in the Interest of Z.B., a Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00175-CV

IN THE INTEREST OF Z.B., A
CHILD

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-98709J-13

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MEMORANDUM OPINION1

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After a bench trial, the trial court terminated H.B.’s (Mother’s) parental

rights to her daughter, Z.B. (Zoey).2 In one issue, Mother contends the evidence

1
See Tex. R. App. P. 47.4.
2
We refer to Z.B. by the fictitious name “Zoey.” See Tex. Fam. Code Ann.
§ 109.002(d) (West 2014); Tex. R. App. P. 9.8(b)(2).
is legally and factually insufficient to support the finding that termination is in

Zoey’s best interest. We affirm.

I. The Evidence

The Removal

The Texas Department of Family and Protective Services (the Department)

received a referral in June 2013 after Zoey was born exposed to marijuana. The

referral also included allegations that Mother had tested positive for marijuana

during the pregnancy and had previously attempted suicide. The Department’s

investigation supervisor (the investigator) testified that Mother confirmed at the

hospital that she had used marijuana during her pregnancy, that she had been

admitted to a psychiatric ward the previous year due to an attempted suicide, and

that she had been diagnosed as bipolar. Mother, who was seventeen at the

time, admitted smoking marijuana since she was fourteen. The investigator

testified Mother disclosed that her own mother (Grandmother) was an active

crack addict and would have access to both Mother and Zoey. The investigator

said Mother indicated she lived primarily with her grandmother (Great

Grandmother) or other relatives. The investigator stated Mother had no job and

no realistic plan regarding how she was going to take care of Zoey. The

investigator related that Mother had admitted she was not ready to care for Zoey

and, further, that she would not be ready until she was eighteen. As for Zoey,

the investigator determined she had aspiration issues, had a high level of

medical needs, and would require ongoing care from a specialist. The

2
investigator concluded it was clear Mother would not be able to meet Zoey’s

needs at that time. The investigator testified that Mother acknowledged her life

was unstable, Grandmother used crack, her other relatives were not supportive,

she had no financial support, and she had moved from one location to another to

get the resources she needed. Regarding work, the investigator said Mother

admitted prostituting herself with one of the alleged fathers in order to get back

the food stamp card that Grandmother had sold to the alleged father.

Family and Fictive Kin Placement Options Fail

The Department looked into relatives or alternate placements. Mother

gave the name of her sister, but her sister was not able to help. A family friend,

Ms. G., was considered for placement as well, but Ms. G. was physically unable

to care for a child. The investigator said, without elaborating, Great Grandmother

was not a good option. An alleged father later signed a waiver of interest.

The Department also requested home studies on a Ms. D. and a Mr. B.

Ms. D. is Mother’s stepmother, but Mother’s stepmother had financial and drug

issues. Mr. B. is Mother’s brother. The Department expressed safety concerns

regarding his home. The conservatorship worker said the Department tried to set

up a family group conference, but Grandmother said there were no relatives who

could help.

The Department initially placed both Mother and Zoey with a family friend,

Ms. L., but that placement broke down after about a week. The investigator said

Mother indicated she no longer wanted to live with Ms. L. and did not want to be

3
forced to take care of a small child. Ms. L. stated she was done with the process

and did not want to be considered for placement. Ms. L. related she had been

trying to help Mother and her family for years. Ms. L. and Mother brought Zoey

back to the Department and asked that Zoey be placed in foster care. Both

thought foster care was appropriate. The investigator said because Mother was

seventeen, she could have gone into foster care with Zoey, but Mother declined,

saying she was not interested in taking care of a baby or ready to do so.

Zoey’s Medical Issues

The Department’s conservatorship worker said Zoey was medically needy.

Zoey had aspiration issues that required ongoing specialist care and a heart

murmur that required follow-up. Zoey received therapy twice weekly for eating

issues. Zoey required thickened liquids. Zoey would breathe thin liquids into her

lungs, which would cause congestion and make breathing difficult. Due to

weakened trunk, leg, and arm issues, Zoey was delayed in her motor skills, was

receiving therapy for them as well, and was making progress. The doctor

thought Zoey’s heart murmur would close up on its own and, therefore, did not

require any special care. Zoey had been in a dual-licensed foster home since

September 1, 2013, that was meeting Zoey’s physical and medical needs.

Mother knew Zoey had problems with swallowing and aspiration, which

required Zoey to drink thicker liquids. Mother said that was something she could

handle. Mother said she knew the basic things about taking care of a baby, and

what she did not know, she would learn by asking a doctor. The conservatorship

4
worker, however, did not think Mother could meet Zoey’s medical, physical, or

emotional needs. The Court Appointed Special Advocate (the CASA volunteer)

agreed Zoey was a medically needy child and Mother had not even scratched the

surface of what she needed to do to care for Zoey.

The Service Plan

The Department prepared a service plan for Mother, and the Department

gave Mother her service plan on August 2, 2013—about ten months before trial.

The service plan required Mother to undergo an assessment through MHMR,

complete parenting classes, undergo a drug and alcohol assessment and follow

through on any recommendations, obtain stable housing, obtain stable

employment, and demonstrate an ability to care for Zoey. Regarding Mother’s

unstable housing, the conservatorship worker said moving from home to home

with various different individuals with unknown criminal histories or drug use was

a concern. The conservatorship worker had no verification of any employment.

The conservatorship worker thought Mother had an eighth grade education and

did not have, to the conservatorship worker’s knowledge, any special skills. The

conservatorship worker said Mother did not complete her parenting classes and

individual counseling. MHMR had no record of Mother coming to it for an

evaluation. Mother did not complete a drug assessment or any drug assessment

program. The conservatorship worker concluded it was fair to say Mother did not

cooperate in her court-ordered services. Because Mother had transportation

barriers, the Department provided Mother with four or five bus passes, but when

5
Mother did not use them, the Department stopped issuing bus passes to Mother.

Mother had no personal transportation but relied, instead, on family members.

Mother testified she did not attend services because they cost money and

because the telephone numbers for the services were wrong. Mother said she

was turned away from parenting classes because they required money. The

conservatorship worker, however, stated the Department would have paid for all

services, including the drug tests. Mother said transportation was also a major

problem and she told the Department about it, but the Department’s only

response was to give her three bus passes.

The Visits and Bonding

According to the conservatorship worker, Mother attended only about thirty

percent of her visits. The conservatorship worker observed seven or eight visits

and said Mother would attend to Zoey but would hand Zoey off to someone else

if Zoey cried. The conservatorship worker did not think Zoey recognized or had a

bond with Mother. Mother provided neither supplies nor gifts.

The conservatorship worker said that since January 2014 until the trial in

May 2014, Mother had visited Zoey only three times, which was detrimental to

Mother’s ability to bond with Zoey. The conservatorship worker did not think

Zoey had bonded to Mother because Zoey appeared confused when looking at

Mother and appeared to have difficulty remembering Mother.

6
 In contrast, Mother said she enjoyed her visits with Zoey. Mother thought

Zoey had some bond with her. Mother acknowledged it was hard to bond with

someone when contact was not regular, but she nevertheless felt a bond.

The CASA volunteer testified she observed visits between Zoey and

Mother, that Mother was happy to see Zoey, and that Mother was engaged with

Zoey. She observed nothing inappropriate or disturbing about the visits.

However, the CASA volunteer said Mother’s failure to attend many visits

concerned her very much. The only other concern the CASA volunteer had was

that Mother seemed uncomfortable or unsure of herself when Zoey cried, so

Mother would hand Zoey off to someone else who was also attending the visit.

The CASA volunteer attributed it to Mother’s inexperience.

Stability of Housing

The conservatorship worker described Mother’s situation as transient. The

conservatorship worker said that over the course of the case, Mother had lived in

multiple homes with various people. The conservatorship worker said Mother

had lived with Grandmother, Great Grandmother, friends in Fort Worth, friends in

Arlington, and then friends in Fort Worth. The conservatorship worker said

moving was hard on a baby and developmentally children needed stability,

structure, safety, and familiarity with the people in the home.

Mother admitted moving from time to time. Mother said she moved in

search of stability for her and Zoey. When she felt a home was unstable, she

would move and try to find something better. Mother testified that at the time of

7
the termination trial she was living with a friend and had been living there two

weeks. Living in the home were her friend, her friend’s sister, her friend’s sister’s

baby, her friend’s mother, and her friend’s father, who was a pastor. Mother said

everyone got along and it was a stable environment. No one in the home,

including Mother, used drugs, and Mother had access to her friend’s car.

Mother’s Marijuana Use

Mother acknowledged Zoey was born positive for marijuana. Mother also

acknowledged the most likely reason Zoey tested positive was because Mother

was smoking marijuana. Mother admitted smoking marijuana in the past,

admitted smoking marijuana while not knowing she was pregnant, but denied

smoking marijuana after learning she was pregnant. Mother said she tested

positive for marijuana in March 2013 because she was around people who were

smoking and not because she personally was smoking.

The conservatorship worker said the Department arranged for Mother to

take a drug test a week before trial. Mother failed to make the appointment. The

conservatorship worker said when a parent fails to take a drug test, the

Department presumes the result would have been positive.

Whether Mother was Bipolar or Suicidal

The conservatorship worker said Mother admitted to her that Mother was

bipolar. Mother, however, denied telling the investigator she was bipolar. Mother

denied ever being clinically diagnosed as having a bipolar disorder, did not

believe she had a bipolar disorder, and had no idea why the Department thought

8
she had a bipolar disorder. She acknowledged having been evaluated at Trinity

Springs but denied being diagnosed as bipolar.

Mother also denied trying to commit suicide. Mother said she was

admitted to a hospital for an evaluation. Mother explained that Grandmother

signed her into the hospital, and it was Grandmother who said Mother was

suicidal.

Mother’s Employment

Mother said she was currently working as a cashier at Braum’s. She

started at Braum’s two days before trial. Mother said she made eight dollars an

hour and anticipated getting a raise every ninety days. Mother planned on

working at Braum’s until she could get a better job. Before that she had helped

her brother, who was an auto mechanic, and acknowledged otherwise never

having had any stable employment. Mother also acknowledged that other than

odd jobs, she did not have any other source of income and that she did not

receive any type of governmental assistance.

Mother denied ever prostituting herself. Mother said Grandmother

exchanged food stamps for money with someone named Hector, and Hector

gave Mother gifts while Mother was pregnant. Mother thought that possibly

explained why others thought she was prostituting herself. Mother denied having

any sexual relations with Hector.

Mother Attempts to Improve Her Education

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 Mother said she had been attending Everest College for the past three

months and was trying to get her GED, which she thought might take another six

months. Mother traveled to Everest College by taking the bus with passes given

to her by either her friends or her mother. After getting her GED, she planned to

continue at Everest College to earn either a two-year or four-year degree. She

thought getting a better education would enable her to obtain a better job and

earn more money.

The Department’s Plan - Adoption

The conservatorship caseworker thought termination was in Zoey’s best

interest and explained that growing up in foster care was difficult for children.

Termination would make Zoey available for adoption, and adoption offered Zoey

familial permanency. The conservatorship worker said the Department had

made reasonable efforts to return Zoey to Mother and did not think Mother had

shown she could provide a safe and stable home. The conservatorship worker

said the Department’s plan was to have the current caregivers adopt Zoey.

Zoey’s current foster parents were committed to providing her with a forever

home.

Mother’s Plans

At trial, Mother testified she loved Zoey and wanted to care for her. Mother

thought she was capable of taking care of Zoey. Mother stressed she now had a

stable home and planned on having Zoey placed with her there. Mother

indicated she had spoken to everyone in her new home and everyone was good

10
with Mother bringing Zoey home with her. Mother believed they would provide a

good support system.

Mother said she was only seventeen when Zoey was born. She now had a

valid ID, a job, and a home, and she was attending school. She said she had

everything she needed and, if given more time, would be able to provide for

Zoey. Mother said that without an income and without stable transportation, she

had not been able to work her services. Now that she had an income and stable

transportation, she was more independent. Mother did not have a driver’s

license but nevertheless intended to drive her friend’s car. Mother acknowledged

doing so was not safe, but she intended to work on getting a driver’s license too.

II. The Trial Court’s Findings and Mother’s Issue

The trial court found grounds for termination under subsections

161.001(1)(D) (endangering conditions or surroundings), 161.001(1)(E)

(endangering conduct), 161.001(1)(N) (constructively abandoned child), and

161.001(1)(O) (failure to comply with court order). See Tex. Fam. Code Ann.

§ 161.001(1)(D), (E), (N), (O) (West 2014). Mother does not contest these

findings. The trial court also found termination was in Zoey’s best interest. See

Tex. Fam. Code Ann. § 161.001(2). In one issue, Mother attacks both the legal

and factual sufficiency of the evidence to support that finding.

11
 Standards of Review

Termination Considerations Generally

In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever

permanently the relationship between a parent and a child, it must first observe

fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)

(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92

(1982)). We strictly scrutinize termination proceedings and strictly construe

involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d

796, 802 (Tex. 2012); E.R., 385 S.W.3d at 563; Holick, 685 S.W.2d at 20. The

rights of natural parents, however, are not absolute, and the 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). The purpose of the State’s intervention

in the parent-child relationship is to protect the best interests of the children, not

to punish parents for their conduct. Id.

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001 & 161.206(a); E.N.C., 384 S.W.3d

at 802. “[C]onjecture is not enough.” E.N.C., 384 S.W.3d at 810. Due process

demands this heightened standard because “[a] parental rights termination

12
proceeding encumbers a value ‘far more precious than any property right.’” E.R.,

385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397).

Evidence is clear and convincing if it “will produce in the mind of the trier of fact a

firm belief or conviction as to the truth of the allegations sought to be

established.” Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d

at 802.

For a trial court to terminate a parent-child relationship, the party seeking

termination must establish by clear and convincing evidence that the parent’s

actions satisfy one ground listed in section 161.001(1) of the Texas Family Code

and that termination is in the best interest of the child. Tex. Fam. Code Ann.

§ 161.001(1)–(2); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex.

2005). Both elements must be established; termination may not be based solely

on the best interest of the child. Tex. Dep’t of Human Servs. v. Boyd, 727

S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—

Fort Worth 2012, no pet.).

There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). But prompt

and permanent placement of the child in a safe environment is also presumed to

be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2014).

13
 The Legal Sufficiency Standard of Review

In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the challenged finding was

proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the

evidence in the light most favorable to the finding and judgment. Id. We resolve

any disputed facts in favor of the finding if a reasonable factfinder could have

done so. Id. We disregard all evidence that a reasonable factfinder could have

disbelieved. Id. We consider undisputed evidence even if it is contrary to the

finding. Id. That is, we consider evidence favorable to termination if a

reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. Id. “A lack of evidence does not constitute clear

and convincing evidence.” E.N.C., 384 S.W.3d at 808.

We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses because that is the factfinder’s province. J.P.B.,

180 S.W.3d at 573. And even when credibility issues appear in the appellate

record, we defer to the factfinder’s determinations as long as they are not

unreasonable. Id. If we determine that no reasonable factfinder could form a

firm belief or conviction that the grounds or best interest for termination were

proven, then the evidence is legally insufficient, and we must render judgment for

the parent. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

14
 The Factual Sufficiency Standard of Review

In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant them with our own. In re H.R.M.,

209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record,

a factfinder could reasonably form a firm conviction or belief about the truth of the

allegations. Tex. Fam. Code § 161.001; In re C.H., 89 S.W.3d 17, 25 (Tex.

2002). 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 in the truth

of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at

108.

We review the entire record to determine the child’s best interest. In re

E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence used to establish

grounds under subsection (1), such as endangerment and abandonment, may

prove probative when establishing best interest under subsection (2) of section

161.001 of the Texas Family Code. C.H., 89 S.W.3d at 28. Nonexclusive factors

that the trier of fact in a termination case may also use in determining the best

interest of the child include:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the
future;

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

15
 (D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote
the best interest of the child;

(F) the plans for the child by these individuals or by the agency
seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see

E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best interest finding, “we

consider, among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.

These factors are not exhaustive; some listed factors may be inapplicable

to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of

just one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

III. Discussion and Application

The Desires of the Child

Regarding the desires of the child, Zoey was approximately ten months old

at the time of trial. In the absence of evidence regarding Zoey’s desires, Mother

argues this factor effectively does nothing to support the best interest finding.

We agree this factor is inapposite to this case.
16
 The Emotional and Physical Needs of the Child Now and in the Future

Regardless of who raised Zoey, the record revealed that she was a

medically needy child. The record demonstrated that the foster family, which

also planned to adopt Zoey should Zoey become available for adoption, was

meeting Zoey’s physical and medical needs. Conversely, there was evidence

Mother at times simply declined to care for Zoey. There was also evidence

suggesting Mother’s and Zoey’s placement with Ms. L. fell apart because Mother

did not want to be forced to take care of Zoey and wanted to leave Mother’s own

placement with Ms. L. for that reason. Finally, both the conservatorship worker

and the CASA volunteer noted Mother was uncomfortable taking care of Zoey

when she cried and would hand Zoey to someone else rather than care for Zoey

herself.

There was also evidence that children developmentally need stability.

Regardless of the explanation, Mother moved frequently. Although Mother found

her current housing stable, she had been living in it only two weeks before trial.

Mother’s testimony revealed that she would move out of housing when it became

unstable in search of stability. The evidence suggested Mother’s housing

destabilized with time, and the trial judge might not have shared Mother’s

optimism about her current placement, especially if a medically needy infant were

added to the home and if Mother showed reluctance to care for the child.

The trial court could have reasonably concluded Mother had not been able

to meet Zoey’s emotional and physical needs while the case was pending and

17
would not be able to meet them thereafter. See In re J.D., 436 S.W.3d 105, 118

(Tex. App.—Houston [14th Dist.] 2014, no pet.) (“A fact finder may infer from a

parent’s past inability to meet a child’s physical and emotional needs an inability

or unwillingness to meet a child’s needs in the future.”). This factor weighs in

favor of termination being in Zoey’s best interest.

The Emotional and Physical Danger to the Child Now and in the Future

Other than Mother’s use of marijuana during the pregnancy, Mother argues

the record is devoid of any evidence of physical or emotional harm to Zoey. The

question is not one of actual harm but one of endangerment. The Department

did not need to prove that the parent’s conduct creating the danger was directed

at the child or that the child actually suffered injury to succeed in terminating

parental rights. Boyd, 727 S.W.2d at 533. “Endanger” means to expose a child

to loss or injury or to jeopardize the physical or emotional well-being of the child.

Id. Mother has not contested the trial court’s findings that she had knowingly

placed or had knowingly allowed Zoey to remain in conditions or surroundings

that endangered Zoey’s physical or emotional well-being or that she had

engaged in conduct or knowingly placed Zoey with persons who had engaged in

conduct that endangered Zoey’s physical or emotional well-being. As noted

above, Mother showed an unwillingness to care for Zoey. The trial court could

have reasonably concluded that merely because Mother was now eighteen and

not seventeen changed nothing. See J.D., 436 S.W.3d at 118 (“A fact finder may

infer from a parent’s past inability to meet a child’s physical and emotional needs

18
an inability or unwillingness to meet a child’s needs in the future.”). Similarly, as

noted above, the trial court could have reasonably found Mother’s housing

instability represented a danger to Zoey’s development. Mother’s refusal to take

a drug test a week before trial could have persuaded the trial court that Mother’s

marijuana usage was not a thing of the past. See In re C.A.B., 289 S.W.3d 874,

885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (stating that factfinder could

reasonably infer that failure to submit to drug screening was due to drug usage);

In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.) (stating

that history of drug abuse was relevant to best interest). We conclude this factor

weighs in favor of termination being in Zoey’s best interest.

The Parental Abilities of the Individuals Seeking Custody

Zoey’s foster family and prospective adoptive family were meeting her

physical and emotional needs. Mother’s handing Zoey off to another person

when Zoey cried suggested Mother was inexperienced. Mother did not complete

her parenting classes. The CASA volunteer thought Mother had not yet

scratched the surface of what she needed to do to care for Zoey. This factor

weighs in favor of termination being in Zoey’s best interest.

The Programs Available to Assist These Individuals to Promote the Best Interest
of the Child

Mother failed to take advantage of the services the Department offered

her. When offered the opportunity to go into foster care along with Zoey, Mother

declined. Mother received no government assistance. The trial court could have

19
concluded Mother failed to access assistance for herself and would fare no better

for Zoey. This factor weighs in favor of termination being in Zoey’s best interest.

The Plans for the Child by These Individuals or by the Agency Seeking Custody

Mother argues she had taken many steps to ensure the stability and safety

of both her and Zoey’s future. Mother also argues she had obtained a job, had

stopped using drugs, was working toward getting her GED, and thereafter

planned to earn a college degree. All these steps were laudable, but the trial

court could have reasonably concluded questions remained. Mother refused to

take a drug test a week before trial, which suggested she would have tested

positive. See C.A.B., 289 S.W.3d at 885 (factfinder could reasonably infer that

failure to submit to drug screening was due to drug usage). Mother obtained her

job only two days before trial. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)

(stating that even significant evidence of improved conduct, especially if it is of

short duration, does not conclusively negate the probative value of a history of

irresponsible choices); In re B.D.M., No. 02-13-00388-CV, 2014 WL 1510131, at

*8 (Tex. App.—Fort Worth Apr. 3, 2014, no pet.) (mem. op.) (stating that recent

improvement alone is not sufficient to avoid termination of parental rights); In re

K.D.C., No. 02-12-00092-CV, 2013 WL 5781474, at *16 (Tex. App.—Fort Worth

Oct. 24, 2013, no pet.) (mem. op.) (same). With or without Zoey in Mother’s

care, whether Mother had the necessary discipline to continue going to school

and obtain her GED remained to be seen. There was evidence Mother

possessed only an eighth grade education, and the trial court could have

20
reasonably questioned Mother’s optimism about making up four years of high

school within a matter of months.

The Department’s plan was to have Zoey’s current caregivers adopt Zoey.

The current caregivers could give Zoey a forever home. They were meeting

Zoey’s physical and medical needs. The Department’s plan offered stability.

Mother’s plan did not offer the same stability. This factor weighs in favor of

termination being in Zoey’s best interest.

The Stability of the Home or Proposed Placement

Mother asserts she had a stable home in which no drugs were used. She

was living with a friend, and the friend’s father was a pastor. Mother contends

the other members of the household would welcome Zoey and would provide a

good support system.

Mother had, however, lived in her current home only two weeks at the time

of trial. The trial court could have concluded whether the current home was

stable remained to be seen. Mother’s previous homes consistently became

unstable. We conclude that notwithstanding Mother’s optimism, two weeks was

insufficient to show stability. See J.O.A., 283 S.W.3d at 346 (stating that even

significant evidence of improved conduct, especially if it is of short duration, does

not conclusively negate the probative value of a history of irresponsible choices);

B.D.M., 2014 WL 1510131, at *8 (stating that recent improvement alone is not

sufficient to avoid termination of parental rights); K.D.C., 2013 WL 5781474, at

21
*16 (same). This factor weighs in favor of termination being in Zoey’s best

interest.

The Acts or Omissions of the Parent which May Indicate that the Existing Parent-
Child Relationship is not a Proper One

Mother contends the record is devoid of any acts or omissions toward

Zoey. The question is not whether the acts or omissions were directed at Zoey.

The question is whether there were any acts or omissions that suggested the

parent-child relationship was not a proper one. The evidence showed there were

such acts and omissions. When Zoey was born, Mother indicated she was not

ready to take care of her. When Zoey and Mother were both placed with Ms. L,

Mother again balked at taking care of Zoey and wanted to leave Ms. L. Mother

attended only about thirty percent of her scheduled visits with Zoey. In the

approximately four months preceding trial, Mother visited Zoey only three times.

Mother was uncooperative about working services that would have improved her

parenting. See In re A.B., 269 S.W.3d 120, 129 (Tex. App.—El Paso 2008, no

pet.) (discussing parent’s failure to complete service plan when determining best-

interest). When drug usage was an issue in the case, Mother failed to take a

drug test a week before trial. See C.A.B., 289 S.W.3d at 885 (stating that

factfinder could reasonably infer that failure to submit to drug screening was due

to drug usage); D.M., 58 S.W.3d at 814 (stating that history of drug abuse

relevant to best interest). These facts weigh in favor of termination being in

Zoey’s best interest.

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 Any Excuse for the Acts or Omissions of the Parent

Mother acknowledges she did not complete her services, but she

maintains this was due to a lack of transportation and due to the Department’s

giving her incorrect telephone numbers for the various services. There was,

however, testimony that the Department had provided Mother with bus passes

but had stopped providing them when Mother did not use them. Mother herself

testified about successfully using bus passes to go to Everest College. The trial

court could have concluded Mother knew how to use the bus system when

properly motivated and her failure to work her services was more a function of

lack of motivation than a function of lack of transportation. Regarding the

telephone numbers, the trial court could have concluded that any difficulty with

incorrect numbers could have and should have been corrected with contact and

communication with the conservatorship worker. Assuming the phone numbers

were incorrect, Mother’s inability to obtain correct phone numbers again showed

a lack of initiative and motivation.

Mother acknowledged she moved around quite a bit, but she maintained

the moves were motivated by her search for stability and her search was

ultimately successful, as she considered her current living arrangements stable.

The trial court could have, however, concluded Mother’s stated quest for stability

was itself an acknowledgement of instability. The trial court could have also

found that the two weeks Mother had been in her current home was no guaranty

of future stability. See J.O.A., 283 S.W.3d at 346 (stating that even significant

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evidence of improved conduct, especially if it is of short duration, does not

conclusively negate the probative value of a history of irresponsible choices);

B.D.M., 2014 WL 1510131, at *8 (stating that recent improvement alone is not

sufficient to avoid termination of parental rights); K.D.C., 2013 WL 5781474, at

*16 (same).

In short, the trial court could have concluded Mother’s explanations,

excuses, and optimism were all the product of immaturity. The trial court could

have also concluded Mother was no more ready at eighteen than she was at

seventeen to raise a medically needy child. See In re T.S., No. 14-05-00348-CV,

2006 WL 1642218, at *9 (Tex. App.—Houston [14th Dist.] June 15, 2006, no

pet.) (mem. op.) (stating that despite parent’s youth, focus remained on inability

to care for children and risks children would be exposed to if returned to parent).

We find this factor weighs in favor of termination being in Zoey’s best interest.

Other Factors

There was evidence Zoey had not bonded to Mother. Mother and Zoey

lived together about one week while with Ms. L. immediately after Zoey’s birth.

Thereafter Mother attended only about thirty percent of her visits with Zoey. In

the four months leading up to trial, Mother had seen Zoey only three times.

Mother maintained there was a bond despite the sporadic and infrequent visits.

The conservatorship worker, however, thought Zoey had difficulty recognizing

Mother and had no bond with her. Although it was undisputed Mother loved

Zoey and behaved appropriately during visits, the trial court could have

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reasonably found that Zoey had not bonded to Mother. See Smith v. Tex. Dep’t

of Protective & Regulatory Servs., 160 S.W.3d 673, 682 (Tex. App.—Austin

2005, no pet.) (stating that best interest focus is on the child, not the needs and

desires of the parent). Placing Zoey with Mother would have meant breaking the

established relationship Zoey had with her current placement, which she had had

since September 1, 2013 (about eight of her ten months of life), for the purpose

of establishing a nonexistent or, at best, very attenuated bond with Mother. This

weighs in favor of termination being in Zoey’s best interest.

Conclusion

Reviewing the evidence in the light most favorable to the trial court’s best

interest finding and concluding such finding was not unreasonable, we hold the

trial court could have formed a firm belief or conclusion that best interest was

proven. See J.F.C., 96 S.W.3d at 266; J.D.P., 180 S.W.3d at 573. The evidence

was legally sufficient. Similarly, after reviewing the entire record, we hold a

factfinder could have reasonably formed a firm conviction or belief that

termination was in Zoey’s best interest. See C.H., 89 S.W.3d at 28. The

evidence was factually sufficient. Using either standard, the Department met the

clear-and-convincing burden of proof. See Tex. Fam. Code Ann. § 161.001. We

overrule Mother’s issue and affirm the trial court’s judgment.

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 /s/ Anne Gardner
ANNE GARDNER
JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: October 23, 2014

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