In the Interest of A. R. a Minor v. Department of Family and Protective Services ( 2023 )

Opinion issued June 27, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-23-00031-CV, NO. 01-23-00032-CV
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IN THE INTEREST OF K.J.B., A CHILD
IN THE INTEREST OF A.R., A CHILD
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Case Nos. 2021-00968J & 2021-00833J
MEMORANDUM OPINION
M.J.R. (Mother) appeals the trial court’s orders terminating her parental rights
to her two sons, K.J.B. and A.R. In her sole issue, Mother contends that the evidence
is factually insufficient to support the trial court’s finding that termination of her
parental rights is in the best interest of the children. We affirm.
Background
These appeals involve two brothers: K.J.B., who was born in June 2014, and
A.R., who was born in January 2016.
A. Procedural History
On March 4, 2021, the Department of Family and Protective Services (the
Department) received an “intake” alleging neglectful supervision of five-year old
A.R. by Mother. Police officers found A.R. walking down a busy street towards
Highway 290. The police report described A.R. as dirty, with hives on his skin, and
wearing a soiled diaper. A.R., who was non-verbal, could not tell officers where he
lived. When police officers eventually located Mother, she appeared to be under the
influence of alcohol or drugs and later tested positive for methamphetamine.
On May 20, 2021, the Department filed its Original Petition for Protection of
a Child for Conservatorship and for Termination in Suit Affecting the Parent-Child
Relationship in Cause No. 2021-00833J. In its petition, the Department requested
that the case be set for a hearing to determine whether A.R. should be removed from
his home and placed in the Department’s temporary managing conservatorship. On
June 10, 2021, the Department filed its Original Petition for Protection of a Child
for Conservatorship and for Termination in Suit Affecting the Parent-Child
Relationship in Cause No. 2021-00968J, seeking emergency possession of K.J.B.
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The affidavit of Danitra Fields-Frazier, a Department caseworker, was attached to
the petitions.
In her affidavit, Fields-Frazier stated that Mother had five children but only
A.R. and K.J.B. were still in her care. Her affidavit detailed Mother’s history with
the Department:
• In June 2009, the Department received a referral alleging physical
abuse of another child, J.R., by Mother. When J.R. was born, Mother
tested positive for barbiturates and opiates, and J.R. tested positive for
barbiturates. J.R. was placed with a relative, and Mother went to jail.
• In November 2011, the Department received a “case” alleging physical
abuse of another child, J.S.R., by Mother. The report alleged that
Mother was using crack cocaine while pregnant and tested positive.
J.S.R. was removed from Mother and her parental rights were
terminated in Cause No. 2011-07542J. J.S.R. was later adopted.
• In July 2014, the Department received a “case” alleging physical abuse
of K.J.B. by Mother. The report alleged that Mother knowingly smoked
crack cocaine while in her last trimester of pregnancy with K.J.B. The
allegations were investigated but there was no evidence that Mother
caused a physical injury resulting in substantial harm to K.J.B.
• In August 2014, a report was made alleging neglectful supervision of
K.J.B. by Mother. Police officers were called to Mother’s residence
because Mother and her boyfriend were fighting and Mother was
holding K.J.B. during the fight. Mother tested positive for drugs after
being admitted to a treatment center.
Fields-Frazier stated that Mother continued to place her children in danger
due to her substance abuse history and ongoing drug use, her extensive criminal
history, including drug-related offenses, and her history with the Department
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including the termination of her parental rights to another child. The Department
requested to be named temporary managing conservators of K.J.B. and A.R.
On June 10, 2021, the trial court made the requisite findings to place K.J.B.
in the Department’s emergency possession. Following a full adversary hearing on
the same day, the trial court ordered that A.R. be placed in the Department’s
temporary conservatorship. Following a full adversary hearing, with respect to
K.J.B., the trial court signed an order on July 2, 2021, in which it made the necessary
findings to keep K.J.B. in the Department’s temporary conservatorship.
On July 12, 2021, the Department filed a family service plan for Mother. The
plan stated that the Department’s permanency goal was reunification of the boys
with Mother. It described K.J.B. as a healthy seven-year-old boy with no physical
limitations, developmental delays, or emotional or behavioral health issues. K.J.B.
was placed with his father and stated that he was happy but that he missed Mother.
The plan described A.R. as a healthy five-year old boy with no physical
limitations. The plan stated that A.R. had “severe to profound intellectual disability
and/or autism spectrum disorder with marked to profound deficits in adaptive
functioning in one or more areas: communication, social participation and
independent living across multiple environments.” It stated that A.R.’s cognitive
functioning appeared “to be at or below the moderate intellectual range resulting in
severe and profound deficits in comprehension, achievement, and adaptive
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functioning,” and that he was nonverbal. A.R. had “mild problems with attachment,”
“may have mild problems with separation (e.g., anxious/clingy behaviors in the
absence of obvious cues of danger) or may avoid contact with caregiver in age-
inappropriate way, and “may have minor difficulties with appropriate
physical/emotional boundaries with others.” The plan noted that A.R. had “a
moderate level of problems with emotional control that interferes most of the time
with functioning.” It stated that A.R. “was having problems with parents, siblings,
and/or other family members that were negatively impacting his functioning.
Frequent arguing or difficulty maintaining positive relationships may be observed.”
The plan noted that A.R. “demonstrates a mild level of interpersonal strengths.
[A.R.] has some social skills that facilitate positive relationships with peers and
adults but may not have successfully maintained previous healthy friendships. [A.R.]
is experiencing severe disruptions in his social relationships. [A.R.] may have no
friends or have constant conflict in relations with others or have maladaptive
relationships with others. The quality of the [A.R.’s] social relationships presents
imminent danger to his safety, health, and/or development.” The report stated that
A.R. was placed in a foster home and had “adjusted well to his placement and enjoys
being around other children.” The Department’s goal was for Mother to “get her
substance use treated and under control,” obtain employment to be able to provide
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the basic necessities for herself and her children, and be able to provide the children
with structure, supervision, and a safe and stable home.
To achieve these goals, the Department’s family service plan required that
Mother:
(1) refrain from engaging in criminal activity,
(2) maintain employment and provide payroll stubs to her caseworker,
(3) maintain safe and stable housing for a minimum of six consecutive
months,
(4) enroll A.R. in school,
(5) connect with the autism community and join an autism spectrum disorder
group,
(6) educate herself on how to parent a child with special needs,
(7) submit to random urinalysis and hair follicle testing,
(8) continue attending outpatient treatment,
(9) complete a drug assessment,
(10) complete a domestic violence assessment due to past allegations of
intimate partner violence,
(11) participate in individual therapy and follow all recommendations, and
(12) participate in psychosocial and psychiatric evaluations.
On July 21, 2021, the trial court held a status hearing in K.J.B.’s and A.R.’s cases
and approved the Department’s family service plan for Mother.
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On November 29, 2022, shortly before trial, the Department filed its final
permanency report with the court which provided additional details about K.J.B. and
addressed Mother’s compliance with her family service plan. The report stated that
K.J.B. was initially placed with his father but was later removed from his father’s
home in November 2021 after his father “packed up all his belongings and left and
stated that he was no longer going to be taking care of [K.J.B.] . . . .” and told the
Department that his mother could care for K.J.B. K.J.B.’s paternal grandmother
called the Department to inform them that she had been diagnosed with brain cancer
and was not able to care for K.J.B., and that the Department would need to find
another placement for him. K.J.B. was placed in a foster home in November 2021
and later moved to the same foster home where A.R. was placed in July 2022. The
report described K.J.B. as a happy, healthy eight-year old boy who enjoyed watching
YouTube, liked riding his bike and playing with his friends, and loved animals. The
report noted that after a follow-up appointment with his pediatrician in July 2021,
K.J.B. showed signs of a recurring eating disturbance and qualified for mental health
services. The report stated that, in August 2021, a psychologist diagnosed K.J.B.
with “adjustment disorder with anxiety, attention deficit/hyperactivity disorder,
combined presentation, child neglect, confirmed.”
Regarding Mother, the report stated that Mother had refrained from engaging
in criminal activity from August 2021 through September 2022. In October 2022,
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however, Mother was arrested for “prostitution w/3rd or more.” The report stated
that Mother sporadically provided her caseworker with proof of income. From
January through May 2022, she provided proof that she was receiving government
assistance and that her boyfriend received income. However, Mother failed to
provide proof of income for the six months leading up to trial, from June through
November 2022.
As to housing, Mother failed to provide proof of stable housing to her
caseworker from September through December 2021, but she provided proof of
housing in January and February of 2022. The report showed that, in April 2022,
Mother requested housing through the Star of Hope program. From May through
July 2022, she lived with her mother while waiting for housing through Star of Hope.
In August 2022, Mother informed the Department she was seeking housing through
a program called “The Palace.” However, in October 2022, Mother told her
caseworker that “The Palace” was no longer working with her and she was homeless.
As of November 2022, the month before trial, Mother remained homeless.
The report showed that Mother initially made progress with her substance
abuse treatment. In September 2021, she was working on completing her outpatient
treatment at Santa Maria. In October 2021, Mother decided to admit herself into
Santa Maria’s thirty-day inpatient program because she was drinking and fighting
with her boyfriend. From January to April 2022, Mother was participating in an
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outpatient program with the Bes Group. However, in June or July 2022, Mother was
unsuccessful in completing the program due to a positive drug test. Following
another substance abuse assessment, the Department recommended that she
complete eight individual substance abuse counseling sessions. On October 7, 2022,
Mother failed to show up for her counseling session. The report stated that Mother
was not in contact with her substance abuse counseling provider, and the provider
was unable to reach Mother to reschedule her session.
The report showed that Mother initially complied with the mandatory random
drug testing. She tested negative from August 2021 through May 2022, although she
failed to show up for two tests in February and March 2022. She tested negative in
March and April 2022 but tested positive for cocaine in May 2022. Following the
positive test, Mother failed to show up for requested testing every month from June
through November 2022.
B. Trial
Trial began on December 7, 2022. Two witnesses testified: Molly Moser, a
Department caseworker, and L.P., the boys’ foster mother. Mother did not appear.
K.J.B.’s father and A.R.’s father also failed to appear at trial.
Moser testified that she had been assigned to work on K.J.B.’s and A.R.’s
cases for a little over a year. Moser last spoke to Mother two days before trial and
told her that the final trial date was set for December 7.
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Moser testified that, on November 4, 2022, Mother called her and told her that
she was homeless and living in her son’s car and that she may not be able to
participate in visitation. Moser told Mother that if she was able to find transportation
to visitation, Moser would ensure that the visit would happen.
Moser testified that the Department requested that Mother submit to drug
testing on November 8, 2022, but Mother did not show up. Moser testified that a “no
show” to a requested drug test is considered a positive test. Moser stated that Mother
also did not appear for requested drug tests on July 7, August 10, September 8,
September 12, October 6, and October 26, 2022. In June 2022, Mother submitted to
a hair follicle test and tested positive for cocaine. Moser testified that at the
permanency hearing on August 17, 2022, the trial court ordered Mother to submit to
drug testing, but she did not show up.
Moser testified that the Department removed the boys from their home after
police officers found A.R., who was then five years old, walking along the feeder
road of Highway 290 and dressed in a diaper. She testified that A.R., who is special
needs and was diagnosed at an early age with autism, is nonverbal and was unable
to tell the officers who his mother was or where he lived. When the officers located
Mother, she appeared to be under the influence of drugs or alcohol and later tested
positive for methamphetamines.
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Moser testified that Mother also failed to comply with the Department’s
family service plan. She testified that Mother’s illegal drug use constituted conduct
that was harmful to her children as well as a violation of her court-ordered service
plan. Moser stated that, as of November 2022, Mother did not have a stable home or
employment. Moser testified that Mother had been visiting the children regularly.
Moser testified that Mother relinquished her parental rights to another child, J.L.R.,
in 2012. The court then recessed the trial to allow the parents an opportunity to be
present.
On December 16, 2022, the trial resumed. Mother again failed to appear.
Moser testified that Mother had a pending criminal charge at the time of trial
for “prostitution for a third or more offense.” Moser testified that, in 2022, Mother
posted several photos of A.R. with his shirt off on Facebook. In her posts, Mother
stated that A.R.’s eczema was not being taken care of because he was having
outbreaks and that he had never been as skinny in his life as he was in the photos.
Mother stated in her posts that she did not believe that A.R. was being treated
properly and asked others for their opinions. Moser testified that Mother received a
lot of comments on her post. Mother also commented on Facebook that she has never
missed visitation with the boys, and that the Department is “racist,” “mean,” and
“unhelpful” and has done nothing to help her get her children back and is only trying
to take them away from her. Moser testified that the Department was concerned that
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Mother was inappropriately posting edited photos of her children and promoting
disinformation about her open cases with the Department and the quality of care
K.J.B. and A.R. were receiving in their foster home. Moser testified that she visited
A.R. every month and that the photos did not reflect A.R.’s condition at all. On
December 6, 2022, A.R. was seen by his pediatrician who stated that A.R., who was
previously classified as overweight, was now within his normal weight range.
K.J.B. and A.R. were placed in the same foster home at the time of trial.
Moser testified that A.R. had been in the foster home since February 2022 and K.J.B.
was placed in the same home in July 2022. She stated that the boys’ needs were
being met in their foster placement, both boys were doing very well, and they were
attending school. She testified that K.J.B. and A.R. were evaluated regularly by their
medical providers. Moser testified that the Department was seeking termination of
Mother’s parental rights to K.J.B. and A.R. due to Mother’s endangering conduct
and her failure to comply with her court-ordered service plan.
On cross-examination, Moser testified that while Mother did not appear at
trial and had some “falling off” from the service plan, she had previously been fairly
active with her plan. She testified that Mother completed a substance abuse
assessment in June 2022, and that she enrolled herself in an inpatient program
although the recommendation had only been for outpatient services. Moser testified
that Mother later re-engaged in outpatient services and had only a few more sessions
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to attend to be successfully discharged, and that she successfully completed an
individual therapy program. Mother provided Moser with three paycheck stubs
during the pendency of the case showing that she was employed in home healthcare.
Moser testified that Mother completed all but one session of her domestic violence
treatment program.
Moser testified that Mother submitted to monthly drug testing from the
beginning of the cases through June 2022, and that she only tested positive for drugs
once during that time. Mother later admitted to using drugs and began substance
abuse treatment again. Moser testified that Mother completed the special needs
parenting classes and joined a support group for parents of children with autism,
required under the plan. She testified that Mother was consistent with her visitation
with the boys for the most part, and she brought food, drinks, and art projects to keep
the boys entertained for the four-hour visits. Moser observed that Mother was loving
and bonded with the children during her visits.
Moser testified that although A.R. is still primarily nonverbal, his verbal skills
have improved a lot since he has been in his foster placement. He is now able to read
books, answer “yes” and “no,” and say his name. She testified that Mother was
unhappy and worried for K.J.B.’s safety when he was placed with his father because
she felt that his needs would not be met.
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Moser testified that the foster parent has not expressed an interest in adopting
A.R. She agreed that it would be challenging to find an adoptive home for A.R. but
stated that the Department recently sent out a legal broadcast for A.R. and intended
to send out a nationwide broadcast for both siblings so they could remain together.
Moser testified that the Department had received one home study, but she did not
know the status of that study. Moser also testified that she received information that
a teacher at K.J.B.’s school expressed interest in adopting both boys.
Moser testified that when A.R. came into the Department’s care, he was a
“wild” child and ran outside any time that a door opened. She testified that, during
one of her visits, A.R. darted outside and Mother could not handle his behavior.
When A.R. was placed in his first foster home, he was entirely non-verbal, flung
things across the room, threw tantrums, hit himself and tried to strike adults, broke
things, and ate with his hands. Moser testified that after A.R. was placed in his first
foster home, his behavior drastically changed and he flourished in the placement.
Moser testified that at the time K.J.B. came into the Department’s care, he
was being neglected educationally and was very behind in school. Moser stated that
Mother was so overwhelmed trying to handle A.R. that she was unable to care for
K.J.B. Moser testified that at the time of the children’s removal, Mother was living
with her boyfriend at his apartment. Mother and her boyfriend had a domestic
violence disturbance that prompted Mother and the children to move out of her
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boyfriend’s apartment. The boyfriend later informed the Department that Mother
had returned to prostitution, and he sent the Department sexually explicit photos of
Mother that she had posted on a website. Moser stated that Mother was charged with
prostitution for the third time. She testified that Mother’s conduct posed a danger to
the children because it would expose them to strangers in their home and put them
at risk of sexual abuse.
Moser testified that the boys are currently in a loving foster home with parents
who are preschool teachers and own a daycare. She stated that while the foster
placement informed her that they are not seeking adoption they told the Department
that they will keep the boys as long as necessary. She stated that when she learned
of Mother’s allegation that A.R. was being starved, she went to the foster home and
observed that it was full of food and toys and that A.R. was acting normally. During
her visit, Moser read a book with A.R., and he sang “Frozen” on a karaoke machine
and played archery outside. She testified that A.R. is learning sign language as well
as his colors, letters, and numbers.
The foster mother testified that A.R. came into her home in February 2022
and K.J.B. was placed with her in July 2022. When A.R. was initially placed with
her, he was rambunctious and impulsive. She stated that A.R. was currently
receiving occupational therapy, speech therapy, and play therapy. She stated that
since A.R. has been in her home, she has noticed a big difference in his conduct. She
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stated that he learns something new every day. She testified that A.R. is sweet and
that he is still impulsive but not as much as when he was first placed with her. The
foster mother saw Mother’s posts of A.R. on Facebook and felt that they were not
accurate. She stated that A.R. loves to eat, and that he loves bananas, rice, and beans,
but that he does not like bread. She testified that K.J.B. is doing well in school and
his grades are improving. She stated that although she does not plan to adopt K.J.B.
and A.R., they can stay with her for as long as necessary until the Department is able
to find an adoptive placement for the boys. The foster mother stated that Mother has
thanked her numerous times for taking such good care of K.J.B. and A.R. and has
asked her on multiple occasions if she would adopt them. The foster mother said she
would not have any issue with Mother staying in communication with K.J.B. and
A.R. after their cases concluded.
On December 30, 2022, the trial court signed a final decree of termination in
Cause No. 2021-00968J, finding that clear and convincing evidence existed to
support a finding under Texas Family Code Sections 161.001(b)(1) (D), (E), and
(O), and that termination of Mother’s parental rights to K.J.B. was in the best
interests of the child.1 On December 30, 2022, the trial court signed a final decree of
termination in Cause No. 2021-00883J, finding that clear and convincing evidence
1
The trial court also terminated K.J.B.’s father’s parental rights pursuant to Section
161.001(b)(1)(N) and (O) and found that termination was in the child’s best interest.
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existed to support a finding under subsections Sections 161.001(b)(1)(D), (E), and
(O), and that termination of Mother’s parental rights to A.R. was in the best interests
of the child.2 These appeals followed.
Best Interest of the Child
In her sole issue on appeal, Mother contends that the evidence is factually
insufficient to support the trial court’s findings that termination of her parental rights
is in the best interests of K.J.B. and A.R.3
A. Standard of Review
In a case to terminate parental rights under Texas Family Code Section
161.001, 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
§ 161.001(b). The Department must prove both elements—a statutorily prescribed
predicate finding and that termination is in the child’s best interest—by clear and
convincing evidence. See TEX. FAM. CODE § 161.001(b); see In re E.N.C., 384
S.W.3d 796, 802 (Tex. 2012). The Family Code defines “clear and convincing
2
The court terminated A.R.’s father’s parental rights under Family Code Section
161.002 and found that termination was in the child’s best interest.
3
Mother does not challenge on appeal the trial court’s findings that clear and
convincing evidence existed to support the predicate grounds for termination of her
parental rights to K.J.B. and A.R. under Section 161.001(b)(1)(D), (E), and (O).
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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.
When assessing the factual sufficiency of the evidence in a termination
proceeding, we consider the entire record, including disputed evidence. In re J.O.A.,
283 S.W.3d 336, 345 (Tex. 2009). The evidence is factually 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 fact finder is the
sole arbiter when assessing the credibility and demeanor of witnesses. See id. at 109.
B. Applicable Law
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
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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).
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:
(1) the desires of the child;
(2) the present and future physical and emotional needs of the child;
(3) the present and future emotional and physical danger to the child;
(4) the parental abilities of the persons seeking custody;
(5) the programs available to assist those persons seeking custody in
promoting the best interest of the child;
(6) the plans for the child by the individuals or agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate the existing parent-
child relationship is not appropriate; and
(9) any excuse for the parent’s acts or omissions.
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Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are not
exhaustive, and evidence is not required on all of them 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.
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;
whether there is a history of substance abuse by the child’s family or others who
have access to the child’s home; 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; whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and
nutritional care, a safe physical home environment, protection from repeated
exposure to violence even though the violence may not be directed at the child, 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.
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C. Analysis
Mother argues that the evidence was factually insufficient to support the trial
court’s findings that termination of her parental rights was in K.J.B.’s and A.R.’s
best interests. She argues that there was no evidence or testimony elicited showing
that their current foster placement wished to adopt the children or that the children
were adoptable.
1. Placement Plans
While evidence of placement plans and adoption are certainly relevant to a
best interest analysis, a lack of evidence about definitive plans for permanent
placement and adoption cannot be the dispositive factor. In re C.H., 89 S.W.3d 17,
28 (Tex. 2002). Otherwise, best interest determinations would regularly be subject
to reversal on the sole basis that an adoptive family cannot yet be located. Id.Instead, we ask whether, on the entire record, a factfinder could reasonably form a
firm conviction or belief that termination of the parent’s rights is in the child’s best
interest—even if the agency is unable to identify with precision the child’s future
home environment. See id.Here, although the foster parent testified that she did not intend to adopt
K.J.B. and A.R., she testified that the boys could remain in their foster placement
with her for as long as necessary while the Department sought a permanent
placement for them. Moser testified that the boys are currently in a loving foster
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home where all their needs are being met and that the foster parents are preschool
teachers and own a daycare. Moser testified that the Department had sent out a legal
broadcast for A.R. and that it intended to send out a nationwide broadcast for both
siblings so they could remain together. She testified that the Department had already
received one home study although she did not know the status of that study. She had
also recently learned that a teacher at K.J.B.’s school expressed interest in adopting
both boys. This factor does not weigh against termination.
2. Children’s Needs and Parental Abilities of Those Seeking Custody
In addition to the evidence showing that K.J.B.’s and A.R.’s foster placement
was meeting all their needs—medical, emotional, psychological, and nutritional—
the evidence showed that the boys were thriving in their current foster placement.
Moser testified that when K.J.B. came into the Department’s care, he was
being neglected educationally and was very behind in school. Moser stated that
Mother was so overwhelmed trying to handle A.R. that she was unable to care for
K.J.B. K.J.B.’s foster mother testified that since his placement with her, he is doing
well in school and his grades are improving.
Regarding A.R., the evidence showed that he had “severe to profound
intellectual disability and/or autism spectrum disorder with marked to profound
deficits in adaptive functioning in one or more areas: communication, social
participation and independent living across multiple environments.” A.R.’s
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cognitive functioning appeared “to be at or below the moderate intellectual range
resulting in severe and profound deficits in comprehension, achievement, and
adaptive functioning,” and he was nonverbal. A.R. was removed and placed in the
Department’s care when he was five years old after police officers found him
wandering along the feeder road of Highway 290, covered in hives, and dressed in a
soiled diaper. A.R. is nonverbal and was unable to tell the officers who his mother
was or where he lived. When the officers located Mother, she appeared to be under
the influence of drugs or alcohol and later tested positive for methamphetamines.
Moser testified that when A.R. came into the Department’s care, he was a
“wild” child who ran the moment a door opened. When A.R. was placed in his first
foster home, he was entirely nonverbal, flung things across the room, threw
tantrums, hit himself and tried to strike adults, broke things, and ate with his hands.
Moser testified that after A.R. was placed in his first foster home, his behavior
drastically changed and that he was flourishing in the placement. A.R. was learning
sign language as well as his colors, letters, and numbers. A.R. was receiving
occupational therapy, speech therapy, and play therapy in his foster placement.
In addition to the evidence above, we may consider the parent’s past
performance as a parent in evaluating her present abilities to provide for the child.
See In re C.H., 89 S.W.3d at 28. Although evidence of past misconduct or neglect
alone may not be sufficient to show present unfitness, a factfinder may measure a
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parent’s future conduct by her past conduct indicating that it is in a child’s best
interest to terminate her parental rights. See In re A.N.D., No. 02-12-00394-CV,
2013 WL 362753, at *2 (Tex. App.—Fort Worth Jan. 31, 2013, no pet.) (mem. op.).
Here, the record showed that another child, J.S.R., was removed after Mother tested
positive for crack cocaine during her pregnancy. Her parental rights were terminated
and J.S.R. was later adopted. See In re N.E., No. 01-22-00739-CV, 2023 WL
2530197, at *9 (Tex. App.—Houston [1st Dist.] Mar. 16, 2023, pet. denied) (mem.
op.) (concluding evidence showing that mother’s parental rights were previously
terminated to another child based on trial court’s finding, among others, that Mother
had engaged in conduct which endangered physical or emotional well-being of child
was past conduct indicating termination was in child’s best interest). These factors
weigh in favor of termination. See Holley, 544 S.W.2d at 372; TEX. FAM. CODE §
263.307(b).
3. Present and Future Emotional and Physical Danger to Children
and Stability of Home
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.). A fact finder may infer that past conduct endangering the
well-being of a child may recur in the future if the child is returned to the parent
when assessing the best interest of the child. In re D.M., 452 S.W.3d 462, 471 (Tex.
App.—San Antonio 2014, no pet.).
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The evidence showed that Mother had an extensive history with the
Department involving repeated reports of abuse and neglect because of her drug use.
The Department received reports in 2009, 2011, and two reports in 2014, alleging
Mother physically abused and neglected previous children, as well as K.J.B.,
because of her drug use. In 2009, Mother and one of her children tested positive for
barbiturates and Mother tested positive for opiates, and Mother went to jail as a
result. In 2011, Mother used cocaine while pregnant with another child which
resulted in the child being removed and her parental rights being terminated. In 2014,
Mother tested positive for cocaine while pregnant with K.J.B. One month later, the
Department received a report that Mother was holding K.J.B. during a domestic
violence incident involving her boyfriend. Mother later tested positive for drugs in
May 2022 after she was admitted to a substance abuse treatment center. She also
failed to show up for monthly drug testing from June through November 2022. Given
her history of substance use, and her positive result in May 2022, the trial court could
have concluded that the reason she regularly failed to appear for drug testing in the
months leading up to trial was that she was continuing to use illegal drugs. See In re
J.H.G., No. 01-16-01006-CV, 2017 WL 2378141, at *6 (Tex. App.—Houston [1st
Dist.] June 1, 2017, pet. denied) (mem. op.) (noting that parent’s refusal to submit
to drug testing may be treated as if parent would have been positive for illegal drugs).
The evidence also showed that Mother was charged with “prostitution w/3rd or
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more” in October 2022, and she did not have a stable home or employment as of
November 2022, the month before trial.
The evidence of Mother’s drug use, criminal activity, and instability are
indicative of the present and future physical and emotional dangers posed to both
children. See In re Z.H., No. 14-19-00061-CV, 2019 WL 2632015, at *6 (Tex.
App.—Houston [14th Dist.] June 27, 2019, no pet.) (mem. op.) (considering
parent’s drug use in the context of evaluating the present and future emotional and
physical danger to the child); In re N.J.H., 575 S.W.3d 822, 834–35 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied) (holding that parent’s past pattern of drug use
weighed in favor of finding that termination was in child’s best interest under
several Holley factors, and was relevant to his parenting abilities, stability of home
he would provide, emotional and physical needs of his child, and emotional and
physical danger in which child would be placed); In re E.R.W., 528 S.W.3d 251,
266 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (noting factfinder can give
“great weight” to “significant factor” of drug-related conduct); In re O.N.H., 401
S.W.3d at 684 (stating parent’s past conduct was probative of his future conduct
when evaluating child’s best interest); see also In re D.M., 452 S.W.3d at 471(stating court may infer that past endangering conduct may recur if child was
returned for purposes of determining whether termination is in child’s best interest).
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These factors weigh in favor of termination. See Holley, 544 S.W.2d at 372; TEX.
FAM. CODE § 263.307(b).
In view of the entire record, we conclude that the disputed evidence is not so
significant as to prevent the trial court from forming a firm belief or conviction that
termination of Mother’s parental rights is in the best interests of K.J.B. and A.R. See
In re J.O.A., 283 S.W.3d at 345. We overrule Mother’s sole issue in K.J.B.’s and
A.R.’s cases.
Conclusion
We affirm the trial court’s final decrees of termination in both cases.
Amparo Guerra
Justice
Panel consists of Chief Justice Adams and Justices Farris and Guerra.
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