       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-19-00355-CV



                                    G. B. and T. B., Appellants

                                                 v.

                Texas Department of Family and Protective Services, Appellee




                 FROM THE 274TH DISTRICT COURT OF HAYS COUNTY
            NO. 18-0782, THE HONORABLE DAVID JUNKIN, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Mother, T.B., and Father, G.B., filed notices of appeal from the trial court’s final

order terminating their parental rights to their children—daughter Cary, who was almost four at

the time of the hearing, and son Greg, who was almost three. 1 Mother’s attorney has since filed

a brief concluding that her appeal is frivolous and without merit. 2 Father argues on appeal that

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

termination is in the children’s best interest. See Tex. Fam. Code. § 161.001(b)(2). We will

affirm the trial court’s order of termination.

       1
           To protect the children’s privacy, we refer to the children and their family members by
their initials or by aliases. See Tex. R. App. P. 9.8.
       2
         See In re P.M., 520 S.W.3d 24, 27-28 (Tex. 2016) (“Counsel’s obligation to the client
may still be satisfied by filing an appellate brief meeting the standards set in Anders v.
California, [386 U.S. 738 (1967),] and its progeny.”); Taylor v. Texas Dep’t of Protective &
Regulatory Servs., 160 S.W.3d 641, 646-47 & n.4 (Tex. App.—Austin 2005, pet. denied).
                                    STANDARD OF REVIEW

               To terminate a parent’s rights to their child, the Department must prove by clear

and convincing evidence that the parent engaged in conduct that amounts to a statutory ground

for termination and that termination is in the child’s best interest. Id. § 161.001; In re S.M.R.,

434 S.W.3d 576, 580 (Tex. 2014). Clear and convincing evidence is the level 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; In re K.M.L., 443 S.W.3d 101, 112

(Tex. 2014). In reviewing the sufficiency of the evidence, we must “provide due deference to

the decisions of the factfinder, who, having full opportunity to observe witness testimony first-

hand, is the sole arbiter when assessing the credibility and demeanor of witnesses.” In re A.B.,

437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).

               In evaluating the legal sufficiency of the evidence, we 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.” In re J.F.C., 96 S.W.3d 256, 266

(Tex. 2002); Williams v. Williams, 150 S.W.3d 436, 449 (Tex. App.—Austin 2004, pet. denied).

We “assume that the factfinder resolved disputed facts in favor of its finding if a reasonable

factfinder could do so” and “disregard all evidence that a reasonable factfinder could have

disbelieved or found to have been incredible.” J.F.C., 96 S.W.3d at 266. Our review does not

require that we disregard undisputed evidence contrary to the determination.                  K.M.L.,

443 S.W.3d at 113. If after viewing the evidence in the proper light, including undisputed

evidence that does not support the findings, we conclude that no reasonable factfinder could have

formed a firm belief or conviction that the Department carried its evidentiary burden, we will

hold that the evidence is legally insufficient. J.F.C., 96 S.W.3d at 266; Williams, 150 S.W.3d at

                                                  2
449. In considering factual sufficiency, we consider the entire record and ask whether the

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

evidence in favor of its finding.” J.F.C., 96 S.W.3d at 266. If the disputed evidence that could

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

formed a firm belief or conviction as to the truth of the Department’s allegations, we will hold

that the evidence is factually insufficient. Id.


                                     FACTUAL SUMMARY

               In April 2018, the Texas Department of Family and Protective Services filed its

original petition seeking conservatorship of Cary and Greg, explaining in an affidavit that law

enforcement was called to a motel for a domestic disturbance and that when the police arrived, a

man identified as Father fled from the scene. The affidavit stated that Father was “the aggressor

in the domestic violence” and that Mother was inside a motel room, “extremely high on

methamphetamines” and unable to provide information about the incident or about her children.

The children were outside unsupervised in a car, wearing “soiled diapers and smelling of sour

milk.” Greg was strapped into a car seat while Cary was “walking around in the car and was

observed to be eating toothpaste.” Greg had several scratches on his body and two bruised

“knots” on his forehead. Cary also had small bruises on her body.

               The final hearing on the Department’s petition started in March 2019 and resumed

in May 2019. In March, Mother and Father testified that they were homeless and did not have a

car. Father mostly criticized the Department, calling the proceeding a “witch hunt” and saying

that the Department had interfered with his efforts to find employment and housing rather than

helping reunite the family. He also testified that he and Mother:



                                                   3
       have been hunted down from state to state, this is no lie, as soon as you get a job,
       same craziness, you are drugs, you’re on drugs. And there was one time the day
       that I came to Court the guy had drugged me. . . . I thought it was nerves. It’s
       been going on many, many years and it’s so deep, I need the FBI, somebody, to
       investigate this stuff and if it’s investigat[ed] I guarantee you will find what we
       are saying is true. It sounds like craziness. It’s true. It’s really happening.


               Mother was asked whether she had given birth to another baby while the case was

pending. She answered, “No,” but said that Department caseworker Brandi Schmidt “seems to

think I did.” At that point, the Department’s attorney said, “Your Honor, I would ask to give

[Mother] her 5th Amendment pleadings and a warning that perjury is punishable by a criminal

act . . . .” 3 The trial court allowed Mother’s attorney “to advise her as he deems appropriate on

the issue.”

               At the conclusion of the March hearing, the Department asked that the parents be

ordered to take a hair follicle drug test. The trial court said, “So I’ll make that an order that we

do it on or before the end of this month,” and Mother’s and Father’s attorneys agreed that such a

deadline was acceptable.

               When the hearing reconvened in May, the trial court heard testimony by Mother,

Father, Schmidt, San Marcos Police Officer Ashley Allen, counselor Erin Mendoza, CASA

volunteer Melissa Moore, and Alexandru Apostol. Officer Allen testified that in April 2018,

when she responded to the motel’s report of domestic violence, she found that “[t]he male had

fled the scene” and that there “was a female in the motel room and two children in the car

outside”—Greg was in a car seat, and Cary was “kind of wandering around the car” and eating

toothpaste. Officer Allen testified that she saw bruises on Mother; that Mother had said Father




       3
           See U.S. Const. amend. V (privilege against self-incrimination).
                                                 4
caused the bruises; that Mother was “[c]learly under the influence of narcotics”; and that Mother

never asked about the children, who were dirty, looked neglected, and were alone in the car.

               Schmidt testified that the Department got involved with the family in April 2018,

when the police found Cary and Greg alone in the car and told the Department that Mother was

“extremely high on methamphetamines” and that Father “had fled the scene leaving the children

vulnerable.” The Department introduced into evidence a document signed by Mother in early

April acknowledging that she had used methamphetamines and marijuana and stating, “I took it

did really know what I was taking I had tried to get [Father] to go and get me some help he

wouldn’t.” (Errors in original.) Schmidt testified that Father “informed me that he did leave the

hotel,” which meant he had left the children unattended with Mother.

               Schmidt explained that the Department initially hoped to reunite the family but

that it decided to stop visitation and seek termination in January 2019 because the parents did not

provide negative hair follicle test results. Schmidt testified that Mother tested positive for drug

use when the children were removed; tested negative in May, June, July, and August 2018;

missed drug tests between September and December 2018; and tested positive for

methamphetamines and amphetamines in January 2019. Schmidt further testified that Father

took only four drug tests, that his last test—a hair follicle test taken in November 2018—came

back positive for methamphetamines, and that he had not complied with the trial court’s March

2019 order to take a drug test. Schmidt said the Department had concerns about the parents’

abilities to care for the children because “[t]hroughout the entirety of this case, both parents have

denied drug use. They haven’t really shown that—they haven’t articulated to me that they

believe it’s a problem and need help. It’s always that everybody is lying, the tests are inaccurate.

It’s everybody making these things up.”

                                                 5
               In addition to the concerns about drug use, Schmidt noted that Father had not

satisfied the requirements of his safety plan because he had not maintained monthly contact with

the Department, provided updated contact information, submitted to random drug testing,

demonstrated knowledge of protective parenting techniques, followed recommendations made in

his psychological evaluation, maintained employment, or obtained safe and stable housing.

Schmidt testified that Father’s contact with her had been “very sporadic” and that during

visitations early in the proceeding, Father refused to speak to Schmidt and at one point walked

away when she tried to have a meeting with him. She also said that the parents had told her

several times that they were homeless and staying in shelters or bus stops.

               Schmidt acknowledged that the parents had faced challenges of homelessness and

a lack of transportation. However, she noted that although they were given a card to use for

transportation to parenting classes, it still took “months” before they attended the classes.

Further, despite Father’s completion of an eight-week protective parenting class, Schmidt did not

believe he had demonstrated knowledge of how to be a protective parent because “[h]e has not

been able to articulate what changes he has made. He just proceeds to say it’s all a lie and . . .

basically, he denies any concerns the Department has so I don’t feel you can learn, demonstrate

learned behavior if you have no idea of what the concerns were.”

               Schmidt testified that Father completed a “Psycho-Social” evaluation and a

psychological evaluation but did not comply with all of the resulting recommendations. Nor did

Father complete individual therapy because his therapist referred him to a psychiatric evaluation,

after which he was to return to individual therapy, but Father did not complete the evaluation or

return to therapy. Schmidt testified that the trial court had ordered the parents in May 2018 to

attend inpatient drug treatment, which she said would have meant steady housing and clean drug

                                                6
tests for the duration of the program and could have led to assistance with housing and

employment after treatment.      However, neither parent completed inpatient treatment, and

although Schmidt acknowledged “some difficulty” in Father finding a ninety-day program, she

also said she recommended “any inpatient he can get in,” including thirty-day programs, which

are easier for men to find than are ninety-day programs.

               Asked whether she thought the parents should be given additional time to obtain

the return of their children, given the fact that they had recently secured housing and

employment, Schmidt said, “No,” and, “I don’t think that’s fair to the children. These parents

have had a year to complete services. I have no proof they are not using drugs. The last drug

tests I have are positive for amphetamines and methamphetamines which is a huge concern.”

               Schmidt testified that Cary receives play therapy; that both children receive

speech, occupational, and physical therapy; and that the children’s foster home was meeting their

needs and would be able to continue to do so in the future. Schmidt believed termination was in

the children’s best interest because the parents have “a long history of methamphetamine use,”

the Department had concerns about domestic violence and unaddressed mental health issues, the

parents had not shown they could provide safe and stable housing for the children, and the

parents had not “been able to demonstrate changes in their behaviors.” Schmidt said:



       They have not been able to show that they can provide a safe and stable
       environment for these children. Since being in foster care, both children have
       made huge progress. They are completely different children. They are talking
       and they are moving and walking and doing things they were not doing previous.
       The therapist had stated it’s imperative they have a structured environment to
       continue the growth and I don’t believe the parents can provide a structured,
       stable environment for these children.




                                                7
               Erin Mendoza, a therapist who saw both Mother and Father, testified that Father

completed an eight-session protective parenting class and that he was “usually disruptive” when

he participated in the class and made statements about how the Department “is at fault or the

legal system was at fault.” Father never recognized the danger in which he had placed the

children and did not appear to have “applied the information he heard” in class. Mendoza

explained that “he throughout the course was still defensive and not recognizing the things that

he could change in his own personal life to be a more protective parent.” Mendoza testified that

she also saw Father for several sessions of individual therapy. However, she paused therapy

because she wanted Father to complete a psychiatric evaluation before continuing, and Father

never completed that evaluation or resumed therapy. Mendoza had recommended the psychiatric

evaluation because of Father’s instability and “some of his statements” and because it “seemed

like he was fixated on feeling there was a conspiracy against him and that was a red flag for me.”

               Mendoza did not think Father understood the seriousness of the Department’s

involvement with the family, and she said her concerns about his parenting abilities arose from

“his mental health and just his perception of reality and making sure that he’s mentally healthy.”

Asked whether it would be in the children’s best interest for the parents to be given more time,

given their recent employment and housing, she said, “I guess the answer would be no. I

haven’t—based on them not following through with the service in the past that I recommended.”

She also said that “they have had a lot of time to be doing the services” but had not followed

through on Mendoza’s recommendations.

               Melissa Moore, the children’s CASA volunteer, testified that during the several

months in which she supervised visitations between the children and Father, she “started to feel a

little uncomfortable with the interactions with” Father and took steps to ensure that someone else

                                                8
was present when she had to interact with him. Asked what made her uncomfortable, Moore

said, “The way he would act and behave in front of me I would observe and then one day outside

of Court when he approached myself and my supervisor, it was erratic.” Moore said her

concerns about Father and Mother’s parenting abilities “involve a few issues. One that we have

seen the drug reports coming back inconsistently positive and negative.            And then the

continuation that after a couple of negative, they continue—they had no shows, even after the

negatives. And so that was one of my first concerns that we could not display that they were, in

fact, staying away from drugs. Additionally, is the behavior that I observed in and out of the

courtroom that is of concern.” Moore said she had no reason to believe that the parents’ drug

test results were falsified or otherwise incorrect. Moore also testified that she had only learned

that the parents had obtained employment and an apartment from the testimony that day. She did

not think Father could meet the children’s emotional or physical needs now or in the future or

provide a stable and secure home for them, and she believed they would be at risk if returned to

his care. Moore said the parents had had sufficient time to complete services and could have

finished most of them if they had participated more fully. Moore believed that there were “more

issues than homelessness and poverty” and did not believe the parents had worked hard to

address the issues within their control.

               Moore testified that the children were bonded with their foster family and that it

was her “understanding” that the “current placement would lead to permanency for the children.”

Moore said that the children were in several forms of therapy and had “needs that need to be

addressed.” She believed that the foster home was meeting those needs and could provide for

their physical and emotional needs now and in the future and that it was in the children’s best

interest for the parents’ rights to be terminated.

                                                     9
               Mother denied using methamphetamine on the day the children were removed;

denied that Father had fled the scene “because of the domestic violence”; denied endangering the

children; and insisted she had simply run into the motel room to get bottles for them. Mother

denied being under the influence of drugs during the incident and denied that a hair follicle test

taken the day after the incident was positive for methamphetamines, contrary to the

Department’s contention. Asked why she had signed the acknowledgement of substance abuse,

she said, “I told them I took something that I did not know what it was” and that at the time, she

“had reason to believe it was [methamphetamine].           That’s what it looked like.”         Mother

explained that while her children were with her and asleep, she had taken a substance that she

found under a park bench. Although she thought it was methamphetamine, she “didn’t know

what it was,” and “when the drug test results come back, there was nothing in my system.”

Mother also denied using drugs with Father and said she never saw him using drugs.

               Father testified that he, Mother, and their children had arrived in central Texas

from another state shortly before the incident at the motel, hoping that Father could find work.

They had about $6,000 and their car, both of which they lost when the car was impounded after

Mother’s arrest and the children’s removal. Father insisted that he was not present at the motel

when the police were called and that he had not left the children alone in the car. Instead, he said

that he gave them baths and put them to bed before he left the motel. Asked whether Mother was

high when he left, he said, “I have no idea of her using any drugs. I never seen her use no

drugs,” and, “My wife was . . . a little bit hysterical. She’s been through a lot of trauma.”

               Father testified that about five weeks before the hearing in May, he and Mother

had found regular employment and an apartment. He explained that before then, he had not been

able to maintain a steady job because he “had to keep coming back here” to court proceedings.

                                                 10
Father blamed many of the family’s problems on the Department, his attorney, and the court

system. When asked if the proceeding was “a conspiracy against” him and Mother, he said,

“That’s very difficult to answer. I don’t know how to answer that. Conspiracy is such a broad

thing.   Define what you mean by conspiracy?”         He denied having convictions for family

violence, denied assaulting Mother, admitted that several proceedings for protective orders had

been filed against him, and said that “all of the cases were non-founded.”

               Father admitted that he pled guilty in 2006 to a federal charge of conspiracy to

distribute fifty grams or more of methamphetamine. He also admitted smoking marijuana and

using methamphetamine in the past but denied any current use of illegal drugs, denied using any

drugs while in Texas, and said he had not had any “truthful” positive drug tests during this case.

He asserted that there were “discrepancies” with the drug tests administered to him and said he

had refused to take the drug test ordered after the March hearing because of those discrepancies.

Father testified that one of Mother’s lawyers had “said don’t take no more [drug tests], they are

up to something.” Father insisted that Mother was a good mother and that in the seven years he

had been with Mother, he had never seen her use drugs.

               Father denied that he had failed to complete individual therapy, saying that

Mendoza cancelled two sessions, that he went to three sessions, and that he “did complete

[therapy]. They told me she was done, she couldn’t help me. She was recommending me to go

see some other specialist and I never got any information about the other specialist.” Asked why

he did not complete the court-ordered inpatient drug treatment program, Father said he had gone

to “all of them” but that “[i]t’s impossible. You can’t go if they don’t accept you.” He said that

someone at a drug screening center told him that they “don’t in-house people just because they

are homeless” and that “she didn’t really think I had a drug problem because there were three

                                                11
hair strands in the report. She didn’t believe they were true, either. She said nobody gets three

hair strands in a month-and-a-half. I told her, I didn’t take three hair strands.” Father agreed he

“could have maybe tried harder to get in some kind of drug program to appease CPS” but

explained that it was difficult to work in Austin, where he had found work, and then return to

San Marcos for Department requirements. Father thought he could have done “a little more

maybe” if he and Mother had not lost their car and money following the incident at the motel.

               The subject of Mother having given birth while the case was pending was

broached again during the May hearing. Mother was asked whether she had a child while the

case was pending and said, “I plead the 5th,” while Father testified that to his knowledge, Mother

did not have a baby while the case was pending. However, the Department introduced into

evidence an affidavit signed by Mother on August 25, 2018, relinquishing her parental rights to a

son who was born August 23, 2018.

               Alexandru Apostol testified that the parents had been working for him for the last

four or five weeks. He had been paying the parents’ rent directly to their new landlord, and they

were paying him back through their paychecks. He had also been helping provide them with

transportation until they can afford a car. Apostol testified that his company generally requires

drug testing of prospective employees and that he was “pleasantly surprised” when Mother and

Father asked if they could take a hair follicle test. He had not yet received the results from those

drug tests, but he said the parents did not show signs of drug use and had thus far “behave[d]

normally, like any other employee, solid, very industrious and handy.”




                                                12
                                           DISCUSSION

               We review a trial court’s best-interest determination in light of the considerations

set out in Holley v. Adams, taking into account the children’s wishes, their emotional and

physical needs now and in the future, present and future emotional or physical danger posed to

the children, the parenting skills of those seeking custody, any programs available to assist those

seeking custody to promote the children’s best interest, plans for the children’s future, the

stability of the home or proposed placement, conduct by the parent that might show that the

parent-child relationship is inappropriate, and any excuses for the parent’s conduct. 544 S.W.2d

367, 371-72 (Tex. 1976). The Holley factors are not exhaustive, not all factors must be proved,

and a lack of evidence about some of the factors does not “preclude a factfinder from reasonably

forming a strong conviction or belief that termination is in the child’s best interest, particularly if

the evidence were undisputed that the parental relationship endangered the safety of the child.”

In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The children’s need for permanence is the paramount

consideration when determining a child’s present and future physical and emotional needs. L.R.

v. Texas Dep’t of Family & Protective Servs., No. 03-18-00125-CV, 2018 WL 3059959, at *1

(Tex. App.—Austin June 21, 2018, no pet.) (mem. op.); In re D.R.A., 374 S.W.3d 528, 533

(Tex. App.—Houston [14th Dist.] 2012, no pet.). A parent’s rights may not be terminated

merely because the children might be better off living elsewhere, but the factfinder may consider

whether termination and adoption versus an impermanent foster-care arrangement would better

serve the children’s best interest. See L.R., 2018 WL 3059959, at *1.

               The children were very young at the time of the hearing, and therefore there was

little testimony about their wishes, other than testimony that the children love their parents but

also have bonded with their foster parents and are thriving in their care. See M.R. v. Texas Dep’t

                                                  13
of Family & Protective Servs., No. 03-17-00715-CV, 2018 WL 1023899, at *3 (Tex. App.—

Austin Feb. 23, 2018, no pet.) (mem. op.) (factfinder may consider that child has bonded with

current placement, is well cared for by them, and has spent minimal time with parent).

Department witnesses testified that the children receive several kinds of therapy and were

developing well, although Mother denied that the children had any need for therapy. Moore and

Schmidt both testified that the foster home was meeting the children’s needs and would continue

to do so in the future. Moore also said she believed the children’s current foster placement

would likely become permanent.

               “[A] fact finder 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.” Williams, 150 S.W.3d at 451. The

Department got involved with the family after a report of domestic violence, and when they

arrived, they found Mother under the influence of drugs while the children were alone in the car.

Cary was “wandering” the car and eating toothpaste, Greg was strapped into a car seat, and both

children were dirty and looked neglected. Mother signed a document acknowledging using

methamphetamines and marijuana, although at trial she testified that she no longer believed that

the substance she had used—a substance she found under a bench in a park and ingested while

the children were in her care—was methamphetamines. Although Father denied that he was

present, Schmidt testified that he told her he had been present at the motel, and the police

reported that he had fled the scene. Mother had visible bruises, and she told the police that those

bruises had been caused by Father. Department witnesses indicated that the parents’ behavior

through the case was confrontational and erratic. We cannot second-guess the trial court’s

resolution of credibility or evidentiary conflicts. See A.B., 437 S.W.3d at 503.



                                                14
               Although Father denied using drugs at the time of the incident or during the

proceeding, Department evidence indicated that he tested positive for methamphetamines in

January 2019, and he failed to take numerous requested drug tests. The trial court could have

inferred from Father’s failure to take some of the requested drug tests, including the one ordered

in March 2019, that he was avoiding testing because he was using drugs. See E.S. v. Texas Dep’t

of Family & Protective Servs., No. 03-13-00846-CV, 2014 WL 2448662, at *3 (Tex. App.—

Austin May 30, 2014, no pet.) (mem. op.); In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas

2008, no pet.); In re J.T.G., 121 S.W.3d 117, 131 (Tex. App.—Fort Worth 2003, no pet.); In re

D.M., 58 S.W.3d 801, 813 (Tex. App.—Fort Worth 2001, no pet.).

               The parents were homeless and unemployed throughout the case, until about a

month before the May hearing. Although they had recently obtained employment and housing,

that development was very recent, and “evidence of a recent turn-around in behavior by the

parent does not totally offset evidence of a pattern of instability and harmful behavior in the

past.”   Smith v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d 673, 681

(Tex. App.—Austin 2005, no pet.). The Department produced evidence that the children’s foster

placement was meeting the children’s needs, that it would continue to do so in the future, and

that the placement would likely be permanent. The children’s need for permanence is of primary

consideration, a fact testified to by Schmidt and Moore in explaining why they recommended

termination. See L.R., 2018 WL 3059959, at *1; D.R.A., 374 S.W.3d at 533. Considering this

record as a whole, we cannot conclude that the evidence is legally or factually insufficient to

support the trial court’s best-interest determination. We overrule Father’s issue on appeal.




                                                15
                                       CONCLUSION

               We have overruled Father’s issue on appeal. Further, in our review of the record,

we agree with Mother’s attorney that the appeal is frivolous and without merit. We affirm the

trial court’s order of termination.



                                            __________________________________________
                                            Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Triana and Smith

Affirmed

Filed: October 23, 2019




                                              16
