In the Interest of J.H. A/K/A I. J. C.-H. A/K/A J. I. C. H. a Child v. Department of Family and Protective Services ( 2023 )

Opinion issued February 23, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00629-CV
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IN THE INTEREST OF J.H. A/K/A I.J.C.-H. A/K/A J.I.C.H., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2020-02245J
MEMORANDUM OPINION
In this accelerated appeal,1 appellant, mother, challenges the trial court’s
order, entered after a bench trial, terminating her parental rights to her minor child,
J.H., also known as I.J.C.-H. and also known as J.I.C.H. (“J.H.”),2 and awarding the
1
See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4.
2
There is no dispute that J.H.’s father is deceased. J.H. was six years old when the
trial court signed its order terminating mother’s parental rights.
Department of Family and Protective Services (“DFPS”) sole managing
conservatorship of J.H. In four issues, mother contends that the trial court erred in
appointing DFPS as the sole managing conservator of J.H. and the evidence is
legally and factually insufficient to support the trial court’s findings that mother
knowingly placed, or knowingly allowed J.H. to remain, in conditions or
surroundings which endangered his physical or emotional well-being,3 failed to
comply with the provisions of a court order that specifically established the actions
necessary for her to obtain the return of J.H.,4 and termination of her parental rights
was in the best interest of J.H.5
We affirm.
Background
On November 30, 2020, DFPS filed a petition seeking termination of mother’s
parental rights to J.H. and managing conservatorship of J.H.6
Removal Affidavit
At trial, the trial court admitted into evidence a copy of the affidavit of DFPS
investigator Marlena Benitez. Benitez testified that on November 25, 2020, DFPS
3
See TEX. FAM. CODE ANN. § 161.001(b)(1)(D).
4
See id. § 161.001(b)(1)(O).
5
See id. § 161.001(b)(2).
6
DFPS filed a second amended petition seeking termination of mother’s parental
rights to J.H. and managing conservatorship of J.H. on May 24, 2022.
2
received a referral alleging neglectful supervision of J.H. by mother. J.H., who was
four years old at the time, ran out of mother’s apartment and was sitting on the street
curb in front of his apartment complex for hours. J.H. ran across a main street to a
store and stole an ice cream. J.H. then began to walk back across the main street in
front of oncoming traffic. A third party was able to stop J.H. and walk him back
across the street. The third party walked J.H. to mother’s apartment and knocked on
the door to return J.H. to mother. When J.H. was back in mother’s care, the third
party saw mother slap J.H. with a cane.
Following the referral, Benitez, spoke with the third party who returned J.H.
to his apartment on November 25, 2020. The third party stated that she and her
husband saw J.H. sitting on the street curb in front of an apartment complex. The
third party pulled her car over to help J.H. when she saw him “bolt across” a main
street through oncoming traffic. J.H. went into a store and came out with an ice
cream. The third party went inside the store and paid for the ice cream because
J.H.’s parent was not inside the store. The third party then saw J.H. “proceed[] to
run across the [main] street with oncoming traffic” again. She stopped J.H. and
helped him cross the street safely. She tried to communicate with J.H., but he did
not speak English. She followed J.H. through the apartment complex to his door,
where she knocked. Mother answered the door, and the third party asked if J.H. was
mother’s child. Mother stated that he was and told the third party that J.H. was
3
“always running out.” As soon as the third party started walking away, mother
“slapped [J.H.] across the face with her cane aggressively.”
After the November 25, 2020 incident, Benitez also spoke to Danys7—
mother’s oldest adult-son—who told Benitez that he was supposed to ensure that
J.H. had a protective caregiver, but on November 25, 2020, mother told Danys that
she was depressed and “needed company,” so Danys left J.H. with mother instead
of taking him to a babysitter when Danys went to work.
Benitez also spoke to mother who stated that J.H. ran out of the apartment on
November 25, 2020, while he was under her supervision. Mother denied hitting J.H.
with a cane.
Benitez saw J.H. three days after the November 25, 2020 incident and tried to
speak to him. But she could not interview him because he was unable to complete
a full sentence. J.H. ran around and would not sit still. Benitez saw “marks on”
J.H.’s face and “scratches over his body.” J.H. was unkempt. His clothes were not
clean, his hair was not combed, and it appeared that J.H. did not bathe. J.H.’s teeth
were brown and looked rotten. It did not look like J.H. had ever been to a dentist.
As to mother’s home, which Benitez saw during her investigation, Benitez
testified that it was a one-bedroom apartment. The apartment was cluttered and had
broken glass on the floor. J.H. was barefoot in the apartment when there was broken
7
We note that Danys’s name is spelled differently throughout the appellate record.
4
glass on the floor. The apartment had food and working utilities. The apartment
was free of odor, and there was “a chain lock and cables on the door.”
Benitez’s affidavit also detailed mother’s history with DFPS. Previously,
there was another allegation of neglectful supervision of J.H. by mother. As to that
allegation, the affidavit states that J.H. was living in the apartment with Danys and
mother and Danys left J.H. with mother while he went to work. But mother had a
stroke about three months prior and had lost mobility in half of her body. Mother
admitted that J.H. had left the apartment while he was under her supervision, and
she had attempted to run after him but was physically unable to do so. Danys and
mother agreed to a “safety plan” with DFPS, which stated that J.H. would no longer
be left unsupervised with mother. Danys agreed to pay for a babysitter to take care
of J.H. while Danys was at work, and Danys and mother placed new locks on the
door to the apartment to try to prevent J.H. from getting out of the apartment.
Benitez ultimately concluded, based on her investigation, that J.H. had
managed to get out of mother’s apartment on multiple occasions when he was
without adequate supervision. Mother was physically unable to care for J.H., as she
had suffered a stroke, which left half of her body paralyzed. Because of her stroke,
mother had placed the responsibility of J.H.’s care on Danys, her oldest adult-son,
who was nineteen years old at the time, and he lacked the maturity and the
understanding of DFPS’s concerns to keep J.H. safe and unharmed. While in
5
mother’s care, J.H. had been put at risk of being hit, injured, or killed because he had
been able to leave mother’s apartment unsupervised and cross a main street into
oncoming traffic. J.H. had been allowed to “roam[] outside of” mother’s apartment
for several hours without mother or a caregiver knowing his whereabouts. Once J.H.
returned home, mother struck him with a cane in his face.
DFPS Caseworker Cherry
DFPS caseworker Jamesha Cherry testified that J.H. was placed with foster
parents that wanted to adopt him. J.H. was doing well in his foster parents’ home.
He was in kindergarten and was adjusting to his new school. J.H. spoke both English
and Spanish, and his Spanish-language skills had improved in his placement with
his foster parents. J.H.’s kindergarten class was a bilingual class. Cherry explained
that J.H. was good at math and was very smart. Cherry noted that when J.H. first
entered DFPS’s care, he was timid and shy, but now he was “super hyper, super
loving” and a “very good boy.”
According to Cherry, when J.H. entered DFPS’s care, he had a speech delay.
He could not speak English or Spanish. J.H. spoke “gibberish.” While in DFPS’s
care, J.H. participated in speech therapy services, and his speech had improved. He
was now able to understand what was being asked of him and was able to identify
things. He spoke “very well.” J.H. did not receive speech therapy services while he
was in mother’s care.
6
Cherry also testified that before J.H. entered DFPS’s care, he had “never
brushed his teeth”; they were rotten and decaying. J.H. had not been receiving dental
care while in mother’s care, and J.H.’s medical records showed that mother had
neglected his dental care for years.8 Cherry also noted that J.H. had not received any
immunizations while in mother’s care. And mother did not give a reason for her
failure to vaccinate J.H. While in DFPS’s care, J.H. had “received extensive dental
work.” He had “received caps on many teeth and silver caps.” His dental work
required medical sedation. In his home with his foster parents, J.H.’s dental hygiene
had improved, and he now “kn[ew] how to brush his teeth.”
As to his current placement, Cherry explained that J.H. was placed with a
couple that was married. J.H.’s foster parents were bilingual, and the family had
two dogs. J.H.’s foster father worked at a chemical plant, and J.H.’s foster mother
was a teacher. J.H. attended the same school where his foster mother taught. There
were no other children in the home. According to Cherry, there were no concerns
about the foster parents’ home, and DFPS’s goal was for J.H. to be adopted by his
foster parents.
As to mother, Cherry testified that mother had received a Family Service Plan
(“FSP”), but she had not completed its requirements. She had not completed her
8
The trial court admitted into evidence copies of J.H.’s medical records related to the
dental treatment he received while in DFPS’s care.
7
psychiatric evaluation, parenting classes, or individual counseling. Mother was
unsuccessfully discharged from individual counseling because she did not attend her
sessions. Mother also failed to maintain contact with DFPS. Cherry was never given
a phone number to contact mother; she only received contact information for
mother’s oldest adult-son Danys. Although mother had received an extension in the
case to “allow [her] some additional time” to complete her FSP, at the time of trial,
she still had not completed its requirements.
Cherry further noted that mother had been allowed to complete the
requirements of her FSP virtually, and the services mother was required to
participate in were conducted in Spanish. According to Cherry, mother did complete
her psychological evaluation, she had not engaged in any criminal activity,9 and she
had attended court hearings in the case—all of which were requirements of her FSP.
Cherry expressed concern about mother’s support system, which consisted of
her two adult sons—Danys, who, at the time of trial, was about twenty years old and
Romero, who, at the time of trial, was about eighteen years old.10 Danys and Romero
“work[ed] pretty much all day every day,” which made it difficult for them to
provide mother with support. Before J.H. was removed from mother’s care, DFPS
9
Cherry testified that, to her knowledge, mother did not have any “past criminal
history.”
10
We note that witnesses testified differently as to Danys’s and Romero’s ages at the
time of trial.
8
“tr[ied] to work with [Danys, who] was [also living] in the home [with mother and
J.H.] to alleviate the concern[s]” about J.H. being inadequately supervised, but that
effort was not successful.
As to mother’s home, Cherry explained that, at the time of trial, mother lived
with her two adult sons, Danys and Romero. Danys’s girlfriend also lived in the
apartment along with her and Danys’s child. Cherry did not believe that Danys,
Romero, and Danys’s girlfriend would be able to help mother take care of J.H. if he
was returned to her care because Danys and Romero were “always gone to work”
and Danys’s girlfriend had recently had her child and “ha[d] not expressed any desire
to help care for” J.H. Neither Danys nor Romero had designated anyone in the
family who would be responsible for J.H. if he was returned to mother’s care. Cherry
stated that mother could not care for herself without the help of Danys and Romero.
As to the apartment mother was living in with Danys and J.H. when J.H. was
removed from mother’s care, Cherry stated that it had broken glass on the floor and
J.H. was seen barefoot in the apartment.
Cherry also testified that about three months before J.H. entered DFPS’s care,
mother had a stroke, which left her paralyzed on the left side of her body. At the
beginning of the case, mother used a cane to walk. Although, at the time of trial,
mother no longer used a cane, she still “walk[ed] fairly slow[ly].” Further, as a result
of her stroke, mother “c[ould] only talk so much.” Mother was not taking any
9
medications or seeking any sort of treatment or therapy to help her recover from her
stroke. She took medications for diabetes, but according to mother, “she[] [was] fine
and she d[id] not need anything to help with her aftermath [from] the stroke.”
Because of mother’s health status, Cherry was concerned about mother’s ability “to
keep up with [J.H.] because he [was] super active and super hyper.” Cherry stated
that mother’s health status prevented her from being able to run after J.H. and
prevented her from being able to take J.H. to school.
As to mother’s visits with J.H. during the pendency of the case, Cherry
testified that mother missed some visits with J.H. For instance, she missed a
scheduled visit with J.H. on February 8, 2021, and mother arrived late for her visit
with J.H. on February 22, 2021. During the February 22, 2021 visit, mother was
“not good emotionally” and cried extensively. Mother arrived late to her visit with
J.H. on March 8, 2021, and she was “very emotional” during that visit. Mother did
not attend her scheduled visit with J.H. on March 22, 2021, and DFPS did not receive
notice from mother that she would not be attending that visit. On June 21, 2021,
mother was thirty-five minutes late to her visit with J.H. And mother did not attend
her scheduled visit with J.H. on October 25, 2021. Mother attended her visits with
J.H. on November 8, 2021 and November 22, 2021. But, at those visits, mother “just
kind of looked” at J.H.; she did not speak to him. She “just looked at him.”
10
Cherry further testified that mother attended a visit with J.H. on February 7,
2022. Mother came to a visit with “an unknown male.” During the visit, J.H. “just
sat at [a] table while [mother] and the unknown male had a conversation.” Mother
did not attend her scheduled visit with J.H. on April 25, 2022.
Cherry, when asked about mother’s interaction with J.H. during her visits,
noted that generally mother “would either look at him or just touch him” and J.H.
“would eat during the visits” and “that[] [was] pretty much it.” Mother would not
speak to J.H., but J.H. would speak to mother and “give her a hug.” J.H. recognized
mother as his mother. Cherry also explained that if Danys attended a visit along
with mother, he would speak to J.H., but “most of the time he would be on his
[cellular] [tele]phone.” When Romero attended visits with mother, he would play
with J.H. J.H. talked to Danys and Romero during visits, but he spoke mostly in
English, and they did not understand him. J.H. was happy to see Danys and Romero
at visits.
Cherry requested, on behalf of DFPS, that the trial court terminate mother’s
parental rights to J.H. based on mother’s failure to complete her FSP and her
endangerment of J.H. Cherry noted that J.H. had been removed from mother’s care
after J.H. had “g[otten] out [of mother’s apartment] multiple times unattended” and
“cross[ed] main streets” of traffic. One incident happened in October 2020 and a
11
second incident occurred in November 2020. And mother had not acknowledged
any responsibility for those incidents.
As to the November 25, 2020 incident, Cherry explained that J.H., who was
about four years old at the time, “g[ot] out” of mother’s apartment and “went up to
a store and stole an ice cream.” Mother was not able to “get him” once he got out
of the apartment. After a third party brought J.H. home, mother “struck [him] with
a cane.”11
Despite this occurrence, mother had not provided DFPS’s “with concrete steps
to alleviate” the concern about J.H. having been previously able to leave mother’s
apartment unsupervised. DFPS was concerned about mother’s ability to supervise
J.H. so that he did not “run out of the house” again if he was returned to her care.
Cherry did not believe that mother understood why J.H. entered DFPS’s care and
mother had not made any progress “as far as being able to care for” J.H. According
to Cherry, mother was unable to care for J.H. on her own; she could not play with
him, throw a ball with him, or walk to the park with him. Mother spent the majority
of her time sitting and was unable to chase after J.H. if needed.
Child Advocates Representative Gonzalez
Child Advocates, Inc. (“Child Advocates”) representative Esther Gonzalez
testified that it was in the best interest of J.H. for mother’s parental rights to be
11
Cherry noted that J.H. did not have any visual marks from being struck in the face.
12
terminated and for J.H. to be adopted by his foster parents because J.H. was doing
well in his foster parents’ home and his foster parents were taking good care of him.
Gonzalez did not believe that mother was capable of providing the same level of care
to J.H.
Gonzalez explained that when J.H. entered DFPS’s care he was not clean and
his teeth were “rotten.” But, while in DFPS’s care, J.H.’s speech had improved and
his medical needs had been addressed. At the time of trial, J.H. had been living with
his foster parents for about two months, and Gonzalez described his placement with
his foster parents as an adoptive placement for J.H.
As to mother, Gonzalez testified that mother was unable to communicate with
her; when Gonzalez tried to asked mother questions, mother did not appear to
understand. Mother had failed to attend in-person individual counseling sessions
that mother had requested be set up by DFPS because she was having difficulty
attending her counseling sessions virtually. Because mother had not participated in
counseling, she had not been able to address the reasons that J.H. had entered DFPS’s
care. If J.H. was returned to mother’s care, Gonzalez did not think that mother, who
did not drive, would be able to take J.H. to the doctor on her own or that she would
be able to get J.H. to school. While J.H. had been in DFPS’s care, mother had not
asked about J.H.’s health or dental hygiene.
13
The last time that mother saw J.H. she appeared happy to see him, and J.H.
appeared happy to see her. But during the visit mother “just s[at] there.” Romero
and J.H. played with cars during the visit, and Romero got J.H. snacks from the
vending machine. Romero and J.H. appeared to have a good relationship. Gonzalez
noted that during another visit that she observed, mother was “very upset and crying”
and Danys was “on the [tele]phone.” And at another visit, mother sat and watched
J.H., but there was “little interaction between them,” and Danys spent most of the
visit on his cellular telephone.
Gonzalez testified that at the time of trial, mother was living in an apartment
with Danys, Romero, Danys’s girlfriend, and Danys’s infant child, and Romero. As
to potential supervision for J.H. should he be returned to mother’s care, Danys and
Romero had spoken to Gonzalez about having Danys’s girlfriend approved as a
babysitter for J.H. But Gonzalez noted that the girlfriend had an infant child, who
was ten months old, and she also babysat two other children who were toddlers.
Notably, no one in mother’s family had identified themselves as the person who
would be a primary caretaker for J.H., i.e., the person who would be “the full-time
responsible person” for J.H., if he was returned to mother’s care. Gonzalez did not
believe that mother was capable of being J.H.’s primary caretaker due to her previous
stroke, and mother had failed to provide any medical releases to DFPS or Child
Advocates to allow them to ascertain whether mother had received any treatment to
14
address her limitations following the stroke. Gonzalez also noted that Danys, who
was about twenty or twenty-one years old at the time of trial, and Romero, who was
about eighteen years old at the time of trial, both worked Monday through Saturday,
so they would not be able to serve as a primary caretaker for J.H.
Child Advocates Representative Delgado
Child Advocates representative Mabel Delgado testified that she had visited
J.H. in his current placement with his foster parents. The foster parents had a
ranch-style house on acreage, with a large front yard. The home had three or four
bedrooms, a dining room, kitchen, and family room. The property had a fence that
encircled the entire property. The foster parents had two dogs, and J.H. was the only
child living in the home.
Delgado further explained that J.H.’s foster mother was a teacher at the same
school that J.H. attended. J.H. appeared to be happy at school, but he struggled in
his Spanish-only-speaking class. J.H.’s foster mother said that she and J.H.’s foster
father were going to place him in an English-only-speaking class in the upcoming
school year and she was going to work with J.H. during the summer to make sure
that he was on target. His foster mother wanted to make sure that J.H. did not fall
behind in school. J.H. told Delgado that he was sad that it was summer and he was
not at school.
15
Delgado testified that J.H. was happy and comfortable in the home with his
foster parents. He was very talkative and “bounc[ed] around” during Delgado’s
most recent visit with him. Delgado spoke to J.H. in both Spanish and English, and
J.H. responded to her in either Spanish or English. J.H. played soccer. His foster
parents had flash cards, writing tablets, books, and toys for J.H. J.H. told Delgado
that his foster mother helped him brush his teeth.
According to Delgado, J.H. interacted with his foster parents “really well.”
He referred to his foster mother as “mom” and his foster father as “dad.” He sat on
his foster father’s lap during Delgado’s visit with him.
Delgado noted that J.H. seemed calmer in his foster parents’ care. His foster
parents stated that they had been working with him on manners and sitting at the
table to eat.
Mother’s oldest adult-son
Danys, who was about twenty-one years old at the time of trial, testified that
mother took care of him while he was growing up as well as his siblings. When
Danys was young, mother worked and paid for a babysitter to take care of him and
his siblings, but when Danys’s sister became old enough, she took care of Danys and
his siblings while mother worked. Mother “always worked,” but she prepared lunch
and dinner for him and took him to doctor appointments. Mother “educate[d]
[Danys] to be good with other people and also [to] be polite . . . with those [people
16
who were] older.” In 2018, Danys moved to Houston, Texas from El Salvador to
find a job so that he had money for himself and money to give to mother. Danys
testified that he worked either five or six days a week, from 6:30 a.m. until 2:30 p.m.,
but on some days, he had to stay later than 2:30 p.m.
When J.H. was a baby and still living in El Salvador, mother took care of him,
but when J.H. turned eight months old, Danys’s sister began caring for J.H.
According to Danys, mother, and sometimes Danys’s sister, would take J.H. to the
doctor when he was sick.
At some point, when J.H. was about three years old, mother and J.H. moved
to the United States so that mother could live with “her partner” in Dallas, Texas.
J.H. lived with mother in Dallas. Mother moved to Houston to live with Danys after
she had a stroke in 2020. According to Danys, mother spent “20 days in a coma”
and was “unable to speak.” When mother moved to Houston, she was doing “very
poorly.” She was unable to walk or talk and could not bathe independently. Mother
did not receive any rehabilitation services following her stroke, and she did not
“receive any medical treatment . . . in Houston for the effects of her stroke.”
Danys testified that by the time of trial mother’s condition had improved. She
“talk[ed] better” and no longer needed “her walking stick or [her] wheelchair.” But
she still had difficult moving one of her hands; she could move her hand, but not
very well. Mother was able to understand sentences and could go outside her
17
apartment alone. She could dress herself, put on makeup, and walk to buy food from
a nearby store. According to Danys, mother did not know how to drive a car.12
Mother only took medication for diabetes.
As to his living situation, Danys stated that he lived with his girlfriend and
their child along with mother and Romero13 in an apartment. The apartment had two
bedrooms. The goal was to have mother and J.H. live in one bedroom and Danys,
his girlfriend, and their child would live in the other bedroom. Danys stated that the
family could buy a bed so that J.H. and mother had their own beds in which to sleep.
Romero would sleep on the couch. According to Danys, his girlfriend stayed at
home caring for their child and she was willing to take care of J.H. But Danys’s
girlfriend also watched one or two other children and took care of mother while
Danys was at work. Danys was responsible for paying rent for the apartment. There
were not locks on the door to the apartment, but if J.H. was returned to mother’s
care, the family would put a lock on the door so that J.H. would not be able to get
out.
Danys also explained that previously, before J.H. entered DFPS’s care, J.H.
had gotten out of the apartment and a “safety plan” was put in place under which
12
Danys stated that he did drive a car, but he did not have a driver’s license. Romero,
mother’s second-oldest adult-son, could also drive a car, but he did so without a
driver’s license.
13
Danys explained that Romero, who was nineteen years old at the time of trial,
worked from 7:00 a.m. to 8:00 p.m.
18
Danys was supposed to supervise J.H. and not leave him alone with mother. But in
November 2020, when J.H. escaped the apartment for a second time, Danys had left
J.H. with mother while he went to work because mother said that she “was feeling
lonely and she wanted to be with [J.H.].” Danys trusted mother to supervise J.H.
that day, but J.H. got out of the apartment alone because he was able to unlock the
door. J.H. was not wearing a shirt or socks. Although Danys’s girlfriend was also
at the apartment when J.H. got out unsupervised, she was pregnant and was “unable
to walk.” Danys’s girlfriend called him to tell him that J.H. had left the apartment.
Mother did not call him because she could not speak very well.
As to the condition of J.H.’s teeth when J.H. entered DFPS’s care, Danys
stated that they “bec[a]me black” because mother had been “giving him some iron
pills” and his teeth were “not washed well.” Danys bought J.H. a toothbrush to brush
his teeth with, but the “darkness” did not come off or get better. J.H.’s teeth were
“very bad” and Danys knew that J.H. needed to see a dentist, but he was unable to
take him to see one. No one in the family ever took J.H. to the dentist.
Danys described J.H. as a hyperactive child and stated that they used to play
football and go on walks. He and J.H. loved each other. Danys did not attend all
visits with J.H. because he had to work. Danys had difficulty communicating with
J.H. at visits because J.H. only wanted to speak English. Mother and J.H. would hug
at the visits, but when mother would get emotional, J.H. would get emotional as well.
19
As to mother’s FSP, Danys stated that he was aware that mother was required
to complete certain requirements listed on her FSP. But he had difficulty helping
her because he spent all day working. And mother had a difficult time
communicating on the telephone.
According to Danys, if J.H. was returned to mother’s care, J.H. would live in
a bedroom with mother, and Danys’s girlfriend would supervise J.H. and take him
to school. Mother could not supervise J.H. alone without additional help. Danys’s
girlfriend was willing to help with J.H. “because there[] [was] not another person
that could do it.” Either Danys or Romero would be responsible for taking J.H. to
doctor appointments or dentist appointments. Mother was unable to live
independently and could not take J.H. to appointments by herself.
Mother
Mother testified that she had raised five children by herself and she had never
hit J.H. At the time of trial, mother lived with her two adult sons, Danys and
Romero, as well as Dany’s girlfriend and Danys’s child. J.H. had a good relationship
with Danys and Romero, and they had “engage[d] in activities together.” According
to mother, Danys could take care of J.H. if he was returned to mother’s care or
Danys’s girlfriend could take care of J.H. Mother did not have any other family
members that could help care for J.H.
20
As to her visits with J.H., mother stated that J.H. could not speak Spanish and
she could not speak English, so she could not communicate with him through
speaking. But mother acknowledged that J.H.’s foster parents spoke Spanish to him
as did the Child Advocates representative. J.H. liked having visits with Danys and
Romero. Mother’s most recent visit with J.H. was on May 27, 2022.
As to the reason J.H. entered DFPS’s care, mother acknowledged that J.H.
“ran away” from her apartment and he was in danger when he ran “into traffic.”
There were two incidents where J.H. left mother’s apartment unsupervised.
According to mother, she saw J.H. open the door and run out of the apartment, but
she could not walk. Mother notified Danys’s girlfriend who then called Danys.
Mother testified that she had received an FSP, but she had to rely on Danys to
take her to complete certain services. She could not take the bus alone.
As to her limitations related to her health status, mother stated that, at the time
of trial, she could go shopping and buy food by herself at a store that was not far
away from her apartment. And, according to mother, her condition had improved.
But she acknowledged that she needed the help of her attorney to walk in the
courtroom. Mother did not know the address of the apartment that she lived at or
the name of the apartment complex where she lived. Mother admitted that she would
need help caring for J.H. if he was returned to her care. She did not know what grade
21
J.H. would be entering in the fall. Mother did not receive medical services following
her stroke.
As to J.H., mother acknowledged that his care and safety were the most
important things. Mother did not take J.H. to the dentist or to the doctor when he
was previously in her care.
Mother’s FSP
The trial court admitted into evidence a copy of mother’s FSP. The FSP states
that DFPS wanted J.H. to be happy and reach his fullest potential in a safe and stable
environment free from hazards, narcotics, and violence.
As to J.H., the FSP states that he had a good relationship with Danys. As to
mother, the FSP states that she previously suffered a stroke that left half of her body
paralyzed. Mother lived with Danys, and it was unknown if she had any previous or
current substance abuse issues.
The FSP further states that mother, while J.H. was in her care, “continue[d] to
leave [J.H.] without . . . appropriate parental care or adult supervision” placing him
at risk of danger and possible neglect. Mother needed to be able to show that J.H.
would be “in [the] protective care and supervision of adults he fe[lt] safe and
comfortable with” and that J.H. would be disciplined without the use of physical
harm.
22
Under her FSP, mother was required to, among other things: (1) maintain
contact with her DFPS caseworker, including participating in monthly face-to-face
visits with the DFPS caseworker; (2) obtain and maintain safe and stable housing
and provide proof of housing; (3) maintain a home that was free of hazards and
unsanitary conditions; (4) maintain regular employment or financial stability and
provide proof of income in the form of paycheck stubs to the DFPS caseworker;
(5) gain and maintain a reliable support system and update the DFPS caseworker
with her support system information; (6) participate in a psychosocial evaluation and
follow all recommendations of the evaluation; (7) sign a release of information for
DFPS; (8) refrain from engaging in criminal activity; and (9) attend all court
hearings and permanency conferences.
May 2022 Permanency Report
The trial court admitted into evidence a copy of a May 2022 permanency
report filed by DFPS. As to J.H., the permanency report states that he had been in
his current adoptive placement with his foster parents since March 2022. J.H. was
adjusting to his foster parents’ home, and he was eating and sleeping well. He was
a bright, sweet, and happy child, who enjoyed playing with toys and meeting new
people. J.H. was hyperactive and learning to follow the rules when he did not get
his way. J.H. was the only child living in his foster parents’ home. J.H. had attended
medical and dental appointments while in the care of his foster parents.
23
Further, the permanency report states that J.H. was attending kindergarten and
he was adjusting well to his school and learning a lot. J.H. was in a bilingual class
at school. He was learning Spanish at school and in speech therapy at home, but he
preferred to speak English. Based on his mental health assessment, it was
recommended that J.H.’s caregivers provide him with a nurturing, structured, and
consistent environment. J.H.’s caregivers should provide age-appropriate play and
learning activities to promote J.H.’s developmental progress. J.H. should attend
dental appointments regularly to promote and maintain good dental hygiene and
health. J.H. did not take any medications.
As to mother, the permanency reports states that she missed a scheduled visit
with J.H. on February 8, 2021, and she did not notify the DFPS caseworker that she
would not be attending the visit. Mother and Danys arrived late for a visit with J.H.
on February 22, 2021. Mother, Danys, and Danys’s girlfriend arrived late to a visit
with J.H. on March 8, 2021, and on March 22, 2021, mother did not show up for her
visit with J.H. and did not notify the DFPS caseworker that she would not be
attending the visit. Mother and Danys attended a visit with J.H. on April 12, 2021.
On May 10, 2021, mother and Danys attended a visit with J.H., but mother did not
speak to J.H. much. Mother and Danys gave J.H. something to eat and drink and the
visit “went well.” On June 7, 2021, mother and Danys attended a visit with J.H., but
mother did not speak much to J.H. Again, mother and Danys gave J.H. something
24
to eat and drink. On June 21, 2021, mother showed up to her visit with J.H. more
than thirty-minutes late, and she did not say much. On July 5, 2021, mother and
Danys attended a visit with J.H., but mother did not speak much to J.H. Mother and
Danys gave J.H. something to eat and drink and the visit “went well.” On July 19,
2021, mother, Danys, and Romero attended a visit with J.H. On August 9, 2021,
August 23, 2021, September 27, 2021, and October 11, 2021, mother attended visits
with J.H. Mother cancelled her visit with J.H. on October 25, 2021 because Danys
had to work. During her two visits with J.H. in November 2021, mother did not
speak much to J.H., but just looked at him. On January 24, 2022, mother attended a
visit with J.H., but mother cried throughout the visit. While mother cried, J.H.
“rub[bed] her and sa[id] it[’]s ok.” At her February 7, 2022 visit with J.H., mother
came with an unknown male. Mother and the unknown male did not engage with
J.H. and instead had their own conversation. Mother and Danys arrived late to their
visit with J.H. on February 28, 2022. Mother and Romero attended a visit with J.H.
on April 11, 2022, but mother missed her visit with J.H. on April 25, 2022.
As to mother’s FSP, the permanency report states that mother completed her
psychological evaluation on June 4, 2021, but mother did not complete any of the
recommendations from her evaluation. On March 8, 2022, mother completed a
psychosocial evaluation, which recommended that mother participate in individual
counseling. On April 21, 2022, mother was unsuccessfully discharged from
25
individual counseling because of her consistent “no-shows.” Mother did not
complete the required psychiatric evaluation.
Child Advocates Report
The trial court admitted into evidence a copy of a May 2022 Court Report by
Child Advocates (the “Child Advocates report”). The Child Advocates report
recommended that DFPS be given permanent managing conservatorship of J.H. and
that mother’s parental rights be terminated. According to the report, on November
25, 2020, DFPS received an allegation of neglectful supervision of J.H. by mother.
J.H. ran out of mother’s apartment and sat on the curb outside for hours in front of
the apartment complex on a main street. J.H. then ran to a store across the main
street and stole an ice cream. J.H. went back across the main street in front of
oncoming traffic. A third party was able to stop J.H. from crossing the main street
and walked him back to mother’s apartment. The third party returned J.H. to mother
and saw mother slap J.H. with a cane.
The Child Advocates report further notes that before the November 25, 2020
incident, DFPS had previously received an allegation of neglectful supervision of
J.H. by mother. Related to that incident, Danys left J.H. with mother when he went
to work, and J.H. left mother’s apartment while he was under mother’s supervision.
Because of mother’s stroke, she had lost mobility in half of her body, and although
she attempted to go after J.H., she was not physically able to do so. As a result,
26
Danys and mother signed a “safety plan stating that [J.H.] w[ould] no longer be left
unsupervised with [mother]” and that Danys would pay for a babysitter to watch J.H.
while Danys was at work.
As to mother, the Child Advocates report states that she, as part of her FSP,
was required to maintain safe and stable housing, complete a psychological
evaluation and follow its recommendations, and establish and maintain a strong
support system. Mother completed a psychological evaluation in June 2021, and she
was diagnosed with major depressive disorder. As a result of the evaluation, it was
recommended that mother undergo an evaluation to determine if medication
management was appropriate to address her symptoms and that mother attend
individual counseling “to address past traumas, improve mood regulation and
distress tolerance, and provide support as she navigate[d] recovering from [her]
stroke.” It was also recommended that mother participate in parenting classes and
occupational therapy to help her recover from paralysis related to her stroke. Mother
had not followed the recommendations of her psychological evaluation.
On March 8, 2022, mother completed a psychosocial evaluation, which
recommended that she participate in individual counseling and a psychiatric
assessment. Mother was unsuccessfully discharged from individual counseling
because she repeatedly missed counseling sessions, and she had not completed her
psychiatric assessment.
27
The report further states that mother relied on Danys for financial support.
Mother lived with Danys, Romero, Danys’s girlfriend, and Danys’s infant child in
an apartment. After mother’s stroke, Danys appeared to take over parental
responsibility for J.H. Although representatives from Child Advocates had
attempted to speak with mother about the status of the case and permanency options
for J.H., mother had limited speech due to her stroke and she had difficulty
communicating verbally. Mother did not provide contact information for any
medical doctors treating her limitations related to her stroke, and it was unknown
whether mother was receiving treatment to help her recover from the paralysis she
sustained as a result of her stroke.
As to J.H.’s current placement, Child Advocates recommended that J.H.
remain in his current placement because his foster parents were meeting his needs
and he appeared to be comfortable in the home. J.H. was eating and sleeping well,
and he had adjusted to school. J.H.’s foster parents had expressed a desire to adopt
J.H.
Sufficiency of Evidence
In her first, second, and third issues, mother argues that the trial court erred in
terminating her parental rights to J.H. because the evidence is legally and factually
insufficient to support the trial court’s findings that that mother knowingly placed,
or knowingly allowed J.H. to remain, in conditions or surroundings which
28
endangered his physical or emotional well-being, she failed to comply with the
provisions of a court order that specifically established the actions necessary for her
to obtain the return of J.H., and termination of her parental rights was in the best
interest of J.H. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (O), (b)(2).
A parent’s right to “the companionship, care, custody, and management” of
her child is a constitutional interest “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted). The
United States Supreme Court has emphasized that “the interest of [a] parent[] in the
care, custody, and control of [her] child[] . . . is perhaps the oldest of the
fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville, 530
U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that “[t]his
natural parental right” is “essential,” “a basic civil right of man,” and “far more
precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
(internal quotations omitted). Consequently, “[w]e strictly construe involuntary
termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex.
2012).
Because termination of parental rights is “complete, final, irrevocable and
divests for all time that natural right . . . , the evidence in support of termination must
be clear and convincing before a court may involuntarily terminate a parent’s rights.”
Holick, 685 S.W.2d at 20. Clear and convincing evidence is “the measure or degree
29
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 ANN.
§ 101.007; see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the
standard of proof is “clear and convincing evidence,” the Texas Supreme Court has
held that the traditional legal and factual standards of review are inadequate. In re
J.F.C., 96 S.W.3d at 264–68.
In conducting a legal-sufficiency review in a termination-of-parental-rights
case, we must determine whether the evidence, viewed in the light most favorable
to the finding, is such that the fact finder could reasonably have formed a firm belief
or conviction about the truth of the matter on which DFPS bore the burden of proof.
Id. at 266. In viewing the evidence in the light most favorable to the finding, we
“must assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so,” and we “should disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” In
re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However,
this does not mean that we must disregard all evidence that does not support the
finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we
must also be mindful of any undisputed evidence contrary to the finding and consider
that evidence in our analysis. Id. If we determine that no reasonable trier of fact
could form a firm belief or conviction that the matter that must be proven is true, we
30
must hold the evidence to be legally insufficient and render judgment in favor of the
parent. Id.
In conducting a factual-sufficiency review in a termination-of-parental-rights
case, we must determine whether, considering the entire record, including evidence
both supporting and contradicting the finding, a fact finder reasonably could have
formed a firm conviction or belief about the truth of the matter on which DFPS bore
the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We should
consider whether the disputed evidence is such that a reasonable fact finder could
not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96
S.W.3d at 266. “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.” In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (internal quotations omitted).
In order to terminate the parent-child relationship, DFPS must establish, by
clear and convincing evidence, one or more of the acts or omissions enumerated in
Texas Family Code section 161.001(b)(1) and that termination of parental rights is
in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b). Both
elements must be established, and termination may not be based solely on the best
interest of the child as determined by the trier of fact. See id.; Tex. Dep’t of Human
31
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Notably though, “[o]nly one
predicate finding under section 161.001[(b)](1) is necessary to support a judgment
of termination when there is also a finding that termination is in the child’s best
interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
A. Endangerment
In portions of her first and second issues, mother argues that the evidence is
legally and factually insufficient to support the trial court’s termination of her
parental rights to J.H. under Texas Family Code section 161.001(b)(1)(D) because
although J.H., while in mother’s care, was able to “unlock the door to the family’s
apartment and make an exit,” “[n]o harm ever came to J.H.”; there was no evidence
of narcotics use by mother or any family member living with J.H.; and there was “no
history of abuse by anyone.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(D).
A trial court may order termination of the parent-child relationship if it finds
by clear and convincing evidence that a parent has “knowingly placed or knowingly
allowed [a] child to remain in conditions or surroundings which endanger[ed] [his]
physical or emotional well-being.” Id. To “endanger” means to expose the child to
loss or injury or to jeopardize his emotional or physical health. Boyd, 727 S.W.2d
at 533 (internal quotations omitted); Walker v. Tex. Dep’t of Fam. & Protective
Servs., 312 S.W.3d 608, 616 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)
(internal quotations omitted). A child is endangered when the environment creates
32
a potential for danger that the parent is aware of but consciously disregards. J.S. v.
Tex. Dep’t of Fam. & Protective Servs., 511 S.W.3d 145, 159 (Tex. App.—El Paso
2014, no pet.); In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.]
2005, no pet.). Endangerment encompasses “more than a threat of metaphysical
injury or the possible ill effects of a less-than-ideal family environment.” Boyd, 727
S.W.2d at 533. However, it is not necessary that the endangering conduct be directed
at the child or that the child actually suffer injury. Id.
Texas Family Code section 161.001(b)(1)(D) focuses on a child’s
surroundings and environment and requires a showing that the environment in which
the child was placed endangered his physical or emotional health. Doyle v. Tex.
Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso
2000, pet. denied); see also In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort
Worth 2009, no pet.); In re S.M.L., 171 S.W.3d at 477. “Environment” refers to the
acceptability of the child’s living conditions as well as the conduct of a parent or
other person in the home because the conduct of a parent or other person can create
an environment that endangers the child’s physical or emotional well-being. In re
S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)
(internal quotations omitted); see also In re I.L.L., No. 14-09-00693-CV, 2010 WL
4217083, at *6 (Tex. App.—Houston [14th Dist.] Oct. 26, 2010, no pet.) (mem. op.);
In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). For instance,
33
inappropriate, unlawful, abusive, or violent conduct by a parent or other person
living in the child’s home is a part of the “conditions or surroundings” of the child’s
home and may produce an environment that endangers his physical or emotional
well-being. In re K.C.F., No. 01-13-01078-CV, 2014 WL 2538624, at *12 (Tex.
App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.) (internal quotations
omitted); In re M.R.J.M., 280 S.W.3d at 502 (internal quotations omitted); In re
J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Thus, although
Texas Family Code section 161.001(b)(1)(D) focuses on a child’s living
environment, parental conduct may produce an endangering environment. See In re
A.A.H., Nos. 01-19-00612-CV, 01-19-00748-CV, 2020 WL 1056941, at *9 (Tex.
App.—Houston [1st Dist.] Mar. 5, 2020, pet. denied) (mem. op.).
The relevant time frame for establishing that a parent knowingly placed, or
allowed a child to remain, in conditions or surroundings which endangered his
physical or emotional well-being is prior to the child’s removal. In re O.R.F., 417
S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied); In re J.R., 171 S.W.3d
558, 569 (Tex. App.—Houston [14th Dist.] 2005, no pet.). And a fact finder may
infer from a parent’s past conduct endangering the well-being of the child that
similar conduct will recur in the future. A.S. v. Tex. Dep’t of Fam. & Protective
Servs., 394 S.W.3d 703, 712 (Tex. App.—El Paso 2012, no pet.); see also In re D.S.,
333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.) (trier of fact may measure
34
parent’s future conduct by his past conduct). Notably, DFPS does not need to
establish that a parent intended to endanger a child to support termination based on
endangerment. In re A.A.H., 2020 WL 1056941, at *9. Texas Family Code section
161.001(b)(1)(D) permits termination based upon a single act or omission. Jordan
v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
According to DFPS investigator Benitez, on November 25, 2020, J.H., who
was four years old at the time, got out of mother’s apartment unsupervised and sat
on the street curb in front of the apartment complex for hours. He also ran across a
main street through oncoming traffic to a store and stole an ice cream. He began
walking back across the main street in front of oncoming traffic, until a third party
stopped him and helped him walk back across the street. The third party then walked
J.H. back to mother’s apartment and knocked on the door. Mother told the third
party that J.H. was “always running out.” When J.H. was back in mother’s care, the
third party saw mother slap J.H. “across the face with her cane aggressively.”14
Mother admitted that J.H. ran out of the apartment on November 25, 2020, while he
was under her supervision.
During her investigation, Benitez determined that the above-described
incident was not the first time that J.H. had gotten out of mother’s apartment
14
DFPS caseworker Cherry gave similar testimony when describing the November
25, 2020 incident.
35
unsupervised, but rather J.H. had managed to leave the apartment unsupervised on
multiple occasions.15 J.H. had been allowed to “roam[] outside of” mother’s
apartment for several hours without mother or a caregiver knowing his whereabouts.
Mother testified that there were two incidents where J.H. left her apartment
unsupervised. And mother acknowledged that J.H. “ran away” from her apartment
and he was in danger when he ran “into traffic.” Mother saw J.H. open the door and
run out of the apartment, but she could not walk so she did not follow him.
A parent’s failure to properly supervise her young child endangers the child’s
physical or emotional well-being. See In re A.O., No. 02-21-00376-CV, 2022 WL
1257384, at *10–11 (Tex. App.—Fort Worth Apr. 28, 2022, pet. denied) (mem. op.)
(parent’s failure to supervise her child created dangerous condition for child); In re
J.H., No. 07-21-00059-CV, 2021 WL 2693284, at *3 n.4 (Tex. App.—Amarillo June
30, 2021, pet. denied) (mem. op.); In re A.K.T., No. 01-18-00647-CV, 2018 WL
6423381, at *14 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, pet. denied) (mem.
op.). And evidence that a parent has failed to supervise her young child supports the
trial court’s finding that the parent “knowingly placed or knowingly allowed [her]
child to remain in conditions or surroundings which endanger[ed] [his] physical or
15
DFPS caseworker Cherry similarly testified that J.H., before entering DFPS’s care,
had “g[otten] out [of mother’s apartment] multiple times unattended” and “cross[ed]
main streets” of traffic. Mother had not acknowledged any responsibility for those
incidents.
36
emotional well-being.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(D); see also In
re I.F., No. 01-22-00375-CV, 2022 WL 16640627, at *5 (Tex. App.—Houston [1st
Dist.] Nov. 3, 2022, no pet.) (mem. op.) (holding evidence legally and factually
sufficient to support trial court’s finding that parent knowingly placed or knowingly
allowed her child to remain in conditions or surroundings that endangered her
physical or emotional well-being where parent left child unsupervised in hotel
room); In re L.B., No. 09-21-00224-CV, 2022 WL 174413, at *7 (Tex. App.—
Beaumont Jan. 20, 2022, no pet.) (mem. op.); In re M.B., No. 02-15-00128-CV, 2015
WL 4380868, at *13–15 (Tex. App.—Fort Worth July 16, 2015, no pet.) (mem. op.).
Further, a parent’s neglect of her child’s medical or dental needs endangers
the child. See In re J.H., 2021 WL 2693284, at *3 n.4; In re J.A.J., No.
04-20-00156-CV, 2020 WL 4929797, at *3 (Tex. App.—San Antonio July 29, 2020,
no pet.) (mem. op.) (medical neglect endangers a child’s physical well-being); In re
A.A.H., 2020 WL 1056941, at *12; In re P.E.W., 105 S.W.3d 771, 777 (Tex. App.—
Amarillo 2003, no pet.) (parent’s lack of attention to child’s medical needs is
evidence that may prove endangerment); see also In re L.C., 145 S.W.3d 790, 796
(Tex. App.—Texarkana 2004, no pet.) (“[e]ndanger” includes jeopardizing child’s
physical or emotional well-being (internal quotations omitted)). And evidence that
a parent has neglected her child’s medical or dental needs supports a trial court’s
finding that the parent “knowingly placed or knowingly allowed [her] child to
37
remain in conditions or surroundings which endanger[ed] [his] physical or emotional
well-being.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(D); see also In re E.A.D.,
No. 14-22-00025-CV, 2022 WL 2663981, at *5 (Tex. App.—Houston [14th Dist.]
July 11, 2022, no pet.) (mem. op.) (evidence of parent’s actions, including neglecting
child’s medical condition, supported trial court’s finding that parent knowingly
placed or knowingly allowed child to remain in conditions or surroundings that
endangered her physical or emotional well-being); In re J.H., 2021 WL 2693284, at
*3 n.4; In re N.P., No. 09-20-00218-CV, 2021 WL 203339, at *6–7 (Tex. App.—
Beaumont Jan. 21, 2021, pet. denied) (mem. op.) (evidence sufficient to support trial
court’s finding parent knowingly placed or knowingly allowed her child to remain
in conditions or surroundings which endangered her physical or emotional
well-being where record contained evidence of child’s unaddressed dental issues);
In re J.A.J., 2020 WL 4929797, at *2–3 (holding evidence legally and factually
sufficient to support trial court’s finding that parent knowingly allowed her children
to live in conditions and surroundings which endangered their physical and
emotional well-being where parent neglected children’s medical needs); In re
A.A.H., 2020 WL 1056941, at *13 (holding evidence legally and factually sufficient
to support trial court’s finding that parent knowingly allowed child to remain in
conditions that endangered her physical or emotional well-being where evidence
showed parent neglected medical needs of another child in home); In re I.W., No.
38
12-19-00027-CV, 2019 WL 2710275, at *8 (Tex. App.—Tyler June 28, 2019, pet.
denied) (mem. op.) (where evidence showed parent’s on-going failure to address
child’s therapeutic needs, scalp infection, dental issues, and developmental delays,
holding evidence sufficient to support trier of fact’s finding that parent knowingly
placed or knowingly allowed child to remain in conditions or surroundings which
endangered her physical or emotional well-being).
According to Benitez, when she saw J.H. three days after the November 25,
2020 incident, his teeth were brown and looked rotten, and it did not appear that he
had ever been to the dentist.16 Further, J.H. could not complete a full sentence when
she tried to speak with him.
DFPS caseworker Cherry similarly testified that while J.H. was in mother’s
care, he “never brushed his teeth” and they were rotten and decaying when he entered
DFPS’s care in November 2020. J.H. did not receive any dental care while he was
in mother’s care, and his medical records showed that mother had neglected his
dental care for years. J.H. also had not received any immunizations while in
mother’s care, and mother did not give Cherry a reason for her failure to vaccinate
J.H. Because J.H. had not received any dental care while in mother’s care, when he
16
Child Advocates representative Gonzalez also testified that when J.H. entered
DFPS’s care, his teeth were “rotten.”
39
entered DFPS’s care, he needed “caps on many of his teeth and silver caps.” And
his dental work required medical sedation.
Cherry also testified that when J.H. entered DFPS’s care, he could not speak
English or Spanish. He spoke “gibberish.” And while he had been in mother’s care,
he had not received any speech therapy services.
Danys, mother’s oldest adult-son, testified that when J.H. entered DFPS’s
care, his teeth were “black” because mother had given J.H. “iron pills” and J.H.’s
teeth were “not washed well.” Danys bought J.H. a toothbrush, but the “darkness”
did not come off or get better. According to Danys, J.H.’s teeth were “very bad”
and Danys knew that J.H. needed to see a dentist, but no one in the family ever took
J.H. to the dentist. Mother testified that she never took J.H. to the dentist or to the
doctor while he was in her care.
Additionally, evidence of unsanitary and dangerous conditions in a child’s
home as well as evidence that a parent has neglected her child’s physical condition
supports a trial court’s finding that the parent “knowingly placed or knowingly
allowed [her] child to remain in conditions or surroundings which endanger[ed] [his]
physical or emotional well-being.” See TEX. FAM. CODE ANN. § 161.001(b)(1)(D);
see also In re S.B., 597 S.W.3d 571, 584 (Tex. App.—Amarillo 2020, pet. denied)
(“Allowing children to live in unsanitary conditions and neglecting their physical
condition can constitute endangerment.”); In re L.S., No. 13-18-00632-CV, 2019
40
WL 1474521, at *7–8 (Tex. App.—Corpus Christi–Edinburg Apr. 4, 2019, pet.
denied) (mem. op.) (environment endangered child where parent’s apartment had
broken glass on floor and child was barefoot and dirty); In re E.W., No.
10-16-00132-CV, 2017 WL 4079713, at *5 (Tex. App.—Waco Sept. 13, 2017, no
pet.) (mem. op.) (considering cleanliness of children in holding evidence sufficient
to support finding parents placed or allowed children to remain in conditions
endangering their emotional or physical well-being); In re D.M., 452 S.W.3d 462,
469–70 (Tex. App.—San Antonio 2014, no pet.) (holding evidence legally and
factually sufficient to support trial court’s endangerment finding where parent
knowingly left child in unsanitary and dangerous conditions); In re A.T., 406 S.W.3d
365, 371–72 (Tex. App.—Dallas 2013, pet. denied) (poor hygiene may constitute
condition that endangers child’s physical and emotional well-being); In re C.M.W.,
No. 01-02-00474-CV, 2003 WL 579794, at *3–4 (Tex. App.—Houston [1st Dist.]
Feb. 27, 2003, no pet.) (mem. op.) (children were dirty, had poor hygiene, and
offensive body odors).
DFPS investigator Benitez stated that when she saw J.H. three days after the
November 25, 2020 incident, J.H.’s clothes were not clean, his hair was not combed,
and it appeared that J.H. did not bathe. As to mother’s apartment, Benitez stated that
it was cluttered. There was broken glass on the floor, and J.H. was barefoot in the
41
apartment.17 Child Advocates representative Gonzalez testified that J.H. was not
clean when he entered DFPS’s care. And Danys noted that when J.H. left mother’s
apartment on November 25, 2020, he was not wearing a shirt or socks.
Finally, we reiterate that inappropriate, unlawful, abusive, or violent conduct
by a parent is a part of the “conditions or surroundings” of the child’s home and may
produce an environment that endangers his physical or emotional well-being. In re
K.C.F., 2014 WL 2538624, at *12; In re M.R.J.M., 280 S.W.3d at 502 (internal
quotations omitted); In re J.T.G., 121 S.W.3d at 125; see also In re A.A.H., 2020
WL 1056941, at *9 (although Texas Family Code section 161.001(b)(1)(D) focuses
on a child’s living environment, parental conduct may produce an endangering
environment). And Texas Family Code section 161.001(b)(1)(D) permits
termination based upon a parent’s single act or omission. Jordan, 325 S.W.3d at
721.
DFPS investigator Benitez explained, related to the November 25, 2020
incident, that when the third party walked J.H. back to mother’s apartment, the third
party saw mother slap J.H. “across the face with her cane aggressively.”18 And when
Benitez saw J.H. three days later, she saw “marks on” J.H.’s face and “scratches over
17
DFPS caseworker Cherry also testified that mother’s apartment, where J.H. was
living before entering DFPS’s care, had broken glass on the floor and J.H. was seen
barefoot in the apartment.
18
DFPS caseworker Cherry gave similar testimony when describing the November
25, 2020 incident.
42
his body.” See In re I.W., 2019 WL 2710275, at *7 (abusive or violent conduct by
parent may produce environment that endangers child’s physical or emotional
well-being).
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude that the trial court could have formed a firm belief or conviction that
mother knowingly placed, or knowingly allowed J.H. to remain, in conditions or
surroundings which endangered his physical or emotional well-being. See TEX.
FAM. CODE ANN. § 161.001(b)(1)(D). And, viewing the evidence in a neutral light,
we conclude that a reasonable fact finder could have formed a firm belief or
conviction that mother knowingly placed, or knowingly allowed J.H. to remain, in
conditions or surroundings which endangered his physical or emotional well-being.
See id. Further, we conclude that the trial court could have reconciled any disputed
evidence in favor of finding that mother knowingly placed, or knowingly allowed
J.H. to remain, in conditions or surroundings which endangered his physical or
emotional well-being or any disputed evidence was not so significant that a fact
finder could not have reasonably formed a firm belief or conviction that mother
knowingly placed, or knowingly allowed J.H. to remain, in conditions or
surroundings which endangered his physical or emotional well-being.
Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court’s finding that mother knowingly placed, or knowingly allowed
43
J.H. to remain, in conditions or surroundings which endangered his physical or
emotional well-being. See id.
We overrule a portion of mother’s first and second issues.
As previously noted, only one predicate finding under Texas Family Code
section 161.001(b)(1) is necessary to support termination of mother’s parental rights
to J.H. See In re A.V., 113 S.W.3d at 362. Accordingly, having held that the
evidence is legally and factually sufficient to support the trial court’s finding, under
Texas Family Code section 161.001(b)(1)(D)—that mother knowingly placed, or
knowingly allowed J.H. to remain, in conditions or surroundings which endangered
his physical or emotional well-being—we need not address the remaining portions
of mother’s first and second issues in which she argues that the evidence is legally
and factually insufficient to support the trial court’s finding, under Texas Family
Code section 161.001(b)(1)(O), that mother failed to comply with the provisions of
a court order that specifically established the actions necessary for her to obtain the
return of J.H. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O); In re A.V., 113 S.W.3d
at 362; Walker, 312 S.W.3d at 618; see also TEX. R. APP. P. 47.1.
B. Best Interest
In her third issue, mother argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental rights
was in the best interest of J.H. because “neither sympathy nor empathy entered the
44
[trial court’s] decision-making process,” mother had “successfully raised her older
children,” “J.H. had never been placed out of his home prior to the instant case,”
there was no evidence of J.H. being harmed by mother or that J.H. was afraid of
returning home, mother did not have a history of substance abuse, mother’s
apartment was safe, mother’s family members were “ready and willing to do what
was necessary to have J.H. returned to them,” J.H. was not malnourished, and there
was no evidence that J.H. was exposed to violence or that mother did not understand
J.H.’s needs. Further, mother asserted that her visits with J.H. went well, she
participated in the majority of her visits with J.H., J.H.’s only needs that were not
being met while in mother’s care were his “dental needs,” and mother was “making
progress” after her stroke.
The best-interest analysis evaluates the best interest of the child. See In re
M.A.A., No. 01-20-00709-CV, 2021 WL 1134308, at *20 (Tex. App.—Houston [1st
Dist.] Mar. 25, 2021, no pet.) (mem. op.); In re D.S., 333 S.W.3d 379, 384 (Tex.
App.—Amarillo 2011, no pet.). It is presumed that the prompt and permanent
placement of the child in a safe environment is in his best interest. See TEX. FAM.
CODE ANN. § 263.307(a); In re D.S., 333 S.W.3d at 383.
There is also a strong presumption that the child’s best interest is served by
maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). Thus, we strictly scrutinize termination
45
proceedings in favor of the parent. See In re M.A.A., 2021 WL 1134308, at *20; In
re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.).
In determining whether the termination of mother’s parental rights was in the
best interest of J.H., we may consider several factors, including: (1) the desires of
J.H.; (2) the current and future physical and emotional needs of J.H.; (3) the current
and future emotional and physical danger to J.H.; (4) the parental abilities of the
parties seeking custody; (5) whether programs are available to assist those parties;
(6) plans for J.H. by the parties seeking custody; (7) the stability of the proposed
placement; (8) the parent’s acts or omissions that may indicate that the parent-child
relationship is not proper; and (9) any excuse for the parent’s acts or omissions. See
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re L.M., 104 S.W.3d at
647. We may also consider the statutory factors set forth in Texas Family Code
section 263.307. See TEX. FAM. CODE ANN. § 263.307; In re A.C., 560 S.W.3d 624,
631 n.29 (Tex. 2018); In re C.A.G., No. 01-11-01094-CV, 2012 WL 2922544, at *6
& n.4 (Tex. App.—Houston [1st Dist.] June 12, 2012, no pet.) (mem. op.).
These factors are not exhaustive, and there is no requirement that DFPS prove
all factors as a condition precedent to the termination of parental rights. See In re
C.H., 89 S.W.3d at 27; see also In re C.L.C., 119 S.W.3d 382, 399 (Tex. App.—
Tyler 2003, no pet.) (“[T]he best interest of the child does not require proof of any
unique set of factors nor limit proof to any specific factors.”). The absence of
46
evidence about some of the factors does not preclude a fact finder from reasonably
forming a strong conviction or belief that termination is in the child’s best interest.
In re C.H., 89 S.W.3d at 27; In re J.G.S., 574 S.W.3d 101, 122 (Tex. App.—Houston
[1st Dist.] 2019, pet. denied).
The same evidence of acts and omissions used to establish grounds for
termination under Texas Family Code section 161.001(b)(1) may also be relevant to
determining the best interest of the child. See In re C.H., 89 S.W.3d at 28; In re
L.M., 104 S.W.3d at 647. The trial court is given wide latitude in determining the
best interest of the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982);
see also Cuellar v. Flores, 238 S.W.2d 991, 992 (Tex. App.—San Antonio 1951, no
writ) (trial court “faces the parties and the witnesses, observes their demeanor and
personality, and feels the forces, powers, and influences that cannot be discerned by
merely reading the record”).
1. Child’s Desires
When mother’s parental rights were terminated, J.H. was six years old. He
did not directly express a desire as to whether he wished to return to mother’s care
or remain in the care of his foster parents.
When there is no specific evidence of a child’s desires and a child is too young
to express those desires, a fact finder may consider evidence that the child is bonded
with his foster family and receives good care in his current placement. See In re
47
L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *18 (Tex. App.—Houston [1st
Dist.] Apr. 9, 2019, pet. denied) (mem. op.); In re L.M.N., No. 01-18-00413-CV,
2018 WL 5831672, at *20 (Tex. App.—Houston [1st Dist.] Nov. 8, 2018, pet.
denied) (mem. op.). DFPS caseworker Cherry testified that J.H. was doing well in
his foster parents’ home, and while in the care of his foster parents, J.H.’s dental
hygiene had improved. He now “kn[ew] how to brush his teeth.” J.H.’s foster
parents wanted to adopt him.
Child Advocates representative Gonzalez similarly testified that J.H. was
doing well in his foster parents’ home and his foster parents were taking good care
of him. Further, Child Advocates representative Delgado explained that J.H.’s foster
mother was a teacher at the same school that J.H. attended. J.H. appeared to be
happy at school, and his foster mother planned to work with J.H. over the summer
to make sure that he was on target for the next school year. J.H.’s foster mother
wanted to make sure that he did not fall behind in school. Further, according to
Delgado, J.H. was happy and comfortable in his home with his foster parents. J.H.’s
foster parents had flash cards, writing tablets, books, and toys for J.H., and J.H. told
Delgado that his foster mother helped him brush his teeth.
Delgado also testified that J.H. interacted with his foster parents “really well,”
and he referred to his foster mother as “mom” and his foster father as “dad.” J.H.
sat on his foster father’s lap during Delgado’s visit with him. See In re S.H., No.
48
01-22-00255-CV, 2022 WL 17254956, at *14 (Tex. App.—Houston [1st Dist.] Nov.
29, 2022, pet. denied) (mem. op.) (child’s bond with placement family implies
child’s desire would be fulfilled by adoption by placement family). According to
Delgado, J.H. appeared calmer in the care of his foster parents. J.H.’s foster parents
told Delgado that they had been working with J.H. on manners and sitting at the table
to eat.
Further, according to DFPS’s May 2022 permanency report, J.H. was eating
and sleeping well at his foster parents’ home. And his foster parents had taken him
to medical and dental appointments. The report also notes that J.H. was attending
kindergarten and he was adjusting well to his school and learning a lot. See In re
L.M.N., 2018 WL 5831672, at *20 (considering evidence children doing well in
placement with foster parents, who were meeting children’s needs); In re M.L.R-U.,
Jr., 517 S.W.3d 228, 238 (Tex. App.—Texarkana 2017, no pet.) (considering
evidence foster family provided safe and healthy environment when determining
children’s desires).
There is also evidence that J.H. was happy to see mother and his older brothers
at visits and that J.H. had a good relationship with his brothers. However, mother
also missed visits with J.H., was late to certain visits with J.H., and failed to interact
with J.H. at certain visits. We note that even when a child is attached to a parent,
his desire to be returned to the parent’s care is not dispositive of the best-interest
49
analysis. See In re D.R.L., No. 01-15-00733-CV, 2016 WL 672664, at *5 (Tex.
App.—Houston [1st Dist.] Feb. 18, 2016, no pet.) (mem. op.); see also In re
K.S.O.B., No. 01-18-00860-CV, 2019 WL 1246348, at *19 (Tex. App.—Houston
[1st Dist.] Mar. 19, 2019, no pet.) (mem. op.) (considering evidence that parent
missed visits with children when evaluating children’s desires).
2. Current and Future Physical and Emotional Needs and Current
and Future Physical and Emotional Danger
a. Condition of Home
A child’s need for a safe and stable home is a paramount consideration in
assessing the best interest of the child. See In re L.W., 2019 WL 1523124, at *18;
see also TEX. FAM. CODE ANN. § 263.307(a) (prompt and permanent placement of
child in safe environment presumed to be in child’s best interest); In re G.M.G., 444
S.W.3d 46, 60 (Tex. App.—Houston [14 Dist.] 2014, no pet.) (parent who lacks
ability to provide child with safe and stable home is unable to provide for child’s
emotional and physical needs); Adams v. Tex. Dep’t of Fam. & Protective Servs.,
236 S.W.3d 271, 280 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (in children’s
best interest to be raised in consistent, stable, and nurturing environment).
Before entering DFPS’s care, J.H. lived with mother in an apartment.
According to DFPS investigator Benitez, the apartment was a one-bedroom
apartment that was cluttered and had broken glass on the floor. It had working
utilities and there was food in the apartment, but J.H. was barefoot in the mother’s
50
apartment while there was broken glass on the floor. See In re A.L., 545 S.W.3d
138, 148 (Tex. App.—El Paso 2017, no pet.) (home’s unsafe conditions, including
clutter, relevant in determining emotional and physical needs of child and emotional
and physical danger to child). Further, J.H. was unkempt. His clothes were not
clean, his hair was not combed, and it appeared that J.H. did not bathe.19 See TEX.
FAM. CODE ANN. § 263.307(b)(12)(D) (in determining whether parent willing and
able to provide child with safe environment, considering whether parent
demonstrates adequate parenting skills); In re A.T., 406 S.W.3d at 371–72 (poor
hygiene may constitute condition that endangers child’s physical and emotion
well-being); In re Z.G., No. 11-11-00078-CV, 2012 WL 745090, at *4 (Tex. App.—
Eastland Mar. 8, 2012, no pet.) (mem. op.) (parent unable to provide safe
environment for children where children’s hygiene was poor); In re C.M.W., 2003
WL 579794, at *5 (children’s basic needs include cleanliness and clothing).
According to Danys, when J.H. left mother’s apartment on November 25, 2020, he
was not wearing a shirt or socks.
b. J.H.’s Medical, Dental, and Other Needs
A child’s basic needs include medical and dental care. See In re M.A.A., 2021
WL 1134308, at *23; In re K.S.O.B., 2019 WL 1246348, at *19. In deciding that
19
Child Advocates representative Gonzalez also testified that when J.H. entered
DFPS’s care, he was not clean.
51
the termination of parental rights is in the best interest of a child, the trial court may
consider evidence that a parent neglected to seek appropriate medical or dental care
for her child. See In re M.A.A., 2021 WL 1134308, at *23; In re K.S.O.B., 2019 WL
1246348, at *19; In re J.R.W., No. 14-12-00850-CV, 2013 WL 507325, at *9 (Tex.
App.—Houston [14th Dist.] Feb. 12, 2013, pet. denied) (mem. op.); see also TEX.
FAM. CODE ANN. § 263.307(b)(12)(A), (F) (in determining whether parent willing
and able to provide child with safe environment, considering whether parent
demonstrates adequate parenting skills including providing health care and
understanding child’s needs). Likewise, the trial court may infer from a parent’s
past inattention to her child’s medical and dental needs that such inattention will
continue in the future. See In re M.A.A., 2021 WL 1134308, at *23; In re K.S.O.B.,
2019 WL 1246348, at *19; In re L.G.R., 498 S.W.3d 195, 205–06 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied); In re J.R.W., 2013 WL 507325, at *9; see
also In re B.K.D., 131 S.W.3d 10, 17 (Tex. App.—Fort Worth 2003, pet denied)
(fact finder may infer that past conduct endangering child’s well-being may recur in
the future if child returned to parent).
DFPS caseworker Cherry testified that J.H. “never brushed his teeth” while in
mother’s care, and his teeth were rotten and decaying when he was removed from
mother’s care. J.H. had never received dental care while he was in mother’s care,
and J.H.’s medical records showed that mother had neglected his dental care for
52
years. Because of the neglect of J.H.’s dental care, J.H. had “extensive dental work”
after he was removed from mother’s care. He “received caps on many teeth and
silver caps.” The dental work required medical sedation.
Chery also testified that J.H. had never received any immunizations while in
mother’s care, and mother did not give Cherry a reason for her failure to vaccinate
J.H. And J.H. had a speech delay. When J.H. entered DFPS’s care, he could not
speak English or Spanish; he spoke “gibberish.” J.H. had not received any speech
therapy services while he was in the care of mother. See In re M.A.A., 2021 WL
1134308, at *28 (in discussing best interest of children, noting mother had failed to
help her children achieve certain developmental milestones and had not sought help
for children).
DFPS investigator Benitez testified that when she saw J.H. in November
2020, he was not able to complete a full sentence. He had “marks on” his face and
“scratches over his body.” His teeth were brown and looked rotten, and it did not
appear that J.H. had ever been to a dentist. Child Advocates representative Gonzalez
similarly testified that when J.H. entered DFPS’s care, his teeth were “rotten.”
Danys, mother’s oldest adult-son, confirmed that when J.H. was in mother’s
care, his teeth had “become black.” Danys stated that this was because mother had
given J.H. “iron pills” and J.H.’s teeth were “not washed well.” Although Danys
had bought J.H. a toothbrush, the “darkness” did not come off with brushing or get
53
better. Danys acknowledged that J.H.’s teeth were “very bad” and that J.H. needed
to see a dentist, but he stated that no one in the family ever took J.H. to the dentist.
Mother admitted that she did not take J.H. to the dentist or to the doctor when
he was in her care. See In re K.S.O.B., 2019 WL 1246348, at *19 (trier of fact can
infer from parent’s past inattention to child’s medical needs that such inattention will
continue in future); In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013,
pet. denied) (trial court may measure parent’s future conduct by past conduct).
The May 2022 permanency report states, based on J.H.’s mental health
assessment, that J.H.’s caregivers must be able to provide him with a nurturing,
structured, and consistent environment. J.H.’s caregivers should provide
age-appropriate play and learning activities to promote J.H.’s developmental
progress. J.H. needed to attend dental appointments regularly to promote and
maintain good dental hygiene and health. There was no evidence presented at trial
that these needs would be met if J.H. was returned to mother’s care. See In re E.D.,
419 S.W.3d at 620 (trial court may measure parent’s future conduct by past conduct).
c. Violence and Abuse
A child’s exposure to violence in the home undermines the safety of the home
environment and is relevant when considering the best interest of the child. See In
re L.W., 2019 WL 1523124, at *19; In re A.K., Nos. 07-17-00353-CV,
07-17-00354-CV, 2018 WL 912703, at *5 (Tex. App.—Amarillo Feb. 15, 2018, pet.
54
denied) (mem. op.). Further, a parent’s violent behavior while a child is in the home
places the child in severe emotional danger. See In re S.B., 207 S.W.3d 877, 886–
87 (Tex. App.—Fort Worth 2006, no pet.). A parent’s past performance as a parent
is relevant to a determination of her present and future abilities to provide for a child.
See In re C.H., 89 S.W.3d at 28; In re L.W., 2019 WL 1523124, at *19; In re E.D.,
419 S.W.3d at 620 (trial court may measure parent’s future conduct by past conduct);
see also Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 824 (Tex. App.—
Fort Worth 2007, no pet.) (“[T]rial courts [have] relied on evidence of past violence
as an indicator of future behavior in parental termination and child custody cases.”).
DFPS investigator Benitez testified that on November 25, 2020—the day J.H.
was found outside of his home—a third party saw mother hit J.H. in the face with a
cane after the third party walked J.H. back to mother’s apartment and returned J.H.
to mother’s care. The third party told Benitez that mother “slapped [J.H.] across the
face with her cane aggressively.”20 Mother denied hitting J.H. with a cane.21 But
20
DFPS caseworker Cherry testified that mother used a cane to walk after suffering a
stroke and recounted the same incident of mother striking J.H. with a cane during
her testimony. But Cherry stated that J.H. did not have any visual marks from being
struck in the face with the cane. But see In re C.V.L., 591 S.W.3d 734, 750 (Tex.
App.—Dallas 2019, pet. denied) (child need not actually suffer injury to be
endangered).
21
In a bench trial, the trial court as the trier of fact weighs the evidence, assesses the
credibility of witnesses, and resolves conflicts or inconsistences. In re S.J.R.-Z.,
537 S.W.3d 677, 691 (Tex. App.—San Antonio 2017, pet. denied); see also In re
R.J., 579 S.W.3d 97, 117 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (trial
court, as trier of fact, entitled to disbelieve parent’s testimony and version of events).
55
when Benitez saw J.H. three days later, on November 28, 2020, she saw “marks on”
J.H.’s face and “scratches over his body.” See TEX. FAM. CODE ANN.
§ 263.307(b)(7) (in determining whether parent able to provide child with safe
environment, considering history of abusive and assaultive conduct by child’s family
and others with access to child’s home); In re L.W., 2019 WL 1523124, at *14
(“[A]busive conduct by a parent or other person in the children’s home may produce
an environment that endangers the physical and emotional well-being of the
children.”); In re G.P., No. 01-16-00346-CV 2016 WL 6216192, at *11 (Tex.
App.—Houston [1st Dist.] Oct. 25, 2016, no pet.) (mem. op.) (“Direct physical abuse
is clearly conduct that endangers a child.”); see also In re A.M., 385 S.W.3d 74, 82
(Tex. App.—Waco 2012, pet. denied) (“Evidence of past misconduct . . . can be
used to measure a parent’s future conduct.”); Clements v. Haskovec, 251 S.W.3d 79,
87 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.) (in parental-termination
cases, evidence that parent in past engaged in abusive conduct permits inference
parent will continue behavior in future).
56
3. Parental Abilities, Plans for Child, Stability of Proposed
Placement, and Availability of Assistance22
a. Mother’s Supervision of J.H.
According to DFPS investigator Benitez, on November 25, 2020, J.H., who
was four years old at the time, ran out of mother’s apartment and was sitting on the
street curb in front of his apartment complex for hours. J.H. ran across a main street,
in front of oncoming traffic, to a store and stole an ice cream. J.H. then began to
walk back across the main street in front of oncoming traffic. A third party was able
to stop J.H. and walk him back across the street. The third party walked J.H. to
mother’s apartment and knocked on the door to return J.H. to mother. Mother told
the third party that J.H. was “always running out.” When J.H. was back in mother’s
care, the third party saw mother aggressively slap J.H. across the face with a cane.
See TEX. FAM. CODE ANN. § 263.307(b)(12)(C) (in determining whether parent
willing and able to provide child with safe environment, considering whether parent
demonstrates adequate parenting skills, such as “supervision consistent with the
child’s safety”); In re A.J.B., No. 10-18-00274-CV, 2018 WL 6684808, at *3 (Tex.
App.—Waco Dec. 19, 2018, no pet.) (mem. op.) (“[Y]oung children are particularly
vulnerable if left in the custody of a parent who is unable or unwilling to protect
22
Much of the evidence discussed above is also relevant to mother’s parental abilities,
mother’s plans for J.H., and the stability of the proposed placements for J.H. See
TEX. R. APP. P. 47.1.
57
them or attend to their needs because they have no ability to protect themselves.”);
In re S.B., 207 S.W.3d at 886 (parent’s poor judgment may be considered in
discussing child’s best interest); In re C.M.W., 2003 WL 579794, at *5 (children’s
basic needs include appropriate supervision).
When Benitez spoke to Danys, mother’s oldest adult-son, about the November
25, 2020 incident, he reported that on November 25, 2020, mother told Danys that
she was depressed and “needed company,” so Danys left J.H. with mother instead
of taking J.H. to a babysitter when he went to work.23 Mother admitted to Benitez
that J.H. ran out of her apartment on November 25, 2020 while he was under her
supervision.
Benitez also testified that J.H. had managed to get out of mother’s apartment
on other occasions, leaving him outside without parent or caregiver supervision.
Prior to the November 25, 2020 incident, on another day, while J.H. was living with
mother and Danys, Danys left J.H. with mother while he was at work. Because
mother had a stroke about three months before, she had lost mobility in half of her
23
Danys testified that before the November 25, 2020 incident, J.H. had previously
gotten out of mother’s apartment and a “safety plan” was put in place under which
Danys was supposed to supervise J.H. and not leave him alone with mother. But on
November 25, 2020, Danys left J.H. with mother while he went to work because he
trusted her to supervise J.H. While under mother’s supervision, J.H. got out of the
apartment because he was able to unlock the door. J.H. was not wearing a shirt or
socks at the time. Mother did not call Danys to report that J.H. had escaped because
she could not speak very well.
58
body. Mother admitted that J.H. left her apartment while he was under her
supervision, and she had attempted to run after him but she was physically unable to
do so. After this incident, Danys and mother agreed to a “safety plan” with DFPS,
which stated that J.H. would no longer be left unsupervised with mother, and he
would be taken to a babysitter while Danys was at work. But on November 25,
2020, Danys left J.H. unsupervised with mother, and J.H. escaped from the
apartment while he was in mother’s care.
Benitez concluded, based on her investigation, that mother was physically
unable to care for J.H., and although she had placed the responsibility of J.H.’s care
on Danys, her oldest adult-son, he was still young at the time and lacked the maturity
and the understanding of DFPS’s concerns to keep J.H. safe and unharmed.
According to Benitez, while in mother’s care, J.H. had been put at risk of being hit,
injured, or killed because he had been able to leave mother’s apartment unsupervised
and cross a main street into oncoming traffic. J.H. had been allowed to “roam[]
outside of” mother’s apartment for several hours without mother or a caregiver
knowing his whereabouts.
b. Mother’s Ability to Care for J.H.
DFPS caseworker Cherry testified that three months before J.H. entered
DFPS’s care, mother had a stroke, which left her paralyzed on the left side of her
body. At the beginning of the case, mother used a cane to walk, but, at the time of
59
trial, she no longer used a cane. Yet she still had to “walk fairly slow[ly].” Further,
as a result of her stroke, mother “c[ould] only talk so much.”24 Mother was not
taking any medications or seeking any sort of treatment or therapy to help her
recover from her stroke. Mother told Cherry that “she[] [was] fine and she d[id] not
need anything to help with her aftermath [from] the stroke.” See In re A.M.A., No.
13-22-00011-CV, 2022 WL 1110993, at *6 (Tex. App.—Corpus Christi–Edinburg
Apr. 14, 2022, no pet.) (mem. op.) (holding evidence sufficient to support trial
court’s finding termination of parental rights in child’s best interest where parent
admitted she failed to care for her own medical needs and could not provide evidence
of how she would care for child’s needs); A.A. v. Tex. Dep’t of Fam. & Protective
Servs., No. 03-21-00307-CV, 2021 WL 5893695, at *6 (Tex. App.—Austin Dec. 14,
2021, no pet.) (mem. op.) (considering, in holding evidence sufficient to support trial
court’s best-interest finding, that parent’s disabilities presented obstacles to safe
parenting and parent had refused to address those obstacles in therapy); see also In
re J.S., No. 11-18-00301-CV, 2019 WL 1837477, at *2 (Tex. App.—Eastland Apr.
25, 2019, no pet.) (mem. op.) (noting parent’s failure to meet own medical needs
created dangerous situation for her children).
24
Child Advocates representative Gonzalez testified that she was unable to
communicate with mother and when she tried to ask mother questions, mother did
not appear to understand.
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Because of mother’s health status, Cherry expressed concern about mother’s
ability “to keep up with [J.H.] because he [was] super active and super hyper.” 25
Cherry described J.H. as a “super hyper” boy. Mother’s health status prevented her
from being able to run after J.H. and prevented her from being able to take J.H. to
school. See C. C. F. v. Tex. Dep’t of Fam. & Protective Servs., No.
03-20-00152-CV, 2020 WL 4929782, at *6–7 (Tex. App.—Austin Aug. 19, 2020,
pet. denied) (mem. op.) (in holding evidence sufficient to support trial court’s
finding termination of parental rights was in best interest of child, noting parent’s
physical limitations raised concerns about whether she could care for child).
Cherry also noted, as to the November 25, 2020 incident, that mother was not
able to “get” J.H. after he escaped from her apartment due to her health limitations.26
See In re E.D., 419 S.W.3d at 620 (trial court may measure parent’s future conduct
by past conduct); see also In re S.R., 452 S.W.3d 351, 367 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied) (considering parent’s failure to appreciate need for
treatment to combat history of mental instability and explaining trier of fact could
thus infer that parent’s mental health issues would likely continue and further
jeopardize children’s well-being). According to Cherry, mother was unable to care
25
Danys also testified that J.H. was a hyperactive child.
26
Mother acknowledged that on November 25, 2020 she saw J.H. open the door and
run out of the apartment, but she could not walk.
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for J.H. on her own; she could not play with him, throw a ball with him, or walk to
the park with him. Mother spent the majority of her time sitting and she was unable
to chase after J.H. if needed.
Child Advocates representative Gonzalez testified that mother was not
capable of being J.H.’s primary caregiver because of her previous stroke. If J.H.
was returned to mother’s care, Gonzalez did not think that mother, who did not drive,
would be able to take J.H. to the doctor on her own or that she would be able to get
J.H. to school.
Mother’s FSP states that mother previously suffered a stroke that left half of
her body paralyzed. And mother, while J.H. was in her care, “continue[d] to leave
[J.H.] without . . . appropriate parental care or adult supervision” placing him at risk
of danger and possible neglect. The Child Advocates report states that
representatives from Child Advocates had attempted to speak with mother about the
status of the case and permanency options for J.H., but mother had limited speech
due to her stroke and she had difficult communicating verbally.
As to mother’s health status, Danys testified that mother’s condition, by the
time of trial, had improved. She “talk[ed] better” and no longer needed “her walking
stick or [her] wheelchair.” But she still had difficult moving one of her hands.
Mother was able to understand sentences and was able to go outside her apartment
alone. Mother could dress herself, put on makeup, and walk to buy food from a
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nearby store. However, Danys acknowledged that mother could not live
independently, she could not supervise J.H. alone without additional help, and she
could not take J.H. to any doctor or dentist appointments by herself.
Mother testified that her condition had improved, and at the time of trial, she
could go shopping and buy food by herself at a store that was not far away from her
apartment. But she acknowledged that she needed her attorney to help her walk in
the courtroom, and she needed help caring for J.H. if he was returned to her care.27
See In re J.A.A., No. 14-18-00530-CV, 2018 WL 6614236, at *7 (Tex. App.—
Houston [14th Dist.] Dec. 18, 2018, no pet.) (mem. op.) (in holding evidence
sufficient to support trial court’s finding that termination of parental rights in
children’s best interest, considering that parent’s stroke during case had rendered
him physically unable to attend to children’s needs). Mother did not know the
address of the apartment that she lived at or the name of the apartment complex
where she lived. She did not know what grade J.H. would be entering in the fall.
According to mother, she did not receive medical services following her stroke. Cf.
T.V.N. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-13-00806-CV, 2014 WL
27We note that the fact that mother suffers from certain physical limitations does not
automatically render her unable to care for J.H. See, e.g., In re L.C.L., 599 S.W.3d
79, 88 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (“[T]he existence
of . . . disorders and disabilities [does not automatically] constitute evidence of
[parent’s] inability to provide for children’s emotional or physical needs.”). But
here, mother, in addition to other evidence presented at trial, acknowledged her
inability to care for J.H.
63
1285772, at *2, *5 (Tex. App.—Austin Mar. 27, 2014, no pet.) (mem. op.) (noting
parent had a history of failing to properly attend to her own medical needs); see also
In re E.R.G., No. 11-20-00248-CV, 2021 WL 1807332, at *3 (Tex. App.—Eastland
May 6, 2021, no pet.) (mem. op.) (parent’s failure to seek treatment or properly take
medication for mental health issues endanger child’s physical or emotional
well-being).
c. Mother’s Proposed Placement for J.H.
Mother testified that, at the time of trial, she lived with Danys, her oldest
adult-son, Romero, her second-oldest adult-son, Danys’s girlfriend, and Danys’s
child. Mother stated that Danys could take care of J.H. if he was returned to mother’s
care or that Danys’s girlfriend could take care of J.H. But mother did not have any
other family members that could help care for J.H.
Danys, who was about twenty-one years old at the time of trial, testified that
he worked either five or six days a week from 6:30 a.m. until 2:30 p.m., but on some
days, he had to stay later than 2:30 p.m. Danys could drive a car, but he did not have
a driver’s license.
Danys stated that he lived with his girlfriend and their child along with
Romero and mother in an apartment.28 Romero, who was about nineteen years old
28
This was not the same apartment that mother, Danys, and J.H. were living in when
J.H. was removed from mother’s care.
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at the time of trial, worked from 7:00 a.m. to 8:00 p.m. and also did not have a
driver’s license. Danys’s apartment had two bedrooms. According to Danys,
mother and J.H. could live in one bedroom and Danys, his girlfriend, and their child
could live in the other bedroom. Cf. A.A., 2021 WL 5893695, at *6 (although
condition of parent’s home may have improved, holding evidence sufficient to
support trial court’s finding that termination of parental rights in child’s best
interest). The apartment did not have a bed for J.H., but Danys testified that the
family could buy a bed so that J.H. and mother had their own beds on which to sleep.
Romero slept on the conch in the living room. Danys was responsible for paying for
the apartment. The apartment did not have locks on the door, but if J.H. was returned
to mother’s care, the family would put a lock on the door so that J.H. would not be
able to get out. See In re L.J.M., Nos. 01-18-00140-CV, 01-18-00141-CV, 2018 WL
3884374, at *7 (Tex. App.—Houston [1st Dist.] Aug. 16, 2018, pet. denied) (mem.
op.) (considering lack of safety features intended to keep children from
surreptitiously leaving house in analyzing best interest); In re J.M., 156 S.W.3d 696,
707 (Tex. App.—Dallas 2005, no pet.) (parent’s inability to keep house safe for
children put children in physical danger); see also Smith v. Tex. Dep’t of Protective
& Regulatory Servs., No. 03-02-00598-CV, 2003 WL 22096141, *4 (Tex. App.—
Austin Sept. 11, 2003, no pet.) (mem. op.) (DFPS worker testified that failure to
have lock on front door was safety concern).
65
According to Danys, his girlfriend stayed at home caring for their child during
the day, and she was willing to take care of J.H. Danys’s girlfriend would supervise
J.H. and take him to school. But Danys’s girlfriend also watched one or two other
children and took care of mother while Danys was at work. Danys stated that his
girlfriend was willing to help with J.H. “because there[] [was] not another person
that could do it.” Either Danys or Romero would take J.H. to doctor appointments
or dentist appointments. But Danys acknowledged that he had difficulty even
attending visits with J.H. during the pendency of the case because of his work
schedule and he had trouble helping mother complete the requirements of her FSP
because he spent all day working.
DFPS investigator Benitez testified that Danys lacked the maturity and the
understanding of DFPS’s concerns to keep J.H. safe and unharmed. And Danys had
previously signed a “safety plan,” agreeing to not leave J.H. unsupervised with
mother. But Danys did exactly that on November 25, 2020 when J.H. left mother’s
apartment unsupervised and ran into traffic.
DFPS caseworker Cherry expressed concern about mother’s support system,
which consisted of Danys and Romero, because Danys and Romero “work[ed] pretty
much all day every day,” which made it difficult for them to provide mother with
support. Cherry also testified that she did not believe that Danys, Romero, and
Danys’s girlfriend would be able to help mother take care of J.H. if he was returned
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to mother’s care because Danys and Romero were “always gone to work” and
Danys’s girlfriend had recently had a child and “ha[d] not expressed any desire to
help care for” J.H. Neither Danys nor Romero had designated anyone who would
be responsible for J.H. if he was returned to mother’s care.
Child Advocates representative Gonzalez testified that Danys and Romero
had spoken to Gonzalez about having Danys’s girlfriend approved as a babysitter
for J.H., if he was returned to mother’s care, but Gonzalez testified that Danys’s
girlfriend had an infant child, who was ten months old, and also babysat for two
other children who were toddlers. Further, Gonzalez explained that Danys, who was
about twenty-one years old at the time of trial, and Romero, who was about eighteen
years old at the time of trial, both worked Monday through Saturday, so neither of
them could serve as a primary caretaker for J.H. According to Gonzalez, no one in
mother’s family had identified themselves as the person who would be a primary
caretaker for J.H., i.e., the person who would be “the full-time responsible person”
for J.H., if he was returned to mother’s care.
d. Current Placement
Child Advocates representative Delgado testified that J.H. lived with his
foster parents in a ranch-style house on acreage. The house had a large front yard
and the property was fully fenced. The home had three or four bedrooms, a dining
room, kitchen, and family room. J.H.’s foster parents had two dogs, and J.H. was
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the only child living in the home. See In re J.M., 156 S.W.3d at 708 (holding
evidence sufficient to support trial court’s best-interest finding termination of
parental rights in child’s best interest where “[t]he evidence show[ed] the foster
parents’ home [was] stable”).
Delgado explained that J.H. was comfortable in his home with his foster
parents and J.H. interacted with his foster parents “really well.” J.H. referred to his
foster mother as “mom” and his foster father as “dad.” See In re S.H., 2022 WL
17254956, at *21 (child referred to placement family as “[m]om” and “[d]ad”
(internal quotations omitted)); In re G.J.A., No. 13-22-00209-CV, 2022 WL
3092177, at *8 (Tex. App.—Corpus Christi–Edinburg Aug. 4, 2022, no pet.) (mem.
op.) (in holding sufficient evidence to support trial court’s finding termination of
parental rights in children’s best interest, considering evidence showed that children
were thriving in current placement, placement was meeting all of the children’s
needs, children called their foster parents “mom and dad,” and children were bonded
with foster family (internal quotations omitted)); J.D.S. v. Tex. Dep’t of Fam. &
Protective Servs., 458 S.W.3d 33, 44–45 (Tex. App.—El Paso 2014, no pet.) (noting,
in holding evidence was sufficient to support trial court’s finding termination of
parental rights in child’s best interest, that child was thriving in placement, she
considered her foster parents to be her “mom and dad,” and child was improving
while in DFPS’s care (internal quotations omitted)). J.H. sat on his foster father’s
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lap during Delgado’s visit with him. In re S.H., 2022 WL 17254956, at *14 (“A
child’s bond with his placement family implies that the child’s desires would be
fulfilled by adoption by the placement family.”); In re M.S., No. 02-20-00147-CV,
2020 WL 6066400, at *9–10 (Tex. App.—Fort Worth Oct. 15, 2020, no pet.) (mem.
op.) (evidence child bonded with adoptive placement family and happy living with
them weighed in favor of terminating parental rights).
Delgado could speak to J.H. in both Spanish and English, and J.H. would
respond to her in either Spanish or English. Delgado described J.H. as very talkative.
J.H. played soccer, and his foster parents had flash cards, writing tablets, and toys
for J.H. J.H. told Delgado that his foster mother helped him brush his teeth. See In
re S.H., 2022 WL 17254956, at *21 (considering no concerns about child’s dental
hygiene while he was with placement family).
According to Delgado, J.H. was happy at school, and he attended the same
school where his foster mother taught. J.H. had struggled in his
Spanish-only-speaking class, and his foster mother had told Delgado that she and
J.H.’s foster father were going to place J.H. in an English-only-speaking class in the
upcoming school year. J.H.’s foster mother planned to work with J.H. during the
summer to make sure that he was on target and did not fall behind in school. J.H.
told Delgado that he was sad that it was summer and he was not at school.
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Delgado stated that J.H. seemed calmer now that he was in his foster parents’
care. J.H.’s foster parents had been working with J.H. on manners and sitting at the
table to eat.
DFPS caseworker Cherry testified that J.H. was placed with foster parents
who wanted to adopt him. J.H. was doing well in his foster parents’ home. He was
in kindergarten and was adjusting to his new school. He spoke both English and
Spanish, and his Spanish-language skills had improved in his placement with his
foster parents. See In re P.G.D., No. 04-19-00896-CV, 2020 WL 2543310, at *5
(Tex. App.—San Antonio May 20, 2020, pet. denied) (mem. op.) (considering
children were in loving foster home that was meeting their needs and children were
making developmental and academic progress). J.H. was good at math and was very
smart. Cherry noted that when J.H. first entered DFPS’s care, he was timid and shy,
but now he was “super hyper, super loving” and a “very good boy.”
Cherry further testified that when J.H. entered DPFS’s care, he had a speech
delay and he could not speak English or Spanish. But, while in DFPS’s care, he had
participated in speech therapy services, and his speech had improved. He was now
able to understand what was being asked of him and was able to identify things. He
spoke “very well.”
As to J.H.’s foster parents, Cherry stated that the foster parents were bilingual.
J.H.’s foster father worked at a chemical plant, and J.H.’s foster mother was a
70
teacher. See In re M.R.H., No. 07-15-00089-CV, 2015 WL 3463025, at *4 (Tex.
App.—Amarillo May 26, 2015, pet. denied) (mem. op.) (considering as evidence of
foster family’s ability to care for child that foster father was gainfully employed).
J.H. attended the same school where his foster mother taught. Cherry did not have
any concerns about J.H.’s foster parents’ home and stated that it was DFPS’s goal
for J.H. to be adopted by his foster parents.
Child Advocates representative Gonzalez testified that J.H. was doing well in
in his foster parents’ home and his foster parents were taking good care of him.
Gonzalez did not believe that mother was able to provide the same level of care to
J.H. At the time of trial, J.H. had been living with his foster parents for about two
months, and the placement was an adoptive placement for J.H.
The May 2022 permanency report states that J.H. was adjusting to his foster
parents’ home and he was eating and sleeping well. He was a bright, sweet, and
happy child who enjoyed playing with toys and meeting new people. J.H. was
hyperactive and learning to follow the rules when he did not get his way. J.H.
attended medical and dental appointments while in the care of his foster parents. See
In re A.A., No. 02-17-00307-CV, 2018 WL 771972, at *6 (Tex. App.—Fort Worth
Feb. 8, 2018, no pet.) (mem. op.) (considering evidence foster parents took child to
all her appointments and were meeting her medical needs).
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According to the permanency report, J.H. was attending kindergarten and
adjusting well to his school and learning a lot. He was learning Spanish at school
and in speech therapy at home, but he preferred to speak English. J.H.’s mental
health assessment recommended that J.H.’s caregivers provide him with
age-appropriate play and learning activities to promote J.H.’s developmental
progress.
The Child Advocates report states that Child Advocates recommended that
J.H. remain in his current placement because his foster parents were meeting his
needs and he appeared to be comfortable in the home. J.H. was eating and sleeping
well, and he had adjusted to school. J.H.’s foster parents wanted to adopt J.H. See
In re T.M.R., No. 13-21-00144-CV, 2021 WL 4998438, at *7 (Tex. App.—Corpus
Christi–Edinburg Oct. 28, 2021, no pet.) (mem. op.) (“A factfinder may consider the
consequences of [the] failure to terminate parental rights and may also consider that
the child’s best interest may be served by termination so that adoption may occur.”);
In re L.W., 2019 WL 1523124, at *23 (in holding evidence sufficient to support trial
court’s best-interest finding, considering children were placed in adoptive home with
foster parents who wanted children to continue living with them); see also In re J.D.,
436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“The goal of
establishing a stable, permanent home for a child is a compelling . . . interest.”).
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Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude that the trial court could have formed a firm belief or conviction that
termination of mother’s parental rights was in the best interest of J.H. See TEX. FAM.
CODE ANN. § 161.001(b)(2). Viewing the evidence in a neutral light, we conclude
that a reasonable fact finder could have formed a firm belief or conviction that
termination of mother’s parental rights was in the best interest of J.H. See id. We
further conclude that the trial court could have reconciled any disputed evidence in
favor of finding that termination of mother’s parental rights was in J.H.’s best
interest or any disputed evidence was not so significant that a fact finder could not
have reasonably formed a firm belief or conviction that termination is in the best
interest of J.H.
Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court’s finding that termination of mother’s parental rights was in
the best interest of J.H. Id.
We overrule mother’s third issue.
Managing Conservatorship
In her fourth issue, mother argues that the trial court erred in appointing DFPS
as J.H.’s sole managing conservator because either mother, Danys, or Romero
should have been appointed.
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The Texas Family Code provides that “[i]f the court terminates the
parent-child relationship with respect to both parents or to the only living parent, the
court shall appoint a suitable, competent adult, [DFPS], or a licensed child-placing
agency as managing conservator of the child.” TEX. FAM. CODE ANN. § 161.207(a);
see also In re S.M.G., No. 01-17-00056-CV, 2017 WL 2806332, at *8 (Tex. App.—
Houston [1st Dist.] June 29, 2017, pet. denied) (mem. op.) (“When the parents’
parental rights have been terminated, [Texas] Family Code section 161.207 governs
the appointment of a managing conservator.”). Generally, we review a trial court’s
conservatorship determination for an abuse of discretion. In re J.A.J., 243 S.W.3d
611, 616 (Tex. 2007).
Importantly, an order terminating the parent-child relationship divests the
parent of all legal rights and duties with respect to her child. See TEX. FAM. CODE
ANN. § 161.206(b); In re A.L.J., No. 01-19-00251-CV, 2019 WL 4615826, at *9
(Tex. App.—Houston [1st Dist.] Sept. 24, 2019, no pet.) (mem. op.). A parent with
no legal rights with respect to her child lacks standing to attack the portion of the
trial court’s order appointing DFPS as the sole managing conservator of the child.
See In re A.L.J., 2019 WL 4615826, at *9.
Here, we overruled mother’s complaint that the trial court erred in terminating
her parental rights to J.H. because the evidence is legally and factually insufficient
to support the trial court’s findings that mother knowingly placed, or knowingly
74
allowed J.H. to remain, in conditions or surroundings which endangered his physical
or emotional well-being and termination of her parental rights was in the best interest
of J.H. See id. (“Once we overrule a parent’s challenge to the termination order, the
trial court’s appointment of [DFPS] as sole managing conservator may be considered
a ‘consequence of the termination’ . . . .”); In re S.R., 452 S.W.3d 351, 359 n.3 (Tex.
App.—Houston [14th Dist.] Nov. 13, 2014, pet. denied) (“A trial court does not
abuse its discretion in appointing [DFPS] as conservator of the children where the
evidence is sufficient to support termination of parental rights.”); Quiroz v. Dep’t of
Fam. & Protective Servs., No. 01-08-00548-CV, 2009 WL 961935, at *11 (Tex.
App.—Houston [1st Dist.] Apr. 9, 2009, no pet.) (mem. op.) (refusing to address
parent’s complaint evidence insufficient to support DFPS’s appointment as sole
managing conservator where evidence sufficient to support termination of parent’s
rights). Thus, the trial court’s order terminating mother’s parental rights divested
her of her legal rights and duties to J.H. See TEX. FAM. CODE ANN. § 161.206(b); In
re A.L.J., 2019 WL 4615826, at *9 (“Because we have overruled [parent’s]
challenge to the portion of the trial court’s order terminating her parental rights, the
order has divested [her] of her legal rights and duties related to [the children].”); In
re L.M.N., 2018 WL 5831672, at *26; E.A. v. Tex. Dep’t of Fam. & Protective Servs.,
No. 03-15-00811-CV, 2016 WL 1639847, at *4 (Tex. App.—Austin Apr. 21, 2016,
pet. denied) (mem. op.).
75
Having no legal rights with respect to J.H., we hold that mother lacks standing
to challenge the portion of the trial court’s order appointing DFPS as sole managing
conservator of J.H. See In re C.A.J., No. 01-19-00704-CV, 2021 WL 243900, at *21
(Tex. App.—Houston [1st Dist.] Jan. 26, 2021, pet. denied); In re A.L.J., 2019 WL
4615826, at *9 (“[Parent] d[id] not have standing to challenge the portion of the
order appointing [DFPS] as permanent managing conservator of the children
because any alleged error could not injuriously affect her rights.”); In re Y.V., No.
02-12-00514-CV, 2013 WL 2631431, at *1–2 (Tex. App.—Fort Worth June 13,
2013, no pet.) (mem. op.).
We overrule mother’s fourth issue.
Conclusion
We affirm the order of the trial court.
Julie Countiss
Justice
Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.
76