NUMBER 13-23-00032-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF R.R.G. IV, A CHILD
On appeal from the County Court at Law No. 5 of Nueces County, Texas.
MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Longoria Memorandum Opinion by Justice Benavides
Appellants A.A.N.P. (Alexis) and R.G. III (Ryan)1 appeal from the trial court’s final
order terminating their parental rights to R.R.G. IV (Roger). Alexis and Ryan both argue
that the trial court’s jurisdiction was extinguished when it failed to render an order
extending the automatic dismissal date prior to the deadline lapsing. See TEX. FAM. CODE
ANN. § 263.401(b). Alexis additionally argues that the trial court erred by: (1) terminating
1 We identify the parties and child in this case by aliases. See TEX. R. APP. P. 9.8(b)(2). her parental rights when the evidence was legally and factually insufficient to show that it
was in Roger’s best interest; and (2) denying her motion for new trial based on newly
discovered evidence.2 We affirm.
I. PROCEDURAL BACKGROUND
On May 10, 2021, the Texas Department of Family and Protective Services (the
Department) filed an original petition for the protection of Roger and to terminate the
parental rights of Alexis and Ryan. According to the affidavit in support of removal
attached to the petition, the Department received a report of potential child neglect on
May 4, 2021. As part of its preliminary investigation, the Department learned that Roger
was born testing positive for methylenedioxymethamphetamine (MDMA), amphetamine,
and benzodiazepine. Alexis submitted to a urinalysis test, which yielded positive results
for methamphetamine.
That same day, the trial court signed an order removing the child from the parents’
custody and appointing the Department as temporary managing conservator. Throughout
the course of the proceedings, Alexis was permitted two-hour supervised visits with Roger
twice weekly. On May 16, 2022, the trial court signed an order requiring Alexis to complete
inpatient drug treatment.
Trial commenced on November 7, 2022. At the conclusion of trial, the court took
the matter under advisement. On December 28, 2022, the trial court signed an order
terminating Alexis’s and Ryan’s parental rights and finding that the termination was in
Roger’s best interest. Alexis filed a motion for new trial based on newly discovered
2 We have renumbered Alexis’s issues. 2 evidence, but the trial court denied the motion. This accelerated appeal followed. See
TEX. R. APP. P. 28.4.
II. JURISDICTION
Alexis and Ryan contend that the trial court lost jurisdiction over the termination
proceedings by failing to extend the automatic dismissal deadline.
A. Standard of Review & Applicable Law
“Before a court may enter judgment against a party, the court must have obtained
jurisdiction over that party pursuant to applicable rules or statutes.” Whatley v. Walker,
302 S.W.3d 314, 321 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). A judgment is
void when the court rendering judgment had no jurisdiction over the parties or property,
no jurisdiction over the subject matter, no jurisdiction to enter the particular judgment, or
no capacity to act. In re D.S., 602 S.W.3d 504, 512 (Tex. 2020). We review whether a
trial court has jurisdiction de novo. Joyner v. Joyner, 352 S.W.3d 746, 749 (Tex. App.—
San Antonio 2011, no pet.).
“Section 263.401 of the Texas Family Code establishes a deadline for rendition of
a final order in suits affecting the parent-child relationship (SAPCRs) brought by the
[Department].” In re Tex. Dep’t of Fam. & Protective Servs., 210 S.W.3d 609, 611 (Tex.
2006) (orig. proceeding) (op. on reh’g). This provision requires trial courts to commence
a trial on the merits by “the first Monday after the first anniversary of the date the court
rendered a temporary order appointing the department as temporary managing
conservator.” TEX. FAM. CODE ANN. § 263.401(a). If the trial court finds certain
extraordinary circumstances exist, the statute allows the trial court to extend the deadline
3 by a maximum of 180 days. Id. § 263.401(b); In re Tex. Dep’t of Fam. & Protective Servs.,
210 S.W.3d at 612. “But if the trial court neither commences trial by the dismissal date
nor extends it in accordance with [§] 263.401(b), the statute dictates a dire consequence:
the trial court’s jurisdiction over the suit ‘is terminated and the suit is automatically
dismissed.’” In re G.X.H., 627 S.W.3d 288, 292 (Tex. 2021) (quoting TEX. FAM. CODE ANN.
§ 263.401(a)).
B. Analysis
On May 10, 2021, the trial court rendered a temporary order appointing the
Department as temporary managing conservator. This made the automatic dismissal date
May 16, 2022. See TEX. FAM. CODE ANN. § 263.401(a). At a docket call on May 5, 2022,
the Department and counsel for Alexis informed the trial court that the automatic dismissal
deadline was looming and that the trial court had not extended the deadline yet. Counsel
for Ryan announced that he was not ready for trial. Counsel for Alexis discussed her
client’s attempts to begin inpatient drug treatment and stated the case “need[ed] an
extension.” The trial court pronounced, “Okay. I’ll order the [263.]401 [extension], but let’s
set it for trial. If she gets into treatment—I mean, that’s the goal here. . . . If she’s in
treatment in 45 days, my inclination will be to let her finish her treatment.” However, the
trial court failed to explicitly make the findings mandated by § 263.401(b). See id.
§ 263.401(b). No party objected to the trial court’s oral rendition of the extension or its
omission of the required findings. See TEX. R. APP. P. 33.1(a). On May 27, 2022, the trial
court signed a written order setting the new dismissal date as November 13, 2022, and
explicitly finding “that extraordinary circumstances necessitate the subject child[
4 ]remaining in the temporary managing conservatorship of the Department and that
continuing the appointment of the Department as temporary managing conservator is in
the best interest of the subject child.” See TEX. FAM. CODE ANN. § 263.401(b).
We conclude the trial court’s pronouncement that it would “order the [263.]401
[extension]” was sufficient to extend the mandatory dismissal deadline. See id. § 101.026;
In re G.X.H., 627 S.W.3d at 299 (explaining that Texas Family Code § 101.026 “permits
trial courts to render orders orally in the presence of the court reporter”); see also In re
J.P., No. 13-18-00648-CV, 2020 WL 103858, at *4 (Tex. App.—Corpus Christi–Edinburg
Jan. 9, 2020, pet. denied) (mem. op.) (holding that the trial court rendered judgment when
it stated, “The Court will approve the agreement of the parties and I will order the release
of [Mother]”). However, both Alexis and Ryan urge that because the trial court failed to
explicitly make the findings required by § 263.401(b) prior to the expiration of the original
dismissal deadline, the trial court’s attempt to extend the deadline was ineffective. See
TEX. FAM. CODE ANN. § 263.401(b).
“[T]rial courts must expressly make the ‘extraordinary circumstances’ and ‘best
interest’ findings” required by § 263.401(b) “either in a written order or orally at a hearing,
and their failure to do so is error.” In re J.S., No. 22-0420, 2023 WL 4036262, at *7 (Tex.
June 16, 2023). But “a trial court’s failure to make the mandatory [§] 263.401(b) findings
expressly does not affect the separate jurisdictional inquiry.” Id. at *9; see id. at *12
(concluding that “a trial court’s failure to make the mandatory ‘extraordinary
circumstances’ and ‘best interest’ findings prior to the initial automatic dismissal deadline
is a non-jurisdictional error”). Accordingly, the failure of the trial court to explicitly make
5 the findings required by § 263.401(b) prior to the original dismissal deadline did not
deprive the trial court of jurisdiction. See In re J.S., 2023 WL 4036262, at *12. Further,
because Alexis and Ryan did not object below to the trial court’s failure to explicitly make
the required findings prior to the original dismissal deadline, any other complaints they
raise concerning this issue were not preserved for our review. See id. (“Because Mother
did not object to the trial court’s failure to comply with the non-jurisdictional findings
requirement prior to the initial automatic dismissal deadline, that error cannot be
addressed for the first time on appeal.”); see also TEX. R. APP. P. 33.1(a).
We overrule Ryan’s sole issue and Alexis’s first issue.
III. BEST INTEREST OF THE CHILD
In her second issue, Alexis argues that the evidence was legally and factually
insufficient to find that termination of her parental rights was in Roger’s best interest.
A. Applicable Law
“A parent’s right to ‘the companionship, care, custody, and management’ of her
children is a constitutional interest ‘far more precious than any property right.’” In re
D.S.P., 210 S.W.3d 776, 778 (Tex. App.—Corpus Christi–Edinburg 2006, no pet.)
(quoting Santosky v. Kramer, 455 U.S. 745, 758–59 (1982)). “Because the natural right
between a parent and his child is one of constitutional dimensions, Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985), termination proceedings must be strictly scrutinized.” In re
K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). “In parental termination cases, due process
requires application of the clear and convincing standard of proof.” Id. “‘Clear and
convincing evidence’ means the measure or degree of proof that will produce in the mind
6 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.
To terminate parental rights, a court must find one of the grounds for termination
specified in § 161.001(b)(1) of the family code and that termination is in the best interest
of the child. Id. § 161.001(b)(1), (2). 3 “[T]here is a strong presumption that the best
interest of a child is served by keeping the child with a parent.” In re R.R., 209 S.W.3d
112, 116 (Tex. 2006) (per curiam). In determining the best interest of the child, courts
may consider the following non-exhaustive factors:
(1) the desires of the children;
(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 children by the parents;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate the existing parent-child relationship is not a proper one; and
3 Alexis’s parental rights were terminated on the grounds that she: (1) knowingly placed or allowed
Roger to remain in conditions or surroundings which endangered his physical or emotional well-being, see TEX. FAM. CODE ANN. § 161.001(b)(1)(D); (2) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered Roger’s physical or emotional well-being, id. § 161.001(b)(1)(E); (3) failed to comply with the provisions of a court order that specifically established the actions necessary to obtain Roger’s return and that Roger had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of Roger’s removal from Alexis because of the abuse or neglect of Roger, id. § 161.001(b)(1)(O); and (4) used a controlled substance, as defined by Chapter 481 of the health and safety code, in a manner that endangered the health or safety of the child, and either failed to complete a court-ordered substance abuse treatment program or after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance, see id. § 161.001(b)(1)(P). Alexis does not challenge the sufficiency of the evidence to support these grounds. 7 (9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). However, there is no requirement
that the trial court hear evidence concerning each of the Holley factors, and the trial court
is permitted to consider additional factors in determining a child’s best interest. See In re
D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.) (citing Holley, 544
S.W.2d at 371–72). “While no one factor is controlling, analysis of a single factor may be
adequate in a particular factual situation to support a finding that termination is in the best
interest of the child.” In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.]
2017, pet. denied). In child protection cases brought by the Department, there is also a
presumption that “the prompt and permanent placement of the child in a safe environment
is . . . in the child’s best interest.” TEX. FAM. CODE ANN. § 263.307.
“In a legal sufficiency review, a court should 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.” In re J.F.C., 96 S.W.3d 256,
266 (Tex. 2002). We “assume that the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so,” and we “disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” Id. If, after
this review of the evidence, we determine “that no reasonable factfinder could form a firm
belief or conviction that the matter that must be proven is true,” then the evidence is legally
insufficient. Id.
“In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all the evidence, including disputed or conflicting evidence.” In re
8 L.C.L., 599 S.W.3d 79, 84 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (en banc).
The appropriate inquiry is “whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction about the truth of the [Department]’s allegations.” In re
J.F.C., 96 S.W.3d at 266 (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). “Because
the factfinder ‘is the sole arbiter of the witnesses’ credibility and demeanor,’ appellate
review must defer to the trial court’s factual determinations, even in parental termination
cases.” In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (footnotes omitted).
B. Evidence
At the final hearing, the following evidence was presented:
1. Kennedy Toungate’s Testimony
Kennedy Toungate, a caseworker for the Department, testified that Roger was
removed at birth because both he and Alexis tested positive for “ecstasy, opiates,
methamphetamine, amphetamines, and benzodiazepine.” Toungate explained that a
family service plan was created, and that as part of this plan, Alexis was required to
complete parenting classes, individual therapy, psychological and psychosocial
assessments, and a drug assessment. Alexis was also required to submit to random drug
screenings and to allow a Department representative access to her home.
Alexis was allowed supervised visits with Roger, and Toungate opined that these
visits had “gone fairly well” with Alexis behaving “pretty age appropriate[ly,] aside from
maybe giving [Roger] a bottle when he’s no longer on the bottle, and . . . one time where
she lunged at me with the child in her arms. But other than that, she’s been appropriate.”
Toungate expanded on this incident, explaining that Alexis “picked up the child, she
9 lunged at me, and she was calling me—she was calling me names while holding the child
in her hands.” Alexis told Toungate “that she would not be handing the child over to
[Toungate] after that visitation was over and that [Toungate] would need to call law
enforce[]ment, which [Toungate] did.” Toungate believed this behavior was “not safe for
a child.”
Toungate agreed that Alexis had completed her individual counseling. Alexis also
“completed drug courses in October of 2021,” but Alexis then relapsed on
methamphetamine, and the Department recommended she enroll in a relapse prevention
program. Alexis did not do so. Toungate testified that the Department would also “ask
[Alexis] to drug test once a week, once every other week, and she—most of the times,
she would not drug test.” Toungate explained that “the Department offered to take her
and even set up transportation for her and she did not complete those tests.” Toungate
added that the last time Alexis completed a drug test for the Department was August 19,
2022, despite asking Alexis to test every week between then and November 3, 2022.
Toungate also explained that she was not able to testify to the safety of Alexis’s residence,
as she had not been able to personally examine Alexis’s living arrangement.
According to Toungate, Alexis would confirm that she was going to begin inpatient
treatment “[e]very week.” However, Toungate confirmed that Alexis “has not completed
inpatient rehab as ordered by the Court.” Toungate outlined Alexis’s attempts at obtaining
inpatient treatment as follows:
I do know that she went to Santa Maria in Houston for a few days and then left. I do know that she attended Outcomes Recovery in Brownsville in June. She left [due] to a family emergency and then went back once her family emergency was completed and then left against recommendation. And then
10 she went to Outcomes as well, I believe, in September after I became the caseworker. She was there for a few days and then left against recommendation again.
Toungate testified that Alexis “left Laurel Ridge against medical advice,” as well.
Toungate also explained that Alexis’s mental health “has been a concern,” and
Alexis has not adequately addressed the issue. Toungate did not “believe that [Alexis]
would be able to be a safe parent” because of her unaddressed mental health issues.
According to Toungate,
[w]e started this group message at the beginning of September, just due to [Alexis] both texting myself and my supervisor anywhere from 20 to 70 times in a day after we addressed her concerns with her numerous times. So, we hoped that that would help regulate some of those messages and some of her concerns, which it didn’t. I still received text messages calling me, I quote, stupid fucking bitch weekly. So, it’s very erratic explosive behavior.
Toungate agreed that the Department was recommending the termination of Alexis’s
parental rights.
2. Desiree Villarreal’s Testimony
Desiree Villarreal, Alexis’s sister, testified that she was Roger’s current caregiver.
According to Villarreal, Roger was originally placed with her on June 16, 2021, when he
was seven weeks old. Villarreal testified that she had not known of Alexis’s pregnancy
until close to Roger’s date of birth, and that from her observations of Alexis, Villarreal
suspected Alexis was “using” around that time, but she was not certain.
Villarreal explained that when Roger was first placed with her, she wanted her
sister to “[g]o to rehab to get clean so she could possibly get him back.” During this initial
period, Villarreal and Alexis had a good relationship. However, around the time Roger
was “four to six months old,” things soured between the siblings. Villarreal described
11 Alexis’s communications as “not violent, but ugly.” For instance, Villarreal said that Alexis
texted her that “she hates [her],” and “at one point, [Alexis] told [Villarreal] . . . [t]hat she
was going to basically, unfortunately, stalk [Villarreal] if that’s what it took for her to be
able to see her son.”
Villarreal explained that she believed it was in the child’s best interest “[t]o stay
where he’s at.” Villarreal explained that Roger was “happy” and “thriving.” But Villarreal
also testified to some of the specialized health and developmental care Roger needed.
She explained that Roger “was evaluated for physical therapy in October and he just
started it, like, the second-to-last week of November and his physical therapy goal was to
start walking. . . . He is now walking. He is almost running now.” Roger also “started
occupational therapy at ten months old” because “[h]e did have a slow development with
motor skills and verbalizing as well,” but that “[a]ll the milestones that [were] set for him,
he hit.” Roger also attended “specialized skills training,” which “helps [Roger] to produce
environmental sounds such as, like, vehicle[ and] animal noises to help him speak more.”
Roger was also diagnosed with asthma, which requires the use of a “Symbicort inhaler
twice a day. Two pumps in the morning, two pumps at night,” and occasionally
necessitates the use of “an oral steroid.” Villarreal testified that if those interventions did
not work, “it’s to the ER we go.”
Villarreal testified that she was in school to be a registered nurse and planned to
finish her degree in December of 2023. She sometimes picked up contract work at a drug
and genetic testing company, as well. Villarreal also testified that she was caring for four
children of her own. Villarreal testified that she did not “want to take [Roger] from [her]
12 sister,” but she believed it was in Roger’s best interest for Alexis’s parental rights to be
terminated. She also testified that her goal was to move forward with kinship adoption.
3. Alexis’s Testimony
Alexis testified via Zoom over the course of two days. On the first day, she was on
her way to an inpatient drug treatment facility called “The Right Step in Wimberley,
Texas.” On the second day, she testified from the facility.
Alexis gave conflicting testimony concerning her drug use. She agreed that she
had an issue with drugs beginning in 2008, and that she had never sought treatment prior
to the initiation of this case. According to Alexis, her “baby was positive for a benzo”
because “[t]hey gave [her] that in [her] IV when [she] was having [her] C-section.” Alexis
acknowledged the “MDMA” in Roger’s system when he was born “came from the line of
meth . . . . ingested by [her].” However, she later testified that she “didn’t take
methamphetamines when [she] was pregnant.” Alexis admitted that she had continued to
use meth over the course of the proceedings, and that the date she last used meth was
June 20, 2022. However, she also claimed that she just “said that [she] used meth to get
into rehab,” and that she was actually clean and could not recall the last time she used
drugs. Alexis acknowledged that her “baby being born positive . . . clearly shows that [she
is] an addict.” However, she also testified that she was “not a frequent user of meth” and
expressed confusion as to why she “didn’t bring [her] baby home” from the hospital.
Alexis acknowledged that she “[p]robably” missed at least three drug tests between
July 30 and November 8, 2021. She also agreed she “wasn’t drug testing all of the month”
of December 2021. According to Alexis, in the months leading up to March of 2022, she
13 “had tested. Not every single time, but [she] had tested and [her] UA was negative.”
However, when she missed drug tests, it was either “because [she] didn’t have
transportation or [she] was at work.” She testified that she would get rides from “[s]ome
friends” or from her father as “one of the last resorts,” but that she would often have to
take taxis which would always cost “over $100.” Alexis testified that “the Department didn’t
lend a hand to help [her] complete [her] services.”
According to Alexis, on May 12, 2022, she “was getting admitted to Santa Maria in
Houston” for inpatient treatment. She then “found Outcomes in the Valley and they
accepted [her], but right before then, before June 20[], [she] had found Starlite Recovery.”
Alexis testified that she “was at Outcomes for a week[ but l]eft in an emergency.” Alexis
testified that she was then admitted to San Antonio Recovery, but that she “had an
altercation with another person,” and was then transferred to Laurel Ridge. Alexis stated
that she would complete inpatient treatment at The Right Step, regardless of the outcome
of the termination proceedings.
Alexis testified that she worked as “a private nurse.” She was paid $20 per hour in
cash and worked “about 25 hours a week, but, sometimes they need [her] more than
that.” However, Alexis also testified, “I quit. I closed down my business and I have no
more money.” Alexis testified that she lived with her father, and that a previous
Department caseworker had approved the residence. After completing treatment, she
planned to continue living with her father or to live with one of her adult children. She also
testified that several people, including her father and her adult children, were willing to
act as 24-hour monitors, so she could have increased supervised visits with Roger. Alexis
14 denied having any mental health issues, other than an ADHD diagnosis.
Alexis testified that she did “not want to take [her] sister away from [Roger].”
According to Alexis, “that’s the mother that he knows because I’ve been kept away from
my son.” However, Alexis also stated that “he’s my baby,” and “[h]e needs to be with his
mother.”
C. Best Interest Analysis
1. Desires of the Child
The first Holley factor takes into account the child’s desires. See Holley, 544
S.W.2d at 372. Roger was sixteen months old at the time of the final hearing. “When
children are too young to express their desires, the factfinder may consider whether the
children have bonded with the [placement], are well-cared for by them, and have spent
minimal time with a parent.” In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied).
Here, Villarreal testified that Roger was placed with her since he was seven weeks
old. Toungate testified that Roger was “doing well” in his current placement, and that
Villarreal and Roger “have a really good bond.” Alexis acknowledged the bond between
Villarreal and Roger, stating, “that’s the mother that he knows.”
On the other hand, Alexis was awarded two-hour supervised visits twice a week
with Roger. By all accounts, Alexis would, for the most part, behave appropriately at these
visits. She would bring toys, books, diapers, food, etc. Toungate testified that Roger and
Alexis “have a very good relationship.” This factor weighs slightly against terminating
Alexis’s parental rights. See id.
15 2. Emotional and Physical Needs of and Danger to Roger, Now and in the Future
“The need for permanence is a paramount consideration for a child’s present and
future physical and emotional needs.” In re J.G.S., 550 S.W.3d 698, 705 (Tex. App.—El
Paso 2018, no pet.). “[T]he prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest.” TEX. FAM. CODE ANN.
§ 263.307(a). “Conduct that subjects a child to a life of uncertainty and instability
endangers the child’s physical and emotional well-being.” In re R.A.G., 545 S.W.3d 645,
651 (Tex. App.—El Paso 2017, no pet.).
A “factfinder can give ‘great weight’ to the ‘significant factor’ of drug-related
conduct.” In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied). “[A] parent’s use of narcotics and its effect on his or 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). And “[a] fact finder may infer that past conduct endangering the well-being of a
child may recur in the future if the child is returned to the parent.” In re G.C.S., 657 S.W.3d
114, 134 (Tex. App.—El Paso 2022, pet. denied).
Alexis offered a variety of explanations for why three drugs were found in Roger’s
system at his birth. As to amphetamines, she testified, “I’m saying I didn’t take
methamphetamines when I was pregnant. I took Adderall and my OB doctor knew that.”
As to benzodiazepines, she testified, “[Y]ou tell me my baby is dirty with three drugs. One
of them is a benzoid and that’s when the anesthesiologist gave me Percocet. I didn’t put
my baby in the NICU. The Percocet put the baby in the NICU.” As to MDMA, she stated,
“I was very concerned that somebody was giving me something and how [sic] my baby
16 was positive for MDMA.” We will not “second-guess the trial court’s resolution of a factual
dispute by relying on evidence that is either disputed, or that the court could easily have
rejected as not credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003). The trial court
could have disbelieved Alexis’s testimony and instead determined that Roger was born
with these illicit substances in his system not because of the medical care Alexis received
or because someone was drugging her, but because of her own prior, unlawful drug use.
See id.; In re J.J.L., 578 S.W.3d 601, 611 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
(“A parent’s unwillingness to admit she has a substance abuse problem suggests she will
continue to abuse drugs and therefore continue to endanger her child.”).
Villarreal testified to Roger’s special needs, both because of developmental delays
and because of his young age. Villarreal testified that Roger: (1) required occupational
therapy “two times a month,” (2) required specialized skills training “four times a month,”
(3) “sees pulmonology regularly” and “does a Symbicort inhaler twice a day” for his
asthma, and (4) requires physical therapy. Villarreal testified that Roger “has a routine”
and that “[h]e’s thriving.” See In re J.G.S., 550 S.W.3d at 705.
Alexis provided no testimony regarding how she would be able to transport Roger
to his various therapies. Instead, she testified that she was unaware of most of Roger’s
needs, stating, “My child is always sick. I didn’t even know my kid had asthma. Then my
son can’t walk or talk right now. I didn’t even know what therapies he’s getting.” See TEX.
FAM. CODE ANN. § 263.307(12)(F) (providing court may consider whether parent has an
understanding of the child’s needs and capabilities in determining whether the parent is
willing and able to provide the child with a safe environment); In re L.G.R., 498 S.W.3d at
17 206 (“The record evidence about the Child’s medical needs weighs in favor of the trial
court’s finding that termination is in the best interest of the Child.”).
Toungate expressed concerns over Alexis’s “erratic explosive behavior” and her
lack of cooperation with the Department. See TEX. FAM. CODE ANN. § 263.307(b)(10)
(providing that a parent’s willingness “to cooperate with and facilitate an appropriate
agency’s close supervision” is an appropriate consideration in determining the child’s best
interest). Toungate also recounted an incident where Alexis “lunged” at Toungate while
Alexis was holding Roger. Given the specialized care Roger needs and the evidence
concerning Alexis’s inability to safely provide for those needs, these factors weigh in favor
of termination.
3. Parenting Abilities and Programs Available
The fourth and fifth factors concern the parenting abilities of and the programs
available to the individuals seeking custody. See Holley, 544 S.W.2d at 372. Alexis’s
continued drug use over the course of the proceedings, her failure to timely complete
inpatient treatment, and her failure to submit to random drug testing per her service plan
are all factors that indicate Alexis does not have the parenting abilities to adequately care
for Roger. See In re J.M.T., 519 S.W.3d 258, 271 (Tex. App.—Houston [1st Dist.] 2017,
pet. denied) (“[G]iven his illegal drug use, failure to complete services, and his failure to
maintain contact with [the child] during the suit, the trial court could have reasonably
inferred that Father did not have the necessary parental abilities to care for a young
special-needs child.”); see also In re S.W.W., No. 14-22-00503-CV, 2022 WL 17982904,
*12 (Tex. App.—Houston [14th Dist.] Dec. 29, 2022, no pet.) (mem. op.) (“Based on
18 Father’s inability to achieve and maintain sobriety, the trial court reasonably could have
found that Father’s parental abilities weighed in favor of finding termination was in Sam’s
best interest.”). Further, the trial court could have concluded that because Alexis was
unable to comply with her drug testing because of transportation issues, she would also
have difficulty ensuring Roger attended his necessary medical appointments. See In re
J.M.T., 519 S.W.3d at 270 (“A fact finder may infer from a parent’s failure to take the
initiative to complete the services required to regain possession of [her] child that [s]he
does not have the ability to motivate [her]self to seek out available resources needed now
or in the future.”).
These factors weigh in favor of termination.
4. Plans for the Child and Stability of the Home
“The fact finder may compare the parent’s and the Department’s plans for the child
and determine whether the plans and expectations of each party are realistic or weak and
ill-defined.” In re U.G.G., 573 S.W.3d 391, 403 (Tex. App.—El Paso 2019, no pet.).
Toungate testified that Roger is well-cared for by Villarreal and Villarreal testified that she
plans to move forward with adoption. Alexis testified that she had offers to continue living
with her father or to move in with one of her adult children. Toungate was not able to
testify to the safety of Alexis’s father’s home, as she had not been able to personally
examine it. However, Alexis testified that a prior Department caseworker had approved
Alexis’s father’s home.
Alexis discussed the possibility of having a 24-hour monitor with her so that she
could have increased supervised visitation with the child. However, the trial court could
19 have disbelieved her testimony in this regard. See In re J.F.-G., 627 S.W.3d at 312.
Moreover, progressing from having two-hour supervised visits at a public facility twice a
week to having the child with her at all times, albeit supervised by a friend or family
member, is not necessarily realistic. See In re U.G.G., 573 S.W.3d at 403. Alexis also did
not explain how she would be able to support the child or how she would transport him to
or from his necessary appointments. See In re J.M.T., 519 S.W.3d at 270. After comparing
Alexis’s plan with that of the Department and Villarreal, the trial court could have found
that Villarreal will be able to offer Roger the permanency and stability that he would not
be able to have with Alexis. These factors weigh in favor of termination.
5. Acts or Omissions and Excuses Therefor
The eighth and ninth factors deal with any acts or omissions on the part of a parent
that may indicate the existing parent-child relationship is not a proper one, and whether
there are any excuses for those acts or omissions. See Holley, 544 S.W.2d at 372. Drug
or alcohol abuse can be considered an act or omission that constitutes a threat of
significant impairment to the child. In re S.T., 508 S.W.3d at 492. Additionally, “[a]
factfinder may reasonably infer from a parent’s refusal to take a drug test that the parent
was using drugs.” In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied).
According to Alexis, she would miss drug tests “because [she] didn’t have transportation
or [she] was at work.” Alexis maligned the Department for not helping her with getting
transportation to and from the drug tests. However, Toungate testified that “the
Department offered to take her and even set up transportation for her and she did not
complete those tests.” The trial court was entitled to believe Toungate and disbelieve
20 Alexis. See In re J.F.-G., 627 S.W.3d at 312.
Alexis also acknowledged that she was a drug addict stating, “My baby being
positive, yes, that clearly shows that I’m an addict.” Alexis testified that she “did a line of
meth” on June 20, 2022, after she had been court-ordered to attend inpatient treatment.
And although she later testified that she was actually clean and had difficulty being
admitted into treatment because of this, the trial court could have resolved this disputed
evidence against her. See id.; In re S.T., 508 S.W.3d at 492.
Although Alexis was in an inpatient facility on the second day of her testimony,
“[t]he trial court may reasonably decide a parent’s changes before trial are too late to
impact the best-interest decision.” In re J.J.L., 578 S.W.3d at 612. “Although a reasonable
fact finder could look at Mother’s attempts at sobriety and decide they justified the risk of
keeping her as a parent, we cannot say the trial court acted unreasonably in finding
[Roger’s] best interest lay elsewhere.” Id. Further, in a legal sufficiency challenge, we do
not attribute “greater weight to [a parent’s] recent improvements and less to [her] past
challenges.” In re J.O.A., 283 S.W.3d at 346. These final factors weigh in favor of
termination.
In conducting our legal and factual sufficiency review, we observe that eight of the
nine Holley factors weigh in favor of the trial court’s finding that termination was in Roger’s
best interest. This evidence was legally and factually sufficient to support the trial court’s
finding. See In re J.M.T., 519 S.W.3d at 268. We therefore overrule Alexis’s second issue.
IV. MOTION FOR NEW TRIAL
Finally, Alexis contends the trial court abused its discretion by denying her motion
21 for new trial based on newly discovered evidence—namely, that after trial concluded,
Alexis successfully completed her inpatient treatment.
A. Standard of Review
A party seeking a new trial on grounds of newly-discovered evidence must demonstrate to the trial court that (1) the evidence has come to its knowledge since the trial, (2) its failure to discover the evidence sooner was not due to lack of diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it would probably produce a different result if a new trial were granted.
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). In custody cases, “the
newly-discovered evidence must strongly show that the original custody order would have
a serious adverse effect on the interest and welfare of the child and that presentation of
that evidence at another trial would probably change the result.” In re K.L.R., 162 S.W.3d
291, 311 (Tex. App.—Tyler 2005, no pet.). We review the denial of a motion for new trial
for an abuse of discretion. Waffle House, Inc., 313 S.W.3d at 813.
Trial concluded in this case on December 2, 2022. At the hearing on Alexis’s
motion for new trial, she introduced as evidence a certificate from The Right Step which
indicated that she had successfully completed “The Promises Right Step RTC Program”
on December 27, 2022. Alexis continued to maintain at the hearing that she “finished all
[her] services back in October” of 2021. However, Alexis also recognized that she had
been admitted to inpatient treatment facilities on at least four occasions prior to trial but
failed to complete those programs for one reason or another.
The Department argues that Alexis’s evidence cannot support a new trial because
it is newly created evidence rather than newly discovered evidence. Some of our sister
22 courts have held that “evidence not in existence prior to judgment cannot support a new
trial.” See Banker v. Banker, 517 S.W.3d 863, 878 (Tex. App.—Corpus Christi–Edinburg
2017, pet. denied) (collecting cases); Sifuentes v. Tex. Employers’ Ins. Ass’n, 754 S.W.2d
784, 787 (Tex. App.—Dallas 1988, no writ) (“Sifuentes’ evidence fails in one obvious
respect. Even with due diligence, the evidence could not have been discovered prior to
trial because prior to trial it did not exist.”); see also In re C.Y.C., No. 14-11-00341-CV,
2012 WL 3223674, at *20 (Tex. App.—Houston [14th Dist.] Aug. 9, 2012, pet. denied)
(mem. op.) (“Mother’s evidence constitutes new evidence rather than newly discovered
evidence; this evidence does not satisfy the burden that must be met to obtain a new trial
on the ground of newly discovered evidence.”); Martin v. Martin, No. 09-94-370CV, 1995
WL 599023, at *5 (Tex. App.—Beaumont Oct. 12, 1995, no pet.) (mem. op.) (“The reason
for granting a new trial on the grounds of newly discovered evidence is exactly what the
name implies: evidence has been ‘newly discovered’ rather than newly created.”).
However, we have not adopted a similar blanket rule. See Banker, 517 S.W.3d at
878–80 (declining to adopt the rule that new evidence does not constitute newly
discovered evidence and instead holding that the new evidence was cumulative). And we
need not adopt such a rule here, as Alexis has failed to meet her burden to show that “the
evidence is not cumulative” and that “the evidence is so material it would probably
produce a different result if a new trial were granted.” See Waffle House, 313 S.W.3d at
813.
“[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.”
23 In re J.L.C., 582 S.W.3d 421, 432 (Tex. App.—Amarillo 2018, pet. ref’d). It was within the
trial court’s discretion to determine that Roger’s need for permanence outweighed the
progress demonstrated by Alexis’s completion of inpatient treatment after trial was
completed. See id. Additionally, Alexis testified that, regardless of the outcome of the
termination hearing, she would complete the inpatient drug treatment in which she was
then-enrolled. Thus, the “evidence of post-trial events was cumulative of [Alexis’s] well-
developed projections at trial.” Banker, 517 S.W.3d at 879. Finally, although the discovery
of this particular certificate was not possible prior to trial, Alexis had ample opportunity to
“discover” evidence of a similar probative force by completing inpatient treatment prior to
trial. See Waffle House, Inc., 313 S.W.3d at 813. Based on this record, we conclude the
trial court did not abuse its discretion by denying Alexis’s motion for new trial. See id. We
overrule Alexis’s final issue.
V. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES Justice
Delivered and filed on the 6th day of July, 2023.