Affirmed and Opinion Filed February 13, 2015




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01277-CV


                                IN THE INTEREST OF F.A.B.


                      On Appeal from the 304th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. 11-00539-W

                             MEMORANDUM OPINION
                         Before Justices Bridges, Lang-Miers, and Myers
                                   Opinion by Justice Bridges
       Mother appeals the termination of her parental rights. In a single issue, Mother argues

the evidence is legally and factually insufficient to support the jury’s finding that termination of

her parental rights is in the best interest of her child, F.A.B. We affirm the trial court’s

judgment.

       Mother began using crystal methamphetamine when she was twenty-one years old, and

“[t]hat continued for a number of months, somewhat daily.” Mother met F.A.B.’s father, J.B.,

and Mother stopped using drugs when she found out she was pregnant with F.A.B. After F.A.B.

was born in April 2006, Mother took care of F.A.B. and two of J.B.’s other children. A friend of

Mother’s showed up “out of nowhere” one day and brought methamphetamine, and Mother

began using drugs again.
         On March 8, 2011, the Texas Department of Family and Protective Services (the

Department) received a referral alleging neglectful supervision of F.A.B. by Mother and J.B.

The report stated Mother was brought to Parkland emergency psychiatric hospital due to her

“disorganized and psychiatric behaviors which were placing [F.A.B.] at risk of harm.” On April

12, 2011, Mother admitted in an interview that she used methamphetamine with J.B. in the

presence of F.A.B. F.A.B. was placed in the care of her maternal grandparents and, later, a

foster parent, C.B.

         Mother successfully completed her required services, and the trial court ordered that

F.A.B. be returned to Mother at the earlier of the end of school or June 8, 2012. On June 29,

2012, the trial court signed an order appointing Mother F.A.B.’s permanent managing

conservator, terminating J.B.’s parental rights, and enjoining J.B. from having any contact with

F.A.B.

         On March 20, 2013, Irving police officer Benny Bazely stopped Mother as part of a

traffic stop.   Mother’s passenger in the car was J.B.        During the stop, Bazely found

methamphetamine in Mother’s pocket, and he arrested her on a charge of possession of

methamphetamine of less than one gram. J.B. was arrested on an outstanding felony warrant. At

Mother’s request, police contacted a CPS worker to pick up F.A.B. from school.

         On March 21, 2013, the Department filed a motion seeking to have the Department

appointed F.A.B.’s managing conservator and to terminate Mother’s parental rights. The trial

court appointed the Department as F.A.B.’s temporary managing conservator. In a subsequent

order, the trial court required Mother to participate in psychological evaluation; counseling,

including domestic violence treatment; drug/alcohol assessment; and random drug and alcohol

urinalysis. The order also provided for one hour of visitation with F.A.B. after a therapist




                                              –2–
recommended visitation.      The injunction prohibiting contact between F.A.B. and J.B. was

continued.

         Mother said she “ha[d] a job and she want[ed] to pay for her own providers” for services

mandated by the trial court’s order. Mother provided the Department one document purporting

to show she had seen an individual counselor, but the document said “x-number of sessions” and

there were “a lot of places that should have been filled in that there was nothing there.” Mother

did not provide a phone number for her individual counselor. Mother provided nothing to show

she had submitted to a psychological evaluation, undergone domestic counseling, attended a drug

and alcohol assessment, or received drug treatment. Although F.A.B.’s therapist recommended

visitation with Mother and Mother could have visited more than once, Mother visited F.A.B.

only once.

         At trial, Mother admitted she was arrested on March 20, 2013, and J.B. was in the front

passenger seat of her car at the time. Mother testified J.B. had been staying with her “for a few

days” at the time of her arrest. Mother admitted that, after she had gotten F.A.B. back the first

time, J.B. “came back” and Mother started using drugs again. Mother continued using drugs

after “the CPS case was reopened.” However, Mother testified, she stopped using “alcohol and

illegal substances or mind-altering substances” on November 21, 2013. Mother testified she

went to Mexico and stayed from December 2013 to February 2014. In Mexico, Mother saw a

psychiatrist and a neurologist and was prescribed medications which she continued to take when

she returned to the United States. Mother testified she worked between thirty and thirty-nine

hours per week at Jackson’s Home and Gardens, and she had worked there approximately three

months at the time of trial. Mother testified she planned to move into her mother’s house with

F.A.B.




                                               –3–
        The jury found that Mother’s parental rights to F.A.B. should be terminated and that

termination was in F.A.B.’s best interest. On September 18, 2014, the trial court signed an order

terminating Mother’s parental rights. This appeal followed.

        In a single issue, Mother argues the evidence is legally and factually insufficient to

support the jury’s finding that termination of her parental rights is in the best interest of F.A.B.

Specifically, Mother argues that, based on the entire record, a reasonable fact finder could not

form a firm conviction or belief that termination of Mother’s parental rights was in F.A.B.’s best

interest.

        A trial court may terminate the parent-child relationship of the fact finder determines (1)

a parent committed one or more of the enumerated statutory acts in section 161.001 of the family

code and (2) termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001

(West 2014). Because the termination of parental rights implicates fundamental interests, a

higher standard of proof – clear and convincing evidence – is required at trial. In re A.B., 437

S.W.3d 498, 502 (Tex. 2014). A heightened standard of appellate review in parental termination

cases is similarly warranted. Id. In a legal sufficiency review, we examine the evidence in the

light most favorable to the finding of best interest, assuming the factfinder resolved disputed

facts in favor of the finding and disregarded all evidence that a reasonable factfinder could have

disbelieved or found to have been incredible. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

        A proper factual sufficiency review requires the court of appeals to 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., 437 S.W.3d at 502. “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,

then the evidence is factually insufficient.” Id. at 503 (quoting In re J.F.C., 96 S.W.3d at 266).

                                                –4–
And in making this determination, the reviewing court must undertake an exacting review of the

entire record with a healthy regard for the constitutional interests at stake. Id. However, while

parental rights are of a constitutional magnitude, they are not absolute. Id. Consequently,

despite the heightened standard of review, the court of appeals must nevertheless still provide

due deference to the decisions of the factfinder who, having full opportunity to observe witness

testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses.

Id.

       A judicial determination of the best interest of a child is not dependent upon, or

equivalent to, a finding that the child has been harmed by abuse or neglect or is in danger of such

harm. In re D.W., 445 S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied). Rather, “best

interest” is a term of art encompassing a much broader, facts-and-circumstances based evaluation

that is accorded significant discretion. In re Lee, 411 S.W.3d 445, 460 (Tex. 2013) (orig.

proceeding) (plurality op.); In re D.W., 445 S.W.3d at 925. In reviewing a jury’s best interest

finding, we consider several nonexclusive factors, including (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 person seeking custody;

(5) the programs available to assist the person seeking custody in promoting the best interest of

the child; (6) plans for the child by the person seeking custody; (7) the stability of the home or

proposed placement; (8) the acts or omissions of the parent that may indicate the parent-child

relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

       These factors are not exhaustive. In re D.W., 445 S.W.3d at 925. Some of the listed

factors may be inapplicable to a case and other factors not on the list may also be considered

when appropriate. Id. The absence of evidence about some of the factors would not preclude a

                                                –5–
fact finder from reasonably forming a strong conviction or belief that termination is in the best

interest of the child, particularly if the evidence was undisputed that the parental relationship

endangered the safety of the child. Id. On the other hand, the presence of scant evidence

relevant to each factor will not support such a finding. Id. Evidence of one of the predicate acts

for termination under section 161.001(1) may also be relevant to determining the best interest of

the child. Id.

       While there is a strong presumption that a child’s best interest is served by maintaining

the parent-child relationship, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing

TEX. FAM. CODE ANN. § 153.131(b) (West 2014)), the prompt and permanent placement of the

child in a safe environment is also presumed to be in the child’s best interest. TEX. FAM. CODE

ANN. § 263.307(a) (West 2014). The statutory factors to be considered in determining the best

interest of the child are (1) the child’s age and physical and mental vulnerabilities; (2) the

frequency and nature of out-of-home placements; (3) the magnitude, frequency, and

circumstances of the harm to the child; (4) whether the child has been the victim of repeated

harm after the initial report and intervention by the Department or other agency; (5) whether the

child is fearful of living in or returning to the child’s home; (6) the results of psychiatric,

psychological, or developmental evaluations of the child, the child’s parents, or other family

members, or others who have access to the child’s home; (7) whether there is a history of abusive

or assaultive conduct by the child’s family or others who have access to the child’s home; (8)

whether there is a history of substance abuse by the child’s family or others who have access to

the child’s home; (9) whether the perpetrator of the harm is identified; (10) the willingness and

ability of the child’s family to seek out, accept, and complete counseling services and to

cooperate with and facilitate an agency’s close supervision; (11) the willingness and ability of

the child’s family to effect positive environmental and personal changes within a reasonable

                                               –6–
period of time; (12) whether the child’s family demonstrates adequate parenting skills; and (13)

whether an adequate social support system consisting of an extended family and friends is

available to the child. See id. § 263.307(b).

       In answering the best interest questions in the jury charge, the jury was instructed to

consider both the statutory and Holley factors. On appeal, Mother focuses her sufficiency

argument solely on five of the Holley factors. However, because the record contains relevant

evidence regarding the remaining factors, we will consider them in our analysis.

       The first Holley factor is the desire of the child. Here, Mother admitted F.A.B. said “at

the last visit” that she wanted to live with her foster mother, C.B. However, Mother testified

F.A.B. made that statement “After 13 months without seeing her.” Lola McGee, F.A.B.’s

counselor, testified she had counseled F.A.B. since October 2011. McGee testified F.A.B. was a

“happy child” when she had lived with C.B. the first time, but she experienced a “gradual

change” after she was returned to Mother. McGee testified F.A.B. was “grieving the separation

from her foster mother and wanted to be placed back with C.B. “about two months after being

with her mother.” When F.A.B. was removed from Mother the second time, F.A.B. seemed to

be “a little bit more mature than any average child her age.” After the second removal, F.A.B.

was anxious and having nightmares. F.A.B. was fearful that someone was going to take her

away from C.B. F.A.B. was “very concerned and worried about her mother. But at the same

time she didn’t want to live with her. She just wanted to make sure she was okay.” McGee

testified F.A.B. consistently stated since July 2012 that she wanted to be with her foster mother,

C.B. We conclude this factor weighs in favor of termination of Mother’s parental rights.

       The second and fourth Holley factors are related. The second factor considers the child’s

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

abilities of the person seeking custody. The need for stability and permanence is an important

                                                –7–
consideration for a child’s present and future physical and emotional needs. In re D.W., 445

S.W.3d at 926. Mother argues her employment and plan to move in with her supportive mother

indicated F.A.B.’s physical and emotional needs would be met now and in the future.

       Robin Smith, F.A.B.’s Court Appointed Special Advocate, testified she picked up F.A.B.

from school on the day Mother was arrested. F.A.B. said J.B. had been living with F.A.B. and

Mother. Smith told F.A.B. Mother had “made a bad decision, and [F.A.B.] came just really

unglued.” F.A.B. was “very angry and very sad” about Mother.

       F.A.B. was previously removed from Mother’s custody for more than a year before being

returned to Mother’s care in June 2012. The second removal came after Mother was living with

J.B. in violation of a court order and was arrested for drug possession. Mother admitted using

drugs after the second removal. Following the second removal, Mother attended only one visit

with F.A.B. and failed to complete any other court-ordered services. Significantly, Mother had

completed all required services following the first removal, and F.A.B. was returned to her.

Thus, Mother knew what actions were required of her to obtain F.A.B.’s return, but Mother took

no such action following the second removal.         Conduct that subjects a child to a life of

uncertainty and instability endangers the child’s physical and emotional well-being. Id. at 928.

Further, the jury could infer from Mother’s past conduct endangering F.A.B.’s welfare that

similar conduct would recur if F.A.B. was returned to her care. Id. We conclude these two

factors weigh in favor of termination of Mother’s parental rights.

       The third Holley factor considers the current and future emotional and physical danger to

the child. As discussed, Mother began using drugs again and allowed J.B. to move back in with

her and F.A.B. when a court order prohibited contact between J.B. and F.A.B. Mother testified

she had been sober since November 21, 2013. However, Mother failed to perform court-ordered

services following the second removal, including a psychological evaluation, a drug and alcohol

                                               –8–
assessment, and drug treatment. We conclude this factor weighs in favor of termination of

Mother’s parental rights.

       We consider the fourth Holley factor, the parental abilities of the person seeking custody,

and the seventh Holley factor, the stability of the home or proposed placement, together. As

already discussed, Mother visited F.A.B. only once following the second removal, and Mother

failed to complete court-ordered services. F.A.B. was twice removed from Mother, and Mother

did almost nothing following the second removal to demonstrate a commitment to improving her

parenting abilities or providing a stable home for F.A.B. In contrast, C.B. planned to adopt

F.A.B. if Mother’s parental rights were terminated, and the testimony before the jury showed

C.B. could and did provide F.A.B. with the stable environment she needed. We conclude these

factors weigh in favor of termination of Mother’s parental rights.

       Mother does not challenge the sufficiency of the evidence to establish the other Holley

factors weighed in favor of the termination of her parental rights. We recognize that termination

should not be used as a way to reallocate a child to “better” or more prosperous parents. Id. at

932. In this case, however, the record as a whole establishes that Mother has continued to make

choices that do not put F.A.B.’s safety and welfare first. Id. We conclude the jury could have

reasonably determined that Mother could not reliably provide for F.A.B.’s emotional and

physical needs and posed a potential danger to F.A.B.’s emotional and physical well-being. The

jury also could have reasonably found that Mother’s history of instability overshadowed and cast

doubt on her ability to consistently use good parenting skills. Id. Considering all the Holley and

statutory best interest factors and the record as a whole, we conclude clear and convincing

evidence supports the jury’s findings that termination of Mother’s parental rights was in F.A.B.’s

best interest. Accordingly, we resolve Mother’s sole issue against her.




                                               –9–
      We affirm the trial court’s judgment.




141277F.P05                                      /David L. Bridges/
                                                 DAVID L. BRIDGES
                                                 JUSTICE




                                              –10–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF F.A.B.                            On Appeal from the 304th Judicial District
                                                     Court, Dallas County, Texas
No. 05-14-01277-CV                                   Trial Court Cause No. 11-00539-W.
                                                     Opinion delivered by Justice Bridges.
                                                     Justices Lang-Miers and Myers
                                                     participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.


Judgment entered this 13th day of February, 2015.




                                              –11–
