In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00099-CV No. 07-21-00101-CV
IN THE INTEREST OF E.C.R. AND K.F., CHILDREN IN THE INTEREST OF B.L., A CHILD
On Appeal from the 316th District Court Hutchinson County, Texas Trial Court No. 43,640, Honorable James M. Mosley, Presiding
September 17, 2021 OPINION Before PIRTLE and PARKER and DOSS, JJ.
In appellate cause numbers 07-21-00099-CV and 07-21-00101-CV, “Kim” appeals
two final orders terminating her parental rights to three children, E.C.R., K.F., and B.L.1
The appellee is the Texas Department of Family and Protective Services. The cases
were consolidated for a bench trial. By her appeal, Kim raises two issues. In her first
1 To protect the privacy of the parties, we will refer to the appellant mother as “Kim,” the father of
B.L. as “Conrad,” and to the children by the initials “E.R.,” “K.F.,” and “B.L.” See TEX. FAM. CODE. ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). Conrad’s parental rights were terminated in cause number 07-21- 00101-CV, but he did not appeal. The parental rights of the fathers of E.R. and K.F. were terminated in cause number 07-21-00099-CV, but they did not appeal. issue, Kim challenges the trial court’s jurisdiction on the basis that the final hearing was
not commenced before the statutory dismissal date set out in Family Code section
263.401. In her second issue, Kim challenges the sufficiency of the evidence to support
the trial court’s best interest finding. We affirm the judgment of termination in each case.
Background
The trial court conducted a bench trial through Zoom videoconferencing on April
14, 2021.2 The children the subject of this suit are thirteen-year-old E.R., three-year-old
K.F., and eighteen-month-old B.L. Kim is the mother of these children. Conrad is the
father of B.L.
The Department became involved with Kim, Conrad, E.R., and K.F. in September
of 2018 after receiving a report alleging negligent supervision. There were also concerns
of domestic violence between Kim and Conrad and drug use in the home. Kim admitted
to the department investigator that she had recently used marijuana. During the
investigation, Kim acknowledged that the police had been to the home concerning
allegations of methamphetamine being manufactured in the home. After the Department
obtained a court order for drug testing, Kim, Conrad, and eleven-month-old K.F. tested
positive for amphetamine and methamphetamine.
In December of 2018, the Department removed E.R. and K.F. from Kim’s care and
filed its petition for protection, conservatorship, and termination of parental rights.
2 In response to the threat presented by the COVID-19 pandemic, the Texas Supreme Court issued numerous emergency orders authorizing “anyone involved in any hearing . . . to participate remotely, such as by videoconferencing.” See TEX. GOV’T CODE ANN. § 22.0035(b). One such order was effective as of the date of this hearing.
2 Following an adversary hearing, the Department was appointed temporary managing
conservator of E.R. and K.F.
In June of 2019, the Department received another report alleging neglectful
supervision by Kim and her newborn son, B.L. That report alleged that Kim was using
methamphetamine during her pregnancy. Kim admitted to using methamphetamine in
February, March, and April before B.L.’s birth, and drug testing confirmed her use of the
controlled substance. The Department removed B.L. from Kim’s care and filed its petition
for protection, conservatorship, and termination of parental rights. Following an adversary
hearing, the Department was appointed temporary managing conservator of B.L.
B.L. was placed in the same foster home as his sister, K.F.3 E.R. was placed at
the Children’s Home in Amarillo.
The Department developed a family service plan for Kim in each case. The service
plans set out several tasks and services for Kim to complete before reunification with
E.R., K.F., and B.L. could occur. These tasks and services included the following: attend
parenting classes; obtain and maintain stable housing that is appropriate and safe for the
children; obtain and maintain income sufficient for her family’s needs; maintain contact
with the caseworker; submit to random drug screens; participate in a substance abuse
assessment at Outreach, Screening, Assessment, and Referral (OSAR) and follow
recommendations; complete a psychosocial assessment and follow recommendations;
attend individual counseling; participate in and complete domestic violence education;
complete a mental health assessment at Texas Panhandle Centers (TPC); and attend
3 The foster parents intervened in both underlying cases. They have not filed an appellate brief.
3 visitation. Kim also agreed to complete in-patient substance abuse treatment as a part of
her plan of service in B.L.’s case.
Kim completed some of her service plan requirements. She completed her
individual counseling, an OSAR evaluation, and the OSAR recommendation that she
attend in-patient substance abuse treatment. Kim completed parenting classes in
October of 2020, and additional parenting classes addressing autism and ADHD for E.R.
The caseworker questioned whether Kim was able to apply what she learned in these
extra classes. Kim also completed a psychosocial evaluation and a second referral to
domestic violence education classes. Kim did not obtain a mental health evaluation at
TPC or follow through with recommendations for evaluation for bipolar and anxiety
disorders.
The caseworker described Kim’s visitation with the children as “sporadic” and
inconsistent. She estimated that Kim attended less than half of the allowed visits. Kim
was afforded both in-person and video visits. When Kim attended visits in person, she
would show up late and make inappropriate comments to E.R. that left him frustrated and
unable to “deregulate.” E.R. would remain upset over his conversations with Kim for
several days. The conversations Kim had with E.R. encouraged him to be rebellious and
not comply with the rules at the Children’s Home. When Kim canceled a visit on a Friday
or Saturday morning, E.R. would be upset the entire weekend. In February of 2021, the
trial court suspended Kim’s visits with E.R. at the request of E.R.’s caseworker and on
the recommendation of E.R.’s counselor.
4 Kim claimed that a lack of transportation hindered her visits with the children. She
has been without a vehicle for three to four months. Kim testified that it is difficult to
engage with the younger children on video chats and that some of those visits were cut
short at E.R.’s request.
At the time of trial, Kim was unemployed but had income from the sale of property.
If she can obtain transportation, she plans to return to work at JBS, a local meat-packing
plant. Kim worked at JBS for approximately six months beginning in November of 2019.
In August of 2020, Kim told her caseworker that she was going to work at a Little Caesars
pizza restaurant, but she did not provide any proof of her employment there.
Kim admitted to using marijuana and methamphetamine in 2018, and to using
methamphetamine in 2019 before B.L. was born. In August of 2019, Kim attended a
thirty-day in-patient drug rehabilitation program at Serenity House in Plainview. After her
discharge, Kim tested negative on several random drug screens between September
2019 and March 2020. In April of 2020, Kim submitted to a drug test but the sample she
provided was “cold” and could not be tested. Kim did not submit to a drug test in May. In
June, Kim’s hair follicle drug test was positive for methamphetamine. When asked if she
submitted to drug testing in July of 2020, she responded that, “if I didn’t, I was probably
at work.” Kim had a negative drug test in September, which was the last test that she
took before trial. She did not submit to drug testing in October, November, or December
of 2020, or in March of 2021. The failure to submit to drug testing is considered a positive
drug test result under her service plan.
5 Kim was diagnosed with asthma in April of 2020. She was prescribed Symbicort
and used an Equate inhaler. Kim stopped using the inhaler in June after she tested
positive for methamphetamine on a hair follicle drug test requested by the Department.
Kim attributes that positive result to using her inhaler and disputes the validity of the
positive test, contending that she was not using methamphetamine. Dr. Jimmie Valentine
testified that it is possible that the inhaler caused a false positive, but he “can’t say with
certainty.”
Kim requested that the court return her children to her. She has resided in the
same three-bedroom apartment since the Department became involved in 2018.
According to Kim, the children’s rooms are furnished with new clothes and furniture. The
caseworker conceded that Kim’s residence was appropriately furnished when she last
inspected it in November of 2020. The caseworker did not have regular contact with Kim
after November because Kim ceased communicating and cooperating with the
Department. The caseworker testified that she was not allowed inside Kim’s apartment
when she attempted a home visit in February of 2021.
E.R. is currently placed at the Children’s Home in Amarillo. He is doing well in his
current placement and the placement meets all his needs. E.R. has been diagnosed with
autism and functions at the level of a seven- to nine-year-old boy. The group home setting
at the Children’s Home helps to alleviate some of E.R.’s disruptive behaviors. He is able
to meet with his counselor regularly. E.R. attends Austin Middle School. He is doing “fair”
in school, and he is involved with the band program. E.R. has “thrived and he has
blossomed since the visits [with Kim] have been discontinued.” E.R. has previously
expressed to his counselor that he would like to return to his home with Kim, but he also
6 recently expressed an interest in moving to a foster home. According to his counselor, it
is not in E.R.’s best interest to return to Kim because E.R. is unable to assess his own
safety and well-being and he struggles with basic social skills. Kim has not demonstrated
an ability to provide E.R. the structure, boundaries, and instruction that he needs. The
caseworker stated that E.R. is a good candidate for adoption and there is a “strong
possibility” that he would be adopted. The Department’s permanency goal for E.R. is
“unrelated adoption, unrelated conservatorship.”
The two youngest children, K.F. and B.L., are currently placed together with a
foster family in Pampa, Texas. The foster family provides a safe and stable home
environment and is diligent in taking care of the needs of K.F. and B.L. The children are
taken to all their required medical appointments. The children are bonded with their foster
family and the family would like to be a permanent placement for both children and to
ultimately adopt them.
The trial court terminated Kim’s parental rights on the grounds set forth in Texas
Family Code section 161.001(b)(1)(D), (E), (N), (O), and (P). See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D), (E), (N), (O), and (P).4 The trial court further found termination of
Kim’s parental rights was in the best interest of E.R., K.F., and B.L. See § 161.001(b)(2).
The trial court appointed the Department as the managing conservator of all three
children.
4 Further references to provisions of the Texas Family Code will be by reference to “section __” or “§ __.”
7 Applicable Law
A parent’s right to the “companionship, care, custody, and management” of his or
her child is a constitutional interest “far more precious than any property right.” Santosky
v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural
parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to
accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)
(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1993)). Recognizing that a parent may
forfeit his or her parental rights by his or her acts or omissions, the primary focus of a
termination suit is protection of the child’s best interests. See id.
In a case to terminate parental rights under section 161.001 of the Family Code,
the petitioner must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination, and
(2) termination is in the best interest of the child. § 161.001(b). Clear and convincing
evidence is “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.”
§ 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). 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); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied).
“Only one predicate finding under section 161.001[(b)](1) is necessary to support a
8 judgment of termination when there is also a finding that termination is in the child’s best
interest.” In re A.V., 113 S.W.3d at 362. We will affirm the termination order if the
evidence is both legally and factually sufficient to support any alleged statutory ground
the trial court relied upon in terminating the parental rights if the evidence also establishes
that termination is in the child’s best interest. In re K.C.B., 280 S.W.3d at 894-95.
The clear and convincing evidence standard does not mean the evidence must
negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,
902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall
that the trier of fact has the authority to weigh the evidence, draw reasonable inferences
therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the
right to resolve credibility issues and conflicts within the evidence and may freely choose
to believe all, part, or none of the testimony espoused by any particular witness. Id.
Where conflicting evidence is present, the factfinder’s determination on such matters is
generally regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso
1997, no writ).
The appellate court cannot weigh witness credibility issues that depend on
demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,
the appellate court must defer to the factfinder’s determinations, as long as those
determinations are not themselves unreasonable. Id.
9 Standard of Review
When reviewing the legal sufficiency of the evidence in a termination case, the
appellate court should look at all the evidence in the light most favorable to the trial court’s
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. To give appropriate
deference to the factfinder’s conclusions, we must assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We
disregard all evidence that a reasonable factfinder could have disbelieved or found to
have been not credible, but we do not disregard undisputed facts. Id. Even evidence that
does more than raise surmise or suspicion is not sufficient unless that evidence is capable
of producing a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d
101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that
no reasonable factfinder could have formed a firm belief or conviction that the matter that
must be proven was true, then the evidence is legally insufficient and we must reverse.
Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we 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. We must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.
Id. We must also consider whether disputed evidence is such that a reasonable factfinder
could not have resolved the 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
10 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. Id.
Statutory Dismissal Deadline Under Section 263.401
In cases where the Department requests termination of parental rights or
conservatorship of a child, the Family Code requires the court to begin trial within one
year of appointing the Department as temporary managing conservator. § 263.401(a).
The trial court may extend the deadline once for 180 days upon a finding of “extraordinary
circumstances.” § 263.401(b). If the trial court grants an extension under subsection (b)
but fails to commence the trial on the merits before the dismissal date, “the court’s
jurisdiction over the suit is terminated and the suit is automatically dismissed without a
court order. The court may not grant an additional extension that extends the suit beyond
the required date for dismissal under Subsection (b) . . . .” § 263.401(c).
Through her first issue, Kim challenges the second extension of the dismissal date
in E.R. and K.F.’s case and argues the trial court lost jurisdiction because it failed to
render a final order or commence the final hearing by June 15, 2020, the statutory
dismissal date prescribed by section 263.401(b).
Procedural History
On December 13, 2018, the trial court entered an order of protection and named
the Department temporary managing conservator of E.R. and K.F., and a dismissal date
was set. Under section 263.401, the initial dismissal date was calculated to be December
16, 2019. § 263.401(a) (original dismissal date is “the first Monday after the first
11 anniversary of the date the court rendered a temporary order appointing the [D]epartment
as temporary managing conservator. . . .”).
At the permanency hearing on August 27, 2019, the trial court found extraordinary
circumstances necessitated that E.R. and K.F. remain in the temporary managing
conservatorship of the Department and that continuing the appointment of the
Department as temporary managing conservator was in the children’s best interest. As
a result, the trial court granted a 180-day extension pursuant to section 263.401(b) and
reset the dismissal date for June 15, 2020. A final hearing was subsequently set for June
11.
At the time of the hearing on June 11, Texas courts were subject to emergency
orders issued by the Supreme Court of Texas due to the COVID-19 pandemic. As a
result, the Department sought another extension and requested the trial court to suspend
section 263.401’s dismissal date pursuant to the court’s standing order,5 extend the
dismissal date to December 11, and reset the final hearing to August 6. The trial court
granted the Department’s request and orally rendered the following order:
[P]ursuant to [the court’s] standing order and the Supreme Court’s Twelfth Emergency Order regarding the State of Disaster issued by the Supreme Court [on] April 27th, 2020, the [c]ourt does extend those deadlines in both of these cases until 30 days after the State of Emergency is lifted.6
5 The trial court’s standing order was not included in the appellate record. 6The Twelfth Emergency Order allowed a Texas court to “[m]odify or suspend any and all deadlines and procedures . . . specifically including those in Section 263.401 of the Family Code . . . for a stated period ending no later than 30 days after the Governor’s state of disaster has been lifted.” In re Twelfth Emergency Order Regarding the COVID-19 State of Disaster, No. 20-9059, 2020 Tex. LEXIS 1020, at *1- 2 (Tex. Apr. 27, 2020). The Seventeenth Emergency Order had superseded the Twelfth Emergency Order when the hearing was held on June 11. As relevant here, that order provided: “[A]ll courts in Texas may in any case, civil or criminal[,] . . . without a participant’s consent: . . . (ii) extend the dismissal date for any case previously retained on the court’s docket for an additional period not to exceed 180 days from the date
12 After the above recitation, the trial court conducted a permanency hearing. The trial court
signed the permanency hearing order on August 4, resetting the final hearing for August
6, and extending the dismissal date to December 11. In its written order, the court
extended the dismissal date according to section 263.401(b) but it did not reference the
applicable Supreme Court emergency order.
Analysis
Kim contends the trial court lost jurisdiction when it “again found extraordinary
circumstances warranted retaining the case” and setting a new dismissal date for another
180 days and asserts that “a potential argument that the further extension of the case
was necessary due to the Covid-19 pandemic [is] invalid” because the trial court stated
that the second extension was based on section 263.401(b). We disagree with Kim’s
assertions and hold the trial court properly extended the dismissal date.
In the absence of an extension, the automatic statutory deadline for the court to
commence the trial on the merits was June 15, 2020. See § 263.401(c). The record
shows that at the June 11 proceedings, the trial court orally pronounced its extension and
properly extended and retained the case based on the Twelfth Emergency Order and the
court’s standing order. See § 101.026 (pronouncement may be made orally in the
presence of the court reporter or in writing, “including on the court’s docket sheet or by a
separate written instrument”); Phillips v. Tex. Dep’t of Protective and Regulatory Servs.,
of this Order.” Seventeenth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 119, 120 (Tex. May 26, 2020). This order “renewed” paragraph 3 of the Twelfth Emergency Order and allowed courts to extend the dismissal date “for any case previously retained on the court’s docket for an additional period not to exceed 180 days from the date of this Order.” Id.
13 149 S.W.3d 814, 817 (Tex. App.—Eastland 2004, no pet.) (section 263.401(b) does not
require a written order; an oral rendition is sufficient). The Twelfth Emergency Order
specifically allowed the court to “modify or suspend” the deadlines and procedures in
section 263.401. As a result, the automatic dismissal provisions of section 263.401(c)
were suspended and the trial court was authorized to extend the dismissal deadline for
another 180 days. See E.N. v. Tex. Dep’t of Family & Protective Servs., No. 03-21-00014-
CV, 2021 Tex. App. LEXIS 4831 (Tex. App.—Austin June 17, 2021, no pet. h.) (mem.
op.) (discussing section 263.401 and Supreme Court’s emergency order relating to
COVID-19 state of disaster and stating “[t]his would theoretically have allowed the district
court to extend the case indefinitely by granting an extension under each successive
order” and noting that, “[o]nce the authorizations stopped, each of the cases where a
court had granted an extension would have to be tried before the automatic dismissal
date”). As such, section 263.401(b) remained operative as a basis to extend the dismissal
date, as recited in the trial court’s August 4 order. Moreover, the trial court’s order
granting an extension contained the findings required by section 263.401(b). In re G.X.H.,
No. 19-0959, 2021 Tex. LEXIS 345, at *20 (Tex. Apr. 30, 2021).
We conclude the trial court properly extended its jurisdiction when it orally rendered
its pronouncement on June 11, before the dismissal deadline of June 15. We further
conclude the trial court had jurisdiction when the case was tried on April 14, 2021, as the
trial court entered a subsequent order extending the dismissal date to May 10, 2021,
14 pursuant to the Twenty-Ninth Emergency Order.7 See Twenty-Ninth Emergency Order
Regarding COVID-19 State of Disaster, No. 20-9135, 2020 Tex. LEXIS 1177, at *2 (Tex.
Nov. 11, 2020) (“(ii) for any case previously retained on the court’s docket pursuant to
Section 263.401(b) or (b-1), or for any case whose dismissal date was previously modified
under an Emergency Order of this Court related to COVID-19, [courts may] extend the
dismissal for an additional period not to exceed 180 days from the date of this
Order . . . .”). We overrule Kim’s issue.
Best Interest
In her remaining issue, Kim challenges the factual and legal sufficiency of the
evidence to support the best interest finding made under section 161.001(b)(2) in each
case. Kim does not contest the predicate grounds for termination under section
161.001(b)(1).
A determination of best interest necessitates a focus on the child, not the parent.
In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts
examine the entire record to decide what is in the best interest of the child. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s
best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006).
7 On November 19, the trial court signed an order suspending the dismissal date and retaining suit on court’s docket, and an order resetting final hearing pursuant to the Twenty-Ninth Emergency Order. The trial court set the new dismissal date for May 10, 2021. The trial was held on April 14, 2021.
15 In assessing whether termination is in a child’s best interest, the courts are guided
by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976). These factors include: (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to the child
now and in the future, (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 for the child by these individuals or by the agency seeking custody, (7) the
stability of the home or proposed placement, (8) the acts or omissions of the parent that
may indicate that the existing parent-child relationship is not proper, and (9) any excuse
for the acts or omissions of the parent. Id. “[T]he State need not prove all of the factors
as a condition precedent to parental termination, ‘particularly if the evidence were
undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,
95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory
grounds for termination may also constitute evidence illustrating that termination is in the
child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may
consider circumstantial evidence, subjective factors, and the totality of the evidence as
well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,
no pet.). We must also bear in mind that a child’s need for permanence through the
establishment of a stable, permanent home has been recognized as the paramount
consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.
App.—Dallas 2007, no pet.).
16 When the Department became involved with the family in the fall of 2018, Kim,
Conrad, and K.F. tested positive for amphetamine and methamphetamine. Kim admitted
to marijuana use the week before the Department’s investigation began. After E.R. and
K.F. were removed from Kim’s care and placed in foster care, Kim continued to use
methamphetamine while she was pregnant with B.L. After B.L. was born, Kim was not
compliant with the random drug tests required under the service plan and failed to appear
for multiple drug tests requested by the Department. Those failures are considered
positive results under her service plan. A parent’s refusal to submit to drug testing may
be considered as evidence that she is continuing to abuse drugs. In re T.R.L., No. 10-
14-00290-CV, 2015 Tex. App. LEXIS 2178, at *14 (Tex. App.—Waco Mar. 5, 2015, no
pet.) (mem. op.) (“A factfinder may reasonably infer from a parent’s refusal to take a drug
test that the parent was using drugs.”); In re C.R., 263 S.W.3d 368, 374 (Tex. App.—
Dallas 2008, no pet.) (trial court could reasonably infer parent avoided taking drug tests
because she was using drugs). A parent’s drug use supports a finding that termination
of parental rights is in the best interest of the child. In re D.M.M., No. 14-16-00664-CV,
2017 Tex. App. LEXIS 47, at *13 (Tex. App.—Houston [14th Dist.] Jan. 5, 2017, pet.
denied) (mem. op.).
Moreover, Kim acknowledged that her methamphetamine use in the home was a
dangerous living environment for E.R. and K.F. and conceded that using
methamphetamine while she was pregnant with B.L. was “definitely” dangerous. The trial
court’s unchallenged predicate grounds are probative in the best interest determination.
In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(citing, inter alia, In re C.H., 89 S.W.3d at 28). Here, Kim’s parental rights were terminated
17 on the predicate grounds of endangering conditions, endangerment, constructive
abandonment, failure to comply with a court order that established actions necessary to
retain custody of the children, using a controlled substance in a manner that endangered
the health or safety of the children, and abusing a controlled substance after completion
of a court-ordered substance abuse treatment program. A parent’s drug use
demonstrates an inability to provide a stable environment for the children and an inability
to provide for the children’s emotional and physical needs. In re E.M., 494 S.W.3d 209,
222-23 (Tex. App.—Waco 2015, pet. denied). The unchallenged statutory grounds for
termination are significant in our review of the best interest finding.
Kim disputed the positive test result in June of 2020 contending she did not use
methamphetamine at that time. We are not to “second-guess the trial court’s resolution
of a factual dispute by relying on evidence that is either disputed, or that the court could
easily have rejected as not credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003). As
factfinder and sole judge of the credibility and demeanor of witnesses, the trial court was
free to credit positive test results over Kim’s denial of methamphetamine use. See In re
S.R., 452 S.W.3d 351, 365 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
Although Kim’s expert testified that the June 2020 hair follicle test could possibly
be a false positive, the trial court could have believed that testimony was not credible.
The trier of fact is the sole judge of the credibility of the witnesses and the weight to give
their testimony. Id.
The Department also presented evidence that Kim did not consistently exercise
her periods of possession with the children. Kim’s visitation with the children was
18 described as “sporadic.” In February, the trial court suspended Kim’s visits with E.R. after
E.R.’s counselor testified that Kim’s visits were detrimental to E.R. A parent’s lack of
consistency and failure to engage in visitation indicates the parent would not meet the
children’s emotional and physical needs in the future.
Although the evidence showed that Kim completed some of the service plan’s
requirements, she did not comply with significant portions of her plan, including random
drug testing, attending visitation, maintaining employment, and staying in contact with the
Department. Kim successfully completed an in-patient drug rehabilitation program in
September of 2019, but it had been more than six months since Kim had submitted to a
drug test when the final hearing was held. Kim asserts that her housing is stable because
she lives in the same three-bedroom apartment that she had when E.R. and K.F. were
removed. However, her continued illegal drug use, her failure to comply with the
Department’s drug testing, her sporadic employment, and inconsistent visitation belies
Kim’s assertion that she can provide a stable living environment for the children.
The evidence also reflected that Kim had little understanding of E.R.’s needs as an
autistic child and aspects of his care such as providing structure, boundaries, and
instruction. Kim admitted that she made a decision to no longer cooperate with the
Department after she learned they were seeking termination, and she ceased contact and
participation in Department services in the fall of 2020. The factfinder can infer from a
parent’s failure to take the initiative to utilize the available programs that the parent did
not have the ability to motivate herself in the future. In re S.P., 509 S.W.3d 552, 558 (Tex.
App.—El Paso 2016, no pet.). A trial court is permitted to consider a parent’s drug use
and failure to comply with a family plan of service in its best interest determination. In re
19 S.B., 207 S.W.3d 877, 887-88 (Tex. App.—Fort Worth 2006, no pet.). This evidence
weighs heavily in favor of the best interest finding.
Stability and permanence are paramount in the upbringing of children. In re J.D.,
436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may
compare the parent’s and the Department’s plans for the child and determine whether the
plans and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.
Here, Kim asked the trial court to return the children to her care or, alternatively, to
keep the children’s placements and allow her to have visitation. Kim did not articulate
any clear plans for the children. In contrast, the Department’s plan for the children was
permanence. The trial court heard testimony from the caseworker that K.F. and B.L. are
bonded with each other and with the foster parents. At the time of placement with the
foster parents, K.F. was eleven months old and B.L. was five days old. They are doing
well in the foster home and the foster family planned to adopt them. “When children are
too young to express their desires, the factfinder may consider whether the children have
bonded with the foster family, are well-cared for by them, and have spent minimal time
with a parent.” In re S.R., 452 S.W.3d at 369.
At the time of trial, E.R. was thirteen years old, and he was settled into a structured
environment. According to the caseworker, he is getting exceptional help with his autism,
and he is learning to control his emotions. Moreover, E.R.’s behavior markedly improved
after the visits with Kim were suspended. E.R. has expressed a desire to return to Kim’s
care, but more recently, he has requested to be transitioned to a foster care placement.
The Department’s plan for E.R. is adoption.
20 The trial court heard evidence that the children were thriving and well cared for in
their respective placements. The Department’s plan would provide permanence and
stability for the children and weighs heavily in favor of the trial court’s conclusion that
termination of Kim’s parental rights is in the best interest of the children.
We conclude the evidence is legally and factually sufficient to establish a firm
conviction in the mind of the trial court that termination of Kim’s parental rights is in the
best interest of E.R., K.F., and B.L. We overrule Kim’s issue challenging the best interest
determination.
Conclusion
The judgment of the trial court terminating Kim’s parental rights is affirmed.
Judy C. Parker Justice