in the Interest of J.A.R.R., J.N.R., and M.A.R., Children ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-22-00184-CV
IN THE INTEREST OF J.A.R.R., J.N.R., and M.A.R., Children
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2020PA01005
Honorable Kimberly Burley, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: September 21, 2022
AFFIRMED
Appellants M.R. (Father) and C.R. (Mother) appeal the trial court’s order terminating their
parental rights to their children J.A.R.R. (born 2010), J.N.R. (born 2015), and M.A.R. (born
2020). 1 Father argues the evidence is legally and factually insufficient to support one of the trial
court’s predicate findings under Texas Family Code section 161.001(b)(1) and its finding that
termination of his parental rights is in the best interest of the children. Mother argues the evidence
is legally and factually insufficient to support the finding that termination of her parental rights is
in the children’s best interest. We affirm the trial court’s order.
1
To protect the privacy of the minor children, we use initials to refer to the children and initials or pseudonyms to
refer to their biological parents and caregivers. TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
04-22-00184-CV
BACKGROUND
In May of 2020, the Texas Department of Family and Protective Services removed the
children from Father’s and Mother’s home because it had received reports of medical neglect.
When the children were removed, both J.N.R. and M.A.R. were underweight to the point that they
were immediately hospitalized for malnourishment (J.N.R.) and failure to thrive (M.A.R.).
J.A.R.R., in contrast, was severely overweight. The Department obtained temporary managing
conservatorship over the children, placed them in foster care, and filed a petition to terminate
Father’s and Mother’s parental rights. At the time of trial, J.A.R.R. and M.A.R. were placed with
Mother’s brother D.R. (Uncle) and his wife J.G.R. (Aunt). Due to her complex medical needs,
J.N.R. was placed in a specially licensed foster home.
The Department created a joint family service plan that required Father and Mother to,
inter alia, participate in individual counseling to address the issues that led to the children’s
removal, attend all the children’s medical appointments, familiarize themselves with the children’s
medical diagnoses, and “work with doctors and specialists to develop a full understanding of
necessary treatments, appointments, or medications for [the] children” as a condition of
reunification. The Department ultimately pursued termination of Father’s and Mother’s parental
rights.
On September 29, 2021, January 7, 2022, and January 28, 2022, the trial court held a bench
trial at which both Father and Mother appeared. The trial court heard testimony from seven
witnesses: (1) the Department’s caseworker, Alyssa Miller; (2) the parents’ therapist, Victoria
Caylor; (3) Myrah Guerra, a Department caseworker who briefly took over this case while Miller
was on leave; (4) Aunt; (5) the court-appointed special advocate; (6) Mother; and (7) Father. The
trial court also admitted the parents’ joint service plan into evidence. After hearing the evidence,
the trial court signed an order terminating both parents’ parental rights pursuant to section
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161.001(b)(1)(D) and (O) and its finding that termination was in the children’s best interest. Father
and Mother appealed.
ANALYSIS
Standard of Review
The involuntary termination of a natural parent’s rights implicates fundamental
constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and
powers normally existing between them, except for the child’s right to inherit from the parent.” In
re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation
marks omitted). “As a result, appellate courts must strictly scrutinize involuntary termination
proceedings in favor of the parent.” Id. The Department had the burden to prove, by clear and
convincing evidence, both that a statutory ground existed to terminate Father’s and Mother’s
parental rights and that termination was in the best interest of the children. TEX. FAM. CODE ANN.
§ 161.206; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). “‘Clear and convincing evidence’ means
the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.
§ 101.007; In re S.J.R.-Z., 537 S.W.3d at 683.
When reviewing the sufficiency of the evidence supporting a trial court’s order of
termination, we apply well-established standards of review. See In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002). In reviewing the legal sufficiency of the evidence to support the trial court’s findings,
we look “at all the evidence in the light most favorable to the finding to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that its finding was true.” In
re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). In reviewing the factual sufficiency of the evidence,
we consider disputed or conflicting evidence. Id. at 345. A factual sufficiency review requires us
to consider the entire record to determine whether the evidence that is contrary to a finding would
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prevent a reasonable factfinder from forming a firm belief or conviction that the finding is true.
See id. The factfinder is the sole judge of the weight and credibility of the evidence. Id. at 346.
Father’s Appeal
In his first issue on appeal, Father argues the evidence is legally and factually insufficient
to support the trial court’s finding that termination was warranted under Texas Family Code
section 161.001(b)(1)(D). He does not, however, challenge the trial court’s finding that termination
was warranted under Texas Family Code section 161.001(b)(1)(O).
Statutory Termination Grounds
Applicable Law
In general, assuming a best interest finding, only one predicate ground under section
161.001(b)(1) is necessary to support a judgment of termination. In re A.V., 113 S.W.3d at 362; In
re A.R.R., No. 04-18-00578-CV, 2018 WL 6517148, at *1 (Tex. App.—San Antonio Dec. 12,
2018, pet. denied) (mem. op.). To be successful on appeal, an appellant must challenge all the
predicate grounds upon which a trial court based its termination order. In re S.J.R.-Z., 537 S.W.3d
at 682. When an appellant does not challenge all the grounds that may support an order of
termination, we typically do not address the sufficiency of the evidence of any of the predicate
grounds for termination. See In re A.V., 113 S.W.3d at 361–62; In re S.J.R.-Z., 537 S.W.3d at 682.
Instead, we must accept the validity of the unchallenged grounds and affirm the termination order.
See In re A.V., 113 S.W.3d at 361–62; In re S.J.R.-Z., 537 S.W.3d at 682–83.
However, because termination under subsections 161.001(b)(1)(D) or (E) may have
implications for a parent’s parental rights to other children, appellate courts must address issues
challenging a trial court’s findings under those subsections. In re N.G., 577 S.W.3d 230, 236–37
(Tex. 2019) (per curiam). Therefore, we will consider Father’s sufficiency argument as to
subsection D even though he does not challenge termination under subsection O. See In re L.C.,
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No. 12-19-00137-CV, 2019 WL 4727826, at *2 (Tex. App.—Tyler Sept. 27, 2019, no pet.) (mem.
op.) (addressing parents’ sufficiency challenges to subsections D and E even though they did not
challenge all grounds upon which termination could be supported).
Subsection D allows a trial court to terminate parental rights if it finds by clear and
convincing evidence that the parent has “knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or emotional well-being of the
child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). Under subsection D, the trial court examines
“evidence related to the environment of the children to determine if the environment was the source
of endangerment to the children’s physical or emotional well-being.” In re J.T.G., 121 S.W.3d
117, 125 (Tex. App.—Fort Worth 2003, no pet.). “Environment” refers to the acceptability of the
child’s living conditions and a parent’s conduct in the home. In re S.R., 452 S.W.3d 351, 360 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied). “The specific danger to a child’s physical or
emotional well-being need not be established as an independent proposition, but it may be inferred
from parental misconduct.” In re E.M., 494 S.W.3d 209, 221 (Tex. App.—Waco 2015, pet.
denied).
“A child is endangered when the environment creates a potential for danger that the parent
is aware of but consciously disregards.” In re S.R., 452 S.W.3d at 360. A parent does not need to
know for certain that the child is in an endangering environment. In re R.S.-T., 522 S.W.3d 92,
109 (Tex. App.—San Antonio 2017, no pet.). Awareness of a potential for danger is sufficient. Id.Moreover, “[s]ubsection D permits termination based upon only a single act or omission.” Id. The
relevant period for review of environment supporting termination under subsection D is before the
Department removes the child. In re J.R., 171 S.W.3d 558, 569 (Tex. App.—Houston [14th Dist.]
2005, no pet.).
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Application
“Neglect of a child’s medical needs endangers the child.” In re T.M.T., No. 14-18-00442-
CV, 2018 WL 6053667, at *11 (Tex. App.—Houston [14th Dist.] Nov. 20, 2018, no pet.) (mem.
op.) (considering endangerment under both subsections D and E). Here, the evidence shows that
while the Department did not remove the children until May of 2020, it began working with the
family on January 28, 2020. However, even with the Department’s assistance during the first
months of 2020, five-year-old J.N.R. and four-month-old M.A.R. were so underweight at the time
of their removal that they were immediately hospitalized for malnourishment and failure to thrive,
respectively. At the time of removal, five-year-old J.N.R. weighed approximately twenty-four
pounds, which Father agreed at trial was “the weight of an average two-year-old.” While Father
argues on appeal that “[n]o medical evidence was presented at trial to substantiate” the concerns
that led to the children’s hospitalization, Father himself testified that he was concerned about
J.N.R.’s weight at the time of her removal. See In re R.S.-T., 522 S.W.3d at 109 (awareness of
potential for danger is sufficient to support subsection D finding). Additionally, neither Father nor
Mother argued or presented evidence at trial suggesting that the children’s hospitalization was not
necessary.
Miller testified that J.N.R. “is not able to eat solid foods” and must be fed through a G-
tube. Father testified that he reached out to J.N.R.’s doctor about her weight before the Department
became involved with the family, but he stated that he “can only give her the regimens that the
doctor was recommending to give her. I just didn’t give her no more regimen that what they were—
I was told to give her.” He agreed, however, that J.N.R. was underweight because her G-tube was
leaking and “she wasn’t getting all her nutrients.” He also agreed that he and Mother would notice
when the G-tube was leaking and that they “would change out the gauze” but that they did not take
J.N.R. to the doctor to have her G-tube replaced until after the Department became involved with
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the family. He also testified that he is not certified to change the G-tube himself. See In re T.M.T.,
2018 WL 6053667, at *11 (considering parent’s inability to care for child’s feeding tube in
endangerment analysis). Miller testified that when J.N.R. came into the Department’s care, her G-
tube “was ill-fitting, it was leaking, and [Father and Mother] did not notice that.” She stated that
Father and Mother “have argued with me, stating that the G-tube had no issues, because it didn’t
need to be replaced; so, therefore, it was fine. However, it did need to be reset and refitted and it
could have led to an infection.” See id.; see also In re R.S.-T., 522 S.W.3d at 109.
Father agreed at trial that J.N.R. receives all of her nutrients through the G-tube. However,
Miller testified that during this case, both Father and Mother had “reiterated that, whenever
[J.N.R.] was with them, that she would be able to eat food” and had asked “why [J.N.R.]’s not
eating solid foods.” Miller stated that Father and Mother asked these questions even though they
were “reminded several times that [J.N.R.] has failed a swallow study [and] does not have the
mechanisms to be able to swallow properly.” Miller testified that Father’s and Mother’s inability
or refusal to understand J.N.R.’s feeding limitations “is a safety concern, as [J.N.R.] does not know
how to swallow, and she could choke on her food.”
It is undisputed that J.N.R. has multiple complex medical needs in addition to her feeding
issues. Her diagnoses include septo optic dysplasia sequence, cerebral palsy, growth hormone
deficiencies, hypothyroidism, adrenal insufficiency, hypoglycemia, and “possible sickle cell
traits.” Guerra testified that J.N.R. typically has approximately six medical appointments a week
because “[s]he has a ton of medical needs.” It is undisputed, however, that J.N.R. missed multiple
required medical appointments prior to her removal. Father testified that J.N.R. missed these
appointments because the family lacked transportation. Miller testified, however, that “[J.N.R.]
was covered by Medicaid transportation, is covered to any and all appointments.” See In re T.M.T.,
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2018 WL 6053667, at *10–11 (considering parent’s inability to “keep up with [child’s] medical
appointments” in endangerment analysis).
Like J.N.R., M.A.R. was underweight at the time of his removal and was hospitalized
immediately upon coming into the Department’s care. During his hospitalization, he was
diagnosed with failure to thrive. At trial, Father agreed that M.A.R. was underweight at the time
of his removal. See In re R.S., No. 02-15-00137-CV, 2015 WL 5770530, at *4 (Tex. App.—Fort
Worth Oct. 1, 2015, no pet.) (mem. op.) (trial court may consider child’s “physical and
developmental condition” at time of removal in endangerment analysis).
With regard to J.A.R.R., the child was nine years old and weighed nearly 200 pounds when
he was removed from his parents’ care. Miller testified that due to his weight, he was being
monitored for prediabetes as early as January of 2020 and “was supposed to be seeing a specialist.
He was not being taken to those appointments.” See id.; see also In re T.M.T., 2018 WL 6053667,
at *10–11. The trial court heard evidence that J.A.R.R.’s weight problem began as early as four
years before his removal. Miller noted that when J.A.R.R. first came into the Department’s care,
“he would have no idea what vegetables were.” Father agreed that he was aware of J.A.R.R.’s
weight problem and testified that he tried to ameliorate the problem by trying “to keep him more
active.” The trial court heard evidence, however, that J.A.R.R.’s weight improved after he was
removed from Father’s custody.
Miller also testified that J.A.R.R. had told her that he was the primary caregiver for his
younger siblings, J.N.R. and M.A.R., before the children were removed. The trial court could have
properly considered this evidence of “parentification” of J.A.R.R. in determining whether Father
knowingly placed or knowingly allowed the children to remain in conditions that endangered their
physical or emotional well-being. See In re V.G., No. 04-08-00522-CV, 2009 WL 2767040, at *3,
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*8 (Tex. App.—San Antonio Aug. 31, 2009, no pet.) (mem. op.), superseded by statute on other
grounds.
The parents’ therapist, Caylor, testified that Father told her he knew the Department had
become involved with the family because J.N.R. had “a lot of special needs, a lot of medical
appointments were missed,” J.A.R.R. was “so overweight,” and M.A.R. “was failure to thrive.”
She also testified, however, that Father believed it was not his fault the Department was involved
with his family. Similarly, Miller testified that at the time of the children’s removal, both Father
and Mother were argumentative with her, did not believe the children’s removal was necessary,
and believed they were meeting the children’s needs. She testified that Father and Mother told her
the children were only hospitalized because the Department had mandated it and that doctors had
told them the children were fine “and there were no issues.” Miller concluded that Father and
Mother “just, overall, did not appear to understand the severity of the allegations and what led to
the removal.” She also testified that she had not seen any change in Father’s attitude on these points
since the children’s removal, noting, “He continues to be argumentative. He continues to refuse to
accept blame on himself. He continues to try to place blame on others. It is a conversation that we
have had multiple visits, multiple times, about him blaming CPS and blaming doctors, just overall
lack of accountability.”
Based on this evidence, a reasonable trier of fact could have found that the children’s pre-
removal environment was a source of endangerment to their physical or emotional well-being.
TEX. FAM. CODE § 161.001(b)(1)(D); In re T.M.T., 2018 WL 6053667, at *10–11; see also In re
J.O.A., 283 S.W.3d at 344. Additionally, the disputed or conflicting evidence is not so contrary to
that finding that it would prevent a reasonable factfinder from forming a firm belief or conviction
that the finding is true. See In re J.O.A., 283 S.W.3d at 345. Accordingly, the evidence is legally
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and factually sufficient to support the trial court’s finding under Texas Family Code section
161.001(b)(1)(D).
We overrule Father’s first issue.
Best Interest
Applicable Law
In his second issue, Father challenges the trial court’s finding that termination of his
parental rights is in the children’s best interest. There is a strong presumption that a child’s best
interest is served by maintaining the relationship between a child and the natural parent, and the
Department has the burden to rebut that presumption by clear and convincing evidence. See, e.g.,
In re R.S.-T., 522 S.W.3d at 97. To determine whether the Department satisfied this burden, the
Texas Legislature has provided several factors 2 for courts to consider regarding a parent’s
willingness and ability to provide a child with a safe environment, and the Texas Supreme Court
has used a similar list of factors 3 to determine a child’s best interest. TEX. FAM. CODE ANN.
§ 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
2
These factors include, inter alia: “(1) the child’s age and physical and mental vulnerabilities; (2) the frequency and
nature of out-of-home placements; (3) the magnitude, frequency, and circumstances of the harm to the child; (4)
whether the child has been the victim of repeated harm after the initial report and intervention by the department; (5)
whether the child is fearful of living in or returning to the child’s home; (6) the results of psychiatric, psychological,
or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the
child’s home; (7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have
access to the child’s home; (8) whether there is a history of substance abuse by the child’s family or others who have
access to the child’s home; (9) whether the perpetrator of the harm to the child is identified; (10) the willingness and
ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate
an appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time; (12) whether the child’s family demonstrates
adequate parenting skills [. . .]; and (13) whether an adequate social support system consisting of an extended family
and friends is available to the child.” TEX. FAM. CODE § 263.307(b).
3
Those factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the
future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the
individuals seeking custody; (5) the programs available to assist those individuals to promote the best interest of the
child; (6) the plans for the child by these individuals or the agency seeking custody; (7) the stability of the home or
proposed placement; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is
not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976).
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A best interest finding, however, does not require proof of any particular factors. See In re
G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at *5 (Tex. App.—San Antonio Apr. 29, 2015,
no pet.) (mem. op.). Neither the statutory factors nor the Holley factors are exhaustive, and
“[e]vidence of a single factor may be sufficient for a factfinder to form a reasonable belief or
conviction that termination is in the child’s best interest.” In re J.B.-F., No. 04-18-00181-CV, 2018
WL 3551208, at *3 (Tex. App.—San Antonio July 25, 2018, pet. denied) (mem. op.). Additionally,
evidence that proves a statutory ground for termination is probative on the issue of best interest.
In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). Finally, in determining whether termination of the
parent-child relationship is in the best interest of a child, a factfinder may judge a parent’s future
conduct by his past conduct. In re E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet.
denied).
Application
With regard to both J.N.R. and M.A.R., Miller testified that Father was not able to articulate
a full understanding of the children’s medical needs and how to meet those needs, despite multiple
conversations. See In re T.M.T., 2018 WL 6053667, at *13 (considering parent’s ability to meet
child’s medical needs in best interest analysis); see also TEX. FAM. CODE § 263.307(b)(12)
(factfinder may consider whether child’s family demonstrates adequate parenting skills, including
the parent’s provision of “minimally adequate health and nutritional care”). She also noted that
during this case, Father and Mother moved from San Antonio to Carrizo Springs, more than two
hours away from J.N.R.’s established medical providers. Caylor testified that Father and Mother
do not have a plan for how to meet J.N.R.’s medical needs in Carrizo Springs and that they did not
develop a support system to help them if the children are returned home. See TEX. FAM. CODE
§ 263.307(b)(13). While Father testified that he has family support in Carrizo Springs, Miller
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testified that support “is from people who may not have a full understanding of what caring for
[J.N.R.] on a day-to-day basis would entail.”
Miller testified that Father’s and Mother’s visits with the children were appropriate “[f]or
the most part,” but she explained that she had observed some visits where she had concerns about
the parents’ level of interaction with the children. For example, she testified that during visits with
M.A.R., Father and Mother “have left him in the stroller for upwards of 45 minutes, even though
he was awake and alert. . . . I have observed him running around visitation areas and the parents
are ignoring him or not interacting with him.” See id. § 263.307(b)(12)(B), (C) (factfinder may
consider whether parents provide child with “care, nurturance, and appropriate discipline
consistent with the child’s physical and psychological development” and “guidance and
supervision consistent with the child’s safety”). She also testified that during virtual visits with
J.N.R., 4 Father and Mother “put in very minimal effort. During the visits that I supervised, there
would be long stretches of silence. There would be instances where neither parent was actually
interacting with J.N.R.” See id. § 263.307(b)(12)(B). She noted that Father, in particular, was
looking off camera, “not even focused on his daughter” and that at times during the visits, “both
parents appeared to be at work, and therefore focused on their work activities, instead of interacting
with [J.N.R.].” See id. While Miller agreed that virtual visits with a child of J.N.R.’s age can be
difficult, she noted Father and Mother did not try to overcome those difficulties by, for example,
trying to sing to J.N.R. or read her a book.
The evidence is essentially undisputed that Father’s relationship with J.A.R.R. has
deteriorated throughout this case. Miller testified that Father made disparaging comments to
J.A.R.R. during visits and that “[J.A.R.R.] felt bullied by his father. . . . [he] just felt, because of
4
While Father and Mother visited J.A.R.R. and M.A.R. in person, their visits with J.N.R. were virtual due to the
COVID-19 pandemic and J.N.R.’s medical needs.
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these comments, because of the way his dad was acting, he didn’t want to have any further
contact.” The evidence further shows that J.A.R.R. “does not want to have a relationship with his
father at this point in his life,” and Aunt testified J.A.R.R. chose to stop visiting his parents after
“he got into an argument with [Father].” While J.A.R.R. initially voiced a desire to go home to his
parents, Miller testified:
He has expressed his desires pretty consistently over the last six to seven months,
specifically that he does not feel safe going home. He states that he does not believe
his parents have made behavioral changes. He is scared that, if he goes home, he
will once again resume the role of primary caregiver for his siblings.
See TEX. FAM. CODE § 263.307(b)(5) (factfinder may consider child’s fear of returning home). The
evidence shows that J.A.R.R. “has made it very clear that he does not wish to go home, that he is
wanting to stay and be adopted by the placement that he is at.” See Holley, 544 S.W.2d at 371–72.
Aunt confirmed that she knows J.A.R.R. wants her and Uncle to adopt him, and she stated that
they are willing to do so. See id. While Father testified that he had not “been told why” J.A.R.R.
did not want to visit with him, he did not dispute any of Miller’s or Aunt’s testimony on this point.
Additionally, the evidence shows that when J.A.R.R. came into care, he had behavioral and
hygiene issues and suffered from nightmares. Miller testified J.A.R.R. “would destroy the foster
family’s belongings, he would hit things and he would hide the things that he had broken or
destroyed.” Miller testified that those issues have resolved since J.A.R.R.’s removal from his
parents. She also testified that J.A.R.R. has lost a significant amount of weight, “is almost
completely off of junk food” and “is very active.”
Miller testified that she did not believe Father “has taken accountability for his actions or
to recognize the role that he has played” in the children’s removal and has “continued to deflect
blame onto others throughout this case.” See In re D.W., 445 S.W.3d 913, 927 (Tex. App.—Dallas
2014, pet. denied) (considering evidence that parent “blamed everybody else for the children’s
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removal from her care and did not take any responsibility for her actions”). She also stated that
Father appeared to put most of the parenting burden on Mother and “has made it very clear that he
has no intent on meeting the sanitary needs of his child, as he does not believe that that is what a
man should do, i.e., changing diapers, changing catheters, bathing.” While Father testified that he
had changed J.N.R.’s diapers in the past, he stated that his upbringing and his past work in a nursing
home “took [him] into the perspective of . . . . a girl’s going to change a girl, instead of a guy going
and changing a girl. I just don’t see that, as a guy, going and seeing somebody . . . completely
naked.” Based on these statements, Miller concluded, “I don’t believe that he would be a parent to
these children” if they returned home. As noted above, moreover, the trial court also heard
evidence that J.A.R.R. acted as his siblings’ primary caregiver before the children were removed.
Miller also testified that Father and Mother do not have an appropriate care plan prepared
for the event of the children’s return. See Holley, 544 S.W.2d at 371–72 (factfinder may consider
parent’s plans for the child). She testified that the parents’ plan is for one parent to work overnights
and the other to work days, which would mean that only one parent would be with the children at
a time. Because two of the three children are still in diapers, Miller did not believe this plan was
workable due to Father’s assertion that he will “not bathe, nor change his children, as that is not a
man’s job . . . [the parents’ plan] leaves me very concerned that, if [Father] were to have the
children during the day, that they would just not be cleaned properly.” While Father told Miller
that he “would transport the children to his mother’s home, in order to have his mother change the
diapers or bathe them, if necessary,” Miller did not believe this solution was appropriate “as that
would leave these children to sit in soiled diapers and filth for an unknown amount of time.” See
TEX. FAM. CODE § 263.307(b)(1) (factfinder may consider child’s age and physical
vulnerabilities); id. § 263.307(b)(12).
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The evidence shows that J.A.R.R. and M.A.R. are doing well in their placement with Uncle
and Aunt. While J.N.R. was not placed with Uncle and Aunt at the time of trial due to her medical
needs, Uncle and Aunt were working toward obtaining the certification that would allow them to
take custody of her. Aunt testified that she and her husband are willing to adopt all three children.
She also testified that while they are the children’s maternal relatives, they are making efforts to
foster the children’s relationship with their older half-brother—who is Father’s son from another
relationship—and with their paternal grandmother.
In his brief, Father notes that the Department initially planned to seek the appointment of
Father and Mother as possessory conservators rather than terminating their parental rights entirely.
Miller testified that this plan changed because by the time this case went to trial, she did not believe
possessory conservatorship for Father was in the children’s best interest. This is primarily due to
the nature of Father’s relationship with the boys’ current caregivers, Uncle and Aunt. Miller
testified that both parents blame Uncle and Aunt for the children’s removal, and she stated that she
believes Father “will put his relationship with the caregivers above all else.” See In re D.W., 445
S.W.3d at 927–28 (considering evidence that parent “put her own needs before the children’s
needs”). She noted that Father wanted J.A.R.R. to stay in a shelter instead of moving into Uncle
and Aunt’s home because “[Father] just didn’t want to have any interactions” with Uncle and Aunt.
See id. She explained that the Department initially hoped to have off-site visits and increase
collaboration between the caregivers and the parents, but that did not happen because Mother and
Father “declined. . . . They didn’t want to have any type of communication with the aunt and uncle.
They were very, very much against placement of the children with the aunt and uncle.” See id.
Miller also stated that Father makes no effort to reach out to Uncle and Aunt to check on the
children, and Aunt testified that she invited Father and Mother to J.A.R.R.’s birthday party but
“never got a response back.” While Father testified this lack of communication was because he
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did not have a phone number for Uncle and Aunt, he agreed that Mother had the phone number,
and Miller testified that she gave the phone number to Father. Miller testified that she did not
believe Father and Mother would “make a significant effort to continue to foster a relationship”
with the children’s current caregivers if they were granted possessory conservatorship.
Based on this evidence, a reasonable trier of fact could have found that termination of
Father’s parental rights was in the children’s best interest. See TEX. FAM. CODE § 263.307(b);
Holley, 544 S.W.2d at 371–72; see also In re J.O.A., 283 S.W.3d at 344. Additionally, the disputed
or conflicting evidence is not so contrary to that finding that it would prevent a reasonable
factfinder from forming a firm belief or conviction that the finding is true. See In re J.O.A., 283
S.W.3d at 345. Accordingly, the evidence is legally and factually sufficient to support the trial
court’s best interest finding. See id. at 344–45.
We overrule Father’s second issue.
Mother’s Appeal
In a single issue, Mother challenges the legal and factual sufficiency of the trial court’s
finding that termination of her parental rights is in the children’s best interest. Mother does not
challenge the trial court’s finding that she “knowingly placed or knowingly allowed the child[ren]
to remain in conditions or surroundings which endanger the physical or emotional well-being of
the child[ren].” TEX. FAM. CODE § 161.001(b)(1)(D). Accordingly, we may treat that finding as
probative on the issue of best interest. In re C.H., 89 S.W.3d at 28; see also In re E.D., 419 S.W.3d
at 620 (factfinder may judge parent’s future conduct by past conduct).
Much of the evidence described above in the discussion of Father’s best interest challenge
also applies to Mother. For example, the evidence shows that Mother, like Father, did not learn
how to properly care for J.N.R.’s G-tube or ensure that J.N.R. attended necessary medical
appointments. See In re T.M.T., 2018 WL 6053667, at *13; Holley, 544 S.W.2d at 371–72
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(factfinder may consider acts or omissions of the parent). Furthermore, Mother herself testified
that she did not seek immediate medical attention when J.N.R.’s G-tube started leaking, even
though she had been told that she needed to do so. See In re T.M.T., 2018 WL 6053667, at *13.
Mother also testified that she knew J.N.R. had gone without a medically necessary spinal surgery
for at least two years, a delay she attributed to communication difficulties with the doctor’s office
and the family’s medical insurance. She agreed that the “three [or] four” phone calls she had made
in trying to resolve these issues were “not sufficient enough” to meet J.N.R.’s needs. See id. The
trial court could have considered this evidence in determining whether Mother had the necessary
parenting skills to provide the children with “minimally adequate health and nutritional care.” TEX.
FAM. CODE § 263.307(b)(12)(A).
As noted above, Miller testified that she did not believe either parent understood the
severity of the children’s condition at the time of their removal, and she noted that both parents
had expressed to her that they thought the children were fine. Additionally, both Miller and Caylor
testified that Mother did not take responsibility for the conditions that led to the children’s removal.
See In re D.W., 445 S.W.3d at 927. And, as with Father, Miller testified that she had not seen any
change in Mother’s attitude on these points. See TEX. FAM. CODE § 263.307(b)(11) (factfinder may
consider parent’s willingness and ability to effect positive environmental and personal changes).
While Mother testified at trial that she now understands that learning about J.N.R.’s conditions
and care will “be a life-long commitment” and stated that she will be “more attentive” and more
aware of what to do “if symptoms arise or something out of the ordinary” in the future, the trial
court was not required to credit this testimony. See, e.g., In re H.D., No. 01-12-00007-CV, 2013
WL 1928799, at *15 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.).
Furthermore, the trial court was permitted to consider Mother’s past conduct in determining
whether to credit this testimony. See In re E.D., 419 S.W.3d at 620.
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The evidence also shows that J.A.R.R. told Miller that when Mother and Father had
custody of the children, Mother “would sleep all day” and “he wasn’t being taken care of, they
would only eat fast-food [and] he wasn’t going to school consistently.” See TEX. FAM. CODE
§ 263.307(b)(12). Miller stated that J.A.R.R. has told her “that he felt he wasn’t being cared for”
and he is afraid of going home for reasons that are related to the removal allegations. See id.
§ 263.307(b)(5).
Miller testified that she did not believe it was feasible to reunite the children with Mother
because she did not believe Mother “has made significant progress in addressing the reasons why
the Department became involved, initially. I don’t believe that she has a full understanding of
[J.N.R.’s] medical needs and how to properly meet those needs.” See In re T.M.T., 2018 WL
6053667, at *13. While Mother argues on appeal that “[t]he parents only need to be educated”
about their children’s needs, the record shows that the children were removed in May of 2020, this
case first went to trial in September of 2021, and the trial concluded in January of 2022. Miller
testified that she did not “believe that [Mother] made enough of an effort to learn about [the
children’s] medical needs or change her own lifestyle, in order to accommodate those needs”
during that time. See id.; see also TEX. FAM. CODE § 263.307(b)(11). Additionally, while Mother
argues that the Department “made no significant efforts to work with [her] and help her obtain the
knowledge necessary to care for the children regarding their medical needs,” Miller testified that
she: (1) frequently reminded Father and Mother of the children’s medical appointments; (2)
encouraged them “to reach out to the medical providers on their own time and gain a better
understanding”; (3) “strongly encouraged” them to participate in any trainings offered by the
medical providers and “to talk to the doctors, to talk to the staff”; and (3) sent them copies of
“packets that were printed out, that had all upcoming medical appointments.”
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Mother argues that termination is not in the children’s best interest under these
circumstances because “an option short of termination is workable.” She contends the trial court
should have granted managing conservatorship to Uncle and Aunt and possessory conservatorship
to Father and Mother while the Department “continu[es] to work with [Mother] for reunification
and to address specialized problems of the children.” We note, however, that “the prompt and
permanent placement of the child in a safe environment is presumed to be in the child’s best
interest.” TEX. FAM. CODE ANN. § 263.307(a). Furthermore, in reviewing a trial court’s
determination of a child’s best interest, we must be mindful that “[s]tability and permanence are
paramount in the upbringing of children.” In re J.D., 436 S.W.3d 105, 120 (Tex. App.—Houston
[14th Dist.] 2014, no pet.). Here, as was the case with Father, Miller testified that she did not
believe possessory conservatorship for Mother was in the children’s best interest because she did
not believe Mother:
would maintain a civil or cordial relationship enough with the caregiver, in order
to take advantage of any possessory rights that we were to grant her. I believe that
she would let her personal feelings towards that caregiver get in the way of a
relationship with her children, as she has already demonstrated since placement.
See In re E.D., 419 S.W.3d at 620. Mother herself agreed that even though J.A.R.R. was in a shelter
before he was placed with Uncle and Aunt, she was not in favor of moving J.A.R.R. and M.A.R.
into Uncle and Aunt’s home because she “wasn’t sure if, when something happened—something
happens regarding the children, if I was going to be told or not of whatever would happen.” See In
re D.W., 445 S.W.3d at 927–28. While Mother testified that she believed she and Father could
mend their relationship with Uncle and Aunt and work more cooperatively with them in the future,
we may not credit that testimony where, as here, it appears the trial court did not. See, e.g., In re
J.O.A., 283 S.W.3d at 346.
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Based on this evidence, a reasonable trier of fact could have found that termination of
Mother’s parental rights was in the children’s best interest. See TEX. FAM. CODE § 263.307(b);
Holley, 544 S.W.2d at 371–72; see also In re J.O.A., 283 S.W.3d at 344. Additionally, the disputed
or conflicting evidence is not so contrary to that finding that it would prevent a reasonable
factfinder from forming a firm belief or conviction that the finding is true. See In re J.O.A., 283
S.W.3d at 345. Accordingly, the evidence is legally and factually sufficient to support the trial
court’s finding under Texas Family Code section 161.001(b)(1)(D). See id. at 344–45.
We overrule Mother’s sole issue.
CONCLUSION
We affirm the trial court’s order of termination.
Beth Watkins, Justice
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