In the Interest of N.L.S., E.J.C., AKA E.J.C., Children v. Department of Family and Protective Services ( 2023 )

Opinion issued October 12, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00297-CV
———————————
IN THE INTEREST OF N.L.S. AND E.J.C. A/K/A E.J.C., CHILDREN
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Case No. 114085-F
MEMORANDUM OPINION
In this accelerated appeal,1 appellant, mother, challenges the trial court’s
order, entered after a bench trial, terminating her parental rights to her minor
children, N.L.S. and E.J.C., also known as E.J.C. (collectively, the “children”), and
awarding appellee, the Department of Family and Protective Services (“DFPS”),
1
See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4.
sole managing conservatorship of the children. Appellant, father, challenges the trial
court’s order, entered after a bench trial, terminating his parental rights to his minor
child, N.L.S.2 In three issues, mother contends that the trial court erred in appointing
DFPS as the sole managing conservator of the children and the evidence is legally
and factually insufficient to support the trial court’s findings that she knowingly
placed, or knowingly allowed the children to remain, in conditions or surroundings
which endangered their physical or emotional well-being,3 she engaged, or
knowingly placed the children with persons who engaged, in conduct that
endangered their physical or emotional well-being,4 she failed to comply with the
provisions of a court order that specifically established the actions necessary for her
to obtain the return of the children,5 and termination of her parental rights was in the
best interest of the children.6 In two issues, father contends that the evidence is
legally and factually insufficient to support the trial court’s findings that father
engaged, or knowingly placed N.L.S. with persons who engaged, in conduct that
2
N.L.S. was seven-years old and E.C.J. was one-year old at the time the trial court
signed its order terminating mother’s and father’s parental rights. The trial court
also terminated the parental rights of E.C.J.’s father, but he is not a party to this
appeal.
3
See TEX. FAM. CODE ANN. § 161.001(b)(1)(D).
4
See id. § 161.001(b)(1)(E).
5
See id. § 161.001(b)(1)(O).
6
See id. § 161.001(b)(2).
2
endangered his physical or emotional well-being7 and termination of his parental
rights was in the best interest of N.L.S.8
We affirm in part and reverse and render in part.
Background
On January 6, 2023, DFPS filed a second amended petition seeking
termination of mother’s parental rights to the children, termination of father’s
parental rights to N.L.S., and managing conservatorship of the children.9
Officer Bilbrey
At trial, Holiday Lakes Police Department (“HLPD”) Officer P. Bilbrey
testified that, while engaging in a welfare check on August 16, 2021, she went to a
trailer home located in Holiday Lakes, Texas at about 5:20 p.m. Bilbrey did not see
any cars in the driveway of the home. When Bilbrey knocked on the front door,
7
See id. § 161.001(b)(1)(E).
8
See id. § 161.001(b)(2). Although in his prayer in his appellant’s brief, father
requests “reversal of the trial court’s appointment of . . . DFPS [as] permanent
managing conservator[]” of N.L.S., father has not challenged or raised an issue in
his briefing related to the portion of the trial court’s order awarding DFPS sole
managing conservatorship of N.L.S. See TEX. R. APP. P. 38.1(f) (requiring
appellant’s brief to concisely state all issues presented for review), 38.1(i) (brief
must contain clear and concise argument for contentions made, with appropriate
citations to authorities and to record); Jacobs v. Satterwhite, 65 S.W.3d 653, 655–
56 (Tex. 2001) (failure to raise issue on appeal waives error). Thus, to the extent
that father seeks to challenge the trial court’s appointment of DFPS as the sole
managing conservator of N.L.S., we hold that the issue is waived due to inadequate
briefing.
9
DFPS also sought termination of the parental rights of E.J.C.’s father.
3
N.L.S. answered.10 Bilbrey asked N.L.S. if mother was home, and N.L.S. told her
that he was “home alone,” “mother [was] not [t]here,” and he had her cellular
telephone. (Internal quotations omitted.) When Bilbrey asked N.L.S. if he knew
where mother had gone, he said “[n]o.” (Internal quotations omitted.) Because
N.L.S.’s answers to her questions were concerning, Bilbrey entered the home and
yelled, “Holiday Lakes Police Department.” (Internal quotations omitted.) No one
responded. Bilbrey then shouted several more times. She also banged on the
bedroom door in the home, which was locked, and yelled, “Holiday Lakes Police
Department. Is anybody home?” (Internal quotations omitted.) No one responded.
Bilbrey estimated that she was inside the home for about five to ten minutes
knocking on doors and yelling, but she never received a reply.
According to Officer Bilbrey, she stayed at the trailer home with N.L.S. for
about fifteen to thirty minutes. While there, she had concerns about the condition of
the home. Ultimately, around 5:45 p.m. Bilbrey and N.L.S. left the home together,
and she brought him to the HLPD station with her. During the entire time that
Bilbrey was at N.L.S.’s home on August 16, 2021, no adult was present with N.L.S.
Officer Bilbrey explained that the HLPD station was about three blocks away
from the trailer home where she found N.L.S. Neither mother nor father came
looking for N.L.S. while he was at the HLPD station. At about 7:00 p.m., another
10
N.L.S. was five-years old at the time.
4
law enforcement officer went back to the trailer home. Law enforcement officers
finally found mother around 7:45 p.m., and mother came to the HLPD station around
8:00 p.m. Around 10:00 p.m., Bilbrey went back to the trailer home to pick up
E.J.C., who was an infant.11 Another adult, “Frankie,” was at the home with E.J.C.,
and she put together a bag for E.J.C. Both Frankie and Bilbrey looked around the
home for formula for E.J.C., but they could only find enough formula in the home
to make one two-ounce bottle. Although Frankie gave Bilbrey a car seat for E.J.C.,
it was “[d]irty.” Frankie did not give Bilbrey any clothes that fit E.J.C. Frankie told
Bilbrey that she had been gone from the home all day.
Officer Bilbrey further testified that when she spoke to mother at the HLPD
station, mother told her that she had been sleeping in the bedroom when Bilbrey first
came to the trailer home around 5:20 p.m. But, at trial, Bilbrey explained that when
she was at the trailer home on August 16, 2021, she had tried to open the door to the
bedroom, and the door was locked. Bilbrey noted that she did a “cop knock” on the
bedroom door loudly, and she did not hear a response from anyone on the other side
of the bedroom door, where mother was purportedly sleeping.
Officer Newberry
Former HLPD Officer M. Newberry testified that on August 16, 2021, she
performed a welfare check, along with her then-partner, Officer Bilbrey, at a trailer
11
E.J.C. was two-months old at the time.
5
home located in Holiday Lakes. Upon arrival at the trailer home around 5:20 p.m.,
Bilbrey knocked on the front door, and N.L.S. answered. The officers asked N.L.S.
if he was home alone, and he said “yes” and that “nobody was home.” (Internal
quotations omitted.) Bilbrey then entered the home to determine whether any other
person was present. Bilbrey knocked loudly and yelled loudly while inside the trailer
home. In Newberry’s opinion, if someone was home, she “would have known [that
Bilbrey] was in the house.” Bilbrey tried to open the bedroom door in the trailer
home but could not do so because it was locked. Bilbrey did not find anyone else in
the home other than N.L.S. Newberry then made a call to DFPS. DFPS told the law
enforcement officers to bring N.L.S. back to the HLPD station with them, which
they did. Newberry estimated that she and Bilbrey were at the trailer home for about
thirty to forty-five minutes with N.L.S. before they took N.L.S. to the HLPD station.
After Newberry dropped Bilbrey and N.L.S. off at the HLPD station, she went to
buy food for N.L.S. and brought it back to him.
Officer Newberry further testified that at some point while N.L.S. was at the
HLPD station, DFPS investigator Heather Mendoza arrived. And at about 7:00 p.m.,
Newberry went back to the trailer home to see if anyone was there. At the trailer
home, Newberry pounded on the door and yelled, but no one answered. There were
no cars in the driveway.
6
At 7:24 p.m., law enforcement officers received a message from a neighbor
stating that there was a car in the trailer home’s driveway, and Officer Newberry
returned to the trailer home at about 7:36 p.m., along with Officer Bilbrey.
Newberry knocked on the front door of the home, and a woman, “Frankie,”
answered. Newberry identified herself and said that she was looking for mother.
Frankie indicated that mother was inside the home. Bilbrey then spoke with mother
and asked mother if she knew where N.L.S. was. Mother responded that N.L.S. was
“out playing at a friend’s house,” and then Bilbrey told mother that N.L.S. was at
the HLPD station. Mother indicated to Bilbrey that the last time she had seen N.L.S.
was “a few hours” before the officers’ arrival. The officers then requested that
mother come to the HLPD station, which was a few blocks away from the trailer
home.
According to Officer Newberry, she and Officer Bilbrey arrived back at the
HLPD station at about 7:45 p.m., but mother did not show up. Thus, at about
8:00 p.m., Newberry went back to the trailer home to find mother. Newberry found
mother “fiddling with something on the front porch, [and] kind of going in and out”
of the home. Mother and Frankie were talking. Newberry told mother that “she
needed to come now,” and she did not leave the home until mother followed her
back to the HLPD station.
7
HLPD Incident Report
The trial court admitted into evidence a copy of a HLPD incident report
related to the events on August 16, 2021. It lists mother as the “[s]uspect/[o]ffender”
and the offense as abandoning or endangering a child.12
Officer Newberry states in the “[n]arrative[]” portion of the incident report
that she and Officer Bilbrey received a telephone call from a Holiday Lakes resident
about a five-year old child, N.L.S., who had been at the resident’s home for the past
few days. N.L.S. had been spending all day at her home with “no parent coming by
to check on him.” The resident reported that N.L.S. had arrived at her home each
day dirty, hungry, with no shoes, and in the same clothes. On August 16, 2021,
N.L.S. showed up at the resident’s home at about 8:00 a.m., with a fish tank and
some other belongings in his hands. He asked the resident if he could move in with
her because “his mom [had] kicked him out of [h]is home.” N.L.S., “with tears in
his eyes,” told the resident that he had been kicked out of his home “because he was
trying to fill his fish tank up.” When the resident had to leave her home later that
day, she told N.L.S. that he needed to go home until she returned. But when she
drove by N.L.S.’s home, she saw N.L.S. sitting on the front porch of his home
holding his fish tank. The resident decided to report the incident to the HLPD.
12
See TEX. PENAL CODE ANN. § 22.041.
8
According to Officer Newberry, she and Officer Bilbrey told the resident that
they would go by N.L.S.’s home and perform a welfare check and see who else was
at the home. Newberry and Bilbrey arrived at N.L.S.’s home, located in Holiday
Lakes, at about 5:20 p.m. Newberry noticed “a lot of garbage and shoes and many
more random objects all over the front yard and porch area of the home.” And when
Newberry and Bilbrey went to the front door of the home, “there was a very strong
smell of ammonia,” which concerned the officers. Although the screen door to the
home was closed, the main front door to the home was open. Bilbrey knocked on
the door, and N.L.S. came and opened the screen door for the officers. When the
officers asked N.L.S. if anyone was home with him, he replied, “No, my mom is not
home right now, but I have her cell[ular] [tele]phone.” (Internal quotations omitted.)
Newberry and Bilbrey then yelled into the home, “Holiday Lakes Police
Department, is anyone in the home?” (Internal quotations omitted.) And N.L.S.
kept repeating that “no one was [t]here.” After Bilbrey entered the home, she
“looked in the rooms to confirm that no one was there.”
Officer Newberry further explained that the bedroom door in the home was
locked, so Officer Bilbrey knocked on the door and yelled, “Holiday Lakes Police is
anyone home?” But no one responded. Bilbrey and N.L.S. sat on the front porch of
the home, while Newberry stepped away to call DFPS. Newberry was instructed to
bring N.L.S to the HLPD station with the officers. At about 5:44 p.m., Newberry
9
and Bilbrey left the home with N.L.S. and brought N.L.S. to the HLPD station, where
they arrived at 5:47 p.m. Newberry left Bilbrey and N.L.S. at the station and went
to pick up food for N.L.S. because he stated that he was hungry and that he had not
eaten anything that day. Newberry returned to the HLPD station with food, and a
DFPS investigator Mendoza arrived at the station at about 6:30 p.m.
The narrative portion of the incident report further notes that at about
7:00 p.m., Officer Newberry returned to N.L.S.’s home “to see if anyone showed up
looking for him,” but no one was there. Newberry then went back to the HLPD
station, and at 7:24 p.m., law enforcement officers “received a message that a gray
[car had been] seen in the driveway of [the] home.” This prompted Newberry and
Officer Bilbrey to return to the home, and when they did, they saw a gray car parked
in the driveway. The officers approached the home and knocked on the front door.
A woman, who identified herself as “Frankie,” answered the door, and the officers
asked Frankie if mother was home. Frankie got mother out of a room in the home
and told her that “the cops [were] [t]here for [her].” Mother then came out to the
front porch holding an infant in her arms. Newberry asked mother if she knew where
N.L.S. was, and mother responded that he was “[d]own the road at a friend’s house.”
(Internal quotations omitted.) Newberry asked mother when she last saw N.L.S.,
and she stated that she had seen him that morning, but she was not sure of the exact
time. Mother also told Newberry that she had been at the home all day. Newberry
10
then told mother that N.L.S. was at the HLPD station, he was speaking to a “social
worker,” and mother needed to come to the station. Mother replied that she would
meet the law enforcement officers at the station.
According to Officer Newberry, she and Officer Bilbrey arrived back at the
HLPD station at about 7:45 p.m. They told the DFPS worker that mother was on
her way to the station. When mother had not arrived at HPLD station by 8:00 p.m.,
Newberry went back to N.L.S.’s home and found mother outside. Newberry told
mother that she needed to come to the HLPD station right then and that Newberry
would follow her to the station to make sure that mother “got there ok.” When
mother arrived at the HLPD station, she spoke with DFPS investigator Mendoza.
After Mendoza spoke with mother, she informed Newberry and Bilbrey that
mother’s infant would need to be removed from the home. At about 9:56 p.m.,
Bilbrey arrived at N.L.S.’s home to pick up E.J.C., who was two-months old at the
time. At about 11:05 p.m., Mendoza took the children “into legal [DFPS] custody.”
Attached to the HLPD incident report is a voluntary statement from the
Holiday Lakes resident who contacted law enforcement officers about N.L.S. on
August 16, 2021. In her voluntary statement, the resident states that N.L.S. was
five-years old and had been at her home “all day” for the past four days. She was
concerned about N.L.S. because he had been at her house “so often [and] for so long
[and] . . . mother never came around.” The resident had “never met” mother.
11
Further, on August 16, 2021, N.L.S. came to the resident’s home at 8:00 a.m.
and asked her “if he could live with [her] because . . . mother [had] kicked him out
because he was filling up his fish tank.”13 N.L.S. “got teary eyed,” and the resident
let him into her house and fed him. At about 2:00 p.m., the resident told N.L.S. “to
go home,” but he came back less than fifteen minutes later and said that mother had
“kicked him out again.” Later, when the resident had to leave her home, she asked
N.L.S. if she could “drop[] him off at home” and he told her that “he was going to
get a spanking from” mother. When the resident drove by N.L.S.’s home at about
5:00 p.m., she saw him sitting on the front porch. The resident noted that on August
16, 2021, N.L.S. was wearing shoes, but on the other days that he was at her home,
he showed up barefoot, hungry, and wearing the same clothes.
DFPS Investigator Mendoza
Heather Mendoza, a former DFPS investigator, testified that she went to the
HLPD station on August 16, 2021 in response to a call involving allegations of
negligent supervision of N.L.S. According to Mendoza, one of mother’s neighbors
had called law enforcement officers because she believed that N.L.S. was home
13
Mother, during her testimony, acknowledged that N.L.S. had a fish tank but stated
that he did not have a fish in the tank. Further, according to mother, she sent N.L.S.
down to the neighbor’s home on the morning of August 16, 2021 so that he could
get his shoes, which he had left there. Mother denied kicking N.L.S. out of the
house.
12
alone. Law enforcement officers then went out to N.L.S.’s home and did not find
any adults in the home with N.L.S.
Mendoza explained that she arrived at the HLPD station around 6:00 p.m. or
6:30 p.m. and she spoke to N.L.S. According to Mendoza, she was at the HLPD
station for several hours before mother arrived. When Mendoza eventually spoke to
mother at the HLPD station, she expressed DFPS’s concern that N.L.S. “had been
left unattended for several hours” when he was only five-years old. Mendoza told
mother that it appeared that mother was not able to provide adequate supervision for
N.L.S. Mother reported to Mendoza that she had been living in her home in Holiday
Lakes for only a few weeks.
Mother also told Mendoza that she had woken up early on the morning of
August 16, 2021 with E.J.C. Between 12:00 p.m. and 2:00 p.m., N.L.S. went “to go
play with some friends.” Mother laid down to take a nap with E.J.C. sometime
between 12:00 p.m. and 2:00 p.m., and she stayed asleep until law enforcement
officers found her after 7:00 p.m. According to mother, she was at home asleep
when law enforcement officers came by around 5:00 p.m. on August 16, 2021.
Mother stated that “Frankie” “had been in the home,” but “she had [gone] to town
to pay a bill.”
13
As to E.J.C., Mendoza noted that the child was “very thin” and had “a severe
diaper rash.” Mother told Mendoza that she had “purchased ointment to be us[ed]”
for the diaper rash.
According to Mendoza, DFPS was concerned about possible narcotics-use by
mother, and mother participated in narcotics-use testing on August 20, 2021, shortly
after the children were removed from her care. Mother disclosed to Mendoza that
she had used methamphetamines in the past. But mother stated that she had stopped
using narcotics “cold turkey.”
Mendoza also testified that N.L.S. and E.J.C. were ultimately removed from
mother’s care on August 16, 2021 because they were “both of a vulnerable age” and
were “not able to self-protect or even understand if they were in harm’s way.” And
DFPS “believed [that mother] lacked the ability to supervise [the] children properly
at th[e] time.” Mother reported to Mendoza that father was incarcerated, but she did
not know where. Mother confirmed that father was in fact N.L.S.’s biological father.
DFPS Caseworker West
DFPS caseworker Trisha West testified that the children were placed together
in the same foster home, but the foster home was not an adoptive home. The children
appeared to be bonded to one another. West described N.L.S. as having “a lot of
energy” and personality.
14
As to mother, West stated that she had created a Family Service Plan (“FSP”)
for mother in September 2021, after the children were removed from mother’s care.
Mother’s FSP instructed her to complete the requirements of her FSP by August 31,
2022. According to West, mother’s FSP required her to participate in individual
therapy and random narcotics-use testing. Mother was also required to attend all
court hearings and permanency planning meetings as well as supervised weekly
visitation with the children. And she was required to remain “drug and alcohol free”
and complete a psychological evaluation and follow any recommendations from the
evaluation. Mother was also supposed to participate in substance-abuse counseling,
complete a “drug and alcohol assessment,” and maintain a safe and stable home.
West explained that mother completed her psychological evaluation and a
“drug and alcohol assessment” in September 2021. Mother attended thirteen out of
the fifteen required substance-abuse-counseling sessions, but mother stopped
attending substance-abuse counseling in July 2022 about six months before trial.14
Mother failed to complete her substance-abuse counseling, and she did not give West
a certificate of compliance showing that she had successfully completed
substance-abuse counseling. West further testified that mother attended some
individual therapy sessions—about nine—but she stopped attending individual
14
Trial in this case took place in February 2023.
15
therapy in September 2022. Mother did not give West a certificate of completion
showing that she had successfully completed individual therapy.
As to narcotics-use testing, West testified that mother was required to
participate in random narcotics-use testing whenever it was requested by DFPS.
Usually, DFPS asked mother to submit to narcotics-use testing twice a month, but
mother rarely participated. According to West, mother submitted to one
narcotics-use test during the entire pendency of the case. Mother would sometimes
tell West that she was going to go get tested but would then fail to do so. Mother
had been asked to submit to twenty-four narcotics-use tests during the pendency of
the case.15
As to mother living situation, West testified that when the children entered
DFPS’s care, mother was living in a trailer home with “Frankie.” Then, after the
children were removed from mother’s care, mother and E.J.C.’s father16 moved into
15
West stated that, during the pendency of the case, mother told West that she had
been submitting to the required narcotics-use tests but “they had her name and
information wrong in the system,” which was why West “could not pull [anything]
up” showing that mother had been submitted to testing. To fix that situation, West,
over the course of several months, tried to meet mother at a narcotics-use testing
facility to “rectify th[e] situation.” West was finally able to meet mother at a
narcotics-use testing facility in July 2022, and “[t]he facility [told West] that
[mother’s] information was correct in the system, and they confirmed that she had
not been [tested] since August . . . 2021.”
16
West testified that E.J.C.’s father was given an FSP, which required him to, among
other things, maintain a safe and stable home, participate in random narcotics-use
testing, complete a psychological evaluation, and attend all supervised visitation
with E.J.C. and all court hearings and permanency planning meetings. E.J.C.’s
father did not maintain safe and stable home throughout the pendency of the case or
16
a home together. After that, mother “went to jail,” and once she was released, mother
“mov[ed] from friend to friend.”17 Then, mother began living with E.J.C.’s father
and his mother. But, at the time of trial, mother was living in a one-bedroom
apartment with E.J.C.’s father. West stated that she had made attempts to visit
mother in her various homes throughout the pendency of the case, but she had not
been able to do so. As to mother’s most recent home, West stated that she had “made
a couple of appointments” with mother to see the apartment that mother was living
in with E.J.C.’s father, but the appointments “fell through.”
West further stated that mother had attended most of her weekly supervised
visits with the children, and she had been “mostly compliant” with that requirement
of her FSP. Mother brought food and toys to the visits, and she sometimes brought
clothing. Mother engaged with the children at her visits; she played with them and
did not act inappropriately. Mother did not attend visits with the children while she
was “in jail.” West acknowledged that the children “adore[d]” mother.
According to West, mother had also attended court hearings and participated
in “group conference meetings” with DFPS, as required by her FSP. Although
mother provided West with the name of one potential placement for the children,
submit to any narcotics-use testing. E.J.C.’s father failed to complete most, if not
all, of the requirements of his FSP. West also noted that E.J.C.’s father was arrested
during the pendency of the case on “a theft charge.”
17
According to West, mother told her that “she was living from place to place with
friends.”
17
West left “multiple messages for” the placement, but she “never heard back.” West
asked mother at least seven or eight times for the name of a potential placement for
the children.
West also testified that mother was arrested during the pendency of the case
and was in “jail” from April 29, 2022 until June 4, 2022. At the time of trial, mother
was “on probation.”
As to mother’s employment, West explained that mother told her that she
“worked cleaning beach houses,” but she was “paid cash.” Mother never provided
West any documentation to show that she was employed.
As to why West believed that termination of mother’s parental rights to the
children was appropriate, West testified that she was concerned about mother’s
ability to provide a safe and stable home for the children and about mother’s
narcotics use. West also expressed concern that mother had not completed the
requirements of her FSP, and it appeared that she was living with E.J.C.’s father.
Mother’s living arrangement with E.J.C.’s father concerned West because he had
not completed the requirements of his FSP and he had not participated in any
narcotics-use testing, so DFPS had no way of knowing whether E.J.C.’s father was
sober.
As to father, West testified that she created a FSP for father in September
2021, but it did not contain any requirements for father to complete. According to
18
West, at the time N.L.S. entered DFPS’s care, father was incarcerated, and he had
remained incarcerated during the pendency of the case. Father was set to be released
from confinement in 2025. West visited father while he was incarcerated, and he
gave her the names of his sister and his girlfriend as potential placements for N.L.S.,
but he did not have contact information for either of them. According to West, father
was not a suitable placement for N.L.S. at the time of trial because he was
incarcerated.
West also testified that when she visited father while he was incarcerated, he
told her that mother was “not a good mother” and “she was never home.” And in
the past, when they briefly lived together for two months in 2018, father had been
“the one taking care of” N.L.S.
Dr. Stadler
Dr. Jenny Stadler, a clinical psychologist who conducted mother’s
psychological evaluation, testified that she met with mother on October 9, 2021 for
about three hours. Mother told Dr. Stadler that N.L.S. had been taken from her home
by law enforcement while she was asleep in the home with E.J.C., who was about
two-months old at the time. Mother indicated that she was exhausted because she
had been awake the night before with E.J.C. According to mother, she laid down
about 4:30 p.m. or 5:00 p.m., and she was asleep in the bedroom of the home when
law enforcement officers performed the welfare check. Mother responded that
19
N.L.S. “had been spending time with the neighborhood children” on the day that law
enforcement officers came to her home. Mother and the children had only been
living in the neighborhood for about a week before the incident on August 16, 2021.
Mother also told Dr. Stadler that she had taken a narcotics-use test and had
“failed it for meth, methamphetamines, and methadone.” Additionally, mother
referenced a text message she had sent “about selling drugs” because “she was
confused” and “didn’t think that offering to sell [m]ethadone was illegal.” Mother
told Dr. Stadler that in the past she had used marijuana, methamphetamine, cocaine,
alcohol, and ecstasy. According to mother, she began using marijuana and
methamphetamines when she was twelve years old. She started drinking alcohol at
fourteen or fifteen years old, and she used “acid once in [ninth] grade.” Mother used
opioids when she was about twenty-five or twenty-six years old. Mother denied
using “[a]ny substances” at the time of her meeting with Dr. Stadler.
When Dr. Stadler asked mother whether she had ever been involved in a
physical altercation, mother said that she had been involved in physical altercations
as a kid and as an adult. The last physical altercation mother had was with the
girlfriend or ex-girlfriend of E.J.C.’s father. Mother did not tell Dr. Stadler when
the physical altercation took place. Mother also indicated that she was involved in
another physical alteration in 2014.
20
Mother
Mother testified that N.L.S. and E.J.C. were her children. Mother explained
that on August 16, 2021, the date the children were removed from her care, mother
was in the bedroom in her trailer home asleep with E.J.C., who was two-months old
at the time. According to mother, she and E.J.C. went to sleep about 4:30 p.m. And
when law enforcement officers knocked on the door of the home on August 16, 2021,
she did not hear them because she was in the bedroom with the door shut. Mother
stated that she had been “up all night” with the children and she was exhausted.
According to mother, the door to her bedroom was not locked. Mother woke up
about 7:00 p.m. or 7:30 p.m., when “Frankie” told her that law enforcement officers
wanted to speak with her.
When mother spoke to law enforcement officers on August 16, 2021, she told
them that N.L.S. was playing at a neighbor’s house because she assumed that was
where he was because he was not in the house. At trial, mother acknowledged that
she had not met the parents of the children N.L.S. had been playing with in the
neighborhood, and she would not watch N.L.S. when he went to go play with other
kids. However, according to mother, N.L.S. was not allowed to go outside of the
trailer home without telling mother, and he had to stay in the yard unless he asked
to leave. Yet mother agreed that it was possible for N.L.S. to leave the trailer house
21
on his own. Mother stated that she did not kick N.L.S. out of the house on August
16, 2021.
As to her housing at the time of trial, mother explained that she lived in a
one-bedroom apartment at the Cranbrook Apartment complex with E.J.C.’s father.
She had been living there since July 7, 2022. According to mother, E.J.C.’s father
went “back and forth between” her apartment and the apartment that his mother was
living in, which was in the same apartment complex. Mother further testified that
the mother of E.J.C.’s father was being evicted from her apartment, so E.J.C.’s father
would then stay with mother. However, she noted that E.J.C.’s father “said that if it
was a problem [for] him being in [mother’s home] due to the case,” then “he would
go elsewhere.” Mother stated that there was “no lease” for her apartment, and
E.J.C.’s father “d[id] the maintenance” for the apartment complex. Because E.J.C.’s
father “d[id] the maintenance,” mother did not have to pay rent for the apartment,
but she was responsible for paying for electricity. According to mother, she was not
in a relationship with E.J.C.’s father, but she did not feel that he was a danger to the
children. Mother last saw E.J.C.’s father about two weeks before trial.
Mother acknowledged that, during the pendency of the case, she had four
different residences. After the children were removed from her care, mother
continued living at the trailer home in Holiday Lakes for about a month. Mother
stated that the trailer home had a porch, a living room, a kitchen, a bedroom, and a
22
bathroom. Mother did not own the trailer home but was renting it. According to
mother, she had food and clothes in the home for the children as well as diapers for
E.J.C.
Mother next moved into a friend’s home until July 7, 2022. She did not have
a lease at that time, but she paid rent. Mother then moved to the Cranbrook
Apartment complex after that. She had lived in two different apartments in that
complex since July 7, 2022. Mother also noted that after she was released from jail,
but before an apartment was available at the Cranbrook Apartment complex, she
stayed with “two different friends.”
According to mother, DFPS caseworker West had requested to see the places
where mother had been living during the pendency of the case. Although
appointments were set up a couple of times, they ended up being canceled either by
West or mother. West had not seen mother’s current apartment, but she had asked
to see it.
As to her employment status, mother testified that at the time of trial she did
not have a job. She had worked at a cleaning service from February 2022 until
January 2023.
Mother also testified that she received an FSP from DFPS and DFPS
caseworker West went over the FSP with her. Mother stated that she participated in
the substance-abuse assessment, as required by her FSP, and she participated in
23
substance-abuse counseling from September 2021 until April 2022, when she “went
to jail.” After being released, she reengaged in substance-abuse counseling for about
two months, but she did not receive a certificate of completion for substance-abuse
counseling. Mother noted that she had not received a certificate of completion from
individual therapy.
Mother further explained that during the pendency of the case, she was
required to participate in narcotics-use testing, according to her FSP. Mother agreed
that she had been requested to submit to narcotics-use testing about twenty-four
times during the case. According to mother, she had participated in narcotics-use
testing four or five times, and one of those times was at the beginning of the case
after the children were removed from her care. Mother also stated that she submitted
to narcotics-use testing after she was released from jail around June 2022. And
although mother testified that she participated in other narcotics-use testing between
August 2021 and June 2022, but she could not recall when she had done so.
However, mother acknowledged that she had been asked to submit to narcotics-use
testing in January 2023, December 2022, November 2022, and October 2022 and
she did not participate in testing when requested.
According to mother, at the time of trial, she did not have a “substance abuse
issue,” and she was not using narcotics when the children were removed from her
care on August 16, 2021. Although mother did acknowledge that her narcotics-use
24
test from August 20, 2021 showed that she tested positive for amphetamines,
methamphetamines, and methadone, but she stated that she had not used narcotics
since January 26, 2015.
Additionally, at trial, mother acknowledged that she had a criminal history
from “before [the children] w[ere] born.” According to mother, she was convicted
of four counts of the offense of forgery of a financial instrument in 2012. And during
the pendency of this case, she had pleaded guilty to the offense of attempted
abandonment or endangerment of a child, related to N.L.S.18 At the time of trial,
mother was on community supervision related to the offense of attempted
abandonment or endangerment of a child.
As to the children, mother noted that N.L.S. called E.J.C.’s father “dad.” And
when the children were removed from mother’s care, E.J.C. was not sick and was
not underweight. Mother explained that N.L.S. was not yet in school at the time the
children were removed from her care because N.L.S. had “missed the cutoff” date
to start kindergarten the previous year based on his birthday. Before E.J.C. was born,
mother would make N.L.S. breakfast, and N.L.S. would help her make lunch and
dinner. And every other weekend, she would try to go somewhere and do something
special with N.L.S.
18
See TEX. PENAL CODE ANN. §§ 15.01 (criminal attempt), 22.041 (offense of
abandoning or endangering child).
25
Mother also testified that she had attended visits with the children during the
pendency of the case. At visits, she would play games with them or bring arts and
crafts to do or toys. She was never reprimanded by DFPS for bringing the children
inappropriate food or for ignoring the children during visits. Mother admitted that
she had missed a recent visit with the children.
Mother stated that she was requesting that the children be returned to her care.
She stated that she could provide them with food and a home. She could meet their
medical needs. She wanted the children to graduate high school and go to college,
and she wanted them to be happy, healthy, and succeed at anything that they wanted
to do. Mother did not believe that she had neglected the children. Mother admitted
that she did not have a support system if the children were returned to her care.
Mother’s FSP
The trial court admitted into evidence a copy of mother’s FSP from September
2021. The FSP lists “[f]amily [r]eunification” as DFPS’s primary permanency goal
as well as “[f]amily [r]elative/[f]ictive [k]in [c]onservatorship” as a concurrent
permanency goal. As to “hopes and dreams” for the children, the FSP states “[f]or
the children to have a safe and stable home environment free of abuse and neglect.”
As to N.L.S., the FSP states that he was a healthy child. He had just started
kindergarten at the time the FSP was created, and he was doing well in school.
N.L.S. had not had any behavioral or emotional issues since entering DFPS’s care.
26
N.L.S. appeared to have a close relationship with mother and “Frankie,” who had
lived with him. N.L.S. also “fit[] in well with his foster family” and had a “positive
relationship[] with his foster parents.” N.L.S got along well with other children.
As to E.J.C., the FSP states that she was healthy, but she was under weight for
her age. At the time the FSP was created, she appeared to be “developmentally on
target.” E.J.C. was “an infant with no behavioral issues.” She appeared to be bonded
with mother. She was comfortable in her placement with her foster parents.
As to mother, the FSP states that mother reported that she “work[ed] as a home
health provider for an elderly individual with health issues.” Mother relied on the
mother of E.J.C.’s father and “Frankie,” who was a cousin of E.J.C.’s father, for
support, although mother reported that Frankie was moving away. Mother did not
report any issues with her cognitive abilities or any mental health diagnoses. She
stated that she had “anger issues” as a teenager, and she had “dealt with depression
when she lost a pregnancy in 2008.” Mother acknowledged that she had used muscle
relaxers and pain pills in 2008, after her pregnancy loss. Mother also reported that
she had used methamphetamines in the past, but according to mother, she had not
used narcotics since January 2015 when she found out that she was pregnant with
N.L.S. Mother reported that she was “arrested for assault in the past but the charges
were dropped.” N.L.S. reported that mother and E.J.C.’s father would “fight with
their hands.” (Internal quotations omitted.)
27
In discussing what concerns that mother needed to address, the FSP notes that
N.L.S. lacked supervision while in mother’s care, and mother had tested positive for
methamphetamines, amphetamines, and methadone shortly after the children were
removed for her care. According to the FSP, mother had allowed N.L.S. to wander
his neighborhood “for days at a time,” which demonstrated that she had “issues with
parenting skills.”
Mother’s FSP required her to remain free of alcohol and narcotics and
maintain a safe and stable home that was free from criminal activity, domestic
violence, alcohol and narcotics, and abuse and neglect. Mother’s home needed to
have fully functioning electricity, water, and gas as well as be child friendly and free
of any safety hazards. If mother’s home had other individuals living in it, those
persons needed to not have a history with DFPS, a history of narcotics use, or a
criminal history involving certain offenses. Mother needed to notify the DFPS
caseworker within forty-eight hours of any changes to her home address or telephone
number, and she was required to allow DFPS to make announced and unannounced
visits to her home.
Further, mother was to complete a psychological evaluation and
substance-abuse assessment and follow any recommendations. Mother was also
required to engage in individual therapy and follow any recommendations made by
the therapist regarding further treatment. And mother was required to submit to
28
random narcotics-use testing.19 Additionally, she needed to attend all court hearings
and permanency planning meetings, and she was required to attend all supervised
visits with the children.
Narcotics-Use Testing Records
The trial court admitted into evidence a copy of mother’s narcotics-use testing
results. The testing results show that on August 20, 2021, mother, by urinalysis,
tested positive for amphetamine, methamphetamine, and methadone. Also, on
August 20, 2021, mother tested positive for amphetamine and methamphetamine by
hair-follicle testing.
Father
Father testified that he was N.L.S.’s biological father. He participated in DNA
testing during the pendency of the case and the results showed that he was N.L.S.’s
biological father.20 Father was requesting that the trial court adjudicate him as the
father of N.L.S.
Father further testified that, at the time of trial, he was incarcerated and living
in the McConnell Unit in Beeville, Texas. Father had been in confined since May
19
Mother’s FSP informed her that if she failed to report to a required narcotics-use
test, the test would be deemed a positive testing result.
20
The trial court admitted into evidence a copy of a DNA Test Report showing that
father was N.L.S.’s biological father. The report was signed on December 5,
2022—less than three months before trial began. The trial court also admitted into
evidence a copy of a DNA Test Report showing that E.J.C.’s father was not N.L.S.’s
biological father. That report was signed on July 25, 2022.
29
11, 2020 following his arrest. In February 2021, father was convicted of the offenses
of felon in possession of a firearm,21 possession of a prohibited weapon,22 evading
arrest or detention,23 assault of a family member,24 and possession of a controlled
substance, namely methamphetamine.25 Father “signed . . . a five-year plea” bargain
agreement related to those offenses. Father’s discharge date is in May 2025.26 At
the time of trial, he did not have a possible placement for N.L.S., and he could not
provide a safe and stable home for N.L.S. because he was incarcerated.
Father also explained that in August 2021, when N.L.S. was removed from
mother’s care, he was incarcerated. Father’s last interaction with N.L.S. occurred
when N.L.S. was about three years old. Father noted that he was also incarcerated
when N.L.S. was born, so he did not “have much of a relationship with him.” But,
according to father, N.L.S. knew who he was, and he had visited N.L.S. “[q]uite a
few times.” Father acknowledged that he did not know what grade N.L.S. was in at
21
See TEX. PENAL CODE ANN. § 46.04.
22
See id. § 46.05.
23
See id. § 38.04.
24
See id. § 22.01. Mother was not the complainant of this offense.
25
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115. As to the
possession-of-a-controlled-substance offense, father stated that his counsel at the
time told him that there “was residue in a pipe” that was “in the back bed of [father’s]
truck.”
26
Father stated that he had a parole hearing scheduled for March 2023, and he had
“support letters . . . from the sheriff” because he was “a trustee” with the sheriff’s
department and worked as a welder.
30
school, did not know his favorite school subject, his favorite color, or his favorite
food. He did not know “a whole lot about” N.L.S.
Father also testified that he was arrested for the offense of “theft of a
firearm”27 in 2007, and he pleaded guilty to the offense. He was then placed on
community supervision. In 2009, he was convicted of the offense of assault 28 and
received “time served in county jail.” Further, in 2013, he was convicted of the
offenses of evading arrest or detention29 and unauthorized use of a motor vehicle.30
And in 2014, father pleaded guilty to the offense of burglary.31 In 2015, he pleaded
guilty to the offense of “credit card abuse.”32
As to his FSP, father testified that he received it, but it did not require him to
do anything. DFPS had “dropped off [some] packets” for him about two months
before trial began and he was “working on them,” but they were not required by his
FSP. When father met with the DFPS caseworker while incarcerated, he asked her
“for things that [he] could do.” The caseworker then sent him a “packet of parenting
papers and stuff to fill out,” and he had been “working on” that. Father was also
27
See TEX. PENAL CODE ANN. § 31.03.
28
See id. § 22.01.
29
See id. § 38.04.
30
See id. § 31.07.
31
See id. § 30.02.
32
See id. § 32.31.
31
attending GED classes, and he testified that would be starting narcotics anonymous
classes. And he worked with the sheriff’s department as a welder seven days a week.
Father had asked DFPS about “doing video visits” with N.L.S. while he was
incarcerated, but he had not received a response from DFPS. Father had not had any
conduct issues while he had been incarcerated.
As to his relationship with mother, father stated that he and mother had a
relationship in 2015 and 2019,33 but they did not live together during those times.
When father first met mother, mother lived with a friend in “nice house” with four
or five bedrooms. Father and mother were only “together” for “[a] few months” in
2015. Mother and N.L.S. then lived with father for a couple of months in 2018
before mother chose to move with N.L.S. to Angleton, Texas. After the move, father
visited N.L.S. on the weekends. Mother’s new home was clean. Father believed
that he last saw N.L.S. in 2019.
Father further testified that when he and mother lived together with N.L.S.,
mother was a good parent. She made N.L.S. dinner and gave him baths. She took
good care of N.L.S., and he was “in good health.” Mother took N.L.S. to doctor
appointments. Mother did not “lose track” of N.L.S. or fail to take care of him. She
was attentive to his needs, and father did not see anything that would cause him to
be concerned about mother’s parental abilities. Father and mother both took care of
33
Father stated that from 2017 to 2019, he and mother “talked.”
32
N.L.S. while they lived together, although father noted that he was working as a
mechanic at the time. When mother and N.L.S. moved out, father did not have any
concerns about mother parenting N.L.S. He did not think that she would be
neglectful or endanger the child. Father did not know that mother had a history with
DFPS when he let N.L.S. live with mother.
Father also noted that he and mother did not use narcotics together and he had
never assaulted mother. Father did not know that mother used narcotics. Father
stated that he had not provided financial support for N.L.S. since the child’s birth.
According to father, he had never spoken with DFPS caseworker West about
mother’s parental abilities.
Related to N.L.S. being removed from mother’s care, father stated that mother
told him that “she was in the [bed]room [of the home] asleep whenever [N.L.S.]
answered the door” and saw law enforcement officers. Father was concerned that
N.L.S. was in the care of DFPS. Father also noted that he did not believe it was a
good idea to leave a child home alone. Father had never been inside the trailer home
where N.L.S. was living at the time he was removed from mother’s care.
Before father’s most recent incarceration, he had been living in a home in
Bandera, Texas with his ex-girlfriend.
33
Father’s FSP
The trial court admitted into evidence a copy of father’s FSP from September
2021. As for the permanency goal for N.L.S., it lists “[f]amily [r]eunification” or
“[f]amily [r]elative/[f]ictive [k]in [c]onservatorship.” It lists the “hopes and dreams”
for N.L.S. as “a safe and stable home environment free from abuse and neglect.”
As to N.L.S., it states that there were no health concerns, and he had no
physical disability. N.L.S. was physically, cognitively, and emotionally on target
for his age. N.L.S. was in kindergarten at the time and was able to understand the
information that he was being taught. He had minimal behavioral issues. N.L.S.
appeared to be bonded with his foster parents and comfortable in his placement.
Although N.L.S. was “close” to mother, he did not have a relationship with father.
As to father, the FSP states that he was incarcerated and had a criminal history.
But his physical health was unknown, whether he had any struggles with his
cognitive or developmental abilities was unknown, and his mental health history was
unknown. The FSP does not list any requirements for father to complete to ensure
the return on N.L.S., other than to contact DFPS upon his release from confinement.
Father’s Criminal History
The trial court admitted into evidence of a copy of an indictment, dated June
20, 2019, which alleged that father, on or about May 14, 2019, “intentionally or
knowingly possess[ed] a controlled substance listed in Penalty Group One (1),
34
namely, methamphetamine[,] and the amount of said controlled substance was, by
aggregate weight, including any adulterants and dilutants, less than one (1) gram.”34
The indictment further alleged that, previously, on or about December 13, 2013,
father, in cause number 13CR2189, in the 10th District Court of Galveston County,
Texas, was convicted of the felony offense of evading arrest or detention with a
vehicle,35 and in cause number 13CR2190, in the 10th District Court of Galveston
County, father was convicted of the felony offense of unauthorized use of a vehicle.36
Further, on or about February 10, 2014, father, in cause number 67200, in the 23rd
District Court of Brazoria County, Texas, was convicted of the felony offense of
burglary.37 And father, on or about May 7, 2015, in cause number 15-DCR-068775,
in the 400th District Court of Fort Bend County, Texas, was convicted of the felony
offense of credit card abuse.38
The trial court also admitted into evidence a copy of father’s plea agreement
related to the May 14, 2019 possession-of-a-controlled-substance offense, which
shows that in exchange for father’s plea of guilty, the State waived the alleged
34
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115.
35
See TEX. PENAL CODE ANN. § 38.04.
36
See id. § 31.07.
37
See id. § 30.02.
38
See id. § 32.31.
35
enhancements and agreed to recommend that father’s punishment be assessed at 645
days confinement.
A judgment of conviction, signed on July 15, 2022, related to the May 14,
2019 possession-of-a-controlled-substance offense, a copy of which the trial court
admitted into evidence, shows that father pleaded guilty to the offense, and the trial
court, in accord with the agreed punishment recommendation from the State,
assessed father’s punishment at confinement for 645 days. Father received a jail
time credit of 631 days.
Additionally, the trial court admitted into evidence a copy of an indictment,
alleging that father, on or about November 26, 2011, “intentionally or knowingly
enter[ed] a building not then open to the public, owned by [the complainant], without
the effective consent of [the complainant], and therein attempted to commit or
committed theft.”39 Other documents40 admitted into evidence show that father,
with an agreed punishment recommendation from the State, pleaded guilty to the
offense of burglary, and the trial court deferred adjudication of father’s guilt and
placed him on community supervision for three years. The State, alleging that father
had violated the conditions of his community supervision, subsequently moved to
39
See id. § 30.02.
40
These documents include copies of an order of deferred adjudication signed on June
21, 2012, a “State Jail Felony Deferred Adjudication Supervision Order,” setting
the conditions of father’s community supervision, and a plea agreement between
father and the State related to the burglary offense.
36
adjudicate father’s guilt.41 Father then signed a plea agreement related to the State’s
motion to adjudicate his guilt, in which he agreed to plead true to certain allegations
in the State’s motion, in exchange for the State recommending that punishment be
assessed at confinement for eight months. A copy of the judgment adjudicating
guilt, which the trial court admitted into evidence, shows that in February 2014, the
trial court found the allegations true and assessed father’s punishment at
confinement for eight months, to run concurrently. Father received a jail time credit
of 182 days.
Further, the trial court admitted into evidence a copy an information, alleging
that father, on July 10, 2009, “intentionally, knowingly or recklessly cause[d] bodily
injury to another, namely, [the second complainant], a person with whom [appellant]
ha[d] . . . a dating relationship, by head butting [the second complainant] on her
forehead with his head and making her fall to the ground” and father “intentionally,
knowingly or recklessly cause[d] bodily injury to [the second complainant], a person
with whom [he] ha[d] . . . a dating relationship by choking her on the neck with his
hand.”42 A copy of the judgment, which the trial court admitted into evidence, states
that father pleaded guilty to the misdemeanor offense of assault, and the trial court
41
A copy of the State’s motion to adjudicate guilt, which was filed on August 12,
2013, was admitted into evidence at trial.
42
See id. § 22.01. The trial court also admitted into evidence a copy of the complaint
related to the assault offense.
37
assessed father’s punishment at confinement for three days in the county jail and a
fine of $300. Father received a “jail time credit” of fourteen days. The trial court
entered a finding that father had committed family violence.
The trial court also admitted into evidence a copy of an indictment, alleging
that father, on or about November 6, 2007, “intentionally or knowingly, unlawfully
appropriate[d] by acquiring or exercising control over property, namely, a firearm
owned by [the third complainant],” “without the effective consent of [the third]
[c]omplainant and with intent to deprive the [third] [c]omplainant of said
property.”43 A copy of father’s plea agreement, which was admitted into evidence,
shows that father agreed to plead guilty to the misdemeanor offense of theft of a
firearm, in exchange for the State recommending that his punishment be assessed at
confinement for 100 days in the county jail. The trial court admitted into evidence
a copy of a judgment, signed on December 5, 2008, showing that father pleaded
guilty to the misdemeanor offense of theft of a firearm and the trial court, in accord
with the agreed punishment recommendation from the State, assessed father’s
punishment at confinement in the county jail for 100 days. Father received a jail
time credit of 111 days.
43
See id. § 31.03.
38
Guardian Ad Litem for Children
Claudia Sullivan, the guardian ad litem for the children, testified that she
believed that the parental rights of mother and father should be terminated. As to
mother, Sullivan stated that mother’s parental rights to the children should be
terminated because she failed to comply with her FSP and failed to participate in
required narcotics-use testing during the pendency of the case. According to
Sullivan, mother only participated in two out of twenty-four required narcotics-use
tests, and she tested positive for methamphetamine. Sullivan also noted that mother,
at the time of trial, was “on probation” related to a misdemeanor offense, and she
was living with E.J.C.’s father44 “on an on-and-off basis,” which contributed to
Sullivan’s recommendation that mother’s parental rights to the children be
terminated.
As to father, Sullivan testified that he had not “had any interaction with”
N.L.S. Although father was incarcerated, he “still ha[d] the ability to write [N.L.S.],
to send little notes or to even make arrangements to have some type of
communication . . . with him.” Sullivan was concerned about father’s criminal
history and that N.L.S. had “no emotional connection” to father. N.L.S believed that
E.J.C.’s father was his father.
44
Sullivan noted that E.J.C.’s father had not completed any requirements of his FSP.
39
Sullivan further testified that it was in the children’s best interest to have a
safe and stable home. And the conduct of mother and father had “subjected the
children to a life of uncertainty and instability that[] [was] endangering their physical
and emotional well-being.” The children would be harmed by being “in a state of
flux” should they be returned to the care of mother or father because either parent
could be “going to . . . jail one day or the next.”
Sullivan also explained that E.J.C. was young, and “[t]he only people she[]
[had] ever known in her life that ha[d] given her stability [were her] foster parents,”
and she referred to them as “her parents.” E.J.C. was “very well-settled in” her foster
parents’ household. As to N.L.S., Sullivan noted that his fears about being placed
with mother were “magnified after he ha[d] been at a visit” with mother. However,
she testified that N.L.S. was also bonded with mother and that mother had visited
N.L.S. on a weekly basis throughout the pendency of the case, except for when she
was “in jail.”
According to Sullivan, “a family [had been] identified that [were] willing to
adopt [the children]” and that family “want[ed] to be made the placement[] for [the
children].” They had known the children for more than a year, and they would “have
the [children’s current foster] parents . . . close by, as they [were] all a tight-knit
family.” A background check had been performed related to the family interested
in adopting the children. And Sullivan had spoken to the family about their hopes
40
and dreams for the children, which factored into Sullivan’s decision to recommend
termination of the parental rights of mother and father.
Standard of Review
A parent’s right to “the companionship, care, custody, and management” of
her children is a constitutional interest “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted). The
United States Supreme Court has emphasized that “the interest of [a] parent[] in the
care, custody, and control of [her] children . . . is perhaps the oldest of the
fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville, 530
U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that “[t]his
natural parental right” is “essential,” “a basic civil right of man,” and “far more
precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
(internal quotations omitted). Consequently, “[w]e strictly construe involuntary
termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex.
2012).
Because termination of parental rights is “complete, final, irrevocable and
divests for all time that natural right . . . , the evidence in support of termination must
be clear and convincing before a court may involuntarily terminate a parent’s rights.”
Holick, 685 S.W.2d at 20. 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
41
as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.
§ 101.007; see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the
standard of proof is “clear and convincing evidence,” the Texas Supreme Court has
held that the traditional legal and factual standards of review are inadequate. In re
J.F.C., 96 S.W.3d at 264–68.
In conducting a legal-sufficiency review in a termination-of-parental-rights
case, we must determine whether the evidence, viewed in the light most favorable
to the finding, is such that the fact finder could reasonably have formed a firm belief
or conviction about the truth of the matter on which DFPS bore the burden of proof.
Id. at 266. In viewing the evidence in the light most favorable to the finding, we
“must assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so,” and we “should disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” In
re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). However,
this does not mean that we must disregard all evidence that does not support the
finding. In re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we
must also be mindful of any undisputed evidence contrary to the finding and consider
that evidence in our analysis. Id. If we determine that no reasonable trier of fact
could form a firm belief or conviction that the matter that must be proven is true, we
42
must hold the evidence to be legally insufficient and render judgment in favor of the
parent. Id.
In conducting a factual-sufficiency review in a termination-of-parental-rights
case, we must determine whether, considering the entire record, including evidence
both supporting and contradicting the finding, a fact finder reasonably could have
formed a firm conviction or belief about the truth of the matter on which DFPS bore
the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We should
consider whether the disputed evidence is such that a reasonable fact finder could
not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96
S.W.3d at 266. “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant
that a factfinder could not reasonably have formed a firm belief or conviction, then
the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (internal quotations omitted).
Termination of Mother’s Parental Rights
In her first and second issues, mother argues that the trial court erred in
terminating her parental rights to the children because the evidence is legally and
factually insufficient to support the trial court’s findings that she knowingly placed,
or knowingly allowed the children to remain, in conditions or surroundings which
endangered their physical or emotional well-being, she engaged, or knowingly
43
placed the children with persons who engaged, in conduct that endangered their
physical or emotional well-being, she failed to comply with the provisions of a court
order that specifically established the actions necessary for her to obtain the return
of the children, and termination of her parental rights was in the best interest of the
children. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (b)(2). In her
third issue, mother argues that the trial court erred in appointing DFPS as the sole
managing conservator of the children because a parent should be named the
children’s managing conservator where the evidence does not show that the
appointment would significantly impair the children’s physical health or emotional
development.
In order to terminate the parent-child relationship, DFPS must establish, by
clear and convincing evidence, one or more of the acts or omissions enumerated in
Texas Family Code section 161.001(b)(1) and that termination of parental rights is
in the best interest of the children. See id. § 161.001(b). Both elements must be
established, and termination may not be based solely on the best interest of the
children as determined by the trier of fact. See id.; Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Notably though, “[o]nly 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[ren’s] best
interest.” In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).
44
A. Endangerment
In a portion of her first issue, mother argues that the evidence is legally and
factually insufficient to support the trial court’s findings that she knowingly placed,
or knowingly allowed the children to remain, in conditions or surroundings which
endangered their physical or emotional well-being or she engaged, or knowingly
placed the children with persons who engaged, in conduct that endangered their
physical or emotional well-being because there was “no evidence that mother used
narcotics in the presence of the children” or that narcotics were “accessible to the
children”; there were not “issues with the [trailer] home” where the children were
living; there was no evidence “that E.J.C. was endangered by . . . mother”; the
children were healthy and developmentally on target at the time they were removed
from mother’s care; the only evidence presented as to narcotics use were the results
of one narcotics-use test and mother’s failure to submit to narcotics-use testing; and
mother was only convicted of a misdemeanor offense during the pendency of the
case. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E).
A trial court may order termination of the parent-child relationship if it finds
by clear and convincing evidence that a parent has “knowingly placed or knowingly
allowed the child[ren] to remain in conditions or surroundings which endanger[ed]
the[ir] physical or emotional well-being.” Id. § 161.001(b)(1)(D). A trial court may
also order termination of the parent-child relationship if it finds by clear and
45
convincing evidence that the parent has “engaged in conduct or knowingly placed
the child[ren] with persons who engaged in conduct which endanger[ed] the[ir]
physical or emotional well-being.” Id. § 161.001(b)(1)(E). Because the evidence
related to Texas Family Code sections 161.001(b)(1)(D) and (E) are interrelated, we
consolidate our examination. See In re L.M.N., No. 01-18-00413-CV, 2018 WL
5831672, at *12 n.38 (Tex. App.—Houston [1st Dist.] Nov. 8, 2018, pet. denied)
(mem. op.); In re J.T.G., 121 S.W.3d 117, 126 (Tex. App.—Fort Worth 2003, no
pet.).
Both Texas Family Code sections 161.001(b)(1)(D) and (E) require proof of
endangerment. To “endanger” means to expose the children to loss or injury or to
jeopardize their emotional or physical health. Boyd, 727 S.W.2d at 533 (internal
quotations omitted); see also Walker v. Tex. Dep’t of Fam. & Protective Servs., 312
S.W.3d 608, 616 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). The children
are endangered when the environment creates a potential for danger that the parent
is aware of but consciously disregards. J.S. v. Tex. Dep’t of Fam. & Protective
Servs., 511 S.W.3d 145, 159 (Tex. App.—El Paso 2014, no pet.); In re S.M.L., 171
S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Endangerment
encompasses “more than a threat of metaphysical injury or the possible ill effects of
a less-than-ideal family environment.” Boyd, 727 S.W.2d at 533. However, it is not
46
necessary that the endangering conduct be directed at the children or that the children
actually suffer injury. Id.
While Texas Family Code sections 161.001(b)(1)(D) and (E) both focus on
endangerment, they differ regarding the source of the physical or emotional
endangerment to the children. See In re B.S.T., 977 S.W.2d 481, 484 (Tex. App.—
Houston [14th Dist.] 1998, no pet.). For instance, Texas Family Code section
161.001(b)(1)(D) focuses on the children’s surroundings and environment and
requires a showing that the environment in which the children were placed
endangered their physical or emotional health. Doyle v. Tex. Dep’t of Protective &
Regulatory Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet. denied); see
also In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.);
In re S.M.L., 171 S.W.3d at 477. “Environment” refers to the acceptability of the
children’s living conditions as well as the conduct of a parent or other person in the
home because the conduct of a parent or other person can create an environment that
endangers the children’s physical or emotional well-being. In re S.R., 452 S.W.3d
351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (internal quotations
omitted); see also In re I.L.L., No. 14-09-00693-CV, 2010 WL 4217083, at *6 (Tex.
App.—Houston [14th Dist.] Oct. 26, 2010, no pet.) (mem. op.); In re B.R., 822
S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied) (“It is illogical to reason that
inappropriate, debauching, unlawful, or unnatural conduct of persons who live in the
47
home of a child, or with whom a child is compelled to associate on a regular basis
in his home, are not inherently a part of the ‘conditions and surroundings’ of
th[e] . . . home . . . .”). Thus, although Texas Family Code section 161.001(b)(1)(D)
focuses on the children’s living environment, parental conduct may produce an
endangering environment. See In re J.H., No. 01-22-00629-CV, 2023 WL 2169952,
at *12 (Tex. App.—Houston [1st Dist.] Feb. 23, 2023, pet. denied) (mem. op.).
The relevant time frame for establishing that a parent knowingly placed, or
allowed the children to remain, in conditions or surroundings which endangered their
physical or emotional well-being is prior to the children’s removal. In re O.R.F.,
417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied); In re J.R., 171
S.W.3d 558, 569 (Tex. App.—Houston [14th Dist.] 2005, no pet.). A fact finder
may infer from a parent’s past conduct endangering the well-being of the children
that similar conduct will recur in the future. A.S. v. Tex. Dep’t of Fam. & Protective
Servs., 394 S.W.3d 703, 712 (Tex. App.—El Paso 2012, no pet.); see also In re D.S.,
333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.) (trier of fact may measure
parent’s future conduct by his past conduct). Notably, DFPS does not need to
establish that a parent intended to endanger the children to support termination based
on endangerment. In re J.H., 2023 WL 2169952, at *13. Texas Family Code section
161.001(b)(1)(D) permits termination based upon a single act or omission. Jordan
v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
48
Under Texas Family Code section 161.001(b)(1)(E), the relevant inquiry is
whether evidence exists that the endangerment of the children’s physical or
emotional well-being was the direct result of a parent’s conduct, including acts,
omissions, or failures to act. In re J.T.G., 121 S.W.3d at 125; see also In re S.M.L.,
171 S.W.3d at 477. It is not necessary to establish that a parent intended to endanger
the children to support termination of the parent-child relationship. See In re M.C.,
917 S.W.2d 268, 270 (Tex. 1996). However, termination under section
161.001(b)(1)(E) requires “more than a single act or omission; . . . a voluntary,
deliberate, and conscious course of conduct by the parent” is required. In re K.P.,
498 S.W.3d 157, 171 (Tex. App.—Houston [1st Dist.] 2016, pet. denied); see also
In re J.T.G., 121 S.W.3d at 125. The specific danger to the children’s well-being
may be inferred from parental misconduct standing alone, even if the conduct is not
directed at the children and they suffer no actual injury. See Boyd, 727 S.W.2d at
533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
Courts may consider parental conduct that did not occur in the children’s presence.
In re A.A.M., 464 S.W.3d 421, 426 (Tex. App.—Houston [1st Dist.] 2015, no pet.);
Walker, 312 S.W.3d at 617.
Officer Bilbrey testified that on August 16, 2021, she went to mother’s trailer
home about 5:20 p.m. in response to a call for a welfare check. Bilbrey did not see
any cars in the driveway of the home, and when she knocked on the front door,
49
N.L.S., who was five years old at the time, answered. Bilbrey asked N.L.S. if mother
was home, and N.L.S. told her that he was “home alone” and “mother [was] not
[t]here.” N.L.S. also told Bilbrey that he did not know where mother was. Bilbrey
then entered the home and yelled, “Holiday Lakes Police Department,” but no one
responded. (Internal quotations omitted.) Bilbrey continued shouting and banged
on the bedroom door in the home, which was locked. As she banged on the bedroom
door, she yelled, “Holiday Lakes Police Department. Is anybody home?” (Internal
quotations omitted.) No one responded. Bilbrey was in N.L.S.’s home for five to
ten minutes knocking on doors and yelling, but she never received a reply.
According to Officer Bilbrey, she stayed at the trailer home with N.L.S. for
about fifteen to thirty minutes. Around 5:45 p.m., she left the home with N.L.S.,
and brought him to the HLPD station, which was about three blocks away from the
trailer home. During the entire time that Bilbrey was at the trailer home on August
16, 2021, no adult was present with N.L.S.
Officer Bilbrey further explained that mother did not come looking for N.L.S.
at the HLPD station. Around 7:00 p.m., another law enforcement officer went back
to the trailer home. Mother was finally located around 7:45 p.m., and mother arrived
at the HLPD station around 8:00 p.m. that night. Although mother told Bilbrey that
she had been sleeping in the bedroom when Bilbrey first came to the trailer home
around 5:20 p.m. that day, Bilbrey testified that the door to the bedroom was locked
50
and she did a “cop knock” on the bedroom door loudly. She did not hear a response
from anyone on the other side of the bedroom door, where mother was purportedly
sleeping.
Additionally, Officer Bilbrey testified that she went back to the trailer home
around 10:00 p.m. to pick up E.J.C., who was two-months old at the time. Another
adult, “Frankie,” was at the home with E.J.C. Frankie and Bilbrey both looked
around the home for formula for E.J.C., but they could only find enough formula to
make one two-ounce bottle. And although Frankie gave Bilbrey a car seat for E.J.C.,
it was “[d]irty.” Frankie did not give Bilbrey any clothes that fit E.J.C., and Frankie
told Bilbrey that she had been gone from the home all day.
Officer Newberry testified that on August 16, 2021, she went to mother’s
trailer home around 5:20 p.m. to perform a welfare check with Officer Bilbrey.
When they arrived at the home, Bilbrey knocked on the front door, and N.L.S.
answered. N.L.S. told the officers that he was home alone and that “nobody was
home” with him. (Internal quotations omitted.) Bilbrey then entered the home to
determine whether any other person was present. Bilbrey knocked loudly and yelled
loudly while inside the trailer home. In Newberry’s opinion, if someone was home,
she “would have known [that Bilbrey] was in the house.” Bilbrey tried to open the
bedroom door in the trailer home, but it was locked. Bilbrey did not find anyone
else in the home other than N.L.S. Newberry estimated that she and Bilbrey were at
51
the trailer home for about thirty to forty-five minutes before they left and brought
N.L.S. to the HLPD station. Newberry bought food for N.L.S. to eat at the station.
Officer Newberry further testified that around 7:00 p.m. that night, she went
back to the trailer home to see if anyone was there, but there were still no cars in the
driveway. At the trailer home, Newberry pounded on the door and yelled, but no
one answered.
At 7:24 p.m., law enforcement officers received a message from a neighbor
stating that there was a car in the trailer home’s driveway, and Officer Newberry
returned to the trailer home at about 7:36 p.m., along with Officer Bilbrey.
Newberry knocked on the front door of the home, and a woman, “Frankie,”
answered. Newberry identified herself and said that she was looking for mother.
Frankie indicated that mother was inside the home. Bilbrey then spoke with mother
and asked mother if she knew where N.L.S. was. Mother responded that N.L.S. was
“out playing at a friend’s house,” and then Bilbrey told mother that N.L.S. was at
the HLPD station. Mother indicated to Bilbrey that the last time she had seen N.L.S.
was “a few hours” before the officers’ arrival. Bilbrey and Newberry then requested
that mother come to the HLPD station, which was a few blocks away from the trailer
home.
According to Officer Newberry, she and Officer Bilbrey arrived back at the
HLPD station at about 7:45 p.m., but mother did not show up. Thus, at about
52
8:00 p.m., Newberry went back to the trailer home to find mother. Newberry found
mother “fiddling with something on the front porch, [and] kind of going in and out”
of the trailer home. Mother and Frankie were talking. Newberry told mother that
“she needed to come now,” and she did not leave the home until mother followed
her back to the HLPD station.
The trial court admitted into evidence a copy of a HLPD incident report
related to the events on August 16, 2021. It lists mother as the “[s]uspect/[o]ffender”
and the offense as abandoning or endangering a child.45 The “[n]arrative[]” portion
of the incident report states that Officer Newberry and Officer Bilbrey received a
telephone call from a Holiday Lakes resident about a five-year old child, N.L.S.,
who had been at her home for the past few days. N.L.S. had been spending all day
at the resident’s home with “no parent coming by to check on him.” The resident
reported that N.L.S. had arrived at her home each day dirty, hungry, with no shoes,
and in the same clothes. On August 16, 2021, N.L.S. showed up at the resident’s
home at about 8:00 a.m., with a fish tank and some other belongings in his hands.
He asked the resident if he could move in with her because “his mom [had] kicked
him out of [h]is home.” N.L.S., “with tears in his eyes,” told the resident that he had
been kicked out of his home “because he was trying to fill his fish tank up.” When
the resident had to leave her home later that day, she told N.L.S. that he needed to
45
See TEX. PENAL CODE ANN. § 22.041.
53
go home until she returned. As she drove by N.L.S.’s home, she saw N.L.S. sitting
on the front porch of his home holding his fish tank. The resident decided to report
the incident to the HLPD.
The narrative portion of the incident report further states that Officer
Newberry and Officer Bilbrey told the resident that they would go by N.L.S.’s home
and perform a welfare check and see who else was at the home. Newberry and
Bilbrey arrived at the home, located in Holiday Lakes, at about 5:20 p.m. Newberry
noticed “a lot of garbage and shoes and many more random objects all over the front
yard and porch area of the home.” And when Newberry and Bilbrey went to the
front door of the home, “there was a very strong smell of ammonia,” which was
concerning to the officers. Although the screen door was closed, the main front door
to the home was open. Bilbrey knocked on the door, and N.L.S. came and opened
the screen door for the officers. When the officers asked N.L.S. if anyone was home
with him, he replied, “No, my mom is not home right now, but I have her cell[ular]
[tele]phone.” (Internal quotations omitted.) Newberry and Bilbrey then yelled into
the home, “Holiday Lakes Police Department, is anyone in the home?” (Internal
quotations omitted.) And N.L.S. kept repeating that “no one was [t]here.” After
Bilbrey entered the home, she “looked in the rooms to confirm that no one was
there.”
54
Additionally, the incident report notes that the bedroom door in the home was
locked, so Officer Bilbrey knocked on the door and yelled, “Holiday Lakes Police is
anyone home?” But no one responded. Bilbrey and N.L.S. then sat on the front
porch of the home, and Officer Newberry stepped away to call DFPS. Newberry
was instructed to bring N.L.S to the HLPD station with the officers. At about
5:44 p.m., Newberry and Bilbrey left the home with N.L.S. and brought N.L.S. to
the HLPD station, where they arrived at 5:47 p.m. Newberry left Bilbrey and N.L.S.
at the station and went to pick up food for N.L.S. because he stated that he was
hungry and that he had not eaten anything that day.
The incident report additionally notes that at about 7:00 p.m., Officer
Newberry returned to N.L.S.’s home “to see if anyone showed up looking for him,”
but no one was there. Newberry then went back to the HLPD station, and at
7:24 p.m., law enforcement officers “received a message that a gray [car had been]
seen in the driveway of [the] home.” This prompted Newberry and Officer Bilbrey
to return to the home, and when they did, they saw a gray car parked in the driveway.
The officers approached the home and knocked on the front door. A woman, who
identified herself as “Frankie,” answered the door, and the officers asked Frankie if
mother was home. Frankie got mother out of a room in the home, telling her that
“the cops [were] [t]here for [her].” Mother came out to the front porch holding an
infant in her arms. Newberry asked mother if she knew where N.L.S. was, and
55
mother responded that he was “[d]own the road at a friend’s house.” (Internal
quotations omitted.) Newberry asked mother when she last saw N.L.S., and she
stated that she had seen him that morning, but she was not sure of the exact time.
Mother also told Newberry that she had been at the home all day. Newberry then
told mother that N.L.S. was at the HLPD station, he was speaking to a “social
worker,” and mother needed to come to the station. Mother replied that she would
meet the officers at the station.
Officer Newberry and Officer Bilbrey arrived back at the HLPD station at
about 7:45 p.m. When mother had not arrived at the HPLD station by 8:00 p.m.,
Newberry went back to the home and found mother outside. Newberry told mother
that she needed to come to the HLPD station right then and that Newberry would
follow her to the station to make sure that mother “got there ok.”
Attached to the HLPD incident report is a voluntary statement from the
Holiday Lakes resident who contacted law enforcement officers about N.L.S. on
August 16, 2021. In her voluntary statement, the resident states that N.L.S. was
five-years old and had been at her home “all day” for the past four days. She was
concerned about N.L.S. because he had been at her house “so often [and] for so long
[and] . . . mother never came around.” The resident had “never met” mother.
According to the resident, on August 16, 2021, N.L.S. came to the resident’s
home at 8:00 a.m. and asked her “if he could live with [her] because . . . mother [had]
56
kicked him out because he was filling up his fish tank.”46 N.L.S. “got teary eyed,”
and the resident let him into her house and fed him. At about 2:00 p.m., the resident
told N.L.S. “to go home,” but he came back less than fifteen minutes later and said
that mother had “kicked him out again.” Later, when the resident had to leave her
home, she asked N.L.S. if she could “drop[] him off at home” and he told her that
“he was going to get a spanking from” mother. When the resident drove by N.L.S.’s
home at about 5:00 p.m., she saw him sitting on the front porch. The resident noted
that on August 16, 2021, N.L.S. was wearing shoes, but on the other days that he
was at her home, he showed up barefoot, hungry, and wearing the same clothes.
A parent’s failure to properly supervise her young child endangers the child’s
physical or emotional well-being. See In re A.O., No. 02-21-00376-CV, 2022 WL
1257384, at *10–11 (Tex. App.—Fort Worth Apr. 28, 2022, pet. denied) (mem. op.)
(parent’s failure to supervise her child created dangerous condition for child); In re
J.H., No. 07-21-00059-CV, 2021 WL 2693284, at *3 n.4 (Tex. App.—Amarillo June
30, 2021, pet. denied) (mem. op.); In re A.K.T., No. 01-18-00647-CV, 2018 WL
6423381, at *14 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, pet. denied) (mem.
op.). And evidence that a parent has failed to supervise her young child supports the
46
Mother, during her testimony, acknowledged that N.L.S. had a fish tank but stated
that he did not have a fish in the tank. Further, according to mother, she sent N.L.S.
down to the neighbor’s home on the morning of August 16, 2021 so that he could
get his shoes, which he had left there. Mother denied kicking N.L.S. out of the
house.
57
trial court’s finding that the parent “knowingly placed or knowingly allowed [her]
child to remain in conditions or surroundings which endanger[ed] [his] physical or
emotional well-being” or that the parent “engaged in conduct . . . which
endanger[ed] the physical or emotional well-being of the child.”47 See TEX. FAM.
CODE ANN. § 161.001(b)(1)(D), (E); see also In re M.C., 917 S.W.2d at 269–70; In
re I.F., No. 01-22-00375-CV, 2022 WL 16640627, at *5 (Tex. App.—Houston [1st
Dist.] Nov. 3, 2022, no pet.) (mem. op.) (holding evidence legally and factually
sufficient to support trial court’s finding that parent knowingly placed or knowingly
allowed her child to remain in conditions or surroundings that endangered her
physical or emotional well-being where parent left child unsupervised in hotel
room); In re M.A.A., No. 01-20-00709-CV, 2021 WL 1134308, at *17–20 (Tex.
App.—Houston [1st Dist.] Mar. 25, 2021, no pet.) (mem. op.) (holding evidence
legally and factually sufficient to support trial court’s finding parent engaged in
conduct that endangered child’s physical and emotional well-being where child
outside wandering around without parent).
Further, parental neglect of a child can be as dangerous to the well-being of
the child as direct physical abuse. See In re A.K.T., 2018 WL 6423381, at *14. And
47
Although there is no evidence that mother failed to properly supervise E.J.C., a fact
finder can infer from the neglect of one child that the physical and emotional
well-being of the other children in the home were also jeopardized. See In re S.G.S.,
130 S.W.3d 223, 238 (Tex. App.—Beaumont 2004, no pet.).
58
neglect by a parent of a child’s physical needs can support a finding of
endangerment. See In re R.H., No. 06-20-00083-CV, 2021 WL 1704264, at *9 (Tex.
App.—Texarkana Apr. 30, 2021, pet. denied) (mem. op.); see also In re M.C., 917
S.W.2d at 270 (neglect of children’s physical needs can be just as dangerous to
well-being of children as direct physical abuse). As discussed above, the evidence
presented at trial showed that N.L.S., in the days before he was removed from
mother’s care, was seen on multiple occasions hungry, barefoot, in the same clothes,
and without supervision. Further, as to E.J.C., on the day she was removed from
mother’s care, she appeared underweight and there was a limited amount of formula
for E.J.C. in mother’s home and no appropriate clothing for that child.48 See In re
A.N., No. 02-14-00206-CV, 2014 WL 5791573, at *19 (Tex. App.—Fort Worth
Nov. 6, 2014, no pet.) (mem. op.) (record contained evidence of neglect where
children asked strangers for food and did not wear shoes); see also In re L.W., No.
02-18-00107-CV, 2018 WL 3385694, at *5 (Tex. App.—Fort Worth July 12, 2018,
pet. denied) (mem. op.) (parent’s failure to provide food for children constituted
voluntary conduct that endangered children).
Additionally, we note that this Court has previously stated that illegal
narcotics use and its effect on an individual’s ability to parent may constitute an
48
A fact finder can infer from the neglect of one child that the physical and emotional
well-being of the other children in the home were also jeopardized. See id.59
endangering course of conduct. See In re A.A.M., 464 S.W.3d 421, 426–27 (Tex.
App.—Houston [1st Dist.] 2015, no pet.). And we have concluded that illegal
narcotics use by a parent may support termination under Texas Family Code section
161.001(b)(1)(D) and (E). See In re L.W., No. 01-18-01025-CV, 2019 WL 1523124,
at *15–16 (Tex. App.—Houston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.)
(“[I]llegal narcotics use by a [parent] supports the conclusion that the children’s
surroundings endangered their physical or emotional well-being.”); Walker, 312
S.W.3d at 617–18; see also In re E.L.C., No. 05-20-00373-CV, 2020 WL 5494415,
at *9 (Tex. App.—Dallas Sept. 11, 2020, no pet.) (mem. op.); Vasquez v. Tex. Dep’t
of Protective & Regulatory Servs., 190 S.W.3d 189, 195–96 (Tex. App.—Houston
[1st Dist.] 2005, pet. denied). Further, evidence that a parent continued to use illegal
drugs even though the parent knew her parental rights were in jeopardy is conduct
showing a voluntary, deliberate, and conscious course of conduct, which by its
nature, endangers a child’s well-being. See In re M.E.-M.N., 342 S.W.3d 254, 263
(Tex. App.—Fort Worth 2011, pet. denied); Cervantes-Peterson v. Tex. Dep’t of
Fam. & Protective Servs., 221 S.W.3d 244, 253–54 (Tex. App.—Houston [1st Dist.]
2006, no pet.).
DFPS investigator Mendoza and DFPS caseworker West both testified that
DFPS was concerned about possible narcotics-use by mother during the pendency
of the case. According to Mendoza, mother had admitted that she had used
60
methamphetamines in the past. And Dr. Stadler, who conducted mother’s
psychological evaluation, testified that mother admitted that she had used marijuana,
methamphetamine, cocaine, alcohol, and ecstasy in the past. Mother told Dr. Stadler
that she began using marijuana and methamphetamines when she was twelve years
old. She started drinking alcohol when she was fourteen or fifteen years old, and
she used “acid once in [ninth] grade.” Mother used opioids when she was about
twenty-five or twenty-six years old.49
Although at trial mother denied having a “substance abuse issue” and stated
that she had not used narcotics since January 26, 2015, she also acknowledged that
her narcotics-use testing results from August 20, 2021 showed that she tested
positive for amphetamines, methamphetamines, and methadone days after the
children were removed from her care. A copy of mother’s narcotics-use testing
results from August 20, 2021, which was admitted into evidence at trial, show that
mother tested positive by urinalysis for amphetamine, methamphetamine, and
methadone. And mother tested positive for amphetamine and methamphetamine by
hair-follicle testing.50
49
Mother’s FSP states that mother reported that she had previously used muscle
relaxers and pain pills in 2008, and mother reported using methamphetamines in the
past.
50
Mother’s FSP similarly notes that mother tested positive for methamphetamines,
amphetamines, and methadone after the children were removed from her care.
61
DFPS caseworker West and mother both agreed that mother had been asked
to submit to twenty-four narcotics-use tests during the pendency of the case, and
mother failed to participate in virtually all of the requested narcotics-use tests.51 See
In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (fact
finder could reasonably infer parent’s failure to complete scheduled narcotics-use
screenings indicated she avoided testing because she had used narcotics); see also
In re A.K.T., 2018 WL 6423381, at *13 (considering parent failed to submit to
narcotics-use testing on numerous occasions during course of case when holding
evidence legally and factually sufficient to support finding parent engaged in
conduct that endangered child’s physical and emotional well-being). Further,
mother failed to complete substance-abuse counseling, which she was required to do
under her FSP, and she stopped attending substance-abuse counseling about six
months before trial.
Viewing the evidence in the light most favorable to the trial court’s findings,
we conclude that the trial court could have formed a firm belief or conviction that
mother knowingly placed, or knowingly allowed the children to remain, in
conditions or surroundings which endangered their physical or emotional well-being
or she engaged, or knowingly placed the children with persons who engaged, in
51
Mother’s FSP required mother to remain free of alcohol and narcotics during the
pendency of the case. And mother’s FSP informed her that if she failed to submit
to a required narcotics-use test, the test would be deemed a positive testing result.
62
conduct that endangered their physical or emotional well-being. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(D), (E). And, viewing the evidence in a neutral light,
we conclude that a reasonable fact finder could have formed a firm belief or
conviction that mother knowingly placed, or knowingly allowed the children to
remain, in conditions or surroundings which endangered their physical or emotional
well-being or she engaged, or knowingly placed the children with persons who
engaged, in conduct that endangered their physical or emotional well-being. See id.
§ 161.001(b)(1)(D), (E).
Further, we conclude that the trial court could have reconciled any disputed
evidence in favor of finding that mother knowingly placed, or knowingly allowed
the children to remain, in conditions or surroundings which endangered their
physical or emotional well-being or she engaged, or knowingly placed the children
with persons who engaged, in conduct that endangered their physical or emotional
well-being. And any disputed evidence was not so significant that a fact finder could
not have reasonably formed a firm belief or conviction that mother knowingly
placed, or knowingly allowed the children to remain, in conditions or surroundings
which endangered their physical or emotional well-being or she engaged, or
knowingly placed the children with persons who engaged, in conduct that
endangered their physical or emotional well-being.
63
Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court’s findings that mother knowingly placed, or knowingly
allowed the children to remain, in conditions or surroundings which endangered their
physical or emotional well-being or she engaged, or knowingly placed the children
with persons who engaged, in conduct that endangered their physical or emotional
well-being. See id. § 161.001(b)(1)(D), (E).
We overrule a portion of mother’s first issue.
Having held that the evidence is legally and factually sufficient to support the
trial court’s findings that mother knowingly placed, or knowingly allowed the
children to remain, in conditions or surroundings which endangered their physical
or emotional well-being or she engaged, or knowingly placed the children with
persons who engaged, in conduct that endangered their physical or emotional
well-being, we need not address the remaining portion of mother’s first issue in
which she asserted that the evidence was legally and factually insufficient to support
the trial court’s finding that she failed to comply with the provisions of a court order
that specifically established the actions necessary for her to obtain the return of the
children. See id. § 161.001(b)(1)(D), (E), (O); In re A.V., 113 S.W.3d at 362 (only
one predicate finding under Texas Family Code section 161.001(b)(1) necessary to
support judgment of termination); In re M.A.J., 612 S.W.3d 398, 408 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied); see also TEX. R. APP. P. 47.1.
64
B. Best Interest of Children
In her second issue, mother argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental rights
was in the best interest of the children because the children were young and bonded
with mother, mother visited the children weekly during the pendency of the case,
mother explained “some of the ways in which she cared and parented each child,”
E.J.C.’s father would stop living with mother if the children were returned to her
care, there was no evidence that mother’s relationship with the children was
inappropriate, DFPS “offered no evidence of either child at their current placement,”
mother’s failure to complete the requirements of her FSP was not determinative, and
“the record . . . d[id] not show that mother did not meet the children’s physical and
emotional needs while they were previously in her care.”
The best-interest analysis evaluates the best interest of the children. See In re
M.A.A., 2021 WL 1134308, at *20; In re D.S., 333 S.W.3d 379, 384 (Tex. App.—
Amarillo 2011, no pet.). It is presumed that the prompt and permanent placement of
the children in a safe environment is in their best interest. See TEX. FAM. CODE ANN.
§ 263.307(a); In re D.S., 333 S.W.3d at 383.
There is also a strong presumption that the children’s best interest is served
by maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). Thus, we strictly scrutinize termination
65
proceedings in favor of the parent. See In re M.A.A., 2021 WL 1134308, at *20; In
re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—Texarkana 2013, no pet.).
In determining whether the termination of mother’s parental rights was in the
best interest of the children, we may consider several factors, including: (1) the
desires of the children; (2) the current and future physical and emotional needs of
the children; (3) the current and future emotional and physical danger to the children;
(4) the parental abilities of the parties seeking custody; (5) whether programs are
available to assist those parties; (6) plans for the children by the parties seeking
custody; (7) the stability of the proposed placement; (8) the parent’s acts or
omissions that may indicate that the parent-child relationship is not proper; and
(9) any excuse for the parent’s acts or omissions.52 See Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976); In re L.M., 104 S.W.3d at 647. We may also consider the
statutory factors set forth in Texas Family Code section 263.307. See TEX. FAM.
CODE ANN. § 263.307; In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018); In re
C.A.G., No. 01-11-01094-CV, 2012 WL 2922544, at *6 & n.4 (Tex. App.—Houston
[1st Dist.] June 12, 2012, no pet.) (mem. op.).
We note that the above listed factors are not exhaustive, and there is no
requirement that DFPS prove all factors as a condition precedent to the termination
of parental rights. See In re C.H., 89 S.W.3d at 27; see also In re C.L.C., 119 S.W.3d
52We noted that much of the evidence discussed below applies to multiple factors.
66
382, 399 (Tex. App.—Tyler 2003, no pet.) (“[T]he best interest of the child does not
require proof of any unique set of factors nor limit proof to any specific factors.”).
The absence of evidence about some of the factors does not preclude a fact finder
from reasonably forming a strong conviction or belief that termination is in the
children’s best interest. In re C.H., 89 S.W.3d at 27; In re J. G. S., 574 S.W.3d 101,
122 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). In some cases, undisputed
evidence of only one factor may be sufficient to support a finding that termination
is in the children’s best interest. See In re C.H., 89 S.W.3d at 27; see also In re
J. G. S., 574 S.W.3d at 122.
The same evidence of acts and omissions used to establish grounds for
termination under Texas Family Code section 161.001(b)(1) may also be relevant to
determining the best interest of the children. See In re C.H., 89 S.W.3d at 28; In re
L.M., 104 S.W.3d at 647. The trial court is given wide latitude in determining the
best interest of the children. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982);
see also Cuellar v. Flores, 238 S.W.2d 991, 992 (Tex. App.—San Antonio 1951, no
writ) (trial court “faces the parties and the witnesses, observes their demeanor and
personality, and feels the forces, powers, and influences that cannot be discerned by
merely reading the record”).
67
1. Children’s Desires
When mother’s parental rights were terminated, N.L.S. was seven-and-a-half
years old and E.J.C. was almost twenty-two months old. Neither child directly
expressed a desire as to whether he or she wish to be returned to mother’s care or
remain in their current placement.
When there is no specific evidence of the children’s desires or the children are
too young to express those desires, a fact finder may consider evidence that the
children are bonded with their foster family and receive good care in their current
placement. See In re L.W., 2019 WL 1523124, at *18; In re L.M.N., 2018 WL
5831672, at *20.
Sullivan, the guardian ad litem for the children, testified that because of
E.J.C.’s young age, the children’s foster parents were “[t]he only people she[] [had]
ever known in her life that ha[d] given her stability.” E.J.C. referred to the children’s
foster parents as “her parents,” and according to Sullivan, E.J.C. was “very
well-settled in” the foster parents’ home. Sullivan noted that N.L.S. had expressed
some fear about being returned to mother’s care.
Further, mother’s FSP states that while in the care of his foster parents, N.L.S.
was doing well in school and had not had any behavioral or emotional issues. N.L.S.
“fit[] in well with his foster family” and had a “positive relationship[] with his foster
68
parents.” As to E.J.C., mother’s FSP notes that she was comfortable in her
placement with her foster parents.
However, Sullivan also acknowledged that N.L.S. was bonded with mother
and mother had visited N.L.S. on a weekly basis throughout the pendency of the
case, except for when she was “in jail.” And mother’s FSP states that E.J.C.
appeared to be bonded with mother. Further, DFPS caseworker West agreed that
mother had attended most of her weekly supervised visits with the children and
mother did not act inappropriately at visits. Mother brought food and sometimes
clothing to the visits, and mother engaged with the children at her visits. West
acknowledged that the children “adore[d]” mother.
Although “[a] child’s love for [his] natural parent is an important
consideration in the best interest determination,” “[e]ven where a child is attached
to a parent, . . . [a] child’s desire to be returned to the parent [is] not . . . dispositive
of the best interest analysis,” especially “if the parent has engaged in conduct
dangerous to the child’s well-being.” In re M.S.L., No. 14-14-00382-CV, 2014 WL
5148157, at *9 (Tex. App.—Houston [14th Dist.] Oct. 14, 2014, no pet.) (mem. op.);
see also In re K.S.O.B., No. 01-18-00860-CV, 2019 WL 1246348, at *19 (Tex.
App.—Houston [1st Dist.] Mar. 19, 2019, no pet.) (mem. op.) (even though children
appeared happy to see parent at visits, that was not dispositive of best-interest
analysis).
69
2. Current and Future Physical and Emotional Danger
a. Criminal Conduct and Violence
A parent’s criminal history is relevant in analyzing the present and future
emotional and physical danger to a child and whether a parent can provide a safe and
stable home for her child. See In re D.J.G., No. 01-22-00870-CV, 2023 WL
3513143, at *20 (Tex. App.—Houston [1st Dist.] May 18, 2023, no pet.) (mem. op.);
see also In re J.S.B., Nos. 01-17-00480-CV, 01-17-00481-CV, 01-17-00484-CV,
2017 WL 6520437, at *18–19 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet.
denied) (mem. op.); In re T.L.S., No. 01-12-00434-CV, 2012 WL 6213515, at *6
(Tex. App.—Houston [1st Dist.] Dec. 13, 2012, no pet.) (mem. op.) (evidence of
parent’s criminal history may support trial court’s finding termination of parental
rights in children’s best interest). And “[a]s a general rule, conduct that subjects a
child to a life of uncertainty and instability endangers the physical and emotional
well-being of [the] child.” In re R.W., 129 S.W.3d at 739. Further, parental violence
is relevant when considering the best interest of the child. See In re D.J.G., 2023
WL 3513143, at *19.
Mother testified that she was previously convicted of four counts of the
offense of forgery of a financial instrument in 2012. And she acknowledged that
during the pendency of the case, she had pleaded guilty to the offense of attempted
abandonment or endangerment of a child, related to her failure to properly supervise
70
N.L.S. in August 2021—which was the impetus for the children being removed from
her care.53 At the time of trial, mother stated that she was on community supervision
related to the offense of attempted abandonment or endangerment of a child.
According to mother’s FSP, mother had been “arrested for assault in the past but the
charges were dropped.”
DFPS caseworker West explained that during the pendency of the case,
mother was in “jail” from April 29, 2022 until June 4, 2022. And according to West,
at the time of trial, mother was “on probation.” Mother missed visitations with the
children when she was “in jail.”
As to whether mother had ever engaged in physical altercations with others,
Dr. Stadler, who conducted mother’s psychological evaluation, explained that
mother reported that she had been involved in physical altercations as a child and as
an adult. Her last physical altercation was with the girlfriend or ex-girlfriend of
E.J.C.’s father. Mother also indicated that she was involved in another physical
altercation in 2014. According to mother’s FSP, N.L.S. reported to DFPS that
mother and E.J.C.’s father would “fight with their hands.” (Internal quotations
omitted.) See In re J.B.M., No. 04-18-00717-CV, 2019 WL 1139858, at *2 (Tex.
App.—San Antonio Mar. 13, 2019, pet. denied) (mem. op.) (“Domestic violence and
53
See TEX. PENAL CODE ANN. §§ 15.01 (criminal attempt), 22.041 (offense of
abandoning or endangering child).
71
a propensity for violence may be considered evidence of endangerment, even if the
endangering acts did not occur in the children’s presence, were not directed at the
children, or did not cause actual injury to the children.”); In re A.V.M., No.
13-12-00684-CV, 2013 WL 1932887, at *5 (Tex. App.—Corpus Christi–Edinburg
May 9, 2013, pet. denied) (mem. op.) (“It is self[-]evident that parents perpetrating
violence towards certain members of the family threaten the emotional development
and well-being of any child.”); Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d
815, 824 (Tex. App.—Fort Worth 2007, no pet.) (“[T]rial courts [have] relied on
evidence of past violence as an indicator of future behavior in parental termination
and child custody cases.”).
b. Narcotics Use
Illegal narcotics use by a parent may constitute evidence of current and future
danger to a child. See In re D.J.G., 2023 WL 3513143, at *23; In re O.J.P., No.
01-21-00163-CV, 2021 WL 4269175, at *19–21 (Tex. App.—Houston [1st Dist.]
Sept. 21, 2021, no pet.) (mem. op.) (considering evidence of parent’s narcotics use
in determining current and future danger to child); see also In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009) (stating “a parent’s use of narcotics and its effect on his or her
ability to parent may qualify as an endangering course of conduct”); In re S.R.H.,
No. 01-15-0714-CV, 2016 WL 430462, at *10–11 (Tex. App.—Houston [1st Dist.]
Feb. 4, 2016, no pet.) (mem. op.) (parent’s past narcotics use is indicative of
72
instability in home environment); Cervantes-Peterson, 221 S.W.3d at 254–55
(illegal narcotics use while parental rights are in jeopardy may be considered
endangering course of conduct critical to finding that termination is in child’s best
interest).
DFPS investigator Mendoza and DFPS caseworker West both testified that
DFPS was concerned about possible narcotics-use by mother during the pendency
of the case. According to Mendoza, mother had admitted that she had used
methamphetamines in the past. And Dr. Stadler, who conducted mother’s
psychological evaluation, testified that mother admitted that she had used marijuana,
methamphetamine, cocaine, alcohol, and ecstasy in the past. Mother told Dr. Stadler
that she began using marijuana and methamphetamines when she was twelve years
old. She started drinking alcohol when she was fourteen or fifteen years old, and
she used “acid once in [ninth] grade.” Mother used opioids when she was about
twenty-five or twenty-six years old.54
Although at trial mother denied having a “substance abuse issue” and stated
that she had not used narcotics since January 26, 2015, she also acknowledged that
her narcotics-use testing results from August 20, 2021 showed that she tested
positive for amphetamines, methamphetamines, and methadone only days after the
54
Mother’s FSP also states that mother reported that she had used muscle relaxers and
pain pills in 2008, and mother reported using methamphetamines in the past.
73
children were removed from her care. A copy of mother’s narcotics-use testing
results from August 20, 2021, which was admitted into evidence at trial, show that
mother tested positive by urinalysis for amphetamine, methamphetamine, and
methadone, and mother tested positive for amphetamine and methamphetamine by
hair-follicle testing.55
DFPS caseworker West and mother both agreed that mother had been asked
to submit to twenty-four narcotics-use tests during the pendency of the case, and
mother failed to participate in virtually all of the requested narcotics-use tests.56 See
In re W.E.C., 110 S.W.3d at 239 (fact finder could reasonably infer parent’s failure
to complete scheduled narcotics-use screenings indicated she avoided testing
because she had used narcotics); see also In re T.L.S., 2012 WL 6213515, at *6
(considering evidence of parent’s refusal to take court-ordered narcotics-use test in
determining best interest of child). Further, mother failed to complete
substance-abuse counseling, which she was required to do under her FSP, and she
stopped attending substance-abuse counseling about six months before trial. See In
re D.J.G., 2023 WL 3513143, at *24 (considering parent had not completed all
55
Mother’s FSP similarly notes that mother tested positive for methamphetamines,
amphetamines, and methadone after the children were removed for her care.
56
Mother’s FSP required mother to remain free of alcohol and narcotics during the
pendency of the case. And mother’s FSP informed her that if she failed to report to
a required narcotics-use test, the test would be deemed a positive testing result.
74
requirements of his FSP related to his substance abuse issues in determining best
interest of child).
3. Current and Future Physical and Emotional Needs, Parental
Abilities, Plans for Children, and Stability of Proposed Placement
a. Children’s Needs
There is nothing in the trial record to establish that the children’s physical and
emotional needs differ in any respect to those of other children their ages. See In re
E.N.C., 384 S.W.3d at 808 (noting no evidence that children’s needs differed from
other children). However, a child needs a safe and stable home. See TEX. FAM.
CODE ANN. § 263.307(a) (prompt and permanent placement of child in safe
environment presumed to be in child’s best interest); In re G.M.G., 444 S.W.3d 46,
60 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (parent who lacks ability to
provide child with safe and stable home is unable to provide for child’s emotional
and physical needs). And a child’s basic needs include food, shelter, and clothing.
See In re K-A.B.M., 551 S.W.3d 275, 288 (Tex. App.—El Paso 2018, no pet.).
DFPS caseworker West testified that when the children entered DFPS’s care,
mother was living in a trailer home with “Frankie.”57 As to the condition of the
trailer home, the HLPD incident report from August 16, 2021—the date the children
were removed from mother’s care—states that the law enforcement officers who
57
“Frankie” is purportedly a cousin of E.J.C.’s father who has since moved away.
75
went to the trailer home noticed “a lot of garbage and shoes and many more random
objects all over the front yard and porch area of the home.” And “there was a very
strong smell of ammonia” coming from the home. Further, Officer Bilbrey testified
that at the trailer home, she and Frankie, who was living in the home and caring for
E.J.C. on the night of August 16, 2021, could not find enough formula for E.J.C. and
Frankie was unable to provide appropriate clothing for E.J.C.
Additionally, the HLPD incident report states that after law enforcement
officers removed N.L.S. from mother’s home, one of them went to get him food
because he stated that he was hungry and had not eaten anything that day. And the
Holiday Lakes resident, who contacted law enforcement officers about N.L.S.,
explained that he had been at her home “all day” for the four days prior to August
16, 2021 and he showed up each day hungry, wearing the same clothes, and barefoot.
DFPS caseworker West also testified that after the children were removed
from mother’s care, mother and E.J.C.’s father moved into a home together. After
that, mother “went to jail,” and once she was released, mother “mov[ed] from friend
to friend.” Then, mother began living with E.J.C.’s father and his mother. But, at
the time of trial, mother was living in a one-bedroom apartment with E.J.C.’s father.
Mother similarly explained that during the pendency of the case, she had
multiple different residences. After the children were removed from her care,
mother continued living at the trailer home for about a month. Mother did not own
76
the trailer home but was renting it. Mother then moved into a friend’s home until
July 7, 2022. She did not have a lease while living at a friend’s home, but she paid
rent. Mother next moved to the Cranbrook Apartment complex. She had lived in
two different apartments in that complex since July 7, 2022. Mother also noted that
after she was released from jail, but before an apartment was available at the
Cranbrook Apartment complex, she stayed with “two different friends.”
As to her housing situation at the time of trial, mother explained that she lived
in a one-bedroom apartment at the Cranbrook Apartment complex with E.J.C.’s
father. According to mother, E.J.C.’s father went “back and forth between” her
apartment and the apartment where his mother was living, which was in the same
apartment complex. However, mother stated that because the mother of E.J.C.’s
father was being evicted from her apartment, E.J.C.’s father would then stay with
her. But she noted that E.J.C.’s father “said that if it was a problem [for] him being
in [mother’s home] due to the case,” then “he would go elsewhere.” According to
mother, she had “no lease” for her apartment. And because E.J.C.’s father “d[id] the
maintenance” for the apartment complex, mother did not have to pay rent for the
apartment, but she is responsible for paying for electricity.58 Mother claimed that
58
Mother testified that at the time of trial she did not have a job. According to mother,
she had previously worked at a cleaning service from February 2022 until January
2023. But West noted that mother had never given her any documentation to show
that she was employed. See In re M.A.A., No. 01-20-00709-CV, 2021 WL 1134308,
at *30 (Tex. App.—Houston [1st Dist.] Mar. 25, 2021, no pet.) (mem. op.)
77
she was not in a relationship with E.J.C.’s father at the time of trial, but she stated
that he was not a danger to the children. Mother last saw E.J.C.’s father about two
weeks before trial.
It is clear from the record that DFPS was concerned about mother’s living
arrangement with E.J.C.’s father because he had failed to complete, most, if not all,
of the requirements of his FSP, he did not maintain a safe and stable home during
the pendency of the case or submit to any narcotics-use testing, and he was arrested
during the pendency of the case on “a theft charge.” E.J.C.’s father also did not
appear at trial even though his parental rights to E.J.C. were subject to termination.
See In re L.W., 2019 WL 1523124, at *13 (“A parent endangers her children by
accepting the endangering conduct of other people.”). Mother admitted that she did
not have a support system if the children were returned to her care.
b. Mother’s Supervision
Officer Bilbrey and Officer Newberry testified that on August 16, 2021,
N.L.S. was found home alone around 5:20 p.m. Hours later, when law enforcement
officers located mother, she reported to officers that N.L.S. was “out playing at a
(considering parent had difficulty maintaining stable employment in analyzing
parental abilities and stability of proposed placement for children); see also In re
G.R., No. 07-16-00277-CV, 2016 WL 6242829, at *6 (Tex. App.—Amarillo Oct.
25, 2016, no pet.) (mem. op.) (noting parent unable to maintain steady employment
or housing throughout termination case in considering stability of potential
placement with parent).
78
friend’s house,” when he was actually at the HLPD station. Mother indicated to
Bilbrey that she had not seen N.L.S. for “a few hours.”
A HLPD incident report related to the events of August 16, 2021, a copy of
which was admitted into evidence, lists mother as the “[s]uspect/[o]ffender” and the
offense as abandoning or endangering a child.59 The “[n]arrative[]” portion of the
incident report states that Officer Newberry and Officer Bilbrey received a telephone
call from a Holiday Lakes resident about a five-year old child, N.L.S., who had been
at her home for the past few days. N.L.S. had been spending all day at her home
with “no parent coming by to check on him.” The resident reported that N.L.S. had
arrived at her home each day dirty, hungry, with no shoes, and in the same clothes.
On August 16, 2021, N.L.S. showed up at the resident’s home at about 8:00 a.m.,
with a fish tank and some other belongings in his hands. He asked the resident if he
could move in with her because “his mom [had] kicked him out of [h]is home.”
N.L.S., “with tears in his eyes,” told the resident that he had been kicked out of his
home “because he was trying to fill his fish tank up.” When the resident had to leave
her home later that day, she told N.L.S. that he needed to go home until she returned.
But when she drove by N.L.S.’s home, she saw N.L.S. sitting on the front porch of
his home holding his fish tank.
59
See TEX. PENAL CODE ANN. § 22.041.
79
The incident report further states that when Officer Newberry and Officer
Bilbrey went to N.L.S.’s home on August 16, 2021 around 5:20 p.m., the screen door
was closed, but the main front door to the home was open. After Bilbrey knocked,
N.L.S. came and opened the screen door for the officers and told them that mother
was “not home right now.” (Internal quotations omitted). After Bilbrey entered the
home, she “looked in the rooms to confirm that no one was there,” and N.L.S. kept
repeating that “no one was [t]here.” The law enforcement officers were not able to
find anyone else in the home other than N.L.S. When Newberry located mother,
several hours later, mother told Newberry that she had last seen N.L.S. that morning,
but she was not sure of the exact time.
In the voluntary statement from the Holiday Lakes resident who contacted law
enforcement officers about N.L.S., the resident states that N.L.S. was five-years old
and had been at her home “all day” for the past four days. She was concerned about
N.L.S. because he had been at her house “so often [and] for so long [and] . . . mother
never came around.” The resident had “never met” mother. On August 16, 2021,
N.L.S. came to the resident’s home at 8:00 a.m. and asked her “if he could live with
[her] because . . . mother [had] kicked him out because he was filling up his fish
tank.”60 N.L.S. “got teary eyed,” and the resident let him into her house and fed him.
60
Mother, during her testimony, acknowledged that N.L.S. had a fish tank but stated
that he did not have a fish in the tank. Further, according to mother, she sent N.L.S.
down to the neighbor’s home on the morning of August 16, 2021 so that he could
80
At about 2:00 p.m., the resident told N.L.S. “to go home,” but he came back less
than fifteen minutes later and said that mother had “kicked him out again.” Later,
when the resident had to leave her home, she asked N.L.S. if she could “drop[] him
off at home” and he told her that “he was going to get a spanking from” mother.
When the resident drove by N.L.S.’s home at about 5:00 p.m., she saw him sitting
on the front porch. See TEX. FAM. CODE ANN. § 263.307(b)(12)(C) (in determining
whether parent willing and able to provide child with safe environment, considering
whether parent demonstrates adequate parenting skills, such as “supervision
consistent with the child’s safety”); In re A.J.B., No. 10-18-00274-CV, 2018 WL
6684808, at *3 (Tex. App.—Waco Dec. 19, 2018, no pet.) (mem. op.) (“[Y]oung
children are particularly vulnerable if left in the custody of a parent who is unable or
unwilling to protect them or attend to their needs because they have no ability to
protect themselves.”); In re S.B., 207 S.W.3d 877, 886 (Tex. App.—Fort Worth
2006, no pet.) (parent’s inability to provide adequate care for child, lack of parenting
skills, and poor judgment may be considered when looking at child’s best interest);
In re C.M.W., No. 01-02-00474-CV, 2003 WL 579794, at *5 (Tex. App.—Houston
[1st Dist.] Feb. 27, 2003, no pet.) (mem. op.) (children’s basic needs include
appropriate supervision).
get his shoes, which he had left there. Mother denied kicking N.L.S. out of the
house.
81
c. Mother’s Acts or Omissions
A parent’s failure to comply with her FSP supports a finding that termination
of her parental rights is in the best interest of the children. See In re J.S.B., 2017
WL 6520437, at *22; In re E.A.F., 424 S.W.3d 742, 752 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied). Here, in her briefing, mother does not dispute that she did
not complete the requirements of her FSP. Further, DFPS caseworker West testified
that mother did not complete substance-abuse counseling, did not complete
individual therapy, and failed to submit to the required narcotics-use testing.
Mother, during her testimony, acknowledged that she had received her FSP, but she
did not complete the required substance-abuse counseling or individual therapy.
And she failed to participate in all the required narcotics-use testing. See In re E.S.S.,
No. 05-23-00031-CV, 2023 WL 4782682, at *13 (Tex. App.—Dallas July 27, 2023,
no pet. h.) (mem. op.) (parent’s failure “to engage in the programs ordered in the
[FSP] supports the trial court’s best-interest finding”); In re M.L.H., No.
04-21-00408-CV, 2022 WL 526501, at *4 (Tex. App.—San Antonio Feb. 23, 2022,
pet. denied) (mem. op.) (holding evidence legally and factually sufficient to support
trial court’s best-interest finding where parent “engaged in her service plan, [but]
failed to successfully complete it”).
d. Current Placement
82
DFPS caseworker West explained that the children were placed together in
the same foster home, although it was not an adoptive home. The children were
bonded to one another. Further, Sullivan, the guardian ad litem for the children,
testified that E.J.C. was “very well settled-in” her foster parents’ household. And
because E.J.C. was young, “[t]he only people she[] [had] ever known in her life that
ha[d] given her stability [were her] foster parents.” She referred to her foster parents
as “her parents.”
Mother’s FSP notes that N.L.S. was a healthy child, who was doing well in
school. N.L.S. “fit[] in well with his foster family” and had a “positive relationship[]
with his foster parents.” It also states that E.J.C. was comfortable in her placement
with her foster parents. Yet, it appears undisputed that the children’s current
placement is not an adoptive placement.
Sullivan did testify that “a family [had been] identified that [were] willing to
adopt [the children]” and that family “want[ed] to be made the placement[] for [the
children,” but she did not provide much detail. She noted that a background check
had been performed related to the family interested in adopting the children and the
family had known the children for more than a year. Further, the potential adoptive
placement would “have the [children’s current foster] parents . . . close by, as they
[were] all a tight-knit family.”
83
To the extent that the evidence presented at trial indicates that the children’s
current placement with their foster parents is not a permanent placement, we note
that “[a] lack of . . . definitive plans for [the] permanent placement and adoption” of
the children at the time of trial is not dispositive of the best-interest analysis. See In
re C.H., 89 S.W.3d at 28; see also In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013).
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude that the trial court could have formed a firm belief or conviction that
termination of mother’s parental rights was in the best interest of the children. See
TEX. FAM. CODE ANN. § 161.001(b)(2). Viewing the evidence in a neutral light, we
conclude that a reasonable fact finder could have formed a firm belief or conviction
that termination of mother’s parental rights was in the best interest of the children.
See id. We further conclude that the trial court could have reconciled any disputed
evidence in favor of finding that termination of mother’s parental rights was in the
children’s best interest, or any disputed evidence was not so significant that a fact
finder could not have reasonably formed a firm belief or conviction that termination
is in the best interest of the children. See id.
Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court’s finding that termination of mother’s parental rights was in
the best interest of the children. See id.
We overrule mother’s second issue.
84
C. Managing Conservatorship
In her third issue, mother argues that the trial court erred in appointing DFPS
as the children’s sole managing conservator because there was a rebuttable
presumption “that a parent w[ould] be named [the children’s] managing conservator
unless the [trial] court f[ound] that such [an] appointment would not be in the
child[ren’s] best interest” as it “would significantly impair the child[ren’s] physical
health or emotional development.” (Internal quotations omitted.)
The Texas Family Code provides that “[i]f the court terminates the
parent-child relationship with respect to both parents or to the only living parent, the
court shall appoint a suitable, competent adult, [DFPS], or a licensed child-placing
agency as managing conservator of the child.” TEX. FAM. CODE ANN. § 161.207(a);
see also In re S.M.G., No. 01-17-00056-CV, 2017 WL 2806332, at *8 (Tex. App.—
Houston [1st Dist.] June 29, 2017, pet. denied) (mem. op.) (“When the parents’
parental rights have been terminated, [Texas] Family Code section 161.207 governs
the appointment of a managing conservator.”). Generally, we review a trial court’s
conservatorship determination for an abuse of discretion. In re J.A.J., 243 S.W.3d
611, 616 (Tex. 2007).
Importantly, an order terminating the parent-child relationship divests the
parent of all legal rights and duties with respect to her children. TEX. FAM. CODE
ANN. § 161.206(b); In re A.L.J., No. 01-19-00251-CV, 2019 WL 4615826, at *9
85
(Tex. App.—Houston [1st Dist.] Sept. 24, 2019, no pet.) (mem. op.). A parent with
no legal rights with respect to her children lacks standing to attack the portion of the
trial court’s order appointing DFPS as the sole managing conservator of the children.
See In re A.L.J., 2019 WL 4615826, at *9.
Here, we have overruled mother’s complaint that the trial court erred in
terminating her parental rights to the children. See In re J.H., 2023 WL 2169952, at
*27; see also In re A.L.J., 2019 WL 4615826, at *9 (“Once we overrule a parent’s
challenge to the termination order, the trial court’s appointment of [DFPS] as sole
managing conservator may be considered a ‘consequence of the termination’ . . . .”);
In re S.R., 452 S.W.3d 351, 359 n.3 (Tex. App.—Houston [14th Dist.] Nov. 13,
2014, pet. denied) (“A trial court does not abuse its discretion in appointing [DFPS]
as conservator of the children where the evidence is sufficient to support termination
of parental rights.”); Quiroz v. Dep’t of Fam. & Protective Servs., No.
01-08-00548-CV, 2009 WL 961935, at *11 (Tex. App.—Houston [1st Dist.] Apr. 9,
2009, no pet.) (mem. op.) (refusing to address parent’s complaint evidence
insufficient to support DFPS’s appointment as sole managing conservator where
evidence sufficient to support termination of parent’s rights). Thus, the trial court’s
order terminating mother’s parental rights divested her of her legal rights and duties
to the children. See TEX. FAM. CODE ANN. § 161.206(b); In re J.H., 2023 WL
2169952, at *27; see also In re A.L.J., 2019 WL 4615826, at *9 (“Because we have
86
overruled [parent’s] challenge to the portion of the trial court’s order terminating her
parental rights, the order has divested [her] of her legal rights and duties related to
[the children].”).
Having no legal rights with respect to the children, we hold that mother lacks
standing to challenge the portion of the trial court’s order appointing DFPS as sole
managing conservator of the children. See In re J.H., 2023 WL 2169952, at *27; In
re A.L.J., 2019 WL 4615826, at *9 (“[Parent] d[id] not have standing to challenge
the portion of the order appointing [DFPS] as permanent managing conservator of
the children because any alleged error could not injuriously affect her rights.”).
We overrule mother’s third issue.
Termination of Father’s Parental Rights
In his first issue, father argues that the trial court erred in terminating his
parental rights to N.L.S. because the evidence is legally and factually insufficient to
support the trial court’s finding that father engaged, or knowingly placed N.L.S. with
persons who engaged, in conduct that endangered his physical or emotional
well-being. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E). In his second issue,
father argues that the trial court erred in terminating his parental rights to N.L.S.
because the evidence is legally and factually insufficient to support the trial court’s
finding that termination of father’s parental rights was in the best interest of N.L.S.
See id. § 161.001(b)(2).
87
As stated above, in order to terminate the parent-child relationship, DFPS
must establish, by clear and convincing evidence, one or more of the acts or
omissions enumerated in Texas Family Code section 161.001(b)(1) and that
termination of parental rights is in the best interest of the child. See id. § 161.001(b).
Both elements must be established, and termination may not be based solely on the
best interest of the child as determined by the trier of fact. Id.; Boyd, 727 S.W.2d at
533. “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 interest.” In re A.V., 113 S.W.3d at 362.
In a portion of his first issue, father argues that the evidence is legally
insufficient to support the trial court’s finding that he engaged, or knowingly placed
N.L.S. with persons who engaged, in conduct that endangered N.L.S.’s physical or
emotional well-being because incarceration alone will not support the termination
of parental rights and the evidence showed that father did not have “any knowledge
of the reasons that [N.L.S.] w[as] removed/picked up by” DFPS, father believed that
N.L.S was “in good health and in good hands with” mother, and “many of the
convictions that were brought up at trial occurred years before [N.L.S.] was born
and even before [father] knew that he was even the possible father of [N.L.S.]” See
TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
88
A trial court may terminate the parent-child relationship if it finds by clear
and convincing evidence that the parent has “engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endanger[ed] the
physical or emotional well-being of the child.” Id. Within this context,
endangerment encompasses “more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment.” Boyd, 727 S.W.2d at
533. Instead, “endanger” means to expose the child to loss or injury or to jeopardize
their emotional or physical health. Id. (internal quotations omitted); see also Walker,
312 S.W.3d at 616.
We must look at a parent’s conduct standing alone, including his actions and
omissions. In re J.W., 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied).
It is not necessary to establish that a parent intended to endanger the child. See In
re L.M.N., 2018 WL 5831672, at *14. But termination of parental rights under Texas
Family Code section 161.001(b)(1)(E) requires “more than a single act or omission;
a voluntary, deliberate, and conscious course of conduct by the parent is required.”
In re J.T.G., 121 S.W.3d at 125; see also In re L.M.N., 2018 WL 5831672, at *14.
The specific danger to the child’s well-being may be inferred from parental
misconduct, even if the conduct is not directed at the child and the child suffers no
actual injury. See Boyd, 727 S.W.2d at 533; In re L.M.N., 2018 WL 5831672, at
*14; In re R.W., 129 S.W.3d at 738. Courts may consider parental conduct that did
89
not occur in the child’s presence, including conduct before the child’s birth. In re
L.M.N., 2018 WL 5831672, at *14; In re A.A.M., 464 S.W.3d at 426.
At trial, DFPS relied on father’s history of incarceration to establish that father
engaged, or knowingly placed N.L.S. with persons who engaged, in conduct that
endangered N.L.S.’s physical or emotional well-being. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(E).
Father testified that, at the time of trial, he was incarcerated, and he was
incarcerated when N.L.S. was removed from mother’s care in August 2021.
According to father, in February 2021, he was convicted of the offenses of felon in
possession of a firearm,61 possession of a prohibited weapon,62 evading arrest or
detention,63 assault of a family member,64 and possession of a controlled substance,65
61
See TEX. PENAL CODE ANN. § 46.04.
62
See id. § 46.05.
63
See id. § 38.04.
64
See id. § 22.01. Mother was not the complainant of this offense.
65
The trial court admitted into evidence a copy of the indictment related to the
possession-of-a-controlled-substance offense as well as a judgment of conviction
showing that father pleaded guilty to the offense, and the trial court, in accord with
the agreed punishment recommendation from the State, assessed father’s
punishment at confinement for 645 days. Father received a jail time credit of 631
days.
90
namely methamphetamine.66 Father “signed . . . a five-year plea” bargain agreement
related to those offenses. Father’s discharge date is in May 2025.67
Father also noted that he was incarcerated when N.L.S. was born. As to his
criminal history, father explained that in 2007, he was arrested for the offense of
“theft of a firearm,”68 and he pleaded guilty to the offense.69 In 2009, he was
convicted of the offense of assault70 and received “time served in county jail.”71
Further, in 2013, he was convicted of the offenses of evading arrest or detention72
66
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(6), 481.115. As to the
possession-of-a-controlled-substance offense, father stated that his counsel at the
time told him that there “was residue in a pipe” that was “in the back bed of [father’s]
truck.” Notably, there is no evidence that N.L.S. was in father’s care when he was
in possession of a controlled substance or that father used narcotics in the presence
of N.L.S.
67
Father stated that he had a parole hearing scheduled for March 2023, and he had
“support letters . . . from the sheriff” because he was “a trustee” with the sheriff’s
department and worked as a welder.
68
See TEX. PENAL CODE ANN. § 31.03.
69
The trial court admitted into evidence a copy of the indictment related to the
misdemeanor theft offense as well as a copy of a judgment, signed on December 5,
2008 and showing that father pleaded guilty to the misdemeanor offense of theft of
a firearm and the trial court assessed father’s punishment at confinement in the
county jail for 100 days. Father received a jail time credit of 111 days.
70
See id. § 22.01. Father did not know mother at the time he was convicted of this
offense, and mother was not the complainant of the offense.
71
The trial court admitted into evidence a copy of the information related to the
misdemeanor assault offense and a copy of the judgment, stating that father pleaded
guilty to the misdemeanor offense of assault and the trial court assessed his
punishment at confinement for three days in the county jail. Father received a jail
time credit of fourteen days.
72
See id. § 38.04.
91
and unauthorized use of a motor vehicle.73 And in 2014, father pleaded guilty to the
offense of burglary.74 In 2015, he pleaded guilty to the offense of “credit card
abuse.”75
The fact that a parent is incarcerated, standing alone, does not constitute
engaging in conduct that endangers the emotional or physical well-being of a child,
although it may be a fact to consider on the issue of endangerment. See In re D.W.,
Nos. 01-13-00880-CV, 01-13-00883-CV, 01-13-00884-CV, 2014 WL 1494290, at
*6 (Tex. App.—Houston [1st Dist.] Apr. 11, 2014, pet. denied) (mem. op.); In re
M.R., 243 S.W.3d 807, 819 (Tex. App.—Fort Worth 2007, no pet.); Walker v. Dep’t
of Fam. & Protective Servs., 251 S.W.3d 563, 565 (Tex. App.—Houston [1st Dist.]
2006, no pet.); see also In re J.F.-G., 627 S.W.3d 304, 316 (Tex. 2021) (“[M]ere
imprisonment—past or present—[does not] conclusively constitute[]
endangerment . . . .” (internal quotations omitted)). Instead, the State “must show
73
See id. § 31.07.
74
See id. § 30.02. The trial court admitted into evidence a copy of the indictment
related to the burglary offense and other documents admitted into evidence show
that father, with an agreed punishment recommendation from the State, pleaded
guilty to the offense of burglary of a building and the trial court deferred
adjudication of father’s guilt and placed him on community supervision for three
years. After the State filed a motion to adjudicate father’s guilt, father pleaded true
to certain allegations in the State’s motion in exchange for the State recommending
that punishment be assessed at confinement for eight months. A copy of the
judgment adjudicating guilt shows that the trial court assessed father’s punishment
at confinement for eight months and father received a “jail time credit” of 182 days.
75
See id. § 32.31.
92
that the incarceration [of the parent] is part of a course of conduct that is endangering
the child[].” In re D.W., 2014 WL 1494290, at *6 (internal quotations omitted).
Importantly, termination of parental rights should not become an additional
punishment for the commission of a criminal offense. See In re A.E.G., No.
12-11-00307-CV, 2012 WL 4502085, at *4 (Tex. App.—Tyler Sept. 28, 2012, no
pet.) (mem. op.) (“Imprisonment can be used only as a factor to consider on the issue
of endangerment; otherwise, the termination of parental rights could become an
additional punishment automatically imposed along with imprisonment for almost
any crime.”); In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no
pet.); see also In re E.N.C., 384 S.W.3d at 805 (rejecting proposition that any offense
committed by parent that could lead to imprisonment or confinement would establish
endangerment to children).
Here, DFPS did not present clear and convincing evidence that N.L.S.’s
physical or emotional well-being was endangered by father’s criminal conduct or
incarceration.76 See In re A.A., No. 06-14-00060-CV, 2014 WL 5421027, at *3 (Tex.
76
DFPS asserts, in its briefing, that the facts of this case are the same facts as in our
previous decision in In re V.V., 349 S.W.3d 548 (Tex. App.—Houston [1st Dist.]
2010, no pet.) because the father in In re V.V. was incarcerated at the time of his
child’s birth, at the time the child entered DFPS’s care, and at the time the trial court
terminated the father’s parental rights to the child. Although we held in In re V.V.
that the evidence was legally sufficient to support “a termination finding based on
endangerment,” that case is factually distinguishable from the instant case. See id.at 553–57. Of note, in In re V.V., the father, only days before trial, assaulted the
child’s mother, which was documented by photographic evidence. See id. 552–54.
And the actions of both parents led to the child being in the care of DFPS since birth.
93
App.—Texarkana Oct. 23, 2014, no pet.) (mem. op.) (explaining “the relevant
inquiry is whether evidence exists that the endangerment of the children’s emotional
or physical well-being was the direct result of [parent’s] conduct”); Ruiz v. Tex.
Dep’t of Fam. & Protective Servs., 212 S.W.3d 804, 818 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (DFPS must present evidence “that the endangerment of the
child’s physical or emotional well[-]being was the direct result of the parent’s
conduct”); see also In re E.N.C., 384 S.W.3d at 803–05 (recognizing it was DFPS’s
burden to show “how the offense was part of a voluntary course of conduct” that
endangered children and holding evidence legally insufficient to support termination
under Texas Family Code section 161.001(b)(1)(E)); In re L.C.L., 599 S.W.3d 79,
84 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (“A plain language reading of
the statute requires a causal connection between [parent’s conduct] and the alleged
endangerment.”).
When N.L.S. was removed from mother’s care, father was incarcerated, and
there was no evidence presented at trial that N.L.S. entered DFPS’s care because of
father’s acts or omissions.77 See Walker, 251 S.W.3d at 565–66 (holding evidence
See id. at 553–54 (noting that “[a]n infant who is not looked after by either of her
parents, as this one was not, undeniably is in serious danger of physical and
emotional injury”).
77
We note that father’s FSP, which was created by DFPS, did not list any requirements
for father to complete to ensure the return of N.L.S., other than to contact DFPS
upon his release from confinement. For instance, it did not require father to
participate in individual therapy, substance-abuse counseling, or parenting classes.
94
legally insufficient to support finding that parent engaged in conduct or knowingly
placed children with persons who engaged in conduct that endangered their physical
or emotional well-being where father was incarcerated at time children were
removed from mother’s care); In re K.W., 138 S.W.3d 420, 431–32 (Tex. App.—
Fort Worth 2004, pet. denied) (noting “[t]here must be evidence of endangerment to
the child’s physical or emotional well-being as the direct result of the parent’s
conduct” and holding evidence legally insufficient to support trial court’s finding
that parent engaged in conduct or knowingly placed child with persons who engaged
in conduct that endangered child’s physical or emotional well-being even though
parent was incarcerated); see also In re A.S., No. 09-21-00142-CV, 2021 WL
5113817, at *6 (Tex. App.—Beaumont Nov. 4, 2021, pet. denied) (mem. op.)
(“Endangerment arises when a parent’s conduct jeopardizes the child’s emotional or
physical health.”).
Although father has been twice convicted of the offense of assault in the past,
there was little detail as to those offenses introduced at trial—other than that they
did not involve mother or N.L.S.—and DFPS did not introduce any evidence of a
danger of violence to N.L.S. because of father’s convictions. See M.A.R. v. Dep’t of
Fam. & Protective Servs., No. 14-23-00094-CV, 2023 WL 5045687, at *7–8 (Tex.
App.—Houston [14th Dist.] Aug. 8, 2023, no pet.) (mem. op.) (holding evidence
legally insufficient to support trial court’s finding that parent engaged in conduct or
95
knowingly placed child with persons who engaged in conduct that endangered
child’s physical or emotional well-being, although parent had criminal record and
previous assault conviction); see also In re E.N.C., 384 S.W.3d at 804–05 (“We
agree that an offense occurring before a [parent’s] children are born can be a relevant
factor in establishing an endangering course of conduct, . . . but [DFPS] bears the
burden of introducing evidence concerning the offense and establishing that the
offense was part of a voluntary course of conduct that endangered the children’s
well-being.”). The same can be said about father’s conviction for the offense of
possession of a controlled substance; DFPS did not introduce any evidence that
N.L.S. was endangered by this criminal conduct by father.78 See M.A.R., 2023 WL
5045687, at *7–8 (holding evidence legally insufficient to support trial court’s
finding that parent engaged in conduct or knowingly placed child with persons who
engaged in conduct that endangered child’s physical or emotional well-being
although parent tested positive for marijuana during pendency of case and had
convictions for possession of marijuana in past because DFPS did not establish “[a]
causal link between his usage of marijuana and any alleged endangerment”); Ruiz,
212 S.W.3d at 818 (holding evidence legally insufficient to support trial court’s
78
Additionally, to the extent that DFPS relies on criminal conduct committed by father
in the distant past, DFPS did not show a present or future danger to N.L.S. because
of those prior criminal convictions. See Wetzel v. Wetzel, 715 S.W.2d 387, 391
(Tex. App.—Dallas 1986, no writ).
96
finding parent engaged in conduct or knowingly placed child with persons who
engaged in conduct which endangered the physical or emotional well-being of child
where evidence of parent’s narcotics use was limited and no evidence was presented
showing parent used narcotics while caring for child or in child’s presence); In re
D.J.J., 178 S.W.3d 424, 429–30 (Tex. App.—Fort Worth 2005, no pet.) (although
parent was arrested and later imprisoned on “three drug possession charges,” holding
evidence legally insufficient to support trial court’s finding that parent engaged in
conduct or knowingly placed child with persons who engaged in conduct which
endangered the physical or emotional well-being of child because “there [was] no
evidence that [parent’s] conduct in taking the methamphetamines that resulted in his
arrest and imprisonment endangered [child’s] physical or emotional well[-]being”);
In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied) (“[T]here
must be evidence of endangerment to the child’s physical or emotional well-being
as the direct result of the parent’s conduct.” (emphasis omitted)).
Here, DFPS did not establish by clear and convincing evidence a causal link
between father’s criminal conduct and any alleged endangerment to N.L.S. See In
re R.H., No. 01-14-00874-CV, 2015 WL 4594557, at *12 (Tex. App.—Houston [1st
Dist.] July 28, 2015, no pet.) (mem. op.) (“The relevant inquiry is whether evidence
exists that the parent’s conduct—including acts, omissions, and failures to act—
directly endangered the child’s physical [or emotional] well-being.”); In re V.S.R.K.,
97
No. 2-08-047-CV, 2009 WL 736751, at *7 (Tex. App.—Fort Worth Mar. 19, 2009,
no pet.) (mem. op.) (although parent had two prior convictions for evading arrest
and was incarcerated at time of trial, explaining DFPS had failed to show “how the
endangerment was the ‘direct result of’ [parent’s] conduct”).
Additionally, there is no evidence that father knew that N.L.S. would be
endangered while in the care of mother. Father testified that he and mother were
only in a relationship in 2015 for a few months and they just “talked” from 2017 to
2019, but they never lived together during those times. When father first met mother,
she lived with a friend in a “nice house” with four or five bedrooms. While mother
and N.L.S. lived with father for a couple of months in 2018, mother was a good
parent to N.L.S. She made N.L.S. dinner, gave him baths, and took him to doctors’
appointments. Mother did not “lose track” of N.L.S. or fail to take care of him. She
was attentive to his needs, and father did not see anything that would cause him to
be concerned about mother’s parental abilities. When mother and N.L.S. moved to
another city, father did not have any concerns about mother parenting N.L.S. He did
not think that she would be neglectful or endanger the child. Father did not know
that mother had a history with DFPS when he let N.L.S. live with mother. After
mother and N.L.S. decided to move, father went to visit N.L.S. on weekends.
Mother’s new home was clean. According to father, he did not know that mother
used narcotics and he and mother never used narcotics together. See Walker, 251
98
S.W.3d at 566 (holding evidence legally insufficient to support trial court’s finding
that parent engaged in conduct or knowingly placed child with persons who engaged
in conduct that endangered child’s physical or emotional well-being where evidence
only showed parent was incarcerated and other parent’s actions led to child’s
removal); In re K.W., 138 S.W.3d at 431–32 (holding evidence legally insufficient
to support trial court’s finding that parent engaged in conduct or knowingly placed
child with persons who engaged in conduct that endangered child’s physical or
emotional well-being where incarcerated parent did not know of other parent’s
narcotics use or about abuse occurring in other parent’s home).
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude that the trial court could not have formed a firm belief or conviction
that father engaged, or knowingly placed N.L.S. with persons who engaged, in
conduct that endangered N.L.S.’s physical or emotional well-being. See TEX. FAM.
CODE ANN. § 161.001(b)(1)(E); see also Holick v. Smith, 685 S.W.2d 18, 20–21
(Tex. 1985) (courts are required to strictly construe involuntary termination statutes
in favor of parent).
Accordingly, we hold that the evidence is legally insufficient to support the
trial court’s finding that father engaged, or knowingly placed N.L.S. with persons
99
who engaged, in conduct that endangered N.L.S.’s physical or emotional
well-being.79 See TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
We sustain a portion of father’s first issue.80
Conclusion
We affirm the portion of the trial court’s order terminating the parental rights
of mother. We reverse the portion of the trial court’s order terminating the parental
rights of father, and we render judgment denying the petition for termination of
father’s parental rights to N.L.S. Because father did not challenge the portion of the
trial court’s order naming DFPS the sole managing conservator of N.L.S., we affirm
that portion of the trial court’s order.
79
DFPS must support its allegations against a parent by clear and convincing
evidence; a preponderance of evidence or conjecture is not enough. See In re
E.N.C., 384 S.W.3d 796, 809–10 (Tex. 2012) (“Due process commands that courts
apply the clear and convincing evidentiary standard in parental rights termination
cases.”); In re T.S., No. 01-22-00054-CV, 2022 WL 4474277, at *28 (Tex. App.—
Houston [1st Dist.] Sept. 27, 2022, no pet.) (mem. op.). Given the weighty
constitutional interests of the parent involved in a termination-of-parental-rights
proceeding, the interests of the child involved, and the effect that the placement of
the child will have on numerous lives, it is imperative, and consistent with the high
evidentiary standard of proof applicable to these cases, that DFPS fully develop the
evidence at trial. See In re T.S., 2022 WL 4474277, at *28. Only then can the
appellate record be commensurate with the magnitude and finality of a termination
decision. See id.; see also In re B.D.A., 546 S.W.3d 346, 393 (Tex. App.—Houston
[1st Dist.] 2018, pet. denied) (Massengale, J., dissenting on rehearing) (“The law
sets a high evidentiary bar for termination of parental rights. We do not alleviate
the plight of Texas . . . children by lowering that bar and perpetuating diminished
judicial expectations of the proof that must be presented by [DFPS].”).
80
Due to our disposition, we need not address the remaining portion of father’s first
issue or father’s second issue. See TEX. R. APP. P. 47.1.
100
Julie Countiss
Justice
Panel consists of Chief Justice Adams and Justices Hightower and Countiss.
101