Opinion issued August 10, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-21-00081-CV ——————————— IN THE INTEREST OF T.L.B., A.J., AND L.J., children
On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2019-02943J
MEMORANDUM OPINION
L.W. appeals the termination of her parental rights to three children: T.L.B.,
A.J., and L.J. She challenges (1) the sufficiency of the evidence to support
termination under three separate predicates, (2) the constitutionality of termination
under Subsection M, (3) the finding against her on whether her failure to comply
with a court order was not her fault to avoid termination under Subsection O, (4) the sufficiency of the evidence to support the court’s best interest finding, and (5) the
designation of the Department of Family and Protective Services as the children’s
post-termination conservator.
We affirm.
Background
The mother, the children who are the subject of this suit, and the mother’s two older children
The mother appealing the termination of her parental rights is L.W. We will
refer to her by the pseudonym, Lesia. Three of her children are the subjects of this
termination suit. We list them below along with the pseudonym we will use when
referring to them:
Child Date of Birth Age at Termination Pseudonym A.J. November 8, 2011 8 Ameer L.J. December 11, 2012 7 Lela T.L.B. March 26, 2014 6 Tiana
During the August 2020 termination trial, the Department entered into
evidence a decree of termination dated December 8, 2010, through which Lesia’s
parental rights to two older children were terminated. Those two children are listed
below:
Child Date of Birth Age at Termination Pseudonym A.L.D. August 22, 2007 3 Aaliyah I.L.W. December 22, 2009 11 months Irvin
2 The 2010 termination of parental rights was under Subsections E (endangering
conduct) and O (noncompliance with court order). In Lesia’s words, the termination
was for “neglectful supervision and marijuana use.” Lesia’s date of birth is listed on
some documents in the record. She was born on April 2, 1992. Thus, on the date of
the first termination—December 8, 2010—she was 18 years and 8 months old. The
record does not reveal how old Lesia was when the endangering conduct occurred.
The circumstances that led the Department to begin termination proceedings as to Ameer, Lela, and Tiana
The Department filed its original petition to seek termination of Lesia’s
parental rights to Ameer, Lela, and Tiana in July 2019. Attached to its petition was
an 8-page affidavit by Department Master Investigator, T. Ray.1 The affidavit
discusses the Department’s history with Ameer, Lela, and Tiana. The affidavit states
that the Department became involved in 2013 on allegations of neglectful
supervision and drug use by Lesia, which prompted transfer of the matter to the
Department’s Family Based Safety Services division and ongoing services for the
family. The Department became involved again in November 2018 due to
allegations of neglectful supervision and drug use as well as concerns that the
children were not enrolled in school.
1 The Department later filed a proposed temporary order with an amended affidavit attached. 3 Ray’s affidavit details the Department’s pre-2019 contacts with Lesia and the
children and discusses allegations of abuse and neglect as well as the Department’s
investigation of these allegations. But Ray did not testify at the August 2020
termination trial. And the Department caseworker who did testify, D. Johnson,
provided no evidence about the Department’s investigations into the allegations or
general case-history and family information. So the details of the allegations and the
truth of the assertions are not part of this record in conducting our sufficiency review.
See In re E.F., 591 S.W.3d 138, 142 n.4 (Tex. App.—San Antonio 2019, no pet.).
Lesia was asked at trial whether the children were removed from her in 2013
and 2014, even before the final removal in 2019. She disputed that the children were
removed from her two times before 2019. She testified that they were removed only
once, in 2013. Any contact with the Department in 2014, according to Lesia, was
limited to allegations without a removal.
Johnson testified that the three children were removed again in 2014, meaning
that Tiana was removed at birth or shortly after.
Johnson testified that Lesia was provided services when the children were
removed in 2019 but had not shown that she had learned from the services she
completed. Nor had she completed all the services required by court order. Lesia had
not established stability in her housing or employment either. And she was not
involved in the children’s education.
4 Johnson acknowledged that, toward the end of the case, Lesia provided
several paystubs to prove she had a job and a copy of an apartment lease to prove
she had housing. According to Johnson, though, these recent improvements did not
alleviate the Department’s concerns about income and housing instability.
The Department sought termination of Lesia’s parental rights because Lesia
had not established, within the year that the termination case was pending, that she
was able to parent her children or providing them stability. By comparison, the
children’s placement with a relative had been successful. The children were doing
“extremely well” in that placement, they had stability, and the placement wanted to
adopt all three children to provide them a permanent home.2
Lesia testified about her efforts. She testified that she had been employed for
three months. At some point, though the record is not clear when, Lesia leased a one-
bedroom apartment, and later, the month before trial, she upgraded to a two-bedroom
to prepare for the return of her children.
Lesia testified that she began a parenting class eight weeks before trial. She
had three weeks of classes left to complete. She failed to explain waiting more than
nine months to begin the required classes, other than a positive COVID rapid test in
June 2020 that was followed by a lab-confirmed negative test. She testified:
2 The Department elected not to disclose the identity of the placement, informing the court only that it was a relative of Lesia’s. Lesia stated that she did not believe that her children were with any of her relatives. 5 I have been doing the best that I can for my children. I take responsibility for me not completing my services, but I feel that I have come a long way, and I will stop at nothing to try to get my children. I have provided stability as long as I’ve been having this job. I have not been able to see my children in person to bring them anything lately [because of COVID restrictions]. But as soon [as] I was able to see them again, I have not missed a visit without bringing them anything.
Johnson agreed that Lesia’s visits with the children had gone well, but she
testified that it was more than just the parenting classes that Lesia had not completed.
Lesia also had not completed her court-ordered individual counseling, substance-
abuse individual counseling, and domestic-violence education by the trial deadline,
even though she had a year to complete the services.
That court order incorporated a September 25, 2019 parenting plan, which
required Lesia to perform various, enumerated services to help her establish a stable
and appropriate home environment for her children. Under the court order, Lesia had
to attend parenting classes, submit to a psychological evaluation and follow any
recommendations that resulted from the evaluation, provide evidence of stable
housing and income, maintain a drug-free environment, and engage in various other
services.3 The deadline to complete these services was August 31, 2020.
The Department’s permanency plan for the children, as of October 2019, was
family reunification. The plan changed to relative adoption in February 2020 “due
3 The copy of the parenting plan in the record does not have Lesia’s signature on it. The signature line is blank. 6 to lack of progress on services in family plan of service.” That was the same month
that Lesia tested positive for cocaine on a hair-follicle drug test. Lesia later tested
negative, in June 2020, on another hair-follicle drug test, but the permanency plan
was not revised. That same month, the trial court issued a permanency-hearing order
that included a finding that, as of that date, Lesia had shown “adequate and
appropriate compliance with the service plan.” The June 2020 order set the date for
the termination trial on August 12, 2020, and kept relative adoption as the
Department’s permanency goal.
At the August trial, Lesia was asked about a positive drug test in July 2020.
She denied having a positive result that month. The Department did not seek to admit
a drug-test result from July 2020, and any discussion of that test result occurred
outside the trial itself and is thus not trial evidence.
The Department sought termination under Subsection (D) (endangering
conditions), (E) (endangering conduct), (N) (constructive abandonment), and (O)
(failure to comply with court order). See TEX. FAM. CODE §§ 161.001(b)(1)(D), (E),
(N), (O). The only witnesses were Lesia, Johnson, and the guardian ad litem, L.
Richardson. Both Johnson and Richardson testified that it was in the children’s best
interest to terminate Lesia’s parental rights, given her repeated drug use and
instability.
7 Of the four predicate grounds offered by the Department, the trial court
terminated under Subsection (O) only, rejecting termination under (D), (E), and (N).
But the trial court, sua sponte, also terminated Lesia’s parental rights under
Subsection (M) (prior termination under (D) or (E)) and (J)(i) (not enrolled in
school).
Sufficiency of Evidence to Support the Predicate Findings
Lesia challenges the sufficiency of the evidence to support termination under
any of the predicates listed in the termination decree. A single predicate finding
under Section 161.001(b)(1) of the Family Code can 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). Thus, if multiple predicate grounds are
found by the trial court, we will affirm on any one ground because only one is
necessary for termination of parental rights. In re T.G.R.-M., 404 S.W.3d 7, 13 (Tex.
App.—Houston [1st Dist.] 2013, no pet.).4 We begin with Subsection (O), the only
basis for termination in the decree of termination that the Department sought.
4 When termination is based on Subsection (D) or (E), we also analyze the sufficiency of the evidence to support those grounds, if raised on appeal, because of the future implications for termination as to later children under Subsection (M). In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (holding that allowing (D) and (E) findings to go unreviewed on appeal when the parent has presented the issue to the appellate court violates the parent’s due-process and due-course-of-law rights). Lesia’s parental rights to Ameer, Lela, and Tiana were not terminated under (D) or (E); therefore, the holding in In re N.G. does not apply. 8 A. Standard of review
A parent’s rights to the “companionship, care, custody, and management” of
his or her children are constitutional interests “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982); see In re M.S., 115 S.W.3d
534, 547 (Tex. 2003). A termination decree is final, irrevocable, and permanently
divests the parent of all legal rights, privileges, duties, and powers related to the
parent-child relationship, except for the child’s right to inherit. Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings and
strictly construe the involuntary termination statutes in favor of the parent. Id. But
the “rights of natural parents are not absolute” and the “rights of parenthood are
accorded only to those fit to accept the accompanying responsibilities.” In re A.V.,
113 S.W.3d at 361. Recognizing that parents may forfeit their parental rights by their
acts or omissions, the primary focus of any termination suit is protection of the
child’s best interest. See id.
Because of the severity and permanency of the termination of parental rights,
the evidence supporting termination must meet the threshold of clear and convincing
evidence. TEX. FAM. CODE § 161.001(b); In re J.F.C., 96 S.W.3d 256, 263 (Tex.
2002). “‘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. This is an
9 intermediate standard that falls between the preponderance standard used in ordinary
civil proceedings and the reasonable doubt standard used in criminal proceedings.
State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).
This heightened burden of proof results in a heightened standard of review. In
re J.G.S., 574 S.W.3d 101, 114 (Tex. App.—Houston [1st Dist.] 2019, pet. denied);
In re S.R., 452 S.W.3d 351, 358 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). When a parent challenges the legal sufficiency of the evidence supporting
termination, the court reviews all evidence in the light most favorable to the
termination finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d
336, 344 (Tex. 2009); In re J.F.C., 96 S.W.3d at 266. The court must assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at 266. It
should disregard all evidence that a reasonable factfinder could have disbelieved or
found to be incredible. In re J.O.A., 283 S.W.3d at 344; In re J.F.C., 96 S.W.3d at
266. If, after conducting a legal sufficiency review of the record evidence, the court
determines that no reasonable factfinder could have formed a firm belief or
conviction that the matter to be proved was true, the court must conclude that the
evidence on that matter is legally insufficient. In re J.O.A., 283 S.W.3d at 344–45;
In re J.F.C., 96 S.W.3d at 266.
10 Only when the factual sufficiency of the evidence is challenged does the
reviewing court review disputed or conflicting evidence. In re J.O.A., 283 S.W.3d
at 345; In re J.F.C., 96 S.W.3d at 266. “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, then the evidence is factually insufficient.” In re J.F.C., 96 S.W.3d at
266. We give due deference to the factfinder’s findings, and we cannot substitute
our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (per curiam). The factfinder is the sole arbiter of the credibility and demeanor
of witnesses. Id. at 109. We are not to “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).
Our opinion should explain why we have concluded that a reasonable factfinder
could not have credited disputed evidence in favor of the finding. In re J.O.A., 283
S.W.3d at 345.
B. The evidence supports the trial court’s finding under Subsection (O)
Lesia’s family-services plan was incorporated into the trial court’s order in
August 2019, meaning that failure to comply with the services plan would be
grounds for termination under Subsection (O). Her services plan listed the
Department’s concerns over Lesia’s parenting, including that she could not provide
11 her children with a safe environment or meet their educational needs. The
Department also had concerns that Lesia “may be under the influences of mind
altering drugs that may be the cause of the parent’s decisions [and parental choices].”
The services plan listed tasks Lesia needed to complete, which included
attending parenting classes and maintaining stable income, stable housing, and “a
drug free living environment,” among other things. The plan listed as its purpose to
help Lesia provide her children with “a safe environment within the reasonable
period specified in the plan,” and it warned that failure to provide a safe environment
could lead to termination of her parental rights. Lesia was given one year to complete
the services.
By her own testimony, Lesia used cocaine three months after the family
services plan was created. She then tested positive for cocaine on a hair-follicle drug
test. Her testimony about her December 2019 drug use and February 2020 failed
drug test was evidence of her failure to comply with the terms of the trial court’s
order.
Lesia testified that she tried to comply with the trial court’s order. She
completed most of the assessments, but she did not complete the counseling and
classes. She did not complete the individual counseling or substance-abuse
individual counseling. She began the parenting classes, but she did not start them
until two months before trial and, as a result, had not completed them by the trial
12 date. She began a job and signed an apartment lease, but those developments came
late in her case, just two-to-three months before the termination trial.
These court-ordered requirements were placed on Lesia because the
Department and, in turn, the trial court determined that they were necessary for Lesia
to establish that she is capable of providing a safe, stable, and secure environment
for her children.
Just before the termination trial began, the trial court conducted a permanency
hearing at which Johnson testified about Lesia’s status in complying with the court-
mandated services enumerated in the family services plan. Johnson did not repeat
her testimony during the subsequent trial.
At trial, Lesia did not dispute that she had not completed the court-ordered
requirements. In her brief, though, she argues there is insufficient evidence of a
failure to complete her services because the caseworker’s testimony about the
uncompleted services occurred during the preliminary portion of the hearing that
dealt with permanency, not after the hearing transitioned into the termination trial.
She argues that, during the trial portion of the hearing, the caseworker never testified
about which services were left incomplete. But Lesia, herself, testified that she did
not complete the services.
Lesia admitted that she began the parenting classes just two months before the
trial date and still had three classes left. She did not explain why she waited more
13 than nine months to begin this requirement. She also testified that she had not
completed the required evaluations and had just scheduled one of them for the day
after trial, asserting that there had been a misunderstanding whether an earlier phone
conversation had counted as her evaluation. Thus, Lesia’s own testimony established
her failure to complete the family service plan requirements.
Lesia also argues that the trial court could not rule that she failed to comply
with the plan because the plan was erroneously admitted into evidence. She bases
this argument on the Department’s failure to comply with a standing court order that
required the parties to e-file their intended evidence at least 48 hours before trial.
The Department filed the services plan after 6:00 pm, the night before trial. Lesia
argues that the trial court abused its discretion in admitting this evidence over her
objection.
But the plan did not have to be admitted for the trial court to determine that
Lesia failed to comply with its provisions. A trial court may take judicial notice of
its file in a parental-termination suit, including the pleadings, the existence of a
family services plan, and orders adopting family services plans. In re R.W., No. 01–
11–00023–CV, 2011 WL 2436541, at *7 (Tex. App.—Houston [1st Dist.] June 16,
2011, no pet.) (mem. op.). And we may presume that a trial court presiding over a
termination bench trial took judicial notice of the existence of a family services plan
in its record without a request being made and without an announcement that it has
14 done so. D.M. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-20-00557-CV, 2021
WL 1418986, at *10 (Tex. App.—Austin Apr. 14, 2021, no pet.) (mem. op.); In re
K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); In
re S.J.S., No. 04-12-00067-CV, 2012 WL 2450817, at *6 (Tex. App.—San Antonio
June 27, 2012, pet. denied) (mem. op.); In re A.W.B., No. 14–11–00926–CV, 2012
WL 1048640, at *3 (Tex. App.—Houston [14th Dist.] Mar. 27, 2012, no pet.) (mem.
op.) (presuming trial court took judicial notice of order adopting family service
plan).
Lesia admitted she did not complete her services. And she admitted to using
cocaine while under the family services plan, even though the plan required that she
maintain a drug-free environment. Lesia is not relieved of the plan’s requirements
simply because the plan may not have been properly admitted into evidence. In re
A.X.A., No. 04-09-00519-CV, 2009 WL 5150068, at *5 & n.3 (Tex. App.—San
Antonio Dec. 30, 2009, no pet.) (upholding termination of parental rights under
Subsection (O) on evidence that parent failed to comply with court order, even
without parenting plan in evidence because trial court could take judicial notice of
its own files).
We will presume that this trial court took judicial notice of the family services
plan in its record. And we conclude that there was legally and factually sufficient
evidence that Lesia failed to adhere to the material requirements of the plan. The
15 evidence supports the trial court’s determination that, by failing to complete her
service plan, Lesia failed to finish the steps necessary to demonstrate her ability to
provide a safe environment for her children. See In re A.J.E.M.-B., No. 14-14-00424-
CV, 2014 WL 5795484, at *12 (Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no
pet.) (analyzing termination under Subsection (O) for failure to comply with trial
court’s order).
Next, Lesia argues that, even if she did not complete her services, she has
demonstrated recent efforts to engage in her services and a strong desire to have her
children returned to her care. She argues that termination under Subsection (O) is
not justified because she met her burden under Section 161.001(d) to establish by a
preponderance of the evidence that, while she could not complete services, she made
a “good faith effort to comply with the order” and her “failure to comply with the
order is not attributable to any fault” of her own. TEX. FAM. CODE § 161.001(d). We
cannot agree.
Lesia provided no explanation why she waited over nine months to begin
parenting classes. Nor did she explain what prevented her from completing the
required counseling. She testified that she thought a phone call to the counseling
office counted as her court-ordered evaluation, but her plan required more than an
evaluation. It required her to complete the related counseling, which she did not do.
16 Lesia admitted to using cocaine while under the family services plan, which
violated material aspects of the plan directly related to the reasons the children came
under the Department’s care to begin with—a history of drug use and child neglect.
Lesia testified that the cocaine use was an isolated, bad decision. Even if the trial
court credited her testimony—which it did not have to do—voluntary drug use while
one’s children have been removed based on a history of drug use and child neglect
goes against Lesia’s argument that her failure to comply with the family services
plan was due to no fault of her own. See In re D.K.J.J., No. 01-18-01081-CV, 2019
WL 2455623, at *16 (Tex. App.—Houston [1st Dist.] June 13, 2019, pet. denied)
(mem. op.) (rejecting mother’s affirmative defense argument under Section
161.001(d)).
Reviewing the evidence under the applicable standards, we conclude the
evidence is legally and factually sufficient to support the trial court’s finding that
Lesia failed to comply with court-ordered services to obtain the return of her children
and that she failed to prove by a preponderance of evidence that she could not
comply with specific provisions but that she made a good-faith effort to comply and
any failure was not her fault. See TEX. FAM. CODE §§ 161.001(b)(1)(O); 161.001(d).
Having concluded the evidence supports the trial court’s finding under Subsection
17 (O), we need not review the sufficiency of the evidence to support termination under
any other subsection or the constitutionality of termination under Subsection (M).5
Best Interest
In her fifth issue, Lesia contends there is insufficient evidence to support a
finding that termination is in the three children’s best interest.
A. Applicable law
Along with a predicate violation, the Department must establish by clear and
convincing evidence that termination is in the children’s best interest. TEX. FAM.
CODE § 161.001(b)(2). There is a strong presumption that the child’s best interest
5 We recognize that the trial court and the parties in this proceeding had other hearings before the trial date, including a permanency hearing immediately before trial at which the caseworker provided factual information about the reasons for removal and Lesia’s compliance and noncompliance with the family services plan. Those proceedings allowed the court a level of familiarity with the case and potentially caused the witnesses and attorneys to have facts in mind that were not actually introduced as evidence at the termination trial.
There is only one volume of the reporter’s record for this termination trial that contains testimony. It is volume two, and it is only 69 pages long. Trial testimony does not begin until page 25. It ends on page 61. That is just 36 pages of testimony to establish, by clear and convincing evidence, not only the grounds for termination but also that it is in the best interests of these children to permanently sever their relationship with their mother.
We, of course, are mindful of the extraordinary burdens placed on all participants in this system. Yet, we must reiterate what our colleagues at the San Antonio Court of Appeals earlier urged: “Given the constitutional rights of the parents in these proceedings, the future placement of the children involved, and the effect such placement will have on their lives, . . . we urge the trial court and the parties to more completely develop the evidence at trial, so the appellate record is commensurate with the finality of parental termination.” Interest of E.F., 591 S.W.3d 138, 142 (Tex. App.—San Antonio 2019, no pet.). 18 will be served by preserving the parent-child relationship. In re G.M., 596 S.W.2d
846, 847 (Tex. 1980); see TEX. FAM. CODE § 153.131(b). Because of the strong
presumption that maintaining the parent-child relationship is in each child’s best
interest and the due process implications of terminating a parent’s rights without
clear and convincing evidence that termination is in the child’s best interest, “the
best interest standard does not permit termination merely because a child might be
better off living elsewhere. Termination should not be used to merely reallocate
children to better and more prosperous parents.” In re W.C., 98 S.W.3d 753, 758
(Tex. App.—Fort Worth 2003, no pet.) (internal citation omitted); see In re E.N.C.,
384 S.W.3d 796, 809 (Tex. 2012).
A factfinder may consider several factors to determine the child’s best interest,
including the child’s desires, the child’s present and future physical and emotional
needs, the present and future emotional and physical danger to the child, the parental
abilities of the people seeking custody, programs available to assist those people in
promoting the child’s best interest, plans for the child by those people or by the
agency seeking custody, the acts or omissions of the parent that may suggest that the
existing parent-child relationship is not appropriate, and any excuse for the acts or
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
The lack of evidence on some factors does not preclude a factfinder from
reasonably forming a strong conviction or belief that termination is in the child’s
19 best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). But the lack of evidence
cannot be used as if it were clear and convincing evidence supporting a termination
finding. In re E.N.C., 384 S.W.3d at 808. In some cases, undisputed evidence of only
one factor may be enough to support a finding that termination is in the child’s best
interest; in other cases, there could be “more complex facts in which paltry evidence
relevant to each consideration mentioned in Holley would not suffice” to support
termination. Id. Our “best interest” analysis is not limited to these Holley factors;
other factors may be considered. Holley, 544 S.W.2d at 372.
“A best-interest analysis may consider circumstantial evidence, subjective
factors, and the totality of the evidence as well as the direct evidence.” In re E.D.,
419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). “A trier of fact
may measure a parent’s future conduct by his past conduct and determine whether
termination of parental rights is in the child’s best interest.” Id.
B. The evidence supports a determination that termination is in the children’s best interest
We will review the evidence in the framework of the Holley factors.
1. The children’s desires
The Department presented no evidence of the children’s desires. Lesia
testified that Ameer asked her, at a visit the day before trial, how long it would take
before they could go home. She assured him that she loves him but said that she did
not know what would happen at trial.
20 This factor does not support termination.
2. The children’s present and future physical and emotional needs and danger
Lesia testified that her two older children, Aaliyah and Irvin, were removed
due to drug use and neglect. The caseworker testified that Ameer, Lela, and Tiana
were removed twice before the 2019 removal that led to termination. Lesia admitted
that she used drugs after the children’s last removal and tested positive for cocaine
in early 2020. Lesia did not complete drug treatment counseling. It was disputed
whether she tested positive again just one month before trial, in July 2020.
Lesia’s inability to comply with the requirement to maintain a drug-free
environment as a prerequisite to regaining conservatorship of her children
reasonably supports a determination that she cannot prioritize the children’s needs.
Cf. In re N.J.H., 575 S.W.3d 822, 841 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied) (J. Brown, concurring) (stating that “family services plans approved and
ordered by the trial courts frequently require a parent to abstain from drug use as a
condition of visitation or reunification,” and that factfinders could conclude that
parental rights should be terminated where a parent does not abstain long enough to
satisfy the plan, despite knowing that a failure to comply could support termination.)
That evidence, coupled with the repeated Department involvement based on
concerns of drug use and child neglect and Lesia’s admitted history of drug use
affecting her parental abilities, supports a conclusion that Lesia’s home environment
21 may be a physical and emotional danger to the young children. See In re M.M.M.,
No. 01-16-00998-CV, 2017 WL 2645435, at *15 (Tex. App.—Houston [1st Dist.]
June 16, 2017, no pet.) (mem. op.) (concluding that inability to stop drug use
supported finding that termination was in child’s best interest).
The Department argues that the past instability in the children’s lives and
Lesia’s documented inability to care for her children indicate that returning them to
Lesia would be inappropriate. While there is considerable documentation in the case
file related to the children’s residing outside Lesia’s home in the past, as Lesia points
out in her briefing, that evidence was not introduced at the termination trial.6 Even
without that evidence, though, there is adequate evidence of repeated drug use and
instability to conclude that this factor supports termination.
3. The parenting abilities of people seeking custody
The Department’s caseworker, D. Johnson, testified that the children are
doing “extremely well” with the adoptive placement. The adoptive foster parents are
giving the children the stability they needed and meeting all their emotional and
educational needs.
The Child Advocates ad litem, L. Richardson, testified that the children are in
a good placement where they “are doing very well” and being “well taken care of.”
They have structure and stability. They go to school. And they have a “very good
6 See note 5 above. 22 life.” From these statements, the trial court reasonably could have concluded that the
adoptive placement is providing appropriate and supportive parenting to the
children.
Johnson testified about Lesia’s parenting history, including the earlier
termination of parental rights, in 2010, under Subsection (E) for endangering
conduct involving the two older children. Richardson testified that placing Ameer,
Lela, and Tiana with Lesia would be disruptive and destabilizing for the children,
particularly given Lesia’s lack of stable employment and housing as well as her
positive drug tests.
While this Court would prefer to have a more detailed discussion of the
parenting abilities of those being considered for conservatorship, we conclude that
this record evidence relevant to this factor, though brief, weighs in favor of
termination.
4. The available programs for conservators to promote the children’s best interest
There was no testimony on the topic of available future services, but Lesia’s
history of services was discussed briefly. Lesia had services offered to her in the
2010 termination, again in 2013 after having Ameer and Lela, and possibly again in
2014 when Tiana was born. Only one of those times did she complete the services
required. That was in 2013. Even after fully completing services, the circumstances
23 of the children’s care led to subsequent Department involvement and another
removal in 2019. Drug use remained an obstacle despite services being offered.
Even if future services are available to Lesia, the evidence does not support a
conclusion that she would fully avail herself of those services or incorporate them
into her parenting practices.
5. Lesia’s and the Department’s plans for the children
Lesia’s testimony was brief on this topic. She testified that she moved into a
bigger, two-bedroom apartment so that her children would have their own room.
And she testified that she loves her children and wants them with her. She did not
discuss the assertion that the children had breaks in their schooling or any
educational plans for the children. Nor did she address the history of the children
living with other people and how she might be able to support and care for the kids
in her own home in the future.
The other witnesses were nearly as brief on this topic. Johnson testified that
the current placement wanted to adopt the children and would give the children the
stability and permanency that they needed. Further, they would provide for their
education needs moving forward. The placement would be permanent, and the
children would remain together.
The evidence on this factor, though limited, weighs in favor of termination.
24 6. Lesia’s acts or omissions that may suggest that the existing parent-child relationship is not a proper one and any excuse for those acts or omissions
Lesia admitted to a history of drug use and having her parental rights
terminated in the past due to drug use and neglect. Even after the Department became
involved in the care of these three children, Lesia used drugs, which led to a positive
drug test and jeopardized her ability to have her children returned to her. Lesia did
not complete the parenting classes or substance abuse classes to demonstrate a
change of course or earnest effort to address the recurring drug use.
While her efforts to obtain stable income and housing during the last couple
months of the case are to be commended, on balance, her acts and omissions, in the
aggregate, suggest that the parent-child relationship is not one that would be stable
and healthy for the children without significant community and government
assistance. While there are some indications that Lesia’s family and friends have
been willing to help house and raise the children in the past, their substitute care is
not the focus of this factor: it is Lesia’s. See In re C.G., No. 13-15-00360-CV, 2016
WL 8737455 (Tex. App.—Corpus Christi Jan. 7, 2016, no pet.) (mem. op.)
(considering parent’s reliance on others to provide care for children in evaluating
whether termination of parental rights is in best interest of child; affirming
termination). On balance, the evidence supports a determination that Lesia’s acts or
25 omissions suggest that the parent-child relationship is not a proper one and that
efforts to stabilize and support the relationship have been unavailing.
7. Best-interest conclusion
As stated, the trial evidence is not well-developed. There is much more
material in the case file than in the record. Yet we must limit our review to the trial
evidence. See In re B.R., 456 S.W.3d 612, 617 n.4 (Tex. App.—San Antonio 2015,
no pet.). Even limiting our review to the trial evidence, we conclude that the evidence
favors the trial court’s best-interest determination. See In re G.M., 2019 WL
3432088, at *4–5 (J. Watkins, concurring) (stating that appellate court must be
limited to trial record, expressing frustration at the “scant record” provided by the
parties with general references to material not in the appellate record, but concurring
that, even with such a limited record, there was legally and factually sufficient
evidence to support the predicate finding, the best interest finding, and, ultimately,
termination).
Stability is a paramount consideration in a termination suit. In re J.S.B.,
No. 01-17-00480-CV, 2017 WL 6520437, at *21 (Tex. App.—Houston [1st Dist.]
Dec. 21, 2017, pet. denied) (mem. op.); In re J.D., 436 S.W.3d 105, 119–20 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (“Stability and permanence are
paramount in the upbringing of children.”); In re K.C., 219 S.W.3d 924, 931 (Tex.
App.—Dallas 2007, no pet.) (child’s need for stable, permanent home paramount
26 consideration in best interest determination). Lesia has a history of instability. There
have been recurring issues that have led to the Department removing the children
and offering services to Lesia. Even so, Lesia did not complete the services by the
deadline to establish her ability to provide a safe and appropriate home environment
for her children. Nor did she explain why she could not complete all her services.
And Lesia admitted to using drugs while her termination suit was pending, in
violation of her parent services plan and court order, even though her drug use was
a material aspect of the Department’s concerns over her ability to adequately care
In contrast, the evidence shows that the adoptive placement is providing
stability and educational support. The children are doing “extremely well” and being
“well taken care of” in what is expected to be a permanent home together.
The evidence is factually and legally sufficient to support the trial court’s best-
interest finding.
Post-Termination Conservatorship Challenge
In her final issue, Lesia argues that there was legally and factually insufficient
evidence to support the trial court’s order appointing the Department as managing
conservator of the children.
When the parental rights of all living parents of a child are terminated, the
trial court must appoint a “competent adult, the Department of Family and Protective
27 Services, or a licensed child-placing agency as managing conservator of the child.”
TEX. FAM. CODE § 161.207(a); see In re D.K.W., Jr., No. 01-17-00622-CV, 2017
WL 6520439, at *5 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet. denied)
(mem. op.). 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); In re A.C., 394 S.W.3d 633, 644 (Tex. App.—
Houston [1st Dist.] 2012, no pet.).
An order terminating the parent-child relationship divests a parent of legal
rights and duties 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.” In re D.K.W., Jr., 2017 WL 6520439, at *5
(quoting In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied)).
Because we have overruled Lesia’s challenge to the portion of the trial court’s
order terminating her parental rights, the order has divested Lesia of her legal rights
and duties related to Ameer, Lela, and Tiana. See TEX. FAM. CODE § 161.206(b); In
re D.K.W., Jr., 2017 WL 6520439, at *5. Lesia therefore does not have standing to
challenge the portion of the order appointing the Department as the children’s
28 conservator. In re D.K.W., Jr., 2017 WL 6520439, at *5. We overrule Lesia’s final
issue.
Conclusion
We affirm the termination of Lesia’s parental rights as to Ameer, Lela, and
Tiana under Subsection (O), having concluded that there is sufficient evidence
from which the trial court could have formed a firm belief or conviction that Lesia
failed to comply with the court-ordered service plan and that termination is in the
children’s best interest.
Sarah Beth Landau Justice
Panel consists of Chief Justice Radack and Justices Landau and Countiss.