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In re P.H.

Court of Appeals of Texas, Eighth District, El Paso

November 28, 2017

IN THE INTEREST OF P.H., A CHILD.

         Appeal from 65th District Court of El Paso County, Texas (TC # 2016DCM0578).

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD MCCLURE, CHIEF JUSTICE.

         This appeal is from a judgment terminating the parental rights of L.H. to her daughter. We affirm.

         FACTUAL SUMMARY

         L.H., hereinafter referred to as "Laura, " is the biological mother of one-year-old "Penny."[1]Laura has four other biological children ranging in age from about three to seventeen years of age. All four of these children have been removed from Laura's care and her parental rights to two of the children have been terminated. Laura's mother, Ava, adopted one of the children, and she is the managing conservator of two of the other children. Ava and these children live in California. Laura's brother adopted the fourth child. According to Ava, Laura has mental illness and behaves erratically when she does not take her medication. Ava further explained that Laura usually did not take her medication and this was a source of conflict between them. Laura frequently "took off with one or more of the children and moved from state to state. The children were removed at different points in time because Laura did not provide care for them. Laura sometimes fed the children candy rather than nutritious food, and she had trouble waking up to take them to school or pick them up later in the day. One of the children suffered a burn injury and she left another child locked inside of a U-Haul truck.

         In 2016, Laura was pregnant and living alone in Sierra Blanca, Texas, in a small storage shed without electricity, heat, plumbing, or running water. She explained that she had moved to Texas to buy a ranch "with no money down" but the property did not have electricity, sewage lines, or water. Laura has been receiving assistance from the Emergence Health Network (EHN) since November 23, 2015, and she regularly attends EHN counseling sessions. EHN worked with Laura to help her obtain a Texas ID card and bus pass and to also teach her basic skills needed for daily life, such as personal hygiene, taking medication daily, and money management. As the designated payee of Laura's SSI, EHN pays her rent[2] and other bills. On the night Laura went into labor in January 2016, she was found wandering the streets in Sierra Blanca when the temperature was in the lower 30's. An acquaintance took her to the jail so she would have a warm and safe place to sleep. When Laura went into labor, EMS transported her to El Paso. After Penny was born, hospital personnel observed that Laura was exhibiting cognitive deficits and a psychiatric examination was conducted. The examination revealed that Laura did not have the cognitive ability to care for her newborn child, she could not make decisions for herself, and she was having difficulty caring for herself without supervision. Consequently, the hospital made a report to the Department. The Department substantiated the allegations of neglectful supervision and removed the three-day old child from Laura's care. The trial court granted the Department temporary custody of Penny, and the Department placed her with Ava in California. Laura has lived in El Paso since Penny was born.

         The Department developed a service plan for Laura and the trial court ordered her to comply with each of its requirements. The service plan required Laura to participate in parenting classes and counseling to address personal issues surrounding the removal of her children. The requirement that Laura attend parenting classes gave her an opportunity to learn parenting skills and demonstrate that she could provide long-term care for the child. Laura did not, however, attend the parenting classes. Laura testified that she attended the counseling sessions, but the evidence showed that she was referring to the EHN counseling sessions. The service plan also required Laura to attend visitations with Penny. Laura attended some but not all of the scheduled visitations. She satisfied the service plan's requirements that she participate in a psychological evaluation and OSAR assessment.

         The Department filed a termination petition alleging that Laura: (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child (Section 161.001 (b)(l)(D), Texas Family Code); (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child (Section 161.00l(b)(1)(E), Texas Family Code); and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child (Section 161.00l(b)(1)(O), Texas Family Code). The trial court found that the Department had proven the termination grounds under Section 161.001(b)(1)(E) and (O) by clear and convincing evidence, and that termination of Laura's parental rights were in the child's best interest. The trial court appointed the Department as the permanent managing conservator of the child.

         TERMINATION GROUNDS AND BEST INTEREST UNDER SECTION 161.001

         Laura raises three issues challenging the legal and factual sufficiency of the evidence supporting the trial court's findings. In Issues One and Two, Laura attacks the legal and factual sufficiency of the evidence supporting the two predicate termination grounds found by the trial court under Section 161.001(b)(1). In Issue Three, she challenges the legal and factual sufficiency of the evidence supporting the best interest finding made under Section 161.001(b)(2).

         Parental rights may be involuntarily terminated through proceedings brought under Section 161.001 of the Texas Family Code. See Tex.Fam.Code Ann. § 161.001 (West Supp. 2017). Under this provision, the petitioner must (1) establish one or more of the statutory acts or omissions enumerated as grounds for termination, and (2) prove that termination is in the best interest of the children. See id. Both elements must be established and termination may not be based solely on the best interest of the child as determined by the trier of fact. Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In the Interest of A.B.B., 482 S.W.3d 135, 138 (Tex.App.--El Paso 2015, pet. dism'd w.o.j.). Only 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's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We will affirm the termination order if the evidence is both legally and factually sufficient to support any alleged statutory ground the trial court relied upon in terminating the parental rights as well as the finding of best interest. J.S v. Texas Department of Family and Protective Services, 511 S.W.3d 145, 159 (Tex.App.--El Paso 2014, no pet).

         Standards of Review

         When reviewing the legal sufficiency of the evidence in a termination case, we consider all of the evidence in the light most favorable to the trial court's finding, "to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true." In the Interest of J.P.B., 180 S.W.3d 570, 573 (Tex. 2005), quoting In re J.F.C, 96 S.W.3d 256, 266 (Tex. 2002); see In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We give deference to the fact finder's conclusions, indulge every reasonable inference from the evidence in favor of that finding, and presume the fact finder resolved any disputed facts in favor of its findings, so long as a reasonable fact finder could do so. In the Interest of J.P.B., 180 S.W.3d at 573. We disregard any ...


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