Affirmed and Memorandum Opinion filed April 28, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00984-CV

                   IN THE INTEREST OF R.N.Y., A CHILD



                    On Appeal from the 314th District Court
                             Harris County, Texas
                      Trial Court Cause No. 2013-06634J

                 MEMORANDUM                       OPINION


      R.L.Y. (“Father”) and L.T.L.Y. (“Mother”) appeal the trial court’s final
decree terminating their parental rights, and appointing the Department of Family
and Protective Services (the “Department”) as sole managing conservator of
R.N.Y. (the “Child”). In a single issue the Mother challenges the trial court’s
finding that termination of her rights would be in the best interest of the Child. The
Father’s appointed counsel filed a brief in which he concludes the appeal is wholly
frivolous and without merit. We affirm the termination of both parents’ rights.
                                I.      BACKGROUND

      The Child was born August 30, 2013. On December 4, 2013, the Department
filed an original petition for protection of the child and for termination of the
parents’ rights. The affidavit attached to the petition alleged that on December 3,
2013, the Department received a report alleging physical abuse of the Child. The
Child sustained multiple rib fractures, bruising in the chest area, and a small cut on
the upper lip. The parents gave inconsistent explanations for the Child’s injuries.

      On December 17, 2013, the trial court held a show cause hearing at which
Dr. Reena Isaac testified. Dr. Isaac treated the Child when he was brought into the
hospital on December 3, 2013. The Child had multiple rib fractures, which were
several days old at the time he was brought into the hospital. He had an abrasion on
his lip and two bruises on his chest.

      The Father reported that the rib fractures resulted from carrying the Child
while he was walking down the stairs, slipping, and forcefully grabbing the child.
The Father reported that the bruises occurred approximately two weeks earlier
while he was bathing the Child. The Mother reported that she did not see the
injuries occur. Neither parent satisfactorily explained the mouth injury. Based on
the injuries to the Child and the parents’ explanations, Dr. Isaac testified that the
Child was in danger. Dr. Isaac testified that the Mother should have been aware of
the bruises and should have reported them.

      The Mother testified that she did not know about the Child’s broken ribs
because on the day that the Child was injured she was in the hospital visiting her
mother. The Father reported that the crib broke causing the cut on the Child’s lip.
The Mother reported that prior to the December 3 trip to the hospital, she had taken
the Child to the doctor because he appeared “fussy.” The doctor and his assistant
told the Mother that the baby had “a gas bubble.”
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      At the conclusion of the hearing, the trial court named the Department
temporary managing conservator of the Child. Upon request of the Department, the
trial court ordered a drug test of the Mother. On January 24, 2014, the Department
filed Family Service Plans for both parents requiring them to comply with certain
services or risk termination of their parental rights. At the time of a later hearing on
February 11, 2014, the Father had been arrested for injury to the Child.

      On May 20, 2014, the trial court held a permanency hearing. At that time the
Child was living with the maternal aunt and doing well in that placement. The
Mother had completed a psychological assessment, a drug and alcohol assessment,
and parenting classes. She was sporadically submitting to random urine tests,
which resulted in three negative results. At that time, the Mother was looking for a
job but had not shown proof of housing; she was still living in her mother’s home,
which is the home where the child was injured. The Father was still incarcerated.

      On August 28, 2014, a review hearing was held in which Sarah Nash, the
caseworker, testified that the Mother refused to submit to extensive outpatient
treatment for drug and alcohol addiction, and had four positive urine test results
out of 12 tests. The Mother tested positive for cocaine, marijuana, and
benzogleconene. The Father pleaded guilty to injury to a child and received a
sentence of ten years’ deferred adjudication community supervision. The Father
received his Family Service Plan, and was given referrals to complete his parenting
classes and psychological assessment, but did not complete any services. The Child
had been moved to a foster home with foster parents who wanted to adopt him.
The Department had an approved home study for the Child’s maternal great aunt.

      On December 4, 2014, the termination case was called to trial. The
Department admitted into evidence the Family Service Plans, the Mother’s failed
drug tests, and the Father’s deferred adjudication order for injury to the Child. The

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drug tests showed positive results for cocaine, marijuana, and benzogleconene. The
Mother’s Family Service Plan required her to:

           obtain, pay for, and maintain appropriate housing for herself
            and her child;
           obtain and maintain legal and verifiable employment for at least
            6 months;
           attend all court hearings, permanency conferences, family
            visits, and scheduled appointments;
           submit to random drug screenings;
           submit to a 4C’s Evaluation to assess her emotional and mental
            health;
           attend, actively participate in, and successfully complete
            parenting classes; and
           complete a drug and alcohol assessment and follow all
            recommendations.
      Nash testified that the Child came into Department custody because he was
brought into the hospital with multiple healing rib fractures, bruises on his chest, a
cut on his lip, and a rash under his arm. Nash testified that the first treating doctor
estimated the rib fractures occurred 10 to 14 days before the Child was brought to
the hospital. Nash testified that the time frame described for the Child’s previous
medical visit in which he was diagnosed with “gas bubbles” does not coincide with
the time frame in which his ribs were broken. Counsel for the Mother argued that
the Mother acted appropriately three weeks earlier when she took the Child to the
hospital because he was “fussy.” Nash disputed that the broken ribs may have been
misdiagnosed as “gas bubbles” three weeks earlier; she testified that the doctor
reported on December 3, 2013 that the rib fractures were 10 to 14 days old, not
three weeks old. Nash maintained that the Mother had delayed obtaining medical
attention after the Child’s ribs were broken. Nash admitted that by taking the Child
to the doctor that the Mother had shown some concern for the Child.
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      Neither parent completed the services required in the Family Service Plans;
both parents tested positive for illegal drugs; and the Father pleaded guilty to injury
to the Child. Nash also testified that the foster family wished to adopt the Child.

      The Child was originally placed with his maternal aunt. When the aunt was
asked to submit to a drug test, she relinquished the Child. Although the Department
had an approved home study for the maternal great aunt, upon further
investigation, the Department learned that the great aunt did not have sufficient
income to support the Child. The Department did not consider the maternal
grandmother for a potential placement because the Child’s injuries occurred in her
home. The current foster placement was meeting all of the Child’s needs. Nash
testified that it was in the best interest of the Child to remain in the foster home.

      Mark Johnson, a caseworker who was assigned approximately one month
before trial, testified that the Mother had not shown proof of employment or
housing, and the Father had completed none of his service plan. The Mother and
grandmother visited the Child once in the month before trial, but the Father had not
been visiting. At the time of trial the Child was clean, healthy, and in a safe
environment. Johnson testified that in his opinion it was in the best interest of the
Child to terminate the parents’ rights and leave the Child in the foster home with
the goal of adoption.

      The Mother testified that three weeks before the Child was removed from
her she had taken him to the doctor because the Child seemed to be fussy when
picked up on one side. The doctor or his assistant examined the child, diagnosed
gas, and recommended over-the-counter medication. The Mother explained that
she had not bathed the Child in two weeks because she was afraid the Child would
become ill from taking a bath during the winter. The Mother had one job, but was
fired after she was called for a random drug test. Since leaving that job she has

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been unemployed but looking for work. She visited the Child up to two times per
month. The Mother testified that if the Child could not be returned to her, she
preferred him to be placed with her mother.

      The Father testified that the Child’s injuries occurred when he was putting
the Child in his crib. The Father picked the Child up because he was crying; when
he started to place the Child back in the crib, the Child began to fall and the Father
squeezed him tightly. When questioned about his earlier story of squeezing the
Child to prevent him from falling down the stairs, the Father testified the Child
could have been injured at that time as well. He denied giving inconsistent
accounts of how the Child was injured.

      The Child’s maternal grandmother filed a petition in intervention seeking
sole managing conservatorship of the Child. The Child’s aunt and great aunt
testified on behalf of the grandmother’s intervention. They both testified that the
grandmother was best suited to take the Child. The Child’s grandmother testified
that the Child was injured in her house, but after the injuries were discovered she
requested that the Mother and Father move out of her house. She requested that the
Department perform a home study on her home, and asked that she be named sole
managing conservator of the Child.

      At the conclusion of the trial the trial court terminated both parents’ rights
and named the Department sole managing conservator.

                   II.    ANALYSIS OF THE MOTHER’S APPEAL

      In her sole issue on appeal the Mother argues the evidence was factually
insufficient to support the trial court’s finding that termination of her rights is in
the Child’s best interest. Parental rights can be terminated upon proof by clear and
convincing evidence that (1) the parent has committed an act prohibited by section


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161.001(1) of the Family Code; and (2) termination is in the best interest of the
child. Tex. Fam. Code Ann. § 161.001(1), (2) (West 2014); In re J.O.A., 283
S.W.3d 336, 344 (Tex. 2009).

      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 at 345. “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
conviction, then the evidence is factually insufficient.” Id. We give due deference

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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). The fact finder is
the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at
109.

       A.    Unchallenged Predicate Termination Findings
       The trial court made predicate termination findings that the Mother had
committed acts establishing the grounds set out in subsections D, E, and O of
section 161.001(1), which provide that termination of parental rights is warranted
if the fact finder finds by clear and convincing evidence, in addition to the best-
interest finding, that the parent has:

       (D) knowingly placed or knowingly allowed the child to remain in
       conditions or surroundings which endanger the physical or emotional
       well-being of the child;
       (E) engaged in conduct or knowingly placed the child with persons
       who engaged in conduct which endangers the physical or emotional
       well-being of the child; [or]
                                         *****
       (O) failed to comply with the provisions of a court order that
       specifically established the actions necessary for the parent to obtain
       the return of the child who has been in the permanent or temporary
       managing conservatorship of the Department of Family and Protective
       Services for not less than nine months as a result of the child’s
       removal from the parent under Chapter 262 for the abuse or neglect of
       the child[.]
Tex. Fam. Code Ann. § 161.001(1)(D),(E), (O).

       The Mother concedes that sufficient evidence supports the predicate
termination finding under section 161.001(1)(O). Unchallenged predicate findings
are binding on the appellate court. See In re E.A.F., 424 S.W.3d 742, 750 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied). The unchallenged predicate finding

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can therefore support the best interest finding. See In re C.H., 89 S.W.3d at 28
(holding that the same evidence may be probative of both section 161.001(1)
predicate grounds and best interest).

      B.     Best Interest of the Child

      A strong presumption exists that the best interest of the child is served by
keeping the child with its natural parent, and the burden is on the Department to
rebut that presumption. In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied). 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 which may indicate the existing
parent-child relationship is not appropriate; and (9) any excuse for the parent’s 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 2014)
(listing factors to consider in evaluating parents’ willingness and ability to provide
the child with a safe environment).

      There is a strong presumption that the best interest of a child is served by
keeping the child with his or her natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d at 533. 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).

      The Mother contends that the presumption in her favor is not rebutted
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because termination was primarily based on physical abuse of the Child, but no
health care professional testified at trial, nor were any medical records admitted
into evidence. Although Dr. Isaac testified at the show cause hearing, her
testimony was not admitted at trial. In assessing the evidence in support of a ruling
from a final trial, testimony from prior hearings that is not admitted into evidence
at trial is not part of the evidence we may consider in support of the trial court’s
ruling.1 See In re M.C.G., 329 S.W.3d 674, 675 (Tex. App.—Houston [14th Dist.]
2010, pet. denied).

       While Dr. Isaac did not testify at trial, Nash testified that the Child was
taken to the hospital with healing rib fractures. Nash further testified without
objection that the doctor reported the fractures were 10 to 14 days old. Moreover,
the record reflects that the termination of parental rights was not based solely on
the injury to the Child. We review the applicable Holley factors below.

       1.      Needs of and Danger to the Child
       With regard to the present and future emotional and physical needs of the
Child and the present and future emotional and physical danger to the child, the
Mother points out that the Child made a full recovery from his injuries and is doing
well in his adoptive placement. The Mother argues that she acted responsibly when
she took the Child to the doctor three weeks earlier when he was “fussy,” and that
she acted responsibly when she took him to the hospital when she saw his later
injuries. She argues it is undisputed that she did not cause the Child’s injuries, and
that while the evidence of endangerment against the Father is overwhelming, the
same evidence against her is speculative. To the contrary, there was testimony at
trial that the rib fractures were healing at the time the Child was seen in the

       1
         Although we included information from prior hearings in the factual background, our
analysis of the best interest of the Child is based on the trial record and exhibits admitted at trial.

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hospital, and that the Mother did not seek medical attention when the Child’s ribs
were broken. There was further testimony that the rash under the Child’s arm was
due to lack of hygiene.

      Nash and the Mother both testified that the Mother is not attending therapy
sessions as required by the Family Service Plan. The Mother argued that she had
been discharged from therapy because the Department would not pay the therapist.
Nash, however, testified that the Mother was unsuccessfully discharged from
therapy, and did not complete the treatment.

      The record contains exhibits detailing the results of the Mother’s drug tests.
The tests reported one positive test for marijuana on December 17, 2013, a positive
test for benzoylecgonine, cocaine, and marijuana on May 20, 2014, and a positive
test for benzoylecgonine and cocaine on August 28, 2014. The Father also had a
positive result for benzoylecgonine, cocaine, and marijuana on August 28, 2014. A
parent’s drug use supports a finding that termination is in the best interest of the
child. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.).
Moreover, the affidavit attached to the original petition for termination listed a
criminal history for the Mother including two convictions for “Failure to ID
fugitive,” theft by check, and tampering with a government document.

      2. Stability and Compliance with Services

      The Mother conceded that sufficient evidence exists to support termination
under section 161.001(1)(O), which addresses compliance with the Family Service
Plan. Such evidence can also be considered in support of a finding that termination
is in the best interest of the child. See In re C.H., 89 S.W.3d at 27. In determining
the best interest of a child 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 Child. See In re E.C.R., 402 S.W.3d 239,
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249 (Tex. 2013) (“Many of the reasons supporting termination under subsection O
also support the trial court’s best interest finding.”).

      The record contains evidence that the Mother attempted to complete a
portion of the service plan. However, the record also contains evidence of the
Mother’s positive drug tests, her inability to maintain employment, and her
inability to provide stable housing. These factors weigh in favor of the trial court’s
finding that termination is in the best interest of the Child.

      3.     Child’s Desires and Proposed Placement

      The Child was less than two years old at the time of trial and unable to
express his desires. When a child is too young to express his desires, the factfinder
may consider that the child has bonded with the foster family, is well cared for by
them, and has spent minimal time with a parent. In re J.D., 436 S.W.3d 105, 118
(Tex. App.—Houston [14th Dist.] 2014, no pet.).

      The stability of the proposed home environment is an important
consideration in determining whether termination of parental rights is in the child’s
best interest. See In re J.N.R., 982 S.W.2d 137, 143 (Tex. App.—Houston [1st
Dist.] 1998, no pet.). A child’s need for permanence through the establishment of a
“stable, permanent home” has been recognized as the paramount consideration in a
best interest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—
Dallas 2007, no pet.). Therefore, evidence about the present and future placement
of the Child is relevant to the best interest determination. See In re C.H., 89
S.W.3d at 28.

      Both Nash and Johnson testified that the Child was placed in an adoptive
foster home. The adoptive foster home is safe and stable and his emotional and
physical needs are being met. The Child’s injuries have healed, and he has bonded


                                            12
with the foster parents. These factors weigh in favor of the trial court’s finding.

      4.     Parenting Abilities and Family Support

      We may also consider the Mother’s past performance as a parent in
evaluating her ability to provide for the Child and the trial court’s determination
that termination of her parental rights would be in the Child’s best interest. See In
re C.H., 89 S.W.3d at 28.

      The Mother argues that she was not present when the Child was injured and
she took him to the hospital as soon as she realized he was injured. The Mother’s
sister, aunt, and mother testified in support of placing the Child with his maternal
grandmother. The record reflects, however, that the sister relinquished the Child
when asked to submit to a drug test, the aunt did not have sufficient income or
verifiable employment, and the grandmother’s home was unsuitable because it is
where the original injuries occurred. The Mother attended parenting classes and
visited the Child with her mother as often as twice per month. Although the Mother
was attempting to improve her parenting skills, the record does not reflect strong
family support.

      The record contains evidence supporting the best interest finding based on
the Mother’s drug use, history of neglect, lack of stable employment, and failure to
comply with court-ordered services. See In re S.B., 207 S.W.3d 877, 887–88 (Tex.
App.—Fort Worth 2006, no pet.) (considering the parent’s drug use, inability to
provide a stable home, and failure to comply with a family service plan in holding
the evidence supported the best interest finding). Based on the evidence presented,
the trial court could have reasonably formed a firm belief or conviction that
terminating the Mother’s parental rights was in the Child’s best interest so that he
could promptly achieve permanency in his life through adoption by the foster
family. See In re T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.]
                                          13
2013, no pet.); In re M.G.D., 108 S.W.3d 508, 513–14 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied).

      Applying the applicable Holley factors to the evidence, we conclude that
factually sufficient evidence supports the trial court’s finding that termination of
the Mother’s parental rights was in the best interest of the Child. We overrule the
Mother’s sole issue on appeal.

                    III.      ANALYSIS OF THE FATHER’S APPEAL

      The Father’s appointed counsel filed a brief in which he concludes the
appeal is wholly frivolous and without merit. The brief meets the requirements of
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), presenting a professional
evaluation of the record demonstrating why there are no arguable grounds to be
advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). The Anders
procedures are applicable to an appeal from the termination of parental rights when
an appointed attorney concludes that there are no non-frivolous issues to assert on
appeal. In re D.E.S., 135 S.W.3d 326, 329 (Tex. App.—Houston [14th Dist.] 2004,
no pet.).

      On March 23, 2015, a copy of the record and counsel’s brief were delivered
to the Father and the Father was notified of the right to file a pro se response. See
id. at 329–30. More than 25 days have elapsed and as of this date, no pro se
response has been filed.

      We have carefully reviewed the record and counsel’s brief and agree the
Father’s appeal is wholly frivolous and without merit. Further, we find no
reversible error in the record. A discussion of the brief would add nothing to the
jurisprudence of the state.



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      We affirm the trial court’s judgment.




                                      /s/     William J. Boyce
                                              Justice



Panel consists of Justices Boyce, McCally, and Donovan.




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