Summary
holding that factfinder could reasonably find use of hard drugs was of more serious nature and directly implicated parental fitness
Summary of this case from In re E.D.Opinion
NO. 01-22-00724-CV
03-28-2023
IN RE A.J.D.-J., a Child
Brandi Addison, The Woodlands, Sandra D. Hachem, Houston, Robert J. Hazeltine-Shedd, for Appellee. Laura Neilsberg, for Appellant.
Brandi Addison, The Woodlands, Sandra D. Hachem, Houston, Robert J. Hazeltine-Shedd, for Appellee.
Laura Neilsberg, for Appellant.
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
Gordon Goodman, Justice
The trial court terminated the parental rights of both the mother and father with respect to their one-year-old daughter. The mother has appealed, but the father has not. On appeal, the mother argues that the evidence is legally and factually insufficient to support the trial court's finding that termination of her parental rights is in her daughter's best interest and that the trial court should have instead made her a possessory conservator with a right to supervised visitation. We affirm.
BACKGROUND
The parties tried the case to the bench in August 2022. The Texas Department of Family and Protective Services presented four witnesses at trial: the children's protective services caseworker, the child advocate, the foster mother, and a representative of a drug-testing company. No other party presented any witnesses at trial, which was quite short in duration. The trial transcript is less than 50 pages.
The Department was the sole party that introduced trial exhibits. It introduced 19 exhibits spanning almost 1,700 pages. The vast majority of these are hospital records surrounding the child's birth and they are immaterial to this appeal for the most part. No party objected to the admission of these 19 exhibits on any ground.
The caseworker was the primary witness. She testified that the child—a girl—was one year old at the time of trial and currently resides with a foster mother. The child has been in the foster mother's care since being released from the hospital, where the child remained for the first three weeks due to her premature birth.
The Department became involved in August 2021, when the child was born, because the mother tested positive for marijuana while she was in the hospital. The trial testimony includes conflicting statements as to whether the child also tested positive for marijuana when she was born. But the hospital records show that the child's meconium—earliest stool—did test positive for marijuana.
After the child was born, the Department created a family service plan for the mother. Among other things, the Department asked her to undergo substance-abuse counseling, take a substance-abuse assessment, submit to random drug tests, undergo a psychiatric and psychological evaluation, complete a program on domestic violence, provide proof of income and housing, remain in contact with the Department, attend all visits the Department scheduled between the mother and the child, and appear at all court hearings. The trial court then ordered the mother to comply with the family service plan in September 2021.
The family service plan was admitted into evidence. It indicates that the mother was not employed and did not have stable housing. It also indicates that she stated she had used marijuana and opiates but was not longer using the latter. Finally, the plan indicates that the mother had previously been diagnosed with a mood disorder and that she was subjected to domestic violence by the child's father.
The mother did not fulfill most of the requirements of her service plan. She underwent substance-abuse counseling but never took a substance-abuse assessment. She did not submit to the psychiatric evaluation. She did not complete a program on domestic violence. She did not provide proof of income or housing. Nor did she appear at all court hearings. In fact, the mother did not attend trial. Her lawyer said that he had been told that the mother was unable to attend trial due to a car accident, but her lawyer also stated that he had no proof to present in support of his client's excuse for her absence.
In addition, the mother did not attend almost all of the random drug tests that were scheduled, even though her family service plan provides that her failure to attend a random drug test "will automatically be considered positive." The lone drug test the mother took after the child's birth was positive. A corresponding drug test record from the Texas Alcohol & Drug Testing Service shows that a hair follicle test administered in September 2021 yielded a positive result for marijuana, methamphetamine, and hydrocodone.
When the child was born, the mother was also involved with the Department in another case concerning her other two daughters. The mother did not perform the services imposed in that case either. The record is devoid of details regarding this other case, except for inclusion of the final decree, entered in March 2022, in which these two daughters’ caregiver was appointed as sole managing conservator and the mother was made a possessory conservator with a limited right of supervised visitation as to those two daughters.
During the pendency of the instant suit, the mother had the right to see the child under supervision twice a month. But she had visited the child only five times within a year or so. Her visits were also sporadic, occurring twice in 2021 and then in January, May, and August of 2022. The visits were appropriate, but the mother generally did not stay the entire time when two hours were allotted. Instead, she stayed a single hour. At the last visit shortly before trial, the child didn't initially recognize the mother and cried for a while until "she kind of got used to it with a lot of toys and stuff gathered around her." The child played a while and then napped.
As to the mother's failure to attend trial, the caseworker testified that she had not received any information about the alleged car accident that ostensibly prevented the mother from being present. The caseworker had last seen the mother on the Saturday preceding trial, which was just three days beforehand.
The caseworker testified that the child is "doing really well" with her foster mother. They live alone and "have a strong bond." The child is beginning to call the foster mother "mom." The caseworker agreed that the foster mother provides a safe and stable home, and the caseworker opined that it was in the child's best interest to remain in this placement. The foster mother plans on adopting the child if the mother's rights are terminated.
The foster mother ensures that the child visits with her siblings or half-siblings—the mother's other two daughters—on a regular basis.
Though born premature, the child does not have special needs or medical issues. "She's a normal child, meeting normal milestones."
Based on the preceding circumstances, the caseworker opined that termination of the mother's parental rights is in the child's best interest. She explained it is best for the child to have the stability that her foster mother provides. The caseworker also expressed concern about the mother having used marijuana while pregnant with the child and the inconsistency of the mother's visitation.
The child advocate briefly took the stand to agree that it is in the child's best interest to remain with her foster mother and for her biological mother's parental rights to be terminated. The advocate testified that the foster mother is the only parent the child has ever known, and that the child is doing well with her. In contrast, the mother has not completed her family service plan and has not been consistent in visiting the child during the pendency of the suit.
The foster mother appeared and testified remotely via ZOOM. She testified that the child had been in her care for almost a year, since September 2021. The foster mother represented that she is the only parent the child has had, they have developed a bond, and the child has started calling her "mom." The foster mother stated that she would ensure the child could maintain a relationship with her two older sisters. She will treat the child as her own.
A representative of the drug-testing company National Screening Center briefly took the stand. He testified that the company's records show that the mother failed to appear for a scheduled drug test. The corresponding company records as to the missed test were admitted into evidence. This drug test in particular had been specifically ordered to take place by the trial court in an order that is independent of the mother's family service plan.
After hearing the testimony of the witnesses and without recessing to review the exhibits, the trial court terminated the mother's parental rights, finding that the mother had failed to comply with her court-ordered family service plan in violation of section 161.001(b)(1)(O) of the Texas Family Code and that termination is in the child's best interest as required by section 161.001(b)(2).
DISCUSSION
The mother contends that the evidence is legally and factually insufficient to support the trial court's best-interest finding as to the termination of her rights. In addition, the mother contends that the trial court should have appointed her as a possessory conservator with the right to have supervised visits with her child.
The mother's appellate counsel was appointed late in the appeal and filed a well-done and well-argued brief on short notice. We would like to express our appreciation to the mother's appellate counsel for assisting us to decide this appeal in a timely fashion. See Tex. R. Jud. Admin. 6.2(a) (directing courts of appeals to decide parental-termination appeals within 180 days of filing of notice of appeal so far as reasonably possible).
Legal Standard for Terminating Parental Rights
A parent's rights to the care, custody, and management of his or her child are constitutional in scope. Santosky v. Kramer , 455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ; In re M.S. , 115 S.W.3d 534, 547 (Tex. 2003). But parental rights are not absolute; the Department may seek termination of the rights of those who are not fit to accept the responsibilities of parenthood. In re A.V. , 113 S.W.3d 355, 361 (Tex. 2003). The primary focus in a termination suit is protecting the child's best interest. Id.
To terminate parental rights under the Family Code, the Department must establish that a parent committed one or more statutorily enumerated predicate acts or omissions and that termination is in the child's best interest. TEX. FAM. CODE § 161.001(b)(1)–(2). The Department need only establish one of these statutorily enumerated predicate acts or omissions, along with the best-interest finding. See id. ; In re A.V. , 113 S.W.3d at 362. But the Department must make these showings by clear and convincing evidence. FAM. § 161.001(b). Clear and convincing evidence is "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. § 101.007.
The best-interest inquiry is separate and distinct from the one concerning the predicate grounds for termination of parental rights. In re S.R.L. , 243 S.W.3d 232, 235 (Tex. App.—Houston [14th Dist.] 2007, no pet.). But evidence used to prove predicate grounds for termination may be probative of a child's best interest. In re A.A.A. , 265 S.W.3d 507, 516 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
Multiple nonexclusive factors bear on a child's best interest. Holley v. Adams , 544 S.W.2d 367, 371–72 (Tex. 1976). These nonexclusive factors include:
• the child's desires;
• the child's emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of those seeking custody;
• the programs available to assist them to promote the child's best interest;
• their plans for the child or the plans of the agency seeking custody;
• the stability of the home or proposed placement;
• the acts or omissions of the parent that may indicate the existing parent–child relationship is not proper; and
• any excuse for the parent's acts or omissions.
Id. ; Yonko v. Dep't of Family & Protective Servs. , 196 S.W.3d 236, 243 (Tex. App.—Houston [1st Dist.] 2006, no pet.). These nonexclusive factors are not exhaustive, no one factor is controlling, and a single factor may be adequate to support a finding that termination of the parent–child relationship is in a child's best interest on a particular record. In re C.H. , 89 S.W.3d 17, 27 (Tex. 2002) ; In re J.M.T. , 519 S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
In evaluating a child's best interest, we also may consider several factors set forth in section 263.307 of the Family Code. In re D.L.W.W. , 617 S.W.3d 64, 81 (Tex. App.—Houston [1st Dist.] 2020, no pet.) ; see FAM. § 263.307(a) – (b) (stating that prompt placement of child in safe environment is presumed to be in child's best interest and enumerating 13 factors courts should consider in deciding whether child's parents are willing and able to provide child with safe environment).
Legal and Factual Sufficiency Review in Termination Cases
In this appeal, the principal issues are legal and factual sufficiency of the evidence. Due to the elevated burden of proof in a termination suit—clear and convincing evidence—we do not apply the traditional formulations of legal and factual sufficiency on appeal. In re A.C. , 560 S.W.3d 624, 630 (Tex. 2018) ; see also FAM. § 101.007 (clear and convincing evidence is "proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations").
In a legal-sufficiency review in a termination case, we cannot ignore undisputed evidence contrary to a finding, but we must otherwise assume the factfinder resolved disputed facts in the finding's favor. In re A.C. , 560 S.W.3d at 630–31 ; see In re K.M.L. , 443 S.W.3d 101, 112–13 (Tex. 2014) (reviewing court credits evidence supporting finding if reasonable factfinder could and disregards contrary evidence unless reasonable factfinder could not). The evidence is legally insufficient if, viewing all the evidence in the light most favorable to a finding and considering undisputed contrary evidence, a reasonable factfinder could not form a firm belief or conviction that the finding is true. In re A.C. , 560 S.W.3d at 631.
In a factual-sufficiency review in a termination case, we must weigh disputed evidence contrary to a finding against all the evidence in the finding's favor. Id. We consider whether the disputed evidence is such that a reasonable factfinder could not resolve the conflicting evidence in the finding's favor. Id. The evidence is factually insufficient if, in view of the entire record, the disputed evidence a reasonable factfinder could not credit in the finding's favor is so significant that the factfinder could not have formed a firm belief or conviction that the finding is true. Id.
In reviewing for evidentiary sufficiency, however, we must not usurp the factfinder's role. In re A.B. , 437 S.W.3d 498, 503 (Tex. 2014). Deciding whether, and if so to what degree, to credit the evidence is the factfinder's role, not ours. In re J.O.A. , 283 S.W.3d 336, 346 (Tex. 2009). The factfinder is the sole arbiter of witness credibility. Id. ; In re J.S. , 584 S.W.3d 622, 634 (Tex. App.—Houston [1st Dist.] 2019, no pet.). In a bench trial, the trial judge is the factfinder who weighs the evidence, resolves evidentiary conflicts, and evaluates witnesses’ credibility. In re R.J. , 579 S.W.3d 97, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).
Analysis
Parental indifference to one's offspring supports a finding that termination of parental rights is in a child's best interest under every one of the Holley factors. Those who are unwilling to devote the time, effort, and resources required to raise and care for a child cannot meet that child's emotional needs now or in the future. Indeed, an uninterested parent poses an emotional and physical danger to the child. Parental indifference evinces either a lack of parental ability or, worse, an unwillingness to apply one's abilities for the benefit of the child's welfare. Whatever programs may be available to assist in promoting the child's best interest, a parent who lacks the motivation to fulfill his or her parental duties is unlikely to utilize or benefit from these programs. Nor is an indifferent parent likely to have meaningful plans for the child or give the attention to childrearing necessary to ensure the child has a safe and stable home. Parental indifference strongly indicates the existing parent–child relationship is not a proper one and that the sole excuses for the parent's shortcomings are unfavorable ones, namely, apathy or heedlessness. Finally, even if the child desires to have a relationship with his or her parent, parental indifference suggests this desire should be discounted due to lack of parental reciprocation.
In sum, indifference is inimical to the parent–child relationship. Hence, significant evidence of parental indifference weighs heavily in favor of a factfinder's finding that termination is in a child's best interest. See generally In re N.J.H. , 575 S.W.3d 822, 833–34 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (indicating that evidence of parental indifference or malice, as opposed to failures resulting from misfortune or lack of intelligence or training, supports finding that termination of parental rights is in child's best interest); see In re C.H. , 89 S.W.3d at 28 (noting that father's exhibition of pattern of conduct inimical to very idea of childrearing, including his failure to provide emotional support or financial assistance to child, lack of concrete plan for caring for child, and visitation with child on just two occasions and lack of effort to foster relationship with child, supported finding that termination of father's parental rights was in child's best interest); In re A.B. , 269 S.W.3d 120, 129 (Tex. App.—El Paso 2008, no pet.) (holding that record contained evidence that mother was uninterested in child, including mother's failure to have contact with or to seek to have contact with child after Department became child's conservator and her failure to financially support child, which supported trial court's finding that termination of parental rights was in child's best interest); In re S.B. , 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (holding evidence that incarcerated father was indifferent to his children's emotional and physical safety for much of their lives, including by failing to write letters to them during pendency of termination proceedings and failing to contact CPS about them, supported trial court's finding that termination was in children's best interest). Put simply, when the evidence shows that a parent has declined to participate in childrearing due to his or her lack of interest, the parent–child bond is fundamentally broken, and termination of the parent's rights is in the best interest of the child.
Here, the record contains significant evidence of parental indifference, or so the trial court sitting as factfinder could have reasonably found from the evidence. The child came into the Department's care because both the mother and child tested positive for marijuana when the child was born. During the next year or so, the mother visited the child five times out of at least two dozen possible visits, which amounts to attending roughly one in five visits. The evidence also shows that these visits were sporadic or at irregular intervals. Though the caseworker described the mother's behavior during these visits as appropriate, the caseworker also noted that the mother chose not to stay the full time when two hours were allotted. Unsurprisingly, the infrequency of visitation has adversely impacted the parent–child bond; the child calls her foster mother, rather than the appellant, "mom." During the first year of the child's life, the foster mother has been her only parent.
It is unusual for a parent to see his or her young child so infrequently, and the mother has not offered any excuse for having seen her child a mere handful of times during the child's life. Being a parent in more than name requires a commitment to regularly be present in a child's life. Hence, unless a parent has a valid excuse for his or her absence from a child's life, we have long considered evidence of little or no contact with the child to be proof that weighs heavily in favor of a trial court's best-interest finding. E.g., In re R.J. , 579 S.W.3d at 115 (crediting evidence of parents’ minimal and sporadic visitation—10 out of 55 visits—with three-year-old child as proof supporting best-interest finding under multiple Holley factors); Walker v. Tex. Dep't of Family & Protective Servs. , 312 S.W.3d 608, 619–20 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (considering that father had not seen one-year-old child since birth in evaluating child's best interest under multiple Holley factors); cf. In re J.G.S. , 574 S.W.3d 101, 125 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (declining to consider father's absence as evidence that parent–child relationship was improper because father's absence was due to military service).
Parental absence or lack of involvement is especially telling with respect to the best interest of very young children, like babies and toddlers, due to their inherent vulnerability and particular need for parental attention and nurturing. See In re B.D.A. , 546 S.W.3d 346, 361 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (observing that young age of children at issue in case—four-, five-, and seven-years-old respectively—made them mentally and physically vulnerable if left in custody of parent who is unable or unwilling to protect them or attend to their needs). As a one-year-old, the instant child is wholly dependent on others for her wellbeing. See In re J.M.T. , 519 S.W.3d at 270–71 (noting vulnerability of child who was 14 months old at trial). Since birth, she has been cared for by someone other than her mother.
In addition to the preceding evidence of parental indifference, the record shows that the mother made no effort to complete most aspects of her court-ordered family service plan. This is significant because, as the mother's plan indicates, the purpose of a family service plan is to remedy parental shortcomings so any child removed from the parent's care may be returned. Thus, when a parent does not try to abide by the plan, the factfinder may reasonably infer the parent is indifferent to the goal of family reunification. See id. at 269–70 (agreeing that father's failure to complete tasks and services required by family service plan supported best-interest finding and noting that factfinder could infer that father lacked motivation from his failure to take initiative to complete court-ordered services necessary to regain possession of child); Wyatt v. Dep't of Family & Protective Servs. , 193 S.W.3d 61, 70 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (taking into account mother's disregard for measures she needed to take to regain custody of children in affirming trial court's best-interest finding); see also In re A.A.A. , 265 S.W.3d at 518 (noting undisputed evidence that mother did not complete services in her family service plan in affirming factfinder's finding that termination was in child's best interest).
In particular, we note that the mother failed to complete more than one task or service relating to her use of illegal drugs, including submitting to drug testing. The record shows that the lone drug test that the mother took after the child was born yielded positive results for marijuana, methamphetamine, and hydrocodone. She failed to appear for any further drug tests, which is a circumstance from which the factfinder could have reasonably found that she continued to use illegal drugs and refused to submit to further testing to avoid confirmation of this unfavorable fact. E.g., In re J.M.T. , 519 S.W.3d at 269 (holding that factfinder could infer illegal drug use from father's refusal to provide hair and fingernail samples for drug testing); see also In re Lipsky , 460 S.W.3d 579, 589 (Tex. 2015) (stating heightened standard of clear and convincing evidence recognizes relevance of circumstantial evidence).
In this case, the factfinder also could have reasonably found that the mother's continued use of illegal drugs was particularly probative as to her parental indifference for at least two reasons. First, the child came into the Department's care because the mother had used marijuana while pregnant. By continuing to use illegal drugs, the mother repeated the very behavior that had resulted in the child's removal from her care and thereby signaled that she could not or would not commit herself to sobriety even though her drug use had separated her from the child and her sobriety was necessary to achieve family reunification. See In re J.A. , No. 01-21-00606-CV, 2022 WL 802982, at *8 (Tex. App.—Houston [1st Dist.] Mar. 17, 2022, no pet.) (mem. op.) (noting factfinder could have found mother's failure to complete substance-abuse assessment especially significant as to child's best interest because positive drug test had precipitated child's removal from home). Second, the mother's continued illegal drug use during the pendency of this case took place while she knew her parental rights were at stake. Continuing to use drugs under this circumstance indicates an inability or unwillingness to prioritize the burdens and responsibilities of parenthood ahead of the desire for intoxication, an impaired condition that is not compatible with the care of a very young child like this one. E.g., In re N.J.H. , 575 S.W.3d at 834–35 (holding that father's continued drug use during pendency of case reflected poor judgment and inability to provide adequate care for child under two and therefore supported trial court's best-interest finding); In re J.M.T. , 519 S.W.3d at 269 (holding that evidence of father's continued drug use, as well as his failure to submit to drug tests, supported best-interest finding).
We acknowledge that drug use does not invariably support a finding that termination of parental rights is in the best interest of a child. For example, in evaluating the sufficiency of the evidence, we have discounted evidence of a parent's illegal drug use when the use occurred at a remote point in the past or was not otherwise especially probative of parental fitness. E.g., In re D.L.W.W. , 617 S.W.3d at 87–89, 93 & n.50 (holding evidence of illegal drug use was not factually sufficient to support best-interest finding, as parents had not used drugs for significant amount of time when their parental rights were terminated and were participating in substance-abuse programs at time as well); Ruiz v. Tex. Dep't of Family & Protective Servs. , 212 S.W.3d 804, 818 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding limited evidence of mother's illegal drug use—marijuana on single occasion when she may have been pregnant with one child—was legally insufficient to support child-endangerment finding as to another child). Here, however, the factfinder could have reasonably found that the mother's drug use was ongoing, of a more serious nature due to a positive test result showing the use of multiple drugs, including hard ones like methamphetamine, and thus directly implicated the mother's parental fitness. Cf. In re M.A.J. , 612 S.W.3d 398, 415–16 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (distinguishing between hard drugs, like methamphetamine, and less destructive drugs, like marijuana, and noting that mother had not tested positive for use of hard drugs in year before trial, but nonetheless holding that evidence of mother's drug use still lent slight support to trial court's best-interest finding).
Finally, the mother's failure to attend trial and other hearings is one more circumstance from which the factfinder could have inferred that she was indifferent to her parental rights and responsibilities. In general, when a parent fails to attend trial in a parental-termination case without a valid excuse for his or her failure to do so, the factfinder may reasonably infer that the parent is indifferent to the outcome. E.g., In re A.J.A.D. , No. 01-22-00521-CV, 2022 WL 17813763, at *12 (Tex. App.—Houston [1st Dist.] Dec. 20, 2022, no pet.) (mem. op.) ; In re K.N.D. , No. 01-12-00584-CV, 2014 WL 3970642, at *9 (Tex. App.—Houston [1st Dist.] Aug. 14, 2014, no pet.) (mem. op.). This inference is permissible because one who desires to retain her parental rights would not knowingly miss a hearing in which those rights will be adjudicated once and for all, unless she has a good excuse to be absent.
In this particular case, the mother's court-ordered family service plan required her to make her best effort to attend all court hearings in the case, which includes the final hearing or trial. If she was unable to do so, the plan required her to promptly notify the Department of her inability to attend and provide written documentation corroborating her explanation for nonattendance, such as photographs in the case of automotive problems or a note from a doctor in the event of an illness.
The mother did not attend trial. Her trial lawyer represented that he had been informed that the mother would not be attending trial due to a car accident. But her trial lawyer conceded that he did not have any proof regarding her excuse for nonattendance: "Judge, I received information that my client was in a car accident, but I don't have any proof to present to the Court; so, she will not be here today."
Contrary to her court-ordered family service plan's requirements, the mother did not submit any written documentation corroborating the car accident. When the caseworker took the stand, she testified that she had not received any information regarding the alleged car accident and had just seen the mother the preceding Saturday. The trial took place three days later on Tuesday. The record lacks any further details concerning the accident, such as when the accident happened, the severity of the accident, or any injuries resulting from the accident. Nor does the record contain any evidence establishing that the mother lacked access to an alternative means of transportation to the courthouse or was unable to appear at trial remotely by ZOOM, as one of the other witnesses—the foster mother—did.
Based on this record, the trial court sitting as factfinder could have reasonably found that the mother had not established a valid excuse for her nonattendance. A lawyer's unsworn statements to the court in a civil case may constitute competent evidence under certain, limited circumstances, such as when a lawyer makes factual representations about a matter within his personal knowledge, provided that the other side has reason to know it should object to these representations and fails to do so. Marquez v. Moncada , 388 S.W.3d 736, 740 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Here, however, the mother's trial lawyer did not purport to have personal knowledge. Instead, he merely relayed what he had been told by someone else—presumably, the mother but the record does not actually specify who provided this information—outside of court, and the lawyer explicitly qualified his statement by stating he had no proof, which indicates that he did not intend to offer his statement as evidence. Given the record as a whole, which includes prior failures to attend hearings on the mother's part as well as her noncompliance with the court-ordered requirement that excuses for nonattendance be corroborated by written documentation, the trial court was not bound to find the mother's excuse valid.
In sum, the record contains significant evidence of parental indifference. Indeed, the record is virtually one-sided on the issue of the mother's indifference. And because indifference implicates all of the Holley factors, we hold that the record contains legally and factually sufficient evidence to support the trial court's finding that termination of the mother's parental rights is in the best interest of the child.
On appeal, the mother disputes the legal and factual sufficiency of the evidence on several grounds. We address each of her specific arguments in turn.
In her first argument, the mother concedes the Department introduced some evidence relevant to several Holley factors, but she maintains that the evidence as a whole in this case does "not rise to the level of clear and convincing evidence." She further maintains that specific aspects of the Department's evidence are conclusory, by which we understand her to mean the evidence is so scant as to constitute no evidence or legally insufficient evidence under the heightened burden of proof. See Sw. Bell Tel. Co. v. Garza , 164 S.W.3d 607, 621–22 (Tex. 2004) (distinguishing between preponderance-of-evidence standard, under which evidence that is no more than scintilla is conclusory, and clear-and-convincing-evidence standard, under which evidence that is more than scintilla nonetheless constitutes no evidence if it is not capable of producing firm belief or conviction that allegation in question is true).
We acknowledge that the record in this appeal is a relatively brief one. For example, as we have already noted, the transcript of the trial is less than 50 pages.
But whether evidence satisfies the clear-and-convincing-evidence standard of proof generally turns on the quality of the evidence more so than its quantity. See id. at 625 (observing that when showing must be made by clear and convincing evidence "a higher quality of evidence is necessary to tip the scales" than in ordinary civil cases governed by preponderance-of-evidence standard). Our court has reversed based on evidentiary insufficiency in termination cases with limited records comparable to the one before us. E.g., In re D.L.W.W. , 617 S.W.3d at 92 n.49 (noting that trial transcript was less than 100 pages and there were no trial exhibits). And we have affirmed in the face of evidentiary-sufficiency challenges in termination cases with records more modest than this one. E.g., In re V.V. , 349 S.W.3d 548, 552 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (en banc) (noting that trial transcript was 5 pages and there were 38 pages of trial exhibits). Broadly speaking, these disparate results stem from differences in the quality of the evidence in individual cases. Compare In re D.L.W.W. , 617 S.W.3d at 82–93 (holding evidence was factually insufficient to support trial court's best-interest finding in case in which substantial evidence undermined that finding and evidence supporting finding was often limited or conclusory in nature), with In re V.V. , 349 S.W.3d at 551–58 (holding evidence supported trial court's child-endangerment and best-interest findings in case in which minimal but one-sided record showed father had played no role in child's life, in part because he was habitual criminal and often incarcerated). Such disparate results are to be expected from our decisions, given that our elevated standards of review for legal and factual sufficiency in termination cases respectively require us to take into account undisputed evidence contrary to a finding and disputed evidence contrary to a finding. In re A.C. , 560 S.W.3d at 630–31.
Moreover, while the Department bears the burden to prove termination is in a child's best interest, a relatively brief record is not necessarily a telltale sign of evidentiary insufficiency in cases involving parental indifference, as there is little to record when a parent is largely or entirely uninvolved in a child's life. See In re B.D.A. , 546 S.W.3d at 363 (acknowledging that record was sparse but noting it was sparse with respect to father because his total lack of contact with children and lack of involvement in their lives left little to record). Likewise, when a parent, who is a key fact witness in a termination case, refuses to attend trial, the record will necessarily be more limited than if he or she had testified. We emphasize that this circumstance does not relieve the Department of the burden of proof or lower the burden of proof, but it may explain in a given case why the record is limited and why such a limited record does not ineluctably signal evidentiary insufficiency.
Though limited in quantity, the quality of the evidence in this particular case is such that a factfinder could have reasonably developed a firm belief or conviction that termination of the mother's parental rights is in the child's best interest based on the mother's parental indifference. As we have discussed, the record is virtually one-sided on this issue, showing that the mother has played almost no role in her one-year-old child's life since birth and has repeatedly behaved in ways indicative of her lack of interest in being a parent. As we have previously held, evidence of this nature is legally and factually sufficient to support a trial court's best-interest finding. See In re V.V. , 349 S.W.3d at 551–58 (affirming as father was parent in biological sense only to year-and-a-half-old child, child was never in care of father, father had not engaged in any parenting whatsoever since child's birth, and father and child lacked bond); In re S.M.M. , No. 01-22-00482-CV, 2022 WL 17981669, at *1, *10–12 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, pet. denied) (mem. op.) (affirming trial court's constructive-abandonment and best-interest findings in case in which record, though sparse in some ways, showed father's complete lack of parenting with respect to child who was about one-and-a-half years old at trial).
This is not to say that we entirely disagree with the mother's claim that some aspects of the evidence introduced by the Department at trial are so bereft of detail that they cannot support the trial court's best-interest finding on appeal. For example, though the mother's family service plan required her to obtain and supply proof of stable housing and employment, and the caseworker testified that the mother did not satisfy these parts of her family service plan, there is no factual development on these topics. The record does not contain information about her housing or employment history. Nor does the record contain details about the mother's present circumstances in terms of where she lives and works, how long she has done so, or her future prospects. Without this kind of factual development, a factfinder could not reasonably find that the mother's housing and employment circumstances—in and of themselves—show that termination is in the child's best interest. See In re D.L.W.W. , 617 S.W.3d at 86 (indicating caseworker's statement that child was thriving in foster placement was either legally or factually insufficient to support trial court's best-interest finding due to lack of factual elaboration).
But we are unpersuaded that the scant nature of the evidence about housing and employment adversely affects the trial court's best-interest finding in this case. Here, the significance of the mother's failure to comply with her court-ordered family service plan's requirement to submit proof of housing and employment is not that it shows her home is unstable or unsafe or that she lacks the means to provide for her child's needs. Rather, this evidence is yet another instance of the mother's refusal to perform the tasks necessary to be reunited with her child, from which the trial court could have reasonably inferred that she lacks an interest in being reunited. It is the pattern of parental indifference shown by the evidence that is material.
In her evidentiary arguments, the mother focuses on the various Holley factors individually, taking a divide-and-conquer approach to the evidence and dwelling on the limited amount of evidence concerning various subjects relevant to these factors, like the aforementioned lack of factual development about her housing and employment. This approach is a natural one when confronted with multifactorial standards, and our own court's opinions sometimes use this structure in assessing the sufficiency of the evidence. E.g., In re B.M.R. , 84 S.W.3d 814, 819–21 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (evaluating evidence relevant to each and every Holley factor one by one). However, we must be mindful that, in the end, we are required to evaluate the evidence holistically and consider its cumulative force, rather than weighing each individual piece of evidence in isolation from the remainder. See In re R.J. , 579 S.W.3d at 119 (stating in context of legal and factual sufficiency challenges to trial court's best-interest finding that appellate court could not evaluate evidence in isolation and must instead evaluate it in context of entire record); see also In re Z.K.S. , No. 14-22-00258-CV, 2022 WL 4243793, at *4–5 (Tex. App.—Houston [14th Dist.] Sept. 15, 2022, no pet.) (mem. op.) (rejecting mother's divide-and-conquer approach to evidence in record and holding evidence clearly and convincingly showed child endangerment when viewed holistically). The evidence as a whole may show a pattern of behavior that supports termination, even though some of the individual pieces of evidence might not suffice on their own. See In re J.W. , 645 S.W.3d 726, 744 (Tex. 2022) (agreeing that father's acts before child was born could not be used to show he failed to comply with family service plan created afterward but that factfinder nonetheless could rely on this evidence as part of pattern of behavior that had continued throughout termination proceedings); In re C.H. , 89 S.W.3d at 27–29 (faulting court of appeals’ factual-sufficiency review of factfinder's best-interest finding for failing to take into account evidence that supported best-interest finding, including father's deficient performance as parent in past and pattern of conduct he exhibited that was inimical to childrearing).
In this case, the record shows a pattern of indifference on the mother's part—indifference to her child's welfare, her responsibilities as a parent, and reunification with her child. Or so a reasonable factfinder could have found by clear and convincing evidence based on the record. This evidence includes the following:
• the mother used marijuana while pregnant with the child, who then tested positive for the drug when born and was removed from her care;
• the mother failed to complete almost all requirements imposed on her by the court-ordered family service plan as conditions for reunification;
• in particular, the mother attended five of two dozen or so scheduled visits with her child, did so irregularly, and cut short some visits she attended;
• the mother failed a second drug test the month after the child's birth, testing positive for marijuana, methamphetamine, and hydrocodone ;
• the mother thereafter failed to show for all later drug tests, which the factfinder could reasonably treat as positive drug test results; and
• the mother did not attend all hearings, including trial, without a valid excuse for her absence, even though her parental rights were at stake.
In sum, the mother has been virtually absent from her child's life since birth due to her own poor judgment in using an illegal drug while pregnant with the child, and she has not shown any inclination to do the things necessary to regain custody. Indeed, the evidence indicates the mother has prioritized drugs over parenting. As a result, the only parent the child has known is the foster mother, whom the child is so bonded with that the child now calls her "mom." As "mom," the foster mother provides the child with a stable home, where the child is meeting all milestones. The foster mother intends to adopt the child if the mother's parental rights are severed, and she thus has committed to do what the mother has not—be a parent to this child.
This brings us to the mother's second argument about the evidence. Relying on the March 2022 final decree entered in the suit relating to the mother's other two daughters, the mother argues that this decree shows that a disposition other than termination is appropriate in this case as well. The decree in question was rendered five months before this case was tried, and that decree did not terminate the mother's parental rights. Instead, the decree made the mother a possessory conservator with a limited right of supervised visitation as to her other daughters. The mother reasons that she should at the very least be appointed a possessory conservator with respect to the child at issue in this case, given that so little time has elapsed since the decree was rendered that little could have materially changed since then. She further argues that because she still retains visitation rights with her other two daughters, and the child in this suit regularly visits her siblings, it may at some point in the future confuse or upset the child that she does not have the same visitation rights.
We reject this argument because to do otherwise we would have to speculate about matters outside the record, and we could not affirm a finding that rested on such speculation. See In re E.N.C. , 384 S.W.3d 796, 804 (Tex. 2012) (advising that meager circumstantial evidence that is consistent with differing inferences and evidence that consists of no more than inferences piled atop one another cannot support finding). Our review is expressly confined to the evidence admitted at trial. See In re D.L.W.W. , 617 S.W.3d at 78 n.33 (noting that appellate court can only consider evidence admitted at trial, and not documents contained in clerk's record or reporter's records of other hearings, when assessing sufficiency of evidence).
Regarding the suit in which the March 2022 decree was rendered, we know little beyond what the decree tells us, which is not much. As usually is the case with termination decrees, this one is formulaic. The record does not disclose why the trial court made the mother a possessory conservator in that case. The mother simply assumes that the same facts and evidence admitted in this case were also before the trial court in the prior case. But our evidentiary-sufficiency review cannot rest on unsupported assumptions about matters outside of the appellate record. We do not know what evidence the trial court, which sat as factfinder, heard in the other case. So, we have no way of comparing the evidence in that case to the evidence before us. And even if we knew such details, we do not know what, if any, role the mother has played in the lives of the two daughters after she was made their possessory conservator. Five months elapsed between the entry of the March 2022 decree and the trial in this case. The record does not disclose what has happened since then.
In consequence, the mother's arguments based on the March 2022 decree are ones made on the basis of the absence of evidence about the separate proceeding in which the decree was rendered. For example, she argues that the record does not document how her behavior changed in the five months between the rendition of the decree and the trial in this case and therefore does not show what she has done to make her so unfit that she should not have any relationship with her youngest child. Similarly, she argues that the record does not show a basis for the two trial courts to have rendered different decrees with respect to the mother's three children.
But arguments of this kind, based on the absence of evidence about another case, are fundamentally at odds with the Department's burden of proof below and our standards of review on appeal. At trial, the Department had to prove by clear and convincing evidence that termination is in this child's best interest, not that the mother's rights should be terminated here even though they were not with respect to other children in another case. And while we must consider undisputed evidence contrary to the trial court's finding when evaluating legal sufficiency and disputed evidence contrary to the trial court's finding when evaluating factual sufficiency, we generally cannot reverse a finding due to evidentiary insufficiency based on absent evidence that a party could have introduced at trial but did not. E.g., In re J.A. , 2022 WL 802982, at *5 (holding that review for legal and factual sufficiency is confined to evidence admitted at trial and that court of appeals therefore could not credit mother's appellate argument premised on her mental illness because there was no evidence of mental illness at trial); see also Petrol. Workers Union of the Repub. of Mex. v. Gomez , 503 S.W.3d 9, 26 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (holding that items not admitted into evidence for factfinder's consideration during trial are not considered by appellate court when evaluating sufficiency of evidence). The one notable exception, if it should be so characterized, is when the evidence admitted at trial on a subject is so scant as to be no evidence in the absence of additional factual development, like the evidence about the mother's housing and employment that we previously discussed. But nothing about the March 2022 decree or the limited evidence in the record about the suit in which it was rendered makes the evidence of the mother's parental indifference in this case scant in nature.
To the extent that the trial court could have made any findings based on the suit in which the March 2022 decree was rendered, these findings would support its best-interest finding. At trial, the caseworker testified that the mother had also not completed her court-ordered services in connection with the suit relating to her other two daughters. Thus, the trial court could have reasonably seen this circumstance as still more evidence of the mother's indifference to regaining custody of her children. Moreover, the trial court could have reasonably inferred from the mother's repeated instances of noncompliance that her failure to complete services in the instant case was not accidental and was instead part of a pattern of deliberate disregard. See Wyatt , 193 S.W.3d at 68 (holding factfinder could have reasonably found pattern of abuse and neglect based on two incidents of similar conduct by mother). In short, the little evidence in the record about the other suit conceivably may have had the opposite effect on the factfinder than the one advocated by the mother on appeal. The trial court could have reasonably concluded that, having already been spared termination once without mending her ways, the mother was unlikely to change her behavior and be a parent to this child if her parental rights were preserved here.
In holding so, we recognize that parental-termination cases are not a mechanism for simply reallocating children to better parents. In re D.L.W.W. , 617 S.W.3d at 81. But that is not what has happened in this case. Here, there is clear and convincing evidence that the mother has abdicated her role as parent and that the foster mother, who intends to adopt the child, has taken up the maternal mantle. The choice in this case is effectively one between no parent and an adopted parent.
The mother argues this case does not present such a stark, either-or choice. She reasons that there is no evidence that the foster mother could not or would not continue to care for the child if the mother is appointed as a possessory conservator. The mother urges that this arrangement would ensure that the needs of the child continue to be met while also allowing her to "maintain a bond with her child." She further urges that this arrangement is appropriate because she poses no danger to the child's wellbeing. And the mother posits that, given the child's young age, the Holley factor concerning the child's desires is neutral and does not support termination.
But the evidence shows there is little or no parent–child bond to maintain. Having visited her one-year-old child infrequently and irregularly after the child was removed from her care at birth, the mother does not have a relationship with her child. At the last visit, the child initially did not recognize her mother and cried. Instead, the child has bonded with her foster mother, the only parent she has known. Under these circumstances, the factfinder could have reasonably found that no meaningful parent–child bond existed. E.g., In re N.S.M. , No. 01-20-00764-CV, 2021 WL 1217328, at *4 (Tex. App.—Houston [1st Dist.] Apr. 1, 2021, pet. denied) (mem. op.) (holding factfinder could have reasonably found that no parent–child bond existed, given that 14-month-old child was removed from mother's care after birth and mother had visited only three or four times in preceding nine months).
As the mother correctly says, our court has made diverse pronouncements as to how we should evaluate the evidence when a child is too young to express her desires about the termination of parental rights. We have sometimes said this Holley factor is neutral under these circumstances. E.g., In re M.A.J. , 612 S.W.3d at 410. On other occasions, we have said the factfinder may consider whether a child who is too young to express herself has bonded with her foster family, is well-cared for in her foster placement, and has spent minimal time with her biological parents as a proxy for the child's desires. E.g., In re N.J.H. , 575 S.W.3d at 834. These differing approaches reflect differences in the facts, rather than resulting from the application of different legal standards. Compare In re M.A.J. , 612 S.W.3d at 410–11 (holding factor did not weigh in favor of finding that termination was in child's best interest in case in which there was no evidence child had bonded with foster parents), with In re N.J.H. , 575 S.W.3d at 834 (holding factor supported best-interest finding in case in which child had lived with foster parents for almost half his life, had bonded with them, and had only visited with father twice for about two hours). In other words, the general rule is that when a child is too young to express herself, her desires are neutral as to the trial court's best-interest finding, unless there is circumstantial evidence from which the factfinder could infer her desires by proxy. The circumstantial evidence in question need not relate to the child's bond with foster parents or the circumstances of the foster placement, so long as the evidence is a reasonable proxy for the child's desires. E.g., In re T.G.R.-M. , 404 S.W.3d 7, 16–17 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (stating that child under two years of age was too young to express his desires but noting that his lack of contact with mother since two months after birth gave rise to inference he lacked bond with mother so that factor supported termination); Walker , 312 S.W.3d at 619 (stating one-year-old child was too young to express his desires but taking into account his lack of conscious knowledge of father who had not seen him since he was born).
Here, a factfinder could reasonably find that evidence that serves as a proxy for the child's desires shows they weigh in favor of termination. The child has never lived with her mother and has been in her mother's presence a total of five times for a mere handful of hours since birth. In contrast, the child has lived with her foster mother for the majority of her life, has a bond with her, and is doing well with her.
Moreover, as we noted at the outset of our analysis, when parental indifference is in evidence, the child's desires are moot even if the evidence shows that the child desires to maintain the parent–child relationship because an indifferent parent does not reciprocate the child's desires, making a relationship impossible. Despite the child's tender age, the mother has been almost entirely absent from her life and has repeatedly engaged in behaviors that have thwarted the possibility of reunification.
On this record, the trial court could have reasonably found that appointing the mother as a possessory conservator with a limited right of supervised visitation, rather than terminating her parental rights, is not in the child's best interest. A child's need for certainty and permanence, including the establishment of a stable home and familial relationships, is the paramount consideration in a best-interest decision. In re J.G.S. , 574 S.W.3d at 126 ; see also FAM. § 263.307(a) (prompt and permanent placement of child in safe environment presumed to be in child's best interest). A permanent placement cannot be achieved so long as a parent retains his or her rights, and a trial court need not opt for dispositions less severe than termination when the evidence shows parental indifference to such a degree that it is unlikely the parent will rise to the occasion and fulfill her parental responsibilities going forward. See In re M.S. , 115 S.W.3d at 548 (stating child has interest in rendition of final decision so that adoption to stable home or return to parents is not unduly prolonged); e.g., In re K.P. , 498 S.W.3d 157, 175 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (recognizing that child could not have permanent, stable home without termination and parent's behavior over years showed reunification was impossible); In re M.N.G. , 147 S.W.3d 521, 526, 539–40 (Tex. App.—Fort Worth 2004, pet. denied) (holding factfinder could have reasonably found termination was in young child's best interest, rather than leaving child in foster care to preserve mother's visitation rights, in case in which child was removed from mother's care almost immediately after birth and evidence showed that mother lacked fundamental parenting skills).
Under the present circumstances, the mother's argument for possessory conservatorship amounts to an assertion that a trial court should not terminate her rights unless and until her behavior poses a risk to the child's wellbeing. She maintains that her continued presence in the child's life does not pose such a risk.
We disagree. When a parent consciously decides to be present in his or her child's life on a sporadic basis only and solely when it suits the parent to do so, or engages in a course of unjustifiable conduct that inevitably results in his or her absence, this behavior in and of itself jeopardizes the child's emotional wellbeing. E.g., In re M.D.M. , 579 S.W.3d 744, 767 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (agreeing that factfinder can infer child's wellbeing was endangered from evidence of parent's sporadic contact with and near absence from child's life); see also In re V.V. , 349 S.W.3d at 554 (stating that infant who is not looked after by parents "undeniably is in serious danger of physical and emotional injury"). Our decisions show that such parental indifference almost always eventually results in actual emotional harm to the child. E.g., In re K.P. , 498 S.W.3d at 175 (observing that mother's sporadic visitation caused child emotional distress). And we have recognized that minimal and sporadic visitation, and the adverse effect it has on the parent–child relationship, can support a trial court's best-interest finding under several of the Holley factors. E.g., In re R.J. , 579 S.W.3d at 115–16 (concluding that parents’ sporadic visitation without adequate excuse for absence reflected poorly on their parental abilities, indicated they could not meet child's emotional and physical needs now or in future, and showed parent–child relationship was not proper).
Here, there is already some evidence from which a reasonable factfinder could infer actual emotional harm. At the last visit with the mother, the child initially did not recognize her and cried for a while. Both the caseworker and the child advocate indicated in their testimony that the mother's inconsistent visitation with the child was a significant concern. Given the inherent potential for a parent's inconsistent presence in a child's life to harm the child's emotional wellbeing, the trial court was not obliged to defer termination of the mother's parental rights in lieu of possessory conservatorship until firmer evidence of actual harm developed, particularly in light of the ample evidence from which the trial court could have reasonably found that the mother's inconsistent presence was unlikely to improve and the potential for harm was likely to continue into the future. See Jordan v. Dossey , 325 S.W.3d 700, 726 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (stating factfinder could infer mother would endanger child's wellbeing by giving him life of uncertainty in future based on mother's past and present conduct); see also In re M.S. , 115 S.W.3d at 548 (noting that timely resolution of termination cases is essential to children's wellbeing, as delay can have significant adverse psychological effect on them).
The possibility that the child could experience confusion or upset in the future because her mother retains visitation rights as to her siblings, but not her, gives us pause. But for three reasons we conclude that this possibility is not so significant that it undermines the evidentiary sufficiency of the trial court's best-interest finding.
First, this possibility is speculative in nature. As the child was only one year old at the time of trial, she will not be aware of this disparity in the immediate future. The mother's argument assumes that she will continue to retain these visitation rights in the future, she will visit her other daughters often enough for the disparity to be noticed by the child, and the child will have a particular reaction to this disparity. Notably, these issues were not raised at trial. There is no evidence on these issues. On this record, the potential harm relating to the disparate visitation rights identified by the mother is too uncertain to upend the trial court's best-interest finding. See In re E.N.C. , 384 S.W.3d at 804 (instructing that vital facts cannot be established through multiple inferences that are stacked one atop another like house of cards).
Second, as discussed, the record contains evidence that the mother's sporadic visitation has actually harmed the child's emotional wellbeing and the factfinder could have reasonably found that the mother is likely to perpetuate this harm in the future if she retains her visitation rights. Unlike any confusion or upset that may result from disparate visitation rights amongst the mother's three children, the harm associated with sporadic visitation is not speculative in nature on this record.
Third, best-interest determinations must be made individually, on a child-by-child basis, even with respect to children in the same family, and the evidence can result in a parent losing his or her parental rights with respect to one child but not others even in the same proceeding. E.g., In re D.G. , No. 01-20-00720-CV, 2021 WL 1256895, at *8–11 (Tex. App.—Houston [1st Dist.] Apr. 6, 2021, no pet.) (mem. op.) (holding evidence sufficed to support best-interest finding as to one child but that evidence was insufficient to support best-interest findings as to two others); see also In re J.M.G. , 608 S.W.3d 51, 54 (Tex. App.—San Antonio 2020, pet. denied) (remarking that best-interest determinations are fact-intensive, based on totality of circumstances, and, consequently, determinations made in one case have limited value in another case because facts and state of evidence can vary significantly). Hence, a trial resulting in a decree that does not terminate a parent's rights in one case does not logically compel a like result in another case or as to other children, even though the children might not grasp the reasons for the different outcomes.
Finally, as part of her argument about the insufficiency of the evidence under the Holley factors, the mother asserts that no evidence exists about excuses for her behavior and that the corresponding Holley factor therefore does not support the trial court's best-interest finding. We reject this argument, however, because it misallocates either the burden of proof or burden of persuasion regarding excuses.
The Department has the burden to prove that termination of parental rights is in a child's best interest. But the Holley factors are not elements in a cause of action for termination on which the Department invariably bears the burden of proof. Rather, these nonexclusive factors provide a framework to assist factfinders in deciding whether clear and convincing evidence exists showing that termination is in a child's best interest and to assist appellate courts in evaluating the sufficiency of the evidence supporting such a best-interest finding. See In re D.L.W.W. , 617 S.W.3d at 81 (stating that appellate court may consider Holley factors in deciding whether termination is in child's best interest); In re B.D.A. , 546 S.W.3d at 360 (stating that factfinder may consider Holley factors to decide child's best interest).
Sometimes, evidence might be misleadingly suggestive of parental unfitness when viewed in isolation or unexplained. Additional context may show that the parent's acts or omissions were innocent, innocuous, or, at the very least, less damning. The Holley factors take this possibility into account by advising factfinders and appellate courts to consider any excuse for the parent's acts and omissions. Holley , 544 S.W.2d at 372 ; see In re A.A.A. , 265 S.W.3d at 518 (observing that court would evaluate mother's "acts and omissions that indicate that the parent–child relationship is improper, keeping in mind any excuses she has for her behavior").
Any party may present evidence and argument that potentially excuse a parent's acts or omissions, of course, but the parent is the one most likely to do so, given his or her personal knowledge about the underlying events and incentive to preserve his or her parental rights. Therefore, when the Department has introduced evidence probative of parental unfitness, the factfinder may draw an adverse inference against a parent who does not respond with a valid excuse for his or her acts or omissions by presenting additional evidence or counterargument based on existing evidence. See In re Z.N. , 602 S.W.3d 541, 548 (Tex. 2020) (per curiam) (indicating parent may controvert adverse evidence and inferences arising from that evidence through argument and introduction of evidence); e.g., In re R.J. , 579 S.W.3d at 115 (noting that parents provided valid excuses for just two of dozens of missed visits with child); Doe v. Brazoria Cty. Child Protective Servs. , 226 S.W.3d 563, 575 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (considering excuses given by mother but noting she had given no excuses for several behaviors indicative of unfitness); Wyatt , 193 S.W.3d at 71 (observing that mother offered excuses for only two acts and omissions relied on by Department and implicitly discounting her excuses on appeal on basis that factfinder could have reasonably rejected them). Doing so is consistent with the general rule that, in civil cases, the factfinder may draw reasonable adverse inferences from a party's failure to testify in response to probative evidence offered against him or her. E.g., In re G.V.S. , No. 04-18-00563-CV, 2018 WL 6624398, at *3 (Tex. App.—San Antonio Dec. 19, 2018, pet. denied) (mem. op.) (holding factfinder could draw negative inferences about father's criminal history based on his refusal to answer questions about this subject).
Consistent with the burdens of proof and persuasion, we have taken into account the mother's failure to offer valid excuses for behavior probative of parental unfitness, including her failure to be present in her child's life in a meaningful way and her failure to attend trial, in our evaluation of the sufficiency of the evidence. Her failure to provide valid excuses for her behavior weighs in favor of the trial court's finding that termination of her parental rights is in the child's best interest.
Having addressed the mother's arguments, we reiterate our holding that the evidence is legally and factually sufficient to support the trial court's finding that termination of the mother's parental rights is in the child's best interest. We therefore overrule both of the issues raised by the mother on appeal and affirm the decree.
CONCLUSION
We affirm the trial court's decree terminating the mother's parental rights.