in the Interest of E.B., a Child ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00205-CV
___________________________
IN THE INTEREST OF E.B., A CHILD
On Appeal from the 89th District Court
Wichita County, Texas
Trial Court No. DC89-CP2021-0066
Before Birdwell, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant T.C. (Mother) appeals the trial court’s order terminating her parental
rights to her child, E.B. In three issues, Mother argues that the evidence is legally and
factually insufficient to support the termination of her parental rights under Texas
Family Code Subsections 161.001(b)(1)(N) and (O) and that the evidence is legally
and factually insufficient to support the trial court’s finding that termination of
Mother’s parental rights is in E.B.’s best interest. We will affirm the trial court’s order
terminating Mother’s parental rights to E.B.
I. Background
On December 29, 2020—two days after E.B. was born—the Texas
Department of Family and Protective Services (TDFPS) received a report that Mother
had given birth to a child and had reported using marijuana and methamphetamine
during the pregnancy. TDFPS opened an investigation and ultimately filed a petition
seeking removal of E.B. from Mother’s care and termination of Mother’s parental
rights. E.B. was removed on January 11, 2021. K.B., who was later adjudicated as the
father of E.B., was found deceased in his home the same day.
After a bench trial before an associate judge, Mother’s parental rights were
terminated based on findings that Mother had constructively abandoned E.B., that
Mother had failed to comply with her service plan, and that termination of Mother’s
parental rights is in E.B.’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(N),
2
(O), (b)(2).1 Mother then requested a de novo hearing, and the findings of the
associate judge were approved and adopted.2 This appeal followed.
A. TDFPS’s Investigation
During its investigation, TDFPS developed concerns related to Mother’s illegal
drug use, Mother’s mental health, Mother’s criminal history and imminent
incarceration, K.B.’s passivity toward Mother’s behavior, and Mother’s overall
inability to care for E.B.
1. Mother’s Drug Use
Despite admitting to using illegal drugs while she was pregnant with E.B.,
Mother refused to submit to a drug test after delivering E.B. at the hospital. TDFPS
later met with Mother at the hospital where E.B. was born, and Mother eventually
agreed to submit to a drug test the following day, on December 30, 2020. Mother did
not show up for her drug test that day.
Approximately one week after E.B. was born, Mother admitted to TDFPS that
she did not submit to a drug test when E.B. was born because she knew the test
results would be positive for methamphetamines. Mother then divulged that she had
used methamphetamines just two days earlier—sometime around January 4, 2021.
TDFPS abandoned all grounds for termination raised in its petition except for
1
Subsections 161.001(b)(1)(N) and (O).
Mother did not “wish to testify” at the de novo hearing and rested without
2
presenting any evidence.
3
The very next day, Mother admitted that she had used methamphetamines the night
before.
Around the same time, Mother called TDFPS and asked why she had not been
informed that E.B. had died. But E.B. was fine. Mother exhibited “erratic” behavior,
and according to a TDFPS investigator, Mother was not making any sense. Mother’s
probation officer later reported that, although Mother was supposed to check in with
him weekly, he had not seen her in approximately three months. He also relayed that
Mother’s drug-test results from September 2020 were negative but that she had not
submitted to drug testing since then.
When E.B. was approximately one week old, K.B. reported concerns to the
TDFPS investigator that Mother was using methamphetamines and that he did not
want to communicate with her while she was “like that.” During TDFPS’s
investigation, K.B. and his mother agreed to care for E.B. and to keep Mother away
from E.B. E.B. remained in K.B.’s possession until January 11, 2021, when K.B. was
found deceased in his home and E.B. was removed by TDFPS. Local law
enforcement made TDFPS aware of K.B.’s death, and a TDFPS investigator
immediately responded to the residence. Despite K.B.’s assurance that he would not
allow any contact between Mother and E.B., there was evidence that Mother had also
been staying at the residence with E.B. When the TDFPS investigator arrived at the
home, Mother was present and appeared to be under the influence of illegal drugs.
Specifically, she could not spell her name, she repeatedly crawled back into bed while
4
being questioned by law enforcement, and she was “very erratic.” Mother admitted to
using marijuana with K.B. the night before but did not respond when questioned
about methamphetamine use. Further, Mother was unable to provide TDFPS with
any appropriate caregivers for E.B. at that time.
2. Mother’s Criminal History
When TDFPS first met with Mother at the hospital where E.B. was born,
Mother told TDFPS that she had a history of domestic violence with her ex-boyfriend
and that she had been arrested “a few times” for assault. Mother then admitted that
she violated probation when she was arrested for possession of marijuana and had
been ordered to go to an Intermediate Sanction Facility (ISF) for ninety days,
beginning January 25, 2021.
TDFPS also discovered that Mother’s criminal history consisted of several
charges and convictions for assault- and drug-related offenses, including bodily-injury
assaults, family-member assaults, aggravated assault, aggravated assault with a deadly
weapon, and possession of marijuana.
B. Mother’s Service Plan
With the goal of family reunification, a family plan of service was prepared for
Mother on February 8, 2021, with a target completion date of February 7, 2022.
Mother did not participate in her service plan meeting but was later provided a copy
of the service plan to review with her case worker during an in-person meeting.
Mother also signed receipt of her service plan while she was incarcerated on
5
March 11, 2021, which was filed with the trial court. Mother’s required services
included parenting classes, individual counseling, a psychological evaluation, and the
completion of a drug assessment. She was also ordered to complete substance abuse
counseling, to attend NA/AA meetings, to participate in random drug screens, to
attend weekly visitations with E.B. once she was no longer incarcerated, and to
provide proof of income and proof of a safe and stable home environment. Mother
did not complete any of these services. At the time of trial, Mother had not started
any services.
Mother was incarcerated from approximately January 2021 until November
2021. During that time, Mother returned one parenting packet in September 2021 and
maintained contact with her initial case worker via mail. She also reported to TDFPS
that she had attended “daily group and therapy classes” while incarcerated. At trial,
2INgage case manager Stephanie Pickrell 3 testified on behalf of TDFPS. Pickrell
acknowledged that when a parent is incarcerated, it is more difficult for that parent to
complete their services. Specifically, the parent’s ability to complete psychological
services, to attend individual counseling or substance abuse counseling, to complete a
drug assessment, to obtain stable income or housing, and to have visitations with the
child is limited while the parent is incarcerated. However, Mother chose not to
participate in any services when she was released from incarceration. After her release
Pickrell was assigned to Mother’s case around September 2021 or October
3
2021.
6
in November 2021, Mother’s contact with 2INgage was inconsistent and sporadic.
Pickrell testified that Mother maintained very little contact with her, despite her
attempts to contact Mother at least nine times in November 2021 and at least seven
times in December 2021. And when Mother would occasionally contact Pickrell, she
asked only about visitations with E.B.
Mother’s behavior also changed after she was released, and her interest in E.B.
was inconsistent. On November 1, 2021, the trial court signed an Order for
Mediation, which was scheduled to occur after Mother’s release. Although she was no
longer incarcerated on the date of the mediation and was required to attend, Mother
did not attend the mediation. On November 17, 2021, Pickrell went to the address
listed as Mother’s residence to discuss Mother’s service plan with her. Mother was late
for the meeting. When Pickrell handed Mother a copy of the service plan, Mother
handed it back and stated, “I don’t want to be [E.B.’s] mother. I don’t want my
daughter; I don’t need this.” Confused, Pickrell asked Mother why she had changed
her mind so quickly. Mother responded, “I can’t be the mom she needs; I can barely
keep myself alive. I have no home, no income, and I don’t know how to be a mom. I
love her, but . . . I’m a kid myself. I am not on my medication.” Mother also told
Pickrell that she had “superpowers” and “telekinesis” and that she could “move
things with [her] mind.” But moments later, Mother asked Pickrell for a visitation
with E.B.; she did not follow up with Pickrell the next day regarding the visitation.
7
A few weeks later, Mother reached out to Pickrell to ask why she had not been
able to visit E.B. yet. Pickrell agreed to set up a visitation with E.B. if Mother would
first submit to a drug test. Mother agreed to the drug test, and Pickrell arranged for
Mother to go to the drug-testing site. Mother no-called, no-showed for that
appointment. Pickrell then attempted to set up another appointment for Mother on
December 6, 2021, but Mother again did not show up for the appointment or
otherwise respond to Pickrell’s phone calls or text messages.4 Pickrell testified that she
did not have further contact with Mother after December 6, 2021.
Mother never attended any visitations with E.B. Prior to Mother’s
incarceration, a visitation via Zoom between Mother and E.B. had been scheduled.5
Mother went to the 2INgage office for the visitation but refused to join the Zoom call
because she believed she would be “trapped” in the call and sent to the past or the
future. This was the only visitation ever scheduled with E.B. Moreover, Pickrell
testified that after Mother’s release, Mother asserted—approximately five to ten
times—that she did not want to be E.B.’s mother and that she did not want to work
her services. Pickrell confirmed that Mother had never started any services.
4
Pickrell testified that Mother had asked about visitations with E.B. on several
occasions, and each time Pickrell would agree to arrange a visitation if Mother would
submit to a drug test. Pickrell even offered Mother transportation to the drug-testing
location. However, Mother would not follow through with her appointments, and she
never submitted to a drug test.
5
E.B. had tested positive for Covid-19 and had to quarantine with her foster
parents in their home.
8
C. After Removal
At the time of trial, E.B. had been in the care of a foster-to-adopt family for
almost her entire life. E.B.’s foster parents expressed that they wanted to adopt E.B.
and that they were licensed to move forward with the adoption. Pickrell testified that
E.B.’s placement with her foster family had been a “good environment” for E.B., who
was very comfortable in her foster family’s home and who had bonded with the
family. She expressed that she did not have any concerns regarding E.B.’s emotional
or physical well-being in her placement and that E.B. was an “extremely happy baby.”
E.B.’s foster father testified that E.B. had been in his family’s care since E.B.
was just two weeks old and that Mother had never visited E.B. He and his wife, on
the other hand, loved E.B. and were very interested in adopting her. E.B.’s guardian
ad litem stated that she had observed E.B. in her foster home and that her foster
parents were “very bonded” with and devoted to E.B. According to the guardian ad
litem, E.B.’s foster parents had been giving E.B. everything that Mother and K.B. had
been unable to provide to E.B. because of their drug use.
Pickrell testified that it would be in E.B.’s best interest to terminate Mother’s
parental rights and to allow E.B.’s foster parents the opportunity to adopt her. The
guardian ad litem likewise recommended terminating Mother’s parental rights so that
E.B. could be adopted by her foster parents.
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II. Discussion
On appeal, Mother contends the evidence is legally and factually insufficient to
support the trial court’s findings that she constructively abandoned E.B., that she
failed to comply with her service plan, and that termination of her parental rights is in
E.B.’s best interest. See id. § 161.001(b)(1)(N), (O), (b)(2).
A. Standard of Review
For a trial court to terminate a parent–child relationship, the party seeking
termination—here, TDFPS—must prove two elements by clear and convincing
evidence: (1) that the parent’s actions satisfy one ground listed in Family Code Section
161.001(b)(1); and (2) that termination is in the child’s best interest. Id. § 161.001(b);
In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). Evidence is clear and convincing if it
“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; Z.N.,
602 S.W.3d at 545.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged finding
to determine whether a reasonable factfinder could form a firm belief or conviction
that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences,
but they must be reasonable and logical. Id. We assume that the factfinder settled any
evidentiary conflicts in favor of its finding if a reasonable factfinder could have done
so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved,
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and we consider undisputed evidence even if it is contrary to the finding. Id.; In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). That is, we consider evidence favorable to the
finding if a reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The
factfinder is the sole judge of the witnesses’ credibility and demeanor. In re J.O.A.,
283 S.W.3d 336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant them with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to decide
whether a factfinder could reasonably form a firm conviction or belief that TDFPS
proved the specific grounds for termination under Family Code Subsections
161.001(b)(1)(N) and (O) and that the termination of the parent–child relationship
would be in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89
S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm
conviction or belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18–
19.
B. Statutory Termination Grounds
In her first two issues, Mother contends the evidence is legally and factually
insufficient to support the trial court’s finding that Mother committed either of the
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alleged statutory grounds for termination of her parental rights. See Tex. Fam. Code
Ann. § 161.001(b)(1)(N), (O).
The trial court was required to find only one statutory ground to terminate
Mother’s parental rights. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). For the
reasons set out below, we conclude that the evidence is legally and factually sufficient
to support the constructive-abandonment ground. See Tex. Fam. Code
Ann. § 161.001(b)(1)(N).
1. Subsection 161.001(b)(1)(N)
Under Subsection (N), the trial court may terminate a parent’s rights if it finds
by clear and convincing evidence that the parent has
(N) constructively abandoned the child who has been in the
permanent or temporary managing conservatorship of [TDFPS]
for not less than six months, and:
(i) [TDFPS] has made reasonable efforts to return the child to
the parent;
(ii) the parent has not regularly visited or maintained
significant contact with the child; and
(iii) the parent has demonstrated an inability to provide the
child with a safe environment[.]
Id.
2. Analysis
Mother does not dispute that E.B. was in the temporary managing
conservatorship of TDFPS for more than six months. Rather, she argues TDFPS
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failed to prove (1) that it made reasonable efforts to return E.B. to Mother, either
through its unlawful and defective service plan or after her release from incarceration;
(2) that Mother failed to maintain significant contact with E.B. as far as she was
permitted; and (3) that Mother demonstrated an inability to provide E.B. with a safe
environment. See id.Before we begin our analysis, we note that “[w]hen services are court ordered,
the parent bears the burden of complying with them.” In re M.S., No. 02-21-00007-
CV, 2021 WL 2654143, at *14 (Tex. App.—Fort Worth June 28, 2021, pet. denied)
(mem. op. on reh’g); see K.C. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-17-00184-
CV, 2017 WL 3585255, at *2 (Tex. App.—Austin Aug. 17, 2017, no pet.) (mem. op.);
In re B.L.D.-O., No. 13-16-00641-CV, 2017 WL 929486, at *4 (Tex. App.—Corpus
Christi–Edinburg Mar. 9, 2017, no pet.) (mem. op.); In re P.N.M., No. 11-08-00080-
CV, 2009 WL 714190, at *3 (Tex. App.—Eastland Mar. 19, 2009, no pet.) (mem. op.).
If a parent is confused about the requirements of a service plan or believes the service
plan is unfair, the parent may file a motion at any time to request the court to review
the plan. M.S., 2021 WL 2654143, at *14; see Tex. Fam. Code Ann. §§ 263.104(c),
263.405(c). Mother filed no such motion.
a. Reasonable Efforts
Mother contends TDFPS cannot show that it implemented a lawful service
plan or that Mother was given a reasonable opportunity to comply with her service
plan. Mother also asserts that TDFPS’s efforts after Mother’s release from
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incarceration are insufficient to prove “reasonable efforts” due to Mother’s inability to
comprehend the required services, TDFPS’s refusal to allow Mother to visit E.B.,
TDFPS’s failure to obtain records related to Mother’s progress while incarcerated, and
TDFPS’s failure to outline lawful services while Mother was incarcerated.
When determining whether TDFPS made reasonable efforts, we focus on its
efforts, not the parent’s. M.S., 2021 WL 2654143, at *13; In re D.G., No. 02-17-00332-
CV, 2018 WL 547787, at *4 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem.
op.). Preparing and administering a service plan for the parent, standing alone,
constitutes evidence that TDFPS made reasonable efforts to return the child to the
parent. In re J.A., No. 01-21-00606-CV, 2022 WL 802982, at *4 (Tex. App.—Houston
[1st Dist.] Mar. 17, 2022, no pet.) (mem. op.); M.S., 2021 WL 2654143, at *14; In re
M.R.J.M., 280 S.W.3d 494, 505 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g);
In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort Worth 2002, no pet.).
Because this element focuses on TDFPS’s efforts, the fact that Mother was
incarcerated is not dispositive. See In re Z.F.S., No. 04-20-00489-CV, 2021 WL
603372, at *3 (Tex. App.—San Antonio Feb. 17, 2021, no pet.) (mem. op.) (“It is
undisputed that [the parent] was incarcerated approximately three weeks after
[TDFPS] explained the service plan to him. However, in reviewing whether [TDFPS]
made a reasonable effort, we must focus on [TDFPS’s] actions, not [the parent’s].”).
The trial court heard testimony that a plan of service was developed for Mother and
that she received a copy; that Mother’s previous case worker met with Mother to
14
review the service plan with her; that Mother’s previous case worker maintained
contact with Mother while she was incarcerated; that TDFPS requested an extension
for Mother to fully engage in services; that Mother was given an extension because
she was incarcerated; that Pickrell met with Mother after her release to review her
service plan with her; that mediation was scheduled, which Mother was informed of
but did not attend; that Pickrell agreed to set up Mother’s visitations with E.B. if
Mother would take a drug test; that Pickrell set up multiple drug-testing appointments
for Mother even after Mother no-called, no-showed; that Pickrell offered to drive
Mother to the drug-testing site; that Pickrell attempted to contact Mother several
times in November 2021 and December 2021; that Pickrell physically went to the
address provided by Mother’s attorney to try to find Mother; and that Pickrell never
gave up trying to help Mother complete her services.
TDFPS’s efforts must be reasonable, not ideal. M.S., 2021 WL 2654143, at *13
(citing In re M.V.G., 440 S.W.3d 54, 61 (Tex. App.—Waco 2010, no pet.)). We hold
that the evidence is legally and factually sufficient to support the trial court’s finding
that TDFPS made reasonable efforts to return E.B. to Mother. See In re J.S., No. 02-
19-00231-CV, 2019 WL 5655254, at *5 (Tex. App.—Fort Worth Oct. 31, 2019, pet.
denied) (mem. op.) (upholding trial court’s finding of TDFPS’s reasonable efforts
where TDFPS created a service plan for the parent and attempted to locate her but
could not); C.G. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-18-00852-CV, 2019 WL
3367524, at *7 (Tex. App.—Austin July 26, 2019, no pet.) (mem. op.) (“The
15
caseworker persisted in trying to set up appointments and assist [father] with work on
his parenting service plan, and a lack of communication was not [TDFPS’s] fault.”); In
re G.T., No. 02-17-00279-CV, 2017 WL 6759036, at *4 (Tex. App.—Fort Worth Dec.
28, 2017, no pet.) (mem. op.) (“A reasonable factfinder could form a firm conviction
or belief that [the minor parent’s] running away [shortly after receiving the service
plan] did constitute an unwillingness to complete the service plan as well as a rejection
of the services offered in the plan.”); Gamez v. Tex. Dep’t of Fam. & Protective Servs., No.
03-09-00190-CV, 2009 WL 4456150, at *7 (Tex. App.—Austin Dec. 1, 2009, no pet.)
(mem. op.) (concluding in dicta that TDFPS’s attempts to locate the parent and to
provide services to her while the case was pending supported the “reasonable efforts”
element of constructive abandonment).
b. Regular Visits or Significant Contact
Mother asserts that the trial court prohibited visits with E.B. while Mother was
incarcerated and argues that, after she was released, TDFPS prevented her from
seeing E.B. by unilaterally requiring that Mother submit to a drug test before visiting
with E.B. Thus, Mother asserts, TDFPS cannot prove that Mother failed to maintain
significant contact with E.B.
It is undisputed that Mother had not seen or visited E.B. since she was two
weeks old. While the trial court may have prohibited visitations while Mother was
incarcerated, Mother’s own actions—both before and after incarceration—prevented
her from visiting E.B. Before she was incarcerated, Mother refused to attend the
16
scheduled Zoom visitation with E.B. at the 2INgage office. After she was released,
Mother did request visits with E.B., which Pickrell told Mother she would arrange if
Mother would first submit to a drug test.6 And Pickrell set up multiple drug-testing
appointments for Mother; she even offered to drive Mother to the drug-testing site,
but Mother repeatedly no-called, no-showed. Despite Pickrell’s efforts, Mother failed
to submit to a drug test, even though doing so meant she could visit E.B.
Additionally, Mother asserted—approximately five to ten times—that she did not
want to be E.B.’s mother, that she could not take care of E.B., and that she did not
want to work her services.
We hold that the evidence is legally and factually sufficient to support the trial
court’s finding that Mother had not regularly visited or maintained significant contact
with E.B. See M.S., 2021 WL 2654143, at *15 (upholding trial court’s finding that the
parent failed to visit or maintain significant contact with the child when evidence
showed that the parent’s contact was “sporadic and chaotic”); J.S., 2019 WL 5655254,
6
Mother asserts TDFPS’s drug-testing prerequisite was not part of the trial
court’s order and was therefore not a condition of visitation. However, the service
plan required that Mother “submit to random drug screens on the day requested.” In
other words, Mother was required to submit to drug testing when requested by
TDFPS. The reason she did not visit E.B. was not TDFPS’s fault but rather her own
failure (and apparent unwillingness) to comply with her service plan. See In re I.D., No.
05-21-00244-CV, 2021 WL 4236878, at *5 (Tex. App.—Dallas Sept. 17, 2021, pet.
denied) (“[W]e conclude that [TDFPS] did not unreasonably thwart Father’s
possession and access, because submitting to drug testing to regain access to the
children was within his control” and also holding that Subsection (N)(ii) has no
voluntariness component, i.e., under that section’s plain language, it does not matter
why the parent did not regularly visit or maintain contact with the child).
17
at *6 (upholding constructive-abandonment finding when the evidence showed that
the mother had not been a consistent figure in the children’s lives, that she chose not
to attend a meeting with her case worker concerning visitation, and that she expressed
an intent to voluntarily give up her parental rights to the children); In re T.T., No. 11-
18-00291-CV, 2019 WL 1716416, at *2–3 (Tex. App.—Eastland Apr. 18, 2019, no
pet.) (mem. op.) (upholding constructive-abandonment finding when evidence
showed that the father had not seen his child for years and that he did not try to
contact the child while the case was pending, despite being informed how he might do
so); In re K.G., 350 S.W.3d 338, 355 (Tex. App.—Fort Worth 2011, pet. denied)
(holding the trial court could have reasonably found that the parent failed to regularly
visit or maintain significant contact with the child when the parent did not accept
TDFPS’s offer to accommodate visitations around the parent’s schedule).
c. Safe Environment
Mother asserts—vaguely and without supporting authority—that because
Pickrell did not see inside Mother’s home and therefore did not have an opinion as to
whether the home was safe for E.B., and because TDFPS implemented an unlawful
service plan, TDFPS cannot prove that Mother presented an inability to provide E.B.
with a safe environment.
Evidence a factfinder may consider in determining whether a parent has shown
that she cannot provide her child with a safe environment includes the parent’s failure
to participate in services and to visit the child, the parent’s lack of stable housing or
18
stable employment, the parent’s past substance abuse, and the actions that led to the
initial removal. J.S., 2019 WL 5655254, at *6; C.G., 2019 WL 3367524, at *7; A.K. v.
Tex. Dep’t of Fam. & Protective Servs., No. 03-14-00450-CV, 2014 WL 6612609, at *4
(Tex. App.—Austin Nov. 21, 2014, no pet.) (mem. op.); In re M.R., J., No. 07-13-
00440-CV, 2014 WL 2591616, at *5 (Tex. App.—Amarillo May 9, 2014, no pet.)
(mem. op.).
Pickrell testified that Mother failed to participate in her services. Both Pickrell
and E.B.’s foster father testified that Mother never visited E.B. and had not seen her
since she was two weeks old. Pickrell also testified that Mother had not shown an
ability to keep stable housing or stable employment and had not begun to work her
services. Despite several attempts, Pickrell was unable to see the inside of Mother’s
home. Additionally, the trial court heard evidence that Mother was incarcerated for
most of her case, that she had issues with past substance abuse, and that she had
admitted to using illegal drugs since her release. Mother told Pickrell on several
occasions that she did not want to be E.B.’s mother and that she could not take care
of E.B. Finally, E.B.’s father is deceased, and Pickrell testified that there are no living
relatives that would be a suitable placement for E.B.
We hold that the evidence is legally and factually sufficient to support the trial
court’s finding that Mother demonstrated she could not provide E.B. with a safe,
stable environment. See J.S., 2019 WL 5655254, at *6 (upholding constructive-
abandonment finding when the parent failed to stay in contact with the case worker,
19
failed to begin services, failed to show an ability to keep stable housing or stable
employment, and had a history of incarceration related to her drug use); In re G.P., 503
S.W.3d 531, 535 (Tex. App.—Waco 2016, pet. denied) (“By not providing [TDFPS]
with any information about her living or employment circumstances, . . . refusing to
take required drug tests, and failing to even maintain contact with [the child], the trial
court could have reasonably concluded that [the parent] failed to provide [the child]
with a safe environment.”); In re T.M., No. 02-09-00145-CV, 2009 WL 5184018, at *5
(Tex. App.—Fort Worth Dec. 31, 2009, pet. denied) (mem. op.) (“[T]he evidence
establishes Father’s inability to provide the children with any environment . . . much
less a safe environment . . . .”).
3. Conclusion
We hold that the evidence is legally and factually sufficient to support the trial
court’s finding that Mother constructively abandoned E.B. Accordingly, we overrule
Mother’s issue regarding termination under Subsection (N). See Tex. Fam. Code Ann.
§ 161.001(b)(1)(N). Because a finding of only one of the grounds alleged under
Section 161.001(b)(1) is sufficient to support termination, A.V., 113 S.W.3d at 362,
we need not reach Mother’s issue regarding termination under Subsection (O). See
Tex. Fam. Code Ann. § 161.001(b)(1)(O).
C. Best Interest
In Mother’s final issue, she challenges the sufficiency of the evidence
supporting the trial court’s determination that termination of Mother’s parental rights
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is in E.B.’s best interest. For the reasons set out below, we overrule Mother’s issue
related to the trial court’s best-interest finding.
1. Best-Interest Factors
Although we generally presume that keeping a child with a parent is in the
child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest
analysis is child-centered, focusing on the child’s well-being, safety, and development,
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In determining whether evidence is
sufficient to support a best-interest finding, we review the entire record. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). Evidence probative of a child’s best interest may be
the same evidence that is probative of a Subsection (b)(1) ground. Id. at 249; C.H., 89
S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the
evidence in light of nonexclusive factors that the factfinder may apply in determining
the child’s best interest:
(A) the [child’s] desires . . . ;
(B) the [child’s] emotional and physical needs[,] . . . now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the
[child’s] best interest . . . ;
(F) the plans for the child by these individuals or[, if applicable,] by
the agency seeking custody;
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(G) the stability of the home or proposed placement;
(H) the [parent’s] acts or omissions . . . indicat[ing] that the existing
parent–child relationship is not a proper one; and
(I) any excuse for the [parent’s] acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see E.C.R.,
402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we consider,
among other evidence, the Holley factors” (footnote omitted)); In re E.N.C., 384
S.W.3d 796, 807 (Tex. 2012). These factors are not exhaustive, and some listed factors
may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed
evidence of just one factor may be sufficient to support a finding that termination is
in the child’s best interest. Id. On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. Id.
2. Analysis
Mother challenges certain of the best-interest factors. She broadly asserts that
TDFPS failed to prove that termination of her parental rights is in E.B.’s best interest
because only conclusory statements were offered as proof and because, in part,
TDFPS implemented an “unlawful” service plan for Mother. We disagree.
a. E.B.’s Emotional and Physical Needs
E.B. was removed from Mother’s care when she was only two weeks old and
had been with her foster parents for most of her life. Pickrell testified that E.B.’s
placement with her foster parents had been a “good environment” for E.B. and that
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E.B. and her foster parents had bonded. When E.B went to live with her foster
parents, she had experienced developmental issues with her gross motor skills. E.B.
was put in physical therapy and had improved significantly while in the care of her
foster parents. And E.B.’s foster parents expressed that they loved E.B., that they
wanted to adopt her, and that they were licensed to adopt.
In contrast, Mother had not seen E.B. since she was two weeks old. Although
Mother occasionally requested visitations with E.B., Mother would not submit to the
drug testing requested by TDFPS in order for her to do so. Moreover, Mother voiced
several times that she did not want to be E.B.’s mother and that she could not take
care of E.B. The trial court was entitled to view this factor as supporting a best-
interest finding.
b. Emotional and Physical Danger to E.B. Now and in the Future
On appeal, Mother criticizes TDFPS’s concerns—based, in part, on Mother’s
statements 7—that she may have had a mental illness. She argues that TDFPS failed to
establish that Mother’s statements or potential mental instability were dangerous to
E.B. But even without considering these statements or potential mental instability,
there is other evidence in the record that supports this factor. Mother explicitly told
Pickrell—several times throughout the case—that she did not want to be E.B.’s
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Mother stated that she could barely keep herself alive and that she was “not on
[her] medication.” She also told Pickrell that she had “superpowers” and “telekinesis”
and that she could “move things with [her] mind.” And Mother refused to attend
visits with E.B. or court proceedings via Zoom because she believed she would get
“trapped” in Zoom.
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mother and that she could not take care of E.B. Additionally, a home with Mother
would likely include drugs and, potentially, violence. As noted above, Mother’s
criminal history consists of several charges and convictions for assault- and drug-
related offenses. Mother was incarcerated for most of the case because she had
violated her probation when she was arrested for possession of marijuana. Further,
Mother admitted that she had used illegal drugs since being released from
incarceration in November 2021.
The trial court was entitled to infer from Mother’s past conduct that she might
commit similar acts in the future. See In re C.B., No. 02-22-00212-CV, 2022 WL
15076123, at *3 (Tex. App.—Fort Worth Oct. 27, 2022, no pet. h.) (mem. op.)
(inferring from the parent’s past conduct that she may commit similar acts in the
future); A.S. v. Tex. Dep’t of Fam. & Protective Servs., 394 S.W.3d 703, 715 (Tex. App.—
El Paso 2012, no pet.) (“The record supports an inference that [the parent’s] course of
misconduct before and throughout this case would continue into the future.”); see
also In re A.J.M., No. 04-17-00681-CV, 2018 WL 1511824, at *6 (Tex. App.—San
Antonio Mar. 28, 2018, pet. denied) (mem. op.) (holding that father’s “criminal
conduct is clearly evidence of his unwillingness to protect [the child] and to put [the
child’s] needs above his own destructive life choices”). This factor supports the trial
court’s finding that termination of Mother’s parental rights is in E.B.’s best interest.
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c. Stability
Children need long-term safety, stability, and permanency; providing for a
child’s physical and emotional needs is of paramount importance. C.B., 2022 WL
15076123, at *3; In re G.V., III, 543 S.W.3d 342, 350 (Tex. App.—Fort Worth 2017,
pet. denied); see also Tex. Fam. Code Ann. § 263.307(a) (“[T]he prompt and permanent
placement of the child in a safe environment is presumed to be in the child’s best
interest.”). In her appellate brief, Mother ostensibly admits that her incarceration
impeded her ability to demonstrate stability. She asserts that she could have
demonstrated a higher level of stability if TDFPS had “actually implemented a lawful
service plan.” However, Mother was incarcerated because of her own actions. It is
difficult to excuse Mother for her lack of stability based on her incarceration when
that incarceration was the consequence of her own choices. See C.B., 2022 WL
15076123, at *4; J.O.A., 283 S.W.3d at 346 (considering parent’s history of
irresponsible choices in best-interest determination).
Additionally, Mother’s past conduct does not bode well for her ability to
provide a stable home for E.B., and nothing in the record indicates that Mother will
have a future ability to provide a stable home. See C.B., 2022 WL 15076123, at *3; In re
V.V., 349 S.W.3d 548, 558 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en
banc op. on reh’g) (opining that a parent’s frequent incarceration leaves a child
without a stable environment). Indeed, Pickrell testified that she was unable to
determine whether Mother had a permanent address or was homeless, whether
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Mother was employed or had any income, or whether Mother was able to provide a
safe and stable environment for E.B.
In contrast, E.B.’s foster parents had provided a “good environment” for E.B.,
who was described as an “extremely happy baby” while in their care. E.B.’s guardian
ad litem opined that E.B.’s foster parents had been giving her everything that her
biological parents could not because of their drug use. Finally, E.B.’s foster parents
indicated that they loved her, that they wanted to adopt her, and that they were
licensed to adopt. The trial court could have found that Mother’s inability to provide
stability for E.B. supported a finding that termination of Mother’s rights is in E.B.’s
best interest.
d. Acts or Omissions Indicating Whether the Parent–Child
Relationship is a Proper One, and Any Excuses for Those Acts or
Omissions
Mother’s criminal history, incarceration, and complete lack of interaction with
E.B. supports the trial court’s finding that reunification with Mother would not be in
E.B.’s best interest. See C.B., 2022 WL 15076123, at *3; In re J.M.G., 608 S.W.3d 51, 57
(Tex. App.—San Antonio 2020, pet. denied) (asserting that absence during early years
of child’s life due to incarceration threatens the child’s emotional well-being and
indicates that the parent’s relationship with the child is not a proper one). While
Mother acknowledges responsibility for her incarceration, it is difficult to excuse
Mother for her failings based on her incarceration when that incarceration was
because of her own choices. See C.B., 2022 WL 15076123, at *4; J.O.A., 283 S.W.3d at
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346 (considering parent’s history of irresponsible choices in best-interest
determination).
Additionally, Mother’s failure to visit with E.B. or participate in services when
she was not incarcerated is probative of the fact that her relationship with E.B. is not
a proper one. See C.B., 2022 WL 15076123, at *3 (stating the parent’s failure to
exercise visitation rights prior to incarceration and her failure to pay child support is
probative); Dowell v. Dowell, 276 S.W.3d 17, 22 (Tex. App.—El Paso 2008, no pet.)
(holding a parent’s failure to exercise visitation rights is relevant to the best-interest
issue). Mother’s excuses, presumably, for failing to comply with her service plan are
based on her incarceration and TDFPS’s alleged failure to implement a lawful service
plan for Mother. But Mother fails to explain why she did not begin or even attempt to
participate in services after she was released. Mother had not seen E.B. since she was
two weeks old, but Mother does not explain why she would not submit to a drug test
if it meant seeing her child again. Notably, Mother does not clarify why she had
previously told Pickrell that she did not want to be E.B.’s mother and that she could
not take care of E.B. She provides no excuse for why she did not maintain sufficient
contact with TDFPS after her release, despite Pickrell’s continued attempts to reach
her. And Mother does not explain why she chose not to participate in the case after
her release, why she did not appear for mediation, or why she did not appear for trial.
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III. Conclusion
Having overruled Mother’s issue regarding termination under Subsection
161.001(b)(1)(N) and Mother’s challenge to the trial court’s best-interest finding, we
affirm the trial court’s order terminating Mother’s parental rights to E.B.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: November 23, 2022
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