in the Interest of C.J.P., O.R.P., B.H.P., Children
Opinion
Affirmed and Opinion Filed October 14, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00233-CV
IN THE INTEREST OF C.J.P., O.R.P., B.H.P., CHILDREN
On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-19-01286-X
MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Goldstein Opinion by Justice Partida-Kipness Father and Mother appeal the trial court’s decree terminating their parental
rights to their children C.J.P., O.R.P., and B.H.P. At the time of termination in 2022,
C.J.P. was eleven years old, O.R.P. was six years old, and B.H.P. was four years old.
Father challenges the termination on jurisdictional grounds. Mother argues the
evidence was legally and factually insufficient to support the trial court’s finding
that termination was in the children’s best interest. We affirm.
BACKGROUND
On September 3, 2019, and September 4, 2019, the Department of Family and
Protective Services (the Department) received two referrals alleging physical abuse
of C.J.P. by Father. The second referral was triggered by a suicide outcry made by C.J.P. at school. The school reported that C.J.P. “talked about going home to choke
himself to death” and indicated Father had choked him in the past. The school
notified the police department and Mother. A police officer interviewed C.J.P. and
Mother at the school. Mother told the officer Father had not choked or hurt the
children. She revealed the children may have witnessed Father choking her “a long
time ago.” She also reported that Father “talks about committing suicide all the time,
quite frequently.”
On September 6, 2019, Department investigator Anette Ezeomodo
interviewed C.J.P. at school. C.J.P. told Ezeomodo that Father choked him until he
passed out but could not remember when it happened. C.J.P. reported falling off his
scooter the prior evening, and Ezeomodo observed he had a bruise on his left eye
and a scar on the back of his right hand. Ezeomodo also interviewed Mother and
Father at their residence. During those interviews, Mother again denied that Father
ever choked C.J.P. and reported Father “talks about suicide all the time.” Father
stated he does not abuse C.J.P. and denied being suicidal. Ezeomodo observed
O.R.P. and B.H.P in the home but did not interview them due to their young ages.
Over the following weeks and months, Department investigators met with Father,
Mother, the children, and third parties who knew the family. Father and Mother
agreed to cooperate with the Department’s services but were unwilling to participate
with Family based Safety Services (FBSS). On December 19, 2019, the Department
–2– filed its Petition for Order to Participate in Services. The trial court did not hear or
rule on the petition.
On May 4, 2020, the Department received a new open investigation on the
case based on concerns of domestic violence in the home. The incident triggering
that investigation was an altercation between Mother and Mother’s sister, Austina
Mock. According to Mock and Father, Mother grabbed Mock by the hair and “ripped
out about half of [Mock’s] hair” and caused her scalp to bleed. Mother maintains
Mock was the aggressor and testified she grabbed Mock’s hair “to restrain her from
attacking.” Mother also testified she did not pull Mock’s hair intentionally. Rather,
the hair came out when Father tackled Mother into a wall. Police officers arrested
Mother at the home. She was charged and received a sentence of nine months
deferred adjudication probation, which she completed. The Department took
possession of the children following the assault and filed its original petition for
protection of the children, for conservatorship, and for termination of parental rights.
On May 5, 2020, the trial court signed an ex parte order for emergency care and
temporary custody appointing Dallas County Child Protective Services temporary
managing conservator of the children. In support of the appointment, the trial court
found a continuing danger to the physical health and/or safety of the children if
returned to the parents, and determined it was contrary to the children’s welfare to
remain at home and placement would be in the best interest of the children. The case
was set for trial on April 13, 2021 and had a May 10, 2021 dismissal date.
–3– After an unsuccessful mediation, Mother filed a “Joint1 Motion to Extend
Deadline, Motion for Jury Trial Setting and First Motion for Continuance” on April
6, 2021. The basis for the requested extension was that the parties were unable to
reach a mediated settlement agreement and the children’s counselors believed the
parties could benefit from additional family counseling. Father also indicated he
would request a jury trial if the parties could not reach a settlement.
The trial court granted the agreed motion by written order on April 7, 2021.
The order stated the trial court was granting the motion “for good cause shown,” set
the case for a jury trial on October 11, 2021, and set a new dismissal date of
November 8, 2021. Father filed a motion to extend the dismissal date on September
27, 2021. The trial court granted Father’s extension motion and set the new dismissal
date for December 1, 2021. Trial commenced November 29, 2021.
The trial court conducted the termination proceeding on six dates between
November 29, 2021, and March 1, 2022. The trial court stated its ruling on the record
at a March 7, 2022 hearing and signed the decree of termination on March 15, 2022.
The trial court terminated Father and Mother’s parental rights under sections
1 The motion states it is filed “jointly by and through” the parties’ counsel, but is signed only by Mother’s counsel. On appeal, Father describes the motion as one “purported to be a joint motion” by the parties. Father did not object to the motion in the trial court. Any objection to the motion on appeal has, therefore, been waived. Further, Mother’s counsel certified that the parties conferred on the motion and “agreed upon” the items presented in the motion. No party objected to that certification below. Under this record we construe the “joint motion to extend deadline” as an agreed motion. –4– 161.001(b)(1)(D) and 161.001(b)(1)(E) of the family code. The trial court also found
termination was in the best interest of the children. This appeal followed.
ANALYSIS
Father and Mother appeal the termination order on different grounds. Father
contends the termination order was signed after the mandatory dismissal date and is
void. Mother challenges the legal and factual sufficiency of the evidence to support
the trial court’s best interest findings. We address Father’s jurisdictional challenge
first because if we conclude the termination order is void, Mother’s appeal of the
merits of the order will be mooted. See White v. Smith, 591 S.W.3d 198, 202–03
(Tex. App.—Tyler 2019, no pet.) (“If a ruling is void, the appellate court lacks
jurisdiction to review the ruling’s merits.”); Freedom Commc’ns, Inc. v. Coronado,
372 S.W.3d 621, 623–24 (Tex. 2012) (“[A]ppellate courts do not have jurisdiction
to address the merits of appeals from void orders or judgments; rather, they have
jurisdiction only to determine that the order or judgment underlying the appeal is
void and make appropriate orders based on that determination.”); Custom Corps.,
Inc. v. Sec.
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Affirmed and Opinion Filed October 14, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00233-CV
IN THE INTEREST OF C.J.P., O.R.P., B.H.P., CHILDREN
On Appeal from the 305th Judicial District Court Dallas County, Texas Trial Court Cause No. JC-19-01286-X
MEMORANDUM OPINION Before Justices Partida-Kipness, Reichek, and Goldstein Opinion by Justice Partida-Kipness Father and Mother appeal the trial court’s decree terminating their parental
rights to their children C.J.P., O.R.P., and B.H.P. At the time of termination in 2022,
C.J.P. was eleven years old, O.R.P. was six years old, and B.H.P. was four years old.
Father challenges the termination on jurisdictional grounds. Mother argues the
evidence was legally and factually insufficient to support the trial court’s finding
that termination was in the children’s best interest. We affirm.
BACKGROUND
On September 3, 2019, and September 4, 2019, the Department of Family and
Protective Services (the Department) received two referrals alleging physical abuse
of C.J.P. by Father. The second referral was triggered by a suicide outcry made by C.J.P. at school. The school reported that C.J.P. “talked about going home to choke
himself to death” and indicated Father had choked him in the past. The school
notified the police department and Mother. A police officer interviewed C.J.P. and
Mother at the school. Mother told the officer Father had not choked or hurt the
children. She revealed the children may have witnessed Father choking her “a long
time ago.” She also reported that Father “talks about committing suicide all the time,
quite frequently.”
On September 6, 2019, Department investigator Anette Ezeomodo
interviewed C.J.P. at school. C.J.P. told Ezeomodo that Father choked him until he
passed out but could not remember when it happened. C.J.P. reported falling off his
scooter the prior evening, and Ezeomodo observed he had a bruise on his left eye
and a scar on the back of his right hand. Ezeomodo also interviewed Mother and
Father at their residence. During those interviews, Mother again denied that Father
ever choked C.J.P. and reported Father “talks about suicide all the time.” Father
stated he does not abuse C.J.P. and denied being suicidal. Ezeomodo observed
O.R.P. and B.H.P in the home but did not interview them due to their young ages.
Over the following weeks and months, Department investigators met with Father,
Mother, the children, and third parties who knew the family. Father and Mother
agreed to cooperate with the Department’s services but were unwilling to participate
with Family based Safety Services (FBSS). On December 19, 2019, the Department
–2– filed its Petition for Order to Participate in Services. The trial court did not hear or
rule on the petition.
On May 4, 2020, the Department received a new open investigation on the
case based on concerns of domestic violence in the home. The incident triggering
that investigation was an altercation between Mother and Mother’s sister, Austina
Mock. According to Mock and Father, Mother grabbed Mock by the hair and “ripped
out about half of [Mock’s] hair” and caused her scalp to bleed. Mother maintains
Mock was the aggressor and testified she grabbed Mock’s hair “to restrain her from
attacking.” Mother also testified she did not pull Mock’s hair intentionally. Rather,
the hair came out when Father tackled Mother into a wall. Police officers arrested
Mother at the home. She was charged and received a sentence of nine months
deferred adjudication probation, which she completed. The Department took
possession of the children following the assault and filed its original petition for
protection of the children, for conservatorship, and for termination of parental rights.
On May 5, 2020, the trial court signed an ex parte order for emergency care and
temporary custody appointing Dallas County Child Protective Services temporary
managing conservator of the children. In support of the appointment, the trial court
found a continuing danger to the physical health and/or safety of the children if
returned to the parents, and determined it was contrary to the children’s welfare to
remain at home and placement would be in the best interest of the children. The case
was set for trial on April 13, 2021 and had a May 10, 2021 dismissal date.
–3– After an unsuccessful mediation, Mother filed a “Joint1 Motion to Extend
Deadline, Motion for Jury Trial Setting and First Motion for Continuance” on April
6, 2021. The basis for the requested extension was that the parties were unable to
reach a mediated settlement agreement and the children’s counselors believed the
parties could benefit from additional family counseling. Father also indicated he
would request a jury trial if the parties could not reach a settlement.
The trial court granted the agreed motion by written order on April 7, 2021.
The order stated the trial court was granting the motion “for good cause shown,” set
the case for a jury trial on October 11, 2021, and set a new dismissal date of
November 8, 2021. Father filed a motion to extend the dismissal date on September
27, 2021. The trial court granted Father’s extension motion and set the new dismissal
date for December 1, 2021. Trial commenced November 29, 2021.
The trial court conducted the termination proceeding on six dates between
November 29, 2021, and March 1, 2022. The trial court stated its ruling on the record
at a March 7, 2022 hearing and signed the decree of termination on March 15, 2022.
The trial court terminated Father and Mother’s parental rights under sections
1 The motion states it is filed “jointly by and through” the parties’ counsel, but is signed only by Mother’s counsel. On appeal, Father describes the motion as one “purported to be a joint motion” by the parties. Father did not object to the motion in the trial court. Any objection to the motion on appeal has, therefore, been waived. Further, Mother’s counsel certified that the parties conferred on the motion and “agreed upon” the items presented in the motion. No party objected to that certification below. Under this record we construe the “joint motion to extend deadline” as an agreed motion. –4– 161.001(b)(1)(D) and 161.001(b)(1)(E) of the family code. The trial court also found
termination was in the best interest of the children. This appeal followed.
ANALYSIS
Father and Mother appeal the termination order on different grounds. Father
contends the termination order was signed after the mandatory dismissal date and is
void. Mother challenges the legal and factual sufficiency of the evidence to support
the trial court’s best interest findings. We address Father’s jurisdictional challenge
first because if we conclude the termination order is void, Mother’s appeal of the
merits of the order will be mooted. See White v. Smith, 591 S.W.3d 198, 202–03
(Tex. App.—Tyler 2019, no pet.) (“If a ruling is void, the appellate court lacks
jurisdiction to review the ruling’s merits.”); Freedom Commc’ns, Inc. v. Coronado,
372 S.W.3d 621, 623–24 (Tex. 2012) (“[A]ppellate courts do not have jurisdiction
to address the merits of appeals from void orders or judgments; rather, they have
jurisdiction only to determine that the order or judgment underlying the appeal is
void and make appropriate orders based on that determination.”); Custom Corps.,
Inc. v. Sec. Storage, Inc., 207 S.W.3d 835, 837 (Tex. App.—Houston [14th Dist.]
2006, no pet.) (dismissing appeal as moot where related mandamus proceeding had
declared judgment upon which appeal was based as void).
I. Father’s appeal
In one issue, Father contends the March 15, 2022 termination order is void
because the trial court signed it after the initial statutorily required dismissal date of
–5– May 10, 2021 had passed. See TEX. FAM. CODE § 263.401(a) (providing for
automatic dismissal of termination suit if trial has not commenced or an extension
has not been granted on the first Monday after the first anniversary of the temporary
order appointing the Department temporary managing conservator). More
specifically, Father maintains the trial court lost jurisdiction when it extended the
dismissal date on April 7, 2021, without making findings that extraordinary
circumstances necessitated the children remaining in the temporary managing
conservatorship of the Department and such an extension would be in the children’s
best interest. We review questions of subject matter jurisdiction and statutory
interpretation de novo. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 682 (Tex.
2020); Hegar v. Am. Multi-Cinema, Inc., 605 S.W.3d 35, 40 (Tex. 2020). “When
interpreting statutes, we look to the plain meaning of the enacted text” and enforce
it “as written.” KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 183
(Tex. 2019). Similarly, we interpret court orders, including the supreme court’s
emergency orders, “according to the plain meaning of their terms.” Kim v. Ramos,
632 S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.] 2021, no pet.); Green v. Villas
on Town Lake Owners Ass’n, Inc., No. 03-20-00375-CV, 2021 WL 4927414, at *9
(Tex. App.—Austin Oct. 22, 2021, pet. denied) (mem. op.). Under this record, we
conclude the trial court had jurisdiction over the case when it signed the termination
decree.
–6– A. Jurisdictional requirements of TEX. FAM. CODE § 263.401
In cases where the Department requests termination of parental rights or
conservatorship of a child, the family code requires the court to begin trial no later
than “the first Monday after the first anniversary of the date the court rendered a
temporary order appointing the department as temporary managing conservator.”
TEX. FAM. CODE § 263.401(a). The trial court may extend the deadline once for 180
days upon finding that “extraordinary circumstances necessitate the child remaining
in the temporary managing conservatorship of the department and that continuing
the appointment of the department as temporary managing conservator is in the best
interest of the child.” Id. § 263.401(b). “If the court retains the suit on the court’s
docket, the court shall render an order in which the court:
(1) schedules the new date on which the suit will be automatically dismissed if the trial on the merits has not commenced, which date must be not later than the 180th day after the time described by Subsection (a);
(2) makes further temporary orders for the safety and welfare of the child as necessary to avoid further delay in resolving the suit; and
(3) sets the trial on the merits on a date not later than the date specified under Subdivision (1).”
TEX. FAM. CODE § 263.401(b)(1–3). If the trial court grants an extension under
subsection (b) but fails to commence the trial on the merits before the new dismissal
date, “the court’s jurisdiction over the suit is terminated and the suit is automatically
dismissed without a court order.” Id. § 263.401(c); In re G.X.H., 627 S.W.3d 288,
292 (Tex. 2021).
–7– Here, the trial court named the Department temporary managing conservator
of the children on May 5, 2020. Thus, the initial dismissal date was Monday, May
10, 2021. See TEX. FAM. CODE § 263.401(a) (dismissal date is “the first Monday
after the first anniversary of the date the court rendered a temporary order appointing
the department as temporary managing conservator.”). On April 7, 2021, the trial
court granted the parties’ “joint” motion to extend the dismissal deadline and ordered
a new dismissal date of November 8, 2021. Father maintains the extension was
ineffective because the trial court “did not make the required findings” set out in
section 263.401(b). According to Father, the trial court lost jurisdiction after May
10, 2021, because it failed to issue specific findings “that extraordinary
circumstances necessitate the child remaining in the temporary managing
conservatorship of the Department” and “that continuing the appointment of the
department as temporary managing conservator is in the best interest of the child.”
We disagree.
The Texas Supreme Court held in In re GHX that such alleged defects are not
jurisdictional and must be preserved for appellate review:
In sum, we conclude that, while a trial court’s failure to timely extend the automatic dismissal date before that date passes—through a docket- sheet notation or otherwise—is jurisdictional, claimed defects relating to the other requirements of 263.401(b) are not. Accordingly, with the exception of a trial court’s failure to extend the automatic dismissal date before it passes, complaints regarding the trial court’s compliance with the requirements in subsection (b) must be preserved for appellate review. Because the parents failed to preserve them in this case, we hold their complaints regarding the timing and form of the
–8– order resetting the trial and dismissal dates are waived. See TEX. R. APP. P. 33.1.
In re G.X.H., 627 S.W.3d at 301 (emphasis added). This Court and several of our
sister courts have applied In re G.X.H. to hold that complaints regarding a trial
court’s failure to comply with the requirements of subsection (b), including a failure
to make best interest and extraordinary circumstances findings, must be preserved
for appellate review and are, therefore, not jurisdictional. E.g., In re P.Z.F., 651
S.W.3d 147, 153 (Tex. App.—Dallas 2021, pet. denied) (noting In re G.H.X. holding
that “claimed defects relating to the other requirements of 263.401(b) are not
[jurisdictional]” and concluding “Father’s other complaints that the trial court failed
to make the findings described in subsection (b) were not raised in the trial court
and, thus, were not preserved for our review.”) (citing In re G.H.X.); M. P. v. Tex.
Dep’t of Fam. & Protective Servs., No. 03-22-00163-CV, 2022 WL 4281617, at *5
(Tex. App.—Austin Sept. 16, 2022, no pet. h.) (mem. op.) (applying In re G.X.H.
and concluding Mother did not preserve jurisdictional argument for review because
she did not raise her complaint about the lack of a best interest finding until after the
initial dismissal date had passed); In re P.R., No. 10-22-00062-CV, 2022 WL
3655402, at *3 (Tex. App.—Waco Aug. 24, 2022, no pet. h.) (mem. op.) (“any
complaint regarding the failure of the trial court to make an express finding of
extraordinary circumstances was not preserved for appellate review.”); In re J.F.,
No. 07-22-00058-CV, 2022 WL 3328274, at *3 (Tex. App.—Amarillo Aug. 11,
2022, no pet. h.) (mem. op.) (“While a trial court’s failure to timely extend the –9– automatic dismissal date before that date passes is jurisdictional, claimed defects
relating to the other requirements of subsection 263.401(b) are not.”); In re R.J.R.,
No. 04-21-00246-CV, 2021 WL 5813827, at *3 (Tex. App.—San Antonio Dec. 8,
2021, pet. denied) (mem. op.) (appellant’s complaint the trial court failed to make
the section 263.401(b) findings was not preserved for review because she did not
raise the issue in the trial court).
Here, Father’s complaint that the trial court failed to issue section 263.401
findings was not preserved for review. Father did not raise this issue when the trial
court issued the April 7, 2021 extension order or at any time after the initial dismissal
date passed. Indeed, Father continued to participate in the litigation after the first
extension order. He moved to take the deposition of C.J.P.’s therapist and to employ
a third-party therapist, filed a response to the guardian ad litem’s motion to modify
the temporary orders, and objected to a visiting judge presiding over hearings. Father
even filed a motion to extend the dismissal date on September 27, 2021. The trial
court granted Father’s extension motion and set the new dismissal date for December
1, 2021. Trial commenced November 29, 2021. Father did not assert objections to
the extension order at commencement of trial, during trial, or to the trial court’s
rendition of judgment. Father also failed to raise deficiencies in the extension order
in his post-judgment motion for new trial. Applying In re G.X.H. and In re P.Z.F.,
we conclude Father failed to preserve this issue for review. In re G.X.H., 627 S.W.3d
at 301 (“Accordingly, with the exception of a trial court’s failure to extend the
–10– automatic dismissal date before it passes, complaints regarding the trial court's
compliance with the requirements in subsection (b) must be preserved for appellate
review.”); In re P.Z.F., 651 S.W.3d at 153; M. P., 2022 WL 4281617, at *5; In re
P.R., 2022 WL 3655402, at *3; In re J.F., 2022 WL 3328274, at *3; In re R.J.R.,
2021 WL 5813827, at *3. We overrule Father’s first issue. TEX. R. APP. P. 33.1.
Father contends the best interest and extraordinary findings are jurisdictional
and, thus, not waivable. He relies on this Court’s decision in In re J.S., No. 05-21-
00898-CV, 2022 WL 620709 (Tex. App.—Dallas Mar. 3, 2022, pet. granted) (mem.
op.) to support his argument. In J.S., the initial dismissal date for the termination suit
was February 8, 2021. Id. at *3. The case was first set for trial on that date, but trial
did not commence; instead, the “court conferred off the record with the parties’
attorneys and then announced on the record that the parents would receive a jury
trial and that the trial would take place on June 14.” Id. At the Department’s request,
and without objection from the parents, the court made verbal findings that it was in
the child’s best interest to extend the case and retain the Department as the child’s
temporary managing conservator. Id. The trial court did not issue a written order
setting a new dismissal date until March 30, 2021, nearly six weeks after the initial
dismissal date. The March 30 order included findings that “ ‘extraordinary
circumstances necessitate the child remaining in the temporary managing
conservatorship of the Department,’” and continuing the appointment is in the
–11– child’s best interest. Id. The court set the new dismissal date for August 7, 2021. Id.
Trial commenced on June 14, 2021. Id.
On appeal, the panel noted the March 30 order was entered too late to extend
the jurisdictional period because it came after the initial dismissal date of February
8. In re J.S., 2022 WL 620709 at *3. Thus, the question on appeal was whether the
February 8 oral finding on the record satisfied section 263.401(b) and extended the
dismissal date. Id. The J.S. panel concluded the oral finding did not satisfy
263.401(b) because the trial court made only a best interest finding on February 8
and did not mention extraordinary circumstances. Id. (“A finding that it is in the
child's best interest for the case to be extended and for the Department to remain as
temporary managing conservator is not a finding of extraordinary circumstances as
required by subsection (b).”). Under that record, the case was automatically
dismissed after February 8 and the trial court's judgment was void. Id. Father
maintains the same logic applies here. We disagree, however, because In re J.S. is
distinguishable from the case at bar.
For example, the panel in J.S. answered a different question than the one
presented here. There, the panel concluded that making one of the required findings
under section 263.401(a) did not constitute making the other required finding. In re
J.S., 2022 WL 620709 at *3. Here, the trial court made both required findings. The
trial court explicitly found good cause for the extension in its written order. The
finding of “good cause” encompassed a finding of extraordinary circumstances and,
–12– as such, met the requirements of 263.401(b). E.g., Foster v. Cunningham, 825
S.W.2d 806, 808 (Tex. App.—Fort Worth 1992, writ denied) (“good cause exception
is necessarily a narrow one requiring a showing of extraordinary circumstances.”);
see also In re G.A., No. 01-11-00565-CV, 2012 WL 1068630, at *7 (Tex. App.—
Houston [1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.) (“a finding of
extraordinary circumstances under section 263.401(b) satisfies the “good cause”
requirement of Rule 18a.”). As for a best interest finding, the parties agreed in the
joint motion for extension that it was in the best interests of the children to extend
the dismissal date and the Department’s role of temporary managing conservator.
As such, by granting the joint extension motion, the trial court necessarily made a
best interest finding. See, e.g., In re Weekley Homes, L.P., 295 S.W.3d 309, 316
(Tex. 2009) (concluding trial court’s decision to order forensic examination implied
a finding that evidence was not reasonably available and required extraordinary steps
for retrieval and production);see also In re Lynd Co., 195 S.W.3d 682, 686 (Tex.
2006) (absent a trial court’s express finding that a party received late notice of the
judgment, a finding should be implied by the court's granting of a motion for new
trial). see also In re F.S., No. 09-22-00114-CV, 2022 WL 4371008, at *8 (Tex.
App.—Beaumont Sept. 22, 2022, no pet. h.) (mem. op.) (“since the parties did not
ask the trial court for written findings, the findings may be implied if the record
before the appellate court supports the ruling the trial court made.”). Unlike In re
J.S., the trial court made both subsection (b) findings here. Further, the extension
–13– order was signed, and those findings made before the initial dismissal date passed.
In J.S., in contrast, the extension order was not signed until after the dismissal
deadline had already passed. Id. Moreover, the panel in J.S. was not presented with
the question of appellate preservation. We conclude J.S. is inapplicable to our
analysis here.
We instead find this case analogous to In re G.X.H. and In re P.Z.F. In those
cases, as here, the extension order (or its equivalent) was signed or made before the
initial dismissal date, and both the Texas Supreme Court and this Court concluded
the issuance of extraordinary circumstances and best interest findings were not
jurisdictional.2 Applying those holdings here, we conclude the Department’s suit
was not automatically dismissed on May 10, 2021, because the trial court extended
the automatic dismissal date by written order on April 7, 2021, and retained
jurisdiction over the case. Accordingly, even assuming Father preserved his
complaint about the form of the order for our review, we overrule Father’s sole issue.
2 To the extent In re J.S. can be construed as conflicting with In re P.Z.F. regarding preservation of error or the non-jurisdictional nature of the best interest and extraordinary circumstances findings required by the statute, we are bound by stare decisis to follow In re P.Z.F., the earlier case. Mitschke v. Borromeo, 645 S.W.3d 251, 256–58 (Tex. 2022) (“If one appellate panel decides a case, and another panel of the same court differently resolves a materially indistinguishable question in contravention of a holding in the prior decision, the second panel has violated the foundational rule of stare decisis.” Under those circumstances, a third panel is “objectively bound to follow the earliest non-superseded line of cases . . . .”). Further, the Texas Supreme Court denied the petition filed in In re P.Z.F., but granted the petition for review on rehearing in In re J.S. The Texas Supreme Court will hear argument in In re J.S. in January 2023. The granting of the petition signals that at least four justices are convinced the court of appeals erred in its judgment. Texas Rules of Form: The Greenbook Appendix D (Texas Law Review Ass’n ed., 14th ed. 2018). –14– B. Jurisdiction after first extension
Father’s appeal is limited to his argument that the April 7, 2021 order did not
extend the trial court’s jurisdiction, However, on October 6, 2021, the trial court
extended the dismissal date a second time. Section 263.401 only empowered the trial
to extend the automatic dismissal date for 180 days. TEX. FAM. CODE § 263.401(c).
Because the trial court extended the dismissal date a second time, we must determine
whether the trial court retained jurisdiction over this matter between November 8,
2021, the first extended dismissal date, and November 29, 2021, the date trial began.
See Nalle v. City of Austin, 85 Tex. 520, 550, 22 S.W. 960, 961 (1893) (“Every court
must, in the first instance, determine its own jurisdiction”); see also Ex Parte
Monroe, No. 07-14-00429-CV, 2015 WL 690826, at *1 (Tex. App.—Amarillo Feb.
18, 2015, no pet.) (“A court of appeals is required to determine its own jurisdiction
in each case.”) (citing Ex parte Lewis, 663 S.W.2d 153, 154 (Tex. App.–Amarillo
1983, orig. proceeding)).
On September 27, 2021, Father filed a motion to extend the dismissal date
Father requested the extension to provide his expert witness additional time and
opportunity to evaluate the notes of the children’s therapists, interview Father,
observe a visit between Father and children, and formulate an opinion concerning
conservatorship of the children. Father cited “the current COVID Order” as authority
to extend the dismissal date and continue the trial setting. The trial court granted
–15– Father’s motion by written order on October 6, 2021, and set the new dismissal date
for December 1, 2021. Trial commenced November 29, 2021.
When Father filed the extension motion on September 27, 2021, the trial court
had already granted the sole 180-day extension allowed by statute on April 7, 2021.
However, the supreme court has issued a series of emergency orders in response to
the COVID-19 pandemic that “permit[ ] trial courts to suspend the deadlines and
procedures in Section 263.401.” C.C. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-21-00587-CV, 2022 WL 1121428, at *2 (Tex. App.—Austin Apr. 15, 2022,
no pet.) (mem. op.); E. N. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-21-
00014-CV, 2021 WL 2460625, at *5 (Tex. App.—Austin June 17, 2021, no pet.)
(mem. op.) (stating emergency orders “would theoretically have allowed the district
court to extend the case indefinitely by granting an extension under each successive
order.”). Two of those orders were in effect when the second extension was sought
and granted here. The Fortieth Emergency Order was in effect when Father filed his
extension motion, and the Forty-Third Emergency Order was in effect when the trial
court issued its second extension order on October 6, 2021. Fortieth Emergency
Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 911 (Tex. 2021)
(effective August 1, 2021); Forty-Third Emergency Order Regarding the COVID-
19 State of Disaster, 629 S.W.3d 929 (Tex. 2021) (effective October 1, 2021). The
Forty-Third Emergency Order provides that in any proceeding under Subtitle E, Title
–16– 5 of the family code, “the dismissal date may be extended, without a participant’s
consent, as follows:
a. for any such proceeding that, on May 26, 2021, had a dismissal date that was previously modified under a prior Emergency Order Regarding the COVID-19 State of Disaster, the court may extend the dismissal date for a stated period ending no later than December 1, 2021;
b. for any such proceeding that, on May 26, 2021, had been previously retained on the court's docket pursuant only to Section 263.401(b) or (b-1), the court may extend the dismissal date for a stated period ending no later than February 1, 2022;
c. for any such proceeding that, on May 26, 2021, had not been previously retained on the court's docket pursuant to Section 263.401(b) or (b-1), the court may extend the initial dismissal date as calculated under Section 263.401(a) for a stated period ending no later than April 1, 2022; or
d. for any such proceeding that is filed on or after May 26, 2021, the court may extend the initial dismissal date as calculated under Section 263.401(a) only as provided by Section 263.401(b) or (b-1).
Forty-Third Emergency Order, 629 S.W.3d at 930; see also Fortieth Emergency
Order, 629 S.W.3d at 912 (same dates as found in paragraph 5 of Forty-Third
Emergency Order). Paragraph 5.b of the Forty-Third Emergency Order applied to
the underlying proceeding because the trial court’s first extension order was signed
April 7, 2021. Accordingly, on May 26, 2021, the underlying proceeding “had been
previously retained on the court’s docket pursuant only to Section 263.401(b) or (b-
1).” Forty-Third Emergency Order, 629 S.W.3d at 930. The Forty-Third Emergency
Order, therefore, permitted the trial court to extend the dismissal date a second time
“for a stated period ending no later than February 1, 2022.” Id.; E.g., C.C., 2022 WL
–17– 1121428, at *4 (concluding trial court retained jurisdiction over the case at the time
of trial where three extensions of dismissal date were permitted by Covid emergency
orders in effect at the time of each extension).
C. Conclusion
We conclude the trial court’s extension of the court’s jurisdiction pursuant to
Section 263.401(b) was made timely for the trial court to extend its jurisdiction over
the proceedings, and any complaint regarding the failure of the trial court to make
an express finding of extraordinary circumstances was not preserved for appellate
review. We overrule Father’s sole appellate issue.
II. Mother’s Appeal
In a single issue, Mother contends the evidence was legally and factually
insufficient to support the trial court’s determination that terminating her parental
rights was in the best interests of the children.
A. Standard of Review
Because the fundamental liberty interest of a parent in the care, custody, and
control of her child is one of constitutional dimensions, involuntary parental
termination must be strictly scrutinized. In re C.V.L., 591 S.W.3d 734, 748 (Tex.
App.—Dallas 2019, pet. denied) (first citing Troxel v. Granville, 530 U.S. 57, 65–
66, (2000); In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014); and then citing Holick
v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). In parental termination cases, due process
requires the petitioner to justify termination by clear and convincing evidence. TEX.
–18– FAM. CODE § 161.001(b); see In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (citing
Santosky v. Kramer, 455 U.S. 745, 753–54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).
“Clear and convincing evidence” is that “measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” In re N.G., 577 S.W.3d 230, 235 (Tex.
2019) (per curiam) (quoting TEX. FAM. CODE § 101.007); In re N.T., 474 S.W.3d
465, 475 (Tex. App.—Dallas 2015, no pet.).
On appeal, we apply a standard of review that reflects the elevated burden at
trial. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014); In re A.T., 406 S.W.3d 365, 370
(Tex. App.—Dallas 2013, pet. denied). “As a matter of logic, a finding that must be
based on clear and convincing evidence cannot be viewed on appeal the same as one
that may be sustained on a mere preponderance.” In re A.C., 560 S.W.3d 624, 630
(Tex. 2018) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Under both legal
and factual sufficiency standards, we (i) consider all the evidence, (ii) defer to the
factfinder's credibility determinations, and (iii) determine whether the factfinder
could reasonably form a firm belief or conviction that the grounds for termination
were proven. In re C.V.L., 591 S.W.3d at 748 (first citing In re N.T., 474 S.W.3d at
475; and then citing In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002)). “The
distinction between legal and factual sufficiency lies in the extent to which disputed
evidence contrary to a finding may be considered.” In re A.C., 560 S.W.3d at 630–
31.
–19– In conducting a legal-sufficiency review of an order terminating parental
rights, the reviewing court cannot ignore undisputed evidence contrary to the finding
but must otherwise assume the factfinder resolved disputed facts in favor of the
finding. In re C.V.L., 591 S.W.3d at 748–49. We “consider all the evidence, not just
that which favors the verdict,” and we assume the fact-finder resolved disputed facts
in favor of its finding if a reasonable fact-finder could do so. In re N.T., 474 S.W.3d
at 475. We disregard all evidence that a reasonable fact-finder could have
disbelieved or found to have been incredible. Id.
When reviewing the factual sufficiency of the evidence supporting a
termination finding, an appellate court asks whether, in light of the entire record, the
evidence is such that a fact-finder could reasonably form a firm conviction about the
truth of the State's allegations against the parent. In re N.T., 474 S.W.3d at 475; In
re J.D.B., 435 S.W.3d 452, 463 (Tex. App.—Dallas 2014, no pet.). The appellate
court must also consider whether the disputed evidence is such that a reasonable
fact-finder could not have reconciled the disputed evidence in favor of its finding.
In re N.T., 474 S.W.3d at 475. If the disputed evidence is so significant that a fact-
finder could not reasonably have formed a firm belief or conviction, then the
evidence is factually insufficient. In re C.V.L., 591 S.W.3d at 749. “And in making
this determination, the reviewing court must undertake ‘an exacting review of the
entire record with a healthy regard for the constitutional interests at stake.’ ” In re
A.B., 437 S.W.3d at 503 (quoting In re C.H., 89 S.W.3d at 26).
–20– B. Best interest of the children
A judicial determination of the “best interest” of a child “is not dependent
upon, or equivalent to, a finding that the child has been harmed by abuse or neglect
or is in danger of such harm.” In re M.J.P., No. 05-16-01293-CV, 2017 WL 655955,
at *6 (Tex. App.—Dallas Feb. 17, 2017, no pet.) (mem. op.). Rather, “best interest”
is “a term of art encompassing a much broader, facts-and-circumstances based
evaluation that is accorded significant discretion.” Id. (quoting In re Lee, 411 S.W.3d
445, 460 (Tex. 2013) (orig. proceeding)); see also In re C.R., 263 S.W.3d 368, 375
(Tex. App.—Dallas 2008, no pet.) (“[P]arental rights may not be terminated merely
because a child might be better off living elsewhere.”).
The supreme court has identified nine factors that may assist our review of a
best-interest finding:
(1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the person seeking custody; (5) the programs available to assist the person seeking custody in promoting the best interest of the child; (6) plans for the child by the person seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that may indicate the parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).3 The Holley factors focus
on the best interest of the child, not the best interest of the parent, and are not
3 Section 263.307(b) lists several best-interest factors the trial court and the Department can consider in determining whether a child’s parents are willing and able to provide the child with a safe environment.
–21– exhaustive. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81,
86 (Tex. App.—Dallas 1995, no writ); In re C.H., 89 S.W.3d at 27.
A best interest finding need not be supported by evidence of every Holley
factor, particularly if there is undisputed evidence that the parental relationship
endangered the child’s safety. See In re C.H., 89 S.W.3d at 27. Undisputed evidence
of just one factor may be sufficient in a particular case to support a finding that
termination is in the child’s best interest. D.M. v. Tex. Dep’t of Fam. & Protective
Servs., No. 03-17-00137-CV, 2017 WL 2628949, at *4 (Tex. App.—Austin June 13,
2017, no pet.) (mem. op.). On the other hand, the presence of scant evidence relevant
to each factor will generally not support such a finding. In re C.H., 89 S.W.3d at 27.
Although courts may consider any other factor relevant to the child’s best interest,
there is “[a] strong presumption ... that a child’s best interests are served by
preserving the parent-child relationship, where possible.” In re D.D.M., 2019 WL
2939259, at *5 (quoting Burns v. Burns, 434 S.W.3d 223, 230 (Tex. App.—Houston
[1st Dist.] 2014, no pet.)); In re R.R., 209 S.W.3d at 116 (“there is a strong
presumption that the best interest of a child is served by keeping the child with a
parent”). However, although there is a strong presumption that maintaining the
parent–child relationship serves the child’s best interest, there is also a presumption
that promptly and permanently placing the child in a safe environment is in the
TEX. FAM. CODE § 263.307(b). Mother does not cite this provision or discuss these other factors in her brief. We, therefore, analyze only the Holley factors here. –22– child’s best interest. TEX. FAM. CODE §§ 153.131(b); 263.307(a); In re D.W., 445
S.W.3d 913, 925 (Tex. App.—Dallas 2014, pet. denied).
C. Application of Law to Facts
Mother contends the evidence is legally and factually insufficient to support
the trial court’s best interest finding. Mother does not specifically cite any Holley
factor in her brief. Her arguments and the evidence she cites in support, however,
implicate factors two, four, five, six, and seven. She also argues generally that no
reasonable trier of fact could form a firm belief or conviction that termination of her
parental rights is in the best interest of the children, even considering all the evidence
in light most favorable to the Department. Because our analysis of the entire record
is guided by the Holley factors, we will apply each factor to the evidence here.
1. The desires of the child
The first Holley factor, the child’s desires, is generally considered neutral
where, as here, the children did not testify due to their young ages. See In re A.C.,
394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (“The young
age of the child render[s] consideration of the child’s desires neutral.”). None of the
children testified here, and there is no evidence of their desires. We, therefore, view
this Holley factor neutrally. See In re G.A.L., No. 05-19-00844-CV, 2020 WL
582282, at *9 (Tex. App.—Dallas Feb. 6, 2020, no pet.) (mem. op.). However, the
children’s second foster mother, K.M., testified that B.H.P. did not enjoy in-person
visits with either parent and would beg K.M. not to take her to the visit. According
–23– to K.M., before a parental visit B.H.P. would scream “please don’t take me, please
keep me safe, I don’t want to go.” This evidence shows a desire of B.H.P. to avoid
contact with Mother and Father. As to B.H.P., we view this factor slightly in favor
of termination. See In re A.O., No. 05-21-00789-CV, 2022 WL 620631, at *9 (Tex.
App.—Dallas Mar. 3, 2022, no pet.) (mem. op.) (if there is no direct evidence of a
child's desires, a factfinder may infer the child’s desires from the other evidence
admitted at trial).
2. The emotional and physical needs of the children now and in the future
The second Holley factor addresses the current and future emotional and
physical needs of the children. Evidence of this factor generally demonstrates what
the child’s emotional and physical needs are, specifically any special needs, and
whether the parent seeking custody was willing and able to meet those needs. See In
re E.N.C., 384 S.W.3d 796, 808 (Tex. 2012). Here, the evidence established the
children suffered severe emotional trauma and physical abuse by their parents that
continued to have adverse effects on their mental health and would require the
children to continue therapy in the future.
C.J.P.’s outcries included allegations Father choked him until he passed out
and punished him by forcing C.J.P. to run laps at the school track and perform
excessive exercises. At the time of trial, C.J.P. was in a residential treatment center
receiving intensive therapy and a specialized level of care. This was due to C.J.P.’s
violent outbursts and incidents where he acted out sexually. For example, in the first –24– foster home placement, the family reported C.J.P. was “performing oral sex on a
foster sibling” so he was removed from that home. He was then placed in a
residential treatment center. Conservatorship Caseworker Travis Gump testified that
C.J.P. “has a fairly high level of need” because he is in a residential treatment center
receiving intensive therapy. C.J.P. has anger issues, violent acting out, and sexual
acting out. He also acts out violently against staff members at the treatment center.
At the time of trial, C.J.P. was making some progress in treatment, but would need
to continue in residential treatment for the foreseeable future. The girls, O.R.P. and
B.H.P., were also experiencing behavioral and emotional issues while in foster care
and were undergoing therapy and counseling. Both girls made outcries of sexual
abuse by Father and Mother. The evidence also shows B.H.P. has hydrocephalus.
Mother insists she has “the ability to house and educate” the children. Other
than being willing to continue the children’s therapy, however, Mother does not
explain how and why she is in a position financially and emotionally to meet the
emotional and physical needs of the children. Under a legal-sufficiency review, we
must presume the trial court disbelieved Mother’ s testimony that she could meet her
children’s emotional and physical needs. See In re A.S., 261 S.W.3d at 87.
Accordingly, under a legal-sufficiency review, this factor weighs in favor of
termination.
Under a factual-sufficiency review, we must consider all of the evidence. In
re N.T., 474 S.W.3d at 475. Mother insists she has the means and willingness to meet
–25– the children’s physical needs because she has a job making $800 a month and an
apartment set up with space for all of the children, furniture, food, and clothing.
Mother also plans to put the children in school and get them the therapy they need.
Mother’s best friend, Michelle McAtee, told the trial court she believes Mother’s
apartment and income are sufficient for the three children to live with Mother. There
is no evidence, however, of how Mother planned to meet C.J.P.’s high level of needs
during and after his discharge from residential treatment. Similarly, the evidence
shows B.H.P. has hydrocephalus. The record is silent as to what special needs she
has because of that medical condition. Prior to removal, Kristy Breukelman, a
Family Based Safety Services (FBSS) caseworker assigned to this case observed the
home was consistently “cluttered and dirty” and “smelled like urine,” and the
children appeared dirty. The record does not show whether Mother had corrected
those issues before trial.
As to the children’s emotional needs, the record shows Mother failed in the
past to meet those needs. Mother expressed disbelief that C.J.P. was suicidal during
the investigation and at trial and dismissed O.R.P.’s outcries as fabrications made by
a child seeking attention. Caseworker Breukelman concluded Mother did not believe
C.J.P. was suicidal and observed Mother did not appear to be protective of C.J.P.
and did not believe the concerns about him. Mother was not receptive to receiving
services for herself or the children and did not cooperate with FBSS until order by
the court to cooperate. She did not think services were necessary because they had
–26– contact with CPS in the past and had completed counseling services then. The trial
court could reasonably conclude from Mother’s own testimony that she does not
believe the children were suffering emotional trauma requiring continued therapy.
Caseworker Gump testified Mother failed to protect the children from sexual
and physical abuse “because she took no action to stop it or prevent it from occurring
again.” CASA Caseworker Larry Dolan agreed with Gump’s assessment. According
to Dolan, Mother admitted to him that domestic violence occurred in the home and
she failed to protect the children from it. Mother also admitted she did not protect
C.J.P. or intervene when Father picked C.J.P. up by the throat and choked him. The
record also shows Mother did not timely report an incident in which she witnessed
O.R.P. touching Father’s penis. The judge could infer from Mother’s past conduct
endangering the children’s welfare that similar conduct would recur if the children
were returned to her care. In re D.W., 445 S.W.3d 913, 928 (Tex. App.—Dallas
2014, pet. denied) (first citing In re J.D.B., 435 S.W.3d at 467–68; and then citing
In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on
reh’g)). Considering the entire record, we conclude the second Holley factor
supports termination here and is supported by factually sufficient evidence.
3. The emotional and physical danger to the children now and in the future
The third Holley factor addresses the emotional and physical danger of the
child now and in the future. Evidence of past misconduct or neglect can be used to
measure a parent’s future conduct. In re A.M., 385 S.W.3d 74, 82 (Tex. App.—Waco –27– 2012, pet. denied). We conclude evidence of Mother’s neglect, physical abuse, and
failure to intervene to stop Father’s abuse of the children supports the trial court’s
best interest finding. See, e.g., id., 385 S.W.3d at 82–83 (evidence of mother’s
history of neglecting and endangering children by exposing them to domestic
violence supported trial court’s finding that termination was in children’s best
interest).
The record shows Mother had three children from a previous relationship who
were subject to Department referrals and ultimately removed from Mother’s
custody. The oldest child in that group, O.C., came to the Department’s attention in
2008 when O.C.’s father was accused of sexually abusing her. O.C.’s father
confessed to the sexual abuse, was indicted, and his parental rights were terminated.
Mother’s reaction to the sexual abuse allegations, even in the face of the father’s
confession, was disbelief. Mother maintained her parental rights to O.C. but did not
keep custody of her. The parents caring for O.C. became her possessory managing
conservators. In 2009, another child in that family group, Z.C., received head injuries
including subdural hematomas. It was alleged Mother and her boyfriend, Marcello
Romero, caused the injuries. Z.C. was removed and placed with the family caring
for O.C. Mother had a third child, N.R., with Romero. N.R. was removed and placed
in foster care shortly after he was born. In June 2009, N.R. was given back to Mother
on a monitored return. She was living with Father at that time. On August 25, 2009,
–28– there was a domestic violence incident between Mother and Father. N.R. was
removed and eventually placed with O.C. and Z.C.
Caseworker Gump testified he sees “a pattern of behavior” by Mother that
began with the first family group (O.C., Z.C., and N.R.) and continued with C.J.P.,
O.R.P., and B.H.P. This pattern included domestic violence in the home, sexual
abuse of a child, and Mother’s refusal to accept the sexual abuse occurred. According
to Gump, he “saw a significant parallel between the first sibling group and the
second” concerning the impact of Mother completing services. Specifically, Gump
noted that Mother “completed services in the first case designed to address the risk
factors in the family” but was still involved in domestic violence with the Father and
her sister, Austina Mock, in this case. Gump explained that despite receiving
services in both cases, he saw Mother engage in the same or similar behaviors
following those services. Indeed, the current case arose when C.J.P. told a teacher
he wanted to choke himself until he died. Although C.J.P. was in a residential
treatment facility at the time of the final hearing, Mother was still not convinced
C.J.P. was serious about those statements. Mother expressed the same disbelief
during the investigation underlying this case.
Domestic violence is a continuing theme in Mother’s life. In April 2020,
Caseworker Breukelman visited the home following an instance of domestic
violence between Mother and Father. The altercation occurred when Mother thought
Father was having sex with Mock. Mother became upset, got into a physical
–29– altercation with Father, and “tried to rip his penis off.” Then, on May 4, 2020,
Mother assaulted Mock in the home. That altercation resulted in Mother’s arrest,
charge, and conviction for assault causing bodily injury. The record also shows
Father was charged with aggravated assault against Mother before the children were
born and felony assault against Mother after C.J.P. and O.R.P. were born.
The record also includes allegations of sexual abuse of the children, and
Mother’s failure to stop the abuse. Rona Amora is a licensed professional counselor
who was treating O.R.P. and N.H.P. at the time of trial. O.R.P. told Amora and the
girls’ second foster mother, K.M., that Mother and Father allowed her to watch them
have sex. When K.M. asked O.R.P. “did you sneak to watch it,” O.R.P. responded
“no, I had permission.” O.R.P. was five years old when she reported this. K.M. told
the court about an incident in April 2021 when O.R.P. saw a couple on TV and said
they “were about to have sex.” O.R.P. then explained “in great detail sexual acts”
and the descriptions were “very graphic and very, very detailed.” According to K.M.,
O.R.P. accurately described what happens during sexual intercourse, including that
a male penis begins “growing in size” and then moves in an out of the woman’s
vagina before withdrawing and ejaculating. K.M. concluded O.R.P. gained that
knowledge from watching Mother and Father have sex. Based on O.R.P.’s
statements, K.M. believes Mother was present and participating in the sexual act and
did not stop the children from watching.
–30– O.R.P. also told K.M. and Amora that Mother regularly allowed teenage boys
to come to the house and engage in oral sex on O.R.P. Amora testified that O.R.P.
reported the teenage boys came to the house and Mother allowed the boys to take
off O.R.P.’s clothes and touch her inappropriately. O.R.P. told Amora that her
mother “let them do it” and “didn’t care.”
Amora described Mother and Father as “sexual abusers.” She testified that
both girls reported that Father and Mother were the people having sex in front of
them and allowing them to watch. Amora concluded Mother sexually abused the
children by giving the children permission to watch her and Father have sex and by
allowing teenage boys to inappropriately touch and sexually abuse O.R.P.
Amora further explained she concluded Mother was a sexual abuser who
abused the girls because the girls identified both Mother and Father as their abusers.
Amora believed O.R.P.’s outcry in part because O.R.P. had “language and
knowledge about sexual relations that children her age shouldn’t have.” Further,
O.R.P. and B.H.P. engaged in sexual behaviors after removal inappropriate for their
ages.
Mother denied O.R.P.’s allegations regarding the teenage boys and allowing
the children to watch her have sex with Father. However, Mother admitted she
witnessed but did not report an incident in which she saw O.R.P. holding Father’s
penis. Gump testified Mother told him that she had walked into the kitchen of her
apartment and saw O.R.P. standing in the kitchen with Father’s penis in her hand in
–31– 2018 or 2019. At trial, Mother described the incident differently. She testified she
walked into the bedroom and saw Father and O.R.P. on the bed, and O.R.P. was
“playing with his genitals.” Mother presented conflicting testimony concerning
whether she reported the incident. She admitted, however, that she did not report the
incident before the children were removed in 2020.
In relation to the case with the first family group, the Department concluded
any child in Mother’s care “would be in grave danger.” Caseworker Gump agrees
with that assessment and believes that is still the case now. He further explained the
Department’s concerns about the children’s safety stem from Mother’s engagement
in this same behavior before. Mother completed services “designed to address this
behavior” but those services “didn’t have any affect.” Gump, Amora, and the
Guardian Ad Litem believe termination is in the children’s best interest.
The trial court could have reasonably concluded that considering Mother’s
past relationships, her demonstrated inability to protect her children from the
emotional and physical dangers of domestic violence and sexual activity in the
home, and her minimization of her children’s allegations, the children had and would
continue to be subject to emotional and physical danger. We conclude the evidence
is legally and factually sufficient to support a finding that the third Holley factor
favors termination.
–32– 4. The parental abilities of the person seeking custody
In reviewing the parental abilities of a parent, a factfinder can consider the
parent’s past neglect or past inability to meet the physical and emotional needs of
their children. I.D.G., 579 S.W.3d at 854. A factfinder “may infer from a parent's
past inability to meet a child’s physical and emotional needs an inability or
unwillingness to meet a child’s needs in the future.” J.D., 436 S.W.3d at 118.
“Evidence of a recent improvement does not absolve a parent of a history of
irresponsible choices.” In re A.M., 385 S.W.3d at 83. Mother maintains she has
“exhibited the proper parenting skills that would serve the children’s best interests”
and believes “she is ready to properly take care of her children” because she has
completed and learned from the services provided by the Department. The
Department, in contrast, argues Mother’s inability to provide for the physical and
emotional needs of the children now and in the future “calls into question” Mother’s
parental abilities. We agree with the Department.
As discussed in detail above, the record shows Mother’s inability to meet the
children’s physical and emotional needs. The evidence also shows Mother’s inability
to protect the children from abuse. We conclude the evidence is legally and factually
sufficient to support a finding that this factor weighs in favor of termination.
5. The programs available to assist the person seeking custody in promoting the best interest of the child
Mother testified she completed her court-ordered services and sought other
therapies and classes so she could address any possible issues going forward. This –33– included attending parenting classes at the Genesis Program, which is geared to
helping parents navigate parenting with children who have been traumatized.
Mother, however, refused to participate in services until ordered by the trial court to
do so. Further, Caseworker Gump and the Department have concerns that
completing services are not a marker of success for Mother because she completed
services in the past and then reverted to old behaviors. Those behaviors included
ongoing domestic violence in Mother’s relationships and her disbelief of her
children’s outcries. Under these circumstances, we conclude the availability of
services does not favor reunification here.
6. Plans for the child by the person seeking custody
7. The stability of the home or proposed placement
We consider the sixth Holley factor, the plans for the children, and seventh
Holley factor, the stability of the home or proposed placement, together. The
factfinder may compare the parent’s and the Department’s plans for the child and
consider “whether the plans and expectations of each party are realistic or weak and
ill-defined.” J.D., 436 S.W.3d at 119-20. A parent’s failure to show that he or she is
stable enough to parent children for any prolonged period entitles the factfinder “to
determine that this pattern would likely continue, and that permanency could only
be achieved through termination and adoption.” In re B.S.W., No. 14-04-00496-CV,
2004 WL 2964015, at *9 (Tex. App.—Houston [14th Dist.] Dec. 23, 2004, no pet.)
(mem. op.). A factfinder may also consider the consequences of its failure to
–34– terminate parental rights and that the best interest of the children may be served by
termination so that adoption may occur rather than the temporary foster-care
arrangement that would result if termination did not occur. In re B.H.R., 535 S.W.3d
114, 124 (Tex. App.—Texarkana 2017, no pet.).
Mother told the trial court she has a plan for the children that includes taking
them to school, providing them food, shelter, and clothing, and getting the children
any therapy they may need. At the time of termination, Mother was employed
cleaning houses and providing meals for her friends and earned approximately
$800.00 per month. She also had an apartment set up for her and the children. The
Department’s permanency plan is termination of the parental rights and adoption of
the children. Gump, Amora, and the Guardian Ad Litem agreed the Department’s
plan for termination and adoption was in the children’s best interests. We agree.
There was legally and factually sufficient evidence for the trial court to
determine that the Department’s plan to keep O.R.P. and C.H.P. in the care of their
current foster parents for adoption would provide them with a permanent stable
home they would not find with Mother. See, e.g., J.F.-G., 612 S.W.3d at 389.
“[P]ermanence is of paramount importance in considering a child’s present and
future needs.” Dupree v. Texas Dept. of Protective and Regulatory Servs., 907
S.W.2d 81, 87 (Tex. App.—Dallas 1995, no pet.). The Department’s plan provides
permanence to these children. O.R.P. and B.H.P. have been in the care of their
current foster parents since August 2021. Those parents want to adopt the girls and
–35– “are open to adopting” C.J.P. if the behaviors he is being treated for can be brought
under control. We conclude that the evidence was legally and factually sufficient for
the trial court to form a firm conviction or belief that the Department's permanency
plan was in the children's best interest. See In re A.O., 2022 WL 620631, at *11; see
also In re D.V., 480 S.W.3d 591, 603 (Tex. App.—El Paso 2015, no pet.).
8. The acts or omissions of the parent that may indicate the parent-child relationship is not a proper one
9. Any excuse for the acts or omissions of the parent
Finally, we consider the eighth and ninth Holley factors together. These
factors consider acts or omissions of the parent that indicate the parent-child
relationship is improper, as well as any excuses for the behavior. Mother and Father
admitted they were in a physically abusive relationship before and after the
children’s removal. The evidence also showed Mother sexually abused the children
and failed to intervene when Father physically and sexually abused the children.
Mother’s own testimony indicated a refusal to believe C.J.P. was suicidal. She also
accused O.R.P. of making up her allegations of sexual abuse. Mother also blamed
Father and Mock for causing the altercation that precipitated the children’s removal
even though Mother was the only person arrested and charged.
Given the extent of Mother’s acts or omissions and her failure to recognize
her conduct was detrimental to the children, we conclude these two factors weigh in
favor of termination of parental rights. See In re D.W., 445 S.W.3d 913, 932 (Tex.
App.—Dallas 2014, pet. denied); see also In re V.V., 349 S.W.3d 548, 556 (Tex. –36– App.—Houston [1st Dist.] 2010, pet. denied) (“Texas courts routinely consider
evidence of parent-on-parent physical abuse in termination cases without
specifically requiring evidence that the conduct resulted in a criminal conviction.”);
In re A.M., 385 S.W.3d 74, 82–83 (Tex. App.—Waco 2012, pet. denied) (evidence
of mother's history of neglecting and endangering children by exposing them to
domestic violence supports finding termination was in each child's best interest).
D. Summary of factors and conclusion
Based on the record evidence, when viewed in the light most favorable to the
ruling and as a whole, we conclude that a reasonable trier of fact could have formed
a firm belief or conviction that termination of Mother’s parental rights is in the
children’s best interest and therefore hold the evidence is both legally and factually
sufficient to support the trial court’s best interest findings as to both parents under
section 161.001(b)(2). We overrule Mother’s sole appellate issue.
CONCLUSION
The trial court retained jurisdiction over the case and parties when it rendered
the termination order therefore the order is not void. Further, we conclude the
evidence supports the trial court’s determination that termination of Mother’s
parental rights is in the children’s best interest.
–37– Accordingly, we overrule Father and Mother’s appellate issues and affirm the
trial court’s termination of Father and Mother’s parental rights to C.J.P., O.R.P., and
B.H.P.
/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS JUSTICE
220233F.P05
–38– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF C.J.P., On Appeal from the 305th Judicial O.R.P., B.H.P., CHILDREN, District Court, Dallas County, Texas Trial Court Cause No. JC-19-01286- No. 05-22-00233-CV V. X. Opinion delivered by Justice Partida- Kipness. Justices Reichek and Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee recover its costs of this appeal from appellants jointly and severally.
Judgment entered this 14th day of October 2022.
–39–
in the Interest of C.J.P., O.R.P., B.H.P., Children (in the Interest of C.J.P., O.R.P., B.H.P., Children) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.