Affirmed and Opinion Filed June 21, 2016 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-16-00232-CV IN THE INTEREST OF T.W., A CHILD On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-15-00889 

### MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Myers Opinion by Justice Francis T.G.W. (Mother) and J.L.W. (Father) appeal the trial court’s decree terminating their parental rights to their daughter, T.W. In separa te briefs, Mother and Father challenge the legal and factual sufficiency of the evidence to support the decision to terminate their parental rights and to appoint the Texas Department of Family and Protective Services as permanent managing conservator. For reasons set out below, we affirm. The trial court conducted a bench trial to de termine whether appell ants’ parental rights should be terminated. Neither Mother nor Father a ppeared at trial. The evidence showed that in 2014, both were involved in a pare ntal termination case regardin g their four children, all of whom were in CPS custody. 1 The case, which was “proceeding towards termination,” involved

1 Father was the biological father to three of the children; all of the child ren were born to Mother.–2– allegations of domestic violence and substance abuse, and record s showed appellants would not cooperate in the investigation. While the case was pending, the Department le arned Mother was pre gnant. A baby girl, T.W., was born in September 2014. Over the next several months, Departme nt caseworkers tried numerous times to contact the family by phone a nd visits but could not confirm where T.W. was living and whether she was safe. At one poin t, a caseworker saw Mother outside of the courthouse during a hearing involving her other children. Mother gave the worker an address the Department had previously confirmed was a P.O. Box mailing center. When the worker reached Father by telephone, he refused to divulge the family’s address, come to CPS offices, or participate in any services offered. Because of concerns for T.W.’s safety and the parents’ lack of cooperation, in January 2015, the Department filed a “First Amended Pe tition for Investigati on of Child Abuse or Neglect, for Order to Participate in Services, and for Release of Information and Records.” Although the Department believed T.W. lived w ith Mother, Father, or both, they could not confirm T.W.’s residence or that it was safe. An affidavit was attached to the petition detailing the Department’s efforts in attempting to locate appellants and T.W. over many months as well as appellants’ prior CPS histor y, which included allegations th at Father had been physically violent with Mother and the other children and that one child tested positive for marijuana at birth. A hearing on the petition was scheduled for Fe bruary 11. By this time, appellants’ parental rights to their other children had b een terminated. Stephon Frazier, the Department investigator assigned supervisor, testified he spoke with Mother the day before the hearing, explained why the Department believed the family was not being cooperativ e, and talked to her about being present in court to de termine what further steps needed to be taken. Nonetheless,–3– Mother was at least two hours late to the hearing. Frazier said he also spoke to Father, who kept referring back to hearings regard ing the other children and was reluctant to participate in services regarding T.W. Following the hearing, the trial court ordered appellants to make T.W. and her residence available to the Department for insp ection. In addition, Mother and Father were ordered to undergo psychological and psychiatric evaluations thr ough a CPS provider; submit to random urinalysis and hair strand drug testing within twenty-four hours of the Department’s request; complete parenting cla sses; sign releases for information regarding the health and mental health records of Mother and child, Fath er’s military records, and marriage/counseling; and undergo individual counseling on domestic vi olence and, with respect to Father, anger management. The order warned that failure to participate in the court- ordered services could result in T.W.’s removal under chapter 262. A re view hearing was schedul ed two weeks later. After the OTP hearing, Mother took T.W. to the CPS’s offices so that workers could look her over. Also, a caseworker in spected Mother’s residence, noting that it was clean but was devoid of any furniture except a crib. Additionall y, the Department pr ovided addresses and phone numbers to appellants to start counseling. On the day of the review hearing, the trial court reset the matter until March so that appellants could obtain legal counsel. But the cour t ordered appellants to start their services and ordered the Department to conduct a minimum of three unannounced visits to the residence where T.W. was available, incl uding that of any childcare pr ovider who had possession. Over the next two weeks, the caseworker tried on three different occasions to vi sit Mother’s residence but no one answered so she left her contact in formation on the door. And although Mother gave the name of the child care provider, she but did not give an address. When the parties returned to court in Ma rch, Frazier said a ppellants had begun or completed “close to none” of th e court-ordered services, and the Department was concerned–4– about “ongoing domestic violence” and appellants’ lack of cooperation. By that time, Frazier explained, appellants’ rights had been terminated to their other four childre n because of domestic violence, Mother had been diagnosed as bipola r but was not taking her medications, and Father was “known to be a perpetrator of family violen ce,” all of which could put T.W. in immediate danger. Although it was unclear whether Father was living in the home with Mother, the Department had concerns that Mother was “una ble to be protective” because she allowed the child to be around Father. And desp ite its efforts, the Department ha d not been able to verify the whereabouts of the child or whethe r she was in a safe location. The Department asked to be named temporary managing conservator of T.W. w ith intent to place the child in foster care. The trial court ordered the child removed from appellants’ custody, but Mother refused to disclose T.W.’s whereabouts. It was only after th e trial court ordered Mother taken into custody that she revealed the child’s location. T.W. was placed in foster care that day. Appellants were given caregiver resource forms to id entify relatives or close friends to care for T.W. Both listed Father as well as two relatives that lived in California. The next day, the Department filed its orig inal petition for protection of a child, for conservatorship and for termination in the suit affecting parent-child relationship. Following a hearing two weeks later, the trial court sign ed temporary orders naming the Department temporary managing conservator of T.W. and agai n set out the services appellants needed to complete. At trial, Frazier acknowledged there we re no “new allegations” of domestic violence between appellants from the time T.W. was born until her removal in March. Nikisha Anderson, a caseworker, created the service plans that reflecte d the court-ordered services appellants needed to complete for re unification to occur. According to Anderson, Father did not complete any of the services, did not ask for any visitation with T.W., or attend–5– any court hearings, except one, wh ile she was assigned to the case. Anderson said Father told her he traveled in his job as a truck driver and would not be in town to do any services. Anderson testified Mother also did not complete all the services ordered. Mother started some of the services and completed the psycho logical evaluation and tw o drug tests, both of which were negative. But she did not, for exam ple, complete counseling. Shortly before the termination trial, the Department learned Mother had moved to Atlanta, Ge orgia. According to Anderson, Mother did not notify th e Department of her move nor had she made arrangements for an alternative services lo cation. In fact, at the time of trial, Mother had not had any visits with T.W. in at least three to four months. Anderson testified the Department did not have a current address for either parent and thus had no address to return T.W. if ordered. Betty Cannon, a contract therapist with the De partment, explained Mother was referred to her for counseling on domestic violence. Mo ther met with Cannon in fifteen sessions and consistently denied the existence of domestic vi olence, even when confronted with statements from persons outside of the Department and her own statem ent to the police. Cannon said that in her sessions, Mother wa s not focused on T.W., but was focused on her frustrations with the Department and its opening of the new case involving T.W. Cannon said Mother provided inconsistent information about the status of her relationship with Father. On one hand, she would tell Cannon they were divorced or divorcing, primarily because Mother believed she could regain custody only if she se parated from Father. On the other, Mother admitted her long-term goal was to regain custody of T.W. and reunite with Father. Cannon last saw Mother in September 2015, and Mother told her she was going to the East Coast for job training. A w eek later, Mother calle d and said she was still out of town and might not be back until the following week. She next heard from Mother in November when Mother called, said she was living in Atlanta, Ge orgia, did not plan on re turning to Dallas, and–6– wanted to do counseling by telephone. Cannon declined. Because Mother failed to complete her counseling, Cannon unsuccessfully discharged her. Cannon testified she had concerns about Mother’s ability to parent T.W. independently as well as her ability to protect T.W. from domestic violence situations, given her “state of denial.” Cannon explained that a parent cannot protect a child if she does not recognize the problem. Myrna Dartson, a licensed psychologist, testif ied she assessed Mother’s intellectual, emotional, academic, and personality functioni ng. Like Cannon, Dartson was concerned with the conflicting information regarding domestic vi olence. Mother told Dartson there was no domestic violence in her relationship with Fath er and that she had on ce falsely reported an incident to the police because she was angry. But a CPS affidavit, provided to Dartson, recounted Father’s abuse of Mother. In one specific incident, Father kneed Mother in her abdomen, kicked her in the vaginal area, and pulled a knife on her in the presence of their children, all while Mo ther was pregnant. Additionally, Dartson explained th at in one of her tests, sh e had Mother draw a full-body picture of herself. Mother drew a picture w ith her hands behind her b ack, which Dartson said suggested Mother is “secretive” and “not willing to discuss an issue or discuss certain information.” Dartson believed Mother was no t forthcoming about domestic violence or drug abuse, both of which she said would prevent Mo ther from providing the best possible care to T.W. and would place her at “continued risk for neglect and/or abuse.” Finally, T.W.’s foster mother testified she has one biological child, two adopted children, and two in adoptive placement. T.W. was five months old when she was placed with her family and was sixteen months old at the time of trial. During those eleven mont hs, Foster Mother said Father saw T.W. twice early on, and Mother ha d not seen her since September 2015, which was four months before trial. Foster Mother said T.W. was “very bonded” with her family and went–7– on vacations with them. T.W. we nt to daycare, had no medical n eeds, and was current on all of her shots. All of her needs were being met, in cluding clothing and a home. Foster Mother said she and her husband can care for T.W. in the long term, including adoption if available. Foster Mother recounted her fi rst meeting with Mother. Foster Mother was at Target with her children when Mother suddenly appro ached her and asked to “see her baby.” Foster Mother was “kind of taken aback ” and agreed. Mother began huggi ng and kissing T.W. Foster Mother said the encounter was “awkward” and not “coincidental.” Mother said she knew who Foster Mother was because she had previously observed her at church, although Mother did not attend the same church. A few days after the enc ounter at Target, Foster Mother saw Mother at T.W.’s birthday party. Mother acted as if they had never met and then asked Foster Mother not to tell the Department about the earlier encounter. Foster Mother said Mother was loving toward T.W. at the party and in teracted appropriately. At the conclusion of the ev idence, the trial court found clear and convincing evidence that Mother and Father had committed multiple predicate grounds to warrant terminating their parental rights and that termination was in T.W.’s best interest. The court appointed the Department permanent managing conservator of T. W. Both appellants separately appealed. Under the Texas Family Code, pa rental rights can be terminat ed only when there is clear and convincing evidence that the parent has committed an act prohibited by section 161.001(b)(1) and termination is in the best interest of the child. T EX
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. § 161.001(b)(1),(2) (West Supp. 2015). “Clear and c onvincing evidence” is “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.” Id . § 101.007 (West 2014). In a legal sufficiency challenge, we credit evidence that supports the verdict if a reasonable factfinder could have done so and disregard contrary evidence unless reasonable–8– jurors could not have done so. In re K.M.L. , 443 S.W.3d 101, 112 (Tex. 2014). However, we should not disregard undisputed facts that do not support the verdict to determine whether there is clear and convincing evidence. Id . Even evidence that does more than raise surmise or suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true. Id . If we determine that no reasona ble factfinder could form a firm belief or conviction that the matter to be proven is true, then we must conclude the evidence is legally insufficient. Id

. In a factual sufficiency review, we must give due consideration to any evidence the factfinder could reasonably have found to be clear and convincing. In re J.F.C. , 96 S.W.3d 256, 265–66 (Tex. 2002) (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We must consider the disputed evidence and determine whether a reas onable factfinder could have resolved that evidence in favor of the finding. Id . If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, th en the evidence is factually insufficient. Id

. We begin with appellants’ challenges to the pr edicate grounds. In her first three issues, Mother argues the evidence is legally and fact ually insufficient to s upport the trial court’s findings that she violated subsections (B), (M ), and (O). Only one predicate finding under section 161.001(b) is necessary to support a judgment of termination when there is also a finding that termination is in th e child’s best interest. In re A.V. , 113 S.W.3d 355, 362 (Tex. 2003). We begin with subsection (O). Section 161.001(b)(1)(O) provides for termina tion when a parent has failed to comply with the provisions of a court or der that specifically established the actions necessary for the parent to obtain the return of the child who ha s been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the child’s removal–9– from the parent under Chapter 262 for the abuse and neglect of the child. T EX
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. § 161.001(b)(1)(O) (West Supp. 2015). Mother first argues there is no evidence that T.W.’s removal was due to abuse or neglect as required by the statute. She contends the evidence show s only that she was uncooperative with the Department. Further, she asserts that when the Department visited her home, there was a crib for the baby and Father was not living there. To comply with subsection (O), the Departme nt did not have to prove actual abuse or neglect of T.W.; rather, the term s “abuse or neglect” as used in the statute “necessarily includes the risks or threats of the environm ent in which the child is placed.” In re E.C.R. , 402 S.W.3d 239, 248 (Tex. 2013). A parent’s history with other children is a factor in considering the risks or threats of the environment. In re K.N.D. , 424 S.W.3d 8, 10 (Tex. 2014) (per curiam). As the supreme court said in E.C.R. , “Part of [the] calculus includes the harm suffered or the danger faced by other children under the parent’s care.” Id . (quoting In re E.CR. , 402 S.W.3d at 248). The affidavit attached to the petition for invest igation of child abuse or neglect as well as the later petition for protection, conservatorship, and te rmination stated the Department received a referral on August 28, 2014 for ne glectful supervision. At that time, the Department did not know T.W. had not yet been born a nd began its investiga tion as required by stat ute. At the time of the referral, appellants were under invest igation for their conduct regarding four other children, and that case was “proceeding towards te rmination.” In that case, Father was accused of domestic violence against Mother and the children, and Mother was accused of substance abuse after the youngest child tested positive for ma rijuana at birth. Given these allegations, the Department was understandably concerned about the risks to a newborn baby. Ultimately, the Department learned T.W. was born in September. The affidavit detailed the Department’s many efforts to try to contact appellants, over a period of months, so that they co uld ascertain that T.W.–10– was safe. Appellants, however, would not cooperate. Given th e open CPS case involving the other children, the al legations involved, and appe llants’ refusal to cooperate with the Department in locating T.W. to ensure she was safe, we co nclude the evidence was sufficient to show that T.W. was at “substantial ri sk” of abuse or neglect. Mother next asserts the evidence is insuffici ent to show she failed to comply with the provisions of the court order that established the actions necessary to obtain T.W.’s return. She argues the evidence showed that she “work[ed] he r services” and “kept in communication” with her counselor, even after she moved. Under her service plan, Mother was required to complete co unseling, which was directed at the issue of domestic violence. Mother counseled with Cannon unt il September 2015, when Mother left town and did not retu rn. At that point, she had not completed the service. A few months later, she contacted Cannon about couns eling by telephone, but Cannon declined. As a result of Mother’s failing to complete the couns eling, Cannon unsuccessfully discharged her. So while the evidence showed Mother completed so me services, she did not comply with the counseling requirement. Viewing the evidence in the light most favorab le to the finding, and viewing the record as a whole, we conclude a reasonable factfinder could have formed a firm conviction or belief that Mother failed to comply with her service plan. We overrule the third issue. Having concluded there is legally an d factually sufficient evidence to support the evidence as to subsection (O), we need not address the othe r two grounds found by the trial

court. In his first issue, Father argues the evidence is legally and factually insufficient to support a finding under subsection (M), which allows termina tion of parental rights if the parent has had his rights terminated with respect to another child based on a finding under subsections (D) or–11– (E). He argues the judgment in the prior case was on appeal at th e time of trial a nd therefore was not “final.” See T EX
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. § 161.001(b)(1)(M) (West Supp. 2015). We need not address Father’s complaint becau se the record shows that in addition to subsection (M), the trial court also made findings that Father viol ated subsections (B), (C), and (O). Father has not challenged the sufficiency of the evidence to support these grounds and has thus waived any complaint th at the evidence is insuffici ent to support these findings. Toliver v. Tex. Dep’t of Family & Protective Servs. , 217 S.W.3d 85, 102–03 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Because only one predicate finding under section 161.001(b)(1) is necessary to support termination and each of the unchallenged findings is sufficient to justify termination, we need not address Father’s first issue related solely to a finding under section 161.001(b)(1)(M). See id . We overrule hi s first issue. In Mother’s fourth issue a nd Father’s second issue, they each challenge the legal and factual sufficiency of the evid ence to support the trial court’s finding that termination was in T.W.’s best interest. Before a trial court may order termination of parental rights, it must find by clear and convincing evidence that termination is in the child’s best interest. See T EX
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. § 161.001(b)(2). There is a presumption that the be st interest of the child will be served by keeping the child with a parent. In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). In determining whether termination was in the child’s best interest, we may consider several factors, including (1) the child’s desires, (2) the emotional and phys ical needs of the child and the emotional and physical dang er to the child now and in the fu ture, (3) the parental abilities of the individuals seeking custody, (4) the pl ans for the child by those individuals and the stability of the home, (5) the plans for the child by the agency seeking custody and the stability of the proposed placement, and (6) the acts or om issions of the parent which may indicate the–12– existing parent-child relationship is not a proper one, and (9) any ex cuse for the acts or omission of the parent. Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep’t of Pr otective & Regulatory Servs. , 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). These factors are not exhaustive; some listed factors may not apply to some cases, while other fa ctors not on the list may also be considered when appropriate. In re C.H. , 89 S.W.3d at 27. Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the child’s best interest. Id. Conversely, scant evidence relevant to each Holley factor will not support such a finding. Id

. The burden of proof is upon th e party seeking terminati on of parental rights. In re J.F.C. , 96 S.W.3d at 265–66. Beginning with the emotional and physical needs of the child and the emotional and physical danger to the child now and in the fu ture, the evidence shows T.W. was born while her parents were under investigation in a separate case involving her f our siblings. In that case, Father was alleged to have physically abused Mo ther and the children, and appellants’ rights to those children were terminated during the pendency of this case. While there was no evidence of domestic abuse while T.W. was in the custody of appellants, th e evidence suggested there was a substantial risk of reoccurren ce. Both Cannon and Dartson testified they were concerned because Mother denied the existence of domestic violence in the home, even when confronted with reports by third parties and her own statemen t to the police. In fact, Mother admitted to Cannon that her plan was to rega in custody of T.W. and reunite with Father. As Dartson testified, because of Mother’s unwillingness to acknowledge domestic violence, she was likely to continue to make decisions th at would place T.W. at risk.–13– As for the parental abilities of appellants, their plans for the child, and the stability of the home, the record shows Mother has not provided a stable home for T.W, established any kind of support system, or even maintained contact with T.W. When the Department was finally able to inspect her residence, it was devoid of all furn iture except a crib. And although the evidence showed Mother was employed, there is no eviden ce that she ever provided any financial support for T.W.’s care. More importantly, she left th e state during the middle of this case, stopped her counseling sessions, and st opped visiting with T.W. As for Father, he had not seen T.W. since shortly after her removal. The trial court found, and he does not dispute, that he aband oned her without providing any of her financial support. His lack of determination or desire with respect to T.W. is evidenced by the fact that (1) he stopped visiting her in March 2015, (2) stopped attending any of the court hearings, and (3) did not complete even one of the court-ordere d services necessary for her return. More importantly, his parental rights were terminated to his other children due to domestic violence. As for the plans for the child by the agen cy seeking custody and the stability of the proposed placement, the record shows T.W. has been in the same foster ho me since she was five months old and was sixteen months old at tria l. T.W. obviously is too young to express any desires, but the evidence showed she is “very bonde d” with her foster family, is well cared for by them, and had not seen Mother in months and had not seen Father since shortly after her removal. Foster Mother testified she cares for all of T.W.’s needs, and she and her husband are willing to continue to do so in the long term, including adoption if it were an available option. Finally, considering acts or omissions or excu ses, appellants failed to cooperate with the Department from the beginning. They gave the De partment erroneous addre sses in an effort to hide T.W. and, in fact, Mother was taken into custody at one point when she refused to tell the Court the child’s location. While T.W. was in fost er care, Mother tracked down the foster family–14– and apparently spied on them at church before later approaching Foster Mother at a Target. Then, she asked Foster Mother not to disclose th e encounter to the Department. And, we cannot ignore the fact that neither Mother nor Father appeared at trial. Viewing this evidence in the light most fa vorable to the finding, and viewing the record as a whole, we conclude a reasonable fact finde r could have formed a firm conviction or belief that termination of Mother’s rights was in T.W.’s best interest. We ove rrule the fourth issue. In Mother’s fifth issue and Father’s third issue, they challenge the legal and factual sufficiency of the evidence to support appointmen t of the Department as managing conservator. Both recognize such a challenge is relevant in the event this Court reverses the trial court’s decision to terminate. We have previously addressed this exact challenge under similar circumstances. See In re N.T. , 474 S.W.3d 465, 481 (Tex. App.—Dallas 2015, no pet.). As in N.T., we have overruled all challe nges to the decision to terminate. For the same reasons expressed in N.T. , we conclude this issue is without mer it. We overrule Mother’s fifth issue and Father’s third issue. We affirm the trial court’s decree of termination.

160232F.P05 /Molly Francis/ MOLLY FRANCIS JUSTICE–15– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF T.W., A CHILD, No. 05-16-00232-CV On Appeal from the 256th Judicial District Court, Dallas County, Texas Trial Court Cause No. DF-15-00889. Opinion delivered by Justice Francis; Justices Lang-Miers and Myers participating. In accordance with this Court’s opinion of this date, the trial court’s decree of termination is AFFIRMED

. It is ORDERED that all parties bear their own costs of this appeal.
Judgment entered June 21, 2016.