in the Interest of E. S. T. AKA E.T. a Child v. Department of Family and Protective Services

Opinion issued November 21, 2022.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00404-CV
———————————
IN THE INTEREST OF E.S.T. AKA E.T., A CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2019-01176J
MEMORANDUM OPINION
This appeal involves a parental termination case. The trial court entered a
final decree terminating S.C.S.’s (“Mother”) parental rights to her minor child,
E.S.T. (“Elliott”), based on the court’s findings that Mother (1) knowingly placed or
knowingly allowed Elliott to remain in conditions or surroundings which endangered
his physical or emotional well-being, (2) engaged in conduct or knowingly placed
Elliott with persons who engaged in conduct which endangered his physical or
emotional well-being, (3) constructively abandoned Elliott, and (4) failed to comply
with the provisions of a court order. See TEX. FAM. CODE § 161.001(b)(1)(D), (E),
(N), & (O). Mother argues that the decree terminating her parental rights is not final,
and that even if it were, there is legally and factually insufficient evidence supporting
the trial court’s findings that (1) she engaged in one or more predicate acts requiring
termination of her parental rights under Sections 161.001(b)(1)(D), (E), (N), & (O)
of the Texas Family Code, and (2) termination of her parental rights was in Elliott’s
best interest. Mother further contends the trial court abused its discretion by
appointing V.S. (“Valerie”) as Elliott’s conservator.
We affirm the decree of termination.
Background
On January 22, 2018, the Texas Department of Family and Protective Services
(“Department”) received a referral concerning Mother’s neglectful supervision of
Elliott.1 According to the referral, Mother had removed two-year old Elliott from
D.J.L.’s (“Father”) care at gunpoint. The Department, which had received other
referrals of Mother’s neglectful supervision of Elliott while the Department’s case
1
For purposes of this appeal and ease of reference, the term “Department” also
includes Harris County Child Protective Services.
To protect the identity of the minor child, we use Elliott as a pseudonym for him
and Father and Mother to refer to his biological parents. See TEX. R. APP. P. 9.8.
2
was pending, learned in 2019 that Mother was facing federal charges for multiple
counts of robbery. On March 14, 2019, the Department filed a petition seeking
managing conservatorship over Elliott and termination of Mother’s and Father’s
parental rights. Trial commenced on September 10, 2020.2
A. Trial Testimony on September 10, 2020
1. Kirbi Clark
Elliott’s caseworker, Kirbi Clark (“Clark”), testified the Department became
involved with the family after it received a referral in January 2018 alleging that
Mother had removed Elliott from Father’s care at gunpoint.3 The record reflects that
Mother was charged with aggravated assault with a deadly weapon. According to
Clark, the criminal charge against Mother was dismissed because Father did not
appear for court.
The Department received another referral in January 2019 alleging a police
officer had seen Elliott alone in a car parked in a hotel parking lot while Mother was
at work inside. The officer reported that he stayed by the car for approximately two
2
Although the Department’s petition for termination of Father’s parental rights was
also at issue in trial, Father is not a party to this appeal and, thus, we are limiting
our discussion to the facts pertaining to Mother, as appropriate.
3
According to Clark, there were several referrals associated with this incident.
3
hours waiting to locate the mother. Elliott, who was born in February 2016, was two
years old when this incident occurred.4
Clark testified that, in addition to the aggravated assault with a deadly weapon
charge stemming from the January 2018 incident, Mother was also on deferred
adjudication community supervision for the state jail felony offense of abandoning
a child with intent to return when the case began. The child abandonment charge
stemmed from a 2015 incident when Mother left her two oldest children, who were
eight years old and three years old at the time, alone at home while she was at work.
The 2015 incident also resulted in a referral to the Department for neglectful
supervision. Clark testified that the State had filed a motion to adjudicate guilt with
respect to this charge and Mother’s next court date was in October 2020.
Clark testified that Mother had also been indicted by a federal grand jury for
robbery, she was arrested in July 2019 for those charges, and was in a federal
detention center at the time of her trial. Clark did not know when Mother’s next
court date for the federal charges was set.
In addition to the referrals to the Department and Mother’s alleged criminal
conduct, the record reflects Mother tested positive for illegal drugs twice while the
4
Clark testified that the Department also received a referral in September 2018
alleging that Mother had left Elliott alone. The record, however, reflects that the
September 2018 referral involved allegations that Mother was chasing someone
while she had three children in her car, including one child hanging out of the car
window.
4
present case was pending. Mother’s hair sample tested positive for cocaine in
February 2018 shortly after the case began. When asked if a parent’s use of cocaine
while caring for a very young child is considered endangering conduct, Clark
testified, “Yes, that is very concerning, in our opinion.” The record reflects that
Mother also tested positive for cocaine and marijuana in May 2018.
Clark testified the Department developed a family service plan for Mother and
Mother had been participating in services until she was arrested for federal charges
in July 2019. According to Clark, Mother submitted to drug testing, submitted to a
psychological evaluation, and followed the evaluator’s recommendations. Mother
also completed parenting classes and provided a certificate of completion. Mother,
however, did not complete a substance abuse assessment and she did not follow all
recommendations or demonstrate she was able to provide stable housing and stable
employment.5 Mother informed Clark that she was not able to complete her
remaining services while in federal custody. Clark explained that Mother’s hair
sample tested positive for cocaine when the present case began in February 2018,
but that her subsequent drug tests were negative.6 The Department was nevertheless
5
When asked if Mother had refused to work her services in August 2018, Clark
testified she did not know because she was not the caseworker at that time. The
Child Advocate report reflects Mother refused to complete her services in August
2018.
6
Contrary to Clark’s assertion, the record reflects Mother also tested positive for
cocaine and marijuana in May 2018.
5
concerned that Mother had not completed her substance abuse evaluation because
“she never received any treatment, and so, we would hate for her to regress and begin
using illegal substances again.”
Clark testified that, to her knowledge, Mother had not written any letters to
Elliott or sent him anything since July 2019, when Mother’s confinement in the
Federal Detention Center began. Although Clark received clothes and shoes from
Elliott’s maternal grandmother and D.C. (“David”), Mother’s boyfriend and the
father of her youngest child (“Debra”), Clark did not know if the gifts were sent at
Mother’s direction.7
With respect to Elliott’s placement, Clark testified that Mother’s two oldest
children were living with their paternal grandmother, who has conservatorship of the
children as a result of the 2015 referral of negligent supervision by Mother. The
paternal grandmother is not related to Elliott. According to Clark, the Department
approached the grandmother about possibly placing Elliott with her, but she was
struggling financially and could not afford to care for another child. Mother’s
youngest child, Debra, was placed with Debra’s father, David.
Clark testified the Department had completed home studies for Elliott’s
paternal uncle Ivy Davis (“Davis”), Father’s cousin April Spicer (“Spicer”), and
7
To protect her identity, we use Debra as a pseudonym for her. See TEX. R. APP.
P. 9.8.
6
David. Although Elliott was initially placed with Davis, Elliott was removed shortly
after. The Department was concerned that Elliott was actually staying with another
paternal relative and it had concerns about the safety of the situation.
Clark testified that Father submitted his cousin, Spicer, as a possible
placement for Elliott. She testified the Department considered Spicer after Elliott
was removed from Davis’ home. According to Clark, Spicer, whose home study
and risk assessment had been approved, had been visiting with Elliott since March
2020 and those visits had been “very appropriate.” Clark testified that Spicer
appeared to get along well with Elliott and he had bonded with her. Spicer indicated
to Clark that she wanted to keep Elliott long term and Spicer never indicated she
would be unable to do so. Clark also testified that Father was present for one of
Spicer’s visits with Elliott and Father behaved appropriately during the visit. She
did not have any concerns about Spicer’s protective ability. She further testified she
did not have any concerns with respect to Father’s ability to “be appropriate and
respectful” if Elliott were placed with Spicer, and Clark had “not received any
indication that there would be concern for the child’s safety.”
David, who was present for trial, is Mother’s boyfriend and he has custody of
their infant daughter, Debra. Clark testified that David’s home study was approved,
and he was willing to be a permanent placement for Elliott, “up to and including
7
adoption.” According to Clark, Elliott had visited with Debra and David three times
and David interacts well with Elliott.
On cross-examination, Clark testified that the Department knew David was
still in a relationship with Mother. The Department was concerned David might not
be willing to keep Elliott long-term if Mother was not released from jail. The
Department was also concerned that David and Mother would continue their
relationship if Mother was released from jail and they questioned whether David
would “still be willing to be protective of [Elliott] and ensure his safety” under those
circumstances. According to Clark, the Department talked to David about these
concerns. David informed the Department he was willing to be protective of Elliott
irrespective of Mother’s release from jail and that he was willing to follow the
guidelines the Department and the court ordered. When asked if the Department
was concerned that Elliott “could potentially be back in an environment where his
mother is around him and has access to him, given her extensive criminal history,”
Clark acknowledged that was a concern. When asked if she felt it was appropriate
for Mother to have this type of contact with Elliott after her release from prison,
Clark testified that Elliott is “very well bonded with his mother, and that as long as
Mr. David is willing to be protective and keep [Elliott] safe, that’s our major
concern.”
8
Clark testified that the Department was requesting termination of Mother’s
parental rights to Elliott, and she believed that termination of Mother’s rights was in
Elliott’s best interest because Mother had been “unable to provide a safe and loving
and nurturing home.” She also believed that it was in Elliott’s best interest that he
be placed with David. The Department asked to be appointed Elliott’s permanent
managing conservator “to continue to work for permanency” for Elliott. Clark
further testified that Elliot has “been in limbo and he deserves a safe and nurturing
home.”
2. Mother’s Testimony
Mother testified that she has four children, thirteen-year-old “Evan,” seven-
year-old “Erik,” four-year old Elliott, and eight-month-old Debra.8 Evan and Erik
live with their paternal grandmother who has conservatorship of the boys, and Debra
lives with her father, David.
When asked about her criminal history, Mother testified that she was charged
with the Class A misdemeanor of unlawfully carrying a weapon in 2006 after the
police found a handgun in her car. Mother explained that she was not aware that the
8
We are using pseudonyms for all the children to protect their identities. During her
trial in September 2020, Mother testified that Debra was eight months old. The
record, however, reflects the Department received a referral concerning Debra in
February 2018—over two and a half years before trial. Thus, the record suggests
that Debra was older than eight months old when Mother testified in September
2020.
9
gun was there. She pleaded guilty and was sentenced to ten days in jail. Mother
was also charged with endangering a child in June 2010 after Evan was left at home
alone with access to a firearm. Evan was two years old at the time. Mother explained
that her sister was babysitting for her when she was at work, and her sister left the
kids at home by themselves. Mother also denied that the firearm was in a place
where Evan could have accessed it. She pleaded guilty and was initially placed on
deferred adjudication for that offense. Her deferred adjudication was later revoked,
and she was sentenced to six months in state jail.
Mother was also charged with the Class B misdemeanor offense of theft in
2012 for theft of jewelry. Mother testified that her friend had stolen the jewelry, not
her, but that the police had arrested Mother because she was with her friend at the
time. Mother testified that despite being innocent, she nevertheless pleaded guilty
to the theft offense because it was cheaper to plead guilty than to hire an attorney to
fight the charge. She was sentenced to two days in jail for the offense.
Mother also pleaded guilty to the Class A misdemeanor offense of failing to
identify herself to a peace officer in September 2014. Mother denied failing to
identify herself to the officer, and suggested she was charged because she did not
have her driver’s license with her when she was stopped. She was sentenced to
fifteen days in jail for the offense.
10
Mother was also charged with the state jail felony offense of abandoning a
child with the intent to return in 2015, when she left her two oldest children, eight-
year-old Evan and three-year-old Erik, alone at home while she was at work. Mother
explained she only left the children at home alone because she did not have childcare.
She was placed on deferred adjudication with a period of community supervision for
four years. The State filed a motion to adjudicate guilt with respect to that charge in
May 2018, after she was charged with aggravated assault with a deadly weapon
stemming from the January 2018 incident involving Elliott and Father.9 The motion
to adjudicate was pending as of the time of trial.
Mother was in federal custody for robbery at the time of trial. According to
the federal indictment, which was admitted into evidence, Mother was charged with
three counts of robbery and three counts of knowingly carrying, using, and
brandishing “a firearm, namely, a handgun, during and in relationship to a crime of
violence.” On November 13, 2018, Mother allegedly robbed a hotel employee “by
means of actual and threatened force, violence, and fear of injury” while knowingly
carrying, using, and brandishing a handgun. On November 17, 2018 and January 6,
2019, Mother also allegedly robbed other hotel employees in the same manner.
9
Although the testimony reflects that Mother was charged with burglary, the exhibit
states Mother was charged with aggravated assault with a deadly weapon. The
assault charge was later dismissed because Father allegedly refused to cooperate
with the State. Father denied that he failed to cooperate.
11
Mother was arrested for those charges on July 15, 2019. Mother testified that her
next court date for her pending federal charges was set for October 10, 2020, and
she had not been offered a plea deal. She also did not know the range of punishment
for those charges should she be convicted.
In addition to her criminal history, Mother acknowledged that she also has a
“pretty extensive CPS history.” The circumstances leading to Mother’s 2015 child
abandonment offense involving her children Evan and Erik also resulted in a referral
to the Department. When asked if the 2015 referral included allegations that her
sons were found wandering in the parking lot, Mother testified, “Not to my
knowledge.” She acknowledged that her mother had conservatorship over both boys
because of the referral.10
When asked about the January 2018 allegations that she and her brother had
gone to Father’s home and retrieved Elliott at gunpoint, Mother testified that the case
had been dismissed because neither she nor her brother had a gun. Mother claimed
that Father recanted his prior statement to police that she had a gun and claimed
Father did not attend any court proceedings because he knew the allegations against
her were untrue. Mother claimed that although Father was fine with her removing
Elliott from his home, he was angry that she brought her brother with her and he
10
The record reflects the Department received a referral concerning Debra in February
2018. Mother is listed as the alleged perpetrator and allegations, which are not
included in the record, were ruled out.
12
called the police in retaliation. Mother acknowledged the Department tried to work
with her and offered her family-based services while Elliott was placed with a friend
in May 2018, and she denied ever refusing to do her services.
Mother also admitted the Department received a referral in September 2018
alleging she had been seen “driving, chasing somebody” with three kids in her car
with “one kid [] hanging out the window.” While she acknowledged the referral,
Mother denied that the incident giving rise to the referral had ever happened.
According to the Child Advocate’s report, which was admitted into evidence, the
referral was for negligent supervision of Elliott by Mother.
On January 22, 2019, the Department received another referral alleging
Mother had left Elliott unsupervised in a car parked outside the hotel where she was
employed. Mother testified the car was parked in the front where she could see it
and that she had only gone inside to pick up her check and had come right back out.
Although she acknowledged leaving Elliott in the car unsupervised, she denied that
he was alone for two hours. She also denied working that day and claimed the officer
at the scene spoke to her general manager and a co-worker who corroborated her
story.
She also acknowledged the Department received another referral concerning
Elliott in May 2017. The referral alleged that one of Mother’s family members, who
was babysitting for then one-year-old Elliott, spanked or hit him and locked him in
13
a closet. Although the Department filed for temporary custody of Elliott at that time,
the judge denied the request.
On March 13, 2019, Mother was interviewed at the Alcohol, Tobacco and
Firearms’ (“ATF”) offices regarding the federal charges currently pending against
her. Mother admitted that she left her children at home alone when she went for the
interview and when law enforcement searched her apartment, they found a firearm
in a bathroom drawer accessible to the children. Mother, who did not know if the
firearm was loaded, admitted that if the officer testified at the show cause hearing in
this case that the firearm was loaded, she would have no reason to argue the point.
Mother also admitted that this event was similar to the 2010 referral alleging
she has left Evan home alone with access to a firearm, but she pointed out that the
firearm found in 2010 was in a top kitchen cabinet, whereas the firearm involved in
the March 2019 incident was found in a bathroom drawer. Mother also admitted
that one of the firearms was stolen, but she did know which one. Mother also
acknowledged that the March 2019 incident was the third or fourth documented time
she had left her children unattended, and she agreed that she had a pattern of leaving
her young children unattended.
Despite her criminal history and history with the Department, Mother testified
she believed she could provide a safe and loving home for Elliott because she had
learned from her past adversities. Mother explained she had been struggling as a
14
single mother working two jobs, and that she only left the children at home alone
because she could not find a babysitter. She explained that unlike in the past, the
children were older, and she now has “stable support” to help overcome those
adversities.
With respect to possible placements for Elliott, Mother testified she asked
David to intervene in this case and to help her with Elliott after Elliott was removed
from Davis’ home. She testified David filed a motion to intervene a few months
before trial. Mother testified she intended to continue her relationship with David if
Elliott was placed with him. When asked if she intended to live with David as a
couple after she was released from prison, Mother responded, “Depending on the
guidelines. If the guidelines state that I cannot live there, then I will not live there.”
Mother testified she would comply with the court’s rules regarding her visitation and
access to Elliott. She admitted, however, that she has difficulty following the law
and she has a “history of not following rules.” When asked if David knew she had
a habit of leaving children alone with access to firearms, Mother testified, “Well,
I’m sure he’s aware now. He’s on this call.” When asked if she had spoken to David
about “continually leaving young children alone to wander in the parking lot and
have access to loaded weapons,” Mother responded, “Yeah, I think we would know
how to practice safe habits for the children.”
15
On cross-examination, Mother testified she understood that if the court placed
Elliott with David, there would likely be “very, very strict restrictions about [her]
access and visitation” to Elliott, and Mother testified that she would abide by those
restrictions. Mother understood that if she violated those rules, it was possible the
Department would remove both Elliott and Debra, his younger half-sister, from
David’s home.
With respect to Father’s proposed placement, Mother testified she did not
know Spicer, and, unlike David, Mother would not have any contact or interactions
with Spicer. She further testified that she was not opposed to having a relationship
with Spicer or reaching out to Elliott through Spicer.
With respect to her family service plan, Mother testified that she received her
current service plan in March 2019 and she completed it by July 2019.11 Mother
denied that she refused to do services in August 2018. When asked why she did not
complete the substance abuse assessment required by her plan, Mother testified that
she was working with a different social worker at the time and the social worker told
her she did not need to complete the substance abuse assessment because, aside from
her initial test, all of Mother’s drug tests were negative. Mother testified that she
was under the impression she had completed all her requirements by the time she
11
Mother received a family service plan after she allegedly removed Elliott from
Father’s possession at gunpoint in January 2018.
16
was arrested in July 2019. Mother testified that she emailed Clark while she was in
federal detention and informed her that she had completed her plan and she had been
sending Clark all her pay stubs prior to her arrest. Mother testified that she learned
the Department believed she had not completed her requirements while she was in
federal detention and she submitted to a drug test while there. Mother testified that
given her incarceration, she had limited access to the services she needed to complete
her service plan to the Department’s satisfaction. When asked about her positive
drug tests, Mother testified that she has never used drugs. She explained that the
small amount of cocaine found in her hair at the beginning of the case could have
been because she deals with cash at work and cocaine could have been transferred
to her that way.
3. Jamesha Roy
Jamesha Roy (“Roy”), Elliott’s Child Advocate, agreed that Mother’s parental
rights to Elliott should be terminated and she believed it was in Elliott’s best interest
to appoint the Department as Elliott’s sole managing conservator. Roy explained
that Mother had not demonstrated she was able to care for Elliott and, given her
criminal history and history with the Department, Mother was not able to provide a
safe and stable home for Elliott. When asked if she had an opinion as to placement,
Roy testified she wanted more time to investigate the issue because she had concerns
about the protective capacity of the current placement options, including David. Roy
17
testified that Elliott’s current foster home was meeting all of Elliott’s emotional,
educational, and physical needs and his foster mother was willing to keep him long-
term while the Department determined the best possible relative or fictive kin
placement for Elliott.
After hearing closing arguments, the trial court informed the parties that it
wanted more time to consider placement options and would render a judgment by
email.
B. Trial Testimony on November 11, 2020 and December 2, 2020
On November 11, 2020, Father, who was not present for trial, made a motion
to reopen the evidence to allow him to testify on the merits. After the court granted
his motion to reopen the evidence, Father testified that he was watching Elliott in
January or February 2018 at Mother’s request. When Mother did not come home as
planned, he repeatedly contacted her, and she became belligerent and threatened
him. At that point, Father gathered up Elliott’s things and took him to Father’s
friend’s home because he did not feel it was safe for Elliott to be with Mother.
Father testified that he also called the police to inform them that he was not
kidnapping Elliott, and that Mother had been threatening him. Father also contacted
the Department. According to Father, Mother arrived at his friend’s home a few
weeks later with her mother and her brother and they took Elliott away at gunpoint.
18
Father testified that all three were charged with a crime because of this incident.12
Father explained that, if he could not have possession of Elliott, he wanted Elliott
placed with Spicer, over David, because Father believed that anyone associated with
Mother would allow her access to Elliott.
On December 2, 2020, the trial concluded after the parties made their closing
arguments.
C. Final Decree and Post-Trial Events
The trial court signed a final decree on February 3, 2021 terminating Mother’s
and Father’s parental rights to Elliott and appointing the Department as Elliott’s sole
managing conservator. The trial court terminated Mother’s rights based on the
court’s findings that (1) Mother committed the predicate bases for termination under
Subsections D, E, N, and O of the Family Code, and (2) termination of Mother’s
rights was in Elliott’s best interest.
Mother and Father appealed the final decree. While their appeals were
pending, the trial court granted Father’s motion for new trial and signed an order on
April 13, 2021 vacating the portion of the February 2021 decree terminating Father’s
parental rights and resetting his case for trial. The order states:
After hearing the arguments presented and taking judicial notice of the
Court’s file, the Court finds that good cause exists to grant the motion.
12
The record reflects that Mother was charged with aggravated assault with a deadly
weapon.
19
In accordance with this ruling, the Court vacates the portion of the
February 3, 2021 final decree of termination that terminated [Father’s]
parental rights.
D. Father’s New Trial13
On January 25, 2022 and March 10, 2022, the court held a new trial as to the
Department’s claims against Father. On March 10, 2022, the trial court heard
testimony regarding a mediated settlement agreement (“MSA”) executed by Father,
the Department, and Elliott’s attorney ad litem. In the MSA, the parties agreed that
V.S. (“Valerie”), the mother of one of Father’s older sons, would be appointed as
Elliott’s sole managing conservator, Father would be appointed as a possessory
conservator, and David would be appointed as a non-parent possessory conservator
for the limited purpose of enabling sibling visitation.
1. Clark
Clark testified that Elliott had visited with Valerie and her family five times,
including two overnight weekend visits. She reported the visits had been going
“really, really well” and after the first visit, Elliott asked when he was going back.
According to Clark, Elliott is bonded with Valerie and he talks about Valerie and her
seventeen-year-old son, Elliott’s half-brother, all the time. Elliott’s half-brother is
excited about living with Elliott and getting to know him. The Department had no
13
Although Mother did not appear at or participate in the 2022 trial, we include this
background information because the proceeding is relevant to Mother’s issues on
appeal.
20
concerns with placing Elliott with Valerie and Clark believed it would be in Elliott’s
best interest for the trial court to render a final decree in conformance with the MSA.
Clark testified that Elliott should continue with therapy for a brief period.
2. Valerie
Valerie, the mother of Father’s seventeen-year-old son, testified that she was
willing to take Elliott into her home and be appointed as his sole managing
conservator. She explained that she had discussed the matter with her husband and
family, and they were all in agreement.
Valerie testified that it had been “an absolutely joy” getting to know Elliott
the last few weeks and she was “pleasantly surprised at just how adjusted” he was.
She noted that Elliott is excited about coming to her home and he does not want to
leave. With respect to Elliott’s relationship with his half-brother, Valerie testified
Elliott “absolutely adores his brother and the feeling’s mutual.” Valerie’s son has
“really taken” to Elliott and her husband adores him. According to Valerie, Elliott
“fits right in and I’m just so, so happy that it has turned out the way that it has.”
Valerie also testified that it was necessary for Elliott to continue with therapy for the
time being and she agreed to continue with his sessions.
3. Roy
Roy, Elliott’s Child Advocate, testified next. Roy testified that Child
Advocates was not a party to the MSA, and they had concerns about allowing Father
21
to visit Elliott. With respect to Valerie, Roy testified she observed Elliott in
Valerie’s home and had spoken with Elliott outside of those visits. According to
Roy, Elliott really likes Valerie’s home, and he is excited about moving there. She
believed that Valerie and her family are nice, and they have “adjusted to him well.”
She further testified that Valerie and her family enjoy having Elliott in their home
and they have the means to care for him. According to Roy, Child Advocates had
no concerns about Valerie’s relationship with Elliott or her ability to care for him.
Roy did, however, have some concerns about Valerie’s ability to oversee Father’s
visitations. Nevertheless, Roy further testified she believed Valerie will “have pretty
good protective capacity when it comes to like meeting his needs and making sure
that everything is taken care of, and if issues arise, she’ll be able to meet those --
those needs.”14
On May 10, 2022, the trial court issued a final decree that, as agreed in the
MSA, appointed Valerie as Elliott’s sole managing conservator, Father as a
possessory conservator, and David as a non-parent possessory conservator for the
limited purpose of enabling sibling visitation. The final decree states:
On February 3, 2021, the Court entered a decree terminating the
parental rights of [Mother] and [Father].
....
14
Father also testified but only for the purposes of asking the court to render judgment
in accordance with the MSA.
22
The retrial of the issues involving the parental rights of [Father] was
heard on January 25, 2022, and March 10, 2022.
The Court makes no changes to the Court’s February 3, 2021 decree
except to vacate the portion of the judgment terminating the parental
rights of [Father]. The Court’s decision to terminate the parental rights
of [Mother] in the February 3, 2021 decree remains unchanged.
On May 25, 2022, Mother filed a notice of appeal challenging the May 10,
2022 decree.
Jurisdiction
In her first issue, Mother argues there is no final decree terminating her
parental rights because the February 3, 2021 decree was vacated when the trial court
granted Father’s motion for new trial on April 13, 2021. She argues the May 10,
2022 decree does not state the grounds upon which Mother’s rights were terminated
and thus, the decree does not satisfy the requirements of Section 161.206 of the
Family Code and Rule 306 of the Rules of Civil Procedure as to her. TEX. FAM.
CODE § 161.206 (setting forth requirements for final decree of termination); TEX. R.
CIV. P. 306 (requiring final decree of termination to, among other things, “state the
specific grounds for termination”). Although she does not expressly state as much,
Mother’s first issue raises the question of our jurisdiction over her appeal.
This Court has jurisdiction only over appeals from final judgments and certain
interlocutory orders that the Legislature has designated as immediately
appealable. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). We
23
do not have jurisdiction over interlocutory appeals of parental termination decrees.
See In re E.S.T., No. 01-21-00088-CV, 2021 WL 3669629, at *1 (Tex. App.—
Houston [1st Dist.] Aug. 18, 2021, no pet.) (mem. op.); see also In re C.R.D., No.
03-19-00561-CV, 2019 WL 4281929, at *1 (Tex. App.—Austin Sept. 11, 2019, no
pet.) (mem. op.) (dismissing termination appeal where order did not dispose of all
parties and issues); In re E.A.F., No. 14-13-00618-CV, 2013 WL 4945751, at *1
(Tex. App.—Houston [14th Dist.] Sept. 12, 2013, no pet.) (mem. op.) (same). Thus,
if Mother is correct and there is no final decree in this case disposing of the
Department’s claims against her, we have no choice but to dismiss her appeal for
want of jurisdiction.
Mother argues the trial court’s April 13, 2021 order granting Father’s motion
for new trial vacated the entire February 3, 2021 termination decree, including the
portion of the decree terminating her parental rights. The April 13, 2021 decree,
however, expressly states:
After hearing the arguments presented and taking judicial notice of the
Court’s file, the Court finds that good cause exists to grant the motion.
In accordance with this ruling, the Court vacates the portion of the
February 3, 2021 final decree of termination that terminated [Father’s]
parental rights.
(Emphasis added). Thus, contrary to Mother’s assertion, the April 13, 2021 order
did not vacate the portion of the February 3, 2021 decree terminating her parental
rights to Elliott. Rather, the April 13, 2021 order rendered the initial February 3,
24
2021 decree interlocutory because the decree no longer disposed of all parties and
issues in this termination proceeding.
After Father’s new trial concluded in 2022, the trial court issued a second
termination decree on May 10, 2022 disposing of the remaining claims against
Father. When the trial court issued the May 10, 2022 decree, the interlocutory
February 3, 2021 decree merged into it and became final. See Bonsmara Natural
Beef Co., L.L.C. v. Hart of Texas Cattle Feeders, L.L.C., 603 S.W.3d 385, 390 (Tex.
2020) (“When a trial court renders a final judgment, the court’s interlocutory orders
merge into the judgment. . .”); Webb v. Jorns, 488 S.W.2d 407, 408–09 (Tex. 1972)
(holding interlocutory order merges into final judgment and becomes final for
purposes of appeal).
Mother does not dispute that the portions of the February 3, 2021 decree
terminating her parental rights satisfies the requirements of Section 161.206 of the
Family Code and Rule 306 of the Rules of Civil Procedure as to her. TEX. FAM.
CODE § 161.206; TEX. R. CIV. P. 306. Instead, she contends that the February 3,
2021 decree did not merge into the May 10, 2022 decree, because the May 10, 2022
decree merely states that “any and all previous interlocutory orders are incorporated
into this final judgment,” and does not expressly state that the February 3, 2021
decree is incorporated by reference. But interlocutory orders need not be expressly
incorporated by reference for purposes of merging into a final judgment. An
25
interlocutory judgment merges into the final judgment and become final for purposes
of appeal, “whether or not the interlocutory judgment is specifically named within
the final judgment.” See Radelow-Gittens Real Prop. Mgmt. v. Pamex Foods, 735
S.W.2d 558, 560 (Tex. App.—Dallas 1987, writ ref’d n.r.e.); see also Runnymede
Corp. v. Metroplex Plaza, Inc., 543 S.W.2d 4, 5 (Tex. Civ. App.—Dallas 1976, writ
ref’d) (holding interlocutory summary judgment merged into final order dismissing
suit when court sustained plea in abatement, even though final order “did not refer to
the previous interlocutory order and did not mention [remaining defendant]”). We
thus conclude that the May 10, 2022 decree is the final decree and because the
interlocutory February 3, 2021 decree was not vacated as to Mother, that
interlocutory decree merged into the final May 10, 2022 decree and became final for
purposes of appeal.
We overrule Mother’s first issue.
Termination of Mother’s Parental Rights
In her second, third, fourth, and fifth issues, Mother argues there is legally and
factually insufficient evidence supporting the trial court’s findings she engaged in
the predicate acts set forth in Texas Family Code Sections 161.001(b)(1)(D), (E),
(N), & (O). See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N), & (O). She also
argues there is legally and factually insufficient evidence supporting the trial court’s
finding that termination of her parental rights was in Elliott’s best interest.
26
A. Standard of Review
A parent’s rights to the “companionship, care, custody, and management” of
his or her child is a constitutional interest “far more precious than any property
right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (quoting Lassiter v. Dep’t
of Soc. Servs., 452 U.S. 18, 27 (1981)); see In re M.S., 115 S.W.3d 534, 547 (Tex.
2003). 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, we strictly scrutinize termination
proceedings and strictly construe the involuntary termination statutes in favor of the
parent. Id.In a termination case under Texas Family Code section 161.001, the
Department must establish, by clear and convincing evidence, that (1) the parent
committed one or more of the enumerated acts or omissions justifying termination
and (2) termination is in the best interest of the child. See TEX. FAM.
CODE § 161.001(b). Clear and convincing evidence is “the measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
27
to the truth of the allegations sought to be established.” Id. § 101.007; In re J.F.C.,
96 S.W.3d 256, 264 (Tex. 2002). 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 355,
362 (Tex. 2003).
When reviewing the legal sufficiency of the evidence in a case involving
termination of parental rights, we determine whether the evidence is such that a
factfinder could reasonably form a firm belief or conviction that there existed
grounds for termination under Section 161.001(b)(1) and that termination was in the
best interest of the child. See TEX. FAM. CODE § 161.001(b)(1), (2); In re J.F.C., 96
S.W.3d at 266. In doing so, we examine all evidence in the light most favorable to
the finding, assuming the “factfinder resolved disputed facts in favor of its finding
if a reasonable factfinder could do so.” In re J.F.C., 96 S.W.3d at 266. We must
also disregard all evidence that the factfinder could have reasonably disbelieved or
found to not be credible. Id. But this does not mean we must disregard all evidence
that does not support the finding. Id. 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 must
28
hold the evidence to be legally insufficient and render judgment in favor of the
parent. Id.
When conducing a factual sufficiency review in a termination case, we must
consider the entire record. In re Commitment of Stoddard, 619 S.W.3d 665, 674
(Tex. 2020); In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We assume “that the
factfinder resolved disputed evidence in favor of the finding if a reasonable
factfinder could do so.” In re Commitment of Stoddard, 619 S.W.3d at 674 (citing
In re J.F.C., 96 S.W.3d at 266). We cannot “disregard” disputed evidence that a
reasonable factfinder could not have credited in favor of the finding. In re
Commitment of Stoddard, 619 S.W.3d at 674. Rather, we must determine whether,
in light of the entire record, that evidence “is so significant that a factfinder could
not reasonably have formed a firm belief or conviction” that the finding was true.
Id. (quoting In re J.F.C., 96 S.W.3d at 266).
B. Predicate Findings
In her second, third, fourth, and fifth issues, Mother argues there is legally and
factually insufficient evidence supporting the trial court’s findings she engaged in
the predicate acts set forth in Texas Family Code Sections 161.001(b)(1)(D), (E),
(N), & (O). See TEX. FAM. CODE § 161.001(b)(1)(D), (E), (N), & (O).
29
1. Applicable Law – Section 161.001(b)(1)(E)
A court may terminate the parent-child relationship if the court finds by clear
and convincing evidence that (1) the parent has engaged in at least one statutory
predicate act and (2) termination is in the best interest of the child. In re N.G., 577
S.W.3d 230, 230 (Tex. 2019); see TEX. FAM. CODE § 161.001(b).
Under Section 161.001(b)(1)(E), a parent’s rights may be terminated if clear
and convincing evidence establishes the parent “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 § 161.001(b)(1)(E). The
term “endanger,” as used in Section 161.001(b)(1)(E), means to expose to loss or
injury or to jeopardize a child’s emotional or physical health. See Tex. Dep’t of
Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); see also Walker v. Tex.
Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied). 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 117, 125 (Tex. App.—Fort Worth
2003, no pet.); see also Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied). Thus, the relevant inquiry is whether there is
evidence the parent engaged in a course of conduct that endangered the child’s
physical or emotional well-being. Jordan, 325 S.W.3d at 723 (citing In re R.D., 955
30
S.W.2d 364, 368 (Tex. App.—San Antonio 1997, pet. denied)). “[E]ndangering
conduct is not limited to actions directed towards the child” and “may include the
parent’s actions before the child’s birth, while the parent had custody of older
children[.]” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re T.G.R.-
M., 404 S.W.3d 7, 13 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The danger
to the child may be inferred from parental misconduct, even if the conduct is not
directed at the child and the child suffered no actual injury. See Boyd, 727 S.W.2d
at 533 (stating although endanger means “more than a threat of metaphysical injury
or the possible ill effects,” “it is not necessary that the conduct be directed at the
child or that the child actually suffers injury”). A parent’s past endangering conduct
may support an inference that past conduct may recur and further jeopardize the
child’s present or future physical or emotional well-being. See In re R.W., 129
S.W.3d 732, 741 (Tex. App.—Fort Worth 2004, pet. denied).
“As a general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the physical and emotional well-being of a child.” Id. at 739.
Evidence of a parent’s criminal conduct, convictions, and imprisonment may support
a finding of endangerment under Section 161.001(b)(1)(E) because such conduct
subjects a child to a life of uncertainty and instability. See In re S.R., 452 S.W.3d
351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (stating parent’s
conduct that subjects child to life of uncertainty and instability endangers child’s
31
physical and emotional well-being); see also In re V.V., 349 S.W.3d 548, 554 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied) (“Intentional criminal activity that
exposes a parent to incarceration is conduct that endangers the physical and
emotional well-being of a child.”) (citing Boyd, 727 S.W.2d at 533). A parent’s use
of illegal drugs may also support termination under Section 161.001(b)(1)(E)
because “it exposes the child to the possibility that the parent may be impaired or
imprisoned.” Walker, 312 S.W.3d at 617; see also In re J.O.A., 283 S.W.3d at 345.
2. Analysis
Mother argues there is legally and factually insufficient evidence to support
the trial court’s finding that she engaged in the predicate acts set forth in Texas
Family Code Section 161.001(b)(1)(E) because (1) there is insufficient evidence that
Mother left Elliott unattended, (2) Mother’s criminal history predates Elliott’s birth
and “does not rise to level of violent conduct that should be required to constitute a
course of conduct that endangers a child’s physical or emotional well-being,”
(3) there is no evidence of ongoing drug use on Mother’s part, and (4) even if the
trial court believed Father’s testimony over Mother regarding the January 2018
incident in which she allegedly removed Elliott from Father at gunpoint, that
“constitutes only a single event and not a course of conduct as required for
termination under subsection (E).”
32
Mother pleaded guilty to (1) carrying a weapon in 2006 when a handgun was
found in her car for which she was sentenced to 10 days in jail, (2) theft in 2012 for
which she was sentenced to 2 days in jail, and (3) failing to identify herself to a peace
officer in 2015, for which she was sentenced to 15 days in jail.15 These convictions,
which occurred prior to Elliott’s birth, constitute endangering conduct for purposes
of establishing a course of conduct under Section 161.001(b)(1)(E). See J.O.A., 283
S.W.3d at 345 (stating endangering conduct “may include the parent’s actions before
the child’s birth”); In re V.V., 349 S.W.3d at 554 (stating endangering conduct
includes criminal activity because such activity exposes parent to incarceration)
(citing Boyd, 727 S.W.2d at 533).
In June 2010, Mother pleaded guilty to the state jail felony offense of
endangering a child after she left her oldest child, two-year-old Evan, at home alone
with access to a firearm. See In re J.O.A., 283 S.W.3d at 345 (recognizing
endangering conduct “may include the parent’s actions before the child’s birth, while
the parent had custody of older children”); see also Walker, 312 S.W.3d at 617(“Evidence as to how a parent has treated another child or spouse is relevant
regarding whether a course of conduct under section 161.001(b)(1)(E) has been
established.”). Mother was initially placed on deferred adjudication for that offense,
15
The charge for failing to identify herself to a peace officer stemmed from an incident
in September 2014.
33
but the deferred adjudication was revoked in 2010 and she was sentenced to six
months in state jail.
In April 2015, the Department received a referral of neglectful supervision of
eight-year-old Evan and three-year-old Erik by Mother. The referral alleged that
Mother had left the boys alone at home while she was at work and the children were
found wandering in the apartment complex’s parking lot.16 See In re J.O.A., 283
S.W.3d at 345; Walker, 312 S.W.3d at 617. The boys’ paternal grandmother
received conservatorship as a result of the referral. Mother was also charged with
the state jail felony offense of abandoning a child with the intent to return as a result
of the incident.
On March 1, 2016, less than one month after Elliott was born, Mother pleaded
guilty to the offense, received deferred adjudication, and was placed on community
supervision for four years. See In re V.V., 349 S.W.3d at 554 (stating endangering
conduct includes criminal activity because such activity exposes parent to
incarceration) (citing Boyd, 727 S.W.2d at 533). The terms of her community
supervision prohibited her from, among other things, committing illegal acts, using
any controlled substances, or possessing a firearm, and she was required to submit
to drug tests.
16
Although the offense occurred in April 2015, Mother pleaded guilty and was placed
on community supervision in March 2016.
34
In January 2018, Mother and two of her relatives went to Father’s friend’s
home and took Elliott from Father at gunpoint. The record reflects Mother was
charged with aggravated assault with a deadly weapon stemming from this incident.
The State moved to adjudicate guilt in May 2018 based in part on this incident and
the motion was still pending as of the date of trial. According to Mother, she
retrieved Elliott with Father’s permission and Father, who was angry she brought
her brother with her to the home, retaliated against her by making a bogus claim to
the Department and the police. Mother testified that Father recanted, and the charges
were dismissed because Father refused to cooperate with the State. Father, however,
testified that Mother and her relatives took Elliott from him at gunpoint, and he
denied that he refused to cooperate. Father testified that he repeatedly called the
district attorney’s office and inquired about the status of the case after Mother was
charged. Based on Father’s testimony, the trial court could have found that Mother
not only violated the law by taking Elliott from Father by gunpoint, but she also
violated the terms of her community supervision by possessing a firearm and
committing the underlying illegal conduct, thus, subjecting herself to future
incarceration. See In re V.V., 349 S.W.3d at 554 (stating endangering conduct
includes criminal activity because such activity exposes parent to incarceration)
(citing Boyd, 727 S.W.2d at 533); see also Robinson, 89 S.W.3d at 686–87 (holding
parent’s violation of terms of community supervision constituted endangering
35
conduct for purposes of Section 161.001(b)(1)(E)). Although Mother denied having
a firearm or taking Elliott against Father’s wishes, the trial court, as the sole arbiter
of witness credibility, was entitled to disbelieve Mother’s testimony and credit
Father’s testimony on this point. See In re J.O.A., 283 S.W.3d at 346 (recognizing
that factfinder, not appellate court, is sole arbiter of witness’s credibility and
demeanor); see generally In re T.G.R.-M., 404 S.W.3d at 15 (considering dismissed
criminal charges when accessing sufficiency of evidence supporting termination
under Section 161.001(b)(1)(E)).
After Father contacted the Department about the January 2018 incident, the
Department opened an investigation. In February 2018, Mother submitted to a drug
test and her hair sample tested positive for cocaine. The Child Advocates report,
which was admitted into evidence without objection, reflects Mother also tested
positive for cocaine and marijuana in May 2018. Although Mother denied using
drugs and testified that she probably tested positive for cocaine because she handled
a lot of cash at work, the trial court was entitled to disbelieve her testimony. See In
re J.O.A., 283 S.W.3d at 346 (noting trial court’s role as arbiter of witness
credibility). Mother’s use of illegal drugs, as evidenced by her positive drug tests,
is another violation of the terms of her community supervision, thus, exposing her
to the likelihood of incarceration. See Robinson, 89 S.W.3d at 686–87 (identifying
36
parent’s violation of terms of community supervision as endangering conduct for
purposes of Section 161.001(b)(1)(E)).
In September 2018, the Department received another referral for negligent
supervision of Elliott by Mother stemming from allegations that Mother was
observed driving at a high rate of speed with three kids in the car and one of the
children was hanging out of the car’s window. Although Mother denied the incident
occurred, the trial court, as the sole arbiter of a witness’ credibility, was entitled to
disbelieve her testimony. See In re J.O.A., 283 S.W.3d at 346.
In January 2019, the Department received another referral for negligent
supervision of Elliott by Mother, alleging Mother left two-year-old Elliott
unsupervised for approximately two hours in a car parked at the hotel where Mother
worked. At trial, Mother acknowledged that she left Elliott in the car, but she
disputed that she was gone long and testified that she only left him long enough to
go inside to get her check. The record reflects this was the third time Mother had
left one of her young children unsupervised.
In March 2019, Mother was interviewed at ATF’s offices and, by her own
admission, she left her children at home alone with a handgun in a bathroom drawer.
She denied, however, that the gun was accessible to the children and testified that
she did not know if it was loaded. Even if there is no evidence that Elliott was left
alone at this time as Mother contends, as opposed to his other siblings, this evidence
37
is nonetheless relevant for purposes of evaluating Mother’s sufficiency challenge
under Subsection E because “endangering conduct is not limited to actions directed
towards” the child. See id. at 345; see also Walker, 312 S.W.3d at 617 (“Evidence
as to how a parent has treated another child or spouse is relevant regarding whether
a course of conduct under section 161.001(b)(1)(E) has been established.”).
In July 2019, Mother was indicted in federal court for three counts of robbery
and three counts of knowingly carrying, using, and brandishing a handgun, after she
allegedly robbed three people on November 13, 2018, November 17, 2018, and
January 6, 2019. The federal charges were pending as of trial and exposed her to the
further likelihood of incarceration. See In re V.V., 349 S.W.3d at 554 (stating
endangering conduct includes criminal activity because such activity exposes parent
to incarceration) (citing Boyd, 727 S.W.2d at 533).17
Thus, the record reflects that Mother has a pattern of unsafe parenting,
including leaving her young children unsupervised on four occasions, with access to
handguns on two of those occasions. As a result of these incidents, Mother was
convicted of the state jail felony offenses of child endangerment and child
abandonment with intent to return, and Evan and Erik’s paternal grandmother was
given conservatorship of the boys. These state jail felony convictions are only part
17
The record reflects that Mother was later convicted and sentenced to fourteen years’
incarceration.
38
of Mother’s extensive criminal history, which spans over thirteen years. All of
Mother’s criminal conduct, arrests, charges, and convictions constitute endangering
conduct because they exposed her to the likelihood of incarceration, and in some
cases, resulted in incarceration. Taken together, this evidence establishes that
Mother engaged in a course of conduct that endangered Elliott’s physical or
emotional well-being. Jordan, 325 S.W.3d at 723 (stating evidence must
demonstrate voluntary, deliberate, and conscious course of conduct by parent).
Mother argues there is insufficient evidence she left Elliott unattended, as
opposed to his siblings, because while she admitted that she had left her “children”
unattended three or four times, “the record is unclear as to whether she ever left
Elliott unattended.” Although she disputed the length of time Elliott was alone,
Mother admitted she left Elliott unsupervised in January 2019 in a car parked outside
of the hotel where she was employed. Furthermore, regardless of whether Mother
left Elliott unsupervised, as opposed to one of his siblings, such evidence is
nonetheless relevant with respect to whether she engaged in an endangering course
of conduct for purposes of Section 161.001(b)(1)(E). See In re J.O.A., 283 S.W.3d
at 345 (“[E]ndangering conduct is not limited to actions directed towards the child”
and “may include the parent’s actions before the child’s birth, while the parent had
custody of older children”).
39
With respect to her criminal history, Mother argues that she “does not have
the kind of criminal history that warrants a finding that she engaged in conduct that
endangered the child’s physical health or emotional development” because her four
convictions occurred before Elliott’s birth and three of her convictions are for
“low-level offenses” that resulted in minimal jail time. Endangering conduct,
however, includes conduct that occurred before the child was born. See id. (stating
“endangering conduct may include the parent’s actions before the child’s birth”).
While she admits she was also convicted in 2010 of the state jail felony offense of
child endangerment and was sentenced to six months in state jail, and she pleaded
guilty in 2015 to the state jail felony offense of abandoning a child with the intent to
return, for which she received deferred adjudication with a period of community
supervision for four years, Mother contends “[t]hese are not violent crimes, nor was
any child injured in any of them.” Mother’s argument is not persuasive.
Endangering conduct need not be violent or result in harm or injury to a child, it
must only expose the child to loss, injury, or jeopardy. See Boyd, 727 S.W.2d at 533
(stating although endanger means “more than a threat of metaphysical injury or the
possible ill effects,” “it is not necessary that the conduct be directed at the child or
that the child actually suffers injury”). Furthermore, even non-violent, misdemeanor
offenses, and arrests for criminal conduct that do not result in conviction will support
a finding of endangerment. See In re V.V., 349 S.W.3d at 554 (stating endangering
40
conduct includes criminal activity because such activity exposes parent to
incarceration) (citing Boyd, 727 S.W.2d at 533); see also In re T.G.R.-M., 404
S.W.3d at 15 (“Although the charges stemming from these two arrests were
ultimately dismissed, each time the mother was jailed, she was absent from T.G.R.-
M.’s life and was not able to provide for T.G.R.-M.’s physical and emotional
needs.”).
Mother also argues there is no evidence of ongoing drug use on her part. The
record reflects Mother tested positive for cocaine in February 2018 and positive for
cocaine and marijuana in May 2018 while the Department had a case pending against
her stemming from the January 2018 event when she allegedly removed Elliott from
Father’s care at gunpoint. A parent’s use of illegal drugs constitutes endangering
conduct under Subsection E because “it exposes the child to the possibility that the
parent may be impaired or imprisoned.” Walker, 312 S.W.3d at 617; see also In re
J.O.A., 283 S.W.3d at 345. In this case, Mother’s positive drug tests occurred during
a prior investigation by the Department and while she was also on community
supervision for the 2015 offense of child abandonment. Mother’s drug use violated
the terms of her community supervision and thus constitutes endangering conduct
for purposes of Section 161.001(b)(1)(E). See Robinson, 89 S.W.3d at 686–87
(stating parent’s violation of terms of community supervision is endangering
conduct under Section 161.001(b)(1)(E)). Although not “ongoing,” Mother’s past
41
drug use is nevertheless part of a course of conduct that endangered Elliott’s
well-being because it exposed Mother to future jail time. See Walker, 312 S.W.3d
at 617.
Finally, Mother acknowledges there is some evidence that, if believed,
establishes she removed Elliott from Father’s possession at gunpoint in January
2018. She argues, however, that evidence of a single incident of endangering
conduct is insufficient to support a finding under Section 161.001(b)(1)(E). While
we agree with Mother that there must be evidence of an ongoing course of conduct,
as opposed to a single event, to support a finding under Subsection E, we disagree
that the January 2018 event is the only evidence of endangering conduct in this case.
See Jordan, 325 S.W.3d at 723 (stating evidence must demonstrate voluntary,
deliberate, and conscious course of conduct by parent). As previously discussed, the
record reflects that among other things, Mother has a pattern of leaving her young
children, including Elliott, unsupervised and, on at least two occasions, with access
to firearms.
Viewing the evidence in the light most favorable to trial court’s finding, we
conclude the trial court could have formed a firm belief or conviction that Mother
engaged in conduct or knowingly placed Elliott with persons who engaged in
conduct that endangered his physical or emotional well-being in violation of Section
161.001(b)(1)(E). See In re J.F.C., 96 S.W.3d at 266. Further, in view of the entire
42
record, we conclude that the disputed evidence is not so significant as to prevent the
trial court from forming a firm belief or conviction that Mother engaged in conduct
or knowingly placed Elliott with persons who engaged in conduct that endangered
his physical or emotional well-being in violation of Section 161.001(b)(1)(E). In re
J.F.C., 96 S.W.3d at 266; see also In re Commitment of Stoddard, 619 S.W.3d at
674.
Because we conclude the evidence is legally and factually sufficient to support
the trial court’s finding under Section 161.001(b)(1)(E), we need not address
Mother’s arguments that the evidence is legally and factually insufficient to support
the trial court’s finding under Sections 161.001(b)(1)(D), (N), and (O). See In re
A.V., 113 S.W.3d at 362 (stating only one predicate finding is necessary).
We overrule Mother’s second, third, fourth, and fifth issues.
C. Best Interest of Child
In her sixth issue, Mother argues there is legally and factually insufficient
evidence supporting the trial court’s finding that termination of her parental rights
was in Elliott’s best interest. See TEX. FAM. CODE § 161.001(b)(2).
1. Applicable Law
The purpose of the State’s intervention in the parent-child relationship is to
protect the best interests of the children, not to punish parents for their conduct. In
re A.V., 113 S.W.3d at 361. There is a strong presumption that the best interest of a
43
child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). But there is also a presumption that the permanent placement of a
child in a safe environment is in the child’s best interest. TEX. FAM. CODE
§ 263.307(a); see also In re B.J.C., 495 S.W.3d 29, 35 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (noting child’s need for permanence through establishment of
stable, permanent home is paramount consideration in best-interest determination).
To determine whether parental termination is in a child’s best interest, courts
may consider the following non-exclusive factors: (1) the desires of the child; (2) the
present and future physical and emotional needs of the child; (3) the present and
future emotional and physical danger to the child; (4) the parental abilities of the
persons seeking custody; (5) the programs available to assist those persons seeking
custody in promoting the best interest of the child; (6) the plans for the child by the
individuals or agency seeking custody; (7) the stability of the home or proposed
placement; (8) acts or omissions of the parent that may indicate the existing parent-
child relationship is not appropriate; and (9) any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). We may also
consider the statutory factors set forth in Texas Family Code Section 263.307,
including: (1) the child’s age and physical and mental vulnerabilities; (2) whether
there is a history of abusive or assaultive conduct by the child’s family or others who
44
have access to the child’s home; (3) 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; (4) the willingness and ability
of the child’s family to effect positive environmental and personal changes within a
reasonable period of time; (5) whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and
nutritional care, a safe physical home environment, and an understanding of the
child’s needs and capabilities; and (6) whether an adequate social support system
consisting of an extended family and friends is available to the child. TEX. FAM.
CODE § 263.307(b); In re R.R., 209 S.W.3d at 116.
This list of factors is not exhaustive, and evidence is not required on every
factor to support a finding that termination of parental rights is in the child’s best
interest. Id.; In re D.R.A., 374 S.W.3d at 533. Courts may consider circumstantial
evidence, subjective factors, and the totality of the evidence as well as direct
evidence when conducting a best-interest analysis. See In re E.D., 419 S.W.3d 615,
620 (Tex. App.—San Antonio 2013, pet. denied). Evidence supporting termination
under one of the predicate grounds listed in Section 161.001(b)(1) may also be
considered in support of a finding that termination is in the best interest of the child.
See In re 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). A parent’s past conduct is
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probative of his future conduct when evaluating the child’s best interest. See In re
O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San Antonio 2013, no pet.); see also
Jordan, 325 S.W.3d at 724. A factfinder may also infer that past conduct
endangering the well-being of a child may recur in the future if the child is returned
to the parent when assessing the best interest of the child. See In re D.M., 452
S.W.3d 462, 471 (Tex. App.—San Antonio 2014, no pet.).
2. Analysis
Multiple factors support the trial court’s finding that termination of Mother’s
parental rights was in Elliott’s best interest, the first of which is Mother’s lengthy
history with the Department regarding Elliott and her two oldest children. In 2010,
Mother left Elliott’s half-brother, who was two years old at the time, at home alone
with access to a firearm. In 2015, Mother left Elliott’s two older half-brothers at
home alone when they were eight years old and three years old, and the children
were found wandering in the apartment complex’s parking lot. Despite being
convicted of state jail felony offenses for these incidents and losing custody of two
of her children because of the 2015 occurrence, in January 2019 Mother nevertheless
left two-year-old Elliott unsupervised in a car in the parking lot of a hotel for almost
two hours and in March 2019, Mother left her children at home alone with access to
a firearm when she was being interviewed at the ATF’s offices. The 2019 events
and the September 2018 incident when Mother was observed speeding with three
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children in her car, and one child hanging out the window, occurred while this case
was pending. Notably, the Department opened the case in January 2018 after Mother
removed Elliott from Father’s possession by gunpoint. These facts, which also
support a finding of endangerment under Subsection E of the Family Code, establish
a pattern of conduct demonstrating Mother’s inability or unwillingness to provide
safety and stability for her young children. See Holley, 544 S.W.2d at 372
(recognizing stability of home, ability to provide for child’s current and future
physical and emotional needs, parental ability of persons seeking custody, and acts
or omissions by parent indicating parent-child relationship is not appropriate as best-
interest factors); see also In re C.H., 89 S.W.3d at 28 (stating evidence supporting
predicate finding may be probative of best-interest determination); In re S.G.S, 130
S.W.3d 223, 238 (Tex. App.—Beaumont 2004, no pet.) (stating factfinder could
infer from actual neglect of one child that physical and emotional well-being of other
children was also jeopardized).
Elliott was six years old when the trial court rendered its final decree
terminating Mother’s parental rights. In light of Mother’s pattern of leaving Elliott
and her other young children unsupervised, Elliott’s young age also weighs in favor
of termination of Mother’s rights. See In re A.L.B., No. 01-17-00547-CV, 2017 WL
6519969, at *5 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (mem. op.)
(stating young ages of the children—five and six years old—rendered them
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vulnerable if left with parent unable or unwilling to protect them or attend to their
needs).
Mother’s continued criminal conduct also supports the trial court’s finding
that termination of her parental rights was in Elliott’s best interest. See In re V.V.,
349 S.W.3d at 554 (stating intentional criminal activity that exposes parent to
incarceration is conduct that endangers child’s physical and emotional well-being).
The record reflects Mother pleaded guilty to the state jail felony offense of
endangering a child in 2010 and abandoning a child with intent to return in 2015.
She was eventually sentenced to six months in state jail for the 2010 offense and,
although she had been placed on deferred adjudication with respect to the 2015
offense, the State filed a motion to adjudicate guilt with respect to that charge in
May 2018. The motion to adjudicate was pending at the time of trial. Mother also
pleaded guilty to (1) carrying a weapon in 2006 when a handgun was found in her
car, (2) theft in 2012, and (3) failing to identify herself to a peace officer in 2015.
See In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.) (noting
evidence of parent’s inability to maintain lifestyle free from arrests and
incarcerations is relevant to best-interest determination); see also In re E.C., No. 02-
20-00022-CV, 2020 WL 2071755, at *7 (Tex. App.—Fort Worth Apr. 30, 2020, no
pet.) (mem. op.) (stating child is subjected “to ongoing uncertainty regarding who
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will take care of him” when “parent repeatedly commits criminal acts that subject
the parent to incarceration”).
Most recently, Mother was in a federal detention center at the time of trial
because she had been indicted for robbery after she allegedly robbed hotel
employees while knowingly carrying, using, and brandishing a handgun. Mother
was also charged with the felony offense of aggravated assault with a deadly weapon
after she allegedly removed Elliott from Father’s care at gunpoint in January 2018,
but the charge was later dismissed. Although the federal charges were pending as
of trial and the aggravated assault charge did not result in a conviction, these charges
are nevertheless relevant for purposes of determining whether the termination of
Mother’s parental rights is in Elliott’s best interest. See In re T.G.R.-M., 404 S.W.3d
at 15 (concluding that although criminal charges were ultimately dismissed, each
time mother was jailed she was absent from child’s life and unable to provide for
child’s physical and emotional needs).
With respect to the plans for placement by the parties seeking custody, the
record reflects that Elliott was in therapy and living in a foster home when Mother’s
trial took place. Clark and Roy confirmed that although it was a non-adoptive
placement, Elliott’s foster home was meeting all of Elliott’s emotional and physical
needs and his foster parent would keep him long-term until the Department found a
permanent placement for the child. By the time Father’s new trial commenced, the
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Department believed it was in Elliott’s best interest to place Elliott with Valerie, the
mother of one of Elliott’s half-siblings. Clark, Roy, and Valerie testified that Elliott
was well bonded with Valerie and her family and he was excited about living with
them. When Elliott visited with Valerie’s family, he did not want to leave. The
Department did not have any concerns about Valerie’s ability to meet Elliott’s
current and future emotional and physical needs and provide a safe, and stable home
for Elliott.
Even excluding the evidence of Elliott’s placement with Valerie, this factor
would still support the court’s best-interest finding because the trial court could have
reasonably determined that the Department’s plan to keep Elliott in foster care while
it searched for the best placement was superior to Mother’s plan to place Elliott with
David immediately. Even though Elliott was “well bonded” with Mother and his
younger sister who lived with David, David’s home study had been approved and,
at that time, the Department favored placing Elliott with David, the Department and
Child Advocates were still concerned about David’s ability to protect Elliott from
Mother in the event she was released from prison. Although Mother testified that
she would follow the court’s rules with respect to access to Elliott if Elliott were
placed with David, Mother admitted she had a habit of not following the rules, and
as the arbiter of witness credibility, the trial court was at liberty to disbelieve her
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testimony. See In re J.O.A., 283 S.W.3d at 346 (recognizing that factfinder, not
appellate court, is sole arbiter of witness’s credibility and demeanor).
Although Mother testified that she completed her family plan and denied she
ever refused to work all of her services, Clark testified that Mother had not
completed her plan before she was arrested in July 2019, and the record reflects
Mother refused to comply with the Department’s plan in 2018. The trial court could
have credited Clark’s testimony and the record over Mother’s testimony and
concluded that Mother had not fully availed herself of the services offered to her
while the case was pending. See Holley, 544 S.W.2d at 372 (recognizing services
available to persons seeking custody as best-interest factor); see TEX. FAM. CODE
§ 263.307(b) (recognizing willingness and ability of child’s family to seek out,
accept, and complete counseling services and to cooperate with and facilitate
appropriate agency’s close supervision as best-interest factor).
With respect to excuses for parent’s acts or omissions, Mother argues that she
left her children at home alone because she was a single mother who did not have
anyone available to care for the children while she was at work. She explained that
unlike in the past, her children were older, and she now has “stable support” to help
overcome those adversities. Elliott, however, was only four years old at the time of
Mother’s trial in 2020 and unable to be left unsupervised. To the extent Mother is
referring to David as her current stable support system, the record reflects David and
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Mother were together while this case was pending, including in March 2019 when
by her own admission, she left the children at home alone with access to a handgun.
See Holley, 544 S.W.2d at 371–72 (recognizing excuses for parent’s acts or
omissions as factor for purposes of best-interest analysis).
Viewing the evidence in the light most favorable to trial court’s finding, we
conclude the trial court could have formed a firm belief or conviction that
termination of Mother’s parental rights was in Elliott’s best interest. See In re J.F.C.,
96 S.W.3d at 266. Further, in view of the entire record, we conclude that the disputed
evidence is not so significant as to prevent the trial court from forming a firm belief
or conviction that termination of Mother’s parental rights was in Elliott’s best
interest. Id.; see also In re Commitment of Stoddard, 619 S.W.3d at 674.
We overrule Mother’s sixth issue.
Conservatorship
In her seventh issue, Mother argues the trial court abused its discretion by
(1) naming Valerie as Elliott’s sole managing conservator in the May 10, 2022
decree, and (2) not naming Mother as a possessory conservator because the evidence
supporting the finding required by Texas Family Code Section 153.131 is legally
and factually insufficient. See TEX. FAM. CODE § 153.131(a) (requiring trial court to
appoint “parent” as managing conservator “unless the court finds that appointment
of the parent or parents would not be in the best interest of the child because the
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appointment would significantly impair the child’s physical health or emotional
development”).
Conservatorship determinations are reviewed for an abuse of discretion and
will be reversed only if the decision is arbitrary and unreasonable. In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007); In re J.D.G., 570 S.W.3d at 856. An order terminating
the parent-child relationship divests a parent of legal rights and duties with respect
to the child. See TEX. FAM. CODE § 161.206(b); see also In re J.D.G., 570 S.W.3d
at 856. Once we overrule a parent’s challenge to an order terminating her parental
rights, the trial court’s appointment of the Department or another person as the
child’s sole managing conservator may be considered a “consequence of the
termination.” In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied); see also In re J.D.G., 570 S.W.3d at 856.
Because we have overruled Mother’s challenges to the portion of the trial
court’s decree terminating her parental rights, the decree divested Mother of her
legal rights and duties related to Elliott. See TEX. FAM. CODE § 161.206(b); In re
J.D.G., 570 S.W.3d at 856. Consequently, Mother lacks standing to challenge the
portion of the decree appointing Valerie as Elliott’s sole managing conservator. See
In re J.D.G., 570 S.W.3d at 856 (affirming termination of mother’s parental rights
and holding that mother, who had been divested of her legal rights to child, could
not challenge conservatorship determination).
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Mother also argues the trial court erred by not appointing her as one of
Elliott’s possessory conservators. When a parent is not appointed as a sole or joint
managing conservator, Texas Family Code Section 153.191 requires trial courts to
appoint the parent as a possessory conservator “unless it finds that the appointment
is not in the best interest of the child and that parental possession or access would
endanger the physical or emotional welfare of the child.” TEX. FAM. CODE
§ 153.191. Section 153.191, however, only applies to parents, and Mother’s parental
rights to Elliott were terminated. See TEX. FAM. CODE § 101.024(a) (stating
“parent,” as used in Family Code, “does not include a parent as to whom the parent-
child relationship has been terminated”); see also Z.A.R. v. Tex. Dep’t of Family &
Protective Servs., No. 14-20-00511-CV, 2020 WL 7866800, at *15 (Tex. App.—
Houston [14th Dist.] Dec. 31, 2020, pet. denied) (mem. op.) (overruling mother’s
argument trial court erred by not appointing her as child’s possessory conservator
because court failed to make requisite findings pursuant to Family Code Section
153.191 and noting “this section only applies to ‘a parent’ and Mother’s parental
rights to Bobby were terminated by the trial court”).
We overrule Mother’s seventh issue.
Conclusion
We affirm the trial court’s decree of termination.
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Veronica Rivas-Molloy
Justice
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
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