In the Interest of J.D., J.D., E.R., M.R., and G.R., Children v. the State of Texas

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00404-CV ___________________________

IN THE INTEREST OF J.D., J.D., E.R., M.R., AND G.R., CHILDREN

On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231-731916-23

Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION

I. Introduction

This is an ultra-accelerated appeal1 in which Appellant L.R. (Mother) appeals the

termination of her parental rights to three of her children—E.R. (Eric),2 M.R.

(Matthew), and G.R. a/k/a G.B. (Gwen)—following a two-day bench trial.3 Mother

also appeals the findings in the order stating that Mother should not be appointed as

possessory conservator of two of her children—J.D. (Jennifer) and J.D. (Jane)—for

whom the Department did not terminate Mother’s parental rights.4 The trial court

found by clear and convincing evidence that Mother had (1) knowingly placed or

knowingly allowed Eric, Matthew, and Gwen to remain in conditions or surroundings

that had endangered their physical or emotional well-being; (2) engaged in conduct or

knowingly placed Eric, Matthew, and Gwen with persons who had engaged in conduct

that had endangered their physical or emotional well-being; and (3) failed to comply

1 See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal from a judgment terminating parental rights, so far as reasonably possible, within 180 days after notice of appeal is filed). 2 See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in an appeal from a judgment terminating parental rights). 3 The trial began on July 15, 2024. It resumed on August 22, 2024, and concluded on that date. Whenever necessary to show the timing of the most recent testimony, we describe it as being given during the “August trial.” 4 Although the Department removed Jennifer and Jane with the other three children, it announced at trial that it was not seeking termination of Mother’s parental rights to Jennifer and Jane.

2 with her court-ordered service plan. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E),

(O). The trial court also found that termination of the parent–child relationship

between Mother and Eric, Matthew, and Gwen was in their best interest.5 See id.

§ 161.001(b)(2). The trial court further found that appointing Mother as Jennifer’s and

Jane’s possessory conservator would not be in their best interest and that unsupervised

possession or access by Mother would endanger their physical or emotional welfare.

In four issues, Mother challenges whether sufficient evidence supports the

endangerment and best-interest findings and whether the trial court abused its

discretion by not appointing her as possessory conservator of Jennifer and Jane.

Because sufficient evidence supports the endangering-conduct finding, the best-interest

finding, and the conservatorship finding, we affirm.

II. Background

A. Overview

Mother has nine children. In addition to the five children listed above, Mother

had a son I.R. (Izzy),6 a daughter L.D. (Lizzy), and a daughter T.D. (Tiffany) who were

5 The termination order also terminated the parental rights of J.D., who is described in the order as the alleged father of Jane, Eric, and Matthew; the acknowledged father of Jennifer; and the adjudicated father of Gwen. For ease of reference, we refer to J.D. as Father. He did not appeal. 6 While the case was pending, Izzy was removed from Mother because she was unable to meet his needs. The Department became Izzy’s permanent managing conservator when he was seventeen years old; he was eighteen at the time of the trial, so he was no longer in extended care and was living with Mother.

3 not part of this case. A few months before this case went to trial, Mother gave birth to

another daughter, D.J. (Destiny). The record demonstrates that Mother had a lengthy

history with the Department that included domestic violence, as well as medical neglect

and neglectful supervision of her children.

B. CPS History

At trial, Mother agreed that her first investigation by Child Protective

Investigations (CPI) was opened in June 2008 because she had left the hospital against

medical advice after taking Izzy there with a spiral fracture to his left arm. Mother also

agreed that Father had caused Izzy’s fracture. Mother received a reason-to-believe

disposition for medical neglect.

Mother acknowledged that her first Family-Based Safety Services (FBSS)7 case

was from August 2008 to mid-February 2009 and that she had completed various

services and had agreed not to allow Father to have unsupervised contact with Izzy or

other children until Father had completed his services.

Five months after the FBSS case closed, Mother came under investigation

because of domestic violence by Father. Mother agreed (1) that during that

investigation, she was provided an apartment by Open Arms because she was a

domestic-violence survivor and (2) that she, along with her three children at that time,

7 One of the Department’s employees explained that FBSS is “basically a stage of service that is open towards the end of an investigation where CPI refers the family for them to receive ongoing services once the investigation closes out.”

4 had left that apartment and had returned to Father. Mother admitted that her children

were removed in July 2009, that she had completed all of her services, and that her

children were returned to her in 2011.

Mother said that things went well from 2011 to 2014 because she had stable

housing, was working, and was going to school and because the children were going to

school.

Mother came under investigation again in 2014 because a man named Demetrius

Brown had grabbed her around the neck. Mother also admitted that she had reengaged

with Father and that he had hit her in the eye while some of the children were present.

Mother agreed that she had worked all the services on her second FBSS case

between December 2016 and May 2017.

Mother did not recall receiving a reason-to-believe disposition for medical

neglect in November 2018 to January 2019 for refusing to seek adequate medical

attention for a seven year old who was exhibiting extreme behavioral issues that were a

danger to the child and to other people. Nor did she remember receiving a reason-to-

believe disposition in January of 2019 for neglectful supervision of Jennifer and Lizzy.

But Rochelle Hill, who was employed in a division of CPI, testified that the Department

had gotten involved with the family in 2018 because there were concerns of severe

behavioral issues with Jennifer and Jane and because Mother was not following through

with recommendations for mental-health help for the children.

5 When Hill spoke with Mother on December 11, 2018, Mother said that she had

allowed Father to stay with her for a short period of time because he was having

financial issues. Hill testified that it was concerning that Mother had let Father back

into their home after his numerous convictions, including ones in which Mother was

the victim.8 When Father returned, he tried to whip the children; Mother tried to stop

him; and Father headbutted her, pushed her over some furniture, and broke a mirror.

After that incident, the case proceeded to an investigation because the Department

received two referrals—one for medical neglect and one for physical abuse. Hill spoke

with Mother on December 17, 2018; created a safety plan; and gave Mother resources

for seeking help and for locating domestic-violence shelters.

Mother agreed that she had a third FBSS case between January 2019 and August

2019 and that when the case closed, she and the children were living with Maternal

Grandmother.

Mother said it sounded familiar that she had received a reason-to-believe

disposition in April 2021 to sometime in July 2021 because the children were getting

out of the home and were being left unattended. She further agreed that situation had

8 The Department admitted judgments showing that Father had been convicted of felony assault of a family or household member that occurred in 2009 and in 2019 (Mother was the victim in 2009), possession of cocaine that occurred in March 2016, burglary of a habitation that occurred in 2011, misdemeanor assault causing bodily injury to a family member that occurred in 2008 (Mother was the victim), and delivery of cocaine that occurred twice in 2016.

6 led to her fourth FBSS case between July 2021 and September 2021, but she did not

recall being noncompliant with FBSS during that case.

Mother denied having a fifth FBSS case between September and October 2022.

But Mother recalled receiving a reason-to-believe disposition in January 2023 because

Jennifer (who was twelve at the time) had been missing her doctor appointments since

August 2022.

Mother agreed that her sixth FBSS case had started in January 2023 and was

ongoing when the children were removed during this case.

C. The Incident at Cook Children’s Medical Center and What the Investigation Revealed about Mother’s Living Situation, Her Mental-Health Issues and Drug Use, and the Children’s Issues

Passion’e Henry, an investigator with CPI, testified that she was assigned to the

case in mid-February 2023 while Mother was involved in her sixth FBSS case. The

Department received a report concerning Jennifer’s attempt to jump off the ledge of

the top floor of the parking garage at Cook Children’s. The report detailed that five

security officers had to subdue Jennifer and that she was given a shot to calm her down;

she was subsequently admitted to Cook Children’s Behavioral Health Unit. The report

also noted that there was physical neglect of all the children as they were living with

Mother in a vehicle that was parked in the parking garage at Cook Children’s. Father

was incarcerated at that time, as well as most of the time the case was pending.

Henry spoke with Mother at the Department’s office in February 2023, and

Mother explained her living situation. Mother said that she and her children had been

7 evicted from an apartment not due to an inability to pay but due to the children’s

behavior—arguing with neighbors, taking clothes out of the washer and dryer, and

leaving trash around the apartment complex. Mother and the children had lived with

Maternal Grandparents for a short period of time until Maternal Grandparents had

moved. Since then, Mother and the children had alternated between living in Mother’s

vehicle and staying in motel rooms. Henry said that the family had stayed in motel

rooms only when Mother was able to afford it. At the time of the Cook Children’s

incident, Mother and her eight children were living in her vehicle in the parking garage

at Cook Children’s because Jennifer had an upcoming appointment due to her

diagnoses of schizophrenia, bipolar disorder, sickle cell disease, and lupus.

Mother discussed with Henry what had prompted Jennifer’s attempted jump.

Mother said that Jennifer had been complaining and whining about needing to go to

the bathroom. Instead of waiting, Jennifer got out of the vehicle and went down to the

second floor to use the bathroom. When Jennifer did not return, Mother drove around

looking for her. When Mother could not find her, Mother alerted the security staff.

When they found Jennifer, she said that she did not want to go back with Mother.

Mother asked the security staff what she should do if Jennifer did not want to live with

her, and they suggested that Jennifer needed to be checked out at the hospital.

Henry said that the seven children (other than Jennifer who was hospitalized)

had come with Mother to Henry’s office and were very loud; plus, the younger children

went into other people’s offices and looked in drawers. Henry noted that “at no point

8 did [Mother] stop and redirect the children or tell them . . . [to] quiet down.” Henry

had to redirect the children and had to tell them to lower their voices because Mother

seemed “checked out” or withdrawn and was not very present.

Mother said that she was taking prescribed hydrocodone. Mother told Henry

that she had been diagnosed with anxiety in 2016 and had taken Zoloft for a bit but had

stopped because she did not like the way that it made her feel.

Mother mentioned that her son Izzy was on juvenile probation. Mother

explained that she had allowed Izzy to discipline the children and that he had taken it

too far by punching Jane in the face. As a result, he was charged with family violence.

When Henry spoke with Mother on March 1, 2023, Mother said that she and the

children were living with a relative but that she was uncomfortable with the situation.

Mother explained that the children had been breaking items and getting into arguments

with a neighbor and that she preferred to be in her own space. Two weeks later, Mother

informed Henry that she and her children had moved out of the relative’s home.

Henry testified that Mother was supposed to go to MHMR for her mental health,

but Mother said that she was not able to make her appointments because she did not

have anyone to watch the children. Henry expressed that this was concerning because

Mother had not been able to follow up on her mental-health needs. Henry noted that

FBSS had gotten involved in Mother’s life because of medical neglect due to not taking

Jennifer to her appointments and that Mother had a history of missing appointments

for herself and her children.

9 When Henry met with Mother and her FBSS caseworker on March 23, 2023,

Mother said that she had enrolled the four youngest children in school and that she

would soon enroll the older children.9 They discussed whether Mother would be willing

to give the Department voluntary custody of Eric, Matthew, and Jane and to allow

Gwen to go live with her alleged father. Mother said that she was overwhelmed, that

she was tired of taking the children from motel to motel because it was “no way for a

child to live,” that she wanted them to be happy, and that she wanted the Department

to take over temporarily. Henry asked Mother about allowing Jennifer to be placed in

the Department’s care because her medical needs and mental health were not being

addressed, but Mother responded that she wanted to keep Jennifer in her care

specifically because of her medical and mental-health needs. When Henry said that if

the Department removed the children that day, they would like to include Jennifer in

the removal, Mother wadded up the statement she had written to temporarily allow the

Department to care for three of her children and stepped outside. The Department did

not remove the children that day.

Later that day (March 23, 2023), Henry spoke to Mother about her hydrocodone

use. Mother said that she was taking the medication due to lingering pain from a bone

9 Prior to the removal, the children were not enrolled in school. Although the older children had been enrolled in school at some point in their lives, they had missed years (e.g., Jennifer had completed second or third grade but was enrolled in eighth grade at the time of the August trial), and the youngest children had never been to school. Mother said that when the older children had been enrolled in school, she always had to go pick them up due to behavioral problems.

10 that she had broken in a car crash in 2011. Although Mother had said in February that

she had a hydrocodone prescription, she admitted in March that she did not. Mother

said that she had obtained the medication from Maternal Grandfather and from a

friend. Henry expressed her concerns over Mother’s use of non-prescribed

hydrocodone because it was not being managed by a doctor and could result in an

overdose. Henry said that hydrocodone impairs a parent’s ability to pay attention to

her children and that Mother’s younger children were very active.

Mother also admitted to Henry that she smoked marijuana to manage her

anxiety. She claimed that she did not smoke it that often and did so at night after the

children had gone to sleep. Henry explained that marijuana could also impair Mother’s

ability to monitor her children. Although Henry requested that Mother submit to an

oral-swab drug test that day, she did not comply.

D. The Incident at the Motel and Mother’s Drug Addiction

Henry scheduled an appointment to meet with Mother the next day—March 24,

2023—to which Mother agreed but did not show. Henry and Letitia White (another

investigator with CPI) went to the motel where Mother and the children were staying.

After Henry arrived, she saw Jane, Eric, and Matthew near an open window in a ground-

floor room; Gwen was also in the room. When the children saw her, they closed the

window and ran. Henry noted that there was no adult in the motel room to supervise

the children.

11 Henry found Mother and the remaining children sleeping in Mother’s vehicle,

which was parked in front of the children’s motel room.10 Henry went up to the vehicle

and knocked on the driver’s side window, which had a jacket or a sheet covering it. It

took several knocks before Mother, who “was heavily asleep,” woke up.

White testified that she had spoken with Mother at the motel. Mother initially

denied having taken hydrocodone but then admitted to having taken it multiple times

per day even though she did not have a prescription. Mother said that at one point, she

had been taking two to three pills at once but was down to one pill per day. Mother

also admitted taking Soma—a muscle relaxer—that was not prescribed to her. Mother

further admitted that she had taken a lot of pills but was “unsure of what they [we]re.”

Mother explained that she had taken prescription pills without a prescription because

she had pain from a prior leg injury and because they made her “feel free” and made

her “feel good.” White was concerned about Mother’s ability to supervise and protect

her younger children when she was taking medication for which she was not under a

doctor’s order. White said that Mother’s eyes were very glassy; that her responses were

very delayed; and that she talked “a little bit with her mouth twisted” and kept wiping

the corners of her mouth.

10 When asked at trial about the motel incident that prompted the children’s removal, Mother explained that Izzy has always been “stubborn and to hisself [sic]” and that she had stayed up all night to make sure that he was okay. Mother said that she had put the babies in bed to sleep and claimed that Tiffany and Jane were in the room with the younger children.

12 Mother complied with White’s request for an oral-swab drug test. When White

confronted Mother with the results, Mother said that she had taken hydrocodone two

days prior on March 22—the day that she had met with Henry at the Department’s

office. Mother explained to White that the “Department had stressed her out to the

point where she just needed it.” White said that this raised concerns that Mother was

using hydrocodone to self-medicate her mental-health issues.

At the end of the conversation, Mother admitted that she had taken hydrocodone

at 10 p.m. on March 23—the night that she had slept in the vehicle while her young

children had slept in the motel. When White confronted Mother about taking

hydrocodone while three of her younger children were unsupervised in a motel room,

Mother responded that Izzy had to sleep outside in the vehicle “anyway and that she

was gonna be out there because of that.”

Henry disposed of the case as reason to believe for neglectful supervision and

medical neglect. The children—Jennifer, Jane, Eric, Matthew, and Gwen—were

removed that day. 11 Henry explained that the other three children (Izzy, Lizzy, and

Tiffany) were left with Mother because they were older (ages fourteen to sixteen) and

because they could self-protect.

11 During her investigation, Henry spoke with Maternal Grandmother about helping Mother, and Maternal Grandmother said that she and Maternal Grandfather were unable to house the children and were unable to provide financial support.

13 Henry described how Jennifer had responded to the removal. Jennifer became

very upset and aggressive—flipping chairs, throwing a caseworker’s laptop, and using

some nail glue to stick glitter to a table. Jennifer also took thumbtacks out of the wall

and put them in her mouth; a Department employee ultimately convinced Jennifer to

spit out the tacks. Henry said that Jennifer was taken to Cook Children’s and then was

transported to a behavioral hospital.

E. Services

Mother received a service plan that was made an order of the court on May 24,

2023. In January 2024, while Mother was pregnant with Destiny, Amanda Rountree, a

permanency specialist with Our Community Our Kids (OCOK), spoke with Mother

about starting the services on her service plan. Rountree testified, and Mother admitted,

at trial that Mother had completed only two of her services—utilizing an intimate-

partner-violence program (i.e., SafeHaven) and finishing the FOCUS for Mothers

program; she did not obtain safe and stable housing; maintain communication with the

Department; demonstrate steady employment; submit to random drug testing; and

complete a drug-and-alcohol assessment, individual counseling, or a mental-health

assessment.

1. Housing Instability

While Henry was investigating, she opined that Mother’s housing instability was

constant and was a result of a lack of financial resources. Henry said that there were

only two shelters that were available to Mother due to the number of children that she

14 had, but Mother did not want to go to them because she felt that she would not be able

to properly supervise her children or keep them safe. While the case was pending,

Mother gave the Department “random addresses” every other week, showing that she

had been living at motels or hotels, with friends or family, in her car, or at SafeHaven.

Mother admitted that housing had been a struggle for her “throughout this last

year.” She explained that housing was an issue because “with so many kids and

[Jennifer’s] and [Jane’s] behavioral [issues,]” Mother had been kicked out of certain

housing programs; Mother said, “So once you get evicted, you can’t have housing.”

Mother noted that her housing was still in flux at the time of the August trial and that

she was staying either with Maternal Grandmother or in a motel. Mother claimed that

Maternal Grandparents were willing to take any of Mother’s children or all of them so

that they would not be adopted. Mother stated that she had not been offered access to

the Department’s housing voucher program even though she had asked for assistance.

Mother said that was only available if the plan was reunification.

Bailey Trevino, an investigator with the Department, testified that Mother told

her in August 2024 that she was living at SafeHaven due to domestic violence with

Destiny’s father and that Lizzy and Tiffany were with her. But Trevino noted that

closer to the August trial, Mother had been staying in a motel and that she (Trevino)

had picked up Mother from Maternal Grandmother’s home on the morning of the

August trial; Trevino opined that Mother’s living situation was “kind of just place to

place.” At the time of the August trial, Tiffany and Izzy were the only children who

15 were living with Mother. Mother had applied to get into the Salvation Army but had

not heard back.

2. Mother’s Mental Health and Drug Use

Mother mentioned to Trevino that she had anxiety but that she was not receiving

any treatment and was not on any medication for it. Mother testified at trial that she

believed that she suffered from depression and anxiety, as well as opioid addiction.

Mother said that she had last been treated for those issues by a mental-health

professional in 2016. She agreed that she had self-medicated with opioids but denied

self-medicating with marijuana. When asked what she had done in 2024 to address her

depression and anxiety, Mother answered, “Survive.”

Mother said that she used opioids for pain and anxiety and that she still

experienced pain from the car-crash injuries. Mother said that she had been prescribed

hydrocodone in March 2024 following the C-section with Destiny and that she was re-

prescribed hydrocodone in June 2024. Mother told Trevino that she would provide a

copy of the prescription, but Mother failed to follow through. Mother testified that she

did not have a hydrocodone prescription as of the August trial. Mother admitted that

she had used marijuana while she was still under OCOK supervision in this case.

Rountree said that using opioids and marijuana creates a high-risk situation because it

causes Mother to be neglectful in supervising and caring for her children.

Trevino requested that Mother take a drug test ten days before the August trial,

but Mother did not take the test, which was presumed positive. Rountree was

16 encouraged that Mother had taken a drug test on the August trial date, but Rountree

had requested that Mother submit to a drug test almost every month while the case was

pending and never received compliance.

Mother admitted that she had not addressed her opioid addiction and

acknowledged that her addiction had contributed to having her children removed.

Mother felt like treatment for her addiction would be helpful but said that she had not

been offered treatment. When asked why she did not complete the drug assessment,

she said, “When this all happened, so much was throw[n] at me on one big page, and it

was just a lot going on.”

3. Employment

Mother said that she was not receiving any Social Security disability payments,

that she had received $200 per month at times for child support for Izzy, and that the

longest period of time that she had worked was three years as a wine server. Mother

testified that during this case she had worked at Globe Life Stadium for only one month.

Mother said that she was a certified nurse’s aide but that she was not working as of the

August trial.

4. Visits

Rountree noted that Mother made nearly all of her visits with the children,

demonstrating that she loves her children. But Rountree described the visits as “very

chaotic, very disruptive” and said that there had been “a lot of safety concerns with the

visits” and that Mother did not redirect the children when they acted out. Due to

17 Mother’s struggle to manage her children and their unsafe behaviors, OCOK had to

call the police to come to at least one of the visits.12

Mother described her visits with the children and said that they all try to talk at

once because “it’s such a short time.” Mother explained that the children are “a little

excited and get loud,” and “so that’s probably where [Rountree] gets the disturbance.”

Mother said that the children cry when the visits end and that they want to come home.

F. The Children’s Status and Their Needs

Rountree summarized how the children were doing as of the August trial:

• Gwen was living in a general residential operation in Stephenville and was doing “really well.” She was “really taken care of by her caregivers” and had “really bonded with them.” Gwen was thriving in school and in her extracurricular activities.

• Matthew was living in the same general residential operation as Gwen. Though Matthew was doing well overall and had bonded to his current caregivers, he struggled “slightly with behaviors and in school.”

• Eric had been in three placements and was living in a residential treatment center in Houston instead of a foster home because he had started exhibiting extreme anxiety behaviors13 and because of a serious incident at a prior foster home. He was doing relatively well in his placement and had just started school at the time of the August trial.

12 Rountree explained that the police had been called after Jennifer had refused to leave a visit, had cursed out everyone, had been unsafe and extremely disruptive, and had run down the street.

Mother testified that since the removal, Eric had been prescribed psychotropic 13

medication.

18 • Jane had been in three to six placements (including psych hospitals), was living in a residential treatment center in Cypress, and was “relatively . . . well taken care of.” She struggled with school and “just behavioral issues with social skills and things of that nature, coping skills.”

• Jennifer was living in a residential treatment center in Houston (not the same one as Eric) and was doing “relatively well in the placement itself [as far as] connecting with them and them isolating the correct treatment for the services she needs”14 but was struggling with school. Jennifer had lived in over two dozen placements but was finally in a secure place and was medically stable with her lupus and high blood pressure.

At the time of the August trial, none of the children were in an adoption-motivated

home. But the Department had submitted paperwork for the three youngest children

to be moved to an adoption-motivated home, and the hope was that they could be

placed together. The Department had reached out to the people that Mother had

offered as potential placement options but had not found a viable placement option.

G. Destiny15

Trevino investigated Mother and her three-month-old daughter Destiny in

August 2024 after receiving a referral stating that Destiny had been missing medical

appointments. Destiny was ultimately placed in foster care on August 7, 2024, due to

safety concerns and the inability to get in touch with Mother. Two days after Destiny’s

removal, Trevino was finally able to speak to Mother, who said that she had not seen

14 Mother testified that Jennifer was taking psychotropic medication. 15 Rountree was not aware of Mother’s or Destiny’s testing positive for any controlled substances when Destiny was born.

19 Destiny in two months because Destiny’s father (who was a different man than Father)

had taken her.

H. Recommendations

Rountree concluded that Mother had not demonstrated that she could meet the

children’s physical and emotional needs now and in the future because Mother had not

“even addressed her own mental health and emotions.” Rountree opined that Mother

had not demonstrated that she could protect the children from emotional and physical

danger now and in the future because in addition to failing to address her own mental-

health issues, she had not completed drug tests, had continued to place herself in

dangerous environments, and had continually faced housing and employment losses.

Rountree opined that it was in Eric’s, Matthew’s, and Gwen’s best interest for

Mother’s parental rights to be terminated. Rountree explained that those three were

the youngest and most vulnerable and that termination would give them “a chance at

some normalcy and stability and safety.” Rountree’s termination recommendation was

based on Mother’s failure to address any of the concerns that had brought the children

into the Department’s care, including using drugs, failing to meet their needs, failing to

manage her own mental health, placing herself in dangerous environments, and failing

to obtain stable housing and employment.

When Rountree was asked if it was in Jennifer’s and Jane’s best interest to have

Mother appointed as managing or possessory conservator, Rountree answered yes but

then gave the same list of reasons that she had given for terminating Mother’s parental

20 rights to Eric, Matthew, and Gwen. When asked if it would be in all of the children’s

best interest to have the trial court appoint the Department as permanent managing

conservator, Rountree answered in the affirmative. On cross-examination, Rountree

agreed that all five children desired to return to Mother and said that she (Rountree)

was asking the trial court to appoint Mother as Jennifer’s and Jane’s possessory

conservator. On redirect, Rountree stated that she must have misheard the question

about conservatorship and that it was the Department’s belief that it was not in Jennifer’s

and Jane’s best interest for Mother to be appointed as their managing or possessory

conservator.

Mother did not believe that it was in the children’s best interest for her parental

rights to be terminated because she was all they had ever had. Mother opined that it

would make the situation “way worse[] for them if they got that type of news.” When

asked what she wanted the trial court to do, Mother said, “Just help me get the tools to

stand on my two feet to take care of them, at least like a boost. And . . . I’ll do the best

job to finish raising them that I’ve done so far.” Mother agreed that all she was missing

was the financial resources to care for her children. But when asked if the Department,

other service providers (i.e., SafeHaven and Open Arms), and Maternal Grandmother

had given Mother the tools in the past to get a boost, Mother answered, “Yes, they

have.”

21 I. The Ad Litem’s Report

After the defense rested, the children’s attorney ad litem gave an oral report to

the trial court. She stated that if the children were returned to Mother, she did not

expect to see a different outcome because “if it hasn’t happened in 17 years, I don’t

think it’s going to.” The ad litem further explained, “I don’t know what it takes to get

[Mother] there. I feel like the [Department] has done everything they can. It’s basically

just up to [Mother].” The ad litem lamented that Jennifer’s and Jane’s situations were

not ideal but said that the younger children were doing well, though Eric was having

some problems that she believed would resolve. The ad litem recommended

terminating Mother’s parental rights to “all of them” except for the teenagers because

“it’d be the same situation whether they’re terminated or not,” intimating that she did

not believe that they would be adopted in the short time before they turned eighteen.

J. Disposition

After hearing the testimony, the trial court granted the Department’s requested

relief.

III. Sufficient Evidence Supports the Endangerment and Best-Interest Findings

In her first, second, and third issues, Mother challenges the sufficiency of the

evidence to support the endangering-environment, endangering-conduct, and best-

interest findings. We set forth the burden of proof and the standards of review and

22 then address each of these issues in turn, ultimately holding that sufficient evidence

supports all three findings.

A. Burden of Proof and Standards of Review

For a trial court to terminate a parent–child relationship, the Department must

prove two elements by clear and convincing evidence: (1) that the parent’s actions

satisfy one ground listed in Family Code Section 161.001(b)(1); and (2) that termination

is in the child’s best interest. Id. § 161.001(b); In re Z.N., 602 S.W.3d 541, 545 (Tex.

2020). Evidence is clear and convincing if it “will produce in the mind of the trier of

fact a firm belief or conviction as to the truth of the allegations sought to be

established.” Tex. Fam. Code Ann. § 101.007; Z.N., 602 S.W.3d at 545.

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

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

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

that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences,

but they must be reasonable and logical. Id. We assume that the factfinder settled any

evidentiary conflicts in favor of its finding if a reasonable factfinder could have done

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

and we consider undisputed evidence even if it is contrary to the finding. Id.; In re J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002). That is, we consider evidence favorable to the finding

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

factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The factfinder is

23 the sole judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336,

346 (Tex. 2009). Moreover, evidence is not legally insufficient merely due to

inconsistencies or disputes in the evidence, and “a holistic review of the evidence”

should be performed. In re C.E., 687 S.W.3d 304, 309 (Tex. 2024).

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

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

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

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

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

whether a factfinder could reasonably form a firm conviction or belief that the

Department proved that Mother’s conduct had endangered Eric, Matthew, and Gwen 16

and had created an endangering environment for them and that the termination of the

parent–child relationship would be in their best interest. See Tex. Fam. Code Ann.

§ 161.001(b)(1)(E), (2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder

reasonably could form such a firm conviction or belief, then the evidence is factually

sufficient. C.H., 89 S.W.3d at 18–19.

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

24 B. Endangerment Findings

In her first and second issues, Mother argues that the evidence is legally and

factually insufficient to support the jury’s endangerment findings under Subsections (D)

and (E) of Texas Family Code Section 161.001(b)(1). Applying the standards of review

set forth above, we hold that both legally and factually sufficient evidence supports the

Subsection (D) and (E) endangerment findings.

1. Applicable Law

This court has previously set forth the law on endangerment findings and

demonstrated how a parent’s conduct may be considered within an endangering-

environment analysis under Subsection (D):

Subsections (D) and (E) both require a finding of endangerment. “‘[E]ndanger’ means to expose to loss or injury” or “to jeopardize.” In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)); see also In re J.V., No. 02- 15-00036-CV, 2015 WL 4148500, at *3 (Tex. App.—Fort Worth July 9, 2015, no pet.) (mem. op.) (“A child is endangered when the environment creates a potential for danger that the parent is aware of but disregards.”). The specific danger to a child’s physical or emotional well-being need not be established as an independent proposition, but it may be inferred from parental misconduct. [Boyd], 727 S.W.2d at 533.

Endangerment under Subsection (D) arises from the child’s environment, but a parent’s conduct can contribute to an endangering environment. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). “[A]busive or violent conduct by a parent or other resident of a child’s home may produce an environment that endangers the physical or emotional well-being of a child.” Id.; see J.V., 2015 WL 4148500, at *3 (“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 [S]ection 161.001(b)(1)(D).”). . . .

25 Subsection (D) permits termination based upon a single act or omission. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

A parent’s choice to continue a romantic relationship with a partner who exposes the child to domestic violence can constitute endangerment under Subsection (D) because such exposure may cause traumatic harm to a child. In re O.E.R., 573 S.W.3d 896, 906 (Tex. App.—El Paso 2019, no pet.) (concluding that parent’s choice to continue romantic relationships that exposed child to domestic violence resulting in traumatic emotional harm to child supported environmental endangerment predicate) . . . .

In re B.U., No. 02-23-00150-CV, 2023 WL 5967604, at *3–4 (Tex. App.—Fort Worth

Sept. 14, 2023, pet. denied) (mem. op.).

Conduct-based endangerment under Subsection (E) requires more than a “single

act or omission”; it requires a “voluntary, deliberate, and conscious course of conduct.”

In re R.H., No. 02-20-00396-CV, 2021 WL 2006038, at *13 (Tex. App.—Fort Worth

May 20, 2021, no pet.) (mem. op.). As a course of conduct, endangerment under

Subsection (E) “is not limited to actions directed towards the child,” J.F.-G., 627 S.W.3d

at 315 n.43 (quoting J.O.A., 283 S.W.3d at 345), and may include “actions before the

child’s birth, actions while the child is not in the parent’s presence, and actions while

the child is in the Department’s custody.” See In re C.Y., No. 02-21-00261-CV, 2022

WL 500028, at *2 (Tex. App.—Fort Worth Feb. 18, 2022, pet. denied) (mem. op.). It

is not necessary to establish that a parent intended to endanger a child to support

termination under Subsection (E). See In re M.C., 917 S.W.2d 268, 270 (Tex. 1996). Nor

is it necessary to establish that the parent’s conduct caused actual harm; rather, it is

26 sufficient if the parent’s conduct endangers the child’s well-being. In re R.R.A., 687

S.W.3d 269, 277–78 (Tex. 2024).

As we have noted in a prior opinion,

As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the child’s physical and emotional well-being. See [In re] S.D., 980 S.W.2d [758,] 763[ (Tex. App.—San Antonio 1998, pet. denied)]. A factfinder may infer from past conduct endangering the well- being of the child that similar conduct will recur if the child is returned to the parent. In re M.M., No. 02-08-00029-CV, 2008 WL 5195353, at *6 (Tex. App.—Fort Worth Dec. 11, 2008, no pet.) (mem. op.).

In re M.B., No. 02-15-00128-CV, 2015 WL 4380868, at *12 (Tex. App.—Fort Worth

July 16, 2015, no pet.) (mem. op.).

We catalog some of the types of conduct that can be considered in an

endangering-conduct analysis:

• Because a parent’s illegal drug use exposes her child to the possibility the parent may be impaired or imprisoned, evidence of illegal drug use supports a finding that the parent engaged in a course of conduct that endangered the child’s physical or emotional well-being. See J.O.A., 283 S.W.3d at 345.

• “A parent’s mental health is frequently considered in reviewing the sufficiency of the evidence under endangerment grounds.” In re J.P.-L., 592 S.W.3d 559, 583 n.26 (Tex. App.—Fort Worth 2019, pet. denied).

• Also as part of the endangering-conduct analysis, a court may consider a parent’s failure to complete a service plan. See In re R.F., 115 S.W.3d 804, 811 (Tex. App.—Dallas 2003, no pet.).

27 Moreover, “evidence of improved conduct, especially of short[ ]duration, does not

conclusively negate the probative value of a long history of drug use and irresponsible

choices.” J.O.A., 283 S.W.3d at 346.

2. Analysis

The record demonstrates that Mother had a continuing course of conduct that

endangered her children and that her conduct created an endangering environment for

her children:

• The Department initially became involved with Mother and her children in 2008, and that pattern continued up until the removal of these five children in March 2023. The record is replete with reason-to-believe dispositions in the numerous FBSS cases that investigated Mother for endangering her children through medical neglect and neglectful supervision.

• The record also demonstrates that Mother had a history of using marijuana and of taking hydrocodone and other unknown pills without a prescription. Mother admitted having taken hydrocodone since 2011, having taken up to three hydrocodone pills at once for a period of time, and having taken one hydrocodone pill at 10 p.m. before spending the night in her vehicle with some of her children while leaving four other children unsupervised overnight in a motel room. Despite submitting to a drug test on the day of the August trial and relying on the fact that neither she nor Destiny had tested positive at Destiny’s birth in March 2024, Mother admitted at the August trial that she was addicted to hydrocodone. Moreover, the trial court was free to conclude that because Mother had failed to submit to drug tests that had been requested almost every month during the fifteen months that the case was pending, those tests would have been positive. The Department showed how Mother’s hydrocodone use endangered her children by impairing her ability to properly supervise them.

• Mother had a history of being unable to properly supervise and care for her children. Mother failed to keep tabs on Jennifer at the Cook

28 Children’s parking garage and left four children completely unsupervised overnight in a motel room. Mother also could not rein in her children’s behavior, resulting in chaotic visits, evictions, and destruction at the Department’s offices. And Mother delegated her parental duties to Izzy, allowing him to discipline the children to the point that he received a charge of family violence for punching Jane in the face. Additionally, Mother had not taken Jennifer to her mental-health appointments regularly since August 2022, and the record demonstrates how much Jennifer desperately needed such care. And as to the basic necessity of housing, Mother provided no stability for the children as they had no permanent place to live.

• The FBSS cases that preceded the removal in this case reflect that domestic violence was prevalent in the children’s lives as a result of the partners whom Mother had chosen. After one child suffered a spiral fracture at Father’s hands, Mother returned to Father and brought her children to live with him—the same man who ultimately went to prison for abusing Mother.

• Although Mother had completed FBSS services in many of her prior cases, she admitted that she had completed only two of the services on her current plan and had not addressed the concerns that had caused the children to be removed.

Mother contends that the endangerment findings were based on evidence that

she is economically disadvantaged as described in Section 161.001(c)17 or that related

to events that had occurred years earlier. The Department concedes that it “did offer

evidence of Mother’s economic disadvantage, namely, her lack of stable housing or

steady employment[] but [that] this was not the only evidence offered for the trial court

17 Texas Family Code Section 161.001(c)(2) states that “[e]vidence of one or more of the following does not constitute clear and convincing evidence sufficient for a court to make a finding under Subsection (b) and order termination of the parent–child relationship: . . . the parent is economically disadvantaged.” Tex. Fam. Code Ann. § 161.001(c)(2).

29 to base its reasonable conclusion that termination was warranted.” We agree with the

Department. Of the items that we have cataloged, Mother’s exposing the children to

her abusive partners, her use of hydrocodone and other medications without a

prescription, and her inability to redirect and supervise her children do not directly

correlate to any sort of economic disadvantage. Moreover, despite Mother’s protest

against the use of prior history, she cites nothing to support her argument, and the

Department was permitted to put on evidence of events that had occurred years earlier

to meet Subsection (E)’s requirement of showing that there was a “voluntary, deliberate,

and conscious course of conduct.” See R.H., 2021 WL 2006038, at *13.

Applying the standards of review set forth above, we hold that the evidence is

legally and factually sufficient to support the endangerment findings under Subsections

(D) and (E). See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In re A.M., No. 02-24-

00199-CV, 2024 WL 4157766, at *14 (Tex. App.—Fort Worth Sept. 12, 2024, pet.

denied) (mem. op.) (holding evidence legally and factually sufficient to support the

endangering-conduct finding when the jury had heard about multiple types of

endangering conduct, including drug use, prior CPS history, and domestic violence); In

re A.O., No. 02-21-00376-CV, 2022 WL 1257384, at *10, *12–13 (Tex. App.—Fort

Worth Apr. 28, 2022, pet. denied) (mem. op.) (holding evidence legally and factually

sufficient to support endangerment findings because there was “no doubt that Mother’s

failure to act—specifically, failure to adequately supervise—endangered her

[c]hildren”); In re J.A.V., 632 S.W.3d 121, 131–34 (Tex. App.—El Paso 2021, no pet.)

30 (holding evidence legally and factually sufficient to support endangering-conduct

finding when, among other things, mother used hydrocodone while caring for child

because it affected mother’s ability to parent). We overrule Mother’s first and second

issues.

C. Best-Interest Finding

In her third issue, Mother challenges the sufficiency of the evidence to support

the best-interest finding. 18 After applying the best-interest factors, as set forth below,

we conclude that the finding is supported by legally and factually sufficient evidence.

1. The Law on Best Interest

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

best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest analysis is

child-centered, focusing on the child’s well-being, safety, and development, In re A.C.,

560 S.W.3d 624, 631 (Tex. 2018). In determining whether evidence is sufficient to

support a best-interest finding, we review the entire record. In re E.C.R., 402 S.W.3d

239, 250 (Tex. 2013). Evidence probative of a child’s best interest may be the same

evidence that is probative of a Subsection (b)(1) ground. Id. at 249; C.H., 89 S.W.3d at

28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the evidence in light

In the list of issues in Mother’s brief, she characterizes her best-interest 18

argument as challenging both the legal and factual sufficiency. When she repeated that argument later in her brief, she mentioned only factual sufficiency. For purposes of completeness, we will analyze both the legal and factual sufficiency of the evidence to support the best-interest finding.

31 of nonexclusive factors that the factfinder may apply in determining the child’s best

interest:

(A) the [child’s] desires . . . ;

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

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

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

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

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

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

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

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

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see E.C.R., 402

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

other evidence, the Holley factors” (footnote omitted)); In re E.N.C., 384 S.W.3d 796,

807 (Tex. 2012). These factors are not exhaustive, and some listed factors may not

apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just

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

32 interest. Id. On the other hand, the presence of scant evidence relevant to each factor

will not support such a finding. Id.

a. The Children’s Desires

It was undisputed at trial that the children love Mother and want to live with her.

The trial court was entitled to find that this factor weighed against termination of

Mother’s parental rights to Eric, Matthew, and Gwen. See In re C.S., No. 02-14-00386-

CV, 2015 WL 1869443, at *13 (Tex. App.—Fort Worth Apr. 23, 2015, no pet.) (mem.

op.) (citing W.D. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-14-00581-CV, 2015 WL

513267, at *6 (Tex. App.—Austin Feb. 5, 2015, no pet.) (mem. op.), for the proposition

that children’s desires to live with parent arguably weigh in favor of allowing parent to

retain her parental rights but ultimately holding that other factors were sufficient to

support jury’s best-interest finding).

b. The Children’s Emotional and Physical Needs and the Danger to the Children

The children’s physical needs included basic necessities like safe, stable housing.

Mother had been unable to provide any housing stability for the children and often

resorted to having all eight children spend the night with her in her vehicle.

Additionally, as described in the endangerment analysis, Mother had exposed the

children to domestic violence and was unable to properly supervise the children due in

part to her opioid addiction, which posed an ongoing threat to the children since

33 Mother had not addressed her addiction while the termination suit was pending. The

children’s emotional needs were diverse as they all exhibited disruptive behaviors that

had gotten them sent home from school and evicted from apartments, and Eric had

extreme anxiety and was taking psychotropic medication. Mother had not shown an

ability to redirect her children or to help them self-regulate and had failed to take

Jennifer to her medical appointments for several months—a fact from which the trial

court could have concluded that Mother would have difficulty taking Eric to his follow-

up appointments to monitor his psychotropic medication if he were returned to her.

The trial court was entitled to find that these two factors weighed in favor of

termination of Mother’s parental rights to Eric, Matthew, and Gwen.

c. Parenting Abilities, Acts and Omissions Suggesting an Improper Relationship, and Available Programs

As detailed in the endangerment analysis, Mother’s lack of parenting skills, as

well as her improper acts and omissions, included being unable to properly supervise

her children, especially after giving into her hydrocodone addiction; her decision to

leave young children in a motel room overnight without adult supervision; her decision

to allow Izzy to discipline the children; and her poor relationship decisions that resulted

in the children’s witnessing domestic violence and in Izzy’s receiving a spiral fracture.

Despite having completed FOCUS for Mothers, Mother failed to demonstrate at the

visits that she had learned how to manage or redirect her children and instead allowed

them to be disruptive. These acts and omissions indicate that the existing parent–child

34 relationship is an improper one. Furthermore, Mother acknowledged during the

August trial that the Department, SafeHaven, and Open Arms had given her the tools

that she needed to “get a boost,” but she had failed to take advantage of the many

services that she was offered. The trial court was entitled to find that these three factors

weighed in favor of termination of Mother’s parental rights to Eric, Matthew, and

Gwen.

d. Plans for the Children and Stability of Proposed Home

At the August trial, Rountree explained that after no viable kinship option was

found, she had spent the month prior to the trial attempting to find an adoption-

motivated foster home that would take all three children. Rountree had not been

successful in locating that type of placement as of the August trial, but it was still the

Department’s plan for the three children to be adopted together. The stability of the

Department’s proposed home for the children thus remained in question.

Mother did not testify regarding a specific plan for the children if they were

returned to her care but instead requested tools “to stand on [her] two feet to take care

of them” and that she would “do the best job to finish raising them that [she had] done

so far.” Mother believed that Maternal Grandparents would allow the children to live

with them, despite that Maternal Grandmother had previously told the Department that

she and Maternal Grandfather were unable to take the children and that Mother was

not even living there full time but was bouncing between Maternal Grandparents’ home

and motels.

35 The trial court was entitled to find that these two factors were neutral.

e. Excuses

Mother admitted that her opioid addiction had contributed to having her

children removed. But Mother never explained why she did not have full-time

employment and blamed her housing instability on her children, stating that “with so

many kids and [Jennifer’s] and [Jane’s] behavioral [issues,]” she had been kicked out of

certain housing programs and that “once you get evicted, you can’t have housing.”

Mother also blamed the disruptive, chaotic visits on the short time that they were given

and on the children’s desire to all talk at once. Because Mother accepted some

responsibility but also gave excuses, the trial court was entitled to find that this factor

was neutral.

f. Sufficient Evidence of Best-Interest Factors

As she did with her challenges to the endangerment findings, Mother contends

within her best-interest argument that “[e]vidence that the parent is economically

disadvantaged does not constitute clear and convincing evidence.” And as we

concluded regarding the endangerment findings, the trial court’s best-interest finding

can be supported by non-economic evidence, including Mother’s hydrocodone

addiction, domestic-violence exposures, inability to redirect and parent the children,

and failure to take advantage of the services that she was offered.

Applying the appropriate standards of review, we hold that the evidence is legally

and factually sufficient to support the finding that termination of Mother’s parental

36 rights to Eric, Matthew, and Gwen is in their best interest. See Tex. Fam. Code Ann.

§ 161.001(b)(2); In re A.V., No. 11-23-00144-CV, 2023 WL 8631492, at *8 (Tex. App.—

Eastland Dec. 14, 2023, no pet.) (mem. op.) (holding evidence legally and factually

sufficient to support the best-interest finding based on, among other things, mother’s

lack of parental abilities, history of domestic violence and drug abuse, her inability to

provide a safe and stable environment, and the lack of justification for her misconduct);

Jordan, 325 S.W.3d at 733 (holding evidence legally and factually sufficient to support

the best-interest finding when most of the best-interest factors weighed in favor of

termination). We overrule Mother’s third issue.

IV. Sufficient Evidence Supports Conservatorship Finding

In her fourth issue, Mother argues that the trial court abused its discretion by not

appointing her as possessory conservator of Jennifer and Jane because the evidence is

legally and factually insufficient to overcome the parental presumption of Texas Family

Code Section 153.191. Because the best-interest factors are also used in determining

conservatorship and because the best-interest factors weigh against appointing Mother

as possessory conservator, she has not shown that the trial court abused its discretion

by failing to appoint her as possessory conservator.

37 A. Standard of Review and Burden of Proof

The Houston Fourteenth Court of Appeals has set forth a succinct summary of

the standard of review and the burden of proof applicable to conservatorship

determinations:

The trial court’s conservatorship determinations are subject to review only for abuse of discretion[] and may be reversed only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Unlike termination findings, which must be supported by clear and convincing evidence, findings on conservator appointments must be supported by a preponderance of the evidence. See id. (“[A] finding that appointment of a parent as managing conservator would significantly impair the child’s physical health or emotional development is governed by a preponderance-of-the-evidence standard.”).

Under the abuse[-]of[-]discretion standard, legal and factual sufficiency of the evidence are not independent grounds of error[] but rather are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.—Houston [14th Dist.] 2002, no pet.). There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Id.

....

In determining conservatorship issues, the primary consideration of the trial court is the best interest of the child. Ayala v. Ayala, [387 S.W.3d 721, 730] (Tex. App.—Houston [1st Dist.] . . . 2011, no pet.). The Holley factors for determining the best interest of the child are applicable to conservatorship decisions. See id. (applying Holley factors to trial court’s decision on appointment of sole managing conservator).

In re A.H.A., No. 14-12-00022-CV, 2012 WL 1474414, at *11–12 (Tex. App.—

Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.).

38 B. Relevant Statutes

Texas’s public policy on conservatorship is to

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

(2) provide a safe, stable, and nonviolent environment for the child; and

(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex. Fam. Code Ann. § 153.001(a). The Family Code states that “[i]f a managing

conservator is appointed, the court may appoint one or more possessory conservators.”

Id. § 153.006(a) (emphasis added). Moreover, as noted in Mother’s fourth issue, Family

Code Section 153.191 provides a presumption regarding appointing parents as

possessory conservators:

The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.

Id. § 153.191.

C. The Trial Court’s Findings

Here, the termination order contains findings that “the appointment of [Mother]

as permanent managing conservator of [all five children] is not in [their] best interest

because the appointment would significantly impair [their] physical health or emotional

development.” The trial court appointed the Department as permanent managing

39 conservator for each of the five children.19 The trial court did not appoint a possessory

conservator for any of the five children.

With regard to Jennifer and Jane, the termination order also includes possessory-

conservatorship findings:

12.1 The [c]ourt finds and IT IS ORDERED that [Mother is] not appointed as possessory conservator of [Jennifer] and shall not have unsupervised possession or access[] because the [c]ourt finds such appointment would not be in the best interest of this child and that unsupervised possession or access by [Mother] would endanger the physical or emotional welfare of this child.

13.1 The [c]ourt finds and IT IS ORDERED that [Mother is] not appointed as possessory conservator of [Jane] and shall not have unsupervised possession or access[] because the [c]ourt finds such appointment would not be in the best interest of this child and that unsupervised possession or access by [Mother] would endanger the physical or emotional welfare of this child.

After both possessory-conservatorship findings, the trial court stated that Mother was

allowed to have continued visitation with Jennifer and Jane.

D. Analysis

The crux of Mother’s argument is that “[t]here is confusion in the record as to

whether . . . the [D]epartment was asking for Mother to be appointed possessory

Mother does not raise an issue challenging the appointment of the Department 19

as permanent managing conservator.

40 conservator of the children” because Rountree gave contradictory testimony.20

Although the record confirms that Rountree gave inconsistent testimony, which is set

forth in the background section above, she clarified on redirect that she had misheard

the prior conservatorship questions and that it was the Department’s belief that it was

not in Jennifer’s and Jane’s best interest for Mother to be appointed as their managing

or possessory conservator. Rountree explained that it was not in Jennifer’s and Jane’s

best interest for Mother to be appointed as their managing or possessory conservator

because she had not addressed any of the concerns that had brought her children into

care, had not worked her services, had not addressed her mental health, had continued

to place herself in dangerous situations, had not maintained housing or employment,

and had not demonstrated that she can be safe or protective of her children.

The remainder of Mother’s argument is that “the testimony showed that the

children were excited for visits and sad when it was time to leave. There was no

evidence presented to suggest that Mother’s possession or access would endanger the

physical or emotional welfare of the children.” Mother’s argument ignores the

overwhelming evidence that was unfavorable to her. As summarized in Rountree’s

explanation (which is set forth in the preceding paragraph) and as set forth in the

detailed Section 161.001(b)(2) best-interest analysis above, the same best-interest

20 Although Mother does not specifically limit her argument to Jennifer and Jane, Rountree was only unclear in her responses to questions related to the conservatorship of Jennifer and Jane; Rountree made clear that the Department was pursuing termination as to Eric, Matthew, and Gwen.

41 factors that weighed in favor of terminating Mother’s parental rights to Eric, Matthew,

and Gwen also weigh in favor of not appointing Mother as possessory conservator of

Jennifer and Jane. Moreover, Jennifer struggled with both physical and mental-health

issues, and Jane struggled with behavioral issues. Mother, however, had failed to take

Jennifer to her medical appointments for several months; had not demonstrated an

ability to adequately supervise her children; had delegated her parenting duties to Izzy,

who had punched Jane in the face and had received a family-violence charge; had failed

to keep Jennifer and Jane enrolled in school; and had failed to provide a safe and stable

home for the children.

Accordingly, we hold that the evidence is legally and factually sufficient to

support the trial court’s finding that appointment of Mother as possessory conservator

of Jennifer and Jane, as well as the other three children, is not in their best interest and

would endanger their physical or emotional welfare. See In re A.J., No. 12-23-00079-

CV, 2023 WL 5428281, at *4 (Tex. App.—Tyler Aug. 23, 2023, no pet.) (mem. op.)

(holding that evidence was sufficient to support finding that appointment of mother as

possessory conservator was not in child’s best interest and would endanger the child’s

physical or emotional welfare when mother had a history of substance abuse and other

concerning behaviors that resulted in her disregarding her parental responsibilities);

A.H.A., 2012 WL 1474414, at *13 (concluding that the trial court did not abuse its

discretion by failing to appoint mother possessory conservator of the five children to

42 which her parental rights were not terminated because there was evidence of drug use

and prior CPS history). We overrule Mother’s fourth issue.

V. Conclusion

Having overruled Mother’s four issues, we affirm the trial court’s judgment

terminating Mother’s parental rights to Eric, Matthew, and Gwen and denying Mother

possessory conservatorship of Jennifer and Jane.

/s/ Dabney Bassel

Dabney Bassel Justice

Delivered: January 9, 2025