in the Interest of I. F. Child v. Department of Family and Protective Services ( 2022 )

Opinion issued November 3, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00375-CV
———————————
IN THE INTEREST OF I.F., A CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2021-00359J
MEMORANDUM OPINION
In this appeal, D.F. (Mother) challenges the trial court’s final decree
terminating her parental rights to her minor child, I.F. (Ivy), based on findings that
she endangered Ivy, she constructively abandoned Ivy, she failed to comply with
the provisions of a court order specifying the actions necessary to obtain the return
of Ivy, and termination of her parental rights was in Ivy’s best interest. See TEX.
FAM. CODE § 161.001(b)(1)(D), (E), (N), (O); id. § 161.001(b)(2). In five issues,
Mother argues that the evidence was legally and factually insufficient to support
the trial court’s findings made pursuant to Texas Family Code subsections
161.001(b)(1)(D), (E), (N), (O) and that the evidence was legally and factually
insufficient to support the trial court’s finding that termination of Mother’s parental
rights was in Ivy’s best interest.
We affirm.
Background
Mother gave birth to Ivy on April 9, 2013.1 Ivy came into DFPS’s care on
March 3, 2021. Law enforcement personnel found Ivy, who was seven years old at
the time, and her younger brother, who was five years old at the time, alone in a
hotel room. Law enforcement detained a man referred to as “C.B.” who had rented
five hotel rooms in his name. Ivy was in one of the rooms without adult
supervision, and she had no way to contact Mother. The children reported at the
time law enforcement found them that Mother had brought them food and had been
gone for approximately 40 minutes. Mother was eventually located sleeping in
another of C.B.’s rooms, where law enforcement found methamphetamine, crack
1
The trial court also terminated the parental rights of Ivy’s unknown father. Mother
testified that she did not know the name of Ivy’s biological father. Mother was in a
relationship with another man, D.K., who was determined not to be Ivy’s
biological father but who acted as a father figure. Mother is the only parent who is
party to this appeal.
2
pipes, and other drug paraphernalia. C.B. did not identify the nature of his
relationship with Mother.
When the DFPS investigator returned several hours later to interview the
children, they were again alone in the hotel room. Ivy told the investigator that she
was not scared to be alone in the room and that her Mother was coming right back.
Mother did return several minutes later. Mother acknowledged to the investigator
that she was living in the hotel. Mother was not working at that time, and she told
the investigator that a friend of her boyfriend was paying for the hotel rooms. Ivy
was taken into emergency custody by DFPS.2 DFPS petitioned for termination of
Mother’s parental rights to Ivy and for managing conservatorship, and the trial
court named DFPS as Ivy’s temporary managing conservator.
Ivy was placed with a foster family upon removal. Subsequently, Mother
identified a relative—her maternal great aunt—who could care for Ivy. Ivy was
placed with the aunt for several months, and her foster family maintained contact
with her and continued to visit Ivy. The maternal great aunt then died, and Ivy
returned to live with the foster family with whom she had originally been placed,
and where she has remained.
2
DFPS’s case file indicated that Ivy’s brother, T.F., had been reported missing by
his father, who had been unable to find Mother in order to exercise his period of
custody under a standard possession order. T.F. was returned to his biological
father and is not a subject to this suit.
3
The trial of this case commenced on March 8, 2022. The trial court admitted
DFPS’s records from the case including the removal affidavit, emergency orders,
Mother’s family service plan, and drug test orders. The trial court also admitted
evidence of Mother’s criminal history. Mother was charged in June 2019 with
assault against a family member. The DFPS investigator’s affidavit, which was
admitted into evidence at trial, indicated that Mother had assaulted her father.
Mother told the caseworker that she suspected her father had dementia, and he
“charged” at her for no reason while she was mopping the floor. When he started
attacking her, Mother “forgot who he was and defended herself which is how she
got charged with family violence.”
Mother was also charged in September 2020 with burglary with intent to
commit theft. Both charges were later dismissed. Mother was also charged with
burglary of a building in December 2020, but that charge was reduced to a
conviction for criminal trespass and resulted in Mother spending approximately 90
days in jail during the summer of 2021.
The DFPS caseworker, K. Lewis, testified that Ivy was currently placed in
an adoptive foster placement. Ivy was very bonded to her foster family. Mother
had not had Ivy enrolled in school for more than a year, but the foster placement
had gotten her enrolled and worked hard to help her catch up on the schooling she
had missed. The child advocate assigned to Ivy’s case likewise testified that Ivy
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adapted “extremely well” to being in the foster home: “She’s very comfortable,
she’s thriving, doing activities, doing well in school.”
Lewis further testified regarding the events that brought Ivy into DFPS’s
care and other instances of Mother’s neglectful supervision. Lewis testified that
Mother was staying in a hotel room that was raided by law enforcement. The room
Mother was found in had drugs and a gun that belonged to the man staying in
Mother’s room. Law enforcement found Ivy, who was seven years old at the time,
and her younger brother, who was five years old at the time, unattended in a
different hotel room.
Lewis related another incident of neglectful supervision that occurred in
2019, when Ivy and a sibling were left in the care of woman Mother had known
“less than six months” who was “supposedly watching the children overnight for a
few hours.” The care giver left to go get pizza, and Ivy’s younger sibling “was able
to get his hands on a lighter and set . . . a bed sheet on fire, which ignited the entire
motel.” In November 2020, Ivy’s brother was found wandering alone in his
underwear in the hotel parking lot, looking for his mother. Mother told the
investigator in that case that she was moving something from her car and told the
child to stay in his room. She contended that she was gone less than ten minutes
when she returned to find the police with her child.
5
Lewis also testified that Mother had multiple drug tests in which she tested
positive for methamphetamine and amphetamine use, including in March 2021,
September 2021, and October 2021. Lewis testified that these positive drug tests
were a violation of Mother’s family plan of service, which also required Mother,
among other things, to maintain stable housing and income, attend parenting
classes and substance abuse assessment, and refrain from criminal activity. Lewis
testified that Mother had completed no services. Lewis further testified that Mother
visited Ivy approximately 10 times during the year that the case was pending, but
Mother missed some opportunities to visit Ivy while she was incarcerated for
approximately two months during the time that Ivy was in DFPS custody.
Lewis testified that DFPS believed it was in Ivy’s best interest to terminate
Mother’s parental rights because Mother continued to test positive for drug use
throughout the case, Mother did not comply with the family plan of service, and
Mother had a history with DFPS of neglectful supervision for leaving her children
unsupervised.
Mother also testified at trial. She acknowledged that Ivy was removed from
her care when the child was found in a hotel room without another adult present.
She testified, however, that the child was not alone because she was asleep in
another room belonging to “[a]n associate at the time.” Mother further admitted
that the room she was staying in “had drugs and guns [but one of the guns] was a
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paintball gun[.]” Mother admitted she used methamphetamine while she was in the
hotel where Ivy was found and removed from her care. Mother also admitted that
she used methamphetamine in November 2021.
Mother testified that she had been incarcerated from June 2, 2021, until the
“end of August or right at the beginning of September.” Mother further testified
that she completed her substance abuse assessment. She stated that the counselor
who did the assessment recommended counseling and anger management due to
the altercation with her father, but the follow-up appointment was canceled, and
Mother was unable to coordinate with her caseworker to get them rescheduled.
Lewis, however, was unsure where Mother had completed this assessment, stating,
“If [Mother’s] referring to the Best Group, . . . I did reach out to them, and they
stated that no services were performed. So if she completed a substance abuse
assessment, I do not have that on file.”
Mother further testified that, at the time of trial, she was living in her great
aunt’s home and working for her brother, so she was able to maintain stable
housing and pay her bills. Furthermore, at the time of trial, Mother did not have
any pending criminal charges, nor was she on probation. Mother acknowledged
that she had not provided proof of her employment or housing to DFPS.
The trial court found that Mother engaged in conduct supporting termination
of her parental rights pursuant to Family Code subsections 161.001(b)(1)(D), (E),
7
(N), and (O). The trial court further found that termination of Mother’s parental
rights to Ivy was in the child’s best interest. Accordingly, the trial court rendered
its final order terminating Mother’s parental rights, and this appeal followed.
Sufficiency of Endangerment Findings
In her first and second issues, Mother argues that the evidence was legally
and factually insufficient to support the trial court’s findings that Mother
endangered Ivy pursuant to subsections (D) and (E).
A. Standard of Review
A trial court may order termination of the parent-child relationship if it finds
one of the statutorily enumerated predicate grounds for termination and that
termination of parental rights is in the best interest of the children. TEX. FAM. CODE
§ 161.001(b); see In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012). DFPS must
prove both elements—a statutorily prescribed predicate finding and that
termination is in the child’s best interest—by clear and convincing evidence. In re
E.N.C., 384 S.W.3d at 802 (stating that federal due process clause and Texas
Family Code both mandate “heightened” standard of review of clear and
convincing evidence in parental-rights termination cases). The Family Code
defines “clear and convincing evidence” as “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
8
truth of the allegations sought to be established.” TEX. FAM. CODE § 101.007; In re
E.N.C., 384 S.W.3d at 802.
“Evidence is legally sufficient if, viewing all the evidence in the light most
favorable to the fact-finding and considering undisputed contrary evidence, a
reasonable factfinder could form a firm belief or conviction that the finding was
true.” In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We assume that any disputed
facts were resolved in favor of the finding if a reasonable factfinder could have
done so. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In reviewing the evidence’s
factual sufficiency, we consider the entire record, including disputed evidence. In
re A.C., 560 S.W.3d at 631. “Evidence is factually insufficient if, in light of the
entire record, the disputed evidence a reasonable factfinder could not have credited
in favor of a finding is so significant that the factfinder could not have formed a
firm belief or conviction that the finding was true.” Id.
B. Analysis
In her first two issues, Mother argues that the evidence was insufficient to
support the trial court’s endangerment findings pursuant to subsections
161.001(b)(1)(D) and (E).
Section 161.001(b)(1)(D) provides that a court may order termination of the
parent-child relationship if it finds by clear and convincing evidence that the parent
has “knowingly placed or knowingly allowed the child to remain in conditions or
9
surroundings which endanger the physical or emotional well-being of the child.”
TEX. FAM. CODE § 161.001(b)(1)(D). Section 161.001(b)(1)(E) provides that a
court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has “engaged in conduct or knowingly placed
the child with persons who engaged in conduct which endangers the physical or
emotional well-being of the child.” Id. § 161.001(b)(1)(E).
The word “endanger” as used in section 161.001 “means more than a threat
of metaphysical injury or the possible ill effects of a less-than-ideal family
environment.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). In this context, endanger means to expose to loss or injury or to jeopardize.
Id.; In re A.J.H., No. 01-18-00245-CV, 2019 WL 190050, at *7 (Tex. App.—
Houston [1st Dist.] Jan. 15, 2019, no pet.) (mem. op.); Jordan v. Dossey, 325
S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
(endangerment includes jeopardizing child’s emotional or physical health)..
Endangerment under subsection (D) arises from a child’s environment and a
parent’s disregard for the potential for danger created by the environment. In re
A.J.H., 2019 WL 190050, at *7; Jordan, 325 S.W.3d at 721. Although “the focus
of subsection (D) is on the child’s living environment and not on the parent’s
conduct, parental conduct may produce an endangering environment.” In re
M.T.W., No. 01-11-00162-CV, 2011 WL 6938542, at *12 (Tex. App.—Houston
10
[1st Dist.] Dec. 29, 2011, no pet.) (mem. op.) (citing Jordan, 325 S.W.3d at 721);
see V.P. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-19-00531-CV, 2020
WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem. op.) (holding
that “environment” refers to both child’s living conditions and environment
produced by parent’s conduct in child’s home). For example, abusive or violent
conduct or illegal drug use by a parent or other resident of the child’s home may
produce an endangering environment. In re M.T.W., 2011 WL 6938542, at *12.
Endangerment under subsection (E) arises when a parent’s course of conduct
jeopardizes the child’s physical or emotional well-being. See In re A.J.H., 2019
WL 190050, at *8. This course of conduct includes acts, omissions, and failures to
act, but it “must be based on more than a single act or omission—the evidence
must demonstrate a voluntary, deliberate, and conscious course of conduct by the
parent.” In re M.T.W., 2011 WL 6938542, at *12 (citing Jordan, 325 S.W.3d at
723). Because the evidence concerning these two statutory grounds for termination
is often interrelated, we may consolidate our examination of the evidence to
support both grounds. See In re A.J.H., 2019 WL 190050, at *8.
Mother argues that the record was “silent as to any inherently dangerous
conditions of the child’s living environment,” as required to support findings under
subsection (D). She asserts that Ivy was not in immediate danger when law
enforcement personnel found her and her younger brother alone in their hotel
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room. She further asserts that she had not been gone for more than an hour and was
in another room in the same hotel, and, thus, her conduct did not rise to the level of
endangerment. Mother’s arguments do not address the entirety of the evidence
regarding the conditions of Ivy’s environment.
The record shows that, prior to removal, Ivy’s living conditions were
unstable, and she had not been enrolled in school for more than a year. Mother and
Ivy lived with Mother’s father for a time, and Mother had an altercation with her
father that resulted in her arrest for assault against a family member. See In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.) (holding that
“abusive or violent conduct by a parent or other resident of a child’s home may
produce an environment that endangers the [child’s] physical or emotional well-
being”). Mother engaged in other criminal behavior, resulting in her pleading
guilty to criminal trespass and serving time in jail during the pendency of the case,
resulting in further instability in her living arrangements.
Mother lived in various motels with Ivy, failing to supervise Ivy and her
younger brother on several occasions. This included one incident in which Mother
left Ivy and her brother with a woman mother did not know very well, and Ivy’s
brother burned down a motel. Ivy came into DFPS’s care after law enforcement
raided a group of hotel rooms and found Ivy alone with her brother, while Mother
was sleeping in a different hotel room. The room where Mother was found also had
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illegal drugs and guns. Mother stated at the time of this incident that she could not
pay for the hotel room. A friend of her boyfriend had paid for it, but she and her
children would be moving soon to another location. Both the DFPS caseworker
and Court Appointed Special Advocates volunteer reported difficulty in contacting
Mother.
While the case was pending, Mother was incarcerated from June 2021 until
late August or early September 2021. Mother also continued to use drugs. She
admitted that she used methamphetamines at the time Ivy was removed and again
in November 2021, a couple of months after she got out of jail. See id. (holding
that parent’s illegal drug use and drug-related criminal activity support conclusion
that child’s surroundings endanger her physical or emotional well-being); A.C. v.
Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 705 (Tex. App.—
Austin 2019, pet. denied) (holding that factfinder “is entitled to give ‘great weight’
to a parent’s drug-related conduct, as it is considered a ‘significant factor’
supporting termination.”).
The trial court, acting as the factfinder, could have reasonably concluded
that Mother’s failure to supervise Ivy during the hotel incident exposed her to a
dangerous environment that jeopardized her physical well-being. This evidence,
considered alone or coupled with the unstable home environment created by
Mother’s drug use and criminal acts, was legally and factually sufficient to support
13
the trial court’s finding under subsection (D). See TEX. FAM. CODE
§ 161.001(b)(1)(D); see A.C., 560 S.W.3d at 630–31 (stating standard of review for
legal and factual sufficiency); see also In re D.J.H., 381 S.W.3d 606, 613–14 (Tex.
App.—San Antonio 2012, no pet.) (affirming factual sufficiency of finding under
subsection (D) based on single dangerous incident combined with parent’s “pattern
of criminal activity [that] subjected him to the possibility of incarceration”).
And the same evidence also demonstrated a course of endangering conduct.
Mother’s failure to supervise Ivy, her drug use and criminal behavior, and her
corresponding instability were legally and factually sufficient to allow a reasonable
factfinder to conclude that her course of conduct jeopardized Ivy’s physical and
emotional well-being. See TEX. FAM. CODE § 161.001(b)(1)(E); In re A.C., 560
S.W.3d at 630–31.
Mother argues that there was no clear and convincing evidence that she
engaged in an endangering course of conduct that would support findings under
subsection (E). She asserts that the evidence indicated that she had left Ivy alone
only for approximately 45 minutes while Mother was in another room down the
hall. During that period, however, police raided the hotel rooms and found Ivy and
her brother were staying alone. Mother was found sleeping in another room. And
this was not the first time the children had been found without appropriate
supervision.
14
Mother also argues that DFPS did not admit copies of drug test results.
Lewis’s testimony relating details of three positive drug test results is some
evidence of positive drug tests. Mother did not object to Lewis’s testimony
regarding the positive drug test results. Mother herself admitted that she used
methamphetamine the night of the hotel incident that resulted in Ivy’s removal
from her care. She also admitted using drugs in November 2021, while this case
was pending and just months after she was released from jail. Official copies of her
drug test results are not required to prove her use of illegal drugs or the effect on
her ability to parent. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“[A]
parent’s use of narcotics and its effect on his or her ability to parent may qualify as
an endangering course of conduct.”). Furthermore, continued illegal drug use after
a child’s removal is conduct that jeopardizes parental rights and may be considered
as establishing an endangering course of conduct under subsection (E). In re
C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet. denied). “And where
the record contains evidence that a parent engages in drug use during the pendency
of a termination suit, when he knows he is at risk of losing his children,” such
evidence has been found legally sufficient to support a finding of endangerment
under subsection (E). Id.Mother also argues that her criminal history should not be considered,
because her family assault and burglary charges were dismissed, and her second
15
burglary charge was reduced to misdemeanor criminal trespass. However, as
Mother’s own testimony indicated, the trespass offense resulted in Mother being
jailed from June 2021 until later August or early September 2021. This criminal
activity and its resulting jail time, in addition to her drug use, her failure to
adequately supervise Ivy, and her failure to keep Ivy enrolled in school, is evidence
of conduct that would subject Ivy to instability. See In re M.D.M., 579 S.W.3d 744,
765 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (holding that “[c]onduct that
subjects a child to life of uncertainty and instability endangers the child’s physical
and emotional well-being,” and stating that such conduct includes drug use,
violence, and criminal conduct); In re N.S.G., 235 S.W.3d 358, 367 (Tex. App.—
Texarkana 2007, no pet.) (stating that while imprisonment, standing alone, is
insufficient to constitute endangering course of conduct, it is factor to be
considered on issue of endangerment). The evidence also indicated that Mother
missed multiple visits with Ivy, and only some of those missed visitations were due
to her imprisonment.
Given this evidence, we hold that the trial court could have reasonably
concluded that Mother engaged in an endangering course of conduct and is legally
and factually sufficient to support the trial court’s finding under subsection (E). See
TEX. FAM. CODE § 161.001(b)(1)(E); In re A.C., 560 S.W.3d at 630–31 (stating
standard of review for legal and factual sufficiency).
16
We overrule Mother’s first and second issues.
Because we have concluded that the evidence was sufficient to support the
trial court’s endangerment findings pursuant to subsections (D) and (E), we need
not address the other grounds for termination pursuant to subsections (N) and (O).
See In re N.G., 577 S.W.3d 230, 231, 236–37 (Tex. 2019) (per curiam) (holding
that “[t]o affirm a termination judgment on appeal, a court need uphold only one
termination ground—in addition to upholding a challenged best interest finding—
even if the trial court based the termination on more than one ground”; explaining
that due process and due course of law considerations require appellate court to
review sufficiency of evidence supporting (D) or (E) grounds “when the parent has
presented the issue to the court” because endangerment findings in prior
termination proceedings can be used as basis for termination in subsequent
proceedings involving other children).
Best Interest
In her fifth issue, Mother argues that the evidence was insufficient to support
the trial court’s finding that terminating her parental rights to Ivy was in the child’s
best interest.
The Texas Legislature has set out several factors that courts should consider
in determining whether a child’s parent is willing and able to provide the child
with a safe environment, including: (1) the child’s age and physical and mental
17
vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the
magnitude and frequency of harm to the child; (4) whether the child has been the
victim of repeated harm after the initial intervention by DFPS; (5) whether there is
a history of abusive or assaultive conduct or substance abuse by the child’s family
or others who have access to the child’s home; (6) the willingness of the child’s
family to seek out, accept, and complete counseling services; (7) the willingness
and ability of the child’s family to effect positive environmental and personal
changes within a reasonable period of time; and (8) whether the child’s family
demonstrates adequate parenting skills, including providing minimally adequate
care for the child’s health and nutritional needs, care consistent with the child’s
physical and psychological development, guidance and supervision consistent with
the child’s safety, a safe physical home environment, and an understanding of the
child’s needs and capabilities. TEX. FAM. CODE § 263.307(b).
The Supreme Court of Texas has also set out several non-exclusive factors
that we should consider when determining whether the termination of a parent’s
rights is in the child’s best interest, including (1) the child’s desires; (2) the child’s
current and future physical and emotional needs; (3) the current and future physical
danger to the child; (4) the parental abilities of the person seeking custody;
(5) whether programs are available to assist the person seeking custody in
promoting the best interests of the child; (6) the plans for the child by the person
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seeking custody; (7) the stability of the home; (8) the acts or omissions of the
parent that may indicate the parent-child relationship is not proper; and (9) any
excuse for acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976); In re A.C., 394 S.W.3d 633, 641–42 (Tex. App.—Houston [1st
Dist.] 2012, no pet.).
These factors are not exhaustive, and it is not necessary that DFPS prove all
these factors “as a condition precedent to parental termination.” In re C.H., 89
S.W.3d 17, 27 (Tex. 2002). The absence of evidence concerning some of the
factors does not preclude a factfinder from forming a firm belief or conviction that
termination is in the children’s best interest. In re A.C., 394 S.W.3d at 642.
The best-interest analysis may consider circumstantial evidence, subjective
factors, and the totality of the evidence as well as the direct evidence. In re B.R.,
456 S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.). “A trier of fact may
measure a parent’s future conduct by his past conduct and determine whether
termination of parental rights is in the child’s best interest.” Id.; see In re C.H., 89
S.W.3d at 28 (stating that past performance as parent “could certainly have a
bearing on [parent’s] fitness to provide for” child, and courts should consider prior
history of child neglect in best-interest analysis).
The evidence of endangerment outlined above, including Mother’s drug use,
imprisonment, failure to adequately supervise Ivy, and other instability that
19
resulted in Ivy not being enrolled in school, supports the trial court’s best-interest
finding. See In re C.H., 89 S.W.3d at 27–28 (holding that evidence establishing
predicate grounds under section 161.001(b)(1) also may be relevant to determining
child’s best interest); see also TEX. FAM. CODE § 263.307(b) (best-interest factors
include considerations such as frequency and severity of harm to child, parent’s
history of violent behavior, drug use, or criminal activity, among others).
The evidence also demonstrated that Mother did not make any significant
efforts to complete her family plan of service. See TEX. FAM. CODE § 263.307(b)
(best-interest factors include parent’s willingness to seek out services and
demonstrate ability to provide adequate parenting skills). Mother testified at trial
that she had income and stable housing, but she did not provide any pay stubs or
other evidence to support her testimony. Nothing in the record supported Mother’s
conclusory testimony that she could provide a safe and appropriate home for Ivy.
Regarding Ivy’s current placement, the evidence indicated that her foster
family wanted to adopt her, and Ivy was bonded with them. When Ivy was briefly
removed from her foster home to be placed with a family member, the foster
family continued to visit with Ivy. When the family member died, the foster family
made a smooth transition for Ivy to return to their home. The foster family enrolled
Ivy in school and worked with her to catch up on her missed schooling. This
evidence further demonstrates that termination of Mother’s parental rights was in
20
Ivy’s best interest. See TEX. FAM. CODE § 263.307(b); Holley, 544 S.W.2d at 372
(holding that future plans for child are relevant to best-interest determination).
Mother argues that the evidence is legally and factually insufficient.
Regarding the first Holley factor—Ivy’s desires—Mother contends that there was
no evidence of Ivy’s wishes even though she was old enough to make her desires
known. We observe, however, that the absence of evidence concerning some of the
factors does not preclude a factfinder from forming a firm belief or conviction that
termination is in the child’s best interest. In re A.C., 394 S.W.3d at 642.
Furthermore, “[e]vidence that a child is well-cared for by a foster family or a
proposed adoptive placement, is bonded to the proposed placement, and has spent
minimal time in the presence of the child’s parent is relevant to the best interest
determination and, specifically, is relevant to the child’s desires.” In re M.D.M.,
579 S.W.3d at 770.
Mother further argues that there was no evidence of factors such as current
or future danger to Ivy, Mother’s parental abilities, or programs available to help
Mother. These arguments do not account for the fact that the trial court could
consider circumstantial evidence, subjective factors, and the totality of the
evidence as well as the direct evidence in making its best-interest finding. See In re
B.R., 456 S.W.3d at 616. Although no witness testified explicitly about the
physical danger to Ivy, the evidence of Mother’s past negligence and current drug
21
use and criminal activities allowed the trial court to make inferences regarding
Ivy’s safety and well-being while in Mother’s care. Lewis did not testify regarding
Mother’s parental abilities or programs that might help her, but Lewis did state that
DFPS gave Mother a family plan of service and that Mother completed no
services. Mother argues that she completed a substance abuse assessment, but she
also acknowledges that she did not complete any of the follow-up
recommendations. Lewis testified that she did not receive any documentation to
support Mother’s testimony that she completed the substance abuse assessment or
obtained employment and stable housing.
We therefore conclude—considering the evidence in the light most favorable
to the trial court’s finding and considering all of the evidence, including disputed
and conflicting evidence—that a factfinder could have reasonably formed a firm
belief or conviction that termination of Mother’s parental rights to Ivy was in the
child’s best interest. See TEX. FAM. CODE § 161.001(b)(2); In re E.N.C., 384
S.W.3d at 802; In re H.R.M., 209 S.W.3d 105,108 (Tex. 2006). We hold that the
evidence was legally and factually sufficient to support the trial court’s best-
interest finding.
We overrule Mother’s fifth issue.
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Conclusion
We affirm the trial court’s final decree terminating Mother’s parental rights
to Ivy.
Richard Hightower
Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
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