in the Interest of M. C. M. AKA, Baby Girl M.

Opinion issued December 17, 2015

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-00613-CV

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IN THE INTEREST OF M. C. M. A/K/A BABY GIRL M.

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Case No. 2014-03160J

MEMORANDUM OPINION

Soon after M.M. gave birth to a daughter, M.C.M. (“Molly”),1 the hospital

staff noted some peculiar behavior by Mother and requested a psychiatric

assessment. Soon thereafter, the hospital contacted the Department of Family and

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The mother, M.M., will be referred to as “Mother,” and the child, M.C.M., will be

referred to by the pseudonym, “Molly,” both to protect their privacy and for ease

of reading.

Protective Services. The Department obtained emergency orders and took custody

of Molly at the hospital. Following various hearings and a full trial, Mother’s

parental rights were terminated, making Molly eligible to be adopted by the foster

parents who had been raising her.

In two issues, Mother contends that the evidence was legally and factually

insufficient to support termination of her parental rights under Section

161.001(1)(E) of the Family Code2 or to support the trial court’s ruling that

termination was in Molly’s best interest.

We affirm.

Background

Mother has five other living children. When the fourth of those children was

born in 2002, both Mother and the child tested positive for cocaine. Mother

admitted drug and alcohol use during that pregnancy, and the Department initiated

custody proceedings. When the fifth child was born in 2005, the Department again

became involved. During that inquiry, Mother relinquished her parental rights to

all five of her children. They live with other family members.

When Mother was admitted to the hospital in 2014 to deliver Molly, the

hospital staff noted in her medical records various “pregnancy problems,”

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Mother’s parental rights were terminated under four separate subsections to

Section 161.001(1): (E), (I), (N), and (O). TEX. FAM. CODE ANN. § 161.001(1)

(West Supp. 2015). She only challenges the (E) basis for termination.

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including “severe pre-eclampsia,” “intractable” headaches, “tobacco use during

pregnancy,” and a history of “depression and social stressors,” as well as “self

discontinued” medication for depression. The records also contain a reference to

“Bipolar disorder.” Additionally, the medical records indicate Mother used

marijuana during her pregnancy with Molly. She admitted using marijuana during

the first trimester, and she tested positive for marijuana during a second-trimester

drug test. Molly was born full term but had a low birth weight of only four pounds.

Mother’s medical records contain numerous entries concerning aggressive

and delusional behavior. The hospital staff described Mother as “shouting

aggressively” and “moving towards [a physician] aggressively.” She was also

described as “irate and aggressive.” In a separate entry, she was described as

demonstrating “acute agitation.”

Mother had no visitors at the hospital. When asked about her home situation,

Mother purportedly gave inconsistent statements to the hospital staff concerning

who lived with her and whether Molly’s father would be involved and able to help.

She also gave inconsistent responses regarding her mental health history and level

of treatment compliance.

To obtain more information, the hospital staff contacted Mother’s midwife,

who told them that Mother had made “multiple disorganized statements” to her and

had shown signs of “delusions” during her pregnancy with Molly. The midwife

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also alerted the hospital staff that she understood Mother did not have custody of

her other five children because the Department of Child Protective Services

intervened, not because, as Mother had indicated to the hospital staff, she had

elected to surrender custody.

In response, the hospital’s psychiatric physicians performed a “complete

safety assessment,” and Dr. Jin Y. Han of the Baylor College of Medicine

Menninger Department of Psychiatry and Behavioral Sciences prepared a written

report the day after Molly’s delivery. The report noted a history of depression but

stated that, according to Mother, her last depressive episode was in 2003—more

than ten years earlier. The report also noted the information obtained from

Mother’s midwife, including prior delusional thoughts and involvement with the

Department. The examination findings included “slightly pressured” speech,

“slightly expansive” affect, a “perseverative” fixation on Molly’s care schedule,

“poor” insight, judgement, and impulse control, and current “hypomanic” state.

The psychiatric evaluation concluded with a psychiatric assessment that Mother “is

at risk for harming [the] child at [the] present time.”

After the hospital received the results of the psychiatric assessment, it

contacted the Department to begin an inquiry, and the hospital staff supervised all

of Mother’s interactions with Molly at the hospital.

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The Department’s caseworker attempted to interview Mother at the hospital,

but she was “uncooperative.” According to the caseworker, Mother appeared

delusional and made statements that the two of them had been “in the war

together.” The war reference was later explained to be a reference to serving in

Vietnam together.

The Department obtained emergency temporary managing conservatorship

of Molly, took custody of her from the hospital, placed her with foster parents, and

initiated a parenting plan. Mother was required to refrain from any criminal

activity; comply with all court orders; make reasonable efforts to attend meetings

and court hearings; secure and maintain legal employment and provide

documentation of income; secure and maintain a stable residence; submit to

random drug tests with the understanding that failure to do so would be considered

by the Department to indicate current use of drugs or alcohol and that a missed

drug test would be considered an automatic positive result; enroll in, actively

participate in, and successfully complete a six-to-eight week parenting education

class; and complete a psycho-social evaluation, psychiatric evaluation, individual

therapy, and substance abuse assessment.

A bench trial was held in May 2015. The Department caseworker,

N. Williams, testified that Mother had been “diagnosed with multiple mental health

issues [including] mood disorder [and] bipolar disorder” before Molly was born.

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The referral was made to the Department because Mother was displaying signs of

mental illness after delivery. Williams testified that Mother and Molly tested

negative for drugs at the hospital but Mother subsequently tested positive for

cocaine and, at a later date, for marijuana.

When asked whether Mother complied with the requirements stated in the

parenting plan, Williams testified that Mother failed to comply with “[b]asically

any of them.” She failed to undergo any of the evaluations or complete the

parenting classes. She failed two drug tests. And she refused subsequent hair-

follicle drug tests. Further, once the Department allowed visitations with Molly,

Mother visited her only once; she missed all three of the other scheduled visits.

Williams also testified about Mother’s prior history with the Department.

Mother had tested positive for cocaine in 2002 at the birth of one of the older

children. She subsequently relinquished custody of all five of her children.

Mother’s drug use continued; she admitted to using marijuana in the early stages of

her pregnancy with Molly. Mother denied using drugs after realizing she was

pregnant, but she failed a drug test three months later, midway through her

pregnancy.

After proffering the above evidence, as well as evidence that Mother was

convicted of trespass and sentenced to a period of confinement during the

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pendency of the termination proceeding, the Department requested that the trial

court terminate Mother’s parental rights.

Mother testified at trial. Contrary to the evidence, she denied using any

drugs while pregnant with Molly and denied that she had tested positive for drug

use while the parental termination suit was pending. Mother stated that she refused

to comply with the court-ordered hair-follicle drug tests because, at first, she

believed they were going to cut “at least a hundred strands” of her hair to perform

the test, and she was unwilling to allow her hair to be cut so drastically. Upon

further questioning by the judge, Mother admitted that she would have refused the

hair-follicle drug test even if they removed only a single strand. She also admitting

to realizing that a refused drug test would be treated as a positive test result,

saying, “I know. You told me.” While she agreed that she did not complete the

eight sessions of parenting classes the Department required, she testified that she

attended parenting seminars at other locations in an effort to fully comply with the

eight-class requirement. Finally, Mother denied ever being diagnosed with a

mental health issue.

The Department sought termination under Family Code Subsections

161.001(1)(E), conduct endangerment; (I), failure to submit to a court order; (N),

constructive abandonment; and (O), failure to comply with a court order. See In re

M.S., 115 S.W.3d 534, 534 (Tex. 2003) (discussing each basis for termination). It

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argued that Mother’s drug use and failure to address her mental-health issues

satisfied Subsection (E), her refusal to submit to hair-follicle drug testing satisfied

Subsection (I); her failure to attend visitations with Molly satisfied Subsection (N),

and her failure to meet any of the requirements of her parenting plan, as ordered by

the trial court, satisfied Subsection (O).

The trial court found by clear and convincing evidence that Mother’s

parental rights should be terminated under Subsections (E), (I), (N), and (O), and,

further, that termination was in Molly’s best interest. Mother’s parental rights were

terminated, and she appealed.

Review of Bases for Termination

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

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

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

custody, and management of his or her children’ is an interest far more precious

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

1388, 1397 (1982) (quoting Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C.,

452 U.S. 18, 27, 101 S. Ct. 2153, 2160 (1981)); see In re M.S., 115 S.W.3d at 547.

Accordingly, termination proceedings are strictly scrutinized, and involuntary-

termination statutes are strictly construed in favor of the parent. Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Nonetheless, “the rights of natural parents are not

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absolute” and “[t]he rights of parenthood are accorded only to those fit to accept

the accompanying responsibilities.” In re A.V., 113 S.W.3d at 361 (quoting In re

J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that parents may forfeit

their parental rights by their acts or omissions, a court’s primary focus in a

termination suit is the protection of the child’s best interest. Id.

To terminate parental rights under Section 161.001 of the Family Code, the

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

committed one or more of the enumerated acts or omissions justifying termination

and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN.

§ 161.001(b) (West Supp. 2015). Clear and convincing evidence is “the measure or

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

conviction as to the truth of the allegations sought to be established.” Id. § 101.007

(West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).

Mother challenges the legal and factual sufficiency of the evidence to

support the trial court’s predicate findings under Subsection (E) and to conclude

that termination is in Molly’s best interest. When the legal sufficiency of the

evidence supporting the termination of parental rights is challenged, the reviewing

court looks at all of the evidence in the light most favorable to the termination

finding to determine whether a reasonable trier of fact could have formed a firm

belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344

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(Tex. 2009); In re J.F.C., 96 S.W.3d at 265–66. The reviewing court must assume

that the factfinder resolved disputed facts in favor of its finding if a reasonable

factfinder could do so. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at

266. It should disregard all evidence that a reasonable factfinder could have

disbelieved or found to be incredible. In re J.O.A., 283 S.W.3d at 344; In re J.F.C.,

96 S.W.3d at 266. If the reviewing court determines that no reasonable factfinder

could have formed a firm belief or conviction that the matter to be proved was true,

the court must conclude that the evidence on that matter is legally insufficient. In

re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266.

Only when the factual sufficiency of the evidence is challenged does the

reviewing court consider disputed or conflicting evidence. In re J.O.A., 283

S.W.3d at 345; In re J.F.C., 96 S.W.3d at 266. The evidence is factually

insufficient in a parental rights termination case if, in light of the entire record, the

disputed evidence that a reasonable factfinder could not have credited in favor of

the finding is so significant that a factfinder could not reasonably have formed a

firm belief or conviction. In re J.O.A., 283 S.W.3d at 345; In re J.F.C., 96 S.W.3d

at 266.

A single predicate finding under Section 161.001(1) of the Family Code is

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

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

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termination decree based on one predicate without reaching second challenged

predicate); In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.]

2003, pet. denied) (affirming termination decree based on single predicate). If

multiple predicate grounds are found by the trial court, we will affirm on any one

ground because only one is necessary for termination of parental rights. In re D.S.,

333 S.W.3d 379, 388 (Tex. App.—Amarillo 2011, no pet.); In re S.N., 272 S.W.3d

45, 49 (Tex. App.—Waco 2008, no pet.).

Here, the trial court based the termination of Mother’s parental rights on four

predicate grounds—Subsections 161.001(1)(E), (I), (N), and (O)—but she

challenges only the Subsection (E) ground. By not challenging the sufficiency of

the evidence on termination under Subsections (I), (N), and (O), Mother has

waived any complaint about the trial court’s findings under those subsections.

Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 102 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (“Holloway does not challenge the

sufficiency of the evidence supporting the findings under [Subsections (F), (N),

and (O)], and thus he waives any complaint about the sufficiency of the evidence

to support these findings.”); Gamez v. Tex. Dep’t of Family & Protective Servs.,

No. 03–09–00190–CV, 2009 WL 4456150, at *7 n.8 (Tex. App.—Austin Dec. 1,

2009, no pet.) (mem. op.) (“[T]he unchallenged finding concerning subsection

(O) alone is sufficient to support the district court’s order terminating Gamez’s

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parental rights.”); see In re A.V., 113 S.W.3d at 362 (“Only one predicate finding

under section 161.001(1) is necessary to support a judgment of termination when

there is also a finding that termination is in the child’s best interest.”).

Because each of the unchallenged findings is sufficient to justify

termination, we overrule her first issue and proceed to consider Mother’s argument

that the evidence is legally and factually insufficient to support the trial court’s

finding that termination of her parental rights is in Molly’s best interest.

Best Interest of the Child

Mother challenges the legal and factual sufficiency of the evidence to

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

best interest. In determining whether termination of parental rights is in a child’s

best interest, we consider several non-exclusive factors, including (1) the child’s

desires, (2) the current and future physical and emotional needs of the child, (3) the

current and future physical danger to the child, (4) the parental abilities of the

person seeking custody, (5) the availability of programs to assist the person

seeking custody in promoting the best interest of the child, (6) the plans for the

child by the person seeking custody, (7) the stability of the home, (8) any acts or

omissions of the parent that may indicate that the parent-child relationship is

improper, and (9) any excuse for the acts or omissions of the parent. Holley v.

Adams, 544 S.W.2d 367, 372 (Tex. 1976).

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The Department is not required to prove that all of these factors support the

termination of parental rights, and the absence of evidence on some factors does

not preclude the factfinder from reasonably forming a strong conviction that

termination is in the child’s best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex.

2002). Evidence establishing a predicate act under Section 161.001(1) may also be

relevant to determining the best interest of the child. See id. at 28.

The trial evidence demonstrates that Mother has a history of mental illness

and illegal drug use. She was aggressive with hospital staff following Molly’s

birth, gave inconsistent statements regarding the level of support available to her to

care for Molly, and made delusional statements to hospital staff and the

Department caseworker. A psychiatric evaluation performed at the hospital

indicated behavior consistent with mental illness, as well as a conclusion that

Mother was “at risk for harming [the] child at [the] present time.”

Mother tested positive for drug use at the birth of an older child and

subsequently relinquished her parental rights to several children. She admitted drug

use in the first trimester of her pregnancy with Molly and then tested positive for

cocaine and marijuana during the pendency of this suit. See In re A.C., 394 S.W.3d

633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (concluding that past and

ongoing drug use weighed in favor of conclusion that termination of parental rights

is in child’s best interest); see also In re G.A., No. 01–11–00565–CV, 2012 WL

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1068630, at *6 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem.

op.) (parent’s drug use can endanger child’s physical or emotional well-being and

indicates instability in home environment); In re J.T.G., 121 S.W.3d 117, 125

(Tex. App.—Fort Worth 2003, no pet.) (parent’s illegal drug use supports

conclusion that environment endangers physical or emotional well-being of

children). Mother admitted that she had refused to submit to hair-follicle drug tests

even though she realized a refused test would be treated as a positive test result.

Finally, Mother refused services under her parenting plan aimed at obtaining

psycho-social and mental health evaluations as well as therapy.

The Department caseworker testified that it was in Molly’s best interest that

Mother’s parental rights be terminated. She testified that Molly’s foster parents

were providing a loving home and meeting all of Molly’s needs. The foster mother

testified similarly and stated that she and her husband intended to adopt Molly if

Mother’s parental rights were terminated.

Viewing the evidence related to the Holley factors in the light most

favorable to the finding, we hold that a reasonable factfinder could have formed a

firm belief or conviction that termination of Mother’s parental rights is in the best

interest of the child. We, therefore, hold that the evidence is legally and factually

sufficient to support the trial court’s finding that termination of Mother’s parental

rights is in Molly’s best interest and overrule Mother’s second issue.

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Conclusion

We affirm the judgment of the trial court.

Harvey Brown

Justice

Panel consists of Chief Justice Radack and Justices Massengale and Brown.

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