in the Interest of K.L. and C.L. v. Texas Department of Family and Protective Services ( 2022 )

Affirmed and Memorandum Opinion filed December 22, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00584-CV
IN THE INTEREST OF K.L. AND C.L., CHILDREN
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2020-01646J
MEMORANDUM OPINION
The trial court terminated Mother’s parental rights to her children, Kate and
Caleb,1 on three predicate grounds, including endangerment by conduct. See Tex.
Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). The trial court also found that
termination of Mother’s parental rights was in the children’s best interest and
appointed the Department of Family and Protective Services (the “Department”) as
the children’s sole managing conservator.
1
We use pseudonyms to refer to the children, parents, and other family members
involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
On appeal, Mother challenges the sufficiency of the evidence supporting the
trial court’s predicate and best-interest findings. Mother also challenges the trial
court’s failure to appoint her as the children’s possessory conservator. Because we
conclude sufficient evidence supports the trial court’s endangering conduct and
best-interest findings, as well as its failure to appoint Mother as a possessory
conservator, we affirm the trial court’s final order.
BACKGROUND
In August 2020, the Department filed a petition requesting that the trial court
order Mother and Father to participate in a family service plan. Approximately 15
months later, the Department filed a “First Amended Petition for Protection of a
Child for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship,” requesting that the trial court (1) terminate Mother’s and Father’s
parental rights with respect to Kate and Caleb, and (2) appoint the Department as
the children’s sole managing conservator. The parties proceeded to a bench trial in
May 2022.
I. Evidence at Trial
Nine witnesses testified at the bench trial; we summarize the relevant
portions of their testimony below.
Symone Jones
Jones is employed by the Department and worked as “the family-based
safety services worker for the majority of [Mother’s and Father’s] case.” Jones
said the Department received an intake report in June 2019, which alleged bruising
on Mother’s oldest son.2 The Department recommended that Mother and Father
2
The Department has not filed suit to terminate Mother’s parental rights with respect to
her oldest son.
2
complete a family service plan. At the time this investigation began, Kate was two
years old and Caleb was 20 months.
Jones said that Mother had a “substantial CPS[3] history” that began years
before the underlying June 2019 investigation. According to Jones, Mother has
been involved in six CPS investigations; the first investigation concerned Mother’s
oldest son, who was born in 2014. Discussing this investigation, Jones said
Mother tested positive for methamphetamines while she was pregnant and her son
also tested positive for methamphetamines when he was born. Jones said the
investigation was not completed because Mother “was moving around during that
time.” According to Jones, Mother “would move to different counties and homes
to get another CPS worker and kind of get lost in the midst of it.” Another
investigation was initiated several months later, when it was alleged that Mother
was not providing necessary medical care to her oldest son.
Jones said Mother’s next CPS investigation was initiated in May 2017 and
culminated in Mother’s oldest son and Kate being removed from her care.
According to Jones, Mother was pregnant with Caleb at this time and the
Department was concerned that Mother again was using methamphetamines.
Jones said Mother and Father completed their prescribed family service plan and
the children were returned to them in September 2018.
Jones said the fourth CPS investigation began in October 2017, when Caleb
was born. According to Jones, Mother admitted using methamphetamines while
pregnant with Caleb. The fifth CPS investigation was initiated in December 2018,
shortly after Mother’s oldest son and Kate were returned to her care. Jones said
the investigation began after Father was videotaped using a controlled substance
3
“CPS” refers to Child Protective Services.
3
while Mother’s oldest son was in the room. Jones agreed that Mother “should have
known” that Father was using drugs while her oldest son was staying with him.
After the current investigation was initiated in June 2019, Jones said Mother
and Father “were slightly engaged in their services, but they weren’t making their
appointments regularly.” Jones said Mother was arrested in Oklahoma in
September 2019, for larceny, assault, and trespassing. Jones agreed that Kate and
Caleb were in Mother’s care at this time; Jones did not know where the children
were when Mother was arrested.
Jones said the Department continued to work with Mother to complete her
family service plan after her Oklahoma arrest, but Mother again was arrested in
November 2019. Describing the arrest, Jones testified:
What I remember about this case is that it was posted on Facebook
Live and Mom was arrested. They found drugs, a loaded gun. In the
video, there was a car seat noted in the vehicle, which brought
concern because we didn’t know where the children were at that time.
Jones said Mother was arrested and charged with possession with intent to deliver
methamphetamines. Admitted into evidence was an “Order of Deferred
Adjudication,” which states that Mother accepted a plea bargain mandating an
eight-year probation and a $3,000 fine. In addition to these two offenses, Jones
said Mother “has [an] extensive criminal history involving theft offenses”;
documents admitted into evidence showed Mother has at least eight theft
convictions.
Describing other incidents, Jones said Mother traveled with the children “in
the middle of the night” to Mississippi to be with her husband, James Yeager, in
January 2020. According to Jones, this was concerning because Mother “was not
supposed to be alone with the children” and “was not supposed to leave the state
without notifying her caseworker.” Jones said the Department also had concerns
4
about Yeager, particularly his “extensive criminal history” which included
possession of a controlled substance and theft.
A drug test from May 2020 was admitted into evidence, which showed that
Mother tested positive for amphetamines and methamphetamines. Jones said the
Department received another intake report during this time, which alleged
domestic violence between Mother and Yeager.
A second drug test from June 2020 was admitted into evidence and showed
that Mother again tested positive for amphetamines and methamphetamines.
Reviewing this test, Jones agreed that it showed Mother’s drug levels “ha[d]
actually increased.” According to Jones, the Department implemented a Parental
Child Safety Placement that required the children to live with a family member.
However, Mother “removed the children and went to Huntsville.” Jones said she
went to pick up the children in Huntsville and returned them to the Parental Child
Safety Placement.
Jones testified that the Department sought temporary managing
conservatorship of Kate and Caleb in August 2020, noting “issues and instability”
that had worsened. Jones said the children were placed with their Foster Parents.
Jones testified that she was familiar with the Foster Parents. According to
Jones, Mother’s oldest son and Kate had previously been placed with the Foster
Parents in May 2017 when they first were removed from Mother’s care. But even
after the children were returned to Mother’s care, Jones stated:
that Mom would need time and needed breaks and that she would
drop the children off at [the Foster Parents’] home, and so they would
care for the children. They were emergency contacts when it came to
day care. They were very heavily involved in helping the children.
Jones said Mother would leave the children with the Foster Parents “at least two to
5
three times a month.” Jones agreed that it is “unusual” for a parent “to continue to
have a previous foster parent essentially parent their children.”
Jones testified that the Foster Parents have “provided a safe and stable
environment” for Kate and Caleb. Jones said the Department has not had any
concerns about the care provided by the Foster Parents. According to Jones,
Mother has not shown that she can provide a safe and stable environment for Kate
and Caleb. Jones ultimately opined that the children “would be in grave danger if
they were returned back to [Mother] today.”
Cheryl Sanders
Sanders is a Department conservatorship worker and has been involved with
Mother’s case since its initiation. Noting that Mother has had “at least five”
criminal cases, Sanders agreed that Mother’s “criminal history is quite
concerning.” Sanders also reviewed evidence showing that Mother “currently has
two active warrants in Harris County.” When asked about the risks these warrants
presented to Kate and Caleb, Sanders testified that Mother:
could be arrested at any time and the children, if they were in her
custody at that time, they will be taken — well, CPS will be called
and they’ll be back in custody. Again, not showing stability.
According to Sanders, Mother also had an open warrant in connection with her
Oklahoma arrest that Mother took care of shortly before trial.
Sanders said Mother tested positive for methamphetamines in November
2020, shortly after the children had been removed from her care. Sanders agreed
that this result showed that Mother was not taking the family service plan
“seriously.”
Describing the current family service plan, Sanders said Mother has
completed most of its recommended services. Sanders testified that Mother
6
completed her substance abuse counseling and, throughout all of 2021, her drug
tests were negative. Sanders said Mother also completed her individual
counseling. But Sanders noted that Mother completed these services “at the very
last minute,” which did not indicate someone “who is serious about their sobriety
and maintaining their sobriety.” Rather, Sanders said this showed that Mother was
repeating the “same pattern” where she would “do the bare minimum just to get
CPS out of [her] li[fe] and the children returned.” Continuing on, Sanders
testified:
The pattern that I’ve seen is that Mom will hurry up and finish the
process and check the boxes, get the children back, and then,
eventually, possibly relapse and get back to regular programming.
Sanders also said Mother did not satisfy the service plan’s requirement to provide
evidence of stable housing. Sanders said Mother gave the Department a copy of
her current lease agreement; however, the Department was unable to confirm the
lease with the property’s landlord. According to Sanders, “the gentleman who
signed off as the landlord or owner of the property is not the said owner of the
property.” Rather, the person who signed the lease agreement as the property’s
landlord was a person with a “criminal history of forging documents.”
Sanders testified that Mother has not shown that she can provide a safe and
stable environment for Kate and Caleb. Sanders said Mother has not expressed
any plans for the children’s futures nor has she expressed any hopes and dreams
for them. Sanders agreed that returning to the children to Mother “would be
detrimental to their physical and emotional well-being.”
In contrast, Sanders said the Foster Parents can provide a safe and stable
environment for Kate and Caleb. Sanders said she has made numerous announced
and unannounced visits to the Foster Parents and, each time, the children have been
7
happy and well cared for. According to Sanders, the Foster Parents also have
expressed hopes and dreams for the children’s futures. Sanders testified that the
children refer to the Foster Parents as “mom” and “dad” and “seem to love where
they are.” Sanders agreed that it would be in Kate’s and Caleb’s best interest to
have Mother’s parental rights terminated. Termination of Mother’s parental rights,
Sanders said, would “give[] the children a chance at a better life” with the Foster
Parents.
Mother
According to Mother, she has completed her family service plan. Mother
said she was unaware of the issues the Department had confirming her lease.
Mother said she did not personally know the landlord and “actually found the place
in a newspaper.” Mother said she was not aware that she had any open warrants in
Harris County.
Mother said she is currently employed at the Holiday Inn and generally
works from 9:00 a.m. to 3:00 p.m. To maintain her sobriety, Mother said she
works with her sponsor daily, writes in her journal, and attends meetings at least
once a week. When asked about her “support system,” Mother listed her “old
boss,” her grandma, her cousin, and her sponsor. Mother said all of these
individuals were willing to assist her in caring for her children.
Mother agreed that the Foster Parents continued to be involved in her
children’s lives after the children were removed and returned to her care in 2017.
Mother said the Foster Parents “had a bond” with the children and that she did not
want to totally remove them from the children’s lives.
Mother acknowledged that she had prior CPS cases “that have been opened
and closed.” Mother said the present case was different because she “actually
8
[has] a sponsor and [has] actually been working an honest program.” Mother said
she has been sober for approximately one-and-a-half years and has “learned
different ways to cope with stress and stuff like that so that I do not relapse again.”
Mother said she would be able to provide a safe home environment for Kate
and Caleb if they were returned to her. Mother said she planned to enroll the
children in the Livingston school district. If the children needed after-school care,
Mother said she could arrange care with her grandmother or a friend. Mother said
she currently rents a three-bedroom house with plenty of room for the children.
Wilda Baptiste
Baptiste is Mother’s sponsor and has worked with Mother for approximately
two years. Baptiste said she is in “constant contact” with Mother and
“communicate[s] with her about everything because being a sponsor, I have to
know what’s going on with her, as far as her life in general.” Baptiste said she
does not have any concerns about Mother maintaining her sobriety and said
Mother is “doing a very excellent job.” Baptiste said she did not have any
concerns about Kate and Caleb being returned to Mother’s care because Mother is
“going to do whatever she ha[s] to do for her kids and to take care — take care of
her kids and provide for her kids.”
Zachariah Robertson
Robertson previously hired Mother at La Quinta Inn & Suites, where Mother
worked before her current job at the Holiday Inn. Robertson said he helped
Mother obtain her current Holiday Inn position because it was “more financially
stable than what [La Quinta] could offer at the moment.”
Robertson said he never had any issues with Mother while she worked at La
Quinta. According to Robertson, Mother “was one of the few people that I’ve ever
9
seen that actually kept up with me to the degree of work that I put in.” Robertson
said he never had any issues with Mother showing up late or missing work.
Robertson said Mother worked in many different parts of the hotel, including the
kitchen, housekeeping, and front desk.
Kelli Knight
Knight is Mother’s older sister. Knight lives in Mississippi and usually
visits Mother “three or four times a year.” However, Knight said she recently had
a baby and had not been able to visit as often as she used to. But nonetheless,
Knight testified that she is “available as a support system or as a resource for
[Mother] in her time of need.”
Knight said she believed that Mother is capable of caring for Kate and
Caleb. Knight said Mother is “completely different than she was” and noted that
Mother has been working every day and completing her counseling. But Knight
acknowledged that “[i]t has been a pattern for [Mother] to use, get clean, and then
use again.”
Foster Mother Patricia
Patricia said she first became involved with Mother in July 2017, when
Mother’s oldest son and Kate were placed in the care of her and her husband.
Patricia said the children were returned to Mother in September 2018. After the
children were returned to Mother, Patricia said she and Mother continued to “talk
quite often.” Patricia said she “started watching the kids again” in October 2018.
When asked why Mother would drop the children off, Patricia said:
It was a mixture of things. Sometimes it would be — [Mother] would
say that she was stressed, she needed a break. Sometimes it would be
. . . me calling and just checking on her to see how she’s doing and it
would turn into, you know, seeing [Kate] that weekend and picking
her up that weekend.
10
Sometimes — it was mostly we’d pick [Kate] up Friday and then by
Sunday, [Mother] would come and pick [Kate] up or sometimes it
would extend further. There was several times where I would actually
have to call in to work on, like, a Monday and I would have to find a
babysitter for [Kate] because we would have her until, like, Tuesday
or Wednesday.
Patricia said it got to the point where she and her husband were caring for the
children “almost every weekend.” But at other times, Mother would just “break
communication” and they would not hear from her for weeks.
Patricia recalled several concerning incidents that took place while the
children were living with Mother. In January 2019, Patricia said Mother called and
said she took Kate to the emergency room. According to Patricia, Mother said
Kate “had opened a bottle of thyroid pills and had possibly ingested 30 pills” and
“had to have her stomach pumped.” Patricia said Kate was two years old when
this incident occurred.
A few days later, Patricia recalled receiving another call from Mother
informing her that Caleb “had ingested [a] whole bottle of clove oil.” Caleb’s liver
shut down and he was hospitalized for approximately a week. Caleb was one year
old when this occurred.
Patricia said Caleb again was hospitalized in May 2020 after he cut his foot
on a casserole dish that had fallen on the ground; the injury required 12 stitches.
According to Patricia, Kate told her “that Mommy got mad and threw the dish and
then [Caleb] had cut his foot.”
Patricia recalled a separate incident in June 2020 when Mother failed to pick
Kate and Caleb up from day care. According to Patricia, the day care called her at
8:30 p.m. and said they had been unable to get in contact with Mother. Patricia
picked up the children from day care and informed the Department’s caseworker
11
about what had occurred.
Patricia said Kate and Caleb were placed with her and her husband in
August 2020, after the Department filed the underlying termination proceedings.
The children underwent a “wellness check” and it was determined that Caleb was
“behind on a lot of his vaccines and had to get vaccinated.” Patricia also noticed
that Caleb had “a little ball sticking out of his stomach” and appeared to be in pain
when he “would stretch too high.”
After taking Caleb to the pediatrician, Patricia said she was told he had an
epigastric hernia. The pediatrician told Patricia the hernia previously had been
noted in Caleb’s medical records in March 2018 but had not been treated. Patricia
said Caleb underwent surgery in February 2021 to repair the hernia.
Patricia said she also was concerned that Caleb was having repeated ear
infections. After taking Caleb to the pediatrician, Patricia said she was told that
Caleb previously had 11 ear infections while he was in Mother’s care. Patricia said
she scheduled ear tube surgery for Caleb.
Before Caleb got ear tubes, Patricia recalled that Mother “repeatedly sa[id]
that she thought he was autistic” because he “was really bad and wouldn’t listen.”
But after Caleb got ear tubes, Patricia said “it was like night and day” and Caleb
started thriving. Instead of being autistic, Patricia said Caleb “just couldn’t hear.”
Turning to Kate, Patricia said she initially was “throwing a lot of tantrums”
after she was removed from Mother’s care. Patricia noted that Kate has been
enrolled in speech, occupational, and social therapy, and has seen a lot of progress.
Patricia recalled that Kate was having dental issues when she was removed from
Mother’s care and had 6-8 cavities. Patricia also said that Kate initially had “sleep
issues” and would stay up “until about 2:00 or 3:00 in the morning.”
12
Patricia said she was aware that Mother had a criminal history, specifically,
“a lot of theft cases.” Patricia said Mother would shoplift and “then give it to
someone to sell.” Patricia also knew that Mother was arrested in November 2019
for a drug offense.
Patricia said she and her husband intended to adopt Kate and Caleb if
Mother’s parental rights were terminated. Patricia said the children wanted to stay
with her and her husband and rarely talked about Mother. At the time of trial,
Patricia said Kate (who was then five years old) had lived with her and her
husband for almost three years total. Patricia said Caleb (who was then four years
old) had lived with her and her husband for 20 months.
For the children’s short-term goals, Patricia said she wants to enroll them in
sports; Kate expressed interest in dance and gymnastics and Caleb wanted to play
football.
Michaella Maniscalo
Maniscalo works for Child Advocates and has been involved in the case
since July 2021. According to Maniscalo, she represents Kate’s and Caleb’s best
interest.
Since she began working with the children, Maniscalo noted that she has
seen significant progress. With respect to Kate, Maniscalo testified that she has
“been more responsive to redirection than she used to be and more quick[] to say
sorry to a sibling that she might be getting in a short argument with.” Maniscalo
said Caleb has become more outgoing and talkative.
Maniscalo testified that she did not believe that Mother “has the parental
abilities to be able to parent the children” and noted Mother’s “criminal history and
drug abuse history.” Maniscalo said she also was concerned with Caleb’s prior
13
health issues, including the hernia that was diagnosed while he was in Mother’s
care and his repeated ear infections.
Maniscalo said that the Foster Parents can meet Kate’s and Caleb’s physical,
emotional, educational, and medical needs. Maniscalo said she had observed
“many” visits between the Foster Parents and the children and noted that the
children are bonded to the Foster Parents and feel safe in their environment.
II. The Trial Court’s Findings
The trial court signed a final order on June 9, 2022, terminating Mother’s
and Father’s parental rights with respect to Kate and Caleb.
In its order, the trial court found that termination of Mother’s parental rights
was in the children’s best interest and warranted under three subsections of section
161.001(b)(1) of the Texas Family Code: (D) (endangerment by environment), (E)
(endangerment by conduct), and (O) (failure to comply with a court ordered plan
for reunification with the child). See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(E), (O).
The trial court also appointed the Department as Kate’s and Caleb’s sole
managing conservator. Mother timely appealed.4
ANALYSIS
Mother raises five issues5 on appeal that challenge: (1) the sufficiency of the
4
Father did not file a notice of appeal in the underlying proceeding.
5
Specifically, Mother articulates her issues as follows: (1) “Whether the Evidence is
Factually Insufficient to Support Termination of Parental Rights Under 161.001(b)(1)(D)”;
(2) “Whether the Evidence is Factually Insufficient to Support Termination of Parental Rights
Under 161.001(b)(1)(E)”; (3) “Whether the Evidence is Legally and Factually Insufficient to
Support Termination of Parental Rights Under 161.001(b)(1)(O)”; (4) “Whether the Evidence is
Factually Insufficient to Support a Finding that Termination of Parental Rights is in the Best
Interest of the Children”; and (5) “Whether the Trial Court Abused its Discretion by Failing to
14
evidence supporting the trial court’s predicate findings under section 161.001(b)(1)
and best-interest finding; and (2) the trial court’s failure to appoint Mother as a
possessory conservator.
We begin with the applicable burdens of proof and standards of review
before turning to the issues raised on appeal.
I. Burdens of Proof and Standards of Review
Involuntary termination of parental rights is a serious matter that implicates
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). But although parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Given the fundamental liberty
interests at stake, “termination proceedings should be strictly scrutinized, and
involuntary termination statutes are strictly construed in favor of the parent.”
Holick, 685 S.W.2d at 20.
Parental rights may be terminated if clear and convincing evidence shows
(1) the parent committed an act described in section 161.001(b)(1) of the Texas
Family Code, and (2) termination is in the child’s best interest. See Tex. Fam.
Code Ann. § 161.001(b)(1), (2). “‘Clear and convincing evidence’ means the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” Id.§ 101.007.
This heightened burden of proof results in heightened standards of review
for evidentiary sufficiency. In re V.A., 598 S.W.3d 317, 327 (Tex. App.—Houston
[14th Dist.] 2020, pet. denied). For a legal sufficiency challenge, we consider all
Appoint Mother as a Possessory Conservator.”
15
the evidence in the light most favorable to the finding to determine whether a
reasonable fact finder could have formed a firm belief or conviction that its finding
was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the fact
finder resolved disputed facts in favor of its finding if a reasonable fact finder
could do so, and we disregard all controverting evidence a reasonable fact finder
could disbelieve. Id.For a factual sufficiency challenge, we consider and weigh all the evidence,
including disputed or conflicting evidence, to determine whether a reasonable fact
finder could have formed a firm belief or conviction that its finding was true. In re
C.H., 89 S.W.3d at 25. We examine whether disputed evidence is such that a
reasonable fact finder could not have resolved that dispute in favor of its finding.
Id.
The fact finder is the sole arbiter when assessing the credibility and
demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). “We may
not second-guess the fact finder’s resolution of a factual dispute by relying on
disputed evidence or evidence the fact finder ‘could easily have rejected as not
credible.’” In re V.A., 598 S.W.3d at 328 (quoting In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003)).
II. Predicate Termination Findings
In her first three issues, Mother asserts the evidence is factually insufficient
to support the trial court’s finding that termination was warranted under three
subsections of section 161.001(b)(1) of the Texas Family Code. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E), (O).
A. Governing Law
“To affirm a termination judgment on appeal, a court need uphold only one
16
termination ground — in addition to upholding a challenged best-interest finding
— even if the trial court based the termination on more than one ground.” In re
N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam). Predicate findings under
subsections (D) and (E), however, pose significant collateral consequences. See id.
at 234, 235 (discussing section 161.001(b)(1)(M), which provides that a court may
terminate a parent’s rights if it finds, by clear and convincing evidence, that the
parent has had his “parent-child relationship terminated with respect to another
child based on a finding that the parent’s conduct was in violation of Paragraph (D)
or (E)”). In light of these consequences, we are required to consider the
sufficiency of the evidence pursuant to subsections (D) and (E) when raised on
appeal. Id. at 235; see also, e.g., In re P.W., 579 S.W.3d 713, 721, 728 (Tex.
App.—Houston [14th Dist.] 2019, no pet.).
Our analysis begins with the trial court’s finding that termination is
warranted under subsection (E).
Subsection (E) authorizes termination if the parent “engaged in conduct or
knowingly placed the child with persons who engaged in conduct which endangers
the physical or emotional well-being of the child.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(E). In this context, “endanger” means “to expose to loss or injury;
to jeopardize.” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam); see
also In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). Endangerment encompasses “more than a threat of metaphysical injury or
the possible ill effects of a less-than-ideal family environment”; therefore, it is not
necessary that the conduct was directed at the child or that the child suffered actual
injury. In re M.C., 917 S.W.2d at 269.
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical and emotional well-being was the direct
17
result of the parent’s conduct, including acts, omissions, or failures to act. In re
S.R., 452 S.W.3d at 360. Although endangerment under this subsection often
involves physical endangerment, the statute does not require that the conduct be
directed at a child or that the child actually suffer physical injury; rather, the
specific danger to the child’s well-being may be inferred from the parent’s
misconduct alone. Id. “As a general rule, subjecting children to a life of
uncertainty and instability endangers the children’s physical and emotional well-
being.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
But termination under subsection (E) must be based on more than a single
act or omission — “the statute requires a voluntary, deliberate, and conscious
course of conduct by the parent.” In re V.A., 598 S.W.3d at 331; In re S.R., 452
S.W.3d at 360. For this inquiry, we may consider conduct occurring both before
and after the child was removed from the parent’s care. In re S.R., 452 S.W.3d at
360. We also may consider actions and inactions occurring both before and after
the child’s birth. In re V.A., 598 S.W.3d at 331.
Evidence of criminal conduct, convictions, imprisonment, and their effects
on a parent’s life and ability to parent may establish an endangering course of
conduct. In re S.R., 452 S.W.3d at 360-61. “Routinely subjecting children to the
probability that they will be left alone because their parent is in jail endangers
children’s physical and emotional well-being.” In re J.B., No. 14-20-00766-CV,
2021 WL 1683942, at *5 (Tex. App.—Houston [14th Dist.] Apr. 29, 2021, pet.
denied) (mem. op.).
B. Application
Under the applicable standards of review, we conclude the evidence is
factually sufficient to support the trial court’s finding that Mother endangered Kate
and Caleb as described in subsection (E).
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First, the evidence shows that Mother has a lengthy history of substance
abuse. See In re J.J.L., 578 S.W.3d 601, 611 (Tex. App.—Houston [14th Dist.]
2019, no pet.) (“A parent’s continuing substance abuse can qualify as a voluntary,
deliberate, and conscious course of conduct endangering the child’s well-being.”).
Testifying at trial, Jones said Mother initially came to the Department’s attention in
2014; during the ensuing investigation, Mother tested positive for
methamphetamines while pregnant with her oldest son and her son tested positive
for methamphetamines when he was born. Jones said the Department initiated its
fourth investigation in October 2017, when Caleb was born. According to Jones,
Mother admitted to also using methamphetamines during her pregnancy with
Caleb. See In re M.J., No. 14-20-00449-CV, 2020 WL 7038526, at *6 (Tex.
App.—Houston [14th Dist.] Dec. 1, 2020, no pet.) (mem. op.) (“a mother’s drug
abuse during pregnancy is particularly endangering to an unborn child’s physical
well-being”).
Jones also testified about Mother’s November 2019 arrest, during which the
responding officers found “drugs [and] a loaded gun” in Mother’s car. Mother was
charged with possession with intent to deliver methamphetamines; she accepted a
plea bargain mandating an eight-year probation and a $3,000 fine.
In her appellate brief, Mother points out that she has not had a positive drug
test since April 2021 and has been working diligently with her sponsor. But this
evidence alone does not fully discount the other evidence regarding Mother’s
history of substance abuse and its effects on the care she has provided her children.
See In re Z.H., No. 14-19-00061-CV, 2019 WL 2632015, at *4 (Tex. App.—
Houston [14th Dist.] June 27, 2019, no pet.) (mem. op.) (“evidence of improved
conduct, especially of short-duration, does not conclusively negate the probative
value of a long history of drug use”). Moreover, Sanders testified that Mother has
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had a “pattern” of waiting until “the very last minute” to complete her services.
“Eventually,” Sanders said, Mother would “possibly relapse and get back to
regular programming.” Mother’s sister also acknowledged that “[i]t has been a
pattern for [Mother] to use, get clean, and then use again.” See also In re M.G.D.,
108 S.W.3d 508, 514 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)
(“evidence of a recent turnaround should be determinative only if it is reasonable
to conclude that rehabilitation, once begun, will surely continue”).
Second, evidence was presented showing Mother’s history of criminal
conduct. See In re S.R., 452 S.W.3d at 360-61. In addition to the November 2019
arrest for possession with intent to deliver methamphetamines, Jones said Mother
was arrested in Oklahoma in June 2019 for larceny, assault, and trespassing.
According to Sanders, Mother had an open warrant in connection with this offense
that she had neglected to take care of until shortly before trial. Sanders said that, at
the time of trial, Mother had two active warrants in Harris County.
Jones also testified that Mother “has [an] extensive criminal history
involving theft offenses” and documents admitted into evidence showed that
Mother has at least eight theft convictions. According to Patricia, Mother was
involved in a scheme where she would shoplift goods and give them to someone
else to sell.
Third, the evidence shows that both Kate and Caleb sustained serious
injuries while in Mother’s care. See In re J.D., 436 S.W.3d 105, 114-15 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (history of repeated injuries to a child
may support a finding that the child’s caregiver allowed the child to remain in
surroundings that endangered his physical well-being). According to Patricia, Kate
was hospitalized in January 2019 when she was two years old. Patricia said
Mother informed her that Kate “had opened a bottle of thyroid pills and had
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possibly ingested 30 pills” and “had to have her stomach pumped.” A few days
later, one-year-old Caleb was hospitalized after Mother said he “had ingested [a]
whole bottle of clove oil.” Caleb’s liver shut down and he was hospitalized for
approximately one week. Caleb again was hospitalized in May 2020 after he cut
his foot on a casserole dish that had fallen on the ground. According to Patricia,
Kate relayed that this incident occurred when “Mommy got mad and threw the
dish.”
Fourth, the evidence shows that Kate and Caleb were dealing with several
health issues at the time they were placed in the Foster Parents’ care. See In re
S.B., No. 12-12-00402-CV, 2013 WL 2286081, at *8 (Tex. App.—Tyler May 22,
2013, no pet.) (mem. op.) (evidence that the child was “in poor health” supported
finding that the parents engaged in an endangering course of conduct). Patricia
said Caleb had an untreated hernia and at least 13 ear infections while he was in
Mother’s care. After Caleb underwent ear tube surgery, Patricia said the
improvement in his hearing “was like night and day.” With respect to Kate,
Patricia said she had several cavities, sleep issues, and initially was “throwing a lot
of tantrums.”
Finally, other incidents and circumstances described by the witnesses’
testimony further support the finding that Mother engaged a course of conduct that
endangered Kate and Caleb. Jones described an incident in January 2020 when
Mother traveled “in the middle of the night” to Mississippi to be with her husband,
Yeager. At the time this occurred, Jones said Mother “was not supposed to be
alone with the children” and “was not supposed to leave the state without notifying
her caseworker.” Jones also noted that Yeager had an extensive criminal history,
including possession of a controlled substance and theft. Jones described a second
2020 incident in which Mother removed the children from the appointed Parental
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Child Safety Placement and went to Huntsville.
Patricia testified that she and her husband provided care for Mother’s oldest
son and Kate from May 2017 through September 2018, after the children initially
were removed from Mother’s care. But even after they were returned to Mother’s
care, Patricia said Mother would ask the Foster Parents to watch the children; it
eventually progressed to the point where the Foster Parents were watching the
children “almost every weekend.” Patricia recounted another incident in June
2020, in which Mother failed to pick Kate and Caleb up from day care. According
to Patricia, the day care called her at 8:30 p.m. and said it had been unable to get in
contact with Mother. Patricia picked the children up from daycare and informed
the Department’s caseworker of the incident.
Considered together, this evidence would allow the fact finder to form a firm
belief or conviction that Mother engaged in a course of conduct that endangered
Kate’s and Caleb’s physical or emotional well-being. See Tex. Fam. Code Ann.
§§ 101.007, 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at 266; In re C.H., 89
S.W.3d at 25. Accordingly, the evidence is factually sufficient to support
termination of Mother’s parental rights under subsection (E). See Tex. Fam. Code
Ann. § 161.001(b)(1)(E).
Because factually sufficient supports the subsection (E) termination finding,
we need not address the trial court’s finding pursuant to subsection (D). See In re
N.G., 577 S.W.3d at 232-33. Likewise, we need not address Mother’s challenge to
the trial court’s finding pursuant to subsection (O). See id. We overrule Mother’s
first, second, and third issues.
III. Best-Interest Finding
Mother also challenges the factual sufficiency of the evidence supporting the
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trial court’s finding that termination of her parental rights is in Kate’s and Caleb’s
best interest. See Tex. Fam. Code Ann. § 161.001(b)(2).
A. Governing Law
The best-interest inquiry is child-centered and focuses on the child’s well-
being, safety, and development. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018).
The factfinder may consider several factors to determine the child’s best interest,
including: (1) the desires of the child; (2) the present and future physical and
emotional needs of the child; (3) the present and future emotional and physical
danger to the child; (4) the parental abilities of the persons seeking custody; (5) the
programs available to assist those persons seeking custody in promoting the best
interest of the child; (6) the plans for the child by the individuals or agency seeking
custody; (7) the stability of the home or proposed placement; (8) acts or omissions
of the parent that may indicate the existing parent-child relationship is not
appropriate; and (9) any excuse for the parent’s acts or omissions. Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re E.R.W., 528 S.W.3d 251, 266
(Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Tex. Fam. Code Ann.
§ 263.307(b) (listing factors to consider in evaluating parents’ willingness and
ability to provide a child with a safe environment).
Courts apply a strong presumption that the best interest of the child is served
by keeping the child with the child’s natural parents, and it is the Department’s
burden to rebut that presumption. In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement in a safe
environment also is presumed to be in the child’s best interest. Tex. Fam. Code
Ann. § 263.307(a). A finding in support of “best interest” does not require proof
of any unique set of factors, nor does it limit proof to any specific factors. See
Holley, 544 S.W.2d at 371-72.
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B. Application
Guided by the Holley factors, we conclude that the evidence is not factually
insufficient to support trial court’s finding that termination of Mother’s parental
rights is in Kate’s and Caleb’s best interest. See id.
Kate’s and Caleb’s desires and needs. When the children were removed from
Mother’s care in September 2020, Kate was almost four years old and Caleb was
almost three. At the time of the bench trial, Kate was five years old and Caleb was
four.
When children are too young to express their desires, the fact finder may
consider that the children are bonded with their current placement, are well cared
for by them, and have spent minimal time with the parent. In re V.A., 598 S.W.3d
at 333. The evidence shows that these conclusions may be drawn here. Numerous
witnesses testified that Kate’s and Caleb’s physical and emotional well-being have
significantly improved since they have been in the Foster Parents’ care. Jones said
the Foster Parents have “provided a safe and stable environment” for the children
and that the Department has not had any concerns about the care they have
provided. Similarly, Sanders said she has made numerous announced and
unannounced visits to the Foster Parents and, each time, Kate and Caleb have been
happy and well cared for. Sanders said the children refer to the Foster Parents as
“mom” and “dad” and “seem to love where they are.”
Patricia also testified that Kate and Caleb are bonded to her and her husband.
According to Patricia, Kate had been living with her and her husband for over half
of her life and Caleb had lived with the family for 20 months.
Kate’s and Caleb’s present and future physical and emotional needs. The
evidence at trial suggests that Mother was not meeting Kate’s and Caleb’s physical
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and emotional needs while they were in her care.
As discussed above, when Caleb was placed in the Foster Parents’ care he
had numerous health issues, including an untreated hernia and frequent ear
infections.
The evidence also suggests that Mother was not consistently providing for
the children’s emotional needs. Jones testified that Mother twice removed the
children without permission: first, when she traveled with them to Mississippi and,
second, when she removed the children from their Parental Child Safety Placement
and moved them to Huntsville. Mother also would frequently leave the children in
the care of the Foster Parents and once failed to pick the children up from day care.
The trial court reasonably could conclude that this pattern of behavior would be
damaging to the children’s emotional needs.
In contrast, the evidence shows that the Foster Parents have adequately
provided for Kate’s and Caleb’s physical and emotional needs. Patricia testified
that, since he was removed from Mother’s care, Caleb has had surgery for his
hernia and ear tube surgery. Jones, Sanders, and Maniscalo each testified that the
Foster Parents can provide Kate and Caleb with a stable environment and provide
for the children’s needs.
Present and future emotional and physical danger to Kate and Caleb. The
evidence suggests that returning Kate and Caleb to Mother’s care would endanger
their physical and emotional health. As analyzed above with respect to the trial
court’s subsection (E) finding, the evidence supports the finding that Mother
engaged in a course of conduct that endangered Kate’s and Caleb’s physical or
emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(E); see also In re
V.A., 598 S.W.3d at 333 (“Evidence supporting termination under the grounds
listed in section 161.001(b)(1) can be considered in support of a finding that
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termination is in the child’s best interest.”). Based on the evidence presented at
trial, the trial court reasonably could conclude that this pattern of behavior would
continue into the future.
Plans for Kate and Caleb and stability of proposed placement. Jones, Sanders,
and Maniscalo each testified that it would be in Kate’s and Caleb’s best interest if
Mother’s parental rights were terminated so they could be adopted by the Foster
Parents. Emphasizing the consistent care provided by the Foster Parents, Jones
said “they have always been there, even picked up the children when Mom was not
available and they were left at daycare.” Similarly, Sanders noted the Foster
Parents’ “concern about the children’s well-being, their future endeavors and just
their stability.”
Acts or omissions of the parent that may indicate the existing parent-child
relationship is not appropriate and any excuses for those actions and omissions.
As discussed above in section II.B., Mother has an extensive criminal history and a
record of substance abuse. Mother also has been an inconsistent presence
throughout the children’s lives and has repeatedly continued to leave them with the
Foster Parents even after they were back in her custody. The record does not
contain any evidence of factors that mitigate these acts and omissions.
Conclusion. Based on this evidence, a reasonable fact finder could have formed a
firm belief or conviction that termination of Mother’s parental rights was in Kate’s
and Caleb’s best interest. See Tex. Fam. Code Ann. §§ 101.007, 161.001(b)(2).
We overrule Mother’s fourth issue.
IV. The Trial Court’s Failure to Appoint Mother as a Possessory
Conservator
In her fifth issue, Mother asserts the trial court erred by failing to appoint her
as the children’s possessory conservator. Mother cites Texas Family Code section
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153.191 to support this contention, which states:
The court shall appoint as a possessory conservator a parent who is
not appointed as a sole or joint managing conservator unless it finds
that the appointment is not in the best interest of the child and that
parental possession or access would endanger the physical or
emotional welfare of the child.
Id. § 153.191. Mother asserts that the evidence “conclusively demonstrates that
awarding Mother access and possession would not endanger the children’s
physical or emotional welfare.”
A conservatorship determination made pursuant to section 153.191 is
reviewed for an abuse of discretion. See Brandon v. Rudisel, 586 S.W.3d 94, 106-
07 (Tex. App.—Houston [14th Dist.] 2019, no pet.). A trial court abuses its
discretion if it acts arbitrarily, unreasonably, or without reference to any guiding
rules or principles. Id. at 102.
Under section 153.191, the trial court shall appoint a parent as a possessory
conservator unless the court finds that the appointment (1) is not in the best interest
of the child, and (2) would endanger the physical or emotional welfare of the child.
Tex. Fam. Code Ann. § 153.191. Here, the evidence supports the trial court’s
implied finding that appointing Mother as a possessory conservator would not be
in Kate’s and Caleb’s best interest and would endanger their physical or emotional
welfare.
As discussed above, the trial court found that (1) Mother engaged in conduct
that endangered Kate’s and Caleb’s physical or emotional well-being, and
(2) termination of Mother’s parental rights is in Kate’s and Caleb’s best interest.
See id. § 161.001(b)(1)(E), (b)(2). We reviewed the record and concluded that
these findings are supported by the evidence presented at trial. This evidence
likewise supports the trial court’s best-interest and welfare findings pursuant to
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section 153.191. Therefore, the trial court did not abuse its discretion in
concluding that Mother did not make the showing required under section 153.191
to establish her rights as a possessory conservator. See id. § 153.191.
We overrule Mother’s fifth issue.
CONCLUSION
We conclude that the evidence is not factually insufficient to support the
trial court’s section 161.001(b)(1)(E) and best-interest finding. We also conclude
that the trial court did not err by failing to appoint Mother as Kate’s and Caleb’s
possessory conservator. Therefore, we overrule Mother’s issues on appeal and
affirm the trial court’s June 9, 2022 final order.
/s/ Meagan Hassan
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
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