In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-21-00271-CV
IN THE INTEREST OF E.G., A CHILD
On Appeal from the County Court at Law No. 1 Randall County, Texas Trial Court No. 77,407-L1, Honorable James W. Anderson, Presiding
March 4, 2022 OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.
In this accelerated appeal, appellants, Mother and Father, appeal the judgment of
the trial court terminating their parental rights to E.G.1 The appellee is the Texas
Department of Family and Protective Services. Mother and Father contend the trial court
exceeded the scope of de novo review when it terminated their parental rights. Mother
also challenges the sufficiency of the evidence to support the trial court’s findings under
1 To protect the privacy of the parties involved, we refer to the mother of the child as “Mother,” the father of the child as “Father,” and the child by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). the predicate grounds, and the finding that termination is in the best interest of E.G. We
affirm the judgment of the trial court as to Mother and Father.
Background
On January 10, 2020, the Department removed E.G. from Mother’s care because
of mental health concerns. At the time of E.G.’s removal, Father had been incarcerated
in the Randall County jail since January 5, 2020. The Department obtained temporary
managing conservatorship, placed E.G. with her maternal aunt and uncle, and filed a
petition to terminate Mother’s and Father’s parental rights. The Department created
family service plans for Mother and Father setting out conditions for reunification,
including: psychological evaluation and participation in individual counseling; completion
of a drug assessment; engagement in any required drug treatment and submission to
random drug testing; completion of rational behavior therapy; participation in anger
control training; participation in therapeutic visitation; and demonstration of stable housing
and employment.
The associate judge conducted a bench trial on June 7, July 23, and August 25,
2021. The following evidence was presented at trial.
Mother and J.C. are the parents of three boys, aged twelve, seven, and five at
the time of trial. Mother and J.C. separated in May of 2016. Mother and Father began
living together in April of 2019. Mother and Father are the parents of E.G., who was born
in May of 2019. E.G. is the child subject of this appeal.
On January 9, 2020, Mother took seven-month-old E.G. and her three brothers
to Northwest Hospital for a sexual assault evaluation after she found the boys “playing 2 with each other with puppets and kind of touching and grabbing each other.” Mother
accused J.C. of sexually assaulting the boys. The boys were examined and nothing was
found to substantiate the sexual abuse allegations. Upon leaving the hospital, Mother
took the children to Trinity Fellowship Church in search of a sexual abuse advocate.
Rita Wilkinson, one of the pastors at the church, encountered Mother in the
children’s area of the church. According to Wilkinson, Mother was, yelling, “talking really
crazy,” and not making sense. She said her husband was Lucifer, and he was speaking
to her and telling her what to do. Wilkinson concluded that Mother was hearing voices.
Wilkinson testified that Mother was not stable. While Mother was talking, “she was very
agitated, very anxious, couldn’t give eye contact, couldn’t be still. Would snap at the
children.” Wilkinson observed that the two oldest boys appeared to be afraid of Mother.
Wilkinson observed Mother for an hour and “honestly felt like [she] was in danger when
[Mother] was talking to [her.]” Another pastor at the church, Jaret Warren, testified that
he spoke to Mother after childcare workers at the church found a sock inside E.G.’s diaper
covering her genitals. According to Warren, Mother claimed E.G. “was being chastised.”
Mother also stated she was afraid “[J.C.] was going to go back in time and kill Jesus.”
Mother testified that she kept a sock in E.G.’s diaper as an “armor of protection” from her
car seat buckle. Mother disputed the testimony that she told a church worker that she
had given birth to Satan’s children. Warren asked Mother if she was taking
antidepressant medication and Mother stated that she had been prescribed medication,
but she was not currently taking the medication. Warren described Mother’s behavior as
“erratic” and “frantic.” Warren was concerned for E.G.’s safety and contacted the
Department.
3 Around 9:30 p.m., Department investigator Dustin Pierce interviewed Mother at
her residence after she and the children had left the church. According to the investigator,
Mother was not coherent and was making strange comments.
A few hours later, Pierce was called back to Mother’s home by Amarillo Police
Officer Matthew Brush. Brush was investigating Mother’s report that her boys had been
kidnapped. However, Brush quickly determined that the boys were with J.C. According
to Brush, Mother was “acting very strangely.” She was pacing, talking to herself, and
saying random things, such as, “[T]hey just don’t listen. Y’all need to get him. They’re
listening to us.” Mother was holding E.G., but she was not supporting E.G.’s head. E.G.
was “just kind of flailing around.” Brush was concerned for the welfare of E.G. because
he did not feel like Mother could take care of herself, much less E.G. Brush testified that
Mother was engaging in conduct that could endanger E.G.’s emotional or physical well-
being. Brush arrested Mother for an outstanding traffic warrant and Pierce took
possession of E.G. Pierce asked Mother to give him the names of possible placements
for E.G., but Mother refused. Mother did admit to Pierce that she had a history of
postpartum depression and she had not taken any medication in several years.
On January 12, 2020, at 1:30 p.m., Officer Michael Cote was dispatched to
Mother’s home for an assault. As Cote approached Mother’s home, maternal
grandmother flagged him down. Cote observed that maternal grandmother was
“obviously distressed.” She told Cote that Mother had held her against her will and
assaulted her for several hours. According to Cote, maternal grandmother was hysterical,
crying, and complaining of pain in her chest. Maternal grandmother told officer Cote that
Mother had punched, kicked, and bitten her. During the assault, Mother grabbed a broken 4 piece of glass and carved a cross into maternal grandmother’s forehead. Cote also noted
that maternal grandmother had multiple bruises on her arms, bite marks across her chest
and arms, and hair missing from her forehead.
Mother testified she began arguing with maternal grandmother around 4:00 a.m.,
and that the argument turned into a physical altercation. Mother acknowledged hitting
maternal grandmother in the eye, which caused her eye to swell shut. Mother admitted
she “reached out with a piece of glass” which made a cross formation in the middle of
maternal grandmother’s forehead. Mother also admitted to biting maternal grandmother
multiple times on her breast. Mother testified that she was in a “hyper[-]religious state” at
the time of the assault. Mother further admitted she urinated on maternal grandmother
after the assault. Mother claimed that she received injuries in the attack, but she did not
seek treatment for any injuries.
Mother was arrested and incarcerated in the Randall County Jail. She was
indicted for the third-degree felony offense of assault of a family member by impeding
breath or circulation. Mother was deemed incompetent to stand trial and was transferred
to the state hospital for evaluation and treatment for psychosis, depression, and suicidal
ideation. During her stay at the state hospital, Mother was diagnosed with post-traumatic
stress disorder and depression. She was prescribed Lamictal, a mood stabilizer, and
Effexor for her depression. Later, Mother was prescribed Wellbutrin for depression and
BuSpar for her anxiety. Mother was released from the state hospital after three months
and was discharged to the Randall County Jail. In August of 2020, Mother pled guilty to
the felony assault charges and was placed on five years’ deferred adjudication probation.
5 At the time E.G. was removed, Father was incarcerated in the Randall County
Jail for violations of his federal parole. Father told the caseworker he had used
methamphetamine for many years and he had used methamphetamine recently. He also
said he had used methamphetamine with Mother.
Father’s criminal history dated back to 2005 and included a conviction for the
offense of conspiring to possess, with intent to distribute, 100 kilograms or more of
marijuana for which he received a sentence of five years in federal prison and five years
of supervised release. Father admitted to using and possessing methamphetamine while
on parole resulting in his confinement in 2012 for ten months and in 2015 for twenty-one
months. In August of 2019, he was arrested for possession and using methamphetamine
and marijuana. Father was then incarcerated for violating his federal supervision from
January 5, until October of 2020.
After Father was released from jail in October of 2020, he resumed his
relationship with Mother. He completed most of the requirements of his service plan after
he was released from jail; however, he did not maintain sobriety. Father relapsed in
January of 2021 and used methamphetamine for “a week or two.” Father tested positive
for methamphetamine in January, February, and May of 2021. Father has a long history
of drug abuse and he has relapsed four times in the last ten years. Father did not seek
drug treatment during the pendency of this case, and he is not participating in a twelve-
step program. The caseworker told Mother separately, and Mother and Father together,
that Father could not be a caretaker for E.G. and that his drug use could affect Mother’s
reunification with E.G.
6 In August of 2020, after she was released from jail, Mother began to work the
services in her family plan of service. One of Mother’s service providers was DeLois
Hinders, a licensed professional counselor. Hinders provided individual counseling to
Mother and supervised therapeutic visitation between E.G. and Mother and Father.
Hinders testified the Department became involved with Mother after a psychotic
episode. According to Hinders, “[Mother] had become hyper[-]religious, that there was
some paranoia about sexual abuse of [E.G.]. She was behaving in some strange ways.
She had a violent altercation with her mother, and that was–there were many kinds of
confusing hallucinatory experiences she was having at the time.” Mother told Hinders
she was acting in self-defense and anger when she assaulted maternal grandmother, and
she continues to have angry feelings toward maternal grandmother. Hinders opined a
psychotic episode can have violent tendencies towards others and it would be concerning
if it occurred around a child.
Hinders recounted the events that precipitated Mother’s “psychotic break” in
January of 2020: Mother and Father’s relationship was deteriorating; Father had been
arrested and there had been a separation; Mother was caring for a newborn and three
other children; she was on call at work; she was not sleeping well; she quit or lost her job;
and she was not making her mortgage payment. Hinders diagnosed Mother with
unspecified depressive disorder and unspecified personality disorder. Hinders does not
know how long Mother was psychotic before the January 2020 episode. According to
Hinders, Mother had struggled with anxiety and depression off and on since her teenage
years. Hinders did not obtain any information from family members concerning Mother’s
mental health history and relied only on what Mother reported. Hinders was unaware of 7 Mother’s history of attempted suicide after J.C. and Mother separated in 2016.
Hinders’s current recommendations are that Mother remain compliant with her
psychiatric treatment and medications prescribed by her psychiatrist, and that she
continue individual counseling. Hinders noted that Mother reported a history of marijuana
use and she was not compliant with the portion of her treatment plan for her recovery for
her substance abuse because she continued to be around Father who was a known
substance abuser. Hinders’s main concern is Mother’s ability to be independent of her
relationship with Father and her ability to take care of herself and protect E.G. in the event
Father relapsed. Hinders recommended that Mother rent a place in her own name and
put some distance between herself and Father after he was released from prison.
Instead, Mother and Father continued to live together after his release and after he
relapsed in January of 2021.
During the time Hinders spent with Mother, she did not see anything in the
sessions that suggested Mother would be a danger to E.G. or to anyone. The therapeutic
visits are going well, and Mother actively participates in the visits. In the beginning, E.G.
had separation anxiety and it “flared up” throughout May and June of 2021. According to
Hinders, Mother and E.G. have bonded, particularly in the last three sessions.
Maternal aunt and uncle filed an intervention seeking managing conservatorship
of E.G. Maternal aunt testified that Mother exhibited behavior growing up where she
randomly talked to people who were not present. She “was always angry, aggressive,
she was physically abusive, mentally abusive, verbally abusive. She would also attack
anything.” Maternal aunt observed Mother talking to walls at various times. According to
8 maternal aunt, Mother had been prescribed several medications for her mental health.
However, Mother refused to take the medications as prescribed. “[Mother] would wean
herself off when she wanted because she would think she was better, and then she would
self-medicate.” Further, she has observed medications in Mother’s home that were
prescribed to others which she alleges Mother stole from facilities where she worked.
Maternal aunt and uncle decided to seek custody of E.G. after a permanency hearing
where Mother “came off very hostile and aggressive towards any comments or questions
to be asked or answered. And it was continuous. She couldn’t stop and she just kept
going.”
Mother was diagnosed with depression and anxiety in nursing school, and she has
a history of PTSD related to sexual abuse. Mother testified that she had previously been
prescribed Xanax. She denied abusing prescription drugs, stating that she always took
her medication as prescribed. However, she also testified that she has been prescribed
antidepressants and antianxiety medication throughout her adult life and stopped taking
the medication “because I don’t want to take it.” Mother admitted that, in the months
before her “psychotic break,” she had stopped taking Xanax and was self-medicating with
marijuana and alcohol because “it helped her cope with pain and anxiety.” She testified
she was currently under the care of a psychiatrist in Plainview, and she is compliant with
her prescribed medication.
Mother has known Father since the summer of 2018, and they have lived together
“off and on” since April of 2019. E.G. was born in May of 2019. In September of 2019,
when Father was arrested for possession of methamphetamine, Mother “kicked him out
of the house” but she claims she was not privy to the details of his arrest. She was only 9 told that it was a probation violation. Mother was aware Father had issues with substance
abuse but denied she was aware of him using after E.G. was born. Mother admitted she
used marijuana with Father in the past. The last time she used marijuana was before she
was arrested in January of 2020.
Mother’s house was foreclosed while she was incarcerated. After she was
released from jail, she moved to Friona and lived with the paternal grandmother until
Father was released from prison in October of 2020. Mother and Father broke up
intermittently after he was released from prison due to the “stress of the CPS and the
court proceedings.”2 They have resided in their current residence in Hereford since
January of 2021. They do not have a lease, but they plan to negotiate a rent-to-own
arrangement. After Father relapsed in January, he stayed with some of his friends “for
about a month.” When he got a clean urinalysis in February, he moved back into the
home with Mother.
Mother and Father have set up a bedroom with a television for E.G. Mother’s
therapeutic visitation with E.G. is going well and she continues to have supervised
visitation with her three sons.
Mother has been an R.N. since 2004. She is currently employed by Country View
Living making $30 to $32 an hour. Mother’s work hours vary, but she typically works
three days a week from 6:00 p.m. to 6:00 a.m. Mother testified that paternal grandmother
would keep E.G. at night because Father also works nights. Mother has “looked into”
2 Father’s family plan of service required that he participate in anger control training due to his reports of domestic disputes between him and Mother.
10 calling daycares for E.G., and she has inquired about changing her work schedule from
the night shift to the day shift. Mother denied telling anyone that Father would be keeping
E.G. while she was at work. Mother has a backup sitter but cannot remember her name.
According to the caseworker, in May or June of 2021, Mother and Father told her
that the plan going forward was that Father would be the primary caregiver for E.G.
because Mother would work nights. The caseworker told Mother and Father that the
Department objected to Father providing primary care for E.G. The caseworker strongly
encouraged Mother to obtain her own housing separate and apart from Father due to
Father’s substance abuse and the history of the relationship between Mother and Father.
The Department’s major concern remains Mother’s mental health stability. The
caseworker testified there has been no resolution to her mental health issues and Hinders
has not released Mother from her individual counseling. The caseworker opined that
Mother was unable to care for the emotional and physical needs of E.G. now and in the
future. A drug relapse that happened in the home could affect the stability of the home
and pose an emotional and physical danger to E.G. The caseworker testified that it was
in E.G.’s best interest that Mother’s parental rights be terminated based on Mother’s
continued relationship with Father, Father’s drug abuse history, Mother’s willingness to
leave E.G. in Father’s care, and Mother’s failure to work toward some of the goals
recommended by Hinders for her to be independent of a relationship with Father. She
further testified that it is in E.G.’s best interest that Father’s parental rights be terminated
based upon his history of methamphetamine use, his relapse in January of 2021, and his
recent positive hair strand test for methamphetamine.
11 E.G. is placed with a maternal aunt and uncle who have intervened in the
proceedings seeking managing conservatorship of E.G. E.G. is doing “very well” in this
placement. All of E.G.’s needs are being met, including her medical, dental, and
psychological needs. The Intervenors have become a licensed foster home since E.G.
was placed with them. They have arranged for E.G. to visit with her brothers two to three
times a month. E.G. is “extremely excited” to return to the placement after visits. The
caseworker testified that it was in E.G.’s best interest to remain in her current placement.
If parental rights are terminated, the Intervenors plan to adopt E.G.
On September 2, 2021, the associate judge emailed his ruling ordering a
monitored return of E.G. to Mother. That same day, Intervenors filed a request for de
novo hearing. On September 7, 2021, the associate judge signed an order on monitored
return that specified that Mother’s unsupervised possession of E.G. would not begin until
Father moved to a residence separate from Mother, that Father would have supervised
visits at the Department, and he would have no contact with the child while Mother had
possession of E.G. Intervenors filed objections to this order.
In October of 2021, the Honorable James W. Anderson granted Intervenors’
request for a de novo hearing and considered the entire record from the prior hearings.
The trial court terminated Mother’s parental rights to E.G. on the grounds of endangering
conditions and endangerment. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E).3 The
trial court also found that termination was in the best interest of E.G. See § 161.001(b)(2).
3 Further references to provisions of the Texas Family Code will be by reference to “section ___” or “§ ___.”
12 The trial court terminated Father’s parental rights to E.G. on the grounds of endangerment
and failure to comply with a court order that established actions necessary to obtain return
of the child. See § 161.001(b)(1)(E), (O). The trial court also found that termination was
in the best interest of E.G. See § 161.001(b)(2). The Department was appointed the
permanent managing conservator of E.G.
Mother and Father timely appealed the resulting judgment. On appeal, Mother
and Father contend the trial court erred in exceeding the scope of review of the de novo
hearing. Mother also challenges the sufficiency of the evidence to support the trial court’s
findings under the predicate grounds, and the finding that termination is in the best interest
of E.G.
Standard of Review
When reviewing the legal sufficiency of the evidence in a termination case, the
appellate court should look at all the evidence in the light most favorable to the trial court’s
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 256, 266 (Tex. 2002). To
give appropriate deference to the factfinder’s conclusions, we must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do
so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or
found to have been not credible, but we do not disregard undisputed facts. Id. Even
evidence that does more than raise surmise or suspicion is not sufficient unless that
evidence can produce a firm belief or conviction that the allegation is true. In re K.M.L.,
443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we
13 determine that no reasonable factfinder could have formed a firm belief or conviction that
the matter that must be proven was true, then the evidence is legally insufficient, and we
must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).
In a factual sufficiency review, we must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96
S.W.3d at 266. We must determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.
Id. We must also consider whether disputed evidence is such that a reasonable factfinder
could not have resolved the disputed evidence in favor of its finding. Id. If, considering
the entire record, the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, then the evidence is factually insufficient. Id.
Applicable Law
A parent’s right to the “companionship, care, custody, and management” of his or
her child is a constitutional interest “far more precious than any property right.” Santosky
v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re
M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural
parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to
accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)
(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may
14 forfeit his or her parental rights by his or her acts or omissions, the primary focus of a
termination suit is protection of the child’s best interests. See id.
In a case to terminate parental rights under section 161.001 of the Family Code,
the petitioner must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination, and
(2) termination is in the best interest of the child. § 161.001(b). Clear and convincing
evidence is “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.”
§ 101.007; In re J.F.C., 96 S.W.3d at 264. Both elements must be established and
termination may not be based solely on the best interest of the child as determined by the
trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re
K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). “Only one
predicate finding under section 161.001[(b)](1) is necessary to support a judgment of
termination when there is also a finding that termination is in the child’s best interest.” In
re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both
legally and factually sufficient to support any alleged statutory ground the trial court relied
upon in terminating the parental rights if the evidence also establishes that termination is
in the child’s best interest. In re K.C.B., 280 S.W.3d at 894-95.
The clear and convincing evidence standard does not mean the evidence must
negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,
902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall
that the trier of fact has the authority to weigh the evidence, draw reasonable inferences
therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the 15 right to resolve credibility issues and conflicts within the evidence and may freely choose
to believe all, part, or none of the testimony espoused by any witness. Id. Where
conflicting evidence is present, the factfinder’s determination on such matters is generally
regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no
writ).
The appellate court cannot weigh witness credibility issues that depend on
demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,
the appellate court must defer to the factfinder’s determinations, if those determinations
are not themselves unreasonable. Id.
A determination of best interest necessitates a focus on the child, not the parent.
In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts
examine the entire record to decide what is in the best interest of the child. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s
best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006).
In assessing whether termination is in a child’s best interest, the courts are guided
by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.
1976). These factors include: (1) the desires of the child, (2) the emotional and physical
needs of the child now and in the future, (3) the emotional and physical danger to the child
now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the child, (6)
16 the plans for the child by these individuals or by the agency seeking custody, (7) the
stability of the home or proposed placement, (8) the acts or omissions of the parent that
may indicate that the existing parent-child relationship is not proper, and (9) any excuse
for the acts or omissions of the parent. Id. “[T]he State need not prove all of the factors
as a condition precedent to parental termination, ‘particularly if the evidence were
undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,
95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re
C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory
grounds for termination may also constitute evidence illustrating that termination is in the
child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may
consider circumstantial evidence, subjective factors, and the totality of the evidence as
well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,
no pet.). We must also bear in mind that a child’s need for permanence through the
establishment of a stable, permanent home has been recognized as the paramount
consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.
App.—Dallas 2007, no pet.).
Analysis
De Novo Review
In Father’s sole issue and Mother’s first issue, they contend the trial court erred by
exceeding the scope of de novo review requested by Intervenors. Father and Mother
argue Intervenors did not plead for a de novo determination concerning termination of the
parent-child relationship between Mother and Father and only asked for a de novo
17 hearing clarifying the terms of the monitored return. They also say the referring judge
went beyond a de novo review of the order for monitored return and sua sponte conducted
a new trial. We disagree.
The record reflects that Intervenors sought two forms of relief in the court below
following the associate judge’s ruling of September 2, 2021, granting a monitored return.
First, on September 2, Intervenors timely filed a request for a de novo hearing. See
§ 201.015(a) (“[a] party may request a de novo hearing before the referring court by filing
with the clerk of the referring court a written request not later than the third working day
after the date the party receives notice of the substance of the associate judge’s [ruling
or order].”). In their written request for de novo hearing, Intervenors sought a de novo
hearing to include: (1) the Department remaining managing conservator; (2) Mother
having a monitored return; (3) termination of parental rights of Mother and Father; (4)
adoption by Intervenors; and (5) naming Intervenors managing conservators. See
§ 201.015(b) (a request for de novo hearing must specify the issues that will be presented
to the referring court); In re L.R., 324 S.W.3d 885, 890 n.5 (Tex. App.—Austin 2010, orig.
proceeding) (“[T]he de novo hearing before the referring court is limited to those issues
raised in the hearing request.”). Second, on September 8, Intervenors filed an “objection
to order for monitored return” in response to a proposed order for monitored return.
At the outset of the de novo hearing on October 1, 2021, Intervenors’ counsel
requested the court to consider the issues outlined in their request for de novo hearing.
Because the Intervenors’ request was timely filed and specifically identified the issues to
be presented, we conclude that the issue of termination of parental rights was properly
before the referring court. We reject Father’s and Mother’s contention that the trial court 18 exceeded the scope of de novo review. Accordingly, we overrule Father’s sole issue4
and Mother’s first issue.
Sufficiency of the Evidence under Section 161.001(b)(1)(D) and (E)
In her second issue, Mother challenges the legal and factual sufficiency of the
evidence to support the termination of her parental rights under subsections
161.001(b)(1)(D) and (E). Ordinarily, only one statutory predicate ground is required to
support termination when there is also a finding that termination is in the child’s best
interest. In re A.V., 113 S.W.3d at 362. However, in light of the Texas Supreme Court
opinion in In re N.G., we review the trial court’s findings under both subsections (D) and
(E) when raised on appeal because of the potential consequences to Mother’s parental
rights in a future proceeding concerning a different child. In re N.G., 577 S.W.3d 230,
235-37 (Tex. 2019) (per curiam).
A trial court may order termination of a parent-child relationship if the court finds
by clear and convincing evidence that a parent has knowingly placed or knowingly
allowed a child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child and/or engaged in conduct or knowingly placed the
child with persons who engaged in conduct which endangers the physical or emotional
well-being of the child. See § 161.001(b)(1)(D), (E). Both subsections (D) and (E)
require proof of endangerment. To “endanger” means to expose the child to loss or
injury or to jeopardize the child’s emotional or physical health. Boyd, 727 S.W.2d at
4 Father does not challenge the sufficiency of the evidence to support the grounds for termination or the best interest finding.
19 533. A child is endangered when the environment creates a potential for danger that
the parent is aware of but consciously disregards. J.S. v. Tex. Dep’t of Family &
Protective Servs., 511 S.W.3d 145, 159 (Tex. App.—El Paso 2014, no pet.). Endanger
means more than a threat of metaphysical injury or the possible ill effects of a less-
than-ideal family environment, but it is not necessary that the conduct be directed at
the child or that the child suffer injury. In re N.K., 399 S.W.3d 322, 330-31 (Tex. App.—
Amarillo 2013, no pet.).
While both subsections (D) and (E) focus on endangerment, they differ regarding
the source of the physical or emotional endangerment to the child. See In re B.S.T.,
977 S.W.2d 481, 484 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Subsection
(D) requires a showing that the environment in which the child is placed endangered
the child’s physical or emotional health. Doyle v. Tex. Dep’t of Protective & Regulatory
Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet. denied). Conduct of a
parent or another person in the home can create an environment that endangers the
physical and emotional well-being of a child as required for termination under
subsection (D). In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no
pet.). Inappropriate, abusive, or unlawful conduct by persons who live in the child’s
home or with whom the child is compelled to associate on a regular basis in his home
is a part of the “conditions or surroundings” of the child’s home under subsection (D).
In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on
reh’g). The factfinder may infer from past conduct endangering the child’s well-being
that similar conduct will recur if the child is returned to the parent. Id. Thus, subsection
20 (D) addresses the child’s surroundings and environment rather than parental
misconduct, which is the subject of subsection (E). Doyle, 16 S.W.3d at 394.
Under subsection (E), the cause of the danger to the child must be the parent’s
conduct alone, as evidenced not only by the parent’s actions, but also by the parent’s
omission or failure to act. In re M.J.M.L., 31 S.W.3d 347, 350-51 (Tex. App.—San Antonio
2000, pet. denied); Doyle, 16 S.W.3d at 395. To be relevant, the conduct does not have
to have been directed at the child, nor must actual harm result to the child from the
conduct. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex.
App.—Dallas 1995, no writ). Additionally, termination under subsection (E) must be
based on more than a single act or omission; a voluntary, deliberate, and conscious
course of conduct by the parent is required. In re E.P.C., 381 S.W.3d 670, 683 (Tex.
App.—Fort Worth 2012, no pet.). The specific danger to the child’s well-being need not
be established as an independent proposition but may be inferred from parental
misconduct. In re B.C.S., 479 S.W.3d at 926. “[A] parent’s use of narcotics and its effect
on his or her ability to parent may qualify as an endangering course of conduct.” In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Because the evidence pertaining to
subsections 161.001(b)(1)(D) and (E) is interrelated, we may conduct a consolidated
review. In re M.R.J.M., 280 S.W.3d at 503.
A parent’s mental state may be considered in determining whether a child is
endangered if that mental state allows the parent to engage in conduct that jeopardizes
the physical or emotional well-being of the child. In re R.W., 129 S.W.3d 732, 739 (Tex.
App.—Fort Worth 2004, pet. denied). Suicidal ideation may also contribute to a finding
that a parent engaged in endangering conduct. Id. 21 Here, the evidence demonstrates that Mother had a history of depression and
anxiety since high school. Mother had been prescribed medication to help control the
symptoms of her depression and anxiety, but she refused to take advantage of these
remedies. Instead, Mother would wean herself off the medication and resort to self-
medicating with alcohol and marijuana to alleviate her symptoms. In May of 2016, after
separation from J.C., Mother attempted suicide by taking ten Xanax tablets and drinking
an eighteen pack of beer. Mother admitted to the investigator in January of 2020 that she
was suffering from postpartum depression, but she had recently stopped taking her
medication. Mother’s mental instability was such that at that time, she experienced erratic
behavior, auditory and visual hallucinations, hyper-religious thoughts, and paranoia.
During a psychotic episode a few days later, she brutally assaulted maternal
grandmother. Mother was deemed incompetent to stand trial and received medical
intervention at the state hospital. After her discharge, she received ongoing treatment by
a psychiatrist. Moreover, Mother has not taken the necessary steps to protect her sobriety
or remedy the instability of the home as she remains in a relationship with Father who
has a history of substance abuse and incarceration. The trial court could have reasonably
inferred that Mother would continue her pattern and practice of providing an unstable and
abusive home for E.G. that has the potential to compromise her emotional and physical
well-being. See In re N.M.L., No. 07-17-00310-CV, 2018 Tex. App. LEXIS 607, at *14
(Tex. App.—Amarillo Jan. 19, 2018, pet. denied) (mem. op.) (physical violence in the
home leads to an unstable and unpredictable environment for child). While mental
incompetence or mental illness alone are not grounds for termination of the parent-child
relationship, “[w]hen a parent’s mental state allows the parent to engage in conduct that
22 endangers the physical or emotional well-being of the child, that conduct has bearing on
the advisability of terminating the parent’s rights.” In re P.W., 579 S.W.3d 713, 727 (Tex.
App.—Houston [14th Dist.] 2019, no pet.).
The evidence showed that before and after E.G.’s birth, Mother did not take the
medication that was prescribed for her depression and anxiety. The trial court could have
concluded that Mother’s failure to take the medication after E.G.’s birth endangered E.G.’s
well-being. See In re K.G., 350 S.W.3d 338, 355 (Tex. App.—Fort Worth 2011, pet.
denied) (“[T]he trial court could have chosen to believe that Mother’s . . . failure to . . . take
steps to treat her mental health issues demonstrated an inability to provide [the child] with
a safe environment.”).
The trial court also heard evidence of Father’s drug conviction and parole
violations, his use of methamphetamine before and after E.G.’s birth, his use of
methamphetamine with Mother, Mother’s admission that she and Father used marijuana,
his admission to using methamphetamine during the time he lived with E.G. and Mother,
and his relapse shortly before trial. The trial court could have concluded that Mother’s
ongoing relationship with Father jeopardized her substance abuse recovery, and posed a
risk to E.G.’s emotional and physical well-being. “[A] parent’s decision to leave a child in
the care of a known drug user is relevant to the predicate acts or omissions outlined in
subsections (D) and (E).” In re J.J., No. 07-13-00117-CV, 2013 Tex. App. LEXIS 11194,
at *12 (Tex. App.—Amarillo Aug. 29, 2013, no pet.) (mem. op.). The evidence that a
parent allowed a child to be around persons using drugs can support the conclusion that
the child’s surroundings endanger her physical or emotional well-being under subsection
(D) and can qualify as a voluntary, deliberate, and conscious course of conduct 23 endangering the child’s well-being under subsection (E). See In re C.V.L., 591 S.W.3d
734, 751 (Tex. App.—Dallas 2019, pet. denied).
Having examined the entire record, we find that the trial court could reasonably
form a firm belief or conviction that Mother knowingly placed or knowingly allowed E.G.
to remain in conditions or surroundings which endangered her physical or emotional well-
being and engaged in conduct or knowingly placed E.G. with persons who engaged in
conduct which endangered E.G.’s emotional and physical well-being. The same evidence
is factually sufficient to support the trial court’s affirmative finding. We overrule issue two.
Best Interest
In her remaining issue, Mother challenges the factual and legal sufficiency of the
evidence to support the best interest finding made under section 161.001(b)(2).
We begin our analysis of E.G.’s best interest having just concluded that there was
legally and factually sufficient evidence presented to support the trial court’s findings
under section 161.001(b)(1)(D) and (E). The evidence submitted to prove the statutory
predicate grounds for termination outlined above is probative that termination is in the
best interest of E.G. In re E.C.R., 402 S.W.3d at 249; In re C.H., 89 S.W.3d at 28.
The trial court’s determinations that Mother knowingly placed or allowed E.G. to
remain in conditions or surroundings which endangered her physical or emotional well-
being, and engaged in conduct or knowingly placed E.G. with persons who engaged in
conduct which endangered E.G.’s physical or emotional well-being supports the
proposition that termination is in E.G.’s best interest under the second and third Holley
factors. Id. Mother’s untreated mental health issues gave way to behavior that resulted 24 in E.G.’s removal and constituted conduct that endangered E.G.’s physical and emotional
well-being. In re M.P., No. 02-14-00032-CV, 2014 Tex. App. LEXIS 8689, at *54-55 (Tex.
App.—Fort Worth Aug. 7, 2014 no pet.) (mem. op.) (per curiam) (a parent’s failure to take
medication as prescribed can expose a child to endangerment of her emotional or
physical well-being). Moreover, Mother’s decision to continue her relationship with
Father, who had a significant substance abuse and relapse history and numerous
incarcerations, subjects E.G. to a life of uncertainty and instability that further endangers
her physical and emotional well-being.
Stability and permanence are paramount in the upbringing of children. In re J.D.,
436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The factfinder may
compare the parent’s and the Department’s plans for the child and determine whether the
plans and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.
The trial court had before it evidence reflecting the precarious nature of Mother and
Father’s relationship. Mother met Father after he was paroled for a federal drug offense
in 2018. Father violated his parole several times by using methamphetamine and he was
sentenced to prison multiple times. In August of 2019, Father was living with Mother and
E.G. when he was arrested for violation of his parole by using and possessing marijuana
and methamphetamine. When Father completed his latest prison term in October of
2020, Mother and Father resumed their relationship, but they separated several times due
to the stress of the underlying proceedings. In January, February, and May of 2021,
Father relapsed and submitted hair follicle drug screens that were positive for
methamphetamine. The trial court also heard evidence that Father had relapsed four
times in the span of ten years. Hinders testified that Mother was not compliant with the
25 substance abuse recovery portion of her treatment plan because she continued to have
a relationship with Father and heavily relied on him as a support system. Hinders also
recommended that Mother continue with her individual counseling, but Mother’s last
session was in April of 2021. Significantly, Mother failed to articulate a plan for her mental
health treatment going forward.
We do acknowledge the testimony that therapeutic visitation was going well and
that Mother and E.G. had bonded during the last three visitations. Mother testified that
she was employed, had furnished E.G.’s room, and was checking daycare options for
E.G.
Conversely, the Intervenors are providing a drug-free environment and the stability,
structure, security, and consistency that E.G. needs. E.G. has been living with the
Intervenors for seventeen months. The evidence shows that E.G. is strongly bonded with
her foster family and they desire to adopt her. According to the caseworker, E.G. is
thriving in the home and she is well cared for in this placement. When children are too
young to express their desires, the factfinder may consider whether the children have
bonded with the foster family, and are well-cared for by them. In re S.R., 452 S.W.3d
351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Further, the Department’s
plan for E.G.’s adoption provides permanence and stability for E.G. and weighs heavily in
favor of the trial court’s conclusion that termination of Mother’s parental rights is in the
best interest of E.G.
We conclude the evidence is legally and factually sufficient to establish a firm
conviction in the mind of the trial court that termination of Mother’s parental rights is in the
26 best interest of E.G. We overrule Mother’s third issue challenging the best interest
determination.
We affirm the trial court’s order terminating Mother’s parental rights to E.G.
Conclusion
Having overruled Father’s sole issue and Mother’s three issues, we affirm the
judgment of the trial court terminating Mother’s and Father’s parental rights.
Judy C. Parker Justice