in the Interest of M.K.E. AKA M.K.E., AKA M.E. AKA M.E. v. Department of Family and Protective Services

Opinion issued June 23, 2022.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00001-CV
———————————
IN THE INTEREST OF M.K.E. AKA M.K.E., AKA M.E., AKA M.E., A
CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2020-02300J
MEMORANDUM OPINION
J.L.C.F. (“Mother”) appeals the trial court’s order terminating her parental
rights to her minor child M.K.E. aka M.K.E., aka M.E, aka M.E. (“Matthew”). In
her sole issue, Mother argues there is factually insufficient evidence supporting the
trial court’s finding that termination of her parental rights is in Matthew’s best
interest. We affirm the trial court’s decree of termination.
Background
On December 8, 2020, the Department of Family Protective Services
(“Department”) filed a petition seeking managing conservatorship over Matthew and
termination of Mother’s and G.E.’s (“Father”) parental rights to the child.1 In the
removal affidavit attached to the petition, Darius Pruitt (“Pruitt”), a Child Protective
Services (“CPS”) Investigator, averred that the Department had received a referral
for neglectful supervision of Matthew after Mother and Matthew tested positive for
amphetamines2 when Matthew was born in early December 2020.
Pruitt met with Mother and Father at the hospital the day Matthew was born.
When asked about the amphetamines found in her system, Mother explained she had
been taking pain medication. She admitted, however, that the medication had not
been prescribed to her and she had acquired the medication from someone she did
not know. Mother denied taking any other drugs. She also told Pruitt that she had
marijuana in her system when she gave birth to Matthew’s stepsister, Amy, in 2005
and that Mother’s aunt has custody of the girl.3 Mother stated that, other than the
pain medication, she had not used drugs since that time. Father told Pruitt he did not
1
To protect the identity of the minor child, we will refer to him by pseudonym and
we will refer to his biological parents as Mother and Father. See TEX. R. APP. P. 9.8.
2
Matthew’s case worker testified that Matthew and Mother tested positive for
methamphetamines when he was born.
3
For purposes of this opinion, we will refer to Matthew’s stepsisters by pseudonym.
2
live with Mother and he never saw her use drugs. He also acknowledged he had a
criminal history for traffic tickets, domestic violence, and drug possession.
Pruitt also spoke to nurse Sandy Kattner (“Kattner”) and social worker Vanesa
Villia (“Villia”) at the hospital. Kattner confirmed that Mother and Matthew tested
positive for amphetamines. She told Pruitt that although Mother had admitted to
taking painkillers during her pregnancy, she refused to take pain medications during
Matthew’s birth. Kattner stated that Mother appeared to be “high on something”
and kept falling asleep while she was at the hospital, including while she was giving
birth to Matthew. According to Kattner, Father fed Matthew a bottle because Mother
kept falling asleep. Villia, the social worker, told Pruitt that Matthew needed to stay
in the hospital for a few days where he could be monitored for any withdrawal
symptoms.
Pruitt stated that he contacted the two kinship placements Mother and Father
suggested. One relative was not a suitable placement because she had a recent
history with Adult Protective Services (“APS”) and the other proposed placement
was no longer willing to take care of Matthew. Pruitt also averred that in 2005,
Mother was referred to the Department for physical abuse of her daughter, Amy,
because Mother tested positive for cocaine, amphetamines, benzodiazepines, and
PCP when Amy was born. As a result of the referral, Amy and her older sister, Zoe,
were taken into the Department’s care. Mother’s parental rights to both girls were
3
terminated in 2006 after Mother signed an affidavit of voluntary relinquishment.
Amy was ultimately adopted, and Zoe’s maternal grandmother was named as her
permanent managing conservator.
Pruitt’s removal affidavit also includes Mother’s criminal history. In 2016,
Mother pleaded guilty to the state jail felony offense of possession of
methamphetamine, and she was sentenced to 6 months in TDCJ’s state jail division.
In 2000, Mother pleaded guilty to the misdemeanor offense of possession of
marijuana, and she was sentenced to 20 days in jail. In 2009, Mother was convicted
of sale of alcohol to a minor, for which she was sentenced to 15 days in county jail,
and failure to show identification, for which she was sentenced to 10 days in county
jail. In 1999, Mother was convicted of the misdemeanor offenses of theft and
unlawfully carrying a weapon and sentenced to 80 days in county jail.4
The trial court granted the Department’s emergency request for temporary
managing conservatorship of Matthew on December 8, 2020, the day the
Department filed its petition. On December 29, 2020, the trial court held an
adversary hearing which Mother did not attend in person. The court also issued a
temporary order continuing the Department’s appointment as Matthew’s temporary
managing conservator. The temporary order advised Mother that to regain
4
The removal affidavit also documented Father’s extensive criminal history,
including charges involving injury to a child, terroristic threat, assault of a family
member two times, assault causing bodily injury, and drug possession.
4
possession of Matthew, she had to comply with the actions set forth in the order.
The order warned Mother that failure to comply could result in termination of her
parental rights to Matthew. Among other things, the order required Mother to
provide the Department with her current address and phone number and the name
and contact information of any relative with whom the Department could place
Matthew while the suit was pending. Mother was also required to provide proof of
income within 30 days of the hearing.
On January 22, 2021, Mother’s family service plan was filed with the trial
court. Mother’s family service plan required her to, among other things: (1) provide
verifiable proof of income, (2) obtain and maintain suitable housing that was clean,
stable, and free from safety hazards, (3) actively participate in all permanency
conferences and court hearings, (4) successfully submit to random drug testing as
requested by the Department’s caseworker, (5) provide the Department with
verifiable proof of participation in a Narcotics Anonymous (“NA”) or Alcoholics
Anonymous (“AA”) 12-step program, (6) obtain a sponsor who has been sober for
more than five years, (7) attend, participate, and successfully complete a
drug/alcohol assessment, (8) submit to psychological and psychosocial evaluations,
and (9) attend, participate in, and successfully complete parenting classes. The
service plan stated that if Mother did not show up for a scheduled drug test, the
Department would consider her failure to appear as a positive test result.
5
Mother’s service plan states that she has support from her oldest daughter,
Zoe, and Mother’s two sisters with whom Mother lives from time to time. Mother,
who had been living in Austin, returned to Houston to help care for her elderly
mother who passed away a year earlier. Mother reported that she was currently
staying in her mother’s home, which she and one of her sisters had inherited when
their mother died. Mother also told the Department that she was unemployed and
would start looking for employment once she found out “where she was going to
live.” Mother claimed that she had been sober for ten years and did not relapse until
she took a pain pill for a toothache right before Matthew was born.
According to Mother’s family service plan, the Department was concerned
about Mother’s ability to care for Matthew because (1) Matthew had tested positive
for amphetamines at birth, (2) Mother had prior CPS cases involving substance
abuse, (3) Mother was currently homeless and did not have a stable home for
Matthew, (4) Mother had a history of substance abuse, and (5) Mother had a criminal
history.
After a status hearing on February 3, 2021, the trial court issued an order
approving Mother’s family service plan and incorporating the plan into the order.
The order stated that Mother understood her family service plan and had been
advised that unless she was willing and able to provide Matthew with a safe
environment, her parental rights could be restricted or terminated.
6
On May 5, 2021, the court held a permanency hearing which Mother did not
attend. After the hearing, the trial court issued an order finding that Mother had not
demonstrated adequate and appropriate compliance with her service plan.
In August 2021, the Department filed a permanency report with the court
stating that Matthew, who was then 8 months old, was happy, healthy, and hitting
all age-appropriate milestones while in his foster placement. With respect to a
possible kinship placement, the Department reported that a home study had been
requested for Zoe, Mother’s oldest daughter. The Department, however, had been
unable to conduct a home study for Mother’s sister, Chasta, because Mother and
Chasta had been living in the same house.
The Department reported that although Mother had attended visits with
Matthew, she was not participating in her court-ordered services. Specifically,
Mother had not reported for drug tests in February, March, April, May, June, and
July 2021, she was not making progress toward her substance abuse goals, and she
had been discharged from a substance abuse program in May 2021. Mother, who
was also unemployed, had not provided the Department with proof of housing as
required by her service plan.
On September 1, 2021, Mother and her sister, Chasta, attended the second
permanency hearing in this suit. After the hearing, the trial court issued an order
finding that Mother had not demonstrated adequate and appropriate compliance with
7
her service plan. The trial court also ordered the Department to conduct an expedited
home study on Chasta within 30 days.
Trial commenced on November 9, 2021. Mother, Father, Matthew’s foster
mother, and Matthew’s case worker, Mitzi Arsola (“Arsola”), testified at trial.
A. Arsola’s Testimony – Caseworker
Arsola testified that she had been Matthew’s caseworker since February 2021.
Matthew was eleven months old at the time of trial and had been living in a foster-
to-adopt placement since he was only a few days old. According to Arsola, Matthew
was doing well in his foster placement and hitting all his milestones. She reported
that Matthew was crawling, attempting to walk, pulling himself up, and becoming
very active. Arsola testified that Matthew’s foster parents play with him and read to
him during her monthly visits. According to Arsola, Matthew is “very bonded” with
his foster family. He smiles at them and enjoys being held by them. Arsola
confirmed that Matthew’s foster parents are willing to adopt him.
According to Arsola, the foster parents’ home is very appropriate and located
in a nice, “very diverse” community. Matthew has his own bedroom and a play area
with age-appropriate toys for him. The family has a family dog that shows no signs
of aggression. Arsola explained that Matthew loves to be held by his foster parents,
and he likes their comfort and enjoys their company. Matthew does not cry, and he
appears to be very fond of his foster mother. According to Arsola, Matthew reaches
8
for his foster mother, he wants to be around her, and he is always smiling when he
is with his foster parents.
Arsola testified that Matthew came into the Department’s care because he and
Mother tested positive for methamphetamines when Matthew was born in December
2020. According to Arsola, Mother has a concerning criminal history of drug
possession and history with the Department. In 2005, the Department received a
referral of physical abuse after Mother tested positive for cocaine,
methamphetamines, benzopienes, and PCP when her daughter Amy was born. Amy
and her older sister, Zoe, were taken into care and Mother’s parental rights to both
girls were later terminated. Amy was adopted and Zoe’s maternal grandmother was
appointed as her permanent managing conservator.
Arsola testified that Mother had not successfully completed her family service
plan. According to Arsola, Mother did not provide the Department with proof of
housing and employment, and she did not complete her psychosocial evaluation or
attend an approved parenting class. Mother also had not submitted to any random
drug tests, despite multiple requests to do so. Mother did not complete another drug
assessment after being discharged from a substance abuse program in May 2021 for
failure to comply with the program. Arsola testified she asked Mother to submit to
court-ordered drug testing and discussed the drug testing requirement and family
service plan with Mother the seven times they met during the pendency of the case.
9
Arsola further testified that Mother did not take a September 2021 court-ordered
drug test.
With respect to possible kinship placements, Arsola explained that Mother
and Father had suggested several placements, but none of them were suitable. Arsola
testified that Anita Williams (“Williams”), Mother’s sister, was not approved
because the Department’s initial investigation revealed that Williams had a recent
history with APS due to allegations that she physically abused and exploited an
elderly person. The Department also requested a home study for Jerry Fuqua, a
family friend.5 Although Fuqua’s home study was approved pending a backup
caretaker, she withdrew herself from consideration because Mother had asked her
several times to name Williams as the backup caretaker and Fuqua did not want
anything to do with Williams.
Mother proposed her daughter Zoe as a possible placement. Arsola testified
that Zoe, a recent college graduate, was in the process of moving to Dallas and she
was not willing to move forward with the process at that time. Zoe told the
Department she would contact when and if she decided to move forward with the
process of becoming a caretaker for Matthew. Zoe, however, never contacted the
Department after she relocated to Dallas.
5
Although the clerk’s record indicates that Ms. Fuqua’s given name is likely “Jenny,”
she is identified as “Jerry” in the reporter’s record.
10
Mother also proposed her sister Chasta as a possible placement. According
to Arsola, the Department did not request a home study for Chasta initially because
Chasta and Mother were living at the same address. The Department, however,
requested a home study for Chasta after the court ordered the Department to do so.
Arsola testified that the Department was not was able to complete a home study
because Chasta was difficult to contact and not very cooperative with the
Department’s multiple efforts to schedule a home study.
Arsola testified that it is in Matthew’s best interest to be placed in a safe,
stable, drug-free home. She testified that given Mother’s “continuous history with
substance abuse” and the lack of information she had with respect to Mother’s
current living situation, she did not believe Mother would be able to provide
Matthew with the home environment he needed. Arsola opined that it was in
Matthew’s best interest to be adopted by his foster parents. Arsola explained that
the Department wanted permanency for Matthew and “so we want him to be able to
be adopted to achieve that permanency so he can grow up in a drug free stable
environment.” Arsola asked the court to terminate Mother’s parental rights to
Matthew on several grounds, including her failure to complete her court-ordered
family service plan. See TEX. FAM. CODE § 161.001(b)(1)(O) (allowing trial court
to order termination of parent-child relationship if court finds by clear and
11
convincing evidence that parent failed to comply with court-ordered family service
plan).6
On cross-examination, Arsola agreed that Williams disputed the allegations
against her in the APS case. Arsola testified that while Mother gave her a parenting
certificate, the program was not acceptable to the Department. She explained that
the Department requires a six- to eight-hour program that addresses the needs of a
child and the certificate Mother presented was for a “coping and divorce program.”
Arsola also testified that the night prior to trial, she received some attendance sheets
from Mother showing she had attended AA and NA meetings. Arsola acknowledged
that Mother attended her two-hour biweekly visits with Matthew, but she noted that
Matthew does not appear to know who Mother is because he cries “almost
6
Arsola also asked that Mother’s parental rights to Matthew be terminated under
Family Code Sections 161.001(b)(1)(D), (E), (P), and (R). See TEX. FAM. CODE
§ 161.001(b)(1)(D) (allowing termination of parent-child relationship if court finds
by clear and convincing evidence that parent knowingly placed or knowingly
allowed child to remain in conditions or surroundings which endangered child’s
physical or emotional well-being); id. at § 161.001(b)(1)(E) (allowing termination
if court finds by clear and convincing evidence that parent engaged in conduct or
knowingly placed child with persons who engaged in conduct which endangered
child’s physical or emotional well-being); id. at § 161.001(b)(1)(P) (allowing
termination if court finds by clear and convincing evidence that parent used
controlled substance “in a manner that endangered the health or safety of the child”
and “failed to complete a court-ordered substance abuse treatment program” or
continued to abuse controlled substance after completing such program); id. at §
161.001(b)(1)(R) (allowing termination if court finds by clear and convincing
evidence that parent was “the cause of the child being born addicted to alcohol or a
controlled substance, other than a controlled substance legally obtained by
prescription”).
12
throughout the whole visit.” She testified Mother soothes Matthew appropriately
and brings appropriate toys for Matthew to her visits.
B. Foster Mother’s Testimony
Matthew’s foster mother (“Foster Mother”) testified that Matthew came to
live with her and her husband on December 8, 2020. She testified that although
Matthew had a slight shudder and would shake for a few seconds multiple times a
day, the shudder diminished over time and stopped when he was two weeks old.
Matthew’s pediatrician thought the shuttering was caused by Mother’s drug use, but
the doctor did not have any concerns about Matthew going forward. Foster Mother
is a teacher, and her husband an IT professional. Although they do not have any
other children, Foster Mother testified they have lots of family in the area, including
their immediate family.
Foster Mother testified Matthew attends the preschool at her and her
husband’s church four days a week and that he loves to play guitar and piano. Foster
Mother stated she intends for Matthew to graduate from high school and attend a
four-year university like she and her husband did. Foster Mother confirmed she and
her husband have the financial resources to meet Matthew’s needs now and in the
future. She further confirmed that she and her husband were absolutely willing to
adopt Matthew: “I love him. I completely with my whole heart love this child.” She
13
acknowledged she did not have contact with Matthew’s siblings but if she could get
the contact information, she would be happy to establish contact.
C. Father’s Testimony
Relevant to Mother’s appeal, Father testified he had known Mother for four
or five years. Although they had been in a relationship for a few years, they were
not in one at the time of trial. They were, however, still in contact. When asked
when he and Mother last used drugs together, Father testified he had no idea. And
when asked what drug they last used together, Father stated he and Mother never
used drugs together. He stated that in the last five years, he only used alcohol.
D. Mother’s Testimony
Mother testified last. She testified she believed she had completed all of the
services she was asked to complete in her family service plan. Mother stated that
she is employed as a babysitter and although she does not have any “pay stubs,” she
has “notes” that she gave to the caseworker the day prior to trial. She also provided
the address of her current residence. Mother admitted she had not completed a
psychosocial evaluation and claimed she had one scheduled the following week. She
testified that she provided the caseworker with a parenting certificate and the
parenting class discussed the needs of a child. Mother did not have the Department’s
list of approved programs, but she believed that the parenting class she attended was
approved because “it said it was a court approved, that it was a class for parenting.”
14
When asked about her compliance with the family service plan’s drug testing
requirements, Mother responded that Arsola only contacted her regarding visits with
Matthew and she never contacted Mother about taking a drug test. Mother explained
that she did not appear for any drug tests because she was not aware of them and
was never given an address for the testing location. Mother later testified she
believed she showed up for the drugs tests she knew about and understood she was
required to attend and that any failure to complete drug testing on her part was
because she did not have the information and was not provided notice. When asked
specifically about the February 2021 drug test she missed, Mother could not recall
why she failed to test. With respect to the court-ordered test in September 2021,
Mother explained that no one contacted her about a September test, and she believed
that she “wasn’t supposed to do it.”
Mother was also asked about the substance abuse program from which she
was discharged in May 2021. She testified that she attended every day, she never
missed a class, and she did not understand why she was discharged. She suggested
she might have been discharged from the program because her journal entries were
insufficient. Mother stated that the day before trial, she gave Arsola sign-in sheets
from the NA and AA meetings she had attended. Mother also testified she attended
the meetings once or twice a week and that she had completed more than the 90
hours she was required to attend. Mother testified she has been clean since she left
15
the hospital on December 6, 2020. She stated methamphetamines were the only
drugs she used, and she did not spend money on drugs.
With respect to possible kinship placements, Mother testified she had been
asking the court since December to place Matthew with a family member until her
service plan was completed. Mother claimed she received a letter from the
Department in August 2021 in which it apologized for not having the family
reunification done the way it was supposed to be completed by the Department’s
policy. She stated that her sister Chasta had contacted the Department about a home
study, but the home study had to be rescheduled because Chasta’s son was not home
at the time. Mother testified that Chasta told her that “she’s never had to reschedule.”
When asked if Chasta had been trying to get in touch with the Department, Mother
stated, “Yes. She’s the one that wanted a home study.”
On cross-examination, Mother was asked about the 2005 case that resulted in
the termination of her parental rights for her daughters, Amy and Zoe. Mother
testified that her rights were terminated in 2006 after she executed an irrevocable
affidavit of relinquishment. Although she denied that her rights to her daughters
were terminated because of drug use, Mother acknowledged that the 2005 case was
initiated because of her drug use.
Mother acknowledged that she was involved with the Department again later
because she and her youngest child, Matthew, tested positive for drugs when
16
Matthew was born. Mother admitted she had not appeared for all court-ordered and
Department-requested drug tests and had no evidence supporting her claim she had
been sober for almost a year. Mother acknowledged that the best way to demonstrate
her sobriety was through drug testing. Although she denied meeting with Arsola
every month, Mother admitted she and Arsola had spoken about her visits and they
went over the family service plan. Mother testified that she attended all court
hearings she was available to attend, and she did not attend the first hearing because
she was not given the correct time.
On December 8, 2021, the trial court signed a decree naming the Department
as Matthew’s sole managing conservator and terminating Mother’s parental rights
to Matthew pursuant to Texas Family Code Sections 161.001(b)(1)(O) and (P).7 See
TEX. FAM. CODE § 161.001(b)(1)(O) (allowing trial court to order termination of
parent-child relationship if court finds by clear and convincing evidence that parent
failed to comply with family service plan); id. at § 161.001(b)(1)(P) (allowing trial
court to order termination of parent-child relationship if court finds by clear and
convincing evidence that parent used controlled substance “in a manner that
endangered the health or safety of the child” and “failed to complete a court-ordered
7
The trial court also terminated Father’s parental rights to Matthew, but unlike
Mother, Father is not appealing the termination decree.
17
substance abuse treatment program” or continued to abuse controlled substance after
completing such program). This appeal followed.
Standard of Review
A parent’s rights to the “companionship, care, custody, and management” of
his or her child is a constitutional interest “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); see In re M.S., 115
S.W.3d 534, 547 (Tex. 2003). The United States Supreme Court has emphasized
that “the interest of [a] parent[] in the care, custody, and control of [her]
children . . . is perhaps the oldest of the fundamental liberty interests recognized by
th[e] Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). Likewise, the Texas
Supreme Court has concluded that “[t]his natural parental right” is “essential,” “a
basic civil right of man,” and “far more precious than property rights.” Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985) (internal quotations omitted). Consequently,
we strictly scrutinize termination proceedings and strictly construe the involuntary
termination statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985).
In a termination case filed under Texas Family Code Section 161.001, the
Department must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination,
and (2) termination is in the best interest of the child. TEX. FAM. CODE § 161.001(b).
18
Clear and convincing evidence is “the measure or degree of proof that will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” Id. § 101.007; In re J.F.C., 96 S.W.3d 256,
264 (Tex. 2002). Only one predicate finding under Section 161.001(b)(1) is
necessary to support a judgment of termination when there is also a finding that
termination is in the child’s best interest. In re A.V., 113 S.W.3d 355, 3612 (Tex.
2003).
When conducting a factual sufficiency review in a termination case, we must
consider the entire record. In re Commitment of Stoddard, 619 S.W.3d 665, 674
(Tex. 2020); In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We assume that the
factfinder resolved disputed evidence in favor of its finding if a reasonable factfinder
could do so, but we cannot disregard disputed evidence that a reasonable factfinder
could not have credited in favor of the finding. See In re Commitment of Stoddard,
619 S.W.3d at 674. Rather, the court must determine whether, in light of the entire
record, that evidence “is so significant that a factfinder could not reasonably have
formed a firm belief or conviction” that the finding was true. Id. (quoting In re
J.F.C., 96 S.W.3d at 266).
Best Interest of Child
In her sole issue, Mother argues there is factually insufficient evidence
supporting the trial court’s finding that termination of her parental rights was in
19
Matthew’s best interest. See TEX. FAM. CODE § 161.001(b)(2). Mother concedes
there is legally and factually sufficient evidence supporting the trial court’s finding
that she did not complete her family service plan and legally sufficient evidence that
termination is in Matthew’s best interest.8
Mother, who acknowledges that “it is clearly in [Matthew’s] best interest for
him to remain” with his foster parents, does not argue that Matthew should have
been returned to her care. Rather, Mother argues that there is not factually sufficient
evidence that terminating her parental rights is in Matthew’s best interest because
permanency can also be “achieved through [managing] conservatorship without
adoption” given that one of Matthew’s family members may be able care for him.
She also argues that termination is not warranted given her “willingness to parent”
because she “visited her child while in CPA care, her visits were appropriate, and
she soothed the child when he cried.” Mother acknowledges that “placement with
family is secondary to the issue of termination of [her] parental rights,” and she
8
Mother does not address the sufficiency of the evidence with respect to the trial
court’s finding that she committed the predicate act set forth in Texas Family Code
Section 161.001(b)(1)(P). TEX. FAM. CODE §161.001(b)(1)(P) (allowing trial court
to order termination of parent-child relationship if court finds by clear and
convincing evidence that parent used controlled substance “in a manner that
endangered the health or safety of the child” and “failed to complete a court-ordered
substance abuse treatment program” or continued to abuse controlled substance
after completing such program); see generally In re A.V., 113 S.W.3d 355, 3612
(Tex. 2003) (holding only one predicate finding under section 161.001(b)(1) is
necessary to support judgment of termination when there is also finding that
termination is in child’s best interest).
20
argues the Department’s plan to have Matthew adopted by his foster parents, as
opposed to a family member, is an important component of the best-interest analysis
because “sometimes issues of termination and conservatorship overlap.”
A. Applicable Law
The purpose of the State’s intervention in the parent-child relationship is to
protect the best interests of the children, not to punish parents for their conduct. In
re A.V., 113 S.W.3d at 361. There is a strong presumption that the best interest of a
child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). But there is also a presumption that the permanent placement of a
child in a safe environment is in the child’s best interest. TEX. FAM. CODE
§ 263.307(a); see also In re B.J.C., 495 S.W.3d 29, 39 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (noting that child’s need for permanence through establishment
of stable, permanent home is paramount consideration in best-interest
determination).
To determine whether parental termination is in a child’s best interest, courts
may consider the following non-exclusive factors: (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
21
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 which may indicate the existing
parent-child relationship is not appropriate; and (9) any excuse for the parent’s acts
or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). We may also
consider the statutory factors set forth in Texas Family Code Section 263.307,
including: (1) the child’s age and physical and mental vulnerabilities; (2) whether
there is a history of abusive or assaultive conduct by the child’s family or others who
have access to the child’s home; (3) the willingness and ability of the child’s family
to seek out, accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision; (4) the willingness and ability
of the child’s family to effect positive environmental and personal changes within a
reasonable period of time; (5) whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and
nutritional care, a safe physical home environment, and an understanding of the
child’s needs and capabilities; and (6) whether an adequate social support system
consisting of an extended family and friends is available to the child. TEX. FAM.
CODE § 263.307(b).
This list of factors is not exhaustive, and evidence is not required on every
factor to support a finding that termination of parental rights is in the child’s best
22
interest. In re D.R.A., 374 S.W.3d at 533. Courts may consider circumstantial
evidence, subjective factors, and the totality of the evidence as well direct evidence
when conducting a best interest analysis. See In re E.D., 419 S.W.3d 615, 620 (Tex.
App.—San Antonio 2013, pet. denied). Evidence supporting termination under one
of the predicate grounds listed in Section 161.001(b)(1) may also be considered in
support of a finding that termination is in the best interest of the child. See In re
C.H., 89 S.W.3d at 28 (holding same evidence may be probative of both section
161.001(b)(1) grounds and best interest). A parent’s past conduct is probative of his
future conduct when evaluating the child’s best interest. See In re O.N.H., 401
S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.).
B. Analysis
Multiple factors support the trial court’s finding that termination of Mother’s
parental rights was in Matthew’s best interest, including her failure to maintain a
safe and stable home during the pendency of the case, her prior drug use coupled
with her failure to submit to drug testing, and her undisputed failure to comply with
her family service plan. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort
Worth 2007, no pet.) (“A parent’s drug use, inability to provide a stable home, and
failure to comply with a family service plan support a finding that termination is in
the best interest of the child.”).
23
The child’s need for a permanent home has been “recognized as the paramount
consideration in a best interest determination.” In re B.J.C., 495 S.W.3d at 39(noting that child’s need for permanence through establishment of stable, permanent
home is paramount consideration in best-interest determination) (citing In re K.C.,
219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.)). The record reflects that
Mother was homeless when the case began, and the Department expressed concerns
about Mother’s ability to provide Matthew with a safe, stable, and drug-free home
from the time Matthew was taken into care. Mother admitted she did not have a
stable residence when she first spoke to the Department and that she would move in
with one of her sisters from time to time. Although Mother provided her current
address when she testified at trial, Arsola also testified that she did not know where
Mother was living and thus could not evaluate whether Mother’s home was stable
and safe. The record also reflects Mother failed to provide the Department with
verifiable proof of her employment during the pendency of the case, such as pay
stubs, as required by her service plan. Mother’s failure to maintain regular
employment and suitable housing that was clean, stable, and free from safety hazards
during the pendency of the case, not only violated the terms of the family service
plan but also supports the trial court’s best-interest finding. See Holley, 544 S.W.2d
at 372 (recognizing stability of home and ability to provide for child’s current and
future physical and emotional needs as best-interest factors); see also In re C.H., 89
24
S.W.3d at 28 (stating evidence supporting the trial court’s finding that mother failed
to complete her family service plan also support finding that termination is in child’s
best interest).
The evidence also reflects that Matthew’s foster parents have been able to
meet all of his physical and emotional needs. Foster Mother confirmed that she and
her husband have the financial resources to continue to meet Matthew’s needs in the
future. According to Arsola, the foster parents’ home is in a nice and “very diverse”
community. Matthew has his own bedroom, a play area with age-appropriate toys,
and he attends preschool at the family’s church. Matthew, who has lived with his
foster parents all of his life, is healthy and meeting all his developmental milestones.
See Holley, 544 S.W.2d at 372 (recognizing child’s present and future physical and
emotional needs, parental abilities of persons seeking custody, and stability of home
or proposed placement as best-interest factors). Matthew’s foster parents are
college-educated professionals and they want Matthew to attain the same level of
education. See id. (recognizing plans for child by individuals or agency seeking
custody as best-interest factor).
“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
them, and have spent minimal time with [their] parent.” In re J.D., 436 S.W.3d 105,
118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also In re N.J.H., 575
25
S.W.3d 822, 834 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (stating
evidence young child had bonded with foster family supported best-interest finding);
In re L.M.N., No. 01-18-00413-CV, 2018 WL 5831672, at *20 (Tex. App.—Houston
[1st Dist.] Nov. 8, 2018, pet. denied) (mem. op.) (“A child’s bonding with her foster
family implies that the child’s desires would be fulfilled by adoption by the foster
family.”). Matthew has spent at most four hours a month with Mother and according
to Arsola, Matthew spent most of that time crying, and he did not appear to know
who Mother was. Aside from the fact that Mother regularly visited with Matthew,
brought him age-appropriate toys, and tried to soothe him when he cried, there is no
evidence that Matthew was bonded with Mother or wanted to be with her. Unlike
with Mother, there is substantial evidence that Matthew is well bonded with his
foster parents who love him and want to adopt him. According to Arsola, Matthew
smiles at his foster parents and he enjoys being with them and held by them.
Matthew also shows a particular affinity for Foster Mother. According to Arsola,
Matthew reaches for her, he wants to be around her, and he is always smiling when
he is with his foster parents. This evidence supports the trial court’s finding that
termination of Mother’s parental rights was in Matthew’s best interest. See In re
N.J.H., 575 S.W.3d at 834; see also In re J.D., 436 S.W.3d at 118.
Matthew’s young age alone also weighs in favor of the trial court’s finding
that termination of Mother’s parental rights was in his best interest. See In re J.M.T.,
26
519 S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (noting
that young age of child—fourteen months at time of trial—weighed in favor of trial
court’s finding that termination was in child’s best interest); see also In re A.L.B.,
No. 01-17-00547-CV, 2017 WL 6519969 *5 (Tex. App.—Houston [1st Dist.] 2017,
pet. denied) (mem. op.) (stating children’s young ages—five and six years old—
rendered them “vulnerable if left in the custody of a parent unable or unwilling to
protect them or to attend to their needs”).
The record also reflects that Mother tested positive for cocaine,
amphetamines, benzodiazepines, and PCP when her daughter Amy was born in
2005, which resulted in her parental rights being terminated as to Amy and her older
sister, Zoe. Mother also used drugs when she was pregnant with Matthew in 2020,
thus risking losing her rights to him as well. When a parent is under a court order to
drug test and fails to submit to such testing, a trier of fact may conclude that the
parent refused to do so because of continuing drug use. In re J.M.T., 519 S.W.3d
258, 269 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (refusal to give hair
sample permitted court to infer father refused testing because it would be positive);
In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(holding fact finder could infer that parent’s failure to submit to court-ordered drug
testing indicated parent was avoiding testing because they were using narcotics).
Mother tested positive for illegal drugs in December 2020, and she failed to attend
27
any of the drug screenings scheduled during the pendency of the underlying action.
Based on this evidence, the trier of fact could reasonably have concluded that Mother
continued to use illegal drugs. See In re J.M.T., 519 S.W.3d at 269; see also In re
C.A.B., 289 S.W.3d at 885. Although Mother claimed she had been sober since the
case began, and only used pain medication right before Matthew’s birth to treat a
toothache, the trial court could have reasonably disregarded her claims of sobriety,
especially given the fact that Mother never took any required drug tests during the
pendency of the case and she was discharged from her substance abuse program for
non-compliance. See In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (stating fact
finder determines issues of credibility); see also In re D.M.M., No. 14-16-00664-
CV, 2017 WL 61847, at *5 (Tex. App.—Houston [14th Dist.] Jan. 5, 2017, pet.
denied) (mem. op.) (“Continued illegal drug use [by the parent] . . . 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.”).
The record also reflects that Mother was convicted of four prior offenses, two
of which were for drug possession, and she spent time in jail for all four offenses.
See In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied) (stating criminal activity that exposes parent to incarceration is conduct that
endangers child’s physical and emotional well-being); see also In re R.W., 129
S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (“As a general rule,
28
conduct that subjects a child to a life of uncertainty and instability endangers the
physical and emotional well-being of [the] child.”).
Mother argues that terminating her parental rights to Matthew is not in his
best interest because permanency can also be “achieved through [managing]
conservatorship without adoption” given that one of Matthew’s family members
may be able care for him. Although Mother asked the Department to place Matthew
with a family member while the case was pending, and she provided them with
names of possible kinship and fictive kin placements, the record reflects that the
Department considered these placement options and found that one of the proposed
placements was inappropriate, and the others either withdrew their names from
consideration, or failed to follow up with the Department’s attempts to schedule a
home study. On appeal, Mother does not identify any other family members who
are available to care for Matthew, much less one that would be an appropriate
placement for the child. Furthermore, as the Department points out, none of
Matthew’s family members testified at trial and there is no evidence demonstrating
the appropriateness or availability of any family member to care for Matthew. On
the other hand, there is ample evidence that Matthew’s foster parents want to adopt
him, and they have demonstrated the ability and willingness to meet all of his needs,
and provide him with a safe, stable, drug-free environment. See Holley, 544 S.W.2d
29at 372 (recognizing plans for child by individuals or agency seeking custody as best-
interest factor).
Mother also argues that termination of her parental rights to Matthew is not
necessary because she is willing to parent Matthew, as demonstrated by the fact that
she regularly visited Matthew while he was in the Department’s care, the visits were
appropriate, she stayed in contact with Matthew’s caseworker Arsola, and she
attended the court hearings of which she was aware. Mother’s willingness to parent
Matthew, however, is only one factor in the best-interest analysis and it does not
outweigh the considerable evidence establishing termination of her parental rights
was in Matthew’s best interest.
Viewing the entire record, we conclude that the disputed evidence is not so
significant as to prevent the trial court from forming a firm belief or conviction that
that termination of Mother’s parental rights was in Matthew’s best interest. In re
J.F.C., 96 S.W.3d at 266; see also In re Commitment of Stoddard, 619 S.W.3d at
674.
We overrule Mother’s sole issue.
Conclusion
We affirm the trial court’s decree of termination.
30
Veronica Rivas-Molloy
Justice
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
31