S.L. v. Department of Family and Protective Services ( 2022 )

Affirmed and Memorandum Opinion filed September 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00194-CV
S.L., Appellant
V.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2021-20430
MEMORANDUM OPINION
This accelerated appeal arises from a final order in which, after a final
hearing tried to the bench, the trial court terminated the parental rights of appellant
S.L. (Mother) with respect to her daughter A.L.R. (Andie),1 who was 15-months
old at the time of the final hearing, and appointed appellee Department of Family
and Protective Services (the Department) to be Andie’s sole permanent managing
1
To protect the minor’s identity, we have not used the actual names of the child, parents,
or other family members. See Tex. R. App. P. 9.8.
conservator. See Tex. Fam. Code Ann. § 109.002(a-1) (accelerated appeals in
parental-termination cases); Tex. R. App. P. 28.4 (same).
This appeal presents a somewhat unusual situation in which Mother has
conceded the predicate grounds for termination and, in a single issue, challenges
only the factual sufficiency2 of the evidence to support the trial court’s findings in
its final order that termination is in the best interest of Andie, effectively
acknowledging the legal sufficiency of the evidence to support the final order. See
Tex. Fam. Code Ann. § 161.001(b)(2). We affirm.
I. BACKGROUND
Andie was born in October 2020. When Andie was three months old,
Mother tested positive for cocaine and, because Mother had an active termination
proceeding related to another child, Andie was removed and placed in foster care.
The man that Mother alleged to be Andie’s father was never identified or found.3
The Department sought and received temporary conservatorship over Andie.
A final permanency hearing was held in January 2022, at which the
Department sought to have Andie’s current foster parents appointed as permanent
managing conservators. Mother had made progress on her service plan, and the
Department wanted to continue to work with her. Before the final hearing, the
attorney ad litem representing Andie’s interests filed a counter-petition asserting
grounds for termination and that termination was in Andie’s best interest. See Tex.
Fam. Code Ann. § 161.001. The attorney ad litem argued at the final hearing there
2
While Mother did not file a motion for new trial, “[i]n a nonjury case, a complaint
regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on
appeal in the complaining party’s brief.” Tex. R. App. P. 33.1(d).
3
Andie’s presumed father, Q.W., was never found or served. Q.W.’s interests were
represented by an appointed attorney at the hearing. The trial court terminated Q.W.’s parental
rights, as well as the rights of any unknown father, which has not been challenged on appeal. See
Tex. Fam. Code Ann. § 161.002.
2
was clear and convincing evidence establishing that termination of Mother’s rights
was in Andie’s best interest.
The trial court made no oral ruling but took the parties’ arguments under
advisement. The trial court later signed a final order of termination with findings in
its final order (1) on the predicate ground of endangerment, (2) on the predicate
ground of failure to comply with the court-ordered family-service plan, and (3) that
termination is in the best interest of Andie. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(E), (O), (b)(2). The Department was named as Andie’s sole
managing conservator.
A. Documentary evidence admitted in this proceeding
1. Temporary order following adversary hearing
In February 2021, the trial court found there was an immediate danger to
Andie’s physical health or safety and that it was contrary to her welfare to remain
with Mother. As a result of these findings, the trial court named the Department as
the temporary managing conservator of Andie with rights to physical possession of
Andie until a full adversary hearing was held.
2. Family-plan evaluation
According to the Department’s family-plan evaluation (referred to
subsequently as the service plan), which was admitted into evidence at the final
hearing, the goal for Andie was to have a safe and stable environment where she
could meet all of her developmental and emotional needs and be free from abuse
and neglect. The service plan, written by the caseworker, stated the Department
“continues to worry that [Mother] is unable to appropriate supervise and care for
[Andie] due to her continued substance use.”
The plan outlined the required actions for Mother including the following:
3
• maintain safe, stable housing for her children;
• obtain and maintain legal employment for more than six months;
• participate in random drug testing (urinalysis and hair follicle testing);
• attend and complete a parenting class;
• attend and complete a substance-abuse assessment and follow all
recommendations for treatment;
• attend and participate in a psycho-social evaluation to address her
history of mental health concerns;
• attend and complete counseling session; and
• attend and participate in a domestic violence class to address her
history of aggression.
3. Prior termination order
The trial court admitted a 2019 court order from a separate proceeding
terminating Mother’s parental rights to “Jason,” now five years old. See No. 18-E-
0532 (130th Dist. Ct., Matagorda County, Tex. June 25, 2019). The final order
regarding Jason included the following findings supporting termination of
Mother’s parental rights (1) on the predicate ground of endangerment, (2) on the
predicate ground of voluntary abandonment; (3) on the predicate ground of failure
to comply with the court-ordered family-service plan, and (4) that termination is in
the best interest of Jason. Id.; see Tex. Fam. Code Ann. § 161.001(b)(1)(A) (B),
(D), (E), (O), (b)(2).
4. No contact order for Jason’s father
The trial court admitted a no-contact order granted by the 180th District
Court in Harris County in a separate criminal proceeding protecting Mother from
any contact with Jason’s father. State v. Rose, No. 163643201010 (180 Dist. Ct.,
Harris County, Tex. June 28, 2019).
4
5. Social-media evidence
The trial court admitted Facebook posts from Mother authenticated by a
witness who communicated with her on Facebook. Some of the posts were
advertisements for the creation of forged government, financial, and employment
documents in the 12 months before the final hearing.
B. Testimony at the final hearing
1. CPS caseworker
Child Protective Services (CPS) caseworker A. Debose testified that Andie
was placed in foster care because Mother tested positive for cocaine when Andie
was three months old. At that time Mother was the respondent in another CPS case
involving Mother’s two-year old (“Alice”).
In the CPS case involving Alice, the Department’s concern was that Mother
was in a relationship with Jason’s father, who had repeatedly committed violent
acts against Mother and exposed Mother’s children to violence. Mother’s rights to
Alice were not terminated; however, Alice is currently living with a friend of the
family, Mrs. W.
Debose testified that domestic violence was not a concern in this case
although on examination she admitted that she had seen Jason’s father at Mother’s
apartment in September 2021. Debose authenticated a photo she had taken in
September 2021 in which Jason’s father is seen sitting on the patio with Mother at
Mother’s apartment.
Mother’s parental rights to Jason were terminated in 2019. Jason came into
care because Mother gave birth to Jason while incarcerated in Bexar County. Jason
was taken in by Mr. and Mrs. R (Foster Mother and Foster Father) who ultimately
adopted Jason. Foster Mother and Foster Father are currently caring for Andie as
5
well. Debose testified that Foster Mother and Foster Father were willing to care for
Andie long-term even if Mother’s parental rights were not terminated.
Debose was not as familiar with Mother’s involvement in the lives of her
older three children because the Department was never involved with them. She
did testify that two of Mother’s children were presently living with Mother:
five-year old “Mary” and six-year old “Kate.”
Debose testified that Mother had not tested positive for drugs in a year,
although she had missed several urine tests in the months leading up to the final
hearing. She also testified that Mother had not been charged with any new crimes
during the pendency of the case.
Debose initially testified that Mother had completed her service plan.
However, on further examination, Debose testified that Mother was not presently
employed and that she had not complied with the requirement in the plan that she
maintain stable employment for six months. Mother provided documentation to
Debose reflecting that she obtained employment in a rehabilitation facility in
October 2021. However, she was no longer working there as of December 2021.
Debose testified she was aware Mother had an extensive criminal history,
and Mother was on probation at the time of the final hearing for two felony
convictions.
Debose testified that Andie is doing well in her foster home and all her
needs are being met. Reports reflect that Andie is a happy child who is always
smiling. Debose testified that Andie is bonded with Foster Mother and Foster
Father and that she has also bonded with her brother Jason. She also testified that
Mother regularly visited Andie and their visits were appropriate. Debose testified
that she felt it was in Andie’s best interest to stay in her current foster home.
6
2. Mother
Mother testified that Andie is well cared for with Foster Mother and Foster
Father. She had been visiting Andie weekly. Mother also testified that she secured
stable housing. Though she is not the lessee, she testified that she was designated
as an occupant on the lease.4 She described that she was learning how to care for
her kids and be part of their life.
Mother testified that she never had the opportunity to care for Alice or
Jason. However, she testified that Andie was in her care for approximately three
months before removal. She also testified that she was Mary’s caregiver for several
months until she became incarcerated, at which point Mary went to live with Mrs.
W. Mother testified she was Kate’s caregiver for the majority of Kate’s life.
However, she acknowledged that Kate had been in Louisiana with her father for
the last year and that Kate’s great grandmother, before her death, was very
involved in caring for Kate. Mother also testified that her oldest daughter,
“Briana,” has lived with her maternal grandmother for nearly all of her life. Mother
was sentenced to prison when Briana was less than a year old, and Briana lived
with her grandmother while Mother served her five-year sentence. After she was
released, Briana stayed with her grandmother and Mother would come visit with
her mother and Briana. Mother testified that Briana intends to stay with her
grandmother until she finishes school.
Though none of her convictions were admitted into evidence, Mother
testified to her criminal record. Mother has an extensive criminal record beginning
in 2007.5 In 2009, when Briana was a baby, Mother pleaded guilty to burglary of a
habitation and was sentenced to five years imprisonment. Since that time, Mother
4
The lease was never admitted into evidence.
5
Mother was seventeen years old at the time of her first conviction.
7
has been convicted of a variety of different offenses, mostly theft-related crimes.
Mother is currently on probation for two different felony convictions: felony theft
and tampering with evidence. Mother has not been charged with any crime since
January 2021.
Mother was asked about the Facebook posts which were entered into
evidence, and she testified that it was not her Facebook page.
3. Foster Mother6
Foster Mother testified that she and her husband have been caring for Jason
since June 2018. Andie came into their home in June 2021 when Andie was
approximately nine months old. She testified that Jason and Andie have bonded
tightly. She also testified that Andie had bonded with her and Foster Father.
Foster Mother has known Mother for nearly ten years and has interacted
with all of Mother’s children. Briana, who is now 13, went to live with her
grandmother when Mother went into the correctional system. Foster Mother is also
the godmother to Kate. She recalled that Kate has been primarily raised by her
great-grandmother but has also spent time with her father in Louisiana.
Foster Mother testified that Mary had been cared for by Mrs. W for almost
her whole life along with some help from Mary’s great grandmother. When Mother
gave birth to Jason in county jail, Foster Mother and Foster Father agreed to take
him because there was no one else to care for him. After Mother’s parental rights
were terminated, they adopted Jason. When CPS became involved with Andie,
CPS contacted Foster Mother and Foster Father and asked if they would take her.
Andie has been in their house since that time. Foster Mother described Jason as
healthy and smart.
6
Foster Father also testified but his testimony was cumulative of Foster Mother’s
testimony.
8
Foster Mother testified that she and Foster Father are willing to provide
long-term care for both children.
4. Family friend
Mrs. W testified that she is currently the caregiver for Alice. Mrs. W was
previously married to Alice and Jason’s grandfather. Mrs. W has known Mother
since 2016.
When Mary was one month old, Mrs. W’s daughter brought Mary to her
home and Mrs. W began caring for Mary. She testified that Mary lived with her for
approximately five years until just a few months before the final hearing. Mrs. W
explained that Mother recently asked Mary to attend a birthday party for Briana.
Mother picked up Mary from Mrs. W’s care, never brought her back and has cut
off contact since that time. Mrs. W cared for Mary without any court orders or CPS
involvement. She testified that Mary was very attached to her as well her sister,
Alice.
In 2019, after Alice was born, Mother left Alice at the hospital and
instructed the hospital to call Mrs. W to pick up Alice. She testified that Alice has
lived with her since that time.
Mrs. W testified that although Mother was ordered to pay child support for
Alice she has only received two payments. She also testified that Mother provided
occasional clothing for Mary and Alice, but no other financial assistance.
Mrs. W has communicated with Mother via social media and testified she
communicated with Mother using the Facebook profile in evidence.
II. ANALYSIS
In her appellate brief, Mother concedes “grounds”—the predicate
termination grounds found by the trial court. Mother does not raise any allegation
9
of error with respect to the legal sufficiency of the evidence supporting either the
grounds for termination or the best-interest determination. See Tex. Fam. Code
Ann. § 161.001(b)(1), (2). In this appeal, Mother challenges only the factual
sufficiency of the evidence to support the trial court’s finding that termination of
her parental rights is in the best interest of Andie.7 See Tex. Fam. Code Ann.
§ 161.001(b)(2). The Department did not file any briefing in this appeal.
A. Burden of proof
Involuntary termination of parental rights is a serious matter that implicates
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Although parental rights are of constitutional magnitude, they are not absolute. In
re C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just 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.”). Given the fundamental liberty interests at stake,
“termination proceedings should be strictly scrutinized, and involuntary
termination statutes are strictly construed in favor of the parent.” Holick, 685
S.W.2d at 20.
7
Mother does not assert any legal error on the part of the trial court. “A ‘[f]actual
sufficiency . . . [challenge] concede[s] conflicting evidence on an issue’ (which made it
appropriate for the jury to consider), ‘yet maintain[s] that the evidence against the jury’s finding
is so great[,]’ or the evidence for the jury’s finding is so weak, ‘as to make the finding
erroneous.’” W. Wendell Hall & Ryan G. Anderson, Standards of Review in Texas, 50 St.
Mary’s L.J. 1099, 1133 (2019) (citing Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co., 766 S.W.2d
264, 275 (Tex. App.—Amarillo 1988, writ denied)). Hall and Anderson, in their article, question
the status of the factual-sufficiency review in civil cases noting that “the supreme court has not
decided a major case that addressed the line between legal and factual sufficiency standards since
2006, and then only in the specialized context of punitive damage awards.” Id. at 1154–55.
Whether a holding that evidence is factually insufficient is reversible error in the underlying
trial-court final judgment or final order or is instead a constitutional, separate power to make
decisions on questions of fact is something we need not decide in this appeal. See Tex. Const.
art. V, § 6(a) (factual conclusivity clause).
10
Due to the severity and permanency of terminating the parental relationship,
the law in Texas requires clear and convincing evidence to support such an order.
See Tex. Fam. Code Ann. § 161.001(b); In re J.F.C., 96 S.W.3d 256, 265–66 (Tex.
2002). “Clear and convincing evidence” means “the measure or degree of proof
that will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007;
J.F.C., 96 S.W.3d at 264.
B. Factual-sufficiency review
The authority to conduct a factual-sufficiency review lies exclusively with
the courts of appeals. Tex. Const. art. V, § 6(a). The heightened burden of proof in
termination cases results in a heightened standard of review. See J.F.C., 96 S.W.3d
at 266–67. A proper factual-sufficiency review requires the court of appeals to
determine whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction about the truth of the allegations. In re A.B., 437 S.W.3d
498, 502–03 (Tex. 2014). “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.” J.F.C., 96 S.W.3d at 266. A
reviewing court must undertake “an exacting review of the entire record with a
healthy regard for the constitutional interests at stake.” See A.B., 437 S.W.3d at
503. However, the factfinder remains the sole arbiter in assessing the credibility
and demeanor of witnesses. Id.
Though Mother asserts there was ample evidence her parental rights should
not have been terminated, she does not challenge the legal sufficiency of the
evidence, acknowledging the conflicting evidence in the record.
11
C. Best interest of the child
1. Holley factors
Mother concedes the predicate termination grounds but challenges the
factual sufficiency of the evidence to support the trial court’s finding that
termination of her parental rights is in the best interest of Andie. See Tex. Fam.
Code Ann. § 161.001(b)(2).
There is a strong presumption the best interest of a child is served by
keeping the child with a natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (per curiam) (citing Tex. Fam. Code Ann. § 153.131(b)). However, prompt
and permanent placement of a child in a safe environment is also presumed to be in
the child’s best interest. Tex. Fam. Code Ann. § 263.307(a). The considerations the
factfinder may use to determine the best interest of the child, known as the Holley
factors, include:
(1) the desires of the child;
(2) the present and future physical and emotional needs of the child;
(3) the present and future physical and emotional danger to the child;
(4) the parental abilities of the person seeking custody;
(5) the programs available to assist the person seeking custody in
promoting the best interest of the children;
(6) the plans for the child by the individuals or agency seeking
custody;
(7) the stability of the home or proposed placement;
(8) acts or omissions of the parent that may indicate the existing
parent-child relationship is not appropriate; and
(9) any excuse for the parent’s acts or omissions.
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also Tex. Fam.
Code Ann. § 263.307(b) (listing factors to be considered in evaluating “whether
12
the child’s parents are willing and able to provide the child with a safe
environment”). A best-interest finding does not require proof of any unique set of
factors or limit proof to any specific factors. See Holley, 544 S.W.2d at 371–72.
In reviewing the legal and factual sufficiency of the evidence to support the
trial court’s finding on best interest, we are mindful the focus in a best-interest
analysis is not only on the parent’s acts or omissions, but also on the nature of the
relationship the children have with the parent. See In re E.N.C., 384 S.W.3d 796,
808 (Tex. 2012).
2. Sufficiency of the evidence
a. Desires of the child (Holley factor 1)
Andie was removed from Mother when she was three months old and was
approximately 15 months old at the time of final hearing. When a child is too
young to express its desires, the factfinder may consider whether the child has
bonded with the foster parents, are well-cared-for by the foster parents, and have
spent minimal time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied). A child’s need for permanence through the
establishment of a “stable, permanent home” has sometimes been recognized as the
paramount consideration in a best-interest determination. See In re K.C., 219
S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.). Therefore, evidence about the
present and future placement is relevant to the best-interest determination. See
C.H., 89 S.W.3d at 28.
Here, the evidence reflects Andie was placed with Foster Mother and Foster
Father and has been doing well. The caseworker testified Andie was a happy child
and doing very well in her foster placement. Andie is living with Jason, her
biological brother, and Foster Mother testified that Andie and Jason are bonded.
Foster Mother testified she and Foster Father wish to adopt Andie if possible.
13
The caseworker also testified that Mother had regularly visited Andie. She
testified that the visits were appropriate, and Andie bonded with Mother during
visitation. Though she did not recommend termination, the caseworker testified
that Andie’s best interests were served by remaining with Foster Mother and Foster
Father.
Mother argues that this factor should be neutral given Andie’s age.
However, in light of the evidence that she was very bonded to her brother and
foster family, as well as her need for stability and permanence, Holley factor 1
weighs in favor of the trial court’s finding that termination was in Andie’s best
interest.
b. Physical and emotional needs of the child and the physical
and emotional danger to the child (Holley factors 2 and 3)
Though the evidence established Andie had no special needs, she has the
emotional and physical needs of all young children.
“Conduct that subjects a child to [a] life of uncertainty and instability
endangers the child’s physical and emotional well-being.” Jordan v. Dossey, 325
S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Evidence of
a parent’s unstable lifestyle can support a factfinder’s conclusion that termination
of parental rights is in the child’s best interest. In re S.B., 207 S.W.3d 877, 887
(Tex. App.—Fort Worth 2006, no pet.). Lack of stability, including a stable home,
supports a finding that the parent is unable to provide for a child’s emotional and
physical needs. See In re G.M.G., 444 S.W.3d 46, 59–60 (Tex. App.—Houston
[14th Dist.] 2014, no pet.); see also Doyle v. Tex. Dep’t of Protective & Regulatory
Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000, pet. denied) (parent’s
failure to provide stable home and provide for child’s needs may contribute to
finding that termination of parental rights is in child’s best interest).
14
At the time of the final hearing, Mother had complied with one of the
service-plan requirements and secured the lease of an apartment. She had been in
her apartment for just under a year. Though Mother had stable housing, the
evidence at the final hearing reflected that Mother had a history of instability. She
had been in and out of the correctional system her entire adult life. While criminal
violations and incarceration are not enough to show endangerment by themselves,
they can be evidence of endangerment if shown to be part of a course of conduct
that is endangering to the child. See Tex. Dep’t of Human Services v. Boyd, 727
S.W.2d 531, 533–34 (Tex. 1987). Mother’s criminal convictions also prevented
Mother from having much involvement in the care and upbringing of her older five
children. The attorney ad litem representing Andie expressed concern and brought
forth evidence reflecting that Mother still had contact with Jason’s and Alice’s
father, who had a history of violent behavior towards Mother, and allowed him to
visit the apartment she shared with her children.
Mother argues the evidence that she secured housing combined with the
caseworker’s testimony that she had no concerns with Mother’s housing should
weigh in favor of not terminating Mother’s parental rights. However, Holley
factors 2 and 3 are intended to encompass more than Mother’s present ability to
secure housing. Mother was not employed at the time of the final hearing and had
no evidence of stable employment for several years. Mother did not successfully
complete her service plan as she was unable to demonstrate stable employment for
at least six months. At the final hearing, there was no evidence that Mother had the
means or resources to support herself and the needs of her children. Mother was on
probation for two offenses at the time of the final hearing, one of which was a 10-
year probation which Mother recalls was assessed in 2019. Given Mother’s
unstable lifestyle and current probations, there was clear-and-convincing evidence
15
reflecting that Mother’s lifestyle, instability and long-term probations posed
emotional and physical danger to Andie. Though Andie has no special needs, her
best interests are served in a stable environment where she can thrive emotionally
and physically. We conclude Holley factors 2 and 3 weigh in favor of the trial
court’s finding that termination was in Andie’s best interest.
c. Parenting abilities and programs available (Holley factors 4
and 5)
There is little evidence in the record of Mother’s parenting abilities. Briana,
her thirteen-year-old daughter, lives with her grandmother and has spent nearly her
entire life in her grandmother’s care. Though Kate and Mary lived with Mother at
the time of the final hearing, Mother testified that Kate has moved around between
family members who cared for her. Mother also testified that Mary had spent large
portions of her life living with Mrs. W. Both Jason and Alice were removed from
Mother shortly after they were born. Andie was removed from Mother when she
was just three months old. Testimony from Mrs. W and Foster Mother, who had
both known Mother for several years, supported the conclusion that Mother had
not been very involved in the day-to-day care for any of her children for any length
of time.
Mother argues that she demonstrated her parenting abilities by raising Kate
and Mary. However, testimony at the final hearing established that Kate and Mary
had only very recently come to live with Mother. Though Mother is seeking an
opportunity to prove herself as a parent, the factfinder could have determined from
her pattern of conduct with her older children that she lacks the parenting abilities
to care for Andie. Holley factor 4 weighs in favor of the trial court’s finding that
termination was in Andie’s best interest.
There are programs available to help Mother improve her parenting abilities
16
and find stability such as counseling and parenting classes. Testimony at the final
hearing reflects that Mother participated in the required classes and made progress.
However, given Mother’s history, Holley factor 5—the programs available to assist
the person seeking custody in promoting the best interest of the child—is neutral
with respect to trial court’s best-interest determination.
d. Mother’s service plan (Holley factor 6)
A parent’s performance under a service plan is also relevant to several of the
Holley factors, including the emotional and physical danger to the child now and in
the future, parental abilities, and stability. Holley, 544 S.W.2d at 371–72. It is also
relevant to many of the statutory factors for determining the best interest of the
child: (1) the willingness of the parent to seek out, accept, and complete counseling
services; (2) the willingness and ability of the parent to effective positive changes
within a reasonable time; and (3) whether the parent demonstrates adequate
parenting skills. Tex. Fam. Code Ann. § 263.307(b)(10), (b)(11), (b)(12). Given
the connection between a service plan and the Holley and statutory factors, a
parent’s actions with regard to the service plan are relevant to a child’s best
interest. See In re E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2012) (“[m]any of the
reasons supporting termination under subsection O also support the trial court’s
best interest finding”); see also In re M.G.D., 108 S.W.3d 508, 515 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied) (“we believe a parent’s recent turnaround
and compliance with a family service plan are factors jurors should consider, but
not determinative ones. If the facts involved show progress may take a very long
time . . . reasonable jurors may conclude that termination is clearly and
convincingly in the child’s best interest”).
Mother made significant progress on her service plan. She completed
classes, she secured stable housing, and she had no positive drug tests since
17
Andie’s removal. However, Mother was not able to secure and maintain stable
employment for six months. She also offered no explanation for why she was
unable to find stable employment or how she was supporting herself and her
children. This evidence weighs in favor of the trial court’s finding and
determination.
e. Current placement of the child (Holley factor 7)
The caseworker and Foster Mother testified Andie was thriving in her
current placement with Foster Mother and Father. She was living with her
biological brother, Jason, who had been adopted by Foster Mother and Father, and
the two were bonded. The evidence established Andie’s current placement is very
stable and loving. Foster Mother testified that she and Foster Father wanted to
adopt Andie and raise Andie and Jason together.
Mother argues that this factor is neutral because “preserving and maintaining
Mother’s parental rights, arguably, would do nothing to disrupt or prevent
continued placement with the fictive placement.” Therefore, while she concedes
that Andie’s current placement has provided a stable, loving home for Andie, she
argues that termination under these facts is unnecessary and improper. Given that
Foster Mother stated that she would continue to care for Andie even if adoption
were not an option, we agree with Mother that termination is not necessary for
Andie to continue in this placement.
However, Holley factors 6 and 7 ask us to consider the stability of the home
or proposed placement and the plans for the child. Andie’s current placement
offers a stable home with parents who are both employed and have demonstrated
their ability to provide for and parent young children. See E.N.C., 384 S.W.3d at
808–09 (DFPS “presented no evidence that another family wishe[d] to adopt the
children, or that the children’s foster parents c[ould] provide for them in a way
18
[their parent could] [ ]not”). The evidence that Foster Mother and Foster Father
would like to adopt Andie and raise her with her biological brother weighs in favor
of the trial court’s finding and determination that termination was in Andie’s best
interest.
f. Acts and omissions of the parent and any excuse for those acts
or omissions (Holley factors 8 and 9)
The final two Holley factors consider the acts or omissions of the parent that
may indicate the existing parent-child relationship is not appropriate and any
excuse for the parent’s acts or omissions. The evidence addressing Holley factor 8
has already been discussed with respect to other Holley factors. While Mother was
using illegal drugs shortly after Andie’s birth, Mother established at trial that she
had not tested positive for any illegal drugs since Andie’s case opened. However,
the evidence discussed above regarding Mother’s unstable lifestyle and lack of
employment weighs in favor of termination.
Finally, under Holley factor 9, we consider whether there was any excuse for
Mother’s acts or omissions. Mother attributed her lack of previous involvement
with her older children to her incarcerations. She did not offer any other excuse for
her prior acts or omissions, though we note that Mother had made efforts to
comply with her service plan. We conclude this factor is neutral with respect to the
question of whether termination of Mother’s parental rights was in Andie’s best
interest.
g. Analysis
We agree with Mother there is a strong presumption that the best interest of
a child is served by keeping the child with a natural parent. See Tex. Fam. Code
Ann. § 153.131(b). However, that presumption may be rebutted with evidence, as
it was here in the final hearing. Further, we are mindful that prompt and permanent
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placement of a child in a safe environment is also presumed to be in the child’s
best interest. Tex. Fam. Code Ann. § 263.307(a).
The evidence at the final hearing supports the trial court’s finding that
termination of Mother’s parental rights is in Andie’s best interest, including the
evidence of the stability of Andie’s current placement, Andie’s progress in that
placement, Foster Mother and Foster Father’s intention to adopt Andie, the
instability of Mother’s life, her criminal history and current long-term probation, as
well as the comparative lack of evidence regarding Mother’s resources and ability
to care for her children. See In re L.M., 572 S.W.3d 823, 838 (Tex. App.—Houston
[14th Dist.] 2019, no pet.) (“[T]he trial court reasonably could have formed a firm
belief or conviction that terminating Father’s parental rights was in the child’s best
interest so that she could promptly achieve permanency through adoption.”).
Though Mother testified that she had not been charged with any criminal activity
or tested positive for illegal drugs during the pendency of the case, there were
Facebook posts and testimony by a witness, introduced by the attorney ad litem for
the child, that Mother had been advertising the sale of forged government
documents in Facebook posts during the pendency of the case. This evidence,
although denied by Mother, could have convinced the factfinder that Mother had
not made the long-term positive changes needed for Andie’s stability and for the
benefit of the parent-child relationship. Moreover, Mother’s lack of involvement
with her older children also supports the finding of the trial court.
Much of the evidence presented to the trial court was in the form of witness
testimony, and we are mindful that the trial court is the sole arbiter of witness
credibility. See A.B., 437 S.W.3d at 503. Considering and weighing the disputed
evidence contrary to the best-interest determination against all the evidence
favoring the best-interest determination, giving due deference to the trial court’s
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findings, and after an exacting review of the entire record with a healthy regard for
the constitutional interests at stake, we conclude the evidence is such that a
factfinder could reasonably form a firm belief or conviction that termination of
Mother’s parental rights was in Andie’s best interest. See In re A.B., 437 S.W.3d at
503; In re J.O.A., 283 S.W.3d at 345. Thus, the evidence is not factually
insufficient regarding the trial court’s best-interest determination.
We overrule Mother’s sole issue.
III. CONCLUSION
We affirm the trial court’s final order as challenged on appeal.
/s/ Charles A. Spain
Justice
Panel consists of Justices Zimmerer, Spain, and Poissant.
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