in the Interest of M. F., a Child

• Court: Court of Appeals of Texas
• Decided: August 23, 2018
• Docket: 07-18-00126-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-18-00126-CV

IN THE INTEREST OF M. F., A CHILD

On Appeal from the County Court at Law No. 1 Randall County, Texas Trial Court No. 71776-L1, Honorable Jack M. Graham, Presiding

August 23, 2018

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant B.C., the mother of M.F., appeals from the trial court’s order terminating

her parental rights to her child.1 She challenges the order through two issues. We will

affirm.

Background

B.C. and M.F.’s father were not married, but dated and used drugs together for

about a month before B.C. became pregnant. B.C. stopped using drugs when she

To protect the child’s privacy, we will refer to the mother and the child by their 1

initials and to the father as “the father.” TEX. FAM. CODE ANN. § 109.002(d) (West 2017); TEX. R. APP. P. 9.8(b). learned she was pregnant, and remained sober for four months. She relapsed later during

pregnancy and had two positive drug screens while pregnant, one in January 2017 and

one in March 2017. M.F. was born the first week of April 2017. Both B.C. and M.F. tested

negative at the time of M.F.’s birth but shortly thereafter the mother tested positive for

methamphetamine and marijuana. Three days after M.F.’s birth, the Texas Department

of Family and Protective Services filed pleadings that included a petition for protection of

a child, for conservatorship and for termination in suit affecting the parent-child

relationship. The trial court entered an order removing M.F. from B.C.’s care the same

day. From the hospital, the infant was placed with her paternal grandparents.

The trial court held the final hearing in early April 2018. At that time, B.C. was

almost thirty-eight years old and M.F. had just turned one year of age. M.F. was living

with her paternal grandparents and doing well. The grandparents expressed a desire to

adopt M.F. B.C. told the court she had used methamphetamine since 2004 and sought

and completed treatment in 2012. She later relapsed. She admitted her drug use during

pregnancy and acknowledged she had four other children, none of whom were in her

custody. She also admitted she had been “in and out of prison” and was incarcerated

during this case. She acknowledged she was currently in county jail awaiting trial for an

assault on a family member that occurred in May 2017. However, she told the court, she

no longer wanted to live her life using drugs and desired to be a mother to M.F.

The trial court terminated B.C.’s parental rights based on four predicate grounds.

See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (M), and (O) (West 2018). It found also

clear and convincing evidence supporting a conclusion that termination of B.C.’s parental

2 rights was in M.F.’s best interest. TEX. FAM. CODE ANN. § 161.001(b)(2). It appointed the

Department as the permanent managing conservator of M.F.

Analysis

Best Interest

In her first issue, B.C. contends the evidence is legally and factually insufficient to

support the trial court’s best interest finding. B.C. does not challenge the predicate

grounds under which the trial court terminated her parental rights. See TEX. FAM. CODE

ANN. § 161.001(b)(1)(D), (E), (M), and (O). Rather, she concedes the evidence is

sufficient to support those grounds given her drug use during pregnancy and her

incarceration during the case. See In re D.S., 333 S.W.3d 379, 388-89 (Tex. App.—

Amarillo 2011, no pet.) (If multiple predicate grounds are found by the trial court, we will

affirm based on any one ground because only one is necessary for termination of parental

rights. We are bound by unchallenged findings supporting termination). And, B.C.

acknowledges that the same evidence that supports the predicate grounds for termination

under section 161.001(b)(1)(D), (E), (M), and (O) is relevant to the sufficiency of the

evidence supporting the best interest finding under section 161.001(b)(2). In re C.H., 89

S.W.3d 17, 28 (Tex. 2002). However, she contends that when the Holley factors and the

factors set forth in Family Code section 263.307(b)2 are considered, the trial court’s best

interest finding should be reversed.

2 TEX. FAM. CODE ANN. § 263.307(b) (West 2018) (listing factors in determining best interest of child).

3 In evaluating the best-interest evidence for legal sufficiency in parental-rights

termination cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the court’s best interest finding was true.

In re J.P.B.,180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (citing In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002)). We review all the evidence in the light most favorable to the best

interest finding and judgment. Id. We resolve any disputed facts in favor of the finding if

a reasonable factfinder could have done so and we disregard all evidence that a

reasonable factfinder could have disbelieved. Id. We consider undisputed evidence even

if it is contrary to the finding. Id. Witness credibility issues “that depend on appearance

and demeanor cannot be weighed by the appellate court; the witnesses are not present.”

Id. (citation omitted).

We are required to perform “an exacting review of the entire record” in determining

whether the evidence is factually sufficient to support the termination of a parent-child

relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In reviewing the evidence for

factual sufficiency, we give due deference to the factfinder’s findings and do not supplant

its judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine

whether, based on the entire record, a factfinder could reasonably form a firm conviction

or belief that termination of the parent-child relationship would be in the best interest of

the child. In re C.H., 89 S.W.3d at 28. There is a strong presumption that keeping a child

with a parent is in the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

In our review of the entire record, the same evidence may be probative of both the

subsection (1) ground and best interest of the child. In re E.C.R., 402 S.W.3d 239, 249-

50 (Tex. 2013) (citing In re C.H., 89 S.W.3d at 28). Nonexclusive factors that the trier of

4 fact in a termination case may also use to evaluate the best interest of the child include:

(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) (citations

omitted). These factors are not exhaustive, and some of the factors may be inapplicable

in a given case. In re C.H., 89 S.W.3d at 27. Moreover, undisputed or significant

evidence of just one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. However, the presence of negligible

evidence relevant to each factor will not support such a finding. Id.

Significant in this case is B.C.’s fourteen-year history of methamphetamine abuse.

Over the course of that fourteen years, she had five children, four of whom were removed

from her care due to her drug use.3 The record also shows her inability to remain sober

for more than a few months despite treatment, her use of controlled substances during

her pregnancy with M.F.,4 and her incarceration during the pendency of this case. See

3 The record indicates that B.C.’s parental rights have not been terminated with regard to all of her children. B.C. testified she has “partial custody” of one of her children. Another is placed with the child’s biological father. A third child was adopted by one of B.C.’s friends. 4 Despite B.C.’s admitted use during pregnancy, the record indicates M.F. never tested positive for controlled substances.

5 In re E.C.R., 402 S.W.3d at 249 (citing In re C.H., 89 S.W.3d at 28) (evidence that

supports one or more statutory predicate grounds for termination may be probative

evidence that termination is in the child’s best interest); In re J.O.A., 283 S.W.3d 336, 346

(Tex. 2009) (trial court may consider a parent’s history of drug use and irresponsible

choices when making a determination to terminate a parent’s rights). The trial court

certainly could have taken this evidence of B.C.’s endangering conduct as strongly

favoring a finding that termination was in M.F.’s best interest. See In re R.W., 129 S.W.3d

732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (“As a general rule, conduct that

subjects a child to a life of uncertainty and instability endangers the physical and

emotional well-being of a child. Drug use and its effect on a parent’s life and [the] ability

to parent may establish an endangering course of conduct.”) (internal citations omitted);

In T.G.R.-M., 404 S.W.3d 7, 15 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing In

re S.M.L.,171 S.W.3d 472, 479 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (repeated

commission of criminal acts subjecting a parent to incarceration can negatively impact a

child’s emotional well-being)).

B.C.’s parole officer testified at the final hearing. She said she supervised B.C.

during her parole stemming from her prison sentence after her convictions of multiple

felonies. She told the court B.C. had one positive drug test for marijuana in February

2017 and admitted to using methamphetamine in March 2017. A subsequent drug screen

yielded a positive result. Both of those positive tests occurred while B.C. was pregnant

with M.F. The parole officer also testified that at the time of the final hearing, B.C. was in

county jail awaiting trial on charges of assault of a family member. B.C. had committed

a prior assault against the same family member. B.C. had also been issued a “parole

6 hold warrant.” The parole officer also informed the court that B.C. was serving probation

for a conviction in Colorado. From this evidence, the trial court could have concluded

there was a strong likelihood that B.C. would be incarcerated for additional periods,

further supporting its determination it was in M.F.’s best interest that B.C.’s parental rights

be terminated. In re T.G.R.-M., 404 S.W.3d at 15 (citation omitted).

B.C. was diagnosed with depression after M.F.’s birth. She entered a mental

health care facility for five days. She also admitted she cut herself on her arm, trying to

hurt herself. And, she admitted to using drugs after her release from the mental health

facility and agreed it was “[p]robably not” a good combination to use illegal drugs with

what the facility prescribed. B.C. testified she supported herself financially through

disability benefits she received for her depression. She did not testify to any other means

of support. These facts also weigh in favor of the trial court’s best interest finding.

By the time of the final hearing, M.F. was just one year old. “When children are

too young to express their desires, the fact finder may consider that the children have

bonded with the foster family, 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.). A Department investigator testified M.F. was placed with her paternal

grandparents and was doing “really well.” The investigator said the grandparents desire

to adopt M.F. She also said they are “able to care for her, they have a home, they have

income, they love her very much. They are getting her to all of her appointments, they

take very good care of her.” B.C. conceded that she loves “where [M.F.] is at, with her

grandparents. She is happy and well taken car[e] of, and I appreciate them very much.”

B.C. went on to say that while she did not have a relationship with the grandparents, they

7 “love [M.F.], and they take care of her, and they’re her family, and that’s more than—more

than I could give her on my own. So I’m grateful for them.” The trial court could have

seen this evidence as showing a strong bond between M.F. and the grandparents. The

trial court also had before it evidence of a lesser bond between M.F. and B.C. The record

shows B.C. attended visits with M.F. when she was not incarcerated. A Department

caseworker testified M.F. attended five or six weekly visits. On appeal, B.C. argues that

no evidence showed she harmed M.F. after the child’s birth because the child was

removed from the hospital and there was no evidence of emotional or physical harm to

the child during visits. Given the significance of the evidence supporting the bond

between M.F. and the grandparents and the paucity of evidence supporting a bond

between M.F. and B.C., we find this factor weighs in favor of the trial court’s best interest

finding.

B.C. testified to her desire to be part of M.F.’s life but did not provide the court

evidence of her plan if her child were returned to her care. As noted, at the time of the

final hearing, B.C. was in jail, awaiting trial for an assault charge. She had been

incarcerated for most of the pendency of the case. She admitted she did not know when

her trial would be or what would happen with regard to her parole. She told the court she

was “so tired of the drugs, and the people that it brings into my life . . . I want to be able

to raise [M.F.].” She testified “I am very serious about getting my life together for her.”

She told the court she had taken advantage of drug treatment in prison and had her

depression under control. She requested that the trial court not terminate her parental

rights so that “in the future, when I’ve got this behind me, I would like to have the chance

to fight for [M.F.], or at least to be part of raising her.” She testified, “And I feel good about

8 life, and I feel good about myself, and I know that I can do this. I know that I can raise

[M.F.], and I know that I can have a good life for she and I. And I like it better like this.”

She did not, however, describe any ability to care for M.F., financially or in other ways,

and did not provide any information regarding potential employment, housing or

transportation. She also did not describe to the court any ability to meet M.F.’s physical

and emotional needs and did not provide evidence of her own stability or parental abilities.

The trial court could have taken this as additional evidence that it was in M.F.’s best

interest that B.C.’s rights be terminated.

The record contains some evidence weighing against the trial court’s best interest

finding. However, evidence cannot be read in isolation but rather must be read in the

context of the entire record. In re K.L., No. 07-16-00236-CV, 2016 Tex. App. LEXIS

11989, at *12 (Tex. App.—Amarillo Nov. 4, 2016, no pet.) (mem. op.) (citation omitted).

Prior to her incarceration, B.C. “set up some of her services.” She told the court that if

she had not been incarcerated, she would have completed her services. While

incarcerated, B.C. sought psychiatric help and attended AA meetings, a twelve-step

program, and Bible study. B.C.’s parole officer testified B.C. admitted to her drug use,

asked for help and told her she “wanted to be able to keep the baby and everything, but

she needed some help.” B.C. also received prenatal care while pregnant; M.F. was born

healthy.

The trial court is the “sole arbiter when assessing the credibility and demeanor of

witnesses.” In re A.B., 437 S.W.3d at 503. Given B.C.’s long history of wrong choices,

poor parenting and criminal conduct, the trial court was not required to give great weight

to B.C.’s assertions. In re M.M.S., No. 07-16-00271-CV, 2016 Tex. App. LEXIS 11009,

9 at *20 (Tex. App.—Amarillo October 6, 2016, no pet.) (mem. op.). And, although B.C.

testified strongly that she was ready and willing to change her life and wanted to raise

M.F., largely absent from the testimony was evidence that waiting for B.C. to be available

to parent the child was in M.F.’s best interest. As this court and others have pointed out,

the best interest analysis focuses on the best interest of the child, not that of the parent.

See In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.); Dupree v.

Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas

1995, no writ). B.C. points to the law’s strong presumption that keeping a child with a

parent is in the child’s best interest. See In re R.R., 209 S.W.3d at 116. The law

recognizes also, however, the presumption that prompt and permanent placement of a

child in a safe environment is in her best interest. TEX. FAM. CODE ANN. § 263.307; In re

N.R.T., 338 S.W.3d at 677. B.C. presents no persuasive argument that postponing M.F.’s

permanent placement while B.C. resolves her criminal cases and her drug issues would

be in the child’s best interest.

The attorney ad litem for M.F. told the court that while he “sincerely hope[d] that

[B.C.]’s testimony is truthful and honest, and [he hopes] she is able to get her life turned

around, it is not in [M.F.’s] best interest to have to wait.” He said it was best for M.F. that

B.C.’s parental rights be terminated. The Department caseworkers and investigators also

said that termination was in M.F.’s best interest. Taking all of the factors and evidence of

each into consideration, we conclude the trial court could have agreed with the ad litem

and those witnesses, and formed a firm conviction that termination of B.C.’s parental

rights to M.F. was in the child’s best interest.

We resolve B.C.’s first issue against her.

10 Appointment of Department as Managing Conservator

In her second issue, B.C. argues the evidence was insufficient to support the trial

court’s appointment of the Department as M.F.’s managing conservator. While B.C.

concedes the evidence was sufficient to support the predicate grounds, she nevertheless

asserts the evidence failed to show B.C. emotionally or physically harmed M.F. after birth.

The Department argues the mother’s issue is subsumed by her first issue. We agree.

We review a conservatorship determination for an abuse of discretion and will

reverse only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611,

616 (Tex. 2007) (citation omitted). Texas Family Code section 161.207(a) provides in

part that if the court terminates the parent-child relationship with respect to both parents

or to the only living parent, the court shall appoint “a suitable, competent adult,” the

Department, or a licensed child-placing agency as managing conservator of the child.

TEX. FAM. CODE ANN. § 161.207(a).

Here, B.C. conceded the evidence presented at the final hearing was sufficient to

support the predicate grounds. And we have concluded the evidence was sufficient to

support the trial court’s findings under section 161.001(b)(2). There was no evidence

presented to establish appointment of another suitable, competent adult as conservator

of the child. The mother’s argument against the trial court’s appointment of the

Department as the permanent managing conservator is thus without merit. In re N.T.,

474 S.W.3d 465, 481 (Tex. App.—Dallas 2015, no pet.) (citations omitted). We overrule

B.C.’s second issue.

11 Conclusion

Having resolved each of B.C.’s issues against her, we affirm the judgment of the

trial court.

James T. Campbell Justice