Opinion issued July 31, 2014




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                               NO. 01-14-00113-CV
                           ———————————
                   IN THE INTEREST OF A.S., A CHILD



                   On Appeal from the 314th District Court
                           Harris County, Texas
                     Trial Court Case No. 2013-00087J


                         MEMORANDUM OPINION

      This is an appeal from the termination of the parental rights of a mother,

C.L.H., with respect to her daughter, A.S. See TEX. FAM. CODE ANN. § 161.001

(West Supp. 2012). On appeal, the mother argues that the evidence is legally and

factually insufficient to support the trial court’s findings that she committed a




                                        1
predicate act required for termination and that termination was in her daughter’s

best interest.

       We affirm.

                                   Background

       When A.S. was born on January 4, 2013, both she and her mother tested

positive for opiates and barbiturates. The hospital notified the Department of

Family and Protective Services, which was already acquainted with the mother by

reason of its involvement in cases involving her older children who were not living

with her the time A.S. was born. The Department took the newborn A.S. into foster

care. An affidavit sworn by a caseworker for the Department and filed in support

of removal stated that the mother had taken hydrocodone, a narcotic pain

medication, during pregnancy against medical advice. The caseworker attested that

she was informed by an assistant to the mother’s primary care physician, Dr.

Tanveer Syed, that the mother had called the office to request a hydrocodone refill,

but the doctor refused to call in the prescription based upon the belief that the

mother was pregnant. The staffer also communicated that hydrocodone is

“absolutely not to be taken” during pregnancy, and that Dr. Syed “had great

concerns” that the mother “had a problem with pain medication.”

       The affidavit also explained the mother’s prior history with the Department

involving her older children. This included physical abuse to a daughter, who was

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injured as an infant when the mother had an argument with that child’s father. The

affidavit stated that parental rights were terminated with respect to that child, who

was adopted. Another incident involved sexual abuse to another daughter

perpetrated by the mother’s then-boyfriend. The affidavit stated that the mother

was “not willing to protect the children and not have [the boyfriend] around the

children and continues to allow him to live in the home.” As a result of that

incident, the mother relinquished her parental rights to six of her children, who

were placed with a family member. Finally the affidavit stated that the mother’s

rights were terminated as to another baby for neglectful supervision based on

allowing the father of that child to care for her, despite his history of sexually

abusing another child.

      At a show-cause hearing, the caseworker testified that A.S. was the mother’s

tenth child and she had voluntarily relinquished her parental rights to three of those

children. In addition, both the mother and the baby tested positive for hydrocodone

when A.S. was born. The mother told the caseworker that she had a prescription

and showed her an empty bottle, but the doctor’s assistant told the caseworker that

the mother’s hydrocodone prescription was “not valid.”

      The evidence at the show-cause hearing focused on whether the mother had

a valid prescription for hydrocodone and whether she had lied to her doctor about

terminating her pregnancy in order to obtain the medication. Dr. Syed testified that


                                          3
she initially prescribed hydrocodone to the mother as a pain reliever for a tooth

abscess. Medical records admitted at the show-cause hearing showed that the

mother had a positive pregnancy test several months earlier, but she had informed

the doctor that she intended to terminate the pregnancy. The records also showed

that, contemporaneous with the initial hydrocodone prescription, she informed the

doctor that she was not pregnant and was using birth control pills. Dr. Syed

testified that the mother did not appear pregnant at the time when she was seen for

the tooth abscess. The doctor also testified that the mother informed her that she

had terminated the recent pregnancy.

      Dr. Syed said she would “probably not” have prescribed hydrocodone to the

mother if she had known she was still pregnant, testifying that hydrocodone is “a

category three substance where no ill effects are known of the hydrocodone but

there are category B drugs . . . like Tylenol or ibuprofen” that could have been

given. When questioned by the court, Dr. Syed agreed that the mother lied about

the abortion to obtain hydrocodone.

      The mother also testified at the show-cause hearing. She denied lying to Dr.

Syed about being pregnant or having had an abortion, saying that her pregnancy

was visible by that time. The mother also denied specifically asking Dr. Syed to

prescribe hydrocodone, testifying that she simply told the doctor that she was in

pain and needed antibiotics for an infection. The mother saw Dr. Syed twice in


                                         4
September 2012, just over two weeks apart, and Dr. Syed gave her two

prescriptions, each for 40 pills of hydrocodone. The mother testified that she used a

total of 58 pills over a six-week period, “as needed for pain.” She stated that the

doctor did not advise her that hydrocodone could harm an unborn child.

      The mother also admitted taking phenobarbital and Tegretol during her

pregnancy, both prescribed by Dr. Syed, to prevent seizures from which she had

suffered since childhood. She did not know of any side effects of phenobarbital

and did not recall if the accompanying product literature advised the patient to seek

medical advice with regard to use of the medication during pregnancy.

      According to the mother, A.S. was “perfectly fine . . . perfectly healthy and

normal,” and the hospital social worker believed that A.S. should have been

allowed to leave the hospital with her. The mother testified that she was prepared

to care for an infant—she had a car seat, a crib, clothes, diapers, and an apartment.

The father of A.S. also testified at the show-cause hearing. He said that he lived

with the mother, worked as an auto mechanic, supported the mother, and would be

able to help care for the baby if she were returned home.

      The trial court and the attorney ad litem discussed the mother’s credibility,

specifically noting that she testified that she would never give up a baby despite

having previously relinquished her parental rights to several other children. The

court named the Department as temporary managing conservator.


                                         5
      The Department created a family service plan which required the mother to

take numerous actions including therapy, drug testing, parenting classes, attending

hearings and meetings, maintaining housing, remaining drug-free, demonstrating

financial responsibility, visiting her child, and completing 90 days of inpatient drug

treatment. The plan made clear that her ability to visit with A.S. depended on her

participation in services. The mother refused to sign the family service plan or

participate in most services, and in March 2013, the trial court approved the family

service plan and incorporated it into a status hearing order “as if set out verbatim.”

The court ordered the mother “to timely comply with each and every task of that

family service plan.” The status hearing order also stated:

      THIS COURT ADVISES THAT THE FAMILY SERVICE PLANS,
      APPROVED AND INCORPORATED BY THIS ORDER AS SET
      FORTH ABOVE, SPECIFICALLY ESTABLISH THE ACTIONS
      NECESSARY FOR THE PARENTS TO OBTAIN RETURN OF
      THE CHILD WHO IS IN THE TEMPORARY MANAGING
      CONSERVATORSHIP OF THE DEPARTMENT, AND THIS
      COURT FURTHER ADVISES THE PARENTS THAT FAILURE
      TO FULL[Y] COMPLY MAY RESULT IN THE RESTRICTION
      OR TERMINATION OF HIS OR HER PARENTAL RIGHTS.

      Although the mother refused to complete most of the services included in

the family service plan, she did submit to drug testing in January, March, and July

2013. The January hair follicle test was positive for phenobarbital and

hydrocodone; the March test was positive for barbiturates, codeine, hydrocodone,




                                          6
and morphine; and the July test was positive for barbiturates and benzodiazepines

(oxazepam, nordiazepam, and temazepam).

      Meanwhile, A.S. thrived in foster care and became bonded to her foster

family. The Department maintained a primary goal of unrelated adoption and a

concurrent goal of relative adoption.

      The termination hearing was tried to the court in January 2014. The mother’s

family service plan, the status hearing order incorporating the family service plan,

the mother’s drug test results, the mother’s and child’s medical records, and the

transcript from the show-cause hearing were admitted without objection. The court

also admitted the two doctor’s reports that were previously admitted at the show-

cause hearing.

      The father testified that he had been in a relationship with the mother and

lived with her for four years, which included the time when she relinquished her

parental rights to her older children. He was aware that the mother had a problem

with cocaine in 2011, before she became pregnant with A.S., but no further

information or testimony about the nature, extent, or duration of, or any treatment

for or rehabilitation from this problem was introduced.

      Yet the father denied that the mother had a problem with prescription drugs.

Although he could not identify all of the medications the mother was taking, he

testified that she went to doctors to obtain prescriptions and did not take any drugs


                                          7
that were not prescribed to her. He also testified that he attended prenatal medical

appointments with the mother and that he was present when she saw Dr. Syed. He

testified that on the occasion when Dr. Syed prescribed hydrocodone, the mother

did not tell the doctor she was going to have an abortion and did inform the doctor

that she was pregnant. Nevertheless, on cross-examination, the father agreed that it

would not be “healthy” for the mother to take hydrocodone while pregnant and that

he believed she was “wrong” to do so.

      The father also provided testimony that tended to show the parents’

readiness for the return of their child. He testified that he and the mother had lived

in the same apartment for more than three years. Photographs taken the day before

trial showed the condition of the apartment, which was clean, tidy, and furnished.

They also showed baby supplies, clothing, and food. He said the apartment was

“very much ready” for the baby. He testified that they had a bed for the baby, but

he acknowledged that he had not assembled it because it was “stressful” to see the

empty crib. He also testified that they had a car seat, diapers, clothing, food, and

other baby supplies.

      Finally, the father testified about the relationship of the mother to A.S. and

his stability as a wage-earner. He said that A.S. responded “very well” to the

mother during the parents’ sole visit with the child since her birth, which occurred

approximately one month before trial. The father testified that the mother was “a


                                          8
very good mother” who behaved appropriately and treated A.S. “like a little

queen” during the visitation. The father worked for himself in a mobile mechanic

business he had owned for 14 years, and the mother helped him with business

paperwork. All of the father’s drug tests were clean, and he denied using illegal

drugs.

         The Department’s caseworker testified that she had been to the mother’s

apartment, and she conceded that it was appropriate and contained baby items and

food. She also conceded that the mother told her that she had valid prescriptions

for her medications.

         However, the caseworker painted a different picture regarding the

interactions between the parents and A.S. during their sole visitation. She testified

that A.S. was not bonded to the mother:

         The baby was a little bit upset and crying. The parents had some
         trouble consoling her. The father at one point made a video of her
         crying and played it back to her so that she could hear herself crying.
         And then the mother ended up giving the baby . . . to one of the staff
         members who was able to comfort the baby till she stopped crying.

The caseworker also testified that the parents did not cooperate with the

Department during the pendency of the case and had completed none of their

services. As a result of their failure to participate in services, they were allowed

only one visit with A.S. The child was living in a foster home, and she was “very,

very bonded” to the foster mother, who wanted to adopt her. The caseworker


                                           9
believed it would be in the best interest of the child for the court to terminate the

mother’s parental rights.

      Finally, the mother testified. She denied having taken any drug for which

she did not have a valid prescription. Her “Patient Prescription Record” from a

retail pharmacy was admitted into evidence. The records showed that from January

2013 to January 2014, the pharmacy filled more than 85 individual prescriptions

for the mother for a variety of medications, including narcotic and non-narcotic

pain relievers, antibiotics, and anti-seizure medications. The majority of these

medications were prescribed by three doctors.

      The mother said that when she appeared for hair follicle drug testing, she

was never asked if she was on prescription medication. She said she tried to show

her prescriptions to the technician but was told that because the court and the

Department knew she had evidence of her prescriptions, “then that was fine.” The

mother testified that all the positive drug tests during the pendency of this case

were due to her use of prescribed medications. She testified that she takes

phenobarbital and Tegretol, also known as carbamazepine, to control seizures,

from which she had suffered since childhood. She testified that she was

hospitalized in September 2013 for a miscarriage, and that she was given

hydrocodone in the hospital and discharged with a prescription for acetaminophen




                                         10
and codeine. She also testified that she used hydrocodone for pain after giving

birth to A.S.

      She acknowledged using hydrocodone during her pregnancy for pain

associated with a tooth abscess, but she again denied telling the doctor that she had

terminated a pregnancy. To the contrary, she said, “I told her I was pregnant.” She

testified that she did not know the side effects of hydrocodone on pregnancy, the

doctor did not discuss that with her, she did not read the pamphlets that came with

the medication, and she did not think there was any reason not to take it.

      Because the mother broadly denied having taken any drug for which she did

not have a prescription, the attorney ad litem asked the mother about a positive

drug test for cocaine in December 2011, which was before the mother became

pregnant with A.S. The mother denied having used cocaine and testified that she

had been drugged by an acquaintance, saying a subsequent drug test was “clean.”

The positive drug test result for cocaine from December 2011 was admitted into

evidence.

      The mother conceded that she did not complete the services in her family

service plan, even though her visitation with A.S. was predicated on her doing so.

She said she did not comply with the family service plan because she did not do

anything wrong. Finally, she asked for a chance to parent her child, suggesting that




                                         11
the Department “can stay in my life” “still supervising me,” and noting that she

previously parented her older children.

      The trial court terminated the mother’s parental rights on grounds of

endangerment (§ 161.001(1)(E)), abandonment (§ 161.001(1)(N)), and failure to

comply with a court order (§ 161.001(1)(O)), and it appointed the Department sole

managing conservator. The mother appealed, challenging the legal and factual

sufficiency of the evidence to support the court’s termination decree.

                                       Analysis

      In four issues, the mother challenges the legal and factual sufficiency of the

evidence supporting the judgment terminating her parental rights with respect to

A.S. Protection of the best interest of the child is the primary focus of the

termination proceeding in the trial court and our appellate review. See In re A.V.,

113 S.W.3d 355, 361 (Tex. 2003). A parent’s right to the care, custody, and control

of her child is a precious liberty interest protected under the Constitution. See, e.g.,

Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); Santosky v.

Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982). Accordingly,

termination proceedings are strictly scrutinized on appeal. Holick v. Smith, 685

S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence must support the

decision to terminate parental rights. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex.

2002); see also Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92.


                                          12
      Under the clear-and-convincing-evidence standard, evidence is legally

sufficient if it is “such that a factfinder could reasonably form a firm belief or

conviction about the truth of the matter on which the State bears the burden of

proof.” J.F.C., 96 S.W.3d at 265–66; see TEX. FAM. CODE ANN. § 101.007 (West

2008) (defining clear and convincing evidence). We review “the evidence in the

light most favorable to the judgment,” meaning that we “must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder

could do so.” J.F.C., 96 S.W.3d at 266. “If, after conducting its legal sufficiency

review of the record evidence, a court determines that no reasonable factfinder

could form a firm belief or conviction that the matter that must be proven is true,

then that court must conclude that the evidence is legally insufficient.” Id. “In a

bench trial, the trial court, as factfinder, is the sole judge of the credibility of the

witnesses.” HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108,

111 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing S.W. Bell Media, Inc. v.

Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992, writ denied));

see City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).

      Under factual sufficiency review, we must “determine whether ‘the evidence

is such that a factfinder could reasonably form a firm belief or conviction about the

truth of the State’s allegations.’” In re A.B., No. 13-0749, 2014 WL 1998440, at *3

(Tex. May 16, 2014) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “If, in


                                          13
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, then the evidence is factually

insufficient.” J.F.C., 96 S.W.3d at 266. In making this determination, we must

undertake “an exacting review of the entire record with a healthy regard for the

constitutional interests at stake.” C.H., 89 S.W.3d at 26.

      In proceedings to terminate the parent-child relationship, the Department

must establish that one or more of the acts or omissions listed in Family Code

section 161.001(1) occurred and that termination is in the best interest of the child.

See TEX. FAM. CODE ANN. § 161.001. Both elements must be established, and

termination may not be based solely on the best interest of the child as determined

by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987). “Only one predicate finding under section 161.001(1) is necessary to

support a judgment of termination when there is also a finding that termination is

in the child’s best interest.” A.V., 113 S.W.3d at 362. In this case, the trial court

based the termination of the mother’s parental rights on the predicate grounds of

endangerment, see TEX. FAM. CODE ANN. § 161.001(1)(E), constructive

abandonment, see id. § 161.001(1)(N), and failure to comply with a court order,

see id. § 161.001(1)(O).




                                          14
I.    Failure to comply with a court order (§ 161.001(1)(O))

      The mother argues that the evidence is legally and factually insufficient to

support the trial court’s decree under subsection (O). She argues that A.S. was not

removed for abuse or neglect because she had a valid prescription for the

hydrocodone that she used during pregnancy and because the doctor testified at the

show cause hearing that there are no known ill effects of hydrocodone. Section

161.001(O) provides that a court may order termination of the parent-child

relationship if it finds by clear and convincing evidence that the parent has:

      failed to comply with the provisions of a court order that specifically
      established the actions necessary for the parent to obtain the return of
      the child who has been in the permanent or 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
      the parent under Chapter 262 for the abuse or neglect of the child.

TEX. FAM. CODE ANN. § 161.001(O). The Supreme Court has held that, as pertinent

to section 161.001(O), the words “abuse or neglect” are “used broadly” and

necessarily include “the risks or threats of the environment in which the child is

placed.” In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). The Court explained that

“[p]art of that calculus includes the harm suffered or the danger faced by other

children under the parent’s care.” Id. Thus “a reviewing court may examine a

parent’s history with other children as a factor of the risks or threats of the

environment.” In re K.N.D., 424 S.W.3d 8, 10 (Tex. 2014).



                                          15
      Here the affidavit of removal details the mother’s involvement with the

Department and her history of abuse or neglect of her older children. Thus, we

conclude that, without regard to whether the mother’s prescription for hydrocodone

was valid or her use of the hydrocodone actually harmed her baby, A.S. was

removed for abuse or neglect. See id.; E.C.R., 402 S.W.3d at 248.

      The evidence is undisputed that the mother failed to comply with the

provisions of the court order adopting the family service plan “in full . . . as if set

out verbatim.” The mother refused to sign the plan and refused to participate in

services because she believed that she had done nothing wrong. In light of our

conclusion that A.S. was removed for “abuse or neglect” and the undisputed

evidence that the mother did not comply with the court-ordered family service

plan, and viewing the evidence both in the light most favorable to the judgment

and in a neutral light, we conclude that a factfinder could have formed a firm belief

or conviction that the mother failed to comply with the provisions of a court order

that specifically established the actions necessary for her to obtain the return of

A.S. See TEX. FAM. CODE ANN. § 161.001(O). We hold that the evidence is legally

and factually sufficient to support the court’s termination decree on the grounds of

§ 161.001(O). See J.F.C., 96 S.W.3d at 265–66. Accordingly, we need not

consider the mother’s other arguments as to § 161.001(E) or (N). See A.V., 113

S.W.3d at 362.


                                          16
II.   Best interest of the child (§ 161.001(2))

      The mother also challenges the legal and factual sufficiency of the evidence

to support the trial court’s finding that termination of the parent-child relationship

was in the child’s best interest. In determining whether termination of the mother’s

parental rights was in the child’s best interest, we consider several nonexclusive

factors, including (1) the child’s desires, (2) the current and future physical and

emotional needs of the child, (3) the current and future physical danger to the

child, (4) the parental abilities of the person seeking custody, (5) whether programs

are available to assist the person seeking custody in promoting the best interests of

the child, (6) plans for the child by the person seeking custody, (7) stability of the

home, (8) acts or omissions of the parent that may indicate that the parent-child

relationship is improper, and (9) any excuse for acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Department is not

required to prove all of these factors, and the absence of evidence about some

factors does not preclude the factfinder from reasonably forming a strong

conviction that termination is in the child’s best interest. See C.H., 89 S.W.3d at

27. Evidence establishing one of the predicate acts under section 161.001(1) may

also be relevant to determining the best interest of the child. See id. at 27–28.




                                          17
A.    Child’s desires and plans for the child

      The first Holley factor, the child’s desires, is neutral or slightly favors

termination of the mother’s parental rights. First, A.S. was only a year old and was

too young to testify about her desires. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex.

App.—Houston [1st Dist.] 2013, no pet.). “The young age of the child render[s]

consideration of the child’s desires neutral.” In re A.C., 394 S.W.3d 633, 643 (Tex.

App.—Houston [1st Dist.] 2012, no pet.). However, there was some evidence to

show that A.S. was “very, very bonded” to her foster mother who wished to adopt

her, whereas the mother had visited with A.S. only once since her birth and A.S.

was not bonded to her. See Adams v. Tex. Dep’t of Family & Protective Servs., 236

S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Because the

evidence shows a lack of emotional bond between the mother and her infant child,

it weighs slightly in favor of termination. See id. The sixth Holley factor, plans for

the child by the person seeking custody, is related to the first factor and weighs in

favor of the court’s decree. There is no specific evidence as to the mother’s plans

for A.S. She has visited with her only once since her birth. However, the

caseworker testified that the baby is well bonded to her foster mother, who wishes

to adopt her.




                                         18
B.    Needs of the child, mother’s parenting abilities, and stability of the
      home

      The second, fourth, and seventh Holley factors are all related in our

consideration of the best interests of this child. The second factor considers current

and future physical and emotional needs, while the fourth considers the parental

abilities of the person seeking custody. The evidence showed that A.S.’s needs

were being met in her foster care placement and that she was “very, very bonded”

to her foster mother, who wished to adopt her. This is some evidence that A.S.’s

current and future emotional and physical needs would be appropriately met by

termination of the mother’s parental rights. See In re S.T., 127 S.W.3d 371, 379

(Tex. App.—Beaumont 2004, no pet.) (considering that foster placement that met

children’s needs and plans for unrelated adoption were some evidence that

termination of parental rights was in the children’s best interest). Conversely,

although there was evidence that the mother and father had purchased items for

A.S., it was undisputed that neither parent provided any material support to the

child during the pendency of litigation.

      In addition, and encompassing the factor of the parental abilities of the

person seeking custody, we must consider the evidence that the mother had no

fewer than nine older biological children, none of whom lived with her. Moreover,

the mother had significant prior involvement with the Department in regard to her

older children, and she had a history of relinquishing her parental rights to her

                                           19
children. “Stability is important in a child’s emotional and physical development.”

T.G.R.-M., 404 S.W.3d at 17. The seventh Holley factor is the stability of the

home, and to the extent that factor is commonly interpreted to encompass a

parent’s ability to provide the child with food, clothing, and shelter, see id., it

would appear to weigh in favor of the mother. Here there was evidence that she

had been in a stable relationship with the father of A.S. for several years, had an

“appropriate” apartment, and was prepared with tangible items needed to care for a

child, like a car seat, baby bed, clothing, food, and diapers.

      However, under both our legal and factual sufficiency standards of review,

we also must give consideration to the undisputed evidence of the mother’s prior

history with the Department and prior relinquishments of many of her biological

children. “An adult’s future conduct may be somewhat determined by recent past

conduct.” Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston

[1st Dist.] 2007, no pet.). Thus, a reasonable factfinder could have considered the

risk to A.S. created by the mother’s history of instability in parenting her older

children.

C.    Physical danger to the child

      The third factor is the current and future physical danger to the child. Holley,

544 S.W.2d at 371–72. The evidence showed that the child was born with

hydrocodone in her system, but there was no other evidence adduced at trial


                                          20
specifically relevant to current or future danger to the child at the time of trial. This

factor is neutral.

D.     Availability of assistance

       The fifth Holley factor is whether programs are available to assist the person

seeking custody in promoting the best interests of the child. The mother refused to

participate in any services offered by the Department and ordered by the court.

This had the effect of depriving A.S. of an opportunity to bond with her mother,

because the mother’s visitation was contingent upon her participation in the family

service plan. The caseworker testified that the mother was wholly uncooperative

throughout the pendency of the case. The mother asked the court to give her a

chance to parent A.S. under the Department’s supervision, yet nothing in the

record indicates that she is, or has ever been, receptive to such involvement such

that any programs available through the Department would weigh in favor of

maintaining the parent-child relationship between the mother and A.S.

E.     Parental acts and omissions

       Finally, we consider the eighth and ninth factors together. These factors

consider acts or omissions of the parent that indicate the parent-child relationship

is improper, as well as any excuses therefor. Holley, 544 S.W.2d at 372. The

majority of the testimony in this case centered on the mother’s use of prescription

drugs during pregnancy and during the pendency of this case.


                                           21
      The State argues that the mother’s prescriptions were not valid because she

lied to the doctor about her pregnancy in order to obtain a narcotic pain reliever

when she was pregnant. Some evidence supports this theory. For example, Dr.

Syed testified at the show-cause hearing, and her records admitted at trial reflected

that the mother had told her she planned an abortion and was not pregnant. Dr.

Syed testified that she would not have prescribed hydrocodone if she had known

the mother was pregnant.

      Both the mother and father testified that she did not lie to the doctor, told the

doctor she was pregnant, and was visibly pregnant at the time Dr. Syed examined

her and prescribed hydrocodone. However, it was for the judge as finder of fact to

resolve this disputed question of fact based on its determination of the credibility

of the witnesses. See HTS Servs., 190 S.W.3d at 111. We defer to the trial court’s

inherent assessment of credibility in favor of the doctor. See id.

      The mother also provided prescription drug records and argued that because

the medications had been prescribed by a physician, she did nothing wrong by

using the medication. But her physician testified to the contrary at the hearing, by

observing that the mother affirmatively misrepresented her medical condition to

obtain narcotics. To the extent that the prescriptions may have been valid in the

sense that they were written by a doctor after examining a patient and for the

treatment of a medical condition, i.e., a painful tooth abscess, that does not address


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the concern in this case. The evidence adduced at the hearing would allow a

factfinder to reasonably conclude that the mother affirmatively misled the doctor in

order to obtain a prescription for narcotic pain reliever, the use of which may have

subjected her unborn child to harm.

      Finally, the evidence raised another significant omission for which there is

no evidence of an excuse. The mother refused to work toward completion of her

family service plan despite knowing that her ability to visit with A.S. depended on

her doing so and that failure to do so could result in termination of her parental

rights. By refusing to work on the family service plan services, she deprived A.S.

of an opportunity to bond with her and subjected her to the risk of termination of

her mother’s parental rights. This is not a case of “a parent’s imperfect compliance

with the plan.” In re S.M.R., No. 12-0968, 2014 WL 2535986, at *7 (Tex. June 6,

2014). The mother did not “fall short of strict compliance with a family-service

plan’s requirements,” she simply refused to work any services at all. See id. Her

only excuse for this omission was that she believed she did nothing wrong by

taking hydrocodone.

      Viewing all the evidence in the light most favorable to the judgment, we

conclude that a factfinder could have formed a firm belief or conviction that

termination of the mother’s parental rights was in A.S.’s best interest. See TEX.

FAM. CODE ANN. § 161.001(2); J.F.C., 96 S.W.3d at 265–66. Viewing the same


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evidence in a neutral light, the disputed evidence is not so significant as to prevent

a factfinder from forming a firm belief or conviction that termination of the

mother’s parental rights was in A.S.’s best interest. See TEX. FAM. CODE ANN.

§ 161.001(2); J.F.C., 96 S.W.3d at 265–66. Accordingly, we hold that the evidence

is legally and factually sufficient to support the trial court’s finding that

termination of the mother’s parental rights was in A.S.’s best interest. We overrule

the mother’s fourth issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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