In the Interest of K.B., a Child v. the State of Texas

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.

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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

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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.

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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

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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

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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.

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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-

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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