.V., 113 S.W.3d 355, 362 (Tex. 2003).

                                          3
      There is a strong presumption that the best interest of the child will be

served by preserving the parent-child relationship. In re A.A.A., 265 S.W.3d 507,

516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). “The same evidence of

acts or omissions used to establish grounds for termination under subsection

161.001(1) may be probative in determining the best interests of the child.” Id.

When reviewing whether termination of parental rights is in the child’s best

interest, we may consider, among other factors, the following: (1) the desires of the

child; (2) the emotional and physical needs of the child now and in the future;

(3) the emotional and physical danger to the child now and in the future; (4) the

parental abilities of the individual seeking custody; (5) the programs available to

assist the individual to promote the best interest of the child; (6) the plans for the

child by the individual or by the agency seeking custody; (7) the stability of the

home or proposed placement; (8) the acts or omissions of the parent that may

indicate that the existing parent-child relationship is not a proper one; and (9) any

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

371–72 (Tex. 1976). This list is not exhaustive, and there is no requirement that

DFPS prove all of the factors in order for the court to make a valid finding on the

best interest of the child. In re A.A.A., 265 S.W.3d at 517.




                                          4
                                     Analysis

      Reviewing these factors, we first consider evidence of E.C.R.’s desires.

M.R. notes that E.C.R. was under the age of two at the time of trial and thus was

unable to express his desires, and DFPS agrees that there is no evidence

concerning the child’s desires in this case. Accordingly, this factor does not weigh

in our analysis.

      Next, under the second and fourth Holley factors, we consider the evidence

of E.C.R.’s present and future emotional and physical needs, and the evidence

regarding M.R.’s ability to parent and provide for his needs. E.C.R.’s DFPS

caseworker testified that E.C.R. does not have any special needs and that his

current foster placement is meeting his physical and emotional needs. Regarding

M.R.’s ability to parent and provide for those needs, M.R. concedes that she was

unemployed at the time of trial, did not have stable housing, and had not completed

her psychiatric evaluation or the follow up recommendation from her

psychological evaluation. The record contains evidence confirming that M.R. has

a history of homelessness, is mentally unstable, and has failed to complete a

psychiatric evaluation or attend treatment. Further, the record shows that while she

was incarcerated for physically abusing her daughter, M.R. attempted suicide

twice. Throughout the pendency of this suit, M.R. remained unemployed, and she

has offered no proof of an ability to provide financial support to E.C.R. Thus, the

                                         5
evidence regarding these factors weighs in favor of the trial court’s finding that

termination of M.R.’s parental rights was in E.C.R.’s best interest. See In re

C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.) (“Without

stability, income, or a home, appellant is unable to provide for the child’s

emotional and physical needs . . . [and her] unstable life threatens the physical

well-being of the child and may put the child at risk of injury.”); In re J.I.T.P., 99

S.W.3d 841, 846–47 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (finding

evidence that parents could not provide stable environment, were mentally

unstable, did not have a stable residence, and did not maintain consistent

employment supported trial court’s finding that termination of parental rights was

in child’s best interest).

       With respect to the third Holley factor, evidence of the emotional and

physical danger to E.C.R. now and in the future, M.R. argues that there is no

evidence that E.C.R. was now in danger or would be in the future. However,

evidence of past misconduct or neglect can be used to measure a parent’s future

conduct. See In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied).

Here, M.R. has lost custody of all of her children. Her oldest child was taken into

DFPS custody based on an allegation of physical abuse, and her parental rights to

that child were later terminated. Additionally, M.R. pleaded guilty to causing

injury to her daughter, and received four years deferred adjudication.            The

                                          6
evidence related to this factor weighs in favor of the trial court’s best interest

finding.    See In re A.M., 385 S.W.3d at 82–83 (concluding that evidence of

mother’s history of neglecting and endangering children by exposing them to

domestic violence supported trial court’s finding that termination was in child’s

best interest).

       M.R. asserts that there was “scant testimony” regarding the fifth Holley

factor, programs available to assist her in promoting the best interest of the child.

She argues that the failure to submit her psychological evaluation into evidence

meant that the trial court had no knowledge of the recommendations made in the

evaluation. However, E.C.R.’s caseworker testified that M.R. failed to complete

“big services . . . which she needed,” including a psychiatric evaluation, as ordered,

and psychotherapy, as recommended by her court-ordered psychological

evaluation. M.R. did not object to this testimony. Further, M.R. concedes on

appeal that she had not completed “her psychiatric evaluation or the follow up

recommendation from her psychological evaluation.”             Thus, there is some

evidence of programs available to assist M.R., of which she did not avail herself,

and on balance, this factor weighs in favor of the trial court’s best interest finding.

See In re J.I.T.P., 99 S.W.3d at 847 (evidence of mother’s failure to follow therapy

plan as recommended by psychological evaluation weighed in favor of best interest

finding).

                                          7
      Concerning factors six and seven, in which we examine the plans for the

child by the individual and by the agency seeking custody and the stability of the

home or proposed placement, the record reflects that DFPS’s long term goal for

E.C.R. is unrelated adoption. M.R. notes there was no evidence about DFPS’s

definitive plan for E.C.R.’s permanent adoption and few details about his current

placement. According to M.R., this weighs against termination. But the record

also reflects that E.C.R. is currently doing well in foster care. He and M.R.’s

youngest son are in the same foster home, and his foster parents are meeting his

physical and emotional needs. And we note that “the lack of evidence about

definitive plans for permanent placement and adoption cannot be the dispositive

factor [in a best interest analysis]; otherwise, determinations regarding best interest

would regularly be subject to reversal on the sole ground that an adoptive family

has yet to be located.” In re C.H., 89 S.W.3d at 28; see also In re G.B. II, 357

S.W.3d 382, 384 (Tex. App.—Waco 2011, no pet.) (finding that DFPS is not

required to make permanent placement before party’s parental rights may be

terminated).

      M.R. asserts that the eighth Holley factor weighs in her favor, because there

is no evidence of acts or omissions that indicate that the existing parent-child

relationship between herself and E.C.R. is not a proper one, and that the evidence

shows that at the time E.C.R. was removed, he was clean, healthy, and

                                          8
developmentally on target. The evidence that E.C.R. was clean, healthy, and

developmentally on target at the time of removal weighs against termination, but

we must also consider the fact that M.R. was charged with, and ultimately pleaded

guilty to, injuring E.C.R.’s sister.

       With respect to any excuses for the acts or omissions of the parent, the ninth

Holley factor, M.R. points to the child advocate’s testimony that M.R. was

pregnant for most of the pendency of the case, and that M.R. told her that the

pregnancy was a difficult one which rendered her unable to work. While this

weighs in M.R.’s favor, we note that M.R. introduced no evidence that showed that

she was unable to work during the pregnancy.

       M.R. raises two additional factors she claims are relevant to our analysis.

First, she became pregnant with her first child (not E.C.R.) while she was a minor

in DFPS custody. Second, M.R. points to the child advocate’s testimony that her

recommendation if the case went forward at another time might be “different,” but

that on the date of trial, she was recommending termination.

       M.R. presented some evidence that weighs against termination; nevertheless,

after considering the entire record, we conclude that the evidence is factually

sufficient for a reasonable factfinder to have formed a firm belief that termination

of M.R.’s parental rights was in E.C.R.’s best interest. In re J.F.C., 96 S.W.3d at

266.

                                          9
                                   Conclusion

      We affirm the judgment of the trial court.




                                             Rebeca Huddle
                                             Justice

Panel consists of Chief Justice Radack and Justices Jennings and Huddle.




                                        10
