In the Interest of D.D.D., Children v. Department of Family and Protective Services ( 2023 )

Opinion issued August 1, 2023
In The
Court of Appeals
For The
First District of Texas
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NO. 01-23-00078-CV
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IN THE INTEREST OF D.D.D., A CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2019-04085-J
MEMORANDUM OPINION
The Texas Department of Family and Protective Services (“DFPS” or “the
Department”) sought termination of the parental rights of appellant R.L.H.J.
(“Mother”) to her minor son, D.D.D. (“David”).1 After a bench trial, the trial court
1
In this opinion, we use pseudonyms for the minor child, his parents, his extended
family members, and his foster father to protect their privacy.
found that there was clear and convincing evidence to support four statutory
predicate grounds for termination. See TEX. FAM. CODE § 161.001(b)(1)(D), (E),
(O), (P). The court also found that there was clear and convincing evidence that
terminating Mother’s parental rights was in David’s best interest. The court signed
a judgment terminating Mother’s parental rights to David.
In six issues on appeal, Mother argues that (1) legally and factually
insufficient evidence exists to support termination under subsection (D);
(2) factually insufficient evidence exists to support termination under subsection (E);
(3)–(4) legally and factually insufficient evidence exists to support termination under
subsections (O) and (P); (5) factually insufficient evidence exists to support the
finding that termination was in David’s best interest; and (6) the trial court abused
its discretion by failing to name Mother as David’s possessory conservator. We
affirm.
Background
David was born in 2016. In November 2019, when he was three years old,
Mother and David both ingested PCP. David became unresponsive and was taken to
the hospital. While at the hospital, Mother began displaying similar symptoms, and
she was also admitted. Both Mother and David were in critical condition. At one
point, David went into cardiac arrest and had to be resuscitated. Both Mother and
2
David tested positive for PCP at the hospital. Mother’s and David’s medical records
from this incident were admitted into evidence at trial.
While Mother and David were still in the hospital, the Department initiated
the underlying proceeding. The Department requested David’s removal from
Mother’s care, and it sought temporary managing conservatorship. In the alternative,
the Department sought termination of Mother’s and Father’s parental rights. This
petition was accompanied by an affidavit from a Department caseworker that
detailed how Mother and David arrived at the hospital and the testing and treatments
that occurred at the hospital. This affidavit was not admitted into evidence at any of
the trial settings in this case. Following an adversary hearing, the trial court granted
the Department temporary managing conservatorship over David.
The Department prepared service plans for both Mother and Father. Mother’s
service plan required her to maintain stable housing and employment and to provide
proof of housing and employment through lease agreements and check stubs. The
plan required Mother to complete parenting classes, a psychological evaluation, a
psychiatric evaluation, individual therapy, and domestic violence awareness classes.
The plan ordered Mother to follow all recommendations made by treatment
providers and specifically required her to “take medication as prescribed.” With
respect to substance use, the service plan required Mother to complete a drug and
alcohol assessment and “contribute accurate, honest information for the
3
assessment.” Mother was also required to submit to random drug testing, including
urinalysis and hair follicle testing, upon request of the Department. The plan
informed Mother that failure to submit to requested testing “will be considered a
positive drug test.” The trial court approved the service plan and made it an order of
the court.
The trial court heard testimony in this case over four days in May 2021,
October 2021, April 2022, and September 2022. When trial began in May 2021, the
only service Mother had fully completed was parenting classes. Mother completed
a substance abuse assessment and was required to do both individual and group
substance abuse counseling. However, she “was not compliant for a period of over
two to three months,” and she was “subsequently discharged.” By the time trial
started, Mother had not successfully completed a substance abuse program, although
she had completed “substance abuse individual counseling therapy” by October
2021.
Mother also had not completed domestic violence classes by the time trial had
started. This concerned Department caseworkers because Father had reportedly been
violent towards Mother in the past. Mother reported that in 2018, she had given birth
to a premature baby that passed away “because of the domestic violence from
[Father].” In April 2019, Father was charged with assaulting Mother. Mother had
reported that she and Father were no longer in a relationship, but when Department
4
caseworker Gabrielle Bernal made an unannounced visit to Mother’s home in
February 2021, Father was present.2 At the time trial began, Mother was pregnant,
and she reported that Father was the father of this child as well. Mother gave birth
to this child, L.D. (“Logan”), in June 2021.3 Bernal was concerned that the
continuing nature of Mother’s relationship with Father could create an unsafe
environment for children.
Around the October 2021 trial setting, Mother asked Bernal whether she
needed to complete anything on her service plan. Bernal told Mother that the
Department was waiting for a recommendation from Mother’s psychological
assessment; there was an issue with Mother’s compliance with psychiatric treatment
and medication; and Mother had not provided Bernal with a doctor’s note concerning
whether she did not need to take medication while breastfeeding Logan. Mother had
not seen her psychiatrist since March 2021, and she had not started taking her
prescribed medications. Additionally, although Mother completed a psychiatric
evaluation, she did not accurately report information concerning her drug usage.
Mother reported only that she had used marijuana three years before the evaluation,
2
Bernal agreed with the Department’s counsel that there was an ongoing criminal
case “where there’s a restraining order in which [Mother and Father are] not
supposed to be together.”
3
Mother’s parental rights to Logan were not at issue in the underlying proceeding.
5
but the Department initiated these proceedings following Mother’s usage of PCP and
she tested positive for cocaine and PCP multiple times throughout the proceedings.
By the April 2022 trial setting, Mother had one outstanding service to
complete: substance abuse counseling. Although Mother had previously completed
substance abuse counseling, she received a new referral for additional counseling
following positive drug tests in October and November 2021. Mother missed
appointments and was “unsuccessfully discharged” from counseling with the new
provider “due to lack of commitment or engagement.” Mother testified that she had
difficulty communicating with this service provider and she unsuccessfully tried to
find substance abuse classes on her own.
The Department required Mother to report for weekly urinalysis testing, and
she was required to submit a hair sample each month. The Department obtained
temporary managing conservatorship of David in November 2019, and Mother
“continued to test positive in her hair” for PCP, cocaine, and marijuana throughout
2020. In February 2021, Mother’s hair sample tested positive for marijuana. In April
2021, Mother’s last urinalysis prior to the beginning of trial was negative, but she
did not submit a hair sample. This concerned the Department because Mother was
pregnant and her most recent hair follicle at the time, submitted in March 2021,
tested positive for cocaine. Mother’s hair sample submitted in October 2021 tested
positive for cocaine and PCP. Her hair sample submitted in November 2021 tested
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positive for cocaine, cocaine metabolites, marijuana, and marijuana metabolites. Her
urinalysis sample submitted in February 2022 tested positive for benzodiazepines.
This was the last drug test that Mother completed.
Mother was not consistent in reporting for drug testing throughout the case.
At the October 2021 trial setting, Bernal agreed that Mother had “missed a majority”
of her requested drug tests, but “[s]he began testing more frequently in July [2021].”
Mother also did not appear for drug testing in December 2021, January 2022, or
March 2022. At the September 2022 trial setting, Mother testified that she had not
received any requests for drug testing in several months. She disagreed that she had
skipped any required drug testing in 2022.
Mother had multiple urinalysis and hair follicle tests that were negative. She
tested negative for all substances when she gave birth to Logan in June 2021, and
Logan also tested negative for all substances. In July 2021 and August 2021, both
her urinalysis and hair sample were negative for all substances. Mother also tested
negative on a urinalysis performed in November 2021.
The Department had concerns about the safety and stability of Mother’s
housing. She obtained housing in early 2021, and prior to that she “was between
multiple people.” Mother’s lease was set to expire in November 2021, and she
reported to Bernal that she wanted to find a different apartment. Mother never
provided a lease agreement to Bernal. As of May 2021, Mother had not been
7
employed, and SSI disability was her source of income. By October 2021, Mother
reported to Bernal that she had recently started working, although she had provided
no check stubs or other documentation.
Mother had supervised visitation with David during the pendency of the case.
Mother did well in the visits, and although she was occasionally “occupied by the
phone,” she was “never inappropriate” with David. Bernal also witnessed Mother
interact with Logan, and Mother “appear[ed] appropriate” around Logan. Mother
brought David clothes and toys, and Mother’s mother brought food to the visits.
Mother did sometimes have trouble “redirecting” David, but Bernal acknowledged
that Mother improved in this regard over the course of the visits. David “kind of
shut[] down” when Bernal picked him up to take him to visits with Mother, and
sometimes he did not “want to leave where he’s from to go to the visit,” but he did
“fairly well” during the visits themselves. Mother testified that David did well during
the visits, but he did not do well after visits. Sometimes she had to reassure him
about going with the caseworker after the visit, and she had to tell him that he and
Logan would be together “very soon.”
The Department placed David with Foster Father in November 2020. David
had been diagnosed with Post Traumatic Stress Disorder and he “had some
significant behavior issues,” including “emotional disturbance” and ADHD, for
which he needed medication. However, because David had previously suffered from
8
a drug overdose, he had to see a cardiologist and undergo several tests before he
could be placed on medication. By the October 2021 trial setting, David no longer
took any medication for heart problems. He continued to take a “low dosage” of
Adderall for ADHD. Foster Father had been “very proactive” in setting up David’s
medical appointments and attending follow-up appointments to ensure that David’s
medication “is appropriate and continues to be recommended.” Foster Father also
ensured that David attended all necessary meetings for receiving educational
services.
David had “acted out on other children” in the past and tended to throw things
when upset. Because of David’s behavioral issues, he “require[d] a very strict,
structured environment” and “require[d] constant supervision.” The Department
believed that caring for David was “a lot different” than caring for a newborn child
such as Logan. Under Foster Father’s care, David had “progressed tremendously.”
His behavior had stabilized, he had become “very positive” and happy, and he was
able to “actually talk and verbalize his emotions and feelings and moments when
he’s triggered.” David had become a good student with “very minimal behavior
reports.” David had had no behavioral issues at school since at least December 2021.
Bernal testified that David had “just drastically changed into a different child.”
The Department considered several familial placements for David, including
David’s paternal grandfather, his maternal grandmother, and an aunt of Mother’s
9
(“Dierdre”). The Department did not approve placement with either the paternal
grandfather or the maternal grandmother. In July 2021, the trial court ordered the
Department to conduct a home study for Dierdre, and the study was completed later
that month. By the October 2021 trial setting, when trial resumed, the home study
had not yet been presented to the attorneys involved in the case because Bernal did
not “have the final approval or denial at this time to provide.” The Department had
approved Dierdre’s home study by the April 2022 trial setting, but the new
caseworker, Angela Guerrero, did not wish to place David with Dierdre.
Dierdre obtained custody of Logan shortly after his birth in June 2021. The
Department considered Dierdre’s home to be a suitable placement for Logan, and
Dierdre was meeting all of his needs. David, however, had “very special needs” and
was “very bonded” with Foster Father. The Department believed that moving David
from his placement with Foster Father would be “traumatic” because David had
experienced “immense trauma” following his overdose and was “very well
established” in his current placement. Mother was allowed to go to Dierdre’s house
for supervised visits with Logan, and she was present at Dierdre’s house for around
twelve hours per day, every day. Dierdre told Guerrero and Betsi Longoria, the Child
Advocates coordinator assigned to the case, that she was willing to allow David to
be around Mother. The Department had no concerns about Dierdre allowing Father
to be present at her house.
10
Bernal acknowledged that Dierdre wanted David to be placed with her,
Dierdre and David were biologically related, and placing David in Dierdre’s house
would allow him to live with his brother Logan. Guerrero also testified that Dierdre
had told her that she wanted David to be placed with her. However, Guerrero also
testified that Dierdre told her during a visit in January 2022 that she did not want
David to be placed with her because she knew that Foster Father was meeting
David’s needs, David was bonded to Foster Father, and she had heard David
“express sentiments” about Foster Father.4 Dierdre told Guerrero that she just
wanted David to “be able to know his family” and that she would be “comfortable
with visits” with David. Dierdre’s statements played a role in the Department’s
decision to keep David with Foster Father.
At the September 2022 trial setting, Dierdre testified that she did not believe
that it was appropriate for David and Logan to be returned to Mother and she would
like to raise both boys. She agreed that she would “be protective” of the boys and
would not allow Mother to have them until an “appropriate” time. Dierdre denied
ever saying that she did not want David placed in her home. She believed it would
4
Guerrero, Foster Father, and Longoria testified that Foster Father and Dierdre have
met once. Guerrero and Longoria attempted to schedule more visits between the
two, but Dierdre “stated she only wanted to have that one visit” and she “was cool
with” David living with Foster Father. Longoria testified that she believes Dierdre
does not want her family to know that she is comfortable with David’s placement
with Foster Father.
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be in David’s best interest to be placed with Logan and that separating them would
be traumatic for both of them. She disagreed that removing David from his
placement with Foster Father would be traumatic for him.
Dierdre and Logan attended visitations with David and Mother. David was
“initially very timid and appeared uncomfortable” around Dierdre, but he had
“warmed up a little bit” and considered her a familiar face. David was also shy
around Logan at first, but he “like[d] seeing his sibling” and he interacted with Logan
“before going on doing his own tasks.” Guerrero agreed that David and Logan
appeared to have bonded. Mother testified that David is “very observant” with
Logan, he is a “good brother” to Logan, and the boys have fun at their visits. Mother
believed it would be in both David’s and Logan’s best interest for Dierdre to have
custody of both boys, and she believed that separating the two boys would negatively
impact them.
At the time trial began in May 2021, David was five years old. David
expressed to Bernal, Guerrero, Foster Father, and Longoria that he wanted to stay in
his current placement with Foster Father. David talked to Bernal about “the home
environment and the people he gets to see and the fun they have together,” and he
referred to Foster Father as his father. Bernal had no doubts that Foster Father would
support David financially, medically, and emotionally. She had no concerns about
drug use in Foster Father’s home. Foster Father testified that he has “great
12
communications” with Dierdre and that, if allowed to adopt David, he would work
to maintain David’s relationship with Logan.
Following trial, the trial court signed an order terminating both Mother’s and
Father’s parental rights to David.5 The court found, by clear and convincing
evidence, that Mother had violated Family Code subsections 161.001(b)(1)(D), (E),
(O), and (P). The court also found that termination of Mother’s parental rights was
in David’s best interest. The court appointed the Department as David’s sole
managing conservator. This appeal followed.
Sufficiency of the Evidence
In her first four issues, Mother challenges the sufficiency of the evidence to
support the statutory predicate grounds for termination found by the trial court. She
challenges the legal and factual sufficiency of the evidence supporting the trial
court’s findings under subsections 161.001(b)(1)(D), (O), and (P). She challenges
the factual sufficiency of the evidence supporting the finding under subsection
161.001(b)(1)(E). In her fifth issue, Mother challenges the factual sufficiency of the
evidence supporting the trial court’s finding that termination of her parental rights is
in David’s best interest.
5
Father did not appeal the termination of his parental rights.
13
A. Standard of Review
A parent’s right to the “companionship, care, custody, and management” of
her child is an interest “far more precious than any property right.” Santosky v.
Kramer, 455 U.S. 745, 758–59 (1982) (quotations omitted); see Troxel v. Granville,
530 U.S. 57, 65 (2000) (stating that this interest “is perhaps the oldest of the
fundamental liberty interests recognized by” United States Supreme Court). We
strictly construe involuntary termination statutes in favor of the parent. In re E.N.C.,
384 S.W.3d 796, 802 (Tex. 2012). However, although parental rights are “of
constitutional magnitude,” they are not absolute. In re C.H., 89 S.W.3d 17, 26 (Tex.
2002). It is “essential” that courts do not sacrifice the child’s emotional and physical
interests merely to preserve the parent’s rights. Id.Family Code section 161.001 balances the competing interests of the parent
and the child by permitting termination of parental rights only if the party seeking
termination establishes both that (1) the parent’s acts or omissions satisfy at least
one statutory predicate ground for termination; and (2) termination is in the child’s
best interest. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018); see TEX. FAM. CODE
§ 161.001(b). Both the Family Code and the Due Process Clause of the United States
Constitution require proof by clear and convincing evidence in termination of
parental rights cases. In re E.N.C., 384 S.W.3d at 802; see TEX. FAM. CODE
§ 161.001(b); Santosky, 455 U.S. at 769 (stating that clear and convincing standard
14
of proof “adequately conveys to the factfinder the level of subjective certainty about
his factual conclusions necessary to satisfy due process”). The Family Code defines
“clear and convincing evidence” as “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 § 101.007; In re J.F.C., 96
S.W.3d 256, 264 (Tex. 2002).
Because the standard of proof at trial is clear and convincing evidence, on
appeal we apply a heightened standard of review when examining the sufficiency of
the evidence. In re J.W., 645 S.W.3d 726, 741 (Tex. 2022); In re A.C., 560 S.W.3d
at 630. In reviewing a legal sufficiency challenge, we must determine whether a
reasonable factfinder could have formed a firm belief or conviction that the finding
under review was true. In re J.W., 645 S.W.3d at 741 (quotations omitted). Even
under this heightened standard, we must grant deference to the factfinder, “who
heard the witnesses and evaluated their credibility.” In re J.F.-G., 627 S.W.3d 304,
311–12 (Tex. 2021). We view the evidence in the light most favorable to the finding.
In re J.W., 645 S.W.3d at 741. We assume the factfinder resolved disputed facts in
favor of its finding if a reasonable factfinder could do so, and we disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
incredible. Id. We may not, however, disregard undisputed facts that do not support
15
the finding. Id.; In re A.C., 560 S.W.3d at 630–31. The factfinder remains the “sole
arbiter of the witnesses’ credibility and demeanor.” In re J.F.-G., 627 S.W.3d at 312.
In reviewing a factual sufficiency challenge, we must consider the entire
record—including evidence both supporting and contradicting the finding—and
determine whether the factfinder could have reasonably formed a firm belief or
conviction that the finding was true. In re C.H., 89 S.W.3d at 25–26; see In re A.C.,
560 S.W.3d at 631 (stating that factual sufficiency review “requires weighing
disputed evidence contrary to the finding against all the evidence favoring the
finding”). If the disputed evidence that a reasonable factfinder could not have
credited in favor of the finding is so significant that the factfinder could not
reasonably have formed a firm belief or conviction that the finding was true, the
evidence is factually insufficient. In re A.C., 560 S.W.3d at 631; In re H.R.M., 209
S.W.3d 105, 108 (Tex. 2006) (per curiam).
To affirm a termination judgment on appeal, we need uphold only one
predicate ground—in addition to upholding a challenged best interest finding—even
if the trial court based termination on more than one predicate ground. In re N.G.,
577 S.W.3d 230, 232 (Tex. 2019) (per curiam); In re A.V., 113 S.W.3d 355, 362
(Tex. 2003). However, termination of parental rights under subsections (D) and (E)
can serve as the basis for termination of a parent’s rights to another child in the
future. See TEX. FAM. CODE § 161.001(b)(1)(M); In re N.G., 577 S.W.3d at 234. As
16
a result, due process requires review of a trial court’s findings under subsections (D)
and (E) “even when another ground is sufficient for termination, because of the
potential consequences for parental rights to a different child.” In re N.G., 577
S.W.3d at 235.
B. Statutory Predicate Grounds for Termination
1. Termination under Subsections (D) and (E)
The trial court may terminate the parent-child relationship if it finds 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 § 161.001(b)(1)(D). The trial
court may also terminate the parent-child relationship if it finds 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. Id. § 161.001(b)(1)(E). Because both of these
subsections concern endangerment and the evidence relevant to each subsection may
overlap, we discuss these predicate findings together.
“Endanger” means to expose a child to loss or injury or to jeopardize the
child’s emotional or physical well-being. In re J.W., 645 S.W.3d at 748. This means
“more than a threat of metaphysical injury or the possible ill effects of a less-than-
ideal family environment.” Id. (quotations omitted).
17
Endangerment under subsection (D) “may be established by evidence relating
to the child’s environment.” In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied). “Environment” refers to the acceptability of the
child’s living conditions, as well as the parent’s conduct in the home. In re V.A., 598
S.W.3d 317, 328 (Tex. App.—Houston [14th Dist.] 2020, pet. denied); In re S.R.,
452 S.W.3d at 360. Inappropriate, abusive, or unlawful conduct by a parent or
another person who lives in the child’s home can create an environment that
endangers the child’s physical and emotional well-being. In re S.R., 452 S.W.3d at
360. Parental drug use also supports the conclusion that the child’s surroundings
endanger his or her physical or emotional well-being. In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.—Fort Worth 2003, no pet.). A child is endangered when the
environment creates a potential for danger that the parent is aware of but consciously
disregards. In re V.A., 598 S.W.3d at 328; In re S.R., 452 S.W.3d at 360. A court
may terminate parental rights under this subsection based on a single act or omission.
In re V.A., 598 S.W.3d at 329; In re M.D.M., 579 S.W.3d 744, 764 (Tex. App.—
Houston [1st Dist.] 2019, no pet.).
The relevant time period for evaluating subsection (D) is before the child’s
removal from the parent because conditions or surroundings cannot endanger a child
if the child is not exposed to them. In re J.W., 645 S.W.3d at 749 (quoting In re
O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied)); In re S.R.,
18
452 S.W.3d at 360. The suitability of a child’s living conditions and the conduct of
the parent and others in the home are relevant to this inquiry. In re J.W., 645 S.W.3d
at 749. Evidence that a parent will knowingly expose the child to a dangerous
environment in the future is not proof that the parent has knowingly exposed the
child to a dangerous environment in the past, which is the focus under subsection
(D). Id.
Under subsection (E), the Department must show that “the endangerment was
the result of the parent’s conduct, including acts, omissions, or failure to act.” In re
S.R., 452 S.W.3d at 360. This subsection requires more than a single act or omission
to support termination; instead, the statute requires “a voluntary, deliberate, and
conscious course of conduct by the parent.” Id.; In re J.T.G., 121 S.W.3d at 125.
Unlike under subsection (D), in evaluating the sufficiency of the evidence under
subsection (E), we may consider conduct both before and after the Department
removed the child from the home. In re S.R., 452 S.W.3d at 360.
It is not necessary that the parent’s conduct be directed at the child or that the
child actually suffer injury. In re J.W., 645 S.W.3d at 748. “The specific danger to
the child’s well-being may be inferred from parental misconduct standing alone.” In
re N.J.H., 575 S.W.3d 822, 831 (Tex. App.—Houston [1st Dist.] 2018, pet. denied);
In re S.R., 452 S.W.3d at 360. A parent’s conduct that subjects a child to a life of
uncertainty and instability endangers the child’s physical and emotional well-being.
19
In re M.D.M., 579 S.W.3d at 765. A parent’s past endangering conduct may create
an inference that the conduct may recur and further jeopardize the child’s present or
future physical or emotional well-being. In re J.D.G., 570 S.W.3d 839, 851 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied). Drug use and its effects on the parent’s
life and ability to parent may establish an endangering course of conduct. In re
J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re A.A.M., 464 S.W.3d 421, 426 (Tex.
App.—Houston [1st Dist.] 2015, no pet.) (“Illegal drug use creates the possibility
that the parent will be impaired or imprisoned and thus incapable of parenting.”).
Abusive and violent conduct by a parent in a family relationship may also endanger
a child’s well-being. In re A.A.M., 464 S.W.3d at 426; In re S.C.F., 522 S.W.3d 693,
700 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“Domestic violence may
be considered as evidence of endangerment.”).
In arguing that legally and factually insufficient evidence supports the trial
court’s finding under subsection (D), Mother contends that the record contains no
evidence of David’s environment before the Department removed him from Mother
in November 2019. Mother acknowledges that David “somehow ingested a
controlled substance at some point on November 9,” but she argues that that fact,
standing alone, cannot support a finding by clear and convincing evidence that she
knowingly placed or knowingly allowed David to remain in conditions or
surroundings which endangered his physical or emotional well-being. We disagree.
20
While Mother is correct that the record contains no evidence concerning the
physical condition of the home at the time of David’s removal from her custody, in
a subsection (D) analysis we may also consider the conduct of a parent in the home,
as a parent’s conduct can create an endangering environment for a child. In re V.A.,
598 S.W.3d at 328; In re S.R., 452 S.W.3d at 360; see In re J.W., 645 S.W.3d at 749
(“The suitability of a child’s living conditions and the conduct of parents or others
in the home are relevant to a Subsection (D) inquiry.”). Specifically, a parent’s drug
use supports the conclusion that the child’s surroundings endanger their physical or
emotional well-being. In re J.T.G., 121 S.W.3d at 125.
At trial, Mother agreed that both she and David ingested PCP in November
2019, leading to their hospitalization. She acknowledged that they both tested
positive for PCP ingestion and that this led to serious health consequences for three-
year-old David, who went into cardiac arrest and had to be resuscitated at the
hospital. Mother agreed with the Department’s counsel that “doing illegal drugs
while a two-year-old [sic] is around is extremely dangerous.”
None of the testimony at trial detailed how David ingested PCP. However,
David’s medical records, which were admitted into evidence, contain some
information on the events leading to David’s admittance to the hospital. A “clinical
note” completed by a doctor on November 11, 2019, stated:
[David] is a 3 year old male who was brought to Children’s Memorial
Hermann Hospital with acute onset of altered mental status. The history
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is obtained from chart review and discussion with [David’s] maternal
grandmother (MGM) who is at bedside.
[David] lives with his mother, maternal grandmother (MGM),
grandmother’s husband, maternal uncle, and his older cousin. On
Friday evening 11/08, [David] stayed the night at his paternal
grandmother’s apartment. MGM says mother spent the next day on
Saturday 11/09 at paternal grandmother’s apartment complex. MGM
says mother also has a friend who lives in the apartment complex, and
she believes she took [David] with her to the friend’s apartment. Mother
brought [David] home at approximately 7:15 PM on Saturday night
11/09. MGM says [David] was talkative and acting normally. At
approximately 8 PM, MGM put [David] in the bedroom with his
mother, so MGM and her husband could go buy tacos for the family for
dinner. The bedroom is a single room without an adjacent bathroom.
MGM says after approximately 20 minutes, they were on the way home
from the taco stand, and mother called her to tell her that [David] was
unresponsive and not waking up. [David’s] 13-year old cousin was also
in the house at the time, and he called EMS. MGM says they hurried
home, and when they arrived, EMS was at the home. EMS reported
[David] was unresponsive to painful stimuli and drooling. They placed
him on supplemental oxygen via nonrebreather mask and transported
him to Children’s Memorial Hermann Hospital.
MGM and mother also arrived at CMHH Emergency Department.
Mother was described as anxious from presentation, and while
providing history to the physicians, she developed altered mental status
and vomited. She became unresponsive and was transferred to main ED
for medical care, which included intubation to protect her airway.
A clinical note in Mother’s medical records stated that David’s maternal
grandmother reported that prior to hospitalization, “the patient and his mother had
recently returned from an outing with a friend,” Mother’s “demeanor was stable and
appropriate,” and David “was left in the care of [Mother] while [maternal
grandmother] left to obtain food.”
22
The trial court had evidence before it that David, a three-year-old child,
somehow ingested PCP while in Mother’s care. He was rushed to the hospital and,
while at the hospital, went into cardiac arrest and had to be resuscitated. That same
evening, Mother also ingested PCP and became ill enough to require hospitalization.
It is undisputed that both Mother and David tested positive for PCP at the hospital.
A finding under subsection (D) may be based on a single act or omission. See In re
V.A., 598 S.W.3d at 329. The evidence in the record demonstrates that Mother
allowed David to be in an environment in which he could—and did—ingest a
dangerous drug. See Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied) (noting that while subsection (D) inquiry “focuses on
the evidence of the child’s physical environment,” environment “produced by the
conduct of the parents bears on the determination of whether the child’s
surroundings threaten his well-being”).
We conclude that, when viewing the evidence in the light most favorable to
the finding, the trial court could have reasonably formed a firm belief or conviction
that Mother knowingly placed or knowingly allowed David to remain in conditions
or surroundings which endangered his physical or emotional well-being. See TEX.
FAM. CODE § 161.001(b)(1)(D); In re J.W., 645 S.W.3d at 748–49; In re J.T.G., 121
S.W.3d at 125. We further conclude that, when considering the entire record, the
trial court still could have reasonably formed a firm belief or conviction that Mother
23
knowingly placed David in an endangering environment in violation of subsection
(D). We therefore hold that legally and factually sufficient evidence supports the
trial court’s predicate finding under subsection (D).
Turning to subsection (E), Mother acknowledges that she and David tested
positive for PCP at the hospital in November 2019, but she argues that there is no
evidence in the record of how David ingested the PCP and there is no evidence that
she had “engaged in this type of behavior prior to that one incident.” Mother argues
that, therefore, there is no evidence that she engaged in an endangering course of
conduct. Mother also acknowledges that a parent’s continuing drug use can qualify
as a voluntary course of conduct that endangers a child, but she argues that the record
contains no evidence that, following David’s removal, Mother’s continued drug use
endangered David or Logan, who tested negative for drugs when he was born in June
2021, during the pendency of this case. Mother further acknowledges that Father had
been violent with her in the past, but she argues that there is no evidence in the record
that she had any contact with Father. Mother argues that the evidence is factually
insufficient to support the trial court’s predicate finding under subsection (E).
Texas courts have repeatedly held that drug use and its effects on the parent’s
life and ability to parent may establish an endangering course of conduct under
subsection (E). See, e.g., In re J.O.A., 283 S.W.3d at 345; In re A.A.M., 464 S.W.3d
at 426. Illegal drug use “exposes the child to the possibility that the parent may be
24
impaired or imprisoned.” In re S.C.F., 522 S.W.3d at 700; In re A.M., 495 S.W.3d
573, 579 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (quotations omitted).
Drug activity “significantly harms the parenting relationship” and can constitute
endangerment even if it occurs outside of the child’s presence. In re A.M., 495
S.W.3d at 579. “In addition, 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, may
support a finding that the parent engaged in conduct that endangered the child’s
physical or emotional well-being.” Id. at 580 (quotations omitted). A factfinder can
infer that a parent’s failure to submit to court-ordered drug testing indicates that the
parent was avoiding testing because they were using drugs. In re C.A.B., 289 S.W.3d
874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
As discussed above, the Department removed David from Mother’s care after
an incident in which Mother and David ingested PCP and had to be hospitalized.
Although this was the only instance in which David ingested drugs, Mother
repeatedly tested positive for drugs—including PCP, cocaine, and marijuana—
throughout the pendency of the proceeding. Mother tested positive for all three drugs
throughout 2020 and early 2021. Around the time of Logan’s birth in June 2021,
Mother tested negative for all substances for a couple of months, and Logan did not
have drugs in his system when he was born. However, testing of Mother’s hair
samples collected in October 2021 and November 2021—several months after
25
Logan’s birth—yielded positive results for both cocaine and marijuana. Mother
testified that she had to stop breastfeeding Logan after these positive drug test
results. In February 2022, Mother tested positive for benzodiazepines.
Mother cites the Fourteenth Court of Appeals’ decision in In re L.C.L., 599
S.W.3d 79, 84–86 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (en banc),
for the proposition that a parent’s drug use standing alone, without evidence of how
that behavior endangers a child, cannot support termination under subsection (E).
She points out that she had visitation with David throughout the pendency of the
case and she always behaved appropriately with him during the visits, even though
she also had positive drug tests. She also argues that there was no evidence that her
drug use during this case negatively affected Logan.
In In re L.C.L., the Department received a referral of neglectful supervision
of the mother’s three children, including allegations that the children were often left
home alone in a house with no electricity. Id. at 82–83. A caseworker visited the
house, observed that the children appeared clean and healthy, noted that the house
had working utilities and was free from safety hazards, and learned that the children
were not left at home for days at a time. Id. at 83. The caseworker asked the mother
to take a drug test, and the hair follicle test yielded a positive result for marijuana
and cocaine. Id. Following trial, “[t]he sole basis for termination of [the mother’s]
rights was that she tested positive for drugs both initially and throughout the
26
proceedings.” Id. at 84. No evidence at trial, however, connected the mother’s
positive drug test results to “any activity that endangered her children.” Id. The
Fourteenth Court stated that “[a] plain language reading of the statute requires a
causal connection between [the mother’s] drug use and the alleged endangerment.”
Id.
We first note that this Court has not adopted the Fourteenth Court’s rationale
in In re L.C.L. Furthermore, this case is factually distinguishable because here there
was evidence that Mother’s drug usage did endanger David: Mother and David both
ingested PCP in November 2019, and this incident led to their hospitalizations and
three-year-old David’s near death from cardiac arrest. Following David’s removal
from Mother’s care and the initiation of this termination proceeding, Mother
continued to test positive for PCP, cocaine, and marijuana. Mother’s illegal drug use
before David’s removal and during the pendency of this case supports a conclusion
that Mother engaged in conduct that endangered David’s physical and emotional
well-being. See In re J.O.A., 283 S.W.3d at 345; In re A.A.M., 464 S.W.3d at 426.
In addition, the record reflected that Mother continued to see Father even
though he had engaged in domestic violence against her. Mother testified that Father
assaulted her in 2018 when she was pregnant. This child was born prematurely and
passed away. Mother reported to Bernal that the child passed away “because of the
domestic violence from the father.” In April 2019, prior to David being removed
27
from Mother’s care, Father was arrested and charged with assaulting Mother.
Although Father was ordered not to contact Mother, Father and Mother continued to
see each other. In February 2021, Bernal visited Mother’s home and Father was
present. Mother characterized her relationship with Father as “on and off,” and she
acknowledged that Logan, born during the pendency of this case, was Father’s child.
This Court has held that a parent’s “continued association with a known abuser is a
conscious choice that endangers a child’s physical and emotional wellbeing because
it exposes the child to the possibility of violence.” In re J.T., No. 01-19-00908-CV,
2020 WL 1942463, at *9 (Tex. App.—Houston [1st Dist.] Apr. 23, 2020, pet.
denied) (mem. op.); see In re N.E., No. 01-22-00739-CV, 2023 WL 2530197, at *9
(Tex. App.—Houston [1st Dist.] Mar. 16, 2023, pet. denied) (mem. op.)
(considering, in conducting subsection (E) analysis, fact that mother remained in
contact with father despite his history of domestic violence towards her).
When viewing the entire record in this case, we conclude that the disputed
evidence is not so significant as to prevent the trial court from forming a firm belief
or conviction that Mother engaged in conduct that endangered David’s physical or
emotional well-being. See TEX. FAM. CODE § 161.001(b)(1)(E). We hold that
factually sufficient evidence supports the trial court’s finding under subsection (E).
28
We overrule Mother’s first and second issues.6
C. Best Interest Finding
In addition to a statutory predicate ground for termination, the trial court must
also find by clear and convincing evidence that termination is in the child’s best
interest. Id. § 161.001(b)(2). There is a strong presumption “that the best interest of
a child is served by keeping the child with a parent,” see In re R.R., 209 S.W.3d 112,
116 (Tex. 2006) (per curiam), but there is also a presumption that “the prompt and
permanent placement of the child in a safe environment” is in the child’s best
interest. TEX. FAM. CODE § 263.307(a). The best-interest inquiry is “child-centered
and focuses on the child’s well-being, safety, and development.” In re A.C., 560
S.W.3d at 631.
In reviewing the trial court’s best-interest finding, we consider several non-
exclusive factors including: (1) the child’s desires; (2) the child’s emotional and
physical needs now and in the future; (3) the emotional and physical danger to the
child now and in the future; (4) the parental abilities of the individuals seeking
custody; (5) whether programs are available to assist those individuals; (6) the plans
for the child by those individuals; (7) the stability of the proposed placement; (8) the
6
Because we conclude that legally and factually sufficient evidence supported two
statutory predicate grounds for termination—subsections (D) and (E)—we need not
address Mother’s third and fourth issues: whether legally and factually sufficient
evidence supports the other two predicate grounds found by the trial court,
subsections (O) and (P). See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
29
parent’s acts or omissions that may indicate the existing parent-child relationship is
improper; and (9) any excuse for the parent’s acts or omissions. In re E.N.C., 384
S.W.3d at 807 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)).
The court need not have evidence on every element to make a valid finding
on best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.]
2017, pet. denied); In re J.G.S., 574 S.W.3d 101, 122 (Tex. App.—Houston [1st
Dist.] 2019, pet. denied) (“The absence of evidence about some of the factors would
not preclude a factfinder from reasonably forming a strong conviction or belief that
termination is in the child’s best interest.”). But a lack of evidence “does not
constitute clear and convincing evidence.” In re E.N.C., 384 S.W.3d at 808.
No one factor is controlling, but in a particular situation, analysis of a single
factor may be adequate to support a finding that termination is in the best interest of
the child. In re J.M.T., 519 S.W.3d at 268; see In re J.D.G., 570 S.W.3d at 853 (“In
some cases, undisputed evidence of only one factor may be sufficient to support a
finding that termination is in the child’s best interest; in other cases, there could be
more complex facts in which paltry evidence relevant to each consideration
mentioned in Holley would not suffice to support termination.”) (quotations
omitted). Proof of acts or omissions relevant to a predicate ground for termination
does not relieve the Department of proving that termination is in the child’s best
interest, but the same evidence may be probative of both elements. In re A.C., 560
30
S.W.3d at 631–32. We may consider circumstantial evidence, subjective factors,
“and the totality of the evidence as well as the direct evidence.” In re J.D.G., 570
S.W.3d at 854 (quotations omitted).
In arguing that factually insufficient evidence supports the trial court’s best
interest finding, Mother emphasizes that she is not seeking managing
conservatorship of David. Instead, she wants David to live with Dierdre and Logan.
1. David’s Desires
David was five years old when trial began and six years old when it concluded.
He did not testify at any of the trial settings. David enjoyed visiting with Logan, had
positive interactions with Dierdre, and did “fairly well” when visiting with Mother.
Mother testified that sometimes David gets “a hesitation” at the end of visits when
he must leave with the caseworker, and either Mother or Dierdre had to “let him
know he’s going to be okay” and let him know that he was “going to be with [Logan]
very soon.” Mother also testified that David “keeps asking us when this is going to
be over.” She believed that David wished “to live under the same roof with his
brother.”
However, Bernal, Guerrero, Longoria, and Foster Father all testified that
throughout the course of the proceedings, David had expressed on multiple
occasions that he wanted to stay in the placement with Foster Father. Bernal testified
that David enjoyed telling her about the home life and fun he has with Foster Father,
31
whom he referred to as his father. David was “very attached” to Foster Father’s
parents and siblings, he considered Foster Father’s dogs to be “his brothers,” and he
considered Foster Father’s neighbors to be his close friends.
2. David’s Emotional and Physical Needs
Following his hospitalization in 2019, David was diagnosed with PTSD. He
was also diagnosed with “emotional disturbance” and ADHD, and he had
“significant behavior issues” after being removed from Mother’s care. David needed
medication to treat these issues, but due to his prior drug overdose, his cardiologist
had to approve any medications. By the October 2021 trial setting, David no longer
needed to take any heart medications, although he still needed a “low dosage of
Adderall” for ADHD. Foster Father had been “very proactive” in attending to
David’s medical and psychological care and in ensuring that David’s educational
needs were met. By the last trial setting in September 2022, David had been
discharged from seeing a cardiologist, behavioral specialist, and therapist.
Bernal testified that David had behavioral issues both inside and outside of
the school setting. He had conflict with both peers and teachers, and he had “acted
out on other children.” Both Bernal and Foster Father testified that early in his
education, David tended to throw things when upset, and he had “flipped tables,
flipped chairs, [and] would destroy the toys.” David’s teachers would sometimes
need to “take the entire classroom out” and call Foster Father to “talk to him and
32
bring him down.”7 Foster Father testified that when David was first placed in his
home, he was “very hyper, running around, unable to really keep his attention on
lots of things at one time.” David was also “very shy [and] unable to communicate
his feelings.” Bernal and Guerrero agreed with the Department’s counsel that David
“require[d] a very strict, structured environment,” a “very calm” environment, and
“constant supervision.”
Bernal, Guerrero, Longoria, and Foster Father all testified that David’s
behavioral issues had improved significantly since he had been placed with Foster
Father. Bernal characterized David’s progress as “tremendous” and testified that
David’s behavior had stabilized, he was “very positive,” and he was able to verbalize
his emotions and feelings when he experiences something that triggers him. David
was doing “very well in school” and had had “minimal behavior reports” since early
2021. Guerrero agreed that David had not had a behavioral issue at school since she
was assigned to the case in December 2021. She also testified that Foster Father had
met all David’s needs since the beginning of the placement and that David had
“excelled and improved with his behaviors and in the school setting.” Longoria
testified that “the consistency, nurturing, following up with services is extremely
important,” and Foster Father had “been able to really work closely with the school
7
Foster Father agreed that he had a “pretty flexible” schedule because he “work[ed]
on [his] own time.”
33
to help [David] settle down in school to where he is now.” As of the last trial setting
in September 2022, David’s services were “all academic based” and not “behavioral
based.”
Foster Father testified that he had not received a call from David’s school
concerning his behavior “at all this entire year, including last school year.” His
teachers “love him,” and David “interacts with the students like a normal first grader
student.” David was “on grade level and above grade level on certain academic
issues.” Foster Father attributed the change in David’s behavior to being “very
persistent with consistency.” Foster Father testified:
We have a schedule; I’m very strict on that schedule. We go and do lots
of different things to interact. We increased our social skills with other
children around his age. Having a stable environment at home, I believe
has helped in the sense that he sees me on a daily basis, it’s a very
routine schedule, and schedules help him get comfortable.
When things are kind of taken out of array, he kind of can get very
excited sometimes, so having a schedule is very important, and we’ve
just worked on communication.
The caseworkers, Longoria, and Foster Father all testified that David had made
substantial progress behaviorally since being placed in Foster Father’s care, and the
consistency of his schedule with Foster Father played a large role in that change.
David was the only child living in Foster Father’s home.
34
3. Emotional and Physical Danger Now and In the Future
The Department did not believe that David’s placement with Mother was
appropriate given the circumstances under which he was removed from Mother’s
home, Mother’s ongoing drug use, and the continuing nature of her relationship with
Father, who had been violent towards her in the past. Although the Department did
not express any concerns that Dierdre would use drugs or be violent around David,
and indeed a Department supervisor had approved a home study for Dierdre,
Guerrero and Longoria were concerned that David would still see Mother if he were
placed with Dierdre. Guerrero testified that Dierdre had told her that “she is willing
to allow [David] to be around his mother.” Longoria testified that she believed David
“would continue to have exposure to his mother for sure” because Dierdre “believes
that that’s [David’s] mother, and she believes that relationship is important,” and
Dierdre “feels that [David] should be able to have more exposure to his mother.”
Longoria was also concerned that David might encounter Father if placed with
Dierdre because Dierdre once took Logan to see Father “after he was born and placed
in her home.”
All witnesses testified concerning the potential emotional effect on David if
he were removed from Foster Father’s house and placed with Dierdre. Mother
wanted David to be placed with Dierdre, stating that she believed it was important
that David be in a house with Logan and that it would be in the best interest of both
35
boys for them to live together. She noted that Dierdre, as her aunt, was also
biologically related to both David and Logan. Mother agreed with her counsel that
it would be “emotionally traumatizing” for David to be separated from Logan.
Mother did not believe that David was bonded to Foster Father. When asked if it
would surprise her to learn that David had expressed his desire to stay with Foster
Father, Mother stated that David “tells [her] something totally different.” She did
not believe that David would be negatively impacted if removed from Foster
Father’s care, and she did not believe Foster Father was meeting all David’s needs.
Dierdre requested that David be placed in her home with Logan. When asked
whether she would allow Mother to have custody of the boys, Dierdre agreed that it
was not appropriate for Mother to have custody and she stated that she would “be
protective” of the boys. Dierdre believed that it was in David’s best interest to be
placed with Logan, and she further believed that it would be traumatic for them to
be separated. She did not believe that it would be traumatic to remove David from
Foster Father.
Guerrero acknowledged that a Department supervisor had approved a home
study for Dierdre and that Dierdre had custody of Logan with no issues. When asked
why the Department was unwilling to place David with Dierdre, Guerrero testified
that David had PTSD and his needs were very different from Logan’s. He had
36
“experienced immense trauma,” he was “very well established” with Foster Father,8
and moving him from Foster Father would be traumatic. Guerrero also testified that
Dierdre had at one point told her that she did not want David to be placed with her
because she knew Foster Father was meeting David’s needs. Dierdre told Guerrero
that “she knew [David] was very bonded to his foster parent because she’s heard
[David] express sentiments about his foster dad in the visits.” Guerrero stated that
she considered the potential emotional effect of being separated from Logan, but she
still believed it was in David’s best interest to remain with Foster Father.
Longoria also believed that it was in David’s best interest to remain in his
current placement with Foster Father. She testified that David was “extremely
traumatized” when he was first removed from Mother’s care, and he had made
substantial progress with Foster Father. She stated, “It would not be in his best
interest to uproot him and have him start all over again because he made so much
progress.” Shortly after meeting Foster Father, Dierdre expressed to Longoria that
8
Mother points out that David had been placed with Foster Father since November
2020, and the Department did not conduct a home study for Dierdre until July 2021.
By the October 2021 trial setting, the Department was still reviewing that home
study. By the next trial setting in April 2022, Guerrero testified that the Department
did not wish to place David with Dierdre, in part because he was so well bonded
with Foster Father. We note that it appears from Mother’s testimony that Dierdre
was not a potential placement option for David until after Logan’s birth in June
2021, when Mother got in touch with her father’s side of the family and Dierdre
took custody of Logan. We, however, express concern with the significant delay of
months between days of testimony in this trial, which took over a year to conclude.
37
she was comfortable with David remaining with Foster Father and she believed that
continuing that placement was in David’s best interest.
Foster Father testified that David is bonded to him. He believed it would be
“extremely” detrimental to David if he were removed, noting that David considers
Foster Father to be his “dad” and Foster Father’s parents to be his grandparents.
David has also formed relationships with his classmates, as well as with Foster
Father’s siblings and neighbors. Removing David from Foster Father would remove
David from the lives of “a lot of other people.” Foster Father has seven siblings and
“believe[s] in keeping a very tight-knit family group,” and he intended to help
facilitate David’s relationship with Logan throughout their childhoods. He testified
that he has had “great communications” with Dierdre, and he had “no intention of
keeping the boys apart.”
4. Plans for David by Individuals Seeking Custody9
Both Foster Father and Dierdre testified that they were interested in seeking
custody of David. Foster Father intended to adopt David if the trial court terminated
9
The Texas Supreme Court has held that evidence concerning placement plans and
adoption is relevant to best interest but is not a dispositive factor. In re C.H., 89
S.W.3d 17, 28 (Tex. 2002). The inquiry is whether, based 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.” Id.; In re S.M.M., No.
01-22-00482-CV, 2022 WL 17981669, at *12 (Tex. App.—Houston [1st Dist.] Dec.
29, 2022, pet. denied) (mem. op.) (holding sufficient evidence existed that
termination was in child’s best interest when both foster family and biological aunt
were interested in adopting child). Similarly, this Court has held that the
38
Mother’s and Father’s parental rights. He stated that his plans for David were “[t]o
see him grow and become the best person he can be.” Foster Father intended “to
support him all the way through that.”
The trial court heard conflicting evidence concerning Dierdre’s desires in
having David placed with her. At the September 2022 trial setting, she requested that
the trial court place David with her. She denied that she ever stated to anyone that
she did not want David placed in her home or that she stated that she did not want to
remove David from his placement with Foster Father. She agreed that she wanted
David and Logan “to be together for the rest of their life.”
Guerrero and Longoria testified that while Dierdre might be stating at trial
that she wanted David placed with her, she had previously stated otherwise to both
of them. Guerrero testified that in early 2022, Dierdre told her that she did not wish
for David to be placed with her. Guerrero testified:
She stated that she knows the current foster parent is able to meet
[David’s] needs. She also stated that she knew [David] was very bonded
to his foster parent because she’s heard [David] express sentiments
about his foster dad in the visits. She also stated that she just wanted
[David] to be able to know his family and she would be comfortable
with visits with [David]. She also stated even if she were to get custody
of [David], she wouldn’t remove him from the foster parent.
determination of where the child will be placed is a factor in evaluating best interest,
but it is not a bar to termination that placement plans are not final or that placement
will be with non-relatives. Rogers v. Dep’t of Fam. & Protective Servs., 175 S.W.3d
370, 379 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.); see In re L.M.,
572 S.W.3d 823, 837 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
39
Guerrero agreed that Dierdre had “gone back and forth multiple times” about
whether she wanted David to be placed with her. Guerrero further agreed that it was
in David’s best interest “to remain in a home where they are for sure wanting to keep
him 100 percent.”
Longoria also testified that while Dierdre was currently requesting placement
of David, that had not always been her position. After Dierdre and Foster Father met,
Dierdre told Longoria that she had wanted to meet Foster Father for herself. Dierdre
believed that David was old enough to express his feelings, and she knew that David
considered Foster Father his father. Dierdre “said she was cool with that relationship
with [David] remaining with the foster dad and she felt comfortable that they would
be able to continue a relationship.” Dierdre expressed to Longoria at that time that
she believed it was in David’s best interest to remain with Foster Father, she did not
want to break the bond they had developed, and she did not want to remove David
from Foster Father’s home. Longoria believed that Dierdre’s change of position was
because she did “not want her family to know her true intent.” Longoria testified, “I
believe she is comfortable with where [David] is and she’s good with that, but I
believe she does not want her family to know.” Longoria also testified that Dierdre
“made a comment to [her] that [Dierdre] was not going to raise [Mother’s] children.”
Longoria agreed that Dierdre had “gone back and forth” on whether she wanted
40
David placed with her and that “whether or not she would continue to care” for David
was a concern.
5. Acts or Omissions by the Parent
As we have discussed when analyzing whether sufficient evidence supports
the predicate findings, the trial court had undisputed evidence before it that David
ingested PCP while in Mother’s care. He was hospitalized and went into cardiac
arrest while at the hospital. David had physically recovered by the time trial
concluded, but he experienced intense trauma due to this incident. It is also
undisputed that despite a brief period of sobriety around the time Logan was born in
June 2021, Mother continued testing positive for drugs throughout the pendency of
the case. Mother also had an “on and off” relationship with Father, who had been
violent towards her in the past and who faced a criminal charge for allegedly
assaulting Mother. Mother agrees that, at this point, she is not an appropriate
caregiver for David, and she is not seeking managing conservatorship of him.
The trial court heard conflicting evidence concerning the best placement for
David. Mother and Dierdre both requested that David be placed with Dierdre,
emphasizing the familial relationship between David and Dierdre, who also had
custody of David’s younger brother, Logan. Mother and Dierdre both believed it
would be traumatic for David and Logan to be separated, it was in their best interest
to live together, and it would not be detrimental to remove David from Foster Father.
41
Mother also argues that no evidence in the record indicates that Dierdre could not
care for David, noting that no issues had arisen in Dierdre’s care of Logan.
The Department, on the other hand, believed it was in David’s best interest
for him to remain with Foster Father, who wished to adopt him. Although the
Department had no concerns with Dierdre having custody of Logan, a child who had
never had any special needs, David’s circumstances were different. David had been
in Foster Father’s house since November 2020, and Foster Father had been diligent
in attending to David’s physical, emotional, psychological, and educational needs.
Due in large part to Foster Father’s insistence on a consistent schedule, David had
made “tremendous” progress behaviorally, emotionally, and academically.
David was the only child in Foster Father’s house, and he had bonded with
Foster Father and Foster Father’s family. David repeatedly expressed his desire to
stay with Foster Father. Department witnesses believed it would be traumatic to
remove David from Foster Father and that removal would reverse the progress he
had made over the past few years. Although Dierdre expressed at trial that she
wanted David to be placed with her, she had been inconsistent in this regard. She
had previously stated to Department witnesses that she believed Foster Father was
meeting David’s needs. Foster Father believed that David should have a relationship
with Logan, and he expressed his intention the facilitate the bond between the
brothers.
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We conclude that the evidence weighing against the finding that terminating
Mother’s parental rights was in David’s best interest is not so significant that the
trial court could not have reasonably formed a firm belief or conviction about the
truth of the finding. See TEX. FAM. CODE § 161.001(b)(2). We hold that factually
sufficient evidence supports the trial court’s finding that termination of Mother’s
parental rights was in David’s best interest.
We overrule Mother’s fifth issue.
Appointment of Mother as Possessory Conservator
In her sixth issue, Mother argues that the trial court abused its discretion by
failing to appoint her as David’s possessory conservator.
Conservatorship decisions are subject to review for abuse of discretion, and
we may reverse such determinations only if the decision is arbitrary and
unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re J.D.G., 570
S.W.3d at 856.
The Family Code includes statutory presumptions concerning appointment of
a parent as a managing or possessory conservator. For example, section 153.131(a)
contains a presumption that, subject to certain prohibitions, a parent shall be
appointed sole managing conservator of the child unless the court finds that
appointment of the parent as managing conservator would not be in the child’s best
interest because the appointment would significantly impair the child’s physical
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health or emotional development. TEX. FAM. CODE § 153.131(a). A parent that is not
appointed as sole managing conservator shall be appointed as possessory
conservator unless the court finds that the appointment is not in the best interest of
the child and parental possession or access would endanger the physical or emotional
welfare of the child. Id. § 153.191.
An order terminating the parent-child relationship divests a parent of all legal
rights and duties with respect to the child. Id. § 161.206(b); In re J.D.G., 570 S.W.3d
at 856. Because we have overruled Mother’s challenges to the order terminating her
parental rights to David, and thus Mother’s legal rights and duties with respect to
David have been divested, we cannot conclude that the trial court abused its
discretion by not appointing Mother as David’s possessory conservator. See In re
D.J.G., No. 01-22-00870-CV, 2023 WL 3513143, at *28 (Tex. App.—Houston [1st
Dist.] May 18, 2023, no pet. h.) (mem. op.); see also In re J.D.G., 570 S.W.3d at
856 (concluding that because court had upheld termination of mother’s parental
rights, mother lacked standing to challenge portion of termination order naming
DFPS as managing conservator); In re K.P.M., No. 01-17-00327-CV, 2017 WL
5353244, at *9 (Tex. App.—Houston [1st Dist.] Nov. 10, 2017, pet. denied) (mem.
op.) (concluding that because sufficient evidence supported termination of mother’s
parental rights, she was disqualified as conservator for her children).
We overrule Mother’s sixth issue.
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Conclusion
We affirm the trial court’s judgment terminating Mother’s parental rights to
David.
April L. Farris
Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.
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