NUMBER 13-25-00017-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF N.N.J., A CHILD
ON APPEAL FROM THE 329TH DISTRICT COURT OF WHARTON COUNTY, TEXAS
MEMORANDUM OPINION Before Justices Silva, Peña, and Fonseca Memorandum Opinion by Justice Peña
Appellant A.J. (Mother) appeals a judgment terminating the parental rights to her
son N.N.J. 1 In two issues, Mother argues that there is legally and factually insufficient
evidence supporting (1) the statutory termination grounds, and (2) that termination was in
the child’s best interest. We affirm.
1 To protect the identity of minor children in an appeal from an order terminating parental rights,
parents and children are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d). I. BACKGROUND
Appellee, the Department of Family and Protective Services (the Department), filed
a petition seeking to terminate Mother’s parental rights to N.N.J., who was six years old
at the time of trial. The petition was accompanied by an affidavit in support of removal
alleging neglectful supervision. The trial court awarded the Department temporary
managing conservatorship of N.N.J., and the case proceeded to a bench trial, at which
the following evidence was adduced.
Department caseworker Ednika Williams contacted Mother after a report that
Mother was choked by her paramour M.F. in the presence of N.N.J. at a motel in Stafford,
Texas. Mother later stated that M.F. had only pushed her to the floor. Upon contact,
Williams learned that Mother had been shot a few months prior by a drunk friend. Williams
was concerned that Mother did not have a stable environment at the time. Williams
opened a family-based safety services case. Mother refused a hair follicle drug test and
was unable to complete a urinalysis.
Stafford Police Department Sergeant Kristi Melendez responded to the scene
following the domestic violence report. Mother told her that she was staying at the motel
temporarily while N.N.J. had dental work done. Sergeant Melendez was familiar with M.F.
because he was previously involved in a prostitution ring. At that time, M.F. was under
house arrest and had an ankle monitor. Mother stated that M.F. previously made
comments that led her to believe that he was trafficking children, and when Mother asked
M.F. about whether this was happening, he punched her in the face.
A month after the domestic violence report, Williams learned that Mother was
temporarily residing with B.P., whom she described as a family friend, and that Mother
2 would have B.P. babysit N.N.J. while she sought employment. According to Sergeant
Melendez, N.N.J. told a sexual assault nurse examiner that B.P. made him “suck his
penis,” touched his penis, and put his finger in his bottom on several occasions. After
receiving the report of sexual abuse, Williams helped Mother find a shelter for her to stay
in with N.N.J.
Department caseworker Kelsey Koenig completed a family strength and needs
assessment with Mother. During this process, Mother indicated a history of domestic
violence with several paramours, including N.N.J.’s alleged father S.M., who was
currently incarcerated. Koenig learned that Mother was diagnosed with ADHD and
depression, for which Mother was not currently receiving treatment. At the time N.N.J.
was removed, Mother threatened to kill Koenig, and Mother was handcuffed and placed
in a patrol car.
Kelcie Jackson was the family’s caseworker after the removal of N.N.J. She stated
that the initial goal for the Department was family reunification. Jackson said that the
Department was concerned that Mother was not able to protect N.N.J. She cited domestic
violence, an unstable home life, and mental health issues as concerning factors. Mother
entered into a family service plan which she substantially completed. Mother began with
supervised visitation, which progressed to unsupervised visits. N.N.J. was initially excited
for the visits, but he later became withdrawn. N.N.J. expressed he was afraid to visit
Mother because of the “people.” Jackson stated that N.N.J. has shown effects from being
exposed to domestic violence. For instance, N.N.J. will flinch when Jackson gets close to
him. N.N.J. has reported that Mother likes to fight and he has seen his Mother fight other
3 people. After N.N.J.’s removal, Mother tested positive for marijuana and cocaine. 2 During
a home visit, Mother denied a caseworker access to the bedroom. Jackson stated that
the Department remains concerned about Mother’s history of associating with unknown
males and her unstable employment history. Also, N.N.J. has told Jackson that Mother
lets him play with firearms. N.N.J. recalled an instance where Mother gave him a firearm
to hold while he waited for her in the car.
Jackson stated that N.N.J. wants to stay with his current foster family, but he does
not want to make Mother mad. Jackson stated that he is thriving in his current placement,
and she believes it is in N.N.J.’s best interest that Mother’s parental rights be terminated
so that he can be adopted.
Sarah and Zack Kirk are N.N.J.’s current foster parents. The family has a magnet
board with tasks to accomplish each day. Sarah stated that N.N.J. is tasked with packing
his snack each morning for school. N.N.J. often rides his bike to the nearby school, where
he is currently in first grade. N.N.J. attends weekly play therapy sessions to assist him in
processing his past trauma. Sarah has stated that N.N.J. has been diagnosed with PTSD
and acute stress disorder. N.N.J. has a ptosis in his left eye, which means his vision is
almost fully blocked by his eyelid. This condition will require surgery in the future. Sarah
stated that N.N.J. has regressed as the duration and frequency of his visits with Mother
has increased. She stated that the regression is shown through wetting himself, nausea,
and fatigue. Sarah recalled that N.N.J. would hyperventilate when she washed his hair
because Mother had sent a note indicating that she did not want the Kirks to touch his
2 The trial court admitted the drug testing lab reports as an exhibit.
4 hair. N.N.J. described to Sarah an instance where Mother struck him with a belt in the
chest and locked him in a closet that was infested with cockroaches.
Mother testified that she is currently employed and resides at a women’s shelter.
She is saving money so that she can provide a safe residence for N.N.J. Mother
acknowledged past drug use but stated that she is now clean.
The trial court signed an order terminating Mother’s parental rights pursuant to
Texas Family Code § 161.001(b)(1)(D) and (E). See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(D), (E). The trial court further found that termination of Mother’s parental
rights was in N.N.J.’s best interests. See id. § 161.001(b)(2). This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review and Applicable Law
Before parental rights may be involuntarily terminated, the trier of fact must find
two elements by clear and convincing evidence: (1) that the parent committed one of the
statutory grounds for termination found in § 161.001(b)(1) of the family code; and (2) that
termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(b); In re E.N.C.,
384 S.W.3d 796, 803 (Tex. 2012).
Because of the fundamental rights at issue, due process requires that parental
termination be supported by clear and convincing evidence. In re S.M.R., 434 S.W.3d
576, 580 (Tex. 2014); In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). Clear and
convincing evidence is “the measure or degree of proof that will produce in the mind of
the trier of fact a firm belief or conviction as to the truth of the allegations sought to be
established.” TEX. FAM. CODE ANN. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex.
2002).
5 In parental termination cases, our legal and factual sufficiency standards honor
this elevated burden of proof while respecting the factfinder’s role. In re A.C., 560 S.W.3d
624, 630 (Tex. 2018) (citing In re J.F.C., 96 S.W.3d at 264). “The distinction between
legal and factual sufficiency lies in the extent to which disputed evidence contrary to a
finding may be considered.” Id. In a legal sufficiency review, we “cannot ignore undisputed
evidence contrary to the finding, but must otherwise assume the factfinder resolved
disputed facts in favor of the finding.” Id. at 630–31 (citing In re J.F.C., 96 S.W.3d at 266).
Thus, “[e]vidence is legally sufficient if, viewing all the evidence in the light most favorable
to the fact-finding and considering undisputed contrary evidence, a reasonable factfinder
could form a firm belief or conviction that the finding was true.” Id. at 631 (citing In re
J.F.C., 96 S.W.3d at 266).
Factual sufficiency, on the other hand, requires us to weigh disputed evidence
contrary to the finding against all the evidence favoring the finding. Id. We “must consider
whether disputed evidence is such that a reasonable factfinder could not have resolved
it in favor of the finding.” Id. (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)).
Therefore, “[e]vidence is factually insufficient if, in light of the entire record, the disputed
evidence a reasonable factfinder could not have credited in favor of a finding is so
significant that the factfinder could not have formed a firm belief or conviction that the
finding was true.” Id. (citing In re J.F.C., 96 S.W.3d at 266).
B. Statutory Grounds
In her first issue, Mother argues there is legally and factually insufficient evidence
supporting each termination ground.
6 Subsection 161.001(b)(1)(D) allows termination when the evidence proves by
clear and convincing evidence that the parent knowingly placed or knowingly allowed the
child to remain in conditions or surroundings which endanger the child’s physical or
emotional well-being, and subsection 161.001(b)(1)(E) allows termination if the parent
has engaged in conduct, or knowingly placed the child with persons who engage in
conduct, which endangers the child’s physical or emotional well-being. TEX. FAM. CODE
ANN. § 161.001(b)(1)(D), (E). “Subsection (D) addresses the child’s surroundings and
environment rather than parental misconduct, which is the subject of subsection (E).” In
re A.L.H., 624 S.W.3d 47, 56 (Tex. App.—El Paso 2021, no pet.) (quoting In re B.C.S.,
479 S.W.3d 918, 926 (Tex. App.—El Paso 2015, no pet.)). Subsection (D) permits
termination based on only a single act or omission. In re V.A., 598 S.W.3d 317, 329 (Tex.
App.—Houston [14th Dist.] 2020, pet. denied). In contrast, subsection (E) requires
evidence of a “voluntary, deliberate, and conscious course of conduct by the parent” and
generally more than a single act or omission. In re D.L.W.W., 617 S.W.3d 64, 78 (Tex.
App.—Houston [1st Dist.] 2020, no pet.) (quoting In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.—Fort Worth 2003, no pet.)).
“For both of these provisions, ‘endanger’ means ‘to expose to loss or injury; to
jeopardize.’” Id. (quoting In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)). “Although
‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a
less-than-ideal family environment, it is not necessary that the conduct be directed at the
child or that the child actually suffers injury.” Id. “It is enough if the youth is exposed to
loss or injury or his physical or emotional well-being is jeopardized.” Id. (quoting In re
P.E.W., 105 S.W.3d 771, 777 (Tex. App.—Amarillo 2003, no pet.)). “As a general rule,
7 conduct that subjects a child to a life of uncertainty and instability endangers the physical
and emotional well[-]being of a child.” In re S.A., 665 S.W.3d 59, 70 (Tex. App.—Tyler
2022, pet. denied) (first citing In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort
Worth 2009, no pet.); and then citing In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort
Worth 2004, pet. denied)).
The Department initially removed N.N.J. due to concerns that Mother was unable
to protect the child from harm. The evidence at trial reflects that while Mother completed
services offered by the Department, concerns remained regarding her ability to provide a
safe and stable environment for N.N.J. First, Mother had yet to find permanent housing
at the time of trial. A parent’s “[f]ailure to maintain stability endangers the child’s physical
and emotional well-being.” In re S.R., 452 S.W.3d 351, 362 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied). N.N.J.’s foster mother recalled that following visitations with
Mother, N.N.J. would wet himself, have stomach aches, show fatigue, and would
hyperventilate. Prior to removal, Mother exposed N.N.J. to domestic violence and left
N.N.J. with someone who allegedly sexually abused N.N.J. Mother also associated with
a person who was known to run a prostitution ring and had been under house arrest.
“[I]t is beyond question that sexual abuse is conduct that endangers a child’s
physical or emotional well-being.” In re R.W., 129 S.W.3d 732, 742–43 (Tex. App.—Fort
Worth 2004, pet. denied) (quoting In re R.G., 61 S.W.3d 661, 667 (Tex. App.—Waco
2001, no pet.), disapproved of on other grounds, 96 S.W.3d 256 (Tex. 2002)); see In re
G.M., 649 S.W.3d 801, 809 (Tex. App.—El Paso 2022, no pet.). Further, “[d]omestic
violence, want of self-control, and propensity for violence may be considered as evidence
of endangerment.” In re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.]
8 2014, pet. denied) (quoting In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th
Dist.] 2003, no pet.)). Additionally, Mother endangered N.N.J. when she left him alone
with a loaded firearm. See In re K.C.B., 280 S.W.3d 888, 896 (Tex. App.—Amarillo 2009,
pet. denied) (noting that the presence of unsecured weapons clearly exposes a child to
loss or injury); see also In re A.O., No. 02-21-00376-CV, 2022 WL 1257384, at *11 (Tex.
App.—Fort Worth Apr. 28, 2022, pet. denied) (mem. op.) (including in endangerment
analysis the fact that baby was given access to loaded gun); In re G.V., No. 14-02-00604-
CV, 2003 WL 21230176, at *4 (Tex. App.—Houston [14th Dist.] May 29, 2003, pet.
denied) (mem. op.) (considering leaving a child with easy access to a loaded weapon as
evidence of endangerment).
There was also evidence that Mother used cocaine and marijuana. A parent’s use
of narcotics and its effect on her ability to parent may qualify as an endangering course
of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). “While illegal drug use alone
may not be sufficient to show endangerment, a pattern of drug use accompanied by
circumstances that indicate related dangers to the child can establish a substantial risk of
harm.” In re R.R.A., 687 S.W.3d 269, 278 (Tex. 2024). “When a pattern of drug use is
coupled with credible evidence of attendant risks to employment, housing, and prolonged
absence from the children, a factfinder reasonably can find endangerment to the child’s
physical or emotional well-being under (D) and (E).” Id. at 281. Those attendant risks are
present in this case as Mother has had trouble maintaining housing and employment and
would leave N.N.J. alone with a firearm. See id.
Viewing all the evidence in the light most favorable to the trial court’s (D) and (E)
findings and considering undisputed contrary evidence, we conclude that a reasonable
9 factfinder could form a firm belief or conviction that the findings were true. See In re A.C.,
560 S.W.3d at 634. Further, considering the entire record, including evidence both
supporting and contradicting the trial court’s findings, we conclude that the contrary
evidence is not so overwhelming as to undermine the court’s findings. See id. We overrule
Mother’s first issue.
C. Best Interest
In Mother’s second issue, she argues there is legally and factually insufficient
evidence supporting the trial court’s best interest finding.
1. Holley Factors
There is a strong, though rebuttable, presumption that keeping a child with a parent
is in the child’s best interest. TEX. FAM. CODE ANN. § 153.131; In re R.R., 209 S.W.3d 112,
116 (Tex. 2006). We consider the following factors in determining whether termination of
parental rights is in a child’s best interest: (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 parenting abilities of the parties seeking
custody; (5) the programs available to assist the parties seeking custody; (6) the plans
for the child by the parties seeking custody; (7) the stability of the home or proposed
placement; (8) the acts or omissions committed by the parent which may indicate that the
existing parent-child relationship is not proper; and (9) any excuse for the acts or
omissions committed by the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
The party seeking termination is not required to prove all nine Holley factors, and in some
cases, undisputed evidence of just one factor may be sufficient to support a finding that
termination is in the best interest of the child. In re C.H., 89 S.W.3d 17, 25, 27 (Tex. 2002).
10 2. Analysis
As to the first Holley factor, N.N.J., expressed his desire to stay in his current
placement, and he would show signs of distress after extended visits with Mother. This
factor supports the trial court’s finding.
As to the second Holley factor, there was evidence that N.N.J. was receiving play
therapy to treat PTSD and acute stress disorder. Further, N.N.J.’s foster parents are in
the process of setting up a medical procedure to correct N.N.J.’s eyelid. On the other
hand, there is no indication that Mother is capable of addressing his needs due to her
unstable lifestyle. This factor supports the trial court’s finding as well.
Relevant to the third Holley factor is Mother’s drug use, presence of domestic
violence, and sexual abuse of the child. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—
Fort Worth 2007, no pet.) (noting that a parent’s drug use supports a finding that
termination is in the best interest of the child); In re R.W., 129 S.W.3d at 742–43; In re
J.I.T.P., 99 S.W.3d at 846 (stating domestic violence supports finding that termination is
in child’s best interest even when child is not the victim of violence). Further, as analyzed
above, the evidence supports the trial court’s endangerment findings. See In re V.A., 598
S.W.3d at 333 (“Evidence supporting termination under the grounds listed in [§]
161.001(b)(1) can be considered in support of a finding that termination is in the child’s
best interest.”). This factor supports the trial court’s finding.
Moving to the fifth, sixth, and seventh Holley factors, the evidence shows that
N.N.J.’s current caregivers were meeting his basic needs and wished to adopt him, while
Mother showed continued instability through her lack of housing and continued drug use.
See In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (“A
11 parent’s drug use, inability to provide a stable home, and failure to comply with [the] family
service plan support a finding that termination is in the best interest of the child.”). A child’s
need for permanence through the establishment of a “stable, permanent home” has been
recognized as the paramount consideration in determining best interest. In re G.A.C., 499
S.W.3d 138, 141 (Tex. App.—Amarillo 2016, pet. denied); In re K.C., 219 S.W.3d 924,
931 (Tex. App.—Dallas 2007, no pet.). These factors support the trial court’s best interest
finding.
Regarding the eighth and ninth Holley factors, Mother offered no credible excuse
for her failures to protect N.N.J. and provide him with a stable home. See In re O.E.R.,
573 S.W.3d 896, 911 (Tex. App.—El Paso 2019, no pet.). These factors support the trial
court’s best interest finding as well.
Considering all the Holley factors, we conclude that the evidence was legally and
factually sufficient to rebut the strong presumption that keeping N.N.J. with his biological
mother is in his best interest. See TEX. FAM. CODE ANN. § 153.131. We overrule Mother’s
second issue.
III. CONCLUSION
We affirm the trial court’s judgment.
L. ARON PEÑA JR. Justice
Delivered and filed on the 18th day of June, 2025.