In the Interest of Z.S., a Child v. the State of Texas

Opinion filed December 21, 2023
In The
Eleventh Court of Appeals
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No. 11-23-00184-CV
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IN THE INTEREST OF Z.S., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10763-CX
MEMORANDUM OPINION
This is an accelerated appeal from an order in which the trial court terminated
the parental rights of the mother, Appellant, to her infant son, Z.S.1 On appeal,
Appellant presents one issue in which she challenges the legal and factual
sufficiency of the evidence to support the trial court’s finding that termination is in
Z.S.’s best interest. We affirm the trial court’s order of termination.
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The trial court also terminated the parental rights of Z.S.’s unknown father. No appeal has been
filed on behalf of the father.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2023). To terminate
parental rights, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U), 2 and that
termination is in the best interest of the child. Id. at § 161.001(b)(2).
In the present case, after a bench trial, the trial court found that Appellant:
(1) engaged in conduct which endangered Z.S.’s physical or emotional well-being;
and (2) failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain the return of Z.S. who has been in
the temporary managing conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child’s removal from
Appellant for abuse or neglect. See FAM. § 161.001(b)(1)(E), (O). The trial court
further found, pursuant to Section 161.001(b)(2), that termination of Appellant’s
parental rights was in the child’s best interest. Id. § 161.001(b)(2). Appellant
challenges the legal and factual sufficiency of the evidence to support the trial court’s
finding that termination of her parental rights is in the best interest of Z.S.
In reviewing a legal sufficiency challenge, we must decide whether a
reasonable trier of fact could have formed a firm belief or conviction that its finding
was true. In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). “Bearing in mind the
2
We note that the legislature recently amended Section 161.001 to include additional requirements
for trial courts in termination suits filed by the Department of Family and Protective Services (the
Department) and a new ground for termination that relates to convictions for criminal or online solicitation
of a minor; however, these amendments only apply to suits filed on or after September 1, 2023. Act of
May 26, 2023, 88th Leg., R.S., ch. 728, §§ 1, 3, 2023 Tex. Sess. Law Serv. 1770, 2177 (codified at FAM.
§ 161.001(b)(1)(V)); Act of May 29, 2023, 88th Leg., R.S., ch. 675, §§ 1, 8, 2023 Tex. Sess. Law. Serv.
1646–47 (codified at FAM. § 161.001(f), (g)). The original petition to terminate the parent-child
relationship in this case was filed on July 8, 2022. We therefore apply the law in effect on the date the suit
was filed.
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required appellate deference to the factfinder, we look at all the evidence in the light
most favorable to the finding, assume the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so, and disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” Id.
(internal quotation marks omitted). “However, we may not disregard undisputed
facts that do not support the finding,” and the factfinder is the sole arbiter of the
witnesses’ credibility and demeanor. Id. (quoting In re J.F.-G., 627 S.W.3d 304,
312 (Tex. 2021)) (internal quotation marks omitted).
In assessing whether the evidence is factually sufficient, we weigh disputed
evidence contrary to the finding against all the evidence favoring the finding. In re
A.C., 560 S.W.3d 624, 631 (Tex. 2018). Giving due deference to the finding, we
determine whether, based on the entire record, a factfinder could reasonably form a
firm belief or conviction about the truth of the allegations against the parent. In re
C.H., 89 S.W.3d 17, 25–26 (Tex. 2002); In re L.C.C., 667 S.W.3d 510, 512 (Tex.
App.—Eastland 2023, pet. denied).
With respect to the best interest of a child, no unique set of factors need be
proved. L.C.C., 667 S.W.3d at 513. But courts may use the non-exhaustive Holley
factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). These include, but are not limited to: (1) the desires of the child; (2) the
emotional and physical needs of the child now and in the future; (3) the emotional
and physical danger to the child now and in the future; (4) the parental abilities of
the individuals seeking custody; (5) the programs available to assist these individuals
to promote the best interest of the child; (6) the plans for the child by these
individuals or by the agency seeking custody; (7) the stability of the home or
proposed placement; (8) the acts or omissions of the parent that may indicate the
existing parent-child relationship is not a proper one; and (9) any excuse for the acts
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or omissions of the parent. Id. Additionally, evidence that proves one or more
statutory grounds for termination may constitute evidence illustrating that
termination is in the child’s best interest. In re C.J.O., 325 S.W.3d 261, 266 (Tex.
App.—Eastland 2010, pet. denied).
Evidence Presented at Trial
The record shows that the Department became involved in July of 2022,
approximately one month after Z.S. tested positive for cannabinoids at birth.
Appellant’s hair follicle drug test indicated that she was positive for
methamphetamine and marihuana metabolite. During the month that Z.S. was in
Appellant’s care, Appellant left him in a car by himself and admitted to giving him
apple juice and prune juice “for severe constipation.”
After removal, the Department created a family service plan for Appellant
with which the trial court ordered her to comply. Appellant’s service plan required
her to maintain safe and stable housing, to maintain steady and legal employment,
and to undergo a mental health evaluation and psychological examination and follow
all recommendations thereof. She was also ordered to submit to random drug testing
and participate in substance abuse counseling.
Throughout the year that Appellant’s case was pending, she lived in at least
six different locations. Appellant resided in a women’s shelter called the Noah
Project when Z.S. was removed but was expelled shortly thereafter for violating the
shelter’s alcohol policy. She next went to a respite care facility through the Betty
Hardwick Center but was removed for “coming home smelling of alcohol.”
Appellant stayed at the Salvation Army for “[a] couple of nights” before moving in
with the manager of the strip club where she was working. She left after the manager
assaulted her and rented an apartment in October of 2022.
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Appellant became delinquent on rent, so she left her apartment after three or
four months. She moved in with two males that she met while working at
McDonald’s. When the caseworker, Cameron Walker, visited the home, he saw
drug paraphernalia and smelled marihuana. Shortly thereafter, Appellant and Jarred,
one of her roommates who impregnated her, moved to a different apartment. Finally,
in May of 2023, two months before the final hearing, Appellant briefly lived in San
Antonio, then returned to Abilene.
Walker and Appellant were the only two testifying witnesses at the final
termination hearing. They agreed on Appellant’s lack of stable housing but gave
differing accounts of Appellant’s drug use and performance of her service plan
requirements.
In addition to testing positive at the beginning of the case, Appellant tested
positive for methamphetamine, cocaethylene, cocaine metabolite, and marihuana
metabolite in September of 2022. She refused to submit to drug testing in December
of 2022 and in February and March of 2023. Appellant testified that she last used
methamphetamine “a long, long, long, long time ago,” and “[e]xperimented with
pills, silly stuff” when she was “much younger.” However, she simultaneously
attested that the only drug she ever used was marihuana.
Appellant attributed her positive test in June to methamphetamine exposure
while living in a “trap house” in San Antonio. To explain her positive test results
from September, Appellant posited that unknown individuals broke into her
apartment and “laced [her] up,” or put cocaine and methamphetamine in her drinks.
When asked about Z.S.’s positive test, she stated that she had no concerns, because
“there was no reason” for her or Z.S. to test positive.
Appellant maintained that Z.S. faced no difficulties or developmental issues.
But according to Walker, Z.S. was born with gastrointestinal issues, an extra digit
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on each hand, torticollis, and was slow to hold his head up and sit up on his own.
Z.S. did not tolerate gluten, soy, and lactose for the first ten months of his life and
required several months of occupational and physical therapy to overcome his
developmental delays.
Since April of 2023, Z.S. has been living with his great aunt, S.J., in Virginia,
who is willing and able to meet Z.S.’s physical, mental, and emotional needs long-
term.
Prior to April, Appellant consistently attended her weekly supervised visits
with Z.S., yet not without complications. The visitation supervisor reported that
Appellant “seemed under the influence” on a few occasions, and that she once had
to block the door to stop Appellant from leaving with Z.S. Appellant attempted to
bring a beer to another visit and threatened a 2INgage employee in February of 2023.
Appellant asserted that she completed several of her service plan
requirements, including individual counseling and substance abuse counseling. But
Walker reported that Appellant did not engage in mental health services. Appellant
was referred to substance abuse counseling and parenting classes but never attended
her scheduled appointments. Appellant protested her bipolar disorder and alcohol
use disorder diagnoses and failed to follow the recommendations of her
psychological evaluation. According to Appellant, her mental health issues are
resolved.
The Department asked the trial court to terminate Appellant’s parental rights
to Z.S. so that S.J. could adopt him. Appellant asked the trial court not to terminate
her parental rights but requested that Z.S. remain with S.J. “until everything is sorted
out.” The trial court found by clear and convincing evidence that Appellant’s drug
use endangered Z.S.’s emotional or physical well-being, and that Appellant failed to
comply with her Family Plan of Service, which she was ordered to complete by the
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trial court for the return of her child. See FAM. § 161.001(b)(1)(E), (O). The trial
court further found that terminating Appellant’s parental rights was in Z.S.’s best
interest. See id. § 161.001(b)(2).
Best Interest of the Child
In Appellant’s sole issue, she asserts that the evidence presented at trial was
insufficient to prove by clear and convincing evidence that the termination of her
parental rights is in the best interest of Z.S. The trial court, as the trier of fact, is the
sole judge of the witnesses’ credibility. J.F.-G., 627 S.W.3d at 312. We are not at
liberty to disturb the determinations of the trier of fact so long as those
determinations are not unreasonable. Id. at 311–12; In re J.P.B., 180 S.W.3d 570,
573 (Tex. 2005). Giving due deference to the trial court, we hold that, based on the
evidence and the Holley factors, the trial court could have reasonably formed a firm
belief or conviction that termination of Appellant’s parental rights would be in the
best interest of Z.S. See Holley, 544 S.W.2d at 371–72.
The trial court was presented with ample evidence that Appellant lacked the
parental abilities to meet Z.S.’s physical and emotional needs now and in the future.
It is undisputed that Appellant failed to maintain a safe and stable environment for
her child, and that she wanted Z.S. to remain with her aunt “[u]ntil housing comes
in.” Appellant testified that she has been waiting over a year for rental assistance
through the federal housing choice voucher program.
Appellant’s housing matters aside, perhaps most concerning is her wholesale
denial of her mental health and substance abuse issues, and how they affected Z.S.
Appellant was indifferent when asked about Z.S.’s positive drug test and told the
trial court that he had no developmental delays. Yet, the evidence shows that Z.S.
endured several months of therapy to hold his head up, stand, and walk. And,
according to Appellant, her positive drug tests were purportedly due to unidentified
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intruders breaking into her apartment and putting cocaine and methamphetamine in
her drinks, and her being exposed to methamphetamine while living in “trap houses.”
The trial court’s best-interest finding is supported by clear and convincing
evidence. The trial court, as the factfinder, was free to believe that Appellant
voluntarily used drugs while pregnant with Z.S. and continued to do so thereafter.
See In re J.W., 645 S.W.3d at 741. Appellant endangered Z.S. through her drug use.
See In re E.M., 494 S.W.3d 209, 222–23 (Tex. App.—Waco 2015, pet. denied) (“A
parent’s continued drug use demonstrates an inability to provide for the child’s
emotional and physical needs and to provide a stable environment for the child.”)
(citing In re F.A.R., No. 11-04-00014-CV, 2005 WL 181719, at *4 (Tex. App.—
Eastland Jan. 13, 2005, no pet.) (mem. op.)).
Appellant likewise failed to acknowledge her mental health issues, despite
evidence to the contrary. See In re R.J., 579 S.W.3d 97, 118 (Tex. App.—Houston
[1st Dist.] 2019, no pet.) (“While mental illness is not a ground for parental
termination, the impact of a parent’s mental illness on [his or her] ability to parent
and the stability of the home are relevant factors in the best interest of the child
analysis.”); In re A.T., No. 11-22-00252-CV, 2023 WL 2169512, at *5 (Tex. App.—
Eastland Feb. 23, 2023, pet. denied) (evidence was legally and factually sufficient
to support the trial court’s best interest finding considering, among other factors in
the record, the appellant’s continuing mental health issues, her criminal activity
while the case was pending, and the instability of her situation).
The record also revealed that Appellant’s parental rights to her five-year-old
child were terminated in September of 2022. See C.H., 89 S.W.3d at 28 (a parent’s
prior history of child neglect has a bearing on the parent’s fitness to provide for his
or her other children). In this regard, Appellant refused to take accountability for
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her actions contributing to that termination order, claiming that she was
“misrepresented,” and “[t]here [were] a lot of discrepancies.”
Most importantly, given the child-centered focus of the best-interest inquiry,
we may not discount or minimize Z.S.’s improvement since removal. See J.W., 645
S.W.3d at 746–47. Z.S. became quickly attached to S.J., who took twelve weeks off
of work to care for Z.S. as he adjusted to his new home. The Department concluded
that S.J. is willing and able to meet Z.S.’s physical, mental, and emotional needs and
wishes to adopt him. Even Appellant agreed that Z.S. was safe with S.J.
The evidence showed that Appellant failed to maintain safe and stable
housing, did not submit to drug testing on several occasions, tested positive at least
twice throughout the pendency of the case, did not provide proof of employment,
and refused to engage in mental health services. Not only has Appellant failed to
address the Department’s initial reasons for intervening—her drug use—she refused
to acknowledge it, and it continued throughout the year after service initiation. See
Holley, 544 S.W.2d at 371–72; In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied) (noting a parent’s drug use supports finding
that termination is in best interest of the child). The trial court may have reasonably
inferred that past endangering conduct may occur again in the future if the child is
returned to Appellant. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston
[14th Dist.] 2014, no pet.); see also C.H., 89 S.W.3d at 27 (holding the same
evidence supporting termination under one of the grounds listed in § 161.001(b)(1)
may be probative in a best interest determination); C.J.O., 325 S.W.3d at 266 (same).
Given Appellant’s indifference and dismissal of the Department’s concerns, we
conclude that the trial court could have reasonably found that terminating her
parental rights was in Z.S.’s best interest.
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Upon considering the record as it relates to Appellant’s actions and inactions,
the emotional and physical danger to the child now and in the future, the emotional
and physical needs of the child now and in the future, Appellant’s parental abilities,
her drug use, and the plans for the child by the Department, we hold that the evidence
is legally and factually sufficient to support the finding that termination of
Appellant’s parental rights is in the best interest of the child. See Holley, 544 S.W.2d
at 371–72; J.W., 645 S.W.3d at 741. Accordingly, we overrule Appellant’s sole
issue.
This Court’s Ruling
We affirm the order of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
December 21, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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