In the Interest of B.M.P.J., a Child v. the State of Texas ( 2024 )

NUMBER 13-24-00134-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF B.M.P.J., A CHILD
ON APPEAL FROM THE COUNTY COURT AT LAW NO. 5
OF NUECES COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Tijerina, and Silva
Memorandum Opinion by Justice Benavides
Appellant G.G. (Mother) appeals from an order terminating her parental rights to
her minor son, B.M.P.J. 1 The trial court found by clear and convincing evidence that
Mother failed to financially support the child for a period of twelve months leading up to
the petition, that Mother constructively abandoned the child after removal, and that Mother
1 To protect the identity of the minor child, we refer to him and his relatives by their initials or an
alias. See TEX. R. APP. P. 9.8.
failed to comply with her court-ordered family service plan. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(F), (N), (O). The trial court also found by clear and convincing evidence
that termination was in the child’s best interest. See id. § 161.001(b)(2). Mother
challenges each of these findings on legal and factual sufficiency grounds.2 We affirm.
I. BACKGROUND
A. Removal
The following allegations served as the basis for B.M.P.J.’s initial removal.
B.M.P.J., Mother’s first child, was born premature on September 21, 2020, weighing only
two pounds. When Mother was admitted to the hospital, she tested positive for
amphetamines and later suffered a seizure brought on by withdrawal from crystal
methamphetamine dependency. She also previously tested positive for amphetamines
during a prenatal appointment on May 4, 2020. Mother admitted to hospital staff that she
used Xanax and codeine during the pregnancy, and Father admitted to providing Mother
with Benadryl, Percocet, Xanax, and hydrocodone during that period.
Mother is intellectually disabled and has been diagnosed with bipolar type
schizoaffective disorder, borderline personality disorder, post-traumatic stress disorder,
and generalized anxiety disorder. Mother also has a history of suicidal and homicidal
ideations. Finally, Mother reported to the Texas Department of Child Protective Services
that Father physically abused her. Based on these facts, the Department effected an
emergency removal of the child, and the trial court later appointed the Department as the
child’s temporary sole managing conservator.
2 Father’s parental rights were also terminated, but he has not appealed the termination order.
2
B. Prior Case
In March 2022, the Department obtained an order terminating Mother’s parental
rights. In re B.P., No. 13-22-00353-CV, 2022 WL 17668192, at *1 (Tex. App.—Corpus
Christi–Edinburg Dec. 15, 2022, no pet.) (mem. op.). On appeal, the Department
conceded that the trial court lost subject-matter jurisdiction before trial commenced. Id.;
see TEX. FAM. CODE ANN. § 263.401(a), (b). Accordingly, in December 2022, we vacated
the termination order and dismissed the case for lack of jurisdiction. In re B.P., 2022 WL
17668192, at *3.
C. Department Files a New Petition
Approximately two weeks before our dismissal, the Department preemptively filed
a new conservatorship petition alleging “an immediate danger to the physical health or
safety of the child” and seeking emergency protection of the child. In a lengthy supporting
affidavit, the Department recounted the circumstances that prompted the initial removal
and the facts that led the Department to eventually seek termination in the first case. The
affidavit also explained that, in light of the anticipated dismissal of the first case, the
Department began reaching out to the parents in October 2022 to reassess their situation.
According to the affidavit, Mother and Father agreed to submit to drug testing. Mother’s
hair follicle test came back positive for amphetamine, methamphetamine, cocaine
metabolite, codeine, and the opiate hydrocodone, while her urinalysis was positive for
cocaine and the opiate hydrocodone. Mother did not have a prescription for hydrocodone.
Father’s hair follicle test came back positive for amphetamine and methamphetamine,
and his urinalysis was pending at the time the petition was filed. The Department further
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alleged in the affidavit that Mother and Father currently lived in a home without electricity
or running water, that Mother recently admitted that Father was selling drugs out of their
home, that Mother was not taking the medications prescribed to treat her mental illnesses,
that Mother had recently expressed suicidal ideations, and that domestic abuse remained
an ongoing issue. The trial court entered new emergency orders appointing the
Department as the child’s temporary sole managing conservator days before our
memorandum opinion was handed down. B.M.P.J., who had been placed with a foster
family upon his initial removal, continued to reside with that family during the pendency
of this case.
D. Adversary Hearing
An adversary hearing began on December 13, 2022, and was recessed until
January 19, 2023. Mother appeared at the hearing in person and through her attorney of
record. 3 The trial court subsequently rendered temporary orders appointing the
Department as the child’s temporary sole managing conservator. The orders state that
the trial court considered the affidavit attached to the emergency petition and the evidence
presented during the hearing in reaching its decision. Based on that evidence, the trial
court made a finding that “there is sufficient evidence to satisfy a person of ordinary
prudence that . . . there was a danger to the physical health or safety of the child which
was caused by an act or failure to act of the person entitled to possession from who the
child was removed.” The trial court also made a finding that “there is a substantial risk of
3 The appellate record does not contain a request for a reporter’s record, and we have not been
provided a transcript from the adversary hearing.
4
continuing danger if [the child] is returned [to Mother’s] home.”
E. Trial
A bench trial occurred over two days, beginning on November 13, 2023, and
concluding on January 3, 2024.
1. Taite Bowers
Beginning on November 13 and continuing on January 3, Taite Bowers testified in
her capacity as a Department caseworker in the previous case and as a Department
supervisor in this case. Bowers explained that she helped develop the family service
plans for Mother and Father in this case and that each plan was designed to address the
Department’s specific concerns with that parent. Mother’s plan, which became an order
of the trial court in January 2023, required her, among other things, to demonstrate a safe
and stable home environment for B.M.P.J.; to “successfully complete group parenting
classes”; to “visit her child according to the times and days listed on the visitation plan”;
to complete a Battering Intervention and Prevention Program (BIPP); to complete an
assessment for drug abuse and follow any recommendations for treatment; to submit to
random drug testing “with the understanding that a missed drug test . . . will be recorded
as a positive drug test”; to “participate in a Psychological Evaluation” and “follow all
recommendations made by the assessor”; and to “participate in individual counseling to
specifically address issues related to the removal of her child,” including “how to cope
with the stress of the removal and ways to prevent future neglect.” For each service,
Mother was provided with the relevant contact information for the service provider.
Bowers said Mother participated in the development of the plan and “was in agreement”
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that these services were appropriate under the circumstances. Mother also signed an
acknowledgment that she understood the significance of the plan. Namely, that these
services were designed to help Mother demonstrate that she could provide a safe
environment for B.M.P.J. and that failure to complete the services could result in the
termination of her parental rights.
According to Bowers, Mother “made very minimal progress” on her services and
did not complete any of them. For instance, Bowers testified that Mother took her drug
assessment and “recently started relapse prevention class in October [2023],” completing
nine out of thirty-six hours of group classes, and ten out of sixteen individual sessions.
Bowers noted, however, that, as of January 3, 2024, Mother had not attended any of
those classes or sessions in approximately six weeks. Bowers also cited BIPP as an
example of a service Mother never started.
Bowers noted that Mother was charged with possession of marijuana during the
pendency of the case and did not drug test for the first nine months of the case. This
prevented her from having visitation with B.M.P.J. because the visitation plan ordered by
the trial court required a negative drug test before visitation could occur. Mother’s first
visitation with B.M.P.J. occurred over Zoom in September 2023, and she continued to
test negative for the remainder of the case but also failed to show up for a drug test in
December 2023. The visit was originally scheduled to occur in person, and the
Department purchased a bus ticket for Mother to travel to Corpus Christi for the visit.
However, as Mother would later testify, she was not allowed on the bus because she was
“too medicated.” Bowers observed the virtual visitation and said that Mother became
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emotional and cried most of the visit because it was the first time she had seen B.M.P.J.
since his initial removal. Mother’s only in-person visit occurred in October 2023, and
B.M.P.J. slept through most of the visit. The Department scheduled a subsequent
visitation for January 2, 2024, and again arranged transportation for Mother to travel to
Corpus Christi for the visit; however, Mother informed the Department that she had to
leave Corpus Christi before the scheduled visitation. Given the limited interaction between
Mother and B.M.P.J. during the two visits that did occur, Bowers said she was unable to
observe Mother’s parenting skills.
Bowers testified that Mother “has been diagnosed before with bipolar disorder,
depression, PTSD, [and] schizophrenia.” Bowers also noted that Mother has “a history of
suicidal and homicidal tendencies” and “was diagnosed with an intellectual and
developmental disability.” Bowers acknowledged that Mother had routinely admitted
herself into behavioral hospitals during the pendency of the case. Bowers estimated that
this occurred “once or twice a month” and credited Mother for always calling the
Department to let her caseworker know her location. Other than Mother admitting herself
into behavioral hospitals, Bowers had no knowledge of Mother receiving any other mental
health care outside of her service plan.
Bowers identified Mother’s strengths as her willingness to seek help at behavioral
hospitals, her consistent communication with the Department, her “attempts to surround
herself with positive people,” and her love for B.M.P.J. On the other hand, Bowers said
that Mother’s continued mental instability was a result of failing to take her medications
as prescribed. Bowers described a continuous cycle where Mother would stabilize in the
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hospital, get released, and then go “off her medication,” necessitating another trip to the
hospital. Bowers opined that Mother’s “inconsistency [in] dealing with her mental health”
would lead to an unstable home environment for B.M.P.J. Bowers also noted that
although Mother had surrounded herself with supportive and positive influences at times,
“she tends to go away from those people and end up with people that are not supportive
of her.” Bowers cited Mother’s continued relationship with Father, who has a history of
drug abuse, mental instability, and domestic violence. According to Bowers, Mother did
not end her relationship with Father until October 2023, and while they were together,
they could not maintain stable housing. At one point, they were living in a home without
electricity or running water. Bowers pointed out that after Mother left Father, she began a
romantic relationship with someone that Mother identifies as her girlfriend or wife. From
what Bowers had heard and seen, this new person in Mother’s life is a positive influence
and “tr[ies] to help [Mother] be on the right path.” However, Bowers said that after this
relationship began, Mother then “had a new boyfriend or fiancé,” but “now she’s back with
her wife.” Bowers believed that the relationship with the boyfriend ended only days before
Bower’s January 3 testimony and that the relationship ended because of a domestic
violence incident.
Bowers further testified that the Department had evaluated potential placements
identified by Mother and Father, but these people either declined the placement or failed
a background check. Instead, B.M.P.J. had been placed with the same foster family since
his removal in September 2020. Bowers said that B.M.P.J. is “doing great” and “thriving”
in his placement. The foster family has been able to address the child’s medical and
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developmental needs, including a successful surgery to treat hip dysplasia and
completion of early childhood development services. B.M.P.J. was meeting
developmental markers and showing “a lot of improvement,” according to Bowers. Finally,
Bowers testified that the family has expressed an interest in adopting B.M.P.J. and
submitted a letter of intent to that effect.
2. Hope Demery
Hope Demery was the current Department caseworker assigned to the case at the
time of trial. She was first assigned to the case in December 2023. She familiarized herself
with the history of the case by reading the Department’s records and discussing the case
with the previous caseworker, Monica Gomez.
Demery had the opportunity to meet and observe B.M.P.J. at his foster placement
and described him as “a very happy, bubbly, excited kid.” Demery said that B.M.P.J. was
bonded with another child that had been placed with the foster family, saying “they
interacted well.”
3. Mother
Mother testified remotely from a hotel room in McAllen. She said that she currently
resides in a house with Janie Bell Chris in Brownsville, saying the house “has been clean
and everything has been great in that house.” Mother claimed that she ceased contact
with Father “[a]t least [eleven] months” prior to her testimony on January 3, and although
she referred to Chris as her “wife,” Mother said they were planning to get married the
following day. Mother also said that Chris would be the person to care for B.M.P.J. if she
“were to go to the hospital.” Mother believed that she would be able to financially support
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B.M.P.J. because she receives Supplemental Security Income, receives benefits under
the Supplemental Nutrition Assistance Program, and works fifteen hours a week as
Chris’s caregiver. Although Mother suffers from seizures, which prevent her from
operating an automobile, she said that Chris has a vehicle and would be willing to drive
B.M.P.J. to any appointments he may need.
Mother said she left Corpus Christi before her scheduled visit with her child and
the resumption of the trial because she “had a family emergency.” She explained that her
cousin “has cirrhosis of the liver[,] and they called the family [to McAllen]” because the
cousin was believed to be near death.
Mother acknowledged that she had been diagnosed with depression, anxiety, and
PTSD but denied that she had been diagnosed as bipolar or schizophrenic with
psychosis. She said that she has a psychiatrist, Cesar Marcos, and a counselor, Don
Cooley, that she regularly visits “because they are the ones that [she] trust[s].” Mother
explained that she does not “feel comfortable going through the Department” for these
types of referrals. She claimed that Marcos has been her psychiatrist “for more than a
year” and that Cooley has been her counselor for the past eight months. She said that
she meets with Cooley in person and over Zoom and that he has helped her learn how to
cope with her depression and anxiety. Mother acknowledged that she never informed the
Department that she was receiving counseling services from Cooley.
Mother agreed that she had been admitted to “a behavioral hospital several times
in the past year” but said the last instance was in November 2023, and she “wasn’t there
longer than a week.” Mother said that due to successful treatment, she no longer “feel[s]
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suicidal or homicidal.” Mother said she is currently prescribed Clonazepam, she takes it
as prescribed, and she is “doing great on [the] medication.”
Under cross-examination, Mother acknowledged that she traveled to Corpus
Christi for the January 2, 2024 visit and the January 3, 2024 trial setting with a male that
she referred to as her “fiancé” when speaking to Demery. She clarified that although he
was romantically interested in her, the feeling was not mutual, and she only referred to
him as her fiancé because he pressured her to. Contrary to her previous testimony, she
also admitted that she had been admitted to “South Texas Behavioral” as recently as
December 22, 2023, through December 27, 2023. She also acknowledged that she
received her current prescription for Clonazepam while she was at the hospital. Mother
denied that she was “on any [illicit] drugs” during her testimony and disagreed with the
suggestion that she was slurring her words.
4. Closing Arguments
Department’s counsel argued that Mother appeared intoxicated during her
testimony: “She’s slurring her words. She’s been unable to control her speech pattern.”
Mother’s counsel objected that Department’s counsel was effectively testifying. The trial
court disagreed, saying “it is argument,” and the court would “be the judge [of Mother’s
alleged intoxication].” The Department cited Mother’s failures to comply with the service
plan, mental instability, and overall inability to demonstrate a stable home environment
as reasons to terminate her parental rights.
Mother’s counsel countered that Mother had engaged in some of the specific
services required by her plan and independently sought out other services that were
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consistent with her plan. Counsel said that Mother’s recent actions demonstrated that she
“has made a substantial effort and progress in changing the situation that caused this
case to occur in the first place.” Under the circumstances, Mother did “everything that she
could do,” according to counsel. Mother requested that the Department be appointed the
child’s permanent managing conservator without terminating her parental rights.
The child’s attorney ad litem felt the “Department ha[d] met their burden.” In her
opinion, Mother essentially got a second chance but did not take advantage of it. She
noted that Mother did not begin services until a few weeks before trial began. The ad litem
did not believe Mother’s mental illness was an excuse because the Department had
provided Mother with plenty of resources and support, and Mother simply failed to take
advantage of them. She recommended termination because it would be in the child’s best
interest.
F. Trial Court’s Ruling
The trial court terminated Mother’s parental rights, finding by clear and convincing
evidence that Mother “failed to support the child in accordance with the parent’s ability
during a period of one year ending within six months of the date of the filing of the petition”;
constructively abandoned the child after removal; and failed to comply with her court-
ordered family service plan. See TEX. FAM. CODE ANN. § 161.001(b)(1)(F), (N), (O). The
trial court also found by clear and convincing evidence that termination was in the child’s
best interest. See id. § 161.001(b)(2). This appeal ensued.
II. STANDARD OF REVIEW
A parent has a constitutional right to the care, custody, and control of her child. In
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re J.W., 645 S.W.3d 726, 740 (Tex. 2022); In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020)
(orig. proceeding). Accordingly, in proceedings to terminate the parent-child relationship,
the petitioner is required to prove by clear and convincing evidence one of the statutory
termination grounds and that termination is in the child’s best interest. TEX. FAM. CODE
ANN. § 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.
In parental termination cases, our legal and factual sufficiency standards honor
this elevated burden of proof while respecting the role of the factfinder. In re A.C., 560
S.W.3d 624, 630 (Tex. 2018). “The distinction between legal and factual sufficiency lies
in the extent to which disputed evidence contrary to a finding may be considered.” Id. In
a legal sufficiency review, we “cannot ignore undisputed evidence contrary to the finding,
but [we] must otherwise assume the factfinder resolved disputed facts in favor of the
finding.” Id. at 630–31 (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). Thus,
“[e]vidence is legally sufficient if, viewing all the evidence in the light most favorable to the
fact-finding and considering undisputed contrary evidence, a reasonable factfinder could
form a firm belief or conviction that the finding was true.” Id. at 631 (citing In re J.F.C., 96
S.W.3d at 266).
Factual sufficiency, on the other hand, requires us to weigh disputed evidence
contrary to the finding against all the evidence favoring the finding. Id. We “must consider
whether disputed evidence is such that a reasonable factfinder could not have resolved
it in favor of the finding.” Id. (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per
13
curiam)). Therefore, “[e]vidence is factually insufficient if, in light of the entire record, the
disputed evidence a reasonable factfinder could not have credited in favor of a finding is
so significant that the factfinder could not have formed a firm belief or conviction that the
finding was true.” Id. (citing In re J.F.C., 96 S.W.3d at 266).
In reviewing for factual sufficiency, we must be careful not to usurp the factfinder’s
role. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). Deciding whether to credit evidence
and how to weigh its probative value is the factfinder’s role, not ours. In re J.O.A., 283
S.W.3d 336, 346 (Tex. 2009). The factfinder is the sole arbiter of witness credibility and
demeanor. Id. In a bench trial, the trial judge is the factfinder who weighs the evidence,
resolves evidentiary conflicts, and evaluates witnesses’ demeanor and credibility. In re
R.J., 579 S.W.3d 97, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).
III. TERMINATION
Mother first argues that the evidence was legally and factually insufficient to
support each of the termination grounds. We focus on the finding that Mother failed to
comply with the court-ordered family service plan.4
4 When termination is based on multiple statutory grounds, we will generally affirm if any one of
those grounds is supported by legally and factually sufficient evidence In re Z.M.M., 577 S.W.3d 541, 542
(Tex. 2019) (per curiam) (stating that “only one ground is required to terminate parental rights”). However,
if a parent’s rights were terminated under Subsections (D) or (E), we are required to review a sufficiency
challenge to those grounds even if another ground would support termination. In re J.W., 645 S.W.3d 726,
748 (Tex. 2022); see TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Mother acknowledges that Subsections
(D) and (E) are not in play here. Consequently, we may affirm on any one of the three termination findings
in this case. See In re Z.M.M., 577 S.W.3d at 542.
Additionally, we are cognizant of the Supreme Court of Texas’s recent warnings about the potential
misuse of (O) grounds in termination proceedings. See In re A.A., 670 S.W.3d 520, 531 (Tex. 2023).
However, as explained below, “we are satisfied that is not what happened here.” Id.14
A. Applicable Law
A parent’s rights may be terminated if the child was removed from the parent’s
care “under Chapter 262 for the abuse or neglect of the child,” the child has been in the
State’s custody for nine months, and the parent “failed to comply with the provisions of a
court order that specifically established the actions necessary for the parent to obtain
return” of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Failure to comply with a
court-ordered service plan can support termination under Subsection (O). In re A.A., 670
S.W.3d 520, 531–32 (Tex. 2023) (explaining that a family service plan “gives a parent like
Mother an opportunity to have the child returned to her by demonstrating her parenting
ability through compliance with the service plan”). “Notably, termination is not automatic
or required, even if the Department properly proves a parent failed to comply with a
specific plan provision.” In re R.J.G., 681 S.W.3d 370, 379 (Tex. 2023). Moreover, “strict
compliance with every detail of a service plan is not always required to avoid termination
under (O).” Id. Instead, the alleged violation must be a material requirement of the plan
to justify termination under (O). Id. (collecting cases). Stated differently, “if the
noncompliance is trivial or immaterial in light of the plan’s requirements overall,
termination under (O) is not appropriate.” Id.B. Analysis
Focusing first on the circumstances of the child’s removal, Mother contends that
“the Department failed to present any evidence the child was in fact being abused or
neglected by [Mother] at the time the service plan was implemented or he was removed.”
Mother’s initial argument is twofold: (1) the Department was required to show by clear
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and convincing evidence that Mother was actually abusing or neglecting B.M.P.J. at the
time of his removal; and (2) the Department cannot merely rely upon its affidavit
supporting the emergency removal or the terms of the service plan to support the trial
court’s finding.
Mother is correct that the reason for the child’s removal functions as a “factual
predicate to the application of (O).” In re A.A., 670 S.W.3d at 529. But contrary to her
suggestion, the removal predicate does not require the Department to show a history of
actual abuse or neglect by the parent; instead, the statutory phrase “abuse or neglect of
the child” broadly encompasses parental conduct that poses a substantial risk or threat
to the health or safety of the child. Id. at 528 (citing In re E.C.R., 402 S.W.3d 239, 247–
48 (Tex. 2013) (explaining that the removal standard in Chapter 262 is “centered on risk,
rather than just a history of actual abuse or neglect”)). Removal may be necessary even
if the child is not currently in the parent’s physical or legal possession at the time of
removal. See id. at 529 (“By their clear language, these orders confirm that the removal
order legally removed the children from both Mother and Father, regardless of who had
legal or physical possession of the children at the time.”). Indeed, the Department “cannot
leave [or place] a child with a parent whose conduct or home environment would
endanger the child.” Id. at 532. Further, when a parent challenges the sufficiency of the
evidence to support the removal predicate under (O), we may look to the Department’s
affidavit supporting removal and the trial court’s findings following the adversary hearing.
Id. at 529–30; In re E.C.R., 402 S.W.3d at 248–49 (collecting cases). In such cases, the
supporting affidavit and the trial court’s findings can “conclusively establish[] that [the
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child] was removed from [the parent] under Chapter 262 of the Family Code for abuse or
neglect.” In re E.C.R., 402 S.W.3d at 249; see In re A.A, 670 S.W.3d at 529–30
(concluding that “the record contains sufficient evidence that the factual predicate to the
application of (O) has been met” after reviewing the supporting affidavit and the trial
court’s findings after the permanency hearing). With those ground rules in mind, we turn
to the facts of this case.
The Department’s supporting affidavit alleged the following facts. B.M.P.J. was
initially removed from Mother at birth due to concerns over Mother’s drug addiction and
mental instability, as well as allegations of domestic abuse in the home. Mother’s drug
addiction was so severe that she consumed illicit drugs during her pregnancy and
suffered a seizure in the hospital caused by withdrawal from crystal methamphetamine
dependency. In anticipation of the possible return of the child, the Department asked
Mother to submit to drug testing in October 2022. Her hair follicle test came back positive
for amphetamine, methamphetamine, cocaine metabolite, codeine, and hydrocodone.
Her urinalysis was positive for cocaine and hydrocodone. Mother was still residing with
Father, and they were living in a home without running water or electricity. Mother
reported to the Department that Father was selling drugs out of the home, and the
Department received a report of continued domestic violence in the home. Finally, the
Department received a report that Mother was not taking the medications prescribed to
treat her mental illnesses and that Mother had recently expressed suicidal ideations.
Based on these allegations, the trial court entered emergency orders for the
protection of the child, finding that the Department had made reasonable efforts to return
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the child to Mother “but continuation in the home of [Mother] would be contrary to the
child’s welfare.” The Department’s allegations were put to the test during the subsequent
adversary hearing, where Mother appeared in person and was represented by counsel.
At the conclusion of the hearing, that trial court found that the removal was justified
because “there was a danger to the physical health or safety of the child which was
caused by an act or failure to act of the person entitled to possession from whom the child
was removed.” The trial court also made a finding that “there is a substantial risk of
continuing danger if [the child] is returned [to the] home of [Mother].” Notably, Mother did
not challenge these findings at the time they were made or later at trial. See In re A.A,
670 S.W.3d at 530 (observing that Mother could have, but did not, challenge the propriety
of the temporary orders by mandamus, nor did she argue during the trial that the removal
predicate under (O) had not been satisfied); In re E.C.R., 402 S.W.3d at 248 & n.8 (same).
The record conclusively establishes that, at the time of removal, the Department
could not return B.M.P.J. to Mother because her drug use, mental instability, and home
environment posed an immediate danger to the physical health or safety of the child. See
In re A.A., 670 S.W.3d at 530 (finding that evidence of Mother’s methamphetamine use
satisfied (O)’s removal predicate). Mother’s first sub-issue is overruled.
Mother next contends that the evidence was insufficient to establish that she “did
not engage in the family service plan . . . [because she] completed some of the service
plan.” (Emphasis added). In other words, Mother implicitly concedes that she did not
complete all the tasks in her service plan. However, when we view the evidence in the
light most favorable to the trial court’s judgment, the record establishes that Mother did
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not complete any of her services and only began drug counseling approximately one
month before trial began. Each service in her plan, including parenting classes, drug
counseling, mental health counseling, and BIPP, was a material requirement that Mother
needed to complete to demonstrate that she could provide B.M.P.J. with a safe and stable
home environment. See In re R.J.G., 681 S.W.3d at 379. To be sure, Bowers testified
that Mother participated in the development of the plan and “was in agreement” that these
services were warranted. Moreover, Mother also refused to drug test for the first nine
months of the case (another plan requirement), which prevented her from visiting B.M.P.J.
during that period (also a plan requirement).
Even if we credit Mother’s testimony that she regularly met with her psychiatrist
and mental health counselor—facts she never shared with the Department until trial—
and considered these to be equivalent to the plan requirements that she “participate in a
Psychological Evaluation” and “follow all recommendations made by the assessor,” the
overwhelming balance of the record establishes that Mother was substantially
noncompliant with other material requirements in her plan.5 See id. Therefore, under
either sufficiency standard, a factfinder could have formed a firm belief or conviction that
termination was appropriate under (O). See TEX. FAM. CODE ANN. § 161.001(b)(1)(O).
5 It should be noted that Mother has not challenged the sufficiency of the evidence to terminate her
parental rights under (O) on the basis that her mental illness rendered her “unable to comply with specific
provisions” of the service plan after having made a good-faith effort to comply. See TEX. FAM. CODE ANN.
§ 161.001(d) (providing an affirmative defense to termination on (O) grounds). Her trial counsel said as
much in closing arguments when he suggested that Mother did “everything that she could do” under the
circumstances. Of course, it is inappropriate for an appellate court “to review the record, research the law,
and then fashion a legal argument for an appellant when [s]he has failed to do so.” Smith v. Smith, 541
S.W.3d 251, 260 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Nevertheless, had this argument been
properly raised, we would still conclude that the evidence supports termination under (O) because the
record reflects that, despite her mental illness, Mother was capable of complying with the terms of her
service plan but failed to make a good-faith effort to do so.
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Mother’s first issue is overruled.
IV. BEST INTEREST
Finally, Mother challenges the legal and factual sufficiency of the best-interest
finding.
A. Applicable Law
The best-interest component of the termination analysis “is child-centered and
focuses on the child’s well-being, safety, and development.” In re J.W., 645 S.W.3d at
746 (quoting In re A.C., 560 S.W.3d at 631). Although there is a “strong presumption” that
keeping a child with their natural parent is in the child’s best interest, In re R.R., 209
S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing TEX. FAM. CODE ANN. § 153.131(b)), it is
also presumed that “the prompt and permanent placement of the child in a safe
environment” is in the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a).
Courts consider a nonexclusive list of factors to guide their best-interest analysis:
(1) the child’s desires; (2) the child’s emotional and physical needs now and in the future;
(3) the emotional and physical danger to the child now and in the future; (4) the parenting
abilities of the individuals seeking custody; (5) the programs available to assist those
individuals to promote the child’s best interest; (6) the plans for the child by those
individuals or by the agency seeking custody; (7) the stability of the home or proposed
placement; (8) the parent’s acts or omissions that may indicate the existing parent-child
relationship is improper; and (9) any excuse for the parent’s acts or omissions. In re J.W.,
645 S.W.3d at 746 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). Each
case is fact specific, and the Department is not required to prove that each Holley factor
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favors termination. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
The Legislature has also provided guidance on factors for courts to consider,
including “the results of psychiatric, psychological, or developmental evaluations of
the . . . child’s parents”; “whether there is a history of abusive or assaultive conduct by
the child’s family”; ”whether there is a history of substance abuse by the child’s family”;
“the willingness and ability of the child’s family to seek out, accept, and complete
counseling services”; “the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time”; and “whether
the child’s family demonstrates adequate parenting skills.” See TEX. FAM. CODE ANN.
§ 263.307(b)(6)–(8), (10)–(12). Finally, the same evidence that supports a termination
ground may also be probative of the child’s best interest. In re C.H., 89 S.W.3d at 28
(citing Holley, 544 S.W.2d at 370).
B. Analysis
Echoing her position at trial, Mother argues that she made recent improvements in
her life that counsel against the best-interest finding. She points out that she left Father,
she is now in a positive and supporting relationship with Chris, and her drug tests were
negative over the last few months of the case. She also believes that she demonstrated
a commitment to addressing her psychological conditions throughout the case. The
Department counters that Mother’s much longer history of severe substance abuse and
unmanaged mental illness, as well as her failure to meaningfully engage in services or
take the necessary steps to exercise visitation, overwhelmingly support the best-interest
finding. The Department also argues that Mother’s alleged self-improvement is not free
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from contradiction or doubt. We agree with the Department.
As an initial matter, the trial court was free to weigh any recent improvements by
Mother against her much longer history of endangering conduct when assessing whether
termination was in the child’s best interest. See In re J.O.A., 283 S.W.3d at 346 (“While
the recent improvements made by [appellant] are significant, evidence of improved
conduct, especially of short-duration, does not conclusively negate the probative value of
a long history of . . . irresponsible choices.”); Jordan v. Dossey, 325 S.W.3d 700, 732
(Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“Although evidence shows [appellant]
has made some recent improvements to her past situation, those improvements cannot
absolve her of her long history of irresponsible choices.”); TEX. FAM. CODE ANN.
§ 263.307(b)(11) (listing “the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable amount of time” as a best-
interest factor (emphasis added)).
The record establishes that Mother consumed illicit drugs during her pregnancy
(amphetamine and methamphetamine), and even after the child was removed, Mother
continued to use drugs for the next several years (amphetamine, methamphetamine,
cocaine, codeine, and hydrocodone), only getting clean a few months before trial began.
See In re A.J.D.-J., 667 S.W.3d 813, 825 (Tex. App.—Houston [1st Dist.] 2023, no pet.)
(“[M]other’s continued illegal drug use during the pendency of this case took place while
she knew her parental rights were at stake. Continuing to use drugs under this
circumstance indicates an inability or unwillingness to prioritize the burdens and
responsibilities of parenthood ahead of the desire for intoxication . . . .”); In re K.C., 219
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S.W.3d 924, 927 (Tex. App.—Dallas 2007, no pet.) (explaining that a factfinder can give
“great weight” to the “significant factor” of a parent’s drug-related conduct); TEX. FAM.
CODE ANN. § 263.307(b)(8) (listing “a history of substance abuse by the child’s family or
others who have access to the child’s home” as a best-interest factor). Bowers testified
that Mother was charged with marijuana possession during the pendency of the case—a
fact Mother did not dispute—and that Mother’s refusal to drug test for the first nine months
of the case prevented her from exercising visitation with B.M.P.J. “[A] fact finder
reasonably can infer that a parent’s failure to submit to court-ordered drug tests indicates
the parent is avoiding testing because they were using illegal drugs.” In re E.R.W., 528
S.W.3d 251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing In re C.A.B., 289
S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.)); see also In re A.M.L.,
No. 04-19-00422-CV, 2019 WL 6719028, at *4 (Tex. App.—San Antonio Dec. 11, 2019,
pet. denied) (mem. op.) (finding that “Father’s failure to submit to drug testing, through
which the trial court could infer Father’s continued prescription drug abuse, is relevant to
multiple Holley factors”). Missing drug tests is also evidence that a parent failed to take
advantage of available support systems. C.C. v. Tex. Dep’t of Fam. & Protective Servs.,
653 S.W.3d 204, 219 (Tex. App.—Austin 2022, no pet.). Mother’s substantial history of
hard drug use before and during the majority of this case, even when weighed against
her recent sobriety, is a fact that strongly weighs in favor of the best-interest finding. See
In re J.O.A., 283 S.W.3d at 346.
Although the parties disagreed on Mother’s exact diagnoses, it was undisputed
that Mother regularly admitted herself into behavioral hospitals and had expressed
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suicidal and homicidal ideations during the pendency of the case. See TEX. FAM. CODE
ANN. § 263.307(b)(6) (listing “the results of psychiatric, psychological, or developmental
evaluations of the . . . child’s parents” as a best-interest consideration). Mother testified
that she had recently found mental stability, which she attributed in part to a new
medication she was taking. However, Bowers testified that Mother’s repeated
hospitalizations were a direct result of Mother’s failure to take her medications as
prescribed, a contention that Mother never disputed. See Adams v. Tex. Dep’t of Fam. &
Protective Servs., 236 S.W.3d 271, 280 (Tex.—App. Houston [1st Dist.] 2007, no pet.)
(sustaining best-interest finding and citing as a factor Mother’s “mental health problems,
including her . . . repeatedly going to hospitals and calling for emergency assistance, and
the possibility that she could discontinue taking her medication”); In re J.I.T.P., 99 S.W.3d
841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (finding mother’s suicidal
thoughts and history of noncompliance with medication schedule relevant to
endangerment analysis). It was also undisputed that Mother was last admitted to a
behavioral hospital from December 22, 2023, until December 27, 2023, and it was during
this hospitalization that she received her new prescription. These facts undermined
Mother’s claim of mental stability on January 3, 2024. While Mother’s willingness to admit
herself into behavioral hospitals is laudable, the record establishes that her ongoing
mental instability was at least partially attributable to her own choices. Her history of failing
to take her medications as prescribed could be construed by the factfinder as an
unwillingness or inability “to effect positive environmental and personal changes within a
reasonable period of time.” See TEX. FAM. CODE ANN. § 263.307(b)(11).
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Additionally, it was undisputed that Mother failed to seek a psychological
assessment or counseling through her service plan, and although Mother testified that
she independently sought treatment through a psychiatrist and counselor, she never
reported these visits to the Department, and the trial court was free to weigh the credibility
of Mother’s testimony. See In re S.R., 452 S.W.3d 351, 365 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied) (“This evidence of the parents’ failure to comply with services to
improve their mental health is a factor that the trial court could have considered in finding
that the parents engaged in a course of conduct that endangered the physical and
emotional well-being of the Children.”). Regardless, Mother’s failure to properly manage
her mental illness through medication was a fact that weighs in favor of the best-interest
finding.
As detailed above, Mother also failed to meaningfully engage in her service plan.
See id. § 263.307(b)(10). She did not complete a single service, and she only began her
drug counseling the month before trial began. See In re J.W., 645 S.W.3d at 747–48
(“[T]he same evidence that supports termination of Father’s rights under Subsection (O)
also supports the best-interest finding.” (citing In re J.F.C., 96 S.W.3d at 275)); In re
E.C.R., 402 S.W.3d at 249 (“Many of the reasons supporting termination under
subsection O also support the trial court’s best interest finding.” (citing In re C.H., 89
S.W.3d at 28). “A fact finder may infer from a parent’s failure to take the initiative to
complete the services required to regain possession of h[er] child that [s]he does not have
the ability to motivate h[er]self to seek out available resources needed now or in the
future.” In re J.M.T., 519 S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.] 2017, pet.
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denied); see Holley, 544 S.W.2d at 372 (listing parental abilities of individual seeking
custody as best-interest factor). This factor also weighs heavily in favor of the best-
interest finding.
Finally, given the fact that Mother only visited B.M.P.J. twice in the several years
since his initial removal at birth, “the factfinder could have reasonably found that no
meaningful parent-child bond existed.” See In re A.J.D.-J., 667 S.W.3d at 832–33
(“Having visited her one-year-old child infrequently and irregularly after the child was
removed from her care at birth, the mother does not have a relationship with her child.”);
In re M.D.M., 579 S.W.3d 744, 770 (Tex. App.—Houston [1st Dist.] 2019, no pet.)
(“Evidence that a child . . . has spent minimal time in the presence of the child’s parent is
relevant to the best interest determination and, specifically, is relevant to the child’s
desires.”); see also In re N.S.M., No. 01-20-00764-CV, 2021 WL 1217328, at *4 (Tex.
App.—Houston [1st Dist.] Apr. 1, 2021, pet. denied) (mem. op.) (holding factfinder could
have reasonably found that no parent–child bond existed, given that 14-month-old child
was removed from mother’s care after birth and mother had visited only three or four
times in preceding nine months). In contrast, it was uncontested that B.M.P.J. was well
cared for in his foster placement—the only family he had ever known. See In re L.G.R.,
498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“The stability
of the proposed home environment is an important consideration in determining whether
termination of parental rights is in the child’s best interest.”). It was also uncontested that
B.M.P.J. had bonded with his foster family, who were looking forward to adopting him.
See In re C.H., 89 S.W.3d at 28 (“Evidence about placement plans and adoption are, of
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course, relevant to best interest.”). When considering the need for permanence and the
lack of a relationship between Mother and child, this factor weighs heavily in favor of the
trial court’s best-interest finding. See In re J.W., 645 S.W.3d at 746; In re J.D., 436 S.W.3d
105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (explaining “that the need for
permanence is a paramount consideration for the child’s present and future physical and
emotional needs”).
Having considered the entire record under the appropriate standards of review, we
conclude that the trial court could have formed a firm belief or conviction that terminating
Mother’s parental rights was in the child’s best interest. See TEX. FAM. CODE ANN.
§ 161.001(b)(2). Consequently, the evidence was legally and factually sufficient to
support the trial court’s best-interest finding, and Mother’s second issue is overruled.
V. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Delivered and filed on the
5th day of July, 2024.
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