### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00217
- CV

N. P. and J. P., Appellant s

v. Texas Department of Family and Protective Services, Appellee

FROM THE 207TH DISTR ICT COURT OF COMAL C OUNTY NO. C2017
- 2053B THE HONORABLE CHARLE S A . STEPHENS II, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Following a bench trial, J.P. ( the M other) and N.P. ( the F ather) 1 appeal from the trial court’s final order terminating their parental rights to their child A.P. , born in February 2010 , and ter minating the Mother ’s parental rights to her child K.J. , born in May 2006. 2
See Tex. Fam. Code § 161.001 (providing for involuntary termination of parent

- child relationship )

. B ecause the Father did not file an appellant brief, we dismiss his app e al for want of prosecution

. 3 As to the Mot her ’s appeal, she raises a single issue challeng ing the legal and

1 We refer to the parties by initials to protect their privacy

. Se e T e x . Fam. C ode § 109.002 (d); Tex . R. App. P. 9 .8.

2 K .J.’ s father D.J. also had his parental r ights te rminated bu t did not appeal.

3 The Father filed a notice of appeal on Mar ch 29, 2019. On April 4, the Father ’s court appointed trial attorney sub mit t e d notice to this Cour t of the t rial court’s M arch 29 order finding that the Father is not ind igent an d permittin g the Father ’s counsel to withdraw from2

factual sufficiency of the trial court’s finding that termination is in the best interest of the
child ren , see id. § 161.001(b)(2) (requiring findi ng by “clear and convincing evidence” that “terminati on is in the best interest of the child”), but she does not dispute the finding that she committed s tatutory ground s for termination , s ee id. § 161.001(b) (1) (D), (E), (O), (P). For the
f ollowing reasons , w e overrule the Mother ’s sole issue on appeal and a ffirm the trial court’s order.

BA CKGROUND In this case, a bench trial began on November 30, 2018, and continued on January 24 and February 21, 2019. In addition to the Fat her an d the Mother , the follo wi n g witnesses testified at trial: Kathleen O ’Reilly, A.P.’s school counselor; Ashley Bast ian, the Department’s investigator ; Jennifer Hall, the Department’s caseworker; Leslie Scibienski, A.P. and K.J.’s appointed guardian ad litem ; the Fa ther ’s half

- bro th e r’s stepfather ; and the Father ’s

representation “upon the timely and proper f iling of a Notice of Appeal.” The Father ’s brief was d ue t o be file d on May 29. On June 1 1, this Court ordered the Father to file his brief no later th an June 21 , warning that his a ppeal “ may be dismissed for want of prosecution. ” See N. P. v. Texas Dep ’ t of Family & Protecti ve Servs

. , No. 03

- 19

- 00217

- CV, 2019 WL 24401 09, at *1 (T e x. App.

— Aust in June 11, 2 0 19, ord er )

. To date, the Father has not filed a brief. A ccordingly, we dism iss his appeal for want of prosecution. See Tex. R. App. P. 42.3(b), (c) (providing for involuntary d ismissal for want of prosecuti on or fa ilu r e to com p ly with rule s of appellat e proced ure, court order, or notice from clerk requiring ac tion within specifi ed time) ; Tex. Fam. Code § 263.405(a)

– (b) (providing that “appeal of a final order rendered under this subchapter is governed by the procedu res for acce l er ated appea ls in civil c a ses und er the Texas Rules of Appellate Procedure” and re qu iring order to cont ain notice that failure to follow Texas Rules of Appellate Procedure for accelerated appeals may re sult in dismissal of appeal); S.P

. v. Tex as D ept. of F

am ily & Prot ective Serv s . , No. 03

- 13

- 00504

- CV, 2013 WL 6178566, at *1 (Tex. App

. — A ustin Nov. 22, 2 013, no pet.) (mem. op.) (dismissing appeal from order terminating parental rights for want of prosecu tion when appellant failed to file brief fo l l owing no tic e of deadlin e and “has no t assert ed a claim of indigence on appeal”); cf. In re B. L.D. , 113 S.W.3d 340, 35 0

– 5 1 (Tex. 2003) (holding fundamental error doctrine from “quasi

- criminal” cases providing tha t court may review error that was n either r a i sed in t ria l court nor assigned on a p peal do es not apply to parental rights termination ca ses ).3

sister (the Aunt) . The following recitation of facts is taken from the testimony and exhibits presented at trial.

On November 9, 2017, the Department received a referral fr om O’Reilly after
A.P. ca me to school with a bl a ck eye and made an ou tcry of abuse

. O ’ Reilly testified that A.P. told her that her parents started fighting ; that her Father then “pulled her out of the car, and she hit the side of her face on the door” ; and “ that she got choked fr om the seat belt, wh ic h left a mark on her neck .” O’Reilly explained that she made the referral because, in addition to the black eye and outcry of abuse, A.P. told her that her Mother “drives drunk a lot, and that’s why
her dad woul d fight with her, beca use he didn’t want h er in the car with her moth er ” and that “her pa rents physically fight often.” O’Reilly also had concerns regarding A.P.’s school attendance and the Father ’s slur red speech when he would pick up A.P

. from school.

The day after receivi ng the referral , the D e partment sent its investigator Bastian t o speak with A.P. and school personnel. A.P. told Bastian that she had “witnessed her parents choking each other, slapping each other, pushing each other on the ground, spitting on each other” and “that her paren ts drink an exten sive amount of alcohol and would drive with [ A.P. and K.J.] in the vehicles under the influence.” Basti a n next made contact with the Father at the RV park where he live d

— although the Father was “in the midst of moving the RV to a new loc a ti o n”

— and administered a mail

- off dru g test, which later came back positive for cocaine, methamphetamine, and hydrocodone. Basti a n also attempted to contact the Mother but initially
str uggled making contact because the Mother was arres ted for theft by ch e ck in November . On December 4, Bastian was able to make face

- to

- face contact with the Mother

. The Mother admitted that there was domestic violence in her relationship with the Father and that the F ather had even “attempt[ed] to kill [ the Mother ] b y choki ng her , ” but explained that “she was not the4

abuser, that it was [ the Father ]

. ” The Mother denied any drug use ; but when Bastian administered an instant drug test, she tested positive for methamphet amine. T he Department exigently removed the child ren tha t d ay and pl aced them in a private foster home

. The next day, the Department filed its original p etition for protection of the children, for conservatorship, and for termination in the suit affectin g the parent

- child relationship , and Bastian filed an “Af fi d avit in Su pport of Exigent Removal.”

In January 2018, Hall took over as caseworker , and in Feb ruary 2018, Scibienski was appointed as the guardian ad litem for the children. Hall developed the M other ’s service plan , which included r equirements for p sy c hological e valuation and drug testing and assessment

. The Mother never completed the psychological ev al uation and in her drug and alcohol assessment she was d iagnosed with “amphetamine use disorder moderate a nd alcohol use moderate

. ” The Mother did no t c omplete the intensive outp atient or any substance abuse program as recommended. The Mother often missed her random drug tests, but in the tests she did complete, she tested positive for cocaine, ma rijuana, metham phetamine, benzodiazepine, hydroco done, an d hydromorphone. Her servi ce plan also required her to refrain from criminal activity, but her probation was revoked twice in the cour se of this case and ultimately the Mother

was sentence d to “a ni ne - month program at [ a Sub stance Abuse Felony Pun ishmen t F acility (SA F P)] to be foll owed by 60 to 90 days in a halfway house, and th en she would be on hi gh

- risk probation , ” which if “she failed to abide .

. . she would be sent to prison for ten years.” The Mother ent ered the SA F P facility on September 1 8 , a nd a t the time of trial, Guadal upe County

wa s seeking to revoke her probation for failing t o participate in the SAFP program . The Mother also was provided visitation with her chil dren every other week until she was incarcerated in5

May 2018, b ut she wo uld fr eq u ently fail to show up or arrive late

— she co mpletely missed four, was late for two, and showed up on time for only two visits

.

In June 2018 , the children moved f rom their foster care home to Louisiana to live with the Aunt

. The Aunt is an elementary s ch o ol principal with two gir ls of her own, who were four and seven in 2018. The Aunt described the change as “[w]onderful” and said that her family ha s gone “from a family of four to a family of six overnight.” When this change

occu rred, the Aunt sold he r h ome and now they “are livi ng in a home with a fourth bedroom to accommodate the girls.” A.P. and K.J. are involved in their school programs, extracurricular activities, a nd city sport leagues. The Aunt testified that she and the Moth er “have never bee n

c lose”

— she does “not agree wi th the decisions that [the Mother has] made over many years of knowin g her ” and “often questioned her choices as a mother , ” including that she “fre quently visited the champagne fountain the night of [ the Aunt ’ s] wedding while s h e was visibly pregnant with [A .P. ].” Nor is the Aunt close with the Father , “mainly because [she does ] not agree nor support any of his lifestyle choices,” including his “substance abuse”

— a “severe drug problem”

— and driving while in toxicated

.

At the cl o se of trial, the judge stated tha t “ this Court is not going to wait for y’all [ the Mother and Father ] to get your act together. You’ve had that opportunity. You had that opportunity before the children were taken

-- or re moved, e xcuse me. And you hav e h ad the opportunity since to make the decision to put your children first, and for whatever reasons you have chosen not to do that or elected not to do that or failed to do that.” On March 14, 2 019, the judge signed a final order f inding by clear and co nv i ncing evidence that it was in the ch ildren’s
best interest that the Mother ’s parental rights be terminat ed and that statutory grounds supported the termination. The Mother timely appealed the order.6 STAN DARD OF REVIEW AN D APPLIC ABLE LAW “Texas Famil y C ode section 161.001(b) allows for i nvoluntary termination of parental rights if clear and convincing evidence supports that a parent engaged in one or more of the twenty

- one enumerated grounds for terminat ion and that term ination is in the best interest o f the child.” In re N.G. , No. 18

- 0508, ___ S.W.3 d ___, 2019 WL 2147263, at *1 (Tex. May 17, 2019) (per curiam)

. “Proceedings to terminate the parent

- child relationship implicate rights of constitutional magnitude that qualify for h eigh tened ju dicial pro te c tion.” In re A.C. , 560 S.W.3d 62 4, 626 (Tex. 2018). “Becaus e termination of parental rights ‘is complete, final, irrevocable and divests for all time’ the natural and legal rights between parent and child, a court cannot involun t aril y sev er that relat io n ship absent evidence sufficient t o ‘produce in the mind of
th e trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.’” Id . at 630 ( quoting Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985 ) ; Tex. Fam. Code § 1 0 1.007 ). “This heightened proof standard carries the weight a nd gravity due process requires to protect the fundamental rights at stake.” Id

. And “[ t] he distinction between legal and factual sufficiency lies i n the exte nt to which d is puted evidence co nt r ary to a findi ng may be considered.” Id

. 4

4 The Texas Supreme Court explained this distinction as follow s: In conducting a legal

- sufficiency review, the reviewing court cannot ignore undisput ed evide n c e contra ry to the findi ng, but must o therwis e assume the factfinder resolved disputed facts i n favor of the finding. Evidence is legally suffi cient if, viewing all the evidence in the light most favorable to the fact

finding and considering undi sputed c o n trary ev ide nc e, a reaso nable factfin d er coul d form a firm belief or conviction that the findi ng was true.
Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding against all the evidence favoring the findin g. In a7 DISCUSSION Because the Mo ther does not challenge the finding that statutory grounds support termination, we turn to the “second termination prong

— best interest s

— [w hich] is ch il d

- centered and focuses on the ch il d ’s well

- bei ng, safety, and development.” Id. A best

- interest determination is guided by several non

- exclusive Holley factors, including:
(1) the chi ld ’ s emotional and physical needs; (2) the emotional and physi cal da ng er to the c hild now and in the fu tu r e; (3) the parental abilities of the individuals seeking custody; (4) the plans for the child by those individuals and the stability of the home; (5) the plans for the child by the agency seeking custody and the stabil it y of the p r oposed placement; ( 6) th e parent ’ s acts or omissions that may indicate the existing parent

- child relationship is improper; and (7) any excuse for the parent ’ s acts or omission s.

Id

. (citing Holley v. Adams , 544 S.W.2d 367, 371

– 72 (Tex . 1976 )) ; see Tex. Fam. Code § 2 6 3 .307 (b) ( li s ting add itional best

- interest factors that are probative in “determining whether
the child ’ s parents are willing and able to provide the child with a safe environment”). “The absence of evidence about som e of these co nsideratio n s would not preclud e a f ac t finder f

rom reasonably forming a strong conviction or belief that termination is in the child ’ s best interest,”
In re C.H. , 89 S.W.3d 17, 2 7 (Tex. 2 002), but the best

- interest finding “must be supported by

f actual

- s uff

ic iency revi ew, the appel l ate cou rt must consider whether disputed evidence is suc h t hat a reasonable factfinder could not have resolved it in favor of the finding. Evidence is factually insufficient if, in light of the entire record, the dis p u ted evid enc e a reasonab le factfinder could n ot have credited in favor of a finding is so sign ificant that the factfinder could not have formed a firm belief or conviction that the finding was true.

In re A.C. , 560 S.W.3d 624, 6 30

– 31 (Tex. 2018) ( footno te s an d cita tio ns omitted).8

clea r and co nvincing e v idence in the recor d,” I n r e E.N.C. , 384 S.W.3d 796, 803 (Tex. 2012) (citing Tex. Fam. Code § 161.001(2))

.

“[T]here is a strong presumption that the best interest of a child is served by keeping the child with a parent ,” In re R.R

. , 20 9 S. W. 3d 112, 116 ( Tex. 2006) (citing Tex. Fa m . Code § 153.131(b)) , and the Department carries the burden of proof to overcome that presumption with “clear and convincing e vidence,” In re G.M. , 596 S.W.2d 846, 847 (Tex. 1980) ; In re U.P. , 105 S.W.3d 2 22, 2 30 (Te x. App.

— Ho ust on [14th Dist.] 200 3, pe t. denied). This “heightened” burden of proof at trial results in a “correspondingly searching standard of appellate review.” A.C. , 560 S.W.3d at 6 30. “As a matter of logic, a finding that must be based

on clea r and co nvincing ev idence cannot be vi ewed on appeal t he same as one that may be sustained on a mere preponderance.” C.H. , 89 S.W.3d at 25. With these considerations in mind, we turn to the evidence presented in this case.

A.P. and K.J.’s emotional and p hysica l needs an d e motional and physic al d an g er now an d in the future Generally speaking, the Aunt testified that the children do not want to live with either parent and that “[i]t’s my under standing that they are happy where they are because of thei r sta ble, l ov ing, hea l thy environment, an d th ey do not like the environment that they came from that was full of violence and yelling and instability.” She testified that in the past she has heard the Father and Mother “scream and holler at one another” i n a “ [l]oud ,” “[p]rof a ne,” and “[f]righte ning ” m anner in fr ont of the children and that the Mother admitted she was in a domestic violence relationship with the Father

.

A concern regarding emotional needs raised at trial is that K.J. was becoming “what they c alled parenti fied ” an d that it was “ caus in g problems b etween these two sisters.” The9

Aunt explained this as “[K.J.] was [A.P.]’s mother” and “they’ve learned to survive the best way that they can

. ” She said “ t ha t we hav e to often remind her that it’s not her job to take care of [ A.P. ] anym ore, t h at that is ou r responsibility, that it’s okay to be her sister” and “just let her be her sister,” which is “ something new to [ K.J.] .” Scibien ski testified that “[K.J.] took care of [A.P.] like a parent” and “was a little more res erved because she h ad t o p rotect [A.P.] ,” but that she now loves when she can go “shopping” or “to a movie” because “ [s]he just got to be a little girl. ” In short, she test ified that “the parentified role no longer exists between the two girls” a nd that “ [t]hey have their o wn i de n tities” now t hat they are living with the Aunt and her family

.

T he Aunt and her family have provided A.P. and K.J. wit h school and extracurricular opport unit ies and A .P . and K. J. have excelled in school

. B ecause A.P. “has lower reading compre hens ion le v els , ” they “are going to have A.P. [i n] a [section] 504 plan” so that “when it comes for standardized testing, she will have the a ccommodations to help w ith her readi ng c omprehen sions.” Hall testified that A.P. is now “excelling” because “the [ Aunt a n d her family] have taken care of [the reading comprehen sion problem] with a 504 plan” and “she gets extra help with her reading, and she gets extra tutorials with her math .” Scibiensk i te stified that she likes that the Aunt is “g etting [A.P.] all t he hel p ” and “al low[ing] [K.J.] to be herself and enjoy her own interest

. ” Scibi enski testified that K.J. and A.P. are doing well and th riving “not because of the parents, but in spite of thei r parents.” In fa ct, she said, “[t]hey are flourishing”
and it would b e in the ir bes t interest for them to stay there.

As to emotional and physical danger now and in the future, the Mother admitted that there was domestic violence in her relation ship with the Father , that she “put [her ]self i n situations that [she ] proba b l y sh oul dn’t have for that man , ” and “that has a lot to do with why [she] may be here today.” The Mother also testified that “if [A.P.], in fact, said that she had a10

black eye and she got t he black eye because [ the Mother ] an d [ Father ] were fightin g over h er a nd
t hat’s how she got the black eye” and that “i f the child said that she was choked by a seat belt when [ the Mother and Father ] were fighting,” she would not be lying. Sh e testified t hat her chil dren were exposed to dom estic violence b etween her an d the Fath er , a nd she even admitted to Basti a n that the Father had tried to kill her. Yet, she nevertheless testified that she “just recently started talking to him again” and th at she is not sure that t heir marriage “is ever going to work or if it i s fix a b le,” but that “anything is possible” and she is “just leaving the door open for continuation of this relationship.” In contrast, Hall testified that the current placement with the
Aunt i s “probably one of the first times in [the children’s] live s the y a r e l ivin g in a home that is drug and violen [ce] free .”

The Mother ’s parental abilities , plans for the child ren, and stability of he r home

O’Reilly raised concerns regarding th e Mother ’s parental abilit ies in the educational context, although she d id not d is pute that A.P. “appeared to be happy, fed, and
p roperly clothed most of the time at school.” She testified t hat parent

- teach er conf erences were set up regarding A.P. but t hat the Mothe r did not come to them. She also test ified as to concerns

re gardin g A. P.’s school attendance: from September 5 throug h November 9, 2017, A.P. had seven absences, seventeen tardie s, and nine very lat e tardies, an d she left school early four times.
S cibienski als o testified tha t A.P. “was rea lly behind in her readi ng ski l l s” and that both A.P. and K.J. “had very bad atten dance when they were here.” The Fa ther ’s half

- brother’s stepfather
testified that he had concerns r egarding the Mot her ’s parental abil ities because “when they wer e over, the k ids were parked in the bedro o m , and they were never really chec ked on.”11 Hall also raised concerns regarding the Mother ’s parental abilities and described
the Mother ’s visitatio ns with her chil dren as “very concerning and in appropriate .” S he described two examples. First, the Moth e r became frustrated when Hall to ld A.P. that her father was in jail and that is why he could not visit

. Th e Mother then told A.P. th at “he’s not in jail. He is in the hospital. He has cance r like your papa who di ed from i t, b ut don’t worry, you r dad’s n o t going to die.” Second, Hall described how she had to tell the Mother that it was inappropriate to be “talking about a friend of h er s who had died ” because “[i]t was the same friend that [A.P.] had made allegatio ns of sex ual abuse against , ” and that ev e n though the Mother “never belie ved her daughter’s outcry of sexual molestation by this man,” the Mother “did not need to be discussing
th is man with her daughter.”

Scibienski testified that the Mother “has a beauti f ul h eart” and “loves her ki d s,” but t h a t during this case “neither o f these two girls [A.P. and K.J.] have asked abo ut their mother,” which she found quite “odd

. ” I n view ing the Mother ’s interactions with her daughters, she did not see a connection bet ween th em. S he also has con ce rns about t h e Mother ’ s parenting abilitie s, including “her drug use,” “[h]er instability, ” and “[t]he fact that she was living in a trailer, getting up i n the middle of the night and moving to avoid authorities and dragging those
two b eauti ful girl s with h er.”

As t o substance abuse, evidence at trial indicated that the Mother drank “an

ext ensive amount of alcohol and wou ld drive with [the children] in the vehicles under the influence,” and tested positive for illegal drugs

. 5 O n D ec ember 4, 2017 , the Mo ther te sted

5 “Proof of acts or omissions providing grounds for termination unde r section 161.001(b)(1) does not relieve the p etitioner from proving the best

- interest element, but the same evidence may be probative of both.” Id. at 6 31

– 3 2 ( citing In re C. H. , 89 S.W .3d 17, 2 8 (T e x. 2002 ) )

.12

p o sitive for methamphetamine

. Basti a n testified t hat s he then drove the Mother to the office to administer a mail

- off drug test , and on the way, they stopped at a “gas station, where [ the Mother ] purchase d a tall Smir nof f alcoholic beverage, w hich she hid i n her pu rse, that I did not see until we got to the CPS office.” The Mother tested positive for cocaine, marijuana, and methamphetamine on February 9, 2018, and methamphetam ine, benzodiazep ine, hydrocod one, and hydr omo rphone on Ma rch 5, 2018

. T he Mothe r did not complete requested drug tests on March 1 and 27 and April 4, 12 , and 26 . After April 26, Hall testified that she was unable to send the Mother more drug scree ns because she “ could not get ahold of her, and then she was in jail as of May 31st.” T h e Mother acknowledged that she has “made some bad decisi ons in the past” and admitted to using illegal drugs, but she feels that she ha s learned to make better decisions in the future a nd wants “an opportunity to get ou t and be the best tha t [she could] b e for [he r] two little girls and for [her] family who nee d [her].”

Hall also testified that the Mother failed to comply substantially with the terms of the Department ’s service plan: she did not complete her psychol ogical evaluation; sh e failed to show u p for multiple drug and alcohol assessments; s he faile d to show up for the scheduled intensive outpatient programs she was recommended to do; she did not complete any substance abuse program; she did not comple te a do mestic violence inter ve ntion program; h er pro bation

was revoked twice in the course of the ca se and she ended up in jail ; she did not maintain a h ome that was saf

e, drug free, and violence free; she has not offered any proof of employment; and she
f requent ly did not complete r an do m drug testi n g and t ested positive for drugs when she did complete t he testing. A s previously mentioned, the Mother also missed or showe d up late to a majority of her visitations with her children

. In short, Hall testified that t he Mot her has not dem on strated to the D epartm ent th at she is able to have her children return ed because she has not13

provided any certificate s of completion for any programs and she has not done the checklist of goals identified in the service plan

.

T he re is some evidence tha t the Mother mis s e d ap pointments due to vehicular troubles and that sh e was unable to complete her service plan due to he r incarceration in the SAFP facility. She testified that she enrolled in classes while in the SAFP facil ity tha t woul d meet h er servic e plan requir eme n t s , i ncluding classes on parenting, anger management, thinking for a change, life skills, and HIV a nd sex. She also listened when counselors would come in and speak on domestic violence relationships. Howeve r, she admitt ed that she did n ot complete t he
S A FP p rogram or her service plan because she “was a me ss”; her “kids just got ripped” from her;
she was getting a di vorce; she “started drinking” during this case because she “fell in a really dark place in [he r] life ”; and she “ch ose to hi de from every bod y beca use [she] was embarrassed.”
As to the Mot her ’s plans for the children, t he record does not i ndicate that the Mother has any plans

. Hall testified that she was unable to visit the Mother ’s home to check whethe r it was s uitable for t he children duri n g the pend ency of this case because she “got
informed that [ the Mother ] had been evicted from t hat residence, a nd then the RV had burned and she couldn’t stay there, and she was bouncing all over. So she never had a s table ho me that I

cou ld actually go a n d phy sically see .” The Mother admitted that she does not have a job or a safe and stable home for the children

. The Mother testified that she is “capable” to receive her children, “but just not at this t ime.” She te stified that she “kno w[s] that withou t a do ubt, [she]’ll have [he r] kids one day , ” but did not explain her plans for how she will h ave them, just t hat she’s “trying to figure it out.” A lthough she wa s currently in jail, she testified that “[i ]f it were
po ssible t hat [she] wou ld be released f r o m ja il next week , ” she woul d “choose to go to a half way home or an outpatient facility” and th at she “would li ve either with [her] mother” or in her RV14

parked near her probation officer “so that [she] c an make sure that [sh e is] on time t o [her] PO visit s . ” B ut her plan does not account for her children an d , according to Hall, Guadalupe County at the time of t he trial wa s seeking to revoke the Mother ’s probation , and the Mother would be “facing ten years ,” which wou l d be of “some concern with respect to a n y lo ngevity or permanency between her and the girls. ”

The Department’s plans for the child re n and the stabil ity of the proposed placement

Hall testified that the Department’s permanency plan for the ch ildren is “a d option b y the [the Aun t] .” The Aunt t e stified th at she and her husband “would lov e to adopt both girls , ”

a nd Scibienski confirmed that s he believe s the Aunt want s to adopt the children “very much so.”
The Aunt explained that A.P. “has expressed t hat she wants to live with us forever , ” K.J. “ h as
express ed that she wants to stay wher e she is , ” neither child requests to speak with their m other , and the Aunt “ do[es]n’t think that they want a relationship with their mother.” The Aunt testified that both g irl s “are hap py, stab le, h ealthy and well

- a djusted”; t hey ha ve bonded with her
two children , and the f

our girls have a relationship “of normal sisters ”; and “they are happy where they are because of their stable, loving, healthy environment, and they do not l ik e the environ ment tha t they came fro m that was fu ll of violence and yelling and instability. ” Gi ven her concerns regarding the Mother , the Aunt te stified that she would not consider supervised contact for the children with the Mother if the children wer e to stay with th e Aunt an d her family
p ermanently after the tria l. Scibienski also testified that the chil dren have “stated they are home” in Louisiana with th e Aunt and th at “[t]his is where they want to be.” She also testified that the
Aunt is a schoo l principal and “[t] hat ’s about a s sta b l e as you get, I feel, fo r a home environment for children.”15 There was no evidence to the contrary. The Mother considered h erself “blessed” and “thankful” that the children are currently with the Aunt and said that she knows “without a
d oubt that th ey a r e o kay and they are s afe.” The Father testified that “they are in a good environment” and that he “know[s] that [his] sister is tak ing good care of them.”
Conclusions regarding sufficiency

In sum, the Department p resented evidence that :

• T he Mother u s e d metham phetamine and other illegal drugs both before and after the c hildren were removed

. See A. C. v. Texas Dep’t of Family & P ro tectiv e Serv s . , No. 03

- 18

- 00818

- CV, ___ S.W.3d ___, 2019 WL 2384152, at *9 (Tex. App

. — Austin June 6, 2019, no p et. h.) ( n o t i ng tha t “ drug

- related condu ct ” may be given “ great weight ” by fact fi nder and that even if parent “ might have stopped using methampheta m ine later in the cas e , ” factfinder “ could have reasonably inferred that the [par e nt ’ s] past conduct cou ld re c ur in th e future if th e child we re to be returned ” ); In re F.A.R. , No. 11

- 04

- 000 14

- CV , 2005 WL 181719, at *4 (Tex. App.

— Eastland Jan. 13, 2005, no pet.) (mem. op.) ( noting that con tinue d drug use demonstrates “an inability to provide for [ the child’s] emotional and physi cal n e eds” an d to p rovide “ a stable environment for” the child).

• S he was i nv olved in a violen t relationship with th e Father where A. P. was injured during one epis ode and the Father had threatened to kill the Mother in anoth er episode , but the Mo t her still co nt e mpl ated the possibility of continuing her relationship with the Father

. See In re A.M. , 385 S.W.3d 74, 82 (Tex. App.

— Waco 2012 , pet. denied) (holding that

“ [e] vidence of past miscond uct or neglect can be used to measu re a parent ’ s future c o nduc t ” inclu di n g “ a hi story of neglect ing and endangering the children, of exposing th em to domesti c violence (between Appellant and the child ren ’ s father), and of unstable housing, employment, and relationships ” ); Smith v. Texas Dep t. of Protective & Reg u lato ry Serv s . , 1 60 S.W.3d 673, 68 1 (Te x. App.

— Austin 2005, no pet.) ( “ [I] n determining whether a child has been endangered by a parent ’ s con duct, it is not necessary that the conduct be directed at the child or that the child actuall y suffer injury. ” ); Wi l liam s v. Wil li a m s , 150 S.W.3d 436, 451 (Tex. App.

— Austin 2004, pet. denied) ( not ing th at “a fact finder may infer that past conduct endanger ing the well being of a child may recur in the future if the child is returned to the parent ” )

.

• S he did not comp l ete he r serv ice p lan ; only took classe s comparable to some of the classes required by the service plan when she entered the SAFP facility, but did no t complete the SAFP program ; failed to visit her children regularly and timely while the case was pending ; and a c ted improp e r ly i n some of the vi sitations for which she did show up . See A. C. , 2019 WL 2384152 , at *10 (noting that factfinder could have r easonably16

inferred that parent “ was no t ready , willing, or able to be a parent to the c hild ” from

“ failure to visit the chi ld o n a c onsistent, regul ar basis ” and “ failure to complete [] parenting classes ” ); In re S.N. , 287 S.W.3d 183, 193 (Tex. App.

— Housto n [14th Dist.] 2009, no pet.) (conclud ing that parent ’ s inconsistent and missed visits and failure to complete pare n ting class e s sup ported trial cou rt ’ s best interest determination)

.

• S he undispute dly does not have a job or a safe and stable home for the ch ildren

. See A.M. , 385 S.W.3d at 82

– 83 ( noting that “ [ t ] he need for permanence is a pa ramount consideration f

or a c hild ’ s pre s en t an d future physic al and emotional needs ” and consid ering the histo ry of “ unstable housing, employment , and relationships ” )

.

• S he faced an uncertain future and potentially “would be sent to prison for ten years.” See i d. at 82 (conside ring i n best int e re st a nalysis that “ A ppellant was subject to having her community supe rvision revoke d and being incarcera ted ” ) ; Smith , 160 S.W.3d at 682 ( “ Moreover, conduct that routinely subjects a child to the probability that the child will be left alo ne bec ause her p a re nt i s jailed endang ers both the physical and emotional well

- being of the child. ” )

.

Meanwhi le, the Department’s plan for the children was adoption by the Aunt , where the children are thriving, happy, and in a “ s table, loving, healthy env ironm ent.” S ee A .L .G.A. v. Texa s Dep ’ t of Family & Protective Serv s . , N o. 03

- 19

- 00086

- CV, 2019 WL 2998587, at *9 (Tex. App.

— Austin July 10 , 2019, no pet. h.) (mem. op.) ( “ A parent ’ s rights may not be terminated merely because the children might be bett er off l iving el se w here, but the fa ctfinder may consider whether termination and ado ption versus an impermanent foster

- care arran gement would better serve the children ’ s best interest. ” ). Viewing this evidence in the light most favo rable to the trial

cour t’s find in g, we co n clude that a rea sonable factfinder could for m a firm belief or co nviction that termination of the Mother ’s parental rights is i n the best interest of th e children

. Thus, legally sufficient evidence supports the fi nding.

We also reac h the sa me conclusio n regarding th e factual sufficiency of the evidence for similar reasons . Importantly, here there was evidence that the Mother used metha mphetami ne and other illegal drugs while the case was ongoing , and “[a] fact finder is17

entitled to g ive ‘grea t weight’ t o a parent’s d rug - related conduct, as it is considered a ‘signi ficant factor’ supporting termination.” See A. C

. , 2019 WL 23 84152, at *9 (collecting cases and quoting In re E.R.W. , 528 S.W.3d 251, 266

– 67 (Tex. App

. — Houston [14th Dis t.] 201 7, no p e t.);
In r e K.C. , 219 S. W.3d 924, 927

– 29 (Tex. App.

— Dallas 2007, no pet.) ). B oth Hall and Scibienski testified that it would be in the best interest of the children for the Mother ’s parental rights to be terminate d and f or the c hildren to remain with the Aunt

. To t he extent that there is any evidence that termination of th e Mother ’s parental rights would not be in the best interest of the child ren , w e are unable to conclude that the evidence is “so significant tha t the f actfi n de r could not have for med a f irm belie f or conviction ” that termination was appropriate here. See
A.C

. , 560 S.W.3d at 631 ; see also M. V. v. Te xas Dep ’ t of Family & Protective Serv s . , No. 03

- 19

- 00066

- CV, 2019 WL 2518733, at *6 (Tex. App.

— Austin June 1 9, 20 19, no p et. h.) (mem. o p.) ( “ In consideri n g a child ’ s present and future emotional and physical needs , the need for permanence is of paramount im portance, and in the end, if there are competing interests, a parent ’ s inte rest must yield to the child's bes t interest

. ” ); Smith , 1 60 S.W. 3d at 681 ( “ [ I ] n conside ring the best interest of the child, evidence of a recent turn

- around in behavior by the
pare nt does not totally offset evidence of a pattern of instabil ity and harmful behavior in the past. ” )

. Acco rdi ng ly, the evidence is f actuall y sufficient t o support the trial court’s determination that termination of the Mother ’s parental rights is in the be st interest of the children. We therefore overrule the Mother ’s sole issue on appeal.

CONCLUSION For th ese r easons, we dismiss th e Fathe r ’s appeal fo r want of p rosecution and affirm the trial court’s order of termination as to the Mother ’s parental righ ts.18 _____________ ____________________________ _ Melissa Goodwin, Justice Before Justices Goodw in, Baker, and Kelly
Aff irmed in Part ; Dismissed in Part Filed : August 22, 2019