                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                            No. 07-18-00206-CV


                    IN THE INTEREST OF P.L.G. AND H.M.G., CHILDREN

                              On Appeal from the 100th District Court
                                      Childress County, Texas
                     Trial Court No. 10,713, Honorable Stuart Messer, Presiding

                                             August 28, 2018

                                   MEMORANDUM OPINION
                         Before CAMPBELL and PIRTLE and PARKER, JJ.


        “Tricia” appeals the trial court’s order terminating her parental rights to her children,

“Paul” and “Hailey.”1 Tricia asserts the evidence is neither legally nor factually sufficient

to support the trial court’s finding that termination of her parental rights is in the best

interest of the children. We will affirm the trial court’s order.




        1 To protect the children’s privacy, we will refer to the appellant mother as “Tricia,” the father of the

children as “David,” the children as “Paul” and “Hailey,” and the intervenor as “Laura.” See TEX. FAM. CODE
ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b). David’s parental rights were also terminated.
His counsel has filed an Anders brief in a separate appeal in cause number 07-18-00297-CV.
                                        Background


       In May of 2017, the Texas Department of Family and Protective Services filed its

petition for protection, conservatorship, and termination of the parental rights of Tricia and

David as to their children, nine-year-old Paul and eight-year-old Hailey. The children were

removed after the Department received a report that Tricia and David were using

methamphetamine and marijuana while caring for the children.               Tricia and David

submitted to a drug test requested by the Department and both tested positive for

methamphetamine. There were also concerns about the stability of the home because

neither Tricia nor David was employed and they were in the process of being evicted from

their home. Both parents admitted that they were unable to provide for Paul and Hailey

at the time of the removal.


       The Department developed a service plan for Tricia. According to the plan, Tricia

was required to: abstain from the use of illegal drugs; submit to random drug screens;

complete a substance abuse assessment and follow recommendations; maintain safe,

stable housing; maintain stable, verified employment; take parenting classes; complete a

psychological evaluation; participate in Rational Behavior Training (RBT); attend

individual and couple’s counseling; pay child support; and attend visits with Paul and

Hailey.


       Tricia completed a psychological evaluation, RBT, parenting classes, a drug

assessment, and outpatient drug treatment. Tricia did not attend individual or couple’s

counseling and she failed to pay her court-ordered child support. Tricia’s visitation with

Paul and Hailey was suspended in February of 2018 after she refused to submit to



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multiple drug tests. Tricia questioned why the caseworker would send her for a drug test

“that was going to come back dirty.” Tricia spoke with the caseworker on the morning of

trial, but she did not attend the trial.


       Paul and Hailey are placed with Laura, an intervenor in the case. Laura has known

Tricia since Tricia was three years old. Tricia also has another child who lives with Laura.

Laura testified that Tricia has had a substance abuse problem since she was thirteen

years old. According to Laura, Tricia has been addicted to hydrocodone twice and she

has been treated at the methadone clinic. She testified, “As soon as [Tricia] quit the

methadone clinic and got off hydrocodone, she went right back to the crystal meth. She

has never stopped smoking marijuana.” In July 2017, Tricia was arrested for possession

of a dangerous drug and possession of marijuana. Tricia told Laura that “it would be a

cold day in hell before she went to rehab or did another drug test for CPS.”


       Before the Department filed its termination suit, Paul and Hailey frequently stayed

overnight at Laura’s and sometimes they stayed for the weekend. The children are

bonded with Laura and they have asked to remain in her home. Paul has been diagnosed

with autism, oppositional defiant disorder, and attention deficit hyperactivity disorder. He

has had some behavioral issues at school. Laura has worked with the school to address

their concerns about Paul. She also takes Paul to counseling once a week. Paul’s grades

and behavior have significantly improved since he has lived with Laura. Laura plans to

adopt Paul and Hailey and also their half-sibling.


       The trial court terminated Tricia’s parental rights to Paul and Hailey on the grounds

of endangering conditions, endangering conduct, failure to support, failure to comply with



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a court order that established actions necessary to retain custody of the children, and

continuing substance abuse after completion of a substance abuse treatment program.

See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (F), (O), (P) (West Supp. 2017).2 The

court also found that clear and convincing evidence demonstrated that termination was

in the best interest of Paul and Hailey. See § 161.001(b)(2).


                                                Applicable Law


          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, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, 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). However, “the rights of natural

parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to

accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)

(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may

forfeit his or her parental rights by his or her acts or omissions, the primary focus of a

termination suit is protection of the child’s best interests. See id.


          In a case to terminate parental rights by the Department 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. § 161.001(b). Clear


          2   Further references to provisions of the Texas Family Code will be by reference to “section __” or
“§ __.”

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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.” § 101.007 (West 2014); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both

elements must be established, and termination may not be based solely on the best

interest of the children as determined by the trier of fact. Tex. Dep’t of Human Servs. v.

Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—

Amarillo 2009, pet. denied). “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. We will affirm

the termination order if the evidence is both legally and factually sufficient to support any

alleged statutory ground the trial court relied upon in terminating the parental rights if the

evidence also establishes that termination is in the children’s best interest. In re K.C.B.,

280 S.W.3d at 894-95.


                                    Standards of Review


       When reviewing the legal sufficiency of the evidence in a termination case, the

appellate court should look at all the evidence in the light most favorable to the trial court’s

finding “to determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. To give appropriate

deference to the factfinder’s conclusions, we must assume that the factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We

disregard all evidence that a reasonable factfinder could have disbelieved or found to

have been not credible, but we do not disregard undisputed facts. Id. Even evidence

that does more than raise surmise or suspicion is not sufficient unless that evidence is

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capable of producing a firm belief or conviction that the allegation is true. In re K.M.L.,

443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we

determine that no reasonable factfinder could have formed a firm belief or conviction that

the matter that must be proven was true, then the evidence is legally insufficient, and we

must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).


       In a factual sufficiency review, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96

S.W.3d at 266. 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 must also 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, then the evidence is factually insufficient. Id.


                          Analysis - Best Interest of the Children


       In her sole issue, Tricia challenges the factual and legal sufficiency of the evidence

supporting the best interest finding made under section 161.001(b)(2). She does not

contest the statutory basis for termination under section 161.001(b)(1).


       A determination of best interest necessitates a focus on the child, not the parent.

See In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate

courts examine the entire record to decide what is in the best interest of the child. In re

E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the


                                               6
child’s best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112,

116 (Tex. 2006).


       In assessing whether termination is in a child’s best interest, the courts are guided

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.

1976). These factors include: (1) the desires of the child, (2) the emotional and physical

needs of the child now and in the future, (3) the emotional and physical danger to the

child now and in the future, (4) the parental abilities of the individuals seeking custody,

(5) the programs available to assist these individuals to promote the best interest of the

child, (6) the plans for the child by these individuals or by the agency seeking custody, (7)

the stability of the home or proposed placement, (8) the acts or omissions of the parent

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

excuse for the acts or omissions of the parent. Id. “[T]he State need not prove all of the

factors as a condition precedent to parental termination, ‘particularly if the evidence were

undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,

95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory

grounds for termination may also constitute evidence illustrating that termination is in the

child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis

may consider circumstantial evidence, subjective factors, and the totality of the evidence

as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.). We must also bear in mind that a child’s need for permanence through the

establishment of a stable, permanent home has been recognized as the paramount




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consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.

App.—Dallas 2007, no pet.).


       Several Holley factors support the trial court’s determination that termination of

Tricia’s parental rights is in the children’s best interest.


The Desires of the Children


       Paul and Hailey were ages nine and eight at the time of trial in May of 2018. The

children are bonded with Laura and desire to stay with her. Laura testified that Tricia told

her that she does not want the children, that she wished she never had them, and that

she hates them. Tricia has not visited the children or attempted to participate in any court-

ordered services since February. This factor weighs in favor of termination.


The Emotional and Physical Needs of and Danger to the Children


       The next two factors are the children’s emotional and physical needs now and in

the future, and the emotional and physical danger to the children now and in the future.

The need for permanence is a paramount consideration for a child’s present and future

physical and emotional needs. Edwards v. Tex. Dep’t of Protective & Regulatory Servs.,

946 S.W.2d 130, 138 (Tex. App.—El Paso 1997, no writ), disapproved on other grounds

by, In re J.F.C., 96 S.W.3d at 267. A factfinder may infer that past conduct endangering

the well-being of a child may recur in the future if the child is returned to the parent. In re

D.L.N., 958 S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied), disapproved on other

grounds by, In re J.F.C., 96 S.W.3d at 267. A trial court is entitled to consider a parent’s

history of drug use and irresponsible choices. In re J.O.A., 283 S.W.3d 336, 346 (Tex.

2009). Unchallenged predicate findings are binding on an appellate court. In re E.A.F.,

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424 S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).               Proof

concerning the statutory predicate findings under section 161.001(b)(1) does not relieve

the Department of its burden of proving that termination is in the children’s best interest,

but “the same evidence may be probative of both issues.” In re C.H., 89 S.W.3d at 28.

Evidence of past misconduct or neglect is permissible as an inference that a parent’s

future conduct may be measured by their past conduct. In re D.S., 333 S.W.3d 379, 384

(Tex. App.—Amarillo 2011, no pet.) (parent’s future conduct may be measured by his or

her past conduct in determining whether it is in child’s best interest to terminate parental

rights). A factfinder may reasonably infer from a parent’s refusal to take a drug test that

the parent was using drugs. In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas 2008,

no pet.).


       Tricia’s substance abuse began when she was thirteen years old. The Department

became involved in May of 2017, after Tricia and David tested positive for

methamphetamine. Tricia and David admitted at the time the children were removed that

they were unable to provide for the children. A couple of months later, Tricia was arrested

for possession of a dangerous drug and possession of marijuana. Tricia’s substance

abuse was also a cause of her previous involvement with the Department in 2015.

Although Tricia completed outpatient drug treatment in December of 2017, she refused

to submit to court-ordered drug testing after she completed that treatment.           Tricia

continued to live with David even though he refused to participate in a drug treatment

program.


       A parent’s history and admissions are relevant to the best interest determination.

In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). “A parent’s

                                             9
continued drug use demonstrates an inability to provide for the child’s emotional and

physical needs and to provide a stable environment for the child.” In re E.M., 494 S.W.3d

209, 222 (Tex. App.—Waco 2015, pet. denied) (citing In re F.A.R., No. 11-04-00014-CV,

2005 Tex. App. LEXIS 234, at *4 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem.

op.). The trial court could have concluded that Tricia is unable to meet the physical or

emotional needs of the children and is unable to protect the children from physical or

emotional danger. A factfinder may infer that a parent’s failure to complete her court-

ordered services, and in particular drug-treatment services, indicates a continuing danger

to the children. See In re B.A., No. 04-13-00246-CV, 2013 Tex. App. LEXIS 10841, at *5

(Tex. App.—San Antonio Aug. 28, 2013, no pet.) (mem. op.) (parent’s failure to complete

services directly related to reasons for child’s removal indicates continued danger to

child). Further, a factfinder may infer from evidence of ongoing drug abuse that a parent

is unable to provide a safe environment for the children, cannot meet the children’s

present and future physical and emotional needs, and that her continuing care of the

children presents a present and future danger to their safety. See In re S.N., 272 S.W.3d

45, 52-53 (Tex. App.—Waco 2008, no pet.) (parent’s illegal drug use is relevant to

determining present and future risk to child’s physical and emotional well-being). Tricia’s

long history of substance abuse, continual use of drugs after the children were removed,

and failure to submit to drug testing suggests that similar conduct will occur in the future.

In re D.L.N., 958 S.W.2d at 941. The factfinder may infer that a parent’s past conduct of

endangering the well-being of the children may recur in the future if the children are

returned. Id. These two factors weigh heavily in favor of the trial court’s best interest

determination.



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Parenting Ability and Programs Available to Assist Party Seeking Custody


       The fourth and fifth factors will be discussed together. In reviewing the parenting

ability of the parent, a factfinder can consider the parent’s past neglect or past inability to

meet the physical and emotional needs of the children. In re G.N., 510 S.W.3d 134, 139

(Tex. App.—El Paso 2016, no pet.). A parent’s exposure of a child to drug use may be

properly considered in determining whether a parent has demonstrated appropriate

parenting abilities. In re H.D., No. 01-12-00007-CV, 2013 Tex. App. LEXIS 5699, at *42

(Tex. App.—Houston [1st Dist.] 2013, no pet.) (mem. op). The factfinder can infer from a

parent’s failure to take the initiative to utilize the available programs offered by the

Department that the parent “did not have the ability to motivate herself to seek out

available resources needed now or in the future.” In re J.M., No. 01-14-00826-CV, 2015

Tex. App. LEXIS 2130, at *21 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem.

op.) (citing In re W.E.C., 110 S.W.3d 231, 245 (Tex. App.—Fort Worth 2003, no pet.)).


       Although Tricia completed some of the court-ordered services, she failed to

complete individual counseling or couple’s counseling. She refused to submit to court-

ordered drug testing after she completed an outpatient drug treatment program. She

continued to live with David, who refused to seek drug treatment and who admitted to his

own abuse of narcotics. Laura offered to pay for Tricia and David to attend a long-term

private drug rehabilitation program, but they refused. Tricia’s failure to complete the

court-ordered services could have led the trial court to infer that Tricia did not have the

ability to motivate herself to seek out available resources now or in the future. See id.

Laura’s commitment to Paul and Hailey pre-dates this termination suit and she continues

to take the steps necessary to ensure that the children’s needs are met. Laura takes Paul

                                              11
to counseling and works with school officials to address his behavior issues. The trial

court was entitled to find that this evidence weighed in favor of the best interest finding.


Plans for the Children and Stability of the Home or Placement


       We will consider the sixth and seventh factors together. The sixth factor examines

the plans for the child by those individuals or the agency seeking custody. The seventh

factor is the stability of the home or proposed placement. Stability and permanence are

paramount in the upbringing of children. In re J.D., 436 S.W.3d 105, 120 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). The factfinder may compare the parents’ and the

Department’s plans for the child and determine whether the plans and expectations of

each party are realistic or weak and ill-defined. Id. at 119-20.


       Tricia did not testify at the termination hearing or offer any specifics of her plans

for the children. The Department’s investigation revealed that there were no utilities in

the home where Tricia, David, and the children were living just prior to the removal. Tricia

has not been able to maintain a stable home or employment since the Department

became involved in 2017. According to Laura, Tricia told her that she wished she never

had the children, does not want them, and hates them. The caseworker testified that

Tricia and David were currently living in a trailer park in a small camper trailer. There is

no room for the children to live in such a trailer. Tricia failed to pay any of her court-

ordered child support and did not verify any employment. Conversely, Laura is providing

a drug-free environment and the stability, structure, security, and consistency that Paul

and Hailey need. Laura is able to meet the special needs of Paul and both Paul and

Hailey are bonded with Laura. Laura is interested in adopting Paul and Hailey if parental



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rights are terminated. This evidence supports the trial court finding that termination was

in the best interest of the children.


Acts and Omissions of the Parent


       The eighth factor is the parent’s acts or omissions that may indicate that the

existing parent-child relationship is not a proper one. The evidence established that Tricia

engaged in conduct which endangered the children’s physical and emotional well-being.

Tricia’s history of substance abuse and continued methamphetamine use, her lack of

interest in visiting with the children, and her failure to maintain a stable home is evidence

indicating that the existing parent-child relationship is not a proper one.


       From a review of these Holley factors, we conclude that the evidence is both legally

and factually sufficient to establish a firm conviction in the mind of the trial court that

termination of Tricia’s parental rights is in the best interest of Paul and Hailey.


                                        CONCLUSION


       The judgment of the trial court terminating Tricia’s parental rights is affirmed.




                                                          Judy C. Parker
                                                             Justice




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