J. G. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00790-CV
J. G., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-21-000779, THE HONORABLE AURORA MARTINEZ-JONES, JUDGE PRESIDING
MEMORANDUM OPINION
J.G. (Mother) appeals from the trial court’s decree terminating her parental rights
to her son, Jordan.1 See Tex. Fam. Code § 161.001(b). Mother challenges the legal and factual
sufficiency of the evidence supporting the trial court’s findings and argues that she established an
affirmative defense to termination due to an alleged disability and the Department’s failure to
provide her necessary accommodations therefor. See id. § 161.001(b)(1)(N), (O), (2), (d). For
the following reasons, we affirm the trial court’s termination decree.
BACKGROUND AND SUMMARY OF THE EVIDENCE
In February 2021, the Department filed an original petition in a suit affecting the
parent-child relationship (SAPCR) seeking termination of Mother’s parental rights and/or
1
For the child’s privacy, we will refer to him by an alias and to his family members by
their relationships to him or by aliases. See Tex. R. App. P. 9.8.
managing conservatorship of Jordan.2 In the petition, the Department alleged that temporary
orders were necessary for the safety and welfare of Jordan, including the appointment of the
Department as the child’s temporary managing conservator. Attached to the petition was an
Affidavit in Support of Extraordinary Relief in which Department investigator Steven Guillory
averred that the Department had taken emergency custody of Jordan due to immediate danger to
him caused by Mother’s neglectful supervision.
In the affidavit, Guillory represented that then one-year-old Jordan has intensive
medical needs, including needing to be fed through a G-tube,3 and was living in a shelter with
Mother at the time, and that two months prior to Jordan’s removal the Department received a
referral that Mother had been under the influence of marijuana while caring for Jordan.
Immediately before Jordan’s removal, the Department received a second referral alleging that
Mother admitted she had been too intoxicated—from drinking alcohol and using marijuana—to
replace Jordan’s G-tube, which had fallen out, and had called 911 for assistance. Jordan was
transported to the hospital, and EMS would not allow Mother to accompany Jordan in the
ambulance due to her level of intoxication. During the investigation of the second referral,
Mother admitted that she had been too intoxicated to replace Jordan’s feeding tube and that
2
The Department also sought termination of the parental rights of Jordan’s unknown
father, and the final decree terminated the unknown father’s rights after finding that he had not
registered with the paternity registry under Family Code Chapter 160 and that the Department
had exercised due diligence in determining his identity and location. See Tex. Fam. Code
§ 161.002(b)(2)(A).
3
A G-tube (also known as a gastric or gastrostomy feeding tube) is a tube inserted
through a small incision in the abdomen into the stomach that is used for long-term enteral
nutrition. See Feeding Tube, Wikipedia, https://en.wikipedia.org/wiki/Feeding_tube#Gastric_
feeding_ tube (last visited May 19, 2023).
2
everyone present at the time of the incident was also high and intoxicated, resulting in no sober
caregiver being present.
The Department placed Jordan in a medical-needs foster home for the duration of
the case. The parties entered into a mediated settlement agreement (MSA) in January 2022, by
which they agreed to a statutory extension of the case’s deadline and that Mother (1) “shall visit
with the child as scheduled by the Department” and “confirm each visit 24 hours in advance”;
(2) “shall participate in all drug testing requirements within 24 hours of any such request
from the Department”; and (3) “shall attend Marijuana Anonymous and shall provide proof
of attendance to the Department,” among other stipulations. The trial court rendered an order
extending the dismissal date per the parties’ agreement and incorporating the provisions of the
MSA pertaining to the required actions of Mother.
On May 9, 2022, Mother filed a motion for continuance of that date’s scheduled
merits hearing, arguing that in March and per court order, she had been evaluated by a
psychologist and been diagnosed with “borderline intellectual functioning, with an IQ of 66, well
below the cutoff of 70-75 for a diagnosis of Intellectual Disability.” In her motion, Mother
further argued that—while she had previously made “multiple attempts” to execute an affidavit
of relinquishment of parental rights, which were not successful “due to logistical problems”—
she recently had “indicated a desire to maintain parental rights.” She sought the continuance to
afford the parties a chance to again mediate the case. The trial court granted the continuance,
authorized mediation, and set trial dates of July 18, 25, and August 1. On May 10, Mother filed
her “First Amended Answer and Counter-Petition with Americans with Disabilities Act Claim,”
in which she raised as an affirmative defense to the (O) ground for termination, see Tex. Fam.
Code § 161.001(b)(1)(O), that she (1) had been unable to comply with specific provisions of the
3
court order and (2) had made a good-faith effort to comply with the order and that her failure
to comply was not attributable to her fault, see id. § 161.001(d). She additionally asserted an
affirmative defense under the Americans with Disabilities Act (ADA), see 42 U.S.C. § 12102,
identifying herself as having “an intellectual disability and mental illness.” She asserted that the
Department is required to “make reasonable accommodations to enable [her] meaningful access
to services,” specifically requiring the following accommodations: “more time to process
information; less stressful settings for visitation and meetings; and repeated and simplified
explanations for requirements and requests made of her.”
Trial to the court commenced August 9, 2022, but—after brief initial testimony by
the caseworker—was recessed and continued by the parties’ agreement. Trial recommenced and
concluded October 20, 2022.
Evidence admitted at trial
Relevant to the issues on appeal, the trial court admitted into evidence the
removal affidavit, several of the court’s orders prescribing the actions Mother must take to obtain
the return of Jordan, and the parties’ MSA. Three witnesses testified: Department caseworker
Shawn Schroeder, Mother, and the foster mother.
Schroeder testified that he became the caseworker for this case in early April
2022 and reviewed the case file, learning about Jordan’s current medical condition and needs
(he had a G-tube and was recovering from a staph infection) and the reasons for Mother’s
involvement with the Department. He explained that, from the December 2020 intake—when
Mother and Jordan were staying at a women’s shelter and she had been found to be under the
influence of marijuana while caring for Jordan—the Department determined there was “Reason
4
to Believe” the intake allegations and accordingly assigned Mother to FBSS (family-based safety
services). The second intake, in February 2021, was based on a report that Mother was at a party
with friends, all of whom were intoxicated from alcohol and/or marijuana; that Jordan’s G-tube
fell out and Mother could not reinsert it; that Mother called 911 to assist with the G-tube; and
that the paramedics took Jordan to the hospital but would not allow Mother to ride with them
because she was too intoxicated. Mother arrived at the hospital at 6:30 a.m. the next day, in
“an altered state,” and Jordan “seemed to be underweight.” Mother left the hospital at 8:00 a.m.,
saying she would return at 11:00 a.m., but she did not return, even though Jordan stayed in the
hospital for a few weeks and Mother had a visitation with Jordan scheduled during that time.
Upon discharge, Jordan was placed with the foster family with whom he remained during the
case’s pendency—about twenty months. In addition to needing to be fed through his G-tube,
Jordan also requires occupational therapy, speech therapy, and physical therapy and regularly
sees a general surgeon, a neurologist, an ophthalmologist, a dietician, an infectious-disease
specialist, and a GI doctor.
Schroeder testified that after being assigned to this case, he tried to contact
Mother by phone and text but did not receive any responses; after further attempts he discovered
that the phone number she had provided the Department did not work. Furthermore, he
explained that Mother had not “been engaged with” any of her court-ordered services or been in
contact with the Department since January 2022. Schroeder explained that although Mother had
completed parenting classes, an initial OSAR evaluation (a substance-abuse screening), and
IOP (intensive outpatient treatment), she had not completed the court-ordered requirements of
providing the Department with proof of attendance at Marijuana Anonymous and being
5
successfully discharged from individual therapy. Mother had also not submitted to required drug
or alcohol testing since January 2022.
The trial court’s orders required Mother to attend visitations with Jordan as
scheduled by the Department, but Mother had attended only eleven of the forty-six scheduled
visitations, with the most recent visit occurring in January 2022—about nine months before trial.
The visitations were available either virtually or in-person, and although the previous caseworker
and Schroeder had offered to transport Mother to in-person visitations, she never accepted the
offers or asked for assistance with transportation to her services (to which request Schroeder
testified he would have said yes). The trial court’s orders required Mother to virtually attend
Jordan’s specialty doctors’ appointments, but Mother had not attended any of them during the
pendency of the case. Mother explained to Schroeder that her failure to attend visitations was
because she was too busy or that she simply needed to reschedule, without providing a reason;
sometimes Mother did not confirm her visitations twenty-four hours in advance, as required, and
thus the visitations did not occur.
On “multiple occasions” during Schroeder’s tenure as caseworker on this case,
Mother had informed him that she wanted to give up Jordan for adoption and relinquish her
parental rights. The most recent time she had informed him of such desire was August 5, 2022.
Schroeder’s communication with Mother ceased for periods of weeks or months because she had
changed her phone number but did not inform the Department as required. He had most recently
lost contact with Mother in August 2022; contact was reestablished shortly before trial when a
visitation with Jordan was scheduled. However, that visitation did not occur because Mother did
not confirm it even though Schroeder had informed her of the confirmation requirement.
6
Schroeder testified that the Department is concerned that Mother cannot provide a
“safe, stable home” for Jordan and refuses to take drug and alcohol tests—admitting to him that
she still smokes marijuana, at least since August 2022 (the last time he spoke with her). He
testified that the Department knows Mother suffers from depression and seizures and has an IQ
of 66. The Department believed that adoption by a safe and loving family was in Jordan’s best
interest and stated that the Department would begin the process of finding him an adoptive home
if Mother’s parental rights were terminated because after that juncture there would be no “ties to
anything,” making adoption more likely. Although the foster family was not willing to adopt
Jordan, they were willing to care for him until he could be adopted. Mother had told Schroeder
that she has no family support in Austin to help with raising and caring for Jordan.
Mother testified that this CPS case began as an FBSS case because the supervisor
of the shelter where she was staying had smelled marijuana on her, and Mother admitted that she
had had marijuana in her possession. She admitted that it was not a good decision to go to the
party in February 2021 while she was involved in the FBSS case and knowing that the friend
hosting the party “just wanted to get drunk.” She testified that Jordan had lost two pounds
between a hospital admission in January 2021 and the February incident with his G-tube.
Mother admitted that she had not taken any required drug tests during the current calendar year,
that the last time she visited Jordan was December 2021, and that the Department offered to
transport her to visitations but was unable to assist with transportation to Jordan’s doctor
appointments. She testified that she had provided the Department with proof of her attendance at
Marijuana Anonymous—she had attended about ten meetings in 2021—but could not remember
what the proof was. While Mother had previously informed the Department that she wanted
Jordan to be adopted, she had changed her mind and wanted him returned to her care.
7
Mother explained why she had stopped submitting to drug and alcohol testing:
because the way the Department’s “system is set up, it is very harsh on my mental and on my
physical” and because the visitations and testing were “breaking me down.” She had not been in
contact with her caseworker because she was “going through a lot financially, mentally” and
was “worried about [her] baby.” She had requested that the Department allow her to visit with
Jordan outside the Department offices, such as a park or restaurant, but the Department had
refused. She explained the reason for requesting a change in visitation location: “So we can be
able to grow, get to know each other more,” and because the situation is “detrimental” and
“heartbreaking” for her.
Describing the visits at Department offices that she attended, Mother stated they
“were fun” and that she did not “struggle” during the visits at all. She and Jordan had had “good
times” at the visitations, although she noticed that he had “stronger bonds” with the nurse, who
would periodically come into the room and “mess up” her connection with Jordan, even though
she had wished the nurse would simply stay in the room so that they could talk and she could
receive updates on his health. When explaining to Department personnel why she did not like
visiting Jordan in Department offices, she told them that “it was just really depressing.” Mother
described her upbringing, explaining that her mother suffered from schizophrenia, requiring
Mother to take care of her own mother from a very young age, which experience led Mother to
become a certified nursing assistant.
Mother confirmed that she did not have any family or friend support currently. If
Jordan were returned to her care, she would need help taking care of him, including equipment
and supplies and nursing assistance. She receives Medicaid, and Jordan receives governmental
SSI (Supplemental Security Income) due to his disabilities. Mother believed that if she received
8
nursing help with Jordan, she would be able to care for him on her own and that the government
assistance she received would be sufficient financial support. Mother demonstrated familiarity
with Jordan’s medical needs and required care up until he was removed but admitted that she
was less familiar with his current needs and care because the Department had not been
“updating” her.
Mother currently was living in a studio apartment but was working on getting a
bigger one. She explained that when Jordan was removed, she had been hanging around friends
who were “negative influences” but that she had since removed herself from such people through
discipline and building a relationship with God. She admitted to still using marijuana “from time
to time” but had not drunk alcohol since her son was removed. Mother explained that marijuana
does not impair her ability to be an attentive parent to Jordan and that it, rather, makes her “feel
better” and helps with her depression and mood. She would be willing to stop using marijuana,
work with a Christian-based therapist, and try medications prescribed by the “right psychiatrist”
if her parental rights were not terminated.
Mother testified that it was important that she maintain her parental rights because
Jordan is her child and she “deserves” to be his parent and be a “whole family” again and return
to their “regular life,” now that she no longer has chaotic distractions in her life and that her
life and home have become “peaceful.” If Mother kept her parental rights, she planned to take
Jordan to school, have fun and play outside together, and “get his development going.” She
explained that she was not currently working because scheduling around Jordan’s visitation
schedule was too hard, even though she had not visited since December 2021. She briefly
worked in June 2022 as a certified nursing assistant but was sexually assaulted by a coworker;
after an unsuccessful attempt to resolve the issue with the administrator, Mother decided to
9
leave the position. She testified that she had spoken with a therapist about the sexual assault but
could not provide the name of the therapist, explaining that most of her counseling comes from
watching videos on YouTube and TikTok.
Jordan’s foster mother testified that her home is a “medical primary need home”
and that Jordan receives 100 hours of nursing care per week—50 at night and 50 during the day.
When Jordan arrived in her home at the start of the case, he did not eat anything by mouth and
“laid on his back all the time,” using his feet to pick up items rather than his hands. He was quite
physically and mentally delayed and was recovering from a staph infection on his hand. In the
twenty-one months he had been in her care, he had improved greatly: he was walking, running,
trying to eat baby foods, mimicking sounds and trying to speak, and playing with other children.
In addition to the nursing care, Jordan spends roughly 100 hours per week in therapy, including
speech, physical, and occupational therapy and ECI (early childhood intervention). Jordan has
multiple medical specialists he sees regularly, averaging about two appointments per month.
The foster mother described an average day for Jordan in great detail: wake-up
time, nap time, and bedtime; feedings and meals; hygiene; therapy; play time; and administration
of medications. Several other children live in the home, and Jordan has benefitted greatly from
the social interaction and attempting to speak and eat what “everybody is eating.” She testified
that, although Jordan has extensive medical needs and requires specific caregiving, “anybody can
learn” to provide the care, and that it would be important for him to be adopted by a family who
would “love and accept him for what he is” so that he can “grow and integrate with a family”
earlier in life instead of later. She believed that Jordan could have a “normal life, with proper
care” if he continues to receive the services and caregiving that her family and the Department
have been providing.
10
STANDARD OF REVIEW
To terminate a parent’s rights to her child, the Department must prove by clear
and convincing evidence that the parent engaged in conduct constituting at least one statutory
ground for termination pursuant to Section 161.001 and that termination is in the child’s best
interest. Tex. Fam. Code § 161.001(b); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). 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 § 101.007; In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). We defer to the
factfinder, who, “having full opportunity to observe witness testimony first-hand, is the sole
arbiter when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498,
503 (Tex. 2014).
In legal-sufficiency reviews, appellate courts consider undisputed evidence
contrary to the finding at issue but assume that the factfinder resolved disputed facts in favor of
the finding. A.C., 560 S.W.3d at 630–31. The evidence is legally sufficient “if, viewing the
evidence in the light most favorable to the fact-finding and considering undisputed contrary
evidence, a reasonable factfinder could form a firm belief or conviction that the finding was
true.” Id. at 631. In contrast, for factual-sufficiency reviews, appellate courts weigh the disputed
evidence contrary to the finding against the evidence supporting the finding and ascertain
“whether disputed evidence is such that a reasonable factfinder could not have resolved it in
favor of the finding.” Id. “Evidence is factually insufficient if, in light of the entire record, the
disputed evidence a reasonable factfinder could not have credited in favor of a finding is so
significant that the factfinder could not have formed a firm belief or conviction that the finding
was true.” Id.
11
We consider a trial court’s finding on best interest in light of the factors set out in
Holley v. Adams: the child’s wishes, if appropriate given the child’s age; the child’s emotional
and physical needs now and in the future; present and future emotional or physical danger posed
to the child; the parenting skills of those seeking custody; any programs available to assist those
seeking custody to promote the child’s best interest; plans for the child’s future; the stability of
the home or proposed placement; conduct by the parent that might show that the parent-child
relationship is inappropriate; and any excuses for the parent’s conduct. 544 S.W.2d 367, 371–72
(Tex. 1976). The Holley factors are not exhaustive, not all factors must be proved, and a lack of
evidence about some of the factors does not “preclude a factfinder from reasonably forming a
strong conviction or belief that termination is in the child’s best interest, particularly if the
evidence [was] undisputed that the parental relationship endangered the safety of the child.”
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
“When considering the child’s best interest, we may take into account that a
parent is unable to provide adequate care for a child, lacks parenting skills, or exercises poor
judgment.” In re M.C., 482 S.W.3d 675, 688 (Tex. App.—Texarkana 2016, pet. denied).
“Parental drug abuse, which reflects poor judgment, is also a factor that may be considered when
determining the child’s best interest.” Id. Additionally, the amount of contact between the
parent and child and the parent’s past performance as a parent are relevant in determining the
child’s best interest. Id.12
DISCUSSION
Subsection (O) finding
In her first issue, Mother contends that the trial court erred in terminating her
parental rights under Subsection (b)(1)(O) because she proved all the elements of an affirmative
defense under Subsection (d) and under the ADA due to her disability.4 See Tex. Fam. Code
§ 161.001(b)(1)(O), (d); C.C.F. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00152-
CV, 2020 WL 4929782, at *5 (Tex. App.—Austin Aug. 19, 2020, pet. denied) (mem. op.)
(holding that plaintiff who pleads she was unable to comply with court order due to disability
must prove by preponderance of evidence her inability to comply, her good-faith effort to
comply, and her lack of fault in being unable to comply); In re B.L.M., 114 S.W.3d 641, 649
(Tex. App.—Fort Worth 2003, no pet.) (determining that “ADA complaint is in the nature of an
affirmative defense” and that defendant must plead, prove, and secure findings sustaining
defense).
4
Within this same issue, Mother appears to also challenge the legal and factual
sufficiency of the evidence supporting the following two elements of the trial court’s Subsection
(O) finding: (1) that Jordan was removed for abuse or neglect and (2) that she failed to comply
with the terms of the trial court’s orders specifically setting forth the services she must complete
to have Jordan returned to her. See Tex. Fam. Code § 161.001(b)(1)(O). However, Mother
admitted that she did not submit to required drug testing and did not attend visitations or doctor’s
appointments with Jordan, which—even in the absence of the caseworker’s similar testimony—
constitutes both legally and factually sufficient evidence supporting the second challenged
element. Legally and factually sufficient evidence also supports the first challenged element: the
caseworker’s testimony about Mother being too intoxicated to replace Jordan’s G-tube and
having no sober caregiver present; the removal affidavit; and the trial court’s finding in prior
temporary orders that Jordan’s remaining in Mother’s care posed a danger to his physical health
or safety. See R.J. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00190-CV, 2022 WL
4281615, at *5 (Tex. App.—Austin Sept. 15, 2022, pet. denied) (mem. op.) (recognizing that
trial court may rely on its prior orders and fact findings to support Subsection (O) finding); A.B.
v. Texas Dep’t of Fam. & Protective Servs., No. 03-19-00593-CV, 2020 WL 560585, at *2–3, 11
(Tex. App.—Austin Feb. 5, 2020, pet. denied) (mem. op.) (noting that trial court may sua sponte
take judicial notice of its prior orders and fact findings therein).
13
Subsection (d) provides,
(d) A court may not order termination under Subsection (b)(1)(O) based on the
failure by the parent to comply with a specific provision of a court order if a
parent proves by a preponderance of evidence that:
(1) the parent was unable to comply with specific provisions of the court
order; and
(2) the parent made a good faith effort to comply with the order and the
failure to comply with the order is not attributable to any fault of the parent.
Tex. Fam. Code § 161.001(d).
Simply pleading a Subsection (d) defense is not enough; the parent must establish
by a preponderance of the evidence that she was unable to comply, that she made a good-faith
effort to comply, and that her failure to comply was not attributable to any fault on her part.
See C.C.F., 2020 WL 4929782, at *5. Although in her counter-petition Mother raised this
affirmative defense and asserted that she has a disability, we conclude that there is legally
and factually sufficient evidence from which the trial court could reasonably conclude that
Mother did not meet her burden of proof on her Subsection (d) defense. See In re Y.M.L.,
No. 04-19-00168-CV, 2020 WL 1695498, at *4 (Tex. App.—San Antonio Apr. 8, 2020, pet.
denied) (mem. op.).
Mother testified that complying with the required drug testing was “harsh on [her]
mental and on [her] physical”; that the visitations were “breaking [her] down”; and that she had
asked the Department to change the visitation location because the office setting is “detrimental,”
“heartbreaking,” and “really depressing” to her. However, such descriptions of Mother’s
attempts to comply with specific provisions of the trial court’s orders are not evidence of an
inability to comply with the orders, whether that inability is allegedly due to disability or to
14
another reason. At most, this evidence might explain why Mother stopped taking drug and
alcohol tests and attending visitations after January 2021, but Subsection (d) requires more
than an explanation; it requires proving by a preponderance of evidence an inability to comply,
as well as that such failure to comply was not due to any fault of the parent. See Tex. Fam.
Code § 161.001(d). Furthermore, although there was some evidence that Mother suffers from
depression and seizures and has a low IQ and other unspecified mental-health issues—her
alleged disabilities—we cannot say that the evidence establishes by a preponderance that such
disabilities rendered her unable to comply with the trial court’s orders.
Moreover, as to Mother’s contention that the Department failed to make
reasonable accommodations for her alleged disabilities—assuming without deciding that Texas
recognizes a complaint of lack of compliance with the ADA in termination cases as an
affirmative defense—she did not introduce any evidence at trial demonstrating that she requested
accommodations from the Department regarding drug testing or that any particular
accommodations for that requirement were necessitated by her alleged disabilities. See In re
M.N.M., No. 05-14-00723-CV, 2014 WL 6737003, at *12 (Tex. App.—Dallas Dec. 1, 2014, pet.
denied) (mem. op.). Although Mother testified that she asked the Department to allow her to
have visitations outside of Department offices, she did not explain how such request was linked
to any disability but, to the contrary, testified that the office visitations had been fun and that she
did not struggle with them. Mother also fails to specify any provision of the ADA that the
Department allegedly violated. See 42 U.S.C. §§ 12111–12213. We cannot conclude that the
trial court erred in failing to find that Mother established either her Subsection (d) or ADA
affirmative defense, especially considering that the trial court—as factfinder—is the sole arbiter
of the witnesses’ credibility and demeanor. See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
15
We accordingly affirm the trial court’s Subsection (O) finding and need not, therefore, address
Mother’s second issue challenging the termination of her rights under Subsection (N). See
In re J.W., 645 S.W.3d 726, 748 (Tex. 2022).
Best-interest finding
In her third issue, Mother contends that the evidence was legally and factually
insufficient to prove that termination was in Jordan’s best interest. See Tex. Fam. Code
§ 161.001(b)(2). Because evidence of each Holley factor is not required to support a trial court’s
best-interest finding, see C.H., 89 S.W.3d at 27, we address only those factors on which there is
relevant evidence in the record.
Although Jordan was too young to express his desires, the trial court may infer
those from the evidence, see In re K.M., No. 07-16-00120-CV, 2016 WL 3660076, at *4 (Tex.
App.—Amarillo June 29, 2016, pet. denied) (mem. op.), including the fact that he had spent
minimal time with Mother, see In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied). Mother had not visited him for over nine months, a fact which supports
the conclusion that there was little emotional bond between the two, see In re M.B., No. 02-15-
00128-CV, 2015 WL 4380868, at *15 (Tex. App.—Fort Worth July 16, 2015, no pet.) (mem.
op.), despite Mother’s testimony that she loves Jordan and would like to maintain her parental
rights to him. The lack of an emotional bond between the child and the parent is relevant in
determining the child’s desires, In re C.N.S., 105 S.W.3d 104, 106 (Tex. App.—Waco 2003,
no pet), and Mother testified that—during the eleven times she attended visitation earlier in the
case—Jordan demonstrated a stronger bond with the nurse than with her. Additionally, the foster
mother testified that Jordan is “very happy” in her home, in which he had lived since he was a
16
little over a year old. Jordan lived with Mother for not much longer than the first year of his life,
with some of that in the hospital due to his serious medical conditions.
Regarding Jordan’s physical and emotional needs and the danger to him, the
evidence showed that Jordan is a medically fragile child with great needs who had been placed
in a medical-primary-needs foster home for children with special needs throughout the case.
He requires frequent, specific care for his multiple medical and developmental issues, receiving
nursing care of 100 hours per week and numerous therapy appointments. Evidence showed that
Mother’s intoxication leading to the second intake and Jordan’s removal rendered her unable to
meet his medical needs, which supports an inference that she may be unable to meet his needs
again in the future, especially in light of her continued use of marijuana through the case. See
In re J.I.G., No. 01-18-00023-CV, 2018 WL 3233874, at *10 (Tex. App.—Houston [1st Dist.]
July 3, 2018, no pet.) (mem. op.). Furthermore, Mother’s admission to continued marijuana use,
knowing her parental rights were in jeopardy, supports the conclusion that she is not willing or
able to provide the child with a safe environment—a primary consideration in determining best
interest. In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Mother also testified about her ongoing struggles with depression, for which she self-
medicates with marijuana, and the evidence showed that she had a tendency to disregard
psychiatric recommendations, indicating that she may not take prescribed medications in the
future, which supports an inference that her attitudes towards addressing her mental issues might
create a risk of danger to her properly caring for Jordan. See In re K.P., No. 09-13-00404-CV,
2014 WL 4105067, at *15 (Tex. App.—Beaumont Aug. 21, 2014, no pet.) (mem. op.); In re
K.W., No. 2-08-162-CV, 2009 WL 417913, at *6 (Tex. App.—Fort Worth Feb. 19, 2009,
no pet.) (mem. op.).
17
Regarding Mother’s parental abilities, she admitted that she had not attended any
of Jordan’s numerous medical appointments, citing lack of transportation, although the court had
ordered her to attend virtually. She admitted ignorance of Jordan’s present medical needs
because of her lack of communication with the Department but conceded that the Department
always provided an update on Jordan when she asked. Although Mother completed parenting
classes and IOP, she had not visited Jordan in ten months and still smoked marijuana even
though she admitted that her “true issue is marijuana” and had not provided documentation of
attendance at Marijuana Anonymous. She has unspecified mental-health issues but chooses to
self-medicate and watch online counseling videos rather than complete therapy with a personal
therapist, and she indicated a reluctance to take prescribed medications. Evidence showed
that Mother suffers from depression and seizures and has an IQ of 66. The trial court could
reasonably have considered the evidence of Jordan’s significant medical needs and Mother’s lack
of interest in being updated on his well-being and in establishing a bond with him as indicators
of her parenting abilities, with limited chances of improvement due to her low cognitive
functioning and ill-treated mental health issues. In analyzing a parent’s ability to parent, the
court may consider the special needs of the child, because the “needier the child, the more able
the parent must be.” In re A.L.M., 300 S.W.3d 914, 919 (Tex. App.—Texarkana 2009, no pet.).
Additionally, although Mother had access to programs to help her address her mental-health
and drug issues and was offered transportation for visitations, for the most part she did not avail
herself of them.
Stability and permanence are paramount in the upbringing of children. In re J.D.,
436 S.W.3d 105, 120 (Tex. App.—Houston [14th Dist.] 2014, no pet. Thus, a factfinder is free
to reject a parent’s assertions of future stability and of having learned from her mistakes. In re
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A.M., 385 S.W.3d 74, 83 (Tex. App.—Waco 2012, pet. denied). Mother testified only as to
vague plans for Jordan were he to be returned to her care, admitting that she did not have any of
the supplies or equipment she would need to care for him and that she has no family or friend
support. She explained wanting to keep her parental rights because Jordan is her child and
she “deserves” to raise him. Yet, Mother had changed her mind about wanting to relinquish her
parental rights more than once during pendency of the case, supporting an inference that she may
not be able to be a stable presence in Jordan’s life. Although Mother testified that she had last
drunk alcohol when Jordan was removed, the trial court could have disbelieved her testimony,
especially in light of the evidence that she had refused to take required drug and alcohol tests
since January 2021. Although the Department had not yet identified an adoptive family for
Jordan, Schroeder believed the Department would be able to find such a family after Mother’s
rights were terminated, and Jordan would be able to remain in the same foster home until such
adoption could occur. The Department’s plan for a child is not required to be definite prior
to termination, Spencer v. Texas Dep’t of Fam. & Protective Servs., No. 03-10-00498-CV,
2010 WL 5464110, at *3 (Tex. App.—Austin Dec. 31, 2010, no pet.) (mem. op.), and despite
Jordan’s significant special needs, the foster mother believed that anyone could learn how to
attend to them.
Regarding Mother’s acts or omissions and the excuses therefor, we have already
noted that Mother continued to use marijuana while caring for her medically fragile child, after
an initial intake resulting from her use of the drug and being placed in the FBSS program, and
that she continued to use it after her child was removed from her, knowing her parental rights
were in jeopardy. She failed to submit to drug and alcohol testing and visit Jordan for over nine
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months, explaining her failures with vague references to the requirements being physically and
mentally harsh and as being due to her “going through a lot” financially and mentally.
Viewing all the evidence in the light most favorable to the trial court’s decree, we
conclude that a reasonable factfinder could have formed a firm belief or conviction that
termination of Mother’s parental rights is in Jordan’s best interest. After weighing the disputed
evidence that is contrary to the best-interest finding against the evidence supporting the best-
interest finding, we conclude that the disputed evidence is not so significant that a reasonable
factfinder could not have resolved it in favor of the finding. Accordingly, after considering the
relevant factors under the appropriate standards of review, we conclude that the evidence is
legally and factually sufficient to support the trial court’s finding that termination of the parent-
child relationship is in Jordan’s best interest.
Judicial notice
In her final issue, Mother cites Texas Rule of Evidence 201(e), arguing that in a
December 6, 2022 letter ruling, the trial court represented to the parties that it had taken judicial
notice of the clerk’s file but failed to provide the parties with prior notice of its intent to take
judicial notice, which was improper. However, Rule 201 allows a court to take judicial notice
sua sponte, without providing parties notice, and expressly provides that if it takes notice before
notifying the parties, a party is entitled to be heard afterwards. See id. R. 201(c), (e). Mother
does not cite anywhere in the record demonstrating that she objected to the trial court’s taking
judicial notice or requested a hearing on the matter. She therefore has not preserved the issue
for our review. See C.G. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00019-CV,
2022 WL 2069128, at *3 (Tex. App.—Austin June 9, 2022, pet. denied) (mem. op.). Moreover,
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a trial court may take judicial notice of its own records and of the filings in a case, including its
own orders, but may not take judicial notice of the truth of matters alleged therein. See id. We
find no indication in the record that the trial court took judicial notice of the truth of the facts or
allegations in its records. We overrule Mother’s final issue.
CONCLUSION
Having overruled Mother’s issues, we affirm the trial court’s termination decree.
__________________________________________
Thomas J. Baker, Justice
Before Justices Baker, Smith, and Jones*
Affirmed
Filed: May 25, 2023
*
Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
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