in the Interest of D.L.W., J.A.W. and A.M.M., Children v. Department of Family and Protective Services

Opinion issued December 22, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00507-CV
———————————
IN THE INTEREST OF D.L.W.W., J.A.W., AND A.M.M., CHILDREN
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2018-03930J
OPINION
In this accelerated appeal,1 appellant, mother, challenges the trial court’s
order, entered after a bench trial, terminating her parental rights to her minor child,
A.M.M., and awarding the Department of Family and Protective Services (“DFPS”)
sole managing conservatorship of mother’s minor children, D.L.W.W., J.A.W., and
1
See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4.
A.M.M. (collectively, the “children”).2 Appellant, father, challenges the trial court’s
order, entered after a bench trial, terminating his parental rights to his minor child,
A.M.M. In four issues, mother contends that the trial court erred in appointing DFPS
as the sole managing conservator of the children3 and the evidence is legally and
factually insufficient to support the trial court’s findings that she engaged, or
knowingly placed A.M.M. with persons who engaged, in conduct that endangered
the child’s physical and emotional well-being;4 she failed to comply with the
provisions of a court order that specifically established the actions necessary for her
to obtain the return of A.M.M.;5 and termination of her parental rights was in the
best interest of A.M.M.6 In three issues, father contends that the evidence is legally
and factually insufficient to support the trial court’s findings that he engaged, or
knowingly placed A.M.M. with persons who engaged, in conduct that endangered
the child’s physical and emotional well-being;7 he failed to comply with the
provisions of a court order that specifically established the actions necessary for him
2
At the time the trial court entered its order on June 24, 2020, D.L.W.W. was twelve
years old, J.A.W. was ten years old, and A.M.M. was two years old. The trial court
did not terminate mother’s parental rights to D.L.W.W. and J.A.W.
3
See TEX. FAM. CODE ANN. § 263.404; see also id. § 161.205.
4
See id. § 161.001(b)(1)(E).
5
See id. § 161.001(b)(1)(O).
6
See id. § 161.001(b)(2).
7
See id. § 161.001(b)(1)(E).
2
to obtain the return of A.M.M.;8 and termination of his parental rights was in the best
interest of A.M.M.9
We affirm in part and reverse and remand in part.
Background10
On August 2, 2018, DFPS filed a petition seeking termination of mother’s
parental rights to the children and termination of father’s parental rights to A.M.M.
DFPS also sought managing conservatorship of the children.
DFPS Caseworker Deese
At trial, DFPS caseworker Natasha Deese testified that DFPS filed its petition
seeking termination of the parental rights of mother and father “due to substance
abuse” and because mother and father were “not compliant” with DFPS’s Family
Based Safety Services (“FBSS”).11 Deese, without detail or timeframe, stated that
mother and father “kept testing positive” for marijuana and cocaine use.
8
See id. § 161.001(b)(1)(O).
9
See id. § 161.001(b)(2).
10
The background portion of the opinion discusses the evidence presented at trial.
See In re E.F., 591 S.W.3d 138, 142 n.4 (Tex. App.—San Antonio 2019, no pet.)
(“Although we recognize the trial court and the parties in this proceeding had many
hearings before the date of trial, we emphasize that none of the previous hearings
constitute evidence that can support the trial court’s order terminating a parent’s
rights. The only evidence that can support the trial court’s order is that evidence
admitted at trial.” (emphasis added)).
11
See generally In re L.A., No. 02-16-00403-CV, 2017 WL 1289362, at *1 (Tex.
App.—Fort Worth Apr. 6, 2017, no pet.) (mem. op.) (“[T]he purpose of FBSS is to
provide a less stringent alternative to legal action or removal of [a] child by
3
Deese further testified that mother and father participated in narcotics-use and
alcohol-use testing during this case. Mother and father tested negative for narcotics
use on November 20, 2019.12 Mother and father also tested negative for narcotics
use in September 2019. Father tested negative for narcotics use on July 10, 2019.
And Deese stated that mother and father tested negative for narcotics use on May 1,
2019.13 When asked whether mother and father had tested negative for narcotics use
for “multiple months,” Deese responded, “That is correct.” Deese stated that mother
had not tested positive for narcotics use by urinalysis since August 23, 2018. Deese
also confirmed that father had tested negative for alcohol use “over the last year and
a half, almost two years” before trial.14 Father last tested positive for narcotics use
in September 2018, right after the termination case began.15
At the time of trial, the children were placed in separate foster homes, which
Deese described as “good.” The children did not have any special needs.
providing families with service plans using resources within the family’s
community.”).
12
Deese stated that November 20, 2019 was the last time that mother and father were
asked to submit to narcotics-use testing.
13
Deese contradicted herself during her testimony and stated that mother last tested
positive for cocaine use on May 1, 2019 by a hair-follicle test.
14
Deese contradicted herself during her testimony and stated that father last tested
positive for alcohol use on July 10, 2019.
15
Deese stated that father tested positive for cocaine, benzodiazepine, and alcohol use
in September 2018.
4
Deese stated that DFPS was seeking termination of the parental rights of
mother and father because they failed to comply with their Family Service Plans
(“FSPs”)16 and DFPS had not received a recommendation from a therapist stating
that the children should be returned home.17 However, Deese explained that
D.L.W.W. and J.A.W.’s therapist did not say that the children should not be returned
to mother’s care or father’s care, DFPS had simply not received any
recommendation or feedback from the therapist.18 Deese acknowledged that mother
and father had engaged in the services required by their FSPs and mother and father
had completed “everything” on their FSPs. Yet, Deese stated that termination of
mother’s parental rights to the children was in the children’s best interest because
they were young and DFPS had a lot of permanent-managing conservatorship cases
which “get stagnant.”
In regard to family therapy, Deese stated that the requirement of participating
in family therapy was added to mother’s and father’s FSPs later on in the case, and
mother and father were still participating in family-therapy sessions with D.L.W.W.
16
The trial court did not admit into evidence at trial a copy of either mother’s or
father’s FSP. See In re E.F., 591 S.W.3d at 142 n.4 (“The only evidence that can
support the trial court’s order is that evidence admitted at trial.” (emphasis added)).
17
During Deese’s testimony, she did not clarify what she meant by “return[ed] home,”
i.e., to whose home the children would be returning.
18
Deese did not testify that DFPS had actually sought a recommendation from
D.L.W.W. and J.A.W.’s therapist as to whether the children should be “return[ed]
home.”
5
and J.A.W. at the time of trial.19 When family-therapy sessions began in January
2020, mother and father were participating in face-to-face visits with the family
therapist. Mother and father then began participating in family-therapy sessions via
Zoom, a videoconferencing platform, because of the COVID-19 pandemic.20 Deese
did not know the date of the last family-therapy session before trial. Although Deese
stated that father had been absent from many Zoom-family-therapy sessions, she
stated that he did not own a computer; he only had a cellular telephone.21
As to mother, Deese testified that mother had her own home, which was stable
and suitable for the children. Mother did not have a job, but she received disability
payments which DFPS considered to be mother’s income. At the time of trial,
mother was participating in a “12-Step Program” through Alcoholics Anonymous
19
It is unclear from the record whether mother and father were required to participate
in family-therapy sessions with A.M.M. or whether A.M.M. participated in
family-therapy sessions with her older siblings or parents.
20
See In re Landstar Ranger, Inc., No. 06-20-00047-CV, 2020 WL 5521136, at *4
(Tex. App.—Texarkana Sept. 15, 2020, no pet.) (mem. op.) (noting that “[a]s a
result of the onset of the COVID-19 pandemic, on March 13, 2020, Texas Governor
Greg Abbott issued a disaster proclamation certifying that COVID-19 posed an
imminent threat of disaster for all counties in the state of Texas[, and] . . . Governor
Abbott instituted health protocols, such as minimizing in-person contact,
maintaining six feet between individuals, and suggesting that people wear masks
when in the presence of other individuals”); see also United States v. Sheppard,
Criminal Action No. 5:17-CR-00026-TBR, 2020 WL 6534326, at *1 (W.D. Ky.
Nov. 5, 2020) (mem. op. and order) (noting “Zoom” is “a video conferencing
platform” that has been utilized during COVID-19 pandemic due to safety and
health concerns surrounding in-person proceedings).
21
The record does not indicate whether father’s cellular telephone was equipped to
use Zoom.
6
(“AA”). Mother was working with a sponsor, and she was on “Step 6” of the
program. There was no requirement that mother complete her “12-Step Program”
for the children to be returned to her care, but completion of the program was just
something that DFPS “would like to see.”
Deese also testified that mother had completed her required parenting classes
and her psychosocial evaluation, she had followed the recommendations from her
psychosocial evaluation, and she had finished individual therapy. According to
Deese, mother had been “actively participating in th[e] case,” had attended court
hearings, and had visits with the children. Deese described mother’s visits with the
children as “good.” Deese expressed concern that mother and father had two
incidents during their visits in which they disagreed in front of the children, but
Deese stated that there were no physical altercations between mother and father.22
Deese described the two incidents as “a verbal back and forth,” and she stated that it
was not unexpected that mother and father would bicker during a stressful situation.
Deese noted that DFPS had considered returning the children to mother’s care,
but she stated that DFPS wanted “a recommendation from a professional person
stating that . . . it[] [was] okay to return the[] kids.”23 Deese stated that she was
22
It is unclear from the record whether all three children attended visits with mother
and father together or whether mother’s and father’s visits with A.M.M. were
separate from their visits with D.L.W.W. and J.A.W.
23
Deese did not explain the type of “professional person” from whom DFPS wanted
a recommendation, and she did not indicate that DFPS had actually sought a
7
concerned about mother’s purported and unspecified “intellectual disabilities”
because Deese thought it would impact mother’s ability to parent the children.24
Deese acknowledged that mother had never been diagnosed with any intellectual
disabilities.
Deese testified that mother loved the children, and the children loved her.
D.L.W.W. and J.A.W. had stated that they wanted to return to mother’s care. When
mother called D.L.W.W. for his birthday, she was “very sweet to him[] [and] kind,”
and mother was “part of” J.A.W.’s birthday celebration as well. A.M.M.’s foster
parent had described mother’s bond with A.M.M. as “healthy” and stated that mother
was “positive around” A.M.M. during their Zoom visitations. A.M.M. could not
verbalize with whom she would like to live. When Deese had observed mother’s
visits with the children, mother acted appropriately. Deese had not seen mother hurt
the children or “say something negative.”
As to father, Deese testified that father lived with his mother and he had been
employed “off and on with his job.” Deese did not know if father had a job at the
time of trial, but she speculated that “he probably ha[d] obtained a new one.” Deese
believed that father’s home with his mother was not stable because his name was not
recommendation from any “professional person” about the children returning to
mother’s care.
24
Deese provided little detail concerning mother’s purported “intellectual disability,”
beyond stating that mother “thank[ed] God for everything” and “for her distress, it’s
kind of hard.”
8
on the lease agreement and Deese thought that father’s mother had a “criminal
history.”25 Deese opined that father “need[ed] his own place.” However, Deese
testified that it had been discussed that father could be awarded possessory
conservatorship of A.M.M. regardless of whether A.M.M. was returned to mother’s
care or if she stayed in her current foster placement. According to Deese, DFPS did
not “have a problem” with father being appointed as a possessory conservator of
A.M.M.
Deese also testified that father was participating in a “12-Step Program” with
a sponsor and he had previously show her “slips” indicating that he was participating
in Narcotics Anonymous (“NA”).
In regard to father’s visits with A.M.M., Deese stated that father sometimes
made unspecified “inappropriate comments,” but this was not expanded upon.
Deese could not testify as to whether father and A.M.M. were bonded, but she stated
that when their visits were in-person, A.M.M. recognized father. During Zoom
visitations, father talked to A.M.M. Father also had visits with D.L.W.W. and
J.A.W. even though he was not their biological father. Father was “pretty good”
with them, and they were bonded with father.
25
The record does not contain any detail as to the “criminal history” of father’s
mother.
9
As to D.L.W.W. and J.A.W., Deese testified that they were not in an adoptive
placement or a permanent home at the time of trial and their current caregiver did
not want to be awarded conservatorship of them. Deese hoped that DFPS could find
D.L.W.W. and J.A.W. an adoptive home.
As to A.M.M., Deese described her current foster placement as safe. A.M.M.
had been in the same foster home since the case started. A.M.M.’s foster family was
willing to raise her, even if A.M.M. still had contact with mother and father. A.M.M.
was thriving in her placement, and Deese believed that it was in A.M.M.’s best
interest for her to remain in her current foster placement.
Child Advocates Volunteer Philo
Child Advocates Inc. (“Child Advocates”) volunteer Jillian Philo testified that
it was in the best interest of A.M.M. for mother’s and father’s parental rights to
A.M.M. to be terminated because A.M.M. had been in a stable, loving foster home
for most of her life.26 Philo stated that A.M.M.’s current foster placement was an
adoptive home.
According to Philo, father did not have stable housing and A.M.M. was
vulnerable due to her age. Philo acknowledged that father had completed his FSP,
26
Philo acknowledged that a Child Advocates’ report had been filed with the trial
court that recommended that the parental rights of mother and father not be
terminated. A copy of this report was not admitted into evidence at trial. See In re
E.F., 591 S.W.3d at 142 n.4 (“The only evidence that can support the trial court’s
order is that evidence admitted at trial.” (emphasis added)).
10
and father had not tested positive for alcohol use since July 2019. During his
in-person visits with A.M.M., father was appropriate with the child. Father and
A.M.M. were bonded, and father loved A.M.M. A.M.M.’s foster family was willing
to allow father to remain in A.M.M.’s life if acceptable terms could be reached.
Father “want[ed] his daughter back.”
Philo cited mother’s purported intellectual “impairment” as a reason for
A.M.M. not to be returned to her care, and generally, without detail, concluded that
an unspecified grandfather could not provide support for mother because abuse
allegations had “com[e] out.”27 Philo acknowledged that mother had never been
diagnosed with an intellectual impairment or intellectual disability, and no expert
had ever reported that mother had an intellectual problem.
As to D.L.W.W. and J.A.W., Philo recommended that mother’s parental rights
to D.L.W.W. and J.A.W. not be terminated. Instead, DFPS should be awarded
managing conservatorship of D.L.W.W. and J.A.W. so that mother could be given
more time to address any issues and could be reunited with D.L.W.W. and J.A.W.
Philo also generally stated that D.L.W.W. and J.A.W.’s therapist had heard about
“domestic violence situations,” but Philo did not provide any context or detail
27
It is not clear from in the trial record the identity of the grandfather, what sort of
abuse allegations had “com[e] out,” and if those abuse allegations related to mother
or father in any way.
11
regarding any purported domestic violence.28 According to Philo, family
reunification for mother and D.L.W.W. and J.A.W. had been the goal for a majority
of the case and mother had done everything that she had been asked to do to be
reunited with D.L.W.W. and J.A.W. Even when “new issues ha[d] evolved” during
the case, mother had been agreeable to working to make sure she was a better parent.
Mother had always been willing to complete whatever requirements had been asked
of her. When asked whether mother was a danger to D.L.W.W. and J.A.W., Philo
did not state that it would be dangerous or detrimental for D.L.W.W. or J.A.W. to
be returned to mother’s care. She only stated that she thought mother might
“struggle” due to her purported intellectual disability.29 Philo admitted that mother
had parented D.L.W.W. and J.A.W. for “quite some time” before they were removed
from mother’s care.
In regard to the current placement for D.L.W.W. and J.A.W., Philo stated that
it was not a positive home or a long-term placement, and she did not want D.L.W.W.
and J.A.W. to stay in their placement. D.L.W.W. and J.A.W. desperately wanted to
return to mother’s care, and mother wanted them returned to her care. D.L.W.W.
and J.A.W. were not happy in their placement. It was in D.L.W.W. and J.A.W.’s
28
Philo did not testify about any specific domestic violence allegation and did not
indicate that mother or father had engaged in domestic violence.
29
Again, Philo acknowledged that mother had never been diagnosed with an
intellectual impairment or intellectual disability, and no expert had ever reported
that mother had an intellectual problem.
12
best interest for mother to be given more time and for mother’s parental rights not
to be terminated.
Mother
Mother testified that she would like the children returned to her care, and she
asked that the trial court not terminate her parental rights to the children. Mother
stated that she loved the children.
Mother explained that she had completed the requirements that had been
asked of her, and she was capable of parenting the children. She had the financial
ability to care for the children and a place for the children to live. Mother intended
to continue participating in AA and working on her “12-Step Program” even after
the children were returned to her care. She agreed to comply with any requirements
that would be placed on her so that her children could be returned to her care. And
she was willing to work with A.M.M.’s foster family in order to be able to maintain
contact with A.M.M. if the child was not returned to mother’s care. If D.L.W.W.
and J.A.W. were returned to her care, mother was willing to participate in in-home
parenting classes.
Mother did acknowledge that in 2011 and 2014 she was convicted of the
offense of prostitution and she was sentenced to ten days’ confinement for each
offense. Mother stated that she had not had any “criminal law problems” since 2014.
13
As to allegations of domestic violence, mother stated that father had never
struck her, hit her, pushed her, or kicked her. Father had been “mean towards [her]”
in the presence of D.L.W.W. and J.A.W., but father had not verbally abused her in
the presence of D.L.W.W. and J.A.W. Father did not yell at mother and did not use
curse words in front of the children. He also did not call her names in front of the
children. Father sometimes used a harsh tone.
Finally, mother testified that she had not used marijuana since 2017 or 2018,
she had not used methamphetamine since 2017, and she did not use cocaine.
Father
Father testified that A.M.M. was his daughter. He described his relationship
with A.M.M. as “[a]wesome.” Father loved A.M.M. He requested that the trial
court not terminate his parental rights to the child. Father was willing to work out
an agreement where A.M.M. could remain with her foster family and he could have
visitation with A.M.M.
Father acknowledged that A.M.M. was thriving in her current placement with
her foster family. Father was willing to provide financial support to A.M.M.’s foster
family if his parental rights were not terminated but A.M.M. remained in the care of
her foster family.
Father acknowledged that, at the beginning of the termination case, he tested
positive for narcotics use and alcohol use. Father stated that at the time of trial, he
14
had been participating in AA for a year and he attended AA meetings once or twice
a week.30 Father also participated in NA. He had not tested positive for narcotics
use or alcohol use for more than a year. Father testified that he had last used cocaine
and methamphetamine at the end of 2018 and he had last used marijuana about a
year before trial. It had been a year since father had consumed alcohol. Father was
convicted of the offense of possession of a controlled substance, namely cocaine, in
September 2014, and his punishment was assessed at confinement for thirty days.
He had not had any “criminal law problem[s]” since 2014.
As to his FSP, father stated that he had completed it, and he had stayed in
contact with DFPS caseworker Deese.
Standard of Review
A parent’s right to “the companionship, care, custody, and management” of
her child is a constitutional interest “far more precious than any property right.”
Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted). The
United States Supreme Court has emphasized that “the interest of [a] parent[] in the
care, custody, and control of [her] child[] . . . 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
30
Father contradicted himself during his testimony and stated that he had been
participating in AA for a couple of months before trial.
15
natural parental right” is “essential,” “a basic civil right of man,” and “far more
precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
(internal quotations omitted). Consequently, “[w]e strictly construe involuntary
termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex.
2012).
Because termination of parental rights is “complete, final, irrevocable and
divests for all time that natural right . . . , the evidence in support of termination must
be clear and convincing before a court may involuntarily terminate a parent’s rights.”
Holick, 685 S.W.2d at 20. Clear and convincing evidence is “the measure or degree
of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.
§ 101.007; see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the
standard of proof is “clear and convincing evidence,” the Texas Supreme Court has
held that the traditional legal and factual standards of review are inadequate. In re
J.F.C., 96 S.W.3d at 264–68.
In conducting a legal-sufficiency review in a termination-of-parental-rights
case, we must determine whether the evidence, viewed in the light most favorable
to the finding, is such that the fact finder could reasonably have formed a firm belief
or conviction about the truth of the matter on which DFPS bore the burden of proof.
Id. at 266. In viewing the evidence in the light most favorable to the finding, we
16
“must assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could do so,” and we “should disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” In
re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). But this
does not mean we must disregard all evidence that does not support the finding. In
re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we must also be
mindful of any undisputed evidence contrary to the finding and consider that
evidence in our analysis. Id. If we determine that no reasonable trier of fact could
form a firm belief or conviction that the matter that must be proven is true, we must
hold the evidence to be legally insufficient and render judgment in favor of the
parent. Id.
In conducting a factual-sufficiency review in a termination-of-parental-rights
case, we must determine whether, considering the entire record, including evidence
both supporting and contradicting the finding, a fact finder reasonably could have
formed a firm conviction or belief about the truth of the matter on which DFPS bore
the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We should
consider whether the disputed evidence is such that a reasonable fact finder could
not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96
S.W.3d at 266. “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant
17
that a factfinder could not reasonably have formed a firm belief or conviction, then
the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (internal quotations omitted).
Termination of Parental Rights
In her first and third issues, mother argues that the trial court erred in
terminating her parental rights to A.M.M. because the evidence is legally and
factually insufficient to support the trial court’s findings that she engaged, or
knowingly placed A.M.M. with persons who engaged, in conduct that endangered
the child’s physical and emotional well-being and termination of her parental rights
was in the best interest of A.M.M. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E),
(b)(2).
In his first and third issues, father argues that the trial court erred in
terminating his parental rights to A.M.M. because the evidence is legally and
factually insufficient to support the trial court’s finding that he engaged, or
knowingly placed A.M.M. with persons who engaged, in conduct that endangered
the child’s physical and emotional well-being and termination of his parental rights
was in the best interest of A.M.M. See id.
In order to terminate the parent-child relationship, DFPS must establish, by
clear and convincing evidence, one or more of the acts or omissions enumerated in
Texas Family Code section 161.001(b)(1) and that termination of parental rights is
18
in the best interest of the child. See id. § 161.001(b). Both elements must be
established, and termination may not be based solely on the best interest of the child
as determined by the trier of fact. Id.; Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987). “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).
A. Endangering Conduct
In a portion of her first issue, mother argues that the evidence is legally
insufficient31 to support the trial court’s finding that she engaged, or knowingly
placed A.M.M. with persons who engaged, in conduct that endangered the child’s
physical and emotional well-being because a single act or omission did not constitute
a voluntary, deliberate, and conscious course of conduct by mother, mother’s
criminal history was remote, and although mother had substance-abuse issues, she
31
When a party presents multiple grounds for reversal, an appellate court should first
address those issues that would afford the party the greatest relief. See Bradleys’
Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999); In re A.A.H.,
Nos. 01-19-00612-CV, 01-19-00748-CV, 2020 WL 1056941, at *7 n.4 (Tex.
App.—Houston [1st Dist.] Mar. 5, 2020, no pet.) (mem. op.). Because legally
insufficient evidence requires a rendition of judgment in favor of the party raising
the challenge, we must address a legal-sufficiency challenge first. See In re A.A.H.,
2020 WL 1056941, at *7 n.4; In re L.N.C., 573 S.W.3d 309, 315 (Tex. App.—
Houston [14th Dist.] 2019, pet. denied).
19
was still participating in a “12-Step Program” and other services to address those
issues.
In a portion of his first issue, father argues that the evidence is legally
insufficient32 to support the trial court’s finding that he engaged, or knowingly
placed A.M.M. with persons who engaged, in conduct that endangered the child’s
physical and emotional well-being because there was no evidence of a voluntary,
deliberate, and conscious course of conduct by father, no narcotics-use or
alcohol-use testing results were admitted into evidence at trial, father only tested
positive for narcotics use at the beginning of the case, DFPS agreed that father had
addressed his issue related to alcohol abuse, and there was no actual evidence of
domestic violence between mother and father.
A trial court may terminate the parent-child relationship if it finds by clear
and convincing evidence that the parent has “engaged in conduct or knowingly
placed [a] child with persons who engaged in conduct which endanger[ed] the
physical or emotional well-being of the child” and termination is in the best interest
of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (b)(2). Within this context,
endangerment encompasses “more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment.” Boyd, 727 S.W.2d at
32
See Bradleys’ Elec., Inc., 995 S.W.2d at 677; In re A.A.H., 2020 WL 1056941, at
*7 n.4; In re L.N.C., 573 S.W.3d at 315.
20
533. Instead, “endanger” means to expose the child to loss or injury or to jeopardize
her emotional or physical health. Id. (internal quotations omitted); 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).
We must look at a parent’s conduct standing alone, including her actions or
omissions. In re J.W., 152 S.W.3d 200, 205 (Tex. App.—Dallas 2004, pet. denied).
It is not necessary to establish that a parent intended to endanger the child. See In
re M.C., 917 S.W.2d 268, 270 (Tex. 1996). But termination of parental rights
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 In re J.W., 152 S.W.3d at 205.
This Court has previously stated that illegal narcotics use and its effect on a
parent’s life and the ability to parent may constitute an endangering course of
conduct. See, e.g., In re A.A.M., 464 S.W.3d 421, 426–27 (Tex. App.—Houston [1st
Dist.] 2015, no pet.); see also In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)
(“[E]ndangering conduct may include the parent’s actions before the child’s birth,
while the parent had custody of older children, including evidence of drug usage.”).
And we have concluded that illegal narcotics use may support termination under
Texas Family Code section 161.001(b)(1)(E). See Walker, 312 S.W.3d at 617–18;
see also In re N.J.H., 575 S.W.3d 822, 832–33 (Tex. App.—Houston [1st Dist.]
21
2018, pet. denied) (“[A] parent’s decision to engage in illegal drug use during the
pendency of a termination suit, when the parent is at risk of losing a child, may
support a finding that the parent engaged in conduct that endangered the child’s
physical or emotional well-being.” (alteration in original) (internal quotations
omitted)); Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189,
195–96 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
Here, it is undisputed that mother and father used illegal narcotics at the
beginning of this case. Although narcotics-use testing results were not admitted into
evidence at trial,33 DFPS caseworker Deese testified that DFPS filed its petition on
August 2, 2018 seeking termination of the parental rights of mother and father in
part “due to substance abuse” because mother and father had tested positive for
marijuana use and cocaine use at some point. According to Deese, mother tested
positive for narcotics use by urinalysis on August 23, 2018.34 Father testified
positive for cocaine and benzodiazepine use in September 2018.
33
To the extent that the clerk’s record or the reporter’s record from a non-trial hearing
contains information regarding mother’s and father’s narcotics use, we may not
consider such information when determining whether the evidence is legally
sufficient to support the trial court’s order because such information was not
admitted as evidence at trial. See In re E.F., 591 S.W.3d at 142 n.4 (“The only
evidence that can support the trial court’s order is that evidence admitted at trial.”
(emphasis added)).
34
Deese contradicted herself during her testimony, stating at one point that mother
tested positive for cocaine use on May 1, 2019 by a hair-follicle test, and at another
point, that mother tested negative for narcotics use on May 1, 2019.
22
Mother testified that she last used marijuana in 2017 or 2018 and she last used
methamphetamine in 2017.35 Father testified that, at the beginning of the
termination case, he tested positive for narcotics use. Father last used cocaine and
methamphetamine at the end of 2018, and he last used marijuana about a year before
trial. Father admitted he had been convicted of the offense of possession of a
controlled substance, namely cocaine, in September 2014 and his punishment was
assessed at confinement for thirty days.
Viewing the evidence in the light most favorable to the trial court’s findings,
as we must when conducting a legal-sufficiency review, we conclude that the trial
court could have formed a firm belief or conviction that mother and father engaged,
or knowingly placed A.M.M. with persons who engaged, in conduct that endangered
35
In her brief, mother states that A.M.M. was removed from her care because both she
and A.M.M. tested positive for marijuana use at the time of A.M.M.’s birth on
November 29, 2017. But, in other portions of her brief, mother states that only she
tested positive for marijuana use at the time of A.M.M.’s birth. And, in another
portion of her brief, mother states that it was A.M.M. who tested positive for
marijuana use at birth, which resulted in her being removed from mother’s care. No
one presented any evidence at trial establishing whether mother or A.M.M. or both
tested positive for marijuana use at the time of A.M.M.’s birth. In fact, no evidence
about A.M.M.’s birth or the circumstances surrounding the birth was even admitted
at trial. See id. (“The only evidence that can support the trial court’s order is that
evidence admitted at trial.” (emphasis added)). We have discretion as to whether
to accept a statement made in a party’s brief as a judicial admission. See Wells
Fargo Bank, N.A. v. Smuck, 407 S.W.3d 830, 842 (Tex. App.—Houston [14th Dist.]
2013, pet. denied). And given that the statements in mother’s brief about marijuana
use are not sufficiently clear or unequivocal, we do not consider them to be judicial
admissions. See, e.g., Fayette Cty. v. Ryder Integrated Logistics, Inc., No.
04-16-00574-CV, 2017 WL 1244440, at *3 n.1 (Tex. App.—San Antonio Apr. 5,
2017, no pet.) (mem. op.).
23
the child’s physical and emotional well-being. See TEX. FAM. CODE ANN.
§ 161.001(b)(1)(E). We hold that the evidence is legally sufficient to support the
trial court’s findings that mother and father engaged, or knowingly placed A.M.M.
with persons who engaged, in conduct that endangered the child’s physical and
emotional well-being. See id.
We overrule this portion of mother’s first issue and this portion of father’s
first issue.
Having held that the evidence is legally sufficient to support the trial court’s
finding that mother and father engaged, or knowingly placed A.M.M. with persons
who engaged, in conduct that endangered the child’s physical and emotional
well-being, we need not address the portion of mother’s second issue in which she
asserts that the evidence is legally insufficient to support the trial court’s finding that
she failed to comply with the provisions of a court order that specifically established
the actions necessary for her to obtain the return of A.M.M. See id.
§ 161.001(b)(1)(O); In re A.V., 113 S.W.3d at 362 (only one predicate finding under
Texas Family Code section 161.001(b)(1) necessary to support judgment
terminating parental rights); see also TEX. R. APP. P. 47.1. We also need not address
the portion of father’s second issue in which he asserts that the evidence is legally
insufficient to support the trial court’s finding that he failed to comply with the
provisions of a court order that specifically established the actions necessary for him
24
to obtain the return of A.M.M. See TEX. FAM. CODE ANN. § 161.001(b)(1)(O); In re
A.V., 113 S.W.3d at 362; see also TEX. R. APP. P. 47.1.
Additionally, due to our disposition below,36 we need not address the portions
of mother’s first and second issues in which she asserts that the evidence is factually
insufficient to support the trial court’s findings that she engaged, or knowingly
placed A.M.M. with persons who engaged, in conduct that endangered the child’s
physical and emotional well-being and that she failed to comply with the provisions
of a court order that specifically established the actions necessary for her to obtain
the return A.M.M. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E), (O). We also
need not address the portions of father’s first and second issues in which he asserts
that the evidence is factually insufficient to support the trial court’s findings that he
engaged, or knowingly placed A.M.M. with persons who engaged, in conduct that
36
Because we reverse the portion of the trial court’s order terminating the parental
rights of mother and father to A.M.M. and remand the case to the trial court for a
new trial after concluding that the evidence is factually insufficient to support the
trial court’s best-interest findings, see infra, we do not run afoul of the Texas
Supreme Court’s decision in In re N.G., 577 S.W.3d 230 (Tex. 2019), by not
considering whether the evidence is factually insufficient to support the trial court’s
findings that mother and father engaged, or knowingly placed A.M.M. with persons
who engaged, in conduct that endangered the child’s physical and emotional
well-being. See In re D.T., Nos. 07-19-00071-CV, 07-19-00072-CV, 2019 WL
3210601, at *5 n.6 (Tex. App.—Amarillo July 16, 2019, no pet.) (mem. op.); see
also TEX. FAM. CODE ANN. § 161.001(1)(b)(E); In re N.G., 577 S.W.3d at 237, 239
(only when appellate court “affirms the termination” of parental rights under section
161.001(b)(1)(E) must it address both legal and factual sufficiency of evidence “to
support [a] section 161.001(b)(1)([E]) . . . finding[] as [a] ground[] for termination”
(emphasis added)).
25
endangered the child’s physical and emotional well-being and that he failed to
comply with the provisions of a court order that specifically established the actions
necessary for him to obtain the return A.M.M. See id. This is because, even were
we to sustain any of the factual-sufficiency challenges raised by mother and father
in their first and second issues, mother and father would not be granted any more
relief related to the termination of their parental rights to A.M.M. than we have
afforded them below. See In re A.A.H., Nos. 01-19-00612-CV, 01-19-00748-CV,
2020 WL 1056941, at *18 (Tex. App.—Houston [1st Dist.] Mar. 5, 2020, no pet.)
(mem. op.); see also TEX. R. APP. P. 47.1.
B. Best Interest of A.M.M.
In her third issue, mother argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental rights
was in the best interest of A.M.M. because DFPS had the burden to prove that
termination of mother’s parental rights was in the best interest of A.M.M., mother
completed her FSP and extra parenting classes, mother participated in
family-therapy sessions when it was added to her FSP, mother attended all hearings
and visits, mother’s interaction with A.M.M. was appropriate, mother had not
“relapse[d] during the pendency of the case,” mother was participating in her
“12-Step Program,” mother’s criminal history was remote, mother was financially
able to care for A.M.M., mother’s home was suitable for A.M.M., mother was
26
willing to continue participating in AA and attend additional parenting classes, and
mother did not pose a physical or emotional danger to A.M.M.
In his third issue, father argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of his parental rights
was in the best interest of A.M.M. because there was a bond between A.M.M. and
father, A.M.M.’s foster family was “willing to work out visitation and access
with . . . father” which “removed the necessity of terminat[ing] [father’s parental]
rights,” father had a previous role in parenting mother’s older children, D.L.W.W.
and J.A.W., which weighed against terminating his parental rights to A.M.M., little
evidence concerning the stability of father’s home was presented, and the evidence
at trial used to support the trial court’s best-interest finding was scant, vague, and
conclusory.
The best-interest analysis evaluates the best interest of the child. See In re
D.S., 333 S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.). It is presumed that
the prompt and permanent placement of the child in a safe environment is in her best
interest. See TEX. FAM. CODE ANN. § 263.307(a); In re D.S., 333 S.W.3d at 383.
There is also a strong presumption that the child’s best interest is served by
maintaining the parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). Thus, we strictly scrutinize termination
proceedings in favor of the parent. In re N.L.D., 412 S.W.3d 810, 822 (Tex. App.—
27
Texarkana 2013, no pet.). And because of the strong presumption in favor of
maintaining the parent-child relationship and the due process implications of
terminating a parent’s rights to her minor child without clear and convincing
evidence, “the best interest standard does not permit termination merely
because a child might be better off living elsewhere.” In re J.G.S., 574 S.W.3d 101,
121–22 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (internal quotations
omitted); see also In re W.C., 98 S.W.3d 753, 758 (Tex. App.—Fort Worth 2003, no
pet.). Termination of parental rights should not be used as a mechanism to merely
reallocate a child to better and more prosperous parents. In re J.G.S., 574 S.W.3d at
121–22; In re W.C., 98 S.W.3d at 758; see also In re E.N.C., 384 S.W.3d at 809; In
re C.R., 263 S.W.3d 368, 375 (Tex. App.—Dallas 2008, no pet.).
Moreover, termination is not warranted “without the most solid and
substantial reasons.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976) (internal
quotations omitted); see also In re N.L.D., 412 S.W.3d at 822. In
parental-termination proceedings, DFPS’s burden is not simply to prove that a parent
should not have custody of her child; DFPS must meet the heightened burden to
prove, by clear and convincing evidence, that the parent should no longer have any
relationship with her child whatsoever. See In re K.N.J., 583 S.W.3d 813, 827 (Tex.
App.—San Antonio 2019, no pet.); see also In re J.A.J., 243 S.W.3d 611, 616–17
(Tex. 2007) (distinguishing conservatorship from termination).
28
In determining whether the termination of mother’s and father’s parental
rights was in the best interest of A.M.M., we may consider several factors, including:
(1) the child’s desires; (2) the current and future physical and emotional needs of the
child; (3) the current and future emotional and physical danger to the child; (4) the
parental abilities of the parties seeking custody; (5) whether programs are available
to assist those parties; (6) plans for the child by the parties seeking custody; (7) the
stability of the proposed placement; (8) the parents’ acts or omissions that may
indicate that the parent-child relationship is not proper; and (9) any excuse for the
parents’ acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976); In re L.M., 104 S.W.3d at 647. We may also consider the statutory factors
set forth in Texas Family Code section 263.307. See TEX. FAM. CODE ANN.
§ 263.307; In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018); In re C.A.G., No.
01-11-01094-CV, 2012 WL 2922544, at *6 & n.4 (Tex. App.—Houston [1st Dist.]
June 12, 2012, no pet.) (mem. op.).
These factors are not exhaustive, and there is no requirement that DFPS prove
all factors as a condition precedent to the termination of parental rights. See In re
C.H., 89 S.W.3d at 27; see also In re C.L.C., 119 S.W.3d 382, 399 (Tex. App.—
Tyler 2003, no pet.) (“[T]he best interest of the child does not require proof of any
unique set of factors nor limit proof to any specific factors.”). The absence of
evidence about some of the factors does not preclude a fact finder from reasonably
29
forming a strong conviction or belief that termination is in the child’s best interest.
In re C.H., 89 S.W.3d at 27; In re J.G.S., 574 S.W.3d at 122.
On the other hand, a lack of evidence on one factor cannot be used as if it were
clear and convincing evidence supporting termination of parental rights. In re
E.N.C., 384 S.W.3d at 808; In re J.G.S., 574 S.W.3d at 122. In some cases,
undisputed evidence of only one factor may be sufficient to support a finding that
termination was in the child’s best interest, while in other cases, there could be “more
complex facts in which paltry evidence relevant to each consideration mentioned in
Holley would not suffice” to support termination. In re C.H., 89 S.W.3d at 27; see
also In re J.G.S., 574 S.W.3d at 122. The presence of scant evidence relevant to
each factor will generally not support a finding that termination of parental rights
was in the child’s best interest. In re R.H., No. 02-19-00273-CV, 2019 WL 6767804,
at *4 (Tex. App.—Fort Worth Dec. 12, 2019, pet. denied) (mem. op.); In re A.W.,
444 S.W.3d 690, 693 (Tex. App.—Dallas 2014, pet. denied).
1. A.M.M.’s Desires
When the parental rights of mother and father were terminated, A.M.M. was
two years old. Thus, A.M.M. was not able to directly express her desires. Generally,
when a child is too young to express her desires, this factor is considered neutral.
See In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
30
DFPS caseworker Deese testified that mother had been “actively participating
in th[e] case,” including attending visits with A.M.M. Deese described mother’s
visits with A.M.M. as “good” and stated that mother acted appropriately at visits.
Mother loved A.M.M., and A.M.M. loved her. Mother’s bond with A.M.M. was
“healthy,” and mother was “positive around” A.M.M. during their Zoom visitations.
See In re C.V.L., 591 S.W.3d 734, 754 (Tex. App.—Dallas 2019, pet. denied)
(evidence parent did not miss visits with child, parent loved child, parent and child
had bond, and parent worked hard to do what he needed to do to get child back
weighed against termination of parental rights).
As to father, Deese explained that DFPS did not have a problem with father
being appointed as a possessory conservator of A.M.M. According to Deese, father
and A.M.M. were bonded, and A.M.M. recognized father at their in-person visits.
Child Advocates volunteer Philo also testified that father and A.M.M. were bonded,
father loved A.M.M., and father was appropriate during his in-person visits with the
child. A.M.M.’s foster family was willing to allow father to remain in A.M.M.’s life
if acceptable terms could be reached. See id. (evidence parent did not miss visits
with child, parent loved child, parent and child had bond, and parent worked hard to
do what he needed to do to get child back weighed against termination of parental
rights).
31
Father testified that he loved A.M.M. and his relationship with her was
“[a]wesome.” He stated that he did not want his parental rights to A.M.M. to be
terminated, but he was willing to work out an agreement where A.M.M. could
remain with her foster family and he could have visitation with her. Father was also
willing to provide financial support to A.M.M.’s foster family if his rights were not
terminated and A.M.M. continued living in with her foster family.
A.M.M. had been in the same foster home since the termination case began in
August 2018. Deese testified, without detail, that A.M.M. was thriving in her
placement and that her foster home was “good.” Philo summarily stated that
A.M.M.’s foster home was stable and loving. No additional information about
A.M.M.’s foster placement was admitted into evidence at trial. See In re D.N., No.
12-13-00373-CV, 2014 WL 3538550, at *3–5 (Tex. App.—Tyler July 9, 2014, no
pet.) (mem. op.) (holding evidence insufficient to support termination of parental
rights and noting DFPS caseworker and children’s attorney ad litem did not provide
any facts to form basis of opinion); In re A.H., 414 S.W.3d 802, 807 (Tex. App.—
San Antonio 2013, no pet.) (holding evidence insufficient to support best-interest
finding where no evidence elicited about children’s current caregivers or
environment caregivers would provide children).
32
2. Current and Future Physical and Emotional Needs and
Current and Future Physical and Emotional Danger
a. Condition of Home
A child needs a safe and stable home. See TEX. FAM. CODE ANN. § 263.307(a)
(prompt and permanent placement of child in safe environment presumed to be in
child’s best interest); In re G.M.G., 444 S.W.3d 46, 60 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) (parent who lacks ability to provide child with safe and stable
home is unable to provide for child’s emotional and physical needs).
DFPS caseworker Deese testified that mother had her own home, which was
stable and suitable for A.M.M. Mother was financially able to support A.M.M., and
mother was participating in AA’s “12-Step Program.” Mother completed her
parenting classes and had participated in family-therapy sessions.
Mother testified that she was capable of parenting A.M.M., she had the
financial ability to care for A.M.M., and she had a place for A.M.M. to live. Mother
planned to continuing participating in AA and working on her “12-Step Program” if
A.M.M. was returned to her care. There is no evidence that domestic violence
occurred in mother’s home. According to mother, father never struck her, hit her,
pushed her, or kicked her. Father did not yell at mother in front of A.M.M. See In
re C.V.L., 591 S.W.3d at 754–55 (evidence parent’s home suitable for child to live
there, parent could financially support child, and parent had maintained sobriety and
continued attending NA meetings weighed against termination of parental rights);
33
see also Toliver v. Tex. Dep’t of Family & Protective Servs., 217 S.W.3d 85, 101
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (DFPS had burden to rebut
presumption that best interest of children was served by keeping custody with natural
parent).
As to father, Deese testified that he lived with his mother and he had been
employed “off and on with his job.” Deese did not know whether father had a job
at the time of trial, but she speculated that “he probably ha[d] obtained a new one.”
Deese summarily opined that father “need[ed] his own place.” Deese did not
consider father’s living arrangement with his mother to be stable because father was
not on the lease agreement. Yet, Deese noted that DFPS did not have a problem
with father being appointed as a possessory conservator of A.M.M.—meaning that
DFPS did not consider the purported lack of stability in father’s home to be a reason
to terminate father’s parental rights. According to Deese, father was participating in
a “12-Step Program” and NA. See In re C.V.L., 591 S.W.3d at 754–59 (evidence
parent had maintained sobriety and continued attending NA meetings weighed
against termination of parental rights); see also Toliver, 217 S.W.3d at 101 (DFPS
had burden to rebut presumption that best interest of children was served by keeping
custody with natural parent). Father also testified he was participating in AA and
NA.
34
As to A.M.M.’s current placement, it is undisputed that A.M.M. had been in
the same foster home since the termination case began in August 2018. Child
Advocates volunteer Philo testified that it was an adoptive home, but A.M.M.’s
foster family would still be willing to raise A.M.M. even if she had contact with
mother and father. Deese testified, without detail, that A.M.M. was thriving in her
placement and that her foster home was “good.” Philo, without explanation,
described A.M.M.’s foster home as stable and loving. See In re D.N., 2014 WL
3538550, at *3–5 (holding evidence insufficient to support termination of parental
rights and noting DFPS caseworker and children’s attorney ad litem did not provide
any facts to form basis of opinion); In re A.H., 414 S.W.3d at 807 (holding evidence
insufficient to support best-interest finding where no evidence elicited about
children’s current caregivers or environment caregivers would provide children).
Conclusory opinion testimony, even if uncontradicted, does not amount to more than
a scintilla of evidence; it is no evidence at all. See In re A.H., 414 S.W.3d at 807;
see also City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009) (opinion
is conclusory “if no basis for the opinion is offered[] or the basis offered provides
no support”); Arkoma Basin Expl. Co. v. FMF Assocs. 1990–A, Ltd., 249 S.W.3d
380, 389 (Tex. 2008) (witness cannot “simply state a conclusion without any
explanation” or ask trier of fact to just “take [her] word for it” (internal quotations
omitted)).
35
b. A.M.M.’s Needs
DFPS caseworker Deese testified that A.M.M. did not have special needs. See
In re C.V.L., 591 S.W.3d at 754–55 (holding evidence factually insufficient to
support finding termination of parental rights in best interest of child where no
evidence in record that child had any needs aside from basics such as housing and
sustenance); In re D.D.M., No. 01-18-01033-CV, 2019 WL 2939259, at *5, *8 (Tex.
App.—Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.) (holding evidence
factually insufficient to support finding termination of parental rights in best interest
of children where no evidence children had any special physical needs). Although
Child Advocates volunteer Philo stated that A.M.M. was vulnerable due to her age,
no detail was provided at trial as to what Philo meant by such a statement, and there
was no evidence that A.M.M. was vulnerable in any particular way. Further, there
is nothing in the trial record to establish that A.M.M.’s physical and emotional needs
differ in any respect to those of other children her age. See In re E.N.C., 384 S.W.3d
at 808 (no evidence presented indicated that children’s needs differ from other
children or would go unmet if children were returned to parent); In re E.W., 494
S.W.3d 287, 300–01 (Tex. App.—Texarkana 2015, no pet.). Likewise, the record
does not show that either mother or father failed to meet A.M.M.’s physical and
emotional needs while she was previously in their care. See In re W.C., 98 S.W.3d
36at 758 (no evidence presented at trial showed parent had failed to meet children’s
needs in past).
According to Deese, Mother completed her required parenting classes, had
stable housing, completed her psychosocial evaluation, followed the
recommendations from the evaluation, and completed individual therapy. Mother
acted appropriately during her visits with A.M.M., and mother’s visits with A.M.M.
were “good.” Philo admitted that mother had parented her older children, D.L.W.W.
and J.A.W., for “quite some time” before they were removed from mother’s care.
Mother testified that she was capable of parenting A.M.M. and she had the
financial ability to care for the child. Mother had a stable place for A.M.M. to live,
and she agreed to comply with any additional requirements that would be placed on
her so that A.M.M. could be returned to her care, including participating in in-home
parenting classes.
Although Deese and Philo expressed concern during their testimony about
mother’s purported and unspecified “intellectual disabilities,” which they thought
could impact mother’s ability to parent A.M.M., both witnesses acknowledged that
mother had never been diagnosed with any intellectual disabilities and Philo
conceded that no expert had ever reported that mother had an intellectual problem.
See In re D.N., 2014 WL 3538550, at *3–5 (holding evidence insufficient to support
termination of parental rights and noting DFPS caseworker and children’s attorney
37
ad litem did not provide any facts to form basis of opinion). Despite the fact that
Deese testified that DFPS wanted “a recommendation from a professional person
stating that . . . it[] [was] okay to return” A.M.M. to mother’s care, Deese did not
testify that DFPS had actually ever sought out “a recommendation from a
professional person” about returning A.M.M. to mother’s care. Neither Deese nor
Philo were even able to articulate what “intellectual disabilities” or intellectual
impairment they believed that mother suffered from, and they did not provide any
detail in their testimony. Deese only confusingly testified that mother “thank[ed]
God for everything” and “for her distress, it’s kind of hard.” It is unclear from the
record how this testimony relates to a purported intellectual disability. DFPS
presented no expert testimony at trial concerning mother’s alleged intellectual
disabilities or intellectual impairment.37
As to father, Deese testified that he had completed “everything” on his FSP.
He lived with his mother, and he had been employed “off and on with his job” during
37
To the extent that mother’s brief states that mother is “intellectually challenged,” no
evidence admitted at trial showed that she was “intellectually challenged.” Mother
also did not admit or concede at trial that she was “intellectually challenged.” See
In re E.F., 591 S.W.3d at 142 n.4 (“The only evidence that can support the trial
court’s order is that evidence admitted at trial.” (emphasis added)). Further,
mother’s brief does not state that her purported “intellectual[] challenge[]” affected
her ability to parent A.M.M., and her brief provides no detail or diagnosis
concerning any unspecified “intellectual[] challenge[].” We do not consider the
statements in mother’s brief to be judicial admissions as to her intellectual
capabilities. See Smuck, 407 S.W.3d at 842; see also Fayette Cty., 2017 WL
1244440, at *3 n.1.
38
the pendency of the case. Although Deese wanted father to get his “own place,” she
also stated that DFPS did not have a problem with father maintaining his parental
rights to A.M.M. and with him being appointed as a possessory conservator of
A.M.M.38 According to Deese, father was participating in a “12-Step Program” and
in NA. Father attended in-person visits and Zoom visits with A.M.M. During his
Zoom visits, father talked to A.M.M. Philo stated that father acted appropriately in
his in-person visits with A.M.M. and A.M.M.’s foster family was willing to allow
father to remain in A.M.M.’s life if acceptable terms could be reached.
Deese also noted that father was bonded to mother’s two older children,
D.L.W.W. and J.A.W., and she stated that father was “pretty good” with them and
they had a bond with father.
Father testified that he had an “[a]wesome” relationship with A.M.M., and he
was willing to work out a visitation agreement with A.M.M.’s foster family if his
parental rights to the child were not terminated. Father stated that he would provide
financial support to A.M.M.’s foster family. According to father, he participated in
AA and NA, and he had completed the requirements of his FSP.
Although Deese testified that A.M.M. was thriving in her placement, no
evidence was presented at trial concerning the foster family’s ability to meet
38
Deese testified that father sometimes made unspecified “inappropriate comments”
during his visits with A.M.M., but no detail was provided by Deese as to the content
of father’s comments or how they were inappropriate.
39
A.M.M.’s current and future needs. See In re D.N., 2014 WL 3538550, at *3–5
(holding evidence insufficient to support termination of parental rights and noting
DFPS caseworker and children’s attorney ad litem did not provide any facts to form
basis of opinion); In re A.H., 414 S.W.3d at 807 (conclusory testimony by
caseworker, even if uncontradicted, not sufficient to establish termination of parental
rights in children’s best interest); see also Pollock, 284 S.W.3d at 818; Arkoma
Basin, 249 S.W.3d at 389. There was also no evidence presented that addressed
A.M.M.’s precise physical and emotional condition at the time of trial. See In re
D.T., Nos. 07-19-00071-CV, 07-19-00072-CV, 2019 WL 3210601, at *6–9 (Tex.
App.—Amarillo July 16, 2019, no pet.) (mem. op.) (holding evidence factually
insufficient to support finding termination of parental rights in best interest of
children where “[n]o caregiver testified” and “no evidence otherwise addressed the
children’s physical and emotional condition at the time of [the] final hearing”); see
also In re E.N.C., 384 S.W.3d at 808–10 (“A lack of evidence does not constitute
clear and convincing evidence.”).
c. Domestic Violence
The record does not contain any evidence that mother or father ever acted
aggressively or violently toward A.M.M. or toward mother’s older children,
D.L.W.W. and J.A.W. And there is no evidence that mother or father ever abused
D.L.W.W., J.A.W., or A.M.M. See In re E.N.C., 384 S.W.3d at 808–10 (“A lack of
40
evidence does not constitute clear and convincing evidence.”); In re J.C., No.
12-19-00102-CV, 2019 WL 3940803, at *4–5 (Tex. App.—Tyler Aug. 21, 2019, no
pet.) (mem. op.); see also In re E.C.A., No. 01-17-00623-CV, 2017 WL 6759198, at
*13 (Tex. App.—Houston [1st Dist.] Dec. 28, 2017, pet. denied) (mem. op.) (noting
children had not been abused by parent); In re J.P., No. 02-10-00448-CV, 2012 WL
579481, at *9 (Tex. App.—Fort Worth Feb. 23, 2012, no pet.) (mem. op.) (holding
evidence factually insufficient to support finding termination of parental rights in
child’s best interest where grounds for terminating parent’s rights did not involve
allegations of physical or sexual abuse of child by parent).
Notably, DFPS did not have a problem with father being appointed as a
possessory conservator of A.M.M.—indicating that DFPS did not feel that father
posed enough of a danger to A.M.M. that would require the termination of his
parental rights. Similarly, Child Advocates volunteer Philo testified that mother’s
parental rights to D.L.W.W. and J.A.W. should not be terminated, and Philo did not
feel that returning D.L.W.W. and J.A.W. to mother’s care would be dangerous or
detrimental to those children. This would seem to indicate that Child Advocates did
not feel that mother posed a danger to her older children that would require the
termination of her parental rights.
Although we recognize that Philo testified that D.L.W.W. and J.A.W.’s
therapist had heard about “domestic violence situations,” Philo did not provide any
41
context or detail. And no evidence at trial stated that the purported domestic violence
had occurred in the home of mother or father. There is no real indication in the trial
record about what, if any, sort of domestic-violence allegations had “com[e] out”
during the case.
DFPS caseworker Deese expressed concern that mother and father had two
incidents in which they disagreed in front of the children during visits with them,
but she stated that there were no physical altercations between mother and father.39
Deese described it as “a verbal back and forth,” and she stated that it was not
unexpected that mother and father would bicker during a stressful situation.
Mother testified that father had never struck her, hit her, pushed her, or kicked
her. Father also had not verbally abused mother, and he did not yell at her. He did
not use curse words in front of the children, and he did not call mother names in
front of the children. There is no evidence in the record of domestic violence being
perpetrated by mother or father or in their homes.
d. Narcotics Use
DFPS caseworker Deese testified that DFPS filed its petition, in August 2018,
seeking termination of the parental rights of mother and father, in part, “due to
substance abuse.” Deese, without detail or timeframe, stated that mother and father
39
It is unclear from the record whether all three children attended visits with mother
and father together or whether mother’s and father’s visits with A.M.M. were
separate from their visits with D.L.W.W. and J.A.W.
42
“kept testing positive” for marijuana and cocaine use, but it is unclear when the
positive-testing results occurred. Narcotics-use testing results for mother or father
were not admitted into evidence at trial.
Deese also testified that mother and father tested negative for narcotics use on
November 20, 201940 and in September 2019. Father tested negative for narcotics
use on July 10, 2019. And Deese stated that mother and father tested negative for
narcotics use on May 1, 2019.41 When asked whether mother and father had tested
negative for narcotics use for “multiple months,” Deese responded, “That is correct.”
Deese stated that mother had not tested positive for narcotics use by urinalysis since
August 23, 2018. Deese also confirmed that father had tested negative for alcohol
use “over the last year and a half, almost two years” before trial.42 Father last tested
positive for narcotics use in September 2018, right after the termination case began.43
40
November 20, 2019 was the last time that mother and father were asked to submit
to narcotics-use testing.
41
Deese contradicted herself during her testimony, stating that mother last tested
positive for cocaine use on May 1, 2019 by a hair-follicle test. Even if mother had
tested positive for cocaine use on May 1, 2019, this would have occurred about
thirteen months before her parental rights to A.M.M. were terminated.
42
Deese contradicted herself during her testimony and stated that father last tested
positive for alcohol use on July 10, 2019. Child Advocates volunteer Philo testified
that the last time father tested positive for alcohol use was in July 2019. This would
have occurred about a year before father’s parental rights to A.M.M. were
terminated.
43
Deese stated that father tested positive for cocaine, benzodiazepine, and alcohol use
in September 2018.
43
Deese acknowledged that mother and father had sponsors and were
participating in “12-Step Program[s].” According to Deese, mother participated in
AA and father participated in NA. Deese noted that there was no requirement that
mother complete her “12-Step Program” before A.M.M. could be returned to her
care.
Mother acknowledged that she had used narcotics in the past, but she stated
that she had not used marijuana since 2017 or 2018 and had not used
methamphetamine since 2017. Mother testified that she planned to continue
participating in AA and working on her “12-Step Program” even if A.M.M. was
returned to her care.
Father acknowledged that he tested positive for narcotics use and alcohol use
at the beginning of the termination case, but he stated that he had been participating
in AA for a year and he attended AA meetings once or twice a week.44 Father also
participated in NA. At the time of trial, father had not tested positive for narcotics
use or alcohol use for more than a year. Father testified that he had last used cocaine
and methamphetamine at the end of 2018 and he had last used marijuana about a
year before trial. It had been a year since father had consumed alcohol.
44
During another portion of his testimony, father stated that he had been participating
in AA for a couple of months.
44
Father admitted that he had been convicted of the offense of possession of a
controlled substance, namely cocaine, in September 2014 and his punishment was
assessed at confinement for thirty days. However, he had not had any “criminal law
problem[s]” since 2014.
Narcotics use by a parent is not desirable. See In re C.V.L., 591 S.W.3d at
756 (agreeing parent’s narcotics use constituted adverse factor to be considered in
best-interest analysis); see also In re J.N., 301 S.W.3d 429, 433–35 (Tex. App.—
Amarillo 2009, pet. denied) (although parent tested positive for narcotics use,
holding evidence factually insufficient to support trial court’s finding that
termination of parental rights in best interest of child). But at the time that the trial
court terminated their parental rights, mother and father had not tested positive for
narcotics use or alcohol use for a significant amount of time, and they had been
actively engaged in programs to help with their substance-abuse issues. See In re
C.V.L., 591 S.W.3d at 754–59 (holding evidence factually insufficient to support
finding termination of parental rights in child’s best interest where parent had
become sober and maintained sobriety).
Further, despite being aware of mother’s and father’s history with substance
abuse, DFPS did not have a problem with father being named as A.M.M.’s
possessory conservator—indicating that it did not believe that father’s
substance-abuse issues required termination of his parental rights. And Child
45
Advocates volunteer Philo testified that mother’s parental rights to D.L.W.W. and
J.A.W. should not be terminated—indicating that Child Advocates did not believe
that mother’s substance-abuse issues required termination of her parental rights. See
In re C.V.L., 591 S.W.3d at 754–59 (refusing to hold, solely based on evidence of
parent’s narcotics use, evidence was sufficient to support termination of parental
rights); In re E.C.A., 2017 WL 6759198, at *9–13 (holding evidence factually
insufficient to support finding termination of parental rights in children’s best
interest, although “[m]other was a synthetic marijuana user[,] . . . left the blunts from
her drug use within reach of the children[, and] . . . tested positive for cocaine on the
same day that the [FSP] was approved by the trial court” and while she was
pregnant); In re J.P., 2012 WL 579481, at *8–9 (holding evidence factually
insufficient to support finding termination of parental rights in best interest of child
even though parent “had been abusing drugs for years and had used crack, cocaine,
and marijuana during the month prior to trial”); Turner v. Lutz, 685 S.W.2d 356,
360–61 (Tex. App.—Austin 1984, no writ) (evidence of parent’s “alcohol problem”
did not include any evidence showing emotional or physical danger to children).
e. Criminal History
Mother acknowledged that in 2011 and 2014 she was convicted of the offense
of prostitution, and she was sentenced to ten days’ confinement for each offense.
Mother stated that she had not had any “criminal law problems” since 2014. Father
46
acknowledged that he was convicted of the offense of possession of a controlled
substance, namely cocaine, in September 2014, and his punishment was assessed at
confinement for thirty days. He had not had any “criminal law problem[s]” since
2014.
The record does not show that mother and father have an extensive history of
criminal convictions or lengthy incarcerations, and no evidence was presented at
trial explaining how mother’s two criminal convictions and father’s one criminal
conviction, the last of which occurred about three years before A.M.M.’s birth and
about five years before their parental rights were terminated, posed a danger to
A.M.M. Cf. In re J.B., No. 02-18-00034-CV, 2018 WL 3289612, at *4–7 (Tex.
App.—Texarkana July 5, 2018, no pet.) (mem. op.) (parent’s criminal history
“showed a long pattern of unlawful, dangerous behavior that resulted in his repeated
incarceration and bore on whether the factfinder could trust [parent] to responsibly
and capably raise [child] to adulthood”); In re Z.L.W., No. 01-12-00736-CV, 2013
WL 396270, at *5 (Tex. App.—Houston [1st Dist.] Jan. 31, 2013, no pet.) (mem.
op.) (parent’s pattern of committing criminal offenses constituted evidence of
current and future danger to child).
47
3. Parental Abilities, Plans for A.M.M., Stability of Proposed
Placement, and Availability of Assistance
a. Mother
DFPS caseworker Deese testified that mother engaged in the services required
by her FSP and she had completed “everything” in her FSP. See In re N.J.H., 575
S.W.3d at 835 (whether parent complied with FSP proper consideration in
best-interest analysis and parent’s compliance with FSP weighed in parent’s favor
and against termination); cf. In re A.L.W., No. 01-14-00805-CV, 2015 WL 4262754,
at *12 (Tex. App.—Houston [1st Dist.] July 14, 2015, no pet.) (mem. op.) (fact
finder could infer from parent’s failure to take initiative to complete services
required to regain possession of her children that parent did not have ability to
motivate herself to seek out available resources needed now or in future). Mother
completed her required parenting classes, had stable housing, completed her
psychosocial evaluation, followed the recommendations from her evaluation, and
completed individual therapy. When mother was asked to participate in
family-therapy sessions later on in the case, she did so.45 Mother had her own home,
which Deese stated was suitable for A.M.M., and mother received income.
According to Deese, mother had been “actively participating in th[e] case.” She had
45
Mother participated in family-therapy sessions with D.L.W.W. and J.A.W. It is
unclear from the trial record whether mother was ever asked to participate in
family-therapy sessions with A.M.M or whether A.M.M. participated in
family-therapy sessions.
48
attended court hearings and visits with A.M.M. Deese noted that mother was
participating in a “12-Step Program” and AA. Mother had a sponsor.
Deese also testified that mother loved A.M.M. and A.M.M. loved mother.
Mother’s bond with A.M.M. was “healthy” and mother was “positive around”
A.M.M. during their Zoom visitations. Mother’s visits with A.M.M. were “good.”
Deese noted that mother was sweet and kind to her older children, D.L.W.W. and
J.A.W., and those children wanted to be returned to mother’s care.46 Deese had
never seen mother hurt A.M.M. or “say something negative.”
Child Advocates volunteer Philo testified that mother was always willing to
complete whatever requirements that had been asked of her, and even when “new
issues ha[d] evolved” during the case, mother had been agreeable to working to make
sure that she was a better parent.
Mother testified that she loved A.M.M. and she did not want her parental
rights to be terminated. She had completed the requirements that had been asked of
her, and she was capable of parenting A.M.M.47 Mother had the financial ability to
46
Child Advocates volunteer Philo did not believe that mother’s parental rights to
D.L.W.W. and J.A.W. should be terminated.
47
As previously noted, Deese and Philo expressed concern about mother’s purported
and unspecified “intellectual disabilities,” which they thought could impact
mother’s ability to parent A.M.M. Again, however, both witnesses acknowledged
that mother had never been diagnosed with any intellectual disabilities. See In re
D.N., No. 12-13-00373-CV, 2014 WL 3538550, at *3–5 (Tex. App.—Tyler July 9,
2014, no pet.) (mem. op.) (holding evidence insufficient to support termination of
parental rights and noting DFPS caseworker and children’s attorney ad litem did not
49
care for A.M.M. and a place for A.M.M. to live. Mother planned to continue
participating in AA and working on her “12-Step Program.” Mother agreed to
comply with any requirements that were placed on her so that A.M.M. could be
returned to her care. Mother was also willing to work with A.M.M.’s foster family
in order to be able to maintain contact with A.M.M. if the child was not returned to
mother’s care, but mother’s parental rights were not terminated.
b. Father
DFPS caseworker Deese testified that father engaged in the services required
by his FSP and he had completed “everything” in his FSP. See In re N.J.H., 575
S.W.3d at 835 (whether parent complied with FSP proper consideration in
best-interest analysis and parent’s compliance with FSP weighed in parent’s favor
and against termination); cf. In re A.L.W., 2015 WL 4262754, at *12. Father also
participated in family-therapy sessions. Although, in Deese’s opinion, father’s
living arrangement with his mother was not stable, Deese also testified that DFPS
did not have a problem with father maintaining his parental rights to A.M.M. and
provide any facts to form basis of opinion). Further, neither Deese nor Philo were
even able to articulate what “intellectual disabilities” or intellectual impairment they
believed that mother suffered from, much less how those purported disabilities
might affect mother’s ability to care for A.M.M. Deese only confusingly testified
that mother “thank[ed] God for everything” and “for her distress, it’s kind of hard.”
It is unclear from the record how this testimony relates to a purported intellectual
disability. DFPS presented no expert testimony at trial concerning mother’s
purported intellectual disabilities or intellectual impairment.
50
being appointed as a possessory conservator of A.M.M.—indicating that DFPS did
believe that father’s living arrangement required his parental rights to A.MM. to be
terminated. Deese recognized that father was participating in a “12-Step Program,”
with a sponsor, and in NA. Deese did testify that sometimes, during his visits with
A.M.M., father made unspecified “inappropriate comments,” but such testimony
was not expanded upon and additional evidence was not presented at trial. Notably
though, whatever the unspecified “inappropriate comments” consisted of did not
affect DFPS’s opinion that father could still be granted possessory conservatorship
of A.M.M.
Deese also testified that father was “pretty good” with mother’s older
children, D.L.W.W. and J.A.W., and they were bonded with him, even though he
was not their biological father. Child Advocates volunteer Philo testified that
father’s visits with A.M.M. were appropriate and they were also bonded.
Significantly, Philo acknowledged that A.M.M.’s foster family was willing to allow
father to remain in A.M.M.’s life.
Father testified that his relationship with A.M.M. was “[a]wesome” and he
loved A.M.M. Father explained that he had not tested positive for narcotics use or
alcohol use for more than a year before trial and he participated in AA, NA, and a
“12-Step Program.” And he completed his FSP. See In re N.J.H., 575 S.W.3d at
835; cf. In re A.L.W., 2015 WL 4262754, at *12. Father was willing to work out an
51
agreement where A.M.M. could remain with her foster family and he could have
visitation with the child.
c. A.M.M.’s Foster Placement
As previously noted, the record contains no evidence of the condition of
A.M.M.’s current foster placement. There is also no evidence regarding the parental
abilities of the A.M.M.’s foster parents or the environment that they have provided
for A.M.M. See Horvatich v. Tex. Dep’t of Protective & Regulatory Servs., 78
S.W.3d 594, 601–04 (Tex. App.—Austin 2002, no pet.) (holding evidence
insufficient to support finding termination in best interest of children where record
not developed concerning current circumstances of children); see also In re E.N.C.,
384 S.W.3d at 808.
The only information in the record about A.M.M.’s current foster placement
is DFPS caseworker Deese’s conclusory opinions that the foster home was “good”
and safe and that A.M.M. was thriving. Child Advocates volunteer, Philo, similarly
testified, without detail, that A.M.M.’s foster placement was stable and loving. See
In re D.N., 2014 WL 3538550, at *3–5 (holding evidence insufficient to support
termination of parental rights and noting DFPS caseworker and children’s attorney
ad litem did not provide any facts to form basis of opinion); In re A.H., 414 S.W.3d
at 807 (holding evidence insufficient to support best-interest finding where no
52
evidence elicited about children’s current caregivers or environment caregivers
would provide children).
Notably, Deese acknowledged that A.M.M.’s foster family was willing to
raise her even if A.M.M. still had contact with mother and father. And Philo testified
that A.M.M.’s foster family was willing to allow father to remain in A.M.M.’s life
if acceptable terms could be reached.
DFPS must support its allegations against a parent, including its allegation
that termination of parental rights was in the best interest of a child, by clear and
convincing evidence; conjecture or a preponderance of evidence is not enough.
See In re E.N.C., 384 S.W.3d at 808–10; see also In re R.H., 2019 WL 6767804, at
*4; In re A.W., 444 S.W.3d at 693 (presence of scant evidence relevant to each factor
will generally not support finding that termination of parental rights is in child’s best
interest); Toliver, 217 S.W.3d at 101 (DFPS had burden to rebut presumption that
best interest of children was served by keeping custody with natural parent). This is
a high evidentiary burden that DFPS must meet, especially considering the
presumption that the child’s best interest is served by maintaining the parent-child
relationship.48 In re E.C.A., 2017 WL 6759198, at *13; In re R.W., No.
48
We note that during her testimony, DFPS caseworker Deese stated that mother’s
parental rights should be terminated simply because DFPS had a lot of
permanent-managing conservatorship cases which “get stagnant.” It is imperative
to remember that “[a]ctions which break the ties between a parent and a child can
never be justified without the most solid and substantial reasons,” “[p]articularly in
53
01-11-00023-CV, 2011 WL 2436541, at *12 (Tex. App.—Houston [1st Dist.] June
16, 2011, no pet.) (mem. op.).
Although we recognize that the trial court and the parties in this proceeding
had many hearings before the date of trial, we emphasize that none of the previous
hearings constitute evidence that can support the trial court’s order terminating the
parental rights of mother and father to A.M.M. Similarly, the documents contained
in the clerk’s record, of which the trial court did not take judicial notice, cannot be
used to support the trial court’s termination of mother’s and father’s parental rights
to A.M.M. The only evidence that can support the trial court’s order is the evidence
admitted at trial.49 See In re E.F., 591 S.W.3d 138, 142 n.4 (Tex. App.—San
Antonio 2019, no pet.).
We are cognizant of the extraordinary burdens placed on all participants in a
termination-of-parental-rights case, but given the constitutional rights of the parents
involved in such a proceeding, the interests of the child involved, and the effect that
an action which permanently sunders those ties.” Wiley v. Spratlan, 543 S.W.2d
349, 352 (Tex. 1976) (internal quotations omitted). As we have explained above,
“[t]he natural right which exists between [a] parent[] and [her] child[] is one of
constitutional dimensions,” and Texas courts have “always recognized the strong
presumption that the best interest of a [child] is usually served by keeping custody
in the natural parent[].” Id. Factors to be considered in determining whether
termination of parental rights is in the best interest of a child do not include the
busyness of DFPS’s caseload.
49
The reporter’s record from trial in this case is less than 100 pages. No exhibits were
admitted into evidence during trial. Cf. In re E.F., 591 S.W.3d at 142 n.4.
54
placement of the child will have on numerous lives, it is imperative that the parties
completely develop the evidence at trial. See id. The quality and quantity of
evidence required to make such a momentous decision should be the same whether
the parties have sought to have the matter decided by a jury or by the court. See
TEX. CONST. art. I, § 15. There is a reason the law sets a high evidentiary bar for the
termination of parental rights. See Santosky, 455 U.S. at 753–54 (“The fundamental
liberty interest of natural parents in the care, custody, and management of their child
does not evaporate simply because they have not been model parents or have lost
temporary custody of their child to the State. . . . If anything, persons faced with
forced dissolution of their parental rights have a more critical need for procedural
protections . . . .”).
Here, viewing the evidence in a neutral light, we conclude that a reasonable
fact finder could not have formed a firm belief or conviction that termination of the
parental rights of mother and father was in the best interest of A.M.M. See TEX.
FAM. CODE ANN. § 161.001(b)(2). Accordingly, we hold that the evidence is
factually insufficient to support the trial court’s findings that termination of the
parental rights of mother and father was in the best interest of A.M.M.50 See id.
50
Due to the evidence of narcotics use by mother and father and our prior case law,
viewing the evidence in the light most favorable to the trial court’s findings, as we
must when conducting a legal-sufficiency review, we conclude that the trial court
could have formed a firm belief or conviction that termination of the parental rights
of mother and father was in the best interest of A.M.M. See TEX. FAM. CODE ANN.
55
We sustain a portion of mother’s third issue and a portion of father’s third
issue.
Sole Managing Conservatorship
In her fourth issue, mother argues that the trial court erred in appointing DFPS
as the sole managing conservator of the children because D.L.W.W. and J.A.W.
wanted to live with mother, mother had completed her FSP, mother addressed her
substance-abuse issues and continued to address them, mother was willing to
complete extra services, and mother had successfully raised D.L.W.W. and J.A.W.
prior to their removal from her care.
We review conservatorship decisions for an abuse of discretion. In re J.A.J.,
243 S.W.3d at 616; In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—Houston [1st Dist.]
2017, pet. denied). A trial court abuses its discretion if its decision is arbitrary and
unreasonable. In re J.A.J., 243 S.W.3d at 616; In re J.J.G., 540 S.W.3d at 55. Thus,
in reviewing a trial court’s conservatorship decision for an abuse of discretion, we
examine whether the court acted without reference to any guiding rules or principles.
Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); see also In re J.J.G., 540 S.W.3d
§ 161.001(b)(2). Accordingly, we hold that the evidence is legally sufficient to
support the trial court’s findings that termination of the parental rights of mother
and father was in the best interest of A.M.M. See id.; see also In re A.A.H., 2020
WL 1056941, at *7 n.4 (because legally insufficient evidence requires rendition of
judgment in favor of party raising challenge, we must address it); In re L.N.C., 573
S.W.3d at 315.
56
at 55 (“To determine whether a trial court abused its discretion, the appellate court
must decide whether the court acted without reference to any guiding rules or
principles, that is, whether its decision was arbitrary or unreasonable.”). A trial court
does not abuse its discretion when it bases its decision on conflicting evidence or so
long as some evidence of substantive and probative character supports its decision.
In re J.J.G., 540 S.W.3d at 55.
The primary consideration in determining issues of conservatorship is always
the child’s best interest. See TEX. FAM. CODE ANN. § 153.002. “A managing
conservator must be a parent, a competent adult, [DFPS], or a licensed child-placing
agency.” See id. § 153.005(b); see also In re J.A.J., 243 S.W.3d at 614. Texas
Family Code section 153.131 creates a rebuttable presumption that the appointment
of a parent as managing conservator is in the best interest of the child unless the trial
court finds that the appointment of the parent “would not be in the best interest of
the child because the appointment would significantly impair the child’s physical
health or emotional development.” See TEX. FAM. CODE ANN. § 153.131(a)–(b).
The trial court may appoint DFPS as the managing conservator of a child
without termination of parental rights if it finds by a preponderance of evidence that:
(1) appointment of a parent as managing conservator would not be
in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional
development; and
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(2) it would not be in the best interest of the child to appoint a
relative of the child or another person as managing conservator.
Id. § 263.404(a); see also id. § 161.205 (providing that, if trial court does not order
termination of parental rights, court shall either “deny the petition” or “render any
order in the best interest of the child”); In re C.L.J.S., No. 01-18-00512-CV, 2018
WL 6219615, at *3–4 (Tex. App.—Houston [1st Dist.] Nov. 29, 2018, no pet.)
(mem. op.); In re J.J.G., 540 S.W.3d at 57 (Texas Family Code section 263.404
governs trial court’s appointment of DFPS as child’s managing conservator without
termination of parental rights). In making the determination, the trial court must
consider the following factors: (1) that the child will reach eighteen years old in not
less than three years; (2) that the child is twelve years old or older and has expressed
a strong desire against termination of parental rights or has continuously expressed
a strong desire against being adopted; and (3) the needs and desires of the child.
TEX. FAM. CODE ANN. § 263.404(b).
Unlike the findings necessary to support termination of parental rights, which
require clear and convincing evidence, a finding that appointment of a parent as
managing conservator would significantly impair a child’s physical health or
emotional development is governed by a preponderance of the evidence standard.
See In re J.A.J., 243 S.W.3d at 616; see also TEX. FAM. CODE ANN. § 105.005
(“Except as otherwise provided by this title, the court’s findings shall be based on a
preponderance of the evidence.”). In determining whether the evidence supports a
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trial court’s determination that the appointment of a parent as managing conservator
would not be in the best interest of the child because it would significantly impair
the child’s physical health or emotional development, courts can consider evidence
of the parent’s specific acts and omissions in the past, including a parent’s past use
of narcotics, a parent’s criminal history, the parent’s failure to provide stability in
the home, and a parent’s failure to visit or communicate with the child, as well as
other parental misconduct. See Danet v. Bahn, 436 S.W.3d 793, 797 (Tex. 2014);
Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990); In re C.L.J.S., 2018 WL
6219615, at *4. These circumstances need not rise to a level that warrants
termination of parental rights in order to support a finding that the appointment of a
parent as a managing conservator would impair the child’s physical health or
emotional development. See In re J.A.J., 243 S.W.3d at 615–16; In re C.L.J.S., 2018
WL 6219615, at *4.
Here, it is undisputed that mother used illegal narcotics at the beginning of
this case. Although narcotics-use testing results were not admitted into evidence at
trial, DFPS caseworker Deese testified that DFPS filed its petition on August 2,
2018, seeking termination of the parental rights of mother in part “due to substance
abuse.” According to Deese, mother tested positive for narcotics use by urinalysis
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on August 23, 2018.51 Mother testified that she last used marijuana in 2017 or 2018
and she last used methamphetamine in 2017. See F.A.B. v. Dep’t of Family &
Protective Servs., No. 01-10-00930-CV, 2012 WL 5310024, at *3–5 (Tex. App.—
Houston [1st Dist.] Oct. 25, 2012, no pet.) (mem. op.) (considering narcotics use in
determining whether trial court erred in finding appointment of parent as managing
conservator of children would not be in their best interest because appointment
would significantly impair children’s physical health or emotional development).
Mother also testified that in 2011 and 2014 she was convicted of the offense
of prostitution and she was sentenced to ten days’ confinement for each offense. At
the time of those offenses, D.L.W.W. would have been about three years old and six
years old, respectively, and J.A.W. would have been about a year old and four years
old, respectively.
Although mother had made significant progress addressing her
substance-abuse issues, had a stable home that was suitable for the children,
completed her parenting classes and individual therapy, and had appropriate visits
with the children throughout the case, she was still participating in family-therapy
sessions at the time of trial and working on the sixth step of her “12-Step Program.”
Child Advocates volunteer Philo recommended that DFPS be awarded managing
51
Deese, although she contradicted herself during her testimony, stated at one point
that mother tested positive for cocaine use on May 1, 2019 by a hair-follicle test.
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conservatorship so that mother could have more time to address her issues. Further,
despite the fact that D.L.W.W. and J.A.W.’s current placement was not ideal and
they wanted to be returned to mother’s care, based on the undisputed evidence of
mother’s past narcotics use, we conclude that there is some evidence of a substantive
and probative character supporting the trial court’s determination that the
appointment of DFPS, and not mother, would be in the children’s best interest. Thus,
we hold that the trial court did not err in appointing DFPS as sole managing
conservator of the children.
We overruled mother’s fourth issue.
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Conclusion
We reverse the portion of the trial court’s order terminating the parental rights
of mother and father to A.M.M. and remand that portion of the case to the trial court
for a new trial. See TEX. R. APP. P. 28.4(c); In re J.O.A., 283 S.W.3d at 347. We
affirm the portion of the trial court’s order appointing DFPS as the children’s sole
managing conservator.52
Julie Countiss
Justice
Panel consists of Justices Keyes, Hightower, and Countiss.
52
Father did not challenge the portion of the trial court’s order appointing DFPS as
A.M.M.’s sole managing conservator. See In re J.A.J., 243 S.W.3d 611, 612–13
(Tex. 2007).
62