Marjorie Huepers v. Amy Michelle Thompson

Opinion issued March 27, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00817-CV

IN THE INTEREST OF B.L.H., a minor child

On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 33547

MEMORANDUM OPINION Appellant, Marjorie Huepers, appeals from the trial court’s order terminating

her parental rights to her son, B.L.H. Appellee, Amy Middleton, is the managing

conservator of the child under a mediated agreement with Marjorie and has cared for

B.L.H. for most of his life. In four issues, Marjorie contends that the trial court erred

(1) by denying her request to call Amy’s adoptive mother, Sharon Middleton, who is

also Amy’s attorney, as a witness; (2) by denying her motion to disqualify Sharon

from acting as Amy’s attorney at trial; (3) by terminating Marjorie’s rights based on

evidence that is factually insufficient to support the court’s finding that there was a

material and substantial change in her circumstances as required by the Texas Family

Code; and (4) by terminating Marjorie’s rights based on evidence that is factually

insufficient to support the court’s finding that termination was in the best interest of

the child. We conclude that the trial court did not abuse its discretion by denying

Marjorie’s motion to disqualify Sharon and that the exclusion of Sharon’s testimony,

if error, was harmless error. We further conclude that the evidence is factually

sufficient to support the trial court’s judgment. We therefore affirm. Background

B.L.H. was born in October 2002 with cocaine and Benzodiazaphine (Xanax)

in his system. Marjorie admitted to using drugs during her pregnancy, and B.L.H.

was removed from the care of Marjorie and placed with Marjorie’s mother, Marion

Ward. Ten days later, B.L.H. was placed with Amy because of an incidence of

domestic violence at Marion’s home. In April 2003, Marjorie began substance abuse

treatment at the Franklin House in Beaumont, Texas. B.L.H. was placed with her

there in an attempted reunification. Because of concerns that Marjorie physically and

verbally abused B.L.H., Marjorie was discharged from the Franklin House after only

three days. Two days later, the Texas Department of Protective and Regulatory

Services (“TDPRS”) filed suit seeking to terminate Marjorie’s parental rights, and

B.L.H. was placed in foster care.

Marjorie subsequently went to jail on burglary and drug charges. B.L.H. was

moved to the care of Amy in October 2003, and he has remained there since. In

March 2004, while Marjorie was still in jail, the parties mediated the termination case

against Marjorie and agreed that Amy would be named Permanent Managing

Conservator of B.L.H. and Marjorie would be the Permanent Possessory Conservator.

Amy stated that she would not seek the termination of Marjorie’s parental rights if

Marjorie did not return to prison once she was released on probation.

Marjorie was released from jail on probation in April 2004. Marjorie stated

that she attempted to contact Amy to notify her of her release from jail, but the letter

was returned. In May 2004, Marjorie violated the terms of her probation and returned

to jail to serve the remainder of her sentence for burglary. Amy brought this suit

seeking to terminate Marjorie’s parental rights in March 2005 while Marjorie was still

in jail. Marjorie was released from jail in April 2005.

Denial of Marjorie’s Request to Call Sharon as Witness

In her first issue, Marjorie contends that the trial court erred by denying her

request to call Amy’s adoptive mother, Sharon, as a witness at trial.

“The admission and exclusion of evidence is committed to the trial court’s

sound discretion.” Benavides v. Cushman, Inc. , 189 S.W.3d 875 , 878–79 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (citing City of Brownsville v. Alvarado , 897

S.W.2d 750, 753 (Tex. 1995)). A trial court abuses its discretion when it rules

without regard for any guiding rules or principles. See Alvarado , 897 S.W.2d at 754 .

If a party challenges the exclusion of a witness’s testimony, the party calling the

witness must make a bill of exception of the excluded testimony. Tex. R. App. P.

33.2; Connell v. Connell , 889 S.W.2d 534, 545 (Tex. App.—San Antonio 1994, writ

denied). “To obtain reversal of a judgment based on error in the admission or

exclusion of evidence, an appellant must show that the trial court’s ruling was

erroneous and that the error was calculated to cause, and probably did cause,

‘rendition of an improper judgment.’” Benavides , 189 S.W.3d at 879 (quoting Tex.

R. App. P. 44.1(a)(1) and Owens-Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35,

43 (Tex. 1998) ). In conducting this harm analysis, we review the entire record. Tex.

Dep’t of Transp. v. Able , 35 S.W.3d 608, 617 (Tex. 2000); Alvarado , 897 S.W.2d at

754 ; Benavides , 189 S.W.3d at 879 . Evidentiary rulings do not usually cause

reversible error unless an appellant can demonstrate that the judgment turns on the

particular evidence that was admitted or excluded. Able , 35 S.W.3d at 617 ; Alvarado ,

897 S.W.2d at 753–54; Benavides , 189 S.W.3d at 879 .

Assuming without deciding that it was error for the trial court to exclude the

testimony of Sharon, Marjorie presents no evidence to suggest that the error was

harmful. In her brief, Marjorie claims that she would have asked Sharon about day-to-day activities in the home with B.L.H. and a domestic violence incident that

occurred between Sharon and her mother-in-law. During her bill of exception,

however, Marjorie asked no such questions. Instead, she asked other questions, most

of which could have easily been answered by other witnesses. For example, Marjorie

asked when Sharon had adopted Amy, how long she had known her prior to the

adoption, and other questions about the adoption. However, Gary Middleton,

Sharon’s husband could have, and did, answer questions about the adoption. Amy

could also have testified to these issues as well. In her bill of exception, Marjorie

questioned Sharon about her membership on a website message board and a message

posted with Sharon’s user name. However, in her brief, Marjorie made no attempt to

address the relevance of such questions or how she was harmed by the exclusion of

this evidence. No other questions asked of Sharon during Marjorie’s bill of exception

present issues that could not have been answered by another witness or were essential

to Marjorie’s case. We conclude the exclusion of the evidence did not, in reasonable

probability, cause the rendition of an improper judgment. See Benavides , 189 S.W.3d

at 879 . We hold that the trial court’s error of excluding the testimony of Sharon, if

any, was harmless.

We overrule Marjorie’s first issue.

Motion to Disqualify Attorney

In her second issue, Marjorie contends that the trial court erred by denying her

motion to disqualify Amy’s attorney, Sharon, from the case. Amy responds that

Marjorie did not meet her burden of proving that disqualification was required. The

standard of review for the denial of a motion to disqualify an attorney is abuse of

discretion. In re Nitla S.A. de C.V. , 92 S.W.3d 419, 422 (Tex. 2002). A trial court

will be found to have abused its discretion only when its actions were arbitrary or

unreasonable. Id. (citing Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238,

241-42 (Tex. 1985)).

Disciplinary Rule 3.08 states in part:

(a) A lawyer shall not accept or continue employment as an advocate

before a tribunal in a contemplated or pending adjudicatory proceeding

if the lawyer knows or believes that the lawyer is or may be a witness

necessary to establish an essential fact on behalf of the lawyer’s client,

unless:

(1) the testimony relates to an uncontested issue;

(2) the testimony will relate solely to a matter of formality and

there is no reason to believe that substantial evidence will be

offered in opposition to the testimony;

(3) the testimony relates to the nature and value of legal services

rendered in the case;

(4) the lawyer is a party to the action and is appearing pro se; or

(5) the lawyer has promptly notified opposing counsel that the

lawyer expects to testify in the matter and disqualification of the

lawyer would work substantial hardship on the client.

(b) A lawyer shall not continue as an advocate in a pending adjudicatory

proceeding if the lawyer believes that the lawyer will be compelled to

furnish testimony that will be substantially adverse to the lawyer’s

client, unless the client consents after full disclosure.

Tex. Disciplinary R. Prof’l Conduct 3.08(a), reprinted in Tex. Gov’t Code

Ann ., tit. 2, subtit. G app. A (Vernon 1998). Although Rule 3.08 was promulgated

as a disciplinary standard, rather than one of procedural disqualification, courts have

recognized it as providing relevant guidelines for disqualification determinations. In

re Sanders , 153 S.W.3d 54, 56 (Tex. 2004) (citing Anderson Producing Inc. V. Koch

Oil Co. , 929 S.W.2d 416, 421 (Tex. 1996)).

Attorney disqualification is a severe remedy. Nitla , 92 S.W.3d at 422 (citing

Spears v. Fourth Court of Appeals , 797 S.W.2d 654, 656 (Tex. 1990)). A motion for

disqualification should be considered with caution, because of the great potential that

it could result in immediate and palpable harm, disrupt the proceedings of the trial

court and deprive a party of the right to employ the counsel of choice. Id. (citing

Hoggard v. Snodgrass , 770 S.W.2d 577, 581 (Tex. App.—Dallas 1989, no writ)).

It is only appropriate to disqualify an attorney when the attorney’s testimony

is “necessary to establish an essential fact.” Sanders , 153 S.W.3d at 57 (citing Tex.

Disciplinary R. Prof’l Conduct 3.08(a)). The mere fact that a lawyer serves or

may serve as both an advocate and a witness, alone and without more, does not

automatically compel disqualification. Id. (citing Ayres v. Canales , 790 S.W.2d 554 ,

557–58 (Tex. 1990)). Even if a lawyer violates a disciplinary rule, the party moving

for disqualification still bears the burden of proving actual prejudice will be incurred

as a result of the dual roles of the non-movant’s lawyer as both attorney and witness.

Id. (citing Ayres , 790 S.W.2d at 558 ). The “mere allegations of unethical conduct or

evidence showing a remote possibility of a violation of the disciplinary rules will not

suffice” to meet this burden. Id. (citing Spears , 797 S.W.2d at 656 ). Finally, the rule

must be applied strictly in order to discourage parties from using a motion to

disqualify as a dilatory trial tactic or for other tactical purposes. Nitla , 92 S.W.3d at

422 (citing Spears , 797 S.W.2d at 656 ).

Marjorie contends that, due to Sharon’s complex relationship to the facts of the

case—lawyer, mother, grandmother, employer, and spouse to various parties and

witnesses—it would be absurd to think her testimony was anything but essential.

Although it is undisputed that Sharon could serve as a fact witness due to her

knowledge of relevant facts, Marjorie has not shown that Sharon’s testimony is

“necessary to establish an essential fact.” See Sanders , 153 S.W.3d at 57 . The record

here shows various other sources to prove the same information that Sharon could

provide. See id. at 57–58. Amy and Gary Middleton testified as to the condition of

the home they shared with B.L.H. and Sharon, and the nature of the relationship

between the members of the Middleton family and B.L.H. In Sanders , the wife in a

divorce and child custody case sought to disqualify the husband’s attorney, alleging

that he had become a material fact witness and should therefore be disqualified

because the husband had performed some carpentry work on the attorney’s office as

partial payment for his legal counsel. Id. at 56 . The court rejected the wife’s

argument because this information could be obtained from sources other than the

husband’s attorney. Id. at 57–58. For example, the court noted that the husband

himself could testify as to these facts, or the attorney’s billing records could be

brought into evidence. Id.

Marjorie refers to the commentary for Rule 3.08, which states, “A witness is

required to testify on the basis of personal knowledge, while an advocate is expected

to explain and comment on evidence given by others. It may not be clear whether a

statement by an advocate-witness should be taken as proof or as an analysis of the

proof.” Tex. Disciplinary R. Prof’l Conduct 3.08 cmt. 4. Any attorney who has

done research prior to a trial will know what the various witnesses will likely say at

trial. We cannot conclude that the fact finder—here, the trial court judge—could not

have disregarded Sharon’s statements that may have suggested personal knowledge

of facts rather than a comment on evidence in the record. Furthermore, Sharon

asserted that she only intended to testify concerning attorney’s fees, and much of the

“contradictory” testimony cited by Marjorie was on the matter of attorney’s fees.

Testimony about attorney’s fees, however, is clearly acceptable under Rule 3.08 of

the Texas Disciplinary Rules of Professional Conduct. See Tex. Disciplinary R.

Prof’l Conduct 3.08(a)(3). Marjorie has thus failed to show that Sharon’s

testimony was necessary to establish an essential fact, as the rule requires.

Marjorie also points to Cossette v. County Style Donuts, Inc. , 647 F.2d 526 ,

530 (5th Cir. 1981). In Cossette , the court asserted, “The rule of disqualification

involves a balancing of the likelihood of public suspicion against the interest in

retaining counsel of one’s choice.” Id. (citing Church of Scientology v. McLean , 615

F.2d 691, 692 (5th Cir. 1980)). Marjorie maintains that the appearance of possible

impropriety created as a result of attorney Sharon’s personal involvement in the case

was so great that it should outweigh Amy’s interest in choosing her counsel.

However, Cossette refers to the American Bar Association’s Canons of Professional

Ethics, not the Texas disciplinary rules. Furthermore, Cosette discusses the

disqualification of an attorney in a matter involving a former client, not a lawyer

serving as a witness, as in the present case.

The last minute filing of the motion to disqualify attorney Sharon suggests it

was a tactical maneuver by Marjorie. See Sanders , 153 S.W.3d at 57–58. Marjorie

waited until the night before trial to enter her motion to disqualify attorney Sharon,

even though Marjorie’s counsel pondered whether or not to raise the motion for

several weeks. Courts have a strong desire to discourage parties from using motions

to disqualify as tactical maneuvers. See id.

The evidence fails to show that attorney Sharon’s testimony was both necessary

and essential to the case. See Tex. Disciplinary R. Prof’l Conduct 3.08(a). We

hold that the trial court did not abuse its discretion by denying the motion to

disqualify Sharon from acting at Amy’s attorney.

We overrule Marjorie’s second issue.

Factual Sufficiency

In her third and fourth issues, Marjorie asserts that the evidence is factually

insufficient to support the trial court’s finding that there was a material and

substantial change in circumstances and that termination was in the best interest of

the child, as required by the Texas Family Code. Under section 161.004, a court may

not terminate parental rights after previously denying a prior petition to terminate

unless:

(1) the petition under this section is filed after the date the order denying

termination was rendered;

(2) the circumstances of the child, parent, sole managing conservator,

possessory conservator, or other party affected by the order denying

termination have materially and substantially changed since the date that

the order was rendered;

(3) the parent committed an act listed under Section 161.001 before the

date the order denying termination was rendered; and

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

Tex. Fam. Code. Ann . § 161.004(a) (Vernon 2006).

Marjorie challenges the trial court’s finding only on grounds two and four,

concerning the change in circumstances and the best interest of the child.

A. Standard of Review

A parent’s rights to a child may not be terminated unless the grounds for

termination are proven by clear and convincing evidence. Vasquez v. Tex. Dep’t of

Prot. & Regulatory Servs. , 190 S.W.3d 189, 193 (Tex. App.—Houston [1st Dist.]

2005, pet. denied) (citing Santosky v. Kramer , 455 U.S. 745 , 747–48, 102 S. Ct. 1388 ,

1391–92 and In re B.L.D. , 113 S.W.3d 340 , 353–54 (Tex. 2003)). “Clear and

convincing evidence” is defined as that 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 claims

sought to be proved. Tex. Fam. Code Ann . § 101.007 (Vernon 2006); In re J.F.C. ,

96 S.W.3d 256, 266 (Tex. 2002). When an appellant attacks the factual sufficiency

of an adverse finding on an issue on which the opposing party had the burden of

proof, that appellant must demonstrate that there is insufficient evidence to support

the finding. Croucher v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983); Vasquez , 190

S.W.3d at 193 . In analyzing factual sufficiency, we consider whether the disputed

evidence is such that a reasonable fact finder could not have resolved that disputed

evidence in favor of its finding. In re J.F.C. , 96 S.W.3d. at 264; Vasquez , 190

S.W.3d at 193 . A factual sufficiency challenge will be overruled if, considering all

the evidence in the record that both supports and contradicts the trial court’s finding,

the fact finder reasonably could form a firm conviction or belief that the termination

of parental rights is in the best interest of the child. In re C.H. , 89 S.W.3d 17 , 28–29

(Tex. 2002); Vasquez , 190 S.W.3d at 193–94.

B. Material and Substantial Change in Circumstances

In her third issue Marjorie challenges the factual sufficiency of the court’s

finding that the circumstances had materially and substantially changed as required

by section 161.004 of the Family Code. Specifically, Marjorie contends that she was

not sent to prison on new charges after the petition was filed, that she has stopped

using drugs, that she attempted to set up visits with her son, and that, once she

understood her child support obligations, she caught up with all past due child

support. Amy responds that Marjorie returned to prison after being released because

she violated terms of her probation, that Marjorie continues to abuse drugs, and that

Marjorie had not made efforts to contact the child.

No definite guidelines exist as to what constitutes a material and substantial

change in circumstances. See Wright v. Wright , 610 S.W.2d 553, 555 (Tex. Civ.

App.—Houston [1st Dist.] 1980, no pet.). However, facts in the record support the

trial court’s determination.

At the time the initial agreement with Amy was mediated in March 2004,

Marjorie was in jail for a conviction for burglary of a habitation. The order denying

termination was signed in early April. Also in April 2004, Marjorie was released

from jail and placed on probation for the crime. Less than a month later, Marjorie’s

probation was revoked because she violated the terms of her probation, and she

returned to jail. In March 2005, while Marjorie was still in jail because of the

probation violation, Amy filed the present suit to terminate Marjorie’s parental rights.

Although Marjorie states that her return to jail was not due to a new offense, the trial

court still could have reached the conclusion that her return to jail, whether on a

probation violation or a new offense, was a material and substantial change in

circumstances. See Thompson v. Tex. Dep’t of Family and Prot. Servs. , 176 S.W.3d

121 , 126–27 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

Furthermore, Marjorie stated that she was no longer abusing illegal drugs.

However, testimony from her aunt suggests that she used illegal drugs after her

release from prison in April 2004. Margaret Foster testified that, at her father’s

funeral, Marjorie arrived emitting an odor of marijuana. Margaret testified Marjorie

admitted to being “all messed up.” Margaret further stated that Marjorie told her she

was under the influence of drugs during a visit to the home of Marjorie’s mother. The

trial court could have chosen to believe the testimony of Margaret over that of

Marjorie. And, based on such evidence, the trial court could have reached the

conclusion that Marjorie abused illegal drugs again after her release from prison and

after the prior petition to terminate was denied, which would also constitute a material

and substantial change in circumstances. See id.

We overrule Marjorie’s third issue.

C. Best Interest of the Child

In her fourth issue, Marjorie asserts that the evidence is factually insufficient

to support the trial court’s finding that termination of her parental rights is in the best

interest of the child.

In determining whether termination is in the child’s best interest, we apply the

Holley factors, as follows:

1. The child’s desires;

2. The child’s physical and emotional needs, now and in the future;

3. The emotional and physical danger to the child, now and in the future;

4. The parental ability of the individuals seeking custody;

5. The programs available to assist these individuals in promoting the

child’s best interest;

6. The plans for the child by the individual or agency seeking custody;

7. The stability of the home or proposed placement;

8. The parent’s act or omissions that may indicate the existing parent-child

relationship is not the proper one; and

9. Any excuse for the parent’s acts or omissions.

Vasquez , 190 S.W.3d at 196 (citing Holley v. Adams , 544 S.W.2d 367 , 371–72 (Tex.

1976)). The party in favor of termination is not required to prove all of the Holley

factors, particularly where there is undisputed evidence that the parent-child

relationship endangers the child’s safety. See In re C.H. , 89 S.W.3d at 27 .

Additionally, absence of evidence about some of the Holley best interest factors does

not preclude a factfinder from reasonably forming a strong conviction that

termination is in the child’s best interest. In re L.M. , 104 S.W.3d 642, 647 (Tex.

App.—Houston [1st Dist] 2003, no pet.).

1. Desires of Child

Marjorie contends that there is no evidence that B.L.H. does not want to live

with her. Amy responds that she and B.L.H. are very close and that B.L.H. is also

attached to Amy’s adopted son, Devan, and Amy’s adoptive parents, Sharon and Gary

Middleton. At under five years of age, B.L.H. was too young to testify as to his

desires. This factor weighs neither against nor in favor of termination of Marjorie’s

parental rights.

2. Child’s Physical and Emotional Needs, Now and in the Future

Marjorie contends that there is no evidence that she abused or neglected

B.L.H., that he needs to live with his full-blooded brother in order to develop their

family bond, and that she understands B.L.H.’s emotional and physical needs, now

and in the future. Amy responds that B.L.H. was born with cocaine and Xanax in his

system and that Marjorie has never provided him with food, clothing, or shelter.

Concerning the child’s present physical and emotional needs, Marjorie testified that

she understood B.L.H.’s physical needs now to be “food, clothing, time to play, time

to sleep, baths, everyday living.” She also testified that she understood his current

emotional needs to be “love, the feeling of belonging, the feeling that someone is

there, I mean that he’s going to be taken care of.” Although Marjorie demonstrated

an awareness of what B.L.H.’s present physical and emotional needs may be, other

than for three days, she has never physically or emotionally been the caretaker of

B.L.H. Until very shortly before trial, Marjorie paid no child support for the care of

B.L.H., with the possible exception of about $20 early in B.L.H.’s life. The record

is undisputed that Amy is the only mother that B.L.H. has ever known. B.L.H. has

lived with Amy since he was 13 days old with only a six-month separation while he

was in foster care. B.L.H. refers to Amy as “mommy.” Marjorie’s testimony

acknowledges that she has no bond with B.L.H. Marjorie’s contact through

supervised visitation with B.L.H. has been limited and sporadic, and the last time she

visited him was on July 21, 2003, when B.L.H. was still an infant. Although Marjorie

appears to understand what B.L.H.’s physical and emotional needs may be, no

evidence shows that she has provided for any of those needs for most of his life.

Concerning the child’s future physical and emotional needs, Marjorie testified

that in the future, B.L.H. would need “support” and “help dealing with the fact that

he’s going to have . . . abandonment issues.” She testified that she would support

herself, B.L.H., and her other infant son on $560 a month that she would earn through

work and friends “that are willing to help me.” Marjorie testified that she was going

to be “put on a schedule” and go “through training” to be a hostess at Waffle House.

However, Marjorie did not provide any documentation to support her claim that she

had been hired to work there, and the trial court could have disregarded her testimony

as not credible. Cf. Vasquez , 190 S.W.3d at 197 (noting that Vasquez was able to

provide a paycheck stub from her employment). Marjorie did testify that she had

worked a temporary job as a telemarketer for the Public Safety Services. However,

she only worked 15 days and made $166. Furthermore, Marjorie testified that she had

not had a steady job since she was released from jail and could not estimate how

much she earned on a month to month basis from her work as a babysitter. The

record shows, therefore, that Marjorie’s employment was sporadic, making her

financially reliant on others.

When asked how much money she would need if B.L.H. needed to go to the

hospital or get his prescriptions filled, Marjorie stated that she “[had] no idea.” The

record reveals that B.L.H. must wear glasses and have his vision monitored. B.L.H.

sometimes has “rages” during which we will “throw himself on the ground, bang his

head on the ground, bang his head on walls . . . [and] bite himself.” Marjorie testified

that she would be able to help B.L.H. with his rages through the help of a therapist

who would talk with Marjorie and B.L.H., and she would pay for the therapist

through Medicaid. Additionally, Marjorie testified that she had “looked into the

CHIPs program” for B.L.H.’s medical needs. However, Marjorie testified that she did

not know what steps to take to get B.L.H. enrolled in the program and that she had

not read the qualifications or filed an application for the program. Given the lack of

consistent employment and the heavy reliance on “friends,” the evidence shows that

Marjorie will have difficulty providing for B.L.H.’s physical and emotional needs in

the future. This factor weighs in favor of termination of Marjorie’s parental rights.

3. Emotional and Physical Danger to Child, Now and in the

Future

Marjorie contends that she has been drug-free for over three years, has

completed all her drug rehabilitation programs, and that there is no evidence of any

possible physical or emotional abuse of the child by her now or in the future. By

contrast, Amy responds that Marjorie poses a threat to the child because of her past

use of illegal narcotics and potential for relapse. The record shows that Marjorie has

placed B.L.H. in physical and emotional danger by her use of illegal narcotics for

most of B.L.H.’s life, including while she was pregnant with B.L.H., which caused

him to be born with cocaine and Xanax in his blood. See Vasquez , 190 S.W.3d at 197

(“Evidence of pre-natal and post-natal drug abuse by a parent may be ground for

termination.”) (citing In re R.D. , 955 S.W.2d 364, 368 (Tex. App.—San Antonio

1997, pet. denied). Furthermore, Marjorie testified that she used marijuana every day

for nine years before she quit using drugs.

Marjorie contended at trial that due to her treatment for substance abuse, she

was now drug-free. Marjorie testified that she had been clean since April 4, 2005.

However, the record contains evidence to contradict Marjorie’s claim that she was no

longer using narcotics. Marjorie’s aunt testified that she observed Marjorie under the

influence of marijuana during the time when Marjorie claimed that she was clean.

The trial court could have disbelieved Marjorie’s claim that she was no longer using

illegal drugs because, despite her recent treatment, a witness testified that Marjorie

was still using illegal drugs. Additionally, the record shows that Marjorie has been

incarcerated for most of B.L.H.’s life and thus left physical care of him up to others.

The record supports the determination that Marjorie now poses, and will pose in the

future, an emotional and physical danger to B.L.H. This factor weighs in favor of

termination of Marjorie’s parental rights.

4. Parental Ability of Individuals Seeking Custody

Marjorie contends that she can provide B.L.H. with a safe and stable home, that

she has no intention to cut off ties with Amy and Amy’s family, and that she now has

parenting abilities—“nurturing, love, understanding, caring, the willingness to be a

parent”—that she did not have when B.L.H. was born. Amy responds that Marjorie

does not have a home, does not have a job, has no bond with B.L.H., and has not

attempted to create a bond with B.L.H. Marjorie has gone at least six months without

providing for B.L.H. financially and without visitation. See In re B.M.R. , 84 S.W.3d

814, 820 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (taking into account father’s

long periods without visiting and without providing for children financially).

Although Marjorie paid all of her child support after being in arrears, she only paid

it after being held in contempt of court, and she has not paid again since May 2006.

During a brief time when B.L.H. was placed with Marjorie at her drug rehabilitation

facility, he was removed from her care by TDPRS because of allegations of abuse by

Marjorie. Although Marjorie purports to love B.L.H., her conduct throughout his life,

with few exceptions, demonstrates that she does not have the parental ability to care

for B.L.H. This factor weighs in favor of termination of Marjorie’s parental rights.

5. Programs Available to Assist Individuals in Promoting

Child’s Best Interest

Marjorie contends that she has used various programs in the past to assist her

in caring for her children, which include Medicaid and The Ripley House;

furthermore, she contends that she could use CHIP for B.L.H.’s medical needs. Amy

agrees that Marjorie receives government benefits for her other child. Marjorie

testified that she took a class on parenting and that she learned certain safety

measures at those classes. Marjorie testified that she planned to have B.L.H.’s

healthcare taken care of by CHIP, but she also testified that she had no idea how

much it would cost if B.L.H. had to go to the hospital or have prescriptions filled.

Additionally, although there are several programs available to aid Marjorie in

caring for B.L.H., she has not filed an application for B.L.H.’s healthcare to be

provided by CHIP. Thus, this factor weighs neither for nor against termination.

6. Plans for Child by Individuals Seeking Custody

Marjorie contends that she has a safe and stable home that she rents from

B.L.H.’s paternal grandmother, who only lives three houses away; furthermore,

Marjorie also asserts that she has made arrangements with a therapist at the Ripley

House to help her and B.L.H. through the transition. Amy responds that Marjorie

does not have a safe and stable home.

Marjorie testified that she planned to depend on the financial help of family

and friends to support her and her two children. Marjorie planned to leave B.L.H.

with his paternal grandmother when Marjorie went to work. Marjorie also testified

that she was living at her mother-in-law’s house but was not paying any rent.

Marjorie also testified that she did not have a car and that she would have to “depend

on everybody to drive [her] to work.” Although Marjorie has made efforts to make

some plans for B.L.H., those plans rely heavily upon others because Marjorie does

not pay rent, has no car, and relies on the financial assistance of her family, friends,

and government. Marjorie’s plans fail to acknowledge her continued drug use and

transient living arrangements. In contrast, Amy has demonstrated an ability to care

for B.L.H. throughout his life. This factor weighs in favor of termination of

Marjorie’s parental rights.

7. Stability of Home or Proposed Placement

Neither Marjorie nor Amy briefed this issue. However, evidence showed that

Marjorie was residing in a house that was boarded up in the front. Additionally,

Marjorie did not pay rent to stay at the house and lived in three different locations

during the trial court proceedings. Evidence of the transient living by Marjorie

suggests that placement of B.L.H. with her would provide an unstable home. This

factor weighs in favor of termination of Marjorie’s parental rights.

8. Acts or Omissions of Parent that May Indicate that Existing

Parent-Child Relationship is not a Proper One.

Marjorie contends that, although she does have a criminal history and a past

drug problem, she has now overcome those problems and is able to provide a safe and

stable home for B.L.H. Amy contends that Marjorie’s past drug use and criminal

history still pose present and future problems for her. The record demonstrates that

the acts by Marjorie show an inadequate relationship with B.L.H. due to Marjorie’s

commission of crimes and violations that resulted in her repeated incarcerations,

continued drug use even after receiving treatment, failure to pay child support

consistently, and failure to interact consistently with B.L.H. to form a relationship

with him. This factor weighs in favor of termination of Marjorie’s parental rights. 9.Any Excuses for Acts of Omissions of Parent

Neither Marjorie nor Amy discusses any excuses for those acts or omissions.

Thus, this factor weighs neither for nor against termination. We therefore conclude

that the application of the Holley factors supports the trial court’s finding that

termination of Marjorie’s parental rights is in the best interest of B.L.H.

We overrule Marjorie’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Taft, Keyes, and Alcala.