Opinion
No. 06-21-00114-CV
04-08-2022
In the INTEREST OF A.B., G.B., A.B., and C.B., Children
Alex Tyra, Law Office of Alex Tyra, PC, Longview, for Appellant B., H. Jonathan Hyatt, Hyatt & Hyatt, PLLC, Longview, for Appellant B., M. Rebecca L. Safavi, Office of General Counsel, TD FPS, Austin, for Appellee. Christina G. Hollwarth, Longview, Civil - Ad Litem for A.B., G.B., A.B., C.B., Children.
Alex Tyra, Law Office of Alex Tyra, PC, Longview, for Appellant B., H.
Jonathan Hyatt, Hyatt & Hyatt, PLLC, Longview, for Appellant B., M.
Rebecca L. Safavi, Office of General Counsel, TD FPS, Austin, for Appellee.
Christina G. Hollwarth, Longview, Civil - Ad Litem for A.B., G.B., A.B., C.B., Children.
Before Morriss, C.J., Stevens and Carter, JJ.
Jack Carter, Justice, Retired, Sitting by Assignment
OPINION
Opinion by Justice Carter
Following a bench trial in a suit brought by the Texas Department of Family and Protective Services (the Department), Mother's parental rights to her four children were terminated on four grounds specified in the Texas Family Code—Section 161.001(b)(1), subsections (D), (E), (O), and (P). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P) (Supp.). The trial court further found that termination was in the children's best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2) (Supp.). On appeal, Mother argues that the evidence was legally and factually insufficient to support termination, that the evidence was legally and factually insufficient to show that termination was in the children's best interests, and that the trial court abused its discretion when it denied her motion for a continuance—thereby necessitating her attendance at trial via Zoom.
We affirm the trial court's order because (1) the trial court did not abuse its discretion in denying Mother's motion for a continuance, (2) Mother did not adequately brief her legal and factual sufficiency issues as to the grounds of termination and, therefore, waived those complaints, and (3) the evidence is legally and factually sufficient to support the trial court's best-interest finding.
I. Factual and Procedural Background
Mother has four children—seven-year-old A.D.B., six-year-old G.B., four-year-old A.B., and two-year-old C.B. Christopher is the father of C.B., and Michael is the father of A.D.B., G.B., and A.B. Mother appeals the termination of her parental rights to each of her four children.
We use initials and pseudonyms to identify the children and their respective fathers, and we refer to the appellant as Mother to protect the identities of the children. See Tex. R. App. P. 9.8.
Although Christopher's parental rights were terminated, he is not a party to this appeal. Michael, whose parental rights were also terminated, filed a notice of appeal. Michael has since filed a motion to dismiss his appeal. We grant Michael's motion and dismiss his appeal. See Tex. R. App. P. 42.1(a)(1).
The Department's investigative supervisor, Ashley Burnette, testified that she was familiar with the circumstances relating to the Department's removal of Mother's four children from the home. The initial intake on February 1, 2021, was based on a report of neglectful supervision of C.B. by Mother. Mother had reported to law enforcement that Christopher had abducted C.B. Although that allegation proved untrue, law enforcement (1) observed that Mother was acting erratic and (2) was concerned that she may have been under the influence and unable to care for C.B. The Department investigator met with Mother at her home on February 4, 2020. Mother explained that she left C.B. with Christopher so that she could go out with friends. When Mother returned the following morning, Christopher had left C.B. with his mother. Mother stated that she had not used drugs in months and denied using drugs at the time of the intake.
Mother also indicated, at the time of the intake, that she was trying to get away from Christopher and that she wanted to go to a shelter but did not have transportation and did not want her children living in a shelter. The Department investigator requested that Mother and each of the children undergo drug screening. Mother's urinalysis drug screening on February 17, 2020, was negative for all substances. On February 19, the Department determined that Mother had refused to participate in a hair-follicle screening.
On March 5, the Department investigator determined that neither Mother nor the children had submitted to hair-follicle drug screening. The Department contacted Mother several more times in March regarding the allegations relating to drug use. Finally, on March 12, 2020, the Department requested an order to participate in services from the trial court. The order required Mother to undergo drug screening, which took place April 2, 2020.
On March 30, 2020, a Department investigator contacted Christopher, who stated that he had used marihuana and other drugs with Mother but would not specify what the other drugs were. Christopher was caring for C.B. after Mother had taken C.B. to his grandfather. According to the evidence, Mother began using methamphetamine after finishing high school.
The Department then contacted Michael, who stated that he had seen his daughters three weeks prior when he picked them up from Mother's residence in Big Sandy. Michael did not know where his three children were at the time of the Department's contact. On March 31, the Department located the three girls at the residence of their maternal grandmother. Mother stated that she left the Big Sandy residence because she and Christopher had a verbal altercation.
On April 7, the Department received Mother's hair-follicle test results, which revealed positive results for amphetamine and methamphetamine. On the same day, the Department learned that A.D.B.’s hair-follicle test results revealed the presence of methamphetamine. Michael tested positive for amphetamine and methamphetamine, and Christopher tested positive for amphetamine, methamphetamine, cannabinoids, and cocaine metabolites. Based on those test results, among other things, the Department sought and obtained emergency removal of the children on April 7, 2020.
Mother's family service plan required her to participate in random drug testing, participate in visitations, maintain a job and a home, participate in the Beginnings program, and complete a drug assessment through the East Texas Council on Alcohol and Drug Abuse (ETCADA). When Mother substantially completed her service plan, the Department returned the children to her care on a monitored return in January 2021. Later, in March 2021, the Department removed the children from the monitored return due to Mother's drug use. Mother denied continued drug use but failed to comply with requests for drug tests in June and July 2021. In the face of such refusals, the Department presumes the test results will be positive. Mother's last in-person visit with the children was May 29, 2021. After the children's removal from monitored return, Mother did not regularly maintain visits and did not demonstrate sobriety.
Jennifer James, a Department conservatorship worker, testified that Mother was arrested on July 25, 2021, and was incarcerated in the Rockwall County Jail, where she remained until the time of trial. Before she was arrested, Mother was living with her mother. Mother had previously lived with Christopher and had lived with a different boyfriend before that. James did not believe that the children could be safely reunified with Mother because Mother did not have the ability to provide a safe and stable environment for the children. James believed that naming Mother as managing conservator of the children would impair their physical health and emotional development. She testified that, when children grow up in a home where there is drug use, there is a loss of structure that can lead to mental health issues and affect schoolwork. Further, a parent's incarceration can cause stress, anxiety, and depression in children.
Mother was facing a felony charge, and her case had not been tried.
A.D.B. and C.B. were placed in the Hurley foster home in Sulphur Springs and were doing well at the time of trial. G.B. and A.B. were placed in the Offutt foster home in Pickton. Before the monitored return, all four children had been living in the Hurleys’ home. After the second removal, the children had to be split among two foster homes.
The Department was exploring the possibility of placing all four of the children with Michael's stepmother and Michael's father in Maine. At the time of trial, the Department had completed its requirements and was waiting on an assessment from Maine. That said, the Department had concerns about placing the children in Maine because the grandfather had "some DWIs on his records." This family had also moved approximately twenty times in the past ten years, so there was a question of stability.
James testified that the Department's ultimate goal for the children was to keep them together, and she believed that would be possible. The Hurleys indicated that they would be willing to be a permanent placement for all four children, and they wished to adopt all four of the children. The children were safe, stable, and secure in their placements.
James stated that Mother had been in and out of jail and could not provide stability for the children. She was positive for illegal substances at the beginning of the case and was presumed to continue to test positive. James believed it was in the children's best interests to terminate Mother's parental rights.
Foster Mother Denise Hurley testified that she and her husband were the placement for all four of the children in April 2020. Then the children went on monitored return to Mother in January 2021. After the monitored return failed, A.D.B. and C.B. were returned to the Hurleys in March 2021. The Hurleys only had room for two of the children because they had taken in three foster children after the children in this case went back to Mother in January 2021. During their time with the Hurleys, all of the children became more settled and stable. CASA volunteer Freda Goerner testified that she believed that termination of Mother's parental rights was in the children's best interests. Mother was incarcerated at the time of trial and did not have the means to provide for the children. Mother also did not make a good effort to reunify with her children after they were removed from monitored return. Goerner believed that adoption of all four children by the Hurleys was in the children's best interests.
The children's maternal grandmother (Grandmother) testified that she was like a third parent to the children and had a very close relationship with them. She explained that health and financial issues prevented her and her husband from taking the children. Even so, Grandmother testified that she wanted to maintain a relationship with the children. Grandmother also expressed concern that, even though Mother could be a good mother, she was troubled. Grandmother believed that Mother could, if given the chance, achieve some kind of relationship with the children again. According to Grandmother, it would be in the children's best interests to maintain a relationship with Mother. But, if Mother were released from jail at the time of trial, Grandmother did not believe the children would have been safe in her care. Mother had been having drug issues for approximately nine years. Grandmother testified that, at the time of trial, the children were in the best place they could be.
Mother testified that she started experimenting with drugs when she was seventeen. She stopped using drugs when she became pregnant when she was eighteen. She resumed drug use after that. Mother stated that she never used drugs while she was pregnant.
Mother testified that she participated in counseling over the phone as a requirement before the monitored return, but she did not learn a lot from that. Mother stated that she was able to prove to the Department that she could be a responsible parent. She maintained structure and routine for the children. The parenting and domestic violence classes helped Mother a great deal. Mother stated that her drug use was only occasional and that, before the children were removed, she worked at Wendy's and then at Skeeter Boats. Mother stopped going to school in December 2020 when she knew the children would be on monitored return in January. She visited the children regularly before the monitored return. After the children were returned, Mother maintained contact with the Hurleys. Mother testified that she experienced a relapse and used methamphetamine before the monitored return began in January 2021. This happened after Mother had completed services. Mother stated that she did not use illegal drugs while the children were in her care during the monitored return.
Mother stated that she would be released from jail by October 2021. On release, Mother planned to go to in-patient rehabilitation. Mother did not intend to reunite with Michael, Christopher, or her former boyfriend.
In 2017, Mother was arrested for assault on the children's paternal step-grandmother and was given probation. Mother also had a pending case in Gregg County for family violence assault against her brother. In 2021, Mother was arrested in Rockwall County for manufacture and delivery of a controlled substance and stated that the sentencing range for her charge was five to ninety-nine years. Mother admitted that, although she had seventeen months to utilize the resources provided to her, she nevertheless had a relapse.
II. No Abuse of Discretion in Denying the Motion for a Continuance
When the trial court called for appearances on the first day of trial, Mother's attorney announced "not ready" for trial. Mother's attorney explained that Mother had filed a motion for a continuance because, even though the trial court previously issued a bench warrant for Mother's appearance at trial, the Gregg County Sheriff's Department would not execute the warrant. Mother's attorney further explained that he had been unable to communicate with Mother via Zoom while she was incarcerated. Counsel was able to speak with Mother by telephone, but because of the nature of the criminal charges against Mother, counsel was limited on what he was able to discuss with Mother in preparation for trial. Finally, counsel explained that Mother's appearance at trial via Zoom would inhibit his ability to speak with her during trial.
The verified motion for a continuance, filed the day before trial, mirrored the reasons articulated by counsel in court. It explained that, although the trial court had issued a bench warrant on September 8, 2021, the warrant would not be executed by the Gregg County Sheriff's Department.
The Department responded that it had multiple witnesses present and ready to testify. The trial court indicated that the Texas Supreme Court's emergency order encouraged trial courts to conduct Zoom hearings in the face of COVID concerns. The trial court indicated that it had concerns regarding COVID, that "[t]he numbers in Gregg county over the [previous] weeks [had] not been good at all," and that several attorneys in the courtroom were wearing masks. The trial court also questioned the premise that Mother's appearance by Zoom would impede counsel's ability to try the case, stating, "If you need to speak with [Mother] sometime during the case, you simply need to ask the Court. I can take a recess, put y'all in [a] breakout room as we did earlier this morning, and you can consult with your client in private." The trial court concluded that it had been trying cases via Zoom "on a consistent and regular basis" over the previous year and, therefore, denied the request for a continuance.
The Governor declared a state of disaster in all 254 counties in the State of Texas in response to the imminent threat of the COVID-19 pandemic on March 13, 2020. The Texas Supreme Court issued several emergency orders regarding the conduct of court proceedings during the emergency.
We review the denial of a motion for a continuance for an abuse of discretion. In re T.C.H. , No. 06-16-00054-CV, 2016 WL 7175291, at *6 (Tex. App.—Texarkana 2016, no pet.) (mem. op.) ; In re R.F. III , 423 S.W.3d 486, 490 (Tex. App.—San Antonio 2014, no pet.). We will sustain the trial court's ruling absent a finding that "the trial court acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable." In re R.F. III , 423 S.W.3d at 490 (quoting Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2007) ). The trial court may consider the entire procedural history of the case when determining whether to deny a motion for a continuance. In re J.G. , No. 12-18-00111-CV, 2018 WL 5318008, at *2 (Tex. App.—Tyler Oct. 29, 2018, pet. denied) (mem. op.).
Here, the trial court cited COVID concerns in denying Mother's motion for a continuance, deciding that Mother would be adequately represented via her remote appearance on Zoom. At the time of trial, on September 14, 2021, the Texas Supreme Court's Fortieth Emergency Order Regarding the COVID-19 State of Disaster was in effect. It provides, in part:
3. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal, without a participant's consent:
b. except as this Order provides otherwise, allow or require anyone involved in any hearing, deposition, or other proceeding of any kind—including but not limited to a party , attorney, witness, court reporter, grand juror, or petit juror—to participate remotely, such as by teleconferencing, videoconferencing, or other means.
Fortieth Emergency Order Regarding COVID-19 State of Disaster , 629 S.W.3d 911, 912 (Tex. 2021) (emphasis added). Under this order, the trial court had the authority to require Mother to participate in the trial remotely via Zoom. The trial court also addressed counsel's concerns regarding communication with his client during trial, stating that counsel needed only advise the court of the need for a recess, and counsel and his client would be placed in a breakout room for private discussion. Based on these facts, we cannot conclude that the trial court "acted without reference to any guiding rules and principles, such that its ruling was arbitrary or unreasonable." In re R.F. III , 423 S.W.3d at 490 (quoting Low , 221 S.W.3d at 614 ). We overrule this point of error.
Mother also claims that her right to procedural due process was violated when she was required to attend the trial remotely via Zoom. To the extent that Mother complains that her due process rights were denied because she did not appear in person at trial—and instead appeared by Zoom video conference—we find that this complaint has not been preserved for our review. Mother made no objection on this basis in the trial court and instead has raised it for the first time on appeal. "Under Rule 33.1(a)(2) of the Rules of Appellate Procedure, in order to present a complaint for appellate review, the record must reflect that the trial court ‘(A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule ... and the complaining party objected to the refusal.’ " In re Z.L.T. , 124 S.W.3d 163, 165 (Tex. 2003) (quoting TEX. R. APP. P. 33.1(a)(2) ); see In re R.J.B. , No. 04-18-00804-CV, 2019 WL 451681, at *2 (Tex. App.—San Antonio Feb. 6, 2019, no pet.) (mem. op.) (holding due process complaint about trial court's failure to postpone trial waived because appellant asserted it for the first time on appeal); In re Z.L. , No. 09-20-00194-CV, 2020 WL 7251473, at *3 (Tex. App.—Beaumont Dec. 10, 2020, pet. denied) (mem. op.) ; see also In re L.M.I. , 119 S.W.3d 707, 710–11 (Tex. 2003) (complaint of due process violation must be raised in the trial court). Moreover, the record shows Mother appeared, participated in the trial, and testified on her own behalf before the sole trier of fact—the trial court. We overrule this point of error.
This argument was raised in connection with Mother's complaint that the trial court abused its discretion in failing to grant her motion for a continuance.
Although Mother did not raise her due process complaint in the trial court, we recognize that inmates do "not have an absolute right to appear in person in every court proceeding." In re Z.L.T. , 124 S.W.3d at 165.
Mother complains that her inability to be present at trial could have left the trier of fact with an impression that the proceeding was not important to her. To the contrary, the trial court was aware of Mother's request to be present in person and the reasons for her remote attendance on Zoom. The record also indicates that at least two other witnesses appeared at trial either via Zoom or via telephone.
III. Grounds for Termination
In her next issue, Mother complains that the trial court committed fundamental error when it terminated her parental rights pursuant to Section 161.001(b)(1), subsections (D), (E), (O), and (P), of the Family Code without legally or factually sufficient evidence. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P).
"The natural right existing between parents and their children is of constitutional dimensions." In re E.J.Z. , 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985) ). "Indeed, parents have a fundamental right to make decisions concerning ‘the care, custody, and control of their children.’ " Id. (quoting Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). "Because the termination of parental rights implicates fundamental interests, a higher standard of proof—clear and convincing evidence—is required at trial." Id. (quoting In re A.B. , 437 S.W.3d 498, 502 (Tex. 2014)). This Court is required to "engage in an exacting review of the entire record to determine if the evidence is ... sufficient to support the termination of parental rights." Id. (quoting In re A.B. , 437 S.W.3d at 500 ). "[I]nvoluntary termination statutes are strictly construed in favor of the parent." Id. (quoting In re S.K.A. , 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (quoting Holick , 685 S.W.2d at 20 )).
"In order to terminate parental rights, the trial court must find, by clear and convincing evidence, that the parent has engaged in at least one statutory ground for termination and that termination is in the child's best interest." Id. (citing TEX. FAM. CODE ANN. § 161.001 ; In re E.N.C. , 384 S.W.3d 796, 798 (Tex. 2012) ). " ‘Clear and convincing evidence’ is that ‘degree of proof that 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.’ " Id. (quoting TEX. FAM. CODE ANN. § 101.007 ) (citing In re J.O.A. , 283 S.W.3d 336, 344 (Tex. 2009) ). "This standard of proof necessarily affects our review of the evidence." Id.
"In our legal sufficiency review, we consider all the evidence in the light most favorable to the findings to determine whether the fact-finder reasonably could have formed a firm belief or conviction that the grounds for termination were proven." In re L.E.S. , 471 S.W.3d 915, 920 (Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) ; In re J.L.B. , 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.) ). "We assume the trial court, acting as fact-finder, resolved disputed facts in favor of the finding, if a reasonable fact-finder could do so, and disregarded evidence that the fact-finder could have reasonably disbelieved or the credibility of which reasonably could be doubted." Id. (citing In re J.P.B. , 180 S.W.3d at 573 ).
"In our review of factual sufficiency, we give due consideration to evidence the trial court could have reasonably found to be clear and convincing." Id. (citing In re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) ). "We consider only that evidence the fact-finder reasonably could have found to be clear and convincing and determine ‘whether the evidence is such that a fact[-]finder could reasonably form a firm belief or conviction about the truth of the ... allegations.’ " Id. (quoting In re H.R.M. , 209 S.W.3d at 108 (quoting In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002) ); In re J.F.C. , 96 S.W.3d 256, 264, 266 (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, then the evidence is factually insufficient." Id. (quoting In re J.F.C. , 96 S.W.3d at 266 ). " ‘In making this determination,’ we must undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." Id. (quoting In re A.B. , 437 S.W.3d 498, 503 (Tex. 2014) (quoting In re C.H. , 89 S.W.3d at 26 )). "We also recognize that the trial court, as the fact-finder, is the sole arbiter of a witness’ demeanor and credibility, and it may believe all, part, or none of a witness’ testimony." In re A.M. , No. 06-18-00012-CV, 2018 WL 3077784, at *3 (Tex. App.—Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M. , 209 S.W.3d at 109 ).
"Despite the profound constitutional interests at stake in a proceeding to terminate parental rights, ‘the rights of natural parents are not absolute; protection of the child is paramount.’ " In re L.E.S. , 471 S.W.3d at 920 (quoting In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003)) (quoting In re J.W.T. , 872 S.W.2d 189, 195 (Tex. 1994) (citing In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003) )). "A child's emotional and physical interests must not be sacrificed merely to preserve parental rights." Id. (quoting In re C.A.J. , 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015, no pet.) (citing In re C.H. , 89 S.W.3d at 26 )).
"Only one predicate finding under Section 161.001 [b](1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest." Id. at 923 (quoting In re O.R.F. , 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied) ) (quoting A.V. , 113 S.W.3d at 362 ) (citing In re K.W. , 335 S.W.3d 767, 769 (Tex. App.—Texarkana 2011, no pet.) ). Even so, in In re N.G. , the Texas Supreme Court held that due process demands that we review the evidence supporting findings under Grounds D and E when they are challenged on appeal because termination of parental rights under these Grounds "may have implications for ... parental rights to other children." In re N.G. , 577 S.W.3d 230, 234 (Tex. 2019) (per curiam). As a result, we would typically focus our analysis on Grounds D and E. Here, however, we find that Mother has failed to adequately brief the issue of why the evidence is legally and factually insufficient to support termination under any of the four grounds on which termination was based.
In her brief, Mother points to In re G.M. , 596 S.W.2d 846, 847 (Tex. 1980), in which the Texas Supreme Court determined that due process requires the application of the clear and convincing evidence standard of proof in parental-rights termination cases. Mother then cites In re J.F.C. , 96 S.W.3d 256, 264 (Tex. 2002), for the definition of clear and convincing evidence as "the measure or degree of proof that 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." Next, Mother proceeds to her argument, which states, in its entirety:
The record in this case shows that the State did not meet its burden by "clear and convincing evidence" that would "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." .... There is no legally and factually sufficient evidence in the Record that complies with In re G.M. , 596 S.W.2d 846 (Tex. 1980) and In the Interest of J.F.C. , 96 S.W.3d 256, 264 (Tex. 2002). The Judgment below should be vacated and an order in favor of Appellant—giving back to Appellant her fundamental liberty interest "to make decisions concerning the care, custody, and control of ..." her children. Troxel v. Granville , 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).
This is the entirety of Mother's argument in support of her complaint that the evidence was legally and factually insufficient to support termination. "The Texas Rules of Appellate Procedure require an appellant to provide ‘a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.’ " In re J.Y. , 528 S.W.3d 679, 688 (Tex. App.—Texarkana 2017, no pet.) (quoting TEX. R. APP. P. 38.1(i) ). "Bare assertions of error, without argument or authority, waive error." McKellar v. Cervantes , 367 S.W.3d 478, 484 n.5 (Tex. App.—Texarkana 2012, no pet.) ; see Fredonia State Bank v. Gen. Am. Life Ins. Co. , 881 S.W.2d 279, 284–85 (Tex. 1994) ("discussing ‘long-standing rule’ that point may be waived due to inadequate briefing"); In re A.S. , 241 S.W.3d 661, 663 (Tex. App.—Texarkana 2007, no pet.). "The appellate court has no duty to brief issues for an appellant." In re A.E. , 580 S.W.3d 211, 219 (Tex. App.—Tyler, 2019, pet. denied) (citing Huey v. Huey , 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.) ). Although "Appellate courts must construe briefing requirements reasonably and liberally, ... a party asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law support [her] contentions." Id. (citing San Saba Energy, L.P. v. Crawford , 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) ). As a result, "a point of error not adequately supported by either argument or authorities is waived." In re N.L.G. , No. 06-06-00066-CV, 2006 WL 3626956, at *2 (Tex. App.—Texarkana Dec. 14, 2006, pet. denied) (mem. op.) ; see In re J.E.C. , No. 06-05-00099-CV, 2005 WL 3500065, at *2 (Tex. App.—Texarkana Dec. 23, 2005, no pet.) (mem. op.). We find that Mother's point of error claiming that the four grounds for termination are not supported by legally and factually sufficient evidence because the evidence is not clear and convincing, without any explanation of how the evidence fails to meet this evidentiary standard and without any discussion of the evidence whatsoever, fails to set out a clear and concise argument for this contention. We, therefore, must conclude that this point of error has been waived. We overrule this point of error.
IV. The Evidence Is Legally and Factually Sufficient to Support the Trial Court's Best-Interest Finding
"There is a strong presumption that keeping a child with a parent is in the child's best interest." In re J.A.S., Jr. , No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, pet. denied) (mem. op.) (citing In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) ). "Termination ‘can never be justified without the most solid and substantial reasons.’ " In re N.L.D. , 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan , 543 S.W.2d 349, 352 (Tex. 1976) ).
In determining the best interests of the child, courts consider the following Holley factors:
(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, (6) the plans for the child by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent.
Id. at 818–19 (citing Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976) ); see In re E.N.C. , 384 S.W.3d 796, 807 (Tex. 2012) ; see also TEX. FAM. CODE ANN. § 263.307(b). The Department is not required to present proof of each Holley factor. In re M.C. , 482 S.W.3d 675, 688 (Tex. App.—Texarkana 2016, pet. denied) (citing In re C.H. , 89 S.W.3d at 27 ). "When considering the child's best interest, we may take into account that a parent is unable to provide adequate care for a child, lacks parenting skills, or exercises poor judgment." Id. (citing In re C.A.J. , 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) ). "Parental drug abuse, which reflects poor judgment, is also a factor that may be considered when determining the child's best interest." Id. (citing In re M.R. , 243 S.W.3d 807, 820 (Tex. App.—Fort Worth 2007, no pet.) ). The parent's "continuing criminal history, and past performance as a parent are [both] relevant in determining the child's best interest." Id. (citing In re C.H. , 89 S.W.3d at 28 ).
The evidence was clear that the children loved Mother and that she loved them. Mother had a good relationship with the children when she visited them in their foster home. The evidence further suggests that A.D.B. would be with Mother if she could. We find that the first Holley factor weighs against termination. See In re E.N.C. , 384 S.W.3d at 808.
The oldest child was seven years old at the time of the termination hearing, and the youngest child was two. Two of the children were in counseling, and a third needed counseling. Due to their ages alone, the emotional and physical needs of the children now and in the future are great. Because she was incarcerated on a felony offense at the time of trial, Mother had no income and no suitable home and would not likely be able to meet the children's needs. Mother testified that, if she did not receive in-patient drug rehabilitation after her release from jail, it would take her some time to find a place to live and a job in order to take care of the children. Although Mother was hopeful that she would be released from jail the month following the hearing, her case had yet to go to trial. "A parent who lacks stability, income, and a home is unable to provide for a child's emotional and physical needs." In re Z.M. , 456 S.W.3d 677, 689 (Tex. App.—Texarkana 2015, no pet.) (quoting In re J.T.G. , 14-10-00972-CV, 2012 WL 171012, at *17 (Tex. App.—Houston [14th Dist.] Jan. 19, 2012, pet. denied) (mem. op.) ). We find that the second Holley factor weighs in favor of termination.
As to the third and fourth Holley factors, "[e]vidence of past misconduct or neglect can be used to measure a parent's future conduct." Id. (quoting In re I.R.K.-N. , No. 10-13-00455-CV, 2014 WL 2069281, at *7 (Tex. App.—Waco May 15, 2014, pet. denied) (mem. op.)) (citing Williams v. Williams , 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied) ; Ray v. Burns , 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) ("Past is often prologue.")). The evidence reflects that Mother had been struggling with drug addiction for approximately nine years prior to trial. When the children were initially removed from her care in April 2020, Mother's hair-follicle test results revealed the presence of amphetamine and methamphetamine. Likewise, A.D.B.’s hair-follicle test results revealed the presence of methamphetamine. Although Mother was successful in completing her court-ordered services and gaining a monitored return of the children, that return only lasted approximately three months due to Mother's continued drug use. Mother failed to report for drug testing in June and July 2021 and was arrested in July 2021 for manufacture and delivery of a controlled substance. Mother also had a history of assaulting her brother and the children's paternal step-grandmother.
Mother's lengthy history of drug abuse and poor decisions reflect that Mother had been a danger to the children. Even after the children were removed a second time from her care, Mother continued to struggle with her addiction and continued to make poor decisions that could have endangered the children. We find that the third and fourth Holley factors weigh in favor of termination.
Although Mother completed counseling through ETCADA and completed other services as required to obtain a monitored return of the children, Mother was not able to break free of her addiction. Mother admitted to using methamphetamine during the pendency of the case and testified that she felt so ashamed after the children were removed the second time that she did not continue to try to break free of her addiction. Mother's drug use during the pendency of this case indicates that the existing parent-child relationship was not a proper one. We find that the fifth, eighth, and ninth Holley factors weigh in favor of termination.
As for the sixth and seventh Holley factors, the evidence showed that the children were living in loving and stable foster homes. A.D.B. appreciated the structure of the Hurley home and felt safe and happy there. She liked having her own room and enjoyed being free of the responsibility for her younger siblings. C.B., who was also living in the Hurley home with his sister, had just started daycare. According to Goerner, the children at the Hurley residence were in a safe, stable environment, and the Hurleys were taking care of their educational, medical, emotional, and financial needs. Although two of the children were in a different foster home at the time of trial, Goerner testified that they were happy and had no complaints about being there. The Offutts were taking care of the children's educational, medical, emotional, and financial needs. Both children were safe and happy, and G.B. was doing well in counseling for her anger issues.
Because the Offutts and the Hurleys lived in close proximity to one another, the four children saw each other almost every weekend, and their maternal grandparents often picked the children up for visits over the weekend. Both foster families planned to continue the arrangement of making sure the children saw each other on weekends, as they had been doing. The Hurleys wanted all four of the children to live with them because they were committed to their future. It was their intention to provide a safe and stable environment for the children throughout their childhood years. If they were able to adopt the children, the Hurleys intended to maintain their relationship with the maternal grandparents and with Mother, subject to her sobriety.
Mother testified that, if the children could not be with her, it was her preference that the children live with the Hurleys. Mother believed that she could step up again and take care of her children and testified that it was in her children's best interests to allow her to retain her parental rights. Mother had no immediate plans for the children because she was in jail and could not predict with any certainty when she would be released.
Considering the Holley factors and in light of all of the evidence, we conclude that the trial court could have reasonably formed a firm belief or conviction that termination of Mother's parental rights was in the children's best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2). We overrule this issue.
We affirm the trial court's judgment.