in the Interest of J.B., a Child ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00239-CV
___________________________
IN THE INTEREST OF J.B., A CHILD
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-679135-20
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is an ultra-accelerated appeal 1 in which Appellant B.B. (Mother) appeals
the termination of her parental rights to her adopted daughter J.B. (Jana),2 who was
removed at age three from Mother’s care after numerous bruises were noted on Jana’s
body and Jana attributed the injuries to Mother. In five issues, Mother argues that the
evidence is legally and factually insufficient to support the trial court’s findings on
endangering environment, failure to complete the service plan, endangering conduct,
and best interest and that she received ineffective assistance of counsel because trial
counsel failed to object to unfairly prejudicial evidence. Because legally and factually
sufficient evidence supports the endangering-environment, endangering-conduct,3 and
best-interest findings and because the record on direct appeal provides no explanation
for trial counsel’s actions, and thus Mother is not able to overcome the strong
1
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of an
appeal from a judgment terminating parental rights, so far as reasonably possible,
within 180 days after the notice of appeal is filed).
2
We use an alias to refer to the child. See Tex. Fam. Code Ann. § 109.002(d);
Tex. R. App. P. 9.8(b)(2).
3
We need not address the failure-to-complete-the-service-plan finding because
only one predicate ground plus best interest is necessary to support a termination
order. See Tex. R. App. P. 47.1; In re N.G., 577 S.W.3d 230, 232–33, 237 (Tex. 2019)
(explaining that only one predicate ground is necessary to support termination of
parental rights when there is also a best-interest finding but requiring appellate court
to detail analysis for appeal challenging endangering-environment or endangering-
conduct findings).
2
presumption of reasonable assistance, we affirm the trial court’s judgment terminating
Mother’s parental rights to Jana.
II. Background
A. Overview 4
During the period from July 13, 2019, to August 28, 2019, the Texas
Department of Family and Protective Services received nineteen referrals regarding
life-endangering acts that Mother had allegedly perpetrated on Jana. Ultimately, the
injuries that Jana presented with on August 28, 2019, led to her removal from
Mother’s care. Our summary of the record begins with injuries that occurred prior to
that time, showing that Mother’s conduct, and any environment where she was
present alone with Jana, was endangering to Jana. The summary also includes
testimony that is relevant to the best-interest factors.
B. Signs of Abuse Prior to the August 2019 Removal
1. The Prior Babysitter’s Testimony
Iveth Robles started babysitting Jana in 2017 and babysat her for approximately
six months. Robles saw injuries on Jana and took a picture of her ear because it was
severely bruised. Robles said that both ears had bruising on them. When Robles
pointed out the bruising to Mother, Mother said that Jana had been scratching her ear
and that it had turned purple due to all the scratching. Robles also saw bruises on one
4
The reporter’s record totals over 2,000 pages and the clerk’s record spans
almost 1,000 pages. We therefore provide an overview before delving into the
particulars of the voluminous record.
3
of Jana’s legs; Mother said those bruises had occurred at another babysitter’s house.
On one occasion, Robles saw a red mark on Jana’s face; Mother said that Jana had run
into a door. Robles testified that she never saw Jana scratch or hit herself, nor did she
see her bang her head against a wall or a floor.
2. Testimony from the Director of Buckner Children and
Family Services
Cynthia Rentie, the director of Buckner Children and Family Services, testified
that her organization has residential programs for single mothers and that Mother and
Jana became residents of the program in February 2018.
In April 2018, a resident in an apartment adjacent to Mother’s reported that she
thought that Mother was abusing Jana because she heard a lot of screaming and
yelling and thought that she heard Mother spank Jana. When Rentie looked into the
accusations, Mother said that she did “get on to” Jana but did not spank her; Mother
yelled at her “but not in an abusive situation.”
In June 2018, there was a report that Jana was seen outside carrying a potty and
that Mother was potty shaming Jana. Mother said that she was teaching Jana how to
use the potty and having her sit on it. Rentie and Mother’s therapist told Mother,
“You can’t do that.” It was agreed that Mother would address appropriate potty-
training techniques in her counseling as part of her Buckner program.
After seeing bruises on Jana at a Mother’s Day event at Buckner in May 2019,
one of the residents made a CPS report. When Mother learned who had made the
4
CPS report, Mother went and confronted that resident in her apartment. The resident
called Rentie to report that Mother was in her apartment and would not leave. Rentie
testified that she was concerned because Mother was upset and would not leave the
resident’s apartment. The resident felt unsafe because of Mother’s actions and left
Buckner’s campus to go stay in a safe place.
On June 7, 2019, Rentie went to Buckner’s campus because Mother had called
the police due to being tired of people saying that she was going to hurt the moms or
the kids. Mother told Rentie that she was going to give Jana to Jana’s half brother’s
adoptive parents5 and that she had told three residents to take their kids inside
because she was unsafe. Mother called Jana’s half brother’s adoptive parents, and
they came to the campus, as well as the police. Mother was hysterical and was highly
upset. Other residents texted Rentie asking what it meant when Mother had said that
she was unsafe. When Mother told the moms that she was unsafe, her behavior,
according to Rentie, was irrational and unbalanced; Rentie said, “You didn’t know
what was going to happen.” Rentie and Mother’s therapist stayed with Mother until
she calmed down because she was sitting in her car and they were concerned that she
might harm herself.
Five days later on June 12, 2019, Rentie received a call at 2:24 a.m. that CPS
had come to the campus to investigate a report that Jana had to be airlifted and that
5
Jana, who was adopted by Mother, has one biological sibling—a half
brother—who was adopted by another family.
5
her blood was on the porch. CPS wanted Rentie to know that Jana was fine and that
someone was harassing Mother by making such a report. Rentie talked with Mother,
and she “was pretty hysterical.”
After that, Rentie said “all the different spoof calls [started] happening.” Rentie
explained that a couple of residents, the CPS worker and supervisor, and Rentie
started receiving anonymous threatening texts. They could never figure out who was
behind them, but the CPS worker thought that it might be Mother.
Rentie said that due to her concerns that Mother was unbalanced or unable to
control her emotions when she was upset and due to Mother’s confrontation of the
resident, Rentie decided that the campus was unsafe due to Mother. So Mother was
discharged from Buckner.
Rentie testified that she had seen Mother lose control or act in an irrational
manner when she (1) disregarded Rentie’s instruction to only text message the
resident who made the May 2019 CPS report and instead did whatever she wanted to
do at that time (i.e., confront the resident in person), (2) called 911 after telling the
moms to take their kids inside because she was unsafe, and (3) was discharged from
Buckner. Rentie said that Mother is not able to listen and think rationally and that
concerned her. Rentie testified that she was also concerned about Mother’s ability to
deal with a crisis or a conflict. Rentie agreed that Mother needed a lot of work to
overcome that in her future.
6
3. The Prior School Nurse’s Testimony
Robin Johnson, formerly a school nurse at the school that Jana attended when
she was approximately two years old, testified that the first time she saw an injury on
Jana, it was a swollen eye that appeared to be either bruised or an allergy. Mother sent
a note saying that Jana had allergies. Later, Johnson noticed that Jana had knots on
her head and bruises on her arm. After Jana appeared with a bite mark on her arm,
Johnson started paying closer attention. Johnson never observed Jana harming
herself, and no one ever reported to Johnson that Jana was exhibiting self-harming
behavior in the classroom.
Johnson called CPS on April 18, 2019, when Jana returned from a weeklong
absence with bruises and marks on her back that appeared to have been caused by her
being hit with a switch or some sort of object—in addition to bruises on her head, leg,
and elbow.
Johnson was concerned that Jana was being physically abused. Johnson
explained that the amount of injuries on Jana on that day was “far and beyond” what
she would expect for a child. Johnson further testified, “And the welt marks on her
back -- even if you could explain, ‘Well, she got a bruise on her leg,’ what’s going on
with her head and back? She can’t injure her back. She can’t get a bruise on her arm
like that. To me, that’s not self-injury.”
When Johnson was informed by Mother’s counsel that Jana had been seen by
the medical director of the child abuse group at Dallas Children’s Medical Center
7
during April to May 2019 and that he did not make a diagnosis of physical abuse,
Johnson said that she disagreed with the medical director’s conclusion.
C. The Injuries that Led to the Removal and Jana’s Forensic
Interview Connecting Mother to the Injuries
1. The Center Director of the Preschool
Elese Henry, who is the center director for a child-care facility in Arlington,
testified that Jana attended the center off and on during 2018 and 2019 and came to
school on different occasions with what appeared to be bruises or bite marks. Henry
testified about a picture that was taken on August 21, 2019, showing that Jana’s ear
was a red and purplish color. Henry said that Jana had arrived at the school with her
ear “really discolored.” Later that day, Jana’s shirt flew up when she was bouncing
around, and the teacher noticed a mark on Jana’s back that was made of four little
dots and appeared to be a bite mark. Henry said that the dots were not small enough
to be a child’s bite. Henry said that there was a bruise on the upper part of Jana’s
back and that she had a couple of little bruises next to the four dark marks; “[h]er
back was bruised up.”
On August 27, 2019, the day prior to Jana’s last day at the preschool, Jana’s
teacher saw a bite mark on Jana’s bottom. There were no incident reports indicating
that the bite had occurred at school.
Henry said that some of the teachers who had been at the school longer than
she had been there had been informed by Mother that Jana engaged in self-harming
8
behavior at home. Henry testified that she was never told by the teachers that Jana
was engaging in any self-harming behavior while at the day care.
Henry testified that Jana had previously arrived at school with bruises on her
face and that Mother always said that Jana had fallen. Henry said that, initially,
Mother’s explanation sounded plausible, “[b]ut when . . . you see bruises, back-to-
back bruises, like every other day, . . . you really start to [wonder] [w]hat’s going on?”
Henry said that whenever Jana missed a day of school, she came back with fading
bruises on her face, back, or arms. Jana told Henry on more than one occasion,
“Mommy loves me. She’s not trying to hurt me. She’s just trying to keep the bad
ladybugs away.”
Henry testified that she and her staff had concerns that Jana was being
physically abused. Henry said that she had made reports to CPS in 2019 and that she
believed her coworkers had made some reports to CPS prior to the reports that she
had made.
2. The Medical Director’s Testimony
Dr. Jayme Coffman, the medical director of the CARE team at Cook
Children’s Medical Center (CCMC), testified that Jana was seen at CCMC on
August 23, 2019, and on August 28, 2019. Jana was three and a half years old at the
time and was seen due to concerns of child abuse.
Dr. Coffman, who was not the treating physician on either occasion but had
reviewed the records (including photographs), testified that the skeletal survey
9
performed on August 23 showed no fractures, but Jana had several bruises on her
forehead, bruises on her upper back and shoulder blades, a bruise on her left upper
outer arm, bruises on her shins, a bruise on her ear, and an abrasion to her mid back.
Jana said that Mother had “whooped” her because she had “peed” on the couch.
Mother said that Jana was abusing herself.
Dr. Coffman reviewed records from Dallas Children’s Medical Center that
diagnosed Jana with ADHD, but she testified that “most children with ADHD don’t
hurt themselves, other than being active and falling. They’re not self-injuring, self-
abusive to themselves.”
Although Dr. Coffman did not examine Jana, she testified that the injuries
caused her concern that there was physical abuse:
The most concerning is the ear bruise because children don’t typically
get bruising on their ears from falls and accidents or even self-harm. It
has a fairly high sensitivity and specificity as an injury . . . for abuse.
Also, the bruise on her upper arm that wasn’t a bony area. It was
a soft and kind of a cushioned area. And typically, you don’t get bruises
in soft padded areas of your body from falls. So that was concerning as
well.
And we didn’t really have at that point a good explanation for the
abrasion and bruising on the back. So anything on the trunk can be
concerning as well.
Jana was seen again at CCMC on August 28, 2019, due to additional injuries.
She had circular bruising on her left butt cheek and on the right side of her face; both
10
of which appeared to be bite marks. 6 A new skeletal survey was performed, and it
was normal, as was the basic bleeding-disorder workup. Although Dr. Murillo—who
examined Jana on August 23—did not make a diagnosis of child abuse, the doctor
who examined Jana on August 28 diagnosed the bruises as physical abuse of a child.
Dr. Coffman saw some partial videos of Jana being examined at CCMC on
August 23 and said that she was squirmy. But Dr. Coffman did not see anything
indicating that CCMC’s personnel had injured Jana; Dr. Coffman said that there were
no objects in the exam room that would have caused the particular shape of bruising
that Jana had on August 28.
It was Dr. Coffman’s expert opinion that Jana was the victim of child abuse.
Dr. Coffman stated that although Jana’s injuries were not life threatening, the fact that
there were multiple injuries over time reflects a pattern of behavior that had been
inflicted on Jana. Dr. Coffman explained,
And so it’s not just the physical pain that it causes, but it’s also the
emotional abuse that goes with that. Which every episode is an adverse
event in the child’s life, which then, when we look at adverse childhood
events, . . . the more you have, the more likely you are to have long-term
health issues and [an] earlier death.
But Dr. Coffman testified that since Jana was five years old at the time of the trial, she
was past the highest risk of death from abuse.
6
Dr. Coffman said that she sees bite marks in child abuse and that “it’s typically
when the caregiver is very frustrated and acts out in almost an animalistic kind of
response.”
11
Dr. Coffman testified that if a caregiver has untreated mental-health issues, that
places a child at more risk for child abuse. Dr. Coffman said that if mental-health
issues are treated appropriately, “that reduces the risk.” Dr. Coffman explained that
untreated mental illness, depending on the type, “makes it difficult for the caregiver to
cope with behaviors in a child and [to] react appropriately[] [a]nd may also inhibit [the
caregiver’s] ability to care, so it increases the risk of neglect as well.”
3. The Forensic Interview
Jana underwent a forensic interview at Alliance for Children on August 27,
2019, when she was three years old. During the interview,7 Jana said that Mother had
given her a whooping for peeing on herself. Jana explained that Mother had given the
whooping with her hand and that Mother had hit her forehead. Jana stated that
Mother had thrown her with her hand and had kicked her in the leg with her feet.
Jana said that Mother had also whipped her with a purple spoon. Later when
identifying the parts on a doll, Jana said that Mother and her teacher had scratched
her back with their hands. Jana said that Mother had scratched her back because Jana
told her no; when asked why she had told Mother “no,” Jana said that she had wanted
Mother to stop hitting and scratching her back. Jana also described getting an
“ouchie” at CCMC; she said that she had hit her face on the table and that was why
7
The video of the forensic interview was admitted into evidence and played for
the trial court.
12
she had a Band-Aid on her cheek. She also said that someone at CCMC had closed
her ears when her ear was hurting.
4. The Child Protective Investigations Program
Director’s Testimony
Leanne Marks, who served as a program director with Child Protective
Investigations (CPI) in the summer of 2019, testified that Jana’s case was transferred
from Dallas County to CPI’s Crimes Against Children Unit in July 2019 after Mother
had moved from Dallas County to Tarrant County. A supervisor brought the case to
Marks’s attention because there were fifteen intakes from July 13 to July 24.
Marks said that they had performed case mapping on this case and described
the process as follows:
Case mapping is where we lay out everything in the case. We open it
from beginning to end. We look at the mother’s history as a child. We
look at her history prior to these intakes that have come in. But we look
for a continuing course of conduct[;] we look for trends. We look for
anything that we may not be seeing now.
And we decided to case map [this] case because we were a fresh
set of eyes. And Dallas had this case for quite some time. They had
some repeated intakes, and we knew nothing. So we were the best
people to come in and lay this case open with a fresh set of eyes and
look at the history from beginning to end.
....
. . . We printed every intake, every investigation report, every
report that was ever typed up and put in our system on [Mother]. We
printed all those out[,] and we looked at them page by page by page.[8]
8
Marks summarized the fifteen intakes:
13
Mother’s CPS history started in April 2018 with allegations that Jana had
marks, bruises, and injuries. The photos in the CPS system showed bruises to Jana’s
eye and face and a black mark under her eye.
When the case was transferred to Marks’s unit, there was a recent incident
involving an injury to Jana’s face, and Mother said the incident happened at Kroger.
On July 25, 2019, Mother texted a Dallas County CPS supervisor and said that she
had been attacked at a Kroger because someone recognized Jana.9 Mother texted that
people were calling her “monster,” taking pictures of her, and chasing her. The
supervisor asked if Mother had been physically attacked, and she said that they both
were and that she had called the police, who were on their way. Mother said that her
back was injured and that she was trying to calm down Jana and was going to take her
to the emergency room.
We got intakes that [Jana] was in a hot car, that she was being killed on
Facebook Live, that [Mother] was waving a gun on Facebook Live, [that
Jana] was dead, that [Mother] was drunk. Someone had done an intake
saying that [Mother] had asked the reporter to help put [Jana] in a body
bag and dispose of the body.
We got an intake saying that [Jana] was observed with swelling to
her right eye. There was a bite mark on her eye. [Mother] had choked
and hit [Jana]. Pictures were posted on Facebook of [Jana] having
injuries, and there was blood coming from her face and her mouth, that
she was on the doorstep of someone’s home with fresh bruising on the
right side of her face. Many more.
9
There were references throughout the record to the publicity that this case had
received.
14
When Marks spoke with Mother the following day, the story had changed:
Mother said that there was a bruise on Jana’s face due to her hitting her face on the
car door when Mother had opened it as they were trying to get away from the mob at
Kroger. Marks explained that they tried to verify the story,
but we could not find any 911 calls. We had Arlington Police go to
every Kroger. They went to ten Krogers in Arlington that [Mother]
believe[d] she may have been at. There were no videos, no 911 calls
there.
[Mother] said [that] she had taken [Jana] to a small emergency
room in Pantego. We identified which one she was talking about. They
had not seen [Jana], so we were never able to find any evidence that
anything ever occurred or ever happened.
A new referral came in on August 21, 2019, due to new injuries seen at the day
care. A decision was made to request an order to investigate because Mother was not
being very cooperative with Marks and had declined Family-Based Safety Services
(FBSS). Marks said that they also needed the order to investigate so they could have
Jana seen by medical professionals.
Jana was seen at CCMC for the injuries to her ear and back. A few days later,
there was a new intake when the day-care workers noted what appeared to be bite
marks on Jana’s face and bottom.
Marks was involved in the decision to remove Jana from Mother on August 28,
2019. Marks said that she was concerned over the inconsistent statements regarding
how Jana had received the injuries because “[n]one of the statements ever seemed to
pan out or make sense.” Marks said that the injuries always seemed to be centered
15
around potty training, being spanked, and Jana’s being afraid that Mother was upset
with her. Marks said that there was no evidence of the Kroger incident or anything
else that happened to give Jana her injuries, so they had only one person that they
believed was causing the injuries—Mother.
5. The CPS Investigator’s Testimony
Liliana Castillo, an investigator with Tarrant County CPS, testified that she
reviewed the case after it was transferred from Dallas and reached out to Mother to
meet with her. Castillo met with Mother on July 26, 2019, and Jana came with
Mother. Jana had a bruise on her right cheek. Mother explained that Jana had
sustained the bruise when she had hit her face on the door as they were running from
Kroger after a lady had punched Mother and had called her a monster. Mother said
that she had spoken with Arlington PD who had told her to take Jana to the
emergency room, so Mother took her to the ER in Pantego. Castillo was never able
to confirm the Kroger story.
On August 21, 2019, Castillo became aware that Jana had arrived at day care
that day with bruises on her ear and her back. Mother had indicated that she was not
willing to work with CPS, so CPS requested an order to investigate.
CPS obtained the order on August 23, 2019, and Castillo contacted Mother’s
attorney because she wanted Mother to bring Jana so that CPS could have her
evaluated at CCMC. They went to CCMC, and Castillo saw the bruise on Jana’s ear
and the scratch on her back. When Castillo was in a room alone with Jana, she made
16
an outcry of abuse; Jana said, “My mommy hurt me.” Castillo asked Jana what had
happened to her back, and she said that she had “got[ten] whooped” for peeing
herself. Castillo talked to Mother who said that she did not know the ear bruise was
there and that she had found out about it that day; Mother said that Jana had
scratched her back on the pool at Lake Livingston. Castillo observed Jana’s skeletal
survey and did not see her face get injured; Castillo also did not see any marks on
Jana’s face before she left the hospital. Jana went home with Mother and spent the
weekend and the following Monday in Mother’s care.
On Tuesday, August 27, 2019, CPS received a new referral from the day care
stating that Jana had a Band-Aid on her cheek and a bruise on her buttocks; the day
care also sent a photo. Castillo went to pick up Jana so that she could undergo a
forensic interview. After Jana made outcries in the forensic interview, CPS requested
a parent–child safety placement because they concluded that it was not safe for Jana
to go back to Mother. Mother agreed to have Jana placed with a family friend.
Mother said that Jana’s bruises were caused by CCMC when the medical personnel
had slammed her onto the table during her scan. Because Castillo had observed the
scan, she did not find Mother’s explanation to be credible.
On August 28, 2019, Castillo met with Mother and her attorney to sign the
parent–child safety paperwork and asked Mother to engage in FBSS. Mother was not
agreeable to FBSS. Also during this meeting, Mother changed her mind about having
17
Jana placed with a family friend,10 so CPS filed a motion to remove Jana. The trial
court granted the motion the same day.
After the Department took possession of Jana, they transported her to CCMC
for another evaluation. Afterwards, Jana was placed in a foster home.
Castillo believed that the injuries to Jana’s back, ear, bottom, and face in
August 2019 were caused by Mother because Jana had been in only Mother’s care,
because the day care had immediately reported seeing the bruises upon her arrival, and
because Jana had made the outcry about Mother. Castillo testified that she did not
investigate the teachers at the day care because Mother was the one with exclusive
care of Jana prior to the reports of the bruises:
So I know that she was seen -- from the ear bruise, she was seen on
Friday by the day care. And the next time they saw her is when they
reported it. And the same thing happened when she was seen with the
cheek and with the butt. [Mother] had [Jana] that Friday. That’s when I
had last seen her as well that night, and she didn’t have those marks or
bruises.
And then she was seen on Tuesday at the day care for the first
time. She did not go on Monday and on that Tuesday[,] [s]he was seen
with the marks and bruises.
Castillo disposed of the investigation into Jana’s injuries during August 2019 as
“reason to believe” for physical abuse of Jana by Mother.
10
When Jana was placed with the family friend, Mother violated the safety plan
by picking up Jana from day care even though Mother was supposed to have no
unsupervised contact.
18
D. The Remainder of the Department’s Case
1. Mother’s Psychological Evaluations
Dr. Kalima Charway, a licensed psychologist, testified that she performed a
psychological evaluation on Mother on November 9, 2019. As part of the
psychological evaluation, Dr. Charway performed the Personality Assessment
Inventory (PAI). Dr. Charway explained that the PAI indicated that Mother did not
answer the questions in a completely forthright manner; instead, she was trying to
present herself in an unrealistically positive light. The PAI indicated that Mother was
satisfied with herself, that she did not experience distress, and that she had little need
for changes in her behavior.
Because Dr. Charway did not have Mother’s psychiatric history at the time that
she performed the psychological evaluation, the trial court ordered a second
evaluation, which Dr. Charway performed on October 10, 2020. Before the second
evaluation, CPS sent Dr. Charway Mother’s psychiatric records from various
treatment facilities. Dr. Charway noted that Mother’s records revealed a history of
aggression and antisocial potential and that she had previously been diagnosed with
Bipolar II, psychiatric disorder, general anxiety disorder, and adjustment disorder.
During the second psychological evaluation, Dr. Charway repeated the PAI and
obtained results that were similar to those from the first time. Dr. Charway also
performed the Minnesota Multiphasic Personality Inventory-2 on Mother. It showed
that Mother had a chronic pattern of psychological maladjustment; that she was likely
19
immature and alienated; that she tended to manipulate others for gratification; that
she is indulgent and narcissistic; that she has a grandiose conception of her own
capabilities; that she may be quite aggressive with others; that she can be very
impulsive and act out her problems; that she rationalizes her difficulties; that she
denies responsibility for her actions; that she prefers to blame other people; and that
she tends to be hostile, resentful, and irritable. It further showed that Mother is
suspicious of others’ actions and then blames others for her own negative frame of
mind, that she views the world as a threatening place, and that she sees herself as
having been unjustly blamed for others’ problems and feels like she is getting a raw
deal out of life. Dr. Charway summarized her findings as follows:
Consistent with previous reports, [Mother] was guarding her responses,
and she was not likely willing to disclose information about her current
functioning and details[;] thus, some . . . portions should be interpreted
when reading these notes because she might be underreporting and
trying to purposely present herself in an unrealistically positive light.
A[s] far as her significant psychiatric records, the records reveal a
history of aggression[] [and] antisocial potential -- these are based on her
records[.] . . . [H]er previous diagnoses[ included] Bipolar II, psychiatric
disorder, general anxiety disorder, [and] adjustment disorder.
However, [Mother] denied any current psychiatric symptoms
associated with depressive, anxious moods like stress disorder[.]
Dr. Charway concluded that Mother continued to meet the criteria for Bipolar
II disorder. Dr. Charway testified that even though she had diagnosed Mother with
Bipolar II Disorder in full remission, Mother could still require monitoring or
medication management to stay on top of it so that there were no episodes.
20
Dr. Charway could not say with confidence that all the history and diagnoses would
not impact Mother’s ability to be a safe parent.
2. Mother’s Counseling11
a. Director of Merit Family Services
Carol Blackmon, the director of Merit Family Services, testified that Mother
became a counseling client in October or November 2019. Blackmon testified that
Merit’s no-show policy is that after the second missed appointment, they let CPS
know that the client is pending unsuccessful discharge.
Mother did not show for her first appointment with M.L. Gladney and then
switched to Bronwyn Lucas. Mother had a no-show in January 2020 and a couple of
other no-shows, so she was unsuccessfully discharged.
Mother returned to Merit for counseling in May 2020 and attended counseling
weekly or every other week from May 2020 to September 2020. Working on
parenting and mental health were added to Mother’s goals and objectives in fall 2020
when Mother switched to Melissa Montero because her prior counselor had left Merit.
Mother did not schedule an appointment in October 2020, and she canceled the
November 2020 appointment less than twenty-four hours prior, so it was counted as a
no-show. Merit then terminated Mother’s counseling because of excessive no-shows.
11
Although we dispose of the appeal without reaching the service-plan-
compliance finding, which was based on Mother’s failure to complete counseling, we
include a summary of testimony about Mother’s counseling sessions because such
testimony is relevant to the endangerment findings and the best-interest finding.
21
Mother was discharged unsuccessfully from her counseling. Blackmon testified that
the notes indicated that Mother did not make progress in her therapy.
b. Testimony from One of Mother’s Psychologists
Dr. Marta Otero, a clinical psychologist, testified that she saw Mother for
counseling nine times between December 7, 2020, and February 19, 2021, and that
they had a close-out session on April 15, 2021. Dr. Otero reviewed the October 10,
2020 psychological evaluation, which stated that Mother might portray herself in an
unrealistic positive light, and Dr. Otero saw this displayed during her sessions with
Mother. Dr. Otero noted that Mother tended to blame others for her situation and
that she was a covert narcissist. Dr. Otero opined that Mother needed to be honest
with herself and others.
Dr. Otero described Mother’s therapy as complicated because Mother’s stories
were inconsistent. Dr. Otero explained that the inconsistencies related to Mother’s
past: how many children she had birthed, her relationship with her adoptive parents,
and her relationships with past romantic partners. As examples of the inconsistencies,
Dr. Otero testified that Mother said she had a boyfriend, but “boyfriend went to
husband, then she had been married twice, then she went from . . . having one kid to
four or five kids and no abuse by [her adoptive father] and then sexual abuse and
physical abuse [by her adoptive father].” When Dr. Otero brought the inconsistencies
to Mother’s attention, Mother gave explanations, but they did not make sense to
Dr. Otero. Dr. Otero took issue with Mother’s many inconsistencies and
22
defensiveness, said that it was concerning that Mother’s truths kept changing because
she was not being forthright, and concluded that therapy had not gone far enough.
Dr. Otero said that there were goals for what Mother wanted for her future as a
mother and what she wanted for Jana, but there were not sufficient goals for Mother’s
mental-health treatment. Dr. Otero explained that Mother was not able to fully
comprehend that she may have had something to do with some of the problems in
her life.
Dr. Otero gave Mother the Child Abuse Potential Inventory, which showed
that Mother was defensive when she took it and that she scored as having high
probability for potentially abusing a child. Dr. Otero testified that a person who
comes from an abusive upbringing has a statistically higher chance of abusing or
neglecting a child. Dr. Otero’s opinion during the closing session in April 2021 12 was
that Mother needed more counseling before she could safely parent Jana.
3. CPS Supervisor’s Testimony
Kenyatti Tricksey, a case management oversight specialist with CPS, testified
that she was the supervisor of the conservatorship unit when Jana’s case was received
from Dallas in August 2019. Tricksey said that Mother’s service plan required her to
actively engage in parenting classes, a psychological evaluation, a psychiatric
12
The sessions with Dr. Otero ended because Mother had initiated services with
a private provider.
23
evaluation, and individual counseling;13 to follow through with recommendations
from the psychological and psychiatric evaluations; and to maintain her support
system.
Tricksey testified about a family group conference when Mother became visibly
upset with the conversation that was taking place over the phone; she was yelling at
the person on the phone, staring into space, foaming at the mouth, and clenching her
fists. Tricksey said that Mother’s physical demeanor was “very concerning” and
“could be intimidating and frightening to individuals who are not familiar with . . .
what’s going on with her.” Tricksey testified that she was concerned that someone on
the phone could upset Mother to the point that she did not care who was observing
her or her actions. Tricksey said, “[Mother] was acting that way in front of . . .
[people] who are considered strangers, so I can only imagine how she would act in
front of people [who] she cared about.”
Tricksey also testified about an incident when she saw Jana playing with a doll.
Tricksey noticed that Jana was pretending to be the doll’s mother and that Jana
immediately started disciplining her doll for peeing on herself. Tricksey testified that
13
Specifically with regard to counseling, Mother’s service plan required her to
attend and actively engage in Individual Counseling with[] Merit Family
Services. The focus will include addressing the issues surrounding the
reason for removal and parenting education. This service will also
address issues involving relationship concerns and any past abuse and/or
neglect. [Mother] is expected to consistently engage in counseling[] until
successfully discharged by the therapist and CPS.
24
Jana “was yelling at the doll, shaking the doll, and asking the doll, ‘Why do you keep
peeing on yourself? Every time I change your clothes, you always pee-pee on
yourself.’ She was putting the doll . . . on her shoulder, and she was patting the doll’s
bottom, shaking the doll, [and] turning the doll upside down.” Tricksey said that Jana
hit the doll and that the behavior “just came out of nowhere” as they had just been
admiring the doll. Tricksey opined that Jana’s behavior was consistent with the
outcries that she had made during the investigation stage because Jana had said that
Mother had hit her when she peed on herself.
With regard to visits, Tricksey testified that in December 2019, Mother started
canceling or rescheduling her visits, and there was a period of time where the
caseworker did not have any contact with Mother. By February 2020, the goal had
changed from family reunification to having the relative placement named as Jana’s
permanent managing conservator because Mother was not engaged in services.
Tricksey stated that Mother was not continuing to visit with Jana and was not
consistent with her individual counseling. The relative placement, however, did not
want to be Jana’s long-term placement.
Tricksey explained what the Department had needed to see from Mother in
order for reunification. Tricksey said that because the Department had concerns that
Mother was excessively disciplining Jana and being abusive to her, the Department
wanted Mother to take ownership or responsibility for why Jana was in the
Department’s care. Tricksey explained that Mother needed to admit that she was
25
responsible or that she believed that something had happened and was willing to
make sure it did not happen again. Mother needed to let the Department know how
things would be different and how she would be able to protect Jana from coming
back into care, such as by showing how she had taken the recommendations and
services and was putting them to use in her daily life. Mother did not make any
admissions of having abused Jana while Tricksey had the case. Tricksey understood
that Mother was facing criminal charges14 and might not want to admit what she had
done, such as biting Jana on her face and on her bottom.
4. Mother’s Testimony
The Department called Mother to testify. Mother was asked questions about
her past, including about her alleged children and miscarriages, her dismissal from
Central Texas College, her adoption of Jana, Jana’s injuries, the Kroger incident, what
she had learned from her services, and her current housing and employment status.
a. Alleged Children and Miscarriages
Mother testified about giving birth to numerous children, including when she
was living with her adoptive parents, and claimed that there were “[t]oo many to
recall.” 15 Mother said that she had been given Risperdal injections to drug her and
14
The record includes an indictment charging Mother with “intentionally or
knowingly caus[ing] bodily injury to [Jana], a child younger than 15 years of age, by
striking or pushing her with the defendant’s hand or kicking her with the defendant’s
foot or striking her with a spoon” on or about August 23, 2019.
26
that her adoptive father was the father of all the children.16 When Mother was shown
the alleged children’s birth certificates, which had been produced on her behalf during
discovery, Mother testified that she had not been told by her prior counsel that the
birth certificates were false.
Mother testified about various miscarriages that she had while the case was
pending. Mother said that her adoptive father was the father of the child that she
miscarried in July or August 2020. Mother did not know why the hospitals that she
had gone to did not have records from those events.
b. Dismissal from Central Texas College
Mother admitted that Central Texas College, which she had attended from
2009 to 2011, had told her that she was not allowed to live on campus or attend
classes there. Mother explained that in the summer of 2011, while her friend had
Mother’s phone, she received harassing text messages. The police concluded that
Mother was sending the texts. Mother said that she signed a document, which stated
that she was a threat to herself and others.
15
None of the children lived with Mother, and no mention was made of where
the children lived.
16
Similarly, Marks testified that Mother’s accusations—that her adoptive father
had sexually abused her—did not “pan out” as there were no reason-to-believe
dispositions in his CPS history.
27
c. Adoption of Jana
Mother testified that she was a single parent and had adopted Jana. Mother
described Jana as a sweet, kind, bubbling, and beautiful five year old who is very tall,
very smart, and “the life of the party.”
d. Jana’s Injuries
Mother testified that when Jana was in her care, she came home from day care
with injuries but never said that a teacher had hurt her or had hit her, so Mother did
not report any concerns. Mother had not ever seen any injuries on Jana that she
believed were anything other than self-inflicted injuries from falling down.
Mother explained that the injuries that Jana had while in her care were from
falling and from Mother’s not being protective when Jana had fallen or had run into
the walls. Mother did not agree that Jana had bruises and marks on her all the time
leading up to her removal in August 2019. When asked why Jana had said that
Mother had “whooped” her, Mother believed that Jana had heard other people talking
and had repeated what she had heard. Mother testified that she had never whooped
Jana with a spoon; had never thrown, kicked, or bitten Jana; and had never scratched
her back, hit her on her shoulder, pulled her ear, or hit her in the face. Mother said
that she did not punish Jana; she had a timeout chair for discipline.
e. Kroger Incident
Mother gave her description of the Kroger incident. She said that during that
time, there were reports at UTA about Jana’s being abused, and “a lot of the students
28
were aware.” Mother said that she and Jana had gone to Kroger “right by UTA,” and
some people recognized them and called Mother “a monster, a child abuser.” During
the incident, Mother was on the phone with a friend, who said that she was “about to
call the police.” Mother said that she and Jana started running out of Kroger and that
Jana hit her face on the door of the car. Mother took Jana to Surepoint Clinic on
South Bowen Road in Pantego, but the person at the front desk did not check them
in; the clinic did not take Jana’s Medicaid, and the receptionist said that Jana looked
fine, as she just had a red mark.
f. What Mother Learned from her Services
Mother attended anger-management classes through Positive Influences in
Dallas and completed first-aid and CPR training. Mother testified that she had
learned to handle stressors by contacting her therapist when Mother’s past was
brought up during hearings; specifically, Mother mentioned the stressors that had
upset her included being called a liar and being described as having fabricated stories.
With regard to counseling, Mother testified that she had been seeing Nykitia
Ledbetter for therapy since October 2020 but had not provided any records to Our
Community–Our Kids (OC–OK) 17 or CPS because her prior attorney advised her not
to. Mother said that during the twenty-three months that the case had been pending,
she had been in trauma-informed therapy; she had learned to practice self-care, to
17
Tricksey explained that in March 2020, the Department transitioned to
privatized conservatorship services in this region, and those services are provided by
OC–OK, which is also called Our Community–Our Kids.
29
acknowledge her feelings, and to ask appropriate questions to Jana; and she had been
taking care of herself through therapy and “just being consistent.” Mother testified
that continuing to develop trust and continuing to work on that in therapy would put
her in a better position moving forward to reach out to someone when things start
going south.
Mother said that she had participated in Love and Logic Parenting, part one
and part two, and had attended a class in Bedford. Prior to the removal, Mother had
attended two eight-week parenting classes at Buckner Family Services. Mother said
that after going through counseling and parenting classes, she could now see why the
Department had removed Jana from her care.
g. Current Housing and Employment Status
Mother testified that she lived in a house in a safe location in Dallas but was
not willing to provide the location to anyone except the trial court judge. Mother
testified that she had been employed since January 2020.
5. Permanency Specialist with OC–OK
Carmesha Sanders, a permanency specialist with OC–OK, testified that she was
the caseworker on this case from its beginning in August 2019. Sanders’s testimony
covered the visits that she had supervised, Mother’s counseling, Mother’s housing,
Mother’s anger and tendency to be unsafe, Jana’s placements, Jana’s health and her
needs, and the Department’s recommendation for termination and plan for Jana to be
adopted.
30
a. Visits
Sanders observed the visits from September 2019 through November 2020.
Sanders was present for a visit with Mother and Jana on December 18, 2019. During
that visit, Jana knocked Mother’s phone off its stand and kept saying, “I’m sorry. I’m
sorry, Mommy, I didn’t mean to. I’m sorry. I’m sorry.” Later in the visit when
Mother and Jana were making Christmas cookies, Jana said, “You’re being nice to me
now. You’re being nice.” Sanders said this heightened her attention and “was a little
concerning because [Jana] had never said anything like that.” After that visit, Mother
did not visit with Jana again until February 11, 2020.
During the visits that Sanders observed from September 2019 through
November 2020, Mother always brought a lot of things to the visits and held
parties—a spa party, a Dr. Seuss party, and a tea party. Sanders said that Jana started
to expect extravagant things during the visits and that her behavior was “a little
rambunctious” if she did not get it. Jana wanted to play with the toys in the room,
but Mother always had an activity for them. Mother recorded the visits until an
observer forbid Mother from having her phone out. Up until then, Sanders agreed
that the visits were “kind of made-for-social-media moments” and said that the visits
were posted to social media.
31
Sanders testified that Mother and Jana have a bond and that Jana loves
Mother. 18 Sanders opined that Jana’s bond with Mother was not a healthy one
because Mother was trying to put on a show during the visits so that she could record
them instead of just being herself and visiting with Jana as if no one was watching.19
Sanders testified that she had concerns that Mother was manipulating Jana because
Jana had gone back to her foster parents and had told them that Mother had told her
that she could pee on herself if she wanted to and did not have to listen to them if
they told her to do certain things.
After Sanders stopped observing the visits, she received reports that the visits
were going fine. Sanders agreed that Mother had been nurturing and attentive during
the visits. There were no reports during the visits regarding Mother’s failure to
demonstrate coping skills. Overall, Sanders said that with the exception of the time
frame from Christmas 2019 to February 2020, Mother was “pretty consistent” with
her visits “with a few no-call-no-shows scattered in between.”
b. Mother’s Counseling
With regard to Mother’s counseling, Sanders testified that Mother initially went
to Bronwyn Lucas and then to Melissa Montero at Merit Family Services. Sanders
said that she wanted Mother to address the reasons for Jana’s removal and to
18
The trial court noted a stipulation regarding a bond between Mother and Jana.
19
Dr. Otero, during her testimony, noted that visitation is not a natural
environment and is not a good indicator of what the parent–child relationship actually
looks like outside the bounds of being supervised.
32
acknowledge why Jana was in care. Specifically, Sanders wanted Mother to
acknowledge the bruises that Jana had sustained regardless of whether she agreed that
she had caused the bruises. Sanders said that Mother’s explanations for Jana’s bruises
were that Jana had thrown violent temper tantrums or that she (Mother) had not
caused them. When Sanders asked who did, Mother never could tell her or would not
tell her.20
Sanders also wanted Mother to address the stressors in her life and to develop
coping mechanisms. Sanders opined that Mother did not make progress in her
counseling with Montero because she “went in and expressed her frustrations with
CPS more than she talked about why [Jana] was in care, [what] coping or stressors she
was having, [and what] issues she was having with parenting.” Sanders said that
Mother needed to address her past trauma but that was all that she seemed to be
focused on; Mother did not seem concerned that Jana had trauma as well that Mother
needed to address. Sanders noted that Mother did not seem particularly concerned
about Jana and her issues. Sanders felt that Mother was not being completely honest
with herself and with Montero.
There were gaps in the counseling sessions, and that was concerning to
Sanders. Mother was unsuccessfully discharged from Merit.
Sanders understood that Mother had a pending criminal case and had likely
20
been instructed not to talk about certain things.
33
After Mother indicated that she wanted to choose her own counselor and not
go through Merit Family Services and the trial court signed an order allowing Mother
to do so, Mother chose Dr. Otero. Sanders testified that even with Dr. Otero,
Mother did not address the reasons for Jana’s removal and did not take responsibility
for what had happened to Jana. Sanders testified that Mother was not honest with
Dr. Otero “about everything, her past, and her trauma, all the way up to the present.”
c. Mother’s Housing
Since February 2020, Sanders had not been told where Mother was living and
needed to know so that she could assess the home for safety and to make sure that
there was stability. Mother claimed to be in some sort of protective custody, but
Sanders did not know anything about that.
d. Mother’s Anger and Tendency to be Unsafe
Sanders was present during the family group conference call when Mother got
so angry that she had spit forming in the corners of her mouth. Sanders said that it
was concerning that Mother had let someone get her that upset, that the rage
completely took over, and that no one in her support circle could calm her down.
Sanders noted that Mother had blamed everything that had happened to her—
from her time in care until the trial—on other people. Sanders said that Mother had
34
not taken responsibility for her own actions and was seeking attention. Sanders
opined that Mother has untreated mental-health issues. 21
Sanders opined that Jana would not be safe if she were returned to Mother
because Mother had not “addressed anything.” Sanders said,
[Mother’s] behaviors over the course of this case have not changed.
She’s very repetitive, like I said, in her visits and the routine that they do
every week. So I feel that I’m not getting a true depiction on if she’s
even learning . . . anything in her parenting, if she’s addressing or
learning anything in counseling. I’m not getting a true depiction on what
she has or has not addressed since this case has been open.
Moreover, Sanders was concerned about reuniting Mother with Jana because Jana was
still having potty accidents and because Mother’s handling of Jana’s prior potty
accidents had brought Jana into the Department’s care.
Sanders testified that Mother had been allowed twenty-three months, instead of
the standard twelve months, to address the Department’s concerns. Sanders said that
Mother had been given plenty of time to address her services.
e. Jana’s Placements
Jana stayed with Ms. D., a placement requested by Mother, from December
2019 until May 2020.22 On May 27, 2020, when Sanders went to pick up Jana to take
21
Sanders said that the concerns about Mother’s untreated mental-health issues
were based on Dr. Charway’s report, reports from Mother’s adoptive parents, the
report from Central Texas College, and the concerns raised by her counselors at
Merit.
The record reveals that Jana was initially placed in a foster home. While Jana
22
was there, she was taken to the CCMC emergency room on October 3, 2019, due to
35
her for a visit with Mother, Jana had a red mark on her forehead. Mother also saw a
mark on Jana’s inner arm and elbow.23 Mother said that she did not want Jana going
back to Ms. D.’s house after the visit and was insistent that she be moved to another
placement that night.
So Jana was moved that night to the house of another couple that were friends
with Mother. That couple had already been verbally approved as a placement after
their home study was completed, and they were willing to adopt. Jana stayed with
that couple from May 2020 until October 2020 when Jana started exhibiting “some
pretty bad behaviors.” Sanders explained that Jana had become aggressive with the
couple’s youngest daughter. Additionally, due to the attention that this case was
receiving, the couple was concerned about their safety and their family’s safety. So
the couple informed CPS that they no longer wanted to be a placement.
Jana went to a foster home on October 29, 2020, and remained there until trial.
f. Jana’s Physical and Emotional Health and her Needs
Sanders said that Jana has issues with boundaries and does not understand
personal space. Additionally, she can exhibit aggressive behaviors and is “real handsy
with people, hitting people.” Jana had slapped Mother twice during a visit in 2020.
concerns that a four-year-old foster child in the same home was sexually acting out on
Jana. Jana was removed from the home and placed with Ms. D.
23
Sanders testified that she had not seen bruises on Jana while she was in care
other than the red mark on her forehead and a mark on her elbow when she picked
her up from Ms. D.’s house.
36
Sanders testified that Jana receives behavioral therapy because her behavior
fluctuates. Sanders said that even though Jana was five years old, she was still having
potty accidents.
Sanders noted that since Jana had been in the Department’s care, she had made
outcries against Mother, stating that Mother had hit her with a purple spoon, that
Mother had whooped her after she had peed on herself, that Mother had poured
alcohol in her eyes and in her mouth, and that there had been “several other things.”
Jana had not made outcries against any of the placements.
Sanders was present when Jana was hitting her doll and said, “You don’t
typically see children beating up on their dolls or hitting on their dolls unless they’ve
either seen it or it’s happened to them.” It was concerning to Sanders because she
had never seen a child play like that. Sanders said that Jana was attending play therapy
because it was recommended by her behavioral health doctor in February 2020.
Sanders testified that at Jana’s initial dentist visit, she had a few cavities in the
back of her mouth, and her front two teeth were decayed. The dentist put caps on
Jana’s back teeth and pulled the decayed teeth.
Sanders testified that Jana needs a caregiver who will be patient with her and
will help work with her on her behavior; who understands her past and what she has
been through; and who gives her the care, nurturing, and love that she needs to thrive.
37
g. The Department’s Termination Recommendation and
Adoption Plan
Sanders said that Jana and her half brother “absolutely love each other” and are
“really bonded to each other.” Sanders said that Jana’s half brother’s home seems like
a very loving home and that Jana was familiar with the family because she had visited
them before she came into the Department’s care and throughout the case.
Additionally, the family had provided respite care for Jana when her foster parents
went out of town.
Sanders testified that Jana was not placed with her half brother’s family at the
time of the trial because they were receiving threats and did not want to endanger
their family, but at the time of trial, they were willing to be the adoptive placement for
Jana. Sanders opined that Jana’s half brother’s parents would be able to meet Jana’s
emotional needs; her needs for counseling, behavioral therapy, and play therapy and
the follow-up for those; her physical and medical needs; and her educational and
developmental needs.
The Department sought to have the trial court terminate Mother’s parental
rights to Jana. 24 Regarding the endangerment grounds, Sanders said that Mother had
abused Jana over a several-year period and had not addressed it but instead had been
in denial about it. Mother would not take responsibility and had blamed the bruises
24
The Department noted that there was a Court-Appointed Special Advocate
(CASA) on the case and that the CASA volunteer supported the Department’s
position.
38
on Jana. Sanders agreed that Jana’s living in a home with Mother, who was abusing
her, was an endangering condition. Sanders believed that Mother’s untreated mental-
health issues had contributed to Mother’s endangering conduct toward Jana. Sanders
opined that Mother’s untreated mental-health issues had affected her ability to cope.
Sanders testified that the service-plan ground was based on the fact that
Mother was not successfully discharged from counseling. Sanders said that no matter
what goals Mother had set with the counselor, she had not addressed any of the
Department’s concerns and had not taken responsibility for Jana’s coming into the
Department’s care.
Sanders opined that it was in Jana’s best interest for Mother’s parental rights to
be terminated because Mother manipulates Jana and has a strong hold on Jana that is
not healthy. Sanders explained that Jana’s behavior was always different after she
returned from a visit with Mother. 25 Sanders opined that Mother could not meet
Jana’s needs because Mother “doesn’t really truly understand what needs behaviorally,
emotionally, that [Jana] has.”
Sanders asked that the Department be named as permanent managing
conservator of Jana with the right to place her for adoption. Sanders said that the
Department’s permanency plan for Jana is adoption by Jana’s half brother’s family.
25
The CASA volunteer’s report filed on July 15, 2021, states, “Per foster mom,
[Jana’s] moods and behaviors seem[] to be most inconsistent and less controlled after
visits with [Mother] due to confusion in what [Mother] is communicating to her.”
39
E. The Defense’s Case
1. Mother’s Testimony
In its case, the defense recalled Mother to testify. During her testimony, she
expounded on some of the same topics that she had previously been questioned
about by the Department, including her mental health and prior pregnancies, Jana’s
injuries, and the visits and provided new testimony on her support system, her plans
for caring for Jana, and her request for the trial court not to terminate her parental
rights to Jana.
a. Mother’s Mental Health and Prior Pregnancies
Mother did not believe that she had an unrealistic positive outlook; she said
that she had to build herself up to be able to function, hold down a job, supervise
others, and be a safe parent for Jana. Mother said that in order to achieve her goals,
she was continuing with therapy, uplifting herself, staying calm, working, gardening,
blowing bubbles, socializing with friends, and continuing to do things that she enjoys.
Mother said that she is always 100% concerned about Jana and her safety; Mother said
that she was not more concerned about herself than Jana. With regard to Mother’s
mental and emotional health at the time of trial, she said she felt okay even though it
had not been easy “hearing the things that [she had] heard.”
Mother said that she remembered being pregnant in elementary school and
remembered giving birth but only recalled giving birth to two children. Mother
believed that her prior attorney would not have submitted anything false, so Mother
40
believed that the birth certificates—which stated that Mother had given birth to
triplets in 2001 when Mother was ten years old—were real.
b. Jana’s Injuries
Mother denied that she had caused any of Jana’s injuries. Mother said that the
mark on Jana’s face came from CCMC; she did not believe the doctor’s opinion that
the mark was a bite mark. Mother said that Jana was not in her care when she got the
mark on her bottom that looked like a bite mark; instead, Mother said that Jana was in
CPS’s care on August 28 and that she was with Ms. D. on August 27. 26
Mother testified that she had never physically disciplined Jana and had never
whooped her, bit her, hit her, or pinched her ear. Mother knew that Jana had made
outcries regarding Mother’s whooping her, but Mother said that Jana had heard that
term when people had questioned her. Mother said that when Jana had potty-training
accidents, she had used a calm tone with Jana because she does not like yelling.
When asked if she had taken ownership for why Jana had come into the
Department’s care, Mother said, “I didn’t abuse [Jana], physically abuse her or put her
around anyone that hurt her. I can say that I should’ve been more protective when
she was having her meltdowns.” Mother testified that she felt like she had let Jana
down because she had gone into the foster-care system. Mother conceded that she
had made mistakes in parenting in the past and said that she could see that there were
During her deposition, Mother admitted that she had worked from home on
26
August 26 with Jana present and that she had taken her to day care on August 27.
The record further reflects that the marks were seen by the teacher on August 27.
41
a lot of things that she could have done differently during the case or even prior to
the case to avoid being in trial.
Mother testified about things that she had learned during the case. For
instance, Mother said that she had learned that she needed to nurture Jana whenever
she has meltdowns or behavioral issues and that she needed to be age appropriate
with Jana regarding how she talked to her, not talking like an adult. Mother said that
she had very high expectations for Jana and that her expectations were higher than
what were normal for a two or three year old because she did not have anyone setting
expectations for her. Mother said that she had learned that she needed to get on
Jana’s level and to allow her to make mistakes.
c. Visits
Mother said that during the visits, Jana did not seem to trust her. As an
example, Mother explained that Jana had told her, “Well, that’s not what my foster
mom said[,] so I don’t have to do what you say.” Mother testified that she had never
“lost her cool” during the visits and never had to be redirected.
d. Support System
Mother’s support group was virtually the same as it was before Jana’s removal
when she had injuries. Yet Mother said that with her support network around her,
she could safely and effectively parent Jana and would reach out to them if things
started going south.
42
e. Mother’s Plans to Care for Jana
Mother testified that at the last visit before the trial, Jana said that she wanted
to go home and that she missed Mother. Mother said that she was ready for Jana to
come home. When asked what had made Mother ready for Jana to come home, she
answered, “It’s just been too long without her.”
Mother testified that she was salaried, was renting a three-bedroom house, and
had put Jana on her health insurance. Mother had a bedroom set up for Jana and
admitted a picture showing what it looked like. Mother said that if Jana were returned
to her, she would contact one of her former day-care providers to have her care for
her during the one day each week that Mother has to go into the office.
f. Mother’s Request Not to Terminate
Mother testified that she had the ability to be a good and safe mother to Jana
and that the main thing that she wanted the trial court to know was that she wanted
Jana home. Mother asked the trial court to deny the Department’s petition seeking to
terminate her parental rights. Mother said that it would not be in Jana’s best interest
because Jana wants to come home. Mother asked the trial court to give her an
opportunity to make things right with Jana and believed a monitored return was in
Jana’s best interest.
2. Testimony from the Counselor that Mother Chose
Nykitia Ledbetter, a licensed professional counselor with her own practice,
testified that she had been Mother’s therapist since October 2020. Ledbetter said that
43
she was not provided CPS records because she did not have any relation to the court.
Ledbetter described her role as helping Mother through her traumatic experiences.
Ledbetter said that Mother had talked about being raped by her adoptive father
and had said that she had given birth to multiple children but could only recall a girl
and a boy because she had been drugged. Ledbetter testified that she had asked
Mother if her adoptive father had ever been around Jana, and Mother said once while
in her care. Ledbetter asked Mother why she would think that was okay to expose her
daughter to the person who had harmed Mother; Mother responded that she was not
thinking and then admitted that she had put Jana in danger.
Ledbetter’s notes from October 21, 2020, state that Mother shared some details
of how and why Jana was removed. The notes reflect that Mother said, “I would
never hurt her. Hell, I didn’t even give her whoopings.” Ledbetter agreed that
Mother had not taken responsibility for any physical abuse.
Ledbetter testified that Mother’s diagnosis was “major depression disorder,
recurrent, moderate.” Ledbetter explained that “things within [Mother’s] life have
caused depression that ha[d] lasted more than two weeks on a consistent behavior.”
Ledbetter said that Mother’s treatment objectives were based around depression and
trying to improve her day-to-day mood, self-esteem, and dysphoric function.
Ledbetter explained that dysphoric means that “things are not within the norm.”
Later, Ledbetter said that dysphoric mood means “irritable with everything that’s
going on. Like, she’s off balance with everything that’s going on in her life.”
44
Ledbetter said that Mother was not taking medication for depression because
medication was a trigger for her as Mother had shared that “she was drugged a lot
when younger and was not able to function and doesn’t recall things accurately, so she
does not even want to consider medication.” A June 2, 2021 therapy note stated that
Mother had expressed some frustration about a suggestion that she go to a mental-
health facility. Mother opined that would be agreeing to the term “crazy” that she felt
she was being labeled; she did not think that there was any reason for her to go to a
mental institution because there was nothing logically wrong with her.
Ledbetter was asked to read her notes from Mother’s November 18, 2020
session in which Mother shared details of her rough week:
[Mother] made a comment of maybe allowing her daughter to stay in a
nice placement so she would not have to deal with her past.
When [I] asked [Mother] to explain what she meant, she stated, “I
did nothing wrong, but I’m being punished for some reason and don’t
want my daughter to have to deal with it because of someone not liking
me or doing this to me.”
[Mother] expressed her visit with her daughter was not the best.
She shared her daughter expressed not coming home and telling her she
can do what she wants. In this moment [Mother] expressed feeling a
loss of control in parenting her child.
She shared not knowing what to do or say because she does not
want to say the wrong thing. She shared when she got home, she just
cried for hours.
Ledbetter could not opine on when Mother’s therapy would be complete; she
said that Mother would be in therapy “definitely for a few more months.” Ledbetter
45
opined that the progress that Mother had made up to the time of the trial could put
her in a position to safely parent Jana if the trial court sent her home.
F. The Ad Litem’s Recommendation
Jana’s attorney and guardian ad litem’s closing argument to the court included
the following recommendations:
So while in general I am [for] reunification, I can’t support it here.
We’re two years into this case. Next month it will be two full years that
the child has been removed. Mom has yet to admit responsibility or
admit to anything. If you don’t admit to it, you can’t address the subject.
She presented her counselor today[;] they aren’t addressing the CPS.
They’re just addressing her past.
....
The child is doing well in her placement right now. And as stated
in the forensic, [Jana] says her best friend[] . . . is her brother. That’s
where the Department wants to place her, and that’s where I want the
child to go.
While it’s true that Mom and [Jana] had good visits[,] [t]hey’re
supervised. They’re not a real situation. And it’s true that Mom loves
the child and [that] the child loves Mom. Love is not everything. As the
[CCMC] expert on child abuse said, just because the child says they love
a parent, doesn’t mean the child wasn’t abused. And until the mother
addresses her issues, the child is still in danger.
Even if it’s nonlife[-]threatening [abuse] and that nonlife[-]
threatening [abuse] continues in the future, doesn’t mean it’s not going
to . . . be traumatic for the child in the future, mentally.
For the reasons of that, I’ll summarize here in my closing. I feel
it’s in [Jana’s] best interest to terminate the parental rights and give up
her for adoption.
46
G. Trial Outcome
After hearing the evidence, the trial court found by clear and convincing
evidence that Mother had knowingly placed or had knowingly allowed Jana to remain
in conditions or surroundings that had endangered her physical or emotional well-
being, had engaged in conduct or had knowingly placed Jana with persons who had
engaged in conduct that had endangered her physical or emotional well-being, and
had failed to comply with the provisions of a court order that specifically established
the actions necessary for Mother to obtain the return of Jana who had been in the
permanent or temporary managing conservatorship of the Department for not less
than nine months as a result of Jana’s removal from Mother under Chapter 262 for
the abuse or neglect of Jana and that termination was in Jana’s best interest.
III. Sufficiency Challenges
In her first, third, and fourth issues, Mother argues that insufficient evidence
supports the trial court’s endangering-environment, endangering-conduct, and best-
interest findings. We will set forth the standard of review and then analyze the
endangerment findings together before proceeding to the best-interest finding. We
then conclude, based on the evidence summarized above, that legally and factually
sufficient evidence supports the trial court’s termination findings.
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A. Standards of Review
1. 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), .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.
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 Family Code
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Section 161.001(b)(1), and (2) termination is in the child’s best interest under Section
161.001(b)(2). 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 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 the (D) or (E) grounds on appeal 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); N.G., 577 S.W.3d
at 237 (“[I]f a court of appeals affirms the termination on either [(D) or (E)] grounds,
it must provide the details of its analysis.”). Termination may not be based solely on
the child’s best interest as determined by the 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.).
2. Legal Sufficiency
In evaluating the evidence for legal sufficiency in parental-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 is 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
49
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 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.
3. 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
conviction or belief that the parent violated an alleged ground and that termination is
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
50
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.
B. Predicate Grounds (D) and (E)
1. Applicable 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,
125 (Tex. App.—Fort Worth 2003, no pet.). The parent’s conduct need not be
directed at the child nor must the child actually suffer injury in order to be endangered
within the statute’s meaning. J.T.G., 121 S.W.3d at 125.
Under (D), we examine evidence related to the child’s environment to
determine if that environment endangered the child’s physical or emotional well-
being. Tex. Fam. Code Ann. § 161.001(b)(1)(D); J.T.G., 121 S.W.3d at 125. A
parent’s conduct in the home can create an environment endangering a child’s
physical and emotional well-being. J.T.G., 121 S.W.3d at 125. Additionally, untreated
mental illness can expose a child to endangerment and is a factor the court may
consider. See In re L.L.F., No. 02-11-00485-CV, 2012 WL 2923291, at *15 (Tex.
App.—Fort Worth July 19, 2012, no pet.) (mem. op.) (“This court has held that a
parent’s failure to take medication can create an environment or expose a child to an
environment that endangers the child’s emotional or physical well-being.”).
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Subsection (D) permits termination based on a single act or omission, and conduct
that demonstrates awareness of an endangering environment is sufficient to show
endangerment. See Tex. Fam. Code Ann. § 161.001(b)(1)(D); Jordan v. Dossey, 325
S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
Under (E), we ask whether evidence exists that the parent had engaged in
conduct or knowingly placed the child with someone who had engaged in conduct—
including acts, omissions, or failures to act—that endangered the child’s physical or
emotional well-being. Tex. Fam. Code Ann. § 161.001(b)(1)(E); J.T.G., 121 S.W.3d at
125. Additionally, (E) requires not just a single act or omission but rather a voluntary,
deliberate, and conscious course of conduct. J.T.G., 121 S.W.3d at 125.
We may conduct a consolidated review of (D) and (E) grounds when the
evidence pertaining to both is interrelated, as it is here. See In re M.R.J.M., 280 S.W.3d
494, 503 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g).
2. Analysis
Here, the record demonstrates that Mother’s conduct in the home created an
environment that endangered Jana. As summarized above, Jana arrived at her
babysitter’s, at day care, and at preschool on multiple occasions with bruises and
injuries on her after being solely in Mother’s care. The babysitter and day care
workers did not ever see Jana engaging in self-harming acts, and some of the injuries
that Jana was seen with—a bruise on her ear and marks on her back, bottom, and
cheek that appeared to be bite marks—were not of the type that could be self-
52
inflicted. After reviewing the records from CCMC, Dr. Coffman concluded that
Jana’s injuries were the result of child abuse. The evidence further demonstrated that
the perpetrator of Jana’s abuse was Mother, as shown through (1) Jana’s forensic
interview in which she stated that Mother had whooped her with her hand and a
purple spoon, had hit her forehead, had thrown her, had kicked her, and had
scratched her back and (2) Jana’s statements that she made at the hospital about
Mother’s whooping her for peeing on the couch. Moreover, Mother was aware that
her conduct created an unsafe environment for Jana and even went so far as to tell the
residents at Buckner that she was unsafe and that they needed to take their children
inside. At bottom, this evidence is legally and factually sufficient to support both
endangerment grounds.
Mother, relying on C.D.E., argues that a parent’s conduct cannot be the basis
for the endangering-environment ground. See 391 S.W.3d at 296. In C.D.E., we held
that the evidence was legally insufficient to terminate the parental rights of an
incarcerated father, whose children were placed with their drug-using mother in a
house without food or running water, when there was no proof that he was aware of
the dangerous environment that his children were in and had disregarded that risk. Id.
C.D.E. is thus distinguishable from the scenario we have here in which Mother was
aware that she was unsafe to be around. And as set forth above, a parent’s conduct
can be considered as part of the endangering-environment analysis. See J.T.G., 121
S.W.3d at 125.
53
Mother also argues that there is no evidence that the conditions of any of the
residences where she lived with Jana were uninhabitable or inadequate or that there
was any alcohol or substance abuse. Mother’s argument piggybacks on her previous
argument and disregards that the endangering-environment ground includes her
conduct, not just the habitability of the residences where they lived. See id.Mother next argues that her actions could not have been “knowingly” because
the Department took the position at trial that Mother was acting under delusions.
Mother does not point to any case in which a person with mental-health issues similar
to hers was deemed unable to have the requisite intent for allowing a child to remain
in an endangering environment. Instead, as set forth above, case law allows a court to
consider untreated mental illness as a factor in the endangering-environment analysis.
See L.L.F., 2012 WL 2923291, at *15.
Mother further argues with regard to the endangering-environment ground that
the only harm that Jana suffered was at day care (because Jana mentioned during her
forensic interview that a teacher had scratched her back), at CCMC when she was
evaluated, and when she was sexually abused in foster care. Mother argues that she
had no knowledge of the teacher’s harming Jana until she disclosed it in the forensic
interview and that the harm at CCMC and in the foster home were situations created
by the Department, not Mother. With regard to the day care, the record reveals that
there were no reports of injuries to Jana while at the day care and that Jana also made
an outcry regarding Mother’s (not just the teacher’s) scratching Jana’s back. With
54
regard to any possible injuries during the medical tests performed at CCMC, Castillo
testified that she was with Jana during the testing and did not see the medical
personnel cause Jana any injuries and that Jana did not have a bruise on her face when
she left CCMC. And with regard to the alleged sexual abuse that Jana endured while
in foster care, that abuse is properly considered in the best-interest analysis and does
not erase or outweigh the abuse that Jana suffered while in Mother’s care. None of
Mother’s arguments undermine the fact that legally and factually sufficient evidence
supports the endangering-environment ground. See In re B.R., Nos. 01-13-00023-CV,
01-13-00024-CV, 2013 WL 3243391, at *6 (Tex. App.—Houston [1st Dist.] June 25,
2013, no pet.) (mem. op.) (holding evidence sufficient to support endangering-
environment ground when parents were the child’s sole caretakers and child suffered
multiple nonaccidental injuries).
In the section of Mother’s brief that addresses the endangering-conduct
ground, she contends that the Department relied on Dallas County referrals to
demonstrate a course of conduct despite that all but one of the referrals were ruled
out and that one was ruled “unable to determine.” Mother argues that there was only
one referral in Tarrant County that was ruled “reason to believe” and that this does
not constitute a course of conduct. The Department responded as follows:
[T]he reason[-]to[-]believe standard is not the standard used to
substantiate termination under Subsection (E); rather, under Subsection
(E)[,] the trial court is required to make a determination whether
sufficient evidence exists that the endangerment of the child’s physical
well-being was the direct result of the parent’s conduct, including acts,
55
omissions, or failures to act. In re R.W., 129 S.W.3d 732, 738 (Tex.
App.—Fort Worth 2004, pet. denied). Moreover, when circumstantial
evidence implicates a parent as abusing her child and that parent is the
sole caregiver for a child[,] and there is also evidence that the child did
not sustain all [her] injuries at one time, there is sufficient evidence to
establish a course of conduct on behalf of the parent that has
endangered the child’s physical and emotional well-being. See . . . B.R.,
. . . 2013 WL 3243391, at *6; see also . . . J.P.B., 180 S.W.3d at 574.
We agree with the standard set out by the Department. Using that standard, the
record reflects that there was sufficient evidence showing that Mother had physically
abused Jana on more than one occasion.
Robles testified about the injuries she saw on Jana during the six months that
she babysat her in 2017; those injuries included severe bruising on both of Jana’s ears,
bruises on one of Jana’s legs, and a red mark on Jana’s face. In April 2019, Johnson
saw bruises and marks on Jana’s back that looked like she had been hit with a switch
or an object; Jana also had bruises on her head, leg, and elbow on that same date. In
July 2019, when Castillo met with Mother and Jana, Jana had a bruise on her right
cheek. Mother explained that Jana had sustained the bruise when she had hit her face
on the door as they were running from Kroger, but Castillo was never able to
substantiate Mother’s explanation. In August 2019, Jana appeared at the child-care
facility in Arlington first with bruises on her ear and bite marks on her back and
several days later with what appeared to be bite marks on her bottom and a Band-Aid
on her cheek that was covering a bruise that appeared to be a bite mark. The trial
court was the sole judge of the witnesses’ credibility and was free to believe the
56
testimony of Castillo and the child-care workers and to disbelieve Mother’s
explanations. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
Although Mother points to places in the record showing that Jana engaged in
self-harming and aggressive behavior while in the Department’s care, it does not
follow that the injuries detailed above were caused by self-harming. As Dr. Coffman
explained, children do not typically get bruising on their ears from falls or self-
harming. Moreover, self-harming could not explain the bite marks on Jana’s back,
bottom, and cheek.
Mother further argues in the endangering-conduct section of her brief that if
the trial court’s finding was based on the forensic interview, it is problematic because
Jana was only three years old at the time of the interview, the forensic interviewer had
limited experience interviewing children of that age, Jana was fidgety and wanted to
leave the room and go play, and Jana’s only accusation was “that she was ‘whooped’
for having a potty accident[] and that her mother and someone at daycare [had]
scratched her back.” Mother downplays the multiple accusations that Jana made
during the forensic interview, including that Mother had whooped Jana with her hand
and a purple spoon, had thrown her, had hit her forehead, had kicked her, and had
scratched her back. To the extent that Jana’s forensic interview also included an
outcry against her teachers for scratching her back and against CCMC for hurting her
cheek, the trial court was the sole judge of credibility and was free to believe parts of
Jana’s outcry and to disbelieve others.
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Applying the appropriate standards of review, we hold that the evidence is
legally and factually sufficient to support the trial court’s findings that Mother engaged
in conduct or knowingly placed Jana with persons who had engaged in conduct that
endangered the physical or emotional well-being of Jana and knowingly placed or
knowingly allowed Jana to remain in conditions or surroundings that endangered her
physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E);
H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573; L.L.F., 2012 WL 2923291, at
*16 (holding evidence legally and factually sufficient to support (D) and (E) findings
based on, among other things, mother’s untreated mental-health issues and aggressive
behavior). We overrule Mother’s first and third issues.
C. Best-Interest Ground
1. Law
To determine whether evidence is sufficient to support a best-interest finding,
we review the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Evidence
probative of a child’s best interest may be the same evidence that is probative of a
subsection (b)(1) ground. Id. at 249; C.H., 89 S.W.3d at 28. In making our
determination, we must employ a strong presumption that keeping a child with a
parent serves the child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).
We also consider the evidence in light of nonexclusive factors that the trier of fact
may apply in determining the child’s best interest: (A) the child’s desires; (B) the
child’s emotional and physical needs, now and in the future; (C) the emotional and
58
physical danger to the child now and in the future; (D) the parental abilities of the
individuals seeking custody; (E) the programs available to assist these individuals to
promote the child’s best interest; (F) the plans for the child by these individuals or by
the agency seeking custody; (G) the stability of the home or proposed placement;
(H) the parent’s acts or omissions indicating that the existing parent–child relationship
is not a proper one; and (I) any excuse for the parent’s 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” (footnote omitted)); E.N.C., 384 S.W.3d at 807. These factors are not
exhaustive, and some listed factors may not apply to some cases. C.H., 89 S.W.3d at
27. Furthermore, undisputed evidence of just one factor may be sufficient to support
a finding that termination is in the child’s best interest. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a finding. Id.
2. Analysis27
Mother argues that “the evidence in this case demonstrated that [she] and
[Jana] had a loving bond[] and that [Mother] went above and beyond to try to attend
classes and therapy to ensure [that] she had the skills and the mental and emotional
strength to be an appropriate parent for [Jana].” Mother then discounts the
27
Mother’s best-interest argument in her brief consists of only one and a half
pages; it does not mention the Holley factors, nor does it contain the required analysis
that weighs each of the factors. We do not condone taking such shortcuts when
challenging the best-interest finding.
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Department’s evidence, arguing that “[t]he testimony from the Department was
composed of a lot of conjecture and speculation on this issue.” This is not a proper
best-interest analysis. Instead, we weigh each of the Holley factors set forth above and
conclude that they weigh in favor of termination of Mother’s parental rights to Jana.
a. Jana’s Desires
With regard to Jana’s desires, she did not testify at trial. According to Mother,
five-year-old Jana said during the last visit before trial that she wanted to go home
with Mother. The record contains a stipulation that there was a bond between
Mother and Jana, and the notes from the visits showed that Jana enjoyed visiting with
Mother. The trial court was entitled to find that this factor weighed against
terminating Mother’s parental rights to Jana.
b. Emotional and Physical Needs
With regard to Jana’s emotional needs now and in the future, the record
reflects that Jana needs a caregiver who will be patient with her and will help work
with her on her behavior; who understands her past and what she has been through;
and who gives her the care, nurturing, and love that she needs to thrive. Mother had
not demonstrated her ability to be patient with Jana, other than during the monitored
visits. Instead, the record showed that Mother had whooped and/or hit Jana when
she had potty accidents and had “potty shamed” her at Buckner by having her carry a
plastic potty outside. With regard to Jana’s physical needs, Mother testified that she
had a job and a home, but Mother had not disclosed her address to allow the
60
Department to evaluate the home and did not testify regarding her salary. The trial
court was entitled to find that this factor weighed in favor of terminating Mother’s
parental rights to Jana.
c. Emotional and Physical Dangers
With regard to the emotional and physical dangers to Jana now and in the
future, the record demonstrates that Mother scored as high probability for potentially
abusing a child, and Mother’s support system is virtually unchanged from when the
abuse occurred. Additionally, the events triggering the abuse—Jana’s potty
accidents—were still occurring at the time of the termination trial. Jana was thus still
in danger of receiving “whoopings” that resulted in severe bruising and of being
bitten by Mother. Mother had not completed counseling to address her anger issues.
The ad litem had said that “until the mother addresses her issues, the child is still in
danger”; Dr. Charway could not say with confidence that Mother’s history of
aggression and mental-health diagnoses would not impact her ability to be a safe
parent; and Dr. Otero said that Mother needed more counseling before she could
safely parent Jana. Only Ledbetter—Mother’s trauma therapist—opined that Mother
had made enough progress to safely parent Jana. The trial court was entitled to find
that this factor weighed in favor of terminating Mother’s parental rights to Jana.
d. Parental Abilities
With regard to Mother’s parental abilities, the record demonstrates that Mother
had completed several parenting classes and that her interactions with Jana at the
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weekly visits went well. But the record also demonstrated that during the visits,
Mother put on a show to post on social media, and there were concerns that Mother
manipulated Jana at the visits, instructing her not to obey her foster parents.
Additionally, Mother’s inappropriate and unacceptable disciplinary techniques—
biting Jana and “whooping” her when she had potty accidents—had brought Jana
into the Department’s care, and Mother failed to acknowledge the abuse. Moreover,
Mother had not completed counseling to address her anger and unmedicated mental-
health issues. The trial court was entitled to find that this factor weighed in favor of
terminating Mother’s parental rights to Jana.
e. Programs Available to Assist Mother
With regard to the programs available to assist Mother to promote Jana’s best
interest, the record demonstrates that Mother did not fully take advantage of the
services on her plan. Mother did not visit with Jana during January 2020 and part of
February 2020, and Mother did not complete her counseling services. The trial court
was entitled to find that this factor weighed in favor of terminating Mother’s parental
rights to Jana.
f. Plans for Jana and Stability of the Home or the
Proposed Placement
With regard to the plans for Jana by the individuals seeking custody and the
stability of the home or proposed placement, Mother testified that she had set up a
bedroom for Jana and admitted into evidence a photograph of the alleged bedroom.
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Mother said that if Jana were returned to her, she would contact a babysitter to watch
her on the days when she was required to go into the office for her job. Jana had
been in several foster homes during the pendency of the case, including one in which
she had been sexually abused. The Department planned for Jana to be adopted by
her half brother’s parents. This factor weighs neither for nor against terminating
Mother’s parental rights to Jana.
g. Acts or Omissions Indicating that the Parent–Child
Relationship Is Improper
With regard to Mother’s acts or omissions that may indicate the existing
parent–child relationship is not a proper one, the analysis set forth above—which
reflects that Mother physically abused Jana; that Mother did not take responsibility for
the abuse, despite being the sole caretaker of Jana; and that Mother did not
successfully complete counseling—reflects that the existing parent–child relationship
between Mother and Jana is not a proper parent–child relationship. The trial court
was entitled to find that this factor weighed in favor of terminating Mother’s parental
rights to Jana.
h. Any Excuse for the Acts or Omissions
As for any excuse for the acts or omissions of the parent, Mother did not admit
that she had abused Jana, but Mother admitted that she had made mistakes in
parenting in the past and said that she could see that there were a lot of things that
she could have done differently during the case or even prior to the case to avoid
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being in trial. Mother said that she had learned that she needed to nurture Jana
whenever she has meltdowns or behavioral issues; that she needed to be age
appropriate with Jana regarding how she talked to her, not talking like an adult; and
that she needed to get on Jana’s level and to allow her to make mistakes. This factor
weighs neither for nor against terminating Mother’s parental rights to Jana.
i. Holley Factors Weigh in Favor of Termination
Reviewing all the evidence with appropriate deference to the factfinder, we
hold that the trial court could have reasonably formed a firm conviction or belief that
termination of the parent–child relationship between Mother and Jana was in Jana’s
best interest, and we therefore hold that the evidence is legally and factually sufficient
to support the trial court’s best-interest finding. See Tex. Fam. Code Ann.
§ 161.001(b)(2); Jordan, 325 S.W.3d at 733 (holding evidence legally and factually
sufficient to support the trial court’s best-interest finding when most of the best-
interest factors weighed in favor of termination). We overrule Mother’s fourth issue.
IV. Ineffective-Assistance Challenge
In her fifth issue, Mother argues that trial counsel provided ineffective
assistance to her by failing to object to evidence that “was of marginal, if any,
relevance to the termination grounds” and that “was unfairly prejudicial” to Mother.
Mother contends that the Department spent the majority of its case developing the
issues of Mother’s childhood and her past, attempting to attack her credibility and
paint her as not only suffering from an untreated mental-health condition but also as
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someone who was operating under a delusional state of mind. In her brief, Mother
summarizes testimony that encompasses eight issues from her childhood and past and
then argues that trial counsel should have timely objected to such testimony.
While an indigent parent’s statutory right to counsel in a termination-of-
parental-rights case filed by the State includes the right to effective assistance of
counsel, in order to satisfy her burden of showing that trial counsel was ineffective,
Mother must show both (1) that trial counsel’s performance was deficient and (2) that
the deficient performance by trial counsel prejudiced her case. See In re M.S., 115
S.W.3d 534, 544–45 (Tex. 2003) (“Under Strickland, the defendant, to establish an
ineffective assistance claim, must successfully show both prongs of the inquiry.”).
With respect to whether counsel’s performance in a particular case is deficient,
we must take into account all of the circumstances surrounding the case and must
primarily focus on whether counsel performed in a “reasonably effective” manner. Id.
at 545. In this process, we must give great deference to counsel’s performance,
indulging a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance, including the possibility that counsel’s actions are
strategic. Id. It is only when the conduct was so outrageous that no competent
attorney would have engaged in it that the challenged conduct will constitute
ineffective assistance. Id. We may not speculate in order to find trial counsel
ineffective when the record is silent regarding counsel’s reasons for her actions. In re
F.L.H., No. 04-17-00425-CV, 2017 WL 6597829, at *15 (Tex. App.—San Antonio
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Dec. 27, 2017, pet. denied) (mem. op.) (quoting Walker v. Tex. Dep’t of Fam. &
Protective Servs., 312 S.W.3d 608, 623 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied)).
Here, we have nothing in the record and may not speculate to explain why trial
counsel did not object to the complained-of testimony. Due to the silent record, we
cannot say that Mother’s trial counsel committed ineffective assistance with regard to
failing to object to the complained-of testimony. See In re D.I., No. 12-16-00159-CV,
2016 WL 6876503, at *5 (Tex. App.—Tyler Nov. 22, 2016, no pet.) (mem. op.)
(“When, as here, the record fails to show why counsel did not object to the ICWA
evidence, we cannot conclude that counsel’s performance was deficient.”); see also In re
G.H., No. 12-16-00327-CV, 2017 WL 2464694, at *3 (Tex. App.—Tyler June 7, 2017,
pet. denied) (mem. op.) (holding that counsel was not ineffective when the record
failed to show why counsel did not strike a juror, object to the Department’s jury
argument, provide additional witnesses, elicit testimony, or provide substantive
closing argument). And because Mother has failed to establish one of the two
Strickland prongs, we overrule Mother’s fifth issue.
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V. Conclusion
Having overruled Mother’s first, third, fourth, and fifth issues, which are
dispositive of this appeal, we affirm the trial court’s judgment terminating Mother’s
parental rights to Jana.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: December 30, 2021
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