J. B. v. Texas Department of Family and Protective Services ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00325-CV
J. B., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 317,553-B, THE HONORABLE DALLAS SIMS, JUDGE PRESIDING
MEMORANDUM OPINION
J.B. (Mother) appeals from the trial court’s decree terminating her parental rights
to her daughter, “Jade,” finding that termination is in Jade’s best interest and that Mother had
knowingly placed Jade and allowed her to remain in conditions that endangered her well-being,
engaged in conduct and placed her with others who engaged in conduct that endangered her
well-being, constructively abandoned her, and failed to comply with a court order establishing
the actions necessary to regain custody. 1 See Tex. Fam. Code § 161.001(a)(1)(D), (E), (N), (O),
(2). We affirm the trial court’s order of termination.
1 For the child’s privacy, we refer to her by a pseudonym. See Tex. Fam. Code
§ 109.002(d); Tex. R. App. P. 9.8. Father’s rights were also terminated but he is not a party to
this appeal: he never responded after being served, and Mother told the Department “that he did
not want anything to do with the case and that we are not allowed to contact him.”
SUMMARY OF THE EVIDENCE
Jade was born May 21, 2020. The Department received a referral after Mother
tested positive in the hospital for cocaine and amphetamine and Jade showed signs of exposure
to illegal drugs. Mother was arrested in mid-January 2021 and remained incarcerated at the time
of the final hearing on June 8, 2021. 2 At the final hearing, the trial court heard testimony by
Mother and Department caseworker Jacqueline Sanders; Jade’s guardian ad litem provided her
recommendation; and the Department introduced into evidence its removal affidavit, Mother’s
psychological evaluation, a report by Mother’s counselor, and the Department’s final report.
The May 22, 2020 removal affidavit alleged that Mother had tested positive for
cocaine and amphetamine when Jade was born. The Department had not yet received test results
for Jade’s meconium, but she was “showing signs that could be caused from being exposed to
illegal drugs”: she was not breathing well, had low oxygen levels, was not feeding well, had
nasal congestion, and was exhibiting “nasal flaring which means she is trying harder to
breath[e].” Mother admitted using cocaine a week before Jade’s birth because she was stressed
and “fearful that family members would come to take her new baby.” She denied using
amphetamines, reported a history of drug use in another state within six months of the child’s
birth, and admitted that her five older children had been removed from her care in Michigan but
denied that their removal was related to drug use. In addition, Mother had been diagnosed with
schizophrenia and was not taking medication or undergoing therapy at the time.
Mother completed her psychological evaluation in September 2020, telling the
psychologist that she was not sure why she had been referred for an evaluation. The evaluation
2 The trial was held via video conference due to COVID-19 restrictions. See Supreme
Court of Texas’s Second Emergency Order Regarding the COVID-19 State of Disaster (Misc.
Docket No. 20-9043) and all subsequent Orders.
2
stated that Mother reported that she drank “a lot” when her older children were removed seven
years earlier after her “seven-year-old caught the house on fire”; that she used cocaine daily until
about six years ago; that she never used methamphetamine but that “they said there was meth in
my cocaine”; and that she did not believe that Jade had drugs in her system at birth. Mother
further reported that she was diagnosed with schizophrenia when she was nineteen, had received
social security ever since, and was not employed. She had taken psychotropic medication
starting two years earlier, including Seroquel for schizophrenia and Trazadone for depression,
but told the psychologist that she had not taken those medications for about a year and was not
taking any medication at the time of the evaluation. Mother described having auditory and visual
hallucinations such as “visions of the future,” shadows, and “sometimes good spirits and good
voices; used to be dark shadows and voices.” Mother also reported that she was arrested when
she was twenty-one after she stabbed her ex-boyfriend in the eye. The report concluded that
Mother has a severe “overall level of disability” and diagnosed her as having post-traumatic
stress disorder with dissociative symptoms; schizotypal personality disorder; severe cocaine use
disorder; persistent depressive disorder; and borderline intellectual functioning. Her prognosis is
“guarded to poor” because of “the range and severity of her current symptomatology.” The
report recommends “a psychiatric evaluation in order to determine the need for psychotropic
medication,” along with ongoing individual therapy, a protective parenting class, and close
monitoring if the child was returned to her care.
Notes from her therapist state that she had been regular in her attendance but did
not provide a “logical explanation about her on-going drug test results. [Mother] continued to
say that her drug tests numbers were going down. They were and are not. They are actually
going higher.” The therapist reported that Mother’s decision-making skills were “[n]ot good at
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all” and that she had a high level of depression and anxiety and concluded, “This therapist can
not make a positive recommendation for a monitored return due to her on-going drug use.”
Mother’s family service plan required her to abstain from criminal behavior,
abstain from illegal drug use, submit to random weekly drug testing, complete a drug and alcohol
assessment and follow all recommendations, participate in supervised visitation, complete a
psychological evaluation and follow all recommendations, and attend individual counseling. The
Department’s final March 16, 2021 report states that Mother had not complied with many of the
service plan’s requirements. Mother had been arrested in late October 2020 for possession of a
controlled substance and in mid-January 2021 for aggravated assault with a deadly weapon; she
remained incarcerated from January through the final hearing. Between May 2020 and her arrest
in January 2021, Mother took eighteen urine or oral swab drug tests, and all were positive for
amphetamine and methamphetamine—in those tests, she also tested positive for cocaine seven
times and positive for PCP seven times. Mother missed twenty-six tests, and two hair follicle
tests were positive for amphetamine, methamphetamine, and cocaine. In September 2020,
Mother completed a drug and alcohol assessment, which determined that she met the criteria for
outpatient treatment, but she was asked to retake the assessment and had not done so. Further,
Mother had “displayed erratic and aggressive behavior” to various service providers and to staff
at her apartment complex.
The Department’s report said that Jade “appears traumatized from the previous
visitations with her mother to the point [Jade] screams and becomes inconsolable when seeing
her mother on a virtual call.” As for her foster placement, Jade “is a very happy baby who has
bonded [with her] caregivers.” She is happy, well-adjusted, on a steady sleeping and eating
schedule, and “appears most happy when [her caregivers] are holding her.” A “hole in her heart
4
from the Amphetamines in her system at the time of birth has healed,” and her pediatrician said
she would not need surgery to fix it.
The Department also introduced into evidence the results of three drug tests taken
in December 2020. On December 11, Mother tested positive for amphetamine and
methamphetamine, both with levels “>10000” ng/ml and for PCP at a level of 1041 ng/ml. 3 On
December 17, she tested positive for amphetamine at 27418 ng/ml, methamphetamine at 50979
ng/ml, and PCP at 357 ng/ml. And on December 22, she tested positive for amphetamine and
methamphetamine at levels of 1640 ng/ml and 4949 ng/ml, respectively.
Sanders testified that she had been the family’s conservatorship worker since June
2020. She explained that the Department removed Jade from Mother’s care while they were still
in the hospital because Mother tested positive for methamphetamine and cocaine on a hospital
drug screen and Jade was “struggling from having illegal substances in her system.” Sanders
testified similarly to the allegations in the removal affidavit, saying that Jade struggled to breath,
“showing that she needed extra effort to breathe,” and had “extremely low” blood oxygen levels.
Sanders was asked whether Jade’s meconium tested positive for amphetamine,
methamphetamine, and cocaine, and Sanders answered, “Yes, sir.”
Sanders testified about Mother’s family service plan and explained that she went
over the plan with Mother, who “demonstrate[d] that she understood what she needed to do” and
told Sanders that “she’s been given prior services in other cases she’s had out of state and
understood the process.” Mother had “participated in some” of the required services: She did
the psychological evaluation, started counseling “around August” and was fairly consistent in her
3 The “MS confirm test level” for both amphetamine and methamphetamine is 500 ng/ml
and for PCP is 25 ng/ml.
5
attendance, and took “sporadic” drug tests, although those test results were positive. Sanders
said she tried to encourage Mother to work her services even though Mother “didn’t meet
expectations of things like confirming [visitations] or any other expectations and stipulations.”
Since Mother’s arrest in January, Sanders had not been able to contact her because Sanders was
not allowed to visit Mother in jail and, although Sanders tried to call, “Twice they were able to
put me through, but she denied answering the phone call.”
According to Sanders, Mother’s psychological evaluation raised “several
concerns, mainly mom not wanting to take accountability, and also the psychological stating that
she’s very paranoid, which also makes her resistant to aid or caring for her children.” Sanders
noted that the evaluation recommended that Mother undergo a psychiatric evaluation “to
determine the need for psychotropic medication,” and she believed that Mother’s paranoia
played a part in the issues she had with Sanders. Sanders testified that Mother’s visitation with
Jade “was sporadic due to either canceled or missed visits, positive testing on oral swabs or not
testing.” In addition, several visits were terminated early due to Mother’s conduct, “and at one
point we even had to call Temple Police Department because she was swinging the baby around
and refused to return the baby to the Department when the visit was terminated.”
Sanders testified that Mother’s drug use “was consistent in that it was constantly
positive. Levels did increase significantly as well as the variety of drugs used.” Mother’s last
three tests, taken in December 2020, were positive for methamphetamine and amphetamine, but
Mother “always denied her drug use and accused the Department and the testing center of faking
her tests.” Sanders stated that Mother had never been able to show that she could provide for
Jade’s needs, and she did not believe there was anything more the Department could have done
to help Mother meet her service plan requirements.
6
Jade had been placed in one foster home immediately after her release from the
hospital. In March 2021, she was moved to a second placement—a legal risk home, where she
was living at the time of trial. Sanders testified that although Jade initially “struggled to warm
up to” Sanders because she “associated [Sanders] a lot with mom due to visitation,” since being
moved into her current placement, whenever Sanders sees her, “she has warmed up to me. She
even wanted a hug from me, which was just surprising and just welcoming to see how her
personality has grown and how she’s been able to overcome any trauma.” Jade’s current foster
family wants to adopt her, and Sanders testified that “[t]here’s no doubt” that Jade is “in her
permanent home” and that termination and adoption by that family is in Jade’s best interest.
Mother testified that she was in jail on charges of aggravated assault with a deadly
weapon and possession of a controlled substance and said that “right now they don’t have any
evidence, so I’m basically just sitting in here.” Mother had a court date set for July 1, 2021, and
her attorney had said “either I’m getting time served or they’re going to drop my charge down so
that I could get a bond reduction.” Mother testified that she had in-person visitation with Jade in
December, that her last visit was on December 23, and that in that visit, she brought Jade a
Christmas gift. Mother had not tried to contact the Department while in police custody because
she did not have an address for anyone and said that she asked her mother to contact Sanders but
that her mother got no answer. Mother testified that she still had her apartment, that her fiancé
pays her rent, and that when she is released, she was willing to take drug tests and work services.
Mother said she and her fiancé had been together for six months and that he did not have a
criminal history and was not a “known drug dealer.” Mother testified that Jade’s father knows
that he is her father and that she is in Department custody but said, “He don’t care. He was the
reason why I started drugs, so I removed myself from him.”
7
Mother explained that she receives social security payments because she has been
diagnosed with schizophrenia. At the time of the final hearing, Mother was taking medication
for that condition, which she started after her January arrest. She had not taken medication
before then because, “I didn’t find no doctors yet. I didn’t never find a doctor.” Asked about her
December drug tests, Mother denied that she had been using methamphetamine, testifying, “I
had got myself clean. I had gotten into a program.” She also denied taking three tests in
December and insisted she had only tested once that month, saying, “I was gone for the whole
month of December because my daughter came up missing.”
The child’s guardian ad litem testified that she agreed with the Department that
the parents’ rights should be terminated. She said Jade’s first foster home had been good, “but
this home that she’s in now is an excellent foster home.” The guardian ad litem testified:
I don’t think I’ve ever seen her so happy as my last visit with her. She’s got
everything a little girl could ask for. She’s in a stable environment where there’s
not drug use, there’s not criminal activity going on. She’s safe and thriving. And
that couple, they do want—their desire is to adopt [Jade]. The mom has had a
year to rectify her circumstances and in that time there’s been continued drug use
and continued criminal activity, and that’s just not an appropriate environment for
a young child, or any child. So it’s—I feel like it’s in her best interest for her
rights to be terminated to free her up for adoption.
The trial court found by clear and convincing evidence that termination was in
Jade’s best interest and that Mother had placed Jade in conditions that endangered her well-
being, engaged in conduct that endangered her well-being, constructively abandoned her, and
failed to comply with a court order establishing the actions necessary to regain custody. See Tex.
Fam. Code § 161.001(a)(1)(D), (E), (N), (O), (2).
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STANDARD OF REVIEW
To terminate a parent’s rights to her child, the Department must prove by clear
and convincing evidence that the parent engaged in conduct that amounts to at least one statutory
ground for termination under section 161.001 and that termination is in the child’s best interest.
Id. § 161.001(b); In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam); In re S.M.R.,
434 S.W.3d 576, 580 (Tex. 2014). Clear and convincing evidence is “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 § 101.007; In re A.C., 560 S.W.3d 624,
630 (Tex. 2018). “The distinction between legal and factual sufficiency lies in the extent to
which disputed evidence contrary to a finding may be considered.” A.C., 560 S.W.3d at 630. In
reviewing legal sufficiency, we view the evidence in the light most favorable to the factfinder’s
determination, including undisputed contrary evidence, and assume the factfinder resolved
disputed facts in favor of its finding. Id. at 630-31. If the factfinder could have formed a firm
belief or conviction that the finding was true, the evidence is legally sufficient. Id. at 631. In
reviewing factual sufficiency, we weigh the disputed evidence contrary to the finding against all
the evidence favoring the finding and ask whether the disputed evidence is such that a reasonable
factfinder could not have resolved it in favor of the finding. Id. “Evidence is factually
insufficient if, in light of the entire record, the disputed evidence a reasonable factfinder could
not have credited in favor of a finding is so significant that the factfinder could not have formed
a firm belief or conviction that the finding was true.” Id. We defer to the decisions of the
factfinder, which, “having full opportunity to observe witness testimony first-hand, is the sole
arbiter when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498,
503 (Tex. 2014).
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DISCUSSION
Mother argues that the evidence is legally and factually insufficient to support the
trial court’s findings of statutory grounds or of best interest. We first consider the evidence
supporting the court’s finding under subsection (E). See N.G., 577 S.W.3d at 237. Mother
argues that “the evidence establishes a single pre-removal act (testing positive for cocaine),” a
single act that she asserts is insufficient to justify termination, and that “there is no evidence of
any postremoval course of conduct that endangered the Child.” Mother acknowledges that her
conduct at some of her visitations might have been “bizarre and unusual” but argues that it did
not endanger Jade. She also asserts that it would be “misguided and unfair” to determine that
Mother’s untreated mental illness endangered the child, contending that the Department knew
she needed help controlling her mental illness “and had the means to help her do so, but it chose
not to.”
Termination may be ordered under subsection (E) if the evidence establishes that
the parent “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
§ 161.001(b)(1)(E). “[T]he relevant inquiry is whether evidence exists that the endangerment of
the child’s physical and emotional well-being was the result of the parent’s conduct, including
acts and omissions or failures to act.” A.C. v. Texas Dep’t of Fam. & Protective Servs.,
577 S.W.3d 689, 699 (Tex. App.—Austin 2019, pet. denied) (quoting Asjes v. Texas Dep’t of
Protective & Regul. Servs., 142 S.W.3d 363, 370 (Tex. App.—El Paso 2004, no pet.)).
“Endangerment does not need to be established as an independent proposition but may be
inferred from parental misconduct,” meaning the Department does not have to prove that the
parent’s misconduct was directed at the child or that the child suffered an actual injury. Id.10
(citing Texas Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)); see In re E.N.C.,
384 S.W.3d 796, 803 (Tex. 2012). Termination under subsection (E) requires more than a single
act or omission, and the Department must show a voluntary, deliberate, and conscious course of
conduct by the parent, considering her actions both before and after the child was removed from
the home. E.E. v. Texas Dep’t of Fam. & Protective Servs., 598 S.W.3d 389, 405 (Tex. App.—
Austin 2020, no pet.); see D.J. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00323-CV,
2020 WL 7395924, at *4 (Tex. App.—Austin Dec. 17, 2020, pet. denied) (mem. op.) (in
considering endangerment under subsection (E), factfinder “may consider conduct that occurred
both before and after the Department removed the children from the parent’s custody”);
In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“courts
may consider conduct both before and after the Department removed the child from the home”).
“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.” In re J.O.A.,
283 S.W.3d 336, 336 (Tex. 2009). Thus, “a parent’s use of narcotics and its effect on his or her
ability to parent may qualify as an endangering course of conduct.” Id. at 345. This is because
illegal drug use exposes children to the possibility that their parents could be impaired or
imprisoned, which would endanger the children’s physical and emotional well-being. See A.C.,
577 S.W.3d at 699. And when the record contains evidence of a parent’s drug use “‘during the
pendency of a termination suit, when he knows he is at risk of losing his children,’ such evidence
has been found legally sufficient to support a finding of endangerment under subsection (E).”
In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet. denied) (quoting In re D.D.M.,
No. 01-18-01033-CV, 2019 WL 2939259, at *4 (Tex. App.—Houston [1st Dist.] July 9, 2019,
no pet.) (mem. op.)); see In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011,
11
pet. denied) (stability and permanence are of paramount importance in termination case, and
parent’s decision to use drugs during pendency of termination proceeding, when parent is at risk
of losing child, supports a finding that parent engaged in conduct that endangered child’s well-
being); Cervantes-Peterson v. Texas Dep’t of Fam. & Protective Servs., 221 S.W.3d 244, 253
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (in finding sufficient evidence of endangerment,
appellate court noted that mother’s drug use continued after child’s removal, “in the face of
periodic narcotics tests that placed her relationship with her child in jeopardy”).
In this case, Mother tested positive for illegal drugs when Jade was born,
admitting to using cocaine the week before; Jade showed signs of drug exposure; and Sanders
agreed when asked during her testimony whether Jade’s meconium test was positive for
amphetamine, methamphetamine, and cocaine. 4 Although she denied ongoing drug use,
asserting that the Department was faking her drug test results, Mother took and failed a total of
eighteen drug tests throughout the proceeding, testing positive for methamphetamine each time
and sometimes also testing positive for cocaine and PCP. She also missed testing more than
4 Mother notes that Jade’s meconium test results were not introduced into evidence and
asserts that Sanders’ affirmative answer about those test results, given in response to a “leading
question,” “is conclusory and no evidence at all.” However, the case she cites, In re L.C.L.,
addressed a caseworker’s assertion that “testing positive for drugs is endangering children” and
stated that the “conclusory statement was the only support for the allegation that Mother’s drug
use endangered her children.” 599 S.W.3d 79, 84 (Tex. App.—Houston [14th Dist.] 2020, pet.
denied). In this case, Sanders was asked a specific question—whether Jade’s meconium tested
positive for cocaine, methamphetamine, and amphetamine—and answered that it did. She did
not assert an opinion without explanation or support. See Arkoma Basin Expl. Co. v. FMF
Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008) (explaining that conclusory testimony is
that which “simply state[s] a conclusion without any explanation” or asks factfinder to “take my
word for it,” and citing Black’s Law Dictionary 308 (8th ed. 2004), as defining “conclusory” as
“[e]xpressing a factual inference without stating the underlying facts on which the inference is
based”). Certainly, it would be preferable for the Department to introduce such test results into
evidence, but Sanders gave a direct, affirmative answer to a question of fact. Further, those
testified-to test results are in line with the hospital staff’s observations that Jade showed signs of
drug exposure at birth.
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twenty times, and the trial court could have presumed that Mother would have tested positive in
those tests. See In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied) (“A
factfinder may reasonably infer from a parent’s refusal to take a drug test that the parent was
using drugs.”); In re C.R., 263 S.W.3d 368, 374 (Tex. App.—Dallas 2008, no pet.) (same).
“A mother’s drug use during pregnancy is conduct which endangers the physical
and emotional well-being of the child.” Cox v. Texas Dep’t of Protective & Regul. Servs.,
No. 03-99-00808-CV, 2000 WL 1471787, at *8 (Tex. App.—Austin Oct. 5, 2000, no pet.) (not
designated for publication). (citing In re W.A.B., 979 S.W.2d 804, 806 (Tex. App.—Houston
[14th Dist.] 1998, pet. denied)); see also In re K.A.C., 594 S.W.3d 364, 373 (Tex. App.—El Paso
2019, no pet.) (mother’s use of illegal drugs during pregnancy “may constitute conduct that
endangers the physical and emotional well-being of a child,” and evidence that parent continued
to use illegal drugs when she knew parental rights were in jeopardy “is conduct showing a
voluntary, deliberate, and conscious course of conduct, which by its nature, endangers a child’s
well-being”). And her conduct—ongoing drug use, criminal activity, and neglecting her mental
health—after Jade was removed can be considered when we examine evidence of an
endangering course of conduct. See D.J., 2020 WL 7395924, at *4; S.R., 452 S.W.3d at 360.
Thus, the fact that Jade was in the Department’s care while Mother continued to abuse
methamphetamine and other illegal drugs can be considered as evidence of endangerment.
Although Mother asserts that the Department should have helped her find
assistance to combat her mental-health concerns, she had been diagnosed with schizophrenia
when she was nineteen, about a decade before Jade was born. Mother knew she had been
diagnosed with depression and schizophrenia and had taken medication for about a year before
stopping her medications about eighteen months before trial. She said she had not yet found a
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doctor to prescribe her medication but did not indicate that she needed or sought help in finding a
doctor or that the Department had refused any requests for such help. Mother did not follow the
recommendation made in her psychological evaluation to obtain a psychiatric evaluation to
evaluate her need for psychotropic medications. And finally, Sanders said that Mother’s
paranoia, noted in her psychological evaluation and her therapist’s notes, interfered with her
ability to work with Sanders. The trial court could have considered Mother’s mental illness, the
severity of her symptoms, its effects on her behavior, and her failure to take steps to address it as
some evidence of endangerment. See S.R., 452 S.W.3d at 363-64 (“Mental illness alone is not
grounds for terminating the parent-child relationship,” but “[u]ntreated mental illness can expose
a child to endangerment, however, and is a factor the court may consider.”).
In addition, Mother’s behavior during her visitations with Jade was, as she
acknowledges in her brief, sometimes “bizarre and unusual”—at least once, a visit had to be
ended early because of her conduct, and another time, the police were called because Mother
swung the baby around and refused to return her at the conclusion of the visit. Mother was
arrested twice during the proceeding; had been incarcerated since January; and was not likely to
be released until at least July 2021. See In re R.A.G., 545 S.W.3d 645, 651 (Tex. App.—El Paso
2017, no pet.) (parent’s criminal conduct may support termination under subsection (E) because
it exposes child to possibility that parent may be imprisoned); In re E.R.W., 528 S.W.3d 251, 264
(Tex. App.—Houston [14th Dist.] 2017, no pet.) (same).
The evidence is legally and factually sufficient to show that Mother engaged in an
endangering course of conduct. We thus affirm the trial court’s finding under subsection (E).
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Best interest
We review a trial court’s finding of best interest in light of the factors set out in
Holley v. Adams: the child’s wishes, if appropriate given the child’s age; her emotional and
physical needs now and in the future; present and future emotional or physical danger posed to
the child; the parenting skills of those seeking custody; any programs available to assist those
seeking custody to promote the child’s best interest; plans for the child’s future; the stability of
the home or proposed placement; conduct by the parent that might show that the parent-child
relationship is inappropriate; and any excuses for the parent’s conduct. 544 S.W.2d 367, 371-72
(Tex. 1976). The Holley factors are not exhaustive, not all factors must be proved, and a lack of
evidence about some of the factors does not “preclude a factfinder from reasonably forming a
strong conviction or belief that termination is in the child’s best interest, particularly if the
evidence [was] undisputed that the parental relationship endangered the safety of the child.”
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
Jade was too young to express her wishes, but Sanders testified, and the
Department documents show, that the child has bonded well to her caregivers, who are providing
a safe, stable home and hope to adopt her. Sanders noted how much happier and at ease Jade
seems since moving to her current placement. Jade has never lived with Mother, and the
Department reported that Jade seemed traumatized by visitations, screaming and becoming
“inconsolable when seeing her mother on a virtual call.” Despite being born with illegal drugs in
her system, the child does not appear to have special needs other than the hole in her heart, which
the Department reported was related to in-utero drug exposure and which was healing on its own
without the need for surgical intervention. Mother has struggled with mental illness since she
was nineteen but had not found a doctor to help her with medication. Although Mother engaged
15
in therapy for several months until she was arrested, her therapist could not recommend a
monitored return due to Mother’s ongoing drug use and expressed concerns about Mother’s
insistence that her drug test levels were going down when they were in fact increasing. Mother
tested positive for methamphetamine, cocaine, and PCP repeatedly throughout the pendency of
the case, never passing a drug test, while denying ongoing drug use. She had been arrested about
three months before the hearing and remained incarcerated, expecting to be released in July.
Sanders did not believe there was anything more the Department could do for Mother, and she
and Jade’s guardian ad litem both testified that termination of Mother’s parental rights and
adoption by her foster family was in the child’s best interest. The evidence is both legally and
factually sufficient to support the trial court’s determination that termination of Mother’s
parental rights is in Jade’s best interest.
CONCLUSION
Having determined that the evidence is legally and factually sufficient to support
the trial court’s findings (1) of grounds under subsection (E) 5 and (2) that termination of
Mother’s rights is in the child’s best interest, we affirm the court’s decree of termination.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Smith
Affirmed
Filed: November 17, 2021
5 Because we have found sufficient evidence supporting the subsection (E) ground for
termination, we need not consider the findings of other grounds. See Spurck v. Texas Dep’t of
Fam. & Protective Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.).
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