In the Interest of T.D., a Child v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00205-CV
No. 07-24-00206-CV
No. 07-24-00207-CV
No. 07-24-00215-CV

IN THE INTEREST OF F.T., T.D., K.T., AND K.C., CHILDREN

On Appeal from the 320th District Court
Potter County, Texas
Trial Court Nos. 097249-D-FM, 097250-D-FM, 097945-D-FM, and 097477-D-FM
Honorable Carry Baker, Associate Judge Presiding

November 5, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Mother, seeks reversal of the trial court’s judgments terminating her

parental rights to her children, F.T., T.D., K.T., and K.C.1 In her sole issue on appeal,

Mother challenges the sufficiency of the evidence to support the trial court’s finding that

1 To protect the privacy of the parties, we refer to the appellant as “Mother,” and to the children by

their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). The parental rights of the
fathers of T.D., K.T., and K.C. were also terminated in this proceeding. None of the fathers has appealed.
termination of her rights is in the best interest of the children. We affirm the judgments of

the trial court.

BACKGROUND

The Texas Department of Family and Protective Services became involved with

Mother in September of 2022, when both Mother and K.T. tested positive for marijuana

at the time of K.T.’s birth. At the hospital, Mother admitted to the Department investigator

that she had used marijuana. She agreed to participate in a safety plan whereby her

family members would supervise her with her children. After Mother and K.T. were

released from the hospital, test results came back showing marijuana and amphetamine

in K.T.’s meconium. Mother agreed to a drug screen, which was positive for

methamphetamine, cocaine, and marijuana. Mother denied using methamphetamine.

However, she acknowledged that she had taken Ecstasy after being released from the

hospital.

The Department offered Mother family-based safety services, but Mother’s family

members were not willing to participate. The Department sought and obtained an

emergency removal order. K.T., F.T., T.D., and K.C., all of whom were under the age of

six, were placed in foster homes and screened for drugs. All four children tested positive

for illegal substances.2

2K.T. tested positive for methamphetamine, cocaine, and marijuana; F.T. tested positive for
methamphetamine and cocaine; T.D. tested positive for cocaine; and K.C. tested positive for
methamphetamine.

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The Department developed a service plan that required Mother to obtain stable

housing and employment; participate in visitation with the children; complete and follow

recommendations of an outreach, screening, assessment, and referral (OSAR) program;

maintain a drug-free lifestyle; submit to random drug screenings; complete a psychosocial

assessment and follow recommendations; attend individual counseling sessions; and

complete parenting classes. The plan was made an order of the court and Mother was

made aware of the order.

Mother completed an OSAR in November of 2022. However, because Mother

continued to test positive for drugs, she was asked to complete another OSAR, which she

did not do. Mother missed multiple drug screens during the pendency of the case. Of

the drug screens she completed, Mother tested negative only one time. Mother

participated in a psychosocial assessment but did not complete the recommendations.

She completed her parenting classes and participated in visitation with the children until

February of 2024.

Mother did not attend the final hearing in April of 2024. Mother’s caseworker

testified that Mother’s drug use was the “main issue” in the case. She further testified

that, based on documentation and Mother’s own admission, Mother had not stopped

using drugs. The caseworker believed it was in the best interest of the children to

terminate Mother’s parental rights due to Mother’s continued drug use and failure to

complete services. The attorney and guardian ad litem for the children agreed that

termination of Mother’s parental rights was in the best interest of all four children.

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At the conclusion of the hearing, the trial court terminated Mother’s rights to her

children based on the predicate grounds enumerated in Texas Family Code section

161.001, subsections (b)(1)(D), (E), and (O) and the best-interest ground in subsection

(b)(2).3 Mother brought this appeal.

APPLICABLE LAW

A parent’s right to the “companionship, care, custody, and management” of her

child is a constitutional interest “far more precious than any property right.” Santosky v.

Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re M.S.,

115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural

parents are not absolute” and “[t]he 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)

(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may

forfeit her parental rights by her acts or omissions, the primary focus of a termination suit

is protection of the child’s best interests. See id.

In a case to terminate parental rights under section 161.001 of the Family Code,

the petitioner must establish, by clear and convincing evidence, that (1) the parent

committed one or more of the enumerated acts or omissions justifying termination, and

(2) termination is in the best interest of the child. § 161.001(b). Clear and convincing

evidence is “the measure or degree of proof that will produce in the mind of the trier of

3 Further references to “section” or “§” are references to the Texas Family Code.

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fact a firm belief or conviction as to the truth of the allegations sought to be established.”

§ 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Both elements must be

established, and termination may not be based solely on the best interest of the child as

determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533

(Tex. 1987); In re K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied).

We will affirm the termination order if the evidence is both legally and factually sufficient

to support any alleged statutory ground the trial court relied upon in terminating the

parental rights if the evidence also establishes that termination is in the child’s best

interest. In re K.C.B., 280 S.W.3d at 894–95.

The clear and convincing evidence standard does not mean the evidence must

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall

that the trier of fact has the authority to weigh the evidence, draw reasonable inferences

therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the

right to resolve credibility issues and conflicts within the evidence and may freely choose

to believe all, part, or none of the testimony espoused by any witness. Id. Where

conflicting evidence is present, the factfinder’s determination on such matters is generally

regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no

writ).

The appellate court cannot weigh witness credibility issues that depend on

demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,

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the appellate court must defer to the factfinder’s determinations, if those determinations

are not themselves unreasonable. Id.

ANALYSIS

In her sole issue, Mother challenges the factual and legal sufficiency of the

evidence to support the best-interest finding made under section 161.001(b)(2). She does

not contest the predicate grounds for termination under section 161.001(b)(1).

When reviewing the legal sufficiency of the evidence in a termination case, the

appellate court should look at all the evidence in the light most favorable to the trial court’s

finding “to determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.” In re J.F.C., 96 S.W.3d at 266. To give appropriate

deference to the factfinder’s conclusions, we must assume that the factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We

disregard all evidence that a reasonable factfinder could have disbelieved or found to

have been not credible, but we do not disregard undisputed facts. Id. Even evidence that

does more than raise surmise or suspicion is not sufficient unless that evidence can

produce a firm belief or conviction that the allegation is true. In re K.M.L., 443 S.W.3d

101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we determine that

no reasonable factfinder could have formed a firm belief or conviction that the matter that

must be proven was true, then the evidence is legally insufficient, and we must reverse.

Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96

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S.W.3d at 266. We must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.

Id. We must also consider whether disputed evidence is such that a reasonable factfinder

could not have resolved the disputed evidence in favor of its finding. Id. If, considering

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, then the evidence is factually insufficient. Id.

A determination of best interest necessitates a focus on the child, not the parent.

In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts

examine the entire record to decide what is in the best interest of the child. In re E.C.R.,

402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s

best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006) (per curiam).

In assessing whether termination is in a child’s best interest, the courts are guided

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.

1976). These factors include: (1) the desires of the child, (2) the emotional and physical

needs of the child now and in the future, (3) the emotional and physical danger to the child

now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the

programs available to assist these individuals to promote the best interest of the child, (6)

the plans for the child by these individuals or by the agency seeking custody, (7) the

stability of the home or proposed placement, (8) the acts or omissions of the parent that

may indicate that the existing parent-child relationship is not proper, and (9) any excuse

for the acts or omissions of the parent. Id. “[T]he State need not prove all of the factors
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as a condition precedent to parental termination, ‘particularly if the evidence were

undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,

95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory

grounds for termination may also constitute evidence illustrating that termination is in the

child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best-interest analysis

may consider circumstantial evidence, subjective factors, and the totality of the evidence

as well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.). We must also bear in mind that a child’s need for permanence through the

establishment of a stable, permanent home has been recognized as the paramount

consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.

App.—Dallas 2007, no pet.).

The trial court was allowed to consider evidence in support of the predicate

grounds in making the best-interest determination and Mother does not challenge those

findings on appeal. The trial court’s unchallenged predicate grounds are probative in the

best-interest determination, In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.—Houston [14th

Dist.] 2014, pet. denied), and are significant in our review of the best-interest finding.

Emotional and Physical Needs of Children; Emotional and Physical Danger to Children

In this case, the Department’s main concern was Mother’s ongoing substance

abuse. A parent’s continued drug use demonstrates an inability to provide a stable

environment for the child and an inability to provide for the child’s emotional and physical

needs. In re E.M., 494 S.W.3d 209, 222–23 (Tex. App.—Waco 2015, pet. denied). The

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evidence showed that Mother tested positive for illegal substances on multiple occasions

during the pendency of the case. In a drug screen performed less than two weeks before

trial, Mother tested positive for amphetamine, methamphetamine, and marijuana.

Furthermore, Mother failed to appear for several drug tests requested by the Department.

Those failures are considered positive results under her service plan. In re T.R.L., No.

10-14-00290-CV, 2015 Tex. App. LEXIS 2178, at *14 (Tex. App.—Waco Mar. 5, 2015, no

pet.) (mem. op.) (“A factfinder may reasonably infer from a parent’s refusal to take a drug

test that the parent was using drugs.”); In re C.R., 263 S.W.3d 368, 374 (Tex. App.—

Dallas 2008, no pet.) (trial court could reasonably infer parent avoided taking drug tests

because she was using drugs). A parent’s drug use supports a finding that termination

of parental rights is in the best interest of the child. In re E.C.R., 638 S.W.3d 755, 768

(Tex. App.—Amarillo 2021, pet. denied). The factfinder can give “great weight” to the

“significant factor” of drug-related conduct. In re K.C., 219 S.W.3d at 927.

Mother’s Parental Abilities and Programs Available to Assist Her

Although Mother completed some of the requirements of her service plan, she

failed to comply with others, including drug testing and individual counseling. Mother

began a 30-day program at a substance-abuse treatment facility but left the facility before

completing the program. The caseworker testified that although Mother made some

progress during the first six months of the case, Mother had not worked on any of her

court-ordered services since March of 2023, more than a year before the final hearing.

Mother participated in visits with the children, although she regularly arrived late. At her

last visit with the children in February of 2024, Mother used “belligerent words” and

“cause[d] a scene” in front of other families, which upset the children.
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A trial court may consider a parent’s failure to comply with a plan of service in

making its best-interest determination. In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—

Fort Worth 2006, no pet.); see also In re D.A., No. 02-22-00260-CV, 2022 Tex. App.

LEXIS 9346, at *35 (Tex. App.—Fort Worth Dec. 22, 2022, pet. denied) (mem. op.)

(“Although evidence showed that Mother had completed some steps of the service plan,

her missed drug tests, failed drug tests, [and] excuses to delay tests . . . could have led

the trial court to find that Mother had gone through the motions in completing her service

plan but had not made lasting changes to benefit her children.”). The factfinder can infer

from a parent’s failure to take the initiative to utilize available programs that the parent did

not have the ability to motivate herself in the future. In re S.P., 509 S.W.3d 552, 558 (Tex.

App.—El Paso 2016, no pet.). The trial court could have also found that Mother’s failure

to appear at the termination hearing indicated a lack of motivation to parent her children.

See In re J.D.S., 111 S.W.3d 324, 327 (Tex. App.—Texarkana 2003, no pet.) (“The

absence of a parent at the trial to terminate his or her parental rights is prejudicial to the

parent. The parent’s absence could leave the fact-finder with the impression that the

proceeding is not important to the parent.”); see also In re K.G.-J.W., No. 01-17-00739-

CV, 2018 Tex. App. LEXIS 1664, at *29 (Tex. App.—Houston [1st Dist.] Mar. 6, 2018, pet.

denied) (mem. op.) (“[T]he record shows that Mother was aware of the trial date but

nonetheless failed to appear; thus, demonstrating a lack of motivation to be [the child’s]

parent.”). This evidence weighs heavily in favor of the best-interest finding.

Stability of Home or Proposed Placement

Stability and permanence are paramount in the upbringing of children. In re J.D.,

436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The stability of the
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proposed home environment is an important consideration in determining whether

termination of parental rights is in a child’s best interest. In re D.M., 452 S.W.3d 462, 472

(Tex. App.—San Antonio 2014, no pet.). Mother’s service plan reflected that she did not

have stable housing or stable employment in the months before trial. The evidence at

trial indicated that Mother had recently been staying with a friend and that she had been

staying with a different friend or relative the month before. Mother provided no plan for

the children’s care and did not demonstrate she could provide them a safe and stable

home. The Department planned to place F.T. with his father, who appeared at trial and

testified that he wanted F.T. to be placed in his home. F.T.’s father was employed, had

stable housing, and had a daycare plan in place for F.T.4 The Department’s plan for T.D.,

K.T., and K.C. was to find an adoptive home that would allow the three children to stay

together. The caseworker stated that the Department was “looking into” a prospective

home at the time of trial. Because there was no evidence showing that Mother had any

plan for the children, this factor weighs in favor of the best-interest determination.

Applying the applicable Holley factors to the evidence, we conclude that legally

and factually sufficient evidence supports the trial court’s finding that termination of

Mother’s parental rights is in the best interest of F.T., T.D., K.T., and K.C. See In re S.B.,

207 S.W.3d at 887–88 (parent’s drug use, inability to provide stable home, and failure to

comply with service plan supported best-interest finding). We overrule Mother’s challenge

to the trial court’s finding.

4 F.T.’s father was appointed as F.T.’s permanent managing conservator.

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CONCLUSION

Having overruled Mother’s sole issue on appeal, we affirm the judgments of the

trial court.

Judy C. Parker
Justice

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