in the Interest of A.A.M., a Child

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-17-00709-CV

In the Interest of A.A.M., a Child

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2016-PA-02894 Honorable Richard Garcia, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice

Delivered and Filed: April 4, 2018

AFFIRMED

This is an accelerated appeal from an order terminating Mother and Father’s parental rights

to the child, A.A.M. 1 Mother contends the evidence is legally and factually insufficient to support

the trial court’s finding that termination of her parental rights is in the best interests of the child.

We affirm the trial court’s termination order.

BACKGROUND

The Texas Department of Family and Protective Services (“the Department”) became

involved with this family on September 23, 2016, when A.A.M. tested positive for illegal

substances at birth. At the time of delivery, Mother tested positive for opiates and benzodiazepine

1 Although the trial court terminated both parents’ parental rights, only Mother appeals the trial court’s termination order. Therefore, we will only discuss the trial court’s order as it pertains to Mother. 04-17-00709-CV

and admitted to using marijuana, cocaine, and Adderall within a week of A.A.M.’s birth. After

unsuccessful attempts at placing the child with a relative of Mother and in light of Mother’s apathy

regarding her drug use, the Department filed a petition to terminate Mother’s parental rights on

December 29, 2016.

Following a show cause hearing on January 10, 2017, the trial court signed a temporary

order assigning the Department as temporary managing conservator of the child and ordering

Mother to comply with the Department’s family service plan. At a status hearing on February 28,

2017, the trial court found Mother had reviewed and signed her service plan. At a permanency

hearing on June 28, 2017, the trial court found Mother had not demonstrated adequate and

appropriate compliance with the service plan.

During a non-jury trial on October 25, 2017, the trial court heard testimony from

Department caseworker Sonia Perez. After receipt of evidence and testimony, the trial court signed

an order terminating Mother’s parental rights. Specifically, the trial court found Mother (1) used a

controlled substance in a manner that endangered the health or safety of A.A.M. and either (a)

failed to complete a court-ordered substance abuse treatment program; or (b) after completion of

a court-ordered substance abuse treatment program, continued to abuse a controlled substance; (2)

was the cause of A.A.M. being born addicted to alcohol or a controlled substance, other than a

controlled substance legally obtained by prescription; and (3) failed to comply with the provisions

of a court order that specifically established the actions necessary for her to obtain the return of

A.A.M. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O), (P), (R) (West Supp. 2016). The trial court

also found termination of Mother’s parental rights was in A.A.M.’s best interest. See id.

§ 161.001(b)(2). Mother appeals the trial court’s order terminating her parental rights to A.A.M.

-2- 04-17-00709-CV

STANDARD OF REVIEW

To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the

Department has the burden to prove: (1) one of the predicate grounds in subsection 161.001(b)(1);

and (2) that termination is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001;

In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The applicable burden of proof is the clear and

convincing standard. TEX. FAM. CODE ANN. § 161.206(a) (West 2014); In re J.F.C., 96 S.W.3d

256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means the measure or degree of proof that

will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007.

In reviewing the legal sufficiency of the evidence to support the termination of parental

rights, the court must “look at all the evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or conviction that its

finding was true.” In re J.F.C., 96 S.W.3d at 266. “[A] reviewing court must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.” Id.

“A corollary to this requirement is that a court should disregard all evidence that a reasonable

factfinder could have disbelieved or found to have been incredible.” Id.

In reviewing the factual sufficiency of the evidence to support the termination of parental

rights, the court views all the evidence and determines whether a reasonable factfinder could form

a firm belief or conviction that a given finding was true. See id.; In re C.H., 89 S.W.3d 17, 25 (Tex.

2002). The court “must give due consideration to evidence that the factfinder could reasonably

have found to be clear and convincing.” In re J.F.C., 96 S.W.3d at 266. “A court of appeals should

consider whether disputed evidence is such that a reasonable factfinder could not have resolved

that disputed evidence in favor of its finding.” Id. “If, in light of the entire record, the disputed

evidence that a reasonable factfinder could not have credited in favor of the finding is so significant -3- 04-17-00709-CV

that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence

is factually insufficient.” Id.

BEST INTEREST OF THE CHILD

Mother challenges the legal and factual sufficiency of the evidence to support the trial

court’s finding that termination of her parental rights is in A.A.M.’s best interest.

The Texas Supreme Court has enumerated the following factors to assist courts in

evaluating a child’s best interest: (1) the desires of the child; (2) the present and future emotional

and physical needs of the child; (3) the present and future emotional and physical danger to the

child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to

assist these individuals to promote the best interest of the child; (6) the plans held by the individuals

seeking custody of the child; (7) the stability of the home of the parent and the individuals seeking

custody; (8) the acts or omissions of the parent which may indicate that the existing parent-child

relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley

v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The foregoing factors are not exhaustive, and

“[t]he absence of evidence about some of [the factors] would not preclude a factfinder from

reasonably forming a strong conviction or belief that termination is in the child’s best interest.” In

re C.H., 89 S.W.3d at 27. “A trier of fact may measure a parent’s future conduct by his past conduct

and determine whether termination of parental rights is in the child’s best interest.” In re E.D., 419

S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied).

Turning to the evidence regarding the best interest of the child, we consider the Holley

factors as outlined above.

Desires of the Child

A.A.M. is a young child, who was three months old at the time the Department filed the

suit to terminate Mother’s parental rights and thirteen months old at the time of trial. A.A.M. was -4- 04-17-00709-CV

thus unable to verbally communicate his desires. However, when a child is too young to express

his desires, the factfinder may consider whether the child has bonded with its current caregiver, is

well-cared for, and has spent minimal time with the parent. In re J.D., 436 S.W.3d 105, 118 (Tex.

App.—Houston [14th Dist.] 2014, no pet.).

Perez testified A.A.M. had been placed with a foster family for approximately ten months.

Perez related that, based on her observations, A.A.M. appeared bonded to his foster parents.

Conversely, Perez testified that although Mother’s visits with A.A.M. were “possibly” a positive

experience for the child, A.A.M. does not appear bonded to Mother because during Mother’s visits,

A.A.M. cries and reaches away from Mother.

Emotional and Physical Danger

“A mother’s use of drugs during pregnancy may amount to conduct that endangers the

physical and emotional well-being of the child.” In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—

Fort Worth 2003, no pet.). “Drug addiction and its effect on a parent’s life” may also endanger a

child. Id. Perez testified A.A.M. tested positive for methamphetamines and marijuana at the time

of his birth. According to Perez, returning A.A.M. to Mother would present an immediate danger

to A.A.M. Perez explained Mother tested positive for methamphetamines and amphetamines less

than one month prior to trial and has provided no indication she is engaged in dealing with her

drug issues. Perez further related Mother’s home is not safe, has clothes and broken furniture

thrown about, has torn-up walls with holes in them, and looks abandoned.

Emotional and Physical Needs/Stability/Plans for the Child

A child’s “need for permanence is the paramount consideration for the child’s present and

future physical and emotional needs.” Dupree v. Texas Dep’t of Protective & Regulatory Servs.,

907 S.W.2d 81, 87 (Tex. App.—Dallas 1995, no pet.). “The goal of establishing a stable permanent

home for a child is a compelling government interest.” In re M.A.N.M., 75 S.W.3d 73, 77 (Tex. -5- 04-17-00709-CV

App.—San Antonio 2002, no pet.). The trial court “may infer from a parent’s past inability or

unwillingness to meet a child’s physical and emotional needs an inability or unwillingness to meet

a child’s needs in the future.” In re J.D., 436 S.W.3d at 118.

Perez related A.A.M. is thriving in his placement with his foster parents, and that A.A.M.’s

current foster placement would lead to permanency for A.A.M. if the trial court terminated

Mother’s parental rights. Conversely, Perez testified Mother does not have a stable place to live

and is not in a position to meet A.A.M.’s emotional or physical needs.

Parent’s Acts or Omissions/Programs

Perez testified that Mother did not complete any of the items on her service plan and had

offered no explanation as to why she failed to do so. Moreover, Perez explained that although

Mother did attend some visits with the child, Mother only attended “about half or less than half of

the visits that were possible.”

After evaluating the evidence and testimony in light of the Holley factors and viewing the

evidence in the light most favorable to the trial court’s finding, we conclude the trial court could

reasonably have formed a firm belief or conviction that termination of Mother’s parental rights is

in the A.A.M.’s best interest. Likewise, viewing all the evidence, including any disputed or

conflicting evidence, we conclude the trial court could reasonably have formed the same firm

belief or conviction. Thus, the evidence is both legally and factually sufficient to support the trial

court’s best interest finding.

CONCLUSION

Based on the foregoing reasons, we overrule Mother’s sole issue on appeal in which she

challenges the legal and factual sufficiency of the evidence to support the trial court’s finding that

-6- 04-17-00709-CV

termination of her parental rights is in the best interest of the child. We affirm the trial court’s

order terminating Mother’s parental rights.

Irene Rios, Justice

-7-