## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00061

- CV

IN THE INTEREST OF B.C., A CHIL D

On Appeal from the 307th District Court Gregg County, Texas Trial Court No. 2019

- 832

- DR

Before Morriss, C.J., Burgess a nd Stevens, JJ. Memorandum Opinion by Justice Burgess2 

### ME MORANDUM OPINION The Department of Family and Protective Services (the Department) filed a petition to terminate Mother’s parental rights to her son, eight

- year - old Brandon

. 1 After a bench trial, th e trial court terminated Mother’s parental rights after finding that (1) she knowingly placed or allowed the child to remain in conditions or surroundings that endangered his physical or emotional well

- bein g , (2) she engaged in conduct or knowingly p laced the child with persons who engaged in conduct that endangered his physical or emotional well

- being, ( 3 ) she failed to comply with the provisions of a court order that specifically established , under Section
161.001 (b)(1)(O), the actions necessary for her t o obtain the child’s return, ( 4 ) s he used a controlled substance in a manner that endangered the health or safety of the child , as described in Section 161.001(b) (1)(P) of the Texas Family Code, and ( 5 ) termination of pa rental rights was in the c hild ’s bes t interests. See T EX
. F AM
. C ODE A NN
. § 161.001(b)(1)(D), (E), (O), (P), (b)(2) (Supp. ). In her sole point of error on appeal, Mother asks whether termination of her parental rights was “ within the best interest of” her son. Because Mother does not expres sly question the sufficiency of the evidence supporting the trial court’s finding and because she recites evidence showing that the trial court ’s ruling was supported by legally sufficient evidence , we interpret her poi nt of error as a challenge to the fac tual sufficiency of the evidence supporting the best

interest finding. Because we conclude that the evidence was factually sufficient to support the

1 We use p seudonyms to protect the identity of the child. See T EX
. R. A PP
. P. 9.8.3

finding that termination of Mother’s parental rights was in Brandon ’s best interests, we affirm the trial court’s judgment.
I . Standard of Review

“ The natural right existing between parents and their children is of constitutional dimensions.” In re L.E.S. , 471 S.W.3d 915, 919 (Tex. App.

— Texarkana 2015, no pet.) (quoting Holick v. Smith , 685 S.W.2d 18 , 20 (T ex. 1985)). “ Indeed, parents have a fundamental right to make decisions concerning ‘the care, custody, and control of their children.’” Id

. (quoting Troxel v. Granville , 530 U.S. 57, 65 (2000)). “Because the terminat ion of parental rights impl i ca tes fun damental intere sts, a higher standard of proof

— clear and convincing evidence

— is required at trial. ” Id. (quoting In re A.B. , 437 S.W.3d 498, 502 (Tex. 2014)). This Court is “ required to

‘ engage in an exacting review o f the entire record to dete r mi ne if t he evidence is

. . . sufficient to support the termination of parental rights. ’ ” Id. at 919

– 20 (quoting In re A.B. , 437 S.W.3d at 500). “[I]nvoluntary termination statutes are strictly construed in favor of the parent .” Id. at 920 (quoting In re S.K

. A. , 236 S.W.3d 875, 900 (Tex. App.

— Texarkana 2007, pet. denied) (quoting Holick , 685 S.W.2d at 20)). “In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statut ory gro und for termination and that termination is in the child’s best interest.” Id. (citing In re E.N.C. , 384 S.W.3d 796, 798 (Tex. 2012)). “ ‘ Clear and convincing evidence’ is that ‘ degree of proof that will produce in the mind of the trier of fact a f

irm bel ief or conviction as to the truth of the allegations sought to be4

established.’” Id. (quoting T EX
. F AM
. C ODE A NN . § 101.007 ); see In re J.O.A. , 283 S.W.3d 336, 344 (T ex. 2009). “This standard of proof nece ssarily affects our review of the evidence.” Id. “There is a strong presumption that keeping a child with a parent is in the child’s best interest.” In re J.A.S. , Jr. , No. 13

- 12

- 00612

- CV, 2013 WL 782692, at *7 (Tex . App.

— Corpus Christi Feb. 28, 2013, pet . denied) (mem. op.) (citing I n r e R.R. , 209 S.W. 3d 112, 116 (Tex. 2006) (per curiam)). “Termination ‘can never be justified without the most solid and substantial reasons.’” In re N.L.D. , 412 S.W.3d 810, 822 (Tex. App.

— Texarkana 2013, no pet.) (quoting Wiley v. Spratlan , 543 S.W.2d 349 , 352 (Tex. 1976 )). In determining the best interests of the child, courts consider the following Holley factors: (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) t he emotional and physical dang er t o the child now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the programs available to assist t hese individuals, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or o mis s ions of the par ent that may indicate the existing parent

- child relationship is not a proper one, and (9) any excuse for the acts or omis sions of the parent. Id. at 818

– 19 (citing Holley v. Adams , 544 S.W.2d 367, 371

– 72 (T ex. 1976)); see In re E.N.C. , 384 S.W .3d 796, 807 (Tex. 2012); see also T EX
. F AM
. C ODE A NN
. § 263.307(b). “There is no requirement that the party seeking termination prove all nine factors.” In re N.L.D

. , 412 S.W.3d at 819 (citing In re C .H

. , 89 S.W.3d 1 7, 27 (Tex. 2002) ). Also , we may consi der eviden ce used to support the grounds for termination of parental rights in the best

- interest analysis. In re C .H. , 89 S.W.3d 17, 28 (Tex. 2002)

. We interpret Mother ’s complaint as a challenge to the factual su fficiency of the evidence.
“I n our rev iew of fac tual sufficiency, we give due consideration to evidence the trial court could5

have reasonably found to be clear and convincing .” In re L.E.S. , 471 S.W.3d at 920 (citing In re
H.R.M. , 209 S.W.3d 105, 109 (Te x. 2006) (per curiam)). “We c onsider only th at e vidence the fact

- finder reasonably could have found to be clear and convincing and determine ‘ whether the evidence is such that a fa ct[

- ]finder could reasonably form a firm belief or conviction about the
tru th of the

. . . allegations.’” Id. (quoting In r e H.R. M. , 209 S.W.3d at 109 (quoting In re C.H. , 89 S.W.3d at 25) (citing In re J.F.C. , 96 S.W.3d 256, 264, 266 (Tex. 2002) ) )

. “If, in light of the entire record, the disputed evidence that a reasonable fact [

- ] finder could not have credi ted in favor of th e f

inding is so significant that a fact [

- ] finder could not reasonably have formed a firm belief or conviction, then the evidence is factually ins ufficient.” Id. (quoting In re J.F.C. , 96 S.W.3d 256, 266 (T ex. 2002) ). To make this dete rmination, we undert a ke “an exacting review
of the en tire record with a healthy regard for the constitutional interests at stake.” Id. (quoting
In re A.B. , 437 S.W.3d at 503 (quoting In re C.H. , 8 9 S.W.3d at 26)). “Despite th e profound constitutional inte rests at stake in a p roceeding to terminate parental rights, ‘ the rights of natural parents are not absolute; protection of the child is paramount.’” Id. (quoting In re A.V

. , 113 S.W.3d 355, 361 (Tex. 2003) (quoting In re J.W .T

. , 872 S.W.2d 189, 195 (Tex. 1994)) (citing In r e M.S. , 115 S .W.3d 534, 547 (Tex. 2003) ) )

. “A child’s emotional and physical interests must not be sacrificed merely to preserve parental rights.” Id

. (quoting In re C.A.J

. , 459 S.W.3d 175, 179 (Tex. App.

— Texarkana 2015, no pet.) (citi ng In re C.H

. , 89 S .W .3d at 26)).6

II . The Evidence at Trial The evid ence at trial showed that Mother was addicted to drugs

. Alisha Santiago , the
D epartment ’s conservatorship worker , testified about Mother’s history with Child P rotective Services (CPS)

. Mot her admitted tha t she did not have cust ody of three other children and was jail ed for failing to pay child support

. Santiago said that CPS was involved in another pending

case involving M other after both she and her youngest child t ested positive for a mphetamine

. As for Br and o n, Adam Brown, an inves tigator with the D epartment, sai d that he was previously removed from M other ’ s care because of her drug use and was supposed to be in the custody of his Father. Prior to the last rem oval of the child, Brown testified that he r ec eiv e d an intake alleging th at Brandon was living with M othe r and multiple unknown roommates , that

someone had sexually abused Brandon , and that he was acting out sexually in class by “rubbi ng his private areas on other girls’ bottoms. ” Brown spoke with Br and o n’s schoolteacher, who said that Brandon started school nine weeks late , had accumulated sixteen absences, was behind academically , and had a lot of behavior problems

. Santiago testified that Brandon was fo und in unsafe conditions with people who m he d id

n ot know that were engagi ng in drug use. Mother admitted that she had left Brandon in the care of someone in a hotel room where syringes were found

. Brown spoke with Brandon, who said that he was left alone by M other with people he did not know

. Br an don also said he had witness ed domestic violence between his parents, including an incident where F ather tried to run
M other over with a car , and B rown found police reports confirming the domestic disturbance

. According to B rown, F at her was worried that M oth e r was back on drugs. B r own spoke with7

M other , who admit ted that she h ad used methamphetamine daily for several months and mari h uana on the day they spoke

. Santiago believed that M other ’ s drug use , exposur e to family violence, a nd late enrollment in s cho o l endangered Brandon’s physical or emotional well

- being

. Brandon was removed from Mother and returned to Father’s care. Santiago testified about the court

- orde red family s ervice plan s for M other and said that she failed to co mplete a second ETCADA 2 ass e ssment , in

- p atient drug treatment , parenting classes , and individual counseling ; did not maintain stable employment ; was homeless ; and engaged in criminal activity

. Santiago also testified that M other faile d to submit to random drug testing on ninet ee n o c casions and tested positi ve for drugs during the pendency of the case. Mother admitted that she had not completed her family service plan, including in

- patient treatment for her methamphetamine add iction. S he said that th e treatment required her to st op
t aking S uboxone , a synthet ic drug used to treat drug addicti on, but that she could not “ just stop taking it.” Mother said that she had no transportation to make appointments and that the
COVID

- 19 pandemic also a ffect ed the availability of services b u t adm i tted that she “ got to a point that [ she ] got really discouraged .” She admitted that she used methamphetamine the day before trial , had previously parented Brandon while under the influence of drugs , and c ould n ot
pr ovide the child with a positive ho me . M other also said that she was living in a hotel room , received u nemployment, and clean ed house s when she was able to , which was not very often

. Although she could not verbalize the impact of her behavior on the child , Mother knew that her unstable li vi ng e nvironment and drug use affec ted Bran don to some degree

.

2 ETCADA is the East Texas Council on Alcoholism and Drug Abuse.8

Accor ding to Santiago, M other love d Brandon , a nd the child knew who she was. Even

so, Santiago said Mother did not regularly visit Brandon and failed to main tain significant contact with him. Af

t e r her in

- person visits were su spended, Santiago reported that Br andon

w ould get upset and cry after telephone visits because he missed Mother and was upset about the circumstances. Santiago testified that teleph one visits were suspended after the ch il d s a id he no longer wished to spea k to M other and, a s a result , Bran don did not speak to M other for four months

. M other said that she had a strong bond with Brandon and loved him. Father testified that
M other was “ rea lly sweet and a really good mother w it h o ut the drugs ” and made sure that Brandon was fed and taken to schoo l

. He could not say whether it was in Brandon ’s best interest for her parental rights to be terminated

. Father also added that Brandon needed M oth er , that Brandon would “ w an t his da dd y a n d his mother ,” an d that the case had “ been rea lly hard for
him .” Robert Mayfiel d, a family friend, testified that M other was an exemplary mo m who loved Brandon and cared for him well

. According to Mayfield, M other and Brandon were inseparable and s ha re d a tremendous bond

. Even so, Santiago testifie d that it was in Brandon’s best in terest s th at Mother’s parental rights be terminated and that F ather be granted so le managing conservatorship

. Santiago said that Brandon was in the care of his F ather si nc e t h e pendency of the case and was a ttending schoo l regularly , meeting his education al requirements , improving his behavior , and generally thriving. Grant Malone, a Court Appoi nted Special Advocate (CASA), testifi ed that he ha d no9

concerns about F ather ’ s pa r e ntal ability and that it was in the child ’s be st interest for Mother’s parental rights to be terminated and for Father to be appointed so le managing conservator

. After hearing this evidence, the trial court te rminated Mother’s parental rights.
III . An al y s is of the Holley Factors As for the first Hol ley factor, there was evidence in the record that, although Brandon did not wish to visit with Mother over the phone, Mother and Brandon loved each other and had a strong bond. Fath er testified that Bran do n w o uld want to be with Mother. As a result, we f ind that the first Holley factor w eighs against terminating Mother’s parental rights . Ev en so, we find the remaining factors weigh in favor of termination. Consi dering the second factor, Brandon was an e ig h t

- year - old child who was behind academically, h ad witnessed domestic violence , an d was experiencing behavioral issues, including acting out sexually in class. Father testified that Brandon, though improving, wa s still having a h ard time. Even though t he c hild’s emotional needs were great, Mother had no stable job , no transportation, and minimal income

. Mother said at the time she tes tified , “ Right now,
I’m staying in

. . . t he Motel 6,” but Santiago testified that s he was homeless during the pendenc y of t he case. See In re C.A.J

. , 459 S.W.3d 175, 183 (Tex. App.

— Texarkana 20 15, no pet.) ( “A parent who lacks s tability, income, and a home is unable to provide for a child ’ s emotional and physical needs.” (quoting In re J.T.G

. , No. 14

- 10

- 00972

- CV, 2012 W L 1 7 1 012, at *17 (Tex. App.

— Houston [14th Dist.] Jan. 19, 2012, pet. denied) (mem. op.)) )

. Mother knew that her unstable living envi ronment and drug use affected Bran don and admitted that she could not10

currently pro vide B randon with a positive home

. We f in d t h at the second Holley factor weigh s in favor of termination. In evaluati ng the third through eighth Holley factors, we recognize that “[e]vidence of past misconduct or neglect can be used to measure a parent ’ s f uture conduct.” Id

. (quoting In re
I.R. K. N

. , No. 10

- 13

- 00455

- CV, 2014 WL 2069281, at *7 (Tex. App.

— Waco May 15, 2004 , pet. denied) (mem. op.) ) ; Ray v. Burns , 832 S.W.2d 431 , 435 (Tex. App.

— Waco 1992, no writ) (“Past is often prologue.”). “A parent ’ s inab ility to provide adequate care for her c hi ld , lack of parenting skills, and poor judgment may be considered when look ing at the chil d’ s best interests.” N.L.D

. , 412 S.W.3d at 819 (citing In re C.A.J

. , 122 S.W.3d 888, 893 (Tex. App.

— Fort Worth 2003, no pet .)). “ [ P ] arental drug abuse is also a f ac to r to be considered in determining a child ’ s best interests.” Id. (citing In re M.R

. , 243 S.W.3d 807, 820 (Tex. App.

— Fort Worth 2007, no pet.)). The record showed that Mother had a l ong t ime drug addiction, which had led to her loss of custody of other ch il d r en, including one who tested positive for amp hetamine. Brandon was also previou sly removed from Mother due to her drug use. This time w hile in her care, Brandon was found i n a ho tel room with strangers who had syringes and , according to Santiag o, w e r e engaging in drug use. Mother , who told Brown that s he used methamphetamine daily, admi tted that she had parented Brandon while under the influence of drugs

. Mother’s lengthy histor y of drug abuse and poor decisions established that she had been a d an g e r to Brandon, and Santiago testified that Mother’s add iction and poor life choices would continue to endanger the child.11

Also, Mother did not complete her family service plan, includ ing parenting classes and
in

- patient substance

- abuse treatment , an d fa i l ed to avail herself of individual counseling because sh e became discouraged

. She did not conquer her drug addiction , which was necessary to becoming a capable parent to Brandon

. Moth er ’ s failure to ensure that Brandon attended school while in her c a r e, u se of drugs during the pendency of this case , including the day before trial, and failure to attend in

- person visitations indicate d that the existing parent

- child relation ship with Brandon wa s no t a proper one. At the time of trial, Mother had no st ab le h ome and presented no cogent plan for Brandon’s return. On the oth er hand, the Department showed that Father was a capable parent who ca red well for Brandon. We find that Holley fact or s three thro ugh eight weigh in favor of terminat ing Mother’s pare nt al r ights

. As for the last Holley factor, Mother cited transport ation issues and COVID

- 19 as the

reas on for failing to complete some por tions of the family servi ce plan . Even so, Mother had no excuse for her continued methamphetamine use . Her testimony t ha t she used the drug on the day before trial only served to emp hasize her addiction

. Con sidering the Holley factors and vie wing all the evidence, we conclude that the trial court could have reasonably formed a firm belief or conviction that ter mi n ation o f Mother ’ s parental rights was in Brandon ’s best inte rests. See T EX
. F AM
. C ODE A NN
. § 161 .001(b)(2). As a result, we overru le Mother’s sole point of error.12

IV. Conclusion We affirm the trial court ’ s judgment.

Ralph K. Burgess Ju st i ce D at e Submitted: October 29, 2021 Date Decided: November 4 , 2 0 2 1