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finding ICWA active-efforts burden satisfied because "the [DFPS] had appropriately engaged [the parent] with services but the Department's efforts had failed"
Summary of this case from Brackeen v. HaalandOpinion
No. 07-18-00052-CV
07-19-2018
IN the INTEREST OF J.L.C., a Child
Appellants, C.C. (father) and B.G. (mother), appeal the trial court’s order terminating their parental rights to J.L.C., their one-year old son. C.C. asserts that the evidence is legally and factually insufficient to support the trial court’s findings that (1) he committed any act proscribed by section 161.001 of the Texas Family Code or met the requirements of the Indian Child Welfare Act (ICWA) providing for termination of his parental rights and (2) that termination was in J.L.C.’s best interest. In a single issue, B.G. asserts the evidence is factually insufficient to support the trial court’s finding under the Texas Family Code that it was in J.L.C.’s best interest to terminate her parental rights. We affirm the judgment of the trial court.
To protect the privacy of the parties involved, we refer to them by their initials. See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2017). See also Tex. R. App. P. 9.8(b).
See Tex. Family Code Ann. §§ 161.001(b)(1), 263.307 (West Supp. 2017); 25 U.S.C. §§ 1901 -1963 (1978) (the Indian Child Welfare Act or ICWA).
BACKGROUND
In February 2017, the Texas Department of Family and Protective Services (Department) sought J.L.C.’s removal from B.G.’s custody after receiving a report that she tested positive for methamphetamine at the time of his birth. During the Department’s investigation, B.G. admitted she had used methamphetamine during her pregnancy. She also indicated that J.L.C.’s father, C.C., was a current methamphetamine user who would be incarcerated within days. The Department’s original petition sought the termination of their parental rights under state law. See TEX. FAMILY CODE ANN. § 161.001(b)(1)(D), (E), (K), (N), (O), (P), (R) (West Supp. 2017).
Throughout the remainder of this opinion, citations to the Texas Family Code will simply be as "section ____" or "§ ____."
In its temporary order following an adversary hearing, the trial court required B.G. and C.C. to comply with a service plan including any amendments prior to the return of their child. The order required that C.C. and B.G. undergo a substance abuse assessment, substance abuse treatment including following all recommendations, drug and alcohol testing, a psychological evaluation, a psycho-social assessment, psychological or psychiatric examination including following all recommendations, individual counseling, and parenting classes. C.C. and B.G. were also required to maintain regular contact with the Department’s caseworker, submit proof of employment, secure suitable housing for J.L.C., and provide sufficient legal financial resources to care for J.L.C.
In March 2017, the Department’s petition was amended to include requirements for termination under the ICWA. Notice was served to the proper parties pursuant to 25 U.S.C. § 1912(a) (1978). The Department requested a hearing for the purpose of making necessary findings; id. at § 1912(e), and it requested that the trial court find by evidence beyond a reasonable doubt that (1) the Department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of an Indian family and those efforts proved unsuccessful; and (2) the evidence, including testimony of a qualified expert witness, demonstrated that continued custody of J.L.C. by C.C. and/or B.G. was likely to result in serious emotional or physical damage to J.L.C. Id. at § 1912(d), (f). Thereafter, in June 2017, the Choctaw Nation of Oklahoma filed its Notice of Intervention.
FINAL HEARING
In February 2018, a final hearing was held. The Department’s evidence established B.G. was currently on probation that could result in her imprisonment. When J.L.C. was born, she had been using methamphetamine for three years and had continued using throughout her pregnancy. She did not tell her prenatal physician or the hospital staff that she used drugs. She knew she should not use drugs while pregnant, but she was addicted. At the time of his birth, she, J.L.C., and C.C. all tested positive for methamphetamine. Under B.G.’s service plan, she was required to avoid criminal activity and illegal drug use.
Under the stress of losing her visitation privileges, B.G. testified she turned to drugs rather than her services. In March 2017, B.G. again tested positive for drug use and the court ordered that her visitations be suspended until she could pass her drug tests with two negative hair follicle screens. B.G. completed an outpatient drug treatment program in August but relapsed a month or so later. She lost her job in June 2017 and was evicted from her home in January 2018. At the time of the hearing in February 2018, she had only been drug-free since December 2017. She had, however, filed an application for public housing. According to her testimony, the housing application would take approximately one to two months before housing would be available. Although she had been unemployed since June 2017, she did not begin to look for steady employment until January 2018 and had been interviewed three times for possible employment. She testified that, at the time of the final hearing, she did not have a safe and stable home for J.L.C.
C.C. was incarcerated three days after J.L.C.’s birth for burglary of a building. Prior to his incarceration, C.C. used methamphetamines with B.G. throughout her pregnancy. He thought it was important to care for J.L.C., but he was "far off" in his addiction that began when he was twelve years old. He agreed that he did not provide for the protection and safety of J.L.C. while B.G. was pregnant. At the time of the final hearing, he had served one year of his twelve-year sentence and had recently seen the parole board.
In his parole request, he asked that he not be immediately released but that he be allowed to participate in a six-month drug treatment program before returning home.
While incarcerated, C.C. participated in programs offered at the prison. He attended AA and NA meetings, participated in a parenting program, attended Voyagers (program teaching how to stay drug-free and crime-free when released), and Winner’s Circle (drug treatment program). He kept in communication with the Department through the mail and summarized parenting packages sent to him by the Department each month. He also corresponded with J.L.C.
He testified that if he receives parole and attends drug treatment, he intends to live at home with his mother until he can secure employment and obtain housing. His mother would initially provide financial support for J.L.C. He was aware that his mother’s husband had been in prison six years earlier but was unaware why he had been incarcerated. He agreed that, if he were released, it would be awhile before he would be able to do anything constructive for J.L.C. and candidly admitted that whether he could care for the safety and protection of his son "was something he [had] to prove."
C.C. was aware J.L.C. was living with J.L.C.’s maternal aunt. He conceded that she is providing a better life for J.L.C., loves the child, and is meeting all J.L.C.’s needs. C.C., on the other hand, has two other children, in addition to J.L.C., and does not have custody of either child.
J.L.C.’s caseworker testified that although B.G. did complete some services, she continued to use methamphetamines during the termination proceedings despite having completed outpatient drug therapy. After B.G. tested positive for methamphetamine in March 2017, the caseworker gave her names and numbers of outpatient and inpatient providers of drug treatment. The caseworker also arranged parenting and counseling classes to meet B.G.’s limited means of transportation. Also, in March, the court offered to reinstate visitation if B.G. would provide two negative hair follicle screens. Despite this incentive, she was unable to do so. After undergoing drug treatment, she relapsed again in the fall of 2017. J.L.C.’s caseworker further testified that in her opinion, B.G. was unable to provide J.L.C. with a safe environment due to her methamphetamine addiction and the fact that she had not obtained stable employment or housing to meet J.L.C.’s needs.
She asked that B.G.’s parental rights be terminated because B.G. used drugs before, during, and after J.L.C. was born. In addition, she opined that B.G. effectively abandoned J.L.C., in as much as he had been in conservatorship for six months, while she failed to fully comply with the court-ordered service plan by continuing to use methamphetamine during the termination proceedings.
J.L.C.’s caseworker also recommended that C.C.’s parental rights be terminated. Although he maintained monthly contact with her and she provided him with parenting packets, she testified little had changed. She testified C.C. was serving a twelve-year sentence with only the possibility of parole and had yet to show whether he had any parenting skills or was able to curb his addiction to methamphetamine outside of confinement. On the other hand, J.L.C. (a one-year old) was living with his maternal aunt. He was up-to-date on his medical and dental care, visited other family members, and was developmentally on target. Furthermore, J.L.C.’s maternal aunt wanted to adopt him and raise him with her two other children.
Penny Drennen, a tribal representative and qualified expert witness, was updated by J.L.C.’s caseworker throughout the proceedings on her efforts to obtain compliance with the service plan by C.C. and B.G. In Drennen’s opinion, continued custody of J.L.C. by B.G. and/or C.C. was likely to result in serious emotional or physical damage to J.L.C. She also opined that J.L.C.’s placement with his maternal aunt was the preferred placement and ICWA compliant, i.e., such placement was in J.L.C.’s best interest. She testified that the Department appropriately engaged B.G. and C.C. with services but its efforts had failed, and it was in J.L.C.’s best interest to proceed with termination.
FINAL ORDER
In its Final Order of Termination , the trial court found that the Department had proven by clear and convincing evidence that B.G. had violated section 161.001(b)(1)(D), (E), (N), (O), and (P) and C.C. had violated section 161.001(b)(1)(D) and (E). See § 161.001(b)(1)(D), (E), (N), (O), (P). The trial court also found by clear and convincing evidence that termination of B.G. and C.C.’s parental rights was in J.L.C.’s best interest. In conformance with the ICWA, the trial court found that the evidence including Brennen’s expert testimony established beyond a reasonable doubt that the Department appropriately engaged B.G. and C.C. with services but its efforts failed, and continued custody of J.L.C. by B.G. and/or C.C. was likely to result in serious emotional or physical damage to him. This appeal followed.
INDIAN CHILD WELFARE ACT
The ICWA was enacted in 1978 in response to rising concern "over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes...." Mississippi Band of Choctaw Indians v. Hoyfield , 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed. 2d 29 (1989). Consequently, the ICWA articulates a federal policy that elevates preservation of Indian culture and communities, as follows:
The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture....
25 U.S.C. § 1902 (1978).; See Mississippi Band of Choctaw Indians , 490 U.S. at 36, 109 S.Ct. 1597.
Congress sought to effectuate its policy by establishing procedural and substantive standards in all state child-custody proceedings involving an Indian child. See 25 U.S.C. § 1912(a) (1978) ; Mississippi Band of Choctaw Indians , 490 U.S. at 35, 109 S.Ct. 1597. An "Indian child" includes an unmarried person under the age of eighteen who is a member of an Indian tribe. 25 U.S.C. § 1903(4) (1978). A "child custody proceeding" includes an action resulting in the termination of the parent-child relationship. Id. at § 1903(1)(ii). One of the ICWA’s protective features requires that the Department satisfy a heightened evidentiary standard before the trial court may terminate the relationship between an Indian child and the child’s parent as follows:
No termination of parental rights may be ordered in such a proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including the testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
Id. at § 1912(f). In a Texas termination proceeding where the ICWA is applicable, therefore, the Department must prove grounds for termination under the Texas Family Code by clear and convincing evidence; see §§ 161.001(b)(1), 161.206(a), and grounds for termination under the ICWA beyond a reasonable doubt. 25 U.S.C. § 1912(f) (1978). See In re K.S. , 448 S.W.3d 521, 536-39 (Tex. App.—Tyler 2014, pet. denied). See also In the Interest of G.C. , No. 10-15-00218-CV, 2015 Tex. App. LEXIS 8527, at *2-4 (Tex. App.—Waco 2015, no pet.) (mem. op.). But see In the Interest of W.D.H. , 43 S.W.3d 30, 35-38 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (ICWA termination provisions pre-empt Texas Family Code). Here, the parties do not dispute whether the ICWA applied to the termination proceedings in the trial court.
The trial court found termination of C.C. and B.G.’s parental rights met the requirements of the Texas Family Code and the ICWA. On appeal, neither C.C. nor B.G. assert that the ICWA pre-empts the Texas Family Code. Accordingly, for convenience, we will first consider whether the termination of C.C.’s parental rights met the requirements of state and federal law and then, whether termination of C.C. and B.G.’s parental rights was in J.L.C.’s best interest.
On appeal, B.G. does not challenge the trial court’s determinations that she violated section 161.001(b)(1)(D), (E), (N), (O), and (P) or whether termination of her parental rights was proper under the ICWA.
C.C.'s ISSUES ONE AND TWO
In support of his assertion that the evidence is legally and factually insufficient to support termination under Texas law (issue one, part one), C.C. asserts there is an absence of evidence that he provided B.G. with methamphetamine during her pregnancy, the frequency of use and quantity of drugs consumed by B.G., how many times B.G. used during pregnancy, and that C.C.’s drug use caused harm to J.L.C. In support of his assertion that the evidence was legally and factually insufficient that termination was in J.L.C.’s best interest (issue two), C.C. asserts he had taken several drug treatment and parenting classes while incarcerated and had a concrete plan to care for J.L.C. if he were paroled. In support of his assertion that the evidence is legally and factually insufficient to support termination under the ICWA (issue one, part two), C.C. reiterates his assertions related to issue one, part one.
STANDARD OF REVIEW
The natural right existing between parents and their children is of constitutional dimension. See Santosky v. Kramer , 455 U.S. 745, 758-59, 102 S.Ct. 1388, 71 L.Ed. 2d 599 (1982). See also Holick v. Smith , 685 S.W.2d 18, 20 (Tex. 1985). Consequently, termination proceedings are strictly construed in favor of the parent. In the Interest of E.R. , 385 S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not absolute, and it is essential that the emotional and physical interests of a child not be sacrificed merely to preserve those rights. In the Interest of C.H. , 89 S.W.3d 17, 26 (Tex. 2002). The Due Process Clause of the United States Constitution and section 161.001 require application of the heightened standard of clear and convincing evidence in cases involving involuntary termination of parental rights. See In the Interest of E.N.C. , 384 S.W.3d 796, 802 (Tex. 2012) ; In the Interest of J.F.C. , 96 S.W.3d 256, 263 (Tex. 2002).
In a legal sufficiency challenge, we credit evidence that supports the verdict if reasonable jurors could have done so and disregard contrary evidence unless reasonable jurors could not have done so. In re K.M.L. , 443 S.W.3d 101, 112-13 (Tex. 2014). However, the reviewing court should not disregard undisputed facts that do not support the verdict to determine whether there is clear and convincing evidence. Id. at 113. In cases requiring clear and convincing evidence, evidence that does nothing more than raise surmise and suspicion will not suffice unless that evidence can produce a firm belief or conviction that the allegation is true. Id. If, after conducting a legal sufficiency review, a court determines that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true, then the evidence is legally insufficient. Id. (citing In the Interest of J.F.C. , 96 S.W.3d at 266 ).
In a factual sufficiency review, a court of appeals must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing. In the Interest of J.F.C. , 96 S.W.3d at 266 (citing In the Interest of C.H. , 89 S.W.3d at 25 ). We must determine whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the Department’s allegations. Id. We also consider whether disputed evidence is such that a reasonable fact finder could not have resolved the disputed evidence in favor of its finding. Id. If, considering the entire record, the disputed evidence that a reasonable fact finder could not have credited in favor of the finding is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.
ISSUE ONE , PART ONE—APPLICABLE LAW
The Texas Family Code permits a court to terminate the relationship between a parent and a child if the Department establishes (1) one or more acts or omissions enumerated under section 161.001(b)(1) and (2) that termination of that relationship is in the best interest of the child. See § 161.001(b)(1), (2) ; Holley v. Adams , 544 S.W.2d 367, 370 (Tex. 1976). The burden of proof is by clear and convincing evidence. § 161.206(a). " ‘Clear and convincing evidence’ means 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." § 101.007.
Only one statutory ground is required to support termination. In the Interest of K.C.B. , 280 S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied). Although evidence presented may be relevant to both the statutory grounds for termination and best interest, each element must be established separately and proof of one element does not relieve the burden of proving the other. See In the Interest of C.H., 89 S.W.3d at 28.
ANALYSIS
Here, the trial court found that the Department established by clear and convincing evidence that C.C. had knowingly placed or allowed J.L.C. to remain in conditions or surroundings which endangered his physical or emotional well-being. § 161.001(b)(1)(D). The trial court also found by clear and convincing evidence that he engaged in conduct or knowingly placed J.L.C. with persons who engaged in conduct which endangered J.L.C.’s physical or emotional well-being. § 161.001(b)(1)(E).
At the final hearing, the Department’s evidence established that C.C. had been addicted to methamphetamine since he was twelve years old. When B.G. was pregnant with J.L.C., she had been addicted to methamphetamine for three years. During her pregnancy, C.C. continued to use drugs and used drugs with B.G. Although he was aware that it was important to care for J.L.C. during the pregnancy, he was "far off" in his addiction and did not provide for J.L.C.’s protection and safety. Moreover, he, B.G., and J.L.C. tested positive for drugs at J.L.C.’s birth.
The Supreme Court of Texas has recognized that "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 the Interest of J.O.A. , 283 S.W.3d 336, 345 (Tex. 2009). Consequently, illegal drug use may support termination under subsection 161.001(b)(1)(E) because "it exposes the child to the possibility that the parent may be impaired or imprisoned." Walker v. Tex. Dep't of Family & Protective Servs. , 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). In determining whether a parent has engaged in a course of conduct endangering a child, we may look at the conduct both before and after the child’s birth. In re D.M. , 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.). Moreover, danger to a child need not be established as an independent proposition and may be inferred from parental misconduct even if the conduct is not directed at the child and the child suffers no actual injury. Walker , 312 S.W.3d at 616 (citing Texas Dep't of Human Services v. Boyd , 727 S.W.2d 531, 533-34 (Tex. 1987) ).
The evidence is that C.C.’s drug use, and at the least, implicit approval of B.G.’s use of illegal drugs throughout her pregnancy was not an isolated event but was a part of a course of conduct involving the use of illegal drugs. In the Interest of R.W. , 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). In addition, while a parent’s "mere imprisonment is not conduct that endangers the emotional or physical well-being of a child, it is a factor the court may consider on the issue of endangerment." Boyd , 727 S.W.2d at 533-34 ; Walker , 312 S.W.3d at 617-18 ; In the Interest of R.W. , 129 S.W.3d at 732. Accordingly, having considered the entire record, we find that there is sufficient clear and convincing evidence for the court to have reasonably formed a firm belief or conviction that C.C. engaged in conduct that endangered the physical and emotional well-being of J.L.C., and, therefore, provides both legally and factually sufficient evidence that C.C. engaged in conduct proscribed by § 161.001(b)(1)(E). See In the Interest of S.M.L.D. , 150 S.W.3d 754, 759 (Tex. App.—Amarillo 2004, no pet.).
Having found one statutory ground supporting termination, any discussion regarding whether termination is also proper under section 161.001(b)(1)(D) is pretermitted. TEX. R. APP. P. 47.1. See In the Interest of K.C.B. , 280 S.W.3d at 894-95 (only one statutory ground is required to support termination). Issue one, part one is overruled.
ISSUE TWO—BEST INTEREST UNDER SECTION 161.001(b)(2)
The Department was also required to prove by clear and convincing evidence that termination of Appellant’s parental rights was in J.L.C.’s best interest. § 161.001(b)(2) ; In re K.M.L. , 443 S.W.3d at 116. Only if no reasonable fact finder could have formed a firm belief or conviction that termination of his parental rights was in the child’s best interest can we conclude the evidence is insufficient. Id. (citing In the Interest of J.F.C. , 96 S.W.3d at 266 ).
There is a strong presumption that the best interest of the child will be served by preserving the parent-child relationship. In the Interest of R.R. , 209 S.W.3d 112, 116 (Tex. 2006). Prompt and permanent placement of the child in a safe environment is also presumed to be in the child’s best interest. See § 263.307(a). Section 263.307(b) provides a non-exhaustive list of factors to consider in deciding best interest. Similarly, the Supreme Court has set out other factors to consider when determining the best interest of a child. See Holley , 544 S.W.2d at 371-72. Those factors include (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 individual seeking custody; (5) the programs available to assist the individual to promote the best interest of the child; (6) the plans for the child by the individual or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that 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. Id. Importantly, the absence of evidence about one or more of these considerations does not preclude a fact finder from reasonably forming a strong conviction or belief that termination is in the child’s best interest. In the Interest of C.H. , 89 S.W.3d at 27 ; In the Interest of A.C. , 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet).
Evidence that supports one or more statutory grounds for termination may also constitute evidence illustrating that termination is in the child's best interest. See In the Interest of C.H. , 89 S.W.3d at 28. See also In the Interest of E.C.R. , 402 S.W.3d 239, 249-50 (Tex. 2013). The best interest analysis may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as direct evidence. See In re N.R.T. , 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). Additionally, a child’s need for permanence through the establishment of a "stable, permanent home" has been recognized as the paramount consideration in determining best interest. See In the Interest of K.C. , 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.).
ANALYSIS
In support of his assertion that the evidence was legally and factually insufficient that termination was in J.L.C.’s best interest (issue two), C.C. asserts that he has taken several drug treatment and parenting classes while incarcerated. He also asserts that he has a plan in place to care for J.L.C. if he is paroled.
Evidence of a parent’s unstable lifestyle can support a fact finder’s conclusion that termination is in a child’s best interest and "[a] parent’s drug use, inability to provide a stable home, and failure to comply with a family service plan support a finding that termination is in the best interest of the child." In the Interest of M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). See In the Interest of J.O.A. , 283 S.W.3d at 346 (stating that a recent, short-term improvement does not conclusively negate the probative value of a long history of drug use and irresponsible choices). Moreover, drug addiction and its effect on a parent’s life and ability to parent may establish an endangering course of conduct sufficient to support termination of parental rights. Perez v. Tex. Dep't of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.).
If he receives parole, C.C. proposes that his mother have custody of J.L.C. for at least three to six months while he completes a drug treatment program. During this period, J.L.C. would be living with C.C.’s stepfather who was imprisoned six years ago. Not only is it uncertain that C.C. will even receive parole, there is no evidence indicating why the stepfather was imprisoned. In addition, not having a substantial period of time living drug-free outside of confinement or success at parenting along with C.C.’s long-term addiction to drugs, his drug use during B.G’s pregnancy, incarceration for a twelve-year sentence, and his relative lack of concern where J.L.C.’s prenatal well-being was concerned during B.G.’s pregnancy, weigh in favor of the trial court’s finding.
Although C.C. has been diligently pursuing programs while incarcerated to better himself and has kept in touch with the Department through the mail, he candidly admits that he will not be able to provide for J.L.C. even if he is paroled. He further indicated that if paroled, it would be awhile before he was able to do anything constructive for J.L.C. and that whether he was able to care for the safety and protection of his son was "something he [had] to prove." On the other hand, J.L.C. is currently living with his maternal aunt who is taking care of his needs. He is developmentally on target, there are other children for him to socialize with, and his environment is safe, secure, and drug-free. The long-term prognosis looks good, i.e., J.L.C.’s maternal aunt loves him and hopes to adopt him.
Because prompt and permanent placement of a child in a safe environment is presumed to be in the child’s best interests; see § 263.307(a), the conclusions and credibility determinations that the trial court could have made, or inferred, were reinforced by the testimony of the Department’s witnesses. In the Interest of J.O.A., 283 S.W.3d at 346-47 ; In the Interest of J.P.B. , 180 S.W.3d 570, 573 (Tex. 2005). Accordingly, we conclude that the evidence is legally and factually sufficient to support the best interest finding and overrule C.C.’s second issue.
ISSUE ONE , PART TWO—TERMINATION UNDER THE ICWA
Under the ICWA, the Department is required to establish beyond a reasonable doubt that (1) the State has made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and these efforts have proved unsuccessful and (2) the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. See 25 U.S.C. § 1912(d), (f) (1978) ; In the Interest of K.S. , 448 S.W.3d at 538.
The beyond a reasonable doubt standard has traditionally been regarded as the decisive difference between criminal culpability and civil liability. Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979) (citations omitted). See In the Interest of K.S. , 448 S.W.3d at 539. When we review the sufficiency of evidence pursuant to the ICWA burden of proof requirements, we must determine whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the requirements of section 1912(d) and (f) were satisfied beyond a reasonable doubt. See id. at 539. See also Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ; City of Keller v. Wilson , 168 S.W.3d 802, 817 (Tex. 2005) (legal sufficiency review of cases involving termination of parental rights requires the reviewing court to consider all the evidence, not just evidence favoring the verdict). This standard gives play to the responsibility of the trier of fact to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from basic facts to ultimate facts. Jackson , 443 U.S. at 319, 99 S.Ct. 2781.
C.C. also challenges the factual sufficiency of the evidence supporting the ICWA grounds, but Texas no longer applies a factual sufficiency review to challenges of evidence requiring proof beyond a reasonable doubt. See Brooks v. State , 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (holding that factual sufficiency standard is indistinguishable from the Jackson v. Virginia legal sufficiency standard); In the Interest of K.S. , 448 S.W.3d at 539. Accordingly, we apply the Jackson v. Virginia standard in reviewing the sufficiency of evidence supporting termination under the ICWA.
ANALYSIS
Here, C.C. had custody of J.L.C., if at all, for three days before he was incarcerated. The evidence we have is that prior to entering prison, C.C. had been addicted to methamphetamine since he was twelve and continued using with B.G. throughout her pregnancy even though he knew it was detrimental to J.L.C. Because of his incarceration, he has yet to prove that he can remain drug-free outside of confinement or meet the needs of J.L.C. on a regular basis. While the whole menu of services offered by the Department was available to C.C., he was unable to take advantage of them because he committed the offense of burglary of a building to ostensibly maintain his addiction to methamphetamine. To his credit, he has taken advantage of programs offered in prison to better himself, but his present efforts are insufficient where J.L.C. is concerned. Drennen, the tribal representative and qualified expert, opined at the final hearing without objection that, beyond a reasonable doubt, continued custody by C.C. was likely to result in serious emotional or physical damage to J.L.C. and that his placement with his maternal aunt was ICWA compliant and the preferred placement, i.e., such placement was in J.L.C.’s best interest. She opined that the Department had appropriately engaged C.C. with services but the Department’s efforts had failed.
Having examined the entire record, we find that the Department’s evidence at the final hearing established beyond a reasonable doubt that the Department appropriately engaged C.C. with services but the Department’s efforts had failed and continued custody by C.C. would likely result in serious emotional or physical damage to J.L.C. Accordingly, issue one, part two is overruled.
B.G'S ISSUE ONE—BEST INTEREST UNDER SECTION 161.001(b)(2)
B.G. contends the trial court erred when it determined that termination of her parental rights was in J.L.C.’s best interest under the Texas Family Code. In support, she asserts that she is willing to mitigate her drug problem by attending inpatient rehabilitation, has worked many of her services, and has applied for jobs and alternative housing arrangements. With the foregoing standards of review in mind, we turn to her single issue. If B.G. were granted custody of J.L.C., she would not have a safe, stable home environment to care for him. She lost her job seven months before the final hearing in February 2018, and only recently started looking for steady employment before the hearing. She also lost her apartment a month or so before the hearing and only had an application pending for public housing. Her visitation with J.L.C. was suspended in March 2017 due to a positive drug screen; however, she was afforded the opportunity to have her visitation reinstated by obtaining two negative hair follicle tests. Despite this opportunity, she never attained the required test results and visitation was not reinstated. She has been a methamphetamine addict for three years and used throughout her pregnancy knowing it might harm J.L.C. Although she was able to remain drug-free for a few months during the termination proceedings, she began using methamphetamine when she relapsed in September shortly after completing a drug treatment program. At the time of the final hearing, she had only ceased using drugs for two months. J.L.C., on the other hand, has bonded with his maternal aunt and his needs are being met. He is living in a stable and safe environment with a foster parent who loves him and seeks to adopt him.
While B.G.’s intentions to remain drug-free, obtain employment, and secure housing are admirable, her past actions cast substantial doubt on whether she will be successful. The prompt and permanent placement of a child in a safe environment is presumed to be in the child’s best interests. See § 263.307(a). Here, the conclusions and credibility determinations that the trial court could have made, or inferred, in reaching its order were reinforced by the testimony of the Department’s witnesses. In the Interest of J.O.A., 283 S.W.3d at 346 ; In the Interest of J.P.B. , 180 S.W.3d at 573. Accordingly, we conclude that the evidence is legally and factually sufficient to support the trial court’s best interest finding and overrule B.G.’s single issue.
CONCLUSION
The trial court’s order terminating C.C. and B.G.’s parental rights to J.L.C. is affirmed.
CONCURRING OPINION
Brian Quinn, Chief Justice
I join in the opinion of the majority in all respects except the portion holding that a factual sufficiency review is unavailable in a civil termination proceeding where the standard of proof is beyond reasonable doubt or where the Indian Child Welfare Act applies. This is because I question whether the opinion in Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010) applies to an appeal of a civil termination, as opposed to a criminal conviction. See S.P. v. Tex. Dept. Family & Protective Servs. , No. 03-17-00698-CV, 2018 WL 1220895, at *2 n.5, 2018 Tex. App. LEXIS 1788, at *5 n.5 (Tex. App.—Austin Mar. 9, 2018, no pet.) (mem. op.) (stating that it is unclear whether the factual sufficiency standard applies). I would hold, though, that the evidence of record remains more than sufficient to withstand attack even if the factual sufficiency review were to apply. So, the issue need not be decided here.