In the Interest of H.C., a Child v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00477-CV
___________________________
IN THE INTEREST OF H.C., A CHILD
On Appeal from County Court at Law No. 2
Parker County, Texas
Trial Court No. CIV22-0708
Before Sudderth, C.J.; Womack and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Mother and Father (collectively, the Parents) appeal from the trial court’s order
terminating their parental rights to H.C. (Holly).1 We affirm the trial court’s order.
II. BACKGROUND
Mother and Father met and started dating in 2019. Mother gave birth to a child
(Amy) in July 2021. During parental-termination proceedings concerning Amy, it was
discovered that Father was not Amy’s father. The couple broke up, but Mother was
already pregnant with Holly. Father is Holly’s father.
Holly was born in 2022 prematurely with a low birthweight. Her meconium
tested positive for methamphetamine and amphetamine. Department of Family and
Protective Services (the Department) Investigator Wendy Baker attempted to speak
with Mother at the hospital after Holly’s birth, but Mother refused to talk with her.
Baker spoke with Father and his mother at their home in Fort Worth and noted that
the home contained no items needed to care for a baby. Father and his mother told
Baker that Mother did not live there.
1
This appeal erroneously identified the child as H.G. when the appeal was
docketed. That error has been corrected. Regardless, we use pseudonyms to identify
the children, and we identify family members by their relationship to the children. See
Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2
The Department attempted to have the Parents drug tested to avoid removing
Holly, but neither Mother nor Father complied with the Department’s request. The
Department also attempted to place Holly with family members, but the family
members identified for possible placement either declined or did not respond to the
Department’s request. Thus, Holly was placed in foster care.
The Department then filed a petition on November 14, 2022, for Holly’s
protection and for termination of the Parents’ rights. The trial court held an adversary
hearing, which the Parents attended, on December 14, 2022, and issued temporary
orders requiring the Parents to submit to “court-ordered” psychological evaluations; to
attend counseling; to comply with the Department’s family service plan; to submit to
“court-ordered” drug- and alcohol-dependency assessments; and to submit specimens,
“as directed by the Department and at times to be determined by the Department, for
analysis by a drug[-]testing laboratory.” The trial court separately ordered Father to
“attend, participate in[,] and successfully complete parenting classes . . . .” The trial
court also ordered the Parents to submit to drug testing within two days. The Parents
failed to take this test.
Seven days later, the Department filed family service plans for the Parents. Each
plan addressed the temporary orders’ requirements and included a “Court Ordered”
notation for each requirement. All of the requirements on Mother’s plan indicated
“Court Ordered: No.” Only the parenting-skills requirement on Father’s plan indicated
“Court Ordered: Yes”; the rest indicated “Court Ordered: No.”
3
The trial court held a status hearing, which neither Parent attended, on January 5,
2023, and issued a status-hearing order reflecting a finding that neither Parent had
reviewed or signed their respective family service plan. The order also approved of and
incorporated the Department’s family service plans, ordered each Parent to pay child
support, established supervised visitation, and notified the Parents that the supervision
level could be reduced only if they “cooperate[d] with the Department and engaged in
[their] ‘Family Plan of Service.’” The trial court also ordered the Parents to submit to
drug testing “before 4:00 p.m.” on the day the order was issued. The Parents failed to
take this test.
Four months later, on May 4, 2023, the trial court held an initial permanency
hearing, which only Father attended. The trial court found that neither Parent had
“demonstrated adequate and appropriate compliance with the service plan,” that the
Parents presented “a continuing danger to [Holly’s] physical health and safety,” and that
returning Holly to either Parent was “contrary to [her] welfare.” The trial court
continued supervised visitation and again notified the Parents that the supervision level
could be reduced only if they complied with their family service plans. The trial court
reincorporated the Department’s family service plans into its permanency-hearing order
and ordered the Parents to submit to drug testing “immediately following court” on the
day the order was issued. They did not comply. Later, at trial, Father testified that he
did not take the test because he “had other things to do.”
4
The trial court held a second permanency hearing on June 15, 2023, that the
Parents attended. The trial court again found that the Parents had not complied with
their family service plans and still presented “a continuing danger to [Holly’s] physical
health and safety.” Thus, returning Holly to either Parent was “contrary to [her]
welfare.” The trial court continued supervised visitation and again notified the Parents
that the supervision level could be reduced only if they complied with their family
service plans. The trial court reincorporated the Department’s family service plans into
its order and ordered the Parents to submit to drug testing on the day the order was
issued. They did not comply.
The trial court held a final permanency hearing on October 12, 2023, that only
Mother attended. The trial court again found that the Parents had not complied with
their family service plans and still presented “a continuing danger to [Holly’s] physical
health and safety.” Thus, returning Holly to either Parent was “contrary to [her]
welfare.” The trial court continued supervised visitation. To have the supervision level
lowered, each Parent was required (1) to “comply with drug testing requests” and
“provide negative drug test results”; (2) to “complete the family plan of services as
[o]rdered by [the court]”; (3) to “demonstrate [that] he/she is safe and appropriate”;
and (4) to demonstrate that “his/her home is safe, stable, drug-free, violence-free, and
appropriate for [Holly].” The trial court reincorporated the Department’s family service
plans into its order and again ordered the Parents to submit to drug testing on the day
the order was issued. Yet again, they did not comply.
5
In all, the Department ordered sixteen separate drug tests for Mother—eight
urinalyses and eight hair-follicle tests—and seventeen separate drug tests for Father—
eight urinalyses and nine hair-follicle tests. Each Parent either failed to take or failed to
pass all but one drug test.
The trial court held the trial on December 7, 2023. Mother appeared through
counsel, and Father appeared pro se. The trial court issued its termination order on
December 8, 2023, terminating Mother’s parental rights under Subsections
161.001(b)(1)(D), (E), (O), and (P) of the Texas Family Code; terminating Father’s
parental rights under Subsections 161.001(b)(1)(E) and (O); and finding that
termination was in Holly’s best interest. This appeal followed.
III. DISCUSSION
In eight issues—two for each subsection at issue—Mother asserts that the
evidence is legally and factually insufficient to support the trial court’s findings. Acting
pro se, Father also filed a notice of appeal but filed a noncompliant brief consisting of
five pages with no party identification, record or authority citations, statement of the
case, statement of facts, summary of the argument, prayer, or appendix. See Tex. R.
App. P. 9.4(i); 38.1(a), (c), (d), (g), (h), (j), (k). We notified Father of his brief’s
deficiencies and requested a corrected brief. We further notified him that we may strike
his brief and dismiss his appeal or deem his noncompliant issues waived if he did not
file a corrected brief. See Tex. R. App. P. 9.4(k). He did not file one.
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Although we liberally construe pro se briefs, a pro se litigant is held to the same
standards as a licensed attorney and must comply with applicable laws and rules of
procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (stating that “pro se
litigants are not exempt from the rules of procedure”); Mansfield State Bank v. Cohn,
573 S.W.2d 181, 184–85 (Tex. 1978) (“There cannot be two sets of procedural rules,
one for litigants with counsel and the other for litigants representing themselves.
Litigants who represent themselves must comply with the applicable procedural rules,
or else they would be given an unfair advantage over litigants represented by counsel.”);
In re P.S., 505 S.W.3d 106, 111 (Tex. App.—Fort Worth 2016, no pet.) (same). We have
“no duty—or even the right—to perform an independent review of the record and the
applicable law to determine whether there was error; we cannot make the party’s
arguments for [hi]m, and then adjudicate the case based on the arguments we have
made on [his] behalf.” Wellness & Aesthetics Inst., PA v. JB&B Cap., LLC, No. 02-22-
00330-CV, 2023 WL 4780511, at *2 (Tex. App.—Fort Worth July 27, 2023, pet. denied)
(mem. op.) (quoting Craaybeek v. Craaybeek, No. 02-20-00080-CV, 2021 WL 1803652,
at *5 (Tex. App.—Fort Worth May 6, 2021, pet. denied) (mem. op.)); see also In re M.G.,
No. 02-23-00074-CV, 2023 WL 4008687, at *4 (Tex. App.—Fort Worth June 15, 2023,
pet. denied) (mem. op.).
In his brief, Father asserts conclusory complaints unsupported by any citation to
the record or to authorities and lacking a clear, cohesive argument or substantive
analysis. Father also fails to explain how, if at all, these complaints were brought to the
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trial court’s attention. See Tex. R. App. P. 33.1(a)(1). Under different circumstances,
we would dismiss Father’s appeal for failure to comply with the briefing rules. See Tex.
R. App. P. 38.9. But because parental termination is severe and permanent, we will
review his issues. See In re J.E.D., No. 11-19-00166-CV, 2019 WL 5617645, at *1 (Tex.
App.—Eastland Oct. 24, 2019, no pet.) (mem. op.) (liberally construing and addressing
issues raised in terminated parent’s noncompliant brief); Williams v. Tex. Dep’t of Protective
& Regul. Servs., No. 14-98-00700-CV, 2000 WL 4939, at *1 n.1 (Tex. App.—Houston
[14th Dist.] Jan. 6, 2000, no pet.) (same).
Construing Father’s pro se brief liberally, we discern that Father complains in his
first issue that the trial judge should have recused herself for purportedly conducting ex
parte conferences at the adversary hearing and one permanency hearing. But Father
did not file a motion to recuse. Nor did he file a record of these hearings—it appears
that no record was made—or cite evidence that he objected to the trial court’s conduct
at these hearings. Thus, Father has failed to preserve this issue for appeal. See Tex. R.
App. P. 33.1(a); Johnson v. Sepulveda, 178 S.W.3d 117, 118 (Tex. App.—Houston [14th
Dist.] 2005, no pet.) (holding that failure to strictly follow recusal procedures in
Rule 18a of the Texas Rules of Civil Procedure resulted in waiver of issue on appeal);
Galvan v. Downey, 933 S.W.2d 316, 321 (Tex. App.—Houston [14th Dist.] 1996, writ
denied) (holding that the error was not preserved when there was no record of a motion
to recuse). In his second and third issues, Father contends that the evidence was
insufficient to support the trial court’s findings under Subsections (O) and (E) because
8
he completed all “court[-]ordered” services and never possessed Holly or played any
role in her in vitro drug exposure. His fourth issue contests the trial court’s best-interest
finding.
Because our analysis of Mother’s issues and Father’s remaining issues overlaps,
we will address the issues together.
A. Standard of Review
For a trial court to terminate a parent–child relationship, the party seeking
termination must prove two elements by clear and convincing evidence: (1) that the
parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and
(2) that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b);
In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). Evidence is clear and convincing if it “will
produce in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” Tex. Fam. Code Ann. § 101.007; Z.N.,
602 S.W.3d at 545.
Thus, when reviewing the sufficiency of the evidence to support a termination
finding, we ask whether a reasonable factfinder could have formed a firm belief or
conviction that the finding was true. Z.N., 602 S.W.3d at 545. Both legal and factual
sufficiency turn on this question; the distinction between the two sufficiency analyses
“lies in the extent to which disputed evidence contrary to a finding may be considered”
in answering the question. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
9
In our legal sufficiency analysis, we “look at all the evidence in the light most
favorable to the finding,” assuming that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could have done so and disregarding all evidence
that a reasonable factfinder could have disbelieved. Z.N., 602 S.W.3d at 545; A.C.,
560 S.W.3d at 630–31. Factual sufficiency, however, requires “weighing disputed
evidence contrary to the finding against all the evidence favoring the finding” to
determine if, “in light of the entire record, the disputed evidence a reasonable factfinder
could not have credited in favor of a finding is so significant that the factfinder could
not have formed a firm belief or conviction that the finding was true.” A.C., 560 S.W.3d
at 630–31; see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“When the factual
sufficiency of the evidence is challenged, only then is disputed or conflicting evidence
under review.”). The factfinder is the sole judge of the witnesses’ credibility and
demeanor. J.O.A., 283 S.W.3d at 346.
Legal and factual sufficiency determinations overlap because factually sufficient
evidence is necessarily legally sufficient. In re A.O., No. 02-21-00376-CV, 2022 WL
1257384, at *8 (Tex. App.—Fort Worth Apr. 28, 2022, pet. denied) (mem. op.).
Therefore, and because the Parents challenge both factual and legal sufficiency, we will
conduct a consolidated review. See id. (doing same).
Generally, “[t]o affirm a termination judgment on appeal, a court need uphold
only one termination ground,” plus the best-interest finding. In re N.G., 577 S.W.3d
230, 232–33 (Tex. 2019). Subsection (M), however, allows a trial court to terminate
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parental rights when the parent’s relationship with another child was terminated based
on a finding under Subsection (D) or (E). Tex. Fam. Code Ann. § 161.001(b)(1)(M).
Thus, when a parent challenges a Subsection (D) or (E) finding, due process and due
course of law demand that we address the finding and detail our analysis. N.G.,
577 S.W.3d at 235, 237. Accordingly, we must address the trial court’s Subsections (D)
and (E) findings, even though they may not be dispositive. See In re C.W., No. 02-21-
00252-CV, 2022 WL 123221, at *3 n.5 (Tex. App.—Fort Worth Jan. 13, 2022, no pet.)
(mem. op.); In re J.B., No. 02-21-00239-CV, 2021 WL 6144074, at *20 (Tex. App.—
Fort Worth Dec. 30, 2021, pet. denied) (mem. op.).
B. Endangerment
In her first and second issues, Mother asserts that the evidence is legally and
factually insufficient to support termination under Subsection (D). She asserts in her
third and fourth issues that the evidence is legally and factually insufficient to support
termination under Subsection (E). Father makes the same assertion in his third issue.
In her seventh and eighth issues, Mother asserts that the evidence is legally and factually
insufficient to support termination under Subsection (P). Neither Parent explains how
the evidence is insufficient to support any of these grounds.
1. Applicable Law
Subsection (D) requires a finding that the parent “knowingly placed or knowingly
allowed the child to remain in conditions or surroundings [that] endanger[ed] the
[child’s] physical or emotional well-being.” Tex. Fam. Code Ann. § 161.001(b)(1)(D).
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Subsection (E) requires a finding that the parent “engaged in conduct or knowingly
placed the child with persons who engaged in conduct [that] endanger[ed] the [child’s]
physical or emotional well-being.” Id. § 161.001(b)(1)(E). Similarly, Subsection (P)
requires a finding that the parent “used a controlled substance . . . in a manner that
endangered the health or safety of the child” and “failed to complete a court-ordered
substance abuse treatment program” or “complet[ed] a court-ordered substance abuse
treatment program [but] continued to abuse a controlled substance.”
Id. § 161.001(b)(1)(P).
To “‘endanger’ means to expose to loss or injury; to jeopardize.” Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re A.N., No. 02-22-00036-CV,
2022 WL 2071966, at *3 (Tex. App.—Fort Worth June 9, 2022, pet. denied) (mem. op.).
To terminate a parent’s rights for endangerment under Subsections (D), (E), or (P), the
parent’s conduct need not be directed at the child, nor must the child actually suffer
injury; rather, the specific danger to the child’s well-being may be inferred from parental
misconduct standing alone. In re R.R.A., No. 22-0978, 2024 WL 1221674, at *6 (Tex.
Mar. 22, 2024) (addressing Subsection (P)); In re M.R., No. 02-19-00212-CV, 2019 WL
6606167, at *7 (Tex. App.—Fort Worth Dec. 5, 2019, no pet.) (mem. op.) (citing In re
M.N.G., 147 S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied), and
addressing Subsections (D) and (E)).
“Conduct-based endangerment under Subsection (E) requires more than a
‘single act or omission’; it requires a ‘voluntary, deliberate, and conscious course of
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conduct.’” A.N., 2022 WL 2071966, at *3 (quoting J.B., 2021 WL 6144074, at *21).
This may include “actions before the child’s birth, actions while the child is not in the
parent’s presence, and actions while the child is in the Department’s custody.” Id. at *3(quoting In re C.Y., No. 02-21-00261-CV, 2022 WL 500028, at *2 (Tex. App.—Fort
Worth Feb. 18, 2022, no pet.) (mem. op.)). Although illegal drug use alone may not
suffice to show endangerment under Subsection (P), “a pattern of drug use
accompanied by circumstances that indicate related dangers to the child can establish a
substantial risk of harm.” R.R.A., 2024 WL 1221674, at *7.
“Drugs and their effect on a person’s ability to parent may qualify as an
endangering course of conduct.” In re A.K., No. 02-22-00154-CV, 2022 WL 4545571,
at *5 (Tex. App.—Fort Worth Sept. 29, 2022, pet. denied) (mem. op.) (citing In re M.M.,
No. 02-21-00185-CV, 2021 WL 5227177, at *5 (Tex. App.—Fort Worth Nov. 10, 2021,
no pet.) (mem. op.)). Evidence of a parent’s drug use can support the conclusion that
the child’s surroundings endanger her physical or emotional well-being under
Subsection (D) and can qualify as a voluntary, deliberate, and conscious course of
conduct endangering the child’s well-being under Subsection (E). In re A.C., No. 05-
22-00341-CV, 2022 WL 4923519, at *6 (Tex. App.—Dallas Oct. 4, 2022, no pet.) (mem.
op.) (citing In re C.V. L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet. denied));
see also M.M., 2021 WL 5227177, at *5 (citing Walker v. Tex. Dep’t of Fam. & Protective
Servs., 312 S.W.3d 608, 617–18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)). A
parent’s decision to use illegal drugs during the pendency of a termination suit, when
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the parent’s parental rights are in jeopardy, demonstrates a voluntary, deliberate, and
conscious course of conduct that endangers a child’s well-being. A.K., 2022 WL
4545571, at *5; In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011,
pet. denied). When evaluating whether a parent’s illegal drug use endangers a child
under Subsection (P), we do not “evaluate drug-use evidence in isolation,” but we
“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.’”
R.R.A., 2024 WL 1221674, at *7 (quoting J.O.A., 283 S.W.3d at 345).
2. Analysis
The record reflects that the Parents habitually used methamphetamine and did
not stop after the Department filed this suit. Specifically, Holly tested positive for
methamphetamine and amphetamine at birth, and Father testified that Mother was
using drugs while she was pregnant with Holly. Although he later contradicted his
testimony, the trial court was the sole judge of Father’s credibility and the weight given
to his testimony. See J.O.A., 283 S.W.3d at 346. Mother’s drug use was also an issue in
the termination case concerning Amy, and Mother was pregnant with Holly during that
proceeding. Mother’s parental rights were not terminated in that case only because
Amy was placed with Mother’s mother.
Father admitted at trial that he had tested positive for methamphetamine and
marijuana use. He further admitted that he had been using methamphetamine since he
was nineteen and that he had been using marijuana “for a long time.” CASA volunteer
14
Piper Porter testified that she had observed the Parents with “very glossy eyes [and]
slurred speech, [and] . . . smell[ing] of marijuana during visits [with Holly]” Father also
admitted that he had used methamphetamine with Mother, specifically doing so in
August 2023, when he failed a drug test.
The record also reflects that each Parent was ordered to take at least sixteen drug
tests. Despite having received notice of each test, they failed to take or pass almost all
of them. Family service plan evaluations admitted at trial also indicated that Father
openly “refused to take drug tests[,] except [at] a place that has a history of taking bribes
for clean tests.” Father admitted at trial that he had “only taken two drug tests” while
this case has been pending. Department caseworker Crystal Celerier testified that
Mother had taken “some” drug tests. She also spoke with Mother about her failed drug
tests and testified that Mother was not surprised that she had failed the tests. “[A]
factfinder may reasonably infer that a parent’s failure to comply with drug-test
requirements indicates drug use.” In re D.A., No. 02-22-00260-CV, 2022 WL 17841133,
at *7 (Tex. App.—Fort Worth Dec. 22, 2022, pet. denied) (mem. op.) (citing In re
W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.)).
The record further reflects that neither Parent participated in court-ordered
substance-abuse programs. And according to Celerier, the Parents’ continued drug use
endangered Holly.
Indeed, methamphetamine addiction can wreak havoc not only on the addict but
on the addict’s family, and young children, such as Holly, are particularly vulnerable.
15
See M.M., 2021 WL 5227177, at *6. “The danger here is more than ‘metaphysical,’ and
more is at stake than a less-than-ideal family environment.” Id.; see Boyd, 727 S.W.2d
at 533 (“‘[E]ndanger’ means more than a threat of metaphysical injury or the possible
ill effects of a less-than-ideal family environment, [but] it is not necessary that the
conduct be directed at the child or that the child actually suffers injury.”). The record
reflects not only evidence of the Parents’ habitual, unrelenting methamphetamine use
but their refusal to acknowledge and address their addiction, even when faced with the
prospect of losing their daughter. This is sufficient to demonstrate their voluntary,
deliberate, and conscious course of conduct that endangered Holly’s well-being. See
A.K., 2022 WL 4545571, at *5.
The record also reflects that the Parents refused to acknowledge, much less
address, Holly’s special needs. The record reflects that Holly required a special feeding
protocol to prevent her from aspirating while eating. This became an issue when the
Parents failed to properly feed Holly during supervised visits. Celerier testified that
when she spoke with them about this, they “adamantly denied that there was anything
wrong with [Holly],” denied that “she needed to be fed that [special] way,” and asserted
that “they knew how to feed her and . . . could take care of her.” Celerier cited this as
an additional reason that Holly should not be returned to the Parents.
Father did not refute Celerier’s testimony but merely offered that his mother
worked for a hospital, thus he would “have access to get [Holly’s special needs] taken
care of.” He further asserted that Mother had demonstrated the ability to care for a
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special-needs child by addressing Amy’s “G-button.” But he later admitted that Mother
was only allowed supervised visitation of Amy and had never taken care of her alone.
Evidence that the Parents denied and even refused to address Holly’s special needs
further supports the trial court’s endangerment findings.
The Parents also failed to provide proof of employment and stable, appropriate
housing. Specifically, Baker testified that she found no preparations for Holly’s care
when she visited Father’s home. She was also told that Father, who lives with his
mother and brother, had planned to sleep on the couch while using his mother’s office
or a small room for Holly. Celerier testified that she did not assess Father’s home
because his “hostility . . . towards caseworkers” prevented her from visiting his home.
Porter echoed Celerier’s concern when concluding that Father’s home was not
appropriate for Holly. Father rebutted these assertions, contending that his home was
safe and equipped to care for Holly. The trial court was able to weigh this testimony.
See J.O.A., 283 S.W.3d at 346. Mother’s whereabouts were unknown at the time of trial
because she had failed to provide the Department with her address. Thus, the
Department was unable to evaluate her housing.
On this record, we conclude that the evidence is legally and factually sufficient
to support the trial court’s findings under Subsections (D), (E), and (P). Accordingly,
we overrule Mother’s first, second, third, fourth, seventh, and eighth issues, and
Father’s third issue.
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C. Failure to Complete Service Plan
In Mother’s fifth and sixth issues and in Father’s second issue, the Parents assert
that the evidence is insufficient to support the trial court’s finding that they failed to
complete their family service plans. See Tex. Fam. Code Ann. § 161.001(b)(1)(O)
(permitting parental termination for failing “to comply with the provisions of a court
order that specifically established the actions necessary for the parent to obtain the
return of the child who has been in the permanent or temporary managing
conservatorship of the Department”). Both Parents assert that they completed all
court-ordered services. In so arguing, they rely on the family service plans’ “Court
Ordered” designations. Mother asserts that she was not required to complete any of
her family service plan because it “never had a box checked that would have shown
[her] each category of services [that were] court-ordered.” Father asserts that only the
“psych[iatric] evaluation and home evaluation” were court-ordered and that he
completed these services.
Although the record reflects that the family service plans incorrectly indicated
“Court Ordered: No” on all but Father’s parenting-skills requirement, the family
service plans were expressly incorporated into the trial court’s orders. The trial court
first addressed the Department’s family service plans in its temporary orders. The
temporary orders expressly required the Parents (1) to submit to “court-ordered”
psychological evaluations; (2) to attend counseling “upon referral by the Department
caseworker”; (3) to comply with the Department’s family service plans; (4) to submit to
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“court-ordered” drug- and alcohol-dependency assessments; and (5) to submit
specimens, “as directed by the Department and at times to be determined by the
Department, for analysis by a drug testing laboratory.” Father was separately ordered
to “attend, participate in[,] and successfully complete parenting classes . . . .” Thus, on
their face, the temporary orders required the Parents to comply with Department-
ordered services, save the two services yet to be “court-ordered.”
The Department issued the family service plans seven days later and attempted
to review them with the Parents. But the Parents did not comply. Celerier testified that
she met with Mother and gave her a copy of the family service plan but could not
complete the service-plan review because Mother “didn’t want to finish the
conversation.” Celerier repeatedly told Mother that it was important to complete the
service plan. Father testified at trial that he was aware of the family service plan but
was not aware that it was a court order because “[t]he packets that [he] was given
said[‘]no.[’]”
Regardless, the trial court held a status hearing two weeks after issuing temporary
orders and signed an order requiring the Parents to comply with the family service plans.
The status-hearing order also expressly required service-plan compliance to reduce
supervision of the Parent’s visitations and notified the Parents that their service-plan
progress would be reviewed at subsequent hearings. Although the Parents did not
attend this hearing, the Department notified the Parents of the services it had set up for
them.
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Father appeared at the first permanency hearing on May 4, 2023, and both
Parents appeared at the second permanency hearing on June 15, 2023. True to its
status-hearing order, the trial court’s permanency-hearing orders reflect that the trial
court reviewed the Parents’ service-plan progress and found them wanting. These
orders also incorporated the Department’s family service plans as orders of the court.
Thus, even if the Parents were at one time confused by the erroneous family service
plans, any such confusion was resolved for Father by May 4, 2023, and for Mother by
June 15, 2023.
Yet, as reflected in the trial court’s October 12, 2023 permanency-hearing order,
the Parents still failed to comply with the family service plans. Celerier testified at trial
that Father had only participated in supervised visitations and his psychological
evaluation2 and that Mother “did not follow through with any services completely.”
She further testified that neither Parent completed any service, which included
following service recommendations.
Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court’s finding that the Parents failed to comply with the Department’s
Notably, the psychological evaluation was designated “Court Ordered: No” on
2
Father’s family service plan, yet Father completed this requirement. Parenting-skills,
however, was designated “Court Ordered: Yes,” but he failed to complete this
requirement.
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family service plans. See Tex. Fam. Code Ann. § 161.001(b)(1)(O). We overrule
Mother’s fifth and sixth issues and Father’s second issue.
D. Best Interest
In his fourth issue, Father contends that the evidence is insufficient to support
the best-interest finding because the trial court did not find that he was an unfit parent.
Mother does not contest the trial court’s best-interest finding.
Although we generally presume that keeping a child with a parent is in the child’s
best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest analysis is
child-centered, focusing on the child’s well-being, safety, and development, A.C.,
560 S.W.3d at 631. In determining whether evidence is sufficient to support a best-
interest finding, we review the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex.
2013). Evidence probative of a child’s best interest may be the same evidence that is
probative of a Subsection (b)(1) ground. Id. at 249; In re C.H., 89 S.W.3d 17, 28 (Tex.
2002); see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the evidence in
light of nonexclusive factors that the factfinder may apply in determining the child’s
best interest:
(A) the child’s desires;
(B) the child’s emotional and physical needs now and in the future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
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(E) the programs available to assist these individuals to promote the
child’s best interest;
(F) the plans for the child by these individuals or by the agency seeking
custody;
(G) the stability of the home or proposed placement;
(H) the parent’s acts or omissions indicating that the existing parent–
child relationship is not a proper one; and
(I) any excuse for the parent’s acts or omissions.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); E.C.R., 402 S.W.3d at 249 (stating
that in reviewing a best-interest finding, “we consider, among other evidence, the Holley
factors”). These factors are not exhaustive, and some may not apply to particular cases.
C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be
sufficient to support a finding that termination is in the child’s best interest. Id. On
the other hand, “paltry evidence relevant to each” factor will not support such a finding
in cases involving more complex facts. Id.
The record reflects evidence supporting the trial court’s best-interest finding
under every Holley factor except one: the child’s desires. This is only because Holly is
too young to voice a desire. See A.K., 2022 WL 4545571, at *3; In re M.H., 319 S.W.3d
137, 150 (Tex. App.—Waco 2010, no pet.); cf. Tex. Fam. Code Ann. § 153.134(a)(6) (a
child must be at least twelve years old before the child’s preference, if any, regarding
the person to have the exclusive right to designate the child’s primary residence
becomes a factor), § 156.101(a)(2) (same).
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1. Holly’s Emotional and Physical Needs Now and in The Future
The record reflects that Holly had to be fed “on her side and [at a] pace so that
she will not aspirate.” As previously noted, the Parents denied and refused to address
this need. Holly’s foster mother also testified at trial that Holly had been “hospitalized
for RSV3 because of congestion that she was having a hard time kicking” and needed
surgery to investigate her “swallowing issue,” “remove her adenoids, place tubes in her
ears to help with drainage, and do a full airway assessment.” The record also reflects
that Holly was receiving treatment to address delays in “fine motor skills” and walking.
Holly’s foster parents were addressing Holly’s special needs.
Although Father testified that Mother had cared for Amy’s special needs, he
admitted on cross-examination that she was never alone with Amy. Father offered only
that he had access to medical resources because his mother worked for a hospital. No
other evidence was offered to demonstrate that the Parents were willing and able to
address Holly’s special needs. This factor weighs in favor of the trial court’s best-
interest finding.
RSV means “respiratory syncytial virus.” See In re S.R., No. 02-11-00153-CV,
3
2012 WL 4465153, at *1 (Tex. App.—Fort Worth Sept. 27, 2012, no pet.) (mem. op.
on reh’g).
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2. Emotional and Physical Danger to Holly Now and in the Future and
Programs Available to Assist the Parents
The Parents’ drug use while this suit has been pending indicates that they will
likely continue using drugs. This fact alone could constitute a danger to Holly. See
M.M., 2021 WL 5227177, at *6. Moreover, neither Parent made any effort to address
their drug addiction, despite having access to services. Indeed, neither Parent started,
much less completed, any service except visitation and Father’s psychological
assessment. Instead, they chose to argue that the services were not court-ordered.
Thus, the trial court could have concluded that even if programs were made available
to the Parents, the Parents would not have benefitted from them. See In re N.K.,
399 S.W.3d 322, 334 (Tex. App.—Amarillo 2013, no pet.). These factors weigh in favor
of the trial court’s best-interest finding.
3. The Parents’ Parental Abilities
Although the Parents completed some of their supervised visitations, the record
reflects that they failed to exhibit appropriate behavior during some visits. Specifically,
Porter testified that she witnessed Father “whistling, like as if to call a dog, to get
[Holly’s] attention” during visitations and that during a September 2023 visit, Father
“threw a book on the floor to, like, make a loud noise to get [Holly’s] attention when
she was just wanting to play.” Father denied the whistling allegation, and the trial court
was able to weigh this testimony. See J.O.A., 283 S.W.3d at 346. Porter also observed
that both Parents had “very glossy eyes [and] slurred speech, and . . . smell[ed] of
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marijuana” when they visited Holly in November 2023, one month before trial. She
also observed that Holly generally avoided the Parents when they would visit and did
not “necessarily want to be in the vicinity with them.”
Father failed to start, much less complete, parenting classes—which were
designated “Court Ordered: Yes” on his service plan. Instead, he chose to argue that
they were not court-ordered. This weighs against Father on the trial court’s best-
interest finding.
In contrast, the record reflects that Mother completed parenting classes during
her prior termination proceeding and exhibited “a good amount of knowledge about
parenting.” Celerier testified that Mother attended most of her scheduled visits and
behaved appropriately most of the time. Father also testified that Mother was willing
and able to care for Holly, but he failed to cite any evidence supporting this contention.
Had Mother contested the trial court’s best-interest finding, evidence that Mother had
developed parenting skills but failed to consistently exhibit them during visits would
render this factor neutral for Mother on the trial court’s best-interest finding.
4. The Plans for Holly by the Individuals Seeking Custody
The Department attempted to place Holly with Mother’s parents, who also had
possession of Amy, but they declined to take Holly. Father asked the Department to
consider his mother for Holly’s placement. The Department made multiple attempts
to contact her, but she never responded. No other relatives were identified as possible
placements.
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Holly’s foster mother testified that her other children treated Holly like a sister
and that she wanted “to love [Holly] for the rest of her life, give her stability [and] peace,
[and] teach her about Jesus.” She had adopted her other children and planned to adopt
Holly. When asked about his plans for Holly, Father offered only that he wanted her
returned and “then we would just like to continue on like any normal family.” The
Parents offered no other evidence of their plans for Holly. This factor weighs in favor
of the trial court’s best-interest finding.
5. The Stability of the Parents’ Homes or the Proposed Placement
“[C]hildren need permanency and stability.” In re G.V., III, 543 S.W.3d 342, 350
(Tex. App.—Fort Worth 2017, pet. denied). “A child’s need for permanence through
the establishment of a stable, permanent home is a paramount consideration in the best-
interest determination.” M.M., 2021 WL 5227177, at *8 (citing In re E.R.W., 528 S.W.3d
251, 267 (Tex. App.—Houston [14th Dist.] 2017, no pet.)). The record does not reflect
that either Parent had a stable home for Holly. Father lives with his mother and brother
and was unprepared to care for Holly. And Father’s “hostility . . . towards
caseworkers” prevented any further evaluation of his home. Mother’s whereabouts
were unknown at the time of trial because she had failed to provide the Department
with her address. Thus, the Department was unable to evaluate her housing. And
neither Parent provided proof of employment. This factor weighs in favor of the trial
court’s best-interest finding.
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6. The Parents’ Acts or Omissions Indicating that the Existing Parent–
Child Relationship is Not a Proper One and Any Excuse for the
Parents’ Acts or Omissions
The Parents’ methamphetamine addictions are well-documented in the record.
They either failed or failed to submit to almost every drug test scheduled during this
case and refused to participate in substance-abuse treatment and counseling. Father
also refused to participate in parenting classes. Despite being ordered to pay child
support starting in March 2023, Mother failed to pay child support until October 2023,
and Father did not pay at all. The only excuses offered at trial for these acts or
omissions were ignorance and lack of a court order. But, as previously discussed, the
trial court ordered the services at issue. The Parents were also notified of the services
and the importance of working their family service plans and given the opportunity to
do so. Yet they failed to make even a minimal effort to do so. This factor weighs in
favor of the trial court’s best-interest finding.
Stability and permanence are paramount in a child’s upbringing. In re Z.C.,
280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied) (per curiam). The
Parents cannot provide either. The record reflects that they openly refused to
acknowledge, much less address, their methamphetamine addictions. They further
failed to offer proof of stable employment and appropriate housing. Indeed, they failed
to pay all but two months of child support. Moreover, they openly rejected almost all
of the services offered to help them address their issues despite the looming prospect
of losing their parental rights. In contrast, Holly’s foster parents are willing and able to
27
provide Holly with a stable home and address her special needs. Accordingly, we hold
that the evidence is legally and factually sufficient to support the trial court’s best-
interest finding as to Father. See A.C., 560 S.W.3d at 631.
IV. CONCLUSION
Having overruled all of the Parents’ issues and having determined that the
evidence is sufficient to support the trial court’s best-interest finding, we affirm the trial
court’s judgment.
/s/ Dana Womack
Dana Womack
Justice
Delivered: April 11, 2024
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