                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-18-00128-CV


IN THE INTEREST OF G.M.,
A CHILD


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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 323-104707-17

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                         MEMORANDUM OPINION1

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                                  I. INTRODUCTION

      This is an ultra-accelerated appeal2 in which S.G. (Mother) appeals the

termination of her parental rights to her son, Garrett,3 following a bench trial. In a


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
      3
       See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to
minors in an appeal from a judgment terminating parental rights). All children are
referred to using aliases.
single issue, Mother argues that the evidence is factually insufficient to support

the trial court’s best-interest finding. See Tex. Fam. Code Ann. § 161.001(b)(2)

(West Supp. 2017). We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Mother’s drug addiction over the years culminated in the removal of her

two children. Although Mother took steps to improve her life during the final three

months that this case was pending in the trial court—including obtaining safe

housing with her mother, obtaining employment, and ending her relationship with

Father—her recent positive changes did not overcome the fact that she had

continued to use drugs throughout the pendency of the case. Because Mother

challenges the sufficiency of the evidence to support the trial court’s best-interest

finding, we set forth a summary of the evidence.

                         A. Removal of Older Son Kurt

      In August 2015, the Department of Family and Protective Services (the

Department) received an allegation of neglectful supervision by Mother of six-

year-old Kurt. The report indicated that Mother suffered from a heroin addiction

and that she had used heroin around Kurt. Mother once passed out on the porch

of her apartment for more than an hour. While Mother was unconscious, Kurt

was left unsupervised in the apartment. The report further indicated that Mother

often allowed Kurt to stay up unsupervised for more than twenty-four hours at a

time. The report noted that Kurt was unable to speak properly and did not attend

school.

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      Mother tested positive for opiates. She admitted to leaving drugs and drug

paraphernalia within Kurt’s reach and agreed that Kurt was unsupervised

whenever she passed out from her heroin use. The Department removed Kurt

from Mother’s care and placed him in foster care, pending the completion of a

home study on maternal Great-Grandparents’ home. Great-Grandparents were

appointed managing conservators of Kurt in a suit affecting the parent-child

relationship in May 2016.

                              B. Removal of Garrett

      Mother gave birth to Garrett in February 2017.         Although Garrett’s

meconium tested positive for amphetamine, both Garrett and Mother tested

negative.      The following month, in March 2017, Mother tested positive for

methamphetamine. The Department placed Garrett with Great-Grandmother and

allowed supervised contact between Mother and Garrett as part of a parent-child

safety plan.

      Four days later, the Department received a referral alleging neglectful

supervision and physical abuse of Garrett by Mother. Mother’s sister had found

methamphetamine in Mother’s belongings, and Great-Grandmother had told

Mother that she must leave Great-Grandmother’s home immediately. A physical

altercation ensued; Mother pushed her sister, bit her mother, and attempted to

“rip” Garrett out of Great-Grandmother’s arms.     Great-Grandmother secured

Garrett and Kurt in a bedroom and called the police. The police arrested Mother

on outstanding warrants. Mother was charged with assault causing bodily injury

                                        3
to a family member.      The Department subsequently filed suit for temporary

managing conservatorship of Garrett.

                        C. Domestic Violence Concerns

      Mother’s criminal history includes two counts of assault bodily injury to a

family member in June 2016—for which Mother was placed on community

supervision for twenty-four months. Mother admitted to conservatorship worker

Amber Jefferson that she had fought with Father and that they had hit each

other.4

                   D. Mother’s Service Plan and Compliance

      Jefferson developed a service plan for Mother.          It required Mother to

complete a drug and alcohol assessment and to follow any recommendations

from the assessment, including attending treatment; to refrain from criminal

activity; to submit to random drug testing; to attend individual counseling; to

attend the parenting class FOCUS for Mothers; to attend domestic violence

classes; to obtain and maintain safe and stable housing; to obtain and maintain

stable and legal employment; and to address her anger management issues with

a professional and follow all recommendations. Jefferson testified that Mother

completed the drug and alcohol assessment and inpatient drug treatment and

submitted to drug testing.      After Mother had completed her inpatient drug

      4
       At the time of the termination trial, Father was in jail on three pending
charges related to assaults on Mother in October and November 2017, and he
had prior CPS history for domestic violence involving Mother. Because Father is
not involved in this appeal, we omit further details related to the termination of his
parental rights to Garrett.
                                          4
treatment, her follow-up care required her to attend Narcotics Anonymous

meetings and Alcoholics Anonymous meetings. But Mother refused to attend

them. Mother also refused to participate in domestic violence classes.5

      Mother moved from the DFW area to Austin in November or December

2017 after a fight with Father; he had punched Mother in the face. Jefferson

arranged a CPS courtesy worker for Mother so that she could continue to work

her service plan in Austin. Nonetheless, Mother did not complete the required

services.

      While this case was pending, Mother had the opportunity to visit Garrett

one hour each week. But she attended only approximately two visits per month.

Mother’s visits evoked concern by the Department that Mother and Garrett were

not bonded.    Garrett appeared uncomfortable around Mother; she appeared

unfamiliar to him. Mother last visited Garrett on December 27, 2017.

      Two weeks prior to trial, Jefferson contacted the Austin courtesy worker.

The courtesy worker forwarded a text message conversation between himself

and Mother. When the courtesy worker had texted Mother that she needed to

start a parenting class, Mother had responded, “[W]ell, they’re terminating my

rights so what is the point?”



      5
      The record reflects that Mother and Father had continued to engage in
domestic violence while the case was pending as reflected by scratches on their
arms and blood on their clothing when they showed up to visits. Additionally,
Mother was arrested for assaulting Father in late September 2017, but the
charges were dropped.

                                        5
      Jefferson testified that at the time of the termination trial, Mother and

Father were no longer in a relationship, but Jefferson did not know when that

relationship had ended. Mother was living with her mother in Austin; the courtesy

worker had no concerns about the home. Mother was employed at Applebee’s in

Austin.

                   E. Garrett’s Status and Planned Adoption

      The permanency reports and the child’s service plan review submitted to

the trial court describes Garrett as “a happy and healthy baby” who “enjoys being

cuddled” and appears to be bonded with Great-Grandmother.

      Jefferson testified that Garrett’s prognosis after birth was precarious;

doctors anticipated that Garrett would have disabilities and would not be able to

progress developmentally at a normal rate due to his in vitro exposure to illegal

drugs. The child’s service plan review noted that Garrett’s motor skills were not

developing on track and that his right arm lacked muscle strength. A neurologist

opined that Garrett might have mild cerebral palsy but that a diagnosis could not

be made until he was older. Despite those setbacks, Jefferson testified that

Garrett had far exceeded the doctors’ expectations and was thriving in Great-

Grandparents’ home. Great-Grandparents had coordinated with Early Childhood

Intervention to provide Garrett with occupational and physical therapy designed

to develop his motor skills.

      Jefferson said that Great-Grandparents met Garrett’s physical, emotional,

developmental, educational, and financial needs and provided him with a safe

                                       6
and loving home. Jefferson opined that Great-Grandparents would be able to

meet Garrett’s needs in the future. Thus, the Department’s plan was for Great-

Grandparents to adopt Garrett.

      F. The Department’s Concerns and Recommendations from the
                   Department and Garrett’s Ad Litem

      Jefferson expressed concerns about Mother’s continued drug use

throughout the pendency of the case. Mother admitted using drugs in October

2017, and she tested positive for cocaine and methamphetamine in February

2018.6 Jefferson also expressed concern about Mother’s neglect of Garrett, her

inability to provide Garrett with a stable home, and her failure to address the

Department’s concerns about her pattern of domestic violence.

      The Department requested termination of Mother’s parental rights to

Garrett based on multiple grounds under family code section 161.001(b)(1),

including endangering environment and endangering conduct. Jefferson testified

that it was in Garrett’s best interest for Mother’s parental rights to be terminated.

Garrett’s attorney ad litem also opined that it was in Garrett’s best interest for the

trial court to terminate Mother’s parental rights.




      6
       Mother argues in her brief that the year was not provided through
testimony. Because Jefferson testified that Mother had “recently tested positive
for cocaine and methamphetamines in February,” because the case was not
opened until March 2017, and because the termination trial occurred on March
16, 2018, a rational factfinder could conclude that the recent test occurred in
February 2018.

                                          7
                                     G. Outcome

      After hearing the above testimony and reviewing the evidence admitted at

trial, the trial court found by clear and convincing evidence that Mother had

violated subsections (D), (E), (N), (O), and (R) of section 161.001(b)(1) and that

termination of her parental rights was in Garrett’s best interest.           Mother

perfected this appeal from the trial court’s termination order.

   III. FACTUALLY SUFFICIENT EVIDENCE SUPPORTS THE BEST-INTEREST FINDING

      In her sole issue, Mother argues that the evidence is factually insufficient

to support the trial court’s best-interest finding.

                  A. Burden of Proof and Standard of Review

      In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West Supp. 2017); Holick v.

Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to

sever permanently the relationship between a parent and a child, it must first

observe fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex.

2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–

92 (1982)). We strictly scrutinize termination proceedings and strictly construe

involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d

796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.



                                            8
      Termination decisions must be supported by clear and convincing

evidence. See Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a); E.N.C., 384

S.W.3d at 802. Due process demands this heightened standard because “[a]

parental rights termination proceeding encumbers a value ‘far more precious

than any property right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S.

at 758–59, 102 S. Ct. at 1397); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see

also E.N.C., 384 S.W.3d at 802.        Evidence is clear and convincing if it “will

produce in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West

2014); E.N.C., 384 S.W.3d at 802.

      For a trial court to terminate a parent-child relationship, the Department

must establish by clear and convincing evidence that the parent’s actions satisfy

one ground listed in family code section 161.001(b)(1) and that termination is in

the best interest of the child. Tex. Fam. Code Ann. § 161.001(b); E.N.C., 384

S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must

be established; 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); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—

Fort Worth 2012, no pet.).

      We are required to perform “an exacting review of the entire record” in

determining whether the evidence is factually sufficient to support the termination

of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In

                                          9
reviewing the evidence for factual sufficiency, we give due deference to the

factfinder’s findings and do not supplant the judgment with our own.          In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that the

parent violated one of the provisions of section 161.001(b)(1) and that

termination of the parent-child relationship would be in the best interest of the

child. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); In re C.H., 89 S.W.3d 17,

28 (Tex. 2002). 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 the truth of its finding, then the evidence is factually insufficient.

H.R.M., 209 S.W.3d at 108.

                             B. Best-Interest Factors

      There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). We review

the entire record to determine the child’s best interest. In re E.C.R., 402 S.W.3d

239, 250 (Tex. 2013).      The same evidence may be probative of both the

subsection (1) ground and best interest.      Id. at 249; C.H., 89 S.W.3d at 28.

Nonexclusive factors that the trier of fact in a termination case may also use in

determining the best interest of the child include the following: the desires of the

child; the emotional and physical needs of the child now and in the future; the

emotional and physical danger to the child now and in the future; the parental

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abilities of the individuals seeking custody; the programs available to assist these

individuals to promote the best interest of the child; the plans for the child by

these individuals or by the agency seeking custody; the stability of the home or

proposed placement; the acts or omissions of the parent which may indicate that

the existing parent-child relationship is not a proper one; and any excuse for the

acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest

finding, “we consider, among other evidence, the Holley factors”); E.N.C., 384

S.W.3d at 807. These factors are not exhaustive, and some listed factors may

be inapplicable to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed

evidence of just one factor may be sufficient in a particular case to support a

finding that termination is in the best interest of the child. Id. On the other hand,

the presence of scant evidence relevant to each factor will not support such a

finding. Id.

               C. Holley Factors Weigh in Favor of Termination

      With regard to the desires of the child, Garrett was thirteen months old at

the time of the termination trial and therefore did not testify.        The record,

however, demonstrates that Garrett was bonded to Great-Grandmother; that he

was well-cared for by Great-Grandparents; and that he was unfamiliar with

Mother, who attended only about half of the visits she was allowed each month

and had not visited Garrett during the three months prior to trial. The trial court

was entitled to find that this factor weighed in favor of terminating Mother’s

                                         11
parental rights to Garrett. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—

Houston [14th Dist.] 2014, no pet.) (stating that when a child is too young to

express his desires, the factfinder may consider whether the child has bonded

with his current caregiver, is well-cared for, and whether the child has spent

minimal time with the parent).

      As for the emotional and physical needs of Garrett now and in the future,

his basic needs include food, shelter, and clothing; routine medical and dental

care; a safe, stimulating, and nurturing home environment; and friendships and

recreational activities appropriate to his age. Although Mother obtained safe and

appropriate housing by moving to Austin during the last three months that the

case was pending, she did not demonstrate her ability to consistently provide a

safe home for Garrett or to consistently provide for his emotional needs; she

stopped visiting Garrett.    The trial court was entitled to find that this factor

weighed in favor of terminating Mother’s parental rights to Garrett.

      With regard to the emotional and physical danger to Garrett now and in the

future, the record reflects that Mother’s history of drug use poses a significant

risk of harm to Garrett. Mother used drugs during her pregnancy with Garrett

and demonstrated an inability to supervise Garrett while under the influence of

drugs. Mother’s history of domestic violence with Father poses another risk of

emotional and physical danger to Garrett. The trial court was entitled to find that

this factor weighed in favor of terminating Mother’s parental rights to Garrett.



                                         12
      With regard to Mother’s parenting abilities, the record demonstrates

Mother’s history of prioritizing her drug use over parenting her children and that

she struggles to manager her anger. The trial court was entitled to find that this

factor weighed in favor of terminating Mother’s parental rights to Garrett.

      The record shows that Mother did not complete her CPS services.7 The

trial court was entitled to find that this factor weighed in favor of terminating

Mother’s parental rights to Garrett.

      With regard to plans for Garrett and the stability of the proposed

placement, the record reflects that Mother wanted Garrett to be returned to her

care and wanted to provide him with a drug-free, safe, and stable home free from

physical abuse and neglect. But Mother had failed to remain drug-free and had

only obtained safe housing immediately before trial. Great-Grandparents, who

were already caring for Mother’s older son, had shown the ability to provide a

safe, stable home for Garrett and planned to adopt him. The trial court was




      7
        Mother argues that we should not look at whether she completed her
services but rather should focus on whether she completed the majority of her
service plan goals. Even focusing on Mother’s service plan goals, which is not
the standard we apply, the first two service plan goals (of a total of four goals)
required Mother to demonstrate an ability to protect Garrett from any physical,
emotional, and mental abuse and neglect and to demonstrate an ability to
provide Garrett with a safe and drug-free environment. Because Mother had
failed to refrain from drug use during the case, Mother had not completed these
goals.

                                        13
entitled to find that this factor weighed in favor of terminating Mother’s parental

rights to Garrett.8

      With regard to Mother’s acts or omissions that may indicate that the

existing parent-child relationship is not a proper one, the analysis set forth

above—which details Mother’s struggle with drug use that continued even

through the month before the termination trial, Mother’s housing instability,

Mother’s willingness to expose Garrett to domestic violence, as well as Mother’s

failure to take advantage of the services that she was offered—reveals that the

existing parent-child relationship between Mother and Garrett is not a proper

parent-child relationship.   The trial court was entitled to find that this factor

weighed in favor of terminating Mother’s parental rights to Garrett.

      As for any excuse for Mother’s acts or omissions, Mother acknowledged

her drug use to Jefferson at different points while the case was pending and

acknowledged that she had endangered Garrett by using drugs during her

pregnancy. The trial court was entitled to find that this factor weighed in favor of

terminating Mother’s parental rights to Garrett.



      8
        To the extent that Mother argues that “[t]here was no legal justification” for
terminating Mother’s parental rights to Garrett because Mother’s parental rights
to Kurt were not terminated before appointing Great-Grandparents as his
managing conservators, the trial court must consider the best interest of each
child individually. See In re J.O.A., 283 S.W.3d 336, 340 (Tex. 2009) (affirming
order that terminated mother’s parental rights to her two youngest children and
appointed mother’s mother as managing conservator of mother’s oldest child
without terminating her parental rights to oldest child). See generally Tex. Fam.
Code Ann. § 161.001(b)(2).

                                         14
      Reviewing all the evidence with appropriate deference to the factfinder, we

hold that the trial court could have reasonably formed a firm conviction or belief

that termination of the parent-child relationship between Mother and Garrett was

in his best interest, and we therefore hold that the evidence is factually sufficient

to support the trial court’s best-interest finding.    See Tex. Fam. Code Ann.

§ 161.001(b)(2); Jordan v. Dossey, 325 S.W.3d 700, 733 (Tex. App.—Houston

[1st Dist.] 2010, pet. denied) (holding evidence factually sufficient to support the

trial court’s best-interest finding when most of the best-interest factors weighed in

favor of termination); In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth

2006, no pet.) (“A parent’s drug use, inability to provide a stable home, and

failure to comply with [a] family service plan support a finding that termination is

in the best interest of the child.”). We overrule Mother’s sole issue.

                                  IV. CONCLUSION

      Having overruled Mother’s sole issue, we affirm the trial court’s judgment

terminating her parental rights to Garrett.


                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

PANEL: WALKER, PITTMAN, and BIRDWELL, JJ.

DELIVERED: July 19, 2018




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