In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-24-00290-CV ________________
IN THE INTEREST OF A.D.-P., J.E.-D., and S.E.-D. ________________________________________________________________________
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 23-06-08814-CV ________________________________________________________________________
MEMORANDUM OPINION
Following a bench trial, K.D.-P. (“Mother”) appeals the trial court’s order
terminating her parental rights to her minor children, A.D.-P. (“Amanda”), J.E.-P.
(“Jacob”), and S.E.-P. (“Sue”) based on Texas Family Code subsections
161.001(b)(1)(D), (E), (O) and a finding that termination was in the children’s best
interest.1 See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (2). The trial court
also terminated the parental rights of Amanda’s alleged father, “Justin,” and Jacob
1In parental rights termination cases, to protect the identity of the minors, we
refer to the children by a pseudonym or initials and family members by their relationships to the children. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2). At the time of the trial the children were ages 10, 9, and 5. 1 and Sue’s father, “Oliver,” but they are not parties to this appeal. In four issues,
Mother challenges the legal and factual sufficiency of the evidence supporting the
termination grounds specified in sections 161.001(b)(1)(D) and (E) and that
termination was in the children’s best interest. See id. § 161.001(b)(1)(D), (E), (2).
Mother also challenges the trial court’s appointment of the Department of Family
and Protective Services (“the Department”) as permanent managing conservator.
Mother does not challenge the termination based on predicate ground O, which is
failure to follow a court-ordered service plan. See id. § 161.001(b)(1)(O). We affirm.
BACKGROUND AND FACTS LEADING TO REMOVAL
In June 2023, the Department filed its Original Petition for Protection of a
Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship naming Amanda, Jacob, and Sue as the subjects of the suit and seeking
to terminate Mother’s and the two fathers’ parental rights. The Department included
Investigator Rebecca Owen’s (“Owen”) Affidavit in Support of Removal with the
Petition. Owen outlines a report they received in May 2023 regarding alleged sexual
abuse of Amanda by Oliver. Owen explains that Mother and other family members
discussed what they would report about Oliver after they observed injuries to
Amanda’s “anal area.” The report also included information that Oliver and Mother
use methamphetamines, and Oliver is Mother’s drug dealer.
2 Owen states that two days after the initial report, the Department received
another report alleging sexual abuse of Amanda by Oliver and additional concerns
that Amanda was sexually abused by Mother’s ex-boyfriend, Justin. Owen explains
that the report alleges Amanda disclosed being touched inappropriately by three of
Justin’s friends and that Oliver and Justin “have both exposed their penis to the
child[.]” Owen notes that “[t]here are concerns noted for [Mother] believing the
outcry of the child.”
Owen asserts that in June 2023, the Department received another report that
Mother, Sue, and Jacob were seen walking down the street while Mother was
intoxicated and that they would have had to cross the road at some point, exposing
them to possible injury. According to the report, law enforcement took Mother and
children to the address on the report.
Owen explains that on May 15, 2023, all three children underwent forensic
interviews, and the main outcry of abuse was Amanda’s, which led to concerns for
the younger, more vulnerable children. During her interview, Amanda made
disclosures of sexual abuse by multiple men, including Oliver and Justin. The
affidavit reveals the sexual abuse allegations Amanda described in her interview by
Oliver, Justin, and Justin’s brothers. Owen also states that Amanda told the
interviewer that Oliver “uses a dollar bill or straw to put the white stuff in his nose.”
Owen describes Amanda saying she saw Justin touch Sue inappropriately. Owen
3 avers that Amanda told investigators she reported the sexual abuse by Justin to
Mother, who said she would call the police but never did and that Mother confronted
Justin, who denied the allegations.
Owen states in her affidavit that on May 15, 2023, she and Special Investigator
Daniel Kingsley interviewed Mother, who denied knowing about the sexual abuse
before Sunday. Mother told them that Amanda “began talking about being touched
by [Oliver] and that her anus was sore and burning[,]” and “that she saw [Amanda’s]
anus to be red with cut marks.” Mother said “law enforcement was called, and all
three children had SANE exams[,]” and that the “children would not have contact
with [Oliver] or [Justin]” while the investigation was pending. Owen also discusses
a prior warrant out of Florida for Mother pertaining to a child and a family services
case there where she refused to cooperate and left the state prior to the criminal court
date.
Owen also describes conversations she had with Detective Ramon Ramos
about his contact with Mother. Ramos told Owen that he met with Mother, who
denied that Amanda ever disclosed abuse to her and denied that Amanda showed her
a video of Justin abusing her. Mother admitted to Ramos that Oliver uses marijuana
and “crystal meth.”
The Affidavit also described Mother’s history with the Department beginning
in 2021 involving allegations that Mother and Justin engaged in drug use, excessive
4 drinking, and Mother took Amanda to the emergency room for suspected sexual
abuse. Since Mother and Justin refused to cooperate with drug testing, that case was
ruled “unable to determine.” From September 2022 through February 2023, there
were concerns of neglect by Mother due to excessive drinking and erratic behavior
while caring for the children and complaints that she was walking on a highway
ramp with the children while under the influence.
Owen concludes her Affidavit by asking that the Department be appointed the
children’s temporary managing conservator given Mother’s demonstrated “inability
to protect her children from people who have been abusive and has continued to
place her children in dangerous situations while under the influence.” On June 20,
2023, the trial court signed an Order for Protection of a Child in an Emergency,
appointing the Department as the children’s temporary sole managing conservator.
TRIAL EVIDENCE 2
Mother appeared at trial both days with her court-appointed counsel and an
interpreter.
Testimony of Investigator, Rebecca Owen
CPS Investigator Owen testified that she was assigned the case in May 2023,
when the case began. Owen said that on May 15, 2023, they received a call to
2We limitour discussion of the trial evidence relevant to the challenged grounds on appeal. See Tex. R. App. P. 47.1. 5 investigate allegations that the oldest child, Amanda, had been sexually abused. She
contacted the family that day, and all three children underwent forensic interviews
at Children’s Safe Harbor. When she met Mother, Owen said that Mother described
a prior incident that occurred in Florida where she was walking down a freeway with
the children while intoxicated. On May 15, Mother also told Owen that Amanda
complained to her about sexual abuse. Mother also told her a couple of days later,
while investigating, they received a second call relaying the same sexual abuse
allegations. Owen explained that they were still investigating when they received a
third call on June 19, 2023, alleging neglectful supervision by Mother and
specifically that she was walking down the highway with the children in the middle
of the night while intoxicated. Mother told Owen that she left a get-together where
she had been drinking and was walking down the highway, but a sheriff’s deputy
stopped her and brought her home. She said that Mother admitted having drug and
alcohol problems.
As to the sexual abuse allegations by Amanda, Owen testified that after the
children’s forensic interviews on May 15, 2023, Mother was protective. At the end
of that day, they released the children into Mother’s care, and they were ultimately
removed on June 20, 2023. In that intervening month, Owen continued her
investigation by speaking with Oliver, Mother, and law enforcement.
6 Owen testified that she interviewed Oliver, who is Jacob’s and Sue’s father.
Oliver told Owen there were multiple domestic violence incidents between him and
Mother that occurred with the children present. Oliver told Owen that he used
methamphetamines. Oliver did not offer specifics of Mother’s drug use, but he
expressed concerns about her alcohol and drug use.
Owen testified she visited the home, a two-bedroom trailer, which she
described as “pretty empty[]” with furniture only in one bedroom. She explained
there was not much food in the home, and she was concerned the children did not
have enough to eat. At the time, the children lived in the trailer with Mother and her
boyfriend, who was covering all the expenses.
Owen testified that CPS removed the children, because they learned later in
the investigation that Mother was not protective of them regarding the sexual abuse
and due to the neglectful supervision allegations. She explained the lack of
protectiveness, coupled with Mother being found intoxicated with the children in a
public place were the reasons for removal.
Testimony of Forensic Interviewer, Kelly Garcia
Kelly Garcia (“Garcia”) is a bilingual forensic interviewer for Children’s Safe
Harbor who testified at trial. Garcia testified that she interviewed Amanda. Garcia
described her educational background and training, then described the protocols
involved in conducting forensic interviews of children. Garcia testified that she
7 followed those protocols when interviewing Amanda and noted that she has
conducted over 2,000 interviews.
Garcia explained that she interviewed Amanda on May 15, 2023, for two
hours and twenty-four minutes. Garcia testified that during the interview, Amanda
made outcries of abuse, which Garcia characterized as “offenses.” Garcia noted that
Amanda made eleven outcries during the interview. Garcia testified that Amanda
talked about different offenses with multiple perpetrators, and the first perpetrator
was Oliver. Garcia also relayed in detail Amanda’s allegations of the various ways
Oliver sexually assaulted her. Garcia explained that Amanda related other
allegations against Oliver during the interview, but Amanda could not provide a
timeline.
During the interview, Amanda also described multiple sexual offenses
committed against her by Justin. Garcia testified that Amanda described Justin
sexually assaulting her in a bathroom upstairs and described him sexually assaulting
her on multiple occasions in multiple ways. She told Garcia that Justin assaulted her
on one occasion after Mother left for the store and another time while Mother “was
downstairs cooking sausage.” Amanda also told Garcia that Justin’s two brothers
sexually abused her, one whom she described as “skinny” and the other as “fat.”
Amanda described one instance to Garcia where Justin and his skinny brother
assaulted her at the same time “while fat brother was present[,]” but they “stopped
8 because Mother came back from her house.” Garcia testified that Amanda then told
her about two other instances when Justin assaulted her, once while Mother was
downstairs and another time in her bedroom while Mother was at the store.
Garcia explained that in total, Amanda said there were four alleged
perpetrators including Oliver, Justin, and Justin’s two brothers. Many times, when
the abuse occurred, Amanda said Mother was not there and provided some level of
detail about that. Garcia testified that Amanda’s demeanor “was very open. She was
all over the place and happy. Content. And just open.” Amanda did not provide
Garcia with a timeline but provided a location for some offenses. Garcia explained
that Amanda provided details about locations including identifying one home as
“having two pools[,]” and the clothing she was wearing when she was assaulted.
Amanda told Garcia that Mother was in the home when the abuse occurred
but was not in the room. Garcia testified that Amanda reported telling Mother about
the sexual abuse.
Testimony of Conservatorship Worker, David Rendon
David Rendon (“Rendon”) is the assigned conservatorship worker and has
been on the case for a year. Rendon testified that he is bilingual and communicates
with Mother in Spanish.
Rendon testified that a family plan of service was developed for Mother,
which included a parenting class, a psychological assessment, substance abuse
9 assessment, random drug tests, and maintaining a stable living environment and
employment. Throughout the case, Mother never provided specifics or an address of
where she was living and at one time told Rendon she was living in her truck. Rendon
said that Mother never provided any information about her employment, although
the plan required it, and he discussed it with her. Mother completed a parenting class
and psychological evaluation. The psychological evaluation recommended she
undergo random drug assessments, use CPS resources, and complete a substance
program.
Rendon said that Mother was scheduled for a drug assessment multiple times,
but she did not actually complete it. According to Rendon, they explained to Mother
that if she failed to go for drug tests when called, those tests would be considered
positive. He testified there were about ten times he called her to test, but she failed
to go, and he estimated she tested less than fifty percent of the time. Most of the
time, her excuse was that she forgot about the test and occasionally, she said she had
transportation issues.
Although Mother initially denied drug use, she later admitted it during one of
the visits. Rendon testified that Mother tested positive for amphetamines and
methamphetamines several times during the case. Rendon said he spoke with Mother
about her positive drug test results, and about half the time she admitted using, and
the other half, she stayed quiet. She also tested positive for alcohol when the case
10 began. Mother never told Rendon that she felt she had an alcohol problem but did
say alcohol was one way she coped and released stress. Rendon explained that for a
while Mother was not allowed access to her children until she provided a negative
urine analysis (“UA”), which took about three or four weeks. According to Rendon,
Mother told him recently that she would no longer participate in drug testing,
because she did not believe it would help her; she believed she needed rehabilitation
instead.
Rendon testified that the first time Mother attempted to go into a drug program
for the Department was April. The Department tried to accommodate Mother for the
drug program with Spanish speakers. Rendon explained that Mother had not
officially completed any substance program but attempted to go; she left one facility,
Santa Maria, “against professional advice.” He said that Mother left Santa Maria,
because she believed she was not getting the necessary help. Rendon testified that
Santa Maria had Spanish speakers, and one person was specifically assigned to
Mother. She left Santa Maria at the beginning of June and hasn’t entered any rehab
since, and last drug tested in April or early May. Mother was also discharged from
individual therapy at Reflexiones for multiple no-shows.
Rendon believed that Oliver was the younger children’s father and said that
he did not talk to Mother about staying away from him. In March 2024, Mother and
Oliver were arrested on the way to a casino in Livingston; Oliver had drugs and a
11 weapon in a backpack and would be deported. This occurred during the time Mother
was prohibited from visiting the children until she had a clean UA. While Mother
was at Santa Maria, she asked Rendon to talk to her counselor so she could get
permission to visit Oliver in Immigration and Customs Enforcement (“ICE”)
custody.
Rendon testified that he observed most of Mother’s visits with the children,
and during one of the last visits, Mother had inappropriate conversations with
Amanda. This involved Mother telling Amanda that she needed “to tell the truth.
That she’s the only one that can save this family.” During this conversation, Amanda
was “stressed out” and crying. The Court Appointed Special Advocate (“CASA”)
was there, and they both repeatedly told Mother to change the conversation and
ultimately threatened to end the visitation. Rendon testified that Mother has also
been “extremely late” to visits. He also described Mother being late to a visit,
because she was involved in a road rage incident in the middle of the night and
someone shot at her car, so she had to speak with the Harris County Sheriff’s
Department. Rendon observed the bullet holes in her vehicle and photographs of the
holes were introduced. He said that Mother did not explain why she was in the area
where the shooting occurred late at night.
Rendon discussed the children, who are placed in “a basic foster home[,]” and
their progress. He testified that all three children required summer school. The
12 children were behind on their vaccinations, and Amanda needed multiple rounds of
shots for school.
Rendon testified that Amanda is ten and entering the fifth grade. He said that
Amanda is in a special education program, receives accommodations, and makes Cs
in school. He explained that Amanda has improved but is still delayed. Rendon
testified that Amanda requires medications, including Clonidine and Desmopressin.
She is in group therapy with her siblings and individual therapy, which includes
skills training and trauma therapy. Rendon relayed that Amanda is doing well in
therapy.
Rendon testified that Jacob is nine and entering third grade. He said that Jacob
is doing “amazing” in school and made the honor roll every grading cycle. Rendon
said Jacob is talkative, has no behavior issues at school, and is best friends with one
of the other foster brothers in the home. Jacob is also in therapy, including trauma
therapy and skills therapy. Rendon testified that Jacob gets along well with his
siblings if they behave, but if they misbehave, he tries to “separate himself from the
siblings.”
Rendon said that Sue is five and will be in kindergarten. She is also in therapy.
Rendon explained that Sue is doing better and talking more, while before, she did
not want to speak to most people. At one point, the foster mother considered having
Sue removed from the home due to her tantrums, but those behavior issues resolved.
13 Rendon testified that the Department feels the children should remain
together. The Department’s primary goal is related adoption, and the concurrent goal
is unrelated adoption. They are looking into a fictive kin placement and awaiting the
results of a home study. Rendon did not see any obstacles to the fictive kin
placement, who is Oliver’s friend, other than she was moving, so they’d have to do
another home study, and there was a criminal history. The trial court questioned
Rendon about the wisdom of placing the children with a friend of the man accused
of sexually abusing Amanda. The only other possible family placement was
Mother’s sister, but the children were not placed there, because the husband strongly
opposed the placement and her oldest child “had felonies.”
Rendon testified that Mother had three boyfriends during the case, including
Oliver, Justin and one other. He was unsure if Mother was still in a relationship with
Oliver, but they were arrested together on their way to the casinos. Additionally,
Mother told Rendon that she wanted the children’s passports while she was at Santa
Maria to take them on a trip to Hawaii. Mother told him multiple times that she
wanted to take them out of state to “start new.”
Rendon is concerned about Mother’s drug use and ability to protect the
children. Rendon testified it was in the children’s best interest for Mother’s parental
rights to be terminated but did not “have an exact answer at the moment[]” for why.
14 He also testified all the fathers’ parental rights should be terminated and that Oliver
had signed an affidavit of voluntary relinquishment.
Mother’s Testimony
Mother testified that although she made many mistakes, she wants what is fair
and she has “fought” for her children. Mother did not believe she needed frequent
drug testing, instead she needed CPS support to help her find a rehab and get her
children back. Mother explained that while she was in the United States, Amanda
was not always with her, rather Amanda came to the United States from El Salvador
to be with Mother when she was five.
Mother said that since the Department has been involved, she has only been
in one stable relationship, with her on-and-off-again boyfriend, “John.” She denied
being in a relationship with Oliver while the case was pending and said they
separated four years ago. She testified that she went to the casinos with Oliver since
“we always remained in contact as friends and because of the kids.” She understood
that Oliver was accused of sexually abusing Amanda but denied that Amanda ever
told her that while she was in a relationship with Oliver, and she wanted to stay in
contact with him for the children until the investigation concluded. She knew in May
that Amanda made allegations against Oliver, but she explained that she was not in
a relationship with him at that time, they were only friends.
15 Mother understood that Amanda alleged four perpetrators sexually abused her
and during the interview, Amanda was talking about things that happened before
May while Mother was Amanda’s primary caregiver. Mother said that she had a
relationship with Justin, and she knew his brothers. She testified that Amanda’s
description of a “skinny” brother and a “fat” brother made sense. She agreed that
Amanda recounted through the forensic interviewer that she was sexually abused by
Justin and his brothers multiple times. Mother testified she always took care of her
children, but Amanda never let her know anything.
Mother denied leaving her children alone, except to go to the store. Mother
said that Amanda never told her about the abuse until after the outcry, which was
when she found out about everything. Mother testified that she sold sexual favors to
men for money or drugs after separating from Justin, who abused Amanda, but she
denied prostituting Amanda. When asked if she believed Amanda was sexually
abused, Mother responded, “Now I do.”
Mother testified that she is staying in a hotel and waiting to return to Santa
Maria rehab. She said a man named “Jose” is providing funds for her to live in the
hotel, but denied they are in a relationship and insisted he is just giving her support.
Mother testified the only stable place she lived during the case was in an RV for two
months, which her spouse, “Huston” paid for. She immediately contradicted this
16 testimony by saying she was not married, but they were in a relationship. She
testified that now, a different man is supporting her.
Mother received a copy of the service plan in Spanish and completed the
parenting class. Mother said she did not complete the tasks on the service plan,
because they were not in Spanish. She completed the psychological evaluation, and
Rendon told her there were recommendations from the evaluation. She said she
completed a drug and alcohol assessment but not a substance abuse program. Mother
reported that she has been unemployed since this case started. She attributed her lack
of a stable home and job to needing to return to Santa Maria. Mother said that the
month she spent at Santa Maria was hard, and she had witnesses who saw she was
attacked because she did not speak English, yet she would return.
Mother said that if the Department returns the children to her, they would live
in an apartment with only her. She testified that to keep Amanda safe, she would
“protect them more.” Mother acknowledged the children have improved physically
and mentally while in the Department’s care. If the children are not returned, Mother
testified that she would like the children placed with a woman named Lily, who has
supported her, but Mother seemed unsure of the woman’s last name.
17 Testimony of Court Appointed Special Advocate, Karen Vegas
Karen Vegas (“Vegas”) is the guardian ad litem and CASA for the children.
She testified that she has been on the case since the beginning and is bilingual. Vegas
first met Mother at Children’s Safe Harbor in May of 2023.
Vegas said she spoke with Mother about Amanda’s allegations of sexual
abuse. According to Vegas, Mother talked to her about the sexual abuse allegations
and knew that different men had been allegedly abusing Amanda; Mother “had her
doubts about [Oliver], and she believed that [Justin] had done some sexual assault
to [Amanda].”
Vegas testified she attended about fifteen of Mother’s visits with the children.
Vegas explained that there were issues with Mother’s behavior at the visits, so
Mother required redirecting. Vegas recalled one incident of Mother sharing how the
current boyfriend had been in jail, which did not require much redirecting, though
in later visits, it was more difficult to redirect Mother. Vegas explained that as they
have tried to redirect Mother, she was “more in denial of listening to the
instructions[,]” but overall, Vegas said “most of the visits were very positive for
Mom and the children.” Vegas said many visits “were very emotional” since they
played certain music that had emotional meaning to them as a family, and Mother
and Amanda often talked about how life was back in El Salvador with the children’s
grandmother.
18 Vegas testified she had “[m]ultiple conversations” with Mother about how to
do her services and tried to help Mother get the proper services. Vegas testified that
CPS provided Spanish-speaking providers to the best of its ability. Mother told
Vegas that there was not a Spanish provider at Santa Maria. Vegas did not see any
fault in CPS trying to accommodate Mother’s needs and explained maybe twice
during the case, a services voucher expired. Nevertheless, she and Rendon constantly
talked to Mother about services and what she needed to do to set up appointments
and complete her service plan. Vegas testified that Mother had difficulty completing
her plan due to transportation issues, and virtual visits also were difficult since
Mother did not have a stable phone or internet connection. Locating in person visits
was hard, but the “biggest barrier was the language barrier[.]” Vegas explained that
CPS provided the Spanish-speaking services that it could, but there were not many
such services available. Vegas testified that Mother did not complete any services
except her parenting class.
Vegas never saw any official paperwork showing Mother was employed
during the case. According to Vegas, Mother provided different answers throughout
the case about where she was living; she mentioned an RV, a hotel, and living in her
car, but did not establish stable housing.
Vegas said Mother did not go to all her random drug tests. She talked with
Mother about her drug use. Mother admitted to drinking occasionally but not having
19 a problem with alcohol and did not understand how she tested positive for
methamphetamine, although she acknowledged using cocaine in the past.
Vegas testified that Amanda underwent a psychological evaluation and was
diagnosed with depression. She said Amanda receives accommodations in school,
including speech, since she had a speech delay and was held back a year in school
based on her performance in an assessment, but Vegas could not recall a specific
diagnosis. Vegas testified that she had seen “great progress[]” in Amanda and her
speech has improved, she looks healthier, and is doing better academically. Vegas
testified that Jacob has also made progress; he is more approachable, will speak, will
make eye contact, and is more open. Vegas said that Sue has improved the most; she
used to pull her hair out, but now has long, healthy hair, has gained weight, and
speaks.
Vegas testified that Mother is from El Salvador, and Amanda has been in the
United States since she was five. Vegas had spoken with Mother about Amanda’s
immigration status and was unclear exactly how she arrived in the United States, as
she received different information, but she knew that Amanda’s asylum status had
expired.
Vegas agreed with the Department that the three children should be kept
together. The Department does not have the results of the recent home study on the
20 fictive kin. The children’s current placement is not an adoptive home, so they don’t
know where the children will end up.
Vegas testified that she spoke with Mother about Lily, Mother’s proposed
placement. Mother told Vegas that Lily was someone who supported her when she
was on the streets, and she agreed to take the kids in. Vegas had also spoken with
Lily and had concerns about placing the children with her. Vegas said she learned
that Lily owns a restaurant where Mother worked and after hours, Mother would
prostitute herself with Lily’s help.
Vegas believed all parents’ rights should be terminated. Vegas explained why
she believed it was in the children’s best interests for the fathers’ rights to be
terminated. Vegas also believed it was in the children’s best interests for Mother’s
rights to be terminated. She explained that despite CPS and CASA support, since
August of the previous year, Mother did not commit to doing what she needed to do
to get her children back, was noncompliant, and Vegas believed that “terminating
her parental rights is in the best interest of her children.” Vegas did not believe
Mother had learned anything that would make it a safe environment for Amanda
especially.
Other Evidence
Documentary evidence admitted at trial included, among other things, the
court’s order incorporating the service plans, Mother’s service plan, Mother’s drug
21 and alcohol test results, Mother’s counseling records from Reflexiones containing
Mother’s psychological evaluation with recommendations, and photographs of
Mother’s car showing bullet holes.
Trial Court’s Ruling
The trial court found by clear and convincing evidence that the Department
established termination grounds D, E, and O and that terminating Mother’s rights is
in the children’s best interest and appointed the Department as the children’s
permanent managing conservator. The trial court adjudicated Oliver to be the father
of Jacob and Sue and terminated his rights based on the affidavit of voluntary
relinquishment and finding by clear and convincing evidence it was in their best
interest. The trial court also terminated the rights of the alleged father, Justin, to
Amanda and those of any unknown father.
Mother timely appealed.
STANDARDS OF REVIEW
The standard of proof required in cases involving termination of parental
rights is clear and convincing evidence, which is “the measure or degree of proof
that will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established.” Tex. Fam. Code Ann. §§ 101.007,
161.001(b); In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (citing In re J.F.C., 96
S.W.3d 256, 263 (Tex. 2002)) (other citations omitted). Generally, only one
22 predicate finding under section 161.001(b)(1) is necessary to support a judgment of
termination when there is also a finding that termination is in the child’s best
interest. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (applying previous version
of the statute); see also In re M.S., 662 S.W.3d 620, 628 (Tex. App.—Beaumont
2023, pet. denied). Yet, when, as here, a parent challenges the endangerment
findings under section 161.001(b)(1)(D) or (E), due process concerns and the
requirement for a meaningful appeal dictate that we review these grounds. See In re
N.G., 577 S.W.3d 230, 236–37 (Tex. 2019) (per curiam); In re C.M.C., 554 S.W.3d
164, 171 (Tex. App.—Beaumont 2018, no pet.).
When conducting a legal sufficiency review of the termination of parental
rights, we examine 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.” In re J.F.C., 96 S.W.3d at 266; see also In re
J.O.A., 283 S.W.3d 336, 344–45 (Tex. 2009); In re M.S., 662 S.W.3d at 628. We
assume the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could, and we disregard all evidence a reasonable factfinder could have
disbelieved or found incredible. In re J.O.A., 283 S.W.3d at 344–45; In re J.F.C., 96
S.W.3d at 266; see also In re E.N.C., 384 S.W.3d at 802; In re M.S., 662 S.W.3d at
628. The evidence is legally insufficient if no reasonable factfinder could form a
23 firm belief or conviction that the matter that must be proven is true. In re J.F.C., 96
S.W.3d at 266; In re M.S., 662 S.W.3d at 628.
In a factual sufficiency review, we “give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing[]” and must
determine “‘whether the evidence is such that a factfinder could reasonably form a
firm belief or conviction about the truth of the State’s allegations.’” In re J.F.C., 96
S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Considering the
entire record, if the disputed evidence a reasonable factfinder could not have credited
in favor of the finding is so significant that a factfinder could not have reasonably
formed a firm belief or conviction, then the evidence is factually insufficient. Id. We
defer to the factfinder and do not substitute our judgment for the factfinder’s. See In
re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). The factfinder is the sole arbiter of the
witnesses’ credibility and demeanor. See id. at 109 (quoting In re J.L., 163 S.W.3d
79, 86–87 (Tex. 2005)).
ANALYSIS
Issues One and Two: Predicate Grounds
Although Mother does not challenge predicate ground 161.001(b)(1)(O),
because Mother challenges the sufficiency of the evidence supporting the trial
court’s endangerment findings in issues one and two, we consider whether the
evidence is sufficient to support terminating Mother’s rights under subsections (D)
24 and (E). See In re N.G., 577 S.W.3d at 235–36. If the evidence is sufficient as to one
of these grounds plus sufficient evidence exists to support the best interest finding,
we will affirm the termination order. See id. at 232–33. Since evidence of grounds
(D) and (E) is often interrelated, we consolidate our review of these grounds. See In
re J.L.V., No. 09-19-00316-CV, 2020 WL 1161098, at *10 (Tex. App.—Beaumont
Mar. 11, 2020, pet. denied) (mem. op.).
Subsection (D) allows for the termination of parental rights if clear and
convincing evidence supports that the parent “knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child[.]” Tex. Fam. Code Ann. §
161.001(b)(1)(D). Under subsection (E), parental rights may be terminated if clear
and convincing evidence establishes the parent “engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangers the physical
or emotional well-being of the child[.]” Id. § 161.001(b)(1)(E). The Texas Supreme
Court has explained that “‘endanger’ means to expose to loss or injury; to
jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987) (citation omitted). To endanger a child, “it is not necessary that the conduct
be directed at the child or that the child actually suffers injury.” Id. (citation omitted).
“Subsection D requires the endangerment to the child to be the direct result of
the child’s environment.” See Interest of J.H., No. 09-20-00056-CV, 2020 WL
25 4516860, at *10 (Tex. App.—Beaumont Aug. 6, 2020, no pet.) (mem. op.) (citation
omitted). “Endangerment under subsection (D) arises from a child’s environment
and a parent’s disregard for the potential for danger created by the environment.” In
re I.V.H., No. 01-19-00281-CV, 2019 WL 4677363, at *5 (Tex. App.—Houston [1st
Dist.] Sept. 26, 2019, pet. denied) (mem. op.) (citation omitted). We consider the
child’s environment before the Department obtained custody in our subsection (D)
endangerment analysis. See In re J.L.V., 2020 WL 1161098, at *10. Under
subsection (D), termination may be based on a parent’s single act or omission. In re
A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003, pet. denied); see also In
re G.M.S., No. 09-24-00207-CV, 2024 WL 4643302, at *8 (Tex. App.—Beaumont
Oct. 31, 2024, pet. denied) (mem. op.). It is unnecessary that a parent know with
certainty the child is in an endangering environment; instead, awareness of the
potential for danger and disregarding the risk is enough to show endangering
conduct. See In re J.H., 2020 WL 4516860, at *10.
To terminate a parent’s rights under subsection (E), the evidence must “show
a conscious course of conduct.” In re C.M.C., 554 S.W.3d at 172 (citing In re J.T.G.,
121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)); In re G.M.S., 2024
WL 4643302, at *8. In our analysis of subsection (E), we may consider actions
occurring before and after a child’s birth to establish a “course of conduct.” See In
26 re C.M.C., 554 S.W.3d at 172 (citation omitted); In re G.M.S., 2024 WL 4643302,
at *8 (citation omitted).
Evidence of a parent’s drug use can establish that the child’s surroundings
endanger her physical or emotional well-being under subsection (E) and qualify as
a “voluntary, deliberate, and conscious course of conduct endangering the child’s
well-being under subsection (E).” In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—
Dallas 2019, pet. denied) (citation omitted). “Courts may consider whether a
parent’s drug use continues after the child is removed from the parent’s care, as such
conduct shows a voluntary, deliberate, and conscious course of conduct that
endangers a child’s well-being.” In re M.S., 662 S.W.3d at 629 (citations
omitted); see also Cervantes-Peterson v. Tex. Dep’t of Fam. & Protective Servs.,
221 S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (noting that
mother’s continued narcotics use after child’s removal in the face of drug testing,
jeopardized her relationship with her child). The trial court may infer from refusals
to drug test that the parent used drugs. See In re M.S., 662 S.W.3d at 629; In re
K.C.B., 280 S.W.3d 888, 895 (Tex. App.—Amarillo 2009, pet. denied) (noting trial
court may infer from parent’s refusal to submit to drug test that they are using drugs).
“‘Sexual abuse is conduct that endangers a child’s physical or emotional well-
being.’” In re G.M.S., 2024 WL 4643302, at *8 (quoting In re K.A.R., No. 04-17-
00723-CV, 2018 WL 1733147, at *3 (Tex. App.—San Antonio Apr. 11, 2018, pet.
27 denied) (mem. op.)). The Department need not establish sexual assault, or that the
parent was criminally charged or convicted. Id. Evidence of sexual abuse of other
children is relevant in determining endangerment grounds. Id.; see In re L.J.H., No.
05-21-00183-CV, 2021 WL 4260769, at *12 (Tex. App.—Dallas Sept. 20, 2021, no
pet.) (mem. op.) “([P]redatory or harmful conduct directed at one child will support
termination of parental rights as to a different child, because all children at risk for
the same conduct by the same predator are endangered.”); In re K.A.R., 2018 WL
1733147, at *3.
“‘Domestic violence and a propensity for violence may be considered
evidence of endangerment, even if the endangering acts did not occur in the child’s
presence, were not directed at the child, or did not cause actual injury to the child.’”
In re M.S., 662 S.W.3d at 630 (citation omitted); see also Boyd, 727 S.W.2d at 533.
A parent’s abusive or violent conduct or that of other residents of a child’s home can
create an environment endangering to the child’s physical or emotional well-being.
In re M.S., 662 S.W.3d at 630; In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.—Fort
Worth 2004, pet. denied).
The trial court heard testimony that Mother tested positive for
methamphetamines multiple times after the children’s removal, which the drug tests
admitted at trial also supported. The documentary evidence also established that
Mother admitted using cocaine twice a month between 2014 and November 2023,
28 which was during the time she had her children. She refused to submit to drug testing
several times during the case’s pendency, which the Court could conclude were
positive. Additional evidence established that Mother was found walking with the
children along a highway while under the influence of alcohol, once in Florida and
once in Texas.
As described above, evidence showed that Amanda made outcries of multiple
instances of sexual abuse at the hands of Mother’s boyfriends and their family
members, and there were concerns about her ability to protect the children. Mother
was also arrested with Oliver, one of Amanda’s alleged abusers, while the case was
pending. The psychological evaluation admitted at trial established that Mother had
a history of being in relationships involving domestic violence.
Viewing the evidence in the light most favorable to the trial court’s findings,
we conclude that the trial court could reasonably have formed a firm belief or
conviction that Mother knowingly placed or knowingly allowed Amanda, Jacob, and
Sue to remain in conditions or surroundings which endangered their physical or
emotional well-being and engaged in conduct or knowingly placed them with
persons who engaged in conduct that endangered their physical or emotional well-
being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In re J.F.C., 96 S.W.3d at
266; In re J.O.A., 283 S.W.3d at 345; Boyd, 727 S.W.2d at 533; In re G.M.S., 2024
WL 4643302, at *8; In re M.S., 662 S.W.3d at 631; In re K.A.S., 131 S.W.3d at
29 222; In re J.T.G., 121 S.W.3d at 125; In re K.A.R., 2018 WL 1733147, at *3. Thus,
the Department established, by clear and convincing evidence, that Mother
committed the predicate acts enumerated in sections 161.001(b)(1)(D) and (E). See
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In re M.S., 662 S.W.3d at 631. We
overrule Mother’s issues challenging the legal and factual sufficiency of the
evidence supporting predicate acts under subsections (D) and (E).
Issue Three: Best Interest
Mother also challenges the legal and factual sufficiency of the evidence
supporting the trial court’s best interest finding. “Trial courts have wide latitude in
determining the child’s best interest.” In re H.S., No. 09-23-00002-CV, 2023 WL
4013305, at *9 (Tex. App.—Beaumont June 15, 2023, pet. denied) (mem. op.)
(citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). “There is a strong
presumption the child’s best interest is served by keeping him with his parent.” Id.
(citations omitted); see In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (citing Tex.
Fam. Code Ann. § 153.131(b)); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—
Houston [14th Dist.] 2012, no pet.); see also Tex. Fam. Code Ann. § 153.131(b). We
presume that prompt and permanent placement of the child in a safe environment is
in the child’s best interest. See Tex. Fam. Code Ann. § 263.307(a).
The Family Code outlines factors to consider in determining whether a parent
is willing and able to provide a safe environment for the children. See id. §
30 263.307(b). Several other non-exclusive factors may be considered in a best interest
analysis, including: (1) the desires of the children; (2) the emotional and physical
needs of the children now and in the future; (3) the emotional and physical danger
to the children 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 children; (6) the plans for the children by these individuals or
by the agency seeking custody; (7) the stability of the home or proposed placement;
(8) the parent’s acts or omissions that may suggest that the existing parent-child
relationship is not a proper one; and (9) any excuse for the parent’s acts or
omissions. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see also In
re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (characterizing the Holley factors as “non-
exclusive”). “No particular Holley factor is controlling, and evidence of one factor
may be enough to support a finding that termination is in the child’s best interest.” In
re H.S., 2023 WL 4013305, at *9 (citations omitted); see also In re C.H., 89 S.W.3d
at 27.
In our best interest analysis, we consider circumstantial evidence, subjective
factors, and the totality of the evidence. See In re H.S., 2023 WL 4013305, at *9; In
re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.). A parent’s
past conduct is relevant to determining the parent’s present and future ability to care
for a child. See In re C.H., 89 S.W.3d at 28; In re H.S., 2023 WL 4013305, at *9.
31 Evidence supporting the statutory grounds for termination may also support a best
interest finding. See In re C.H., 89 S.W.3d at 28; In re H.S., 2023 WL 4013305, at
*9.
We have explained the evidence established Mother’s drug use, history of
relationships involving domestic violence, walking with the children along a
highway twice while under the influence of alcohol, prostitution, and lack of
protectiveness particularly with Amanda’s sexual abuse allegations. The record
established that Mother failed to obtain steady employment or stable housing. The
evidence showed that Mother failed to complete services, and failed to complete the
substance abuse program at Santa Maria, where Rendon testified they had Spanish
speakers. Additionally, the caseworker and Mother described Mother’s
inappropriate behavior at times during Mother’s visits with the children. Finally, the
evidence established that Mother wanted the children placed with an individual who
enabled Mother’s prostitution. Mother testified that she relied on various men for
her financial needs and had not worked much since coming to the United States.
Mother lived in her vehicle at times and made no progress in obtaining employment
or stable housing. When asked whether she believed Amanda about the sexual abuse
allegations, she responded, “Now I do.” From that statement the trial court could
have reasonably inferred that Mother did not believe Amanda when she initially
made her outcry.
32 Although evidence of placement plans and adoption are relevant to best
interest, a lack of evidence about definitive plans for permanent placement and
adoption by the Department are not dispositive. In re C.H., 89 S.W.3d at 28; In re
H.S., 2023 WL 4013305, at *10. “Rather, based on the entire record, we ask if a
factfinder could reasonably form a firm conviction or belief that termination of the
parent’s rights is in the children’s best interest—even if the agency cannot precisely
identify the children’s future home environment.” In re H.S., 2023 WL 4013305, at
*10 (citing In re C.H., 89 S.W.3d at 28). Amanda, Jacob, and Sue remained in foster
care at the time of trial, but evidence showed the Department and CASA felt it was
important to keep the children together. Further, the evidence established that all
three children improved significantly while in the Department’s care. The
caseworker and CASA explained that the children required therapy and summer
school. Additionally, Amanda required accommodations at school and medication.
The caseworker and CASA testified that it was in the children’s best interest for
Mother’s rights to be terminated.
Considering the evidence related to best interest, deferring to the trial court’s
determinations on witness credibility, the resolution of conflicts in the evidence, and
the weight given to the testimony, we conclude that the statutory and Holley factors
weigh in favor of the trial court’s finding that termination is in Amanda’s, Jacob’s,
and Sue’s best interest. See Tex. Fam. Code Ann. §§ 161.001(b)(2), 263.307(a), (b);
33 Holley, 544 S.W.2d at 371–72; In re H.S., 2023 WL 4013305, at *10. The trial court
could have reasonably formed a firm belief or conviction that termination of
Mother’s parental rights was in the best interest of all three children. See In re C.H.,
89 S.W.3d at 28; In re H.S., 2023 WL 4013305, at *10. We overrule Mother’s issue
challenging the sufficiency of the evidence to support the best interest finding.
Issue Four: Conservatorship
In issue four, Mother challenges the legal and factual sufficiency of the
evidence to support the Department’s appointment as managing conservator, arguing
family members sought placement, and no evidence was admitted supporting the
Department’s appointment as conservator. Mother also contends that “[b]ut for” her
“wrongful termination, the Department would not be appointed sole managing
conservator of the children.”
The trial court’s termination order states that it appointed the Department as
permanent managing conservator and found “that the appointment of the
Respondents as managing conservator of the children is not in the child’s best
interest because the appointment would significantly impair the child’s physical
health or emotional development.” These findings track those required by Family
Code section 153.131, which supports our conclusion that the trial court appointed
the Department as the managing conservator under Chapter 153. See Tex. Fam. Code
Ann. § 153.131; In re H.S., 2023 WL 4013305, at *10; In re L.M., No. 09-22-00307-
34 CV, 2023 WL 2418912, at *5 (Tex. App.—Beaumont Mar. 9, 2023, no pet.) (mem.
op.) (determining same). When a trial court appoints the Department as the child’s
managing conservator based on its authority under Chapter 153, the parent must
challenge the trial court’s appointment of the Department as the child’s managing
conservator to preserve a challenge. See In re J.A.J., 243 S.W.3d 611, 615–17 (Tex.
2007) (explaining that parent must raise an issue on appeal challenging trial court’s
Department’s appointment when the findings show it was appointed under Family
Code section 153.131, as a challenge based on those findings is not subsumed by a
parent’s claim that terminating the parent-child relationship is not in the child’s best
interest); In re H.S., 2023 WL 4013305, at *10; In re L.M., 2023 WL 2418912, at *4
n.22. To the extent Mother challenges the Department’s appointment as conservator
under Chapter 153, the evidence as outlined in our analysis of Mother’s other issues
supports the trial court’s finding that appointment of the parents as permanent
managing conservators “[is] not in the best interest of the child because the
appointment would significantly impair the child’s physical health or emotional
development[.]” See Tex. Fam. Code Ann. § 153.131(a). Given the testimony from
multiple witnesses that all three children had improved significantly since being
removed from Mother and placed in the Department’s conservatorship, we disagree
with Mother’s characterization that no evidence was admitted supporting the
Department being named managing conservator.
35 Finally, section 161.207 of the Texas Family Code provides that if the trial
court terminates the parent-child relationship with respect to both parents, the Court
shall appoint a suitable, competent adult, the Department, or a licensed child-placing
agency as managing conservator of the child. Id. § 161.207(a). Here, the trial court
terminated the parental rights of all parents, although Mother is the only party who
appealed. Having affirmed the trial court’s judgment terminating Mother’s parental
rights, any challenge to the conservatorship appointment under 161.207 was
subsumed in the issues related to the termination of her parental rights. See In re
D.N.C., 252 S.W.3d 317, 318 (Tex. 2008); In re T.J., No. 09-22-00224-CV, 2022
WL 17491817, at *5 (Tex. App.—Beaumont Dec. 8, 2022, pet. denied) (mem. op.).
We overrule issue four.
CONCLUSION
Having overruled Mother’s issues, we affirm the trial court’s termination
order.
AFFIRMED. W. SCOTT GOLEMON Chief Justice
Submitted on December 18, 2024 Opinion Delivered January 16, 2025
Before Golemon, C.J., Johnson and Chambers, JJ.