## In the Court of Appeals Second Appellate District of Texas

at Fort W o rth

___________________________ No. 02

- 19

- 00215

- CV

___________________________

On Appeal from the 323rd District Court Tarrant County, Texas Trial Court No. 323

- 107692

- 18

Before Gab r iel, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Gabriel 

### I N THE 

### I NTEREST OF 

### N.M., A 

### C HILD2 M EMORANDUM OPINION Appellant Guy Moore (Father) appeals from the trial cou r t’s order terminating his parental rights to his son, N athan Moore. 1 I n a sole point , he argues that the evidence was factually insufficient to sup port the tri al court ’ s finding th at the
termination of his par ental rights was in Nathan ’ s best interest. B ecause the entire
record allowed the trial court to have formed a firm belief or conviction that
termination was in Nathan ’ s best interest, we affirm the trial court ’ s judgment.
I. BACKGROUND
I n June 2018, police officers conduct ed a traffi c stop of a car driven by Father

. Nathan ’ s mother Annie Post (Mother), two

- year

- old Nathan, and Mother ’ s older daughter Cathy were also in the car. The o ff icers arrested Mother af

ter discover in g she had a warrant regarding a fraud charg e in Oklahoma and note d a strong marijuana smell emanating fro m Father ’ s car . Father said that both children were his, but the officers determined that Cathy was classified as a missing person based on a custodi a l

kidnappi ng al ert created at the request of Cathy ’ s fat her who lived in New York. Cathy had been missing for over a year. The officers removed Cathy and Nathan , and Cathy was re united with her father the next day. T he Department of F a mily and
Protectiv e S er

vices (DFPS) took custody of Nathan after obtaining an emergency

custo dy order and filed a suit aff ecting the parent

- child relations hip, seeking to reu nite

1 We use aliases to refer to the minor child and his family me mbers. See Tex. Fam. Co de Ann. § 109.002(d); Tex. R. App. P. 9.8(b ).3

Fath er and Mother with Nathan or to terminate their parental rights if reunification
could not be ach ieved

. When Nathan was placed in a foster home, he had speech and developmental delays , which Fath er and Mother had not noticed

. Nat han also had “ difficulties ” and

“ behaviors ” when he was initially placed in DF PS ’ s custody: [N athan was] very po ssessive over objects and things, mor e so than your typical two year old. He actually claimed a cou ch in the [foster] home and woul dn ’ t let anybod y touch it, stand near it, sit on it. He didn ’ t want to eat with the family. There was his palate with his food was not very broad. [Nathan] didn ’ t like really vegetables, he didn ’ t really like fru its

. His palate wasn ’ t very he althy. J oel Juarez, a DFPS investigat or, talked to Father soon after Nathan was placed
in DFPS ’ s custody. Father a dmitted that he a bused m arijuana and o piates and that he
cared for the chil dren while using m arijuana

. Indeed, Nathan tested positive for marijuana exposure shortly after he was placed in DFPS ’ s custody

. Father was confirmed to be Nathan ’ s fat h er , and he and Mother wer e placed
under a ser

vice plan. Th e plan required Father and Mother to find safe and sta bl e housing, maintain financial stability, undergo drug testing, participate in therapy, and complete al cohol

- and drug

- abuse treatment. Father was told that his compl iance with the safety p lan would be a factor in deciding whether he could be reunited with
Nathan. The only employment Father reported to DF PS was his self

- employment as a
car detailer and doing “ odd jobs ” ; however, he c ould not provide proof of the4

“ de cent amount o f money ” he reportedly made

. Mother was unemployed

. Mother
and Father w ere uncooperative wi th DFPS ’ s attempt s to arrange a home visit of her
and Father ’ s living condi tions , an d Mother admitted where she and Fathe r lived was
not a stable env

i ro nment
. I n fact , the y w ere living in weekly hotels after being evicted
from other liv

ing ar rangements
. Father and Mother provided no proo f that th ey were attending alcohol

- and drug

- abuse meetings. Neither successfully complete d any form of dr ug t rea tment. While the service plan was in place, Mother abused and tested positive for opiates an d
admitte d she used marijuana

. Father tested positive many times f or marijuana ,
cont inued to abuse opiates, and admitted that he had repeatedly exposed Natha n to second

- hand marijuana smoke. Both Mo th er and Father missed or were late fo r the

m ajo rity of their sc heduled visits with Nathan

. M other and Father re mained a couple throug hout DFPS ’ s conservatorship.
In November 2018 , Father a pproached a man at a gas s tation to ask him if he
needed his car detailed. M other then allegedly took $60 dollars from the man without
his consent. While they were driving away , Father allegedly hit the man with his car. 2 A grand j ury indicte d Mother with theft. In early 2019, Mother and Father convinced three elderly people to give them approximately $25,000 by lyin g that they had sick

2 Fa the r alternately denied or pleaded t he Fifth Amendment to this offense; however, his invocation of the Fifth Amendm ent al lowed the trial court to draw adverse inferences regarding the incident. See Baxter v. Palmigiano , 425 U.S. 308, 318 (1976) ; In re C.J.F. , 134 S.W.3d 343, 352 (Tex. App

. — Amarillo 2003, pet. denied)

.5

triplets who required food and medicine that Mother and Father could not afford.
Both were indicted with three counts of exploitation of the el derly.
DFPS investigat ed the possibility of placing Nathan wi th Father ’ s mot her , Sandra Moore

. During its inve stigation o f Sandra as a possible placement for Nathan,
S andra a dm itted that she used marijuana ever y evening to rel ax and stated that mariju a na was “ one of [her] only friends

. ” Sandra lived with her daughter and her daughter ’ s t hree children in a two

- bedroom ap artmen t. The two school

- aged ch ildren
did not attend school , and Sandra was unemployed. Sandra did not comply with any
of DFPS ’ s requ ests in order to show that she was an appropriate placement for
Nathan.
A lthough DF PS ’ s initial , primary goal was reuniting N a than with Mother and Father, by the time of trial, DFPS sought the termination of Mother ’ s and Fa th er ’ s paren tal rights and a n unrelated adoption for Nathan

. A t trial, Father testified that he

w as not rea dy to have Nathan even though he had had eleven months to prepare
. Father was arres ted during a break in the tri al for violati ng his bond c o nditions after a urinalysis s howed he had been using marijuana. Mo ther testi fied that she knew Father
had driven Nathan while under the i nfluence of drugs and alcohol and that he wou ld
smoke marijuana in the car while she and Nathan w ere present. She also admitte d
that she had not provide d Nathan with a safe and stable en vironment

. Cortney Tiffany, the DFPS conservatorship worker assigned to Nathan ’ s ca se, testified to Mo ther ’ s and Father ’ s failure s to com ply with the service plan and their6

dr ug ab use. She poi nted out that their drug use continued throughout the c a se , rendering them unable to provide Nathan with a saf e and stable env

ir onment
. Tiffany

test ified that Nathan was doing well in his foster home and th at his foster parents were motivated to adopt him if Mother ’ s and Father ’ s pa rental rights were ter minat ed. Although Nathan ’ s visits with Mother and Father went well and he was bonded to his
parents, Tiffany believed termination was in N athan ’ s best interest because it w ould
afford him permanency

. Sinc e his removal, Nathan ha d “ d one quite well ” and ha d

“ hit ” all o f his developmental milestones. Nathan ’ s attorney ad litem agreed that
termination was in Nathan ’ s best inte rest. The trial court determined by clear and convincing evidence that Father had engaged in conduct jus tifyi ng the te rmination of his parental rights 3 and th at termination was in Natha n ’ s best interest : In considering conservator ship, [the ] Court finds that it is in the child ’ s best interest t o grant permanent managing conservatorshi p to [DFPS]. Th e Court find s that in consider ing the best interest that the

- - while there was some evidence of the child ’ s bond [with F ather] and there ’ s no doubt that there is a bond between all children and their parents of some sort, the Court did we igh[] this with the other be st in terest fac tors. [The ] Court finds that the emotional and physical needs of the child have not been met b y the parents prior to removal nor since removal but the

3 Specifically, the tri al court found that Father had eng aged in endangering conduct or allowed Nathan to be with perso ns who en gaged in such conduct , that Father had failed to com ply wi th the servi ce plan , and that Father had f ai led to com p lete a court

- or dered substance

- abuse pro gram a nd continued using controlled subs tances
. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P). The tri al court also terminate d Mother ’ s parental rights based on clear and convincing evide nc e , but Mother has not appeal ed the termination or der.7

emotional and physical needs of the child have been met by [h is ] placement fa mily. [The ] Court f

inds that the part

i es ’ behavior and ongo ing behavior throughout this case that . . . in fact seem to even have worsened , that [the] emotion [al] and physical danger they present to the child is another consideration it ’ s not in the child ’ s best in t erest to not [sic] be in that
en vironment . The y have not demonstrated the parental ability necessary to paren t [Nathan]. There have been programs to assist them with their parenting and with [Nathan] and they have chose n not t o take adva ntage of it. The y haven ’ t demons trated any plans for the child; h owever, [DFPS] demonstrates a clearly laid out plan to

- - fo r adoption hopefully with the foster family. [Father ’ s] plans for the child were perhaps maybe t o place the child wi th so meone in his family; ho wever, it has been almost a year and none of that has happened and it ’ s not in the child ’ s best interest to re main in limbo with people that can ’ t make plans for him and the instability of mother and father ’ s home is not in th e child ’ s best inte rest. I wa nt to make it very clear tha t the Court is not co nsi dering whether or not the child attended a public school o r was home schooled. That is not even a consideration here. It ’ s not a consideration that you are low incom e and it ’ s not even a cons ideration f or me that you live in a hotel because there ’ s no thing wrong with that. It ’ s the instability and moving aroun d from place to place and subjecting him to the continued drug use and the continue d criminal charges that creates ins tability in the C ourt ’ s eyes . The acts and

- - the stability of the placeme nt where the child has been in the last 12 months due to [DFP S ’ s] placement is in the child ’ s best interest. The acts or omissions of the par ents to . . . complete their service plan and to creat e a stable home environment for the child are also a conside ration and the Court does not find that there is any excuse f or t h e acts, the omission s you ’ ve done and the . . . violation of the bond condition which was clearly admitted to on the record. That is not in the child ’ s best interest.
See Te x. F am. Code Ann

. § 161.001(b). Father requested f indi n gs of fact and
conclu sions of law, but did not file a notice of past due findings and conclusions. Se e8

Tex. R. Civ. P. 29 6

– 9 7

. See ge nerally In re A.S. , No. 02

- 16

- 00076

- CV, 2016 WL 3364838, at *6 (Tex. App.

— Fort Worth June 16, 2016, n o pet.) (mem. op.) (discussing discretiona ry nature of request for findings and conclusions in context of termination appeal).
II . BEST INTEREST

A. S COPE OF F ATHER ’ S C HALLENGE
Fat h er appeals , Mother does not. Father assert s that the evidenc e was factually
insufficient to show that termination of his parental rights was in Na than ’ s best
interest : The father maintained that he had provided for his son for the two years prior to [DFP S ’ s] in volvement in his life. There was no eviden ce that the child was ever neglected or mistreated prior to the [DFPS] removal. The fa ther believed that the quali ty care he and his wife provided for t he chil d in his early y ears clearly establis hed that h e could provide that level of car e in the future. He argues that the “ case comes down to the father ’ s drug use ” and that his abuse of marijuana and “ infrequent ” use of opiates does not suffici ently s how Nathan ’ s best
interest would be served by termina tion.
Father does not challenge an y of the conduct grounds upon which the trial
court termina ted his parental rights

. See Tex. Fam. Code Ann. § 161.001(b)(1). Nor does he argue that the conduct grou nds cannot be considered in our best

- interest analysi s b e cause they , in turn, were supported by insufficient evi dence. See In re A.M. , No. 02

- 19

- 00023

- CV, 2019 WL 3334420, at *6 (Tex. App.

— Fort Worth July 25,9

2019, no pet. h.) (mem. op.). Accordingly, we ad dress only the best

- interest finding in
the contex t of ou r sufficiency rev iew

. Cf. In re N.G. , 577 S.W.3d 230, 235

– 3 7 & n.1 (Tex. 2019) (per curiam) (holding “ [w]hen a parent has presented the issue on appeal, ” due process and due course of law require an appellate court to review evidentiary sufficiency of endangerment grounds under secti on 161.001(b)(1)(D)

– (E) even if termination may be supported by a different conduct ground ).

B. S TANDARD AND S COPE OF R EVIEW Although the parent

- child relationship i s t o be protected, it may be terminated upon a showin g by clear and convincin g evidence that the parent ’ s actions satisfy a statutory ground justifying termination and that terminati on would be in the child ’ s best interest. See Tex. Fam. Code Ann. §§ 161. 001 (b), 161.206; In re E.R. , 385 S.W.3d 552, 554

– 55 (

Tex. 2012). Evidence is clear and convincing if it “produce[s] in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann

. § 101.007

. A child ’s best interest is a

tr ial c ourt ’s “primary consider ation ” when determining cons erva torship , possession,
and ac ce ss to a child. Id. § 153.002. And although we presume that keeping a child

w it h a parent is in a chil d ’ s best intere st, we may not sacrifice the em otional and physical i nterests of the c hild me rely to preserve the rights of a parent. See id. § 153.131 (b); In re E.C.R. , 402 S.W.3d 239, 240 (Tex. 2013)

. In a factual

- sufficiency review, we consider the entire record, giv ing due
de fe rence to the fact

- finder ’ s findings. See In re A.B. , 437 S.W.3d 498, 500 (Tex.10

2014). E vidence is factually sufficient to support a trial court ’ s section 161.001(b)(2) finding if the trial court could have reasonably form ed a firm conviction or belief that the termination of the parent

- child re lationship between Fathe r and Nathan would be
in Nathan ’ s best interest. See In re C.H. , 8 9 S.W.3d 17, 28 (Tex. 2002). In our review
of the trial cour t ’ s best

- interest finding , we are to examine severa l factors, including
but not limited to (1 ) Nathan ’ s age and emotion al and ph ysical needs now and in the
future ; (2) the results of psychiatric, psychological, or developmental eva luation s of Nathan, Father, or others who have access to Natha n ’ s home; (3) whether th ere is a history of substance abuse by Nath an ’ s family or others wh o have access to Nathan ’ s home; (4) the willingness and ability of Natha n ’ s family to seek out, accept, and complete counseling servi ces ; (5) the willingness and ability of Nathan ’ s family to effect positive environmental and person al changes within a reas onable period of
time ; ( 6 ) Father ’ s par enting skills; (7) the availability of an adequate social support system for Nathan; (8) Father ’ s and DFPS ’ s plans for Nathan ; (9) Father ’ s acts or

om issions that indicate the existing parent

- c hild relationship is not a proper one ; and ( 10 ) any excuse for Father ’ s a cts or omission s . See Tex. Fam. Code Ann. § 263.307(b); Holley v. Adams

, 544 S.W.2d 367, 371

– 72 (Tex. 1976).
C. A PP LICATION OF S T ANDARD TO R ECORD E VIDENCE We conclude that the evide nc e reflected in the rec ord allowed the tr ial court to fo rm a firm convi c tion or belief that the termination of Father ’ s parental rights was in
Nathan ’ s best interest. Father does not di spute that he en dangered N athan, allowed11

him to remain in endangering circumstances , failed t o comply with the service plan, and failed to complete a court

- ordered , drug

- treatment program. He also admitted
that he was not read y to care for Nathan even though he had been under a se rvice plan for close to twelve mo nths. S a n dra was an inappropriate placement for Nathan because of her living situation and her daily use o f marijuana. Father similarly abused marijuana and opiates, testing positive multiple tim es while under a service plan and failing to submit to other tests. 4 He test ed negative for drug use only once. Father
miss ed or was late for h alf of his supervised visits with Nathan

. Father could not provide proo f of employment or income and lived in a weekly hotel. At the time of trial, Father had been indicted fo r exploiting the elderly and had violated his bond conditions by testing positiv e for marijuana use. He had also allegedly been invol ved in helping Mother steal money from a man at a gas station

. Tiffan y was concerned that Nathan would be caught up in Fat her ’ s and Mother ’ s criminal behaviors. Nathan ’ s speech and developmental delay s improved after he was

remove d from Mother and Father ’ s care. Nathan was do ing well with his foster
famil y, and they wan ted to adopt him. Ti ffany testified that neither Fathe r nor M o ther could provide N athan with a safe and stable environment. Th is evidence, relevant to the applicable factors, was factually suff icient to support the tr ial court ’ s

4 Du ring DFPS ’ s d irect examination of Father at tri al , the t rial co urt interjected and asked Father if he was then under the i nfluence of opiates , marijuana, an other controlled substance, or any medi ca tion. Father said that he was not.12

best

- interest finding. S ee

, e.g. , In re K.J.G. , No. 04

- 19

- 00102

- CV, 2019 WL 393 7278, at *9 (Tex. App.

— San Antonio Aug. 21, 2019, no pet. h.) (mem. op.) ; In re C.A. , No s. 07

- 18

- 00439

- CV, 07

- 18

- 00440

- CV, 2019 WL 2403168, at *3

– 4 (Tex. App.

— Amarillo J une 6, 2019 , pet. denied ) ; In re E .R.W. , 528 S.W.3d 251, 266

– 67 (Tex. App.

— Houston [14t h Dist.] 2017, no pet.); In re T.S. , No. 02

- 17

- 00047

- CV, 2017 WL 2290195, a t *2

– 3 (Tex. App.

— Fort Worth May 25, 2017, no pet.) (mem. op.) ; In re M.R. , 243 S.W.3d 807, 820

– 22 (Tex. App.

— Fort Wor th 2007, n o pet.).
III. CONCLUSION Deferring to the trial cou rt ’ s findings and not supplan ting its judgment with our

own , we concl ude that the trial court had before it sufficient evidence that all owed it

to form a firm con viction or b elief that the t ermin at ion of Father ’ s parental rights was
in Nathan ’ s best intere st. We overrule Father ’ s appellate point attacking the factual
suffi ci ency of the evidence to support th e trial court ’ s best

- interest f in ding and we
affirm the trial court ’ s order of termi nation

. See Tex. R. App. P. 43.2(a).

/s/ Lee Gabriel
Lee Gabriel Justice
Deliv ered: September 19, 2019