in the Interest of C.G., III AKA C.G., a Child

Affirmed and Memorandum Opinion filed October 2, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00412-CV
IN THE INTEREST OF C.G., III AKA C.G., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2017-02029J
MEMORANDUM OPINION
Appellant D.M.W. (Mother) appeals the trial court’s final decree terminating
her parental rights and appointing the Department of Family and Protective Services
as sole managing conservator of her child, C.G. (Chris).1 The trial court terminated
Mother’s rights on the predicate grounds of endangerment, a previous termination,
failure to comply with a family service plan, and use of a controlled substance in a
manner that endangered the health or safety of the child. See Tex. Fam. Code Ann.
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We use pseudonyms to refer to appellant, the child, and other family members. See Tex.
Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8.
§ 161.001(b)(1)(D), (E), (M), (O) & (P) (West Supp. 2017). The trial court further
found that termination of Mother’s rights was in the child’s best interest, and named
the Department managing conservator of the child. Chris’s father’s (Father) parental
rights were terminated on the grounds of endangerment and failure to follow a family
service plan. Father has not appealed the termination of his parental rights.
In a single issue Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination is in the best interest of
the child. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Proceedings
1. The Department’s Investigation
Chris was removed from Mother when he was two days old due to allegations
that both his parents were using illegal drugs. Chris was originally placed in a
Parental Child Safety Placement and moved to his father’s home when he was
approximately six months old.
When Chris was born, hospital staff received an anonymous tip that Mother
had a history of mental illness and had two other children removed from her care.
Mother had been diagnosed with bipolar disorder and was taking medication
prescribed for bipolar disorder when she became pregnant. Mother discontinued
medication because she did not feel the symptoms of the disease.
Two of Mother’s older children were removed from her care because the
father of those children was sexually abusing them. Chris had a different father.
At Mother’s request, the Department placed Chris with Father in January 2017
when Chris was approximately six months old. The Department investigator
explained to Father that Mother was not allowed to spend the night with the child
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and that a visitation schedule should be arranged to accommodate both parents. The
investigator observed that Mother and Father’s relationship was volatile. Mother
accused Father of physically abusing Chris, but the investigator visited the child and
did not see evidence of physical abuse. Mother accused Father of abusing drugs.
Father voluntarily submitted to drug testing. Father’s urine test was negative, but a
hair test was positive for cocaine and hydrocodone.
After Father tested positive for drugs, the Department attempted to find
another placement for the child. Father denied using drugs, but admitted receiving
“medicine” from an individual because he has back pain. The investigator explained
that taking prescription pain killers without a prescription was considered an illegal
use of drugs. Father provided the investigator with his mother-in-law’s name and
phone number as a possible placement for Chris. The mother-in-law declined the
placement.
The Department sought temporary managing conservatorship of Chris due to
both parents’ positive drug tests and their inability to provide an appropriate
caregiver for placement.
2. Mother’s Department History
In 2012, the Department received a referral of neglectful supervision, which
was “ruled out.” At the time Mother had been diagnosed with bipolar disorder and
schizophrenia. She gave birth to a daughter on July 24, 2012. The baby was born
prematurely and weighed just over three pounds at birth. Mother tested positive for
marijuana during that pregnancy, and tested negative approximately one month
before birth. The baby’s three-year-old sibling was in Department foster care at the
time of the birth.
In 2014, the Department received a referral of physical abuse, which was
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disposed as “unable to determine.” The two-year-old child was seen with broken
blood vessels in her eye. Law enforcement officers did not see the injury when they
went to the home.
On August 18, 2015, Mother’s parental rights to the child born in 2012 and
her older sibling born in 2013 were terminated on endangerment grounds.
3. Mother’s Criminal History
Mother had a conviction for misdemeanor assault in 2000, unauthorized use
of a motor vehicle in 2001, and another misdemeanor assault in 2004. Mother was
charged with a Class C traffic offense in 2015. The removal affidavit referred to the
arresting agency for disposition.
4. Family Service Plan
The trial court signed temporary orders requiring both parents to comply with
family service plans. Mother’s plan required her to:
 participate and complete a drug and alcohol assessment and
follow all recommendations;
 participate in and successfully complete a psychological
evaluation and follow all recommendations;
 maintain a positive support system that is safe, crime-free, drug
and alcohol free, and will not inflict abuse or neglect on her
children;
 refrain from engaging in any criminal activities;
 provide her current caseworker with any and all sources of
income for herself and her children;
 maintain stable and safe housing for a minimum of six months
consecutively;
 participate in, giving truthful information, all meetings, court
hearings, and other planning sessions regarding her child;
 provide the Department worker with a release of information for
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all service providers, medical personnel, and officers of the court
to obtain records and progress information regarding her case;
 maintain contact with her current Department caseworker at least
once a month by phone, email, or in person to discuss progress
made and any other issues of concern in completing
recommended tasks;
 participate in random drug or alcohol testing upon request by the
Department or a provider with the understanding that any refusal
of drug or alcohol testing will be considered as testing positive;
and
 attend, actively participate in, and successfully complete
parenting classes.
B. Trial Testimony
At the beginning of trial, the Department introduced documentary evidence in
the form of returns of service, a prior decree of termination in which Mother’s rights
were terminated to two other children on endangerment grounds, adjudication of
Father’s paternity, the family service plans, both parents’ drug test results, and
criminal records of both parents. Mother did not object to any of the Department’s
exhibits. Father objected to a misdemeanor conviction from 2001 as too remote. The
trial court admitted Father’s prior criminal conviction over his objection.
The prior termination decree reflected that in August 2015, Mother’s parental
rights were terminated to two children, who were two and three years old at the time.
Mother’s parental rights were terminated on the grounds of endangerment,
constructive abandonment, failure to follow a family service plan, and use of a
controlled substance in a manner that endangered the health or safety of the children.
Mother had positive drug tests for marijuana in December 2016, February
2017, March 2017, April 2017, and June 2017. In September 2017, Mother tested
positive for benzoylecgonine, cocaine, and marijuana. In December 2017 and
February 2018, Mother tested positive for benzoylecgonine and cocaine.
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Mother had criminal convictions for assault in May 2000, unauthorized use of
a motor vehicle in March 2001, and assault with bodily injury in April 2004.
The caseworker testified that Chris had been living with the foster family for
approximately ten months. The foster parent with whom Chris is living is willing to
adopt him. Chris was thriving in the foster home. Chris came into the care of the
Department because Mother was using drugs, which left her children in danger
because no one was caring for them. The caseworker noted that Mother’s rights to
previous children had been terminated on endangerment grounds. Since Chris was
removed, Mother became pregnant with twins. The caseworker testified that Mother
tested positive for drugs throughout the case including when she was pregnant with
twins, which were also removed at birth. Both parents’ visitation rights were
suspended due to positive drug test results.
With regard to the family service plan, Mother completed parenting classes
and a substance abuse assessment. Mother appeared at all court hearings. Mother
discontinued her prescribed medication while pregnant, but continued to take illegal
drugs.
The foster mother has made plans for Chris’s future education and he is
thriving in her care. The foster home is safe and stable, and it would be in Chris’s
best interest for him to remain in the foster parent’s care.
At the conclusion of trial, the trial court terminated Mother’s parental rights
on the grounds of endangerment, previous termination, failure to follow the family
service plan, and use of a controlled substance in a manner that endangered the health
or safety of the child.
II. ANALYSIS
In a single issue Mother challenges the legal and factual sufficiency of the
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evidence to support the trial court’s finding that termination is in the best interest of
the child.
A. Standards of Review
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 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.”).
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 Ann. § 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 Ann. § 101.007 (West 2014);
In re J.F.C., 96 S.W.3d at 264.
The heightened burden of proof in termination cases results in a heightened
standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). We review the legal sufficiency of the evidence by considering
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, 345 (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
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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 compel us to disregard all evidence that does
not support the finding. In re D.R.A., 374 S.W.3d at 531. 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 burden, we consider and weigh all of the evidence, including disputed or
conflicting evidence. 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.” Id.
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).
In a proceeding to terminate the parent-child relationship brought under
section 161.001 of the Texas Family Code, 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. Fam. Code § 161.001; In re J.L., 163 S.W.3d 79, 84
(Tex. 2005).
A. Predicate Termination Grounds
Mother concedes the evidence is legally and factually sufficient to support the
trial court’s finding that her parental rights were terminated to other children on the
grounds of endangerment supporting the trial court’s finding of the predicate ground
under section 161.001(b)(1)(M) of the Texas Family Code. Mother does not
challenge the trial court’s findings on the predicate grounds.
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C. Best Interest of the Child
In her sole issue Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination is in the best interest of
the child.
The factors the trier of fact may use to determine the best interest of the child
include: (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 251, 266 (Tex. App.—Houston [14th
Dist.] 2017, no pet.); see also Tex. Fam. Code Ann. § 263.307(b) (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 her natural parents, and the burden is on the Department
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 Ann. § 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.
In analyzing whether termination of Mother’s parental rights was in Chris’s
best interest, we focus on the evidence regarding the nature of the relationship
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between Chris and Mother.
1. Desires of the child
At the time of trial Chris was 22 months old. When a child is too young to
express his desires, the fact finder may consider that the child has bonded with the
foster parent, is well cared for by the foster parent, and has 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). Mother argues that she bonded with Chris during her visitation while
the termination case was pending.
The record reflects that Chris is in a foster-to-adopt home. The caseworker
testified that the foster mother has made plans for Chris’s future education and he is
thriving in her care. The foster home is safe and stable, and it would be in Chris’s
best interest for him to remain in the foster parent’s care. Mother’s visitations were
limited as they were suspended due to her continued drug use.
2. Present and future physical and emotional needs of the child
Regarding this factor, we note that the need for permanence is a paramount
consideration for the child’s present and future physical and emotional needs. See In
re D.R.A., 374 S.W.3d at 533. The goal of establishing a stable, permanent home for
a child is a compelling government interest. Id.
While some children may have extraordinary physical and emotional needs
requiring extra care, all children have physical and emotional needs that must be met
on a daily basis. The record reflects that Chris does not have extraordinary needs.
With regard to Chris’s emotional and physical needs, evidence shows that Mother
has not provided for his past or present physical and emotional needs.
Mother argues that, “it remains speculative” whether the current foster mother
can meet Chris’s future physical and emotional needs. The fact that the child is
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currently doing well is evidence that the foster mother can meet the future needs.
Despite Mother’s argument, the record reflects Mother did not have stable
employment and continued to use illegal drugs even after her child was removed. A
fact finder may infer from a parent’s past inability to meet the child’s physical and
emotional needs an inability or unwillingness to meet the child’s needs in the future.
See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no
pet.).
3. Present and future physical and emotional danger to the child
With regard to this factor we note that Mother continued inappropriate
behaviors while the termination case was pending, including her activities involving
illegal drugs, subjecting her child to an uncertain future that endangered her child’s
safety and stability. See In re J.O.A., 283 S.W.3d at 345. Evidence of a parent’s
unstable lifestyle can also support the conclusion that termination is in the child’s
best interest. In re A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *10 (Tex.
App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.). “Continued illegal
drug use after a child’s removal is conduct that jeopardizes parental rights and may
be considered as establishing an endangering course of conduct, and that termination
is in the best interest of the child.” See In re B.Z.S., No. 14-16-00825-CV, 2017 WL
536671, at *5 (Tex. App.—Houston [14th Dist.] Feb. 9, 2017, pet. denied) (mem.
op.).
4. Parental abilities of those seeking custody, stability of the home or
proposed placement, and plans for the child by the individuals or
agency seeking custody
These factors compare the Department’s plans and proposed placement of the
child with the plans and home of the parent seeking to avoid termination of the
parent-child relationship. See In re D.R.A., 374 S.W.3d at 535.
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Mother continued to use drugs and live in an unstable environment after Chris
was removed from her care. Mother concedes that the foster parent has been certified
through the Department and presumably has “adequate parenting skills.” Mother
argues, however, that she has completed her parenting classes and has gained further
insight into the ability to parent.
The fact finder may consider a parent’s parenting skills in a best-interest
analysis. See In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no
pet.). The record reflects, however, that Mother continued to use drugs while this
case was pending including while pregnant with twins who were removed from her
care at birth. Although a reasonable fact finder could credit Mother’s completion of
parenting classes and decide it justified the risk of preserving the parent-child
relationship, we cannot say the trial court acted unreasonably in finding the child’s
best interest lay elsewhere. See In re M.G.D., 108 S.W.3d 508, 514 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied). It is not our role to reweigh the evidence on
appeal, and we may not substitute our judgment of the child’s best interest for the
considered judgment of the fact finder.
5. Programs available to assist in promoting the child’s best interest
In determining the best interest of the child in proceedings for termination of
parental rights, the trial court may properly consider that the parent did not comply
with the court-ordered service plan for reunification with the child. See In re E.C.R.,
402 S.W.3d 239, 249 (Tex. 2013). The caseworker testified that Mother failed to
complete her family service plan. Although Mother contends she completed some
services, the evidence established that she did not fully complete the plan. Mother
offered no excuse for failure to complete the plan.
Mother’s failure to complete the court-ordered service plan demonstrates that
she is unwilling to take advantage of the services offered to her by the Department
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and casts doubt on her parenting abilities. See In re I.L.G., 531 S.W.3d 346, 355–56
(Tex. App.—Houston [14th Dist.] 2017, pet. denied); Tex. Fam. Code
§ 263.307(b)(10), (11).
Applying the applicable Holley factors to the evidence, we conclude that
legally and factually sufficient evidence supports the trial court’s finding that
termination of Mother’s parental rights is in the child’s best interest. Based on the
evidence presented, the trial court reasonably could have formed a firm belief or
conviction that terminating Mother’s rights was in the child’s best interest so that he
could promptly achieve permanency through adoption. See In re T.G.R.-M., 404
S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet). Accordingly, we
overrule Mother’s challenge to the legal and factual sufficiency of the evidence
supporting the trial court’s best-interest finding.
III. CONCLUSION
Having concluded that the evidence is legally and factually sufficient to
support the finding that termination of Mother’s parental rights is in the best interest
of Chris, we affirm the judgment terminating Mother’s parental rights and naming
the Department managing conservator.
/s/ Marc W. Brown
Justice
Panel consists of Justices Christopher, Jamison, and Brown.
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