Opinion issued December 14, 2017




                                         In The

                                 Court of Appeals
                                        For The

                            First District of Texas
                              ————————————
                                 NO. 01-17-00545-CV
                              ———————————
                    IN THE INTEREST OF L.N.W., A CHILD



                     On Appeal from the 314th District Court
                             Harris County, Texas
                       Trial Court Case No. 2016-05060J



                          MEMORANDUM OPINION

       K.S. appeals from the trial court’s judgment terminating her parental rights to

her daughter, L.N.W. In one issue, K.S. contends that the evidence is factually

insufficient to support a finding that termination of her parental rights is in the child’s

best interest. We affirm.
                                      Background

      On August 8, 2016, the Department of Family and Protective Services (“the

Department”) received a referral alleging neglectful supervision of L.N.W., a two-

month old infant, by her mother, K.S., and her father, A.W.1 The referral alleged

that K.S. and A.W. have bipolar disorder and a history of marijuana use. The referral

also alleged that A.W. does not take his bipolar medication and has been violent

toward K.S.

      On August 15, 2016, the Department received a second referral alleging

neglectful supervision of L.N.W.            The referral stated that L.N.W.’s paternal

great-grandmother, Pamela Smith, had been taking care of L.N.W. since she was

born; A.W. and K.S. saw L.N.W. on August 12, 2016, despite the fact that A.W. was

not supposed to be around the infant because of his drug use and mental health

issues; and K.S was going to be hospitalized for mental health treatment.

      On September 15, 2016, the Department filed its original petition for child

protection, conservatorship, and termination of parental rights, accompanied by the

affidavit of Cassandra Warren, a Department caseworker.             In support of the

Department’s request that it be named temporary managing conservator of L.N.W.,

Warren stated that K.S. and A.W. suffered from bipolar disorder and had stopped

taking their medication; K.S. and A.W. had a history of marijuana use and the


1
      A.W. is not a party to this appeal.
                                              2
Department was concerned that K.S. was using marijuana around L.N.W; A.W. had

been violent toward K.S.; K.S. had a pending criminal case for domestic violence

(family assault) for assaulting her sister with whom she lived in violation of court

orders; and K.S. and A.W. had their parental rights to K.W., their one-year old

daughter, terminated in December 2015 on the grounds that they had engaged in

conduct endangering to the child and had failed to comply with the provisions of a

court order establishing the tasks necessary for reunification.

      In her affidavit, Warren attested as follows:

    At the beginning of her investigation, K.S. initially refused to speak with her

      and Warren called the police for assistance. Before the police arrived, Nicole

      Smith, K.S.’s mother, and Sandra Manley, K.S.’s maternal grandmother,

      arrived at the house and K.S. agreed to speak with Warren. K.S., who lived

      with her mother and sister, Sandra, told Warren that there was currently no

      domestic abuse in the home but that A.W. had previously abused her by hitting

      her when he became upset, and that much of the abuse took place when she

      was pregnant with K.W., L.N.W.’s older sibling. K.S. told Warren that she

      was no longer in a relationship with A.W. but that they continued to

      communicate every other day.

    K.S. told Warren that she was diagnosed with depression but denied being

      bipolar. She told Warren that she has not been on medication for two years

                                          3
  because she “can handle [her] depression,” and her psychiatrist said that she

  no longer needed to take it. K.S. told Warren that she sees Dr. Mark Lewis, a

  therapist at King Haven Southwest, every two weeks. She denied using drugs

  and the results of her urinalysis test conducted the next day were negative.

  Warren noted that K.S. had everything necessary to care for L.N.W. in the

  home, including a bassinet, diapers, and formula, and that L.N.W. showed no

  signs of physical abuse or neglect. Warren spoke with Nicole who denied that

  K.S. had any mental health issues. Nicole stated that K.S. had been a victim

  of A.W.’s domestic violence in the past which was one of the reasons that

  K.S. moved into Nicole’s home. Warren also spoke with K.S.’s sister, Sandra,

  a high school senior, who said that K.S. did not have any mental health issues

  and that she is an excellent mother who provides all the care for L.N.W.

 On August 15, 2016, Warren contacted the medical records department of

  King Haven Southwest and learned that K.S. was enrolled only in therapy,

  had not seen a psychiatrist, and had not received services since May 2013.

 On August 16, 2016, K.S. called Warren and told her that she was checking

  herself into West Oaks Hospital and that L.N.W. was with a family member

  but would not disclose the child’s location. Warren spoke with Pamela

  Kerr-Smith, A.W.’s grandmother, who told Warren that she has had L.N.W.

  in her care every weekend since she was born and that she was currently taking

                                     4
   care of L.N.W. Kerr-Smith told her that K.S. asked her to take care of L.N.W.

   until she could get herself together and get back on her medication.

   Kerr-Smith told Warren that K.S. and A.W. both have mental concerns that

   need to be addressed.

 On August 17, 2016, Nicole contacted Warren and told her that K.S. is not

   taking her medication and would not leave A.W. alone. Nicole told Warren

   that K.S. was diagnosed with Attention Deficit Hyperactivity Disorder and

   that she recently left Nicole’s house and said she wished Nicole was dead.

 On August 19, 2016, Warren spoke with K.S. in order to schedule a family

   team meeting. Three days later, Warren learned that K.S. had been arrested

   and charged with aggravated assault of a family member. Nicole informed

   Warren that K.S. had attempted to cut Sandra with a knife. Nicole expressed

   concern that K.S would continue to refuse to take her medication upon her

   release from jail, and Nicole wanted to speak to a judge “to ensure that they

   put something in place so [K.S.] can stay on her medication.” On September

   9, 2016, K.S. received deferred adjudication and three years’ community

   supervision for assaulting Sandra. Kerr-Smith continued to care for L.N.W.

   until K.S. was released from jail.

 On September 11, 2016, Kerr-Smith called Warren and told her that K.S. came

   to pick up L.N.W. Kerr-Smith also reported that L.N.W. received a burn to

                                        5
      her leg one week earlier, and that when K.S. saw the burn on her leg she took

      L.N.W. to the doctor.

    On September 14, 2016, L.N.W.’s family participated in a family team

      meeting. At the meeting, Nicole admitted that she had not been forthcoming

      about K.S.’s mental health or the domestic violence involving her daughter.

      K.S. disclosed that she was diagnosed with bipolar disorder as well as

      depression. L.N.W. was at the meeting and had a “burn the size of an apple .

      . . with red coloring on her right lower extremity.”

    Warren concluded that K.S. (1) was diagnosed with bipolar disorder and had

      stopped taking her medication without doctor approval; (2) was charged with

      assaulting her sister with a knife; (3) was still residing with Sandra in violation

      of the terms of her community supervision; (4) had her parental rights to K.W.

      terminated approximately six months before L.N.W. was born due to her

      mental instability and failure to complete services with the Department.

      Warren stated that K.S. was unable to provide a safe and stable environment

      for L.N.W. at this time and that she had no other viable relatives with whom

      to place L.N.W.

      On September 15, 2016, the trial court signed an order for protection of a child

in an emergency in which it found a continuing danger to L.N.W. which warranted

placing the child in the Department’s temporary managing conservatorship. On

                                           6
September 29, 2016, following a full adversary hearing, the trial court signed an

order stating that there was sufficient evidence of a danger to L.N.W.’s physical

health and safety, and that the need to protect the child warranted her immediate

removal from her parents’ care. The court named the Department as L.N.W.’s

temporary managing conservator.

      On October 3, 2016, K.S. participated in a family evaluation at the Children’s

Crisis Care Center (“4 Cs”).      K.S. denied the substance of the Department’s

allegations. In particular, she denied any substance use and stated that she has

always tried to address her mental health needs, that she complied with and

completed all of the Department’s services during her previous case, and that her

parental rights were wrongfully terminated. She acknowledged that her continued

relationship with A.W. was a concern but said that she ended the relationship with

him. She reported some history of domestic violence but she attributed A.W.’s

unfaithfulness as the cause of their relationship ending, and she did not consider the

domestic violence to be a traumatic event.

      The 4 Cs report noted a concern with “[K.S.]’s extremely low parenting

scores, which suggests that she is not fully able to conceptualize and [meet] the basic

needs of her daughter.” The report also noted that K.S. appeared “to have possible

low cognitive functioning, insufficient coping skills, and limited awareness of the

severity of the presenting issues in her life, and that her decision-making has been a

                                          7
causal factor for the removal of her children.” It was also noted that K.S. participated

in a family assessment in March 2015 in her previous case, and that “it appears that

similar issues are presenting and do not appear to have [been] addressed as

recommended from the previous assessment.” The report concluded that “[K.S.]’s

cognitive functioning in the areas of understanding risks of her domestic violence

relationship, appropriate skills for caring for a child with little support, and the

importance of stability in her life are barriers to her being able to provide a young

child with the safety, stability and protection needed.” The report recommended that

K.S. (1) participate in a psychological evaluation to determine her current level of

cognitive and mental health functioning and to make recommendations for mental

health treatment; (2) continue psychiatric services to monitor and maintain her

mental health needs and treatment; (3) attend individual counseling; (4) participate

in domestic violence treatment services; and (5) attend parenting classes to increase

her knowledge and ability to understand the needs of a child in her care.

      On November 8, 2016, the trial court held a status hearing. In a separate order,

the trial court granted the Department’s request for a finding of “aggravated

circumstances,” thereby waiving the requirement that the Department provide K.S.

with a family service plan or that it make reasonable efforts to return L.N.W. to




                                           8
K.S.’s care.2 Nonetheless, the Department prepared a family service plan for K.S.

which set as goals that K.S. (1) learn and use parenting practices that meet the

emotional and developmental needs of L.N.W.; (2) learn to exercise self-control to

provide L.N.W. with a sense of stability; and (3) demonstrate an ability to provide

basic necessities such as food, clothing, shelter, medical care, and supervision for

the child. The service plan also recommended several services to achieve these

goals.

         The State filed a motion to adjudicate guilt in K.S.’s aggravated assault case

which the trial court granted on January 19, 2017. The motion stated that K.S.

violated the terms and conditions of her community supervision by: (1) possessing

drug paraphernalia; (2) possessing duplicate identification cards; (3) failing to

participate in a substance abuse program; (4) failing to participate in a “Thinking for

a Change” program; and (5) having contact with her sister, Sandra, in violation of

the court’s protective order. K.S’s criminal case was later dismissed upon the State’s

motion.




2
         Family Code section 262.2015 lists numerous “aggravating circumstances” which
         permit a trial court to waive the requirements that the Department create a family
         service plan and that it make reasonable efforts to return the child. See TEX. FAM.
         CODE ANN. § 262.2015 (West Supp. 2017). As relevant here, one of those
         circumstances is when a parent has had her parent-child relationship terminated with
         respect to another child under section 161.001(b)(1)(E). See id.
                                              9
      On May 10, 2017, the Department filed a permanency report with the court.

In its report, the Department noted that L.N.W. had been living in a foster home

since September 14, 2016, the date on which she was removed from K.S.’s care.

The report described L.N.W. as “a happy 7 month [old] female who is placed in an

adoptive home where her sibling has already been adopted.                    L.N.W. is

developmentally on target and bonded with the current caregiver.” The report further

noted that “[t]he goal of unrelated adoption was set at the time the case was

transferred to conservatorship. There are no suitable relatives that have been

identified for placement of [L.N.W.]. [L.N.W.] is in a stable adoptive placement

w[h]ere she is able to be with her sister who has already been adopted by the family.

The agency will continue to search for suitable relatives, but at this time remaining

with her sibling in a permanent placement is in [L.N.W.]’s best interest.”

      On May 18, 2017, L.N.W.’s guardian ad litem, a Child Advocates, Inc.

volunteer, filed a report with the court stating that termination of both parents’ rights

was in L.N.W.’s best interest based on the following grounds: (1) both K.W. and

L.N.W. were brought into the Department’s care shortly after birth and within one

year of each other; (2) parental rights to K.W. were terminated; (3) neither parent

has shown any significant lifestyle changes; (4) both parents should be taking

medication for their bipolar disorder but, to the ad litem’s knowledge, both were

non-compliant; (5) both parents have a history of domestic violence; and (7) K.S.

                                           10
has been incarcerated during the case for violent behavior. The ad litem also

recommended that L.N.W. remain in her current foster placement. In support of the

recommendation, the ad litem stated that “[L.N.W.] has been in the current foster

home placement since September 14, 2016. [L.N.W.] is placed with her biological

sibling who was adopted by the current caregivers. The current caregivers are also

interested in adopti[ng L.N.W.] as well. [L.N.W.] is thriving in the home and is very

bonded to the family. All of [L.N.W.]’s needs are being met by the current

placement.”

      The bench trial began on May 23, 2017. K.S. was present at trial.3 Prior to

calling its first witness, the Department introduced numerous exhibits, which the

trial court admitted, including the following: (1) Warren’s affidavit in support of

removal; (2) the September 15, 2016 emergency order; (3) the September 29, 2016

temporary order following adversary hearing; (4) the November 8, 2016 status

hearing order and family service plans; (5) the November 2016 order finding

“aggravated circumstances”; (6) the final decree of termination in K.W.’s case; (7)

4 Cs records; (8) West Oaks Psychiatric Hospital records; (8) K.S.’s criminal history

records; (9) Child Advocate, Inc.’s report; and (10) the May 10, 2017 permanency

report.




3
      A.W. was not present at trial.
                                         11
        Ashley Chamblee, the Department caseworker assigned to L.N.W.’s case,

testified that L.N.W. was ten months old and was living in the adoptive foster home

where she was placed when the Department initially removed her from her parents’

care.

        Chamblee detailed the facts leading to L.N.W.’s removal. She testified that

K.S. was incarcerated for assaulting her sister, Sandra. While K.S. was in jail,

L.N.W. lived with Kerr-Smith. During that time, L.N.W. sustained a burn but did

not receive any medical care until K.S. was released from jail and took her to a

doctor. Chamblee testified that K.S.’s parental rights to K.W., L.N.W.’s sister, were

terminated on the basis that she had endangered the child.

        Chamblee testified that the Department created a family service plan for K.S.

but stated that she did not receive any proof that K.S. had participated in any of the

plan’s services. Chamblee stated that L.N.W. was living with the same foster family

who had adopted K.W. following the termination of K.S.’s and A.W.’s parental

rights. Chamblee testified that termination of K.S.’s parental rights to L.N.W. was

in the child’s best interest because of K.S.’s prior history with the Department, her

mental health issues, and the fact that L.N.W. was living in a stable home with her

sibling.    Chamblee confirmed that K.S.’s medical records from West Oaks

Psychiatric Hospital in 2012, which were admitted at trial, reflect that K.S. expressed

a desire to kill herself and that she tried to choke herself.

                                           12
      Chamblee testified that K.S. visited L.N.W. for one hour every other week

during the pendency of the case. When asked if L.N.W. appeared to be bonded with

K.S., Chamblee responded, “We actually have to have the foster parent in the visits

with us, otherwise the child screams and screams until she almost makes herself sick.

So the only way we can have visits is if the foster parent is in the room to help the

child calm.” Chamblee stated that, to her knowledge, K.S. had never contributed

financially to L.N.W.’s care.

      Chamblee testified that K.S. was diagnosed with bipolar disorder and

depression and that these conditions have remained largely untreated. Chamblee

stated that K.S. has been in denial about her mental health issues during the pendency

of this case as well as during her previous case with the Department. When the

current case began, K.S. denied that she was on medication and that she had been

seeing a psychiatrist.

      Chamblee testified that K.S. was charged with aggravated assault of a family

member after she pulled a knife on her sister. She stated that K.S. later violated the

terms of her probation when she continued to live with her sister. Chamblee testified

that there were allegations of domestic abuse between K.S. and A.W. that occurred

prior to L.N.W.’s birth, and that K.S. remained with A.W. despite the violence.

Chamblee stated that L.N.W. was exceedingly well taken care of in her current foster

home and that she was living with her biological sister.

                                         13
      Chamblee testified that Nicole was not considered a viable placement for

L.N.W. because, for a significant period of time during the pendency of the case,

K.S. was living with Nicole and her sister despite the fact that Nicole knew it violated

the terms of K.S.’s probation. Chamblee further stated that Nicole appeared to be

in denial about K.S.’s mental health issues, and provided conflicting information

about the domestic violence in K.S.’s relationship with A.W. Chamblee confirmed

that Nicole was participating in the care of K.W. when K.W. was removed due to

medical neglect, and that Nicole failed to be protect the child. For these reasons,

Nicole was not considered as a possible placement for L.N.W.

      LaToya Porter, the Child Advocate volunteer, worked on the case since

October 2016. She agreed with the Department’s goal to terminate K.S.’s parental

rights and stated that termination of K.S.’s parental rights was in L.N.W.’s best

interest because K.S. failed to show any significant change in her circumstances

since L.N.W. was placed in the Department’s care, and L.N.W. was living in an

adoptive home with her biological sibling.

      Nicole filed an intervention in the case requesting that L.N.W. be placed with

her. At trial, Nicole testified that K.S. lived with her but moved out when she went

to jail for assaulting her sister, and then later moved in with Nicole’s mother. Nicole

denied telling Chamblee that K.S. and A.W. did not have problems in their

relationship. She testified that they do, in fact, have problems, and that she would

                                          14
be willing to protect L.N.W. from those problems. Nicole testified that she does not

like A.W. and that he has a drug problem. She further testified that she did not think

K.S. and A.W. should be around L.N.W. “until they get on their medication.” She

denied that K.S. has a drug problem; rather, she thinks her problem is “being with

[A.W.]” and not taking her medication.

      At the conclusion of the hearing, the Department requested termination of

K.S.’s and A.W.’s parental rights under subsection (M) of Family Code section

161.001(b)(1) and that the court maintain L.N.W.’s current placement. The attorney

ad litem for L.N.W. concurred with the Department’s request. The trial court granted

the Department’s request, approved L.N.W.’s foster placement, and appointed the

Department as L.N.W.’s sole managing conservator. On June 22, 2017, the trial

court signed its final decree of termination, in which it listed section

161.001(b)(1)(M)4 as the basis for terminating K.S.’s parental rights, and found that



4
      As relevant here, section 161.001(b)(1) states that the court may order termination
      of the parent-child relationship if the court finds by clear and convincing evidence,
      in addition to the best interest finding, that the parent has:
                                          ....
             (M) had his or her parent-child relationship terminated with
             respect to another child based on a finding that the parent’s
             conduct was in violation of Paragraph (D) or (E) or
             substantially equivalent provisions of the law of another
             state[.]

TEX. FAM. CODE ANN. § 161.001(b)(1)(M) (West 2014).

                                           15
termination of parental rights was in L.N.W.’s best interest.5     This timely appeal

followed.

                                     Discussion

      K.S. acknowledges that the evidence is sufficient to support the predicate

finding under Family Code section 161.001(b)(1)(M) and does not challenge that

finding on appeal. She also concedes that the evidence is legally sufficient to support

the trial court’s finding that termination was in L.N.W.’s best interest. In her sole

issue, K.S. argues that the evidence is factually insufficient to support the trial

court’s best interest finding.

      A. Burden of Proof and Standard of Review

      Protection of the best interest of the child is the primary focus of the

termination proceeding in the trial court and our appellate review. See In re A.V.,

113 S .W.3d 355, 361 (Tex. 2003). A parent’s rights to “the companionship, care,

custody, and management” of his or her child is a constitutional interest “far more

precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59, 102

S.Ct. 1388, 1397 (1982); see In re M.S., 115 S.W.3d 534, 548 (Tex. 2003).

Accordingly, we strictly scrutinize termination proceedings and strictly construe the




5
      The trial court also terminated A.W.’s parental rights pursuant to section
      161.001(b)(1)(M), and found that termination was in the child’s best interest.
                                          16
involuntary termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d

18, 20 (Tex. 1985).

      In a case to terminate parental rights under section 161.001, the Department

must establish, by clear and convincing evidence, that (1) the parent committed one

or more of the enumerated acts or omissions justifying termination and (2)

termination is in the best interest of the child.            TEX. FAM. CODE ANN.

§ 161.001(b)(1)-(2). Clear and convincing evidence is “the measure or degree of

proof that will produce in the mind of the trier of fact a firm belief or conviction as

to the truth of the allegations sought to be established.” Id. § 101.007 (West 2014);

In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002) (quoting TEX. FAM. CODE ANN.

§ 101.0007). “Only one predicate finding under section 161.001(1)[(b)] is necessary

to support a judgment of termination when there is also a finding that termination is

in the child’s best interest.” In re A.V., 113 S.W.3d at 362.

     When conducting a factual sufficiency review, we consider and weigh all of

the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d

336, 345 (Tex. 2009). “If, in light of the entire record, the disputed evidence that a

reasonable fact finder could not have credited in favor of the finding is so significant

that a fact finder could not reasonably have formed a firm belief or conviction, then

the evidence is factually insufficient.” Id. (quoting In re J.F.C., 96 S.W.3d at 266).




                                          17
We give due deference to the fact finder’s findings and we cannot substitute our own

judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

      B. Best Interest of the Child

      There is a strong presumption that the best interest of a child is served by

keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]

2012, no pet.). 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) (West Supp. 2017).

      Courts may consider the following non-exclusive factors in reviewing the

sufficiency of the evidence to support the best interest finding: the desires of the

child; the present and future physical and emotional needs of the child; the present

and future emotional and physical danger to the child; the parental abilities of the

persons seeking custody; the programs available to assist those persons seeking

custody in promoting the best interest of the child; the plans for the child by the

individuals or agency seeking custody; the stability of the home or proposed

placement; acts or omissions of the parent which may indicate the existing

parent-child relationship is not appropriate; and any excuse for the parent’s acts or

omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). This list of factors

is not exhaustive, however, and evidence is not required on all of the factors to

                                         18
support a finding that terminating a parent’s rights is in the child’s best interest. Id.;

In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting

termination under one of the grounds listed in section 161.001(1) can also be

considered in support of a finding that termination is in the best interest of the child.

See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be

probative of both section 161.001(b)(1) grounds and best interest).

      In addition, the Texas Family Code sets out factors to be considered in

evaluating the parent’s willingness and ability to provide the child with a safe

environment, including: the child’s age and physical and mental vulnerabilities; 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; the willingness and ability of the child’s family to effect positive

environmental and personal changes within a reasonable period of time; and whether

the child’s family demonstrates adequate parenting skills, including providing the

child with minimally adequate health and nutritional care, a safe physical home

environment, and an understanding of the child’s needs and capabilities. TEX. FAM.

CODE ANN. § 263.307(b) (West Supp. 2017); In re R.R., 209 S.W.3d at 116.




                                           19
      1. Child’s Desires and Needs, and Parental Abilities of Persons Seeking
         Custody

      The first and second Holley factors consider the desires of the child and the

present and future physical and emotional needs of the child. The fourth Holley

factor looks at the parental abilities of those seeking custody of the child.

      When children are too young to express their desires, the fact finder may

consider whether the children have bonded with the proposed adoptive family, are

well cared for by them, and have spent minimal time with a parent. See In re S.R.,

452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A

child’s need for permanence through the establishment of a “stable, permanent

home” has been recognized as the paramount consideration in a best interest

determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no

pet.). Therefore, evidence about the present and future placement of the child is

relevant to the best interest determination. See In re C.H., 89 S.W.3d at 28.

      At the time of trial, K.S. was ten months old and, thus, too young to testify

about her desires. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st

Dist.] 2013, no pet.).    However, when Chamblee was asked whether L.N.W.

appeared to be bonded with K.S. during their visits every other week, she responded,

“We actually have to have the foster parent in the visits with us, otherwise the child

screams and screams until she almost makes herself sick. So the only way we can

have visits is if the foster parent is in the room to help the child calm.” The
                                          20
Department also presented evidence that L.N.W. has been in her current foster home

since shortly after her birth, she is a happy child who is very bonded to her foster

family, and she is living with her biological sibling who was previously adopted by

the family. L.N.W.’s current foster family has also expressed interest in adopting

her.

       With regard to L.N.W.’s present and future physical and emotional needs and

the parental abilities of those seeking custody of L.N.W., Warren noted during her

visit to K.S.’s home in August 2016 that K.S. had everything necessary to care for

L.N.W. in the home, including a bassinet, diapers, and formula. K.S.’s sister told

Warren that K.S. was an excellent mother who provided all the care for L.N.W.

       Chamblee testified that L.N.W. is developmentally on target, that she is

“exceedingly well taken care of” in her foster family and that all of her needs are

being met by the family, and that she is thriving in the foster placement. Chamblee

testified that, to her knowledge, K.S. had never contributed financially to L.N.W.’s

care after L.N.W. was removed.

       We may also consider the parent’s past performance as a parent in evaluating

her present abilities to provide for the child. See In re C.H., 89 S.W.3d at 28.

Although evidence of past misconduct or neglect alone may not be sufficient to show

present unfitness, a fact finder may measure a parent’s future conduct by her past

conduct indicating that it is in a child’s best interest to terminate her parental rights.

                                           21
See In re A.N.D., No. 02–12–00394–CV, 2013 WL 362753, at *2 (Tex. App.—Fort

Worth Jan. 31, 2013, no pet.) (mem. op.).

      Here, the record shows that K.S.’s parental rights to her one-year old daughter,

K.W., were terminated approximately six months before L.N.W. was born, based on

the trial court’s finding that K.S. had engaged in conduct which endangered the

physical or emotional well-being of the child.         See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(E). In a report filed with the court shortly before trial, the Child

Advocate volunteer stated that K.S. had not shown any significant lifestyle changes

since her parental rights to K.W. were terminated. The 4 Cs report also noted that

K.S. had participated in a family assessment in her previous case but that “it appears

that similar issues are presenting and do not appear to have [been] addressed as

recommended from the previous assessment.” The report noted a concern with

“[K.S.]’s extremely low parenting scores, suggesting that she is not fully able to

conceptualize and [meet] the basic needs of her daughter.” The report also stated

that “[K.S.]’s cognitive functioning in the areas of understanding risks of her

domestic violence relationship, appropriate skills for caring for a child with little

support, and the importance of stability in her life are barriers to her being able to

provide a young child with the safety, stability and protection needed.”

      This evidence supports the trial court’s best interest finding under the first,

second, and fourth Holley factors. See also TEX. FAM. CODE ANN. § 263.307(b)

                                         22
(listing child’s age, child’s physical and mental vulnerabilities, and parent’s

understanding of child’s needs and capabilities among factors to be considered in

determining whether child’s parents are willing and able to provide child with safe

environment).

      2. Plans for the Child and Stability of Home or Proposed Placement

      The sixth Holley factor considers the plans for the child by the individuals or

agency seeking custody. The seventh factor looks at the stability of the home or

proposed placement.

      Stability and permanence are paramount in the upbringing of children. In re

T.R.M., No. 14-14-00773-CV, 2015 WL 1062171, at *7 (Tex. App.—Houston [14th

Dist.] Mar. 10, 2015, no pet.) (mem. op.); In re T.D.C., 91 S.W.3d 865, 873 (Tex.

App.—Fort Worth 2002, pet. denied). “Without stability, income, or a home, [a

parent] is unable to provide for the child’s emotional and physical needs” and the

parent’s instability “threatens the physical well-being of the child and may put the

child at risk.” In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no

pet.). A parent’s failure to show that she is stable enough to parent a child for any

prolonged period entitles the trial court “to determine that this pattern would likely

continue and that permanency could only be achieved through termination and

adoption.” In re B.S.W., No. 14–04–00496–CV, 2004 WL 2964015, at *9 (Tex.

App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.).

                                         23
      In support of her assertion that she has a stable home for L.N.W., K.S. points

to the 4 Cs report stating that she lived with Manley, her grandmother, in October

2016, seven months before trial. However, there was no evidence presented at trial

showing that she still lived there or that Manley expressed the desire or ability to

take L.N.W. into her home. Chamblee testified that she did not know where K.S.

was living at the time of trial. In August 2016, Kerr-Smith told Warren that K.S.

had left L.N.W. in her care every weekend since she was born, and that K.S. later

asked her to take care of L.N.W. until she could get herself together and get back on

her medication. There was no evidence showing that K.S. was employed or how she

intended to support L.N.W. Chamblee testified that, to her knowledge, K.S. had

never contributed financially to L.N.W.’s care. The 4 Cs report also noted that

“[K.S.]’s cognitive functioning in the areas of understanding risks of her domestic

violence relationship, appropriate skills for caring for a child with little support, and

the importance of stability in her life are barriers to her being able to provide a young

child with the safety, stability and protection needed.” Chamblee testified that

L.N.W.’s current foster family, with whom L.N.W. has lived since she was born,

expressed interest in adopting L.N.W., and that she is exceedingly well cared for in

her current foster placement. This evidence supports the trial court’s best interest

finding under the sixth and seventh Holley factors. See also TEX. FAM. CODE ANN.




                                           24
§ 263.307(b) (listing safe physical home environment as factor to be considered in

determining best interest of child).

      3. Endangering Conduct and Parental Acts or Omissions

      The third Holley factor examines the present and future emotional and

physical danger to the child. Holley, 544 S.W.2d at 371–72. The eighth factor

considers acts or omissions of the parent that indicate the parent-child relationship

is improper. Id.

      Mental illness alone is not grounds for terminating the parent-child

relationship. In re S.R., 452 S.W.3d 351, 363 (Tex. App.—Houston [14th Dist.]

2014, pet. denied); Maxwell v. Tex. Dep’t of Family & Protective Servs., No. 03–

11–00242–CV, 2012 WL 987787, at *9 (Tex. App.—Austin Mar. 23, 2012, no pet.)

(mem. op.). Untreated mental illness, however, can expose a child to endangerment

and is a factor the court may consider. See Maxwell, 2012 WL 987787, at *10; In

re L.L.F., No. 02–11–00485–CV, 2012 WL 2923291, at *15 (Tex. App.—Fort

Worth July 19, 2012, no pet.) (mem. op.) (considering parent’s failure to take

medication to treat mental health issues as factor in creating environment that

endangers child’s emotional or physical well-being); In re J.I.T.P., 99 S.W.3d 841,

845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (considering parent’s mental

health and noncompliance with her medication schedule as factors endangering

child).

                                         25
      Here, the record reflects that K.S. has mental health issues that remained

largely untreated during the pendency of the case. K.S. was diagnosed with bipolar

disorder and depression but initially denied having bipolar disorder. K.S. told

Warren that she has not been on medication for two years because she “can handle

[her] depression,” and her psychiatrist said that she longer needed to take it.

Although K.S. told Warren that she saw a therapist at King Haven Southwest every

two weeks, K.S.’s medical records reflected that K.S. had not received services there

since May 2013.

      The record also shows that, at the beginning of the case, K.S. called Warren

and told her that she was going to check herself into West Oak Hospital and asked

Kerr-Smith to take care of L.N.W. until she could get back on her medication.

Nicole also told Warren that K.S. was not taking her medication. Chamblee testified

that K.S. has been in denial about her mental health issues during the pendency of

this case as well as during her previous case with the Department. K.S.’s medical

records from West Oaks Psychiatric Hospital include an initial psychiatric

evaluation in 2012 in which the evaluating physician noted that K.S. had expressed

a desire to kill herself. Further, the Department’s service plan as well as the 4 Cs

evaluation recommended that K.S. participate in a mental health assessment and

continue with services to monitor and maintain her mental health needs and

treatment. K.S. never provided proof to the Department that she had attempted to

                                         26
do any of the services outlined in her service plan. The evidence of K.S. failure to

comply with services to improve her mental health is a factor that the trial court

could have considered in finding that she engaged in a course of conduct that

endangered the physical and emotional well-being of L.N.W. See id. at 845–46

(finding mother’s suicidal thoughts and history of noncompliance with medication

schedule relevant to endangerment and best interest analysis); see also Liu v. Dep’t

of Family & Protective Servs., 273 S.W.3d 785, 798 (Tex. App.—Houston [1st Dist.]

2008, no pet.) (considering mother’s mental health issues, hospitalizations, violent

history, and noncompliance with medications in concluding termination was in

child’s best interest).

       The evidence also reflects that K.S. was convicted of misdemeanor assault in

2012, for which she was sentenced to three days in jail. See In re O.N.H., 401

S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (noting parent’s past

conduct is probative of her future conduct when evaluating child’s best interest). In

2016, while this case was pending, K.S. was convicted of aggravated assault–family

member for threatening her sister with a knife. In re T.G.R.-M., 404 S.W.3d 7, 14

(Tex. App.—Houston [1st Dist.] 2013, no pet.) (stating that one factor that may

contribute to environment that endangers child’s well-being is parent’s violent

criminal conduct); In re J.I.T.P., 99 S.W.3d at 845 (noting that parent’s violent

conduct can produce home environment that endangers child’s well-being).

                                         27
      The evidence also shows that K.S. had been in an abusive relationship with

A.W. K.S. told Warren that there was currently no domestic abuse in the home but

that A.W. had previously abused her by hitting her when he became upset and that

much of the abuse took place when she was pregnant with K.W. K.S. told Warren

that she was no longer in a relationship with A.W. but that they continue to

communicate every other day. K.S. also acknowledged during her 4 Cs evaluation

that her continued relationship with A.W. was a concern but said that she ended the

relationship with him. The report noted, however, that K.S. did not consider the

domestic violence to be a traumatic event, and she attributed A.W.’s unfaithfulness

as the cause of their relationship ending. At trial, Nicole testified that K.S.’s problem

is “being with [A.W.]” and not taking her medication. See Sylvia M. v. Dallas Cty.

Welfare Unit, 771 S.W.2d 198, 201, 204 (Tex. App.—Dallas 1989, no writ) (finding

evidence of endangerment, including “volatile and chaotic” marriage, altercation

during pregnancy, and mother’s repeated reconciliation with abusive spouse,

supported termination of parental rights). The evidence of untreated mental issues,

violent conduct, and domestic abuse supports the trial court’s best interest finding

under the third and eighth Holley factors.

      In light of the entire record, the disputed evidence that a reasonable fact finder

could not have credited in favor of the best interest finding is not so significant that

a fact finder could not reasonably have formed a firm belief or conviction that

                                           28
termination of K.S.’s parental rights is in L.N.W.’s best interest. See In re H.R.M.,

209 S.W.3d at 108. After considering the relevant factors under the appropriate

standards of review, we hold that the evidence is factually sufficient to support the

trial court’s finding that termination of the parent-child relationship is in the child’s

best interest. Accordingly, we overrule K.S.’s issue.

                                      Conclusion

      We affirm the trial court’s judgment.




                                                Russell Lloyd
                                                Justice

Panel consists of Justices Higley, Massengale, and Lloyd.




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