in the Interest of T.N.R., a Child v. Texas Department of Family and Protective Services ( 2022 )

Affirmed and Memorandum Majority and Concurring Opinions filed
February 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00473-CV
IN THE INTEREST OF T.N.R., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2018-03359J
MEMORANDUM MAJORITY OPINION
Appellant S.R. (Mother) appeals the trial court’s final order terminating her
parental rights to T.N.R. (the Child) and appointing the Department of Family and
Protective Services as sole managing conservator of the Child. Mother contends
that the evidence is legally and factually insufficient to support the trial court’s
predicate findings for termination, the evidence is factually insufficient to support
the best-interest finding, and the trial court abused its discretion by not appointing
Mother as a managing or possessory conservator of the Child. We affirm.
I. BACKGROUND
A. History with the Department and Removal
Mother has seven children. The oldest was born in 2005. The Child is the
youngest and was born in April 2017. The Department has been involved with
Mother’s children since 2008 when there were allegations of neglectful supervision
by the parents. One of Mother’s children was hit by a car.
In late 2009, Mother’s then-living children were taken into the Department’s
custody due to physical abuse and neglect. The children and their clothing were
dirty and smelled as if they were not bathed regularly. One child had dried feces
on both his legs down to his ankles and on his shoes. Another child’s hair was
matted to her head. After Mother completed services, the children were returned to
her care in 2010.
In 2016, the Department again removed the children from the parents’ care
following a report of domestic violence against Mother by Father. The Department
sought and obtained sole managing conservatorship of the children. The parents
were named possessory conservators and were allowed only supervised visitation
with the children or by agreement with the Department.
In early June 2018, Mother’s two oldest children were returned to her home
based on progress she had made in the case. But later that month, a therapist and a
caseworker each visited the home and found Father with the children. The
Department removed the Child and her siblings from the home. The Child was
removed on June 14, 2018, and she has been in the same foster placement since
then.
2
The Department sought termination of Mother’s and Father’s parental rights
to the Child. The final hearing commenced on May 23, 2019, and was continued
on December 14, 2020, January 21, 2021, and August 9, 2021.
B. Drugs
Mother testified that she has never had a drug addition, but her “drug of
choice was marijuana.” She testified, “I never used cocaine a day in my life.”
Nonetheless, Mother testified that she attended alcoholic anonymous, cocaine
anonymous, and narcotic anonymous every day, Monday through Friday, “Because
that’s something that I like to do, and it’s kind of fun to realize what’s going on
with you.” She denied admitting to a caseworker that she had used cocaine.
The Department adduced evidence that Mother admitted to a caseworker
that she used cocaine with Father since the age of twenty-two, or 2008. The court
admitted evidence that Mother took monthly drug tests, and she tested positive for
cocaine in December 2016, July 2018, October 2018, March 2019, July 2020, and
May 2021. Mother denied testing positive for cocaine. She testified that she had
her own drug tests performed: “Every time they drug test me, I go pay for my owns
at the same place y’all take me to.” She attributed her positive drug tests to eating
poppy seeds: “I love Burger King and you can be tested positive eating them
poppy seeds.”
A caseworker testified that Mother has had periods of testing negative for
drugs, but Mother had tested positive for cocaine at least five times between June
2018 and January 2021. The caseworker acknowledged that on at least one
occasion Mother tested positive for cocaine and then negative a few weeks later.
3
In June 2018, during the home visit that prompted the Child’s removal, a
caseworker observed marijuana on a kitchen counter not far from where the
children were sitting.
C. Violence
The Department had made “reason to believe” findings regarding Father’s
physical abuse of the children in 2009 when it was reported that Father beat the
children with his fist regularly and one child had been injured after Father dragged
her. The Department had made multiple “reason to believe” findings regarding
Father’s sexual abuse of children who were not Mother’s children. One of those
children disclosed that Father “touched her inappropriately.” Another child
disclosed that Father “asked him for oral sex” and “touched him inappropriately.”
Several of Mother’s children were in therapy for “sexual acting-out behavior.”
Mother testified that she was not aware that Father sexually abused any
children “because he never sexually abused [her] children; and he never been
charged for it.” She explained, “I don’t know nothing about that. That’s another
child. That wasn’t none of my children.” She testified later, however, that she was
aware since 2016 that there had been allegations of sexual abuse against Father. A
caseworker testified that Mother told the caseworker that Father was a “sexual
offender.”
Mother testified that the first and last time Father assaulted her physically
was in 2011. She later testified that Father also assaulted her in 2015. The
Department adduced evidence that Father had been charged with assaulting Mother
and interfering with an emergency call in 2011, but the charges were dismissed.
He was convicted of a 2015 assault against Mother.
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In 2016, Mother signed a safety plan stating that Father would move out of
the home and not have contact with the children. Mother testified that in 2016
“they told me he had to leave in order for the kids to stay” due to “abuse and
domestic violence.” Mother testified that she told the Department throughout the
2016 case that she did not have any relationship with Father. Yet, Mother and
Father conceived the Child, who was born in April 2017.
A caseworker testified by affidavit that she spoke with Mother on numerous
occasions, including on June 9, 2018, about Father’s whereabouts, and Mother
“continually reported that she had no contact with him and had no idea where he
was.” Mother denied telling a caseworker that she did not have contact with Father
in 2018.
On June 11, 2018, when a therapist for several of the children and a
caseworker visited Mother’s home, they found Father in the home.1 It appeared to
the therapist as if Father had spent the night at the house. Father told the
caseworker that he knew he should not have been there, but he “wanted to help
[Mother] out.” When the therapist visited the home, Mother and Father were there
together. When the caseworker visited the home, Father was alone with the
children. A caseworker testified by affidavit that Mother initially denied knowing
that Father was at the home but then “changed her story,” stating that he was there
to supervise the children. Mother testified that Father was found “in my house
with the children.” She testified that Father was taking the children to a babysitter
who did not have a vehicle. Mother testified that she did not become aware until
after the children were removed from her care in 2018 that Father was not
supposed to be around her children.
1
At trial, the therapist recalled there was a man in the home but could not recall if the
man was Father; the therapist “suspected it was probably” Father. Mother testified that the
therapist found Father in the home with the children.
5
Mother denied that Father threatened or assaulted her in June 2018. But the
trial court admitted into evidence Mother’s affidavit in support of a protective
order that she signed on June 27, 2018, after the Child’s removal on June 14, 2018.
In the affidavit, Mother described an incident on June 9 when Father entered her
home and said he “wanted to see our children even though there’s a pending CPS
case due to [Father’s] violent behavior towards me.” She described an incident on
June 13 when Father entered her home through a window, pushed her, grabbed her,
and jerked her repeatedly. She described an incident on June 22 when Father
threw a can of beer at Mother’s ankle and cut her. She testified further:
He has assaulted me numerous times during our relationship. He has
pushed me, pulled my hair, scratched me, hit me with his hand,
threatened me with a knife, stalked me, choked me, thrown objects at
me, threatened to hurt and to kill me, threatened to take our children
from me, and being [sic] violent with me in front of my children.
D. Service Plan
A caseworker testified that Mother had completed all of her services in this
case and in the two prior cases with the Department. But the caseworker was
concerned because Mother continued to test positive for cocaine after completing
substance abuse treatment.
E. Visits, Placement, and Plans
The caseworker testified that Mother had weekly visits with the Child for at
least a year. The caseworker and child advocate each testified that Mother’s visits
with the Child have been appropriate. The advocate testified that Mother and the
Child seemed bonded to each other. The caseworker testified that the Child refers
to Mother as “mama.”
Since the Child was removed from Mother in June 2018, the Child has lived
with a foster family in an adoptive placement. The caseworker testified that the
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Child has no specialized needs and is developmentally on target. The caseworker
and child advocate testified similarly that the Child has a good relationship with
the foster parents, and she is well-adjusted to that environment and taken care of.
The foster parents read to the Child, and she participates in educational activities
and travel. She is bonded with them and a foster brother. The Child calls her
foster parents “mother” and “father.” The foster parents have supported the
Child’s visits with her biological siblings, and the foster parents would continue to
encourage those relationships. The foster parents want to adopt the Child, which
the Department supports.
The caseworker testified that the children had also been in contact with
Father. The children said Mother gave them Father’s contact information.
F. Termination
Following the trial, the court signed a decree terminating Mother’s and
Father’s rights. The court found, among other statutory bases for termination, that
Mother engaged in conduct or knowingly placed the Child with persons who
engaged in conduct which endangers the physical or emotional well-being of the
Child pursuant to Section 161.001(b)(1)(E) of the Family Code. The court found
that termination was in the Child’s best interest. The court appointed the
Department as the sole managing conservator of the Child. Mother appealed;
Father did not.
II. STANDARD OF REVIEW
A court may terminate the parent-child relationship if the court finds by
clear and convincing evidence that (1) the parent has engaged in at least one
statutory predicate act and (2) termination is in the best interest of the child. See In
re N.G., 577 S.W.3d 230, 230 (Tex. 2019); In re L.C.L., 599 S.W.3d 79, 83 (Tex.
7
App.—Houston [14th Dist.] 2020) (en banc), pet denied, 629 S.W.3d 909 (Tex.
2021); see also Tex. Fam. Code § 161.001(b).
Termination of the parent-child relationship is a drastic remedy and is of
such weight and gravity that due process requires the state to justify termination by
clear and convincing evidence. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002); see also
In re L.G.R., 498 S.W.3d 195, 201 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied). Clear and convincing evidence is the measure or degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established. Tex. Fam. Code § 101.007. This
heightened burden of proof results in a heightened standard of review when
evaluating the sufficiency of the evidence. In re L.G.R., 498 S.W.3d at 202.
Under a legal sufficiency review, we look at all the evidence in the light
most favorable to the finding to determine whether a reasonable factfinder could
have formed a firm belief or conviction that the finding was true. In re J.F.C., 96
S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so. Id. We disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible, but we do not disregard undisputed facts. Id.Evidence is factually insufficient 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.” Id. We assume that the factfinder resolved disputed
evidence in favor of its findings if a reasonable factfinder could do so, but we do
not disregard disputed evidence. See In re Commitment of Stoddard, 619 S.W.3d
665, 674 (Tex. 2020).
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III. SECTION 161.001(B)(1)(E) PREDICATE FINDING
In her first four issues, Mother challenges the sufficiency of the evidence to
support the trial court’s four predicate findings. Because sufficient evidence is
needed for only one predicate finding to affirm the trial court’s judgment, and the
Section 161.001(b)(1)(E) finding is dispositive, we address it first. See In re P.W.,
579 S.W.3d 713, 728 (Tex. App.—Houston [14th Dist.] 2019, no pet.); In re
J.J.W., No. 14-18-00985-CV, 2019 WL 1827591, at *8 (Tex. App.—Houston
[14th Dist.] Apr. 25, 2019, pet. denied) (mem. op.).
Under subsection (E), the relevant inquiry is whether endangerment of the
child’s physical and emotional well-being was the direct result of the parent's
conduct, including acts, omissions, or failures to act. In re Z.J.B., No. 14-18-
00759-CV, 2019 WL 347474, at *4 (Tex. App.—Houston [14th Dist.] Jan. 29,
2019, pet. denied) (mem. op.); see also In re S.M.L., 171 S.W.3d 472, 477 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). A child is endangered when the
environment creates a potential for danger of which the parent is aware but
disregards. In re S.M.L., 171 S.W.3d at 477. Termination under subsection (E)
must be based on more than a single act or omission—the evidence must
demonstrate a voluntary, deliberate, and conscious course of conduct by the parent.
In re C.A.B., 289 S.W.3d 874, 883 (Tex. App.—Houston [14th Dist.] 2009, no
pet.).
Endangering conduct under subsection (E) need not be directed at the child,
nor must the child actually suffer injury. In re J.F.-G., 627 S.W.3d 304, 312 (Tex.
2021). “Rather, ‘endanger’ means to expose to loss or injury; to jeopardize.” Id.(quoting Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).
A parent may endanger her children by accepting endangering conduct of other
people. In re J.J.W., 2019 WL 1827591, at *7.
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As here, a parent’s abusing drugs and exposing a child to domestic violence
can present an endangering course of conduct sufficient under subsection (E). See,
e.g., id. at *6–7 (sufficient evidence under subsection (E) when mother had history
of drug abuse and exposed children to domestic violence by failing to maintain
separation from children’s father who physically abused children). Although there
is no evidence that Mother tested positive for cocaine between the time of the
Child’s birth and removal from Mother’s care, the court heard evidence that
Mother tested positive for cocaine while pregnant with the Child, tested positive
shortly after the Child’s removal, and continued to test positive throughout the
pending case. The trial court heard evidence that Mother knew Father had a
history of domestic violence and had been violent with her in front of her children,
was a “sexual offender,” and was not supposed to be around her children.
Nonetheless, Mother continued to expose the Child to Father, including while
unsupervised.2
Reviewing all the evidence in the light most favorable to the trial court’s
finding under subsection (E), a reasonable factfinder could have formed a firm
belief or conviction as to the truth of the finding. See id. at *7. The trial court was
free to disregard Mother’s self-serving testimony. Id. Considering the entire
record, the disputed evidence that a reasonable factfinder could not have credited
in favor of the endangerment finding is not so significant that the trial court could
2
Appellant contends that there is no definitive statement in the record that the Child was
present on the single day in June that Father was found alone with “the children” in Mother’s
home. The trial court, as fact finder, could have made the reasonable inference that the Child
was one of “the children” present based on (1) the removal affidavit’s reference to “the children”
being in the home, while the affidavit used different language (i.e., “the boys”) to refer to the two
older children who had been returned to Mother’s care; (2) undisputed evidence that the Child
lived in Mother’s home in June 2018; (3) Mother’s statement to a caseworker that Father was in
the home to supervise “the kids” while Mother was at work; (4) Mother’s testimony that Father
was in her home “with the children” and was “taking them to the babysitter”; and (5) Mother’s
testimony at trial that she was unaware Father was not supposed to be around her children.
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not reasonably have formed a firm belief or conviction as to the truth of the
finding. Id.
The evidence is legally and factually sufficient to support the trial court’s
finding under subsection (E). Mother’s second issue is overruled, and we do not
reach Mother’s first, third, and fourth issues challenging the sufficiency of the
evidence to support other predicate grounds for termination. See In re P.W., 579
S.W.3d at 728; In re J.J.W., 2019 WL 1827591, at *8; see also Tex. R. App. P.
47.1.
IV. BEST-INTEREST FINDING
In her fifth issue, Mother contends that the evidence is factually insufficient
to support a finding that termination of her parental rights was in the Child’s best
interest.
The purpose of the State’s intervention in the parent-child relationship is to
protect the best interest of the child, not to punish parents for their conduct. In re
A.V., 113 S.W.3d 355, 361 (Tex. 2003). There is a strong presumption that the
best interest of a child is served by preserving the parent-child relationship. In re
B.J.C., 495 S.W.3d 29, 35 (Tex. App.—Houston [14th Dist.] 2016, no pet.). But
there is also a presumption that the permanent placement of a child in a safe
environment is in a child’s best interest. Tex. Fam. Code § 263.307(a); see also In
re B.J.C., 495 S.W.3d at 39 (noting that a child’s need for permanence through the
establishment of a stable, permanent home is the paramount consideration in a
best-interest determination). The best-interest analysis is child-centered and
focuses on the child’s well-being, safety, and development. In re A.C., 560 S.W.3d
624, 631 (Tex. 2018).
11
In assessing whether the evidence is sufficient to prove that termination is in
the best interest of a child, we may consider the non-exclusive factors discussed in
Holley v. Adams, 544 S.W.2d 367, 371–72 (1976). See In re E.C.R., 402 S.W.3d
239, 249 & n.9 (Tex. 2013). These factors include (1) the child’s desires; (2) the
child’s present and future emotional and physical needs; (3) any present or future
emotional and physical danger to the child; (4) the parental abilities of the
individuals seeking custody; (5) the programs available to assist the individuals
seeking custody to promote the child’s best interest; (6) the plans for the child by
the individuals or agency seeking custody; (7) the stability of the home or proposed
placement; (8) the parent’s acts or omissions which may indicate that the existing
parent-child relationship is improper; and (9) any excuse for the parent’s acts or
omissions. Id. (citing Holley, 544 S.W.2d at 371–72).
We may also consider the statutory factors in Section 263.307 of the Family
Code, including (1) the child’s age; (2) the frequency and nature of out-of-home
placements; (3) any history of substance abuse by the child’s family or others who
have access to the child’s home; (4) the willingness and ability of parents to accept
counseling services and to cooperate with the state’s supervision; and (5) whether
the parent has provided the child and other children under the parent’s care with a
safe physical home environment and protection from repeated exposure to
violence, even though the violence may not be directed at the child. See In re
A.R.M., No 14-13-01039-CV, 2014 WL 1390285, at *9 (Tex. App.—Houston
[14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (citing Tex. Fam. Code
§ 263.307(b)).
A. Child’s Age, Desires, Needs, Placement, and Plan
When there is no direct evidence of the child’s desires and the child is too
young to express desires, the factfinder may consider that the child has bonded
12
with a foster family, is well cared for by them, and has spent minimal time with a
parent. See In re A.M.W., No. 14-20-00742-CV, 2021 WL 1567762, at *5, (Tex.
App.—Houston [14th Dist.] Apr. 22, 2021, pet. denied) (mem. op.); In re J.J.W.,
2019 WL 1827591, at *8.
Mother attended weekly visits with the Child, and the visits were
“appropriate.” But, by the time of the final hearing, the Child had been living with
her foster family for more time than with Mother. Although the Child referred to
Mother as “mama,” the Child was bonded with her foster family, including a foster
brother, and the Child referred to her foster parents as “mother” and “father.” The
Child was in a safe environment, and the foster family was taking care of her
needs. The foster family was willing and able to adopt the Child. See In re C.H.,
89 S.W.3d 17, 28 (Tex. 2002) (“Evidence about placement plans and adoption are,
of course, relevant to best interest.”).
These factors weigh in favor of the trial court’s finding that termination was
in the Child’s best interest.
B. Parent’s Acts and Omissions, Excuses, Substance Abuse, and Domestic
Violence
“Continued drug use not only may be considered as establishing an
endangering course of conduct, but also that termination is in the [Child]’s best
interest.” In re J.J.W., 2019 WL 1827591, at *9. “A parent’s unwillingness to
admit she has a substance abuse problem suggests she will continue to abuse drugs
and therefore continue to endanger her children.” In re Z.Q.N., No. 14-17-00434-
CV, 2019 WL 758377, at *8 (Tex. App.—Houston [14th Dist.] Feb. 21, 2019, pet.
denied) (mem. op.).
Mother told a caseworker that she used cocaine. She tested positive for
cocaine when she was pregnant with the Child, while the Child was in foster care,
13
and throughout the trial. She claimed to have never used cocaine a day in her life.
She suggested that she tested positive for cocaine multiple times over the course of
more than four years because she ate poppy seeds at Burger King. Although she
suggested that the Department’s drug tests were incorrect and that she had taken
her own drug tests, she offered no evidence to dispute the validity of the
Department’s drug tests. Although Mother completed substance abuse courses and
many of the services required by her service plan, the trial court could have found
that Mother continued to use cocaine and that her unwillingness to admit her
substance abuse problem weighed in favor of a finding that termination was in the
Child’s best interest. See In re J.J.W., 2019 WL 1827591, at *9; In re Z.Q.N.,
2019 WL 758377, at *8, *10.
Even more concerning than Mother’s persistent drug use is her attachment to
Father. The trial court heard evidence that Father had perpetrated physical and
sexual violence against other children and had assaulted Mother on multiple
occasions in front of the children. Yet, Mother continued to associate with Father
and gave him unsupervised access to the Child. She testified that she was unaware
Father was not supposed to be around the Child. But when initially confronted
with information about Father being in her home with the Child, Mother denied he
was there, then changed her story. And the trial court heard evidence that Mother
repeatedly told the Department around this time frame that Mother had no contact
with Father. From these deceptions and Mother’s contradictory testimony at trial,
the court could have discounted evidence that Mother had obtained a protective
order, inferred that Mother was unwilling to accept the seriousness of Father’s
violence in endangering the Child’s physical and emotional well-being, and
inferred that Mother was unwilling to effect positive change for the Child’s safety.
See In re J.J.W., 2019 WL 1827591, at *9–10 (sufficient evidence to support best-
14
interest finding, considering the mother’s drug use, failure to protect children from
the father, and her continued contact with the father despite his domestic violence
against the mother); see also In re T.E.C., No. 04-20-00351-CV, 2021 WL 41150,
at *9 (Tex. App.—San Antonio Jan. 6, 2021, pet. denied) (mem. op.) (sufficient
evidence to support best-interest finding, considering the mother’s denial of any
domestic violence and her refusal or inability to protect herself and the children
from the father’s violence, along with her failure to make sufficient changes in her
own behavior).
These factors weigh in favor of the trial court’s finding that termination was
in the Child’s best interest
C. Sufficient Evidence
Mother and the Child’s bond is an important consideration, but it cannot
override or outweigh evidence of danger to the Child. In re A.J.A.R., No. 14-20-
00084-CV, 2020 WL 4260343, at *6 (Tex. App.—Houston [14th Dist.] July 24,
2020, pet. denied) (mem. op.). Considering the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the best-
interest finding is not so significant that the trial court could not reasonably have
formed a firm belief or conviction as to the truth of the best-interest finding.
Mother’s fifth issue is overruled.
V. CONSERVATOR
In her sixth issue, Mother contends that the trial court abused its discretion
by appointing the Department as the Child’s sole managing conservator and not
appointing Mother as a managing or possessory conservator.
A trial court’s conservatorship decision is subject to review for an abuse of
discretion and may be reversed only if the decision is arbitrary and unreasonable.
15
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). We consider whether the trial court
had sufficient information upon which to exercise its discretion and whether the
trial court erred in the application of its discretion. In re M.P., 618 S.W.3d 88, 109
(Tex. App.—Houston [14th Dist.] 2020, pet. filed).
Appellant relies on the statutory presumptions, and cases applying the
statutes, for parents to be appointed as managing and possessory conservators
unless the trial court finds that the appointment would not be in a child’s best
interest. See Tex. Fam. Code §§ 151.131, 151.191. However, a trial court need
not make any such finding following a termination of the parent’s rights because
the former parent is no longer a “parent” following the termination. See Z.A.R. v.
Tex. Dep’t of Family and Protective Servs., No. 14-20-00511-CV, 2020 WL
7866800, at *15 (Tex. App.—Houston [14th Dist.] Dec. 31, 2020, pet. denied)
(mem. op.).
Under Section 161.207(a) of the Family Code, following a termination of all
parents’ rights, a court “shall appoint a suitable, competent adult, the Department
of Family and Protective Services, or a licensed child-placing agency as managing
conservator of the child.” Tex. Fam. Code § 161.207. The trial court’s
appointment of the Department as the sole managing conservator of a child is
considered a “consequence of the termination” pursuant to Section 161.207. In re
V.A., 598 S.W.3d 317, 334 (Tex. App.—Houston [14th Dist.] 2020, pet. denied);
see also In re D.N.C., 252 S.W.3d 317, 319 (Tex. 2008) (per curiam).
Because the trial court terminated the parents’ rights to the Child, and we
affirm that decision, we cannot say the trial court’s decision to appoint the
Department—an agency statutorily identified as an eligible managing
conservator—instead of Mother was arbitrary or unreasonable. See id.; see also In
re M.P., 618 S.W.3d at 109–10.
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Mother’s sixth issue is overruled.
VI. CONCLUSION
Having overruled Mother’s issues necessary to the disposition of the appeal,
we affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Spain, and Hassan. (Spain, J., concurring).
17