                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00333-CV


IN THE INTEREST C.L.D. AND
C.R.D., CHILDREN




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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      Appellant A.B. (Mother) appeals the trial court’s judgment terminating her

parental rights to her two children, C.L.D. and C.R.D.2 After a bench trial, the trial

court found that Mother had engaged in conduct or knowingly placed the children
      1
       See Tex. R. App. P. 47.4.
      2
       The trial court also terminated the parental rights of C.D. (Father), but
Father has not appealed the judgment.
with persons who had engaged in conduct that endangered the physical or

emotional well-being of the children and had knowingly placed or knowingly

allowed the children to remain in conditions or surroundings that endangered

their physical or emotional well-being.3 The trial court also found that termination

of Mother’s parental rights would be in the children’s best interest. In her sole

issue, Mother argues that the evidence is legally and factually insufficient to

support the trial court’s best interest finding. Mother does not challenge the trial

court’s statutory endangerment findings. We affirm.

                                 II. Background

       Mother had a Department of Family and Protective Services (the

Department) referral in January 2007 concerning her oldest child.4 Mother was

“extremely intoxicated” and began fighting with her mother, who called the police.

When police arrived, Mother’s hands were bleeding, and the police report stated

that Mother had shaken her child and broken several windows in the home. The

Department learned in January 2007 that Mother had been diagnosed with major

depression and bipolar disorder; Mother was not taking her medication, and she

“admitted to drinking to intoxication.” In March 2007, Mother was arrested for

striking her boyfriend’s child while intoxicated. Mother was later convicted for

injury to a child.

       3
        See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2012).
       4
       Mother’s parental rights to her oldest child are not at issue in this appeal;
she voluntarily relinquished her parental rights to that child in 2008.


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      In April 2007, the Department received a referral that Mother had her

oldest child with her and was about to walk onto Interstate 30 in Arlington to kill

herself. Mother told the investigator that she was not holding her child while

walking on I-30, but the Department believed otherwise because Mother’s

boyfriend had arrived and was able to get their child off the highway and away

from Mother. Mother remained on the highway until police arrived.

      Mother attempted suicide in June 2007 while in jail. She was in and out of

jail throughout 2007 and 2008, and she received Mental Health/Mental

Retardation (MHMR) services while in jail.       After leaving jail in March 2008,

Mother voluntarily relinquished her parental rights to her oldest child.

      In December 2008, Mother gave birth to C.L.D.           The Department was

concerned about Mother’s drinking and her mental health stability, and Mother

began working with an MHMR doctor soon thereafter. However, the Department

received a new referral in March 2009 concerning Mother’s drinking.

      The Department offered services to Mother and provided transportation for

her to work the services. Mother submitted to a drug and alcohol assessment

and admitted that she had a drinking problem, and she made “quite a bit of

progress” on her service plan during April and May 2009. She began attending a

rehabilitation program and taking her depression medication.

      Mother relapsed in June 2009. She agreed in July 2009 to attend a ninety-

day, inpatient drug and alcohol program and to bring C.L.D. with her to the

program, but Mother stayed for only about thirty days. Even so, Mother had


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worked several parts of her service plan, had located an apartment, and was

showing signs of improvement by early-Fall 2009. By November 2009, Mother

seemed to be staying away from drugs and alcohol, and the pending case was

closed in December 2009.

      In June 2010, Mother drank alcohol while eight months pregnant with

C.R.D.   Mother told an investigator that she would drink alcohol because of

arguments with Father and because “she just wanted to have a good time.” In

October 2010, police were called to Mother and Father’s apartment because they

had gotten into a fight. When interviewed later about the October 2010 incident,

Mother said that neither child was in the apartment, that she was upset with

Father for selling drugs, and that Father punched her in the side of her head.

Mother also said that she pulled a knife to defend herself from Father.

      The apartment complex management decided to evict Mother from her

apartment the day after her altercation with Father, and apartment manager

Edna Garcia went to Mother’s apartment with another manager to serve her with

an eviction notice. Garcia testified that she and the other manager could hear a

baby screaming inside the apartment. They knocked numerous times “really,

really hard,” but no one answered. They retrieved a key to Mother’s apartment,

entered the apartment, and saw Mother asleep on a mattress on the floor. There

was an infant, C.R.D., next to her screaming. C.L.D., who appeared to Garcia to

be fifteen to seventeen months old, was also in the apartment eating infant

formula out of a can, with crusted milk all in his mouth and his hands. Garcia


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testified that she had a very difficult time waking Mother and that Mother

appeared to be “high on drugs” when she finally awoke.        The Department

removed the children the same day.

      Department caseworker Abigail Flores developed a service plan for Mother

in November 2010 that required Mother to submit to drug and psychological

assessments and to attend individual counseling and domestic violence

counseling.   The service plan also required that Mother address her mental

health issues with services provided by MHMR because Mother had reported to

Flores that she heard voices. Through MHMR, Mother would have access to

psychiatrists, medication management, and social workers. Flores testified that

Mother only made one phone call to MHMR two months before trial and did not

otherwise engage with MHMR.

      Flores testified that she provided Mother with bus passes to help her

attend her appointments. Mother submitted to a psychological assessment but

did not submit to a drug assessment. Mother passed each of her drug tests

during the case and completed parenting classes, but she attended only one of

twelve domestic violence counseling sessions.     Mother was also discharged

several times from individual counseling for nonattendance, 5 and she failed to

maintain stable housing during the pendency of the case.



      5
      The Department referred Mother to Positive Influences for individual
counseling. Mother was discharged after missing the first three appointments.
The Department made three additional attempts to have Mother attend

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      Flores testified that Mother’s interaction with the children is appropriate,

that she brings them things during visitations, and that she is bonded to the

children. However, Mother missed the last few visitations before trial. Flores

testified that Mother had not shown that she could take advantage of the services

available to her, and she estimated that Mother completed twenty-five to thirty

percent of her service plan. Flores also testified that termination of Mother’s

parental rights is in the children’s best interest.

      Mother’s father testified that he will support Mother and that she has not

been drinking the past three or four months. He testified that he will take her to

appointments, but he agreed that he cannot force Mother to work her services.

He also agreed that Mother needs help through MHMR and that she is not an

appropriate parent when she is drinking, but he also testified that termination of

Mother’s parental rights is not in the children’s best interest.

      The children are together in foster care, and they have been in their

current foster home for approximately five months. Flores said that the children

are bonded to each other and that C.L.D. will console C.R.D. when C.R.D. is

upset or needs something.        Neither child has any developmental needs that

require special therapeutic intervention, but Early Childhood Intervention

specialists recently advised Flores that they intended to begin speech therapy

with C.L.D.

counseling through Positive Influences, but Mother was discharged each time for
nonattendance.


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      Flores testified that the children are doing really well in the foster home

and that the current foster parents intend to adopt the children if Mother’s

parental rights are terminated. C.L.D. has become more open and verbal; he

was “really reserved and really quiet” when he was initially placed in foster care,

and he is “kind of coming out of that.” C.R.D. “is attached. He’s closer to the

foster mom. When she’s not inside, they look for her.”          Flores testified that

C.R.D. often sits in the foster mother’s lap or very near her. Flores also positively

described the children’s interactions with the foster father.      Flores listed the

subsidies and services that will be available to the foster parents if they adopt the

children.

                            III. Standards 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 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


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child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 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 R.R., 294 S.W.3d 213, 233 (Tex.

App.—Fort Worth 2009, 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); In

re D.T., 34 S.W.3d 625, 629 (Tex. App.—Fort Worth 2000, pet. denied) (op. on

reh’g).   In this case, Mother does not challenge the trial court’s section

161.001(1)(D) and (E) findings. Thus, we only address the sufficiency of the

evidence concerning the trial court’s best interest finding.

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001; see also id. § 161.206(a). 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 (West 2008).         Due process demands this heightened standard

because termination results in permanent, irrevocable changes for the parent


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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).

       In evaluating the evidence for legal sufficiency in parental termination

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

reasonably form a firm belief or conviction that the grounds for termination were

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

evidence in the light most favorable to the finding and judgment. Id. We resolve

any disputed facts in favor of the finding if a reasonable factfinder could have

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

disbelieved. Id. We consider undisputed evidence even if it is contrary to the

finding.   Id.   That is, we consider evidence favorable to termination if a

reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id.

       We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,

574. And even when credibility issues appear in the appellate record, we defer

to the factfinder’s determinations as long as they are not unreasonable. Id. at

573.

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

the factfinder’s findings and do not supplant the judgment with our own. In re

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


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

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

child. Tex. Fam. Code Ann. § 161.001; 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.

                                   IV. Best Interest

      Mother argues in her sole issue that the evidence is legally and factually

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

rights is in the children’s best interest.

A. Applicable Law

      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) (West 2008).

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;


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

      (E)      the programs available to assist these individuals to promote
               the best interest of the child;

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

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

      (H)      the acts or omissions of the parent which may indicate that the
               existing parent-child relationship is not a proper one; and

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

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).

      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.

B. Discussion

      At the time of trial in August 2011, C.L.D. was two years old, and C.R.D.

was one year old. The children are too young to have expressed their desires,

but the evidence reflects that they have a bond with Mother.                Even so, the

children are doing well in foster care. C.L.D. was scheduled to begin speech

therapy, but the children do not otherwise have developmental needs that require

special therapeutic intervention.      The children have bonded with their foster

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parents, particularly their foster mother, and C.L.D. has changed away from the

reserved and quiet manner he exhibited upon placement in foster care. The

Department’s plan for the children is adoption by their current foster family, and

the trial court heard testimony about the propriety of the foster family and the

programs and services that will be available to the foster family after adoption.

         In contrast, Mother has a history of mental health problems and instability,

including incidents of violence with her oldest child, her mother, and Father;

striking her boyfriend’s child; attempting suicide; and drinking alcohol to extreme

intoxication. The Department attempted to work with Mother beginning in 2007,

and although Mother made progress during certain intervals, she had completed

less than half of the services offered to her during the year before the termination

trial.   Although Mother had completed parenting classes, Flores testified that

Mother had not demonstrated an ability to take advantage of the services

available to her.

         Applying the appropriate standards of review, we hold that the evidence is

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

Mother’s parental rights is in the children’s best interest.         See H.R.M., 209

S.W.3d at 108 (discussing factual sufficiency standard of review); J.P.B., 180

S.W.3d at 573 (discussing legal sufficiency standard of review). We therefore

overrule Mother’s sole issue.

                                    V. Conclusion

         Having overruled Mother’s sole issue, we affirm the trial court’s judgment.


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                                        ANNE GARDNER
                                        JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: July 26, 2012




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