In the Interest of K.S., a Minor Child v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: April 10, 2025
• Docket: 01-24-00781-CV
• Status: Published

Opinion

Opinion issued April 10, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00781-CV ——————————— IN THE INTEREST OF K.S., A Minor Child

On Appeal from the 312th District Court Harris County, Texas Trial Court Case No. 2020-44859

MEMORANDUM OPINION

This is an appeal from the trial court’s termination of the mother’s rights to

K.S., who was five years old when the court rendered judgment. The trial court

found that the mother constructively abandoned K.S. and failed to comply with

provisions of a court order that specifically established the actions necessary to

obtain return of K.S. The court also found that termination of the mother’s parental rights was in K.S.’s best interest. On appeal, the mother raises three issues,

challenging (1) the propriety of the motion to modify and for termination of

parental rights, (2) the sufficiency of the evidence to support the trial court’s

finding that the mother constructively abandoned K.S., and (3) the appointment of

the Texas Department of Family and Protective Services (the “Department”) as the

sole managing conservator of K.S.

We affirm.

Background

K.S. was born in July 2019, and the Department took possession of her in

July 2020 after receiving a referral alleging neglectful supervision by her parents.

The referral alleged that the mother was abusing drugs, which were left within

reach of K.S., that the mother threatened to physically abuse K.S. in text messages

to K.S.’s father, and that both parents neglected K.S.’s needs for food and hygiene.

In July 2020, the Department filed an original petition for conservatorship and

termination of the parent-child relationship, seeking, among other things,

appointment as K.S.’s managing conservator, appointment of K.S.’s parents as

possessory conservators or, in the alternative, termination of their parental rights to

K.S. In June 2022, the matter was resolved by an agreed decree. The trial court

appointed the Department as K.S.’s sole managing conservator, appointed K.S.’s

mother as possessory conservator, and ordered supervised visitation between K.S.

2 and her mother for one hour twice a month, plus two hours weekly at church. The

order provided that K.S. was not to be removed from her current placement

without a court order. In addition, the trial court found K.S. would continue in care

and that the court would “continue to review the placement, progress and welfare

of the child.”

After entry of the June 2022 order, the Department continued to offer the

mother services and maintained concurrent permanency goals for K.S. of adoption

and family reunification by the end of 2022. To achieve family reunification, the

Department’s August 2022 family service plan required the mother to complete

actions relating to substance abuse testing and treatment (including working a

twelve-step program with a sponsor), psychological assessment and treatment

(including psychiatric medication management), obtaining and maintaining stable

housing and employment, attending visitation with K.S., supporting her child,

refraining from criminal activity, and providing the Department with information.

The plan indicated that failure to submit to drug testing would be treated as a

positive test result.

From June 2022 through July 2023, the mother attended visitation with K.S.

23 times and cancelled or missed visits 7 times. Department caseworkers reported

that the mother demonstrated “some knowledge of parenting skills during family

visits as she sits and interacts with the child appropriately, assist[s] her with

3 mealtime, and responds to her appropriately.” The mother worked at Taco Bell

from September 2022 through early October 2022, earning a little less than $750 in

total.

In July 2022, the mother entered outpatient substance abuse treatment, but

she was unsuccessfully discharged in September 2022. In August and December

2022 and in February 2023 and June 2023, urine or hair follicle drug tests were

positive for cocaine and its metabolites (including benzoylecgonine), marijuana,

methamphetamines, and alprazolam.1 The mother failed to appear for required drug

testing 16 times from September 2022 through July 2023. Sometime in

approximately February 2023, the mother told a provider that she had relapsed and

wanted to return to drug treatment to “stay clean.” But she failed to pursue

treatment or communicate with providers who reached out to her for scheduling

and assessment. Despite encouragement from providers and caseworkers, the

mother repeatedly declined and refused to pursue inpatient substance abuse

treatment.

The mother was diagnosed with major depressive disorder, anxiety, and

bipolar disorder, and she had prescriptions for Prozac, Atarax, and Seroquel to treat

these conditions. The mother was successfully discharged from therapy that

1 Before the June 2022 order, from January through May 2022, the mother had several consecutive negative urine drug tests and two hair follicle tests that were positive for cocaine and methamphetamine. 4 covered domestic violence, anger management, and individual therapy, and she

attended some individual therapy in August and September 2022. The mother told

the caseworker that she was engaging in individual therapy with another provider,

but the caseworker noted that the mother’s attendance was inconsistent.

In July 2023, the Department filed a motion to modify the conservatorship

over K.S. and for involuntary termination of her mother’s parental rights.2 The

pleading alleged that the mother had committed one or more of the following acts

or omissions: (1) endangered K.S.; (2) executed an affidavit of relinquishment; (3)

constructively abandoned K.S.; and (4) failed to comply with a court order that

specifically established the actions necessary for her to reunify with K.S.3 After the

Department filed its motion to modify, the mother missed or failed to appear for 21

drug tests from August 2023 to August 2024. The mother “repeatedly [showed] the

inability to provide a safe, drugfree environment while having” possession of a

vulnerable child. She “struggl[ed] to meet the basic needs of the child which

includes clothing and financial resources.” In October 2023, the mother failed

urine and hair follicle drug tests.

After the July 2023 motion, the mother’s visits with K.S. also became

inconsistent. The mother missed two visits with K.S. prior to the June 2022 order.

2 The Department sought and obtained termination of K.S.’s father’s parental rights, but he has not appealed. 3 See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (K), (N), (O) (predicate acts). 5 But between July 2022 and August 2024, the mother canceled or failed to appear

for 23 visits. The Department had no information about the mother’s employment,

except her statement to a caseworker in March 2024 that she had been hired by a

fast-food restaurant.

In early September 2024, the mother signed an irrevocable mediated

settlement agreement in which she agreed to execute an affidavit of voluntary

relinquishment of her parental rights to K.S. and that the Department would

continue as sole managing conservator of K.S. The mother did not, however,

execute an affidavit of voluntary relinquishment.

In mid-September 2024, the trial court held a final hearing on the

Department’s motion to modify and petition for termination of the mother’s rights.

The caseworker, who had been assigned to K.S.’s case about five months earlier,

testified that the mother had attended five visitations in 2024 and had brought K.S.

clothes once in June 2024. The caseworker acknowledged an apparent bond

between K.S. and her mother, but she opined that the mother had not shown a

commitment to building a relationship with K.S. based on her inconsistent

visitation, continued drug use, and failure to comply with the family service plan,

which had been provided to the mother, filed with the court, and made an order of

the court.

6 The caseworker testified that the mother did not complete individual

counseling or substance abuse treatment, did not provide proof of stable housing

and income, failed to submit to drug testing since April 2024, and did not engage

with a twelve-step program like Narcotics Anonymous despite her history of using

methamphetamines and cocaine. The caseworker acknowledged that she had not

visited or tried to visit the mother’s home, saying she had not received any

information about whether it was a safe and stable home for K.S. She said the

mother had recently told her that she was unemployed.

The caseworker testified that termination of the mother’s rights was in

K.S.’s best interest because the mother had not shown that she was “stable and able

to care for” K.S., who had been living in foster care with the family that adopted

her biological sister since April 2023. According to the caseworker, the foster

family was meeting K.S.’s needs and wanted to adopt her. She said K.S. had

recently started kindergarten and was not in special education.

The Child Advocates volunteer testified that K.S. was “doing great” in her

foster placement where she had “a stable and safe environment,” “an adorable

room,” “toys,” a “wonderful school,” and sibling “who she’s very bonded to.” She

believed it was in K.S.’s best interest for the mother’s rights to be terminated and

for K.S. to be adopted by her caregivers. She expressed concern about the mother’s

inconsistent visitation and its effect on K.S., as well as the mother’s failure to

7 provide material support to K.S. The volunteer testified that she had tried multiple

times to schedule a home visit with the mother, who did not respond. She believed

that the mother had not done much to complete the recommended services and

could not meet K.S.’s needs. She testified that termination of the mother’s rights

was in K.S.’s best interest because she “is at a young and vulnerable age and has

needs. . . . food, clothing, stable environment, medical care,” that was were not met

by K.S.’s mother. The volunteer said that Child Advocates would not recommend

reunification with the mother in the absence of negative drug tests and six months

of stable housing and employment that would demonstrate the mother’s ability to

provide K.S. with a safe and stable environment.

The foster mother testified that she had been caring for K.S. since April

2023. The foster father described K.S.’s personality: “She is a little love bug. She

loves everyone. She runs up and hugs people. She loves to eat, and she loves to

antagonize her older sister. Those are the top two, two or three things that she

loves.” He also called her “highly intelligent.” He testified that he would like to

adopt K.S.

The trial court entered an order finding that there had been a material and

substantial change in circumstances since entry of the June 2022 agreed decree.

The court found by clear and convincing evidence that the mother committed the

predicate acts under Family Code Section 161.001(b)(1)(N) and (O) by

8 constructively abandoning K.S. and failing to comply with the provisions of a

court order that specifically established the actions necessary for her to obtain

return of K.S., and that termination of the mother’s parental rights was in K.S.’s

best interest. The mother appealed.

Analysis

I. Sufficiency of the Evidence

The mother argues that the evidence is legally and factually insufficient to

support the trial court’s finding that she constructively abandoned K.S. See TEX.

FAM. CODE § 161.001(b)(1)(N).

When the Department seeks to terminate parental rights under section

161.001 of the Family Code, it must establish by clear and convincing evidence

that the parent committed one or more of the statute’s enumerated acts or

omissions that justify termination, and also that termination is in the best interest of

the child. TEX. FAM. CODE § 161.001(b). 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 355,

362 (Tex. 2003).

Here, the trial court found that the mother committed two predicate acts—

constructive abandonment, TEX. FAM. CODE § 161.001(b)(1)(N), and failure to

comply with the provisions of a court order that specifically established the actions

9 necessary for the mother to obtain return of the child, TEX. FAM. CODE

§ 161.001(b)(1)(O)—and that termination was in K.S.’s best interest. The mother

challenged the § 161.001(b)(1)(N) finding, but she did not challenge the trial

court’s finding under § 161.001(b)(1)(O) or the best-interest finding.

Because the mother did not challenge both statutory predicate grounds for

termination, we need not review the merits of her challenge to the constructive

abandonment finding. See In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014) (“[C]lear

and convincing proof of any one ground will support a judgment terminating

parental rights, if similar proof also exists that termination is in the child’s best

interest.”); see In re J.M.H., No. 01-15-00734-CV, 2015 WL 8929569, at *3 (Tex.

App.—Houston [1st Dist.] Dec. 15, 2015, no pet.) (mem. op.) (declining to review

challenged predicate finding when parent did not challenge all predicate findings

on appeal); Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85,

102 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (same).

We overrule this issue.4

4 Although the mother did not challenge the section 161.001(b)(1)(O) or best interest findings, we note that clear-and-convincing evidence supports both findings. See In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (defining clear-and- convincing evidence); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (setting forth best-interest factors); see also In re R.J.G., 681 S.W.3d 370, 381 (Tex. 2023) (explaining that termination pursuant to section 161.001(b)(1)(O) requires failure to comply with material requirement of court order). The evidence showed K.S.’s mother repeatedly failed to comply with material requirements of the court’s order, by failing to: attend visitation, refrain from using illegal drugs, submit to drug tests, engage in therapy and a twelve-step program to address 10 II. Sole managing conservator

The mother also argues that the trial court abused its discretion by

appointing the Department sole managing conservator because the termination of

her parental rights was improper. Conservatorship determinations are reviewed for

an abuse of discretion and will be reversed only if the decision is arbitrary and

unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007).

The Family Code provides that if, as in this case, the trial court terminates

the parent-child relationship, “the court shall appoint a suitable, competent adult,

the Department of Family and Protective Services, or a licensed child-placing

agency as managing conservator of the child.” TEX. FAM. CODE § 161.207(a); see

In re J.D.G., 570 S.W.3d 839, 856 (Tex. App.—Houston [1st Dist.] 2018, pet.

denied). An order terminating the parent-child relationship divests a parent of legal

rights and duties with respect to the child. See TEX. FAM. CODE § 161.206(b). Once

we overrule a parent’s challenge to an order terminating her parental rights, the

trial court’s appointment of the Department as sole managing conservator may be

considered a “consequence of the termination.” J.D.G., 570 S.W.3d at 856.

mental health concerns, and obtain gainful employment that leads to financial stability. See R.J.G., 681 S.W.3d at 381. As to best interest, though K.S. is too young to express her desires, the evidence showed that she was well bonded in her current foster placement, which includes her biological sibling, and that her foster parents, who are able to meet all of her needs, wish to adopt her. See Holley, 544 S.W.2d at 371–72. The evidence also showed K.S.’s mother’s inconsistent visitation, drug use, failure to address her mental health issues, and financial instability. See id. 11 Having overruled the mother’s challenge to the order terminating her

parental rights, we conclude that the trial court did not abuse its discretion by

appointing the Department sole managing conservator of K.S. We overrule this

issue.

In light of this conclusion, we do not need to address the mother’s issue

regarding the Department’s motion to modify conservatorship. See TEX. R. APP. P.

47.1.

Conclusion

We affirm the trial court’s decree.

Susanna Dokupil Justice

Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.