In the Interest of N.W., a Child v. the State of Texas ( 2023 )

Affirmed and Memorandum Opinion filed August 17, 2023.
In The
Fourteenth Court of Appeals
NO. 14-23-00139-CV
IN THE INTEREST OF N.W., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2022-00205J
MEMORANDUM OPINION
The trial court signed a Decree of Termination terminating Mother’s and
Father’s parental rights with respect to their one-year-old son, N.W. (“Nick”).1
Mother appeals the decree and challenges the trial court’s predicate termination
findings under Texas Family Code sections 161.001(b)(1)(D), (E), (O), and (P).
Mother also challenges the trial court’s finding that termination of her parental
rights is in Nick’s best interest and its appointment of the Texas Department of
Family and Protective Services (the “Department”) as Nick’s sole managing
conservator.
1
We refer to N.W. using a pseudonym. See Tex. Fam. Code Ann. § 109.002(d).
For the reasons below, we overrule Mother’s issues on appeal and affirm the
trial court’s Decree of Termination.
BACKGROUND
Nick was born on February 3, 2022; four days later, the Department filed an
original petition seeking to terminate Mother’s and Father’s parental rights. The
Department also requested that it be appointed Nick’s sole managing conservator.
The parties proceeded to a bench trial in January 2023.2 We summarize
relevant portions of the witnesses’ testimony and evidence below.
Britney Jones
Jones is a Department caseworker and, at the time of trial, had been assigned
to Nick’s case for 11 months. Jones said Nick “came into care due to Mom and
[Nick] testing positive for amphetamines at birth.” Jones testified that Nick did not
have any withdrawal symptoms at birth nor has he had any development delays.
Jones said Nick was placed with a foster family shortly after his birth.
Jones said a family service plan was created for Mother in March 2022,
which prescribed the following services: psychosocial assessment, parenting
classes, substance abuse assessment, psychiatric assessment, individual counseling,
and random drug testing. The service plan also required Mother to show proof of
housing and proof of income.
According to Jones, Mother did not complete her psychosocial assessment
until October 2022, which delayed the start of her individual counseling. Jones
said Mother was referred to individual counseling shortly thereafter and began
2
Father did not appear at the bench trial nor did he contest the Department’s request that
his parental rights be terminated. Likewise, Father did not appeal the trial court’s judgment
terminating his parental rights.
2
counseling in December 2022. Jones testified that Mother needed to complete 14
individual counseling sessions and, at the time of trial, had completed three.
Jones said Mother completed her substance abuse assessment in April 2022
but, “due to the lapse in time” between the assessment and entering the program,
Mother had to take a second substance abuse assessment in October 2022.
According to Jones, Mother was subsequently referred to a substance abuse
program and has completed four out of the 13 recommended sessions. Jones said
Mother has been consistently drug tested and tested positive in August 2022 for
methamphetamines and cocaine.
Jones said Mother was referred to parenting classes in March 2022 but, as of
the time of trial, had not started the classes. Jones testified that it is not possible
for Mother to complete her prescribed services by the end of February 2023.
According to Jones, Mother has visited Nick consistently aside from “a
month of just no-shows for April [2022].” Jones testified that the visits have been
“appropriate” and described Mother as “nurturing,” “caring,” and “attentive.”
Jones said there is “a bond” between Mother and Nick and said Mother is “very
open,” “loves her baby,” and “has a will[] to at least try.”
Discussing Mother’s current living situation, Jones said Mother is subleasing
an apartment “from a male friend” and is not working. Jones testified that Mother
gave birth to a new baby on January 5, 2023. Jones said there is an “open
investigation” into Mother’s care of her newborn child and stated that Mother’s
August 2022 positive drug test indicates that Mother again was using drugs while
pregnant. The newborn child currently resides with Mother.
Jones said Mother also has three older children who are not in her care.
According to Jones, “drugs were involved” in the two older children’s Department
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cases and Mother “was incarcerated” during the other child’s case.
Discussing Nick’s current living situation, Jones said he has “bonded” to his
foster family. Jones said Nick’s foster mother and foster father both work and,
during the day, Nick is in daycare. According to Jones, Nick “is thriving and
doing well in his placement.” Jones said the foster family wants to adopt Nick. In
sum, Jones recommended that Mother’s parental rights with respect to Nick be
terminated.
Mother
When asked about the delay in completing her services, Mother testified as
follows:
Like in the beginning — like I explained to [the caseworkers], I got
my son taken away. I know I made a mistake, but two days out of the
hospital, I’m supposed to get out and start services, you know, it’s like
it’s not that easy to just go through a situation [as] traumatizing as
that. I know I made a mistake, but my son wasn’t having withdrawals
and was taken out for my son to be seen and stuff like that, so I made
a mistake, you know, but I was supposed to just snap back into it. I
ended up going through a lot of depression. I had post-partum. And
then, in May, I ended up getting on Zoloft which is like this — like if
I could sleep 27 hours, I would have. That’s why I missed my couple
of sessions with [Nick] in April and I just went through a lot of
depression. I know I made a mistake, but I’m trying now to get
everything together.
Mother said she currently lives in a two-bedroom, two-bathroom apartment.
According to Mother, she recently started working again and is employed by a
painting company. Mother said her job includes doing payroll and other tasks that
can be completed at home.
When asked about the August 2022 drug test that was positive for cocaine
and methamphetamines, Mother said she did not use these substances. Mother said
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“maybe there was a mix-up” because she was not on drugs and passed all her other
drug tests. Mother said the last time she took a controlled substance was
approximately one month before Nick was born; Mother said she only took
Adderall.
Mother requested that her parental rights not be terminated. Mother said she
will be diligent about completing her services and can do so by the end of February
2023.
Presley Lundquist
Lundquist is the Child Advocate assigned to Nick’s case. Lundquist
recommended that Mother’s parental rights be terminated and that Nick be adopted
by his foster family.
Lundquist said Nick is doing “well” and that his foster family has been
providing appropriate care. Describing Nick’s foster family, Lundquist said they
are “nurturing,” “affectionate,” and have provided Nick with “a stable life.” When
asked why Mother’s parental rights should be terminated, Lundquist said: “Just
because of his young age and vulnerability, the mother’s history of substance abuse
and the lapse in time to complete her services given.”
Exhibits
The trial court admitted into evidence the affidavit of removal completed by
Department caseworker Teannia Peavy, which was dated four days after Nick’s
birth. The affidavit states that the investigation was initiated after Mother and
Nick both tested positive for amphetamines shortly after his birth. The affidavit
also states that Mother tested positive for drugs during her pregnancy. According
to Peavy, Mother “stated she has not been doing any type of drugs” when asked
about the positive drug screenings.
5
The affidavit also states that Mother got into a fight with her brother two
weeks before Nick’s birth. Mother said her brother “pushed her in the tub” and
“told her that he ‘hopes her and her baby die.’” Mother also asserted that she
“believed that her brother [] put something in her food because he uses
methamphetamine[s].”
According to Peavy, Mother “made it clear” that she wanted Nick to live
with her. Mother also stated that she did not want to attend a substance abuse
rehabilitation facility. Mother provided the name of a friend who could watch her
and Nick “24 hours a day” once she was discharged from the hospital. But Peavy
stated that, after she spoke to the friend, the friend informed her that Mother
“wanted [her friend] to lie to CPS.” The friend stated that Mother “needs help with
mental health issues and her drug addiction,” but said she was unable to watch
Mother and Nick because she worked a full-time job. The friend also asked Peavy
to not inform Mother of her statements because she was concerned how Mother
“would act towards her.”
The affidavit also shows that Mother has been convicted of the following
offenses:
• 2010: Possession of marijuana less than 2 ounces, a class B
misdemeanor.
• 2011: Prostitution, a class B misdemeanor.
• 2011: Assault of a public servant, a third-degree felony.
• 2015: Driving while intoxicated, a class B misdemeanor.
• 2021: Driving while intoxicated, a class A misdemeanor.
The last listed offense occurred while Mother was pregnant with Nick.
Also admitted into evidence was a criminal complaint charging Mother with
assault of a family member. The complaint states that, on July 24, 2022, Mother
6
“intentionally and unlawfully caused bodily injury to [Complainant] . . . by biting
the Complainant with Defendant’s teeth and pushing the Complainant with
Defendant’s hand.”
Finally, the trial court also admitted into evidence a December 2022
permanency report that detailed Mother’s progress on her family service plan.
According to the report, Mother “continue[d] to set appointments with providers
and then is a no call/no show and then [she] reschedules and does it again.
Provider[s] have mentioned not wanting to work with mom due to this issue[.]”
The report also states that Mother was pregnant with her fifth child and “mentioned
that she is thinking about having her new baby out of state to not be involved with
CPS.”
The permanency report also details the results from Mother’s substance
abuse drug screenings. The report shows that Mother completed 20 drug
screenings from February 2022 through November 2022. Seventeen of the drug
screenings were negative; Mother was a no-show for the April and July tests.
Mother tested positive for methamphetamines and cocaine at the August screening.
Conclusion
The trial court signed a Decree of Termination on February 7, 2023,
terminating both Mother’s and Father’s parental rights with respect to Nick.
The trial court found that termination of Mother’s parental rights was in
Nick’s best interest and was justified under four subsections of section
161.001(b)(1) of the Texas Family Code: (D) (endangerment by environment), (E)
(endangerment by conduct), (O) (failure to comply with family services plan), and
(P) (endangering substance abuse even after court-ordered treatment). The trial
court appointed the Department as Nick’s sole managing conservator. Mother
7
timely appealed.
ANALYSIS
Mother raises six issues on appeal, which we consolidate as follows:
1. the trial court’s predicate findings under Texas Family Code sections
161.001(b)(1)(D), (E), (O), and (P) are not supported by legally and
factually sufficient evidence;
2. the trial court’s best interest finding is not supported by legally and
factually sufficient evidence; and
3. the trial court abused its discretion by appointing the Department as
Nick’s sole managing conservator.
We begin with the applicable burdens of proof and standards of review before
turning to Mother’s first issue.
I. Burdens of Proof and Standards of Review
Involuntary termination of parental rights is a serious matter that implicates
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). But although parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Given the fundamental liberty
interests at stake, “termination proceedings should be strictly scrutinized, and
involuntary termination statutes are strictly construed in favor of the parent.”
Holick, 685 S.W.2d at 20.
Parental rights may be terminated if clear and convincing evidence shows
(1) the parent committed an act described in section 161.001(b)(1) of the Texas
Family Code, and (2) termination is in the child’s best interest. See Tex. Fam.
Code Ann. § 161.001(b)(1), (2). “‘Clear and convincing evidence’ means the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” Id.8
§ 101.007.
This heightened burden of proof results in heightened standards of review
for evidentiary sufficiency. In re V.A., 598 S.W.3d 317, 327 (Tex. App.—Houston
[14th Dist.] 2020, pet. denied). For a legal sufficiency challenge, we consider all
the evidence in the light most favorable to the finding to determine whether a
reasonable factfinder could have formed a firm belief or conviction that its finding
was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable factfinder
could do so, and we disregard all controverting evidence a reasonable factfinder
could disbelieve. Id.For a factual sufficiency challenge, we consider and weigh all the evidence,
including disputed or conflicting evidence, to determine whether a reasonable
factfinder could have formed a firm belief or conviction that its finding was true.
In re C.H., 89 S.W.3d at 25. We examine whether disputed evidence is such that a
reasonable factfinder could not have resolved that dispute in favor of its finding.
Id.
The factfinder is the sole arbiter when assessing the credibility and
demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). “We may
not second-guess the factfinder’s resolution of a factual dispute by relying on
disputed evidence or evidence the factfinder ‘could easily have rejected as not
credible.’” In re V.A., 598 S.W.3d at 328 (quoting In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003)).
II. Predicate Termination Findings
Mother asserts the evidence is legally and factually insufficient to support
the trial court’s finding that termination is warranted under four subsections of
9
section 161.001(b)(1) of the Texas Family Code. See Tex. Fam. Code Ann.
§ 161.001(b)(1)(D), (E), (O), (P).
“To affirm a termination judgment on appeal, a court need uphold only one
termination ground — in addition to upholding a challenged best-interest finding
— even if the trial court based the termination on more than one ground.” In re
N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam). Predicate findings under
subsections (D) and (E), however, pose significant collateral consequences. See id.
at 234, 235 (discussing section 161.001(b)(1)(M), which provides that a court may
terminate a parent’s rights if it finds, by clear and convincing evidence, that the
parent has had his “parent-child relationship terminated with respect to another
child based on a finding that the parent’s conduct was in violation of Paragraph (D)
or (E)”). In light of these consequences, we are required to consider the
sufficiency of the evidence pursuant to subsections (D) or (E) when raised on
appeal. Id. at 235; see also, e.g., In re P.W., 579 S.W.3d 713, 721, 728 (Tex.
App.—Houston [14th Dist.] 2019, no pet.).
A. Subsection (E)
Subsection (E) allows for termination of parental rights if clear and
convincing evidence supports a conclusion that the parent “engaged in conduct . . .
which endangers the physical or emotional well-being of the child.” Tex. Fam.
Code Ann. § 161.001(b)(1)(E). “Endanger” means to expose the child to loss or
injury or to jeopardize the child’s emotional and physical health. In re M.C., 917
S.W.2d 268, 269 (Tex. 1996) (per curiam). For purposes of this section, “conduct”
refers to the parent’s acts, omissions, and failures to act. In re K.J.B., No. 14-19-
00473-CV, 2019 WL 5704317, at *7 (Tex. App.—Houston [14th Dist.] Nov. 5,
2019, pet. denied) (mem. op.).
While endangerment often involves physical endangerment, the statute does
10
not require that conduct be directed at a child or that the child actually suffer
injury. In re V.A., 598 S.W.3d at 331. Rather, the specific danger to the child’s
well-being may be inferred from the parent’s misconduct alone. Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re S.R., 452 S.W.3d
351, 361 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). 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 A.L.H., 515 S.W.3d 60, 92 (Tex. App.—
Houston [14th Dist.] 2017, pet. denied).
Termination under this subsection must be based on more than a single act
or omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. In re S.R., 452 S.W.3d at 361. A court may consider
actions and inactions occurring both before and after a child’s birth to establish a
“course of conduct.” In re V.A., 598 S.W.3d at 331.
A parent’s continuing substance abuse can qualify as a voluntary, deliberate,
and conscious course of conduct endangering the child’s well-being. In re J.O.A.,
283 S.W.3d 336, 345 (Tex. 2009); In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied). Additionally, a factfinder reasonably can
infer that a parent’s failure to submit to court-ordered drug tests indicates that the
parent was avoiding testing because the parent was using illegal drugs. In re
E.R.W., 528 S.W.3d 251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.). A
parent’s drug use exposes the child to the possibility the parent may be impaired or
imprisoned and, thus, unable to take care of the child. In re V.A., 598 S.W.3d at
331. But a parent’s illegal drug use is not, on its own, sufficient evidence of
endangerment; there also must be a showing of a causal connection between the
parent’s drug use and endangerment of the child. In re L.C.L., 599 S.W.3d 79, 84-
86 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (en banc).
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Similarly, incarceration of a parent alone will not support termination; but
evidence of past and continuing endangering criminal conduct, convictions, and
imprisonment may support a finding of endangerment. See In re C.A.B., 289
S.W.3d 874, 886 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Likewise,
“[d]omestic 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.).
Here, the record establishes a voluntary, deliberate, and conscious course of
conduct by Mother that endangered Nick’s emotional and physical well-being. As
shown by the summary of evidence and witness testimony at trial, Mother has a
lengthy history of substance abuse. Approximately five months before Nick’s
birth, Mother was arrested for driving while intoxicated, second offense. When
Nick was born, both he and Mother tested positive for amphetamines. According
to Peavy’s affidavit, Mother also tested positive for drug use during her pregnancy
with Nick. But despite these positive tests, Mother denied using drugs and refused
to attend a substance abuse rehabilitation facility after Nick’s birth.
The evidence shows that this pattern of substance abuse continued after Nick
was placed with his foster family. Mother was a no-show at her April and July
2022 drug screenings. See In re E.R.W., 528 S.W.3d at 265 (the factfinder may
infer from a missed drug screening that the parent was avoiding testing because she
was using illegal drugs). Mother also tested positive for methamphetamines and
cocaine at her August 2022 drug screening. According to caseworker Jones, at the
time of trial there was an “open investigation” into Mother’s care of her newborn
child because Mother’s August 2022 positive drug test indicates she again was
using drugs while pregnant. Mother also has two older children that are not in her
care because “drugs were involved” in the children’s Department cases.
12
The record also shows that Mother has a lengthy criminal history. Since
2010, Mother has been convicted of possession of marijuana, prostitution, assault
of a public servant, and two counts of driving while intoxicated. At the time of
trial, a criminal complaint charged mother with assault of a family member that
occurred in July 2022 — five months after Nick was removed from her care. The
removal affidavit also states that Mother had an altercation with her brother shortly
before Nick’s birth, during which her brother “pushed her in the tub” and “told her
that he ‘hopes her and her baby die.’” Mother also opined that her brother was
possibly put[ting] something in her food because he uses methamphetamine.”
Finally, the evidence shows that Mother has not been totally forthcoming in
her interactions with Department caseworkers. Shortly after Nick’s birth, Mother
provided the name of a friend that could assist her and Nick “24 hours a day.” But
when caseworker Peavy talked to the friend, the friend informed Peavy that Mother
“wanted [her friend] to lie to CPS” about her ability to care for Mother and Nick.
The friend also asked Peavy to not inform Mother of her statements because she
was concerned about how Mother “would act towards her.” Mother also said she
wanted to have her fifth child out of state so she would “not be involved with
CPS.” These interactions suggest a pattern of duplicitous behavior that could
endanger Nick if he was returned to Mother’s care.
In sum, this evidence of Mother’s substance abuse, criminal and domestic
violence history, her relationship with Nick, her relationships with her other
children, and her dealings with the Department constitute legally and factually
sufficient evidence to support the trial court’s subsection (E) finding. See Tex.
Fam. Code Ann. § 161.001(b)(1)(E). We overrule Mother’s challenge to the trial
court’s predicate finding under this subsection.
Because we conclude the evidence is sufficient to support termination under
13
subsection (E), we need not address the trial court’s finding pursuant to subsection
(D). See In re N.G., 577 S.W.3d at 232; see also, e.g., In re P.W., 579 S.W.3d at
728. Likewise, we need not address Mother’s challenges to the trial court’s
findings pursuant to subsections (O) and (P). See In re N.G., 577 S.W.3d at 232-
33. We therefore overrule the remainder of Mother’s first issue.
III. Best Interest Finding
In her second issue, Mother challenges the legal and factual sufficiency of
the evidence supporting the trial court’s finding that termination of her parental
rights is in Nick’s best interest.
Termination must be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(b)(2). There is a strong presumption that the best interest of a child is
served by keeping the child with the child’s parent. Id. § 153.131(b); In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006) (per curiam). Prompt, permanent placement of
the child in a safe environment also is presumed to be in the child’s best interest.
See Tex. Fam. Code Ann. § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the trial court’s best-interest finding: the
desires of the child; the physical and emotional needs of the child now and in the
future; the emotional and physical danger to the child now and in the future; the
parental abilities of the persons seeking custody; the programs available to assist
those persons seeking custody in promoting the best interest of the child; the plans
for the child by the individuals or agency seeking custody; the stability of the home
or proposed placement; acts or omissions of the parent that may indicate the
existing parent-child relationship is not appropriate; and any excuse for the
parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976);
see also Tex. Fam. Code Ann. § 263.307(b) (listing factors to consider in
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evaluating parent’s willingness and ability to provide the child with a safe
environment). This list of factors is not exhaustive and evidence is not required on
all the factors to support a finding that termination is in the child’s best interest. In
re I.L.G., 531 S.W.3d 346, 355 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied).
Evidence supporting termination under one of the predicate grounds listed in
section 161.001(b)(1) also can be considered in support of a finding that
termination is in the child’s best interest. In re S.R., 452 S.W.3d at 366.
Accordingly, the evidence showing conduct by Mother that endangered Nick’s
emotional and physical well-being, for purposes of subsection (E), is relevant to
our best-interest analysis.
The Child’s Desires
Nick was 11-months old at the time of trial and was too young to testify or
verbally express his desires. In these circumstances, the factfinder may consider
that the child has bonded with the foster family, is well cared for by the foster
family, and has spent minimal time with the parent. See In re L.G.R., 498 S.W.3d
at 205.
These conclusions are supported by the record. Nick was removed from
Mother’s care shortly after his birth and lives with his foster family. Jones said
Nick is “bonded” to his foster family and is “thriving and doing well in his
placement.” According to Jones, the foster family wants to adopt Nick. Lundquist
provided similar testimony regarding Nick’s foster family and said they are
“nurturing,” “affectionate,” and have provided Nick with “a stable life.” The trial
court reasonably could have weighed this evidence in favor of terminating
Mother’s parental rights.
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The Physical and Emotional Danger to Nick Now and in the Future
With respect to this factor, “a parent’s drug use supports a finding that
termination is in the best interest of the child.” In re L.G.R., 498 S.W.3d at 204;
see also In re I.L.G., 531 S.W.3d at 355 (“The factfinder can give great weight to
the significant factor of drug-related conduct.”) (internal quotation omitted).
We detailed above Mother’s history of substance abuse both before and after
Nick’s birth. See In re A.M.T., No. 14-18-01084-CV, 2019 WL 2097541, at *8
(Tex. App.—Houston [14th Dist.] May 14, 2019, pet. denied) (mem. op.)
(“Continued drug use may be considered as a factor in the trial court’s
determination that termination is in the child’s best interest.”). The evidence also
shows that Mother has not taken any of the steps recommended to help with these
issues. Mother denied using drugs, refused to attend a substance abuse facility
after Nick’s birth, and, as of the time of trial, had not completed the substance
abuse program prescribed by her family service plan. Considered in conjunction
with Mother’s history of substance abuse, this evidence would permit the trial
court to conclude that returning Nick to Mother’s care would risk physical and
emotional danger to him now and in the future.
Mother also has a history of engaging in criminal conduct and domestic
violence. We discussed above Mother’s criminal history, which included an arrest
for driving while intoxicated while she was pregnant with Nick. After Nick was
removed from Mother’s care, she was charged with assault of a family member.
This evidence also supports the finding that returning Nick to Mother’s care would
risk physical and emotional danger to him now and in the future.
Nick’s Physical and Emotional Needs Now and in the Future
As discussed above, the evidence shows that Nick’s foster family is meeting
16
his current physical and emotional needs. The evidence also suggests that this
level of care will continue into the future. Lundquist said Nick’s foster family has
provided him with “a stable life.” According to Jones, Nick’s foster father and
foster mother both have jobs and, during the day, Nick is in daycare. Jones said
Nick’s foster family wants to adopt him.
In contrast, the evidence suggests Mother’s home life is less stable. Mother
gave birth to her fifth child approximately two weeks before trial and, as Jones
explained, there currently is an “open investigation” with respect to this child due
to Mother’s August 2022 positive drug screening. Mother expressed that she
thought about “having her new baby out of state to not be involved with CPS,” a
course of conduct that suggests she is not putting her children’s needs first.
Moreover, Mother did not complete the services prescribed in her family
service plan, which included individual counseling, a substance abuse program,
and parenting classes. See In re I.L.G., 531 S.W.3d at 355 (“In determining the
best interest of the child in proceedings for termination of parental rights, the trial
court may properly consider that the parent did not comply with the court-ordered
service plan for reunification with the child.”).
This evidence would permit the trial court to conclude that returning Nick to
Mother’s care would not best serve his physical and emotional needs.
Parent’s Acts or Omissions That Suggest the Existing Parent-Child Relationship
is Not Appropriate and Any Excuses for Those Acts or Omissions
We have discussed above Mother’s pattern of substance abuse. Mother did
not provide any excuses for these actions nor did she take responsibility for them.
When asked at trial why she tested positive for amphetamines at the time of Nick’s
birth, Mother said: “I was like I didn’t know what — maybe somebody did
something or what because I didn’t realize.” Mother suggested she tested positive
17
for amphetamines because she took Adderall. When asked about her August 2022
positive drug screening for cocaine and methamphetamine, Mother denied using
drugs and stated that she had been “completely drug free this entire case.” This
evidence, combined with Mother’s failure to complete the family service plan,
suggests that Mother is not at a point where she is ready to take responsibility for
her actions and follow-through with a prescribed course of treatment.
Accordingly, this evidence would permit the trial court to reasonably conclude that
returning Nick to Mother’s care would not be in his best interest. This conclusion
is particularly appropriate since Mother continued to engage in endangering
conduct after Nick was removed from her care, including substance abuse and
domestic violence.
Conclusion
Viewing the evidence in the light most favorable to the judgment for our
legal sufficiency analysis and all the evidence equally for our factual sufficiency
analysis, we conclude that a reasonable factfinder could have formed a firm belief
or conviction that termination of Mother’s parental rights was in Nick’s best
interest. See Tex. Fam. Code Ann. § 161.001(b)(2). We overrule Mother’s second
issue.
IV. Sole Managing Conservatorship
In her third issue, Mother asks that we remove the Department as Nick’s
sole managing conservator. We review the trial court’s appointment of a non-
parent as sole managing conservator for abuse of discretion and reverse only if we
determine the appointment is arbitrary or unreasonable. In re J.A.J., 243 S.W.3d
611, 616 (Tex. 2007).
A parent shall be named a child’s managing conservator unless, as relevant
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here, the court finds that the appointment of a parent would significantly impair the
child’s physical health or emotional development. See Tex. Fam. Code Ann.
§ 153.131(a). Although the trial court made this finding with respect to Mother,
when the parents’ rights are terminated, as here, section 161.207 controls the
appointment of a managing conservator. In re I.L.G., 531 S.W.3d at 356-57.
Section 161.207 states, “If the court terminates the parent-child relationship with
respect to both parents or to the only living parent, the court shall appoint a
suitable, competent adult, the [Department], or a licensed child-placing agency as
managing conservator of the child.” Tex. Fam. Code Ann. § 161.207(a).
Accordingly, having terminated both Mother’s and Father’s parental rights, the
trial court was required to appoint the Department or another permissible adult or
agency as Nick’s managing conservator. See In re I.L.G., 531 S.W.3d at 357. The
appointment may be considered a “consequence of the termination.” Id.We have concluded the evidence supporting Mother’s termination is legally
and factually sufficient under section 161.001(b). Accordingly, section 161.207
controls. We conclude the trial court did not abuse its discretion in appointing the
Department as Nick’s sole managing conservator. See id. We overrule Mother’s
third issue challenging the appointment of the Department as Nick’s sole managing
conservator.
CONCLUSION
Legally and factually sufficient evidence supports the trial court’s predicate
termination finding with respect to Mother under subsection 161.001(b)(1)(E).
The trial court’s best interest finding also is supported by legally and factually
sufficient evidence. Finally, the Department did not abuse its discretion by
appointing the Department as Nick’s sole managing conservator. Therefore, we
overrule Mother’s issues on appeal and affirm the trial court’s Decree of
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Termination.
/s/ Meagan Hassan
Justice
Panel consists of Justices Jewell, Hassan, and Wilson.
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