                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS


                                                          §
    B.B.,                                                                   No. 08-14-00178-CV
                                                          §
                       Appellant,                                               Appeal from the
                                                          §
    v.                                                                   65th Judicial District Court
                                                          §
    TEXAS DEPARTMENT OF FAMILY                                            of El Paso County, Texas
    AND PROTECTIVE SERVICES,                              §
                                                                            (TC# 2013DCM0923)
                       Appellee.                          §

                                                 OPINION

            B.B.1 appeals the trial court’s order terminating his parental rights to his three minor

children. In two issues, Father, contends the evidence presented was legally and factually

insufficient to establish that termination was in the children’s best interest. We affirm.

                                              BACKGROUND
                                             FACTUAL HISTORY
                                    Life in Odessa and Move to El Paso

            Appellant, B.B. is married to his wife, R.A. At the time of the final hearing at issue in

this appeal, Father and Mother had three children together. Father also had a son from a

previous relationship who is not subject to this suit.

            Father has a long history of drug use. He began dealing cocaine at age seventeen, near

1
 Pursuant to TEX.R.APP.P. 9.8, we shall refer to the children’s mother, R.A., as “Mother” and the subject children’s
father, B.B., as “Father.”
the time he met his wife. At the time he met his wife, Father smoked about four blunts, or seven

grams, of marijuana a day. His usage increased to six blunts a day after the mother of his first

son abandoned their son. He admitted to working under the influence at a restaurant during the

time he was caring for his first son. He then obtained a job at a different restaurant, during

which time he cut back on marijuana use, but continued selling cocaine on the side.

       Father has been convicted of driving without a license numerous times and in February

2007 was sentenced to seventeen days in jail for driving with a suspended license. In January

2007, the 70th District Court in Ector County, Texas, placed Father on probation for possession

of between one and four grams of cocaine, a third-degree felony. In May 2009, Father was

convicted of marijuana possession and sentenced to forty-nine days in jail. Father admitted that

the last two years of his probation for the cocaine offense, he restarted smoking marijuana,

stopping in time to come up negative on drug tests.

       Eventually, Father was caught violating the terms of his probation by smoking marijuana

and elected to serve a staggered two-year prison sentence rather than continue on probation.

When his oldest child turned three months’ old, Father went to prison for a period of about four

months. Mother testified that Father was then released for a period of time before serving at

least another six months. Father testified that he served about a year in prison total, and that

during that time, he did not see his oldest child because the prison was in Amarillo, several

hundred miles away from Odessa.

       After Father was released from prison, he and Mother moved from Odessa to El Paso in

early 2012. Father and the family lived in a trailer in Northeast El Paso that was in acceptable

condition at first, but eventually, three holes opened up in the floor that he had to repair with

plywood. The holes were big enough that the children could have fallen through, so he repaired



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those holes himself “immediately.” While in El Paso, Father began using powder cocaine and

selling both powder and crack cocaine. Mother testified that she and Father used cocaine and

marijuana together, and that both of them had taken care of their children while under the

influence of drugs.

                        Child Protective Services Investigation Begins

       Texas Department of Family and Protective Services (“DFPS”) caseworker Myrna

Calzada testified that she received an anonymous tip alleging that Father and Mother’s children

were being medically neglected and using blankets as diapers; that there was no food or supplies

at the home; and that the home itself was in poor repair. A DFPS investigator went to the home

on February 5, 2013, and found house was unsafe, dirty, and lacked food and diapers for the

children. Calzada testified that Father’s youngest child had a rash that was never treated in

accordance with doctor’s orders. The oldest child also had marks around his eye. Calzada

maintained that the “big issue in the home” was Father and Mother’s drug use. Mother took an

oral drug test at DFPS’s request and tested positive for marijuana and cocaine. Father submitted

to a hair follicle drug test and also failed. DFPS subsequently removed the children from the

home and filed a suit affecting the parent-child relationship (“SAPCR”) for conservatorship and

termination.

                                    Post-Removal Conduct

       Calzada formulated a treatment plan that the court ordered Father to follow. He failed to

comply with the court ordered plan. Father testified that following the children’s removal, he

began increasing his cocaine intake, and that he and Mother would continue to use cocaine

together. In March 2013, Jane Leal, interviewed and assessed Father following a referral from

DFPS. Based on Father’s criminal history and admitted past drug use, she recommended he



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receive inpatient treatment at Aliviane, a drug rehabilitation facility.     He began inpatient

treatment on April 8, 2013. He also voluntarily agreed to be supervised by the drug court,

although he failed to call in or attend proceedings as required. Father repeatedly tested positive

for marijuana and cocaine while at Aliviane. He conceded the first tests were accurate but

contested the validity of his most recent drug tests, and his attorney ordered additional,

independent drug tests. Those tests also showed positive results. Due to the positive urine

analysis, Aliviane discharged Father in May 2013. Leal then recommended Father participate in

outpatient treatment programs in June 2013. Father failed to attend that program.

       At some point, Father and Mother then moved into an apartment together. However, the

couple’s car was stolen, and Father injured his ankle and was unable to work. As a result, the

couple could not pay their rent, were evicted from the apartment, and became homeless in

August 2013. Father admitted that he did not contact Calzada, his caseworker, during that time

because his “pride is too high” and because he did not get along with her. Father also admitted

that while homeless, he continued to use cocaine, placing a higher value on it than his own

children. Father and Mother remained homeless until sometime around October 2013, when a

police officer took them to a homeless shelter.

       Father then began living at the Opportunity Center, a homeless shelter in El Paso. The

Opportunity Center provided mental health services through the PATH program. Father did not

participate in that program. Father admitted to continuing to use cocaine through December

while at the Opportunity Center.

                                    SAPCR Hearings Begin

       The initial hearing on February 5, 2014, Father submitted to a hair follicle drug test,

which showed positive for cocaine and opiates. Father conceded the test was correct because he



                                                  4
had touched cocaine while selling it, but he denied actually using it. He also admitted to having

smoked marijuana in either January or February and to have taken a prescription painkiller

without a prescription.

       On February 19, 2014, Father met with counselor Molly Luevanos, who recommended he

begin outpatient classes and scheduled a follow-up appointment on February 27. Father did not

attend the follow-up appointment because he was out of town for one month. Father obtained

temporary employment working with a traveling carnival making $600.00 a week from March to

April 2014. He failed to inform his caseworker or Luevanos that he was leaving town or let her

know when he had returned.

       Father attended another session with Luevanos on April 17. Leuvanos testified that

Father had attended two parenting classes and some individual and group therapy sessions, but

stated that Father was not receiving individual therapy sessions at Aliviane. Father admitted that

he only began taking these classes two weeks before the April 3rd hearing in this case.

       As of April 2014, the three children at issue in this suit were four years’ old, two years’

old, and one year’ old, respectively. At a hearing on May 6, Calzada testified that the children

were too young to articulate whether they wanted to stay with Father, but that on only one

occasion was one child upset to be leaving Father. All other times, the children readily returned

to their foster mother, whom they referred to as “grandma.” Mother testified at a previous

hearing that one child was in speech therapy and another was in physical therapy, and that since

the time they were placed in foster care, both children have undergone improvement in their

conditions.   Calzada also testified that Father missed thirty-nine scheduled visits with his

children since DFPS took custody. Father admitted that there was a four-month period in which

he was not able to make visits with his children because he did not have a car.



                                                5
       Father was still residing at the homeless shelter at the time of the May 6 hearing. He

hoped to continue working for the carnival and hoped they would extend him a formal contract.

He testified that if the trial court permitted him to leave El Paso to find work, he would do so.

Father submitted to a final hair follicle drug test at the May 6 hearing, maintaining the test would

be negative. Father again tested positive for cocaine at the final hearing on May 27.

                                     PROCEDURAL HISTORY

       The trial court entered an order terminating Father’s parental rights. The order further

named the Department as managing conservator and Mother as possessory conservator. This

appeal followed.

                                          DISCUSSION

       The Texas Legislature has established a two-prong test for determining when parental

rights may be terminated. First, the State must establish the existence of one or more statutory

grounds for termination set out in TEX.FAM.CODE ANN. § 161.001(1)(West 2014). Second,

termination of parental rights must be in the best interest of the child. TEX.FAM.CODE ANN. §

161.001(2). Father concedes that from a legal standpoint, he cannot attack the legal sufficiency

of the trial court’s rulings that he (1) knowingly placed or knowingly allowed the children to

remain in conditions or surroundings which endanger the physical or emotional well-being of

the children (Subsection D); engaged in conduct or knowingly placed the children with persons

who engaged in conduct which endangers the physical or emotional well-being of the children

(Subsection E); failed to comply with the provisions of a court order that specifically established

the actions necessary to obtain return of the children (Subsection O); and used a controlled

substance in a manner that endangered the health and safety of the children and failed to

complete a court-ordered substance abuse treatment program (Subsection P).



                                                 6
       However, Father maintains that although all the adverse rulings on the first prong are

germane to assessing best interest under prong two, see In re C.H., 89 S.W.3d 17, 28 (Tex.

2002), there was legally and factually insufficient evidence to find, by clear and convincing

evidence, that termination of his rights was in the best interest of the children. We disagree.

                                       Standard of Review

       Because parental rights are of a constitutional dimension, the State must prove its case by

clear and convincing evidence before a parent’s rights may be terminated. In re J.F.C., 96

S.W.3d 256, 266 (Tex. 2002). This change in the evidentiary burden at trial triggers a reciprocal

change in how legal and factual sufficiency points are treated on appellate review. Id. “In a

legal sufficiency review, a court should look at 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.” Id. at 266. “Evidence that merely exceeds a scintilla is not

legally sufficient when the burden of proof is clear and convincing.” State v. K.E.W., 315

S.W.3d 16, 20 (Tex. 2010). We presumptively resolve any evidentiary disputes in favor of the

finding and disregard all contrary disputed evidence unless a reasonable factfinder could not do

so. In re J.F.C., 96 S.W.3d at 266. We are not free to disregard undisputed facts in our analysis.

Id.

       In reviewing a clear-and-convincing-evidence finding for factual sufficiency, we assess

whether the record evidence as a whole “is such that a factfinder could reasonably form a firm

belief or conviction about the truth of the State’s allegations.” In re C.H., 89 S.W.3d at 25.

Although we “give due consideration to evidence that the factfinder could reasonably have found

to be clear and convincing[,]” we do not presumptively resolve factual disputes in the finding’s

favor as in a legal sufficiency challenge. In re J.F.C., 96 S.W.3d at 266. Instead, where we



                                                 7
determine “a reasonable factfinder could not have resolved that disputed evidence in favor of its

finding[,]” and where “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[,]” we must grant an appellant’s factual insufficiency point. In re J.F.C., 96

S.W.3d at 266. When we grant a point on factual sufficiency grounds, we “should detail in [our]

opinion why [we have] concluded that a reasonable factfinder could not have credited disputed

evidence in favor of the finding.” Id. at 266-67.

                                      Best Interest Analysis

       At issue in this appeal is the second prong of the statutory termination test – the best

interest of the child assessment. “Although a strong presumption exists that a child’s best

interest is served by keeping them with their natural parents, that presumption disappears when

confronted with evidence to the contrary.” In re A.I.G., 135 S.W.3d 687, 692 (Tex.App.--San

Antonio 2003, no pet.). In reviewing whether termination is in a child’s best interest, we resort

to the nine-factor test set out in Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). Those

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 parenting abilities of the parties seeking custody; (5) the programs available to assist

these persons; (6) the plans for the child by the parties seeking custody; (7) the stability of the

home or proposed placement; (8) the acts or omissions committed by 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 committed by the parent. Id. “We need not decide each of these factors

against a parent to find that termination is in the child’s best interest.” In re A.I.G., 135 S.W.3d

at 692-93.



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       In reviewing the Holley factors, we cannot say that the evidence was legally or factually

insufficient to justify termination of Father’s parental rights. Calzada testified that the children

are still too young to be able to articulate whether they wanted to stay with their Father, making

factor one unhelpful in our analysis. Even where a child is attached to a parent, that factor alone

is not dispositive where the parent has engaged in conduct dangerous to the child’s well-being.

In re W.S.M., 107 S.W.3d 772, 773 (Tex.App.--Texarkana 2003, no pet.).

       Thus, we next turn to factors two, three, four, six, and seven, addressing them jointly. All

three children are under the age of four, and evidence in the record indicates that two of the

children have special needs, particularly speech and physical therapy. At the time of the hearing,

Father was homeless and admitted he had nowhere to house the children if given custody. He

worked part-time for a traveling carnival, but work was sporadic and he could not say if it would

continue. Even if his carnival work did continue on a regular contract basis, living on tour with

Father would constitute a hardship for the children, especially given their young age. In terms of

parental ability, there was some testimony that Father cared for his children and showed them

affection. He also began taking parenting classes two weeks before the final hearing in this case.

However, Father also admitted to taking care of his children under the influence of drugs, and

repeatedly tested positive for drugs even through the date of the final hearing. Furthermore, at

the time the Department took the children into custody, one child was suffering from medical

neglect, as a rash had gone untreated. Another child exhibited marks around the eye. Taking

these factors in the aggregate, the trial court could have believed that Father could not provide

for his children’s emotional and physical needs, that his presence would place them in emotional

or physical danger, that he lacked the ability to parent well, that his plans for the future were too

ill-defined to provide a stable environment, and that his children would be exposed to improper



                                                 9
drug influences.

       In reviewing factor six, the evidence establishes the presence of several inpatient and

outpatient opportunities through the Opportunity Center and Aliviane. Father failed to attend

therapy consistently until two weeks before the final hearing. He also failed to comply with the

terms of Aliviane’s treatment, with court orders, and with the drug court program. Father

admitted to a long history and pattern of drug use, which included caring for the children while

intoxicated on marijuana and cocaine, and he continued to use and sell cocaine after DFPS

removed the children from the home. While testimony does exist to suggest that a person

seeking drug treatment may have to make several attempts at treatment before he is successfully

rehabilitated, the trial court could also find that his non-compliance with treatment and failure to

make earlier attempts weighed in favor of termination. In re J.O.A., 283 S.W.3d 336, 346 (Tex.

2009)(evidence of recent improvement “especially of short-duration[] does not conclusively

negate the probative value of a long history of drug use and irresponsible choices”). This is

especially true in light of the fact that the trial court found the existence of four separate grounds

for termination, all of which Father concedes are legally and factually sufficient. See In re C.H.,

89 S.W.3d at 28 (statutory grounds may also constitute best interest evidence).

       Finally, we turn to the mitigating factors. Father testified that he missed many of the

meetings with the children because he did not have a car, as it was stolen. He also became

homeless after an injury that rendered him unable to work. The record indicates that Father has

been diagnosed with cannabis dependence and exhibits some form of drug addiction. Father’s

counsel maintains that terminating Father’s parental rights would preclude his children from

receiving child support, making termination not in their best interests. DFPS counters that Father

never actually ever paid child support, and that the only funds the children ever received were



                                                 10
garnished from Father’s income tax withholdings.

       In weighing all these factors and assessing the evidence relevant to these factors, we

cannot say the evidence underpinning the termination order is legally or factually insufficient.

Father points out that the trial court chose to terminate his parental rights, but not those of

Mother, with whom he had engaged in past drug use while caring for the children. In C.V. v.

Tex. Dep’t of Family & Protective Srvs., 408 S.W.3d 495, 505-06 (Tex.App.--El Paso 2013, no

pet.), a mother complained that her parental rights had been terminated, while those of the Father

remained intact. There, we stated, “[t]hat the trial judge may have been willing to give the

Father a second chance does not require a finding that termination of the mother was not in the

children’s best interest. We look only to the conduct, behavior, circumstances, and reasons

offered by the mother.” Id. at 506. Here, we must only look to the conduct of Father in

determining whether termination of Father’s rights was in the children’s best interest. Based on

the evidence presented in the record, we find that the trial court did not err in determining

termination was in the children’s best interest. The evidence was legally and factually sufficient

to support the findings.

       Issues One and Two are overruled. The judgment of the trial court is affirmed.



September 23, 2014
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J. (Not Participating)




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