in the Interest of A.R. Jr. ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00328-CV
__________________
IN THE INTEREST OF A.R. JR.
__________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 21-09-12252-CV
__________________________________________________________________
MEMORANDUM OPINION
After a bench trial, Father appeals an order terminating his parental rights to
his one-year-old son, A.R. Jr. (A.R.)1 The order also terminated the parental rights
of A.R.’s mother (Mother). 2 We affirm.
1
To protect the identity of the child, we use pseudonyms to refer to the child
and his parents. See Tex. R. App. P. 9.8(b)(2).
2
In this case, Mother executed an Affidavit of Voluntary Relinquishment of
Parental Rights to the Department of Family and Protective Services, and she is not
a party to this appeal. We discuss Mother only as necessary for context.
1
Background
On September 3, 2021, the Department of Family and Protective Services (the
Department) filed an Original Petition for Protection of a Child, For
Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship. The petition named A.R. as the child of the suit and Mother and Father
as A.R.’s parents. When the petition was filed, A.R. was a month old.
The petition was supported by an affidavit from a Child Protective Services
(CPS) worker and representative of the Department. The affidavit stated that, on
August 9, 2021, the Department received a referral for neglectful supervision of A.R.
by Mother and Father. According to the affidavit, the report stated that Mother and
Father had previously had parental rights terminated, Father had a history of using
methamphetamine, and Mother had Post Traumatic Stress Disorder (PTSD) and
other mental health diagnoses and was not taking her medication.
According to the affidavit, the Department representative arrived at Mother
and Father’s residence on August 9, 2021, and Mother exited the residence with an
“aggressive” demeanor. When the representative explained to Mother he was with
CPS and needed to speak with her about a case that was called in, Mother responded
that she wanted to know “who is calling in these cases[,]” and she wanted to know
how she “is getting a case if the baby is still currently in the NICU.” The affidavit
2
stated that Father then exited the residence and ordered the representative to leave
the premises.
Once the representative arrived at Memorial Hermann Hospital in The
Woodlands, a nurse informed the representative that A.R. was born at twenty-seven
weeks and was expected to be in the hospital for approximately ten more weeks.
According to the affidavit, the social worker’s notes stated that Mother had extensive
CPS history in Oklahoma, and that although Mother had stated she had been off from
work the two weeks prior, there were no notes in A.R.’s chart indicating his parents
had visited him in the hospital.
The representative stated in the affidavit that he met with Mother and Father
at the CPS office on August 12, 2021, and he immediately observed a foul odor
coming from them. Mother informed the representative that she was diagnosed as
bipolar, as having PTSD, and as having borderline personality disorder, but that she
had not been on medications during her pregnancy. When the representative asked
about previous domestic violence, Mother and Father told the representative they
were going to set up marriage counseling. Mother and Father also said they were not
using drugs at the time but they were “taking CBD oil[,]” and they agreed to take a
drug test. The next day, Mother left a voicemail for the representative, and Mother
stated that she spoke with an attorney and that the Department would have to get a
3
court order for Mother and Father to take a drug test or for the Department to enter
their home.
According to the affidavit, the representative visited A.R. at the hospital on
August 24, 2021, and the representative was informed that Mother and Father had
communicated to the hospital that they had tested positive for COVID and that they
had not been to the hospital nor calling to check on A.R. A.R. was still on a breathing
machine at the hospital.
The affidavit detailed Mother’s CPS history in Oklahoma as to a daughter that
was not Father’s child. The affidavit also detailed prior CPS history in Texas as to
another daughter Mother and Father shared, N.R. According to that affidavit, N.R.
was removed from Mother’s and Father’s custody due to Mother’s mental health
problems and Father’s methamphetamine use, their parental rights to N.R. were
terminated in December 2020 after Mother and Father did not successfully complete
all requirements of their service plan, and Mother and Father subsequently
relinquished their rights to N.R.
The affidavit also stated that both parents had a criminal history. Father was
arrested in 2017 and convicted of the offense of unlawfully carrying a weapon and
arrested in 2018 and convicted of the offenses of possession of marijuana in an
amount less than two ounces and tampering/fabricating physical evidence with intent
to impair.
4
The representative’s affidavit stated the following:
[Mother] has ongoing issues with her mental health that place [A.R.] in
danger. She is inconsistent with receiving treatment. There is excessive
history with the parents in the case from both Texas and Oklahoma that
remains unresolved. [A.R.] was born at 27 weeks and is fragile. [Father]
has [a] history of methamphetamine use that was not mitigated during
the previous case where parental rights of both parents were terminated.
The previous case was from 2019-December 2020. The parents have a
history of domestic violence and drug use. The Department is asking to
be named Temporary Managing Conservator of [A.R.], so he can have
a safe and sober medical consenter and be placed in a safe environment
when discharged.
After a bench trial, the trial court signed a Final Order Affecting the Parent-
Child Relationship and Order for Termination and found, by clear and convincing
evidence, that statutory grounds exist for termination of Father’s parental rights and
that termination of his parental rights would be in the best interest of the child. See
Tex. Fam. Code Ann. § 161.001(b)(1)(E), (O), (2). Father timely appealed.
Evidence at Trial
Testimony of the Department’s Investigator
An Investigator for the Department testified that he first received a call
regarding the case in early August 2021 and that the initial report he received was
regarding negligent supervision of A.R. by Mother and Father. The Investigator
testified that during his investigation he visited A.R. twice in the hospital and that
A.R., who was born two and a half months premature, was “on a breathing machine
and in a medical crib.” According to the Investigator, the hospital informed the
5
Investigator that A.R. was stable, A.R. had “a lot of needs that needed to be met[,]”
and the hospital met those needs.
The Investigator testified that when he first contacted Mother and Father at
their residence on August 9, 2021, the Investigator was not allowed to go into the
residence, and Mother and Father told the Investigator to leave the property.
According to the Investigator, Mother and Father “were pretty aggressive” and “not
willing to answer any questions[]” when the Investigator approached them, and they
questioned why the Department had a case because A.R. was in the NICU.
A few weeks later and during the legal proceedings, the Investigator took
photographs inside a different residence where Mother and Father then lived, and
they told the Investigator that they hoped to bring A.R. home from the hospital to
that residence. The photographs were admitted into evidence. The Investigator
testified that the residence was not an appropriate place for a newborn baby.
According to the Investigator, there was an outdoor propane grill in the kitchen that
was a potential fire hazard, there was a microwave but no other cooktop, there was
no running water at the residence, there was drywall missing, wires were exposed,
there were no sleeping arrangements for A.R., and the home was unsanitary. The
Investigator testified that Mother and Father were not concerned about the exposed
wiring, lack of drywall, or the outdoor cooktop inside, but that they were attempting
6
to repair the walls. On cross-examination, the Investigator admitted that he was not
aware that Father had moved out of the residence eight months prior to trial.
The Investigator testified that Mother had a CPS history: two cases based in
Oklahoma and one case in Texas. The Texas case involved Mother and Father’s
daughter, N.R., and they had relinquished their parental rights to N.R. The
Investigator testified that when he asked Mother and Father to take a drug test,
Mother told the Investigator that the Department would have to get a court order in
order for Mother and Father to comply. According to the Investigator, he never
received a drug test from Mother or Father while he investigated the case. The
Investigator testified that although there was no information suggesting there was a
drug issue relating to A.R.’s birth, he requested the drug tests due to “[p]ast history.”
Testimony of the Department Caseworker
The Department Caseworker testified that she worked with Mother and Father
regarding the family plan of service. The Caseworker testified that the Department
had temporary custody of A.R. for at least nine months. According to the
Caseworker, after A.R. was discharged she continued to inform Mother and Father
about A.R.’s medical issues, and the Department never directed Mother and Father
that they could not attend A.R.’s doctor visits. The Caseworker testified that she
heard Father’s testimony that he was at work during one of A.R.’s doctor’s visits,
but the Caseworker attended the appointment with A.R. that day and testified that
7
she saw Father in the vicinity dropping Mother off for the appointment and later she
saw Mother getting into Father’s car after the appointment. The Caseworker testified
that for another appointment the pediatrician had a policy due to COVID and the
facility’s treatment of premature babies that only one person could attend the
appointment with A.R. Because Mother and Father “were not the medical
consenters[]” at the time, Mother and Father were not allowed at the appointment.
According to the Caseworker, the visits she observed between A.R. and
Mother and Father did not go well as to Mother because Mother was “verbally
aggressive” during many of the visits, and Mother and Father would argue with one
another in A.R.’s presence. Once Mother and Father informed the Caseworker that
they had decided that when A.R. returned home Father would be working full-time
and Mother would be A.R.’s primary caretaker, the Department set up additional
supervised visits for Mother to have alone with A.R. The Caseworker testified that
she observed visits between Father and A.R. during the case and Father was
appropriate with A.R., fed A.R., changed A.R.’s diaper, and there was nothing she
observed during those visits that indicated that Father was unable to care for A.R.
The Caseworker testified that during visits between Mother and Father and
A.R. dating back to the beginning of the case, the Caseworker could smell smoke on
Mother and Father, and the Caseworker continued to smell smoke on both of them
during visits through January or February. The Caseworker testified that she
8
frequently would remind Mother and Father that they were not to smoke around A.R.
and that A.R. cannot be exposed to second- or third-hand smoke. Despite being
reminded, Mother and Father continued to smoke. The Caseworker testified that at
some point she learned that Mother and Father decided to vape instead, so the
Caseworker provided documentation from A.R.’s pediatrician stating that A.R. was
not to be around any type of smoke whether it was first-, second-, or third-hand, but
Mother and Father did not quit vaping. The Caseworker testified that she witnessed
Mother and Father vaping in the parking lot before and after their visits with A.R.
and that the Caseworker told them that was not appropriate, but Mother and Father
continued to vape before A.R.’s visits until April or May of 2022. The Caseworker
acknowledged that she did not stop any of the visits when Mother and Father smelled
of smoke, and she did not observe A.R. agitated or crying during those visits.
According to the Caseworker, the family plan of service required Father to
complete various services. In November 2021, February 2022, and July 2022 she
obtained service authorizations for Father to have a drug and alcohol assessment,
and those service authorizations were admitted into evidence. According to the
Caseworker, at the time of trial, Father had not completed his service plan for the
domestic violence issues in this case, and he had not completed the drug assessments
and classes.
9
The Caseworker testified that she believed it was in A.R.’s best interest for
Father’s parental rights as to A.R. to be terminated. According to the Caseworker,
her belief was based on the fact that Father was still legally married to Mother, Father
did not have a plan to take care of A.R. due to Father’s work, and Father did not
have a plan financially to take care of A.R. and meet A.R.’s needs, and based on
Father’s CPS history. The Caseworker testified that Father had drug issues in the
CPS case involving his daughter, N.R., and that those drug issues have not been
resolved in A.R.’s CPS case. The Caseworker testified she had concerns about
Mother and Father’s visits with A.R. when Mother and Father were verbally abusive
towards each other in front of A.R., concerns about Mother being around A.R. if
Father’s parental rights were not terminated because she believed Mother was still
involved with Father, and concerns that she had not observed that Father had
exhibited the ability to meet A.R.’s special needs. The Caseworker testified that she
had asked Father during the CPS case if he had names of placement options for A.R.
but Father could not provide the Caseworker any names, and the first time the
Caseworker had been given the names of Tyler, Oscar, Sherry, and David as possible
placements for A.R. was during Father’s testimony at trial.
Testimony of Dr. Victor Love
Dr. Victor Love testified that in this case the Department requested that he
provide individual therapy for Father starting in March 2022. At the time of trial in
10
September 2022, Dr. Love was still treating Father. According to Love, he
counseled Mother and Father together as a couple for fifteen sessions starting in
February 2022, but those sessions ended when the couple separated in mid-June. Dr.
Love testified that although he was not provided a lot of detail about A.R.’s special
needs, it was Dr. Love’s general understanding that A.R. needed physical and speech
therapy and suffered from lung conditions and other conditions or developmental
delays.
Dr. Love testified that the goals for Father’s therapy treatment plan were to
discuss the issues that led to CPS intervention, discuss Mother and Father’s marital
relationship and to try to make improvements with that, to discuss Mother’s and
Father’s prior CPS history, and “to discuss their use of nicotine and other substances
that created problems for them [and] for their medically fragile son.” According to
Dr. Love, Mother and Father denied having a substance abuse problem, but it was
discussed “from time to time . . . [b]ecause they had a history of using, and it was
one of the things that the Department was concerned about.” Dr. Love testified that
Father said that the Department claimed he was not visiting his son enough while
his son was in the hospital and that the Department termed that as neglectful
supervision. Father denied that he was neglectful and claimed there was a “24/7
nanny cam” where Father could check on A.R. if he did not come to the hospital.
11
Father reported past use of marijuana, cocaine, ecstasy, alcohol, synthetic
marijuana, and “sort of a combination of meth[amphetamine] and ecstasy.” Father
reported that he stopped using everything but marijuana in 2019, but he admitted
using marijuana until the case started. Father told Dr. Love that he had started drug
use when he was an adolescent, that he had received substance abuse services in a
prior CPS case, and that Father began outpatient substance abuse treatment with
regard to this case the month prior to trial after he completed a drug assessment. Dr.
Love also testified that, to his knowledge, Father did not seek substance abuse help
during the pendency of the case until the month before trial. During the therapy
sessions they discussed the detrimental effect of cigarette smoking or vaping or other
types of smoking on A.R., who had a fragile medical condition.
Dr. Love stated that Mother and Father discussed domestic violence between
them during their therapy sessions, but that Dr. Love thought that Father did not take
the domestic violence with Mother very seriously. Dr. Love testified that from the
therapy sessions it appeared that Mother was the aggressor in the domestic
relationship. Dr. Love described Mother and Father’s relationship as a married
couple at times as “silly, immature, and . . . quite conflictual.” According to Dr.
Love, he and Father discussed the fact that Mother had relinquished her parental
rights to A.R. and that, although Father seemed troubled by that fact, he “came to
understand that it was a good choice.”
12
Dr. Love testified he discussed with Father the need for Father to set up
consistent day care for A.R. so Father could work full-time as a single father and
that Father’s finances needed to be in order for him to be able to care for and support
A.R. According to Dr. Love, Father told him that he had friends who could provide
day care or babysit and that he intended to pursue day care through government
assistance, Father “didn’t see that there was much he had to do[,]” and Father felt
confident that he could care for A.R. Dr. Love testified that he believed Father had
been continuously employed during the seven months of treatment prior to trial, but
that Father had changed jobs and had four different employers during that time
period in addition to an ongoing side job as a mechanic.
According to Dr. Love, Father reported having “seizures” periodically that
were precipitated by either anxiety or stress, and Father reported that he suffered
from “calcium deposits” throughout his body that he called “bone cancers[.]” Dr.
Love testified that the seizures could be concerning. Father reported he had an
appointment with a neurologist to address the seizures, but Dr. Love did not know
whether Father attended the appointment. Father reported having his last seizure
right after A.R.’s birth, when A.R. was in the NICU.
According to Dr. Love, Father had met the initial goals for therapy. Dr. Love
testified that a large amount of conflict for Father was his relationship with Mother
and that, since Father’s separation from Mother, Father reported being happier and
13
less stressed. Based on Mother’s and Father’s financial struggles, Dr. Love felt like
Father could benefit with further sessions regarding budgeting so that he could be
more able to “demonstrate a lot more understanding and ability to be able to provide
his son with all the medical needs, treatment services that he has, and day care
because as a single dad, he needs to be working.” Dr. Love felt that subsequent goals
that he had for Father that had not yet been met were for Father to “further explore
his ability to manage his finances and truly understand clearly what it would take to
support himself and a child with - - particularly with a lot of medical needs and
appointments and day care.”
Father’s Testimony
Father testified that at the time of trial, his son, A.R., was a year and three
months old. According to Father, A.R. was born premature with undeveloped lungs
and was in a fragile medical condition. Father testified that A.R. was in the hospital
for three or four months after his birth and Father visited A.R. at the hospital
regularly. According to Father, the Investigator told him when A.R. was released
from the hospital and removed to the Department’s custody that Father was no
longer allowed to know anything about A.R.
Father testified that he had a six-year-old daughter with another woman with
whom he shared custody, and he visited that daughter every weekend. He also had a
three-year-old daughter, N.R., with Mother, he relinquished his parental rights to
14
N.R. less than two years before this trial, and his parental rights to N.R. were
terminated while he was still married to Mother. According to Father, he
relinquished his parental rights as to N.R. because he was unstable at the time and
“was in between houses.” Father testified that since the start of this case he has had
two different full-time jobs: a fast-food restaurant where he worked for eight months
and at a warehouse where he has worked for two months. Father testified that he did
not know the name of his current employer at the warehouse, but that he provided
the Caseworker proof of employment that identified his employer, and he worked
Monday through Friday from “[e]ight to five.”
Father testified that at the time of trial, “[s]adly[]” he was still married to
Mother. He had filed for divorce in June 2020 during his CPS case regarding his
daughter, N.R. According to Father, he filled out the petition himself and the
document asked what visitation Mother should have and he responded that Mother
should have zero contact because she was “unfit.” Father admitted he had
nonetheless stayed together with Mother despite believing she was unfit and then
they had another child, A.R. Father testified that at the time of trial he and Mother
were separated because she relinquished her parental rights to A.R. and she
committed adultery. Father testified that since the start of trial he no longer was in
contact with Mother. Father admitted that in the other CPS case with N.R., their
15
daughter, he and Mother had domestic disputes and two of the disputes were physical
with Mother being the aggressor.
Father testified that in this case his service plan required him to complete a
Batterers Intervention Prevention Program because the domestic violence between
him and Mother was still an issue for the Department. According to Father, he did
not remember completing that program or getting a certificate for completing the
program. Father also testified that the Department had concerns in this case that he
had a drug issue, and his service plan required him to do a drug and alcohol
assessment, but he waited and did not complete the assessment until the month
before trial. At the time of trial, he had started sessions relating to that assessment
but had not completed them, and the drug and alcohol assessment that he completed
in this case indicated he needed more classes despite him completing a drug and
alcohol program during the case relating to his daughter with Mother. Father testified
he had been working on his drug treatment program for about a month and only had
a couple of weeks left, and with the program he had three individual and three group
sessions a week.
Father admitted he did not have a valid Texas driver’s license because he was
“in the process of paying it[,]” and his license had not been valid for a number of
years. Father testified that the impediment to him getting a driver’s license was that
he received a speeding ticket “about a year ago that [he was] currently paying off.”
16
Father testified that he suffered from nonepileptic seizures that caused him to “black
out[,]” that he last suffered one of these seizures at the beginning of this case and
had to go to the emergency room, and he has not been prescribed medicine because
his appointment with a neurologist was not for a few more months. According to
Father, he waited to take care of the neurological problem because it took him some
time to “get on insurance.”
Father admitted that during this case he had acknowledged having a drug or
alcohol problem. Father testified that the most recent Narcotics Anonymous or
Alcoholics Anonymous session he attended was the Saturday of the week of trial
and that he had an NA sponsor in the previous case but did not have a sponsor at the
time of trial. Father testified that CPS asked him to drug test every two or three
months during this case and that he has been drug free since the start of the case. On
cross-examination, Father admitted that he had tested positive for marijuana in
October 2021 after this case had started, but he said he tested positive because
“Delta-8 is not illegal, but it’s still positive as marijuana or THC[]” on a drug test.
Father acknowledged that A.R.’s medical condition required A.R. to not be around
smoke, and Father testified that he quit smoking cigarettes in January 2022 and quit
vaping in April 2022. According to Father, he did not know for some time that A.R.
should not be exposed to second-hand smoke, and he did not know for some time
that vaping around A.R. could cause him harm.
17
Father characterized A.R.’s medical condition as “special needs[]” and
although Father said he was not completely informed of A.R.’s needs, he understood
that A.R. was going to always have special needs, needed to be on a special diet
prepared at home “from scratch[,]” had many doctor’s appointments, had physical
therapy once a week, and needed a “practically germ-free environment.” Father
testified he could provide a practically germ-free environment in his current home
because he was “pretty well a germ freak[.]” Father admitted he had never had sole
custody or raised a child as a single parent. He testified that he or his brother could
take A.R. to his weekly physical therapy appointments even if it meant taking off
from work. Father testified his current warehouse employment was forty hours per
week making between $3000 and $4000 a month. He testified he also has a side job
as a mechanic. He testified his rent was $1000 a month plus utilities.
Father planned on putting A.R. in day care while Father worked but he did not
know the cost of day care because he had not found one yet that he liked. He found
one day care that could accommodate A.R.’s special needs that was $215 a week,
but Father did not like that day care, and the other day care centers he looked into
for A.R. cost from $150 to $300 per week. Father testified that if A.R. was sick or
unable to go to day care, Father had family – “Tyler, Oscar, [Father’s] adoptive
mother Charity, [Father’s] adopted brother David[]” – with whom A.R. could stay
in the area. Father admitted those individuals had never met A.R.
18
Father testified he lived in an RV that had one bedroom, two bunk beds, one
bathroom, and working utilities. Father testified that he had a crib, car seat, stroller,
toys, and clothes at his RV for A.R. According to Father, the Court Appointed
Special Advocate, the ad litem, and another person came to visit his current home
once, but he did not think anyone from CPS came to look at it. He acknowledged
that the RV he was living in at the time of trial was a different trailer from the one
where he initially lived earlier in the case.
According to Father, over the last two years he had suffered from six or seven
seizures, his most recent seizure was eight months prior to trial, and the seizures
were caused by stress. Father testified that he worked with Dr. Love on coping
mechanisms and reducing stress. Father testified that he believed he had addressed
his domestic violence issues in this case, but he admitted that he did not use Batterers
Intervention Prevention Program or any other source on a regular basis.
Testimony of A.R.’s Foster Mother
A.R.’s Foster Mother (Foster Mother) testified she was notified about A.R. on
October 26, 2021, and she visited him at the NICU at Memorial Hermann every day
until he was discharged, and A.R. came home with her on November 1, 2021. Foster
Mother testified that on October 26th her understanding of A.R.’s diagnosis was
“bronchopulmonary dysplasia so extremely weak lungs[,]” a minor brain bleed, a
valve problem in his heart where his valve had not sealed completely, retinopathy of
19
prematurity so he did not have complete use of his eyesight, and he was severely
underweight.
Foster Mother testified that she and her husband participated in training at the
hospital during that week on how to care for A.R. before she was allowed to leave
the NICU with A.R., and she and her husband had to do an overnight stay as well.
According to Foster Mother, on the recommendation of A.R.’s doctor, A.R. was put
on a strict diet and feeding schedule when discharged, and Foster Mother had to
make puree at home from a mixture of protein, fat, and carbs in order to keep A.R.’s
weight up and use a lot of herbs to help with A.R.’s acid reflux and indigestion
issues. Foster mother testified that A.R. was required to continue that diet to stay the
proper weight. Foster Mother testified as follows regarding A.R.’s medical condition
at the time of trial:
The lung problem is still persistent. He no longer has the eye issues or
the heart problems. We have not had to see a follow-up with cardiology.
That could change as he gets older. The brain bleed we will not see
whether or not that had an effect on his life until he starts going to
school. That could cause mental delays in his education and then he is
finally no longer considered a high-risk weight category as of a week
ago. So he’s finally stable weight as of last week.
According to Foster Mother, A.R. saw a physical therapist every two weeks and she
or her husband facilitated A.R.’s at-home physical therapy on average six out of
seven days a week. Foster Mother explained that A.R. needed physical therapy
because he had abnormal movement patterns because of being premature, and the
20
physical therapy helped “unteach” incorrect patterns. Foster Mother explained that
recent at-home therapy required both her and her husband to assist because A.R. had
gotten older and bigger. Foster Mother testified she had seen physical improvement
with A.R. and, based on information from his therapist, Foster Mother believed A.R.
would continue physical therapy until he was old enough to attend school. Foster
Mother testified that she also monitored A.R.’s hydroceles, or excess fluid in his
testicles which put him at a higher risk of hernias in the groin area. Foster Mother
testified that, in addition to the physical therapy at home, A.R. usually had four or
five medical or therapeutic appointments each month. Foster Mother explained that
although A.R. was not considered “special needs” because he had no mental delay,
there were still long-term concerns for A.R. because his lungs were weaker than the
average child, “he’s always at a higher risk of wheezing and aspirating, and then also
his brain bleed could come back to cause issues later.” Foster Mother testified that
when they first met with A.R.’s doctor, the doctor told Foster Mother that A.R. could
not be exposed to smoke or air irritants. According to Foster Mother, A.R. was
behind physically, verbally, and cognitively, and his preventative care would be
“very long-term[.]” Foster Mother testified that A.R. was “hypoallergenic” and had
severe acid reflux. Foster Mother testified she and her husband were an “adoption-
eligible household[,]” and they wanted to adopt A.R. if his parents’ parental rights
were terminated.
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Testimony of the Court-Appointed Special Advocate
The Court-Appointed Special Advocate (“CASA”) testified that she was
appointed August 29, 2021, she visited Father’s home, and she found the home to
be appropriate for A.R. with no issues regarding cleanliness. She testified she saw a
car seat but did not see a crib or any clothing for a child at the home. The CASA
testified that she observed visits between Mother and Father and A.R. and, although
some visits were appropriate, the interaction between Mother and Father during
some visits was not appropriate and Mother would “burst out and leave and [Father]
would stay with [A.R.] by himself.”
According to the CASA, A.R. needs a different level of care than a normal
one-and-a-half-year-old or two-year-old and
[h]e needs all the things that [the foster parents] are doing for him to be
able to continue to progress because he’s got all the development issues
and lung issues. I don’t think that if it was for the hard work they’ve
put into helping him, he would be where he’s at right now.
When asked whether she thought Father had the ability to do the things that she
observes A.R.’s foster parents doing with A.R., the CASA responded that although
she had observed the visits between Father and A.R., Father appeared connected
with A.R. but there had not been enough interaction for her to say confidently that
Father had the ability to do all the things Foster Mother does for A.R. The CASA
was concerned that Father had not completely addressed his drug problem and his
domestic violence issues. The CASA felt that all the things in Father’s service plan
22
were necessary for him to be able to obtain A.R. back, and the CASA was concerned
that Father did not complete his service plan. The CASA was also concerned that
Father continued to smoke or vape for many months after he was asked to stop, and
that even after Father made assurances he would stop, the CASA saw Father
continuing to smoke or vape. According to the CASA, she was not in agreement
with a monitored return home to Father, but she also was not completely in
agreement with the Department’s request to terminate Father’s parental rights. She
did not believe it was in A.R.’s best interest to live with Father, and she believed it
was in A.R.’s best interest to stay with his foster parents.
Other Evidence
The Affidavit of Voluntary Relinquishment of Parental Rights to the
Department of Family and Protective Services executed by Father in 2020 as to his
daughter with Mother was admitted into evidence. The order terminating Mother’s
and Father’s parental rights to their daughter, N.R., in 2020 was also admitted into
evidence. A copy of Father’s petition for divorce filed in 2020 wherein he alleged
Mother “should have zero contact” with their daughter because “she [was] unfit”
was admitted into evidence. The court-ordered family service plan was admitted into
evidence, and it required Father to obtain and maintain appropriate housing;
demonstrate the ability to obtain/maintain employment; participate in parenting
classes; obtain a drug assessment and follow all recommendations; participate in
23
therapy in order to demonstrate his ability to provide for A.R. with care and nurture;
participate and complete services to address domestic violence in order to learn the
ability to avoid domestic violence; complete a psychological evaluation and follow
all recommendations by the psychologist; and develop a larger group of family and
friends for support. The status hearing order was also admitted into evidence.
Standard of Review
The decision to terminate parental rights must be supported by clear and
convincing evidence. Tex. Fam. Code Ann. § 161.001(b). Under the Family Code,
“‘[c]lear 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.” Id. § 101.007; In re J.L., 163 S.W.3d 79,
84 (Tex. 2005). The movant must show that the parent committed one or more
predicate acts or omissions and that termination is in the child’s best interest. See
Tex. Fam. Code Ann. § 161.001(b); In re J.L., 163 S.W.3d at 84.
In reviewing the legal sufficiency of the evidence in a parental rights
termination case, we must consider 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.O.A., 283 S.W.3d 336, 344-45 (Tex.
2009) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume the
factfinder resolved the disputed facts in favor of its finding if a reasonable factfinder
24
could do so, and we disregard all evidence that a reasonable factfinder could have
disbelieved. Id. In a factual sufficiency review, we “give due consideration to
evidence that the factfinder could reasonably have found to be clear and
convincing.” In re J.F.C., 96 S.W.3d at 266. We must determine “‘whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth of the State’s allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25
(Tex. 2002)). “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, then the
evidence is factually insufficient.” Id. In cases tried to the bench, the trial court in its
role as factfinder determines the credibility and weight of the witnesses’ testimony
and resolves any inconsistencies or conflicts in the evidence. See Webb v. Crawley,
590 S.W.3d 570, 578 (Tex. App.—Beaumont 2019, no pet.); In re R.J., 568 S.W.3d
734, 754 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). Only one statutory
ground under section 161.001(b) is required to terminate parental rights. See In re
Z.M.M., 577 S.W.3d 541, 542 (Tex. 2019). “All evidentiary standards, including
clear and convincing evidence, recognize the relevance of circumstantial evidence.”
In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015); see also In re R.H.W. III, 542 S.W.3d
724, 734 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
25
Analysis
In his first issue, Father challenges the sufficiency of the evidence under the
predicate finding of subsection E. See Tex. Fam. Code Ann. § 161.001(b)(1)(E). In
his second issue, Father argues that his family service plan was ambiguous and did
not give him the notice required under the statute, and therefore, subsection O cannot
serve as a ground for terminating his parental rights. See id. § 161.001(b)(1)(O).
For purposes of subsection E, endangerment means to expose the child to loss
or injury or to jeopardize a child’s emotional or physical health. Id. §
161.001(b)(1)(E); In re M.L.L., 573 S.W.3d 353, 363 (Tex. App.—El Paso 2019, no
pet.). Termination under subsection E requires a voluntary, deliberate, and conscious
course of conduct by the parent. In re M.L.L., 573 S.W.3d at 363-64. A parent’s
conduct that subjects a child’s life to instability and uncertainty endangers the
emotional or physical well-being of a child. Id. at 363. Endangerment is not limited
to actions directed toward the child and includes the parent’s actions before the
child’s birth and while the parent had custody of older children. In re J.O.A., 283
S.W.3d at 345. Abusive or violent conduct by a parent may also produce a home
environment that endangers a child’s well-being. In re J.I.T.P., 99 S.W.3d 841, 845
(Tex. App.—Houston [14th Dist.] 2003, no pet.).
In addition, a pattern of drug abuse will also support a finding of conduct
endangering a child even if there is no evidence that such drug use actually injured
26
the child. Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189,
196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). A history of illegal drug use
is conduct that subjects a child to a life that is uncertain and unstable, endangering
the child’s physical and emotional well-being. See In re S.R., 452 S.W.3d 351, 361-
62 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (parent’s drug use may
qualify as a voluntary, deliberate, and conscious course of conduct endangering the
child’s well-being); Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs.,
221 S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (en banc).
A parent’s drug use, incidents of domestic violence, and employment and housing
instability prior to and during the case create a course of conduct from which the
factfinder may determine the parent endangered the child’s emotional and physical
well-being. See In re N.F., No. 09-19-00435-CV, 2020 Tex. App. LEXIS 3650, at
*66 (Tex. App.—Beaumont Apr. 30, 2020, pet. denied) (mem. op.). “[N]eglect can
be just as dangerous to the well-being of a child as direct physical abuse.” In re M.C.,
917 S.W.2d 268, 270 (Tex. 1996). A parent who continually exposes the child to
unsanitary living conditions, continued uncleanliness, and the lack of attention to
medical needs is evidence of endangering environment. See id. at 269-70. In
addition, a court may consider a parent’s failure to complete a service plan as part
of its analysis of endangering conduct. See In re N.F., 2020 Tex. App. LEXIS 3650,
at *67.
27
The record demonstrates that A.R. was born premature at twenty-seven
weeks, and hospital notes in A.R.’s chart do not indicate his parents ever visited him
in the hospital. Despite testimony that there was a “24/7 nanny cam” at the hospital
that Father could watch, the affidavit attached to the petition noted that A.R.’s
parents had failed to call and check on A.R. at the hospital. The record also
demonstrates that Father relinquished his parental rights to an older child with
Mother, he did not complete his service plan in that case, and that his parental rights
were terminated as to that child in 2020. Father had a criminal history and a history
of methamphetamine use that was not mitigated during the previous CPS case where
his parental rights were terminated.
Although at trial Father testified that he was in a different RV, photographs of
the home where he and Mother had intended to live when A.R. was born and which
were from the beginning of the case were admitted into evidence and the Investigator
testified as to the potential hazards in the home and that it was unsanitary, had no
running water, and was not appropriate for a newborn baby. Father admitted during
the case he had a previous drug problem. The trial court heard the Investigator’s
testimony that while he investigated the case Father did not take a drug test despite
the Investigator’s request for drug testing. A parent’s refusal to submit to drug testing
may be considered as evidence that he or she is continuing to abuse drugs. In re
O.G.H.D., No. 09-21-00172-CV, 2021 Tex. App. LEXIS 8002, at *28 (Tex. App.—
28
Beaumont Sept. 30, 2021, no pet.) (mem. op.) (citing In re T.R.L., No. 10-14-00290-
CV, 2015 Tex. App. LEXIS 2178, at *14 (Tex. App.—Waco Mar. 5, 2015, no pet.)
(mem. op.) (“A factfinder may reasonably infer from a parent’s refusal to take a drug
test that the parent was using drugs.”); In re C.R., 263 S.W.3d 368, 374 (Tex. App.—
Dallas 2008, no pet.) (trial court could reasonably infer parent avoided taking drug
tests because she was using drugs)). Father admitted that he had tested positive for
marijuana in October 2021(after this case was filed). Dr. Love testified that Father
had reported past use of marijuana, cocaine, ecstasy, alcohol, synthetic marijuana,
and “sort of a combination of meth[amphetamine] and ecstasy.” Dr. Love testified
that Father reported he was still using marijuana until this case began. The trial court
also heard the Caseworker testify that despite her obtaining service authorizations
earlier in the case, Father did not have a drug assessment until a month before trial.
Although Father denied using drugs at the time of trial, the trial court heard Father’s
testimony that he had a history of using drugs, he did not complete the drug treatment
required by the family service plan, and he did not have an NA sponsor.
The trial court heard the extensive medical needs of A.R. and that the care
required for his special needs would extend into the future. The trial court heard that
any kind of smoke exposure to A.R. was detrimental to A.R.’s health due to A.R.’s
weak lungs, and that despite constant instructions to Father to stop smoking or
vaping he continued to do so during the case. The trial court heard testimony that
29
A.R. required a “practically germ-free environment” for health reasons, and
photographs of Father’s residence at the beginning of the case were admitted into
evidence, and even though Father had moved into another RV by the time of trial,
the trial court could have concluded from the earlier photographs that Father was
unable to consistently provide a sanitary environment for A.R. The Caseworker
testified that Father did not have a plan to care for A.R. while Father worked, nor
did he have a plan of how he could care for A.R. and his special needs. The trial
court heard testimony that Father suffered from seizures that caused him to “black
out[,]” that the seizures were brought on by stress, Father had suffered a seizure since
A.R.’s birth, and, as of the time of trial, Father had not yet seen a neurologist. The
trial court also heard testimony from Father that he or his brother would take A.R.
to any necessary medical appointments but also heard testimony that Father and his
brother both worked.
The trial court heard testimony that Father had not completed items required
in the family service plan, such as substance abuse treatment and completion of
services related to domestic violence issues. The trial court heard evidence that
during the case Father had changed housing and employment and the trial court
could have considered all of this when assessing Father’s stability. Father testified
that he relinquished his rights to his daughter, N.R., in the prior CPS case because
he was “unstable” then and “was in between houses.” The trial court heard Dr. Love
30
testify that he felt Father needed further sessions regarding budgeting and being able
to demonstrate that he could be able to care for A.R. while being a working, single
Father. Despite Father’s testimony that he could financially provide for A.R., the
trial court also heard Father’s testimony that he had not obtained a valid Texas
driver’s license in over a year because of a speeding ticket he was working to pay
off and he had not seen a neurologist for his seizures because he was waiting to
obtain insurance.
The trial court heard testimony that Father was still legally married to Mother
at the time of trial and that he fathered another child with Mother, despite feeling
she was an unfit mother and despite the fact she was abusive towards Father. Father
testified that there was a history of domestic abuse between him and Mother, and
Dr. Love testified that he did not feel Father was serious about addressing the
domestic violence with Mother. The trial court heard the Caseworker’s testimony
that she had concerns about Mother being around A.R. if Father’s parental rights
were not terminated because she believed Mother was still involved with Father, and
concerns that she had not observed that Father had exhibited the ability to meet
A.R.’s special needs.
The trial court heard the Caseworker’s testimony that she believed it was in
A.R.’s best interest for Father’s parental rights to be terminated and the CASA’s
testimony that she did not believe it was in A.R.’s best interest at the time of trial to
31
live with Father. The trial court also heard the CASA state she was also not sure that
termination of the Father’s rights was in the best interest of the child, and the CASA
believed it was in the child’s best interest to remain in the care of the foster parents.
Deferring to the trial court’s credibility determinations and reviewing all the
evidence in the light most favorable to the finding under subsection E, as we must,
the trial court could reasonably have formed a firm belief or conviction that Father’s
conduct endangered A.R.’s well-being. We conclude that the Department
established, by clear and convincing evidence, that Father committed the predicate
act enumerated in subsection E. See Tex. Fam. Code Ann. § 161.001(b)(1)(E).
Further, considering the entire record, we conclude the disputed evidence the trial
court could not reasonably have credited in favor of its endangerment finding is not
so significant that the court could not reasonably have formed a firm belief or
conviction that the finding under subsection E is true. See In re J.F.C., 96 S.W.3d at
266. We overrule issue one.
In issue two, Father contends that his service plan was not sufficiently specific
to support termination of his parental rights under subsection O. Under subsection
O, “[t]he court may order termination of the parent-child relationship if the court
finds by clear and convincing evidence: [the parent] failed to comply with the
provisions of a court order that specifically established the actions necessary for the
parent to obtain the return of the child[.]” Tex. Fam. Code Ann. § 161.001(b)(1)(O).
32
“The department . . . must write the service plan in a manner that is clear and
understandable to the parent in order to facilitate the parent’s ability to follow the
requirements of the service plan.” Id. § 263.102(d). “Because a trial court must
necessarily decide that a court order is sufficiently specific for the parent to comply
before terminating a parent’s rights under section 161.001(b)(1)(O), a trial court
cannot terminate parental rights for failure to comply without first considering the
order’s specificity.” In re N.G., 577 S.W.3d 230, 239 (Tex. 2019).
Father argues that his service plan did not specifically require him to complete
drug classes or complete a batterer’s intervention program (or other domestic
violence prevention program). As to these tasks, the family service plan outlined the
following requirements for Father in relevant part 3:
Substance Abuse/Use
....
Required Action:
SUBSTANCE ABUSE SERVICES
[Father] will obtain a drug assessment to evaluate his need for treatment
associated with substance abuse issues. [Father] will have to follow
recommendations made by the provider. . . .
....
Intimate Partner Violence
3
The family service plan noted on each page of these requirements that “*All
services must be completed by the commencement of trial[.]*”
33
....
Required Action:
BIPP/DOMESTIC VIOLENCE PROGRAM
[Father] will actively participate and complete in specialized services
to address domestic violence. He will need to learn the ability of
avoiding domestic violence. [Father] will provide the caseworker
original certificate of completion.
Regarding these tasks, Father testified at trial as follows:
[Department’s Counsel]: . . . . And so in your family plan of service,
the Department asked for you to complete a
BIPP program, Batterers Intervention
Prevention Program, correct?
[Father]: I believe so.
[Department’s Counsel]: All right. And you did not do that, correct?
[Father]: I can’t recall. I’ve done a lot for CPS. So I
can’t recall whether I’ve completed it or not.
[Department’s Counsel]: Okay. So . . . you don’t know if you’ve ever
done a BIPP program?
[Father]: Yeah. I have no idea.
[Department’s Counsel]: Okay. So you don’t know if you’ve done a
program that particularly and only addressed
your issues as a victim in domestic violence?
[Father]: I don’t think I have.
[Department’s Counsel]: Okay. And you would have gotten a
certificate from that. So did you ever get a
certificate --
[Father]: No.
34
....
[Department’s Counsel]: . . . . So do you have any remembrance of the
fact that the judge ordered you to do the
services that were in the family plan of
service?
[Father]: Yes, ma’am.
[Department’s Counsel]: You realize that a violation of that would be
very serious and could create a situation
where your rights would be restricted or
terminated?
[Father]: Yes, ma’am.
[Department’s Counsel]: Did you understand that since you were here
at every hearing?
[Father]: Yes, ma’am.
....
[Department’s Counsel]: And you didn’t do BIPP at all, correct?
[Father]: Yes, ma’am.
....
[Department’s Counsel]: . . . . And so even though you waited all this
time to do your drug and alcohol assessment,
you did start some sessions?
[Father]: Yes, ma’am.
[Department’s Counsel]: But you’re not done, are you?
[Father]: I’m already halfway through.
[Department’s Counsel]: Okay. But you’re not done today?
35
[Father]: No.
....
[Department’s Counsel]: [T]he drug and alcohol assessment that you
took in August of this year indicated that you
needed more help, correct?
[Father]: I’m guessing.
[Department’s Counsel]: Well, you’re going to classes, aren’t you?
[Father]: Yes, ma’am.
The status hearing order that was admitted into evidence and that was entered earlier
in the case included the following finding:
The Court finds that [Father] has reviewed and understands the service
plan and has been advised that unless he is willing and able to provide
the child with a safe environment, even with the assistance of a service
plan, within the reasonable period of time specified in the plan, his
parental and custodial duties and rights may be subject to restriction or
to termination or the child may not be returned to him.
Father testified that his service plan required him to do a drug and alcohol
assessment. At the time of trial, he had started sessions relating to that assessment
but had not completed them, and the drug and alcohol assessment that he completed
in this case indicated he needed more classes despite him completing a previous drug
and alcohol program during the other case relating to his daughter with Mother.
Father testified he had been working on his drug treatment program for about a
month and only had a couple of weeks left, and with the program he had three
individual and three group sessions a week.
36
On this record, the family service plan specifically established that Father was
required to follow the recommendations after the drug assessment (which testimony
established included drug classes), and the service plan specifically established that
Father was required to complete a batterer’s intervention prevention program or
other domestic violence prevention program. Father testified that he did not
complete the drug classes and did not complete a batterer’s intervention program.
We overrule issue two. See Tex. Fam. Code Ann. § 161.001(b)(1)(O); In re N.G.,
577 S.W.3d at 239. Having overruled Appellant’s issues on appeal, 4 we affirm the
trial court’s judgment.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on January 24, 2023
Opinion Delivered February 9, 2023
Before Golemon, C.J., Johnson and Wright, JJ.
4
On appeal, Father does not challenge the trial court’s finding as to best
interest.
37