Opinion issued March 14 , 202 3

In The 

## Court of Appeals For The 

## First District of Texa s

———————————— NO. 01
- 22
- 00689
- CV

——————————— IN THE INTEREST OF A. M . a /k /a F. E. M., A CHILD

On Appeal from the 31 3 th District Court

Harris County, Texas Trial Cou rt C a se No. 2021
- 01237J

MEMORANDUM OPINION Appella nt mother challenges the trial court ’ s order terminating her parental rights to her minor child, A.M. a/k/a/ F.E

. M

. ( “ Fra nk ” ) , and awarding the Department of Family and Protec tive Services ( the “ Departmen t ” ) s ole managing conservatorship of him . Mother contends that the evidence is legally and factually insufficient to support the trial court ’ s findings that she : ( 1 ) failed to comply with2

the provision of a court orde r that specifically est ablish ed the act ion s necessary to obtain return of the child ; and (2) used illegal d rugs in a manner that endanger ed
the child and failed to complete a court ordered s u bstance abuse program

. See T EX
. F AM
. C ODE § 161.001(b) (1) (O) ( service plan ) , ( P) (substan ce a buse). She als o contends that there is legally and factually insufficient evid ence to s upport the
court ’ s finding that termination of her p a rental rights is in the best interest of the child. I d. § 1 61.001(b)(2). We affirm. Background I n April 2021, la w en forcement r esp o nded to a motel concerning a drug overdose. Mother and father w ere found unconscious i n a parking lot. It was suspected that they had overdosed on PCP , and they were t aken to the hospital

. The Department was contacted when a child, O.H. ( “ Os car” ) , was fou n d strapped in a car se at in the motel. He was placed i n the Department ’ s temporary mana g i ng
conservat orship.
O ne month later, mo ther gave birth to Frank , who is the subject of this suit. Frank and Oscar have the same paren ts. At the tim e of Frank ’ s bi rth , his meconium tested positive for cocaine. Fr ank was placed with his paternal grandmother. T he Department was appointed te m p orary managing conservator of Frank

. The trial court entered an order establishing the actions nec essary for m o t her to obtain t he r e turn of Frank. The Department ’ s plan requ i r e d mother to:3

(1) maintain employment for more t han six months; (2 ) maintain stable housing for more than six mo nths; (3) complete parenting classes; (4) refrain from engaging in

an y illegal ac tivi ties; (5) at te nd all court hearings; (6) submit to random ur inalysis drug testing twice a month and hair fo llicle testing once every three months; (7) follow recommendations of a psyc h o social evaluation ; (8) follow
recommendation s of a p sychiatric eva luat ion ; and (9) si gn a release of information. The plan noted that mother was unwilling to work services at the ti me and that she had tested p ositive for illegal substanc es, continued to use them whil e pregnant, and suffered from mental hea l th issues. A. Trial The case pro ce ed e d to trial in August 2022. Before testimony be gan, the father signed a voluntary relinquishment a ffidavit. 1 In reviewing it, the trial court took judicial notice of Oscar ’ s case and state d that mother ’ s rights to O s car had been terminated p ursuant to su bs ection (O ), no chi ld support had been ordered, and the case was on appeal. The trial court then proceeded to hear testimony in the trial regarding mo ther ’ s rights to Frank. The court heard t estimony from the
De part ment’s supervisor , the child advocate as si gned to the case, and the paternal grandmother.

1 Father ’ s parental rights were also terminated and are not the subject of this appeal.4

1. Department Su pervisor T he Department supervisor testified that the De partment became involved with Frank ’ s parents when Frank ’ s older brot her O s car was found in a m otel room , strapped in a car seat. Osc ar ’ s parents were foun d unconscious outside the motel
room and taken to a hospita l. At the t ime, mother was pregnant with Frank, and she
gave birth to him one month later . Frank ’ s meconium tested positive for coc aine , and he was removed from his parents ’ c ar e at birth . He was placed wit h his paternal gr andm ot her. Oscar had also been placed with the paternal grandmother. The supervisor testified that mother had prior involvement with the dep artment for physical ab use of one of her other children and that he r pa rental rights to Oscar were terminated in March 2022 . The circumstances of that termination includ ed that mother denied drug use, cont inually test e d positive for drugs, and w as discharg ed from services withou t co mpleting them successfully

. She did not ha ve stable housing or employment

. Regarding Frank, the supervisor confirmed that a fa m ily service plan had been made an o rder of the court , yet mother had not successfully completed her

s ervices. Specifically, moth er had not provided proof of participati ng i n an anger management class or individual coun seling , and she was in denial of her drug use , though she engaged in substance abuse treatment. T he supervisor had spoke n to mother ’ s drug abuse ther apist a few d ays before trial, and she awaited paperwork5

re ga rding mothe r ’ s unsuccessful discharge from s ubs tance abuse treatment

. The supervisor commented that mother had been offered substance ab use trea tment in
Oscar ’ s case . T herefore , she had been offered services sinc e at least July 2021 , though she never s uc ce ssfully comp leted a treatment program. When mother spoke with the supervisor on the phone a month before trial, mother told the superv isor
that she had successfully completed substance abuse treatme nt. The su perv isor informed mother that she had spok en w it h the drug counselor who state d that mother would be unsuccessfully discharged from the program due to her denial of drug us e . Regarding drug testing, the supervisor testified that al though mother was order ed t o refrain from drug use, mother consis te nt ly tested positive. Most recentl y, m other test ed positive in May 2022 and did not appear for an ordered drug test on June 22, 2022. When the s upervisor spoke with mothe r about th e positiv e result, mother stated tha t she did not use drugs. The supervisor t es tified that mother gav e her four weekly p a ycheck stubs from James Coney Island , a fast

- food restaurant . In the supervisor ’ s opinion , two of them may have been created because they did n ot print the same way . The paychecks covered one week in March, two n on consecutive weeks in April, and one week in Jun e 2022. The y r a nged from $45.59 to $142.90 each

. The supervisor believed that based on the amount mother was receiving i n each check, she was6

working approximate ly 1 .5 days a week

. T he supervisor did not k no w whether mother had remained employed because sh e had not provided additional proof of

em ployment, and mother never provided paych ecks for the month of May. Regarding housing, mother pro vided t he supervisor wi th a handwritten note from her gra ndmother i nd ic ating that mother resided with he r. The supervi sor received the note t he month before t rial

. The supervisor testified that she had visited the home several times, and mother was never t here. The supervis or wa s

co ncerned that mother did not re side with he r gra ndmother

. Regarding visits with Fr ank, the supervisor stated that mother had not been visiting with Frank because there is a c ourt order of no contact. She testified that at the las t hearing prior to tria l, t he no contact order w as extended to add Fr an k ’ s caregivers , including his p aternal grandmother, after mo ther had threatened and harassed them. Notwithstanding the order, mother continued to con t a c t Frank ’ s paternal grandmother an d sh ow up at her house unan nounced

. The supervisor testified that m ot he r con tacted th e paternal grandmother the week befo re trial regarding mother ’ s behavior , and the supervisor had informed the grandmother to

c all the police if mother appeared at her home . Mother had not provid ed f inancial support for Frank sin ce his bir th , except for a few gift cards left in the caregi ver ’ s mailbox shortly before trial.7

The Department supervisor mentioned that mother c an be very aggressive

. She testified that on multipl e o ccasions, mother cal led her non stop, as frequent ly as 45 times i n 2 to 3 mi nutes. When the super visor eventually temporarily blocked mothe r ’ s number so the calling would stop, mother immediately called from another num ber. The supervi sor stated that the Department made reaso nabl e eff orts to attempt to reunify mother wi th F rank by offering servi ces, speaking with her numerous times, and referring her to additional providers whenever she was discharged from
a prog ram. The supervisor did not bel ieve that mother could provide a s table environment for Frank

. The supervis o r s ta te d that mot her ca n be very aggressive , and that her behavior was not safe for a chil d. The supe rvisor stated th at when Frank was born, mother refused to complete

an y paperwork that would have allowed him to obtain a birth certificate. In the abse n ce of a b irth cer tificate , Fran k was unable to obtain a social security card. According to the Department supervisor , Frank was thriving, meeting all his milestones, a nd there w ere no concerns with his pla ceme nt with his paternal grandmother. Frank, Oscar , a nd t wo older siblings also l ived with the paternal grandmother , whose husband and daughter both lived in the house and helped wit h childcare. Frank was bonded to his care givers , and all four children enj oyed playing together. The supervisor believed ter min at i o n was in Frank ’ s b es t interest8

as he was in a stable, l oving, drug

- free home with his brothers, and all his needs

w ere be ing met.
On cross

- examination, the supe rvisor acknowledged that mother comple ted some of the assigned tasks from the family ser vic e p l an . Mother signed a release of information , provided a few paychecks from James C oney Island , and provided a handwritten letter stating she lived with her grandm other

. Mother completed parenting clas ses and psychosocial and psychiatric evaluation s . Mot h e r ha d participate d in substance abuse treatment . She was referred to an agency for an
assessment and was diagnosed in Jul y 2021 with cannabis and amphetamine us e . She was discharged a month lat er for fail ure t o attend. The Department then referre d m other t o a second agency who di agnosed mother with alcohol and cocaine dependence. Mother was discharged a few months later d ue to nonattendance. Finally, mother was referre d to a third agency in April 2022 , and she wa s un successfully discharged from that progr am d ue to her denial of drug us e. 2. Child Adv ocate T he child advocate testified that she had been on the cas e for ab out eight month s and that the agency agreed with the Depa rtment ’ s recommendations to
terminate mo ther ’ s parental rights and for Frank to rem ai n wi th his pa ternal grandmoth er. The child advocate stated that both a previous coordinator an d a former voluntee r attempted to contact mother and were unsuccessful.9

The child advocate said he r termination reco mmen dation was based on concerns of m oth er ’ s in ab ility to complete service s and her agg ressive and hostile behavior. The c hil d a dvocate stated that mother has called and made threats to the paternal grandmother on mu ltiple occasions. Frank has been with hi s gr andmother for his entire life a nd is we ll b on ded , and it would not be i n his best interest to remove him from the placement. The child advocate stated that when Frank cam e into care, he experienced residual effe cts of drugs in his system. He shook for a bou t five or six weeks. At the time of tr ia l, a t 13 months old, he was de v elopmentally on target and doing well

. 3. Paternal G randmother T he paternal grandmother testified that Frank is doing well in her hom e and th at he attends daycare . She stated that sh e ca n meet his emotion al and physical need s an d that her long

- range goal i s to adopt Frank. She had not been able to get a social security card for Frank, and she intended to change his nam e. She stated that when F rank came to her home, he was four days o ld. Due to being born wi th drugs in his sy st em , Frank often shook. The pat ernal grandmother took Frank to the doctor, who advised her to go to the e mergency room if the

s haking became violent. The shaking never beca me violent and af ter s ix weeks, it stoppe d.10

The paternal g randmo ther testified reg ar di ng harassment by moth er. S h e stated that after a s tatus hearing mother ca me to the gra ndmother ’ s house. The paternal gr andmother was not there, so mother went to another family member ’ s house down the street an d de manded the return of her ch ildren . The f am il y member told the p aternal grandmother that mother looked distraught and high

. M o the r left but said she w ould be back to get her children. The paternal grandmother tes tified that mother ’ s behavior is disturbi ng a nd counterproductive to Frank ’ s s a fety a nd w ellbeing

. The pater nal gra ndmother testified that she lives with her husband and her adult daughter, who moved in to help them raise the four gr and children in their

c are. Frank is bonded to his siblings and rela tives. 4. Mother M other was initiall y in a tt en dance at the Z oom tr ial. Sh e began talking out
of turn during the Department supervi sor ’ s testimony . She stated that she could not hear , and she was going to leave. Th e court admonished mother not to interrup t

an d that she would get a chance to s peak i f sh e remained in the he aring. When
mot her interrupted a s econd time , stating that she was going to leave, the court
instructed the reporter to remove mother from the hear ing

.11

Near the end of the Department ’ s wi tnes ses, m other ’ s attorney te xted moth er
t o se e if she woul d be re

joining t he t rial. Mother ’ s attorney informed the cou rt that
mother did n ot respond. Mother never rejoined the hea ring.
B. Trial Outcome The trial co u rt terminated mother ’ s p arental rights pu rsua nt to subsection s (O) and (P). See T EX
. F A M
. C ODE § 161. 001(b)( 1)( O), (P ). The court found that termination was in Frank ’ s best interest . T h e court entered a permanent i nju nction against mother , stating that she was to have no contact with Frank or his caregivers. Mother appeal ed. S uff iciency of t he Evidenc e On a ppeal, m other chal lenges the sufficiency of the evidence to support the trial court ’ s findings that her rights should b e terminate d p ursuant to subsections ( O ) and ( P )

. See T EX
. F AM
. C ODE § 161. 001( b)(1)(O), (P). She also c hallenges th e

su ff iciency of the evidence to support th e trial court ’ s finding that termination was in Frank ’ s bes t in terest. I

d. § 161.001(b)(2). A. Standard of Review A trial co urt may order termination of the parent

- child r elat ionship if the Department proves, by clea r an d co nvincing evidence, on e of the sta tutorily enumerated predicate f

i ndings for termination and proves that termination of parental rights is in t he best intere st of the child. T EX
. F AM
. C ODE § 161.001(b) ; s ee12

I n re E.N. C. , 384 S.W.3d 796, 802 (Tex. 20 12 ) (r ec ognizing that federal D ue P rocess C lause and Texas Family Co de both mandate “ heightened ” st a ndard of review of clear and convincing evidence in parental

- rig hts termination cases). The
D e p artment must pro ve by clear and convincing evidence b oth a st at ut or ily prescribed predicate finding and tha t termination is in the ch ild ’ s b est interest

. Id. at 803. The Family Code define s “ clear and convincing evidence ” a s “ the m easure or degree of proof that will prod uce in the mind of the trier of fact a f irm be li ef o r conviction a s to th e trut h of the allegations sough t to be established

. ” T EX
. F A M
. C ODE § 10 1 .007. To assess the legal sufficiency of the evi dence in a te rminati on proceeding, we consider all evidence in t he light most favorable to the trial court ’s f in d ing and decid e “ whet her a reasonable trier of fact c ould h ave formed a f irm be l ief or conviction that its finding was true. ” I n re J. F.C. , 96 S.W.3d 256, 26 6 ( Tex. 2002); see City of Keller v. Wilson , 16 8 S. W.3d 802, 817 (T ex. 2005). We assume that

an y di sputed facts w ere res olved in favor of the finding if a reasonable factfinder

c o uld have done so. J.F.C. , 96 S.W.3d at 266. When “ no reasonable factfinder

co uld for m a firm belief or conviction ” that the m att er on which the Department bears the burde n of p roof is true, we “ m us t conclude that the evidence is legally
in suffici ent. ” Id. In revi ew i ng the evi dence ’ s factual sufficiency, we consider the entire recor d, i ncluding disp u ted evidence. Id. The evidenc e is factually13

insufficient if, in light of th e en ti re record, the disput ed evidence tha t a reasonable fact finder c ould not have resolve d i n f avor of the finding is so signifi cant tha t t he
factfind er could not reasonabl y have formed a fi rm belief or convic tion

. Id. We give due deference to the factfi nd er ’ s findings, and we can not substitute

our own judgment for that o f the fact finder. S ee In r e H.R. M. , 209 S.W.3d 105, 108 ( Tex. 2006). The fact finder is the sol e arbiter when a ssessing the credibility and de mean or of the witnesses. See id. at 109.
B. Pred ic at e F ind ing U nder S ubs ect ion 161.0 01(b)(1)(O) I n her fi rst and sec ond issues, mother conte nd s that the evidence was legally and factually insufficient to support the trial court ’s predicate findings that
term inat ion was w arranted under Family Code s ubsec ti on s 16 1.001(b)(1)( O) and (P). Subsection (O) provides that the co urt may order terminatio n o f the parent

child relationship if the court finds by clear and conv incing evidence that the parent has failed to comp ly with the prov isions of a court or der th at s pe cifically esta blished the actions necessary for the parent to obtain the return of the c h ild who has been in the permanent or temporary managing conservators hip of the Depar tment of Family and Prot ec tive Serv ices for not less than nine months a s a re su lt o f the child ’s removal from the parent under [Family Code] Chap ter 262 for the abuse or n e glect of the child.14

T EX
. F AM
. C ODE § 161.001(b)(1)(O ) . Thus, pursua nt to subsection (O), the Department must pr ove tha t (1) it has been the child ’ s tempor ary or p er ma nent

man aging conserv ator for at least nine months; (2) it took custody of the child as a

resu lt o f a removal from the parent under C h apter 262 for abuse or neglect; (3) a court issue d an order establishi ng t he actions necessary for the parent to obt ai n th e
return of th e child ; and (4) the parent did not comply with the court order. See id. Mother d oe s not dispute that (1) the Department has been F rank ’ s temp orary managing conservator for at le ast nine mo nths , (2) the Department had taken
custo dy of Fr an k as a result of a remo val f rom the parent under Chapter 262 for abuse or neglect , and (3) the court

- ordered family se rv ice plan constituted an or de r of the t rial court establishing the actions necessary f o r he r to be reunited wit h
Fr ank.
Prelim inaril y, m ot her argues tha t the t rial court erred by basing its subsection ( O ) finding on information cont ained in the case file from another case, namely the case term inating her rights to Frank ’ s older brother O s ca r . M other
asserts th at taking judicial not ice of t he truth of fact ual sta tements contained in pleadings and other documents in the case file for a nother case was erroneous. “ It is well recognized that a trial court may take judicial notice of its own recor d s i n a cause involving the same subject m atte r be tw een the same , or p rac tically the same , parties. ” Gardner v. Martin , 345 S.W.2d 274, 27 6 (1961) ; I n re Shifflet , 46215

S.W.3d 528, 539 (Tex. App.

— Houston [1st Dist.] 2015, no pet.). “ A trial court may take j u dic ial no tice of its own records in matte rs t ha t ar e generally kn own,

ea sily proven, and not reasonably disputed. ” Shifflet , 462 S.W.3d at 539 ( q uoting
In re R.S.D. , 446 S.W.3d 816, 820 n.4 (Tex. App.

— San An toni o 2014, no p et.) (internal quotation marks a n d c itation omitted) )

. “ T herefore, a court may t ak e judi cial notice that a pleading ha s been filed in the cas e , that it has signed an order,

or of the law of another jurisdiction, ” but “ [a] court may not take judi cial noti ce of the truth of allegations in it s r ecords. ” Id. (emphasis in original) ( c i ta ti on o mitted). Mother argues that the trial court based its finding on facts from Oscar ’ s case, such

as that mother was unsuccessfully discharged from several ser vices, tested positi ve for drugs, and had her pa re nt a l rights terminated to Oscar pu rsuant to su bs ec tion (O ). She a rgues t hat without th is information, there was insufficient evidence to
terminat e her rights to Frank based on subsection ( O ) . We disagree. Prior to the beginning of testimony, the trial c ourt , in reviewing fath er ’ s voluntary relinqu i s h me nt affidavit, ann ounced that it was taking judicial notice of
Oscar ’ s case. The court orally stated that t he judgment involving O s car did not order child supp ort and that mother ’ s rights to Oscar were termi nate d unde r subsection ( O )

. These facts were n ot d is puted and were gener ally kn own. See Shif flet , 462 S .W.3d at 539. The remaining facts that mother complains about came into evidence during mother ’ s tr ial re garding Frank. The Department supervisor16

testifi ed t hat mo ther was discharged from three d iffe re nt s ubstance abuse treat ment
pr ograms without completing them successfully

. She also testified that mother had tested pos itive for drugs. Additionally, mother ’ s drug test results were listed in the family ser vice plan and permanency report, both of which w er e admitted into eviden ce with out objection. Even without judicial notice of Oscar ’ s case, the record in this case contains sufficient evidence to support the trial c ourt ’ s decision to terminate mother ’ s ri ghts
to Fr ank under subsection ( O). At trial, t h e De partment supervisor testifi ed that th e agency created a family service plan for mothe r, which was filed with the co u rt an d made an order of the court. Moth e r was ordered to (1) complete pare nting and
anger management classes, (2) abstain from drugs a nd c om plet e a substanc e abuse

assessme nt and treatment, (3) refrain from criminal activity , (4) sign a rel ease of information, (5 ) parti ci pate in c ourt hearings, and (6) obtain and maintain stable housing and employment for si x mo nths

. The evidence reflec ts t ha t mother failed to c omplete all her court

- o rdered services

. With respect to employment, mother provide d paycheck stubs as proof of

em ploym ent for one week in March, three weeks in April, and two weeks in June.
T h e D epart ment super visor testified that t ho se were the only paycheck st ub s mother provid ed . The caseworker d d not believe the mother was employed based17

o n the information she receive d

. Mother d id not offer any further evidence to show that she was indeed employed f or s ix mon ths. With resp ect t o th e re quir ement that mother test negative for drugs , the caseworker testified that mother tested positive for drugs con ti n uall y th roughout th e case. She test ed positive for cocaine and he roin in her hair in February 2022
and she te sted positive for cocai ne i n M ay 2 022. Mother did not show up fo r tests in Ju ne and July of 2022. The family ser vice plan, which was admitted int o evidence , li sted ad ditional times that mother tested positive for drugs or did not appear for drug tes ting

. F inally, with respe ct to p sy c h osocial and psychiatric evaluations , t he caseworker sta t ed that mother did not follow the recommendations. Mother ar gues that this testim ony was conclusory, but the testimony demonstrated that mother d id
not comply with the service plan. See In re S

. N. P. , No. 04

- 20

- 00372

- CV, 2020 WL
7 36 5445 at *2 (Tex. App.

— San Antonio Dec. 16 , 2020, n o pet.) (m e m. op.) (caseworker ’ s testimony th at mother did not comp lete any required service s e xcep t for her psychosocial assess ment was a stateme nt of f act and not a co nc lu so ry statement.) Texas courts generally take a strict approach to subsection (O) ’ s application , In r e D. N. , 40 5 S.W.3d 863, 877 (Tex. App.

— Amaril lo 2013, no pet.), and a parent ’ s fai lure to complete one req uirement of her fa mily se rvice plan supports18

t er mi na tion under that subsection, In re J.M.T. , 519 S.W.3d 258, 2 68 (Tex. App.

— Houston [1st Dist.] 2 017, pet. denied). Nonetheless, mother argues that termination
unde r subse ction (O ) is not justified based on t he affirmative def en se fo und in Family Code s ub se ct ion 161

. 001(d): (d) A court may not order termination under Subsection (b)(1)(O) based on t he failure b y the parent to comply with a speci fic provision of a cou rt orde r if a p aren t proves by a preponderan ce of evidence tha t: (1) the parent was unab le t o comply with specific provisions of the court order; and (2) the parent made a good faith e f fo rt to comp ly with the order and the failure t o comply with the orde r is no t attrib utab le to any fault of the pa rent. T EX
. F AM
. C O DE § 16 1.001(d). M other arg ue s th at she did complete some requirements, as evidence of substantial compliance with the family s ervices pl an . O n appeal, m other does not argue that her failure to complete all th e fa mily service requirements was becaus e she w as unab le to comp ly nor doe s sh e argue that she made a good faith effort and her failure to comply was not attributable to he r . S ee id. On the contrary, t he record reflec ts that mother failed to abstain from u sing d rugs and that she failed t o appear for the last two drug tests bef or e tr ia l. The
record reflects that though mother participated in psychosocial an d psychiatric evalu ations, she did no t follow the recommendations from those evalu ations. The caseworke r te s t ified that mother was di scharged from substance abuse tr eatment19

due to l ac k of attendance and denial of her drug use

. She did not complete substance abuse treatment. Mother did not establish by a preponderance of the evidence that her fail ure to comp ly w ith the service plan was due t o her inability to complete it or n ot at tr ib ut able to her. S ee id. Applying the ap plicable standards of review, we hold that the evidenc e is legally and factually sufficient to support the trial c ourt ’ s predicate finding und er subsection (O). See T EX
. F AM
. C ODE § 161 .001(b) (1)(O). We furt her h ol d th at the evidence is lega lly and fa ctually sufficient to support a finding by the trial court that m other failed to carry her burden to prove, by a prepon derance of the evidence, t ha t she made a good

- faith effort to comply wi th the court or der and that
h er f ailure to comply with the court o rder is not attributable to her own fault. See id . § 16 1.00 1(d). We overrule the p ortion of mother ’ s issue challengin g the legal and factual

su ff iciency of the evidence to support the tr ia l court’s predi cate fi n ding u nd er subsection 161.001 (b) (1)( O). Bec ause only one predicate ground is needed to support a termi nation order, we need not address the remainder of mother ’ s issue challenging the le ga l and factual sufficiency of the evidence sup porting the
pre dicate findi ng u nd er subsection 161.001 (b)(1)(P). S ee In re A.V. , 113 S.W.3d 355, 362 ( T ex. 2003).20

C. Best
- I nter est F inding Mother challenges the legal and factual sufficie ncy of the trial court ’ s b es t

interest finding. 1. Legal Principles In Holley v. Adam s , the Supreme C ou rt of Texas identified several non

excl usiv e factors that we consider when determining whether the termination of a parent ’ s rights is in the child ’ s be st interest

. 54 4 S.W.2d 367, 371

– 72 (Tex. 1976). The factors include: (1) the chi ld ’ s desires ; (2) t he c hi ld ’ s current and future physical and emot ional needs; (3) the current and future physical danger to the child; (4) the parental abilities of the perso n seeking custo dy; (5 ) w heth er progr ams

are available to assi st the person seekin g cus tody in promot in g th e best interests of the child; (6) the pl ans for the child by the person seeking custody; (7) the stability of the home or proposed placement; ( 8) the acts or omissi ons of th e pa rent tha t
may indicate the parent

- child relationship is no t prope r; and ( 9 ) an y excuse for acts or omissions of the par ent. Id. These factors are not exhaustive, and it is not necessary that the Depar tment prove all these factor s “ as a co nditi on preced ent to parental termin ation. ” In re C.H. , 89 S.W.3d 17, 27 ( Te x. 20 02 ). The ab se nc e of evidence concerning some of the factors does n ot preclude a factfinder f rom formin g a firm belief or conviction that termination is in the childr en ’ s best21

inter est. In r e A. C. , 394 S.W.3d 633 , 642 (Tex. App.

— Houston [1st Dist.] 201 2, no
p et.).
I n a dd ition, the Family Co de sets out factors that courts should consider i n determining whether a child ’ s parent is willing and able to provide the child with a safe environment, including: (1) the child ’ s age and phy si ca l and mental vulnerabilitie s; (2) th e fr equ ency and nature of out

- of

- home placements; (3) the magnitude and f

requency of harm to the child; (4) whether the child has be en the victim of repeated harm after the initi al interventio n by the Department ; (5) whe ther the re is a history of abus ive o r as saultive cond uct o r subst ance abuse by the child ’ s family or others who have ac cess to the child ’ s home; ( 6) the results of psyc hiatric, psychological, or developmental evaluations of the child, the child ’ s
paren ts, other family members, or others wh o ha ve access to the child ’ s home; ( 7 ) the willingness of the child’s fami ly to seek out, a ccept, and complete counsel ing services; ( 8 ) the wi llin gness an d ability of the child ’ s family to effect
pos itive enviro nmental and personal changes within a reasona bl e pe rio d of time ; and ( 9 ) whether the child ’ s family demonstrates adequate parenting skills, including providing min imally adequate care for the child ’ s health and nutri tional needs, care consisten t wit h t he c hild ’ s physical an d psychological development , gu id anc e and supervision consistent with the child ’ s safety, a safe physical home22

enviro nment, and an understanding of the child ’ s n eeds and cap abilitie s. T EX
. F AM
. C ODE § 263.307(b ) ; In re A.C. , 560 S.W.3d 6 24, 631 n.29 (Tex. 2018). The best

- interest a na ly si s may consider circumstantial ev idence, subjective factors, and the totality of the evidence as well as the direct evidence. In re Y.G. , No. 01

- 22

- 00181

- CV , 20 22 W L 3362953 at * 1 3 (Tex. App.

— Houston [1st Dist.] Aug. 16 , 202 2 , pet. denied) (mem. op.) (c it in g In re B. R. , 456 S.W.3d 6 12, 616 (Tex. App.

— San Antonio 2015, no pet.). “ A tri er of fact may measure a parent ’ s future condu ct by h is past conduc t an d dete rmin e whether terminat ion of parental rights is in the child ’ s best i nte res t. ” B.R. , 456 S.W.3 d at 6 16 ; see C.H. , 89 S.W.3d at 28 (st ating that past pe rformance as parent “ c ould certainly have a bearing on [ parent ’ s ] fitness to prov ide for [the c hild] ” and indi cating courts shou ld consider prior history of child negle ct in b est

- i nterest analysis )

. 2. A n a ly sis Multiple factors support the trial court ’ s finding that termination of m other ’ s parental rights to Frank was in the child ’ s best interest.
T he ev idence sho wing that m o ther f ailed to complete all t he tasks and

serv ic es re quire d in her service pl an n ot only support s the predic ate findi ng, but it also support s the trial court ’ s best

- interest finding. See In re E.C.R. , 402 S.W .3d 239, 249 (Tex. 20 13) (holdin g th at evidence that parent fail ed to complete court ordered se rvices can support best

- intere st f in ding). In short, “ [a] fact finder m ay23

infer from a parent ’ s failure to take the initiative to complete the services required to regain possessi on of [ her ] child tha t [ s ] he does not h ave the ability to motivate [ herself ] to see k out a vailable re source s ne ed ed now or in the future. ” J.M.T. , 519
S.W .3d at 270. Despite being required to participate in substanc e abuse treatment and
ref rain from illeg al drug use to be reu nited with Frank, m o th er did not r efra in from using illegal drug s . S he tested pos itive f or d rugs in May of 2022 , three months before trial. She did not appear for drug testing in June or July of 2022. See In re
W.E.C. , 110 S.W.3d 231, 239 (Tex. App.

— Fort Worth 2003, n o pet.) (rec ognizing
tha t fa ctfinder could reasonably infer that par ent ’ s fa il ur e to c omplete scheduled screenings indicated she wa s avoiding testing because she was using drugs). She also tested positive in June, July, Au gust , and October of 2021. Additio nally, the Depar tment su perv isor te stified that mother was unsuccess fully di sc ha rged f r om sub stance abuse treatment . M o ther ’ s termination from the program and her positive drug test three months before t rial are particular ly probative because Frank was

rem oved from mother ’ s care d ue to m other ’ s drug use

. S ee T EX
. F AM
. C ODE § 26 3.3 07 (b )(1 0), (11) ( stati ng courts may consider willing n ess and ability of the chi ld ’ s family to seek out, accept, a nd complete counseling services a nd willingne ss and ability of chil d ’ s family to effect pos itiv e environmental and personal changes wit hin r eas on ab le tim e); Hol ley , 544 S.W.2d at 372 (listing as24

best

- interest factors, programs available to assist these individuals to promote best interest of child and acts or omission o f pa rent that ma y indicate par ent

- child relationship is not prope r); J

. M. T

. , 5 19 S .W.3d at 270 (reco gnizing that father ’ s failure to re frain from illegal drug use and complete substance abuse counsel ing and individual ther ap y supported best

- interest finding )

. As we have p reviously reco gnized, “ [ p ] arental drug abuse reflects poor jud gm en t and ma y be a factor to consider in determining a chil d ’ s best interest. ” Id. ; see T EX
. F AM
. C ODE § 263.307(b ) (8) (stating courts may conside r whether there is history of substa nce abu se by c hild ’ s fam ily or others who have access to
the child ’ s ho me)

. Mo ther ’ s d rug abu se is relevant to multiple Holley factor s, including her parenting abilities and the stability of her home as well as Frank ’ s

e motional and physical ne eds now and in the future and the ph ysic al danger in which Frank could be plac ed no an d in the fut ure. S e e Holley , 544 S.W.2d at 37 2 ( fa ctors two , three, four, a nd seven); I n re N.J.H

. , 575 S.W.3d 822, 834 (Tex. App.

— Houston [1 st Di st.] 2018, pet. denied) (recognizing pattern of dr ug abuse

r elev ant to m ultiple Holley factors). The trial co ur t could re asonabl y infer that mother ’ s drug use would con tinue in the future

. Mother used drugs while pregna nt w ith Frank, and he was born with drugs in h is system . M o ther h ad posi tive drug t ests througho ut t he pendency of th e case. M other denie d usin g d ru gs to the casewor ker after testing positive, and she25

was released from substance abuse treatment for being i n denial of her drug use and lack of attendance. The Department referred mother to multiple serv ice providers during the pendency of the c ase. Eve n th ough she knew h er parental rights were in jeop ardy, mother failed to complete the counseling provided to h er. The evidence supports that mothe r ’ s history of illegal drug use, her positive drug
tests, an d he r lack of completion of therapy suppo r ted a n i nf er ence by the tri al
court tha t m o ther was at risk for continuing d rug use. S e e J

. M.T. , 519 S.W.3d at 269

. T he evide nce regardi ng mother ’ s inco me was scant. Mother provided a few paychecks , coveri ng five total weeks during the pendency of the cas e. Th e D ep ar tment supe rvisor testified that she bel ieved mother worked one or two day s a week, based on the amount s listed on her pay stubs. The superviso r also questioned the veracity of two of the pay stubs provided by mother, statin g that they did not pri nt wi th th e same marks as the other three. Mot her ’ s lack of employme nt is probative of F rank ’ s b est interest because, “ [a] parent who lacks stability, in come, and a home is unable to prov ide for a child ’ s emotional and physical needs.” In re
J.R.W. , No. 14

- 1 2

- 0 085 0

- CV , 2013 WL 50732 5, a t *9 (Tex. App.

— Houston [14th Dist.] Feb. 12, 2013, pet. denied) ( mem. op.); see Holley , 544 S.W.2d at 372 ( bes t

interest factors include stability of home and child ’ s physical and emotional needs); see also In re M. R. , 243 S .W .3d 80 7, 8 21 (Tex. App.

— F ort Worth 2007,26

no pet.) ( “ A parent ’ s dru g use, inability to provide a stable home, and fa ilure to comply with a family servic e plan support a finding that term ination is in the best
interest of the child. ” ). In contrast, the un co ntr ove rt ed evidence showe d th at, at the time of trial, the paterna l grandmother , who h ad cared for Frank for all his life, had a s afe and stable home. The paternal grandmother lived with her husband an d together they cared for Frank and three of his sibl in gs. Fr a n k ’ s aunt also mov ed i nto the home to assist
in caretaki ng. The witnesses testi fied tha t Frank was bonded with his grandparents and his siblings and that all his needs were me t. The paternal grandmother hoped to adopt Fra nk. The evidence re gardin g t he pat er na l grandparent s uppo rt s the trial court’s b est

- interes t finding under the fol lowing f actors: the emotional and physical needs of the child now and in the future and the stab ility of the home or proposed placement. See Holley , 544 S.W.2d at 372 ( fa cto rs tw o and seve n). We
not e that a child ’ s need for a perman ent home has been “ reco gnized a s the paramount consideration in a best interest determin ation. ” In re B.J.C. , 495 S.W.3 d at 29, 39 (Tex. App.

— Houston [14th Dist.] 2016, no pet.). Frank was t hi rte en m on th s old at the t ime of trial. The Holley fact or regarding the desires of the child is neutral in this case. See Holley , 544 S.W. 2d at 372 (fac tor one). Fr ank ’ s age does weigh in favor of the best

- interest determination. See T EX
. F AM
. C ODE § 263. 307 (b )(1) ( pr oviding that c ourt may27

consider child ’ s age and physical and mental vulnera bilities in best

- interest determination); J. M.T. , 519 S.W.3d at 2 70 (noting 14

- month

- old child ’ s age weighed in favor of trial court ’ s finding that termina tion was in b est i nter es t ) ; see al so I n re A.L.B. , No. 01

- 17

- 00547

- CV, 2017 W L 6519969, at * 5 ( Tex. App

. — Houston [1st Dist.] 2 017, pet. denied) (mem. op.) (stating ch ildren ’ s yo ung ages, five and six years old, rendered them “ v ulnerable if left in the cust ody of a pare nt

un able o r unwillin g to protect them or to attend to their needs ” ). When a child is
to o young to express his desires, the factfind er may consider that the child h as bonded with the foster family , is well cared for by them, and has spent mini mal time with his pare nt

. I

n re J. D. , 436 S.W.3d 105, 118 (Tex. App.

— Houst on [14th Dist.] 2014, no pet. ). On balance, the evidence showed that the applicable statuto ry factors and Holley factors weigh in favor of the trial court ’ s best

- interest finding

. A fter viewing all t he e vi de nce in t he l ight most favorable to the best

- interest finding , we

conc lude tha t the evidence was sufficiently clear and convincing that a rea sonable
fac tfinder could have formed a firm belief or conviction th at termination of the
p arent

- child r elati onsh ip b etween m o the r and Frank was in t he child ’ s best interest

. We overrul e m other ’ s challenge to the best interest finding.28 C onclusion We a ffirm the trial court ’ s decree of termi nation.

Peter Kelly Justice Panel con sists of Justi ces Ke ll y, Farri s, a nd Radack. 2

2 The Honorable Sherry Ra dack, Senior Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.