                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-18-00117-CV


IN THE INTEREST OF J.P. AND
J.P., CHILDREN




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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                     TRIAL COURT NO. CV16-00622

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                         MEMORANDUM OPINION1

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      Appellant M.G. (Mother) appeals the trial court’s judgment terminating her

parental rights to her children J.P. (John) and J.P. (Jackson).2 In one issue, she

contends that the evidence is legally and factually insufficient to support the trial


      1
       See Tex. R. App. P. 47.4.
      2
      We use aliases for the children and their relatives throughout this opinion.
See Tex. R. App. P. 9.8(b)(2).
court’s finding that termination of her parental rights is in the children’s best

interest. We hold that the evidence is sufficient to support termination, and we

affirm the trial court’s judgment.

                                     Background

         Mother has a long history of using illegal drugs.       She began using

methamphetamine when she was nineteen years old, and her addiction to that

drug continued through the time of the termination trial, when she was forty. She

was sober from 2000 to 2009, but she relapsed when a paramour “got [her] back

into the addiction.” She also used marijuana when she was twelve years old and

as late as 2016, and she has misused prescription medications.

         Mother also has a history of involvement by Child Protective Services

(CPS) with her children: John, Jackson, and two older children who are not

subject to this appeal. In 2012, CPS determined that Mother had neglected her

supervision of a child. In the course of Mother consummating a drug deal, one of

her children was found to be filthy while sitting in a car that had food all over its

floor.

         Mother gave birth to John in May 2010 and to Jackson in June 2013. She

conceived John with J.G. (Father) in 2009 while she was living with C.P. (Cody)

and while Cody was at work.3 According to Mother, Father came over one night


         3
      The evidence does not identify Jackson’s father. In its original petition,
the Department alleged that Cody was Jackson’s father, and Mother told the
Department that Cody was his father. A DNA test proved otherwise.

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and they “just . . . started hanging out” and had sex. Mother became pregnant

the first time she had sex with Father, and their intimate relationship continued

thereafter. She was not sure that John was Father’s son until she saw him upon

his birth and determined that he looked like Father. Father has a criminal history;

in 2015, he was convicted for committing a drug-related offense.

      In October 2015, Mother was arrested in Oklahoma for possessing

methamphetamine and drug paraphernalia, including syringes.          She pleaded

guilty to that offense, and the Oklahoma court placed her on probation. In April

2016, she tested positive for methamphetamine. She went to an inpatient drug

treatment facility in the summer of 2016, but only one week after her discharge,

she began using methamphetamine again. Soon thereafter, in August 2016, she

was arrested in Cooke County, Texas for possessing pills for which she did not

have a prescription.

      In October 2016, the Department of Family and Protective Services (the

Department) filed a petition seeking termination of Mother’s parental rights to

John and Jackson if her reunification with them could not be achieved. To the

petition, the Department attached an affidavit explaining events leading to the

filing of the petition, including that Mother had recently used methamphetamine

and that she had been arrested for possessing the pills. The Department asked

the trial court to order the removal of John and Jackson from Mother’s legal

custody.



                                        3
      After a hearing, the trial court found that allowing the children to remain in

Mother’s custody would be contrary to their welfare, authorized their removal,

and named the Department as their temporary managing conservator. The court

ordered Mother to complete several services, including a psychological

evaluation, counseling, parenting classes, and drug assessments.                The

Department filed a service plan that incorporated these services and added other

requirements. CPS arranged for weekly visits between Mother and the children.

      By Mother’s admission, at the time of the children’s removal, her life was a

“wreck.” She was using drugs, was unemployed because of her refusal to apply

for jobs, and was not primarily responsible for caring for the children. According

to her, the children were being neglected. Upon their removal, Mother urged

CPS to consider her sister’s residence as a placement, but CPS could not place

the children there because her sister tested positive for methamphetamine.

       In February 2017, after Mother failed to report to her probation officer in

Oklahoma, she tested positive for methamphetamine.             She was arrested,

resulting in her incarceration through virtually the duration of the Department’s

termination case. The Oklahoma court sentenced her to ten years’ confinement

but ordered that the sentence would be suspended upon her completion of a

regimented drug treatment program. Mother completed the program, and she

was released one week before the March 2018 termination trial.           Upon her

release, she began living with her parents, submitting employment applications to

various employers, and attending outpatient drug treatment.

                                         4
       Because of Mother’s confinement for most of the proceedings in the trial

court, she attended only a few visits with John and Jackson. Also because of the

confinement and because of choices she made before the confinement, she did

not complete requirements of her service plan.         For example, before her

confinement, she was discharged from counseling because of nonattendance.

Also before her incarceration, Mother missed visits with John and Jackson. She

completed parenting classes and started (but did not complete) a psychological

evaluation.

       In March 2018, after hearing the parties’ evidence and arguments, the trial

court granted the Department’s termination petition.       Among other findings

supporting termination, the trial court found that clear and convincing evidence

proved that termination of Mother’s parental rights is in John’s and Jackson’s

best interest. Mother brought this appeal.

                  Evidentiary Sufficiency to Prove Best Interest

       Mother contends that the evidence is legally and factually insufficient to

show that termination of her parental rights is in John’s and Jackson’s best

interest.     In a termination case, the State seeks to erase parental rights

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). Thus, “[w]hen the State seeks to sever permanently

the relationship between a parent and a child, it must first observe fundamentally

                                        5
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 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.

      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.4 Tex. Fam. Code Ann. § 161.001(b) (West Supp.

2017); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

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.

      In evaluating the evidence for legal sufficiency in parental termination

cases, we view all the evidence in the light most favorable to the termination

findings to determine whether a factfinder could reasonably form a firm belief or

conviction that the Department proved the challenged ground for termination.

In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We resolve any disputed facts in



      4
        In the summary of Mother’s argument, she states that she is “not
contesting that one or more of the grounds for termination were met” under
section 161.001(b)(1) but that it is her “position that termination was not in the
best interest of the children.”

                                          6
favor of the finding if a reasonable factfinder could and disregard all evidence

that a reasonable factfinder could have disbelieved. Id.

      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

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 of the

challenged basis for termination. Tex. Fam. Code Ann. § 161.001(b); In re C.H.,

89 S.W.3d 17, 28 (Tex. 2002).

      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 factfinder may use in determining the best 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

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,



                                         7
and any excuse for the acts or omissions of the parent. Holley v. Adams, 544

S.W.2d 367, 371–72 (Tex. 1976) (citations omitted).

      Under these factors, Mother’s addiction to illegal drugs and her long-term

drug use, including her use while this case was pending, support the trial court’s

finding that termination of her parental rights was in the children’s best interest.

See In re J.L.B., 349 S.W.3d 836, 849 (Tex. App.—Texarkana 2011, no pet.); In

re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.); In re

C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.); see also In

re K.G.-J.W., No. 01-17-00739-CV, 2018 WL 1161556, at *7 (Tex. App.—

Houston [1st Dist.] Mar. 6, 2018, pet. denied) (mem. op.) (considering a parent’s

continuing use of narcotics during the pendency of a termination case as

supporting a trial court’s best-interest finding).

      Mother conceded at trial that she has had several opportunities to break

her addiction and that she has failed to do so. Although she testified that she

was ready for sobriety because of skills that she learned at the treatment

program that she had attended while confined and although (mostly because of

her confinement) she had been sober for more than a year at the time of trial, the

trial court could have doubted her ability to maintain sobriety based on her long

history of using methamphetamine and other drugs despite her receipt of

treatment and despite a previous lengthy period of sobriety.5 See In re C.M., No.


      5
        Mother explained, “I have learned the skills and tools to live a better sober
life. And I know I have made mistakes and made bad choices, but all I’m asking
                                           8
01-15-00830-CV, 2016 WL 1054589, at *11 (Tex. App.—Houston [1st Dist.] Mar.

17, 2016, no pet.) (mem. op.) (holding that a factfinder could have reasonably

determined that a parent was unlikely to maintain sobriety when the parent had a

long history of opiate use and a counselor testified that opiate users had a high

rate of recidivism); see also In re A.M., 385 S.W.3d 74, 83 (Tex. App.—Waco

2012, pet. denied) (“Evidence of a recent improvement does not absolve a parent

of a history of irresponsible choices.”); Ray v. Burns, 832 S.W.2d 431, 435 (Tex.

App.—Waco 1992, no writ) (“Past is often prologue.”).

      The trial court could have also considered Mother’s failure to complete

services, caused in part by her confinement and occurring before her

confinement, as a factor affecting the children’s best interest. See M.R., 243

S.W.3d at 821 (“A parent’s . . . failure to comply with a family service plan

support[s] a finding that termination is in the best interest of the child.”).

      Next, Mother admitted at trial that before their removal from her legal

custody, the children were neglected. See In re J.V.B., No. 01-17-00958-CV,

2018 WL 2727732, at *9 (Tex. App.—Houston [1st Dist.] June 7, 2018, no pet. h.)

(mem. op.) (stating that evidence of a child’s neglect supports a trial court’s best-

interest finding); In re H.M.O.L., Nos. 01-17-00775-CV, 01-17-00776-CV, 2018

WL 1659981, at *18 (Tex. App.—Houston [1st Dist.] Apr. 6, 2018, pet. denied)

is for a chance. I don’t want to lose my boys.” Mother testified that she did not
learn such skills in shorter treatment programs in which she had previously
participated, such as the summer 2016 inpatient treatment. She testified that she
did not “take what [that inpatient program] offered.”

                                            9
(mem. op.) (stating that a parent’s neglect of a child is an indication of a lack of

parenting abilities).   And the trial court received evidence corroborating that

admission and showing John and Jackson’s improvement to the point of

flourishing in foster care. See In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San

Antonio 2014, no pet.) (considering in a best-interest review that a child was

neglected while in a parent’s care but “healthy, happy, and well-adjusted” after

being placed in foster care).

      Shannon Sharp, a CPS caseworker, testified that the children had

“blossomed” in their foster home, which included the foster parents, their two

biological children, John, and Jackson. Concerning Jackson, Sharp explained,

      The youngest child . . . was very behind [upon his removal]. He
      didn’t speak. He was very withdrawn. . . . [A]t the time that we
      removed, he was three. And he just didn’t seem to be on the normal
      level of a [three year old]. And since being moved into that foster
      home, he just surprises me every time I go see him.

             ....

             . . . He speaks very well.

             ....

            . . . [P]rior to moving there, he seemed to have, in my opinion,
      some fear of other adults. And since he’s been in that home, he’s
      just open and chatty even and he will speak to other adults . . . at
      school or at the store. And prior to being in that home, he never did
      anything like that.

Concerning John, Sharp testified,

      [John] has done very well, also. He’s seven now. At the time of
      removal, he was six. He was much more outgoing than his younger
      brother, but since being in the foster home, he’s learned a little bit

                                          10
      about what rules are and . . . things that he needs to be responsible
      for. He has been diagnosed with ADHD. And I think that he really
      struggled with that prior to moving into the foster home. He started
      some treatment medication, and he’s also seeing a therapist, and
      he’s doing very well.

      Jeanne Smith, a court-appointed special advocate and the children’s

guardian ad litem, similarly testified that John and Jackson were “doing great” in

foster care.      She explained that the children’s interactions with adults had

improved “tremendously” since their placement in foster care, that John was

progressing well with his education, and that both boys were receiving

appropriate medical care.

      The evidence showed a strong bond among the foster family, John, and

Jackson and a comparatively weak bond between the children and Mother. See

In re U.P., 105 S.W.3d 222, 230–31 (Tex. App.—Houston [14th Dist.] 2003, pet.

denied) (op. on reh’g) (considering a child’s bond with a foster family as a factor

supporting the child’s best interest in the termination of a father’s parental rights).

Sharp testified that John and Jackson refer to their foster mother as “mom” and

refer to Mother by her first name. According to Sharp, Mother sent only three or

four letters to the children while she was confined and was unable to visit them.

Smith testified that neither John nor Jackson ever asked her about Mother.

      When the Department’s attorney asked Mother about who should care for

John and Jackson if the trial court terminated her parental rights, she testified, “I

would like them to be with family. But if not, I would like them to go back with the

foster family.”     Mother acknowledged that the children’s foster family had

                                          11
arranged for John and Jackson to visit their older siblings. She also stated that

she had been “told that [the children] were doing very well” in foster care. Mother

acknowledged that the children are bonded with their foster family and that the

foster parents want to adopt them.

      Finally, the trial court could have reasonably determined that termination of

Mother’s parental rights to the children is in their best interest because it provides

them with stability and permanence that they would otherwise lack. See In re

B.H.R., 535 S.W.3d 114, 124 (Tex. App.—Texarkana 2017, no pet.) (stating that

“[s]tability and permanence are paramount in the upbringing of a child” and that a

factfinder may consider that “the best interest of the child may be served by

termination so that adoption may occur rather than the impermanent foster care

arrangement that would result if termination were to not occur”).6

      Mother testified that at the time of the termination trial, she was not in a

position to care for John and Jackson.         Sharp opined that Mother did not

understand the children’s mental, emotional, and physical needs on the “level

that she would need to” if the court returned the children to her care. Sharp

asked the trial court to terminate Mother’s parental rights to the children so that

they could “achieve permanency.” She explained that the foster family wanted to

adopt the children immediately and that if the trial court denied termination, the

      6
      On appeal, Mother proposes that the trial court should have denied the
Department’s termination petition while allowing the Department to maintain
managing conservatorship of the children and while leaving the children in foster
care.

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Department would not consider returning them to Mother’s custody for

approximately one year while it waited to determine if she remained sober.

Smith likewise recommended the termination of Mother’s parental rights; she

expressed her concern that if the trial court did not terminate the rights, Mother

would relapse and the “kids would have to go through another upset.”              She

added, “They’re flourishing in a stable life now.”

      For all of these reasons, considering all of the evidence under the factors

described above, we conclude that the trial court could have formed a firm belief

or conviction that termination of Mother’s parental rights is in the children’s best

interest. See Tex. Fam. Code Ann. §§ 101.007, 161.001(b)(2). We therefore

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

termination judgment, and we overrule Mother’s sole issue. See J.P.B., 180

S.W.3d at 573; C.H., 89 S.W.3d at 28.

                                    Conclusion

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

terminating her parental rights to John and to Jackson.


                                                     /s/ Wade Birdwell
                                                     WADE BIRDWELL
                                                     JUSTICE

PANEL: MEIER, GABRIEL, and BIRDWELL, JJ.

DELIVERED: August 9, 2018




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