in the Interest of A.H.

In The

Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00395-CV
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IN THE INTEREST OF A.H.
_______________________________________________________ ______________

On Appeal from the 1st District Court
Newton County, Texas
Trial Cause No. 13368
________________________________________________________ _____________

MEMORANDUM OPINION

In this appeal, S.P. challenges the legal and factual sufficiency of the

evidence supporting the trial court’s findings that statutory grounds for termination

exist and that termination is in the best interest of her daughter, A.H. See Tex.

Fam. Code Ann. § 161.001(1)(D), (E), (N), (O), (2) (West 2014). We affirm the

trial court’s judgment.

Legal and Factual Sufficiency

“The decision to terminate parental rights must be supported by clear and

convincing evidence.” In the Interest of J.L., 163 S.W.3d 79, 84 (Tex. 2005). Clear

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

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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). A

judgment will be affirmed if a parent committed one or more predicate acts or

omissions and termination is in the child’s best interest. See Tex. Fam. Code Ann.

§ 161.001 (West 2014); see also J.L., 163 S.W.3d at 84.

In reviewing the evidence for legal sufficiency, we consider all of the

evidence in the light most favorable to the termination finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction

that its finding was true. J.L., 163 S.W.3d at 84–85. We assume the factfinder

resolved any disputed facts in favor of its finding, if a reasonable factfinder could

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

disbelieved[.]” Id. at 85 (quoting In the Interest of J.F.C., 96 S.W.3d 256, 266

(Tex. 2002)).

When we review a termination of parental rights for factual sufficiency, we

give “due consideration” to any evidence that the factfinder could reasonably have

found to be clear and convincing. J.F.C., 96 S.W.3d at 266; see also In the Interest

of C.H., 89 S.W.3d 17, 25 (Tex. 2002). We consider the disputed evidence and

determine whether a reasonable factfinder could have resolved that evidence in

favor of the finding. J.F.C., 96 S.W.3d at 266. The evidence is factually

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insufficient if the disputed evidence that does not reasonably support the finding is

so significant that a factfinder could not have reasonably formed a firm belief or

conviction that the fact at issue was true. Id.

Factual Background

The trial court found that S.P. (1) knowingly placed or knowingly allowed

A.H. to remain in conditions or surroundings which endanger her physical or

emotional well-being; (2) engaged in conduct or knowingly placed A.H. with

persons who engaged in conduct which endangers the child’s physical or emotional

well-being; (3) constructively abandoned A.H., who had been in temporary

managing conservatorship of the Department for not less than six months, and (i)

the Department made reasonable efforts to return A.H. to S.P., (ii) S.P. has not

regularly visited A.H., and (iii) S.P. has demonstrated an inability to provide the

child with a safe environment; and (4) failed to comply with the provisions of a

court order that specifically established the actions necessary to obtain return of the

child in Department care for not less than nine months as a result of a removal for

abuse or neglect. See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N), (O).

S.P. testified that she started smoking marijuana at the age of nine and using

methamphetamines at age 13. At age 31, S.P had been addicted to

methamphetamine for over half of her life. S.P. described being high each morning

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as part of her daily routine before her incarceration. S.P. used drugs “off and on”

throughout her life, including during her pregnancies, and at least one of her

daughters was born with drugs in her system. 1 S.P. admitted she was around her

children while she was high on methamphetamine and that was a dangerous

situation for the children to be in. S.P. said she “spiraled down” after the

Department removed A.H., because addiction is “hard to overcome.”

The affidavit for removal that was filed with the Department’s original

petition states that the Department received two intakes for neglectful supervision

of three children, including six-month-old A.H. First, S.P. and A.H. were

reportedly living in a van with a leaking roof. A.H. was dirty and had a terrible

diaper rash. Second, the two older children reportedly found syringes and pills

while visiting with their mother, and observed S.P.’s boyfriend injecting himself

with a syringe in his neck. S.P. failed a drug test the following day, and the

children were voluntarily placed with relatives or family friends. S.P. went to a

rehabilitation facility called Franklin House for treatment, but she left the facility

and the Department filed for removal on May 8, 2012.

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Two older children were given other placements and were not the subject of
the case now on appeal. S.P. gave birth to a fourth child after CPS began its
investigation into the neglect of A.H. S.P. used methamphetamines during the
pregnancy. The same foster family was caring for both of S.P.’s younger children.
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 The Department obtained temporary managing conservatorship of A.H. and

established a family service plan for S.P. The family service plan required that

S.P. visit A.H. She was allowed two visits each month, but she had to provide a

negative drug screen before the visit could occur. Over a nine-month period, S.P.

accomplished three scheduled visits and one unscheduled visit after a court hearing

on October 24, 2012. The family service plan required random drug screens, but

S.P. failed to comply with that requirement.

The Department required confirmation of scheduled visits twenty-four hours

before each visit, and the family service plan required that S.P. maintain safe,

clean, and appropriate housing. The foster care worker never performed the

necessary home visit because S.P. failed to provide an accurate residence address.

S.P. lived with at least two different men and in at least four different towns while

A.H. was in the Department’s care.

As a result of a positive drug screen, S.P. re-entered rehabilitation at

Franklin House on January 4, 2013. A subsequent indictment accused S.P. of

delivering a controlled substance to a minor on November 23, 2012. S.P. resolved

the criminal case through a plea bargain agreement for deferred adjudication with a

ten-year period of community supervision. S.P. left Franklin House because she

was transported to court for a hearing on the criminal case and subsequently

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confined in a substance abuse felony punishment facility as a condition of

community supervision. On the date of the termination hearing, S.P. would have to

remain in the SAFP facility another few months, then go to a halfway house. She

completed a parenting class while in the SAFP facility. The foster care worker

testified that the child could not be returned to her mother in the SAFP facility and

making the Department A.H.’s permanent managing conservator would not obtain

permanency for the child.

S.P. had been in the SAFP facility approximately four months at time of the

hearing. She completed a six-week, eight-session parenting course. S.P. stated that

she would be released from SAFP in one and one half months, and she hoped that

she would be placed in a Beaumont halfway house. Once established in a halfway

house, a friend would help her get a job working at the Vidor restaurant where her

friend’s mother is the manager. S.P. would possibly be released from the halfway

house after three months.

S.P. testified that she performs community service in the community under

supervision by a squad boss and that she attends church regularly. She realizes that

when she is doing drugs she is not being a good mother. After her release to the

halfway house S.P. intends to live with a family friend she considers to be her

“mamaw.” Then she will move away from the area, perhaps to Nacogdoches where

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she hoped a friend could get her a job at the chicken plant. S.P. admitted that she

did nothing to obtain a home for her family prior to her incarceration and that

“[t]here’s nothing I can do until I’m released.”

The CASA representative, Cecelia Dixon, visited A.H. at her foster parents’

home at least once each month beginning in August 2012. Dixon stated that A.H. is

“really doing well” with her foster family and that termination of the existing

parent-child relationship and adoption by the foster family would be in the child’s

best interest. She admitted that she has not visited S.P. during the time S.P. has

been in jail and in a SAFP facility.

Ground for Termination

In her first issue, S.P. contends the trial court’s findings, including the

finding regarding subsection (O), are not supported by clear and convincing

evidence. S.P. acknowledges that A.H. was removed as a result of S.P.’s drug

addiction, but she contends the initial allegations of neglect were unsubstantiated.

Establishing grounds for termination under subsection (O) requires removal under

chapter 262 of the Texas Family Code for abuse or neglect, but “those words are

used broadly.” In the Interest of E.C.R., 402 S.W.3d 239, 248 (Tex. 2013).

Consistent with chapter 262’s removal standards, “abuse or neglect of
the child” necessarily includes the risks or threats of the environment
in which the child is placed. Part of that calculus includes the harm
suffered or the danger faced by other children under the parent’s care.
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 If a parent has neglected, sexually abused, or otherwise endangered
her child’s physical health or safety, such that initial and continued
removal are appropriate, the child has been “remov[ed] from the
parent under Chapter 262 for the abuse or neglect of the child.”

Id. (citation omitted). The Department removed A.H. because she was reported to

be living in a van with a leaking roof and her siblings were exposed to drug use by

S.P. and her boyfriend. The Department determined that it was necessary to obtain

temporary managing conservatorship over A.H. after S.P., an admitted long-time

drug addict, left the rehabilitation facility and then refused to return. S.P. claimed

she was not using drugs, but she failed a drug test on the day of the removal.

During the termination hearing, S.P. admitted she was using drugs before and after

the Department took temporary custody of A.H. The trial court could reasonably

find that the Department removed A.H. from S.P. for the abuse or neglect of A.H.

See id.

The trial court also considered evidence that supports a finding that S.P.

failed to comply with the court order. S.P. continued to abuse methamphetamines

after the Department established a family service plan and while S.P. was pregnant

with another child. She failed to pass drug screens and did not attend scheduled

visits with her child. S.P. failed to obtain appropriate housing and admitted she

could not assume custody of A.H. on the date of the termination hearing.

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 S.P. admits that she did not begin work on her parenting plan right away, but

argues that the evidence that she failed to complete the court-ordered actions

necessary to obtain the return of A.H. is factually insufficient because by the date

of the termination hearing, she had completed the parenting course and had been

“drug free” for almost seven months. Evidence that S.P. was not abusing drugs

while she was confined in a SAFP facility and that she expected to temporarily

reside with a family friend after her eventual release from the facility is not so

significant that the trial court could not form a firm conviction or belief that S.P.

failed to visit A.H., failed to obtain and maintain appropriate housing, and failed to

complete drug treatment before the date of the termination hearing. We conclude

the evidence supporting a termination finding under subsection (O) is both legally

and factually sufficient.

The judgment will be affirmed if clear and convincing evidence supports a

single termination finding and the trial court’s finding that termination is in the

best interest of the child. See J.L., 163 S.W.3d at 84. We note that S.P. admitted (1)

she used drugs while she was pregnant, (2) she was around her children while she

was high on methamphetamine, and (3) it was dangerous for her children to be

with her while she was high. The evidence that weighs against a finding of

endangerment consists of S.P.’s testimony that, although she used drugs while her

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children were in her care, they never saw her use drugs. The factfinder could

consider the children’s exposure to their mother’s drug use to be endangering, and

S.P. admitted her children saw her when she was high, even if they did not watch

her injecting methamphetamine. The evidence that weighs against the finding is

not so significant that the trial court could not have reasonably formed a firm belief

or conviction that S.P.’s drug use endangered A.H. See Tex. Fam. Code Ann. §

161.001(1)(E). We overrule issue one.

Best Interest

Regarding the child’s best interest, we consider a non-exhaustive list of

factors: (1) desires of the child; (2) emotional and physical needs of the child now

and in the future; (3) emotional and physical danger to the child now and in the

future; (4) parental abilities of the individual seeking custody; (5) programs

available to assist this individual to promote the best interest of the child; (6) plans

for the child by this individual or by the agency seeking custody; (7) stability of the

home or proposed placement; (8) acts or omissions of the parent which may

indicate that the existing parent-child relationship is not proper; and (9) any excuse

for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72

(Tex. 1976); see also Tex. Fam. Code. Ann. § 263.307(b) (West 2014).

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 S.P. argues that the Department provided little information about A.H.’s

living conditions before her removal to foster care, and other than testimony

concerning S.P.’s drug addiction provided little information about S.P.’s behavior

at that time. Because her drug addiction provides the Department’s evidence

concerning her parenting abilities, she contends the evidence that termination

would be in A.H.’s best interest is insufficient in light of the evidence of her

recovery from addiction.

S.P. failed in her first attempt to attain and maintain sobriety through a

rehabilitation facility’s program. A factfinder may infer from past relapses that

similar conduct will recur if the child is returned to the parent. See In the Interest of

I.C.W., No. 02-12-00226-CV, 2013 WL 173746, at *13 (Tex. App.—Fort Worth

Jan. 17, 2013, no pet.) (mem. op.). S.P. had achieved sobriety only while

incarcerated, and none of the evidence in the record required the factfinder to

conclude that S.P. has the skills to permanently maintain her recovery after her

release from confinement. “[E]vidence of improved conduct, especially of short-

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

use and irresponsible choices.” In the Interest of J.O.A., 283 S.W.3d 336, 346

(Tex. 2009) (analyzing evidence of endangerment under subsection

161.001(1)(E)).

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 S.P.’s current incarceration prevented her from assuming the care of A.H.

S.P. expected to obtain employment in a restaurant during her residence in a

halfway house, but had no assurance that she would be housed in a local halfway

house; she did not have a firm offer of employment; and she provided no evidence

to corroborate her claim that her friend could get her a job. S.P. hoped to obtain

long-term employment through a friend, but she admitted her plan “has not been

set into motion yet.” “[A] parent without stability, income, or a home is unable to

provide for a child’s physical and emotional needs.” In the Interest of M.C.H., No.

14-12-00103-CV, 2012 WL 1795123, at *4 (Tex. App.—Houston [14th Dist.] May

17, 2012, no pet.) (mem. op.).

The Department’s plan for A.H. was for her adoption by the foster family

that has cared for A.H. since she was sixth months old. At the time of trial, A.H.

was almost two years old and knew no parents other than her foster parents. The

CASA representative had met with the foster family monthly, and she testified that

the foster family was meeting A.H.’s emotional and physical needs. The foster

family was also caring for A.H.’s younger sister, who was eight months old at the

time of the termination hearing.

As the sole finder of fact, the trial court could reasonably form a firm

conviction or belief that (1) S.P. lacked the ability to provide stability for A.H., (2)

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the Department had found a permanent home for A.H. where her emotional and

physical needs would be met, and (3) termination would be in the child’s best

interest. The evidence of S.P.’s successful recovery while confined in the SAFP

facility and her testimony concerning her plans for the future weigh against

termination, but in light of the entire record, including the evidence of S.P.’s past

conduct and the lack of certainty in her future plans, that evidence is not so

significant that a reasonable factfinder could not reasonably have formed a firm

belief that termination of S.P.’s parental rights is in A.H.’s best interest. We

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

AFFIRMED.

________________________________
STEVE McKEITHEN
Chief Justice

Submitted on March 18, 2014
Opinion Delivered April 10, 2014

Before McKeithen, C.J., Kreger and Horton, JJ.

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