                              NUMBER 13-13-00309-CV

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


                      IN THE INTEREST OF J.K.K.B., A CHILD


                 On appeal from the County Court at Law No. 5
                          of Nueces County, Texas.


                              MEMORANDUM OPINION

               Before Justices Benavides, Perkes, and Longoria
                   Memorandum Opinion by Justice Perkes
       Following a bench trial, the trial court terminated K.S.’s (“Mother”) parental rights to

J.K.K.B.1 By one issue, Mother argues the evidence is legally and factually insufficient to

support the finding that termination of her parental rights is in the best interest of J.K.K.B.

We affirm.




       1
          In termination of parental rights appeals, we use aliases to protect the minor’s identity. See
TEX. R. APP. P. 9.8.
                                     I. BACKGROUND

       J.K.K.B. lived alone with her father.          After her father attempted suicide, the

Department of Family and Protective Services (“Department”) filed a petition for

protection of a child, for conservatorship, and for termination of parental rights. J.K.K.B.

was ten years old when the Department filed its petition.

       J.K.K.B.’s mother is living in a mental health facility in Missouri. Jessica Maniglia,

a Department caseworker, testified that it is impossible for J.K.K.B. to live with her mother

at the mental health facility. Both Maniglia and the Court Appointed Special Advocate

opined that termination of Mother’s rights is in J.K.K.B.’s best interest.          Maniglia

characterized J.K.K.B. as “very active, into tumbling and gymnastics[,]” and she observed

that J.K.K.B. loves to sing. Maniglia recommended that J.K.K.B. be adopted by a family

that can nurture J.K.K.B.’s artistic interests.

       The trial court took judicial notice that the Department served Mother in June 2012

with the termination petition. Since then, the Department has been J.K.K.B.’s temporary

managing conservator.        Maniglia testified that Mother failed to comply with the

Department’s family service plan, which was admitted into evidence without objection.

In it, the Department expressed concern that Mother had not contacted J.K.K.B. in five to

eight years. The service plan recites Mother’s criminal history, which includes several

drug-related crimes, domestic assault, criminal trespass, making a false report, sexual

exploitation of a minor, sexual conduct with a minor, crime against a child, contributing to

the delinquency of a minor, and aggravated assault of a healthcare professional. The




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service plan notes that Mother was committed to a mental health facility upon being

deemed incompetent to stand trial for “breaking the boundaries of her probation.”

       Doctor James Bradley Reynolds, a forensic psychiatrist and medical director and

chief clinician at the mental health facility, testified as an expert witness. He explained

how Mother became a resident in the facility after a trial court deemed her incompetent to

stand trial. He said Mother has since been deemed permanently incompetent and not

restorable.    He provided Mother’s diagnoses:          major depression with psychotic

features, polysubstance dependence, dementia due to Huntington’s disease, and

borderline personality disorder. Dr. Reynolds testified that the Huntington’s disease is

progressive, noting, “I do not foresee these conditions going into remission in the

foreseeable future or her suddenly not being handicapped by these very serious mental

illness issues.”

       Dr. Reynolds affirmed that his records showed Mother had “a number” of mental

health hospitalizations throughout her life. He testified that she “demonstrated a lot of

behavioral discontrol” when she was admitted to the facility. “She would lose her temper

unpredictably and aggressively,” causing the facility staff to be “very cautious because of

the magnitude of the physical and verbal aggressiveness that she had been displaying to

herself and others . . . .” He also related two recent outbursts, which he thought “would

be a very terrifying experience for a young child to experience if they were in the home

with her.” Dr. Reynolds, when asked about Mother’s ability to care for a young child,

responded:

              Well, at the present time, I think that would be very unlikely for her to
       give a young child the kind of support and care and structure that a child

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       would typically want to have to be successful in their growing up years and
       have a good chance at a success as an adult. My concern, particularly
       knowing with my familiarity with this lady and the behaviors we’ve observed
       now that have been unfortunately very consistent for a long period of time,
       is that her own individual emotional needs and mental issues would far
       outshadow her ability to provide a stable home environment for a child.

              I’m very, very concerned that it would be highly likely that if she were
       out in the community without sufficient structure to basically keep her in
       check, that she would revert to the problems that brought her into our
       system in the first place, namely seeking continuing relief from her
       sensations of pain, whether that would be from shopping around with
       doctors to obtain more and more prescription painkillers or possibly turning
       back to illegal means to try to meet her needs. And that would be
       extremely prejudicial to the care and environment of a young child, I would
       think.

When asked whether it would be in J.K.K.B.’s best interest to be reared by Mother, Dr.

Reynolds answered, “[I]n my opinion, a child in general would not be in a good

environment given the behaviors and the mental health conditions that I’ve observed with

[Mother] if [Mother] were the caregiver for the child in the community.” Dr. Reynolds

elaborated:

       [I]n my opinion, she would have so much difficulty in maintaining her own
       self and her own needs in an acceptable fashion, that she would have very
       little time and energy left to attend to those children. I think she would tell
       you, and she has told me repeatedly, that she loves her children and that
       she would want to stay as their parent, but unfortunately, and this is very
       hard for me as a clinician to have to state, I don’t think she would have that
       capacity to carry through with that in an appropriate, meaningful fashion.

       Dr. Reynolds testified that he does not expect Mother’s condition to improve in the

future. He stated, “[I]t’s not substantially likely at all in the foreseeable future that she

would be in a state where she could care for herself, much less any children, without

extremely close supervision and structure.” He also noted that Huntington’s disease can



                                             4
cause premature death, and stated it was “fair to say that her years of useful quality of life

are numbered . . . .”

       The trial court found termination of Mother’s parental rights was in J.K.K.B.’s best

interest, see TEX. FAM. CODE ANN. § 161.001(2) (West Supp. 2011), and terminated

Mother’s rights under Texas Family Code sections 161.001(1)(C), 161.001(1)(N), and

161.003. See TEX. FAM. CODE ANN. §§ 161.001(1)(C), (N) (West Supp. 2011), 161.003

(West 2008).2 Mother only appeals the trial court’s best-interest finding.

       2
           Subsection 161.001(1)(C) provides:

       The court may order termination of the parent-child relationship if the court finds by clear
       and convincing evidence that the parent has voluntarily left the child alone or in the
       possession of another without providing adequate support of the child and remained away
       for a period of at least six months[.]

TEX. FAM. CODE ANN. § 161.001(1)(C) (West Supp. 2011). Subsection 161.001(1)(N) authorizes
termination if the court finds by clear and convincing evidence that the parent:

       constructively abandoned the child who is the permanent or temporary managing
       conservatorship of the Department of Family and Protective Services or an authorized
       agency for not less than six months, and:

                (i) the department or authorized agency has made reasonable efforts to return the
                child to the parent;

                (ii) the parent has not regularly visited or maintained significant contact with the
                child; and

                (iii) the parent has demonstrated an inability to provide the child with a safe
                environment[.]

Id. § 161.001(1)(N) (West Supp. 2011).

       Under subsection 161.003, a trial court can terminate parental rights if the court finds that:

       (1) the parent has a mental or emotional illness or a mental deficiency that renders the
       parent unable to provide for the physical, emotional, and mental needs of the child;

       (2) the illness or deficiency, in all reasonable probability, proved by clear and convincing
       evidence, will continue to render the parent unable to provide the child’s needs until the
       18th birthday of the child;

       (3) the department has been the temporary or sole managing conservator of the child of the
       parent for at least six months preceding the date of the hearing on the termination held in
                                                     5
                                          II. BEST INTEREST

        By her sole issue, Mother argues the evidence is legally and factually insufficient to

support the finding that termination is in J.K.K.B.’s best interest.3 We disagree.

A.      Standard of Review

        To terminate parental rights, a trial court must find by clear and convincing

evidence that the parent committed an act prohibited by section 161.001(1) of the Texas

Family Code and that termination is in the best interest of the child.                  TEX. FAM. CODE

ANN. § 161.001(1)–(2); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). “Clear and convincing

evidence” is defined as 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.” TEX. FAM. CODE ANN. § 101.007 (West 2008); see In re C.H., 89 S.W.3d

17, 25 (Tex. 2002). Evidence proving one of the prohibited acts or omissions under

section 161.001(1) may also be probative to the best-interest determination. In re C.H.,

89 S.W.3d at 28.             A best-interest analysis may be based on direct evidence,

circumstantial evidence, subjective factors, and the totality of evidence. In re D.S., 333

S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.); see In re S.H.A., 728 S.W.2d 73,

86–87 (Tex. App.—Dallas 1987, writ ref’d n.r.e.); see also In re A.M., No.



        accordance with subsection (c);

        (4) the department has made reasonable efforts to return the child to the parent; and

        (5) the termination is in the best interest of the child.

Id. § 161.003(a) (West 2008).
        3
         In her brief, appellant states that she “concedes all elements except that the evidence was legally
and factually insufficient to support termination under the best interest element required under both Tex.
Fam. Code § 161.001 and 161.003.”
                                                        6
13-12-00767-CV, 2013 WL 1932903, at *25 (Tex. App.—Corpus Christi May 9, 2013, no

pet.) (mem. op.).

       In reviewing the legal sufficiency of the evidence supporting termination of parental

rights, we must “look at all the evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or conviction

that its finding was true.” In re J.L., 163 S.W.3d at 85. We assume that the fact finder

resolved disputed facts in favor of its finding if a reasonable fact finder could have done

so, and we disregard all evidence that a reasonable fact finder could have disbelieved.

Id. However, we must also consider undisputed evidence, if any, that does not support

the finding. Id. at 86.

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

fact finder’s findings and not supplant its 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 fact

finder could reasonably form a firm conviction or belief that termination of the parent-child

relationship would be in the best interest of the child.        See TEX. FAM. CODE ANN.

§ 161.001(2); In re C.H., 89 S.W.3d at 26. The evidence is factually insufficient if the

disputed evidence that a reasonable fact finder would 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 in the truth of its finding. In re H.R.M., 209 S.W.3d at 108.

B.     Applicable Law

       There is a strong presumption that keeping a child with a parent is in the child’s

best interest. TEX. FAM. CODE ANN. § 153.131(b) (West 2008); In re R.R., 209 S.W.3d


                                              7
112, 116 (Tex. 2006) (per curiam). When determining if termination is in the child’s best

interest, the following list of factors should be considered:

       (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;

       (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, and there is no requirement that the Department prove all factors as a

condition precedent to termination.      In re C.H., 89 S.W.3d at 27.    In some cases,

undisputed evidence of just one factor may be sufficient to support a finding that

termination is in the best interest of the child. Id.

       When the Department is the petitioner, section 263.307(b) of the Texas Family

Code lists thirteen factors that the court should consider in determining whether a parent

is “willing and able to provide the child with a safe environment.” See TEX. FAM. CODE

ANN. § 263.307(b) (West 2008). We give consideration to these factors to the extent

applicable. See In re R.R., 209 S.W.3d at 116; In re J.J.C., 302 S.W.3d 436, 447–48

                                              8
(Tex. App.—Houston [14th Dist.] 2009, pet. denied); see also In re R.S., No.

13-09-00368-CV, 2010 WL 877567, at *2 (Tex. App.—Corpus Christi Mar. 10, 2010, no

pet.) (mem. op.).

C.     Analysis

       1.     J.K.K.B.’s Desires

       Maniglia testified that J.K.K.B. prefers to be adopted as an only child or by a family

with children her age or older and wants “someone who can answer her questions about

science and can take her on trips and outings.” The attorney ad litem asked Maniglia,

“[H]as she [J.K.K.B.] changed her mind as far as wanting to be adopted?” Maniglia

responded that J.K.K.B. had not. This factor weighs in favor of termination.

       2.     J.K.K.B.’s present and future physical and emotional needs; present
              and future emotional and physical danger to J.K.K.B.; TEX. FAM. CODE
              ANN. § 263.307(b)(8)

       Mother concedes the sufficiency of the evidence to support the trial court’s findings

under section 161.003, thus conceding that her mental health precludes her from

providing “for the physical, emotional, and mental needs of the child.” See TEX. FAM.

CODE ANN. § 161.003(a)(1); see also id. § 263.307(b)(6) (providing that parent’s

psychiatric or psychological health is a factor regarding whether the parent can provide a

safe environment). She also concedes that the illness or deficiency not only presently

hampers her ability to care for J.K.K.B. but will, in all reasonable probability, continue until

J.K.K.B.’s eighteenth birthday. See id. § 161.003(a)(2). In addition, Maniglia testified

that Mother failed to comply with the family service plan.




                                               9
       Dr. Reynolds testified that Mother’s condition is not likely to improve in the

foreseeable future. He discussed Mother’s behavioral issues, and related two recent

events that would be “very terrifying” for a child to witness. Dr. Reynolds assessed that

Mother’s “own individual emotional needs and mental issues would far outshadow her

ability to provide a stable home environment for a child.” Dr. Reynolds further testified

that Mother suffers from polysubstance dependence, and Mother’s criminal history

reflects repeated problems with illegal drugs. Dr. Reynolds worried that it is highly likely,

if Mother were released into the community without supervision that she would return to

her illegal behavior.

       Mother’s non-drug-related criminal history is of concern in considering present and

future emotional and physical danger to J.K.K.B.         Mother’s criminal history includes

domestic assault, criminal trespass, and aggravated assault of a healthcare professional.

Of particular concern to J.K.K.B.’s best interest calculus is Mother’s past conduct

involving sexual exploitation of a minor, sexual conduct with a minor, crime against a

child, and the contributing to the delinquency of a minor.

       Mother’s concessions, her failure to comply with the family service plan, her

serious mental health issues that require ongoing supervision and treatment, and the

evidence of her criminal and drug history weigh in favor of termination. See In re M.R.,

243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (“A parent’s drug use,

inability to provide a stable home, and failure to comply with a family service plan support

a finding that termination is in the best interest of the child.”); In re D.M., 58 S.W.3d 801,

817 (Tex. App.—Fort Worth 2001, no pet.) (“Appellant’s history of drug abuse, her


                                             10
admissions and conduct relating to recent drug use, and her inability to maintain a

lifestyle free from arrests and incarcerations[] is some evidence that termination would be

in the children’s best interest.”); see also TEX. FAM. CODE ANN. § 263.307(b)(8) (parent’s

substance-abuse history is a safe-environment factor).

       In summary, when considering J.K.K.B.’s interests and needs and Mother’s

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

Mother was not positioned to nurture J.K.K.B.’s psychological and physical needs.

These factors weigh in favor of termination.

       3.     Mother’s parental abilities; TEX. FAM. CODE ANN. § 263.307(b)(11)–(12)
              (safe-environment factors for parenting ability and parent’s
              willingness and ability to effect positive environmental and personal
              changes)

       Mother concedes the sufficiency of the evidence supporting the trial court’s

findings under subsections (C) and (N) of section 161.001(1) of the Texas Family Code.

She therefore concedes the sufficiency of the evidence to show that she abandoned

J.K.K.B. See TEX. FAM. CODE ANN. § 161.001(1)(C), (N). The evidence reveals that

Mother has had no contact with J.K.K.B. for five to eight years. The fact that Mother was

absent for a significant portion of J.K.K.B.’s life and made little effort to avoid incarceration

even when placed on probation weighs in favor of termination.

       4.     Available programs to assist Mother in promoting J.K.K.B.’s best
              interest

       When asked whether any parenting or life skills were discussed with Mother, Dr.

Reynolds stated that there is “to some degree, a discussion of that sort” with her social

worker, but that those discussions “have generally been minor issues at the moment


                                               11
compared to the more pressing concerns we’ve had working with her, which has been the

temper outbursts, the volatility of her behaviors.” The trial court could have reasonably

concluded that Mother’s “more pressing concerns” eclipsed the assistance available from

such programs. This factor weighs in favor of termination.

       5.     Mother’s and the Department’s plans for J.K.K.B.; stability of the
              home; TEX. FAM. CODE ANN. § 263.307(b)(11)–(12)

       “The need for permanence is a paramount consideration for the child’s present

and future emotional and physical needs. . . . The goal of establishing a stable,

permanent home for a child is a compelling government interest.” In re A.L., 389 S.W.3d

896, 902 (Tex. App.—Houston [14th Dist.] 2012, no pet.); see In re T.D.C., 91 S.W.3d

865, 880 (Tex. App.—Fort Worth 2002, pet. denied). Prompt and permanent placement

of the child in a safe environment is presumed to be in the child’s best interest. TEX. FAM.

CODE ANN. § 263.307(a).

       Mother testified that she wanted to raise J.K.K.B.           She said she had a

one-bedroom trailer but was “stuck” in the mental facility and did not know when she

would be released. Regarding her health, she testified that “[I]f I do get sick, I can hire a

nurse.” She did not have any other placement plans for J.K.K.B.

       Dr. Reynolds testified that although Mother wanted to be a parent to J.K.K.B., he

disbelieved that “she would have that capacity to carry through with that in an appropriate,

meaningful fashion.” He considered it substantially unlikely that Mother “would be in a

state where she could care for herself, much less any children, without extremely close

supervision and structure.” Dr. Reynolds also noted that upon discharge Mother likely

would continue to a “structured placement setting,” where “it would be very, very unusual”

                                             12
and “outside the usual routine” to allow J.K.K.B. to reside. Maniglia did not think it was

possible that J.K.K.B. could reside with her Mother at the mental health facility.

       The Department recommended that J.K.K.B. be adopted by non-relatives. The

Department is in a better position to achieve its goals for J.K.K.B. than Mother, whose

plans the trial court could have found to be unrealistic. Moreover, Mother’s lengthy

abandonment of J.K.K.B., mental-health challenges, and criminal and drug history points

to continuing instability in her home. See In re O.N.H., 401 S.W.3d 681, 684 (Tex.

App.—San Antonio 2013, no pet.) (holding fact finder can measure a parent’s future

conduct by past conduct); In re K.A.S., 131 S.W.3d 215, 229–30 (Tex. App.—Fort Worth

2004, pet. denied) (same); see also In re V.A., No. 13-06-00237-CV, 2007 WL 293023, at

*6 (Tex. App.—Corpus Christi Feb. 1, 2007, no pet.) (mem. op.) (same). These factors

weigh in favor of termination.

       6.     Mother’s acts or omissions indicating that the existing parent-child
              relationship is not a proper one; TEX. FAM. CODE ANN.
              § 263.307(b)(11)–(12)

       Mother concedes the trial court’s finding that she abandoned J.K.K.B.          The

Department’s family service plan stated that Mother has had no contact with J.K.K.B. in

five to eight years and detailed Mother’s extensive criminal history. Mother failed to

comply with the service plan. Since being admitted to a mental health facility, Mother

has had repeated outbursts. This factor weighs in favor of termination.

       7.     Excuses for Mother’s acts or omissions

       Mother offered no excuses for her acts or omissions. This factor weighs in favor

of termination.


                                            13
D.     Summary

       Considering the Holley and relevant statutory factors, we conclude the evidence is

both legally and factually sufficient to support the trial court’s finding that termination is in

J.K.K.B.’s best interest. We overrule Mother’s sole issue.

                                     III. CONCLUSION

       We affirm the trial court’s order terminating Mother’s parental rights to J.K.K.B.


                                                    GREGORY T. PERKES
                                                    Justice

Delivered and filed the
31st day of October, 2013.




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