Opinion
NO. 01-20-00212-CV
08-04-2020
IN THE INTEREST OF E. O., A CHILD
On Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 93697-F
MEMORANDUM OPINION
The trial court terminated the parental rights of M.M. (Mother) to her minor child, E.O. In two issues on appeal, Mother contends that the trial court lacked jurisdiction to render its order of termination and that the evidence was legally and factually insufficient to support the trial court's finding that termination of her parental rights was in E.O.'s best interest.
We affirm.
Background
The Texas Department of Family and Protective Services (DFPS) removed E.O. from Mother's care in October 2016. Mother admitted to abusing drugs including methamphetamine, Xanax, and marijuana, and she acknowledged a pattern of family violence in her dating relationships. E.O., who was twelve at the time, was placed in several placements and eventually was able to live with her aunt and uncle. Mother was put on a court-ordered family service plan requiring, among other things, that she maintain stable employment and housing, complete drug and psychological evaluations, attend various counseling and classes, and remain drug free.
Mother failed to complete her service plan and also continued to abuse drugs, including methamphetamine. At her final termination hearing, held before the associate judge in February and March 2019, Mother acknowledged her drug abuse, stating she had abused methamphetamine and Xanax two or three times a week until the month before trial. She had completed some of the requirements in her family service plan by attending counseling sessions, obtaining a job before the final hearing, and maintaining stable housing in the same apartment for approximately a year. She was also able to have several visits with E.O. that went well. However, she testified that she was not able to take custody of E.O. at the time of the final hearing. She asked instead that the trial court leave her parental rights intact and leave E.O. in her placement with family members.
E.O.'s caseworker, T. Johnson, testified at the final hearing before the associate judge that she had referred Mother for drug testing on approximately 16 or 17 occasions, but Mother had only complied twice. Mother's urine test, completed in November 2018, was negative, as was her urine test in January 2019. Johnson further testified that Mother had not completed her family service plan, and Johnson did not believe that Mother had been diligent in attempting to complete the services. Specifically, Johnson testified that Mother never provided any confirmation of her employment or documentation that she attended the required 12-step programs.
Johnson acknowledged that Mother and E.O. had a "great relationship," and that Mother had visited with E.O. and bought her clothes, books, art supplies, food and other items. Johnson testified that, nevertheless, she believed termination of Mother's parental rights to E.O. was in E.O.'s best interest. She stated that E.O. had "been bounced around and around"—including a psychiatric hospitalization and a stay at an emergency shelter—and deserved permanency. Johnson observed that "the placement that she's at is willing to be [a] long-term placement for her," and Johnson believed that termination of Mother's parental rights was the best way to achieve permanency for E.O.
E.O.'s attorney ad litem also believed that termination was in her best interest, noting that the case had been pending for over two years, but Mother had only recently attempted to complete her services. E.O.'s guardian ad litem testified that she believed E.O.'s best interest would be to remain in her current placement and for Mother's parental rights not to be terminated, "but her possession and access to E.O. to only be supervised by placement and at the agreement of placement." The guardian ad litem testified that she had discussed the potential placements with E.O., that E.O. "had multiple concerns about the placement" proposed by DFPS, and that E.O. "wants to see her mother" and was "very verbal about wanting to see her mother." The guardian ad litem was concerned that E.O. "would become possibly suicidal again or become even more unwilling to stay in her current placement and try to work" or "be blaming the placement for losing her mother, even though that wouldn't be a fair thing to do."
The associate judge made an oral report recommending termination of Mother's parental rights to E.O. Before a final order was entered, Mother filed a notice of appeal and a timely request for a de novo trial before the referring district court judge. Mother subsequently moved to abate the premature notice of appeal in this Court so that the district judge could hold the de novo hearing and render its final order. However, the district judge declined to proceed with the de novo hearing because this Court had not yet ruled on the motion to abate the pending appeal. Instead, the district judge signed a final order of termination without holding the de novo hearing.
After the district judge signed the final order, but before this Court received notice of the final order, we abated the appeal for thirty days so that the district judge could sign a final order. Mother attempted to obtain a setting for her do novo hearing, and she filed a petition for writ of mandamus, asking that we vacate the final order of termination and order the trial court to hold de novo hearing. This Court consolidated Mother's 2019 appeal and mandamus proceeding, reversed the termination order, and remanded the case, ordering the trial court to hold the de novo hearing. In re E.O., Nos. 01-19-00207-CV & 01-19-00371-CV, 2019 WL 4019713, at *2 (Tex. App.—Houston [1st Dist.] Aug. 27, 2019, no pet.) (mem. op.) (observing that referring court errs if it fails to hold properly requested de novo hearing before signing final order of termination). This Court issued its opinion and judgment on August 27, 2019. After the time for filing motions for rehearing or a petition for review had passed, the mandate issued on November 8, 2019.
On February 24, 2020—180 days from the date of this Court's opinion and judgment reversing the termination of Mother's parental rights and remanding the case for a de novo hearing—Mother filed a "Notice of Automatic Dismissal" pursuant to Family Code section 263.401, requesting return of E.O. to Mother's care.
See TEX. FAM. CODE § 263.401(a) (providing that, "unless the court has commenced the trial on the merits or granted an extension" by "the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator," court's jurisdiction is terminated and suit is automatically dismissed without court order).
The trial court held a hearing on February 27, 2020. The trial court determined that it retained jurisdiction over the case and denied mother's request for return of the child. Also on February 27, 2020, the trial court conducted the ordered de novo hearing. At this hearing, DFPS asked the trial court to consider the transcript of the trial before the associate judge. DFPS also presented Johnson's testimony regarding events that had occurred while the case was pending on appeal. Johnson testified that DFPS continued to offer Mother services in the form of substance abuse classes and random drug testing. Johnson testified that, out of the five or six drug tests that DFPS requested Mother take, she only appeared for one of them. This gave Johnson cause for concern. She also testified that, although DFPS continued to provide counseling to Mother for substance abuse, Mother failed to comply with her counselor's recommendation that Mother seek further substance abuse treatment. Johnson also continued to express concern over Mother's living arrangements due to the presence of "other men" at the residence.
Johnson testified at the de novo hearing that she still believed termination of Mother's parental rights was in E.O.'s best interest. She stated that Mother "had years" to address her drug problem and become a stable parent, but she had failed to do so. Johnson testified that E.O., who was fourteen years old by the time of the de novo hearing, "deserves permanency" and cannot "keep waiting for her mom to decide to get it together."
Johnson also testified that E.O. had demonstrated some difficult behaviors, prompting several more changes to her placements. She was no longer in the relative placement that DFPS identified in the final hearing in 2019. She had instead been moved to an emergency shelter, and from the emergency shelter to a foster home and then to two different residential treatment centers. Johnson testified that E.O. also had been hospitalized approximately ten times in the year between February 2019 and February 2020. Mother continued visitations with E.O., and Johnson testified that her visits were appropriate and that E.O. was bonded with her Mother. Johnson agreed that Mother had been "the person that's been consistent for [E.O.] due to all of the different placements and hospitalizations."
Johnson testified that DFPS's goal was to find a long-term placement for E.O. They were working toward that goal while E.O. was in the residential treatment center, stating, "[S]he's in a psychiatric treatment program to get her level of care down, so that a foster home can be found." Johnson did not have a time frame for this process because it depended on how successful E.O. was in the psychiatric treatment program. Mother's attorney questioned Johnson about the likelihood of finding an adoptive placement for E.O., and Johnson testified that previous efforts had been hampered because E.O. "still knew her mother's rights were intact."
DFPS presented additional evidence that Mother had been undermining DFPS efforts to care for E.O. DFPS introduced a transcript of a conversation between Mother and E.O. that occurred over Facebook Messenger, after E.O. had somehow obtained a "secret phone." Mother told E.O., "Listen to me, baby. You CANNOT trust these people, not even your lawyer. They act like they're your friend so you'll talk to them and they take what [you] say and use it against us." She also told E.O., "[W]hen they talk to [you], just say [you] want to be with me. Don't say anything that they could take wrong or confide in them in any way," and "I want you to every time it's brought up pitch a fit saying you want to be with me."
Mother also testified at the de novo hearing. She acknowledged that she had continued to abuse methamphetamine at times even after the associate judge had terminated her parental rights. She testified that she was "working on" addressing the problems that had resulted in E.O. coming into DFPS's care, including by "restarting" her attendance at 12-step meetings. Mother further testified that she told E.O. she could not trust the other adults assigned to her case because Mother believed that E.O.'s attorney was not adequately advocating for E.O.'s best interest, and Mother believed she was giving E.O. advice about how to advocate for herself. When asked what she had done to prepare for E.O. to return to living with her, Mother testified,
I have a place for her, you know, to—for her own place to sleep, to—and I'm getting a—I don't know exactly what you mean, other than—I mean, I can—anything that she needs, I—I can do it as it comes. I don't understand exactly what you're trying to ask. I'm sorry. Other than what I've already done, like getting myself clean and getting rid of people that I don't need in my life.
The trial court also admitted into evidence at the de novo hearing a transcript of the interview between the associate judge and E.O. Among other things discussed, E.O. told the associate judge that she had been molested by their landlord, who was also Mother's boyfriend's dad, when she was nine years old and still living with her mother. E.O. stated that she told her mother what had happened, but Mother did not do anything about it. At the de novo hearing, DFPS asked Mother why she did not report the assault or seek treatment for E.O., and Mother stated that "[i]t didn't seem traumatic to her," but Mother also testified that she never allowed that person around E.O. again.
E.O.'s guardian ad litem also stated during the de novo hearing that she continued to believe that termination of Mothers rights was not in E.O.'s best interest. She stated that E.O. had been moved through numerous placements that kept "breaking down" because of E.O.'s behavior. The guardian ad litem stated that, every time she spoke to E.O. about it, E.O. expressed a strong desire to remain in contact with her mother, and the guardian ad litem feared that E.O. would self-harm if her relationship with her mother was terminated. The guardian still did not think that Mother had done what was necessary to be a safe placement for E.O., so she asked that the trial court name DFPS as conservator and allow continued visitation between Mother and E.O.
The trial court considered the evidence presented at the de novo hearing, as well as the transcript and evidence from the final hearing before the associate judge. The trial court again found grounds to support termination of Mother's parental rights under Family Code subsections 161.001(b)(1)(E) and (O) and that termination was in E.O.'s best interest. The trial court rendered its "Order of Termination After De Novo [Hearing]," terminating Mother's parental rights to E.O., and this appeal followed.
Trial Court's Jurisdiction
In her first issue, mother argues that the trial court's termination order is void for want of jurisdiction because the trial court did not hold the de novo hearing within the time required to extend its jurisdiction under Family Code section 263.401(b-1).
A. Standard of Review
Whether a court has subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); In re T.B., 497 S.W.3d 640, 644 (Tex. App.—Fort Worth 2016, pet. denied). When a trial court's void judgment is appealed, we lack jurisdiction to address the merits of the appeal and have jurisdiction only to declare the judgment void and dismiss the underlying case. In re G.X.H., 584 S.W.3d 543, 556 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (citing, e.g., TEX. R. APP. P. 43.2(e); Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012)).
Mother's argument requires us to construe certain sections of the Family Code. Statutory construction is a question of law reviewed de novo on appeal. In re Lee, 411 S.W.3d 445, 450 (Tex. 2013) (orig. proceeding). When interpreting statutes, we give effect to the Legislature's intent, which is best reflected in the language of the statute itself. See id. at 451; In re M.C.C., 187 S.W.3d 383, 384 (Tex. 2006). In construing statutes, we consider "the object sought to be attained" and presume "a just and reasonable result is intended" by our lawmakers. See TEX. GOV'T CODE §§ 311.021(3), .023(1).
B. Analysis
The Family Code sets out a statutory framework for ensuring that termination proceedings are handled in an expedited manner. See, e.g., Tex. Dep't of Fam. & Protective Servs. v. Dickensheets, 274 S.W.3d 150, 158-59 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Thus, the Family Code requires that the court commence the trial on the merits or grant an extension by the first Monday after the first anniversary of the date the court rendered a temporary order appointing DFPS as temporary managing conservator. TEX. FAM. CODE § 263.401(a). If the trial court fails to commence the trial on time, "the court's jurisdiction over the suit . . . is terminated and the suit is automatically dismissed without a court order." Id.; In re G.X.H., 584 S.W.3d at 546 ("[T]he trial court in a parental termination case automatically loses jurisdiction if the trial on the merits does not begin by the deadline imposed by section 263.401(a) of the Texas Family Code.").
Section 263.401 allows a trial court to retain jurisdiction over a termination suit beyond section 263.401(a)'s general deadline. Relevant here, subsection 263.401(b-1) allows an extension after the initial trial has commenced if the court has granted a motion for new trial or mistrial or the case has been remanded from an appellate court. Id. § 263.401(b-1). Section 263.401(b-1) provides:
(b-1) If, after commencement of the initial trial on the merits within the time required by Subsection (a) or (b), the court grants a motion for a new trial or mistrial, or the case is remanded to the court by an appellate court following an appeal of the court's final order, the court shall retain the suit on the court's docket and render an order in which the court:
(1) schedules a new date on which the suit will be automatically dismissed if the new trial has not commenced, which must be a date not later than the 180th day after the date on which:
(A) the motion for a new trial or mistrial is granted; or
(B) the appellate court remanded the case;
(2) makes further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit; and
Id.(3) sets the new trial on the merits for a date not later than the date specified under Subdivision (1).
Mother argues that the trial court's "Order for Termination after De Novo" is void based on the Family Code's automatic dismissal requirement. She argues that because this case was remanded as contemplated by section 263.401(b-1), and the trial court did not commence the de novo hearing within 180 days of the date of this Court's opinion and judgment, the trial court lost jurisdiction, and the case was automatically dismissed pursuant these statutory provisions.
DFPS, on the other hand, asserts that the original trial commenced in a timely manner, so dismissal is not appropriate under section 263.401(a). DFPS further asserts that section 263.401(b-1) does not apply to this case because the case was remanded for a de novo hearing, not a new trial. See In re A.L.M.-F., 593 S.W.3d 271, 277-78 (Tex. 2019) (discussing distinction between de novo trial and de novo hearing as contemplated by Family Code section 201.015, which provides for de novo hearing of associate judge's decision by referring court, and stating that "the term 'de novo hearing' . . . cannot reasonably be equated to a 'trial de novo'"). And DFPS asserts that, even if section 263.401(b-1) applies here, the trial court held the de novo hearing within 180 days of the date of this Court's mandate, and so it complied with the extended deadline provided for by that section.
We agree with DFPS that, even if section 263.401(b-1) applies to this case—an issue we need not decide to resolve this appeal—the trial court held the de novo hearing within the required timeframe. Mother contends that any 180-day dismissal deadline should be calculated from the date of this Court's opinion and judgment, while DFPS asserts that the date is calculated from the date our mandate issued. We agree with DFPS.
The Supreme Court of Texas adopted Rule of Appellate Procedure 28.4 to implement procedures for the accelerated disposition of appeals from final termination orders. See TEX. FAM. CODE § 263.405(c) ("The supreme court shall adopt rules accelerating the disposition by the appellate court and the supreme court of an appeal of a final order granting termination of the parent-child relationship rendered under this subchapter."); TEX. R. APP. P. 28.4.
Rule 28.4 provides generally that "[a]ppeals in parental termination and child protection cases are governed by the rules of appellate procedure for accelerated appeals, except as otherwise provided in Rule 28.4." TEX. R. APP. P. 28.4(a)(1). The Rule further provides specific requirements for the filing of the appellate record in these cases, and it contains a provision controlling "remand for a new trial": "If the judgment of the appellate court reverses and remands a parental termination or child protection case for a new trial, the judgment must instruct the trial court to commence the new trial no later than 180 days after the mandate is issued by the appellate court." TEX. R. APP. P. 28.4(c) (emphasis added); see also id. R. 18.6 ("The appellate court's judgment on an appeal from an interlocutory order takes effect when the mandate is issued."). Courts have consistently applied this rule in the context of deadlines for further proceedings in the trial court upon remand. See, e.g., E.E. v. Tex. Dep't of Family & Protective Servs., 598 S.W.3d 389, 407 (Tex. App.—Austin 2020, no pet.) (citing Rule 28.4(c) and section 263.401(b-1) in instructing "the district court to commence any new trial on remand no later than 180 days after the mandate is issued by this Court"); In re T.J., No. 11-19-00259-CV, 2020 WL 746765, at *5 (Tex. App.—Eastland Feb. 13, 2020, no pet.) (mem. op.) ("Any proceeding on remand must be commenced within 180 days of this court's mandate."); In re J.F., 589 S.W.3d 325, 336 (Tex. App.—Amarillo 2019, no pet.) (reversing order of termination and remanding for further proceedings, stating that "[a]ny retrial of this case must commence no later than 180 days after this court issues mandate").
Mother cites Edwards Aquifer Authority v. Chemical Lime, Ltd. in arguing that, through its judgment and mandate, this Court expressly stated the time for its decision to take effect and that statement should control over other more general provisions. See 291 S.W.3d 392, 393 (Tex. 2009) (expressly declining to answer whether appellate court judgments generally take effect upon rendition of judgment or issuance of mandate and holding, "[I]f an appellate court expressly states the time for its decision to take effect, that statement controls"). However, the standard language identified by Mother—the general statement in this Court's judgment and mandate that "[t]he Court orders that this decision be certified below for observance. Judgment rendered August 27, 2019"—is not an express statement of the time for our decision to take effect. Nothing in this Court's previous opinion and judgment provided an express deadline for implementing our judgment or holding the de novo hearing, stating instead only that we "reverse the part of the final order terminating [Mother's] parental rights and remand this case for a de novo hearing." 2019 WL 4019713, at *2.
Mother also cites Justice Brister's concurrence in Edwards Aquifer Authority v. Chemical Lime, Ltd., in which he opined that, as a general rule, court decisions should take effect on the date of the judgment. 291 S.W.3d 392, 406 (Tex. 2009) (Brister, J., concurring). The reasoning from Justice Brister's opinion is not applicable here, however, where a Rule of Appellate Procedure provides that the deadline for conducting further proceedings on remand runs from the issuance of the mandate. See id. (recognizing that courts or legislature have dictated, in certain circumstances, different timeline for decisions to take effect and proposing "general rule" that may be altered in special cases). Moreover, Mother ignores the concurring opinion of Justice Willet in the same case, in which he opines that "as a general matter the better default date [for a decision to take effect] is the mandate, the formal order declaring our review complete, our decision final, and our judgment enforceable." Id. at 412-13 (Willet, J., concurring); see also In re Grossnickle, 115 S.W.3d 238, 243 (Tex. App.—Texarkana 2003, no pet.) ("The appellate court's mandate is [the] 'official notice of the action of the appellate court, directed to the court below, advising it of the action of the appellate court and directing it to have its judgment duly recognized, obeyed, and executed."); Harris Cty. Children's Protective Servs. v. Olvera, 971 S.W.2d 172, 175 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) ("When an appellate court affirms a judgment, upon issuance of its mandate the trial court has the duty to give effect to the judgment by executing proper orders.").
This Court's mandate issued November 8, 2019, and the trial court held the ordered de novo hearing 111 days later, on February 27, 2020. Therefore, the de novo hearing was held within 180 days of the date our mandate issued. See TEX. R. APP. P. 28.4(c); TEX. FAM. CODE § 263.401(b-1). We thus conclude that, even if section 263.401(b-1) applies, the trial court retained jurisdiction over the case at the time it rendered its order of termination.
We overrule Mother's first issue.
Sufficiency of Best-Interest Finding
In her second issue, Mother argues that the evidence was legally and factually insufficient to support the trial court's finding that termination of her parental rights was in E.O.'s best interest.
A. Standard of Review
In a case to terminate parental rights under Family Code section 161.001, DFPS must establish, by clear and convincing evidence, that (1) the parent committed one or more of the enumerated acts or omissions justifying termination and (2) termination is in the best interest of the child. 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 J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Only one predicate finding under section 161.001(b)(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
When reviewing the legal sufficiency of the evidence in a case involving termination of parental rights, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction that there existed grounds for termination under section 161.001(b)(1) and that termination was in the best interest of the child. See TEX. FAM. CODE § 161.001(b)(1), (2); In re J.F.C., 96 S.W.3d at 266. In doing so, we examine the evidence in the light most favorable to the finding and assume the "factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. We must also disregard all evidence that the factfinder could have reasonably disbelieved or found to be incredible. Id.
When conducting a factual sufficiency review, we consider and weigh all the evidence including disputed or conflicting evidence. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. (quoting In re J.F.C., 96 S.W.3d at 266). We give due deference to the factfinder's findings, and we cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
Mother does not challenge the trial court's findings that she had engaged in endangering conduct or knowingly placed E.O. with persons who engaged in endangering conduct under subsection 161.001(b)(1)(E), or that she had failed to comply with the provisions of her court-ordered family service plan under subsection 161.001(b)(1)(O). See TEX. FAM. CODE § 161.001(b)(1)(E), (O). Rather, Mother argues that the evidence was insufficient to support the trial court's finding that termination of her parental rights was in E.O.'s best interest. See id. § 161.001(b)(2).
There is a strong presumption that the best interest of a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement of the child in a safe environment is also presumed to be in the child's best interest. TEX. FAM. CODE § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the sufficiency of the evidence to support the best interest finding: the desires of the child; the present and future physical and emotional needs of the child; the present and future emotional and physical danger to the child; the parental abilities of the persons seeking custody; the programs available to assist those persons seeking custody in promoting the best interest of the child; the plans for the child by the individuals or agency seeking custody; the stability of the home or proposed placement; acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and any excuse for the parent's acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list of factors is not exhaustive, however, and evidence is not required on all the factors to support a finding that terminating a parent's rights is in the child's best interest. Id. at 372; In re D.R.A., 374 S.W.3d at 533.
In addition, the Family Code sets out factors to be considered in evaluating the parent's willingness and ability to provide the child with a safe environment, including: the child's age and physical and mental vulnerabilities; 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; 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; the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; whether the child's family demonstrates adequate parenting skills, including providing the child with minimally adequate health and nutritional care, a safe physical home environment, and an understanding of the child's needs and capabilities; and whether an adequate social support system consisting of an extended family and friends is available to the child. TEX. FAM. CODE § 263.307(b); In re R.R., 209 S.W.3d at 116.
Courts may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence when conducting the best interest analysis. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). Evidence supporting termination under one of the predicate grounds listed in subsection 161.001(b)(1) can also be considered in support of a finding that termination is in the best interest of the child. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be probative of both section 161.001(b)(1) grounds and best interest). A parent's past conduct is probative of her future conduct when evaluating the child's best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.); Jordan v. Dossey, 325 S.W.3d 700, 724 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). A factfinder may also infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent when assessing the best interest of the child. In re D.M., 452 S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.) (citing In re B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth 2004, pet. denied)); Jordan, 325 S.W.3d at 724.
B. Best Interest Analysis
Multiple factors support the trial court's finding that termination of Mother's parental rights was in the E.O.'s best interest.
The evidence demonstrated that Mother's history of drug use endangered E.O. The child was removed from Mother's care because of her drug use. There was also evidence that Mother had failed to protect E.O. in the past. E.O. told the associate judge that she had been molested when she was nine years old, she told her mother, and nothing happened.
Even after E.O. was removed from her care, Mother, by her own admission, continued to abuse drugs. At the trial before the associate judge, E.O. acknowledged abusing methamphetamine and Xanax two to three times per week while the case was pending. And, even until just a few months before the de novo hearing, Mother continued to abuse methamphetamine. In addition to acknowledging her continued drug abuse, Mother also refused to appear for numerous drug tests during the pendency of the case. See In re S.R., 452 S.W.3d 351, 361-62 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (parent's continued drug use after child's removal supports finding of endangerment); In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding that "pattern of illegal drug use suggests the mother was not willing and able to provide the child with a safe environment—a primary consideration in determining the child's best interest" and weighs in favor of conclusion that termination of parental rights is in child's best interest); In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (holding that "[a] factfinder reasonably could infer that [a parent's] failure to submit to the court-ordered drug screening indicated she was avoiding testing because she was using drugs").
Furthermore, Mother did not demonstrate a willingness or ability to complete her services or effect positive environmental and personal changes within a reasonable time. See In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013) (holding that findings that parent failed to complete court-ordered services can support best interest finding); In re E.A.F., 424 S.W.3d 742, 752 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (stating that, in assessing best interest, courts may appropriately consider whether parent complied with court-ordered family service plan for reunification with child). Particularly relevant here, the evidence at the de novo hearing demonstrated that Mother had failed to follow all the drug treatment recommendations and failed to remain drug free during the pendency of the case.
Even considering evidence that Mother had made some progress toward getting clean and attending a 12-step program, we conclude that the evidence supported the conclusion that E.O. would continue to be in danger due to the instability caused by Mother's drug use and that her relationship with E.O. was not appropriate. See TEX. FAM. CODE § 263.307(b)(8) (providing that history of substance abuse is relevant to determining child's best interest); In re D.R.A., 374 S.W.3d at 536 (considering failed drug test, among other factors, as evidence that parent-child relationship was not appropriate).
E.O.'s age, physical and mental vulnerabilities, and future needs, as well as the frequency and nature of E.O.'s placement and the respective plans for her by DFPS and Mother, weigh in favor of termination. E.O. was fourteen at the time of the de novo hearing. The record reflects that she experienced emotional and behavioral disturbances necessitating care and protection from a responsible adult. She required specialized care through a residential treatment center where she was receiving psychiatric services. Nothing in the record suggests that Mother was capable of addressing these needs. There was no evidence that Mother could provide a stable home, that she had adequate parenting skills, or the ability to provide adequate care for E.O.'s behavioral and psychological issues. See In re C.A.J., 122 S.W.3d 888, 893-94 (Tex. App.—Fort Worth 2003, no pet.) (stating that courts may consider parent's poor judgment and inability to provide adequate care when determining best interest).
Mother asserts that E.O. repeatedly expressed her desire to live with Mother. She points to the guardian ad litem's opinion that E.O. would react badly to having Mother's rights terminated. She also points to Johnson's testimony that Mother routinely visited E.O. and brought her clothes and supplies, and was a consistent presence in E.O.'s life even as she was moved to various placements and treatment centers. She also points to evidence that E.O. and Mother had a good relationship and that E.O. enjoyed visits with Mother. However, evidence that E.O. loves Mother and enjoyed their visits does not outweigh the evidence of Mother's endangering conduct and unsuitability as a parent. In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014, pet. denied) (holding that child's love for parent and enjoyment of visits is "only marginally relevant" to best-interest determination); see also W.D. v. Tex. Dep't of Family & Protective Servs., No. 03-14-00581-CV, 2015 WL 513267, at *6 (Tex. App.-Austin Feb. 5, 2015, no pet.) (mem. op.) (stating that even when child's desires arguably weigh in favor of allowing parent to retain her parental rights, factfinder may still reasonably conclude termination was in child's best interest when record demonstrated that parent could not provide for child's safety, would not take advantage of programs designed to help her, lacked appropriate parenting skills, and had no excuse for her prior acts and omissions).
This is especially true here, where there was evidence that Mother had undermined DFPS's efforts to care for E.O. Johnson testified regarding E.O.'s need for stability and permanency, and she testified that Mother's continued parental rights had been an impediment to DFPS's ability to find a suitable placement for E.O. DFPS also presented evidence that Mother communicated with E.O. on a "secret phone," told E.O. that she could not trust her caseworker or attorney ad litem, and encouraged E.O. to "throw a fit" if they suggested terminating Mother's parental rights. The trial court found these facts illustrated poor judgment on Mother's part and undermined her claim that continued contact with E.O. was healthy for the child. See In re H.R.M., 209 S.W.3d at 108 (holding that, in reviewing evidence, we must give due deference to factfinder's findings and must avoid substituting our judgment for that of factfinder).
Mother expressed no plan or ability to care for E.O. At the time of the final hearing before the associate judge, she testified that she wanted E.O. to stay in DFPS custody and be cared for by family members. Approximately a year later, at the time of the de novo hearing, Mother had made almost no changes to her living situation. She suggested that she had a place for E.O. to sleep—presumably in the house that Mother shared with two non-relative males—and said she could provide for E.O.'s other needs as they came up. She had not made any other efforts to prepare for E.O. to come live with her.
Mother criticizes DFPS's plans for E.O., noting that E.O. had been moved to many different placements during the pendency of the case and that E.O. had numerous psychiatric hospitalizations. She points out that DFPS's plan—to allow E.O. to complete her psychiatric treatment and then find a permanent adoptive placement that would provide for her needs—is far from certain or permanent.
In considering these arguments, we are mindful of the standard of review. As the supreme court held:
We emphasize that, as appellate courts apply the standard we announce today, they must maintain the respective constitutional roles of juries and appellate courts. An appellate court's review must not be so rigorous that the only factfindings that could withstand review are those
established beyond a reasonable doubt. See Santosky [v. Kramer], 455 U.S. [745,] 767-69 [(1982)] (holding that "beyond reasonable doubt" standard not required in termination cases). While parental rights are of constitutional magnitude, they are not absolute. Just as it is imperative for courts to recognize the constitutional underpinnings of the parent-child relationship, it is also essential that emotional and physical interests of the child not be sacrificed merely to preserve that right.In re C.H., 89 S.W.3d at 26.
The evidence supports a conclusion that psychiatric care was necessary for E.O. and that she was making progress. Johnson testified that terminating Mother's parental rights would facilitate a search for a permanent placement and provide more options for E.O.'s future care. The trial court also weighed evidence, discussed above, indicating that, despite Mother's inability to provide a stable home for E.O., Mother nevertheless interfered with DFPS's previous attempts to find a suitable placement for E.O. See In re E.D., 419 S.W.3d at 620 (holding that courts may consider circumstantial evidence, subjective factors, and totality of evidence as well as direct evidence when conducting its best interest analysis).
We also observe that, even if the trial court later determines that E.O.'s current placement is unsuitable, this consideration does not outweigh the testimony and other evidence indicating that the potential to one day have a permanent, stable home is in her best interest and that Mother cannot supply such a home. The "lack of evidence about definitive plans for permanent placement and adoption cannot be the dispositive factor." In re C.H., 89 S.W.3d at 28. Instead, the relevant inquiry is whether the factfinder could reasonably form a firm belief or conviction that termination of the parent's rights was in the child's best interest "even if the agency is unable to identify with precision the child's future home environment." Id.
Viewing the entire record in the light most favorable to the trial court's finding, the evidence supports a firm belief or conviction that termination of Mother's parental rights was in E.O.'s best interest. See In re J.O.A., 283 S.W.3d at 344; see also TEX. FAM. CODE § 263.307(b) (setting out nonexclusive factors to consider in making best-interest determination). Thus, the evidence is legally sufficient. And considering all the evidence, including disputed or conflicting evidence, we conclude that the trial court could have formed a firm belief or conviction that termination of Mother's parental rights was in E.O.'s best interest, such that the evidence is factually sufficient. See In re J.O.A., 283 S.W.3d at 345; In re H.R.M., 209 S.W.3d at 108.
We overrule Mother's second issue.
Conclusion
We affirm the trial court's order terminating Mother's parental rights to E.O.
Richard Hightower
Justice Panel consists of Chief Justice Radack and Justices Goodman and Hightower. Goodman, J., dissenting without opinion.