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
Appeal from the 310th District Court, Harris County, Texas,
Trial Court Case Nos. 2011-38676, 2012-55490, 2012-05387J
consists of Justices Jennings, Bland, and Brown.
accelerated appeal,  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"). 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,
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,  termination of her parental rights was
in the best interest of the children,  and the
appointment of the Department of Family and Protective
Services ("DFPS") as the children's permanent
managing conservator was in their best
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.
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. 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.
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.
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.
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. 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.
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. 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.
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
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
regard to her first FSP,  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
regard to her second FSP,  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,  "a [pay]check stub,
" "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.
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.
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
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.
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.
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
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.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
("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.
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.
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
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.
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. And according to Axline, L.S.B. did want
the children returned to her care.
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.
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.
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.
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
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]." 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
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.
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. 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.
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."
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.]."
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."
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.]."
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."
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.]."
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."
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;on April 19, 2013, she was convicted of
the offense of "domestic abuse
battery" 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"; and on March 28, 2017, she was
convicted of the misdemeanor offense of assault and sentenced
to confinement for one year. 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 threatand another
warrant was issued for her arrest on that same day in New
Orleans, Louisiana for the offense of murder.
of Parental Rights
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).
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).
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.
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.
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 ...