## In the Court of Appeals Second Appe llate District of Texas at Fort Wo rth

___________________________ No. 02

- 22

- 00205

- CV

___________________________

On Appeal from the 89th District Court Wichita County, Texas Trial Court No. DC89

- CP2021

- 0066 Before Birdwell, Wallach, and Walker, JJ. Memorandum Opinion by Justice Birdwell 

### I N THE 

### I NTEREST OF 

### E.B., A 

### C HILD2 MEMORANDUM OPINION Appellant T. C. (Moth er) appeals the t rial court ’ s orde r t erminating her parental rights to her child, E.B. In three issues, Mother argue s that the e vidence is legally and factually insufficient to support the termination of her parenta l rights under Texas Family Code Subsecti ons 161.001(b)(1)(N) and (O) and that th e e vidence is legally and factually insuffic ient to support the trial court ’ s finding that termination of Mother ’ s parental rights i s in E.B
. ’ s best interest
. We will a ffirm t he trial court ’ s order
te rminating Mother ’ s parental rights to E .B. I. Background On December 29, 2020

— t wo days after E.B. was born

— the Texas Dep ar tme nt of Family and Protective Ser vices (TDFPS) received a report that Mother had given birth to a child and had report ed using ma rijuana and methamphetamine during the pregnanc y. TDFPS opened an inve stigation and ultimately filed a petition seeking removal of E.B. from Mother ’ s care a nd termination of Mother ’ s parental rights
. E.B. was removed on January 11, 202 1
. K.B ., who was later adjudicated as the fat her of E.B., was found deceased in his home the same day
. After a bench trial before an a ssociate j udge , Mother ’ s parental rig hts were terminated based on find ing s that Mother had constru ctively aband one d E. B., that Mother had failed to co mply with her service plan, and that termination of Mother ’ s pare ntal rights i s in E.B. ’ s b est inter est. See Tex. Fam. Code Ann. § 161.001(b)( 1)( N),3 (O) , (b)(2)
. 1 M other then request ed a de novo hearing , a nd the findings of th e
a ssociate j udge were approve d and adopted
. 2 This appeal followed. A . TDFPS ’ s Investigation During its investigation, TDFPS developed concern s related to Mother ’ s illegal drug use , Mot her ’ s mental h ealth , Mother ’ s criminal hi story and imminent in carc eration , K.B. ’ s pa ssivity toward Mother ’ s behavior , and Mot her ’ s overall in ability to care for E. B
. 1 . Mother ’ s Drug Use Despite admitting to using illegal drugs while she wa s pr egnant with E.B. , Mother refused to su bmi t to a drug te st af ter deliveri ng E.B. at t h e hospital
. TDFPS later met with Mother at the hospital where E.B. was born , and Mother eventually

a greed to submit to a drug test the following day , on Decemb er 3 0, 2020
. M other did not show up f or her drug test that day. Approxi m ately one week after E. B. was born , Mother admitted to TDFPS that she did not submit to a drug test whe n E.B. was born b eca use she knew th e test results would be positi ve f or methamphetamines
. Mother then divulged that she had used methamp hetamine s just two days earlier

— sometime a round January 4, 2021
.

1 TDF PS abando ned all grounds for termina tion rai sed in it s pe t ition ex cep t for Subsections 161.001(b)(1)( N ) an d (O ).
2 Mother did not “ wi sh to testify ” at the d e nov o hearing and rested wi tho ut presenting any evidence.4 The very next day , Mother admitted that she had used metha mphetamines the ni ght before. Around the same time, Mother called TDFPS and asked why she had not been informed that E.B
. had di e d
. But E. B. was fine
. Mother exhibited “ errati c ” behavior , and according to a TDFPS investigator, Mother was n ot making any sense. Mother ’ s probat ion offi cer later reported tha t , although Mother was suppos ed to check in with him weekly , he h a d not seen her in approximately three months. He also relaye d that Mother ’ s drug

- test results from Septem ber 2020 were negative but that she had not subm itted t o dr ug testing since th en. When E.B. wa s approximately one week old , K.B. rep orte d concerns to the TDFPS investigator that Mother was using methamphetamines and that he did not want to communicate with her while she was “ like that. ” During TD FPS ’ s investiga tion , K.B. and his mother a g re ed to care for E.B. and to keep Mother away from E.B
. E.B
. remained in K.B. ’ s pos session until January 11, 2021, when K.B. wa s found deceased in his home and E.B. was removed by TDFPS
. Loca l l aw
e nforcement made TDFPS aware of K.B. ’ s dea th, and a TDFPS investigator immediately responded to the residence. Desp ite K .B. ’ s assurance tha t he would not allow any contact between Mother and E.B. , there was evidence that Mother had also been stayi ng a t the re sidence with E.B. When the TDFPS investigator arri ved at the home, Mo ther was present a nd appea r ed to be und er the influence of illegal dr ugs . Specifically, she could not spell her na me, she re peat edl y crawled back into bed while5 be ing questioned b y law enforcement, and she wa s “ very erratic. ” Moth er admitted to using mari juana with K.B. the night be fore but did not respond when qu estioned about me thamphetamine use. Further, M other was unable to provide TDFPS with any app r o pr iate care g ivers for E. B. at that time. 2 . Mother ’ s Criminal History When TDFPS first met with Mother at the hospital wher e E.B. was born , Mother told TD FPS t ha t sh e had a history of domestic violence with her ex

- boy friend and that she had been ar rest ed “ a few times ” for assault. Mot her then admitted that she viol ate d probation when she was arrested f or possession of marijuana a nd had been ordered t o go to an Interme diate Sanction Facility (ISF) for ninety days, be gin ning January 25, 2021. TDFPS also discovered that Mother ’ s c riminal history consist ed of s everal charges and convic tions for ass a ult

- and drug

- related offenses, i ncluding bod ily

- injury assault s , family

- member assault s , aggravated assault, aggravated assaul t with a deadly

we a pon , and possession of ma rijuan a. B . Mother ’ s Serv ice Plan With the goal of family reunification, a f a mily plan of service was prepared for Mother on February 8, 2021, with a target completion date of February 7, 2022. Mother did not p ar ti cipate in her service plan meet ing but wa s later provided a copy of the service plan to revi ew with her case w orker during an in

- person meeting
. Mother also signed receipt of her service plan while she was incarcerated on6 March 11, 2021 , wh ich was filed with the trial court
. Moth er ’ s requ ired services included par enting classes , i n dividual counseling, a psychological evaluation, and the complet ion of a drug assessment
. She was also ordered to complete sub stance abuse counseling, to attend N A /AA meetings, to participate in random drug screen s , to attend weekly vi s itations wit h E.B. once she was no longer incarcerated, and to provi de proo f of income and proof o f a safe and stable home envi ronment . Mo th er did not complete any of these services
. At the t ime of tr ial, Mother had not started any servic e s . Mother was incarcerated from approximately January 20 21 until November 2021
. During that time , Mother returned one parenting p acke t in September 202 1 and maintain ed c ontac t with her initi al case worker via mail
. Sh e also reported to TDFPS that she had attended “ daily group and therapy classes ” while incarcer ated. At tr ial, 2I N gage case manager Stephanie Pickrell 3 testified on behal f of TDFPS. Pickrell acknowledged t h at when a parent is in ca rcerated, it is mo re di fficult for that parent to complete t heir services. Spec ificall y, t he parent ’ s ability to compl ete psycholo gical services, to a ttend ind ividual counseling or substance abuse counseling , to complete a dr ug as sessment , to ob tai n stable in come or housing , and to have visitations with the child is limited while the parent is incarcerated. Ho wever, Mother ch ose not to parti cipate in any services when she was released f rom incarceration. After her re lease

3 Pickrell was assigned to Mother ’ s case around Sept ember 2021 or October 2021
.7 in Novem ber 2021, Mother ’ s contact with 2I N gage was i ncons istent and sporadic
. Pickrell testified that Mot her ma intained very little contact with h er , de spite her attempts to contact Mother at least nine time s in Nove mber 2021 and at least seven times in December 2021
. And wh en Mother would occa sionally contact P ickrell, she asked only about v isit ations with E
. B
. Mother ’ s behavior al so changed after she was released , a n d he r interest in E.B.

was inconsistent
. On November 1, 2021, the trial cou rt s igne d an Order for Me di ation , which was sched uled to occur a fter Mot her ’ s release. Althoug h she was no longe r incarcerated on the date of the mediation and was r equired to attend , Mother did not attend th e media tion. On No vem ber 17, 2021, Pickrell went to the address listed as Mother ’ s resid enc e to discu ss Mother ’ s service plan with h er . Mother was late for the meeting
. When P ickrell ha n de d Mother a copy of th e servic e plan, Mother handed it bac k and stated, “ I don ’ t want to be [E.B. ’ s] m other
. I don ’ t want my daughter; I don ’ t need this. ” Con fused, Pick r ell a sked Mother wh y she had changed her mind so quickly
. Mother respond e d, “ I can ’ t be the mom she needs; I can barely keep myself alive. I ha ve no home, no in come, and I don ’ t know how to be a mom. I love her , but
. . . I ’ m a ki d myself . I am not on my m edication. ” Mother also told Pickrell that she had “ superpow e rs ” and “ telek inesis ” and that she could “ move things with [her] mind. ” But m oments later, Mother asked Pickrell for a visitation with E.B. ; s he did not follow up with P i ckrell the next day regar ding the visitation
.8 A fe w weeks later , M other reached out to Pickrell to ask why she ha d not been able to visit E.B. yet. Pickrell agreed t o set up a visitation with E.B. if Mother would first sub mit to a drug test
. Mother agreed to the drug test , and Pic k rell arranged for Mother to go to the drug

- testing site. Mother no - called, no

- showed for th at appo intment
. Pic krell then attempted to set up another appointment for Mother on De cember 6, 2021 , but Mother again did not show up for the appo intment or otherw i se res p ond to Pick rell ’ s p hone calls or text messages. 4 Pick rell testified that she did no t have further contact with Mother after December 6, 2021
. Mother never at tended any visitations with E. B. Prior to Mother ’ s incarcerati o n , a visitation via Zoom bet ween Mother and E.B . had been scheduled
. 5 Mother went to the 2 I N gage office for the visitation but re f used to join the Zoom cal l because she b elieved she would be “ trapped ” in the call and s ent to the past or the future. This was the only visitation ever s cheduled with E.B
. Moreover, Pickrell testified that after Mother ’ s release , Mother as s erted

— approximately five to ten
t imes

— that she did not want to be E.B. ’ s mother and that sh e did not want to work h e r services. P ickrell confirmed that Mothe r had never started any s er v

ice s .

4 P ickre ll testified that Moth er had asked about v i sitations with E.B. on several occasions , and each ti me Pi c krell would agree to arr ange a visitat ion if Mother would submit t o a drug test
. Pickrell even offer ed Mot her tr a nsport ation to the drug

- testing location
. However, Mother would no t follow through with her appointments , and she n ever s ubmitted to a drug t est . 5 E.B. had tested positive for Covid

- 19 and had to quarantine with her foster parents in their home
.9 C . After Removal At the time of trial, E.B. had been in the care of a foster

- to

- ado pt fa mily fo r almost her entire life. E.B. ’ s foster parents expres s e d that they wanted to adopt E .B. and that they were licensed to move for ward wit h the adoptio n . Pickr ell testified that E.B. ’ s pla cement with her foster family ha d been a “ go od envi ronment ” for E.B. , who was very comfortabl e in her foster fami ly ’ s home and who had bonded with the family. She expressed that she did not have an y co nc erns reg arding E.B. ’ s em otional or physical well

- being in her placement and that E. B. was a n “ ext remely happy baby
. ” E.B. ’ s foster father testified that E.B. had been in his family ’ s care s ince E.B.

was just two weeks old and that Mother ha d never visit ed E. B. He and his wife , o n the other hand , loved E.B. and were v ery int ereste d in adopting her
. E .B. ’ s g uardian ad litem stated that she had observed E.B . in her foste r home and that her foster parents were “ very bonded ” w ith a nd devoted to E.B. According to the gua rdian ad litem, E. B. ’ s foster par ents ha d been g iving E.B. everything that Mo t her a nd K.B. had been u nable to prov ide to E.B. because of their drug use . Pickrell testified that it would be in E.B. ’ s best interest to terminate Mother ’ s parental rights and to allow E.B. ’ s f o ster p arents the opportunity to ad opt her
. The guardian ad litem likew ise recommended termina ting Mother ’ s parental rights so that E. B. could be adopted by h er foster parents
.10 II. Discussion On appeal, Mother contends the e videnc e is le gal ly and fac tuall y ins ufficient to

s u ppo rt the trial court ’ s findings that she c onstructively a bandoned E.B. , that she failed to comply with her s er vice plan, and that termination of her parental ri ghts i s in E.B. ’ s best interest. See id. § 1 61.001 (b )(1 )(N), (O ) , (b) (2)
. A . Standard of Review For a trial court to terminate a paren t

– child relationship, the party seeking termination

— here , TDFPS

— must prove two elements by clear and convincing evidence: ( 1) that the parent ’ s actions sa tisfy one gr ound listed in Fa mily Code S ect ion 161.001(b)(1); and ( 2 ) that terminati on is in the child ’ s best interest. Id. § 161.001(b); In re Z.N. , 602 S.W.3d 541, 545 (Tex. 2020)
. Evidence is clear and convinci ng if it

“ will pr oduce in t he mind of the trier of fa ct a firm belief or conviction as to the t ruth of the alle gations sought to be established. ” Tex. Fam. Code Ann. § 101.007; Z.N. , 60 2 S.W.3d at 545
. To determine whether the evidence is legally sufficien t in parental

- t er mination

c ases, we look at all the e vi d ence in the light most favorab le to the challenged find ing to determine w hether a reasonable factfinder could form a firm belief or conviction that the finding is true. Z.N. , 602 S.W.3d at 545
. The fa ctfinder may dr aw inference s, but they must be reas on ab l e and logical. Id. We assume t hat the f actfinder settle d any evidentiary conflicts in favor of its finding if a reasonable factfinder could have done

so. Id. We disregard all evidence that a reasonabl e factfinder co ul d have dis believed,11 and we conside r un d isputed evidence even if it is contrary to the finding. Id. ; In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2002). That is, we consider evidence favorable to the finding if a reasonable factfinder could, and we disregard co nt rary evide nce unless a reasonable fa ct f inder could not. In re J.P.B. , 180 S.W. 3d 570, 573 (Tex . 2005)
. The factf inder is the sole judge of the witnesses ’ credibility and demeanor. In re J.O.A. , 283 S.W.3d 336, 346 (Tex. 2009)
. We must per form “ an exacti ng review of the entire record ” in d et er m ining the factual sufficiency of the ev idence supportin g the termination of a parent

– child relati onship. In re A.B. , 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due deference to the factfin der ’ s finding s an d do not s upplant them with our ow n. I n re H. R.M. , 209 S.W.3d 105, 10 8 (Tex. 2 006). Here, w e r eview the whole re cord to decide whether a factfinder could reasonably form a firm conviction or belief that TDFPS proved the specific grounds fo r termination u nd er Family Code Subsections 161.001 (b )( 1 )(N) and (O) and that t he term ination o f the parent

– chi ld relationship

wo uld be in the child ’ s best interest. Tex. Fam. Code Ann. § 161.001(b); In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002)
. If the factfi nder reasonably co uld form s uch a firm conviction or b el i ef, then the evidence is factu ally suff icient. C.H. , 89 S.W.3d at 18

– 19
. B . Statutory Termination Grounds In her first two issues, Mother contends the evidence is legally and factually insufficient to support the t rial court ’ s finding that Mother com mi tt e d either of the12 alleged statut ory g rounds for terminati on of her parental rights
. See Tex. Fam. Code Ann. § 161.001(b)(1)(N), (O). The trial court wa s required to find only one statutory gr ound to t erminate Mother ’ s parental ri ght s. See In re A.V. , 113 S. W.3d 355, 362 (Tex. 2003). For the

reasons set out below, we conclude that the evi dence is legally and factually sufficient
to support the constructive

- abandonment g round. S ee Tex. F a m. Code Ann. § 161.001(b)(1)( N). 1 . Subsect io n 1 61.001(b)(1)(N) Under Sub section (N), the tri al court m a y t erminate a parent ’ s rights i f i t f i nds by c le ar and co n vincin g evidenc e that th e parent has ( N ) co nstructively abandone d the child who has been in the perma nent or temporary managing con servat or shi p of [TDFPS] for not less than si x months , an d: (i) [ T D FPS ] has made reaso nable effort s to return the child to the parent; (ii

) the parent has not regularl y visited or maintained significant conta ct with the child ; and (iii) the parent has demonstr at ed an inability to provide t he child with a sa fe environm e n t[. ] I

d. 2 . Ana lysis Mother does not disput e that E .B. was in t he te mporary managing conservatorship of TDFPS for more than six months. Rath er , s he argues TDFPS13 failed to prove (1) that it made rea sonable efforts t o return E.B. to Mother , either through its unlawful and defe ctive service plan or after her relea se from incarceration ; (2) that Mot her failed to mainta in significa nt contact with E .B. as f ar as she w as permitted ; and (3) that Mother demo nstrated an inability t o p rovide E.B. with a safe envi ron ment. See id. Before we begin ou r a nalysis , we note th at “ [w]hen services are court ordered, the parent bears the burd en of complying w ith them. ” In re M.S. , No. 02

- 21

- 00007

- CV , 2021 WL 26541 4 3, at *1 4 (Tex. App. —Fort Worth J une 28, 2 021, pet. de nied ) ( mem . op. on reh ’g) ; see K.C. v. Tex. Dep ’ t o

f Fam. & Protective Servs. , No. 03

- 17

- 00184

- CV, 2017 WL 3585255, at *2 (Tex. App.

— Austin Aug. 17, 2017, no pet. ) (mem. op.) ; In re B.L. D.

- O. , No. 13

- 16

- 00641

- CV, 2017 WL 92948 6, at *4 (Tex. App.

— Corpus Christi

– Edin b urg Mar. 9, 2017, no pet.) (mem. op.); In re P.N.M. , No. 11

- 08

- 00080

- CV, 2009 WL 714190, at *3 (Tex. App.

— Eastland Mar
. 19, 2009, no pet.) (mem. op.)
. If a parent is confused about the requirements of a service plan or believes the service plan is unfair, the parent may file a motion at any time to request the court to review the plan. M.S. , 2021 WL 26541 43, at *14; see T ex. Fam. Code Ann. §§ 263. 104 (c) , 263.405 (c)
. Mother filed no such motion.

a . Re asonable Efforts Mother contends TDFPS cannot show that it implemented a lawful service plan or that Mother was given a reasonable opportunity to comply with her service pl an. Mothe r also ass er ts that TDFPS ’ s efforts after Mother ’ s releas e fro m14 incarceration are in sufficient to p rove “ reasonable efforts ” due to Mother ’ s inability to comprehend the required services, TDFPS ’ s refusal to a llow Mother to visit E .B., TDFPS ’ s failure to obtain recor ds related to Mother ’ s progress while in carcer at ed, and TDFPS ’ s failure to out l ine law f ul services while Mother was inca rcerated. When determining whether TDFPS made reasonable efforts, we focus on its effo rts, not the parent ’ s. M.S
. , 2021 WL 2 6541 43, at *1 3 ; In re D.G. , N o. 02

- 17

- 00332

- C V, 2018 WL 547787, at *4 (Tex. App.

— Fort Worth Jan. 25, 2018, no pet.) (mem. op.)
. Pre paring and administ ering a service plan for the parent , standing alone, constitute s ev idence that TDFPS made reas onable ef f

or ts to return the child to the pa rent. In re J .A. , No. 01

- 21

- 00606

- CV, 2022 WL 802982, at *4 (Tex. Ap p.
— Houston [1st Dist.] Mar. 17, 2022, no pet.) (mem. op.); M.S. , 2021 WL 2654143, at *1 4; In re M.R.J.M. , 280 S.W.3d 494, 505 (Tex. App.

— Fort Wo rth 2009, no pet.) (op. on reh ’ g) ; In re K.M.B. , 91 S.W.3d 18, 25 (Tex. App.

— Fort Worth 2002, no pet.)
. Because this element focuses o n TDFPS ’s efforts, the fact tha t Mother was incarcerated is not dispositive
. See In re Z.F.S. , No. 04

- 20

- 00489

- CV, 2021 WL 603372, at *3 (Tex. App. —S an Antonio Feb. 17, 2021, no pet.) (mem. op. ) (“It is undisputed that [ the parent] wa s incarcerated approximately th ree weeks after [TDFPS] explained the service plan to him. However, in reviewing whet her [TDFPS] made a reasonable effort, we must focus o n [TDFPS ’s] actions, not [the p arent ’s ] .”)
. Th e trial court heard te stimony that a plan of service was developed for M other and that she received a copy ; th at Mother ’ s previous case worker m et with Mother to15 revie w the service pla n w ith h er ; that Mother ’ s pr evious ca se worker maintained contact with Mother while she was incarcerated; th at TD FPS requested an extension for Mother to fully engage in services; that Mother was given an extension because she wa s incarcerated; that P ickrel l met with Mother after her release to review her servic e plan with her ; that mediation was scheduled , which Mo ther was informed of but did not atten d ; that Pickrell agre ed to set up Mother ’ s visitat ions with E.B
. if Moth er would take a drug test ; that Pickrell set up multiple drug

- testing a ppointments for Mother even after Mother no - called, no - showed ; that Pic krel l offered to drive Mother to the d ru g - t esting site ; that Pickrell a ttem pted to contact Mother severa l times in Nove mber 2021 and De cember 2021 ; that P ickrell physical ly went to the address provided by Mother ’ s attorney to try to f ind Mothe r; a nd that Pickrell n eve r gave up trying to help Mother compl ete her ser vices
. TDFPS ’ s efforts must be reasonable, not ideal. M.S. , 2021 WL 2654143, at *13 (citing In re M.V.G. , 440 S.W.3d 54, 61 (Tex . App.

— Waco 2010, no pet.))
. We hold that the evidence is legally a nd factually sufficient to support t he t rial court ’ s finding that TDFPS made reasonable efforts to return E.B. to Mother. See In re J.S. , No. 02

- 19

- 00231

- CV, 2019 WL 5655254, at *5 (Tex. App.

— Fort Worth Oct. 31, 2019 , pet . denied ) (mem. op.) ( upho lding t ri al court ’ s finding of TDFPS ’ s reason able eff orts wh ere TDFPS created a serv ice plan for the parent and attempted to locat e her but could not ) ; C.G. v. Tex. Dep ’ t of Fam
. & Protective Servs. , No. 03

- 18

- 00852

- CV, 2019 WL 3367524, at *7 (Tex. App.

— Au st in Ju ly 26 , 2019, no pet.) (mem. op.) (“The16 cas ewor ker persi sted in trying to set up a ppointments and assist [fath er] with work on his parenting service plan, and a lack of communication was not [TDFPS ’ s] fault .”); In re G .T. , No. 02

- 17

- 00279

- CV, 2017 WL 6 759 03 6, at *4 (Tex. App.

— Fort Worth Dec. 28 , 20 17, no pet .) (mem. op.) (“A reasonab le factfinder could form a firm conviction or belief that [the minor parent ’ s] running away [ shortly after receiving the service plan ] did constitute an unwillingness t o c om plete the service plan as well as a rejecti on of th e services offered in the p lan.”); Gamez v. Tex. Dep ’ t of Fam
. & Protective Servs. , No. 03

- 09

- 00190

- CV, 2009 WL 4456150, at *7 (Tex. App.

— Austin Dec. 1, 2009, no pet.) (me m. op.) (concluding in dict a t ha t TDFP S ’ s att empts to loca te the parent and t o provide services to her while the case was pending supported the “reasonable efforts” element of constructive abandonment). b . Regular Visits or Significant Contact Mother as serts that the trial court prohi bi te d visit s with E.B. whi le Mother was incar cerated a nd argues that , after she was released, TDFPS prevent ed her from seeing E. B. by unilate rally requ iring that Mother submit to a drug test before visiti ng with E.B. T hus, Mother a sserts, TDF PS cannot prov e that Mother failed to mai ntai n significa nt contact with E.B. It is undisp uted that Mother had not seen or visited E. B. since she was two weeks old. While the trial cour t may have prohibit ed visitations while Mothe r was incarcerated, Mother ’ s ow n actions

— both before and after incar ceration

— prevente d her from visiting E.B
. Before she was incarcerated, Mother refused to attend the17 scheduled Zoom visi tation with E.B. at the 2 I N gage offic e . After she was rel eased, Mother did request visit s with E. B
. , which Pi ckrell tol d Mother she would arrange if Mothe r would first submit to a drug test
. 6 And Pickrell set up multip le dru g - testing

a ppointmen ts for Mother ; she even of fered to drive Mother to the drug

- testing site , but Mother repeatedly no - called, no - showed
. Des pite Pickrell ’ s effort s, Mother failed to sub mit to a drug test , even though doing so meant sh e could vi si t E
. B. Addi ti onally, Mothe r ass erted

— approximately five to ten t imes

— that she did not want to be E.B. ’ s mother , that she could not take care of E.B., and tha t she did not want to work her service s. We h ol d that the evidence is le g ally and factually sufficient to support the t rial
court ’ s finding that Mother had not regularly vis i ted or maintained significant contact with E.B. See M.S. , 2021 WL 2654143, at *15 ( upholding tr ial cou rt ’ s finding that the par en t failed to visit or maint ain significant contact with the child when ev idence showed that the parent ’ s contact w as “ sporadic and chaotic ” ); J.S. , 2019 WL 5655254,

6 Mo ther asserts TDFPS ’ s drug

- testing prerequisite w as not part of the tri al court ’ s order and was there fore n ot a condition of visitation
. However, the service plan requ ired that Mother “ submit to rand om drug screens on the day requ ested
. ” In other words, Mot her was required to submit to drug testing when requested by TDFPS
. Th e r eason she d id not visit E .B. was not TDFPS ’ s fault but rather her own failure (and apparent unwillingness) to comply with her serv ice plan. See I n re I.D. , No. 05

- 21

- 00244

- CV, 2021 WL 4236878, at *5 (Tex. App.

— Dallas S ept. 17, 20 21 , pet. denied) (“[W]e con cl ude that [ TDFPS] did not unreasonably thwart Father’s possession and access, because submi tting to drug testing to regain access to the childre n was within his control” and also holding that S ubsection (N)(ii) has no volu ntarin es s component, i.e., und er th at section ’s plain language, it does no t matter why the parent did not regularly visit or maintain contact with the child )
.18 at *6 (upholding constructive

- abandonment fi ndin g when the evidence showed that th e mo ther h ad not been a consistent figure in the children ’s lives, th at she chose not to attend a meeting with her case wor ker concerning visitation, and that she expressed an intent to voluntaril y give up her parental rights to the children) ; I n r e T.T. , No. 1 1

- 18

- 00291

- CV, 2019 WL 1716416 , at *2

– 3 (Tex. App.

— Eastland Apr. 18, 2019, no pet.) (mem. op.) (upholding constructive

- abandonment finding when evidence showed that the father had not seen his child for years and that he did not try to
contact t he chi ld wh ile the case was pending , des pite being informed how he might do

so ) ; In re K .G. , 350 S.W.3d 338, 355 (Tex. App.

— Fort Worth 2011, pet. denied ) ( holding the tr ial court could have rea sonably found that the parent f ailed to regular ly visit or maintain s ignif i c an t contact with the child when the parent did not accept TDFPS ’ s offer to ac commodate visitations around the parent ’ s schedule )
.
c . Safe E nvironment Mother asserts

— vaguely and without supporting authority

— th at because Pickrell did not se e inside Mother ’ s home a nd th erefore d id n ot have an opinion as to whether the home was sa fe for E.B. , and because T D F PS implemente d an unlawful service plan, TDFPS cannot prove that Mother presented an inability to provide E. B. with a safe environm e nt. Evidence a fact find er may consider in determinin g whether a parent has sh own that she cannot provide her child wit h a safe environment includes the parent ’ s failure to participa te in services and to visit the child, the parent ’ s lack of stable housing or19 stable emp loyment, t h e par ent ’ s past substance ab use, and the actions that led to the initial removal. J.S. , 2019 W L 5655254, at *6; C.G. , 2019 WL 3367524, at *7 ; A.K. v. Tex. Dep ’ t of Fam
. & Prot ective Servs. , No. 03

- 14

- 00450

- C V, 201 4 WL 6612609, at *4 (Tex. App.

— A ustin No v. 21, 2 014, no pet.) (mem. o p.); In re M.R. , J. , No. 07

- 13

- 00440

- CV, 2014 WL 2591616, at *5 (Tex . App.

— Amarillo May 9 , 2014, no pet. ) (mem. op.)
. Pickrell testified that Mother failed to participate in her se rvices
. Both Pickrell and E .B
. ’ s foste r father testified tha t Mother never visit ed E. B. and had not seen her since she was two weeks old. Pickrell also testified that Mother had not shown an abilit y to keep s table ho using or stable emplo yment and had not b egu n to work her services
. De spite sev eral attempts, Pickrell was unab le to see the inside of Mother ’ s home
. Additionally, t he trial court heard evidence that Mot her was incarcerate d for most of her case , that sh e had issue s with past substance abuse , and that she had adm itted to using illegal drugs since her re leas e . Mother told Pickrell on several occasions that she di d not want to be E. B. ’ s mother and that sh e could not take care

o f E.B. Fina lly , E.B. ’ s father is decea sed, and Pickrell testified that the re ar e no living relatives that would be a suitable placement for E. B. We hold that the evidence is lega ll y and factually sufficient to support the trial

cour t ’ s finding that Mother demonstrated sh e could no t provide E .B. with a safe, stable enviro nment. S ee J.S. , 2019 WL 56552 54, at *6 (uphol ding cons tructiv e abandonment fin ding wh en the parent failed to stay in contact with the case worker,20 f

ailed to be gin s ervices, failed to show an ability to keep stable housing or stable employment, and had a h istor y o f incarceration related to he r drug us e ); In re G.P. , 503 S.W.3d 531, 535 (Tex. A pp.
— Waco 2016, pet. denied ) ( “ By not providing [TDFPS ] with any information about her living or employment cir cumstances , . . . refusing to take required drug tests, a nd faili n g to even maintain contact w ith [the child], the tri al court could have reason ab ly concluded that [the parent] failed to prov ide [the child ] with a safe env ironment. ” ) ; In re T.M. , No. 02

- 09

- 0014 5

- CV, 2009 WL 5184018, at *5 (Tex. App.

— Fort W orth D ec. 31, 2009, pet. denied ) (mem. op.) ( “ [T]he evidence establ ishes Father ’ s inability t o provide the children with an y environment
. . . much less a s afe environment
. . . . ” ). 3. Conclusion We hold that the evide nce is legally and factually sufficie nt to suppor t the trial
court ’ s finding that Mothe r constructiv ely abandoned E. B
. Accordingly, w e over rule Mother ’ s issue regard ing termination under S ubsection (N). See Tex. Fam . Code Ann. § 161.001(b)(1)( N). Because a finding of only one of the ground s a ll eged under Sectio n 161.0 0 1(b)(1) is sufficient t o support termination , A.V. , 113 S.W.3d at 362 ,
we need not reach Mothe r ’ s issue rega rding terminati on un der Subsection ( O)
. See Tex. Fam. Code An n . § 161.001(b)(1)(O)
. C . Be st Interest In Mother ’ s final issue, sh e cha llen ges the sufficiency of the evidenc e supporting the t rial court ’ s determination that termination of Mo ther ’ s parental rights21 i s in E.B. ’ s best interest. For the r easons set out below, we overrule Mother ’ s i ssue
re lated to the trial court ’s best

- interest finding. 1 . Best - Interest Factors A lt h ough we genera lly presume that keepin g a child wi th 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 i s child

- centered, focusin g on the chi ld ’ s well

- bei ng, safety , and development, In re A .C
. , 560 S.W.3d 6 24, 631 (Tex. 2018). In determining whe ther evidence is sufficient to support a best

- interest finding, we review the entire record. In re E. C .R. , 402 S.W .3d 239, 250 (Tex. 2013). Evidence pr obative of a child ’ s be st interest may be the sam e e vidence that i s probative of a S ubsection (b) (1) grou nd. Id. at 249; C.H. , 89 S.W.3d at 28 ; see Tex. Fam. Code Ann. § 161.001( b)(1), (2)
. We also consider the evidence in light of n onexclusive factors tha t the factfin der may ap ply in determining the chi ld ’ s best interes t: (A) th e [ child’s ] desires
. . . ; (B ) the [ child’s ] emotional and physical needs [,]
. . . now and in the futu re; (C) the emotional and physical danger to the child now and in the future; (D) the paren tal abilit ies of the individuals see ki n g custody; (E) the programs available to assist t hese individuals to promote the [ child’s ] best interest
. . . ; (F) the plans for the child by these individuals or [ , if applicable, ] by the ag ency seeking custody;22 (G) the stabi lity of the home or propos ed placement; (H) the [ parent’s ] acts or omissions
. . . indicat [ ing ] that the existing parent

– child relationship is not a proper one; and (I) any excuse for the [ parent’ s ] acts or omissions
. Hol ley v. Adams , 544 S.W.2d 367, 371

– 7 2 (Tex. 1976) (citations o mi t ted) ; see E.C. R
. , 402 S.W.3d at 249 (stating that in reviewing a best

- interest finding, “ we consider, among other evidence, th e Holley factors ” (footnote omitted)); In re E.N.C. , 384 S.W.3d 79 6, 80 7 (Tex. 2012)
. These factors a re not exhaustive, and som e l isted factors may not apply to some cases. C.H
. , 89 S .W.3d at 27. Furthermore, undisputed evidence of just one factor may be s ufficient to support a finding that termi nation is in the child ’ s best interes t. Id
. On the other han d, the presence of scant e vi d ence relevant to each factor will not support suc h a finding. Id
. 2 . Analysis Mother challenge s cer tain of the best

- intere st f actors . She b roadly asserts that TDFPS fa iled to prove that termi nation of her parental rig hts i s i n E.B. ’ s best interest bec a use only conclusory statements were offered as pro of and because, in part, TDFPS implement ed an “ unlawful ” service plan for Mother
. We disag ree .
a. E.B . ’ s Emotional and Physic al Needs E.B . was removed from Mo ther ’ s car e when she was on ly t wo weeks old and had been with h er foster parents for most of her life. Pickrell testified that E.B. ’ s placeme nt with her foster parents had been a “ go od environment ” for E.B. and that23 E.B . an d her foster pare nts had bonded. When E.B w ent to live with her foster parents, s he had experienced developmental issues with her gross motor skills
. E.B. was put in physical therapy and h ad improved significantly while in the care of her foster pa rents . And E.B. ’ s fost er parents expressed t hat th e y love d E.B. , that t hey wanted to adop t her, and that they were licensed to adopt
. In contra st, Mother had not seen E.B. since she was two weeks o ld. A lthough Mother occasionally requested visitations with E .B., Mot her would not submit to the drug testing re quested by TDFPS in order for her t o do so. Moreover, Mother vo i ced several times that she did not wan t t o be E.B. ’ s mother and tha t she could not take care of E.B
. The trial c ourt was en titled to view this factor as support ing a best

interest finding. b. Emotional and Phys ical Danger to E.B. Now and in the Future On appeal, Mother critici z es TDFPS ’ s concerns
— b ase d , in part, on Mother ’ s
s tate ments 7

— that she may hav e had a mental i lln e ss . She argues that TDFPS f ailed to establish that Mother ’ s statements or potential mental instability w er e dangerous to E.B. But ev en without considering these statements o r potential mental i nstability , there is other ev iden ce in the record t hat supports this factor. Mother exp licitly told Pickrell

— several times throughout the case

— that sh e di d no t want to b e E.B. ’ s
7 Mother sta te d that she could barely keep herself alive and that she was “ not on [her] medication. ” She a lso told Pickrell that sh e had “ s uperpowers ” and “ telek inesis ” and tha t she could “ move things with [her] mind. ” And Mothe r refused to attend vi sits with E.B. or court proceedings via Zoo m because she believ e d she would get
“ trapped ” i n Zoom.24 mother and that s he could not take care of E.B
. A dditionally, a home with Mother would likely i nclu de drugs and , po tentially , violence. As note d above, Mother ’ s
c riminal history con sist s of s everal char ges and c onvic tion s for assault

- and drug

rel ated offenses
. Mother was incarcera ted for most of the case because she had violated her probati on w hen she was arrested for possession of marij uana. Further, Mother admitted t ha t she had used illega l drugs since being r elease d from incarceration in No ve mb er 2 021. The trial court was en titled to infer from Mother ’ s past conduct that she might commit similar acts in the future. See In re C.B. , No. 02

- 22

- 0021 2

- CV, 2022 WL 15076 123, at * 3 (Tex. App.

— Fort Wort h Oct. 27, 2022, no pet. h. ) (mem. op.) ( inferr ing f rom the parent ’ s past conduct that she may commit similar acts in t he fu ture ) ; A.S. v. Tex. Dep ’ t of Fam. & Protective Servs. , 394 S
. W.3d 703, 71 5 (Tex. App.

— El Paso 2012, no pet.) ( “ The record support s an inference that [the parent ’ s] course of miscon duct before and throughout this case would continue into the future. ” ) ; see al

so In re A.J.M. , No. 04

- 17

- 00681

- CV, 2018 WL 1511824 , at *6 (Tex. Ap p.
— San Antonio Mar. 28, 2018, pet. denie d) (mem. op.) (holding that father ’ s “ criminal conduct is clearl y evid ence of his unwillingness to protect [the child] and to put [the child ’ s] needs above his o wn destructive life choices”)
. Thi s fa ctor supports the trial
court ’ s findin g that termination of Mother ’ s parental ri ghts is in E.B
. ’ s best interest.25 c. St abilit y Ch ildren need long

- term safety , stability , and permanency ; providing for a child ’ s phy sic al and em otional needs is of para moun t importan ce. C.B. , 2022 WL 150761 23, at * 3 ; In re G
. V., III , 543 S.W.3d 342 , 3 50 ( Tex. App.

— Fo rt Worth 2017, pet. de nied); s ee als o Tex. Fam . Code Ann. § 263.307(a) ( “ [T]he prompt and permanent placement of the chi ld in a safe environment is presu med to be in the child ’ s best interest. ” )
. In her appellate brief, Mother ostensibly admits that her in carceration impeded he r abil ity to de monstrate stability. She a ssert s that she could have demonstrated a higher level of sta bil ity if TDFPS had “ actually implemented a lawful service plan
. ” However, Mother was inca rcerat ed because of her own actions
. It i s diff icult to excuse Mother for her l ack of stability based on her incarceration when tha t incarceration was the consequenc e o f her o wn choices. See C.B. , 2022 WL 15076123, at * 4 ; J.O.A. , 283 S.W.3d at 346 (considering parent ’ s history of irrespons ib le choices in best

- interest determination). Additionally , Mother ’ s past conduct does not bode well for her a bil ity to provide a stable home for E.B., and nothing in the record indicates that Mother w ill have a fut ure ability to provi de a st ab le home. See C.B. , 2022 W L 15076 123, at *3; In r e V.V. , 3 49 S.W.3d 548, 558 (Tex. App.

— Houston [ 1st Dist.] 2010, pet. deni ed) (en ba nc op. on reh ’ g) (opining that a parent ’ s frequent incarceration leaves a child

w

ithout a stabl e environment). Inde ed, Pic kr ell testified that she was unabl e to determine w hether Mo ther had a permanent address or was homeless, whether26 Mother was emp loyed o r had any income, or whether Mother was able to provide a safe and stable environ ment for E.B. In cont rast, E .B. ’ s foster pa rents had provided a “ good environm ent ” for E.B., who was described as an “ ex tremely happy baby ” while in the ir ca re . E.B. ’ s guardian ad litem opined that E.B. ’ s fos ter parents had been g i ving her ev erything that her biolog ical parents could not because of their dr ug use . Finally, E.B. ’ s fos ter parents indicated tha t the y love d her , that they want ed t o ad opt her, and th at they were licensed to adopt
. The trial cour t could have found that Mother ’ s inab ilit y to provide stability for E.B. suppor te d a finding t hat termination of M other ’ s rights i s in E.B. ’ s best i nte rest . d. Acts or Omiss ions Indicating Whether the Parent – Child Relationship is a Proper One, and Any Ex c uses for Those Acts or Omissions M other ’ s criminal history , incarceration , a nd complete lac k of interaction with E.B . s upport s the tri al court ’ s findi ng that reunification with M other would not be in E.B. ’ s best interest. See C.B. , 2022 WL 15076123, a t * 3; In re J.M.G. , 608 S.W.3d 51, 57 (Tex. A pp.
— San Antonio 2020 , pet. denied) ( asserting that ab sence duri ng early years of child ’ s life due t o incarc era tion threatens the ch ild ’ s emotio nal well

- being and indicates that the parent ’ s relations hip with the chil d i s not a proper one ). While Mo ther acknowledge s respon sib ility for her incarcer ation , i t is difficult to e xcuse Mother for her failing s based on her incarceration when tha t in carceration was because of her own choices. See C.B. , 202 2 WL 15076123, at * 4 ; J.O.A. , 283 S.W.3d at27 346 (considering parent ’ s history of irres pon s ib le choices in best

- interest determinat ion). Additionally, Moth er ’ s failure to vi sit with E.B. or participate in s ervices when she was not inc arcerated is proba ti ve of the fact that her relati onship with E. B. is not a proper one. See C.B. , 2022 WL 15076123, at *3 ( stating the par en t ’ s failure to

ex ercise visitation righ ts prior to inca rceration and her failure to pay child support is probati ve ) ; Dowell v. Dowell , 276 S.W .3d 17, 22 (Tex. A pp.
— El Paso 2008, no pet.) ( holding a parent ’ s failure to exercise visitation rights is rel eva nt to the best

- interest issue)
. Mother ’ s ex cuses , presu ma bly, for faili ng to co mply with her service p lan are based on her incarceration and TDFPS ’ s alleged failure to implement a lawful s erv ice plan for Mother. But M other fails to expl ain why she did not begin or even attempt to participate in service s af ter sh e was re leased . Mother ha d not seen E.B. since sh e was two weeks old, but Mother does not explain why she would no t submit to a drug test if it meant seein g he r child again
. Nota bly, Mother does not clarify why she had previ ously to ld Pickrell that s he did n ot want to be E.B. ’ s m o t he r and that she could not take care of E.B. She provi des no excuse for why she did n ot maintain sufficient contact with TDFPS af ter her release , despite Pickrell ’ s continued attempts to reach her
. And Mother does not explai n why sh e chose not to particip ate in the case aft er her release, why she did not appear for mediation, or wh y she di d n o t appear for trial
.28 III. Conclusion Having overruled Mother ’ s issue re garding termi nation under Subsection 161.001(b) ( 1)(N) and Mother ’ s cha llenge to the trial court ’ s best

- interest finding, we

a ffirm the trial co urt ’ s order t erminating Mother ’ s parental rights to E. B
. /s/ Wade Birdwell Wade Birdwell Justice Delivered: November 23, 2022