in the Interest of V.S., a Child

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00063-CV ___________________________

IN THE INTEREST OF V.S., A CHILD

On Appeal from the 97th District Court Clay County, Texas Trial Court No. 2020-0143C-CV

Before Kerr, Birdwell, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

After a bench trial, the trial court terminated M.S. (Father) and W.P.’s

(Mother’s) parental rights to their daughter, V.S.1 Father appeals that decision,

arguing that the evidence is legally and factually insufficient to support the finding that

terminating his parental rights was in the best interest of V.S.2 We affirm the trial

court’s judgment.

II. BACKGROUND

V.S. was three years old at the time of trial. Father and Mother separated when

V.S. was six or seven months old. V.S. eventually moved in with Father, but the

Department of Family and Protective Services began an investigation due to

allegations of drug use. V.S. tested positive for methamphetamine exposure, but

Father refused to submit to a drug test for himself. At trial, Father denied being the

source of V.S.’s exposure to drugs. After filing its petition in this case, the

Department was named V.S.’s temporary managing conservator on July 22, 2020.

We use aliases for the parents and child throughout this opinion. See Tex. R. 1

App. P. 9.8(b)(2). 2 Mother has not appealed the trial court’s decision to terminate her parental rights.

2 A. Father’s drug use

During a substance abuse assessment, Father reported that he had been using

methamphetamine for about twenty years and that he had used methamphetamine

every day, sometimes two grams a day. Father backed off this assessment in his trial

testimony, claiming that he only used methamphetamine once or twice a week in

July 2021 and had done so “on and off” for the previous year. He also claimed that

his longest period of sobriety was four years, but admitted that period was probably

from 2006 to 2010.

Father testified that he did not use methamphetamine between V.S.’s birth and

her removal, though he admitted using drugs again (continuously) following her

removal. Father claimed to have only spent $20 on drugs during the pendency of the

case, explaining that he usually bought methamphetamine for other people with their

money. When asked at trial to explain whether he was distributing

methamphetamine, Father exercised his right to remain silent. He also claimed that

the last time he used methamphetamine was November 2021, right before he went to

jail.

B. Father’s criminal history

Father had previously been convicted in state court for forgery and possession

of a controlled substance. He was placed on deferred adjudication community

supervision for the forgery offense, but his probation was revoked after he admitted

to using methamphetamines. He was convicted of forgery again in 2014. In 2017,

3 Father possessed methamphetamine on an Indian reservation and subsequently pled

guilty to this charge in federal court. Father missed the first day of trial in this case as

he began serving his federal sentence for that offense in November 2021. He was

released on December 17, 2021.

C. Father’s failure to follow service plan and lackluster visitation

The Department’s plan of service was made an order of the court. Father’s

caseworker, Shayna Pope, reviewed the service plan with Father at least three times,

most recently in August 2021 at his apartment. Father was specifically ordered to do

the following: maintain a safe and stable home, attend parenting classes, give the

Department information about anyone residing in his home, attend and participate in

a “Rebuilding Your Life” class, not engage in criminal activities, not associate with

persons who engage in criminal activities, provide a monthly budget to the

Department, find and maintain a job, complete a mental health assessment, complete

a drug assessment and resulting recommendation, attend and participate in Narcotics

Anonymous meetings at least twice a week, find a sponsor at one of these meetings,

provide the Department with a written drug relapse plan, submit to random drug tests

requested by the Department, submit to a drug assessment in the event of a failed

drug test, complete a psycho-social assessment and participate in individual

counseling, attend weekly visits with V.S., provide material necessities to V.S., and

build a positive support network.

4 Father failed to comply with the court-ordered service plan in any meaningful

way. According to Father, he lived in three different places between July 2020 and

January 2022, and was homeless at least twice. At one time, Father lived in a trailer

next to V.S.’s great-grandmother’s home but had to move out when he failed to live

up to his rent-free obligation to take care of the property. Father later moved in with

his brother. There was methamphetamine use occurring in his brother’s home while

Father was there, but he testified that he was unaware of the drug use. After leaving

his brother’s home, Father ended up back at V.S.’s great-grandmother’s property.

Pope later received information that, at the time of trial, Father was living in a

Motel 6. With regard to employment, Father had several jobs during the pendency of

the eighteen-month case, most recently working part time with a former boss who

does foundation repair. However, this job history only accounted for about eight

months of the eighteen-month period. Father also failed to turn over any kind of a

budget to his caseworker.

Father did not complete his required parenting classes or the “Rebuilding Your

Life” class and failed to complete a mental health assessment—required because he

had reported possible depression and anxiety and had previously been diagnosed with

bipolar and major depressive disorder. He did do a drug assessment in

November 2020, but failed to complete substance abuse counseling and did not

formulate a relapse prevention plan. Father did not go to drug rehabilitation (as

recommended following a failed drug test) and failed to attend Narcotics Anonymous

5 meetings weekly as required—nor did he try to obtain a sponsor. He also did not

complete a psycho-social evaluation or participate in individual counseling as ordered.

Father admitted to using methamphetamine, thus failing to abstain from

criminal conduct. Perhaps because of this, Father failed to submit to random drug

testing, admitting that he “did not make them all the time.” With regard to his missed

drug tests, Pope testified that Father never asked for any rides or transportation to the

screenings.

Father admitted that he did not provide to his caseworker the names of people

with whom he lived. Nor did he try to “develop a social network to assist [him] with

offering [V.S.] a healthy community environment.” Relevant to this, Father also

associated with people who had engaged in criminal behavior—both Father and

Mother told Pope that Father’s current girlfriend was arrested in 2021 and that she

has an open child welfare case in Montague County.

Father’s visits with V.S. were sporadic. He last saw her on November 5, 2021,

just before he went to jail. His previous visit had been about five months before that

date. The trial court had suspended Father’s visits in the fall of 2020 because he had

missed more than one drug test. Visitation was reinstated after Father resumed his

tests, but he fell into a cycle of missing (or failing) drug tests, and then having future

visits suspended. During the summer of 2021, Father seemed to be back on track,

but missed three visits in a row during August. By his own admission, Father did not

visit V.S. every time he had the opportunity, nor did he ever make up for his absences

6 by sending V.S. letters or cards. Father excused his absences by blaming oversleeping

or transportation problems, but his caseworker testified that he declined offers of

transport from her. In sum, Father visited V.S. approximately eight times during the

pendency of the eighteen-month case.

D. V.S.’s placement

V.S. has been living with K.A., a biological relative, since September 2020. V.S.

has bonded with K.A. and her other children. Pope testified that K.A. (despite going

through a recent divorce) was financially independent and could take care of V.S.

K.A.’s plan is to adopt V.S.

E. The Department’s recommendation

Pope testified that Father failed to show “good parenting abilities.” This

testimony was based on her view that Father had not been able to provide stable

housing for V.S., he was not drug testing when requested, he had trouble maintaining

employment, and he had been associating with people who have a criminal history.

Pope also asserted that Father was unable to provide stable housing for V.S. and that

he would pose a continuing danger to V.S.’s physical and emotional health. The

Department’s current plan is for K.A. to adopt V.S. Should the planned adoption fail

to occur, Pope testified that she was confident another home would adopt V.S. She

recommended to the trial court that it terminate Father’s parental rights, asserting that

termination would be in V.S.’s best interest.

7 F. The trial court’s judgment

The trial court found by clear and convincing evidence that both Father and

Mother had constructively abandoned V.S. and that they both failed to comply with

the court-ordered family service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(N),

(O). The trial court also found that termination of the parents’ rights was in the best

interests of V.S. See Tex. Fam. Code Ann. § 161.001(b)(2).

III. DISCUSSION

Father attacks both the legal and factual sufficiency of the evidence supporting

the trial court’s finding that termination was in V.S.’s best interest, arguing in part that

this finding was based on economic disadvantage. Father does not challenge the trial

court’s predicate findings under subsections (N) and (O) of Section 161.001(b)(1) of

the Family Code.

A. Standard of review generally

For a trial court to terminate a parent–child relationship, the Department must

prove two elements by clear and convincing evidence: (1) that the parent’s actions

satisfy one ground listed in Family Code Section 161.001(b)(1); and (2) that

termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re

E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).

Because “[a] parental rights termination proceeding encumbers a value ‘far more

precious than any property right,’” due process demands the heightened standard of

clear and convincing evidence. In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) (quoting

8 Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982)). Evidence is

clear and convincing if it “will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.” Tex. Fam.

Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.

B. Legal Sufficiency

In evaluating the evidence for legal sufficiency to support a best-interest

finding, we determine whether the evidence is such that a factfinder could reasonably

form a firm belief or conviction that the Department proved the termination is in the

child’s best interest. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the

evidence in the light most favorable to the finding and judgment, and we resolve any

disputed facts in favor of the finding if a reasonable factfinder could have done so. Id.

We also must disregard all evidence that a reasonable factfinder could have

disbelieved, in addition to considering undisputed evidence even if it is contrary to the

finding. Id. That is, we consider evidence favorable to termination if a reasonable

factfinder could, and we disregard contrary evidence unless a reasonable factfinder

could not. See id. In doing our job, we cannot weigh witness-credibility issues that

depend on the witness’s appearance and demeanor because that is the factfinder’s

province. Id. And even when credibility issues appear in the appellate record, we

defer to the factfinder’s determinations as long as they are not unreasonable. Id.

9 C. Factual Sufficiency

We must perform “an exacting review of the entire record” in determining

whether the evidence is factually sufficient to support a best-interest finding. 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 the

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

whether a factfinder could reasonably form a firm conviction or belief that

termination was in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re

C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of the entire record, the disputed

evidence that a reasonable factfinder could not have credited in favor of the finding is

so significant that a factfinder could not reasonably have formed a firm belief or

conviction in the truth of its finding, then the evidence is factually insufficient.

H.R.M., 209 S.W.3d at 108.

D. The Holley Factors

Although we generally presume 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), the best-interest

analysis is child-centered, focusing on the child’s well-being, safety, and development.

In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). Evidence probative of a child’s best

interest may be the same evidence that is probative of a Subsection (b)(1) ground.

In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013); C.H., 89 S.W.3d at 28; see Tex. Fam.

Code Ann. § 161.001(b)(1), (2). We also consider the evidence in light of

10 nonexclusive factors that the factfinder may apply in determining the child’s best

interest:

• the child’s desires;

• the child’s emotional and physical needs now and in the future;

• the emotional and physical danger to the child now and in the future;

• the parental abilities of the individuals seeking custody;

• the programs available to assist these individuals to promote the child’s best interest;

• the plans for the child by these individuals or by the agency seeking custody;

• the stability of the home or proposed placement;

• the parent’s acts or omissions that may indicate that the existing parent– child relationship is not a proper one; and

• the parent’s excuse, if any, for the acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249

(stating that in reviewing a best-interest finding, “we consider, among other evidence,

the Holley factors”); E.N.C., 384 S.W.3d at 807. These factors do not form an

exhaustive list, and some factors may not apply to some cases. C.H., 89 S.W.3d at 27.

Furthermore, undisputed evidence of just one factor may suffice in a particular case to

support a finding that termination is in the child’s best interest. Id. On the other

hand, the presence of paltry evidence relevant to each factor will not support such a

11 finding. Id.; In re J.B., No. 02-18-00034-CV, 2018 WL 3289612, at *4 (Tex. App.—

Fort Worth July 5, 2018, no pet.) (mem. op.).

E. Analysis under Holley

1. Child’s desires

V.S. was three years old at the time of trial. As such, she was unable to express

any opinion regarding the case and her Father.

Because there was no evidence of V.S.’s desires, this factor is neutral. See In re

X.R.L., 461 S.W.3d 633, 640 (Tex. App.—Texarkana 2015, no pet.) (“[T]he first Holley

factor is neutral because no evidence of the children’s desires was presented.”).

2. Child’s emotional and physical needs and danger to the child now and in the future

Children need long-term safety and stability. See Tex. Fam. Code Ann.

§ 263.307(a) (“[T]he prompt and permanent placement of the child in a safe

environment is presumed to be in the child’s best interest.”); In re M.A.J., 612 S.W.3d

398, 411 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (op. on reh’g); A.C. v.

Tex. Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 705–06 (Tex. App.—Austin

2019, pet. denied). Father posed a danger to V.S. because of his long-term drug use

and his inability (or disinclination) to stop using drugs during the pendency of V.S.’s

removal.

Father admitted telling MHMR that he has used methamphetamine for twenty

years. According to MHMR’s assessment, Father said that he had used up to two

12 grams of methamphetamine every day during the month of July 2021. He also

admitted during his testimony that he used methamphetamine once or twice a week

(“on or off”) for the last year and has tried to quit using drugs two or three times.

From a parent’s past misconduct, a factfinder may infer a parent’s future conduct. See

A.S. v. Tex. Dep’t of Fam. & Protective Servs., 394 S.W.3d 703, 714 (Tex. App.—El Paso

2012, no pet.) (“[E]vidence of past misconduct or neglect is permissible as an

inference that a parent’s future conduct may be measured by their past conduct.”).

This drug use continued even after V.S. was removed. Although Father

testified that he did not use drugs during the period between V.S.’s birth and

July 2020, he admitted that he began using again shortly after V.S. was removed from

his custody. See In re E.C., No. 02-20-00022-CV, 2020 WL 2071755, at *9 (Tex.

App.—Fort Worth April 30, 2020, no pet.) (mem. op.) (holding that drug use through

pendency of parental termination case weighed in favor of finding that parent posed a

danger to child now and in the future); see also In re E.R.W., 528 S.W.3d 251, 264–65

(Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A parent’s decision to engage in

illegal drug use during the pendency of a termination suit, when the parent is at risk of

losing a child, may support a finding that the parent engaged in conduct that

endangered the child’s physical or emotional well-being.”).

Importantly, Father has shown no inclination to stop using drugs. He received

a recommendation from the Department to attend rehabilitation at Pine Street in Fort

Worth, but he did not go. Even after the trial court granted an extension and Pine

13 Street had an available bed for Father, he still did not go. Moreover, Father’s

submission to random drug testing was spotty at best, and he even tested positive

once.

Based on the extensive evidence of Father’s drug use, both historically and

after V.S. was removed, the trial court was entitled to find that V.S.’s emotional and

physical needs would be adversely affected and that there would be an emotional and

physical danger to V.S. Therefore, these factors weighed in favor of the trial court’s

best-interest finding.

3. Parental abilities of Father

The caseworker explained that, in her opinion, Father failed to show good

parenting abilities. This was based on his aforementioned drug problems, along with

his criminal history, his lack of household or employment stability, and his

cohabitation with a woman who has both criminal and CPS history. In addition,

Father failed to complete any of his parenting classes, to participate in a mental health

evaluation, to attend his required Narcotics Anonymous meetings and obtain a

sponsor, and to regularly visit or maintain contact with V.S. throughout the case. By

contrast, V.S. has bonded with the relative placement family, and K.A. plans to adopt

her. This factor weighs in favor of the trial court’s best-interest finding.

4. Plans for the child of the individuals seeking custody

Father’s plans for V.S. were vague and mostly centered on his view that it was

in V.S.’s best interest to be returned to Mother. Unfortunately, Mother had many of

14 the same drug-related and stability problems experienced by Father. But Father

seemed oblivious to any of the troubling issues in Mother’s home. For example, he

was unconcerned that Mother’s current husband was convicted for failing to register

as a sex offender. Nor did Father have much of a plan for staying off drugs, save

“[s]taying busy with work.”

The Department’s plan is for V.S. to be adopted by her current placement.

Though the placement had a pending divorce, she is financially secure and shares

custody of her other children with their father. In addition, the placement remains

close to V.S.’s great-grandmother and planned to regularly visit her with V.S.

This factor weighs in favor of the trial court’s best-interest finding.

5. Stability of home versus proposed placement

Father testified that he was living in a camper on V.S.’s great-grandmother’s

property, but Mother cast doubt on this. According to the caseworker, Mother

indicated that the camper was in an unlivable state and that Father was actually staying

in a room in the house. The caseworker testified that she believed Father was living

in a Motel 6, but she was unable to confirm this information. In any event, Father

admitted to having been homeless more than once during the pendency of the case

and understood that, during these periods, he had been unable to provide a safe and

stable home for V.S.

By contrast, V.S. has been placed in a stable home, and the plan is for her to be

adopted into that family. The caseworker testified that V.S. interacts well with her

15 placement family and that her needs (including medical appointments and

transportation to and from daycare) are amply met.

This factor weighs in favor of the trial court’s best-interest finding.

6. Programs available to assist these individuals to promote the child’s best interest

Father failed to take advantage of any of the programs offered by the

Department and ordered by the court. Despite his shortcomings with regard to

parental abilities, Father failed to complete any of the court-ordered parenting classes.

Also important was Father’s refusal to participate in any of the programs that targeted

his drug abuse. After completing a drug assessment, Father did not comply with any

recommendations and did not continue with substance-abuse counseling. Father did

not go to rehabilitation, did not attend Narcotics Anonymous meetings, and failed to

appear for drug testing on three dates. Finally, though Father attended some of his

required counseling, he did not complete it and was subsequently discharged for non-

attendance.

This factor supports the trial court’s best-interest finding.

7. Parent’s acts or omissions that may indicate that the existing parent- child relationship is not a proper one and parent’s excuse, if any, for the acts or omissions

As already explained, Father has an extensive history of drug abuse, an ample

criminal history, no stable home, and infrequent visitation with V.S., and he has

refused to take advantage of programs to pull him out of his substance-abuse cycles.

16 These acts and omissions by Father indicate that the parent-child relationship between

him and V.S. is not a proper one.

But Father has excuses. Mainly, Father blames his “economic disadvantage”

for most of his problems. Of course, a trial court cannot base its decision to

terminate on evidence that the parent is economically disadvantaged, see Tex. Fam.

Code Ann. § 161.001(c)(2), but that is not what happened here. First, the trial court

specifically stated in its termination order that its decision was “not based on

evidence” that Father was “economically disadvantaged.” Second, most of the

evidence constituting Father’s bad acts (drug abuse, criminal history) is irrelevant to

Father’s financial situation. Third, Father’s economic excuses vanish when examined

in context with the actual evidence at trial. For example, though Father claimed that it

was difficult for him to arrange transportation for visiting V.S. or going to drug tests,

the caseworker testified that Father declined her offers to transport him, and Father

admitted at trial to never asking the Department for help with transportation—even

though he knew that it was a possibility. Also, even when he was forced to leave the

trailer where he lived on V.S.’s great-grandmother’s property, it was not for economic

reasons; Father apparently quit the work he was doing in lieu of paying rent.

This factor supports the trial court’s best-interest finding.

17 F. Analysis and holding

Father has done little to address the problems which—by his admission—have

plagued his relationship with V.S. By contrast, V.S. is in an adoption-motivated home

where she has bonded with the family and receives all the care she needs.

We hold that the evidence is legally and factually sufficient to show that

terminating Father’s parental rights was in the best interest of V.S., and we overrule

Father’s sole issue.

IV. CONCLUSION

Having overruled Father’s best-interest issue, we affirm the trial court’s

judgment.

/s/ Dana Womack

Dana Womack Justice

Delivered: June 23, 2022