Opinion issued April 23, 2019




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                             ————————————
                                NO. 01-18-00985-CV
                             ———————————
                     IN THE INTEREST OF A.S., A CHILD



                        On Appeal from the 313th District
                              Harris County, Texas
                        Trial Court Case No. 2017-00333J


                         MEMORANDUM OPINION

      L.G. appeals from the trial court’s judgment terminating her parental rights to

her daughter, A.S. In four issues, L.G. contends that the evidence is legally and

factually insufficient to support the termination findings under subsections (D), (E),

(N), and (O) of Texas Family Code section 161.001(b)(1), and the finding that

termination of her parental rights is in the child’s best interest. We affirm.
                                     Background

      On December 21, 2016, the Department of Family and Protective Services

received a referral alleging neglectful supervision of one-year old A.S. following an

incident of domestic violence. The report stated that J.S., A.S.’s father, threw L.G.

against a door and repeatedly punched her in the stomach. At the time of the

incident, A.S. was in the living room with L.G.’s friend who called the police. J.S.

was arrested for domestic violence.1

      During the investigation of the referral, J.S. told the Department caseworker

that he and L.G. had “used meth.” On January 10, 2017, the Department asked L.G.

to take a drug test. After taking the test, but before being notified of the results, L.G.

gave power of attorney to her mother, S.P., because she feared the Department would

remove A.S. L.G. tested positive for marijuana.

      S.P. told the caseworker that she offered to pay for L.G. to go to rehab but

L.G. refused. S.P. also stated that she kicked L.G. and J.S. out of her house because

of their drug use and the domestic violence. The Department subsequently learned

that S.P. had prior CPS history and criminal history involving a DUI, felony

endangerment of a child, and driving with a suspended license, and it removed A.S.

from her care.




1
      J.S. had previously been convicted of assaulting a family member in 2012.
                                            2
      On January 23, 2017, the Department filed an Original Petition for Protection

of a Child for Conservatorship and for Termination in Suit Affecting the

Parent-Child Relationship. The trial court signed an order granting the Department

emergency temporary managing conservatorship of A.S. that same day.

      On February 1, 2017, the trial court granted J.S. community supervision in

connection with his assault of L.G.

      On February 2, 2017, the trial court held an adversary hearing at which L.G.

and J.S. appeared. The court found that (1) there was a danger to the physical health

or safety of A.S. caused by an act or failure to act of the person entitled to possession;

(2) an urgent need for A.S.’s protection requiring the immediate removal of A.S; and

(3) notwithstanding reasonable efforts to eliminate the need for removal, a

substantial risk of continuing danger if the child returned home. The court continued

the Department’s temporary managing conservatorship of A.S. and set a status

hearing for March 21, 2017. The court also ordered L.G. and J.S. to submit to drug

testing. Both parents tested positive for amphetamine, methamphetamine, and

marijuana.

      The Department created family service plans for L.G. and J.S. L.G.’s service

plan, which reflected that the parents had a prior open family-based safety services

plan shortly after A.S. was born, noted that L.G. seemed to take the allegations

underlying A.S.’s removal less seriously than the Department and that she exhibited

                                            3
a lack of attachment to A.S. The plan also noted that, as of February 21, 2017,

neither parent had contacted the Department regarding A.S.’s well-being and or

appeared at their scheduled permanency conference on February 16, 2017. The

service plan’s stated goals were that L.G. demonstrate (1) an ability to change the

pattern of the behavior that resulted in the abuse/neglect; (2) an ability to provide

basic necessities for A.S.; and (3) an acceptance of her responsibility as a parent.

L.G.’s plan required her to (1) maintain monthly contact with her caseworker; (2)

participate in all recommended services, permanency conferences, family visits, and

court hearings; (3) submit to random urinalysis tests; (4) participate in a drug and

alcohol assessment and follow related recommendations; (5) participate in parenting

classes and domestic violence classes; (6) maintain stable employment and housing;

and (7) participate in a psychosocial evaluation.

      On March 21, 2017, the trial court held a status hearing. Neither L.G. nor J.S.

appeared at the hearing. At the conclusion of the hearing, the trial court signed an

order finding the parents’ service plans, with a stated goal of returning the child, to

be reasonable and tailored to address the specific issues identified by the

Department, and the trial court approved the services plans. The same day, the trial

court ordered L.G. to submit to drug testing. L.G. tested positive for marijuana,

amphetamine, and methamphetamine.




                                          4
      On May 18, 2017, the National Screening Center issued a letter stating that

L.G. had been ordered to provide samples for drug testing but she walked out before

the sample could be collected, which is considered a “refusal/positive test.”

      On May 22, 2017, A.S.’s foster parents filed a petition to intervene in the

Department’s suit, seeking to adopt A.S.

      On July 6, 2017, the trial court conducted a permanency hearing. Neither L.G.

nor J.S. appeared in person. Following the hearing, the trial court signed an order

finding that neither parent had demonstrated adequate and appropriate compliance

with the service plan. The court’s order further stated that the service plan and/or

permanency progress report on file represented the actions the court required for the

parents to regain custody. The trial court ordered that S.P. and A.W.P., the maternal

grandparents, submit to a home study to be conducted within two weeks.

      On December 18, 2017, the trial court revoked J.S.’s community supervision

after it found that he had violated the terms and conditions of his community

supervision by failing to refrain from engaging in criminal activity and sentenced

him to three years’ confinement.      On April 23, 2018, L.G. was arrested for

prostitution and possession of a controlled substance.

      On May 4, 2018, the Department filed its permanency report with the trial

court. The report stated that L.G. contacted the Department and said that she would

like to work services. As of the date of the report, L.G. had not started any of the

                                           5
services on her family service plan and had attended only three of the six scheduled

parent/child visits. The report noted that on April 24, 2017, L.G. “came into the

agreement with the agency that the primary goal of unrelated adoption would be in

the best interest of [A.S.].” The report further noted that L.G. “stated that she will

relinquish her rights if she needs to for the best interest of [A.S.]” and that “if [A.S.]

will be adopted she would like for the current caregivers to do so.” The report stated

that A.S. “is doing really well in her current placement” and “has developed a strong

bond with her current foster family” with whom she was placed on January 20, 2017.

The report also noted that the Wellness Counseling Center, which administers the

required drug assessments listed in her family plan, had attempted to contact L.G.

eight times.

      On June 6, 2018, the court held a permanency hearing at which L.G. did not

appear.   The trial court found that L.G. had not demonstrated adequate and

appropriate compliance with her service plan.

      Trial began on July 9, 2018. Neither L.G. not J.S. appeared. The intervening

parties—the foster parents and A.S.’s maternal grandparents—advised the court that

they had reached an agreement involving visitation with A.S. in the event that L.G.’s

and J.S.’s parental rights were terminated. The trial court informed the parents’

attorneys that while they had received information that their clients might want to




                                            6
relinquish their parental rights to A.S., the trial court would give them only two

weeks to procure those relinquishments; if they did not, the trial would proceed.

       On August 7, 2018, the trial resumed. Neither L.G. nor J.S. appeared. Prior

to calling its first witness, the Department introduced numerous exhibits, which the

trial court admitted, including L.G.’s family service plan, criminal history, and drug

test results.

       Claudia Riggins, a Department conservatorship caseworker, testified that A.S.

came into the Department’s care because of L.G.’s drug use and domestic violence.

Riggins testified that, once conservatorship began, L.G. and J.S. were scheduled for

drug tests, their family service plans were created, and their visitation schedules set

up. Despite the Department’s multiple attempts to contact L.G. and mailing her

family service plan to her, LG. stopped replying to all communications from the

Department and no longer attended visitation with A.S. Riggins testified that, in

February 2017, L.G. tested positive for methamphetamine, marijuana, marijuana

metabolite, and amphetamine, and in, March 2017, she again tested positive for

methamphetamine, marijuana, and marijuana metabolite.

       Riggins testified that the Department’s file did not include any certificate of

completion for any services by L.G. She testified that although L.G. was initially

scheduled for weekly visits with A.S., the visits were changed to monthly visits

because L.G. had cancelled a majority of them. Riggins testified that L.G. attended

                                          7
only two of her eight scheduled visits with A.S. Riggins stated that the Department

was asking the court to terminate L.G.’s parental rights because she did not complete

any of the items of her family service plan, and she was arrested during the pendency

of the case. She further testified that L.G.’ actions created a dangerous and unstable

environment for A.S. Riggins stated that L.G. had provided a few outfits and a

couple of toys at a couple of her visits with A.S.

      Riggins testified that A.S. was doing very well in her current placement and

was very close to her foster parents as well as their sons. Riggins stated that A.S.

calls her foster parents “mom” and “dad” and interacts with the sons like siblings.

A.S. does gymnastics and appears very happy with her foster family. Riggins

testified that the foster parents have demonstrated an ability to provide a safe and

stable home for A.S. now and in the future. She stated that neither L.G. nor J.S. has

demonstrated that they could provide a safe and stable environment for A.S. Riggins

stated that she believed that termination of L.G.’s and J.S.’s parental rights were in

A.S.’s best interest.

      On cross-examination, Riggins testified that the case had begun in October

2015, shortly after A.S. was born, with a family-based safety services plan. Riggins

testified that L.G. successfully worked her services in the family-based case which

enabled A.S. to stay with her until the current case was filed in January 2017.

Riggins stated that L.G. had expressed a desire to relinquish her parental rights on

                                          8
and off throughout the pendency of the case but never executed a written

relinquishment.

      Carrie Hendricks-Helm, the advocacy coordinator, testified that Child

Advocates supported the Department’s request to terminate the parental rights of

both L.G. and J.S. because the parents had demonstrated an inability to care for A.S.

Hendricks-Helm stated that she visited the foster family monthly and that A.S. was

very bonded with her foster family with whom she had spent the majority of her

young life. She testified that A.S. participated in activities such as gymnastics and

that she enjoyed going to see her brothers play baseball.

      On cross-examination, Hendricks-Helm testified that the last time she saw

L.G. was at a family visit with A.S. She testified that L.G. used a lot of vulgar

language during her visit and had to be told by the monitor to stop. She further

testified that A.S. was not comfortable with L.G. and did not appear bonded with

her, and that A.S. mostly sat with her maternal grandmother.

      The foster mother testified that A.S. has been living with her family for sixteen

months and has bonded with her sons whom A.S. calls her “bubbies.” She testified

that A.S. takes a gymnastics class and will take a dance class in the fall. The foster

mother testified that she and her husband wish to adopt A.S.

      At the conclusion of trial, the Department requested that the foster parents be

named as joint sole managing conservators and A.S.’s maternal grandparents be

                                          9
named non-parent possessory conservators. The Department requested that L.G.’s

parental rights be terminated based on subsections (D), (E), (N), and (O) of Texas

Family Code section 161.001(b)(1), and that J.S.’s parental rights be terminated on

based on subsections (D), (E), (N), (O), and (Q). The Department also asked that

the visitation schedule that was outlined at the July 9, 2018 hearing be memorialized

in the order.

      The trial court found clear and convincing evidence supporting (1)

termination of L.G.’s parental rights to A.S. under subsections (D), (E), (N), and (O),

(2) termination of J.S.’s parental rights under subsections (D), (E), (N), (O), and (Q),

and (3) a finding that termination of L.G.’s and J.S.’s parental rights was in the best

interest of the child. The trial court named the foster parents as joint sole managing

conservators and A.S.’s maternal grandparents as non-parent conservators. The trial

court signed a final decree of termination on October 11, 2018. This appeal

followed.

                                      Discussion

      On appeal, L.G. challenges the legal and factual sufficiency of the evidence

to support the predicate findings supporting termination under subsections (D), (E),

(N), and (O) of Texas Family Code section 161.001(b)(1). She also challenges the

legal and factual sufficiency of the evidence supporting the trial court’s best interest

finding under section 161.001(b)(2).

                                          10
       A. Burden of Proof and Standard of Review

       Protection of the best interest of the child is the primary focus of the

termination proceeding in the trial court and our appellate review. See In re A.V.,

113 S .W.3d 355, 361 (Tex. 2003). A parent’s right to the “companionship, care,

custody, and management” of his or her child is a constitutional interest “far more

precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59

(1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly

scrutinize termination proceedings and strictly construe the involuntary termination

statutes in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

       In a case to terminate parental rights under section 161.001 of the Family

Code, the Department must establish, by clear and convincing evidence, that (1) the

parent committed one or more of the enumerated acts or omissions justifying

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

ANN. § 161.001(b). Clear and convincing evidence is “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.” Id. § 101.007; In re J.F.C.,

96 S.W.3d 256, 264 (Tex. 2002). “Only one predicate finding under section

161.001[(b)](1) is necessary to support a judgment of termination when there is also

a finding that termination is in the child’s best interest.” In re A.V., 113 S.W.3d at

362.

                                          11
      When reviewing the legal sufficiency of the evidence in a case involving

termination of parental rights, we determine whether the evidence is such that a

factfinder could reasonably form a firm belief or conviction that there existed

grounds for termination under section 161.001(b)(1) and that termination was in the

best interest of the child. See TEX. FAM. CODE § 161.001(b)(1), (2); In re J.F.C., 96

S.W.3d at 266. In doing so, we examine all evidence in the light most favorable to

the finding, assuming that the “factfinder resolved disputed facts in favor of its

finding if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d at 266. We

must also disregard all evidence that the factfinder could have reasonably

disbelieved or found to have been incredible. Id.

      When conducting a factual sufficiency review, 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 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. We give due deference to the factfinder’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 factfinder is the sole arbiter when

assessing the credibility and demeanor of witnesses. Id. at 109.




                                          12
      B. Family Code Section 161.001(1)(O)—Failure to Comply with a Court
         Order

      In her third issue, L.G. contends that the evidence is legally and factually

insufficient to support termination of her parental rights under section

161.001(b)(1)(O).

      For a court to terminate parental rights under subsection (O), the court must

find by clear and convincing evidence that the parent:

      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 § 161.001(b)(1)(O). Texas courts generally take a strict approach

to subsection (O)’s application. In re D.N., 405 S.W.3d 863, 877 (Tex. App.—

Amarillo 2013, no pet.). A parent’s failure to complete one requirement of her

family service plan supports termination under subsection (O). In re J.M.T., 519

S.W.3d 258, 267 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).

      L.G. does not dispute that the Department had temporary managing

conservatorship of A.S. for more than nine months and that the Department removed

A.S. from her care as a result of L.G.’s abuse or neglect of A.S. Rather, L.G.

contends that the trial court gave too much deference to the Department’s “inherently

subjective” determination that she had not complied with the provisions of her

                                         13
family service plan. She argues that if the Department had done a better job of

communicating with her, her parental rights would not have been terminated on this

ground.

       L.G.’s family service plan, which was admitted at trial, required her to

maintain monthly contact with her caseworker and participate in all recommended

services, permanency conferences, family visits, and court hearings. L.G. also had

to submit to random urinalysis tests, participate in a drug and alcohol assessment

and follow related recommendations, participate in parenting classes and domestic

violence classes, maintain stable employment and housing, and participate in a

psychosocial evaluation.

       The trial court’s orders following the three permanency hearings held in this

case show that L.G. did not appear for any of the hearings. L.G. also did not appear

at trial on July 9, 2018, or when trial resumed on August 7, 2018. Riggins testified

that L.G. attended only two of her eight scheduled visits with A.S. The record also

shows that L.G. had been ordered to provide samples for drug testing on May 18,

2017, but that she walked out before the samples could be collected. Riggins

testified that L.G. had not completed any of the items of her family service plan by

the time of trial.

       The evidence conclusively showed that L.G. did not comply with the

requirements of her court-ordered service plan. See In re M.C.G., 329 S.W.3d 674,

                                         14
675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (determining that parent’s

failure to complete one requirement of her service plan supports termination); In re

J.S., 291 S.W.3d 60, 67 (Tex. App.—Eastland 2009, no pet.) (“Despite [parent]’s

achievement of some of the plan’s goals, the evidence establishes that other

requirements of the plan were not achieved.”). Moreover, the trial court did not need

to rely on the Department’s determination in this regard because the record shows

that L.G. failed to appear at each of the permanency hearings, as reflected in the trial

court’s orders, and did not appear at trial. With regard to L.G.’s assertion that the

Department did not do an adequate job communicating with her, Riggins testified

that the Department made numerous attempts to contact L.G. and mailed a family

service plan to her but she stopped replying to all communications from the

Department.

      Reviewing all the evidence in the light most favorable to the trial court’s

finding, we conclude that a reasonable factfinder could have formed a firm belief or

conviction as to the truth of the termination findings under subsection (O). We

further conclude that, in light of the entire record, any “disputed evidence that a

reasonable fact finder could not have credited in favor of the endangerment findings

is not so significant that a fact finder could not reasonably have formed a firm belief

or conviction” as to the truth of these termination findings. See In re H.R.M., 209

S.W.3d at 108. Accordingly, the evidence is both legally and factually sufficient to

                                          15
support the termination findings under Family Code Section 161.001(b)(1)(O).2 We

overrule L.G.’s third issue.

       C. Best Interest of the Child

       In her fourth issue, L.G. contends that the evidence is legally and factually

insufficient to support the trial court’s finding that termination of her parental rights

is in A.S.’s best interest.

       There is a strong presumption that the best interest of a child is served by

keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]

2012, no pet.). 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 § 263.307(a).

       Courts may consider the following non-exclusive factors in reviewing the

sufficiency of the evidence to support the best interest finding: the desires of the

child; the present and future physical and emotional needs of the child; the present

and future emotional and physical danger to the child; the parental abilities of the

persons seeking custody; the programs available to assist those persons seeking



2
       Having determined that the evidence is sufficient to support the trial court’s finding
       on this statutory ground, we need not consider whether the evidence would support
       subsections (D), (E), or (N), the other predicate grounds for termination challenged
       in L.G.’s first and second issues. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)
       (affirming termination decree based on one predicate without reaching second
       predicate found by the trier of fact and challenged by parent).

                                             16
custody in promoting the best interest of the child; the plans for the child by the

individuals or agency seeking custody; the stability of the home or proposed

placement; acts or omissions of the parent which may indicate the existing parent-

child relationship is not appropriate; and any excuse for the parent’s acts or

omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). As noted, this list

of factors is not exhaustive, and evidence is not required on all of the factors to

support a finding that terminating a parent’s rights is in the child’s best interest. Id.;

In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting

termination under one of the grounds listed in section 161.001(1) 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 17, 28 (Tex. 2002) (holding same evidence may be

probative of both section 161.001(1) grounds and best interest).

      In addition, the Texas Family Code sets out factors to be considered in

evaluating the parent’s willingness and ability to provide the child with a safe

environment, including: the child’s age and physical and mental vulnerabilities; the

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

counseling services and to cooperate with and facilitate an appropriate agency’s

close supervision; the willingness and ability of the child’s family to effect positive

environmental and personal changes within a reasonable period of time; and whether

the child’s family demonstrates adequate parenting skills, including providing the

                                           17
child with minimally adequate health and nutritional care, a safe physical home

environment, and an understanding of the child’s needs and capabilities. TEX. FAM.

CODE § 263.307(b); In re R.R., 209 S.W.3d at 116.

      1. Desires of the Child

      L.G. argues that, in light of A.S.’s young age, we must presume that she is

bonded with her foster family as well as with L.G. and, therefore, this factor weighs

against termination.

      “When children are too young to express their desires, the factfinder may

consider whether the child has bonded with the proposed adoptive family, are

well-cared for by them, and they have spent minimal time with a parent.” In re S.R.,

452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). 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.). 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.

      A.S. was two years old at the time of trial and, therefore, too young to express

her desires. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st Dist.]

2013, no pet.). There was no evidence that A.S. was bonded with L.G. or that L.G.

was bonded with her child. When the trial began, the court noted that the parents’

                                         18
attorneys had received information that their clients might want to relinquish their

parental rights to A.S. Riggins testified that L.G. had expressed a desire to relinquish

her parental rights on and off throughout the pendency of the case. She also testified

although L.G. was initially scheduled for weekly visits with A.S., the visits were

changed to monthly visits because L.G. had cancelled a majority of them and L.G.

attended only two of her eight scheduled visits with A.S. During one of the visits,

L.G. used vulgar language and had to be told by the monitor to stop. Riggins testified

that A.S. was not comfortable with L.G. during the visit, did not appear bonded with

her, and sat mostly with her grandmother.

      Riggins testified that A.S. was very close to her foster parents as well as their

sons, that A.S. calls her foster parents “mom” and “dad,” and interacted with the

sons like siblings. Hendricks-Helm, the advocacy coordinator, testified that she

visited the foster family monthly and that A.S. was very bonded with the family with

whom she had spent the majority of her young life. The foster mother testified that

A.S. has been living with her family for sixteen months and that A.S. is very bonded

with her family. This evidence supports the trial court’s best interest finding under

the first Holley factor.

      2. Present and Future Physical and Emotional Needs of the Child

      Riggins testified that L.G. had provided a few outfits and a couple of toys

during her visits with A.S. but that L.G. had not demonstrated that she could provide

                                          19
a safe and stable environment for A.S. She testified that the foster parents had

demonstrated an ability to provide a safe and stable home for A.S. currently and in

the future.   Similarly, Henricks-Helm testified that both L.G. and J.S. had

demonstrated an inability to care for A.S. during the pendency of the case. She

testified that A.S. is involved in activities with her foster family, participates in

gymnastics, and enjoys going to see her brothers play baseball. This evidence

supports the trial court’s best interest finding under the second Holley factor.

      3. Present and Future Emotional and Physical Danger to the Child and
         Parents Acts or Omissions

      The third Holley factor is the present and future physical danger to the child.

See Holley, 544 S.W.2d at 371–72. The eighth factor considers acts or omissions of

the parent that indicate the parent-child relationship is improper. See id.

      The evidence shows that the Department first removed A.S. from L.G.’s care

following an incident of domestic violence for which J.S. was arrested. A.S. was

nearby in the living room with L.G.’s friend at the time of the incident. The trial

court heard evidence that this was not the first time that J.S. had engaged in domestic

violence and that he had previously been convicted of violence against a family

member in 2012. S.P. also told the Department caseworker that she kicked L.G. and

J.S. out of her house because of the domestic violence and the parents’ drug use.

      The evidence also shows that L.G. had a pattern of illegal drug use both before

A.S.’s removal and during the pendency of the case. During the investigation of the
                                          20
initial referral, J.S. told the caseworker that he and L.G. had “used meth.” In January

2017, L.G. tested positive for marijuana. In February 2017, she tested positive for

amphetamine, methamphetamine, marijuana, and marijuana metabolite. In March

2017, she tested positive for marijuana, amphetamine, and methamphetamine. In

May 2017, she showed up for a court-ordered drug test but walked out before the

sample could be collected which the testing center considered a refusal/positive test.

As noted above, S.P. told the caseworker that she kicked L.G. and J.S. out of the

house because of the domestic violence and their drug use. She also told the

caseworker that she offered to pay for L.G. to go to rehab but that L.G. refused. The

trial court also heard evidence that in April 2018, while this case was pending, L.G.

was arrested for prostitution and possession of a controlled substance.

      A parent’s past conduct is probative of her future conduct when evaluating

the child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San

Antonio 2013, no pet.). L.G.’s inability to refrain from drug use during the pendency

of the case, as well as her arrest for possession of a controlled substance, reflects an

inability to perceive the danger that parental drug use would pose to a child. See In

re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *6 (Tex. App.—Houston [1st

Dist.] 2012, pet. denied) (mem. op.) (concluding that father’s concealment of drug

use and continued relationship with mother who abused drugs demonstrated father’s

inability to perceive danger that parental drug use posed to child). Further, the

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evidence was sufficient to show that L.G. endangered A.S. by remaining with J.S.—

who had been previously convicted of assaulting a family member, admitted his drug

use to the Department, and tested positive on his court-ordered drug test—thereby

exposing A.S. to an unsafe environment. See In re M.M.M., No. 01-17-00980-CV,

2018 WL 1954178, at *12 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (mem.

op.) (“[E]vidence of a child’s exposure to domestic violence is supportive of an

endangerment finding.”); In re M.S.L., No. 14-14-00382-CV, 2014 WL 5148157, at

*6-7 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no pet.) (mem. op.)

(concluding father’s crimes, including drug-related offenses and domestic violence

occurring before and after children’s births, supported trial court’s best interest

finding); L.B. v. Tex. Dep’t of Family & Protective Servs., No. 03-09-00429-CV,

2010 WL 1404608, at *5 (Tex. App.—Austin Apr. 9, 2010, no pet.) (mem. op.)

(concluding exposing child to domestic violence and drug use supports factfinder’s

conclusion that mother engaged in course of conduct that endangered children).

      This evidence supports the trial court’s best interest finding under the third

and eighth Holley factors.

      4. Parental Abilities of Individuals Seeking Custody, Plans for the Child,
         and Stability of Home or Placement

      The fourth Holley factor is the parental abilities of the individuals seeking

custody. See Holley, 544 S.W.2d at 371–72. The sixth factor considers the plans



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for the child by the individuals or agency seeking custody. See id. The seventh

factor looks at the stability of the home or proposed placement. See id.

      Among other tasks, L.G.’s service plan required her to participate in parenting

classes. Two of the stated goals of her service plan were that she demonstrate an

ability to provide basic necessities for A.S. and an acceptance of her responsibility

as a parent. The evidence shows that L.G. did not attend a parenting class. Riggins

testified that L.G. provided a few outfits and a couple of toys at two of her visits with

A.S. “but that was it.” L.G. attended only two of her eight scheduled visits with A.S.

and, during one of them, she used vulgar language and had to be told to stop by the

monitor. On L.G.’s service plan, the caseworker noted that L.G. seemed to take the

allegations underlying A.S.’s removal less seriously than the Department. L.G. also

did not maintain contact with the Department to ensure the well-being of A.S. L.G.’s

continued drug use during the case, as well as her arrest for prostitution and

possession of a controlled substance, also demonstrate a lack of parental ability and

acceptance of her responsibilities as a parent. See In re K.S., 420 S.W.3d 852, 855

(Tex. App.—Texarkana 2014, no pet.) (noting parental drug abuse is reflective of

poor judgment and is also factor to be considered in best interest analysis); Wischer

v. Tex. Dep’t of Family & Protective Servs., No. 03-12-00165-CV, 2012 WL

3793151, at *7 (Tex. App.—Austin Aug. 29, 2012, no pet.) (mem. op.).




                                           23
      Riggins and Hendricks-Helm testified that the foster parents have

demonstrated an ability to care for A.S. during the pendency of the case. A.S.

considers her foster parents to be her mom and dad and her foster brothers to be her

siblings, and she participates in gymnastics and activities with the family. The

evidences shows that A.S. is doing very well with her foster family and that the

parents wish to adopt her. There was no evidence at trial regarding L.G.’s plans for

A.S. should she be returned to her care.

      Riggins and Hendricks-Helm also testified that the foster parents

demonstrated an ability to provide a safe and stable environment for A.S. currently

and in the future, whereas L.G. had not shown an ability to provide a safe and stable

home for her child. The trial court heard testimony that A.S. was happy in her foster

family and very bonded to her foster parents and their sons with whom she had spent

the majority of her young life. The trial court also heard evidence that L.G. had been

arrested for prostitution and possession only a few months before trial. This

evidence supports the trial court’s best interest finding under the fourth, sixth, and

seventh Holley factors.

      Viewing all the evidence in the light most favorable to the judgment, we

conclude that a factfinder could have formed a firm belief or conviction that

termination of L.G.’s parental rights is in A.S.’s best interest. See J.F.C., 96 S.W.3d

at 265–66. In light of the entire record, the disputed evidence that a reasonable

                                           24
factfinder could not have credited in favor of the best interest finding is not so

significant that a fact finder could not reasonably have formed a firm belief or

conviction that termination of L.G.’s parental rights is in her child’s best interest.

See In re H.R.M., 209 S.W.3d at 108. After considering the relevant factors under

the appropriate standards of review, we hold the evidence is legally and factually

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

relationship is in the best interest of the child. Accordingly, we overrule L.G.’s

fourth issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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