                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-16-00127-CV


IN THE INTEREST OF L.M., A
CHILD




                                       ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-99886J-14

                                       ----------

                          MEMORANDUM OPINION1

                                       ----------

      Appellants Mother and Father appeal the termination of their parental

rights to L.M., the child who is the subject of this suit. We affirm.




      1
       See Tex. R. App. P. 47.4.
                                   Background

I. Mother

       L.M. is Mother’s ninth child but her first child with Father. At the time of

trial in this case, Mother did not have possession of any of her nine children 2 and

had been the subject of thirteen Child Protective Services (CPS) investigations in

Texas and Oklahoma, largely as a result of her drug abuse.

       A. Mother’s drug abuse and criminal history

       Mother’s drug abuse started at a young age. She started using drugs

around the age of twelve, and she started using crack cocaine, her drug of

choice, when she was seventeen years old.             She also experimented with

methamphetamine and pills. At least three of her children, including L.M., tested

positive for cocaine when they were born. Although at trial Mother claimed that

she had been sober since April 2014, she also admitted that she continued to

drink alcohol occasionally. Mother admitted to engaging in a continuing course

of endangering her children as a result of her drug use.

       Mother’s criminal history included the following:

   -   In 2002, Mother received two convictions in Oklahoma for attempted
       robbery with a dangerous weapon, for which she was sentenced to
       ten years’ confinement. At the time, she was working as an exotic
       dancer and she planned the robberies with a man she met at the
       club in which she danced.3 She served three years in prison before

       2
      Two of her children had died.           It is not clear from the record what
happened to three of Mother’s children.
       3
        After the failed robberies, Mother’s accomplice murdered the manager of
the strip club where Mother was working at the time.
                                          2
       receiving parole. She violated the terms of parole three years later
       by leaving Oklahoma and was arrested in Granbury, extradited to
       Oklahoma, and sentenced to additional community service, which
       she completed.

   -   In April 2008, Mother was convicted for prostitution.

   -   In May 2013, Mother was arrested for possession of a controlled
       substance. That charge was later dismissed.

   -   In October 2015, Mother received a citation for an open container
       violation after she and Father were pulled over and investigated for
       driving while intoxicated (DWI). Mother, the passenger, failed a field
       sobriety test and was determined to be intoxicated by the
       investigating officer. At the time of trial, she did not know the status
       of that charge.

   -   At the time of trial, there was an active warrant for Mother’s arrest
       related to outstanding tickets for driving a vehicle without brake lights
       and driving without a driver’s license.

       B. The Franklin children

       Mother’s parental rights to three of her children, two boys and a girl who

were collectively referred to as the “Franklin4 children” throughout the trial, were

terminated in April or May of 2014.

       All three of the Franklin children made outcries of sexual abuse to their

foster mother after they were taken into custody by the Department of Family and

Protective Services (DFPS). The female child, M.F., was only six years old at the

time of the outcry and alleged that Mother as well as Mother’s friends and

boyfriends had sexually abused her and forced her to work as a prostitute in

       4
        In accordance with rule 9.8, we refer to children and family members,
including adoptive and foster parents, by aliases or initials. Tex. R. App. P.
9.8(b) & cmt.

                                          3
order to obtain drugs. M.F. said that she was penetrated anally and vaginally to

the point that she was bleeding and that, once, Mother threw a washcloth at her

and told her to clean herself up. M.F. also said that she was shot with needles,

that she was forced to have sex with Mother and her uncle at the same time, and

that she was forced to have sex with her brothers.

      The older of the two Franklin boys was seven years old when he told T.G.,

the foster mother who later adopted both boys, but not M.F., that he was forced

to have sex with Mother, a man he referred to as “Uncle Spud,” and other

strangers.5 The younger Franklin son made an outcry when he was five years

old that strangers and his Uncle Spud had penetrated his anus with “things” and

that he was forced to perform oral sex and have oral sex performed upon him.

      The children continued to have behavioral problems and act out after

termination. The daughter had required hospitalization three or four times even

after the termination. T.G. testified that after she picked up M.F. from M.F.’s

previous foster home, M.F. masturbated in the backseat of the car. She testified

that M.F., who was six years old at the time, would bang her head against walls

and scream, put objects inside her vagina and anus, open her mouth and attempt

to kiss her foster mother with her tongue, proposition men at the grocery store

and the park, and masturbate in public. One of the boys told T.G. that M.F. had

been having sex with the dog and that M.F. had forced him to have sex with her,

      T.G. testified that one of the boys described the strangers as “people that
      5

were paying [Mother].”

                                        4
threatening to kill him if he did not. M.F., who reportedly was “hearing voices,”

was diagnosed with attachment disorder, Attention Deficit Hyperactivity Disorder

(ADHD), trauma, and Post-Traumatic Stress Disorder (PTSD). At the time of trial

in this case, M.F. was eight years old and was living in her third foster care

placement since leaving T.G.’s home. She continued to struggle in school and

was receiving therapy on a weekly basis, along with several special education

services at school.

      The Franklin boys also received ongoing counseling. The older Franklin

son, who was nine at the time of trial, was depressed, suicidal, and suffering from

PTSD. He was taking two different antidepressants as of the time of trial but

reportedly still had a lot of anger. The younger Franklin son, who was six at the

time of trial, also suffered from PTSD as well as attachment and anger issues

and behavioral issues at school.

      Although Mother denied sexually abusing any of the Franklin children, she

admitted that she was “completely” responsible for their severe psychological

issues, which, according to Mother, were caused by her failure to protect them

from her continuing pattern of abusing drugs. Mother also admitted that even

though Uncle Spud had been investigated for sexually abusing another family

member, she still allowed him to be around the Franklin children.          Mother

admitted to making some “horrible decisions” but assured the court that Uncle

Spud was no longer in her life. Despite a CPS investigation concluding that there



                                        5
was no “reason to believe” that Mother had sexually assaulted M.F., her parental

rights to the children were terminated after a trial in April 2014.

       The day after the Franklin termination trial ended in April 2014, Mother

tested positive for cocaine.

II. Father

       Father also had a history of significant drug abuse and a more extensive

criminal history than Mother. Additionally, Father had been diagnosed with a

number of mental illnesses that limited his ability to work outside the home.

       A. Father’s drug abuse and criminal history

       Father dropped out of school in the sixth grade and became involved in

dealing drugs and “hustling” beginning in the late 1980s and continuing into to

the early 2000s. His criminal history included the following:

   -   In October of 1988, Father was charged with delivery of a controlled
       substance, cocaine.

   -   In November 1988, Father was again charged with delivery of a controlled
       substance, cocaine.

   -   In November 1988, Father was charged with possession of a controlled
       substance, cocaine, with intent to deliver.

   -   In March 1989, Father was charged with assault with a deadly weapon.

   -   In November 1989, Father was charged with attempted murder.

   -   In December 1989, Father was charged with possession of a controlled
       substance, cocaine, with the intent to deliver.

   -   In May 1990, Father was charged with aggravated assault causing bodily
       injury.



                                           6
-   In January 1990, Father pleaded guilty to the 1988 delivery charges. He
    was sentenced to ten years’ imprisonment for each conviction. Father
    entered a plea in bar to the remaining drug charges he had accrued from
    1988 through 1990.

-   In August 1990, Father pleaded guilty to the charge of aggravated assault
    causing serious bodily injury and was sentenced to five years’
    confinement. His guilty plea was entered as part of a plea in bar to the
    pending charges against him for attempted murder and aggravated assault
    with a deadly weapon.

-   Father served one year of his two ten-year sentences and one five-year
    sentence, which ran concurrently, and was released from prison on parole
    in January 1991.

-   In February 1991, one month after he was released from prison, Father
    was arrested for possession of a controlled substance. That charge was
    later dropped.

-   In August 1994, Father was convicted of failing to identify himself to a
    police officer and sentenced to 45 days’ confinement.

-   In October 1994, Father was convicted of possession of marijuana and
     sentenced to 15 days’ confinement and a $300 fine.

-   In January 1995, Father was arrested for theft.

-   In March 1996, Father was charged with possession of cocaine with the
    intent to deliver. The charge was dismissed pursuant to a plea in bar in
    connection with a later charge for escape made in 1996.

-   Also in March 1996, Father was charged with illegally possessing a
    firearm. That charge was dismissed because there was insufficient
    evidence to support the charge.

-   In December 1996, Father was arrested and charged with possession of
     cocaine. He pleaded guilty to the charge, was convicted, and was
     sentenced to fifteen years’ confinement.




                                      7
   -   Also in December 1996, Father was arrested and charged for escape. He
       pleaded guilty, was convicted, and was sentenced to fifteen years’
       imprisonment.6

   -   In September 2007, Father was charged with possession of cocaine,
       pleaded guilty, and was convicted. He was sentenced to two years’
       confinement.

   -   In October 2015, Father was arrested and charged with DWI. Earlier that
       morning, Father had appeared in court for a hearing in this case. At the
       trial of this termination case, Father claimed that the attorney ad litem in
       this case had set up this arrest and that the police were working for the ad
       litem; he said he refused the blood alcohol test because he was afraid the
       police “might . . . shoot [him] up with something to show [he was] dirty.”
       Father’s driver’s license was suspended for 180 days for refusal to take
       the blood alcohol test. That suspension was still in effect at the time of
       trial.

       Additionally, Father tested positive for cocaine in January 2014 and in

March 2014, shortly after L.M. was taken into custody by DFPS.

       B. Father’s family

       Father admitted that his brother, sister, niece, and nephew, with whom he

had frequent contact, had criminal histories. Another brother, K., also had a

criminal history, but Father denied that K. was part of his life, even though K. lent

Mother and Father a truck to drive periodically, including during the trial.

       Father had two children from a previous relationship, a son and a

daughter, but he was not involved in either of their lives because he had been in

prison during most of their youth. Father testified that the reason he had not

attempted to find his son after release from prison was because the child’s
       6
       When asked at trial if he would be surprised to know that he had received
at least thirty traffic citations between 1988 and 1996, Father responded, “I was
just young running wild.”

                                          8
mother had taken him to Lewisville or Carrollton and that he did not know how to

get to his son’s location, saying, “[I]f I don’t know the directions of going way

across town, I mean that kind of throws me for a loop.”

      Although he testified that he wanted his relationship with L.M. to be

different from his relationship with his two other children, Father did not know

L.M.’s birthday when asked at trial. When asked who would care for L.M. if

something happened to him, Father responded that he “got nieces,” but he did

not know their names and admitted that he had never socialized with them.

      C. Father’s disabilities

      At the time of trial, Father received $733 a month in social security

disability income due to certain mental illnesses. 7 Father had been diagnosed

with manic depression “with psychotic features,” antisocial disorder, and mild

mental retardation. He testified that because of his antisocial disorder, he did not

like to communicate with people on a regular basis. He testified that when he

had a psychotic episode, he would “[try] to get out around people that [he]

know[s] that’s not right.”   He took medication to help with his mental health

conditions but admitted that he occasionally mixed alcohol with his medications,

which he knew he was not supposed to do.




      7
      Father did not have any other steady source of income, although he
sometimes mowed lawns for money and occasionally worked for his brother or
borrowed money from his brother.

                                         9
III. L.M.

      L.M. was born while the Franklin termination proceedings were pending.

Although CPS was monitoring Mother at the time of L.M.’s birth, they lost track of

her. To avoid drug tests and home visits by CPS, Mother lied to CPS, claiming

that she and L.M. were in Oklahoma, but in fact during the twenty-seven days

that Mother had custody of L.M. after his birth, she and L.M. moved from place to

place, staying “a few nights here and there.” She admitted at trial that she lied to

CPS about where she was living because she did not “feel compelled to hand

[her] kid over.”

      Mother and Father were eventually located at the parole office by a DFPS

special investigator. The investigator later met up with Mother and Father at

Father’s sister’s home, and while the investigator was speaking to Father

outside, Mother escaped with L.M. through the back door.

      L.M. was finally taken into custody by DFPS on March 17, 2014, after

DFPS located him and Mother at Father’s house. Mother and Father both tested

positive for drugs after L.M. was taken into custody. He was placed in foster care

that evening with Kendall and Jordan.

      A. L.M.’s health issues

      Kendall, one of the foster parents, described L.M. as having severe

diarrhea and being “very jerky, very rigid, . . . very, very tight” when they received

him. L.M. tested positive for cocaine not long after he was taken into custody.

Neither Mother nor Father offered any explanation as to why L.M. tested positive

                                         10
for cocaine, but both insinuated at trial that it was the fault of DFPS or the foster

parents.

      L.M. was diagnosed with a number of significant health issues after he was

taken into custody. He suffers from severe gastrointestinal issues, including food

allergies. The foster parents engaged in a considerable amount of trial and error

to determine what would cause his gastroenteritis to flare and stated that it could

take “weeks and months” for a flare to settle back down. Sometimes, L.M. would

appear to be able to tolerate a food and then later not be able to tolerate the

same food. They switched formulas four times before finding one that, at the

time of trial, he could tolerate. In addition to using a specialized formula, the

foster parents specialized L.M.’s diet to provide extra calories and added gas

drops into his drinks. According to Kendall, L.M.’s gastroenterologist expected

L.M.’s gastrointestinal issues to continue in the future.       Mother and Father

participated in some of the gastroenterology appointments, and on those

occasions, the doctor would explain L.M.’s symptoms and the effects of his

disorder to them.

      L.M. was also diagnosed with obstructive sleep apnea and central sleep

apnea and received treatment from an ear, nose, and throat (ENT) doctor and

two pulmonologists for these conditions.       In October 2014, L.M. underwent

surgery to remove his tonsils and adenoids in an attempt to diminish his

obstructive sleep apnea. Kendall testified that Father initially told the ENT that

he was opposed to the surgery, but when the physician explained to Father that

                                         11
L.M. could die from obstructive sleep apnea, it appeared to Kendall that Father

understood the ENT’s explanation. However, two months after the surgery had

taken place, while attending an appointment with L.M.’s pulmonologist to discuss

L.M.’s sleep apnea, Father claimed that he did not recall sleep apnea ever

having been discussed before, and he persisted in this claim even after Kendall

reminded him of their conversation with the ENT. Later in the same appointment,

Father claimed that the ENT had not explained that the sleep apnea could kill

L.M. but that a nurse had.

      L.M. had also been diagnosed with dystonia by two neurologists. Kendall

explained dystonia as a serious neurological disease that affected L.M.’s ability

to control his muscles because “the brain [was] sending incorrect signals to

certain muscle groups,” causing “fluctuating tone.”   The dystonia affected his

ability to control his legs or his shoulders and also caused L.M. to tire easily,

which made him grumpy. L.M. received occupational and physical therapy for

his dystonia, sometimes eight to ten times a month. He also wore orthopedics

for his legs, a brace on each ankle, and a taller brace that he used when he was

experiencing problems with his right leg failing, which generally occurred in the

evenings.

      Kendall testified that the dystonia had been discussed with Mother and

Father in an appointment with the neurosurgeon and that the ENT had also

discussed dystonia with Father. Kendall testified that both Mother and Father

demonstrated that they understood the explanations of L.M.’s conditions by the

                                       12
neurosurgeon and the ENT, and they asked questions of the doctors. Mother

was able to explain some basics about dystonia when asked about it at trial, but

Father could not describe its effects.

      In addition to the dystonia, L.M. suffered from “Abnormal Involuntary

Movement” (AIM), also referred to as Dyskinesis, which Kendall described as

“more problematic” and quite severe. AIM caused L.M. to have uncontrollable

full body movement, lasting for ten to twenty seconds. Kendall testified that L.M.

was experiencing more frequent episodes of AIM, which caused his whole body

to shudder uncontrollably. She also testified that the dystonia and AIM caused

L.M. to fall down frequently. Kendall testified that because of her concern that

AIM could lead to severe problems for L.M. in the future, she hoped to take him

to the Mayo Clinic to investigate clinical trials that might be available as a source

of treatment for the disorder.

      L.M. was also diagnosed with spinal issues, which Kendall described as a

“fatty filum” and a “tethered cord” that caused additional pain and could lead to

nerve damage, scoliosis, and compressed discs in the future.                  L.M.’s

neurosurgeon, Dr. Honeycutt, had recommended surgery to cut the fatty filum in

an effort to release tension on the spinal cord.        According to Kendall, Dr.

Honeycutt had described the condition of L.M.’s spine and the proposed surgery

to Mother and Father in great detail, expressing the risks of the surgery as

minimal and explaining that without surgery, L.M.’s spinal issues could become



                                         13
significantly worse, possibly leading to loss of use of his limbs.8 Dr. Honeycutt

even drew pictures of the spine as part of his explanation to Mother and Father.

After the detailed explanation, however, Mother and Father were not in favor of

the surgery but wanted second opinions, although both admitted that they had

made no effort to obtain a second opinion.9 According to Kendall, Dr. Honeycutt

was the second opinion because a prior doctor had already diagnosed L.M. with

these spinal issues during an appointment that Mother and Father had also

attended.

      L.M. was referred to a developmental pediatrician at the Child Study

Center in September of 2015 because of concerns about hyperactivity and

possible autism. Kendall testified that Father attended that appointment10 but

Mother did not. Kendall testified that the developmental pediatrician determined

that L.M. “currently does not qualify under the autism spectrum” but he did

“qualify as an overactive child,” meaning that he would likely be diagnosed with

Attention-Deficit/Hyperactivity Disorder (ADHD). The doctor also diagnosed him

with mixed receptive-expressive language disorder, which required speech

therapy three times a week. Craig Knight, a CASA representative that attended

      8
       According to Kendall, L.M.’s gastroenterologist had indicated that this
surgery could have a positive effect on L.M.’s gastrological issues as well.
      9
       At the time of trial, DFPS had not approved the surgery because L.M.’s
condition was not considered life-threatening.
      10
       Father   was   accompanied     by    two   unidentified   females   at   that
appointment.

                                       14
the appointment with the developmental pediatrician, observed that although

Father was present at the assessment, he did not interact with the examining

physician by asking questions, providing information, or participating in the

assessment in any other manner.

      Kendall described L.M. as a “sweet, opinionated, happy, on-the-move boy

who has an attitude” and who tires easily and is a picky eater. He had sleep

issues, sleeping only about four-and-a-half hours at a time and taking one 45-

minute to one-hour nap a day. At the time of trial, L.M. was taking Clonidine to

help his muscles relax at night, painkillers for nerve pain—including Gabapentin

to specifically ease his spinal pain—and melatonin to help him sleep. L.M. had

doctor’s appointments at least twice a month and sometimes as often as once a

week. He attended therapy three to five days a week, sometimes in his foster

home and sometimes in therapy facilities.        Additionally, the foster parents

administered a daily therapy regimen at home, as directed by L.M.’s specialists,

including sensory therapy and massage therapy to relax his muscles. From the

time DFPS had taken custody of L.M. until the time of trial, L.M. had been taken

to the ER twice, undergone two MRI’s, stayed overnight in the hospital for his

sleep apnea surgery, and had submitted to a sleep study.

      At trial, neither Mother nor Father could identify any medications that L.M.

was taking, nor could they identify any of L.M.’s doctors or describe his treatment

or therapy schedules.     In total, Mother had attended only three of twelve

appointments that she had the opportunity to attend. Father had attended eight

                                        15
of the twelve he was permitted to attend.         Kendall testified that if L.M.’s

treatments and therapies were not maintained, there was a good chance that he

would become permanently disabled and confined to a wheelchair, have a

stroke, lose the ability to control his muscles, not learn how to speak properly,

and be in a lot of pain.

      B. Mother’s and Father’s interactions with L.M.

      Knight, a supervisor for CASA of Tarrant County and licensed professional

counselor, testified at trial about his observations of Mother’s and Father’s visits

with L.M. Since L.M. was taken into custody by DFPS, Knight had observed 23

supervised parent visits between L.M. and Mother and Father and had visited

L.M. approximately twelve or fourteen times at his foster parent’s home.

      Knight described L.M.’s supervised visits with Father as “generally

appropriate.” For the six to eight months before trial, the visits occurred at Chuck

E. Cheese, and Knight described Father as being attentive, smiling, and seeming

amused by L.M.      According to Knight, L.M. recognized Father and appeared

comfortable and safe around him.         He described Mother as attentive, but

observed that she did not personally interact with L.M. as much as Father.

Knight thought that the bond between L.M. and Father seemed stronger than the

bond between L.M. and Mother. But Knight also noted that L.M. appeared to feel

safe with both.

      Although Knight felt that L.M. and his parents had appropriate and positive

interactions during the supervised visits, he still expressed concern about their

                                        16
ability to care for L.M. Knight recounted a supervised visit in which Mother gave

L.M. food11 that subsequently caused L.M. a great deal of distress—including

diarrhea and vomiting—and weight loss,12 and put him at risk of hospitalization.

Knight recalled another instance when Father arrived at a supervised visit

accompanied by his nephews without having obtained pre-approval of the extra

visitors, a situation that to Knight demonstrated a lack of ability to plan ahead.

      Another visitation supervisor testified about a December 2014 visit when

she noticed that Father smelled like alcohol. She informed Chevy Levels, the

CPS caseworker that handled this case, who spoke to Father about it, but she

also noted that Father was not exhibiting any behavior that caused her to end the

visit earlier than its scheduled time.

IV. The termination proceedings

       On March 17, 2014, DFPS filed a petition to terminate the parent-child

relationship between L.M. and Mother and Father.13 Initially, DFPS’s goal was to

reunite L.M. with Mother and Father, with a concurrent goal of placing L.M. with a

relative. Family Service Plans were put in place, and Mother and Father were

both given a number of tasks to complete, including classes, drug abuse

       Knight explained that because of L.M.’s gastrointestinal issues and his
      11

food sensitivities, during visitations he was permitted to eat only food that had
been provided by his foster parents.
      12
        L.M. lost three pounds.
      13
        In April 2015, the attorney ad litem for L.M. filed a petition to terminate
the parent-child relationship between L.M. and Mother and Father.

                                         17
recovery programs, attendance at visitations with L.M., and refraining from any

criminal activities or illegal acts.

       On November 7, 2014, the foster parents filed a petition in intervention in

the suit seeking termination of Mother and Father’s rights and appointment as

possessory conservators.

       On March 3, 2015, the parties agreed to, and the court entered, an

“Agreed Order for Actions Necessary for Parent to Obtain Return of Child.” In it,

the court ordered that Mother (1) comply with all requests for random drug

testing, (2) attend Narcotics Anonymous or Alcohol Anonymous meetings at least

twice a week and obtain a sponsor, and (3) develop a written Substance Abuse

Relapse Prevention Plan. Father was ordered to (1) comply with all requests for

random drug testing, (2) attend Narcotics Anonymous or Alcohol Anonymous

meetings at least twice a week and obtain a sponsor, (3) develop a written

Substance Abuse Relapse Prevention Plan, and (4) follow through with Tarrant

County Mental Health and Mental Retardation on a monthly basis, follow all

recommendations, and take all medications prescribed to him.

       A. July 2015 hearing and motion for monitored return

       This case was initially set for trial on Tuesday, July 15, 2015. On the

Thursday before that trial setting, DFPS filed a motion for monitored return of

L.M. to Mother and Father, and the parties agreed to proceed on July 15 on the

attorney ad litem’s and the foster parents’ petitions to terminate as well as

DFPS’s motion for monitored return. Levels, who in addition to acting as the

                                        18
CPS caseworker for this case also handled the Franklin investigation, testified at

the July hearing that she would be comfortable returning L.M. to Mother and

Father.

      Levels admitted that none of her concerns that had existed at the time of

the Franklin trial had changed as of July 2015, such as the existence of the

sexual abuse allegations, the fact that Mother did not have custody of any of her

eight other children, and her concerns about Father, his drug use, and his

extensive criminal history. Nevertheless, Levels testified that she felt that either

Mother or Father could successfully raise L.M. on their own because they had

been sober for almost a year, Mother was better about communicating with CPS

than she had been during the Franklin investigation, and they had demonstrated

that they would be able to care for L.M. Levels testified that Mother behaved

differently in her visits with L.M. than she had when visiting the Franklin children,

interacting more and engaging more with L.M., although she conceded that these

observations had occurred in a supervised environment for only four hours each

month.

      Levels also acknowledged Father’s mental health conditions, including the

fact that he experienced hallucinations, but indicated that she was not concerned

about his ability to raise L.M. if he continued to properly manage his mental

health issues with medication. She admitted, however, that she had not spoken

to anyone at Mental Health and Mental Retardation who had actually treated

Father. Levels admitted that Mother and Father had not, at that point, been to

                                         19
any of L.M.’s doctor’s appointments or been involved in his medical care, but she

also felt that DFPS could have done more to facilitate their involvement.

      By the end of the July hearing, Levels was the only witness that had

testified and had only testified on direct examination by the attorney for the

intervening foster parents.14

      B. March 2016 continuation of final trial

      The final hearing did not resume until March 2016, but in January 2016,

the trial court found in a permanency hearing order that neither Mother nor

Father had demonstrated adequate and appropriate compliance with their

service plans. In addition to testimony by Mother, Father, T.G., and Kendall to

the facts recited above, the court heard testimony from Levels and Knight

regarding their observations of Mother and Father.

      By the time of the March 2016 hearing, Levels had changed her stance,

testifying that termination—not reunification with Mother and Father—was in

L.M.’s best interest. Levels testified that during a home visit in November 2015,

she had learned of Father’s October 2015 DWI arrest and the suspension of his



      14
         It is unclear from the record why Levels was the only witness to be heard
on July 15, 2015. The trial was rescheduled for November 18–19, 2015. On the
day before the November trial setting, Father requested a continuance on the
basis that L.M.’s maternal grandfather was a member of the Creek Nation and
that this American Indian ancestry subjected L.M. to the requirements of the
Indian Child Welfare Act.         The notices required under the ICWA were
subsequently given, and the trial setting was again continued and rescheduled
for March 21, 2016.

                                        20
driver’s license.   According to Levels, Father claimed that his license was

suspended because of a conspiracy involving the attorney ad litem in this case.

      Following that visit to the home and the discovery of the DWI arrest, Levels

decided that the permanency goal for L.M. would no longer be a monitored return

to the parents but, instead, a termination of parental rights. After this violation,

Levels was concerned that Mother and Father had not refrained from criminal

activity during the pendency of the termination proceedings and that they had not

remained sober during the proceedings.

      Knight also expressed his belief that it was in L.M.’s best interest that

Mother’s and Father’s rights be terminated. He testified that he thought Father’s

rights should be terminated because of his history of mental health issues,15

Father’s failure to make appointments with his mental health professionals, and

his failure to reschedule make-up appointments for missed sessions.              He

expressed additional concern over Father’s ability to care for L.M. in light of

L.M.’s serious medical issues. By way of example, Knight pointed to an event

while L.M. was in the foster parent’s care when L.M. had been stung by an insect

      15
         Knight testified that Father’s antisocial personality disorder can present
“a long-standing pattern of behavior, criteria including putting oneself and others
at risk, impulsive behavior, diminished capacity for insight or guilt, . . . lack of
empathy for others, often times using aggression or intimidation to meet their
own needs, not—not adhering to general standards, laws, mores that other
aspects of society typically do.” He admitted that he had not seen any of those
symptoms manifested in Father’s behavior at visits but testified that anecdotal
evidence in the case file supported the diagnosis, including Father’s long-
standing pattern of substance abuse and violence, his prior incarceration, and
the evasiveness on Father’s part before L.M. was removed from the home.

                                        21
and experienced an allergic reaction that required immediate medical attention,

expressing doubt that Father would have provided the appropriate care in that

circumstance. Knight also postulated that L.M.’s medical circumstances would

necessitate ongoing diagnosis and treatment requiring diligence in scheduling

and attending medical appointments and following through with medical

recommendations, a skill that Knight believed Father lacked.          He expressed

concern over Father’s difficulty with reading and navigating to unfamiliar locations

and how those limitations could affect Father’s ability to manage L.M.’s serious

medical issues. He did not feel that Father would be able to make important

medical decisions for L.M. on a consistent basis because his mental illnesses

hindered his ability to think ahead and make good decisions.           Knight further

testified that Father’s day-to-day capacity to function could be impaired by the

hallucinations he experiences due to the major depressive disorder with

psychotic features from which Father suffers.

      To Knight, Father’s October 2015 DWI charge indicated that Father would

“risk his ability to raise [L.M.] and potential termination of his parental rights for

one half a beer” and that Father’s judgment was not in L.M.’s best interest. He

also cautioned that, at some point in the future, L.M. might be prescribed a

medication that Mother or Father could sell on the street.

      In sum, Knight was concerned that Father was unable to make and keep

appointments, that he was not appropriately aware of potential and active

circumstances that could be detrimental to L.M., and that he had not

                                         22
demonstrated a knowledge of the multiple physicians that were treating L.M. on

an ongoing basis or of the medications that L.M. was to be taking. He also

expressed concern about Mother’s and Father’s abilities to obtain insurance

coverage for L.M. and to pay for ongoing and most likely increasing medical

attention.

      C. Termination

      On March 21–23, 2016, the final trial was completed, and the trial court

found clear and convincing evidence that the termination of their rights was in the

best interest of the child.16 With regard to Mother, the court found by clear and

convincing evidence that she had knowingly placed or knowingly allowed L.M. to

remain in conditions or surroundings that endangered his physical or emotional

well-being, engaged in conduct or knowingly placed L.M. with persons who

engaged in conduct which endangered his physical or emotional well-being, had

her parent-child relationship terminated with respect to another child based on a

finding that her conduct violated section 161.001(b)(1)(D) or (E) of the family

code, and that she failed to comply with the provisions of a court order

establishing the actions necessary for her to be awarded custody of L.M. See

Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (M), (O) (West Supp. 2016).

      Regarding Father, the court found that he had knowingly placed or

knowingly allowed L.M. to remain in conditions or surroundings that endangered

       The court terminated Mother’s and Father’s parental rights by order
      16

dated April 12, 2016.

                                        23
his physical or emotional well-being, engaged in conduct or knowingly placed

L.M. with persons who engaged in conduct which endangered his physical or

emotional well-being, and that he failed to comply with the provisions of a court

order establishing the actions necessary for him to be awarded custody of L.M.

Id. § 161.001(b)(1)(D), (E), (O).

                                    Discussion

I. Mother

      Mother’s appellate counsel filed an Anders brief and a motion to withdraw,

declaring that there are no arguable issues and that any appeal by Mother would

be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967); In re

K.M., 98 S.W.3d 774, 776–77 (Tex. App.—Fort Worth 2003, no pet.) (holding that

Anders procedures apply in parental termination cases). The brief meets the

requirements of Anders by presenting a professional evaluation of the record and

demonstrating why there are no arguable grounds to be advanced on appeal.

Although given the opportunity, Mother did not file a response.

      As the reviewing appellate court, we must independently examine the

record to decide whether counsel is correct in determining that an appeal in this

case is frivolous. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App.

1991); In re K.R.C., 346 S.W.3d 618, 619 (Tex. App.—El Paso 2009, no pet.).

Having carefully reviewed the record and the Anders briefs, we agree with

counsel that the appeal is frivolous. See K.R.C., 346 S.W.3d at 619. We find



                                       24
nothing in the record that might arguably support mother’s appeal. See In re

D.D., 279 S.W.3d 849, 850 (Tex. App.—Dallas 2009, pet. denied).

      Accordingly, we affirm the trial court’s termination of Mother’s parental

rights to L.M.

      However, we deny the motion to withdraw filed by Mother’s counsel in light

of In re P.M. because it does not show “good cause” other than counsel’s

determination that an appeal would be frivolous. See No. 15-0171, 2016 WL

1274748, at *3–4 (Tex. Apr. 1, 2016) (“[A]n Anders motion to withdraw brought in

the court of appeals, in the absence of additional grounds for withdrawal, may be

premature.”); see also In re C.J., No. 02-16-00143-CV, 2016 WL 4491231, at *1

(Tex. App.—Fort Worth Aug. 26, 2016, no pet. h.) (denying a motion for

withdrawal in light of In re P.M. where it did not show “good cause” other than

counsels’ determination that an appeal would be frivolous); In re A.M., No. 01-16-

00130-CV, 2016 WL 4055030, at *7 & n.2 (Tex. App.––Houston [1st Dist.] July

28, 2016, no pet.) (noting that since In re P.M. was handed down, “most courts of

appeals affirming parental termination orders after receiving Anders briefs have

denied the attorney’s motion to withdraw”). The supreme court has held that in

cases such as this, “appointed counsel’s obligations [in the supreme court] can

be satisfied by filing a petition for review that satisfies the standards for an

Anders brief.” P.M., 2016 WL 1274748, at *3.




                                       25
II. Father

      Father brings two issues on appeal. First, Father argues that the trial court

erred in failing to strike the foster parents’ plea in intervention because the foster

parents lacked standing to intervene in the termination proceedings.            In his

second issue, Father challenges the sufficiency of the evidence supporting the

trial court’s finding that termination was in the best interest of the child.

      A. Intervenors’ standing

      In his first issue, Father argues that the intervening foster parents did not

have standing to intervene in the termination suit. Father admits that he did not

raise this issue at trial, but standing is a component of subject matter jurisdiction

that we must address even if it was not raised in the trial court. Tex. Ass’n of

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993); see also In re

H.L., No. 02-14-00388-CV, 2016 WL 354080, at *5 n.13 (Tex. App.—Fort Worth

Jan. 28, 2016, pet. denied) (mem. op.) (addressing issue of uncle’s standing

under section 102.004(b) even though it was not raised in the trial court); Mauldin

v. Clements, 428 S.W.3d 247, 263 (Tex. App.—Houston [1st Dist.] 2014, no pet.)

(same). We review an issue of standing de novo. Mauldin, 428 S.W.3d at 262.

When, as here, the trial court does not make separate findings of fact and

conclusions of law, we imply the findings necessary to support the judgment. Id.

(citing In re S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San Antonio 2010, pet.

dism’d)). We review the entire record to determine if the trial court’s implied

findings are supported by any evidence. Id.

                                           26
      Kendall and Jordan filed their petition in intervention on November 7, 2014,

and alleged that they had standing to intervene pursuant to sections

102.003(a)(12) and (b), and 102.004(b) of the family code. Tex. Fam. Code Ann.

§§ 102.003(a)(12), 102.003(b), (West Supp. 2016), 102.004(b) (West 2014). In

an attached affidavit, the foster parents asserted that L.M. was placed in their

home in March 2014 as a foster child and had been in their sole custody since

then with the exception of bi-weekly visits with Mother and Father. The affidavit

also described the extensive criminal and drug histories of Mother and Father,

Mother’s history of multiple parental terminations, and the allegations of abuse

made against Mother.

      The foster parents cannot rely on section 102.003(a)(12) to confer

standing because they did not have custody of L.M. for at least twelve months

before they petitioned to intervene. Id. § 102.003(a)(12)(requiring that a foster

parent have possession of a child for at least twelve months prior to the filing of

an original suit).   At the time that the foster parents filed their petition in

November 2014, they had only had possession of L.M. since March 2014, less

than twelve months. Nor did they acquire standing under section 102.003(b).

This subsection merely provides that the court may not require the time of

possession be continuous in determining if the intervening foster parent has had

possession of the child for at least twelve months. Id. § 102.003(b).

      Thus, it was the foster parents’ burden to establish standing under section

102.004(b) by a preponderance of the evidence. See Mauldin, 428 S.W.3d at

                                        27
262; see also In re Russell, 321 S.W.3d 846, 860 (Tex. App.—Fort Worth 2010,

orig. proceeding). Under section 102.004(b), the foster parents had standing to

intervene if they had substantial past conduct and “there [wa]s satisfactory proof

to the court that appointment of a parent as a sole managing conservator or both

parents as joint managing conservators would significantly impair the child’s

physical health or emotional development.”            Id. § 102.004(b).   Father only

disputes the first prong of 102.004(b)’s standing provision, arguing that the foster

parents did not have “substantial past contact” with L.M. We disagree.

      When they filed their petition, the foster parents had been responsible for

the daily care of L.M. for almost eight of the nine months of his entire life. There

is no statutory definition of “substantial past contact,” but other courts have held

that it was established in circumstances similar to this case and even in cases of

contact for a shorter duration. See In re A.L.W., No. 02-11-00480-CV, 2012 WL

5439008, at *5 (Tex. App.—Fort Worth Nov. 8, 2012, pet. denied) (mem. op.)

(holding substantial past conduct was shown where child had been living in foster

parents’ home fulltime for almost seven weeks); In re A.M., 60 S.W.3d 166, 169

(Tex. App.—Houston [1st Dist.] 2001, no pet.) (holding substantial past contact

was shown where foster parents had cared for child for more than 80 percent of

her lifetime). The foster parents’ fulltime care of L.M. for 34 out of 39 weeks of

L.M.’s life constituted “substantial past contact.”

      Even if we were to determine that the evidence did not support a finding

that the foster parents had standing to intervene, Father has not demonstrated

                                          28
any harm caused by their intervention. To obtain reversal of a judgment based

upon an error in the trial court, the appellant must show that the error occurred

and that it probably caused rendition of an improper judgment or probably

prevented the appellant from properly presenting the case to this court. Tex. R.

App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex.

2005); see also Jabri v. Alsayyed, 145 S.W.3d 660, 672 (Tex. App.—Houston

[14th Dist.] 2004, no pet.) (holding trial court’s erroneous refusal to strike

intervention was harmless and therefore did not warrant reversal).

      The order terminating Mother and Father’s parental rights does not confer

any rights on the foster parents, such as awarding them custody or a

conservatorship over L.M.      The order awards DFPS a permanent managing

conservatorship over L.M.     In fact, other than reciting that the foster parents

appeared at trial as parties to the suit, the final order in this case did not mention

them again. Thus, we fail to see how any alleged error by the trial court in not

sua sponte striking the foster parents’ intervention was harmful. We overrule

Father’s first issue.

      B. Sufficiency of the evidence of best interest of the child

      In his second issue, Father argues that the evidence was factually and

legally insufficient to support the trial court’s finding that termination of his

parental rights was in the best interest of L.M. Father admits in his brief that the

evidence supported “at least one” of the grounds for termination under section



                                         29
161.001(b)(1), and he limits his argument to the evidence supporting the

determination of best interest of the child.

       In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever

permanently the relationship between a parent and a child, it must first observe

fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)

(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92

(1982)).   We strictly scrutinize termination proceedings and strictly construe

involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d

796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.

       Termination decisions must be supported by clear and convincing

evidence. See Tex. Fam. Code Ann. § 161.001(b), § 161.206(a) (West 2014);

E.N.C., 384 S.W.3d at 802. “[C]onjecture is not enough.” E.N.C., 384 S.W.3d at

810.   Due process demands this heightened standard because “[a] parental

rights termination proceeding encumbers a value ‘far more precious than any

property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59,

102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also

E.N.C., 384 S.W.3d at 802. Evidence is clear and convincing if it “will produce in

the mind of the trier of fact a firm belief or conviction as to the truth of the

                                         30
allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West

2014); E.N.C., 384 S.W.3d at 802.

      For a trial court to terminate a parent-child relationship, the party seeking

termination must establish by clear and convincing evidence that the parent’s

actions satisfy one ground listed in family code section 161.001(b)(1) and that

termination is in the best interest of the child.         Tex. Fam. Code Ann.

§ 161.001(b); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex.

2005). Both elements must be established; termination may not be based solely

on the best interest of the child as determined by the trier of fact. Tex. Dep’t of

Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391

S.W.3d 287, 295 (Tex. App.—Fort Worth 2012, no pet.).

      In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the challenged ground for

termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We

review all the evidence in the light most favorable to the finding and judgment.

Id. We resolve any disputed facts in favor of the finding if a reasonable factfinder

could have done so. Id. We disregard all evidence that a reasonable factfinder

could have disbelieved.    Id.     We consider undisputed evidence even if it is

contrary to the finding.     Id.    That is, we consider evidence favorable to

termination if a reasonable factfinder could, and we disregard contrary evidence



                                         31
unless a reasonable factfinder could not. See id. “A lack of evidence does not

constitute clear and convincing evidence.” E.N.C., 384 S.W.3d at 808.

       We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses because that is the factfinder’s province. J.P.B.,

180 S.W.3d at 573–74. And even when credibility issues appear in the appellate

record, we defer to the factfinder’s determinations as long as they are not

unreasonable. Id. at 573.

       We are required to perform “an exacting review of the entire record” in

determining whether the evidence is factually sufficient to support the termination

of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In

reviewing the evidence for factual sufficiency, we give due deference to the

factfinder’s findings and do not supplant the trial court’s judgment with our own.

In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the

entire record, a factfinder could reasonably form a firm conviction or belief that

the termination of the parent-child relationship would be in the best interest of the

child. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (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 in the truth

of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at

108.



                                         32
      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review

the entire record to determine the child’s best interest. In re E.C.R., 402 S.W.3d

239, 250 (Tex. 2013).         The same evidence may be probative of both the

subsection (1) ground and best interest.      Id. at 249; C.H., 89 S.W.3d at 28.

Nonexclusive factors that the trier of fact in a termination case may also use in

determining the best interest of the child include

      (A)    the desires of the child;

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

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

      (D)    the parental abilities of the individuals seeking custody;

      (E)    the programs available to assist these individuals to promote the

best interest of the child;

      (F)    the plans for the child by these individuals or by the agency seeking

custody;

      (G)    the stability of the home or proposed placement;

      (H)    the acts or omissions of the parent which may indicate that the

existing parent-child relationship is not a proper one; and

      (I)    any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d

at 249 (stating that in reviewing a best interest finding, “we consider, among

other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.

                                         33
      These factors are not exhaustive, and some listed factors may be

inapplicable to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed

evidence of just one factor may be sufficient in a particular case to support a

finding that termination is in the best interest of the child. Id. On the other hand,

the presence of scant evidence relevant to each factor will not support such a

finding. Id. That is, “[a] lack of evidence does not constitute clear and convincing

evidence.” E.N.C., 384 S.W.3d at 808.

      A. Emotional and physical needs and danger

      In this case, there was substantial evidence that L.M. has high emotional

and physical needs and will continue to have those needs in the future and also

that any failure to properly meet his medical needs could result in serious

physical danger to L.M. now and in the future. L.M. has a number of significant

health concerns that require daily attention, including gastroenteritis, dystonia,

AIM, sleep apnea, and spinal issues. At the time of trial, L.M. received therapy

three to five times a week and at-home therapy on a daily basis. He was under

the care and treatment of multiple doctors, including a pediatrician, a

developmental      pediatrician,    pulmonologists,      neurologists,     and     a

gastroenterologist, requiring recurring visits, as often as once a week.

      As a general rule, conduct that subjects a child to a life of uncertainty and

instability endangers the physical and emotional well-being of a child. In re R.W.,

129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). Additionally, in

this case, failure to manage L.M.’s conditions and maintain the necessary

                                         34
therapy and medication regimens could result in physical pain and serious

physical harm to L.M., possibly leaving him without the use of his limbs, leaving

him bound to a wheelchair, causing him to have a stroke, or causing him not to

learn how to speak properly.      When questioned at trial regarding his son’s

medical needs, Father demonstrated only vague awareness of L.M.’s medical

needs. He did not know what medications L.M. was taking17 and he could not

name any of L.M.’s doctors or therapists.          When a parent, whether by

indifference, ignorance, or incapacity, cannot attend to his child’s medical needs,

a danger is posed to the child’s emotional and physical well-being. This danger

manifested itself here, when, after being in the care of Mother and Father, both of

whom tested positive for cocaine, L.M., hardly a month old, also tested positive

for the drug. Exposure to drug use in general—and most certainly the ingestion

of cocaine—endangers a child’s health and needs. See, e.g., In re D.S., 176

S.W.3d 873, 879 (Tex. App.—Fort Worth 2005, no pet.) (holding that evidence of

a parent’s unstable lifestyle, including drug use and inability to provide a stable

home, can support a factfinder’s conclusion that termination is in the child’s best

interest), superseded by statute on other grounds as recognized by In re D.A.R.,

201 S.W.3d 229, 230–31 (Tex. App.—Fort Worth 2006, no pet.).

      “‘[J]ust as it is imperative for courts to recognize the constitutional

underpinnings of the parent-child relationship, it is also essential that emotional

      17
       In fact, Father could not even remember the names of his own
medications at trial.

                                        35
and physical interests of the child not be sacrificed merely to preserve that right.’”

E.C.R., 402 S.W.3d at 240 (quoting C.H., 89 S.W.3d at 26).             Evidence that

Father could not meet L.M.’s physical and emotional needs weighed in favor of

termination.

         B. Father’s parental abilities

         In considering the factor of Father’s parental abilities, Father argues that

he has not had a substantial opportunity to demonstrate his abilities because

L.M. was taken from his custody when L.M. was less than one-month old. He

also relies on observations by Knight that Father’s supervised interactions with

L.M. were positive, that Father was attentive to the child, and that L.M. appeared

comfortable with him.       Lastly, Father argues that he has demonstrated his

parenting abilities by successfully completing the tasks set for him by DFPS,

including attending parenting classes, maintaining a suitable home, attending

counseling, attending AA and NA meetings, and complying with random drug

tests.

         While there is evidence that Father complied with these tasks as required

by DFPS, he was also required to refrain from using drugs or drinking alcohol

and to avoid engaging in any criminal behavior. By Father's own admission, he

violated this requirement when he consumed alcohol in October 2015 and was

subsequently arrested for DWI.

         As discussed in relation to the factor considering L.M.’s physical and

emotional needs, Father knew little about L.M.’s serious medical needs and how

                                          36
to properly care for him, a fact that could be construed as a lack of parental

ability as well. Additionally, evidence of Father’s extensive criminal history and

drug abuse are relevant to evaluating his parental abilities. In re J.F., No. 02-08-

00183-CV, 2009 WL 806889, at *8 (Tex. App.—Fort Worth Mar. 26, 2009, pet.

denied) (mem. op.); D.S., 176 S.W.3d at 879; see also In re S.B., 207 S.W.3d

877, 886 (Tex. App.—Fort Worth 2006, no pet.) (noting that parent’s poor

judgment may be considered in determining child’s best interest). This factor

weighs in favor of termination.

          C. Father’s plans for the child

          All of Father’s plans, as described at trial as well as in in his brief on

appeal, reflect his and Mother’s desire to raise L.M. together and include

Mother’s involvement in caring for L.M. Father planned to take care of L.M. when

Mother was working and proposed that Mother would take care of L.M. when she

was not working and that they would live in Father’s home together. Mother’s

parental rights were terminated, and we affirmed that result by holding her appeal

of that termination is frivolous. Therefore, Father’s plans to involve Mother as a

caregiver for L.M. cannot be in the child’s best interest. The only alternative

offered by Father at trial was his assertion that he “got nieces” that would care for

L.M. if something happened to him, but he admitted that he did not know his

nieces’ names and did not socialize with them. This is not a viable alternative

plan.     This factor therefore weighed in favor of terminating Father’s parental

rights.

                                            37
      D. Father’s acts or omissions and any excuses therefor

      Admittedly, Father completed most of the tasks required by DFPS in its

service plan. However, Father violated the terms of that service plan by drinking

alcohol, and was at least charged with DWI. He then attempted to blame his

DWI on an alleged conspiracy between the attorney ad litem in this case and the

police that arrested him, without any evidence of such a conspiracy existing.

Additionally, Father tested positive for cocaine, as did L.M., a month after L.M.

was born. When asked about L.M.’s positive drug test, Father insinuated that it

was the fault of CPS or the foster parents, which the trial court could have

interpreted as another refusal to accept responsibility for his own actions. This

would weigh in favor of termination. For instance, in the case of In re L.C., the

mother blamed other people who were “out to get her” for her trouble with DFPS,

even though she admitted to regular alcohol abuse and using drugs before her

children were removed from her custody and she tested positive for cocaine

shortly after their removal. 145 S.W.3d 790, 800 (Tex. App.—Texarkana 2004,

no pet.). The Texarkana court considered her “blame-shifting and conspiracy

theories” as illustrations of her failure to take responsibility for her actions and

inactions. Id. Likewise, Father’s refusal to take responsibility for his own actions

is a factor weighing in favor of termination.

      Based on our review of the entire record, we conclude that the trial court

could have reasonably formed a firm conviction or belief that termination of

Father’s rights was in L.M.’s best interest. Therefore, we hold that the evidence

                                         38
is legally and factually sufficient to support the trial court’s finding that termination

is in L.M.’s best interest. Accordingly, we overrule Father’s second issue.

                                     Conclusion

      We deny the motion to withdraw filed by Mother’s counsel in light of In re

P.M., 2016 WL 1274748, at *3–4. Having held that Mother’s appeal is frivolous

and having overruled each of Father’s issues, we affirm the trial court’s judgment

terminating Mother’s and Father’s parental rights to L.M.


                                                      /s/ Bonnie Sudderth
                                                      BONNIE SUDDERTH
                                                      JUSTICE

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

DELIVERED: October 13, 2016




                                           39
