Court of Appeals Tenth Appellate District of Texas
10-24-00360-CV
In the Interest of K.B., a Child
On appeal from the 77th District Court of Limestone County, Texas Judge Keith Downs, presiding Trial Court Cause No. CPS-425-A
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Mother and Father appeal from the trial court’s order terminating their
parental rights to their son, K.B. See TEX. FAM. CODE ANN. §§ 161.001(b)(1),
(b)(2). In his sole issue on appeal, Father challenges the legal sufficiency of the
evidence supporting the trial court’s best-interest finding. See id. at §
161.001(b)(2). Mother’s appointed counsel has filed a brief pursuant to Anders
v. California asserting that Mother’s appeal presents no issues of arguable
merit. See generally Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.
Ed. 2d 493 (1967). We affirm the judgment of the trial court. Background
Mother and Father have two biological children together – Ke.B. and
K.B. In a separate termination proceeding, the Department of Family and
Protective Services sought to terminate Mother and Father’s parental rights
to Ke.B. While that case was pending, K.B. was conceived. On August 17,
2023, the trial court signed an order terminating both parents’ rights to Ke.B.
Approximately three months later, K.B. was born. Father was present
at the hospital for K.B.’s birth. The Department removed K.B. at the hospital
because both Mother and K.B. tested positive for methamphetamine. At the
time of K.B.’s removal, Father admitted to daily marijuana use and to using
methamphetamine every two days for the previous two years. The Department
subsequently filed its petition to termination both parents’ rights to K.B.
Family Plans of Service for Mother and Father were made orders of the
court. Both parents were required to complete services such as drug testing,
drug treatment, and counseling. Neither parent completed any of their
services. At the time of trial, Mother was in a court-ordered inpatient
rehabilitation facility as a condition of her felony probation for endangering a
child.1 Father was in custody on drug-related felony charges. After a bench
trial, both parents’ rights to K.B. were terminated under Sections
1 The record indicates that this charge stemmed from Mother exposing Ke.B. to methamphetamine
before the parents’ rights to Ke.B. were terminated.
In the Interest of K.B., a Child Page 2 161.001(b)(1)(D), 161.001(b)(1)(E), and 161.001(b)(1)(O), and termination was
found to be in K.B.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),
(b)(1)(E), (b)(1)(O), (b)(2).
Father’s Appeal
In his sole issue on appeal, Father asserts that the evidence is legally
insufficient to support the trial court’s best-interest finding. See id. at §
161.001(b)(2). We disagree.
STANDARD OF REVIEW AND AUTHORITY
The standard of review for legal sufficiency of the evidence in cases
involving the termination of parental rights is as follows:
In a legal sufficiency review, a court should 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. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. 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.
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
In determining the best interest of a child, a number of factors have been
consistently considered which were set out in the Texas Supreme Court's
opinion, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not
In the Interest of K.B., a Child Page 3 exhaustive, but simply identifies factors that have been or could be pertinent
in the best-interest determination. Id. There is no requirement that all of
these factors must be proved as a condition precedent to parental termination,
and the absence of evidence about some factors does not preclude a factfinder
from reasonably forming a strong conviction that termination is in the
child's best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
The Holley factors focus on the best interest of the child, not the best
interest of the parent. Dupree v. Tex. Dep't of Protective & Regul. Servs., 907
S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ).
ANALYSIS
Father does not dispute the sufficiency of the evidence supporting the
“endangerment” predicate grounds and his failure to complete his service plan.
See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (b)(1)(E), (b)(1)(O). Evidence
relating to the predicate grounds may be relevant in determining the best
interest of the child. See In re C.H., 89 S.W.3d at 27-28. In deciding that
termination of Father’s parental rights was in K.B.’s best interest, the trial
court focused on Father’s pattern of illegal drug use and his failure to
participate in services, his instability due to his incarceration, and the
importance of prompt permanency for K.B.
In the Interest of K.B., a Child Page 4 A continuing pattern of illegal drug use implicates several of the Holley
factors and can support a finding that termination of parental rights is in a
child’s best interest. See In re E.D., 682 S.W.3d 595, 607 (Tex. App.—Houston
[1st Dist.] 2023, pet. denied). Drug use is a condition indicative of instability
in the home environment because it exposes the child to the possibility that
the parent may be impaired or imprisoned. See In re J.F.-G., 612 S.W.3d 373,
386 (Tex. App.—Waco 2020), aff'd, 627 S.W.3d 304 (Tex. 2021). Further, a
parent’s decision to use illegal drugs while the termination suit is pending,
when he knows he is at risk of losing his child, is relevant in determining
whether a parent poses a present or future risk of danger to the child. See In
re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.).
When the Department removed K.B. in this case, Father was on bond for
the felony offenses of possession of a controlled substance and prohibited
substance in a correctional facility – both involving methamphetamine. Based
on Father’s testimony, he frequently used marijuana and methamphetamine
for approximately two years, including while his prior termination suit was
pending. Despite facing pending felony charges and recently losing his
parental rights to Ke.B., Father continued to use methamphetamine while his
parental rights to K.B. were in jeopardy in this case. Just one month after
K.B.’s removal, Father was arrested at one of his felony court appearances
In the Interest of K.B., a Child Page 5 because he tested positive for methamphetamine.
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Court of Appeals Tenth Appellate District of Texas
10-24-00360-CV
In the Interest of K.B., a Child
On appeal from the 77th District Court of Limestone County, Texas Judge Keith Downs, presiding Trial Court Cause No. CPS-425-A
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Mother and Father appeal from the trial court’s order terminating their
parental rights to their son, K.B. See TEX. FAM. CODE ANN. §§ 161.001(b)(1),
(b)(2). In his sole issue on appeal, Father challenges the legal sufficiency of the
evidence supporting the trial court’s best-interest finding. See id. at §
161.001(b)(2). Mother’s appointed counsel has filed a brief pursuant to Anders
v. California asserting that Mother’s appeal presents no issues of arguable
merit. See generally Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L.
Ed. 2d 493 (1967). We affirm the judgment of the trial court. Background
Mother and Father have two biological children together – Ke.B. and
K.B. In a separate termination proceeding, the Department of Family and
Protective Services sought to terminate Mother and Father’s parental rights
to Ke.B. While that case was pending, K.B. was conceived. On August 17,
2023, the trial court signed an order terminating both parents’ rights to Ke.B.
Approximately three months later, K.B. was born. Father was present
at the hospital for K.B.’s birth. The Department removed K.B. at the hospital
because both Mother and K.B. tested positive for methamphetamine. At the
time of K.B.’s removal, Father admitted to daily marijuana use and to using
methamphetamine every two days for the previous two years. The Department
subsequently filed its petition to termination both parents’ rights to K.B.
Family Plans of Service for Mother and Father were made orders of the
court. Both parents were required to complete services such as drug testing,
drug treatment, and counseling. Neither parent completed any of their
services. At the time of trial, Mother was in a court-ordered inpatient
rehabilitation facility as a condition of her felony probation for endangering a
child.1 Father was in custody on drug-related felony charges. After a bench
trial, both parents’ rights to K.B. were terminated under Sections
1 The record indicates that this charge stemmed from Mother exposing Ke.B. to methamphetamine
before the parents’ rights to Ke.B. were terminated.
In the Interest of K.B., a Child Page 2 161.001(b)(1)(D), 161.001(b)(1)(E), and 161.001(b)(1)(O), and termination was
found to be in K.B.’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),
(b)(1)(E), (b)(1)(O), (b)(2).
Father’s Appeal
In his sole issue on appeal, Father asserts that the evidence is legally
insufficient to support the trial court’s best-interest finding. See id. at §
161.001(b)(2). We disagree.
STANDARD OF REVIEW AND AUTHORITY
The standard of review for legal sufficiency of the evidence in cases
involving the termination of parental rights is as follows:
In a legal sufficiency review, a court should 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. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. 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.
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
In determining the best interest of a child, a number of factors have been
consistently considered which were set out in the Texas Supreme Court's
opinion, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list is not
In the Interest of K.B., a Child Page 3 exhaustive, but simply identifies factors that have been or could be pertinent
in the best-interest determination. Id. There is no requirement that all of
these factors must be proved as a condition precedent to parental termination,
and the absence of evidence about some factors does not preclude a factfinder
from reasonably forming a strong conviction that termination is in the
child's best interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
The Holley factors focus on the best interest of the child, not the best
interest of the parent. Dupree v. Tex. Dep't of Protective & Regul. Servs., 907
S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ).
ANALYSIS
Father does not dispute the sufficiency of the evidence supporting the
“endangerment” predicate grounds and his failure to complete his service plan.
See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (b)(1)(E), (b)(1)(O). Evidence
relating to the predicate grounds may be relevant in determining the best
interest of the child. See In re C.H., 89 S.W.3d at 27-28. In deciding that
termination of Father’s parental rights was in K.B.’s best interest, the trial
court focused on Father’s pattern of illegal drug use and his failure to
participate in services, his instability due to his incarceration, and the
importance of prompt permanency for K.B.
In the Interest of K.B., a Child Page 4 A continuing pattern of illegal drug use implicates several of the Holley
factors and can support a finding that termination of parental rights is in a
child’s best interest. See In re E.D., 682 S.W.3d 595, 607 (Tex. App.—Houston
[1st Dist.] 2023, pet. denied). Drug use is a condition indicative of instability
in the home environment because it exposes the child to the possibility that
the parent may be impaired or imprisoned. See In re J.F.-G., 612 S.W.3d 373,
386 (Tex. App.—Waco 2020), aff'd, 627 S.W.3d 304 (Tex. 2021). Further, a
parent’s decision to use illegal drugs while the termination suit is pending,
when he knows he is at risk of losing his child, is relevant in determining
whether a parent poses a present or future risk of danger to the child. See In
re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.).
When the Department removed K.B. in this case, Father was on bond for
the felony offenses of possession of a controlled substance and prohibited
substance in a correctional facility – both involving methamphetamine. Based
on Father’s testimony, he frequently used marijuana and methamphetamine
for approximately two years, including while his prior termination suit was
pending. Despite facing pending felony charges and recently losing his
parental rights to Ke.B., Father continued to use methamphetamine while his
parental rights to K.B. were in jeopardy in this case. Just one month after
K.B.’s removal, Father was arrested at one of his felony court appearances
In the Interest of K.B., a Child Page 5 because he tested positive for methamphetamine. He was later placed on
deferred adjudication community supervision for both offenses. A few months
before the final hearing in this case, Father was arrested on a new felony drug
charge for possessing methamphetamine and the State filed motions to
adjudicate in both of his probation cases. The motions to adjudicate his
probation were admitted into evidence at the final hearing and alleged that
Father also tested positive for methamphetamine while he was on probation,
though this was denied by Father. Father was still incarcerated at the time of
trial and was not sure when he might be released.
Additionally, a parent’s failure to complete a service plan can be
considered in determining a child’s best interest. See In re E.C.R., 402 S.W.3d
239, 249 (Tex. 2019). The trial court may infer from a parent’s failure to
complete required services that the parent does not have the ability to motivate
himself to seek out available resources needed now or in the future in order to
promote the child’s well-being. In re C.K.T., No. 10-23-00288-CV, 2024 WL
860869, at *3 (Tex. App.—Waco Feb. 29, 2024, pet. denied) (mem. op.).
Further, a parent's past endangering conduct may create an inference that the
parent's past conduct may recur and further jeopardize the child’s present or
future well-being. See In re J.S.S., 594 S.W.3d 493, 505 (Tex. App.—Waco
2019, pet. denied). Here, some of Father’s services were specifically tailored to
In the Interest of K.B., a Child Page 6 address his illegal drug use, which was a significant factor in K.B.’s
endangerment and removal. Though Father was intermittently incarcerated
during this case, he admitted that he did not participate in any of his court-
ordered services even while he was out of custody. The trial court could
reasonably determine that Father’s failure to avail himself of the services
designed to address his illegal drug use jeopardized K.B.’s present and future
well-being and supported a finding that termination was in K.B.’s best interest.
Finally, when children are too young to express their desires, the
factfinder may consider that the children have bonded with the caregiver, are
well-cared for by them, and have spent minimal time with a parent. In re J.D.,
436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.). K.B. was
almost one year old at the time of trial. Father agreed that he had not
exercised any visitation with K.B. while the case was pending, had not seen
the child since his removal at birth from the hospital, and had no personal
relationship with K.B. Father also agreed that he did not have the present
ability to provide a home for K.B. and he could not predict when he might be
released from custody. Meanwhile, K.B. was placed with an adoption-
motivated foster family who had already adopted his older sister, Ke.B. The
record indicates that the foster family was actively addressing K.B.’s medical
and educational needs and that K.B. was bonded with them.
In the Interest of K.B., a Child Page 7 We conclude that the trial court reasonably could have formed a firm
belief or conviction that termination of Father’s parental rights was in K.B.’s
best interest. Having found that the evidence is legally sufficient to support
the trial court’s best-interest finding, we overrule Father’s sole issue.
Mother’s Appeal
Counsel for Mother filed an Anders brief asserting that she diligently
reviewed the record and that she believes the appeal to be frivolous. See
generally Anders v. California, 386 U.S. 738 (1967); In re A.S., 653 S.W.3d 298
(Tex. App.—Waco 2022, no pet.). Counsel’s brief meets the requirements of
Anders by presenting a professional evaluation demonstrating why there are
no arguable grounds to advance on appeal. See Stafford v. State, 813 S.W.2d
503, 510 n.3 (Tex. Crim. App. 1991). In her brief, counsel provided us with the
appropriate facts of the case and its procedural history, and has discussed why,
under controlling authority, there is no reversible error in the trial court’s
termination order. See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim.
App. 2008). Further, counsel for Mother has informed us that she served her
client with a copy of the Anders brief, provided a copy of the appellate record
to Mother, and informed Mother of her right to file a pro se response to the
Anders brief. See Anders, 386 U.S. at 744; Kelly v. State, 436 S.W.3d 313, 319-
In the Interest of K.B., a Child Page 8 20 (Tex. Crim. App. 2014); In re A.S., 653 S.W.3d at 299-300. Mother filed a
pro se response.
Upon receiving an Anders brief, we must conduct a full examination of
the proceedings to determine whether the appeal is wholly frivolous. Penson
v. Ohio, 488 U.S. 75, 80 (1988). Arguments are frivolous when they “cannot
conceivably persuade the court.” McCoy v. Court of Appeals, 486 U.S. 429, 436
(1988). We have reviewed the record, counsel’s brief, and Mother’s pro se
response, and we have found nothing that would arguably support an appeal
for Mother. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.
2005). We affirm the judgment of the trial court terminating Mother’s parental
rights to K.B. Mother’s appointed counsel remains appointed in this case
through any proceedings in the Texas Supreme Court unless otherwise
relieved of those duties. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016).
Conclusion
Having found that Mother’s appeal is frivolous, and having overruled
Father’s sole issue in his appeal, we affirm the judgment of the trial court.
STEVE SMITH Justice
In the Interest of K.B., a Child Page 9 OPINION DELIVERED and FILED: April 10, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed [CV06]
In the Interest of K.B., a Child Page 10