In the Interest of C.N.L. and C.T.F., Children v. the State of Texas

Opinion

NUMBER 13-23-00591-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF C.N.L. AND C.T.F, CHILDREN

ON APPEAL FROM THE 267TH DISTRICT COURT OF DEWITT COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Benavides, Tijerina, and Silva Memorandum Opinion by Justice Silva

Appellant Shannon appeals the termination of the parent-child relationship

between her and her two children, Caleb and Chase, following allegations of neglect and

abuse by appellee Texas Department of Family and Protective Services (the

Department). 1 By what we construe as two issues, Shannon argues that “[t]he evidence

1 We refer to the parties and children by aliases in accordance with the rules of appellate

procedure. See TEX. R. APP. P. 9.8(b)(2). was insufficient to support” (1) the statutory grounds for termination and (2) a finding that

termination was in the children’s best interest. We affirm.

I. BACKGROUND

The trial court ordered the removal of Caleb, who was almost three years old, and

Chase, who was five days old, from Shannon following allegations that she and Chase

tested positive for drugs at Chase’s birth. At the statutory status hearing, the trial court

adopted the family service plan for Shannon and each alleged father as orders of the

court. 2 See TEX. FAM. CODE ANN. §§ 263.102, 263.202(b-1). Relevant here, Shannon’s

service plan required her to maintain contact with the Department, obtain and maintain

safe and stable housing, complete parenting classes, complete a drug and alcohol

assessment and follow the recommendations of the assessment, submit to random drug

testing upon request, complete a batterer’s intervention and prevention program (BIPP),

and complete a psychological evaluation and follow the recommendations of the

evaluation. 3 The case proceeded to a bench trial on October 26, 2023, where the

following evidence was adduced.

Shannon testified that she used methamphetamine and marijuana while pregnant

with Chase and confirmed that he tested positive for amphetamines at birth, leading to

the children’s removal. Department Investigator Aaron Holley explained that the

Department attempted to have the children placed with their father but he was

2 Each child had a separate alleged father. The trial court also ordered genetic testing for each

father. The record demonstrates that paternity was established only as to Caleb. The parental rights of Caleb’s father and Chase’s alleged or unknown father were also terminated, but neither are a party to this appeal. 3 At trial, it was revealed that Shannon’s services were set up to occur via Zoom.

2 incarcerated at the time. 4 Shannon provided four other options for placement, including

her brother. However, Shannon’s brother could not take the children because he worked

out of town two weeks at a time, and the other proposed placements could not be

approved due to prior criminal or Department history stemming from drug use.

Tracie Itz testified that she is a “permanency specialist” with Belong, which served

as the Department’s initial community-based care provider for this case. According to Itz,

Shannon initiated services but did not complete them. Angela Stuart replaced Itz as the

permanency specialist and agreed that Shannon initiated but did not complete services.

Stuart specified that Shannon completed the psychological and psychiatric evaluations,

attended some parent-child visits, submitted to two drug tests at the outset of the case, 5

and initiated parenting classes and individual counseling. Stuart explained that Shannon

disclosed methamphetamine use dating back to 2011 in her psychological assessment.

Stuart further testified that the psychological evaluation revealed that Shannon was “at

[a] high risk for relapse without treatment.” Lastly, the psychological evaluation revealed

a history of physical abuse against Shannon by her children’s fathers.

According to Stuart, Shannon did not comply with the recommendations from the

assessments nor complete the drug and alcohol assessment, BIPP, parenting classes,

or individual counseling. Stuart explained that Shannon attended two parent-child visits

but stopped attending despite the Department providing transportation. Lastly, Shannon

ceased all contact with the Department for several months prior to trial, only reaching out

4 It is unclear whether Holley was aware that Caleb and Chase possibly had different fathers.

5 Both drug tests were negative.

3 to Stuart about two weeks before trial. After contact ceased, Stuart went by Shannon’s

home on several occasions, but nobody answered the door or called back when she left

her business card.

Shannon agreed that she did not complete her services. Shannon was last

employed six months prior to trial but explained that Perpetual Help Home, the shelter

she moved into two weeks earlier, offers services to help residents find employment.6

Shannon testified that she passed two drug tests to be able to stay at Perpetual Help

Home. Shannon’s two oldest children, who previously resided with her grandparents,

moved into Perpetual Help Home with her. Shannon described Perpetual Help Home as

a group home setting for women and children, with each parent and child set having their

own private rooms with shared community spaces and bathrooms.

Shannon agreed that her drug use endangered Caleb and Chase but testified that

she last used methamphetamine in December 2022 after the children were removed and

approximately ten months before the trial commenced. Shannon acknowledged that she

only submitted to two drug tests for the Department but explained that she did not have

transportation to the drug testing sites the other times she was required to test. Shannon

also agreed she had not visited her children in almost five months, explaining that she

was not able to attend the visits at times but also did not want to attend because of

“personal problems.” Shannon stated she did not maintain contact with the Department

for four months leading up to trial because of “personal problems” and lack of a phone or

6 Shannon explained she previously stayed at Perpetual Help Home for five months in 2021 with

her three oldest children but did not complete the program.

4 transportation. Shannon also acknowledged being arrested for possession of stolen

goods two months before trial but explained that a friend had burglarized a home and left

the stolen property in Shannon’s home. Shannon said that she was unaware of the

burglary or that the property was stolen.

Yuvonda Bell testified that she is the resident manager at Perpetual Help Home,

where Shannon resided. Bell explained that the home helps residents “get whatever

documents they need, provide them a safe place for them and their children, [and]

connect them with any resource that is needed.” Perpetual Help Home also provides

anger management, parenting classes, and budgeting classes. Bell agreed that Shannon

took and passed two drug screens with Perpetual Help Home but disclosed that the

results were not lab verified.

Court Appointed Special Advocate Supervisor Darla Sanders testified that she is

the supervisor assigned to Caleb and Chase’s case. Sanders visited the children in their

current foster-to-adopt placement, which she described as “a loving home,” where the

foster parents “are just amazing working with [the children.]” According to Sanders, the

children are healthy, well-taken care of, and meeting all their milestones. Sanders

believed the children would thrive if they continued in their current placement, which was

a proposed adoptive home should the children become adoptable. Sanders

recommended terminating the parent-child relationship between Shannon and the

children because it was in their best interest.

The trial court terminated the parent-child relationship between Shannon and both

children, citing endangerment, constructive abandonment, and failing to complete the

5 service plan, as grounds. See id. § 161.001(b)(1)(D), (E), (N), and (O). This appeal

followed.

II. STANDARD OF REVIEW

“[I]nvoluntary termination of parental rights involves fundamental constitutional

rights” and divests the parent and children of all legal rights, privileges, duties and powers

normally existing between them, except for the children’s right to inherit from the parent.

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re L.J.N., 329 S.W.3d 667, 671 (Tex.

App.—Corpus Christi—Edinburg 2010, no pet.); see In re K.M.L., 443 S.W.3d 101, 121

(Tex. 2014) (Lehrmann, J., concurring) (“Termination of parental rights, the total and

irrevocable dissolution of the parent-child relationship, constitutes the ‘death penalty’ of

civil cases.”). Accordingly, “termination proceedings must be strictly scrutinized.” In re

K.M.L., 443 S.W.3d at 112. In such cases, due process requires application of the “clear

and convincing” standard of proof. Id. (first citing Santosky v. Kramer, 455 U.S. 960, 769

(1981); and then citing In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)). This intermediate

standard falls between the preponderance of the evidence standard of ordinary civil

proceedings and the reasonable doubt standard of criminal proceedings. In re G.M., 596

S.W.2d 846, 847 (Tex. 1980); In re L.J.N., 329 S.W.3d at 671. It is defined as the

“measure or degree of proof that will produce in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegations sought to be established.” TEX. FAM. CODE

ANN. § 101.007. A parent’s rights to their children may be terminated upon a showing by

clear and convincing evidence that (1) he or she engaged in certain acts or omissions

prescribed by statute, and (2) termination is in the children’s best interest. Id.

6 § 161.001(b).

When reviewing the factual sufficiency of the evidence supporting termination, we

ask “whether the evidence is such that a factfinder could reasonably form a firm belief or

conviction about the truth of the [Department]’s allegations.” In re C.H., 89 S.W.3d 17, 25

(Tex. 2002). In conducting this review, we consider whether the disputed evidence is such

that a reasonable finder of fact could not have resolved the disputed evidence in favor of

its finding. In re J.F.C., 96 S.W.3d at 266. “If, in light of 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.” Id.

Under the factual sufficiency standard, we defer to the trier of fact’s determinations

on the credibility of the witnesses “so long as those determinations are not themselves

unreasonable.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam); see In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam); see also In re C.H., 89 S.W.3d at

26 (“A standard that focuses on whether a reasonable jury could form a firm conviction or

belief retains the deference an appellate court must have for the factfinder’s role.”).

When reviewing the legal sufficiency of the evidence, we “should look at all the

evidence in the light most favorable to the finding to determine whether a reasonable trier

of fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C.,

96 S.W.3d at 266. We must assume “the factfinder resolved disputed facts in favor of its

finding if a reasonable factfinder could do so.” Id. Finally, we “should disregard all

evidence that a reasonable factfinder could have disbelieved or found to have been

7 incredible” while considering “undisputed facts that do not support the finding.” Id. If we

“determine[] that no reasonable factfinder could form a firm belief or conviction that the

matter that must be proven is true, then [we] must conclude that the evidence is legally

insufficient.” Id.

III. GROUNDS FOR TERMINATION

By her first issue, Shannon challenges the grounds for termination.

A. Applicable Law

While only one ground is necessary to support termination, when Subsections (D)

and (E) (the “endangerment grounds”) are found, we must review those grounds as a

matter of due process. In re J.W., 645 S.W.3d 726, 748 (Tex. 2022); see also TEX. FAM.

CODE ANN. § 161.001(b)(1)(M) (providing a ground for termination if a parent has had the

parent-child relationship to another child terminated under either Subsection (D) or (E)).

The “endangerment grounds” permit termination when a parent has “knowingly

placed or knowingly allowed the child[ren] to remain in conditions or surroundings which

endanger the physical or emotional well-being of the child[ren]” or “engaged in conduct

or knowingly placed the child[ren] with persons who engaged in conduct which endangers

the physical or emotional well-being of the child[ren].” TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D), (E). The primary difference between Subsection (D) and Subsection

(E) is that Subsection (D) focuses on the child’s conditions or surroundings while

Subsection (E) focuses on the parent’s or another’s conduct, whether by overt act or

omission. In re A.L.H., 624 S.W.3d 47, 55–56 (Tex. App.—El Paso 2021, no pet.).

However, the same evidence may support a finding under either subsection, depending

8 on the circumstances. Id. (providing the example of continued domestic violence in the

home with the children as grounds under both Subsection (D) and (E)). “[E]ndangerment

encompasses ‘more than a threat of metaphysical injury or the possible ill effects of a

less-than-ideal family environment.’” In re D.L.W.W., 617 S.W.3d 64, 78 (Tex. App.—

Houston [1st Dist.] 2020, no pet.) (quoting Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d

531, 533 (Tex. 1987)). “‘[E]ndanger’ means to expose to loss or injury; to jeopardize.” In

re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting Boyd, 727 S.W.2d at 533).

Under Subsection (D), “we must examine the time before the children’s removal to

determine whether the environment itself posed a danger to the [children’s] physical or

emotion well-being.” In re L.W., 609 S.W.3d 189, 199–200 (Tex. App.—Texarkana 2020,

no pet.) (quoting In re L.C., 145 S.W.3d 790, 795 (Tex. App.—Texarkana 2004, no pet.)).

“A parent acts ‘knowingly’ when the parent is aware that the environment creates a

potential danger to the child[ren] but the parent disregards that risk.” In re J.S., 675

S.W.3d 120, 128 (Tex. App.—Dallas 2023, no pet.).

Subsection (E) focuses on the parent’s conduct rather than the children’s

conditions; it requires more than a single act or omission, but rather a “voluntary,

deliberate, and conscious course of conduct by the parent.” In re A.L.H., 624 S.W.3d at

56 (citing In re K.A.C., 594 S.W.3d 364, 372 (Tex. App.—El Paso 2019, no pet.)). Under

Subsection (E), we may consider evidence of the parent’s conduct before the children’s

birth and after the children’s removal. Walker v. Tex. Dep’t of Fam. & Protective Servs.,

312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also In re

C.Y., No. 02-21-00261-CV, 2022 WL 500028, at *5–7 (Tex. App.—Fort Worth Feb. 18,

9 2022, pet. denied) (mem. op.) (considering parent’s failure to complete drug treatment,

failure to maintain stable housing and employment, failure to consistently attend visits,

failure to emotionally and financially support the child, and periodic arrests as

endangering to the child).

The children’s physical or emotional well-being is endangered when the parent

fails to remove them from a home in which abusive or violent conduct is occurring. In re

L.W., 609 S.W.3d at 200. Drug use may also create a dangerous environment for the

children. In re J.S., 675 S.W.3d at 128; In re L.W., 609 S.W.3d at 200.

[I]llegal drug use alone may not be sufficient to show endangerment, [but] a pattern of drug use accompanied by circumstances that indicate related dangers to the child[ren] can establish a substantial risk of harm. A reviewing court should not evaluate drug-use evidence in isolation; rather, it should consider additional evidence that a factfinder could reasonably credit that demonstrates that illegal drug use presents a risk to the parent’s “ability to parent.”

In re R.R.A., No. 22-0978, 2024 WL 1221674, at *7 (Tex. Mar. 22, 2024) (quoting In re

J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)).

B. Analysis

1. Subsection (D)

Shannon challenges the sufficiency of the evidence supporting Subsection (D),

arguing “the Department did not introduce evidence regarding the living conditions for the

child[ren] while in [Shannon]’s care.” Shannon also points to her testimony at trial that she

was ten months sober, residing in a “very stable living situation and very safe environment

for [the] children at Perpetual [Help] Home.” However, Subsection (D) requires us to look

at the children’s environment prior to removal, thus, Shannon’s testimony at trial, even if

taken as true, does not overcome the evidence related to the children’s environment 10 before removal. See In re L.W., 609 S.W.3d at 199–200. The undisputed evidence shows

that Shannon used methamphetamine and marijuana while pregnant with Chase. See In

re J.S., 675 S.W.3d at 128; In re L.W., 609 S.W.3d at 200. Indeed, Shannon agreed that

her drug use endangered her children. See In re J.S., 675 S.W.3d at 128.

Although Shannon’s argument does not differentiate between legal and factual

sufficiency, we nonetheless conclude the evidence is both legally and factually sufficient

to support termination under Subsection (D). See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D); In re J.F.C., 96 S.W.3d at 266–67.

2. Subsection (E)

Next, Shannon argues the evidence is insufficient to support termination under

Subsection (E) because the Department “failed to address [Shannon]’s conduct as a

parent outside her admitted prior drug use and her missed parent-child meetings.”

Shannon also points to the lack of evidence related to Shannon’s two oldest children that

began residing with her the month of trial. Additionally, Shannon points to the lack of

evidence that Shannon used drugs after the children’s removal. Lastly, Shannon argues

that the testimony that Chase was born drug-positive—including her own testimony—

cannot support termination because it was not provided by a medical expert or via medical

records.

We disagree that the Department did not present other evidence that would

support the trial court’s finding under Subsection (E). As noted, Shannon’s prior drug

use—dating back to 2011—was not merely drug use; she used drugs while pregnant.

See In re R.R.A., 2024 WL 1221674, at *7; see also In re E.P., No. 10-22-00086-CV,

11 2022 WL 2977479, at *2 (Tex. App.—Waco July 27, 2022, no pet.) (holding that drug use

while pregnant endangers the children and collecting cases). Further, Shannon’s failure

to take court-ordered drug tests for nine months leading up to trial permits a factfinder to

infer that she continued her drug use. See In re M.R., 243 S.W.3d 807, 818 (Tex. App.—

Fort Worth 2007, no pet.). As to the absence of evidence relating to her two older children,

the parent-child relationship between Shannon and those children was not terminated,

and the Department was thus not required to present evidence relating to those children.

Lastly, Shannon provides no authority that the Department needed to provide the medical

records or expert testimony showing that Chase was born drug-positive and we find none;

however, even if we were to discount her own testimony, Shannon admitted to

methamphetamine and marijuana use while pregnant, which exposed Chase to danger.

See In re R.R.A., 2024 WL 1221674, at *7; see also In re E.P., 2022 WL 2977479, at *2.

While Shannon again did not differentiate between legal and factual sufficiency,

we nonetheless conclude the evidence was legally and factually sufficient to support

termination under Subsection (E). See TEX. FAM. CODE ANN. § 161.001(b)(1)(E); In re

J.F.C., 96 S.W.3d at 266–67. Shannon’s first issue is overruled. 7

IV. BEST INTEREST

“The best-interest prong of the termination inquiry ‘is child-centered and focuses

7 Because we conclude the evidence is factually and legally sufficient to support termination under

Subsections (D) and (E), we do not need to review the sufficiency of the evidence under Subsections (N) and (O). See TEX. R. APP. P. 47.4 (“If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court’s decision and the basic reasons for it.”); In re J.W., 645 S.W.3d 726, 748 (Tex. 2022) (noting only one ground is necessary to uphold termination).

12 on the child’s well-being, safety, and development.’” In re J.W., 645 S.W.3d at 746

(quoting In re A.C., 560 S.W.3d 624, 631 (Tex. 2018)). The Supreme Court of Texas has

identified several nonexclusive factors for courts to consider in determining the child’s

best interest, known as the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371–

72 (Tex. 1976). These factors include: (1) the children’s desires; (2) the children’s present

and future emotional and physical needs; (3) the present and future emotional and

physical danger to the children; (4) the parenting abilities of the individuals seeking

custody; (5) the programs available to assist those individuals to promote the children’s

best interest; (6) the plans for the children by those individuals or by the agency seeking

custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or

omissions that may indicate the existing parent-child relationship is an improper one; and

(9) any excuse for the parent’s acts or omissions. Id. at 371–72. Evidence that is probative

of grounds for termination may also be probative of the best interest of the child. In re

C.H., 89 S.W.3d at 28. Not all factors must weigh in favor of termination, “particularly if

the evidence w[as] undisputed that the parental relationship endangered the safety of the

child.” Id. at 27.

The record contains no evidence regarding the children’s desires, although at ages

three and one, they were likely too young to express their wishes, and there is not a

sufficient proxy by which we could gauge their desires. See In re A.J.D.-J., 667 S.W.3d

813, 833 (Tex. App.—Houston [1st Dist.] 2023, no pet.) (“[T]he general rule is that when

a child is too young to express [them]self, [their] desires are neutral as to the trial court’s

13 best-interest finding, unless there is circumstantial evidence from which the factfinder

could infer [their] desires by proxy.”). Similarly, there was no evidence regarding any

special needs of the children beyond the natural needs of young children; thus, this factor

does not support termination.

However, the evidence otherwise supports several factors weighing in favor of a

finding that termination is in the children’s best interest, such as Shannon’s history of drug

use, Shannon’s failure to complete her service plan, Shannon’s lack of cooperation with

the Department, Shannon’s failure to visit the children, Shannon’s unstable living and

employment situations throughout the case, and the children’s current foster-to-adopt

placement being described as a “loving home” with foster parents who “are just amazing

[at] working with [the children].” See Holley, 544 S.W.2d at 371–72.

Although Shannon testified that she had not used drugs in ten months, the trial

court was able to infer that she continued some drug use by her failure to drug test for

ten months. See id.; In re M.R., 243 S.W.3d at 818. Similarly, Shannon failed to attend

visits with her children despite the Department transporting the children. See Holley, 544

S.W.2d at 371–72; see also In re A.V.G.-P. & A.O.G.-P., No. 10-23-00294-CV, 2024 WL

1327908, at *4 (Tex. App.—Waco Mar. 28, 2024, no pet. h.) (mem. op.) (“[A] parent’s

failure to regularly visit his children after removal may support a finding that termination

of the parent’s rights is in the children’s best interest.”). Despite evidence that two weeks

prior to trial Shannon voluntarily enrolled in Perpetual Help Home to seek assistance, she

otherwise failed to engage and complete the services provided to her through the

Department. See In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013) (holding that parent’s

14 failure to complete court-ordered services can support a best-interest finding).

Furthermore, the Department visited Shannon’s home several times, and Shannon would

not answer the door and did not communicate with the Department regarding these

proceedings.

Ultimately, while some factors may weigh neutrally or even against termination,

the evidence presented was both legally and factually sufficient to support finding that

termination was in the children’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2);

In re J.F.C., 96 S.W.3d 266–67; Holley, 544 S.W.2d at 371–72. Shannon’s second issue

is overruled.

V. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA Justice

Delivered and filed on the 25th day of April, 2024.