in the Interest of J.B., a Child v. Texas Department of Family and Protective Services

Affirmed and Memorandum Opinion filed April 29, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00766-CV
IN THE INTEREST OF J.B., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2019-01718J
MEMORANDUM OPINION
The trial court terminated a mother’s parental rights to her four-year-old child,
J.B., on predicate grounds of endangering conduct and failure to comply with her
family service plan. The court also found that termination was in the child’s best
interest and appointed the Department of Family and Protective Services (the
“Department”) as sole managing conservator. On appeal, the mother challenges the
legal and factual sufficiency of the evidence to support the predicate grounds, as well
as the best-interest finding and the appointment of the Department as J.B.’s
managing conservator. Because we conclude that legally and factually sufficient
evidence supports the trial court’s findings of endangering conduct, best interest, and
the appointment of the Department as J.B.’s managing conservator, we affirm the
judgment.
Background
On April 23, 2019, the Department filed a petition to terminate the parental
rights of J.B.’s mother (“Mother”). J.B., born June 15, 2016, was removed from
Mother’s care on April 23, 2019 pursuant to an emergency order for protection that
appointed the Department J.B.’s emergency temporary sole managing conservator.
The trial on the Department’s petition commenced briefly on July 23, 2020, then
recessed and recommenced on October 1, 2020. The following evidence was
presented at trial.
J.B. came to the Department’s attention after he was taken to Memorial
Hermann Hospital on April 18, 2019 for injuries sustained in a car accident. J.B.,
then two years old, was ejected forty feet from the vehicle during a crash. Mother
testified that J.B. was properly restrained in the vehicle and only received minor
bruising in the accident. However, according to hospital records, J.B. was not
properly restrained, “ha[d] abrasions on his face consistent with a MVA,” had
“numerous abrasions to face and upper torso,” and suffered bruising to “90 percent
of his face.”
Mother was in the vehicle and also ejected. She lost consciousness at the
scene and was taken to the hospital by ambulance. According to Mother’s hospital
records, she was an unrestrained passenger in the car. The car’s driver was cited for
driving while intoxicated. A social work consult clinical note provides, “Upon
arrival, Xanax bars from Mexico were found on Mom’s person. Mom was under the
influence of something and a full tox screen was ordered. Mom was screaming,
cursing[,] and attempting to pull all of the medical equipment out. CPS report
made.” Mother’s emergency room discharge summary states that her “tox [screen]
2
was positive for amphetamines, benzos, and opiates. She was noted to be very
drowsy and lethargic thought to be secondary to drug intoxication.” Mother testified
that she was not intoxicated at the time of the accident and denied possessing or
using Xanax. According to Mother’s medical records, she was admitted for
observation after being seen in the emergency room and discharged on April 20,
2019. J.B. was discharged to the Department on April 23.
On June 18, 2019, the Department was appointed J.B.’s temporary managing
conservator. The Department filed a family service plan, which the court approved
and incorporated into a status hearing order.1 Mother’s service plan required her to:
(1) take parenting classes; (2) maintain stable and appropriate housing and provide
the Department with a copy of her lease agreement; (3) maintain stable and legal
employment and provide the Department with a copy of her pay stubs; (4) not engage
in criminal activity; (5) maintain contact with and give the Department truthful
information and attend all meetings, court hearings, and visits with J.B.;
(6) participate in a drug and alcohol assessment and follow all recommendations
from the assessment, including that she complete an outpatient substance abuse
program; (7) submit to random drug testing; (8) undergo both a psychological
assessment and a psychiatric evaluation and follow the recommendations from each;
(9) maintain compliance with her medications; and (10) participate in individual
counseling.
According to the Department’s caseworker, Steven Mayol, Mother attended
court hearings and meetings for much of the pendency of this case. Mother testified
that she completed her parenting classes. She attended monthly visits with J.B.,
except from November 2019 to February 2020, during which time she was
1
Although Mother did not sign the service plan, she acknowledged during trial that she
received a copy.
3
incarcerated after being arrested for aggravated robbery with a deadly weapon. Most
of her visits were unremarkable and appropriate, except for one in April 2020. At
that visit, Department caseworker Ashley Edwards described Mother as erratic and
crying; Mother arrived to the visit 30 minutes late. During this visit, Mother
repeatedly asked J.B. if he was being abused in his foster home. Although J.B.
responded in the negative, Mother continued asking until J.B. nodded his head,
“yes.” At that point, Edwards stated that the visit became “completely out of
control” and Mother became “verbally aggressive” toward the foster father.
Mother confirmed that she suffered from depression and anxiety and was
prescribed medication for both, but she did not comply with her medication regimen.
Mother failed to maintain safe and stable housing or provide the Department with a
copy of any lease. At trial, Mother said she had a two-year lease on a home
appropriate for J.B. She stated that she provided a copy of her lease to her attorney
during trial, but it is undisputed that she did not provide a copy of any lease to the
Department, as required by her family service plan. Mother also failed to find or
maintain a job,2 and she did not complete her psychological evaluation or participate
in individual counseling.
Mother completed a drug and alcohol assessment and enrolled in a
recommended substance abuse outpatient program, but she was “unsuccessfully
discharged” from that program3 and later enrolled in another “intensive outpatient”
2
Mother testified that she was self-employed cleaning houses, but she acknowledged she
never sent any information to the Department to verify her employment. She also stated that she
was not currently working due to the COVID-19 pandemic.
3
Mother did not complete this program due to her arrest and incarceration for aggravated
robbery, described below. Mother did not engage in any drug abuse counseling while she was in
jail.
4
program. Mother confirmed that, as of the time of trial, she had not yet completed
the substance abuse program.
Pursuant to Mother’s family service plan, she agreed to provide random hair
and urine samples for drug testing; the Department would consider any “adulterated
samples or no-show as a POSITIVE test result.” In 2019, Mother submitted to seven
hair follicle tests as part of this random drug testing requirement. Only one of these
tests was negative; the remaining six tests were positive for substances including
cocaine, methamphetamine, amphetamine, and benzoylecgonine. Subsequently,
Mother refused to submit samples for random hair follicle tests ordered on April 16,
2020; May 6, 2020; May 26, 2020; June 3, 2020; and June 22, 2020. Mother
submitted to ten urine drug tests in 2019, all of which were negative except for an
October 20, 2019 test that was positive for ethyl glucuronide.4 In 2020, Mother’s
urine drug tests on March 19, 2020; March 21, 2020; April 17, 2020; and June 4,
2020 were negative. She refused to submit a urine sample on June 22, 2020.
Mother acknowledged that she tested positive for methamphetamines several
times during the pendency of this suit, but she did not want to discuss the frequency
of her methamphetamine use and stated she was currently enrolled in a drug recovery
program. However, Mother testified that she had relapsed with methamphetamine
use about two weeks before trial. She agreed that it was important for J.B. to have
a drug-free caregiver. According to Mother, her drug use began after the car accident
that resulted in J.B.’s hospitalization and removal. Mother stated that, if she had
possession of her son, she would not use drugs.
4
Ethyl glucuronide is a metabolite of ethanol formed in the body, usually from drinking
alcoholic beverages. See Ethyl glucuronide, Wikipedia, https://en.wikipedia.org/
wiki/Ethyl_glucuronide#cite_note-pmid19340678-1 (last visited Apr. 22, 2021).
5
The court also heard evidence that Mother was arrested several times while
this case was pending and she was under the family service plan. Mother was
arrested in June 2019 for misdemeanor theft. She was arrested for aggravated
robbery with a deadly weapon in November 2019, which resulted in her
incarceration until February 2020 on that charge. She was arrested in June 2020 for
possession of a methamphetamine. In January 2010, several years before J.B.’s
birth, Mother was convicted of aggravated robbery and sentenced to eight years’
incarceration. Mother also acknowledged older convictions for theft in 2004 and
burglary of a motor vehicle in 2008.
Department caseworker Mayol described J.B. as a friendly, playful, caring,
and intelligent child who enjoys playing outdoors. According to Mayol, J.B.’s foster
homes have met all of his physical and emotional needs. J.B. was in his fourth foster
home, which was not “ideal.” Mother testified that J.B. moved foster homes so
frequently because the foster families could not handle J.B.’s behavior. However,
Mother testified that J.B. never exhibited any concerning behaviors or “mood
disorder” when she visited with him.
J.B.’s guardian ad litem, Jenny Yang, testified that J.B. is doing very well in
his current foster placement. She did not believe that J.B. should be returned to
Mother’s care because she has not maintained sobriety and the consistent presence
necessary to properly parent J.B.
J.B.’s current foster family had agreed to adopt J.B. if his parents’ parental
rights were terminated. J.B.’s current foster mother testified that he was doing
“really well” in her home. According to her, J.B. was bonding with “everybody in
the home.” J.B. called his foster parents “mommy” and “daddy.” J.B.’s foster
mother described him as a very affectionate little boy who enjoyed company.
Additionally, she stated that her parents live less than a mile away and were
6
experienced former public education teachers and administrators. J.B. “instantly
took to them.” The foster mother explained that J.B. was enrolled in a pre-K
program that was to start shortly. She also testified that the foster family was aware
of various programs to assist them as an adoptive family, such as free school meals
through the school district and college tuition assistance for J.B. J.B.’s foster mother
described her hopes and dreams for J.B. as follows:
[J.B.] is a great kid. He’s very intelligent. He has a big heart, and I
think he’ll do really, really well in a supportive environment. So we
would just love to see him have a happy childhood, lots of love and
support throughout the years, help him find his passions and his dreams
and help him pursue those so that he can be a respectful, compassionate
adult when he grows up.
At the conclusion of the trial, the court found clear and convincing evidence
that: (1) Mother engaged in conduct or knowingly placed J.B. with persons who
engaged in conduct and endangered his physical or emotional well-being; and
(2) Mother did not comply with the provisions of the court-ordered service plan. See
Tex. Fam. Code § 161.001(b)(1)(E), (O). The court further found that termination
of Mother’s rights was in J.B.’s best interest and that the Department should be
appointed J.B.’s sole managing conservator. See id. § 161.001(b)(2). Based on these
findings, the court signed a final order terminating Mother’s parental rights to J.B.
Mother timely appealed.
Analysis
A. Standards of Review
In a proceeding to terminate the parent-child relationship under Texas Family
Code section 161.001, the petitioner must establish by clear and convincing evidence
one or more acts or omissions enumerated under subsection (1) of section 161.001(b)
and that termination is in the best interest of the child under subsection (2). Tex.
7
Fam. Code § 161.001; In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam); In
re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Involuntary termination of parental rights
is a serious matter implicating fundamental constitutional rights. Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985); 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. In re A.C., 560 S.W.3d 624, 629 (Tex. 2018); In
re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of terminating the parental relationship,
Texas requires clear and convincing evidence to support such an order. See Tex.
Fam. Code § 161.001; 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 § 101.007; In re J.F.C., 96 S.W.3d at
264. This heightened burden of proof results in a “correspondingly searching
standard of appellate review.” In re A.C., 560 S.W.3d at 630; see also In re C.M.C.,
273 S.W.3d 862, 873 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
In reviewing legal sufficiency of the evidence in a parental termination case,
we must consider all evidence in the light most favorable to the finding to determine
whether a reasonable fact finder could have formed a firm belief or conviction that
its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). We assume
that the fact finder resolved disputed facts in favor of its finding if a reasonable fact
finder could do so, and we disregard all evidence that a reasonable fact finder could
have disbelieved. Id.; In re G.M.G., 444 S.W.3d 46, 52 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). However, this does not mean that we must disregard all
evidence that does not support the finding. In re D.R.A., 374 S.W.3d at 531.
8
Because of the heightened standard, we also must be mindful of any undisputed
evidence contrary to the finding and consider that evidence in our analysis. Id.
In reviewing the factual sufficiency of the evidence under the clear-and-
convincing standard, we consider and weigh disputed evidence contrary to the
finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at 631;
In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed
evidence that a reasonable fact finder could not have credited in favor of the finding
is so significant that a fact finder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” In re J.O.A., 283 S.W.3d at
345. We give due deference to the fact finder’s findings, and we cannot substitute
our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006).
B. Predicate Grounds
1. Applicable law
In her first two issues, Mother argues the evidence is legally and factually
insufficient to support termination under the predicate grounds on which the court
relied, namely subsections 161.001(b)(1)(E) and (O). To affirm a termination
judgment on appeal, a court need uphold only one termination ground—in addition
to upholding a challenged best-interest finding—even if the trial court based the
termination on more than one ground. In re N.G., 577 S.W.3d at 232; In re L.M.,
572 S.W.3d 823, 832 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Further, due
to the significant collateral consequences of terminating parental rights under section
161.001(b)(1)(D) or (E),5 “[a]llowing section 161.001(b)(1)(D) or (E) findings to go
5
Section 161.001(b)(1)(M) provides that parental rights may be terminated if clear and
convincing evidence supports a finding that the parent “had his or her parent-child relationship
terminated with respect to another child based on a finding that the parent’s conduct was in
violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state.”
9
unreviewed on appeal when the parent has presented the issue to the court thus
violates the parent’s due process and due course of law rights.” In re N.G., 577
S.W.3d at 237. Thus, when, as here, a parent challenges predicate termination
grounds under subsection 161.001(b)(1)(E), we must address them and detail our
analysis. See id. We will address the trial court’s finding of endangerment under
subsection (E). If we conclude that Mother’s termination of parental rights is
supported under that subsection, then we need not address whether termination is
also supported under subsection (O). See id. at 232.
Termination of parental rights is warranted if the fact finder finds by clear and
convincing evidence, in addition to the best-interest finding, that the parent has
“engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child.” Tex.
Fam. Code § 161.001(b)(1)(E). “To endanger” means to expose a child to loss or
injury or to jeopardize a child’s emotional or physical health. See In re M.C., 917
S.W.2d 268, 269 (Tex. 1996). A finding of endangerment under subsection (E)
requires evidence that the endangerment was the result of the parent’s conduct,
including acts, omissions, or failures to act. In re S.R., 452 S.W.3d 351, 361 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied). Termination under subsection (E)
must be based on more than a single act or omission; the statute requires a voluntary,
deliberate, and conscious course of conduct by the parent. Id. A court properly may
consider actions and inactions occurring both before and after a child’s birth to
establish a course of conduct. In re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston
[14th Dist.] 2017, pet. denied).
Tex. Fam. Code § 161.001(b)(1)(M). Thus, when parental rights have been terminated for
endangerment under either section 161.001(b)(1)(D) or (E), that ground becomes a basis to
terminate that parent’s rights to other children.
10
Evidence of criminal conduct, convictions, imprisonment, and their effects on
a parent’s life and ability to parent may establish an endangering course of conduct.
In re S.R., 452 S.W.3d at 360-61; In re V.V., 349 S.W.3d 548, 554 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied). Routinely subjecting children to the
probability that they will be left alone because their parent is in jail endangers
children’s physical and emotional well-being. See In re L.M., 572 S.W.3d at 834 &
n.4. Imprisonment alone is not an endangering course of conduct but is a fact
properly considered on the endangerment issue. Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533-34 (Tex. 1987). As well, a parent’s conduct that subjects a
child to a life of uncertainty and instability endangers the child’s physical and
emotional well-being. In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston
[14th Dist.] 2018, no pet.); In re A.L.H., 515 S.W.3d at 92.
Drug abuse is merely one form of criminal conduct that may jeopardize a
child’s physical or emotional health and thus constitute endangering conduct. In re
M.J., No. 14-20-00449-CV, 2020 WL 7038526, at *6 (Tex. App.—Houston [14th
Dist.] Dec. 1, 2020, no pet.) (mem. op.). A parent’s drug abuse after a child is born
may be an endangering course of conduct under subsection (E) because it can
negatively impact the user’s ability to parent in multiple ways, not only by exposing
the child to the possibility that the parent may be imprisoned but also because drugs
can physically impair a mother’s or father’s capacity to parent. See Walker v. Tex.
Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied); see also In re J.J.W., No. 14-18-00985-CV, 2019 WL
1827591, at *6 (Tex. App.—Houston [14th Dist.] Apr. 25, 2019, pet. denied) (mem.
op.) (“Drug abuse and its effect on the ability to parent can present an endangering
course of conduct.”).
11
2. Application
Our record contains ample evidence of Mother’s continuing course of
narcotics use during the pendency of this case. She tested positive numerous times
for various illegal substances, particularly cocaine and methamphetamines. As well,
she refused several drug tests during 2020,6 and her service plan included a warning
that any no shows would be taken as positive drug tests. See In re E.R.W., 528
S.W.3d 251, 264 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (fact finder may
reasonably infer that parent’s failure to submit to drug tests indicates parent is
avoiding testing because parent was using drugs); In re J.M.T., 519 S.W.3d 258, 269
(Tex. App.—Houston [1st Dist.] 2017, pet. denied) (same); In re W.E.C., 110
S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (same).
Additionally, Mother acknowledged that she relapsed and used
methamphetamine only two weeks before trial. This court has held that a parent’s
decision to engage in illegal drug use during the pendency of a termination suit,
when the parent is at risk of losing the child, may support a finding to a clear and
convincing degree that the parent engaged in conduct that endangered the child’s
physical or emotional well-being. See In re A.M., 495 S.W.3d 573, 580 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied); In re A.H.A., No. 14-12-00022-CV, 2012 WL
1474414, at *7 (Tex. App.—Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.);
see also In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet.
denied).
Here, in addition to Mother’s course of narcotics use during the pendency of
the suit, the trial court heard evidence of Mother’s several arrests for offenses during
the pendency of the suit, one of which resulted in a four-month incarceration. A fact
6
The trial occurred in July and October 2020.
12
finder reasonably could find that this conduct subjected J.B. to a probability of being
left alone because Mother is in jail, also endangering the child’s physical and
emotional well-being. See, e.g., In re T.G.R.-M., 404 S.W.3d 7, 15 (Tex. App.—
Houston [1st Dist.] 2013, no pet.) (evidence of mother’s arrests after she knew her
parental rights were in jeopardy supported a finding of endangerment). The clear
and convincing evidence of Mother’s criminal history and jail time after J.B.’s birth
establishes an endangering course of conduct. See In re A.A.C., No. 14-19-00560-
CV, 2019 WL 6913327, at *7 (Tex. App.—Houston [14th Dist.] Dec. 19, 2019, no
pet.) (mem. op.).7
We thus conclude that the fact finder could have formed a firm belief or
conviction that its endangerment finding under subsection (E) was true.8 E.g., In re
A.M., 495 S.W.3d at 579-80; J.O.A., 283 S.W.3d at 344.
Considered in the light most favorable to the trial court’s finding, the evidence
is legally sufficient to support the trial court’s determination that termination of
Mother’s parental rights to J.B. was justified under Family Code section
7
Mother complains that the trial court erroneously admitted evidence of stale convictions
for aggravated robbery, theft, and burglary. Because we conclude the record is sufficient to support
the court’s endangerment finding notwithstanding this evidence, we need not address Mother’s
argument.
8
A majority of this court sitting en banc recently held that “a parent’s drug use alone,
without proof of any causal connection to endangering their children’s welfare,” is not enough to
justify terminating a parent-child relationship. In re L.C.L., 599 S.W.3d 79, 86 (Tex. App.—
Houston [14th Dist.] 2020, pet. filed) (en banc). In L.C.L., the court’s en banc majority noted the
absence of evidence of criminal charges related to the parent’s drug use or “proof of threat of
incarceration due to alleged drug use.” Id. at 84-85. Here, both exist; there is evidence that Mother
was arrested for possession of methamphetamine on June 15, 2020, during the pendency of this
suit. Additionally, although Mother denied being intoxicated on the evening of the car accident
that prompted J.B.’s removal from her care, her medical records indicate that she tested positive
for “amphetamines, benzos, and opiates” and that bars of Xanax were found on her person. This
evidence leads us to conclude that sufficient evidence supports the court’s finding under subsection
(E).
13
161.001(b)(1)(E). Further, in view of the entire record, we conclude the disputed
evidence is not so significant as to prevent the trial court from forming a firm belief
or conviction that termination was warranted under section 161.001(b)(1)(E).
Accordingly, we conclude the evidence is legally and factually sufficient to support
the subsection (E) finding.
Having concluded the evidence is legally and factually sufficient to support
the trial court’s finding under subsection (E), we need not review the sufficiency of
the evidence to support the subsection (O) finding. See In re A.V., 113 S.W.3d 355,
362 (Tex. 2003). We overrule Mother’s first and second issues.
C. Child’s Best Interest
In Mother’s third issue, she challenges the legal and factual sufficiency of the
evidence to support the trial court’s best-interest finding.
1. Applicable law
The best-interest inquiry is child-centered and focuses on the child’s well-
being, safety, and development. In re A.C., 560 S.W.3d at 631. The trier of fact
may consider several factors to determine the child’s best interest, including: (1) the
desires of the child; (2) the present and future physical and emotional needs of the
child; (3) the present and future emotional and physical danger to the child; (4) the
parental abilities of the persons seeking custody; (5) the programs available to assist
those persons seeking custody in promoting the best interest of the child; (6) the
plans for the child by the individuals or agency seeking custody; (7) the stability of
the home or proposed placement; (8) acts or omissions of the parent that may
indicate the existing parent-child relationship is not appropriate; and (9) any excuse
for the parents’ acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976); In re E.R.W., 528 S.W.3d at 266; see also Tex. Fam. Code § 263.307(b)
14
(listing factors to consider in evaluating parents’ willingness and ability to provide
the child with a safe environment).
Courts apply a strong presumption that the best interest of the child is served
by keeping the child with the child’s natural parents, and it is the Department’s
burden to rebut that presumption. In re D.R.A., 374 S.W.3d at 531. Prompt and
permanent placement in a safe environment also is presumed to be in the child’s best
interest. Tex. Fam. Code § 263.307(a). A finding in support of “best interest” does
not require proof of any unique set of factors, nor does it limit proof to any specific
factors. See Holley, 544 S.W.2d at 371-72.
We review the Holley factors in light of the evidence at trial. Applying them,
we observe that neither party presented testimony regarding J.B.’s desires.
However, J.B.’s foster mother testified that J.B. has bonded well with his foster
family, including his foster father, sister, and grandparents. See In re L.G.R., 498
S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (when
children are too young to express their desires, the fact finder may consider that the
children have bonded with the foster family, are well cared for by the foster family,
and have spent minimal time with a parent).
2. Application
Mother continued to use drugs during the pendency of the suit and was
arrested on three different criminal charges while J.B. was in foster care. The same
evidence, described above, that supports the trial court’s finding of endangerment
also supports a finding that Mother’s pattern of inappropriate behaviors during J.B.’s
life has jeopardized and would continue to jeopardize J.B.’s physical and emotional
well-being. See In re M.G.D., 108 S.W.3d 508, 511 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied); see also In re M.D., No. 14-20-00244-CV, 2020 WL
5626273, at *9 (Tex. App.—Houston [14th Dist.] Sept. 21, 2020, no pet.) (mem.
15
op.) (parent’s substance abuse supports a finding that termination is in child’s best
interest); In re E.R.W., 528 S.W.3d at 266 (fact finder can give “great weight” to
“significant factor” of drug-related conduct” in determining child’s best interest).
Although Mother claimed she had a stable home appropriate for J.B., the
Department’s caseworker testified that Mother had not shown a stable home or
income as required by her service plan. The trial court reasonably could have
concluded that Mother’s instability, including a lack of a stable home, continued
drug use, and criminal history, supported a conclusion that termination was in J.B.’s
best interest. See In re S.R., 452 S.W.3d 351, 368 (Tex. App.—Houston [14th Dist.]
2014, pet. denied).
A court may consider whether a parent demonstrated willingness to effect
positive environmental and personal changes within a reasonable amount of time.
See Tex. Fam. Code § 263.307(b)(11). Although Mother had complied with portions
of her family service plan, she did not establish that she: had a stable home; had
stable and legal income; refrained from using illegal drugs; refrained from engaging
in criminal activity; completed her psychological assessment or any psychological
counseling; or was compliant with her medical regimen for the treatment of her
ongoing psychological issues. From Mother’s failure to show a willingness to effect
positive environmental and personal changes, the trial court reasonably could have
inferred Mother’s parental abilities weighed in favor of finding termination was in
J.B.’s best interest.
Finally, J.B.’s current foster family has expressed a desire to adopt J.B. He
has bonded well with his foster family, and the family has provided a safe and stable
home for him. J.B.’s foster mother displayed a knowledge of and willingness to
engage in services available to help J.B. have a safe and stable future.
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Viewing the evidence in the light most favorable to the judgment for our legal-
sufficiency analysis and all of the evidence equally for our factual-sufficiency
analysis, we conclude that a reasonable fact finder could have formed a firm belief
or conviction that termination of Mother’s’s parental rights was in J.B.’s best
interest. See id. § 161.001(b)(2).
We overrule Mother’s third issue.
D. Conservatorship
In her fourth issue, Mother argues the evidence is legally and factually
insufficient to support the trial court’s finding that appointment of the Department
as sole managing conservator is in J.B.s best interest.
We review a trial court’s appointment of a non-parent as sole managing
conservator for abuse of discretion and reverse only if we determine the appointment
is arbitrary or unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). When,
as here, an appellant challenges the legal and factual sufficiency of the evidence in
a case where the proper standard is abuse of discretion, we engage in a two-pronged
analysis: (1) whether the trial court had sufficient information upon which to
exercise its discretion, and (2) whether the trial court erred in its application of
discretion. In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—Houston [1st Dist.] 2017,
no pet.).
Texas Family Code section 161.207, entitled “Appointment of Managing
Conservator on Termination,” provides: “If the court terminates the parent-child
relationship with respect to both parents or to the only living parent, the court shall
appoint a suitable, 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). The trial court’s appointment of the Department as
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sole managing conservator may be considered a consequence of termination. In re
I.L.G., 531 S.W.3d 346, 357 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
Having found the evidence sufficient to support the predicate ground and best-
interest finding, we conclude the trial court had sufficient information upon which
to exercise its discretion and did not abuse its discretion in appointing the
Department as J.B.’s sole managing conservator. See In re L.G.R., 498 S.W.3d at
207 (finding no abuse of discretion in conservatorship finding where the evidence
was sufficient to support termination of parental rights).
We overrule Mother’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourliot, and Hassan.
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