In the Interest of M.A.M, M.X.M., and M.J.M., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 19, 2025
• Docket: 04-24-00695-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-24-00695-CV

IN THE INTEREST OF M.A.M, M.X.M., AND M.J.M., Children

From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2023PA00975 Honorable Raul Perales, Judge Presiding

Opinion by: Lori I. Valenzuela, Justice

Sitting: Irene Rios, Justice Lori I. Valenzuela, Justice Velia J. Meza, Justice

Delivered and Filed: March 19, 2025

AFFIRMED

Mother appeals the trial court’s order terminating her parental rights to her children,

M.A.M. (born 2011), M.X.M. (born 2013), and M.J.M. (born 2021). 1 In two appellate issues,

Mother argues the evidence is legally and factually insufficient to support the trial court’s

termination findings under Texas Family Code section 161.001(b)(1)(D) and (O). Mother does not

challenge the trial court’s finding that termination was in the children’s best interest. We affirm.

1 To protect the privacy of the minor children, we use initials to refer to the children; we refer to the children’s biological parents as Mother and Father. TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 04-24-00695-CV

BACKGROUND

On June 27, 2023, the Texas Department of Family and Protective Services (the

“Department”) filed its original petition to terminate Mother and Father’s parental rights to

M.A.M, M.X.M., and M.J.M. 2 The Department created a service plan that required Mother to,

among other things, participate in drug testing and drug counseling, individual counseling, and a

parenting course; engage in a psychological evaluation and visitation; and provide proof of

employment and stable and appropriate housing. The Department ultimately pursued termination

of Mother’s parental rights.

A bench trial commenced on June 4, 2024, approximately a year after the children’s

removal, and continued on August 26, 2024. During the trial, the trial court heard testimony from

seven witnesses: (1) the Department’s investigator, David Lopez; (2) the first Department

caseworker assigned to the case, Benito Marquez; (3) the second Department caseworker assigned

to the case, Krista Kelley; (4) the Court Appointed Special Advocate (“Advocate”); (5) the

children’s aunt and current placement (“Aunt”); (6) Mother’s mother (“Grandmother”); and (7)

Mother. After the trial, the court signed an order terminating Mother’s parental rights pursuant to

section 161.001(b)(1)(D) and (O) and found that termination of Mother’s parental rights was in

the best interest of the children.

On appeal, Mother challenges the legal and factual sufficiency of the evidence supporting

the trial court’s order terminating her rights pursuant to subsections (D) and (O).

2 During trial, Father voluntarily relinquished his parental rights to all three children and is not a party to this appeal. Therefore, we only recite the facts relevant to Mother’s appellate issues and necessary for our disposition. See TEX. R. APP. P. 47.1.

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STANDARD OF REVIEW

The involuntary termination of a natural parent’s rights implicates fundamental

constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and

powers normally existing between them, except for the child’s right to inherit from the parent.” In

re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation

marks omitted). “As a result, appellate courts must strictly scrutinize involuntary termination

proceedings in favor of the parent.” Id. The Department has the burden to prove, by clear and

convincing evidence, both that a statutory ground existed to terminate Mother’s parental rights,

and that termination was in the best interest of the children. TEX. FAM. CODE § 161.206; In re A.V.,

113 S.W.3d 355, 362 (Tex. 2003). “‘Clear and convincing evidence’ means the measure or degree

of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth

of the allegations sought to be established.” TEX. FAM. CODE § 101.007; In re S.J.R.-Z., 537

S.W.3d at 683. Because Mother does not challenge the trial court’s finding that termination was

in the children’s best interest, we focus our analysis on the statutory grounds presented in the trial

court’s order. See TEX. R. APP. P. 47.1.

When reviewing the sufficiency of the evidence supporting a trial court’s order of

termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263

(Tex. 2002). To determine whether the Department presented clear and convincing evidence, a

legal sufficiency review requires us to “look at all the evidence in the light most favorable to the

finding to determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.” Id. at 266. We “assume that the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could do so.” In re R.S.-T., 522 S.W.3d 92,

98 (Tex. App.—San Antonio 2017, no pet.). “A corollary to this requirement is that a court should

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

incredible.” In re J.F.C., 96 S.W.3d at 266. Nevertheless, “we may not simply disregard

undisputed facts that do not support the finding; to do so would not comport with the heightened

burden of proof by clear and convincing evidence.” In re S.L.M., 513 S.W.3d 746, 748 (Tex.

App.—San Antonio 2017, no pet.). If a reasonable factfinder could form a firm belief or conviction

that the matter that must be proven is true, then the evidence is legally sufficient. Id. at 747.

In contrast, in conducting a factual sufficiency review, we must review and weigh all the

evidence, including the evidence that is contrary to the trial court’s findings. In re J.O.A., 283

S.W.3d 336, 345 (Tex. 2009). We consider whether the disputed evidence is such that a reasonable

factfinder could not have resolved it in favor of the challenged finding. In re J.F.C., 96 S.W.3d at

266. The evidence is factually insufficient only if “in light of the entire record, the disputed

evidence that a reasonable factfinder could not have credited in favor of the finding is so significant

that a factfinder could not reasonably have formed a firm belief or conviction.” Id.

In both legal and factual sufficiency review, the trial court, as factfinder, is the sole judge

of the weight and credibility of the evidence. In re A.F., No. 04-20-00216-CV, 2020 WL 6928390,

at *2 (Tex. App.—San Antonio Nov. 25, 2020, no pet.) (mem. op.). We must defer to the

factfinder’s resolution of disputed evidentiary issues and cannot substitute our judgment for that

of the factfinder. See, e.g., In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (factual

sufficiency); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (legal sufficiency).

As Mother does not challenge the trial court’s finding that termination was in the best

interest of the children, if either of the predicate grounds for termination found in the trial court’s

order is supported by legally and factually sufficient evidence, we will affirm the trial court’s order.

See In re A.L.S., 660 S.W.3d 257, 263 (Tex. App.—San Antonio 2022, pet. denied) (“Where, as

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here, the trial court terminates a parent’s rights on multiple predicate grounds, we may generally

affirm on any one ground.”).

APPLICABLE LAW AND ANALYSIS

We first examine Mother’s challenge to the trial court’s finding under subsection (D). See

TEX. FAM. CODE § 161.001(b)(1)(D). Subsection (D) allows a trial court to terminate parental

rights if it finds by clear and convincing evidence that the parent has “knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which endanger the physical

or emotional well-being of the child.” Id. Under this predicate ground, the trial court examines

“evidence related to the environment of the children to determine if the environment was the source

of endangerment to the children’s physical or emotional well-being.” In re J.T.G., 121 S.W.3d

117, 125 (Tex. App.—Fort Worth 2003, no pet.). “Environment” refers to the acceptability of the

child’s living conditions and a parent’s conduct in the home. In re S.R., 452 S.W.3d 351, 360 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied). “A child is endangered when the environment

creates a potential for danger that the parent is aware of but consciously disregards.” Id. A parent

does not need to know for certain that the child is in an endangering environment. In re R.S.-T.,

522 S.W.3d at 109. Awareness of the potential for danger is sufficient. Id. The relevant period for

review of the environment supporting termination under subsection (D) is before the Department

removes the child. In re J.W., 645 S.W.3d 726, 749 (Tex. 2022) (“The suitability of a child’s living

conditions and the conduct of parents or others in the home are relevant to a Subsection (D)

inquiry.”).

Turning to Mother’s specific arguments, she contends the evidence presented at trial is

legally and factually insufficient to establish she knew or had any reason to know the children may

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be in danger. Mother posits that the evidence presented by the Department is not clear and

convincing but rather “vague and conclusory at best.” We disagree.

At trial, in addition to admitting seven exhibits—including Mother’s service plan—the trial

court heard the following testimony from the seven witnesses.

First, Lopez testified that the circumstances that led to the Department’s removal in this

case was “active and ongoing domestic violence, noncooperation by [Mother], and concerns for

mental health on both sides for both [parents].” He also testified: that Mother engaged with him in

his role with the Department, and that the children appeared to be “ok” when removed; and that

Father admitted to assaulting Mother, which resulted in visible injuries to Mother, and that, as a

result of Father’s conduct, Father had been charged with aggravated assault with a deadly weapon.

Second, Marquez, who was the Department caseworker assigned to the case when the

children were removed and until April 5, 2024, testified that Mother’s service plan required her to,

among other things, engage in parenting classes, a drug assessment, a psycho-social evaluation,

counseling, a psychological evaluation, visitation, a domestic violence class, and provide proof of

stable housing and employment. During his time on the case, Mother was working towards

completing most of her services and was attending all her allowed visitations with the children

without concern. Marquez told the court that one of the children, M.A.M., did not want to attend

the visits with Mother. Marquez further testified that Mother submitted to drug testing but would

not participate in hair follicle testing due to her religious beliefs and that both parents had to make

progress in their individual counseling before they began couples counseling. According to

Marquez, Mother never made sufficient progress in her individual counseling. Marquez also

explained that despite domestic violence in the home, Mother remained married to Father, and

Mother continued to live with Father after he assaulted her. Regarding placement of the children,

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M.A.M. was placed with a maternal aunt and uncle, and M.X.M. and M.J.M. were with their

paternal grandparents. Marquez told the court that all three children were doing well in their current

placements. Finally, Marquez testified that he did not believe the children’s reunification with

Mother was appropriate as Mother and Father are first cousins, and their relationship was relevant

to whether or not the Department would be seeking reunification. See TEX. PENAL CODE §

25.02(a)(6) (criminalizing sexual intercourse between first cousins).

Third, Kelley, the caseworker assigned to the case after Marquez’s departure in April, was

next to take the stand. At that time, Mother and Father were still living together. Regarding

Mother’s requirement to attend individual therapy, Kelley testified that Mother attended a few

individual therapy sessions; however, she was discharged in May 2024 due to absences, and

despite the Department explaining the importance of therapy to be reunified with her children,

Mother did not otherwise complete individual therapy and told the Department that she would not

complete therapy until after the conclusion of the underlying case. Kelley also testified that Mother

had continued to visit the children during the case and, while there were originally no concerns

with the visits, the Department had stopped the visits because Mother was “overly questioning”

one of the children about the current placement. When questioned by Mother’s counsel, Kelley

did say that it would be hard for Mother to ask the children about their day-to-day activities without

discussing the placement. Related to Mother’s remaining services, just like Marquez, Kelley

testified that Mother had not provided proof of employment, Mother lives with grandmother—

who has an open family-based social services case due to an assault in the home injuring a child—

and that Grandmother’s home is not an appropriate placement for the children. While there were

initially concerns with the results of one of Mother’s drug tests, it was later confirmed by the

Department that the concerning results could have been caused by medication prescribed to Mother

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by her doctor. As for the children’s state when they entered the Department’s care, Kelly testified

that M.J.M. was malnourished when she came into the Department’s care and had chipped teeth

and that M.X.M. had anger issues prior to removal but that those issues had improved. Finally,

Kelley told the trial court that Mother had not made the necessary changes to address the concerns

that led to removal, including by providing a safe and stable environment for the children.

Fourth, the Advocate testified: that Mother admitted she understood what happened

between her and Father was wrong, but she was willing to do what needed to be done to get her

children back; M.A.M. does not want to visit Mother, is doing very well in school, said this wasn’t

the first time this happened, wants to move on, and that requiring him to reengage with his parents

would disrupt his progress; M.X.M. did not want to return to living with Mother; and that M.J.M.

is too young to express her desires. The Advocate echoed Kelley’s testimony that Mother had not

addressed the reasons for removal and could not provide stability for the children. Ultimately, the

Advocate recommended the termination of Mother’s parental rights.

Fifth, Aunt testified that the children had improved in their emotional intelligence since the

beginning of the case, that she was willing to care for the children long-term, and that termination

would be in the children’s best interest. 3 Aunt also testified that Mother has been violent with her

by verbally assaulting her outside the courtroom after a previous hearing. Aunt described the

alleged verbal assault as Mother “yelling at me to my back as I was walking away;” however,

Grandmother, who was the trial’s sixth witness, disputed this event.

Mother closed the trial as the seventh and final witness. Regarding her employment status,

Mother testified that she had been doing flexible, independent contracting work for Pepsi but had

not provided any information to the Department caseworker. As for her counseling, Mother

3 Aunt additionally testified that law enforcement had been called to her house because of this case based on received hotline calls but found no concerns.

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testified that she attended church counseling and a women’s prayer group; however, she admitted

that she knew that those activities did not meet the Department’s required individual therapy in

her service plan. On the topic of counseling, Mother told the court that when she was attending

counseling with the Department therapist, she “thought it was going to go good, and then it turned

out [the therapist] wasn’t even doing any type of therapy with me” and that the therapist was

“[b]labbing about things that I felt were not important.” Pertinent to her relationship with Father,

Mother testified that she and Father were not together anymore and that it was her intention to

testify against him in his criminal trial. As for her current housing, Mother testified that she was

aware of the current issues with Grandmother’s residence, but she was “thinking about looking”

for her own place to live. Mother concluded that she believed she had addressed all the issues that

started the case.

After reviewing the evidence under the appropriate standards of review, we conclude that

a factfinder could have reasonably formed a firm belief or conviction that Mother knowingly

allowed the children to remain in conditions and surroundings that endangered the physical or

emotional well-being of the children (e.g., continuing to engage in a relationship with Father

despite Father committing domestic violence against her and continuing to reside in a home that

is unfit for children). See In re B.N.D., No. 04-21-00286-CV, 2021 WL 6127883, at *4 (Tex.

App.—San Antonio Dec. 29, 2021, no pet.) (mem. op.) (“Mother’s lack of stable housing and a

consistent home environment exposed the children to a life of uncertainty and instability that

endangers the children’s physical and emotional well-being.”); In re C.M.W., No. 01-02-00474-

CV, 2003 WL 579794, at *3 (Tex. App.—Houston [1st Dist.] Feb. 27, 2003, no pet.) (mem. op.)

(holding evidence sufficient under subsection (D) based, in part, on testimony that mother “did not

obtain stable housing or employment despite agency assistance on both fronts and the

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understanding that these factors were critical to the children’s return”). Moreover, as detailed

above, each witness provided a factual basis to support their testimony. See City of San Antonio v.

Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (“[I]f no basis for the opinion is offered, or the basis

offered provides no support, the opinion is merely a conclusory statement and cannot be considered

probative evidence, regardless of whether there is no objection.”); see also, e.g., In re K.M.J., No.

04-18-00727-CV, 2019 WL 1459565, at *6 (Tex. App.—San Antonio Apr. 3, 2019, pet. denied)

(mem. op.) (finding testimony conclusory where it was based on mere “thought” and “belief” that

drugs “may” have been present in the home). Differing views on the witnesses’ testimony do not

render the evidence conclusory; rather, the judge is the sole judge of the weight and credibility of

the testimonial evidence. In re J.F.C., 96 S.W.3d at 266–67; In re J.W., 645 S.W.3d at 744 (noting

the deference given to the fact finder’s “resolution of conflicts in the evidence, including witness

credibility”). Accordingly, we overrule Mother’s first issue.

After review of the record before us, we hold there is sufficient legal and factual evidence

to uphold the trial court’s order terminating Mother’s rights pursuant to subsection (D). We need

not address Mother’s argument relating to subsection (O). See In re A.L.S., 660 S.W.3d at 263; In

re A.V., 113 S.W.3d at 362; In re D.J.H., 381 S.W.3d 606, 611–12 (Tex. App.—San Antonio 2012,

no pet.); TEX. R. APP. P. 47.1.

CONCLUSION

We affirm the trial court’s order of termination.

Lori I. Valenzuela, Justice

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