In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00482-CV
__________________
IN THE INTEREST OF T.R.S.
__________________________________________________________________
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. CV1712251
__________________________________________________________________
MEMORANDUM OPINION
In this parental-rights termination case, Father1 seeks to overturn the final
judgment terminating his parental rights to his daughter based on his claim that the
evidence does not support the trial court’s finding that terminating his relationship
with his daughter is in her best interest. 2 For the reasons explained below, we
1
To protect T.R.S.’s identity, we use a pseudonym for her name, her father’s
name, and the name of her foster mother. See Tex. R. App. P. 9.8(a), (b).
2
See Tex. Fam. Code Ann. § 161.001(b)(2) (West Supp. 2018).
1
conclude that legally and factually sufficient evidence is in the record to support the
trial court’s best-interest finding.
Background
The record shows the Department of Family and Protective Services sued
Father in July 2017 seeking to terminate his parental rights to Tricia based on reports
alleging that Father “ha[d] been addicted to drugs for years,” had been seen under
the influence of drugs while around Tricia, and that Tricia’s home was infested with
lice and mold. The Department also alleged that Father had not allowed the
Department’s caseworker to have access to Tricia’s home or to interview her.
The Department tried the case in a bench proceeding in December 2018. The
trial lasted two days. Tricia was six years old when the trial occurred. On the first
day of the trial, the Department called the Department’s caseworker, Tricia’s foster
mother, and the individual the trial court appointed to serve as Tricia’s court-
appointed special advocate (CASA). That same day, the court and the attorneys
representing the parties interviewed Tricia in the court’s chambers. Father also
testified on the first day of the trial. On the second day of the trial, Father called a
woman, “Mary.” 3 Mary testified that she knew Father when he was younger and that
she and Father had reconnected just months before the trial.
3
A pseudonym.
2
Generally, the testimony in the trial shows that before the Department sued,
Father had worked as a tattoo artist for over two decades. He was still working in
that occupation at the time of the trial. The evidence revealed that Father and Tricia
both love each other, and Father stated a desire to raise her. During the testimony,
Father claimed that doctors had diagnosed Tricia with autism before he and Tricia
moved to Texas. Father also testified that every time he sees Tricia, she asks him
“when she’s going to get out of” the home where she now lives.
For the most part, the trial focused on Father’s drug use. Father testified that
he is not addicted to any drugs, admitted he used a prescription stimulant in the past,
and stated he was not currently taking the stimulant but agreed that he still needs it.
Father explained that before he and Tricia moved to Texas, he smoked marijuana.
He denied using methamphetamines since leaving college “a long time ago.” During
the trial, Father agreed the drug testing he completed showed he had used marijuana
and amphetamines, but he claimed the tests do not show that he was using meth.4
Still, Father testified that the lab that did his tests should have categorized the results
assigned to his tests as false positives and not classified them as positive results.
4
The only evidence admitted in the trial about Father’s drug testing came from
witnesses who testified about the results. Neither the Department, nor Father, ever
asked the trial court to admit any of the records that contained the results of Father’s
drug tests.
3
According to Father, his tests results were positive because he had taken a
medication to prevent heartburn. Father claimed that any drug tests he missed
resulted from missing the telephone calls informing him of the dates the lab
scheduled the tests.
Father addressed questions about his work, job opportunities, the support he
provided to Tricia, and where he lived after the Department removed Tricia from his
care. Father explained that he lived with his mother for a while, but she kicked him
out, which left him no place to live. Father stated that he currently lives with the
owner and owner’s family of the tattoo shop where he works. He explained that he
often stays in the shop all night depending on his schedule. While Father denied his
current roommate has a criminal history or history with the Department, he stated
that he never asked his roommate to speak with the Department’s investigator
because he never intended to have Tricia live where he currently resides.
Father addressed his future plans for Tricia when he testified. According to
Father, he has a better job opportunity to work and earn more as the manager of a
tattoo parlor in Florida. Father explained that if the court allowed him to maintain
his possessory rights, he would stay in Texas but that his ultimate goal is to move to
Florida and manage a tattoo parlor there. Father agreed that if the court placed Tricia
with Mary, he could not help support Tricia because he has “no support here.” Father
4
reiterated: “My plan was not to be here, my plan was to be in Florida and I had it all
set up.” Father’s testimony allowed the trial court to conclude he has provided little
support to Tricia. He has supplied her with some things when she asks, like clothes
and toys.
The testimony of the Department’s caseworker shows that Father violated the
Department’s service plan and failed to complete several substance abuse programs.
The caseworker stated that Tricia came into the Department’s care in July 2017, after
the Department received a report that Father was seen under the influence of drugs
while Tricia was present. According to the caseworker, Father took drug tests in July
2017 and July 2018. The caseworker stated the tests were positive for
methamphetamine. The caseworker explained that while handling the case, she
learned that another child protective agency in another state had investigated Father
based on his reported use of drugs. The caseworker testified that after the
Department sued, Father missed over twenty of the tests he was supposed to take to
determine whether he was taking drugs. According to the caseworker, Father told
her he missed the tests because he did not want “to do drug tests for [the Department]
anymore.” She also stated she believes Father still uses illegal drugs.
The testimony in the trial addressed Father’s employment and living
arrangements. The caseworker testified that Father told the Department that he
5
worked at a tattoo parlor, but he had no paperwork to document what he made there.
During the trial, the caseworker expressed her concerns about Father’s living
arrangements. She stated that if the trial court required the Department to return
Tricia to Father, “[she] wouldn’t know where [Tricia] would be living.” The
caseworker acknowledged that Father never missed any visits with Tricia while
Tricia was in the Department’s care. The caseworker stated that she thought Father’s
parental rights should be terminated due to his failure to complete a drug
rehabilitation program required by his family service plan. She also explained that,
in her opinion, Father knowingly placed or allowed Tricia to remain in conditions or
surroundings that endangered Tricia’s physical or emotional well-being. According
to the caseworker, Tricia’s best interest would be served by terminating Father’s
rights because he could not provide Tricia a safe and stable home.
Tricia’s CASA testified that currently, Tricia is living in a home where she is
happy, playful, and active in Girl Scouts. She explained that Tricia has excellent
grades in school. According to the CASA, Tricia expressed a desire to be with Father
and to remain in the school where she has many friends. The CASA stated that Tricia
recently said “she has wished to move to Florida and go to Disney World and go to
the beach like her dad promised her.” The CASA agreed that since the Department
6
removed Tricia, Father had seen Tricia regularly, Tricia desired to see him, and he
had given Tricia toys and clothes.
That said, the CASA expressed concern about whether Father had the skills
needed to care for Tricia. According to the CASA, Father tested positive on the drug
tests that he took in the summer of 2018. She stated that Father’s current roommate
refused to cooperate with the Department’s efforts to check his background to allow
the Department to evaluate whether “it would be possible for reunification there.”
The CASA explained she had not been able to determine whether Father’s current
living arrangement offers Tricia a stable and drug-free environment. The CASA
stated she understood that Tricia’s foster mother wants to adopt Tricia, and that the
foster mother is agreeable to allowing Tricia to communicate with her Father.
According to the CASA, it would not be in Tricia’s best interest for the court to place
Tricia in Mary’s home. Finally, the CASA testified that, in her opinion, it was in
Tricia’s best interest for her Father’s rights to be terminated.
Tricia’s foster mother, “Terry,” testified in the trial about Tricia’s current
placement. According to Terry, Tricia has lived with her for almost sixteen months.
Terry stated that Tricia calls her mom, and she described Tricia as a normal six-year-
old child. Terry explained that she wants to adopt Tricia, that Tricia does well in
school, that Tricia likes to model, and that Tricia attends church and goes to movies.
7
According to Terry, Father has her phone number, but he has not contacted her often
asking to speak to Tricia even on holidays or on Tricia’s birthday. Terry explained
that Tricia attends play therapy sessions one day a week. Terry acknowledged that
if she adopted Tricia, the law would not require her to allow Father to contact Tricia.
Even so, Terry testified that she believes Father and Tricia should have an ongoing
relationship with each other. Terry explained she would leave that option open if
Father would agree to contact Tricia consistently and agree to have his visits
supervised by the Department.
The trial court interviewed Tricia in chambers during the trial.5 In the
interview, Tricia stated she wanted to continue to live in her current placement if
Father could not live with her. She explained that she wants to continue to have a
relationship with her father, that she is happy in her current placement, and that she
would like to stay in school where she has “lots of friends.” Yet Tricia stated that, if
given a choice, she would like to accompany her Father and move to Florida.
During her testimony, Mary offered to serve as Tricia’s foster mother so
Father could maintain possessory rights to Tricia. Mary explained that based on
Father’s proposed plan, the court could avoid terminating Father’s rights and
5
See id. § 153.009(b), (e) (West 2014).
8
preserve his right to one day have his rights restored as Tricia’s managing
conservator. 6
In final argument, the Department acknowledged that Tricia desires to live
with Father. It argued, however, that living with Father is not in Tricia’s best interest
because he uses illegal drugs and failed to complete a drug rehabilitation program.
The Department also argued Father violated his family service plan and had not
shown the ability to provide Tricia with a safe place to live. The attorney ad litem
who the trial court appointed to represent Tricia in the case argued that denying the
Department’s request to terminate Father’s rights while allowing Father to continue
to work on his parenting skills is the plan she thought would best serve Tricia’s
interests. Father’s attorney argued that Father is in transition, has no resources to
care for Tricia, no plans to provide Tricia significant support required to live in
Texas, and no plan to house Tricia since Texas is not the state he was planning to
make his permanent home. Father’s attorney also argued the evidence showed that
Father loved Tricia, that Father was willing to care for her based on his decision to
remain in Texas, and that Father was exercising his rights to see her.
6
Father testified that placing Tricia with Mary was “never my plan[,]” but
that Mary’s home was nice and would be a safe place for Tricia to live. He asked the
trial court to consider placing Tricia in Mary’s home.
9
When the trial ended, the trial court announced its decision to find by clear
and convincing evidence that the Department established Father’s rights should be
terminated under subsections D, E, and O.7 The trial court then advised the parties
that the court was also ruling that terminating Father’s parental rights would be in
Tricia’s best interest. 8 The day the trial court announced its ruling, it signed a
judgment terminating Father’s rights.9 The judgment is consistent with the findings
the trial court announced at the conclusion of the trial.
Standard of Review
The standards that apply to the arguments Father raises in his brief require this
Court to review the trial court’s findings “‘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.’” 10 To uphold a verdict terminating a father’s
right to parent a child, the record must establish, by clear and convincing evidence,
7
See id. § 161.001(b)(1)(D), (E), (O) (West Supp. 2018).
8
Id. § 161.001(b)(2).
9
The trial court’s judgment terminating Father’s parental rights appoints the
Department as Tricia’s permanent managing conservator. It ordered no changes over
Tricia’s current placement.
10
See In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002)).
10
(1) the parent committed one or more of the prohibited acts or omissions listed in
section 161.001(b)(1) of the Texas Family Code, and (2) that terminating the
parent’s rights is in the child’s best interest.11 Currently, the statute authorizing a
parent-child relationship to be terminated includes twenty-one grounds for
termination, any of which can authorize a factfinder to terminate a parent’s
relationship with the child. 12
Here, the trial court’s findings are based, in part, on three subsections of the
Family Code: subsection D, based on the trial court’s finding that Father knowingly
allowed Tricia to remain in conditions or surroundings that endangered her physical
or emotional well-being; subsection E, based on the trial court’s finding that Father
engaged in conduct or placed Tricia with persons who engaged in conduct that
endangered her physical or emotion well-being; and subsection O, based on the trial
court’s finding that Father violated the provisions of his court-ordered, family
service plan.13 A positive finding relying on any one of these grounds, when coupled
with a second and required finding that terminating the relationship is in the child’s
11
See Tex. Fam. Code Ann. § 161.001(b)(1), (b)(2) (West Supp. 2018).
12
See id. § 161.001(b)(1).
13
Id. § 161.001(b)(1)(D), (E), (O).
11
best interest, allows a trial court to render a judgment terminating the parent’s
relationship with his or her child.14
When reviewing a trial court’s findings, we must assume the trial court
resolved all facts in a way that favors the finding the appellant has challenged if the
evidence allowed the court to reasonably make the finding that is being challenged.15
When reviewing the evidence, we disregard all evidence that the trial court could
have disbelieved or found incredible.16 We must overrule a legal sufficiency
challenge if the evidence in the record allowed the trial court to form a firm belief
or conviction that the matter the Department had to prove was true. 17
In a factual sufficiency review, we consider and weigh all the evidence in the
record after giving deference to the trial court’s findings to avoid supplanting the
trial court’s verdict with our own.18 If, given the entire record, the disputed evidence
the trial court could not have credited in favor of its finding is so significant that the
14
See id. § 161.001(b)(2); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014).
15
In re J.F.C., 96 S.W.3d at 266.
16
Id.
17
In re J.L., 163 S.W.3d at 85.
18
In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006).
12
trial court could not have reasonably formed a firm belief or conviction that the
finding that has been challenged could have been found to be true, the appellate court
will find the evidence is factually insufficient to support the challenged finding.19
Stated another way, we give the trial court’s findings due deference to avoid
substituting our judgment for the one the trial court made based on the evidence
admitted in the trial.20
Best Interest of the Child
On appeal, Father does not argue there was not enough evidence before the
trial court to support the trial court’s findings that Father violated subsections D, E,
and O of the Family Code.21 Instead, Father challenges the legal and factual
sufficiency of the trial court’s best-interest finding.
“In determining whether the evidence is legally sufficient to support a best-
interest finding, we ‘consider the evidence that supports a deemed finding regarding
best interest and the undisputed evidence,’ and ignore evidence a fact-finder could
reasonably disbelieve.” 22 Under the Family Code, a “rebuttable presumption [exists]
19
In re J.O.A., 283 S.W.3d at 345 (citing In re J.F.C., 96 S.W.3d at 267).
20
See In re H.R.M., 209 S.W.3d at 108.
21
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O).
13
that the appointment of the parents of a child as joint managing conservators” will
serve the child’s best interest.23 Yet, this is a rebuttable presumption, and courts must
also presume that a prompt and permanent placement of the child in a safe
environment is in the child’s best interest. 24
When reviewing a best-interest finding, we consider the nine factors identified
by the Texas Supreme Court in Holly v. Adams. 25 These nine factors are not
22
In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (quoting In re J.F.C., 96
S.W.3d at 268).
23
Tex. Fam. Code Ann. § 153.131(b) (West 2014); see also In re R.R., 209
S.W.3d 112, 116 (Tex. 2006) (noting that a “strong presumption” exists favoring
keeping a child with its parents).
24
Tex. Fam. Code Ann. § 263.307(a) (West Supp. 2018).
25
In Holley, the Texas Supreme Court applied these factors when reviewing
a best-interest finding:
• the child’s desires;
• the child’s emotional and physical needs, now and in the future;
• the emotional and physical danger to the child, now and in the
future;
• the parenting abilities of the parties seeking custody;
• the programs available to assist the parties seeking custody;
• the plans for the child by the parties seeking custody;
• the stability of the home or the proposed placement;
• the parent’s acts or omissions that reveal the existing parent-child
relationship is improper; and
• any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
14
exclusive, as courts may consider other factors when weighing whether terminating
a parent’s relationship with a child would be in the child’s best interest.26 The record
also need not contain evidence addressing each of the Holley factors “particularly if
the evidence [is] undisputed that the parental relationship endangered the safety of
the child.”27 And no one Holley factor is controlling. 28 Additionally, evidence of one
factor may be enough to support a finding that terminating the relationship is in the
child’s best interest. 29 The same evidence that supports a trial court’s findings under
subsections D, E, and O may also be relevant to the trial court’s best-interest
finding.30 Best-interest findings may be based on either direct, or circumstantial
evidence, or on subjective factors the trial court may have observed in the trial.31
When evaluating what is best for a child’s future, trial courts are allowed to consider
26
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
27
Id. at 27.
28
See In re A.P., 184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.).
29
Id.
30
See In re A.M., 495 S.W.3d 573, 581 (Tex. App.—Houston [1st Dist.] 2016,
pet. denied).
31
In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet.
denied).
15
a parent’s past conduct when that conduct is relevant to the child’s best interest. 32 In
our review, we evaluate whether the evidence supports the best-interest finding from
the standpoint of the child, not the child’s parent.33
Analysis—Best-Interest Finding
Father argues there was not enough evidence to support the trial court’s
conclusion that terminating his rights served Tricia’s best interest. In his brief,
Father focuses on three aspects of the evidence to support his arguments: (1) the
statements Tricia made in chambers about wanting to maintain her relationship with
her father; (2) the evidence that he and Tricia are bonded; and (3) the evidence about
his plans for Tricia, which contemplated placing Tricia in Mary’s home while
allowing Father to preserve his possessory rights.
We look to all the evidence the trial court could have reasonably considered
relevant to its best-interest finding to evaluate whether the evidence supports the
finding.34 In contrast, Father focuses his arguments on the evidence that is contrary
32
Id.
33
See In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.)
(citing In re S.A.P., 169 S.W.3d 685, 707 (Tex. App.—Waco 2005, no pet.)).
34
In re J.F.C., 96 S.W.3d at 266 (explaining that appellate courts should look
at all the evidence in the light most favorable to the finding and credit evidence the
factfinder could have reasonably found to be clear and convincing).
16
to the trial court’s finding without discussing why other evidence in the record does
not provide sufficient support for the finding. For example, while there is substantial
evidence in the record to show that Tricia and Father love each other and have
bonded, the trial court did not have to weigh that evidence more heavily than the
evidence that addressed Tricia’s need for a safe and stable home. 35 Stated another
way, Tricia’s desire to be with her father did not require the trial court to agree with
Father’s argument that terminating his rights was contrary to Tricia’s best interests.36
Under the Family Code, endangering a child means “to expose to loss or injury
[or] to jeopardize” a child’s emotional or physical health.37 “Conduct” includes both
a parent’s acts and their failures to act.38 Here, the evidence shows that Father had a
history of taking illegal substances, including methamphetamine. The evidence
shows Father was fully aware of the fact he needed to complete a drug treatment
program so that he could create a safe and stable home for his child. But the evidence
is undisputed that Father never completed a drug treatment program, so the trial court
35
In re M.Y.G., 423 S.W.3d 504, 514 (Tex. App.—Amarillo 2014, no pet.);
see also In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—Texarkana 2003, no pet.).
36
B.B. v. Tex. Dep’t of Family & Protective Servs., 445 S.W.3d 832, 838 (Tex.
App.—El Paso 2014, no pet.).
37
In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
38
In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
17
could infer that he never gained the tools he needed to quit using drugs. The record
also allowed the trial court to infer that Father still uses illegal drugs.
Given the evidence in the record about Father’s drug abuse, the trial court
could reasonably infer that Father’s use of illegal drugs exposed Tricia to the
possibility that he could not adequately care for her or end up in jail.39 In his brief,
Father fails to address much of the evidence that is relevant to the trial court’s best-
interest finding. For example, Father never explains why the trial court could not
view his violations of the family service plan as relevant to its best-interest finding.
Father also does not argue he was unaware of the requirement that he complete a
drug treatment program to be considered a parent with the skills he needed to capably
raise a child.
39
See Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608,
617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (noting evidence of drug
use to explain that the parent engaged in an endangering course of conduct); In re
M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.) (explaining that
parent’s history of drug use is relevant to reviewing a challenge to a best-interest
finding); Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81,
86-87 (Tex. App.—Dallas 1995, no writ) (allowing factfinder to weigh a parent’s
drug-related conduct in deciding what would be in the child’s best interest); see also
Tex. Fam. Code Ann. § 263.307(b)(8) (West Supp. 2018) (providing that courts may
consider the parent’s history of substance abuse by the parent or others having access
to the child when considering whether the child’s parent is willing and able to
provide the child with a safe environment).
18
The evidence showing Father had historically used illegal drugs and continues
to use them supports the trial court’s best-interest finding.40 The evidence that Father
refused to cooperate with a regular drug test program offers additional support for
the trial court’s inference that Father continues to use illegal drugs. 41 We conclude
the record contains clear and convincing evidence sufficient to allow the trial court
to decide that Father voluntarily, deliberately, and consciously engaged in a course
of conduct that endangered Tricia’s well-being.42
The evidence relevant to the conditions in which Father was housing Tricia
before the Department removed her from Father’s care proves additional support for
the trial court’s best-interest finding. The evidence allowed the trial court to infer
that Father did not have the parenting skills or the resources that are needed to raise
a child. 43 Father provided little financial support to assist the Department with the
40
See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (explaining that many
findings relevant to a trial court’s conclusion about a parent’s violations of court-
ordered, family service plans can support a trial court’s best-interest finding).
41
See In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied);
In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.).
42
Id.
43
In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort Worth 2004, pet.
denied); see also Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987).
19
expenses of Tricia’s care. Father also testified that he lacks any prospects of getting
a better job in Texas. This testimony, when considered against a backdrop that Father
was using and continued to use meth, together with evidence about his lack of
income or prospects for a job that paid more allowed the trial court to infer that he
probably would never be able to provide Tricia with a safe or a stable home. While
Father offered an alternative plan allowing Mary to raise Tricia in her home, the trial
court may have inferred that plan did not serve Tricia’s best interest given that Tricia
and Mary are unrelated to one another and that Tricia and Mary first met on the first
day of the trial.44
Father argues that his plan for Tricia was better than the plan offered by the
Department. We review a trial court’s best-interest finding, however, in the light that
most favors the trial court’s finding.45 The trial court rejected Father’s plan, and its
decision was not unreasonable on the record that is before us here. The trial court
was entitled to consider the Department’s plan to be superior and in Tricia’s best
interest since it allowed Tricia to remain in a school where she has friends and gave
Tricia the prospect of being adopted and raised by an adult in a safe and stable home.
44
See In re A.B., 412 S.W.3d 588, 599 (Tex. App.—Fort Worth 2013), aff’d,
437 S.W.3d 498 (Tex. 2014).
45
In re J.L., 163 S.W.3d at 85.
20
We conclude the record contains legally and factually sufficient evidence
supporting the trial court’s best-interest finding. Therefore, we overrule Father’s sole
issue.
Conclusion
For the reasons we explained above, we affirm the trial court’s judgment.
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on May 6, 2019
Opinion Delivered June 13, 2019
Before McKeithen, C.J., Horton and Johnson, JJ.
21
in the Interest of T.R.S.
Combined Opinion