in the Interest of A.S., Child v. Department of Family and Protective Services ( 2019 )

Opinion issued April 23, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00985-CV
———————————
IN THE INTEREST OF A.S., A CHILD
On Appeal from the 313th District
Harris County, Texas
Trial Court Case No. 2017-00333J
MEMORANDUM OPINION
L.G. appeals from the trial court’s judgment terminating her parental rights to
her daughter, A.S. In four issues, L.G. contends that the evidence is legally and
factually insufficient to support the termination findings under subsections (D), (E),
(N), and (O) of Texas Family Code section 161.001(b)(1), and the finding that
termination of her parental rights is in the child’s best interest. We affirm.
Background
On December 21, 2016, the Department of Family and Protective Services
received a referral alleging neglectful supervision of one-year old A.S. following an
incident of domestic violence. The report stated that J.S., A.S.’s father, threw L.G.
against a door and repeatedly punched her in the stomach. At the time of the
incident, A.S. was in the living room with L.G.’s friend who called the police. J.S.
was arrested for domestic violence.1
During the investigation of the referral, J.S. told the Department caseworker
that he and L.G. had “used meth.” On January 10, 2017, the Department asked L.G.
to take a drug test. After taking the test, but before being notified of the results, L.G.
gave power of attorney to her mother, S.P., because she feared the Department would
remove A.S. L.G. tested positive for marijuana.
S.P. told the caseworker that she offered to pay for L.G. to go to rehab but
L.G. refused. S.P. also stated that she kicked L.G. and J.S. out of her house because
of their drug use and the domestic violence. The Department subsequently learned
that S.P. had prior CPS history and criminal history involving a DUI, felony
endangerment of a child, and driving with a suspended license, and it removed A.S.
from her care.
1
J.S. had previously been convicted of assaulting a family member in 2012.
2
On January 23, 2017, the Department filed an Original Petition for Protection
of a Child for Conservatorship and for Termination in Suit Affecting the
Parent-Child Relationship. The trial court signed an order granting the Department
emergency temporary managing conservatorship of A.S. that same day.
On February 1, 2017, the trial court granted J.S. community supervision in
connection with his assault of L.G.
On February 2, 2017, the trial court held an adversary hearing at which L.G.
and J.S. appeared. The court found that (1) there was a danger to the physical health
or safety of A.S. caused by an act or failure to act of the person entitled to possession;
(2) an urgent need for A.S.’s protection requiring the immediate removal of A.S; and
(3) notwithstanding reasonable efforts to eliminate the need for removal, a
substantial risk of continuing danger if the child returned home. The court continued
the Department’s temporary managing conservatorship of A.S. and set a status
hearing for March 21, 2017. The court also ordered L.G. and J.S. to submit to drug
testing. Both parents tested positive for amphetamine, methamphetamine, and
marijuana.
The Department created family service plans for L.G. and J.S. L.G.’s service
plan, which reflected that the parents had a prior open family-based safety services
plan shortly after A.S. was born, noted that L.G. seemed to take the allegations
underlying A.S.’s removal less seriously than the Department and that she exhibited
3
a lack of attachment to A.S. The plan also noted that, as of February 21, 2017,
neither parent had contacted the Department regarding A.S.’s well-being and or
appeared at their scheduled permanency conference on February 16, 2017. The
service plan’s stated goals were that L.G. demonstrate (1) an ability to change the
pattern of the behavior that resulted in the abuse/neglect; (2) an ability to provide
basic necessities for A.S.; and (3) an acceptance of her responsibility as a parent.
L.G.’s plan required her to (1) maintain monthly contact with her caseworker; (2)
participate in all recommended services, permanency conferences, family visits, and
court hearings; (3) submit to random urinalysis tests; (4) participate in a drug and
alcohol assessment and follow related recommendations; (5) participate in parenting
classes and domestic violence classes; (6) maintain stable employment and housing;
and (7) participate in a psychosocial evaluation.
On March 21, 2017, the trial court held a status hearing. Neither L.G. nor J.S.
appeared at the hearing. At the conclusion of the hearing, the trial court signed an
order finding the parents’ service plans, with a stated goal of returning the child, to
be reasonable and tailored to address the specific issues identified by the
Department, and the trial court approved the services plans. The same day, the trial
court ordered L.G. to submit to drug testing. L.G. tested positive for marijuana,
amphetamine, and methamphetamine.
4
On May 18, 2017, the National Screening Center issued a letter stating that
L.G. had been ordered to provide samples for drug testing but she walked out before
the sample could be collected, which is considered a “refusal/positive test.”
On May 22, 2017, A.S.’s foster parents filed a petition to intervene in the
Department’s suit, seeking to adopt A.S.
On July 6, 2017, the trial court conducted a permanency hearing. Neither L.G.
nor J.S. appeared in person. Following the hearing, the trial court signed an order
finding that neither parent had demonstrated adequate and appropriate compliance
with the service plan. The court’s order further stated that the service plan and/or
permanency progress report on file represented the actions the court required for the
parents to regain custody. The trial court ordered that S.P. and A.W.P., the maternal
grandparents, submit to a home study to be conducted within two weeks.
On December 18, 2017, the trial court revoked J.S.’s community supervision
after it found that he had violated the terms and conditions of his community
supervision by failing to refrain from engaging in criminal activity and sentenced
him to three years’ confinement. On April 23, 2018, L.G. was arrested for
prostitution and possession of a controlled substance.
On May 4, 2018, the Department filed its permanency report with the trial
court. The report stated that L.G. contacted the Department and said that she would
like to work services. As of the date of the report, L.G. had not started any of the
5
services on her family service plan and had attended only three of the six scheduled
parent/child visits. The report noted that on April 24, 2017, L.G. “came into the
agreement with the agency that the primary goal of unrelated adoption would be in
the best interest of [A.S.].” The report further noted that L.G. “stated that she will
relinquish her rights if she needs to for the best interest of [A.S.]” and that “if [A.S.]
will be adopted she would like for the current caregivers to do so.” The report stated
that A.S. “is doing really well in her current placement” and “has developed a strong
bond with her current foster family” with whom she was placed on January 20, 2017.
The report also noted that the Wellness Counseling Center, which administers the
required drug assessments listed in her family plan, had attempted to contact L.G.
eight times.
On June 6, 2018, the court held a permanency hearing at which L.G. did not
appear. The trial court found that L.G. had not demonstrated adequate and
appropriate compliance with her service plan.
Trial began on July 9, 2018. Neither L.G. not J.S. appeared. The intervening
parties—the foster parents and A.S.’s maternal grandparents—advised the court that
they had reached an agreement involving visitation with A.S. in the event that L.G.’s
and J.S.’s parental rights were terminated. The trial court informed the parents’
attorneys that while they had received information that their clients might want to
6
relinquish their parental rights to A.S., the trial court would give them only two
weeks to procure those relinquishments; if they did not, the trial would proceed.
On August 7, 2018, the trial resumed. Neither L.G. nor J.S. appeared. Prior
to calling its first witness, the Department introduced numerous exhibits, which the
trial court admitted, including L.G.’s family service plan, criminal history, and drug
test results.
Claudia Riggins, a Department conservatorship caseworker, testified that A.S.
came into the Department’s care because of L.G.’s drug use and domestic violence.
Riggins testified that, once conservatorship began, L.G. and J.S. were scheduled for
drug tests, their family service plans were created, and their visitation schedules set
up. Despite the Department’s multiple attempts to contact L.G. and mailing her
family service plan to her, LG. stopped replying to all communications from the
Department and no longer attended visitation with A.S. Riggins testified that, in
February 2017, L.G. tested positive for methamphetamine, marijuana, marijuana
metabolite, and amphetamine, and in, March 2017, she again tested positive for
methamphetamine, marijuana, and marijuana metabolite.
Riggins testified that the Department’s file did not include any certificate of
completion for any services by L.G. She testified that although L.G. was initially
scheduled for weekly visits with A.S., the visits were changed to monthly visits
because L.G. had cancelled a majority of them. Riggins testified that L.G. attended
7
only two of her eight scheduled visits with A.S. Riggins stated that the Department
was asking the court to terminate L.G.’s parental rights because she did not complete
any of the items of her family service plan, and she was arrested during the pendency
of the case. She further testified that L.G.’ actions created a dangerous and unstable
environment for A.S. Riggins stated that L.G. had provided a few outfits and a
couple of toys at a couple of her visits with A.S.
Riggins testified that A.S. was doing very well in her current placement and
was very close to her foster parents as well as their sons. Riggins stated that A.S.
calls her foster parents “mom” and “dad” and interacts with the sons like siblings.
A.S. does gymnastics and appears very happy with her foster family. Riggins
testified that the foster parents have demonstrated an ability to provide a safe and
stable home for A.S. now and in the future. She stated that neither L.G. nor J.S. has
demonstrated that they could provide a safe and stable environment for A.S. Riggins
stated that she believed that termination of L.G.’s and J.S.’s parental rights were in
A.S.’s best interest.
On cross-examination, Riggins testified that the case had begun in October
2015, shortly after A.S. was born, with a family-based safety services plan. Riggins
testified that L.G. successfully worked her services in the family-based case which
enabled A.S. to stay with her until the current case was filed in January 2017.
Riggins stated that L.G. had expressed a desire to relinquish her parental rights on
8
and off throughout the pendency of the case but never executed a written
relinquishment.
Carrie Hendricks-Helm, the advocacy coordinator, testified that Child
Advocates supported the Department’s request to terminate the parental rights of
both L.G. and J.S. because the parents had demonstrated an inability to care for A.S.
Hendricks-Helm stated that she visited the foster family monthly and that A.S. was
very bonded with her foster family with whom she had spent the majority of her
young life. She testified that A.S. participated in activities such as gymnastics and
that she enjoyed going to see her brothers play baseball.
On cross-examination, Hendricks-Helm testified that the last time she saw
L.G. was at a family visit with A.S. She testified that L.G. used a lot of vulgar
language during her visit and had to be told by the monitor to stop. She further
testified that A.S. was not comfortable with L.G. and did not appear bonded with
her, and that A.S. mostly sat with her maternal grandmother.
The foster mother testified that A.S. has been living with her family for sixteen
months and has bonded with her sons whom A.S. calls her “bubbies.” She testified
that A.S. takes a gymnastics class and will take a dance class in the fall. The foster
mother testified that she and her husband wish to adopt A.S.
At the conclusion of trial, the Department requested that the foster parents be
named as joint sole managing conservators and A.S.’s maternal grandparents be
9
named non-parent possessory conservators. The Department requested that L.G.’s
parental rights be terminated based on subsections (D), (E), (N), and (O) of Texas
Family Code section 161.001(b)(1), and that J.S.’s parental rights be terminated on
based on subsections (D), (E), (N), (O), and (Q). The Department also asked that
the visitation schedule that was outlined at the July 9, 2018 hearing be memorialized
in the order.
The trial court found clear and convincing evidence supporting (1)
termination of L.G.’s parental rights to A.S. under subsections (D), (E), (N), and (O),
(2) termination of J.S.’s parental rights under subsections (D), (E), (N), (O), and (Q),
and (3) a finding that termination of L.G.’s and J.S.’s parental rights was in the best
interest of the child. The trial court named the foster parents as joint sole managing
conservators and A.S.’s maternal grandparents as non-parent conservators. The trial
court signed a final decree of termination on October 11, 2018. This appeal
followed.
Discussion
On appeal, L.G. challenges the legal and factual sufficiency of the evidence
to support the predicate findings supporting termination under subsections (D), (E),
(N), and (O) of Texas Family Code section 161.001(b)(1). She also challenges the
legal and factual sufficiency of the evidence supporting the trial court’s best interest
finding under section 161.001(b)(2).
10
A. Burden of Proof and Standard of Review
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S .W.3d 355, 361 (Tex. 2003). A parent’s right to the “companionship, care,
custody, and management” of his or her child is a constitutional interest “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59
(1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly
scrutinize termination proceedings and strictly construe the involuntary termination
statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
In a case to terminate parental rights under section 161.001 of the Family
Code, the Department must establish, by clear and convincing evidence, that (1) the
parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001(b). 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.” Id. § 101.007; In re J.F.C.,
96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate finding under section
161.001[(b)](1) is necessary to support a judgment of termination when there is also
a finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d at
362.
11
When reviewing the legal sufficiency of the evidence in a case involving
termination of parental rights, we determine whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction that there existed
grounds for termination under section 161.001(b)(1) and that termination was in the
best interest of the child. See TEX. FAM. CODE § 161.001(b)(1), (2); In re J.F.C., 96
S.W.3d at 266. In doing so, we examine all evidence in the light most favorable to
the finding, assuming that the “factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d at 266. We
must also disregard all evidence that the factfinder could have reasonably
disbelieved or found to have been incredible. Id.
When conducting a factual sufficiency review, we consider and weigh all of
the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009). “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction, then
the evidence is factually insufficient.” Id. We give due deference to the factfinder’s
findings and we cannot substitute our own judgment for that of the fact finder. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole arbiter when
assessing the credibility and demeanor of witnesses. Id. at 109.
12
B. Family Code Section 161.001(1)(O)—Failure to Comply with a Court
Order
In her third issue, L.G. contends that the evidence is legally and factually
insufficient to support termination of her parental rights under section
161.001(b)(1)(O).
For a court to terminate parental rights under subsection (O), the court must
find by clear and convincing evidence that the parent:
failed to comply with the provisions of a court order that specifically
established the actions necessary for the parent to obtain the return of
the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services
for not less than nine months as a result of the child’s removal from the
parent under Chapter 262 for the abuse or neglect of the child.
TEX. FAM. CODE § 161.001(b)(1)(O). Texas courts generally take a strict approach
to subsection (O)’s application. In re D.N., 405 S.W.3d 863, 877 (Tex. App.—
Amarillo 2013, no pet.). A parent’s failure to complete one requirement of her
family service plan supports termination under subsection (O). In re J.M.T., 519
S.W.3d 258, 267 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
L.G. does not dispute that the Department had temporary managing
conservatorship of A.S. for more than nine months and that the Department removed
A.S. from her care as a result of L.G.’s abuse or neglect of A.S. Rather, L.G.
contends that the trial court gave too much deference to the Department’s “inherently
subjective” determination that she had not complied with the provisions of her
13
family service plan. She argues that if the Department had done a better job of
communicating with her, her parental rights would not have been terminated on this
ground.
L.G.’s family service plan, which was admitted at trial, required her to
maintain monthly contact with her caseworker and participate in all recommended
services, permanency conferences, family visits, and court hearings. L.G. also had
to submit to random urinalysis tests, participate in a drug and alcohol assessment
and follow related recommendations, participate in parenting classes and domestic
violence classes, maintain stable employment and housing, and participate in a
psychosocial evaluation.
The trial court’s orders following the three permanency hearings held in this
case show that L.G. did not appear for any of the hearings. L.G. also did not appear
at trial on July 9, 2018, or when trial resumed on August 7, 2018. Riggins testified
that L.G. attended only two of her eight scheduled visits with A.S. The record also
shows that L.G. had been ordered to provide samples for drug testing on May 18,
2017, but that she walked out before the samples could be collected. Riggins
testified that L.G. had not completed any of the items of her family service plan by
the time of trial.
The evidence conclusively showed that L.G. did not comply with the
requirements of her court-ordered service plan. See In re M.C.G., 329 S.W.3d 674,
14
675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (determining that parent’s
failure to complete one requirement of her service plan supports termination); In re
J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.) (“Despite [parent]’s
achievement of some of the plan’s goals, the evidence establishes that other
requirements of the plan were not achieved.”). Moreover, the trial court did not need
to rely on the Department’s determination in this regard because the record shows
that L.G. failed to appear at each of the permanency hearings, as reflected in the trial
court’s orders, and did not appear at trial. With regard to L.G.’s assertion that the
Department did not do an adequate job communicating with her, Riggins testified
that the Department made numerous attempts to contact L.G. and mailed a family
service plan to her but she stopped replying to all communications from the
Department.
Reviewing all the evidence in the light most favorable to the trial court’s
finding, we conclude that a reasonable factfinder could have formed a firm belief or
conviction as to the truth of the termination findings under subsection (O). We
further conclude that, in light of the entire record, any “disputed evidence that a
reasonable fact finder could not have credited in favor of the endangerment findings
is not so significant that a fact finder could not reasonably have formed a firm belief
or conviction” as to the truth of these termination findings. See In re H.R.M., 209
S.W.3d at 108. Accordingly, the evidence is both legally and factually sufficient to
15
support the termination findings under Family Code Section 161.001(b)(1)(O).2 We
overrule L.G.’s third issue.
C. Best Interest of the Child
In her fourth issue, L.G. contends that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental rights
is in A.S.’s best interest.
There is a strong presumption that the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). Prompt and permanent placement of the child in a safe environment
is also presumed to be in the child’s best interest. TEX. FAM. CODE § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding: the desires of the
child; the present and future physical and emotional needs of the child; the present
and future emotional and physical danger to the child; the parental abilities of the
persons seeking custody; the programs available to assist those persons seeking
2
Having determined that the evidence is sufficient to support the trial court’s finding
on this statutory ground, we need not consider whether the evidence would support
subsections (D), (E), or (N), the other predicate grounds for termination challenged
in L.G.’s first and second issues. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
(affirming termination decree based on one predicate without reaching second
predicate found by the trier of fact and challenged by parent).
16
custody in promoting the best interest of the child; the plans for the child by the
individuals or agency seeking custody; the stability of the home or proposed
placement; acts or omissions of the parent which may indicate the existing parent-
child relationship is not appropriate; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). As noted, this list
of factors is not exhaustive, and evidence is not required on all of the factors to
support a finding that terminating a parent’s rights is in the child’s best interest. Id.;
In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting
termination under one of the grounds listed in section 161.001(1) can also be
considered in support of a finding that termination is in the best interest of the child.
See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be
probative of both section 161.001(1) grounds and best interest).
In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment, including: the child’s age and physical and mental vulnerabilities; the
willingness and ability of the child’s family to seek out, accept, and complete
counseling services and to cooperate with and facilitate an appropriate agency’s
close supervision; the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; and whether
the child’s family demonstrates adequate parenting skills, including providing the
17
child with minimally adequate health and nutritional care, a safe physical home
environment, and an understanding of the child’s needs and capabilities. TEX. FAM.
CODE § 263.307(b); In re R.R., 209 S.W.3d at 116.
1. Desires of the Child
L.G. argues that, in light of A.S.’s young age, we must presume that she is
bonded with her foster family as well as with L.G. and, therefore, this factor weighs
against termination.
“When children are too young to express their desires, the factfinder may
consider whether the child has bonded with the proposed adoptive family, are
well-cared for by them, and they have spent minimal time with a parent.” In re S.R.,
452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A
child’s need for permanence through the establishment of a “stable, permanent
home” has been recognized as the paramount consideration in a best interest
determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no
pet.). Evidence about the present and future placement of the child is relevant to the
best interest determination. See In re C.H., 89 S.W.3d at 28.
A.S. was two years old at the time of trial and, therefore, too young to express
her desires. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st Dist.]
2013, no pet.). There was no evidence that A.S. was bonded with L.G. or that L.G.
was bonded with her child. When the trial began, the court noted that the parents’
18
attorneys had received information that their clients might want to relinquish their
parental rights to A.S. Riggins testified that L.G. had expressed a desire to relinquish
her parental rights on and off throughout the pendency of the case. She also testified
although L.G. was initially scheduled for weekly visits with A.S., the visits were
changed to monthly visits because L.G. had cancelled a majority of them and L.G.
attended only two of her eight scheduled visits with A.S. During one of the visits,
L.G. used vulgar language and had to be told by the monitor to stop. Riggins testified
that A.S. was not comfortable with L.G. during the visit, did not appear bonded with
her, and sat mostly with her grandmother.
Riggins testified that A.S. was very close to her foster parents as well as their
sons, that A.S. calls her foster parents “mom” and “dad,” and interacted with the
sons like siblings. Hendricks-Helm, the advocacy coordinator, testified that she
visited the foster family monthly and that A.S. was very bonded with the family with
whom she had spent the majority of her young life. The foster mother testified that
A.S. has been living with her family for sixteen months and that A.S. is very bonded
with her family. This evidence supports the trial court’s best interest finding under
the first Holley factor.
2. Present and Future Physical and Emotional Needs of the Child
Riggins testified that L.G. had provided a few outfits and a couple of toys
during her visits with A.S. but that L.G. had not demonstrated that she could provide
19
a safe and stable environment for A.S. She testified that the foster parents had
demonstrated an ability to provide a safe and stable home for A.S. currently and in
the future. Similarly, Henricks-Helm testified that both L.G. and J.S. had
demonstrated an inability to care for A.S. during the pendency of the case. She
testified that A.S. is involved in activities with her foster family, participates in
gymnastics, and enjoys going to see her brothers play baseball. This evidence
supports the trial court’s best interest finding under the second Holley factor.
3. Present and Future Emotional and Physical Danger to the Child and
Parents Acts or Omissions
The third Holley factor is the present and future physical danger to the child.
See Holley, 544 S.W.2d at 371–72. The eighth factor considers acts or omissions of
the parent that indicate the parent-child relationship is improper. See id.
The evidence shows that the Department first removed A.S. from L.G.’s care
following an incident of domestic violence for which J.S. was arrested. A.S. was
nearby in the living room with L.G.’s friend at the time of the incident. The trial
court heard evidence that this was not the first time that J.S. had engaged in domestic
violence and that he had previously been convicted of violence against a family
member in 2012. S.P. also told the Department caseworker that she kicked L.G. and
J.S. out of her house because of the domestic violence and the parents’ drug use.
The evidence also shows that L.G. had a pattern of illegal drug use both before
A.S.’s removal and during the pendency of the case. During the investigation of the
20
initial referral, J.S. told the caseworker that he and L.G. had “used meth.” In January
2017, L.G. tested positive for marijuana. In February 2017, she tested positive for
amphetamine, methamphetamine, marijuana, and marijuana metabolite. In March
2017, she tested positive for marijuana, amphetamine, and methamphetamine. In
May 2017, she showed up for a court-ordered drug test but walked out before the
sample could be collected which the testing center considered a refusal/positive test.
As noted above, S.P. told the caseworker that she kicked L.G. and J.S. out of the
house because of the domestic violence and their drug use. She also told the
caseworker that she offered to pay for L.G. to go to rehab but that L.G. refused. The
trial court also heard evidence that in April 2018, while this case was pending, L.G.
was arrested for prostitution and possession of a controlled substance.
A parent’s past conduct is probative of her future conduct when evaluating
the child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San
Antonio 2013, no pet.). L.G.’s inability to refrain from drug use during the pendency
of the case, as well as her arrest for possession of a controlled substance, reflects an
inability to perceive the danger that parental drug use would pose to a child. See In
re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *6 (Tex. App.—Houston [1st
Dist.] 2012, pet. denied) (mem. op.) (concluding that father’s concealment of drug
use and continued relationship with mother who abused drugs demonstrated father’s
inability to perceive danger that parental drug use posed to child). Further, the
21
evidence was sufficient to show that L.G. endangered A.S. by remaining with J.S.—
who had been previously convicted of assaulting a family member, admitted his drug
use to the Department, and tested positive on his court-ordered drug test—thereby
exposing A.S. to an unsafe environment. See In re M.M.M., No. 01-17-00980-CV,
2018 WL 1954178, at *12 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (mem.
op.) (“[E]vidence of a child’s exposure to domestic violence is supportive of an
endangerment finding.”); In re M.S.L., No. 14-14-00382-CV, 2014 WL 5148157, at
*6-7 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no pet.) (mem. op.)
(concluding father’s crimes, including drug-related offenses and domestic violence
occurring before and after children’s births, supported trial court’s best interest
finding); L.B. v. Tex. Dep’t of Family & Protective Servs., No. 03-09-00429-CV,
2010 WL 1404608, at *5 (Tex. App.—Austin Apr. 9, 2010, no pet.) (mem. op.)
(concluding exposing child to domestic violence and drug use supports factfinder’s
conclusion that mother engaged in course of conduct that endangered children).
This evidence supports the trial court’s best interest finding under the third
and eighth Holley factors.
4. Parental Abilities of Individuals Seeking Custody, Plans for the Child,
and Stability of Home or Placement
The fourth Holley factor is the parental abilities of the individuals seeking
custody. See Holley, 544 S.W.2d at 371–72. The sixth factor considers the plans
22
for the child by the individuals or agency seeking custody. See id. The seventh
factor looks at the stability of the home or proposed placement. See id.
Among other tasks, L.G.’s service plan required her to participate in parenting
classes. Two of the stated goals of her service plan were that she demonstrate an
ability to provide basic necessities for A.S. and an acceptance of her responsibility
as a parent. The evidence shows that L.G. did not attend a parenting class. Riggins
testified that L.G. provided a few outfits and a couple of toys at two of her visits with
A.S. “but that was it.” L.G. attended only two of her eight scheduled visits with A.S.
and, during one of them, she used vulgar language and had to be told to stop by the
monitor. On L.G.’s service plan, the caseworker noted that L.G. seemed to take the
allegations underlying A.S.’s removal less seriously than the Department. L.G. also
did not maintain contact with the Department to ensure the well-being of A.S. L.G.’s
continued drug use during the case, as well as her arrest for prostitution and
possession of a controlled substance, also demonstrate a lack of parental ability and
acceptance of her responsibilities as a parent. See In re K.S., 420 S.W.3d 852, 855
(Tex. App.—Texarkana 2014, no pet.) (noting parental drug abuse is reflective of
poor judgment and is also factor to be considered in best interest analysis); Wischer
v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00165-CV, 2012 WL
3793151, at *7 (Tex. App.—Austin Aug. 29, 2012, no pet.) (mem. op.).
23
Riggins and Hendricks-Helm testified that the foster parents have
demonstrated an ability to care for A.S. during the pendency of the case. A.S.
considers her foster parents to be her mom and dad and her foster brothers to be her
siblings, and she participates in gymnastics and activities with the family. The
evidences shows that A.S. is doing very well with her foster family and that the
parents wish to adopt her. There was no evidence at trial regarding L.G.’s plans for
A.S. should she be returned to her care.
Riggins and Hendricks-Helm also testified that the foster parents
demonstrated an ability to provide a safe and stable environment for A.S. currently
and in the future, whereas L.G. had not shown an ability to provide a safe and stable
home for her child. The trial court heard testimony that A.S. was happy in her foster
family and very bonded to her foster parents and their sons with whom she had spent
the majority of her young life. The trial court also heard evidence that L.G. had been
arrested for prostitution and possession only a few months before trial. This
evidence supports the trial court’s best interest finding under the fourth, sixth, and
seventh Holley factors.
Viewing all the evidence in the light most favorable to the judgment, we
conclude that a factfinder could have formed a firm belief or conviction that
termination of L.G.’s parental rights is in A.S.’s best interest. See J.F.C., 96 S.W.3d
at 265–66. In light of the entire record, the disputed evidence that a reasonable
24
factfinder could not have credited in favor of the best interest finding is not so
significant that a fact finder could not reasonably have formed a firm belief or
conviction that termination of L.G.’s parental rights is in her child’s best interest.
See In re H.R.M., 209 S.W.3d at 108. After considering the relevant factors under
the appropriate standards of review, we hold the evidence is legally and factually
sufficient to support the trial court’s finding that termination of the parent-child
relationship is in the best interest of the child. Accordingly, we overrule L.G.’s
fourth issue.
Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
25