in the Interest of M.M. and E.L., Children ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00185-CV
___________________________
IN THE INTEREST OF M.M. AND E.L., CHILDREN
On Appeal from the 367th District Court
Denton County, Texas
Trial Court No. 17-7206-367
Before Bassel, Womack, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
After a bench trial, the trial court terminated Mother’s1 parental rights to M.M.
(Ann) and E.L. (Beth). Mother asserts three issues: (1) the trial court erred by
considering Mother’s testimony about violating certain court orders because there
were no such orders; (2) the evidence is legally and factually insufficient to support the
five grounds of termination; and (3) the evidence is legally and factually insufficient to
support the trial court’s best-interest finding. We hold that (1) the trial court did not
err by considering Mother’s testimony, (2) the evidence is legally and factually
sufficient to support grounds under Subsection 161.001(b)(1)(E) of the Texas Family
Code and thus that addressing the remaining grounds is not necessary, and (3) the
evidence is legally and factually sufficient to support the trial court’s best-interest
finding under Subsection 161.001(b)(2). See Tex. Fam. Code Ann. § 161.001(b)(1)(E),
(b)(2). We affirm the trial court’s judgment.
I. PROCEDURAL BACKGROUND
In August 2017, the Texas Department of Family and Protective Services filed
a petition to terminate Mother’s and Father’s parental rights to Ann. In August 2018,
Maternal Aunt, the person with whom the Department had placed Ann, filed an
intervention petition seeking her appointment as Ann’s sole managing conservator.
1
We use aliases to identify the children, and we identify family members by
their relation to the children. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P.
9.8(b)(2).
2
This suit ended on January 9, 2019, with an agreed order involving Mother, Father,
Paternal Grandparents, and Maternal Aunt. Maternal Aunt became Ann’s nonparent
permanent managing conservator, while Mother and Father became her possessory
conservators.
While Ann’s suit was pending, in May 2018, the Department filed a separate
petition to terminate Mother’s and the alleged father’s parental rights to Beth.2 This
suit ended in May 2019 with the parental rights of Beth’s alleged father being
terminated and, in an agreed order, with Maternal Aunt being appointed as Beth’s
nonparent permanent managing conservator and Mother being appointed as Beth’s
possessory conservator.
Thereafter, in March 2020, the trial court consolidated Ann’s and Beth’s suits
under Ann’s cause number.
A few months later, in November 2020, Maternal Aunt filed a petition to
terminate Mother’s parental rights to both Ann and Beth. After a bench trial in
March 2021, the trial court terminated Mother’s parental rights to both Ann and Beth.
Specifically, the trial court found grounds under Subsections 161.001(b)(1)(C), (D),
(E), (F), and (P) and best interest under Subsection 161.002(b)(2). See Tex. Fam. Code
Ann. § 161.001(b)(1)(C), (D), (E), (F), (P), (b)(2).
2
The petition initially alleged two men as potentially being Beth’s father, one of
which was Ann’s father, but the Department later nonsuited him, leaving only one
alleged father for Beth. Beth’s alleged father is not pertinent to the remainder of the
opinion. All references to Father are to Ann’s father.
3
II. DISPUTED EVIDENCE
In Mother’s first issue, she argues that “the Court improperly considered that
[Mother] violated court orders, and yet no such injunctions against [Mother] were ever
ordered by the Court; accordingly, the evidence is legally insufficient to justify the
Court’s order terminating [Mother’s] parental rights and [the trial court’s reliance on
such evidence] amounts to a violation of Due Process under the Texas Constitution.”
At trial, Mother admitted violating the trial court’s orders by allowing Father and
Paternal Grandparents to have contact with the children. On appeal, Mother argues
that there was no order prohibiting her from engaging in such conduct and that the
trial court’s reliance on Mother’s mistaken trial testimony erroneously skewed the
factual analysis against her. Mother’s first appellate issue thus seems to contradict her
own testimony. To put Mother’s trial testimony and her appellate issue in context
requires some explanation.
A. THE JANUARY 2019 AGREED ORDER
According to the January 2019 agreed order involving Ann,
• Father was not to have any access or possession until at least 90 days after
he was released from prison and, even then, only if he produced two drug-
free tests 90 days apart; and
• Paternal Grandparents were to have access “on days and times as agreed by
[Maternal Aunt] and [Paternal Grandparents].” Additionally, Paternal
Grandparents were required to “provide notice to [Maternal Aunt] of intent
to exercise access at least seven (7) days in advance.”
4
Thus, although the trial court did not enjoin Mother from giving Father or Paternal
Grandparents access to Ann, the agreed order forbade Father from having access to
Ann while he was in prison, and it contemplated Paternal Grandparents having access
to Ann only with Maternal Aunt’s agreement and after having given Maternal Aunt
advance notice.
With that understanding of the court order, Mother’s testimony showed that
she allowed (1) Father to speak with Ann over the telephone while he was in prison
and (2) Paternal Grandparents to see Ann without Maternal Aunt’s knowledge.
Mother appeared to acknowledge knowing that Father was not supposed to have
access to Ann but denied knowing that Paternal Grandparents were not supposed to
have access to Ann without Maternal Aunt’s agreement until after Mother had already
facilitated visits between Paternal Grandparents and Ann—or as Mother stated it,
“until after the fact.” Technically, Mother was not violating the January 2019 agreed
order, but she was facilitating Father and Paternal Grandparents to violate it.
On recross examination, Mother’s attorney prompted Mother to provide
testimony minimizing the extent to which she allowed Father to have contact with
Ann. Specifically, Mother testified that she limited Father’s telephone contact with
Ann to two instances—once in December 2020 and once in June or August 2020.
Maternal Aunt, when testifying, also addressed Mother’s part in helping Father
and Paternal Grandparents violate the agreed order. Mother’s inability to follow court
5
orders concerned Maternal Aunt and caused Maternal Aunt to question whether
Mother had acted in the children’s best interest.
B. DISCUSSION
Mother’s argument that the trial court erred by considering admitted evidence
does not comport with any objection at trial. Neither Mother nor her counsel argued
at trial that her conduct did not violate the agreed order; just the opposite, the
substance of Mother’s testimony was that she participated in helping Father’s and
Paternal Grandparents’ violations of the agreed order, and our review of the agreed
order shows that Mother had correctly concluded that she had done just that. There
was no trial objection on this basis because there was no basis to raise this objection.
The complaint on appeal must comport with the objection at trial. See Banda v. Garcia,
955 S.W.2d 270, 272 (Tex. 1997); In re C.P.V.Y., 315 S.W.3d 260, 269 (Tex. App.—
Beaumont 2010, no pet.); In re W.J.H., 111 S.W.3d 707, 713–14 (Tex. App.—Fort
Worth 2003, pet. denied), superseded by statute on other grounds as recognized by In re D.A.R.,
201 S.W.3d 229, 230–31 (Tex. App.—Fort Worth 2006, no pet.).
The trial court did not err by considering the disputed testimony. We overrule
Mother’s first issue.3
3
We do not understand Mother’s complaint to attack the admission of her
testimony about helping Father’s and Paternal Grandparents’ violations of the court
orders, but to the extent that is her argument, the error, if any, was harmless because
the same testimony came in on other occasions without any objection. Erroneously
admitted evidence is generally harmless when the same or similar evidence was
6
III. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
A. GENERALLY
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except the child’s right to inherit.
Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
Consequently, “[w]hen the State seeks to sever permanently the relationship between
a parent and a child, it must first observe fundamentally fair procedures.” In re E.R.,
385 S.W.3d 552, 554 (Tex. 2012) (citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102
S. Ct. 1388, 1391–92 (1982)).
Termination decisions must be supported by clear and convincing evidence.
See Tex. Fam. Code Ann. §§ 161.001(b), 161.206(a); In re E.N.C., 384 S.W.3d 796, 802
(Tex. 2012). Due process demands this heightened standard because “[a] parental
rights termination proceeding encumbers a value ‘far more precious than any property
right.’” E.R., 385 S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at
1397). Evidence is clear and convincing if it “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; E.N.C., 384 S.W.3d at 802.
admitted elsewhere. See Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873
(Tex. 2008); In re C.C., 476 S.W.3d 632, 637 (Tex. App.—Amarillo 2015, no pet.).
7
For a trial court to terminate a parent–child relationship, the party seeking
termination must establish, by clear and convincing evidence, that (1) the parent’s
actions satisfy just one of the many predicate grounds that are listed in Subsection
161.001(b)(1) of the Texas Family Code and (2) termination is in the child’s best
interest. Tex. Fam. Code Ann. § 161.001(b)(1), (2); E.N.C., 384 S.W.3d at 803; In re
J.L., 163 S.W.3d 79, 84 (Tex. 2005).
Regarding the Subsection 161.001(b)(1) grounds, the supreme court articulated
an important qualification: if the trial court finds grounds under Subsection (b)(1)(D)
or (E)—both of which involve endangering a child’s physical or emotional well-
being—an appellate court must review either the (D) or (E) grounds on appeal (or
both if neither withstands appellate review) because they have potential collateral
consequences for other children the parent may have. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(M) (providing that a prior termination under (D) or (E) is a ground
for terminating parental rights to a different child); In re N.G., 577 S.W.3d 230, 237
(Tex. 2019) (“[I]f a court of appeals affirms the termination on either [(D) or (E)]
grounds, it must provide the details of its analysis.”); In re D.D.E., No. 11-21-00069-
CV, 2021 WL 4598596, at *2–3 (Tex. App.—Eastland Oct. 7, 2021, no pet. h.) (mem.
op.); In re A.B.-G., No. 02-19-00066-CV, 2019 WL 3755770, at *7 n.5 (Tex. App.—
Fort Worth Aug. 8, 2019, pet. denied) (mem. op.); A.C. v. Tex. Dep’t of Fam. &
Protective Servs., 577 S.W.3d 689, 698–99 & n.2 (Tex. App.—Austin 2019, pet. denied).
Termination may not be based solely on the child’s best interest as determined by the
8
factfinder under Section 161.001(b)(2). Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—Fort Worth
2012, no pet.).
B. LEGAL SUFFICIENCY
In evaluating the evidence for legal sufficiency in parental-rights-termination
cases, we determine whether the evidence is such that a factfinder could reasonably
form a firm belief or conviction that the Department proved both the particular
ground for termination and that termination was in the child’s best interest. In re
J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); see In re J.P.B., 180 S.W.3d 570, 573 (Tex.
2005). We review all the evidence in the light most favorable to the finding and
judgment, and we resolve any disputed facts in favor of the finding if a reasonable
factfinder could have done so. J.F.C., 96 S.W.3d at 266. We also must disregard all
evidence contrary to the finding that a reasonable factfinder could have disbelieved, in
addition to considering undisputed evidence even if it is contrary to the finding. Id.
That is, we consider evidence favorable to termination if a reasonable factfinder
could, and we disregard contrary evidence unless a reasonable factfinder could not.
See id. In doing our job, we cannot weigh witness-credibility issues that depend on the
witness’s appearance and demeanor; that is the factfinder’s province. J.P.B.,
180 S.W.3d at 573. And even when credibility issues appear in the appellate record,
we defer to the factfinder’s determinations as long as they are not unreasonable. Id.
9
C. FACTUAL SUFFICIENCY
We must perform “an exacting review of the entire record” in determining
whether the evidence is factually sufficient to support terminating a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). In a factual-sufficiency
review, we give due deference to the factfinder’s findings and do not supplant the
judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We
determine whether, on the entire record, a factfinder could reasonably form a firm
belief or conviction that the parent violated an alleged ground and that termination
was in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); see In re C.H.,
89 S.W.3d 17, 25 (Tex. 2002). If, in light of the entire record, the disputed evidence
that a reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction in the truth of its finding, then the evidence is factually insufficient.
H.R.M., 209 S.W.3d at 108.
D. GROUNDS UNDER SUBSECTION (E)
The trial court found grounds under Subsections 161.001(b)(1)(C), (D), (E),
(F), and (P). See Tex. Fam. Code Ann. § 161.001(b)(1)(C), (D), (E), (F), (P). We
address grounds under Subsection (E) first.
1. Law
“Endanger” means to expose to loss or injury, or to jeopardize a child’s
emotional or physical health. Boyd, 727 S.W.2d at 533; In re J.T.G., 121 S.W.3d 117,
10
125 (Tex. App.—Fort Worth 2003, no pet.). The parent’s conduct does not need to
be directed at the child nor must the child suffer actual injury in order to be
endangered within the statute’s meaning. J.T.G., 121 S.W.3d at 125. Moreover, a
child can be endangered simply by violence that is directed toward another child in
the home. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
Under Subsection (E), we ask whether evidence exists that the parent’s
conduct—including acts, omissions, or failures to act—endangered the child’s
physical or emotional well-being. J.T.G., 121 S.W.3d at 125. Additionally, Subsection
(E) requires not just a single act or omission but rather a voluntary, deliberate, and
conscious course of conduct. Id.
2. Discussion
a. Evidence
Mother admitted being placed on probation in April 2016 for driving while
intoxicated and being ordered to submit to drug testing. She pleaded true to failing a
drug test in March 2017.
Two months later, in May 2017, Ann tested positive for cocaine, and Mother
acknowledged telling a Department investigator that she had used methamphetamine
and cocaine with Father. In July 2017, Mother tested positive for methamphetamine
and was ordered to participate in and went through an outpatient substance-abuse
drug treatment program. But in August 2017, Mother again tested positive for
methamphetamine and was again ordered to participate in a drug treatment program.
11
Although Mother completed the course, she continued to abuse drugs. That same
month, the Department filed its first petition to terminate Mother’s parental rights to
Ann.
Ann’s case went on for 18 months, during which time neither Ann nor Beth
was returned to Mother. Mother stated that Ann was 14 months old when she was
placed with Maternal Aunt and that, even before Ann was 14 months old, Maternal
Aunt had cared for Ann off and on as part of Mother’s family-based services plan. In
contrast, Maternal Aunt stated that Ann had been in her care since before May 20174
and that Beth had been in her care since birth because Maternal Aunt had picked up
Beth at the hospital. After Beth’s birth in 2018, Mother continued to abuse drugs. As
noted earlier, Ann’s case ended with the January 2019 agreed order in which Mother
was given possessory conservatorship and Beth’s case ended in May 2019 with the
same result.
Thereafter, in September 2020, Mother tested positive for methamphetamine.
And in November 2020, Maternal Aunt filed a petition to terminate Mother’s parental
rights to both Ann and Beth.
4
The Department filed its original termination petition in August 2017, when
Ann was approximately 14 months old. The affidavit supporting the Department’s
original August 2017 termination petition provided that Ann tested positive for
cocaine in May 2017 and thereafter resided with Maternal Aunt. Thus, Maternal Aunt
had cared for Ann since Ann was about 10 months old.
12
At trial, Mother admitted being a drug addict. On the other hand, Mother had
evidence showing that she had tested clean on seven of the eight tests administered
between January 2019 and March 2021, when trial began.5
And financially, Mother estimated that since November 2017, she had paid
close to $3,000 in child support. And since January 2019, she estimated that she had
paid over $8,000 on visit supervisors and close to $1,500 on drug tests.
b. Application
The Department filed its original petition to terminate in August 2017 after
Mother had tested positive for methamphetamine. In September 2020, nearly three
years later, Mother again tested positive for methamphetamine. Since 2017, Mother
showed a pattern of relapsing and acknowledged being a drug addict.
Narcotics and their effect on a person’s ability to parent may qualify as an
endangering course of conduct. J.O.A., 283 S.W.3d at 345. Further, evidence that a
parent continued to use illegal drugs even though the parent knew that his or her
parental rights were in jeopardy is conduct showing a voluntary, deliberate, and
conscious course of conduct that, by its nature, endangers a child’s well-being. See In
re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied);
Cervantes-Peterson v. Tex. Dep’t of Fam. & Protective Servs., 221 S.W.3d 244, 253-54 (Tex.
5
Mother tested clean on May 6 and August 10, 2019; January 6, May 7, June 19,
and November 23, 2020; and February 23, 2021. The only test that she tested positive
on was September 14, 2020.
13
App.—Houston [1st Dist.] 2006, no pet.) (en banc). Because using narcotics exposes
the child to the possibility that the parent may be impaired or imprisoned, their use
may support termination under Subsection (E). Walker v. Tex. Dep’t of Fam. &
Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied).
Although a parent’s imprisonment is insufficient, standing alone, to constitute
“engaging in conduct which endangers the emotional or physical well-being of the
child,” imprisonment is nevertheless a factor to consider on the endangerment issue.
See Boyd, 727 S.W.2d at 533–34; In re M.D.S., 1 S.W.3d 190, 199 (Tex. App.—Amarillo
1999, no pet.). This is so because evidence showing a course of conduct that
routinely subjects a child to the probability of an absent parent endangers both the
physical and emotional well-being of a child. In re S.D., 980 S.W.2d 758, 763 (Tex.
App.—San Antonio 1998, pet. denied). Once a parent’s drug usage becomes
entangled in criminal proceedings, the parent risks being absent if (1) the parent
continues to violate probationary conditions, (2) the parent has committed a new
offense growing out of a continued use of illegal drugs, or (3) the parent is once again
committed to a rehabilitation program. Id.; see In re R.S., No. 12-21-00029-CV,
2021 WL 2816403, at *4 (Tex. App.—Tyler June 30, 2021, no pet.) (mem. op.).
Our focus is not on whether Mother had made progress, because the evidence
suggests that after the January and May 2019 agreed orders, Mother had made
progress. Rather, our focus is on whether she continued to use illegal drugs, and the
14
evidence was that she had. During the initial suits, Mother used illegal drugs even
though she knew that her parental rights were in jeopardy, and after the January and
May 2019 agreed orders, she used again. Throughout her children’s lives, she showed
a voluntary, deliberate, and conscious course of conduct that, by its nature,
endangered her children’s well-being. See M.E.-M.N., 342 S.W.3d at 263. Narcotics
can impair or incapacitate the user’s ability to parent. See J.O.A., 283 S.W.3d at 345.
Methamphetamine addiction can work havoc not only on the addict but on the
addict’s family, and small children, such as Ann and Beth, are particularly vulnerable.
The danger here is more than “metaphysical,” and more is at stake than a less-than-
ideal family environment. See In re D.R., No. 06-21-00019-CV, 2021 WL 3411562, at
*3 (Tex. App.—Texarkana Aug. 5, 2021, no pet.) (“Although ‘endanger’ means more
than a threat of metaphysical injury or the possible ill effects of a less-than-ideal
family environment, it is not necessary that the conduct be directed at the child or that
the child actually suffers injury.”) (quoting In re M.C., 917 S.W.2d 268, 269 (Tex.
1996)). Since Ann’s removal in 2017 and Beth’s removal in 2018, Mother’s ability to
directly threaten her children has been limited because her visits were supervised, but
her ability to indirectly harm her children has not been limited. See J.O.A., 283 S.W.3d
at 345 (“[E]ndangering conduct is not limited to actions directed towards the child.”).
But see In re L.C.L., 599 S.W.3d 79, 85 (Tex. App.—Houston [14th Dist.] 2020) (en
banc) (“Somewhere along the way, our court conflated drug use with child
15
endangerment such that mere drug use alone became conclusive evidence that a child
was endangered.”), pet. denied, 626 S.W.3d 909 (Tex. 2021).
In addition to Mother’s drug issue, the testimony also showed issues of family
violence. Maternal Aunt’s counsel described Father as a seven-time convicted felon
who committed assaults against Mother, and Mother neither denied this assertion nor
sought to clarify this description. Mother admitted that Father was incarcerated for
assault family violence. Although Father was ordered not to have contact with Ann,
Mother allowed Father to have telephone contact with her. Mother also admitted
having sporadic contact with Father and putting money on Father’s books. Mother
herself had been arrested for assault family violence, was out on bond, and was
awaiting trial. Exposing a child to family violence endangers a child’s physical or
emotional well-being and is sufficient to support an endangerment finding. See In re
D.M., 452 S.W.3d 462, 470 (Tex. App.–San Antonio 2014, no pet.); In re C.J.O.,
325 S.W.3d 261, 265 (Tex. App.–Eastland 2010, pet. denied); J.T.G., 121 S.W.3d
at 125–26.
We hold that the evidence is legally and factually sufficient to show that Mother
engaged in a course of conduct that endangered her children’s physical or emotional
well-being. See J.F.C., 96 S.W.3d at 265–66 (stating that to be legally sufficient, the
evidence must be such that a factfinder could reasonably form a firm belief or
conviction about the truth of the Department’s allegations); C.H., 89 S.W.3d at 25
(stating that to be factually sufficient, on the entire record, a factfinder must be able to
16
reasonably form a firm belief or conviction that the parent violated an alleged
ground).
Because only one ground is necessary, and because we have held that the
evidence is legally and factually sufficient under Subsection (E) grounds—one of the
grounds that must be addressed when there are multiple grounds—we do not need to
address the other four grounds. See Tex. R. App. P. 47.1; N.G., 577 S.W.3d at 237;
D.D.E., 2021 WL 4598596, at *2–3; A.B.-G., 2019 WL 3755770, at *7 n.5; A.C., 577
S.W.3d at 698–99 & n.2.
E. Best Interest
1. Law
There is a strong presumption 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).
We review the entire record to determine the child’s best interest. In re E.C.R.,
402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative both of
grounds under Section 161.001(b)(1) and of best interest under Section 161.001(b)(2).
Id. at 249; C.H., 89 S.W.3d at 28. Nonexclusive factors that the factfinder in a
termination case may also use in determining the child’s best interest include:
• 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;
17
• 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
(stating that in reviewing a best-interest finding, “we consider, among other evidence,
the Holley factors”); 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 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 J.B., No. 02-18-00034-CV, 2018 WL 3289612, at *4 (Tex. App.—
Fort Worth July 5, 2018, no pet.) (mem. op.).
2. Discussion
a. Children’s desires
At the time of trial in March 2021, Ann was four years old but would soon be
five, and Beth was two years old but would soon be three. Both lacked sufficient
18
maturity to express an opinion regarding a parental preference, and neither testified at
trial. See M.S., No. 02-21-00007-CV, 2021 WL 2654143, at *18 (Tex. App. —Fort
Worth June 28, 2021, pet. denied); In re M.H., 319 S.W.3d 137, 150 (Tex. App.—
Waco 2010, no pet.); see also Tex. Fam. Code. Ann. § 153.134(a)(6) (providing that a
child must be at least 12 years old before the child’s preference, if any, regarding the
person to have the exclusive right to designate the child’s primary residence becomes
a factor), § 156.101(a)(2) (same). This factor is neutral.
b. Children’s emotional and physical needs now and in the future
Ann’s and Beth’s emotional and physical needs now and in the future will be
the same regardless of who raises them, but Maternal Aunt is in a better position to
meet those needs now and in the future. Unlike Mother, Maternal Aunt does not face
the possibility of relapsing, getting caught possessing illegal drugs, being incarcerated
for assault, or reuniting with a physically abusive boyfriend. This factor weighs in
favor of termination.
c. Emotional and physical danger to the children now and in the future
A home with Mother would likely include drugs and family violence. This
factor favors termination.
d. Parental abilities of the individuals seeking custody
Maternal Aunt was already parenting Ann and Beth. Photographs of Mother
with Ann and Beth show happy children, but a world of difference separates caring
for children for a few hours and parenting children day in and day out. Because
19
Mother did not have a monitored return, how well she could parent Ann and Beth on
a daily basis was unknown. This factor favors termination.
e. Programs available to assist these individuals
to promote the children’s best interest
The parties did not develop evidence addressing any programs that might be
available to help Mother or Maternal Aunt to raise Ann and Beth. Mother was
actively participating in programs to help her deal with her addiction. Overall,
though, this factor is neutral.
f. Plans for the children by these individuals or
by the agency seeking custody
Maternal Aunt had already been raising Beth since Beth’s birth and had been
raising Ann since Ann was about 10 months old. In contrast, Mother was living with
her father and mother, and the Department had not approved a home study of
Mother’s father. Regardless, if Mother took possession of Ann and Beth, the record
suggests that Mother would have to make different living arrangements, which would
add another element of potential uncertainty.6 This factor weighs in favor of
termination.
Although Maternal Aunt and the children had moved while the cases were
6
pending, Maternal Aunt showed the ability to do so without jeopardizing the
children’s stability.
20
g. Stability of the home or proposed placement
“[C]hildren need permanency and stability.” In re G.V., III, 543 S.W.3d 342,
350 (Tex. App.—Fort Worth 2017, pet. denied). A child’s need for permanence
through the establishment of a stable, permanent home is a paramount consideration
in the best-interest determination. In re E.R.W., 528 S.W.3d 251, 267 (Tex. App.—
Houston [14th Dist.] 2017, no pet.). Mother has had more than three years to get
clean and stay clean, and yet she relapsed in September 2020. This factor supports the
trial court’s finding that termination was in Ann’s and Beth’s best interest.
h. Parent’s acts or omissions that may indicate that the existing
parent–child relationship is not a proper one
and
i. Parent’s excuse, if any, for the acts or omissions
We address these last two factors together. Focusing on Mother at trial, her
testimony was relatively straightforward. Despite a court order, she let the children
talk to Father on the phone. And despite a court order, she went out of her way to let
Paternal Grandparents see the children without Maternal Aunt’s knowledge. Creating
safety boundaries for the children is pointless if Mother affirmatively ignores them.
Regarding Mother’s drug addiction, Mother’s testimony was relatively
straightforward there too. She was a drug addict, she was making efforts to address it,
and she had made some progress. Because Mother relapsed in September 2020,
though, her addiction remained an ongoing concern.
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This factor weighs in favor of termination.
j. Analysis and holding
Although Mother had made progress, she still had not arrived at the point that
placing Ann and Beth with her would result in a reasonable expectation of
permanence, stability, or safety. Drug use remained a problem. Mother maintained
contact with Father, who used drugs with Mother and who was incarcerated for
assault family violence. And Mother had her own legal difficulties with a pending
criminal charge of assault family violence. Ann had been in legal limbo for the
majority of her short life, and Beth had been in legal limbo all of her life. Termination
was Ann’s and Beth’s path to permanence, stability, and safety. We hold that the
evidence is legally and factually sufficient to show that terminating Mother’s parental
rights was in the best interest of Ann and Beth. See J.F.C., 96 S.W.3d at 265–66
(stating that to be legally sufficient, the evidence must be such that a factfinder could
reasonably form a firm belief or conviction about the truth of the Department’s
allegations); C.H., 89 S.W.3d at 25 (stating that to be factually sufficient, on the entire
record, a factfinder must be able to reasonably form a firm belief or conviction that
supports the finding).
We overrule Mother’s second and third issues.
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IV. CONCLUSION
Having overruled Mother’s issues, we affirm the trial court’s judgment.
/s/ Brian Walker
Brian Walker
Justice
Delivered: November 10, 2021
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