## In the Court of App eals S econd Appell ate Di stric t of Texas

at Fort Worth

___________________________ No. 02

- 23

- 00038

- CV

___________________________

On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231

- 706172

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

### I N THE 

### I NTEREST OF 

### Z.G., A CHILD2 MEM ORANDU M OPINION I. I NTRO DUCTIO N In this appeal, Appellant F. S. M. (Father) and Appellant C.G. (Mother) appea l the trial court ’ s order terminating their respective parental rights to their child Z.G. (Zoe y). 1 The trial court found that the Department of F amily and Pr ote ctive Serv ices ( the Department) ha d proved three conduct

- based grounds for termination against Father and four conduct

- based grounds against Mother and that termination of their respective parental rights was in Zoey ’ s best interest. See Te x. F am . Code Ann. § 161.0 01( b)( 1) (D), (E) , (O), ( R) , (2). In his sole issue on appeal , Father contends that the evidence is legally and factually insufficient to support the trial court ’ s best

- interest finding. Mother ’ s court

- appointed atto rney filed an Ander s brie f, st ating that he did not fin d any legally nonfrivol ous grounds constituting error. Because legally and factually sufficient evidence supports the trial court ’ s best

- interest finding with respect to the terminat

ion of Father ’ s par ental rights a nd because Moth er ’ s appeal is frivolous,

we will affirm the trial court ’ s termination orde r . I I . B ACKGROUND A. Zoey ’ s Birt h and R emoval Zoey was born in September 20 21

. M ot her teste d positive for methamphetamin e s throughout her p regnan cy , and Mother al so tested positive for

1 To protec t her identity, we use alias es to refer to the chi ld and her brother

. See Te x. F a m. Cod e An n. § 10 9.0 0 2 ( d ); Tex

. R. Ap p . P. 9.8 (

b)(2)

.3

methamphetamines when she delivered Zoey at the hospital

. Zoey ’ s meconium test ed positive for methamphetamines and marijuana. Nidra Jones, an investigator for the Depart men t , received a re ferral from the ho spital regarding Zoey o n the date of Zoey ’ s birth. Mother admitted to Jones that she had used methamphetamines during her pregnancy, although Mother denied

me thamphetamine use during the last five months of the pregnancy. Father told Jones that he did not know what methampheta mines were, although he acknowledge d that M other used methamphetamines

. Father admitted t hat he had previously tested positive for methamphetamines , stating that tho se test resu lts had been positive due to his being around Mo ther. Jones also learned that Zoey had a brother , R. S. G. (Reid), who had tested pos itive for methampheta mine s following his July 2020 birth. 2 Three days after Zoey ’ s birth, s he was removed from Fathe r ’ s and Mother ’ s care and placed into a foster home w here R ei d was stay ing

. B. T he Events Following Zoey ’ s Removal 1. Father ’ s Service Plan and P ositive Drug Tests Reba Shaffer, a perman ency specialist employed by Ou r Community Our Kids ( OCOK), 3 testified that , following removal, the D epartment put a service pla n in

2 Father ’ s and Mother ’ s respective parental rights to Reid were terminated in Augu st 2021.

3 “ OCOK is a pri

v ate provider of community

- based care that contracts w ith the Department to provide foster care case manage men t, kinship, and family reunificatio n services in parts of the state, including Tarrant County. ” In re T.D. , No. 02

- 22

- 00215

-4

pla ce for Father

. Father was asked to complete parenting classes, to pa rticipate in individual counseling, and to submit to random d rug te sting. Shaffe r testified that Father completed the parenting classes and the individual counseling. As to the random drug testing, F ather ’ s hair tested po si ti ve for methamphetamines in April , May, June , September, October, and N ove mber 2022

. Shaffer requested that Father sub mit to drug testing in December 2022, but Father did not submit to the test. At trial, Father denied ever havi ng us ed metham phetamines , but he had no explanation for his positiv e t est results

. In th e past, Father had told the Department that his positive resu lts were due to being around Mother. Mother testified , however, that Father was never present when she us ed methamphetamines , and F ather testified that he had ne ver seen M other use drugs. Moreover, Mother stated that she d id not use drugs in the family ’ s home, explaining that she went outside to use drugs. As to Father ’ s drug use, Mother told Shaffer that she was concerned t ha t F ather was using metham phetamines, although Mother indicated that Father was not using methamphetamines in her presence. At trial, Mother stated that she ha d n ever seen Father use drugs , although she also said that Father occasional ly behaved in the manner of s o meone who was using drugs.

CV , 2022 WL 114830 54, at *3 n. 9 (Tex. App.

— F ort Worth Oct. 20, 2022, pet. denied) (mem. op .).5

2. Mother ’ s Service Pla n and Pos itive Drug Tests Shaffer testified that , following removal, the D epartment put a service pl an in pla ce for Mother

. Mother was asked to complete a d rug assessment , par enting cla sses, Narcotics Anonymous classes, and in dividual counseling

. S he was also asked
to participate in random drug testing and to engage in inpat ient drug treatment

. Shaffer testified that Mother did not compl ete any of her serv ices. Mother a lso test ed positive for methamphetamines in October and November 2021, as well as January, February , March , April, July, and September 2022. Mother test ed positive for marijuana in Febr uary , Ma rch, April , July , and September 2022

. 4 At trial, Mother admi tted to having drug problems and stated that she had last used methamphetamine “ a week or two ” before trial. Father testified that he h ad never discus sed Mothe r ’ s methamphetamine addiction with her, noting , “ [I] t ’ s hard to understand because she ’ s an addi ct and I am not, so I just don ’ t understand it. ” 3. Zoey ’ s Placement with the Foster Family Following removal, Zoey was ini tia lly placed in a foster home with Reid. Thereafter, Zoey and Reid were sent together to a different foster family that ad opte d Reid

. Apart from Zoey and Reid , t hat foster family consists of a foster father, a foster mother, and two fo ster siblings (t he Fos ter Family). Shaffer testified that Zoey and Reid we re “ extremely bonded , ” noting that the two were “ very friend ly with one

4 Shaffer requested that Mother su b mi t to drug testin g in N ovember and December 2022, but Mother did not submit to th ose test s .6

another ” and that Reid shared well with Zoey and showed concern for her

. Shaffer also tes t if ied that the Fos ter Fa mily had been able to meet Zoey ’ s emotional, physical, developmental, educational, and medical needs , and Shaffer anticipated that they woul d continue to meet those needs in the futur e. The Department ’ s permanency plan was fo r Zo ey to remain with the Foster Family and to be ultimately ado pted by the Foster Family. C. Procedural Background In its petition, the Department sought termination of Father ’ s parental rights as to Zoey based on, among other things, the pr edi cate termination groun ds set forth in Subsections (D), (E) , and (O) of Section 161.001(b)( 1) of the Family Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E) , (O) . The Dep a rtment sought termination of Mother ’ s parental rights as to Zoey b ase d on, among othe r thin gs, the predicat e termi nation grounds set forth in Subsections (D), (E) , (O), and (R)

. See id

. § 161.001(b)(1)(D), (E) , (O) , (R)

. Following a bench trial, the tria l court signed an order finding that Father had engaged in conduct under Su bsecti ons (D), (E) , and ( O); that Mother had engaged in conduct under Subsections (D), (E) , (O), and (R) ; and that termination of their respective parental rights was in Zoey ’ s best interest. Father and Mother appeal from tha t t ermination order

.7 III. D ISCUSSION A . Father ’ s Appeal In his sole issue, Father challenges the trial court ’ s finding that termination of his parental rights was in Zoe y ’ s best interest

. 5 1. Standard of Review For a trial c o ur t to terminate a pa r ent

– ch ild relationship, the party seeking termina tion must establish, by clear and conv in cing eviden ce, that (1) t he par ent ’ s actions sat

is fy just one of the many predicate g rounds listed in Family Code Section 1 6 1.001(

b )(1) , and (2) te r min a tion is in the child ’ s best interest under Section 161.001(b)(2)

. 6 Tex. Fam. Code Ann. § 161 .001(b); In re E.N.C. , 384 S.W.3d 79 6, 803 (Tex. 2012); In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005). Evidence is c lear and convincing i f it “ w

i ll pr o duce in th e mi n d of the trier of fac t a firm belief or conviction as t o the tru th of the alleg ations sought to be established. ” T ex. Fam. Code An n. § 101.007

.

5 Father challenges the sufficiency of the evidence to support a best

- interest fi nding under both Section 161.001(b) (2) and Section 161.003(a)( 5), but th e trial court di d not make a finding based on Section 161.003(a)( 5) and did not terminate Father ’ s parental righ ts under that sub section. See Tex. Fam. C ode Ann. § 161 .00 3 (a)( 5). We will thus limit our analysis to the tri al court ’ s best

- int erest finding under Se ction 161.001(b)(2). See In re P .L. , No. 02

- 22

- 00463

- CV, 2023 WL 2703805, at *4 n.7 (Tex. App.

— Fort Worth Mar. 30, 2023, no pet. h. ) (mem. op.) ( “ Mo t her also challenges the sufficiency to support a bes t

- interest fi ndi ng under Section 161.0 03(a)(5), but the trial court d id not make a finding b ased on that sub section and did not terminate Mother ’ s p arental rights under Section 161.003. ” ).

6 Father do e s n o t challenge the finding of pre dicate grounds for termi nation

.8

To deter mine whether the evidence is legally suffi cient in parental

- termination

c a ses, w e look at all t he evi d ence in the li g ht mos t favorable to the c hallenged findings

— here the best

- interest finding

— to determine whether a r easonable fact fi nder could form a firm belief or conviction that the finding is true. In re J.P.B. , 180 S.W.3d 5 70, 57 3 (Tex

. 2005); se e Te x . Fam. Code An n . § 1 6 1.001(b)(2). We

assu me that the factfinder settled any evidentiary conflicts in favor of its finding if a

r ea sona ble factfinder coul d have done so. J.P.B. , 180 S.W.3d at 573. We disregard all evidence th a t a re a sonab l e factf i nd e r c o uld have disbe l

ieved, and we consider und isputed evidence even i f it is contrary to the finding. Id

. That is, we consider evide nc e fa vorable to the find ing if a reasonable fact finder could, and we dis regard
cont rary evidence u nless a reas o nable f a ct f ind e r could not. S ee id. The f actfinder is the sole judge of the w itnesses ’ credibility and dem eanor. In re J.O.A. , 283 S.W.3d 336 , 346 (Tex. 2009). We mu st perform “ an exacting review of the entire record ” in determining the f a ctual s uffic i ency of th e ev i dence supporti n g the termination of a parent

– child relationship. In re A.B. , 437 S.W.3d 498, 500 (Tex. 2014). Nev ertheless, we gi ve d ue deference to the factfinder ’ s findings and do not supplant them with our own. In re H.R. M

. , 209 S.W.3 d 105, 1 0 8 ( Tex

. 2006)

. Here, we rev iew the whole record to decide whether a fa ctfinder could reasonably form a firm conviction or belief th at t he
ter mination of Father ’ s parental rights to Zoey is in Zoey ’ s best interest. S ee Tex. Fam. C ode Ann

. § 1 61

. 001(b)(2). I f t he factfinder re a sonab ly could form such a firm9

conviction or belief, then the evidence is factuall y sufficient. I n re C. H. , 89 S .W.3d 17 , 18

– 19 (Tex. 2002)

. 2. Applicable Law Alt hough we generally presum e that keep i n g a child w i t h a pa rent is in t he ch ild ’ s best inter est, I

n re R

. R

. , 209 S

. W.3d 1 1 2, 1 16 (Tex. 2 0 0 6 ) , the best

- interest analysis is child

- centere d, foc using on the child ’ s well

- being, safety, and development , In re A.C. , 560 S.W.3d 624, 631 (T ex. 2018). E v id enc e t h a t is pro bative o f th e p re dicate grounds u nd er S ection 161.001(b) (1) m ay a l so be p robative of best i ntere st und e r Section 1 6 1

. 00 1(b) ( 2)

. In re E.C.R. , 402 S.W. 3d 239 , 2 49 (Tex . 20 1 3) ; C.H. , 8 9 S.W.3d at 2 8

. We also consider the evi dence in li g h t of the fo l l owi ng nonexclusive f a ct ors that the fac tfinde r may apply in determi ning the child ’ s best interest :

• the child’s desi re s;

• th e c hi l d’ s emotio n al and p h ys ica l n eed s now and i n t h e futu r e;

• t he e mo tional and physical d anger t o the child n ow a nd in t h e fu tur e;

• the p ar e nt a l abilities of t h e in div idu a l s seeki ng cust od y ;

• the progra ms available to assist these ind iv iduals to pr om o te the chi l d’s best in ter es t ;

• the plan s f

o r the c hild b y th ese i ndividual s or by the agency seeking cu s t ody ;

• th e sta bil

ity of the h om e o r proposed place m e nt;

• th e parent’ s acts or omissions that m ay indicate t hat the existing pa re nt

– child r el at i on s hip is n ot a pro p er on e; and

• the pa r e n t ’s exc u se, if a ny , fo r the acts or omissio ns .10

Ho lley v. Ada m

s , 5 44 S.W .2 d 367 , 3 71

– 72 (Tex. 19 7 6) ; see E.C.R. , 40 2 S.W. 3d at 2 49; E.N .C. , 384 S .W.3d at 807

. T hese factors do not form an exhau s tive list , an d so me facto r s may no t ap pl y t o s o me cases. C

. H

. , 89 S .W.3d at 2 7. Furt hermor e, undisput ed ev

ide nce of just o ne factor m a y su ffi ce in a part ic u la r case to suppor t a fi nd ing t hat ter mination i s in the child’s best interes t. Id. On the othe r hand, th e pr es en ce of pa l try evid e nce r el e van t to each f a c t o r will not su pp or t such a f indi ng. Id. ; I n re C.G

. , No. 02

- 2 0

- 00 0 87

- CV, 2 0 2 0 W L 4 51 8590, at * 7 ( Te x . App.

— Fort Wor t h Aug

. 6, 2 0 20, pet . denied ) (mem. op.); In r e J.B. , No. 0 2

- 18

- 00034

- CV, 2018 W L 3289612 , at * 4 (T ex. Ap p . — Fort W o rth J ul y 5, 2018, no p e t . ) ( mem. op.). 3. Best
- Interest Analysis As to Zoey ’ s desires, the reco rd reflects that Zoey wa s o n e year old at t he tim e of the termination trial and did not testify. “ Wh en children are too young to expre ss their desires, the fact finder may consider whether the children have b onded with the foster family, are well

- cared for by them, and ha ve spent minimal time with a parent. ” In re S.R. , 452 S.W.3d 351 , 369 (Tex. App.

— Houston [1 4th Dist.] 2014, pet. denied). The re cord re flects that Zoey is in a foster home with Reid

— her biological brother

— and that Zoey and Reid have a ver y close bond. Moreov er, Sh affer testified that the Foster Family was meeting Zoey ’ s emotional, physical, development a l , educational, and medical needs

. In contrast to the close bond between Zoey and Reid, Shaffer testified that Zoey did not appear to hav e a strong bo nd wit h Father. The record11

further reflects that Zoey was removed from Father ’ s care three days after her birth and that she had not spent a significant amount of ti me with Father

. 7 The trial court was entitled to f

ind that this facto r weig h ed in favor o f terminati ng Father ’ s parental rights to Zoey. As to Zo ey ’ s emotional and physical n eeds now and in the future and the emotional and physical danger to her now an d in the future, the record reflects that Father test e d p ositive for meth amphet a mi nes repeatedly during the cas e and that he also failed to submit to requested drug testing

. Such evidence of past drug use and a refusal to submit to drug testing supports a finding that the parent has en d ang ered the ch ild ’ s emoti onal and physical needs and posed a danger to the child. See In re L.T. , No. 02

- 22

- 00197

- CV, 2022 WL 15053329, at *7 (Tex. App.

— Fort Worth Oct. 27, 2022 , no pet.) (mem. op.) (conducting best

- interest analysis a nd noting that mothe r ’ s patter n of drug use a nd refusal to submit to drug test ing supported termination) ; In re M.H. , No. 02

- 22

- 00048

- CV, 2022 WL 2840 266, at *2

– 3, 6 (Tex. App.

— Fort Worth July 21, 2022, no pet.) (mem. op.) ( s imilar ). And as to future drug use, a factfinder

m ay measure a parent ’ s fut ure conduct by his past conduct. In re A.H. , No. 02

- 21

- 00402

- CV, 2022 WL 1682422, at * 11 (Tex. App.

— Fort Worth May 26, 2022, no pet.) (mem. op.) ; In re R.H. , N o. 02

- 19

- 00273

- CV, 2019 WL 6767804, at *5 (Tex. App.

— Fort Worth Dec. 12 , 2 019, pet. denied ) (mem . op.).

7 S haf fer stated that , at th e t

ime of trial, Father was allowed biweekly , ninety

minute visits with Zoey.12

Moreover, the record reflects that Father minimize s the drug use of the family unit . Father stated that he did not believe that Zoey and Reid had tested positive for methamphetamines at their respective birth s , and Father admitted that he had never discusse d Mother ’ s m ethampheta mine addiction with her de spite knowing of the addiction

. And while he denied his own drug use, Fathe r offered no explanation for his positive te st re sults. See In r e A .J.W. , No. 04

- 19

- 00346

- CV, 2019 WL 6333468, at *6 (Tex . App.

— San A ntonio Nov . 27, 2019, no pet.) (mem. op.) ( “ The court could have rationally concluded that [mother] is unable to protect her children or to provide them a safe and stable envir onment beca use she minimizes h er dru g problem. ” ); In re A.E. , No. 05

- 14

- 01340

- CV, 2015 WL 1184179, at *7 (Tex. App.

— Dallas Mar . 16, 2015, pet. denied) (mem. op.) ( conducting best

- interest analysis and noting that mother ’ s “ choice to minimize her past drug use ” w as a fa c tor of “ particul ar sig ni fi cance ” ). The trial court was entitled to find tha t these factors weighed in favor of terminating Father ’ s parental rights to Zoey. As to the plans for Zoey, Shaffer t estified that the Department ’ s plan was for Zoey to ultimate ly be adopted by th e Fost er Family, where she would remain with Reid. Father i n dicated that he wanted Zoey to be placed with his brother and mother

. Father acknowledged that if Zoey was placed with his brother and mother, Zoey would be s epa rate d from Reid. Shaffer testified that removing Zoey from Reid would be “ traumatizing to h e r and him. ” The trial court was entitle d to find that this factor weighed in favor of terminating Father ’ s parental rights to Zoey. See In re A. O. , No.13

02

- 21

- 00 376

- CV , 2022 WL 1257384, at *14 (Tex. App.

— Fort Worth Apr. 28, 2022, pet. denied) (mem. op.) ( “ G enerally, it is in a child ’ s best interest to keep siblings together whenever p ossible. ” ); In re A.J.T. , No. 02

- 12

- 00029

- CV, 2012 WL 3499418,
at *4

– 5 ( Tex. App.

— Fort Worth Aug. 16, 2012, no pet.) (per curiam) (mem. op.) (affirming best

- in terest finding a nd noting that siblings were placed to gether). As to Father ’ s acts or omissions that may indi cat e that the exi sting parent

– child relationship is not a proper one and F ather ’ s ex cuse, if any, for such acts or o missions, the record reflects that Father rep e at edly tested positive for methamphetamines during the pendency of this case

. Father, however, did not offer any explana tio n for the failed drug tests. The trial court was entitled to find that th ese factor s weighed in favor of termin ating Father ’ s pare n tal rights to Zoey. See In re D.R.V. , No. 08

- 22

- 00238

- CV , 2023 WL 2544577, at *8 (Tex. App.

— El Paso Mar. 16, 2023, no pet. ) (m em. op.) (holdin g that mother ’ s failure to offer any explanation for noncompliance with random drug testi ng was factor trial cou rt c ould have considered in favor of termination as part of best

- interest determination) ; In re A.S.G. , No. 04

- 17

- 00297

- CV, 2 017 WL 48016 67, at *6 (Te x. App

— San Antonio Oc t. 25, 2017, no pet.) (mem. op.) ( considering evi dence that “ mother n ever offered any ex p lanation for her drug use during preg nancy ” as factor to consider in best

- interest analysis). 4. Best
- Interest Con clusi on Viewing the evid ence i n th e light m ost favorable t o the tr ial court ’ s bes t

interest finding, we hold that a fact finder could hav e r e asonably formed a firm14

conviction or belief that te rmina tion of the par ent

– ch ild relati onship be twee n Father

an d Zoey was in Zoey ’ s best in t erest, and we t herefore hold that the evidence is legally sufficient to support the trial court ’ s best

- interest fin d ing. See Tex. Fam. Code An n. § 1 61 .001(

b)(2) ; J.P.B. , 180 S. W.3d at 573. Based on ou r e xac tin g review of the entire rec or d and giv

ing due defe re n ce to th e factfinder ’ s findings, we lik ewis e conclude that the evidence is factually suff icient to suppor t t h e trial court ’ s best

intere st findi ng. See C.H. , 89 S. W.3 d a t 18

– 19. According ly, we overr ule Father ’ s sole issue. B . Mo ther ’ s Appeal Mo ther’s appoi nted appel late counsel has filed a brief asserting that he “ has been unable to ide nt

ify any legally n on
- f

rivolous grounds for appeal ” and that Mother’s appeal is therefore frivolous. See Anders v. Californ ia , 386 U. S. 738, 7 44

– 45 , 8 7 S. Ct. 1396, 1 400 (1967); see also In re K.M. , 98 S .W.3d 774, 776

– 77 (Tex. App.

— Fort W or th 2003, order

) (holding that Ande rs p rocedures apply in parental

- rights termination cases) , disp. on merits , No. 2

- 01

- 349

- CV, 2003 WL 2006 583 , at * 2

– 3 (Tex. App.

— F ort Worth M ay 1, 2003, no pet.) ( per curi am) (mem. op.)

. Counsel’s brief meets the Anders requirements by pres enting a profes si o n al evaluation of the record and demonst rating why there a re no arguable grou nds to advance on appeal. W e provided Mothe r th e opportunit y to obtain a copy of the appel late record and to file a pro se response, but sh e did not do so.15

When a n Anders br ie f is filed, we must independently examine the a ppellate record to determine if a ny arguable grounds for ap peal e xist. In re C.J

. , No. 02

- 18

- 00219

- CV, 2018 WL 4 496240, at *1 (Tex. App.

— Fort Worth Sept. 20, 2018, no pet .) (mem. op.); see Staffo rd v. State , 8 1 3 S.W.2d 503, 511 (Tex. Crim. App. 1991). We also consider t he Anders brief i tself and, if filed, an y p ro se response. In re K.M. , No. 02

- 18

- 00073

- CV, 2018 WL 3288591, at *10 (Tex. App.

— Fort Worth July 5, 2018, pet

. denied) (mem. op. ); see In re Schu lm a n , 252 S.W.3d 403, 408

– 09 (Tex. Crim. App. 200 8) (orig. procee ding)

. We have ca refully reviewed appoin ted appel late couns el’s A nders brief and the appellate record. Having found no reversible error, we agree with cou nsel that this appe al is without mer

it

. See Bledsoe v. State , 178 S.W.3d 824, 827 (T ex. Crim. App. 2 005); In re D.D

. , 279 S.W.3d 849, 850 (T ex. App.

— Dallas 200 9, pet . denied). Therefore, we affirm the trial court’s order terminating the parent

– child rela tionship between Mo ther a nd Zoey

. Mo th e r ’ s c ounsel remains appointed in this appeal t h rough proceeding s in the supreme cou rt unless otherwise re liev ed from his duties for good cause in accordance with Family Code Section 107.016. See Tex. Fam. Code Ann. § 107.016; In re P.M. , 520 S.W.3d 24, 2 7

– 28 (Tex. 2016) (order)

. I V. C ONCLUSION Havi ng overruled Father ’ s sole issue and having held that no thi ng in the record might arguabl y support Mother ’ s appeal, w e affirm the trial court ’ s term ination order

.16 /s/ Dana Womack Dana Wo mack Justice D elivered: May 18, 2 023