TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00342-CV
R. M., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY NO. 316,896-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
MEMORANDUM OPINION
R.M. (Mother) appeals from the trial court’s final order terminating her parental
rights to her daughter A.H., who was removed from her parents’ care in March 2020 after the
Texas Department of Family and Protective Services (Department) received a report alleging
physical neglect and neglectful supervision related to incidents of domestic abuse and illegal
drug use.1 After a hearing, an associate judge determined that termination of Mother’s parental
rights was in A.H.’s best interest and that Mother knowingly placed and allowed A.H. to remain
in conditions and surroundings that endangered her physical and emotional well-being,
knowingly placed A.H. with individuals who engaged in conduct that endangered her physical
and emotional well-being, and failed to comply with the provisions of a court order establishing
the actions necessary for Mother to regain custody. See Tex. Fam. Code § 161.001(b)(1)(D),
1 To protect the child’s privacy, we will use the child’s initials when referring to her and will refer to her family members by their relationships to her. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. Although Father’s rights were also terminated, he is not a party to this appeal. (E), (O), (b)(2). Following this ruling, Mother sought a de novo hearing regarding the best-
interest determination. See id. §§ 201.015, .2042. At the time of the de novo hearing, A.H. was
seven years old. After the de novo hearing, the trial court issued a decree terminating Mother’s
parental rights and finding that termination is in A.H.’s best interest. On appeal, Mother
contends that the trial court’s best-interest determination is not supported by legally or factually
sufficient evidence. We will affirm the trial court’s order.
BACKGROUND
During the de novo hearing concerning Mother’s parental rights to A.H., Mother
and an employee for the Department, Sherri Duirden-Jones, both testified, and the trial court
admitted into evidence the removal affidavit prepared by a Department employee, the family
service plan, and the Department’s final report regarding the status of the case.
In the removal affidavit, a Department investigator averred that on March 25,
2020, the Department received a report alleging physical neglect and neglectful supervision of
A.H., that there were methamphetamine “baggies” and multiple drug pipes in the home, and that
Mother was using methamphetamine and appeared hostile to A.H. In addition, the investigator
explained that she went to Mother’s house the following day and observed bruises on Mother’s
face and arms, which Mother explained were caused by Father punching her during an argument.
Further, the investigator related that Mother admitted that “the violence between her and [Father]
started a few months ago” and that the police had already obtained a protective order after she
called 911 to report the abuse. The investigator also stated that the protective order went into
effect March 10, 2020, and would expire on May 10, 2020, and that a police report for a prior
incident stated that Father punched Mother in the face and pushed her into a bathroom door, that
2 Mother had a bloody and bruised face, and that Mother had older injuries that she admitted were
from an earlier assault by Father.
The removal affidavit also documented a subsequent visit by another investigator.
In particular, the affidavit stated that the investigator went to the home because Mother’s
landlord called in early April 2020 to report that Father had been living in the home for a
week even though there was a protective order in place and that there was “yelling coming from
inside the home.” When the investigator talked with Mother, she denied seeing Father, but the
investigator later found Father in the bedroom and confirmed his identity. When the investigator
asked Mother why Father had been living at the home, Mother explained that she had been
with Father since middle school and inquired what was she “supposed to do?” Further, the
investigator talked with A.H., who stated that her parents fight “with their hands a lot,” that
Father hits Mother, and that she has seen Mother with blood on her face. Additionally, the
affidavit stated that Mother admitted that she was “doing Methamphetamines with [Father] in
their home where [A.H.] lives” and that Mother tested positive for methamphetamine and
amphetamines in April 2020.
The service plan for Mother from May 2020 required her to have supervised visits
with A.H., submit to weekly drug testing, submit to a substance-abuse assessment, have a
psychological evaluation, and participate in counseling. The plan also listed the Department’s
concern that Mother will continue using illegal drugs and prohibited Mother from using illegal
drugs and from associating with individuals engaged in illegal activities. The plan detailed the
Department’s concerns that Mother will continue to be involved in an abusive relationship with
Father, which had resulted in “significant injuries” to Mother.
3 The final report from March 2021 detailed that Mother had participated in weekly
therapy sessions, had been discharged from therapy, and had submitted to weekly drug testing
but had not participated in a psychological evaluation. Further, the report documented that
Mother tested positive for cocaine in January 2021, admitted that she went to her brother’s house
and learned that his roommate uses cocaine, and stated that she had sex with someone who
she later learned was using cocaine. In addition, the report stated that Mother “rekindled her
relationship with” Father in June 2020; that Father subsequently assaulted Mother, which
resulted in her suffering a black eye and his being arrested; and that Mother requested that the
charges against Father be dropped. Further, the report chronicled that A.H. told the Department
that Father “taught her how to kill herself by cutting her wrists.” Moreover, the report
documented that Mother had moved into a new home, that the caseworker noticed some of
Father’s belongings in the new home in September 2020, and that the caseworker did not see
Father’s belongings in the home in November 2020.
Additionally, the report indicated that Mother is now employed with a senior
healthcare company, lives in a clean apartment that has a room for A.H., and has positive visits
with A.H. for which she “provides snacks, arts and crafts.” The report also stated that Mother’s
substance-abuse assessment from July 2020 indicated that substance-abuse treatment was not
needed. However, the report also documented the Department’s concerns that Mother continues
to associate with individuals who use illegal drugs and to be in a relationship with Father
even though it exposes her to violence and drug use in the home and even though A.H. was
“traumatized by the abuse that she witnessed while in the care of her parents.”
At the de novo hearing, Duirden-Jones testified that she works for the Department
and that the Department recommended that Mother’s parental rights be terminated. In her
4 testimony, Duirden-Jones explained that although Mother complied with the directive to submit
to drug testing, she tested positive for cocaine in January 2021, which was after A.H. had been
removed from her custody. Further, Duirden-Jones discussed how Mother had a problem with
drugs and tested positive for methamphetamine and amphetamines early in the case. In addition,
Duirden-Jones testified that the Department had concerns that A.H. would continue to be
exposed to domestic abuse because Mother got back together with Father after A.H. had been
removed, leading to an incident of domestic abuse within a week and resulting in injuries to
Mother’s face, and because Mother was trying to get the charges against Father stemming
from that incident dropped. Duirden-Jones described the domestic abuse as “very significant
and very severe.”
In addition, Duirden-Jones discussed how when she went to Mother’s new home
in September 2020, she saw Father’s clothes hanging in the closet, which she thought was
unusual because Mother had recently moved in and had not unpacked all of her own belongings;
however, Duirden-Jones also testified that Mother stated Father’s relative was going to pick up
the clothes from the home. Duirden-Jones related that although Mother denied still being involved
with Father during the visit, Mother received a phone call from someone nicknamed “My
Hubby” in the contacts on her phone and later admitted that the caller was Father. Further,
Duirden-Jones explained that Mother was not honest about her involvement with Father, that
Father called and texted during other visits, and that one text from Father stated that he was
waiting for Mother in the parking lot next to the Department. Moreover, Duirden-Jones testified
that Father is currently in jail and that Mother would likely be with Father if he were not in jail.
Additionally, Duirden-Jones stated that Mother had partially complied with the
family plan by having visits with A.H. and by participating in drug testing, counseling, and a
5 substance-abuse assessment. Duirden-Jones also noted that Mother had been discharged from
individual counseling and that the substance-abuse assessment indicated that no additional
services were needed at the time of the assessment. Further, Duirden-Jones testified that
Mother’s home was clean and had a room for A.H. and that Mother maintained employment
during the case.
Regarding A.H., Duirden-Jones testified that she is currently in a foster home
with parents who are planning to adopt her. Although Duirden-Jones explained that A.H. had
only been in the home for a few weeks and had been transferred to this new foster home because
she started acting out by lying and stealing, Duirden-Jones also related that A.H. is currently
in therapy for those issues, that the issues can be successfully treated in therapy, and that the
Department will be able to transition A.H. to a forever home. Regarding Mother’s visits with
A.H., Duirden-Jones explained that Mother would bring activities for them but allowed A.H. to
do whatever she wanted and acted more like a friend than a parent.
After Duirden-Jones finished testifying, Mother was called to the stand. In her
testimony, Mother admitted that she called the police about an act of abuse in March 2020 in
which Father slammed her into a wall and punched her eye and that A.H. was in the home at the
time. Similarly, Mother testified about two incidents later the same month. In the first, Father
punched her and threw her to the ground, causing her to sustain injuries from that assault. In the
second, Mother called the police after Father punched her in the face again. Mother admitted
that A.H. was in the home during the second incident, clarified that she “never said [A.H.]
was safe” from the abuse, and acknowledged that witnessing the violence hurt A.H. Mother
described another incident of abuse in June 2020 after A.H. had been removed from the home in
which she stated that one week after she got back together with Father, he punched her and “gave
6 [her] a black eye.” Mother testified that she subsequently moved into her own place, changed
her phone number, and did not tell Father where she moved. When discussing her drug-test
results from January 2021, Mother stated that she believes she tested positive because she had
sex with someone who used cocaine.
Additionally, Mother testified that she is currently employed with two senior
healthcare companies while she attempts to get a nursing assistant’s license, makes enough
money to support A.H. and herself, owns her own car, completed most of the requirements of the
service plan, never missed a visit with A.H., and will never again risk a positive drug result by
interacting with people who use drugs. When describing her visits with A.H., Mother related
that the visits went well. Additionally, Mother testified that termination of her parental rights
was not in A.H.’s best interest, that A.H. wanted to come home, and that A.H. started
misbehaving while in foster care.
Regarding her relationship with Father, Mother related that she is no longer
involved with him, does not want to be involved with him again, and had no further contact with
him after the time that he called her on the phone while Duirden-Jones was at her home for a
visit. Further, Mother admitted that she had hung a few of Father’s shirts in a closet in her new
home but explained that she had packed them from her prior home and that the clothes were
gone by the next time that someone from the Department visited. Moreover, Mother admitted
that Father did text her to say that he was waiting for her in the parking lot next to the
Department but explained that she did not have a car at the time and that Father’s mother was
picking her up. Mother also admitted that she had visited Father while he was in jail on at least
three occasions to tell him when the trial date was, to tell him about her decision to request a
de novo hearing, and to tell him when the de novo hearing was scheduled.
7 After considering the evidence presented at the hearing, the trial court determined
that termination of Mother’s parental rights was in A.H.’s best interest and rendered a de novo
decree terminating her parental rights. Mother appeals the trial court’s order.
STANDARD OF REVIEW AND GOVERNING LAW
The Family Code allows a trial court to refer to an associate judge “any aspect of
a suit over which the court has jurisdiction.” Tex. Fam. Code § 201.005. An associate judge
may conduct a hearing, hear evidence, make findings of fact, formulate conclusions of law, and
recommend that an order be rendered. Id. § 201.007; see also id. § 201.204 (setting out powers
of associate judge). After an associate judge makes a recommendation, any party may request a
“de novo hearing before the referring court” but must specify the issues that will be presented
to the referring court. Id. § 201.015(a)-(b). Accordingly, de novo hearings are limited to the
specific issues stated in the hearing request. In re A.L.M.-F., 593 S.W.3d 271, 276 (Tex. 2019).
To terminate an individual’s parental rights, the Department must prove by clear
and convincing evidence that the parent engaged in conduct listed as a statutory ground for
termination in the Family Code and that termination is in the child’s best interest. Tex. Fam.
Code § 161.001(b); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). “‘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. When reviewing a termination order, appellate courts defer to the factfinder,
who, “having full opportunity to observe witness testimony first-hand, is the sole arbiter
when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498, 503
(Tex. 2014).
8 In legal-sufficiency reviews, appellate courts consider undisputed evidence
contrary to the finding at issue but assume that the factfinder resolved disputed facts in favor of
the finding. In re A.C., 560 S.W.3d 624, 630-31 (Tex. 2018). The evidence is legally sufficient
“if, viewing the evidence in the light most favorable to the fact-finding and considering
undisputed contrary evidence, a reasonable factfinder could form a firm belief or conviction that
the finding was true.” Id. at 631. In contrast, for factual-sufficiency reviews, appellate courts
weigh the disputed evidence contrary to the finding against the evidence supporting the finding
and ascertain whether a reasonable factfinder could have weighed the conflicting evidence in
favor of the finding. Id. “Evidence is factually insufficient if, in light of the entire record, the
disputed evidence a reasonable factfinder could not have credited in favor of a finding is so
significant that the factfinder could not have formed a firm belief or conviction that the finding
was true.” Id.
The best-interest prong “is child centered and focuses on the child’s well-being,
safety, and development.” Id. This determination is guided by multiple non-exclusive factors,
including the following: (1) the child’s wishes; (2) the child’s physical and emotional needs;
(3) the physical and emotional danger to the child now and in the future; (4) the parental ability
of the person seeking custody; (5) programs available to help that person; (6) the plans for the
child by that person or the agency seeking custody; (7) the stability of the home; (8) the parent’s
acts or omissions indicating that the parent-child relationship is improper; and (9) any excuse for
the parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Evidence
pertaining to a statutory ground for termination may also be probative of the best-interest prong.
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). The Department need not prove all the factors, and
the absence of evidence for some of the factors does not preclude a finding that termination is in
9 the child’s best interest. Spurck v. Texas Dep’t of Fam. & Protective Servs., 396 S.W.3d 205,
222 (Tex. App.—Austin 2013, no pet.).
DISCUSSION
In her sole issue on appeal, Mother contends that the evidence is legally and
factually insufficient to support the trial court’s best-interest determination. As support for that
argument, Mother asserts that only limited evidence was presented regarding A.H.’s desires
and present and future needs, highlights testimony from Duirden-Jones indicating that Mother
brought toys and activities during her visits, and references the portion of the final report stating
that the visits went well. Moreover, Mother argues that she presented no signs of a present or
potential future drug problem because most of her drug tests were negative, indicating that she
was sober for months during the pendency of this case, and because the substance-abuse
assessment showed no need for substance-abuse treatment. Relatedly, Mother emphasizes her
testimony in which she denied using cocaine and reasoned that she must have tested positive
because she was in close contact with an individual who used cocaine and notes that the
Department never referred her to additional services after the positive result. Further, Mother
points to her testimony describing her efforts to stay away from Father, including moving into
her own place and changing her phone number after he abused her in June 2020, and stating that
she has no intention of being involved with Father ever again or subjecting herself to his abuse.
When discussing her interactions with Father, Mother also refers to her testimony in which she
explained that her therapist recommended communicating with Father to establish a co-parenting
relationship. Additionally, Mother notes that her new apartment is clean and has a room for
A.H., that she has been consistently employed, that she makes enough money to support A.H.
10 and herself, and that she completed most of the service-plan requirements. Mother also argues
that Duirden-Jones’s assessment of the stability of her home was based on visits that occurred
months before the termination and emphasizes that there was no evidence of any of Father’s
belongings being in her new home after the September 2020 visit. Furthermore, Mother highlights
that no physician, therapist, guardian, or attorney ad litem testified at the hearing and that
Duirden-Jones did not specifically testify about A.H.’s best interest. In light of the preceding,
Mother contends that the evidence was legally and factually insufficient to support the trial
court’s best-interest determination.
In this case, although Mother testified that A.H.’s misconduct resulted from their
separation and that A.H. wanted to return home and although evidence was presented showing
that the visits between them went well, there is no direct evidence of A.H.’s desires regarding her
future placement. The trial court may have considered the child’s young age at the time of the
de novo hearing as it pertained to the child’s ability to express any placement desires. However,
when deciding that termination is in a child’s best interest, the trial court need not have evidence
of all the Holley factors. See id.; see also In re W.S.M., 107 S.W.3d 772, 773 (Tex. App.—
Texarkana 2003, no pet.) (explaining that child’s love of his parent is important consideration but
cannot override overwhelming evidence showing parent engaged in conduct and placed child in
conditions endangering his physical and emotional well-being).
Moreover, Mother did not challenge the findings that she knowingly placed A.H.
in conditions and engaged in conduct that endangered A.H.’s well-being. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E); see also In re G.S., No. 14-14-00477-CV, 2014 WL 4699480, at *12
(Tex. App.—Houston [14th Dist.] Sept. 23, 2014, no pet.) (mem. op.) (“The unchallenged
predicate findings under section 161.001(1)(E), endangering conduct, are binding and may be
11 considered as evidence related to the court’s best interest finding”). Further, evidence was
presented during the hearing demonstrating that Mother had been in a long-term abusive
relationship, that the abuse was “very severe,” that A.H. was present when the abuse occurred
and witnessed “a lot of” abuse between her parents, and that the abuse continued during the
pendency of this case. Mother also testified that A.H.’s witnessing the abuse hurt her, and
the Department’s final report documented that Father taught A.H. how to engage in acts of
self-harm. See In re S.K.A., 236 S.W.3d 875, 903 (Tex. App.—Texarkana 2007, pet. denied)
(explaining that history of abuse in child’s family is relevant to best-interest determination).
Additionally, evidence was presented establishing that Mother used multiple
drugs near the time of removal, told a Department employee that she had used methamphetamine
with Father in the home while A.H. lived there, associated with individuals who use illegal
drugs after A.H. was removed, and tested positive for cocaine in January 2021, which was after
A.H. had been removed from her custody and just a few months before Mother’s rights were
terminated. See In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.)
(noting that parental drug use is relevant to best-interest determination); see also In re M.A.J.,
612 S.W.3d 398, 407-08 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (determining that
evidence of positive drug tests after receiving referral that parent used narcotics was sufficient
to support finding of endangerment); In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas
2019, pet. denied) (explaining that evidence that parent engaged in drug use during pendency
of termination suit when parent is at risk of losing child is sufficient evidence to support
endangerment finding); In re F.A.R., No. 11-04-00014-CV, 2005 WL 181719, at *4 (Tex.
App.—Eastland Jan. 13, 2005, no pet.) (mem. op.) (noting that evidence of “continued drug use
12 . . . demonstrates an inability to provide a stable environment for [child] and an inability to
provide for his emotional and physical needs”).
In her testimony, Mother did deny that termination of her parental rights was in
A.H.’s best interest, but she did not provide additional support for that assertion. Although
Mother testified that she tested positive for cocaine because she was in close contact with
someone who used cocaine, the trial court was charged with making credibility determinations
and with resolving conflicts in the evidence. See In re A.B., 437 S.W.3d at 503; see also
In re K.M.R., No. 14-17-00651-CV, 2018 WL 614762, at *12 (Tex. App.—Houston [14th Dist.]
Jan. 30, 2018, pet. denied) (mem. op.) (“As sole arbiter of credibility and demeanor, the trial court
was free to credit positive test results over Father’s denial of cocaine use”). Similarly, although
Mother testified that she did not plan to become romantically involved again with Father, that
she continued communicating with Father only to establish a co-parenting relationship, and that
she had no more involvement with Father after September 2020, the trial court had to weigh the
credibility of that testimony. Cf. In re D.M.M., No. 14-16-00664-CV, 2017 WL 61847, at *6
(Tex. App.—Houston [14th Dist.] Jan. 5, 2017, pet. denied) (mem. op.) (noting that factfinder is
in best position to assess credibility of parent’s excuses).
When assessing Mother’s credibility, the trial court could have considered
evidence that Mother attempted to conceal her ongoing relationship with Father after a protective
order had been issued and indicated that she believed she did not have a choice but to continue
the relationship; attempted to rekindle the relationship and live with Father in June 2020, which
resulted in her being injured and his being arrested for assaulting her; requested that the charges
against Father be dropped; continued to communicate with Father after A.H. was removed;
labeled Father as “My Hubby” in her phone; and had Father’s clothing hanging in a closet in her
13 new home even though she had not fully unpacked her own belongings. In addition, the trial
court was also presented with evidence showing that Father was in jail for much of the time in
which Mother claimed that they were no longer involved and admitted that she visited him in
jail at least three times around the time that the associate judge recommended terminating her
parental rights. Cf. In re J.A.M., No. 14-18-00528-CV, 2018 WL 6217376, at *9 (Tex. App.—
Houston [14th Dist.] Nov. 29, 2018, pet. denied) (mem. op.) (noting that there was conflicting
evidence regarding mother’s continued involvement with abusive partner and that “[a] fact finder
may infer from a parent’s past inability to meet the children’s physical and emotional needs an
inability or unwillingness to meet the children’s needs in the future”).
Moreover, although Mother correctly points out that she complied with many of
the terms of her service plan, was employed, testified that she earned enough money to provide
for A.H. and herself, and moved into a clean home with room for A.H., “evidence of improved
conduct . . . does not conclusively negate the probative value of a long history of . . . irresponsible
choices.” In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). Additionally, even though the
substance-abuse assessment initially indicated that no additional treatment was necessary,
Mother subsequently tested positive for cocaine use. Cf. In re M.G.D., 108 S.W.3d 508, 513,
514 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (explaining that “evidence of a recent
turnaround should be determinative only if it is reasonable to conclude that rehabilitation, once
begun, will surely continue” and noting that narcotics abuse issues “sometimes reappear”).
Further, even though the final report by the Department stated that the visits
between Mother and A.H. went well and that Mother provided snacks and activities, Duirden-
Jones testified that Mother treated A.H. like a friend and would allow her to do whatever she
wanted. Regarding the Department’s plans, Duirden-Jones testified that A.H. was recently
14 placed with a foster family who wants to adopt her. Cf. Hann v. Texas Dep’t of Protective &
Regul. Servs., 969 S.W.2d 77, 83 (Tex. App.—El Paso 1998, pet. denied) (observing that
“establishing a stable, permanent home for a child is a compelling interest for the government”),
disapproved on other grounds by In re J.F.C., 96 S.W.3d 256, 267 & n.39 (Tex. 2002). Although
Duirden-Jones stated that A.H. had begun exhibiting behavioral issues, she also explained that
A.H. is being treated for those issues and that the Department will be able to transition A.H. to a
forever home. Even though Duirden-Jones did not specifically state that termination was in
A.H.’s best interest, she testified regarding, among other things, Mother’s prior drug use and the
history of domestic abuse in the family, which was witnessed by A.H., and testified that the
Department recommended that Mother’s rights be terminated. See In re D.M., 452 S.W.3d 462,
471 (Tex. App.—San Antonio 2014, no pet.) (explaining that factfinder may make inferences
from past conduct endangering well-being of child when making best-interest determination).
Viewing all the evidence in the light most favorable to the judgment, we conclude
that a factfinder could have formed a firm belief or conviction that termination of Mother’s
parental rights is in A.H.’s best interest. In light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the best-interest finding is not so
significant that a factfinder could not reasonably have formed a firm belief or conviction that
termination of Mother’s parental rights is in A.H.’s best interest. Accordingly, after considering
the relevant factors under the appropriate standards of review, we conclude that the evidence is
legally and factually sufficient to support the trial court’s finding that termination of the parent-
child relationship is in A.H.’s best interest.
For these reasons, we overrule Mother’s issue on appeal.
15 CONCLUSION
Having overruled Mother’s sole issue on appeal, we affirm the trial court’s
de novo decree terminating Mother’s parental rights.
__________________________________________ Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Smith
Affirmed
Filed: November 18, 2021