In the Interest of A. M. v. Department of Family and Protective Services ( 2023 )

Opinion issued March 14, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00689-CV
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IN THE INTEREST OF A. M. a/k/a F. E. M., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2021-01237J
MEMORANDUM OPINION
Appellant mother challenges the trial court’s order terminating her parental
rights to her minor child, A.M. a/k/a/ F.E.M. (“Frank”), and awarding the
Department of Family and Protective Services (the “Department”) sole managing
conservatorship of him. Mother contends that the evidence is legally and factually
insufficient to support the trial court’s findings that she: (1) failed to comply with
the provision of a court order that specifically established the actions necessary to
obtain return of the child; and (2) used illegal drugs in a manner that endangered
the child and failed to complete a court ordered substance abuse program. See TEX.
FAM. CODE § 161.001(b)(1)(O) (service plan), (P) (substance abuse). She also
contends that there is legally and factually insufficient evidence to support the
court’s finding that termination of her parental rights is in the best interest of the
child. Id. § 161.001(b)(2). We affirm.
Background
In April 2021, law enforcement responded to a motel concerning a drug
overdose. Mother and father were found unconscious in a parking lot. It was
suspected that they had overdosed on PCP, and they were taken to the hospital.
The Department was contacted when a child, O.H. (“Oscar”), was found strapped
in a car seat in the motel. He was placed in the Department’s temporary managing
conservatorship.
One month later, mother gave birth to Frank, who is the subject of this suit.
Frank and Oscar have the same parents. At the time of Frank’s birth, his meconium
tested positive for cocaine. Frank was placed with his paternal grandmother. The
Department was appointed temporary managing conservator of Frank.
The trial court entered an order establishing the actions necessary for mother
to obtain the return of Frank. The Department’s plan required mother to:
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(1) maintain employment for more than six months; (2) maintain stable housing for
more than six months; (3) complete parenting classes; (4) refrain from engaging in
any illegal activities; (5) attend all court hearings; (6) submit to random urinalysis
drug testing twice a month and hair follicle testing once every three months;
(7) follow recommendations of a psychosocial evaluation; (8) follow
recommendations of a psychiatric evaluation; and (9) sign a release of information.
The plan noted that mother was unwilling to work services at the time and that she
had tested positive for illegal substances, continued to use them while pregnant,
and suffered from mental health issues.
A. Trial
The case proceeded to trial in August 2022. Before testimony began, the
father signed a voluntary relinquishment affidavit.1 In reviewing it, the trial court
took judicial notice of Oscar’s case and stated that mother’s rights to Oscar had
been terminated pursuant to subsection (O), no child support had been ordered, and
the case was on appeal. The trial court then proceeded to hear testimony in the trial
regarding mother’s rights to Frank. The court heard testimony from the
Department’s supervisor, the child advocate assigned to the case, and the paternal
grandmother.
1
Father’s parental rights were also terminated and are not the subject of this appeal.
3
1. Department Supervisor
The Department supervisor testified that the Department became involved
with Frank’s parents when Frank’s older brother Oscar was found in a motel room,
strapped in a car seat. Oscar’s parents were found unconscious outside the motel
room and taken to a hospital. At the time, mother was pregnant with Frank, and she
gave birth to him one month later. Frank’s meconium tested positive for cocaine,
and he was removed from his parents’ care at birth. He was placed with his
paternal grandmother. Oscar had also been placed with the paternal grandmother.
The supervisor testified that mother had prior involvement with the
department for physical abuse of one of her other children and that her parental
rights to Oscar were terminated in March 2022. The circumstances of that
termination included that mother denied drug use, continually tested positive for
drugs, and was discharged from services without completing them successfully.
She did not have stable housing or employment.
Regarding Frank, the supervisor confirmed that a family service plan had
been made an order of the court, yet mother had not successfully completed her
services. Specifically, mother had not provided proof of participating in an anger
management class or individual counseling, and she was in denial of her drug use,
though she engaged in substance abuse treatment. The supervisor had spoken to
mother’s drug abuse therapist a few days before trial, and she awaited paperwork
4
regarding mother’s unsuccessful discharge from substance abuse treatment. The
supervisor commented that mother had been offered substance abuse treatment in
Oscar’s case. Therefore, she had been offered services since at least July 2021,
though she never successfully completed a treatment program. When mother spoke
with the supervisor on the phone a month before trial, mother told the supervisor
that she had successfully completed substance abuse treatment. The supervisor
informed mother that she had spoken with the drug counselor who stated that
mother would be unsuccessfully discharged from the program due to her denial of
drug use.
Regarding drug testing, the supervisor testified that although mother was
ordered to refrain from drug use, mother consistently tested positive. Most
recently, mother tested positive in May 2022 and did not appear for an ordered
drug test on June 22, 2022. When the supervisor spoke with mother about the
positive result, mother stated that she did not use drugs.
The supervisor testified that mother gave her four weekly paycheck stubs
from James Coney Island, a fast-food restaurant. In the supervisor’s opinion, two
of them may have been created because they did not print the same way. The
paychecks covered one week in March, two nonconsecutive weeks in April, and
one week in June 2022. They ranged from $45.59 to $142.90 each. The supervisor
believed that based on the amount mother was receiving in each check, she was
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working approximately 1.5 days a week. The supervisor did not know whether
mother had remained employed because she had not provided additional proof of
employment, and mother never provided paychecks for the month of May.
Regarding housing, mother provided the supervisor with a handwritten note
from her grandmother indicating that mother resided with her. The supervisor
received the note the month before trial. The supervisor testified that she had
visited the home several times, and mother was never there. The supervisor was
concerned that mother did not reside with her grandmother.
Regarding visits with Frank, the supervisor stated that mother had not been
visiting with Frank because there is a court order of no contact. She testified that at
the last hearing prior to trial, the no contact order was extended to add Frank’s
caregivers, including his paternal grandmother, after mother had threatened and
harassed them. Notwithstanding the order, mother continued to contact Frank’s
paternal grandmother and show up at her house unannounced. The supervisor
testified that mother contacted the paternal grandmother the week before trial
regarding mother’s behavior, and the supervisor had informed the grandmother to
call the police if mother appeared at her home. Mother had not provided financial
support for Frank since his birth, except for a few gift cards left in the caregiver’s
mailbox shortly before trial.
6
The Department supervisor mentioned that mother can be very aggressive.
She testified that on multiple occasions, mother called her nonstop, as frequently as
45 times in 2 to 3 minutes. When the supervisor eventually temporarily blocked
mother’s number so the calling would stop, mother immediately called from
another number.
The supervisor stated that the Department made reasonable efforts to attempt
to reunify mother with Frank by offering services, speaking with her numerous
times, and referring her to additional providers whenever she was discharged from
a program. The supervisor did not believe that mother could provide a stable
environment for Frank. The supervisor stated that mother can be very aggressive,
and that her behavior was not safe for a child.
The supervisor stated that when Frank was born, mother refused to complete
any paperwork that would have allowed him to obtain a birth certificate. In the
absence of a birth certificate, Frank was unable to obtain a social security card.
According to the Department supervisor, Frank was thriving, meeting all his
milestones, and there were no concerns with his placement with his paternal
grandmother. Frank, Oscar, and two older siblings also lived with the paternal
grandmother, whose husband and daughter both lived in the house and helped with
childcare. Frank was bonded to his caregivers, and all four children enjoyed
playing together. The supervisor believed termination was in Frank’s best interest
7
as he was in a stable, loving, drug-free home with his brothers, and all his needs
were being met.
On cross-examination, the supervisor acknowledged that mother completed
some of the assigned tasks from the family service plan. Mother signed a release of
information, provided a few paychecks from James Coney Island, and provided a
handwritten letter stating she lived with her grandmother. Mother completed
parenting classes and psychosocial and psychiatric evaluations. Mother had
participated in substance abuse treatment. She was referred to an agency for an
assessment and was diagnosed in July 2021 with cannabis and amphetamine use.
She was discharged a month later for failure to attend. The Department then
referred mother to a second agency who diagnosed mother with alcohol and
cocaine dependence. Mother was discharged a few months later due to
nonattendance. Finally, mother was referred to a third agency in April 2022, and
she was unsuccessfully discharged from that program due to her denial of drug use.
2. Child Advocate
The child advocate testified that she had been on the case for about eight
months and that the agency agreed with the Department’s recommendations to
terminate mother’s parental rights and for Frank to remain with his paternal
grandmother. The child advocate stated that both a previous coordinator and a
former volunteer attempted to contact mother and were unsuccessful.
8
The child advocate said her termination recommendation was based on
concerns of mother’s inability to complete services and her aggressive and hostile
behavior. The child advocate stated that mother has called and made threats to the
paternal grandmother on multiple occasions. Frank has been with his grandmother
for his entire life and is well bonded, and it would not be in his best interest to
remove him from the placement.
The child advocate stated that when Frank came into care, he experienced
residual effects of drugs in his system. He shook for about five or six weeks. At the
time of trial, at 13 months old, he was developmentally on target and doing well.
3. Paternal Grandmother
The paternal grandmother testified that Frank is doing well in her home and
that he attends daycare. She stated that she can meet his emotional and physical
needs and that her long-range goal is to adopt Frank. She had not been able to get a
social security card for Frank, and she intended to change his name.
She stated that when Frank came to her home, he was four days old. Due to
being born with drugs in his system, Frank often shook. The paternal grandmother
took Frank to the doctor, who advised her to go to the emergency room if the
shaking became violent. The shaking never became violent and after six weeks, it
stopped.
9
The paternal grandmother testified regarding harassment by mother. She
stated that after a status hearing mother came to the grandmother’s house. The
paternal grandmother was not there, so mother went to another family member’s
house down the street and demanded the return of her children. The family
member told the paternal grandmother that mother looked distraught and high.
Mother left but said she would be back to get her children. The paternal
grandmother testified that mother’s behavior is disturbing and counterproductive to
Frank’s safety and wellbeing.
The paternal grandmother testified that she lives with her husband and her
adult daughter, who moved in to help them raise the four grandchildren in their
care. Frank is bonded to his siblings and relatives.
4. Mother
Mother was initially in attendance at the Zoom trial. She began talking out
of turn during the Department supervisor’s testimony. She stated that she could not
hear, and she was going to leave. The court admonished mother not to interrupt
and that she would get a chance to speak if she remained in the hearing. When
mother interrupted a second time, stating that she was going to leave, the court
instructed the reporter to remove mother from the hearing.
10
Near the end of the Department’s witnesses, mother’s attorney texted mother
to see if she would be rejoining the trial. Mother’s attorney informed the court that
mother did not respond. Mother never rejoined the hearing.
B. Trial Outcome
The trial court terminated mother’s parental rights pursuant to subsections
(O) and (P). See TEX. FAM. CODE § 161.001(b)(1)(O), (P). The court found that
termination was in Frank’s best interest. The court entered a permanent injunction
against mother, stating that she was to have no contact with Frank or his
caregivers. Mother appealed.
Sufficiency of the Evidence
On appeal, mother challenges the sufficiency of the evidence to support the
trial court’s findings that her rights should be terminated pursuant to subsections
(O) and (P). See TEX. FAM. CODE § 161.001(b)(1)(O), (P). She also challenges the
sufficiency of the evidence to support the trial court’s finding that termination was
in Frank’s best interest. Id. § 161.001(b)(2).
A. Standard of Review
A trial court may order termination of the parent-child relationship if the
Department proves, by clear and convincing evidence, one of the statutorily
enumerated predicate findings for termination and proves that termination of
parental rights is in the best interest of the child. TEX. FAM. CODE § 161.001(b); see
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In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (recognizing 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
Department must prove by clear and convincing evidence both a statutorily
prescribed predicate finding and that termination is in the child’s best interest. Id.
at 803. 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 truth of the allegations sought to be established.” TEX. FAM.
CODE § 101.007.
To assess the legal sufficiency of the evidence in a termination proceeding,
we consider all evidence in the light most favorable to the trial court’s finding and
decide “whether a reasonable trier of fact could have formed a firm belief or
conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002);
see City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). We assume that
any disputed facts were resolved in favor of the finding if a reasonable factfinder
could have done so. J.F.C., 96 S.W.3d at 266. When “no reasonable factfinder
could form a firm belief or conviction” that the matter on which the Department
bears the burden of proof is true, we “must conclude that the evidence is legally
insufficient.” Id. In reviewing the evidence’s factual sufficiency, we consider the
entire record, including disputed evidence. Id. The evidence is factually
12
insufficient if, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have resolved in favor of the finding is so significant that the
factfinder could not reasonably have formed a firm belief or conviction. Id.
We give due deference to the factfinder’s findings, and we cannot substitute
our own judgment for that of the factfinder. See 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 the witnesses. See id. at 109.
B. Predicate Finding Under Subsection 161.001(b)(1)(O)
In her first and second issues, mother contends that the evidence was legally
and factually insufficient to support the trial court’s predicate findings that
termination was warranted under Family Code subsections 161.001(b)(1)(O) and
(P).
Subsection (O) provides that the court may order termination of the parent-
child relationship if the court finds by clear and convincing evidence that the
parent has
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 [Family Code] Chapter 262 for the abuse or neglect
of the child.
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TEX. FAM. CODE § 161.001(b)(1)(O). Thus, pursuant to subsection (O), the
Department must prove that (1) it has been the child’s temporary or permanent
managing conservator for at least nine months; (2) it took custody of the child as a
result of a removal from the parent under Chapter 262 for abuse or neglect; (3) a
court issued an order establishing the actions necessary for the parent to obtain the
return of the child; and (4) the parent did not comply with the court order. See id.
Mother does not dispute that (1) the Department has been Frank’s temporary
managing conservator for at least nine months, (2) the Department had taken
custody of Frank as a result of a removal from the parent under Chapter 262 for
abuse or neglect, and (3) the court-ordered family service plan constituted an order
of the trial court establishing the actions necessary for her to be reunited with
Frank.
Preliminarily, mother argues that the trial court erred by basing its
subsection (O) finding on information contained in the case file from another case,
namely the case terminating her rights to Frank’s older brother Oscar. Mother
asserts that taking judicial notice of the truth of factual statements contained in
pleadings and other documents in the case file for another case was erroneous. “It
is well recognized that a trial court may take judicial notice of its own records in a
cause involving the same subject matter between the same, or practically the same,
parties.” Gardner v. Martin, 345 S.W.2d 274, 276 (1961); In re Shifflet, 462
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S.W.3d 528, 539 (Tex. App.—Houston [1st Dist.] 2015, no pet.). “A trial court
may take judicial notice of its own records in matters that are generally known,
easily proven, and not reasonably disputed.” Shifflet, 462 S.W.3d at 539 (quoting
In re R.S.D., 446 S.W.3d 816, 820 n.4 (Tex. App.—San Antonio 2014, no pet.)
(internal quotation marks and citation omitted)). “Therefore, a court may take
judicial notice that a pleading has been filed in the case, that it has signed an order,
or of the law of another jurisdiction,” but “[a] court may not take judicial notice of
the truth of allegations in its records.” Id. (emphasis in original) (citation omitted).
Mother argues that the trial court based its finding on facts from Oscar’s case, such
as that mother was unsuccessfully discharged from several services, tested positive
for drugs, and had her parental rights terminated to Oscar pursuant to subsection
(O). She argues that without this information, there was insufficient evidence to
terminate her rights to Frank based on subsection (O). We disagree.
Prior to the beginning of testimony, the trial court, in reviewing father’s
voluntary relinquishment affidavit, announced that it was taking judicial notice of
Oscar’s case. The court orally stated that the judgment involving Oscar did not
order child support and that mother’s rights to Oscar were terminated under
subsection (O). These facts were not disputed and were generally known. See
Shifflet, 462 S.W.3d at 539. The remaining facts that mother complains about came
into evidence during mother’s trial regarding Frank. The Department supervisor
15
testified that mother was discharged from three different substance abuse treatment
programs without completing them successfully. She also testified that mother had
tested positive for drugs. Additionally, mother’s drug test results were listed in the
family service plan and permanency report, both of which were admitted into
evidence without objection.
Even without judicial notice of Oscar’s case, the record in this case contains
sufficient evidence to support the trial court’s decision to terminate mother’s rights
to Frank under subsection (O). At trial, the Department supervisor testified that the
agency created a family service plan for mother, which was filed with the court and
made an order of the court. Mother was ordered to (1) complete parenting and
anger management classes, (2) abstain from drugs and complete a substance abuse
assessment and treatment, (3) refrain from criminal activity, (4) sign a release of
information, (5) participate in court hearings, and (6) obtain and maintain stable
housing and employment for six months.
The evidence reflects that mother failed to complete all her court-ordered
services. With respect to employment, mother provided paycheck stubs as proof of
employment for one week in March, three weeks in April, and two weeks in June.
The Department supervisor testified that those were the only paycheck stubs
mother provided. The caseworker dd not believe the mother was employed based
16
on the information she received. Mother did not offer any further evidence to show
that she was indeed employed for six months.
With respect to the requirement that mother test negative for drugs, the
caseworker testified that mother tested positive for drugs continually throughout
the case. She tested positive for cocaine and heroin in her hair in February 2022
and she tested positive for cocaine in May 2022. Mother did not show up for tests
in June and July of 2022. The family service plan, which was admitted into
evidence, listed additional times that mother tested positive for drugs or did not
appear for drug testing.
Finally, with respect to psychosocial and psychiatric evaluations, the
caseworker stated that mother did not follow the recommendations. Mother argues
that this testimony was conclusory, but the testimony demonstrated that mother did
not comply with the service plan. See In re S.N.P., No. 04-20-00372-CV, 2020 WL
7365445 at *2 (Tex. App.—San Antonio Dec. 16, 2020, no pet.) (mem. op.)
(caseworker’s testimony that mother did not complete any required services except
for her psychosocial assessment was a statement of fact and not a conclusory
statement.)
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.), and a
parent’s failure to complete one requirement of her family service plan supports
17
termination under that subsection, In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied). Nonetheless, mother argues that termination
under subsection (O) is not justified based on the affirmative defense found in
Family Code subsection 161.001(d):
(d) A court may not order termination under Subsection (b)(1)(O)
based on the failure by the parent to comply with a specific provision
of a court order if a parent proves by a preponderance of evidence
that:
(1) the parent was unable to comply with specific provisions of
the court order; and
(2) the parent made a good faith effort to comply with the order
and the failure to comply with the order is not attributable to
any fault of the parent.
TEX. FAM. CODE § 161.001(d). Mother argues that she did complete some
requirements, as evidence of substantial compliance with the family services plan.
On appeal, mother does not argue that her failure to complete all the family service
requirements was because she was unable to comply nor does she argue that she
made a good faith effort and her failure to comply was not attributable to her. See
id. On the contrary, the record reflects that mother failed to abstain from using
drugs and that she failed to appear for the last two drug tests before trial. The
record reflects that though mother participated in psychosocial and psychiatric
evaluations, she did not follow the recommendations from those evaluations. The
caseworker testified that mother was discharged from substance abuse treatment
18
due to lack of attendance and denial of her drug use. She did not complete
substance abuse treatment. Mother did not establish by a preponderance of the
evidence that her failure to comply with the service plan was due to her inability to
complete it or not attributable to her. See id.
Applying the applicable standards of review, we hold that the evidence is
legally and factually sufficient to support the trial court’s predicate finding under
subsection (O). See TEX. FAM. CODE § 161.001(b)(1)(O). We further hold that the
evidence is legally and factually sufficient to support a finding by the trial court
that mother failed to carry her burden to prove, by a preponderance of the
evidence, that she made a good-faith effort to comply with the court order and that
her failure to comply with the court order is not attributable to her own fault. See
id. § 161.001(d).
We overrule the portion of mother’s issue challenging the legal and factual
sufficiency of the evidence to support the trial court’s predicate finding under
subsection 161.001(b)(1)(O). Because only one predicate ground is needed to
support a termination order, we need not address the remainder of mother’s issue
challenging the legal and factual sufficiency of the evidence supporting the
predicate finding under subsection 161.001(b)(1)(P). See In re A.V., 113 S.W.3d
355, 362 (Tex. 2003).
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C. Best-Interest Finding
Mother challenges the legal and factual sufficiency of the trial court’s best-
interest finding.
1. Legal Principles
In Holley v. Adams, the Supreme Court of Texas identified several non-
exclusive factors that we consider when determining whether the termination of a
parent’s rights is in the child’s best interest. 544 S.W.2d 367, 371–72 (Tex. 1976).
The factors include: (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 seeking custody; (7) the stability
of the home or proposed placement; (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. Id. These factors are not exhaustive, and it is not
necessary that the Department 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
20
interest. In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no
pet.).
In addition, the Family Code sets out 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
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 the Department;
(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 results
of psychiatric, psychological, or developmental evaluations of the child, the child’s
parents, other family members, or others who have access to the child’s home;
(7) the willingness of the child’s family to seek out, accept, and complete
counseling services; (8) the willingness and ability of the child’s family to effect
positive environmental and personal changes within a reasonable period of time;
and (9) 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
21
environment, and an understanding of the child’s needs and capabilities. TEX. FAM.
CODE § 263.307(b); In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018).
The best-interest analysis may consider circumstantial evidence, subjective
factors, and the totality of the evidence as well as the direct evidence. In re Y.G.,
No. 01-22-00181-CV, 2022 WL 3362953 at *13 (Tex. App.—Houston [1st Dist.]
Aug. 16, 2022, pet. denied) (mem. op.) (citing 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.” B.R., 456 S.W.3d at 616; see 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 [the child]” and indicating courts should consider
prior history of child neglect in best-interest analysis).
2. Analysis
Multiple factors support the trial court’s finding that termination of mother’s
parental rights to Frank was in the child’s best interest.
The evidence showing that mother failed to complete all the tasks and
services required in her service plan not only supports the predicate finding, but it
also supports the trial court’s best-interest finding. See In re E.C.R., 402 S.W.3d
239, 249 (Tex. 2013) (holding that evidence that parent failed to complete court
ordered services can support best-interest finding). In short, “[a] fact finder may
22
infer from a parent’s failure to take the initiative to complete the services required
to regain possession of [her] child that [s]he does not have the ability to motivate
[herself] to seek out available resources needed now or in the future.” J.M.T., 519
S.W.3d at 270.
Despite being required to participate in substance abuse treatment and
refrain from illegal drug use to be reunited with Frank, mother did not refrain from
using illegal drugs. She tested positive for drugs in May of 2022, three months
before trial. She did not appear for drug testing in June or July of 2022. See In re
W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (recognizing
that factfinder could reasonably infer that parent’s failure to complete scheduled
screenings indicated she was avoiding testing because she was using drugs). She
also tested positive in June, July, August, and October of 2021. Additionally, the
Department supervisor testified that mother was unsuccessfully discharged from
substance abuse treatment. Mother’s termination from the program and her positive
drug test three months before trial are particularly probative because Frank was
removed from mother’s care due to mother’s drug use. See TEX. FAM. CODE
§ 263.307(b)(10), (11) (stating courts may consider willingness and ability of the
child’s family to seek out, accept, and complete counseling services and
willingness and ability of child’s family to effect positive environmental and
personal changes within reasonable time); Holley, 544 S.W.2d at 372 (listing as
23
best-interest factors, programs available to assist these individuals to promote best
interest of child and acts or omission of parent that may indicate parent-child
relationship is not proper); J.M.T., 519 S.W.3d at 270 (recognizing that father’s
failure to refrain from illegal drug use and complete substance abuse counseling
and individual therapy supported best-interest finding).
As we have previously recognized, “[p]arental drug abuse reflects poor
judgment and may be a factor to consider in determining a child’s best interest.”
Id.; see TEX. FAM. CODE § 263.307(b)(8) (stating courts may consider whether
there is history of substance abuse by child’s family or others who have access to
the child’s home). Mother’s drug abuse is relevant to multiple Holley factors,
including her parenting abilities and the stability of her home as well as Frank’s
emotional and physical needs now and in the future and the physical danger in
which Frank could be placed no and in the future. See Holley, 544 S.W.2d at 372
(factors two, three, four, and seven); In re N.J.H., 575 S.W.3d 822, 834 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied) (recognizing pattern of drug abuse
relevant to multiple Holley factors).
The trial court could reasonably infer that mother’s drug use would continue
in the future. Mother used drugs while pregnant with Frank, and he was born with
drugs in his system. Mother had positive drug tests throughout the pendency of the
case. Mother denied using drugs to the caseworker after testing positive, and she
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was released from substance abuse treatment for being in denial of her drug use
and lack of attendance. The Department referred mother to multiple service
providers during the pendency of the case. Even though she knew her parental
rights were in jeopardy, mother failed to complete the counseling provided to her.
The evidence supports that mother’s history of illegal drug use, her positive drug
tests, and her lack of completion of therapy supported an inference by the trial
court that mother was at risk for continuing drug use. See J.M.T., 519 S.W.3d at
269.
The evidence regarding mother’s income was scant. Mother provided a few
paychecks, covering five total weeks during the pendency of the case. The
Department supervisor testified that she believed mother worked one or two days a
week, based on the amounts listed on her paystubs. The supervisor also questioned
the veracity of two of the paystubs provided by mother, stating that they did not
print with the same marks as the other three. Mother’s lack of employment is
probative of Frank’s best interest because, “[a] parent who lacks stability, income,
and a home is unable to provide for a child’s emotional and physical needs.” In re
J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *9 (Tex. App.—Houston [14th
Dist.] Feb. 12, 2013, pet. denied) (mem. op.); see Holley, 544 S.W.2d at 372 (best-
interest factors include stability of home and child’s physical and emotional
needs); see also In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007,
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no pet.) (“A parent’s drug use, inability to provide a stable home, and failure to
comply with a family service plan support a finding that termination is in the best
interest of the child.”).
In contrast, the uncontroverted evidence showed that, at the time of trial, the
paternal grandmother, who had cared for Frank for all his life, had a safe and stable
home. The paternal grandmother lived with her husband and together they cared
for Frank and three of his siblings. Frank’s aunt also moved into the home to assist
in caretaking. The witnesses testified that Frank was bonded with his grandparents
and his siblings and that all his needs were met. The paternal grandmother hoped to
adopt Frank. The evidence regarding the paternal grandparent supports the trial
court’s best-interest finding under the following factors: the emotional and
physical needs of the child now and in the future and the stability of the home or
proposed placement. See Holley, 544 S.W.2d at 372 (factors two and seven). We
note that a child’s need for a permanent home has been “recognized as the
paramount consideration in a best interest determination.” In re B.J.C., 495 S.W.3d
at 29, 39 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Frank was thirteen months old at the time of trial. The Holley factor
regarding the desires of the child is neutral in this case. See Holley, 544 S.W.2d at
372 (factor one). Frank’s age does weigh in favor of the best-interest
determination. See TEX. FAM. CODE § 263.307(b)(1) (providing that court may
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consider child’s age and physical and mental vulnerabilities in best-interest
determination); J.M.T., 519 S.W.3d at 270 (noting 14-month-old child’s age
weighed in favor of trial court’s finding that termination was in best interest); see
also In re A.L.B., No. 01-17-00547-CV, 2017 WL 6519969, at *5 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied) (mem. op.) (stating children’s young ages,
five and six years old, rendered them “vulnerable if left in the custody of a parent
unable or unwilling to protect them or to attend to their needs”). When a child is
too young to express his desires, the factfinder may consider that the child has
bonded with the foster family, is well cared for by them, and has spent minimal
time with his parent. In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th
Dist.] 2014, no pet.).
On balance, the evidence showed that the applicable statutory factors and
Holley factors weigh in favor of the trial court’s best-interest finding. After
viewing all the evidence in the light most favorable to the best-interest finding, we
conclude that the evidence was sufficiently clear and convincing that a reasonable
factfinder could have formed a firm belief or conviction that termination of the
parent-child relationship between mother and Frank was in the child’s best interest.
We overrule mother’s challenge to the best interest finding.
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Conclusion
We affirm the trial court’s decree of termination.
Peter Kelly
Justice
Panel consists of Justices Kelly, Farris, and Radack.2
2
The Honorable Sherry Radack, Senior Justice, Court of Appeals, First District of
Texas at Houston, sitting by assignment.
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