## In the Court of Appeal s Second Appellate Distr ict of Texas at Fort W o rth

___________________________ No. 02

- 22

- 00463

- CV

___________________________

On Appeal from the 325th District Court Tarrant County, Texas Trial Court No. 325

- 702420

- 21

Before Womack , Wallach, and Walker, JJ. Memorandum Opinion by Justice Wallach 

### I N THE 

### I NTEREST OF 

### P.L., A 

### C HILD2 MEMOR ANDUM OPINION Appellant R. B

. (Mother) challenges the trial court ’ s order te rminati ng her parental rights to her son , P.L. (Paul). 1 In one issue, she argues that the evidence i s insufficient to establish that termination of her parental rights i s in P aul ’ s best interest.
Be cause we hold tha t the evidence is suffi cient, we affirm

. I. Backg round The Department of Family and Pr otective Services fi led a petition for conservatorship and for termina tion regarding Paul. The Department ’ s peti tion sought termination of M other ’ s parental right s based o n the predicat e statutory grounds in Texas Family Code Section 161.001(b)(1)(D), (E), (K), (L), (M), (N), (O), (P), (Q), and (R)

. See Tex. Fam. Code Ann. § 161.001(b). The D epartmen t also sought
termination of the parenta l rights o f Paul ’ s father, G.L. 2 The case was tried to the
court on Nove mber 11, 202 2

. At trial , the Department put on testimony from Department inve stigator Ruth White , Father, and caseworker Shontavia Hill

. Mother
al so testified.
P aul w as born on Jun e 25 , 2021 , and was taken in to the Depar tment ’ s care on June 29, 2021, and Whi t e testified about the basis for the Department ’ s involvement

.

1 We use pseudonyms for the child and his parents to protect the child ’ s priva cy. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b).

2 The trial court terminat ed Father ’s rights , but Father did not appea l that termination

.3 • The Department received a repo rt that at Paul ’ s b irth, Mot her had test ed positiv e for amphetamine and marijuana and tha t Paul ’ s umbilical cord b lood had tested positive for methamphetamine and amphetamine

.

• Paul ’ s meconium also tested positive fo r mar ijuana, amphetamine , and methamphetamine

.

• When White m et with Mother and Father at the hospital to discuss the test resu lts w ith them , Mother said that she did not know why she would t est positive

. She admitted t o using an edible form of marijuana early in h e r pr egnancy but denied any other drug use.

• Father also denied drug use and asked if he could ta ke Paul home if he passed a drug test , so White administered an oral sw a b drug screen

. T hat screen was positive for methamphetamine and amphetamine

.

• Bot h parents st ated that they were willing to do furt her testing, so White arranged it . Mothe r completed a hair follicle test in July 2 021 that was positive for methamphetamine and marijuana.

• White further testified that the par ents ’ parental rights to ano ther child had previously been termina ted in Oklahoma. In that case, Mother ’ s termination was based on relinquishment. Additio nally, M other ’ s right to two other children had previously been terminated. According to Paul ’ s hosp ital birth records admitted at tr ial, me conium begins
to form between the twelfth and sixteenth week of gestation , and m econium drug testing can detect maternal dru g use during the last four to five months of pregnancy.
The records also stat ed that the umb ilical cord tissue test ing for methamphetamine “ is intended to reflect mater n al drug use during approximately the last trimester of a full

term pregnancy. ” S i milarl y, the test of the umbilical cord tissu e for cannabis is designed t o detect exposu re occurring “ during ap proximate ly the last trimester of a
full [

- ] term pregnancy , to a common cannabis ( marijuana ) metabolite. ” Thus, the4 positive test results of the umbilic al cord tissue and meconium in dicated that M other
had used drugs during t he latter pa rt of her p regnancy . 3
Shonta via H ill is a caseworker with Our Com munity O u r Kids , which provided conservatorship ser vices in this case. Hill testified about the parents ’ s ervice plan s and

eac h parent ’ s performance of th eir plan

.

• Mothe r completed many of her services , including drug treatment

. She completed that drug treat ment in July 2022.

• However, Mother ’ s service plan required her to submi t to random drug tests as reque st ed by the Depart ment , and althoug h the pl an stated that her fail ure to test could indicate a positive result , Mother failed to comply on multiple occas ions

. As White had also testified , Mother completed a hair foll icle test in July 2021, and tha t test was positive for meth amphetamine, am phetamine, and marijuan a. Mo ther c omplied with Hill ’ s urine drug testing requests in July, August, September , and October of 2021 , and each t ime her test was positive for marijuana

. She refused to provide hair fol licle drug testing in Octobe r 2021 and fail ed to c omply with a uri ne test or a hair follicle test each month f rom November 2021 to June 2022 , even though Hill ex plained to her “ what the ramifications of that are. ”

• At an April 2022 permanency rev iew hearing, Mo ther wa s ordered by the trial court to participate in a nail bed or hair strand t est before trial , but Mother did not comply . She was arrested in June 2022 , release d in J uly, and arrested against in August, and sh e could not participate in d rug testing whi le inca rcerated

.

• Mother ’ s June 20 22 arrest was for two off enses: fraud ulent use and possession of identifyin g information and possession of methamphetamine

. F or both offenses, she w as p laced on five years ’ deferred adjudication on October 17 , 2022.

3 The medical records also stated that M other had not had any pre natal care while pregn ant wi th Paul

.5 • Mother ’ s Octob er 2022 r el ease was shortly before tria l , and she never completed the ordered nail bed or ha ir strand testing

. S he did, h owever, complete a urine test in July 20 22, and that test was positive for marijuana

.

• Hill further testified that P aul had suffered fro m “ extreme withdrawals, ” which “ just slowed down in March 2022. ”

• Hill expressed concer ns that Mother ’ s drug use im paired her ability to be a safe p arent. Hill explained that Mother was not stable and had not been stable for the entire case and that she was still in a relationship with Father, who also used drugs and had refused to do any se rvices. 4 Asked wha t she mean t by “ not stable, ” Hill elaborate d that Mother had been living with

“ paternal grandfather, ” 5 but that she and Father were put out of that home

. They then moved in with “ paternal un cle

. ” The Department had concerns abou t drug usage and prostitutio n in that home , but Mother and Fa ther continued to live there nevertheless.

• As of O ctober 24 , 2022, Mother was living at Sa f e Haven . Asked if Paul would be allo wed to live there with Mother and if it would be an acce ptable place of residen ce fo r Paul , Hill stated, “ As far as I know, yes. ”

• Hill stated that Mother had been fired from a job during the case but continued to tell Hill that she was working for that employer.

• Hill stated that Paul ’ s f o ster paren ts were meeti ng hi s developmental, med ical, educational, and financial needs. The foster parents are interested in adopt ing Paul. Paul has no special needs.

• Hill testified to her opinion that i t is in Paul ’ s best interest for the D ep ar tment to be named his p erman ent managing conserv ator , “ pen d ing a hopeful adoption by his current foster parents. ”

• On cross

- examination, Hill stated that duri ng Mot her ’ s visits with P aul, Mother treated P aul appr opriately , and Hill had no con cerns about Paul ’ s safe ty du ring the v isits.

4 Hill testified ab out th e multiple services that Father had failed to com plete.

5 It is unclear whether Hill meant Father ’ s paternal gra ndfather or Pauls ’ paternal grandfather (i. e., Father ’ s fathe r).6 Father testified about his other child ren , his criminal history, and his failure to perform his services.

• F ather has six other children aside from Paul. H is oldest child lives with her m other in O klahoma

. His secon d child al so lives w ith her mother in Oklahoma

. H is third child lives with th at child ’ s mother in Texas

. F ather could not remember the name of his fourth child

. His fift h child lives w ith that child ’ s mother in Texas

. His sixth child is h is other chil d wit h M other

.

• F ather h as been arrested four or five times in Oklahoma

. He has previously been convicted of pos session of methamphetamine , of burglary , and of obtaining a controlled dangerous substance by a forged prescri p tion

. A t the time of t ria l, he had a pe nding ch arg e for intentionally or knowingly threatening imminent bodily injury to M other , based on events that occurred after Mother ’ s Oct ober 2 0 2 2 release from jail

.

• F ather denied that there was a s erv i ce plan in place for hi m , a nd he
co ntended that he had never been told that any services were mandatory

. Mother testified about the services that she completed , her employment and living situati on , and her drug use and testing

.

• S h e stated that she had b een working as a h ousekee per for a hot el, but she was let go because they would not let her return to work without a doctor ’ s note after her C

- section. The same day, she applied at another hotel and got a job there. She wo r ked there for approxima tely seven months. She left that job to work for All Star Healthcare Services as the caretaker for Father ’ s uncle. She did that work until her June 2022 arrest
.

• In J uly 2022, after her release from ja i l, she began her own cl eani ng business. Since October 24, 2022, she ha s been stay ing at Sa f e Have n, whi ch has adequate facilities for her to have Paul with her. She testified that she would be able to provide Paul with a safe place to l ive if he was returned to h er.

• Father assaulted Mother on October 22, 2022, a few days after her release from jail, and he was currently incarcerated

.7 • She explained that she had not done the ordered h air st rand drug test because h er hair was too short, and “ if they would ’ ve don e it [she] would ’ ve had like a bald spot on [her] hair , ” “ so [she] ha [d] been growing it out. ”

• She sa id that Father had moved out of his uncle ’ s house in February 2022 and d id not return unt il sh e went to jail in June, so f rom February to June , she and Father were not l iving together.

• Mother began using methamph etamine in 201 3.

• She ha d not been to any NA meetings s inc e her rel ease from incarceration on Oc tober 18 , 2022

. 6 She claimed t hat she had not u sed meth amphetamine since before she was pregnan t , but she admitted using marijuana in August 2022

. She said that she had missed her drug tests because the s o cial worker

“ kept changing the locations of t he places, and [she] di dn ’ t understand that ” : “ w here I was going at first was perfect for me becaus e it was right where I could go from the house to drug test and then go to work.

. . . [ O ] ne [ location ] was in W eatherford, the other one was . . . in Arlington , ” which wa s “ j ust out of the way

. ”

• Mother does not have access to her bank account because while she was in jail, she had “signed over [her] property to [Father] so he could pay to get [her] bond out,” and Father had locked her out of her account.

• M ot her has five children aside from Paul , none of whom are still in her care

. H er oldes t w as adopted in a priva te a doption

. H er second c hild lives with th at child ’ s father

. Her third child and fourth child were ad o pted by foster parents in Oklahoma

. Her fifth child is her other child with Father

. The trial court f ound the predi c ate termination grounds in Section 161.001(b)(1) (D), (E), (O), and ( R) , and it fou nd that termin ation was in Paul ’ s be st interest. On appeal ,

6 Mother ’s service plan d id not require he r to participate in NA, b ut she was required to build a support system , and NA was suggested in her service plan as one possible way for her to do tha t.8 Mother ’ s sole issue asks whether the evidence is legally and factually sufficient to support the tria l court ’ s best

- inter e st find ing under Section 161 .001(b)(2). 7
II. Standard and Scope of Review
For a trial court to terminate a parent

– child relationship , the party seeking
termination must prove by clear and convinc ing evidence a predicate statutory
termi n ation ground and that t ermi nation is in the chil d’s best interest. Tex. Fam. Code Ann. § 161.001(b) ; see also id. § 161.003(a) ; In re Z.N. , 602 S.W.3d 5 41, 545 (Tex. 2020). Evidence is clear and convincing if it “will produce in the mind of the trier of f a ct a firm belief or con vict ion as to the truth o f the allegations sought to be established.”
Tex. F am. Co de Ann. § 101.007; Z.N. , 602 S.W.3d at 545.
Bot h lega l and factual sufficiency require us to determine whe ther a reasonable
factfinder could form a fi r m belief or conviction that the best

- int erest fi nding is true

. In reviewing a best

- interest finding , we c onsider the entire record. In re E. C .R. , 402 S. W.3d 239, 2 50 (Tex. 2013)

. “ The distinction between legal and fac tual sufficiency lies in the extent to which disputed evidence con trary to a finding ma y be
considered. ” In re A.C. , 560 S.W.3d 624, 630 ( Tex. 2 018)

. In determining the legal sufficiency of t he evidence supporting the finding, “ the reviewing court cannot ignore undisputed evidence contrary to t he finding, but must ot herw ise assume the f actfi nder

7 Mother also challenges the suf ficiency to su ppo r t a best

- interest find ing un der Section 161.0 03(a)(5), but the trial c ourt did not make a finding based on that subsection and did not terminate Mother ’s parental rights under Section 161.003. See Tex. Fa m. Code Ann. § 161.003(a).9 resolved disputed facts in favor of the findin g . ” Id

. at 63 0

– 3 1

. That is, we consider the
evidence that supports the best

- interest finding , and we consider undisputed evidence
even if it contradicts the fi n ding , but we ignore evi denc e that a fact finder c ould reasonably disbelieve. In re E.N.C. , 384 S.W.3 d 796, 807 (Tex. 2012) (quoting In re J.F.C. , 96 S .W.3d 256, 26 8 (Tex. 2002) ). If, under this standard, a reasonable factfinder
could form a firm belief or c onviction that the find ing was true , then the ev idence is legally sufficient. A.C. , 560 S.W.3d at 6 31.
I n reviewing factual sufficiency, we weigh “ di sputed evidence contrary to the finding against all the evidence favoring the finding , ” and we “ consider w hether disputed evidenc e is such that a reasonab le factfinder could not have resolved it in
favor o f the finding

. ” Id. at 631 ; J.F.C. , 96 S.W.3d at 26 6 ; see also In re A.B. , 437 S.W.3d 498, 500 (Tex. 2014). “If, in light of the entire record, the disputed evidence that a

reasona ble factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably hav e fo rmed a firm belief or conviction, then the evidence is factually insufficient.” A.B. , 437 S.W.3d at 50 3 (quoting J.F.C. , 96 S.W.3d at 266)

. III. Di scussion
A. Best

- Int ere st Factors Although we ge nerally presume that keeping a child w ith a parent is in the
child ’ s best interest, In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006), the best

- interest analysis is child

- centered, focusing on the child ’ s w ell

- bein g, safety, and devel opm ent
.10 A.C. , 560 S.W.3d at 631

. Evidence prob ative of a child ’ s best in terest may be the same evidence that is probative of a S ubsection (b) (1) ground. E. C .R. , 402 S.W.3d at 2 49 ; In

re C.H. , 89 S.W.3d 17, 28 (Tex. 2002) ; see Te x. F am. Code Ann. § 161.001( b)( 1), (2)

. We also consider the evidence in light of n onexclusive factors that the factf in der may apply in determining the child ’ s best interest , as set out in Holley v. Adams , 544 S.W.2d 367, 371

– 72 (Tex. 1976)

. 8 These factors are not exhaustive, and som e l isted factors may not app ly to some cases. C.H

. , 89 S.W.3d at 27. Furthermore, undispu te d evidence of just one factor may be sufficient to support a finding that termination is
in the child ’ s best interest. Id

. On the other h and, the presence of scant e vid ence relevant to each fac tor will not supp ort such a finding. Id. B. Application
As M o ther notes in her brief, she put on evidence that she behaved appropriately with Paul during her visits, she completed her cour t

- ordered s erv ices, she put on undisput ed testimony that she is sel f

- employed, and she has stable housing. This evid ence relates to Mother ’s parenting ability and her ability to provide

8 Those factors are (1) t he child ’s d esires, ( 2 ) the child ’s cu rrent a nd future emotional and p hysical needs, (3) the current and fut ure em otional and physical danger to the child , (4) the parental a bilities of the i ndividuals who are seeking custody, (5) the programs available to assist th o se individ u als to promote t he chil d’s best interest , (6) th ose individual ’s or the Department ’s plans for the child, (7) the home or proposed p lacement ’s stability, (8) the parent’s acts or omis sions indicat ing t hat the existing parent

– child rel ationship is not a pr o per on e , and (8) any ex cuse for the parent’s act s or omissions

. Holley , 544 S.W.2d at 371

– 72 ; see E.C.R. , 402 S.W.3d at 249 ; E.N.C. , 384 S.W.3d at 80 7

.11 a stable home for P aul, and it is some evidence w eighing against the best

- int erest finding.
As fo r e vidence about Paul ’s curr ent placement and the Department ’s or foster parents ’ future plans for Pau l , t he De partment put on only conc lusory evidence

. However, although “[e] vidence about placement plans and adoption are, of co urse,

re levant to bes t inter est , ” “ the lack of evidence about definitive plans for permanent placement and adoption cannot be the dispositive factor

. ” C.H. , 89 S.W.3d at 28

. Paul is an infant and thus cannot be asked about his desires regarding his placeme nt , but
the trial court coul d c onsider the fact that he has spent minimal time with Mother. See
In re K.L. , No. 14

- 22

- 00584

- CV, 20 22 WL 17844266, at *12 (Tex. App.

— Houston [14th Dist.] Dec. 22, 2022, no pet. ) (mem

. op.) (stating that “[ w] hen children are t oo
yo ung to express their de sires, the fact finder may consider that the children are bonded with their current placement, are wel l cared for by them, and have spent minimal time with the paren t ”).
Mother ’ s brief does not , however, address her drug use. Sh e put on some

e xplanation for her failure to com plete man y of her requested drug tests during the

case, including the cour t- ordere d testing , but the trial court was not required to find
credible her explanation

. She did not testify that getting to the assi gned locations would have be en i m possible, and she di d not testify about any attempt on her part to request a different testing lo cation or to explain to her caseworker about any
difficu lties she had in getting t o the assigned testing locations. She testif ied t hat she12 did not submit to t he court

- orde red hair strand test because she did not want a bald spot in her hair , but even if th at were a suffi cient explanation , she did not explain why she could not have submitted to the a lternative nail bed test. As Hi ll testi fied , u nder
the serv ice plan, Mother ’ s failure t o drug test c ould be considered a positive result.
Mother claimed that she had not used methamphetamine since before her pregnancy, but she provided no e xplanation for why the baby ’s cord bl ood and
meconium tested posi ti ve for that substance , wh y Paul suffered from withdrawal , or why she was arrested for possession of methamphet am ine

. T he trial court di d n ot have to find her denial of drug use credible. See In re J.F.

- G. , 627 S.W.3d 304,
312 (Tex. 2 021)

. Further, she ad mi tted to using marijuana a few months before trial

— after she had already completed her drug treatment program —w hen she knew her parental rights were at stake and w hile she was on d eferred adjudication for a drug possession offe nse . Mother ’ s drug use during pr egnancy affected Paul ’ s health, result ing in his suffering from serious effects t ha t lasted from his birth i n late June 2021 until March
2022

. Mother ’ s drug use during pregnancy and her continued dru g use d ur ing the case
is con du ct that has already endan ger ed Paul and threat ens Moth er ’ s ability to care for
him , and it can support a finding that the paren t– child relationship is improper

. In re Z.F. , No. 07

- 21

- 00138

- CV, 2021 WL 5770174, at *6 (Tex. App.

— Amaril lo D ec. 6, 2021, no p et .) (mem. op.). (noting th at “ [s] tability and permanence are paramount in the up bringing of children ” and that “[a] parent ’ s dru g use de monstrates an inability13 to provide a stable environment for the c hildren and an inability t o provi de for the
children ’s e motional and physical nee ds ”) ; In re T.R. , No. 02

- 20

- 00359

- CV,
2021 WL 1421423, at *6 (Tex. App.

— Fort Worth Apr. 15, 2021, no p et.) (me m. op.) (considerin g mother ’ s drug use during pregnancy in best

- interest analysis) ; In re
M .R.J.M. , 280 S.W.3d 494, 502 ( Tex. App.

— Fort Worth 2009 , no pet. ) (op. on reh ’ g) (holding that d rug abuse during pregnancy constitutes conduct that endangers a
child ’s physical and emotional well

- being ). Further, b ased on the evidence presented
at trial ab out Mother ’ s history o f drug use , the trial c ourt could find that her drug use would continue into the future. See K.L. , 2022 WL 17844266, at *13 . “ The trial court

c ould have reasonably based its best

- interest finding on Mother ’ s pre

- removal drug abuse and her decision to conti nue th e pattern ” during her pregn ancy w ith Paul and
even after the remov al and “ could have reasonably determined that the continuing drug abuse ov ershadowed any evidence in Mother ’ s favor. ” See In re D.A. , No. 02

- 22

- 00260

- CV, 2022 WL 178 41133, at *1 3 (Tex. Ap p.

— For t Worth Dec. 22, 2022, no pet. h .) (mem. o p.)

. Fu rther, Mother ’ s commission of criminal offenses during the case

— knowing her parental rights were at stake

— resulted in her June 2022 arrest , and af ter she was
released in July, she was arrested again in Augus t
. Addit ionally , drug use, including the
use of marijuana , is a violation of her deferred adjudication pro bation conditions. Violating probation conditions is an act that could result in rev ocation of her deferred adjudicat ion , and based on the trial evidence, the tri al court could have serio us14 concerns about Mother ’ s ability to comply with her probation conditions and thus with her ability to p rov ide a stable home for Paul now and in the future. These acts weigh against Mot her ’ s ability to provi de a s afe and stable ho me for Paul

. See M.R. v. Tex. Dep’t of Fam. & Protective Servs

. , No. 03

- 17

- 00715

- CV, 2018 WL 1023899, at
*4 (Tex. App.

— Austin Feb. 23, 2018, no pet. ) (mem. op.) (considering in best

- interest analysis fact that f ather co mmitted an off ense a t a time when his par ental rights were
in jeopardy) ; see also In re S.H. , No. 01

- 22

- 00255

- C V, 2022 WL 17254956, at *16 (Tex. App.

— Houston [1st Dist .] Nov. 29, 2022, pet. denied) ( mem. op.) (stating that a parent ’ s criminal histo ry is r elevant in anal yzing the present and f uture emotional and physi cal danger to a child and the parent ’s ability to provide a safe and stable home
for the child ). Appl ying the appropriate standards of review, we conclu de that legally and factually suf ficient evidence suppo rts th e trial court ’ s b est

- inter est finding. We
overrule Mother ’ s issu e. IV. Conclusion Having ov erruled Mother ’ s sole issue on appeal , we affirm

.

/ s/ Mike Wallach Mike Wallac h Justice Delivered: March 30, 2023