In the Interest of J.B. and J.S., Children v. the State of Texas

Opinion filed May 3, 2023
In The
Eleventh Court of Appeals
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No. 11-22-00305-CV
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IN THE INTEREST OF J.B. AND J.S., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10101-CX
MEMORANDUM OPINION
This is an appeal from an order in which the trial court terminated the parental
rights of the mother of J.B. and J.S. See TEX. FAM. CODE ANN. § 161.001 (West
2022). Appellant filed a notice of appeal. In three issues, Appellant challenges the
sufficiency of the evidence and the discretion of the trial court to take judicial notice
of prior testimony in a different case. We affirm in part and reverse and remand in
part.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. FAM. § 161.001(b). To terminate one’s parental rights under
Section 161.001, it must be shown by clear and convincing evidence that the parent
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id. In this case, the trial court found
that the mother had committed two of the acts listed in Section 161.001(b)(1)—those
found in subsections (D) and (E). The trial court also found that termination of the
mother’s parental rights would be in the best interest of the child. See id.
§ 161.001(b)(2).
To determine if the evidence is legally sufficient in a parental termination
case, we review all of the evidence in the light most favorable to the finding and
determine whether a rational trier of fact could have formed a firm belief or
conviction that its finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
To determine if the evidence is factually sufficient, we give due deference to the
finding and determine whether, on the entire record, a factfinder could reasonably
form a firm belief or conviction about the truth of the allegations against the parent.
In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We note that the factfinder—in this
case the trial court—is the sole arbiter of the credibility and demeanor of witnesses.
In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (citing In re J.L., 163 S.W.3d 79, 86–
87 (Tex. 2005)).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
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limited to, (1) the desires of the child, (2) the emotional and physical needs of the
child now and in the future, (3) the emotional and physical danger to the child now
and in the future, (4) the parental abilities of the individuals seeking custody, (5) the
programs available to assist these individuals to promote the best interest of the
child, (6) the plans for the child by these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent–child relationship
is not a proper one, and (9) any excuse for the acts or omissions of the parent. Id.Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
Evidence Presented at Trial
The sparse record on appeal is concerning, and the evidence presented on
appeal requires careful review. The witnesses’ testimony comprises only twenty-
two pages in the reporter’s record, and only two witnesses testified at the termination
hearing: a 2INgage supervisor and the father of the children. 1
According to the supervisor, both children had previously been in the care of
their aunt for two years but had been placed on a monitored return with the father
approximately five months prior to trial. The Department of Family and Protective
Services (the Department) became involved in the custody and care of J.B. and J.S.
after Appellant took the children from the father’s home and refused to bring them
The father filed an acknowledgment of paternity as to J.B. and was adjudicated the father of J.S.
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following a DNA test.
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back. 2 At the hearing, the supervisor testified that there were concerns that
Appellant made poor parenting choices and that she would allow family members to
have access to the children when it was not appropriate to do so. The supervisor
expressed concerns that Appellant’s dating relationships also put the children at risk.
However, the supervisor acknowledged that she did not know whether Appellant
continued to be in a dating relationship with the person that caused the Department
concern. Appellant had successfully completed parenting classes and a
psychological evaluation, but the supervisor nonetheless had concerns because
Appellant had not completed the required counseling sessions and had refused to
acknowledge she had a substance abuse problem—or to seek treatment for drug
addiction. And finally, the supervisor testified that Appellant had been unable to
maintain safe and stable housing, as required by her service plan.
The father testified that Appellant was consistent in visiting the children and
that they were bonded and got along well. The father told the trial court that he had
no objection to Appellant continuing to have supervised visitation with the children,
but that he did not want her to retain custodial rights for fear that the mother would
take the children and refuse to return them, as she had done in the past.
The Department offered two exhibits: an October 2021 drug test, in which
Appellant tested positive for cocaine, and the father’s acknowledgement of paternity
for J.B. The Department also asked the trial court to take judicial notice of the
testimony in a different case. The appellate record contains no context regarding the
other case or its relevance to the matter before the court. And although the trial court
We note that in a question posed by the father’s attorney regarding the Department’s involvement
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and Appellant’s taking the children from their father, the attorney asked, “[A]nd throughout that is when
they tested positive, correct?” Neither the question nor the answer indicates who “they” are or what “they”
tested positive for.
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initially questioned whether it was appropriate to take judicial notice of the
testimony in the other case, it appears that—hearing no objections—the trial court
did “consider all of that testimony as if it occurred in [the present] cause number.”
No reporter’s record or transcript of the testimony from the other case was offered
into evidence as an exhibit in this case or otherwise made a part of the reporter’s
record in this case.
The trial court determined that there was clear and convincing evidence that
Appellant’s parental rights should be terminated under subsections (D) and (E) and
that the termination was in the best interest of the children. Appellant’s parental
rights to J.B. and J.S. were terminated, and the father was named sole managing
conservator for both children.
On appeal, Appellant challenges the trial court’s rulings in three issues: first,
that the trial court abused its discretion in considering evidence not properly before
the court; second, that the evidence was insufficient as to the findings under
subsections (D) and (E); and third, that the evidence was insufficient to support the
trial court’s finding as to the best interest of the children.
Analysis
As we stated above, the termination of one’s parental rights must be supported
by clear and convincing evidence. FAM. § 161.001(b). We carefully scrutinize
termination proceedings, and we strictly construe involuntary termination statutes in
the parent’s favor. In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012).
A. To the extent that the trial court terminated Appellant’s rights based upon
testimony from another case, which was not offered into evidence in this case,
the trial court abused its discretion.
In Appellant’s first issue on appeal, she claims that the trial court abused its
discretion when it terminated her parental rights based on evidence that was not
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properly before the trial court. The record shows that the trial court was asked by
the Department to take “judicial notice of the testimony” from another case.
Appellant’s counsel indicated that he had no objection. After the Department rested,
the trial court clarified:
What I think y’all mean when you ask me to take judicial notice of the
prior testimony, the parties are basically stipulating that I can consider
all of that testimony as if it occurred in this cause number . . . .
Counsel for the parties indicated that the trial court’s statement accurately reflected
their intent.
The Texas Rules of Evidence permit a trial court to take judicial notice of a
fact that is not subject to reasonable dispute. See TEX. R. EVID. 201. A trial court
may take judicial notice of a document that has been filed in the case, but it may not
take judicial notice of the truth of allegations in the pleadings, affidavits, or other
documents in the file. In re Shifflet, 462 S.W.3d 528, 539 (Tex. App.—Houston [1st
Dist.] 2015, orig. proceeding). Just as the trial court may not consider the truth of
information contained in documents filed in the clerk’s record, it is not permitted to
take judicial notice of testimony presented in a prior proceeding, despite the
consensus of the parties at the time. “It is inappropriate for a trial judge to take
judicial notice of testimony even in a retrial of the same case.” C. G. v. Tex. Dep’t
of Family & Protective Servs., No. 03-22-00019-CV, 2022 WL 2069128, at *3 (Tex.
App.—Austin June 9, 2022, pet. denied) (mem. op.) (quoting Guyton v. Monteau,
332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.)); accord
Camp Mystic, Inc. v. Eastland, 399 S.W.3d 266, 278 (Tex. App.—San Antonio
2012, no pet.) (holding that a trial court cannot take judicial notice of testimony from
a previous proceeding at a subsequent proceeding unless the testimony is admitted
into evidence at the subsequent proceeding).
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The Department asserts that Appellant failed to preserve this issue for review.
We agree, in part. Generally, as with other issues involving the admission or
exclusion of evidence, a trial court’s error in taking judicial notice must be preserved
in the court below. C. G., 2022 WL 2069128, at *4 (collecting cases); see TEX. R.
APP. P. 33.1(a). Because Appellant did not object at trial, she did not preserve her
issue with respect to the trial court’s ruling. See TEX. R. APP. P. 33.1(a)(1)(A).
However, although the parties seemed to stipulate that the trial court could
consider the testimony from the other trial, no such testimony was ever offered or
admitted into evidence at the trial from which this appeal was brought. “[I]n order
for testimony at a prior hearing or trial to be considered at a subsequent proceeding,
the transcript of that testimony must be properly authenticated and entered into
evidence.” Camp Mystic, 399 S.W.3d at 278 (citing Paradigm Oil, Inc. v. Retamco
Operating, Inc., 161 S.W.3d 531, 540 (Tex. App.—San Antonio 2004, pet. denied);
Escamilla v. Estate of Escamilla, 921 S.W.2d 723, 726 (Tex. App.—Corpus Christi–
Edinburg 1996, writ denied); see also Davis v. State, 293 S.W.3d 794, 797–98 (Tex.
App.—Waco 2009, no pet.); Thomason v. Parker, No. 09-00-154 CV, 2001 WL
523962, at *2 (Tex. App.—Beaumont May 17, 2001, no pet.) (not designated for
publication) (collecting cases); May v. May, 829 S.W.2d 373, 376 (Tex. App.—
Corpus Christi–Edinburg 1992, writ denied).
As no records from the prior trial were offered or admitted into evidence, the
consideration of the testimony “as if it occurred in this cause number” was an abuse
of discretion by the trial court. The trial court was not permitted to rely on the prior
testimony merely on the stipulation of the parties; the prior testimony needed to have
been offered and admitted as evidence in this case. See Camp Mystic, 399 S.W.3d
at 278. We sustain Appellant’s first issue to the extent that it relates to the
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termination of her rights based upon evidence that was not admitted at the trial in
this case.
Furthermore, during a sufficiency review on appeal, we are not permitted to
consider factual statements or allegations that were not admitted during a final
hearing. In re F.M.E.A.F., 572 S.W.3d 716, 723 (Tex. App.—Houston [14th Dist.]
2019, pet. denied) (citing In re K.F., 402 S.W.3d 497, 505 (Tex. App.—Houston
[14th Dist.] 2013, pet. denied)); see also In re A.R., No.11-22-00163-CV, 2022 WL
14997928, at *2 n.2 (Tex. App.—Eastland Oct. 27, 2022, no pet.) (mem. op.); In re
R.S.D., 446 S.W.3d 816, 820 n.4 (Tex. App.—San Antonio 2014, no pet.). In this
opinion, we therefore review only the evidence and testimony presented during the
final hearing and contained in the reporter’s record that is before us in this cause.
B. The evidence is legally sufficient to support the finding under (E).
In Appellant’s second issue on appeal, she challenges the findings made by
the trial court under Section 161.001(b)(1)(D) and (E). Because of our holding with
respect to Appellant’s third issue, we need address only the legal sufficiency
challenge to the trial court’s findings under Section 161.001(b)(1), which could
potentially result in a rendition rather than a remand. See In re J.F.C., 96 S.W.3d
256, 266 (Tex. 2002); see also TEX. R. APP. P. 47.1.
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 34 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (E) must
be based on more than a single act or omission; a voluntary, deliberate, and
conscious course of conduct by the parent is required. In re D.T., 34 S.W.3d 625,
634 (Tex. App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228
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(Tex. App.—Eastland 1999, no pet.). The offending conduct need not be directed at
the child, nor does the child actually have to suffer an injury. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009). With respect to the sufficiency of the evidence to
support a finding under subsection (E), “endangering conduct is not limited to
actions directed towards the child.” Id. (citing Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987)). The endangering conduct may include the
parent’s actions before the child’s birth and may relate to the parent’s actions while
the parent had custody of other children. Id.; In re S.T., No. 11-19-00363-CV, 2020
WL 2610393, at *3–4 (Tex. App.—Eastland May 18, 2020, pet. denied) (mem. op.)
(upholding finding under subsection (E) based upon parent’s conduct with other
children). Drug use by a parent may constitute evidence of endangerment. J.O.A.,
283 S.W.3d at 345. Domestic violence may also constitute evidence of
endangerment. C.J.O., 325 S.W.3d at 265.
The evidence presented at trial is legally sufficient to support the finding under
subsection (E). The record shows that Appellant was unable to maintain safe and
stable housing for the children and that she refused to acknowledge her struggle with
substance abuse—or to seek any form of treatment. The record also shows that
Appellant was involved in unsafe dating relationships and that she had previously
taken the children away from the father and refused to return them. Viewing all of
the evidence presented at trial in the light most favorable to the trial court’s finding
under subsection (E), we hold that a rational trier of fact could have formed a firm
belief or conviction that its finding was true. See In re J.P.B., 180 S.W.3d at 573.
Because only one statutory ground is necessary to support termination and because
we have upheld the legal sufficiency of the evidence to support the finding under
subsection (E), we need not address Appellant’s issue insofar as it relates to
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subsection (D). See FAM. § 161.001(b)(1); In re N.G., 577 S.W.3d 230, 234–35
(Tex. 2019); see also TEX. R. APP. P. 47.1. Accordingly, we overrule Appellant’s
second issue to the extent that it relates to the legal sufficiency of the evidence to
support a finding under Section 161.001(b)(1)(E).
C. The evidence is legally sufficient but factually insufficient as to best
interest.
In Appellant’s third issue, she challenges the sufficiency of the evidence to
support the trial court’s finding that termination of her parental rights would be in
the best interest of J.B. and J.S. See FAM. § 161.001(b)(2). There is a “strong
presumption” in Texas that the best interest of a child is served by keeping the child
with the parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Giving due regard to
that presumption, the evidence presented at the trial in this case, and the Holley
factors, we hold, as explained below, that the evidence is legally sufficient, but
factually insufficient, to support the trial court’s finding that termination of
Appellant’s parental rights would be in the best interest of J.B. and J.S. See Holley,
544 S.W.2d at 371–72.
With respect to J.B.’s and J.S.’s best interest, the evidence—though sparse—
shows that, at the time of trial, Appellant had not been able to maintain safe and
stable housing and that she had not begun any treatment for substance abuse.
Furthermore, Appellant’s prior “dating relationships” were a “concern” of risk to the
children, and she had taken the children from their father and refused to return them.
Viewing the evidence in the light most favorable to the trial court’s best interest
finding, and considering the record as it relates to the emotional and physical needs
of the children now and in the future, the emotional and physical danger to the
children now and in the future, the parental abilities of Appellant, Appellant’s lack
of a stable home, and the indication that Appellant would continue to need
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supervision with the children, we hold that a rational trier of fact could have formed
a firm belief or conviction that its finding was true. See id.; see also J.P.B., 180
S.W.3d at 573. Thus, the evidence is legally sufficient. Accordingly, we overrule
Appellant’s third issue to the extent that it relates to the legal sufficiency of the
evidence.
However, based upon our review of the entire record, without viewing the
evidence in the light most favorable to the trial court’s best interest finding but still
giving due deference to that finding, we hold that the trial court could not reasonably
have formed a firm belief or conviction that termination of the parent–child
relationship between Appellant and J.B. and J.S. was in the children’s best interest.
See Holley, 544 S.W.2d at 371–72; see also C.H., 89 S.W.3d at 25–26. Both
witnesses testified that Appellant and J.B. and J.S. were bonded and had a loving
relationship, and both witnesses indicated that, if Appellant’s parental rights were
terminated, the father would still like for her to be part of the children’s lives and
would allow supervised visitation. There was no indication of what the desires of
J.B. and J.S. were, nor was there any indication that the visits between Appellant and
the children were not going well and would not continue to do so. Further, the only
positive drug test in the record before us was conducted one year prior to trial. The
existence of a single drug test does not reasonably show that Appellant is still testing
positive for drugs, nor that she will continue to do so. Appellant completed her
required parenting classes and had begun to see a new counselor, presumably to
fulfill the required counseling sessions that she had not yet completed.
Appellant did not request to be appointed managing conservator of J.B. and
J.S. Instead, she requested to be appointed as a possessory conservator with
visitation rights to continue to have a relationship with the children. While, if true,
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Appellant’s continued drug use would be a concern in considering the best interest
of the children, without further evidence supporting a continued problem and with
the father and the Department indicating that visitation should continue, the trial
court had the option under the Family Code to severely restrict Appellant’s
possessory rights, without terminating them, in order to protect J.B.’s and J.S.’s best
interest. See In re J.J.R.S., 627 S.W.3d 211, 223 (Tex. 2021) (stating that the Family
Code “does not require termination when a severe restriction or limitation on access
can also be in the best interest of the child while preserving the possibility that the
parent and child may continue to have a relationship in the future”). The record
shows that the father was willing to continue to allow Appellant supervised visitation
with the children and that his only concern was being able to pursue criminal charges
if she took them again in the future. Based on our review of the record, while there
may be inferences that can lead us to termination as the best interest, the evidence
itself—as admitted—is factually insufficient to support the trial court’s finding that
termination of Appellant’s parental rights is in the best interest of J.B. and J.S. See
Holley, 544 S.W.2d at 371–72.
We cannot hold in this case that the trial court’s finding as to best interest is
supported by factually sufficient evidence under the clear and convincing
evidentiary standard. Accordingly, we sustain Appellant’s third issue on appeal
insofar as she challenges the factual sufficiency of the evidence to support the trial
court’s finding that it would be in J.B.’s and J.S.’s best interest to terminate
Appellant’s parental rights.
D. Other Matters Not Dispositive of Appeal
Because we have held that the evidence in this case is factually insufficient to
support the finding made by the trial court pursuant to Section 161.001(b)(2), we
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need not address the factual sufficiency of the evidence with respect to the trial
court’s findings under Section 161.001(b)(1). See TEX. R. APP. P. 47.1. Further, we
note that Appellant does not challenge the trial court’s appointment of the father as
the permanent managing conservator for both J.B. and J.S. Accordingly, this court’s
opinion and judgment are not to be read to alter the trial court’s appointment of the
father as the managing conservator of J.B. and J.S. See In re J.A.J., 243 S.W.3d 611,
615–17 (Tex. 2007) (holding that a parent’s appellate challenge to parental
termination did not encompass a challenge to the appointment of managing
conservator).
This Court’s Ruling
We reverse the trial court’s termination order insofar as it terminated the
parental rights of the mother to the children involved in this case, and we affirm the
order of the trial court in all other respects. We remand this cause to the trial court
for further proceedings. Any proceeding on remand must be commenced within 180
days of this court’s mandate. TEX. R. APP. P. 28.4(c).
W. BRUCE WILLIAMS
JUSTICE
May 3, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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