Opinion issued July 31, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00113-CV ——————————— IN THE INTEREST OF A.S., A CHILD
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2013-00087J
MEMORANDUM OPINION
This is an appeal from the termination of the parental rights of a mother,
C.L.H., with respect to her daughter, A.S. See TEX. FAM. CODE ANN. § 161.001
(West Supp. 2012). On appeal, the mother argues that the evidence is legally and
factually insufficient to support the trial court’s findings that she committed a
1 predicate act required for termination and that termination was in her daughter’s
best interest.
We affirm.
Background
When A.S. was born on January 4, 2013, both she and her mother tested
positive for opiates and barbiturates. The hospital notified the Department of
Family and Protective Services, which was already acquainted with the mother by
reason of its involvement in cases involving her older children who were not living
with her the time A.S. was born. The Department took the newborn A.S. into foster
care. An affidavit sworn by a caseworker for the Department and filed in support
of removal stated that the mother had taken hydrocodone, a narcotic pain
medication, during pregnancy against medical advice. The caseworker attested that
she was informed by an assistant to the mother’s primary care physician, Dr.
Tanveer Syed, that the mother had called the office to request a hydrocodone refill,
but the doctor refused to call in the prescription based upon the belief that the
mother was pregnant. The staffer also communicated that hydrocodone is
“absolutely not to be taken” during pregnancy, and that Dr. Syed “had great
concerns” that the mother “had a problem with pain medication.”
The affidavit also explained the mother’s prior history with the Department
involving her older children. This included physical abuse to a daughter, who was
2 injured as an infant when the mother had an argument with that child’s father. The
affidavit stated that parental rights were terminated with respect to that child, who
was adopted. Another incident involved sexual abuse to another daughter
perpetrated by the mother’s then-boyfriend. The affidavit stated that the mother
was “not willing to protect the children and not have [the boyfriend] around the
children and continues to allow him to live in the home.” As a result of that
incident, the mother relinquished her parental rights to six of her children, who
were placed with a family member. Finally the affidavit stated that the mother’s
rights were terminated as to another baby for neglectful supervision based on
allowing the father of that child to care for her, despite his history of sexually
abusing another child.
At a show-cause hearing, the caseworker testified that A.S. was the mother’s
tenth child and she had voluntarily relinquished her parental rights to three of those
children. In addition, both the mother and the baby tested positive for hydrocodone
when A.S. was born. The mother told the caseworker that she had a prescription
and showed her an empty bottle, but the doctor’s assistant told the caseworker that
the mother’s hydrocodone prescription was “not valid.”
The evidence at the show-cause hearing focused on whether the mother had
a valid prescription for hydrocodone and whether she had lied to her doctor about
terminating her pregnancy in order to obtain the medication. Dr. Syed testified that
3 she initially prescribed hydrocodone to the mother as a pain reliever for a tooth
abscess. Medical records admitted at the show-cause hearing showed that the
mother had a positive pregnancy test several months earlier, but she had informed
the doctor that she intended to terminate the pregnancy. The records also showed
that, contemporaneous with the initial hydrocodone prescription, she informed the
doctor that she was not pregnant and was using birth control pills. Dr. Syed
testified that the mother did not appear pregnant at the time when she was seen for
the tooth abscess. The doctor also testified that the mother informed her that she
had terminated the recent pregnancy.
Dr. Syed said she would “probably not” have prescribed hydrocodone to the
mother if she had known she was still pregnant, testifying that hydrocodone is “a
category three substance where no ill effects are known of the hydrocodone but
there are category B drugs . . . like Tylenol or ibuprofen” that could have been
given. When questioned by the court, Dr. Syed agreed that the mother lied about
the abortion to obtain hydrocodone.
The mother also testified at the show-cause hearing. She denied lying to Dr.
Syed about being pregnant or having had an abortion, saying that her pregnancy
was visible by that time. The mother also denied specifically asking Dr. Syed to
prescribe hydrocodone, testifying that she simply told the doctor that she was in
pain and needed antibiotics for an infection. The mother saw Dr. Syed twice in
4 September 2012, just over two weeks apart, and Dr. Syed gave her two
prescriptions, each for 40 pills of hydrocodone. The mother testified that she used a
total of 58 pills over a six-week period, “as needed for pain.” She stated that the
doctor did not advise her that hydrocodone could harm an unborn child.
The mother also admitted taking phenobarbital and Tegretol during her
pregnancy, both prescribed by Dr. Syed, to prevent seizures from which she had
suffered since childhood. She did not know of any side effects of phenobarbital
and did not recall if the accompanying product literature advised the patient to seek
medical advice with regard to use of the medication during pregnancy.
According to the mother, A.S. was “perfectly fine . . . perfectly healthy and
normal,” and the hospital social worker believed that A.S. should have been
allowed to leave the hospital with her. The mother testified that she was prepared
to care for an infant—she had a car seat, a crib, clothes, diapers, and an apartment.
The father of A.S. also testified at the show-cause hearing. He said that he lived
with the mother, worked as an auto mechanic, supported the mother, and would be
able to help care for the baby if she were returned home.
The trial court and the attorney ad litem discussed the mother’s credibility,
specifically noting that she testified that she would never give up a baby despite
having previously relinquished her parental rights to several other children. The
court named the Department as temporary managing conservator.
5 The Department created a family service plan which required the mother to
take numerous actions including therapy, drug testing, parenting classes, attending
hearings and meetings, maintaining housing, remaining drug-free, demonstrating
financial responsibility, visiting her child, and completing 90 days of inpatient drug
treatment. The plan made clear that her ability to visit with A.S. depended on her
participation in services. The mother refused to sign the family service plan or
participate in most services, and in March 2013, the trial court approved the family
service plan and incorporated it into a status hearing order “as if set out verbatim.”
The court ordered the mother “to timely comply with each and every task of that
family service plan.” The status hearing order also stated:
THIS COURT ADVISES THAT THE FAMILY SERVICE PLANS, APPROVED AND INCORPORATED BY THIS ORDER AS SET FORTH ABOVE, SPECIFICALLY ESTABLISH THE ACTIONS NECESSARY FOR THE PARENTS TO OBTAIN RETURN OF THE CHILD WHO IS IN THE TEMPORARY MANAGING CONSERVATORSHIP OF THE DEPARTMENT, AND THIS COURT FURTHER ADVISES THE PARENTS THAT FAILURE TO FULL[Y] COMPLY MAY RESULT IN THE RESTRICTION OR TERMINATION OF HIS OR HER PARENTAL RIGHTS.
Although the mother refused to complete most of the services included in
the family service plan, she did submit to drug testing in January, March, and July
2013. The January hair follicle test was positive for phenobarbital and
hydrocodone; the March test was positive for barbiturates, codeine, hydrocodone,
6 and morphine; and the July test was positive for barbiturates and benzodiazepines
(oxazepam, nordiazepam, and temazepam).
Meanwhile, A.S. thrived in foster care and became bonded to her foster
family. The Department maintained a primary goal of unrelated adoption and a
concurrent goal of relative adoption.
The termination hearing was tried to the court in January 2014. The mother’s
family service plan, the status hearing order incorporating the family service plan,
the mother’s drug test results, the mother’s and child’s medical records, and the
transcript from the show-cause hearing were admitted without objection. The court
also admitted the two doctor’s reports that were previously admitted at the show-
cause hearing.
The father testified that he had been in a relationship with the mother and
lived with her for four years, which included the time when she relinquished her
parental rights to her older children. He was aware that the mother had a problem
with cocaine in 2011, before she became pregnant with A.S., but no further
information or testimony about the nature, extent, or duration of, or any treatment
for or rehabilitation from this problem was introduced.
Yet the father denied that the mother had a problem with prescription drugs.
Although he could not identify all of the medications the mother was taking, he
testified that she went to doctors to obtain prescriptions and did not take any drugs
7 that were not prescribed to her. He also testified that he attended prenatal medical
appointments with the mother and that he was present when she saw Dr. Syed. He
testified that on the occasion when Dr. Syed prescribed hydrocodone, the mother
did not tell the doctor she was going to have an abortion and did inform the doctor
that she was pregnant. Nevertheless, on cross-examination, the father agreed that it
would not be “healthy” for the mother to take hydrocodone while pregnant and that
he believed she was “wrong” to do so.
The father also provided testimony that tended to show the parents’
readiness for the return of their child. He testified that he and the mother had lived
in the same apartment for more than three years. Photographs taken the day before
trial showed the condition of the apartment, which was clean, tidy, and furnished.
They also showed baby supplies, clothing, and food. He said the apartment was
“very much ready” for the baby. He testified that they had a bed for the baby, but
he acknowledged that he had not assembled it because it was “stressful” to see the
empty crib. He also testified that they had a car seat, diapers, clothing, food, and
other baby supplies.
Finally, the father testified about the relationship of the mother to A.S. and
his stability as a wage-earner. He said that A.S. responded “very well” to the
mother during the parents’ sole visit with the child since her birth, which occurred
approximately one month before trial. The father testified that the mother was “a
8 very good mother” who behaved appropriately and treated A.S. “like a little
queen” during the visitation. The father worked for himself in a mobile mechanic
business he had owned for 14 years, and the mother helped him with business
paperwork. All of the father’s drug tests were clean, and he denied using illegal
drugs.
The Department’s caseworker testified that she had been to the mother’s
apartment, and she conceded that it was appropriate and contained baby items and
food. She also conceded that the mother told her that she had valid prescriptions
for her medications.
However, the caseworker painted a different picture regarding the
interactions between the parents and A.S. during their sole visitation. She testified
that A.S. was not bonded to the mother:
The baby was a little bit upset and crying. The parents had some trouble consoling her. The father at one point made a video of her crying and played it back to her so that she could hear herself crying. And then the mother ended up giving the baby . . . to one of the staff members who was able to comfort the baby till she stopped crying.
The caseworker also testified that the parents did not cooperate with the
Department during the pendency of the case and had completed none of their
services. As a result of their failure to participate in services, they were allowed
only one visit with A.S. The child was living in a foster home, and she was “very,
very bonded” to the foster mother, who wanted to adopt her. The caseworker
9 believed it would be in the best interest of the child for the court to terminate the
mother’s parental rights.
Finally, the mother testified. She denied having taken any drug for which
she did not have a valid prescription. Her “Patient Prescription Record” from a
retail pharmacy was admitted into evidence. The records showed that from January
2013 to January 2014, the pharmacy filled more than 85 individual prescriptions
for the mother for a variety of medications, including narcotic and non-narcotic
pain relievers, antibiotics, and anti-seizure medications. The majority of these
medications were prescribed by three doctors.
The mother said that when she appeared for hair follicle drug testing, she
was never asked if she was on prescription medication. She said she tried to show
her prescriptions to the technician but was told that because the court and the
Department knew she had evidence of her prescriptions, “then that was fine.” The
mother testified that all the positive drug tests during the pendency of this case
were due to her use of prescribed medications. She testified that she takes
phenobarbital and Tegretol, also known as carbamazepine, to control seizures,
from which she had suffered since childhood. She testified that she was
hospitalized in September 2013 for a miscarriage, and that she was given
hydrocodone in the hospital and discharged with a prescription for acetaminophen
10 and codeine. She also testified that she used hydrocodone for pain after giving
birth to A.S.
She acknowledged using hydrocodone during her pregnancy for pain
associated with a tooth abscess, but she again denied telling the doctor that she had
terminated a pregnancy. To the contrary, she said, “I told her I was pregnant.” She
testified that she did not know the side effects of hydrocodone on pregnancy, the
doctor did not discuss that with her, she did not read the pamphlets that came with
the medication, and she did not think there was any reason not to take it.
Because the mother broadly denied having taken any drug for which she did
not have a prescription, the attorney ad litem asked the mother about a positive
drug test for cocaine in December 2011, which was before the mother became
pregnant with A.S. The mother denied having used cocaine and testified that she
had been drugged by an acquaintance, saying a subsequent drug test was “clean.”
The positive drug test result for cocaine from December 2011 was admitted into
evidence.
The mother conceded that she did not complete the services in her family
service plan, even though her visitation with A.S. was predicated on her doing so.
She said she did not comply with the family service plan because she did not do
anything wrong. Finally, she asked for a chance to parent her child, suggesting that
11 the Department “can stay in my life” “still supervising me,” and noting that she
previously parented her older children.
The trial court terminated the mother’s parental rights on grounds of
endangerment (§ 161.001(1)(E)), abandonment (§ 161.001(1)(N)), and failure to
comply with a court order (§ 161.001(1)(O)), and it appointed the Department sole
managing conservator. The mother appealed, challenging the legal and factual
sufficiency of the evidence to support the court’s termination decree.
Analysis
In four issues, the mother challenges the legal and factual sufficiency of the
evidence supporting the judgment terminating her parental rights with respect to
A.S. Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355, 361 (Tex. 2003). A parent’s right to the care, custody, and control
of her child is a precious liberty interest protected under the Constitution. See, e.g.,
Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000); Santosky v.
Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982). Accordingly,
termination proceedings are strictly scrutinized on appeal. Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence must support the
decision to terminate parental rights. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex.
2002); see also Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92.
12 Under the clear-and-convincing-evidence standard, evidence is legally
sufficient if it is “such that a factfinder could reasonably form a firm belief or
conviction about the truth of the matter on which the State bears the burden of
proof.” J.F.C., 96 S.W.3d at 265–66; see TEX. FAM. CODE ANN. § 101.007 (West
2008) (defining clear and convincing evidence). We review “the evidence in the
light most favorable to the judgment,” meaning that we “must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so.” J.F.C., 96 S.W.3d at 266. “If, after conducting its legal sufficiency
review of the record evidence, a court determines that no reasonable factfinder
could form a firm belief or conviction that the matter that must be proven is true,
then that court must conclude that the evidence is legally insufficient.” Id. “In a
bench trial, the trial court, as factfinder, is the sole judge of the credibility of the
witnesses.” HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108,
111 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing S.W. Bell Media, Inc. v.
Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992, writ denied));
see City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
Under factual sufficiency review, we must “determine whether ‘the evidence
is such that a factfinder could reasonably form a firm belief or conviction about the
truth of the State’s allegations.’” In re A.B., No. 13-0749, 2014 WL 1998440, at *3
(Tex. May 16, 2014) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “If, in
13 light of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient.” J.F.C., 96 S.W.3d at 266. In making this determination, we must
undertake “an exacting review of the entire record with a healthy regard for the
constitutional interests at stake.” C.H., 89 S.W.3d at 26.
In proceedings to terminate the parent-child relationship, the Department
must establish that one or more of the acts or omissions listed in Family Code
section 161.001(1) occurred and that termination is in the best interest of the child.
See TEX. FAM. CODE ANN. § 161.001. Both elements must be established, and
termination may not be based solely on the best interest of the child as determined
by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533
(Tex. 1987). “Only one predicate finding under section 161.001(1) is necessary to
support a judgment of termination when there is also a finding that termination is
in the child’s best interest.” A.V., 113 S.W.3d at 362. In this case, the trial court
based the termination of the mother’s parental rights on the predicate grounds of
endangerment, see TEX. FAM. CODE ANN. § 161.001(1)(E), constructive
abandonment, see id. § 161.001(1)(N), and failure to comply with a court order,
see id. § 161.001(1)(O).
14 I. Failure to comply with a court order (§ 161.001(1)(O))
The mother argues that the evidence is legally and factually insufficient to
support the trial court’s decree under subsection (O). She argues that A.S. was not
removed for abuse or neglect because she had a valid prescription for the
hydrocodone that she used during pregnancy and because the doctor testified at the
show cause hearing that there are no known ill effects of hydrocodone. Section
161.001(O) provides that a court may order termination of the parent-child
relationship if it finds by clear and convincing evidence that the parent has:
failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.
TEX. FAM. CODE ANN. § 161.001(O). The Supreme Court has held that, as pertinent
to section 161.001(O), the words “abuse or neglect” are “used broadly” and
necessarily include “the risks or threats of the environment in which the child is
placed.” In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). The Court explained that
“[p]art of that calculus includes the harm suffered or the danger faced by other
children under the parent’s care.” Id. Thus “a reviewing court may examine a
parent’s history with other children as a factor of the risks or threats of the
environment.” In re K.N.D., 424 S.W.3d 8, 10 (Tex. 2014).
15 Here the affidavit of removal details the mother’s involvement with the
Department and her history of abuse or neglect of her older children. Thus, we
conclude that, without regard to whether the mother’s prescription for hydrocodone
was valid or her use of the hydrocodone actually harmed her baby, A.S. was
removed for abuse or neglect. See id.; E.C.R., 402 S.W.3d at 248.
The evidence is undisputed that the mother failed to comply with the
provisions of the court order adopting the family service plan “in full . . . as if set
out verbatim.” The mother refused to sign the plan and refused to participate in
services because she believed that she had done nothing wrong. In light of our
conclusion that A.S. was removed for “abuse or neglect” and the undisputed
evidence that the mother did not comply with the court-ordered family service
plan, and viewing the evidence both in the light most favorable to the judgment
and in a neutral light, we conclude that a factfinder could have formed a firm belief
or conviction that the mother failed to comply with the provisions of a court order
that specifically established the actions necessary for her to obtain the return of
A.S. See TEX. FAM. CODE ANN. § 161.001(O). We hold that the evidence is legally
and factually sufficient to support the court’s termination decree on the grounds of
§ 161.001(O). See J.F.C., 96 S.W.3d at 265–66. Accordingly, we need not
consider the mother’s other arguments as to § 161.001(E) or (N). See A.V., 113
S.W.3d at 362.
16 II. Best interest of the child (§ 161.001(2))
The mother also challenges the legal and factual sufficiency of the evidence
to support the trial court’s finding that termination of the parent-child relationship
was in the child’s best interest. In determining whether termination of the mother’s
parental rights was in the child’s best interest, we consider several nonexclusive
factors, including (1) the child’s desires, (2) the current and future physical and
emotional needs of the child, (3) the current and future physical danger to the
child, (4) the parental abilities of the person seeking custody, (5) whether programs
are available to assist the person seeking custody in promoting the best interests of
the child, (6) plans for the child by the person seeking custody, (7) stability of the
home, (8) acts or omissions of the parent that may indicate that the parent-child
relationship is improper, and (9) any excuse for acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Department is not
required to prove all of these factors, and the absence of evidence about some
factors does not preclude the factfinder from reasonably forming a strong
conviction that termination is in the child’s best interest. See C.H., 89 S.W.3d at
27. Evidence establishing one of the predicate acts under section 161.001(1) may
also be relevant to determining the best interest of the child. See id. at 27–28.
17 A. Child’s desires and plans for the child
The first Holley factor, the child’s desires, is neutral or slightly favors
termination of the mother’s parental rights. First, A.S. was only a year old and was
too young to testify about her desires. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex.
App.—Houston [1st Dist.] 2013, no pet.). “The young age of the child render[s]
consideration of the child’s desires neutral.” In re A.C., 394 S.W.3d 633, 643 (Tex.
App.—Houston [1st Dist.] 2012, no pet.). However, there was some evidence to
show that A.S. was “very, very bonded” to her foster mother who wished to adopt
her, whereas the mother had visited with A.S. only once since her birth and A.S.
was not bonded to her. See Adams v. Tex. Dep’t of Family & Protective Servs., 236
S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Because the
evidence shows a lack of emotional bond between the mother and her infant child,
it weighs slightly in favor of termination. See id. The sixth Holley factor, plans for
the child by the person seeking custody, is related to the first factor and weighs in
favor of the court’s decree. There is no specific evidence as to the mother’s plans
for A.S. She has visited with her only once since her birth. However, the
caseworker testified that the baby is well bonded to her foster mother, who wishes
to adopt her.
18 B. Needs of the child, mother’s parenting abilities, and stability of the home
The second, fourth, and seventh Holley factors are all related in our
consideration of the best interests of this child. The second factor considers current
and future physical and emotional needs, while the fourth considers the parental
abilities of the person seeking custody. The evidence showed that A.S.’s needs
were being met in her foster care placement and that she was “very, very bonded”
to her foster mother, who wished to adopt her. This is some evidence that A.S.’s
current and future emotional and physical needs would be appropriately met by
termination of the mother’s parental rights. See In re S.T., 127 S.W.3d 371, 379
(Tex. App.—Beaumont 2004, no pet.) (considering that foster placement that met
children’s needs and plans for unrelated adoption were some evidence that
termination of parental rights was in the children’s best interest). Conversely,
although there was evidence that the mother and father had purchased items for
A.S., it was undisputed that neither parent provided any material support to the
child during the pendency of litigation.
In addition, and encompassing the factor of the parental abilities of the
person seeking custody, we must consider the evidence that the mother had no
fewer than nine older biological children, none of whom lived with her. Moreover,
the mother had significant prior involvement with the Department in regard to her
older children, and she had a history of relinquishing her parental rights to her
19 children. “Stability is important in a child’s emotional and physical development.”
T.G.R.-M., 404 S.W.3d at 17. The seventh Holley factor is the stability of the
home, and to the extent that factor is commonly interpreted to encompass a
parent’s ability to provide the child with food, clothing, and shelter, see id., it
would appear to weigh in favor of the mother. Here there was evidence that she
had been in a stable relationship with the father of A.S. for several years, had an
“appropriate” apartment, and was prepared with tangible items needed to care for a
child, like a car seat, baby bed, clothing, food, and diapers.
However, under both our legal and factual sufficiency standards of review,
we also must give consideration to the undisputed evidence of the mother’s prior
history with the Department and prior relinquishments of many of her biological
children. “An adult’s future conduct may be somewhat determined by recent past
conduct.” Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston
[1st Dist.] 2007, no pet.). Thus, a reasonable factfinder could have considered the
risk to A.S. created by the mother’s history of instability in parenting her older
children.
C. Physical danger to the child
The third factor is the current and future physical danger to the child. Holley,
544 S.W.2d at 371–72. The evidence showed that the child was born with
hydrocodone in her system, but there was no other evidence adduced at trial
20 specifically relevant to current or future danger to the child at the time of trial. This
factor is neutral.
D. Availability of assistance
The fifth Holley factor is whether programs are available to assist the person
seeking custody in promoting the best interests of the child. The mother refused to
participate in any services offered by the Department and ordered by the court.
This had the effect of depriving A.S. of an opportunity to bond with her mother,
because the mother’s visitation was contingent upon her participation in the family
service plan. The caseworker testified that the mother was wholly uncooperative
throughout the pendency of the case. The mother asked the court to give her a
chance to parent A.S. under the Department’s supervision, yet nothing in the
record indicates that she is, or has ever been, receptive to such involvement such
that any programs available through the Department would weigh in favor of
maintaining the parent-child relationship between the mother and A.S.
E. Parental acts and omissions
Finally, we consider the eighth and ninth factors together. These factors
consider acts or omissions of the parent that indicate the parent-child relationship
is improper, as well as any excuses therefor. Holley, 544 S.W.2d at 372. The
majority of the testimony in this case centered on the mother’s use of prescription
drugs during pregnancy and during the pendency of this case.
21 The State argues that the mother’s prescriptions were not valid because she
lied to the doctor about her pregnancy in order to obtain a narcotic pain reliever
when she was pregnant. Some evidence supports this theory. For example, Dr.
Syed testified at the show-cause hearing, and her records admitted at trial reflected
that the mother had told her she planned an abortion and was not pregnant. Dr.
Syed testified that she would not have prescribed hydrocodone if she had known
the mother was pregnant.
Both the mother and father testified that she did not lie to the doctor, told the
doctor she was pregnant, and was visibly pregnant at the time Dr. Syed examined
her and prescribed hydrocodone. However, it was for the judge as finder of fact to
resolve this disputed question of fact based on its determination of the credibility
of the witnesses. See HTS Servs., 190 S.W.3d at 111. We defer to the trial court’s
inherent assessment of credibility in favor of the doctor. See id.
The mother also provided prescription drug records and argued that because
the medications had been prescribed by a physician, she did nothing wrong by
using the medication. But her physician testified to the contrary at the hearing, by
observing that the mother affirmatively misrepresented her medical condition to
obtain narcotics. To the extent that the prescriptions may have been valid in the
sense that they were written by a doctor after examining a patient and for the
treatment of a medical condition, i.e., a painful tooth abscess, that does not address
22 the concern in this case. The evidence adduced at the hearing would allow a
factfinder to reasonably conclude that the mother affirmatively misled the doctor in
order to obtain a prescription for narcotic pain reliever, the use of which may have
subjected her unborn child to harm.
Finally, the evidence raised another significant omission for which there is
no evidence of an excuse. The mother refused to work toward completion of her
family service plan despite knowing that her ability to visit with A.S. depended on
her doing so and that failure to do so could result in termination of her parental
rights. By refusing to work on the family service plan services, she deprived A.S.
of an opportunity to bond with her and subjected her to the risk of termination of
her mother’s parental rights. This is not a case of “a parent’s imperfect compliance
with the plan.” In re S.M.R., No. 12-0968, 2014 WL 2535986, at *7 (Tex. June 6,
2014). The mother did not “fall short of strict compliance with a family-service
plan’s requirements,” she simply refused to work any services at all. See id. Her
only excuse for this omission was that she believed she did nothing wrong by
taking hydrocodone.
Viewing all the evidence in the light most favorable to the judgment, we
conclude that a factfinder could have formed a firm belief or conviction that
termination of the mother’s parental rights was in A.S.’s best interest. See TEX.
FAM. CODE ANN. § 161.001(2); J.F.C., 96 S.W.3d at 265–66. Viewing the same
23 evidence in a neutral light, the disputed evidence is not so significant as to prevent
a factfinder from forming a firm belief or conviction that termination of the
mother’s parental rights was in A.S.’s best interest. See TEX. FAM. CODE ANN.
§ 161.001(2); J.F.C., 96 S.W.3d at 265–66. Accordingly, we hold that the evidence
is legally and factually sufficient to support the trial court’s finding that
termination of the mother’s parental rights was in A.S.’s best interest. We overrule
the mother’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Justices Jennings, Bland, and Massengale.