Opinion issued April 1, 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 20 - 00764 - CV

——————————— IN THE INTEREST OF N.S.M., A CHILD
On Appeal from the 314th District Court

Harris County, Texas Trial Court Ca se No. 2019 - 02994J

MEMORANDUM OPINION This is a parental

- termination suit in which the trial court entered a decree terminating a mother’s rights as to her daughter. The mother appeals contending that the evidence is factually in sufficient to support the trial court’s finding that termination of her parental rights is in her daughter’s best interest. We affirm.2 BACKGROUND The Department of Family and Protective Services sought to terminate the mother’s parental rights as to her daughter, N.S.M., who was 14 months old at trial. As grounds for termination, the Department relied on Section 161.001(b)(1)(M) of the Fa mily Code, which authorizes termination when a parent has “had his or her parent

- child relationship terminated with respect to another child based on a f i n ding that the parent’s conduct was in violation of Paragraph (D) or (E).” Paragraph (D) and (E), in t urn, concern conditions and conduct that endanger the physical or emotional wellbeing of a child. T EX
. F AM
. C ODE § 161.001(b)(1)(D)

– (E). The case was tried to the bench. The facts were largely undisputed. The Department presented several exhibits and the testimony of three witnesses: the caseworker, the child’s guardian ad litem, and the child’s current caregiver. Neither the father nor the mother testified. Nor did they offer any evidence. N.S.M. was born in July 2019. The Department took her into its car e three days later because her mother was homeless , and her father was in jail for assaulting her mother during the pregnancy. The mother has a history of drug use. When N.S.M. was born, she and her mother tested negative for drugs. But the record does no t disclose what type of test the hospital administered. W hen the mother submitted a hair sample for testing nine days after N.S.M. ’s birth , the result was positive for cocaine. The mother nonetheless3

told the Department she had never used cocaine. When the mother was last drug tested , several months before trial, the result w as negative. But on this occasion , she only submitted a urine sample; she did not submit a hair sample. The mother has a long history with the Department. The Departm ent introduced s ix pr ior decrees terminating the mother’s parental rights as to her other nine children:

• a July 2009 termination decree as to four children;

• a July 2009 termination decree as to a fifth child;

• a June 2016 termination decree as to a si xth child;

• an August 2016 termination decree as to a seventh child ;

• a November 2016 termination decree as an eighth child ; and

• an October 2017 termination decree as to a ninth child. Both July 2009 decree s include findings that the mother had knowingly placed or allowed the children to remain in conditions or surroundings that endangered their physical or emotional wellbeing and engaged in conduct or knowingly placed the children with persons who engaged in conduct that end angered their physical or emotional wellbeing. See F AM . § 161.001(b)(1)(D)

– (E). The November 2016 decree likewise included these same child

- endangerment findings. See id. N.S.M.’s mother “has a history of depression and anxiety , ” which is

un managed by trea tment or medication

. She also has a criminal history, including a4

2015 charge for child abandonment or endangerment, which resulted in 2 years’ probation

. See T EX
. P ENAL C ODE § 22.041(b)

– (c)

. A fter N.S.M. came into the Department’s care, her mother obtained housing. She has not been homeless since

. The mother has maintained regular contact with the Department. She has visited N.S.M. and has behaved appropriately during these visits. But the moth er’s visits with the child have been infrequent. In the nine months before trial, she visited her daughter on just three or four occasions. Since April 2020, N.S.M. has lived with a caregiver who has adopted s ome of her half

- siblings. According to the cas eworker, N.S.M. loves the caregiver and her siblings. N.S.M. is now walking and playing. The caseworker had no concerns about N.S.M.’s safety in her current placement. The caseworker testified that if the mother’s rights are terminated, th e caregiver plan s to adopt N.S.M. The caseworker opined that termination and adoption was in N.S.M.’s best interest because it would give N.S.M. a permanent , s table home and maintain her relationships with the half

siblings with whom she currently resides as well as her ot her half

- siblings whom her current caregiver ensures she visits

. The mother gave the Department the names of several persons with whom N.S.M. could be placed. But the Department ruled them out on various grounds. A maternal aunt was unsuitable due to her criminal history and history of drug abuse. A friend of the mother was discounted because she had no prior relationship with5

the family and had a history with Adult Protective Services. The Department ruled out anoth er ostensible friend of the mother based on her lack of a prior relationship with the family

. Finally, a nother relative identified by the mother did not give the Department the information it needed to evaluate her suitability. N.S.M.’s guardian ad litem also recommended that the mother’s parental rights be terminated. The guardian ad litem testified that she based her recommendation on the mother’s “history of previous terminations and lack of stability in her life.” With respec t to the mother’s lack of stability, the guardian ad litem specifically referred to the mother’s history of drug abuse and inability or unwillingness to remain employed. Like the caseworker, the guardian ad litem testified favorably about N.S.M.’s
current placement. The guardian ad litem testified that N.S.M. “has a very strong bond with the caregiver and her siblings in the home.” N.S.M. is “happy,” “very active,” and receives lots of attention and affection. Finally, N.S.M.’s current caregiver testified . She characterized her bond with N.S.M. as “very strong.” She testified that she intends to adopt N.S.M. if the mother’s parental rights are terminated. In her opinion, termination and adoption are in N.S.M.’s best interest. The trial court issued a decr ee terminating the mother’s parental rights as to N.S.M. because her parental rights as to other children had been terminated on child

-6

endangerment grounds and termination was in N.S.M.’s best interest. It also terminated the father’s parental rights. The mother appeals. DISCUSSION The mother does not contest that the previous decrees terminating her parental rights as to her other children on child

- endangerment grounds constitute a valid basis for termination of her parental rights in this case. See F AM
. § 161.001(b)(1)(M). Nor does she contest that the evidence is legally sufficient to show that the termination of her parental rights is in N.S.M.’s best interest. See id. § 161.001(b)(2). Instead,
t he mother contends that the evidence is factually in sufficient to show that th e termination of her parental rights is in N.S.M.’s best interest. See id.

Legal Standard for Terminating Parental Rights A parent ’ s rights to the care, custody, and management of his or her child are constitutional in scope. San tosky v. Kramer , 455 U.S. 745, 758

– 59 (1982); In re M.S. , 115 S.W.3d 534, 547

– 48 (Tex. 2003). But parental rights are not absolute; the Department may seek termination of the rights of those who are not fit to accept the responsibilities of parenthood. In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003). The primary focus in a termination suit is protecting the child ’ s best interest. Id. To terminate a paren t’s rights, the Department must establish that the parent committed one or more statutorily enumerated predic ate acts or omissions and that7

termination is in the child ’ s best interest. F AM
. § 161.001(b)(1)

– (2). The Department need only establish one of these predicate acts or omissions in conjunction with the best

- interest finding. See id. ; In re A.V. , 113 S.W.3d at 362. Though the two requirements are distinct, evidence that is probative of the parent’s acts and omissions may be probative of the child’s best interest. In re M.D.M. , 579 S.W.3d 744, 76 9 (Tex. App.

— Houston [1st Dist.] 2019, no pet.). T he Department must make both showings by clear and convincing evidence , which is “proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations soug ht to be established.” F AM
. §§ 101.007 , 161.001(b)

. Because of the constitutional nature of parental rights, the best

- interest inquiry begins with a presumption that it is in a child’s best interest to be r aised by his or her parent s . See In re G.M. , 596 S.W.2d 846, 84 6

– 4 7 (Tex. 1980). But l ike any other presumption, th is presumption yields to contrary evidence, provided the evidence is clear and convincing

. S ee id. at 847 ; see also Cervantes

- Peterson v. Tex. Dep’t of Family & Protective Servs. , 221 S. W.3d 244, 254 (Tex. App.

— Houston [1st Dist.] 2006, no pet.) (en banc) (Department has burden to rebut presumption that child’s best interest is served by remaining in parents’ custody ). Multiple non

- exclusive factors bear on a child ’ s best interest. Holley v. Adams , 544 S.W.2d 367, 371

– 72 (Tex. 1976). These include:

• the child ’ s desires;8

• the child ’ s physical and emotional needs now and in the future;

• the physical and emotional danger to the child now and in the future;

• the parental abilities of those seeking custody;

• the programs available to assist them to promote the child ’ s best interest;

• their plans for the child of those seeking custody;

• the stability of the home or proposed placement;

• the acts or omissions of the parent that may indicate the existing parent

child relationship is not proper; and

• any excuse for the parent ’ s acts or omissions. Id. ; Yonko v. Dep ’ t of Family & Protective Servs. , 196 S.W.3d 236 , 243 (Tex. App.

— Houston [1st Dist.] 2006, no pet.). These factors are not exhaustive, no one factor is controlling, and a single factor may be adequate to support termination on a particular record. In re C.H. , 89 S.W.3d 17, 27 (Tex. 2002); In re J.M.T. , 519 S.W.3d 258, 268 (Tex. App.

— Houston [1st Dist.] 2017, pet. denied). Multiple additional factors may be relevant in assessing a parent’s willingness and ability to provide a child with a safe environment in a given case. See F AM
. § 263.307(b).

Factual Sufficiency Review in Termination Cases Because of the elevated burden of proof in a termination suit

— clear and convincing evide nce

— we do not apply the traditional formulation of factual sufficiency on appeal. In re A.C. , 560 S.W.3d 624, 630 (Tex. 2018). In a factual

- sufficiency review in a termination case, we must weigh disputed evidence contrary to a finding against all the evid ence in its favor. Id. at 631. We9

consider whether the disputed evidence is such that a reasonable factfinder could not have resolved it in the finding’s favor

. Id. The evidence is factually insufficient if, in light of the entire record, the disputed evid ence a reasonable factfinder could not have credited in a finding’s favor is so significant that the factfinder could not have formed a firm belief or conviction that the finding is true. Id. In reviewing for factual sufficiency, however, we must be carefu l not to usurp the factfinder ’ s role. In re A.B. , 437 S.W.3d 498, 503 (Tex. 2014). The factfinder is the sole arbiter of witness credibility. In re J.O.A. , 283 S.W.3d 336, 346 (Tex. 2009). In a bench trial, the trial judge is the factfinder who weighs the evidence, resolves evidentiary conflicts, and evaluates the demeanor and credibility of witnesses

. In re R.J. , 579 S.W.3d 97, 117 (Tex. App.

— Houston [1st Dist.] 2019, pet. denied). Because the trial judge saw the witnesses firsthand, we must give him or her due deference, notwithstanding the heightened factual

- sufficiency standard. In re J.S. , 584 S.W.3d 622, 634 (Tex. App.

— Houston [1st Dist.] 2019, no pet.). Analysis The mother contends t he evidence is factually in sufficient to support the trial court’s best

- interest finding . In support of this contention, the mother argues that the evidence shows she continues to have a bond with her daughter. She further argues that termination is not ne cessary to keep her daughter in her current placement.10 N.S.M.’s Desires N.S.M. is too young to make her desires known , which ordinarily results in this factor being neutral as to termination

. In re M.A.J. , 612 S.W.3d 398, 410 (Tex. App.

— Houston [1st Dist. ] 2020, no pet.). The mother concedes th at this is so , but she nonetheless argues that the trial court should have consider ed the mother

daughter bond in lieu of an expression of N.S.M.’s desires. At multiple points in her brief, the mother asserts that there remains a bond between her and her daughter. But the mother does not cite to any evidence s upport ing her assertion. She instead a rgues that the bond is evident from her consistent visitation with her daughter or that the mother

- daughter relation ship makes the existence of a bond self

- evident

. The record, however, does not support the mother’s argument. The Department took N.S.M. into its care three days after she was born . At trial, N.S.M.

was 14 months old. In the preceding nine months, the moth er visited N.S.M. three or four times. The evidence does not show that these visits created a bond between the two or that a bond otherwise existed

. So while we agree that evidence of a parent

child bond may su bstitute for evidence of a child’s desires whe n the child is too young to co mmunicate them , the trial court could have reasonably found that no such bond exist s in this instance

. See In re N.J.H. , 575 S.W.3d 822, 834 (Tex. App.

— Houston [1st Dist.] 2018, pet. denied) (when child is too young to express desires, factfinder may consider evidence that child has spent minimal time with parent) ; In11

re T.G.R.

- M. , 404 S.W.3d 7, 16 (Tex. App.

— Houston [1st Dist.] 2013, no pet.) ( factfinder could infer lack of mother

- son bond from evidence that mother had not taken care of son who was under the age of two since two months after his birth). To the extent the mother argue s that a parent and child have a natural affinity and a factfinder must give some evidentiary weight to this innate bond , we disagree. The law already accounts for the affinity that usually exists between a parent and child by presuming that continuation of the ir relationship is in the child’s b est interest. See In re V.L.K. , 24 S.W.3d 338, 341 (Tex. 2000). But evidence of a biological relationship , standing alone, is not proof of a parent

- child bond

. For purposes of the best

- interest inquiry, a parent

- child bond exists only if the two have forme d a relationship “based on shared feelings, interests, or experiences.” See N EW O XFORD A MERICAN D ICTIONARY 194 (3d ed. 2010) (defini ng “bond”)

. Whether such a relationship exists necessarily turns on evidence other than a biological connection. See, e.g. , In re S.C.F. , 522 S.W.3d 693, 702 (Tex. App.

— Houston [1st Dist.] 2017, pet. denied) (reasonable factfinder could decide based on conflicting ev idence that father lacked bond with children). To hold otherwise would deprive an alleged parent

- child bond of evidentiary value as a proxy for the child’s desires. Thus, this factor remains neutral with respect to N.S.M.’s best interest.12

N.S.M.’s Physica l and Emotional Needs and Danger to N.S.M. As for the physical and emotional needs of N.S.M. and the physical and emotional danger to N.S.M. , the mother concedes that she “could not as of the time of trial provide a safe and stable home for her daughter” a nd that this “weighs heavily in favor of termination.” Because N.S.M. is very young and thus especially vulnerable, the trial court could have reasonably found that the mother’s admitted inability to provide a safe and stable home for N.S.M. heavily weighe d in favor of termination

. See In re J.M.T. , 519 S.W.3d at 270

– 71 (14

- month

- old ’s vulnerability weighed in favor of finding that termination was in her best interest). In addition, a s previously discussed , the mother visited N.S.M. three or four times in the nine months before trial. The trial court could have reasonably found that the mother’s sporadic and minimal visitation of the child constituted further evidence that the mother is incapable of or unwi lling to meet N.S.M.’s physical or emotional needs now and in the future

. See In re R.J. , 579 S.W.3d at 115 (minimal visitation relevant to multiple Holley factors, including child’s current and future physical and emotional needs and parent’s ability to c are for child ). Furthermore , the mother has repeatedly failed to provide a safe and stable home for other children in the past , a circumstance which the trial court could consider in evaluating her ability to meet N.S.M

. ’s needs

. See In re M.D.M. , 579 S.W.3d at 770 (factfinder may infer parent’s future conduct from past conduct and13

should consider history of child neglect in best

- interest analysis). The mother’s parental rights have been terminated with respect to nine other children. As to five

o f these children , her rights were terminated on child

- endangerment grounds. The trial court could have reasonably found that t hese prior terminations evidence d that the mother cannot meet N.S.M.’s physical or emotional needs now or in the future and that s he poses a physical or emotional danger to N.S.M

. S ee, e.g. , In re J.M.G. , 608 S.W.3d 51, 54

– 55 (Tex. App.

— San Antonio 2020, pet. denied) ( considering prior termination decree that included endangerment findings as evidence that termination of parental rig hts was in best interest of another child )

. O n this record, these two factors

— N.S.M

. ’s physical or emotional needs and the danger posed to N.S.M.

— support the trial court’s best

- interest finding

.

Parental Abilities of Those Seeking Custody of N.S.M. The mother has a history of depression and anxiety. She has not managed these conditions through treatment or medication . S he concedes that she “is unable to protect her children due to her own emotional fragility” and that “mental illness fore ver may prevent her from effectively parenting , ” which she further acknowledges “weighs considerably in favor of termination.” Mental illness , in and of itself, is not a ground for the termination of parental rights. Li u v. Dep’t of Family & Protective Ser vs. , 273 S.W.3d 785, 791 (Tex. App.

— Houston [1st Dist.] 2008, no pet.). But the impact of a parent’s mental illness14

on the ability to parent and the stability of the home are relevant when assessing a child’s best interest

. In re R.J. , 579 S.W.3d at 118. H ere, t he trial court could have reasonably found that the mother’s history of untreated depression and anxiety evidenced that termination i s in N.S.M.’s best interest

. See id. at 119 ( best

- interest finding supported by evidence that father with history of mental illness was not receiving adequate treatment , potentially subject ing son to uncertainty and instability); Jordan v. Dossey , 325 S.W.3d 700, 732 (Tex. App

. — Houston [1st Dist.] 2010, pet. denied) ( evidence that mo ther failed to take medications prescribed for severe mental illness, did not attend all medical appointments, and discontinued therapy supported finding that termination was in son’s best interest ). In addition, the mother has a history of drug abuse , whi ch the trial court was entitled to afford great weight in assessing her parental fitness and N.S.M.’s best interest

. See In re N.J.H. , 575 S.W.3d at 834 (pattern of drug use relevant to multiple Holley factors, including parenting ability, stability of hom e, child’s physical and emotional needs, and physical and emotional danger to child) ; In re J.M.T. , 519 S.W.3d at 269 (parental drug abuse reflects poor judgment and may be factor in deciding child’s best interest ) . Here, the mother ’s hair tested positive for cocaine within nine days of N.S.M.’s birth , a fact from which the trial court could have reasonably inferred drug use during pregnancy or soon afterward

. The trial court could have reasonably further found that either circumstance indicated an inability15

or unwillingness to properly parent N.S.M

. See In re A.C. , 394 S.W.3d 633, 642 (Tex. App.

— Houston [1st Dist.] 2012, no pet.) (drug use during pregnancy was evidence termination was in child’s best interest) ; Toliver v. T ex. Dep’t of Family & Protective Servs. , 217 S.W.3d 85, 100 (Tex. App

. — Houston [1st Dist.] 2006, no pet.) (mother’s drug use took on added significance because child was fragile and needed constant supervision). Moreover, r ather than conceding that she had used cocaine , the mother denied it and said she did not understand how she could have tested positive

. Sitting as factfinder, the trial court was entitled to disbelieve the mother’s denial. See Walker v. Tex. Dep’t of Family & P rotective Servs. , 312 S.W.3d 608, 61 8

– 1 9 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied) (rational factfinder could credit positive drug test results over father’s testimony denying drug use). Based on the evidence of the mother’s history of drug use and the positive drug tes t result, the trial court could have reasonably inferred that she remains at risk for continuing drug use or relapse

. In re J.M.T. , 519 S.W.3d at 269. T he trial court could hav e reasonably further found that the mother’s apparent lack of candor about her d rug use increases this risk. See Wyatt v. Dep’t of Family & Protective Servs. , 193 S.W.3d 61, 70 (Tex. App.

— Houston [1st Dist.] 2006, no pet.) (considering parent’s lack of candor as to illegal drug use in best

- interest inquiry ).16

The mother argues that the record contains contrary evidence as to drug use too, and she is correct. T he drug test she took in the hospital was negative. In addition, her most recent April 2020 drug test was negative as well

. Given the record as a whole, however, the trial court co uld have reasonably found the evidence on which the mother relies less persuasive than the evidence of her drug use

. The record does not divulge what method of test the hospital administered, and the mother’s later negative result was from a urine test. S o on after the unspecified hospital test and well before the urine test, the mother had a hair test with a positive result. It is not uncommon for a person to contemporaneously submit a urine sample that is clean and a hair sample that shows drug use due to the differing timeframe of use that each method of testing is capable of detecting. See, e.g. , In re J.S. , 584 S.W.3d at 636 (father’s urine test results were clean but contemporaneous hair test results showed continued drug use); In re D.J.W. , 394 S.W.3d 210, 217 (Tex. App.

— Houston [1st Dist.] 2012, pet. denied) (mother’s urine test was negative at same time her hair test was positive). And while the last drug test the mother took was negative, this single urine test did not negate the uncontradicted evidence that she had a history of drug use. See In re N.J.H. , 575 S.W.3d at 835 ( father’s single negative dru g test after treatment for substance abuse did not negate pr ior history of drug use) ; see also In re R.J. , 579 S.W.3d at 118 (father’s nonuse of drugs for extended period and completion of outpatient drug treatment program did not17

disallow factfinder from inferring he was at risk of continuing substance abuse from evidence of past use). Finally, the record contains evidence that the mother was charged with abandoning or endangering another child several years ago , which the trial court could have reasonably found indicative of a lack of parental ability. See Walker , 312 S.W.3d at 619

– 20 (prior arrest for child neglect evidenced lack of parental ability). Likewise , we think the repeated termination of the mother’s parental rights with respect to multiple othe r children is indicative of a lack of parental ability. In contrast, the caseworker testified without contradiction she had no concerns about safety or endangerment with respect to N.S.M.’s current placement. The caseworker also testified that N.S.M.’s hal f

- siblings have lived with N.S.M.’s current caregiver for quite a while without any indication of abuse or neglect. On this record, this factor

— the parental ability of those seeking custody of N.S.M.

— supports the trial court’s best

- interest finding. Plans for N.S.M. and Stability of Home or Proposed Placement N.S.M.’s current caregiver intends to adopt her if the mother’s parental rights are terminated. It is undisputed that N.S.M. is doing well in her current placement and has developed a strong bond with her caregiver and half

- siblings. The trial court could have reasonably consider ed this evidence in finding that termination i s in N.S.M.’s best interest

. See In re N.J.H. , 575 S.W.3d at 834 (when child is too young18

to e xpress desires, factfinder may consider evidence that child has bonded with and is well

- cared for by foster family) ; Jordan , 325 S.W.3d at 731 (considerin g evidence of plan to adopt and stability of placement in best

- interest inquiry ). In contrast, t he mo ther has not articulated any specific plans for N.S.M. The mother nonetheless argues that th ese factor s do not support termination because she has demonstrated a “willingness to parent” and the preservation of her “parental rights, arguably, would do little to disrupt or prevent” the continuation of N.S.M.’s current placement. But the trial court could have reasonably discounted the m other’s avowed willingness to parent given the evidence of her repeated failure to properly care for multiple children. See Jordan , 325 S.W.3d at 731 (discounting mother’s stated intent to be good mother because record indicated she lacked ability). Moreov er, we reject the mother’s argument that the preservation of her parental rights will not disrupt N.S.M.’s current placement because it cannot be reconciled with the mother’s concession that a prompt and permanent placement in a safe environment is in her daughter’s best interest See F AM
. § 263.307(a) (“prompt and permanent placement of the child in a safe environment is presumed to be in the child’s best interest”) ; Walker , 312 S.W.3d at 619 (goal of permanent stable home for child is compelling state inte rest )

. On this record , these two factors

— the plans for N.S.M. and the stability of her placement

— support the trial court’s best

- interest finding

.19 N.S.M.’s Best Interest In sum, multiple Holley factors support the trial court’s best

- interest finding , and none of the Holley factors contradict or undermine its finding. The evidence is quite one

- sided. C onsidering all the evidence in the record, the disputed evidence that a reasonable factfinder co uld not have credited in favor of the trial court’s best

interest finding is not so significant that the trial court could not have formed a firm belief or conviction that termination of the mother’s parental rights is in N.S.M.’s best interest. Thus, we h old that the evidence is factually sufficient to support the trial court’s best

- interest finding. We overrule the mother’s sole issue. CONCLUSION We affirm the trial court’s decree terminating the mother’s parental rights.

Gordon Goodman Ju stice Panel consists of Chief Justice Radack and Justice s Goodman and Farris

.