T. D. v. Texas Department of Family and Protective Services
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Opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00387-CV
T. D., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-19-006187, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING
MEMORANDUM OPINION
T.D. (Mother) appeals from the trial court’s termination decree following a bench
trial.1 The trial court determined that Mother knowingly placed or allowed her children to
remain in conditions that endangered their well-being and determined that termination of
Mother’s parental rights was in the best interests of two of her children. On appeal, Mother
challenges the legal and factual sufficiency of the evidence supporting the trial court’s best-
interest and endangerment determinations regarding the two children for whom the parent-child
relationship was terminated. We will affirm the trial court’s termination decree.
1 To protect the children’s privacy, we will use pseudonyms when referring to them and will refer to family members by their relationships to the children. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. Although the parental rights of the fathers were also terminated, they are not parties to this appeal. BACKGROUND
After receiving complaints regarding Mother’s parenting, the Texas Department
of Family and Protective Services (Department) took custody of her five children: Lisa, John,
Leon, Lucy, and Sam. After investigating the case for months, the Department changed its
recommendation from reunification to termination. The case involving Lisa, who was fourteen
years old at the time of the hearing, was severed from the case involving her four younger
siblings. At the time of the termination hearing, the four younger children were the following
ages: John eleven, Leon ten, Lucy nine, and Sam eight. The trial court ultimately terminated
Mother’s parental rights to Leon and Sam but not to John and Lucy.
Before the present case, the Department received complaints regarding Mother’s
parenting, which resulted in investigations by the Department in 2014, 2016, and early 2019. In
2014, the Department received multiple reports alleging, among other things, that Mother’s
former boyfriend, who was father to some of her children, sexually abused Lisa, who was seven
years old at the time. This allegation was not ruled out. When the case was closed, Mother
accepted voluntary services through Family Based Safety Services.
In 2016, the Department again became involved after receiving a referral stating
that Mother left her children in the care of a friend and that the children were later found in the
woods. As a result of the complaint, the Department was granted temporary conservatorship of
the children. The Department determined that there was reason to believe that Mother had
neglectfully supervised the children; however, the children were returned to Mother’s custody
after Mother completed the services recommended by the Department. In early 2019, the
Department opened another investigation for allegations pertaining to John.
2 In August 2019, the Department received a referral alleging, among other things,
that Mother allowed Lisa to smoke marijuana and that Mother was using drugs, which led to the
present investigation and suit. When the Department reached out to Mother, Mother admitted to
hiding marijuana in her bedroom and smoking it while the children were asleep and to using
methamphetamine and cocaine a few months before the investigation started.
The children were removed from Mother’s custody, and the Department was
named as their temporary managing conservator. As part of her services in this case, Mother was
required to participate in a psychological evaluation; substance-abuse assessments; random drug
tests; individual therapy focusing on parenting, substance abuse, and domestic violence; a
protective parenting program; and a psychiatric evaluation. Mother was also required to provide
monthly verification of her attendance in Narcotics Anonymous meetings and follow the
recommendations of the referred psychiatrist. As part of the evaluation, the psychiatrist
recommended that Mother seek treatment from a mental-health hospital, complete an outpatient
substance-abuse program, and attend regular Narcotics Anonymous meetings.2
After the children were removed from Mother’s care, they were placed in foster
care and other care facilities during the pendency of the case. In their first placement, the
children were placed with a maternal relative, but John and Leon were subsequently moved to a
therapy-and-foster home after the relative expressed concerns about their behavior. Lucy, Lisa,
and Sam were later removed from their first placement and then housed in a shelter for a few
months before they were placed in July 2020 in a foster home belonging to Foster Mom and
Foster Dad, where the children resided for the remainder of the case. Lisa and Foster Mom had a
2 During the hearing, multiple exhibits were admitted into evidence showing the requirements that were added throughout the case. 3 preexisting relationship because Foster Mom had been Lisa’s teacher. John and Leon were
moved to various placements before being transferred to a general residential operation so
that they could be more closely monitored. While John and Leon were in this new housing
center, Foster Parents underwent additional training to provide “moderate and specialized
level[s] of care” to allow John and Leon to move into their home with their siblings, and John
and Leon moved into Foster Parents’ home in March 2021, which was a few months before the
hearing at issue.
During the termination hearing, the following witnesses testified: the Department
investigator, the Department caseworker, a clinical psychologist, the therapist for several of the
children, Lisa’s counselor, Foster Mom, the Court Appointed Special Advocate (CASA) for
the case, Mother, Mother’s parenting coach, the Department visit supervisor, and Mother’s
counselor. The Department’s investigator testified that Mother admitted to smoking marijuana at
the home and keeping marijuana in her bedroom, to using methamphetamine in 2018 and 2019,
and to using cocaine more recently. The investigator recommended that the children live
somewhere else because of Mother’s history of drug use and because of the other earlier
investigations involving allegations of sexual abuse of Lisa, neglectful supervision, and
placement of the children with inappropriate caregivers. During the investigation, Mother
suggested several individuals as placement options for the children, but the investigator
explained that the Department did not approve any of those because of the individuals’ criminal
histories or previous involvement with the Department. Similarly, the investigator explained that
the other adults who Mother had allowed to supervise the children in the home, including
Mother’s romantic partner, had criminal histories or prior involvement with the Department.
4 The caseworker assigned to this case testified that Mother did complete some of
the court-ordered services. For example, the caseworker stated that Mother visited with her
children, submitted to a psychological evaluation, and completed substance-abuse assessments in
2019 and in 2020.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00387-CV
T. D., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-19-006187, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING
MEMORANDUM OPINION
T.D. (Mother) appeals from the trial court’s termination decree following a bench
trial.1 The trial court determined that Mother knowingly placed or allowed her children to
remain in conditions that endangered their well-being and determined that termination of
Mother’s parental rights was in the best interests of two of her children. On appeal, Mother
challenges the legal and factual sufficiency of the evidence supporting the trial court’s best-
interest and endangerment determinations regarding the two children for whom the parent-child
relationship was terminated. We will affirm the trial court’s termination decree.
1 To protect the children’s privacy, we will use pseudonyms when referring to them and will refer to family members by their relationships to the children. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. Although the parental rights of the fathers were also terminated, they are not parties to this appeal. BACKGROUND
After receiving complaints regarding Mother’s parenting, the Texas Department
of Family and Protective Services (Department) took custody of her five children: Lisa, John,
Leon, Lucy, and Sam. After investigating the case for months, the Department changed its
recommendation from reunification to termination. The case involving Lisa, who was fourteen
years old at the time of the hearing, was severed from the case involving her four younger
siblings. At the time of the termination hearing, the four younger children were the following
ages: John eleven, Leon ten, Lucy nine, and Sam eight. The trial court ultimately terminated
Mother’s parental rights to Leon and Sam but not to John and Lucy.
Before the present case, the Department received complaints regarding Mother’s
parenting, which resulted in investigations by the Department in 2014, 2016, and early 2019. In
2014, the Department received multiple reports alleging, among other things, that Mother’s
former boyfriend, who was father to some of her children, sexually abused Lisa, who was seven
years old at the time. This allegation was not ruled out. When the case was closed, Mother
accepted voluntary services through Family Based Safety Services.
In 2016, the Department again became involved after receiving a referral stating
that Mother left her children in the care of a friend and that the children were later found in the
woods. As a result of the complaint, the Department was granted temporary conservatorship of
the children. The Department determined that there was reason to believe that Mother had
neglectfully supervised the children; however, the children were returned to Mother’s custody
after Mother completed the services recommended by the Department. In early 2019, the
Department opened another investigation for allegations pertaining to John.
2 In August 2019, the Department received a referral alleging, among other things,
that Mother allowed Lisa to smoke marijuana and that Mother was using drugs, which led to the
present investigation and suit. When the Department reached out to Mother, Mother admitted to
hiding marijuana in her bedroom and smoking it while the children were asleep and to using
methamphetamine and cocaine a few months before the investigation started.
The children were removed from Mother’s custody, and the Department was
named as their temporary managing conservator. As part of her services in this case, Mother was
required to participate in a psychological evaluation; substance-abuse assessments; random drug
tests; individual therapy focusing on parenting, substance abuse, and domestic violence; a
protective parenting program; and a psychiatric evaluation. Mother was also required to provide
monthly verification of her attendance in Narcotics Anonymous meetings and follow the
recommendations of the referred psychiatrist. As part of the evaluation, the psychiatrist
recommended that Mother seek treatment from a mental-health hospital, complete an outpatient
substance-abuse program, and attend regular Narcotics Anonymous meetings.2
After the children were removed from Mother’s care, they were placed in foster
care and other care facilities during the pendency of the case. In their first placement, the
children were placed with a maternal relative, but John and Leon were subsequently moved to a
therapy-and-foster home after the relative expressed concerns about their behavior. Lucy, Lisa,
and Sam were later removed from their first placement and then housed in a shelter for a few
months before they were placed in July 2020 in a foster home belonging to Foster Mom and
Foster Dad, where the children resided for the remainder of the case. Lisa and Foster Mom had a
2 During the hearing, multiple exhibits were admitted into evidence showing the requirements that were added throughout the case. 3 preexisting relationship because Foster Mom had been Lisa’s teacher. John and Leon were
moved to various placements before being transferred to a general residential operation so
that they could be more closely monitored. While John and Leon were in this new housing
center, Foster Parents underwent additional training to provide “moderate and specialized
level[s] of care” to allow John and Leon to move into their home with their siblings, and John
and Leon moved into Foster Parents’ home in March 2021, which was a few months before the
hearing at issue.
During the termination hearing, the following witnesses testified: the Department
investigator, the Department caseworker, a clinical psychologist, the therapist for several of the
children, Lisa’s counselor, Foster Mom, the Court Appointed Special Advocate (CASA) for
the case, Mother, Mother’s parenting coach, the Department visit supervisor, and Mother’s
counselor. The Department’s investigator testified that Mother admitted to smoking marijuana at
the home and keeping marijuana in her bedroom, to using methamphetamine in 2018 and 2019,
and to using cocaine more recently. The investigator recommended that the children live
somewhere else because of Mother’s history of drug use and because of the other earlier
investigations involving allegations of sexual abuse of Lisa, neglectful supervision, and
placement of the children with inappropriate caregivers. During the investigation, Mother
suggested several individuals as placement options for the children, but the investigator
explained that the Department did not approve any of those because of the individuals’ criminal
histories or previous involvement with the Department. Similarly, the investigator explained that
the other adults who Mother had allowed to supervise the children in the home, including
Mother’s romantic partner, had criminal histories or prior involvement with the Department.
4 The caseworker assigned to this case testified that Mother did complete some of
the court-ordered services. For example, the caseworker stated that Mother visited with her
children, submitted to a psychological evaluation, and completed substance-abuse assessments in
2019 and in 2020. Additionally, the caseworker acknowledged that those assessments did not
recommend substance-abuse treatment but explained that those assessments were based on self-
reported behavior and that Mother had “a history of using illegal substances.”
The caseworker related that Mother did not complete all of her required services.
More specifically, the caseworker stated that Mother did not complete outpatient treatment for
substance abuse or psychiatric treatment and did not consistently provide verification for her
attendance at Narcotics Anonymous. The caseworker testified that Mother denied ever using any
drugs, had not taken responsibility for her past drug use that initiated this case, and failed to
demonstrate her sobriety despite the dismissal deadline in this case having been extended
multiple times. In addition, although Mother did enroll in individual and other types of therapy
and did attend various trainings, Mother had not been discharged from parenting coaching or
individual therapy. Although the Department initially recommended unsupervised visitations, that
changed after Mother had a positive drug test, and the caseworker related that Mother accused
her of falsifying the test results. Mother again tested positive for illegal drugs in April 2021.
In her testimony, the caseworker discussed how Mother’s suggestions regarding
who should care for the children were rejected because of the Department’s concerns, including
concerns about some of the individuals’ criminal histories. Moreover, the caseworker related
that Mother has a long history with the Department and that the children had been removed from
Mother’s custody before. Although the caseworker acknowledged that Mother had completed
services in those prior cases, which were either closed or dismissed, the caseworker testified
5 that Mother repeated behavior warranting Department intervention in this case. The caseworker
testified that this pattern concerned her, particularly since all of the children have been removed
from Mother’s custody twice, because the required services were designed to show Mother how
to handle family situations so that the Department did not have to become involved again and
because Mother was not applying the parenting lessons that she had been taught before this case.
When discussing the children, the caseworker explained that Sam often opts out
of visits with Mother because he is afraid of her. Additionally, the caseworker testified that it
was in Sam’s best interest for Mother’s parental rights to be terminated and for him to be
adopted by Foster Parents. When discussing Leon, the caseworker acknowledged that his
placement has had “ups and downs” as he adjusted to a less restrictive environment. Further, the
caseworker discussed how Leon had never been placed in a mental-health hospital before living
with Foster Parents but that they placed him in one after he reported seeing and hearing things
that were not there. Additionally, the caseworker related that Leon is in outpatient mental-health
treatment and requires a higher level of care. However, the caseworker related that Leon’s
placement with Foster Parents is stable because Foster Parents were helping him get the
treatment that he needed to keep him and others safe and because Foster Parents had received
additional training to provide “moderate and specialized level of care” so that Leon and John
could move into their home. In addition, the caseworker related that Leon was displaying the
symptoms that resulted in his hospitalization before he moved in with Foster Parents. Further,
the caseworker stated that Foster Parents’ home was a good one for Leon to live in, that he was
getting everything that he needed there, and that now he can discuss his prior trauma and process
those events because he feels safe.
6 Regarding Foster Parents, the caseworker related that they were doing a good job
of providing age-appropriate supervision for the children and that the children are comfortable
with them, spend time with them, and engage in activities with them. Further, the caseworker
discussed how Foster Parents were interested in fostering all of the children.
During the hearing, the clinical psychologist to whom Mother had been referred
in this case testified that she completed a psychological evaluation of Mother in October 2019.
Regarding her assessment, the psychologist explained that Mother had been diagnosed with
schizophrenia when she was thirteen years old and had post-traumatic stress disorder, a history
of depression, “symptoms of psychosis,” a substance-abuse problem, a history of “suicidal
ideation and self[-]injury,” and symptoms of a “borderline personality disorder,” including mood
instability and anger issues. Further, the psychologist related that Mother needed to see a
psychiatrist to be properly medicated but had not sought mental-health treatment. Additionally,
the psychologist testified that Mother’s mental-health issues could affect her parenting if
untreated. The psychologist also expressed concern regarding the Department’s previous
investigations and the children’s prior removal from Mother’s custody, explaining that if a parent
continues to behave in a manner that causes the Department to repeatedly become involved, that
seems like “a pattern that’s going to repeat within the home.” The psychologist recommended
that Mother’s visits with her children be supervised and that she attend parenting classes and
domestic-abuse education.
Regarding Mother’s history of drug use, the psychologist explained that Mother
began smoking marijuana when she was a teenager, smoked marijuana daily until stopping
when the children were removed from her custody in this case, tried methamphetamine three or
four times in the past, and tried cocaine. The psychologist recommended that Mother submit to
7 ongoing drug testing and a substance-abuse assessment to determine if outpatient or inpatient
services should occur. Further, the psychologist explained that substance-abuse issues can affect
someone’s ability to be an effective parent because it may lead to the parent not watching the
children closely enough or allowing the children to be around inappropriate things. Similar
testimony regarding Mother’s psychological diagnoses and regarding Mother’s admissions about
her drug use were presented through the psychiatrist to whom Mother was referred. However,
the psychiatrist also testified that Mother admitted to using methamphetamine three times a week
in her bedroom away from her children.
Turning to Mother’s romantic relationships, the psychologist explained that the
father of three of Mother’s children was “very controlling” and “sexually abused” Lisa. The
psychologist also stated that Mother’s most recent relationship was also with a controlling man
who limited her social support system. The psychologist’s report was admitted into evidence
and documented that Mother admitted to being involved in abusive relationships, including one
in which the abuser assaulted her and caused her to miscarry.
The psychologist testified that she interviewed several of Mother’s children as
part of the assessment and further related that one of the children discussed how Mother’s
boyfriend would show up to their house and shake the doors and windows while attempting to
enter the house without permission, which resulted in the children having to sleep in the living
room. Regarding Lisa, the psychologist testified that, among other things, Mother physically and
psychologically abused Lisa, forced Lisa to watch Mother have sexual intercourse, and gave Lisa
marijuana to smoke. The psychologist diagnosed Sam as suffering from post-traumatic-stress
disorder, which resulted in his having a heightened startle response. The psychologist also
testified that Sam has nightmares and traumatic memories. Sam told the psychologist that
8 Mother hit him with “a switch or a belt and left marks on him” and that he witnessed domestic
violence between Mother and her boyfriend.
Following the psychologist’s testimony, the therapist for John, Leon, Lucy, and
Sam who began treating the children in September 2020 testified. The therapist explained that
Sam reported that Mother physically abused him, which has resulted in his having frequent
nightmares. The therapist related that Sam’s behavioral issues stem from his prior trauma and
that his behavior and performance in school are improving because he is now processing his
prior trauma in therapy. Given the abuse that Sam described, the therapist was concerned about
his returning to Mother’s care.
Regarding Leon, the therapist testified that he discussed “extensive hitting” by
Mother that went beyond spankings, expressing fear when discussing those incidents. For
example, Leon revealed that Mother would tell him in front of Department employees that he
and Mother would get ice cream or do another fun activity when the employees left but would
instead hit him when the employees left. The therapist revealed that Leon’s past trauma makes it
difficult for him to trust adults and that he now equates an adult’s anger with being hit. The
therapist expressed concern about Leon being returned to Mother’s custody given the abuse that
he described. Additionally, the therapist revealed that Leon initially had a hard time adjusting to
Foster Parents’ rules after having lived in a shelter for so long. In her testimony, the therapist
discussed how Leon was hospitalized after moving in with Foster Parents for hearing voices,
experiencing visual hallucinations, and indicating that he might harm himself but said he had
been released and was currently in “intensive outpatient” treatment. Additionally, the therapist
revealed that Leon is now taking medication to treat his mental-health issues.
9 The therapist testified that Leon, Lucy, and John all expressed a desire to live with
Mother. However, the therapist also said that it is not uncommon for children to express a desire
to return to an abusive parent because of their love for the parent and because they might not
know any better. Regarding this case, the therapist stated that the children’s desires might also
be motivated by a desire to return to an environment with fewer rules than Foster Parents’.
Regarding Foster Parents, the therapist testified that they seek her advice on how
to help with the children and that they drive the children to their activities and doctor’s
appointments. In addition, the therapist described Foster Parents as “caring and attentive” and
discussed how they gave each child “individual time.” The therapist testified that Foster Parents
are providing for the children’s medical, educational, and emotional needs; providing a loving
environment for all five children; helping the children to develop coping mechanisms; applying
appropriate discipline techniques; and giving the children a structured and supportive living
environment, which has benefitted all of the children and will allow them to continue to improve.
The therapist recommended that Foster Parents adopt all of the children if that was an option.
When called to the stand, Lisa’s counselor testified about acts of abuse by Mother
that Lisa discussed during therapy, including one incident where Mother “beat” Lisa “with a belt
on her back,” causing her back to bleed.
During the hearing, Foster Mom testified regarding her experience fostering the
children. Foster Mom explained that she is a schoolteacher, obtained a foster-parent license to
foster Lisa, wanted to keep all of Lisa’s siblings together, and offered to foster all of them.
Additionally, Foster Mom related that the children will flinch if she is close to them and talks
while using her hands, which she described as an unusual reaction. Further, Foster Mom stated
that all of the children are now in therapy, that she makes an effort to spend individual time with
10 each of them to develop her relationships with them, that she engages in activities with all of the
children, that the children are all now taking medicine needed to address their mental-health
issues, and that she and her husband were willing to provide extra support for the children’s
mental health if it is needed. Moreover, Foster Mom testified that the children have bonded with
each other after moving into the same house. Additionally, Foster Mom related that the children
have nicely decorated rooms with toys and electronic devices. Foster Mom also testified that she
loved the children and wanted to adopt all of them or serve as a long-term placement if they did
not want to be adopted.
Foster Mom testified that Sam described Mother as abusive and neglectful and
said that Mother would “have him lay in the bed while she was having sex with . . . two different
men on two different occasions.” Foster Mom related that Sam stated that he did not like
Mother’s behavior and that Sam’s remembering this sexual behavior has affected his behavior at
school. Moreover, Foster Mom described how Sam stated that he did not want to live with
Mother because she would “beat” him and discussed smoking marijuana with Mother while in
her custody. Regarding Leon, Foster Mom testified that he struggled when he first moved in
because he was not used to the home’s rules but that she helped him with the transition by
explaining what was expected of him. Foster Mom also described some concerning behavior
from Leon where he became upset in his room, continued to cry for several minutes, stated
that he wanted a hug, and screamed, “[p]lease don’t hit me,” when she approached him.
Additionally, Foster Mom testified that Leon has been taken to a mental-health hospital twice
while in her custody, that the first hospitalization occurred after Leon stated that he was seeing
someone who was not there and who told him to commit suicide, that she took Leon to the
hospital because she was afraid that he might hurt himself, and that his medication was changed
11 after he was hospitalized. Foster Mom related that Leon is currently in intensive outpatient
therapy and that she and her husband will make Leon’s mental health a priority by ensuring that
he completes the outpatient therapy and then placing him back with his regular therapist and a
psychiatrist. When discussing Lisa, Foster Mom stated that Lisa discussed how Mother forced
her to take photos of Mother naked and how Mother drank alcohol and smoked marijuana with
the children.
Following Foster Mom’s testimony, the CASA for the children testified that she
met the children in 2016 as part of an earlier investigation when the Department became their
temporary conservator. The CASA explained that the earlier case was closed in 2017 and that
she was in favor of reunification in that case because Mother had completed all of her services
and appeared stable and because the children wanted to go home.
Regarding the current case, the CASA explained that she is not in favor of
reunification even though Mother had achieved stability in her employment and completed her
required services. When explaining her change in position, the CASA stated that Mother poses a
risk of endangerment to the children, does not appear to have overcome her history of drug use,
exhibits current behaviors indicating “that she has not successfully . . . obtained appropriate
parenting skills,” refuses to accept any responsibility for the case, and blames Lisa for the
Department’s investigation. The CASA also expressed concern that Mother was coaching the
children to say that they wanted to live with her and enticing the children with the promise of
gifts if they were returned to her home.
The CASA acknowledged that there had been no complaints regarding Mother
during her unsupervised visits with the children, that the children reported having a good time
during those visits, and that she had no concerns about the children’s safety based on their
12 descriptions of the visits. However, the CASA recommended that Mother’s parental rights be
terminated and expressed that termination was in the children’s best interests because Mother
exhibited behavior during the pendency of the case endangering the children, will be unable to
meet the medical and psychological needs of the children, exposed the children to inappropriate
caregivers, and recommended “inappropriate” or “outright dangerous” potential placements for
the children. Moreover, the CASA related that Mother has a history of behaving violently
towards the children, involving the children in illegal drug use, exposing the children to sexual
behaviors that is reflected in the children’s subsequent behavior, and being in abusive
relationships. The CASA testified that all but one of the children described observing domestic
abuse in the house.
When discussing Sam, the CASA related that he said that Mother “hit him in
his no-no zone” while he was not wearing any clothes and pointed to his genitals and “his
bottom” during this description. Regarding one incident, the CASA testified that Sam described
Mother hitting him with such force that it caused his hands to move from the table and described
how Mother hit him multiple times in response to him moving his hands. The CASA described
these actions as “physical abuse of a child” based on her training. The CASA testified that Sam
is afraid of Mother, smoked marijuana while living with Mother, witnessed Mother having
sexual intercourse, and does not want to live with Mother because of the physical abuse that he
suffered previously.
Concerning Leon, the CASA related that he has repeatedly changed his mind
regarding whether he wanted to live with Mother or with Foster Parents. Although the CASA
agreed that Leon had been hallucinating while living with Foster Parents and had never been
placed in a mental-health facility before living with them, she also stated that Leon had those
13 symptoms before this placement and that his hospitalization seemed appropriate given that he
reported hearing voices telling him to hurt himself. In addition, the CASA testified that Leon
may develop more mental-health issues in the future.
The CASA explained that she had no concerns about the children’s safety with
Foster Parents because they provide a stable home and take care of the children’s behavioral
needs. The CASA also had no concerns about Foster Parents taking Leon to a mental-health
hospital because he needed help. Additionally, although the CASA acknowledged that the
children are bonded with Mother, she also stated that the children are bonded with and love
Foster Parents.
Next, Mother testified that she has lived in the same home for several years and
has consistently been employed. However, Mother admitted that she began using marijuana
when she was fourteen years old, was using marijuana a couple of times a week before this
case started, started using methamphetamine in 2018, told the psychiatrist that she used
methamphetamine three times a week until a few months before the Department initiated this
case, was using cocaine when this case began, had used cocaine before a prior investigation by
the Department, and had been in a physically abusive relationship for several years with a man
who sexually abused Lisa. Although Mother testified that she had been attending Narcotics
Anonymous meetings weekly, she admitted that she does not always provide proof of her
attendance and has not participated in any sort of drug-rehab program. Mother also explained
that her visits with her children in this case became supervised after she tested positive for drugs.
Mother denied having sexual intercourse in front of the children, having Lisa
take photos of her naked, and giving her children drugs. Further, Mother testified that she will
protect her children by not placing them in situations where there is physical or sexual abuse
14 and by focusing on their individual needs. Mother also related that she brings arts and crafts
for the children during her visits, that the children say that they love and miss her, that she
spends individual time with the children, and that she hugs them and tells them that she is there
for them.
Mother’s parenting coach testified that she has been Mother’s coach for a year
and that she has attended some of Mother’s visits with her children. The coach stated that
Mother’s home was safe and appropriate and that the children’s bedrooms were appropriate
and had all the items that they needed. In addition, the coach related that Mother was receptive
to parenting suggestions, makes efforts to implement those suggestions, has improved her
awareness of her children’s needs and ability to meet those needs, has demonstrated the ability to
manage parenting multiple children while giving each child individual attention, has practiced
her parenting skills, and has been consistently employed. When describing Mother’s visits with
her children, the coach explained that Mother feeds the children, brings arts and crafts for the
family to work on as suggested, keeps them protected, and meets their emotional needs, and the
coach stated that the children were comfortable talking with Mother. When discussing Leon, the
coach said Mother would address his emotional needs by hugging him and exchanging affection
and commented that they seemed to enjoy each other’s company. Addressing Sam, the coach
explained that Mother met Sam’s needs and talked with him about disputes that he had with
his siblings until he felt comfortable interacting with his siblings again. In addition, the coach
described Mother as demonstrating an interest in being involved with her children and placing
“their interests at the forefront.” Moreover, the coach stated that she has no concerns about
the children being returned to Mother’s care and did not think her parental rights should
be terminated.
15 However, the coach also admitted that Mother did not discuss her drug use or her
positive drug-test results during the pendency of this case, that Mother did not discuss prior
incidents where the children had been endangered by people that Mother allowed to supervise
them, and that she would have concerns if Mother relapsed but did not seek treatment. Similarly,
the coach admitted that Mother did not mention using corporal punishment on her children or
her children using marijuana or drinking, and the coach agreed that Mother may have been
minimizing the ways in which the children had previously been endangered. The coach also
admitted that she was only present for three or four of Mother’s visits with her children and that
Mother knew that she was being observed during those visits.
Following the coach’s testimony, a visit supervisor for the Department testified
that she had also observed some of Mother’s visits with the children. The supervisor stated that
she had no concerns about Mother keeping the children safe, that the children are happy to see
Mother, that Mother embraces her children, that Mother meets the children’s emotional needs
during the visits, that Mother individually attends to the children’s needs, and that there is a
strong and loving bond between Mother and her children. However, the supervisor admitted that
she had only observed five of Mother’s visits with her children.
Finally, Mother’s counselor testified and explained that she had worked with
Mother since October 2019, that Mother presented with symptoms of depression and anxiety,
and that Mother had a history of substance abuse. Further, the counselor related that Mother “no
longer has a pattern of abuse in terms of substances,” has developed coping techniques to deal
with her depression and anxiety, and shows fewer signs of depression and anxiety. In addition,
the counselor explained that Mother has been working on being a nurturing parent and has been
learning how to address the mental health needs of her children. Moreover, the counselor stated
16 that she did not have any concerns about Mother not being protective of her children. However,
the counselor admitted that she had never observed Mother interacting with her children.
Although the counselor admitted that Mother tested positive for drugs in December 2020, the
counselor testified that she had not observed any current pattern of drug abuse.
After the witnesses finished testifying, the trial court individually met with John,
Lucy, Leon, and Sam and subsequently explained to the parties that an important component of
the best-interest determination for children their ages is whether the child desires to live with the
parent. Next, the trial court stated that John and Lucy want to live with Mother. Regarding Sam
and Leon, the trial court related that they both want to live with Foster Parents and that Sam
wants this outcome even if that means he no longer lives with all of his siblings. During that
hearing, the trial court instructed that the siblings should have regular visits with one another
even though they will be living in different homes.
Following the conclusion of the hearing, the trial court issued two orders. The
first order concerned John and Lucy, and the trial court determined that Mother knowingly
placed or allowed John and Lucy to remain in conditions or surroundings that endangered their
well-being but that it was not in their best interest to terminate Mother’s parental rights. The
second order concerned Sam and Leon, and the trial court made the same endangerment
determination but also concluded that it was in their best interest to terminate Mother’s
parental rights.
Mother appeals the trial court’s order terminating her parental rights to Sam
and Leon.
17 STANDARD OF REVIEW AND GOVERNING LAW
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).
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.
18 DISCUSSION
In her first issue on appeal, Mother contends that the evidence was legally and
factually insufficient to support the trial court’s best-interest determination for Sam and Leon. In
her second issue on appeal, Mother asserts that the evidence is legally and factually insufficient
to support the trial court’s endangerment determination.
Best Interest
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
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.).
The Children’s Wishes
In her brief, Mother urges that this factor should weigh in her favor because the
children had consistently expressed the desire to live with her and that Leon’s change of mind
19 during trial should not be given much weight. However, the trial court explained that it met with
each child individually to ascertain their wishes and that it gave great weight to their desires.
Although those interactions were not transcribed and although the record does not establish the
types of questions the trial court asked to determine if the children had “sufficient maturity”
to express their preferences, see In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014,
pet. denied), we presume based on the trial court’s explanation that it considered the children’s
wishes and that it determined that the children were sufficiently mature, cf. Campbell v. Hart,
256 S.W.2d 255, 259 (Tex. App.—Fort Worth 1953, writ ref’d n.r.e.) (explaining that in absence
of record, appellate courts “presume the regularity of the actions of [trial] court”). As set out
above, both Leon and Sam expressed to the trial court their desire not to be returned to Mother.3
The Children’s Physical and Emotional Needs and Current and Future Danger to those Needs
In her brief, Mother notes that none of the children had any physical health issues
and argues that the Department did not establish any physical danger to the children after she
learned proper parenting techniques during her required services. Further, Mother argues that
Foster Parents were unable to care for Leon’s mental health because they had to place him in a
mental-health hospital in the short time that he lived with them and highlights that he had never
been hospitalized prior to his placement with them. Mother also highlights that the children’s
3 On appeal, Mother notes that approximately two months after the trial court signed the termination decree, the attorney ad litem for Leon filed a motion to change Leon’s placement because he had been placed in a mental-health hospital again and then placed in a therapeutic foster home and because Foster Parents “gave a 24-hour discharge notice” regarding Leon’s placement with them. Further, the attorney ad litem explained that Leon now desires to live with Mother because she understands him and because Foster Parents do not. However, no evidence regarding these events was before the trial court when it terminated Mother’s parental rights. Cf. In re T.L.B., No. 01-21-00081-CV, 2021 WL 3501545, at *10 (Tex. App.—Houston [1st Dist.] Aug. 10, 2021, pet. denied) (mem. op.) (explaining that reviewing courts “must limit [their] review to the trial evidence” when considering appeal of termination decision). 20 therapist agreed to continue to work with them if they were returned to her care. Additionally,
Mother points to the testimony from her parenting coach and therapist who both stated that
she was aware of her children’s emotional needs and to the testimony from her parenting coach
and from the Department’s visit supervisor who discussed how Mother handled the children’s
emotions individually and as a group.
As Mother points out, the evidence did establish that Foster Parents placed Leon
in a mental-health hospital, that he was placed in intensive outpatient therapy following his
release, and that he had not been placed in those types of programs before living with Foster
Parents. However, the children’s therapist and the caseworker specified that Leon is now
receiving the mental-health treatment that he has needed, and the CASA described the placement
in the mental-health hospital and outpatient treatment as appropriate given his symptoms. The
children’s therapist explained that Sam and Leon’s prior trauma from living with Mother caused
them to have mental-health issues, and the therapist related that Sam experiences nightmares and
behavioral issues because of the abuse but that he has improved since living with Foster Parents.
The psychologist to whom Mother was referred testified that Sam has post-traumatic-stress
disorder. The CASA testified that Mother would be unable to meet the children’s medical and
psychological needs and warned that Leon’s issues could get worse and require additional
treatment in the future. Multiple witnesses testified that Mother placed or suggested placing the
children in the custody of individuals who were inappropriate caregivers before and after the
children were removed from her home.
Additionally, evidence was presented regarding Mother’s history of substance
abuse and mental-health issues, which the psychologist testified could affect her parenting
abilities if not properly treated, and Mother admitted to regularly using illegal drugs, including
21 methamphetamine, cocaine, and marijuana, in her home while her children were present. 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); 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 . . . demonstrates an inability to provide a stable environment for [child] and
an inability to provide for his emotional and physical needs”).
Furthermore, evidence presented during the hearing established that Mother tested
positive for illegal drugs after the children were removed from her care. See D.H. v. Texas Dep’t
of Fam. & Protective Servs., No. 03-21-00255-CV, ___ S.W.3d ___, 2021 WL 5098308, at *5
(Tex. App.—Austin Nov. 3, 2021, no pet. h.) (noting that “this and numerous other courts of
appeals have recognized that a parent’s decision to use illegal drugs while the termination suit is
pending, and the parent is at risk of losing her child, may support a finding of endangering
conduct”); 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 can be sufficient
evidence to support endangerment finding); see also In re M.G.D., 108 S.W.3d 508, 513, 514
(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (noting that “evidence of a recent
turnaround should be determinative only if it is reasonable to conclude that rehabilitation, once
begun, will surely continue” and that narcotics-abuse issues “sometimes reappear”).
Moreover, during the hearing, Mother admitted that she had been in an abusive
relationship for years with the father of three of her children. See In re S.K.A., 236 S.W.3d 875,
22 903 (Tex. App.—Texarkana 2007, pet. denied) (explaining that history of abuse in child’s family
is relevant to best-interest analysis). The psychologist testified that Mother’s most recent
romantic partner was controlling and limited Mother’s social support system. The psychologist
also explained that Sam observed domestic abuse between Mother and her boyfriend near the
time of his removal, and the psychologist described incidents in which the current boyfriend
attempted to break into the home, forcing the children to sleep in the living room away from
the doors and windows. In addition, evidence was presented showing that the children had
been removed from Mother’s custody before this case after she placed the children in the care
of someone who did not supervise them properly, resulting in the children later being found in
a wooded area.
Mother’s Parental Abilities and Programs Available to Help Her
When addressing the fourth and fifth factors, Mother highlights the testimony
from her counselor, her parenting coach, and the Department’s visit supervisor discussing how
Mother implemented parenting suggestions, practiced her nurturing skills, met the children’s
emotional needs during visits with the children, protected her children during their visits, stopped
her pattern of substance abuse, learned coping techniques to deal with her mental-health issues,
learned how to address her children’s mental-health issues, and improved her awareness of her
children’s needs, her ability to meet those needs, and her ability to manage multiple children.
Further, Mother emphasizes the services that she completed in this case, including submitting to
psychological and psychiatric evaluations, drug testing, and substance-abuse evaluations that did
23 not recommend treatment, and attending parenting coaching, domestic-violence classes, nurturing
parenting classes, scheduled visits with her children, and Narcotics Anonymous meetings.4
However, evidence was also presented showing that the parenting coach, visit
supervisor, and Mother’s counselor had either observed only a few or no visits between Mother
and her children. Moreover, Mother did not disclose to her parenting coach her drug use during
the pendency of this case, the prior endangerment allegations from previous cases initiated by the
Department, or any acts of physical abuse against her children, and the coach agreed that Mother
may have been downplaying how much the children had previously been endangered.
4 In her brief, Mother points to several cases in which our sister courts of appeals have determined that the evidence was insufficient to establish that termination was in the children’s best interest where the parents had made significant improvements after the children had been removed from their custody; however, we believe those cases are distinguishable. See, e.g., In re C.A.M., 633 S.W.3d 68, 78-80 (Tex. App.—Amarillo 2021, no pet.) (reversing best-interest determination where evidence showed, among other things, that caseworker did not testify that termination was in children’s best interest, that abusive father was “substantial[ly to] blame” for children’s removal rather than appellant (mother), and that appellant turned her life around and complied with requirements of service plan); In re S.R.L., 243 S.W.3d 232, 234, 236 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (reversing termination on best-interest grounds in case where father had committed crime resulting in his incarceration but where trial court indicated that it wanted to allow father to be in children’s life and that father had never “done anything bad” to children, where there was “substantial and uncontradicted evidence that he has turned his life around” after attending anger management classes and completing all portions of service plan, and where father had home and family support in place); In re W.C., 98 S.W.3d 753, 766 (Tex. App.—Fort Worth 2003, no pet.) (reversing on best-interest ground where “the evidence is uncontradicted that appellant has done everything the Department required of her,” where appellant had made significant improvements in her life and in her coping skills, and where record showed that appellant could not have done anything more to have her children returned). In this case, there was evidence that Mother did not fully comply with her service plan and tested positive for drug use after the children were removed, that the Department had removed the children from her custody for endangering her children before the investigation in this case, that Mother physically abused Sam and Leon, that the trauma Sam and Leon experienced while living with Mother caused them to have mental-health issues, and that Mother gave Sam illegal drugs and had sexual intercourse in front of him more than once. Additionally, witnesses testified that terminating Mother’s parental rights was in the children’s best interest. 24 In addition, the Department caseworker explained that the substance-abuse
assessment was based on self-reported behavior and described Mother’s long history of drug use.
The caseworker also testified that Mother did not complete the psychiatric treatment or
outpatient substance-abuse treatment that had been recommended by the psychiatrist and
required by the Department and did not provide consistent verification of her attendance at
Narcotics Anonymous meetings. Further, the caseworker emphasized that Mother has not been
discharged from parenting coaching or individual therapy. Moreover, the psychologist and
psychiatrist to whom Mother was referred both testified regarding Mother’s multiple mental-
health diagnoses. See In re R.J., 579 S.W.3d 97, 118 (Tex. App.—Houston [1st Dist.] 2019, pet.
denied) (explaining that “the impact of a parent’s mental illness on his ability to parent and the
stability of the home are relevant factors in the best interest” analysis).
Further, the caseworker discussed how Mother had completed services in prior
Department cases, including one where her children were removed from her custody, but
still engaged in the behavior initiating the current case. Similarly, the psychologist to whom
the Department referred Mother and the caseworker explained that the Department’s prior
removal of the children was concerning because when a parent repeats behavior that causes the
Department to repeatedly become involved, the pattern is likely to repeat if the children are
returned to the parent’s care. Cf. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio
2013, pet. denied) (explaining that “trier of fact may measure a parent’s future conduct by his
past conduct” in best-interest determination). The psychologist also explained that substance-
abuse issues can affect the ability of someone to be an effective parent by resulting in the
children being improperly supervised or exposing the children to drugs. The CASA explained
that she was in favor of reunification in the prior case in which the children were removed but
25 that she changed her mind in this case, in part, because Mother completed her services in the
prior case but later behaved in a way that endangered her children and refused to accept
responsibility for her conduct.
Plans for Children and Stability of the Home
In her brief, Mother highlights that the children’s therapist stated that it would
be ideal for the children to be placed together because the children improved more when they
were together. In addition, Mother’s parenting coach described Mother’s home as safe and
appropriate for the children and stated that the children’s bedrooms at Mother’s home had all the
items that they would need and that she would have no concerns if the children were returned to
Mother’s care. Similarly, the Department’s visit supervisor testified that she had no concerns
regarding Mother keeping the children safe, and Mother’s counselor testified that she did not
have any concerns about Mother protecting her children.
Although the children’s therapist did explain that keeping the children together
would be ideal, the therapist also expressed concerns about the possibility of Leon and Sam
being returned to Mother’s care and recommended that Foster Parents adopt all four children if
that were possible because they provide for the children’s medical, educational, and emotional
needs and provide a loving and stable environment that will benefit the children. The CASA
also expressed concerns about the stability of Mother’s home and stated that Foster Parents
provide a stable home and take care of the children’s needs and that the children have bonded
with them.
The Department investigator testified that the children should not live with
Mother because of Mother’s prior history of drug use and history of engaging in endangering
26 behavior warranting the Department’s involvement, and the caseworker explained that the
Department changed its reunification goal after Mother tested positive for drugs multiple times
during the pendency of the case. Further, the caseworker testified that it was in Sam’s best
interest to be adopted by Foster Parents and that since Leon’s placement with Foster Parents, he
has been able to begin processing his prior trauma because he is in a home in which he feels safe.
In her testimony, Foster Mom discussed the efforts that she and her husband undertook to
provide the children a safe home and stated that she and her husband have bonded with the
children and provided rooms for the children that meet their needs. Further, Foster Mom
expressed her desire to adopt all of the children or serve as a long-term placement for them. 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).
Mother’s Actions Indicating Improper Parent-Child Relationship
When addressing this factor, Mother notes that the prior cases involving the
Department concluded after she successfully finished her services. Additionally, Mother
emphasizes that the allegations of abuse concerned incidents that occurred before this case
started and before she learned better ways to parent her children through her required services.
Moreover, Mother mentions that no allegations of abuse were made before the children started
living with Foster Parents. In addition, Mother challenges the Department’s evidence concerning
her alleged drug use during the pendency of the case and argues that even if she tested positive
for drugs a few times during the twenty months that she was being tested, that should not be
27 enough to conclude that termination was in the children’s best interest. Further, Mother
emphasizes that her parenting coach and counselor testified regarding how she had learned better
parenting practices during this case, which she asserts is the most direct evidence of what her
parenting will be like in the future.
As set out previously, evidence was presented regarding Mother’s extensive
history of drug use prior to the children’s removal and regarding her testing positive for drugs
during the pendency of this case. Cf. 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”). In addition, the psychologist to whom the Department initially referred
Mother for an assessment testified that Lisa stated that Mother physically and psychologically
abused her, forced her to watch Mother have sexual intercourse, and gave her marijuana to
smoke, and Lisa’s individual counselor discussed acts of physical abuse by Mother against Lisa.
Cf. In re E.A.G., 373 S.W.3d 129, 143 (Tex. App.—San Antonio 2012, pet. denied) (explaining
that “a parent’s abuse of other children in the home can support a finding of endangerment”).
The psychologist also testified that Sam described being hit with a belt, which left marks on his
body. The children’s therapist and the CASA discussed how Sam and Leon described being
physically abused by Mother. The CASA and Foster Mom discussed how Mother physically
abused Sam, had sexual intercourse in front of him, and smoked marijuana with him. In
addition, Foster Mom described how Lisa mentioned that Mother forced her to take photos of
Mother naked. 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).
28 Viewing all the evidence in the light most favorable to the trial court’s decree, we
conclude that a fact finder could have formed a firm belief or conviction that termination of
Mother’s parental rights is in the best interest of Sam and Leon. In light of the entire record, the
disputed evidence that a reasonable fact finder could not have credited in favor of the best-
interest finding is not so significant that a fact finder could not reasonably have formed a firm
belief or conviction that termination of Mother’s parental rights was in their 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 was in Sam and Leon’s best interest.5
For these reasons, we overrule Mother’s first issue on appeal.
Endangerment
In her second issue, Mother argues that the evidence is legally and factually
insufficient to support the trial court’s conclusion that she engaged in conduct listed as a
statutory ground for termination. The statutory predicate ground at issue in this case specifies
that a trial court may terminate an individual’s parental rights if the person “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child.” Tex. Fam. Code § 161.001(b)(1)(D). “In this
context, ‘endanger,’ means ‘to expose to loss or injury, to jeopardize.’” J.G. v. Texas Dep’t of
Fam. & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.) (quoting
5 In her brief, Mother also points to statements by the trial court questioning the sufficiency of the evidence before making its ultimate ruling. Although the trial court did indicate that the termination decisions were close ones, it ultimately terminated Mother’s parental rights to two of her children, indicating that it concluded that the evidence was sufficient. 29 In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)). “Endangerment encompasses ‘more than a threat
of metaphysical injury or the possible ill effects of a less-than-ideal family environment,’ but it is
not necessary that the conduct was directed at the child or that the child actually suffered injury.”
Id. (quoting In re M.C., 917 S.W.2d at 269).
Although subsection (D) focuses on the child’s physical environment, “the
environment produced by the conduct of the parent[] bears on the determination of whether the
child’s surroundings threaten his well-being.” Id. (quoting In re M.D.M., 579 S.W.3d 744, 764
(Tex. App.—Houston [1st Dist.] 2019, 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 R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). Evidence
regarding domestic violence is relevant to an endangerment determination even if the violence
is not perpetrated against the child. In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th
Dist.] 2019, no pet.). Similarly, evidence regarding a child being exposed to the sexual activity
of the parent is relevant to an endangerment determination. See Ayala v. Texas Dep’t of Fam. &
Protective Servs., No. 03-09-00121-CV, 2010 WL 3672351, at *5 (Tex. App.—Austin Sept. 16,
2010, no pet.) (mem. op.). When determining whether a child’s surroundings endangered his
well-being, courts may consider a parent’s history of drug use, see In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.—Fort Worth 2003, no pet.), and may also consider whether the child has been
exposed to drugs, In re J.W., No. 02-08-00211-CV, 2009 WL 806865, at *5 (Tex. App.—Fort
Worth Mar. 26, 2009, no pet.) (mem. op.).
30 When challenging the sufficiency of the evidence, Mother highlights the evidence
indicating that she complied with the services that were required for family reunification.6
Further, Mother emphasizes the testimony from her counselor, her parenting coach, and the
Department’s visit supervisor who testified regarding Mother’s improved parenting and indicated
that they did not have any safety concerns about the children being returned to Mother’s custody.
Additionally, Mother notes that although the caseworker testified that Mother did not complete
substance-abuse treatment, neither of the substance-abuse assessments to which she submitted
recommended treatment, and she argues that the evidence regarding her drug use after her
children were removed likely stemmed from a false positive result because she tested negative
in subsequent tests. Accordingly, Mother argues that the evidence established that the
endangerment concerns by the Department had been alleviated.7
6 Regarding the caseworker’s testimony that Mother did not complete all of her services, Mother contends that the trial court found that the caseworker was not credible. During the hearing, the trial court did state that caseworkers not providing all the necessary information to all parties and not keeping reunification as the primary goal undermines the process and causes a trial court to question the evidence that the Department presents, and the trial court did specify its concerns that this may have happened in this case; however, the trial court did not make any express credibility determination regarding the caseworker’s testimony. 7 In this issue and in the prior one, Mother argues that the evidence could not be sufficient because the trial court allowed two of the siblings—John and Lucy—to remain in Mother’s custody even though the evidence regarding all four children was similar in nature and because the trial court required that the siblings have regular contact, which would result in the children for whom Mother’s rights were terminated having contact with Mother. Although the trial court heard evidence regarding all four children, some evidence regarding Sam and Leon differed from the evidence pertaining to the other children. Cf. In re T.C., No. 05-19-00262-CV, 2019 WL 3852657, at *8 n.9 (Tex. App.—Dallas Aug. 16, 2019, pet. denied) (mem. op.) (rejecting argument that “because the trial court did not conclude the evidence required termination as to all six children, the evidence was legally or factually insufficient to support termination as to any of them”). In addition to the evidence regarding Sam and Leon’s desire not to live with Mother, evidence was presented regarding specific instances of physical abuse that Mother inflicted on Leon and Sam and regarding how the trauma of those events resulted in mental-health issues. Further, evidence was introduced indicating that Mother had sexual intercourse while Sam was 31 However, although Mother denied it, evidence was presented that Mother had
physically abused both Leon and Sam, engaged in inappropriate sexual behavior in Sam’s
presence more than once, and gave illegal drugs to Sam and at least one of his siblings.
Moreover, Mother admitted to being in a long-term abusive relationship with the father of three
of her children. Further, testimony from the children’s therapist indicated that the abuse that
Sam and Leon suffered caused them to have mental-health issues. In addition, evidence was
introduced regarding Mother’s history of using illegal drugs while the children were in her care
and her testing positive for drugs.
Additionally, evidence was presented that the children were removed from
Mother’s custody by the Department prior to this case and that she completed her services to
obtain the return of the children but that she subsequently engaged in the endangering conduct
that resulted in their removal in this case. Cf. In re D.O., 338 S.W.3d 29, 34 (Tex. App.—
Eastland 2011, no pet.) (noting in endangerment analysis “that the Department has conducted
numerous investigations” of parents “over the years”). Finally, several witnesses testified that
Mother placed her children in the care of inappropriate caregivers. See In re M.D., No. 02-14-
00305-CV, 2015 WL 729506, at *4 (Tex. App.—Fort Worth Feb. 19, 2015, no pet.) (mem. op.)
(emphasizing in sufficiency review of endangerment finding that parent placed children “‘with
inappropriate caregivers on several occasions’”).
Viewing all the evidence in the light most favorable to the trial court’s decree, we
conclude that a fact finder could have formed a firm belief or conviction that Mother knowingly
in the bed with her on multiple occasions and that Mother gave Sam marijuana. Moreover, although the trial court did order that the siblings have regular visits, the trial court explained that this was for the benefit of the children and not for allowing Mother to visit with Sam and Leon.
32 placed or allowed Sam and Leon to remain in conditions or surroundings that endangered their
well-being. In light of the entire record, the disputed evidence that a reasonable fact finder could
not have credited in favor of the best-interest finding is not so significant that a fact finder could
not reasonably have formed a firm belief or conviction that Mother knowingly placed or allowed
Sam and Leon to remain in conditions or surroundings that endangered their well-being.
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
endangerment determination.
For these reasons, we overrule Mother’s second issue on appeal.
CONCLUSION
Having overruled both of Mother’s issues on appeal, we affirm the trial court’s
decree terminating her parental rights to Sam and Leon.
__________________________________________ Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Smith
Affirmed
Filed: January 6, 2022
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T. D. v. Texas Department of Family and Protective Services, Counsel Stack Legal Research, https://law.counselstack.com/opinion/t-d-v-texas-department-of-family-and-protective-services-texapp-2022.