Opinion issued January 29, 2019




                                       In The
                                Court of Appeals
                                       For The
                           First District of Texas
                           ————————————
                               NO. 01-18-00720-CV
                             ———————————
                   IN THE INTEREST OF A.T.W., JR., Child



                    On Appeal from the 314th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-04062J


                           MEMORANDUM OPINION
      This is an appeal from a decree terminating a mother’s parental rights and

appointing the Department of Family and Protective Services as sole managing

conservator of her child. The mother contends that the evidence was legally and

factually insufficient to support the trial court’s termination of her parental rights.

Because the evidence is sufficient to support the trial court’s decree, we affirm.
                                    Background

      About two hours after midnight, on July 2, 2016, appellant M.J. was driving

with her then two-year-old son unbuckled in the backseat. M.J.’s car drifted across

three lanes of traffic and slammed into a pole. The child flew through the car

before ending up pinned at the pelvis by the passenger-side dashboard. The child,

A.T.W., sustained a fractured femur, tibia, and fibula, a pulmonary contusion, and

a liver laceration. On the arrival of emergency services, the child was airlifted to a

nearby hospital. The mother claimed she had a small amount of alcohol earlier in

the night, and she passed a field-sobriety test administered by responding officers.

Subsequent urine and blood tests at the hospital confirmed that the mother was not

under the influence of alcohol but indicated that she had marijuana in her system at

a level indicative of daily or chronic use. Although police classified the crash as an

accident and did not criminally charge the mother, the Department of Family and

Protective Services received a referral of neglectful supervision following the

accident.

      The Department began its investigation a few days after the accident by

interviewing the mother. Although the mother initially could not remember what

happened before the accident, she later recollected that shortly before the accident,

she was leaning into the backseat to stop A.T.W. from tampering with his seatbelt.

                                          2
The mother explained that she was not under the influence of marijuana during the

accident and that she rarely smokes, maybe once every one to two months or

longer.

      The Department filed its original petition seeking emergency temporary

managing conservatorship over A.T.W. on July 12, 2016. The trial court granted

the Department’s emergency petition and named it as temporary managing

conservator. The Department formally served the mother with its petition about

two weeks later. That same day, the mother tested positive for cocaine and

marijuana. After an adversary hearing, the trial court issued an order that named

the Department as temporary managing conservator pending the outcome of the

trial. A.T.W. was then placed with his maternal aunt.

      The Department created a family-service plan about a week later. The plan’s

primary goal was to reunify the mother with A.T.W. The plan required the mother

to participate in a psychosocial assessment, individual counseling, and a substance-

abuse assessment; attend all Child Protective Services’ related meetings, court

hearings, and scheduled visits with the child; maintain stable housing and

employment; participate in random drug and alcohol testing; and successfully

complete a six-to-eight week parenting course. The trial court later ordered the

mother’s compliance with this plan.

                                         3
      After the trial court made the mother’s compliance with the family-service

plan an order of the court, the mother passed a number of drug tests. But on

December 15, 2016, while she was pregnant with another child, she tested positive

for cocaine and marijuana. Two weeks after that child was born, the mother failed

another drug test, testing positive for cocaine at a level indicating multiple uses.1

      Meanwhile, A.T.W. was staying with his aunt. The Department received a

report that he was missing and that his mother had taken him. According to the

aunt, however, the mother did not take A.T.W. from her. After a request from the

Department, the trial court issued a writ of attachment to get the child back into the

Department’s possession. Three days after the trial court issued the writ, A.T.W.

and his mother showed up at his paternal great-grandmother’s home. After

receiving a call from the great-grandmother, the Department picked up A.T.W. and

placed him in a foster home. Less than a week later, the mother tested positive for

cocaine and marijuana.

      The Department then filed a permanency report with the trial court. The

Department explained that although the mother had provided proof of stable

housing and income; attended court hearings; and complied with the family-service


1
      Unfortunately, the newborn died on April 10, 2017. The child’s death was
      caused by sudden infant death syndrome.

                                           4
plan by completing a psychosocial assessment, psychological evaluation, substance

abuse assessment, substance abuse counseling, parenting classes, and random drug

tests, she failed multiple drug tests, including one while she was pregnant. The

Department explained that its goal had changed and that it was now aiming to have

one of A.T.W.’s relatives adopt him. It recommended that the trial court terminate

the mother’s parental rights. It noted that A.T.W.’s paternal grandmother expressed

a desire for custody but that it had yet to conduct a home study for that

grandmother.

      A bench trial began on July 13, 2017. The first witness, a Department

caseworker, testified to many of the facts described above. The mother testified

next. After recollecting the accident and stating that she had no idea how she tested

positive for cocaine, she discussed her relationship with A.T.W.’s father.2 The

mother explained that she had lived with the father for some time beginning in

2013, but that she had not been living with him at the time of the accident. She

confirmed that she was aware that the father had a criminal history but did not

know what his crimes were. Near the end of her testimony, the mother asked the



2
      The Department was simultaneously seeking termination of the father’s
      parental rights. The Department’s case against the father was based on his
      marijuana and cocaine use, his criminal history, his failure to attend all visits
      with A.T.W., and his unwillingness to comply with his family-service plan.
                                        5
court to give her more time to demonstrate her capability of testing clean and

providing the child with a safe and stable home. After the mother left the stand, the

trial was continued until November 2017.

      During the continuance, the mother failed a drug test, testing positive for

marijuana. The mother testified again when trial resumed. She explained that she

had not smoked marijuana since the trial was continued and did not know how she

tested positive for marijuana. After the mother completed her testimony, the

Department caseworker was recalled. The caseworker testified that the Department

had completed an updated home study of the paternal grandmother, who had

previously had her home study denied because she worked too many hours. The

caseworker noted that the grandmother reduced the hours that she worked so that

she could spend more time with A.T.W., that she was willing and able to provide a

permanent home for him, and that she was willing to protect the child from future

abuse or neglect, even if that meant excluding the mother and father from his life.

The caseworker explained that the Department was confident in the paternal

grandmother’s ability to properly care for A.T.W. After brief testimony from the

father, trial was continued again until June 2018.

      When trial resumed, a newly assigned caseworker was the first to testify.

She explained that A.T.W. had recently been taken out of foster care and placed

                                          6
with his paternal grandmother. The caseworker was satisfied that the grandmother

was meeting A.T.W.’s physical and emotional needs. The caseworker explained

that the grandmother wanted to adopt A.T.W., had plans for the child’s future, and

was capable of providing the child with a safe environment. Lastly, the caseworker

noted that she had recently asked the mother to take a drug test on two occasions,

but the mother refused. Ruling from the bench, the trial court terminated the

mother’s and father’s parental rights and named the Department as permanent

managing conservator. The mother now appeals.

                                       Analysis

      The mother challenges the sufficiency of the evidence supporting the trial

court’s termination of her parental rights. Before a trial court may terminate

parental rights, the Department must prove by clear and convincing evidence that

both a predicate statutory ground under section 161.001(b)(1) exists and that

terminating parental rights is in the child’s best interests. TEX. FAM. CODE §

161.001(b)(1)(O); In re B.L.D., 113 S.W.3d 340, 353–54 (Tex. 2003). 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.” TEX. FAM. CODE § 101.007; see also In re A.C., 560

S.W.3d 624, 629–30 (Tex. 2018).

                                           7
      The trial court concluded that the Department had established by clear and

convincing evidence a predicate statutory ground under section 161.001(b)(1)(E),

engaging in conduct that endangers the child’s physical or emotional well-being,

and section 161.001(b)(1)(O), failing to comply with provisions of the trial court

order that specifies the actions necessary for the parent to obtain the return of the

child. The trial court also concluded that the Department established by clear and

convincing evidence that terminating the mother’s parental rights would be in

A.T.W.’s best interests. See TEX. FAM. CODE § 161.001(b)(2).

      On appeal, the mother contends that the trial court’s findings rested on

legally and factually insufficient evidence. To assess the evidence’s legal

sufficiency, we ask, “if, viewing all the evidence in the light most favorable to the

fact-finding and considering undisputed contrary evidence, a reasonable factfinder

could form a firm belief or conviction that the finding was true.” In re A.C., 560

S.W.3d at 631; see also In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume

that any disputed facts were resolved in favor of the finding as long as a reasonable

factfinder could have done so. In re A.C., 560 S.W.3d at 630–31. If “no reasonable

factfinder could form a firm belief or conviction” that the matter on which the

Department bears the burden of proof is true, then we “must conclude that the

evidence is legally insufficient.” In re J.F.C., 96 S.W.3d at 266. In reviewing the

                                         8
factual sufficiency of the evidence, we weigh “disputed evidence contrary to the

finding against all the evidence favoring the finding;” we “must consider whether

disputed evidence is such that a reasonable factfinder could not have resolved it in

favor of the finding.” In re A.C., 560 S.W.3d at 631. The evidence is factually

insufficient if, “in light of the entire record, the disputed evidence a reasonable

factfinder could not have credited in favor of a finding is so significant that the

factfinder could not have formed a firm belief or conviction that the finding was

true.” Id.

I.     Sufficiency of the evidence to support predicate statutory grounds

       The mother challenges the legal and factual sufficiency of the evidence that

she failed to comply with the provisions of the trial court’s order that specified the

actions necessary for her to obtain the return of A.T.W. See TEX. FAM. CODE

§ 161.001(b)(1)(O). The trial court incorporated the family-service plan into an

order that laid out the requirements the mother had to satisfy before A.T.W. would

be returned to her. One of those requirements was that the mother submit to all

random drug tests. Within the two weeks before trial concluded, a Department

caseworker asked the mother to take two separate drug tests, but the mother

refused both times. And the mother acknowledged at trial that she refused to take




                                          9
these tests. This was a blatant failure to comply with a provision of the trial court’s

order specifying the actions necessary for the return of the child.

      In her brief, the mother argues that although she failed to comply with the

trial court’s order with respect to the drug tests, she complied with every other

requirement. But partial or substantial compliance with a court-ordered family-

service plan is insufficient to avoid termination of parental rights. In re J.M.T., 519

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

cases). We therefore reject the mother’s argument.

      In light of the entire record, including the undisputed evidence that the

mother refused to take two drug tests, we conclude that the trial court reasonably

could have formed a firm belief or conviction that the mother failed to comply with

a provision of its order that specified the requirements the mother had to satisfy

before having A.T.W. returned to her. We therefore overrule the mother’s legal

and factual sufficiency complaints on the predicate finding under section

161.001(b)(2). And because “[o]nly one predicate finding . . . is necessary to

support a judgment of termination,” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003),

we do not reach the mother’s argument that the evidence supporting the trial

court’s finding on the other predicate statutory ground was legally and factually

insufficient.

                                          10
II.   Sufficiency of the evidence to support best-interest finding

      The mother next challenges the factual and legal sufficiency of the evidence

supporting the trial court’s finding that the termination of her parental rights would

be in A.T.W.’s best interests. To assist us in our analysis of the legal and factual

sufficiency of the evidence underlying the trial court’s finding that termination was

in A.T.W.’s best interests, we evaluate the entire record in light of the factors set

out in Holley v. Adams: (1) the child’s desires; (2) the child’s current and future

physical needs; (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 child’s best interests;

(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 which may indicate that the existing parent-child relationship is not a proper

one; and (9) any excuse for the acts or omissions of the parent. 544 S.W.2d 367,

371–72 (Tex. 1976). The list of Holley factors is not exhaustive, and evidence of

all nine factors is not required to support a termination judgment. Id. at 372.

Evidence that establishes the predicate acts under section 161.001(b)(1) may be

relevant to determining the child’s best interests. In re C.H., 89 S.W.3d 17, 27–28

(Tex. 2002).

                                         11
      Starting with the second Holley factor, which concerns A.T.W.’s present and

future emotional and physical needs, the mother acknowledges that his needs are

currently being met in his paternal grandmother’s home. But she maintains that it

“remains speculative whether his future and emotional needs will be met.”

However, the mother did not present any evidence to support her suggestion that

the paternal grandmother will be unable to meet A.T.W.’s needs sometime in the

future; in fact, the evidence demonstrates the contrary. The paternal grandmother

has taken numerous steps, including reducing the time she spends at work, to

ensure that she is able to meet A.T.W.’s needs. The Department conducted a home

study and approved of the grandmother’s home and had confidence in her ability to

continually meet A.T.W.’s needs. Further, one of the stated reasons the

Department was interested in placing A.T.W. with the paternal grandmother was

so that A.T.W. would remain with his relatives and thereby allowing the mother

and father to more easily have access to him than they otherwise would. A child’s

need for a prompt and permanent home is a paramount consideration in evaluating

a child’s best interest. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston

[14th Dist.] 2016, pet. denied). We therefore reject the mother’s argument. See

e.g., Martinez v. Harris Cty., 526 S.W.3d 557, 565–66 (Tex. App.—Houston [1st

Dist.] 2017, no pet.) (rejecting argument as speculative and contrary to the record).

                                         12
The trial court reasonably could have concluded that the second Holley factor

weighs in favor of termination.

      As for the emotional and physical danger to A.T.W. now and in the future,

the mother again argues that it is speculative as to whether he will remain safe with

his paternal grandmother. But like her previous argument, she presented no

evidence to support her claim. Nothing in the record suggests that the paternal

grandmother poses any threat, physical or emotional, to A.T.W. Again, the record

suggests the contrary. The grandmother took A.T.W. to the hospital following the

car accident to have a plate put into his leg and then later taken out. The

grandmother has also taken the necessary steps to adopt A.T.W. and testified and

demonstrated to the satisfaction of the Department that she has the resources to do

so. The mother, on the other hand, failed to comply with the court’s order that was

specifically designed to “to reduce [the] risk” of harm to A.T.W. The trial court

reasonably could have concluded that the third Holley factor weighs in favor of

termination.

      The fourth Holley factor focuses on the parental abilities of the individuals

seeking custody. Although the mother completed most of the family-service plan

to the satisfaction of the Department, she acknowledges that she “may need

additional services to address her parenting deficiencies.” Furthermore, the mother

                                         13
demonstrated a true struggle in maintaining her sobriety. Even while she was

pregnant with another child, she tested positive for cocaine and marijuana. The

trial court reasonably could have concluded that the mother’s failure to maintain

sobriety and comply with the family-service plan demonstrated her inability to

place the needs of her child before her own desires. In contrast, the paternal

grandmother has made clear that she is capable of providing A.T.W. with the love,

care, and safe, stable environment that he needs. The caseworker that conducted

the grandmother’s home study testified that the home was a safe place for A.T.W.

and that she was comfortable with his placement there. The trial court reasonably

could have concluded that the fourth Holley factor weighs in favor of termination.

      The fifth Holley factor instructs courts to consider the programs available to

assist the individuals seeking custody in promoting the child’s best interests.

Regarding this factor, the mother argues that the Department could create a

modified family-service plan upon restoration of her parental rights. However, she

has not identified any specific service or program that would address the

Department’s and the trial court’s concerns. The mother’s argument again relies on

speculation. The mother’s failure to comply with the original plan over a two-year

period and her inability to refrain from using drugs, including while pregnant,

allowed the trial court to draw the reasonable conclusion that a modified family-

                                        14
service plan would likely be unhelpful and therefore conclude that the fifth Holley

factor weighs in favor of termination.

      As for the sixth factor, which considers the plans for the child by the

individuals or agency seeking custody, the Department endorses the paternal

grandmother as an adopting candidate. The Department notes that the grandmother

has reduced her work hours to ensure she has more time to spend with and meet

the needs of A.T.W.; she has taken necessary steps to adopt him; she has plans for

his future education; and she has the financial and parental capability of providing

A.T.W with the safe, stable, and nurturing environment that he needs. As for the

mother, her brief simply states, “The mother’s plans are unknown.” The trial court

reasonably could have concluded that this factor weighs in favor of termination.

      The next factor considers the stability of the home or proposed home. The

mother acknowledges that A.T.W.’s current placement with his paternal

grandmother is “reportedly safe, stable, protective and meeting [of all] the child’s

needs.” In light of our previous discussions concerning the paternal grandmother’s

parental ability and the mother’s acknowledgement, the trial court reasonably

could have concluded that this factor weighs in favor of termination.

      The final two Holley factors concern any acts or omissions by the parent

indicating that the existing parent-child relationship is inappropriate and any

                                         15
excuse for those acts or omissions. According to the mother, her drug use “is not

an indication that [her] relationship with her child is improper in any way,” and

therefore she advances no excuses for her acts. We disagree. See, e.g., Latham v.

Dep’t of Fam. & Prot. Servs., 177 S.W.3d 341, 349 (Tex. App.—Houston [1st

Dist.] 2005, no pet.) (concluding that mother’s drug use and failure to comply with

family-service plan indicated an improper parent-child relationship). Specifically,

the trial court reasonably could have concluded that the mother’s failure to take the

final two drug tests and her testing positive on several drug tests, including a test

while she was pregnant, are indicative of the mother’s current and past inability to

place A.T.W.’s needs before her own. Similarly, the trial court reasonably could

have concluded that these two factors weigh in favor of termination.

      Aside from A.T.W.’s desires, a review of the Holley factors reveals only

evidence indicating that termination was in his best interests.3 And A.T.W.’s exact

desires are not entirely clear from the record. The mother contends that A.T.W.

clearly demonstrated his desire to be with her through his conduct. The only



3
      Our conclusion also finds support in the closing argument of A.T.W.’s
      guardian ad litem, who stated, “I believe the Mom’s history with drugs
      doesn’t make her a capable parent who can provide a safe and stable
      environment for the child. I believe the paternal grandmother can safely take
      care of this child and provide for the future; therefore, it is in the best
      interest to terminate.”
                                         16
example of his conduct that she cites is that A.T.W. would become upset when she

left visitation sessions. Nevertheless, no single Holley factor is dispositive. See

Holley, 544 S.W.2d at 372. Viewing the evidence in the light most favorable to the

trial court’s finding—as we must, see In re J.F.C., 96 S.W.3d at 266—we conclude

that the trial court reasonably could have found that any desire by A.T.W. to be

with his mother was greatly outweighed by the other factors and the evidence

demonstrating that the paternal grandmother was satisfying his needs and

providing stability. Furthermore, there was no disputed evidence that a reasonable

factfinder could not have resolved in favor of finding that termination was in

A.T.W.’s best interests, so as to prevent the trial court from forming a firm belief

or conviction in that regard. Accordingly, we overrule the mother’s challenge to

the legal and factual sufficiency of the evidence on the child’s best interests.

                                     Conclusion

      We affirm the trial court’s judgment.




                                               Richard Hightower
                                               Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.


                                          17
