                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-10-00114-CV


IN THE INTEREST OF B.A., A
CHILD


                                      ------------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                          MEMORANDUM OPINION1

                                      ------------

      Appellant C.W. appeals the trial court’s order terminating her parental

rights to her daughter, B.A. In a single issue, C.W. challenges the legal and

factual sufficiency of the evidence to support the trial court’s family code section

161.001(2) finding that termination of the parent-child relationship between C.W.

and B.A. is in B.A.’s best interest. We will affirm.

      B.A. was born in November 2008. She was approximately sixteen months

old at the time of the termination trial in March 2010. B.A.’s mother is twenty-

four-year-old C.W. D.A. is B.A.’s alleged biological father.
      1
       See Tex. R. App. P. 47.4.
        C.W. began using cocaine and ecstasy, her drugs of choice, at age

nineteen or twenty.2 She tested positive for cocaine and opiates when she was

about five months’ pregnant with B.A. and admitted at trial that she used cocaine

―[p]robably daily‖ at that time. C.W. knew she was pregnant with B.A. when she

used illegal drugs but did so ―[b]ecause [she] really didn’t want [her] baby at first.‖

C.W. claimed she quit using illegal drugs about two to three months before B.A.

was born.

        B.A. tested positive for cocaine when she was born. CPS opened a case

for her, and she was voluntarily placed with C.W.’s uncle’s wife, C.A. At some

point thereafter, C.A. turned B.A.’s care over to C.W.’s friend, L.S. In October

2009, B.A. was placed with her paternal grandmother, S.A., where she remained

until trial.

        TDFPS developed a service plan for C.W., which included a psychological

evaluation, a drug and alcohol assessment with Merit Family Services, drug

tests, individual counseling, and parenting classes.           C.W. completed the

psychological evaluation, performed a few individual counseling sessions, did not

follow through with additional parenting classes, and attended Merit sporadically

before being discharged from the program the month before trial for not

completing her services.

        C.W. testified that she did not participate in Merit’s services much during

January, February, and March 2009 and that she used drugs during that time,

        2
         C.W. also used marijuana.
                                      2
including ecstasy. C.W. refused to submit to drug tests in October 2009 and on

November 14, 2009, but she performed a drug test on November 19, 2009, and

tested positive for cocaine, opiates, and OxyContin. C.W. tested positive for

cocaine and opiates again in February 2010 and tested positive for cocaine,

opiates (morphine and heroin metabolite), and benzoylmethylecgonine in March

2010, the same month of the trial. D.A. and Shelly,3 C.W.’s friend, both tested

positive for drugs at some point during the case. D.A. executed an affidavit

during trial voluntarily relinquishing his parental rights to B.A.

      On March 23, 2010, the trial court signed an order terminating C.W.’s

parental rights to B.A., finding by clear and convincing evidence that C.W. had

(1) knowingly placed or knowingly allowed B.A. to remain in conditions or

surroundings    that   endangered     B.A.’s   physical    or emotional   well-being,

(2) engaged in conduct or knowingly placed B.A. with persons who engaged in

conduct that endangered B.A.’s physical or emotional well-being, and (3) caused

B.A. to be born addicted to alcohol or a controlled substance. See Tex. Fam.

Code Ann. § 161.001(1)(D), (E), & (R) (Vernon Supp. 2010). The trial court also

found by clear and convincing evidence that termination of the parent-child

relationship between C.W. and B.A. is in B.A.’s best interest. Id. § 161.001(2).

C.W. appeals.




      3
       We use an alias (Shelly) to refer to C.W.’s friend because her initials are
identical to those of B.A.’s paternal grandmother, S.A.

                                       3
      In her only issue, C.W. argues that the evidence is legally and factually

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

relationship between her and B.A. is in B.A.’s best interest.4

      In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish one ground

listed under subsection (1) of the statute and must also prove that termination is

in the best interest of the child. Id. § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex.

2005). Both elements must be established. Tex. Dep’t of Human Servs. v. Boyd,

727 S.W.2d 531, 533 (Tex. 1987).

      Termination decisions must be supported by clear and convincing

evidence.    Tex. Fam. Code Ann. §§ 161.001, 161.206(a) (Vernon 2008).

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.‖ Id. § 101.007 (Vernon 2008).

      In reviewing the evidence for legal sufficiency in parental termination

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

      4
        C.W. identifies three additional issues in the ―Issues Presented‖ section of
her brief that challenge the sufficiency of the evidence to support the trial court’s
family code section 161.001(1)(D), (E), and (R) findings, but she does not include
any argument on these issues in her brief. To the extent C.W. intended to raise
these three issues, they are waived for noncompliance with rule of appellate
procedure 38.1(i) and for inadequate briefing. See Tex. R. App. P. 38.1(i)
(requiring appellant’s brief to contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record);
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)
(discussing ―long-standing rule‖ that issue may be waived due to inadequate
briefing).
                                      4
reasonably form a firm belief or conviction that the grounds for termination were

proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must review all the

evidence in the light most favorable to the finding and judgment. Id. This means

that we must assume that the factfinder resolved any disputed facts in favor of its

finding if a reasonable factfinder could have done so.        Id.   We must also

disregard all evidence that a reasonable factfinder could have disbelieved. Id.

We must consider, however, undisputed evidence even if it is contrary to the

finding. Id. That is, we must consider evidence favorable to termination if a

reasonable factfinder could, and disregard contrary evidence unless a

reasonable factfinder could not.    Id.   We must therefore consider all of the

evidence, not just that which favors the verdict. Id. But we cannot weigh witness

credibility issues that depend on the appearance and demeanor of the witnesses,

for that is the factfinder’s province. Id. at 573, 574. And even when credibility

issues appear in the appellate record, we must defer to the factfinder’s

determinations as long as they are not unreasonable. Id. at 573.

      In reviewing the evidence for factual sufficiency, we must give due

deference to the factfinder’s findings and not supplant the judgment with our own.

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

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

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

of the child. Tex. Fam. Code Ann. § 161.001(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

                                    5
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.

      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). 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), (b) (Vernon 2008)

(listing factors that should be considered in evaluating the parent’s willingness

and ability to provide the child with a safe environment). Nonexclusive factors

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

of the child include: (A) the desires of the child; (B) the emotional and physical

needs of the child now and in the future; (C) the emotional and physical danger

to the child now and in the future; (D) the parental abilities of the individuals

seeking custody; (E) the programs available to assist these individuals to

promote the best interest of the child; (F) the plans for the child by these

individuals or by the agency seeking custody; (G) the stability of the home or

proposed placement; (H) the acts or omissions of the parent which may indicate

that the existing parent-child relationship is not a proper one; and (I) 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; some listed factors may be

inapplicable to some cases; other factors not on the list may also be considered

                                     6
when appropriate. 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.

       The record demonstrates that C.W. has engaged in a continuing course of

illegal drug use: she used illegal drugs before she was pregnant with B.A.; while

she was pregnant with B.A.; and after she was pregnant with B.A, including in the

same month of the termination trial. C.W.’s knowing use of illegal drugs while

she was pregnant with B.A. caused B.A. to test positive for cocaine when she

was born. C.W. also associated with individuals who tested positive for illegal

drugs (D.W. and Shelly) and admitted that she has friends who can get drugs for

her. At trial, C.W. denied that her use of illegal drugs is bad for her and even

admitted that she continues to use illegal drugs. She testified:

             Q. All right. You said that CPS says that drugs are bad. Do
       you think drugs are bad?

               A. I think anything is bad.

               Q. All right.

            A. But that would be most of y’all’s opinion. I used the drug,
       so, obviously, it’s not bad to me because I continue to use.
       (emphasis added).

Further, and significantly, C.W. testified that she did not share TDFPS’s opinion

that it is in B.A.’s best interest to be raised in a home without any drug use. She

testified:

                                       7
             Q. Do you believe that it is in [B.A.’s] best interest to be raised
      in a home without any drug use?

             A. [B.A.], yes. I mean, that would be y’all’s opinion.

             Q. But that is also your opinion; is that right?

            A. No. It’s not. Because y’all try to make drugs to be
      something bad. Like if you’re high, you can’t provide for your child
      and that’s a lie. (emphasis added).

      Aside from C.W.’s admitted continuing illegal drug use and denial that it is

in B.A.’s best interest to be raised in a home without any illegal drug use, the trial

court admitted a judgment convicting C.W. of theft by check and a judgment

adjudicating her guilty of prostitution. Further, C.W. testified that she does not

have a job but that she works with her uncle cleaning houses sometimes, that

she does not have a bank account, that she has only $100 to her name, and that

she owns a car but does not have car insurance. A TDFPS employee testified

that it is in B.A.’s best interest to terminate C.W.’s parental rights, and S.A.

testified that it is in B.A.’s best interest to be raised by her and that she wants to

adopt B.A. if B.A. becomes available for adoption.

      Considering the relevant statutory factors in evaluating C.W.’s willingness

and ability to provide B.A. with a safe environment and the Holley factors—

including the emotional and physical needs of B.A. now and in the future, the

emotional and physical danger to B.A. now and in the future, C.W.’s parental

abilities, and the acts or omissions of C.W. which may indicate that the existing

parent-child relationship is not a proper one—we hold that, in light of the entire


                                      8
record and giving due consideration to evidence that the trial court could have

reasonably found to be clear and convincing, the trial court could reasonably

have formed a firm belief or conviction that termination of C.W.’s parental rights

to B.A. is in B.A.’s best interest. Accordingly, the evidence is legally and factually

sufficient to support the trial court’s section 161.001(2) best interest finding. See,

e.g., In re D.M., 58 S.W.3d 801, 815 (Tex. App.—Fort Worth 2001, no pet.)

(holding evidence sufficient to support jury’s best interest finding); In re J.W., No.

02-08-00211-CV, 2009 WL 806865, at *6–7 (Tex. App.—Fort Worth Mar. 26,

2009, no pet.) (mem. op.) (holding evidence sufficient to support trial court’s best

interest finding). We overrule C.W.’s only issue and affirm the trial court’s order

terminating the parent-child relationship between C.W. and B.A.




                                              BILL MEIER
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ.

DELIVERED: December 16, 2010




                                      9
