in the Interest of M.S. and S.S., Children ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00147-CV
___________________________
IN THE INTEREST OF M.S. AND S.S., CHILDREN
On Appeal from the 231st District Court
Tarrant County, Texas
Trial Court No. 231-660900-19
Before Gabriel, Birdwell, and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
In this private termination case, appellant C.B. (Mother) appeals the trial court’s
order terminating her parental rights to her children M.S. (Matthew) and S.S.
(Samantha) (collectively the Children).1 In five issues, Mother contends the evidence
was legally and factually insufficient to support termination under Family Code
Section 161.001(b)(1)(D) and (E), the evidence was legally and factually insufficient to
support the trial court’s best-interest finding, the trial court erred in assessing child
support against Mother, the trial court erred in assigning child support arrears to
Appellees C.C. (Mr. Clark) and M.C. (Mrs. Clark) (collectively the Clarks), and the trial
court erred in awarding attorney’s fees to the Clarks. Because we will hold that the
evidence was legally and factually sufficient to support both the conduct grounds and
the trial court’s best-interest finding, and because we will hold that Mother’s
complaints regarding child support, child support arrears, and attorney’s fees are
either not preserved or lack merit, we will affirm the trial court’s termination order.
I. BACKGROUND
A. THE CHILDREN’S 2008 REMOVAL AND SUBSEQUENT RETURN TO MOTHER
Matthew was born to Mother and M.L.S. (Father) in 2004, and Samantha was
born to Mother and Father in 2005. Father had a criminal history, and by his own
1
We use aliases to refer to the Children and the parties. See Tex. Fam. Code
Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2
account, he was “a stranger in [the Children’s] lives for most of their li[ves].”2 In
2007, the trial court entered an order naming Mother and Father joint managing
conservators of the Children and designated Mother as the conservator with the right
to determine the Children’s primary residence.
In April 2008, the Department of Family and Protective Services (the
Department) removed the Children from Mother’s care and placed them with a family
friend. When asked about the 2008 removal at the 2020 termination hearing, Mother
stated that she could not recall whether the Children were removed in 2008 and could
not recall how many times the Children had been removed by the Department.3
Father testified that the Children were removed because of “[a]llegations of physical
abuse and child neglect on behalf of [Mother].” When asked about the neglect that
led to the 2008 removal, Father stated that Mother had left the Children alone in their
apartment by themselves or had left them with friends or neighbors who, unable to
reach Mother, left the children unattended. At the termination hearing, Mother was
asked whether she had left the Children alone when they were very young, and
2
The trial court terminated Father’s parental rights to the Children in the same
order terminating Mother’s parental rights. Father does not appeal.
3
Mother testified that she has “recall and memory issues” that impact “all
domains of life.” She described how she would not remember how to get to college
classes that she had attended on a daily basis. She also described an incident where
she was found sleeping in a faculty member’s office, and she could not recall how she
had arrived there. Mother attributes the memory issues as a side effect of being
bipolar.
3
Mother mentioned leaving them alone on one occasion when she had to study for a
college exam. Mother could not recall the Children’s ages during that incident, nor
could she recall whether it was that incident that led to the 2008 removal. Mother
stated that that one incident was the only time she had left the Children alone. The
Children were later returned to Mother in March 2009.
B. THE CHILDREN’S 2011 REMOVAL, PLACEMENT WITH THE CLARKS,
AND RETURN TO MOTHER
The Department again removed the Children from Mother’s care in April 2011,
and this time, they were placed in foster care with the Clarks and the Clarks’ children.
When asked about the 2011 removal at the 2020 termination hearing, Mother stated
that she did not remember why the Children were removed but said it was probably
due to a “housing situation.” Father testified that the Children were removed in 2011
because of “physical abuse and child neglect.” He stated that “[t]he main physical
abuse was done to [Matthew] where [Mother] had slapped him across the face and left
a handprint on one side of his face and caused damage to his eye.” Mrs. Clark
testified that she saw “bruises” and “marks” on Matthew’s face when he was placed in
her home, and she stated that Samantha told her that Mother had slapped Matthew
across the face after he had gotten in trouble at school. Mother testified that she
could not remember whether she had slapped Matthew. She also stated that she
could not remember whether there had ever been allegations of physical abuse made
against her, nor could she remember whether she had ever physically abused the
4
Children. The Children lived with the Clarks from April 2011 until February 2012,
when they were returned to Mother.
C. MOTHER VOLUNTARILY PLACES THE CHILDREN WITH THE CLARKS IN 2017
Around the beginning of July 2017, Mother contacted Mrs. Clark and inquired
about adoption protocols. Mother testified that she had reached out to Mrs. Clark
because she was in a “[f]inancial crisis.”4 Later in July, Mother met with Mrs. Clark,
and Mrs. Clark expressed a willingness “to assist in any way that [she] could,”
including adopting the Children if Mother so desired. Mother expressed to Mrs. Clark
that she trusted her and believed that the Clarks had had a positive impact on the
Children’s lives and that the Children considered the Clarks to be “extended family.”
Mother also expressed that she believed the Children “would benefit from a 2-parent
household with stability and structure.” The Children spent several nights in July at
the Clarks’ home, and they began staying there regularly soon thereafter. Mother
testified that she was not abandoning the Children but that she felt it was in the
Children’s best interest to live with the Clarks. In August 2017, Mother signed a
power of attorney necessary for the Children to begin attending school with the
Clarks’ other children. In the ensuing months, Mother and Mrs. Clark discussed the
possibility of the Clarks adopting the Children, but Mother never agreed to adoption.
4
At the termination hearing, Mother testified that she had been in college for
approximately fifteen years and had found it difficult to find gainful employment
without a college degree.
5
Mrs. Clark testified that Mother’s visits with the Children were frequent at the
beginning after the Children began living with the Clarks but that Mother’s visits
slowed down over time. Mrs. Clark testified that the Children started to not want to
visit with Mother and that sometime around the end of 2018 to the beginning of
2019, the Children began insisting that the Clarks attend the visits with them. Mother
testified that she visited the Children monthly.
At the termination hearing, Mrs. Clark testified that in the two-and-a-half years
that the Children had been living with her, she and her husband had been feeding the
Children, clothing them, providing for their education, and taking them to the doctor
and dentist.5 Mrs. Clark testified that she and her husband loved the Children, and
that they desired to adopt them. Father testified that the Children had expressed their
desire to be adopted by the Clarks. Father also testified that the Children are bonded
to the Clarks and that he believed that the Children are “happy[,] safe[,] and secure” at
the Clarks. Mother also testified that the Children are happy with the Clarks and that
they are doing well in school. She further testified that the Clarks’ residence is safe
and secure.
5
As to the dentist, Mother testified that she was concerned that the Children
were not getting the dental care they needed from the Clarks although she admitted
that she had not been attending the Children’s dental visits. Mrs. Clark testified that
she and her husband had placed the Children on their dental insurance and that the
Children received cleanings every six months as well as regular exams.
6
D. FURTHER ALLEGATIONS AGAINST MOTHER AND
MOTHER’S STAYS IN A PSYCHIATRIC FACILITY
At the termination hearing, Mrs. Clark testified that the Children had made
outcries of abuse and neglect to her regarding incidents that had occurred sometime
between when the Department returned the Children to Mother in 2012 and when
the Children began living with the Clarks again. Mrs. Clark stated that Samantha had
told her that she had been left for “[l]ong periods of time home alone . . . maybe a
week.” She averred that Samantha also told her that Mother had thrown a chair at
her. Mrs. Clark also testified that Matthew told her that Mother made him “stay on
the balcony overnight in his underwear for receiving a bad grade.” Mother denied
making Matthew stay on the balcony overnight in his underwear and denied throwing
“a table or a lamp” at Samantha.
At the termination hearing, Mother also testified that she had been in a
psychiatric treatment facility sometime around September 2019, although she did not
know how long she was in the facility or why she was in the facility. Mother’s
boyfriend testified that he had taken her to the hospital in September 2019 because
“she was talking a little bit off . . . a bit of nonsense” and that “she wasn’t herself.”
He stated that Mother had been in the hospital for “a little bit more than two weeks”
pursuant to a court order. Mother’s boyfriend stated that she had also been in a
psychiatric treatment facility for two weeks during the summer of 2018.
7
E. PROCEDURAL HISTORY AND THE TRIAL COURT’S TERMINATION ORDER
In November 2018, the Clarks filed a petition to terminate Mother’s and
Father’s parental rights to the Children.6 In their original petition, the Clarks sought
termination of Mother’s parental rights based on the predicate termination grounds
set forth in Subsections (B), (C), (F), and (K) of Section 161.001(b)(1) of the Family
Code. See Tex. Fam. Code Ann. § 161.001(b)(1)(B), (C), (F), (K). The Clarks later
amended their petition to also allege the endangerment grounds set forth in
Subsections (D) and (E). See id. § 161.001(b)(1)(D), (E). Following the termination
hearing, the trial court issued a ruling terminating Mother’s parental rights to the
Children under Subsections (D) and (E) and finding that such termination was in the
Children’s best interest. The trial court also found that $4,138.68 in child support was
on hold with the Texas Attorney General’s Office stemming from payments made by
Father while the Clarks had possession of the Children, and the trial court assigned
that money to the Clarks and ordered that it be released to them. The trial court also
awarded the Clarks their attorney’s fees to be paid by Mother. Mother appeals from
that termination order.
6
That petition was initially filed in Dallas County, but the case was eventually
transferred to the 231st District Court of Tarrant County.
8
II. CONDUCT GROUNDS
In her first issue, Mother argues that the evidence was legally and factually
insufficient to support termination under Family Code Section 161.001(b)(1)(D) and
(E).
A. STANDARD OF REVIEW
For a trial court to terminate a parent–child relationship, the party seeking
termination must prove two elements by clear and convincing evidence: 1) that the
parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1);
and 2) that termination is in the child’s best interest. Id. § 161.001(b); In re E.N.C.,
384 S.W.3d 796, 803 (Tex. 2012); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). 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.
To determine whether the evidence is legally sufficient in parental-termination
cases, we look at all the evidence in the light most favorable to the challenged
findings—here the endangerment findings—to determine whether a reasonable fact-
finder could form a firm belief or conviction that the finding is true. In re J.P.B.,
180 S.W.3d 570, 573 (Tex. 2005); see Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).
We assume that the fact-finder settled any evidentiary conflicts in favor of its finding
if a reasonable fact-finder could have done so. J.P.B., 180 S.W.3d at 573. We
9
disregard all evidence that a reasonable fact-finder could have disbelieved, and we
consider undisputed evidence even if it is contrary to the finding. Id. That is, we
consider evidence favorable to the finding if a reasonable fact-finder could, and we
disregard contrary evidence unless a reasonable fact-finder could not. See id. The
fact-finder is the sole judge of the witnesses’ credibility and demeanor. In re J.O.A.,
283 S.W.3d 336, 346 (Tex. 2009).
We must perform “an exacting review of the entire record” in determining the
factual sufficiency of the evidence supporting the termination of a parent–child
relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the fact-finder’s findings and do not supplant them with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Here, we review the whole record to
decide whether a fact-finder could reasonably form a firm conviction or belief that the
Clarks proved the endangerment grounds. Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(E); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the fact-finder reasonably could form
such a firm conviction or belief, then the evidence is factually sufficient. C.H.,
89 S.W.3d at 18–19.
B. LAW ON ENDANGERMENT
Subsections (D) and (E) of Texas Family Code Section 161.001(b)(1) provide
that the trial court may order the termination of a parent’s rights if it finds by clear
and convincing evidence that a parent has
10
(D) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or emotional
well-being of the child; [or]
(E) 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)(D), (E).
Endanger means to expose to loss or injury, to jeopardize. Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.—Fort Worth 2003, no pet.). Under Subsection 161.001(b)(1)(D), it is necessary
to examine the evidence related to the environment of the child to determine if the
environment was the source of the endangerment to the child’s physical or emotional
well-being. J.T.G., 121 S.W.3d at 125. Conduct of a parent in the home can create an
environment that endangers the physical and emotional well-being of a child. Id. As
an example, “abusive or violent conduct by a parent or other resident of a child’s
home may produce an environment that endangers the physical or emotional well-
being of a child.” Id.
Under Subsection 161.001(b)(1)(E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical well-being was the direct result of
the parent’s conduct, including acts, omissions, or failures to act. See id.; see also Tex.
Fam. Code Ann. § 161.001(b)(1)(E). Termination under Subsection (E) must be
based on more than a single act or omission; a voluntary, deliberate, and conscious
course of conduct by the parent is required. J.T.G., 121 S.W.3d at 125. It is not
11
necessary, however, that the parent’s conduct be directed at the child or that the child
actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at 125. The specific
danger to a child’s well-being may be inferred from parental misconduct standing
alone. In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
“As a general rule, conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well-being of a child.” Id. Additionally, a
parent’s mental state may be considered in determining whether a child is endangered
if that mental state allows the parent to engage in conduct jeopardizing the child’s
physical or emotional well-being. Id. “Domestic violence, want of self[-]control, and
propensity for violence may be considered as evidence of endangerment.” In re
J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.). We
may consider conduct that occurred outside the child’s presence in our review.
Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied).
C. MOTHER’S ARGUMENT THAT WE SHOULD NOT CONSIDER CERTAIN OF THE
ENDANGERMENT EVIDENCE BECAUSE IT IS INADMISSIBLE HEARSAY
Before we detail the endangerment evidence, we must first address arguments
made by Mother that certain of the endangerment evidence constitutes inadmissible
hearsay. Mother contends that Mrs. Clark’s testimony regarding Mother’s slapping
Matthew, Mother’s making Matthew spend the night on the balcony in his underwear,
Mother’s throwing a chair at Samantha, and Mother’s making the Children spend long
12
periods of time at home alone is inadmissible hearsay. Mother also contends that
Father’s testimony that Mother slapped Matthew across the face is inadmissible
hearsay. The Clarks counter that Mother’s hearsay arguments are not preserved for
our review.
1. The Law Regarding Preservation
To preserve a complaint for appellate review, a party must present to the trial
court a timely request, objection, or motion that states the specific grounds for the
desired ruling if not apparent from the request’s, objection’s, or motion’s context.
Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this,
error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
The objecting party must also get a ruling—either express or implied—from the trial
court. Tex. R. App. P. 33.1(a)(2)(A), (b); see Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex.
2002). If the trial court refuses to rule, the party preserves error by objecting to that
refusal. Tex. R. App. P. 33.1(a)(2)(B). If the trial court does not rule and the party
does not object to the refusal to rule, error is not preserved. Id. Furthermore, any
error in admitting evidence is deemed harmless and is waived if the objecting party
later permits the same or similar evidence to be introduced without objection. Bay
Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235–36 (Tex. 2007); Volkswagen
of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004).
13
2. Mother Did Not Preserve Her Hearsay Complaints Regarding
Mrs. Clark’s Testimony
Mother argues that Mrs. Clark’s testimony regarding Mother’s slapping
Matthew, Mother’s making Matthew spend the night on the balcony in his underwear,
Mother’s throwing a chair at Samantha, and Mother’s making the Children spend long
periods of time at home alone is inadmissible hearsay. Mother points to the following
exchange:
Q. [By the Clarks’ counsel] Did [Samantha] make any outcries of
abuse to you that happened between the time CPS got out of the case in
2011 and when you and your husband got the children in 2017?
A. [Samantha] made outcries of neglect and abuse.
Q. What kind of neglect?
A. Long periods of time home alone, according to her, maybe a
week.
Q. Was it -- did she say whether or not it was dark outside?
A. It was overnight. It was several nights.
Q. And this was after CPS got out of the case?
A. Correct.
Q. And did [Matthew] make any statements as to abuse or
neglect that he personally endured between 2011 and 2017?
A. Yes.
Q. And what did he say?
[Mother’s counsel]: Object to hearsay.
14
[Trial Court]: If it’s an outcry, it’s not hearsay. Rephrase.
[The Clarks’ counsel]: Do you want me to rephrase?
[Trial Court]: Not that what you said, but --
[The Clarks’ counsel]: I was pretty --
Q. [By Clarks’ counsel] Did [Matthew] make any outcries of
abuse between -- that occurred between 2011 when CPS closed their
second case and when you got the children?
A. [Matthew] said that he was made to stay on the balcony
overnight in his underwear for receiving a bad grade.
...
Q. Did either of the children make allegations of physical abuse,
outcries of physical abuse?
A. [Samantha] did.
Q. And what did she say?
A. She said that a chair was thrown at her.
Q. And who threw the chair.
A. [Mother].
Q. Did the children make any outcries of physical abuse or
neglect for the periods that they were in foster care, the 2011 case?
A. About?
Q. Outcries of any abuse, as to why they came into care in 2011.
A. [Matthew] did not really discuss it. [Samantha] told me how
[Matthew] received the bruises on his face.
15
Q. Which are the -- would that be the same bruises that [Father]
testified --
A. Yes.
Q. -- that the CPS case was about?
A. Yes.
Q. And what was [Samantha’s] outcry as to how [Matthew]
received the bruises on his face?
A. That he got in trouble for bad behavior at school and that
[Mother] slapped him across the face.
Q. That she --
A. Slapped him across the face.
Q. Were there any outcries as to whether or not the slap across
the face left marks?
A. We saw the marks.
Q. Oh, because the children were placed with you?
A. Correct.
Mother contends that the trial court’s statement of “[i]f it’s an outcry, it’s not
hearsay[,] [r]ephrase,” to the sole objection lodged in the above excerpt somehow
preserved Mother’s hearsay argument on appeal as to the entire excerpt. We disagree.
Mother’s objection was lodged to the question, “And what did [Matthew] say?”
Rather than ruling on that objection, the trial court asked the Clarks’ counsel to
rephrase the question. The Clarks’ counsel then rephrased the question and asked
about specific instances of abuse, and Mother did not object to any of the questions
16
pertaining to those specific instances. Mrs. Clark thus testified—without objection—
regarding Mother’s slapping Matthew, Mother’s making Matthew spend the night on
the balcony in his underwear, Mother’s throwing a chair at Samantha, and Mother’s
making the Children spend long periods home alone. Because Mother did not object
to this testimony, Mother’s hearsay complaint is not preserved. See Tex. R. App. P.
33.1(a)(1)(A); Bushell, 803 S.W.2d at 712. Accordingly, we may consider this evidence
in our review. See Tex. R. Evid. 802 (“Inadmissible hearsay admitted without
objection may not be denied probative value merely because it is hearsay.”).
3. Mother Did Not Preserve Her Hearsay Complaint Regarding
Father’s Testimony
Mother also argues that Father’s testimony that Mother slapped Matthew
across the face was inadmissible hearsay and should not be considered in our review.
Mother points to the following exchange during the Clarks’ direct examination of
Father:
Q. And what reason were your children brought into foster care
in 2011?
A. The same ones, physical abuse and child neglect.
Q. Do you have any specifics on the physical abuse?
A. The main physical abuse was done to [Matthew] where
[Mother] had slapped him across the face and left a handprint on one
side of his face and caused damage to his eye.
[Mother’s counsel]: I’m gonna object to hearsay.
....
17
[Trial Court]: I’m gonna overrule that objection just for purposes
of the record.
Even if we assumed that Mother’s objection—which occurred after Father
gave his answer—was timely, Mother has waived any complaint regarding Father’s
testimony because, as mentioned above, Mrs. Clark testified—without objection—
that Samantha had told her that Mother had slapped Matthew across the face after he
got in trouble at school. Mrs. Clark then described—again without objection—how
Mother’s slap had left “marks” and “bruises” on Matthew’s face. Because evidence
relating to the slap was later admitted without objection, Mother has waived her
hearsay complaint regarding Father’s testimony relating to the slap. See Bay Area
Healthcare Grp., 239 S.W.3d at 235–36; Volkswagen of Am., 159 S.W.3d at 907.
Accordingly, we may consider this evidence in our review. See Tex. R. Evid. 802.
D. ENDANGERMENT ANALYSIS
Because the evidence pertaining to Subsections (D) and (E) is interrelated, we
conduct a consolidated review. In re S.H., No. 02-17-00188-CV, 2017 WL 4542859, at
*10 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op.); In re T.N.S.,
230 S.W.3d 434, 439 (Tex. App.—San Antonio 2007, no pet.).
Here, the record contains evidence that the Children were twice removed from
Mother’s care. The record reflects that the Children were first removed in April 2008
and not returned to Mother until March 2009. While Mother could not recall the
2008 removal, Father testified that the Children were removed because Mother had
18
left the Children alone in their apartment by themselves or had left them with friends
or neighbors who, unable to reach Mother, left the children unattended. Mother
admitted that she had left the Children alone on one occasion when she had to study
for a college exam although she could not recall whether it was that incident that led
to the 2008 removal.
The record reflects that the Children were removed from Mother’s care again
in April 2011 and not returned to Mother until February 2012. While Mother could
not remember why the Children were removed in 2011 and guessed that it was due to
a “housing situation,” Father testified that the Children were removed because
“Mother had slapped [Matthew] across the face and left a handprint on one side of his
face and caused damage to his eye.” Mrs. Clark, who became a foster parent to the
Children following the 2011 removal, testified that she had seen “marks” and
“bruises” on Matthew’s face and that Samantha had told her that Mother had slapped
Matthew across the face after he had gotten in trouble at school. Mother testified that
she could not remember whether she had slapped Matthew and could not remember
whether she had ever physically abused the Children.
The record also contained evidence that the Children had made outcries of
abuse and neglect to Mrs. Clark regarding incidents that had occurred sometime
between when the Department returned the Children to Mother following the 2011
removal and when the Children began living with the Clarks again in 2017. The
evidence reflects that Samantha told Mrs. Clark that she had been left for “[l]ong
19
periods of time home alone[,] . . . maybe a week” or at least “several nights.” The
evidence further reflects that Samantha told Mrs. Clark that Mother had thrown a
chair at her.7 The record also reflects that Matthew told Mrs. Clark that Mother had
made him “stay on the balcony overnight in his underwear for receiving a bad grade”
although Mother denied that that incident had occurred.
Finally, the record reflects that Mother had a compromised mental state.
Mother testified that she is bipolar and that she has “recall and memory issues” as a
side effect that impact “all domains of life.” At the termination hearing, Mother could
not recall seemingly important facts—such as whether the Children had been
removed in 2008, how many times the Children had been removed, whether she had
slapped Matthew across the face, whether there had ever been allegations of physical
abuse made against her, and whether she had ever physically abused the Children.
Mother also stated that at times she could not remember how to get to her college
classes that she had been attending on a daily basis, and she described an incident
where she was found sleeping in a faculty member’s office and could not recall how
she had arrived there. The record also reflects that Mother had multiple stays in a
psychiatric treatment facility in the two years prior to the termination hearing. She
testified that she had been in a psychiatric treatment facility in September 2019,
although she stated that she did not know how long she was in the facility or why she
7
Mother denied ever throwing “a table or a lamp” at Samantha.
20
was there. Mother’s boyfriend testified that he had taken her to the facility in
September 2019 because “she was talking a little bit off . . . a bit of nonsense” and
that “she wasn’t herself.” He also stated that she had been in the facility for over two
weeks pursuant to a court order. Mother’s boyfriend further testified that Mother had
been in a psychiatric treatment facility for two weeks during the summer of 2018.
Mother contends that this evidence, at best, amounts to “isolated event[s], not
a course of conduct.” We disagree. The record reflects evidence of abuse directed
against the Children by Mother both before and after the 2011 removal (two of which
occurred after something negative happened with respect to Matthew’s schooling),
and it further reflects a pattern of disregard for the Children’s physical and emotional
well-being both before and after the 2008 and 2011 removals. Each of these was not
a one-off incident. We further reject Mother’s argument that the outcry testimony
should be doubted because of the cordial8 relations between Mother and the Clarks
and because the Clarks did not report the alleged abuse to authorities; such an
argument goes to the witnesses’ credibility and demeanor, of which the fact-finder is
the sole judge. See J.O.A., 283 S.W.3d at 346. We also reject Mother’s argument that
the endangerment evidence pertained to events in the “distant past.” “A parent’s past
8
As gleaned from the record, the relationship between Mother and the Clarks
was largely cordial and friendly. Mrs. Clark would often offer words of
encouragement to Mother regarding the Children, Mother’s schooling, and Mother’s
finances, and on several occasions, Mrs. Clark invited Mother to participate in the
Clarks’ lives and the Children’s lives.
21
endangering conduct may support an inference that past conduct may recur and
further jeopardize the child’s present or future physical or emotional well-being.” See
In re M.P.B., No. 01-19-00973-CV, 2020 WL 3525447, at *8 (Tex. App.—Houston
[1st Dist.] June 30, 2020, pet. denied) (mem. op.). Nothing in the record indicates that
Mother’s past will remain there; to the contrary, the record reflects evidence of
endangerment at several points along Mother’s and the Children’s journey—in 2008,
in 2011, and in the years between 2011 and 2017.
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the fact-finder is the sole arbiter of the witnesses’
credibility and demeanor, we hold that there is some evidence of an endangering
environment on which a reasonable fact-finder could have formed a firm belief or
conviction that Mother had knowingly placed or had knowingly allowed the Children
to remain in conditions or surroundings that had endangered their emotional or
physical well-being and that there is some evidence of endangering conduct on which
a reasonable fact-finder could have formed a firm belief or conviction that Mother
had engaged in conduct that had endangered the Children’s physical or emotional
well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).
Giving due deference to the fact-finder’s endangering-environment and
endangering-conduct findings, without supplanting the fact-finder’s judgment with
our own, and after reviewing the entire record, we hold that a fact-finder could
reasonably form a firm conviction or belief that Mother had knowingly placed or had
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knowingly allowed the Children to remain in conditions or surroundings that had
endangered their emotional or physical well-being and that Mother had engaged in
conduct that had endangered the Children’s physical or emotional well-being. See Id.
§ 161.001(b)(1)(D), (E).
We overrule Mother’s first issue.
III. BEST INTEREST
In her second issue, Mother argues that the evidence was legally and factually
insufficient to support the trial court’s best-interest finding.
A. STANDARD OF REVIEW AND BEST-INTEREST FACTORS
We review Mother’s challenge to the sufficiency of the trial court’s best-interest
finding under the review standards stated regarding the conduct grounds. In
determining whether to support a best-interest finding, we review the entire record.
In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Although we generally presume that
keeping a child with a parent is in the child’s best interest, In re R.R., 209 S.W.3d 112,
116 (Tex. 2006), the best-interest analysis is child-centered, focusing on the child’s
well-being, safety, and development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018).
Evidence probative of a child’s best interest may be the same evidence that is
probative of a Subsection (b)(1) ground. E.C.R., 402 S.W.3d at 249; C.H., 89 S.W.3d
at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the evidence in
light of nonexclusive factors that the fact-finder may apply in determining the child’s
best interest:
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(A) the child’s desires;
(B) the child’s emotional and physical needs, now and in the future;
(C) the emotional and 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;
(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) (citations omitted); 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.
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 B. BEST-INTEREST ANALYSIS
With regard to the Children’s desires, the record reflects that they have bonded
to the Clarks, are happy living with the Clarks, and desire to be adopted by the Clarks.
The trial court was entitled to find that this factor weighed in favor of terminating
Mother’s parental rights to the Children.9
With regard to the Children’s emotional and physical needs now and in the
future and the emotional and physical danger to them now and in the future, the
record reflects that the Children are endangered in Mother’s care (as detailed in the
endangerment evidence above). In contrast to the evidence that the Children are
endangered while in Mother’s care, the record reflects that they are well cared for in
the Clarks’ care. Mother herself acknowledged that the Children are happy, safe, and
stable with the Clarks. The trial court was entitled to find that these factors weighed
in favor of terminating Mother’s parental rights to the Children.
With regard to the plan for the Children by the individuals seeking custody and
the stability of the home or proposed placement, the record reflects that Mother was
unemployed at the time of the termination hearing and had last worked approximately
eight months before the hearing. Mother further testified that she had “zero” dollars
9
In her brief, Mother acknowledges that this factor weighs “slightly in favor of
termination.”
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in her bank account and that her boyfriend paid the majority of her bills.10 Mother
stated that she was living in a one-bedroom apartment, that her plan if the children
were returned to her was to have the Children sleep in the bedroom while she slept
on the couch, and that the Children would need to change schools. The record
further reflects that the Children led unstable lives while in Mother’s care: twice the
Children were removed by the Department for lengthy periods, and in 2017, Mother
voluntarily placed the Children with the Clarks. The record also reflects that Mother
had multiple stays in a psychiatric treatment facility in the two years prior to the
termination hearing, and by her own admission, she suffers from “recall and memory
issues” that impact “all domains of life.” In contrast, the record reflects that the
Clarks had been feeding the Children, clothing them, providing for their education,
and providing for their medical and dental care since the Children’s placement with
them. Father testified that the Children were “happy[,] safe[,] and secure” at the
Clarks, and Mother testified that the Children were happy and doing well in school
and that the Clarks’ residence is safe and secure. The record further reflects that the
Clarks desire to adopt the Children and that the Children desire to by adopted by the
Clarks. The trial court was entitled to find that these factors weighed in favor of
terminating Mother’s parental rights to the Children.
10
The record did contain evidence that Mother had purchased Matthew clothes
on one occasion and had purchased the Children’s school supplies on another
occasion while they were living with the Clarks. Mrs. Clark further testified that
Mother provided the Children with cell phones and paid the bill.
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With regard to Mother’s acts or omissions indicating that the existing parent–
child relationship is not a proper one and any excuse for Mother’s acts or omissions,
the record reflects that the Children were removed in 2008 following an incident
where the Children were left unattended. The Children were later removed in 2011
following an incident where Mother slapped Matthew across the face. Mother did not
offer any excuse regarding those removals but instead stated that she did not
remember the 2008 removal and did not recall whether she had ever slapped Matthew
in the face. The trial court was entitled to find that this factor weighed in favor of
terminating Mother’s parental rights to the Children.
C. BEST-INTEREST CONCLUSION
Viewing the evidence in the light most favorable to the trial court’s best-
interest finding, we hold that a reasonable fact-finder could have reasonably formed a
firm conviction or belief that termination of the parent–child relationship between
Mother and the Children was in the Children’s best interest, and we therefore hold
that the evidence is legally sufficient to support the trial court’s best-interest finding.
See Tex. Fam. Code Ann. § 161.001(b)(2); J.P.B., 180 S.W.3d at 573. Based on our
exacting review of the entire record and giving due deference to the fact-finder’s
findings, we likewise conclude that the evidence is factually sufficient to support the
trial court’s best-interest finding. See C.H., 89 S.W.3d at 18–19. Accordingly, we
overrule Mother’s second issue.
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IV. MOTHER’S ATTACK ON THE TRIAL COURT’S JULY 26, 2019
TEMPORARY ORDER REQUIRING HER TO PAY CHILD SUPPORT
In her third issue, Mother complains about the trial court’s July 26, 2019
temporary order in which she was required to pay monthly child support of $657.25.
Mother asks us to remand the case to the trial court so that it can recalculate the
amount of support to be paid under that temporary order. Temporary orders that are
issued in a suit affecting the parent–child relationship are not appealable. Interest of
L.A., No. 02-16-00403-CV, 2017 WL 1289362, at *5 (Tex. App.—Fort Worth Apr. 6,
2017, no pet.) (mem. op.); In re J.W.L., 291 S.W.3d 79, 83 (Tex. App.—Fort Worth
2009, orig. proceeding). Mother’s complaint is an attempt to appeal a temporary
order in a suit affecting the parent–child relationship, a complaint that we do not have
jurisdiction to consider. See Interest of N.V.R., 580 S.W.3d 220, 225 (Tex. App.—Tyler
2019, pet. denied) (mem. op.) (“[T]his complaint relates to the February 2017
temporary child support order. Runnels did not challenge this order in a mandamus
proceeding[,] and it cannot now be challenged on appeal from the trial court’s
subsequent assessment of arrearages.”); L.A., 2017 WL 1289362, at *5 (“Mother’s
complaint is an attempt to appeal the temporary orders issued by the trial court on
October 15, 2015, a complaint which we do not have jurisdiction to consider.”). We
overrule Mother’s third issue.
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V. MOTHER’S COMPLAINT REGARDING ALLEGED
CHILD SUPPORT ARREARS
In her fourth issue, Mother argues that the trial court erred by assigning child
support arrears to the Clarks. Mother contends that a trial court has “very limited”
discretion with respect to child support arrears, that a trial court is to “ac[t] as a mere
scrivener in mechanically tallying up the amount of arrearage,” and that the trial court
allegedly did not do so here. See Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). As pointed out by the Clarks in their brief,
however, the trial court did not assign them child support arrears. Instead, the record
reflects that the trial court found that $4,138.68 in child support was on hold with the
Texas Attorney General’s Office stemming from child support payments made by
Father. The trial court found that this amount had accumulated while the Clarks had
primary possession of the Children.11 The trial court assigned the $4,138.68 that was
on hold to the Clarks and ordered the Texas Attorney General’s Office to release it to
them. We thus reject Mother’s contention that the trial court somehow erred by
assigning the Clarks child support arrears.12 To the extent that Mother is attempting
to argue something else with respect to the $4,138.68, such an argument is
11
A payment-record printout from the Texas Attorney General’s Office was
admitted into evidence and reflected that Father made fifty-two payments of $197.08
(totaling $10,248.16) between July 31, 2017, and July 15, 2019.
12
Arrears refer to amounts that are past due; here, there are no findings or
evidence that the amounts assigned to the Clarks were past due. We thus find that the
authorities cited by Mother pertaining to arrears are inapposite.
29
inadequately briefed. See Tex. R. App. P. 38.1(i); Sanders v. Future Com, Ltd., No. 02-
15-00077-CV, 2017 WL 2180706, at *7 (Tex. App.—Fort Worth May 18, 2017, no
pet.) (mem. op.) (“This court shall not resort to speculation or surmise to make [an
appellant’s] argument for him.”). We overrule Mother’s fourth issue.
VI. SEGREGATION OF ATTORNEY’S FEES
In her fifth issue, Mother argues that the trial court erred by awarding
attorney’s fees to the Clarks despite the Clarks’ failure to segregate attorney’s fees
between the relief sought against Mother and Father and between the various
conduct-ground theories sought against Mother. But Mother did not make these
arguments in the trial court. Because Mother asserts her segregation complaints for
the first time on appeal, she has waived them. See Tex. R. App. P. 33.1; Hruska v. First
State Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988) (holding that party opposing
award of attorney’s fees must object to failure to segregate fees in order to preserve
the issue for appellate review); Fritts v. McDowell, No. 02-16-00373-CV, 2017 WL
3821889, at *8 (Tex. App.—Fort Worth Aug. 31, 2017, pet. denied) (mem. op.)
(same); In re L.M.M., No. 03-04-00452-CV, 2005 WL 2094758, at *15 (Tex. App.—
Austin Aug. 31, 2005, no pet.) (mem. op.) (same). We overrule Mother’s fifth issue.
VII. CONCLUSION
Having overruled Mother’s five issues, we affirm the trial court’s termination
order.
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/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: October 15, 2020
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