In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00202-CV
IN THE INTEREST OF K.M.E., A CHILD
On Appeal from County Court No. 2 Randall County, Texas Trial Court No. 82152-L2, Honorable Matthew C. Martindale, Presiding
November 19, 2024 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant, C.T. (Mother), appeals from an order terminating her parental rights to
her daughter, K.M.E.1 Appellee is the Texas Department of Family and Protective
Services. Via a single issue, Mother challenges whether sufficient evidence supports the
trial court’s finding that termination of parental rights is in K.M.E.’s best interest. We
affirm.
1 To protect K.M.E.’s privacy, we will refer to C.T. as “Mother,” and the child by initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). The parental rights of K.M.E.’s father, K.E., were previously terminated in the same proceeding but he did not appeal the final order. Background
Before turning to the relevant facts, we address the state of our record. Evidence
in this case was initially heard before an associate judge, who signed an order terminating
Mother’s parental rights. Mother sought de novo review before the referring court. At a
hearing in May 2024, the referring court received no new evidence, stating it had reviewed
the evidence from the associate judge’s hearing. See TEX. FAM. CODE ANN. § 201.015(c)
(authorizing referring court to consider associate judge’s record). No party objected to
this procedure. Because both court and counsel relied on the final hearing record during
the de novo proceeding and on appeal, we conclude this evidence was constructively
admitted. See C.G. v. Tex. Dep’t of Family & Prot. Servs., No. 03-22-00019-CV, 2022
Tex. App. LEXIS 3885, at *11–13 (Tex. App.—Austin June 9, 2022, pet. denied) (mem.
op.); In re J.R., No. 07-18-00240-CV, 2018 Tex. App. LEXIS 7862, at *9 (Tex. App.—
Amarillo Sept. 26, 2018, pet. denied) (mem. op.) (concluding “evidence that is not formally
admitted at trial but nonetheless treated by the trial court and parties as if it were is, for
all practical purposes, admitted.” (cleaned up)).
This case began with a medical crisis. Hours after K.M.E.’s birth in October K.M.E.
began suffering withdrawal symptoms; doctors placed her in the neonatal intensive care
unit for critical treatment. Despite medical advice that the infant required hospitalization
during this period of withdrawal, Mother and the child’s father attempted to remove her.
The Department intervened, taking custody of K.M.E. and initiating termination
proceedings.
2 Mother's service plan required maintaining a drug-free lifestyle. Though Mother
tested negative several times in late 2022 and 2023, she tested positive for
methamphetamine in October 2022, May 2023, June 2023, August 2023, and before trial
in March 2024.2 The March test came after Mother had missed seven required
screenings over four months, including tests specifically ordered by the associate judge.
Department policy treats these missed tests as presumptively positive.
For the Department, this pattern of drug use and evidence of missed testing
appointments raised serious concerns about Mother’s ability to care for K.M.E., a toddler
who would be dependent on her care if allowed to return. As the Department’s
caseworker testified, ongoing drug use would impair Mother’s ability to safely supervise
her child, creating continuing danger to K.M.E.’s physical and mental well-being.
Mother’s compliance with other service plan requirements was mixed. Mother
attended most scheduled visitations with the child. Though she completed parenting
classes, domestic violence counseling, and psychological assessments, she struggled to
maintain stable housing and employment. During the eighteen-month case, Mother
moved multiple times—from Father’s home to domestic violence shelters in Amarillo and
Dumas, then to an acquaintance’s home, and finally to a 500-square-foot efficiency
apartment in February 2024. According to the Department, Mother failed to show six
months of stable housing as required under the plan.
2 The record contains some contrary evidence regarding drug use, however. Mother’s counselor at Daily Referral Services, Gage Paulk, testified that Mother tested negative for drugs three times between August and October 2023. These were simple urinalysis tests rather than laboratory screenings and did not include the period between November 2023 and trial in March 2024. Paulk described Mother as diligent in attending sessions, completing homework, and developing a relapse prevention plan.
3 Mother’s employment history showed similar instability. Initially unable to work due
to medical issues, Mother later found work at a laundry. She lost that position in fall 2023
but was rehired a few months later. Though she was employed at the time of trial, she
did not provide proof of income to the Department.
Department caseworker Payton Sim testified that K.M.E. has remained in the same
foster home since her removal, where she has thrived. She is meeting developmental
milestones and has overcome her early medical challenges. The Department initially
sought adoption either by K.M.E.’s foster parents or her maternal grandmother,3 though
the Department later ruled out the grandmother after conducting a home study.
Analysis
Mother challenges the sufficiency of the evidence supporting the trial court’s finding
that termination of her parental rights served K.M.E.’s best interest. The applicable
standards for reviewing the evidence are discussed in our opinion in In re A.M., No. 07-
21-00052-CV, 2021 Tex. App. LEXIS 5447 (Tex. App.—Amarillo July 8, 2021, pet. denied)
(mem. op.). As factfinder, the referring court was the exclusive judge of the credibility of
the witnesses and the weight given their testimony. In re H.E.B., No. 07-17-00351-CV,
2018 Tex. App. LEXIS 885, at *5 (Tex. App.—Amarillo Jan. 31, 2018, pet. denied) (mem.
op.).
3 Mother testified that allowing the child to reside with the grandmother would be a better placement
than living with Mother. This may have been due to Mother’s work responsibilities, which alternated between daytime and nighttime shifts.
4 Courts frequently consider the factors announced in Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex.1976), when evaluating a child’s best interest.4 Not all factors need
support a termination finding, however. In re C.H., 89 S.W.3d 17, 27 (Tex. 2005) (“The
absence of evidence about some of these considerations would not preclude a fact-finder
from reasonably forming a strong conviction or belief that termination is in the child’s best
interest, particularly if the evidence were undisputed that the parental relationship
endangered the safety of the child.”). Unchallenged evidence supporting the predicate
ground findings for termination can support the trial court’s best-interest finding. In re
M.D., No. 07-21-00149-CV, 2021 Tex. App. LEXIS 7217, at *1–2 (Tex. App.—Amarillo
Aug. 30, 2021, pet. denied) (per curiam, mem. op.); see also In re T.C., No. 07-18-00080-
CV, 2018 Tex. App. LEXIS 6769, at *13 (Tex. App.—Amarillo Aug. 23, 2018, pet. denied)
(mem. op.) (noting that a parent who opts to forgo a challenge to predicate ground findings
tacitly concedes that sufficient evidence supports those findings). We have held that
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00202-CV
IN THE INTEREST OF K.M.E., A CHILD
On Appeal from County Court No. 2 Randall County, Texas Trial Court No. 82152-L2, Honorable Matthew C. Martindale, Presiding
November 19, 2024 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Appellant, C.T. (Mother), appeals from an order terminating her parental rights to
her daughter, K.M.E.1 Appellee is the Texas Department of Family and Protective
Services. Via a single issue, Mother challenges whether sufficient evidence supports the
trial court’s finding that termination of parental rights is in K.M.E.’s best interest. We
affirm.
1 To protect K.M.E.’s privacy, we will refer to C.T. as “Mother,” and the child by initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). The parental rights of K.M.E.’s father, K.E., were previously terminated in the same proceeding but he did not appeal the final order. Background
Before turning to the relevant facts, we address the state of our record. Evidence
in this case was initially heard before an associate judge, who signed an order terminating
Mother’s parental rights. Mother sought de novo review before the referring court. At a
hearing in May 2024, the referring court received no new evidence, stating it had reviewed
the evidence from the associate judge’s hearing. See TEX. FAM. CODE ANN. § 201.015(c)
(authorizing referring court to consider associate judge’s record). No party objected to
this procedure. Because both court and counsel relied on the final hearing record during
the de novo proceeding and on appeal, we conclude this evidence was constructively
admitted. See C.G. v. Tex. Dep’t of Family & Prot. Servs., No. 03-22-00019-CV, 2022
Tex. App. LEXIS 3885, at *11–13 (Tex. App.—Austin June 9, 2022, pet. denied) (mem.
op.); In re J.R., No. 07-18-00240-CV, 2018 Tex. App. LEXIS 7862, at *9 (Tex. App.—
Amarillo Sept. 26, 2018, pet. denied) (mem. op.) (concluding “evidence that is not formally
admitted at trial but nonetheless treated by the trial court and parties as if it were is, for
all practical purposes, admitted.” (cleaned up)).
This case began with a medical crisis. Hours after K.M.E.’s birth in October K.M.E.
began suffering withdrawal symptoms; doctors placed her in the neonatal intensive care
unit for critical treatment. Despite medical advice that the infant required hospitalization
during this period of withdrawal, Mother and the child’s father attempted to remove her.
The Department intervened, taking custody of K.M.E. and initiating termination
proceedings.
2 Mother's service plan required maintaining a drug-free lifestyle. Though Mother
tested negative several times in late 2022 and 2023, she tested positive for
methamphetamine in October 2022, May 2023, June 2023, August 2023, and before trial
in March 2024.2 The March test came after Mother had missed seven required
screenings over four months, including tests specifically ordered by the associate judge.
Department policy treats these missed tests as presumptively positive.
For the Department, this pattern of drug use and evidence of missed testing
appointments raised serious concerns about Mother’s ability to care for K.M.E., a toddler
who would be dependent on her care if allowed to return. As the Department’s
caseworker testified, ongoing drug use would impair Mother’s ability to safely supervise
her child, creating continuing danger to K.M.E.’s physical and mental well-being.
Mother’s compliance with other service plan requirements was mixed. Mother
attended most scheduled visitations with the child. Though she completed parenting
classes, domestic violence counseling, and psychological assessments, she struggled to
maintain stable housing and employment. During the eighteen-month case, Mother
moved multiple times—from Father’s home to domestic violence shelters in Amarillo and
Dumas, then to an acquaintance’s home, and finally to a 500-square-foot efficiency
apartment in February 2024. According to the Department, Mother failed to show six
months of stable housing as required under the plan.
2 The record contains some contrary evidence regarding drug use, however. Mother’s counselor at Daily Referral Services, Gage Paulk, testified that Mother tested negative for drugs three times between August and October 2023. These were simple urinalysis tests rather than laboratory screenings and did not include the period between November 2023 and trial in March 2024. Paulk described Mother as diligent in attending sessions, completing homework, and developing a relapse prevention plan.
3 Mother’s employment history showed similar instability. Initially unable to work due
to medical issues, Mother later found work at a laundry. She lost that position in fall 2023
but was rehired a few months later. Though she was employed at the time of trial, she
did not provide proof of income to the Department.
Department caseworker Payton Sim testified that K.M.E. has remained in the same
foster home since her removal, where she has thrived. She is meeting developmental
milestones and has overcome her early medical challenges. The Department initially
sought adoption either by K.M.E.’s foster parents or her maternal grandmother,3 though
the Department later ruled out the grandmother after conducting a home study.
Analysis
Mother challenges the sufficiency of the evidence supporting the trial court’s finding
that termination of her parental rights served K.M.E.’s best interest. The applicable
standards for reviewing the evidence are discussed in our opinion in In re A.M., No. 07-
21-00052-CV, 2021 Tex. App. LEXIS 5447 (Tex. App.—Amarillo July 8, 2021, pet. denied)
(mem. op.). As factfinder, the referring court was the exclusive judge of the credibility of
the witnesses and the weight given their testimony. In re H.E.B., No. 07-17-00351-CV,
2018 Tex. App. LEXIS 885, at *5 (Tex. App.—Amarillo Jan. 31, 2018, pet. denied) (mem.
op.).
3 Mother testified that allowing the child to reside with the grandmother would be a better placement
than living with Mother. This may have been due to Mother’s work responsibilities, which alternated between daytime and nighttime shifts.
4 Courts frequently consider the factors announced in Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex.1976), when evaluating a child’s best interest.4 Not all factors need
support a termination finding, however. In re C.H., 89 S.W.3d 17, 27 (Tex. 2005) (“The
absence of evidence about some of these considerations would not preclude a fact-finder
from reasonably forming a strong conviction or belief that termination is in the child’s best
interest, particularly if the evidence were undisputed that the parental relationship
endangered the safety of the child.”). Unchallenged evidence supporting the predicate
ground findings for termination can support the trial court’s best-interest finding. In re
M.D., No. 07-21-00149-CV, 2021 Tex. App. LEXIS 7217, at *1–2 (Tex. App.—Amarillo
Aug. 30, 2021, pet. denied) (per curiam, mem. op.); see also In re T.C., No. 07-18-00080-
CV, 2018 Tex. App. LEXIS 6769, at *13 (Tex. App.—Amarillo Aug. 23, 2018, pet. denied)
(mem. op.) (noting that a parent who opts to forgo a challenge to predicate ground findings
tacitly concedes that sufficient evidence supports those findings). We have held that
evidence of ongoing parental drug use is particularly significant because past conduct is
often prologue. In re A.M., Nos. 07-18-00047-CV, 07-18-00048-CV, 2018 Tex. App.
LEXIS 3688, at *7 (Tex. App.—Amarillo May 23, 2018, pet. denied) (per curiam, mem.
Mother’s drug use throughout this case supports the best interest finding. Her
prenatal methamphetamine use caused K.M.E.’s withdrawal symptoms. Despite
4 The Holley factors are: (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) 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 which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d at 371–72.
5 treatment, she tested positive five more times during the case, including just before trial.
Her seven missed drug tests permit an inference that she was avoiding detection of
continued drug use. See In re A.M.L., No. 04-19-00422-CV, 2019 Tex. App. LEXIS 10703,
at *9 (Tex. App.—San Antonio Dec. 11, 2019, pet. denied) (mem. op.).
Though Mother completed other service requirements, she continued using
methamphetamine even while she knew her parental rights hung in the balance. This
“indicates an inability or unwillingness to prioritize the burdens and responsibilities of
parenthood ahead of the desire for intoxication, an impaired condition that is not
compatible with the care of a very young child like this one.” In re A.J.D.-J., 667 S.W.3d
813, 825 (Tex. App.—Houston [1st Dist.] 2023, no pet.). Mother’s drug use impacts
multiple Holley factors, particularly given K.M.E.’s complete dependence on her
caregiver.5 See In re O.J.C., No. 04-23-00126-CV, 2023 Tex. App. LEXIS 5944, at *7–8
(Tex. App.—San Antonio Aug. 9, 2023, pet. denied) (mem. op.).
Meanwhile, K.M.E. has thrived in her foster placement, meeting developmental
milestones and overcoming her early medical challenges. The Department’s plans for
adoption offer K.M.E. the permanence she needs. Considering the evidence holistically,
we conclude the evidence was factually sufficient to support the best-interest finding. As
such, it was legally sufficient as well. See In re A.J.R., No. 03-19-00661-CV, 2020 Tex.
App. LEXIS 2090, at *23 (Tex. App.—Austin Mar. 12, 2020, no pet.) (mem. op.).
5 Illegal drug use implicates several Holley factors, including the child’s present and future
emotional and physical needs, present and future emotional and physical dangers, as well as Mother’s parental abilities, home stability, and suggests acts or omissions which may indicate an improper parent- child relationship. See In re P.W., No. 10-22-00259-CV, 2023 Tex. App. LEXIS 32, at *8 (Tex. App.—Waco Jan. 4, 2023, pet. denied) (mem. op.).
6 Conclusion
Having overruled Mother’s issue on appeal, we affirm the final order of the trial
court.
Lawrence M. Doss Justice