in the Interest of K.S., a Child

IN THE
TENTH COURT OF APPEALS
No. 10-22-00070-CV
IN THE INTEREST OF K.S., A CHILD
From the 85th District Court
Brazos County, Texas
Trial Court No. 21-000245-CV-85
MEMORANDUM OPINION
Mother appeals from the trial court’s order terminating her parental rights to her
child, K.S.1 After hearing all the evidence, the trial court found by clear and convincing
evidence that Mother (1) knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endanger the child, (2) engaged in conduct or knowingly
placed the child with persons who engaged in conduct that endangers the child, and (3)
failed to comply with the provisions of a court order that specifically established the
actions necessary to obtain the return of the child. TEX. FAM. CODE ANN. § 161.001 (b) (1)
(D) (E) (O)(West). The trial court further found by clear and convincing evidence that
1 The father of K.S. is not a party to this appeal.
termination was in the best interest of the child. TEX. FAM. CODE ANN. § 161.001 (b) (2)
(West). We affirm.
MOTION TO RETAIN
In the first issue, Mother complains that the trial court abused its discretion in
failing to grant her motion to extend the case. Section 263.401 of the Texas Family Code
provides that unless the Court has commenced the trial on the merits or granted an
extension, 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 is terminated and the suit is automatically dismissed
without a court order. TEX. FAM. CODE ANN. § 263.401 (a) (West).
The trial court signed a temporary order appointing the Department as temporary
managing conservator of K.S. on January 29, 2021. Therefore, the trial court’s jurisdiction
over the suit would be terminated on January 31, 2022, and the suit automatically
dismissed. On December 30, 2021, Mother filed her Motion to Retain Suit on Court’s
Docket and Set New Dismissal Date.
We review a trial court's decision to grant or deny an extension of the dismissal
date under an abuse of discretion standard. In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.
—Fort Worth 2012, pet. denied). The focus on granting this extension "is on the needs of
the child, whether extraordinary circumstances necessitate the child remaining in the
In the Interest of K.S. Page 2
temporary custody of the Department, and whether continuing such is in the best interest
of the child." Id.Section 263.401 (b) sets out the circumstances in which the automatic dismissal
date--and thus the trial court's jurisdiction over the suit--may be extended.
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:
TEX. FAM. CODE ANN. § 263.401 (b) (West).
When considering under Subsection (b) whether to find that
extraordinary circumstances necessitate the child remaining in the
temporary managing conservatorship of the department for a case in which
the court orders a parent to complete a substance abuse treatment program,
the court shall consider whether the parent made a good faith effort to
successfully complete the program.
TEX. FAM. CODE ANN. § 263.401 (b-2) (West).
The trial court found that Mother did not make a good faith effort to complete her
service plan. Mother argues that she requested the extension to allow her the opportunity
to complete inpatient drug treatment as required by her service plan. Mother initially
chose not to participate in inpatient treatment. She missed intake appointments and
indicated she did not want to go to inpatient treatment. Later on, Mother indicated that
In the Interest of K.S. Page 3
she did want to go to inpatient treatment in order to get K.S. back. However, she did not
meet the admission requirements for inpatient treatment because she told the facility she
had not used drugs. Mother had positive drug tests during the time she told the facility
she had not used drugs. Mother began outpatient drug treatment in September 2021;
however, she missed many of her treatment sessions. We cannot say that the trial court
abused its discretion in finding that Mother did not make a good faith effort to complete
her service plan. We overrule the first issue.
SUFFICIENCY OF THE EVIDENCE
In issues two and three Mother argues that the evidence is insufficient to support
the trial court’s predicate parental termination findings under Section 161.001 (b) (1) (D)
and (E) of the Texas Family Code. In the fourth issue, Mother argues that the evidence is
insufficient to support the trial court’s findings under Section 161.001 (b) (1) (O). Only
one predicate act under section 161.001 (b) (1) is necessary to support a judgment of
termination in addition to the required finding that termination is in the child's best
interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). In conducting a legal sufficiency
review in a parental termination case:
[A] court should 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. To give appropriate
deference to the factfinder's conclusion and the role of a court conducting a
legal sufficiency review, looking at the evidence in the light most favorable
to the judgment means that a reviewing court must assume that the
factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so. A corollary to this requirement is that a court should
disregard all evidence that a reasonable factfinder could have disbelieved
or found to be incredible. This does not mean that a court must disregard
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all evidence that does not support the finding. Disregarding undisputed
facts that do not support the finding could skew the analysis of whether
there is clear and convincing evidence.
In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (per curiam) (quoting In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002)) (emphasis in J.P.B.).
In a factual sufficiency review,
[A] court of appeals must give due consideration to evidence that the
factfinder could reasonably have found to be clear and convincing.... [T]he
inquiry must be "whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction about the truth of the State's
allegations." A court of appeals should consider whether disputed
evidence is such that a reasonable factfinder could not have resolved that
disputed evidence in favor of its finding. 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 J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.
2002)) (internal footnotes omitted) (alterations added).
ENDANGERING THE CHILD
To endanger means to expose to loss or injury, to jeopardize. Texas Department of
Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The specific danger to a child's
physical or emotional well-being need not be established as an independent proposition,
but it may be inferred from parental misconduct. Boyd, 727 S.W.2d at 533.
When termination of parental rights is based on section D, the endangerment
analysis focuses on the evidence of the child's physical environment, although the
environment produced by the conduct of the parents bears on the determination of
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whether the child's surroundings threaten his or her well-being. In the Interest of E.M.,
494 S.W.3d 209, 221 (Tex. App. —Waco 2015, pet. den’d). Section D permits termination
if the petitioner proves parental conduct caused a child to be placed or remain in an
endangering environment. Id. It is not necessary that the parent's conduct be directed
toward the child or that the child actually be injured; rather, a child is endangered when
the environment creates a potential for danger which the parent is aware of but
disregards. Id. Conduct that demonstrates awareness of an endangering environment is
sufficient to show endangerment. Id. In considering whether to terminate parental
rights, the court may look at parental conduct both before and after the birth of the child.
Id. Section D permits termination based upon only a single act or omission. In the Interest
of E.M., 494 S.W.3d at 222.
Under subsection 161.001 (b) (1) (E), the relevant inquiry is 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. Id. Under subsection (E) it
can be either the parent’s conduct or the conduct of a person with whom the parent
knowingly leaves the child that endangers the physical or emotional well-being of the
child. In either instance it is thus the direct result of the parent’s conduct that results in
the termination of the parental rights. It is not necessary, however, that the conduct be
directed at the child or that the child actually suffer injury. In the Interest of E.M., 494
S.W.3d at 222.
In the Interest of K.S. Page 6
Mother has four children. The oldest child is an adult and not part of these
proceedings. The Department of Family and Protective Services filed an original petition
for the protection of Mother’s children, J.S., T.S., and K.S. The father of J.S. and T.S. was
appointed as their sole managing conservator. Mother was appointed as their possessory
conservator. J.S. and T.S. are not subject to this appeal.
The Department first became involved with Mother in November 2008 because of
allegations of abuse against J.S. and T.S. Mother was referred for services, but she did not
complete them. The Department again became involved with Mother in June 2011 over
concerns of domestic violence.
The Department next became involved with Mother on January 3, 2021 when
Mother was stopped for a traffic violation and law enforcement found methamphetamine
in her vehicle. T.S. and K.S. were in the vehicle with Mother at the time of the traffic stop.
Mother was arrested for possession of methamphetamine. T.S., who was fifteen years-
old at the time, was also in possession of drugs and was placed in juvenile detention.
There was another incident around that time where Mother was in possession of
methamphetamine while T.S. and K.S. were with her. Mother said that the drugs
belonged to her sister, but admitted that she was addicted to methamphetamines. The
Department filed for protection of J.S., T.S., and K.S.
K.S. was six years-old at the time Mother was arrested for possession of
methamphetamine. Mother wanted K.S. to be placed with her parents when he was
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removed from her care, but there were concerns of drug use in her parents’ home. At the
time of the removal, J.S. was on runaway status and T.S. was in juvenile detention.
Keandra Jones, the Department Conservator Specialist assigned to this case,
testified that a service plan was developed for Mother in March 2021 which required
Mother to complete inpatient treatment for substance abuse and drug test monthly. Jones
stated that Mother tested positive for methamphetamines on her “hair follicle” test on
more than one occasion. Jones further stated that Mother initially went for her drug
testing, but there were problems with her drug tests in November and December of 2021.
Jones testified that Mother has not addressed her substance abuse.
Jones further testified that she speaks with K.S. monthly. K.S. told Jones that he
was exposed to drug use while he was with Mother. K.S. also said that J.S. and T.S.
physically abused him by shooting him with a BB gun in his stomach and also burning
him several times. K.S. also told Jones that he had smoked marijuana and that he was
left unsupervised at times.
Domestic violence may support a finding of endangerment under either Sections
161.001 (b) (1) (D) or Section 161.001 (E) depending on the given circumstances. See In the
Interest of A.L.H., 624 S.W.3d 47, 57 (Tex. App. —El Paso 2021, no pet.). K.S. was exposed
to domestic violence in the home and was the victim of abuse in the home.
A parent's use of narcotics and its effects on his or her ability to parent may qualify
as an endangering course of conduct under Subsection (E). See In re J.O.A., 283 S.W.3d
336, 345 (Tex. 2009). Mother was in possession of methamphetamine while her children
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were with her, and she admitted to being addicted to methamphetamine. Mother tested
positive for methamphetamine after K.S. was removed. K.S. said that he has been
exposed to drug use. There was testimony that both J.S. and T.S. use drugs.
We find that the evidence is sufficient to support the trial court’s findings that
Mother knowingly engaged in conduct or knowingly placed K.S. with persons who
engaged in conduct that endangers the child. TEX. FAM. CODE ANN. § 161.001 (b) (1) (E)
(West). We overrule the third issue on appeal. Because we find that the evidence is
sufficient under Section 161.001 (b) (1) (E), we have addressed the concerns of protecting
Mother’s due process and due course of law rights. See In the Interest of N.G., 577 S.W.3d
230 (Tex. 2019).
Only one predicate act under section 161.001 (b) (1) is necessary to support a
judgment of termination in addition to the required finding that termination is in the
child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore, we need not
address the second and fourth issues. TEX. R. APP. P. 47.1.
BEST INTEREST
In the fifth issue, Mother argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination is in the best interest of
the child. In determining the best interest of a child, a number of factors have been
considered, including (1) the desires of the child; (2) the emotional and physical needs of
the child now and in the future; (3) the emotional and physical danger to the child now
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and in the future; (4) the parental abilities of the individuals seeking custody; (5) the
programs available to assist these individuals; (6) the plans for the child by these
individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may
indicate the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976); In re
S.L., 421 S.W.3d 34, 38 (Tex. App. —Waco 2013, no pet.). The Holley factors focus on the
best interest of the child, not the best interest of the parent. In re S.L., 421 S.W.3d at 38.
The goal of establishing a stable permanent home for a child is a compelling state interest.
Id. The need for permanence is a paramount consideration for a child's present and future
physical and emotional needs. Id.
K.S. was seven years-old at the time of trial. There was testimony that he had not
expressed any desire to return to his mother. K.S. is afraid of his brothers J.S. and T.S.
and did not want any visitation with them.
K.S. currently attends therapy weekly and has been diagnosed with ADHD and
PTSD. He takes medication for ADHD. K.S. is now doing well in school and is passing
all of his classes. While in Mother’s care, K.S. did not attend school regularly, did not
receive routine medical care, and did not receive therapy or medications. While in the
care of Mother, K.S. was exposed to drug use and violence. Both of his brothers used
drugs, and K.S. stated that he had smoked marijuana. The brothers physically abused
K.S., and Mother did not protect him from that abuse.
In the Interest of K.S. Page 10
Because of Mother’s drug use and history of incarceration, K.S. was frequently
cared for by his maternal grandparents. When considered by the Department as a
placement for K.S., the grandparents tested positive for drugs. Mother continued to live
with her parents at the time of trial. There is nothing in the record to show that Mother
has a plan for a stable living environment for K.S. Mother continued to test positive for
methamphetamines while the termination case was pending. There was testimony that
she has not addressed her substance abuse problems.
K.S. has remained in the same foster home since his removal and is thriving in that
home. The foster parents plan to adopt K.S.
We find that the evidence is legally and factually sufficient to support the trial
court’s finding that termination of Mother’s parental rights is in the best interest of K.S.
We overrule the fifth issue.
CONCLUSION
We affirm the trial court’s order terminating Mother’s parental rights to K.S.
STEVE SMITH
Justice
In the Interest of K.S. Page 11
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed August 3, 2022
[CV06]
In the Interest of K.S. Page 12