                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00283-CV
                             ____________________

          IN THE INTEREST OF G.L.K., M.R.T., AND E.A.M.
_________________________________          ______________________

                On Appeal from the 418th District Court
                      Montgomery County, Texas
                    Trial Cause No. 12-10-10853 CV
____________________________________________                        ____________

                         MEMORANDUM OPINION

      The trial court terminated the mother’s (appellant) parental rights to G.L.K.,

M.R.T., and E.A.M. In this accelerated appeal, appellant presents four issues

challenging the legal and factual sufficiency of the evidence to support

termination. See Tex. Fam. Code Ann. § 263.405 (West 2014). We affirm the trial

court’s judgment.

                                   Background

      On August 11, 2012, Deputy Brad Kennelly first encountered appellant

when she reported her brother missing. Kennelly testified that appellant was

sweating and shaking, which caused Kennelly initially to suspect that appellant

                                         1
might be under the influence of a drug or other intoxicant; however, appellant

calmed down once an ambulance arrived. On August 25, Kennelly conducted a

welfare check at appellant’s home. Kennelly testified that the children were clean

and healthy, appellant was lucid and normal, and the house was “lived in.”

      Caseworker Jennifer Leteff testified that on September 23, the Department

received allegations that appellant was abusing medication and distributing drugs,

four-year-old E.A.M. had accused M.R.T. of molestation, and appellant was

leaving the children home alone. According to Victoria Matthews, appellant’s

neighbor and the children’s babysitter, appellant often left the children alone, and

the two older children stayed home from school so E.A.M. would not be alone.

Appellant testified that she regretted leaving the children alone and denied that she

frequently did so. She testified that her brother lived with her and was always

home when she left the children. Regarding E.A.M.’s accusations against M.R.T.,

appellant told Leteff and Cynthia Mandel, a court-appointed advocate, that the

family attended counseling to address the issue. Appellant testified that she and the

children attended counseling until she could no longer afford the sessions.

Appellant also told Mandel and Amber Evans, a conservatorship caseworker, that

she clothed E.A.M. in one-piece outfits to prevent further molestation. Regarding




                                         2
the drug allegations, Leteff testified that appellant denied abusing drugs. The

Department ruled out medical neglect and the case was dismissed.

      Kennelly went to appellant’s home a third time when P.S., the man who was

renting the home for appellant, accused E.A.M.’s father of fraud. P.S. expressed

concern about drug use occurring in the home. On October 7, Kennelly stopped

appellant’s vehicle for a tail light violation. E.A.M.’s father was driving and

appellant was the passenger. E.A.M.’s father was arrested on a warrant related to

P.S.’s fraud claim. Although Kennelly smelled marihuana in the vehicle, he

testified that the amount of marihuana seeds and stems found inside the vehicle did

not constitute a usable amount.

      On October 11, the Department learned that M.R.T. and E.A.M. had been

left home alone. Appellant testified that she left the children because she had a

work appointment that she was unable to cancel and she assumed the children

would go to Matthews’s home. Kennelly testified that appellant was arrested for

child abandonment and endangerment and submitted to a field drug test, the results

of which concerned Leteff. The Department removed the children on October 12.

On October 15, officers responded to a disturbance at appellant’s home. The

disturbance was called in by the alleged victim, a man neighbors suspected to be a

drug dealer; however Kennelly was unable to confirm that suspicion. On

                                        3
November 18, after appellant vacated the home, police were alerted to a syringe

found in the home.

      Leteff testified that the Department had investigated appellant on three

previous occasions, one of which resulted in removal. According to Leteff,

substance abuse was a main issue in the removal case, but the children were

eventually returned to appellant. Appellant admitted that she was previously

arrested for drug possession and the Department became involved. She enrolled in

and completed the Success Through Addiction Recovery program, the children

were returned, and the case was dismissed. Leteff testified that a 2011 case for

negligent supervision was ruled out.

      Mandel testified that appellant admitted abusing prescription medication and

self-medicating with cocaine and Lorcet. Appellant testified that she used up to

thirty prescription pills per day, and began using methamphetamine in June 2012.

Evans testified that appellant told her that when she is not on her medication, she

self medicates with methamphetamine. Appellant told Mandel that she once took

thirty Lorcet and passed out at a table in a restaurant with her children present.

Matthews testified that G.L.K. once gave appellant some money from a garage

sale, and he told Matthews that appellant probably bought drugs with the money.

According to Mandel, appellant also carried a knife, which she contended was for

                                        4
her protection and which she admitted taking to visitation with the children.

Appellant told Mandel that she feared for her life. One evening, appellant

contacted Mandel because she believed people were using electronics to try to

control her. Appellant also texted Mandel a photo of a gun and claimed she no

longer wanted to live. J.K., appellant’s father, recalled instances when he was

contacted about appellant’s out-of-control behavior. Appellant testified that she

was never suicidal or homicidal.

      In April 2013, appellant was being transferred to a psychiatric facility but

was arrested when methamphetamine was found in her pocket. Appellant testified

that she had not been using methamphetamine and did not know the bag was in her

pocket. She was arrested and released on bond. J.K. testified that appellant was

subsequently arrested for failure to stay in contact with her bail bondsman. Evans

testified that appellant is on probation for drug possession and child endangerment

and has been arrested three or four times since the case began. Appellant testified

that she went to jail on two occasions for failing to check in with her probation

officer. She also admitted recently being charged with criminal mischief for an

offense that occurred during an altercation with E.A.M.’s father in 2013.

      Evans testified that appellant lied about performing services with the

Houston Council, a drug and alcohol prevention and support services provider, but

                                         5
did participate in outpatient therapy. She also testified that appellant never tested

positive for methamphetamine. Mandel testified that E.A.M.’s father claimed to

have taught appellant how to cheat drug tests and that appellant admitted that she

knows how to cheat a drug test, but has never done so. However, mother also

testified that she would not fake a drug test and was not taught how to mask a drug

test.

        Mandel testified that appellant had lived in seven different places over the

past year and a half. Appellant testified that she lived at the Value Place for

approximately five months and had qualified for a two-bedroom apartment and

paid a deposit. She testified that she can afford the monthly rent and is prepared to

sign a thirteen-month lease. She admitted that the Value Place may not be a “great

environment[,]” but testified that it is stable and she has lived there for five months

and paid her rent every week.

        Susan Lee, appellant’s former counselor, testified that appellant was initially

confused and in a lot of pain, but could communicate succinctly. Appellant told

Lee that she had been physically and sexually abused, has a history of substance

abuse, had used meth, and had been arrested for possession of methamphetamine.

During counseling, Lee saw appellant become more responsible and independent.

Lee testified that appellant did not exhibit behavior that led Lee to believe that

                                           6
appellant was on any illegal substance. Lee believed appellant had begun to

understand how the past had impacted her poor decisions, grieved the impact of

her decisions on the children, and wanted the best for the children. She testified

that appellant is in the initial stages of recovery and self-growth, had made

significant progress in a short time, and that behavioral therapy is a long process.

Lee believed that appellant is dedicated and capable of doing the necessary work to

complete the process.

      Dr. James Wright, a psychiatrist, testified that he diagnosed appellant with

bipolar II disorder and attention deficit hyperactivity disorder when she sought his

help for depression, anxiety, and difficulty concentrating. Appellant testified that

she takes Adderall and Latuda daily. Appellant testified that she is taking her

medication properly and no longer has issues with self-medication. Wright

believed that appellant was taking her medication appropriately and is stable.

Evans expressed concern that appellant, who struggles with methamphetamine

usage, takes medication containing amphetamines.

      J.K. testified that appellant is a new person and is following through with her

promises. He testified that appellant found a job, paid her rent, and was promoted

to manager. R.G., appellant’s Alcoholics Anonymous sponsor, testified that

appellant is in the fourth step of the twelve-step program and has been sober for

                                         7
eight months. She acknowledged that appellant had to restart the program once or

twice, but she believed appellant would succeed. She testified that appellant has

grown physically, mentally, and spiritually, and is taking control of her addiction

and her life. Appellant testified that she last smoked marihuana in 2013, has been

sober since September 2013, and no longer wanted to change her feelings with

mind-altering substances. J.K. testified that appellant felt guilty and sad over the

loss of the children. He admitted that appellant has down days, but that he was

helping her through it.

      Appellant explained that, after losing the children, she lived with a man and

the relationship was detrimental to her participation in services ordered by the

Department. Appellant testified that she struggled mentally and found it difficult to

maintain a positive attitude. She testified that she is now performing community

service, participating in weekly counseling, and attends classes in parenting, abuse

recovery and anger management. She also attends Alcoholics Anonymous

meetings. Appellant testified that she has worked in a salon for six months. Mandel

testified that appellant was participating in services and taking steps to improve her

situation and life. Evans testified that appellant had been seeing a counselor,

attending visitation with the children, and participating in parenting classes. During

the visits Evans supervised, was not impaired and she demonstrated a good and

                                          8
loving relationship with the children. Evans testified that appellant had shown

through her employment that she can provide for and support the children.

      Regarding the children, Mandel testified that M.R.T. initially suffered from

bed wetting and defecating on himself. Mandel later learned that appellant once

had a relationship with a child sex offender, but appellant claimed the offender

would never touch her children. Evans testified that M.R.T. was hospitalized

because of erratic behavior and suicidal ideation. Mandel testified that M.R.T. is

now articulate, nice, smart, and responsible. She testified that G.L.K. was once

reserved, serious, and struggled to make friends, but is now funny, talkative, and

outgoing. Matthews testified that E.A.M. had sucked her thumb and talked like a

baby at four years old. According to Evans and Mandel, E.A.M. had speech

problems, but is doing well, her speech is improving, and she likes being with her

aunt. Mandel testified that the children’s current placements had helped them with

reading, writing, and emotional stability. Appellant testified that the children have

adapted well and are doing great. She wanted the children to stay together and

believed her aunt in Michigan would provide a good home for all three children.

Evans, however, testified that it was not possible to have all three children placed

together.




                                         9
      Evans explained that the Department’s plan for M.R.T. and G.L.K. would be

adoption and that if all approval processes are completed, they will live with their

aunt in Michigan. Evans admitted that G.L.K. and M.R.T. had voiced a desire to

have a relationship with appellant and that not having a relationship could be

devastating to the two children. She believed it would be in their best interest to

have contact with appellant and that contact is permissible with a relative adoption.

G.L.K. and M.R.T. were excited when Mandel mentioned the possibility of

moving to Michigan to live with their aunt, but wanted to be able to maintain

contact with appellant. Mandel believed the aunt in Michigan would allow

appellant to visit with and contact M.R.T. and G.L.K.

      Evans testified that E.A.M. had been placed with her paternal aunt and the

Department desired that she be adopted by the aunt. E.A.M. had also expressed a

desire to see appellant. E.A.M. told Mandel that she is comfortable, has friends,

and wants to stay with her aunt. Evans believed the aunt could provide long term

stable care. Appellant testified that E.A.M.’s placement is meeting her physical

needs and is stable.

      J.K. believed it would be a mistake to terminate appellant’s rights because

appellant loves the children, is aware of her mistakes, and wants the children. He

believed it is in the children’s best interest to be with appellant, but he admitted

                                         10
that she was unable to take the children at the time of trial. Matthews testified that

the children love appellant. She acknowledged that appellant’s actions had been

neglectful, but she believed that appellant should get another chance as long as she

is not using drugs. She believed a safe home where all three children could be

together was best for them. Lee testified that appellant cares deeply for the children

and realizes that their safety and welfare is a priority. She believed appellant is on

the road to being able to care for the children and she saw no reason for

termination. Lee approved of a situation in which the children are placed with

relatives and able to stay in contact with appellant. R.G. testified that appellant

talks with the children and teaches them, is a good mother, does not yell at the

children, and has instilled values. She testified that the children are the most

important people in appellant’s life and the children feel the same about appellant.

She believed the children would be devastated if appellant’s rights are terminated.

      Appellant testified that the children need her, she can do better because she

has improved mentally, physically, and spiritually, and she can provide the

children with a safe and stable environment. She recognized her addiction,

wrongdoings, and faults, and she testified that she has no concern about relapsing.

She testified that the children need to know where they came from and it would be

detrimental for her rights to be terminated. She believed the children need

                                         11
consistency and that the mere possibility that she may be able to visit with the

children if her rights are terminated is unacceptable. She testified she is willing to

do whatever is necessary for her children and that she loves them. Although she

did not believe that it was in the children’s best interest that she assume their care

at the time of the hearing, she did not believe that termination was in their best

interest. She testified that she is willing to pay child support and abide by the terms

of possession and access if named possessory conservator.

      Leteff opined that the children were in immediate danger in appellant’s

home. She expressed concern that the children were left alone without proper

resources, one child had made an outcry against the other, and appellant had tested

positive on a field drug test. Mandel testified that appellant endangered the

children by leaving them home alone because anything can happen when children

are left alone. Evans admitted that appellant appeared willing and able to do what

is necessary for the children and had recently demonstrated stability regarding her

sobriety, employment, and individual counseling. However, Evans testified that, to

recommend reunification, she needed to see a long-term pattern of stability. She

credited appellant for doing well recently, but was concerned with appellant’s

pattern of criminal activity, psychiatric issues, drug possession, and involvement




                                          12
with the judicial system. Evans also expressed concern that if appellant stopped

taking her medication, it would have a detrimental effect on her parenting ability.

      Evans admitted that termination is not the only option, as the trial court

could enter a conservatorship order that ensured the children’s protection and gave

appellant visitation rights. She believed termination to be in the children’s best

interest because the children need a home that is stable, drug free, and crime free,

has ample food and supervision, and has stable caregivers, which Evans did not

believe appellant could provide. Evans doubted whether appellant would continue

doing what is necessary once she is no longer under the Department’s scrutiny. She

opined that appellant has not proven her ability to maintain stability and sobriety

for long periods of time and that her inability to do so would physically and

emotionally harm the children, undermine her ability to meet their needs, and

would place the children in physical or emotional danger. Mandel also

recommended termination because she believed that for the children’s long-term

safety, they needed to be in a stable home environment in which they would have

no fear of being taken again and they could have a relationship with appellant.

      M.R.T. told the trial court that he wanted to continue living with his foster

family, but that if he could not live with them, he would like to live with his aunt in

Michigan. He gave no third choice. He told the trial court that he would like to be

                                          13
able to visit with appellant. G.L.K. could not give the trial court his first choice,

but identified appellant and his aunt in Michigan as the options. He too wanted to

be able to visit with appellant.

      The trial court terminated appellant’s rights on grounds that appellant (1)

knowingly placed or knowingly allowed the children to remain in conditions or

surroundings that endanger their physical or emotional well-being; (2) engaged in

conduct or knowingly placed the children with persons who engage in conduct that

endangers the children’s physical or emotional well-being; and (3) failed to comply

with the provisions of a court order that established the actions necessary for

appellant to obtain return of the children. See Tex. Fam. Code Ann. §

161.001(1)(D), (E), (O) (West 2014). The trial court also found that termination

was in the children’s best interest. See id. § 161.001(2).

                            Legal and Factual Sufficiency

      In issues one through three, appellant contends the evidence is legally and

factually insufficient to support the trial court’s findings that termination is proper

under Texas Family Code section 161.001(1)(D), (E), and (O). In issue four,

appellant challenges the trial court’s finding that termination is in the children’s

best interest. To challenge the factual sufficiency of the evidence supporting a jury

finding, the appealing party must have first asserted the point in a motion for new

                                          14
trial. Tex. R. Civ. P. 324(b)(2); In the Interest of M.S., 115 S.W.3d 534, 547 (Tex.

2003). To preserve a legal sufficiency challenge for appeal, the appealing party

must have asserted the point by (1) a motion for instructed verdict, (2) a motion for

judgment notwithstanding the verdict, (3) an objection to the submission of the

issue to the jury, (4) a motion to disregard the jury’s answer to a vital fact issue, or

(5) a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991).

      The record does not indicate that appellant filed a proper motion or lodged a

proper objection raising her sufficiency challenges. See Tex. R. Civ. P. 324(b)(2);

see also M.S., 115 S.W.3d at 547; Cecil, 804 S.W.2d at 510-11. “Appointed

counsel’s unexcused failure to preserve a valid sufficiency point for appellate

review may constitute ineffective assistance of counsel in a termination case.” In

the Interest of C.T., No. 09-11-00694-CV, 2012 Tex. App. LEXIS 2485, at *3

(Tex. App.—Beaumont Mar. 29, 2012, no pet.) (mem. op.). Appellant does not

argue ineffective assistance of counsel, and counsel is not automatically ineffective

for failing to preserve the issues. See id. If counsel could have reasonably believed

the evidence to be sufficient, counsel’s performance does not fall below an

objective standard of reasonableness merely because the verdict was not

challenged. Id.




                                          15
      Under legal sufficiency review, we review all the evidence in the light most

favorable to the finding to determine whether “a reasonable trier of fact could have

formed a firm belief or conviction that its finding was true.” In the Interest of

J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could and we

disregard all evidence that a reasonable factfinder could have disbelieved or found

incredible. Id. If no reasonable factfinder could form a firm belief or conviction

that the matter that must be proven is true, the evidence is legally insufficient. Id.

      Under factual sufficiency review, we must “give due consideration to

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

convincing.” Id. We “consider whether disputed evidence is such that a reasonable

factfinder could not have resolved that disputed evidence in favor of its finding.”

Id. “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, the

evidence is factually insufficient.” Id.

      The decision to terminate parental rights must be supported by clear and

convincing evidence, i.e., “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

                                           16
sought to be established.” Tex. Fam. Code Ann. § 101.007 (West 2014); In the

Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the

parent committed one or more predicate acts or omissions and that termination is in

the child’s best interest. See Tex. Fam. Code Ann. § 161.001; see also J.L., 163

S.W.3d at 84. A judgment will be affirmed if the evidence supporting any one of

the grounds is legally and factually sufficient and the evidence supporting the best

interest finding is also legally and factually sufficient. In the Interest of C.A.C., No.

09-10-00477-CV, 2011 Tex. App. LEXIS 3385, at *2 (Tex. App.—Beaumont May

5, 2011, no pet.) (mem. op.).

      Section 161.001(1)(D) allows for termination if the trial court finds by clear

and convincing evidence that the parent has “knowingly placed or knowingly

allowed the child to remain in conditions or surroundings which endanger the

physical or emotional well-being of the child[.]” Tex. Fam. Code Ann. §

161.001(1)(D). The “endangerment analysis focuses on the evidence of the child’s

physical environment, although the environment produced by the conduct of the

parents bears on the determination of whether the child’s surroundings threaten his

well-being.” Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st

Dist.] 2010, pet. denied). Regarding the children’s best interest, we consider a non-

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

                                           17
of the child now and in the future; (3) emotional and physical danger to the child

now and in the future; (4) parental abilities of the individuals seeking custody; (5)

programs available to assist these individuals to promote the best interest of the

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

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

which may indicate that the existing parent-child relationship is not proper; and (9)

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

367, 371-72 (Tex. 1976); see Tex. Fam. Code. Ann. § 263.307(b) (West 2014).

      A parent’s conduct in the home, such as illegal drug use, can create an

environment that endangers a child’s physical and emotional well-being. In the

Interest of R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied);

In the Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no

pet.). In this case, the trial court heard evidence that appellant has a history of

abusing illegal and prescription drugs, such conduct occurred in the children’s

presence, at least G.L.K. was aware of appellant’s drug use, and appellant has been

arrested for drug-related offenses. The trial court also heard evidence that appellant

had been diagnosed with mental disorders, spent time in a psychiatric hospital, and

expressed suicidal and paranoid ideations. The trial court could consider




                                         18
appellant’s mental state, including suicidal threats, when determining whether the

children were endangered. See R.W., 129 S.W.3d at 739.

      Additionally, the trial court heard evidence that appellant has a history with

the Department, including a prior removal, has been arrested on several occasions,

exposed her children to a convicted sex offender, had unhealthy and at times

abusive relationships, and had lived in several locations from the time of the

children’s removal until the start of the trial. The State presented testimony that

appellant left the children home without supervision and proper resources, even

after E.A.M. claimed that she was molested by M.R.T. Conduct subjecting a child

to a life of uncertainty and instability endangers the child’s physical and emotional

well-being. R.W., 129 S.W.3d at 739.

      The trial court could reasonably conclude that appellant’s conduct created an

environment that endangers the children’s physical and emotional well-being and

could infer from this past endangering conduct that similar conduct would recur if

the children were returned to appellant. See In the Interest of M.R.J.M., 280

S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.); see also J.T.G., 121

S.W.3d at 125. The trial court could reasonably have formed a firm belief or

conviction that appellant knowingly placed or knowingly allowed the children to

remain in conditions or surroundings which endangered their physical or emotional

                                         19
well-being. See Tex. Fam. Code Ann. § 161.001(1)(D). We overrule issue one and

need not address issues two and three challenging termination pursuant to section

161.001(E) and (O). See C.A.C., 2011 Tex. App. LEXIS 3385, at *2; see also Tex.

R. App. P. 47.1.

      The evidence also supports the trial court’s finding that termination is in the

children’s best interest. According to the record, M.R.T. claimed to have been

sexually abused and he struggled with bed wetting, behavioral problems, and

suicidal thoughts, such that he had to be hospitalized. G.L.K. was withdrawn and

struggled to make friends. E.A.M. sucked her thumb and struggled with speech

problems. The trial court heard evidence that the children have improved in their

current placements and are doing well.

      The Department planned to place M.R.T. and G.L.K. with their maternal

aunt in Michigan and heard evidence that the two children were excited about this

prospect. The Department planned to have E.A.M. adopted by her paternal aunt

and the trial court heard testimony that E.A.M. wanted to remain with her aunt.

The record demonstrates that the children desired to maintain a relationship with

appellant and that maintaining a relationship with appellant is both in the

children’s best interest and possible with relative adoptions.




                                          20
      J.K., appellant, and R.G. did not believe that termination was in the

children’s best interest. However, J.K. and appellant both testified that appellant

was not yet ready to assume responsibility for the children’s care. Moreover, Lee

testified that appellant is on the road to being able to care for the children and that

behavioral therapy is a long process. Evans, Leteff, and Mandel believed

termination to be in the children’s best interest because of appellant’s criminal

history, substance abuse, instability, and failure to adequately supervise the

children. When asked with whom they wanted to live, M.R.T. and G.L.K. did not

identify appellant as a choice.

      “[T]he prompt and permanent placement of the child in a safe environment

is presumed to be in the child’s best interest.” Tex. Fam. Code Ann. § 263.307(a)

(West 2014). As the sole judge of the witnesses’ credibility and the weight to be

given their testimony, the trial could reasonably conclude that appellant was unable

to provide such an environment for the children. The trial court could reasonably

have formed a firm belief or conviction that termination of appellant’s parental

rights was in the children’s best interest. See id. §§ 161.001(2), 263.307(b); see

also J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72. We conclude that the

Department established, by clear and convincing evidence, that appellant

committed the predicate act enumerated in section 161.001(1)(D) and that

                                          21
termination is in the children’s best interest. See Tex. Fam. Code Ann. § 161.001.

We overrule issue four and affirm the trial court’s judgment.

      AFFIRMED.

                                             ___________________________
                                                  STEVE McKEITHEN
                                                       Chief Justice

Submitted on October 23, 2014
Opinion Delivered December 11, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.




                                        22
