In the Interest of R.A.B. Jr and M.M.G-B, Children v. the State of Texas ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
IN THE INTEREST OF § No. 08-22-00247-CV
R.A.B. Jr and M.M.G.-B., § Appeal from the
Children. § 394th Judicial District Court
§ of Brewster County, Texas
§ (TC# FMB21570)
MEMORANDUM OPINION
Appellant J.G. appeals the trial court’s judgment terminating her parental rights and
appointing the Department of Family and Protective Services (DFPS) as sole managing
conservator of her children, R.A.B. Jr and M.M.G.-B. 1 Such parental rights were terminated on
predicate grounds of child endangerment, failure to comply with a family service plan, and the
unlawful use of a controlled substance. See TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (O),
and (P). Along with these grounds, the trial court also determined both, such termination of rights
was in the children’s best interest, and that DFPS should be appointed the children’s permanent
managing conservator. See id. §§ 161.001(b)(2), 161.207. In six issues on appeal, J.G. challenges
1
To protect the privacy of the parties, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d);
TEX. R. APP. P. 9.8(a), (b)(2).
the legal and factual sufficiency of the evidence to support the predicate grounds for termination,
the finding regarding the children’s best interest, and the conservatorship appointment. We affirm
the trial court’s judgment.
I. BACKGROUND
DFPS filed an original petition on June 4, 2021. The same day, the trial court ordered the
removal of both children and named DFPS their temporary managing conservator.
A. Trial testimony
A bench trial was held in November 2022, wherein DFPS sought to terminate J.G. and the
children’s father’s parental rights as to both children. 2 R.A.B. Jr and M.M.G.-B. were thirteen and
twelve years old, respectively. At trial, the evidence centered on J.G.’s ongoing drug use, lack of
participation in court-ordered services, and the children’s current placements and needs. Key
witness testimony is summarized below.
(1) The caseworker’s testimony
DFPS caseworker Melin Hernandez testified that DFPS began an investigation after
receiving a report alleging that J.G. and her partner were at a known drug house with R.A.B. Jr
and M.M.G.-B. The reporter further alleged that J.G.’s partner was seen blowing into the children’s
faces. During the ensuing investigation, the children were each administered a court ordered hair
follicle drug test. R.A.B. Jr’s drug test results were positive for amphetamines and
methamphetamine, which are penalty group 1 narcotics. TEX. HEALTH & SAFETY CODE ANN.
§ 481.102. M.M.G.-B.’s drug test results were similarly positive for methamphetamine. DFPS then
sought the immediate removal of the children from J.G.’s custody, which the court ordered. J.G.’s
2
The children’s father did not appeal the trial court’s order and is not a party to the present appeal.
2
in-person visitation was suspended until she submitted a clean drug test. Additionally, the court
named DFPS as the children’s temporary sole managing conservator.
In July 2021, J.G. undertook a hair follicle drug test which was positive for amphetamines
and methamphetamine metabolite. J.G. claimed the results were not accurate because the specimen
was taken with dirty scissors. Hernandez discussed the family service plan with J.G. The family
service plan required J.G. to take the following actions or receive the following services: to attend
parenting classes; to submit to random drug testing to demonstrate sobriety; to undergo a
psychological evaluation and to follow recommendations; to permit an OSAR assessment
regarding substance abuse and to follow recommendations; and to receive a psychiatric evaluation.
J.G. was partially compliant with the family service plan. She underwent a psychological
evaluation and OSAR assessment. J.G. attended and was discharged from the OSAR
recommended outpatient treatment program.
J.G. partially complied with random drug testing but failed to demonstrate sobriety. In
October 2021, J.G. underwent a hair follicle drug test that was positive for amphetamines and
methamphetamine. In December 2021, J.G. missed a urine drug test, claiming she lacked
transportation. In February 2022, J.G. missed another drug test. In March 2022, J.G. underwent a
hair follicle drug test that was positive for amphetamines and methamphetamine. In June 2022,
J.G. underwent a urine drug test that was positive for amphetamines and methamphetamine. When
confronted with the positive results, J.G. denied all drug use.
In July 2022, the trial court ordered J.G. to attend in-patient drug rehabilitation. J.G. did
not comply with this order. J.G. claimed she was unable to attend the program because she cared
for her elderly and sick mother. In October 2022, J.G. underwent a urine drug test in which she
3
tested positive for amphetamines and methamphetamine. Hernandez generally described that J.G.
denied she had a substance abuse issue throughout the pendency of the case.
Although J.G. was unable to have in-person visitation with the children, Hernandez further
testified she continued to be involved with them through virtual visitations. Those visits appeared
positive for the children.
Hernandez also testified the children’s father reported that he did not have much contact
with them before the case began. The father and J.G. lived in separate households. Hernandez
noted that he was not implicated in the initial allegations that began DFPS’s investigation. In
November 2021, however, the father was arrested and remained in jail awaiting placement in a
drug rehabilitation program for several months. In August 2022, the father was released from jail
after having completed the drug rehabilitation program. Hernandez noted that the father’s contact
with the children throughout the case had been positive but inconsistent. Hernandez reported that
the father expressed that he was not then able to provide what the children needed, but nonetheless,
he wanted what was best for them.
Regarding the children, Hernandez testified that R.A.B. Jr was currently placed in an
emergency shelter. Current plans are for him to be placed for adoption should the court ultimately
appoint the DFPS as permanent managing conservator. Hernandez admitted, however, that R.A.B.
Jr expressed he was adamantly opposed to being adopted. Hernandez also testified that DFPS
hoped to reduce R.A.B. Jr’s need for medication through therapy. Hernandez testified that
M.M.G.-B. was currently placed in a foster home and, should she remain in DFPS’s permanent
managing conservatorship, it planned for her to remain in the same foster home and, eventually,
be similarly adopted. DFPS also planned for M.M.G.-B. to continue with ongoing therapy.
4
Ultimately, Hernandez testified that J.G. failed to modify the behavior that led to “the
removal of her children because it was drug use mainly, and she continued to test positive.”
Hernandez opined that terminating J.G.’s parental rights was in the children’s best interest.
(2) The counselor’s testimony
Corine Dominguez, the licensed chemical dependency counselor who provided outpatient
services to J.G., testified that J.G. was referred to the outpatient program because of the OSAR
assessment. J.G. was admitted to the outpatient program on October 12, 2021. This program
required her to complete ten to twelve individual sessions. Although not required, Dominguez also
encouraged J.G. to attend group therapy. J.G. did not attend any group therapy sessions in the
outpatient program. J.G. completed the required individual sessions and was discharged as
maximum benefit achieved on February 23, 2022.
Dominguez testified the OSAR assessment was based on self-reporting and the outpatient
program did not perform any drug testing. J.G. reported to Dominguez that, at the time of
discharge, she had been sober for eight months. The plan Dominguez used for J.G. would have
been significantly different had she admitted to active drug use.
(3) The CASA volunteer’s testimony
Pabla Gonzalez, a child advocate, testified that she was assigned to the case approximately
three weeks before trial. Gonzalez met with both children and reviewed documentation before trial.
Gonzalez testified that she had sufficient information to formulate an opinion on the day of trial.
Gonzalez opined that termination of parental rights was in the best interest of the children.
She stated J.G. did not complete her required services and that maintaining contact between J.G.
and the children would require them to receive more therapy in the future. Gonzalez testified
R.A.B. Jr was hesitant towards adoption, but M.M.G.-B. expressed no issues with adoption.
5
(4) J.G.’s testimony
J.G. testified that she visited the children for an hour twice a week. On top of official
visitation, she occasionally exchanged messages with M.M.G.-B. through Instagram. J.G. testified
she wanted the children to return home, and they have told her they wanted the same. J.G. opined
that termination of parental rights was not in the best interests of her children.
(5) The healthcare providers’ testimony
Danielle Fisher, R.A.B. Jr’s psychiatric nurse practitioner, testified she had been providing
R.A.B. Jr with medication management since May 2022. Fisher performed a psychiatric evaluation
on R.A.B. Jr. Based on her evaluation, she prescribed medication, a stimulant for R.A.B. Jr., to
address his attention deficit disorder. Fisher testified that “there is always a concern” when a
stimulant is prescribed to a child in a household with a known drug user. During her treatment of
R.A.B. Jr., Fisher added a mood stabilizing medication because R.A.B. Jr had incidents of
aggression. At the time of trial, R.A.B. Jr was doing well on his medications.
Fisher also testified the treatment goals for R.A.B. Jr included individual therapy and case
management to teach him coping skills. As R.A.B. Jr learned coping skills, Fisher described that
she would taper him off and eventually discontinue the medications. Until he received significant
therapy, however, Fisher believed R.A.B. Jr needed the medication. Fisher testified there was a
concern that without medication R.A.B. Jr would revert to engaging in aggressive behaviors.
Kesia Flores, R.A.B. Jr’s group therapist, testified R.A.B. Jr was admitted to outpatient
services on August 24, 2022. R.A.B. Jr’s treatment plan focused on mood dysregulation, violence
risk, trauma, and risk of self-mutilation. The goal of therapy was to build R.A.B. Jr’s self-
awareness, coping skills, and self-processing of his experiences, thoughts, and emotions. R.A.B.
6
Jr was discharged from outpatient services on October 14, 2022. After discharge, he was referred
to an after-care provider.
Lizette Munoz, M.M.G.-B.’s counselor, testified she provides M.M.G.-B. cognitive
behavior therapy every two weeks. Munoz testified M.M.G.-B. had unhealthy thinking styles
which they were addressing through therapy. Specifically, Munoz was working to build
M.M.G.- B’s self-esteem and self-confidence. In her therapy, M.M.G.-B. discussed her
relationships. According to Munoz, “[t]here was really no impact from Mother on [M.M.G.-B.]”
Munoz added that she did not believe there was a strong emotional connection between M.M.G.-
B. and J.G.
Munoz testified her therapy would continue, specifically working on M.M.G.-B.’s
assertive communication and adjusting her interactions with R.A.B. Jr. Munoz did not believe it
was appropriate to place the children together until M.M.G.-B. was able to assert and empower
herself.
B. The trial court’s ruling
At the close of evidence, the trial court terminated J.G.’s parental rights to both children,
finding clear and convincing evidence supported termination based on subsections (D), (E), (O),
and (P) of § 161.001(b)(1) of the Texas Family Code. The trial court also found that terminating
J.G.’s parental rights was in each child’s best interest. The trial court did not terminate the
children’s father’s parental rights. Lastly, the trial court named DFPS the permanent managing
conservator of the children.
J.G.’s appeal followed.
7
II. ISSUES ON APPEAL
In six issues, J.G. challenges the legal and factual sufficiency of the evidence to sustain
termination on each of the statutory predicates, to sustain the trial court’s finding that termination
was in the best interest of the children, and to sustain the trial court’s appointment of DFPS as the
children’s permanent managing conservator. Although we alter the presentation order, we address
each issue in turn.
III. DISCUSSION
This case addresses the natural rights of a parent to their children, which are of a
constitutional magnitude but not absolute. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). A court
may order termination of the parent-child relationship if it finds by clear and convincing evidence:
(1) that the parent has committed one or more of the acts specifically set out in § 161.001(b)(1) of
the Texas Family Code; and (2) that termination is in the best interest of the child. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(A)–(U), (b)(2); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
Evidence is clear and convincing if it is of “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.
While the existence of one predicate ground is sufficient to uphold the termination of
parental rights, a court must always review, as part of due process, the sufficiency of findings
under subsections (D) and (E). In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). This is required
because either of those two findings can affect a parent’s parental rights to their other children. Id.“[T]he reviewing court must undertake ‘an exacting review of the entire record with a healthy
regard for the constitutional interests at stake.’” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014)
(quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)).
8
A. Standard of review
In a legal sufficiency challenge to a parental termination, the court of appeals “must take
into consideration whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the matter on which the State bears the burden of proof.” In
re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002). A reviewing court should consider all the evidence
in the light most favorable to the finding. Id. Considering evidence in the light most favorable
means “a reviewing court must assume that the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so.” Id. While any evidence contrary to the findings
which a reasonable factfinder could have disbelieved is disregarded, the reviewing court should
not disregard undisputed facts. Id.In a factual sufficiency challenge to a parental termination, a finding must be upheld “if
the evidence is such that a reasonable jury could form a firm belief or conviction that grounds exist
for termination under Texas Family Code sections 161.001 and 161.206(a).” In re C.H., 89 S.W.3d
17, 18-19 (Tex. 2002). The reviewing court must consider all evidence the factfinder could
reasonably have found to be clear and convincing. In re K.A.C., 594 S.W.3d 364, 372
(Tex. App.— El Paso 2019, no pet.). When considering disputed evidence, a reviewing court must
consider whether a reasonable factfinder could not have resolved that dispute in favor of its
findings. Id. If such disputed evidence is so significant a factfinder could not have reasonably
formed a firm belief of conviction, then the evidence is factually insufficient. Id.B. The predicate grounds for termination
In her first four issues, J.G. challenges the trial court’s findings that clear and convincing
evidence supported the termination of her parental rights based on the predicate grounds in
subsections (D), (E), (O), and (P) of § 161.001(b)(1) of the Texas Family Code.
9
(1) The endangerment predicate findings
In her first two issues, J.G. challenges the sufficiency of the evidence to support the trial
court’s termination findings under subsections (D) and (E), respectively. Both grounds involve
allegations of endangerment. TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). Relative to these
subsections, endangerment means “to expose to loss or injury or to jeopardize a child’s emotional
or physical health.” Doyle v. Tex. Dep’t Protective Regul. Servs., 16 S.W.3d 390, 394 (Tex. App.—
El Paso 2000, pet. denied). Endangerment means more than a threat of metaphysical injury or the
possible ill effects of an unideal family environment. Id. It is not, however, necessary that the
conduct be directed at the child or that the child suffer actual injury. Id. The bulk of the evidence
presented at trial focused upon subsection (E). For that reason, we first address subsection (E).
(a) The subsection (E) predicate finding
J.G.’s second issue challenges the sufficiency of the evidence to support the trial court’s
termination finding under subsection (E) of § 161.001(b)(1). To terminate parental rights under
subsection (E), a trier of fact must find by clear and convincing evidence that the parent “engaged
in conduct or knowingly placed the child with persons who engaged in conduct which endangers
the physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
Under subsection (E), DFPS must prove the parent’s conduct, including their omissions and failure
to act, endangered the child. Doyle, 16 S.W.3d at 395. For termination under subsection (E), a
voluntary, deliberate, and conscious course of conduct by the parent is required. In re S.R., 452
S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Under subsection (E), the
endangering course of conduct may occur either before or after the child is removed by the State.
In re K.A.C., 594 S.W.3d at 372.
10
A parent’s use of illegal drugs and the effect on her life and parenting ability may establish
an endangering course of conduct under subsection (E). In re J.O.A., 283 S.W.3d 336, 346
(Tex. 2009); In re K.A.C., 594 S.W.3d at 373; In re S.R., 452 S.W.3d at 361. “Further, evidence
that the parent continued to use illegal drugs even though the parent knew her parental rights were
in jeopardy is conduct showing a voluntary, deliberate, and conscious course of conduct, which by
its nature, endangers a child’s well-being.” In re K.A.C., 594 S.W.3d at 373. To support a parental
termination, a parent’s illegal drug use must have a causal connection to the alleged endangerment
of the child. Interest of L.C.L., 599 S.W.3d 79, 84 (Tex. App.—Houston [14th Dist.] 2020,
pet. denied).
Here, both children underwent hair follicle drug testing, and they both tested positive for
methamphetamine. The children were then removed from J.G.’s custody and DFPS became their
temporary sole managing conservator. After removal, J.G. also underwent a hair follicle drug test
and her results proved positive for amphetamines and methamphetamine metabolite.
Thereafter, J.G. was ordered to undergo random drug tests to demonstrate sobriety. In
October 2021, J.G. underwent a hair follicle drug test that was positive for amphetamines and
methamphetamine. J.G. missed a drug test in December 2021 and another in February 2022. In
March 2022, J.G. underwent a hair follicle drug test that was positive for amphetamines and
methamphetamine. In June 2022, J.G. underwent a urine drug test that was positive for
amphetamines and methamphetamine. Finally, in October 2022, J.G. underwent a urine drug test
that was positive for amphetamines and methamphetamine. Throughout the pendency of this case,
J.G. continued to use methamphetamine despite the trial court’s order requiring a clean drug test
before she could have in-person visitation with the children. Further, J.G. was aware that continued
drug use throughout the pendency of this case could result in the termination of her parental rights.
11
Viewing the evidence with the appropriate standards, we find that, the evidence presented
could lead a reasonable trier of fact to determine that J.G.’s drug use endangered R.A.B. Jr and
M.M.G.-B.; and such use exposed the children to drugs such that R.A.B Jr. was positive for
amphetamines and methamphetamine and M.M.G.-B. was positive for methamphetamine. A
reasonable factfinder could determine R.A.B. Jr and M.M.G.-B.’s positive drug tests were caused
by J.G.’s drug use.
Despite being ordered by the trial court to address substance abuse issues, J.G. continued
to use drugs throughout the pendency of this case. From the evidence admitted at trial, the trial
court could reasonably conclude that J.G. used drugs prior to the removal and endangered the well-
being of her children. Further the trial court could reasonably conclude that J.G. would continue
to use drugs and endanger the children’s well-being in the future. See K.A.C., 594 S.W.3d at 373
(holding that a reasonable factfinder could determine that a parent’s positive drug tests during the
pendency of the case indicate the parent would continue to use illegal drugs and endanger the
children in the future).
J.G. argues the drug test results are all suspect and unreliable. The drug tests results were
admitted at trial without objection. The only issue raised at trial was a typo in J.G.’s October 2022
test results. After the trial court opined that such deficiency would go to the weight of such
evidence, J.G. withdrew her objection. Because J.G. did not raise her objections at trial, they are
waived on appeal. TEX. R. APP. P. 33.1.
J.G. also argues that DFPS has endangered R.A.B. Jr through the conservatorship. The
focus of subsection (E) is on the conduct of the parent whose parental rights are being terminated,
not on DFPS. See TEX. FAM. CODE ANN. §161.001(b)(1) (listing the predicate grounds to terminate
the parent-child relationship).
12
Therefore, viewing the evidence with deference to the factfinder’s conclusions and
indulging every reasonable inference, we hold there is legally sufficient evidence to support the
trial court’s finding that J.G. engaged in a course of conduct endangering to the children’s physical
and emotional well-being under subsection (E). Accordingly, we find that the evidence is legally
sufficient to support the trial court’s finding.
Further, we conclude that after considering all the evidence, the evidence presented permits
a reasonable factfinder to form a firm belief or conviction that J.G. engaged in an endangering
course of conduct. Therefore, there is factually sufficient evidence to support the trial court’s
predicate finding under subsection (E) of § 161.001(b)(1) of the Family Code.
We overrule J.G.’s second issue.
(b) The subsection (D) predicate finding
J.G.’s first issue challenges the sufficiency of the evidence to support the trial court’s
termination finding under subsection (D) of § 161.001(b)(1). To terminate parental rights under
subsection (D), a trier of fact must find by clear and convincing evidence that the parent
“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); Doyle, 16 S.W.3d at 394. The environment in which a child is placed includes
both the suitability of the child’s living conditions and the conduct of parents or other persons who
are regularly placed within the child’s home. M.V. v. Tex. Dept. Fam. Protective Servs., 446
S.W.3d 879, 889 (Tex. App.—El Paso 2014, no pet.). Subsection (D) focuses upon the children’s
environment before they are removed. In re I.D.G., 579 S.W.3d 842, 850 (Tex. App.—El Paso
2019, pet. denied); In re S.R., 452 S.W.3d at 360.
13
At trial, Hernandez, the DFPS case worker, testified DFPS began its investigation after
receiving allegations that J.G. and her partner had been with the children in a known drug house.
The allegation further stated that J.G.’s partner had blown air into the children’s faces and mouths.
As part of the subsequent investigation, the children underwent a court-ordered hair follicle drug
test. R.A.B. Jr tested positive for amphetamines and methamphetamine. M.M.G.-B. tested positive
for methamphetamine. Following the positive drug tests, the children were removed from J.G.’s
care. Hernandez testified that upon removal, the children had lice in their hair, they had missed
several immunizations, and they both had multiple cavities.
Viewing all the evidence in the light most favorable to the trial court’s judgment and
recognizing that the factfinder is the sole arbiter of the witnesses’ credibility and demeanor, we
hold there is legally sufficient evidence to support the trial court’s finding that J.G. knowingly
placed the children in an environment that endangered their physical and emotional well-being
under subsection (D). See TEX. FAM. CODE ANN. § 161.001(b)(1)(D); Interest of M.D.M., 579
S.W.3d 744, 766 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (determining that evidence of a
drug use in the children’s presence is relevant to the children’s living environment and conditions).
Accordingly, we find that the evidence is legally sufficient to support the trial court’s finding.
Further, we conclude that after considering all the evidence, the evidence presented at trial permits
a reasonable factfinder to form a firm belief or conviction that J.G. knowingly placed the children
in an environment that endangered their physical and emotional well-being. Therefore, there is
factually sufficient evidence to support the trial court’s predicate finding under subsection (D) of
§ 161.001(b)(1) of the Family Code.
We overrule J.G.’s first issue.
(2) The remaining predicate findings
14
J.G.’s third and fourth issues challenge the sufficiency of the evidence to support the trial
court’s termination finding under subsections (O) and (P). Because we find sufficient evidence
supports the trial court’s termination findings under (D) and (E), we recognize that we have
discretion to avoid analysis of the remaining predicate findings. See In re L.D.C., 622 S.W.3d 63,
70 (Tex. App.—El Paso 2020, no pet.) (declining to address additional grounds based on
TEX. R. APP. P. 47.1 where (D) and (E) were found sufficient). Here, however, we decline to
exercise that discretion because we conclude the remaining grounds provide further context
relevant to the best interest analysis under J.G.’s fifth issue.
(c) The subsection (O) predicate finding
J.G.’s third issue challenges the sufficiency of the evidence to support the trial court’s
termination finding under subsection (O) of § 161.001(b)(1). To terminate parental rights under
subsection (O), a trier of fact must find by clear and convincing evidence that the parent:
failed to comply with the provisions of a court order that specifically established
the actions necessary for the parent to obtain the return of the child who has been
in the permanent or temporary managing conservatorship of the Department of
Family and Protective Services for not less than nine months as a result of the
child’s removal from the parent under Chapter 262 for the abuse or neglect of the
child[.]
TEX. FAM. CODE ANN. § 161.001(b)(1)(O). Here, the trial court terminated J.G.’s parental rights
after R.A.B. Jr and M.M.G.-B. were in the temporary managing conservatorship of DFPS for 18
months.
i. Abuse and neglect
J.G. argues the children were not removed from her care under Chapter 262 for either abuse
or neglect. The Texas Supreme Court has held that in subsection (O) the phrase “removal under
chapter 262 for abuse or neglect” is used broadly. In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013).
Under Chapter 262, abuse and neglect includes the risks of a child’s environment. Id. “If a parent
15
has neglected, sexually abused, or otherwise endangered her child’s physical health or safety, such
that initial and continued removal are appropriate, the child has been ‘remov[ed] from the parent
under Chapter 262 for the abuse or neglect of the child.’” Id. (citing TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O) (alteration in the original)).
As discussed above, there is legally and factually sufficient evidence that J.G. herself
engaged in conduct or knowingly placed the children with persons who engaged in conduct which
endangered the physical or emotional well-being of R.A.B. Jr and M.M.G.-B. The children’s
positive drug tests coupled with J.G.’s continued drug use endanger the children’s health such that
continued removal is appropriate. Considering all the evidence in the light most favorable to the
finding, a reasonable factfinder could have formed a firm belief or conviction that the children
were removed for neglect or abuse under Chapter 262. Further, considering all evidence the
factfinder could have reasonably found by clear and convincing evidence that the children were
removed for neglect or abuse under Chapter 262.
ii. Failure to comply with a court order
DFPS developed a family service plan which required J.G. to undergo random drug testing
to demonstrate sobriety. J.G. failed to demonstrate sobriety because she missed several drug tests,
and the results of each submitted test was positive for amphetamines and methamphetamine.
Further, in July 2022, the trial court ordered J.G. attend in-patient drug rehabilitation. J.G. did not
comply with this order.
J.G. argues that she complied with the July 2021 family service plan and the plan was never
amended. In the July 2022 order, however, the trial court ordered, “that the plan of service issued
by this Court shall continue in full force and effect subject to the following modifications: [J.G.]
is ORDERED to participate in and attend in-patient drug rehabilitation.”
16
J.G. does not dispute that she failed to attend in-patient drug rehabilitation but instead
argues she was unable to attend due to impossibility. She attempts to raise the statutory affirmative
defense of § 161.001(d) and argues termination cannot be ordered under subsection (O). See
TEX. FAM. CODE ANN. § 161.001(d) (prohibiting termination under subsection (O) when a parent
proves by preponderance of evidence that “(1) the parent was unable to comply with specific
provisions of the court order; and (2) the parent made a good faith effort to comply with the order
and the failure to comply with the order is not attributable to any fault of the parent”). The parent
attempting to raise § 161.001(d) carries the burden of proof to establish its applicability. Interest
of L.E.R., 650 S.W.3d 771, 788-89 (Tex. App.—Houston [14th Dist.] 2022, no pet.). J.G. did not
raise this affirmative defense at trial. Further, J.G.’s argument at trial did not mention or explain
any excuse or reason for her failure to complete the court ordered requirements. We find this
defense was waived because J.G. did not raise it at trial and provided no evidence to support the
defense. See Interest of D.L.W., No. 14-22-00654-CV, 2023 WL 1460548, at *5
(Tex. App.— Houston [14th Dist.] Feb. 2, 2023, no pet. h.) (mem.op.) (“the defense cannot be
raised for the first time on appeal”).
Therefore, we hold that legally and factually sufficient evidence supports the trial court’s
finding that J.G. failed to comply with the provisions of a court order that specifically established
the actions necessary for her to obtain the return of R.A.B. Jr and M.M.G.-B., who had been in the
temporary managing conservatorship of DFPS for not less than nine months because of the
children’s removal under Chapter 262 for abuse and neglect. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(O).
We overrule J.G.’s third issue.
(d) The subsection (P) predicate finding
17
J.G.’s fourth issue challenges the sufficiency of the evidence to support the trial court’s
termination finding under subsection (P) of § 161.001(b)(1). To terminate parental rights under
subsection (P), a trier of fact must find by clear and convincing evidence that the parent has:
used a controlled substance, as defined by Chapter 481, Health and Safety Code, in
a manner that endangered the health or safety of the child, and: (i) failed to complete
a court-ordered substance abuse treatment program; or (ii) after completion of a
court-ordered substance abuse treatment program, continued to abuse a controlled
substance.
TEX. FAM. CODE ANN. § 161.001(b)(1)(P).
Subsection (P) requires specific proof that the parent used a control substance in a manner
that endangered the child’s health and safety. In re J.E.H., 384 S.W.3d 864, 871
(Tex. App.— San Antonio 2012, no pet.). As discussed above, J.G.’s use of drugs during the
pendency of this case coupled with the children’s positive drug test results provide specific proof
that J.G. used a controlled substance in a manner that endangered the health or safety of the
children. In July 2022, the trial court ordered J.G. to attend in-patient treatment. J.G. did not
comply with this order.
Therefore, legally and factually sufficient evidence supported the trial court’s findings that
J.G. used drugs in a manner that endangered the health and safety of R.A.B. Jr and M.M.G.-B. and
she failed to complete a court-ordered substance abuse program.
We overrule J.G.’s fourth issue.
(C) The children’s best interest
J.G.’s fifth issue challenges the sufficiency of the evidence to support the trial court’s
finding on the children’s best interest. A trial court cannot order termination of parental rights
based only on the existence of a predicate ground; the termination must also be in a child’s best
interest. Interest of G.C.S., 657 S.W.3d 114, 133 (Tex. App.—El Paso, pet. filed). There is a strong
18
but rebuttable presumption that it is in the child’s best interest to preserve the parent-child
relationship. In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). When
analyzing the best interests of the child, we consider the Holley factors:
(A) the desires of the child; (B) the emotional and physical needs of the child 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 best interest of the
child; (F) the plans for the child by these individuals or by the agency seeking
custody; (G) the stability of the home or proposed placement; (H) the acts or
omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one; and (I) any excuse for the acts or omissions of the
parent.
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). “While no one factor is controlling, analysis
of a single factor may be adequate in a particular factual situation to support a finding that
termination is in the best interests of the child.” In Interest of J.M.T., 519 S.W.3d 258, 268
(Tex. App.—Houston [1st Dist.] 2017, pet. denied) (citing In re A.P., 184 S.W.3d 410, 414
(Tex. App.—Dallas 2006, no pet.).
(1) The children’s desires
At the time of trial, R.A.B. Jr was thirteen years old. Hernandez testified that R.A.B. Jr was
adamantly opposed to being adopted and wanted to remain with J.G. R.A.B. Jr wanted to maintain
access to J.G. Further, J.G. testified that R.A.B. Jr had told her he wants to go home with her.
At the time of trial, M.M.G.-B. was twelve years old. Hernandez testified that M.M.G.-B.
felt comfortable being adopted and she desired to go home to be with her grandmother, not J.G.
M.M.G.-B. wanted to maintain access to J.G. J.G. testified that M.M.G.-B. had told her she also
wants to go home with her.
Both children indicate a desire, to varying degrees, to maintain some contact with J.G.
Therefore, we determine this factor weighs against the best interest finding.
19
(2) The emotional and physical needs of the children as well as their exposure
to emotional and physical danger
We consider each child’s needs individually. Flores and Fisher testified that R.A.B. Jr has
needed medication and therapy to manage aggression and attention deficit disorder. According to
his treatment providers, R.A.B. Jr requires continued medication and therapy. Flores testified that
because one of R.A.B. Jr’s medications is a stimulate, there is a concern for abuse if he is placed
in a household with a known drug user.
Munoz testified that M.M.G.-B was currently receiving cognitive behavior therapy to
adjust her unhealthy thinking styles. During the therapy, M.M.G.-B. was working to adjust her
interactions with R.A.B. Jr and improve her assertive communication. Munoz testified that the
children should not be placed together at this time because M.M.G.-B. required more counseling
to form a healthy relationship with her brother.
In terms of physical and emotional danger to the children, “a fact finder may infer [the]
past conduct endangering the well-being of a child may recur in the future if the child is returned
to the parent.” Interest of O.E.R., 573 S.W.3d 896, 907 (Tex. App.—El Paso 2019, no pet.) (citing
In re R.A.G., 545 S.W.3d 645, 653 (Tex. App.—El Paso 2017, no pet.); In re D.L.N., 958 S.W.2d
934, 939 (Tex. App.—Waco 1997, pet. denied)). As discussed in the section analyzing parental
termination under the endangerment predicate findings, there is evidence of past endangering
conduct and environment. Specifically, the children’s drug test results were positive for
methamphetamine. J.G. continued to use amphetamines and methamphetamine throughout the
pendency of this case despite the trial court’s order denying her in-person visitation without a clean
drug test. Further, J.G. continued to use amphetamines and methamphetamine knowing it could
result in termination of her parental rights.
20
It is further relevant, that J.G. and the children tested positive for methamphetamine—a
Penalty Group 1 narcotic. TEX. HEALTH & SAFETY CODE ANN. § 481.102(6). Methamphetamine
is a “hard drug,” unlike marijuana, for example, and carries greater risk of danger and
incarceration. Cf. Interest of M.A.J., 612 S.W.3d 398, 414 (Tex. App.—Houston [1st Dist.] 2020,
pet denied) (determining that the children’s current and future needs and danger factors weighed
only slightly in favor of termination when the parent tested positive for amphetamines and
methamphetamine only once at the outset of the case but continued to test positive for marijuana
throughout). Based on the evidence of record, the trial court could have determined that J.G. would
continue to endanger the well-being of the children.
These two factors weigh in favor of the best interest finding.
(3) Parenting abilities and programs available to assist
When reviewing parenting abilities, a factfinder may consider the parent’s past neglect or
inability to meet the physical and emotional needs of the children. Interest of O.E.R., 573 S.W.3d
at 907-08. As previously discussed, the children’s positive drug tests coupled with J.G.’s continued
drug use are evidence of J.G.’s past neglect of the physical and emotional needs of the children.
Although J.G. continued to be involved with the children through the pendency of this case, her
continued drug use and failure to attend court-ordered inpatient substance abuse treatment could
lead a reasonable trier of fact to conclude she had poor parenting abilities.
J.G. argues DFPS has shown poor parenting abilities because of R.A.B. Jr’s reported
weight loss. On August 21, 2022, R.A.B. Jr reported severe weight loss of 30 pounds in one year,
and on that day, he weighed 97 pounds. J.G. did not provide any explanation of R.A.B. Jr’s weight
before removal or question any witness on this notation within RA.B.’s medical records. Further,
in response to the report of weight loss, his caregivers were instructed to provide double portions
21
of food and to supplement with multivitamins. For these reasons, a trial court could determine
DFPS reacted appropriately to R.A.B. Jr’s reported weight loss under the circumstances.
When reviewing the availability of programs to assist a parent, the trial court may consider
that the parent failed to comply with the court ordered service plan for reunification of the child.
Interest of G.C.S., 657 S.W.3d at 135. In July 2022, the trial court ordered J.G. to attend in-patient
drug rehabilitation. J.G. did not comply with this order. J.G.’s failure to demonstrate sobriety and
attend the court-ordered in-patient drug rehabilitation could lead a reasonable trier of fact to
conclude she is unwilling to take advantage of services offered and further doubt her parenting
abilities.
These factors weigh in favor of the best interest finding.
(4) Plans for the children and the stability of the proposed placement
Hernandez testified that DFPS planned for the children to be adopted. However, the trial
court did not terminate the parental rights of the children’s father. Therefore, the children cannot
be adopted, and we examine the plans and proposed placements for the children without
considering adoption.
In terms of DFPS’s plans for the children, Hernandez testified R.A.B. Jr’s current
placement, an emergency shelter, is a temporary placement and DFPS is looking to place R.A.B.
Jr in the same city as M.M.G.-B., if possible, and eventually place the children together where
appropriate for both of them. DFPS further plans to reduce R.A.B. Jr’s need for medication through
continued therapy. Hernandez testified M.M.G.-B. is currently in a foster home and DFPS plans
for her to continue in that same placement. DFPS also plans for M.M.G.-B. to continue with her
therapy.
22
J.G. did not testify as to any plans for the children other than having them return home.
J.G. argues DFPS has failed to present a reasonable permanency plan for the children and,
therefore, this factor should weigh against the best interest finding. However, this factor does not
require a full permanency plan “instead, the inquiry is whether, on the entire record, a factfinder
could reasonably form a firm conviction or belief that termination of the parent’s rights would be
in the child’s best interest—even if the agency is unable to identify with precision the child’s future
home environment.” In re C.H., 89 S.W.3d at 28. Therefore, DFPS’s lack of a firm permanency
plan does not weigh against the best interest finding.
A reasonable trier of fact could conclude that DFPS’s plans and stability for the children
supported termination. These factors weigh in favor of the best interest finding.
After considering the evidence related to the Holley factors, the trial court could have
reached the conclusion that termination of J.G.’s parental rights is in the best interest of her
children. We conclude that the evidence supporting the best interest finding is supported by both
legally and factually sufficient evidence.
We overrule J.G.’s fifth issue.
D. Permanent managing conservatorship
In her sixth issue, J.G. argues the trial court’s appointment of DFPS as the children’s
permanent managing conservator was not supported by legally or factually sufficient evidence.
Here, the trial court appointed DFPS the children’s permanent managing conservator and
appointed their father as possessory conservator.
When parental rights are terminated, the trial court must appoint a managing conservator
for the children. TEX. FAMILY CODE ANN. § 161.207(a). Conservatorship determinations are
reviewed for an abuse of discretion and are reversed only if the decision is arbitrary and
23
unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). The termination of parental rights
divests the parent of all legal rights and duties to the child. TEX. FAMILY CODE ANN. § 161.206(b).
Once a court of appeals overrules a parent’s challenge to an order terminating parental rights, the
trial court’s appointment of DFPS as managing conservator can be considered a consequence of
termination. In re J.D.G., 570 S.W.3d 839, 856 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied).
Because we have overruled J.G.’s challenge to the trial court’s order terminating her
parental rights, she no longer has legal rights or duties to either R.A.B. Jr or M.M.G.-B. See
TEX. FAMILY CODE ANN. § 161.207(a); J.D.G., 570 S.W.3d at 856. Therefore, J.G. does not have
standing to challenge the portion of the trial court’s order appointing DFPS as the children’s
permanent managing conservator. See J.D.G., 570 S.W.3d at 856 (holding that a parent, whose
termination of parental rights was affirmed, could not challenge a conservatorship determination).
We overrule J.G.’s sixth issue.
IV CONCLUSION
We overrule all J.G.’s issues and affirm the order terminating J.G.’s parental rights to
R.A.B. Jr. and M.M.G.-B.
GINA M. PALAFOX, Justice
May 25, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
24