in the Interest of E.C.R. and K.F., Children

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-21-00099-CV
No. 07-21-00101-CV

IN THE INTEREST OF E.C.R. AND K.F., CHILDREN
IN THE INTEREST OF B.L., A CHILD

On Appeal from the 316th District Court
Hutchinson County, Texas
Trial Court No. 43,640, Honorable James M. Mosley, Presiding

September 17, 2021
OPINION
Before PIRTLE and PARKER and DOSS, JJ.

In appellate cause numbers 07-21-00099-CV and 07-21-00101-CV, “Kim” appeals

two final orders terminating her parental rights to three children, E.C.R., K.F., and B.L.1

The appellee is the Texas Department of Family and Protective Services. The cases

were consolidated for a bench trial. By her appeal, Kim raises two issues. In her first

1 To protect the privacy of the parties, we will refer to the appellant mother as “Kim,” the father of

B.L. as “Conrad,” and to the children by the initials “E.R.,” “K.F.,” and “B.L.” See TEX. FAM. CODE. ANN.
§ 109.002(d); TEX. R. APP. P. 9.8(b). Conrad’s parental rights were terminated in cause number 07-21-
00101-CV, but he did not appeal. The parental rights of the fathers of E.R. and K.F. were terminated in
cause number 07-21-00099-CV, but they did not appeal.
issue, Kim challenges the trial court’s jurisdiction on the basis that the final hearing was

not commenced before the statutory dismissal date set out in Family Code section

263.401. In her second issue, Kim challenges the sufficiency of the evidence to support

the trial court’s best interest finding. We affirm the judgment of termination in each case.

Background

The trial court conducted a bench trial through Zoom videoconferencing on April

14, 2021.2 The children the subject of this suit are thirteen-year-old E.R., three-year-old

K.F., and eighteen-month-old B.L. Kim is the mother of these children. Conrad is the

father of B.L.

The Department became involved with Kim, Conrad, E.R., and K.F. in September

of 2018 after receiving a report alleging negligent supervision. There were also concerns

of domestic violence between Kim and Conrad and drug use in the home. Kim admitted

to the department investigator that she had recently used marijuana. During the

investigation, Kim acknowledged that the police had been to the home concerning

allegations of methamphetamine being manufactured in the home. After the Department

obtained a court order for drug testing, Kim, Conrad, and eleven-month-old K.F. tested

positive for amphetamine and methamphetamine.

In December of 2018, the Department removed E.R. and K.F. from Kim’s care and

filed its petition for protection, conservatorship, and termination of parental rights.

2 In response to the threat presented by the COVID-19 pandemic, the Texas Supreme Court issued
numerous emergency orders authorizing “anyone involved in any hearing . . . to participate remotely, such
as by videoconferencing.” See TEX. GOV’T CODE ANN. § 22.0035(b). One such order was effective as of
the date of this hearing.

2
Following an adversary hearing, the Department was appointed temporary managing

conservator of E.R. and K.F.

In June of 2019, the Department received another report alleging neglectful

supervision by Kim and her newborn son, B.L. That report alleged that Kim was using

methamphetamine during her pregnancy. Kim admitted to using methamphetamine in

February, March, and April before B.L.’s birth, and drug testing confirmed her use of the

controlled substance. The Department removed B.L. from Kim’s care and filed its petition

for protection, conservatorship, and termination of parental rights. Following an adversary

hearing, the Department was appointed temporary managing conservator of B.L.

B.L. was placed in the same foster home as his sister, K.F.3 E.R. was placed at

the Children’s Home in Amarillo.

The Department developed a family service plan for Kim in each case. The service

plans set out several tasks and services for Kim to complete before reunification with

E.R., K.F., and B.L. could occur. These tasks and services included the following: attend

parenting classes; obtain and maintain stable housing that is appropriate and safe for the

children; obtain and maintain income sufficient for her family’s needs; maintain contact

with the caseworker; submit to random drug screens; participate in a substance abuse

assessment at Outreach, Screening, Assessment, and Referral (OSAR) and follow

recommendations; complete a psychosocial assessment and follow recommendations;

attend individual counseling; participate in and complete domestic violence education;

complete a mental health assessment at Texas Panhandle Centers (TPC); and attend

3 The foster parents intervened in both underlying cases. They have not filed an appellate brief.

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visitation. Kim also agreed to complete in-patient substance abuse treatment as a part of

her plan of service in B.L.’s case.

Kim completed some of her service plan requirements. She completed her

individual counseling, an OSAR evaluation, and the OSAR recommendation that she

attend in-patient substance abuse treatment. Kim completed parenting classes in

October of 2020, and additional parenting classes addressing autism and ADHD for E.R.

The caseworker questioned whether Kim was able to apply what she learned in these

extra classes. Kim also completed a psychosocial evaluation and a second referral to

domestic violence education classes. Kim did not obtain a mental health evaluation at

TPC or follow through with recommendations for evaluation for bipolar and anxiety

disorders.

The caseworker described Kim’s visitation with the children as “sporadic” and

inconsistent. She estimated that Kim attended less than half of the allowed visits. Kim

was afforded both in-person and video visits. When Kim attended visits in person, she

would show up late and make inappropriate comments to E.R. that left him frustrated and

unable to “deregulate.” E.R. would remain upset over his conversations with Kim for

several days. The conversations Kim had with E.R. encouraged him to be rebellious and

not comply with the rules at the Children’s Home. When Kim canceled a visit on a Friday

or Saturday morning, E.R. would be upset the entire weekend. In February of 2021, the

trial court suspended Kim’s visits with E.R. at the request of E.R.’s caseworker and on

the recommendation of E.R.’s counselor.

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 Kim claimed that a lack of transportation hindered her visits with the children. She

has been without a vehicle for three to four months. Kim testified that it is difficult to

engage with the younger children on video chats and that some of those visits were cut

short at E.R.’s request.

At the time of trial, Kim was unemployed but had income from the sale of property.

If she can obtain transportation, she plans to return to work at JBS, a local meat-packing

plant. Kim worked at JBS for approximately six months beginning in November of 2019.

In August of 2020, Kim told her caseworker that she was going to work at a Little Caesars

pizza restaurant, but she did not provide any proof of her employment there.

Kim admitted to using marijuana and methamphetamine in 2018, and to using

methamphetamine in 2019 before B.L. was born. In August of 2019, Kim attended a

thirty-day in-patient drug rehabilitation program at Serenity House in Plainview. After her

discharge, Kim tested negative on several random drug screens between September

2019 and March 2020. In April of 2020, Kim submitted to a drug test but the sample she

provided was “cold” and could not be tested. Kim did not submit to a drug test in May. In

June, Kim’s hair follicle drug test was positive for methamphetamine. When asked if she

submitted to drug testing in July of 2020, she responded that, “if I didn’t, I was probably

at work.” Kim had a negative drug test in September, which was the last test that she

took before trial. She did not submit to drug testing in October, November, or December

of 2020, or in March of 2021. The failure to submit to drug testing is considered a positive

drug test result under her service plan.

5
 Kim was diagnosed with asthma in April of 2020. She was prescribed Symbicort

and used an Equate inhaler. Kim stopped using the inhaler in June after she tested

positive for methamphetamine on a hair follicle drug test requested by the Department.

Kim attributes that positive result to using her inhaler and disputes the validity of the

positive test, contending that she was not using methamphetamine. Dr. Jimmie Valentine

testified that it is possible that the inhaler caused a false positive, but he “can’t say with

certainty.”

Kim requested that the court return her children to her. She has resided in the

same three-bedroom apartment since the Department became involved in 2018.

According to Kim, the children’s rooms are furnished with new clothes and furniture. The

caseworker conceded that Kim’s residence was appropriately furnished when she last

inspected it in November of 2020. The caseworker did not have regular contact with Kim

after November because Kim ceased communicating and cooperating with the

Department. The caseworker testified that she was not allowed inside Kim’s apartment

when she attempted a home visit in February of 2021.

E.R. is currently placed at the Children’s Home in Amarillo. He is doing well in his

current placement and the placement meets all his needs. E.R. has been diagnosed with

autism and functions at the level of a seven- to nine-year-old boy. The group home setting

at the Children’s Home helps to alleviate some of E.R.’s disruptive behaviors. He is able

to meet with his counselor regularly. E.R. attends Austin Middle School. He is doing “fair”

in school, and he is involved with the band program. E.R. has “thrived and he has

blossomed since the visits [with Kim] have been discontinued.” E.R. has previously

expressed to his counselor that he would like to return to his home with Kim, but he also

6
recently expressed an interest in moving to a foster home. According to his counselor, it

is not in E.R.’s best interest to return to Kim because E.R. is unable to assess his own

safety and well-being and he struggles with basic social skills. Kim has not demonstrated

an ability to provide E.R. the structure, boundaries, and instruction that he needs. The

caseworker stated that E.R. is a good candidate for adoption and there is a “strong

possibility” that he would be adopted. The Department’s permanency goal for E.R. is

“unrelated adoption, unrelated conservatorship.”

The two youngest children, K.F. and B.L., are currently placed together with a

foster family in Pampa, Texas. The foster family provides a safe and stable home

environment and is diligent in taking care of the needs of K.F. and B.L. The children are

taken to all their required medical appointments. The children are bonded with their foster

family and the family would like to be a permanent placement for both children and to

ultimately adopt them.

The trial court terminated Kim’s parental rights on the grounds set forth in Texas

Family Code section 161.001(b)(1)(D), (E), (N), (O), and (P). See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D), (E), (N), (O), and (P).4 The trial court further found termination of

Kim’s parental rights was in the best interest of E.R., K.F., and B.L. See § 161.001(b)(2).

The trial court appointed the Department as the managing conservator of all three

children.

4 Further references to provisions of the Texas Family Code will be by reference to “section __” or
“§ __.”

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 Applicable Law

A parent’s right to the “companionship, care, custody, and management” of his or

her child is a constitutional interest “far more precious than any property right.” Santosky

v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural

parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to

accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)

(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may

forfeit his or her parental rights by his or her acts or omissions, the primary focus of a

termination suit is protection of the child’s best interests. See id.

In a case to terminate parental rights under section 161.001 of the Family Code,

the petitioner must establish, by clear and convincing evidence, that (1) the parent

committed one or more of the enumerated acts or omissions justifying termination, and

(2) termination is in the best interest of the child. § 161.001(b). 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.”

§ 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be

established and termination may not be based solely on the best interest of the child as

determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied).

“Only one predicate finding under section 161.001[(b)](1) is necessary to support a

8
judgment of termination when there is also a finding that termination is in the child’s best

interest.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order if the

evidence is both legally and factually sufficient to support any alleged statutory ground

the trial court relied upon in terminating the parental rights if the evidence also establishes

that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at 894-95.

The clear and convincing evidence standard does not mean the evidence must

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall

that the trier of fact has the authority to weigh the evidence, draw reasonable inferences

therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the

right to resolve credibility issues and conflicts within the evidence and may freely choose

to believe all, part, or none of the testimony espoused by any particular witness. Id.

Where conflicting evidence is present, the factfinder’s determination on such matters is

generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso

1997, no writ).

The appellate court cannot weigh witness credibility issues that depend on

demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,

the appellate court must defer to the factfinder’s determinations, as long as those

determinations are not themselves unreasonable. Id.

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 Standard of Review

When reviewing the legal sufficiency of the evidence in a termination case, the

appellate court should look at all the evidence in the light most favorable to the trial court’s

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 at 266. To give appropriate

deference to the factfinder’s conclusions, we must assume that the factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We

disregard all evidence that a reasonable factfinder could have disbelieved or found to

have been not credible, but we do not disregard undisputed facts. Id. Even evidence that

does more than raise surmise or suspicion is not sufficient unless that evidence is capable

of producing a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d

101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that

no reasonable factfinder could have formed a firm belief or conviction that the matter that

must be proven was true, then the evidence is legally insufficient and we must reverse.

Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96 S.W.3d

at 266. We must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.

Id. We must also consider whether disputed evidence is such that a reasonable factfinder

could not have resolved the disputed evidence in favor of its finding. Id. If, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have credited

10
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.

Statutory Dismissal Deadline Under Section 263.401

In cases where the Department requests termination of parental rights or

conservatorship of a child, the Family Code requires the court to begin trial within one

year of appointing the Department as temporary managing conservator. § 263.401(a).

The trial court may extend the deadline once for 180 days upon a finding of “extraordinary

circumstances.” § 263.401(b). If the trial court grants an extension under subsection (b)

but fails to commence the trial on the merits before the dismissal date, “the court’s

jurisdiction over the suit is terminated and the suit is automatically dismissed without a

court order. The court may not grant an additional extension that extends the suit beyond

the required date for dismissal under Subsection (b) . . . .” § 263.401(c).

Through her first issue, Kim challenges the second extension of the dismissal date

in E.R. and K.F.’s case and argues the trial court lost jurisdiction because it failed to

render a final order or commence the final hearing by June 15, 2020, the statutory

dismissal date prescribed by section 263.401(b).

Procedural History

On December 13, 2018, the trial court entered an order of protection and named

the Department temporary managing conservator of E.R. and K.F., and a dismissal date

was set. Under section 263.401, the initial dismissal date was calculated to be December

16, 2019. § 263.401(a) (original dismissal date is “the first Monday after the first

11
anniversary of the date the court rendered a temporary order appointing the [D]epartment

as temporary managing conservator. . . .”).

At the permanency hearing on August 27, 2019, the trial court found extraordinary

circumstances necessitated that E.R. and K.F. remain in the temporary managing

conservatorship of the Department and that continuing the appointment of the

Department as temporary managing conservator was in the children’s best interest. As

a result, the trial court granted a 180-day extension pursuant to section 263.401(b) and

reset the dismissal date for June 15, 2020. A final hearing was subsequently set for June

11.

At the time of the hearing on June 11, Texas courts were subject to emergency

orders issued by the Supreme Court of Texas due to the COVID-19 pandemic. As a

result, the Department sought another extension and requested the trial court to suspend

section 263.401’s dismissal date pursuant to the court’s standing order,5 extend the

dismissal date to December 11, and reset the final hearing to August 6. The trial court

granted the Department’s request and orally rendered the following order:

[P]ursuant to [the court’s] standing order and the Supreme Court’s Twelfth
Emergency Order regarding the State of Disaster issued by the Supreme
Court [on] April 27th, 2020, the [c]ourt does extend those deadlines in both
of these cases until 30 days after the State of Emergency is lifted.6

5 The trial court’s standing order was not included in the appellate record.
6The Twelfth Emergency Order allowed a Texas court to “[m]odify or suspend any and all deadlines
and procedures . . . specifically including those in Section 263.401 of the Family Code . . . for a stated
period ending no later than 30 days after the Governor’s state of disaster has been lifted.” In re Twelfth
Emergency Order Regarding the COVID-19 State of Disaster, No. 20-9059, 2020 Tex. LEXIS 1020, at *1-
2 (Tex. Apr. 27, 2020). The Seventeenth Emergency Order had superseded the Twelfth Emergency Order
when the hearing was held on June 11. As relevant here, that order provided: “[A]ll courts in Texas may in
any case, civil or criminal[,] . . . without a participant’s consent: . . . (ii) extend the dismissal date for any
case previously retained on the court’s docket for an additional period not to exceed 180 days from the date

12
After the above recitation, the trial court conducted a permanency hearing. The trial court

signed the permanency hearing order on August 4, resetting the final hearing for August

6, and extending the dismissal date to December 11. In its written order, the court

extended the dismissal date according to section 263.401(b) but it did not reference the

applicable Supreme Court emergency order.

Analysis

Kim contends the trial court lost jurisdiction when it “again found extraordinary

circumstances warranted retaining the case” and setting a new dismissal date for another

180 days and asserts that “a potential argument that the further extension of the case

was necessary due to the Covid-19 pandemic [is] invalid” because the trial court stated

that the second extension was based on section 263.401(b). We disagree with Kim’s

assertions and hold the trial court properly extended the dismissal date.

In the absence of an extension, the automatic statutory deadline for the court to

commence the trial on the merits was June 15, 2020. See § 263.401(c). The record

shows that at the June 11 proceedings, the trial court orally pronounced its extension and

properly extended and retained the case based on the Twelfth Emergency Order and the

court’s standing order. See § 101.026 (pronouncement may be made orally in the

presence of the court reporter or in writing, “including on the court’s docket sheet or by a

separate written instrument”); Phillips v. Tex. Dep’t of Protective and Regulatory Servs.,

of this Order.” Seventeenth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d
119, 120 (Tex. May 26, 2020). This order “renewed” paragraph 3 of the Twelfth Emergency Order and
allowed courts to extend the dismissal date “for any case previously retained on the court’s docket for an
additional period not to exceed 180 days from the date of this Order.” Id.

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149 S.W.3d 814, 817 (Tex. App.—Eastland 2004, no pet.) (section 263.401(b) does not

require a written order; an oral rendition is sufficient). The Twelfth Emergency Order

specifically allowed the court to “modify or suspend” the deadlines and procedures in

section 263.401. As a result, the automatic dismissal provisions of section 263.401(c)

were suspended and the trial court was authorized to extend the dismissal deadline for

another 180 days. See E.N. v. Tex. Dep’t of Family & Protective Servs., No. 03-21-00014-

CV, 2021 Tex. App. LEXIS 4831 (Tex. App.—Austin June 17, 2021, no pet. h.) (mem.

op.) (discussing section 263.401 and Supreme Court’s emergency order relating to

COVID-19 state of disaster and stating “[t]his would theoretically have allowed the district

court to extend the case indefinitely by granting an extension under each successive

order” and noting that, “[o]nce the authorizations stopped, each of the cases where a

court had granted an extension would have to be tried before the automatic dismissal

date”). As such, section 263.401(b) remained operative as a basis to extend the dismissal

date, as recited in the trial court’s August 4 order. Moreover, the trial court’s order

granting an extension contained the findings required by section 263.401(b). In re G.X.H.,

No. 19-0959, 2021 Tex. LEXIS 345, at *20 (Tex. Apr. 30, 2021).

We conclude the trial court properly extended its jurisdiction when it orally rendered

its pronouncement on June 11, before the dismissal deadline of June 15. We further

conclude the trial court had jurisdiction when the case was tried on April 14, 2021, as the

trial court entered a subsequent order extending the dismissal date to May 10, 2021,

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pursuant to the Twenty-Ninth Emergency Order.7 See Twenty-Ninth Emergency Order

Regarding COVID-19 State of Disaster, No. 20-9135, 2020 Tex. LEXIS 1177, at *2 (Tex.

Nov. 11, 2020) (“(ii) for any case previously retained on the court’s docket pursuant to

Section 263.401(b) or (b-1), or for any case whose dismissal date was previously modified

under an Emergency Order of this Court related to COVID-19, [courts may] extend the

dismissal for an additional period not to exceed 180 days from the date of this

Order . . . .”). We overrule Kim’s issue.

Best Interest

In her remaining issue, Kim challenges the factual and legal sufficiency of the

evidence to support the best interest finding made under section 161.001(b)(2) in each

case. Kim does not contest the predicate grounds for termination under section

161.001(b)(1).

A determination of best interest necessitates a focus on the child, not the parent.

In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts

examine the entire record to decide what is in the best interest of the child. In re E.C.R.,

402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s

best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006).

7 On November 19, the trial court signed an order suspending the dismissal date and retaining suit
on court’s docket, and an order resetting final hearing pursuant to the Twenty-Ninth Emergency Order. The
trial court set the new dismissal date for May 10, 2021. The trial was held on April 14, 2021.

15
 In assessing whether termination is in a child’s best interest, the courts are guided

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.

1976). These factors include: (1) the desires of the child, (2) the emotional and physical

needs of the child now and in the future, (3) the emotional and physical danger to the child

now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the

programs available to assist these individuals to promote the best interest of the child, (6)

the plans for the child by these individuals or by the agency seeking custody, (7) the

stability of the home or proposed placement, (8) the acts or omissions of the parent that

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

for the acts or omissions of the parent. Id. “[T]he State need not prove all of the factors

as a condition precedent to parental termination, ‘particularly if the evidence were

undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,

95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory

grounds for termination may also constitute evidence illustrating that termination is in the

child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may

consider circumstantial evidence, subjective factors, and the totality of the evidence as

well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.). We must also bear in mind that a child’s need for permanence through the

establishment of a stable, permanent home has been recognized as the paramount

consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.

App.—Dallas 2007, no pet.).

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 When the Department became involved with the family in the fall of 2018, Kim,

Conrad, and K.F. tested positive for amphetamine and methamphetamine. Kim admitted

to marijuana use the week before the Department’s investigation began. After E.R. and

K.F. were removed from Kim’s care and placed in foster care, Kim continued to use

methamphetamine while she was pregnant with B.L. After B.L. was born, Kim was not

compliant with the random drug tests required under the service plan and failed to appear

for multiple drug tests requested by the Department. Those failures are considered

positive results under her service plan. A parent’s refusal to submit to drug testing may

be considered as evidence that she is continuing to abuse drugs. In re T.R.L., No. 10-

14-00290-CV, 2015 Tex. App. LEXIS 2178, at *14 (Tex. App.—Waco Mar. 5, 2015, no

pet.) (mem. op.) (“A factfinder may reasonably infer from a parent’s refusal to take a drug

test that the parent was using drugs.”); In re C.R., 263 S.W.3d 368, 374 (Tex. App.—

Dallas 2008, no pet.) (trial court could reasonably infer parent avoided taking drug tests

because she was using drugs). A parent’s drug use supports a finding that termination

of parental rights is in the best interest of the child. In re D.M.M., No. 14-16-00664-CV,

2017 Tex. App. LEXIS 47, at *13 (Tex. App.—Houston [14th Dist.] Jan. 5, 2017, pet.

denied) (mem. op.).

Moreover, Kim acknowledged that her methamphetamine use in the home was a

dangerous living environment for E.R. and K.F. and conceded that using

methamphetamine while she was pregnant with B.L. was “definitely” dangerous. The trial

court’s unchallenged predicate grounds are probative in the best interest determination.

In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(citing, inter alia, In re C.H., 89 S.W.3d at 28). Here, Kim’s parental rights were terminated

17
on the predicate grounds of endangering conditions, endangerment, constructive

abandonment, failure to comply with a court order that established actions necessary to

retain custody of the children, using a controlled substance in a manner that endangered

the health or safety of the children, and abusing a controlled substance after completion

of a court-ordered substance abuse treatment program. A parent’s drug use

demonstrates an inability to provide a stable environment for the children and an inability

to provide for the children’s emotional and physical needs. In re E.M., 494 S.W.3d 209,

222-23 (Tex. App.—Waco 2015, pet. denied). The unchallenged statutory grounds for

termination are significant in our review of the best interest finding.

Kim disputed the positive test result in June of 2020 contending she did not use

methamphetamine at that time. We are not to “second-guess the trial court’s resolution

of a factual dispute by relying on evidence that is either disputed, or that the court could

easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003). As

factfinder and sole judge of the credibility and demeanor of witnesses, the trial court was

free to credit positive test results over Kim’s denial of methamphetamine use. See In re

S.R., 452 S.W.3d 351, 365 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).

Although Kim’s expert testified that the June 2020 hair follicle test could possibly

be a false positive, the trial court could have believed that testimony was not credible.

The trier of fact is the sole judge of the credibility of the witnesses and the weight to give

their testimony. Id.

The Department also presented evidence that Kim did not consistently exercise

her periods of possession with the children. Kim’s visitation with the children was

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described as “sporadic.” In February, the trial court suspended Kim’s visits with E.R. after

E.R.’s counselor testified that Kim’s visits were detrimental to E.R. A parent’s lack of

consistency and failure to engage in visitation indicates the parent would not meet the

children’s emotional and physical needs in the future.

Although the evidence showed that Kim completed some of the service plan’s

requirements, she did not comply with significant portions of her plan, including random

drug testing, attending visitation, maintaining employment, and staying in contact with the

Department. Kim successfully completed an in-patient drug rehabilitation program in

September of 2019, but it had been more than six months since Kim had submitted to a

drug test when the final hearing was held. Kim asserts that her housing is stable because

she lives in the same three-bedroom apartment that she had when E.R. and K.F. were

removed. However, her continued illegal drug use, her failure to comply with the

Department’s drug testing, her sporadic employment, and inconsistent visitation belies

Kim’s assertion that she can provide a stable living environment for the children.

The evidence also reflected that Kim had little understanding of E.R.’s needs as an

autistic child and aspects of his care such as providing structure, boundaries, and

instruction. Kim admitted that she made a decision to no longer cooperate with the

Department after she learned they were seeking termination, and she ceased contact and

participation in Department services in the fall of 2020. The factfinder can infer from a

parent’s failure to take the initiative to utilize the available programs that the parent did

not have the ability to motivate herself in the future. In re S.P., 509 S.W.3d 552, 558 (Tex.

App.—El Paso 2016, no pet.). A trial court is permitted to consider a parent’s drug use

and failure to comply with a family plan of service in its best interest determination. In re

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S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.). This evidence

weighs heavily in favor of the best interest finding.

Stability and permanence are paramount in the upbringing of children. In re J.D.,

436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may

compare the parent’s and the Department’s plans for the child and determine whether the

plans and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.

Here, Kim asked the trial court to return the children to her care or, alternatively, to

keep the children’s placements and allow her to have visitation. Kim did not articulate

any clear plans for the children. In contrast, the Department’s plan for the children was

permanence. The trial court heard testimony from the caseworker that K.F. and B.L. are

bonded with each other and with the foster parents. At the time of placement with the

foster parents, K.F. was eleven months old and B.L. was five days old. They are doing

well in the foster home and the foster family planned to adopt them. “When children are

too young to express their desires, the factfinder may consider whether the children have

bonded with the foster family, are well-cared for by them, and have spent minimal time

with a parent.” In re S.R., 452 S.W.3d at 369.

At the time of trial, E.R. was thirteen years old, and he was settled into a structured

environment. According to the caseworker, he is getting exceptional help with his autism,

and he is learning to control his emotions. Moreover, E.R.’s behavior markedly improved

after the visits with Kim were suspended. E.R. has expressed a desire to return to Kim’s

care, but more recently, he has requested to be transitioned to a foster care placement.

The Department’s plan for E.R. is adoption.

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 The trial court heard evidence that the children were thriving and well cared for in

their respective placements. The Department’s plan would provide permanence and

stability for the children and weighs heavily in favor of the trial court’s conclusion that

termination of Kim’s parental rights is in the best interest of the children.

We conclude the evidence is legally and factually sufficient to establish a firm

conviction in the mind of the trial court that termination of Kim’s parental rights is in the

best interest of E.R., K.F., and B.L. We overrule Kim’s issue challenging the best interest

determination.

Conclusion

The judgment of the trial court terminating Kim’s parental rights is affirmed.

Judy C. Parker
Justice

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