Affirmed and Memorandum Opinion filed August 30, 2018.




                                             In The

                         Fourteenth Court of Appeals

                                    NO. 14-18-00218-CV

    IN THE INTEREST OF R.V.P. AND B.G.B. A/K/A B.P., CHILDREN


                        On Appeal from the 314th District Court
                                 Harris County, Texas
                          Trial Court Cause No. 2017-00805J

                     MEMORANDUM                          OPINION


      Appellant R.P. (Mother) appeals the trial court’s final decree terminating her
parental rights and appointing the Department of Family and Protective Services as
sole managing conservator of her children, R.V.P. (Raphael) and B.G.B (Barry).1
The trial court terminated Mother’s rights on the predicate grounds of endangerment,
constructive abandonment, and failure to comply with a family service plan. See
Tex. Fam. Code Ann. § 161.001(b)(1)(E), (N), & (O) (West Supp. 2017). The trial


      1
          We use pseudonyms to refer to the children. See Tex. R. App. P. 9.8.
court further found that termination of Mother’s rights was in the children’s best
interest, and named the Department managing conservator of the children. The
children have different fathers. The trial court terminated both fathers’ rights on the
ground that they failed to respond to the Department’s petition by timely filing an
admission of paternity or counterclaim on the issue of paternity. The fathers have
not appealed the termination of their parental rights.

      In two issues Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding on the predicate ground of constructive
abandonment, and the factual sufficiency of the evidence to support the trial court’s
finding that termination is in the best interest of the children. We affirm.

                 I.     FACTUAL AND PROCEDURAL BACKGROUND

A.    Pretrial Proceedings

      1.     Removal Affidavit

      The Department received a referral alleging medical neglect, neglectful
supervision, and physical neglect of Raphael, 6 years old, and physical neglect, and
neglectful supervision of Barry, 4 years old. The report stated that Mother was living
in a home with mold that was adversely affecting Raphael’s asthma. The report also
stated that Mother does not have the children enrolled in school, the children have
not been in school, and have been living from home to home along with Mother. The
report alleged that Mother was using illegal drugs while the children were in her
care. Mother has history with the Department resulting in Mother previously having
to complete services.

      2.     The Investigation

      Department investigators contacted Mother, who reported that she was not
living in the home with mold. Mother reported that both children were enrolled in

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school, but were not attending because their immunizations were not up to date.
Mother told the investigator that she had lived with her mother (Grandmother) for a
time, but was “kicked out” of the house when her mother “caught up on some bills.”
Mother then lived with her father (Grandfather) for a time, but moved out when her
father’s wife no longer wanted Mother and the children to live with them. Mother
admitted to a history with the Department and prior drug use. She claimed not to be
using drugs or alcohol at the time the children were removed.

         The investigator noted that the children were dressed appropriately for age,
weight, and size. They appeared to be clean and there was no sign of developmental
delays. The children were shy and were comforted by Mother when the investigator
tried to take a picture of them.

         A family friend agreed to be a “safety monitor” while the Department awaited
the results of Mother’s drug tests. Mother and the children were to stay with the
family friend pending the Department’s investigation. When the family friend left
his home to run an errand, he returned to find that Mother had left with the children.
The family friend reported that he had tried to assist Mother with food and help
getting the children’s immunizations, but Mother had run away when he had tried to
help. The family friend had allowed Mother and her children to live with him before,
but did not think Mother wanted to be helped. Mother frequently brought strange
men and other people to his home. The family friend suspected Mother was using
drugs.

         The investigator was unable to contact Mother after this incident until January
8, 2017, over a month after the initial referral. Mother called the investigator and
said she would report for a drug test the next day. Mother did not appear for the drug
test. The following day Mother submitted to a urine test, which was negative. Mother
initially refused a hair follicle test, but submitted to a hair follicle test on January 23,

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2018, almost two weeks later. The hair follicle test was positive for marijuana and
cocaine.

        Approximately two weeks later the investigator received a phone call from
Mother accusing the family friend of requiring sex in exchange for living in his
home. Mother gave the investigator two other names of potential placements for the
children. One person had a criminal history, but the other person agreed to take the
children. However, the other adults who lived in the house with that person would
not agree to take the children.

        The Department requested to be named temporary managing conservator of
the children because Mother tested positive for marijuana and cocaine. The
Department alleged Mother was unable to provide a stable and safe living
environment for the children and that it was not in their best interest to remain in the
home.

        The trial court entered a temporary order removing the children, naming the
Department temporary managing conservator, and ordering drug and alcohol
screening for Mother.

        3.      Family Service Plan

        The Department entered into a family service plan with Mother, which noted
that Mother had failed to provide protection and safety for the children, was known
to use drugs, and had allowed the children to live in a home with mold and possible
drug use. The trial court signed an order on March 30, 2017, that approved the
service plan and made it an order of the court. The plan required Mother to:

              complete parenting classes in person six to eight weeks in length
               and provide a certificate of completion to the agency;
              acquire and maintain a legal form of employment and provide
               documentation in the form of a paycheck stub to the caseworker;

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             submit to a psychosocial assessment                    and    follow    all
              recommendations from the assessment;
             refrain from engaging in any criminal activities;
             submit to random urinalysis or hair follicle drug testing and test
              negative at all times;
             make all efforts to attend court hearings, permanency
              conferences, family visits, and scheduled appointments;
             acquire and maintain stable housing for more than six months;
              and
             participate fully in a drug and alcohol assessment.

B.    Trial Testimony

      At the beginning of trial the Department introduced documentary evidence in
the form of the returns on service, children’s birth certificates, DNA testing on
potential fathers, the removal affidavit, temporary orders following the adversary
hearing, record of the status hearing, family service plans, drug test results, Mother’s
criminal record, Mother’s Children’s Crisis Care Center (4 C’s) assessment, a
permanency plan, and permanency progress report. Mother objected to the
admission of the removal affidavit and the 4 C’s assessment as hearsay, the court
orders because the court could take judicial notice of its own orders, and the
conviction as being remote. The Department withdrew its proffer of the court orders,
and the court sustained Mother’s objection to the removal affidavit. Mother’s other
objections were overruled.

      The returns on citation, birth certificates, family service plans, drug test
results, criminal records, 4 C’s assessment, and permanency report were admitted
into evidence.

      The caseworker’s supervisor2 testified that the children, ages five and seven

      2
          On cross-examination, the supervisor explained that the primary caseworker had recently
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at the time of trial, were placed in a foster-to-adopt home. According to the
caseworker, the foster family is meeting all of the children’s needs. During the
caseworker’s testimony the trial court admitted the removal affidavit. Early after the
children were removed Mother tested positive for cocaine. On January 23, 2017,
Mother tested positive for marijuana and cocaine. One month later, on February 23,
2017, Mother tested positive for benzoylecgonin, cocaine, and marijuana. Mother
was asked to submit to drug tests at hearings scheduled March 31, 2017, June 29,
2017, and September 20, 2017, but she did not appear for any of those drug tests.
Mother was told that a failure to appear at a drug test would count as a positive result.

       Mother failed to follow the recommendations of the psychosocial evaluation,
and failed to complete parenting classes, individual therapy, or domestic violence
classes. Mother did not regularly visit the children. Mother also has a prior
conviction for theft.

       The supervisor testified that it was in the children’s best interest to terminate
their parents’ rights because the parents had not remained drug free and were unable
to ensure that their children would be in a safe and stable environment. The children
have adjusted to their foster family and have become part of a family unit. The
children have become familiar with what is expected of them with regard to their
education and privileges they have in the home. They are understanding boundaries
and the consequences of exceeding the boundaries in the household.

       Mother testified that she had used Xanax and marijuana in the past, but had
not used cocaine. Mother could not explain why she tested positive for cocaine.
Mother was unemployed at the time of trial, but pays bills with the help of friends


taken family medical leave. The caseworker worked with the family until approximately one week
before trial. The supervisor read the case file and supervised the caseworker while the case was
pending.

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and family. Mother testified that she participated in group counseling and submitted
to a psychosocial assessment. Mother asked that her rights not be terminated and
that the children be placed with her father. In the 4 C’s assessment Mother reluctantly
admitted that she was living with a man who was physically abusing her.

      Grandfather testified that he and his wife have a stable home in Virginia.
Grandfather asked the court to place the children with him and his wife. Grandfather
testified that he has a relationship with the children. Grandfather explained that he
had a previous case eight years earlier with the Child Protection Service in Virginia.
Grandfather said his wife called the police because he verbally abused his son.
Grandfather also admitted hitting his son and pushing him when his son was 13 years
old. Grandfather was charged with assault and battery and received probation similar
to deferred adjudication. Grandfather completed his services in Virginia and did not
lose parental rights to his son. Grandfather said that he has learned through anger
management classes how to control his anger.

      The trial court found clear and convincing evidence that termination of
Mother’s rights was warranted under section 161.001(b)(1)(E) (endangerment), (N)
constructive abandonment, and (O) (failure to follow the family service plan), and
that termination was in the best interest of the children.

                                   II.   ANALYSIS

      In two issues Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding of constructive abandonment under
subsection N and the factual sufficiency of the evidence to support the best-interest
finding. Mother does not challenge the trial court’s findings under subsection E
(endangerment) or subsection O (failure to follow the family service plan). Because
Mother’s parental rights can be terminated with a finding of best interest of the child
and any one of the three section 161.001(b)(1) grounds, we need not address
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Mother’s first issue challenging the trial court’s finding on the predicate ground of
constructive abandonment. See In re U.P., 105 S.W.3d 222, 236 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied).

A. Standard of Review

       Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Although parental rights are of constitutional magnitude, they are not absolute. In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for courts to recognize
the constitutional underpinnings of the parent-child relationship, it is also essential
that emotional and physical interests of the child not be sacrificed merely to preserve
that right.”).

       Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).
“Clear and convincing evidence” means “the measure or degree of proof that 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); In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a
heightened standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).

       In reviewing the factual sufficiency of the evidence, we consider and weigh
all of the evidence, including disputed or conflicting evidence. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009). “If, in light of the entire record, the disputed evidence
that a reasonable fact finder could not have credited in favor of the finding is so
significant that a fact finder could not reasonably have formed a firm belief or
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conviction, then the evidence is factually insufficient.” Id. We give due deference to
the fact finder’s findings and we cannot substitute our own judgment for that of the
fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

B.    Best Interest of the Children

      In her second issue, Mother challenges the factual sufficiency of the evidence
to support the trial court’s finding that termination is in the best interest of the
children.

      The factors the trier of fact may use to determine the best interest of the child
include: (1) the desires of the child; (2) the present and future physical and emotional
needs of the child; (3) the present and future emotional and physical danger to the
child; (4) the parental abilities of the persons seeking custody; (5) the programs
available to assist those persons seeking custody in promoting the best interest of the
child; (6) the plans for the child by the individuals or agency seeking custody; (7)
the stability of the home or proposed placement; (8) acts or omissions of the parent
that may indicate the existing parent-child relationship is not appropriate; and (9)
any excuse for the parents’ acts or omissions. Holley v. Adams, 544 S.W.2d 367,
371–72 (Tex. 1976); In re U.P., 105 S.W.3d at 230; see also Tex. Fam. Code Ann.
§ 263.307(b) (West Supp. 2017) (listing factors to consider in evaluating parents’
willingness and ability to provide the child with a safe environment).

      Courts apply a strong presumption that the best interest of the children is
served by keeping the children with their natural parents, and the burden is on the
Department to rebut that presumption. In re U.P., 105 S.W.3d at 230. Prompt and
permanent placement in a safe environment also is presumed to be in the children’s
best interest. Tex. Fam. Code Ann. § 263.307(a).

      In reviewing the sufficiency of the evidence to support the trial court’s finding


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on best interest we are mindful that the focus in a best-interest analysis is not only
on the parent’s acts or omissions, but on the nature of the relationship the child has
with the parent. In re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012). Therefore, in
analyzing whether termination of Mother’s parental rights is in the children’s best
interest, we focus on the evidence regarding the nature of the relationship between
Mother and her children.

      1.     Desires of the children

      At the time of trial the children were five and seven years old. When children
are too young to express their desires, the fact finder may consider that the children
have bonded with the foster family, are well cared for by the foster family, and have
spent minimal time with a parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied). Mother argues the children were old enough
to express their desires, but were not heard from at trial. This court has previously
determined that a seven-year-old may not be old enough to express his or her desires
with regard to the parents. See In re Z.N.M., No. 14-17-00650-CV; 2018 WL 358480
at *8, (Tex. App.—Houston [14th Dist.] Jan. 11, 2018, no pet.) (mem. op.); see also
In re K.P.C., No. 14-17-00993-CV, 2018 WL 2106669 at *10–11 (Tex. App.—
Houston [14th Dist.] 2018, no pet. h.) (mem. op.) (holding that children ages five,
six, and eight were not old enough to express their desires).

      The record reflects the children are in a foster-to-adopt home. The children
have adjusted to their foster family and have become part of a family unit. They have
become familiar with what is expected of them with regard to their education and
privileges they have in the home, and are understanding boundaries and the
consequences of exceeding the boundaries in the household.

      2.     Present and future physical and emotional needs of the children
      Regarding this factor, we note that the need for permanence is a paramount
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consideration for the children’s present and future physical and emotional needs. See
In re D.R.A., 374 S.W.3d at 533. The goal of establishing a stable, permanent home
for a child is a compelling government interest. Id.

      While some children may have extraordinary physical and emotional needs
requiring extra care, all children have physical and emotional needs that must be met
on a daily basis. The record reflects that the children do not have extraordinary
needs. With regard to the children’s emotional and physical needs, evidence shows
that Mother has not provided for the children’s past or present physical and
emotional needs.

      Mother argues that the evidence shows she was the children’s primary
caregiver and she was doing an appropriate job of caring for them. Mother also
argues the children were bonded with her. Despite Mother’s arguments, the record
reflects Mother was involved in a physically abusive relationship, did not have stable
employment, and continued to use illegal drugs even after her children were
removed. A fact finder may infer from a parent’s past inability to meet the child’s
physical and emotional needs an inability or unwillingness to meet the child’s needs
in the future. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.]
2014, no pet.).

      3.     Present and future physical and emotional danger to the children
      With regard to this factor we note that Mother continued inappropriate
behaviors including her activities involving illegal drugs, as well as her unhealthy
relationships that involved domestic violence, subjecting her children to an uncertain
future that endangered her children’s safety and stability. See In re J.O.A., 283
S.W.3d at 345. Evidence of a parent’s unstable lifestyle can also support the
conclusion that termination is in the child’s best interest. In re A.R.M., No. 14-13-
01039-CV, 2014 WL 1390285, at *10 (Tex. App.—Houston [14th Dist.] Apr. 8,

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2014, no pet.) (mem. op.). “Continued illegal drug use after a child’s removal is
conduct that jeopardizes parental rights and may be considered as establishing an
endangering course of conduct, and that termination is in the best interest of the
child.” See In re B.Z.S., No. 14-16-00825-CV, 2017 WL 536671, at *5 (Tex. App.—
Houston [14th Dist.] Feb. 9, 2017, pet. denied) (mem. op.).

      4.    Parental abilities of those seeking custody, stability of the home or
            proposed placement, and plans for the child by the individuals or
            agency seeking custody

      These factors compare the Department’s plans and proposed placement of the
children with the plans and home of the parent seeking to avoid termination of the
parent-child relationship. See In re D.R.A., 374 S.W.3d at 535.

      Mother continued to use drugs and live in an unstable environment after the
children were removed from her care. Mother contends the Department has an
obligation to “look at any viable family members as possible placements for children
in its care.” Mother argues that Grandfather is willing to take the children and the
Department has not sufficiently investigated Grandfather as a potential placement.

      In enabling the Department to give preference to a relative of the child if
placement with the noncustodial parent is inappropriate, the trial court has broad
discretion in determining the best interest of the child. See In re S.P., 168 S.W.3d
197, 211 (Tex. App—Dallas 2005, no pet.). The determination of where a child will
be placed is a factor in determining the child’s best interest, but the fact that
placement will be with non-relatives is not a bar to termination. In re A.L., 389
S.W.3d 896, 902 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

      The record reflects that Mother reported physical abuse by Grandfather, and
Grandfather admitted physical abuse of his son who currently lives with him. The
Department can conduct a home study on Grandfather before permanently placing

                                        12
the children. Termination of Mother’s parental rights does not prevent the
Department from considering Grandfather as a potential placement. See id.

      5.     Programs available to assist in promoting the children’s best interest

      In determining the best interest of the children in proceedings for termination
of parental rights, the trial court may properly consider that the parent did not comply
with the court-ordered service plan for reunification with the children. See In re
E.C.R., 402 S.W.3d at 249. The caseworker’s supervisor testified that Mother failed
to complete her family service plan. Although Mother contends she completed some
services, the evidence established that she did not fully complete the plan. Mother
offered no excuse for failure to complete the plan.

      Mother’s failure to complete the court-ordered service plan demonstrates that
she is unwilling to take advantage of the services offered to her by the Department
and casts doubt on her parenting abilities. See In re I.L.G., 531 S.W.3d 346, 355–56
(Tex. App.—Houston [14th Dist.] 2017, pet. denied); Tex. Fam. Code
§ 263.307(b)(10), (11).

      6.     Acts or omissions of the parent that may indicate the existing parent-
             child relationship is not appropriate, and any excuse for the parent’s
             acts or omissions
      As noted above, Mother did not offer excuses for failure to complete the
family service plan. Mother admitted use of marijuana and Xanax, but denied using
cocaine despite a positive test result. Mother’s pattern of conduct reflects that
termination is in the best interest of the child.

      In view of the entire record, we conclude the disputed evidence is not so
significant as to prevent the trial court from forming a firm belief or conviction that
termination was warranted under section 161.001(b)(2). Accordingly, we conclude
the evidence is factually sufficient to support the trial court’s best-interest finding.

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We overrule Mother’s second issue.

                               III.   CONCLUSION

      Based on the evidence presented, the trial court reasonably could have formed
a firm belief or conviction that terminating Mother’s parental rights was in the
children’s best interest so they could achieve permanency through adoption. See In
re M.G.D., 108 S.W.3d 508, 513–14 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied).

      We affirm the decree terminating Mother’s parental rights and naming the
Department managing conservator.




                                      /s/    Marc W. Brown
                                             Justice



Panel consists of Chief Justice Frost and Justices Donovan and Brown.




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