Opinion
No. 04-16-00206-CV
08-31-2016
IN RE J.G.A., et al., Children
MEMORANDUM OPINION
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2015PA01023
Honorable Cathleen M. Stryker, Judge Presiding Opinion by: Patricia O. Alvarez, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Jason Pulliam, Justice AFFIRMED
This proceeding arises out of Cause No. 2015PA01023, styled In the Interest of J.G.A., et al., Children, pending in the 73rd Judicial District Court, Bexar County, Texas, the Honorable David Canales presiding. However, the termination order in this matter was signed by the Honorable Cathleen M. Stryker, presiding judge of the 224th Judicial District, Bexar County, Texas.
Appellant Y.R. appeals the trial court's order terminating her parental rights to her children, J.G.A. and M.A.A. In her only issue on appeal, Y.R. asserts the evidence was neither legally nor factually sufficient for the trial court to find, by clear and convincing evidence, that terminating her parental rights was in her children's best interest. We conclude the evidence is both legally and factually sufficient, and we affirm the trial court's order.
FACTUAL AND PROCEDURAL BACKGROUND
On November 10, 2014, the Texas Department of Family and Protective Services received a referral alleging physical neglect of minor child, J.G.A. Y.R. is the biological mother of J.G.A.
On January 12, 2015, Y.R. delivered M.A.A. at University Hospital. M.A.A. was born premature at 25.5 weeks; his meconium tested positive for THC. Y.R. was released and M.A.A. remained in the Neonatal Intensive Care Unit at University Hospital. On April 21, 2015, representatives from University Hospital contacted the Department regarding medical neglect of M.A.A. The newborn was in the Neonatal Intensive Care Unit and required surgery, but the hospital's repeated attempts to reach Y.R. for the necessary consent were unsuccessful. The referral also indicated the child was scheduled for discharge on April 22, 2015, but the hospital's last contact with either parent was on March 17, 2015.
Through this period of time, Y.R. likewise did not adhere to the Department's Parental Child Safety Plan which required J.G.A. to reside with his maternal great-grandmother and for all contact between J.G.A. and the parents to be supervised.
The Department filed its Original Petition for Protection of Children and for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship on May 18, 2015. Included in the motion was a request for emergency temporary orders naming the Department as Sole Temporary Managing Conservator of the children with the exclusive right to physical possession of the children. On May 27, 2015, the children were placed in a foster home where they remained until trial.
On March 22, 2016, after several permanency hearings and a two-day bench trial on the merits, the trial court terminated Y.R.'s parental rights to J.G.A. and M.A.A. based on (1) subparagraphs (I), (O), and (P) of section 161.001(b)(1), see TEX. FAM. CODE ANN. § 161.001(b)(1)(I), (O), (P) (West Supp. 2016), and (2) a determination that such termination was in the child's best interest, see id. § 161.001(b)(2).
Texas Family Code sections 161.001(b)(1)(I), (O), and (P) provide as follows:
(I) contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261;
(O) failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child; and
(P) used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and:
(i) failed to complete a court-ordered substance abuse treatment program; or
(ii) after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;
Y.R. does not challenge the trial court's findings concerning the statutory grounds for involuntary termination of her parental rights. See id. § 161.001(b)(1); see also In re J.F.C., 96 S.W.3d 256, 261 (Tex. 2002). Instead, she argues the trial court erred because the evidence was neither legally nor factually sufficient for it to find, by clear and convincing evidence, that terminating her parental rights was in her children's best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); accord J.F.C., 96 S.W.3d at 261.
SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
"Involuntary termination of parental rights involves fundamental constitutional rights and divests the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except for the child's right to inherit from the parent." In re L.J.N., 329 S.W.3d 667, 671 (Tex. App.—Corpus Christi 2010, no pet.) (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). As a result, appellate courts must strictly scrutinize involuntary termination proceedings in favor of the parent. Id. (citing In re D.S.P., 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi 2006, no pet.)).
An order terminating parental rights must be supported by clear and convincing evidence that (1) the parent has committed one of the grounds for involuntary termination as listed in section 161.001(b)(1) of the Family Code, and (2) terminating the parent's rights is in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001; J.F.C., 96 S.W.3d at 261. "There is a strong presumption that the best interest of the child is served by keeping the child with its natural parent, and the burden is on [the Department] to rebut that presumption." In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). "The same evidence of acts or omissions used to establish grounds for termination under section 161.001(1) may be probative in determining the best interest of the child." Id.
When a clear and convincing evidence standard applies, a legal sufficiency review requires a court to "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." In re J.L., 163 S.W.3d 79, 85 (Tex. 2005) (quoting J.F.C., 96 S.W.3d at 266). If the court "determines [a] reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true," the evidence is legally sufficient. See id. (quoting J.F.C., 96 S.W.3d at 266).
Under a clear and convincing standard, evidence is factually sufficient if "a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." In re C.H., 89 S.W.3d 17, 25 (Tex. 2002); accord In re K.R.M., 147 S.W.3d 628, 630 (Tex. App.—San Antonio 2004, no pet.). We must consider "whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." J.F.C., 96 S.W.3d at 266; accord C.H., 89 S.W.3d at 25.
Here, Y.R. does not challenge the trial court's finding that she committed one or more of the statutory grounds for involuntary termination. We, therefore, need only address the trial court's finding that termination was in the children's best interests.
B. Evidence Regarding the Best Interest of the Child
Before a trial court may terminate a parent's rights to a child, the court must make a determination that such "termination is in the best interest of the child." TEX. FAM. CODE ANN. § 161.001(b)(2); accord J.F.C., 96 S.W.3d at 261.
Applying the applicable standards of review for sufficiency of the evidence, we examine all the evidence, see J.F.C., 96 S.W.3d at 266; see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (crediting or disregarding evidence), and recite below the evidence that especially pertains to the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The trial court heard two days of testimony from a plethora of witnesses, including Y.R., and arguments from the Department's attorney, the children's ad litem, and counsel for Y.R. The testimony included the following:
1. Lakesha Williams
Lakesha Williams was the Department's lead investigator. Williams' initial contact with Y.R. was on January 22, 2016, after M.A.A.'s birth. Williams testified M.A.A. was born premature and had multiple medical issues. During their conversations, Y.R. admitted her drug of choice was marijuana, but that she also used pain medication prescribed for back pain. Williams conducted a meeting with Y.R. and another caseworker to explain the need to find suitable housing for the children. None of the individuals named by either Y.R. or her husband passed the Department's background check; several had a history with the Department, including removals, and others had substance abuse problems.
Williams further explained that due to M.A.A.'s many health issues, prior to his release from the hospital, the Department and the hospital required his caregiver be trained. Y.R. never took the necessary classes. Y.R. denied Williams' requests to see J.G.A. to ensure his well-being. Y.R. was neither complying with the safety plan, nor allowing the Department to see J.G.A. Having exhausted all available avenues to place the children with a family member, Williams requested emergency removal.
2. Delores Mower
Delores Mower, a licensed therapist, was the State's next witness. Mower testified that in August of 2015, she received a referral from the Department to meet with Y.R. every other week. Mower finally made contact with Y.R. in September and Y.R. came for her initial evaluation at the end of October. During the evaluation, Mower testified that she and Y.R. identified several problems and treatment plans, including Y.R.'s use of drugs and her numerous relapses. Y.R. scheduled a second appointment in November, but never showed. Mower testified that she tried calling Y.R.'s phone, sending text messages, and leaving voice messages. Y.R. never returned Mower's call and never returned for individual counseling. In fact, Mower testified that she took a special interest in Y.R. and "held onto the case" for several months; Mower called on a weekly basis to provide Y.R. an opportunity to return for treatment. Unfortunately, when Y.R. still had not made contact in February, Mower returned the file to the Department.
3. Y.R.
Y.R. testified the Department first became involved with her family in November of 2014. The caseworker offered her parenting classes, outpatient drug treatment, and counseling. Y.R. acknowledged using marijuana, but did not remember testing positive for amphetamines. Y.R. claimed that, with the Department's assistance, she completed outpatient drug treatment, parenting classes, found employment, and found suitable housing. When asked, Y.R. did not know why the Department elevated the case from family based to legal based.
Y.R. testified that M.A.A. was born at five months and was in the hospital "[b]ecause he was premature." She also understood there was an issue with his intestines, his right testicle required surgery, and he was on a feeding tube. When asked why she failed to respond to the hospital's calls regarding the need for consent to operate on M.A.A., Y.R. responded, "I was at work." She acknowledged the hospital left messages and that she did not return most of the calls. Y.R. contended that she ultimately provided the consent the hospital requested. When asked about M.A.A.'s impending release, Y.R. claimed she had taken the required classes, but was unable to provide the Department with the name of an acceptable family member for placement.
Y.R. testified that she was diagnosed with bipolar, depression, and anxiety when she was seventeen years old, approximately five years before the termination hearing. Y.R. did not, however, follow up with treatment or take the prescribed medications—"I just didn't." Y.R. further acknowledged using marijuana during and after her pregnancy, even after completing the outpatient treatment program. She contended that she could take care of her children's needs if she was on her medication, but conceded that she was not.
Y.R. acknowledged the Department had explained to her, and she had understood, that her failure to complete her services would result in the Department filing for an unrelated adoption. Y.R. testified that she was currently employed at Mama Margie's and that she had inherited a house approximately two weeks before the hearing. Although she completed the drug treatment, she acknowledging testing positive only a month before the hearing. When asked about placement of the children, she claimed she was capable of taking care of the children. She planned to place the children in daycare when she was working, but had not called to see if they were equipped to care for J.G.A.'s developmental issues or M.A.A.'s medical issues.
With regard to visitation, Y.R. acknowledged she had only seen her children four or five times since their placement in foster care ten months earlier. She conceded that she missed several visitations. When the Department attempted to allow a two-hour visitation to celebrate J.G.A.'s second birthday, Y.R. could not provide an explanation for her failure to make any arrangements. She did not see the children that week.
4. Elizabeth Tefteller
Elizabeth Tefteller was the Department's legal caseworker assigned to the case. The Department obtained temporary managing conservatorship of the children on June 12, 2015. Y.R. never showed up for the scheduled meetings and, thus, never participated in creating her service plan. Tefteller did, however, file the service plan with the court and explain the plan to Y.R. Tefteller confirmed Y.R. completed a parenting class and the outpatient drug treatment program; Y.R. had not provided proof of employment, did not complete the required psychological examination, failed to participate in the individual counseling, and missed several appointments with the Department.
With regard to visitation, Tefteller testified the court ordered weekly visitation, contingent upon clean drug tests. Based on her calculations, if Y.R. had taken advantage of all of the visits offered to her, she would have participated in approximately forty visits. Of the possible forty visits, however, Tefteller's records indicated Y.R. had seen her children only four times. Additionally, although Tefteller explained the visitations were specifically limited to the children and the parents, Y.R. continued to arrive with different friends and family members not previously cleared by the Department. Tefteller also explained that she made arrangements for Y.R. to have a two-hour visit with J.G.A. for his birthday; Tefteller explained that Y.R. "could pick a place, like Chuck E. Cheese, and bring some family members." The visit never happened because Y.R. never called to schedule it.
Tefteller opined that the Department made all reasonable efforts to return the children to their parents' care. They created a service plan, set up drug treatment services twice a week, attempted to arrange parent-child visitation, and contacted every name provided for possible family placement. She testified that Y.R. had not demonstrated an ability to provide the children with a safe environment. Tefteller opined that Y.R. had failed to make any changes to her lifestyle during the pendency of the case.
Tefteller also opined that the children each had very demanding needs. One-year old M.A.A. had multiple medical related issues, including: necrotizing enterocolitis (dead colon tissue); plagiocephaly requiring a cranial helmet; torticollis; on-going muscle spasms; respiratory distress syndrome; and skin issues. M.A.A.'s weakened immune system required synergists shots and all people with whom he came in contact to be immunized against the flu. J.G.A. was two years old and was nonverbal; he was exhibiting signs of autism and showing aggressive tendencies. In her opinion, Y.R. did not have the ability to care for either J.G.A. or M.A.A.
Finally, Tefteller testified that the children were happy, healthy, and thriving in their foster placement; neither child had formed a bond with Y.R. The Department's goal was to create permanency for the children, ultimately allowing for the children to be adopted by a nonfamily member.
5. A.S.
The State called A.S., the children's foster mother. A.S. testified that J.G.A. and M.A.A. were placed in her home on May 27, 2015. She and her husband had been fostering for approximately eight years and had fostered over thirty children, many of them with special needs. "[W]e just feel that this is what we can do to help kids that need a home, whether it's temporary or forever." A.S. explained that she was a foster-to-adopt placement; she had an eighteen-year-old biological daughter and a seven-year-old adopted son.
A.S. also testified about the well-being of the children and the progress they had made in the last ten months. When J.G.A. first arrived at their home, he refused physical contact with anyone.
If you tried to hug him or anything, he would just scream and push you away. He was terrified of water. If we took him outside, he didn't want to be in the grass. His secure place—he always wanted to go back into the highchair. Even after he was done eating, he would go into the highchair and cry; I guess he felt safe there.Now at the age of twenty-seven months, J.G.A. was developmentally functioning between the ages of a fourteen and eighteen-month old child. He was still nonverbal; A.S. was taking J.G.A. to daycare in an attempt to provide him additional socialization. J.G.A. also exhibited behavioral and developmental problems; he suffered from meltdowns and recently began showing signs of aggression. A.S. further explained that J.G.A. was in the process of being tested for autism and was in both occupational and speech therapy. Although J.G.A.'s pediatrician was in San Antonio, his developmental issues required a neurological specialist in Austin.
M.A.A. was placed in A.S.'s home straight from the hospital. A cranial helmet was required for his plagiocephaly and brachycephaly and he had a difficult time turning his neck. M.A.A. originally had a lot of issues feeding, but finally started using a spoon in the last month and "now he's a little pro." M.A.A.'s intestinal issues required constant monitoring and intervention. M.A.A. was fourteen months old, but developmentally functioning at a seven-month old level. M.A.A.'s medical issues required regular doctor visits, including a pulmonologist, and ophthalmologist, and a gastroenterologist in Austin.
A.S. testified that she and her husband, as well as the entire family, had bonded with the children. She averred that if the trial court terminated Y.R.'s parental rights, she and her husband were hoping to adopt both J.G.A. and M.A.A.
6. Y.R.'s Family Members
Y.R.'s attorney called several of Y.R.'s family members to testify. Adela, Y.R.'s mother testified the Department failed to provide Y.R. the services that she needed and that Y.R. cried because she wanted to care for her children. During cross-examination, Adela was surprised to find out that Y.R. was still using drugs. Adela wanted to help Y.R. with the children, but acknowledged that she was not in a position to take both of the children and care for them herself.
Amy, Y.R.'s step-mother, also testified. She disputed the Department's claims that her home was not a safe environment for J.G.A. and M.A.A. Amy testified that she was willing to provide a home for both children. She explained that she was a health care provider at a rehab facility and her employer allows her to bring her children to work. Therefore, any concerns the Department may have regarding her children unsupervised with J.G.A. or M.A.A. were unfounded.
C. Factors Considered by the Trial Court
The trial court is the sole judge of the weight and credibility of the evidence, including the testimony of the witnesses. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (requiring appellate deference to the fact-finder's findings); City of Keller, 168 S.W.3d at 819. The factors used to ascertain the best interest of the child were set forth in Holley, 544 S.W.2d at 371-72; accord E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (reciting the Holley factors). The Holley court warned that "[t]his listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent." Holley, 544 S.W.2d at 372; accord In re E.N.C., 389 S.W.3d at 807 (describing the Holley factors as nonexclusive). "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." C.H., 89 S.W.3d at 27. In fact, evidence of only one factor may be sufficient for a factfinder to form a reasonable belief or conviction that termination is in a child's best interest—especially when undisputed evidence shows that the parental relationship endangered the child's safety. See id.
In addition to consideration of the Holley factors, courts remain mindful that "the prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest." TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016); In re B.R., 456 S.W.3d 612, 615 (Tex. App.—San Antonio 2015, no pet.). In determining whether a parent is willing and able to provide the child with a safe environment, courts should consider the following statutory factors set out in section 263.307(b) of the Code, which include:
(1) the child's age and physical and mental vulnerabilities;TEX. FAM. CODE ANN. § 263.307(b); see In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *4 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.) (citing In re A.S, No. 04-14-00505-CV, 2014 WL 5839256, at *2 (Tex. App.—San Antonio Nov. 12, 2014, pet. denied) (mem. op.)); B.R., 456 S.W.3d at 615.
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report and intervention by the Department or other agency;
(5) whether the child is fearful of living in, or returning to, the child's home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home;
(7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home;
(8) whether there is a history of substance abuse by the child's family or others who have access to the child's home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision;
(11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time;
(12) whether the child's family demonstrates adequate parenting skills; and
(13) whether an adequate social support system consisting of an extended family and friends is available to the child.
When determining the best interest of a child, a trial court may consider circumstantial and direct evidence, subjective factors, and the totality of the evidence. B.R., 456 at 616 (citing In re E.D, 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied)). A factfinder may also measure a parent's future conduct by his or her past conduct to aid in determining whether termination of the parent-child relationship is in the best interest of the child. Id. We remain mindful that the grounds on which the trial court granted termination, pursuant to section 161.001 of the Code, "may also be probative in determining the child's best interest; but the mere fact that an act or omission occurred in the past does not ipso facto prove that termination is currently in the child's best interest." In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.) (internal citations omitted).
D. Analysis of Children's Best Interest
1. Desires of the Children
The children were only one and two years old at the time of the termination hearing and were not called to testify. The children both required extensive special care. J.G.A. was nonverbal, developmentally delayed, and possibly autistic. M.A.A. suffered from multiple medical issues stemming from his premature birth. The evidence supported the children were happy and healthy and doing well in the A.S.'s home; she and her family had bonded to the children and were the only family the children knew. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (internal citations omitted) ("When children are too young to express their desires, the fact finder may consider that the children have bonded with the foster family, are well- cared for by them, and have spent minimal time with a parent."). Additionally, A.S. and her husband intended to adopt both J.G.A. and M.A.A. if they became available for adoption. See TEX. FAM. CODE ANN. § 263.307(b)(13); Holley, 544 S.W.2d at 371-72. We conclude this factor weighs heavily in favor of termination.
2. Emotional and Physical Needs of the Children
The evidence further indicates Y.R. was unable to successfully address her illegal drug use or provide a nurturing and safe environment for her children. See O.N.H., 401 S.W.3d at 684 (concluding trial court permitted to consider parent's past conduct in best interest determination). Although Y.R. contended the Department failed to provide the necessary services or conduct reasonable investigations for placement with a family member, the record includes a litany of services provided and actions by the Department to reunite the children with Y.R. Although Y.R. downplayed the problems with placement in her family members' homes, the trial court was not required to accept Y.R.'s testimony and could have resolved the evidence against Y.R. See J.L., 163 S.W.3d at 85; J.F.C., 96 S.W.3d 256 at 261. Instead of viewing the Department's actions as trying to assist in reunification, Y.S. viewed herself as a victim of the Department's actions. See TEX. FAM. CODE ANN. § 263.307(b)(3), (4), (7); Holley, 544 S.W.2d at 371-72. Based on the entire record, we conclude this factor weighs heavily in favor of termination.
3. Parenting A bilities and Services A vailable
With regard to Y.R.'s use of services available to assist her with reunification, the trial court heard testimony that established Y.R. resisted utilizing most of the services offered by the Department. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72. Tefteller and the psychologist testified that a service plan was developed and they made multiple attempts to work with Y.R. However, Y.R.'s unwillingness to attend counseling or address her ongoing drug use was the cause of her failure to utilize the services. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72.
Even further, the record evidenced very little effort on the part of Y.R. to attend visitation with her children. The trial court ordered weekly visitation. In over forty weeks, Y.R. saw her children only four times. Even further, when M.A.A. was in the Neonatal Intensive Care Unit and required surgery, Y.R. did not respond to phone calls seeking her consent for anesthesia. At the time of the surgery, Y.R. had not seen M.A.A. in over a month.
Accordingly, based on the entire record, the trial court could have formed a firm belief or conviction that Y.R. failed to work with the Department and did not fully comply with her service plan. See J.L, 163 S.W.3d at 85; J.F.C, 96 S.W.3d 256 at 261. As a result, we hold these factors—parenting abilities and utilization of available programs—favor termination.
4. Stability of the Home or Proposed Placement
The record reflects the children were living with foster parents, in a stable and loving home; both children were thriving. See TEX. FAM. CODE ANN. § 263.307(b)(13); Holley, 544 S.W.2d at 371-72. Additionally, the foster parents desired for the children to stay with them permanently and were hoping to adopt both J.G.A. and M.A.A. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72.
Given Y.R.'s admissions to her continued drug usage, her failure to seek the mental health treatment she understands that she needed, her failure to participate in visitations with her children, and her inability to understand the special needs required by her children, the trial court could have reasonably determined Y.R. would be unable to provide the children with a stable and healthy environment and unable to care for the special needs each child exhibited. See TEX. FAM. CODE ANN. § 263.307(b)(3), (4), (7), (11); Holley, 544 S.W.2d at 371-72; see also B.R., 456 S.W.3d 612, 615 (stating factfinder may measure future conduct by past conduct). Accordingly, we conclude these factors weight in favor of termination.
5. Acts or Omissions of the Parent
Finally, the trial court heard testimony from several witnesses regarding Y.R.'s continuous use of drugs and inability to act in the best interests of her children. See TEX. FAM. CODE ANN. § 263.307(b)(3), (4), (7), (12); Holley, 544 S.W.2d at 371-72. Based on the evidence presented, the trial court—as the sole judge of the weight and credibility of the evidence—could have reasonably concluded that Y.R. exercised poor judgment and lacked the decision-making skills and parental abilities to provide for and parent the children in a healthy and safe manner. See H.R.M., 209 S.W.3d at 108; City of Keller, 168 S.W.3d at 819.
The record supports Y.R. was unable to effect the necessary changes within a reasonable time. The trial court found, and Y.R. does not challenge on appeal, that Y.R.
• refused to submit to a reasonable and lawful order of a court;See TEX. FAM. CODE ANN. § 161.001(b)(1)(I), (O), (P). The trial court's determination regarding Y.R.'s termination under section 161.001(b)(1) is properly considered in its findings that termination is in the best interests of the children and is, in fact, probative in determining the children's best interests. See C.H., 89 S.W.3d at 27 (holding the same evidence may be probative of both section 161.001(b)(1) grounds and best interest); O.N.H., 401 S.W.3d at 684.
• failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the; and
• used a controlled substance, in a manner that endangered the health or safety of the child; and although she completed an outpatient program, she continued to abuse a controlled substance.
Reviewing the evidence under the two sufficiency standards, and giving due consideration to evidence that the trial court could have reasonably found to be clear and convincing, we conclude the trial court could have formed a firm belief or conviction that terminating Y.R.'s parental rights to J.G.A. and M.A.A. was in the children's best interests. See J.L., 163 S.W.3d at 85; See J.F.C., 96 S.W.3d at 266; see also H.R.M., 209 S.W.3d at 108. Therefore, the evidence is legally and factually sufficient to support the trial court's order. See J.F.C., 96 S.W.3d at 266; see also H.R.M., 209 S.W.3d at 108.
CONCLUSION
The trial court found Y.R. committed the statutory grounds supporting termination of her parental rights and that termination of Y.R.'s parental rights was in J.G.A. and M.A.A.'s best interests. Y.R. only appealed the best interests of the children finding.
Having reviewed the evidence, we conclude it was legally and factually sufficient to support the trial court's finding by clear and convincing evidence that termination of Y.R.'s parental rights to J.G.A. and M.A.A., was in the children's best interests.
Accordingly, we overrule Y.R.'s sole issue on appeal and affirm the trial court's order.
Patricia O. Alvarez, Justice
TEX. FAM. CODE ANN. § 161.001(b)(1)(I), (O), (P).