                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-125-CV


IN THE INTEREST OF S.A.G.,
E.J.G., AND N.S.G., CHILDREN


                                    ------------

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                  Introduction

      Appellant A.G. appeals the trial court’s order terminating her parental

rights to her children S.A.G., E.J.G., and N.S.G. 2 In two points, A.G. contends

that the evidence presented at trial was legally and factually insufficient to

support two of the trial court’s three statutory termination findings and was



      1
           See Tex. R. App. P. 47.4.
      2
        To protect the privacy of the parents and children involved in this
appeal, we identify them by initials only. See Tex. R. App. P. 9.8(b); Tex. Fam.
Code Ann. § 109.002(d) (Vernon 2008).
factually insufficient to prove that termination of the parent-child relationship

was   in   the   children’s   best   interests.    See   Tex.   Fam.   Code   Ann.

§ 161.001(1)(D), (E), (M) & (2) (Vernon Supp. 2009). We affirm.

                                Background Facts

      Appellant A.G. (Mother) is the biological mother, and her husband C.S.G.

(Father) is the presumed biological father, of S.A.G., E.J.G., and N.S.G., the

three children who are the subject of this suit. Mother and Father were married

on March 20, 2005. Daughter S.A.G. was born on August 18, 2005, son

E.J.G. was born on June 8, 2006, and son N.S.G. was born on September 22,

2008, after this suit had been filed.

      In March 2008, the Texas Department of Family and Protective Services

(the Department) received allegations that Mother and Father had neglectfully

supervised and physically abused S.A.G. and E.J.G. A Department caseworker

investigated and observed S.A.G. and E.J.G. strapped to and hanging over their

high chairs, screaming and crying. Mother admitted to the caseworker that she

had left both children in their high chairs while she and Father slept and that

she has screamed and cursed at the children. Mother told the caseworker that

she was not able to care for S.A.G. and E.J.G. at their current ages but that

she was able to take care of babies.          Mother was the children’s sole care




                                          2
provider for six to eight hours per day while Father worked outside the home

as a driver and helper at Pizza Hut.

      Mother’s extensive history with the Department began when she was a

child. In 1988, Mother was removed from her mother and placed in foster care

after being physically abused by her mother and sexually abused by her

mother’s boyfriends. Mother became involved with the Department in 2000

regarding her own children. In November 2003, a court involuntarily terminated

Mother’s parental rights to her third child, born in April 2003, based on child

endangerment findings under Texas Family Code section 161.001(1)(D), (E),

and (N). Mother testified that she was dealing with “mental issues” at the

time, was not taking her medications, and alternated between living on the

streets and in her own apartment.

      The Department removed S.A.G. and E.J.G. from Mother and Father’s

home, placed them in foster care, and filed suit in April 2008 for the children’s

protection, for temporary managing conservatorship, and for termination of

Mother’s and Father’s parental rights.

      In September 2008, N.S.G. was born prematurely at thirty-three weeks.

The Department became involved with N.S.G. because S.A.G. and E.J.G. had

been removed and due to concerns about Mother’s abuse of prescription




                                         3
medications. At the time, Mother was taking hydrocodone 3 every four to six

hours for back pain and Tegretol for her seizure and bipolar disorders. During

the investigation, Mother reported that a nurse had been concerned with her

abuse of hydrocodone during her pregnancy, but Mother denied the abuse.

Mother also stated that Tegretol caused sleepiness, and that she planned to use

a baby monitor to hear the baby crying and an alarm clock to time her naps

while the baby was sleeping.     Also during the Department’s investigation,

Mother admitted that she and others called law enforcement to her home

approximately twenty to thirty times due to arguments with her husband,

among other reasons.

       At the end of its investigation regarding N.S.G., the Department found

reason to believe the allegation of neglectful supervision but ruled out the

allegation of physical neglect. The Department amended its petition regarding

S.A.G. and E.J.G. to add N.S.G. Upon Father’s motion, the trial court ordered

S.A.G., E.J.G., and N.S.G. placed with the children’s paternal grandmother,

M.L.



       3
        We take judicial notice that hydrocodone is “a potent analgesic
derivative of codeine.” Stedman’s Medical Dictionary 911 (28th ed. 2006); see
Tex. R. Evid. 201(b), (c) (stating that a court may take judicial notice of
adjudicative facts, including facts that are “not subject to reasonable dispute”
in that they are “capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned”).

                                       4
      In June 2008, the trial court approved and adopted the Department’s

service plan for Mother and Father. Under the service plan, Mother and Father

were required to maintain safe and appropriate housing, submit to a screening

conducted by the Texas Mental Health and Mental Retardation (MHMR)

Department and follow all recommendations from the screening, attend couples’

counseling sessions and parenting classes, submit to random drug screenings,

participate in a psychological evaluation and follow all recommendations from

the evaluation, and visit the children weekly.

      Child Protective Services (CPS) ongoing caseworker Elizabeth Bowlen

reviewed Mother’s service plan with her on multiple occasions.       Although

Mother began parenting classes, she did not complete them because she was

unable to make her appointments while in the hospital giving birth to N.S.G.

Mother completed her MHMR screening and MHMR made no recommendations.

Mother and Father maintained safe and appropriate housing.          They both

attended couples’ counseling sessions and submitted to random drug screenings

when requested and no illegal drug use was indicated. Mother also participated

in a psychological evaluation as required under her service plan. Following the

psychological evaluation, Bowlen met with Mother and encouraged her to

continue to attend therapy to address issues surrounding the abuse and neglect

Mother experienced as a child and to address anger management issues.

                                       5
      In November 2008, after N.S.G.’s birth, Mother told Bowlen on two

separate occasions that she might want to relinquish her parental rights to the

children because she did not think that she could care for them.         Mother

maintained her opposition to termination, however, based on her belief that she

and her children deserved to be together as a family. Also in November 2008,

Mother called Bowlen stating that she had sought help with postpartum

depression at the Women’s Center but that the doctor would not prescribe her

medication.

      On February 9, 2009, approximately one month before trial, Mother

sought treatment at Parkland Hospital in Dallas after being referred there by her

neurologist.   At Parkland, she was told that her blackouts were caused by

psychotic episodes, not epilepsy as previously diagnosed. After receiving this

revised diagnosis, Mother thought about taking her life by driving Father’s car

into the river but changed her mind because she loved her children and believed

they and Father needed her.      Mother did not seek mental health services

following her thoughts of suicide, and she disagreed with the diagnosis that she

was suffering from depression at the time of trial.

      This case was tried to the bench on March 10, 2009. The evidence

indicated that, in addition to the diagnosis of having blackouts caused by

psychotic episodes, Mother previously had been diagnosed with bipolar

                                       6
disorder, sleep disorder, depression accompanied by thoughts of suicide,

scoliosis, asthma, high blood pressure, a heart murmur, and seizures. At the

time of trial Mother was taking Cymbalta for depression and bipolar disorder,

Ambian CR for a sleep disorder, Albuterol for asthma, and high blood pressure

medication. Mother testified that she had been prescribed Tegretol and Keppra

for seizures in the past but that she no longer was diagnosed with a seizure

disorder and was no longer taking seizure medication. Mother also had taken

prescription   hydrocodone,   Ibuprofen,   Tylenol,   and   Excedrin   for   pain

management, Zoloft, Paxil, Depakote, Dilantin, and Pulmicort.

      Father testified that Mother’s IQ is not very high. 4    Mother admitted

problems with memory lapses, but she did not recall when they began. She

stated that her memory problems did not affect her parenting and that she has

never forgotten to feed her children or change their diapers. Mother reported

becoming agitated during her psychological evaluation because she was not

able to remember instructions and perform the assigned tasks.

      Mother admitted that she experienced blackouts, but disagreed with the

diagnosis that they were caused by psychotic episodes. She did not recall

blacking out while caring for S.A.G. and E.J.G. by herself. Mother also testified



      4
        No evidence was introduced regarding the administration of any formal
IQ testing or any such test’s results.

                                       7
that she only knew when she had blacked out if Father told her, and that

otherwise she was not aware of blacking out in the past. Mother stated that

her blackout spells would not impact her ability to take care of her three

children because she would be able to rely upon Father’s support.

      Mother testified that she has been depressed in the past and that she had

fallen short as a parent due to her depression; specifically, she had yelled and

cussed at her children. Mother testified that she was working on this issue and

doing better.

      Mother denied abusing prescription drugs, stating that she always took

her medication as prescribed. She testified that she had a history of taking

hydrocodone as frequently as every four to six hours for back pain. Mother

admitted that, in the months before trial, she had obtained more than three

prescriptions for hydrocodone for her back pain and finished a one-month

supply of hydrocodone in fifteen days. Mother also stated that she discussed

this case with her family physician, and he stated that they would “lower [her]

medication to where [she is] more stable enough to care for the children” if they

were returned to her.

      Father never knew Mother to harm the children and had no concerns

about her ability to provide for their physical needs. He stated, however, that

he thought she was in need of counseling for depression as recently as one

                                       8
month before trial. Father also stated that, if the children were returned to him

and Mother, he would seek help from a nanny so that they can work

themselves back into caring for small children. Mother also told the court that

she would prefer to have a nanny with her when her husband was at work.

         At trial, the Department also introduced a certified copy of the November

2003 order of termination of Mother’s parental rights to her third-born child,

K.L.J.        Mother’s rights to K.L.J. were terminated involuntarily upon court

findings that Mother had knowingly placed or knowingly allowed her to remain

in conditions or surroundings which endangered her physical or emotional

well-being, engaged in conduct or knowingly placed her with persons who

engaged in conduct which endangered her physical or emotional well-being, and

constructively abandoned her. 5 See Tex. Fam. Code Ann. § 161.001(1)(D), (E),

& (N) (Vernon 2008 & Supp. 2009).

         At the end of this trial, the court terminated Mother’s parental relationship

with the children. 6 The trial court found that Mother (1) knowingly placed or

knowingly allowed the children to remain in conditions or surroundings which



         5
        In March 2002, Mother voluntarily relinquished her rights to her first
child, born in November 2000. In December 2002, Mother voluntarily
relinquished her rights to her second child, born in April 2002, because Mother
did not think that she could meet the child’s daily needs.
         6
              The trial court did not terminate Father’s parental rights.

                                             9
endangered their physical or emotional well-being, (2) engaged in conduct or

knowingly placed the children with persons who engaged in conduct which

endangered their physical or emotional well-being, and (3) had previously had

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

an   adverse   finding   regarding    these    previous   two   standards.     Id.

§ 161.001(1)(D), (E), & (M). The court also found that termination of Mother’s

parental relationship with the children was in their best interests.           Id.

§ 161.001(2). The court named the Department managing conservator, Father

joint possessory conservator with right of reasonable access and possession,

and M.L. and C.L. (Father’s parents) joint possessory conservators with primary

right of possession. The trial court also ordered Father, M.L., and C.L. not to

allow Mother to have contact with the children or allow the children to enter

Father’s residence while he resided with Mother.          Mother timely filed this

appeal.

                               Standard of Review

      A   parent’s   rights   to   “the   companionship,    care,   custody,   and

management” of his or her children are constitutional interests “far more

precious than any property right.”         Santosky v. Kramer, 455 U.S. 745,

758–59, 102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547

(Tex. 2003). “While parental rights are of constitutional magnitude, they are

                                          10
not absolute. Just as it is imperative for courts to recognize the constitutional

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

and physical interests of the child not be sacrificed merely to preserve that

right.” In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). 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 for the child’s right to inherit. Tex.

Fam. Code Ann. § 161.206(b) (Vernon 2008); Holick v. Smith, 685 S.W.2d 18,

20 (Tex. 1985). We strictly scrutinize termination proceedings and strictly

construe involuntary termination statutes in favor of the parent. Holick, 685

S.W.2d at 20–21; In re M.C.T., 250 S.W.3d 161, 167 (Tex. App.—Fort Worth

2008, no pet.).

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination

is in the best interest of the child. Tex. Fam. Code Ann. § 161.001; 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).

                                        11
      Termination decisions must be supported by clear and convincing

evidence.   Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (Vernon 2008).

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 allegations sought to be

established.”    Id. § 101.007 (Vernon 2008).       Due process demands this

heightened standard because termination results in permanent, irrevocable

changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex.

2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting

standards for termination and modification).

                                 Endangerment

      In her first issue, Mother contends that the evidence is legally and

factually insufficient to support the trial court’s endangerment findings under

subsections 161.001(1)(D) and (E) of the Texas Family Code.

      Along with a best interest finding, a finding of only one ground alleged

under family code section 161.001(1) is sufficient to support a judgment of

termination.    In re E.M.N., 221 S.W.3d 815, 821 (Tex. App.—Fort Worth

2007, no pet.).      Although Mother appeals the court’s findings under

subsections (D) and (E), she fails to challenge its finding under subsection (M)

that her parental rights to a different child had previously been terminated under

subsection (D) or (E). The record includes a certified copy of the November 25,

                                       12
2003, Order of Termination of Mother’s parental rights to K.L.J., the children’s

half-sister, based on endangerment findings under subsections (D), (E), and (N).

Therefore, we hold that the trial court had a legally sufficient basis to support

termination under section 161.001(1)(M), and we need not address Mothers’

challenge to the findings under (D) and (E). See Fletcher v. Dep’t of Family &

Protective Servs., 277 S.W.3d 58, 64 (Tex. App.—Houston [1st Dist.] 2009,

no pet.); see also In re B.K.D., 131 S.W.3d 10, 16 (Tex. App.—Fort Worth

2003, pet. denied) (explaining that “to be successful on appeal, the appellant

must establish that the . . . findings on all of the [Department’s] pleaded

grounds are unsupported by the evidence”); Green v. Tex. Dep’t of Protective

& Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.—El Paso 2000, no pet.)

(holding that, because the appellant “failed to challenge the legal or factual

sufficiency of the evidence with regard to [one of the statutory provisions], the

first element of involuntary termination c[ould] be affirmed based on th[at]

provision”). We overrule Mother’s first issue.

                         Best Interests of the Children

      In her second issue, Mother contends that the evidence is factually

insufficient to support the trial court’s finding that termination of her parental

rights was in the children’s the best interests under subsection 161.001(2) of

the Texas Family Code.

                                       13
Factual Sufficiency Review

      In reviewing the evidence for factual sufficiency, we must give due

deference to the factfinder’s findings and not supplant the judgment with our

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

whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that the parent violated at least one conduct provision of

section 161.001(1) and that the termination of the parent-child relationship

would be in the best interest of the child. Tex. Fam. Code Ann. § 161.001;

C.H., 89 S.W.3d at 28. 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.

Best Interest Factors

      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). Prompt

and permanent placement of the child in a safe environment is also presumed

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

2008). The following factors should be considered in evaluating the parent’s

willingness and ability to provide the child with a safe environment:

                                        14
      (1) the child’s age and physical and mental vulnerabilities;

      (2) the frequency and nature of out-of-home placements;

      (3) the magnitude, frequency, and circumstances of the harm
to the child;

       (4) whether the child has been the victim of repeated harm
after the initial report and intervention by the department or other
agency;

       (5) whether the child is fearful of living in or returning to the
child’s home;

      (6) the results of psychiatric, psychological, or developmental
evaluations of the child, the child’s parents, other family members,
or others who have access to the child’s home;

       (7) whether there is a history of abusive or assaultive
conduct by the child’s family or others who have access to the
child’s home;

       (8) whether there is a history of substance abuse by the
child’s family or others who have access to the child’s home;

       (9) whether the perpetrator of the harm to the child is
identified;

      (10) the willingness and ability of the child’s family to seek
out, accept, and complete counseling services and to cooperate
with and facilitate an appropriate agency’s close supervision;

       (11) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a reasonable
period of time;

      (12) whether the child’s family demonstrates adequate
parenting skills, including providing the child and other children
under the family’s care with:

                                  15
                  (A) minimally adequate health and nutritional care;

                  (B) care, nurturance, and appropriate discipline
            consistent with the child’s physical and psychological
            development;

                  (C) guidance and supervision consistent with the child’s
            safety;

                  (D) a safe physical home environment;

                 (E) protection from repeated exposure to violence even
            though the violence may not be directed at the child; and

                 (F) an understanding        of the    child’s   needs   and
            capabilities; and

            (13) whether an adequate social support system consisting
      of an extended family and friends is available to the child.

Id. § 263.307(b); R.R., 209 S.W.3d at 116.

      Other, nonexclusive factors that the trier of fact in a termination case

may 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;



                                        16
      (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).

      These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate. 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.

      Although termination may not be based solely on the best interest of the

child as determined by the trier of fact, Boyd, 727 S.W.2d at 533, the same

evidence may prove both a subsection 161.001(1) endangerment finding and

a finding under subsection 161.001(2) that termination is in the best interest

of the child. C.H., 89 S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001.




                                        17
Analysis

Mother’s parental abilities

        CPS caseworker Bowlen testified that Mother and Father’s “physical

house    was   safe   and     appropriate.”   See   Tex.   Fam.   Code   Ann.   §

263.307(b)(12)(D) (considering a parent’s ability to provide a “safe physical

home environment”).     Father testified that he thought Mother was an able

parent, he never knew Mother to harm their children, and he had no concerns

about her ability to provide for their physical needs. He handled most of the

cooking, he and Mother shared responsibilities for washing and bathing the

children, and Mother was disciplined about washing their clothes, sterilizing

their bottles, and measuring their bottles.

        However, evidence indicates that Mother did not demonstrate adequate

parenting skills. See id. § 263.307(b)(12); Holley, 544 S.W.2d at 371–72.

Mother has a past history of not being able to provide her children with a safe

environment, as established by the termination of her parental rights to another

child based on endangerment and abandonment findings.               Mother also

voluntarily relinquished her parental rights to her first two children, in one

instance because she did not think that she could meet the child’s daily needs.

Additionally, Mother’s recent history establishes that her parental abilities are

deficient, including her use of hydrocodone more frequently than prescribed and

                                         18
the fact that she told a Department caseworker that she had left both children

in their high chairs while she and Father slept, that she screamed and cursed

at the children, and that she was not able to care for S.A.G. and E.J.G. at their

current ages.

      Mother also failed to take steps toward improving her parenting skills by

completing the parenting classes required under her service plan. According to

Father, Mother’s pregnancy with N.S.G. prevented her from attending the

classes. Neither Father nor Mother, however, offered any reason why Mother

was not able to resume and complete parenting classes in the months between

N.S.G.’s birth and the trial date.

Emotional and physical needs of and danger to the children

      Mother admitted to having blackouts but stated that her blackouts would

not impact her ability to take care of her three children. However, the trial

court reasonably could have concluded that Mother had blacked out while

acting as the children’s sole care giver and that these occurrences put the

children in danger.

      Mother told the court that she had thought about committing suicide in

the weeks before trial. She also admitted that she was depressed in the past

and that she yelled and cussed at S.A.G. and E.J.G. while dealing with her

depression. Mother told the court that she was working on her yelling and

                                       19
cussing and doing better. Father testified that Mother sometimes cussed when

frustrated at the children but he did not think Mother had a “serious” anger

management problem.

      Mother also had an ongoing pattern of memory problems that impacted

her parenting in the past. Mother told the court that there were a “lot of times”

when Father reminded her of things she seemed to have forgotten.            She

testified, however, that she has never forgotten to feed her children or change

their diapers when wet and that she did not remember experiencing any

problems remembering things regarding her care for S.A.G. and E.J.G. Yet

Mother voluntarily relinquished parental rights to her second-born child, J.J.,

after she “accidently forgot” to give him medication. More recently, Mother

admitted that she became agitated and frustrated during her psychological

evaluation because she was not able to remember the instructions given and

perform the tasks assigned.

      Mother denied abusing prescription drugs. However, she told the court

that she had a history of taking hydrocodone as frequently as every four to six

hours for back pain; that, in the months before trial, she had obtained more

than three prescriptions for hydrocodone for her back pain; and that she

finished one prescription for a month’s supply of hydrocodone in fifteen days.




                                       20
Mother also reported that a nurse talked to her about concerns that Mother

abused hydrocodone while pregnant with N.S.G.

      Mother contends that there was no evidence introduced at trial that

S.A.G., E.J.G., or N.S.G. were harmed by her or as a result of her mental health

issues. The evidence indicated, however, that Mother’s blackouts, thoughts of

suicide, depression, memory problems, and prescription drug use hindered her

ability to care for the emotional and physical needs of, and posed emotional and

physical danger to, the children now and in the future. See Holley, 544 S.W.2d

371–72; see also In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston

[14th Dist.] 2003, no pet.) (“[T]he trial court could have considered [the

mother’s] mental state [recurrent depression, thoughts of hurting herself,

borderline personality disorder, post-traumatic stress disorder, attention deficit

hyperactivity disorder, and seizures] as endangering [the child’s] well-being.”);

In re C.D., 664 S.W.2d 851, 853 (Tex. App.—Fort Worth 1984, no writ)

(“While mental incompetence or mental illness alone are not grounds for

termination of the parent-child relationship, when a parent’s mental state allows

him to engage in conduct which endangers the physical or emotional well-being

of the child, that conduct has bearing on the advisability of terminating the

parent’s rights.”); In re E.A.W.S., No. 02-06-00031-CV, 2006 WL 3525367,

at *18 (Tex. App.—Fort Worth Dec. 7, 2006, pet. denied) (mem. op.) (holding

                                       21
that mother’s “instances of mental instability and agitation, including

threatening behavior and suicidal ideation” supported termination).

Any excuse for Mother’s acts or omissions and Mother’s willingness and ability

to effect positive environmental and personal changes

      Mother did not offer any evidence by way of an excuse for her acts or

omissions, stating on appeal that her mental condition is involuntary.      See

Holley, 544 S.W.2d 372. Mother did not offer any excuse for her history of

failing to seek or accept assistance for her mental health condition and

repeatedly   discounting   the   harm   her mental condition   posed   to   her

children. See id.

      Mother has a history of refusing help for her mental condition.

Approximately one year before trial, Mother declined mental health services and

medication offered by Adult Protective Services (APS). At trial, Mother stated

that she declined APS’s offer because she did not feel that she would benefit

from the services provided, but that she later had come to regret that decision

and that she “probably” had problems seeing after her own needs.

      Mother also showed a pattern of minimizing the severity of her own

mental condition.   She stated that she did not believe she suffered from

“psychotic spells” despite receiving that diagnosis approximately one month

before trial. And, although Mother contemplated suicide in the weeks before

                                        22
trial, she said that she did not seek professional medical attention afterward

because, in her words, “I’ve been told I’m crazy and I’m not.” Mother denied

that she suffered from depression at the time of trial.

      Mother also minimized the harm that her mental health condition had on

the care she was able to provide her children. She denied the possibility of ever

blacking out while the children were in her care. Even though she admitted to

memory problems, Mother testified that she did not remember experiencing any

problems remembering things regarding her care for S.A.G. and E.J.G. and that

she never forgot to feed her children or change their diapers when wet.

      Testimony established that Mother had taken some steps to address her

mental health condition. At the time of trial, Mother was taking her depression,

bipolar, and sleep disorder medication as prescribed and had attended therapy

sessions as part of her service plan. But Mother did not accept that she was

depressed at the time of trial, did not seek help after contemplating suicide less

than one month before trial, did not accept that her blackouts were caused by

psychotic episodes as diagnosed, and did not take steps to address the danger

posed to her children in the event she blacked out while caring for them.

Accordingly, evidence supported the conclusion that Mother was unwilling and

unable to effect positive environmental and personal changes regarding her

mental health and parenting. See Tex. Fam. Code Ann. § 263.307(b)(11).

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Children’s desires

      The children were three years, two years, and five months old at the time

of the termination trial and did not specifically express their desires. Testimony

at trial indicated that the older two children had bonded with Mother and that

Mother was working toward building a bond with the youngest, N.S.G., despite

the fact that they never lived together.

Stability of the home

      Evidence indicated that Mother was not able to offer the children a stable

home until after receiving adequate mental health care.         CPS caseworker

Bowlen testified without objection that Mother had not yet worked through

issues of her own abuse and neglect as a child, that Mother could not take care

of small children without twenty-four-hour help, and that, if Mother’s parental

rights were not terminated, she still probably would need “many years to work

through a lot of her childhood issues” before being able to care for the children.

Plans for the children

      Father thought that, if the children were returned to him and Mother, they

would seek help from a nanny so that they could work themselves back into

caring for small children. Mother similarly testified that she would prefer to

have a nanny with her when she cared for the children while Father was at

work. Father stated that they were able to afford paying a nanny $100 to

                                       24
$150 per week; Father earned approximately $470 per week in wages plus

tips.

        The Department planned to have the children’s paternal grandparents,

M.L. and C.L., eventually adopt all three children. M.L. had agreed to take early

retirement to care for them. Mother herself recommended that M.L. adopt the

children if Mother could not keep them, stating that M.L. is a “very good person

and she’s been doing it.” Father also preferred that the children be placed with

M.L. if they could not be returned to him, and he was confident that M.L. was

doing a good job with them.

Our holding

        On the entire record and considering Mother’s history of blackouts, her

rejection of the diagnosis that they are caused by psychotic episodes, her denial

that she ever blacked out while caring for her children, and her failure to

address the danger to her children in the event she blacks out while they are in

her care; Mother’s depression and thoughts of suicide less than one month

before trial, her failure to seek medical attention for depression and suicidal

thoughts thereafter, her refusal to accept the diagnosis that she was suffering

from depression at the time of trial, and the testimony from CPS caseworker

Bowlen that Mother may not be able to care for her children for some time even

if she diligently works toward addressing her mental health issues; and the

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children’s need for stability and the stability offered by the Department’s plans

for the children to be adopted by their paternal grandparents, we conclude that

the trial court could have reasonably formed a firm belief or conviction that

termination of Mother’s parental rights was in the children’s best interests.

Giving due deference to the trial court’s determination, we hold that the

evidence is factually sufficient to support the trial court’s judgment that

termination of Mother’s parental rights was in the children’s best interests. See

C.H., 89 S.W.3d at 28. We overrule Mother's second issue.

                                  Conclusion

      Having overruled both of Mother’s issues on appeal, we affirm the trial

court’s order terminating Mother’s parental rights to S.A.G., E.J.G., and N.S.G.




                                            TERRIE LIVINGSTON
                                            JUSTICE


PANEL: LIVINGSTON, GARDNER, and MEIER, JJ.

DELIVERED: March 18, 2010




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