In the Interest of J.A.D., a Child v. the State of Texas ( 2024 )


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  •                                   Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-24-00292-CV
    IN THE INTEREST OF J.A.D., a Child
    From the 73rd Judicial District Court, Bexar County, Texas
    Trial Court No. 2022PA01747
    Honorable Raul Perales, Judge Presiding
    Opinion by:       Irene Rios, Justice
    Sitting:          Rebeca C. Martinez, Chief Justice
    Irene Rios, Justice
    Lori Massey Brissette, Justice
    Delivered and Filed: October 16, 2024
    AFFIRMED
    Appellant Mother appeals the trial court’s order terminating her parental rights to her child,
    J.A.D. 1 In her first issue, Mother argues the trial court lost jurisdiction when it did not make the
    required findings to extend the case beyond the one-year deadline. In her second and third issues,
    Mother challenges the sufficiency of the evidence supporting termination of her parental rights
    under statutory grounds (D) and (E). In her fourth issue, Mother challenges the sufficiency of the
    evidence supporting the trial court’s finding that termination was in the child’s best interest. We
    affirm.
    1
    To protect the identity of minor children in an appeal from an order terminating parental rights, we refer to the parents
    as “Father” and “Mother” and we refer to children using their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX.
    R. APP. P. 9.8(b)(2). We also refer to J.A.D. as “the child.”
    04-24-00292-CV
    BACKGROUND
    The Department became involved in the underlying case when J.A.D.’s younger sibling
    died while in Mother’s care. The Department determined Mother was a neglectful parent and had
    a history of drug and alcohol abuse.
    On October 28, 2022, the Department filed a petition seeking termination of Mother’s
    parental rights. The trial court held a bench trial on February 28, 2024. The trial court heard
    testimony from Mother and the Department’s caseworker, Michelle Saldana.
    On March 25, 2024, the trial court signed an order terminating Mother’s parental rights to
    J.A.D. The trial court terminated Mother’s parental rights based on statutory grounds (D), (E),
    (O), and (P) in subsection 161.001(b)(1) of the Texas Family Code. See TEX. FAM. CODE ANN.
    §§ 161.001(b)(1)(D), (E), (O), (P). The trial court also found it was in the child’s best interest to
    terminate Mother’s parental rights. See id. § 161.001(b)(2). Mother appeals.
    JURISDICTION
    In her first issue, Mother argues the trial court’s jurisdiction over the case automatically
    terminated on October 30, 2023 because the trial court did not extend the one-year deadline nor
    did it make the required findings to extend the deadline under section 263.401 of the Texas Family
    Code. See TEX. FAM. CODE ANN. § 263.401. Because trial did not commence until February 28,
    2024, Mother contends the trial court lacked jurisdiction to render the termination order and thus
    the termination order is void.
    Subsection 263.401(a) states:
    (a) Unless the court has commenced the trial on the merits or granted an extension
    under Subsection (b) or (b-1), on the first Monday after the first anniversary of
    the date the court rendered a temporary order appointing the department as
    temporary managing conservator, the court’s jurisdiction over the suit affecting
    the parent-child relationship filed by the department that requests termination
    of the parent-child relationship or requests that the department be named
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    04-24-00292-CV
    conservator of the child is terminated and the suit is automatically dismissed
    without a court order. Not later than the 60th day before the day the suit is
    automatically dismissed, the court shall notify all parties to the suit of the
    automatic dismissal date.
    Id. § 263.401(a). Subsection 263.401(a) “provides that if a trial court fails to commence the trial
    on the merits or grant an extension within one year after the trial court appointed the Department
    as temporary managing conservator, the trial court’s jurisdiction terminates, and the case is
    automatically dismissed.” In re G.X.H., 
    627 S.W.3d 288
    , 296 (Tex. 2021).
    Subsection 263.401(b) “sets forth the circumstances in which the automatic dismissal
    date—and thus the trial court’s jurisdiction over the suit—may be extended.” 
    Id. at 296
    . It
    provides:
    (b) Unless the court has commenced the trial on the merits, the court may not retain
    the suit on the court’s docket after the time described by Subsection (a) unless
    the court finds that extraordinary circumstances necessitate the child remaining
    in the temporary managing conservatorship of the department and that
    continuing the appointment of the department as temporary managing
    conservator is in the best interest of the child. If the court makes those findings,
    the court may retain the suit on the court’s docket for a period not to exceed 180
    days after the time described by Subsection (a). If the court retains the suit on
    the court’s docket, the court shall render an order in which the court:
    (1) schedules the new date on which the suit will be automatically dismissed if
    the trial on the merits has not commenced, which date must be not later than
    the 180th day after the time described by Subsection (a);
    (2) makes further temporary orders for the safety and welfare of the child as
    necessary to avoid further delay in resolving the suit; and
    (3) sets the trial on the merits on a date not later than the date specified under
    Subdivision (1).
    TEX. FAMILY CODE ANN. § 263.401(b).
    “[W]hile a trial court’s failure to timely extend the automatic dismissal date before that
    date passes—through a docket-sheet notation or otherwise—is jurisdictional, claimed defects
    relating to the other requirements of [subsection] 263.401(b) are not.” G.X.H., 627 S.W.3d at 301.
    “Accordingly, with the exception of a trial court’s failure to extend the automatic dismissal date
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    04-24-00292-CV
    before it passes, complaints regarding the trial court’s compliance with the requirements in
    subsection (b) must be preserved for appellate review.” Id. “[T]rial courts are empowered to make
    [section 263.401] findings in writing in a separate instrument or orally in the presence of a court
    reporter.” Id. at 299.
    Here, the first automatic dismissal date was October 30, 2023. The parties initially
    appeared for trial on October 25, 2023. Mother announced not ready and requested an extension
    so she would have more time to complete services. The reporter’s record reflects the trial court
    expressly granted the extension pursuant to subsection 263.401(b) and the Department stated the
    new dismissal date would be April 25, 2024. Thus, on October 25, 2023, the trial court extended
    the October 30, 2023 dismissal date to April 25, 2024. Accordingly, Mother’s complaint—that
    the trial court did not extend the automatic dismissal date before that date passed—lacks merit.
    Mother also argues the trial court lost jurisdiction because it did not make the required
    findings “that extraordinary circumstances necessitate the child remaining in the temporary
    managing conservatorship of the department and that continuing the appointment of the
    department as temporary managing conservator is in the best interest of the child.” TEX. FAM.
    CODE ANN. § 263.401(b). As mentioned above, a trial court’s failure to timely extend the
    automatic dismissal date is jurisdictional, but “claimed defects relating to the other requirements
    of [subsection] 263.401(b) are not.” In re J.S., 
    670 S.W.3d 591
    , 603 (Tex. 2023) (quoting G.X.H.,
    627 S.W.3d at 301). “The ‘other’ non-jurisdictional requirements of [subsection] 263.401(b)
    include all the requirements of that subsection except the requirement that the trial court grant an
    extension of the initial automatic dismissal date before it passes—a requirement that also appears
    in subsection (a), which does contain jurisdictional language.” J.S., 670 S.W.3d at 603–04. “Thus,
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    04-24-00292-CV
    although subsection (b)’s requirements that the trial court make the ‘extraordinary circumstances’
    and ‘best interest’ findings are mandatory, they are not jurisdictional.” Id. at 604.
    Because the “extraordinary circumstances” and “best interest” findings are non-
    jurisdictional requirements, Mother must have complained of the trial court’s ruling omitting these
    findings via a timely request, objection, or motion to preserve the error for appeal. See G.X.H.,
    627 S.W.3d at 301; TEX. R. APP. P. 33.1(a)(1)(A); see also J.S., 670 S.W.3d at 605 (holding a
    parent could not present her complaint for appellate review because the parent “did not timely
    apprise the trial court of her complaint that it failed to make the required ‘extraordinary
    circumstances’ finding when it extended the automatic dismissal deadline”). Here, Mother did not
    object to the trial court’s failure to comply with the requirement to make the non-jurisdictional
    findings, and “that error cannot be addressed for the first time on appeal.” J.S., 670 S.W.3d at 606.
    Therefore, Mother has failed to preserve the issue for appeal.
    Accordingly, Mother’s first issue is overruled.
    STATUTORY REQUIREMENTS AND STANDARD OF REVIEW
    To terminate parental rights pursuant to section 161.001 of the Texas Family Code, the
    Department has the burden to prove by clear and convincing evidence: (1) one of the predicate
    grounds in subsection 161.001(b)(1); and (2) that termination is in the best interest of the child.
    TEX. FAM. CODE ANN. § 161.001(b). Clear and convincing evidence requires “proof that will
    produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations
    sought to be established.” Id. § 101.007.
    When reviewing the sufficiency of the evidence, we apply well-established standards of
    review.     See id. §§ 101.007, 161.206(a); In re H.R.M., 
    209 S.W.3d 105
    , 108 (Tex. 2006)
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    04-24-00292-CV
    (conducting a factual sufficiency review); In re J.P.B., 
    180 S.W.3d 570
    , 573 (Tex. 2005)
    (conducting a legal sufficiency review).
    “In reviewing the legal sufficiency of the evidence to support the termination of parental
    rights, we must ‘look at all the evidence in the light most favorable to the finding to determine
    whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was
    true.’” In re J.L.B., No. 04-17-00364-CV, 
    2017 WL 4942855
    , at *2 (Tex. App.—San Antonio
    Nov. 1, 2017, pet. denied) (mem. op.) (quoting In re J.F.C., 
    96 S.W.3d 256
    , 266 (Tex. 2002)).
    “[A] reviewing court must assume that the factfinder resolved disputed facts in favor of its finding
    if a reasonable factfinder could do so.” J.F.C., 96 S.W.3d at 266. “A corollary to this requirement
    is that a [reviewing] court should disregard all evidence that a reasonable factfinder could have
    disbelieved or found to have been incredible.” Id.
    “In reviewing the factual sufficiency of the evidence to support the termination of parental
    rights, we ‘must give due consideration to evidence that the factfinder could reasonably have found
    to be clear and convincing.’” J.L.B., 
    2017 WL 4942855
    , at *2 (quoting J.F.C., 96 S.W.3d at 266).
    “A [reviewing court] should consider whether disputed evidence is such that a reasonable
    factfinder could not have resolved that disputed evidence in favor of its finding.” J.F.C.,
    96 S.W.3d at 266. “The [reviewing] court must hold the evidence to be factually insufficient if, in
    light of the entire record, the disputed evidence contrary to the judgment is so significant that a
    reasonable factfinder could not have resolved that disputed evidence in favor of the ultimate
    finding.” In re M.T.C., No. 04-16-00548-CV, 
    2017 WL 603634
    , at *2 (Tex. App.—San Antonio
    Feb. 15, 2017, no pet.) (mem. op.).
    Further, in a bench trial, the trial court is the sole judge of the credibility of witnesses and
    the weight to be given their testimony. In re J.F.-G., 
    627 S.W.3d 304
    , 312, 317 (Tex. 2021). This
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    04-24-00292-CV
    is because “the trial judge is best able to observe and assess the witnesses’ demeanor and
    credibility, and to sense the ‘forces, powers, and influences’ that may not be apparent from merely
    reading the record on appeal.”      Coburn v. Moreland, 
    433 S.W.3d 809
    , 823 (Tex. App.—
    Austin 2014, no pet.) (quoting In re A.L.E., 
    279 S.W.3d 424
    , 427 (Tex. App.—Houston [14th
    Dist.] 2009, no pet.)). We, therefore, defer to the trial court’s factual determinations and judgment
    regarding credibility. J.F.-G., 627 S.W.3d at 312; see also In re R.R.A., 
    687 S.W.3d 269
    , 279 n.50
    (Tex. 2024) (“Reviewing courts, however, must defer to the factfinder’s judgment as to the
    credibility of the witnesses and the weight to give their testimony, including reasonable and logical
    inferences from the evidence.”).
    STATUTORY GROUNDS FOR TERMINATION
    In her second and third issues, Mother argues there is insufficient evidence to support the
    trial court’s findings under statutory grounds (D) and (E).
    Only one predicate ground finding under section 161.001(b)(1) is necessary to support a
    termination judgment when there is also a finding that termination is in the child’s best interest.
    In re A.V., 
    113 S.W.3d 355
    , 362 (Tex. 2003). Therefore, our analysis is usually complete if we
    conclude that the evidence is sufficient to support any single predicate ground. Because the
    findings under subsection 161.001(b)(1)(D) and (E) have consequences for termination of parental
    rights as to other children, termination on these grounds implicates significant due process
    concerns for Mother.      TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (E), (M); In re N.G.,
    
    577 S.W.3d 230
    , 234 (Tex. 2019). Due process requires us to review the trial court’s findings
    under both subsections 161.001(b)(1)(D) and (E) of the Texas Family Code. See N.G., 577 S.W.3d
    at 235–36; see also R.R.A., 687 S.W.3d at 279 (“Although termination under (P) is sufficient to
    reverse the judgment of the court of appeals, we must also review termination under subsections
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    04-24-00292-CV
    (D) and (E) because a finding of termination under those grounds may justify termination of
    parental rights to other children in subsection (M).”); In re J.W., 
    645 S.W.3d 726
    , 748 (Tex. 2022)
    (“[W]e may not bypass Father’s evidentiary challenges to [s]ubsections (D) and (E) . . . because
    termination of a parent’s rights under either can serve as a ground for termination of his rights to
    another child.”).
    Here, the trial court found evidence Mother “knowingly placed or knowingly allowed the
    child to remain in conditions or surroundings which endanger the physical or emotional well-being
    of the child . . . [and] engaged in conduct or knowingly placed the child with persons who engaged
    in conduct which endangers the physical or emotional well-being of the child . . . .” See TEX. FAM.
    CODE ANN. § 161.001(b)(1)(D), (E). To endanger a child under subsections (D) and (E) means to
    expose the child to loss or injury or to jeopardize the child’s emotional or physical health. See
    J.W., 645 S.W.3d at 748; In re S.R., 
    452 S.W.3d 351
    , 360 (Tex. App.—Houston [14th Dist.] 2014,
    pet. denied). “Although endanger means more than a threat of metaphysical injury or the possible
    ill effects of a less-than-ideal family environment, it does not require that there be conduct directed
    at the child or that the child actually suffer injury.” J.W., 645 S.W.3d at 748 (internal quotation
    marks and alterations omitted).
    Though both subsections (D) and (E) focus on endangerment, they differ regarding the
    source and proof of endangerment. In re A.B.R., No. 04-19-00631-CV, 
    2020 WL 1159043
    , at *2
    (Tex. App.—San Antonio Mar. 11, 2020, pet. denied) (mem. op.). Subsection (D) concerns the
    child’s living environment, rather than the conduct of the parent, though parental conduct is
    certainly relevant to the child’s environment. In re J.T.G., 
    121 S.W.3d 117
    , 125 (Tex. App.—Fort
    Worth 2003, no pet.). Under subsection (E), the cause of the endangerment must be the parent’s
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    04-24-00292-CV
    conduct and must be the result of a conscious course of conduct rather than a single act or omission.
    
    Id.
    “While illegal drug use alone may not be sufficient to show endangerment, a pattern of
    drug use accompanied by circumstances that indicate related dangers to the child can establish a
    substantial risk of harm.” R.R.A., 687 S.W.3d at 278. “A reviewing court should not evaluate
    drug-use evidence in isolation; rather it should consider additional evidence that a factfinder could
    reasonably credit that demonstrates that illegal drug use presents a risk to the parent’s ‘ability to
    parent.’” Id.
    1. Statutory Subsection D
    Subsection (D) allows for termination of parental rights if the parent “knowingly placed or
    knowingly allowed the child to remain in conditions or surroundings which endanger the physical
    or emotional well-being of the child[.]” TEX. FAM. CODE ANN. § 161.001(b)(1)(D). The child’s
    “environment” encompasses the suitability of the child’s living conditions and the conduct of
    parents or others in the home. S.R., 
    452 S.W.3d at 360
    . “Inappropriate, abusive, or unlawful
    conduct by a parent or other persons who live in the child’s home can create an environment that
    endangers the physical and emotional well-being of a child as required for termination under
    subsection D.” In re R.S.-T., 
    522 S.W.3d 92
    , 109 (Tex. App.—San Antonio 2017, no pet.). “[A]
    parent need not know for certain that the child is in an endangering environment; awareness of
    such a potential is sufficient.” 
    Id.
     Subsection (D) permits termination based upon only a single
    act or omission. In re R.D., 
    955 S.W.2d 364
    , 367 (Tex. App.—San Antonio 1997, pet. denied).
    Under Subsection (D), the trial court examines “evidence related to the environment of the
    child[] to determine if the environment was the source of endangerment to the [child’s] physical
    or emotional well-being.” J.T.G., 121 S.W.3d at 125. Parental conduct, however, is a factor that
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    04-24-00292-CV
    contributes to the child’s environment. Id. The time period relevant to a review of conduct and
    environment under statutory ground (D) is prior to the child’s removal. In re J.R., 
    171 S.W.3d 558
    , 569 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
    Here, the trial court heard testimony that Mother has abused illegal drugs since she was
    pregnant with J.A.D. See In re J.A.B., No. 04-23-00907-CV, 
    2024 WL 1421986
    , at *2 (Tex.
    App.—San Antonio Apr. 3, 2024, pet. denied) (mem. op.) (“Parental and caregiver illegal drug
    use and drug-related criminal activity likewise support[] the conclusion that the children’s
    surroundings endanger their physical or emotional well-being.”). Mother admitted J.A.D. tested
    positive for drugs when he was born, supporting an inference that Mother’s illegal drug use
    exposed J.A.D. to conditions or surroundings that endangered his physical or emotional well-
    being. See In re A.M.A., No. 13-22-00011-CV, 
    2022 WL 1110993
    , at *4 (Tex. App.—Corpus
    Christi–Edinburg Apr. 14, 2022, no pet.) (mem. op.) (holding Mother’s illegal drug use throughout
    her pregnancy and a drug-positive child at birth supports a finding that Mother knowingly placed
    the child in conditions or surroundings that endangered the child); see also J.W., 645 S.W.3d at
    749 (agreeing “that a parent’s knowledge of the other parent’s drug use during pregnancy and
    corresponding failure to attempt to protect the unborn child from the effects of that drug use can
    contribute to an endangering environment and thus support an endangerment finding”). 2 In May
    2022, Mother gave birth to another child who tested positive for drugs. That child subsequently
    died prompting the Department to remove J.A.D. from the home. 3 In its investigation into the
    child’s death, the Department found Mother was a neglectful parent due to her drug and alcohol
    2
    We recognize that the supreme court in In re J.W. was reviewing whether the father of the child took steps to protect
    the child from the mother’s illegal drug use while the child was in the womb. In re J.W., 
    645 S.W.3d 726
    , 749–50
    (Tex. 2022). However, the holding in In re J.W. that is relevant to this case is that the mother’s womb can be an
    endangering environment if the child is exposed to illegal drugs in utero.
    3
    The record does not reflect when J.A.D.’s younger sibling died. The sibling was born in May 2022 and J.A.D. was
    removed from Mother’s care five months later in October 2022.
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    04-24-00292-CV
    use. Based on this evidence the trial court could have formed a firm belief or conviction that
    Mother’s drug and alcohol abuse created a dangerous environment that led to the death of J.A.D.’s
    younger sibling. See R.S.-T., 
    522 S.W.3d at 109
    . Though there was no direct testimony on the
    matter, the trial court could have inferred that J.A.D. was also in Mother’s care when his younger
    sibling died because the Department subsequently removed J.A.D. from Mother’s care when it
    was investigating the sibling’s death. As such, the trial court could have concluded J.A.D. was
    also exposed to the endangering conditions that led to the younger sibling’s death.
    2. Statutory Subsection E
    Subsection (E) permits termination if the parent has “engaged in conduct or knowingly
    placed the child with persons who engaged in conduct which endangers the physical or emotional
    well-being of the child[.]” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The trial court must
    determine “whether evidence exists that the endangerment of the child’s physical well-being was
    the direct result of [the parent’s] conduct, including acts, omissions, or failures to act.” In re M.E.-
    M.N., 
    342 S.W.3d 254
    , 262 (Tex. App.—Fort Worth 2011, pet. denied). “Courts may further
    consider parental conduct that did not occur in the child’s presence, including conduct before the
    child’s birth or after he was removed from a parent’s care.” A.B.R., 
    2020 WL 1159043
    , at *3.
    “[E]ndangering conduct is not limited to actions directed towards the child.” J.O.A., 283 S.W.3d
    at 345.
    “Conduct that subjects a child to a life of uncertainty and instability endangers the physical
    and emotional well-being of a child.” In re D.F.S., No. 04-20-00441-CV, 
    2021 WL 603364
    , at *4
    (Tex. App.—San Antonio Feb. 17, 2021, pet denied) (mem. op.). “Thus, evidence of illegal drug
    use by a parent and its effect on a parent’s life and her ability to parent may establish an
    endangering course of conduct under subsection (E).” 
    Id.
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    04-24-00292-CV
    Here, the evidence supporting the trial court’s finding under statutory ground (D) also
    supports the trial courts finding under statutory ground (E). As mentioned above, the trial court
    heard testimony that Mother has struggled with drug addiction since before J.A.D. was born. See
    J.T.G., 121 S.W.3d at 125 (“A mother’s use of drugs during pregnancy may amount to conduct
    that endangers the physical and emotional well-being of the child.”). “Evidence that a parent
    continued to use illegal drugs even though the parent knew her parental rights were at risk is
    conduct showing a voluntary, deliberate, and conscious course of conduct, which by its nature
    endangers a child’s well-being.” A.L.S., 660 S.W.3d at 271. J.A.D.’s younger sibling died while
    in Mother’s care and the Department determined Mother was a neglectful parent due to her drug
    and alcohol use. In re A.A.M., 
    464 S.W.3d 421
    , 426 (Tex. App.—Houston [1st Dist.] 2015, no
    pet.) (“Illegal drug use creates the possibility that the parent will be impaired or imprisoned and
    thus incapable of parenting.”). At trial, Mother admitted she was drinking alcohol when the
    younger sibling died. She also admitted she had relapsed into using methamphetamines prior to
    the child’s death. The trial court could have reasonably inferred that Mother’s course of conduct
    that endangered J.A.D.’s younger sibling also endangered J.A.D. See J.O.A., 283 S.W.3d at 345
    (“[E]ndangering conduct is not limited to actions directed towards the child.”); A.A.M.,
    
    464 S.W.3d at 426
     (“Drug abuse and its effect on the ability to parent can be part of an endangering
    course of conduct.”).
    Mother attended three different drug treatment programs while the case was pending. She
    did not successfully complete the first two drug treatment programs.           Mother successfully
    completed the third drug treatment program and it was recommended that she move to a “sober
    living” home after she left the rehab facility. Mother testified she went to a sober living home but
    voluntarily left after only a week because she “listened to [her] boyfriend at the time[.]”
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    04-24-00292-CV
    During the initial trial setting on October 25, 2023, the trial court granted Mother’s oral
    motion to continue the case and ordered Mother to take a drug test within twenty-four hours.
    Mother conceded she did not take the drug test. The trial court heard testimony that the Department
    had referred Mother to nine drug tests since the October 25, 2023 trial setting. Saldana testified
    that Mother did not report to any of the drug tests. Saldana further testified Mother had reported
    the month before trial that she was using one gram of methamphetamines per day and she last used
    drugs on the Thursday before trial. When asked whether Mother is currently using drugs, Mother
    responded: “No.     But I have.      I did relapse.”     Mother later admitted she was taking
    methamphetamines during the pendency of the case and had been clean for only two weeks prior
    to trial. Based on this evidence, the trial court could have reasonably inferred that Mother’s
    continued struggle with drug abuse affects her ability to parent and creates a substantial risk that
    she will be unable to care for J.A.D. due to her impairment. Thus, the trial court could have formed
    a firm belief or conviction that Mother’s course of conduct endangered J.A.D.’s physical and
    emotional well-being. See R.R.A., 687 S.W.3d at 278 (“[A] pattern of parental behavior that
    presents a substantial risk of harm to the child permits a factfinder to reasonably find
    endangerment.”); D.F.S., 
    2021 WL 603364
    , at *4 (“[A] pattern of drug abuse will support a finding
    of conduct endangering a child even if there is no evidence that the drug use injured the child.”).
    The trial court also heard testimony from Mother that she has pending criminal charges
    against her for unauthorized use of a motor vehicle and possession of controlled substances. These
    charges also constitute a violation of her probation stemming from a previous charge for felony
    possession of controlled substances, and Mother indicated the State was moving to revoke her
    probation. A.A.M., 
    464 S.W.3d at 426
     (“Drug use and the imprisonments relating to it harm the
    physical and emotional well-being of a child.”).
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    04-24-00292-CV
    Having reviewed the record and considered all the evidence in the appropriate light for
    each standard of review, we conclude the trial court could have formed a firm belief or conviction
    that Mother “knowingly placed or knowingly allowed the child to remain in conditions or
    surroundings which endanger the physical or emotional well-being of the child . . . [and] engaged
    in conduct . . . which endangers the physical or emotional well-being of the child.” TEX. FAM.
    CODE ANN. §§ 161.001(b)(1)(D), (E); see also H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at
    573. Therefore, we hold the evidence is legally and factually sufficient to support the trial court’s
    subsection (D) and (E) findings.
    Accordingly, Mother’s second and third issues are overruled.
    BEST INTEREST
    In her fourth issue, Mother argues the evidence is legally and factually insufficient to
    support a finding that termination of her parental rights is in J.A.D.’s best interest.
    When considering the best interest of a child, we recognize the existence of a strong
    presumption that the child’s best interest is served by preserving the parent-child relationship. In
    re R.R., 
    209 S.W.3d 112
    , 116 (Tex. 2006). However, we also presume that prompt and permanent
    placement of the child in a safe environment is in the child’s best interest. TEX. FAM. CODE ANN.
    § 263.307(a).
    In determining whether a parent is willing and able to provide the child with a safe
    environment, we consider the factors set forth in section 263.307(b) of the Texas Family Code. 4
    4
    These factors include:
    (1) the child’s age and physical and mental vulnerabilities; (2) the frequency and nature of out-of-
    home placements; (3) the magnitude, frequency, and circumstances of the harm to the child;
    (4) whether the child has been the victim of repeated harm after the initial report and intervention
    by the department; (5) whether the child is fearful of living in or returning to the child’s home;
    (6) the results of psychiatric, psychological, or developmental evaluations of the child [or] the
    child’s parents . . . ; (7) whether there is a history of abusive or assaultive conduct by the child’s
    - 14 -
    04-24-00292-CV
    See id. § 263.307(b). We also consider the Holley factors. 5 See Holley v. Adams, 
    544 S.W.2d 367
    ,
    371–72 (Tex. 1976). These factors are not exhaustive. In re C.H., 
    89 S.W.3d 17
    , 27 (Tex. 2002).
    “The absence of evidence about some of these considerations would not preclude a factfinder from
    reasonably forming a strong conviction or belief that termination is in the child’s best interest,
    particularly if the evidence were undisputed that the parental relationship endangered the safety of
    the child.” 
    Id.
     In analyzing these factors, we must focus on the best interest of the child, not the
    best interest of the parent. Dupree v. Tex. Dep’t of Protective & Regul. Servs., 
    907 S.W.2d 81
    , 86
    (Tex. App.—Dallas 1995, no writ).
    Evidence that proves one or more statutory ground for termination may also constitute
    evidence illustrating that termination is in the child’s best interest. C.H., 89 S.W.3d at 28 (holding
    same evidence may be probative of both section 161.001(b)(1) grounds and best interest, but such
    evidence does not relieve the State of its burden to prove best interest). “A best-interest analysis
    may consider circumstantial evidence, subjective factors, and the totality of the evidence as well
    as the direct evidence.” See In re E.D., 
    419 S.W.3d 615
    , 620 (Tex. App.—San Antonio 2013, pet.
    family or others who have access to the child’s home; (8) whether there is a history of substance
    abuse by the child’s family or others who have access to the child’s home; (9) whether the
    perpetrator of the harm to the child is identified; (10) the willingness and ability of the child’s family
    to seek out, accept, and complete counseling services and to cooperate with and facilitate an
    appropriate agency’s close supervision; (11) the willingness and ability of the child’s family to
    effect positive environmental and personal changes within a reasonable period of time; (12) whether
    the child’s family demonstrates adequate parenting skills . . . ; and (13) whether an adequate social
    support system . . . is available to the child.
    TEX. FAM. CODE ANN. § 263.307(b).
    5
    These factors include: (1) the child’s desires; (2) the child’s present and future emotional and physical needs; (3) any
    present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking
    custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6) the
    plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement;
    (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper; and
    (9) any excuse for the parent’s acts or omissions. Holley v. Adams, 
    544 S.W.2d 367
    , 371–72 (Tex. 1976); see also In
    re E.C.R., 
    402 S.W.3d 239
    , 249 n.9 (Tex. 2013).
    - 15 -
    04-24-00292-CV
    denied). “A trier of fact may measure a parent’s future conduct by his past conduct and determine
    whether termination of parental rights is in the child’s best interest.” 
    Id.
    “Illicit drug use is relevant to multiple Holley factors, including the child[]’s emotional and
    physical needs now and in the future, the emotional and physical danger to the child[] now and in
    the future, Mother’s parental abilities, the stability of Mother’s home, and the acts or omissions
    which may indicate an improper parent-child relationship.” In re A.N., No. 04-19-00584-CV, 
    2020 WL 354773
    , at *3 (Tex. App.—San Antonio Jan. 22, 2020, no pet.) (mem. op.). As mentioned in
    the statutory grounds section, Mother has not been able to show sobriety throughout the case and
    has struggled with drug abuse since before J.A.D. was born. “Continued illegal drug use by the
    parent is conduct that jeopardizes parental rights and may be considered as establishing an
    endangering course of conduct, and that termination is in the best interest of the child.” In re
    J.S.R., No. 04-21-00517-CV, 
    2022 WL 1559107
    , at *4 (Tex. App.—San Antonio May 18, 2022,
    pet. denied) (mem. op.) (alterations omitted). The trial court could have reasonably formed a firm
    belief or conviction that termination of Mother’s parental rights was in J.A.D.’s best interest
    because Mother’s drug addiction would continue to render her unable to provide for J.A.D. See
    TEX. FAM. CODE ANN. § 263.307(b)(8) (stating a parent’s history of substance is a factor
    considered by the trial court in determining the child’s best interest).
    Moreover, Mother is facing two criminal charges and indicated the State was moving to
    revoke her probation for a prior possession of a controlled substance charge. See In re G.V.S.,
    No. 04-18-00563-CV, 
    2018 WL 6624398
    , at *4 (Tex. App.—San Antonio Dec. 19, 2018, pet.
    denied) (mem. op.) (“A parent’s criminal activities and history are also relevant to a best interest
    analysis—specifically to the emotional and physical danger to the child.”).             “[R]outinely
    subjecting a child to the probability that [the child] will be left alone because [the child’s] parent
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    04-24-00292-CV
    is in jail endangers the child’s physical and emotional well-being.” In re R.M.H., No. 04-23-
    00765-CV, 
    2023 WL 8103188
    , at *4 (Tex. App.—San Antonio Nov. 22, 2023, no pet.) (mem.
    op.).
    In addition to the evidence regarding Mother’s drug addiction and criminal history, the trial
    court also heard evidence that Mother failed to complete all the services on her service plan. See
    In re E.C.R., 
    402 S.W.3d 239
    , 249 (Tex. 2013) (concluding evidence that a parent’s failure to
    comply with the court-ordered service plan may also support the trial court’s best-interest
    determination); In re A.H., No. 04-15-00416-CV, 
    2015 WL 7565569
    , at *9 (Tex. App.—San
    Antonio Nov. 25, 2015, no pet.) (mem. op.) (holding failure to complete family service plan is
    indicative of failure to prioritize child). Mother’s service plan, which was admitted into evidence,
    provided that Mother was to maintain stable employment and housing, participate and complete a
    parenting class and domestic violence class, submit to random drug testing, successfully complete
    a drug assessment and follow recommendations from the assessment, participate and complete a
    psychological evaluation, and participate in counseling. Mother signed the plan and testified she
    knew the plan was made an order of the court and that failure to comply with her service plan
    could result in termination of her parental rights. Mother conceded, and Saldana verified, Mother
    was not in compliance with her service plan.
    When asked what services Mother successfully completed, Mother testified she
    successfully completed the parenting class, drug treatment, and that she took an autistic learning
    course. As mentioned above, Mother did not successfully complete her first two attempts at drug
    treatment, but she did complete her third attempt. However, Mother admitted she did not follow
    through on the recommendation to go to a sober living home and the trial court heard evidence
    that Mother relapsed after drug treatment.
    - 17 -
    04-24-00292-CV
    Mother testified she was unsuccessfully discharged from counseling and did not complete
    her domestic violence classes despite having a history of domestic violence. See TEX. FAM. CODE
    ANN. § 263.307(b)(10) (stating the trial court considers in its best-interest determination the
    parent’s willingness and ability “to seek out, accept, and complete counseling services”); see also
    A.H., 
    2015 WL 7565569
    , at *7 (concluding a parent’s failure to address domestic violence exposes
    the child to potential future emotional and physical danger and thus supports a finding that
    termination of parental rights is in the child’s best interest). At first, Mother stated she was kicked
    off the waiting list for domestic violence classes three times because she went into rehab. Then,
    she stated she was at fault two of the times because she was late to the class and the provider
    rescheduled.
    Saldana testified Mother is not currently employed. Although not a requirement under her
    plan, Mother testified she is prescribed psychotropic medications to address her mental health.
    However, Mother stated she is not in compliance with her psychiatric treatment and medication
    schedule. See In re M.R.P., No. 04-22-00312-CV, 
    2022 WL 6815173
    , at *6 (Tex. App.—San
    Antonio Oct. 12, 2022, pet. denied) (mem. op.) (“A parent’s refusal to acknowledge and treat a
    mental health diagnosis can support a finding that termination is in a child’s best interest.”).
    The trial court heard testimony that J.A.D. is diagnosed with “[a]utism, unspecified
    intellectual disability, and child neglect” and requires a specialized level of care. TEX. FAM. CODE
    ANN. §§ 263.307(b)(1), (6) (providing the trial court consider the child’s physical and mental
    vulnerabilities and the results of psychiatric, psychological, or developmental evaluations of the
    child when considering the child’s best interest). J.A.D. is nonverbal but will communicate with
    certain people. He has been receiving speech therapy, occupational therapy, and play therapy since
    coming into the Department’s care. Mother testified she learned from the autistic learning course
    - 18 -
    04-24-00292-CV
    how children with autism receive information, how they like to be “loners,” and “how sensitive
    they are with different things.” However, Saldana testified Mother was unable to apply what she
    learned in the autistic learning classes during her visits with J.A.D.
    Saldana and Mother both testified that J.A.D. has a bond with mother. Mother attended
    eighteen out of twenty-five visits and testified she takes clothing, snacks, and activities to interact
    and play with J.A.D. during the visits. However, Saldana testified J.A.D. seems angry with Mother
    at visits and is unable to verbalize it. Saldana witnessed visits with Mother where J.A.D. scratched,
    hit, and spit out his food and drink. During one visit, J.A.D. ripped out Mother’s earring and threw
    it across the room. Mother acknowledged that J.A.D. slapped Mother in the face during a visit.
    In contrast, Saldana testified J.A.D. does not have any problems at school or at the shelter
    where he was staying at the time of trial. Saldana stated J.A.D. “eats well; sleeps well;” and “he
    plays well with others.” She further testified J.A.D. likes to go outside, play on the playground,
    and enjoys puzzles and other activities that require using his hands.
    Although J.A.D. was living in a shelter at the time of trial, Saldana testified the Department
    was placing him in a foster-to-adopt home that day. The foster family is aware of J.A.D.’s
    behaviors and needs and has met with J.A.D. According to Saldana, the meeting with the foster
    family went well. J.A.D. did not exhibit the negative behaviors he shows when he is with Mother
    and he even “used a couple of words during the visit when [the foster family was] communicating
    with him.” One of the foster parents is a school principal and will be able to assist with educational
    needs and has received training to deal with children diagnosed with autism. See In re S.D., 
    980 S.W.2d 758
    , 764 (Tex. App.—San Antonio 1998, pet. denied) (holding it was in the children’s
    best interests to place them “in a stable environment where they can receive proper care for their
    special needs”).
    - 19 -
    04-24-00292-CV
    Saldana opined termination of Mother’s parental rights was in J.A.D.’s best interest
    because Mother is unable to provide J.A.D. with his basic needs and has not shown the ability to
    improve with additional time. In contrast, Saldana testified the foster family will be able to meet
    J.A.D.’s needs and provide him with a permanent home.
    Although the trial court heard some evidence that J.A.D. shares a bond with Mother, there
    was overwhelming evidence that Mother may still pose a danger to J.A.D. due to her inability to
    overcome her drug addiction and her failure to take the necessary steps to show she can provide
    J.A.D. with his basic needs. And, while the trial court heard evidence J.A.D. had been living in a
    shelter, it also heard evidence that J.A.D. was being placed with a foster-to-adopt family on the
    day of trial. Having reviewed the record and considered all the evidence in the appropriate light
    for each standard of review, we conclude the trial court could have formed a firm belief or
    conviction that termination of Mother’s parental rights was in J.A.D.’s best interest. See 
    id.
    § 161.001(b)(2); H.R.M., 209 S.W.3d at 108; J.P.B., 180 S.W.3d at 573; see also generally In re
    A.B., 
    437 S.W.3d 498
    , 503 (Tex. 2014) (recognizing a reviewing court need not detail the evidence
    if affirming a termination judgment). Therefore, we hold the evidence is legally and factually
    sufficient to support the trial court’s best-interest finding.
    Accordingly, Mother’s fourth issue is overruled.
    CONCLUSION
    We affirm the trial court’s order terminating Mother’s parental rights to the child.
    Irene Rios, Justice
    - 20 -
    

Document Info

Docket Number: 04-24-00292-CV

Filed Date: 10/16/2024

Precedential Status: Precedential

Modified Date: 10/22/2024