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

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-23-00010-CV
IN THE INTEREST OF M.M., A CHILD
On Appeal from the County Court at Law
Rusk County, Texas
Trial Court No. 2021-06-210
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
M.M. was removed from the care of Mother by the Department of Family and Protective
Services after both of them tested positive for amphetamine, benzodiazepine, and syphilis after
M.M.’s birth. M.M. was placed with Terry and Bill (collectively Intervenors), who had
previously adopted Mother’s son, Matt.1 During the pendency of the case, Intervenors
intervened in the case and sought termination of Mother’s parental rights and to be named
permanent managing conservators of M.M. About one and one-half years after M.M. was
removed, a Rusk County jury found by clear and convincing evidence that Mother’s parental
rights should be terminated and that the termination of her parental rights was in the best interest
of M.M. Pursuant to the verdict, the trial court entered an order that terminated Mother’s
parental rights to M.M. on statutory grounds D, E, and O,2 named Intervenors permanent
managing conservators of M.M., and removed the Department as managing conservator of
M.M.3,4
In this appeal, Mother asserts that (1) there was legally and factually insufficient evidence
to support the jury’s findings under grounds D, E, and O, and (2) there was legally and factually
insufficient evidence to support the jury’s finding that termination of her parental rights was in
1
All minor children, their parents, and their adoptive parents will be referred to either by their initials or by fictitious
names. TEX. R. APP. P. 9.8.
2
See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O).
3
The alleged father’s parental rights to M.M. were terminated by separate order. The alleged father did not appeal
the trial court’s judgment.
4
At trial, the Department did not seek termination of Mother’s parental rights but sought to be named sole managing
conservator of M.M. if Mother’s parental rights were not terminated. The Department does not appeal the trial
court’s judgment.
2
the best interest of M.M. Because we find that legally and factually sufficient evidence
supported the jury’s findings under ground E and that termination of Mother’s parental rights
was in the best interest of M.M., we affirm the trial court’s judgment.
I. Standard of Review
“The natural right existing between parents and their children is of constitutional
dimensions.” In re E.J.Z., 547 S.W.3d 339, 343 (Tex. App.—Texarkana 2018, no pet.) (quoting
Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). “Indeed, parents have a fundamental right to
make decisions concerning ‘the care, custody, and control of their children.’” Id. (quoting Troxel
v. Granville, 530 U.S. 57, 65 (2000)). “Because the termination of parental rights implicates
fundamental interests, a higher standard of proof—clear and convincing evidence—is required at
trial.” Id. (quoting In re A.B., 437 S.W.3d 498, 502 (Tex. 2014)). “This Court is therefore
required to ‘engage in an exacting review of the entire record to determine if the evidence is . . .
sufficient to support the termination of parental rights.’” Id. (quoting In re A.B., 437 S.W.3d at
500). “[I]nvoluntary termination statutes are strictly construed in favor of the parent.” Id.
(alteration in original) (quoting In re S.K.A., 236 S.W.3d 875, 900 (Tex. App.—Texarkana 2007,
pet. denied)).
“In order to terminate parental rights, the trial court must find, by clear and convincing
evidence, that the parent has engaged in at least one statutory ground for termination and that
termination is in the child’s best interest.” Id. (citing TEX. FAM. CODE ANN. § 161.001; In re
E.N.C., 384 S.W.3d 796, 798 (Tex. 2012)). “‘Clear and convincing evidence’ is that ‘degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of
3
the allegations sought to be established.’” Id. (quoting TEX. FAM. CODE ANN. § 101.007 (citing
In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009)). “This standard of proof necessarily affects our
review of the evidence.” Id.“In our legal sufficiency review, we consider all the evidence in the light most favorable
to the findings to determine whether the fact-finder reasonably could have formed a firm belief
or conviction that the grounds for termination were proven.” In re L.E.S., 471 S.W.3d 915, 920
(Tex. App.—Texarkana 2015, no pet.) (citing In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005)
(per curiam); In re J.L.B., 349 S.W.3d 836, 846 (Tex. App.—Texarkana 2011, no pet.)). “We
assume the . . . fact-finder[] resolved disputed facts in favor of the finding, if a reasonable fact-
finder could do so, and disregarded evidence that the fact-finder could have reasonably
disbelieved or the credibility of which reasonably could be doubted.” Id. (citing In re J.P.B., 180
S.W.3d at 573).
“In our review of factual sufficiency, we give due consideration to evidence the [fact-
finder] could have reasonably found to be clear and convincing.” Id. (citing In re H.R.M., 209
S.W.3d 105, 109 (Tex. 2006) (per curiam)). Also, we “consider whether disputed evidence is
such that a reasonable fact[-]finder could not have resolved that disputed evidence in favor of its
finding.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). “If, in light of the entire record, the
disputed evidence that a reasonable fact[-]finder could not have credited in favor of the finding is
so significant that a fact[-]finder could not reasonably have formed a firm belief or conviction,
then the evidence is factually insufficient.” In re L.E.S., 471 S.W.3d at 920 (quoting In re J.F.C.,
96 S.W.3d at 266). “In applying this standard, ‘[a]n appellate court’s review must not be so
4
rigorous that the only fact[-]findings that could withstand review are those established beyond a
reasonable doubt.’” In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam) (quoting In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002)).
“‘[I]n making this determination,’ we undertake ‘“an exacting review of the entire record
with a healthy regard for the constitutional interests at stake.”’” In re L.E.S., 471 S.W.3d at 920(alteration in original) (quoting In re A.B., 437 S.W.3d at 503). We “must nevertheless still
provide due deference to the decisions of the fact[-]finder, who, having full opportunity to
observe witness testimony first-hand, is the sole arbiter when assessing the credibility and
demeanor of witnesses.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In re J.L., 163
S.W.3d 79, 86–87 (Tex. 2005)). “We also recognize that . . . the fact-finder[] . . . may believe
all, part, or none of a witness’ testimony.” In re A.M., No. 06-18-00012-CV, 2018 WL 3077784,
at *3 (Tex. App.—Texarkana June 22, 2018, pet. denied) (mem. op.) (citing In re H.R.M., 209
S.W.3d at 109).
“Despite the profound constitutional interests at stake in a proceeding to terminate
parental rights, ‘“the rights of natural parents are not absolute; protection of the child is
paramount.”’” In re L.E.S., 471 S.W.3d at 920 (quoting In re A.V., 113 S.W.3d 355, 361 (Tex.
2003)). “A child’s emotional and physical interests must not be sacrificed merely to preserve
parental rights.” Id. (quoting In re C.A.J., 459 S.W.3d 175, 179 (Tex. App.—Texarkana 2015,
no pet.)).
“Only one predicate finding under Section 161.001[b](1) is necessary to support a
judgment of termination when there is also a finding that termination is in the child’s best
5
interest.” Id. at 923 (quoting In re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet.
denied)).
Even so, in In re N.G., the Texas Supreme Court held that due process demands
that we review the evidence supporting findings under Grounds D and E when
they are challenged on appeal because termination of parental rights under these
Grounds “may have implications for . . . parental rights to other children.”
In re L.W., 609 S.W.3d 189, 195–96 (Tex. App.—Texarkana 2020, no pet.) (quoting In re N.G.,
577 S.W.3d 230, 234 (Tex. 2019) (per curiam)). “As a result, we focus our analysis on Grounds
D and E.” Id. at 196.
II. Sufficient Evidence Supported the Jury’s Ground E Finding
A. Statutory Ground E Requirements
Parental rights may be terminated under ground E “if the court finds by clear and
convincing evidence . . . that the parent has . . . engaged in conduct . . . which endangers the
physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
“‘[E]ndanger’ means to expose to loss or injury; to jeopardize.” Tex. Dep’t of Hum. Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re L.E.S., 471 S.W.3d at 923; In re N.S.G., 235
S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.). “It is not necessary that the conduct be
directed at the child or that the child actually suffer injury.” In re L.E.S., 471 S.W.3d at 923.
“Under subsection (E), it is sufficient that the child’s well-being is jeopardized or exposed to loss
or injury.” Id. (citing Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 367). “Further,
termination under subsection (E) must be based on more than a single act or omission. Instead, a
‘voluntary, deliberate, and conscious course of conduct by the parent is required.’” Id. (quoting
Perez v. Tex. Dep’t of Protective & Regul. Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso
6
2004, no pet.)); see Boyd, 727 S.W.2d at 533; In re N.S.G., 235 S.W.3d at 366–67. Nevertheless,
the parent’s conduct includes both the parent’s acts and its omissions or failures to act. In re
S.K., 198 S.W.3d 899, 902 (Tex. App.—Dallas 2006, pet. denied); In re N.S.G., 235 S.W.3d at
366–67.
“[E]ndangering conduct may include the parent’s actions before the child’s birth, while
the parent had custody of older children, including evidence of drug usage.” In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009) (citing Boyd, 727 S.W.2d at 533). “[C]onduct that subjects a child
to a life of uncertainty and instability endangers the physical and emotional well-being of a
child.” In re J.L.B., 349 S.W.3d 836, 848 (Tex. App.—Texarkana 2011, no pet.) (alteration in
original). “Drug use and its effect on a parent’s life and h[er] ability to parent may establish an
endangering course of conduct.” Id. (quoting In re N.S.G., 235 S.W.3d at 367–68); see In re
J.O.A., 283 S.W.3d at 345 n.4; In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.)
(“Evidence of illegal drug use or alcohol abuse by a parent is often cited as conduct which will
support an affirmative finding that the parent has engaged in a course of conduct which has the
effect of endangering the child.”). “Because it exposes the child to the possibility that the parent
may be impaired or imprisoned, illegal drug use may support termination under section
161.001(1)(E).” Walker v. Tex. Dep’t Fam. & Protective Servs., 312 S.W.3d 608, 617–18 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied) (citing Vasquez v. Tex. Dep’t Protective & Regul.
Servs., 190 S.W.3d 189, 195–96 (Tex. App.—Houston [1st Dist.] 2005, pet. denied)
(“terminating parental rights despite there being no direct evidence of parent’s continued drug
use actually injuring child”)). Also, “intentional criminal activity which expose[s] the parent to
7
incarceration is relevant evidence tending to establish a course of conduct endangering the
emotional and physical well-being of the child.’” In re L.E.S., 471 S.W.3d at 923 (quoting In re
A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no pet.) (per curiam)). Further, “[i]n our
analysis under ground E, we may also consider a parent’s failure to complete relevant
requirements of h[er] service plan.” In re S.A.W., No. 06-21-00116-CV, 2022 WL 1193667, at
*4 (Tex. App.—Texarkana Apr. 22, 2022, pet. denied) (mem. op.) (citing In re Z.J., No. 02-19-
00118-CV, 2019 WL 6205252, at *11 (Tex. App.—Fort Worth Nov. 21, 2019, pet. denied)
(mem. op.)).
B. The Evidence at Trial Relevant to Ground E
1. Mother’s Prior Terminations, Substance Abuse, Domestic Violence,
and Criminal History
The evidence showed that Mother did not have custody of her five other minor children
and that her parental rights to three of them had been terminated. Her oldest son, James, lived
with his father permanently since 2012. Also since 2012, the children’s paternal grandparents
had custody of her second son, Jerry, and her oldest daughter, Jasmine. Mother testified that her
parental rights to Jasmine were terminated in April 2012, while she was incarcerated, and that
Jasmine’s paternal grandparents adopted her. Mother’s second daughter, Gina, was removed by
the Department when she was eight months old.5 Eventually, Mother relinquished her parental
rights to Gina, and Gina was adopted. Her youngest son, Matt, was removed when he was six
months old and was placed with Intervenors. Her parental rights to Matt were also terminated.
5
At the time of trial, Gina was six years old.
8
M.M. was removed from Mother’s care while she was in the neonatal intensive care unit and
placed with Intervenors in June 2021, when she was about two weeks old.
Mother’s repeated involvement with the Department was intertwined with her long
criminal and substance abuse history. In 2009, the Department opened a case for neglectful
supervision of James and Jerry based on alcohol use and domestic violence. At the trial of this
case, Mother admitted that there had been domestic violence between her partner and her. At the
time, James was four years old and Jerry was two years old. She voluntarily placed Jerry with
his paternal aunt and James with his father so that she could work services offered by the
Department. She remembered that she participated in parenting classes and had treatment
because she tested positive for methamphetamine.
Mother admitted that she pled guilty to the assault of her partner in October 2009, for
which she was placed on community supervision. Less than one year later, Mother pled guilty to
her first driving while intoxicated (DWI) charge and received a sentence of forty-five days in
jail. In May 2012, Mother was charged with assault on a public servant and was sentenced to
three years in prison. Mother received her second DWI in November 2012 and was sentenced to
330 days, which ran concurrently with her three-year prison sentence. Mother was released from
prison on January 1, 2014. On November 1, 2017, Mother was arrested for her third DWI, a
third-degree felony. In May 2018, Mother pled guilty and was sentenced to ten years’
imprisonment. That sentence was suspended, and she was placed on ten years’ community
supervision.
9
Mother acknowledged that the conditions of her community supervision included
abstaining from the possession or use of alcoholic beverages and controlled substances and
submitting to drug tests when requested. She also acknowledged that she was required to take a
DWI repeat-offender class but admitted that she had not taken it. Mother also testified that she
was required to attend Walker House rehabilitation for six months. She explained that that was a
sober living community with ten women and that the program included classes and random drug
testing. In April 2019, Mother was charged with criminal mischief and sentenced to 110 days in
jail.
Also in 2019, the State filed a motion to revoke Mother’s community supervision because
she had tested positive for methamphetamine6 and because she had been charged with criminal
mischief and falsifying a police report. At the hearing on the motion, Mother’s conditions of
community supervision were amended to require her to attend an Intermediate Sanction Facility
(ISF) for six months. She explained that ISF was a prison-based boot camp that included
cognitive intervention classes for three months, to retrain thinking, and then substance abuse
classes for three months. Although Mother completed the cognitive track of ISF on April 16,
2020, the substance-abuse track was subsequently waived. She testified that she was in jail for a
total of one year after she was arrested on the motion to revoke. Mother admitted that she had
violated her community supervision again when she tested positive for alcohol during the
pendency of this case, but the State did not arrest her or file a new motion to revoke her
community supervision.
6
Mother maintained that she last used methamphetamine in May 2019.
10
The Department removed Gina from Mother’s care in 2016 because of domestic violence
between Mother and Gina’s father, Chuck, and because of methamphetamine use by them. At
the time, Mother was not married to Chuck.7 Mother and Chuck both admitted to domestic
violence and to the use of methamphetamine. Mother participated in parenting classes,
substance-abuse counseling, and thirty days inpatient substance-abuse treatment at Nexus
Recovery Center in Dallas during that case. Mother testified that she worked the services
required by the Department and that eventually she received four-hour, unsupervised visits with
Gina. Also during that case, Matt was born in May 2017. Then Mother was arrested for her
third DWI and went to jail. Eventually, Mother executed a voluntary relinquishment of her
parental rights, and the State terminated her parental rights to Gina. Mother asserted that she
voluntarily relinquished her rights to Gina because she did not think she could take care of Gina8
and Matt with a “psycho husband” who was in prison.
After her arrest, Matt was removed from Mother’s care.9 Mother was released from jail
after about a month and again began working the services required by the Department. She
again took parenting classes, had counseling, had outpatient substance-abuse treatment with
Community Healthcore, and attended AA/NA meetings. Mother performed those services while
she was at Walker House as required by her community supervision. Eventually, Mother
received four-hour, unsupervised visits with Matt. During most of that time, Chuck was in
7
Mother testified that she married Chuck sometime during the pendency of Gina’s case, but she could not remember
the year.
8
Gina is disabled.
9
Chuck is also Matt’s biological father.
11
prison, but he was released about the end of September 2018. Shortly after that, Mother stopped
working her services and ended all contact with the Department. She claimed that Chuck would
not let her visit Matt, that he disabled her car, and that she stopped visiting Matt and going to
court to protect him. The State terminated her parental rights to Matt, and Intervenors adopted
him.
Mother testified that she had been a victim of assaults by Chuck during their relationship.
She was with him when he was not in prison from 2015 through 2018. She testified that Chuck
was not around when she was given unsupervised visits, when M.M. was born, or when she
relinquished her parental rights to Gina. Mother testified that she was excited when she heard
that Chuck was released from prison in September 2018. However, she also testified that the
news “did something to [her] mentally” because she knew he would not stop terrorizing her. She
testified that Chuck continued to abuse her for eight or nine months after Matt’s case, until he
was arrested. Chuck was incarcerated from May 2019 until June 2022. In May 2020, Mother
sent money to Chuck while he was imprisoned. Apparently, a few months later, Mother got
pregnant with M.M. during a short affair with Chuck’s friend, Michael. Mother divorced Chuck
about a month before the final hearing in this case and obtained a protective order against him.
2. Prenatal Care, M.M.’s Birth, and the Hospital Stay
While pregnant with M.M., Mother had six prenatal examinations, with the first on
December 18, a few in January, nothing between January 29 and April 16, and her last one on
May 14, when she was diagnosed with syphilis. Dr. Tiffany Taylor, who treated M.M. at the
hospital, opined that that would be considered inadequate prenatal care.
12
Shortly after the birth of M.M. on May 20, 2021, both Mother and M.M. tested positive
for amphetamine, benzodiazepine, and syphilis. M.M. also tested positive for opiates. As a
result, and because of Mother’s history with the Department, M.M. was removed from Mother’s
care. While at the hospital, Mother told the Department’s investigator that she took Xanax and
Ritalin.10 Dr. Taylor testified that amphetamine is contained in ADHD medications, such as
Ritalin, and that benzodiazepines, such as Xanax, are commonly used to treat mothers who have
anxiety or depression. Dr. Taylor also testified that, when she reviewed the State of Texas’s
prescription drug monitoring program, it showed that Mother had been prescribed Ritalin and
Xanax by Dr. Mercer. She opined that there was not enough evidence to say whether
amphetamine is safe during pregnancy but explained that, if a mother needs it to treat anxiety, it
will be continued during pregnancy for the safety of the mother and baby.
Dr. Taylor explained that M.M. was admitted to the neonatal intensive care unit because
she had trouble with her breathing because of meconium aspiration11 and needed to be intubated.
Before M.M. was intubated, she was given morphine to decrease the pain and discomfort of the
intubation. Dr. Taylor opined that the opiates found in M.M. could have been from that
treatment. However, Dr. Taylor testified that the amphetamine and benzodiazepine found in
M.M. came from Mother. When M.M. was five days old, the hospital began treatment for
neonatal abstinence syndrome because she was withdrawing from the drugs that came from
Mother. Dr. Taylor explained that, since amphetamine is out of a newborn’s system in about
10
At trial, Mother testified that she had been diagnosed with bipolar disorder, social anxiety disorder, and ADHD
and that, at the time of trial, she took medications for ADHD and bipolar disorder.
11
Dr. Taylor explained that meconium aspiration can happen in any birth if the baby is stressed before birth.
13
forty-eight hours and M.M. did not show symptoms of withdrawal until she was five days old,
the cause was the benzodiazepine. M.M. was treated with phenobarbital for the remainder of her
stay at the hospital and for six to eight weeks after she was released into the care of Intervenors.
Dr. Taylor was not aware of any long-term effects of the phenobarbital treatment. M.M. was
also treated with penicillin for ten days, which cured the syphilis infection.
3. Mother’s Conduct During this Case
a. Addressing Parenting Skills
At the June 28, 2021, adversary hearing, the trial court appointed the Department
temporary managing conservator of M.M. and ordered Mother to comply with each requirement
of the Department’s original or any amended family plan. Under the family plan, because of
Mother’s history with the Department and not raising her other children, Mother was required to
complete a parenting class and to participate in individual counseling to further address
parenting. Mother completed a parenting class at New Life Church. She described the class as
teaching very basic skills that she already knew, such as how to change a diaper. Although she
claimed that she also learned some new things, she could not describe what those were. Mother
had six or eight individual counseling sessions with Stenet Frost that focused on her coping skills
in anticipation of being reunited with M.M.
b. Addressing Substance Abuse
Also under the family plan, because of her history with illegal drugs, Mother was
required to complete a substance-abuse assessment with Jessica Mitchell, LCDC,12 be open and
12
Licensed chemical dependency counselor.
14
honest in her assessment, and follow all recommendations made by Mitchell. The family plan
also required Mother to abstain from the use of alcohol and to follow all rules and regulations of
all of her community supervision. Mother was also required to “be honest, at all times, with the
Court, the caseworker and all service providers.”
Mother’s initial assessment was on September 13, 2021. Based on Mother’s answers to
questions in the assessment, she did not meet the criteria for substance-use problems within a
twelve-month period. However, Mitchell noted that, even though Mother did not meet the
criteria for substance use for the twelve months preceding the assessment, “[a]lcohol abuse may
be considered” and that it was “possible [Mother had] not [been] completely honest during the
assessment to avoid meeting criteria for services.” Mitchell recommended that Mother have
random drug and alcohol tests, as well as regular testing to ensure her sobriety. She further
recommended that Mother “participate in substance abuse counseling” if she had a positive drug
or alcohol test and have “intensive outpatient if [there was] more than one . . . positive test.” She
explained that intensive outpatient counseling would include both individual counseling and
group therapy. Also, Mitchell recommended that Mother participate in AA/NA or sober
recovery, “obtain a sponsor and work the 12 steps of recovery,” and “participate in parenting
classes to better understand how addiction can be traumatic for kids living with substance users.”
The Department started monthly random alcohol testing on Mother in November 2021.
When the Department tested Mother for alcohol, apparently for the first time, on November 30,
2021, the test was positive. When her caseworker, Haley Weaver, confronted her with the
results on December 8, Mother told her that she had gone out with her sister, Randi, to celebrate
15
her birthday and had a drink. At trial, Mother testified that she had a big margarita with an extra
shot of tequila. She also testified that she drank it even though she knew she could lose her
freedom13 and her rights14 to M.M. Mother also admitted that she was not going to tell the
Department she had consumed alcohol if the test came back negative.
Even though Mitchell recommended that Mother participate in substance-abuse
counseling after she tested positive for alcohol or drugs,15 it is undisputed that the only
counseling Mother participated in after her first positive alcohol test was with Frost. She
counseled with Frost from January until July 2022. However, Frost testified that she is not a
substance-abuse counselor.16 Apparently, the Department required Mother to attend AA/NA, as
recommended by Mitchell, and to turn in sign-in sheets to verify her attendance. However,
several of those sheets were signed by Mother’s sister, who accompanied Mother to the AA
meetings for support. Mitchell testified that that was concerning because the chair member of
the meeting usually signed the sheets and because Mother drank alcohol when she was out with
that sister. In addition, although Mother claimed to have a sponsor, there was no evidence that
she worked the twelve steps of recovery.
13
Mother testified that a condition of her community supervision was to abstain from the use of alcoholic beverages
and that, if she violated that condition, her community supervision could be revoked.
14
Mother testified that she knew from the beginning of the case that drinking alcohol was a violation of both her
family plan and her community supervision.
15
Except for the drug tests taken in the hospital after giving birth to M.M., Mother did not have any positive tests for
substances, other than alcohol, that were not associated with her prescription medications.
16
Frost testified that Mother had coping skills before she came to her and characterized their sessions as trying to
enhance those skills and get a positive result.
16
In mid-May 2022, Mother was given four hours of unsupervised visitation with M.M.
each week. Around June 28, 2022, Mother again drank alcohol. Mother testified that she had a
panic attack and was stressed over an upcoming court hearing, “pulled into Daiquiri Express and
got a big ol’ drink[,] and went home and drank it.”17 She testified that she did not think about the
consequences. On June 29, Mother again tested positive for alcohol. Before the results of the
test were known,18 Mother had an unsupervised visit with M.M. on June 30 and a court hearing
in this case on July 1. At the hearing, several witnesses testified that Mother had been clean and
sober since November 30, 2021, yet Mother never volunteered that the testimony was not true.
Rather, Mother did not disclose that she had consumed alcohol again until after Weaver received
the results. Weaver agreed that Mother’s consumption of alcohol was significant in this case
because of her history with alcohol and because she could go to prison for violating her
community supervision. Mother testified that she did not tell anyone that she drank alcohol
because she hoped not to get caught. She maintained that the only time she drank alcohol during
the case was the two times she got caught.
Because of her positive test, Mother was sent for another substance-abuse assessment
with Kevin Jordan at East Texas Council on Alcoholism and Drug Abuse (ETCADA) on July 21.
According to Jordan’s assessment, Mother told him that “she [drank] alcohol,” but not on a daily
basis, and that she was sober but “had a moment of weakness and had one daiquiri . . . in 2022.”
She also told him that “[t]he last 12 months, she tried to cut down alcohol and drug use and
17
Mother testified that she did not drink the daiquiri on the way home because she had an Intoxalock machine on her
car, and she did not “want a 50-year sentence for another DWI.”
18
Weaver was not aware of the results until around July 18.
17
wasn’t able to do it. And continued the drinking to avoid withdrawals or from getting sick from
the alcohol or drugs.” Jordan was concerned that Mother was minimizing the severity of her
substance disorder because of the Department’s report and her two prior assessments with
ETCADA.19 He felt that she had an ongoing pattern with alcohol and drug abuse and that she
minimized her use of alcohol and drugs and the effects they had on her life and her family’s
lives. Jordan referred Mother to the Hughes Center for outpatient treatment.
Brent Tanksley, an LCDC counselor with Hughes Center, testified that he had sixteen
weekly counseling sessions with Mother. He did not meet Mother in person, and his sessions,
which lasted from a few minutes to over an hour, had all been telephonic, except one Zoom
session. Tanksley based his assessment of Mother’s credibility and truthfulness solely on the
tone of her voice, her inflection, and her wording.
In his opinion, Mother made progress during their counseling because she had a
structured life and goals and because of the way she interacted with people. He also agreed that
Mother had improved from her previous cases with the Department because this case did not
involve methamphetamine and she only tested positive for alcohol two times.
While he thought Mother drinking alcohol while on community supervision for DWI was
concerning, he did not view her two episodes of drinking several months apart as a pattern. He
did not think Mother minimized the severity of her disorder with him. He also believed Mother
was very genuine.
19
Mother had substance-abuse assessments by ETCADA during the Department’s cases involving Gina and Matt.
18
Nevertheless, Tanksley acknowledged that ninety-five to ninety-nine percent of people
with addictions fall back into it. He opined that, when an addiction disorder is active, even when
the person is on community supervision, the ability of the brain to weigh out consequences is
impossible. He agreed that, if Mother testified that when she chose to drink in June, she “didn’t
even think past the very moment,” it could mean that she had an active disorder. He also agreed
that he could not predict whether Mother would go back to her old patterns.
Mother credited her time at ISF as the turning point in her life and credited it with
changing her relationship with her children. She explained that, because of ISF, she was able to
hold herself accountable after she drank alcohol in November and not continue drinking. Mother
testified that, before ISF, she drank alcohol weekly and that, after ISF, she drank every six
months. She asserted that she would not drink again because she would apply her coping skills,
such as deep breathing and positive self-talk. Although she admitted that she had those coping
skills in November and June when she chose to drink, she asserted that the next time she was
tempted to drink, she would remember that she did not want to disappoint her children and
would keep calling people until she reached one.
c. Addressing Domestic Violence
Because of Mother’s history of toxic relationships and domestic violence, the family plan
required Mother to “participate in a domestic violence class and be able to explain and
demonstrate what she ha[d] learned about relationships and what constitute[d] a healthy
relationship.” It is undisputed that Mother completed a domestic violence class at East Texas
Women’s Center. There was no direct testimony from Mother regarding what she learned from
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that class or what constituted a healthy relationship. Mother testified that she had an advocate at
the Center that would help her if she needed assistance with housing, rent, or utilities and that the
Center had resources for domestic violence victims. She also testified that, since ISF, she did not
have anything to do with people from her abusive past and that she had replaced toxic people
with non-toxic people.
Mother also testified that she would be able to take care of M.M. because Chuck was no
longer in her life. She did not have the fear of him getting out of jail, controlling her, stealing
from her, and abusing her. She said that she would not allow that kind of abuse in her life and
that she had set boundaries.
C. Analysis
In contending that the evidence is factually and legally insufficient to support the jury’s
finding under ground E, Mother discounts her prior history with substance abuse, domestic
violence, three DWI convictions, and the termination of her parental rights to three of her other
children with a cursory assertion that “the history in other [Department] cases is not
determinative of a finding under [ground E].” While not necessarily determinative,
“endangering conduct may include the parent’s actions before the child’s birth, while the parent
had custody of older children.” In re J.O.A., 283 S.W.3d at 345. For that reason, the history
may support a finding under ground E. Further, the jury could consider the history when
considering the importance of Mother’s actions in this case.
For instance, in her brief, Mother attempts to minimize the two instances when she chose
to drink alcohol. To be sure, as Mother points out, Tanksley and some of her other providers
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were not concerned about those instances of alcohol use. However, another provider opined that
her decision to drink was a serious relapse in thinking because it could spiral out of control, and,
in Mother’s case, it might mean her community supervision would be revoked and her parental
rights terminated. Also, although Tara Beck, a Court Appointed Special Advocate supervisor,
did not think her drinking justified the termination of Mother’s rights, she acknowledged that,
because Mother could go to prison because of it, Mother exhibited very bad judgment.
A reasonable jury could resolve that testimony in favor of its ground E finding and
consider that the following evidence established an endangering course of conduct by Mother:
(1) her history of substance abuse, (2) her three DWI convictions, (3) the fact that she received
her last DWI during Gina’s case with the Department, which led to the termination of her
parental rights to Gina and Matt’s removal by the Department, (4) Mother’s testimony that she
drank either because it was her birthday or because she was stressed, and (5) her willingness to
have a drink even though she knew that it could result in her going to prison and having her
parental rights to M.M. terminated.
In addition, the evidence showed that Mother failed to complete the relevant
requirements of her family plan. Although Mother’s abuse of alcohol and other substances was a
major concern, both Mitchell and Jordan expressed concerns that Mother was not honest with
them in her substance-abuse assessment. Mother was also not honest with her caseworker, her
providers, or the trial court when she used alcohol, but hid her use until she was confronted by
her caseworker. Although Mother was required to follow the recommendations in the
assessments, she did not participate in substance-abuse counseling after her positive test in
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November, she failed to take a parenting class to learn how substance abuse could be traumatic
to her children, and she provided no evidence that she had worked a twelve-step recovery, as
recommended by Mitchell. This evidence would also support the jury’s finding under ground E.
While Mother worked most of her services, she did the same in both Gina’s and Matt’s
cases. In both of those cases, Mother had substance-abuse assessments, participated in
counseling and treatment, and worked herself up to four-hour visitations. Yet, in Gina’s case,
Mother received her third DWI, and in Matt’s case, she returned to an abusive relationship. The
jury could have been convinced that Mother’s working some services, while failing to work
other services designed to address those issues, as well as her poor judgment in using alcohol,
were part of the same pattern exhibited in Gina’s and Matt’s cases.
Based on this record, we find that legally and factually sufficient evidence supported the
jury’s finding under statutory ground E. We overrule this issue. Because we find that sufficient
evidence supported the jury’s finding under statutory ground E, we need not address the
challenges to its findings under grounds D and O. In re M.H., No. 06-22-00072-CV, 2023 WL
2711127, at *6 (Tex. App.—Texarkana Mar. 30, 2023, pet. denied) (mem. op.) (citing J.T. v.
Tex. Dep’t of Fam. & Protective Servs., No. 03-21-00070-CV, 2021 WL 2672055, at *9 (Tex.
App.—Austin June 30, 2021, no pet.) (mem. op.)
III. Sufficient Evidence Supported the Jury’s Best-Interest Finding
A. Best-Interest Requirements
Mother also challenges the factual and legal sufficiency of the evidence supporting the
jury’s best-interest finding. “There is a strong presumption that keeping a child with a parent is
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in the child’s best interest.” In re R.W., 627 S.W.3d 501, 516 (Tex. App.—Texarkana 2021, no
pet.) (quoting In re J.A.S., Jr., No. 13-12-00612-CV, 2013 WL 782692, at *7 (Tex. App.—
Corpus Christi Feb. 28, 2013, pet. denied) (mem. op.)). “Termination ‘“can never be justified
without the most solid and substantial reasons.”’” In re N.L.D., 412 S.W.3d 810, 822 (Tex.
App.—Texarkana 2013, no pet.) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)).
In determining the best interests of the child, courts consider the following Holley factors:
(1) the desires of the child, (2) the emotional and physical needs of the child 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) the
programs available to assist these individuals, (6) the plans for the child by these
individuals, (7) the stability of the home, (8) the acts or omissions of the parent
that may indicate the existing parent-child relationship is not a proper one, and
(9) any excuse for the acts or omissions of the parent.
Id. at 818–19 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)); see In re E.N.C.,
384 S.W.3d 796, 807 (Tex. 2012); see also TEX. FAM. CODE ANN. § 263.307(b). These factors
are not exhaustive, and there is no requirement that all of them be proven to terminate parental
rights. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Further, we may consider evidence used to
support the grounds for termination of parental rights in the best-interest analysis. See id. at 28.
B. Analysis
M.M. was seventeen months old at the time of trial and too young to express her desires.
The evidence showed that she had lived all her life with Intervenors, that she was bonded with
them and their adopted children, including one of M.M.’s adopted siblings, and that she was
happy in their home. Although M.M. spent far less time with Mother, the evidence also showed
that M.M. was bonded with Mother and Mother’s grandfather. This Holley factor is neutral.
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The evidence showed that Intervenors were addressing M.M.’s emotional, physical, and
medical needs. It was undisputed that Intervenors provided M.M. with food, shelter, a loving
family, and a safe home. The evidence also showed that Mother had adequate resources to
provide for M.M. and that she made improvements to her residence to make it safe for M.M.
Because M.M. had balance issues, Intervenors took her to a pediatric neurologist, who diagnosed
her with cerebral palsy. Terry testified that M.M.’s left leg seemed weaker, that her left foot
turned in, and that she fell a lot. In addition to regular visits with the neurologist, they took her
to a physical therapist weekly and to Brain Gym20 to address issues related to her diagnosis.
Mother never attended any of M.M.’s doctor visits, never asked to attend one, and did not know
the names of her doctors. She did not know what treatments were required for M.M.’s medical
conditions and testified that M.M. did not have any chronic illness. Although Mother had a copy
of M.M.’s medical records, she did not read all of them. She heard that there was a possibility of
cerebral palsy and that M.M. had therapy, but she did not see anything unusual when M.M. was
with her. During the case, Mother did not voluntarily provide any money to support M.M.,
although she bought her a pair of tennis shoes and some formula. Because Mother did not
appear to notice M.M.’s physical problems and appeared to take little interest in her medical
needs, the second Holley factor weighs in favor of termination.21
20
Terry described Brain Gym as retraining the brain by utilizing different exercises and play therapy.
21
In her brief, Mother points to some of Terry’s testimony to argue that Intervenors elevated their own needs above
M.M.’s emotional needs and did not consider M.M.’s best interest. However, an examination of the entirety of
Terry’s and Bill’s testimony showed that they had considered the different options that were presented to the jury,
consistently testified why they thought termination of Mother’s rights was in the best interest of M.M., and did not
elevate their own needs above M.M.’s.
24
Mother attended almost all of her visitations with M.M., and for the most part, her
interactions with M.M. were appropriate. Mother also had adequate resources to provide for
M.M. and maintained a safe residence for M.M. However, as has been noted, Mother
demonstrated that, even though she knew that drinking alcohol was a violation of her community
supervision that could result in her imprisonment and that it was a violation of her family plan
that could threaten her rights to M.M., she placed her desires above the needs of M.M. and drank
alcohol on at least two occasions. She also candidly admitted that, even though she was required
to be honest with the Department, her providers, and the trial court, she would not have disclosed
those instances of alcohol use had she not been caught by the random alcohol tests. Further, as
noted above, although her abuse of alcohol and other substances and domestic violence had
resulted in the termination of her parental rights to several of her other children, in her
incarceration, and in the removal of M.M., she failed to participate in all of the services that were
required to address those issues. Mother sought to reassure the jury that she would not drink
again because she would use her coping skills and her support network, yet also acknowledged
that she had both coping skills and a support network before the two instances and chose to drink
rather than use them. The only excuses she offered for those acts were that she wanted to
celebrate her birthday and that she had had a stressful day. We find that the fourth and seventh
Holley factors are neutral but that the third, eighth, and ninth Holley factors weigh in favor of
termination.
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After reviewing the entire record, we find that factually and legally sufficient evidence
supported the jury’s finding that termination of Mother’s parental rights was in the best interest
of M.M. We overrule this issue.
IV. Disposition
For the reasons stated, we affirm the trial court’s judgment terminating Mother’s parental
rights to M.M.
Charles van Cleef
Justice
Date Submitted: July 20, 2023
Date Decided: August 14, 2023
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