                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               ____________________

                                NO. 09-18-00295-CV
                               ____________________

                IN THE INTEREST OF A.M. AND B.T.
__________________________________________________________________

             On Appeal from the County Court at Law No. 3
                      Montgomery County, Texas
                   Trial Cause No. 17-05-05542-CV
__________________________________________________________________

                           MEMORANDUM OPINION

      Appellant N.B. appeals from an order terminating her parental rights to her

minor children, A.M. and B.T. In issues one through three, N.B. contends that the

evidence is legally and factually insufficient to support the trial court’s decision to

terminate her parent-child relationship with A.M. and B.T. See Tex. Fam. Code Ann.

§ 161.001(b)(1)(D), (E), (O) (West Supp. 2018). In issue four, N.B. argues that the

evidence is legally and factually insufficient to support the trial court’s best-interest

finding. See id. § 161.001(b)(2) (West Supp. 2018). We affirm the trial court’s

judgment.



                                           1
                                 BACKGROUND

      In May 2017, the Department of Family and Protective Services (“the

Department”) filed a petition for protection of a child, for conservatorship, and for

termination in a suit affecting the parent-child relationship (SAPCR). In the SAPCR,

the Department sought to terminate N.B.’s parental rights, alleging that N.B. had

committed seven predicate statutory grounds that justified terminating her parental

relationship with A.M. and B.T. In the affidavit in support of removal, Alison

Adams, a representative of the Department, averred that in April 2017, the

Department received a referral involving the neglectful supervision of A.M. and B.T.

According to Adams, the Department received a report that N.B. was using

methamphetamines while caring for the children. Further, law enforcement officers

had found fifty-four grams of methamphetamines on a male friend of N.B.’s when

they arrested him for assault with a deadly weapon.

      Adams further averred that in May 2017, the Department received a second

referral regarding the neglectful supervision of A.M., which indicated that a man,

who was under the influence and had methamphetamines in his possession, took

A.M. to the emergency room alleging that she had been sexually assaulted.

According to Adams’s affidavit, A.M. presented at the hospital with a diaper rash

and several bug bites, was agitated, and had not been fed all day. Adams claimed

                                         2
that when N.B. arrived at the hospital, she appeared to be very skinny, not well kept,

and under the influence of drugs. N.B. refused to take a drug test. Based on the

possibility that A.M. had been sexually assaulted, along with N.B.’s history of using

drugs, refusing drug tests, fleeing from the Department, and leaving the children in

the care of people who use drugs, Adams maintained that the Department needed to

take emergency custody of the children.

      The trial court named the Department as the temporary managing conservator

of the children and scheduled a hearing on May 16, 2017. N.B. was ordered by the

court to comply with the Department’s service plan and to provide an appropriate

home, maintain employment, submit to a psychological or psychiatric examination,

attend counseling sessions, attend parenting classes and parent meetings, submit to

a drug and alcohol dependency assessment, and submit to random drug testing. The

record shows that N.B. failed to demonstrate adequate and appropriate compliance

with her service plan. The record further shows that on May 10, 2018, N.B. tested

positive for amphetamines, and on May 24, 2018, N.B. failed to submit to a random

drug test.

      The case proceeded to trial. Andrea Eford, a caseworker with the Department,

testified that she was assigned to N.B.’s case in May 2017, which was shortly after

the trial court named the Department as the children’s temporary managing

                                          3
conservator. Eford explained that the Department became involved with the children

after the incident at the hospital. Eford also explained that the Department was

concerned about N.B.’s drug use.

      Eford testified that N.B. had failed to complete her service plan by not

providing a certificate for a parent collaboration group or any pay stubs showing

proof of employment. Eford explained that N.B. did not complete the

recommendation in her psychological evaluation, which required that she attend at

least eight individual counseling sessions. Eford testified that N.B. also failed to

participate in intensive outpatient group therapy, as required by her drug and alcohol

assessment. Eford further testified that the Department had requested that N.B.

submit to a drug test at least twice per month, but N.B. only tested one time in May

2018, when she tested positive for methamphetamine. According to Eford, N.B. had

not provided any financial support for the children in the past year.

      Eford testified that the children have been together in their current placement

with prospective adoptive parents since June 2017, and the children are doing well.

Eford requested that the trial court appoint the Department as the permanent

managing conservator of the children and explained that the Department’s goal was

adoption. Eford testified that it was in the children’s best interest for N.B.’s parental

rights to be terminated because N.B. failed to do what was necessary to obtain the

                                           4
return of the children. Eford believed that N.B. understood her service plan

requirements, including periodic drug testing. Eford explained that she was

concerned that N.B. had refused to submit to drug testing because N.B. had recently

admitted to using drugs and N.B. might continue to use drugs. According to Eford,

due to N.B.’s recent drug use and because N.B. has failed to show that she is capable

of providing a safe, stable, and drug-free environment for the children, termination

was in the children’s best interest.

       Charlotte Drumm, the CASA volunteer assigned to the case, testified that the

children were doing very well in their placement and that it was in the children’s

best interest for N.B.’s parental rights to be terminated. Drumm explained that she

had repeatedly discussed with N.B. the importance of working her service plan and

submitting to drug testing, and Drumm was very concerned that N.B. had failed to

do so. Drumm testified that she did not believe that N.B. had any impediments that

prevented her from completing the service plan. According to Drumm, it was in the

best interest of the children to stay in their current placement with the foster family.

      Christi Camarata, the children’s foster mother, testified that B.T. and A.M.

had been in her care for approximately one year, and at the time of trial, A.M. was

eighteen months old and B.T. was three years old. Camarata testified that A.M.

initially had a “pretty bad[]” diaper rash and it took a couple of months for it to heal.

                                           5
Camarata explained that A.M. was prone to diaper rashes due to food allergies.

Camarata further testified that she and her husband were prepared to provide the

children with a permanent home. According to Camarata, the children were doing

very well and developing normally.

      N.B. testified that she was living with her grandparents when the Department

removed A.M. and B.T. N.B. testified that J.T., a friend of N.B.’s sister, kidnapped

A.M. and took her to the emergency room and reported that she had crabs. According

to N.B., when the incident occurred, A.M. was seven months old, A.M. was sleeping

in a room with N.B.’s mother, N.B. was sleeping in a separate room with B.T., and

N.B. had been treating A.M. for diaper rash. N.B. explained that she and the children

were spending the night at a friend’s house when J.T. took A.M. while N.B. was

sleeping, and N.B. did not give J.T. permission to take A.M. N.B. explained that she

received a call from the hospital and was informed that J.T. had taken A.M. and that

he had drugs in his possession, and N.B. filed a police report. N.B. testified that she

did not associate with J.T. and had only known him for a few months. N.B. was

concerned that J.T. had done something inappropriate with A.M. because he was

using drugs and has mental issues. Due to her concerns, N.B. requested that the

hospital conduct a SANE examination. N.B. denied being on drugs when she arrived

at the hospital to get A.M.

                                          6
      N.B. testified that she was ordered to complete a service plan and that she had

certificates for some of the required classes. N.B. explained that she attended a

parenting class and the parent collaboration group, completed a substance abuse

assessment, and started her drug and alcohol abuse classes. She admitted that she

had failed to appear for random drug testing. N.B. testified that she did not have a

reason or an excuse for why she failed to submit to the drug tests, but she claimed

that she did not understand that she was required to do so. N.B. explained that her

unplanned pregnancy had slowed her progress of completing her service plan. N.B.

testified that she did not complete her drug and alcohol abuse treatment due to delays

and scheduling conflicts. According to N.B., she took two psychological

evaluations, but she did not receive a diagnosis, any recommendations, or

medication for mental health issues. N.B. testified that she completed a psychiatric

exam and a psychosocial evaluation, and within the past month she had started

therapy and a program for chemical dependency. N.B. explained that she was not

aware that her service plan was court ordered until the beginning of 2018, and she

did not fully understand the Department’s concerns.

       Regarding her use of drugs, N.B. testified that she has “experienced[]”

methamphetamine in the past three years. N.B. testified that the Department had

investigated four allegations concerning her use of methamphetamine, but she

                                          7
denied using methamphetamine while caring for her children or when she was

pregnant. When questioned about her positive drug test in May 2018, N.B. explained

that she gave birth on April 23 and used methamphetamine in May. N.B. also

explained that she had eliminated people from her life, including J.T., so she could

get her children back.

      N.B. explained that she was still living in her maternal grandparents’ home

and was working as a home health provider. According to N.B., she attended all the

scheduled visitations with her children and provided them with financial support by

buying them items they would need when they returned home. N.B. testified that she

was able to provide support and a home for her children, and she requested that the

trial court give her an extension and not terminate her rights.

      Yvonne McWhorter, N.B.’s maternal grandmother, testified that N.B. is not

currently living with her, but had lived with her “off and on[]”about a year ago.

Yvonne testified that the children did not have rooms in her home, she did not know

where N.B. currently lived, and she was unsure if N.B. was still working. Yvonne

explained that she had no concerns about N.B.’s parenting ability. Yvonne further

testified that she has never known N.B. to use illegal substances, and she was

surprised that N.B. tested positive for methamphetamine. According to Yvonne, it is




                                          8
not in the best interest of the children for N.B.’s rights to be terminated because the

children love N.B., and N.B. has always been good to her children.

      Monica McWhorter, N.B.’s aunt and Yvonne’s daughter, testified that she

saw N.B. and the children about once per month at Yvonne’s house. Monica testified

that she thought N.B. still lived with Yvonne. According to Monica, N.B. worked in

home health, but Monica did not know where N.B. was employed. Monica testified

that she did not have any concerns about N.B.’s parenting abilities. Monica

explained that she was surprised that N.B. had a positive drug test because she

thought N.B. was doing better. Monica also explained that she never thought N.B.

was on drugs when she saw N.B. with the children. Although Monica testified that

she was willing to have the children placed with her, she admitted that she had not

provided the necessary information to be considered for placement, because she had

“backed off” when she thought the children were going to be returned to N.B.

Monica further testified that she had not seen the children since they had been placed

with their foster family.

      The trial court found that clear and convincing evidence supported three

predicate statutory grounds for terminating N.B.’s parental rights and that

termination of N.B.’s parental rights is in the best interest of A.M. and B.T. See Tex.




                                          9
Fam. Code Ann. §§ 161.001(b)(1)(D), (E), (O), (2). The trial court rendered a final

judgment that terminated N.B.’s parental rights to A.M. and B.T. N.B. appealed.

                                     ANALYSIS

      In issues three and four, N.B. argues that the evidence is legally and factually

insufficient to establish that she failed to comply with the provisions of a court order

that specifically established the actions necessary for N.B. to obtain the return of her

children, and that terminating her parental rights would be in the best interest of

A.M. and B.T. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (2). N.B. argues that

there was no evidence showing that she failed to follow the provisions of a court

order or that her children were in danger when the Department took emergency

possession of them. ( The Department maintains that there is clear and convincing

evidence to support termination of N.B.’s parental rights. ( Because issues three and

four are dispositive of the appeal, we address them first. See Tex. R. App. P. 47.1.

      Under legal sufficiency review, we review all the evidence in the light most

favorable to the finding to determine whether “a reasonable trier of fact could have

formed a firm belief or conviction that its finding was true.” In the Interest of J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could and we disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

                                           10
incredible. Id. If no reasonable factfinder could form a firm belief or conviction that

the matter that must be proven is true, the evidence is legally insufficient. Id.

      Under factual sufficiency review, we must determine whether the evidence is

such that a factfinder could reasonably form a firm belief or conviction about the

truth of the Department’s allegations. Id. We give due consideration to evidence that

the factfinder could reasonably have found to be clear and convincing. Id. We

consider whether disputed evidence is such that a reasonable factfinder could not

have resolved the disputed evidence in favor of its finding. Id. 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, the evidence is factually insufficient. Id.

      The decision to terminate parental rights must be supported by clear and

convincing evidence, i.e., “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); see In the

Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the

parent committed one or more predicate acts or omissions and that termination is in

the child’s best interest. See Tex. Fam. Code Ann. § 161.001; see also In the Interest

of J.L., 163 S.W.3d at 84. We will affirm a judgment only if any one of the alleged

                                            11
grounds is supported by legally and factually sufficient evidence, and the best

interest finding is also supported by legally and factually sufficient evidence. See In

the Interest of A.V. and J.V., 113 S.W.3d 355, 362 (Tex. 2003). Section

161.001(1)(O) allows for termination of parental rights if the trial court finds by

clear and convincing evidence that the parent has failed to comply with the

provisions of a court order that specifically established the actions necessary for the

parent to obtain the return of a child who has been in the permanent or temporary

managing conservatorship of the Department for not less than nine months as a result

of the child’s removal from the parent under chapter 262. Tex. Fam. Code Ann. §

161.001(1)(O).

      The Department may take possession of a child without a court order if on

information furnished by another that has been corroborated by personal knowledge

of facts and all of which are taken together would lead a person of ordinary prudence

and caution to believe that there is an immediate danger to the physical health or

safety of the child; or the child is in the possession of a parent or person who is

currently using a controlled substance as defined by Chapter 481 of the Texas Health

and Safety Code, and the use constitutes an immediate danger to the physical health

or safety of the child. Id. § 262.104(a)(2), (5) (West Supp. 2018). If the Department

petitions for possession of a child without prior notice and a hearing, the petition

                                          12
must include an affidavit sworn by a person with personal knowledge stating

sufficient facts to satisfy a person of ordinary prudence and caution that, among other

things, “there is an immediate danger to the physical health or safety of the child or

the child has been a victim of neglect or sexual abuse[.]” Id. § 262.101(1) (West

Supp. 2018). Under chapter 262’s removal standards, “‘abuse or neglect of the child’

necessarily includes the risks or threats of the environment in which the child is

placed.” In the Interest of E.C.R, 402 S.W.3d 239, 248 (Tex. 2013). This also

includes “the harm suffered or the danger faced by other children under the parent’s

care.” Id. If a parent has neglected or otherwise endangered her child’s physical

health or safety, such that initial and continued removal of the child are appropriate,

the child has been removed under chapter 262 for the abuse or neglect of the child.

Id.; see Tex. Fam. Code Ann. §§ 161.001(1)(O), 262.104(a)(2), (5).

      Here, the Department’s evidence in support of removal included Adams’s

affidavit showing that the Department received a referral regarding the neglectful

supervision of A.M. and B.T. by N.B., who allegedly used methamphetamine while

caring for her children. In her affidavit, Adams swore that it was reported to her that

law enforcement had responded to a home and found fifty-four grams of

methamphetamines on N.B.’s male friend, who was arrested. According to Adams’s

affidavit, three days after the first referral, the Department received a second referral

                                           13
regarding the neglectful supervision of six-month old A.M. by N.B. and N.B.’s

friend, J.T., and Adams stated that it was reported that J.T. was high on

methamphetamines when he took A.M. to the hospital. Adams further averred that

when she met N.B. at the hospital, N.B. appeared to be under the influence of some

substance and refused to submit to a drug screen. N.B. also gave conflicting answers

concerning the whereabouts of B.T. Adams’s affidavit concluded that removal was

necessary because the children are at vulnerable ages and unable to protect

themselves and N.B. is unable to appreciate the danger in which she places her

children.

      The evidence and the trial court’s findings establish that A.M. and B.T. were

removed from N.B. under chapter 262 for abuse or neglect, and it is undisputed that

the children were in the Department’s custody for more than nine months after

removal. See In the Interest of E.C.R., 402 S.W.3d 239, 248-49 (Tex. 2013). The

evidence further shows that N.B. failed to demonstrate adequate and appropriate

compliance with her service plan. See In the Interest of J.F.C., 96 S.W.3d at 277.

Eford testified that N.B. had failed to provide an appropriate home and proof of her

employment, attend the required number of counseling sessions as recommended by

her psychological evaluation, participate in intensive outpatient group therapy as

required by her drug and alcohol assessment, and submit to random drug testing.

                                        14
The record shows that N.B. partially complied with some provisions of her service

plan and offered excuses for not complying with others, including claiming that she

did not understand that her plan was court ordered; however, Eford testified that she

believed N.B. understood the services she needed to complete in order to obtain the

return of her children. Drumm also testified that she had repeatedly discussed with

N.B. the importance of working her service plan and submitting to drug testing, and

Drumm explained that she did not believe that N.B. had any impediments that

prevented her from completing her service plan.

      Viewing the evidence in the light most favorable to the trial court’s finding

under subsection 161.001(b)(1)(O), we conclude that the trial court could reasonably

conclude that N.B. failed to comply with the provisions of a court order that

specifically established the actions necessary for N.B. to obtain the return of her

children who had been in temporary managing conservatorship of the Department

for not less than nine months as a result of the children’s removal for the abuse or

neglect. See Tex. Fam. Code Ann. § 161.001(b)(1)(O); In the Interest of J.F.C., 96

S.W.3d at 266. In light of all the evidence presented, the trial court could reasonably

have formed a firm belief or conviction that N.B. failed to comply with the

provisions of a court order that specifically established the actions necessary for N.B.




                                          15
to obtain the return of her children. See Tex. Fam. Code Ann. § 161.001(b)(1)(O);

In the Interest of J.F.C., 96 S.W.3d at 266.

      Regarding the best interest finding, we consider a non-exhaustive list of

factors: (1) desires of the child; (2) emotional and physical needs of the child now

and in the future; (3) emotional and physical danger to the child now and in the

future; (4) parental abilities of the individuals seeking custody; (5) programs

available to assist these individuals to promote the best interest of the child; (6) plans

for the child by these individuals or by the agency seeking custody; (7) stability of

the home or proposed placement; (8) acts or omissions of the parent which may

indicate that the existing parent-child relationship is not proper; and (9) any excuse

for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72

(Tex. 1976); see Tex. Fam. Code. Ann. § 263.307(b) (West Supp. 2018). No

particular Holley factor is controlling, and evidence of one factor may be sufficient

to support a finding that termination is in the children’s best interest. See In the

Interest of A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.). The best

interest determination may rely on direct or circumstantial evidence, subjective facts,

and the totality of the evidence. See In the Interest of N.R.T., 338 S.W.3d 667, 677

(Tex. App.—Amarillo 2011, no pet.). We conclude that the reasons described above

supporting the termination of N.B.’s parental rights under subsection (O) also

                                           16
support the trial court’s best interest finding. See In the Interest of E.C.R., 402

S.W.3d at 249; In the Interest of C.H., 89 S.W.3d 17, 28 (Tex. 2002).

      In regard to the Holley factors, N.B. maintains that there was no evidence

showing that the emergency removal was in the children’s best interest, that N.B.

was unable to provide for her children’s needs at the time of trial or in the future, or

that not having a relationship with her newborn child would not negatively affect the

children. With respect to the best interest finding, the trial court heard testimony that

N.B. had repeatedly refused to submit to drug testing over the past year, tested

positive the same month her case proceeded to trial and only one month after giving

birth, and refused to submit to a random drug test after her positive result. The trial

court heard N.B. admit that she used methamphetamine the month after she gave

birth to her new child. The trial court also heard testimony that N.B. failed to

participate in intensive outpatient group therapy, and that the Department was

concerned about N.B.’s continued drug use.

      The trial court heard conflicting testimony regarding whether N.B. was able

to provide a home and support for the children. Although N.B. testified that she was

living in Yvonne’s home, Yvonne testified that N.B. was not currently living with

her and the children did not have rooms in her home. N.B. failed to provide proof of

employment, and N.B.’s family did not know where N.B. was working. Although

                                           17
N.B. testified that she could support the children, the trial court heard testimony that

N.B. had not provided any financial support for the children in the past year.

      The trial court heard testimony that the children had been doing well in their

current placement for the past year, and the children’s foster parents were willing to

adopt them. The trial court heard testimony that A.M. had food allergies and that it

was in the best interest of the children to stay in their current placement. The trial

court also considered Eford’s testimony that termination was in the children’s best

interest because N.B. had failed to demonstrate that she could provide a safe, stable,

and drug-free environment for the children. Drumm also testified that it was in the

children’s best interest that N.B.’s parental rights be terminated. Although Monica

testified that she was willing to take the children, the trial court heard testimony that

she did not follow up with the Department, and Monica had not seen the children

since they had been placed in foster care.

      The evidence at trial showed that N.B. had been neglectful in her supervision

of the children, and neglect can be just as dangerous to a child as direct physical

abuse. See In re M.C., 917 S.W.2d 268, 270 (Tex. 1996). The trial court heard

testimony that while N.B. did not know J.T. well, N.B. did know that J.T. had mental

issues. The trial court considered N.B.’s testimony that she allowed J.T. to be in

contact with her children despite claiming that she “would never give a man like that

                                           18
consent to take my kid.” Although N.B. claimed that her mother was supervising

A.M. when J.T. took A.M., N.B.’s mother did not testify at trial to corroborate N.B.’s

account of how the incident had occurred. Additionally, N.B. testified that she did

not have a reason or an excuse for why she failed to submit to the drug tests.

      “[T]he prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest.” Tex. Fam. Code Ann. § 263.307(a) (West

Supp. 2018). As the sole judge of the credibility of the witnesses and the weight to

be given to their testimony, the trial court could reasonably conclude that termination

of N.B.’s parental rights was in the best interest of A.M. and B.T. See id. §§

161.001(b)(2), 263.307(a); see also In the Interest of J.F.C., 96 S.W.3d at 266;

Holley, 544 S.W.2d at 371-72. We conclude that the Department established, by

clear and convincing evidence, that N.B. committed the predicate act enumerated in

section 161.001(b)(1)(O) and that termination of N.B.’s parental rights is in the best

interest of A.M. and B.T. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (2); In the

Interest of A.V., 113 S.W.3d at 362. We overrule issues three and four. Having

determined that the evidence is legally and factually sufficient to support termination

under subsection (O), we need not address the sufficiency of the evidence as to

subsections (D) and (E). See In the Interest of A.V., 113 S.W.3d at 362. We overrule




                                          19
issues one and two. Having overruled all of N.B.’s issues on appeal, we affirm the

trial court’s judgment.

      AFFIRMED.

                                            ______________________________
                                                   STEVE McKEITHEN
                                                       Chief Justice

Submitted on October 22, 2018
Opinion Delivered January 10, 2019

Before McKeithen, C.J., Kreger and Horton, JJ.




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