OPINIONThis case involves the termination of the parental rights of the mother and fathers of three children after the trial court had previously denied termination. Appellant Mother of the children and Appellant Father of the two younger children appeal from the trial court’s termination of their parental rights, challenging the sufficiency of the evidence. The father of the oldest child has not appealed.We reverse the trial court’s final order of termination of Mother’s parental rights for the oldest child because the evidence is legally insufficient to prove by clear and convincing evidence that termination is in the child’s best interest, and we render judgment that Mother’s parental rights for the oldest child are not terminated. We affirm the remainder of the trial court’s final order that has been challenged on appeal.I. Standards of Review“Termination of parental rights is traumatic, permanent, and irrevocable.” In re M.S., 115 S.W.3d 534, 549 (Tex. 2003). Termination is a drastic remedy and is of such weight and gravity that due process requires the state to justify termination of the parent-child relationship by clear and convincing evidence. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002). Any significant risk of erroneous termination is unacceptable. In re M.S., 115 S.W.3d at 549. The Supreme Court of Texas “cannot think of a more serious risk of erroneous deprivation of parental rights than when the evidence, though minimally existing, fails to clearly and convincingly establish in favor of [the factfinder's] findings that parental rights should be terminated.” Id.Due to the severity and permanency of the termination of parental rights, the burden of proof is heightened to require clear and convincing evidence. In re L.G.R., 498 S.W.3d 195, 201 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). 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 § 101.007. This heightened burden of proof results in a heightened standard of review when evaluating the sufficiency of the evidence. In re L.G.R., 498 S.W.3d at 202.Under a legal sufficiency review, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume 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, but we do not disregard undisputed facts. Id.Under a factual sufficiency review, we also consider disputed and conflicting evidence. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re A.C., 560 S.W.3d 624, 630-31 (Tex. 2018). “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.” In re J.F.C., 96 S.W.3d at 266.II. Scope of the Record for Sufficiency ReviewIn several issues, Mother contends that this court’s sufficiency review should be confined to certain evidence in the record. Thus, we begin by addressing the scope of the record to be considered in our sufficiency review.A. Judicial Notice of the Clerk’s RecordIn her first issue, Mother contends that the record is limited to the reporter’s record because the trial court did not announce explicitly that it would take judicial notice of the clerk’s record. Mother acknowledges authority adverse to her position from this court. See, e.g., In re K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). She states, “Because this Court has already spoken to this issue, Appellant raises this here to preserve for supreme court review of the due process concerns and split in the courts of appeals.” Because we are bound by this court’s precedent, we overrule Mother’s first issue. See Taylor v. First Cmty. Credit Union, 316 S.W.3d 863, 869 (Tex. App.—Houston [14th Dist.] 2010, no pet.). We presume the trial court took judicial notice of the clerk’s record. See In re K.F., 402 S.W.3d at 504. But we agree with Mother that no factual statements or allegations contained in the clerk’s record, which were not admitted during the final hearing, may be considered evidence when reviewing the sufficiency of the evidence. See id. at 505 (trial court “may not take judicial notice of the truth of factual statements and allegations contained in the documents” in the court’s files).B. Evidence Predating the Trial Court’s Prior Order Denying TerminationIn her second issue, Mother contends that when reviewing the sufficiency of the evidence, this court may only consider evidence of “facts and circumstances that have taken place since February 16, 2016, the date that the trial court denied the Department’s last request to terminate Mother’s parental rights.” For example, she contends that this court may not consider Mother’s criminal history before February 16, 2016.1. Procedural BackgroundIn September 2013, the Department of Family and Protective Services filed its original petition in a suit affecting the parent-child relationship, seeking to terminate the parents’ rights to their children. The trial court held a final hearing in 2015 and ultimately signed a final order on February 16, 2016, denying the Department’s request for termination because the Department failed to prove that termination was in the children’s best interest. The trial court designated the Department as the children’s sole managing conservator while retaining limited possessory conservatorships for the parents.In November 2017, the Department filed a motion to modify the final order, again seeking termination of the parent’s rights. The final hearing on the motion to modify and for termination occurred in August 2018. Mother objected to the trial court’s admission of her judgments of convictions that predated the original final hearing in 2015, and the court overruled her objections. Legal Principles When, as here, the Department seeks termination after a trial court’s prior denial of termination, the trial court may terminate parental rights by following the familiar procedure under Section 161.001 of the Family Code, or the court may terminate parental rights under Section 161.004. See In re A.L.H., 515 S.W.3d 60, 89 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). Section 161.001 provides the typical avenue for termination, when a court may terminate based on findings that (1) the parent committed one or more acts specifically named in the Family Code as grounds for termination, and (2) termination is in the child’s best interest. See In re U.P., 105 S.W.3d 222, 229 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Section 161.004 provides an alternative method for termination following the rendition of an order that previously denied termination if (1) termination is in the child’s best interest, (2) the new petition to terminate was filed after the date of the prior order denying termination; (3) the parent committed an act listed under Section 161.001 before the date of the prior order denying termination; and (4) the circumstances of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date of the order. Tex. Fam. Code § 161.004(a). At a hearing under this section, “the court may consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child.” Tex. Fam. Code § 161.004(b). Scope of Record for Sufficiency Analysis Includes Evidence Predating Prior Order In this case, the Department asked for termination based on both Sections 161.001 and 161.004, and the trial court made findings related to both statutes. It is clear from the arguments presented to the trial court and on appeal that theDepartment was relying on Mother’s conduct occurring both before and after the February 16, 2016 order denying termination. Mother contends that the Department “can’t have it both ways” and rely on evidence from both before and after the order.We disagree with Mother’s contention. Section 161.004 does not state that the trial court may not rely on evidence of acts listed in Section 161.001 occurring both before and after the prior order of termination. Nor does Section 161.004 state that the trial court’s best interest analysis is limited to evaluating evidence of facts and circumstances occurring after the trial court’s prior order. On the contrary, the statute allows the trial court to consider evidence presented at a previous hearing. See Tex. Fam Code § 161.004(b).The Fort Worth Court of Appeals evaluated the text of the statute, its history, and public policy to address the question of whether Section 161.004 was the “exclusive means to terminate a parent’s rights after denial of a prior termination or just a means to admit evidence from a prior termination trial.” In re K.G., 350 S.W.3d 338, 345-52 (Tex. App.—Fort Worth 2012, pet. denied). The court reasoned that the statute was a means to admit evidence from a prior termination hearing, and the court held that the trial court erred by admitting such evidence because the Department did not plead Section 161.004 as a ground for termination. See id. at 352. This court similarly held in In re A.L.H. that Section 161.004 provides only one of several avenues for termination of parental rights. See 515 S.W.3d at 89. Accordingly, Mother’s second issue is overruled. In evaluating the sufficiency of the evidence regarding the best interests of the children and regarding Mother’s conduct in violation of Section 161.001, we will consider evidence presented before and after the trial court signed is prior order denying termination.4. Sufficient Evidence of Material and Substantial ChangeIn her eighth issue, Mother contends that there is legally and factually insufficient evidence of a material and substantial change. Mother does not request any specific relief under this issue, cite to any legal authority, or analyze the evidence under any particular standard of review. Accordingly, it is unclear whether Mother’s eighth issue directly attacks the final order or is intended to affect the scope of review of her other sufficiency points. See In re D.N., 405 S.W.3d 863, 870 (Tex. App.—Amarillo 2013, no pet.) (“[T]o rely on acts or omissions evidence of which has been presented to the trial court prior to the earlier order denying termination, the Department must garner sufficient evidence of section 161.004′s elements, including a material and substantial change of the parties’ circumstances.”). We assume without deciding that the Department was required to prove a material and substantial change to rely on evidence of acts or omissions occurring before the trial court’s prior order. See id. at 869-70. Because we ultimately consider evidence of acts and omissions occurring before the date of the trial court’s prior order when evaluating the sufficiency of the evidence to prove the children’s best interest and the predicate ground for termination, we will review the sufficiency of the evidence to support the trial court’s finding of a material and substantial change in circumstances.“[T]here are no definite guidelines as to what constitutes a ‘material and substantial change in circumstances’ to terminate parental rights under section 161.004.” In re A.L.H., 515 S.W.3d at 89. By way of example, this court has determined that a material and substantial change existed when the parent was adjudicated guilty of a crime and sentenced to prison after the prior order, see In re C.A.C., No. 14-12-00396-CV, 2012 WL 4465234, at *9 (Tex. App.—Houston [14th Dist.] Sept. 27, 2012, no pet.) (mem. op.), and when a parent failed to complete a family service plan by failing to visit the child and attend medical appointments, see In re M.J.W., No. 14-16-00276-CV, 2016 WL 4206046, at *8 (Tex. App.—Houston [14th Dist.] Aug. 9, 2016, pet. denied) (mem. op.).It is undisputed in this case that Mother signed a family service plan directing her to refrain from criminal activity, and she subsequently committed a state jail felony theft for which she was placed on community supervision. Then she pleaded guilty to another state jail felony theft, and her community supervision was revoked. In each case, she was sentenced to 180 days in state jail to run concurrently. She was incarcerated at the time of the final hearing. When she was arrested, she failed to attend a supervised meeting with her children or provide advanced notice of her absence as required by the family service plan.Mother’s failures to comply with the family service plan and her incarceration for state jail felonies support the trial court’s finding by clear and convincing evidence that there was a material and substantial change under Section 161.004. See id.; In re C.A.C., 2012 WL 4465234, at *9-10.Mother’s eighth issue is overruled.III. Best Interest of the ChildrenUnder both avenues for termination pleaded by the Department and found by the trial court in this case, the Department had the burden to prove by clear and convincing evidence that termination was in each child’s best interest. See Tex. Fam. Code §§ 161.001(b)(2), 161.004(a)(4). In her third issue, Mother challenges the legal and factual sufficiency of the evidence to support the trial court’s best- interest finding for each of the three children. In his sole issue on appeal, Father challenges the factual sufficiency of the evidence to support the trial court’s best- interest finding for the two younger children. Legal Principles The purpose of the State’s intervention in the parent-child relationship is to protect the best interests of the children, not to punish parents for their conduct. In re A.V., 113 S.W.3d 355, 361 (Tex. 2003). There is a strong presumption that the best interest of a child is served by preserving the parent-child relationship. In re B.J.C., 495 S.W.3d 29, 35 (Tex. App.—Houston [14th Dist.] 2016, no pet.).In assessing whether the evidence is sufficient to prove that termination is in the best interest of a child, we may consider the non-exclusive factors discussed in Holley v. Adams, 544 S.W.2d 367, 371-72 (1976). See In re E.C.R., 402 S.W.3d 239, 249 & n.9 (Tex. 2013). These factors include (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions. Id. (citing Holley, 544 S.W.2d at 371-72). We also consider the statutory factors in Section 263.307 of the Family Code, including the child’s age and vulnerabilities. See In re A.R.M., No 14-13-01039-CV, 2014 WL 1390285, at *9 (Tex. App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (citing Tex. Fam. Code § 263.307(b)).The best-interest analysis is child-centered and focuses on the child’s well- being, safety, and development. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). A child’s need for permanence through the establishment of a stable, permanent home is the paramount consideration in a best-interest determination. In re B.J.C., 495 S.W.3d at 39.B. EvidenceAt the time of the final hearing in August 2018, Mother had three children, and the two younger children were also Father’s. The oldest child, F.M.E.A.F (Fanny), was sixteen at the time of the final hearing. The two younger children, A.A.F.H. (Abigail) and A.J.F.H. (Adam), were ten and seven respectively.[1]1. MotherMother is bipolar and has a history of not being properly medicated. When she is not properly medicated, she is unstable. In July 2013, Mother had a “mental breakdown” following the death of her twin babies shortly after their births. While Mother was visiting in Dallas, she threatened suicide in her children’s presence by breaking a pair of sunglasses and threatening to slit her wrists. Mother was held in a psychiatric hospital for a week and a half while the Department took emergency custody of the children.Mother has an extensive criminal history for thefts, trespassing, and resisting arrest, as reflected by judgments of convictions admitted at the final hearing:OffenseOffense DateConviction DateSentenceTheft
