in the Interest of A.W., a Child

• Court: Court of Appeals of Texas
• Decided: July 29, 2021
• Docket: 02-21-00058-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00058-CV ___________________________

IN THE INTEREST OF A.W., A CHILD

On Appeal from the 325th District Court Tarrant County, Texas Trial Court No. 325-679062-20

Before Sudderth, C.J.; Bassel and Womack, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

I. Introduction

When Amanda1 tested positive at birth for drugs in 2017, Appellant Mother

had already been through several child-protection cases with the Department of

Family and Protective Services (DFPS), and her estranged husband Bradley, who was

not Amanda’s father, had custody of Mother’s four older children. Two years later,

while trying to apprehend Appellant Father, a police officer or bounty hunter shot at

the car in which Amanda, Mother, and Father were riding. A bullet hit Father, and

the family fled to Oklahoma, where Father was apprehended. Amanda tested positive

for methamphetamine and was removed from Mother on March 7, 2019.

Father was incarcerated when Amanda was removed, and on July 8, 2019, he

pleaded guilty to possession of less than one gram of methamphetamine in exchange

for a 15-year sentence. He was incarcerated for the duration of the termination-of-

parental-rights case. Father’s parental rights to Amanda were terminated under

Subsections (D) and (E) (the endangerment subsections), Subsection (Q) (the

subsection under which a parent knowingly engaged in criminal conduct that resulted

in his conviction of an offense and confinement and inability to care for the child for

not less than two years from the date of filing the petition), and Subsection (2) (the

best interest subsection) of Family Code Section 161.001(b). In three points, Father

1 We use pseudonyms for the names of the child and her family to preserve the child’s privacy. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b).

2 complains that there was legally and factually insufficient evidence to support the trial

court’s endangerment findings or its finding that Father was unable to care for

Amanda for not less than two years from the date DFPS filed its petition to terminate

his parental rights due to his imprisonment.

During the case, Mother, pregnant with her sixth child, who had a different

father from Amanda, went into inpatient drug treatment and completed some of her

service plan but ultimately relapsed. Her parental rights to Amanda were terminated

under Subsections (D) and (E), (O) (the failure-to-comply-with-court-order

subsection), (P) (the endangerment-by-substance-abuse subsection), (R) (the child-

born-addicted-to-drugs subsection), and Subsection (2) of Family Code Section

161.001(b). In a single issue, she argues that the evidence is factually insufficient to

show that termination of her parental rights to Amanda was in Amanda’s best

interest. We correct the judgment2 and affirm it as modified.

II. Background

Father opted not to testify during the trial. DFPS called Mother and the

caseworker during its case in chief. Bert, Mother’s paramour and the father of her

2 The trial court could not terminate Mother’s parental rights under Subsection (R) because that ground was not pleaded in DFPS’s live petition. See In re J.R.S., 232 S.W.3d 278, 285 (Tex. App.—Fort Worth 2007, no pet.) (stating that the party seeking termination must have pleaded the conduct ground that the factfinder found). However, Mother does not challenge the sufficiency of the evidence to support the trial court’s findings on the remaining grounds under Section 161.001(b)(1), and the record contains sufficient evidence to support them.

3 new baby, Lara, testified during Mother’s case in chief. Jesse Caloway, a private

investigator, testified during the guardian ad litem’s case in chief. We set out their

testimony below in the order in which it was given.

A. Mother’s Testimony

Mother was born in 1982 and started using methamphetamine when she was

19 years old. Her husband Bradley introduced her to the drug. She was almost 40

years old at the time of the March 2021 termination trial and had been through

inpatient drug treatment three times—twice during the instant case—and outpatient

drug treatment four times

Amanda, who was born in October 2017, is one of Mother’s six children, none

of whom were in her possession at the time of the termination trial. Daisy, an 18-

year-old girl; Jeffrey, a 15-year-old boy; and nine-year-old twin boys David and

Richard were Mother’s children with Bradley, who has custody of them. Mother is

still married to Bradley, and she has standard visitation with her four oldest children.

Amanda’s biological father is Father. Mother became pregnant during the

pendency of Amanda’s case and gave birth to an infant girl, Lara, whose biological

father is Bert, who had a history of methamphetamine use. Lara was removed from

Mother in February 2021 when Mother tested positive for drugs.

Mother agreed that she had an extensive history with DFPS related to her

methamphetamine addiction but denied that there had been at least ten separate cases

4 involving her children,3 stating: “I know there was one involving my son at birth, my

twins at birth, [Amanda] at birth, then [Amanda] again, then this one with [Lara].”

Mother said that Amanda, Jeffrey, and David had been born positive for

methamphetamine but that David’s twin Richard had not been. Although DFPS had

offered services in each case, Mother had not worked the services diligently with her

four older children because when her relationship with Father began, she did not have

a vehicle, a home, or a job.

When Amanda tested positive for drugs at birth, Mother began working the

services and underwent outpatient drug treatment; she had been allowed to take

Amanda home from the hospital, and that case ended in 2018. Amanda was a year-

and-a-half old in March 2019, when the instant case began, and she turned three while

in foster care.4

Mother agreed that in March 2019, she had been in a relationship with Father

that had involved drug use by both of them and “[a] lot of domestic violence.”

3 Mother’s caseworker testified that Mother had been given the opportunity to work services with DFPS at least six times; the instant case involved the fifth removal of a child from Mother, and she was given at least two different opportunities to work services during the instant case. Mother’s caseworker said that Mother’s DFPS history began around 2003 and that all of it involved methamphetamine use.

During the course of the case, Mother moved to extend the case’s dismissal 4

date so that she could finish her service plan. See Tex. Fam. Code Ann. § 263.401. DFPS subsequently requested an extension for a monitored return, see id. § 263.403, and then to retain the case on the docket pursuant to emergency orders issued by the Supreme Court of Texas in response to the Covid-19 pandemic.

5 Mother said that she had always tried to keep Amanda in a separate room when she

and Father were using drugs but “she was still several times in [the San Angelo5] home

where [Mother and Father] were using drugs.” According to Mother, during their

relationship, Father had been involved in “[a] lot of criminal activity,” and she did not

believe that he was a safe person. She agreed that it had been an “[e]xtremely bad

choice” to remain with Father at that time, given his criminal history.

In March 2019, a police officer,6 who had a warrant for Father’s arrest, shot

through the middle of the windshield of the car in which Mother, Father, and

Amanda were sitting—Father had been in the driver’s seat, Mother had been in the

front passenger’s seat, and Amanda had been directly behind the driver’s seat in a car

seat.7

According to Mother:

We were out of town in Fort Worth, downtown, and we were meeting my brother to have dinner, and we were -- [Father] was driving the vehicle. I was in the passenger seat, and [Amanda] was in her car seat behind him. And we stopped in the parking lot to talk to my brother.

At the time of the termination trial, Mother was living in the same home, 5

where she provided caregiver services to a hospice patient. Mother said that the house was hers, courtesy of the patient, and that the patient had not been aware that she and Father had been using methamphetamine.

Mother said that she clearly remembered seeing a badge around the neck of 6

the man standing in front of the car with the gun but said that the man had not been dressed like a police officer.

Mother acknowledged that the bullet would have hit Amanda if Father had 7

been just a few inches over.

6 [Father] rolled his window halfway down to talk -- to correspond with my brother, and out of nowhere two men, one jumped in front of the car, one jumped on the driver’s side door of the car, one had a gun pointed at the front of us in our face, and the other one was wrestling with [Father] through the window on the driver’s side.

Mother said that she had known that Father had a warrant out for his arrest

and that the men with guns turned out to be bounty hunters or police—she was not

sure which. Mother stated that when the glass flew past her face, she thought

Amanda might have been hit by a bullet. According to Mother, before the gun was

fired, she had just wanted to grab Amanda, get out of the car, and run away, but there

was no time because everything “was just so fast and confusing.” Mother denied

having been under the influence of methamphetamine at the time, although she

agreed that she had been actively using methamphetamine in March 2019.

After the gun’s discharge, Father hit the gas and drove the car into the shooter,8

and he did not stop until the pursuit through downtown Fort Worth ended. Mother

said that they were chased, “flying through red lights, sliding around corners.” She

stated, “It[] was very dangerous and extremely scary,” and she had not known “if the

car was going to get flipped over, if [they] were going to hit head on traffic.” After

successfully evading pursuit, Father parked by a gas station dumpster, and Mother

jumped out, pulled Amanda from her car seat as quickly as she could, and checked

Amanda head-to-toe for injuries.

8 The caseworker testified that charges were filed as a result of that incident but were later no-billed.

7 Mother said that Father told her, “Hurry up and get up in the driver’s seat, you

need to drive us out of here.” Mother said that she wished she had thought to take

Amanda into the gas station instead and to take Father to a hospital in Fort Worth but

her choices that day were “the wrong ones.” Instead, she put Amanda back into the

car seat and got behind the wheel. Although she begged Father to go to the hospital,

he “adamantly refused to do that.” Father directed her to drive to one of his drug-

related friends—someone who sold drugs to Father and used drugs with Father—

because he wanted to get high on the way to Oklahoma. Father and his friend rode

together in the back seat and smoked methamphetamine all the way to Oklahoma.

Mother said that in the first Oklahoma town they reached, she rented a motel

room, gave Father the keys to the car, and told him that she did not care what he did

from that point on. Father, who had been shot in the upper right chest, went with his

friend to the hospital. They then returned to the motel and stole Mother’s money,

“every penny that [she] had to [her] name.” Mother, who had fed and bathed

Amanda and herself and then gone to bed, slept “until the police came knocking on

[her] door the next morning” to tell her that they were impounding her car. The

Oklahoma police arranged for Mother and Amanda to be returned to Fort Worth,

and upon their return, 18-month-old Amanda was removed from Mother. Amanda

was taken to Cook Children’s Medical Center for a hair-strand drug test and tested

positive for methamphetamine.

8 Amanda was temporarily placed into foster care and then with Father’s sister.

Father’s sister subsequently chose not to be Amanda’s long-term placement because

of concerns for the safety of her family and Amanda from Father. When asked about

those concerns, Mother said that she and Father’s sister “came to agree on the same

worries and concerns and fears of [Father].” Mother said that she had concerns for

her own safety when Father was released from prison. Amanda returned to foster

care.

Mother went to inpatient drug treatment in June 2019 and again in February

2020. She met Bert at the end of July 2019, after her first inpatient treatment, and he

moved in with her about a month later. Mother and Bert announced their

engagement in December 2020, but they subsequently postponed it until she could get

divorced from Bradley.

Lara was born in June 2020. In July or August 2020, Mother had been very

close to receiving a monitored return of Amanda.9 Mother stated that Bert had lived

at a different address since August 12, 2020, two weeks after the court asked her to

have him move out10 and ordered that Bert was not allowed to be around Amanda

Mother’s caseworker testified that the monitored return failed because of 9

Mother’s “inability to understand the concerns to be protective from [Bert].”

Mother stated that because of the Covid-19 pandemic, finding housing in the 10

area had been difficult. “[I]t took two weeks before we could get him into his own place.”

9 during Mother’s unsupervised visits. Bert had refused to take any drug tests in

Amanda’s case or in Lara’s case.

Mother’s first unsupervised weekend visit in her home with Amanda took place

on September 12, 2020. During her first (and only) unsupervised weekend visit with

Amanda, Mother asked Bert to go with them to the park to help her with Lara so that

she could play with Amanda on the playground. Mother acknowledged, “It was an

extremely bad choice that I made. I regret making that choice. I realize that the park

was not that important for us to -- you know, to do, and I extremely regret that

choice.” Future unsupervised weekend visits were cancelled because Mother had

failed to follow the rules put into place for Amanda’s safety. Mother said between

August 12, when Bert moved out, and December, when she used drugs with him, Bert

had stayed over at her home two or three days a week, sometimes overnight. When

the guardian ad litem asked Mother, “Isn’t it true that no one really knew that [Bert]

was living in your home until I came to visit your home and was informed that he was

living there?” Mother replied, “[T]hat’s probably accurate.”

The guardian ad litem then asked Mother whether she was aware that a private

investigator had been conducting surveillance of her home at the end of September

and early October 2020. Mother acknowledged that she had become aware of this

and that the recorded video had been provided to her attorney. She nonetheless

denied that Bert had been living in her home during that time. Twenty-nine

surveillance clips, ranging from just over a minute to almost 15 minutes, were

10 admitted into evidence. Taken between Wednesday, September 30, 2020, at 5:42 p.m.

and Sunday, October 4, 2020, at 4:46 p.m., the clips illustrate Bert’s constant presence

around Mother’s home.

When questioned about her relationship with Bert, Mother said that they were

still in a romantic relationship and denied having told her caseworker that she had no

plans to live separately from Bert:

Q. I forgot to ask, [Mother]. You have already talked about your choice to remain with [Father], and you said that was a bad choice. [Bert] also has [a] history of methamphetamine use. You are very vulnerable and have a history of meth use; is that right?

A. Yes.

Q. Do you think it’s a bad choice to remain with [Bert] considering that you were both former meth users and you had your most recent relapse in December?

A. No, ma’am, I don’t think that it is a bad choice to remain in a relationship with [Bert].

But Mother admitted that her last drug use had been in December 2020 and

that Bert had been involved in that relapse. Mother explained that she had found

methamphetamine in Bert’s toolbox when he asked her to bring him some tools, so

she called her oldest daughter to watch Lara for a few hours. Mother said that her

intent had been to confront Bert about why he had the drugs, but instead, they had

used them. Mother said, “That’s part of the disease of addiction.” Three or four

hours after consuming the drugs, Mother went to pick Lara up. DFPS removed Lara

11 from her because of the relapse. Yet Mother said that she did not feel like Amanda or

Lara needed to be protected from Bert.

Mother said that she had not been aware of Bert’s past drug possession charge

from 2014 or 2015 or that he might have been using drugs when she chose him as a

partner. She learned about his criminal history when she overheard him on the phone

talking about transferring his probation. She tried to break off the relationship, but

“it was extremely hard to do seeing that [she] just had a child with him and being his

first child.”11 Mother said that to continue her relationship with Bert, he would have

to do everything DFPS told him to do in Amanda’s case and in Lara’s case and prove

to her that he was not using drugs.

Bert did not volunteer to participate in Amanda’s case, and Mother was not

sure whether he had jeopardized the monitored return. She stated, “I know that him

not volunteering to cooperate in the case or to volunteering services that it -- I was

severely punished for it.” Mother acknowledged that her caseworker had told her that

her February 2021 drug test was “slightly positive.” In March 2021, she finished her

second round of outpatient therapy, which she began after the drug-use relapse that

caused DFPS to remove Lara from her.

11 Mother testified that 38-year-old Bert was a plumber, had never been married, and had no children other than Lara. Mother said that Bert was a very good father and a very hard worker and that he no longer used drugs.

12 During cross-examination by her attorney, Mother agreed that over the course

of the case, she had come to understand that the decisions she made could put

Amanda in danger. Mother listed the following as steps she had taken to protect

Amanda:

I have been doing extensive counseling. I have been through extensive trauma counseling, domestic abuse counseling, drug treatment. I have made better decisions on my relationship, and I go to [Narcotics Anonymous (NA)] several days a week[]. I have a sponsor. I’m working my 12 steps. I’m in a very -- very involved in my recovery program.

Mother added that she had “completed service plan after service plan, and even in the

case with [Lara]” she was almost completely done with her service plan. And Mother

insisted, “I am going to work every single day of my life on my recovery to make sure

that [drug use] is not something [Amanda] has to live with.”

Mother testified that she had reconnected with some of her older children and

saw them regularly, “[s]ometimes daily, sometimes a couple of times a week” and

described herself as “very involved in every one of their lives.” She stated that when

she was not working her services, she was spending time with her children.

According to Mother, Amanda was bonded with her siblings, and her other children

were supportive of Mother’s sobriety and counted on her to remain sober. Mother

said that she had learned in therapy that she was very codependent.

Regarding employment, Mother provided live-in assistance to James, an elderly

man who suffered from terminal leukemia, and she worked odd jobs, “housekeeping

and stuff like that.” Mother stated that she would be able financially to take care of

13 Amanda because she did not pay for housing and owned her vehicle. She also earned

a weekly check from James. Mother said that if Amanda was returned to her, she

would probably put her in day care and get a full-time job but that her schedule was

full at the time of the trial with working all of the DFPS services. Mother indicated

that she would like to go back to school and get her pharmacy-tech license back.

Mother said that her bond with Amanda was one of the most important things

in her life, and she traveled 400 miles round-trip for every visit with Amanda. As she

pointed out, no one had criticized Mother’s home or her behavior at visits as being

inappropriate. Mother described her support system in San Angelo. She had an aunt

and uncle who lived a few blocks away from her; her other four children lived three

blocks behind her; and she had what she described as a very good co-parenting

relationship with Bradley.12 Mother’s brother was also in San Angelo, as was her NA

group, her sponsor, and her recovery program.

During cross-examination by Father’s attorney, when asked how long the court

should wait for her to continue to make bad choices for Amanda’s safety before

terminating Mother’s parental rights, Mother declared, “I’m not exactly sure how to

answer that, but every single day I make plenty of right choices and good choices.

12 Mother said that there had been minor domestic abuse before she and Bradley had children and that their relationship had been rocky when they were together. She said that when he first received custody of their four children, she had felt like he had used the children against her but that their relationship had improved over time.

14 And, yes, I’m not perfect, and I will make mistakes for the rest of my life, so I’m not

exactly sure how to answer that. But there’s not a day that I’m not trying to do the

very best for myself and for my children.”

Mother asked the court not to terminate her parental rights, to name DFPS as

Amanda’s managing conservator, and to name her as possessory conservator. During

cross-examination by Amanda’s guardian ad litem, Mother also asked that if Amanda

was returned to her, that

some kind of protection be put into place to [e]nsure that, you know, [Father] didn’t just storm through the house and run off with the baby or -- or -- you know, because, . . . he has no problem with physical violence, so that -- you know, there was nothing [she] can do to be able to stop him if he wanted to just come in [her] house take [Amanda] from [her].

Mother agreed that her relationship with Father had been unhealthy,

characterized as it was by domestic abuse, criminal activity, and drug use, and she said

that it had been her last toxic relationship.

Mother’s long-term plan was for her, Bert, Amanda, and Lara to be a family

and live together if Bert worked DFPS services and improved at getting and staying

clean from drugs, “and all that.”

15 B. Caseworker’s Testimony

Joan Hall, a permanency specialist with Our Community Our Kids (OCOK),13

testified that since September 2020, when DFPS had prepared for a monitored return

of Amanda to Mother, Mother had “continued to have concerning issues regarding

her romantic relationships” and had relapsed into drug use. During Hall’s testimony,

the trial court admitted into evidence Amanda’s March 2019 medical records from

Cook Children’s Medical Center, which showed that Amanda had tested positive for

methamphetamine, and Mother’s June 2020 and December 2020 drug test results,

which showed that Mother had tested positive for methamphetamine. Hall agreed

that Mother had a long pattern of methamphetamine use and child neglect.

Hall pointed out that Mother’s continuing to test positive for drugs violated the

requirements of her court-ordered service plan and that she understood that DFPS’s

concerns were Mother’s sobriety, her ability to be protective of her children, her

ability to make good decisions for herself and the children, and her ability to maintain

healthy relationships. Hall believed that Mother had continued to use drugs after

December 2020 because she had tested positive on February 2 and because Mother

had exhibited a pattern of dishonesty throughout the case.

OCOK is a subcontractor of the State of Texas that provides community- 13

based care, case management, and family services for DFPS. See “What We Do and Why It Matters,” https://ourcommunity-ourkids.org/ (last visited July 23, 2021).

16 Hall related that DFPS was concerned about Bert’s drug history, which could

make Mother vulnerable to relapse, and his failure to cooperate in the case by refusing

to take drug tests. DFPS was also concerned about the dynamics of his relationship

with Mother because “he might be a little controlling of [her].” Hall said that she

believed Bert stayed at Mother’s home most of the time and that until the day of trial,

Mother had not provided Bert’s address, even though Hall had asked for it several

times. According to Hall, Mother’s testimony that day was also the first time Mother

had admitted that Bert had been with her and the children at the park. And she

pointed out that Mother had admitted to Hall that her brother had stayed with her

only after Hall received the surveillance report showing that he had been there.14

Hall acknowledged that Mother had complied with her outpatient conditions,

was bonded with Amanda, and behaved appropriately at visits, but she nonetheless

opined that it was in Amanda’s best interest to terminate Mother’s parental rights

because Amanda had lived with others for two years. Hall stated that it would take an

unknown amount of time for Mother to get to the point where Amanda could safely

be returned to her, and the child needed permanency.

Hall testified that Father, who had been adjudicated as Amanda’s father after a

DNA test was conducted, was sentenced to 15 years’ confinement in exchange for

14 The trial court had ordered Mother to provide identifying information (name, date of birth, and social security number) for all persons staying in or residing in her home and had forbidden any frequent visitors with criminal history.

17 pleading guilty to possession of a controlled substance of less than one gram

(methamphetamine), a state-jail felony enhanced to a second-degree felony, on July 8,

2019.15 See Tex. Health & Safety Code Ann. § 481.115. Father accepted the plea

bargain after DFPS filed the lawsuit. Hall said that she had never spoken with Father

in person, by phone, or over Zoom but that they had communicated via letters and a

courtesy worker had tried to see him in person and had talked to him over the phone.

Hall had created a service plan for Father, and she testified that he had

completed some services that were available to him in jail, but he was unable to work

on other services while incarcerated because they were not available in jail. Although

Father had attempted to have contact with Amanda—he had sent letters to his

brother-in-law when Amanda was in his sister’s care—he had not had any contact

with her. She opined that it was in Amanda’s best interest to terminate Father’s

parental rights.

Hall stated that Amanda had originally been placed in an adoption-motivated

foster home, from March 2019 to June 2019, but she was later moved to Father’s

sister, who initially indicated that she might be a permanent placement for Amanda.

When Father’s sister realized that it might not be safe for her family to keep Amanda,

she changed her mind. At the end of November 2020, Amanda was returned to the

original, adoption-motivated foster home, where Lara had also been placed and where

Petitioner’s Exhibit 6, a copy of Father’s judgment of conviction, was 15

admitted into evidence.

18 Amanda appeared healthy and happy. In total, Amanda had been with the foster

family for about seven months. She called her foster parents “Mom” and “Dad,”

although she also called Mother “Mom.” If the trial court terminated Mother and

Father’s parental rights, DFPS’s plan was for Amanda to be adopted by her foster

family.

Hall agreed that Father loved Amanda and had said that he was willing to do

anything that would ensure Amanda’s safety. However, he was serving a lengthy

prison sentence, impeding his ability to show how he could care for Amanda, and

Hall stated that Father would also need to show significant behavioral changes

regarding his drug use, criminal activity, and violence towards others before Amanda

could be returned to him. Hall agreed that Father would probably be eligible for

parole in July 2021, but Amanda would be around 17 years old if Father served his full

sentence. And based on Mother’s testimony about her relationship with Father, Hall

said that she would not feel comfortable returning Amanda to him right after he was

released from prison.

Hall had received two or three letters from Father during the case. In Father’s

April 11, 2020 letter, which was admitted into evidence, Father expressed concern

about Mother’s ability to care for and protect Amanda:

I have been informed of [Mother’s] pregnancy. I also believe she manipulated [DFPS] and myself and withheld this information at court to get me to agree to her deal she worked out. I would also think that [DFPS] would not have agreed either if they would have known she was pregnant and failed multiple drug test[s] while pregnant. [Mother] told

19 me over the phone[,] which was recorded by Hood County “last week of July” that this [Bert] dude was just her drug dealer. Her brother . . . told me the same thing. I am concerned with [Amanda] being around him and I don’t believe [Mother] will stay sober for either child while he’s around.

[Mother] has been using a hair stripper called Oops that you buy at Walmart or at a salon to strip and clean her hair then dies [sic] her hair back and interfears [sic] with the results of a hair follicle [drug test]. She uses baking soda to pass urine test[s] or has someone else pee in a cup which she then puts in a cond[o]m and then puts that inside her private to pass the urine test. I have witnessed her do these things to pass drug test[s] for [DFPS] when [Amanda] was born.

Ms. Hall[,] I’ve matured a lot since being shot. The madness has to stop and I can’t let [Amanda] be subjected to that life. I sincerely pray every day for [Mother’s] sobriety and health. I love her with all my heart but I don’t believe she will stay sober for [Amanda] and her new baby.

Whatever choice [DFPS] decides I know will be in these two [b]abies’ lives will be in their best interest and I know that I did the right thing in telling the truth.

The very first hair follicle in this case she stripped and d[y]ed her hair at John and Shinly Rieser’s house if you need more proof than my word.

I love [Mother] very much but she’s not going to change.

P.S. I’m also concerned with [Mother’s brother] returning [Amanda] to [Mother] if he is allowed to adopt [Amanda]. I may be over[re]acting the[re] but if he is approved can we make sure he knows the consequences for doing this. He really is a good man.

Hall acknowledged that during the case she had had some concerns that

Mother had been altering her hair or doing other things to pass drug tests that she

would not otherwise have passed. Some of the court orders specifically ordered

Mother not to modify her hair to address those concerns.

20 C. Bert’s Testimony

After DFPS rested its case, Mother’s counsel called Bert to testify. Bert

testified that he and Mother had met in 2019 and that Mother became pregnant with

Lara soon after they met.

Bert knew that Mother had a long pattern of addiction, but he had also seen

her work on her sobriety. He agreed that Mother had relapsed during their two-year

relationship. Bert stated that he understood DFPS’s concerns about his being in

Mother’s life and his refusing to take a drug test. Bert admitted that he had

accompanied Mother and Amanda to the park:

Q. Okay. And were you -- did you understand that you were not to have any contact with [Amanda] whenever [Amanda] came home for an unsupervised visit in August of 2020?

A. Yes, ma’am.

Q. And were you around her on that weekend?

A. I -- I was there for a park visit very briefly, other than that I was not.

Q. So -- but you knew that you were told not to have contact with her, right?

Q. And so why didn’t you just say no when she came to pick you up?

A. Because I wanted to see [Amanda], and it was just -- it was a mistake. And I wish I could go back and fix it now. I should’ve just stayed at my place and not came around, and I am very sorry. And, like I said, I just -- I just want to be able to try to fix this.

21 Q. And what do you mean by fix this?

A. I’m prepared to do any services necessary, take any drug tests necessary immediately today, anything y’all need I -- I am more than willing to do.

And Bert agreed that when he visited Amanda at the park, he had voluntarily violated

the court order.

Bert had moved out about two weeks after the trial court told him that if he

was not willing to take a drug test, he had to move out of Mother’s house before

Mother could have a monitored return of Amanda. He said, “I have stated that I

would be more than willing to do anything that I can now, and I am very, very sorry

for not cooperating before. I just want to make this right.” He continued, “I realize

what I did wrong, and I -- I should have cooperated before, and I -- and I am very

sorry.” Bert indicated that he planned to work services in Lara’s DFPS case “and do

anything [he had] to and need[ed] to do for . . . [his] daughter to come home.”

Bert continued to spend time at Mother’s house after he moved out because he

had been repairing the bathroom floors and trying to see Lara as much as he could.

He said that he was not aware of any restrictions on his being around Lara at that

time. Bert said that he still lived separately from Mother although he went “over to

her house occasionally.”

Bert said that Mother was “constantly busy” at her NA meetings on Zoom or

with her counselor on Zoom, stating, “her life is full . . . of her daily tasks that she has

to complete for this.” He said that getting Amanda back was “the only thing on

22 [Mother’s] mind 24 hours a day.” He felt like Amanda should be returned to Mother

if she could stay clean, stating, “She is a very good mother, and she’s very dedicated.”

Bert denied that Mother had done anything to her hair or urine to alter her drug test

results.

On cross-examination, DFPS’s counsel asked Bert about his probation. Bert

testified that he had received probation for possessing under a gram of

methamphetamine and that at the end of his probation, he spent a month in county

jail. But Bert said that it was his only drug charge and the only charge on his record.16

When asked about his methamphetamine use, Bert testified that it was an isolated

incident:

Q. How long have you been using meth?

A. I used it then, and I -- and I -- I haven’t used except for this last time. I made a mistake. It was moments of -- it was just –

Q. So you’ve -- the meth that you smoked in December of 2020, you smoked that with [Mother]; is that right?

Q. And where was the meth that you smoked?

A. Where was the meth?

Q. Yeah. Where was it being kept?

During cross-examination, Bert said that he paid a fine in Ohio for 16

discharging a firearm but was not arrested, charged with an offense, or sentenced, and that he did not currently own a gun.

23 A. It was actually found in a tool bag of mine -- well, not a tool bag of mine. It was tool bag that I got from [Mother’s] house out of the shed. Whenever I moved out -- whenever I had the court order to move out I just threw tools in a tool bag –

Q. Did you buy that meth?

....

A. No, ma’am.

Q. Do you know where it came from?

A. It came from a tool bag that was in the shed at [Mother’s] house.[17]

Q. Is that the first time you have seen meth since your 2016 charge?

Q. And have you taken a drug test for [DFPS]?

A. I have not, but I’m more than willing to.

Q. Why weren’t you going to -- why were you not willing to take a drug test in September?

A. Okay. So my whole experience and everything that I have ever heard about CPS has been nothing but horror stories, and having a new daughter I -- I was scared that I -- I just didn’t want to cooperate, because I didn’t want them being introduced into my life and me having problems with them, so I tried to separate myself from it.

17 During cross-examination, the guardian ad litem asked Bert, “Why in the world would you decide to use meth that was found in a tool bag found in a shed?” Bert replied that he had made a mistake in a moment of weakness.

24 Bert also explained that because he was not a party to Amanda’s case, he did not feel

that he was required to comply with DFPS’s request but claimed that he would have

tested negative in September if he had taken the requested drug test.

During cross-examination by the guardian ad litem, in response to the question

about why it took almost nine months for him to agree to cooperate in the case, Bert

said that he had not understood how much it had hurt Mother not to have Amanda

until his own child, Lara, was removed. Bert said, “[B]efore I went through it I -- I

couldn’t really understand, and I understand now, and I -- I really just wish that I

could go back in time and fix it but I can’t. All I can try to do is make it better.”

The guardian ad litem then asked Bert why he had failed to cooperate with his

own child’s case, but he denied that he had failed to cooperate:

Q. Now, back at the time of [Lara’s] birth there was an investigation. Why didn’t you cooperate with that investigation when it involved your own child?

A. Why didn’t I cooperate? I did cooperate. I -- I spoke with -- I can’t remember her name, the -- I spoke with the woman on the phone all the time. She came to house, I met with her, talked with her, everything that she asked.

Q. Did you take a drug test at that time?

A. No.

Q. Did you tell them that you were living in the home full-time?

A. I -- I don’t honestly recall exactly at -- at -- exactly at that time. I don’t know that I was asked that.

25 Q. Isn’t it true that you decided to move out because you knew that you would still be able to see [Lara] anytime you wanted?

A. Well, no one -- no, I didn’t know that I couldn’t. I moved out because I was told that I had to. If I didn’t do the drug test I had to move out.

Bert also denied that he had often stayed overnight at Mother’s house, claiming

that he had been there to replace the floors, repair the bathroom, and see his daughter

and if he was there at night, it was because he “just hadn’t left yet.” He pointed out

that he saw himself in only a few of the photos that were taken when the house was

under surveillance. Bert testified that he smoked cigarettes and that he smoked either

in front or in back of Mother’s house but not inside Mother’s house. And when

asked if it would surprise him to know that surveillance had picked him up coming

out of Mother’s house to smoke on the front porch all throughout the night each

night of five days of surveillance, Bert replied, “I’d be very surprised.”18

D. Private Investigator’s Testimony

Jesse Caloway testified that he was a private investigator hired to conduct

surveillance of Mother’s San Angelo home and that he conducted that surveillance,

from September 30, 2020, through October 4, 2020, using an “unmanned surveillance

platform,” to-wit, recording video. Caloway set up the equipment, deployed it,

brought it back in, and downloaded the video. From the surveillance video, he

Only one nighttime clip was admitted into evidence, and that clip, from 18

Friday, October 2, 2020, taken at 10:01 p.m., did not clearly show Bert’s presence.

26 prepared 29 video clips, which were admitted into evidence without objection. Many

of the clips show Mother and Bert leaving Mother’s house with a baby and getting

into and out of Mother’s vehicle.

E. Paternal Aunt’s Testimony

Monica, Father’s sister, testified that Amanda had lived with her family from

June 2019 to November 2020. She described Amanda as very intelligent, articulate,

and able to tell what she saw and felt. Monica related that when Amanda returned

from her weekend visit with Mother in San Angelo, the two-year-old told her that

Bert had gone to the park with them in the car, which was consistent with Mother’s

trial testimony. Monica said that she knew that Bert was not supposed to be around

that weekend, and she raised her concerns about it with Hall and the guardian ad

litem.

Monica reported that she had seen Mother and Father only three or four times

over the course of several years because they lived “totally different”—and inherently

inconsistent—lifestyles. Specifically, Monica said that Mother and Father lived a

lifestyle of criminal activity and drug use and explained that “we don’t live like that.”

Monica had maintained a relationship with Amanda’s foster parents and had

seen them interact with Amanda. According to Monica, the foster parents had a good

relationship with Amanda, and Amanda was very comfortable with them. Monica

testified that it would be in Amanda’s best interest to be adopted by the foster family

because they loved her. She also felt like she would be able to maintain a relationship

27 with Amanda if the foster family adopted her. Monica had not seen Mother interact

with Amanda.

F. Guardian Ad Litem Report

The guardian ad litem recommended adoption by Amanda’s foster parents as in

Amanda’s best interest.

G. Trial Court’s Ruling

At the conclusion of the trial, the trial court noted that it was a hard case and

that although the court was naturally inclined to give people second chances,

“children have a finite amount of time they can put up with parents and their inability

to be good parents to them.” The trial court expressed sympathy for the parents but

explained that Amanda “should not have to give the rest of her life giving parents the

opportunity to grow up and be the parents that they need to be.”

III. Sufficiency

Father challenges the legal and factual sufficiency of the evidence to support

the trial court’s termination of his parental rights based on its Subsection (b)(1)

findings—endangerment under Subsections (D) and (E) and imprisonment under

Subsection (Q). Mother challenges the factual sufficiency of the evidence to support

the trial court’s termination of her parental rights based on its Subsection (b)(2)

finding—Amanda’s best interest.

28 A. Standards of Review

For a trial court to terminate a parent–child relationship, the party seeking

termination must prove two elements by clear and convincing evidence: 1) that the

parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and

2) that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b);

In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex.

2005). Evidence is clear and convincing if it “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; E.N.C., 384 S.W.3d at 802.

To determine whether the evidence is legally sufficient in parental-termination

cases, we look at all the evidence in the light most favorable to the challenged finding

to determine whether a reasonable factfinder could form a firm belief or conviction

that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam). We

assume that the factfinder settled any evidentiary conflicts in favor of its finding if a

reasonable factfinder could have done so. Id. We disregard all evidence that a

reasonable factfinder could have disbelieved, and we consider undisputed evidence

even if it is contrary to the finding. Id. That is, we consider evidence favorable to the

finding if a reasonable factfinder could, and we disregard contrary evidence unless a

reasonable factfinder could not. See id. The factfinder is the sole judge of the

witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).

29 We must perform “an exacting review of the entire record” in determining the

factual sufficiency of the evidence supporting the termination of a parent–child

relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due

deference to the factfinder’s findings and do not supplant the judgment with our own.

In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). We review the whole

record to decide whether—as challenged here by Father—a factfinder could

reasonably form a firm conviction or belief that DFPS proved either of the

endangerment grounds,19 and—as challenged here by Mother—a factfinder could

reasonably form a firm conviction or belief that DFPS proved the best-interest

ground. See Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex.

2002). If the factfinder reasonably could form such a firm conviction or belief, then

the evidence is factually sufficient. C.H., 89 S.W.3d at 18–19.

B. Endangerment

Under Subsection (D), DFPS had to prove that Father knowingly placed or

knowingly allowed Amanda to remain in conditions or surroundings that endangered

her physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D).

19 Subsection (M) allows a trial court to terminate the parental rights of a parent whose parent-child relationship with another child was terminated based on an endangerment finding under Subsection (D) or (E) (or an out-of-state-equivalent). Tex. Fam. Code Ann. § 161.001(b)(1)(M); see id. § 161.001(b)(1)(D), (E). Thus, when a parent challenges a Subsection (D) or (E) finding, due process and due course of law demand that we address the finding and detail our analysis. In re N.G., 577 S.W.3d 230, 235, 237 (Tex. 2019) (per curiam); see also In re C.W., 586 S.W.3d 405, 407 (Tex. 2019) (per curiam); In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019) (per curiam).

30 Under Subsection (E), DFPS had to prove that Father engaged in conduct or

knowingly placed Amanda with persons who engaged in conduct that endangered her

physical or emotional well-being. See id. § 161.001(b)(1)(E).

The supreme court has “held that ‘endanger’ means more than a threat of

metaphysical injury or potential ill effects of a less-than-ideal family environment, but

that endangering conduct need not be directed at the child.” E.N.C., 384 S.W.3d at

803 (quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). The

party seeking termination “bears the burden of showing how [an] offense was part of

a voluntary course of conduct endangering [a child’s] well-being.” Id. at 804. “[T]he

mere threat of . . . incarceration resulting from an unlawful act, regardless of severity,

[does not] establish endangerment.” Id. at 805. There must be evidence that the

parent’s “actions created such uncertainty and instability for his children sufficient to

establish endangerment.” Id. However, a factfinder may infer from past conduct

endangering a child’s well-being that similar conduct will recur if the child is returned

to the parent. In re M.M., No. 02-08-00029-CV, 2008 WL 5195353, at *6 (Tex.

App.—Fort Worth Dec. 11, 2008, no pet.) (mem. op.). Drug use and its effect on a

parent’s life and ability to parent may also establish an endangering course of conduct.

Id. And while imprisonment alone does not constitute a continuing course of conduct

that endangers a child’s physical or emotional well-being, it is a fact properly

considered on the issue of endangerment. Id.

31 Amanda was almost hit with a bullet when a police officer or bounty hunter

shot at Father while attempting to apprehend him, and Father then led his pursuers

on a high-speed chase with the child in the car.20 According to Mother, Father then

smoked methamphetamine in the vehicle while Mother drove him to Oklahoma to

evade detention. Father’s arrest (and subsequent conviction and incarceration) and

Amanda’s testing positive for methamphetamine immediately thereafter supported

Mother’s testimony about his drug use and criminal activity and showed that he had

engaged in conduct that endangered Amanda’s physical and emotional well-being. See

Tex. Fam. Code Ann. § 161.001(b)(1)(E); In re J.F.-G., No. 20-0378, 2021 WL

2021138, at *5–9 (Tex. May 21, 2021).

Amanda tested positive for methamphetamine when she was born, and in his

letter that was admitted into evidence, Father showed that he knew about Mother’s

drug use and the tricks she used to pass drug tests. But prior to his incarceration he

had nonetheless allowed Mother to care for Amanda, demonstrating that he had

knowingly placed or knowingly allowed Amanda to remain in conditions or

Father sets out the following description in his brief: 20

[T]he man at the front of the car fired point blank through the car windshield, hitting [Father] in the chest and missing the child by the slightest margin. [Father] hit the gas with a white truck chasing after them, in a high speed chase through Fort Worth, flying through red lights, sliding around corners with [Amanda] still in her car seat.

See Tex. R. App. P. 38.1(g) (stating that in a civil case, the court will accept as true the facts stated unless another party contradicts them).

32 surroundings that endangered her physical or emotional well-being. See Tex. Fam.

Code Ann. § 161.001(b)(1)(D). Father’s sister testified that she had seen Father only

three or four times over the course of several years because he lived a lifestyle of

criminal activity and drug use. And she opted not to be Amanda’s long-term

placement because of concerns for her own safety when Father was released from

prison.

Accordingly, we conclude that, under the applicable standards of review set out

above, the evidence is legally and factually sufficient to support the termination of

Father’s parental rights because the trial court could have reasonably concluded on

this record under either ground that Father had endangered Amanda’s physical and

emotional well-being sufficient to terminate his parental rights to her. We overrule

Father’s first and second points, and because either of these grounds is sufficient to

support the trial court’s judgment, we do not reach Father’s third point. See Tex. R.

App. P. 47.1; see also In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (stating that along

with the best-interest finding, a finding of only one ground alleged under Section

161.001(b)(1) is sufficient to support termination).

C. Best Interest

Although we generally presume that keeping a child with a parent is in the

child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam), the best-

interest analysis is child-centered, focusing on the child’s well-being, safety, and

development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In determining whether

33 evidence is sufficient to support a best-interest finding, we review the entire record.

In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Evidence probative of a child’s best

interest may be the same evidence that is probative of a Subsection (b)(1) ground. Id.

at 249; C.H., 89 S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also

consider the evidence in light of nonexclusive factors that the factfinder may apply in

determining the child’s best interest:

(A) the [child’s] desires . . . ;

(B) the [child’s] emotional and physical needs[,] . . . now and in the future;

(C) the emotional and physical danger to the child now and in the future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the [child’s] best interest . . . ;

(F) the plans for the child by these individuals or[, if applicable,] by the agency seeking custody;

(G) the stability of the home or proposed placement;

(H) the [parent’s] acts or omissions . . . indicat[ing] that the existing parent–child relationship is not a proper one; and

(I) any excuse for the [parent’s] acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see E.C.R.,

402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we consider,

among other evidence, the Holley factors” (footnote omitted)); E.N.C., 384 S.W.3d at

807. These factors are not exhaustive, and some listed factors may not apply to some

34 cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor

may be sufficient to support a finding that termination is in the child’s best interest.

Id. On the other hand, the presence of scant evidence relevant to each factor will not

support such a finding. Id.

Amanda, the fifth of Mother’s six children, tested positive for

methamphetamine at birth in 2017 and tested positive for methamphetamine again

when she was removed from Mother in 2019 after Father was shot. At the time of

the termination trial in 2021, she was three years old; accordingly, she did not testify

during the trial, but her caseworker testified that Amanda was happy and healthy in

the foster-to-adopt home with her baby sister Lara, who had also been removed from

Mother. The caseworker also testified that Amanda needed permanency.

Mother had been addicted to methamphetamine for over 20 years despite

undergoing numerous inpatient and outpatient courses of treatment, and the record

reflected her continued exercise of bad judgment over time—her husband had

introduced her to methamphetamine, and then she took up with Father, another

methamphetamine user and a criminal, in a relationship that she described as

involving “[a] lot of domestic violence.” After Father was incarcerated, she took up

with Bert, who also had a history of methamphetamine use, who had been on

probation for methamphetamine possession when they met, and with whom she had

used methamphetamine during the instant case. Mother acknowledged that her

relationship with Father had been an “[e]xtremely bad choice,” that driving Father to

35 Oklahoma instead of taking Amanda and leaving when they stopped at a gas station at

the end of the high speed pursuit had been “the wrong” choice, and that asking Bert

to join her in the park with Amanda on her first and only unsupervised visit was “an

extremely bad choice.”

The surveillance videos taken between September 30, 2020, and October 4,

2020, showed Bert’s continuous presence at Mother’s home in violation of the trial

court’s orders, but Mother testified that she did not think it was a bad choice to

remain in a relationship with him even though it jeopardized Amanda and Lara’s

return to her. Mother maintained that every day she made plenty of good choices too

and that she tried “to do the very best for [her]self and for [her] children.” In his

letter to their caseworker, Father expressed his concern that Mother would not stay

sober if Bert was around, and he asserted that Mother had been treating her hair and

urine to pass drug tests.21 Bert denied Mother had done such things, but the trial

court was tasked with judging the credibility of Mother and Bert during their

testimonies.

None of Mother’s children lived with her, and in addition to Amanda’s testing

positive for methamphetamine at birth, two of her older siblings had also tested

positive. The caseworker observed that Mother had a long pattern of

methamphetamine use and child neglect.

The trial court had ordered Mother not to alter her hair between the time of a 21

drug test request and completion of the drug test.

36 Mother’s idea of protecting Amanda from her drug use had been to make sure

that the child was in a separate room when she and Father used drugs. Mother had a

home and a job with which to support Amanda, and she had “completed service plan

after service plan,” but the trial court could have found that completing the plan was

not the same as learning from the plan and breaking a lifetime’s worth of habits.

Even though Mother was bonded with Amanda and drove 400 miles round-

trip for every visit, the trial court could have found that termination of Mother’s

parental rights was in Amanda’s best interest because of the danger to Amanda’s

emotional and physical needs from a parent who continuously exercised flawed

judgment in prioritizing her personal-relationship and lifestyle choices over her child’s

well-being. The trial court likewise could have found that the foster parents—who

were taking care of both Amanda and Mother’s new baby Lara—had better parental

abilities than Mother, and that it was in Amanda’s best interest to be adopted by them.

Based on our review of the entire record, and giving due deference to the trial

court’s findings, we hold that the trial court reasonably could have formed a firm

conviction or belief that termination of Mother’s parental rights to Amanda was in

Amanda’s best interest. See C.H., 89 S.W.3d at 18–19. We overrule Mother’s sole

issue.

37 IV. Conclusion

Having overruled all of Mother’s and Father’s dispositive issues, we delete the

Subsection (R) finding as to Mother from the trial court’s judgment and affirm the

trial court’s judgment as modified.

/s/ Bonnie Sudderth Bonnie Sudderth Chief Justice

Delivered: July 29, 2021