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In the Interest of C.M. and D.M., Children v. the State of Texas ( 2024 )


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  • Opinion filed June 27, 2024
    In The
    Eleventh Court of Appeals
    __________
    No. 11-24-00009-CV
    __________
    IN THE INTEREST OF C.M. AND D.M., CHILDREN
    On Appeal from the 42nd District Court
    Coleman County, Texas
    Trial Court Cause No. CV22-01099
    MEMORANDUM OPINION
    This is an accelerated appeal from an order in which the trial court terminated
    the parental rights of the mother and the presumed father of C.M. and D.M.1 Only
    the mother, Appellant, has appealed.                 On appeal, Appellant challenges the
    sufficiency of the evidence to support the trial court’s findings that (1) she committed
    the alleged acts as grounds for termination of her parental rights, and (2) termination
    of her parental rights is in the children’s best interest. She also challenges the trial
    1
    We use pseudonyms to protect the identities of children. TEX. R. APP. P. 9.8(b)(2).
    court’s decision to permit an undisclosed witness to testify at the final hearing. We
    affirm the trial court’s order of termination.
    I. Termination Findings and Standards
    The termination of parental rights must be supported by clear and convincing
    evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2023). To terminate
    one’s parental rights, it must be shown by clear and convincing evidence that the
    parent has committed one of the acts listed in Section 161.001(b)(1)(A)–(V), and
    that termination is in the best interest of the child. Id. at § 161.001(b)(2). Clear and
    convincing evidence is “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.” FAM. § 101.007 (West 2019).
    In this case, the trial court found that clear and convincing evidence
    established that Appellant committed at least one of the acts listed in
    Section 161.001(b)(1)—specifically, that Appellant: (1) knowingly placed or
    knowingly allowed the children to remain in conditions or surroundings which
    endangered the physical or emotional well-being of the children; (2) engaged in
    conduct or knowingly placed the children with persons who engaged in conduct
    which endangered the physical or emotional well-being of the children; and
    (3) failed to comply with the provisions of a court order that specifically established
    the actions necessary for Appellant to obtain the return of the children who had been
    in the permanent or temporary managing conservatorship of the Department
    of Family and Protective Services (the Department) for not less than nine
    months as a result of the children’s removal from Appellant under Chapter 262
    because of Appellant’s abuse or neglect of the children. See id. § 161.001(b)(1)(D),
    (E), (O). The trial court further found, pursuant to Section 161.001(b)(2), that
    2
    termination of Appellant’s parental rights was in the children’s best interest. See
    id. § 161.001(b)(2).
    In her first and second issues on appeal, Appellant challenges the trial court’s
    findings under subsections (D) and (E) and its best-interest finding as being
    unsupported by legally or factually sufficient evidence.
    In reviewing a legal sufficiency challenge, we must decide whether “a
    reasonable trier of fact could have formed a firm belief or conviction that its finding
    was true.” In re J.W., 
    645 S.W.3d 726
    , 741 (Tex. 2022). Cognizant of the required
    appellate deference to the factfinder, “we look at all the evidence in the light most
    favorable to the finding, assume that the factfinder resolved disputed facts in favor
    of its finding if a reasonable factfinder could do so, and disregard all evidence that a
    reasonable factfinder could have disbelieved or found to have been incredible.” 
    Id.
    (internal quotation marks omitted). “However, we may not disregard ‘undisputed
    facts that do not support the finding,’” and the factfinder is “the sole arbiter of the
    witnesses’ credibility and demeanor.” 
    Id.
     (quoting In re J.F.C., 
    96 S.W.3d 256
    , 266
    (Tex. 2002) (then quoting In re J.F.-G., 
    627 S.W.3d 304
    , 312 (Tex. 2021)). As such,
    when considering the credibility of the evidence presented, we may not substitute
    our judgment for that of the factfinder. J.F.-G., 627 S.W.3d at 316.
    In assessing whether the evidence is factually sufficient, we weigh the
    disputed evidence that is contrary to the finding against all the evidence that favors
    the finding. In re A.C., 
    560 S.W.3d 624
    , 631 (Tex. 2018). We give due deference
    to the finding and determine whether, on the entire record, a factfinder could
    reasonably form a firm belief or conviction about the truth of the allegations against
    the parent. In re J.O.A., 
    283 S.W.3d 336
    , 345 (Tex. 2009); In re C.H., 
    89 S.W.3d 17
    , 25–26 (Tex. 2002); In re L.C.C., 
    667 S.W.3d 510
    , 512 (Tex. App.—Eastland
    2023, pet. denied).
    3
    With respect to the best interest of a child, no unique set of factors need be
    proved. L.C.C., 667 S.W.3d at 513; In re C.J.O., 
    325 S.W.3d 261
    , 266 (Tex. App.—
    Eastland 2010, pet. denied). Further, the best interest determination does not restrict
    the proof to any specific factor or factors. In re D.M., 
    58 S.W.3d 801
    , 814 (Tex.
    App.—Fort Worth 2001, no pet.). However, courts may use the non-exhaustive
    Holley factors to shape their analysis. Holley v. Adams, 
    544 S.W.2d 367
    , 371–72
    (Tex. 1976). These include, but are not limited to: (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
    to promote the best interest of the child; (6) the plans for the child by these
    individuals or by the agency seeking custody; (7) the stability of the home or
    proposed placement; (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.
    To support a best interest finding, the Department is not required to prove
    each Holley factor; in some circumstances, evidence of the presence of only one
    factor will suffice. C.H., 89 S.W.3d at 27; In re D.M., 
    452 S.W.3d 462
    , 473 (Tex.
    App.—San Antonio 2014, no pet.). Additionally, the same evidence that proves one
    or more statutory grounds for termination may also constitute sufficient, probative
    evidence illustrating that termination is in the child’s best interest. C.H., 89 S.W.3d
    at 28; C.J.O., 325 S.W.3d at 266.
    The absence of evidence of some Holley considerations does not preclude the
    factfinder from reasonably inferring or forming a strong conviction or belief that
    termination is in the child’s best interest, particularly if the evidence indicates that
    the parent-child relationship and the parent’s conduct has endangered the safety and
    4
    well-being of the child. C.H., 89 S.W.3d at 27. This is so because the best interest
    analysis evaluates the best interest of the child, not the parent. In re E.C.R., 
    638 S.W.3d 755
    , 767 (Tex. App.—Amarillo 2021, pet. denied) (citing In re B.C.S., 
    479 S.W.3d 918
    , 927 (Tex. App.—El Paso 2015, no pet.)).
    In this regard, the factfinder may measure a parent’s future conduct by her
    past conduct and determine whether termination is in the child’s best interest. In re
    E.D., 
    419 S.W.3d 615
    , 620 (Tex. App.—San Antonio 2013, pet. denied); In re D.S.,
    
    333 S.W.3d 379
    , 384 (Tex. App.—Amarillo 2011, no pet.). The factfinder may infer
    that a parent’s past conduct that endangered the safety and well-being of the child
    may recur in the future if the child is returned to the possession of the parent. In re
    J.D., 
    436 S.W.3d 105
    , 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); May v.
    May, 
    829 S.W.2d 373
    , 377 (Tex. App.—Corpus Christi–Edinburg 1992, writ
    denied). Additionally, the factfinder may infer from a parent’s past inability to meet
    the child’s physical and emotional needs an inability or unwillingness by the parent
    to meet the child’s physical and emotional needs in the future. J.D., 
    436 S.W.3d at 118
    ; see also In re A.S., No. 11-16-00293-CV, 
    2017 WL 1275614
    , at *3 (Tex.
    App.—Eastland Mar. 31, 2017, no pet.) (mem. op.).
    II. The Evidence Presented at Trial
    In 2017, the Department removed Appellant’s one- and two-year-old children
    due to her methamphetamine use.           Leading up to that removal, Appellant
    (1) admitted to smoking methamphetamine and marihuana, (2) had been arrested for
    drug possession, and (3) left her children with friends for several days at a time.
    Appellant executed an affidavit of voluntary relinquishment, and her parental rights
    to her two children were terminated in 2018.
    C.M. and D.M. were born on March 25, 2020, and December 14, 2021,
    respectively. In June of 2022, the Department received information that Appellant
    5
    had resumed using methamphetamine. In the Department’s attempt to work with
    Appellant, C.M. and D.M. were temporarily placed with her sister. The children
    were ultimately removed after Appellant continued to test positive for
    methamphetamine.
    Approximately one month after the children’s removal, Appellant and her
    2INgage permanency case manager, Meagan Davis, created a Family Plan of
    Service. The trial court ordered Appellant to comply with each requirement set forth
    in the service plan during the pendency of the termination proceeding. As part of
    her service plan requirements, Appellant agreed to engage in counseling and a
    substance abuse assessment, provide proof of legal employment and stable housing,
    and refrain from drug use and associating with others who partake in criminal
    activity or illegal substance use. Appellant was also required to submit to random
    drug testing, permit 2INgage staff to conduct home visits, and attend scheduled
    visitations with her children.
    Between July and December of 2022, Appellant tested positive for
    methamphetamine on six of the seven drug tests that were administered. Appellant
    also tested positive for methamphetamine on several occasions in 2023, including
    during the months leading up to the final hearing in December of 2023.
    According to Appellant, she has struggled with drug use most of her life, is
    “an addict,” and relapsed a month before the final hearing. However, she claimed
    that she could remain sober if she left Coleman County: “I can either move away
    and be clean . . . or be stuck here in this same town where I’m just going to keep
    relapsing.” Appellant described her techniques for maintaining sobriety:
    “Usually if I keep myself locked inside my house . . . I’m perfectly fine
    as long as I don’t answer the door[,] [a]nd . . . as long as I’m not going
    out and, like, hanging out with people.”
    6
    She admitted: “I can say no a few times, but eventually I’m going to hit it if you
    keep giving it to me.”
    Appellant ceased communicating with Davis in April of 2023 and has not seen
    her children since that time. According to Appellant, she has a job cleaning houses,
    and she moved into a stable home a month prior to the final hearing. However,
    Appellant refused to allow 2INgage staff to inspect her home when they attempted
    a home visit.
    The       trial   court   terminated       Appellant’s   parental   rights   under
    Section 161.001(b)(1)(D), (E), and (O), and found termination to be in the best
    interest of the children. This appeal followed.
    III. Analysis
    A. Termination under Subsections (D) and (E) – Endangerment
    Appellant contends in her first issue that the evidence is legally and factually
    insufficient to prove grounds (D) and (E). Specifically, she argues that “[n]o actual
    harm occurred,” and “there was no evidence that the children were around her or
    subject to her drug use at the time of removal.”
    Although only one statutory ground is necessary to support termination,
    appellate courts must address a parent’s challenges to a trial court’s findings under
    subsections (D) or (E), as they may have implications for the parent’s rights to other
    children. See FAM. § 161.001(b)(1); In re N.G., 
    577 S.W.3d 230
    , 234–35 (Tex.
    2019) (addressing due process and due course of law considerations with respect to
    appellate review of grounds (D) and (E) and holding that an appellate court must
    provide a detailed analysis if affirming the termination on either ground). Thus, if
    we conclude that the evidence is legally and factually sufficient to uphold the trial
    court’s finding as to either subsection (D) or (E), we need not address whether the
    evidence supports termination under the remaining subsections, including the
    7
    arguments raised by Appellant concerning subsection (O).                   See FAM.
    § 161.001(b)(1); TEX. R. APP. P. 47.1. And when the evidence pertaining to both
    subsections (D) and (E) is interrelated, as it is here, we may conduct a consolidated
    review of the trial court’s endangerment findings. See In re A.L.S., 
    660 S.W.3d 257
    ,
    263–64 (Tex. App.—San Antonio 2022, pet. denied); In re J.D., 
    436 S.W.3d 105
    ,
    114 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re M.R.J.M., 
    280 S.W.3d 494
    , 503 (Tex. App.—Fort Worth 2009, no pet.).
    The statutory endangerment grounds require clear and convincing proof that
    the parent has: “(D) knowingly placed or knowingly allowed the child[ren] to remain
    in conditions or surroundings which endanger the physical or emotional well-being
    of the child[ren],” or “(E) engaged in conduct or knowingly placed the child[ren]
    with persons who engaged in conduct which endangers the physical or emotional
    well-being of the child[ren].” FAM. § 161.001(b)(1)(D), (E); In re S.M.R., 
    434 S.W.3d 576
    , 585 (Tex. 2014). “[E]ndangerment encompasses a larger array of
    conduct that ‘expose[s a child] to loss or injury’ or ‘jeopardize[s]’ the child.” In re
    R.R.A., 
    687 S.W.3d 269
    , 277 (Tex. 2024) (quoting Tex. Dep’t of Human Servs. v.
    Boyd, 
    727 S.W.2d 531
    , 533 (Tex. 1987)). The term “means more than a threat of
    metaphysical injury or potential ill effects of a less-than-ideal family environment,”
    but “does not require actual harm.” In re E.N.C., 
    384 S.W.3d 796
    , 803 (Tex. 2012);
    see R.R.A., 687 S.W.3d at 277 (citing Boyd, 727 S.W.2d at 533).
    To terminate a parent’s rights for endangerment under Subsections (D) or (E),
    the “parent’s endangering conduct need not ‘be directed at the child[ren, nor must]
    the child[ren] actually suffer[] injury.’” R.R.A., 687 S.W.3d at 277 (quoting Boyd,
    727 S.W.2d at 533); In re C.E., 
    687 S.W.3d 304
    , 310 (Tex. 2024). “[T]ermination
    under (D) requires that the child[ren]’s environment is a source of endangerment,
    and the parent’s conduct may create that dangerous environment.” C.E., 
    687 S.W.3d 8
    at 310. Endangerment under subsection (E), in contrast, focuses on the parent’s
    conduct, and whether the endangerment of the child[ren]’s well-being was the direct
    result of the parent’s acts, omissions, or failures to act. In re J.S., 
    687 S.W.3d 541
    ,
    550 (Tex. App.—Eastland 2024, no pet.). Termination under subsection (E) must
    be based on more than a single act or omission; a voluntary, deliberate, and
    conscious course of conduct by the parent is required. Id.; In re D.T., 
    34 S.W.3d 625
    , 634 (Tex. App.—Fort Worth 2000, pet. denied). “A factfinder may infer
    endangerment from ‘a course of conduct’ that presents substantial risks to the
    child[ren]’s physical or emotional well-being.” R.R.A., 687 S.W.3d at 277.
    Appellant incorrectly asserts that our inquiry is limited to whether she was “fit
    to parent at the time of termination, alone.” A parent’s actions prior to and after the
    children’s removal may show an endangering course of conduct. See J.S., 687
    S.W.3d at 550 (“The endangering conduct may include the parent’s actions before
    the child’s birth and may relate to the parent’s actions while the parent had
    possession of other children.”). “Even evidence of criminal conduct, convictions,
    and imprisonment prior to the birth of a child will support a finding that a parent
    engaged in a course of conduct that endangered the child’s well-being.” In re A.J.M.,
    
    375 S.W.3d 599
    , 606 (Tex. App.—Fort Worth 2012, pet. denied); Walker v. Tex.
    Dep’t of Family & Protective Servs., 
    312 S.W.3d 608
    , 617 (Tex. App.—Houston
    [1st Dist.] 2009, pet. denied) (illegal drug use and offenses that occurred before the
    child’s birth may be considered as part of a course of conduct that endangers a child).
    Drug use and its effects on the parent’s life and ability to parent may also
    demonstrate an endangering course of conduct. J.O.A., 283 S.W.3d at 345; 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.”). “While illegal drug use alone may
    9
    not be sufficient to show endangerment, a pattern of drug use accompanied by
    circumstances that indicate related dangers to the children can establish a substantial
    risk of harm.” R.R.A., 687 S.W.3d at 278. “A reviewing court should not evaluate
    drug-use evidence in isolation; rather, it should consider additional evidence that a
    factfinder could reasonably credit that demonstrates that illegal drug use presents a
    risk to the parent’s ‘ability to parent.’” Id. (quoting J.O.A., 283 S.W.3d at 345).
    Thus, under certain circumstances, such as the ones that are present in this case, “any
    drug activity may render the parent incapable of parenting.” J.S., 687 S.W.3d at 554
    (citing R.R.A., 687 S.W.3d at 278).
    It is undisputed that Appellant has battled an ongoing drug addiction and that
    she used methamphetamine prior to and after the children were removed. She tested
    “mostly positive” on her drug screens and admitted to relapsing a month before the
    final hearing. “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.” J.S., 687 S.W.3d at 551 (internal quotation marks omitted).
    Appellant testified: “My problem is drugs,” and that maintaining sobriety
    required “lock[ing] [herself] in the house.” She blamed her geographical location
    for her recurring drug use and became defensive with the Department’s attorney
    during cross-examination: “I’m just going to keep relapsing because y’all say that I
    have to be here or close by for the kids instead of moving them with me.”
    In rationalizing her relapses, Appellant ignores the consequences of her
    lengthy history of drug abuse. Indeed, “methamphetamine addiction can wreak
    havoc not only on the addict but on the addict’s family,” and young children are
    particularly vulnerable to such an environment. In re H.C., No. 02-23-00477-CV,
    
    2024 WL 1561513
    , at *6 (Tex. App.—Fort Worth Apr. 11, 2024, no pet.) (mem.
    10
    op.). Prior to the births of C.M. and D.M., the Department removed two children
    from Appellant’s care—to which she later voluntarily relinquished her rights—due
    to her methamphetamine use. See C.H., 89 S.W.3d at 27–28 (past performance as a
    parent “could certainly have a bearing on [a parent’s] fitness to provide for” her
    children, and courts should consider the parent’s prior history of child neglect in its
    best-interest analysis). She was also arrested and placed on community supervision
    for drug possession in 2017 and was required to live in a halfway house in 2019 as
    a condition of her community supervision.           Appellant’s incessant drug use
    undoubtedly “exposes the children to the possibility that [she] may be impaired or
    imprisoned,” just as it did with her two older children. See J.S., 687 S.W.3d at 551.
    As recently as June 22, 2023, police stopped a vehicle after seeing the driver
    and the passenger, Appellant, passing a glass pipe back and forth. The officer
    believed that Appellant was under the influence of narcotics and found drug
    paraphernalia after searching the vehicle. Because the driver claimed ownership of
    the vehicle, Appellant was not cited for possession of drug paraphernalia. Although
    Appellant avoided another criminal charge, her actions indicate that she has chosen
    to lead to “a life of uncertainty and instability” for her children. See In re R.W., 
    129 S.W.3d 732
    , 739 (Tex. App.—Fort Worth 2004, pet. denied).
    Appellant’s voluntary, deliberate, and conscious acts constitute more than a
    single act of conduct. On this record, we conclude that there is legally and factually
    sufficient evidence to support the trial court’s finding that Appellant engaged in a
    continuing course of conduct that endangered the physical or emotional well-being
    of her children. See FAM. § 161.001(b)(1)(E). Accordingly, we overrule Appellant’s
    first issue.
    11
    B. The Best Interest of the Children Determination
    In Appellant’s second issue, she challenges the legal and factual sufficiency
    of the evidence to support the trial court’s finding that termination of her parental
    rights is in the best interest of the children.
    First, we reiterate that evidence of each Holley factor is not required to support
    a best interest finding. In re S.R., 
    452 S.W.3d 351
    , 366 (Tex. App.—Houston [14th
    Dist.] 2014, pet. denied); In re S.O., No. 05-22-01019-CV, 
    2023 WL 2237084
    , at
    *11 (Tex. App.—Dallas Feb. 27, 2023, no pet.) (mem. op.). Put differently, the
    absence of evidence on some of these factors does not preclude a best interest
    finding, “particularly if [the] undisputed evidence shows the parental relationship
    endangered the child[ren]’s safety.” In re N.T., 
    474 S.W.3d 465
    , 477 (Tex. App.—
    Dallas 2015, no pet.) (quoting In re A.E., No. 05-14-01340-CV, 
    2015 WL 1184179
    ,
    at *6 (Tex. App.—Dallas Mar. 16, 2015, pet. denied) (mem. op.). Indeed, “evidence
    relating to one single factor may be adequate in a particular situation to support a
    finding that termination is in the best interests of the child[ren].” In re K.S., 
    420 S.W.3d 852
    , 855 (Tex. App.—Texarkana 2014, no pet.). “‘[B]est interest’ is a term
    of art encompassing a much broader, facts-and-circumstances based evaluation that
    is accorded significant discretion.” In re Lee, 
    411 S.W.3d 445
    , 460 (Tex. 2013)
    (quoting Holley, 544 S.W.2d at 371–72).
    The trial court, as the trier of fact, is the sole judge of the witnesses’
    credibility. J.F.-G., 627 S.W.3d at 312. We are not at liberty to disturb the
    determinations of the trier of fact so long as those determinations are not
    unreasonable. Id. at 311–12; In re J.P.B., 
    180 S.W.3d 570
    , 573 (Tex. 2005). Giving
    due deference to the trial court, as we must, we hold that, based on the evidence in
    the record and the application of the Holley factors, the trial court could have
    reasonably formed a firm belief or conviction that termination of Appellant’s
    12
    parental rights was in the best interest of the children. See Holley, 544 S.W.2d at
    371–72.
    As we have said, in its best interest determination, a trial court, as the
    factfinder, may infer that a parent’s past endangering conduct may recur if the
    children are returned to the parent. See In re L.N.C., 
    573 S.W.3d 309
    , 318 (Tex.
    App.—Houston [14th Dist.] 2019, pet. denied); J.D., 
    436 S.W.3d at 118
    ; see also In
    re T.B., No. 09-20-00172-CV, 
    2020 WL 6787523
    , at *8 (Tex. App.—Beaumont
    Nov. 19, 2020, no pet.) (mem. op.) (“factfinder may consider prior CPS history of
    neglect, drug use, or lack of care for the children”). Evidence that is relevant to
    Section 161.001(b)(1) termination grounds may also be relevant to the determination
    of the child[ren]’s best interest. In re C.V.L., 
    591 S.W.3d 734
    , 753 (Tex. App.—
    Dallas 2019, pet. denied). And evidence that supports termination under the grounds
    listed in Section 161.001(b)(1) can be considered in the best-interest analysis. See
    C.H., 89 S.W.3d at 28; C.J.O., 325 S.W.3d at 266. Therefore, the trial court could
    properly consider Appellant’s failure to comply with the conditions of her family
    service plan and her drug use in determining whether the termination of her parental
    rights was in the children’s best interest. See C.H., 89 S.W.3d at 28; C.J.O., 325
    S.W.3d at 266.
    The record shows that the Department attempted to reunify Appellant with
    her children, but she failed to maintain consistent contact with her case manager and
    complete her required services. Despite Appellant’s testimony that her “only issue”
    was her “relapsing,” she did not complete her counseling, missed three substance
    abuse assessments, and has not visited with her children since April of 2023. She
    provided no proof of stable housing or employment and admitted to ongoing
    substance abuse.    Appellant’s failure to comply with her family service plan
    requirements supports the trial court’s best-interest finding. See E.C.R., 
    638 S.W.3d 13
    at 769 (“A trial court is permitted to consider a parent’s . . . failure to comply with a
    family plan of service in its best interest determination.”); In re S.B., 
    207 S.W.3d 877
    , 887–88 (Tex. App.—Fort Worth 2006, no pet.) (“A parent’s drug use, inability
    to provide a stable home, and failure to comply with [her] family service plan support
    a finding that termination is in the best interest of the child.”).
    Between April and July of 2023, Appellant disengaged from communications,
    services, and the children themselves, thereby “posing a substantial risk to the
    children’s emotional well-being.” R.R.A., 687 S.W.3d at 281. In fact, she did not
    inquire about the children during that time. And despite her insistence that “for the
    most part [she] do[es] stay clean,” her own admissions and drug test results prove
    otherwise. This evidence permits the strong inference that Appellant knew the risks
    and consequences of her behavior but nevertheless continued to use
    methamphetamine. As such, the trial court could consider Appellant’s lack of
    remorse and clear parental indifference in its best-interest determination. See In re
    A.J.D.-J., 
    667 S.W.3d 813
    , 823 (Tex. App.—Houston [1st Dist.] 2023, no pet.)
    (“[S]ignificant evidence of parental indifference weighs heavily in favor of a
    factfinder’s finding that termination is in a child’s best interest.”).
    Moreover, the children are doing “[v]ery well” in their current placement.
    Davis testified that they refer to their foster mother as “mom.” Appellant, by
    contrast, has no plans or intentions to provide for her children’s physical and
    emotional needs—her strategy to maintain sobriety by locking herself in her home
    and not answering the door wholly fails to factor into the needs of her children. This
    uncontroverted evidence shows that Appellant was unwilling or unable to provide a
    safe and stable home for C.M. and D.M., which supports the trial court’s best-interest
    finding. See J.S., 687 S.W.3d at 553.
    14
    Appellant’s persistent and unapologetic drug use while under Department
    supervision shows her clear disinterest in placing the welfare of her children before
    her own. See, e.g., S.O., 
    2023 WL 2237084
    , at *12–13 (“Mother’s drug use was not
    isolated but had been an ongoing problem in her life.”); see also N.T., 
    474 S.W.3d at 479
     (“[R]ecent improvement alone is not sufficient to avoid termination of
    parental rights.”) (quoting In re K.D.C., No. 02-12-00092-CV, 
    2013 WL 5781474
    ,
    at *16 (Tex. App.—Fort Worth Oct. 24, 2013, no pet.) (mem. op.)).                                   Upon
    considering the record as it relates to Appellant’s actions and inactions, the
    emotional and physical danger to the children now and in the future, the emotional
    and physical needs of the children now and in the future, Appellant’s lack of parental
    abilities, Appellant’s history with the Department, and her ongoing drug abuse, we
    hold that the evidence is legally and factually sufficient to support the trial court’s
    finding that termination of Appellant’s parental rights is in the best interest of the
    children. See J.W., 645 S.W.3d at 741; Holley, 544 S.W.2d at 371–72. Accordingly,
    we overrule Appellant’s second issue.
    C. Testimony of Undisclosed Witness
    Appellant argues in her third issue that the trial court erroneously allowed an
    undisclosed witness—the foster mother—to testify at the final hearing. See TEX. R.
    CIV. P. 194.4. In general, 2 parties are required to disclose the identity of potential
    trial witnesses at least thirty days before the commencement of trial. See id. Under
    Rule 193.6 of the Texas Rules of Civil Procedure, when a party fails to timely
    supplement a discovery response, the untimely disclosed evidence or witness may
    2
    Effective September 1, 2023, the Texas Legislature enacted Rules 194a.1 through 194a.6 that
    apply to requests for disclosures “in [s]uits [g]overned by the Family Code,” and specifically excepted such
    suits from Rules 194.1 through 194.6 in order to implement and codify the spirit of Chapter 301 of the
    Texas Family Code. See TEX. R. CIV. P. 194, cmt. 2023; Id. R. 194a; see also FAM. §§ 301.001–.108.
    Chapter 301, as added by the legislature, applies only to an action filed on or after September 1, 2023. Act
    of May 4, 2023, 88th Leg., R.S., ch. 844, § 2, 2023 Tex. Sess. Law Serv. Ch. 844 (codified at FAM.
    §§ 301.001–.108). This termination action was filed before September 1, 2023.
    15
    be excluded. TEX. R. CIV. P. 193.6. The trial court may nevertheless admit the
    testimony of an undisclosed witness if the party seeking to present the undisclosed
    witness establishes that: (1) good cause exists for failing to timely disclose the
    witness’s identity; or (2) the failure to disclose will not unfairly surprise or unfairly
    prejudice the other parties. Id.
    Here, the trial court permitted the attorney ad litem to present the foster mother
    as a witness without making a determination of either good cause, or a lack of unfair
    surprise or prejudice to Appellant. Assuming without deciding that the trial court
    erred by permitting the foster mother to testify, Appellant has failed to show that she
    was harmed by the admission of the foster mother’s testimony.
    An error warrants reversal when it either “probably caused the rendition of an
    improper judgment” or “prevented the appellant from properly presenting the case
    to the court of appeals.” TEX. R. APP. P. 44.1(a); In re J.N., 
    670 S.W.3d 614
    , 619
    (Tex. 2023). The reviewing court must evaluate the potential influence or impact of
    the error on the trial court’s final judgment. J.N., 670 S.W.3d at 619. In this case,
    we conclude that the trial court’s admission of the foster mother’s testimony neither
    caused the rendition of an improper judgment, nor prevented Appellant from
    presenting her case to this court.
    We first observe that the trial court, in pronouncing its rulings, expressly relied
    on Appellant’s history with the Department that began in 2017, and her ongoing drug
    abuse. The trial court advised Appellant that addiction is “a horrible problem . . .
    [b]ut at some point it’s on you.” It is clear from the record that the trial court’s
    termination decision was based primarily on Appellant’s actions, and how they
    affected her children’s well-being, rather than solely, if at all, on the foster mother’s
    testimony.
    16
    Finally, as set forth above, the trial court’s findings and its termination of
    Appellant’s parental rights are supported by clear and convincing evidence, even
    without the admission of the foster mother’s testimony. In particular, evidence that
    the children were doing well and thriving in foster care was elicited through Davis.
    If evidence that is erroneously admitted is merely cumulative of other properly
    admitted evidence, then the error is harmless. See State v. Dawmar Partners, Ltd.,
    
    267 S.W.3d 875
    , 881 (Tex. 2008) (“The erroneous admission of testimony that is
    merely cumulative of properly admitted testimony is harmless error.”) (quoting
    Gee v. Liberty Mut. Fire Ins. Co., 
    765 S.W.2d 394
    , 396 (Tex. 1989)). Consequently,
    to the extent that the admission of the foster mother’s testimony was error, if any, its
    admission was harmless. See TEX. R. APP. P. 44.1(a). Accordingly, we overrule
    Appellant’s third issue.
    IV. This Court’s Ruling
    We affirm the order of the trial court.
    W. STACY TROTTER
    JUSTICE
    June 27, 2024
    Panel consists of: Bailey, C.J.,
    Trotter, J., and Williams, J.
    17
    

Document Info

Docket Number: 11-24-00009-CV

Filed Date: 6/27/2024

Precedential Status: Precedential

Modified Date: 6/29/2024