in the Interest of C.M.J., a Child

Affirmed and Memorandum Opinion filed July 10, 2008 Affirmed and Memorandum Opinion filed July 10, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00838-CV NO. 14-07-00839-CV ____________ IN THE INTEREST OF C. J. AND C. M. J., CHILDREN On Appeal from the 311th District Court Harris County, Texas Trial Court Cause Nos. 2006-16600 and 2005-63879 M E M OR AN D U M   O P I N I O N Appellant, Jacquelyn Shavon Moore, challenges the termination of her parental rights to her minor children C.M.J. and C.J. The Texas Department of Family and Protective Services (Athe Department@) brought suit to terminate the parent-child relationship between appellant and C.M.J. and C.J., and after a jury trial, appellant=s parental rights were terminated. In four issues, appellant contends that the evidence is legally and factually insufficient to support the trial court=s judgment terminating her parental rights. We affirm. BACKGROUND Appellant is the mother of C.M.J. and C.J. Jermie Jackson is the father of C.M.J., and C.J.=s father is unknown. The Department first got involved in this case in September 2005 when appellant accused Jackson of sexually abusing C.M.J. Although the sexual abuse allegation was dismissed, the Department began to investigate appellant. Appellant, then five months pregnant with her second child, C.J., admitted to using marijuana and Xanax and told a caseworker that she did not want C.J. Appellant acknowledged that she was involved in domestic violence and claimed to be bipolar. In December 2005, the Department determined that services were needed and created a safety plan. C.M.J. was placed with appellant=s mother, Re=Ginald Longmiles, and appellant was referred for psychological evaluation. The safety plan required that appellant be supervised at all times by Longmiles while appellant was in the presence of C.M.J. The safety plan was later modified to prohibit appellant from visiting C.M.J. at Longmiles=s apartment because appellant exhibited aggressive behavior and, although still pregnant with C.J., continued to use drugs. C.J. was born in February 2006, and the following month, appellant was temporarily hospitalized for major depressive disorder and psychotic features. Shortly thereafter, appellant and Longmiles violated the safety plan. Specifically, in March 2006, Longmiles went to a grocery store and asked her mother, Dorothy Labba, to supervise appellant with C.J. C.M.J. was with her father at the time. Labba agreed, and Longmiles left appellant and C.J. to be supervised by Labba. When Longmiles returned, appellant, C.J., and Labba were not in the apartment. Longmiles searched for appellant and C.J. and asked neighbors of their whereabouts, but they were nowhere to be found. Longmiles contacted the Department and police. The Department found appellant and C.J. two days later at an unknown neighbor=s apartment. The Department took custody of C.J. and C.M.J. and sought to terminate appellant=s parental rights as to both children. Longmiles intervened, requesting sole managing conservatorship. The trial court designated the Department as temporary managing conservator of the children. The Department temporarily placed C.J. in foster care and placed C.M.J. with Jackson. Following removal, the Department prepared a family service plan to reunify appellant with her children. A social worker explained the plan and the steps that appellant needed to complete to be reunified with her children. Appellant acknowledged that she understood successful completion of the plan was a prerequisite to reunification. Although appellant showed some initiative in complying with the plan, she frequently missed appointments with her doctors and parental visits with her children. Due to her tardiness and absenteeism, appellant=s family visits and medical and psychiatric treatments were cancelled. Appellant failed to complete follow-up recommendations by her psychiatrists and drug counselors. Caseworkers also noticed that appellant had become more aggressive and psychotic and exhibited peculiar behavior. On one occasion, appellant arrived at an appointment fully covered in vaseline and attempted to persuade other children to leave the facility with her. At trial, evidence was introduced regarding appellant=s failure to comply with the service plan and appellant=s history of physical violence. There was evidence that appellant had continuously engaged in physical altercations, one of which occurred while pregnant with C.J. The jury heard evidence of appellant=s prior drug use. There was also evidence that appellant had been hospitalized on at least four occasions for mental health issues within a year after C.J.=s birth. Appellant testified that she did not have a stable home for the children and had been employed for approximately four months prior to trial. Appellant admitted that she was unable to care for the children, but asked that her rights not be terminated and that the children be temporarily placed with Longmiles. The jury found by clear and convincing evidence that appellant=s parental rights should be terminated as to both C.M.J. and C.J.,[1] and awarded joint managing conservatorship of C.M.J. to Jackson and Longmiles. Jackson was designated primary joint managing conservator. With respect to C.J., the Department and Longmiles were appointed joint managing conservators, and Longmiles was designated primary joint managing conservator. The trial court rendered judgment pursuant to the jury=s verdict and terminated appellant=s parental rights. On appeal, appellant contends that: (1) the evidence is legally and factually insufficient to support the trial court=s judgment under section 161.003 that the Department was the temporary or sole managing conservator of the children for at least six months prior to the filing of its petition; and (2) the evidence is legally and factually insufficient to support the trial court=s judgment that termination was in the Abest interest@ of the children. STANDARD OF REVIEW Parental rights can be involuntarily terminated only by a showing of clear and convincing evidence. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Clear and convincing evidence is the 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 proved. Tex. Fam. Code ' 101.007. In a legal sufficiency review, we look at all the evidence in the light most favorable to the finding to determine whether the fact-finder could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In re J.I.T.P., 99 S.W.3d 841, 843 (Tex. App.CHouston [14th Dist.] 2003, no pet.). When determining legal sufficiency, we review all the evidence in the light most favorable to the finding Ato determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.@ In re J.F.C., 96 S.W.3d at 266. To give appropriate deference to the fact-finder=s conclusions, we must assume that the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. Id. We disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. Id.; In re J.I.T.P., 99 S.W.3d at 844. In a factual sufficiency review, we determine whether the fact-finder could reasonably form a firm belief or conviction based on the evidence about the truth of the State=s allegations. In re J.I.T.P., 99 S.W.3d at 844. We should consider whether the disputed evidence is such that a reasonable fact-finder could not have resolved that disputed evidence in favor of its findings. In re J.F.C., 96 S.W.3d at 266. If, in the light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction about the truth of the State=s allegations, then the evidence is factually insufficient. Id. We must give due deference to the jury=s factfindings, and we should not supplant the jury=s judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). ANALYSIS In appellant=s first and second issues, she challenges the legal and factual sufficiency of the evidence for termination based on mental illness pursuant to section 161.003. Specifically, appellant contends that the evidence is legally and factually insufficient to establish that the Department was the temporary or sole managing conservator for at least six months prior to the filing of its petition. A. Statutory Termination Under Section 161.003 Section 161.003 of the Texas Family Code provides that parental rights may be terminated in a suit filed by the Department if: (1) the parent has a mental or emotional illness or mental deficiency that renders the parent unable to provide for the physical, emotional, and mental needs of a child; (2) the illness or deficiency will continue to render the parent unable to provide for the child=s needs until the 18th birthday of the child; (3) the Department has been the temporary or sole managing conservator of the child for the parent at least six months preceding the date of the termination hearing; (4) the Department has made reasonable efforts to return the child to the parent; and (5) the termination is in the best interest of the child. Tex. Fam. Code ' 161.003(a). Appellant contends that there is no evidence, or in the alternative, factually insufficient evidence that the Department was the temporary or sole managing conservator at least six months prior to the filing of its original petition for termination. The statute, however, mandates that the six months precede the termination hearing, not the date in which the Department filed its petition. See id. The record reflects that the Department was designated the temporary managing conservator of the children in March 2006, and the termination hearing was in July 2007. Accordingly, there is clear and convincing evidence that the third element under section 161.003 was met by the Department.[2] We overrule appellant=s first and second issues. B. Statutory Termination Under Section 161.001(1) and Best Interest of the Children In her third and fourth issues, appellant contends that the evidence is legally and factually insufficient to establish that termination of her parental rights was in the children=s best interest. Appellant does not challenge the sufficiency of the evidence based on the grounds for termination articulated under subsections 161.001(1)(D), (E), or (O), but rather challenges the sufficiency of the evidence with respect to the best interest of the children. There is a strong presumption that preserving the parent-child relationship is in the best interest of a child. Tex. Fam. Code '' 153.131(b), 153.191, 153.252. It is the Department=s burden to rebut this presumption. In re S.M.L., 171 S.W.3d 472, 480 (Tex. App.CHouston [14th Dist.] 2005, no pet.). We consider the following factors in determining the best interest of the child: (1) the child=s desires; (2) the child=s emotional and physical needs 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 which may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re J.I.T.P., 99 S.W.3d at 846. ABest interest@ does not require proof of any unique set of factors, nor does it limit proof to any specific factors. In re S.M.L., 171 S.W.3d at 480. 1. Emotional and Physical Endangerment The physical danger to C.M.J. and C.J. is well evidenced by appellant=s history of domestic violence and physically aggressive behavior. The jury heard evidence that appellant=s family was unable to control her violent behavior, and that appellant needed to be supervised at all times while in the presence of the children. Appellant initiated numerous physical altercations with her brother and mother, and attempted to stab her brother on one particular occasion. See Tex. Fam Code ' 263.307 (listing history of physical abuse or assaultive conduct as a factor in determining best interest of a child). Complaints of violent conduct were made against appellant by neighbors when appellant resided with Longmiles. There was testimony that appellant initiated a verbal altercation with a supervisor at the Department and threatened to take the supervisor=s child. Appellant also engaged in a physical altercation while pregnant with C.J. Additionally, appellant had been hospitalized at least four times within a year for mental illnesses. She was diagnosed with major depression disorder and psychotic features. Although appellant was diagnosed with these severe mental illnesses, she has failed to comply with her psychiatric treatment and medication schedule. The record also reflects drug use during appellant=s pregnancy with C.J. See In re U.P., 105 S.W.3d 222, 231 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (recognizing evidence of drug use is legally sufficient to support that termination is in the child=s best interest). We find that the foregoing evidence sufficiently shows that appellant engaged in conduct endangering the children=s physical and emotional well-being. 2. Acts or Omissions That Indicate the Existing Parent-Child Relationship is Not Proper Evidence of the parent=s past behavior is indicative of the quality of future care that the parent is capable of providing. Pending trial, appellant frequently missed parental visits with her children. Due to her tardiness and absenteeism, appellant=s family visits and medical and psychiatric treatments were cancelled. Appellant exhibited peculiar behavior and neglected her own physical needs. Appellant failed to complete follow-up recommendations by her psychiatrists and drug counselors. See In re J.I.T.P., 99 S.W.3d at 847 (considering parent=s failure to complete counseling services in determining best interest of child); In re M.H., 745 S.W.2d 424, 428 (Tex. App.CHouston [14th Dist.] 1988, no writ) (noting that appellant consistently missed follow-up sessions with children as well as therapy and her own counseling sessions). Although appellant initially took steps toward completing the plan=s requirements, the jury was entitled to consider her violations and the testimony by social workers who agreed that a continued relationship with appellant was not in the children=s best interest. 3. Stability of the Home There is evidence of appellant=s precarious living arrangement. The need for permanence is the paramount consideration for a child=s present and future physical and emotional needs. See Dupree v. Tex. Dept. of Protective & Regulatory Servs., 907 S.W.2d 81, 87 (Tex. App.CDallas 1995, no writ). Appellant admitted that she moved quite frequently, living in three different places in the span of a single year. Appellant testified that she was not yet ready for the children to be returned to her because she was unable to care for the children in a stable environment. We find that there is clear and convincing evidence that appellant=s living arrangement would not provide a stable environment for the children and that the children=s best interest would be served by a more stable environment. See Tex. Fam. Code ' 263.307(b). 4. Physical and Emotional Needs of the Children and Parental Abilities Throughout the termination proceeding, appellant expressed uncertainty about her abilities both as a parent and as a provider of a stable environment. There was testimony from appellant, Longmiles, and Jackson that although they did not want appellant=s rights terminated, appellant was unfit to care for the children. Upon removal, foster care and Jackson noticed developmental delays in children. Initially, C.J. had feeding difficulties and was severely underweight; his health improved significantly once he was placed in foster care. C.M.J.=s motor skills have improved as well since removal. The Department introduced evidence that appellant had a history of domestic violence and drug use. She suffers from severe depression and psychotic features, but refuses to properly treat and care for her mental health. The foregoing is sufficient evidence of appellant=s inability to meet the children=s physical and emotional needs. This evidence supports the jury=s finding that termination of appellant=s parental rights was in the best interest of the children. We conclude that the evidence is legally and factually sufficient to support the trial court=s judgment terminating appellant=s parental rights. We overrule appellant=s third and fourth issues. We affirm the trial court=s judgment. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed July 10, 2008. Panel consists of Chief Justice Hedges and Justice Boyce, and Senior Justice Hudson.* [1] The jury was instructed that termination was proper if at least one of the following grounds were proven by clear and convincing evidence: (1) appellant knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the children=s physical or emotional well-being; (2) appellant engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children; (3) appellant failed to comply with the provision of a court order that specifically established the actions necessary for her to obtain the return of the children, who had been in the temporary managing conservatorship of the Department for not less than nine months; or (4) appellant has a mental or emotional illness or deficiency that renders her unable to provide for the physical, emotional, and mental needs of the children. See Tex. Fam. Code '' 161.001(1), 161.003(a). [2] We note that termination under section 161.003 was an alternate ground for termination. The jury was also instructed that termination was proper under subsections 161.001(1)(D),(E), and (O). Appellant does not challenge the sufficiency of the evidence under subsections 161.001(1)(D),(E), and (O). * Senior Justice J. Harvey Hudson sitting by assignment.