in the Interest of E.A.D., a Child

Affirmed and Memorandum Opinion filed July 11, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00025-CV
IN THE INTEREST OF E.A.D., A CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2020-02136J
MEMORANDUM OPINION
Mother appeals the trial court’s final order terminating her parental rights as
to her eleven-year-old daughter, E.A.D. (“Elsea”). Though Mother agrees that she
did not meet the requirements of the court-ordered service plan, she still seeks to
reverse the trial court’s judgment in her challenge to the sufficiency of the
evidence in support of the trial court’s best interest findings. To avoid future
collateral consequences in connection with the trial court’s endangerment findings,
Mother also challenges the sufficiency of the evidence to support those predicate
grounds. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
When Elsea was 9 years old, in June of 2020, Department of Family and
Protective Services (the “Department”) received an intake that Elsea, Mother, and
Elsea’s Grandmother were living in a home in “deplorable” condition where it was
uncertain if the home had working utilities. The investigator learned Mother was
“never” home and left the child with Grandmother who had Alzheimer’s. At that
time, Mother agreed to have supervised visits and have a family friend, Tasmin,
become the primary protective caregiver.
A few months later, on November 7, 2020, an officer with the Houston
Police Department received a dispatch from a family member about Mother. The
family member called stating when he returned home from vacation he found
Mother in his home among narcotics.
When the HPD officer arrived at the home, he saw “multiple … illicit
narcotics.” At trial he explained that he saw some drugs in what looked like a
makeup case and also some in “plain view” on the mantel in the living room. He
stated they believed the drugs to be either ecstasy or methamphetamine.
When the officer first arrived, Mother and Elsea were present. However,
promptly stated Mother she was going to the store and never returned, leaving
Elsea behind. At trial, she admitted that she left and Elsea stayed in the home.
Elsea confirmed to the officer that she had been living in that home with Mother.
The officer stated he had reason to believe the illegal substances found belonged to
Mother.
Not long thereafter, on November 9, 2020, the Department filed an original
petition seeking termination of Mother’s parental rights and the court signed an
order appointing the Department as the child’s emergency temporary managing
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conservator.
On December 7, 2020, an adversary hearing was held and the court’s order
noted that Mother appeared in person with her attorney. The court signed an order
at the conclusion of that hearing finding there was a danger to the physical health
or safety of the child caused by a person entitled to the child’s possession and it
was contrary to the welfare of the child to remain in the home. The order also
recited there was an urgent need that required the child’s immediate removal and
notwithstanding reasonable efforts to eliminate the need for removal there was a
substantial risk of a continuing danger if the child was returned home. The order
continued the Department’s appointment as the child’s temporary managing
conservator.
On January 15, 2021, a service plan was filed with the court for Mother. The
plan was signed by the Department’s worker and supervisor but was not signed by
Mother. The plan stated the Department’s hope was that Elsea could be placed in a
safe and stable environment with proper medical care and free from drug use. In
that connection, under “CHILD… NEEDS” the plan noted Elsea had a heart
condition requiring her to take medication and wear a pacemaker. The plan
expressed concern about Mother’s drug use, ability to provide suitable housing,
ability to provide basic care for the child and inability to care for Elsea’s medical
condition. The plan added there was concern about the mom’s coping and mental
health needs due to her extensive drug use.
The court issued a service plan which required Mother to: (1) maintain safe
and stable housing for no less than six months and provide the Department with a
copy of the lease; (2) maintain contact with current caseworker, attend all court
hearings, visitations and planning sessions, and update the caseworker on address,
phone number, work schedule and other changes that may impact the caseworker’s
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ability to maintain contact and schedule appointments; (3) maintain employment
for no less than six months and provide the Department with pay stub proof
monthly; (4) participate in a drug assessment and follow its recommendations; (5)
participate in random urine and hair follicle testing upon instruction by
caseworker; (6) attend and provide proof of attendance of Narcotics Anonymous
group; (7) participate in psychosocial assessment and follow its recommendations;
(8) refrain from criminal activity.
The case was called to trial on November 9, 2021. Undisputed evidence
showed that Mother substantially failed to comply with the plan, as she did not
complete any of her services outside of appearing for court hearings and
(eventually) drug tests.
The Department caseworker assigned to the case at the time of trial, Tamara
Smith, testified Elsea was in a foster home at that time and doing really well. She
commented that Elsea showed her she was making A’s and B’s on her report card,
and was interested in crafts, jewelry making and face painting. She stated that
Elsea was bonded to her caregiver, called her by her first name and mom and
referred to her foster siblings as sister and brother.
Tamara testified that there was a recent intake in that home where the
caregiver was called because Elsea was under the covers and she was not sure if
the foster brother was touching Elsea inappropriately. Tamara added she spoke to
Elsea who said it was nothing, he did not touch her and it was blown out of
proportion. After investigation, the case was ruled out, but Tamara explained that
there was a safety plan and the caregiver went to additional training for parenting
children victims of sexual abuse. Tamara indicated that additional training was
necessary because the foster siblings also were victims of sexual abuse.
Tamara noted that Elsea just started some therapies they hope will help
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Elsea, including music and art therapy. She also has therapy at the Child
Advocacy Center to address sexual abuse allegations. The caregiver indicated her
behavior improved tremendously. Tamara stated the child is bonded to her
caregiver and calls her mom. As of the time of trial, Elsea’s current foster
caregiver remained unsure if she would adopt Elsea. Tamara stated that she
submitted Elsea for a legal broadcast and their plan was for unrelated adoption.
Tamara acknowledged she had not been personally successful with hits for a legal
risk broadcast involving a 10-year-old with serious past trauma.
Tamara stated during the entire time the Department was involved Mother
had one drug test and after reviewing its results, she had concerns about her
sobriety.
Mother admitted to using narcotics, but refused to admit the narcotics found
in the home by the officer were hers. She testified that she had relapsed during the
case. She acknowledged throughout this case while her child was in the
Department’s custody, she continued to use. She added: “Who wouldn’t? My
God.” Mother blurted out the unsolicited comment, “The allegations of how I’m
prostituting my daughter out, I would never do that. It’s – I feel like I’ve been
portrayed as a monster and I’m not. I’m not a monster.”
A Child Advocate representative assigned to the case testified that she had
met with Elsea and that that she was doing well, was adjusted and her behavior
issues improved notably through the progress of the case. She testified that Elsea
did not express a sincere desire to speak with her mom again after visitations were
cancelled “due to allegations of sexual abuse of her daughter while in her care.”
At the conclusion of trial, the court signed an order terminating Mother’s
parental rights pursuant to Texas Family Code, Sections 161.001(b)(1)(D), (E), (O)
and (2). This appeal followed.
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II. ISSUES AND ANALYSIS
A court may terminate the parent-child relationship if the court finds by
clear and convincing evidence that (1) the parent has engaged in at least one
statutory predicate act and (2) termination is in the best interest of the child. See In
re N.G., 577 S.W.3d 230 (Tex. 2019); In re L.C.L., 599 S.W.3d 79, 83 (Tex.
App.—Houston [14th Dist.] 2020) (en banc), pet denied, 629 S.W.3d 909 (Tex.
2021); see also Tex. Fam. Code § 161.001(b).
Mother raises three issues. In her first two issues, Mother aims to avoid
future collateral consequences the trial court’s judgment could have on her parental
rights to other children by challenging the legal and factual sufficiency of the
evidence to support the trial court’s finding of the two endangerment-predicate
grounds for termination. In her third issue, Mother seeks to retain her parental
rights to Elsea by challenging exclusively the factual sufficiency of the evidence to
support the trial court’s finding that termination of her parental rights is in the best
interest of the child. Tex. Fam. Code Ann. § 161.001(b)(2).
A. Standard of Review
Termination of the parent-child relationship is a drastic remedy and is of
such weight and gravity that due process requires the state to justify termination by
clear and convincing evidence. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002); see also
In re L.G.R., 498 S.W.3d 195, 201 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied). 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. Tex. Fam. Code § 101.007. This
heightened burden of proof results in a heightened standard of review when
evaluating the sufficiency of the evidence. In re L.G.R., 498 S.W.3d at 202.
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Under a legal sufficiency review, we look at all the evidence in the light
most favorable to the finding to determine whether a reasonable factfinder could
have formed a firm belief or conviction that the finding was true. In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so. Id. We disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
not credible, but we do not disregard undisputed facts. See In re Commitment of
Stoddard, 619 S.W.3d 665, 674 (Tex. 2020).
Evidence is factually insufficient if, in light of the entire record, “the
disputed evidence that a reasonable factfinder could not have credited in favor of
the finding is so significant that a factfinder could not reasonably have formed a
firm belief or conviction.” In re J.F.C., 96 S.W.3d at 266.
B. Is the trial court’s order terminating Mother’s parental rights supported
by legally and factually sufficient evidence to support termination of parental
rights under 161.001(b)(1)(D) or (E)?
Only one predicate finding under section 161.001(b)(1) is necessary to
support a judgment of termination when there also is a finding that termination is
in the child’s best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re
L.E.R., No. 14-21-00590-CV, 2022 WL 1088592, at *8 (Tex. App.—Houston
[14th Dist.] Apr. 12, 2022, no pet. h.). Although Mother has conceded the trial
court’s predicate ground under Subsection (O), we must address the trial court’s
endangerment findings under section 161.001(b)(1)(D) or (E) because she has
challenged the sufficiency of the evidence to support those findings which may
have collateral consequences to Mother at a later time. In re N.G., 577 S.W.3d 230,
235 (Tex. 2019) (per curiam); Interest of P.W., 579 S.W.3d 713, 720 (Tex. App.—
Houston [14th Dist.] 2019, no pet.).
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Termination of parental rights is warranted if the factfinder finds by clear
and convincing evidence, in addition to the best-interest finding, that the parent has
“knowingly placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the child” or
“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)(D), (E). “To endanger” means to expose a child to loss
or injury or to jeopardize a child’s emotional or physical health. In re M.C., 917
S.W.2d 268, 269 (Tex. 1996).
1. Endangerment by Environment.
By making a finding under subsection D, the court concluded that Mother
knowingly placed or knowingly allowed Elsea to remain in conditions or
surroundings which endangered Elsea’s physical or emotional well-being. See Tex.
Fam. Code § 161.001(b)(1)(D). Inappropriate, abusive, or unlawful conduct by a
parent or other persons who live in the home can create an environment that
endangers the physical or emotional wellbeing of a child. In re L.E.R., 2022 WL
1088592, at *9. A single act or omission may be sufficient to support termination
under subsection D. Id. In evaluating endangerment under subsection D, the court
must consider the child’s environment before the Department obtained custody. Id.Subsection D is not a basis for termination of parental rights if the parent was
unaware of the endangering environment. In re V.A., 598 S.W.3d 317, 329 (Tex.
App.—Houston [14th Dist.] 2020, pet. denied). There must be clear and
convincing evidence of endangerment as well as of the parent’s awareness of the
endangering environment. Id. Although the parent need not have certain
knowledge that an actual injury is occurring, the parent must at least be aware of
the potential for danger to the child in such an environment and must have
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disregarded that risk. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied).
The evidence relevant environmental endangerment under subsection D
illustrated Mother’s neglect or reckless disregard of Elsea’s particular needs as a
nine year old who’s life depends on a pacemaker and the regular administration of
cardiac medication. Though mother testified that she was aware of Elsea’s medical
condition and testified that she had taken her to all her checkups and made sure
that she had medicine, she provided no explanation for how Elsea’s needs were
provided for in her extensive absence. Mother did not address how Elsea’s special
medical needs were addressed in conjunction with evidence that Mother was rarely
home with Elsea and left her in the care of Grandmother with Alzheimer’s.
If Mother possessed facts to disprove the alarms that would alert a
reasonable person of the risks these circumstances exhibited, she did not present
them to the caseworker at the time or present them at trial. Namely, to ameliorate
concerns of her absence, Mother presented no evidence she possessed means of
observing Elsea remotely at the house, or that she established any emergency plan
in her absence. Even assuming Grandmother (in light of her condition) did not
present additional harm to Elsea, there was no explanation as to the degree of
Grandmother’s Alzheimer’s and whether she could be relied upon to care for Elsea
in any manner. With respect to the second occurrence, Mother failed to provide
any testimony that, prior to fleeing from law enforcement, Mother informed the
police of Elsea’s condition or made any other arrangements.
Despite Mother’s denial of use or possession of the narcotics at the time of
removal, the evidence of Mother’s neglect was significant: In the first incident,
Elsea was found home without anyone responsible for caring for her special needs;
in the second incident, Mother and Elsea were found an apartment where narcotics
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appeared in plain view. These facts, taken with testimony connecting Mother to
those illicit narcotics at the time of the Department’s second referral establish the
reasonable conclusion that Mother was living a life that she knew increased the
probability of her incarceration. Subjecting children to the probability that they
will be left alone because their parent is in jail endangers children’s physical and
emotional wellbeing. See In re L.M., 572 S.W.3d 823, 834 & n.4 (Tex. App.—
Houston [14th Dist.] 2019, no pet.). A factfinder reasonably could find that this
conduct subjected Elsea to a probability of being left alone or without anyone
capable of tending to Elsea’s medical needs. See In re S.R., 452 S.W.3d at 360-61.
This evidence of Mother’s actions, including neglecting Elsea and her
special medical condition, exposing Elsea to illegal substances and the possibility
of being left alone, would support a finding that Mother knowingly placed or
knowingly allowed Elsea to remain in conditions or surroundings which
endangered her physical or emotional wellbeing. 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 was
justified under section 161.001(b)(1)(D). 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)(D). Accordingly, we conclude the evidence is legally and
factually sufficient to support the subsection (D) finding.
Appellant’s first issue is therefore overruled.
2. Endangerment by Conduct.
By making the subsection (E) finding, the judge determined that Mother had
engaged in conduct or knowingly placed Elsea with persons who engaged in
conduct that endangered Elsea’s physical or emotional well-being. Tex. Fam. Code
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Ann. § 161.001(b)(1)(E). A finding of endangerment under subsection (E) requires
evidence that the endangerment resulted from the parent’s conduct, including acts,
omissions, or failures to act. In re S.R., 452 S.W.3d at 361. Unlike subsection (D),
termination of the parent-child relationship 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).
Much of the evidence discussed as relevant to subsection (D)—neglect (of
the child’s special needs) and drug use—is also relevant to our analysis of whether
Mother engaged in conduct that endangered the physical or emotional wellbeing of
Children under subsection E. See, e.g., Interest of J.D.G., 570 S.W.3d 839, 852
(Tex. App.—Houston [1st Dist.] 2018, pet. denied)(noting that failure to provide
appropriate medical care for a child may constitute endangering conduct under
Subsection (E) even if the parent did not cause the need for medical treatment); In
re J.O.A., 283 S.W.3d at 345 (explaining that a parent’s drug use and its effect on
his or her parenting may qualify as an endangering course of conduct); In re
A.A.C., No. 14-19-00560-CV, 2019 WL 6913327, at *6 (Tex. App.—Houston
[14th Dist.] Dec. 19, 2019, no pet.) (mem. op.) (explaining that evidence of
criminal conduct, convictions, imprisonment, and their effects on a parent’s life
and ability to parent, and routinely subjecting children to the probability that they
will be left without their parent endangers children’s physical and emotional
wellbeing).
These same facts established Mother engaged in a course of conduct
endangering to her child for a finding under Subsection E. Moreover, there were
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additional facts concerning Mother’s illegal drug conduct that further established
this finding.
Beginning early in the case, Mother refused to submit to numerous tests
requested by the Department after that became part of the court ordered family
service plan. In re E.W., No. 14-19-00666-CV, 2020 WL 742327 (Tex. App. –
Houston [14th Dist.] 2020, pet. denied) (a parent’s refusal to submit to drug testing
may be treated by the court as if the parent tested positive for drugs).
Mother did not submit to a court ordered drug test until almost nine months
after the child was removed. The lab confirmed the samples collected from
Mother’s urine at that time were positive for methamphetamines and
amphetamines. The lab report also confirmed her hair samples were positive for
those drugs as well as marijuana. Subsequently, Mother again refused further drug
tests; on those facts the trier of fact was entitled to infer that Mother did not test
because she continued to use drugs. In re E.W., No. 14-19-00666-CV, 2020 WL
742327 (Tex. App. – Houston [14th Dist.] 2020, pet. denied). Continued illegal
drug use after a child's removal jeopardizes parental rights and may be considered
as establishing an endangering course of conduct. Cervantes–Peterson v. Tex.
Dep't of Family & Protective Servs., 221 S.W.3d 244, 253–54 (Tex. App.–Houston
[1st Dist.] 2006, no pet.) (en banc). There was no disputed fact of significance to
weigh against this proof that supported the fact finder’s firm belief or conviction
that Mother would have known her conduct jeopardized reunification.
At trial, Mother admitted she used marijuana more than methamphetamine
while Elsea was in CPS custody. She qualified the statement, making clear the
abuse was voluntary and deliberate: “Who wouldn’t? My God.” See In re V.L.F.,
No. 14-18-00588-CV, 2018 WL 6614168 *10 (Tex. App. – Houston [14th Dist.]
2018, no pet.) (“Illegal drug use creates the possibility that the parent will be
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impaired or imprisoned and thus incapable of parenting … Drug use and the
imprisonments relating to it harm the physical and emotional well-being of a
child.”); In re L.M.R., No. 14-17-00597-CV, 2018 WL 285121 *6 (Tex. App. –
Houston [14th Dist.] 2018, pet. denied) (mem. op.) (“[c]ontinued illegal drug use
after a child’s removal jeopardies parental rights and may demonstrate an
endangering course of conduct.”). Evidence of this kind of deliberate and
voluntary drug use combined with other endangering conduct noted is
distinguishable from an endangerment finding based merely on failed drug tests.
Interest of L.C.L., 599 S.W.3d 79, 84 (Tex. App.—Houston [14th Dist.] 2020, pet.
denied) (en banc)(the sole basis for termination was that the mother “tested
positive for drugs both initially and throughout the proceedings.”)
This evidence, considered altogether in addition to the evidence supporting
the endangerment finding under subsection D, would support a finding that Mother
had a history of drug use, neglect, and unstable living conditions that endangered
the children and would continue to engage in such behavior. We conclude that
under these circumstances, the factfinder could have formed a firm belief or
conviction that its endangerment finding under subsection (E) was true. E.g., In re
J.B., 2021 WL 1683942, at *6; In re 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
was justified under section 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.
We therefore overrule appellant’s second issue.
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C. Is the trial court’s order terminating Mother’s parental rights supported
by factually sufficient evidence to support the trial court’s finding that
termination is the best interest of child?
There is a strong presumption that the best interest of the child is served by
keeping the child with their natural parents. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (per curiam) (citing Tex. Fam. Code Ann. § 153.131(b)); In re D.R.A., 374
S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). However,
prompt and permanent placement of the child in a safe environment is also
presumed to be in the children’s best interest. In re S.R., 452 S.W.3d at 366 (citing
Tex. Fam. Code Ann. § 263.307(a)). Proof of acts or omissions under section
161.001(b)(1) is probative of the issue of the children’s best interest. See id. The
considerations that the factfinder may use to determine the best interest of the
children, known as the Holley factors, include:
(1) the desires of the child;
(2) the present and future physical and emotional needs of the child;
(3) the present and future physical and emotional danger to the child;
(4) the parental abilities of the person seeking custody;
(5) the programs available to assist the person seeking custody in
promoting the best interest of the children;
(6) the plans for the child by the individuals or agency seeking
custody;
(7) the stability of the home or proposed placement;
(8) acts or omissions of the parent that may indicate the existing
parent-child relationship is not appropriate; and
(9) any excuse for the parent’s acts or omissions.
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (interpreting former
Tex. Fam. Code § 15.02 (since amended)); see also Tex. Fam. Code Ann. §
263.307(b) (listing factors to be considered in evaluating “whether the child’s
parents are willing and able to provide the child with a safe environment”).
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Section 263.307 factors relevant to our evaluation in this case include: the
evidence concerning the subject child’s age and physical and mental health
vulnerabilities, the history of substance abuse, evidence regarding the parent’s
willingness to seek counseling services, and cooperate under the agency’s close
supervision; the evidence related to the parent’s willingness and ability to effect
positive environmental and personal changes within a reasonable period of time
and evidence concerning whether the parent demonstrates adequate parenting
skills, including providing minimally adequate health care, supervision, a safe
physical home environment and understanding of her child’s needs and
capabilities. Tex. Fam. Code § 263.307(b)(1), (8), (10), (11) and (12). A best-
interest finding does not require proof of any unique set of factors or limit proof to
any specific factors. See Holley, 544 S.W.2d at 371–72.
The child’s age, vulnerabilities and special needs
Elsea was just 9 years old when the referrals came in before her removal and
a little over 10 years old at trial in November of 2021. A trier of fact could
conclude from the proof of Elsea’s age that she requires a caregiver who can
provide the nurture and care necessary for a child of that age.
Elsea also has special physical issues that make her vulnerable without
proper attention, because she has a heart condition, a pacemaker and requires close
monitoring. She also has hearing loss in one ear and takes medication for her heart
condition.
Elsea further has some specific learning and behavioral needs. She qualifies
for special education services and requires accommodations. It was also noted that
a disclosure of sexual abuse was generated fairly early in this case in April of 2021
when Elsea had a forensic interview. The details of the sexual abuse disclosure
were not expressly stated at trial. However, the Department documented that the
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mother’s visits were cancelled as of April 2020 “due to allegations of sexual abuse
of her daughter while in her care.” Additionally, at trial Mother interjected the
statement: “The allegations of how I’m prostituting my daughter, I would never do
that. It’s – I feel like I’ve been portrayed as a monster and I’m not.”
Elsea was diagnosed with unspecified psychosexual disorder, oppositional
defiant disorder, adjustment disorder with mixed anxiety and depressed mood,
child sexual abuse suspected, confirmed neglect and attention deficit hyperactivity
disorder. The Department documented that Elsea was receiving individual therapy
during this case. Elsea was provided art therapy, music therapy and therapy at the
Child Advocate Center to address the sexual abuse allegations. The Child
Advocate Report also noted play therapy to be beneficial due to the disclosures.
All of this evidence indicated Elsea was particularly vulnerable due to her special
needs and, as such, required special attention and care.
As a result of Elsea’s young age and these special needs, the factfinder was
free to take into account that she required a caregiver able and willing to provide
for a young child with special needs.
The child’s emotional and physical needs now and in the future
A fact finder may infer from a parent’s past inability to meet the child’s
physical and emotional needs that the parent is unable or unwilling 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.) Evidence of a parent's unstable lifestyle can
support a factfinder's conclusion that termination of parental rights is in the child's
best interest. In re S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no
pet.). Lack of stability, including a stable home, supports a finding that the parent
is unable to provide for a child's emotional and physical needs. See In re G.M.G.,
444 S.W.3d 46, 59–60 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see
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also Doyle v. Tex. Dep't of Protective & Regulatory Servs., 16 S.W.3d 390, 398
(Tex. App.—El Paso 2000, pet. denied) (parent's failure to provide stable home
and provide for child's needs may contribute to finding that termination of parental
rights is in child's best interest). Evidence already discussed in support of the
predicate findings, however, shows Mother is unable or unwilling to accommodate
Elsea’s special needs on a regular basis. Proof under Subsection D established
Mother had a pattern of leaving her child in unsafe situations. The proof under
Subsections E also showed she was unwilling or unable to do what was necessary
to provide for her child, because she engaged in illegal drug use, unstable living
situations and did not do anything to address her issues to secure prompt
reunification under a court ordered plan.
Mother claimed she was starting to address her drug issue about a month
before trial. In deciding a parent’s willingness to provide a safe home, we consider
whether the parent effects personal changes within a reasonable time. See Tex.
Fam. Code 263.307(b)(11). Elsea had already been in the Department’s care for
over nine months when Mother finally submitted to an assessment for her drug use.
Mother indicated she was referred for inpatient rehab but never explained why she
had not started earlier. The court could reasonably conclude that was too late to
demonstrate Mother was sincere in her willingness to provide a safe home for
Elsea. A reasonable factfinder could conclude Mother was not willing to do what
was necessary to address her issues for her child’s welfare.
Mother failed to maintain a stable home during this case; she testified she
was staying with a friend at the time of trial, and though she claimed she was
working she never provided proof of income. See In re C.A.J., 122 S.W.3d 888,
894 (Tex. App.—Fort Worth 2003, no pet.) (“Without stability, income, or a home,
[a parent] is unable to provide for the child's emotional and physical needs.”).
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In light of these considerations, we conclude evidence implicating the
second factor shows that termination of Mother’s parental rights support the best-
interest finding.
The emotional and physical danger to the child now and in the future
A parent’s drug use supports a positive finding on the third Holly factor that
termination is in the best interest of the child. Interest of D.M.M., No. 14-18-
00750-CV, 2019 WL 546029, at *8 (Tex. App.—Houston [14th Dist.] Feb. 12,
2019, pet. denied). The factfinder can give “great weight” to the “significant
factor” of drug-related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.–Dallas
2007, no pet.); see also, In re J.J.W., No. 14-18-00985-CV, 2019 WL 1827591, at
*6 (Tex. App. Houston [14th Dist. 2019, pet. denied) (“Drug abuse and its effect
on the ability to parent can present an endangering course of conduct.”); See In re
B.S.W., No. 14-04-00496-CV, 2004 WL 2964015 at *9 (Tex. App. – Houston
[14th Dist.] 2004, no pet.) (mem. op.)(a parent’s continued drug use under court
scrutiny demonstrates a parent’s inability to care for children and such failure over
prolonged period is pattern court can find will likely continue such that
permanency can only be achieved through termination and adoption).
Elsea made a disclosure prompting the allegation was Elsea was sexually
abused while in Mother’s care. The Department also responded to a report by the
caregiver that Elsea was under the covers and she was not sure if the foster brother
was touching Elsea inappropriately. The Department case worker testified on the
subject and stated she spoke to Elsea who said it was nothing, he did not touch her
and it was blown out of proportion. After investigation, the case was ruled out, but
the caseworker further explained that there was a safety plan and the caregiver
went to additional training for parenting children victims of sexual abuse.
In light of these considerations, we conclude evidence implicating the third
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factor shows that termination of Mother’s parental rights support the best-interest
finding.
Desires of the Child
The mother testified when she had visits with the child while in CPS care,
the child put her head in her lap, cried and told her she did not want to leave unless
she went with her and wanted her life back to normal. However, the Department
documented that Mother’s visits with her daughter were cancelled as of April 2021
“due to allegations of sexual abuse of her daughter while in her care.” The
caseworker stated when Mother’s visits were stopped with Elsea after this
disclosure, Elsea did not seem to miss the visits. At trial, the Department presented
testimony that Elsea was doing well, her behaviors improved tremendously, and
she was doing well in school. There was also testimony that Elsea was bonded with
her caregiver and called her both by her first name and mom.
In light of these considerations, we conclude evidence implicating the first
factor shows that termination of Mother’s parental rights support the court’s best-
interest finding.
The plans for the child by the individuals or agency seeking custody
Placement plans and adoption are relevant but “the lack of evidence about
definitive plans for permanent placement and adoption cannot be the dispositive
factor.” In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). The issue is “whether, on the
entire record, a factfinder could reasonably form a firm conviction or belief that
termination of the parent’s rights would be in the child’s best interest even if the
agency is unable to identify with precision the child’s future home environment.”
Id.Mother did not state a plan for her child. Her only plan was for the court to
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give her more time to participate in inpatient therapy. Because Mother did not
make changes to secure a safe home for Elsea, the Department’s plan for Elsea was
adoption. Elsea’s foster caregiver had not affirmatively expressed interest in
adopting her; however, the caseworker indicated a legal risk broadcast was sought.
The caseworker acknowledged she had not been personally successful with a legal
risk broadcast involving a 10-year-old with serious past trauma; however, the
Child Advocate believed adoption was possible. The Child Advocate added she
personally saw two 10-year-olds successfully placed in permanent homes through
legal risk broadcast efforts.
Considering all the evidence already mentioned that established Mother’s
instability and inappropriate illegal drug behaviors, the trier of fact had sufficient
basis to find termination of Mother’s parental rights was in Elsea’s best interest
even if the final home environment for Elsea was not yet identified. See In re C.H.,
89 S.W.3d at 28.
The Acts or Omissions of the Parents, and any excuses
Evidence supporting termination under the grounds listed in section
161.001(b)(1) also can be considered in support of a finding that termination is in
the child’s best interest. See C.H., 89 S.W.3d at 27 (holding the same evidence
may be probative of both section 161.001(b)(1) grounds and best interest).
Specifically, here the trial court could properly consider that Mother 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).
Mother gave no excuse for why she used illegal drugs during this case and
gave no excuse why she failed to secure a safe, stable home. Mother mentioned her
own mother was dying, a fact with which we sympathize, but not an excuse for her
drug use or failure to maintain a safe, stable home for Elsea, nor a basis to
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postpone final determination in this case.
In light of these considerations, we conclude evidence implicating the eighth
and ninth factors show that termination of Mother’s parental rights support the
best-interest finding.
Conclusion of Best Interest of the Child Analysis
In summary, the proof under each of the factors discussed above weighs in
favor of the trier of fact’s firm belief or conviction that termination of Mother’s
parental rights was in the child’s best interest. That proof established Mother was
neglectful in her care of Elsea and continued thereafter by engaging in illegal drug
use throughout this case. Also, Mother failed to complete basic tasks the court
ordered for reunification and failed to show that she made any changes to give the
court assurance she was willing and able to provide a safe home. Though her
childhood experience in foster care has not been without mishap, she has
increasingly bonded with her foster family while in care, made improvements in
her behaviors, and her special physical and emotional needs were being addressed.
There was no disputed fact of significance to weigh against this proof that
supported the fact finder’s firm belief or conviction that termination was in Elsea’s
best interest.
Accordingly, we overrule appellant’s third issue.
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III. CONCLUSION
We affirm the trial court’s judgment terminating Mother’s parental rights to
Elsea.
/s/ Randy Wilson
Justice
Panel consists of Justices Bourliot, Hassan and Wilson. (Bourliot, J. and Hassan, J.,
concurring without opinion).
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