
 Opinion issued March 13, 2003.
 

 






     





In The
Court of Appeals
For The
First District of Texas




NO. 01-02-00464-CV





IN THE INTEREST OF L.M.





On Appeal from the 314th District Court 
Harris County, Texas
Trial Court Cause No. 01-03082J




O P I N I O N

          This is an appeal from a decree terminating the parental rights of Qualen
Dajune Bell and appellant, Denise Mitchell, to their daughter, L.M.  The trial court
found by clear and convincing evidence that (1) termination was in L.M.’s best
interest, (2) Mitchell engaged in conduct or knowingly placed L.M. with persons who
engaged in conduct which endangered the physical or emotional well-being of L.M.,
and (3) Mitchell and Bell had constructively abandoned L.M.  Mitchell appeals the
judgment of the trial court.  Bell is not a party to this appeal and did not contest the
judgment of the trial court.  We affirm.
Background
          On the day L.M. was born, both she and her mother tested positive for cocaine. 
Texas Department of Protective and Regulatory Services (TDPRS) shortly thereafter
filed a petition for termination of the parent-child relationship.  TDPRS attached to
its petition the affidavit of caseworker Amy Green, who stated that she had spoken
to Mitchell shortly after L.M.’s birth, and Mitchell had admitted using drugs, both at
the beginning of her pregnancy and on the day she gave birth to L.M., and that
Mitchell admitted to a history of drug abuse and drug dealing dating back to 1986.
Green’s affidavit also described Mitchell’s criminal history, which included
possession of cocaine, aggravated kidnapping, and felony forgery. 
          A hearing was held on TDPRS’s petition.  At the hearing, Mitchell admitted
that she had smoked cocaine the day of L.M.’s birth.  Mitchell also admitted that, at
the time L.M. was taken into the care of TDPRS, Mitchell was directed by TDPRS
to seek individual and group counseling, to take parenting classes, and to enter a 90-day in-patient treatment facility.
  Mitchell stated that, because she was incarcerated
at the time, she was unable to enter an in-patient treatment facility until several
months after L.M. was taken from her.  Mitchell testified that she did not enter a
treatment program until more than a month after her release because she wanted to
visit L.M. and because she was unaware of any 90-day in-patient programs.  Almost
three months after her release from incarceration, Mitchell entered a 30-day program
at the Houston Recovery Center (HRC).  In the three-month period between her
release from custody and her entry into the HRC program, Mitchell admitted that she
did not visit L.M. regularly and that she tested positive for cocaine.  When Mitchell
was discharged from the HRC 30-day program, arrangements had been made for her
to enter the 90-day residential program at the Star of Hope.  Mitchell testified that she
did not enter the Star of Hope program upon her release from HRC because she had
been married a few days before her discharge from HRC and she did not want to be
separated from her new husband.  Mitchell admitted during the termination hearing
that she had been told by both HRC and TDPRS that her entry into the Star of Hope
program was necessary in order for her to regain custody of L.M.  After her discharge
from HRC, Mitchell and her husband moved into Mitchell’s sister’s home. 
          Mitchell admitted that, since her discharge from HRC, she had smoked
marijuana and had tested positive for drugs.  However, Mitchell denied that she had
used cocaine since leaving HRC and moving in with her sister—Mitchell testified
that, although she had told caseworkers that she had used cocaine since her discharge
from the 30-day HRC, this statement was a lie that she told caseworkers in order to
gain entry into a 90-day residential treatment program.  Mitchell testified that she had
been told that the only way she could gain entry into the 90-day program was to tell
program workers and her caseworkers that she was using drugs at the time.
          At the time of the termination, Mitchell testified that she had been living in a
residential treatment facility for two weeks, and that she had been attending Narcotics
Anonymous support group meetings twice a week for two weeks.  Mitchell also stated
that she had been taking parenting classes for two weeks.  However, Mitchell also
admitted that, in the six and a half months between her discharge from HRC and the
termination hearing, she had only visited L.M. four times.  Mitchell also admitted that
she knew that using drugs while she was pregnant endangered L.M.’s life.
          TDPRS caseworker Tiowana Davis testified that L.M. is an adoptable child,
and that, in light of Mitchell’s continued drug use, Mitchell’s failure to complete a
90-day residential treatment program, and the concerns TDPRS had regarding
Mitchell’s new husband,
 termination was in the best interests of L.M.
 
Standard of Review
          On appeal, Mitchell argues that the evidence was legally and factually
insufficient to establish that termination was in L.M.’s best interest, and that the
evidence was legally and factually insufficient to support the trial court’s finding that
Mitchell had constructively abandoned L.M. 
          In proceedings to terminate the parent-child relationship brought under section
161.001 of the Family Code, the petitioner must establish one or more of the acts or
omissions enumerated under subdivision (1) of the statute and must also prove that
termination is in the best interest of the child.  Tex. Fam. Code Ann. § 161.001
(Vernon 1996 & Supp. 2003);  Richardson v. Green, 677 S.W.2d 497, 499 (Tex.
1984).  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.  Texas Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  Evidence supporting findings in
termination proceedings must be clear and convincing, not just preponderate; the
clear and convincing standard of proof at trial is intentionally placed on the party
seeking the termination of parental rights, due to the severity and permanence of the
termination of the parent-child relationship.  In re C.H., 89 S.W.3d 17, 23 (Tex.
2002).  The clear and convincing standard needed to support termination of parental
rights is the 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 proved.  Id.  While
the proof under this standard must be more than merely the greater weight of the
credible evidence, there is no requirement that the evidence be unequivocal or
undisputed.  State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).
          When, as here, a party without the burden of proof challenges the legal
sufficiency of the evidence, we will sustain the challenge only if, considering the
evidence and inferences in the light most favorable to the finding, there is not more
than a scintilla of evidence supporting it.  See Burroughs Wellcome Co. v. Crye, 907
S.W.2d 497, 499 (Tex. 1995);  In re B.M.R., 84 S.W.3d 814, 817 (Tex.
App.—Houston [1st Dist.] 2002, no pet.). “More than a scintilla of evidence exists
where the evidence supporting the finding, as a whole, ‘rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.’” Burroughs
Wellcome, 907 S.W.2d at 499.  
           When reviewing parental right termination factual findings, we determine
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 at 25.  In
reviewing the factual sufficiency, the reviewing court considers all the evidence in
the record, both that which supports and that which contradicts the trial court’s
findings.  Id. at 29.  When presented with legal and factual sufficiency challenges, the
reviewing court first reviews the legal sufficiency of the evidence.  Glover v. Texas
Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981).
          To terminate Mitchell’s parental rights, the court was required to find that
Mitchell committed one of the acts or omissions prohibited by section 161.001(1) of
the Family Code and that termination was in L.M.’s best interests.  Tex. Fam. Code.
Ann. §§ 161.001(1), 161.001(2) (Vernon 1996).  The trial court found two statutory
violations.
  Mitchell challenges only the abandonment claim, thus conceding the
endangerment finding.  Only one finding under the termination of parental rights
statute is necessary for a judgment of termination.  Robinson v. Texas Dep’t of
Protective & Regulatory Servs., 89 S.W.3d 679, 687 (Tex. App.—Houston [1st Dist.]
2002, no pet.).  Therefore, we need only determine if the evidence was legally and
factually sufficient to support the best interest finding.      Discussion 
          A strong presumption exists that a child’s best interests are served by
maintaining the parent-child relationship.  In re B.M.R., 84 S.W.3d at 819.  An
appellate court may consider the non-exhaustive list of factors set forth in Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) in ascertaining the best interests of a
child.  These factors include (1) desires of the child, (2) current and future emotional
and physical needs of the child, (3) current and future physical danger to the child,
(4) parental abilities of the person seeking custody, (5) whether programs are
available to assist the person seeking custody in promoting the best interests of the
child, (6) plans for the child by the person seeking custody, (7) stability of the home
or proposed placement, (8) acts or omissions of the parent which may indicate that
the parent-child relationship is not proper, and (9) any excuse for acts or omissions
of the parent.  Id.  The State is not required to prove all of the Holley factors,
particularly where there is undisputed evidence that the parent-child relationship
endangers the child’s safety.  In re C.H., 89 S.W.3d at 27.  Absence of evidence about
some of the best interests factors does not preclude a factfinder from reasonably
forming a strong conviction that termination is in the child’s best interest.  Robinson,
89 S.W.3d at 688.  Finally, the same evidence of acts or omissions used to establish
grounds for termination under section 161.001(1) may be probative in determining
the best interests of the child.  In re C.H., 89 S.W.3d at 28.
Legal Sufficiency
          In reviewing the legal sufficiency of the evidence, we view the evidence
presented in the light most favorable to the trial court’s termination order so that we
may determine whether there is more than a scintilla of evidence supporting the trial
court’s finding that termination was in the best interests of L.M. 
          The evidence showed that Mitchell had visited L.M. less than once a month,
and that her behavior when visiting her child was mixed—caseworkers testified that
Mitchell left one visit early and appeared intoxicated at another.  Although Mitchell
testified that she had once brought some baby food and baby clothes to L.M., no other
testimony was presented to establish that Mitchell had provided for L.M.’s physical
needs.  In addition, Mitchell admitted that she had placed L.M. in danger by using
drugs while pregnant, and Mitchell continued to use drugs after L.M. was taken from
her.  While seeking to regain custody of L.M., Mitchell married a man who was a
fellow drug user, and who continued using drugs after their marriage.  Finally, the
court heard evidence regarding Mitchell’s failure to timely enter a 90-day residential
drug treatment program made available to her, which had been made a condition of
regaining custody of L.M. by TDPRS and had been recommended by HRC upon
Mitchell’s discharge from its 30-day program.  Mitchell herself testified that the
reason she chose not to enter the 90-day program was because the program required
that she live apart from her new husband for a period of time.  Davis testified that
L.M. was currently in a foster home and that, in her opinion, L.M. was an adoptable
child and termination was in L.M.’s best interest.  We find that the evidence was
legally sufficient to support the trial court’s finding that termination was in L.M.’s
best interest.
Factual Sufficiency 
          We review the factual sufficiency of termination findings by determining
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 at 25.  In
determining whether the factfinder has met this standard, we consider all the evidence
in the record, both that in support of and contrary to the trial court’s findings.  Id. at
29.   
          In addition to the evidence reviewed above, the following evidence, favorable
to Mitchell, was presented: Mitchell indicated that she cared about her daughter and
wanted custody of her; Mitchell did not herself arrange individual and group
counseling or attend parenting classes because she did not believe she could afford
such therapies; and, at the time of the termination hearing, Mitchell had successfully
entered a 90-day residential program, Mitchell had begun individual and group
counseling provided by the residential program she had entered, and she had been
attending parenting classes that were also provided by the residential program. 
Mitchell, however, did not dispute that she had endangered L.M. by using drugs
while pregnant, or that she continued using drugs after L.M.’s birth.  Mitchell also
admitted that the choice not to enter a 90-day program when one originally became
available was hers alone.  We find that the evidence presented was sufficient for a
factfinder to reasonably form a firm belief or conviction that termination of the
parent-child relationship was in L.M.’s best interests.        Conclusion
          We affirm the trial court’s decree. 
 

                                                             George C. Hanks, Jr.
                                                             Justice
 
Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.
