In the Interest of S.A.L., a Child v. the State of Texas ( 2023 )

NUMBER 13-23-00045-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF S.A.L., A CHILD
On appeal from the County Court at Law No. 5
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Tijerina
Appellant C.H.1 (Mother) appeals the termination of her parental rights to her son
S.L. By three issues, Mother argues: (1) the trial court was without jurisdiction when it
entered its order terminating her rights, and therefore the judgment is void; (2) the
evidence is insufficient to support the termination of her parental rights; and
(3) termination was not in S.L.’s best interest. We affirm.
1 To protect the identity of the minor children, we refer to the children and their relatives by their
initials or an alias. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(a).
I. BACKGROUND
Mother is the biological parent of J.C., A.C., D.B., T.H., J.F., and S.L. Only S.L. is
the subject of this suit. S.L. was born on September 18, 2020. On December 28, 2020,
appellee the Texas Department of Family and Protective Services (Department) filed a
petition to terminate Mother’s parental rights, alleging Mother tested positive for
methamphetamines and amphetamines while pregnant with S.L.; S.L. was residing with
his alleged father V.R. and his wife S.V.; and V.R. and S.V. were unwilling to provide a
drug test. The Department further alleged that while V.R. identified himself as S.L.’s
primary caregiver, he did not allow the Department access to his home to conduct a home
assessment. Thus, it was “unknown if [S.L.] has proper sleeping arrangements or if the
inside of [V.R.’s] home pose[d] a safety threat for [S.L.].”2
The trial court rendered an order appointing the Department temporary managing
conservator on March 23, 2021. On September 19, 2022, the trial court held a bench trial.
S.L. was two years old at the time of trial. At the conclusion of the trial, the trial court
terminated Mother’s parental rights and appointed the Department permanent managing
conservator of S.L. The trial court found by clear and convincing evidence that Mother
had knowingly allowed S.L. to remain in conditions which endangered his physical or
emotional well-being, placed S.L. with persons who endangered his physical or emotional
well-being, constructively abandoned S.L., failed to comply with the family plan of service,
and used a controlled substance in a manner that endangered the health or safety of S.L.
2 The Department noted that Adult Protective Services (APS) received a report alleging physical
neglect of V.R.’s physically disabled father. APS’s disposition was that the allegation of physical neglect by
V.R. was validated.
2
See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (N), (O), (P). The trial court also found
by clear and convincing evidence that termination of Mother’s parental rights was in S.L.’s
best interest. See id. § 161.001(b)(2). Mother then appealed.
II. THE EVIDENCE
The Department presented evidence demonstrating the need for termination of
Mother’s parental rights through the testimony from Ariel Burger, a Department
conservatorship supervisor; Irma Saenz, a Department conservatorship supervisor;
Mother; and Foster mother.
A. Burger’s Testimony
Burger testified that the Department became involved in this case because Mother
tested positive for methamphetamines throughout her pregnancy with S.L. S.L. was
placed in the care of V.R., who claimed to be S.L.’s father, but genetic testing later
revealed that V.R. was not S.L.’s biological father.
Burger described V.R. and S.V. as being uncooperative; they refused to drug test
without a court order, and they refused the Department access to their home. The
Department was concerned about S.L. residing with V.R. because V.R. tested positive
for benzodiazepines and cocaine following a court order, and S.V. tested positive for
cocaine and marijuana. After the Department was named temporary managing
conservator, V.R. refused to surrender S.L. Consequently, the court issued a writ of
attachment to obtain possession of S.L. When the writ was executed, V.R. still refused to
surrender S.L., and he became combative. Eventually, Mother surrendered S.L. to the
Department, but according to Burger, she was irate, using foul language, and recorded
3
the incident on her phone. Law enforcement assisted the Department in keeping Mother
away for the Department’s employees’ safety.
Burger testified that the Department has provided services to mitigate its concerns
for removal such as drug testing, parenting and individual counseling, substance abuse
counseling, which Mother was required to complete as part of her family plan of service.
Burger stated that although Mother did attend “some” classes, Mother did not complete
the requested services, such as substance abuse counseling, individual counseling,
parenting classes, and she failed to submit to an “exceptional amount” of drug tests.
According to Burger, Mother was asked to drug test at least twice a month but missed
several. Burger explained that the Department offered Mother bus passes to alleviate any
transportation issues, but she never requested one.
Burger explained that Mother had an extensive history with the Department as five
other children had been removed from her care beginning in 2010. Maternal grandmother
H.H. is the permanent managing conservator of Mother’s four minor children but informed
the Department that she was unable to care for S.L. because she did not have any more
space in her home, and Mother caused “too much drama.”3
The Department made numerous visits to Mother’s apartment pursuant to the trial
court’s order, but Mother prohibited the Department from entering her residence. Burger
opined that Mother is not able to provide S.L. with a safe environment. Additionally, the
Department was unable to verify that Mother had stable employment. Burger believed
that termination was in S.L.’s best interest because Mother had not demonstrated a
3 Mother’s adult child, J.C., lives alone.
4
lifestyle change to mitigate any of the Department’s concerns. According to Burger, S.L.
is currently with his fifth foster family, who intends to adopt him.
B. Saenz’s Testimony
Saenz testified that Mother’s involvement with the Department began in April 2010
when the Department received allegations that Mother physically abused her children,
J.C. and A.C., smoked marijuana in and out of the home, and was around the children
while intoxicated. Mother participated in drug treatment, and those allegations were ruled
out. In January 2017, the Department received another report, alleging physical abuse of
A.C., Mother used drugs in front of the children, and the children had access to drugs. It
was also alleged that Mother threw J.C. and hit him with both open and closed fists, but
the Department was unable to complete its investigation because Mother was
uncooperative. In November 2018, the Department was involved with Mother again for
allegations of neglectful supervision of D.B. and T.H., and Saenz stated “it was alleged
that [Mother] was 30 weeks pregnant and tested positive for marijuana at a doctor’s
appointment.” In September 2019, the Department received a report that A.C. was found
unresponsive due to a suicide attempt by ingesting drugs. Two months later, the
Department received another allegation regarding Mother’s neglectful supervision of J.F.
because he was born at twenty-nine weeks, weighing two pounds, and Mother tested
positive for amphetamines upon admission at the hospital.
The Department made numerous attempts to locate S.L., but Mother would not
provide any information. Saenz indicated that it took the Department “a couple of months”
5
to locate S.L. Saenz added that Mother was always “irate,” “uncooperative,” and would
use[] foul language.”
C. Mother’s Testimony
Mother agreed that she tested positive for methamphetamines on August 12, 2020,
but she did not recall testing positive for methamphetamines any other time. According to
Mother, she is unaware that she has missed several drug tests because she does not
“have an actual phone” anymore although she can be reached via e-mail. Mother
admitted she “talk[ed] foul to” the Department but claimed that she “tried to keep it cool,
calm, and collected with them” until she felt she was being “belittled.”
According to Mother, she was aware that she was required to complete court-
ordered services, but she did not complete those services because she cannot “attend all
these classes when [she has] to make a living” for herself and for her five minor children.
Mother admitted that her virtual visits with S.L. were suspended. When pressed as to
whether her visitations were suspended because Mother was not cooperating and not
participating in the required services, Mother replied, “I’m not sure as to why they were
suspended, actually.”
Mother stated that H.H. lives in a two-bedroom apartment with Mother’s four minor
children. Yet, Mother disagreed that it would be difficult for H.H. to care for S.L. because
S.L. is “a little person.”
Mother stated she is temporarily residing with another individual in an apartment
doing “various jobs,” “odd jobs,” and “[d]ifferent stuff.” Mother clarified that her stay at this
apartment was just “a temporary one,” but she had “room” for S.L.
6
D. Foster Mother’s Testimony
S.L.’s Foster mother testified that she has had S.L. in her care for about one week
but had “respite care for him prior to that for around three weeks.” Nonetheless, she has
known S.L. for at least six months because she is good friends with his previous foster
parents, and she met S.L. while he was placed there. Foster mother testified that she
invited S.L.’s previous foster parents to his birthday party so that he is still able to maintain
contact with them. S.L. currently attends the same school program he attended with his
previous foster placement, so S.L. is able to interact with the kids he has grown familiar
to.
Foster mother lives in a four-bedroom home with her two biological children ages
nine and six, and a two-and-a-half-year-old toddler who she adopted through foster care
six months prior to trial. According to Foster mother, S.L. is “doing wonderful,” “bonding
with the other siblings,” and “showing signs of healthy growth.” She explained that S.L.
and his foster sister get along as they are very close in age. Currently, Foster mother is
working on S.L.’s speech, and since he has been in her care, has learned ten new words.
Foster mother stated that she would “absolutely” pursue adoption if the trial court
terminated Mother’s rights. Foster mother believed she could provide S.L. with a stable
environment.
III. JURISDICTION
By her first issue, Mother argues the trial court’s judgment is void because the trial
court’s jurisdiction was not properly extended pursuant to § 263.401(a) of the family code,
so the court “lost jurisdiction over the case on March 28, 2022.”
7
A. Applicable Law
Section 263.401(a) of the family code provides that if a trial court fails to
commence the trial on the merits or grant an extension within one year after the trial court
appointed the Department as temporary managing conservator, the trial court’s
jurisdiction terminates, and the case is automatically dismissed. See id. § 263.401(a)
(providing that the trial court’s jurisdiction ends on the first Monday after the first
anniversary of the date the trial court rendered a temporary order appointing the
department as temporary managing conservator); In re G.X.H., 627 S.W.3d 288, 292
(Tex. 2021). However, § 263.401(b) provides that the trial court may extend its jurisdiction
by an additional 180 days if extraordinary circumstances necessitate the child remaining
in the Department’s conservatorship and continuing the Department’s appointment is in
the child’s best interest. See TEX. FAM. CODE ANN. § 263.401(b).
Here, the trial court rendered an order appointing the Department temporary
managing conservator on March 22, 2021. The first Monday after the anniversary of that
date was March 28, 2022. Therefore, unless the trial court either (1) “commenced the trial
on the merits,” or (2) “granted an extension under Subsection (b) or (b-1)” under
§ 263.401, the court’s jurisdiction over the case ends on March 28, 2022. See id.
§ 263.401(a), (b). This extension may be made “orally on the record or in some other
writing.” In re G.X.H., 627 S.W.3d at 299.
B. Discussion
The record provides that on March 17, 2022, the trial court held a hearing to
consider the Department’s request for an “extension pursuant to § 263.401.” According
8
to the record, Mother attended the hearing, and Mother’s counsel “agreed” to an
extension pursuant to § 263.401. At the conclusion of the hearing, the trial court orally
granted the Department’s unopposed motion for continuance.
Following the trial court’s oral extension, the trial court held a placement hearing
on March 31, 2022, and another hearing on April 19, 2022. Mother appeared at the
hearings. A new scheduling order was held on May 3, 2022, setting a trial date for August
22, 2022.
Thereafter, on June 22, 2022, the Department submitted a written order for the trial
court to memorialize its March 17, 2022 order granting an oral extension, which the trial
court signed on June 28, 2022. The order reads that the trial court—before the end of the
initial dismissal period—found “that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship” of the Department and further
extended the dismissal date to September 24, 2022.4 See id. at 300–01 (“But there is no
requirement in the statute that this order be rendered before the initial dismissal date.”).
The family code permits the court to render the order orally. See TEX. FAM. CODE
ANN. § 101.026 (providing that pronouncement may be made orally in the presence of the
court reporter or in writing, “including on the court’s docket sheet or by a separate written
instrument”); see also In re O.O., No. 13-21-00411-CV, 2022 WL 1559725, at *8 (Tex.
App.—Corpus Christi–Edinburg May 17, 2022, pet. denied) (mem. op.) (permitting a trial
court to grant extension through a docket entry); In re R.J.R., No. 04-21-00246-CV, 2021
4 The order further provides other findings leading to the continuation of the Department’s
conservatorship.
9
WL 5813827, at *2 (Tex. App.—San Antonio Dec. 8, 2021, no pet.) (mem. op.) (“[T]he
court may have orally extended the automatic dismissal date during the March 16
hearing.”). “In the absence of a record, we presume the evidence was sufficient to support
the trial court’s findings,” and Mother bears the burden on appeal to show that did not
occur. See In re G.X.H., 627 S.W.3d at 300 (finding that the parents bore burden to bring
forth record on appeal “to demonstrate the absence of evidence to support the required
findings”). Mother did not move to dismiss after the March 28, 2022 dismissal date or
otherwise assert that the trial court lacked jurisdiction to proceed. See id. at 301.
Because we conclude the trial court effectively extended the automatic dismissal
date, it retained jurisdiction to render an order of termination, and we proceed to the merits
of Mother’s appeal. See id. at 298 (concluding the only reasonable interpretation of a
docket entry regarding a hearing was that the trial court extended the automatic dismissal
date); In re P.Z.F., 651 S.W.3d 147, 153 (Tex. App.—Dallas 2021, pet. denied) (“Based
on G.X.H., we imply the [§] 263.401(a) findings were made on the record at the oral
hearing.”). We overrule Mother’s first issue, and we proceed to the merits of her appeal.
IV. STANDARD OF REVIEW
For a trial court to terminate a parent-child relationship, there must be clear and
convincing evidence that: (1) the parent’s actions or omissions satisfy at least one
statutory termination; and (2) termination is in the child’s best interest. TEX. FAM. CODE
ANN. § 161.001(b)(1), (2); see 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
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to be established.” TEX. FAM. CODE ANN. § 101.007; In re E.N.C., 384 S.W.3d at 802.
Only one predicate act under § 161.001 (b)(1) is necessary to support a judgment
of termination in addition to the required finding that termination is in the child’s best
interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). To determine whether the evidence
is legally sufficient to support the trial court’s findings, we look at all the evidence in the
light most favorable to the finding and ask whether a reasonable factfinder could have
formed a firm belief or conviction the finding was true. In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002). We must assume the factfinder resolved disputed facts in favor of its finding
if a reasonable factfinder could do so, and we disregard all evidence a reasonable
factfinder could have disbelieved or found incredible. Id.When reviewing a challenge to the factual sufficiency of the evidence, we “give
due consideration to evidence that the factfinder could reasonably have found to be clear
and convincing.” Id.; In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We determine “whether
the evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth” regarding the Department’s allegations. In re. J.F.C., 96 S.W.3d at 266.
We consider whether disputed evidence is such that “a reasonable factfinder could not
have resolved that disputed evidence in favor of its finding.” 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, then the evidence is factually insufficient.” Id.
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V. ENDANGERMENT
By her second issue, Mother argues the evidence was legally and factually
insufficient to support the trial court’s decision to terminate her parental rights pursuant to
§ 161.001 (D) and (E). According to Mother, the evidence is legally and factually
insufficient to support a finding that that Mother engaged in a course of conduct that
endangered S.L. physically or emotionally.
A. Applicable Law
Section 161.001(b)(1)(D) and (E) both require a finding of endangerment.5 See
TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). “Because the evidence pertaining to
subsections 161.001 (1)(D) and (E) is interrelated, we may conduct a consolidated
review.” In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.). To
“‘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) (internal citations omitted). The specific danger
to a child’s physical or emotional well-being need not be established as an independent
proposition, but it may be inferred from parental misconduct. Id.Pursuant to subsection D, the endangerment analysis focuses on the evidence of
the child’s physical environment although the environment produced by the conduct of
the parents bears on the determination of whether the children’s surroundings threaten
their well-being. See In re E.M., 494 S.W.3d 209, 221 (Tex. App.—Waco 2015, pet.
denied); see also In re J.J.M., No. 13-22-00131-CV, 2022 WL 3257520, at *6 (Tex. App.—
5“Allowing [§] 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has
presented the issue to the court thus violates the parent’s due process and due course of law rights.” In re
N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam).
12
Corpus Christi–Edinburg Aug. 11, 2022, no pet.) (mem. op.). Subsection D “permits
termination if the petitioner proves parental conduct caused the children to be placed or
remain in an endangering environment.” In re J.J.M., 2022 WL 3257520, at *6.
It is not necessary that the parent’s conduct be directed towards the child
or that the child actually be injured; rather, a child is endangered when the
environment creates a potential for danger which the parent is aware of but
disregards. Conduct that demonstrates awareness of an endangering
environment is sufficient to show endangerment. In considering whether to
terminate parental rights, the court may look at parental conduct both before
and after the birth of the child. Section D permits termination based upon
only a single act or omission.
In re E.M., 494 S.W.3d at 221–22 (cleaned up).
Under subsection E, the relevant inquiry is whether evidence exists that the
endangerment of the children’s physical well-being was the direct result of the parent’s
conduct, including acts, omissions, or failures to act. Id. at 222. Either the parent’s conduct
or the conduct of a person with whom the parent knowingly leaves the children that
endangers their physical or emotional well-being is sufficient. Id. (“It is not necessary,
however, that the parent’s conduct be directed at the child or that the child actually suffer
injury.”). In either instance, it is thus the direct result of the parent’s conduct that results
in the termination of the parental rights. Id.B. Discussion
Mother admitted that it would be concerning for S.L. to be in a home with drug
users, yet Mother repeatedly tested positive for methamphetamines and amphetamines
throughout her involvement with the Department for over a decade, and admitted that she
tested positive for drugs while she was pregnant with S.L. See In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009) (“We accordingly agree that a parent’s use of narcotics and its effect
13
on his or her ability to parent may qualify as an endangering course of conduct.”); see In
re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied) (“[A]
parent’s decision to engage in illegal drug use during the pendency of a termination suit,
when the parent is at risk of losing a child, supports a finding that the parent engaged in
conduct that endangered the child’s physical or emotional well-being.”). Additionally,
Mother failed to comply with court-ordered drug tests and went through periods of
noncompliance. Drug use and its effect on a parent’s ability to parent may establish an
endangering course of conduct. See Cervantes-Peterson v. Tex. Dep’t of Family &
Protective Servs., 221 S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(noting that mother’s continued narcotics use after child’s removal and in face of drug
testing, jeopardized her relationship with her child).
Mother did not allow the Department access to her apartment so that they could
conduct the requisite home evaluations required for reunification. See In re R.W., 129
S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied) (explaining that conduct that
subjects a child to a life of uncertainty and instability endangers the child’s physical and
emotional well-being). The Department engaged a special investigator, but Mother “would
never open the door.”
Furthermore, Mother refused to provide the Department with S.L.’s location;
caused the Department to spend months attempting to locate S.L.; and allowed S.L. to
reside in a home with drug users, stating that V.R. had “partial custody.” In her brief,
Mother stated that V.R. “welcomed [S.L.] with open-arms into his home.” However, there
was evidence that V.R. was uncooperative in the Department’s investigation, did not allow
14
the Department access to his home, and did not provide any information or comply with
any efforts of the Department. There was also evidence that V.R. and his wife tested
positive for cocaine, marijuana, and benzodiazepines. Though Mother denied she knew
that V.R. and his spouse were drug users,6 the trial court could have disbelieved Mother’s
testimony. See In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet. denied)
(providing that evidence that a parent allowed a child to be around persons using drugs
can support a conclusion that the child’s surroundings endanger the child’s physical or
emotional well-being); see also In re J.J., No. 07-13-00117-CV, 2013 WL 4711542, at *4
(Tex. App.—Amarillo Aug. 29, 2013, no pet.) (mem. op.) (“[A] parent’s decision to leave
a child in the care of a known drug user is relevant to the predicate acts or omissions
outlined in subsections (D) and (E).”).
The Department alleged multiple instances of neglect beginning in 2010 as Mother
has an extensive history with the Department. In fact, all of Mother’s prior children have
been removed from Mother’s care, and, according to the Department, the trial court
ordered Mother not to have contact with her other children “due to it harming the welfare
and safety of the children.” See In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland
2010, pet. denied) (“If a parent abuses or neglects . . . other children, that conduct can be
used to support a finding of endangerment even against a child who was not yet born at
the time of the conduct.”); see also A.S. v. Tex. Dep’t of Family & Protective Servs., 394
S.W.3d 703, 712 (Tex. App.—El Paso 2012, no pet.) (providing that a factfinder may infer
6Mother testified, “[I]t came to a surprise that all of us came out with the same drug, supposedly,
when I never even took a drug test for the Department.”
15
from a parent’s past conduct of endangering the well-being of the children that similar
conduct will recur in the future); In re E.A., No. 13-06-503-CV, 2007 WL 2471459, at *8
(Tex. App.—Corpus Christi–Edinburg Aug. 31, 2007, no pet.) (mem. op.) (“Because there
is evidence that appellant’s past actions were unsuitable, the trial court could have
inferred that similar unsuitable conduct could recur in the future if the children are returned
to appellant.”).
According to Mother, the evidence is legally and factually insufficient to support a
finding that that Mother engaged in a course of conduct that endangered S.L. physically
or emotionally because “[t]here was no evidence presented from law enforcement or
psychologists or doctors that Mo[ther] posed a danger” to S.L. “or was engaged in any
such dangerous behavior.” However, the evidence presented belies such a conclusion.
Furthermore, Mother cites no authority that evidence of endangerment must be presented
through the testimony of law enforcement, psychologists, or doctors, and we have found
none. See TEX. R. APP. P. 38.1(i). Nonetheless, the statute does not require that evidence
of endangerment come from a specific source. Cf. TEX. FAM. CODE ANN. § 161.001. A
parent’s conduct that subjects a child to a life of uncertainty and instability endangers the
child’s physical and emotional well-being. In re R.W., 129 S.W.3d at 739. There was
evidence of such problematic conduct by Mother, as discussed supra. See Cervantes-
Peterson, 221 S.W.3d at 253 (“The specific danger to the child’s well-being may be
inferred from parental misconduct standing alone.”).
Burger concluded that allegations of neglectful supervision against Mother was
ultimately substantiated, as indicated in her “reason to believe” finding. The trial court was
16
also privy to evidence of Mother’s noncompliance with her family plan of service, wherein
Mother failed to: maintain a safe and stable home for S.L.; allow the Department access
to her current residency to conduct assessments; attend all scheduled visits with S.L. and
all court hearings; provide the Department with proof of a stable job and income; complete
parenting classes; complete drug counseling; attend and successfully complete drug and
alcohol assessments; submit to random drug tests; and obtain clean drug tests. See In
re R.F., 115 S.W.3d 804, 811 (Tex. App.—Dallas 2003, no pet.) (providing that as part of
the endangering-conduct analysis, a court may consider a parent’s failure to complete a
service plan). The trial court was the sole judge of the witnesses’ credibility and was free
to believe the Department’s evidence and to disbelieve Mother’s explanations. See In re
J.O.A., 283 S.W.3d at 346.
Viewing the evidence in the light most favorable to the trial court’s finding, we
conclude that the evidence is sufficient to support the trial court’s findings that Mother
knowingly placed or knowingly allowed S.L. to remain in conditions or surroundings that
endanger S.L. and engaged in conduct or knowingly placed S.L. with persons who
engaged in conduct that endangers S.L. See TEX. FAM. CODE ANN. § 161.001 (b)(1)(D),
(E). Moreover, viewing all the evidence, we conclude that the evidence is such that a
factfinder could reasonably form “a firm belief or conviction about the truth” regarding the
Department’s allegations. See In re. J.F.C., 96 S.W.3d at 266. Accordingly, the evidence
is legally and factually sufficient to support the judgment. We overrule Mother’s second
issue. Because we find that the evidence is sufficient under subsections D and E, we
need not address Mother’s issues challenging the remaining statutory grounds on appeal.
17
See In re A.V., 113 S.W.3d at 362 (providing that only one predicate act under
§ 161.001(b)(1) is necessary to support a judgment of termination in addition to the
required finding that termination is in the child’s best interest).
VI. BEST INTEREST
By her third issue, Mother argues there is legally and factually insufficient evidence
supporting the trial court’s finding of best interest.
A. Applicable Law
When considering the best interest of a child, we recognize there is a strong
presumption that the child’s best interest is served by preserving the parent-child
relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, we also
presume that “prompt and permanent placement of the child in a safe environment” is in
the child’s best interest. TEX. FAM. CODE ANN. § 263.307(a).
In determining whether a parent is willing and able to provide the child with a safe
environment, we consider the factors set forth in the family code as well as the Holley
factors.7 See id. § 263.307(b); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive. In re C.H., 89 S.W.3d at 27. “The absence of evidence
about some of these considerations would not preclude a factfinder from reasonably
forming a strong conviction or belief that termination is in the child’s best interest,
7 These factors include: (1) the child’s desires; (2) the child’s present and future emotional and
physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities
of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to
promote the child’s best interest; (6) the plans for the child by the individuals or agency seeking custody;
(7) the stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate
that the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
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particularly if the evidence were undisputed that the parental relationship endangered the
safety of the child.” Id. In analyzing these factors, we focus “on the best interest of the
child, not the best interest of the parent.” Dupree v. Tex. Dep’t of Protective & Regul.
Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ).
Evidence that proves one or more statutory grounds for termination may also
constitute evidence illustrating that termination is in the child’s best interest. In re C.H.,
89 S.W.3d at 28. “A best-interest analysis may consider circumstantial evidence,
subjective factors, and the totality of the evidence as well as the direct evidence.” In re
E.D., 419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied). “A trier of fact
may measure a parent’s future conduct by his past conduct and determine whether
termination of parental rights is in the child’s best interest.” Id.B. Children’s Desires, Ages, and Vulnerabilities
“When children are too young to express their desires, the fact finder may consider
that the children have bonded with the foster family, are well-cared for by them, and have
spent minimal time with a parent.” In re S.J.R.-Z., 537 S.W.3d 677, 693 (Tex. App.—San
Antonio 2017, pet. denied) (quoting In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston
[14th Dist.] 2014, no pet.)). Although S.L. is too young to articulate his desires, there was
evidence that Mother’s other children “expressed their concerns about not wanting her
around and not wanting to visit with her.” See id. Foster mother testified that S.L. is doing
wonderful in her care, and he his bonding with the family and his other siblings. See In re
C.N.S., 105 S.W.3d 104, 106 (Tex. App.—Waco 2003, no pet.) (considering the evidence
of a lack of an emotional bond between the children and the parent as relevant in
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determining the child’s desires). Foster mother is currently working on S.L.’s speech. She
is making notes of the new words S.L. has learned since being placed with her family.
Although S.L. has had a short time with Foster mother, he is doing well with his foster
family while Mother has not maintained significant contact with S.L. See TEX. FAM. CODE
ANN. § 263.307(b)(12)(F) (providing that court may consider whether the family
understands the child’s needs and capabilities); In re J.M.T., 519 S.W.3d 258, 270 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied) (considering evidence of a child’s bond with
foster mother in the best-interest analysis). These factors weigh in favor of termination.
C. Children’s Present and Future Emotional and Physical Needs, Plans for the
Children, and Parental Abilities
“The need for permanence is the paramount consideration for the child’s present
and future physical and emotional needs.” In re S.J.R.-Z., 537 S.W.3d at 693 (quoting
Dupree, 907 S.W.2d at 87). “[T]he prompt and permanent placement of the child in a safe
environment is presumed to be in the child’s best interest.” TEX. FAM. CODE ANN.
§ 263.307(a). “While it is true that proof of acts or omissions under [§] 161.001(1) does
not relieve the petitioner from proving the best interest of the child, the same evidence
may be probative of both issues.” In re C.H., 89 S.W.3d at 28; see In re D.L.N., 958
S.W.2d 934, 941 (Tex. App.—Waco 1997, pet. denied) (holding that a factfinder may infer
that past conduct endangering the well-being of a child may recur in the future if the child
is returned to the parent).
Here, Mother was residing in a temporary home, was doing “odd jobs,” and she
had no plan for S.L. going forward. Moreover, there was evidence that Mother was hostile
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with the Department throughout the entire process, calling them “liars” and “bitches.”8
See TEX. FAM. CODE ANN. § 263.307(b)(10) (providing that Mother’s willingness “to
cooperate with and facilitate an appropriate agency’s close supervision” is a relevant
consideration in the best interest analysis). Thus, Mother’s unwillingness to cooperate
with the Department because she “disagree[s] with what they’re saying,” demonstrates
her own developmental immaturity, indicating an inability to prioritize reunification with
S.L. and effect personal change for the betterment of her child. See id. § 263.307(b)(11)
(providing that “the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time” is a relevant
consideration in the best interest determination). Additionally, demonstrative of Mother’s
inability to provide S.L. with a safe and drug-free home was her testified-to
“unaware[ness]” that she had missed several required drug tests. See id.
§ 263.307(b)(12). Mother also suggests that because S.L. is an infant and “a little person,”
H.H. should be able to care for him along with her four other minor children in H.H.’s two-
bedroom apartment. This demonstrates Mother’s lack of understanding of S.L.’s basic
needs. See id. These factors favor termination.
D. History of Substance Abuse
An additional factor to consider in a best interest determination is whether there is
a history of substance abuse by the child’s family or others who have access to the child’s
home. See id. § 263.307(b)(7). Mother admitted that she was using drugs when she was
8 In closing arguments, the Department asked the trial court to consider Mother’s demeanor and
attitude at trial where mother was “laughing and mocking” the Department while she was being questioned.
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pregnant with S.L. and that she subsequently tested positive during the pendency of her
cases with the Department. See In re J.M.T., 519 S.W.3d at 269 (concluding “[p]arental
drug abuse reflects poor judgment,” and is a relevant consideration in the best interest
determination); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)
(“A mother’s use of drugs during pregnancy may amount to conduct that endangers the
physical and emotional well-being of the child.”). The Department presented evidence
that Mother failed her drug tests on multiple occasions and that she left her child with V.R.
and S.V. who both tested positive for narcotics. These factors weigh in favor of
termination.
E. Programs Available and Parent’s Acts, Omissions, and Willingness to
Accept Help
There was evidence that after removal, Mother tested positive for drugs, failed to
submit to drug tests, and failed to complete her required court-ordered services. See In
re K-A.B.M., 551 S.W.3d 275, 287 (Tex. App.—El Paso 2018, no pet.) (providing that a
parent’s failure to submit to a drug test can be considered a positive result). Mother was
unsuccessfully discharged from Gulf Coast Services. As the factfinder, the trial court may
have inferred from Mother’s failure to take the initiative to complete the services required
to regain possession S.L. that she does not have the ability to motivate herself to seek
out available resources needed now or in the future. See In re J.M.T., 519 S.W.3d at 267.
The Department presented evidence that Mother was uncooperative and
disengaged from her services for months at a time, demonstrating that Mother was not
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willing to interact with the Department. 9 See TEX. FAM. CODE ANN. § 263.307(b)(10)
(stating that willingness and ability “to cooperate with and facilitate an appropriate
agency’s close supervision” is relevant consideration in deciding whether parent can
provide child with safe environment); Wilson v. State, 116 S.W.3d 923, 930 (Tex. App.—
Dallas 2003, no pet.) (providing that a parent’s lack of motivation in improving parenting
skills is evidence to support a finding that termination is in the child’s best interest).
Although Mother recently started attending virtual visitation with S.L., there was evidence
that Mother also failed to attend visitation with S.L., and her visitation was further
suspended for months because she refused to cooperate with the Department and the
trial court.
Burger testified that Mother demonstrated an inability to provide S.L. with a safe
environment because she was living in a temporary apartment with an unnamed person,
and she was planning to move soon. In addition, the evidence showed that Mother did
not have stable employment or a plan to care for S.L. From this evidence the trial court
could have reasonably found that Mother is unable to provide for S.L.’s emotional and
physical needs. See In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no
pet.) (“Without stability, income, or a home, [a parent] is unable to provide for the child’s
emotional and physical needs.”). These factors weigh in favor of termination.
F. Conclusion
Having reviewed the record and considered the evidence in the appropriate light
for each standard of review, we conclude the trial court could have formed a firm belief or
9 Mother attributed this to not having a phone, but she admitted she was available through e-mail.
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conviction that termination of Mother’s parental rights is in S.L.’s best interest. See TEX.
FAM. CODE ANN. § 161.001(b)(2). Accordingly, we hold the evidence is legally and
factually sufficient to support the trial court’s best interest findings. We overrule Mother’s
third issue.
VII. CONCLUSION
We affirm the judgment of the trial court.
JAIME TIJERINA
Justice
Delivered and filed on the
8th day of June, 2023.
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