in the Interest of C.W. and M.W., Children ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00252-CV
___________________________
IN THE INTEREST OF C.W. AND M.W., CHILDREN
On Appeal from County Court at Law No. 1
Wichita County, Texas
Trial Court No. 13149-JR-E
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
After a bench trial, the trial court terminated Mother’s parental rights to her
son Charles and daughter Mary.1 In two issues, Mother contends that the evidence
was legally and factually insufficient to support the trial court’s findings that (1) she
had constructively abandoned her children and shown an inability to provide them
with a safe environment and (2) termination was in her children’s best interest. See
Tex. Fam. Code Ann. § 161.001(b)(1)(N)(iii), (b)(2). With regard to the first issue,
because the trial court based its termination decree on four grounds, and because
Mother attacks only one of the four, we can affirm the judgment based on the three
grounds that she has not contested. We overrule Mother’s second issue because
legally and factually sufficient evidence supports the trial court’s finding that
termination was in the children’s best interest. Therefore, we affirm the trial court’s
judgment.
II. BACKGROUND
In May 2018, the Texas Department of Family and Protective Services filed a
“Petition for Order to Participate in Services” in which it named Mother as a
1
We use aliases to identify the children, and we identify family members by
their relationship to the children. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App.
P. 9.8(b)(2).
2
respondent.2 In the supporting affidavit, the Department reported that the police
department had made a referral on April 12, 2018, after the police had responded to a
family disturbance during which Mother and Father had engaged in domestic violence
in the children’s presence.
Thereafter, in the Department’s November 29, 2018 “Compliance Report,” it
stated that Mother had “failed to complete services that were ordered by this court,”
that she had “become increasingly uncooperative,” and that “the Department ha[d]
new concerns.” Three of the Department’s listed new concerns (among others) were:
• Mother had been arrested in August 2018 for driving while intoxicated
after running her car into a residence and leaving the scene;
• the police were called to Mother’s residence in September 2018 because
Mary was missing; and
• the Department learned in October 2018 that Mary had missed nineteen
days of school, that the school had asked Mother to meet with school
personnel to discuss Mary’s attendance, and that Mother had never
contacted the school.
The report concluded, “The Department believes that a non-emergency removal is
warranted in this case.”
2
The Department also named Father as a respondent, but his parental rights
were terminated separately from Mother’s. In addition to Charles and Mary, a third
child (Ann) was initially involved in this suit. Ann’s case was disposed of
independently. By the time of trial, only Mother’s parental rights to Charles and Mary
remained in dispute. Because neither Father nor Ann were pertinent to that trial or
relevant to this appeal, we do not include them in the procedural background.
3
On December 12, 2018, the Department filed its “Original Petition for
Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the
Parent–Child Relationship.” On January 9, 2019, after a show-cause hearing at which
Mother did not appear, the trial court appointed the Department as the children’s
temporary managing conservator. Mother admitted having been served and knowing
that the Department had taken her children, but she did not remember why she did
not appear.
For over two years, Mother did not work her services and continued to use
drugs.3 During that time, Mother was arrested twice—once for possession of a
controlled substance and once for domestic violence. And while the children
remained in foster care, Mother found a new boyfriend, who was a felon and drug
addict and who engaged in domestic violence against Mother. In February 2021,
Mother decided that she wanted to get her children back, so she stopped using drugs,
started working her services, became employed around March, rented a house in
April, and broke up with her boyfriend in May.
Over two-and-one-half years after the children had been removed, in
August 2021, the parties proceeded to a bench trial. By the time of trial, Mother had
not seen or had contact with her children for about a year and a half.
3
The case went beyond the normal time limits. See Tex. Fam. Code Ann.
§ 263.401. Much of the delay was allegedly COVID related.
4
On August 13, 2021, the trial court signed a termination judgment. In it, the
trial court found that termination was in the children’s best interest and that Mother
had transgressed four grounds for termination. Specifically, the trial court found that
she had:
• knowingly placed or knowingly allowed the children to remain in
conditions or surroundings that endangered their physical or emotional
well-being;
• engaged in conduct or knowingly placed the children with persons who
had engaged in conduct that endangered the children’s physical or
emotional well-being;
• constructively abandoned the children, who had been in the permanent
or temporary managing conservatorship of the Department for not less
than six months and: (1) the Department had made reasonable efforts to
return the children to her; (2) she had not regularly visited or maintained
significant contact with the children; and (3) she had demonstrated an
inability to provide the children with a safe environment; and
• failed to comply with the provisions of a court order that specifically
established the actions necessary for her to obtain the return of the
children, who had been in the permanent or temporary managing
conservatorship of the Department for not less than nine months as a
result of the children’s removal from her for abuse or neglect under
Chapter 262.
Id. § 161.001(b)(1)(D), (E), (N), (O).
III. DISCUSSION
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except the child’s right to inherit.
5
Id. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,
“[w]hen the State seeks to sever permanently the relationship between a parent and a
child, it must first observe fundamentally fair procedures.” In re E.R., 385 S.W.3d
552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388,
1391–92 (1982)).
Termination decisions must be supported by clear and convincing evidence.
See Tex. Fam. Code Ann. §§ 161.001(b), .206(a); In re E.N.C., 384 S.W.3d 796, 802
(Tex. 2012). Due process demands this heightened standard because “[a] parental
rights termination proceeding encumbers a value ‘far more precious than any property
right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at
1397). Evidence is clear and convincing if it “will produce in the mind of the trier of
fact a firm belief or conviction as to the truth of the allegations sought to be
established.” Tex. Fam. Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.
For a trial court to terminate a parent–child relationship, the party seeking
termination must establish, by clear and convincing evidence, that (1) the parent’s
actions satisfy just one of the many predicate grounds that are listed in
Subsection 161.001(b)(1) of the Texas Family Code and (2) termination is in the
child’s best interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2); E.N.C., 384 S.W.3d at
803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
6
Mother’s first issue addresses the grounds requirement. Her second issue
addresses the best-interest requirement.4
A. First Issue
In Mother’s first issue, she contends that the evidence is legally and factually
insufficient to support the trial court’s finding that she had shown an inability to
provide the children with a safe environment, which was one of the elements needed
to find the ground of constructive abandonment under Section 161.001(b)(1)(N). See
Tex. Fam. Code Ann. § 161.001(b)(1)(N).
The trial court found four statutory violations under Section 161.001(b)(1), but
Mother challenges only one of the four. In doing so, she concedes the other three
findings. See In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003,
no pet.). We need not address Mother’s attack on the one finding because we can
affirm on the bases of the other three. See id.; see also Tex. R. App. P. 47.1. With a
caveat not applicable here, only one finding is necessary.5 See L.M., 104 S.W.3d at
647. Therefore, we overrule Mother’s first issue.
4
In the table of contents of Mother’s brief, she lists these two issues, but when
presenting her issues, she identifies three. She never addresses the third one in the
argument portion of her brief. To the extent that Mother intended to assert a third
issue, she waived it. See Moseley v. Arnold, 486 S.W.3d 656, 660 n.5 (Tex. App.—
Texarkana 2016, no pet.).
5
If the trial court terminates on multiple grounds, if grounds under
Sections 161.001(b)(1)(D) or (E) are among those grounds, and if the parent
challenges the findings on the (D) and (E) grounds, the appellate court must address
either the (D) or (E) grounds on appeal (or both if neither withstands appellate
7
The success of Mother’s appeal thus turns on whether the evidence was legally
and factually sufficient to support the trial court’s best-interest finding. Id.B. Second Issue
In Mother’s second issue, she attacks the legal and factual sufficiency of the
evidence supporting the trial court’s finding that termination was in her children’s best
interest.
1. Applicable Law
There is a strong presumption that keeping a child with a parent is in the child’s
best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
We review the entire record to determine the child’s best interest. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative both of
grounds under section 161.001(b)(1) and of best interest under section 161.001(b)(2).
Id. at 249; In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Nonexclusive factors that the
factfinder in a termination case may also use in determining the child’s best interest
include:
review) because they may have collateral consequences if the parent has other
children. See Tex. Fam. Code Ann. § 161.001(b)(1)(M) (providing that a prior
termination under (D) or (E) is a ground for terminating parental rights to a different
child); In re L.G., 596 S.W.3d 778, 780 (Tex. 2020); In re N.G., 577 S.W.3d 230, 237
(Tex. 2019) (“Allowing section 161.001(b)(1)(D) or (E) findings to go unreviewed on
appeal when the parent has presented the issue to the court . . . violates the parent’s due
process and due course of law rights.” (emphasis added)). Mother has not contested
the (D) and (E) findings, so this exception to the general rule does not apply.
8
• the child’s desires;
• the child’s emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the child’s best
interest;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the parent’s acts or omissions that may indicate that the existing parent–
child relationship is not a proper one; and
• the parent’s excuse, if any, for the acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249
(stating that in reviewing a best-interest finding, “we consider, among other evidence,
the Holley factors”); E.N.C., 384 S.W.3d at 807. These factors do not form an
exhaustive list, and some factors may not apply to some cases. C.H., 89 S.W.3d at 27.
Furthermore, undisputed evidence of just one factor may suffice in a particular case to
support a finding that termination is in the child’s best interest. Id. On the other
hand, the presence of paltry evidence relevant to each factor will not support such a
finding. Id.; In re J.B., No. 02-18-00034-CV, 2018 WL 3289612, at *4 (Tex. App.—
Fort Worth July 5, 2018, no pet.) (mem. op.).
9
2. Standard of Review
a. Legal Sufficiency
In evaluating the evidence for legal sufficiency in parental-rights-termination
cases, we determine whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction that the Department proved both the particular
ground for termination and that termination was in the child’s best interest. In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005). We review all the evidence in the light most favorable to the finding and
judgment, and we resolve any disputed facts in favor of the finding if a reasonable
factfinder could have done so. J.F.C., 96 S.W.3d at 266. We also must disregard all
evidence contrary to the finding that a reasonable factfinder could have disbelieved, in
addition to considering undisputed evidence even if it is contrary to the finding. Id.
That is, we consider evidence favorable to termination if a reasonable factfinder
could, and we disregard contrary evidence unless a reasonable factfinder could not.
See id. In doing our job, we cannot weigh witness-credibility issues that depend on the
witness’s appearance and demeanor; that is the factfinder’s province. J.P.B.,
180 S.W.3d at 573. And even when credibility issues appear in the appellate record,
we defer to the factfinder’s determinations so long as they are not unreasonable. Id.
b. Factual Sufficiency
We must perform “an exacting review of the entire record” in determining
whether the evidence is factually sufficient to support terminating a parent–child
10
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In a factual-sufficiency
review, we give due deference to the factfinder’s findings and do not supplant its
judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We
determine whether, on the entire record, a factfinder could reasonably form a firm
belief or conviction that the parent violated an alleged ground and that termination
was in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); see C.H.,
89 S.W.3d at 25. If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction in the
truth of its finding, then the evidence is factually insufficient. H.R.M., 209 S.W.3d at
108.
3. Discussion
a. Children’s Desires
At the time of trial in August 2021, Charles and Mary were twelve and nine
years old respectively. Neither child testified at trial, and whether they possessed
sufficient maturity to express an opinion regarding a parental preference is
questionable. See In re M.H., 319 S.W.3d 137, 150 (Tex. App.—Waco 2010, no pet.);
see also Tex. Fam. Code. Ann. §§ 153.134(a)(6), 156.101(a)(2) (both providing that a
child must be at least twelve years old before the child’s preference, if any, regarding
the person to have the exclusive right to designate the child’s primary residence
becomes a factor).
11
The children had not seen Mother since February 2020, so they had not seen
her in about eighteen months. During that time, Mother did not send them any
birthday cards or Christmas gifts and had not even spoken to them on the telephone.
In Mother’s past visits, though, the caseworker (Shea Coats) acknowledged that the
children seemed bonded to her.
The trial court appointed CASA6 of Red River as the children’s guardian ad
litem. The CASA supervisor assigned to the case in the spring of 2021, Amanda
Mataska, testified that when she and the children engaged in general conversations,
they never mentioned Mother, but when Mataska specifically asked them about
Mother, they would say that they missed her.
Overall, because there was no evidence of the children’s desires, we conclude
that this factor is neutral. See In re X.R.L., 461 S.W.3d 633, 640 (Tex. App.—
Texarkana 2015, no pet.) (“[T]he first Holley factor is neutral because no evidence of
the children’s desires was presented. . . . A description of the parent’s love for or
interest in the children and the fact that she visited them and tried to comply with her
service plan does not provide us with evidence concerning the desires of the children
themselves.”).
“A ‘CASA’ is a court appointed special advocate.” In re J.L., No. 13-07-00345-
6
CV, 2010 WL 746702, at *4 n.29 (Tex. App.—Corpus Christi March 4, 2010, no pet.)
(mem. op.).
12
b. Children’s Emotional and Physical Needs Now and in the
Future and the Emotional and Physical Danger to the
Children Now and in the Future
Children need long-term safety and stability. See Tex. Fam. Code Ann.
§ 263.307(a) (“[T]he prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest.”); In re M.A.J., 612 S.W.3d
398, 411 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) (op. on reh’g); A.C. v.
Tex. Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 705–06 (Tex. App.—Austin
2019, pet. denied). Mother posed a danger to both due to issues of domestic violence
and drug use.
i. Domestic Violence
Both children had aggressive behavioral issues. Mother herself admitted that
her children had learned that behavior from home.
Because of the children’s aggressive behavior, they had been in five placements
over the course of the case. The first caseworker (and the current supervisor), Coats,
testified that allowing children to remain in homes with domestic violence endangers
their physical and emotional well-being. And the second caseworker, Chantelle
Prince-Cowan, stated that returning the children to Mother would significantly impair
their physical and emotional well-being.
During Mother’s twelve-year relationship with Father, she estimated that they
had engaged in physical domestic violence five to ten times and had engaged in
emotional domestic violence between fifty and one hundred times. She estimated that
13
the police were called “[m]aybe five” times and that the police arrested her on one
occasion and arrested Father on another. According to Mother, she and Father had
separated in October 2019 and were now divorced.
Mother was not necessarily always the victim of domestic violence; she
admitted that she went to jail in May 2019 on an assault charge against her mother-in-
law but maintained that the charges had been dismissed. By way of explanation,
Mother said that her mother-in-law had assaulted her twice before the May 2019
incident.
After deciding to engage in services in February 2021, Mother completed an
anger management class in June 2021. Mother admitted having a prior case with
Child Protective Services (CPS) in 2015 for domestic violence during which she
received anger-management and domestic-violence counseling.
Mother also had a 2007 CPS case involving Ann, but Mother denied that the
Department had made a “reason-to-believe” disposition against her for neglectful
supervision and asserted that the Department had returned Ann to her in 2008.7 As
part of that CPS case, Mother had received in-home parenting and counseling
sessions.
7
After investigating allegations of child abuse or neglect, CPS will assign one of
five possible dispositions: (1) reason to believe (based on a preponderance of the
evidence); (2) ruled out; (3) unable to complete; (4) unable to determine; or
(5) administrative closure. In re Z.G., No. 02-19-00352-CV, 2021 WL 1229967, at *24
(Tex. App.—Fort Worth Apr. 1, 2021, no pet.) (mem. op.).
14
Mother had a fourth child who was not the subject of this suit, Robert. While
Mother was in an Arizona domestic violence shelter, the Arizona CPS removed
Robert from his father. Mother conceded the obvious implication—she and Robert’s
father had engaged in domestic violence too. Mother maintained that after the
removal, the Arizona CPS was dismissed from the case, Robert was made a ward of
the state, and he lived with his grandmother until he was eighteen years old. Mother
agreed with placing Robert with his grandmother. Robert was now eighteen and out
of school.
Both Prince-Cowan and Mataska reported that Charles and Mary had made
progress. Mataska, however, added that Charles “still [had] a long way[ ] to go.”
At one point during the case, the children were placed with Father for a
monitored return, but that ended badly. Father assaulted Mary. After being placed
with Father, the children’s behavior became worse.
ii. Drugs
In addition to domestic violence, another concern was Mother’s drug use.
Mother admitted that when she did drugs, she used methamphetamine, marijuana,
and alcohol. Coats stated that “children being around people who use drugs
endangers them.” Coats elaborated that not only might the children be exposed to
the drugs, but also the children’s caregivers while under the drugs’ influence are not
able to properly supervise them.
15
Mother maintained, however, that she had not used any drugs since
February 2021. Prince-Cowan provided testimony supporting Mother’s assertion.
She stated that after Mother tested positive for methamphetamine and marijuana on
February 5, 2021, and was a no-show for her February 25, 2021 drug screening,
Mother thereafter tested negative on all of her subsequent urinalyses and hair-follicle
tests.
Mother’s drug history, though, was extensive. She admitted that she had
started using methamphetamine when she eighteen or nineteen years old in 2003,
stopped using drugs around 2006, and then resumed her drug habit around 2014.
When asked why she had not engaged in services or attended any hearings in the case
until July 2019 when her children were removed in January 2019, Mother responded,
“I was using, ma’am.”
According to Prince-Cowan, for the first twenty-six months of the case—from
December 2018 through February 2021—Mother had fifteen no-shows for drug
testing, a couple of occasions when she appeared for the test but refused to take it,
and positive drug screens.8 Mother acknowledged that she had been told that if she
did not submit to drug tests, the results would be recorded as positive, and she
understood the rationale behind that result: “Because [people] would only take a drug
Prince-Cowan testified that Mother had refused to be tested a couple of times,
8
but the Department’s July 2021 permanency report to the court identified only one
refusal.
16
test if they were clean.” Prince-Cowan explained that one of the reasons that
Mother’s visits with the children were stopped was because Mother was not taking her
drug tests.
The Department’s July 2021 permanency report to the court shows that
Mother took her first drug test in July 2019 and tested negative, tested positive for
methamphetamine in December 2019, and did not take another test until a year later
in December 2020, when she tested positive for amphetamine.9 After testing positive
for amphetamine in December 2020, Mother tested positive for methamphetamine
and marijuana in February 2021. Thereafter, she tested negative for illegal drugs.
iii. Conclusion
A reasonable factfinder could question whether domestic violence and drug use
were things of the past. Neither were aberrations; Mother had a long history of both.
From a parent’s past misconduct, a factfinder may infer a parent’s future conduct. See
A.S. v. Tex. Dep’t of Fam. & Protective Servs., 394 S.W.3d 703, 714 (Tex. App.—El Paso
2012, no pet.) (“[E]vidence of past misconduct or neglect is permissible as an
inference that a parent’s future conduct may be measured by their past conduct.”).
We conclude that these factors support the trial court’s termination finding.
9
Amphetamine is a metabolite of methamphetamine. See In re R.A., No. 02-18-
00252-CV, 2019 WL 490121, at *3 (Tex. App.—Fort Worth Feb. 7, 2019, no pet.)
(mem. op.); see also Guillory v. State, No. 09-19-00359-CR, 2021 WL 3518891, at *3
(Tex. App.—Beaumont Aug. 11, 2021, no pet.) (mem. op., not designated for
publication); Moreno v. State, 586 S.W.3d 472, 486 (Tex. App.—Dallas 2019), rev’d on
other grounds, 605 S.W.3d 475 (Tex. Crim. App. 2020).
17
c. Parental Abilities of the Individuals Seeking Custody
As a parent, Mother consistently showed poor judgment. For example, when
visiting the children in March 2019, Mother became very upset, yelled, and cursed to
the point that the children began crying. A supervisor had to calm Mother down and
end the visit. Rather than engage and reassure her children, she upset them. See In re
J.L.M., No. 01-16-00445-CV, 2016 WL 6754779, at *10 (Tex. App.—Houston [1st
Dist.] Nov. 15, 2016, no pet.) (mem. op.) (considering evidence that during supervised
visits with children, parent screamed and cursed at DFPS supervisor and police were
called); Liu v. Dep’t of Fam. & Protective Servs., 273 S.W.3d 785, 798 (Tex. App.—
Houston [1st Dist.] 2008, no pet.) (“During a few visits . . . , [the mother] was
disruptive, yelling and screaming at the supervisor or foster parents . . . .”).
In December 2019, after being told expressly not to give the children a cell
phone without checking with the foster parents first, Mother tried to sneak a cell
phone to the children during a visit. If Mother had succeeded, neither the
Department nor the foster parents would have been able to supervise the calls
between Mother and the children. See In re A.F., No. 04-20-00216-CV, 2020 WL
6928390, at *4 (Tex. App.—San Antonio Nov. 25, 2020, no pet.) (mem. op.) (“The
court also heard testimony from the CASA volunteer that [the mother had] snuck a
cell phone to [her daughter] at a visit, and then used it to send her daughter an
inappropriate text message.”); In re V.G., No. 04-08-00522-CV, 2009 WL 2767040,
at *8 (Tex. App.—San Antonio Aug. 31, 2009, no pet.) (mem. op.) (“[The parents]
18
secretly gave [their son] a cell phone during a visitation, which [the child’s counselor]
believed was done so the parents could talk to him and influence what he might say.
This surreptitious behavior by the parents further endangered [the child’s]
psychological condition.”), superseded by statute on other grounds, Tex. Fam. Code Ann.
§ 107.013(a), (a-1), as recognized by In re D.T., 625 S.W.3d 62, 70–73 (Tex. 2021); In re
H.H., No. 2-05-093-CV, 2006 WL 176858, at *4 (Tex. App.—Fort Worth Jan. 26,
2006, no pet.) (per curiam) (mem. op.) (sneaking cell phone to daughter so that
daughter could call father without foster parent’s knowledge).
Also in December 2019, Mother began to talk to the children about the case
and made “snide comments” about the caseworkers and Father, so Mother had to be
“redirected several times.” Mother was not using her visit to maintain her bonds with
the children but to seed discontent in the children with their caseworkers and Father.
Poisoning a child’s mind against a parent or caregiver is not in the child’s best interest.
See In re T.L.C., No. 01-17-00498-CV, 2018 WL 4139004, at *21 (Tex. App.—
Houston [1st Dist.] Aug. 30, 2018, pets. denied) (mem. op.); see also Allen v. Allen,
475 S.W.3d 453, 458 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“[P]ersistent
alienation of the other parent can be a guiding consideration in making possession
and access determinations.”); In re Marriage of Chandler, 914 S.W.2d 252, 254 (Tex.
App.—Amarillo 1996, no writ) (“[C]hanges which may injuriously affect the child’s
best interest” include, “among other things, . . . poisoning the child’s mind against a
parent . . . .”).
19
Then in April 2020, Ann (the third child who had originally been part of the
case) ran away from her placement. Although the Department and “law
enforcement” had asked Mother several times about Ann, Mother remained silent. In
the end, the Department found Ann with Mother in Mother’s apartment. Hiding Ann
was not the responsible choice. See In re A.A.H., Nos. 01-19-00612-CV, 01-19-00748-
CV, 2020 WL 1056941, at *16 (Tex. App.—Houston [1st Dist.] Mar. 5, 2020, pet.
denied) (mem. op.) (“Regarding parental abilities, Mother’s parental skills were
demonstrably lacking . . . . There was . . . evidence that Mother hid the children from
the Department . . . .”); In re R.L., Nos. 01-16-00851-CV, 01-16-00852-CV, 01-16-
00875-CV, 2017 WL 1496955, at *17 (Tex. App.—Houston [1st Dist.] Apr. 21, 2017,
no pet.) (mem. op.) (“[T]he trial court heard testimony that [the mother] is not
trustworthy and has engaged in certain dishonest behavior both before and during the
pendency of this case that has had a detrimental effect on the children.”); In re C.J.,
392 S.W.3d 763, 771 (Tex. App.—Dallas 2012, pet. denied) (hiding children from CPS
for almost five months was one of the reasons supporting termination of the father’s
parental rights).
Although the Department removed Mother’s children in January 2019, Mother
admitted that she waited for more than two years—until February 2021—to try to get
them back. Mataska had “concerns” that it took Mother so long to engage in services.
This lengthy indifference is inconsistent with the actions of a devoted parent. See In re
K.S.L., 538 S.W.3d 107, 115 (Tex. 2017) (stating that delay in determining where and
20
with whom a child lives inherently threatens the child’s best interest); In re M.K.,
No. 02-19-00459-CV, 2020 WL 1949629, at *6 (Tex. App.—Fort Worth Apr. 23,
2020, no pet.) (mem. op.) (identifying the father’s indifference toward the child as a
basis for endangering the child). Rather than work toward getting her children back,
Mother chose to use drugs. See In re R.S., No. 01-20-00126-CV, 2020 WL 4289978, at
*7 (Tex. App.—Houston [1st Dist.] July 28, 2020, no pet.) (mem. op.) (“The father’s
use of methamphetamine after [the] removal is especially significant because [his]
decision to use drugs when his parental rights are in jeopardy evidences [a] conscious
indifference [about] the parent–child relationship . . . or an inability or unwillingness
to prioritize the child’s wellbeing ahead of drugs.”); In re E.R.W., 528 S.W.3d 251,
264–65 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A parent’s decision to
engage in illegal drug use during the pendency of a termination suit, when the parent
is at risk of losing a child, may support a finding that the parent engaged in conduct
that endangered the child’s physical or emotional well-being.”).
This factor supports the trial court’s finding that termination was in the
children’s best interest.
d. Programs Available to Assist These Individuals to Promote the
Children’s Best Interest
The children were receiving counseling, and continuing their counseling was
important. Coats said that Charles was “an ongoing process,” and Mataska said that
Charles had a long way to go. According to Mataska, Mary had made much progress:
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“[F]rom what I read from the previous CASA [worker], . . . there were a lot of
tantrums, breaking items, not minding, just being a little -- being a terror,” but from
Mataska’s own “experiences with [Mary, she found her to be] a sweet and bubbly little
girl.” Mother was aware that the children were undergoing counseling because both
were prone to violence, and she asserted that if they were placed with her, she would
continue the children’s counseling and manage their medications.
Mother herself was diagnosed with anxiety, depression, and methamphetamine
abuse. Mother said that she had been on medications for about six months and that
she had been attending sessions to address her substance-abuse problem. Mother was
getting her medications through her counseling services. Coats testified, however,
that at times Mother was not compliant about taking her medications.
Even when Mother accessed programs in the past, the evidence suggested that
her conduct remained the same. Before this case, Mother had a previous CPS case in
Arizona and two previous CPS cases in Texas. Regarding Mother’s completing an
anger-management class on June 1, 2021, Prince-Cowan explained that Mother had
been asked to do a second anger-management class because “[s]he would become
very hostile, . . . make threatening comments regarding people, and lose her temper in
several different manners.” For example, Mother once threatened to hunt down
Father and his paramour and beat or kill them. Mother also threatened to give Coats
a beating and told her that she would burn in hell. Based on comments like those,
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Prince-Cowan did not believe that Mother had learned anything from any prior anger-
management classes.
When it came to services, Prince-Cowan testified that Mother would “check
the boxes.” By this, Prince-Cowan said that Mother would complete services so that
she could check the box showing that she had complied, but despite completing the
services and checking the box, Mother could not show that she had learned anything.
As an example, Prince-Cowan explained that the reason that Father had
managed to get a monitored return was because “he had checked the boxes.”
According to Prince-Cowan, she personally was against the monitored return to
Father because despite his checking the boxes, she did not believe that “he had made
an honest, true lifestyle change.” And ultimately, she turned out to be right about
Father. Checking the boxes and learning new behaviors were not necessarily the same
thing, and Prince-Cowan thought that Mother, like Father, could check the boxes but
would not change her behavior. Therefore, Prince-Cowan testified that it was in the
best interest of the children to terminate Mother’s parental rights.
If Mother’s parental rights were terminated, whether she continued her
counseling and medications would—from the perspective of the children’s safety and
security—become moot. But if Mother’s rights were not terminated, the evidence did
not show whether she planned on continuing her counseling and medications.
Whether Mother saw her counseling and medications as a stopgap to get her children
back or as a continuing feature of her life was not clear.
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Even with programs available to help Mother and the children, Mother’s
willingness to access the programs and ability to follow through with them appeared
questionable. A reasonable factfinder could doubt her dependability on both counts.
See In re H.B.C., 482 S.W.3d 696, 699 (Tex. App.—Texarkana 2016, no pet.)
(“[Grandmother] opined that [Mother] was simply incapable of dependably assuming
the responsibility of being a parent.”). In contrast, the Department had placed the
children in counseling and had persisted in providing counseling for them.
This factor favors the trial court’s best-interest finding.
e. Plans for the Children by These Individuals or by the Agency
Seeking Custody
If the children were placed with Mother, she said that her mother
(Grandmother) and sister (Aunt) would help her with childcare. Both Grandmother
and Aunt, however, had CPS histories. Mother acknowledged that Grandmother was
a recovering alcoholic but maintained that Grandmother’s alcoholism dated from the
1990s and that she no longer used drugs or alcohol. Aunt had a history of drug use
and had lost one of her children to CPS conservatorship.
At some point in 2020, Mother had a boyfriend, John Doe.10 He too engaged
in domestic violence against Mother, but she admitted that she wanted to drop the
charges against him, and she signed an affidavit of nonprosecution on
10
We use an alias for Mother’s boyfriend.
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January 11, 2021. Doe was also a drug addict and convicted felon. Mother and Doe
had used methamphetamine together, and Doe kept guns in the house.
Mother maintained that she had broken up with Doe in May 2021 because he
did not support her decision to try to get her children back. But the caseworkers
questioned Mother’s testimony. Prince-Cowan thought that Mother’s relationship
with Doe lasted into June 2021. Coats said that the first time that she had heard of a
breakup between Mother and Doe was while Mother was testifying; Coats expressed
doubt about whether they had broken up.
As for housing, Mother had a month-to-month lease on a three-bedroom, one
bathroom house. Prince-Cowan said that the house itself was safe and stable but
denied that Mother could provide a safe environment because of the concerns about
domestic violence and drug use. Assuming that Mother was living alone in the house
and was not using drugs, Prince-Cowan agreed that the home environment would be
safe.
Mother’s admitted plans included Grandmother (a recovering alcoholic with a
CPS history) and Aunt (known to have drug issues and a CPS history). Thus,
assuming that Doe truly was out of Mother’s life and that Mother’s next boyfriend did
not engage in domestic violence, a factfinder could nevertheless reasonably conclude
that Mother intended to expose the children to an inherently suspect environment.
See In re M.D.M., 579 S.W.3d 744, 773 (Tex. App.—Houston [1st Dist.] 2019, no pet.)
(“[T]he Department . . . presented evidence that the children had been exposed to an
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endangering environment when they lived with [their] [m]other, that [both fathers]
knew about this dangerous environment, and that they provided no assistance in
improving the children’s living situation.”).
Despite the children’s behavioral issues, Prince-Cowan said that they were
capable of being adopted. Coats said that the children were not currently in an
adoptive home because of their behavior and because, at that time, there were not
many adoptive homes. Coats averred that the children might not be adopted in the
near future but was persuaded that, in time, they would be.
This factor supports the trial court’s best-interest finding.
f. Stability of the Home or Proposed Placement
Since January 2019, not counting Mother’s two stays in jail, she had lived in
four or five locations. Mother was in jail about two months in 2019 for domestic
violence and was in jail again for about three weeks in January 2020 for possession of
a controlled substance.
From a stability standpoint, the children did not fare much better. While in the
Department’s care, they had been in five placements.
“[C]hildren need permanency and stability.” In re G.V., III, 543 S.W.3d 342,
350 (Tex. App.—Fort Worth 2017, pet. denied). A child’s need for permanence
through the establishment of a stable, permanent home is a paramount consideration
in the best-interest determination. E.R.W., 528 S.W.3d at 267.
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Mother testified that since 2019, she had worked only the five months
preceding trial. Before that, she had not worked since 2017. Mother’s lease was
month to month. Although gaining employment and having a lease were steps in the
right direction, in the context of a case that had been going on about thirty months,
they were weak evidence of stability. Evidence of improved conduct, especially of
short duration, does not negate the probative value of or absolve a parent from a long
history of irresponsible choices. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009); In re
J.F.-G., 612 S.W.3d 373, 384 (Tex. App.—Waco 2020) (mem. op.), aff’d, 627 S.W.3d
304 (Tex. 2021). Rehabilitation does not negate past conduct such that a factfinder
cannot consider it. In re J.F.-G., 627 S.W.3d 304, 317 (Tex. 2021).
If Mother’s parental rights were terminated, whether she continued to have
employment and a stable home would not be concerns that affected the children’s
safety and stability. And the Department, instead of keeping the children in
conservatorship limbo, could focus on finding an adoptive family—a “forever”
family—for the children, a goal that is not possible so long as Mother’s parental rights
remain intact. See In re J.W.T., 872 S.W.2d 189, 198 n.26 (Tex. 1994) (op. on reh’g);
In re D.D., No. 02-17-00368-CV, 2018 WL 1630708, at *11 (Tex. App.—Fort Worth
Apr. 5, 2018, no pet.) (per curiam) (mem. op.) (“Mother and Father wanted . . . to . . .
leave [their child] in the managing conservatorship of the [Department],” but “that
decision would have left [their child] with more uncertainty and instability because he
could be moved around from foster home to foster home until he aged out of the
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system without having ‘a chance to heal’ or ‘the safety of a forever family.’”); In re
D.G., No. 06-15-00025-CV, 2015 WL 6520251, at *5 (Tex. App.—Texarkana Oct. 28,
2015, pet. denied) (mem. op.) (“[The CASA program director] opined that
termination would be in the best interest of the children since they would be in a
‘forever’ family if adopted and have permanence, stability, safety, guidance,
consistency, and positive role models.”). Termination of parental rights is a
prerequisite to a valid adoption. J.W.T., 872 S.W.2d at 198 n.26. The Department
was confident that it could find a “forever” home for the children.
This factor supports the trial court’s finding that termination was in the
children’s best interest.
g. Parent’s Acts or Omissions that May Indicate that the Existing
Parent–Child Relationship is Not a Proper One and Parent’s
Excuse, if Any, for the Acts or Omissions
Mother did not dispute her history of drug abuse and domestic violence. She
maintained that she had been clean for five months and that she had completed the
anger-management class on June 1, 2021. The trial court’s horizon, however, was not
limited to the five months before trial. The Department had removed the children
over two-and-one-half years earlier.
Mataska addressed Mother’s recent improvement with the overall picture.
Initially, based on what Mataska had personally observed, she expressed reservations:
“[W]ith only being on the case for three and a half months, [I] do not believe that I
can [say] what is in their best interest. . . . I do not believe personally that I can state
28
[that] just after three and a half months.” She added, “Since I personally have been
on the case, I’ve seen [Mother] sober and on her medication and she’s never yelled or
cussed at me.” Mataska’s opinion, based on what she had seen personally, was that
termination was not necessary, but she acknowledged that CASA had “to look at the
big picture,” and CASA—the organization—recommended termination.
Later, Mataska gave her opinion when not limiting it to what she had
personally seen:
Q[.] While you may not have seen anything personally in the last
five months, would you agree with me that this is not a five-month case?
A[.] Correct.
Q[.] So not just looking at what you’ve looked at for five months
personally and heard her say that she’s not doing drugs and she’s tested
negative --
A[.] Correct.
Q[.] -- but when you looked at everything, because it is not a five-
month case, do you still believe it’s not in the children’s best interest to
terminate?
A[.] Looking at everything, I do believe it is in the best interest to
terminate.
When determining who will raise a child and where the child will live, undue
delays and needless uncertainty inherently threaten the child’s best interest. K.S.L.,
538 S.W.3d at 115. Mother needlessly complicated the conservatorship issue and
unduly delayed the case by waiting so long to work services.
These factors support the trial court’s best-interest finding.
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h. Analysis and Holding
The Department removed the children from an unstable environment. For
over two years after the children’s removal, Mother did nothing to address the
conduct that had led to their removal. Despite Mother’s belated efforts, many
questions and much doubt persisted. She had taken domestic-violence and anger-
management classes before, but the violence persisted. She had been clean before,
but she relapsed.
For two years while Mother’s children were in foster care, she used drugs.
After her relationship with Father ended, she started a new relationship with a man
who was a drug addict and felon and who engaged in domestic violence. Mother
engaged in all of this conduct while knowing that her parental rights were at risk. See
E.R.W., 528 S.W.3d at 264–65.
We hold that the evidence is legally and factually sufficient to show that
terminating Mother’s parental rights was in the best interest of Charles and Mary. See
J.F.C., 96 S.W.3d at 265–66 (stating that to be legally sufficient, when viewing the
evidence in the light most favorable to the finding, the court must conclude that the
evidence was such that a factfinder could reasonably form a firm belief or conviction
about the truth of the Department’s allegations); id. at 266 (citing C.H., 89 S.W.3d at
25) (stating that to be factually sufficient, based on the entire record, the court must
conclude that a factfinder could reasonably form a firm belief or conviction about the
truth of the Department’s allegations); In re R.W., 627 S.W.3d 501, 506, 516–18 (Tex.
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App.—Texarkana 2021, no pet.) (overruling issue contending that evidence was
legally and factually insufficient to support best-interest finding).
We overrule Mother’s second issue.
IV. CONCLUSION
Having overruled both of Mother’s issues, we affirm the trial court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: January 13, 2022
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