in the Interest of M.D. and B.D., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00305-CV

IN THE INTEREST OF M.D. AND
B.D., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-99212J-13

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MEMORANDUM OPINION 1

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Appellant R.D. (Mother) appeals from the trial court’s judgment terminating

her parental rights to her daughters M.D. (Marcy) and B.D. (Beth). 2 In four

issues, she contends that the evidence is legally and factually insufficient to

prove any ground for termination under section 161.001(1) of the family code and

1
See Tex. R. App. P. 47.4.
2
To protect the anonymity of children connected to this appeal, we use
aliases to refer to them and to other people associated with the appeal. See Tex.
Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8(b)(2).
that the evidence is factually insufficient to prove that termination is in the

children’s best interest, as required by section 161.001(2). 3 We affirm.

Background Facts

Mother has four daughters by four different men. She gave birth to Marcy

in April 2006 and to Beth in November 2012. In October 2013, Diana Pina, who

works for the Department of Family and Protective Services (the Department),

received an assignment to investigate allegations involving Marcy and Beth. The

Department had received a call from the police on October 11, 2013 stating that

Marcy had been found with a seventeen-year-old woman who was not her

mother and who had just been arrested for theft. Pina interviewed Marcy, who

said that the woman was her uncle’s girlfriend and that she had not seen Mother

in two days. In contrast, Mother told Pina that she had left Marcy with the woman

on the morning of the woman’s arrest.

Pina learned that Mother had a criminal history and previous involvement

with the Department. 4 Mother admitted that she had recently taken Xanax and

hydrocodone without a prescription. Mother gave birth to J.T. (Julia) on

October 14, 2013. Upon her birth, Julia tested positive for cocaine and

benzodiazepines.

3
See Tex. Fam. Code Ann. § 161.001 (West 2014).
4
Mother testified that in 2008, the Department became involved when there
was a domestic dispute between her and the father of one of her children.
Mother moved away soon thereafter, and the Department was not able to
complete its investigation into that incident.

2
 Tiara Sellars finished conducting the investigation that Pina had started.

She learned that on several occasions, Mother had placed Marcy and Beth with

inappropriate caregivers and had not returned for them in the time in which she

stated she would.

Sellars confronted Mother about Julia’s positive drug test; Mother said that

she had never used cocaine, but she admitted to using marijuana, hydrocodone,

and Xanax near that time (during her pregnancy with Julia and her custody and

care of Marcy and Beth). Sellars asked Mother about the identity of Marcy’s,

Beth’s, and Julia’s fathers; Mother provided two names and approximate ages

but could not tell Sellars information about how to locate those men. The

Department removed Marcy and Beth from Mother’s custody; Julia was not

formally removed but began living outside of Mother’s home. 5

On October 16, 2013 (two days after Julia’s birth), the Department filed a

petition in which, among other relief, it asked to be named Marcy and Beth’s

temporary sole managing conservator, sought termination of Mother’s parental

rights to Marcy (who was seven years old) and Beth (who was not yet one) if

reunification could not be achieved, and asked for the appointment of an attorney

ad litem to represent the children. To its petition, the Department attached an

affidavit from Sellars. She wrote about Mother’s history with the Department, her

5
In the time period leading up to the trial, Mother had not been visiting
Julia. Julia and another one of Mother’s four daughters, who was born in
February 2008 and also did not live with Mother, had visited Marcy and Beth in
their proposed adoptive home on a regular basis.

3
struggles with drug abuse, the circumstances of the children’s removal from her

care, and the lack of familial placement options for the children. Before and after

holding an adversary hearing, 6 the trial court designated the Department as the

children’s temporary sole managing conservator.

In November 2013, the Department filed a family service plan and stated

that its permanency goal was reunification. The plan assigned several tasks to

Mother, including completing drug and alcohol assessments; submitting to

random drug tests; following a visitation plan; participating in individual

counseling and parenting classes; and maintaining contact with Adrionna

Andrews, her caseworker, on a regular basis. In December 2013, after a status

hearing, the trial court found that the service plan was reasonable and that

Mother had reviewed and understood it. In February 2014, the Department

moved the children out of foster care and placed them with distant relatives who

desired to adopt them.

In April 2014, the Department filed a document stating that its permanency

goal had changed from reunification to termination, that Mother was continuing to

test positive for drugs, that she was not “cooperative with the services being

offered to her,” and that she had not established stable housing or income. In

July 2014, the Department again informed the trial court that Mother was not

6
See Tex. Fam. Code Ann. § 262.201(a) (West 2014).

4
adequately progressing on the service plan. That month, by the Department’s

request, the trial court also suspended Mother’s visitation with the children.

After a bench trial in August 2014, 7 the trial court granted the Department’s

petition to terminate Mother’s parental rights to Marcy and Beth. The court found

that the Department had proved by clear and convincing evidence that

termination was in the children’s best interest; that Mother had knowingly placed

or knowingly allowed the children to remain in conditions or surroundings that

endangered their physical or emotional well-being; that Mother had engaged in

conduct or knowingly placed the children with persons who engaged in conduct

that endangered their physical or emotional well-being; and that Mother had

failed to comply with provisions of a court order that established the actions

necessary for her to obtain the return of Marcy and Beth, who had been in the

temporary managing conservatorship of the Department for not less than nine

months as a result of their removal for abuse or neglect. 8 Mother brought this

appeal.

Legal and Factual Sufficiency

In all of her issues, Mother challenges the sufficiency of the evidence to

sustain the findings supporting termination of her parental rights to Marcy and

7
Mother sought a continuance at the beginning of the trial so that she could
have more time to complete services. The trial court denied the motion.
8
See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (O), (2). The trial court
also terminated the parental rights of Beth’s and Marcy’s alleged fathers.

5
Beth. 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 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 554–55.

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, .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 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); In re

J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802.

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 Department

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

6
one ground listed in family code section 161.001(1) and that termination is in the

best interest of the child. Tex. Fam. Code Ann. § 161.001; E.N.C., 384 S.W.3d

at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

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 ground for

termination 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 are required to perform “an exacting review of the entire record” in

determining whether the evidence is factually sufficient to support the termination

of a parent-child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In

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

factfinder’s findings and do not supplant the judgment 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 that the

Department proved appropriate grounds for termination. See Tex. Fam. Code

Ann. § 161.001; In re C.H., 89 S.W.3d 17, 28 (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

7
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.

Endangerment

In her second issue, Mother contends that the evidence is legally and

factually insufficient to support the trial court’s finding that she engaged in

conduct or knowingly placed the children with persons who engaged in conduct

that endangered their physical or emotional well-being. See Tex. Fam. Code

Ann. § 161.001(1)(E). As we have explained,

“Endanger” means to expose to loss or injury, to jeopardize.
Under section 161.001(1)(E), the relevant inquiry is whether
evidence exists that the endangerment of the child’s . . . well-being
was the direct result of the parent’s conduct, including acts,
omissions, or failures to act. Additionally, termination under (E) must
be based on more than a single act or omission; the statute requires
a voluntary, deliberate, and conscious course of conduct by the
parent. It is not necessary, however, that the parent’s conduct be
directed at the child or that the child actually suffer injury. The
specific danger to the child’s well-being may be inferred from
parental misconduct standing alone.

In re E.P.C., 381 S.W.3d 670, 683 (Tex. App.—Fort Worth 2012, no pet.) (en

banc) (citations omitted). To determine whether subsection (E) supports

termination, we may look to Mother’s conduct both before and after the children’s

removal from her care. See In re O.R.F., 417 S.W.3d 24, 37 & n.11 (Tex. App.—

Texarkana 2013, pet. denied).

Under these standards, the evidence supports the trial court’s

endangerment finding under subsection (E). First, the record shows that Mother

has a history of using various illegal drugs. She did so before Marcy and Beth’s

8
removal, when she had custody of them and was pregnant with Julia, so the trial

court could have reasonably inferred that Mother had cared for the children under

the influence of drugs or that the children had been in the presence of drugs.

And when Mother’s parental relationship with Marcy and Beth was at risk after

their removal from her care, she continued to use illegal drugs, as evidenced by

her inability to pass random drug tests throughout the course of the litigation

below. A parent’s use of illegal drugs may qualify as conduct that endangers the

children’s physical and emotional well-being. See In re J.O.A., 283 S.W.3d 336,

345 (Tex. 2009) (“[A] parent’s use of narcotics and its effect on his or her ability

to parent may qualify as an endangering course of conduct.”); In re J.T.G., 121

S.W.3d 117, 125–26 (Tex. App.—Fort Worth 2003, no pet.) (explaining that

“[d]rug addiction and its effect on a parent’s life and ability to parent may

establish an endangering course of conduct” and relying on a mother’s continual

abuse of drugs to support the termination of her parental rights); see also In re

D.J.W., 394 S.W.3d 210, 222 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)

(“[I]llegal drug use . . . endangered D.J.W.’s emotional well-being because it

increased the risk that his relationship with his biological mother would be

permanently severed.”); In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort

Worth 2011, pet. denied) (explaining that a “parent’s decision to engage in illegal

drug use during the pendency of a termination suit, when the parent is at risk of

9
losing a child, supports a finding that the parent engaged in conduct that

endangered the child’s physical or emotional well-being”). 9

Next, the trial court could have inferred endangerment from the

circumstances of the children’s removal and information learned close to that

time. The police alerted the Department that Marcy had been found with a

seventeen-year-old woman who was arrested for theft. Marcy informed the

Department that she had not seen Mother in two days preceding the arrest. 10

And during Sellars’s follow-up investigation, she learned that Mother “had placed

[Marcy] and [Beth] with inappropriate caregivers on several occasions and had

not returned for them in the time that she stated and without provisions made for

their care and safety.” Conduct that subjects children to uncertainty and

instability endangers their physical and emotional well-being. In re M.N.G., 147

S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied) (op. on reh’g); see

also In re M.Y.G., 423 S.W.3d 504, 511 (Tex. App.—Amarillo 2014, no pet.)

(“[T]he record demonstrates that Carl was not providing proper supervision or a

safe environment for the children. Therefore, the trier of fact could form a firm

belief or conviction that Carl’s parenting fostered an endangering

9
As detailed below, Mother also failed to complete her service plan, part of
which was designed to treat her drug abuse. The trial court could have
considered this failure as support for its endangerment finding. See In re R.F.,
115 S.W.3d 804, 811 (Tex. App.—Dallas 2003, no pet.).
10
The trial court was entitled to reject Mother’s contrary statement. See
E.P.C., 381 S.W.3d at 684.

10
environment . . . .”); E.P.C., 381 S.W.3d at 683 (considering, in an analysis under

subsection (E), that a parent had left a child without providing for the child’s care

and needs).

Also, the evidence shows that Mother caused emotional harm to Marcy

shortly before the trial occurred. On July 4, 2014, in a neighborhood where the

children’s proposed adoptive family was attending a party, Mother appeared with

a friend and, according to Marcy’s perception of the event, attempted to steal her

away. A scuffle ensued, and the children were upset and had to be separated

from Mother. Jessica Barrientes, a licensed counselor, testified that this incident

was “traumatic” for Marcy; it caused her to become angry and to fear that she

would be “stolen” in future scheduled visits with Mother.

Regarding this incident, Mother testified that she went to the house where

the party was occurring to give the children some new clothes. According to

Mother, when she arrived at the house, Marcy did not look nice because her hair

had not been combed. Mother became upset, began talking to the children, and

asked the proposed adoptive mother (Melissa) if she could take Marcy across the

street to get the clothes. Mother testified that Melissa told her that she could not

take the children across the street and that after Mother stood there for a short

time, Melissa’s mother took Beth out of Mother’s arms. Mother testified that she

snatched Beth back and that Melissa’s entire family began “trying to fight [her].”

Mother stated that she retrieved the children’s clothes from her car and

apologized. Although the police arrived at the house, they did not arrest Mother.

11
 Melissa’s account of the July 4 incident differed from Mother’s story.

Melissa testified that on that day, Mother said that she wanted to bring clothes to

the kids after failing to attend a visit with them earlier that week. When Mother

arrived at the house where Melissa and the children were,

she didn’t come with the clothes. She just came, her and the friend,
and so that kind of threw up some red flags to me . . . .

So she got [Beth], and she sat down and, you know, playing
with her or whatever, and I just sat there and watched her. But then
she got up and she says, Well, I’m fixing to go and get the -- I left a
sack in my car. I’m going to go get it. And I was like, [Mother], you
know you can’t take them nowhere. And she -- like, she moved, like
yanked away from me as if she wasn’t going to -- like I couldn’t stop
her, you know.

So -- and I’m standing there talking to her back and forth, and
she was like, Well, I take -- and she grabbed my daughter on -- she
said, Well, I take her so you know I come back. And I was like, No.
And my mom was standing behind, like, where I can see my mom,
and my mom is like, What is going on? Because she see us talking,
having these words, you know. And so my mom walked up and she
grabbed [Beth], and [Mother] grabbed -- still had her leg and
wouldn’t let the baby’s leg go. So my mom did shove her, and that
was just to pull the baby to safety, because she was trying to leave.
And she actually told her friend, whoever this lady was with her, to
get [Marcy].

....

She wouldn’t get out the yard. So my husband literally picked
[Mother] up and pulled her out to the street, out of these people
yard, because she was lashing out at the owners of the home. And I
-- yeah, these are grown people. I can’t hold them. I’m really trying
to help her. . . . [B]ut she cussed me out. She went all over my
head with everything. [Emphasis added.]

Although Mother denied that she had intended to take the children away

from the house that night, the trial court had discretion to reject this testimony

12
and accept the perceptions that Marcy and Melissa had of the incident. See

E.P.C., 381 S.W.3d at 684. And even if Mother did not intend to take Marcy and

Beth away, it is undisputed that Marcy’s emotional well-being suffered as a result

of Mother’s confrontational acts.

Similarly, the evidence establishes that Marcy suffered emotional harm by

Mother’s many missed visits with her during the course of the case and that the

emotional harm caused Marcy to become physically aggressive. See In re S.R.,

Nos. 07-14-00191-CV, 07-14-00192-CV, 07-14-00215-CV, 2014 WL 4977571, at

*4 (Tex. App.—Amarillo Oct. 6, 2014, no pet.) (mem. op.) (“[T]he lack of visitation

by a parent can emotionally endanger a child’s well-being, supporting termination

under subsection 161.001(1)(E).”).

From all of these facts and the remaining evidence in the record, we

conclude that the trial court could have formed a firm belief or conviction that

Mother had engaged in conduct that endangered the children’s physical or

emotional well-being. See Tex. Fam. Code Ann. § 161.001(1)(E). Thus, we

conclude that the evidence is legally and factually sufficient to prove that ground

for termination. See id.; J.P.B., 180 S.W.3d at 573; C.H., 89 S.W.3d at 28. We

overrule Mother’s second issue. Because the family code required the

Department to prove only one ground for termination under section 161.001(1),

we decline to address Mother’s first and third issues, which challenge the

sufficiency of the evidence to prove other grounds for termination. See Tex.

13
Fam. Code Ann. § 161.001(1); Tex. R. App. P. 47.1; In re D.D.G., 423 S.W.3d

468, 475 (Tex. App.—Fort Worth 2014, no pet.).

Best interest

In her fourth issue, Mother contends that the evidence is factually

insufficient to support the trial court’s finding that termination of her parental

rights is in the children’s best interest. See Tex. Fam. Code Ann. § 161.001(2).

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

E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative

of both the subsection (1) ground and best interest. Id. at 249; C.H., 89 S.W.3d

at 28.

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). Nonexclusive

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

interest of the child include the desires of the child, the emotional and physical

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

the child now and in the future, the parental abilities of the individuals seeking

custody, the programs available to assist these individuals to promote the best

interest of the child, the plans for the child by these individuals or by the agency

seeking custody, the stability of the home or proposed placement, the acts or

omissions of the parent which may indicate that the existing parent-child

relationship is not a proper one, and any excuse for the acts or omissions of the

parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402

14
S.W.3d at 249 (stating that in reviewing a best interest finding, “we consider,

among other evidence, the Holley factors” (footnote omitted)).

As explained above, Mother has a history of using illegal drugs; she did so

while she had custody of Marcy and Beth and after their removal. 11 At trial,

Mother asked the court to give her more time to address her drug problem. She

admitted, however, that she had used marijuana within about a month of the trial,

had used cocaine about three months before the trial, and had taken ecstasy

within a week of the trial.

Carol Blackmon, the executive director of Merit Family Services, testified

that she had attempted to arrange drug-abuse treatment services for Mother.

Blackmon explained that Mother attended an initial intake and discussed a

treatment plan (including counseling) but later failed to attend several scheduled

meetings. Blackmon also explained that in January 2014, Mother tested positive

for marijuana and cocaine and that after Mother later tested positive for illegal

drugs again, Blackmon recommended inpatient treatment. According to

Blackmon, Mother “refused the inpatient suggestion.”

Mother also failed to show adequate progress on her service plan. The

Department assigned Andrews, a conservatorship worker, to Marcy and Beth’s

case. Andrews prepared a service plan for Mother with the goal of persuading

11
Mother also has a short criminal record. In November 2007, she pled
guilty and was convicted for assault causing bodily injury, a misdemeanor. Also
that month, Mother pled guilty to intending to pass a forged check and received
deferred adjudication community supervision.

15
her to address her substance abuse along with other issues concerning the

parenting of her children. Specifically, Andrews assigned Mother to complete a

drug and alcohol assessment, follow the recommendations from the assessment,

comply with random drug tests, complete parenting classes and individual

counseling, provide verification of income and housing, and maintain visits with

the girls. Mother initially maintained consistent contact with Andrews, but

Andrews testified that toward the beginning of 2014, “contact just became

sporadic and virtually nonexistent.”

According to Andrews, Mother did not fully achieve any of the service

plan’s goals: she did not complete parenting classes or individual counseling

(although she attended a few sessions), 12 did not verify any source of income or

stable housing, 13 completed a drug assessment but was dishonest about her

drug use, and visited the children regularly (although often tardily) at first but later

stopped visiting them consistently.

When the Department asked Mother at trial why she had not completed

more tasks from her service plan, she testified,

I mean, it’s hard. I can’t just get up and just -- just -- I mean, it’s
hard. My kids got took. Like, it’s something that I’m facing, and it’s
hard for me to wake up and think and know that my kids is gone. It’s

12
Andrews testified that parenting classes and individual counseling could
have helped Mother develop decision-making skills to help curb her drug use and
to help her deal with stress.
13
Mother told Andrews that she was staying in Arlington with some friends;
Andrews did not visit that home and assumed that it was not stable.

16
 a process. It’s nothing that I can just wake up and say, okay, I’m
going to stop doing this. I’m going to stop doing that. It’s a process
but I’m trying. It’s hard. It’s hard. It’s hard because those are the
only – that’s the only thing that I had, is my kids. That’s all I have. I
don’t have family out here. I don’t have no support. I don’t have
nobody to help me, so it’s hard. It’s hard.

In the six months preceding the trial, Mother had not progressed on any tasks in

her service plan. Mother testified that part of the reason that she was unable to

complete the plan was because she was depressed. On questioning from her

own counsel, Mother expressed remorse for not completing the services.

Mother regularly visited the girls from November 2013 through February

2014 but saw them only sporadically from March 2014 through the trial in August

2014. The Department canceled some visits for various reasons. Regarding the

visits that she missed with the children, Mother admitted some responsibility but

testified that sometimes, the Department failed to bring the children to visits that

she appeared for. When Mother visited the children, she acted appropriately; for

example, she occasionally brought them snacks or clothes.

Marcy was typically excited to visit Mother. Andrews testified, however,

that when Mother missed visits, Marcy became visibly upset and acted

aggressively. Andrews confronted Mother about the inconsistent visits, and

Mother said that she had “transportation issues.” Eventually, the Department

asked the trial court to order that no further visits occur because of Marcy’s

reaction to the missed visits and because of Mother’s involvement in the July 4

incident.

17
 Andrews explained that after Mother’s repeated positive drug tests, in

March 2014, the Department referred her to receive inpatient drug treatment, but

she never followed through and once expressed that she did not need treatment

and could “stop [using drugs] at any time.” 14 During the Department’s case,

Mother submitted to four random drug tests; only one returned negative.

Andrews opined that Mother could not provide a safe and healthy home for

the girls, could not meet their basic needs, and could not provide a drug-free

environment. In contrast, Andrews testified that in the children’s proposed

adoptive placement, they were happy, well-adjusted, and stable. According to

Andrews, the children’s needs were being met there.

Mother testified that when she had custody of her children, they never

went without shelter, food, or clothes. But the evidence raises doubts about

Mother’s long-term ability to support the children. At the time of trial, Mother,

who was twenty-six years old, had last had a job in 2010; she testified that she

had not been employed since then because she was “really being just a house

parent [and] taking care of [her] kids.” And Mother conceded that she does not

have familial support that could help her care for the children. Mother described

the home she was living in at the time of trial as a fully-furnished three-bedroom

duplex. She testified that her friend, Breanne, was supporting her financially and

14
Andrews’s testimony indicated that Mother’s no-shows were the main
reason that she did not receive inpatient treatment. Mother suggested that
problems with paperwork hampered her ability to receive treatment.

18
had been doing so for some time. She also testified that Breanne had a car that

she let Mother use to look for jobs but that Mother “just [had not] found” a job.

Mother testified that Breanne does not support Mother’s drug use and has

encouraged her to get clean.

The removal of the children from Mother’s care and her inability to reunite

with them by completing services and abating her drug use caused them

emotional trauma. Barrientes became Marcy’s therapist in March 2014. At the

time of the trial in August 2014, Marcy had met with Barrientes almost twenty

times. Barrientes described Marcy as a “very smart little girl” and “very verbal.”

According to Barrientes, Marcy struggled with behaving aggressively toward

other children, with anxiety about “her situation,” and with expressing anger

appropriately. But in the months that Barrientes counseled Marcy, her

aggressive behavior lessened, and she began to openly discuss her feelings.

Barrientes testified that at the time of trial, Marcy was in a “stable place.”

Barrientes recognized that Marcy loved and missed Mother but said that

Marcy was disappointed with Mother. At one point, Marcy told Barrientes, “I

knew [Mother] wouldn’t do what she needed to do for me.” Another time, Marcy

said that “[e]verybody [was] more important” to Mother than her. Regarding

Mother’s failure to complete her service plan, Marcy “knew that [Mother] was not

following through with her homework.”

Concerning Mother’s inconsistency in attending visits with Marcy,

Barrientes testified,

19
 [Marcy] was always really nervous, anxious about whether or not
visitation was going to occur. She knew when visitation was, so
when -- I usually see her the day after her scheduled visitation, and
you could tell in her play and just her attitude sometimes whether or
not a visit had occurred.

There was a few times where she was taken to the office and
mom wasn’t there, and so she would the next day tell me about that
and how angry she was and upset about that. So since the stopping
of the visitation, we’ve -- I explained to her we’re taking a break,
we’re just not doing it. She seems a lot more comfortable, a lot less
anxious. And so I think that it benefited to stop the visitation.

Melissa testified that when Mother did not attend scheduled visits with the

children, Marcy returned to the home “on a rampage.”

The trial court could have rationally determined that terminating Mother’s

rights would provide the girls with a positive, permanent, and stable home

environment. Concerning the proposed adoptive home, Barrientes testified that

Marcy was “very comfortable” and felt “like part of the family”; she had started

referring to her proposed adoptive parents as her mom and dad. Melissa

testified that Marcy and Beth had been in her care since early February 2014;

that she had passed a home study; that she had a large home that could

accommodate Marcy, Beth, and four other children; and that Marcy and Beth “get

along great” with the other children. According to Melissa, Marcy and Beth

adjusted well to living in her home; Marcy’s anxiety from when she first began

living in the home had subsided. Melissa testified that she would like to adopt

Marcy and Beth, that she will meet all of their needs, and that she plans to

continue allowing them to frequently visit Mother’s other children.

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 When Barrientes discussed the possibility of adoption with Marcy, Marcy

initially expressed a desire to live with Mother but eventually said that “she would

be okay staying where she was staying.” 15 Barrientes opined that termination of

Mother’s rights was in Marcy’s best interest because

the stability and the consistency that [she received outside of
Mother’s care was] really helpful for her. I feel like the instability and
her being the oldest child -- she did talk about having to take care of
her other siblings, younger siblings. I think she was -- from what I’m
gathering from [Marcy], was placed in an adult role. She took on a
lot of responsibilities. Now she’s being asked to be a child, go to
school, play, those sorts of things, along with the structure and
stability, consistency that she really needs.

The record also contains evidence that the trial court could have weighed

against granting the Department’s termination petition. Mother testified that

when she had custody of the girls, she had helped Marcy with homework, had

taken them to the park, and had enjoyed other experiences with them. She

acknowledged that she had made bad decisions but opined that she was not a

bad parent. She asked the trial court to not terminate her parental rights

because she did not want her children to grow up without knowing her, as she

had aged without knowing her parents.

Mother testified that Marcy loved her “to death” and was very smart and

kind. She described Beth as “sweet” and “always happy.” Mother testified that

every time she saw Marcy at visits, Marcy asked when she could come home.

15
While Barrientes talked with Marcy in general terms about adoption and
told her that she would have new permanent parents, she did not explain to
Marcy all of the consequences of the termination of Mother’s parental rights.

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Mother expressed her belief that the termination of her parental rights would

cause lasting emotional harm to Marcy. She claimed that although she had not

completed her services, she would do so if the trial court gave her more time.

According to Andrews, the girls had a good bond with Mother. During visits, they

hugged, talked, and laughed freely. Marcy became sad when Andrews told her

that she may never see Mother again. Melissa recognized that Marcy has a

bond with Mother and conceded that Marcy has expressed that she loves

Mother. But Melissa also testified that Marcy had expressed that she wanted to

be adopted by Melissa.

Mother contended that she was “willing to do whatever [she had] to do to

get [the] kids back.” But the trial court could have reasonably disbelieved this

statement because she had not, in fact, completed actions that could have

caused the children’s return to her care.

We conclude that although the trial court could have weighed some facts in

favor of returning the children to Mother or giving her more time to complete her

service plan, considering the evidence cumulatively under the relevant factors,

the trial court could have formed a firm belief or conviction that termination was in

the children’s best interest. See C.H., 89 S.W.3d at 28; Holley, 544 S.W.2d at

371–72. Specifically, the trial court could have reasonably based its best interest

finding on Mother’s history of using illegal drugs before the children’s removal;

her continued use of drugs after their removal (including near the time of the

trial), when she knew her parental rights were in jeopardy; and her failure

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complete treatment that could have abated the drug abuse. See In re J.N.H., No.

02-11-00075-CV, 2011 WL 5607614, at *8 (Tex. App.—Fort Worth Nov.17, 2011,

no pet.) (mem. op.) (considering a parent’s drug history in affirming a trial court’s

decision that termination was in the best interest of a child); In re K.W., No. 02-

07-00458-CV, 2008 WL 2639037, at *4 (Tex. App.—Fort Worth July 3, 2008, no

pet.) (mem. op.) (holding that clear and convincing evidence existed that

termination of a father’s parental rights was in a child’s best interest when,

among other facts, the father had a pattern of drug abuse).

Additionally, the trial court could have rationally based its best interest

finding on Mother’s failure to complete her service plan, her lack of income to

materially provide for the children, the emotional trauma that she had caused

Marcy after her removal, the proposed adoptive family’s bond with the children,

the proposed adoptive parents’ ability to provide permanent stability for them,

and Marcy’s acceptance of the prospect of adoption. See Tex. Fam. Code Ann.

§ 263.307(a) (West 2014) (stating that the prompt and permanent placement of a

child in a safe environment is presumed to be in the child’s best interest); In re

Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied)

(concluding that stability and permanence are important to the growth of a child

and affirming a finding that termination was in a child’s best interest when the

child was thriving in foster care); Cervantes-Peterson v. Tex. Dep’t of Family &

Protective Servs., 221 S.W.3d 244, 255 (Tex. App.—Houston [1st Dist.] 2006, no

pet.) (en banc) (concluding that a mother’s failures to follow a service plan or to

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attend appointments arranged by the Department supported a trial court’s finding

that termination was in the child’s best interest); In re U.P., 105 S.W.3d 222,

230–31 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (op. on reh’g)

(considering a child’s bond with a foster family as a factor supporting the child’s

best interest in the termination of a father’s parental rights).

The evidence is factually sufficient to clearly and convincingly support the

trial court’s finding that termination of Mother’s parental rights is in the children’s

best interest. See C.H., 89 S.W.3d at 28. We overrule Mother’s fourth issue.

Conclusion

Having overruled Mother’s second and fourth issues, which are dispositive,

we affirm the trial court’s judgment terminating Mother’s parental rights to Marcy

and Beth.

/s/ Terrie Livingston

TERRIE LIVINGSTON
CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: February 19, 2015

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