Opinion
No. 04-17-00173-CV
08-23-2017
IN THE INTEREST OF A.M.B., a Child
MEMORANDUM OPINION
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2015PA02426
Honorable Karen Crouch, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice AFFIRMED
This is an appeal from a trial court's order terminating appellant mother's ("Mother") parental rights to her child, A.M.B. On appeal, Mother contends: (1) the evidence is legally and factually insufficient to support the trial court's finding that she constructively abandoned A.M.B.; and (2) the evidence is legally and factually insufficient to support the trial court's finding that termination was in A.M.B.'s best interest. We affirm the trial court's termination order.
In the same order, the trial court terminated Father's parental rights. Father did not file a notice of appeal contesting the order.
BACKGROUND
The record shows the Texas Department of Family and Protective Services ("the Department") first became involved with Mother on June 29, 2015. The Department received a priority case report alleging "neglectful supervision" and "physical neglect." There were concerns that Mother was using heroin — she was allegedly seen with fresh "track marks." At the time of the report, A.M.B. was approximately four months old.
Department case worker Lisa Martinez conducted an initial investigation. Mother admitted using heroin, telling Ms. Martinez she had recently used and was using twice a day every three days. Mother was living with her parents, who struggled to maintain basic amenities such as food, water, and electricity in the home; they often received assistance from local churches. Ms. Martinez noted domestic violence and alcohol issues with the maternal grandparents. There were also aggressive dogs in the home; the home smelled of urine. As for A.M.B., he appeared underweight and seemed to have some curvature of the back. Otherwise, he appeared healthy.
Because Mother expressed a willingness to seek drug treatment and the child was placed with either a family member or family friend — the record is not clear on this initial placement, the Department opened a family-based case. However, after Mother failed to make any progress, the Department filed a petition seeking termination in the event reunification was not possible. The Department prepared a service plan for Mother, which she signed. The trial court held the statutorily-required status and permanency hearings. Ultimately, the Department moved to terminate Mother's parental rights. After a final hearing, at which Mother appeared with her appointed counsel, the trial court determined her parental rights should be terminated. The trial court found five grounds supporting termination of Mother's parental rights and further found termination of Mother's parental rights would be in A.M.B.'s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O), (P) (West Supp. 2016); id. § 161.001(b)(2). Accordingly, the trial court rendered an order terminating Mother's parental rights. Thereafter, Mother perfected this appeal.
ANALYSIS
On appeal, Mother first challenges the legal and factual sufficiency of evidence with regard to the trial court's finding of constructive abandonment. See id. § 161.001(b)(1)(N). She also contends the evidence is legally and factually insufficient to support the trial court's finding that termination was in A.M.B.'s best interest. See id. § 161.001(b)(2). The standard of review is the same for both challenges.
Standard of Review
A parent's right to her child may be terminated upon proof by clear and convincing evidence that: (1) the parent committed an act prohibited by section 161.001(b)(1) of the Texas Family Code ("the Code"); and (2) termination is in the best interest of the child. Id. § 161.001(b)(1), (2); In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009); In re B.R., 456 S.W.3d 612, 615 (Tex. App.—San Antonio 2015, no pet.). "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." TEX. FAM. CODE ANN. § 101.007 (West 2008); see J.O.A., 283 S.W.3d at 344; B.R., 456 S.W.3d at 615. Because termination of parental rights results in permanent and unalterable changes for both parent and child, courts have held due process is implicated, requiring the use of the heightened clear and convincing standard of review. In re A.B., 437 S.W.3d 498, 502 (Tex. 2015); In re D.M., 452 S.W.3d 462, 468-69 (Tex. App.—San Antonio 2014, no pet.); In re E.A.G., 373 S.W.3d 129, 140 (Tex. App.—San Antonio 2012, pet. denied). Given the foregoing, we must determine whether the evidence is such that a fact finder could reasonably form a firm belief or conviction that termination was in the child's best interest. A.B., 437 S.W.3d at 502; In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).
In reviewing a legal sufficiency challenge in termination cases, we view the evidence in the light most favorable to the trial court's findings and judgment, and resolve any disputed facts in favor of the trial court's findings if a reasonable fact finder could have so resolved them. Id. We must disregard all evidence that a reasonable fact finder could have disbelieved and consider undisputed evidence even if such evidence is contrary to the trial court's findings. Id. In other words, we consider evidence favorable to termination if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id.
In a factual sufficiency review, we still give due deference to the trier of fact's findings, avoiding substituting our judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). "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 [in the truth of its finding], then the evidence is factually insufficient." Id. (quoting J.F.C., 96 S.W.3d at 266).
When conducting a sufficiency review, we may not weigh a witness's credibility — as it depends on appearance and demeanor; these are within the domain of the trier of fact. J.P.B., 180 S.W.3d at 573. Even if evidence regarding appearance and demeanor are found in the appellate record, we must nevertheless defer to the fact finder's reasonable resolutions. Id.
Grounds for Termination — Constructive Abandonment
As noted above, the trial court found five separate grounds for terminating Mother's parental rights. Specifically, the trial court found Mother: (1) knowingly placed her child or allowed the child to remain in conditions that endangered his physical or emotional well-being; (2) engaged in conduct or knowingly placed the child with someone who engaged in conduct that endangered his physical or emotional well-being; (3) constructively abandoned her child; (4) failed to comply with the provisions of a court order that established the actions necessary for her to obtain the return of her child; and (5) used a controlled substance in a manner that endangered the health or safety of her child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O), (P).
On appeal, Mother does not contest all five of these grounds; she contests only ground (N), constructive abandonment. See id. § 161.001(b)(1)(N). Because Mother does not challenge all five grounds, we can affirm the trial court's termination order on any of the four grounds not contested. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (explaining that only one finding under section 161.001(b)(1) is necessary to support termination order so long as termination is in best interest of child pursuant to section 161.001(b)(2)). Thus, we need not address Mother's sufficiency challenge as to ground (N). See id. Because we can affirm the trial court's termination order on the unchallenged grounds, we need only consider Mother's remaining issue regarding sufficiency of the best-interest finding. See id.
Best Interest
Mother claims the evidence is insufficient to support the trial court's finding that termination of her parental rights is in A.M.B.'s best interest. After reviewing the evidence under the proper standards of review, we disagree. See A.B., 437 S.W.3d at 502 (setting out standard of review for legal sufficiency); H.R.M., 209 S.W.3d at 108 (setting out standard of review for factual sufficiency).
Applicable Law
In Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976), the Texas Supreme Court set forth factors a court could consider when making a best interest determination:
(1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to promote the best interest of the child;
(6) the plans for the child by these individuals or by the agency seeking custody;
(7) the stability of the home or proposed placement;Id. However, these considerations, which are commonly referred to as "the Holley factors," are not the only factors a court may consider. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Moreover, a court need not find evidence of each and every factor before terminating the parent-child relationship. See id. As stated in C.H., "The absence of evidence about some of these considerations would not preclude a factfinder from reasonably forming a strong conviction or belief that termination is in the child's best interest, particularly if the evidence were undisputed that the parental relationship endangered the safety of the child." Id. And, as this court has recognized, in conducting our review of a trial court's best interest determination, we focus not on the best interest of the parent, but on the best interest of the child. D.M., 452 S.W.3d at 470.
(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.
Although proof of acts or omissions under section 161.001(b)(1) of the Texas Family Code does not relieve the Department from proving the best interest prong, the same evidence may be probative of both issues. C.H., 89 S.W.3d at 28 (citing Holley, 544 S.W.2d at 370; Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976)); B.R., 456 S.W.3d at 615. In conducting a best interest analysis, courts may consider circumstantial evidence, subjective factors, and the totality of the evidence, in addition to direct evidence. B.R., 456 S.W.3d at 616 (citing In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied)). Additionally, a fact finder may judge a parent's future conduct by his or her past conduct in determining whether termination of the parent-child relationship is in the best interest of the child. Id.
There is a strong presumption that maintaining the parent-child relationship is in a child's best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, we also presume that permanently placing a child in a safe environment in a timely manner is in the child's best interest. B.R., 456 S.W.3d at 615; see TEX. FAM. CODE ANN. § 263.307(a) (West Supp. 2016). In determining whether a parent is willing and able to provide the child with a safe environment, courts should consider the factors set out in section 263.307(b) of the Code, which include: (1) the child's age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4) whether the child has been the victim of repeated harm after the initial report and intervention by the Department or other agency; (5) whether the child is fearful of living in, or returning to, the child's home; (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home; (7) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home; (8) whether there is a history of substance abuse by the child's family or others who have access to the child's home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child. TEX. FAM. CODE ANN. § 263.307(b); see In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *4 (Tex. App.—San Antonio Apr. 29, 2015, no pet.) (mem. op.) (citing In re A.S., No. 04-14-00505-CV, 2014 WL 5839256, at *2 (Tex. App.—San Antonio Nov. 12, 2014, pet. denied) (mem. op.)); B.R., 456 S.W.3d at 615.
The Evidence
In our review, we have considered the Holley factors and the statutory factors in section 263.307(b) of the Code. See TEX. FAM. CODE ANN. § 263.307(b); Holley, 544 S.W.2d at 371-72. We have also considered the acts or omissions as found by the trial court under section 161.001(b)(1) of the Code, as well as the circumstantial evidence, subjective factors, and the totality of the evidence. See In re R.S.D., 446 S.W.3d 816, 820 (Tex. App.—San Antonio 2014, no pet.).
At the final hearing, the Department called five witnesses, including four Department case workers — Lisa Martinez, Tunde Olaniran, Nicole Weaver, and Sabrina Augustsson, and a drug assessment counselor — Joseph Balboa. These witnesses provided testimony relating to the Holley factors and the statutory considerations set out in section 263.307(b) of the Code. Mother did not call any witnesses.
1. Desires of the Child
At the time of trial, A.M.B. was not yet two years old. Thus, he was unable to express his desires regarding conservatorship. See TEX. FAM. CODE ANN. § 263.307(b)(1) (child's age and physical and mental vulnerabilities); Holley, 544 S.W.2d at 371-72. However, the trial court was entitled to consider testimony regarding his current placement and the time spent with Mother in evaluating his desires. See In re U.P., 105 S.W.3d 222, 230 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). As the Fourteenth Court of Appeals stated, "When children are too young to express their desires, the fact finder may consider that the children have bonded with the foster family, are well-cared for by them, and have spent minimal time with a parent." In re J.D., 436 S.W.3d 105, 108 (Tex. App.—Houston [14th Dist.] 2014, no pet.). According to Ms. Augustsson, Mother was given weekly, one-hour visits. In sixty-two weeks, Mother visited with A.M.B. approximately forty-nine hours; she was late thirty-three of fifty-four visits. See U.P., 105 S.W.3d at 230. Mother was advised that if she made progress with regard to her service plan, visitation would be increased. Despite this, Mother made little progress with regard to the service plan requirements.
In addition, Ms. Augustsson testified A.M.B. appeared more attached to his foster parents than to his mother. See J.D., 436 S.W.3d at 108. The foster parents are devoted to A.M.B. and he has made great strides since he was placed with them. A.M.B. attends numerous therapy sessions due to developmental issues, and the foster parents are diligent in this regard. Mother was told the child attends therapy four times a week, but she never requested to attend. Ms. Augustsson testified that if Mother had asked to attend the sessions, she would have been permitted to attend.
2. Emotional & Physical Needs/Emotional & Physical Danger
A.M.B. is very young and will require constant emotional and physical support for many years. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371-72; In re J.G.M., No. 04-15-00423-CV, 2015 WL 6163204, at *3 (Tex. App.—San Antonio Oct. 21, 2015, no pet.) (mem op.). Due to his age, he is vulnerable if left in the custody of a parent who is unable or unwilling to attend to his needs. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371-72; J.G.M., 2015 WL 6163204, at *3. Beyond his tender years, A.M.B. has special physical needs. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371-72.
When the Department began its investigation, the case worker noted a curvature of A.M.B.'s back. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371-72. The case worker counseled Mother about the need for "tummy time." When A.M.B was placed in formal foster care at approximately fourteen months of age — he had originally been placed with either a family member or family friend, his foster parents immediately noticed developmental issues. A.M.B. was neither walking nor speaking. See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371-72. Neither Mother nor her family acknowledged these delays. Only when A.M.B. was placed in foster care were these issues addressed. After testing, it was determined A.M.B. was "developmentally delayed, physically delayed, [and] speech delayed." See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371-72. A.M.B. was diagnosed with "floppy baby syndrome." See TEX. FAM. CODE ANN. § 263.307(b)(1); Holley, 544 S.W.2d at 371-72. He currently attends therapy four times a week. He takes part in occupational, physical, speech, and play therapy to address his developmental issues. Since his placement in foster care, A.M.B. has made great progress. He is now walking, exhibits more social interaction and exploring behavior, is more verbal, and smiles more.
The foster parents, on their own, sought the advice of a neurologist and initiated extra therapy for A.M.B. Although Mother attended one appointment with the neurologist, she failed to attend the follow-up appointment even though she was aware of it.
In addition to Mother's inability to recognize or address A.M.B.'s developmental issues, the Department presented evidence establishing how Mother's behavior and living situation placed, and would continue to place, A.M.B. in physical and emotional danger. When the Department began its investigation, Mother admitted using heroin. See TEX. FAM. CODE ANN. § 263.307(b)(8) (whether there is history of substance abuse by child's family or others who have access to child's home); id. § 263.307(b)(12) (whether child's family demonstrates adequate parenting skills); Holley, 544 S.W.2d at 371-72. In fact, she admitted she had used heroin three days before the case worker Lisa Martinez first visited her. Mother told Ms. Martinez she used heroin twice a day, every three days. Although Mother denied using heroin in front of A.M.B., she admitted she would return home approximately thirty minutes after using and that the "high" lasted approximately two hours. Thus, by Mother's own admission, she was under the influence of heroin when she was attempting to care for A.M.B. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72.
Mother expressed her willingness to seek substance abuse treatment. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10) (willingness and ability of child's family to see out, accept, and complete counseling services and cooperate with agency's supervision); id. § 263.307(b)(11) (willingness and ability of child's family to effect positive and personal changes within reasonable time); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. During the course of the case, Mother was referred to drug treatment numerous times. While the case was still in family-based services, Mother admitted to case worker Tunde Olaniran she needed substance abuse treatment and recognized her drug use was harmful to A.M.B. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. She admitted past use of marijuana, cocaine, and heroin. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72. Mother's drug use was the main focus of services at this stage. Mr. Olaniran referred Mother to a treatment program and although she began the program, she failed to complete it. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Moreover, during this time she tested positive for drug use and admitted she had used methamphetamine as well as heroin. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Mother claimed she was using drugs because of stress. At first, she agreed to attend an inpatient drug abuse program, but never did, explaining she did not want to be away from her son. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. However, A.M.B had already been removed from the home at that point, and Mother was only seeing him once a week. Twice Mother began outpatient treatment — once through the drug court program, but each time failed to complete it. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Mr. Olaniran testified he was unsure if Mother understood the severity of the situation. After the drug court program rejected Mother, the Department filed its petition, moving the case into formal services, which included the preparation of a court-ordered service plan.
The evidence shows that once the case was moved from family-based services into formal services, Mother's drug problem was still the main focus. Mother admitted she began using heroin when she was thirty-three years old. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72. Although she had some periods of abstinence, she continually returned to using. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72. At the time of her first drug assessment in February 2016, she was forty-one or forty-two years old. Thus, she had been using eight or nine years by then. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72.
Pursuant to her service plan, she was required to complete a drug assessment and follow the recommendations resulting from it. Mother completed drug assessments in February and September of 2016. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. Both assessments recommended Mother attend a detox program as well as inpatient and outpatient treatment. At the February assessment, Mother admitted having used heroin that day. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. As recommended by the counselor after the February assessment, Mother attended a detox program in February 2016. However, Mother refused to attend inpatient treatment. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Mother asked to attend outpatient treatment, but after a meeting, case workers determined inpatient treatment was required. A case worker explained to Mother that she had to attend inpatient treatment, but Mother stated it was unnecessary because she was not "actively using drugs." See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. Her urinalysis tests, however, tell a different story.
Ms. Augustsson testified Mother tested positive for drugs in December 2015 and January 2016. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72. In March 2016, though requested, Mother did not appear for her drug test. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72. Mother claimed she did not go because she was taking hydrocodone. According to Ms. Augustsson, when a parent fails to take a requested drug test, it is counted as a "positive" result. Mother also failed to take requested urinalysis tests twice in May 2016 and again in July 2016. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72. Ms. Augustsson testified Mother admitted using drugs in March, May, and July. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72. Mother claimed, with regard to July 2016, that she did not take the requested test because she was once again using painkillers. See TEX. FAM. CODE ANN. § 263.307(b)(8); Holley, 544 S.W.2d at 371-72. She admitted she did not have a prescription for the hydrocodone; rather, a friend gave her the pills. Mother was also asked to submit to hair follicle exams in June and July of 2016, but she failed to do so. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72.
When Ms. Augustsson took a leave of absence, Nicole Weaver took over for the Department. Ms. Weaver testified Mother's urinalysis tests in September, October, and November were negative. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72. However, Ms. Weaver testified that at one of her December 2016 visitations, Mother "seemed not herself," and had numerous bruises on her face. Thus, when Ms. Augustsson returned from leave, she again requested Mother submit to a hair follicle examination, which Mother failed to do. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72. Moreover, Ms. Augustsson testified that at Mother's final visitation in January 2017 — two weeks before the February 8, 2017 final hearing, Mother appeared to be under the influence of a controlled substance. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Ms. Augustsson again requested Mother submit to a hair follicle exam, but Mother refused. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72. As to the January request, Mother told Ms. Augustsson she could not afford it. Ms. Augustsson told her there was no charge, but Mother still failed to submit. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72. Mother also claimed she lacked transportation for purposes of the drug test, but Mother was able to arrange transportation — using her father's vehicle — for purposes of visitation, and the testing facility was within the same radius as the visitation site.
Ms. Augustsson testified she believes, given Mother's continued drug use, that she poses a danger to A.M.B. Ms. Weaver echoed this testimony, stating it was unsafe for the child to be with a heroin user who refuses to address her drug issues. Ms. Augustsson stated Mother failed to show the progress that was needed for reunification, and there were no major changes in Mother's behavior since the Department first became involved with her. See TEX. FAM. CODE ANN. § 263.307(b)(10); Holley, 544 S.W.2d at 371-72.
Beyond Mother's drug use, there was a second major factor to be addressed with regard to A.M.B.'s emotional and physical safety — now and in the future — and that was suitable housing. As noted above, when the Department first contacted Mother, she was living with her parents. It had been reported they struggled to maintain power and water in the house or provide proper food. See Holley, 544 S.W.2d at 371-72. After investigation, the Department learned Mother's father had been convicted of sexually molesting one of his daughters when she was a child, and he was a registered sex offender. See id. Mother initially lied about this to the case worker.
Moreover, the parents and Mother had issues involving domestic violence and alcohol abuse. See id. When Mother was pregnant with A.M.B., her mother allegedly assaulted her. See id. Assault charges were filed, though there was no evidence presented regarding the disposition of the charges.
According to Ms. Martinez, the family also kept eight aggressive dogs in the house. See id. When she visited, the family had to place the dogs in the garage before she could even enter the house, which smelled strongly of urine. See id. Ms. Martinez described the smell as "prominent."
Mother was told, and then as part of her service plan was required, to obtain her own appropriate housing. Ms. Weaver talked to Mother about the need to find safe and stable housing in order to have A.M.B. returned to her. Although Mother told Ms. Weaver she was looking for her own place, she apparently never found one. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. Ms. Augustsson also raised the issue with Mother, telling her "numerous times" that she needed to find a better living situation. Both case workers referred Mother to organizations for help, but Mother never followed through. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. Mother continued to reside with her parents throughout the case and at the time of the final hearing was still living with them.
Mother's inability or unwillingness to address her drug and housing issues places her child in physical and emotional danger. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Mother admitted using illegal drugs, testing positive numerous times over the course of the Department's involvement, and refused to seek treatment. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. She also refused to seek alternate housing. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72.
In addition, Mother has not challenged the trial court's findings that she: (1) knowingly placed her child or allowed the child to remain in conditions that endangered his physical or emotional well-being; (2) engaged in conduct or knowingly placed the child with someone who engaged in conduct that endangered his physical or emotional well-being; (3) failed to comply with the provisions of a court order that established the actions necessary for her to obtain the return of her child; and (4) used a controlled substance in a manner that endangered the health or safety of her child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P). Although this does not relieve the Department from proving termination is in A.M.B.'s best interest, these termination grounds are probative on the issue of his best interest and shows Mother's propensity for placing her child in dangerous situations. See C.H., 89 S.W.3d at 28; B.R., 456 S.W.3d at 615; see also TEX. FAM. CODE ANN. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72.
Mother's prior and continuing choices portend future instability, thereby endangering her young child. See B.R., 456 S.W.3d at 616. The trial court was entitled to infer from her prior conduct and continued conduct, that similar conduct would recur, i.e., that she would continue to use drugs and reside in a home that is inappropriate for her child. See B.R., 456 S.W.3d at 616. The danger of continued drug use and refusal to accept or seek help or seek proper housing creates instability and physical and emotional danger for A.M.B. should he be reunited with Mother.
3. Parenting Abilities/Available Programs
The evidence of drug use and Mother's continued failure to resolve her drug problem, which has existed for the past eight or nine years, is also relevant to Mother's inability to properly parent. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Mother chose to use drugs, subjecting her child to the effects of her choice. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. By Mother's own admission, she was under the influence of heroin at times when she was supposed to be caring for A.M.B. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. A parent who is unable to address her drug use would likely be unable to provide proper care or supervision for a young child. See TEX. FAM. CODE ANN. § 263.307(b)(8); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72.
Mother's refusal to seek and obtain proper housing is likewise relevant to her inability to properly parent her child. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Two different case workers told Mother that in order to be reunified with her child, she would need to obtain housing of her own. She knew that if she wanted to regain custody she could not continue to reside in a home with a registered sex offender, a home in which alcohol abuse and domestic violence were present. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. Despite these warnings, Mother never followed through with housing referrals nor did she obtain housing on her own. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72.
Mother failed to take advantage of the services and programs offered to her, services that were supposed to aid her attempt at reunification. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. The Department created a service plan tailored for Mother's needs and the trial court adopted the plan as a requirement for reunification. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. Mother signed the service plan and it was filed with the court. As previously discussed, Mother was required, among other things, to complete a drug assessment and any treatment recommended thereafter. She was also mandated to obtain proper housing. The service plan also required that she complete a parenting class. She was supposed to submit to a psychosocial evaluation and pursue any recommendations that resulted from the evaluation, which in her case included individual therapy. Mother was also required to provide proof of employment.
We have already described in detail Mother's failures with regard to drug treatment and housing. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. And although she completed her parenting class and submitted to a psychosocial evaluation, she failed to complete the individual counseling that was recommended as a result of her evaluation. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. Case workers described her attendance at counseling sessions as "sporadic," and she was ultimately dismissed from counseling for non-attendance. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72. And, although Mother claimed she was working full-time through a temporary agency, she provided only a single pay stub to establish employment. See TEX. FAM. CODE ANN. § 263.307(b)(10); id. § 263.307(b)(11); Holley, 544 S.W.2d at 371-72.
4. Plans for Child by Those Seeking Custody/Stability of Home or Proposed Placement
Mother's lack of stability is demonstrated by the evidence of her continued drug use, her inability to provide suitable housing, and her failure to complete most of the provisions of her service plan. See TEX. FAM. CODE ANN. § 263.307(b)(8); § 263.307(b)(10); id. § 263.307(b)(11); id. § 263.307(b)(12); Holley, 544 S.W.2d at 371-72. In addition, it seems Mother has no familial or other support system beyond her parents, who have serious problems of their own. See TEX. FAM. CODE ANN. § 263.307(b)(13) (whether adequate support social system consisting of extended family and friends is available); Holley, 544 S.W.2d at 371-72. Other maternal family failed to recognize or act on A.M.B.'s developmental issues. It was only when he was placed with his foster family that these issues were addressed. A week or so before the final hearing, Father's sister expressed her willingness to adopt A.M.B. See TEX. FAM. CODE ANN. § 263.307(b)(13); Holley, 544 S.W.2d at 371-72. The trial court recessed the hearing to permit the Department to conduct an assessment of the paternal aunt's suitability for placement and adoption. The parties were required to report back to the trial court before it rendered a final order. Ultimately, however, the trial court rendered an order naming the Department as managing conservator. This suggests placement with the paternal aunt was determined to be unsuitable. There was a concern that she might not meet adoption requirements because of her past, somewhat extensive, criminal history.
A.M.B. was, at the time of trial, in a foster home, where he had been for approximately ten months. See Holley, 544 S.W.2d at 371-72. As set out above, his foster parents were the first to notice and address his developmental issues, going so far as to seek consultation with a neurologist on their own and initiate additional therapy. With these foster parents, A.M.B.'s therapeutic needs are now being met. See id. Case workers testified about the positive changes in A.M.B.'s development since his placement with the foster parents. See id. A.M.B. is more social, more verbal, and is now walking. He is smiling and more interactive. According to Ms. Augustsson, the foster parents are very devoted to A.M.B. and he is very attached to them, more so in fact than to Mother. See id.
The foster parents intend to adopt A.M.B. The Department agrees adoption by the foster parents is in the child's best interest. Ms. Augustsson testified the foster parents can meet A.M.B.'s current and future needs.
5. Acts or Omissions Indicating Parent-Child Relationship Not Proper/Excuses
The evidence of acts or omissions by Mother that indicate she had an improper relationship with her child are those set forth above in our discussion of Mother's acts that physically and emotionally endangered A.M.B., i.e., Mother's continued drug use and failure to obtain suitable housing. See Holley, 544 S.W.2d at 371-72. The only excuse provided for Mother's drug use was her claim that A.M.B.'s father got her hooked on drugs. No evidence was presented regarding an excuse for her failure to obtain housing or complete other portions of her service plan. See id.
Summation
Mother exposed her child to her own drug use, endangering his physical and emotional well-being. She refused to address her drug issues. Mother failed to secure safe, stable housing. Returning A.M.B. to her in the absence of new housing would require A.M.B. to live with a registered sex offender. It would also potentially expose A.M.B. to alcohol abuse and domestic violence. Despite provision of services — referrals to drug programs, counseling programs, and housing programs — Mother failed to take advantage and change her behavior. Mother's inaction in this matter suggests continued dysfunction and instability. See B.R., 456 S.W.3d at 616; M.R., 243 S.W.3d at 821 (holding evidence of parent's unstable lifestyle can support fact finder's conclusion that termination is in child's best interest).
Therefore, based on the foregoing, we hold the relevant Holley factors, as well as those set out in section 263.307(b) of the Code, weigh in favor of a finding that termination was in the best interests of A.M.B. See TEX. FAM. CODE ANN. § 263.307(b); Holley, 544 S.W.2d at 371-72. Recognizing that in conducting a best interest analysis, the trial court was permitted to (1) consider circumstantial evidence, subjective factors, and the totality of the evidence, in addition to the direct evidence presented, and (2) judge Mother's future conduct by her past conduct, we hold the trial court was within its discretion in finding termination of Mother's parental rights would be in the best interest of the child. See B.R., 456 S.W.3d at 616. In other words, the evidence is such that the trial court could have reasonably formed a firm belief or conviction that termination was in A.M.B.'s best interest. See J.P.B., 180 S.W.3d at 573.
CONCLUSION
Given Mother's failure to challenge all of the grounds upon which the trial court found termination was proper, it is unnecessary to address her sufficiency challenge relating to constructive abandonment. See A.V., 113 S.W.3d at 362. As to the best interest finding, we hold the evidence is legally and factually sufficient to have permitted the trial court, in its discretion, to find termination was in A.M.B.'s best interest. See J.P.B., 180 S.W.3d at 573. Accordingly, we hold the trial court did not err in terminating Mother's parental rights, overrule Mother's sufficiency complaints, and affirm the trial court's termination order.
Marialyn Barnard, Justice