NUMBER 13-23-00583-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF Z.K.R., A CHILD
ON APPEAL FROM THE 135TH DISTRICT COURT OF VICTORIA, COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Peña Memorandum Opinion by Justice Longoria
Appellant C.R. (Mother) appeals a judgment terminating her parental rights to her
child Z.K.R. 1 Mother argues that the evidence is insufficient to support: (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 or an alias. See TEX. FAM. CODE ANN. § 109.002(d). I. BACKGROUND
A. Pretrial Proceedings
Mother has six children, including Z.K.R., who was four years old at the time of
trial. According to the affidavit in support of emergency removal, on May 30, 2022,
appellee, the Department of Family and Protective Services (the Department), received
a referral stating that Z.K.R. was in the hospital having sustained second degree burns to
his feet and ankles, burns to the back of his legs, bruising to his body and face, and “first
degree burns to his genital[s] with suspicious bruising to his shoulders and back.” The
following day, Department Investigator Jazzmion Owens met with Mother at the hospital
where Z.K.R. was med-flighted to for care. According to the affidavit, Mother informed
Owens that Z.K.R. was not in Mother’s care when he sustained his injuries, and that
Mother’s cousin D.L. was babysitting at the time. Mother confirmed that her parental rights
to her four older children were terminated due to her history of drug use. The affidavit
stated that Mother was aware that D.L. had a history of child abuse and drug abuse.
Special Investigator Monica Cervera spoke with Z.K.R.’s maternal grandmother, S.M., at
the hospital and was informed that Z.K.R. was with D.L. beginning Thursday May 26,
2022 and was returned to Mother’s care on Monday May 30, 2022, after having sustained
his injuries. Cervera also spoke with Mother, who informed her that she did not know
where D.L. lived, or where Z.K.R. slept or how he was cared for when he was with D.L.
Mother admitted to methamphetamine use. After the long weekend D.L. returned Z.K.R.
to Mother and informed her that Z.K.R. had been burned in the bath. A.R., the alleged
2 father, 2 informed Holly Hamilton, a Department caseworker, that he told Mother not to
“let [D.L.] have his son” because of how Z.K.R. responded when near D.L., which he
described as “screaming like he saw a boogie man.”
On June 2, 2022, D.L. was interviewed by Hamilton at the Victoria County Sheriff’s
Office after having been detained on a drug charge. D.L. informed Hamilton that Z.K.R
sustained his burns in the bath, explaining that she left Z.K.R. alone for “five to [ten]
minutes” and she heard him scream. When she went to check on him, the hot water was
on. The Department affidavit stated:
[D.L.] stated the bathtub faucet was turned down and to the left which indicated that the hot water was on. She reported he would not come to her. He was sitting in water that was up to his naval. She made him stand and she took him to her bed. While enroute to the bed, [Z.K.R.] hit his head on the doorframe causing a red mark to his left temple area. She denies knowledge of any other bruising. [D.L.] stated she observed blisters to form after 2-3 minutes. She would pop the blisters and then apply peroxide and a spray on antibiotic. At 1:00 am she checked him again. More blisters had formed, and she popped those and repeated the same treatment with peroxide and spray on antibiotic. [D.L.] stated she returned the child home to [Mother] on Monday, May 30, 2022[,] at roughly 11 am. She advised the mother that the child had been burned and to “put cream on it.”
D.L. also admitted to a prior criminal history involving selling drugs. She stated she also
gave Mother drugs, including “methamphetamines and Xanax whenever” Mother asked
for them.
The Department received a forensic assessment from Center for Miracles which
concluded that Z.K.R.’s injuries “provide[d] substantial evidence of physical abuse” and
2 Mother indicated that there were two men who could possibly be Z.K.R.’s father, one of which
was A.R., the father of her four older children. Subsequent DNA testing confirmed that A.R. was not Z.K.R.’s father. The other possible father is deceased, and no DNA testing was performed to determine if he was Z.K.R.’s father. 3 “concern for medical neglect due to his poor dentition.” The hospital’s social worker,
Robyn Gambrel, also informed the Department that Mother “will let patient cry in the bed
while she sleeps on the couch,” “Mother didn’t feed patient dinner” after Z.K.R. told her
he was hungry, and Mother left Z.K.R. in soiled diapers, informing the nurses that she did
not know how to change him.
Given Mother’s prior history with the Department, her consistent drug use, and the
injuries sustained by Z.K.R. as well as the reports from the forensic assessment and
Gambrel, the Department sought removal and temporary managing conservatorship of
Z.K.R. alleging “physical abuse and danger to the health and safety of the child,” which
was granted by the trial court. Temporary orders were put into place regarding Mother’s
visitation. Subsequently, a family plan of service was created for Mother and was adopted
by order of the court.
B. Trial Record
Cervera testified that she was sent to the hospital regarding a child, Z.K.R., as to
whom the Department had received allegations of physical abuse and neglectful
supervision. When she met with Mother at the hospital, Mother stated that Z.K.R. had
been in the care of D.L. from Thursday until Monday and had sustained the injuries when
he was with D.L. Mother did not have an address for D.L. nor did she know anything about
D.L.’s residence. Mother admitted to Cervera that she had used methamphetamine “at
least three days before the incident” and had been using methamphetamine for
approximately one year. Cervera further explained that Mother did not immediately bring
Z.K.R. to the hospital when D.L. returned him to Mother. Mother explained to Cervera that
4 she waited for transportation and “didn’t want to call 911.” Cervera stated that Mother
informed her that when Z.K.R. was returned to her care, she saw his burns on his feet,
but did not notice the additional burns and bruising. Cervera also met with Z.K.R. while
he was in the hospital. She took photographs of his injuries which were admitted into
evidence. The photographs depict the severe burns, bruises, and injuries on Z.K.R.’s
body.
Cervera explained that Mother was uncertain who Z.K.R.’s father was, stating that
there were two potential men who could have been his father—A.R., the father of her
other children, or another man who had died in prison. When she spoke to A.R., he told
Cervera that he had told Mother not to let D.L. take care of Z.K.R. because Z.K.R. was
not comfortable with D.L.
Hamilton testified that, as the Department investigator assigned to the case, she
received a report of the allegations involving Z.K.R.’s injuries. Hamilton explained that
Mother had four children prior to Z.K.R. who had all been removed from her care with her
rights terminated. She was able to speak with A.R. and D.L. during her investigation.
Through her investigation, Hamilton learned that D.L. had an “extensive criminal history”
which included assault and drug charges. D.L. also had history with the Department,
having had her own children removed. At the time of Hamilton’s investigation, D.L. had
been arrested for manufacture and delivery of drugs. When Hamilton met with D.L. in the
county jail, D.L. explained that Z.K.R. “caused [the injuries] to himself when he had turned
the hot water on in the bathtub.” As to the mark on his head, D.L. explained that “when
she picked him up out of the bathtub and was carrying him,” she “accidentally struck his
5 head on the door frame.” She did not seek medical attention for Z.K.R.; instead, she
attempted to treat the injuries herself by popping the blisters and using peroxide to clean
the wounds and burn spray. D.L. also informed Hamilton that she would provide drugs to
Mother, Mother would use drugs when Z.K.R. was home and she had seen drugs in
Mother’s home.
Mother was drug tested during the course of Hamilton’s investigation and was
positive for methamphetamine and amphetamines. Hamilton observed that Mother was
inattentive to Z.K.R. at the hospital, not feeding him when he was hungry and stating she
did not know how to change his diaper when it was dirty. Hamilton attempted to place
Z.K.R. with family, but neither A.R., A.R.’s mother, nor Mother’s uncle could care for him.
No additional family members were offered as options. At the conclusion of her
investigation, D.L. was “validated for medical neglect and physical abuse” and Mother
was “validated for neglectful supervision.”
Jennifer Garcia, the permanency specialist assigned to the case, testified that DNA
testing ruled out A.R. as the father of Z.K.R. B.M. was the other potential father, but he
was deceased when the investigation was ongoing. At the time of trial, Garcia testified
that paternity was unknown. When Garcia was assigned to the case, there was a family
plan of service put in place for Mother, which was adopted by order of the trial court. As
part of her service plan, Mother was required to: complete parenting classes, complete a
drug and alcohol assessment and follow all recommendations thereafter, undergo a
psychological evaluation and follow all recommendations thereafter, and attend
counseling. Garcia explained that the barriers to reunification at the time included
6 Mother’s minimal participation in her service plan at the outset of the case and Mother’s
subsequent incarceration. Mother entered a Substance Abuse Felony Offender Program
(SAFP), as ordered by the court after violation of her probation. Prior to going into the
SAFP, Mother “completed a psychological evaluation” and “completed a drug and alcohol
assessment.” As a result of her psychological evaluation, it was recommended that
Mother attend counseling, substance abuse treatment, and parenting classes. Mother did
not follow those recommendations. While several drug tests were requested, Mother only
completed three drug tests, two of which were hair follicle tests which returned positive
for methamphetamine. When asked about what efforts were made to get Mother to
comply with her service plan, Garcia stated:
There [were] several referrals sent for a drug and alcohol assessment, which she did complete in February of 2023. There was multiple drug tests requested. She was told that parenting was held every Thursday at Mid- Coast. She agreed several times to go in for that parenting class and she never did so. There [were] also referrals sent in to counseling at Jill O’Neill’s office here in Victoria. She was supposed to call them for scheduling, which she never did. She was also offered transportation to visitation[,] and she did not show up to many of those visits either.
Garcia stated that Mother would have benefitted from the parenting classes
because Mother had a history of neglectful supervision with her older children, and she
admitted she did not know how to fully care for her own children. Garcia opined that
Mother would have also benefitted from the recommended individual counseling as
Mother reported a history of depression and bipolar disorder, as well as an admitted issue
with substance abuse. Garcia testified that after Z.K.R. was removed from Mother’s care,
Mother was still using drugs, even while pregnant with her sixth child. She did not follow
through with her service plan, nor did she make any efforts to change her behaviors, until
7 she was incarcerated. Mother had another child after Z.K.R.’s removal who is also the
subject of a separate Department case. That child is currently placed alongside Z.K.R.
Garcia explained that there were “no appropriate family members given by [Mother].” She
also confirmed that Mother mentioned two potential relatives, S.M. and M.M., the mother
and sister of the deceased potential father, B.M. Garcia stated that she was not given
contact information for those individuals, but that Mother stated she would have them
contact her. She did not hear from them until long after Z.K.R. was placed in his current
foster home. While S.M. and M.M. were informed that they could do an at-home DNA
test, Garcia stated they did not follow through with that. Garcia did not believe placing
Z.K.R. with S.M. and M.M. was in his best interest.
Garcia testified that Z.K.R. suffered a lot of trauma and has had night terrors
following visitation with Mother. Z.K.R. told his foster parents that his Mother hurt him and
was “very mean to him.” According to Garcia, Z.K.R. is fearful of Mother. Garcia did not
believe that Z.K.R. could be safely reunified with Mother, in part because Mother allowed
Z.K.R. to be babysat by someone “with extensive criminal history” and a history of neglect
for her own children. As to Z.K.R.’s current placement, Garcia testified that all of his needs
are being met. Z.K.R. is bonded to his foster family, he is in therapy and counseling, and
is recovering well from his injuries. Garcia believed that Mother’s rights should be
terminated.
On cross-examination, Garcia confirmed that Mother had been participating in
services since she entered the SAFP facility three months prior to trial. Garcia agreed the
steps Mother is taking are good steps, but also noted that they are required by the facility.
8 Bria Hill, the mobile case aid who supervised visitation between Mother and Z.K.R.,
testified that Mother’s visitation schedule was twice a month with Z.K.R., once face-to-
face and once virtually. Hill stated that Mother “missed 80 percent of her visits” and did
not attempt to reschedule them. Hill said that Mother attempted to make excuses for
missing, such as being unaware that a visit was scheduled or that she did not “know what
virtual meant.” Hill transported Mother to one of her visits and stated that she was
available to assist in transportation if Mother needed it.
Hill described one of the virtual visits between Mother and Z.K.R. as “concerning.”
She explained that Z.K.R. did not want to participate, that he was covering his ears with
his hands and hiding under his blankets. Mother asked Z.K.R. what was wrong, but he
did not respond to her. Z.K.R. generally did not want to participate in the visits and after
visits, he would “rush to the vehicle to his foster dad.” The visits never lasted the full hour,
and Mother was often late. Based on her supervision of the interactions, Hill did not
believe that Mother and Z.K.R. were bonded. Of the “maybe four” visits that occurred,
only the one she described “caused her concern.” During the visit that caused her
concern, Z.K.R. seemed to be fearful and his fear was visible in the other visits as well.
Susan White, the court-appointed special advocate (CASA) for Z.K.R., testified
that Z.K.R. is doing very well in his placement. He attends play therapy and counseling.
White explained that Z.K.R. has voiced his desire to stay with his foster parents. His
youngest sibling is placed with him in the same home. Z.K.R. has an established, “safe,
stable[,] and appropriate” routine in his current home. White stated that she believes that
the current placement can meet Z.K.R.’s needs now and in the future. As the CASA
9 advocate, she stated she believed it would be best to terminate Mother’s rights because
Z.K.R. is “scared to death” to be with Mother and she believes that it would be detrimental
to Z.K.R. to return to Mother’s care.
White did not see any changes in Mother’s behavior prior to going to the SAFP
facility. Mother had not “acknowledged her role in this case” as it related to Z.K.R.’s
injuries. White was concerned for Z.K.R.’s mental and physical health and safety in
Mother’s care. White also observed the virtual visits with Mother and stated that there
was no engagement and that Z.K.R. would “holler [‘]no, no, no, no, no.[’]”
Mother testified that D.L. had been babysitting Z.K.R. over the long weekend. She
said D.L. had previously watched Z.K.R. and returned him with no injuries. Mother
testified that, when Z.K.R. came home with the burns and bruises, “my mom and them
rushed to the house and we immediately took him to the hospital.” Mother admitted that
the weekend Z.K.R. was injured, she was “using at the time and [she] didn’t want to use
around [Z.K.R.].” At the time of trial, she had been in the SAFP facility for three months,
with six more months to complete. While in SAFP, she began participating in several
groups. Mother testified:
I’m participating in Good Intentions, Bad Choices, which is good ways of thinking and no bad choices in life. I’m also participating in Living in Balance. It’s about living in, it’s about living and doing the right thing in the right way. I’m also participating in Alcohol and Drug and the Brain. It’s, alcohol messes up the brain. I’m also participating in Orientation, which is slips and how to do things around in the dorm and how to become a big sister and a good peer at work.
I’m also participating in Cognitive Intervention. Also anger management, taking an action for the things I’m doing wrong and, Counter Group, we pull each other up on our negative behaviors. Process Group, open up and let it all out instead of holding it all in.
10 She also attended narcotics and alcoholics anonymous meetings. She was required to
participate in four groups a day. She was also on the list to attend parenting classes in
the month following trial. Mother stated that she intended to continue the classes even
after her release from the facility. Once released from the facility, Mother will reside in a
halfway house for two months. She explained that, after that, she “want[s her] kids back”
and to “be the best mother [she] can for [her] boys.” She stated that she is aware of the
bad choices she has made that led to this case, and that she is trying not to make bad
choices anymore.
Mother explained that D.L. is no longer part of her life and that she intends to
surround herself with better people when she is released. She intends to find a job and a
“good day care for the kids.” She explained that her plan was for Z.K.R. to reside with
B.M.’s mother and sister until she was released. Mother testified that she gave the
information for these individuals to the Department, but that the Department did not
contact them. She also stated that Z.K.R. knows them and is comfortable with them, and
that they were not strangers.
Mother testified that she has six children, including Z.K.R., and that her rights were
terminated as to her four older children because of her drug use. Her brother adopted
three of her older children, but her oldest was removed from her brother’s care because
the child was “acting out.” She explained that the oldest child “[i]s in Houston somewhere.”
Mother explained that D.L. had previously babysat Z.K.R. without incident and that she
was unaware of D.L.’s own history with the Department. She did admit that she was aware
that D.L. had been accused of beating her own children.
11 Mother disagreed with the characterization of how she behaved in the hospital,
explaining that she fed her son when he was hungry, but that he had trouble eating
because of his injuries. She stated she kept him safe in the bed and stayed by his side
the whole time. She agreed that if he had not been left with D.L., Z.K.R. would not have
suffered the injuries he sustained. She also stated that she knew her drug use caused
her to leave him with D.L. and she “never knew [D.L.] was going to do something like that
to [Z.K.R.].”
Mother admitted that D.L. had provided drugs to her in the past, specifically Xanax.
She also admitted that she was ordered to participate in SAFP because she violated her
probation. She explained that she did not work on her service plan prior to being ordered
into the SAFP because she “was going through some things” and she felt “shocked.” She
admitted to having used drugs while pregnant with Z.K.R.’s younger sibling, but she could
not state whether the baby tested positive for drugs at birth. She stated that she did not
want her rights terminated because she “deserve[s] another chance.” She admitted that
her drug use was wrong, but she did not believe she endangered Z.K.R.
At the conclusion of the evidence, the trial court granted the Department’s petition
and signed an order terminating Mother’s rights. See TEX. FAM. CODE ANN.
§ 161.001(b)(D), (E), (O), & (P). This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
In Mother’s sole issue she contends that the evidence failed to support each
termination ground and that the evidence was insufficient to support the trial court’s best-
interest finding.
12 A. Standard of Review & Applicable Law
“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). 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 at 112. 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). 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. TEX. FAM. CODE ANN. § 161.001(b)(1), (2).
In our legal sufficiency analysis, we must view the evidence in the light most
favorable to the finding, we “must assume that the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so,” and we “should disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible.” In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re
J.F.C., 96 S.W.3d at 266). However, this does not mean that we must disregard all
evidence that does not support the finding. In re J.F.C., 96 S.W.3d at 266. Because of the
heightened standard, we must also be mindful of any undisputed evidence contrary to the
finding and consider that evidence in our analysis. Id. If we determine that no reasonable
trier of fact could form a firm belief or conviction that the matter that must be proven is
13 true, we must hold the evidence to be legally insufficient and render judgment in favor of
the parent. Id.
In a factual sufficiency review, “[w]e must determine whether, on the entire record,
a fact-finder could reasonably form a firm conviction or belief that the parent violated a
provision of [§] 161.001[(b)](1) and that the termination of the parent’s parental rights
would be in the best interest of the child.” In re M.C.T., 250 S.W.3d 161, 168 (Tex. App.—
Fort Worth 2008, no pet.) (citing In re C.H., 89 S.W.3d 17, 28 (Tex. 2002)). Under this
standard, we consider whether the “disputed evidence is such that a reasonable factfinder
could not have resolved that disputed evidence in favor of its finding.” In re J.F.C., 96
S.W.3d at 266. If we conclude that “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.” Id.
B. Statutory Grounds
“To affirm a termination judgment on appeal, a court need uphold only one
termination ground—in addition to upholding a challenged best interest finding—even if
the trial court based the termination on more than one ground.” In re N.G., 577 S.W.3d
230, 232–33 (Tex. 2019) (per curiam). The Texas Supreme Court has held that,
regardless of whether other grounds for termination are unchallenged on appeal, an
appellate court must always review issues alleging the evidence was insufficient to
support findings of endangerment under parts (D) or (E) of family code § 161.001(b)(1).
In re N.G., 577 S.W.3d at 234, 237 (holding that “due process and due course of law
14 requirements mandate that an appellate court detail its analysis for an appeal of
termination of parental rights” on endangerment grounds because an endangerment
finding “becomes a basis to terminate that parent’s rights to other children” under
§ 161.001(b)(1)(M)). Therefore, we will first address the sufficiency of the evidence
supporting the trial court’s (D) & (E) findings.
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 physical or emotional
well-being of the child,” and subsection 161.001(b)(1)(E) allows termination if the parent
has “engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child.” 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
15 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,
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)).
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). Continued
illegal drug use after a child’s removal is conduct that jeopardizes parental rights and may
be considered as establishing an endangering course of conduct. In re S.R., 452 S.W.3d
351, 361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing Cervantes-Peterson
v. Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 244, 253–54 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (en banc)). “Because the inquiry under both subsections
D and E includes the conduct of the parent, evidence of criminal conduct, convictions, or
imprisonment is relevant to a review of whether a parent engaged in a course of conduct
that endangered the well-being of the child.” Id. at 360–61 (citing A.S. v. Tex. Dep’t of
Family & Protective Servs., 394 S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.)).
16 The trial court’s subsection (D) and (E) findings are adequately supported by the
evidence in the record. The record shows that Mother has been struggling with drug
addiction for years. Mother was in a court-ordered treatment facility at the time of trial and
she had previously had her rights terminated to her four older children because of her
drug abuse. See In re J.O.A., 283 S.W.3d at 345. There was also evidence that Mother
continued her drug use after Z.K.R.’s removal, having had positive drug tests and by her
own admission. See In re S.R., 452 S.W.3d at 361.
The Department’s caseworkers also testified about their concerns that Mother was
not participating in her court-ordered services until her placement in the SAFP. A parent’s
efforts to improve or enhance parenting skills are relevant in determining whether a
parent’s conduct results in endangerment under subsection (E). See In re D.T., 34 S.W.3d
625, 640 (Tex. App.—Fort Worth 2000, pet. denied). Further, the evidence before the trial
court showed that Mother made the decision to spend a long weekend using
methamphetamines instead of caring for her child. Mother chose to allow D.L. to babysit
Z.K.R. while Mother was using drugs. By Mother’s own admission, she was aware that
D.L. had a history of abusing her own children, yet Mother allowed Z.K.R. to remain in
D.L.’s care for a period of several days, without checking on his well-being. See In re
J.O.A., 283 S.W.3d at 345.
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 finding that Mother both engaged in conduct
that endangered her children’s physical or emotional well-being and knowingly placed or
17 knowingly allowed her children to remain in conditions or surroundings which endangered
their physical or emotional well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E);
In re J.F.C., 96 S.W.3d at 261, 266. Because the evidence is legally and factually
sufficient to support both grounds, we need not address the sufficiency of the evidence
supporting the remaining grounds. See In re N.G., 577 S.W.3d at 232–33; TEX. R. APP.
P. 47.1. We overrule Mother’s issue as it relates to the statutory grounds for termination.
C. Best Interest
Mother also argues that the evidence was insufficient to support the trial court’s
finding that termination was in Z.K.R.’s best interest. In reviewing a best interest finding,
we consider, among other evidence, the non-exclusive Holley factors. See In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976)). These factors include: (1) the child’s desires; (2) the child’s emotional and
physical needs now and in the future; (3) any 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 the individuals seeking custody to promote the best interest
of the child; (6) the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) the parent’s acts or omissions which may
indicate that the existing parent-child relationship is improper; and (9) any excuse for the
parent’s acts or omissions. Id.
As to the first Holley factor, the Department’s caseworkers and the CASA advocate
testified that Z.K.R. was fearful of Mother during their visitations, refusing to participate
and often hiding from her on virtual visits. Z.K.R. would say “no, no, no” when he saw
18 Mother and it was expressed that he was afraid to be returned to Mother. There was also
evidence that Z.K.R. was bonded to his foster family, often rushing to the foster family
after visits. In light of this testimony, this factor weighed in favor of the trial court’s best
As to the second Holley factor, there was some testimony that Z.K.R. attended
play therapy and counseling and that his current placement met the needs of Z.K.R.’s
routine and schedule. There was no testimony regarding Mother’s ability to address
Z.K.R.’s needs in the future, however, at the time of trial, Mother still had several months
before she would be released from the SAFP and testified that she would then have to
reside in a halfway home for a period of time before being able to meet the needs of
Z.K.R. The trial court could have also considered the undisputed evidence regarding
Mother’s failure to maintain significant contact with Z.K.R. as well as her failure to
participate in the court-ordered services required to secure reunification with him. See In
re J.J.O., 131 S.W.3d 618, 630 (Tex. App.—Fort Worth 2004, no pet.) (finding that mother
failed to regularly visit or maintain significant contact with child supported by legally and
factually sufficient evidence when mother made only twelve visits during nine-month
period); M.C. v. Tex. Dep’t of Fam. & Protective Servs., 300 S.W.3d 305, 310 (Tex. App.—
El Paso 2009, pet. denied) (finding that mother failed to regularly visit or maintain
significant contact with the child when she visited only six to eight times in one year); see
also In re J.T.G., No. 14-10-00972-CV, 2012 WL 171012, at *17 (Tex. App.—Houston
[14th Dist.] Jan. 19, 2012, pet. denied). The trial court could find from the evidence that
this factor supports a best interest finding.
19 Regarding emotional and physical danger, the third Holley factor, Mother admitted
to drug use including methamphetamines. 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). While Mother tried to mitigate her drug
abuse by trying to avoid using in front of Z.K.R., her drug use was persistent before and
after removal until her court-ordered admission into SAFP, and it led to her placing the
child with an unfit caregiver, which in turn led to the child’s injuries. This factor also weighs
in favor of the trial court’s best interest finding.
As to Mother’s parental abilities, her plans for Z.K.R., and the stability of a future
home, Mother stated she would be enrolling in a parenting course while in the SAFP.
However, Mother had not completed any services as of the time of trial relating to
parenting courses. There was also testimony that Mother neglected Z.K.R.’s needs while
he was in the hospital, including feeding him when he was hungry or changing his soiled
diapers. Mother testified that she hoped to obtain employment, find a stable home, and
enroll her son into a reputable daycare, but aside from these blanket assertions, there
was no explanation of how she would manage to accomplish these tasks. In contrast, the
Department presented ample evidence that Z.K.R. was thriving, happy, and well cared
for in a foster home with his younger sibling. While the Department did not put on evidence
regarding the adoption of Z.K.R. by the foster family, the Department established that he
is in a positive home environment. These factors weigh in favor of the best interest finding.
Regarding the final two Holley factors, Mother did not offer a credible excuse for
her behavior in caring for Z.K.R. While Mother attempted to place the blame for the
20 injuries solely on D.L., she acknowledged that she was aware, to some extent, of D.L.’s
abusive nature and Mother chose to place her child in D.L.’s care so that she could spend
a long weekend using methamphetamines. Mother had a history of drug abuse, leading
to the removal and termination of her rights to her four older children, yet she continued
to abuse methamphetamines even after the removal of Z.K.R. While it is undisputed that
Mother did not directly cause the burn injuries to Z.K.R., Mother’s history of drug use and
carelessness for her child’s well-being was affirmatively demonstrated in the record. The
final two factors weigh in favor of the best interest finding.
Because the Holley factors in this case weigh in favor of termination, we conclude
the evidence was legally and factually sufficient to support the trial court’s finding, and we
overrule Mother’s issue as it relates to the best interest finding.
III. CONCLUSION
The judgment of the trial court is affirmed.
NORA L. LONGORIA Justice
Delivered and filed on the 28th day of March, 2024.