in the Interest of N.H., M.H., K.R., B.K., H.K., H.K., and H.T., Children ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00157-CV
___________________________
IN THE INTEREST OF N.H., M.H., K.R., B.K., H.K., H.K., AND H.T.,
CHILDREN
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-435130-08
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
In this appeal, Appellant M.M. (Mother) appeals the trial court’s order
terminating her parental rights to her children K.R. (Kenneth), B.K. (Breanna), H.J.K.
(Hank), H.S.K. (Hudson), and H.T. (Holly) (collectively the Children); Appellant J.T.
appeals the trial court’s order terminating his parental rights to Holly; and Appellant
K.R. appeals the trial court’s order terminating his parental rights to Kenneth.1 In
three issues, Mother contends the evidence is legally and factually insufficient to
support the termination of her parental rights under Family Code Subsections
161.001(b)(1)(D) and (E) and that the evidence is legally and factually insufficient to
support the trial court’s best-interest finding. In three issues, J.T. similarly contends
that the evidence is legally and factually insufficient to support the termination of his
parental rights under Family Code Subsections 161.001(b)(1)(D) and (E) and that the
evidence is legally and factually insufficient to support the trial court’s best-interest
finding. And in six issues, K.R. contends that the evidence is legally and factually
insufficient to support the termination of his parental rights under Family Code
Subsections 161.001(b)(1)(D), (E), (N), (O), and (Q) and that the evidence is legally
and factually insufficient to support the trial court’s best-interest finding.
To protect the identities of the children in this case, we use aliases to refer to
1
them and initials to refer to their fathers. See Tex. Fam. Code Ann. § 109.002(d); Tex.
R. App. P. 9.8(b)(2).
2
As to Mother’s and K.R.’s complaints relating to Kenneth, we will hold that the
Department of Family and Protective Services (the Department) abandoned its
request to terminate Mother’s and K.R.’s parental rights to Kenneth when
unequivocal testimony was presented at the termination trial that the Department was
not seeking to terminate such rights. We will thus sustain Mother’s and K.R.’s
complaints as to Kenneth. With respect to Mother’s complaint as to Breanna, Hank,
Hudson, and Holly, we will hold that the evidence is legally and factually sufficient to
support the termination of Mother’s parental rights to them under Family Code
Subsections 161.001(b)(1)(D) and (E) and that the evidence is legally and factually
sufficient to support the trial court’s best-interest finding as to them. With respect to
J.T.’s complaint as to Holly, we will hold that the evidence is legally and factually
sufficient to support the termination of his parental rights under Family Code
Subsections 161.001(b)(1)(D) and (E) and that the evidence is legally and factually
sufficient to support the trial court’s best-interest finding. We will thus affirm in part
and reverse and remand in part.
3
II. BACKGROUND
A. Mother, Her Children, Their Fathers, and the Prior Involvement of the
Department
Mother has nine children, consisting of the five that we have described as the
Children, along with four others.2 The nine children, in order of birth, consist of the
following: E.H. (Ezra), N.H. (Natalie), M.H. (Michael), Kenneth, Breanna, Hank,
Hudson, Holly, and E.T. (Emily).3 Ezra’s father is R.Y.—a person not a party to the
underlying case. The father of Natalie and Michael is unknown. K.R. is Kenneth’s
father. C.K.—who is not a party to this appeal—is Breanna’s father. At various times
during this case, Mother indicated that C.K. was the father of Hank and Hudson,
while at other times, Mother indicated that another man was their father.4 J.T. is the
While Mother’s parental rights were terminated as to only the Children, we
2
mention the other four of Mother’s children where relevant to our discussion.
3
Ezra was born in April 2003, Natalie was born in June 2006, Michael was born
in January 2008, Kenneth was born in July 2009, Breanna was born in
November 2010, Hank and Hudson were born in May 2017, Holly was born in
November 2019, and Emily was born in March 2021. Hank and Hudson are twins. It
is unclear from the record which is the older twin.
4
The record reflects that C.K. died in early January 2022 during a break
between the termination trial, which took place over several days in late 2021 and
early 2022. While Mother had indicated that C.K. was the father of Hank and
Hudson prior to C.K.’s death, after C.K.’s death, Mother stated that another man was
their father. The trial court terminated C.K.’s parental rights to Breanna, Hank, and
Hudson in the same order from which Mother, J.T., and K.R. appeal. No appeal was
made pertaining to the termination of C.K.’s parental rights.
4
father of Holly and Emily. At the time of the termination trial, J.T. had been residing
“[o]n and off” with Mother for “a few years.”
Mother is no stranger to the Department. Letitia White, a Department
investigator, testified at the termination trial that the Department had received over
twenty intakes concerning Mother and that the vast majority of the intakes had
resulted in a “reason to believe” finding by the Department. White recounted that in
the prior cases filed by the Department involving Mother, there had been “[l]ots and
lots of domestic violence” and that there had also been “some physical abuse
of . . . the children [where they] had marks and bruises that were not consistent with
the story that [Mother] had given[.]” White further recounted that Mother’s children
had been removed on several prior occasions, detailing that they had been removed
once due to concerns with Mother’s mental health, once because of a “drug case,”
and once after Mother had been placed in jail because of a probation violation.
B. The Department’s 2020 Investigation and Removal of the Children
White testified that she had received two intakes relating to the family in 2020,
one in May 2020 and the other in June 2020. White stated that the first intake
allegation was of neglectful supervision, explaining that Ezra had been smoking
marijuana and that while Mother was aware of Ezra’s marijuana use, she was unable to
5
stop him. Ezra was seventeen at the time of the intake, and he had recently been
returned to Mother’s care on a monitored return.5
White spoke to Mother following the first intake, and Mother told White that
she had tried to stop Ezra from smoking marijuana but that she could not control
what he was doing. White also interviewed Ezra after the first intake, and he
indicated to her that “he had been smoking marijuana for years” and that Mother had
told him not to smoke marijuana in the home. Mother admitted to White that she
also used marijuana, although Mother indicated that she did not use it at home.
Mother told White that she and J.T. would leave the home for the night, use
marijuana, and then return to the home.6 Mother also admitted to White that she had
been using cocaine.
White testified that the second intake regarding the family was an allegation of
physical abuse and medical neglect, explaining that Kenneth had said he was afraid to
go home because he was abused by Mother and his older siblings and that Holly was
losing weight due to problems digesting her formula. White spoke to Mother
following the second intake, and Mother denied the allegations.7 White interviewed
5
White testified that Ezra had a “long history” of smoking marijuana prior to
his return to Mother’s care.
Mother did not indicate who was watching her children when she and J.T. left
6
the home to use marijuana.
7
Mother did admit to White that Kenneth had been hit in the head with a toy,
necessitating stitches. At the termination trial, Mother described that Kenneth had
6
Kenneth, and Kenneth told White that he was afraid to be at Mother’s home, that
Ezra and Natalie hit him and his younger siblings “all the time for anything,” that
Natalie was often left to care for “all of the kids,” and that he was spanked by Ezra
and Natalie. Kenneth also described drug use in the home, explaining that “[J.T.]
smokes marijuana with [Ezra] in the bathroom and on the patio all the time [and] that
the house always smells like marijuana.”8 Kenneth also indicated that “[Mother] stays
in her room all day and smokes marijuana in her room.”9
White visited the family’s home as part of her investigation and observed that
the home smelled like marijuana, with the smell being strongest in Ezra’s room.
White acknowledged that “[t]he home was clean and appropriate . . . for the most
part,” but she also testified that “there was a very strong odor of urine every time
[she] went into the house and into the children’s bedrooms.”
During her investigation, White spoke with Mother and requested that she and
her children be tested for drugs; Mother refused, and the Department sought an order
been hurt while playing with a plastic toy ax with some of the other children. Mother
stated that Ezra was “doing the ax in a throwing direction” and that “the end of the
plastic ax flew off and hit [Kenneth] . . . in his forehead.” Mother stated that she took
Kenneth to the emergency room because he had an open gash and needed stitches.
8
Kenneth was not the only one who recounted to White that J.T. smoked
marijuana with Ezra. White testified that Natalie, Michael, and Breanna also told her
that J.T. had smoked marijuana with Ezra.
9
White testified that in a later interview with Kenneth, Kenneth told her that he
had lied about what he had told her previously, and he asked her why she kept coming
back to his home.
7
to investigate. The order to investigate was granted, and Kenneth, Breanna, Hank,
and Hudson were each tested for drugs in late July 2020. Kenneth tested positive for
cannabinoids, Breanna tested negative for all drugs, Hank tested positive for cocaine
and cannabinoids, and Hudson tested positive for cocaine and cannabinoids. The
Department removed the Children, along with Natalie and Michael, on or about
July 29, 2020, and they were initially placed with various family members.10
Approximately one week after the Children were removed, Holly’s hair was collected
and submitted for a drug test. Holly’s hair sample tested positive for amphetamine,
methamphetamine, cocaine, and cannabinoids.
Around the time of removal, the Department filed its petition for termination.
In its live petition, the Department sought termination of Mother’s parental rights to
the Children, Natalie, and Michael based on the predicate termination grounds set
forth in, among other subsections, Subsections (D) and (E) of Section 161.001(b)(1)
of the Family Code; the Department sought termination of J.T.’s parental rights to
Holly based on the predicate termination grounds set forth in, among other
subsections, Subsections (D) and (E) of Section 161.001(b)(1) of the Family Code;
and the Department sought termination of K.R.’s parental rights to Kenneth based on
the predicate termination grounds set forth in, among other subsections, Subsections
White testified that she did not remove Ezra because he “left the house in an
10
Uber” on his own.
8
(D), (E), (N), (O), and (Q) of Section 161.001(b)(1) of the Family Code. See Tex.
Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O), (Q).
C. The Service Plans Developed for Mother, J.T., and K.R.
At the termination trial, Amy Rodgers, the OCOK11 permanency specialist
assigned to the case, testified that she developed service plans for Mother, J.T., and
K.R. Rodgers testified that she provided Mother and J.T. copies of their respective
service plans in person and that she provided K.R. with a copy of his service plan by
mail because he was incarcerated.12
1. Mother’s Service Plan and Evidence of Drug Use
Mother’s service plan required that she complete parenting classes, FOCUS for
Mothers13 classes, and individual counseling. It also required that she complete a drug
and alcohol assessment, that she complete a psychological evaluation, that she submit
to random drug testing, and that she maintain stability with employment and housing.
Rodgers testified that Mother had substantially complied with her service plan. To
11
As our court has explained, “OCOK is a private provider of community-
based care that contracts with the Department to provide ‘foster care case
management, kinship, and family reunification services’ in parts of the state, including
Tarrant County.” In re M.M., No. 02-21-00153-CV, 2021 WL 4898665, at *2 n.4 (Tex.
App.—Fort Worth Oct. 21, 2021, pet. denied) (mem. op.).
Rodgers testified that K.R. had been incarcerated throughout the pendency of
12
the Department’s case.
13
Mother explained that FOCUS for Mothers classes differed from typical
parenting classes in that they taught mothers to become better parents by focusing on
themselves.
9
that end, Rodgers testified that Mother completed parenting classes, completed
FOCUS for Mothers classes, and that she was engaged in individual and family
counseling and had completed a psychological evaluation. Mother testified that she
had also completed a drug assessment and drug classes, that she had been living in the
same apartment for over three years, and that she had two jobs, one of which she had
held for two years.
As to Mother’s drug use, Mother admitted that she had used marijuana “a few
months prior to the children being removed,” and she acknowledged that she had
previously been incarcerated “for maybe two months” stemming from possession of
marijuana. In December 2020—five months after removal—Mother’s hair was tested
for drugs, and the results were positive for cocaine. Those test results indicated that
Mother had a cocaine metabolite level of 3856. Three months later, in March 2021,
Mother again tested positive for cocaine. Those test results indicated that Mother had
a cocaine metabolite level of 4026. Mother had expressed to Rodgers that she was
not sure why she tested positive for cocaine on those occasions, maintaining that she
had not used cocaine since the beginning of the case. To that end, Mother testified
that she had last used cocaine in August 2020 and that she had also used cocaine
“[m]aybe a few months prior to that.” When asked how many times she had used
cocaine during 2020, Mother stated, “I don’t know. I don’t keep count.”
10
2. J.T.’s Service Plan and Evidence of Drug Use
J.T.’s service plan required that he complete parenting classes, FOCUS for
Fathers classes, and individual counseling. It also required that he complete a drug
and alcohol assessment and that he submit to random drug testing. J.T. testified that
he had completed parenting classes, FOCUS for Fathers classes, individual
counseling, and a drug and alcohol assessment. Rodgers confirmed that J.T. had
completed a majority of his services, but she also recounted that he had missed two
drug tests—one in November 2021 and one in December 2021. Rodgers also
testified that J.T. tested positive for opiates during the case, with the test results
indicating that J.T.’s urine had been collected in May 2021 and found to be positive
for codeine and morphine. J.T. explained that the positive test result occurred
because he had sustained a work injury the day before the test and that he had taken
Tylenol 3, a controlled substance.14 J.T. admitted that he did not have a prescription
for the Tylenol 3, and he pled the Fifth Amendment when asked whether he had
received the Tylenol 3 from Mother.15 Rodgers testified that J.T. had told her that he
had received the medication that caused the positive test result from Mother.
14
See Miles v. State, 357 S.W.3d 629, 640 n.5 (Tex. Crim. App. 2011) (Cochran, J.,
concurring) (explaining that Tylenol 3 is a “type of medicinal codeine [that] falls into
Penalty Group 3”); see Tex. Health & Safety Code Ann. § 481.104 (Penalty Group 3).
15
Mother was working in a nursing home as a geriatric nurse at the time of the
termination trial.
11
At the termination trial, J.T. was asked whether he had smoked marijuana “with
children,” and J.T. admitted that he had smoked marijuana with children “[p]robably
one time in the past.”16 Mother testified that she knew that J.T. had smoked
marijuana with Ezra “a couple of times” and that she had told J.T. that she thought it
was inappropriate. Mother acknowledged that J.T. smoked marijuana with Ezra even
after she had told him that it was inappropriate and that she again told J.T. that it was
inappropriate. J.T. also admitted that he had used cocaine “once [or] twice” in the
past, although he could not recall when he had last used cocaine.
3. K.R.’s Service Plan
K.R.’s service plan required that he complete parenting classes, domestic
violence classes, and individual counseling. The record reflects very little regarding
K.R.’s attempts to complete his service plan—for that matter, the record reflects very
little regarding K.R. Rodgers simply testified that K.R. had taken multiple classes
while incarcerated.
D. Emily’s Birth and Her Positive Drug Test
Emily was born in March 2021, during the pendency of this case. Kimara
Burnside, an investigator with Child Protective Services, testified that she had received
an intake pertaining to Emily in April 2021 following an incident where “[Mother] had
provided [Emily] with large doses of children’s Benadryl.” Mother explained that she
It is unclear from J.T.’s testimony who he was referring to when he admitted
16
to smoking “with children.”
12
had been very exhausted and had not noticed how much Benadryl she was providing
Emily. Emily was later removed from Mother in April 2021. Four days after
removal, Emily’s hair was collected and submitted for a drug test. The test came back
positive for amphetamine and methamphetamine.17
E. Evidence of Domestic Violence
Mother testified of numerous past instances where she had been the victim of
domestic violence. She stated that from 2005 through 2008, she was in a relationship
with a man—not one of her children’s fathers—who perpetrated domestic violence
against her “[t]he whole time [they] were together.” Mother also testified that
domestic violence occurred between her and K.R., although she did not elaborate on
that violence.18 Mother testified that some of the domestic-violence incidents had
occurred in front of her children.
As to J.T., Mother testified that she had to call the police on “[m]aybe three”
occasions due to domestic-violence incidents involving J.T. She stated that she had
called the police in December 2018 due to an incident with J.T. and that he was
convicted of assault bodily injury of a family member as a result of that incident.
Mother also described calling the police after an incident that occurred in May 2019,
Mother and J.T. were tested for drugs around this time, and they both tested
17
negative.
Mother testified that K.R. had been convicted of assaulting other women,
18
although, again, Mother did not elaborate.
13
while she was pregnant with Holly, where J.T. wanted Mother to give him money to
buy marijuana. Mother testified that an argument ensued between them, that she left
her home after the argument, and that she later got a call from a neighbor saying that
Mother’s home had been set on fire. Mother also testified that she had called the
police in April 2020 after J.T. broke a window in her apartment and that all of her
children were present when that incident occurred. Nonetheless, Mother testified that
she could not recall any instances of domestic violence involving J.T. that had
occurred in front of her children. Mother also described an incident that occurred in
September 2020—while she was pregnant with Emily—where she and J.T. got into an
argument and he struck her in the face.19
At the termination trial, J.T. testified that he had a pending assault case. J.T.
pled the Fifth Amendment when asked whether that assault case stemmed from a
September 2020 incident where he struck Mother “with a closed fist two to three
times.” J.T. also pled the Fifth Amendment when asked whether he had struck
Mother in May 2019, when asked whether he had ever assaulted Mother while she was
pregnant with Holly or Emily, and when asked whether he had assaulted Mother in
December 2018 while Hank and Hudson were present. J.T. also pled the Fifth
Amendment when asked whether his bond conditions stemming from the pending
19
Mother testified that she could not recall whether J.T. punched or slapped her
on this occasion. Burnside, however, testified that Mother had told her that J.T. had
hit Mother’s face with a closed fist while Mother was pregnant with Emily.
14
assault case prevented him from contact with Mother and when asked whether he had
been living with Mother throughout the case.20
F. The Children’s Placements and Rodgers’s Testimony that the Department
was Not Seeking Termination as to Kenneth
Rodgers, the OCOK permanency specialist, testified that Breanna and Holly
were living in a foster home that was adoption motivated and that they had bonded
well with the foster family.21 The foster father for Breanna and Holly testified that he
would make efforts for the siblings to see each other if they were placed separately.
Rodgers testified that Hank and Hudson were also living in a foster home that was
adoption motivated and that they had bonded well with the foster family. Rodgers
testified that the foster parents were meeting the respective needs of Breanna, Holly,
Hank, and Hudson. Rodgers testified that Kenneth was living in a temporary
emergency placement in a foster home setting. She indicated that Kenneth had been
placed in that setting because of “significant concerns with his aggressive
behaviors.”22
20
J.T.’s criminal defense attorney testified that one of J.T.’s bond conditions
was that he have no contact with Mother, and any contact with Mother would have
violated J.T.’s bond conditions. The record reflects that J.T. had been living with
Mother during at least part of the time that the bond conditions were imposed.
21
Emily was also living in the foster home with Breanna and Holly.
22
Rodgers testified that Kenneth had been “in about 13 placements” since
removal, including being hospitalized in a psychiatric hospital on “at least five
occasions.”
15
Notably, at the termination trial, Rodgers stated that the Department was
asking the trial court to terminate the respective parents’ parental rights to the four
youngest children involved in the suit—Breanna, Hank, Hudson, and Holly—but that
the Department was not asking the trial court to terminate the respective parents’
parental rights to the three oldest children involved in the suit—Natalie, Michael, and
Kenneth. Later in the trial, Rodgers confirmed that the Department was not seeking
termination for the “three oldest kids in this case,” and Rodgers clarified that the
“three oldest kids in this case” referred to Natalie, Michael, and Kenneth.
G. The Trial Court’s Interviews of Natalie, Michael, Kenneth, and Breanna
As part of the termination trial, the trial court interviewed Natalie, Michael,
Kenneth, and Breanna in chambers, and a record of the interviews was made part of
the record in this case. See Tex. Fam. Code Ann. § 153.009(a), (b), (f).
During the trial court’s interview of Natalie, Natalie stated that she desired to
stay with Mother and that she wanted to be with her family. Natalie also stated that
she never saw drugs at Mother’s home and that the men at Mother’s home were “all
right.”
During the trial court’s interview of Michael, Michael stated that there were
certain things he liked about living with Mother—like going out to eat and going to
different places—but he also stated that one thing he did not like about living with
Mother was that he was subjected to “[a]buse.” Michael indicated that Mother
“would beat [the children] with, like different things.” When asked by the trial court
16
what kind of things Mother would hit the children with, Michael indicated that he did
not want to tell the trial court because he was afraid that he would not go home if he
told. Michael was asked by the trial court if there were “men that were bad” at
Mother’s house; Michael answered “[m]ainly one” and indicated that he was referring
to J.T. While Michael indicated that he desired to be returned to Mother and his
siblings, he also stated that he did not know whether he would be safe at Mother’s
home.
During the trial court’s interview of Kenneth, Kenneth stated that living with
Mother was “a nightmare.” When asked by the trial court to elaborate, Kenneth
indicated that while living with Mother, he would “be scared for [his] life to go ask her
for something.” Kenneth also indicated that he was worried that if Mother had
another baby, she was going to tell the other children to take care of the baby because
“she sleeps all day because she works in the nighttime.” Kenneth stated that he did
not want to go back to living with Mother. As to J.T., Kenneth described J.T. as the
“boyfriend that burned down the other house,” and while Kenneth stated that J.T.
had never hurt him, Kenneth indicated that J.T. had hurt Mother, stating, “[J.T.]
knocked her out.” Kenneth stated that he liked the foster home in which he was
living but that the foster mother could not adopt him.
During the trial court’s interview of Breanna, Breanna stated that she was safe
and happy with her current placement with her foster family. Breanna acknowledged,
however, that she also felt safe with Mother and that she would prefer to “go back
17
home” with Mother. But Breanna also indicated that she did “[n]ot really” remember
living with Mother.
H. The Termination Order
Following the termination trial, the trial court issued a ruling finding that:
(1) Mother had engaged in conduct under Subsections (D) and (E) of Family Code
Section 161.001(b)(1) and that termination of Mother’s parental rights was in the best
interest of the Children, including Kenneth; (2) termination of Mother’s parental
rights to Natalie and Michael was not in the best interest of Natalie and Michael;
(3) J.T. had engaged in conduct under Subsections (D) and (E) of Family Code
Section 161.001(b)(1) and that termination of J.T.’s parental rights was in Holly’s best
interest; and (4) K.R. had engaged in conduct under Subsections (D), (E), (N), (O),
and (Q) of Family Code Section 161.001(b)(1) and that termination of K.R.’s parental
rights was in Kenneth’s best interest. Mother, J.T., and K.R. appeal from that
termination order.
III. DISCUSSION
A. The Department’s Abandonment of Its Pleadings to Terminate Mother’s
and K.R.’s Parental Rights to Kenneth
As a preliminary matter, we will address whether the Department abandoned
its pleadings to terminate Mother’s and K.R.’s parental rights to Kenneth. That issue
is implicated by Mother’s and K.R.’s respective complaints that the evidence is legally
and factually insufficient to support the trial court’s termination order. See Tex. R.
18
App. P. 38.1(f) (providing that issue will be treated as covering every subsidiary
question fairly included).
A trial court’s final order must be supported by the pleadings. In re E.H.,
No. 04-20-00440-CV, 2021 WL 799890, at *2 (Tex. App.—San Antonio Mar. 3, 2021,
no pet.) (mem. op.). An order terminating parental rights that is not supported by a
pleading seeking termination of the parent–child relationship is erroneous and
reversible. Id.; In re T.M., No. 07-20-00103-CV, 2020 WL 4773207, at *2 (Tex.
App.—Amarillo Aug. 17, 2020, no pet.) (mem. op.). When a party abandons a claim
that it had made in its live pleading, that pleading will no longer support a judgment
on the abandoned claim. E.H., 2021 WL 799890, at *2 (citing T.M., 2020 WL
4773207, at *3). “A party abandons a pleading when it unequivocally states in open
court it no longer seeks the pleaded relief.” Id. Formal amendment of the pleadings
is not required to show abandonment; a stipulation or admission made in a judicial
proceeding by the parties or their attorneys may form the basis for abandonment.
T.M., 2020 WL 4773207, at *2; In re M.F.L., No. 10-16-00256-CV, 2016 WL 7477929,
at *1 (Tex. App.—Waco Dec. 28, 2016, no pet.) (mem. op.). Whether a party has
abandoned a pleading is a question of law that we review de novo. E.H., 2021 WL
799890, at *2; T.M., 2020 WL 4773207, at *2.
Here, the Department filed its live pleading on October 6, 2021, which was the
first day of the termination trial. In that pleading, the Department sought the
termination of Mother’s parental rights as to Kenneth and sought the termination of
19
K.R.’s parental rights as to Kenneth. At a later date in the termination trial—
January 25, 2022—Rodgers testified as follows:
[Department’s Counsel]: So you’re asking the Court to terminate
the parents’ parental rights as to the four youngest but not the three
oldest; is that right?
[Rodgers]: Correct.
...
[Attorney Guardian Ad Litem for Natalie and Michael]: Now,
you testified here today that the Department is not seeking termination
for the three oldest kids in this case; is that correct?
[Rodgers]: Yes.
[Attorney Guardian Ad Litem for Natalie and Michael]: And
that’s [Natalie], [Michael], and [Kenneth], correct?
[Rodgers]: Yes.
In reviewing the above exchange, we first examine whether Rodgers’s
testimony should be imputed to the Department. We note that Rodgers described
herself as the OCOK permanency specialist at the termination trial—not as a
Department employee. But, as we discussed above, OCOK contracts with the
Department to provide case management services for the Department in Tarrant
County. M.M., 2021 WL 4898665, at *2 n.4. In a recent opinion, we stated that an
OCOK caseworker “effectively served as the Department’s agen[t].” In re A.O.,
No. 02-21-00376-CV, 2022 WL 1257384, at *4 n.11 (Tex. App.—Fort Worth Apr. 28,
2022, pet. denied) (mem. op.). And, curiously, we note that in the Department’s
20
response brief to K.R.—a response brief that requested reversal of the trial court’s
termination order as to K.R.—the Department referenced that it had abandoned its
efforts to terminate K.R.’s parental rights, pointing to a different exchange by Rodgers
at the termination trial where she stated that the Department did not wish to
terminate the parental rights of K.R. Given that the Department concedes that
reversal is proper as to K.R. because Rodgers testified that the Department did not
wish to terminate K.R.’s parental rights, we fail to see why Rodgers’s broader
testimony that the Department did not seek termination of any of the parents’
respective parental rights to Kenneth would be unavailing. Rodgers’s testimony is
thus imputed to the Department.
We next examine whether Rodgers’s testimony was unequivocal. Unequivocal
means “[u]nambiguous; clear; free from uncertainty.” Unequivocal, Black’s Law
Dictionary (11th ed. 2019). Here, Rodgers’s testimony was unambiguous, clear, and
free from uncertainty. She testified, in no uncertain terms, that the Department was
not seeking termination as to Kenneth. The one issue that arguably could have
muddied the waters—whether Kenneth was one of the “three oldest kids in this
case”—was cleared up when Rodgers confirmed that she was referring to Natalie,
Michael, and Kenneth.
Because the Department unequivocally stated in open court that it was not
seeking termination as to Kenneth, we hold that the Department abandoned its
pleadings to terminate Mother’s and K.R.’s parental rights to Kenneth. See E.H.,
21
2021 WL 799890, at *2 (holding that Department abandoned its pleadings seeking
termination of parent’s parental rights when Department caseworker expressly
testified that Department was not seeking termination of such rights and
Department’s attorney announced at the beginning of trial that Department was no
longer seeking termination of such rights); T.M., 2020 WL 4773207, at *3 (holding
that Department abandoned its pleadings seeking termination of parent’s parental
rights when Department caseworker expressly testified that Department was not
seeking termination of such rights). We thus sustain Mother’s three issues as they
relate to Kenneth, and we sustain K.R.’s six issues.
B. Conduct Grounds
In their first two respective issues, Mother and J.T. each argue that the evidence
is legally and factually insufficient to support termination under Family Code
Subsections 161.001(b)(1)(D) and (E).
1. Standard of Review
For a trial court to terminate a parent–child relationship, the party seeking
termination must prove two elements by clear and convincing evidence: (1) that the
parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and
(2) that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b);
In re E.N.C., 384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex.
2005). Evidence is clear and convincing if it “will produce in the mind of the trier of
22
fact a firm belief or conviction as to the truth of the allegations sought to be
established.” Tex. Fam. Code Ann. § 101.007; E.N.C., 384 S.W.3d at 802.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged findings
to determine whether a reasonable factfinder could form a firm belief or conviction
that the finding is true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We assume that
the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable
factfinder could have done so. Id. We disregard all evidence that a reasonable
factfinder could have disbelieved, and we consider undisputed evidence even if it is
contrary to the finding. Id. That is, we consider evidence favorable to the finding if a
reasonable factfinder could, and we disregard contrary evidence unless a reasonable
factfinder could not. See id. The factfinder is the sole judge of the witnesses’
credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the factfinder’s findings and do not supplant them with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to
decide whether a factfinder could reasonably form a firm conviction or belief that the
Department proved the conduct grounds. See Tex. Fam. Code Ann.
23
§ 161.001(b)(1)(D), (E); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder
reasonably could form such a firm conviction or belief, then the evidence is factually
sufficient. C.H., 89 S.W.3d at 18–19.
2. Applicable Law
Subsections (D) and (E) provide that the trial court may order the termination
of a parent’s rights if it finds by clear and convincing evidence that the parent has
(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or
emotional well-being of the child; [or]
(E) engaged in conduct or knowingly placed the child with persons
who engaged in conduct which endangers the physical or
emotional well-being of the child[.]
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).
“Endanger” means to expose to loss or injury, to jeopardize. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.—Fort Worth 2003, no pet.). Under Subsection (D), it is necessary to
examine the evidence related to the environment of the child to determine if the
environment was the source of the endangerment to the child’s physical or emotional
well-being. J.T.G., 121 S.W.3d at 125. The conduct of a parent in the home can
create an environment that endangers the physical and emotional well-being of a
child. Id. For example, “abusive or violent conduct by a parent or other resident of a
child’s home may produce an environment that endangers the physical or emotional
well-being of a child.” Id. Illegal drug use by the parent and drug-related criminal
24
activity by the parent “likewise support[] the conclusion that the child[]’s surroundings
endanger [his] physical or emotional well-being.” Id.Under Subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical well-being was the direct result of the parent’s
conduct, including acts, omissions, or failures to act. See id.; see also Tex. Fam. Code
Ann. § 161.001(b)(1)(E). Termination under Subsection (E) must be based on more
than a single act or omission; a voluntary, deliberate, and conscious course of conduct
by the parent is required. J.T.G., 121 S.W.3d at 125. It is not necessary, however, that
the parent’s conduct be directed at the child or that the child actually suffer injury.
Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific danger to a child’s
well-being may be inferred from parental misconduct standing alone. In re R.W.,
129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). “As a general rule,
conduct that subjects a child to a life of uncertainty and instability endangers the
physical and emotional well-being of a child.” Id. Illegal drug use and its effect on the
parent’s life and her ability to parent may establish an endangering course of conduct.
Id. Criminal activity that exposes the parent to incarceration may also endanger a
child. In re I.L., No. 02-18-00206-CV, 2018 WL 5668813, at *5 (Tex. App.—Fort
Worth Nov. 1, 2018, no pet.) (mem. op.); In re A.N.D., No. 02-12-00394-CV,
2013 WL 362753, at *2 (Tex. App.—Fort Worth Jan. 31, 2013, no pet.) (mem. op.).
“Domestic violence, want of self[-]control, and propensity for violence may [also] be
considered as evidence of endangerment.” In re J.I.T.P., 99 S.W.3d 841, 845 (Tex.
25
App.—Houston [14th Dist.] 2003, no pet.). We may consider conduct that occurred
outside the child’s presence in our review. Walker v. Tex. Dep’t of Family & Protective
Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
3. Analysis as to Mother
Because the evidence pertaining to Subsections (D) and (E) is interrelated, we
conduct a consolidated review of those Subsections. See In re S.H., No. 02-17-00188-
CV, 2017 WL 4542859, at *10 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem.
op.); In re T.N.S., 230 S.W.3d 434, 439 (Tex. App.—San Antonio 2007, no pet.).
Here, the record reflects that Mother has had a persistent problem with illegal
drugs. When White investigated the Department’s concerns prior to removal, Mother
admitted to using marijuana and cocaine. While Mother told White that she did not
use marijuana at home, Kenneth told White that “[Mother] stays in her room all day
and smokes marijuana in her room.” At trial, Mother admitted to using marijuana “a
few months prior to the children being removed,” and Mother stated that she had
used cocaine in the months prior to removal. Mother’s use of illegal drugs continued
after removal. Mother testified that she had last used cocaine in August 2020—the
month following removal.23 And Mother tested positive for cocaine in December
2020 and March 2021, with her cocaine metabolite levels increasing from 3856 to
4026 over that period.
While Mother testified that she had last used cocaine in August 2020, she told
23
Rodgers that she had not used cocaine since the beginning of the Department’s case.
26
The record reflects that Mother’s drug problems flowed down to her children.
Kenneth, Hank, and Hudson were all tested for drugs in late July 2020—around the
time of removal. Kenneth tested positive for cannabinoids, Hank tested positive for
cocaine and cannabinoids, and Hudson tested positive for cocaine and cannabinoids.
Approximately a week after removal, Holly was tested for drugs, and she tested
positive for amphetamine, methamphetamine, cocaine, and cannabinoids. The record
also indicates that Ezra smoked marijuana in Mother’s home, sometimes with J.T.,
and Mother’s attempts to stop them were unsuccessful.24
Mother also had a history of involving herself in relationships with violent men.
Mother described being in a relationship with a man from 2005 through 2008 who
was violent toward her “[t]he whole time [they] were together.” She also testified that
domestic violence occurred between her and K.R. She described numerous domestic-
violence incidents involving J.T., with incidents occurring in 2018, 2019, and 2020.
Following one incident with J.T., her house was set on fire, J.T. broke her window
during another incident, and J.T. struck her in the face during an incident while she
was pregnant with Emily. J.T. was convicted of assault as a result of one of those
incidents, and he had a pending assault case at the time of the termination trial.
24
In her brief, Mother argues that “[t]he issues surrounding any alleged drug use
in the home [were] created by the Department, not [Mother],” referring to the
Department returning Ezra to Mother despite knowledge of his marijuana use. We
disagree with Mother’s characterization. As detailed above, Mother had her own
problems with drugs, and there was evidence that she used drugs in the home.
27
In her brief, Mother minimalizes the domestic violence, claiming that “[t]here
was no domestic violence in front of the [C]hildren and none of the [C]hildren
reported exposure to domestic violence.” The record suggests otherwise. During the
trial court’s interview with Michael, Michael indicated that J.T. was a bad man.
Michael also indicated that he did not know whether he would be safe at Mother’s
home, stating that one thing he did not like about living with Mother was that he was
subject to “abuse.”25 During Kenneth’s interview with the trial court, Kenneth stated
that living with Mother was “a nightmare” and he would “be scared for [his] life to go
ask [Mother] for something.” Describing J.T. as the “boyfriend that burned down the
other house,” Kenneth stated that J.T. had “knocked [Mother] out.” Moreover,
Mother testified that her children were present during the incident where J.T. broke
the window and that other past domestic-violence incidents with partners other than
J.T. had occurred in front of her children.
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the factfinder is the sole arbiter of the witnesses’
credibility and demeanor, we hold that there is some evidence of an endangering
environment on which a reasonable factfinder could have formed a firm belief or
conviction that Mother had knowingly placed or had knowingly allowed Breanna,
25
Michael stated that Mother would beat her children with “like different
things,” but he did not want to tell the trial court what objects Mother would hit the
children with because he was afraid that he would not go home if he told.
28
Hank, Hudson, and Holly to remain in conditions or surroundings that endangered
their emotional or physical well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D).
And we hold that there is some evidence of endangering conduct on which a
reasonable factfinder could have formed a firm belief or conviction that Mother had
engaged in conduct that endangered their physical or emotional well-being. See id.§ 161.001(b)(1)(E).
Giving due deference to the factfinder’s endangering-environment and
endangering-conduct findings, without supplanting the factfinder’s judgment with our
own, and after reviewing the entire record, we hold that a factfinder could reasonably
form a firm conviction or belief that Mother had knowingly placed or had knowingly
allowed Breanna, Hank, Hudson, and Holly to remain in conditions or surroundings
that endangered their emotional or physical well-being and that Mother had engaged
in conduct that endangered their physical or emotional well-being. See id.
§ 161.001(b)(1)(D), (E). We thus overrule Mother’s first and second issues as they
relate to Breanna, Hank, Hudson, and Holly.
4. Analysis as to J.T.
As previously noted, we conduct a consolidated review of Subsections (D) and
(E). See S.H., 2017 WL 4542859, at *10; T.N.S., 230 S.W.3d at 439.
Here, the record reflects that J.T. also had a problem with illegal drugs.
Multiple witnesses recounted that J.T. smoked marijuana with Ezra at the family’s
home, with Kenneth stating that “[J.T] smokes marijuana with [Ezra] in the bathroom
29
and on the patio all the time[.]” Mother testified that she had told J.T. that his
smoking marijuana with Ezra was inappropriate, but J.T. continued to smoke
marijuana with Ezra. At the termination trial, J.T. admitted to smoking marijuana
“with children” at “[p]robably one time in the past,” and he admitted that he had used
cocaine “once [or] twice” in the past.
J.T.’s drug problems did not stay buried in the past. Rodgers testified that J.T.
had missed two drug tests—one in November 2021 and one in December 2021—and
that the Department considered a no-show on a drug test to be an “assumed positive
result.” The record also reflects that J.T. tested positive for opiates during this case.
Although J.T. explained that this positive test result was due to taking Tylenol 3
following a work injury, he admitted that he did not have a prescription for Tylenol 3.
The record also reflects that J.T. had a propensity for domestic violence. As
detailed above, Mother described numerous domestic-violence incidents involving
J.T., some of which occurred while she was pregnant, one of which resulted in an
assault conviction, and another which resulted in an assault charge that was pending at
the time of the termination trial. When asked about some of his domestic-violence
incidents with Mother, J.T. pled the Fifth Amendment. He pled the Fifth
Amendment with respect to whether he had struck Mother with a closed fist in
September 2020, when asked whether he had struck Mother in May 2019, with
respect to whether he had ever assaulted Mother while she was pregnant with Holly
30
or Emily, and when asked whether he had assaulted Mother in December 2018 while
Hank and Hudson were present.
The trial court was permitted to draw negative inferences from J.T.’s repeated
invocations of the Fifth Amendment. See In re E.S., No. 12-20-00282-CV, 2021 WL
2483788, at *5 (Tex. App.—Tyler June 17, 2021, pet. denied) (mem. op.) (“In a civil
case, including a termination of parental rights case, a fact finder may draw an adverse
inference against a party who pleads the Fifth Amendment.”); In re M.A.A., No. 01-
20-00709-CV, 2021 WL 1134308, at *26 (Tex. App.—Houston [1st Dist.] Mar. 25,
2021, no pet.) (mem. op.) (similar); see also Tex. R. Evid. 513(c). The record further
reflects that J.T.’s bond conditions required that he have no contact with Mother and
that he had been living with Mother at least part of the time that the bond conditions
were imposed.26
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the factfinder is the sole arbiter of the witnesses’
credibility and demeanor, we hold that there is some evidence of an endangering
environment on which a reasonable factfinder could have formed a firm belief or
conviction that J.T. had knowingly placed or had knowingly allowed Holly to remain
in conditions or surroundings that endangered her emotional or physical well-being.
J.T. pled the Fifth Amendment when asked whether his bond conditions
26
prevented him from contact with Mother and when asked whether he had been living
with Mother throughout this case.
31
See Tex. Fam. Code Ann. § 161.001(b)(1)(D). And we hold that there is some
evidence of endangering conduct on which a reasonable factfinder could have formed
a firm belief or conviction that J.T. had engaged in conduct that endangered her
physical or emotional well-being. See id. § 161.001(b)(1)(E).
Giving due deference to the factfinder’s endangering-environment and
endangering-conduct findings, without supplanting the factfinder’s judgment with our
own, and after reviewing the entire record, we hold that a factfinder could reasonably
form a firm conviction or belief that J.T. had knowingly placed or had knowingly
allowed Holly to remain in conditions or surroundings that endangered her emotional
or physical well-being and that J.T. had engaged in conduct that endangered her
physical or emotional well-being. See id. § 161.001(b)(1)(D), (E). We thus overrule
J.T.’s first and second issues.
C. Best Interest
In their third respective issues, Mother and J.T. each argue that the evidence is
legally and factually insufficient to support the trial court’s respective best-interest
findings.
1. Standard of Review and Applicable Law
We review the parties’ respective challenges to the sufficiency of the trial
court’s best-interest findings under the same review standards stated above regarding
the conduct grounds. Although we generally presume that keeping a child with a
parent is in the child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the
32
best-interest analysis is child-centered, focusing on the child’s well-being, safety, and
development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). Evidence that is probative
of the predicate grounds under Section 161.001(b)(1) may also be probative of best
interest under Section 161.001(b)(2). In re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013);
C.H., 89 S.W.3d at 28. We also consider the evidence in light of the following
nonexclusive factors that the factfinder may apply in determining the child’s best
interest:
• the child’s desires;
• the child’s emotional and physical needs now and in the future;
• the emotional and physical danger to the child now and in the future;
• the parental abilities of the individuals seeking custody;
• the programs available to assist these individuals to promote the child’s best
interest;
• the plans for the child by these individuals or by the agency seeking custody;
• the stability of the home or proposed placement;
• the parent’s acts or omissions that may indicate that the existing parent–child
relationship is not a proper one; and
• the parent’s excuse, if any, for the acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see E.C.R., 402 S.W.3d at 249;
E.N.C., 384 S.W.3d at 807. These factors do not form an exhaustive list, and some
factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore,
undisputed evidence of just one factor may suffice in a particular case to support a
33
finding that termination is in the child’s best interest. Id. On the other hand, the
presence of paltry evidence relevant to each factor will not support such a finding.
Id.; In re C.G., No. 02-20-00087-CV, 2020 WL 4518590, at *7 (Tex. App.—Fort
Worth Aug. 6, 2020, pet. denied) (mem. op.); In re J.B., No. 02-18-00034-CV,
2018 WL 3289612, at *4 (Tex. App.—Fort Worth July 5, 2018, no pet.) (mem. op.).
2. Analysis as to Mother
As to Breanna’s, Hank’s, Hudson’s, and Holly’s emotional and physical needs
now and in the future and the emotional and physical danger to them now and in the
future, the record reflects, as detailed above, that Mother has a continuing pattern of
staying with violent partners. The record reflects that she continued to live with a
violent partner for a while even after the latest September 2020 domestic-violence
incident. While Mother testified at the termination trial that J.T. had moved into a
hotel and that they were not living together anymore, a factfinder may measure a
parent’s future conduct by her past conduct, and the trial court could have inferred
that domestic violence would continue to be a problem for Mother now and in the
future. See In re R.H., No. 02-19-00273-CV, 2019 WL 6767804, at *5 (Tex. App.—
Fort Worth Dec. 12, 2019, pet. denied) (mem. op.); In re E.M., 494 S.W.3d 209, 226
(Tex. App.—Waco 2015, pet. denied).
The trial court could have likewise inferred that Mother’s drug problems were
going to continue. Because Mother had a continuing pattern of drug abuse, as
detailed above, the trial court could have inferred from Mother’s past history of drug
34
use that she did not have the ability to meet Breanna’s, Hank’s, Hudson’s, and Holly’s
physical and emotional needs now and in the future. See R.H., 2019 WL 6767804, at
*5 (“The trial court could have inferred from [father’s] past history of instability,
criminal conduct, and drug use that [father] did not have the ability to meet [child’s]
physical and emotional needs in the future.”). The trial court was entitled to find that
these factors weighed in favor of terminating Mother’s parental rights to Breanna,
Hank, Hudson, and Holly.
As to the plans for Breanna, Hank, Hudson, and Holly and as to the stability of
the home or proposed placement, the record reflects that Breanna and Holly were
living in an adoption-motivated foster home with Emily and that they had bonded
well with their foster family.27 The record further reflects that Hank and Hudson
were also living in an adoption-motivated foster home and that they had bonded well
with their foster family. Rodgers testified that the respective foster parents were
meeting the respective needs of Breanna, Hank, Hudson, and Holly. While Mother
27
In her brief, Mother complains about the care that Breanna and Holly were
receiving from the foster family. She complains that the foster father refused to
address Breanna by her given name, that the foster father had posted a photo of
Breanna and Holly on social media labeling one photo “my girls,” that he had
exhibited “grooming-type behaviors,” and that he had placed Breanna on food
restrictions. At trial, the foster father addressed these concerns, explaining that
Breanna went by a nickname that she chose for herself that was a shortened form of
her given name, that Breanna had been placed on food restrictions upon the advice of
a doctor, that he had removed the complained-of social media photo as soon as he
knew it was an issue, and that he had simply taken Breanna on a “daddy-daughter”
date. The trial court, as the sole judge of the foster father’s credibility and demeanor,
was entitled to accept the foster father’s testimony. See J.O.A., 283 S.W.3d at 346.
35
indicated that she planned for the children to be returned to her and that she hoped
to change her work schedule so that she could spend more time with them, the record
reflects years of instability in Mother’s home life, with a multitude of Department
intakes and numerous removals of Mother’s children. The trial court was entitled to
find that these factors weighed in favor of terminating Mother’s parental rights to
Breanna, Hank, Hudson, and Holly.
Viewing the evidence in the light most favorable to the trial court’s best-
interest finding, we hold that a reasonable factfinder could have reasonably formed a
firm conviction or belief that termination of the parent–child relationship between
Mother and Breanna, Hank, Hudson, and Holly was in their best interest, and we
therefore hold that the evidence is legally sufficient to support the trial court’s best-
interest finding as to them. See Tex. Fam. Code Ann. § 161.001(b)(2); J.P.B.,
180 S.W.3d at 573. Based on our exacting review of the entire record and giving due
deference to the factfinder’s findings, we likewise conclude that the evidence is
factually sufficient to support the trial court’s best-interest finding as to them. See
C.H., 89 S.W.3d at 18–19. Accordingly, we overrule Mother’s third issue as it relates
to Breanna, Hank, Hudson, and Holly.
3. Analysis as to J.T.
As to Holly’s emotional and physical needs now and in the future and the
emotional and physical danger to Holly now and in the future, the record reflects, as
detailed above, that J.T. has a continuing pattern of domestic violence and criminal
36
activity. Evidence was presented that he had been violent toward Mother on several
occasions in the past, including while Mother was pregnant, that he had been
convicted of assault against Mother, and that he had a pending assault charge. When
J.T. was asked about some of these incidents, he pled the Fifth Amendment. As
noted above, the trial court was free to draw negative inferences from J.T.’s repeated
invocations of the Fifth Amendment. See E.S., 2021 WL 2483788, at *5; M.A.A.,
2021 WL 1134308, at *26; see also Tex. R. Evid. 513(c).
The record further reflects, as detailed above, that J.T. had problems with drug
abuse both before and after removal. The trial court could have inferred from J.T.’s
past history of violence, drug use, and criminal activity that he did not have the ability
to meet Holly’s physical and emotional needs now and in the future. See R.H.,
2019 WL 6767804, at *5; E.M., 494 S.W.3d at 226. The trial court was entitled to find
that these factors weighed in favor of terminating J.T.’s parental rights to Holly.
As to J.T.’s plans for Holly and the Department’s plans for Holly, the record
reflects that Holly is in an adoption-motivated foster home with Breanna and Emily
and that she has bonded with the foster family. Rodgers testified that Holly’s foster
home was “safe, stable, and loving.” J.T.’s plans for Holly included reliance on family
support that included his mother, but the record reflects that J.T.’s mother had
previously been excluded as a possible placement for Holly because of evidence of
prior, unrelated abuse. The trial court was entitled to find that this factor weighed in
favor of terminating J.T.’s parental rights to Holly.
37
Viewing the evidence in the light most favorable to the trial court’s best-
interest finding, we hold that a reasonable factfinder could have reasonably formed a
firm conviction or belief that termination of the parent–child relationship between
J.T. and Holly was in Holly’s best interest, and we therefore hold that the evidence is
legally sufficient to support the trial court’s best-interest finding. See Tex. Fam. Code
Ann. § 161.001(b)(2); J.P.B., 180 S.W.3d at 573. Based on our exacting review of the
entire record and giving due deference to the factfinder’s findings, we likewise
conclude that the evidence is factually sufficient to support the trial court’s best-
interest finding. See C.H., 89 S.W.3d at 18–19. Accordingly, we overrule J.T.’s third
issue.
IV. CONCLUSION
Having overruled Mother’s three issues as they relate to Breanna, Hank,
Hudson, and Holly, and having overruled J.T.’s three issues, we affirm the trial court’s
termination order regarding Mother’s parental rights as it relates to Breanna, Hank,
Hudson, and Holly, and J.T.’s parental rights as to Holly. Having sustained Mother’s
three issues as they relate to Kenneth and having sustained K.R.’s six issues—due to
the Department’s abandonment of its pleadings to terminate Mother’s and K.R.’s
respective parental rights to Kenneth—we reverse the trial court’s termination order
to the extent that it terminates Mother’s and K.R.’s respective parental rights to
Kenneth, and we remand the matter to the trial court for further proceedings
consistent with this opinion. See E.H., 2021 WL 799890, at *3 (remanding matter to
38
trial court for further proceedings after holding Department abandoned its pleadings
seeking termination of parent’s parental rights); T.M., 2020 WL 4773207, at *3 (same).
/s/ Dana Womack
Dana Womack
Justice
Delivered: September 22, 2022
39