Date: 12-21-2017

Case Style: In the Interest of J. S. B. v. Department of Family and Protective Services

Case Number: 01-17-00480-CV

Judge: Jennings

Court: Texas Court of Appeals, First District on appeal from the 310th District Court, Harris County

Plaintiff's Attorney: DeAnna Carlson and Sandra D. Hachem

Defendant's Attorney: Don Crane

Description: In this accelerated appeal,2 appellant, L.S.B., challenges the trial court’s orders, entered after a bench trial, terminating her parental rights to her minor children, D.M.W., J.S.B., and E.L.B. (collectively, “the children”).3 In five issues, L.S.B. contends that the evidence is legally and factually insufficient to support the trial court’s findings that she engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being,4 she constructively abandoned the children,5 she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children,6 termination of her parental rights was in the best interest of the children,7 and the appointment of the Department of Family and Protective
2 See TEX. FAM. CODE ANN. § 263.405(a) (Vernon 2014); TEX. R. APP. P. 28.4.
3 At the time of trial, D.M.W. was nine years old, J.S.B. was six years old, and E.L.B. was four years old. The record indicates that L.S.B. has two other younger children who have also been removed from her care but who are not involved in this appeal.
The parental rights of the children’s respective fathers were previously terminated, and the fathers are not parties to this appeal. See In re D.W., Nos. 01-13-00880-CV, 01-13-00883-CV, 01-13-00884-CV, 2014 WL 1494290, at *1 n.2 (Tex. App.—Houston [1st Dist.] Apr. 11, 2014, no pet.) (mem. op.) (in previous appeal in this case, noting fathers’ parental rights terminated).
4 See TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (Vernon Supp. 2017).
5 See id. § 161.001(b)(1)(N).
6 See id. § 161.001(b)(1)(O).
7 See id. § 161.001(b)(2).w
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Services (“DFPS”) as the children’s permanent managing conservator was in their best interest.8
We affirm.
Background
On March 26, 2015, DFPS filed three “Original Motion[s] to Modify for Conservatorship[] and for Termination in Suit[s] Affecting the Parent-Child Relationship,” seeking termination of L.S.B’s parental rights to the children and managing conservatorship of them.
At trial, Child Advocates Inc. (“Child Advocates”) caseworker Layota Porter testified that she was assigned to the children in May 2013. The children initially came into DFPS’s care after an allegation arose that L.S.B. had “left [the children] at home while she was burning down” the apartment of J.S.B.’s father.9 And although L.S.B. was never “indicted or convicted” of a criminal offense related to the allegation, she was “charged with making . . . a false report” to a peace officer and incarcerated in September 2012. Upon L.S.B.’s incarceration, the children were
8 See id. § 161.207(a) (Vernon Supp. 2017); see also id. § 153.002 (Vernon 2014) (best interest of children always primary consideration in issues of conservatorship).
9 Porter clarified that she did not know of any evidence showing that L.S.B. had actually “left” the children and burned down the apartment of J.S.B.’s father.
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placed into DFPS’s care because L.S.B. did not have anyone to take the children at the time she was arrested.10
Porter explained that in 2011, DFPS had previously investigated L.S.B. after an allegation of “neglectful supervision” arose when she left the children with her mother and D.M.W., who was approximately three years old at the time, was found “wandering around [an] apartment complex” alone. In 2012, DFPS received another “referral” for physical abuse related to L.S.B. when E.L.B. tested positive for marijuana at birth. Although the children were not removed from L.S.B.’s care at that time, DFPS offered its “services” to help L.S.B. Porter noted that L.S.B.’s history of involvement with DFPS prior to the removal of the children in the instant case shows a “pattern of behavior.” And if a parent, such as L.S.B., has had a problem with narcotics use in the past, including narcotics use while pregnant, and continues to test positive for narcotics use after her children have been removed from her care, it indicates that the parent is “still doing . . . the same behavior which can [further] put the children at risk” of harm.
10 L.S.B. admitted during her 2012 psychological evaluation, admitted into evidence as Respondent’s Exhibit 13, that “DFPS became involved with her family” because she “went to jail and no one could pick up [the] kids.” (Internal quotations omitted.) L.S.B. also admitted that she was unemployed and last employed in 2011 by a grocery store. According to the psychological evaluation, L.S.B. “is a single parent with limited resources” and her “level of functioning . . . [is] low and likely to impact her ability to parent her children effectively, make good decisions for their well-being, and provide a stable home environment.”
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In regard to L.S.B., Porter explained that she first spoke with her on June 5, 2013, when L.S.B. asked to see the children. At that time, Porter told L.S.B. that she needed to submit to narcotics testing before a visit with the children would be scheduled. After repeated requests by Porter, L.S.B. took a narcotics test, which came back negative, on July 17, 2013. However, L.S.B. did not show up to her scheduled visit with the children on July 25, 2013, and she did not inform Porter that she would not be attending.
In general, Porter noted that she has had a difficult time “getting ahold of” L.S.B. And she did not speak to L.S.B. from the end of July 2013 until June 2014. Further, after she was able to contact L.S.B. in the summer 2014, she did not speak with her again until February 2015.11 Porter also reported that on several occasions during this case, L.S.B. told her to “stop calling” because she had other children to worry about. During the entire time that Porter was assigned to the children’s case, from May 2013 until September 2015, L.S.B. did not have a visit with the children, and she went for “significant periods of time” without maintaining contact with her caseworker.
In regard to L.S.B.’s criminal conduct, Porter noted that L.S.B. was arrested on September 19, 2012, which is when the children came into the care of DFPS, and later convicted of the misdemeanor offense of making a false report to a peace
11 Porter noted that L.S.B. did contact her supervisor in December 2014.
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officer.12 Porter also explained that in 2013, while this case was pending, L.S.B. was incarcerated in New Orleans related to a violation of an “order of protection and domestic battery.” And Porter noted that L.S.B. was incarcerated between May 2013 and January 2015 related to “several different charges.” Further, at the time of trial, L.S.B. was again incarcerated. According to Porter, L.S.B. has never shown an ability to “provide a stable and safe environment for [the] children” and because L.S.B. is incarcerated, she cannot care for the children. Porter further expressed concern about L.S.B. “engaging in domestic violence” during the pendency of this case and the fact that L.S.B.’s criminal activities “span[ned] the duration of th[is] case.” Moreover, Porter explained that L.S.B.’s criminal records indicate that she has shown a “pattern” of “violent” behavior which “could put the children at risk of harm.” Because L.S.B. continued to engage in criminal activity after the children had been removed from her care, she has not shown that she is willing to do what is necessary in order to have the children returned to her care.
Porter further testified that L.S.B. received two Family Service Plans (“FSP”) in this case. The first FSP, from 2012, and the second FSP, from 2014, admitted into evidence as Petitioner’s Exhibits 9 and 10, respectively, state:
On September 19, 2012, [DFPS] received a referral of neglectful supervision of 4 year old [D.M.W.], 2 year old [J.S.B.], and 3 month[] old [E.L.B.]. [L.S.B.] . . . was taken to a local police station for making a false report on the father . . . of [J.S.B.]. . . . [L.S.B.] is also a suspect
12 See TEX. PENAL CODE ANN. § 37.08(a), (c) (Vernon 2016).
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in burning down [the house of J.S.B.’s father]. [L.S.B.] stated that she burned the house because she [was] upset with [J.S.B.’s father] for leaving her and not paying child support. [D.M.W.] and [J.S.B.] were not with [L.S.B.] when she burned the home down. It is believed that [L.S.B.] left [D.M.W.,] . . . 2 year old [J.S.B.,] [and the] infant [E.L.B.,] home alone while she went to burn down [the] home. [D.M.W.] and [J.S.B.] were dirty and appeared to not have been bathed. There have been prior domestic violence reports between [L.S.B.] and [the father of J.S.B.].[13]
In L.S.B.’s first FSP, it is also noted that the children entered DFPS’s care after L.S.B. was arrested in September 2012. And DFPS had previously “received a referral of physical abuse,” related to E.L.B., when he “tested positive for marijuana at birth,” and a “referral of negligent supervision,” related to D.M.W., after she had been left in the care of L.S.B.’s mother. And in L.S.B.’s second FSP, it is noted that she had “a history of domestic violence in [her] home” and while the children were in her care, she “displayed behaviors that exposed [the] children to danger.” Further, L.S.B. “failed to complete her previous [FSP],” did not have “contact with the children [for] over a year,” and was “arrested for violating an order of protection and domestic battery in August 2013.”
In regard to her first FSP,14 which was signed by L.S.B. on November 5, 2012, Porter testified that L.S.B. completed her psychosocial evaluation and began
13 The FSPs also note that “[t]here [were] domestic violence reports between [L.S.B.] and [J.S.B.’s father over] the past three years” and J.S.B.’s father was “in jail for a domestic violence dispute.”
14 L.S.B.’s first FSP required her to “refrain from engaging in any illegal criminal activities”; “participate in domestic violence classes and present certification of
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participating in individual therapy and domestic violence classes, which DFPS required because L.S.B. had previously been “a perpetrator” of domestic violence. L.S.B. further completed parenting classes and a substance abuse assessment, which recommended that she participate in “outpatient” “substance abuse services.” Porter noted, however, that L.S.B. was not successfully discharged from individual therapy and had stopped participating in it by the time Porter was assigned to the children’s case in 2013.15
In regard to her second FSP,16 which the court ordered L.S.B. to comply with, Porter testified that she provided no proof that she had been “working [the] services”
completion to [her] caseworker”; “participate in a full psychological evaluation” and “follow all recommendations”; “maintain housing that is stable for more than 6 months”; “maintain legal employment and provide documentation”; “attend all court hearings, permanency conference meetings, and family visits”; “maintain contact with [her] child[ren]”; “submit to random urinalysis drug testing and . . . test negative at all times”; “participate fully in a drug and alcohol assessment” and “follow the recommendations”; and “participate in parenting classes.”
15 Porter noted that L.S.B. blamed her failure to complete the requirements of her first FSP on the death of her mother. Porter later discovered that L.S.B.’s mother was actually alive.
16 L.S.B.’s second FSP required her to “inform” DFPS whether she “intend[ed] to complete her services”; “begin engaging in [her] services no later than August 31, 2014”; “make the necessary arrangements for transportation” related to her services; “maintain stable and safe housing for a minimum of six months” and notify DFPS within twenty-four hours of any “relocation”; “actively participate in individual therapy” and be “successfully discharged from [it]”; “actively participate in and successfully complete anger management” classes; “refrain from participating in any illegal activities” and inform her caseworker of any incarcerations; “complete a [new] psychological evaluation” and “follow all recommendations”; “complete a psychiatric evaluation” and “follow all recommendations”; “enroll, attend, participate in, pay for, and successfully complete an in-person . . . parenting class”; “attend and participate in all court hearings, [p]ermanency [c]onferences, scheduled
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required by her second FSP between summer 2014 and February 2015. In May 2015, Porter spoke with L.S.B. about her second FSP, and she agreed to begin working on its requirements. At that time, L.S.B. provided Porter with a copy of a lease agreement,17 “a [pay]check stub,”18 “proof of completion of parenting classes,” and a certificate showing that she had completed some, but not all, of her required domestic violence classes. Although Porter subsequently set up a psychological evaluation, a psychiatric evaluation, and a substance abuse assessment for L.S.B., she did not “complete any of th[e] evaluations.” L.S.B. also did not complete all of her required narcotics testing, nor did she inform DFPS of her incarcerations. And L.S.B. did not demonstrate that she was able to maintain employment or a “crime-free” or “drug-free” life-style in order to provide a safe environment for the children.
visitations, and meetings”; “contact [her] caseworker or the supervisor on a monthly basis, a minimum of twice a month”; “participate in [d]omestic [v]iolence classes” and provide “proof of successful completion”; “complete a [new] substance abuse assessment” and “follow all recommendations”; “maintain a drug and alcohol free lifestyle at all times” and “not engage in illegal drugs, consumption of alcohol, or misuse of prescription drugs”; “submit to [narcotics] testing” when requested; and “provide proof . . . that she is able to provide for her children through employment.” Porter noted that although L.S.B. had completed a psychological evaluation related to her first FSP, DFPS required her to complete a new one because a “significant amount” of time had passed.
17 L.S.B. did not inform Porter of her new address after the six-month lease had expired.
18 L.S.B. only provided Porter with a single “[pay]check stub” and did not provide any proof of “continued and stable employment.”
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Porter explained that L.S.B. would go for significant periods of time without contacting the children. This negatively affected them because it precluded them from maintaining a bond with her. For instance, L.S.B., who had not seen the children for “several years” and was required to “attend all scheduled visitations” with the children, did not show up for her scheduled visit with the children on August 6, 2015. L.S.B.’s failure to show up at the visit caused D.M.W. to become “very upset,” and J.S.B. would not “put down his flowers that he was supposed to give to [L.S.B.] until [his] caregiver finally took them from him.” In general, each time L.S.B. did not attend scheduled visitation with the children, it affected D.M.W.’s behavior.
In regard to the children, Porter acknowledged that they had been in several different placements while in the custody of DFPS. They have “behavioral issues” and “special needs,” and D.M.W. has been placed on “psychological medication[s].” In one incident, D.M.W. “broke some bones in [a] caregiver’s hand,” and D.M.W. has received “psychiatric consultation” and “monitoring” as a result of her behavioral issues. Porter also explained that D.M.W. had “delays in school” when she entered the care of DFPS and “there were . . . concerns” that J.S.B. and E.L.B. would have developmental delays as they got older. According to Porter, the children need an environment that is “conducive to them having a healthy
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upbringing.” And a safe and stable home would provide the children with stability, which is particularly important for school-age children.
Porter further testified that it is in the children’s best interest for L.S.B.’s parental rights to be terminated because she has shown a “pattern of behavior” that involves narcotics use and engagement in criminal activity, both of which endanger the children. L.S.B. also has shown an inability to “significantly change[] [her] circumstances” or maintain a “safe and stable environment” for the children. While Porter was assigned to the children’s case, the children, while in DFPS’s care, were in a “safe home” that was “free from criminal activity” and narcotics use. The children attended school, went to the doctor, had clothing and food, and had their emotional and physical needs met.
DFPS Program Director Shaundricka Easley testified that she had supervised Janay Young, the DFPS caseworker assigned to the children from September 2015 until August 2016. Easley explained that in February 2016, allegations of abuse or neglect arose related to the children’s placement at that time. According to Easley, the children had been placed with a relative, D.M.W.’s half-sister, and DFPS had “taken all of the steps necessary to ensure that th[e] [placement] was an appropriate home for the[] children.” DFPS, upon learning of the allegations of abuse and neglect, immediately removed the children from the placement, placed them in a new home, and ensured that the children received therapy. Easley noted that there
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was no way that DFPS could have predicted that abuse would have occurred while the children were placed with a relative.
In regard to L.S.B., Easley testified that DFPS’s contact with her was “sporadic” between September 2015 and August 2016. Easley noted that L.S.B. was “connected to a murder case or [a] missing person’s case . . . in New Orleans,” Louisiana. L.S.B. was “renting from [the missing elderly person],” “was seen driving [her] car,” and was “the last person that [she] was seen with.” Further, Easley explained that L.S.B. had tested positive for cocaine use during the instant case, “threatened [a DFPS] caseworker,” and engaged in criminal activity throughout the pendency of this case. Also, L.S.B. was incarcerated in August 2016, had not maintained “any stable . . . employment for the last five years,” and “continued to use drugs.” According to Easley, termination of L.S.B.’s parental rights is in the children’s best interest because she uses narcotics, is unemployed, continues to engage in criminal activity, and is not stable.
In regard to the children, Easley explained that they came into the care of DFPS because L.S.B. was arrested for making a false report to a peace officer.19 When the children, who are currently in foster care, came into DFPS custody, they had “educational issues” and “behavioral issues.” D.M.W., who was “behind in school,” has since been diagnosed with Attention Deficit Hyperactivity Disorder
19 See TEX. PENAL CODE ANN. § 37.08(a), (c).
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(“ADHD”), Oppositional Defiant Disorder (“ODD”), and “symptoms of depression.” She attends therapy and has received “educational accommodations.” J.S.B. and E.L.B. have “learning disabilities,” have received speech therapy, and attend individual therapy. Easley did not believe that L.S.B. had been “doing anything to help” the children before they entered DFPS’s care.
Easley further noted that while this case was pending, L.S.B.’s behavior “impact[ed]” the children because they are not yet in a stable home. Whenever they see L.S.B., they become “anxious” because they go for “substantial amount[s] of time” without seeing her. At one visit, D.M.W. asked, “Who is that woman?” because she did not remember L.S.B. (Internal quotations omitted.) At the time of trial, Easley noted that L.S.B. “ha[d] not been around her kids for some time.” She further explained that if L.S.B.’s parental rights were terminated, DFPS would seek to have the children adopted.
DFPS supervisor Jacquelyn Axline testified that she served as the DFPS caseworker for the children from February 2016 until December 2016. Axline explained that she scheduled a visit with L.S.B. for April 8, 2016, but L.S.B. could not come because her brother had died. A second visit with the children was scheduled on May 9, 2016, and L.S.B. attended, but arrived late. Axline noted that the children were “nervous” at the visit and treated L.S.B. “as if she was any other person [that] they were meeting,” not like she was their mother. D.M.W. was “very
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timid” and “did not know who [L.S.B.] was,” and J.S.B. and E.L.B. did not recognize L.S.B. “at all.” According to Axline, D.M.W. did not “appear attached” to L.S.B. or “excited to see her”; instead, D.M.W. was “concern[ed]” about “whether or not she w[ould be] leaving with [her] foster parents.” Further, Axline noted that L.S.B. brought to the visit one of her younger children, who “created a bit of chaos” by “running all over the place.” When that younger child would “get in [D.M.W.]’s space,” which she “did not like,” L.S.B. would tell D.M.W., “That’s your brother. He’s fine,” which upset D.M.W. (Internal quotations omitted.)
Axline explained that a third visit with the children and L.S.B. was scheduled for June 3, 2016, and the children again did not appear “very settled” with L.S.B. D.M.W. became upset during the visit at several things that L.S.B. had said to her, and D.M.W.’s interactions with L.S.B. were “not positive.” L.S.B. also appeared frustrated with her children, “on-edge,” and “ready to go.” The children appeared to “easily overwhelm her,” and “she seemed agitated by the situation.” Further when the visit was over, Axline offered L.S.B. more time with the children, but she declined and left the visit. After DFPS received L.S.B.’s positive narcotics-testing results from May 26, 2016 and June 2, 2016, DFPS stopped her visitation with the children.
Axline further testified that L.S.B. would not provide Axline with her address and Axline experienced difficulty in contacting L.S.B. L.S.B. did not, while Axline
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was the caseworker assigned to the case, complete her psychological evaluation, psychiatric evaluation, or substance abuse assessment, as required by her second FSP. And L.S.B. never showed that she had completed any of the services required by her second FSP, did not provide “proof of housing,” and was incarcerated on August 9, 2016. Axline also noted that when L.S.B. tested positive for cocaine and marijuana use on May 26, 2016 and June 2, 2016, she was visibly pregnant with her fifth child. In fact, L.S.B. had told Axline that she was pregnant at the May 9, 2016 visit with the children.20 And according to Axline, L.S.B. did want the children returned to her care.
Axline also described one incident, which occurred on July 12, 2016, wherein Axline received multiple telephone calls and text messages from L.S.B. between 4:00 a.m. and 5:00 a.m. In the text messages, L.S.B. stated that Axline “was going to die,” L.S.B. “knew where [she] lived,” DFPS “couldn’t keep [her] safe,” L.S.B. had a car, “the police c[ouldn’t] save [Axline],” Axline “d[idn’t] make enough money to keep [herself] safe,” and she “would be found in the ground.” Axline also noted that L.S.B. had called her “some derogatory names,” stating, “[Y]ou’re going to die, [h]o.” Axline reported the threatening text messages to law enforcement officers, and a warrant was issued for L.S.B.’s arrest.
20 Axline testified that testing positive for narcotics use constitutes a violation of L.S.B.’s second FSP.
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DFPS caseworker Gabrielle Bernal testified that she was assigned to the children in December 2016, and since that time, L.S.B.’s two younger children have also entered into the care of DFPS. D.M.W., who is nine years old, is currently placed in a foster home by herself, although she sees J.S.B. and E.L.B. She is “doing okay” in her placement, but has “trouble behaving every now and then”; attends therapy weekly, which her foster parents ensure that she attends; and has been diagnosed with ADHD, ODD, borderline intellectual functioning range, child physical abuse, and child neglect. D.M.W. is currently taking medications to treat her ADHD and “help with sleeping.” Her foster home is safe, and her needs are being met. Previously, when D.M.W. came into DFPS’s care, she was “educationally delayed” and had “behavioral problems,” which had not been addressed by L.S.B.
J.S.B., who is six years old, is “doing great in school” and is in the same foster home as E.L.B. He has been diagnosed with unspecified trauma and stressor-related disorder, disruptive mood dysregulation disorder, ADHD, physical disorders, and psychosocial stressors. J.S.B. is taking medication to treat his ADHD and “help with sleep[ing].” His foster parents are “being appropriate” with his medications, and J.S.B. attends therapy on a weekly basis. His foster home is safe, and his needs are being met.
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E.L.B., who is four years old, is “doing good,” “very hyperactive,” and “outgoing.” He has been diagnosed with unspecified trauma and stressor-related disorder, unspecified depressive disorder, unspecified disruptive impulse control and conduct disorder, physical abuse of a child, neglect of a child, ADHD, physical disorders, and psychosocial stressors, including prenatal exposure to marijuana. E.L.B. attends “prekindergarten,” but has “trouble behaving and sitting still while in class.” His foster parents are “being appropriate with . . . school.” E.L.B. attends the same school as D.M.W. His foster home is safe, and his needs are being met.
Bernal explained that DFPS’s goal for the children is an unrelated adoption because they “need parents who are going to be very active in their lives, [who can] provide constant attention, redirection, be able to . . . be structured and stable . . . and be consistent with them.” Bernal noted that DFPS was requesting termination of L.S.B.’s parental rights because she “hasn’t shown any progress throughout the time th[e] case has been open[],” she is currently incarcerated, and there is a “lack of [a] relationship between her and the children.” During the time that the children have been in the care of DFPS, L.S.B.’s own behavior has only “led” to her “incarceration[s],” which have precluded her, at times, “from working services [required by her FSPs] and making contact with [the] children.” By continuing to engage in criminal activity, L.S.B. is demonstrating that she is “not thinking about [the] children” and “choosing [her] actions over the welfare of [the]
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children.” Moreover, L.S.B.’s criminal activity “shows a pattern of aggressive” and “impulsive” behavior, raising “domestic violence” concerns because she has “been charged with assaultive, volatile criminal [actions].”21 And if L.S.B. is convicted of the offense of murder in Louisiana, “she will be looking at a long life sentence which [a]ffects the children” and “her ability to provide a safe and stable environment for them.”
Bernal further testified that L.S.B. has not provided for the children during the pendency of this case. Moreover, throughout the case, she had “gone [a] significant amount of time without being in contact with [DFPS]” or “maintain[ing] any kind of contact with” the children. In fact, over the course of five years, L.S.B. has only seen the children seven times. This is “endangering to the child[ren]’s emotional well-being” because every time L.S.B. sees the children, it “instill[s] a sense of hope.” And “when she’s [then] not in contact [with them] for a long time, they get let down.” Bernal further noted that E.L.B. tested positive for marijuana at birth and L.S.B. tested positive for cocaine and marijuana use while pregnant with another child, which constitutes physical abuse. Bernal opined that if L.S.B.’s parental rights are terminated, the children would not be negatively impacted.
21 Bernal noted that L.S.B. was “convicted of numerous domestic violence charges when she was in Louisiana in 2013, [20]14, and [20]15.”
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Bruce Jeffries, an expert in interpreting narcotics test results, testified that L.S.B. tested negative for narcotics use on November 13, 2012 after the children had been removed from her care in September 2012.22 However, on March 12, 2013, L.S.B. tested positive for marijuana use. According to Jeffries, the March 12, 2013 test indicated that L.S.B. had used marijuana after the children had been placed in DFPS’s custody, she had ingested the marijuana, and she was close to being considered “a heavy user.” Jefferies noted that on May 12, 2015, L.S.B. tested positive for marijuana use and her hair was “completely saturated” with marijuana, indicating that she was, “almost [on] a daily basis,” in a “closed environment” with “marijuana in the atmosphere.” On May 26, 2016, L.S.B. tested positive for cocaine and marijuana use, and on June 2, 2016, she tested positive for cocaine, marijuana, and alcohol use, and exposure to marijuana. Further, Jeffries explained that if L.S.B. was pregnant on May 26, 2016 and June 2, 2016, which DFPS supervisor Axline testified to, then the narcotics testing indicated that she had exposed her unborn child to cocaine, marijuana, and alcohol. Jefferies also noted that L.S.B.’s positive test results on March 12, 2013, May 12, 2015, May 26, 2016, and June 2, 2016 indicated that she had “continu[ed] [to] use drugs over a period of time,” which is indicative of “a continuing course of conduct” by L.S.B. Further, in order for L.S.B. to have
22 At trial, the court admitted evidence of the results of L.S.B.’s narcotics testing as Petitioner’s Exhibits 11–13.
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tested positive on any narcotics test, she would have had to have used narcotics more than once.
The trial court admitted into evidence, as Petitioner’s Exhibit 28, three “Permanency Report[s],” completed in April 2017 and related to the children. D.M.W.’s permanency report states that she is currently placed in a foster home. She “loves going to school, but struggles to focus and complete tasks.” She “exhibits aggressive and violent behaviors when she [is] angry” and attends “special education classes” and “play therapy.” D.M.W. “loves attention and thrives on getting affection [but] has difficulty receiving any criticisms.” She does “well at school,” but “struggle[s] with [her] behaviors in [the] early morning[s] and evening[s].” D.M.W.’s current placement is meeting “all” of her needs. Her foster parents “spend[] [an] extensive [amount of] time working with her to help her improve” in school, “take her to places to meet and play with [her] peers,” and “provide[] appropriate supervision, developmental nurturing[,] and discipline.” D.M.W. reports that her “foster parents treat her very well” and “she does not wish to leave [her foster] home.” And she feels “a sense of comfort, predictability, and safety in [her] placement.”
The report also notes that D.M.W. attends psychotherapy on a weekly basis. In 2015, she was diagnosed with ADHD, Adjustment Disorder, Anxiety Disorder, and Speech Sound Disorder. In 2016, D.M.W. was diagnosed with Child Neglect,
21
Suspected Child Physical Abuse, Suspected Intellectual Disability Mild (Provisional), Specific Learning Disorder with Impairment in Reading, Mathematics, and Written Expression, ADHD, Adjustment Disorder with Disturbance of Mood and Conduct, and Insomnia Disorder. In 2017, she was diagnosed with ODD, ADHD, Borderline Intellectual Functioning Range, Child Physical Abuse, and Child Neglect. And D.M.W. is taking medication for ADHD and insomnia. DFPS notes that the “[p]rimary [p]ermancy [g]oal” for D.M.W. is unrelated adoption, which “is in [her] best interest” because L.S.B. has “failed to participate in [DFPS] services” and has not “demonstrated an ability to provide a safe and stable home for [D.M.W.].”
J.S.B.’s permanency report states that he is currently placed in a foster home with his brother E.L.B. and his home is within “close proximity” to D.M.W. He “enjoys dancing,” “imagination play,” and “playing with his siblings,” although he “frequently fights with [D.M.W.].” J.S.B. “loves getting attention,” is “very outspoken,” is an “engaging child,” and likes school. He “can be aggressive and has loud tantrums when things do not go his way.” J.S.B.’s current placement “has found preventative measures” to address his behavioral issues. J.S.B. visits with his siblings monthly, and his foster parents “take [him] to places to meet and play with [his] peers.” He “reports a sense of comfort, predictability, and safety in [his]
22
placement,” and his current placement “provides [him with] appropriate supervision, developmental nurturing[,] and discipline.”
The report also indicates that J.S.B. attends play therapy on a weekly basis. In 2015, he was diagnosed with Attention Deficit Disorder (“ADD”) and Adjustment Disorder. In 2016, J.S.B. was diagnosed with Child Neglect, Suspected Child Physical Abuse, Suspected ADHD, and Adjustment Disorder with Mixed Anxiety and Depressed Mood. In 2017, he was diagnosed with Unspecified Trauma and Stressor Related Disorder, Disruptive Mood Dysregulation Disorder, and ADHD. J.S.B. currently takes medication for AHDH and insomnia. With medication, he “has shown some improvement,” but he “continues to struggle with focusing on tasks and his aggression.” DFPS notes that the “[p]rimary [p]ermancy [g]oal” for J.S.B. is unrelated adoption and “[t]his goal is in [his] best interest” because L.S.B. has “failed to participate in [DFPS] services” and has not “demonstrated an ability to provide a safe and stable home for [J.S.B.].”
E.L.B.’s permanency report states that he is currently placed in a foster home with his brother J.S.B. He “enjoys playing with his siblings and other kids,” dancing, and singing. E.L.B. “loves to be silly and is very rambunctious at times.” He “struggles with redirection” and “will have frequent temper tantrums when things do not go his way.” E.L.B. “thrives with 1:1 attention and enjoys affection.” His current placement is meeting “all” of his needs and provides him with a safe and
23
stable home. E.L.B. attends a “Pre-K program,” and his foster parents “frequently take [him] on outings.”
Further, the report indicates that E.L.B. attends play therapy weekly and speech therapy “every other week,” and his “speech has become more understandable.” In 2015, he was diagnosed with ADD and Adjustment Disorder. In 2016, E.L.B. was diagnosed with Child Physical Abuse, Child Neglect, “Upbringing away from parent,” and Adjustment Disorder with Mixed Disturbance of Mood and Conduct. In 2017, he was diagnosed with Unspecified Trauma and Stressor Related Disorder, Unspecified Depressive Disorder, Unspecified Disruptive, Impulse-Control and Conduct Disorder, Physical Abuse, Neglect, and ADHD. DFPS notes that the “[p]rimary [p]ermancy [g]oal” for E.L.B. is unrelated adoption and “[t]his goal is in [his] best interest” because L.S.B. has “failed to participate in [DFPS] services” and has not “demonstrated an ability to provide a safe and stable home for [E.L.B.].”
In regard to L.S.B., the permanency reports explain that “she has not shown [that] she is able to provide a safe and stable home for the children.” She “has not shown a willingness or ability to provide for the basic needs of the children or an interest in parenting the children.” L.S.B. has “not participated in services recommended and referred by [DFPS],” has “tested positive . . . for [c]ocaine and [m]arijuana” use, has “refused to provide [her] caseworker with her current address
24
prior to being incarcerated,” and “has not had regular visitation with [the] children throughout her case.” Further, although L.S.B. was “referred” for a psychological assessment, substance abuse assessment, and a psychiatric assessment, “she did not attend any of the appointments.” And during the course of this case, she was “arrested for an active warrant . . . for [making a] [t]erroristic [t]hreat to a [p]ublic [s]ervant,” was incarcerated for “[a]ssault [c]aus[ing] [b]odily [i]njury,” and has “an active warrant . . . out of New Orleans, Louisiana for [m]urder.”
The trial court also admitted into evidence L.S.B.’s criminal record, revealing that on September 21, 2012, she was convicted of the misdemeanor offense of making a false report to a peace officer and sentenced to confinement for six days;23 on April 19, 2013, she was convicted of the offense of “domestic abuse battery”24 in New Orleans, Louisiana and sentenced to confinement for ninety days, “suspended”; on May 20, 2013, L.S.B. was convicted of the offense of “domestic abuse battery” in New Orleans, Louisiana and sentenced to confinement for 180 days, “suspended”; on September 25, 2013, she was convicted of the offense of “violation of protective orders” in New Orleans, Louisiana and sentenced to confinement for thirty-four days; on January 16, 2015, she was convicted of the offense of “domestic abuse
23 See TEX. PENAL CODE ANN. § 37.08(a), (c).
24 The law enforcement officer’s notes state that L.S.B., when she was three months pregnant with another child, “slapped” the child’s father “in [his] face” and he “sustained several small scratches on [his] arms and a bite mark on [his] left bicep.”
25
battery” in New Orleans, Louisiana and sentenced to confinement for 120 days, “suspended”;25 and on March 28, 2017, she was convicted of the misdemeanor offense of assault and sentenced to confinement for one year.26 The evidence of L.S.B.’s criminal record also reveals that a warrant was issued for her arrest on July 12, 2016 in Brazoria County, Texas for the offense of making a terroristic threat27 and another warrant was issued for her arrest on that same day in New Orleans, Louisiana for the offense of murder.28
25 The law enforcement officer’s notes state that L.S.B. “was involved in a verbal altercation and became irate[,] striking the [complainant] in the face [and] causing a small scratch and mild swelling.”
26 See TEX. PENAL CODE ANN. § 22.01 (Vernon Supp. 2017).
27 See id. § 22.07 (Vernon Supp. 2017). The affidavit attached to the warrant states that DFPS supervisor Axline received “5 text messages back to back,” from a cellular telephone number associated with L.S.B., stating: “Ho[] u going to get fucked up u fucked with the right one bitch cps cant save you ho[] when you die ho[]”; “U will die ho[] I know where u live [I] been watching u ho[] and police cant save u ho[]”; “Im fucked u up ho[] watch and see cps don’t pay u enough for protection ho[] u will die I promise u ho[] 4 eye ho[] u going to be in the dirt next bitch”; “Get up ho[] scary ho[]”; “U not the only one with a car ho[] im kill u ho[].” (Emphasis added) (Internal quotations omitted.)
28 The affidavit attached to the warrant states that in May 2016, New Orleans law enforcement officers began investigating the disappearance of an elderly person. The elderly person’s “bedroom appear[ed] to [have] be[en] ransacked with a large area of blood covering the floor, as well as, what appeared to be blood stained handprints on the wall.” The elderly person’s body was later found, an autopsy revealed that she had “sustained multiple stab wounds and blunt force trauma,” and her death was “ruled a homicide.” L.S.B. had been “residing in [the elderly person’s] residence” at the time she went missing and had been seen driving the elderly person’s car after her initial disappearance and after her body had been found. The car was later “recovered in a neighborhood linked to” L.S.B. and contained “several instances of blood markings believed to be that of [the elderly person].” L.S.B. also appeared on surveillance videotapes “withdrawing monies from the [elderly person’s] bank account” after her disappearance and her “debit
26
Termination of Parental Rights
In her first through fourth issues, L.S.B. argues that the trial court erred in terminating her parental rights to the children because the evidence is legally and factually insufficient to support the trial court’s findings that she engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being, she constructively abandoned the children, she failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children, and termination of her parental rights was in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (N), (O), (b)(2) (Vernon Supp. 2017).
A parent’s right to “the companionship, care, custody, and management” of her children 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) (internal quotations omitted). The United States Supreme Court has emphasized that “the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas
card had been recently used for several cash withdrawals in a city where [L.S.B.] . . . fled since the discovery of [the elderly person’s] remains.”
27
Supreme Court has concluded that “[t]his natural parental right” is “essential,” “a basic civil right of man,” and “far more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (internal quotations omitted). Consequently, “[w]e strictly construe involuntary termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012).
Because termination of parental rights is “complete, final, irrevocable and divests for all time that natural right . . . , the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent’s rights.” Holick, 685 S.W.2d at 20. 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.” TEX. FAM. CODE ANN. § 101.007 (Vernon 2014); see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the standard of proof is “clear and convincing evidence,” the Texas Supreme Court has held that the traditional legal and factual standards of review are inadequate. In re J.F.C., 96 S.W.3d at 264–68.
In conducting a legal-sufficiency review in a termination-of-parental-rights case, we must determine whether the evidence, viewed in the light most favorable to the finding, is such that the fact finder could reasonably have formed a firm belief or conviction about the truth of the matter on which DFPS bore the burden of proof. Id. In viewing the evidence in the light most favorable to the finding, we “must
28
assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so,” and we “should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However, this does not mean that we must disregard all evidence that does not support the finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we must also be mindful of any undisputed evidence contrary to the finding and consider that evidence in our analysis. Id. If we determine that no reasonable trier of fact could form a firm belief or conviction that the matter that must be proven is true, we must hold the evidence to be legally insufficient and render judgment in favor of the parent. Id.
In conducting a factual-sufficiency review in a parental-rights-termination case, we must determine whether, considering the entire record, including evidence both supporting and contradicting the finding, a fact finder reasonably could have formed a firm conviction or belief about the truth of the matter on which DFPS bore the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We should consider whether the disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266–67. “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
29
that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (internal quotations omitted).
In order to terminate the parent-child relationship, DFPS must establish, by clear and convincing evidence, one or more of the acts or omissions enumerated under Texas Family Code section 161.001(b)(1) and that termination is in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b). Both elements must be established, and termination may not be based solely on the best interest of the children as determined by the trier of fact. Id.; Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Notably though, “[o]nly one predicate finding under section 161.001[(b)](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child[ren]’s best interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
Endangering Conduct
In her first issue, L.S.B. argues that the evidence is legally and factually insufficient to support the trial court’s termination of her parental rights to the children under section 161.001(b)(1)(E) because “[t]he evidence supporting the subsection (E) finding consist[s] primarily of [L.S.B.] testing positive for illegal drugs during her 2016 pregnancy and her continued criminal activities” and “the
30
record as a whole provides scant evidence that such continued behavior . . . poses a future physical and emotional danger to [the] children.”
A trial court may order termination of the parent-child relationship if it finds by clear and convincing evidence that the parent has “engaged in conduct or knowingly placed the child[ren] with persons who engaged in conduct which endangers the physical or emotional well-being of the child[ren].” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Within the context of subsection E, endangerment encompasses “more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment.” Boyd, 727 S.W.2d at 533. Instead, “endanger” means to expose the children to loss or injury or to jeopardize their emotional or physical health. Id. (internal quotations omitted); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (internal quotations omitted).
It is not necessary to establish that a parent intended to endanger the children in order to support termination of the parent-child relationship. See In re M.C., 917 S.W.2d 268, 270 (Tex. 1996) (neglect, even in absence of physical abuse, may endanger children’s physical or emotional well-being). However, termination under subsection E requires “more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required.” In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see also In re J.W., 152 S.W.3d
31
200, 205 (Tex. App.—Dallas 2004, pet. denied). The specific danger to the children’s well-being may be inferred from parental misconduct standing alone, even if the conduct is not directed at the children and they suffer no actual injury. See Boyd, 727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied). And courts may consider parental conduct that did not occur in the children’s presence, including conduct before the children’s birth and after they have been removed by DFPS. In re A.A.M., 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Walker, 312 S.W.3d at 617.
Here, the evidence shows that L.S.B. has a history of narcotics use. Prior to the children entering into the care of DFPS, E.L.B. tested positive for marijuana at birth, indicating that L.S.B. had used narcotics while pregnant with him and while the children were under her care. See Smith v. Tex. Dep’t of Family & Protective Servs., Nos. 01-09-00173-CV, 01-09-00390-CV, 2009 WL 4359267, at *8 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.) (mem. op.) (considering prenatal treatment of child by mother, including mother’s narcotics use while pregnant, in determining endangerment); In re I.C.W., No. 02-12-00226-CV, 2013 WL 173746, at *4 (Tex. App.—Fort Worth Jan. 17, 2013, no pet.) (mem. op.) (“A mother’s use of drugs during pregnancy may . . . amount to conduct that endangers the physical and emotional well-being of the child.”). L.S.B.’s narcotics use while pregnant with E.L.B. was harmful to him and constituted physical abuse.
32
Further, during the pendency of the instant case, L.S.B. repeatedly tested positive for narcotics use. Jeffries testified that L.S.B. tested positive for marijuana use on March 12, 2013 and the test indicated that she had ingested marijuana and was close to being considered “a heavy user.” L.S.B. tested positive for marijuana use again on May 12, 2015, and Jeffries explained that, at that time, her hair was “completely saturated” with marijuana, indicating that she was, “almost [on] a daily basis,” in a “closed environment” with “marijuana in the atmosphere.” On May 26, 2016, L.S.B. tested positive for cocaine and marijuana use, and on June 2, 2016, she tested positive for cocaine, marijuana, and alcohol use, and exposure to marijuana. Evidence in the record reveals that L.S.B. was pregnant with another child, not a subject of this appeal, when she was tested positive for narcotics use on May 26, 2016 and June 2, 2016.29 See Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“Evidence as to how a parent has treated another child . . . is relevant . . . .”). Jeffries further testified that L.S.B.’s positive narcotics-testing results show that she had “continu[ed] [to] use drugs over a period of time” and her narcotics use constituted “a continuing course of conduct.”
29 DFPS caseworker Bernal similarly testified that L.S.B. tested positive for narcotics use while pregnant with another child during the pendency of this case and using narcotics while pregnant is harmful to the child and constitutes physical abuse. See Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
33
Moreover, Jeffries explained that L.S.B. had to have used narcotics on more than one occasion in order to receive positive narcotics-testing results.
Further, L.S.B.’s first FSP required her to participate in a substance abuse assessment and “follow [all] recommendations,” which included participating in “outpatient” “substance abuse services.” There is no indication in the record that L.S.B. participated in any outpatient substance abuse services. Further, her second FSP required her to participate in another substance abuse assessment, which L.S.B. did not complete. And L.S.B.’s visits with the children were stopped because of her positive narcotics-testing results.
Child Advocates caseworker Porter testified that L.S.B. repeatedly failed to submit to narcotics testing when asked30 and did not maintain a “drug-free” lifestyle.31 According to Porter, if a parent, such as L.S.B., has had a problem with narcotics use in the past, including narcotics use while pregnant, and continues to test positive for narcotics use after her children have been removed from her care, it
30 A fact finder may reasonably infer from a parent’s refusal to take a narcotics test that the parent is using narcotics. In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.); see also In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
31 Other witnesses also testified that L.S.B. “continued to use drugs while th[e] [instant] case [was] pending” and repeatedly tested positive for narcotics use. And each of the children’s permanency reports states that L.S.B. “tested positive . . . for [c]ocaine and [m]arijuana” use and did not participate in her substance abuse assessment.
34
indicates that the parent is “still doing . . . the same behavior which can [further] put the children at risk” of harm.
“As a general rule, conduct that subjects . . . child[ren] to a life of uncertainty and instability endangers the physical and emotional well-being of [the] child[ren].” In re R.W., 129 S.W.3d at 739. And illegal narcotics use and its effect on an individual’s ability to parent may constitute an endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345–46 (Tex. 2009); In re A.A.M., 464 S.W.3d at 426–27. Notably, illegal narcotics use creates the possibility that a parent will be impaired or imprisoned, and thus, incapable of parenting, supporting termination of parental rights under subsection E. In re A.A.M., 464 S.W.3d at 426; Walker, 312 S.W.3d at 617–18; see also In re M.R.R., No. 10-15-00303-CV, 2016 WL 192583, at *5 (Tex. App.—Waco Jan. 14, 2016, no pet.) (mem. op.) (“A parent’s continued drug use demonstrates an inability to provide for the child’s emotional and physical needs and to provide a stable environment for the child.”).
The trial court could have reasonably found that L.S.B.’s continued narcotics use during the entirety of this case, including while pregnant with at least two of her children, qualified as a continuing course of conduct that subjected the children to a life of uncertainty and instability, thereby endangering their physical and emotional well-being. See In re A.A.M., 464 S.W.3d at 426–27 (“[T]he trial court reasonably could have concluded that the [parent]’s continued pattern of drug use, even after
35
[DFPS]’s involvement, displayed a voluntary, deliberate, continued, and conscious course of endangering conduct . . . .”); Walker, 312 S.W.3d at 617–18 (“Evidence of narcotics use and its effect on a parent’s life and ability to parent may establish that the parent has engaged in an endangering course of conduct . . . .”); see also In re K.R.G., No. 01-16-00537-CV, 2016 WL 7368082, at *6–7 (Tex. App.—Houston [1st Dist.] Dec. 15, 2016, pet. denied) (mem. op.) (parent’s continued narcotics use constituted continuing course of conduct endangering children’s physical and emotional well-being where evidence showed history of narcotics use, parent repeatedly tested positive for narcotics use during case, parent did not comply with FSP related to substance-abuse requirements, and parental visitation with children suspended due to positive narcotics-test results).
Additionally, “evidence of criminal conduct, convictions, or imprisonment is relevant to a review of whether a parent engaged in a course of conduct that endangered the well-being of the child[ren].” In re S.R., 452 S.W.3d 351, 360–61 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); see also In re A.A.M., 464 S.W.3d at 426–27 (criminal offenses “significantly harm the parenting relationship” and “can constitute endangerment even if the criminal conduct transpires outside the child[ren]’s presence”). Although incarceration alone will not support termination of parental rights, evidence of criminal conduct, convictions, and imprisonment may support a finding of endangerment. In re T.M., No. 14-14-00948-CV, 2015 WL
36
1778949, at *4 (Tex. App.—Houston [14th Dist.] Apr. 16, 2015, no pet.) (mem. op.); In re I.C.W., 2013 WL 173746, at *5 (imprisonment “is a fact properly considered on the issue of endangerment”); see also In re A.A.M., 464 S.W.3d at 426–27 (recognizing parent’s imprisonment demonstrated deliberate course of conduct qualifying as endangering conduct). If the imprisonment of the parent reflects a voluntary, deliberate, and conscious course of conduct, it qualifies as conduct that endangers the children. See Walker, 312 S.W.3d at 617; see also In re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied) (“An environment which routinely subjects a child to the probability that she will be left alone because her parents are once again jailed . . . endangers both the physical and emotional well-being of a child.”).
Here, the record reveals that on September 21, 2012, L.S.B. was convicted of the misdemeanor offense of making a false report to a peace officer and sentenced to confinement for six days;32 on April 19, 2013, she was convicted of the offense of “domestic abuse battery”33 in New Orleans, Louisiana and sentenced to confinement for ninety days, “suspended”; on May 20, 2013, she was convicted of
32 See TEX. PENAL CODE ANN. § 37.08(a), (c).
33 The law enforcement officer’s notes state that L.S.B., when she was three months pregnant with another child, “slapped” the child’s father “in [his] face” and he “sustained several small scratches on [his] arms and a bite mark on [his] left bicep.” See generally Jordan, 325 S.W.3d at 724 (“Evidence as to how a parent has treated another child or spouse is relevant . . . .”).
37
the offense of “domestic abuse battery” in New Orleans, Louisiana and sentenced to confinement for 180 days, “suspended”; on September 25, 2013, she was convicted of the offense of “violation of protective orders” in New Orleans, Louisiana and sentenced to confinement for thirty-four days; on January 16, 2015, she was convicted of the offense of “domestic abuse battery” in New Orleans, Louisiana and sentenced to confinement for 120 days, “suspended”;34 and on March 28, 2017, she was convicted of the misdemeanor offense of assault and sentenced to confinement for one year.35 The evidence of L.S.B.’s criminal record also reveals that a warrant was issued for her arrest on July 12, 2016 in Brazoria County, Texas for the offense of making a terroristic threat36 and another warrant was issued for her arrest on that same day in New Orleans, Louisiana for the offense of murder.37
34 The law enforcement officer’s notes state that L.S.B. “was involved in a verbal altercation and became irate[,] striking the [complainant] in the face [and] causing a small scratch and mild swelling.”
35 See TEX. PENAL CODE ANN. § 22.01.
36 See id. § 22.07. The affidavit attached to the warrant states that DFPS supervisor Axline received “5 text messages back to back,” from a cellular telephone number associated with L.S.B., stating: “Ho[] u going to get fucked up u fucked with the right one bitch cps cant save you ho[] when you die ho[]”; “U will die ho[] I know where u live [I] been watching u ho[] and police cant save u ho[]”; “Im fucked u up ho[] watch and see cps don’t pay u enough for protection ho[] u will die I promise u ho[] 4 eye ho[] u going to be in the dirt next bitch”; “Get up ho[] scary ho[]”; “U not the only one with a car ho[] im kill u ho[].” (Emphasis added) (Internal quotations omitted.)
37 The affidavit attached to the warrant states that in May 2016, New Orleans law enforcement officers began investigating the disappearance of an elderly person. The elderly person’s “bedroom appear[ed] to [have] be[en] ransacked with a large area of blood covering the floor, as well as, what appeared to be blood stained
38
Child Advocates caseworker Porter also testified that the children entered into DFPS’s care when L.S.B. was arrested for the criminal offense of making a false report to a peace officer and she could not provide the name of anyone who could take care of the children while she was incarcerated. And L.S.B. herself admitted in her 2012 psychological evaluation that “DFPS became involved with her family” because she “went to jail and no one could pick up [the] kids.” (Internal quotations omitted.) Further, Porter testified that L.S.B. was incarcerated in 2013 related to a violation of an “order of protection and domestic battery,” incarcerated between May 2013 and January 2015 related to “several different charges,” and incarcerated at the time of trial.38 According to Porter, L.S.B.’s criminal activities “span[ned] the duration of th[is] case” and show a “pattern of behavior.” And her continued criminal activity endangers the children because she cannot care for them while she
handprints on the wall.” The elderly person’s body was later found, an autopsy revealed that she had “sustained multiple stab wounds and blunt force trauma,” and her death was “ruled a homicide.” L.S.B. had been “residing in [the elderly person’s] residence” at the time she went missing and had been seen driving the elderly person’s car after her initial disappearance and after her body had been found. The car was later “recovered in a neighborhood linked to” L.S.B. and contained “several instances of blood markings believed to be that of [the elderly person].” L.S.B. also appeared on surveillance videotapes “withdrawing monies from the [elderly person’s] bank account” after her disappearance and her “debit card had been recently used for several cash withdrawals in a city where [L.S.B.] . . . fled since the discovery of [the elderly person’s] remains.”
38 DFPS caseworker Bernal also noted that L.S.B. was incarcerated at the time of trial and her behavior during the time that the children were in the care of DFPS “led” to her “incarceration[s].”
39
is incarcerated. L.S.B. has wholly failed to show an ability to maintain a “crime-free” life-style, indicating that she cannot provide a safe and stable environment for the children, and her unwillingness to stop engaging in criminal activity means that she is not doing what is necessary to prove that she can appropriately care for the children.
DFPS Program Director Easley testified that L.S.B. was “connected to a murder case or [a] missing person’s case . . . in New Orleans,” Louisiana because L.S.B. was “renting from [the missing elderly person],” “was seen driving [her] car,” and was “the last person that [she] was seen with.” And Easley noted that L.S.B. continued to engage in criminal activity throughout the pendency of this case and was incarcerated in August 2016. Further, her repeated incarcerations in this case have affected L.S.B.’s ability to maintain contact with the children, caused the children anxiety and harm, and endangered the children’s well-being.
L.S.B.’s FSPs also indicate that she was “suspect[ed]” of “burning down” the home of J.S.P.’s father and there had been “domestic violence reports between [L.S.B.] and [the father of J.S.B.]” over a period of several years. And the FSPs required L.S.B. to refrain from engaging in “illegal criminal activities.”
DFPS supervisor Axline testified that L.S.B. threatened to kill her and called her “derogatory names” via text messages during the time that this case was pending. And DFPS caseworker Bernal explained that L.S.B.’s history of criminal activity
40
“shows a pattern of aggressive” and “impulsive” behavior, raising “domestic violence” concerns because she has “been charged with assaultive, volatile criminal [actions].” According to Bernal, if L.S.B. is convicted of the offense murder in Louisiana, “she will be looking at a long life sentence which [a]ffects the children.” And by continuing to engage in criminal activity, L.S.B. is demonstrating that she is “not thinking about [the] children” and “choosing [her] actions over the welfare of [the] children.”
The record clearly indicates that L.S.B., even after knowing that her parental rights were in jeopardy, continued to engage in criminal activity, which only increased in seriousness over the course of this case and resulted in multiple incarcerations. See In re C.A.B., 289 S.W.3d 874, 885–86 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (parent engaging in criminal acts resulting in incarceration, even after knowing her parental rights in jeopardy, endangered her child’s emotional well-being); In re J.N.R., 982 S.W.2d 137, 142 (Tex. App.—Houston [1st Dist.] 1998, no pet.); see also In re S.H., No. 07-15-00177-CV, 2015 WL 5559979, at *3 (Tex. App.—Amarillo Sept. 16, 2015, no pet.) (trial court could have determined parent’s arrest after child removed demonstrated risk parent would continue to pursue endangering course of conduct if child placed back in her care); In re S.T., 263 S.W.3d 394, 402 (Tex. App.—Waco 2008, pet. denied) (evidence father engaged in criminal conduct after child’s removal supported termination
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under subsection (E)). Conduct that routinely subjects children to the probability that they will be left alone because a parent is jailed endangers both the physical and emotional well-being of the children. Walker, 312 S.W.3d at 617; see also In re T.G.R.-M., 404 S.W.3d. 7, 14–15 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (considering “charges stemming from . . . two arrests [that] were ultimately dismissed” and noting each time parent confined “she was absent from [child]’s life and was not able to provide for [child’s] physical and emotional needs”); In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (holding parent’s creation of “emotional vacuum” in child’s life by being absent due to incarceration constitutes evidence of endangering child’s emotional well-being).
L.S.B.’s repeated decisions to engage in criminal activity and multiple incarcerations have prevented her from ensuring that the children are properly taken care of, reveal that she could not maintain a safe and stable environment for the children, and indicate a course of conduct that is endangering to the children. See In re M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.) (observing father’s incarceration affected his ability to ensure child properly taken care of, prevented him from finding better living conditions or providing financial support for child, and indicated course of conduct endangering to his child); see also In re S.H., 2015 WL 5559979, at *3 (trial court could have determined parent’s arrest after child removed demonstrated risk parent would continue to pursue endangering
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course of conduct if child placed back in her care); Hall v. Tex. Dep’t of Protective & Regulatory Servs., No. 01-02-00664-CV, 2003 WL 321525, at *7 (Tex. App.—Houston [1st Dist.] Feb. 13, 2003, no pet.) (mem. op.) (mother’s most recent arrest not an “isolated incident”).
The record also reflects that L.S.B. has engaged in violent and abusive behavior both before the children were removed from her care and after. Both of L.S.B.’s FSPs note that she was “suspect[ed]” of “burning down” the home of J.S.B.’s father because she was upset with him for leaving her. And “[t]here [were] domestic violence reports between [L.S.B.] and [J.S.B.’s father]” over a period of several years. Further, her second FSP states that while the children were in her care, L.S.B. “displayed behaviors that exposed [the] children to danger” and there was “a history of domestic violence in [her] home.” Child Advocates caseworker Porter also noted that L.S.B. was required to participate in domestic violence classes as part of her FSPs because she had previously been “a perpetrator” of domestic violence. And DFPS caseworker Bernal explained that L.S.B.’s history of criminal activity “shows a pattern of aggressive” and “impulsive” behavior, raising “domestic violence” concerns because she has “been charged with assaultive, volatile criminal [actions].” According to Bernal, L.S.B. was “convicted of numerous domestic violence charges . . . in 2013, [20]14, and [20]15.”
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A review of L.S.B.’s criminal records also reveal, as Porter described, a “pattern” of “violent” behavior that “could put the children at risk of harm.” For instance, during the pendency of this case, L.S.B. has either been convicted of or charged with the offenses of “domestic abuse battery,” “violation of protective orders,” or assault on at least seven different occasions.39 And she had two warrants issued for her arrest for the offenses of making a terroristic threat and murder.
In regard to the offense of making a terroristic threat, the affidavit attached to the warrant, states that DFPS supervisor Axline received five text messages from a cellular telephone number associated with L.S.B., stating: “Ho[] u going to get fucked up u fucked with the right one bitch cps cant save you ho[] when you die ho[]”; “U will die ho[] I know where u live [I] been watching u ho[] and police cant save u ho[]”; “Im fucked u up ho[] watch and see cps don’t pay u enough for protection ho[] u will die I promise u ho[] 4 eye ho[] u going to be in the dirt next bitch”; “Get up ho[] scary ho[]”; “U not the only one with a car ho[] im kill u ho[].” (Emphasis added) (Internal quotations omitted.) And in regard to the offense of murder, the affidavit attached to the warrant states that an elderly person disappeared
39 In one instance, L.S.B., who was three months pregnant with another child, “slapped” that child’s father “in [his] face,” and he “sustained several smalls scratches on [his] arms and a bite mark on [his] left bicep.” Another time, L.S.B. “was involved in a verbal altercation and became irate[,] striking the [complainant] in the face [and] causing a small scratch and mild swelling.” See generally Jordan, 325 S.W.3d at 724 (“Evidence as to how a parent has treated another child or spouse is relevant . . . .”).
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and law enforcement officers found her bedroom “ransacked with a large area of blood covering the floor, as well as, what appeared to be blood stained fingerprints on the wall.” When the elderly person’s body was later found, an autopsy revealed that she had “sustained multiple stab wounds and blunt force trauma,” and her death was “ruled a homicide.” The elderly person’s car, which L.S.B. had been seen driving after her disappearance and which was recovered in a neighborhood associated with L.S.B., contained “several instances of blood markings believed to be that of [the elderly person].”
A parent’s abusive or violent conduct can produce an environment that endangers the children’s well-being. In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—Texarkana 2015, no pet.); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.); see also D.N. v. Tex. Dep’t of Family & Protective Servs., No. 03-15-00658-CV, 2016 WL 1407808, at *2 (Tex. App.—Austin Apr. 8, 2016, no pet.) (mem. op.) (“[D]omestic violence may constitute endangerment, even if the violence is not directed at the child.”). While direct physical abuse clearly endangers children, domestic violence, want of self-control, and a propensity for violence may also be considered as evidence of endangerment. See In re I.J.A., No. 04-09-00787-CV, 2010 WL 2403728, at *3 (Tex. App.—San Antonio June 16, 2010, no pet.) (mem. op.); In re J.I.T.P., 99 S.W.3d at 845; see also In re B.J.B., 546 S.W.2d 674, 677 (Tex. App.—Texarkana 1977, writ ref’d
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n.r.e.) (considering father’s lack of self-control and propensity for violence and aggression). A parent’s criminal background is particularly relevant if it demonstrates a tendency towards violence, especially violence against family members. See A.W. v. Tex. Dep’t of Family & Protective Servs., No. 03-17-00048-CV, 2017 WL 3044243, at *3 (Tex. App.—Austin July 14, 2017, no pet.) (mem. op.); Jordan, 325 S.W.3d at 724 (“Abusive and violent criminal conduct by a parent can produce an environment that endangers the well-being of a child.”); see also In re T.G.R.-M., 404 S.W.3d at 14 (“Another factor that may contribute to an environment that endangers a child’s well-being is a parent’s abusive or violent criminal conduct. . . . Evidence that a parent previously has engaged in abusive conduct allows an inference that the parent’s violent behavior will continue in the future.”).
Further, courts have routinely considered evidence of parent-on-parent physical abuse in termination cases without requiring evidence that the conduct result in a criminal conviction. See In re W.S.M., 107 S.W.3d 772, 772–73 (Tex. App.—Texarkana 2003, no pet.); Spangler v. Tex. Dep’t of Protective & Regulatory Servs., 962 S.W.2d 253, 260 (Tex. App.—Waco 1998, no pet.); Allred v. Harris Cty. Child Welfare Unit, 615 S.W.2d 803, 806 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.); see also In re DC, No. 01-11-00387-CV, 2012 WL 682289, at *9–11 (Tex. App.—Houston [1st Dist.] Mar. 1, 2012, pet. denied) (mem. op.) (mother’s
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testimony father physically and mentally abused her supported parental termination under subsection (E)). And evidence that a parent has engaged in abusive or violent conduct in the past permits an inference that she will continue her violent behavior in the future. Jordan, 325 S.W.3d at 724; see also Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex. App.—Fort Worth 2007, no pet.) (“[T]rial courts [have] relied on evidence of past violence as an indicator of future behavior in parental termination and child custody cases.”).
Viewing the evidence in the light most favorable to the jury’s finding, we conclude that the jury could have formed a firm belief or conviction that L.S.B. engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). And, viewing the evidence in a neutral light, we conclude that a reasonable fact finder could have formed a firm belief or conviction that L.S.B. engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being. See id.
Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court’s finding that L.S.B. engaged, or knowingly placed the children with persons who engaged, in conduct that endangered their physical and emotional well-being. See id.
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We overrule L.S.B.’s first issue.40
Best Interest of Children
In her fourth issue, L.S.B. argues that the evidence is legally and factually insufficient to support the trial court’s finding that termination of her parental rights was in the best interest of the children because the “best interest analysis begins with the presumption that the child[ren]’s best interest is served by keeping [them] with [their] natural parent,” “[t]he evidence that rebuts this presumption pertains mainly to [L.S.B.]’s criminal activities, history of domestic violence, illegal drug usage[,] and failure to appear for scheduled visit[s],” and “no rational trier of fact could have formed a strong conviction or belief that severing the mother-child[] bond is in the children’s best interest.”
In determining whether the termination of L.S.B.’s parental rights is in the best interest of the children, we may consider several factors, including: (1) the children’s desires; (2) the current and future physical and emotional needs of the children; (3) the current and future emotional and physical danger to the children; (4) the parental abilities of the parties seeking custody; (5) whether programs are
40 Having held that the evidence is legally and factually sufficient to support the trial court’s finding under section 161.001(b)(1)(E), we need not address L.S.B.’s second and third issues challenging the trial court’s findings under section 161.001(b)(1)(N) and (O). See In re A.V., 113 S.W.3d 355, 363 (Tex. 2003); Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 618 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also TEX. R. APP. P. 47.1.
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available to assist those parties; (6) plans for the children by the parties seeking custody; (7) the stability of the proposed placement; (8) the parent’s acts or omissions that may indicate that the parent-child relationship is not proper; and (9) any excuse for the parent’s acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The Holley factors are not exhaustive, and there is no requirement that DFPS prove all factors as a condition precedent to the termination of parental rights. See In re C.H., 89 S.W.3d at 27.
In regard to the children’s desires, the children’s permanency reports, prepared in April 2017, state that D.M.W. reports that her “foster parents treat her very well” and “she does not wish to leave [her foster] home.” And D.M.W. and J.S.B. find that their respective placements provide “a sense of comfort, predictability, and safety.” See C.H. v. Dep’t of Family & Protective Servs., Nos. 01-11-00385-CV, 01-11-00454-CV, 01-11-00455-CV, 2012 WL 586972, at *9 (Tex. App.—Houston [1st Dist.] Feb. 23, 2012, pet. denied) (mem. op.) (children expressed desire not to return to mother and stay in current placement); In re C.M.C., 273 S.W.3d 862, 876 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (child did not want to return to live with mother).
Although E.L.B. has not expressed his desire, “[w]hen children are too young to express their desires, the fact finder may consider that the children have bonded
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with the foster family, are well-cared for by them, and have spent minimal time with [their] parent.” In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Here, the record shows that the children’s placements are meeting their needs, provide them with “appropriate supervision, developmental nurturing[,] and discipline,” and constitute safe and stable homes. See id.; In re U.P., 105 S.W.3d at 230; see also In re M.L.R-U., Jr., 517 S.W.3d 228, 238 (Tex. App.—Texarkana 2017, no pet.) (considering evidence foster family provide safe and healthy environment when determining children’s desires). Further, there is evidence showing that none of the children are bonded with L.S.B., they are not excited to see her at visits, often times they do not recognize her or know who she is, L.S.B. has only seen the children seven times over the course of five years, and visits with L.S.B. make the children nervous and cause anxiety. As DFPS supervisor Axline explained, the children, when they have seen L.S.B., treat her “as if she was any other person [that] they were meeting” and not like she was their mother. See In re J.D., 436 S.W.3d at 118; In re U.P., 105 S.W.3d at 230. And no evidence indicates that any of the children have expressed a desire to return to L.S.B.’s care.41 See In re S.J.R.-Z., No. 04-17-00238-CV, 2017 WL 3431473, at *13 (Tex. App.—San
41 We note that E.L.B. was removed from L.S.B.’s care when he was three months old and has lived almost his entire life without her.
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Antonio Aug. 9, 2017, no pet.). In fact, Bernal testified that the children would not be negatively impacted if L.S.B.’s rights were terminated.
In regard to the children’s current and future physical and emotional needs, L.S.B. has not demonstrated that she is capable of providing a safe and stable home for the children, is not able to maintain a “crime-free” or “drug-free” lifestyle, and is frequently incarcerated. Before DFPS took custody of the children, they lived with L.S.B., who had “a history of domestic violence in [her] home.” It was also reported that the children, while living with L.S.B., were “dirty” and had not been bathed, and E.L.B. tested positive for marijuana at birth. Further, there was an allegation that L.S.B. had left the children, who were four years old, two years old, and an infant at the time, home alone while “she burned down” the home of J.S.B.’s father. And D.M.W., when she was three years old, was found wandering around an apartment complex alone. See TEX. FAM. CODE ANN. § 263.307(b)(3), (8), (11), (12)(A), (C), (D), (E), (F) (Vernon Supp. 2017) (considering harm to child, history of substance abuse by child’s family, willingness and ability of child’s family to effect positive environmental and personal changes, and whether parent demonstrates adequate parenting skills, including adequate health and nutritional care, guidance and supervision, safe physical home environment, and understanding of child’s needs); In re B.J., No. 01-15-00886-CV, 2016 WL 1389054, at *10–11 (Tex. App.—Houston [1st Dist.] Apr. 7, 2016, no pet.) (mem. op.) (mother did not
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demonstrate she could provide safe and stable home); In re Z.B., No. 02-14-00175-CV, 2014 WL 5409103, at *8 (Tex. App.—Fort Worth Oct. 23, 2014, no pet.) (mem. op.) (mother, at times, declined to care for child and her instability represented danger to child’s development); In re J.D., 436 S.W.3d at 118 (“A fact finder may infer from a parent’s past inability to meet a child’s physical and emotional needs an inability or unwillingness to meet a child’s needs in the future.”); In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.) (child’s need for stable, permanent home paramount consideration in best interest determination); Adams v. Tex. Dep’t of Family & Protective Servs., 236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (parent’s history of failing to provide children with stable and nurturing environment demonstrates termination of parental rights in best interest of children).
The children have been described as having “behavioral issues” and “special needs.” When they entered DFPS’s care, they had “educational issues,” which had not been addressed by L.S.B. And D.M.W was “behind in school.” According to Child Advocates caseworker Porter, the children need an environment that is “conducive to them having a healthy upbringing,” and a safe and stable home would provide the children with stability, which is particularly important for school-age children. See TEX. FAM. CODE ANN. § 263.307(a) (“[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best
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interest.”); In re K.C., 219 S.W.3d at 931 (child’s need for stable, permanent home paramount consideration in best interest determination).
Currently, D.M.W., a nine year old, “exhibits aggressive and violent behaviors when she [is] angry,” and she attends “special education classes,” “play therapy,” and psychotherapy on a weekly basis. D.M.W. has been diagnosed with ADHD, Adjustment Disorder, Anxiety Disorder, Speech Sound Disorder, Child Neglect, Child Physical Abuse, Suspected Intellectual Disability Mild (Provisional), Specific Learning Disorder with Impairment in Reading, Mathematics, and Written Expression, Insomnia Disorder, ODD, and Borderline Intellectual Functioning Range. She is taking medication for ADHD and insomnia. Her current placement “spends [an] extensive [amount of] time working with her to help her improve” in school, ensures that she attends therapy, meets “all” of her needs, and provides “a sense of comfort, predictability, and safety” for D.M.W.
In regard to J.S.B., he, a six year old, “can be aggressive and has loud tantrums when things do not go his way.” He attends play therapy on a weekly basis and has been diagnosed with ADD, Adjustment Disorder, Child Neglect, Suspected Child Physical Abuse, ADHD, Unspecified Trauma and Stressor Related Disorder, and Disruptive Mood Dysregulation Disorder. He currently takes medication for AHDH and insomnia, and with medication, J.S.B. “has shown some improvement,” but he “continues to struggle with focusing on tasks and his aggression.” His current
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placement “has found preventative measures” to address J.S.B.’s behavioral issues, acts “appropriate[ly]” in regard to his medication, and provides “a sense of comfort, predictability, and safety” for J.S.B.
E.LB., a four year old, “struggles with redirection,” “will have frequent temper tantrums when things do not go his way,” and is “very rambunctious at times.” He attends play therapy weekly and speech therapy “every other week.” He has been diagnosed with ADD, Adjustment Disorder, Child Physical Abuse, Child Neglect, “Upbringing away from parent,” Adjustment Disorder, Unspecified Trauma and Stressor Related Disorder, Unspecified Depressive Disorder, Unspecified Disruptive, Impulse-Control, and Conduct Disorder, and ADHD. E.L.B. attends “prekindergarten,” but has “trouble behaving and sitting still while in class.” His foster parents are “being appropriate with . . . school,” and his foster home is safe and meeting his needs. See TEX. FAM. CODE ANN. § 263.307(a) (“[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest.”); In re A.M., 495 S.W.3d 573, 581–82 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (foster parents provided stable home where children received counseling and thriving); In re Z.B., 2014 WL 5409103, at *9 (considering foster family’s ability to meet child’s physical and emotional needs); In re K.C., 219 S.W.3d at 931 (child’s need for stable, permanent home paramount consideration in best interest determination).
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In regard to the current and future emotional and physical danger to the children, the record reflects that L.S.B. has engaged in violent and abusive behaviors, both before the children were removed from her care and after. See In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco 2012, pet. denied) (“Evidence of past misconduct or neglect can be used to measure a parent’s future conduct.”); Schaban-Maurer, 238 S.W.3d at 824 (“[T]rial courts [have] relied on evidence of past violence as an indicator of future behavior in parental termination and child custody cases.”). Both of L.S.B.’s FSPs note that she was “suspect[ed]” of “burning down” the home of J.S.B.’s father because she was upset with him for leaving her. And “[t]here [were] domestic violence reports between [L.S.B.] and [J.S.B.’s father]” over a period of several years. Further, her second FSP states that while the children were in her care, she “displayed behaviors that exposed [them] to danger” and there was “a history of domestic violence in [her] home.” Child Advocates caseworker Porter also noted that L.S.B. was required to participate in domestic violence classes as part of her FSPs because she had previously been “a perpetrator” of domestic violence. And DFPS caseworker Bernal explained that L.S.B.’s history of criminal activity “shows a pattern of aggressive” and “impulsive” behavior and raises “domestic violence” concerns because she has “been charged with assaultive, volatile criminal [actions].” According to Bernal, L.S.B. was “convicted of numerous domestic violence charges . . . in 2013, [20]14, and [20]15.”
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A review of L.S.B.’s criminal records also reveals, as Porter described, a “pattern” of “violent” behavior that “could put the children at risk of harm.” For instance, during the pendency of this case, L.S.B. has either been convicted of or charged with the offenses of “domestic abuse battery,” “violation of protective orders,” or assault on at least seven different occasions. And she had two warrants issued for her arrest for the offenses of making a terroristic threat and murder. In regard to the offense of making a terroristic threat, the affidavit attached to the warrant states that L.S.B. threatened to kill DFPS supervisor Axline. And in regard to the offense of murder, the affidavit attached to the warrant indicates that L.S.B. is suspected of, at the very least, being involved with the death of an elderly person, who “sustained multiple stab wounds and blunt force trauma.”
L.S.B. also has an extensive history of narcotics use. Prior to the children entering into the care of DFPS, E.L.B. tested positive for marijuana at birth. During the pendency of this case, L.S.B. tested positive for narcotics use on four separate occasions over a period of several years.42 Jeffries, an expert in interpreting narcotics-test results, stated that L.S.B. was close to being considered “a heavy user” of marijuana, her hair was “completely saturated” with marijuana, and it was likely
42 The record also reveals that L.S.B. failed to submit to narcotics testing each time it was requested by DFPS. See In re C.R., 263 S.W.3d at 374 (fact finder may reasonably infer from parent’s refusal to take narcotics test parent using narcotics); see also In re C.A.B., 289 S.W.3d at 885.
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that L.S.B., “almost [on] a daily basis,” was in a “closed environment” with “marijuana in the atmosphere.” Jeffries also explained that L.S.B.’s positive test results indicate that she had “continu[ed] [to] use drugs over a period of time” and this was indicative of “a continuing course of conduct” by L.S.B. Further, the record reveals that L.S.B. exposed another unborn child to cocaine, marijuana, and alcohol during the pendency of this case. See TEX. FAM. CODE ANN. § 263.307(b)(7), (8), (12)(D), (E) (considering history of abusive or assaultive conduct and substance abuse by child’s family, ability to provide safe home environment, and ability to protect child from repeated exposure to violence); In re B.J., 2016 WL 1389054, at *11–12 (noting mother’s criminal record and continued narcotics use in determining current and future emotional and physical danger to children); In re T.L.S., No. 01-12-00434-CV, 2012 WL 6213515, at *6 (Tex. App.—Houston [1st Dist.] Dec. 13, 2012, no pet.) (mem. op.) (considering parent’s criminal history and narcotics use in analyzing present and future emotional and physical danger to children); In re S.B., 207 S.W.3d 877, 886–87 (Tex. App.—Fort Worth 2006, no pet.) (parent’s narcotics use considered in determining current and future emotional and physical danger to children); see also In re A.M., 385 S.W.3d at 82 (“Evidence of past misconduct or neglect can be used to measure a parent’s future conduct.”); Jordan, 325 S.W.3d at 724 (“Evidence as to how a parent has treated another child . . . is relevant . . . .”).
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In regard to L.S.B.’s parental ability, the record reveals that the children came into the care of DFPS when L.S.B. was arrested for making a false report to a peace officer and she could not provide the name of anyone to take the children at the time she was arrested.43 Prior to the children entering into the care of DFPS, they, while living with L.S.B., were found to be “dirty” and had not been bathed, and E.L.B. tested positive for marijuana at birth. See In re A.H., No. 04-15-00416-CV, 2015 WL 7565569, at *8 (Tex. App.—San Antonio Nov. 25, 2015, no pet.) (mem. op.) (considering mother’s prenatal care of child in determining parental abilities). Further, there were allegations that L.S.B. had left the children, who at the time were four years old, two years old, and an infant, home alone while she “burn[ed] down” the home of J.S.B.’s father, and D.M.W., when she was three years old, was found wandering around an apartment complex alone. L.S.B.’s second FSP also indicates that she “displayed behaviors that exposed [the] children to danger” and had “a history of domestic violence in [her] home.” Further, her 2012 psychological evaluation states that L.S.B., “a single parent,” is unemployed, has “limited resources,” and her “level of functioning . . . [is] low and likely to impact her ability to parent her children effectively, make good decisions for their well-being, and provide a stable home environment.”
43 L.S.B. admitted during her 2012 psychological evaluation that “DFPS became involved with her family” because she “went to jail and no one could pick up [the] kids.” (Internal quotations omitted.)
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Moreover, the children, when they entered into DFPS’s care, had “educational issues” and “behavioral issues,” which had not been addressed by L.S.B. D.M.W was “behind in school.” And L.S.B. has wholly failed to demonstrate that she can provide the children with a safe and stable environment, has continued to use narcotics throughout the pendency of this case, did not complete either of her FSPs, refused to provide DFPS with her address, and has been convicted of criminal offenses and repeatedly incarcerated, including at the time of trial. See TEX. FAM. CODE ANN. § 263.307(b)(3), (7), (8), (11) (12)(A), (B), (C), (D), (E) (considering parent’s ability to provide safe home environment, harm to child, history of abusive or assaultive conduct by child’s family, ability to protect child from repeated exposure to violence, willingness and ability to effect positive environmental and personal changes, and whether parent demonstrates adequate parenting skills); In re B.J., 2016 WL 1389054, at *12 (considering children’s developmental delays, lack of safe or stable home, and parent’s narcotics use when determining parental ability); In re J.J.G., No. 14-15-00094-CV, 2015 WL 3524371, at *7 (Tex. App.—Houston [14th Dist.] June 4, 2015, no pet.) (mem. op.) (when determining parental ability considering “past performance as a parent,” narcotics use, lack of stable employment, and failure to comply with court-ordered services); In re J.D., 436 S.W.3d at 119 (“A parent’s inability to provide adequate care for her children,
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unstable lifestyle, lack of a home and income, lack of parenting skills, and poor judgment may be considered when looking at the children’s best interest.”).
Further, we note that when L.S.B. has had visits with the children, her interactions with D.M.W. have not been positive. L.S.B. has also appeared frustrated with the children, agitated, and “on-edge” during her visits. And the children appeared to “easily overwhelm her.” She also declined the option of spending extra time with the children when it has been offered by DFPS, has not shown up for all scheduled visits with the children, has only seen the children seven times during the last five years, and has not provided for the children during the pendency of this case. See In re A.H., 2015 WL 7565569, at *8 (parents appeared overwhelmed and distant at visits with children and father did not regularly see children); In re Z.R.M., No. 04-15-00063-CV, 2015 WL 4116049, at *7 (Tex. App.—San Antonio July 8, 2015, no pet.) (mem. op.) (considering mother’s late arrival to visits with child and “fail[ure] to appear [at some visits] at all” in determining parental abilities); In re S.K., 198 S.W.3d 899, 907 (Tex. App.—Dallas 2006, pet. denied) (mother overwhelmed by care of children). The children’s permanency reports explain that L.S.B. “has not shown [that] she is able to provide a safe and stable home for the children” or “a willingness or ability to provide for the basic needs of the children or an interest in parenting [them].”
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In regard to programs available to assist L.S.B., the record reveals that she did not complete either of her FSPs. See In re J.-M.A.Y., Nos. 01-15-00469-CV, 01-15-00589-CV, 2015 WL 6755595, at *7 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, pet. denied) (mem. op.) (“[A] factfinder may infer from a parent’s failure to take the initiative to complete the services required to regain possession of her children that she does not have the ability to motivate herself to seek out available resources needed now or in the future.”); see also In re B.J., 2016 WL 1389054, at *12 (mother did not perform all of her services required by FSP); In re Z.B., 2014 WL 5409103, at *9 (mother did not take advantage of DFPS services offered to her).
In regard to the stability of the proposed placement and the plans for the children, DFPS caseworker Bernal testified that the goal for the children is an unrelated adoption because they “need parents who are going to be very active in their lives, [who can] provide constant attention, redirection, be able to . . . be structured and stable . . . and be consistent with them.” The children’s permanency reports, completed in April 2017, also state that an unrelated adoption for the children is in their best interest because L.S.B. has “failed to participate in [DFPS] services” and has not “demonstrated an ability to provide a safe and stable home for [them].” And Bernal noted that termination of L.S.B.’s parental rights is necessary because she “hasn’t shown any progress throughout the time th[e] case has been open[],” is currently incarcerated, and there is a “lack of [a] relationship between her
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and the children.” L.S.B.’s own behaviors during the time that the children have been in the care of DFPS have only “led” to her “incarceration[s],” which have prohibited her, at times, “from working services [required by her FSPs] and making contact with [the] children.” By continuing to engage in criminal activity, L.S.B. has demonstrated that she is “not thinking about [the] children” and she is “choosing [her] actions over the welfare of [the] children.” See TEX. FAM. CODE ANN. § 263.307(a) (“[T]he prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest.”); In re J.D., 436 S.W.3d at 119–20 (“Stability and permanence are paramount in the upbringing of children.”); In re K.C., 219 S.W.3d at 931 (child’s need for stable, permanent home paramount consideration in best interest determination).
Currently, the children are doing well in their respective placements. D.M.W., who is currently placed by herself in a foster home, “loves going to school, but struggles to focus and complete tasks.” She “loves attention and thrives on getting affection [but] has difficulty receiving any criticisms.” D.M.W. does “well at school,” but “struggle[s] with [her] behaviors in [the] early morning[s] and evening[s].” Her placement is meeting “all” of her needs, “spends [an] extensive [amount of] time working with her to help her improve” in school, and “take[s] her to places to meet and play with [her] peers.” Her placement also “provides appropriate supervision, developmental nurturing, and discipline” and ensures that
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she attends therapy. D.M.W. states that her “foster parents treat her very well” and “she does not wish to leave [her foster] home.” She “reports a sense of comfort, predictability, and safety in [her] placement.”
J.S.B. is currently placed in a foster home with his brother E.L.B., and his home is in “close proximity” to D.M.W. He “enjoys dancing,” “imagination play,” and “playing with his siblings,” although he “frequently fights with [D.M.W.].” J.S.B. “loves getting attention,” is “very outspoken,” is an “engaging child,” and likes school. He “can be aggressive and has loud tantrums when things do not go his way,” but his current placement “has found preventative measures” to address J.S.B.’s behavioral issues. J.S.B. visits with his siblings monthly, and his foster parents “take [him] to places to meet and play with [his] peers.” He “reports a sense of comfort, predictability, and safety in [his] placement.” His current placement acts “appropriate[ly]” in regard to his medication and “provides [him with] appropriate supervision, developmental nurturing[,] and discipline.” And J.S.B. “has shown some improvement” while being on medication.
E.L.B. is currently placed in a foster home with his brother J.S.B. He “enjoys playing with his siblings and other kids,” dancing, and singing. E.L.B. “loves to be silly and is very rambunctious at times.” He “struggles with redirection” and “will have frequent temper tantrums when things do not go his way.” E.L.B. “thrives with 1:1 attention and enjoys affection.” His current placement is meeting “all” of his
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needs and provides him with a safe and stable home. E.L.B. attends a “Pre-K program,” and his foster parents “frequently take [him] on outings.” And his “speech has become more understandable” as a result of the speech therapy that he attends “every other week.” See In re B.J., 2016 WL 1389054, at *13 (children doing well in their placements and noting positive improvements since entering foster home); In re T.A.S., No. 05-15-01101-CV, 2016 WL 279385, at *6 (Tex. App.—Dallas Jan. 22, 2016, no pet.) (mem. op.) (considering children’s improvement in foster care and noting they had “stabilized and [were] functioning well in . . . foster home”).
Although L.S.B. asserts that DFPS’s “[future] plans for the children are speculative at best” and “[t]he children are not [currently] in a permanent placement,” “[a] lack of . . . definitive plans for [the] permanent placement and adoption” of the children at the time of trial is not a dispositive factor. In re C.H., 89 S.W.3d at 28; see also In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). To hold otherwise would mean that “determinations regarding best interest would regularly be subject to reversal on the sole ground that an adoptive family has yet to be located.” In re C.H., 89 S.W.3d at 28.
In regard to acts or omissions that may indicate that the parent-child relationship is not proper, a parent’s use of narcotics, inability to provide a stable home, and failure to comply with her FSP support a finding that termination of her parental rights is in the best interest of the children. In re E.A.F., 424 S.W.3d 742,
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752 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); In re S.B., 207 S.W.3d at 887–88. As discussed above, there is ample evidence that L.S.B. did use, and continued to use during the pendency of the instant case, narcotics, including while she was pregnant, was unable to provide a safe and stable home for the children, in part due to her frequent incarcerations, and failed to comply with the terms of either of her FSPs. See In re B.J., 2016 WL 1389054, at *13 (mother continuously used narcotics, could not provide stable home, and did not comply with her FSP); Smith, 2009 WL 4359267, at *13 (considering mother’s use of narcotics while pregnant, her “pattern of drug use and crime,” and failure to comply with FSP).
Viewing the evidence in the light most favorable to the trial court’s finding, we conclude that the trial court could have formed a firm belief or conviction that termination of L.S.B.’s parental rights was in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(b)(2). And, viewing the evidence in a neutral light, we conclude that a reasonable fact finder could have formed a firm belief or conviction that termination of L.S.B.’s parental rights was in the best interest of the children. See id. We further conclude that the trial court could have reconciled any disputed evidence in favor of finding that termination of L.S.B.’s parental rights was in the children’s best interest or any disputed evidence was not so significant that a fact finder could not have reasonably formed a firm belief or conviction that termination was in the best interest of the children.
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Accordingly, we hold that the evidence is legally and factually sufficient to support the trial court’s finding that termination of L.S.B.’s parental rights was in the best interest of the children. See id.
We overrule L.S.B.’s fourth issue.
Permanent Managing Conservatorship
In her fifth issue, L.S.B. argues that the trial court erred in appointing DFPS as the children’s permanent managing conservator because the evidence is legally and factually insufficient to establish that the appointment of DFPS was in the children’s best interest.44
The Family Code creates a rebuttable presumption that a parent will be named the children’s managing conservator unless the court finds that such appointment would not be in their best interest “because the appointment would significantly impair the child[ren]’s physical health or emotional development.” TEX. FAM. CODE ANN. § 153.131(a) (Vernon 2014). However, the Family Code also provides: “If
44 To the extent that L.S.B. asserts on appeal that the trial court erred in not appointing her as the children’s possessory conservator, we hold that she has waived her complaint by not properly briefing the matter. See TEX. R. APP. P. 38.1(i) (appellant’s brief must “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); Izen v. Comm’n for Lawyer Discipline, 322 S.W.3d 308, 321–22 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (brief containing “conclusory statements, unsupported by legal citations” and no “clear argument” inadequate (internal quotations omitted)); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied) (points not supported by argument and authority waived).
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the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint a suitable, competent adult, [DFPS], or a licensed child-placing agency as managing conservator of the child[ren].” Id. § 161.207(a) (Vernon Supp. 2017); see also In re S.M.G., No. 01-17-00056-CV, 2017 WL 2806332, at *8 (Tex. App.—Houston [1st Dist.] June 29, 2017, pet. denied) (mem. op.) (“When the parents’ parental rights have been terminated, Family Code section 161.207 governs the appointment of a managing conservator.”); In re M.M.M., No. 01-16-00998-CV, 2017 WL 2645435, at *17 (Tex. App.—Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.) (parental presumption applies only when parental rights not terminated). In this case, the trial court appointed DFPS as sole managing conservator of the children after terminating the parental rights of both parents.45
Termination of parental rights and appointment of a non-parent as sole managing conservator are two distinct issues, requiring different elements, different standards of proof, and different standards of review. Compare TEX. FAM. CODE ANN. § 161.001, with id. § 153.131(a); see also In re J.A.J., 243 S.W.3d 611, 615–17 (Tex. 2007). Additionally, “[t]he best interest of the child[ren] shall always be the primary consideration of the court in determining the issues of
45 The parental rights of the children’s respective fathers were previously terminated. See In re D.W., 2014 WL 1494290, at *1 n.2 (in previous appeal in this case, noting fathers’ parental rights to children terminated).
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conservatorship[.]” TEX. FAM. CODE ANN. § 153.002 (Vernon 2014); In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Unlike the standard of proof for termination of parental rights, the findings necessary to appoint a non-parent as sole managing conservator need only be established by a mere preponderance of the evidence. See TEX. FAM. CODE ANN. § 105.005 (Vernon 2014); In re J.A.J., 243 S.W.3d at 616. Likewise, the standard of review for the appointment of a non-parent as sole managing conservator is less stringent than the standard of review for termination of parental rights. In re J.A.J., 243 S.W.3d at 616; In re A.C., 394 S.W.3d at 644. We review a trial court’s appointment of a non-parent as sole managing conservator for an abuse of discretion. In re J.A.J., 243 S.W.3d at 616; Earvin v. Dep’t of Family & Protective Servs., 229 S.W.3d 345, 350 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Therefore, we reverse the trial court’s appointment of a non-parent as sole managing conservator only if we determine that the appointment is arbitrary or unreasonable. In re J.A.J., 243 S.W.3d at 616; Earvin, 229 S.W.3d at 350. We view the evidence in the light most favorable to the trial court’s decision and indulge every legal presumption in favor of its judgment. Earvin, 229 S.W.3d at 350. A trial court abuses its discretion by ruling without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). However, an abuse of discretion does not occur if the trial court bases its decision on conflicting evidence and some evidence of substantive and
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probative character supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
Here, having made termination findings on the predicate grounds and best interest, the trial court was required under Family Code section 161.207 to appoint DFPS, or another permissible adult or agency, as the children’s managing conservator. See In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); see also In re S.M.G., 2017 WL 2806332, at *8 (when parental rights terminated section 161.207 controls appointment of managing conservator). In other words, the appointment of DFPS in this case may be considered a “consequence of the termination” of L.S.B.’s parental rights. See In re L.G.R., 498 S.W.3d at 207 (internal quotations omitted); In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *12 (Tex. App.—Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem. op.).
As discussed above, the evidence is legally and factually sufficient to support the trial court’s termination of L.S.B.’s parental rights to the children. See In re S.R., 452 S.W.3d at 359 n.3 (“A trial court does not abuse its discretion in appointing [DFPS] as conservator of the children where the evidence is sufficient to support termination of parental rights.”). And L.S.B. provides no authority for the proposition that the parental presumption in section 153.131(a) applies to a parent
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whose parental rights have been terminated. See In re N.T., 474 S.W.3d 465, 481 (Tex. App.—Dallas 2015, no pet.); In re A.W.B., No. 14-11-00926-CV, 2012 WL 1048640, at *7 (Tex. App.—Houston [14th Dist.] Mar. 27, 2012, no pet.) (mem. op.); see also In re C.J.L., No. 01-17-00283-CV, 2017 WL 4366010, at *11–12 (Tex. App.—Houston [1st Dist.] Oct. 3, 2017, no pet. h.) (mem. op.). Nor did she prove that she is a “suitable, competent adult” as contemplated by section 161.207(a).46 See TEX. FAM. CODE ANN. § 161.207(a); In re N.T., 474 S.W.3d at 481; In re J.R.W., 2013 WL 507325, at *12. Further, although L.S.B. asserts on appeal that her sister, J.B., “should be appointed sole managing conservator” of the children, she did not raise this argument in the trial court. See TEX. R. APP. P. 33.1; see also Swaab v. Swaab, 282 S.W.3d 519, 536 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d w.o.j.) (father did not preserve complaint trial court erred in not appointing him as sole managing conservator of child where “record reveals no evidence whatsoever that [father] actually made such a request”).
46 In fact, L.S.B. concedes in her brief that she is “unavailable” to be appointed as the children’s managing conservator. And we note that an order terminating the parent-child relationship “divests [L.S.B.] and the child[ren] of all legal rights and duties with respect to each other, except that the child[ren] retain[] the right to inherit from and through [L.S.B.] unless the court otherwise provides.” TEX. FAM. CODE ANN. § 161.206(b); see also In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *12 (Tex. App.—Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem. op.).
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Accordingly, having reviewed the evidence supporting the trial court’s termination of L.S.B.’s parental rights, we hold that the trial court did not err in appointing DFPS as the permanent managing conservator of the children. See In re L.G.R., 498 S.W.3d at 207 (where evidence supporting termination sufficient, trial court did not err in appointing DFPS as sole managing conservator); In re S.R., 452 S.W.3d at 359 n.3 (“A trial court does not abuse its discretion in appointing [DFPS] as conservator of the children where the evidence is sufficient to support termination of parental rights.”).
We overrule L.S.B.’s fifth issue.
Conclusion
We affirm the orders of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Brown.

Outcome: Affirmed

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Defendant's Experts:

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