COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-14-00175-CV
IN THE INTEREST OF Z.B., A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 323-98709J-13
MEMORANDUM OPINION1
After a bench trial, the trial court terminated H.B.’s (Mother’s) parental
rights to her daughter, Z.B. (Zoey).2 In one issue, Mother contends the evidence
1 See Tex. R. App. P. 47.4. 2 We refer to Z.B. by the fictitious name “Zoey.” See Tex. Fam. Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8(b)(2). is legally and factually insufficient to support the finding that termination is in
Zoey’s best interest. We affirm.
I. The Evidence
The Removal
The Texas Department of Family and Protective Services (the Department)
received a referral in June 2013 after Zoey was born exposed to marijuana. The
referral also included allegations that Mother had tested positive for marijuana
during the pregnancy and had previously attempted suicide. The Department’s
investigation supervisor (the investigator) testified that Mother confirmed at the
hospital that she had used marijuana during her pregnancy, that she had been
admitted to a psychiatric ward the previous year due to an attempted suicide, and
that she had been diagnosed as bipolar. Mother, who was seventeen at the
time, admitted smoking marijuana since she was fourteen. The investigator
testified Mother disclosed that her own mother (Grandmother) was an active
crack addict and would have access to both Mother and Zoey. The investigator
said Mother indicated she lived primarily with her grandmother (Great
Grandmother) or other relatives. The investigator stated Mother had no job and
no realistic plan regarding how she was going to take care of Zoey. The
investigator related that Mother had admitted she was not ready to care for Zoey
and, further, that she would not be ready until she was eighteen. As for Zoey,
the investigator determined she had aspiration issues, had a high level of
medical needs, and would require ongoing care from a specialist. The
2 investigator concluded it was clear Mother would not be able to meet Zoey’s
needs at that time. The investigator testified that Mother acknowledged her life
was unstable, Grandmother used crack, her other relatives were not supportive,
she had no financial support, and she had moved from one location to another to
get the resources she needed. Regarding work, the investigator said Mother
admitted prostituting herself with one of the alleged fathers in order to get back
the food stamp card that Grandmother had sold to the alleged father.
Family and Fictive Kin Placement Options Fail
The Department looked into relatives or alternate placements. Mother
gave the name of her sister, but her sister was not able to help. A family friend,
Ms. G., was considered for placement as well, but Ms. G. was physically unable
to care for a child. The investigator said, without elaborating, Great Grandmother
was not a good option. An alleged father later signed a waiver of interest.
The Department also requested home studies on a Ms. D. and a Mr. B.
Ms. D. is Mother’s stepmother, but Mother’s stepmother had financial and drug
issues. Mr. B. is Mother’s brother. The Department expressed safety concerns
regarding his home. The conservatorship worker said the Department tried to set
up a family group conference, but Grandmother said there were no relatives who
could help.
The Department initially placed both Mother and Zoey with a family friend,
Ms. L., but that placement broke down after about a week. The investigator said
Mother indicated she no longer wanted to live with Ms. L. and did not want to be
3 forced to take care of a small child. Ms. L. stated she was done with the process
and did not want to be considered for placement. Ms. L. related she had been
trying to help Mother and her family for years. Ms. L. and Mother brought Zoey
back to the Department and asked that Zoey be placed in foster care. Both
thought foster care was appropriate. The investigator said because Mother was
seventeen, she could have gone into foster care with Zoey, but Mother declined,
saying she was not interested in taking care of a baby or ready to do so.
Zoey’s Medical Issues
The Department’s conservatorship worker said Zoey was medically needy.
Zoey had aspiration issues that required ongoing specialist care and a heart
murmur that required follow-up. Zoey received therapy twice weekly for eating
issues. Zoey required thickened liquids. Zoey would breathe thin liquids into her
lungs, which would cause congestion and make breathing difficult. Due to
weakened trunk, leg, and arm issues, Zoey was delayed in her motor skills, was
receiving therapy for them as well, and was making progress. The doctor
thought Zoey’s heart murmur would close up on its own and, therefore, did not
require any special care. Zoey had been in a dual-licensed foster home since
September 1, 2013, that was meeting Zoey’s physical and medical needs.
Mother knew Zoey had problems with swallowing and aspiration, which
required Zoey to drink thicker liquids. Mother said that was something she could
handle. Mother said she knew the basic things about taking care of a baby, and
what she did not know, she would learn by asking a doctor. The conservatorship
4 worker, however, did not think Mother could meet Zoey’s medical, physical, or
emotional needs. The Court Appointed Special Advocate (the CASA volunteer)
agreed Zoey was a medically needy child and Mother had not even scratched the
surface of what she needed to do to care for Zoey.
The Service Plan
The Department prepared a service plan for Mother, and the Department
gave Mother her service plan on August 2, 2013—about ten months before trial.
The service plan required Mother to undergo an assessment through MHMR,
complete parenting classes, undergo a drug and alcohol assessment and follow
through on any recommendations, obtain stable housing, obtain stable
employment, and demonstrate an ability to care for Zoey. Regarding Mother’s
unstable housing, the conservatorship worker said moving from home to home
with various different individuals with unknown criminal histories or drug use was
a concern. The conservatorship worker had no verification of any employment.
The conservatorship worker thought Mother had an eighth grade education and
did not have, to the conservatorship worker’s knowledge, any special skills. The
conservatorship worker said Mother did not complete her parenting classes and
individual counseling. MHMR had no record of Mother coming to it for an
evaluation. Mother did not complete a drug assessment or any drug assessment
program. The conservatorship worker concluded it was fair to say Mother did not
cooperate in her court-ordered services. Because Mother had transportation
barriers, the Department provided Mother with four or five bus passes, but when
5 Mother did not use them, the Department stopped issuing bus passes to Mother.
Mother had no personal transportation but relied, instead, on family members.
Mother testified she did not attend services because they cost money and
because the telephone numbers for the services were wrong. Mother said she
was turned away from parenting classes because they required money. The
conservatorship worker, however, stated the Department would have paid for all
services, including the drug tests. Mother said transportation was also a major
problem and she told the Department about it, but the Department’s only
response was to give her three bus passes.
The Visits and Bonding
According to the conservatorship worker, Mother attended only about thirty
percent of her visits. The conservatorship worker observed seven or eight visits
and said Mother would attend to Zoey but would hand Zoey off to someone else
if Zoey cried. The conservatorship worker did not think Zoey recognized or had a
bond with Mother. Mother provided neither supplies nor gifts.
The conservatorship worker said that since January 2014 until the trial in
May 2014, Mother had visited Zoey only three times, which was detrimental to
Mother’s ability to bond with Zoey. The conservatorship worker did not think
Zoey had bonded to Mother because Zoey appeared confused when looking at
Mother and appeared to have difficulty remembering Mother.
6 In contrast, Mother said she enjoyed her visits with Zoey. Mother thought
Zoey had some bond with her. Mother acknowledged it was hard to bond with
someone when contact was not regular, but she nevertheless felt a bond.
The CASA volunteer testified she observed visits between Zoey and
Mother, that Mother was happy to see Zoey, and that Mother was engaged with
Zoey. She observed nothing inappropriate or disturbing about the visits.
However, the CASA volunteer said Mother’s failure to attend many visits
concerned her very much. The only other concern the CASA volunteer had was
that Mother seemed uncomfortable or unsure of herself when Zoey cried, so
Mother would hand Zoey off to someone else who was also attending the visit.
The CASA volunteer attributed it to Mother’s inexperience.
Stability of Housing
The conservatorship worker described Mother’s situation as transient. The
conservatorship worker said that over the course of the case, Mother had lived in
multiple homes with various people. The conservatorship worker said Mother
had lived with Grandmother, Great Grandmother, friends in Fort Worth, friends in
Arlington, and then friends in Fort Worth. The conservatorship worker said
moving was hard on a baby and developmentally children needed stability,
structure, safety, and familiarity with the people in the home.
Mother admitted moving from time to time. Mother said she moved in
search of stability for her and Zoey. When she felt a home was unstable, she
would move and try to find something better. Mother testified that at the time of
7 the termination trial she was living with a friend and had been living there two
weeks. Living in the home were her friend, her friend’s sister, her friend’s sister’s
baby, her friend’s mother, and her friend’s father, who was a pastor. Mother said
everyone got along and it was a stable environment. No one in the home,
including Mother, used drugs, and Mother had access to her friend’s car.
Mother’s Marijuana Use
Mother acknowledged Zoey was born positive for marijuana. Mother also
acknowledged the most likely reason Zoey tested positive was because Mother
was smoking marijuana. Mother admitted smoking marijuana in the past,
admitted smoking marijuana while not knowing she was pregnant, but denied
smoking marijuana after learning she was pregnant. Mother said she tested
positive for marijuana in March 2013 because she was around people who were
smoking and not because she personally was smoking.
The conservatorship worker said the Department arranged for Mother to
take a drug test a week before trial. Mother failed to make the appointment. The
conservatorship worker said when a parent fails to take a drug test, the
Department presumes the result would have been positive.
Whether Mother was Bipolar or Suicidal
The conservatorship worker said Mother admitted to her that Mother was
bipolar. Mother, however, denied telling the investigator she was bipolar. Mother
denied ever being clinically diagnosed as having a bipolar disorder, did not
believe she had a bipolar disorder, and had no idea why the Department thought
8 she had a bipolar disorder. She acknowledged having been evaluated at Trinity
Springs but denied being diagnosed as bipolar.
Mother also denied trying to commit suicide. Mother said she was
admitted to a hospital for an evaluation. Mother explained that Grandmother
signed her into the hospital, and it was Grandmother who said Mother was
suicidal.
Mother’s Employment
Mother said she was currently working as a cashier at Braum’s. She
started at Braum’s two days before trial. Mother said she made eight dollars an
hour and anticipated getting a raise every ninety days. Mother planned on
working at Braum’s until she could get a better job. Before that she had helped
her brother, who was an auto mechanic, and acknowledged otherwise never
having had any stable employment. Mother also acknowledged that other than
odd jobs, she did not have any other source of income and that she did not
receive any type of governmental assistance.
Mother denied ever prostituting herself. Mother said Grandmother
exchanged food stamps for money with someone named Hector, and Hector
gave Mother gifts while Mother was pregnant. Mother thought that possibly
explained why others thought she was prostituting herself. Mother denied having
any sexual relations with Hector.
Mother Attempts to Improve Her Education
9 Mother said she had been attending Everest College for the past three
months and was trying to get her GED, which she thought might take another six
months. Mother traveled to Everest College by taking the bus with passes given
to her by either her friends or her mother. After getting her GED, she planned to
continue at Everest College to earn either a two-year or four-year degree. She
thought getting a better education would enable her to obtain a better job and
earn more money.
The Department’s Plan - Adoption
The conservatorship caseworker thought termination was in Zoey’s best
interest and explained that growing up in foster care was difficult for children.
Termination would make Zoey available for adoption, and adoption offered Zoey
familial permanency. The conservatorship worker said the Department had
made reasonable efforts to return Zoey to Mother and did not think Mother had
shown she could provide a safe and stable home. The conservatorship worker
said the Department’s plan was to have the current caregivers adopt Zoey.
Zoey’s current foster parents were committed to providing her with a forever
home.
Mother’s Plans
At trial, Mother testified she loved Zoey and wanted to care for her. Mother
thought she was capable of taking care of Zoey. Mother stressed she now had a
stable home and planned on having Zoey placed with her there. Mother
indicated she had spoken to everyone in her new home and everyone was good
10 with Mother bringing Zoey home with her. Mother believed they would provide a
good support system.
Mother said she was only seventeen when Zoey was born. She now had a
valid ID, a job, and a home, and she was attending school. She said she had
everything she needed and, if given more time, would be able to provide for
Zoey. Mother said that without an income and without stable transportation, she
had not been able to work her services. Now that she had an income and stable
transportation, she was more independent. Mother did not have a driver’s
license but nevertheless intended to drive her friend’s car. Mother acknowledged
doing so was not safe, but she intended to work on getting a driver’s license too.
II. The Trial Court’s Findings and Mother’s Issue
The trial court found grounds for termination under subsections
161.001(1)(D) (endangering conditions or surroundings), 161.001(1)(E)
(endangering conduct), 161.001(1)(N) (constructively abandoned child), and
161.001(1)(O) (failure to comply with court order). See Tex. Fam. Code Ann.
§ 161.001(1)(D), (E), (N), (O) (West 2014). Mother does not contest these
findings. The trial court also found termination was in Zoey’s best interest. See
Tex. Fam. Code Ann. § 161.001(2). In one issue, Mother attacks both the legal
and factual sufficiency of the evidence to support that finding.
11 Standards of Review
Termination Considerations Generally
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)
(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012); E.R., 385 S.W.3d at 563; Holick, 685 S.W.2d at 20. The
rights of natural parents, however, are not absolute, and the 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). The purpose of the State’s intervention
in the parent-child relationship is to protect the best interests of the children, not
to punish parents for their conduct. Id.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001 & 161.206(a); E.N.C., 384 S.W.3d
at 802. “[C]onjecture is not enough.” E.N.C., 384 S.W.3d at 810. Due process
demands this heightened standard because “[a] parental rights termination
12 proceeding encumbers a value ‘far more precious than any property right.’” E.R.,
385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397).
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 (West 2014); E.N.C., 384 S.W.3d
at 802.
For a trial court to terminate a parent-child relationship, the party seeking
termination must establish by clear and convincing evidence that the parent’s
actions satisfy one ground listed in section 161.001(1) of the Texas Family Code
and that termination is in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001(1)–(2); E.N.C., 384 S.W.3d at 803; In re J.L., 163 S.W.3d 79, 84 (Tex.
2005). Both elements must be established; termination may not be based solely
on the best interest of the child. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—
Fort Worth 2012, no pet.).
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). But prompt
and permanent placement of the child in a safe environment is also presumed to
be in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2014).
13 The Legal Sufficiency Standard of Review
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged finding was
proven. 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. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. 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. That is, we consider evidence favorable to termination if a
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id. “A lack of evidence does not constitute clear
and convincing evidence.” E.N.C., 384 S.W.3d at 808.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the factfinder’s province. J.P.B.,
180 S.W.3d at 573. 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. If we determine that no reasonable factfinder could form a
firm belief or conviction that the grounds or best interest for termination were
proven, then the evidence is legally insufficient, and we must render judgment for
the parent. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
14 The Factual Sufficiency Standard of Review
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant them with our own. In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire record,
a factfinder could reasonably form a firm conviction or belief about the truth of the
allegations. Tex. Fam. Code § 161.001; In re C.H., 89 S.W.3d 17, 25 (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.
We review the entire record to determine the child’s best interest. In re
E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence used to establish
grounds under subsection (1), such as endangerment and abandonment, may
prove probative when establishing best interest under subsection (2) of section
161.001 of the Texas Family Code. C.H., 89 S.W.3d at 28. Nonexclusive factors
that the trier of fact in a termination case may also use in determining 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;
15 (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); 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 are not exhaustive; some listed factors may be inapplicable
to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed 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. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
III. Discussion and Application
The Desires of the Child
Regarding the desires of the child, Zoey was approximately ten months old
at the time of trial. In the absence of evidence regarding Zoey’s desires, Mother
argues this factor effectively does nothing to support the best interest finding.
We agree this factor is inapposite to this case. 16 The Emotional and Physical Needs of the Child Now and in the Future
Regardless of who raised Zoey, the record revealed that she was a
medically needy child. The record demonstrated that the foster family, which
also planned to adopt Zoey should Zoey become available for adoption, was
meeting Zoey’s physical and medical needs. Conversely, there was evidence
Mother at times simply declined to care for Zoey. There was also evidence
suggesting Mother’s and Zoey’s placement with Ms. L. fell apart because Mother
did not want to be forced to take care of Zoey and wanted to leave Mother’s own
placement with Ms. L. for that reason. Finally, both the conservatorship worker
and the CASA volunteer noted Mother was uncomfortable taking care of Zoey
when she cried and would hand Zoey to someone else rather than care for Zoey
herself.
There was also evidence that children developmentally need stability.
Regardless of the explanation, Mother moved frequently. Although Mother found
her current housing stable, she had been living in it only two weeks before trial.
Mother’s testimony revealed that she would move out of housing when it became
unstable in search of stability. The evidence suggested Mother’s housing
destabilized with time, and the trial judge might not have shared Mother’s
optimism about her current placement, especially if a medically needy infant were
added to the home and if Mother showed reluctance to care for the child.
The trial court could have reasonably concluded Mother had not been able
to meet Zoey’s emotional and physical needs while the case was pending and
17 would not be able to meet them thereafter. See In re J.D., 436 S.W.3d 105, 118
(Tex. App.—Houston [14th Dist.] 2014, no pet.) (“A fact finder may infer from a
parent’s past inability to meet a child’s physical and emotional needs an inability
or unwillingness to meet a child’s needs in the future.”). This factor weighs in
favor of termination being in Zoey’s best interest.
The Emotional and Physical Danger to the Child Now and in the Future
Other than Mother’s use of marijuana during the pregnancy, Mother argues
the record is devoid of any evidence of physical or emotional harm to Zoey. The
question is not one of actual harm but one of endangerment. The Department
did not need to prove that the parent’s conduct creating the danger was directed
at the child or that the child actually suffered injury to succeed in terminating
parental rights. Boyd, 727 S.W.2d at 533. “Endanger” means to expose a child
to loss or injury or to jeopardize the physical or emotional well-being of the child.
Id. Mother has not contested the trial court’s findings that she had knowingly
placed or had knowingly allowed Zoey to remain in conditions or surroundings
that endangered Zoey’s physical or emotional well-being or that she had
engaged in conduct or knowingly placed Zoey with persons who had engaged in
conduct that endangered Zoey’s physical or emotional well-being. As noted
above, Mother showed an unwillingness to care for Zoey. The trial court could
have reasonably concluded that merely because Mother was now eighteen and
not seventeen changed nothing. See J.D., 436 S.W.3d at 118 (“A fact finder may
infer from a parent’s past inability to meet a child’s physical and emotional needs
18 an inability or unwillingness to meet a child’s needs in the future.”). Similarly, as
noted above, the trial court could have reasonably found Mother’s housing
instability represented a danger to Zoey’s development. Mother’s refusal to take
a drug test a week before trial could have persuaded the trial court that Mother’s
marijuana usage was not a thing of the past. See In re C.A.B., 289 S.W.3d 874,
885 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (stating that factfinder could
reasonably infer that failure to submit to drug screening was due to drug usage);
In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.) (stating
that history of drug abuse was relevant to best interest). We conclude this factor
weighs in favor of termination being in Zoey’s best interest.
The Parental Abilities of the Individuals Seeking Custody
Zoey’s foster family and prospective adoptive family were meeting her
physical and emotional needs. Mother’s handing Zoey off to another person
when Zoey cried suggested Mother was inexperienced. Mother did not complete
her parenting classes. The CASA volunteer thought Mother had not yet
scratched the surface of what she needed to do to care for Zoey. This factor
weighs in favor of termination being in Zoey’s best interest.
The Programs Available to Assist These Individuals to Promote the Best Interest of the Child
Mother failed to take advantage of the services the Department offered
her. When offered the opportunity to go into foster care along with Zoey, Mother
declined. Mother received no government assistance. The trial court could have
19 concluded Mother failed to access assistance for herself and would fare no better
for Zoey. This factor weighs in favor of termination being in Zoey’s best interest.
The Plans for the Child by These Individuals or by the Agency Seeking Custody
Mother argues she had taken many steps to ensure the stability and safety
of both her and Zoey’s future. Mother also argues she had obtained a job, had
stopped using drugs, was working toward getting her GED, and thereafter
planned to earn a college degree. All these steps were laudable, but the trial
court could have reasonably concluded questions remained. Mother refused to
take a drug test a week before trial, which suggested she would have tested
positive. See C.A.B., 289 S.W.3d at 885 (factfinder could reasonably infer that
failure to submit to drug screening was due to drug usage). Mother obtained her
job only two days before trial. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009)
(stating that even significant evidence of improved conduct, especially if it is of
short duration, does not conclusively negate the probative value of a history of
irresponsible choices); In re B.D.M., No. 02-13-00388-CV, 2014 WL 1510131, at
*8 (Tex. App.—Fort Worth Apr. 3, 2014, no pet.) (mem. op.) (stating that recent
improvement alone is not sufficient to avoid termination of parental rights); In re
K.D.C., No. 02-12-00092-CV, 2013 WL 5781474, at *16 (Tex. App.—Fort Worth
Oct. 24, 2013, no pet.) (mem. op.) (same). With or without Zoey in Mother’s
care, whether Mother had the necessary discipline to continue going to school
and obtain her GED remained to be seen. There was evidence Mother
possessed only an eighth grade education, and the trial court could have
20 reasonably questioned Mother’s optimism about making up four years of high
school within a matter of months.
The Department’s plan was to have Zoey’s current caregivers adopt Zoey.
The current caregivers could give Zoey a forever home. They were meeting
Zoey’s physical and medical needs. The Department’s plan offered stability.
Mother’s plan did not offer the same stability. This factor weighs in favor of
termination being in Zoey’s best interest.
The Stability of the Home or Proposed Placement
Mother asserts she had a stable home in which no drugs were used. She
was living with a friend, and the friend’s father was a pastor. Mother contends
the other members of the household would welcome Zoey and would provide a
Mother had, however, lived in her current home only two weeks at the time
of trial. The trial court could have concluded whether the current home was
stable remained to be seen. Mother’s previous homes consistently became
unstable. We conclude that notwithstanding Mother’s optimism, two weeks was
insufficient to show stability. See J.O.A., 283 S.W.3d at 346 (stating that even
significant evidence of improved conduct, especially if it is of short duration, does
not conclusively negate the probative value of a history of irresponsible choices);
B.D.M., 2014 WL 1510131, at *8 (stating that recent improvement alone is not
sufficient to avoid termination of parental rights); K.D.C., 2013 WL 5781474, at
21 *16 (same). This factor weighs in favor of termination being in Zoey’s best
interest.
The Acts or Omissions of the Parent which May Indicate that the Existing Parent- Child Relationship is not a Proper One
Mother contends the record is devoid of any acts or omissions toward
Zoey. The question is not whether the acts or omissions were directed at Zoey.
The question is whether there were any acts or omissions that suggested the
parent-child relationship was not a proper one. The evidence showed there were
such acts and omissions. When Zoey was born, Mother indicated she was not
ready to take care of her. When Zoey and Mother were both placed with Ms. L,
Mother again balked at taking care of Zoey and wanted to leave Ms. L. Mother
attended only about thirty percent of her scheduled visits with Zoey. In the
approximately four months preceding trial, Mother visited Zoey only three times.
Mother was uncooperative about working services that would have improved her
parenting. See In re A.B., 269 S.W.3d 120, 129 (Tex. App.—El Paso 2008, no
pet.) (discussing parent’s failure to complete service plan when determining best-
interest). When drug usage was an issue in the case, Mother failed to take a
drug test a week before trial. See C.A.B., 289 S.W.3d at 885 (stating that
factfinder could reasonably infer that failure to submit to drug screening was due
to drug usage); D.M., 58 S.W.3d at 814 (stating that history of drug abuse
relevant to best interest). These facts weigh in favor of termination being in
Zoey’s best interest.
22 Any Excuse for the Acts or Omissions of the Parent
Mother acknowledges she did not complete her services, but she
maintains this was due to a lack of transportation and due to the Department’s
giving her incorrect telephone numbers for the various services. There was,
however, testimony that the Department had provided Mother with bus passes
but had stopped providing them when Mother did not use them. Mother herself
testified about successfully using bus passes to go to Everest College. The trial
court could have concluded Mother knew how to use the bus system when
properly motivated and her failure to work her services was more a function of
lack of motivation than a function of lack of transportation. Regarding the
telephone numbers, the trial court could have concluded that any difficulty with
incorrect numbers could have and should have been corrected with contact and
communication with the conservatorship worker. Assuming the phone numbers
were incorrect, Mother’s inability to obtain correct phone numbers again showed
a lack of initiative and motivation.
Mother acknowledged she moved around quite a bit, but she maintained
the moves were motivated by her search for stability and her search was
ultimately successful, as she considered her current living arrangements stable.
The trial court could have, however, concluded Mother’s stated quest for stability
was itself an acknowledgement of instability. The trial court could have also
found that the two weeks Mother had been in her current home was no guaranty
of future stability. See J.O.A., 283 S.W.3d at 346 (stating that even significant
23 evidence of improved conduct, especially if it is of short duration, does not
conclusively negate the probative value of a history of irresponsible choices);
B.D.M., 2014 WL 1510131, at *8 (stating that recent improvement alone is not
sufficient to avoid termination of parental rights); K.D.C., 2013 WL 5781474, at
*16 (same).
In short, the trial court could have concluded Mother’s explanations,
excuses, and optimism were all the product of immaturity. The trial court could
have also concluded Mother was no more ready at eighteen than she was at
seventeen to raise a medically needy child. See In re T.S., No. 14-05-00348-CV,
2006 WL 1642218, at *9 (Tex. App.—Houston [14th Dist.] June 15, 2006, no
pet.) (mem. op.) (stating that despite parent’s youth, focus remained on inability
to care for children and risks children would be exposed to if returned to parent).
We find this factor weighs in favor of termination being in Zoey’s best interest.
Other Factors
There was evidence Zoey had not bonded to Mother. Mother and Zoey
lived together about one week while with Ms. L. immediately after Zoey’s birth.
Thereafter Mother attended only about thirty percent of her visits with Zoey. In
the four months leading up to trial, Mother had seen Zoey only three times.
Mother maintained there was a bond despite the sporadic and infrequent visits.
The conservatorship worker, however, thought Zoey had difficulty recognizing
Mother and had no bond with her. Although it was undisputed Mother loved
Zoey and behaved appropriately during visits, the trial court could have
24 reasonably found that Zoey had not bonded to Mother. See Smith v. Tex. Dep’t
of Protective & Regulatory Servs., 160 S.W.3d 673, 682 (Tex. App.—Austin
2005, no pet.) (stating that best interest focus is on the child, not the needs and
desires of the parent). Placing Zoey with Mother would have meant breaking the
established relationship Zoey had with her current placement, which she had had
since September 1, 2013 (about eight of her ten months of life), for the purpose
of establishing a nonexistent or, at best, very attenuated bond with Mother. This
weighs in favor of termination being in Zoey’s best interest.
Conclusion
Reviewing the evidence in the light most favorable to the trial court’s best
interest finding and concluding such finding was not unreasonable, we hold the
trial court could have formed a firm belief or conclusion that best interest was
proven. See J.F.C., 96 S.W.3d at 266; J.D.P., 180 S.W.3d at 573. The evidence
was legally sufficient. Similarly, after reviewing the entire record, we hold a
factfinder could have reasonably formed a firm conviction or belief that
termination was in Zoey’s best interest. See C.H., 89 S.W.3d at 28. The
evidence was factually sufficient. Using either standard, the Department met the
clear-and-convincing burden of proof. See Tex. Fam. Code Ann. § 161.001. We
overrule Mother’s issue and affirm the trial court’s judgment.
25 /s/ Anne Gardner ANNE GARDNER JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DELIVERED: October 23, 2014