In the Interest of C.C. AKA C.C., Child v. Department of Family and Protective Services
This text of In the Interest of C.C. AKA C.C., Child v. Department of Family and Protective Services (In the Interest of C.C. AKA C.C., Child v. Department of Family and Protective Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Opinion issued April 11, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00765-CV ——————————— IN THE INTEREST OF C.C. AKA C.C., A CHILD
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2022-00988J
MEMORANDUM OPINION
Mother and Father appeal the trial court’s order terminating their parental
rights to their child C.C. For her part, Mother contends the evidence was legally and
factually insufficient to show that she knowingly placed or allowed C.C. to remain
in conditions that endangered C.C.’s physical or emotional well-being; she failed to
comply with a court order establishing the actions necessary for C.C.’s return; and termination of her parental rights was in C.C.’s best interest. 1 For his part, Father
contends the evidence was legally and factually insufficient to show that he engaged,
or knowingly placed C.C. with someone who engaged, in conduct that endangered
C.C.’s physical or emotional well-being; he failed to comply with a court order
establishing the actions necessary for C.C.’s return; and termination of his parental
rights was in C.C.’s best interest.2
We affirm.
Background
C.C. was born in May 2022. Over a two-day period in June 2022, the Texas
Department of Family and Protective Services received several referrals against
Mother for neglectful supervision of C.C. The first referral followed a fight between
Mother and Father that became violent. Law enforcement visited the family’s home
and saw cuts on Father’s eyelid and upper brow. Mother allegedly had thrown
objects, including pots and bowls, at Father.
Another referral alleged that Mother experienced a “mental health episode,”
set her apartment on fire with C.C. inside, carried C.C. to a nearby park with a bayou,
and threw C.C. to the ground. The Department’s referral affidavit stated that
1 See TEX. FAM. CODE § 161.001(b)(1)(D), (O), (b)(2). 2 Id. § 161.001(b)(1)(E), (O), (b)(2).
2 neighbors had helped save C.C., who suffered smoke inhalation. A medical
examination of C.C. at a hospital revealed a subarachnoid hemorrhage.3
At the hospital, the Department’s investigator, C. Cobb, noticed red marks on
C.C.’s forehead. Cobb interviewed Father with the assistance of an interpreter.4
Father said that he had not been involved with the Department before, did not have
any criminal history, and was the only person who could care for C.C. But he did
not have a support system. Father said that he was originally from China but had
lived in the United States for 15 years, including in Minnesota, California, and
Texas. He initially claimed to be single but later admitted to being in a relationship
with Mother, who hit him. Describing one incident that became violent, Father
recalled that Mother hit him because she believed he was in contact with an
ex-girlfriend. According to Father, he did not retaliate and instead went to a friend’s
place. When he left, C.C. was in the room sleeping and was in Mother’s care. Later,
he learned about the fire from a friend and about C.C.’s hospitalization from law
enforcement.
Father claimed that Mother had a mental illness, though he did not know her
specific diagnosis. Cobb spoke with a social worker at HCA West Houston Medical
3 Other parts of the referral affidavit describe C.C.’s head injury as a “subarachnoid hematoma” with no skull fracture, rather than as a hemorrhage. 4 Father is Chinese, and Mother is Taiwanese. Both used the services of an interpreter to communicate with the Department at times.
3 Center, who stated that Mother was admitted to the hospital and would be seen by a
psychiatrist. The social worker explained that Mother would remain at the hospital
until she could be transferred to another facility or was cleared to go home. Mother
told the social worker that she had a procurer who forced her into prostitution and
abused her. Mother also reported having over $15,000 in cash on her.
During her interview with Cobb, Mother admitted that C.C. hit her head and
inhaled smoke from the fire. She also admitted that she and Father argued, but she
denied drinking, using drugs, or having any mental illness. As for the apartment fire,
Mother’s story was inconsistent. Mother stated that she arrived at the apartment to
drop off Father’s clothes and that she had left C.C. in a small garden at the park by
herself. But Mother also said that C.C. had inhaled smoke, she took C.C. to the bayou
to get some water to drink, she wanted to give C.C. to police, and law enforcement
were not gentle with C.C. when they arrived on the scene of the fire.
Mother also told Cobb that Father was in the business of selling girls for
money and had offered to sell C.C. Mother said Father had given her $17,000 in
cash, Chanel bags and shoes, and $8,000 worth of jewelry. Both parents gave
inconsistent accounts of how they earned the money for these things, but Mother
claimed that she could earn up to $5,000 in a day by selling her body. But she did
not want to do that sort of work; instead, she wanted to be a beautician. Asked if she
had family or other friends in Houston, Mother answered that she had a friend, but
4 that person also was involved with human trafficking. Mother said that she could
afford to live separately from Father, she did not want to see Father again, and she
did not want him to know where she would be living.
Cobb also spoke with a detective about the fire at Mother’s and Father’s home.
The detective told Cobb that Father was at the scene of the apartment fire and that
hundreds of condoms and baby items were found on a burned mattress box spring in
the bedroom. There were questions whether Father told the truth about his address
and employment. Although he represented to the Department that he lived in an
apartment belonging to a friend, the apartment was in Father’s name. The detective
also doubted that Father was a waiter, as Father claimed, because Father drove a
Porsche with California license plates and wore expensive designer shoes. The
address listed as the home for C.C. on her birth certificate was a known gambling
house and brothel where women were being trafficked.
A social worker at the hospital where C.C. was born told Cobb that Mother’s
mental health was not a concern when she was released after C.C.’s birth. But the
social worker later worried that Mother showed signs of postpartum psychosis when
Father visited the hospital and told a physician that Mother was violent, broke a
neighbor’s window, and refused to seek help.
Based on its investigation, the Department petitioned to terminate Mother’s
and Father’s parental rights and obtained temporary managing conservatorship of
5 C.C. pending the final hearing. The Department’s primary permanency goal was
unrelated adoption, or in the alternative, unrelated conservatorship.
Both parents’ family service plans were filed with and approved by the trial
court. For her part, Mother needed to find employment; find safe, stable, and sanitary
housing; complete parenting classes; maintain communication with the caseworker;
notify the caseworker within 24 hours of a relocation; provide identifying
information of home occupants within 48 hours of that person moving in; submit to
a psychological evaluation and follow all recommendations; and complete domestic
violence classes.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued April 11, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00765-CV ——————————— IN THE INTEREST OF C.C. AKA C.C., A CHILD
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2022-00988J
MEMORANDUM OPINION
Mother and Father appeal the trial court’s order terminating their parental
rights to their child C.C. For her part, Mother contends the evidence was legally and
factually insufficient to show that she knowingly placed or allowed C.C. to remain
in conditions that endangered C.C.’s physical or emotional well-being; she failed to
comply with a court order establishing the actions necessary for C.C.’s return; and termination of her parental rights was in C.C.’s best interest. 1 For his part, Father
contends the evidence was legally and factually insufficient to show that he engaged,
or knowingly placed C.C. with someone who engaged, in conduct that endangered
C.C.’s physical or emotional well-being; he failed to comply with a court order
establishing the actions necessary for C.C.’s return; and termination of his parental
rights was in C.C.’s best interest.2
We affirm.
Background
C.C. was born in May 2022. Over a two-day period in June 2022, the Texas
Department of Family and Protective Services received several referrals against
Mother for neglectful supervision of C.C. The first referral followed a fight between
Mother and Father that became violent. Law enforcement visited the family’s home
and saw cuts on Father’s eyelid and upper brow. Mother allegedly had thrown
objects, including pots and bowls, at Father.
Another referral alleged that Mother experienced a “mental health episode,”
set her apartment on fire with C.C. inside, carried C.C. to a nearby park with a bayou,
and threw C.C. to the ground. The Department’s referral affidavit stated that
1 See TEX. FAM. CODE § 161.001(b)(1)(D), (O), (b)(2). 2 Id. § 161.001(b)(1)(E), (O), (b)(2).
2 neighbors had helped save C.C., who suffered smoke inhalation. A medical
examination of C.C. at a hospital revealed a subarachnoid hemorrhage.3
At the hospital, the Department’s investigator, C. Cobb, noticed red marks on
C.C.’s forehead. Cobb interviewed Father with the assistance of an interpreter.4
Father said that he had not been involved with the Department before, did not have
any criminal history, and was the only person who could care for C.C. But he did
not have a support system. Father said that he was originally from China but had
lived in the United States for 15 years, including in Minnesota, California, and
Texas. He initially claimed to be single but later admitted to being in a relationship
with Mother, who hit him. Describing one incident that became violent, Father
recalled that Mother hit him because she believed he was in contact with an
ex-girlfriend. According to Father, he did not retaliate and instead went to a friend’s
place. When he left, C.C. was in the room sleeping and was in Mother’s care. Later,
he learned about the fire from a friend and about C.C.’s hospitalization from law
enforcement.
Father claimed that Mother had a mental illness, though he did not know her
specific diagnosis. Cobb spoke with a social worker at HCA West Houston Medical
3 Other parts of the referral affidavit describe C.C.’s head injury as a “subarachnoid hematoma” with no skull fracture, rather than as a hemorrhage. 4 Father is Chinese, and Mother is Taiwanese. Both used the services of an interpreter to communicate with the Department at times.
3 Center, who stated that Mother was admitted to the hospital and would be seen by a
psychiatrist. The social worker explained that Mother would remain at the hospital
until she could be transferred to another facility or was cleared to go home. Mother
told the social worker that she had a procurer who forced her into prostitution and
abused her. Mother also reported having over $15,000 in cash on her.
During her interview with Cobb, Mother admitted that C.C. hit her head and
inhaled smoke from the fire. She also admitted that she and Father argued, but she
denied drinking, using drugs, or having any mental illness. As for the apartment fire,
Mother’s story was inconsistent. Mother stated that she arrived at the apartment to
drop off Father’s clothes and that she had left C.C. in a small garden at the park by
herself. But Mother also said that C.C. had inhaled smoke, she took C.C. to the bayou
to get some water to drink, she wanted to give C.C. to police, and law enforcement
were not gentle with C.C. when they arrived on the scene of the fire.
Mother also told Cobb that Father was in the business of selling girls for
money and had offered to sell C.C. Mother said Father had given her $17,000 in
cash, Chanel bags and shoes, and $8,000 worth of jewelry. Both parents gave
inconsistent accounts of how they earned the money for these things, but Mother
claimed that she could earn up to $5,000 in a day by selling her body. But she did
not want to do that sort of work; instead, she wanted to be a beautician. Asked if she
had family or other friends in Houston, Mother answered that she had a friend, but
4 that person also was involved with human trafficking. Mother said that she could
afford to live separately from Father, she did not want to see Father again, and she
did not want him to know where she would be living.
Cobb also spoke with a detective about the fire at Mother’s and Father’s home.
The detective told Cobb that Father was at the scene of the apartment fire and that
hundreds of condoms and baby items were found on a burned mattress box spring in
the bedroom. There were questions whether Father told the truth about his address
and employment. Although he represented to the Department that he lived in an
apartment belonging to a friend, the apartment was in Father’s name. The detective
also doubted that Father was a waiter, as Father claimed, because Father drove a
Porsche with California license plates and wore expensive designer shoes. The
address listed as the home for C.C. on her birth certificate was a known gambling
house and brothel where women were being trafficked.
A social worker at the hospital where C.C. was born told Cobb that Mother’s
mental health was not a concern when she was released after C.C.’s birth. But the
social worker later worried that Mother showed signs of postpartum psychosis when
Father visited the hospital and told a physician that Mother was violent, broke a
neighbor’s window, and refused to seek help.
Based on its investigation, the Department petitioned to terminate Mother’s
and Father’s parental rights and obtained temporary managing conservatorship of
5 C.C. pending the final hearing. The Department’s primary permanency goal was
unrelated adoption, or in the alternative, unrelated conservatorship.
Both parents’ family service plans were filed with and approved by the trial
court. For her part, Mother needed to find employment; find safe, stable, and sanitary
housing; complete parenting classes; maintain communication with the caseworker;
notify the caseworker within 24 hours of a relocation; provide identifying
information of home occupants within 48 hours of that person moving in; submit to
a psychological evaluation and follow all recommendations; and complete domestic
violence classes. And for his part, Father needed to find employment; find safe and
stable housing; notify the caseworker within 24 hours of a relocation; provide
identifying information of home occupants within 48 hours of that person moving
in; complete parenting classes; maintain communication with the caseworker; attend
all visits, court hearings, meetings, conferences, and notify the caseworker of late or
missed visits, hearings, meetings, or conferences 24 hours in advance; establish
paternity; submit to a psychosocial assessment and follow all recommendations; and
not engage in criminal activity.
In a permanency progress report, the Department noted that C.C. had
remained in the same foster home since her removal. Among other things, the report
described C.C.’s developing personality, progress in physical therapy, and
achievement of developmental milestones.
6 The report also discussed Mother’s progress with her family service plan. The
report stated that Mother submitted to a psychosocial assessment in January 2023. It
recommended that Mother do “individual counseling, parenting classes, work on
accountability, increasing insight and judgement [sic], [and] increase culture
awareness.” Mother also submitted to a psychological evaluation. According to the
report, Mother “chose not to disclose certain facts of her psychosocial history during
the clinical interview” and “appeared to have the presence of a mental health
condition that she did not want to acknowledge.” The report noted that Mother’s
“untreated mental health symptoms” may impact her ability to “effectively care” for
and “remain protective” of C.C. Additionally, it expressed concern for whether
Mother had “the emotional and financial skills to independently care for [C.C.]” or
required “the help of more responsible parties.”
Mother was diagnosed with unspecified depressive disorder with “possible
psychotic features” and was recommended to take parenting classes; participate in
individual therapy; show mood and behavior stability; increase her parenting
knowledge; and provide a safe and protective home environment for C.C.
After completing parenting classes and individual counseling, Mother was
referred to domestic violence classes. But Mother was not compliant with her service
plan requirement to obtain safe housing. The report notes that she resided with
7 Father, neither of whom provided a lease agreement or any housing verification to
the Department. Mother also did not provide any proof of income.
The report also addressed Father’s family-service-plan progress. It stated that
Father completed his psychosocial assessment in November 2022. The
recommendations were for Father to do individual counseling and parenting classes.
The report noted that Father claimed he had never been arrested or incarcerated, was
minimally cooperative during the session, and seemed to withhold information from
the therapist about the nature of the Department’s case. Although he completed the
parenting classes and individual counseling, Father’s FBI background check showed
15 criminal charges from 2007 through 2021. Father was also ordered to provide
proof of income through employment paystubs or a letter. The report noted that
Father provided three paycheck stubs, but no one was able to confirm Father’s
employment with the employer.
Father was also not compliant with his family service plan’s requirement to
obtain stable housing. He had moved three times during the case. And when the
caseworker, T. McCray, and child advocate, S. Bieniawski, conducted a joint home
visit at his third residence, Father did not provide a lease agreement or any other
form of documentation.
The record also contains the child advocate’s report noting C.C.’s various
medical conditions and needs. At two months, C.C. exhibited poor trunk and neck
8 control and a 50% delay in gross motor skills. Her head was not in midline, her left
eye turned slightly inward, and she walked with her left foot turned inward. She
attended weekly physical therapy and, with the help of her foster parents and daycare
providers, did additional “stretches and exercises” outside of physical therapy.
Additionally, to monitor potential developmental concerns, C.C. would need to see
a neurologist until for at least another year and a half.
The child advocate recommended that Mother’s parental rights be terminated
because C.C. would be at a high risk of emotional and physical harm. Mother
pleaded guilty to child endangerment for setting the home on fire, taking C.C. into
the burning apartment, and throwing her over a fence, for which Mother received
deferred adjudication in March 2023.
The child advocate also recommended that Father’s parental rights be
terminated because Father had not prioritized C.C.’s return over allowing Mother to
move back in with him, despite knowing that Mother is not allowed to have contact
with C.C. or any other minor. Father also bonded Mother out of jail by borrowing
$20,000 from a friend.
Father’s criminal record was extensive, including 13 felony convictions in
Utah for identity theft and additional charges for identity theft in Minnesota. This
included:
9 • illegal entry of alien at improper time or place and concealment of facts in January 2007;
• felony possession of a forged writing or device in June 2010;
• four misdemeanor theft counts in July 2010;
• several felony and misdemeanor charges for fraud, theft, or other financial crimes in November 2013;
• felony identity theft in March 2017;
• driving without a valid driver’s license, a misdemeanor, in January 2020; and
• a misdemeanor charge arising from unlawful window tinting on a vehicle in January 2021.
At trial, caseworker McCray testified. He testified that C.C. was almost 15
months old and had been in the same foster home since her removal in June 2022.
McCray explained that C.C. was removed because of Mother’s attempt to “dispose
of her” after setting the home on fire, which resulted in C.C.’s various injuries.
McCray explained that after the Department obtained temporary managing
conservatorship of C.C., Mother was ordered to complete a family service plan. As
part of her plan, Mother was required to provide proof of stable housing, proof of
employment with three paycheck stubs, and submit to psychosocial and
psychological assessments. But Mother did not provide proof of employment. She
also did not provide proof of her own housing and instead lived with Father after
being released from jail. Although she completed parenting classes and the
10 psychosocial and psychological assessment, she was not truthful during the
assessment and did not complete the recommendations from the assessment.
Mother also did not complete the recommendations from her domestic
violence classes. McCray testified that Mother called him in June, frantic after Father
struck her in the head several times. Mother also texted him about a separate incident
in which Father pulled a knife on her.
As for Father’s service plan, McCray explained that the Department had
several concerns about Father’s housing. One issue was that Father’s brother lived
in the home, but Father did not want to provide any information to the Department
about his brother. Another issue was that the lease Father provided did not contain
any verifiable information and did not look like any lease agreement McCray had
seen before. Finally, Father had moved three times during the case, and each
residence had cleanliness issues.
McCray also testified that Father was unemployed. And the Department could
not verify his previous employment at the Charming Cafe. When Father was visited
at work, his employer could not “identify [Father’s] timesheet” or say when he
comes to work, and there were conflicting reports about his job description and
details. In other words, nobody “could confirm that he, in fact, worked there.” And
later, Father stated that he did not work there.
11 On Father’s other family service plan requirements, McCray testified that the
therapist who performed Father’s psychosocial assessment did not believe Father
was truthful, specifically concerning his criminal history. Father also did not attend
all visitations with C.C., including in her birth month.
Mother’s friend, N. Le, also testified. Le said that she was part of Mother’s
support system and wanted C.C. to be placed with her. But she admitted that she
never reached out to McCray to be considered as a placement. Le had known Mother
for about three months, after meeting Mother at a restaurant. After knowing Mother
for one or two weeks, Le allowed Mother to move in with her. But Mother had since
returned to live with Father despite Mother claiming that Father slapped her. Le also
testified that Mother was pregnant again.
Child advocate, S. Bieniawski, testified about C.C.’s bond with her foster
parents. She said:
They are bonded like any other parent and child. They have a wonderful relationship. She seems to be really happy and engaged. They obviously love her deeply. They are on top of everything, medical and dental, and it’s very important to her that she has a lot of experiences, a lot of cultural experiences. She has all kinds of toys. She’s got books in Mandarin, a Chinese baby doll. Both [C.C.] and her parents are devoted and delighted with each other.
Bieniawski recommended termination of Mother’s and Father’s rights to C.C.
Bieniawski worried that Mother continued to return to Father, whom Mother claimed
abused her, and had no plans for supporting C.C. Additionally, Bieniawski was
12 concerned that Father had lived in three different homes in one year and that
someone whom Father identified as his brother lived in one of the residences without
notifying the Department as required. Bieniawski tried to verify Father’s
employment by visiting the Charming Cafe twice, but the manager she spoke with
had never heard of Father. Beside the two paycheck stubs she saw, there was no
other verification that Father worked at the Charming Cafe.
Father told Bieniawski that he borrowed $20,000 from a friend to bond
Mother out of jail, but Bieniawski had not independently verified that claim. When
she visited Father’s home, she saw Tiffany jewelry and a designer handbag. She also
noted that Father drove a Porsche. She asked Father whether he had any other income
source because those items did not seem affordable on his pay as a restaurant worker.
Bieniawski worried that Father was engaging in illegal activity.
In his testimony, Father admitted that Mother stayed with him for one or two
months after he bonded her out of jail. But she no longer lived with him, and he did
not know where she currently resided. Father denied hitting Mother, alleging instead
that she hit him. He also claimed that the Porsche Bieniawski saw did not belong to
him and was borrowed from a friend. And although he acknowledged the Tiffany
jewelry, he denied that the cash Mother had at the hospital belonged to him. As for
his criminal history, Father said, “I did have a criminal record; however, the offense
was not occurring in Texas.” Asked how many times he had been arrested, Father
13 replied, “Once, twice. I think three times. Yes, three times.” Asked why he denied
ever being arrested or incarcerated in the psychosocial assessment, Father admitted
that he “didn’t really want to tell them whether [he had] a criminal record or not.”
Father claimed that the fire occurred not in his apartment, but an apartment
that belonged to a friend. When asked what he and Mother did for work in 2021 and
2022, Father denied knowing what Mother did and claimed that he did not work for
those two years because he had saved money. Father claimed that he worked at a
restaurant in Minnesota before moving to Texas.
Father was asked whether he transported Mother to the last parent-child visit
earlier that month, and he denied doing so. When the foster parents’ attorney asked
when he was last employed Father responded that it was about a month ago at
Friendship BBQ. As for plans for who would take care of C.C. if she were to be
returned to Father, he answered that he would take care of her, his aunt would help
take care of her, or she could be placed in daycare. When asked whether those plans
involving the aunt meant he would move to Las Vegas, where she is located, Father
answered, “it all depends.”
C.C.’s attorney ad litem asked Father if he believes that Mother lies all the
time. Father disagreed but said Mother had not told the truth when she alleged that
he was trafficking girls, selling her for prostitution, or trying to sell C.C. Father did
not believe that Mother committed arson or endangered C.C. Father’s employment
14 at Charming Cafe was discussed again. Father stated that he was a cook and worked
there from July 2022 through February or March 2023. He stated that he earned
about $4,000.00 per month but never learned the owner’s name. Father testified that
after working at Charming Cafe, he got a job at Friendship BBQ, earning $3,695 per
month.
Foster Mother testified that when C.C. arrived in her home, C.C. was
underweight, had a scar on her left ankle, and had a subdural hematoma. C.C. visits
Texas Children’s Hospital quarterly to protect against any long-term brain injury or
developmental issues. As for C.C.’s current health, Foster Mother stated that C.C. is
meeting developmental milestones but has some physical disabilities and requires
physical therapy three times per month. C.C. also completes at-home exercises to
help her meet the physical therapy goals. Foster Mother described C.C.’s other
medical appointments, including ENT visits for recurring ear infections and eye
doctor appoints for her left eye, which turned inward slightly and might be related
to the head trauma C.C. sustained.
Foster Mother also testified that she desired to adopt C.C. Asked about her
plans for C.C.’s adoption, she explained:
One of the main things we want to do is continue to incorporate her culture, so we’ve talked a lot about putting her in Mandarin classes. We would like to continue to offer her all the opportunities to explore and develop with travelling, swimming lessons and continued involvement with our community, with our family, with our friends, holidays, [and] building our own traditions. 15 Foster Mother stated they have family in the Houston area as well as across the
country, many of whom flew in for C.C.’s birthday party in May.
As for Father, Foster Mother testified that he had missed 29 percent of the
total scheduled visits with C.C. and 40 percent of the visits scheduled since trial
began. Father did not appear for C.C.’s birthday month visits. And after some visits
with Father, C.C. returned to the foster home with a soiled diaper.
After the State rested, Mother testified. She stated that she completed
individual counseling as well as the parenting classes, adding that she learned how
to be an appropriate parent. Mother stated she was working on her immigration status
so she can stay permanently and work in the United States. When asked whether she
understood all her conversations with the caseworker, Mother claimed that
“sometimes when we communicate through the phone, [she] couldn’t understand
some of his English.”
As for the allegations of domestic violence between the parents, Mother
refused to answer whether she told the caseworker she was leaving Father because
he assaulted her. When asked again, Mother explained that she told the caseworker
that they had “some altercation” but she “really didn’t say that [she] was hit by him.”
Mother also denied her previous allegations that Father had sex trafficked her and
that she was a sex worker. When asked why C.C. had a brain injury when she came
into the Department’s care Mother responded, “I don’t really know.” 16 Mother did not answer whether she was a permanent resident or had
permission to live in the United States. Mother was similarly unable to answer what
kind of visa she obtained to enter the United States. Mother testified that she lived
“close to Chinatown” at the time of trial, but she did not provide the address. She
also could not say how many adults live in the home with her. She also could not
provide the name of Father’s relative whom she wanted the Department to consider
for placement of C.C., saying that she only knew her as “auntie or aunt.” She did not
want to answer whether she was pregnant or receiving prenatal care.
Although she admitted pleading guilty to endangering a child, Mother denied
that she endangered C.C., explaining that she was misunderstood by the pedestrian
who called law enforcement because that person thought she planned to throw C.C.
into the water. Regarding her relationship with Father, Mother described it as good
despite there being a chance of argument. When asked whether she intends to get
back together with Father, Mother replied that her “first priority is for [her] personal
development and also [to make] a good future for [herself].” She denied ever
experiencing physical violence “to the point that someone beat each other [sic] or
caused bleeding or anything,” but acknowledged some fights “in terms of perhaps
oral altercations.”
When then asked about the altercation that led to her leaving Father, Mother
stated, “Well, the fighting or altercations versus whether I will leave him or not
17 because of that, I think these are two matters.” When asked whether she told Le that
she needed a place to stay because Father was beating her, Mother answered, “Well,
what I told her was that we had a fight before occasionally, but never a point that the
violence had been pursued to the point [of] bleeding or anything that is harmful.”
When asked again if she moved back in with Father after leaving Le, Mother
responded, “I was only staying in his place for maybe one or two days and that way
I can retrieve my belongings. Do you count that as I was returning to him?”
When asked whether Mother had postpartum depression after C.C. was born,
Mother responded, “Yes. Because I miss my family members a lot.” When asked
how she knew that she had that depression, Mother stated that it was because her
friends thought she behaved quite differently than before the baby was born. Mother
explained that she did not receive any treatment for her depression, saying that she
did not really know that this condition required medical treatment.
The trial court rendered a judgment terminating Mother’s and Father’s
parental rights and awarding the Department sole managing conservatorship of C.C.
The trial court found that:
• Mother knowingly placed or knowingly allowed C.C. to remain in conditions or surroundings which endangered C.C.’s physical or emotional well-being under Family Code subsection 161.001(b)(1)(D);
• Both Mother and Father failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain C.C.’s return under subsection 161.001(b)(1)(O); and
18 • Neither Mother nor Father raised a defense based on Family Code section 161.001(d) to the subsection (O) finding and, even if they had, they did not show by a preponderance of the evidence that they (1) were unable to comply with a specific provision of the court order and (2) made a good faith effort to comply with the order but was unable to through no fault of their own.
Both Mother and Father appealed.
Standard of Review
Parents have a “commanding” interest in the “accuracy and justice” of the
decision to terminate their parental rights. Santosky v. Kramer, 455 U.S. 745, 758–
59 (1982). We strictly scrutinize termination proceedings and strictly construe the
involuntary termination statutes in favor of the parent. In re J.G.S., 574 S.W.3d 101,
113 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (citing Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985)). But the rights of the natural parent “are not absolute”
because “protection of the child is paramount.” In re A.V., 113 S.W.3d 355, 361
(Tex. 2003) (quoting In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)).
A trial court may terminate parental rights on clear and convincing evidence
that (1) the parent committed a predicate act listed in Family Code section
161.001(b)(1); and (2) termination of parental rights is in the child’s best interest.
See TEX. FAM. CODE § 161.001(b); see In re N.G., 577 S.W.3d 230, 235 (Tex.
2019) (per curiam). Clear and convincing evidence is defined as “the measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or
19 conviction as to the truth of the allegations sought to be established.” TEX. FAM.
CODE § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
In a legal sufficiency review, we consider all the evidence in the light most
favorable to the findings, assume the factfinder resolved disputed facts in favor of
its finding if a reasonable factfinder could, and disregard evidence that a reasonable
factfinder could have disbelieved. In re J.F.C., 96 S.W.3d at 266. We must
determine if a reasonable factfinder could have formed a firm belief or conviction
that the finding was true. In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). But we may
not disregard undisputed facts that do not support the finding. Id. The factfinder is
the sole judge of the witnesses’ credibility and demeanor. Id.
In a factual sufficiency review, we weigh disputed evidence contrary to the
finding against all the evidence that favors the finding. In re A.C., 560 S.W.3d 624,
631 (Tex. 2018). We consider whether the disputed evidence is such that a
reasonable factfinder could not have resolved it in favor of the finding. Id. If,
considering the entire record, “the disputed evidence that a reasonable factfinder
could not have credited in favor of the finding is so significant that a factfinder could
not reasonably have formed a firm belief or conviction, then the evidence is factually
insufficient.” In re J.F.C., 96 S.W.3d at 266. But we must “still provide due
deference to the decisions of the factfinder, who, having full opportunity to observe
20 witness testimony first-hand, is the sole arbiter when assessing the credibility and
demeanor of witnesses.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).
A single predicate finding is enough to support a termination judgment when
there is also a finding that termination is in the child’s best interest. In re A.V., 113
S.W.3d at 362. Thus, if multiple predicate grounds are found by the trial court, we
may affirm on any one ground. See In re T.G.R.-M., 404 S.W.3d 7, 13 (Tex. App.—
Houston [1st Dist.] 2013, no pet.). But, even when another ground for termination is
sufficient, we must review challenged findings under subsections
161.001(b)(1)(D) and (E) because those findings may have significant collateral
consequences for the parent’s rights to another child. In re N.G., 577 S.W.3d at 234
(due process requires heightened standard of review for subsection (D) and
(E) findings because of potential collateral consequences to parent’s rights to
different child); see also TEX. FAM. CODE § 161.001(b)(1)(M) (allowing termination
of parent’s rights based on previous subsection (D) or (E) findings).
Predicate Findings
Both Mother and Father challenge the legal and factual sufficiency of the
predicate findings. Specifically, Mother challenges the trial court’s predicate
findings under subsections 161.001(b)(1)(D) and (O). See TEX. FAM. CODE
§ 161.001(b)(1)(D), (O). And Father challenges the trial court’s predicate findings
under subsections 161.001(b)(1)(E) and (O). See id. § 161.001(b)(1)(E), (O).
21 A. Subsection (D): endangering conditions as to Mother
Mother challenges the trial court’s finding under subsection
161.001(b)(1)(D) that she “knowingly placed or knowingly allowed [C.C.] to remain
in conditions or surroundings which endanger the physical or emotional well-being
of [C.C.].” Id. § 161.001(b)(1)(D).
To “endanger” means “to expose to loss or injury; to jeopardize.” In re J.W.,
645 S.W.3d at 748; see In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021). “Endanger”
means “more than a threat of metaphysical injury or the possible ill effects of a
less-than-ideal family environment,” but it does not require that conduct be directed
at the child or that the child suffer injury. In re J.W., 645 S.W.3d at 748 (quoting
Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)); see Jordan
v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston [1st Dist.] 2010, pet.
denied) (danger to child “may be inferred from parental misconduct” even if conduct
is not directed at child and child does not suffer injury). Endangerment may occur
through acts, omissions, or both. In re M.D.M., 579 S.W.3d 744, 765 (Tex. App.—
Houston [1st Dist.] 2019, no pet.).
While both subsections (D) and (E) focus on endangerment, they differ on the
source and proof of endangerment. In re A.S., 261 S.W.3d 76, 83 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied). Relevant to Mother, subsection
(D) “focuses on the child’s environment.” In re J.W., 645 S.W.3d at 749; In re
22 M.D.M., 579 S.W.3d at 764. “[I]nappropriate, abusive, or unlawful conduct by
persons who live in the child’s home or with whom the child is compelled to
associate on a regular basis in the home is a part of the ‘conditions or surroundings’
of the child’s home under [subsection (D)].” In re M.D.M., 579 S.W.3d at 764; see
In re J.W., 645 S.W.3d at 749 (“The suitability of a child’s living conditions and the
conduct of parents or others in the home are relevant to a Subsection (D) inquiry.”).
A child is endangered when the child’s environment “creates a potential for danger
that the parent is aware of but consciously disregards.” In re S.R., 452 S.W.3d 351,
360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Generally, the relevant
period for evaluating this ground is before the child’s removal. In re R.S.-T., 522
S.W.3d 92, 109 (Tex. App.—San Antonio 2017, no pet.); but see In re J.W., 645
S.W.3d at 749 & n.12 (refusing to “foreclose the possibility that Subsection
(D) could apply post-removal depending on the facts”). “[U]nder subsection (D),
termination may be based upon only a single act or omission.” In re M.D.M., 579
S.W.3d at 764.
In support of her contention that she did not knowingly place or knowingly
allow C.C. to remain in endangering conditions or surroundings, Mother relies on
our sibling court’s decision in In re V.A., 598 S.W.3d 317 (Tex. App.—Houston
[14th Dist.] 2020, pet. denied). There, the mother, who allegedly had epilepsy,
allowed a fire to break out, filling her apartment with smoke while her children were
23 inside and under her care. Id. at 322. Because no evidence addressed the mother’s
condition “at the time,” the court found the evidence was legally insufficient to
satisfy subsection (D). Id. at 330.
Although Mother asserts that this record is similarly silent on her postpartum
mindset, medical condition, and mental health status at the time C.C. entered the
Department’s care, we find V.A. distinguishable. Mother pleaded guilty to
“intentionally and knowingly engag[ing] in conduct that placed C.C. . . . in
imminent danger of bodily injury and death, . . . by taking [C.C.] . . . into a burning
building[.]” See In re L.D.C., 622 S.W.3d 63, 71 (Tex. App.—El Paso, Feb. 2020,
no pet.) (“Setting fire to a house in which [child] was sleeping is an act of arson,
standing alone, is enough to justify termination under either Subsection D or
Subsection E.”). There was also evidence that she and Father became physically
violent during arguments and argued in C.C.’s presence. And the home Mother lived
in with C.C. was known by law enforcement as a gambling house and brothel.
Mother continued to live with Father in the home despite claiming that Father was
in the business of “selling girls” and offered to sell C.C. See In re E.R.W., 528
S.W.3d 251, 264 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (endangerment
may occur when environment creates potential for danger that parent is aware of but
disregards); see also In re M.V., 343 S.W.3d 543, 547 (Tex. App.—Dallas 2011, no
24 pet.) (parent’s decision to continue living with someone who committed instances
of domestic violence may support endangerment finding under subsection (D)).
Viewing the evidence in the light most favorable to the subsection (D) finding,
we conclude that the trial court could reasonably form a firm belief or conviction
that Mother knowingly placed or knowingly allowed C.C. to remain in conditions or
surroundings which endangered her physical or emotional well-being. See TEX.
FAM. CODE § 161.001(b)(1)(D); see also In re J.W., 645 S.W.3d at 748–49; In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). And
considering the entire record, the disputed evidence that a reasonable factfinder
could not have credited in favor of the subsection (D) finding is not so significant
that a factfinder could not reasonably have formed a firm belief or conviction as to
the truth of its finding. See TEX. FAM. CODE § 161.001(b)(1)(D); see also In re
J.F.C., 96 S.W.3d at 266. The trial court’s predicate finding under subsection (D) is
thus legally and factually sufficient.
We overrule Mother’s subsection (D) issue.
B. Subsection (E): endangering conduct as to Father
Father challenges the trial court’s finding under subsection
161.001(b)(1)(E) that he “engaged in conduct or knowingly placed [C.C.] with
persons who engaged in conduct which endangers the physical or emotional
well-being of [C.C.]” TEX. FAM. CODE § 161.001(b)(1)(E).
25 Termination under subsection (E) “must be based on a voluntary, deliberate,
and conscious course of conduct” rather than a single act or omission. J.O. v. Tex.
Dep’t of Fam. & Protective Servs., 604 S.W.3d 182, 191 (Tex. App.—Austin 2020,
no pet.); In re M.D.M., 579 S.W.3d at 764. The conduct does not have to occur in
the child’s presence. In re M.D.M., 579 S.W.3d at 764; see In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009) (“endangering conduct is not limited to actions directed
towards the child” and “may include the parent’s actions before the child’s birth”).
We may consider how a parent treated another child or a spouse. In re M.D.M., 579
S.W.3d at 764. We may also consider the parent’s conduct both before and after the
Department removes the child from his care. In re S.R., 452 S.W.3d at 360.
“Conduct that subjects a child to life of uncertainty and instability endangers
the child’s physical and emotional well-being.” Jordan, 325 S.W.3d at 723. A
parent’s abusive and violent criminal conduct can create “an environment that
endangers a child’s well-being, and evidence that a person has engaged in such
conduct in the past permits an inference that the person will continue violent
behavior in the future.” In re N.J.H., 575 S.W.3d 822, 832 (Tex. App.—Houston
[1st Dist.] 2018, pet. denied).
Father argues that the subsection (E) finding relies on assertions that (1) he
was aware of Mother’s mental health issues but allowed C.C. to remain in Mother’s
care and (2) his criminal history was endangering. As to the first assertion, Father
26 argues that the Department’s neglect allegations are based only on what was in the
removal affidavit. Relying on the affidavit, Father argues that there was no evidence
that he ever harmed C.C. and most of the allegations involve Mother’s mental health.
As to the second assertion, Father argues that his criminal history predated C.C.’s
birth and does not show current criminal conduct.
Under subsection (E), the relevant inquiry is whether evidence shows that the
endangerment of the child’s physical well-being was the direct result of the parent’s
conduct, including acts, omissions, or failures to act. In re K.P., 498 S.W.3d 157,
171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The trial court heard
evidence of domestic violence before and after C.C.’s removal. The removal
affidavit states that when C.C. first came to the Department’s attention, Father had
injuries to an eyelid and upper brow because Mother had thrown pots and pans at
him. Despite Mother’s violence toward him, Father left C.C. with Mother. After he
left, Mother set the apartment on fire, carried C.C. into the burning apartment, then
took her to a park and threw her over a fence, which led to C.C.’s hospitalization for
head injuries. Father ultimately paid the bond to release Mother from jail and
continued to live with her after the domestic violence instances and despite Mother’s
bond or probation conditions that prevented her living with children. See In re M.V.,
343 S.W.3d at 547 (parent may endanger child by continuing to live with someone
who committed domestic violence).
27 There was also evidence that Father was physically violent himself. Mother
told McCray about instances when Father struck her in the head several times and
pulled a knife on her. Although Father denied these allegations, the trial court could
believe them. See Hatteberg v. Hatteberg, 933 S.W.2d 522, 530 (Tex. App.—
Houston [1st Dist.] 1994, no writ) (factfinder may reject any part of witness
testimony); In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.]
2009, no pet.).
A background check revealed that Father has been convicted of more than a
dozen criminal offenses in Utah, Minnesota, and Texas, which he was not
forthcoming about. And the Department expressed concern that Father was still
engaging in criminal activity based on his lifestyle. The Department presented
evidence that Father was not truthful about his living situation or how he earned
money. He possessed expensive items, he took C.C. home to a place known by law
enforcement as a gambling house and brothel, and he did not give the Department
sufficient information to verify his housing and income. See In re E.N.C., 384
S.W.3d 796, 805 (Tex. 2012) (“[D]eportation, like incarceration, is a factor that may
be considered (albeit an insufficient one in and of itself to establish endangerment),
its relevance to endangerment depends on the circumstances.”); In re V.V., 349
S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (“Intentional
28 criminal activity that exposes a parent to incarceration is conduct that endangers the
physical and emotional well-being of a child.”).
Viewing the evidence in the light most favorable to the judgment, we conclude
that it is legally sufficient to support the trial court’s finding under subsection
(E) that Father engaged in conduct or knowingly placed C.C. with persons who
engaged in conduct which endangered C.C.’s physical or emotional well-being. See
TEX. FAM. CODE § 161.001(b)(1)(E). And considering the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the
subsection (E) finding is not so significant that a factfinder could not reasonably
have formed a firm belief or conviction as to the truth of its finding. See id.
§ 161.001(b)(1)(E); see also In re H.R.M., 209 S.W.3d at 108. The evidence is thus
factually sufficient to support termination of Father’s rights under subsection (E).
We overrule Father’s subsection (E) issue.
C. Subsection (O): failure to comply with family service plan as to Mother and Father
Parental rights may also be terminated if the trial court finds by clear and
convincing evidence that the parent violated the provisions of a court order that
specified the conditions for the return of a child who has been in the temporary
managing conservatorship of the Department for at least nine months as a result of
the child’s removal from the parent under Family Code chapter 262 for the abuse or
neglect of the child. TEX. FAM. CODE § 161.001(b)(1)(O); In re R.J.G., 681 S.W.3d
29 370, 378 (Tex. 2023). However, the trial court may not order a subsection
(O) termination if the parent proves by a preponderance of the evidence that
(1) they could not comply with the provisions of the trial court’s order and (2) they
made a good-faith effort to comply, but the failure was not attributable to any fault
of the parents. TEX. FAM. CODE § 161.001(d). The Texas Supreme Court recently
clarified that “strict compliance with every detail of a service plan is not always
required to avoid termination under (O).” In re R.J.G., 681 S.W.3d at 379. Rather,
trial courts bear the ultimate “responsibility for determining whether that finding
supports termination.” Id.
1. Mother
As to subsection (O), Mother does not challenge the trial court’s findings that
C.C. was in the Department’s conservatorship for at least nine months and was
removed under Chapter 262 for abuse or neglect. Instead, Mother argues that
although she did not strictly or completely comply with her service plan, she
complied with the material requirement to complete individual counseling.
Mother relies on R.J.G., wherein the parent was ordered to and did complete
individual counseling, parenting classes, substance abuse counseling, stayed
drug-free, maintained a job, maintained a clean and stable home, and stayed in
contact with her caseworker. Id. at 373. The court of appeals affirmed the judgment
terminating the parent’s rights under subsection (O), but the Texas Supreme Court
30 reversed. The Court held that there was legally insufficient evidence because the
termination rested on evidence that the parent failed to meet a requirement not
expressly stated in the service plan. Id. at 383.
Although there are similarities between this case and R.J.G., it is more like
this Court’s recent decision in In re B.J.F. No. 01-23-00522-CV, 2024 WL 117174
(Tex. App.—Houston [1st Dist.] Jan. 11, 2024, pet. denied) (mem. op.). There, the
mother had to maintain safe and stable housing; maintain contact with the
Department; refrain from criminal activities, incurring additional criminal charges, and
abide by the terms of her case; complete the plan’s substance abuse requirements; and
participate in the case by attending court hearings, visitations with her child, and
all other required meetings. Id. at *18–20. The mother provided a one-year lease set
to begin two weeks before the trial date. Id. at *18. This Court held that the lease
reflected the mother’s intention to maintain safe and stable housing for at least
six months in the future but did not show, as the service plan required, that the
mother’s housing would be maintained throughout the case. Id. As for the
requirement to participate in the case by attending court hearings and parent-child
visits, the mother missed several hearings and did not visit with the child for the
first ten months of the CPS case. Id. This Court posited that the mother’s visits
with her young daughter fostered their familial relationship and were critical to the
mother’s reunification with the child. Id.
31 Here, Mother was required to maintain safe and stable housing; provide proof
of housing; update the caseworker within 24 hours of moving; update the caseworker
of other occupants within 48 hours; and attend all visits, court hearings, and
conferences. Mother was incarcerated for endangering C.C. until March 2023. The
permanency report notes that Mother did not provide the Department with proof of
stable housing or income. Mother also failed to provide the caseworker with updates
when she moved. Although Mother admitted to domestic violence between her and
Father, she stayed with him after her release from jail.
At trial, Le testified that she allowed Mother to reside with her after knowing
her for one or two weeks. But Mother then moved back in with Father, even though
Mother claimed that Father had previously assaulted her. The record thus shows that
Mother did not demonstrate that she had safe or stable housing as required by the
family service plan. See In re J.W., 645 S.W.3d at 742 (holding legally sufficient
evidence supported termination of parental rights under subsection (O) solely
because parent failed to maintain safe and stable home environment).
Because of Mother’s incarceration for most of the case, she missed multiple
court hearings. Her bond conditions also prohibited her from seeing C.C., and a
condition for her deferred adjudication was not to have contact with any child under
age 17 for five years. Mother also did not provide accurate information in her
32 psychosocial assessment as required by her family service plan. Finally, Mother
conceded that she did not complete domestic violence classes.
Even considering the Texas Supreme Court’s recent guidance on subsection
(O) findings, the record here provided legally and factually sufficient evidence that
Mother failed to comply with several material provisions of her service plan.
We overrule Mother’s subsection (O) issue.
2. Father
Father also does not challenge the trial court’s findings that C.C. was in the
Department’s conservatorship for at least nine months and was removed under
Chapter 262 for abuse or neglect. He disputes that he failed to comply with the
family service plan and whether the subsection (O) finding was improper under
section 161.001(d) of the Family Code. We disagree.
Father’s family service plan required that he: obtain employment; obtain safe
and stable housing; notify the caseworker within 24 hours of a relocation; provide
identifying information of home occupants within 48 hours of that person moving
in; complete parenting classes; maintain communication with the caseworker; attend
all visits, court hearings, meetings, conferences, and notify the caseworker of late or
missed visits, hearings, meetings, or conferences 24 hours in advance; establish
paternity; submit to a psychosocial assessment and follow all recommendations; and
33 The record shows that Father failed to obtain safe and stable housing as
required by the service plan. While Father allowed the Department to conduct
random home visits, McCray testified that the home was not appropriate for a child.
McCray informed Father several times of his concerns as he visited Father’s three
residences. McCray stated that “there was always trash . . . there’s bugs flying
around the entrance of the home and in the back.” Father also violated his service
plan by not giving the Department information about his brother who resided with
him. The copy of a lease Father provided did not provide the landlord’s contact
information, despite the Department’s request for it. The Department also expressed
concern that, even if the lease were valid, Father had moved three times in one year.
Next, Father did not maintain employment as required by his family service
plan. Father was unemployed at the time of trial. Throughout the pendency of the
case, the Department was unable to verify Father’s previous employment at the
Charming Cafe. Father testified that he was a cook at Charming Cafe for no more
than six months. But the record has only two paychecks provided by Father, both
from his alleged subsequent employer, Friendship BBQ, whose owner Father never
knew. The child advocate’s report noted that the Charming Cafe manager first
denied knowing Father before later reporting that he was a chef there. At trial, the
child advocate testified that she tried to verify Father’s employment by visiting the
restaurant twice. The manager she spoke with had never heard of Father.
34 Father was also required to complete a psychosocial assessment and submit
accurate information as part of that assessment. The psychosocial assessment noted
that Father was “irritable, wary, tense, inattentive,” “minimally communicative,”
“minimally cooperative,” and “seemingly with[held] information” during the
session. The therapist noted that, because Father “may not have been fully
forthcoming in answering the assessment questions,” the assessment results could
be inaccurate.
Father argues that any inconsistency in his assessment answers resulted from
English not being his first language and inadequate translation. Father told the
Department that he had been in the United States for 15 years, and his criminal
history showed that he picked up his first charge in the United States in January
2007. But the assessment noted that Father reported only having been in the United
States for 10 years.
At trial, when asked if he had testified at an earlier hearing that he did not
have any criminal charges other than traffic tickets, Father responded, “I did not say
that” then clarified that “I did have a criminal record; however, the offenses [did not
occur] in Texas.” Father failed to answer when his last probation ended and did not
know exactly how many times he had been arrested. When asked about whether he
spoke with the caseworker in English he responded, “Yes.” When asked by the trial
court about the apartment fire, Father replied, “It was not my apartment. It was my
35 friend’s apartment.” And finally, when asked about his answers in the psychosocial
assessment, Father admitted, “I didn’t really want to tell them whether I have a
criminal record or not.”
Father claims that he regularly visited C.C. throughout the case. But the record
reflects that he did not attend all visits. McCray testified that Father missed two visits
in September and October. He also clarified that although the permanency report
stated Father attended all visits in May, Father missed both May visits. Foster
Mother also testified that Father missed 29 percent of total visits throughout the case
and 40 percent of visits after trial commenced.
In short, Father struggled to maintain safe and stable housing; he failed to
provide the Department with verifiable information for his residence, other
occupants of his residence, and his employer; he was not truthful during his
assessments; and he failed to attend all visitations with C.C. The record thus shows
legally and factually sufficient evidence that Father failed to comply with several
material provisions of his family service plan. See TEX. FAM. CODE
§ 161.001(b)(1)(O).
Father also contends that section 161.001(d) should have precluded the trial
court from terminating his parental rights under subsection (O). Id.
§ 161.001(d) (providing defense when parent is unable to comply with court order
despite good faith attempt); see also In re Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019).
36 Father again asserts that he did not understand certain questions because he lacks
fluency in English and had inadequate translation. The Department responds that
because Father did not raise the section 161.001(d) affirmative defense during the
proceedings, it is waived. Assuming without deciding that there is no waiver, we
conclude that Father failed to meet his burden of proof.
As discussed above, the record contains Father’s family service plan, his
requirements under it, and the ways in which he failed to satisfy those requirements.
Some of those shortcomings included failing to provide the requisite number of
paycheck stubs to verify his employment, failing to provide information on other
occupants in his residence, and failing to provide verifiable proof that his residence
was in his name. The record does not show that any of those issues stem from
translation inconsistencies during his assessment or testimony. The trial court made
no findings in support of any of Father’s arguments as it relates to his affirmative
defense. See In re C.M., 996 S.W.2d 269, 270 (Tex. App.—Houston [1st Dist.] 1999,
no pet.). The only finding made by the trial court in this regard is that Father failed
to raise a defense based on Family Code section 161.001(d) to the finding under
subsection (O). Deferring to the trial court’s role as factfinder and judge of witness
credibility and the weight to be given to their testimony, we cannot say that the trial
court erred in concluding that Father failed to prove by a preponderance of the
37 evidence that his failure to comply with his family service plan was “not attributable
to any fault” of his own. See TEX. FAM. CODE § 161.001(d)(2).
We conclude that the evidence is legally and factually sufficient to support
the trial court’s finding that Father did not carry his burden of proof under section
161.001(d). Therefore, considering our analysis above, termination was proper
under subsection (O).
We overrule Mother’s and Father’s subsection (O) issues.
Best Interest Findings
Mother and Father also challenge the legal and factual sufficiency of the
evidence that terminating their parental rights was in C.C.’s best interest.
A. Best interest factors
A strong presumption exists that a child’s best interest is served by keeping
the child with her natural parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). But
a best-interest analysis is child-centered and focuses on the child’s well-being,
safety, and development. In re A.C., 560 S.W.3d at 631.
In determining whether evidence supports a best-interest finding, we review
the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). A parent’s past
conduct is probative of their future conduct. See Jordan, 325 S.W.3d at 724.
Evidence probative of a child’s best interest may be the same evidence probative of
38 a subsection (b)(1) ground. In re E.C.R., 402 S.W.3d at 249; see TEX. FAM. CODE
§ 161.001(b)(1), (2).
We also consider several factors that the factfinder may apply in determining
the child’s best interest, including: (1) the desires of the child; (2) the present and
future physical and emotional needs of the child; (3) the present and future emotional
and physical danger to the child; (4) the parental abilities of the persons seeking
custody; (5) the programs available to assist those persons seeking custody in
promoting the best interest of the child; (6) the plans for the child by the individuals
or agency seeking custody; (7) the stability of the home or proposed placement;
(8) acts or omissions of the parent which may indicate the existing parent-child
relationship is not appropriate; and (9) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see In re
E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and some may not
apply to all cases. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Undisputed evidence
of just one factor may be sufficient to support a finding that termination is in the
child’s best interest. Id.
Additionally, we may consider the factors set forth in Family Code section
263.307, including: (1) the child’s age and physical and mental vulnerabilities;
(2) whether there is a history of abusive or assaultive conduct by the child’s family
or others who have access to the child’s home; (3) the willingness and ability of the
39 child’s family to seek out, accept, and complete counseling services and to cooperate
with and facilitate an appropriate agency’s close supervision; (4) the willingness and
ability of the child’s family to effect positive environmental and personal changes
within a reasonable period; (5) whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and
nutritional care, a safe physical home environment, and an understanding of the
child’s needs and capabilities; and (6) whether an adequate social support system
consisting of an extended family and friends is available to the child. TEX. FAM.
CODE § 263.307(b); In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
B. Analysis
1. Child’s Desires and Plans for the Child
C.C., only one year old when trial began, was too young to express her desires.
When a child is too young to make her desires known, the trial court may consider
the bond between the child and her foster family, whether she has been well cared
for by them, and the time she has spent with her natural parents. In re A.H.L., No.
01-16-00784-CV, 2017 WL 1149222, at *5 (Tex. App.—Houston [1st Dist.] Mar.
28, 2017, pet. denied) (mem. op.).
The evidence showed that C.C.’s bond with her foster parents, who have cared
for her almost since birth and have provided for her medical and developmental
needs, was strong. McCray testified that C.C. had been in the same foster home since
40 June 2022. He witnessed C.C. in the home and described the foster family’s
relationship with C.C. as wonderful. Describing C.C.’s condition when she first
arrived in her home, Foster Mother observed that C.C. was underweight for her age
and had a scar on her left ankle and a subdural hematoma. As for C.C.’s current
health status, Foster Mother stated that C.C. was meeting her developmental
milestones but still had some physical disabilities. Foster Mother testified about
C.C.’s frequent medical appointments, noting that C.C. goes to see a neurologist
quarterly to ensure she does not have long-term brain or development issues. She
added that C.C. also has physical therapy three times per month and completes
additional at-home exercises to meet her physical therapy goals. Foster Mother
expressed her desire to adopt C.C. Additionally, C.C.’s foster family has provided
C.C. with books in Mandarin and a Chinese doll and plan to enroll her in Mandarin
classes. C.C. calls her foster parents “Mommy and Daddy.”
In contrast, the short time C.C. spent in Mother and Father’s care was fraught
and resulted in injuries to C.C. In the two weeks that C.C. lived with Mother and
Father, the Department received multiple referrals alleging neglect and abuse.
Domestic violence occurred between Mother and Father, and Mother set fire to their
home with C.C. inside before attempting to “dispose” of C.C. at the bayou nearby.
C.C. suffered a head injury.
41 Mother acknowledged C.C.’s bond with her foster parents and that she could
not strengthen her natural bond with C.C. through visitation because of her criminal
charge. Mother was incarcerated on charges of child endangerment until March
2023, two months before trial. While Mother’s friend and witness, Le, testified that
she could take C.C., she admitted that she had not contacted the Department before
her testimony to express any desire to do so.
Father also recognized that C.C. was doing well in her foster home, but he
claimed to have bonded with C.C. during visitation. At trial, however, McCray
testified that Father did not attend all his visits with C.C. And Foster Mother testified
that Father missed 29 percent of all visits with C.C. and 40 percent of visits after
trial started. Foster Mother also stated that when Father did visit, there were times
that he would not change C.C.’s diaper, and that C.C. did not receive any gifts from
her parents for her birthday.
Considering this evidence, the factfinder reasonably could conclude that these
factors weighed in favor of terminating Mother’s and Father’s parental rights.
2. Danger to the Child and Child’s Present and Future Needs
As discussed above, both parents engaged in conduct showing their inability
to provide C.C. a safe or stable environment. In re S.R.H., No. 01-15-00714-CV,
2016 WL 430462, at *10 (Tex. App.—Houston [1st Dist.] Feb. 4, 2016, no
pet.) (mem. op.) (evidence of endangerment may also support best interest finding).
42 The Department received its initial referral because of domestic violence
between the parents. Father had cuts to his eyelid and upper brow. He told law
enforcement that Mother threw objects at him but denied wanting to press charges.
A subsequent referral alleged that Mother set their apartment on fire while C.C. was
inside, attempting to “dispose” of C.C. near the bayou, and when C.C. was taken to
the hospital afterward, she had a head injury.
During the Department’s investigation, Mother stated that Father trafficked
women for money and the only other person in her support system was also involved
in human trafficking. Mother was charged with child endangerment and spent most
of C.C.’s life incarcerated before her release in March 2023. She later pleaded guilty
to child endangerment and received deferred adjudication. Mother’s bond conditions
prohibited her from having any contact with C.C., and one of the conditions of her
deferred adjudication prohibits contact with any child below the age of 17. In re
J.D.S., No. 01-10-00767-CV, 2011 WL 4398554, at *6 (Tex. App.—Houston [1st
Dist.] Sept. 22, 2011, no pet.) (mem. op.) (parent’s incarceration can negatively
impact child’s living environment and emotional well-being). Upon her release,
Mother lived with Father but left because he hit her. According to Le, Mother later
returned to live with Father again.
Mother conceded on appeal that she has mental health issues that may prevent
her from ever meeting C.C.’s needs. She also conceded that if Father remains in
43 Mother’s life, Mother will be unable to protect her child from present and future
physical and emotional danger. Father also acknowledged that Mother’s behavior
was concerning, but he argues that the Department failed to provide evidence that
he could not meet C.C.’s emotional and physical needs. He also asserts that he was
the one who initiated the case, thereby demonstrating his protectiveness when C.C.
faced emotional and physical danger. During the Department’s investigation,
Mother told the Department that Father sold girls for money and tried to sell C.C. In
the same interview, Mother claimed to have large sums of money with her at the
hospital. Law enforcement advised the Department’s investigator that the home C.C.
lived in was known for gambling and sex trafficking. Both parents also admitted that
domestic violence occurred between them.
Neither parent completed their family service plans. Mother did not complete
her domestic violence classes. The Department expressed concern about Mother and
Father’s living arrangement because of Mother’s bond and deferred adjudication
conditions. The Department was concerned that Father would not adequately protect
C.C., considering Mother’s child endangerment conviction. There was also evidence
that Father assaulted Mother after the termination proceedings began.
The parents’ failure to address the Department’s concerns by not completing
their family service plans supports the trial court’s conclusion that they could not
provide C.C. with a safe environment now or in the future. See Holley, 544 S.W.2d
44 at 371–72 (discussing factors two and three regarding danger to the child, and the
child’s emotional and physical needs).
3. Parental Abilities and Stability
“A parent’s inability to provide adequate care for [their] children, unstable
lifestyle, lack of a home and income, lack of parenting skills, and poor judgment
may be considered when looking at the children’s best interest.” In re J.D., 436
S.W.3d 105, 119 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The government
has a compelling interest in establishing a stable, permanent home for a child. See
In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Here, there was little evidence of Mother’s and Father’s parental abilities, and their
instability throughout the case concerned the Department. Mother was incarcerated
on the child endangerment charge until March 2023. After she was released, Mother
lived with Father until he assaulted her. She later returned to living with him.
Father moved into three different homes during the case, and at each
residence, the Department noted unsanitary conditions. Although the child advocate
later described Father’s residence as “appropriate,” Father violated the terms of his
family service plan by not reporting that someone else, his brother, lived with him.
Father did not give the Department any verifiable information about his brother.
Father also did not provide the Department with verifiable copies of his leases.
Father provided one lease as an exhibit at trial, but it lacked the landlord’s contact
45 information. Father’s employment was also unverified. At removal, Father asserted
that he could care for C.C. because he was unemployed. When he reported gaining
employment, Father failed to provide the Department with sufficiently verifiable
information and visits to Father’s work left the Department with doubts about his
employment because of inconsistencies in the information provided by Father and
his employer.
Father also was not truthful with the Department when he withheld
information about his criminal history because he “didn’t really want to tell” the
Department about it. Most of his criminal history involved crimes of fraud or
deception. During the termination proceedings, Father was seen driving an
expensive vehicle and the child advocate reported seeing luxury goods at his
residence, neither of which a restaurant cook could normally afford.
Mother also conceded that she is not ready to be a protective parent and that
the foster parents are strong candidates for adoption. As discussed, Foster Mother
described that she and her husband take C.C. to various medical appointments and
complete at-home exercises with C.C. to protect against long-term developmental
issues. They also expressed their desire to adopt C.C. and incorporate aspects of her
culture into her life.
Here, there was evidence showing that Mother and Father lacked the
necessary parental abilities and motivation to be proper parents for C.C., and that
46 foster parents were providing significant amounts of medical care for C.C. See
Holley, 544 S.W.2d at 371–72 (discussing factors four and eight regarding parenting
ability and acts or omissions indicating improper parent-child relationship). Heeding
these factors, along with the whole record, a factfinder could reasonably conclude
that terminating Mother’s and Father’s parental rights was in C.C.’s best interest.
See In re C.H., 89 S.W.3d at 28 (noting evidence about placement plans and adoption
are relevant to best interest but must be considered in context of entire record).
4. Available Programs and Parents’ Acts or Omissions
Mother contends that because of her natural bond to C.C., completion of
counseling and parenting classes, and willingness to participate in services upon
release from jail, there is insufficient evidence to support the trial court’s
best-interest finding. While the evidence shows that Mother completed some classes
required by her family service plan, she failed to complete others such as her
domestic violence classes.
Father argues that there was no evidence or witness testimony on the
availability of programs to assist him so this factor is neutral. But Mother’s and
Father’s family service plans were tailored to address the issues that resulted in
C.C.’s removal. See In re D.R.A., 374 S.W.3d at 535 (considering classes and
programs included in parent’s family service plan). To that point, Father has
completed his parenting classes, is attending counseling sessions, and completed his
47 psychological assessment. But he was not truthful during his psychological
assessment when discussing his criminal history.
Finally, we consider acts or omissions by Mother and Father indicating that
the existing parent-child relationship is improper and any excuses they have for their
behavior. While in Mother’s and Father’s care, C.C. was endangered not only by
instances of domestic violence between the parents, but directly when the apartment
she lived in was set on fire. C.C. suffered smoke inhalation and a head injury. Mother
was detained for nine months while C.C. was in the Department’s custody because
she was charged with endangering C.C., and now she is on deferred adjudication
which prohibits her from being around C.C.
As for Father, the evidence showed that he failed to visit C.C. 29 percent of
the time, including during her birth month. See In re S.N., 287 S.W.3d 183, 188 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (considering parent’s inconsistent
visitations with child and other failures in complying with family service plan). He
also did not give the Department the information necessary to verify his housing or
employment, and he did not disclose his criminal history until a background check
revealed extensive misdemeanor and felony convictions.
Considering the relevant factors and viewing the evidence in the appropriate
light, we hold that there is legally and factually sufficient evidence that terminating
48 Mother’s and Father’s parental rights was in C.C.’s best interest. See TEX. FAM.
CODE § 106.001(2); Holley, 544 S.W.2d at 371–72.
We overrule Mother’s and Father’s final issues.
Conclusion
We affirm the trial court’s order.
Sarah Beth Landau Justice
Panel consists of Justices Goodman, Landau, and Hightower.
Related
Cite This Page — Counsel Stack
In the Interest of C.C. AKA C.C., Child v. Department of Family and Protective Services, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-cc-aka-cc-child-v-department-of-family-and-texapp-2024.