                             COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                   NO. 02-13-00254-CV


IN THE INTEREST OF M.P., A.P.
AND T.P., CHILDREN


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            FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                             MEMORANDUM OPINION1

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      Appellant K.B. (Father) appeals the trial court’s order terminating his

parental rights to his children, M.P., A.P., and T.P. We will affirm.

      M.P. was born in March 2000, A.P. was born in June 2001, and T.P. was

born in June 2002. Their mother is J.B. (Mother), Father’s wife.

      In May 2012, Appellee Texas Department of Family and Protective

Services (TDFPS) initiated an investigation involving the children after it received

referrals    that   Father   and     Mother    were    using   drugs—marijuana   and

      1
       See Tex. R. App. P. 47.4.
methamphetamine—and that there was a history of domestic violence occurring

in the household. Mother told the investigator that she was arrested in March

2012 for possessing methamphetamine and that she blamed Father for the arrest

because he had wanted the drugs for his birthday. When confronted with the

results of a drug test, Mother admitted that she had recently used

methamphetamine with Father. Mother also told the investigator that Father had

broken her shoulder during an act of domestic violence in 2010 and that she had

a protective order entered against him. Father admitted that he had smoked

marijuana   in   March   2012,   but   he   claimed   that   he   had   not   used

methamphetamine for five or six years and that his drug test was positive

because he had been working with pool chemicals. TDFPS found reason to

believe neglectful supervision of the children by both Father and Mother, due to

the evidence of substance abuse, but it did not remove the children. Instead, it

offered Mother and Father various family-based safety services.

      TDFPS initiated another investigation several months later, in early August

2012, after law enforcement authorities executed a search warrant for narcotics

at Mother and Father’s residence. Officers found several baggies of marijuana

and a device used to extract THC from marijuana, and a TDFPS investigator who

arrived at the house after the search observed ―a lot‖ of bongs. Father had left

the house through a rear exit when the police arrived—to avoid being arrested for

violating the protective order—and Mother expressed frustration that she was

―getting in trouble [because of Father] again.‖ Mother told the investigator that

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she began using methamphetamines when she was twenty-one years old (she

was born in 1978), that Father had introduced her to the drug (he was born in

1977), that she had last used it on July 31, 2012, and that she had been the

victim of physical and verbal domestic violence—caused by Father—for the last

twelve years.     TDFPS removed the children and found reason to believe

neglectful supervision of the children by Mother and Father.

      On August 2, 2012, TDFPS filed its petition for protection, conservatorship,

and termination in suit affecting the parent-child relationship. Father and Mother

each had a service plan, but neither completed it, and Father admitted using

methamphetamines or marijuana on a number of occasions during the pendency

of the suit. After a final bench trial in July 2013, the trial court terminated Father’s

parental rights to the children, finding by clear and convincing evidence (1) that

he had knowingly placed or knowingly allowed the children to remain in

conditions or surroundings that endangered their physical or emotional well-

being; (2) that he had engaged in conduct, or knowingly placed the children with

persons who engaged in conduct, that endangered the children’s physical or

emotional well-being; and (3) that termination of his parental rights to the children

is in the children’s best interests.2

      In a single issue, Father argues that the evidence is legally and factually

insufficient to support the trial court’s best interest finding because while the

      2
       The trial court made similar findings as to Mother and terminated her
parental rights to the children. Mother did not appeal.

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children ―thrived in the family home‖—they were good students and had no

history of disciplinary problems—their ―lives took a turn for the worse‖ after being

removed from the home because, among other things, their grades suffered and

they experienced disciplinary problems.

      Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. § 161.001 (West Supp. 2013), § 161.206(a)

(West 2008); In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). 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 2008); E.N.C., 384 S.W.3d at 802.

      In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that termination of the parent-child

relationship would be in the best interest of the child. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005).     In reviewing the evidence for factual sufficiency, we

determine whether, on the entire record, a factfinder could reasonably form a firm

conviction or belief that termination of the parent-child relationship would be in

the best interest of the child.   Tex. Fam. Code Ann. § 161.001(2); see In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

      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). Nonexclusive

factors that the trier of fact in a termination case may use in determining the best

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interest of the child include 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 abilities of the individuals seeking

custody, the programs available to assist these individuals to promote the best

interest of the child, the stability of the home or proposed placement, and the

acts or omissions of the parent which may indicate that the existing parent-child

relationship is not a proper one. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976) (citations omitted); see E.N.C., 384 S.W.3d at 807.

      Father is correct that the children experienced some difficulty transitioning

to life outside of the family home. Early in the case, they were placed with their

paternal grandmother, a licensed foster parent. TDFPS subsequently removed

the oldest child from that placement because of conflicts between her and the

grandmother and because of ―ongoing issues between her and her brother

arguing all the time.‖ At the time of trial, the oldest child was in respite care and

had a marijuana case and an assault case pending.3 The other two children

were also in respite care. Father testified that since the removal, the children’s

grades had fallen and that he had observed some negative changes in their

behavior. The grandmother notified TDFPS before trial that she would not be

considered a long-term placement for the children, and a CASA worker testified

that the two younger children preferred to be returned to their parents.


      3
       Respite care provides a temporary placement for a child.

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      Although this evidence reveals that the children struggled to a certain

extent after being removed from the home, it is only part of the evidence that the

trial court could have considered in resolving the best interest inquiry.      The

relevant evidence additionally shows that Father has a history of domestic

violence—he has convictions for violating a protective order, assault-bodily injury,

and assault by contact.4 Father broke Mother’s shoulder during a confrontation

with her in 2010, which the oldest child witnessed, and in another incident with

Mother, he destroyed all of the windows in their trailer.          Mother told an

investigator that she had been the victim of physical and verbal domestic

violence for the past twelve years.

      The trial court also heard a substantial amount of testimony about a

consideration that undoubtedly weighed heavily in favor of the best interest

finding: Father’s sustained illegal drug use. Father tested positive for drugs

when TDFPS first became involved with the family in May 2012; he told the

caseworker that he had been using drugs before the police executed the search

warrant in early August 2012; and he used drugs (methamphetamine or

marijuana) during the pendency of the case—in October 2012, November 2012,

December 2012, February 2013, June 2013, and as recently as a week or two

before the final trial. Father admitted that he had been addicted to drugs for ―20

plus years‖ and that he smoked marijuana in front of the children, and the record


      4
       Father also has a conviction for burglary of a building.

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seemed to indicate that Father had contributed to Mother’s problems with illegal

drugs.     Although he attended several drug counseling sessions before trial,

Father had not fully taken advantage of the services provided to him during the

case. The record thus demonstrates that Father has engaged in a continuing

course of illegal drug use and that he has made little attempt to alter that

conduct.

      The caseworker opined that a parent has to be drug free to appropriately

care for and supervise his or her children but that Father had not demonstrated

that he could do that. Along those lines, the caseworker concluded that Father

could not meet the emotional and physical needs of the children because he had

not ―remained sober to be able to properly supervise his children and care for

them.‖ She consequently opined that it was in the best interest of the children for

Father’s parental rights to be terminated. Indeed, although it was apparent that

he loves his children, Father acknowledged that he could not successfully parent

the children while he was addicted to methamphetamine.

      Father argues that there was no or insufficient evidence ―that the open use

of marijuana by the parents and their occasional surreptitious use of

methamphetamines was in any way deleterious to the children’s well being,‖ but

it is well established that illegal drug use by a parent supports a conclusion that

the child’s surroundings endanger his or her physical or emotional well-being and

that such evidence, which supports the trial court’s subsection 161.001(1)(D) and

(E) findings, can be probative of the trial court’s best interest finding. See In re

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C.H., 89 S.W.3d 17, 28 (Tex. 2002); In re R.A.E., No. 02-10-00121-CV, 2011 WL

582723, at *8 (Tex. App.—Fort Worth Feb. 17, 2011, no pet.) (mem. op.).

      Accordingly, giving due consideration to evidence that the trial court could

have reasonably found to be clear and convincing, we hold that the trial court

could have reasonably formed a firm belief or conviction that termination of

Father’s parental rights to the children is in the children’s best interest. The

evidence is thus legally and factually sufficient to support the trial court’s section

161.001(2) best interest finding. See Tex. Fam. Code Ann. § 161.001(2). We

overrule Father’s only issue and affirm the trial court’s judgment.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DELIVERED: January 9, 2014




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