in the Interest of C.W.S. and J.S. ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00040-CV
__________________
IN THE INTEREST OF C.W.S. AND J.S.
__________________________________________________________________
On Appeal from the County Court at Law
Orange County, Texas
Trial Cause No. C200272-D
__________________________________________________________________
MEMORANDUM OPINION
Mother and Father appeal from an order terminating their parental rights.1
The trial court found, by clear and convincing evidence, that statutory grounds exist
for termination of Mother’s parental rights to her minor children, C.W.S. and J.S.,
and that termination of Mother’s parental rights would be in the best interest of
C.W.S. and J.S. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (2);
161.003(a). The trial court found, by clear and convincing evidence, that statutory
1We refer to the appellants as “Mother” and “Father” and their children by
their initials to protect their identities. See Tex. Fam. Code Ann. § 109.002(d); Tex.
R. App. P. 9.8(b)(2).
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grounds exist for termination of Father’s parental rights to his minor children,
C.W.S. and J.S., and that termination of Father’s parental rights would be in the best
interest of C.W.S. See id. § 161.001(b)(1)(D), (E), (O), (2). We affirm the trial
court’s judgment terminating Mother’s and Father’s parental rights.
MOTHER’S APPEAL
Mother’s appointed counsel submitted a brief in which counsel contends that
there are no arguable grounds to be advanced on appeal. See Anders v. California,
386 U.S. 738 (1967); In the Interest of L.D.T., 161 S.W.3d 728, 731 (Tex. App.—
Beaumont 2005, no pet.). The brief provides counsel’s professional evaluation of the
record. Counsel served Mother with a copy of the Anders brief filed on her behalf.
This Court notified Mother of her right to file a pro se response, as well as the
deadline for doing so. This Court did not receive a pro se response from Mother.
We have independently reviewed the appellate record and counsel’s brief, and
we agree that any appeal would be frivolous. We find no arguable error requiring us
to order appointment of new counsel to re-brief Mother’s appeal. Cf. Stafford v.
State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We affirm the trial court’s
judgment terminating Mother’s parental rights to C.W.S. and J.S.
We deny the motion to withdraw filed by Mother’s court-appointed counsel
because an attorney’s duty extends thought the exhaustion or waiver of all appeals.
See Tex. Fam. Code Ann. § 107.016(2)(B); In re P.M., 520 S.W.3d 24, 27 (Tex.
2
2016). Should Mother decide to pursue an appeal to the Supreme Court of Texas,
counsel’s obligations to Mother can be met “by filing a petition for review that
satisfies the standards for an Anders brief.” See In re P.M., 520 S.W.3d at 27-28.
FATHER’S APPEAL
PERTINENT EVIDENCE
The Department received a referral alleging neglectful supervision and
physical neglect of C.W.S. by Mother, who had dropped C.W.S. on repeated
occasions and left C.W.S. in the bathtub alone. The referral alleged Mother allowed
C.W.S. to be in contact with Mother’s uncle, who was a registered sex offender, and
her stepfather, who had allegedly sexually abused Mother. In the affidavit in support
of removal, Lana Murphy reported that the family had two previous cases with the
Department concerning mental health, substance abuse and an unsanitary living
environment. Murphy averred that Mother suffers from Cerebral Palsy, ADHD and
schizophrenia, and Mother tested positive on a hair test for Cocaine,
Benzoylecgonine and Cocaine Metabolite. Murphy reported that Father was on
probation for possession of a controlled substance, and Mother and Father had a
history of domestic violence including multiple instances of strangulation offenses.
Based on Murphy’s affidavit reporting the family’s history with the Department, the
presence of escalating domestic violence, parental immaturity, and family
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instability, the Department was named temporary sole managing conservator of
C.W.S.
The record shows that shortly after J.S.’s birth, the Department was named
temporary managing conservator of J.S. after receiving a report of neglectful
supervision by Mother, who tested positive for cocaine while pregnant with J.S. In
Angela Wilson’s affidavit in support of removal of J.S., Wilson explained that
Mother and Father failed to comply with a court order requiring J.S. to be drug tested
at birth, and there were concerns regarding the parents’ ability to care for J.S. Wilson
explained the parents had been previously validated for physical neglect of C.W.S.,
who had been diagnosed with failure to thrive due to lack of sufficient nutrients.
Wilson averred that Mother’s cocaine use was still a concern, the parents do not
appear to understand J.S.’s nutritional needs and they had not demonstrated the
ability to provide a safe environment for J.S.
The Department filed petitions seeking the termination of Mother’s and
Father’s parental rights to their minor children, C.W.S. and J.S. The trial court
conducted a bench trial on the Department’s petition. Wilson, a Department
investigator, testified that J.S. was removed from her parents the week after her
birth. Wilson testified that the Department received a referral concerning Mother’s
drug usage and positive drug screen during pregnancy, which occurred while Mother
and Father were involved in another conservatorship case and resulted in the parents
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being court ordered to test J.S.’s meconium at birth. Wilson explained that the
parents did not notify the Department about J.S.’s birth or ask the hospital to test
J.S.’s meconium. When Wilson visited with the parents and J.S. at their travel trailer,
she discovered that they were not feeding J.S. an appropriate amount of formula, but
the parents did not seem concerned. Wilson testified that when C.W.S. was removed
from the parents due to concerns about domestic violence and drug usage, C.W.S.
was diagnosed with failure to thrive due to a lack of nutrients.
Wilson also explained that during a Zoom hearing, she observed Mother
holding J.S. without supporting J.S.’s head, and the trial court had to instruct Mother
to support J.S.’s head. Wilson testified that the day of J.S.’s removal, a doctor
advised the parents to take J.S. to the hospital, but they failed to do so. According to
Wilson, the parents had not demonstrated the ability to independently care for J.S.,
and she was concerned about the parents’ ability to meet J.S.’s medical needs.
Wilson testified that the parents had three prior referrals in 2018, 2019 and 2020,
and the 2018 referral concerned drug use and the physical neglect of Mother’s oldest
child. Wilson further testified that the 2019 referral concerned neglectful supervision
due to Mother’s untreated mental health, but the concerns were ruled out and C.W.S.
was not removed.
Tiffany Noack, the children’s foster parent, testified that she has had C.W.S.
for twenty months and J.S. for fourteen months. Noack testified that when C.W.S.
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came into her care he was very small, malnourished, developmentally delayed, and
he was diagnosed with failure to thrive and 13Q interstitial deletion
syndrome. Noack explained that C.W.S. has delayed speech and goes to speech
therapy weekly, and he also has cognitive and motor skill issues, hearing loss and
significant visual impairment. According to Noack, C.W.S. is progressing but is
expected to have a lower-than-average IQ, and the 13Q interstitial deletion syndrome
is a lifelong condition that requires a lot of testing and monitoring because it can
cause future problems. Noack testified that C.W.S. may be unable to independently
care for himself as an adult.
Noack explained that she was concerned that C.W.S.’s parents disagree with
his diagnosis and believe that the Department made it up to prevent them from
getting custody back, because his parents would not think it was necessary to
continue care for his medical issues. Noack explained that the parents have indicated
that they will move to Louisiana when the case is concluded because the Department
has a vendetta against them. Noack testified that J.S. does not have any medical or
mental health issues, but the day after J.S. was placed in her care, J.S. was
hospitalized for three days for failure to thrive. Noack testified that if the court
terminates parental rights, she intends to adopt the children, and it is not in the
children’s best interest to be in the parents’ home.
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Dr. Nisha Amin, a licensed psychiatrist, testified that the Department
contracted with her to conduct psychological evaluations of the parents. Amin
explained Mother reported that she tested positive for cocaine and that this was her
fourth Department intervention. Amin explained that Mother also reported that her
relationship with Father was “rocky” and included a history of drug use. According
to Amin, Mother did not work or have her own transportation, and she denied that
her child had any medical problems. Regarding Mother’s mental assessment, Amin
testified that Mother reported experiencing auditory and visual hallucinations, which
indicated she was having ongoing issues with her schizophrenia.
Amin explained that due to Mother’s mild mental retardation and second-
grade level in academic functioning, it will be hard for Mother to care for herself,
and Mother will have to rely on someone’s supervision to help her raise her children.
Amin further testified that since Mother reported sexual and physical abuse as a
child, it would be difficult for Mother to rely on her parents for support, and Amin
was concerned about Mother exposing her own child to the same environment. Amin
explained that Mother’s personality patterns include difficulty socializing, odd
patterns of reality testing, anxiety, angry outbursts, passive aggressiveness, lack of
organization, paranoia and delusions, and those patterns distort reality, make it hard
for Mother to meet the needs of her children, who could be traumatized and at risk
for mental health problems.
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Amin diagnosed Mother with schizophrenia bipolar type, generalized anxiety
disorder and borderline personality disorder. Amin explained that Mother’s
intellectual and mental health issues contributed to her denial that her child has
serious medical issues. Amin testified that Mother needs psychiatric aid, including
medications, which Mother has failed to consistently take, and Mother used drugs
like marijuana to treat her symptoms. Amin explained that Mother needs ongoing
help and supervision for herself before she can competently care for a child, which
she has never independently been able to do.
Concerning his evaluation of Father, Amin explained that Father reported
Mother to the Department because C.W.S. was in an unstable home with Mother,
who was pregnant. According to Amin, Father could not identify that C.W.S. had
any development delay, which the Department obviously reported. Amin testified
that Father reported that he stopped taking drugs in March 2018 when he was
charged with possession of a controlled substance and stopped drinking alcohol six
months ago. Amin explained that Father has a low average range of intelligence,
academically functions at a seventh-grade level and has a mild mental disorder.
Amin diagnosed Father with ADHD and adjustment disorder with depressed mood.
Amin opined that counseling and parenting education was vital for Father to have
the capacity to care for C.W.S.’s needs. According to Amin, in a situation where
both parents have mental health issues, the parents’ mental health needs can override
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their ability to care for a child. Amin testified that reunification was possible if
Father could meet and sustain the Department’s directives, as well as financial
independence and sobriety. On cross-examination, Amin explained that to be able
to effectively care for her children, Mother would have to seek mental health
treatment, take medication, have a very good support system and be supervised
daily. According to Amin, Father would also need a support system to raise the
children.
Georgia Williams, a licensed professional counselor, testified that she
counseled Mother and Father. Williams testified that the parents told her that the
Department became involved after they got in a fight over the phone and Mother
took C.W.S. to her mother’s home. Williams explained that the parents reported
Father called the Department because Mother had C.W.S. in a home with her brother,
a registered sex offender, and her stepfather, who Mother claimed had sexually
abused her. Williams testified that Mother reported that she tested positive for
cocaine while pregnant, and the Department removed C.W.S. and the baby upon
birth. Williams also testified that Father reported that Mother could not read and had
gotten the numbers mixed up on the bottles, and he had to quit his job to help Mother
and depended on his family for financial support. According to Williams, Mother
reported that she was not taking her medications because Father said it makes her a
zombie.
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Williams explained that during her visits with Mother and Father, the parents
reported they had completed some parenting and drug classes and that they were
working with the Department to get their children back. Williams testified that the
parents planned to move to Louisiana where they had family support to care for the
children, but they felt like the Department had a grudge against them. Williams
explained that during their visits, the parents never acknowledged any deficits in
their parenting or that they had learned anything from the classes the Department
was requiring them to take. Williams also explained that the parents did not appear
to benefit from the counseling sessions, and she discharged them due to a lack of
progress.
Williams testified that she did not recommend placing the children back with
the parents because Mother was unable to care for the children without constant
supervision, and Father could not provide the amount of required supervision while
trying to work. Williams further testified that Father was co-dependent on Mother,
and it was difficult to isolate whether he could care for the children. According to
Williams, the parents were unable to demonstrate progress in providing a stable
home for their children.
Randi Frazee, a Department caseworker, testified that during her brief
involvement with the case, the parents were being moderate in their compliance with
the Department’s Service Plan. According to Frazee, although the parents had
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completed some of their services, they had not demonstrated behavior changes.
Frazee testified that she visited the parent’s home on three occasions, and the home
had roaches and bed bugs and no hot water at times. Frazee also explained that she
had concerns that Mother was not taking her medications and that the parents were
unable to provide the necessary paperwork to maintain their food stamps.
Lana Murphy, a Department investigator, testified that she investigated a
report regarding concerns that Mother had C.W.S. in an unsanitary home and of
possible sexual abuse. Murphy testified that she investigated Mother’s parents’
home, which was cluttered and had an abandoned, partially filled pool. Murphy
explained that Mother reported that she was in a domestic violence relationship with
Father and planned to get a divorce, and Mother made a police report alleging that
Father had choked her on several occasions and wanted her to drown C.W.S. Murphy
testified Mother was pregnant and tested positive for cocaine and C.W.S. also tested
positive for cocaine. Murphy also testified that Mother’s brother, who stayed at the
home, had prior sexual abuse allegations, but Mother claimed her brother had no
contact with C.W.S. Murphy explained that due to Department involvement, Mother
did not have custody of her two other children, and Mother had a history of drug use,
unsanitary living conditions and unstable mental health.
Murphy also explained that Father was concerned about C.W.S. due to the
conditions of Mother’s parents’ home and the possible caregivers. Murphy testified
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that Father reported being on probation for a possession charge, and he denied all
claims of domestic violence, but other people confirmed that Father was abusive,
including his mother. Murphy explained that Mother eventually dropped the charges
against Father and moved back in with him. Murphy testified that she believed
C.W.S.’s physical or emotional wellbeing was in danger and that Mother had
knowingly placed or allowed C.W.S. to remain in conditions or surroundings which
endangered his physical or emotional wellbeing. Murphy also testified that by testing
positive for cocaine during her pregnancy, Mother abused her unborn child, and the
fact that C.W.S. tested positive for cocaine shows that Mother exposed C.W.S. to
conditions which endangered his physical or emotional wellbeing. Murphy further
testified that the allegations that Father committed domestic violence raised concerns
that Father exposed C.W.S. to an unreasonable risk of physical or emotional
wellbeing.
Beth Green, a Department caseworker, testified that she was the main
caseworker for C.W.S. and J.S. Green testified that Mother and Father indicated they
understood the tasks and goal of their Family Service Plans. Green explained that
Mother failed to comply with her Family Service Plan by failing to maintain suitable
and appropriate housing, attend prenatal appointments, demonstrate that she learned
an adequate amount of skills from the parenting course to alleviate the Department’s
concerns, maintain an appropriate support system, comply with the
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recommendations from her psychological and psychiatric evaluations, and manage
her medication. Green testified that Mother had positive hair follicle tests in May
2020 during the investigation of C.W.S. and in September 2020 after completing an
outpatient drug assessment, and the Department determined that the second test
demonstrated new use and requested Mother complete a new drug assessment.
According to Green, Mother has had negative drug tests since September 2020.
Green also explained that Father failed to comply with his Family Service
Plan by failing to maintain financial stability and stable housing, demonstrate that
the usage of the skills learned in the parenting course, and attend counseling and
demonstrate the ability to address the issues that led to C.W.S.’s removal. Green
testified that the parents were living together before C.W.S. and J.S. were removed
and diagnosed with failure to thrive and that Father was dismissive of C.W.S.’s
medical conditions. Green further testified that Father failed to demonstrate he could
care for the children and be the protective parent and adequately supervise Mother
and was dismissive of Mother taking her medications.
According to Green, Mother and Father knowingly placed or allowed C.W.S.
and J.S. to remain in conditions and surroundings that endangered their physical and
emotional wellbeing, and both parents engaged in conduct or knowingly placed the
children with persons who engaged in conduct which endangered the physical or
emotional wellbeing of the children. Green testified that she believes the parents
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have a mental or emotional illness or mental deficiency that renders them unable to
provide for the physical and emotional needs of their children until the children are
eighteen years old. Green further testified that it was in the best interest of the
children that Mother’s and Father’s parental rights be terminated so the children
could be adopted and C.W.S. could continue to get the medical care he needs.
Mother testified that she understood the Department removed C.W.S. because
she alleged that Father hurt her and because she and C.W.S. had drugs in their
system. Mother testified that she went over her Family Service Plan with the
Department and worked on her plan. Mother explained that she receives disability
because she has cerebral palsy and Hirschsprung’s disease, but when C.W.S. was
removed she was not getting disability because Father made too much money.
Mother testified that she could care for the children because she is receiving
disability and food stamps and financial support from Father’s parents. Mother also
explained that she was concerned about C.W.S.’s weight because he did not want to
eat, but she did not notice anything else of concern. Mother testified she tried to
notify the Department about J.S.’s birth, and she asked the hospital about testing
J.S.’s meconium.
According to Mother, she provided stable housing, successfully completed
counseling, and is no longer arguing with Father. Mother explained that if the
children were returned, she planned to put them in daycare and move to Louisiana
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to have the support of Father’s family. Mother also explained that she is currently
taking her medications and plans to continue to do so with Father’s support, and she
has demonstrated that she can stay drug free. Mother testified that it was not in the
children’s best interest to terminate her parental rights. Mother explained that she
has two sons who live with their fathers, and the Department was involved with one
of her sons due to her use of cocaine.
Father testified that he called the Department about C.W.S. because he felt
that C.W.S. was in danger being at Mother’s parents’ home. Father explained that
Mother’s brother was a sex offender and her stepfather had molested her. Father
denied any claims of domestic violence, which Mother recanted. Father also testified
that he did not know how Mother tested positive for drugs because they had quit
using drugs after he got arrested for possession of drugs and unlawfully carrying a
weapon and was placed on probation for possession of a controlled substance.
According to Father, Mother had problems with drugs when C.W.S. was born.
Father explained that he did not think they underfed C.W.S. and that C.W.S. was
fine. Father also explained that he was aware of C.W.S.’s condition and needs, but
he wanted to get another doctor’s opinion. According to Father, he planned to return
to work, send C.W.S. to daycare, and take C.W.S. to his doctor appointments.
Regarding J.S., Father testified that he stayed home during the short time they
had her, and they did not underfeed J.S., and she was progressing like C.W.S. had
15
done. Father explained that they fed J.S. every three to four hours and when she
cried, but J.S. had a problem with spitting up frequently. Father also explained they
had plenty of formula for J.S., and his mother, stepfather, and a friend provided them
with support. According to Father, he maintained stable housing and did what he
needed to financially support the household, and he intends to return to work. Father
testified that he needs to fix the hot water, but it is not a big deal because he has
access to hot water at the trailer park’s shower house. Father also testified that he
still has a roach problem.
Father explained that he intends to move to Louisiana where he has family
and find or build a house. According to Father, he completed two parenting courses
and learned how to take care of the children and run a household. Father testified
that he also went to two counselors, Williams and Manning, and Manning helped
him deal with getting through his depression about this situation. Regarding
Mother’s mental health, Father explained that she is a slow learner and has “freak
out moments” when she gets stressed, and he helps her calm down. Father also
explained that he encourages Mother to take her medication and encourages her to
get her medication adjusted at times. Father testified that he intends to remain
married to Mother, take care of the children, and never leave the children
unsupervised with Mother. Father further testified that he thinks Mother was a great
mom before the Department became involved.
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Dorothy Stanley, the guardian ad litem for the children, testified that the
parents were both caring for C.W.S. when he was failing to thrive, and the feeding
issue came up again when J.S. was removed. Stanley testified that Mother and Father
knowingly placed or allowed the child to remain in conditions or surroundings which
endangered their physical or emotional wellbeing. Stanley explained that Father
allowed Mother to care for and improperly feed the baby, which caused weight loss
and failure to thrive. Stanley also testified that Mother and Father engaged in conduct
or knowingly placed the children with persons who engaged in conduct which
endangered the physical or emotional wellbeing of the children. According to
Stanley, Father left Mother in charge of the children knowing that she is not capable
of caring for a young child. According to Stanley, Father had isolated Mother, called
the shots, allowed Mother to primarily care for the children, and endangered the
children by not intervening and seeing to their proper care. Stanley testified that it
was in the best interest of the children to terminate Mother’s and Father’s parental
rights because the children will not be safe with the parents, who are not equipped
to raise the children. Brennon Mitchell, the attorney ad litem for the children, advised
the court that although he believed that it may be in the children’s best interest to
terminate Father’s parental rights, he did not recommend termination because he did
not know if there was clear and convincing evidence supporting a predicate statutory
ground for termination of Father’s parental rights.
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The trial court found that clear and convincing evidence supported three
predicate statutory grounds for terminating Mother’s and Father’s parental rights and
that termination of Mother’s and Father’s parental rights was in the best interest
of C.W.S. and J.S. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (2). The
trial court also found by clear and convincing evidence that Mother has a mental or
emotional illness or a mental deficiency that renders her unable to provide for the
children’s needs until their eighteenth birthday. The trial court appointed the
Department as the permanent managing conservator of C.W.S. and J.S.
ANALYSIS
In four issues, Father challenges the legal and factual sufficiency of the
evidence supporting the best-interest finding and the termination grounds specified
in sections 161.001(b)(1)(D), (E) and (O). See id.Under legal sufficiency review, we review “all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have
formed a firm belief or conviction that its finding was true.” In the Interest of J.F.C.,
96 S.W.3d 256, 266 (Tex. 2002). We assume that the factfinder resolved disputed
facts in favor of its finding if a reasonable factfinder could, and we disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id. If no reasonable factfinder could form a firm belief or conviction that
the matter that must be proven is true, the evidence is legally insufficient. Id.18
Under factual sufficiency review, we must determine whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction about the
truth of the Department’s allegations. Id. We give due consideration to evidence that
the factfinder could reasonably have found to be clear and convincing. Id. We
consider whether disputed evidence is such that a reasonable factfinder could not
have resolved that disputed evidence in favor of its ruling. Id. If, in light of the entire
record, the disputed evidence that a reasonable factfinder could not have credited in
favor of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, the evidence is factually insufficient. Id.The decision to terminate parental rights must be supported by clear and
convincing evidence, i.e., “the measure or degree of proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations
sought to be established.” Tex. Fam. Code Ann. § 101.007; In the Interest of J.L.,
163 S.W.3d 79, 84 (Tex. 2005). The movant must show that the parent committed
one or more predicate acts or omissions and that termination is in the child’s best
interest. See Tex. Fam. Code Ann. § 161.001(b)(1), (2); see also In the Interest of
J.L., 163 S.W.3d at 84. We will affirm a judgment if any one of the grounds is
supported by legally and factually sufficient evidence and the best-interest finding
is also supported by legally and factually sufficient evidence. In the Interest of
C.A.C., Jr., No. 09-10-00477-CV, 2011 WL 1744139, at *1 (Tex. App.—Beaumont
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May 5, 2011, no pet.) (mem. op.). However, when, as here, a parent challenges a
trial court’s findings under section 161.001(b)(1)(D) or (E), we must review the
sufficiency of those grounds as a matter of due process and due course of law. See
In the Interest of N.G., 577 S.W.3d 230, 235 (Tex. 2019).
Section 161.001(b)(1)(D) of the Family Code allows for termination of a
parent’s rights if the trier of fact finds by clear and convincing evidence that the
parent has “knowingly placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of the child[.]”
Tex. Fam. Code Ann. § 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for
termination if the trier of fact finds by clear and convincing evidence that the parent
has “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[.]” Id.§ 161.001(b)(1)(E). “[A] parent’s use of narcotics and its effect on his or her ability
to parent may qualify as an endangering course of conduct.” In the Interest of J.O.A.,
283 S.W.3d 336, 345 (Tex. 2009) (citations omitted). A parent’s conduct in the home
can create an environment that endangers the child’s physical and emotional well-
being. In the Interest of J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.). “The factfinder may infer from past conduct endangering the child’s well-
being that similar conduct will recur if the child is returned to the parent.” In the
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Interest of M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.)
(citations omitted).
For purposes of subsection (E), endangerment means to expose the child to
loss or injury or to jeopardize a child’s emotional or physical health. Id.; In the
Interest of M.L.L., 573 S.W.3d 353, 363 (Tex. App.—El Paso 2019, no pet.).
Termination under subsection (E) must be based on more than a single act or
omission and requires a voluntary, deliberate, and conscious course of conduct by
the parent. Interest of M.L.L., 573 S.W.3d at 363-64. A parent’s conduct that
subjects a child’s life to instability and uncertainty endangers the emotional or
physical well-being of a child. Id. at 363. Endangerment is not limited to actions
directed toward the child and includes the parent’s actions before the child’s birth
and while the parent had custody of older children, including evidence of drug
usage. In the Interest of J.O.A., 283 S.W.3d at 345. Courts may consider whether a
parent’s drug use continues after the child is removed from the parent’s care, as such
conduct shows a voluntary, deliberate, and conscious course of
conduct that endangers a child’s well-being. In the Interest of J.S., 584 S.W.3d 622,
635 (Tex. App.—Houston [1st Dist.] 2019, no pet.); see In the Interest of M.E.-M.N.,
342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied).
The trial court heard that Mother had a history with the Department
concerning drug use, unsanitary living conditions, and unstable mental health and
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that Mother did not have custody of her two other children. The trial court heard
evidence that Mother and Father were involved in a conservatorship case involving
C.W.S. when C.W.S. and Mother, who was pregnant with J.S., tested positive for
cocaine, and J.S. was removed the week after her birth. The trial court heard
testimony that Mother abused J.S. by testing positive for cocaine during her
pregnancy, and that C.W.S.’s positive test for cocaine shows that Mother exposed
C.W.S. to conditions which endangered his physical or emotional wellbeing.
The trial court also heard that when C.W.S. was removed from the parents due
to concerns about domestic violence and drug usage, C.W.S. was diagnosed with
failure to thrive due to a lack of nutrients, and Wilson also discovered that the parents
were not feeding J.S. an appropriate amount of formula. The trial court considered
testimony that the parents had not demonstrated the ability to independently care for
J.S. and to meet J.S.’s medical needs. The trial court heard testimony that after J.S.
was removed, she was hospitalized for three days for failure to thrive.
The trial court heard Green testify that the parents were living together before
the children were removed and diagnosed with failure to thrive, that Father was
dismissive of C.W.S.’s medical conditions, and that Father failed to demonstrate he
could care for the children and be the protective parent and adequately supervise
Mother. The trial court considered Green’s testimony that Father knowingly placed
or allowed the children to remain in conditions and surroundings that endangered
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their physical and emotional wellbeing and engaged in conduct or knowingly placed
the children with persons who engaged in conduct which endangered the physical or
emotional wellbeing of the children, and that Father had failed to demonstrate that
he had the skills and ability to address the issues that led to C.W.S.’s removal.
The trial court also considered Stanley’s testimony that the parents were both
caring for C.W.S. when he was failing to thrive and when the feeding issue came up
again when J.S. was removed. The trial court heard that Father knowingly placed or
allowed the child to remain in conditions or surroundings which endangered their
physical or emotional wellbeing by allowing Mother to care for and improperly feed
the baby, which caused weight loss and failure to thrive. The trial court also heard
that Father engaged in conduct or knowingly placed the children with persons who
engaged in conduct which endangered the physical or emotional wellbeing of the
children by leaving Mother in charge of the children knowing that she is not capable
of caring for a young child. The trial court further considered Stanley’s testimony
that Father endangered the children by allowing Mother to be the primary caregiver
of the children and not intervening and seeing to their proper care.
The trial court heard Williams testify that the parents never acknowledged any
deficits in their parenting or showed that they had learned anything from the classes
they took, and that the parents did benefit from counseling. The trial court also
considered Father’s testimony that Mother had problems with drugs when C.W.S.
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was born and that he did not know how Mother tested positive for drugs because
they had quit using drugs. The trial court also heard Father testify that before the
Department intervened, the children were fine and progressing and that Mother was
a great mom.
Viewing the evidence in the light most favorable to the trial judge’s findings,
we conclude that the trial judge could reasonably have formed a firm belief or
conviction that Father knowingly placed or knowingly allowed C.W.S. and J.S. to
remain in conditions or surroundings which endangered their physical or emotional
well-being and engaged in conduct or knowingly placed C.W.S. and J.S. with
persons who engaged in conduct that endangered their physical or emotional well-
being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In the Interest of J.O.A.,
283 S.W.3d at 345; In the Interest of J.F.C., 96 S.W.3d at 266; In the Interest of J.S.,
584 S.W.3d at 635; Interest of M.L.L., 573 S.W.3d at 363; In the Interest of
M.R.J.M., 280 S.W.3d at 502; In the Interest of J.T.G., 121 S.W.3d at 125.
Regarding the best-interest inquiry, we consider a non-exhaustive list of
factors: (1) the desires of the child; (2) emotional and physical needs of the child
now and in the future; (3) emotional and physical danger to the child now and in the
future; (4) parental abilities of the individuals seeking custody; (5) programs
available to assist these individuals to promote the best interest of the child; (6) plans
for the child by these individuals or by the agency seeking custody; (7) stability of
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the home or proposed placement; (8) acts or omissions of the parent which may
indicate that the existing parent-child relationship is not proper; and (9) any excuse
for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976); see Tex. Fam. Code Ann. § 263.307(b). No particular Holley factor is
controlling, and evidence of one factor may be sufficient to support a finding that
termination is in a child’s best interest. In the Interest of A.P., 184 S.W.3d 410, 414
(Tex. App.—Dallas 2006, no pet.). The best-interest determination may rely on
direct or circumstantial evidence, subjective facts, and the totality of the evidence.
In the Interest of N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011, no pet.).
“A parent’s drug use, inability to provide a stable home, and failure to comply
with a family service plan support a finding that termination is in the best interest of
the child.” In the Interest of M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth
2007, no pet.) (citation omitted). Evidence of a parent’s continued drug use supports
a finding that he poses a present and future risk of physical or emotional danger to
the child and that termination would be in the child’s best interest. See In the Interest
of S.N., 272 S.W.3d 45, 53–54 (Tex. App.—Waco 2008, no pet.).
With respect to the best interest of the children, the trial court heard evidence
that Father (1) failed to demonstrate the usage of the skills learned in the parenting
course and the ability to address the issues that led to removal, (2) never
acknowledged any deficits in his parenting or benefited from counseling, (3) failed
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to complete his services in his family service plan, (4) failed to maintain financial
stability and stable housing, (5) was dismissive of C.W.S.’s medical diagnosis, (6)
had been unable to identify that C.WS. had any development delay despite being
obvious, (7) failed to demonstrate he could care for the children and be the protective
parent and adequately supervise Mother, and that (8) the children were stable in their
current placement which is willing to provide a forever home.
Prompt and permanent placement of the child in a safe environment is
presumed to be in the child’s best interest. See Tex. Fam. Code Ann. § 263.307(a).
As the sole judge of the credibility of the witnesses and the weight to be given to
their testimony, the trial court could reasonably conclude that termination of Father’s
parental rights is in the best interest of C.W.S. See id. § 161.001(b)(2), 263.307(a);
see also In the Interest of J.F.C., 96 S.W.3d at 266; Holley, 544 S.W.2d at 371-72;
In the Interest of S.N., 272 S.W.3d at 53–54; In the Interest of M.R., 243 S.W.3d at
821.
We conclude that the Department established, by clear and convincing
evidence, that Father committed the predicate acts enumerated in sections
161.001(b)(1)(D) and (E) and that termination of Father’s parental rights is in the
best interest of C.W.S and J.S. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E),
(2); In the Interest of C.A.C., Jr., 2011 WL 1744139, at *1. Accordingly, we overrule
issues one, two, and four. Having concluded that the evidence was legally and
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factually sufficient to support the trial court’s findings as to subsections
161.001(b)(1)(D), (E), and (2), we need not reach issues three, in which Father
challenges the sufficiency of the evidence supporting the trial court’s finding under
section 161.001(b)(1)(O). See In the Interest of N.G., 577 S.W.3d at 235; In the
Interest of C.A.C., Jr., 2011 WL 1744139, at *1; see also Tex. R. App. P. 47.1. We
affirm the trial court’s judgment terminating Father’s parental rights to C.W.S. and
J.S.
AFFIRMED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on June 22, 2022
Opinion Delivered July 28, 2022
Before Golemon, C.J., Kreger and Johnson, JJ.
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