In the Interest of J.D.R., a Child v. the State of Texas

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-24-00337-CV

IN THE INTEREST OF J.D.R., a Child

From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2023-PA-00893 Honorable Lisa Jarrett, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Rebeca Martinez, Chief Justice Beth Watkins, Justice Lori Massey Brissette, Justice

Delivered and Filed: September 25, 2024

AFFIRMED

This case involves the termination of Father J.R.’s right to parent J.D.R. (born 2023). 1 J.R.

appeals the trial court’s order terminating his parental rights, arguing that the evidence is legally

and factually insufficient to support the trial court’s findings under Texas Family Code section

161.001(b)(1) and its finding that termination is in J.D.R.’s best interest. We affirm the trial court’s

order.

BACKGROUND

When J.D.R. was born, he tested positive for methamphetamines. Both parents also tested

positive for methamphetamines at the hospital. Both parents admitted to having an ongoing issue

with methamphetamines, and J.R. also admitted regular use of marijuana. The Department tried to

1 We use aliases to protect the child’s identity. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8. 04-24-00337-CV

locate a family member or a family friend who could sign a safety plan for J.D.R. to avoid

removing him to foster care, but the persons recommended by the mother all had a prior criminal

history and/or a negative history with Child Protective Services or were unwilling to help.

J.D.R. was removed, the Department was named temporary managing conservator, and

both parents were named temporary possessory conservators. A family service plan was

established requiring both parents to complete parenting education, complete a psychological and

drug assessment and follow all recommendations, and complete random drug testing. The family

service plan was adopted as an order of the court and ultimately admitted as an exhibit at trial. The

plan also required that the parents work to create a stable living situation for the child and maintain

stable employment. Finally, while the mother’s plan required her to complete a domestic violence

course for victims, it is not alleged that J.R. was a perpetrator of domestic violence. Both parents

reviewed the plan and were advised that if they were not willing or able to provide the child a safe

environment within a reasonable period of time, their parental rights were subject to restriction or

termination.

Rather than find a foster placement, the Department was able to place J.D.R. with the

mother’s grandmother, who also takes care of the mother’s two other children (J.D.R.’s siblings).

Mother did not demonstrate a desire to comply with the family service plan or to provide a safe

environment with the child, did not appear at the final trial, and does not appeal the termination of

her parental rights. While J.R. clearly had a desire to be in the child’s life, demonstrated by his

visits and random provision of diapers and toys, he failed to follow through on the requirements

of the service plan, failed to maintain steady employment and failed to create a stable home for the

child. He also did not appear for the final trial on the merits.

Ultimately, based on testimony from the Department’s investigator and caseworker as well

as from the mother’s grandmother, the trial court terminated the rights of both parents pursuant to

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Texas Family Code section 161.001(b)(1)(O) and (P) and found that termination of J.R.’s parental

rights was in J.D.R.’s best interest. J.R. now appeals the trial court’s termination order.

FACTUAL AND LEGAL SUFFICIENCY REVIEW

J.R. challenges not only the legal and factual sufficiency of the evidence supporting the

trial court’s findings under section 161.001(b)(1)(O) and (P), but also the legal and factual

sufficiency of the evidence on which the trial court relied to conclude that termination was in

J.R.D.’s best interest.

Applicable Law and Standard of Review

It is of constitutional importance when a trial court involuntarily terminates a natural

parent’s rights. In re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied).

“As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor

of the parent.” Id. We must find that the Department proved, by clear and convincing evidence,

that a statutory ground existed to terminate the parental rights and that termination is in the best

interest of the children. TEX. FAM. CODE ANN. § 161.206; In re. A.V., 113 S.W.3d 355, 362 (Tex.

2003).

When reviewing the sufficiency of the evidence supporting a trial court’s order of

termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263–

64 (Tex. 2002). When performing a legal sufficiency review, where the standard is clear and

convincing evidence, we must look at the evidence in the light most favorable to the factfinder’s

finding to determine whether a reasonable factfinder “could have formed a firm belief or

conviction that its findings are true.” In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); TEX. FAM.

CODE ANN. § 101.007. For factual sufficiency, we look to the evidence contrary to the finding to

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determine if it would prevent a reasonable factfinder from forming the same conviction or belief.

In re J.O.A., 283 S.W.3d at 345.

On review, an appellate court must not “substitute its own judgment for that of a reasonable

factfinder.” In re Commitment of Stoddard, 619 S.W.3d 665, 668 (Tex. 2020); accord In re H.R.M.,

209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole judge of the weight and credibility of

the evidence. In re J.O.A., 283 S.W.3d at 346. This is because “the trial judge is best able to observe

and assess the witnesses’ demeanor and credibility, and to sense the ‘forces, powers, and

influences’ that may not be apparent from merely reading the record on appeal.” In re A.L.E., 279

S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

STATUTORY GROUNDS FOR TERMINATING M.L.’S PARENTAL RIGHTS

J.R. challenges the trial court’s findings on both grounds, (O) and (P). See TEX. FAM. CODE

ANN. § 161.001(b)(1)(O), (P). Under Subsection (O), the trial court may terminate parental rights

to a child if the parent “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” when that child

has been in the care of the Department for not less than nine months. TEX. FAM. CODE

§ 161.001(b)(1)(O). Under Subsection (P), the trial court may terminate the parental rights to a

child if the parent “used a controlled substance . . . in a manner that endangered the health or safety

of the child” and either failed to complete a court-ordered drug treatment or continued to abuse a

controlled substance after completing such treatment. TEX. FAM. CODE § 161.001(b)(1)(P).

A single statutory ground finding, when accompanied by a best interest of the child finding,

is sufficient to support terminating a parent’s rights under section 161.001. In re A.V., 113 S.W.3d

at 362; In re R.S.-T., 522 S.W.3d 92, 111 (Tex. App.—San Antonio 2017, no pet.). When, as here,

the trial court terminates the parent’s rights on multiple predicate grounds, we may affirm on any

one ground. In re A.V., 113 S.W.3d at 362; In re D.J.H., 381 S.W.3d 606, 611‒12 (Tex. App.—

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San Antonio 2012, no pet.). As a result, we will focus our analysis on the evidence of J.R.’s drug

use in violation of Subsection (P).

Relevant Facts

J.D.R. was born at the end of May 2023. Based on a referral from the hospital where J.D.R.

tested positive for methamphetamines at birth, both parents were tested, and both tested positive

for methamphetamines. The mother admitted use of methamphetamines while J.R. denied it. He

did admit using marijuana. The Department filed an affidavit for removal on June 13, 2023.

At the first adversary hearing, both parents were named temporary possessory conservators

and were given the opportunity to have one-hour weekly visits with J.D.R. On July 26, 2023, J.R.

signed the family service plan and was advised that the failure to complete the plan and provide a

safe environment to J.D.R. within a reasonable period of time would result in his parental rights

being restricted or terminated.

On April 17, 2024, the court held a final trial on the merits. The evidence established that

J.R. completed the psychological and drug assessment required by the family service plan. He did

not, however, take steps to follow through on any of the recommendations made as a result of that

assessment, including inpatient drug therapy and counseling, even though he was required by court

order to follow those recommendations. The caseworker testified that there was an ongoing

concern about J.R.’s sobriety but he had not taken drug tests when required to do so. See In re R.S.,

No. 01-20-00126-CV, 2020 WL 4289978, at *7 (Tex. App.—Houston [1st Dist.] July 28, 2020,

no pet.) (mem. op.) (“The trial court could have reasonably inferred that the father was still using

methamphetamine, or some other illegal drug, based on his failure to take court-ordered drug

tests”); In re E.R.W., 528 S.W.3d 251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.)

(concluding factfinder could reasonably infer parent’s failure to submit to court-ordered testing

indicated parent avoided testing in an effort to conceal continued drug use).

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The caseworker also testified that he told her he was living with various friends, sleeping

on their couches. And he admitted to her that the friends he was staying with used drugs. The CPS

investigator testified that J.R. acknowledged his own drug use but did not take his problem with

methamphetamines seriously. Finally, the caseworker testified that at one of his recent visits with

J.D.R., J.R. “was falling asleep while he was holding the baby.” In re A.L.S., 660 S.W.3d 257,

275–76 (Tex. App.—San Antonio 2022, pet. denied) (recognizing “drug use can destabilize the

home and expose children to physical and emotional harm if not resolved.”). The Texas Supreme

Court recently recognized that “[a] parent’s pattern of illegal use of a controlled substance like

methamphetamine supports a finding of endangerment under (P) when the evidence shows it

adversely affected the parent’s ability to parent, presenting a substantial risk of harm to the child’s

health and safety.” In re R.R.A., 687 S.W.3d 269, 282 (Tex. 2024).

J.R. asserts in his brief to this court that he did not have enough time to deal with the issue

of drug use. But no request for extension was made, and he did not appear for the final trial on the

merits where he knew his parental rights could be terminated. Further, the evidence does not

demonstrate that he took advantage of the time provided—over nine months—to address his drug

issue.

Conclusion

Based on these facts, the trial court could have formed a firm belief or conviction that J.R.

used a controlled substance in a manner that endangered the health or safety of the child and failed

to complete a court-ordered substance abuse treatment program. See TEX. FAM. CODE

§ 161.001(b)(1)(P). In re R.R.A., 687 S.W.3d at 282. Accordingly, the evidence was legally and

factually sufficient to support the trial court’s finding under Subsection (P).

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BEST INTEREST OF THE CHILD

J.R. asserts that the evidence was legally and factually insufficient to support the trial

court’s finding that terminating his parental rights was in J.D.R.’s best interest. See TEX. FAM.

CODE § 161.001(b)(2). The Family Code statutory factors i and the Holley factors ii for best interest

of the children are well known. Applying each standard of review and the applicable statutory and

common law factors, we examine the evidence pertaining to the best interest of the child. We also

consider the evidence we recited above as we now review the best interest of the child under

section 161.001(b)(2). See In re C.H., 89 S.W.3d at 28 (noting that the same evidence used to

prove the parent’s acts or omissions under section 161.001(b)(1) may be used in determining the

best interest of the child under section 161.001(b)(2)); In re D.M., 452 S.W.3d 462, 471 (Tex.

App.—San Antonio 2014, no pet.); see also TEX. FAM. CODE ANN. § 263.307(a) (“In considering

the factors established by this section, the prompt and permanent placement of the child in a safe

environment is presumed to be in the child’s best interest.”); In re J.O.H., 617 S.W.3d 596, 599

(Tex. App.—San Antonio 2020, no pet.) (holding that, in considering a child’s best interest, a

parent’s future conduct may be judged by their past conduct).

J.D.R.’s Age and Vulnerabilities

At the time of trial, J.D.R. was just under eleven months old. His physical and emotional

needs—including for constant supervision—are significant. See TEX. FAM. CODE § 263.307(b)(1);

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (factor B). He is placed with his great-

grandmother who desires to adopt him, and he enjoys the love and care of numerous extended

family members. See TEX. FAM. CODE § 263.307(b)(12), (13); Holley, 544 S.W.2d at 371–72 (Tex.

1976) (factors D, G). In addition, he has bonded with his two siblings, also in the same home.

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Overall, J.D.R.’s young age and need for a safe and stable home weighs against J.R.’s best interest

challenge.

J.R.’s Drug Abuse

J.R. tested positive for methamphetamine drug use, admitted an ongoing issue with

marijuana, and has failed to complete any treatment or counseling. Further, his failure to take

random drug testing as required can be seen as some evidence of ongoing drug usage even as he

was seeking to establish a relationship with J.D.R. See Interest of G.D.P., No. 05-19-01068-CV,

2020 WL 401760, at *6 (Tex. App.—Dallas Jan. 24, 2020, pet. denied) (mem. op.) (citing In re

K.J.B., No. 14-19-00473-CV, 2019 WL 5704317, at *7 (Tex. App.—Houston [14th Dist.] Nov. 5,

2019, no pet.) (mem. op.) (“[A] fact finder reasonably can infer that a parent’s failure to submit to

court-ordered drug tests indicates the parent was avoiding testing because the parent was using

illegal drugs.”)); see also In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.]

2016, pet. denied) (noting parents’ drug use supports a finding that termination is in the best

interests of the child).

Indicia of Parent-Child Relationship

J.R. did make an effort to create a bond with his child. He participated in many (but not

all) weekly visits and did well during the visits, feeding, playing, and putting the child to sleep.

J.R. expressed the desire to participate in the plan leading to reunification even though he did not

take many steps toward actually doing so. At his last visit with J.D.R., J.R. refused to provide his

caseworker with his updated contact information. Then, he failed to appear for the final trial on

the merits. See TEX. FAM. CODE § 263.307(b)(10), (11), (12); Holley, 544 S.W.2d at 371–72 (Tex.

1976) (factors B, D, H).

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Providing for J.D.R.’s Needs

Throughout J.D.R.’s placement with the Department, J.R. did not have steady employment.

He engaged in “odd end jobs.” He also did not take steps to create a stable home for J.D.R., instead

moving from friend to friend and sleeping on their couches. See TEX. FAM. CODE § 263.307(b)(11),

(12); Holley, 544 S.W.2d at 371–72 (Tex. 1976) (factors B, D, G, H).

J.R.’s Compliance with Family Service Plan

The evidence further showed J.R. failed to complete most of the services on his family

service plan. See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (in determining the best interest

of the child in termination proceedings, the trial court may properly consider that the parent did

not comply with the court-ordered family service plan for reunification with the child); In re S.B.,

207 S.W.3d 877, 887‒88 (Tex. App.—Fort Worth 2006, no pet.) (considering the failure to comply

with a family service plan as support for finding that termination is in child’s best interest).

J.D.R.’s Placement

At the time of trial, J.D.R. was living with his great-grandmother (age 75), a maternal aunt,

and two of his siblings. The plan was for the great-grandmother to adopt him along with the two

siblings so they could be raised together. The caseworker testified that J.D.R. is happy with his

family. He looks for his great-grandmother and smiles at her when she speaks, is bonded with his

siblings, and enjoys the extended family support provided.

J.D.R.’s caseworker testified that J.D.R.’s placement was not only meeting his needs but

was providing him a safe, loving environment surrounded by siblings and extended family

members. See TEX. FAM. CODE § 263.307(b)(12), (13); Holley, 544 S.W.2d at 371–72 (Tex. 1976)

(factors B, D, G). As the caseworker put it, J.D.R. is “surrounded by love and family and cousins

and aunts and uncles and everyone.”

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Ad Litem’s Recommendation

J.D.R.’s attorney ad litem aligned his recommendation to the court with the Department.

He cited J.R.’s failure to comply and J.D.R.’s strong bond with his great-grandmother and family.

See TEX. FAM. CODE § 263.307(b)(11), (12); Holley, 544 S.W.2d at 371–72 (Tex. 1976) (factors

B, D, G, H).

Analysis

J.R. did not take the necessary steps to address his drug usage, to create a safe home for his

child, or to maintain stable employment so that he may meet J.D.R.’s financial needs. “A parent’s

drug use, inability to provide a stable home, and failure to comply with a family service plan

support a finding that termination is in the best interest of the child.” In re M.R., 243 S.W.3d 807,

821 (Tex. App.—Fort Worth 2007, no pet.). Having reviewed the evidence under the appropriate

standards, we conclude the trial court could have reasonably formed a firm belief or conviction

that it was in J.D.R.’s best interest for J.R.’s parental rights to be terminated. Therefore, the

evidence was legally and factually sufficient to support the trial court’s findings. See TEX. FAM.

CODE § 161.001(b)(2).

For the reasons given above, we affirm the trial court’s order.

Lori Massey Brissette, Justice i Statutory Factors for Best Interest of the Child. The Texas legislature codified certain factors courts are to use in determining the best interest of a child: (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5) whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home;

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(8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with: (A) minimally adequate health and nutritional care; (B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development; (C) guidance and supervision consistent with the child’s safety; (D) a safe physical home environment; (E) protection from repeated exposure to violence even though the violence may not be directed at the child; and (F) an understanding of the child’s needs and capabilities; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. TEX. FAM. CODE § 263.307(b); see In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (recognizing statutory factors). ii Holley Factors. The Supreme Court of Texas identified the following factors to determine the best interest of a child in its landmark case Holley v. Adams: (A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (footnotes omitted); accord In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors).

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