in the Interest of K.A.A., a Child

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-21-00296-CV

IN THE INTEREST OF K.A.A., A CHILD

On Appeal from the 31st District Court
Lipscomb County, Texas
Trial Court No. 20-05-4835, Honorable Jack Graham, Presiding

April 20, 2022
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Appellant A.H. (Mother) appeals the trial court’s final order terminating her parental

rights to K.A.A.1 Appellee is the Texas Department of Family and Protective Services.

Through a single issue, Mother complains that the evidence is legally and factually

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

the best interest of K.A.A. Concluding legally and factually sufficient evidence supports

the trial court’s best interest finding, we overrule Mother’s issue and affirm the final order.

1To protect K.A.A.’s privacy, we will refer to A.H. as “Mother,” and the child by initials. See TEX.
FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). The parental rights of K.A.A.’s father, J.A., were
terminated in the same proceeding but he did not appeal the final order.
 Background

Final hearing evidence showed Mother has a history of methamphetamine use. At

trial, she acknowledged having a methamphetamine addiction. Mother further admitted

that her two older children live with their father because she is having “methamphetamine

addiction issues.” Her struggles were corroborated by Department caseworker, Hailey

Grisham, who testified that Mother has had other children removed. According to the

family service plan in evidence, Mother successfully completed a long-term rehab

program in July 2019.

K.A.A. was born in July 2019. Mother admitted using methamphetamine while

pregnant with K.A.A. Mother’s subsequent allegedly neglectful supervision resulted in

K.A.A.’s May 2020 removal, and the Department’s appointment as the child’s temporary

managing conservator. During the Department’s investigation preceding removal, K.A.A.

tested positive for methamphetamine although Mother did not. It was Mother’s belief

K.A.A. was exposed to methamphetamine while in the care of a paternal aunt.

In August 2020, K.A.A. was placed with a foster family, where she remained at the

time of final hearing. According to Grisham’s testimony, the foster family has two adopted

children and is willing to adopt K.A.A. Grisham described K.A.A. as “very close” to the

family’s other children, and noted the foster family home is a stable, safe place where

K.A.A. is not exposed to methamphetamine use.

Following K.A.A.’s removal, mother lived with her boyfriend, B.H. He tested

positive for methamphetamine in February 2021. Mother determined that remaining in a

relationship with B.H. would negatively affect her sobriety effort. Grisham testified she

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was aware Mother remained in contact with B.H. but had the “understanding” they had

not resumed their relationship. Nevertheless, near the close of evidence at the final

hearing conducted over Zoom, Mother acknowledged she was appearing for court from

B.H.’s house.

The trial court ordered Mother complete specified services as a condition for

regaining possession of K.A.A. According to Grisham, Mother initially made a “great

effort” to fulfill the service plan. Mother completed rational behavior training and a

psychosocial evaluation and maintained contact with the Department. Mother did not,

however, complete other requirements, viz.: maintaining employment, completing

counseling services, completing a substance abuse program, maintaining a drug-free

lifestyle, and completing an “OSAR [Outreach, Screening, Assessment, and Referral]

assessment.” It also appears that Mother attended as many as forty Narcotics

Anonymous meetings between June 2 and October 6, 2021.

Although Mother initially visited K.A.A. on a consistent basis, the visits “dropped

off” during the last month before final hearing. At time of trial, Grisham observed that

Mother was a no-show for three of the last four scheduled visits with the child, “with no

call, or anything, to let us know what’s happening.”

Mother tested positive for methamphetamine in February, May, and July 2021.

She admitted also using the drug multiple times in August 2021. Mother testified of having

once considered a one-year, inpatient treatment program should she regain possession

of K.A.A., but added she believed such a program was not necessary in light of her other

efforts to obtain sobriety.

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 Grisham answered in the affirmative to the trial court’s questions of whether Mother

(1) “knowingly placed the child in conditions or surroundings which endangered the child’s

physical or emotional well-being”2 and (2) “engaged in conduct, or knowingly placed the

child with persons who engaged in conduct, which endangered the physical and

emotional well-being of the child.”3

For employment, Mother said she cleans four houses once a week and sometimes

babysits. She further testified of submitting job applications for part-time work at a liquor

store and a business identified only as “Burt’s.” There was no evidence documenting

Mother’s income and expenses. Mother testified she rents a house in Spearman, Texas,

but at the time of final hearing was staying with a supportive friend to maintain her “mental

health and [] sobriety.” Mother testified that if custody of K.A.A. is restored to her, she

would seek childcare through two supportive friends, with later care provided at a facility

in Perryton, Texas.

On October 18, 2021, the trial court signed a final order terminating Mother’s

parental rights to K.A.A. after making findings under Family Code section 161.001(b)(1),

predicate grounds (D), (E), and (O), and that termination was in the child’s best interest.

TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) and (2).

2 Tracking TEX. FAM. CODE ANN. § 161.001(b)(1)(D).

3 Tracking TEX. FAM. CODE ANN. § 161.001(b)(1)(E).

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 Analysis

Mother does not challenge the evidence supporting the predicate grounds for

terminating her parental rights to K.A.A. As noted, her complaint is with the sufficiency of

evidence supporting the trial court’s best interest finding.

The Due Process Clause of the United States Constitution and section 161.001 of

the Texas Family Code require application of the heightened standard of clear and

convincing evidence in cases involving involuntary termination of parental rights. In re

E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).

The applicable standards for reviewing the evidence are discussed in our opinion in In re

A.M., No. 07-21-00052-CV, 2021 Tex. App. LEXIS 5447 (Tex. App.—Amarillo July 8,

2021, pet. denied) (mem. op.).

To assess the trial court’s best-interest determination, we may consider the factors

itemized in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976).4 While the Holley list

“is by no means exhaustive, [it] does indicate a number of considerations which either

have been or would appear to be pertinent.” Holley, 544 S.W.2d at 372.5 “The absence

of evidence about some of these considerations would not preclude a fact-finder from

4 The Holley factors are: (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
which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley, 544 S.W.2d at 371-72.

5 See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing Family Code section 263.307

[“Factors in Determining Best Interest of Child”] and Holley as providing factors for consideration “when
determining whether termination of parental rights is in the best interest of the child” and also referencing
Family Code section 153.131(b) which provides “a strong presumption that the best interest of a child is
served by keeping the child with a parent.”).

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reasonably forming a strong conviction or belief that termination is in the child’s best

interest, particularly if the evidence were undisputed that the parental relationship

endangered the safety of the child.” In re C.H., 89 S.W.3d 17, 27 (Tex. 2005). In some

circumstances, evidence of even one Holley factor may be sufficient. Jordan v. Dossey,

325 S.W.3d 700, 729 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (citing In re C.H.,

89 S.W.3d at 27).

There is a strong presumption that keeping a child with a parent is in the child’s

best interest. In re R.R., 209 S.W.3d at 116. But prompt and permanent placement of a

child in a safe environment is also presumed to be in the child’s best interest. TEX. FAM.

CODE ANN. § 263.307(a). The best interest analysis evaluates the best interest of the

child, not the parent. In re A.C.B., 198 S.W.3d 294, 298 (Tex. App.—Amarillo 2006, no

pet.); see In re M.G.D., 108 S.W.3d 508, 515 (Tex. App.—Houston [14th Dist.] 2003, pet.

denied) (noting “the Legislature made clear that courts cannot leave children in foster

homes indefinitely while existing parents try to improve themselves and their conditions.”).

Unchallenged predicate findings, here including endangering grounds (D) and (E), can

support the best interest finding. In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—Houston

[14th Dist.] 2014, pet denied). “A parent’s drug use, inability to provide a stable home,

and failure to comply with a family service plan support a finding that termination is in the

best interest of the child.” In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007,

no pet.).

At trial, Mother agreed she was addicted to methamphetamine and that “the big

issue in this case [was her] methamphetamine use.” Undisputed evidence demonstrates

this addiction predated K.A.A.’s birth and has stripped her of a relationship with two other

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children. Through Mother’s prenatal consumption, it endangered K.A.A. before birth. And

through Mother’s placement of K.A.A. with a user-relative, it precipitated K.A.A.’s removal.

Methamphetamine’s allure tarnished Mother’s promising start on her family service plan

and sent her seeking stress relief through intoxication. Inferentially, it factored into a

relationship with a paramour-user, evicted her from her own home, and restricted her

wage-earning capacity. While Mother completed some services, sought additional

counseling sessions, attended Narcotics Anonymous meetings, left home for the aid-in-

crisis of a friend, may have separated from her paramour for sobriety’s sake, and at least

had a source of income, she could not overcome the vagaries of addiction. Mother’s

susceptibility to relapse was illustrated in February, when B.H. also tested positive, and

in August after receiving stressful and unpleasant news.

On numerous occasions, Mother was presented an opportunity to choose between

family and addiction. Just as she did with her other children, Mother chose

methamphetamine. She even did so after K.A.A.’s removal and with knowledge that

termination of her parental rights might be a consequence. As we have held in other

cases involving parental drug addictions, past conduct is often prologue. In re A.M., Nos.

07-18-00047-CV, 07-18-00048-CV, 2018 Tex. App. LEXIS 3688, at *7 (Tex. App.—

Amarillo May 23, 2018, pet. denied) (per curiam, mem. op.) (cleaned up).

K.A.A. has spent most of her life in the care of foster parents who are willing to

pursue adoption. By contrast, Mother’s time with child has been sporadic. The foster

family’s home was described as safe and stable and an environment where K.A.A. is not

exposed to methamphetamine. K.A.A is close to her foster parents’ other children. Within

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this environment, K.A.A. has been assessed as developmentally on target and “above

average in many areas[.]”

K.A.A. requires a stable, supportive home free of illegal drugs. Contrary to the

conclusory statement of the family service plan that Mother’s parenting skills were

appropriate, the trial court was within its power to disagree that Mother could effectively

nurture and safely care for the child, particularly when the evidence suggests Mother

cannot ensure a secure, drug-free home.

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

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

best interest of K.A.A. Mother’s sole issue is overruled.

Conclusion

Having found the evidence sufficiently supports the trial court’s best interest

finding, we affirm its final order.

Lawrence M. Doss
Justice

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