In the Interest of S.S.B. and A.A.C., Children v. Department of Family and Protective Services ( 2023 )

Opinion issued October 5, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00278-CV
———————————
IN THE INTEREST OF A.A.C., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2021-01162J
MEMORANDUM OPINION
After a bench trial, the trial court terminated the parent-child relationship
between A.R.C. (Mother) and A.A.C. (Alan).1 Mother appeals the termination order,
raising three issues: (1) the evidence is insufficient to support a finding of
constructive abandonment; (2) the evidence is insufficient to support a finding that
1
We use a pseudonym to refer to the child involved here. See TEX. FAM. CODE
§ 109.002(d); TEX. R. APP. P. 9.8(b)(2).
termination is in Alan’s best interest; and (3) the trial court erred by appointing the
Department of Family and Protective Services as Alan’s sole managing conservator.
Because the evidence supports the trial court’s termination order, we affirm.
Background
Alan was born in 2020 and came to the Department’s attention when a report
was made in 2021 alleging neglectful supervision by Mother. In 2021, the
Department petitioned to be named temporary managing conservator of Alan and
his two older siblings, V.H. (Valerie) and S.B. (Sarah), on an emergency basis and
to terminate Mother’s parental rights.2 See TEX. FAM. CODE §§ 105.001(a), 262.101.
The trial court granted the Department’s emergency request and later held a full
adversary hearing. Id. § 262.201. After the adversary hearing, the trial court
appointed the Department as the children’s temporary managing conservator
pending a final hearing in the suit.
Mother’s family service plan listed family reunification as the primary
permanency goal for each child. The plan noted reports that Mother was “unstable”
and had moved “from state to state.” It also noted that Valerie and Sarah reported
that, while under Mother’s care, they were evicted from homes and had their utilities
2
We use a pseudonym to refer to the children. See TEX. R. APP. P. 9.8(b)(2). Mother
has five children. Three of the children (Valerie, Sarah, and Alan) were under
Mother’s care prior to the Department’s care. Her two other children, T.C. (Tina)
and T.C. (Tyler), reside with their father in Houston. Id.
2
shut off. They also reported that Mother physically, mentally, and emotionally
abused them. The plan also stated that Mother was using marijuana while driving
with the children, and that she was admitted to a psychiatric hospital because of
“concerns over her mental health and her being a threat to herself and others.” The
plan required Mother to provide stable housing for the children and maintain that
housing for at least six months; participate in all meetings and court hearings;
maintain monthly contact with the Department; obtain and maintain employment for
at least six months; complete family therapy, as well as substance abuse, psychiatric,
and psychological assessments, and follow all recommendations from these
assessments.
Before trial, the Department filed a permanency report documenting Mother’s
progress on her family service plan. It stated that Mother had obtained housing from
May 2022 to April 2023, was employed, had maintained contact with the
Department, and participated in family therapy. Mother also completed a substance
abuse assessment in December 2021, a psychiatric evaluation in December 2022,
and a psychological evaluation in February 2022, which diagnosed her with bipolar
disorder. She completed substance abuse counseling in December 2022 and
individual counseling in June 2022. Lastly, drug testing showed that she tested
positive for cocaine in November 2022.
3
The permanency report also detailed the Department’s concerns about Alan’s
older siblings, including child neglect and suspected physical abuse. In December
2021, Valerie (17) and Sarah (15) participated in mental health assessments. Both
admitted experiencing suicidal thoughts and self-harm. And both were diagnosed
with adjustment disorder, mixed anxiety, depressed mood, and unspecified trauma.
The assessment recommended therapy for both children and that their
communication with biological family members “be strictly supervised and
monitored to decrease the chances of [them] being privy to information that may
heighten [their] level of anxiety and distress.”
A. Trial
Trial began in January 2023 with brief testimony from J. Coto, the
Department’s caseworker. Coto recounted that Alan was two years old and living in
a foster home in Houston, Texas, and his sister, Sarah, was residing in a 24-hour
residential childcare facility.3 The trial court then recessed until March 2023.
In March, Mother informed the trial court that she agreed with naming Sarah’s
paternal grandmother as Sarah’s sole managing conservator, but she did not want
her parental rights terminated as to Alan. Instead, Mother wanted him also placed
with Sarah’s paternal grandmother, a non-blood relative to Alan, or for the
3
Before trial began, Valerie turned 18.
4
Department to be named Alan’s permanent managing conservator without
terminating her parental rights.
Per Coto, Alan remained in the same foster home where he had been living
since the suit began, and that Sarah was now living with her paternal grandmother.
He testified that Alan had been in his foster home for most of his life, and his foster
parents were meeting his physical and emotional needs and would adopt him if
parental rights were terminated.
Coto next discussed that the three children came to the Department’s attention
most recently because of allegations that Mother smoked marijuana while driving
them from Louisiana to Houston and posted on social media that she needed to save
her family and that they were all going to heaven. Mother then had a “mental health
episode” and was placed in a psychiatric hospital where she stayed for a month.
When asked about the Department’s concerns about Mother, Coto agreed that the
primary concerns were her drug use and mental health issues.
Coto also discussed Mother’s drug testing. Mother lived in Louisiana and only
participated in drug testing when she came to visit Alan, because the Department
would only pay for drug testing done in Texas. She was tested eight times and was
found to have failed twice, once due to medication prescribed by her doctor and once
due to illegal narcotics. Coto explained that he had continuing concerns over
5
Mother’s drug use and that part of her therapy required her to maintain three months
of negative drug tests.
Next, Coto recalled Mother’s history with the Department stemming from
cases in 2012 and 2013, which involved concerns about Mother’s mental health and
child neglect. Mother also had two neglectful-supervision cases in 2015 over
concerns about her drug use and mental health. But only two of the cases, one in
2013 and one in 2015, were ruled as “reason to believe” by the Department.
Addressing Mother’s family service plan, Coto conceded that Mother
completed the psychiatric, psychological, and substance abuse assessments, as well
as individual, family, and substance abuse therapy. And that she was receiving
medication management through a Louisiana service provider. He had also visited
Mother’s home in Louisiana and said it was appropriate.
As to visitation, Coto testified that while Mother had the chance to visit Alan
twice a month since August 2021, she only visited Alan eight times. Mother did not
visit Alan during the first seven months of the case. She then visited him in March,
April, May, July, September, October, and November 2022. Under
cross-examination, Coto explained that the Department did not offer to transport
Alan to visit Mother in Louisiana. Because of Alan’s age, Coto did not think it was
good for Alan to be transported to Louisiana for visits. The Department and the foster
6
parents discussed the possibility of transporting Alan to visits with Mother but
decided that travelling “wouldn’t be best for [Alan].”
According to Coto, Mother was not in regular contact with the Department.
He questioned returning Alan to Mother because Alan had been in his foster parents’
care since the suit began and was attached to them. It was also Coto’s understanding
that Mother was not asking for Alan to be placed in her care, but to live with Sarah’s
paternal grandmother who was 65 years old, already had custody of Sarah, and
worked during the day. Alan was receiving speech therapy twice a month, and had
doctor visits about once a month, so Coto did not “see how that would work.”
Additionally, the grandmother herself had expressed the same concern to the
Department.
Mother testified next. She said she had five children, including: Valerie, who
lived with her; Sarah, who lived with Sarah’s paternal grandmother; Alan, who lived
in a foster home; and two children, Tina and Tyler, who lived with their father in
Houston. As to why this case began, Mother said her mother had asked her to come
to Texas and upon arriving, her sister called the police who then sent Mother to a
mental hospital. Mother recounted that the police talked to her and her sister, who
said Mother was not taking her medication, which is when the police took Mother
to the hospital. While describing the incident as a “set up,” Mother denied suffering
7
from any mental health issues that day. She accused her mother of reporting her to
the Department so that her mother could get the children’s social security checks.
While hospitalized, Mother was diagnosed with bipolar disorder. She
explained that she had previously been diagnosed with bipolar disorder, about five
years before, and was prescribed medication. But she only took the medication
randomly, and she stopped taking the medication when she moved to Louisiana in
2016. At the time of the incident, she explained that she was not taking any
medication because she was busy working and never went to the doctor. After being
discharged from the hospital, she restarted her medication.
When asked about visiting her children, Mother admitted she visited Tina and
Tyler in Houston once a month. As to Alan, she explained that she was not aware
she was allowed to visit him during the first seven months of the case. Mother stated
she began visiting Alan after learning she could. While acknowledging that she
missed some visits, she explained that was because she was busy with work in
Louisiana.
The next witness to testify was R. Reddick, a Child Advocate Volunteer
assigned to the case in September 2021. When asked about first meeting Alan,
Reddick recalled how Alan required medical attention for ear infections. Reddick
next discussed Alan’s relationship with his foster family. She described Alan as very
attached to his foster parents. He was the only child in their home, and they wished
8
to adopt him if parental rights were terminated. Reddick then described how visits
between Alan and Mother were pleasant. And that during the first visit, while it took
Alan some time to warm up to Mother, he eventually did. During later visits, Reddick
described lots of interaction between Mother and Alan and that Mother was always
happy to see him. Still, it was Reddick’s recommendation that Alan be adopted by
his foster parents.
The final witness was Alan’s foster mother. Alan was placed in her home in
late November 2021. She was told that Alan should have been talking when he first
arrived, and his pediatrician recommended that he be taken to an audiologist, a
speech therapist, and an otolaryngologist (ENT). Upon taking Alan to those
appointments, she learned Alan had mild hearing loss in one ear that caused his
speech delays. Alan began seeing a speech therapist who visited the home twice a
week. At the time of trial, Alan was starting to speak in two to three sentences and
was verbalizing his needs and wants but was not yet developmentally on target with
his speech. He was also seeing an allergist and taking medication to address his
allergies to dairy, shellfish, and eggs. Foster Mother also described how because
Alan was chronically congested, his nose had to be suctioned and he needed a
humidifier in his room. She took Alan to see his pediatrician, ENT, and allergist
several times. She estimated that Alan went to see a doctor on average three times a
month.
9
Foster Mother testified that if given the opportunity, she would adopt Alan.
She knew that Alan has older siblings, and she wanted to encourage those
relationships. She described taking him on a weekend visit to see his siblings. She
also testified that she wanted to build up to a relationship between Alan and Mother
and wanted Alan to know all his biological family.
Ultimately, the trial court found that Mother constructively abandoned Alan
under section 161.001(b)(1)(N) of the Texas Family Code and that termination of
her parental rights was in Alan’s best interest. It also found also that the Department
had rebutted the presumption that any parent should be named as Alan’s managing
conservator and appointed the Department as the sole managing conservator.
Sufficiency of the Evidence
In her first issue, Mother challenges the legal and factual sufficiency of the
evidence supporting the trial court’s constructive-abandonment finding. In her
second issue, Mother challenges the legal and factual sufficiency of the trial court’s
best-interest finding.
A. Standard of Review and Law
To terminate the parent-child relationship under Texas Family Code section
161.001, the Department must establish by clear and convincing evidence that the
parent engaged in one or more of the listed grounds for termination and that
termination is in the child’s best interests. See TEX. FAM. CODE § 161.001(b); In re
10
N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam). Involuntary termination of
parental rights is a serious matter implicating fundamental constitutional rights. See
In re of J.F.-G., 627 S.W.3d 304, 311 (Tex. 2021); In re D.R.A., 374 S.W.3d 528,
531 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Although parental rights are
of constitutional magnitude, they are not absolute. See In re A.C., 560 S.W.3d 624,
629 (Tex. 2018).
To be legally or factually sufficient under the clear and convincing standard,
the evidence must be such that a factfinder reasonably could form a firm belief or
conviction that its finding was true. In re J.L., 163 S.W.3d 79, 84 (Tex. 2005); In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). Under this standard, the distinction between
legal and factual sufficiency review “lies in the extent to which disputed evidence
contrary to a finding may be considered.” In re A.C., 560 S.W.3d at 630. In a legal
sufficiency review, we look at the evidence in the light most favorable to the trial
court’s finding, and assume the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so. In re J.L., 163 S.W.3d at 85. We
disregard any evidence that a reasonable factfinder could have disbelieved, but we
do not disregard undisputed facts that do not support the finding. Id.
In a factual sufficiency review, we give due consideration to the evidence that
the factfinder reasonably could have found to be clear and convincing, considering
all the evidence, including evidence in support of and contrary to the trial court’s
11
findings. In re J.F.C., 96 S.W.3d at 266. We analyze whether a reasonable factfinder
could not resolve the disputed evidence in favor of its finding. Id. But we must be
careful not to usurp the factfinder’s role. In re A.B., 437 S.W.3d 498, 503 (Tex.
2014). The factfinder is the sole arbiter of witness credibility. In re J.O.A., 283
S.W.3d 336, 346 (Tex. 2009). In a bench trial, the trial judge is the factfinder who
weighs the evidence, resolves evidentiary conflicts, and evaluates the demeanor and
credibility of witnesses. In re R.J., 579 S.W.3d 97, 117 (Tex. App.—Houston [1st
Dist.] 2019, pet. denied). Because the trial judge saw the witnesses firsthand, we
must give him or her due deference, despite the heightened factual-sufficiency
standard. In re J.S., 584 S.W.3d 622, 634 (Tex. App.—Houston [1st Dist.] 2019, no
pet.). “If, in light of the entire record, the disputed evidence that a reasonable
factfinder could not have credited in favor of the finding is so significant that a
factfinder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at 266. In reviewing all
the evidence, we also keep in mind that the Department has the burden of proof in
this termination proceeding. See id. at 264.
B. Constructive Abandonment
Mother contends that the Department failed to establish that she did not
regularly visit or maintain significant contact with Alan. See TEX. FAM. CODE
12
§ 161.001(b)(1)(N). To prove constructive abandonment, the Department must
establish four elements:
(1) the child has been in the permanent or temporary managing
conservatorship of the Department for at least six months,
(2) the Department has made reasonable efforts to return the child to
the parent,
(3) the parent has not regularly visited or maintained contact with
the child, and
(4) the parent has shown an inability to provide the child with a safe
environment.
See TEX. FAM. CODE § 161.001(b)(1)(N). Because Mother only disputes the third
element, we limit our discussion to that issue. See TEX. R. APP. P. 47.1.
The disputed element focuses on the parent’s conduct, not the Department’s.
See In re A.K.L., No. 01-16-00489-CV, 2016 WL 7164065, at *6 (Tex. App.—
Houston [1st Dist.] Dec. 8, 2016, pet. denied) (mem. op.). Alan was born in
December 2020 and was removed from Mother’s care in July 2021. Alan was placed
with Foster Mother in Houston four months after removal and stayed there through
the completion of trial in March 2023. Mother was allowed to visit Alan twice per
month.
After Alan’s removal, Mother did not visit him for seven months, until March
2022. The first month she did not visit was when she was in a psychiatric hospital.
But the only explanation Mother offered for the next six months is that she did not
13
know she was allowed to visit him. During that same period Mother was in contact
with the Department by phone and Zoom, but she did not ask about visiting Alan.
Mother emphasizes that she made eight visits with Alan during the 20 months he
was in the Department’s care. She visited in March, April, May, July, September,
October, and finally in November 2022. Mother explained that her failure to visit
Alan in December 2022 and January 2023 was due to being busy at work, but she
did not explain why she did not visit in June or August 2022 or in February 2023.
At trial, Mother asked that her rights not be terminated as to Alan but not that
he be returned to her. Instead, she asked that he be placed with Sarah’s grandmother,
a non-blood relative of Alan’s, or for the Department to be named as permanent
managing conservator. Coto testified that Mother had the opportunity to visit Alan
twice a month since the case began. Mother also admitted that she made monthly
visits to see two of her children, Tina and Tyler, who also live in Houston.
In light of Coto’s testimony, the trial court could have disbelieved that Mother
did not know she could visit Alan during the first seven months. See In re R.J., 579
S.W.3d at 117; In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (we
cannot substitute our own judgment for that of the factfinder). We have also
previously held that “[a] parent fails to regularly visit or maintain significant contact
with their children when the parent fails to take advantage of visitation rights or
when visits are intermittent or sporadic.” In re S.M.M., No. 01-22-00482-CV, 2022
14
WL 17981669, at *9 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, pet.
denied) (mem. op.) (citing In re S.S., No. 11-05-00083-CV, 2006 WL 1285125, at
*3 (Tex. App.—Eastland May 11, 2006, no pet.) (mem. op.)).
The record reflects more than just the number of visits by Mother. It also
shows: (1) long periods without contact between Mother and Alan after his removal
and leading up to trial; (2) Mother never asked about visiting Alan during the first
seven months he was in the Department’s care; (3) Mother did not attempt to
maintain contact with Alan by phone or video during the times she did not physically
visit him; (4) she had monthly visits with her other children in the same city as Alan;
and (5) there are three months where Mother did not explain why she did not visit
Alan. See M.C. v. Tex. Dep’t of Fam. and Protective Servs., 300 S.W.3d 305, 310
(Tex. App.—El Paso 2009, pet. denied) (mother did not regularly visit or maintain
significant contact with child when she visited only six to eight times in 12 months);
In re J.J.O., 131 S.W.3d 618, 628–29 (Tex. App.—Fort Worth 2004, no
pet.) (evidence was legally and factually sufficient to support finding that mother
had not regularly visited or maintained significant contact with child because mother
made only 12 visits during nine-month period); In re R.M., No. 14-02-00221-CV,
2003 WL 253291, at * 5 (Tex. App.—Houston [14th Dist.] Feb. 6, 2003, no
pet.) (mem. op.) (parent did not regularly visit or maintain significant contact with
child by visiting six to ten times over 14 months); In re H.R., 87 S.W.3d 691, 699
15
(Tex. App.—San Antonio 2002, no pet.) (evidence was legally and factually
sufficient to support constructive abandonment where parent only made intermittent
visits to child over 10-month period); see also In re T.G., No. 14-09-00299-CV, 2010
WL 1379977, at *7 (Tex. App.—Houston [14th Dist.] Apr. 8, 2010, no pet.) (mem.
op.) (finding sufficient evidence of constructive abandonment where Mother visited
“only occasionally” over eight-month period and did not visit for the seven months
afterward); C. G. v. Tex. Dep’t of Fam. and Protective Servs., No. 03-18-00852-CV,
2019 WL 3367524, at *7 (Tex. App.—Austin July 26, 2019, no pet.) (mem.
op.) (parent failed to maintain significant contact with two children when he
attended only eight of 23 visits, ignored child during some visits, provided no
financial or emotional support, and failed to call or send birthday cards); White v.
Tex. Dep’t of Fam. & Protective Servs., No. 01-04-00221-CV, 2005 WL 174546, at
*6 (Tex. App.—Houston [1st Dist.] Jan. 27, 2005, no pet.) (mem. op.) (visiting
children six times over 10-month period, and leaving visitations early twice, was
enough for factfinder to form belief appellants did not regularly visit or maintain
contact with children).
That Mother explained why she did not visit or contact Alan for several of
those months is not enough under either legal or factual sufficiency review. The trial
court could have disbelieved her reasons and credited the Department’s testimony
and her monthly visits with her other children in the same city. See In re J.L., 163
16
S.W.3d at 85 (reviewing court should disregard all evidence that a reasonable
factfinder could have disbelieved or found to have been incredible in a legal
sufficiency review); In re A.B., 437 S.W.3d at 503 (reviewing court must still
provide due deference to decisions of factfinder, who had full opportunity to observe
witness testimony first-hand and was sole arbiter of assessing witness credibility and
demeanor).
We are mindful that the natural rights between a parent and their children are
of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). But
“[j]ust as it is imperative for courts to recognize the constitutional underpinnings of
the parent-child relationship, it is also essential that emotional and physical interests
of the child not be sacrificed merely to preserve that right.” In re C.H., 89 S.W.3d
17, 26 (Tex. 2002); see also In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013).
Viewing the evidence in the light most favorable to the trial court’s finding,
the factfinder could have formed a firm belief or conviction that Mother had not
regularly visited or maintained contact with Alan. See In re J.L., 163 S.W.3d at 85
(discussing legal sufficiency). The evidence is also factually sufficient because a
reasonable factfinder could have resolved the disputed evidence in favor of the
finding and formed a firm belief or conviction that Mother had not regularly visited
or maintained contact with Alan. See In re J.F.C., 96 S.W.3d at 266 (discussing
17
factual sufficiency); In re H.R.M., 209 S.W.3d at 108 (same). We overrule Mother’s
first issue.
C. Best Interest of the Child
Mother contends that termination was not in Alan’s best interest because the
trial court should have ordered a managing conservatorship that allowed her to
remain in Alan’s life.
“[T]he prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest.” TEX. FAM. CODE § 263.307(a). There is
a strong presumption that the best interest of the child is served by maintaining
custody with the child’s natural parents. In re K.C.M., 4 S.W.3d 392, 399 (Tex.
App.—Houston [1st Dist.] 1999, pet. denied). In determining the best interest of the
child, courts examine several factors, including: (1) the desires of the child; (2) the
emotional and physical needs of the child now and in the future; (3) the emotional
and physical danger to the child now and in the future; (4) the parental abilities of
the individual seeking custody; (5) the programs available to assist the individual to
promote the child’s best interest; (6) the plans for the child by these individuals;
(6) the stability of the home; (7) the acts or omissions of the parent indicating that
the existing parent-child relationship is not a proper one; and (8) any excuse for
parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors, often referred to as the Holley factors, are not exhaustive; some listed
18
may not apply, while other factors not included on the list may also be appropriate.
In re C.H., 89 S.W.3d at 27. The Department need not prove every factor as a
condition precedent to parental termination, and the lack of evidence about some
factors does not preclude a factfinder from reasonably forming a strong conviction
that termination is in the child’s best interest. See id. Sometimes, evidence of even
one Holley factor may be sufficient. Jordan v. Dossey, 325 S.W.3d 700, 729 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied).
The best-interest analysis may include circumstantial evidence, subjective
factors, and the totality of the evidence as well as the direct evidence. In re B.R., 456
S.W.3d 612, 616 (Tex. App.—San Antonio 2015, no pet.). “A trier of fact may
measure a parent’s future conduct by [the parent’s] past conduct and determine
whether termination of parental rights is in the child’s best interest.” Id.; see In re
C.H., 89 S.W.3d at 28 (past performance as parent “could certainly have a bearing
on [parent’s] fitness to provide for” child).
Mother does not dispute that the Holley factors favor termination. We agree.
At the time of trial, Alan was two years old and too young to testify about his own
desires. See Holley, 544 S.W.2d at 371–72 (factor one). But the evidence shows that
Alan is strongly bonded with his foster family with whom he has lived for most of
his life. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014,
no pet.) (“When children are too young to express their desires, the factfinder may
19
consider that the children have bonded with the foster family, are well-cared for by
them, and have spent minimal time with a parent.”).
There is evidence of Mother’s instability in several reports the Department
received about her children. Two reports filed with the Department, one in 2013 for
physical abuse and one in 2015 for neglectful supervision, were found to be believed.
In this case, the trial court placed the three children under the Department’s
temporary managing conservatorship following a report in 2021 that Mother was
using marijuana while driving with the children and was admitted to a psychiatric
hospital. Coto testified that Mother stayed in the hospital for a month, but Mother
stated she was only there for “a week or so.” Mother also acknowledged that she was
diagnosed with bipolar disorder five years earlier but had not been taking medication
regularly since moving to Louisiana in 2016.
Mother’s family service plan noted that the Valerie and Sarah reported having
been evicted from homes and having utilities shut off. The plan also reported that
they stated that Mother was physically, mentally, and emotionally abusive to them.
As discussed above, Valerie and Sarah received mental health assessments in
December 2021 and were diagnosed with adjustment disorder, mixed anxiety,
depressed mood, and unspecified trauma. The assessment also noted child neglect
and suspected physical abuse. Valerie and Sarah also reported experiencing suicidal
thoughts and engaging in self-harm. Mother’s, Valerie’s, and Sarah’s difficulties
20
favor Alan’s termination because it shows Mother’s parental abilities and the
instability of her home. See Holley, 544 S.W.2d at 371–72; See In re M.D.M., 579
S.W.3d 744, 770 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (factfinder may
infer parent’s future conduct from past conduct and should consider history of child
neglect in best-interest analysis); 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.) (parent’s mental health may be considered when determining best interest).
Coto noted that because Mother lived in Louisiana, she did not take drug tests
on a random basis as required by her family plan, but that she was tested eight times.
Mother only tested positive once, for cocaine, in November 2022 before she
completed her drug counseling services. But Mother admitted drug use, including
ecstasy and marijuana, on other occasions after her children were removed from her
care. Mother’s drug use while this case was pending supports the trial court’s
best-interest determination. See In re M.M.M., No. 01-16-00998-CV, 2017 WL
2645435, at *15 (Tex. App.—Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.);
see also In re Y.G., No. 01-22-00181-CV, 2022 WL 3362953, at *13 (Tex. App.—
Houston [1st Dist.] Aug. 16, 2022, pet. denied) (mem. op.) (weighing drug use when
determining second, third, fourth, and seventh Holley factors); TEX. FAM. CODE
§ 263.307(b)(8) (in determining best interest, courts may consider history of
substance abuse by child’s family).
21
Lastly, the evidence supporting the trial court’s constructive-abandonment
finding was also relevant to the best-interest analysis. See In re A.C., 560 S.W.3d at
631–32 (same evidence that is proof for termination under section
161.001(b)(1) may be probative of best-interest determination for the child). As
discussed above, Mother did not visit Alan at all for the first seven months, despite
traveling to Houston to visit two of her other children monthly, and had other months
without visitation. She also made no efforts to have phone or video calls with Alan
when she did not visit. Mother’s failure to regularly visit or maintain contact with
Alan favors termination as well. See In re N.S.M., 2021 WL 1217328, at *4
(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 visited
only three or four times in nine months); In re J.A., No. 01-21-00606-CV, 2022 WL
802982, at *8 (Tex. App.—Houston [1st Dist.] Mar. 17, 2022, no pet.) (mem.
op.) (“A parent’s failure to regularly visit her child after removal may support a
finding that termination of the parent’s rights is in the child’s best interest.”).
Rather than disputing the best interest outcome under Holley, Mother’s only
argument is that the trial court should have established an arrangement short of
terminating her parental rights. She points to Foster Mother’s testimony that she
would want Alan to have a relationship with Mother as evidence that the trial court
22
should not have terminated her parental rights. But Mother has provided no authority
for her assertion that the trial court had to fashion an alternative to termination.
Although we agree that the right to parent is one of constitutional dimension,
the Department need not show that other alternatives, short of termination, are
available. See In re N.A., Nos. 02-13-00345-CV, 02-13-00346-CV, 2014 WL
814195, at *7 (Tex. App.—Fort Worth Feb. 28, 2014, no pet.) (mem. op.); In re
V.L.A., No. 02-13-00147-CV, 2013 WL 5434008, at *7 (Tex. App.—Fort Worth
Sept. 26, 2013, no pet.) (mem. op.). Foster Mother’s testimony was evidence the trial
court could consider in deciding whether termination was in Alan’s best interest.
And the trial court would have considered this along with evidence that Mother was
engaging in services outlined in her family services plan. Mother had provided
evidence of her lease and employment; her participation in family therapy;
completion of a substance abuse evaluation in December 2021; completion of a
psychiatric evaluation in December 2022; completion of a psychological evaluation
in February 2022; completion of substance abuse counseling in December 2022;
completion of individual counseling in June 2022; and that she began taking
medication for her bipolar disorder after her hospitalization in 2021. To the extent
that any of that evidence contradicted the trial court’s finding, we assume the
factfinder resolved the dispute in favor of its finding. See In re A.C., 560 S.W.3d at
630–31 (discussing legal sufficiency). Even when considering the disputed evidence
23
against the evidence favorable to the finding, we must still give deference to the
factfinder, who observed witness testimony firsthand, and is the sole arbiter of
assessing the credibility and demeanor of witnesses. See id. at 631 (discussing
factual sufficiency); In re. A.B., 437 S.W.3d at 503 (same).
Considering the record, a factfinder could have reasonably formed a firm
belief or conviction that termination of Mother’s parental rights was in Alan’s best
interest. See TEX. FAM. CODE §§ 161.001(b)(2), 263.307(b); Holley, 544 S.W.2d at
371–72. We hold that the evidence was legally and factually sufficient to support the
trial court’s best-interest finding. We overrule Mother’s second issue.
Conservatorship
In her final issue, Mother challenges the appointment of the Department as
sole managing conservator.
When the parental rights of all living parents of a child are terminated, the
trial court must appoint a “competent adult, the Department of Family and Protective
Services, or a licensed child-placing agency as managing conservator of the child.”
TEX. FAM. CODE § 161.207(a); see In re J.D.G., 570 S.W.3d 839, 856 (Tex. App.—
Houston [1st Dist.] 2018, pet. den.). We review conservatorship determinations for
an abuse of discretion and reverse only if the decision is arbitrary and unreasonable.
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.C., 394 S.W.3d 633, 644 (Tex.
App.—Houston [1st Dist.] 2012, no pet.).
24
An order terminating the parent-child relationship divests a parent of legal
rights and duties toward the child. See TEX. FAM. CODE § 161.206(b). Once we
overrule a parent’s challenge to an order terminating parental rights, the trial court’s
appointment of the Department as sole managing conservator may be considered a
“consequence of the termination.” In re D.K.W., Jr., No. 01-17-00622-CV, 2017 WL
6520439, at *5 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet. denied) (mem.
op.). Because Mother’s challenge to the trial court’s order terminating her parental
rights has been overruled, the order has divested Mother of her legal rights and duties
related to Alan. See TEX. FAM. CODE § 161.206(b). So Mother lacks standing to
challenge the appointment of the Department as Alan’s sole managing conservator.
See In re J.D.G., 570 S.W.3d at 855–56; see also E.A. v. Tex. Dep’t of Fam. &
Protective Servs., No. 03-15-00811-CV, 2016 WL 1639847, at *4 (Tex. App.—
Austin Apr. 21, 2016, pet. denied) (mem. op.) (holding that because Mother had
been divested of her legal rights to child, she could not challenge conservatorship
determination). We overrule Mother’s final issue.
Conclusion
We affirm the judgment of the trial court.
Sarah Beth Landau
Justice
Panel consists of Justices Kelly, Landau, and Farris.
25