Lashonda Rochelle v. Department of Family and Protective Services

Opinion issued on February 9, 2006 In The Court of Appeals For The First District of Texas NOS. 01-05-00311-CV 01-05-00312-CV LASHONDA MONTRIE ROCHELLE, Appellant V. DEPARTMENT OF FAMILY & PROTECTIVE SERVICES, Appellee On Appeal from 314th District Court Harris County, Texas Trial Court Cause Nos. 2004–06028J and 2004–03043J MEMORANDUM OPINION Following a bench trial, the trial court terminated the parental rights of appellant, Lashonda Montrie Rochelle, to her five minor children, K.R., J.B., J.P., F.B., and A.B. Presenting four issues, appellant (1) challenges the legal and factual sufficiency of the evidence to support a finding under Family Code subsection 161.001(1)(E) that appellant “engaged in conduct or knowingly placed [the children] with persons who engaged in conduct which endangers the physical or emotional well-being of [the children];” (2) contends that no evidence was presented to support a finding that termination was in the children’s best interest; (3) asserts that her right to due process was violated by the termination; and (4) contends that the trial court erred when it named appellee, the Department of Protective and Family Services (“the Department”), as the children’s sole managing conservator. We affirm. Background In 1997, appellant was 15 when she gave birth to her son, K.R. Another son, J.B., was born in 2002, and a third, J.P., was born in 2003. Each of the children had different fathers. None of the fathers lived with appellant and her children, nor did they actively participate in the children’s lives. On March 26, 2004, the Department received a report that seven-year-old K.R. had been abused by appellant. An investigator from the Department interviewed K.R. at his school on March 29, 2004. K.R. told the investigator that appellant had hit him on the back and in the face with a belt. The investigator observed that K.R. had new injuries and old scars. The investigator noted that K.R. had bruising, belt marks on his face, and marks on his back. K.R. later reported, during a videotaped interview, that appellant had tied his hands behind his back with an extension cord and hit him with a belt and had punched him in the head and in the stomach. K.R. also reported that appellant had physically disciplined his two younger brothers, J.B. and J.P. When the Department’s investigator interviewed appellant, she confirmed that she had “whooped” K.R. with a belt several times, but had not checked to determine whether she had left any marks on him. Appellant denied physically disciplining J.B. and J.P. The Department determined that the three children were at risk of further injury and removed them from appellant’s care. The Department was granted temporary conservatorship of the children. In April 2004, the Department presented appellant with a family service plan with the stated goal of family reunification. As part of the service plan, appellant was required to complete parenting classes, to attend anger management classes, to participate in individual therapy, to attend bimonthly visits with her children, to obtain suitable housing, and maintain financial support for herself and her children. Because appellant was not able to provide the Department with the names of any relatives who were suitable to care for the children, the three children were placed together in a foster home. The foster mother soon discovered that K.R. had behavioral problems. K.R. was disruptive in school and was diagnosed with mood disorder, psychotic disorder, and attention deficit disorder, requiring K.R. to take four different medications. K.R.’s behavioral issues resulted in three separate suspensions from school and ultimately resulted in a hospitalization in September 2004. K.R. continues to attend therapy every other week and sees a medical doctor every three to four weeks. On May 19, 2004, appellant gave birth two months prematurely to twins, F.B. and A.B. The twins were born with a number of physical problems. F.B. was born deaf in his left ear. A.B. is deaf in both ears. F.B. has a heart condition requiring him to wear a heart monitor at night. The twins both suffer from acid reflux and take medication for the condition. At times, A.B.’s acid reflux results in her not being able to take a breath, requiring her to be visually monitored. A.B. has also been diagnosed with microcephalus. The twins remained hospitalized for approximately two months following their birth. After their release, the twins were also placed in foster care. In September 2004, the Department issued another family service plan, changing its stated goal for the children from family reunification to adoption. At that point, the Department sought to terminate appellant’s parental rights to her five children. After a two-day bench trial beginning on February 23, 2005, the trial court orally found that appellant’s parental rights to her five children should be terminated pursuant to Family Code section 161.001(1)(E), one of the grounds pled by the Department, and that such termination was in the children’s best interest. The trial court’s decrees terminating appellant’s parental rights each recited that the trial court had found by clear and convincing evidence that appellant had “engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children, pursuant to § 161.001(1)(E) of the Texas Family Code.” The decrees also recited that the trial court had found by clear and convincing evidence that termination was in the children’s best interest. No findings of fact or conclusions of law were requested or filed. Sufficiency of the Evidence A. Burden of Proof and Standard of Review The burden of proof at trial in parental-termination cases is by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2005); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Section 161.001 of the Texas Family Code provides the method by which a court may involuntarily terminate the parent–child relationship. Tex. Fam. Code. Ann. § 161.001. Under this section, a court may order the termination of the parent–child relationship if the court finds, by clear and convincing evidence, that (1) one or more of the acts enumerated in subsection 161.001(1) was committed and (2) termination is in the best interest of the child. Id. “Clear and convincing evidence” means 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 2002); J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened standard of review. When determining legal sufficiency, we review all the evidence in the light most favorable to the finding “to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” J.F.C., 96 S.W.3d at 266. To give appropriate deference to the factfinder’s conclusions, we must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. This does not mean that we must disregard all evidence that does not support the finding. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. Therefore, in conducting a legal-sufficiency review in a parental-termination case, we must consider all of the evidence, not only that which favors the verdict. See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). In determining a factual-sufficiency point, the higher burden of proof in termination cases also alters the appellate standard of review. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). “[A] finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.” Id. at 25. In considering whether evidence rises to the level of being clear and convincing, we must consider whether the evidence is sufficient to produce in the mind of the factfinder a firm belief or conviction as to the truth of the allegation sought to be established. Id. We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. “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, then the evidence is factually insufficient.” Id. The natural rights that exist between parents and their children are of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Therefore, termination proceedings should be strictly scrutinized, and the involuntary termination statutes should be strictly construed in favor of the parent. Id. at 20–21. However, “[j]ust as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.” C.H., 89 S.W.3d at 26. B. Endangerment Through Course of Conduct: Section 161.001(1)(E) As mentioned, one of the grounds pled by the Department for terminating appellant’s parental rights was Family Code subsection 161.001(1)(E). This subsection provides that a court may terminate the parent-child relationship if the court finds by clear and convincing evidence that the parent has engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child. Tex. Fam. Code Ann. § 161.001(1)(E). In issues one and two, appellant challenges the legal and factual sufficiency of the evidence to support such a conclusion. Within the context of subsection 161.001(1)(E), “endanger” means to expose a child to loss or injury or to jeopardize a child’s emotional or physical health. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The danger to a child must arise solely from the parent’s conduct as established by the parent’s actions or by the parent’s failure to act. See Robinson v. Tex. Dep’t of Protective & Regulatory Servs., 89 S.W.3d 679, 688 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Although “endanger” means more than a “threat of metaphysical injury or the ill effects of a dysfunctional family,” it does not require that the conduct be actually directed at a child or that a child suffer an actual injury. Boyd, 727 S.W.2d at 533. That is, the conduct does not have to constitute a concrete threat of injury to the child. In re M.J.M.L., 31 S.W.3d 347, 350 (Tex. App.—San Antonio 2000, pet. denied). The conduct does not have to occur in the presence of the child. Director of Dallas County Child Protective Servs. v. Bowling, 833 S.W.2d 730, 733 (Tex. App.—Dallas 1992, no writ). And the conduct may occur before the child’s birth and both before and after the child has been removed by the Department. In re S.M.L.D., 150 S.W.3d 754, 757–58 (Tex. App.—Amarillo 2004, no pet.). Termination under subsection 161.001(1)(E) typically requires evidence of more than a single act or omission. In re D .T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied). Endangerment may be satisfied by showing that a parent engaged in a “course of conduct” that endangered the child’s physical or emotional well-being. In re U.P., 105 S.W.3d 222, 233 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Appellant suggests that the verdict in this case is based on “hearsay, rank speculation, legal conclusion, and assertion,” without legally sufficient proof. Appellant attacks as conclusory the testimony of the case worker and the ad litem, who each testified that appellant’s parental rights should be terminated. Appellant also contends that “the single act for which all 5 of Appellant’s children were taken from her involved the ‘whoppin’ Appellant gave to her eldest child [K.R.] when, according to Appellant, he disobeyed her.” We disagree with appellant’s characterization of the record. Contrary to appellant’s assertions, the following evidence supports a finding that appellant engaged in a course of conduct that endangered the physical or emotional well-being of her children: • The Department’s investigator testified that K.R. told him that appellant had hit him on the back and on the face with a belt. The investigator also testified that both old and new injuries were apparent on K.R. The investigator stated that he saw belt marks on K.R.’s back and face and that he also observed bruising on K.R. • In the videotaped interview, K.R. described separate instances of appellant’s “whooping” him with a belt. K.R. described that, following one, he was left with dried blood on his head. K.R. also related how appellant had made him lie on his stomach, tied his hands behind his back with an extension cord, and then hit him with a belt. When the interviewer asked him how many times appellant had hit him with a belt, K.R. said, “1000 times.” According to K.R., appellant “whooped” him every day. K.R. told the interviewer that appellant had on two occasions punched him in the head and in the back. He also stated that appellant had slapped him, resulting in a nose bleed. K.R. told the interviewer that appellant had slapped two-year-old J.B. in the face and in the process had scratched J.B. with her fingernail. K.R. said that appellant also slapped 10-month-old J.P. on the leg. When asked, K.R confirmed that he was afraid of appellant. On the videotape, the interviewer pointed out several marks and bruises on K.R.’s body, which K.R. attributed to appellant. • K.R.’s foster mother testified that K.R. told her that appellant had tied him up and indicated that appellant had hit him with a garden hose. • In a psychological evaluation of appellant, the psychologist wrote that “[appellant’s] parenting style will tend to be controlling and demanding. She may fail to understand the developmental needs of her children and will look to them for comfort and assurance.” The psychologist concluded that “[t]his role reversal may cause her to take their misbehavior more personally as if they are failing to take care of her by making things difficult.” • The Department’s caseworker assigned to the five children, Christine Wagner, testified that, when appellant gave birth to the twins, the doctors at the hospital told Wagner that appellant had waited until three days after her membranes had ruptured to come to the hospital. Wagner testified that she was told that appellant was dilated 10 centimeters and that the twins were in such distress that an emergency caesarean section had to be performed. • During trial, appellant acknowledged that she had virtually no pre-natal care during her pregnancy with the twins, admitting that she had gone to only one doctor’s visit two months before the twins’ birth to confirm that she was pregnant. • In the psychological evaluation of appellant, the psychologist wrote, “It seems odd that [appellant] did not make the effort to get prenatal care for any of her pregnancies. She seemed to push this aside easily when she spoke to 4Cs by saying that she did not want to mess with the paperwork. She said that she was ‘just too lazy.’” The psychologist further wrote that she was “concerned that this suggests some serious neglect on [appellant’s] part and a lack of caring for her unborn children and perhaps a lack of bonding to them.” • The twins’ foster mother testified regarding the infants’ physical problems and described the high degree of vigilance and attention required on a daily basis to care for the twins. The foster mother described the training that she had to undergo to learn how to care for the twins. She testified that she spent three days at the hospital learning how to feed the twins and that she also stayed overnight at the hospital as part of her training. • Appellant testified that, with regard to learning how to care for her twins, she “did a class once with a lady that [sic] had a premature son and it was only for a [sic] hour.” Appellant testified that she did not realize that F.B. had a heart condition until two months after his birth. She did not know that the twins had a problem with reflux until one of her visitations with them. Appellant admitted that, because she had not taken the appropriate training, she would not know “the correct procedure” to follow if one of the twins spit up. In fact, the twins’ foster mother testified that, during a visitation with appellant, A.B. had a “spit attack” and that appellant did not know how to handle it. It is pertinent to this case that the manner in which a parent treats other children in the family can be considered in deciding whether that parent engaged in a course of conduct that endangered the physical or emotional well-being of a child. See, e.g., In re D.L.N., 958 S.W.2d 934, 939 (Tex. App.—Waco 1997, pet. denied) (concluding that jurors could consider evidence showing how parent treated child’s two sisters in deciding if parent engaged in course of conduct that endangered physical or emotional well-being of subject child), disapproved on grounds by J.F.C., 96 S.W.3d at 267, and C.H., 89 S.W.3d at 26. This is true even though the cited conduct occurred before the birth of the subject child. See, e.g., Navarrette v. Tex. Dep’t of Human Resources, 669 S.W.2d 849, 850 (Tex. App.—El Paso 1984, no writ) (upholding termination of parental rights over child taken into custody from hospital after birth, even though child was not subjected to deplorable living conditions of six siblings). From appellant’s abuse of K.R., the trial court, as factfinder, could have inferred that J.B. and J.P. were treated similarly and that all four children would face this type of treatment in the future if placed in appellant’s care. See D.L.N., 958 S.W.2d at 939 (“From Bowden’s neglect of her other two children who lived with her, the jury could infer that D.L.N. was similarly treated before she came to live with the Dotsons, while visiting with Bowden, and that D.L.N. would face this type of treatment in the future if returned to Bowden’s care.”); see also In re T.L.S., 170 S.W.3d 164, 166 (Tex. App.—Waco 2005, no pet.) (recognizing that “[d]uring the last decade, a principle has emerged in parental termination and child custody cases which recognizes that evidence that a parent has engaged in abusive or neglectful conduct in the past permits an inference that the parent will continue this behavior in the future.”). We recognize that not all of the above-listed evidence is undisputed. At trial, appellant denied not only that she had intentionally hit K.R. in the face or physically abused him to the degree that he described, but also denied physically disciplining either J.B. or J.P. Appellant also testified that she believed that her behavior could be “corrected.” When asked what she would do differently, appellant stated that she would not yell at or spank the children, but would try to communicate with them. Maintaining our assigned constitutional role, we recognize that it was the trial court’s role as factfinder to judge the credibility of the witnesses in this case, not ours. As such, it was the trial court’s prerogative to believe K.R. and to disbelieve appellant. Nothing in the record renders K.R.’s accusations inherently incredible. To the contrary, K.R.’s claims of abuse are supported by the old and new marks visible on his body at the time of the interview. Similarly, the trial court could have disbelieved appellant’s claim that she would change her behavior. The psychologist’s evaluation also illuminates appellant’s testimony. The psychologist observed that appellant “tends to portray herself as being exceptionally free of shortcomings to which most individuals will admit” and that appellant “may be blindly uncritical of her own behavior tending to minimize the negative impact of her behavior has on others . . . .” As previously detailed, the evidence also showed that appellant waited three days to go to the hospital after her water broke to deliver the twins. At that point, the twins were in distress and an emergency caesarean section was performed. The evidence also shows that appellant had received almost no pre-natal care during her pregnancy. Appellant points out that no evidence was presented indicating that her failure to obtain pre-natal care or her waiting for three days to go to the hospital resulted in either the twins’ premature birth or their physical problems following birth. Nevertheless, for parental conduct to constitute endangerment of a child’s well-being, it is not necessary that the conduct be directed at the child or that the child actually suffer injury; rather, it is sufficient that the child’s well-being be jeopardized or exposed to loss or injury. Boyd, 727 S.W.2d at 533. The specific danger to the child’s well-being need not be established as an independent proposition, but may instead be inferred from parental misconduct. Id. A showing of a causal connection between the parent’s conduct and any resultant injury or adverse effect to the child is not required. Id.; see In re W.A.B., 979 S.W.2d 804, 807 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (concluding that subsection 161.001(1)(E) does not require causal connection between parent’s misconduct and actual harm to child resulting from that misconduct; noting that “endanger” has been interpreted by Texas Supreme Court to mean to expose to loss or injury or to jeopardize); In re R.D., 955 S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied) (recognizing that subsection 161.001(1)(E) does not require showing that parental conduct caused actual injury to child). Thus, even though no causal connection was established between appellant’s actions and an actual injury to the twins, the trial court could have inferred that appellant’s conduct exposed the twins to injury and placed them in jeopardy, i.e. endangered the twins’ physical well-being. The trial court could have further reasoned that, if they were placed in appellant’s care, the twins’ physical and emotional welfare would be at risk, given their special needs. The trial court also could have reasonably inferred that such conduct shows a lack of concern for the children and a lack of judgment that could place all five children in jeopardy for neglect and abuse. Such inferences are further supported by appellant’s conduct following the twins’ birth. During the twins’ two-month hospitalization, appellant testified that she visited the twins three times a week during the first month and visited them only once in the second month. Appellant attributed her lack of visitation to her work schedule. At no time before trial, which was nine months after the twins were born, had appellant obtained the training necessary to care for her twins’ special medical needs. Appellant’s conduct relating to the twins’ birth and in the months that followed occurred at a time when she knew that she was at risk of losing her parental rights to her three older children. We note that evidence was presented indicating that appellant had completed many of the requirements of the family service plan. Appellant took the required parenting and anger management classes, went to all the bimonthly visitations with her children, and underwent the required psychological evaluation. Appellant was also enrolled in a business school and testified that she expected to be placed in a position upon the program’s completion. However, the evidence also indicated that appellant had not complied with other requirements. For example, appellant did not pay the $25 per-month child support that she was required to pay while the children were in foster care and did not maintain consistent employment. We conclude that the evidence, viewed in the light most favorable to a finding of endangerment, was sufficiently clear and convincing such that a reasonable factfinder could have formed a firm belief or conviction that appellant engaged in conduct that endangered the children’s physical or emotional welfare. Although some conflicting evidence was presented, such evidence was not so significant that a reasonable trier of fact could not have reconciled such evidence in favor of its finding and formed a firm belief or conviction that appellant engaged in conduct that endangered the children’s physical or emotional welfare. Accordingly, we hold that the evidence was legally and factually sufficient to support an endangerment finding. C. Best Interest of the Children Appellant also challenges the legal sufficiency of the evidence to support the trial court’s required finding that termination would be in the children’s best interest. See Tex. Fam. Code Ann. § 161.001(2) (Vernon Supp. 2005). As worded, appellant’s issue does not challenge the factual sufficiency of the evidence to support a finding that termination was in the children’s best interest. Appellant contends, Other than self-serving testimony of the caseworker and the guardian ad litem, there is no evidence offered by the State that termination was in the best interest of each and every one of Appellant’s children. [The Department] failed to put forth credible evidence regarding how termination of Appellant’s parental rights would be in the best interest of each of appellant’s children. Some of the factors that an appellate court may consider in ascertaining the best interest of a child include the non-exhaustive list set forth in Holley v. Adams. 544 S.W.2d 367, 371–72 (Tex. 1976). Those factors include the following: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. These factors are not exhaustive. C.H., 89 S.W.3d at 27. The absence of evidence about some of these factors does not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child’s best interest. Id. “Best interest” does not require proof of any unique set of factors, nor does it limit proof to any specific factors. Holley, 544 S.W.2d at 371–72. With the foregoing legal precepts in mind, we review the legal sufficiency of the evidence to support the trial court’s finding that termination was in the children’s best interest. The Department relies on appellant’s history of physical abuse toward the three oldest children, particularly K.R., to support the trial court’s best-interest finding. We agree that such evidence is relevant not only to support the trial court’s endangerment finding, but also to support the best-interest determination. See C.H., 89 S.W.3d at 28; In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). We also review the evidence as it relates to the Holley factors. The evidence showed that the children were not bonded with appellant. K.R. told the Department’s interviewer that he was afraid of appellant. K.R. also expressed that he did not want to visit appellant. During the visits, K.R. would draw or read books. After the visits, K.R. would be angry. At the time of trial, K.R. no longer visited with his mother based on his therapist’s recommendation. During the visits, J.B. would try to leave the room and cry, but would calm down after the visits. The twins would also cry during the visits and appellant did not appear to know how to comfort them. In contrast, evidence was presented that the children were bonded with their respective foster mothers. K.R.’s and the twins’ foster mothers each testified in detail about K.R.’s and the twins’ special needs. The evidence showed not only that the foster mothers understood the children’s special needs, but that the foster mothers were doing what was needed to care for those special needs. The evidence also showed that the twins and K.R. were thriving in their foster homes. In comparison, the evidence showed that appellant appeared to have little knowledge of the twin’s special needs and had made little effort to learn how to care for them, even though appellant knew that she was at risk of losing her parental rights. As mentioned, the psychologist who saw appellant indicated in her evaluation that appellant’s parenting style was “controlling and demanding.” She wrote that appellant “will tend to have inappropriate expectations of her children’s behavior” and that appellant “will lack understanding of [her children’s] developmental needs” and “expects her children to act right and good.” The psychologist concluded that appellant would “have problems handling parenting stress and will look to her children as a source of comfort and assurance. This role reversal may cause her to take their misbehavior more personally as if they are failing to take care of her by making things difficult.” The Department presented evidence that the children were adoptable. Each foster mother testified that she desired to keep the children in her care long term. When asked whether she was asking the trial court to give her children back to her, appellant testified, “Well I mean not today but I mean in some time.” The Department also presented evidence that appellant had not provided any names of relatives who were suitable to care for the children. The children’s caseworker, Christine Wagner, testified that appellant had not obtained suitable housing. Appellant was living in a three-bedroom apartment through a public assistance program. Appellant had claimed that the five children were living with her to obtain the housing. Wagner was concerned that, if the housing agency learned that she did not have custody of the children, appellant would lose the housing. The caseworker testified that, when she visited the apartment, it was in disarray with “clothes everywhere.” Wagner stated that the apartment lacked furniture, but that appellant had told her that furniture was scheduled to arrive that day. Appellant testified that her rent was being paid by Andrew Botley, the father of the twins, a man who is married to another woman and has a criminal record. The evidence also showed that appellant had not complied with the service plan by maintaining consistent employment. Though appellant showed that she had been temporarily employed, she testified that, at the time of trial, she was purposefully unemployed because she wanted to collect unemployment compensation. In sum, given the evidence, the trial court could have reasonably inferred that the children were at risk for neglect and abuse should they be placed with appellant and that appellant could not provide the children with a stable home. We conclude that the evidence, viewed in the light most favorable to a finding, was sufficiently clear and convincing such that a reasonable fact finder could have formed a firm belief or conviction that termination of the parent-child relationship between appellant and her five children was in the children’s best interest. Thus, we hold that the evidence was legally sufficient to support such finding. We overrule appellant’s first and second issues, challenging the legal and factual sufficiency of the evidence to support the trial court’s termination of parental rights to her five children. In her statement of the issues, appellant’s third issue questions whether her federal constitutional right of due process was violated when her parental rights were terminated. Despite the initial statement, appellant does not offer separate argument or authority for her third issue. Because issue three is not adequately briefed, it is overruled. See Tex. R. App. P. 38.1(h). To the extent that the third issue was intended to be subsumed by appellant’s first two issues, it, like those issues, is also overruled. Sole Managing Conservatorship In her fourth issue, appellant asserts that the trial court erred in naming the Department as the children’s sole managing conservator. Appellant contends that “there must be sufficient evidence that [naming the Department as sole managing conservator] is in the children’s best interest.” Appellant’s substantive argument is as follows: “In light of the fact that the evidence is insufficient to support the court’s decision to terminate Appellant’s parental rights, it follows that it was not in the children’s best interest that [the Department] be appointed sole managing conservator of Appellant’s children.” As framed, appellant’s argument relies on a flawed premise: that the evidence was not sufficient to support the termination of her parental rights. In the preceding sections, we overruled appellant’s sufficiency challenges to the trial court’s termination order. Thus, based on the argument presented, appellant’s challenge to the trial court’s appointment of the Department as the children’s sole managing conservator also fails. Accordingly, appellant’s fourth issue is overruled. Conclusion We affirm the judgments of the trial court. Laura Carter Higley Justice Panel consists of Justices Taft, Higley, and Bland.