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In re J.S.B.

Court of Appeals of Texas, First District

December 21, 2017

IN THE INTEREST OF J.S.B., A CHILD IN THE INTEREST OF E.L.B., A CHILD IN THE INTEREST OF D.M.W. AKA D.W., A CHILD

         On Appeal from the 310th District Court, Harris County, Texas, Trial Court Case Nos. 2011-38676, 2012-55490, 2012-05387J [1]

          Panel consists of Justices Jennings, Bland, and Brown.

          MEMORANDUM OPINION

          TERRY JENNINGS JUSTICE

         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 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 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.

         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 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 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 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" 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.

         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 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 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

          ("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 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 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.

         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.

         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] 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.

         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 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, 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] 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 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 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 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 threat[27]and another warrant was issued for her arrest on that same day in New Orleans, Louisiana for the offense of murder.[28]

         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 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 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 that a ...


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