Opinion
03-23-00396-CV
12-22-2023
M. S., Appellant v. Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 21DFAM328732, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING
Before Justices Baker, Triana, and Smith
MEMORANDUM OPINION
Edward Smith, Justice
Appellant M.S. (Mother) appeals from the trial court's final decree terminating her parental rights to her three-year-old son, Dan, and her one-and-a-half-year-old daughter Mara. In six issues on appeal, Mother challenges the trial court's findings that (1) the evidence was legally and factually sufficient to prove that Mother placed the children in an endangering environment, (2) the evidence was legally and factually sufficient to prove that Mother engaged in endangering conduct, (3) the evidence was legally and factually sufficient to prove that Mother failed to comply with her mandatory service plan, (4) the evidence was legally and factually sufficient to prove Mother used a controlled substance in a manner that endangered the health or safety of the children, and (5) that termination was in the best interest of the children. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (P), (2). Finally, she challenges the trial court's order appointing the Department as the children's managing conservator. For the following reasons, we affirm the trial court's termination decree.
For the children's privacy, we will refer to them by aliases and their family members by their relationships to them. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8.
FACTUAL AND PROCEDURAL SUMMARY M.S. is the biological mother of three-year-old Dan and one-year-old Mara. Based on concerns of drug use, allegations of neglect, and concerns about the environment of the family's purported residence, the Texas Department of Family and Protective Services (the Department) removed the children on November 19, 2021, and was awarded temporary managing conservatorship of the children the same day. On November 19, 2021, the Department also filed a petition seeking termination of Mother's parental rights.
D.A. (Father) is the biological father of Dan and Mara-and his parental rights were also terminated in the trial court's order. Father, however, is not a party to this appeal.
The trial began on April 19, 2023, and resumed on May 17, 2023. Over the course of trial, the trial court heard testimony from Department caseworker Jennifer Calamateo, Mother, Dan and Mara's foster parents (Foster Mother and Foster Father, collectively Foster Family), and Debbie Belviy, Dan and Mara's guardian ad litem. The exhibits included the court-ordered service plan for Mother, the removal affidavit, and pictures of the residences Mother lived at throughout the pendency of this case.
Calamateo testified that this case began when the Department received a referral alleging neglectful supervision of Dan and Mara by Mother. Mara was born on October 17, 2021. On October 18, 2021, the Department received an intake affidavit alleging neglectful supervision of Dan and Mara. According to the affidavit, the Department was unable to locate Dan and he was placed on a Child Safety Check Alert List notification; Mother was not participating in court hearings in her current case with the Department regarding her other biological children; and Mother did not inform the Department of her pregnancy with either Dan or Mara.
After receiving the intake affidavit, Calamateo visited Mother at the hospital where she had just given birth to Mara. While at the hospital, Mother provided the Department with an address in Killeen where she claimed she lived. When Calamateo arrived at the residence three days later, the owner of the home told her that Mother, D.A. (Father), and the children had been staying with her but left the day before and that she believed Mother and Father were living in a vacant house among a block of vacant homes in an area "known to be frequented by meth users, prostitutes, and other transients." When Calamateo arrived at the vacant house, Mother's purported residence, she testified that she observed a man fitting Father's description run behind the residence. She stated that she knocked on the door but no one answered. The next day, the Harker Heights police department arrived at the home for a welfare check but received no response from inside the residence. Shortly thereafter, on November 18, 2021, the Department acquired a writ to enter the residence to examine the children, Mother, and Father, and to assess their safety. Calamateo testified that when she arrived at the residence, she noted the exterior of the residence was "littered with dangerous debris, clutter, scattered clothing, and animal feces." Upon entering the interior of the residence, Calamateo testified the condition of the living space was in "squalor" and she smelled the odor of urine and feces. The windows were boarded up and covered with rags, preventing any natural light from entering the residence. Calamateo observed one-month-old Mara to be sleeping on blankets on the floor. She also observed that the room was being heated by only a small space heater that was plugged in with electrical cords running outside the residence. Calamateo testified that she observed Mara and noted that she did not look healthy-she appeared to have thrush and not to have gained any weight since she was born one month before. The room was damp and cold and Mara was not properly swaddled. Dan was not wearing proper clothes for the weather, and he appeared to be unclean. Calamateo also testified that the residence had no running water. Instead, there was a bucket with water and a squeeze bottle in the bathroom that the investigator believed Mother and Father used to bathe themselves and the children. She testified that the bathroom was unusable as the toilet was full of human feces and bugs and the sink was filled with rubber gloves and trash. Inside the kitchen, Calamateo testified she observed a dog chained to a tire. While there was food in the kitchen, most of it was either spoiled or otherwise inedible.
In her testimony, Mother agreed the condition of the residence where the children were removed was unclean and not a safe living environment for the children, but she testified that the children were not actually living there full time, and instead were sleeping at a friend's house. Mother also testified about her history with the Department. She confirmed that she has seven children, including Dan and Mara, and does not have custody of any of them. In March 2014, the Department was notified that Mother was suspected of medical neglect of the children, including ongoing safety concerns of the children due to Mother's significant history with alcohol and drug abuse. Two years later, in October 2016, the Department received an intake alleging neglectful supervision relating to alcohol abuse, and Mother's four other children were removed from her care. The alcohol abuse allegations were not substantiated and the case was therefore referred to Family-Based Safety Services (FBSS). During the FBSS stage, however, the children were removed due to Mother's methamphetamine use. Evidence at trial also showed Mother has a criminal history, including a 2000 conviction for robbery, a 2006 conviction for interfering with public duties, and a 2015 conviction for driving while intoxicated.
Calamateo and Mother testified about Mother's court-ordered service plan and her compliance with the plan. The plan required Mother to maintain consistent contact with the Department and be subject to regular drug testing. Calamateo testified that she reviewed the plan with Mother and Mother did not express confusion at the plan's requirements. Calamateo testified that for a year-long period between November 2021 and December 2022, Mother was not compliant with her court-ordered service plan or drug testing and maintained inconsistent contact with the Department. Calamateo testified that Mother missed the majority of her mandatory drug tests between November 2021 and December 2022.
Mother spent three weeks in a rehabilitation center in December 2022. She testified it was her first time attending rehabilitation and she decided to attend in an attempt to regain custody of her children. After she completed the three-week rehabilitation program, Mother began to increasingly comply with her service plan and drug testing. She began consistently drug testing, testing negative from December 2022 to March 2023. However, shortly before trial in early March 2023, Mother tested positive for methamphetamine on a hair follicle test, showing a methamphetamine level of 13,466, which Calamateo testified was a high number. Mother could not explain the reason for the increased number.
The evidence showed that Mother has a lengthy history with substance abuse. Mother testified that she began using methamphetamine when she first lost custody of her children and has used it on and off for the last 20 years. At the first trial setting, Mother testified that she was working towards sobriety on her own as she did not have a sponsor and that she did not attend meetings. However, at the second day of trial in May, Mother testified she was working on a relapse prevention plan with a counselor. Mother testified that she was aware methamphetamine is dangerous to her as well as her children but contended that Mara did not test positive for methamphetamine at birth and "at no time" were Dan and Mara in her care while she was using methamphetamine.
Additionally, during the pendency of the case, Mother did not maintain steady employment. On the second day of trial in May, Mother testified that had been cleaning houses for the past eight or nine months. Before she began cleaning houses, she was unemployed. She testified that for the month of March she made approximately $600.00; she testified she did not know what she made for any other given month.
Calamateo testified that Mother did not maintain stable or otherwise permanent housing during the pendency of this case. She testified that after Dan and Mara were removed, she stayed with a friend for approximately six months. During the pendency of this case, Mother resided in approximately three different residences. At least one of these residences was owned by her "friend", but Mother declined to provide the friend's last name. She testified that she then moved in with Father's mother and stayed there for approximately three or four months. She testified that Father did not live with his mother permanently but would occasionally "come and go." Finally, Mother stayed with another friend before attending rehabilitation in early December of 2022. During the first day of trial, Calamateo testified that despite several attempts, Mother would not permit her to inspect any of the places she stayed during the pendency of this case. She testified that one time she asked Mother if she could do a home visit, to which Mother agreed and told Calamateo she would text her a good time to visit. Calamateo testified that Mother never reached out to her to schedule a home visit. Calamateo testified that she attempted to visit Mother most recently two weeks before trial. She testified that no one answered the door and that she was therefore unable to enter the residence. Mother explained on the first day of trial that she was not present at the residence when Calamateo arrived for the visit because she was being psychologically evaluated and drug tested.
During the second day of trial, Mother testified that she was presently residing with Father's grandmother. She testified she is paying half of the living expenses but her name is not on the lease. She testified she believed the lease would expire in two months and her name would be added to the lease then, but admitted she has not followed up with the landlord to confirm this. Calamateo testified that, shortly after the first day of trial, Mother allowed Calamateo to observe the residence where Mother was living with Father's grandmother. Calamateo testified that the residence was clean and litter free.
Mother testified that she did not visit her children between November 2021 and March 2022, despite being granted supervised visits. She stated that she had a couple visits with them between March 2022 and June 2022. Then she went another six months without seeing them before visiting them again in December 2022. Calamateo testified that Mother spent approximately 21 hours visiting her children during the pendency of this case. Calamateo testified that, after completing rehabilitation in December 2022, Mother began visiting the children more frequently and that the visits have been appropriate. While Mother has told her children she loves them, they do not tell her they love her nor do they refer to her as "mom".
Throughout most of this case, Mother was still dating Father, who was similarly non-compliant with his court-ordered service plan and drug testing. Father's caseworker testified that Father had not complied with any part of the service plan or the required drug testing. Mother testified on the second day of trial that she was no longer in a relationship with Father and that she had not seen him since a hearing in March 2023. At that hearing, however, Father testified he was paying Mother's share of the rent. He also expressed his intent to get back together with Mother. While Mother testified she did not have a desire to get back together with Father, Calamateo testified she believes Mother could still be in a relationship with Father due to the fact that she is still living with his grandmother and Father's name is on the lease. Calamateo testified that Father has tested positive for methamphetamine in the past and that he is not currently drug testing.
Dan and Mara have been living with a foster family (Foster Family) since November 2021. In addition to fostering Dan and Mara, Foster Family have three biological children who, at the time of trial, were ten, nine, and six years old. Calamateo testified that she visits the family each month and that she has no concerns with the home. She stated Dan calls his foster parents "Mom and Dad" and that the children appear "very bonded" to their foster parents. She testified that their home with Foster Family is "the only home they have ever known." Foster Mother testified that Dan is "doing great . . . [h]e's a spunky little three-year-old." She further testified that he has developed a strong bond with the entire family; she stated "[the Foster Family biological children] are his sisters and his brother, and they are his best buddies." She testified that Dan has started to call her his mother, and that he "has been a joy in our family and we all love him very much."
Regarding Mara, Foster Mother testified that at the time of trial she was nineteen months old and "is doing well." Foster Mother explained that Mara has an anterior displacement of the anus, which is a birth defect that causes her physical problems. She testified that they also recently learned that Mara has a deletion of a gene, causing her to develop intellectual and physical difficulties. She and her husband have taken Mara to various doctor appointments approximately two times a month for the last eighteen months. She also explained that Mara is receiving speech, feeding, and occupational therapy at her daycare. In addition, she has seen "five different therapists at a private therapy center" where she has received the same types of therapy on a weekly basis. Mara has had two surgeries since this case began-one in June 2022 and one in February 2023. Mother testified she was aware that at nineteen months old Mara cannot yet walk or talk. She stated she was aware Mara had surgery during the pendency of the case but did not ask the reason for the surgery. Foster Mother testified that both Dan and Mara have heart murmurs. She testified that the heart murmurs do not presently require any surgeries or medications. Mother admitted she did not find out the children had heart murmurs until after this case began.
Mother stated it was her belief that it would be in the children's best interest to have a continued relationship with her and expressed her desire to have them returned to her care. She stated that she has made behavioral changes, including becoming more patient and punctual. She also stated she is on Medicaid and has applied for public housing and food stamps. Calamateo testified that, although Mother has made some positive behavioral changes, the Department was still concerned about her ability to provide a safe, suitable home for the children due to the fact that she has not maintained stable employment, she has not demonstrated she can maintain a sober lifestyle for the next several years until the children reach adulthood, and that she appears to have a continuing relationship with Father, who is known to have substance abuse problems. Instead of returning the children to Mother's care, Calamateo testified, it would be in the children's best interests to terminate her parental rights so they may be adopted by their Foster Family.
Debbie Belviy, the children's guardian ad litem, also recommended termination of Mother's parental rights, testifying that the children have thrived in their home with Foster Family who are meeting the children's needs. Belviy stated that she "struggle[d] to see how [Mother] would be able to meet the emotional or physical needs of the children." She was also skeptical of Mother's ability to remain drug-free because of her twenty years of drug use and lack of support necessary to prevent a relapse. Belviy also opined that Mother had an inability to maintain stable housing and employment, as she "couch surfed" for a while and now is living with Father's family. She testified that "I'm not sure how protective that would be with regard to [Father]." Finally, Belviy testified as to Mother's previous involvement with the Department, stating: "We've seen some other cases and they've been really difficult cases." She stated that Mother's previous history with the Department shows "[a] lack of any type of parental abilities."
On June 14, 2023, the trial court signed a Final Decree of Termination, finding by clear and convincing evidence that termination of Mother's rights was in the children's best interest under section 161.001(b)(2) and warranted under subsections (D), (E), (O), and (P) under section 161.001(b)(1) of the Family Code. Mother timely filed this appeal.
DISCUSSION
We review the sufficiency of the evidence supporting a trial court's termination decree under well-established standards. The Department must prove by clear and convincing evidence at least one statutory ground for termination and that termination is in the child's best interest. See Tex. Fam. Code § 161.001(b). Clear and convincing evidence is "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id. § 101.007; In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). "The distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered." In re A.C., 560 S.W.3d at 630. In reviewing legal sufficiency, we view the evidence in the light most favorable to the factfinder's determination, including undisputed contrary evidence, and assume the factfinder resolved disputed facts in favor of its finding. Id. at 630-31. In reviewing factual sufficiency, we weigh the evidence favoring the finding against disputed or conflicting evidence and consider whether the evidence "a reasonable factfinder could not have credited in favor of a finding is so significant that the factfinder could not have formed a firm belief or conviction that the finding was true." Id. An appellate court must "provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses." In re A.B., 437 S.W.3d 498, 503 (Tex. 2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
Statutory predicate grounds
In her first four issues, Mother challenges the legal and factual sufficiency of the evidence supporting the trial court's findings under subsections (D), (E), (O), and (P). See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O), (P). We begin by analyzing the subsections (D) and (E) findings because of those findings' "significant consequences for future parental rights." See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam).
Under subsection (D), a court may terminate parental rights to a child if the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child. See Tex. Fam. Code § 161.001(b)(1)(D). Under subsection (E), termination may occur if the parent has engaged in conduct that knowingly placed that child with persons who engaged in conduct which endangers the child's physical or emotional well-being. See id. at § 161.001(b)(1)(E). Subsection (D) focuses on the child's physical environment, and the parent's conduct can be a factor in producing an environment that threatens the child's well-being. See J.G. v. Texas Dep't of Fam. & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.-Austin 2019, no pet.) (quoting In re M.D.M., 579 S.W.3d 744, 764 (Tex. App.-Houston [1st Dist.] 2019, no pet.)). "A single act or omission can support termination under subsection (D), but termination under subsection (E) must be based on "a voluntary, deliberate, and conscious course of conduct." In re J.G., 592 S.W.3d at 524. In considering subsection (E), "the focus is on the parent's conduct-including acts, omissions, or failures to act-and, specifically, on whether the evidence shows that the parent engaged in 'a voluntary, deliberate, and conscious course of conduct' that endangered the child's physical or emotional well-being." V.P. v. Texas Dep't of Fam. & Protective Servs., No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.-Austin Feb. 4, 2020, no pet.) (mem. op.) (quoting Tex. Fam. Code § 161.001(b)(1)(E)). The factfinder may consider the parent's conduct before and after the child was born and may infer that a parent's absence from the child's life endangers the child's emotional well-being." Id. (citing In re M.D.M., 579 S.W.3d at 765).
A parent's conduct that subjects a child to a life of uncertainty and instability endangers a child's physical and emotional well-being. A.C. v. Texas Dep't of Fam. & Protective Servs., 577 S.W.3d 689, 699 (Tex. App.-Austin 2019, pet. denied); In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied); see In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.-Fort Worth 2011, pet. denied) (stating that stability and permanence are paramount in upbringing of children).
Further, "[a] parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct." In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.-Dallas 2019, pet. denied) (evidence of parent's drug use or that parent allowed child to be around drug user may show "voluntary, deliberate, and conscious course of conduct" that endangers child); A.C., 577 S.W.3d at 699 ("A parent's illegal drug use may constitute endangerment under subsection (E)."). Indeed, a factfinder "is entitled to give 'great weight' to a parent's drug-related conduct, as it is considered a 'significant factor' supporting termination." Id.; see In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). A parent's conduct that occurs before the person's children are born can be a relevant factor in establishing the endangering course of conduct required under subsection (E). See In re J.O.A., 283 S.W.3d at 345 (holding that parent's history of "irresponsible choices" is probative evidence that parent has engaged in endangering conduct); see also D.H. v. Texas Dep't of Fam. & Protective Servs., 652 S.W.3d 54, 62 (Tex. App.-Austin 2021, no pet.) ("this and numerous other courts of appeals have recognized that a parent's decision to use illegal drugs while the termination suit is pending, and the parent is at risk of losing her child, may support a finding of endangering conduct under subsection (E).").
Evidence at trial showed that Mother has seven children and does not have custody of any of them. While pregnant with Mara, Mother did not seek any prenatal care. She missed almost all of her mandated drug tests for the first year of this case. See D.T. v. Texas Dep't of Fam. & Protective Servs., No. 03-18-0070-CV, 2019 WL 1526429, at *4 (Tex. App.-Austin Apr. 9, 2019, no pet.) (mem. op.) (stating that missed drug tests can be presumed to be positive tests). In December 2022, Mother entered and completed rehabilitation, and afterwards became generally compliant with her service plan's required drug testing, but she tested positive for a significantly high concentration of methamphetamine shortly before trial. In addition, Mother continued to see Father off and on throughout the majority of the case despite Father's own methamphetamine use. During the first day of trial in April 2023, however, Mother expressed a desire to maintain her sobriety in an attempt to have her children returned to her care. Mother testified she had been off of drugs but did not regularly attend Narcotics Anonymous meetings and did not have a sponsor. By the time of the second day of trial in May, Mother testified that she was working with an individual counselor on her sobriety plan. Despite her steps toward sobriety, Calamateo testified the Department was not confident that Mother could maintain her sobriety for the next several years until her children reached adulthood because Mother has suffered from methamphetamine addiction on and off for the last two decades and had never made any meaningful attempt to maintain her sobriety until now.
In response to the Department's evidence on this point, Mother argues that Calamateo agreed Mother had made a good faith effort to comply with her service plan since attending rehabilitation-by the end of the trial, Mother was in compliance with her service plan, she had been drug testing, was still employed cleaning houses, and had a safe home for the children. The trial court heard the testimony of various witnesses and was entrusted with weighing their credibility, and we cannot second-guess those decisions. See In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (holding that appellate courts must defer to trial court's factual determinations, even in parental termination cases). Moreover, "a trial court is not bound to accept the truth or accuracy of a parent's testimony, either as to past actions or future intentions." In re D.M., 452 S.W.3d 462, 472 (Tex. App.-San Antonio 2014, no pet.). Furthermore, "[e]vidence of a recent improvement does not absolve a parent of a history of irresponsible choices." In re A.M., 385 S.W.3d 74, 83 (Tex. App.-Waco 2012, pet. denied).
Based on the record and the deference we must pay to the factfinder's determinations related to credibility, the trial court could have found by clear and convincing evidence that Mother had endangered Dan and Mara-both by her course of conduct and by placing them in an environment that threatened their well-being: continuing to use methamphetamine during the pendency of the case, having struggled with substance abuse issues for the last 20 years, surrounding herself with others who engage in substance abuse, and having a history of endangerment concerns regarding her five other children. See e.g. In re A.T., 406 S.W.3d 365, 371 (Tex. App.-Dallas 2013, pet. denied) (holding that unsanitary conditions may qualify as an environment that endangers the physical or emotional well-being of a child), E.G. v. Texas Dep't of Fam. & Protective Servs., No. 02-22-00469-CV, 2022 WL 17970222, at *8 (Tex. App.-Austin Dec. 28, 2022, no pet.) (mem. op.) ("Evidence of a parent's drug use, or evidence that another parent allowed a child to be around a parent or other persons using drugs, can support the conclusion that the child's surroundings endanger her physical or emotional well-being under subsection (D).") (quoting In re C.V.-L., 591 S.W. at 751).
The evidence at trial showed that Mother has demonstrated a consistent pattern of neglect and endangerment, as evidenced by her past conduct. See In re E.W., No. 10-16-00132-CV, 2017 WL 4079713, at *6 (Tex. App.-Waco Sept. 13, 2017, no pet.) (mem. op.) ("[E]vidence of past misconduct or neglect can be used to measure a parent's future conduct."). Thus, we hold that the evidence is both legally and factually sufficient to support the trial court's findings of statutory grounds under subsections (D) and (E). Because we have upheld the trial court's endangerment findings, we need not consider Mother's issues related to subsections (O) and (P). See Spurck v. Texas Dep't of Fam. & Protective Servs., 396 S.W.3d 205, 222 (Tex. App.-Austin 2013, no pet.); see also In re N.G., 577 S.W.3d at 237 n.1. We overrule Mother's first and second issues.
Best interest
We review a trial court's best-interest determination in light of the considerations set out in Holley v. Adams, taking into account the child's wishes, their emotional and physical needs now and in the future, present and future emotional or physical danger posed to the child, the parenting skills of those seeking custody, any programs available to assist those seeking custody to promote the child's best interest, plans for the child's future, the stability of the home or proposed placement, conduct by the parent that might show that the parent-child relationship is inappropriate, and any excuses for the parent's conduct. 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors are not exhaustive and need not all be proved, and a lack of evidence about some of the factors does 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." In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The child's need for permanence is the paramount consideration when determining a child's present and future physical and emotional needs. L.R. v. Texas Dep't of Fam. & Protective Servs., No. 03-18-00125-CV, 2018 WL 3059959, at *1 (Tex. App.-Austin June 21, 2018, no pet.) (mem. op.); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.-Houston [14th Dist.] 2012, no pet.). A parent's rights may not be terminated merely because the child might be better off living elsewhere, but the factfinder may consider whether termination and adoption versus an impermanent foster-care arrangement would better serve the child's best interest. See L.R., 2018 WL 3059959, at *1. Although a strong presumption exists that a child's best interest is served by keeping the child with his or her biological parents, that presumption disappears when confronted with evidence to the contrary. See In re A.I.G., 135 S.W.3d 687, 692 (Tex. App.-San Antonio 2003, no pet.). Evidence proving one or more statutory grounds for termination also can be probative evidence that termination is in the best interest of the child. In re C.H., 89 S.W.3d at 28.
Multiple witnesses testified at trial that Dan and Mara were "doing very well" living with Foster Family. Foster Mother testified that Dan and Mara "are part of the family" and she expressed her family's desire to adopt them. Foster Mother stated that Dan was bonded with each member of their family, including her three biological children. Mara is also "doing well" in Foster Family's care. Foster Family have been working with a geneticist in order to better understand Mara's condition and how to provide her appropriate care. They have consistently taken Mara to various doctor's appointments about twice a month for the last eighteen months and have been able to provide Mara with several different types of therapists in order to better treat her physical and developmental disorders. By contrast, while Mother recently began visiting the children regularly and would bring them food and gifts, she never stayed longer than a couple hours each time, and she did not know any details about Mara's birth defect or her required treatments and therapies. In addition, she admitted she was not aware that the children both had heart murmurs. The testimony at trial showed that the Foster Family was providing Dan and Mara a stable, healthy, and loving environment. In addition, Foster Family have expressed their desire to adopt the children, stating they would "gladly" adopt Dan and Mara if Mother's parental rights were terminated. Foster Mother testified that Dan and Mara "are established with us; they're safe; we have a stable environment in which their needs are being met; [Mara] has more complicated and high needs and has a team of support currently helping her be successful." Bilvey also agreed that Foster Family were able to serve the children's emotional, physical, and medical needs. She testified that she has observed the children in Foster Family's home and noted that the children "are obviously very bonded." Bilvey recommended that Mother's parental rights be terminated so that Foster Family may adopt the children. See L.R., 2018 WL 3059959, at *1 ("factfinder can consider that a child's best interest may be served by termination of parental rights so that adoption may occur rather than the impermanent foster-care arrangement that would result if termination were not ordered") (quoting Robert T. v. Texas Dep't of Fam. & Protective Servs., No. 03-12-00061-CV, 2013 WL 812116, at *12 (Tex. App.-Austin Mar. 1, 2013, no pet.) (mem. op.))).
While the trial court heard evidence contrary to the district court's finding that termination of Mother's parental rights was in the children's best interest, including evidence that Mother loved the children and that she eventually complied with court-ordered services in an effort to be reunited with the children, the overwhelming evidence in the record supports the trial court's finding. In addition to the evidence that Mother had a twenty-year struggle with methamphetamine addiction and had other biological children removed from her care due to neglect and that Foster Family loved and intended to adopt the children, as discussed above, there was also evidence presented that the children had been placed with Foster Family continuously for the last eighteen months, that Foster Family's home was the only home the children "had ever known", that Dan was bonded to his Foster Family, and that Foster Family was able to provide Mara with appropriate medical care and therapy for her various medical issues. The Department also presented evidence that, while Mother eventually prepared a safe and suitable home for the children to return to, throughout the case she had evaded the Department's attempts to assess her various residences to assess the safety of the home. In addition, the Department presented evidence that Mother was, or could likely be in the future, in a relationship with Father, who was still regularly using methamphetamine and was noncompliant with any aspect of his individual service plan. Finally, Mother continued to test positive for methamphetamine within a few weeks of the first day of trial, despite previously attending a three-week rehabilitation program.
Considering the totality of the evidence in light of the Holley factors, again giving proper deference to the trial court's determinations of witness credibility and the weight to be given to the evidence, we conclude that the evidence is legally and factually sufficient to support the trial court's finding that termination is in the children's best interest. See, e.g., In re V.A., No. 13-06-00237-CV, 2007 WL 293023, at *5-6 (Tex. App.-Corpus Christi̵-Edinburg Feb. 1, 2007, no pet.) (mem. op.) (considering parent's history of "unstable housing, unstable employment, unstable relationships, mental health issues, and drug and alcohol usage"). Accordingly, we overrule Mother's fifth issue.
Conservatorship determination
In her sixth and final issue, Mother claims the trial court abused its discretion in appointing the Department as the children's permanent managing conservator. See Tex. Fam. Code § 161.207(a) (providing that if the trial court terminates the parent-child relationship with respect to both parents, the Court shall appoint a suitable, competent adult, the Department, or a licensed child-placing agency as managing conservator of the child). Because we have concluded that the evidence was legally and factually sufficient to support the trial court's order termination Mother's parental rights, we do not further address this last issue. Having been divested of her parental rights, Mother does not have standing to challenge the portion of the decree appointing the Department as the managing conservator. See In re J.D.G., 570 S.W.3d 839, 856 (Tex. App.- Houston [1st Dist.] 2018, pet. denied) (explaining that order terminating parent-child relationship divests parent of legal rights and duties with respect to child (citing Tex. Fam. Code § 161.206(b)); see also In re H.M.M., 230 S.W.3d 204, 204-05 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (holding that appellate court lacked jurisdiction to consider mother's appeal of trial court's failure to grant sole custody to her father after it terminated her parental rights). Further, once an appellate court overrules a parent's challenge to an order terminating her parental rights, the trial court's appointment of the Department as sole managing conservator may be considered a "consequence of the termination." In re J.D.G., 570 S.W.3d at 856. We overrule Mother's final issue.
CONCLUSION
Having overruled Mother's challenges to the evidence supporting the trial court's finding of best interest and of statutory grounds under subsections (D) and (E), we affirm the trial court's decree terminating Mother's parental rights to Dan and Mara.
Affirmed.