Court of Appeals Tenth Appellate District of Texas
10-25-00041-CV
In the Interest of A.R.G., a Child
On appeal from the County Court at Law No. 1 of Ellis County, Texas Judge James S. Chapman, presiding Trial Court Cause No. 112195CCL
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
Following a bench trial, the parental rights of A.R.G.’s mother (Mother)
were terminated. 1 The trial court found by clear and convincing evidence that
Mother had violated Family Code subsections 161.001(b)(1)(D), (E), (O), and
(P) and that termination was in the child’s best interest. See TEX. FAM. CODE
ANN. § 161.001(b). In her sole issue, Mother contends that the trial court
1 The parental rights of A.R.G.’s father were also terminated, but he has not appealed. abused its discretion by terminating her parental rights because the evidence
does not support termination. 2 We will affirm.
The standards of review for legal and factual sufficiency of the evidence
in cases involving the termination of parental rights are well established and
will not be repeated here. See In re J.F.C., 96 S.W.3d 256, 264–68 (Tex. 2002)
(legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency).
The trial court, as factfinder, is the sole judge of the witnesses’ credibility and
demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
In a proceeding to terminate the parent-child relationship brought under
section 161.001 of the Family Code, the Department of Family and Protective
Services (the Department) must establish by clear and convincing evidence two
elements: (1) that the respondent parent committed one or more acts or
omissions enumerated under subsection (b)(1), termed a predicate violation,
and (2) that termination is in the best interest of the child. TEX. FAM. CODE
ANN. § 161.001(b); In re J.F.-G., 612 S.W.3d 373, 381 (Tex. App.—Waco 2020)
(mem. op.), aff’d, 627 S.W.3d 304 (Tex. 2021). Proof of one element does not
2 Mother does not specify whether her challenge is directed toward the legal sufficiency of the
evidence, the factual sufficiency of the evidence, or both. Mother references the applicable standard of review for only legal sufficiency; however, in one section of the brief, she asserts more than once that the “evidence is legally and factually insufficient.” The brief’s prayer requests that we “reverse the trial court’s ruling and grant any other or further relief to which [Mother] is entitled, including remand to the trial court to return the child to the Mother.” As for the Department, it has treated Mother’s issue as a challenge to both the legal and factual sufficiency of the evidence. Construing Mother’s brief liberally, we will also treat Mother’s issue as a challenge to both the legal and factual sufficiency of the evidence. See, e.g., Okonkwo v. VE Westchase LLC, No. 14-19-00935-CV, 2020 WL 7038401, at *1 (Tex. App.—Houston [14th Dist.] Dec. 1., 2020, no pet.) (mem. op.).
In the Interest of A.R.G., a Child Page 2 relieve the petitioner of the burden of proving the other. J.F.-G., 612 S.W.3d
at 381.
PREDICATE VIOLATIONS
Mother first contends that the evidence was insufficient to support the
trial court’s findings that she violated Family Code subsections
161.001(b)(1)(D), (E), (O), and (P). We begin with Mother’s argument that the
evidence was insufficient to support the trial court’s finding that she violated
subsection (E).
Termination under subsection (E) requires clear and convincing evidence
that the parent has “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.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). To
“endanger” means to expose the child to loss or injury, to jeopardize. Tex. Dep’t
of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The relevant
inquiry under subsection (E) is whether sufficient evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s
conduct, including acts, omissions, or failures to act. In re E.M., 494 S.W.3d
209, 222 (Tex. App.—Waco 2015, pet. denied).
Scienter is not required for a parent’s own acts to constitute
endangerment under subsection (E). See In re L.S., No. 10-22-00119-CV, 2022
WL 3655395, at *2 (Tex. App.—Waco Aug. 24, 2022, no pet.) (mem. op.). It is
In the Interest of A.R.G., a Child Page 3 also not necessary to show that the parent’s conduct was directed at the child
or that the child suffered actual injury. Boyd, 727 S.W.2d at 533. The specific
danger to the child’s well-being may be inferred from the parent’s misconduct
alone. Id. Furthermore, we may consider conduct both before and after the
child’s removal in an analysis under subsection (E). In re S.R., 452 S.W.3d
351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
The relevant evidence presented in this case was as follows: Ennis Police
Officer Sherman Swafford testified that he and another officer responded to
the home of Mother’s neighbors on September 16, 2023, after the neighbors
called the police about a disturbance. Mother’s neighbors had reported that a
frantic Mother had arrived at their home with her two sons, A.L. and A.R.G.,
who were about four years old and just under one year old, respectively, at that
time. Mother was saying that there were people chasing her and that she was
in harm’s way.
Officer Swafford testified that when he first arrived at the scene, his
initial actions were to make sure that everyone was secure and that no one was
chasing anyone or trying to harm anyone. When asked if he ascertained
whether someone was chasing Mother, Officer Swafford answered:
Yes, ma’am. We asked numerous times[,] and everything was extremely vague. [Mother] said that her phones had been hacked, her TV had been hacked, the kids’ iPads had been hacked and people were following her and chasing her and spying on her. And at that point in time, it was pretty obvious to us that one of two
In the Interest of A.R.G., a Child Page 4 things was happening. It was either mental or drugs or all the above.
When further asked about his observations of Mother and the children at that
time, Officer Swafford testified that the children looked healthy but that
Mother and the children were “extremely dirty” and “smelly.” When asked
what he meant by “extremely dirty,” Officer Swafford stated, “The odor was - -
the only way I can really explain it is, if you took skunk and ammonia and mix
it together and spray it. It would make your eyes burn. It was that bad. It
was on all three of them.”
Officer Swafford explained that he and his fellow officer subsequently
followed Mother about six houses down to her own house. The officers wanted
to secure the house, confirm that no one was out to get Mother, and assure that
no one was hurt. Officer Swafford continued:
When we got right in front of her house across the street, [Mother] falls down on the ground with the kids and is holding them on the ground, hollering, they’re out to get us, and was referring to us, the police department. So she was freaking out. We finally got her back up, calmed her down. And at that point in time, we got her to release the kids to the family that was there to get them out of sight. We placed her in cuffs and put her in a squad car.
When asked if it appeared that Mother was responding to stimuli that were
not present, Officer Swafford replied, “Oh, yeah. She was out there.” But
Mother denied taking any medications or drugs or having any mental problems
at that time.
In the Interest of A.R.G., a Child Page 5 Officer Swafford testified that he and his fellow officer then asked
Mother if they could go inside her home to make sure that everything was fine.
Mother agreed. The door of Mother’s home was unlocked, and Officer Swafford
went inside. Officer Swafford stated that he would describe the environment
inside the house as very dangerous to the children. More specifically, he
described Mother’s home as follows:
I would say it looked like a bomb went off. There [were] clothes everywhere, food, TV’s were unplugged. All the drawers in the kids[‘] rooms and her room were dumped out on the floor. The drawers were all pulled out. It really looked like a bomb had [gone] off in there. And the odor - - the odor was so bad it would make your eyes burn.
Officer Swafford and his fellow officer therefore decided to take the children to
the police station and to take Mother to a mental facility for assistance.
Officer Swafford testified that he and his fellow officer first dropped off
the children at the police station and that his fellow officer was then going to
take Mother to the mental facility. Soon after the officer left with Mother,
however, Mother slipped off her handcuffs, lay over in the backseat, and began
wrapping the seatbelt around her neck. Mother also made several comments
at that time about having nothing to live for. The officer stopped the car and
put Mother back in the handcuffs and fastened her seatbelt. Mother was then
taken to Ennis Regional Hospital instead of the mental facility because Mother
In the Interest of A.R.G., a Child Page 6 was going to hurt herself if they did not get her out of the back of the car, and
Ennis Regional Hospital was less than a mile away.
When asked how the children had acted during all these events, Officer
Swafford replied that the children acted like it was normal. Officer Swafford
said that A.L. told the officers that he could call his father on his iPad. The
officers were therefore able to talk to A.L.’s father, who said that he could be
there in an hour to pick up his son. During that time, A.L. kept saying, “I’m
sorry I stink.” Officer Swafford apologized to him because Officer Swafford had
been unable to find any clean clothes in Mother’s home. A.L.’s father had to
bring clean clothes for him.
Officer Swafford testified that another officer was able to buy some clean
clothes for A.R.G., and the dispatchers cleaned and dressed him. Officer
Swafford explained, however, “You could still smell the odor. It was like in
their skin, in his hair. I mean we scrubbed him as much as we could[,] but you
could still smell the odor on him when he left.” Officer Swafford had tried to
contact A.R.G.’s maternal grandmother, but she was in northern Arkansas and
would not give them the name of A.R.G.’s father. When the officers had asked
Mother about A.R.G.’s father, she had just looked down. Officer Swafford had
therefore contacted the Department, and the Department took custody of
A.R.G. that evening.
In the Interest of A.R.G., a Child Page 7 Amy Guerrero, an investigator for the Department, testified that she
first made contact with Mother while Mother was at Ennis Regional Hospital.
At that time, Guerrero asked Mother what had happened, and Mother told
Guerrero that she was trying to contact her neighbor because she needed help.
Mother did not elaborate about why she needed help. Guerrero then asked
Mother about prior drug use, and Mother said that she had used drugs in the
past but that she did not use drugs anymore. When Guerrero then asked
Mother further questions about her prior drug use, Mother became irritated
and refused to speak with Guerrero about it. Guerrero eventually asked
Mother if she was willing to take an oral drug swab that she had. Mother
declined, but she was willing to take a drug screen from the hospital. The urine
screen that Mother took at the hospital was positive for cocaine and
methamphetamine.
Joesi Shah, who had also been an investigator for the Department during
that time, testified that she spoke with Mother a few days later. At that time,
Shah asked Mother what had happened, and Mother told her that she had gone
to reset an outlet at her home and that fumes had started coming out of the
outlet. Mother said that she did not know if the fumes were poisonous, so she
had run to the neighbor’s house because someone was after her. Mother said
that the neighbors thereafter called the police and that when law enforcement
arrived, they took her to the hospital due to her erratic behavior and concerns
In the Interest of A.R.G., a Child Page 8 for her mental health. Shah testified that when she was speaking with Mother,
Mother acknowledged that she had been experiencing hallucinations and
paranoia. Mother also admitted to using cocaine and marijuana.
Dana Roberson, a conservatorship worker who was assigned this case in
October or November 2023, testified that Mother also had prior involvement
with the Department. Roberson explained that after being assigned this case,
she discovered that she had been the conservatorship supervisor in a case in
Dallas County regarding A.L. In the prior case, A.L. had been removed from
Mother’s care because he had tested positive for cocaine at birth. Roberson
testified that Mother had nevertheless denied using drugs or having a
substance abuse problem in the prior case. Mother had also taken several
negative urinalyses throughout the prior case and had completed substance
abuse treatment. But Mother had continued to test positive for amphetamines,
methamphetamine, and cocaine on multiple hair-follicle drug tests throughout
the prior case. And the prior case was eventually closed after the child’s
maternal grandmother was appointed as A.L.’s permanent managing
conservator. Roberson stated that it had not been an option for Mother to be
A.L.’s managing conservator because Mother was not able to show a period of
sobriety.
Dachea Chumbley, a caseworker who was assigned to the present case
in March 2024, testified that in the present case, Mother participated in a
In the Interest of A.R.G., a Child Page 9 psychological evaluation that showed diagnoses of “stimulant use disorder,
other hallucinogen disorder, cannabis use disorder, problems related to
interaction with CPS, personal history of partner violence with it being
physical, and a history of traumatic loss within her family.” Mother was
therefore referred to Integrated Psychotherapeutic Services (IPS) for drug
treatment. Chumbley stated that Mother thereafter completed the drug
treatment but that she did not maintain sobriety while working through the
drug treatment. Chumbley said that almost all of the many urinalyses that
Mother took were negative but that, based on the hair follicle test results, it
appeared that Mother had four relapses. Chumbley testified that all Mother’s
hair follicle tests returned positive results and that Mother then refused to
submit to hair follicle tests after April 30, 2024, which violated court orders.
A parent’s drug use may support termination under subsection (E). See
J.O.A., 283 S.W.3d at 345; see also In re R.R.A., 687 S.W.3d 269, 278 (Tex.
2024). And the parent’s failure to remain drug free while her rights to her
child are in jeopardy may also support a finding of endangering conduct under
subsection (E). See Vasquez v. Tex. Dep’t of Protective & Regul. Servs., 190
S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). In general,
a parent’s conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well-being of the child. In re R.W., 129
S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
In the Interest of A.R.G., a Child Page 10 Mother points out that there was no evidence that she was ever arrested
or had any criminal history, that almost every urinalysis drug test that she
took came back negative, and that there was no evidence that A.R.G. had drugs
in his system. Mother also attempts to explain the hair follicle test results by
stating that it could have been due to her hairstyle. Mother further asserts
that the hair follicle tests “were showing a downward trajectory with one
relapse, but then again, a downward trajectory.” Mother argues that her drug
testing therefore showed that she was attempting to abstain from using all
drugs and, thus, that the drug testing could not be sufficient to establish
endangerment as there was no indication that the drug use was habitual or
chronic. We disagree.
The evidence showed that the Department’s first involvement with
Mother was in June 2019 when A.L. tested positive for cocaine at birth. Mother
thereafter continued to test positive for amphetamines, methamphetamine,
and cocaine on multiple hair follicle drug tests throughout that case. And the
conservatorship worker in that case testified that Mother was not able to show
a period of sobriety during that case such that Mother could be an option to be
A.L.’s managing conservator at that time. The evidence then showed that the
Department became involved with Mother again because of the incident that
happened in September 2023. A urine screen that Mother took at the hospital
after the incident was positive for cocaine and methamphetamine. And after
In the Interest of A.R.G., a Child Page 11 that, Mother’s hair follicle tests returned positive results until Mother simply
refused to take the drug tests. When asked if Mother provided a reason for
why she would not submit to hair follicle tests, the caseworker testified that
Mother stated that she felt like her hair would always test positive for drugs
because it was styled in locks. But the caseworker further testified that she
has had other cases with people who have had locks and that they were able to
have negative drug tests.
Considering the foregoing, we conclude that the evidence was legally and
factually sufficient to establish that Mother engaged in conduct that
endangered the physical or emotional well-being of A.R.G. See TEX. FAM. CODE
ANN. § 161.001(b)(1)(E). Moreover, having concluded that the evidence was
legally and factually sufficient to support the trial court’s finding that Mother
violated subsection (E), we need not address Mother’s arguments that the
evidence was legally and factually insufficient to support the trial court’s
findings that she violated subsections (D), (O), and (P). See In re N.G., 577
S.W.3d 230, 232–33, 237 (Tex. 2019) (per curiam).
BEST INTEREST OF THE CHILD
Mother next contends that the evidence was insufficient to support the
trial court’s finding that termination was in the best interest of the child.
In determining the best interest of a child, several factors have been
consistently considered, which were set out in the Texas Supreme Court’s
In the Interest of A.R.G., a Child Page 12 opinion of Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley
factors include: (1) the desires of the child; (2) the emotional and physical
needs of the child now and in the future; (3) the emotional and physical danger
to the child now and in the future; (4) the parental abilities of the individuals
seeking custody; (5) the programs available to assist these individuals; (6) the
plans for the child by these individuals; (7) the stability of the home; (8) the
acts or omissions of the parent that may indicate the existing parent-child
relationship is not a proper one; and (9) any excuse for the acts or omissions of
the parent. Id. This list is not exhaustive but simply identifies factors that
have been or could be pertinent in the best-interest determination. Id. at 372.
There is no requirement that all these factors be proven as a condition
precedent to parental termination. See C.H., 89 S.W.3d at 27. 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. Id.
In fact, while no one factor is controlling, the analysis of a single factor may be
adequate in a particular situation to support a finding that termination is in
the child’s best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied).
The Holley factors focus on the best interest of the child, not the best
interest of the parent. Dupree v. Tex. Dep’t of Protective & Regul. Servs., 907
S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). And evidence relating to the
In the Interest of A.R.G., a Child Page 13 predicate grounds under subsection 161.001(b)(1) may be relevant to
determining the best interest of the child. See C.H., 89 S.W.3d at 28.
At the time of trial, A.R.G. was two years old. He therefore did not
testify, but the evidence indicated that he was bonded to Mother. Mother
further notes that A.R.G. is healthy and that he did not need any interventions
when he was removed from her care. Mother also asserts that she “complied
with all her services and was an appropriate caregiver to the child, with no
concerns regarding her parenting skills – only the alleged lack of housing and
alleged continued drug use, which was not actually shown in the drug testing
results.”
We agree that the evidence showed that Mother was generally
completing her services in this case, but as discussed above, the evidence also
indicated that Mother had been using illegal drugs over a period of years,
despite participating in substance abuse treatment. And it is well established
that a parent’s use of illegal drugs and drug-related criminal activity may
qualify as conduct that endangers a child’s physical and emotional well-being.
In re A.R.C., 551 S.W.3d 221, 227 (Tex. App.—El Paso 2018, no pet.); see J.O.A.,
283 S.W.3d at 345. Furthermore, evidence of past misconduct or neglect can
be used to measure a parent’s future conduct. See Williams v. Williams, 150
S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied); Ray v. Burns, 832
S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is often prologue.”); see
In the Interest of A.R.G., a Child Page 14 also In re V.A., No. 13-06-00237-CV, 2007 WL 293023, at *5–6 (Tex. App.—
Corpus Christi–Edinburg Feb. 1, 2007, no pet.) (mem. op.) (considering
parent’s past history of unstable housing, unstable employment, unstable
relationships, and drug usage).
The evidence also showed that Mother had unstable housing throughout
this case. Roberson testified that when she was the conservatorship worker on
this case in late 2023, Mother said that she was staying with a friend. Mother,
however, did not intend for that place to be an option for A.R.G.’s return, so
Roberson was never able to see it. Instead, Mother said that she was going to
be looking to get her own apartment. Caseworker Chumbley testified that
before October 2024, Mother had then told her that she was staying with her
sister-in-law in Dallas. It was a residence that Mother wanted to be considered
as an option for A.R.G.’s return, but although Chumbley asked to see the home
several times, Mother never made it available to Chumbley to assess for safety
and appropriateness.
Chumbley testified that in October 2024, Mother then secured a
residence at an extended-stay hotel/apartment, and Chumbley was able to visit
the residence in October and December. The CASA testified that she was also
able to visit the home twice. The CASA stated that during the first visit, she
observed that the home was clean and that there was no smell. The CASA
testified that she felt that it would have been an appropriate place for A.R.G.
In the Interest of A.R.G., a Child Page 15 to live if the conditions continued to be the way that they were during that
visit. The CASA stated that during her second visit, however, while the home
still appeared visually clean and appropriate, there was a strong smell of body
odor. The CASA explained that this concerned her because Mother had had
similar issues in the home where she had been living at the outset of this case,
over a year before.
Chumbley then testified that based on Mother’s testimony at a hearing
to consider a motion for monitored return that had been held the week before
the January 30, 2025 trial, it had been Chumbley’s understanding that Mother
was still residing at the extended-stay property. In late December 2024 and in
January 2025, Chumbley had returned to Mother’s home for additional visits.
No one had answered the door at those times. When Chumbley followed up
with Mother, Mother asked Chumbley why she was just popping up at her
house and told Chumbley that she had just not been at home at those times.
But Chumbley recently learned that Mother had not been living at the
extended-stay property since December 2024. The general manager of the
extended-stay property testified that Mother had been given a notice to vacate
the property by noon on December 17, 2024, because Mother had been paying
her rent late and had then caused a disturbance in the office. The general
manager further stated that when they checked Mother’s apartment on
In the Interest of A.R.G., a Child Page 16 December 18, 2024, Mother had taken her things and left. The CASA
explained that this was extremely concerning
[b]ecause if [Mother] had had [A.R.G.] returned to her two weeks ago, we now know that we would have had no idea where he was living, if he was safe, clean, cared for, we would have no way of knowing and he’s two and cannot ask for help and cannot advocate for himself.
Chumbley additionally expressed her concerns that she was unaware of
any plan or routine that Mother had for A.R.G. if he were to be returned to her.
On the other hand, A.R.G.’s foster mother testified that she and her husband
would like to adopt A.R.G. into their family and to provide him a long-term
home. See In re J.D., 436 S.W.3d 105, 119–20 (Tex. App.—Houston [14th Dist.]
2014, no pet.) (“The fact finder may compare the contrasting plans for a child
by the parent and the Department and consider whether the plans and
expectations of each party are realistic or weak and ill-defined.”). At the time
of trial, A.R.G. had been in the current foster family’s home for a little over a
year, and the evidence indicated that A.R.G. was bonded to the foster family.
See A.R.C., 551 S.W.3d at 227 (“The need for permanence is a paramount
consideration for a child’s present and future physical and emotional needs.”).
The CASA testified that when A.R.G. first entered foster care, she was
concerned that he was unable to self-soothe or to follow a schedule. But the
CASA stated that at the time of trial, A.R.G. was “absolutely thriving” with his
foster family.
In the Interest of A.R.G., a Child Page 17 There is a strong presumption that it is in the child’s best interest to
preserve the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). However, considering all the evidence
here in the light most favorable to the trial court’s finding and considering the
evidence as a whole, we hold that a reasonable factfinder could have formed a
firm belief or conviction that termination of Mother’s parental rights was in
A.R.G.’s best interest.
In light of the foregoing, we overrule Mother’s sole issue and affirm the
trial court’s order of termination.
MATT JOHNSON Chief Justice
OPINION DELIVERED and FILED: June 26, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed CV06
In the Interest of A.R.G., a Child Page 18