Opinion
05-22-01019-CV
02-27-2023
IN THE INTEREST OF S.O., MINOR CHILD
On Appeal from the 296th Judicial District Court Collin County, Texas, Trial Court Cause No. 296-30101-2020
Before Justices Molberg, Partida-Kipness, and Carlyle.
MEMORANDUM OPINION
KEN MOLBERG JUSTICE.
Mother and Father separately appeal the trial court's termination of each of their parental rights to S.O. In one issue, Father argues the evidence was legally and factually insufficient to support the trial court's finding that termination of Father's parental rights was in the best interest of S.O. Mother also argues the evidence was insufficient to support a finding that termination of her rights was in the best interest of S.O. In a second issue, Mother argues the trial court abused its discretion in appointing the Department of Family and Protective Services as sole permanent managing conservator of S.O. For reasons discussed below, we will affirm in this memorandum opinion. See Tex. R. App. P. 47.4.
I. Background
The Department filed its original petition for protection of four-year-old S.O., for conservatorship, and for termination on August 11, 2020. The Department alleged that in late July 2020, police responded to a domestic disturbance at 1 a.m.; Mother was arrested for assaulting Father, and they both admitted to having narcotics around S.O. The Department investigator received a hair-strand drug test on August 10 for Father, which was positive for amphetamine, methamphetamine, cocaine, and marijuana; for Mother, which was positive for amphetamine, methamphetamine, cocaine, marijuana, and benzoylecgonine; for S.O., which was positive for amphetamine, methamphetamine, and marijuana; and for Grandfather, which was positive for marijuana. The Department's affidavit supporting the petition described an unsafe home environment for S.O., which included drug use in the home; a history of family violence; a history with the Department; criminal history; and no viable relative placement options for S.O.
Trial before the court was conducted beginning on May 17, 2022. A police officer from the Plano Police Department testified that he, in July 2020, was dispatched to appellants' home after midnight when Father called police, reporting a domestic dispute between Mother and himself. The officer observed glass on the floor, and generally, things were "a mess"; the house appeared to him as if a hoarder lived there. Father had scratches on his arm, and Mother reported Father assaulted her earlier in the day, and she had bruises on her forehead. Father reported Mother was a methamphetamine user, and the drugs were making her "violent and crazy." The officer testified Mother appeared to be under the influence. Father told police Mother had been storing meth in S.O.'s crayon box. Another officer testified Father told him Mother's history of violence went back "about ten years" and he was afraid for his and S.O.'s safety. Mother was arrested that night for assault family violence. Police relayed the incident to the Department.
Earlier in the month, police were called at two in the morning to apprehend Mother, who was having a mental health crisis and stabbing the walls of her home with a knife. Her father-in-law told police Mother was "terrorizing" him. Mother told police "she thought she was being robbed and that people that she thought were robbing her were in the wall." S.O. was in the home at the time. Mother was apprehended and taken to the hospital.
Another officer testified that, on January 7, 2018, she was dispatched just before midnight to a 7-Eleven, where she found Mother, who reported Father had hit her ten minutes prior and also a couple of days before. The officer observed one of Mother's eyes had a bruise and the other "had a fresh red mark and some swelling." Mother said she was terrified of Father and "described him as being a monster." The assault happened in the car while she and Father were driving, and S.O. was in the backseat. Mother did not want to press charges but "wanted [the police] to be aware of the situation." Father was later arrested, and the police officer notified the Department.
Chelsea Deel, a former Department investigator, testified she was assigned to Mother, Father, and S.O. in April 2016 and again in 2018. Deel said Mother and Father were referred to the Department in 2016 after a report of "physical neglect of [S.O.] due to concerns of her not gaining weight." S.O. was four months old at the time. Deel worked with the family, and "physical neglect by both parents" was ultimately ruled out, and the case was closed. Concerns about domestic violence after the 7-Eleven incident led to the second Department referral in 2018. Deel said Mother and Father were not consistent: "They would be cooperative and then kind of backtrack and not be cooperative after that."
Denikequia Simmons testified she was assigned to Mother and Father's case in April 2018. At the outset, Mother, Father, and S.O. all tested positive for marijuana. Mother and Father received psychological evaluations, individual counseling, random drug testing, and drug education services. Father was ordered to complete the Batterer's Intervention and Prevention Program, and Mother did domestic violence victims' counseling. Simmons said, "when it came down to . . . doing their services, [Mother and Father] were pretty combative[.]" Though they completed their services after about eight months, Simmons had concerns about their honesty. Despite being in methadone treatment, Father said during his psychological evaluation that he did not have any substance abuse history. And Mother said during her evaluation that "there was not any family violence[.]" At one point, when Mother and Father were lagging in performing their services, they had to go to court "to have a talk with the judge[.]" When Simmons closed the case, she recommended, in the event of a subsequent referral to the Department, further legal intervention beyond services.
Chinequa Baker testified she was assigned to Mother and Father's case in July 2020 after they were referred to the Department again in the wake of the domestic violence incident at their home. The Department was concerned by domestic violence, drugs in the home, S.O.'s being awake at one in the morning, the condition of the home, and Mother's mental health. When Baker first went to Mother and Father's home, she detected the odor of marijuana when Father opened the door. Baker testified Father told her that Mother was "using drugs," and he "found out that [Mother] was on ice." He said he had issues with drug use in the past, but "currently, he was only using CBD." Baker said she was concerned about the state of the home: "it was just the filth and the condition of it" and how S.O. looked-she "had not been bathed or cleaned, or anything like that." Baker described the home as being in "disarray" and not livable. S.O. was sleeping in a bed that "was soiled, it was destroyed, it was on the floor" in a room that appeared "sabotaged" and "did not look habitable." Baker testified S.O. did not appear to be well-nourished. There was trash "throughout the home," which Baker did not think was a result of Mother and Father's fight. Baker went to the jail to interview Mother, who told her she and Father "had got into a fight" but "it was just normal stuff that happened and they were going to be okay." Mother was going to get back with Father once the protective order expired. She said that although she was blamed for the violence, "it was really [Father who] was the violent one." Drug tests were administered, and Grandfather, who lived in the home with them, tested positive for marijuana; Father tested positive for alprazolam, marijuana, and methadone; and Mother tested positive for amphetamine, methamphetamine, marijuana, cocaine, and "benzos." Father's hair strand was tested, and it was positive for amphetamine, methamphetamine, cocaine, and marijuana. S.O. was positive for amphetamine, methamphetamine, and marijuana. Father blamed S.O.'s positive test on Mother using meth in the home. The Department sought a family placement for S.O., but Father's sister declined, and Father's grandmother was deemed unable to care for S.O.
Dr. Sandra Roland, a psychologist, also testified at trial. She met with S.O. four times, interviewed the foster parents, Mother, Father, and other caregivers. Dr. Roland concluded S.O. met the criteria for "a post-traumatic stress disorder diagnosis with some dissociative features or symptoms." This was based on nightmares S.O. had, "sexual acting out behaviors," withdrawn behavior, and changes in demeanor before or after visiting Mother and Father. Though she did not determine S.O. had dissociative identity disorder-formerly known as multiple personality disorder-Dr. Roland thought S.O. "needed to continually be watched and that another evaluation should take place when she was at least seven . . . and that it was most important to start the correct treatment to help her so it did not go into . . . full [dissociative identity disorder.]" Dr. Roland also thought S.O. may have exhibited disinhibited social engagement disorder, which is characterized by a child lacking the normal bond with the parent, so the child is "quick to go to strangers or give them kisses, not recogniz[ing] danger." Dr. Roland recommended S.O. receive therapy and be given breaks "in-between seeing" Mother and Father.
Cindy McCartney testified she is a registered play therapist who is certified in eye movement desensitization and reprocessing therapy. She agreed with Dr. Roland's diagnosis of PTSD with dissociative features, which is unusual for children. Among other things, McCartney testified S.O. told her that her "other mom and dad were mean," and she referred to her old house as "the anger house" where "they yell." S.O. said the house she lived in with her foster parents was "the kindness house." She described S.O.'s dissociative features as episodes in which S.O. went into her own world and was not "present in the room." When McCartney questioned S.O. about her visits with Mother and Father, S.O. tended to deflect and would not talk about them. McCartney's recommendation for S.O. was "continued play therapy." When questioned by Mother's counsel about whether the source of S.O.'s PTSD could be "being removed from your parents and put into CPS care or just removed to go to strangers," McCartney responded, "I mean, there is all different levels of trauma; so yes, that will be a possibility."
The Department's conservatorship worker assigned to S.O., Kaci Koslan, also testified. Her responsibilities included setting up the parents' services, coordinating care with the foster family with respect to parent-child visits, and setting up those visits. Koslan testified the Department's original goal was family reunification, but that changed in August 2021 after the Department observed S.O.'s behavior and saw the results of counseling. The Department changed its goal to alternate family relative adoption, and eventually at the time of trial, non-relative adoption. Koslan testified Mother and Father completed their services, "but they were not honest in their initial evaluations." Father "denied any substance abuse use in the past 12 months, [and] he lied about being prescribed methadone and drug use." Mother "denied any mental health diagnosis that had been made against her, [and] reported that she had no recent use." Mother also said her recent drug use "did not . . . put anyone in danger, including her family." Koslan said it was important for parents to be honest in their evaluations so "they can get the appropriate recommendations to help them[,]" and the purpose of services "is to mitigate any dangers that were present at the time of removal that led to CPS involvement, and if parents aren't honest in those evaluations, those dangers can't be mitigated." Given that, Koslan did not think the parents appropriately completed their services. On cross-examination, Koslan stated there was no service the Department wanted Father to complete that he did not complete. Koslan stated Mother failed to complete her psychological assessment to the Department's satisfaction in that she was not honest about drug use, mental health, history, and domestic violence.
Mother also failed to complete her drug and alcohol assessment to the Department's satisfaction when she denied recent substance use issues, any mental health diagnosis, and that her drug use had created a danger to her family. Despite negative drug tests following July 2020, the Department still had concerns about Mother's continued sobriety. Koslan requested Mother take a "14-panel hair test" on a particular day, and she failed to take the test on the day. Father had also failed to take a drug test on an appointed day. Koslan stated the purpose of parenting classes is to "show changed behavior," which is then hopefully demonstrated during parent-child visits. Koslan said Mother had not demonstrated changed behavior, and had violated the rules by making "comments alluding to family reunification to the child, which I have had to interject for. She makes promises that the child and her and [Father] are going to be together as a family again." Koslan believed her recommendation of termination was consistent with S.O.'s wishes.
The Department believed termination was in S.O.'s best interest because it did not "know if they have really learned from the services; we don't know if they have made a change. The Department is concerned that the parents are not admitting to or fully aware of why [S.O.] came into care." Mother and Father, in their conversations with Koslan, never indicated acceptance of responsibility for why S.O. came into care in the first place. Koslan stated she was concerned Mother and Father would "not be able to be protective, will not be able to meet her long-term needs and continue with the therapy and continue with the care that she requires."
Koslan also observed visits between S.O. and Mother and Father. She testified they pushed the boundaries when it came to the rules for the visits. Koslan testified the parents were originally ordered not to communicate with each other, but the Department discovered the parents were not only communicating with each other but, at times, meeting.
The court-appointed special advocate for S.O., Jennifer Boswell, testified she had spent over 275 hours with S.O. CASA's recommendation was termination of Mother's and Father's parental rights to S.O., which they believed to be in S.O.'s best interest. Boswell said she did not think her initial hope for reunification was possible. S.O. had "made it clear that her wishes are consistent with CASA's recommendation" and S.O. had confided in Boswell information consistent with her recommendation and concerns about the parents. Boswell stated S.O. needed "the opportunity to heal and thrive the way she has since removal from" Mother and Father. During the visits between S.O. and her parents, Boswell did not see Mother and Father exhibit new behaviors learned from services; instead, she saw them "skirt the rules to some degree." Mother demeaned the Department and the "foster parents and their choices" in front of S.O. and told S.O. she knew she was "suffering there." Boswell said on a couple of occasions, when Mother was demeaning her or the Department caseworker, S.O. "immediately told me she has to go to the bathroom" and then ran "to the bathroom almost crying[.]" Once, in August or September 2021, Boswell brought up to S.O. that Father "really wanted her to come home and that that might happen." S.O. panicked, looked like she was about to cry, and said, "I already told you they are mean to me." Boswell said she had observed dissociative behavior by S.O., including lapsing into extreme "fantasy play" she had not seen exhibited by any other children before. Boswell's experience with children included raising two children and being a preschool teacher of four- and-five-year-olds. Boswell also testified S.O. had exhibited sexualized behaviors. Once, S.O. performed a "stage dance" for Boswell "that was very suggestive and provocative." Another time, S.O. grabbed hold of "the door handles during visitation and . . . humped the door."
Boswell said she would be concerned if S.O. were returned to Mother and Father. She did not think S.O. "would be cared for in a way that is beneficial to her healing or to her having a safe home, both emotionally and physically." She did not think Mother or Father understood S.O.'s PTSD. Father, she said, believed S.O. was a normal happy child and that any damage was "from being removed from the home." Mother, she said, told her their "life together in the home was ideal and that there is nothing wrong with [S.O.], other than her removal from the home." Boswell also did not believe Mother and Father intended to remain separated based on things they had said to her and others. Boswell said she had personal knowledge of three occasions when Mother was at Father's house, against the trial court's orders, including one time when Mother stayed overnight. This was more than the one time Mother said she had gone to Father's house to pick up her belongings. Boswell said she did not have any concerns about the foster family S.O. was placed with, though she was skeptical of them at first, and she did not think the foster family was the source of S.O.'s trauma. Boswell said S.O. regressed most weeks following parent-child visitations, but that she was making progress in therapy and in her foster home.
Travis Causey testified that he and his wife, Amanda Causey, had been S.O.'s foster parents for 23 months. They had been married for fourteen years, and both had stable jobs. Mr. Causey testified that S.O. disassociated sometimes, usually after visits with Mother and Father. During such spells, S.O. would have a "distant, far-off look on her face[, and i]t is very hard to bring her attention back to you." Mr. Causey said, in the event of termination, their plains for S.O. included continued therapy for as long as needed; continued enrollment in extracurricular activities; and support in whatever way she needed. The Causeys wanted to adopt S.O.
Mrs. Causey testified that when S.O. first came into their care, S.O. was underweight, had a significant rash on her bottom, untreated allergies, and had no concept of bedtime or meal times and would stash food. For a four-year-old, S.O. spoke "a lot of nonsense words" that seemed to imitate anime cartoons, and she had a difficult time "communicating her basic needs that she should know at four-and-a-half years old of thirst, hunger, and an actual need to toilet." S.O. also had poor coping skills and "could not self-regulate herself at all." Mrs. Causey said S.O. had "disturbing play," which included having her dolls act out violent scenarios. S.O.'s dolls, which she had received from Mother or Father, were age-inappropriate; when placed in cold water the dolls "reveal[ed] fishnet stockings and pasties over their nipples." Mrs. Causey also described sexualized behavior exhibited by S.O., which included pulling and twisting her nipples, using her stuffed animals to act out oral sex, and rubbing "her vagina on the corner of furniture." S.O. frequently had nightmares, and she feared naps.
As of S.O.'s most recent wellness exam at the time of trial, her weight had increased to the 49th percentile, she was being treated for her medical problems, and she had a structured routine. S.O. could communicate that she was hungry or thirsty, and could recognize when she needed to use the bathroom. Her language skills had improved, and she achieved ninety-five percent accuracy on the "guiding ARD" standard at school. The Causeys were taking her to play with other children, ballet, swimming, and other activities to help socialize S.O. She had gained confidence living with the Causeys, but Mrs. Causey said she regressed after each parent-child visit with Mother and Father. She was worried that if S.O. returned to Mother and Father, S.O. would "revert back to where she was two years ago and [would] be re-traumatized and endangered in that environment." S.O. was bonded to the Causeys. She knew something was going on during trial and had "been extremely clingy when she returns from visitation."
Mother testified S.O. was six at the time of trial, and four when S.O. was removed from her custody following Mother's arrest for assault family violence. She said the criminal case had subsequently been dismissed. Mother said the COVID-19 pandemic greatly affected her family: they were unable to take S.O. to "libraries, parks, anywhere[,]" and they "were also unable to get therapy, family therapy." They felt isolated. Mother testified that, at the time of trial, she was living in a trailer she bought, and it was large enough for S.O. to live in. Mother was employed by Amazon Whole Foods, and she also worked as a "brand ambassador" for Crudo and State Farm. Additionally, Mother said she was on disability for congestive heart failure and ulcerative colitis; she said these medical problems did not make her unable to care for S.O.
Mother said she and S.O. sang together, made up songs, made up stories, cuddled, and laughed together during their visits. Mother did not feel supported in her visits by the Department or CASA, and she felt like they micromanaged the visits. Mother said they had "micromanaged me being able to bring food and snacks, me being able to bring activities, being told to leave it outside the door because [S.O.] is eating. Oh, I can't hug her in the lobby. Often there is a very negative energy coming from my caseworker." Mother stated she and S.O. had a good bond, and they both enjoyed their visits together.
Mother admitted she was not totally honest in her substance abuse evaluation. She did not want to share any potentially incriminating information because she had been arrested for child endangerment. Though she was given no recommendations after the evaluation, she knew she needed drug treatment, so she entered an intensive outpatient program. Mother said she learned different ways to cope, including meditation and grounding techniques, and became familiar with AA. She said she had been sober for two years; July 22, 2020 was her "sobriety date" for substances, and for alcohol it was August 2020. Mother said she continued to be very involved with AA. She continued to work the steps, and she was a sponsor and had been chairing groups and meetings since October 2021. Mother planned to make AA a part of her life for the rest of her life.
Mother testified she was seeing a private psychiatrist and therapist. An earlier psychiatrist had prescribed her Adderall and Xanax, which Mother considered a problem. At the time of trial, she was taking Strattera for ADHD and Zoloft for anxiety, and she said they were working "really well." Mother also took medicines for congestive heart failure and ulcerative colitis. Mother said she took more than the one parenting class required by the Department to learn as much as she could. She stated she learned a lot from each of the services she completed.
Mother asked the court to return S.O. to her; she wanted sole custody, but her intention with respect to Father was that they co-parent S.O. Mother said she would keep S.O. in play therapy and "any other recommended therapy that's necessary for her[,]" and she wanted to keep "her in extracurricular activities that she is already enjoying[.]" She said she could be a better parent to S.O. by being conscious of all the things Mother did, being present in S.O.'s life, and recognizing S.O.'s feelings and emotions. Mother said she was responsible for everything S.O. had been through. She believed S.O.'s PTSD diagnosis but said she did not know the cause of the disorder. Upon questioning from the court, Mother said she thought S.O.'s removal may have contributed, but after repeated questioning, reluctantly said that it was "a lot of my responsibility." By that she meant she "should have been more present in [S.O.'s] life[,]" and bad choices she made, including substance abuse. Upon questioning from the Department, Mother said she thought Father punching her in the face in 2018 may have contributed to S.O.'s trauma; that S.O. witnessing Mother trying to stab invisible people in the walls in July 2020 was not something that caused S.O. trauma; that S.O.'s exposure to marijuana in 2018 and 2020, and her exposure to methamphetamine may have caused S.O. trauma; and that the incident when Mother assaulted Father could have caused S.O. trauma. When asked whether having methamphetamine in S.O.'s crayon box could have caused S.O. trauma, Mother answered she had "been advised by my attorney to plead the Fifth." Mother denied ever having "stabbed invisible objects or people[.]"
Mother said she remained with Father after 2018 when he punched her in the face, and after subsequent family violence incidents. When the Department intervened at that time, Mother said she was not honest in her services evaluations regarding her substance abuse or family violence problems. Mother said she was currently facing criminal charges for child endangerment. She said her bond conditions in that case prohibited her from having contact with any child, until they were modified to allow supervised visits with S.O. Mother conceded she might have been in violation of that condition when she had contact with her AA sponsor's child. On cross-examination, Mother acknowledged she had been dishonest in her evaluations, and that as a result, no treatment was recommended.
Dr. Charukesi Chandrasekaran testified she was a psychiatrist who treated Mother for general mental health, including anxiety and depression. She diagnosed Mother with generalized anxiety disorder and ADHD and prescribed her sertraline, for anxiety, which improved Mother's symptoms after a couple of months, and atomoxetine for ADHD. Dr. Chandrasekaran said Mother reported a long history of substance abuse, which included "addict[ion] to heroin and cocaine since high school," but that Mother had reported sobriety since 1999, though "had some problems on-and-off with relapse." She said Mother told her she relapsed with methamphetamine the prior year when a meth user came to live with them. Dr. Chandrasekaran said Mother was most concerned about her drug use. She believed Mother was "medication compliant." Dr. Chandrasekaran referred Mother to a therapist, and testified she continued to see the therapist. In describing how Mother had changed, Dr. Chandrasekaran said she had become less anxious, more positive, and was "able to plan things, and carry out a task." Mother was committed to treating and working on her mental health. Dr. Chandrasekaran stated no one from the Department or CASA had inquired about how Mother was doing in her treatment. She thought Mother was able to raise a child, and that any child in her custody would not be in danger, though she admitted on cross-examination this opinion was based solely on her interactions with Mother, not any observations of or knowledge about Mother and S.O.
Mother's licensed professional counselor, Tammy Leday, also testified. She said Mother initially presented as flustered, unfocused, and "tangential with her conversations and very tearful." Leday focused her therapy on dealing with her daughter "being away from her and making sure" she did not relapse with drugs. At the time of trial, Leday said Mother was "very focused and she is creating lists and she is practicing mindfulness and trying to stay present in the moment. She is, again, focused and more confident. Her self-esteem has improved, the way that she carries herself." Leday thought Mother was committed to sobriety and mental health, and she thought Mother could parent a child. Leday said her knowledge about Mother's substance abuse was based upon Mother's self-report to her. Mother described her relationship with S.O. as "nurturing."
Mother's Alcoholics Anonymous sponsor testified her expectations for Mother in the beginning were that she attend ninety meetings in ninety days, pray twice a day, begin reading a certain book about addiction and treatment, and text her Sponsor every day. Sponsor testified Mother followed through on these expectations. After the first ninety days, Sponsor thought Mother was attending four or five meetings per week, and she said Mother had completed all of the program's steps. Sponsor said Mother put a lot of time and thought into the process, and she said she thought Mother was committed to sobriety because Mother had "shown remorse, she has shown a very whole understanding of what she was doing and the consequences that that had . . . and an eagerness to change and to live this life-style, an AA life-style." Mother was "very involved" in AA, including chairing meetings and attending citywide AA events. Mother had changed, Sponsor said, in that she seemed "more stable, more like she has a handle on life" and has a community supporting her. Sponsor believed Mother was committed to S.O. and loved her. She did not think Mother had relapsed during their relationship.
Sheri Leyba testified Mother took her Focus for Motherhood class as one of her Department services and completed the class successfully. Mother was "extremely active" in the class and participated in every discussion. Leyba believed, based on their phone calls and conversations, that Mother was committed to changing her life and raising S.O. in a healthy way. Leyba had not observed Mother interacting with S.O.; her beliefs were based on their time together in Zoom classes and phone calls.
S.O. began Pre-K after being removed and her teacher, Kelsey Angleman, testified that when S.O. first began at the school, she was sad and "would just cry a lot." After several weeks, S.O. became very interactive and started playing with the other children and generally active in her class. Angleman described S.O. as a "typical four-or-five-year-old." In response to a question about how she knew there were days S.O. would go see her parents, Angleman said, "She would just come in a little bit quieter for just like maybe the first 30 minutes, and then she would come in and just kind of warm back up to her normal routine." Angleman said nothing about S.O.'s behavior suggested mental illness or that S.O. was suffering from anything. Faren Manuel, the director of S.O.'s school, also testified. She said she observed dark circles under S.O.'s eyes, and said she was nervous, shy, and scared for the first two weeks but she slowly integrated into the school. Manuel stated that none of S.O.'s behavior concerned her, and she did not observe any kind of sexualized behavior. She said S.O. would sometimes "zone out a little bit," not talk, and just stare. Manuel was not concerned about the foster family or the care they were giving S.O.
Father testified he was asking the court to return S.O. to him. He understood S.O.'s PTSD diagnosis and said he contributed to it by his past behavior, drug use, and "the fighting that I did with" Mother. Father said S.O. was exposed to illegal drug abuse, and he was not honest with the Department in the drug assessment he completed. Father said he did not admit to "any of my drug usage" because he did not see that admitting the truth would have helped him. He stated the services he had worked as part of the case had made a difference in his life. Father was ordered to do Fathers' Focus, Batterer Intervention and Prevention Program (BIPP), drug use intervention, psychological evaluation, counseling, individual counseling, and drug-alcohol assessment. Father said he completed Fathers' Focus twice and then kept volunteering for the class. Though he was not ordered to, Father began attending Narcotics Anonymous because he "wanted help with my substance problem." He said the program had allowed him to see that he had a problem and reflect on his responsibility for his problems how to avoid them in the future. Father thought he would be a better parent as a result of the program.
Father said he was very involved in BIPP because he wanted to learn to better communicate. His instructor wanted him to take the four-hour course, but he volunteered for 18 hours of the class. He understood the Department's concern about his and Mother's volatile relationship. He learned "a lot about psychology and a lot about communication skills and better ways to communicate with people to avoid conflict from the beginning." Father said he had no intentions to get back together with Mother. Father stated he saw a counselor, Dr. Blake Mitchell, twice a month to address stress management, anxiety, his relationship with Mother, and addiction. Father believed the work he did with Dr. Mitchell changed him as a father. Father said he also attended and completed a program called Above and Beyond Counseling, which was an online supportive outpatient program, a coparenting class, and the Raffa Continuing Education Program. Father stated there was nothing the Department asked him to do that he had not done.
Though he said he was not required to, Father weaned off his prescribed methadone and Xanax during the case. After six months of detox, he took his last methadone in September 2021. He then took four months to wean off Xanax. At the time of trial, he was prescribed Neurontin and hydroxyzine, both for his generalized anxiety disorder and panic disorder.
On cross-examination, Father admitted he was not honest in his Department psychological evaluation. Father said, during the evaluation, there was no domestic violence between Mother and Father, when actually, as he said at trial, he and Mother had engaged in verbal and physical violence. Father said he had been physically violent towards Mother in 2018, "when that first family violence charged happened." He said he slapped her in the face once after she hit him twice. Regarding the July 2020 incidents, Father said he was concerned about Mother's methamphetamine use at that time. He filled out an affidavit of non-prosecution regarding Mother's assault family violence change because he did not think her prosecution would benefit their family. He said it was around July 6 when Mother contacted him to let him know she had stashed drugs in S.O.'s belongings; he went and found the drugs in "a little box [in which] you keep Crayons and pencils" behind S.O.'s books on a shelf, and he flushed them down the toilet. When asked if he was using meth in July 2020, Father said, "I've been informed by my attorney to invoke my Fifth Amendment right. I want to be honest, I want to be accountable; but because of the charges, I don't think that I would be any benefit to my daughter with felony charges." He invoked his Fifth Amendment rights again when asked the last time he used meth. Father stated he did not believe he did everything to protect S.O. when she was in his care.
Father said the drugs he had struggled with the most in his addiction were opiates. When asked the last time he misused prescription pills, he said Xanax because he believed he was "overprescribed that medication." He last took it in March 2022. He had last used marijuana in August 2020, which was after S.O. had been removed. Father acknowledged that his father, whom he still lived with and worked for, tested positive for marijuana.
Father said that he did not receive any recommendations from his substance abuse evaluation because he lied about drug use. He did not, as a result, begin a supportive outpatient program until a year after that evaluation. Father said he had not followed all of the rules during his visits with S.O.
The facilitator for Fathers' Focus, Robert Anderson, testified at trial and said Father was involved in the class. After completing the ten-week program, Father returned to the class as a volunteer or peer mentor. Anderson said he thought Father could teach the class himself. Anderson believed Father had accepted that his actions had led him to the position he was in.
Father's counselor, Dr. Blake Mitchell, testified that Father was always on time for his appointments. Father presented with "considerable anxiety" and "lingering substance issues," as well as depression related to the Department's case. Dr. Mitchell provided Father with personal psychotherapy to help him in the process of coming off of medications. Comparing Father from when he started therapy to the time of trial, Dr. Mitchell said he had come off of all substances, including Xanax, he was more open, and was open to the process and the 12-step program he was undertaking. Dr. Mitchell testified there was nothing he saw from Father that would "interfere with his ability to effectively parent" S.O. On cross-examination, Dr. Mitchell stated he was unaware Father was still taking methadone while under his care. Dr. Mitchell was aware Father had been arrested for family violence against Mother. He stated he thought Father had a substance use disorder: "Clinically significant impairment, multiple areas of functioning, use of substances." When Father first started with Dr. Mitchell, the doctor said a 30-day residential treatment program, or at least an intensive outpatient program, would have been beneficial. Based on Father's untruthful self-report in his evaluation, however, no treatment was recommended. But, he said, Father was in "an exponentially different place" than when the case began. Dr. Mitchell felt confident about Father's future.
Dr. Mitchell also said Father and Mother had a codependent relationship, and that Father reported consistent violence against him from Mother. Father also reported Mother's abuse of methamphetamine. Dr. Mitchell testified Father reported visiting with Mother "a few" times during the pendency of this case.
Father's Narcotics Anonymous sponsor described Father as attentive to anything he asked him to do. Father called regularly-three to four times per week-and they met weekly. Of the dozen or so people he had sponsored, Father had been the most committed because, he thought, it was "a matter of desperation." Sponsor thought Father was open and honest with him about his past, including his struggles with drug use. He believed Father was committed to the NA program long-term based on his behavior: attending meetings regularly, calling regularly, "being of service to others," and demonstrating "the spiritual principles that are taught in the program[.]" Previously, Father had participated in AA through step eight with a different sponsor, but in NA, Father had finished step one and was working on step two with Sponsor. Father told Sponsor he had addiction problems with Xanax and methadone.
After the close of evidence and arguments from counsel, the trial court found by clear and convincing evidence that termination of the parent-child relationship between Mother and S.O. was in the best interest of S.O. The court further found that Mother knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child, see Tex. Fam. Code § 161.001(b)(1)(D); and that Mother engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child, see Tex. Fam. Code § 161.001(b)(1)(E). The trial court found that termination of the parent-child relationship between Father and S.O. was in the best interest of S.O., and the court made the same two findings under sections 161.001(b)(1)(D) and 161.001(b)(1)(E) for Father as it made for Mother. The trial court ordered that the Department be named as non-parent permanent managing conservator of S.O.
II. Applicable law
A. Standard of review
"Because the fundamental liberty interest of a parent in the care, custody, and control of his child is one of constitutional dimensions, involuntary parental termination must be strictly scrutinized." In re C.V. L., 591 S.W.3d 734, 748 (Tex. App.-Dallas 2019, pet. denied) (citing Troxel v. Granville, 530 U.S. 57, 65-66 (2000)). While we acknowledge the constitutional dimensions of parental rights, we also recognize the imperative that the "emotional and physical interests of the child not be sacrificed merely to preserve" those rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). The evidence supporting termination must be clear and convincing before a court may involuntarily terminate a parent's rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence is the measure or degree of proof that will produce in the mind of the fact finder a "firm belief or conviction" as to the truth of the allegations. Tex. Fam. Code § 101.007. Termination of parental rights requires proof by clear and convincing evidence that (1) a parent committed one or more of the enumerated statutory acts in section 161.001(b)(1) of the family code, and (2) termination is in the best interest of the child. See Tex. Fam. Code § 161.001(b). Because the standard of proof is "clear and convincing evidence," the supreme court has held that the usual legal and factual standards of review are inadequate. In re M.A.J., 612 S.W.3d 398, 405-06 (Tex. App.-Houston [1st Dist.] 2020, pet. denied) (op. on reh'g) (citing In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002)).
Instead, in conducting legal sufficiency review in a parental termination case, we determine whether the evidence, viewed in the light most favorable to the finding, is such that a reasonable factfinder could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d at 266. "[L]ooking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so." Id. We disregard all evidence a reasonable factfinder could have disbelieved or found incredible. Id.
In factual sufficiency review in a parental termination case, we consider the entire record, including evidence both supporting and contradicting the finding, and determine whether a reasonable factfinder could have formed a firm conviction or belief about the truth of the allegation. In re C.H., 89 S.W.3d at 25-26. We "consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding." In re J.F.C., 96 S.W.3d at 266. "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.
B. Best interest finding
There is a strong presumption that the best interest of a child is served by keeping the child with a parent. See In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (citing Tex. Fam. Code § 153.131(b)). This is a rebuttable presumption. In re R.D.P., 526 S.W.2d 135, 137 (Tex. Civ. App.-Dallas 1975, no writ). Prompt and permanent placement of the child in a safe environment is also presumed to be in the child's best interest. In re J.C.N., No. 05-21-01163-CV, 2022 WL 1284169, at *7 (Tex. App.-Dallas Apr. 29, 2022, no pet.) (mem. op.).
"The presumption is based upon a logical belief that the ties of the natural relationship of parent and child ordinarily furnish strong assurance of genuine efforts on the part of the custodians to provide the child with the best care and opportunities possible, and, as well, the best atmosphere for the mental, moral and emotional development of the child." Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex. 1963).
We look to certain non-exclusive factors enumerated by the supreme court in Holley v. Adams in determining the child's best interest. 544 S.W.2d 367, 371-72 (Tex. 1976). These 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 individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. at 372.
Evidence is not required on all of these factors to support a best interest finding. In re S.R., 452 S.W.3d 351, 366 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). Put differently, the absence of evidence on some of these factors does not preclude a best interest finding, "particularly if undisputed evidence shows the parental relationship endangered the child's safety." In re N.T., 474 S.W.3d 465, 477 (Tex. App.-Dallas 2015, no pet.). Indeed, "evidence relating to one single factor may be adequate in a particular situation to support a finding that termination is in the best interests of the child." In re K.S., 420 S.W.3d 852, 855 (Tex. App.-Texarkana 2014, no pet.).
In its best interest determination, a trial court may infer that past endangering conduct may recur if the child is returned to the parent. See In re L. N.C. , 573 S.W.3d 309, 318 (Tex. App.-Houston [14th Dist.] 2019, pet. denied). Evidence relevant to § 161.001(b)(1) termination grounds may also be relevant to the question of the child's best interest. In re C.V.L., 591 S.W.3d 734, 753 (Tex. App.-Dallas 2019, pet. denied). However, the question of a child's best interest is not equivalent to a finding of endangerment; "'best interest' is a term of art encompassing a much broader, facts-and-circumstances based evaluation that is accorded significant discretion." In re Lee, 411 S.W.3d 445, 460 (Tex. 2013). We remain mindful that the Holley factors and the finding required by § 161.001(b)(2) is about the best interest of the child, not the best interest of the parent. See In re C.E.K., 214 S.W.3d 492, 498 (Tex. App.-Dallas 2006, no pet.).
III. Analysis
A. Best interest finding-Mother
1. The desires of S.O.
The child's desires-the first Holley factor-is generally considered neutral where, as here, the child did not testify. In re C.V. L., 591 S.W.3d 734, 754 (Tex. App.-Dallas 2019, pet. denied). However, other evidence presented at trial pertinent to this factor supported the trial court's finding. The CASA witness, who recommended termination and thought termination was in S.O.'s best interest, testified S.O. "made it clear that her wishes are consistent with CASA's recommendation." S.O.'s therapist testified S.O. told her that Mother and Father were "mean," and S.O. referred to Mother and Father's home as "the anger house," and her home with the Causeys as "the kindness house." When the therapist questioned S.O. about her visits with Mother and Father, S.O. was uninterested in talking about them. Mother testified she and S.O. had a good bond, and that they enjoyed their visits together.
2. The emotional and physical needs of, and danger to, S.O.
The second and third Holley factors are the emotional and physical needs of the child now and in the future, and the emotional and physical danger to the child now and in the future. We will consider these two factors together.
The evidence showed that S.O. had significant emotional and physical needs at the time of trial and will have those needs in the future. Two health professionals testified S.O. had post-traumatic stress disorder with dissociative features. The psychologist who evaluated S.O. said she needed continued therapy, specifically to treat her PTSD. Evidence showed S.O. may have lacked a normal bond with Mother and Father because S.O. exhibited signs of "disinhibited social engagement disorder." S.O.'s therapist testified S.O. needed continued play therapy. Evidence presented at trial showed that, at the time S.O. was removed from Mother and Father in 2020, S.O.'s weight was in the 23rd percentile and she would stash food, fearing it would be thrown away. Previously, Mother and Father were referred to the Department in 2016 when S.O. was not gaining weight. Evidence showed that, at the time of trial, having been in the care of the Causeys for nearly two years, S.O.'s weight had increased to the 49th percentile for her age group, she was receiving regular medical care, and she had a routine. Multiple witnesses testified S.O. regressed after visits with Mother and Father.
Evidence showed that Mother abused drugs, including methamphetamine, when S.O. was in her care and custody in their home. Mother tested positive for amphetamine, methamphetamine, marijuana, cocaine, and benzodiazepines in 2020. S.O. had previously tested positive for marijuana in 2018, and in 2020, she tested positive for amphetamine, methamphetamine, and marijuana. Mother stored meth in S.O.'s room, behind S.O.'s books, and in a pencil case or crayon box that S.O. could have found without any difficulty. Evidence showed that Mother's drug use was not isolated but had been an ongoing problem in her life.
There was also evidence presented that Mother engaged in assaultive conduct. Father told the police in 2020 that Mother's violence went back ten years, and he feared for S.O.'s safety. Mother was arrested for assault while she was responsible for S.O., and at the time, described the incident as normal. Additionally, evidence showed Mother had untreated mental health problems while caring for S.O., including being committed after she was found in a delusional state, stabbing walls in their home. When the Department toured the home after the 2020 assault, it was found to be unsuitable for raising a child, and S.O. appeared to be dirty and malnourished.
Mother presented significant evidence showing that she had improved from the position she was in when S.O. was removed. Mother completed the classes and programs required by the court in this case. She had stable housing and employment. Most importantly, she and others testified she had been sober for two years, had become deeply involved with AA, and was treating her mental health problems. Mother tested negative for drugs following July 2020.
However, the Department also presented evidence that Mother previously worked services in 2018 yet continued to have significant problems leading to this case; lied in her evaluations about her drug abuse and violent conduct; and generally minimized or did not understand her role in S.O.'s apparent trauma. See In re S.A.W., Jr., 131 S.W.3d 704, 709 (Tex. App.-Dallas 2004, no pet.) ("all of the Department's witnesses continued to express doubt that appellant had developed a real understanding about which of her behaviors and attitudes posed a danger to [the child] and ultimately led to his removal").
No evidence was presented that S.O.'s foster family had done anything to endanger S.O. emotionally or physically. On the contrary, the evidence showed the Causeys were meeting S.O.'s needs and she was thriving in their care.
3. The parental abilities of those seeking custody and their plans for S.O., and the stability of the home or proposed placement
Mother presented evidence she was better positioned to care for S.O. than she was in 2020. She testified she would keep S.O. in any therapy she needed and any activities she enjoyed. Mother had learned through the services she worked in this case parenting skills she believed she could implement if S.O. were returned to her. She had stable housing and employment and was independent of Father. But evidence also showed that when S.O. was in Mother's care, S.O. lived in squalor, had no concept of bedtime or mealtimes, and had difficulty communicating basic needs. See In re C.C., No. 05-20-01056-CV, 2021 WL 1573062, at *7 (Tex. App.-Dallas Apr. 22, 2021, pet. denied) (mem. op.) ("[A] parent's past neglect or past inability to meet the physical and emotional needs of the children are also relevant" in determining parental abilities.). S.O. exhibited sexualized behavior, she had been given sexualized dolls by Mother or Father, and engaged in violent and disturbing play.
The Causeys wanted to adopt S.O. in the event of termination. Evidence showed S.O. was flourishing in their care, and they planned to continue S.O. in therapy and support her in whatever other ways necessary. Both foster parents had stable jobs, and they had been married for fourteen years.
5. Any acts or omissions of the parent which may indicate the parent-child relationship is improper
The facts discussed above are also relevant to the eighth Holley factor: any acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one. Most importantly, evidence showed Mother not only used drugs with S.O. in the home but stored meth in S.O.'s room where S.O. could have found it. Evidence showed Mother engaged in violent acts with S.O. in the home.
Considering the whole record, in the light most favorable to the best interest finding, we conclude a reasonable factfinder could have formed a firm belief or conviction that terminating Mother's parental rights to S.O. was in S.O.'s best interest. The Department presented significant evidence that S.O. did not want to return to Mother; that Mother, when she had custody of S.O., engaged in endangering conduct, which the trial court could have inferred would recur, just as it did in 2020 after Mother had previously worked services with the Department; that Mother's parental abilities were lacking; and that Mother committed numerous acts indicating her parent-child relationship with S.O. was improper. On the other hand, evidence showed S.O.'s foster family was able to care for S.O. and meet her physical and emotional needs, was not a danger to S.O.'s physical and emotional well-being, and provided a stable, permanent plan for S.O. in their wish to adopt. Accordingly, we conclude the evidence is legally sufficient to support the trial court's best interest finding.
Moreover, we conclude that, considering the entire record, including evidence both supporting and contradicting the best interest finding, a reasonable factfinder could have formed a firm conviction or belief that terminating Mother's parental rights was in S.O.'s best interest. The evidence contradicting the court's finding is the evidence showing that, since S.O.'s removal, Mother worked her services successfully, stopped using drugs, and took her sobriety and mental health seriously. Though significant, ultimately we do not think this evidence "is so significant that a factfinder could not reasonably have formed a firm belief or conviction" that termination was in S.O.'s best interest. The evidence showed that Mother's endangering conduct in 2020 happened less than two years after Mother had successfully worked services for the Department's prior intervention for domestic violence. A reasonable fact finder could have determined that this recurrence called into question Mother's ability, despite recent improvements, to meet S.O.'s physical and emotional needs in the future; to avoid putting S.O. in physical and emotional danger; and to maintain a stable and safe home. See In re N.T., 474 S.W.3d 465, 479 (Tex. App.-Dallas 2015, no pet.) ("[R]ecent improvement alone is not sufficient to avoid termination of parental rights."). Thus, we conclude the evidence is factually sufficient to support the trial court's best interest finding.
This is not a case like, for example, In re C.V.L., 591 S.W.3d 734, 757 (Tex. App.-Dallas 2019, pet. denied), where we found factually insufficient evidence to support the best interest finding when the Department relied solely on a parent's positive drug tests to support termination, and the parent had completed services, attended NA, maintained his sobriety, and "had taken many positive steps to create a support system around himself away from Mother and the negative influences of drugs and alcohol." In that case, there was "no evidence or suggestion in the record that Father engaged in assaultive conduct or ever intentionally placed C.V.L. in danger[,]" and there was "no evidence or suggestion in the record that Father ever used drugs in the presence of C.V.L. or allowed C.V.L. to be in a location where drugs were present." Id. at 758. Here, among other things, there is such evidence showing Mother used drugs while S.O. was present in the home and intentionally left drugs in S.O.'s room. S.O. herself tested positive for drugs. Moreover, other evidence showed Mother was a victim and perpetrator of domestic violence in S.O.'s presence. The court could have reasonably inferred S.O.'s PTSD resulted from all of these things. We overrule Mother's first issue.
B. Best interest finding-Father
We separately analyze the evidence relating to the trial court's finding that termination of Father's parental rights was in S.O.'s best interest. However, we will refer below to some of the above analysis relating to Mother given the parallel nature of much of the evidence relating to Father.
1. The desires of S.O.
As above, we note that S.O. did not testify. However, the other evidence presented at trial pertinent to this factor recounted above applied equally to Father as to Mother. The CASA witness testified S.O. "made it clear that her wishes are consistent with CASA's recommendation" of termination. When the CASA witness told S.O. she might return to Father, S.O. panicked, looked like she was about to cry, and said, "I already told you they are mean to me." S.O.'s therapist testified S.O. told her that Mother and Father were "mean," and S.O. referred to her home with them as "the anger house," and her home with the Causeys as "the kindness house." When the therapist questioned S.O. about her visits with Mother and Father, S.O. was uninterested in talking about them.
2. The emotional and physical needs of, and danger to, S.O.
The second and third Holley factors are the emotional and physical needs of the child now and in the future, and the emotional and physical danger to the child now and in the future. The above-described evidence about S.O.'s considerable physical and emotional needs is relevant here. There was evidence presented showing that when S.O. was in Father's care previously, she had failed to thrive physically, and had lived in a chaotic environment where violence and drugs were present.
Evidence was presented showing Father was arrested for assaulting Mother in 2018 after she-who described herself as terrified and Father as a monster-told police he assaulted her in the car, with S.O. in the backseat, and had also assaulted Mother a couple of days before. At trial, Father said on this occasion he had slapped Mother once, but the police officer testified that he observed one of Mother's eyes to be bruised, and the other was red and swelling. At trial, Mother said there were additional family violence incidents after the one in 2018. In 2020, at the time of removal in this case, Mother told the Department that Father was violent towards her.
The Department presented evidence showing Father had a long history of drug use. In 2018, he tested positive for marijuana, and his urinalysis test in 2020 was positive for alprazolam, marijuana, and methadone, and his hair-strand test was positive for amphetamine, methamphetamine, cocaine, and marijuana. When asked at trial if he was using meth in July 2020 when Mother was, Father said, "I've been informed by my attorney to invoke my Fifth Amendment right." Father admitted he struggled most with opiates. Evidence showed Father allowed S.O. to remain with Mother despite her violent behavior and drug use, including allowing her to live in a room where meth was stored. He told the police Mother's violence was not sporadic but went back "about ten years."
Like Mother, Father presented compelling evidence that he made significant progress in his life after S.O.'s removal. He completed the services he was required to complete, sometimes doing much more than asked. Father quit taking Xanax in 2022 and methadone in 2021, was active in NA, and saw a counselor twice a month. Father tested negative for drugs after the initial positive test in this case.
But also like Mother, the Department presented evidence that Father previously successfully worked services in 2018 but still put S.O. in the position she was in in July 2020, and did not admit his drug abuse in his evaluations, which led to a delay in treatment of a year. And, as noted above, no evidence was presented that S.O.'s foster family had done anything to endanger S.O. emotionally or physically; instead, the evidence showed the Causeys were meeting S.O.'s needs, and she was doing well in their care.
4. The parental abilities of those seeking custody and their plans for S.O., and the stability of the home or proposed placement
Father also presented evidence he, should S.O. be returned to him, could be a better parent to S.O. than he was previously; he had learned new skills in parenting class he could implement. But, as discussed above, evidence also showed that when S.O. was in his care, S.O. lived in squalor, had no concept of bedtime or mealtimes, and had difficulty communicating basic needs. See In re C.C., 2021 WL 1573062, at *7 ("a parent's past neglect or past inability to meet the physical and emotional needs of the children are also relevant" in determining parental abilities). Further, Father still lived in the same home with his father that the police had previously described as appearing to be lived in by hoarders and that the Department investigator described as "not livable." S.O. exhibited sexualized behavior, she had been given sexualized dolls by Mother or Father, and engaged in violent and disturbing play. And on the other hand, evidence showed S.O. Is flourishing in the care of the Causeys, who plan to continue S.O. in therapy, support her in whatever other ways necessary, and want to adopt her. Both foster parents have stable jobs, and they had been married for fourteen years at the time of trial.
5. Any acts or omissions of the parent which may indicate the parent-child relationship is improper
The facts discussed above are also relevant to the eighth Holley factor: any acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one. Most importantly, evidence showed Father allowed S.O. to live in a home where drugs were abused and in a room where meth was kept and accessible to her. Evidence showed Father engaged in violent acts in S.O.'s presence.
Considering the whole record, in the light most favorable to the best interest finding, we conclude a reasonable factfinder could have formed a firm belief or conviction that terminating Father's parental rights to S.O. was in S.O.'s best interest. The Department presented significant evidence that S.O. did not want to return to Father; that Father, when he had custody of S.O., engaged in endangering conduct and allowed S.O. to remain in a dangerous environment, which the trial court could have inferred would recur, as it did in 2020 after Father had previously worked services with the Department; that Father's parental abilities were lacking; and that Father committed acts and omissions indicating his parent-child relationship with S.O. was improper. On the other hand, evidence showed S.O.'s foster family was able to care for S.O. and meet her physical and emotional needs, was not a danger to S.O.'s physical and emotional well-being, and provided a stable, permanent plan for S.O. in seeking adoption. Accordingly, we conclude the evidence is legally sufficient to support the trial court's best interest finding as to Father.
We also conclude that, considering the whole record, including evidence both supporting and contradicting the best interest finding, a reasonable factfinder could have formed a firm conviction or belief that terminating Father's parental rights was in S.O.'s best interest. The evidence contradicting the court's finding is the evidence showing that Father worked the required services and more, stopped abusing drugs, and took sobriety and mental health seriously. As in the case of Mother, though this evidence is significant, we do not think this evidence "is so significant that a factfinder could not reasonably have formed a firm belief or conviction" that termination of Father's rights was in S.O.'s best interest. The evidence showed that Father's conduct in 2020 happened less than two years after he had successfully worked services for the Department's prior intervention for domestic violence. A reasonable fact finder could have determined that this recurrence called into question Father's ability, despite recent improvements, to meet S.O.'s physical and emotional needs in the future; to avoid putting S.O. in physical and emotional danger; and to maintain a stable and safe home. See In re N.T., 474 S.W.3d at 479 ("[R]ecent improvement alone is not sufficient to avoid termination of parental rights."). Thus, we conclude the evidence is factually sufficient to support the trial court's best interest finding as to Father.
As above, we observe that these facts are unlike cases like In re C.V.L., 591 S.W.3d at 757-58, where we found factually insufficient evidence to support the best interest finding, but observed that there was "no evidence or suggestion in the record that Father engaged in assaultive conduct or ever intentionally placed C.V.L. in danger[,]" and there was "no evidence or suggestion in the record that Father ever used drugs in the presence of C.V.L. or allowed C.V.L. to be in a location where drugs were present." There was evidence here that Father had a history of drug abuse, domestic violence, and failure to protect S.O. from Mother's drug abuse, and evidence that six-year-old S.O. had PTSD as a result of, in part, Father's conduct. Father's sole issue is overruled.
C. Conservatorship
In a second issue, Mother argues that the trial court abused its discretion by appointing the Department as sole managing conservator because the evidence was insufficient to support the termination of Mother's parental rights. But, as described above, we reject Mother's argument regarding the sufficiency of the evidence supporting termination. As we have explained previously,
In the case before us, "we have overruled appellant's challenge to the termination, and the trial court's appointment of the Department as sole managing conservator may be considered a 'consequence of the termination pursuant to Family Code section 161.207.'" Further, Mother "provides no authority for the proposition that she is a 'suitable, competent adult' as contemplated by section 161.207(a) or that the presumption in section 153.131(a) applies to a parent whose parental rights have been terminated under Chapter 161." Accordingly, Mother's challenge to the trial court's appointment of
the Department as sole managing conservator, rather than Mother, "is without merit."In re N.T., 474 S.W.3d at 481 (internal citations omitted). We overrule Mother's second issue.
IV. Conclusion
Having overruled Mother's two issues and Father's sole issue, we affirm the trial court's final order terminating Mother's and Father's parental rights to S.O.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered.