in the Interest of M.S., a Child

Opinion issued September 29, 2015

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00451-CV
———————————
IN THE INTEREST OF M.S., A CHILD

On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2014-02671J

MEMORANDUM OPINION

B.L.D., the mother, appeals from the trial court’s decree terminating her

parental rights to her daughter, M.S. She contends that the evidence was neither

legally nor factually sufficient to support the trial court’s findings that: (1) she

failed to comply with the court order setting forth the family service plan
requirements, and (2) termination of her parental rights is in M.S.’s best interest.

We affirm.

Background

In May 2012, when M.S.’s mother was nearly four months pregnant with

M.S., she was charged with theft of property of the value of more than $50 and

under $500, a class B misdemeanor. She pleaded guilty to the charge and was

sentenced to serve 15 days in the Harris County Jail.1

In July 2012, when she was about six months pregnant, M.S.’s mother was

arrested for possession of less than two ounces of marijuana, a Class B

misdemeanor, and held in the county jail. Thirty-five days later, she pleaded guilty

and was sentenced to time served. At trial, the mother denied using marijuana.

The mother gave birth to M.S. in the fall of 2012. When M.S. was

approximately six months old, the mother was charged with the offense of theft of

property valued less than $1,500, third offense, which is classified as a state jail

felony. In August 2013, the mother pleaded guilty to the charge, and received

deferred adjudication and two years’ community supervision.

When M.S. was about 18 months old, she came into the custody of the

Department of Family and Protective Services after being found in the car when

her mother was arrested in Orange County for suspicion of driving while

1
We take judicial notice of the Harris County District Clerk’s records in that case.
See TEX. R. EVID. 201(b)(2).

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intoxicated. The mother failed the field sobriety test and admitted to having taken

3 alprazolam pills before driving. The mother submitted to a blood draw, which

tested negative for alcohol but positive for prescription medications. The mother

explained at trial that she took various medications for anxiety and seizure

disorders. She admitted that her prescription medications made her feel “loopy” or

groggy, but denied being under the influence of the medications while she was

driving. At the time of the termination trial, the DWI charge remained pending in

Orange County.

The court named Child Protective Services (CPS) as the child’s temporary

managing conservator, and CPS initially placed the child with her maternal aunt.

The CPS caseworker reviewed the family service plan with the parents, and both

parents signed the plan. M.S.’s father died while this case was pending in the trial

court.

The family service plan required the mother to complete a drug and alcohol

assessment; submit to random drug screens; refrain from criminal activity; comply

with all stipulations of probation or parole, if any; participate in individual

counseling/therapy sessions concerning issues that led to M.S.’s removal; and

attend and successfully complete an approved parenting class. The plan also

required the mother to obtain and maintain permanent and appropriate housing that

would provide a safe and protective environment for M.S.

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 In March 2014, the mother was convicted of driving with a suspended

license, a Class B misdemeanor and a violation of the terms of her community

supervision. She served four days in jail in lieu of paying a fine.

Hair and urine samples were collected from the mother in June 2014. Both

samples tested positive for methamphetamine, marijuana, and alprazolam

metabolites.2 The mother denied having used either cocaine or methamphetamine;

she claimed that she had only used ecstasy. Since then, samples taken from the

mother in August 2014, October 2014, November 2014, January 2015, and March

2015 all tested negative for unprescribed or street drugs.

On October 30, 2014, the trial court approved the child’s placement with her

paternal grandmother. The mother’s counsel stated that she had no objection to

change of placement.

In February 2015, the trial court sent notice that trial would take place

starting April 9 and that the date for dismissal of the cause was April 20, 2015.

Also in February, the mother violated her community service conditions by leaving

Harris County to attend a hearing in her DWI case without obtaining permission

from her probation officer. She spent a month in jail as a result.

2
During the two-year period beginning on November 28, 2013, the mother was also
required to submit to random drug and alcohol testing as a condition of her
community supervision.

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 At trial, M.S. was two years old and living with her grandmother. A CPS

caseworker reported that M.S. was doing well in the home. She had bonded with

her grandmother.

The evidence showed that the mother is disabled because of anxiety and

seizure disorders. She receives disability income and food stamps for her support.

The mother admitted that she lacked stable housing during the past year. She

explained that it was difficult to find an apartment because of her criminal

background.

With respect to the mother’ compliance with the family service plan, the

CPS caseworker testified that the mother had completed parenting classes and the

required evaluations. The mother also began substance abuse counseling in

September 2014. The mother received a certificate of completion for drug abuse

counseling, but she had cancelled or missed a number of individual counseling

sessions. The caseworker explained that because of the mother’s delay in

completing the program, she had not yet complied with her drug abuse counselor’s

recommendation that she attend an additional nine monthly aftercare sessions.

The caseworker further testified that the mother did not regularly visit M.S.

The family service plan anticipated that the mother would have supervised

visitation with M.S. every other week. The mother, however, had only eight visits

with M.S. during the year the case was pending. The mother admitted that she

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could not visit during the month she was in jail. The grandmother testified that the

mother cancelled visitation “a lot.” She explained that the mother would arrange

for the grandmother to bring M.S. to meet her mother at a Chuck E. Cheese’s

restaurant, but the mother then failed to appear at the scheduled time. The

grandmother recounted that the last time the mother had visited with M.S., the

mother appeared to be drunk and behaved and was dressed inappropriately. The

mother harassed the Chuck E. Cheese’s staff and became so disruptive that the

restaurant staff asked her to leave. The grandmother testified that she believed it

would be in M.S.’s best interest for M.S. to remain with her.

The trial court signed an order terminating the mother’s parental rights. The

order contains the following findings:

The Court finds by clear and convincing evidence that termination of
the parent-child relationship between [the mother] and the child, M.S.,
the subject of this suit is in the child’s best interest.

Further, the Court finds by clear and convincing evidence that [the
mother] has:

• engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or
emotional well-being of the child, pursuant to § 161.001(E), Texas
Family Code;

• constructively abandoned the child who has been in the permanent
or temporary managing conservatorship of the Department of
Family and Protective Services . . . for not less than six months
and: (1) the Department . . . has made reasonable efforts to return

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 the child to the mother; (2) the mother has not regularly visited or
maintained significant contact with the child; and (3) the mother
has demonstrated an inability to provide the child with a safe
environment, pursuant to § 161.001(1)(N), Texas Family Code;

• failed to comply with the provisions of a court order that
specifically established actions necessary for the mother to obtain
the return of the child who has been in the . . . temporary managing
conservatorship of the Department of Family and Protective
Services for not less than nine months as a result of the child’s
removal from the parent under Chapter 262 for the abuse or
neglect of the child, pursuant to § 161.001(1)(O), Texas Family
Code.

The mother moved for new trial, complaining that she was entitled to

additional time to complete the family service plan. The trial court denied the

motion.

Discussion

The mother challenges the legal and factual sufficiency of the evidence

supporting the trial court’s findings that (1) she failed to comply with the family

service plan and (2) termination of her parental rights is in the best interest of the

child.

A. Standard of Review

A parent’s right to the care, custody, and control of his child is a liberty

interest protected under the Constitution, and we strictly scrutinize termination

proceedings on appeal. Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct.

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1388, 1397 (1982); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and

convincing evidence must support an involuntary termination. Holick, 685 S.W.2d

at 20 (citing Santosky, 455 U.S. at 747, 102 S. Ct. at 1391). Clear and convincing

evidence is “the measure or degree of proof that will produce in the mind of the

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

established.” TEX. FAM. CODE ANN. § 101.007 (West 2014).

When determining legal sufficiency in a parental-rights termination case, we

review “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). We

assume that the factfinder resolved disputed facts in favor of the judgment if a

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

reasonable factfinder could have disbelieved or found to have been incredible.” Id.

If a court determines that no reasonable factfinder could form a firm belief or

conviction that the matter that must be proven is true after conducting its legal-

sufficiency review, the court must conclude that the evidence is legally

insufficient. Id.

In determining factual sufficiency, we consider the entire record, including

disputed evidence, to determine “whether the evidence is such that a factfinder

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

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sought to be established. Id. (quoting 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, then the evidence is

factually insufficient.” Id.

“The involuntary-termination statute sets out twenty different courses of

parental conduct, any one of which may serve as a ground that satisfies the

statute’s first prerequisite for termination.” In re S.M.R., 434 S.W.3d 576, 580

(Tex. 2014) (citing TEX. FAM. CODE ANN. § 161.001(A)–(T)). To prevail in a

termination case, the Department must establish that one or more of the

enumerated grounds occurred.

II. Sufficiency of Predicate Termination Findings

The mother’s brief challenges only the sufficiency of the evidence to support

termination of her parental rights under section 161.001(1)(O), relating to

compliance with the family service plan. She does not challenge the trial court’s

findings relating to endangerment and abandonment. Because her argument that

the trial court did not give her sufficient time to complete the plan may implicate

the other predicate findings, we address this contention.

The mother contends that “[t]he target date on the [front of the] family

service plan”—April 16, 2015—is the actual deadline for her completion of the

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plan, and that the trial court deprived her of additional time to complete the plan by

proceeding with trial on April 9.

The family service plan document does not support her position. It identifies

April 16, 2015 as the “target date” for the “permanency goal,” and refers the reader

to the last page for definitions. The definition of “permanency goal” concerns

“where the child will live when DFPS services are done.” “Permanency goal” thus

refers not to the parent’s progress in completing the family service plan, but to the

Department’s responsibility to identify a safe, permanent living situation for the

child.

Also working against the mother’s contention, the Family Code allows a

court to terminate a parent’s rights to her child if the child has been in the State’s

custody for at least nine months and the State proves, by clear and convincing

evidence, that the parent failed to comply with a court order that specified what she

had to do to get her child back. TEX. FAM. CODE ANN. § 161.001(1)(O). M.S. had

been in the Department’s care for more than nine months before the trial began.

Under the plain language of the statute, then, the trial court had the authority to try

the case when it did.

We need not review the merits of the mother’s remaining evidentiary-

sufficiency challenge to the trial court’s service plan finding because the mother’s

brief failed to challenge the two other statutory grounds for termination that the

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trial court identified as support for the termination decision. The Department in

this case pleaded three of the statutory grounds, and the trial court found that all

three grounds supported termination of the mother’s parental rights. “Clear and

convincing proof of any one ground will support a judgment terminating parental

rights, if similar proof also exists that termination is in the child’s best interest.” In

re S.M.R., 434 S.W.3d at 580 (citing In re E.C.R., 402 S.W.3d 239, 240 (Tex.

2013)); see TEX. FAM. CODE ANN. § 161.001; In re A.V., 113 S.W.3d 355, 362

(Tex. 2003); Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85,

102 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that court need not

address appellant’s sufficiency challenge to one section 161.001(1) finding in

support of termination, because appellant failed to challenge sufficiency of

evidence supporting findings on three other section 161.001(1) grounds); accord In

re B.M., No. 14-13-00599-CV, 2013 WL 6506659, at *5 (Tex. App.—Houston

[14th Dist.] Dec. 10, 2013, no pet.); In re N.L.D., 412 S.W.3d 810, 818 (Tex.

App.—Texarkana 2013, no pet.); In re C.P.V.Y., 315 S.W.3d 260, 269 (Tex.

App.—Beaumont 2010, no pet.); see also In re K.L.G., No. 14-09-00403-CV, 2009

WL 3295018, at *2 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (observing

that appellate court is bound by unchallenged predicate findings). As two of the

trial court’s findings supporting termination are not challenged on appeal, we hold

that the trial court did not err in concluding that grounds for termination exist.

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III. Sufficiency of Best-Interest Finding

Next, the mother challenges the legal and factual sufficiency of the evidence

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

M.S.’s best interest. Unchallenged predicate findings can support a finding that

termination of a parent’s rights is in the child’s best interest. See In re C.H., 89

S.W.3d at 28 (holding that same evidence may be probative of both section

161.001(1) predicate grounds and best interest); see also In re E.C.R., 402 S.W.3d

at 249 (“Many of the reasons supporting termination under subsection O also

support the trial court’s best interest finding.”). In reviewing the evidence, we also

consider the factors originally set forth in Holley v. Adams, 544 S.W.2d 367 (Tex.

1976), which include (1) the child’s desires; (2) the child’s present and future

emotional and physical needs; (3) any present or future emotional and physical

danger to the child; (4) the parental abilities of the individuals seeking custody;

(5) the programs available to assist the individuals seeking custody to promote the

child’s best interest; (6) the plans for the child by the individuals or agency seeking

custody; (7) the stability of the home or proposed placement; (8) the parent’s acts

or omissions which may indicate that the existing parent-child relationship is

improper; and (9) any excuse for the parent’s acts or omissions. Id. at 371–72.

M.S. is too young to express her own wishes, but the evidence shows that

M.S. is doing well in her grandmother’s home and has bonded with her

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grandmother. The grandmother testified that she desires to adopt M.S. This

evidence shows that the grandmother’s home is a stable place for M.S. where her

emotional and physical needs are being met.

The mother’s behavior during her last visit with M.S. and the grandmother’s

testimony that the mother appeared to be impaired during that visit suggest that the

substance abuse problem that precipitated M.S.’s removal could recur. The

mother’s inability to obtain safe and appropriate housing and her frequent

encounters with law enforcement also support a finding that termination is in

M.S.’s best interest. The record shows that the mother violated the terms of her

community supervision at least twice, which places her at risk of having it revoked

and returning to jail. The mother served a month in jail for one violation shortly

before trial. Her unexcused absences from substance abuse counseling delayed her

completion of the program and caused her counselor to recommend additional

therapy sessions.

The mother has also cancelled numerous appointments with M.S. and her

grandmother, and sometimes she failed to appear for scheduled visits without

cancelling them. She cited transportation problems as the excuse for her lack of

dependability; the trial court, however, could have determined that this reason was

not credible. The mother made fewer than half of the visits with M.S.

contemplated in the family service plan. Given that the mother frequently did not

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appear for a visit with her daughter, the trial court reasonably could have

concluded that the mother was not in a position to care for M.S.

Considering all of this evidence in a neutral light, we hold that the evidence

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

termination of the mother’s parental rights was in M.S.’s best interest.

Conclusion

We affirm the trial court’s judgment.

Jane Bland
Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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