M. Y. v. Texas Department of Family and Protective Services ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00780-CV
M. Y., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY
NO. 21-20726, THE HONORABLE BENTON ESKEW, JUDGE PRESIDING
MEMORANDUM OPINION
M.Y. (Mother) appeals the trial court’s order terminating her parental rights to her
three-year-old daughter, E.Y.1 In five issues, Mother asserts that the evidence is legally and
factually insufficient to support the trial court’s findings that statutory grounds for termination
exist, see Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (P), and that termination of her parental
rights is in E.Y.’s best interest, see id. § 161.001(b)(2).2 For the reasons that follow, we affirm
the trial court’s order of termination.
1
For the child’s privacy, we refer to her and her mother by their initials and by their
relationships to each other, and we refer to the child’s approximate age at the time of trial. See
Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
2
The order also terminated the parental rights of E.Y.’s father, who did not file a notice
of appeal and therefore is not a party to these proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2021, the Texas Department of Family and Protective Services received a
report of neglectful supervision of E.Y. while in Mother’s care. Specifically, the report alleged
that Mother was using methamphetamine and that the child was unclean, suffering from a diaper
rash, and had no clean clothes or shoes.
Following an investigation, the Department sought and obtained temporary
managing conservatorship of E.Y. and filed its petition seeking termination of Mother’s parental
rights. The case proceeded to a bench trial in November 2022. At the conclusion of the trial, the
trial court found by clear and convincing evidence that Mother had (1) knowingly placed or
knowingly allowed E.Y. to remain in conditions and surroundings which endangered her
physical and emotional well-being; (2) engaged in conduct or knowingly placed E.Y. with
persons who engaged in conduct which endangered her physical and emotional well-being;
(3) failed to comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of E.Y.; and (4) used a controlled substance in a manner
that endangered the health or safety of the child and failed to complete a court-ordered substance
abuse treatment program. See id. § 161.001(b)(1)(D), (E), (O), (P). The trial court also found by
clear and convincing evidence that termination of Mother’s parental rights was in E.Y.’s best
interest. See id. § 161.001(b)(2). This appeal followed.
STANDARD OF REVIEW
“Proceedings to terminate the parent-child relationship implicate rights of
constitutional magnitude that qualify for heightened judicial protection.” In re A.C., 560 S.W.3d
624, 626 (Tex. 2018). To terminate a parent-child relationship, the Department must prove by
2
clear and convincing evidence that (1) the parent’s acts or omissions constitute at least one of the
enumerated statutory grounds for termination, and (2) it is in the child’s best interest to terminate
the parent’s rights. Tex. Fam. Code § 161.001(b)(1), (2). Clear and convincing evidence is
“the measure or degree of proof that will produce in the mind of the trier of fact a firm belief
or conviction as to the truth of the allegations sought to be established.” Id. § 101.007. “This
heightened proof standard carries the weight and gravity due process requires to protect the
fundamental rights at stake.” In re A.C., 560 S.W.3d at 630. In an appeal from an order
terminating parental rights, we apply a standard of review that reflects this heightened standard
of proof. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
In this context, “[t]he distinction between legal and factual sufficiency lies in
the 2extent to which disputed evidence contrary to the finding may be considered.” In re A.C.,
560 S.W.3d at 631. When evaluating the legal sufficiency of the evidence, we cannot “ignore
undisputed evidence contrary to the finding,” but must otherwise look at the evidence in the light
most favorable to the judgment, which means we must “assume that the factfinder resolved
disputed facts in favor of the finding,” id. at 630-31, and “disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible,” In re J.F.C.,
96 S.W.3d at 266. “Evidence is legally sufficient if, viewing all the evidence in the light most
favorable to the finding and considering undisputed contrary evidence, a reasonable factfinder
could have formed a firm belief or conviction that the finding was true.” In re A.C., 560 S.W.3d
at 631; In re J.F.C., 96 S.W.3d at 266.
A factual-sufficiency review, in contrast, requires “weighing disputed evidence
contrary to the finding against all the evidence favoring the finding.” In re A.C., 560 S.W.3d
at 631. The reviewing court must consider “whether disputed evidence is such that a reasonable
3
factfinder could not have resolved it in favor of the finding.” Id. “Evidence is factually
insufficient if, in light of the entire record, the disputed evidence a 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.
In our review of the evidence, we must “provide due deference to the decisions of
the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole
arbiter when assessing the credibility and demeanor of the witnesses.” In re A.B., 437 S.W.3d
498, 503 (Tex. 2014).
DISCUSSION
Predicate Statutory Findings
In four issues on appeal, Mother challenges the legal and factual sufficiency of the
evidence supporting the trial court’s findings as to each statutory ground alleged by the
Department and found by the trial court—namely, Subsections (D), (E), (O), and (P) of Section
161.001(b)(1). See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (P). We will begin our review
by analyzing whether the evidence is sufficient to support the trial court’s finding of
endangerment under Subsection (E).
Applicable Law
A trial court may order termination of the parent-child relationship under
subsection (E) if clear and convincing evidence establishes that the parent “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). When evaluating the
evidence with respect to Subsection (E), the relevant inquiry is whether the child’s physical or
4
emotional well-being was endangered as a direct result of the parent’s conduct, including acts
and omissions or failures to act. V.P. v. Texas 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.); A.S. v.
Texas Dep’t of Fam. & Protective Servs., 394 S.W.3d 703, 711 (Tex. App.—El Paso 2012,
no pet.). “Termination under subsection (E) requires more than a single act or omission, and
the evidence must demonstrate a voluntary, deliberate, and conscious course of conduct by the
parent, considering a parent’s actions both before and after the child was removed from the
home.” T.M. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00174-CV, 2021 WL
4692471 at *6 (Tex. App.—Austin Oct. 8, 2021, pet. denied) (mem. op.). Further, in evaluating
whether the evidence supports a finding of endangerment under Subsection (E), the factfinder
may consider conduct that occurred both before and after the child was born. M.D. v. Texas
Dep’t of Fam. & Protective Servs., No. 03-20-00531-CV, 2021 WL 1704258 at *6 (Tex. App.—
Austin Apr. 30, 2021, no pet.) (mem. op.) (citing In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009);
In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)).
A child is “endangered” if the child is exposed to loss or injury or if the child’s
emotional or physical health is jeopardized. D.H. v. Texas Dep’t of Family & Protective Servs.,
652 S.W.3d 54, 61 (Tex. App.—Austin 2021, no pet.); A.S., 394 S.W.3d at 711. Although
endangerment means “more than a threat of metaphysical injury or the possible ill effects of a
less-than-ideal family environment,” Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987), it is not necessary to show that the conduct was directed at the child or that the child
actually suffered injury, In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.]
2014, pet. denied). Moreover, endangerment does not have to be established as an independent
proposition but may instead be inferred from the parental misconduct alone. A.C. v. Texas Dep’t
5
of Family & Protective Servs, 577 S.W.3d 689, 699 (Tex. App.—Austin 2019, pet denied)
(citing Boyd, 727 S.W.2d at 533). As a general rule, conduct that subjects a child to a life of
uncertainty and instability endangers the physical and emotional well-being of a child. In re
J.O.A., 283 S.W.3d at 336.
Evidence Presented
At trial, the State presented the testimony of Amber Mossette, the Department
investigator assigned to the case; Tatila Shaw, the Department conservatorship caseworker;
Mother; Greg Cougar, a licensed professional counselor who provided counseling services to
Mother during the case; and Lisa Morita, the Court Appointed Special Advocate (CASA)
volunteer.
In her testimony, Mossette stated that the case began after the Department
received “an intake about [M]other’s drug use and the child being dirty.” As to the allegation
that E.Y. was “dirty,” Mossette testified that during her investigation, she discovered that E.Y.
had lice and that “diaper changes weren’t being done correctly.” Mossette also observed that
“[t]he house wasn’t set up for a child,” and that Mother and E.Y. were “staying in the living
room area” of a friend, and there was “really nowhere for [E.Y.] to stay.” As to the report of
drug use, Mossette testified that on April 13, 2021, following a drug test, Mother signed an
“acknowledgement of substance abuse.” In that document, which was admitted into evidence
at trial, Mother acknowledged that she had tested positive for and admitted to the use of
methamphetamine and marijuana. Finally, Mossette testified that during her investigation she
learned that Mother previously had another child removed from her care by the Department due
6
to “physical abuse.” Mossette did not provide details as to what led the Department to conclude
that physical abuse had occurred with the other child or who had committed the abuse.
Caseworker Shaw testified as to Mother’s compliance with the requirements of
her court-ordered service plan. Shaw testified that Mother was required, in part, to submit to
random drug tests; undergo a psychological evaluation and a screening for alcohol and substance
abuse, known as an Outreach Screening Assessment Referral (OSAR); and attend individual
therapy. In addition, Mother was required to follow any recommendations made as a result of
her psychological evaluation and OSAR.
According to Shaw’s testimony, Mother failed to complete several of her service-
plan requirements. Although Mother submitted to random drug tests, as required, the results of
those tests showed that Mother tested positive for marijuana on November 8, 2021; January 4,
2022; January 28, 2022; March 4, 2022; March 31, 2022; April 12, 2022; and April 26, 2022. In
addition, although Mother completed her OSAR in February 2022, she did not participate in
“intensive outpatient drug treatment,” as recommended by her OSAR. Similarly, she did not
attend Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings as recommended
in her psychological evaluation. Mother received some individual mental-health therapy but
did not start her sessions until September 2022, more than a year after the case began and
approximately a month before trial. Finally, Shaw testified that Mother had moved four times
since the case began and that the Department was concerned about Mother’s inability to maintain
stable employment and housing. The Department did not consider her current home to be a safe
environment due in part to the ongoing illegal drug use in the home.
During her testimony, Mother explained that her understanding was that E.Y. was
removed from her care because her “father called and was saying I didn’t have her in the proper
7
clothing when I left.” She denied that she was using methamphetamine at the time of removal
but admitted that she used it “shortly after.” According to Mother’s testimony, the only illegal
drug that she was using regularly at the time of trial was marijuana. Although she was trying to
stop using marijuana, she was not attending NA or AA meetings because she “ha[sn’t] been able
to find any.” Mother testified that she called a provider to set up an OSAR evaluation, as
required by her service plan, but was told they could not provide services because she was not
actively using drugs at that time. At the time of trial, Mother had not received any drug-
treatment counseling. Mother testified that she completed her court-ordered parenting classes,
but when questioned about what she had learned in her parenting classes, she explained, “I didn’t
need to learn anything because I already knew what to do. It’s just, you know, the drugs
are what caused me to not be able to properly care for [E.Y.]” Mother also testified that
approximately a month before trial she began receiving individual therapy to treat depression
and anxiety, for which she takes medication, and that she thought the counseling sessions were
going well.
As to her living arrangements, Mother testified that at the time of removal, she
was living with her father but that she left after a month because they were “constantly fighting.”
Mother explained that she was raised by her mother, who died soon after E.Y.’s birth, and that
she did not have a relationship with her father until after her mother’s death. Mother is currently
living with her boyfriend, who uses marijuana to “treat his seizures.” Also living in the house
with Mother and her boyfriend are her boyfriend’s brother, cousin, sister, and sister’s boyfriend.
Because Mother is currently unemployed and has not worked in three months, her boyfriend
pays her portion of the rent, $245 per month.
8
Cougar, the counselor who provided individual therapy to Mother, testified about
his professional assessment of Mother. Cougar testified that he conducted five therapy sessions
with Mother and that, based on his observations, she has not yet “develop[ed] tools to manage
impulses to use drugs [and] stabilize her life.” According to Cougar, Mother reported to him that
she has not used methamphetamine in “quite a while” but continues to smoke marijuana, as
recently as the week before trial. In his opinion, Mother surrounds “herself with anti-social
people that utilize poor judgment and decision-making to handle stress.”
Finally, Morita testified that CASA recommended that the trial court terminate
Mother’s rights so that E.Y. could be placed in a “safe and stable” home, with parents who could
meet her psychological and medical needs. Morita stated that she had observed visits between
Mother and E.Y. and that during these visits Mother played with E.Y. and brought her snacks
and clothing. Nevertheless, Morita stated that she believed termination of Mother’s parent rights
was in E.Y.’s best interest and that CASA’s main concerns were Mother’s lack of stable housing,
her inconsistent visits with E.Y., and “her lack of concern with [E.Y.’s] medical condition.”
Analysis
On appeal, Mother asserts that the evidence is insufficient to support a finding of
endangerment because there is no evidence that her drug use, the only potentially endangering
conduct at issue, “affected her life or her parental abilities or endangered the child.” Specifically,
Mother argues that there is no evidence as to the “frequency or amount of her methamphetamine
use” or that she used marijuana “when in possession of the child.” In addition, Mother points
out, the undisputed evidence shows that she remained clean of methamphetamine after E.Y. was
removed from her care.
9
On this record, the evidence concerning Mother’s drug use is sufficient to support
a finding of endangerment under Subsection (E).
Although not automatic, a parent’s illegal drug use may qualify as an endangering
course of conduct under Subsection (E) “because it exposes the child to the possibility that the
parent may be impaired or imprisoned.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); A.C.,
577 S.W.3d at 699. Endangerment does not have to be established as an independent proposition
but may instead be inferred from parental misconduct. D.H., 652 S.W.3d at 61 (citing Boyd,
727 S.W.2d 533). “In some circumstances, a parent’s drug use might be so pervasive or serious
that the factfinder could reasonably infer that the drug use is endangering, despite a lack of
evidence showing that the drug use caused some other endangering activity or even that the drug
use occurred while the children were in the parent’s direct care.” See D.H., 652 S.W.3d at 61;
In re M.A.J., 612 S.W.3d 398, 407-08 (Tex. App.—Houston [1st Dist.] 2020, pet. denied)
(concluding that evidence of positive drugs tests after Department received referral that parent
used narcotics was sufficient to support finding of endangerment under subsection (E)).
Here, the undisputed evidence establishes that Mother used methamphetamine in
the past and that, based on her positive test in April 2021, she used methamphetamine the month
before E.Y. was removed from her care. Although there was no direct evidence presented as to
the length or frequency of Mother’s methamphetamine use, the evidence shows that when
the Department began its investigation, Mother lacked appropriate living arrangements for E.Y.
and some of the child’s basic needs had been neglected. By Mother’s own admission, her drug
use prior to E.Y.’s removal prevented her from “properly car[ing] for E.Y.” From these
circumstances, the trial court could have reasonably inferred that Mother’s methamphetamine
use in April 2021 was not an isolated event but was instead an ongoing course of conduct.
10
In addition, the evidence establishes that Mother used marijuana before E.Y. was
removed from her care and that, even after the removal, when Mother was at risk of losing her
parental rights, she continued to use marijuana regularly. See D.H., 652 S.W.3d at 62 (collecting
authorities and noting that courts of appeals have recognized “that a parent’s decision to use
illegal drugs while the termination suit is pending, and while the parent is at risk of losing
her child, may support a finding of endangerment under subsection (E)”); see also In re K.A.C.,
594 S.W.3d 364, 373 (Tex. App.—El Paso 2019, no pet.) (evidence that parent continued to use
illegal drugs when she knew parental rights were in jeopardy “is conduct showing a voluntary,
deliberate, and conscious course of conduct, which by its nature, endangers a child’s well-being”).
Consequently, Mother’s continued use of marijuana while E.Y. was in the Department’s care
can, under these circumstances, be considered as evidence of endangerment. In addition, Mother
failed to seek treatment for her substance-abuse issues, despite being required to do so by her
service plan. In short, despite a lack of direct evidence that Mother’s drug use caused some other
independent endangering activity, the trial court could have reasonably inferred that Mother’s
illegal drug use jeopardized E.Y.’s emotional or physical well-being.
After considering all the evidence in the light most favorable to the trial court’s
finding, along with any undisputed evidence contrary to the finding under Subsection (E), we
conclude that a reasonable factfinder could have formed a firm belief or conviction that Mother
engaged in a course of conduct that endangered E.Y.’s physical or emotional well-being. See
Tex. Fam. Code § 161.001(E); In re A.C., 560 S.W.3d at 631. In addition, in view of the entire
record, we conclude that the disputed evidence is not so significant that the trial court, as fact
finder, could not have formed a firm belief or conviction that Mother engaged in conduct
endangering to her child. See In re A.C., 560 S.W.3d at 631. As a result, the evidence is legally
11
and factually sufficient to support the trial court’s finding that termination of Mother’s parental
rights was warranted under Subsection (E). We overrule Mother’s second issue.
Because Section 161.001 requires proof of only one statutory predicate ground to
support termination, we need not consider issues one, three, and four, in which Mother asserts
that the evidence is insufficient to support termination under Subsections (D), (O), and (P).3 See
In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (“To 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.”); see
also Tex. R. App. P. 47.1.
Best-Interest Finding
We next consider Mother’s argument that the evidence is legally and factually
insufficient to support the trial court’s best-interest finding. See Tex. Fam. Code § 161.001(b)(2).
3
The Texas Supreme Court has held that due process requires an appellate court to
review challenged endangerment findings under Subsection (D) or (E), even if termination could
be upheld on another statutory predicate finding, because of collateral consequences that the
finding could have in any future proceeding brought under Subsection (M). See In re N.G.,
577 S.W.3d 230, 237 (Tex. 2019); see Tex. Fam. Code § 161.001(b)(1)(M) (providing that
parental rights may be terminated if clear and convincing evidence shows that parent “had his or
her parent-child relationship terminated with respect to another child based on a finding that the
parent’s conduct was in violation of Paragraph (D) or (E)”). This Court has subsequently held,
however, that an appellate court may uphold one endangerment finding under Subsection (D) or
(E), without addressing the other, even in cases where both findings are challenged on appeal.
J.B.M.H. v. Texas Dep’t of Family & Protective Servs., No. 03-22-00661-CV, 2023 WL 2920315at *8 (Tex. App.—Austin Apr. 13, 2023, no pet. h.) (mem. op.) (affirming endangerment finding
under Subsection (D) without addressing challenge to finding under subsection (E) because
“collateral consequences [under future Subsection (M) termination] are identical” whether
based on finding under Subsection (D), (E), or both); but cf. J. B. M. H., 2023 WL 2920315, at
*12-14 (Theofanis, J., concurring).
12
Applicable Law
A determination of whether termination is in the best interest of a child is
“child-centered and focuses on the child’s well-being, safety, and development.” In re A.C.,
560 S.W.3d at 631. A strong presumption exists that a child’s best interests are served by
maintaining the parent-child relationship, see In re A.M., 495 S.W.3d 573, 580 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied), although “[t]he strong presumption that a child’s best
interest is served by keeping the child with his or her biological parents disappears when
confronted with evidence to the contrary,” Aguilar v. Foy, No. 03-10-00678-CV, 2012 WL
677497, at *8 (Tex. App.—Austin Mar. 1, 2012, no pet.) (mem. op.).
To determine whether termination is in a child’s best interest we consider the non-
exhaustive factors set out in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), including
(1) the desires of the child; (2) the child’s present and future emotional and physical needs;
(3) any emotional and physical danger to the child, now and in the future; (4) the parenting
abilities of the person seeking custody; (5) the programs available to assist these individuals in
promoting the best interest of the child; (6) the plans for the child by the individual or agency
seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or
omissions that may indicate that the existing parent-child relationship is not appropriate; and
(9) any excuse for the parent’s acts or omissions. The Department is not required to prove all of
these factors, and the absence of evidence of some of these factors would not preclude a finding
that termination is in the child’s best interest, “particularly if the evidence were undisputed that
the parental relationship endangered the safety of the child.” In re C.H., 89 S.W.3d 17, 27
(Tex. 2002).
13
While proof concerning the statutory predicates under Section 161.001(b)(1) does
not relieve the Department of having to prove that termination is in the best interest of the
children, the “same evidence may be probative of both issues.” V.P., 2020 WL 544797 at *8.
“When considering the child’s best interest, we may take into account that a parent is unable to
provide adequate care for a child, lacks parenting skills, or exercises poor judgment.” In re
M.C., 482 S.W.3d 675, 688 (Tex. App.—Texarkana 2016, pet. denied). “Parental drug abuse,
which reflects poor judgment, is also a factor that may be considered when determining the
child’s best interest.” Id.Analysis
As previously discussed, the Department presented evidence concerning Mother’s
drug use, both prior to and after E.Y.’s removal, along with evidence showing that she failed
to seek treatment for her drug use. The trial court could have reasonably inferred from this
evidence that if E.Y. were returned to Mother’s care, her marijuana use would continue and her
methamphetamine use would recur. See S.C. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-20-00039-CV, 2020 WL 3892796 at *16 (Tex. App.—Austin July 10, 2020, no pet.)
(mem. op.) (explaining that evidence of illegal drug use supports finding that termination is in
child’s best interest and that “factfinder may give great weight to this significant factor”); In re
T.N.J.J., No. 04-19-00228-CV, 2019 WL 6333470 at *5 (Tex. App.—San Antonio Nov. 27,
2019, no pet.) (mem. op) (explaining that evidence of drug use is especially relevant in accessing
parenting abilities and whether existing parent-child relationship is not appropriate).
The Department also presented evidence that E.Y. has specialized medical needs.
Mother testified that E.Y. has a heart condition for which E.Y. takes medication. Mother did not
14
know the name of the medication, and she stated that she had not spoken with E.Y.’s current
doctor. Nevertheless, Mother testified that she would provide for E.Y.’s medical needs by taking
her to the doctor for treatment. According to caseworker Shaw’s testimony, E.Y.’s condition is
“ventricular septal defect,” which “means [there is] a tiny hole in the wall between the four
chambers of her heart,” and E.Y. is under the care of a cardiologist for her heart condition, a
sleep psychologist for a sleep disorder, and an ophthalmologist for her crossed eyes. E.Y. also
recently completed occupational therapy and physical therapy.
As to Mother’s parenting abilities, counselor Cougar testified that, based on his
professional evaluation, “there’s a huge deficit in [Mother’s] ability to manage stress and just
kind of coping with life” and that “it seems like such an easy outlet for her to use marijuana.” In
short, Cougar testified that he was “most concerned about the instability in [Mother’s] life”
and that she had not made much progress in therapy. From Cougar’s testimony, along with the
evidence concerning Mother’s drug use, the circumstances surrounding E.Y.’s removal, and
E.Y.’s medical needs, the trial court could have reasonably inferred that Mother would be unable
to care for E.Y.’s physical needs and that returning E.Y. to her Mother’s care would pose an
unacceptable risk to the child’s physical and emotional well-being.
The trial court also heard about Mother’s relationship with E.Y. and her plans for
their future. Mother testified that during their visits they play on the playground and do activities
and that she often reads to E.Y. As to Mother’s future plans, Mother stated, “I would work on
getting my own place, but [E.Y.] would have her own room,” and testified that she and her
boyfriend would “save up the money to get it.” Mother also acknowledged, however, that it was
unsafe for E.Y. to be around people who smoke marijuana and that she was not sure where she
and E.Y. would live if they did not live with her boyfriend, who smokes marijuana. Mother also
15
testified that she is currently unemployed and recently quit her job at a hotel after only a few
days because she got sick and was told not to come back. Before that, Mother worked at a gas
station for a couple of months but quit that job because she was “being bullied.” The trial court
could have reasonably inferred from the evidence that Mother would be unable to provide E.Y.
with a safe and stable home environment.
Finally, the trial court heard testimony about the Department’s plan for placement
of E.Y. and the care that she has received while living with her foster parents. While parental
rights may not be terminated merely because a child might be better off living somewhere else, a
factfinder may consider that a child’s best interest may be served by termination of parental
rights so that adoption may occur rather than an impermanent foster-care arrangement that could
result if termination were not ordered. V.P., 2020 WL 544797 at *9.
Caseworker Shaw testified that E.Y. has been residing with her foster parents
since removal and that the foster parents plan to adopt E.Y. if parental rights are terminated.
Shaw described the relationship between E.Y. and her foster parents as “very loving” and
explained that E.Y. has bonded with her foster parents and is comfortable expressing her feelings
to them. In addition, the foster parents have attended to E.Y.’s medical needs, taking her to all
necessary medical appointments. In Shaw’s view, E.Y. is thriving.
Reviewing the evidence under the applicable standards of review, we conclude
that the evidence is legally and factually sufficient to support the trial court’s finding that it was
in E.Y.’s best interest to terminate Mother’s parental rights. We overrule Mother’s third
appellate issue.
16
CONCLUSION
Having overruled Mother’s issues on appeal, we affirm the trial court’s order of
termination.
__________________________________________
J. Woodfin Jones, Justice
Before Justices Baker, Smith, and Jones*
Affirmed
Filed: May 31, 2023
*
Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
17