In the Interest of A.S.-V.M., a Child v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00296-CV

IN THE INTEREST OF A.S.-V.M.,
A CHILD,

From the 82nd District Court
Robertson County, Texas
Trial Court No. 22-04-21441-CV

MEMORANDUM OPINION

Mother and Father appeal the trial court’s order terminating their parental rights

to A.S.-V.M. Both parents challenge the legal and factual sufficiency of the evidence to

support the finding that termination of their parental rights was in the child’s best

interest.1 We affirm the judgment of the trial court.

1 In a footnote, Mother makes the conclusory statement that she “disputes that the evidence is legally or
factually sufficient to support a finding under [Texas Family Code Sections 161.001(b)(1)(D) and
(b)(1)(E)]...” See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (b)(1)(E). She briefly explains that she does not
raise sufficiency challenges to Grounds D and E as issues on appeal because only one predicate ground is
required to support termination, and she concedes that the evidence is sufficient to support termination of
her parental rights under Section 161.001(b)(1)(O). See Id. § 161.001(b)(1)(O). We note that the Texas
Supreme Court has held that due process demands that we review the evidence supporting the findings
underlying Grounds D or E when they are challenged on appeal even if we were to find that the evidence
to support one of the other statutory grounds for termination was sufficient. Interest of N.G., 577 S.W.3d
230 (Tex. 2019). However, the ruling in N.G. mandates review of the sufficiency of the evidence underlying
Background

The Texas Department of Family and Protective Services (“the Department”)

received a report that A.S.-V.M. was present in her home when one person threw bleach

in another person’s face. Mother and A.S.-V.M. lived in the home with several other

individuals. Father did not live in the home and was incarcerated at the time of the

incident. During its investigation, the Department learned that Mother was currently on

probation for a felony drug offense. At the suggestion of her probation officer, Mother

was scheduled to check into an inpatient drug rehab facility to address her marijuana use.

Because Mother believed that the rehab facility would not accept her for inpatient

treatment based solely on marijuana use, she told the Department that she planned to use

methamphetamine the next day, prior to checking into the facility, to ensure her

admittance.

The Department took emergency custody of A.S.-V.M. and filed a petition to

terminate Mother and Father’s parental rights. After a bench trial, the trial court

terminated Mother’s parental rights under Texas Family Code Sections 161.001(b)(1)(D),

(b)(1)(E), and (b)(1)(O), terminated Father’s parental rights under Texas Family Code

Grounds D and E only “[w]hen a parent has presented the issue on appeal.” Id. at 235. Mother specifically
chose not to present the issue of sufficiency of the evidence supporting Grounds D and E, though her
reasoning behind her decision is incorrect. Further, her footnote contains no substantive analysis, citations
to the record, or supporting legal authority. See TEX. R. APP. P. 38.1(i). We “know of no authority obligating
us to become advocates for a particular litigant through performing their research and developing their
argument for them,” and we will not entertain issues that are inadequately briefed. See Id.; Tello v. Bank
One, N.A., 218 S.W.3d 109,116 (Tex. App.—Houston [14th Dist. 2007, no pet.); see also Fredonia State Bank v.
Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283-84 (Tex. 1994).

In the Interest of A.S.-V.M., a Child Page 2
Sections 161.001(b)(1)(D), (b)(1)(E), and (b)(1)(Q), and found that termination of Mother

and Father’s parental rights was in the best interest of A.S.-V.M. See TEX. FAM. CODE ANN.

§§ 161.001(b)(1)(D), (b)(1)(E), (b)(1)(O), (b)(1)(Q), (b)(2). Mother and Father timely filed

separate notices of appeal, and the trial court filed findings of fact and conclusions of law.

STANDARD OF REVIEW

In conducting a legal sufficiency review in a parental termination case:

[A] court should look at all the evidence in the light most favorable to the
finding to determine whether a reasonable trier of fact could have formed
a firm belief or conviction that its finding was true. To give appropriate
deference to the factfinder’s conclusions and the role of a court conducting
a legal sufficiency review, looking 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. A corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could have disbelieved
or found to have been incredible. This does not mean that a court must
disregard all evidence that does not support the finding. Disregarding
undisputed facts that do not support the finding could skew the analysis of
whether there is clear and convincing evidence.

In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d

256, 266 (Tex. 2002)) (emphasis in original).

In a factual sufficiency review, a court of appeals must give due consideration to

evidence that the factfinder could reasonably have found to be clear and convincing. Id.

[T]he inquiry must be “whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State's
allegations.” A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that

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disputed evidence in favor of its finding. 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. (footnotes and citations omitted); see In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

APPLICABLE LAW

There is a strong presumption that a child's best interests are served by

maintaining the parent-child relationship. Jordan v. Dossey, 325 S.W.3d 700, 729 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). However, while parental rights are of

constitutional magnitude, they are not absolute. Id. The non-exhaustive list of factors

that have been consistently considered in determining the best interest of the child were

set out in the Texas Supreme Court’s opinion, Holley v. Adams, 544 S.W.2d 367, 371-72

(Tex. 1976). These factors are: (1) the child's wishes; (2) the child’s emotional or physical

needs now and in the future; (3) the emotional or physical danger to the child now and

in the future; (4) the parenting abilities of the parties seeking custody; (5) programs

available to help those parties; (6) plans for the child by the parties seeking custody; (7)

the stability of the proposed placement; (8) the acts or omissions of the parent that

indicate that the existing parent-child relationship is not proper; and (9) any excuses for

the acts or omissions of the parent. See Id. The Holley factors focus on the best interest of

the child, not the best interest of the parent. In re S.L., 421 S.W.3d 34, 38 (Tex. App.—

Waco 2013, no pet.). There is no requirement that every factor must be proved as a

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condition precedent to parental termination, and the absence of evidence about some

factors does not preclude a factfinder from reasonably forming a strong conviction that

termination is in the child's best interest. See In re C.H., 89 S.W.3d at 27.

DISCUSSION

Both parents contend that evidence is insufficient to sustain a best-interest finding

if alternatives to termination exist (e.g., naming the parents as non-managing

conservators) and those alternatives are not expressly considered by the trial court.

However, a separate consideration of alternatives to termination is not required, and

available alternatives to termination do not preclude a finding that termination is in the

child's best interest. See T.W. v. Tex. Dept. of Fam. & Prot. Servcs., 431 S.W.3d 645, 651 (Tex.

App.—El Paso 2014, no pet.). We therefore review the record to determine whether the

evidence was legally and factually sufficient to support the trial court’s best-interest

finding as to each parent. See TEX. FAM. CODE ANN. § 161.001(b)(2).

Sufficiency of the Evidence Supporting Mother’s Best-Interest Finding

The trial court found that Mother used marijuana during her pregnancy with A.S.-

V.M and that Mother used methamphetamine before and during this case. An admission

of or test result indicating the use of illegal drugs by an expectant mother during her

pregnancy is a fact from which a factfinder could reasonably find that she poses a danger

to the emotional and physical well-being of her child now and in the future. See In re

A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Further, a

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parent’s decision to use illegal drugs while the termination suit is pending, when she

knows she is at risk of losing her child, is relevant in determining whether a parent poses

a present or future risk of physical or emotional danger to the child. See In re S.N., 272

S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.). Mother admitted to marijuana use during

her pregnancy and A.S.-V.M. tested positive for marijuana at birth. Mother testified that

she did not believe marijuana use during pregnancy was dangerous to the child and

admitted to continued marijuana use during the pendency of the case.

In addition to her marijuana use, Mother struggled with methamphetamine

addiction. Her admission that she planned to use methamphetamine precipitated the

Department’s emergency removal of A.S.-V.M., and Mother tested positive for

methamphetamine approximately two months before trial. Though Mother asserted at

trial that she had not used methamphetamine since her most recent positive drug test,

evidence of a recent turnaround should be determinative only if it is reasonable to

conclude that rehabilitation, once begun, will surely continue. See In re M.G.D., 108

S.W.3d 508, 514 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The record before

us does not provide such assurance. Mother admitted that she relapsed on

methamphetamine multiple times during the pendency of this case. According to the

Department, her first documented relapse was shortly after her release from the first

inpatient drug rehab facility. Mother took the initiative to check herself back into rehab,

but relapsed again after she was released. Despite her rehabilitation efforts, Mother

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persisted in using drugs to self-medicate, knowing that her parental rights to her child

were in jeopardy.

The trial court also found that Mother did not maintain a safe and stable home. A

parent’s drug use is a condition indicative of instability in the home environment because

it exposes the child to the possibility that the parent may be impaired or imprisoned. See

In re J.F.-G., 612 S.W.3d 373, 386 (Tex. App.—Waco 2020), aff'd, 627 S.W.3d 304 (Tex. 2021).

At trial, Mother acknowledged that it would be difficult for the court to trust that she

would not use drugs again. See In re D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011,

no pet.) (Noting that a trial court may measure a parent’s future conduct by her past

conduct when determining the best interest of the child.). When asked if she was

requesting the trial court to return A.S.-V.M. to her care, Mother testified that she wanted

A.S.-V.M. to go to her mother or mother-in-law “until we can get our stuff together.”

Further, Mother planned to live in the same home from which A.S.-V.M. was removed

when this case was initiated. Even after A.S.-V.M.’s removal, the Department noted a

consistent smell of marijuana while standing on the front porch that kept the caseworker

from entering the home. While Mother testified that she would be willing to move to a

different residence, she did not provide any specific alternate living arrangements she

had considered.

Finally, when children are too young to express their desires, the factfinder may

consider that the children have bonded with the caregiver, are well-cared for by them,

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and have spent minimal time with a parent. Interest of J.D., 436 S.W.3d 105, 118 (Tex. App.

– Houston [14th Dist.] 2014, no pet.). At the time of trial, A.S.-V.M. was three years old.

Mother had no contact with A.S.-V.M. for approximately one year. The evidence suggests

that Mother had not participated in any visitation with A.S.-V.M. because she did not

provide two clean drug tests. Meanwhile, A.S.-V.M. had been in her familial placement

for approximately six months and referred to her caregivers as “mom” and “dad.” The

Department testified that A.S.-V.M. had been in “significant therapies, from the trauma

she’s endured” and that the current caregivers were appropriately addressing her

emotional needs and behavioral concerns.

Considering the evidence pursuant to the standards listed above, we find that the

evidence was legally and factually sufficient for the trial court to have found that

termination of Mother’s parental rights was in A.S.-V.M.’s best interest. We overrule

Mother’s sole issue on appeal.

Sufficiency of the Evidence Supporting Father’s Best-Interest Finding

Evidence relating to the predicate grounds under Texas Family Code Section

161.001(b)(1) may be relevant to determining the best interest of the children. See In re

C.H., 89 S.W.3d at 28; See TEX. FAM. CODE ANN. § 161.001(b)(1). The trial court found

Section 161.001(b)(1)(D) (knowingly placed or knowingly allowed the child to remain in

conditions or surroundings which endanger the physical or emotional well-being of the

child) and Section 161.001(b)(1)(E) (engaged in conduct or knowingly placed the child

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with persons who engaged in conduct which endangers the physical or emotional well-

being of the child) as two of the predicate grounds supporting Father’s termination of

parental rights. See TEX. FAM CODE ANN. §§ 161.001(b)(1)(D), (b)(1)(E). A parent

endangers his child by accepting the endangering conduct of other people. See Interest of

L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *20 (Tex. App.—Houston [1st Dist.] Apr.

9, 2019, pet. denied) (mem. op.). This includes a parent's exposure of his child to illegal

narcotics use by a person in the child's home. Id. Father testified that he often used

methamphetamine in his relationship with Mother. Father also testified that he believed

it was dangerous for Mother to use any type of drug while pregnant with A.S.-V.M.

Nonetheless, he admitted that he and Mother were using marijuana together – knowing

she was pregnant with A.S.-V.M. – to wean themselves off of methamphetamine. He was

aware that A.S.-V.M. tested positive for marijuana at birth. Although he knew that

Mother was still struggling with drug addiction when he went to prison eight months

later, Father left A.S.-V.M. in Mother’s care. See In re J.J., 07-13-00117-CV, 2013 WL

4711542, at *9 (Tex. App.—Amarillo Aug. 29, 2013, no pet.) (mem. op.) (considering

evidence that a parent left the child in the care of a known drug abuser in evaluating

sufficiency of the evidence supporting a best-interest finding).

A parent's imprisonment can negatively impact a child's emotional well-being. See

In re J.F.-G., 612 S.W.3d 373 at 388. A parent's history and inability to maintain a lifestyle

free from arrests and incarcerations are relevant to the best-interest determination. See In

In the Interest of A.S.-V.M., a Child Page 9
re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.). Father’s criminal

history began when he was a juvenile and spanned almost twenty years. In 2010, Father

served almost all of his prison sentence on an Aggravated Robbery charge after failing to

successfully complete his deferred adjudication probation. See TEX. PENAL CODE ANN. §

29.03. The trial court also found Section 161.001(b)(1)(Q) of the Texas Family Code as a

predicate ground supporting Father’s termination. See TEX. FAM. CODE ANN. §

161.001(b)(1)(Q) (knowingly engaged in criminal conduct that resulted in the parent’s

conviction of an offense and imprisonment and inability to care for the child for not less

than two years from the date the petition is filed). In October of 2020, Father was

sentenced to eight years in prison on an Injury to the Elderly charge. See TEX. PENAL CODE

ANN. § 22.04. At the time of trial, Father had been incarcerated for the majority of A.S.-

V.M.’s life, was still incarcerated on the Injury to the Elderly charge, and had no

relationship with A.S.-V.M. since she was eight months old.

A parent’s violent criminal conduct after the child is born is also relevant in

reviewing a best-interest finding. See Interest of M.T.R., 579 S.W.3d 548, 568-69 (Tex.

App.—Houston [14th Dist.] 2019, pet. denied). Father’s Injury to the Elderly charge

stemmed from Father striking his elderly father-in-law twice above the eye with his fist.

The altercation occurred in the parking lot of the hospital while waiting for A.S.-V.M. to

be discharged after she was born. Father admitted he had been drinking prior to the

dispute in an attempt to avoid methamphetamine relapse. Additionally, a parent’s abuse

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of the other parent can be used to support a finding of endangerment and is also relevant

to determining the child’s best interest. See In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—

Eastland 2010, pet. denied). Father was arrested for misdemeanor assault family violence

against Mother at the same time he was arrested for assaulting his father-in-law.

Finally, the trial court found that Father could not provide A.S.-V.M. with a safe

and stable home. Father testified that he expected to be granted parole on his Injury to

the Elderly charge in January 2024 because he would have served approximately half of

his prison sentence at that time. However, a parent’s testimony about parole eligibility,

even if undisputed, is generally not binding on a factfinder because parole decisions are

inherently speculative and rest entirely in the parole board’s discretion. See Interest of

J.M.G., 608 S.W.3d 51, 56 (Tex. App.—San Antonio 2020, pet. denied). Father had already

been denied parole twice on this charge, and he agreed with the trial court that he was

unable to provide for A.S.-V.M. while he was incarcerated. Although his mother, P.L.,

testified she was willing to care for A.S.-V.M. until Father’s release from prison,

permanence is of paramount importance in considering a child’s present and future

needs, and prompt and permanent placement of the child in a safe environment is

presumed to be in the child's best interest. See In re M.C.T., 250 S.W.3d 161, 170 (Tex.

App.—Fort Worth 2008, no pet.); See Interest of B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El

Paso 2015, no pet.). A.S-V.M. had been safe and bonded with her court-ordered family

placement for six months. Her attorney ad litem argued that A.S.-V.M. was doing

In the Interest of A.S.-V.M., a Child Page 11
extremely well in her placement and that it would not be in her best interest to be moved

to the home of another caregiver.

The trial court’s finding that termination of Father’s parental rights is in A.S.-

V.M.’s best interest was supported by legally and factually sufficient evidence. We

overrule Father’s sole issue on appeal.

Conclusion

Having overruled Mother’s and Father’s issues on appeal, we affirm the judgment

of the trial court.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed March 28, 2024
[CV06]

In the Interest of A.S.-V.M., a Child Page 12