COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00206-CV
IN THE INTEREST OF A.N. AND
J.N., JR., CHILDREN
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-98825J-13
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
This is an ultra-accelerated appeal2 in which Appellants Father and Mother
appeal the termination of their parental rights to their children Amy and Jack.3 In
1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
3
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to
minors in an appeal from a judgment terminating parental rights).
three issues, Father argues that the evidence is legally and factually insufficient
to support the endangering-environment, endangering-conduct, and best-interest
findings under Texas Family Code section 161.001(1)(D) and (E) and section
161.001(2). See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2) (West 2014). In
three issues, Mother argues that the evidence is legally and factually insufficient
to support the endangering-environment and endangering-conduct findings under
Texas Family Code section 161.001(1)(D) and (E) and that the evidence is
factually insufficient to support the best-interest finding under section 161.001(2).
See id. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Overview
The record reveals that the Department of Family and Protective Services
(the Department) has been involved in Father’s and Mother’s lives since shortly
after the birth of their daughter Amy in February 2011. The record reveals
numerous referrals for neglectful supervision and physical neglect of the children
by Father and Mother, for alleged drug use by Father and Mother, and for alleged
drug use by the extended family members with whom Father and Mother allowed
the children to stay. The record also reveals that Father and Mother failed to
establish stable housing throughout this case and that they failed to complete
their services. Because Father and Mother challenge both the sufficiency of the
evidence to support the endangerment grounds as well as the best-interest
ground, we set forth a detailed summary of the record below.
B. Prior CPS History
The affidavit attached to the “Petition for Protection of Children, for
Conservatorship, and for Termination in Suit Affecting the Parent-Children
Relationship” (the affidavit), along with some of the testimony at the termination
trial, sets forth Father’s and Mother’s prior CPS history.
1. February 7, 2011
On February 7, 2011, the Department received a referral for neglectful
supervision of Amy by Father and Mother. The allegations included the
following: Mother tested positive for opiates when she gave birth to Amy but
produced a prescription for Vicodin; Mother admitted smoking marijuana while
she was pregnant; Father appeared under the influence of drugs while at the
hospital; Father tested positive for opiates but produced a prescription for
Vicodin; Father admitted to smoking marijuana; Maternal Grandmother and
Paternal Grandmother admitted to using drugs in the past; Maternal
Grandmother tested positive for methamphetamine and amphetamine; and
Paternal Grandmother’s drug test was invalid. The affidavit states that the
allegations regarding Father’s and Mother’s drug use were validated because
Father and Mother left Amy in the care of Maternal Grandmother and Paternal
Grandmother while Father and Mother left to smoke marijuana. The Department
opened a Family-Based Safety Services (FBSS) case and provided services
from April 2011 to December 2011, but Father and Mother did not complete
services with FBSS.
2. June 11, 2011
On June 11, 2011, the Department received a referral for neglectful
supervision of Amy by Father and Mother and for physical abuse of Amy by
Father.4 The referral alleged that Father and Mother were stealing Paternal
Grandmother’s pain medications, antidepressants, and muscle relaxers and that
they were using K2. The referral further alleged that Father had thrown Paternal
Grandmother on the bed and had broken things because he had run out of
Paternal Grandmother’s pills. The referral also alleged that Father and Mother
were using Paternal Grandmother for her money and that she could not meet her
own needs as a result. An Adult Protective Services (APS) case was opened for
Paternal Grandmother, who was living at the Cowboy Inn. The APS caseworker
noted that Paternal Grandmother, Father, and Mother did not seem credible, and
she was concerned about their drug-seeking behavior. Father and Mother tested
negative for drugs. The family agreed to not abuse medication and to continue to
work services with FBSS. Both allegations—for neglectful supervision of Amy by
Father and Mother and for physical abuse of Amy by Father—were ruled out, and
the services with FBSS were not completed because the Department could not
locate the family.
4
The record does not specify what the alleged physical abuse consisted of.
3. September 2011
The September 2011 referral alleged that Father, Mother, Amy, and
Paternal Grandmother were staying at the Cowboy Inn and that all three adults
were smoking K2 in front of Amy.5 There were also allegations that the adults
were using drugs intravenously and were using prescription medications. The
Department was concerned because there was no way the adults could take
care of seven-month-old Amy’s needs while they were under the influence. 6
Escajeda testified that she made contact with Father and Mother at the motel.
Escajeda had some concerns about the motel room, but the family was in the
process of packing and leaving the room because the police had done a welfare
check the night before and had told them that it was a dangerous place for them
to be with a child. The parents did not tell Escajeda where they were relocating,
which concerned Escajeda because a case had been opened for services from
FBSS and the Department needed to be able to locate the family to offer them
the services from FBSS and to check on Amy’s welfare.
While at the motel, both parents agreed to do an oral swab drug test.
Father and Mother tested positive for opiates but produced a prescription to
explain their positive drug tests. Father and Mother denied using any drugs,
5
Gina Escajeda, a current caseworker and former investigator with CPS,
testified that K2 was a legal drug in 2011.
6
Escajeda testified that “any time anybody’s intoxicated from any
substance, they’re not able to provide adequate care for their children.”
including synthetic marijuana, and said that drugs were not a problem for them.
Escajeda testified that she was very concerned about Paternal Grandmother,
who appeared to be under the influence and was not able to give a drug test.
Escajeda testified that there were also concerns that Paternal Grandmother was
in an abusive relationship.
The safety plan stated that Paternal Grandmother could not be a caregiver
for Amy and could not be left unsupervised with Amy, that the family would
maintain contact with CPS and let CPS know their address, and that the family
should contact the police if Paternal Grandmother’s allegedly abusive husband
had contact with them or was trying to contact them. Escajeda testified that
Father and Mother said that they were afraid to call their FBSS caseworker
because they did not have a place to stay and that they could not attend classes
because they did not have transportation.
4. December 6, 2011
On December 6, 2011, the Department received a referral for neglectful
supervision of Amy by Mother, Paternal Grandmother, and Father. The referral
alleged that Father, Mother, and Paternal Grandmother were living in a motel and
were all using drugs and that Father and Mother were smoking K2, “ICE,” and
opiates in front of Amy. The Department was unable to locate the family, and the
case was not able to be completed.
5. December 22, 2011
Keriann Wellinghof, an investigator with CPS, testified that she had a case
involving Father and Mother on December 22, 2011. The referral alleged that
Father, Mother, and Paternal Grandmother were living in a motel together and
that they were using drugs, including K2, methamphetamine, Soma,
hydrocodone, and Klonopin. A night-response worker attempted to contact the
family on December 22 and 23, and Wellinghof’s supervisor contacted Father by
phone on December 23. Wellinghof called Mother on December 27 and 28 and
attempted a visit on December 30 at their last known address but was unable to
make contact with the family. Wellinghof testified that when CPS is unable to
locate a family, CPS is unable to verify that the children are safe. Wellinghof
said, “We don’t know what’s going on, what household they’re living in, what
they’re exposed to when we can’t meet with them face-to-face.” Wellinghof
verified that Amy was current on her shots, ruled out the allegations, and closed
the case.
6. January 2012
In January 2012, the Department re-entered the December 6, 2011 case
due to the unable-to-complete disposition. The affidavit states that the family
made contact with the worker at a CPS office and reported that Paternal
Grandmother is a heavy IV drug user and “shoots up” drugs with her husband.
Father and Mother believed that Paternal Grandmother and her husband had
called in the December 6 referral in retaliation for Father and Mother’s turning in
Paternal Grandmother for food stamp fraud. The Department was unable to
locate the family after this conversation.
7. July 2012
In July 2012, the Department received a referral for neglectful supervision
of Amy by Father and Mother. The referral alleged that Father was using
synthetic marijuana, which could impair his judgment and his ability to adequately
care for Amy. The referral stated that it was unknown how Amy had been
affected by Father’s use of synthetic marijuana and that it was unknown whether
Mother was willing to protect or capable of protecting Amy. The referral stated
that the police found Father in possession of K2 and rolling papers and that
Mother was pregnant and smoking cigarettes. The Department attempted to
locate the family, but they had left the Union Gospel Mission where they had
tested negative on an oral drug screen in May 2012. A special investigator was
assigned to the case to assist in locating the family, but the family was not
located. The allegations were ruled “unable to complete.”
8. April 5, 2013
Nine months later on April 5, 2013,7 the Department received a referral for
neglectful supervision and physical neglect of Amy and Jack by Father and
Mother. The referral alleged that the family had been living out of a van parked
7
Mother gave birth to Jack on September 1, 2012.
in a car wash next to a convenience store.8 The referral further alleged that
Father and Mother were using drugs and that Father was heard yelling at Amy. It
was noted that the children’s demeanor appeared sickly. Escajeda attempted to
find the family but was unable to do so. Escajeda utilized a special investigator
with CPS, who located the family on April 15 and left his business card with
them.
9. April 16, 2013
On April 16, 2013, the Department received a second intake that the family
was living out of a vehicle and had been living like that for a couple of weeks.
On April 18, Escajeda made contact with the family at the same residence
where the special investigator had found them, which was a residence belonging
to a friend of the family. Escajeda told Father and Mother that their
homelessness was a concern and asked if they would consider FBSS.9
Escajeda told Father and Mother that they could not stay in their car that evening
because it was going to be really cold that night, and their friend allowed them to
stay that night. Father and Mother signed the safety plan stating that they would
seek homeless shelter assistance, that the children would not sleep outdoors that
evening, and that they would continue to meet the children’s basic needs and
8
Escajeda testified that nothing had changed from September 2011 to April
2013; the family was still struggling and lacked stability.
9
Escajeda agreed that it is not against the law to be homeless or to live in
hotels.
cooperate with CPS. Father and Mother failed to maintain contact with CPS.
The Department offered the family services through FBSS, but the family did not
cooperate with the assessment.
10. May 1, 2013
On May 1, 2013, Escajeda received a phone call from a police officer
stating that Father had been arrested for theft.
11. May 8, 2013
On May 8, 2013, Escajeda went by Father and Mother’s friend’s house and
saw Father and Mother walking down the road. Father and Mother informed
Escajeda that they were on the way to visit their friends; that they had sold their
car; that Mother had stayed with her father when Father went to jail the previous
week on the theft charge; that they had been staying at the Greenway Inn for the
previous couple of days; and that a friend had offered them a place to stay for a
couple of days but that Father did not know the address. Escajeda told Father
and Mother to utilize Union Gospel Mission and some of the other shelters;
Escajeda said that the family was already aware of homeless resources.
Escajeda told Father and Mother that FBSS would be contacting them to perform
an assessment and to discuss services. Mother provided Escajeda with their
phone number, and Father and Mother signed medical release forms for
Escajeda to obtain the children’s medical records. Escajeda located medical
records for Amy but not for Jack, which was a concern because there was no
record of his having well-baby checkups. When Escajeda sent the release to the
pediatrician, the only information that Escajeda received was that a new patient
appointment had been scheduled for Jack, but the parents were a no-show.
Thus, Jack had not received any immunizations since birth because of missed
appointments.
The FBSS worker told Escajeda that she had attempted to contact Father
and Mother to start the assessment but had not received any return calls.
Escajeda testified that the Department’s concerns regarding the children were
that the family was homeless and was not utilizing community resources that had
been extended to them. Escajeda said that Father had reported in the past that
he had been diagnosed with bipolar disorder but was not on medication, and
Escajeda testified that was a concern because he had young children to care for.
Escajeda testified that the case was disposed of as unable to determine for
physical neglect and unable to determine for neglectful supervision for both
children by both parents.
12. June 13, 2013
CPS utilized the special investigator a second time to locate the family,
and the special investigator located Father in jail in Tarrant County on June 13.
Father was released the following day.
13. July 3, 2013
On July 3, 2013, law enforcement notified CPS that they needed
assistance because the family was panhandling on Jacksboro Highway.
Escajeda met with Father and Mother, who informed her that they had been
staying in a hotel that Paternal Grandmother had been paying for but that they
had checked out of the hotel. The family had some clothing, “infant care,”
diapers, snacks, and toys. Escajeda allowed the children to cool off in her pickup
because they appeared to be hot but were not malnourished or dehydrated.
Father and Mother agreed to take drug tests and tested negative for all
substances.10
Escajeda told Father and Mother that they needed to find a possible
relative or kinship placement or go to a shelter or that foster care would become
a possibility. Father and Mother had money for the bus and said that they would
go to a shelter. Escajeda watched the family get on the bus; it was her
understanding that they went to the Salvation Army but did not stay there for an
extended period of time.
14. July 8, 2013
On July 8, 2013, police observed the family living behind a store, and the
children were taken to the hospital for bug bites and for a diaper rash. Father
and Mother told the hospital that they were planning to move to Arkansas on July
11, 2013. The affidavit noted that court-ordered services could not be pursued
because the family did not have a stable residence at which to serve paperwork.
10
Escajeda testified that Father and Mother were not drug tested more
frequently because CPS had trouble locating Father and Mother.
C. The Referral that Led to the Removal of the Children
On July 22, 2013, the Department received a referral for neglectful
supervision and physical neglect of Amy and Jack by Father and Mother. The
referral alleged the following: Father, Mother, Amy, Jack, and Paternal
Grandmother had been living outside of a “convenience store/car wash” for at
least two months; the family slept inside the car wash; the two-year-old child
went inside the convenience store to ask for food and told a passerby that she
had eaten only gummy bears for the previous two days; Father yanked the child
by the arm when she said this and stated, “[D]on’t tell anyone that you don’t eat
all the time”; the parents were intoxicated at the grocery store on July 22; the
younger child was never seen with any clothing on other than diapers; the older
child had been wearing the same dress for two months; the children did not have
shoes on; the older child was often rinsed off with a hose because she was dirty;
the parents were often seen smoking cigarettes and holding “tall boys” of beer in
their hands and were often intoxicated; Father had asked patrons of the store for
“dope” on several occasions; and the two-year-old child slept in a stroller, and the
eight-month-old child slept in a car seat.11
11
Also attached to the petition for protection are handwritten affidavits from
two witnesses describing what they had seen at the car wash and convenience
store. One of the affiants stated, “These children live on the cement at this little
store every nigh[t] and all day during the heat.” Both affiants stated that Amy had
asked them for food.
On the afternoon of July 23, 2013, Natassia Howlett, an investigator with
the Department, went to the car wash near River Oaks where the family was
reported to be living.12 Howlett walked up to Mother and Father, and they
confirmed their identities. Howlett discussed the allegations from the referral with
Father and Mother. Father said that they had been homeless for over a year and
that it could have been two or three years since they had last maintained a
permanent residence. Father and Mother said that they planned to get a house
at the beginning of August and had not done so sooner because they were
waiting on Paternal Grandmother to receive a disability payment. Father and
Mother said that the children always had enough food, that they receive food
stamps, and that they bought food from inside the gas station or at restaurants
like McDonald’s. Father and Mother denied that the children sleep in the car
wash in their car seats. Father and Mother, however, admitted that the children
had slept with them one night on a pallet of blankets behind a bar down the street
from the car wash but said that the children were usually with their grandmother
because it was so hot and because Father and Mother felt that people would
report them due to their lifestyle.13
12
Howlett was not sure whether the car wash was in working order or had
been abandoned; there were no cars in the other stalls while she was there.
13
Howlett testified that CPS’s report reflects that Father and Mother had
been living in the car wash with the children for two months, but Father and
Mother said that the children had not been staying at the car wash with them.
Father stated that he had not consumed alcohol in approximately three
years; Father said that he worked at the convenience store and may have been
seen bringing beer outside for a customer. Both Father and Mother denied any
current drug use but admitted prior histories of drug use. Father admitted that
ten years ago he had used methamphetamine for approximately six months;
Mother admitted that she had tried methamphetamine at age sixteen or
seventeen but did not like it and had not used since then; and both Father and
Mother admitted using marijuana three years prior when partying with friends
after Amy was born. Mother’s oral swab tested negative, but Father tested
positive for amphetamines and methamphetamines. Father said that the test
was false14 and then went into the convenience store; when he returned, he said
that he had been fired.
Mother said that she had been diagnosed with depression and anxiety but
was not on medication and did not want to be on medication. Father stated that
he had been diagnosed with bipolar disorder and was not on medication but
wanted to be on medication.
Mother said that Maternal Grandmother had a history of methamphetamine
use; Mother was not sure if Maternal Grandmother was currently clean because
Mother was not around Maternal Grandmother that much. Father said that
14
Howlett testified that Father asked for a hair follicle test or a urinalysis to
be performed; neither of which were approved at that time.
Paternal Grandmother also had a history of methamphetamine use, but he
believed that she had been clean for three or four years.
The children were not present at the car wash. Father and Mother
originally said that the children were safe and that Howlett would not be allowed
to see them. Father and Mother later said that the children were with Maternal
Grandmother at her house near Springtown. Father and Mother called Maternal
Grandmother and asked her to bring the children to the car wash.
The children arrived with Maternal Grandmother and Paternal
Grandmother. The children appeared to be clean but did not have on shoes.
Howlett testified that Amy was allowed to walk around the car wash with no
shoes, which was a concern because the car wash was not clean.
Howlett had concerns when she spoke with the grandmothers. Paternal
Grandmother told Howlett that she had been going back and forth between
Maternal Grandmother’s home and living on the street for the previous couple of
months and that the children had been going back and forth, too. Paternal
Grandmother said that she planned to move to Arkansas in August. Paternal
Grandmother admitted to using methamphetamine within the last year and to
using marijuana within the previous few months. Paternal Grandmother tested
negative for all substances. Paternal Grandmother said that she had been
diagnosed with depression and was taking medication for that, along with pain
medication for back and ankle issues. Maternal Grandmother admitted that she
had three driving-while-intoxicated charges in the past. Maternal Grandmother
said that she had a history of methamphetamine use and had last used a couple
of years prior. Maternal Grandmother tested positive for methamphetamines and
amphetamines. Maternal Grandmother admitted that she had smoked
methamphetamine with her boyfriend a few days prior and that she had used
marijuana the previous night when the children were in her care. Although
Maternal Grandmother failed the drug test, Howlett said that Maternal
Grandmother did not appear to be under the influence while she was speaking
with her.
Howlett’s concerns regarding the welfare of the children were as follows:
“They had very little belongings,[15] no food outside. They were obviously just
sitting in the car wash. And then when I spoke with [Father,] he chose to take an
oral swab. That was concerning when that screened positive for
methamphetamines.” Howlett was also concerned about Amy’s development
because she was not talking much and was not stringing words together.
Moreover, Howlett had learned from police that both Father and Mother had
current warrants for unpaid tickets.
Howlett asked Father and Mother if they had anyone who would be able to
help them, and they said that they did not. Howlett testified that the directive she
received from her program director was to allow the children to stay with
15
Howlett testified that it was possible that the children’s belongings had
gone with them to Maternal Grandmother’s house. Howlett did not look inside
the family’s vehicle to see if the children’s belongings were inside it.
Maternal Grandmother, even though she had recently used drugs, and to pursue
a nonemergency removal the next day.
The removal was granted the following day, and Howlett went to Maternal
Grandmother’s home to pick up the children. Howlett testified that Maternal
Grandmother’s home smelled “very strongly of dog urine and cigarette smoke.
There were things stacked everywhere. Very hard to even walk through the
residence.” Howlett testified that Maternal Grandmother’s home was not
appropriate for children because there were way too many things that could have
fallen on the small children, it smelled unsanitary, and the carpet did not look
good.16 Howlett said that the grandmothers packed up a couple of things for the
children, and then Howlett took the children with her. Amy was two years old,
and Jack was nine months old.
A day or two after the removal, Father called, and Howlett told him that he
and Mother would need to secure a residence and employment or other way to
provide for their children and that they would need to complete services, such as
parenting and drug classes. Father told Howlett that he was willing to work
services.
Howlett attempted to find placements for the children with other family
members, but none of the relatives that Howlett contacted agreed to be a
placement for the children. Instead, Howlett’s conversations with the extended
16
Howlett did not take pictures of Maternal Grandmother’s house.
family raised concerns. When Howlett contacted Maternal Grandfather as a
potential placement, he said that he had some ongoing concerns because the
parents and grandparents were abusing medication, Maternal Grandmother
drank alcohol frequently, and Father and Mother “would always come and go
different places.”
When Howlett contacted Maternal Aunt as a potential placement, she said
that she did not feel like Father and Mother were trying to fix their situation, that
they put drugs before their children, that they had a history of marijuana use, that
Maternal Grandmother had a history of drug use and that she could be currently
using, and that she (Maternal Aunt) had heard rumors that Paternal Grandmother
had a history of recent drug use. Maternal Aunt admitted that she had used
drugs within the previous nine to twelve months.
When Howlett contacted Paternal Grandfather as a potential placement,
he said that he had not had contact with Father in ten years; that he had never
met Amy or Jack and did not know how many children there were; that Father
had ongoing issues with the law, had dealt with drug issues his whole life, and
had been placed in psychiatric hospitals as a child, but nothing had worked; and
that Paternal Grandmother had ongoing issues with methamphetamine, cocaine,
marijuana, and medication and that was the reason for his divorce from her.
Due to the lack of a relative placement, the Department placed the children
together in a foster home.
D. Trial Testimony
1. Mother’s Testimony17
Prior to Amy’s birth, Father and Mother lived in an apartment and owned a
car. Mother testified that she and Father both lost their jobs, then their vehicle,
and then their home and that “it’s been a battle ever since.” Mother testified that
they had been living on the streets since Amy was about eight or nine months old
and that Amy was three years old at the time of the termination trial.
Mother testified regarding where they had stayed during their
homelessness. Mother said that they had stayed at Union Gospel Mission from
2011 to 2012, which included the time while she was pregnant with Jack. After
Mother gave birth to Jack, they went as a family to the Salvation Army and were
told that they could not stay there because Jack was too little. Mother testified
that the family had been living in River Oaks in their vehicle or in a motel since
2012. Mother explained that they had camped out with the children for one night
behind a bar that had been condemned; that they had food, drinks, clothing,
blankets, and diapers; and that they had the ability to clean the children and
bathe them at a friend’s house. Mother said that a friend had kept the children
one night.
Mother testified that she had taken Jack to the doctor, that his primary care
doctor is at John Peter Smith Hospital, and that she had also taken him to Dr.
17
Father appeared but did not testify at trial.
Levy off of Jacksboro Highway. Mother testified that both children had been
seen at Cook Children’s Hospital and that Amy had been seen for her wellness
checkups.18
On July 23, 2013, when Howlett met with Mother and Father at the car
wash,19 the children were with Paternal Grandmother at Maternal Grandmother’s
house. Mother said that the children were not wearing shoes when they arrived
at the car wash on July 23 because Maternal Grandmother said that the children
had just awakened from their naps; their shoes were in the car. Mother said that
the allegations from family members that the children were dirty were not true.
Mother said that she does not talk to her family and that Father talks only to
Paternal Grandmother and his sister.
Mother did not know on July 23, 2013, that Maternal Grandmother had
recently smoked methamphetamine when Mother allowed her access to the
children, but Mother was aware that Maternal Grandmother had a history of
abusing methamphetamine. Mother testified that it concerned her when she
heard that Maternal Grandmother had recently used methamphetamine, but she
18
The “Child’s Service Plan” for Jack noted, “Parents also indicate that he
has not had any immunizations since birth due to missed appointments,” and that
the doctor who saw him a week after the removal noted that he was slightly
underweight.
19
Mother testified that she did not stay at the Presbyterian Night Shelter in
July 2013 because they did not allow children. Mother testified that she
understood that it would be a concern for her children to be outside for an entire
day in the summer heat because of the possibility of dehydration. Mother
explained that the shelter would put them out all day long, too.
testified that the children were also with Paternal Grandmother and Maternal
Aunt. Mother did not know that Maternal Grandmother had used marijuana while
the children were in her care.
Mother testified that she had received the service plan on July 24, 2013,
and that her caseworker at that time went over it with her. Mother testified that
she was familiar with her service plan and that it required her to attend parenting
classes, counseling, and domestic violence classes and to complete a psychiatric
evaluation and a drug evaluation.20 Mother testified that her current caseworker
had explained to her the importance of completing her service plan.
Mother testified that after the children were removed, she became
pregnant and miscarried. Mother said that the miscarriage set her back on her
compliance with her service plan.
Mother testified that she had not completed parenting classes. Mother
initially blamed her failure to complete her parenting classes on not having
transportation. Mother then said that she had only one parenting class left to
take but that she was required to start over with her classes due to being tardy to
a class. She explained that her visits were from 9 to 10 a.m.; that the parenting
class started at 10 a.m.; and that because she was one minute late to a
20
The record reveals that the service plan also required Father and Mother
to maintain steady and legal employment and to provide proof of employment via
paycheck stubs by the fifth of every month; to maintain safe, stable, and
appropriate housing; and to refrain from involvement in criminal activities and
illegal acts.
parenting class, they required her to start all over. On cross-examination, Mother
admitted that her visitation was changed to enable her to arrive on time for her
parenting classes and that she knew the parenting class’s attendance policy from
the beginning. Mother later clarified that she had transportation to get to her
parenting classes.
Mother testified that she had not completed counseling. Mother said that
she had only three sessions of individual counseling left but that she had missed
one session due to her health and was required to start all over, so she lost three
months’ worth of classes. Mother said that her caseworker told her to talk to her
counselor about whether she could pick up where she had left off instead of
starting over.
Mother testified that she was required to attend four domestic violence
classes but that she did not understand why she needed to attend domestic
violence classes because there had never been abuse between her and Father
and she did not even know where to go for the classes. Mother later admitted
that her service plan dated September 2013 had specified that she was to attend
domestic violence classes at Ben Avenue and that her service plan had not been
changed. Mother said that some of her caseworkers had told her that she
needed to go to the domestic violence classes and that some of her caseworkers
had told her that she did not need to go. Mother admitted that she chose to
ignore the caseworkers who had recommended that she attend the domestic
violence classes even though she knew it might be safer for her and for her
children.
Mother testified that she had completed the psychiatric evaluation and that
it was on file at JPS Hospital. During the psychiatric evaluation, Mother was
diagnosed with depression. She was not taking medication for depression at the
time of the termination trial because she felt “a lot better being [herself], not on
medication.” Mother testified that she had previously taken the depression
medication and that it made her sleepy. Mother agreed that she was making a
decision as to what she wanted to do and what was safest for her and her
children. But Mother admitted that it would be in her best interest to follow the
doctor’s recommendations.
Mother testified that she had never used methamphetamine, that she had
“never had any drug use,” and that drugs and alcohol have never been an issue
for her. Mother testified that she had taken “[q]uite a few” drug tests for CPS and
that she had “never been dirty for any of them.” Mother said that her last drug
test was a hair follicle test and that it came back negative. Mother agreed that
she had tested positive once for opiates but explained that she had a
prescription. Mother testified that she did not complete the drug evaluation;
Mother had talked to the people at Recovery Resources, and her understanding
of their requirements to attend their classes was that a person had used drugs
within the previous thirty days. Mother said that she had asked but that no one
had been able to answer her about why she was required to complete a drug and
alcohol assessment after testing negative for drugs on all of her drug screens.
Mother agreed that her service plan required her not to engage in any
criminal activity. Mother admitted that she had been arrested during the course
of the case21 and that she had told Gale Davis.22
Mother testified that neither she nor Father has a driver’s license. Mother
testified that they had received bus passes twice during the case.
Mother has a high school diploma but no college education. When asked
whether she was working, Mother said, “No. Well, Pacesetter’s Temporary
Service.” Mother said that she makes $50 per day cleaning different event
venues through Pacesetter. Mother said that Father was also working for
Pacesetter and that most of the jobs are for men. Mother testified that she and
Father had provided check stubs to their previous caseworker. Mother testified
that the children were on food stamps, WIC, and Medicaid but that she no longer
received that assistance. Mother said that she had sought assistance from
Maternal Grandfather and his wife but that they had not provided her with any
assistance.
21
An indictment and the police report for Mother’s offense of forgery of a
check from February 27, 2014, were offered but not admitted into evidence.
22
Gale Davis was one of the caseworkers who worked on this case; Mother
said that they had five caseworkers and two investigators during the case.
Mother later explained that she had been involved in seven CPS cases since
September 2011.
Mother testified that her service plan required her to attend scheduled
visitations and that she had attended the visits. Mother said that when she went
to the visits, the children wanted to come home. Mother said that at the last visit,
Amy had squeezed Father and had said that she was scared, that she did not
want to leave, and that she wanted Father with her. Mother testified that Amy
said “all the time” that she wanted to come home and that Jack had recently
clenched Mother and said, “Mommy, go home.” Mother said that she and Father
had taken food and activities to every visit and that they had taken clothing and
shoes for the children.
Mother said that the children had been sick most of the time since they had
been in foster care and that Jack had just gotten over hand, foot, and mouth
disease.23 Mother said that Jack also had a “big old bruise on his arm” at the last
visit and that every time she asked questions, no one knew what had happened
but blamed day care.
Mother testified that Escajeda and CPS did not give her any help with
finding housing. Mother said that she had called Fort Worth Housing but was
told that there was a four-year waiting list. Mother said that she had not been
able to sign a lease or to find an apartment; at the time of the termination trial,
she still needed to stay in a shelter or with family. Mother testified that she
needed a little bit more time to complete her service plan.
23
The children’s sicknesses were investigated and attributed to being
exposed to a lot of other children at daycare.
Mother testified that Maternal Grandmother’s home has two bedrooms and
two bathrooms. Mother testified that there were three dogs at Maternal
Grandmother’s home, that the smell of urine in the home had not been
addressed, but that she did not think that it smelled like urine in Maternal
Grandmother’s home. Mother said that Maternal Grandmother’s home had been
cleaned up to remove the clutter.
Mother said that she and Father had planned to move to Arkansas on July
26, 2013. Mother testified, “We had everything going for us. We had a home to
go to. My husband had a job. But y’all took the children two days before we had
a chance to leave, and I was not going to go somewhere where my children are
not.” She said that Paternal Grandmother had moved to Arkansas at the time of
the termination trial.
Mother testified that at the time of the termination trial she and Father were
residing at the Presbyterian Night Shelter and the Salvation Army and that they
stayed with Maternal Grandmother in Springtown on Tuesday nights because
Maternal Grandmother provided transportation to them, taking them to their visits
on Wednesdays. After the visits, they stayed in Haltom City close to Pacesetter
so that they could get back and forth to work. Mother explained that it was easier
for them to stay closer to Haltom City so that they could get up and be at
Pacesetter as close to 5 a.m. as possible; she said the sooner they arrived, the
better chance they had to get work.
Mother testified that if the children were returned to her, she would take
them to the Presbyterian Night Shelter24 or to Union Gospel Mission. Mother had
spoken with Presbyterian Night Shelter about arrangements for bringing the
children there. Mother said that Union Gospel Mission had helped with daycare,
but she was not sure about Presbyterian Night Shelter. Mother testified that as
soon as the case was over, she and Father wanted to move with the children to
Arkansas or Washington, where Paternal Grandfather lives. Mother testified that
Father had a job in Washington and that she planned to obtain a job.
2. Mother’s Counselor’s Testimony
Vanessa Moreno-Luper, who conducted individual counseling with Mother
at Merit Family Services, testified that she met with Mother seven times.
Moreno-Luper was authorized to see Mother twelve times from August 19, 2013
to December 31, 2013 and another twelve times from January 1, 2014 to March
31, 2014.
Moreno-Luper completed an assessment with Mother, who reported that
she began using cannabis at age fourteen, that she began using
methamphetamine at age sixteen but did not let it control her because she had
seen what it had done to other people, that she had used alcohol on occasion
since age nineteen, and that she had been drug free for four to five years.
24
Mother testified that she could take her children to the Presbyterian Night
Shelter after the trial because they now have a facility for families.
Mother’s treatment plan included looking at her substance abuse history,
communication/relationship issues, and parenting issues.
Moreno-Luper testified that “[p]er the initial presenting problem, I have -- it
was determined that client’s bio mom, spouse, and mother-in-law were positive
for illegal substances.” It concerned Moreno-Luper that Mother had continued to
use Paternal Grandmother and Maternal Grandmother as support if they had a
history of drug abuse.
Moreno-Luper testified that Mother had reported that she and Father had
been homeless for over a year due to job loss and that the children spent most of
their time living with Paternal Grandmother, where Mother also spent most of her
time. Mother admitted that the children were also homeless during this time, and
Moreno-Luper discussed with Mother the need to establish and maintain safe,
stable housing; employment; and financial stability. Moreno-Luper
recommended that Mother complete everything per her service plan.
Mother did not show up for her counseling session on January 29, 2014.
On February 26, 2014, Mother told Moreno-Luper that she had not had
anything to eat. Moreno-Luper gave Mother information about local area shelters
and food banks and urged Mother to speak to her caseworker about obtaining
resources. Moreno-Luper made a phone call and told Mother that as soon as
she arrived at the Salvation Army, she would receive a meal.
Mother had a counseling session scheduled for March 12, 2014, but she
did not show. Moreno-Luper testified that Mother had not made contact with her
since February 26, 2014, and that she had not discharged Mother from
counseling.
When asked whether the children should go home with Mother, Moreno-
Luper responded, “Well, due to her instability, where would the children go?”
Moreno-Luper based her response on Mother’s living situation at the time of their
last session on February 26, 2014; Moreno-Luper was not aware of Mother’s
living arrangements at the time of the termination on June 9, 2014.
3. Conservatorship Worker’s Testimony
Sherice Hogan, a conservatorship worker with the Department, testified
that she was assigned to the case in May 2014, which was a month before the
termination trial. Hogan observed the parent-child visits on May 7 and May 14
and did not hear the children express a desire to go home but said that she was
not always present to see the entire visit. Hogan testified that the parents were
engaged with the children during the visits she had observed. Hogan could not
recall whether one or both of the children cried when they left the visit, but she
noted that the children hugged Father and Mother.
On May 21, Hogan went over Father’s and Mother’s service plans with
them and told them that their service authorizations had been renewed, that they
could begin services again, and that appointments could be made. 25 Hogan
25
Hogan explained that the authorization for Father’s and Mother’s services
had reached an end point after they had stopped working their services. When
Hogan met with them, she reiterated that the services were still available to them.
asked Father and Mother where they were living, and they said that they were
alternating between shelters and the street. Hogan asked them about
employment and requested pay stub copies, but she did not receive any the
following time that she saw them.26
On June 4, Hogan again requested pay stub copies and inquired about
Father’s and Mother’s living arrangements; they said that they were alternating
between shelters and Maternal Grandmother’s home.27 Hogan discussed the
Merit counseling with Father and Mother because they were concerned about
having to start over. Hogan advised them to contact the provider. Hogan said
that Mother asked her about having to attend domestic violence classes; Hogan
told Mother that she had signed a copy of her service plan and that she should
talk to her attorney and the provider.
Hogan testified that Father and Mother had not completed a drug and
alcohol assessment with Recovery Resource; they told Hogan that they did not
need to complete the assessment because they had not recently had a positive
drug test and that the agency would therefore not treat them. Hogan explained
that a drug and alcohol assessment would evaluate whether Father and Mother
needed services regarding drug treatment and that the treatment could range
26
Hogan testified that the CPS record included five pay stubs—four from
Father and one from Mother. The last pay stub for Father was dated March 25,
2014, and the last pay stub for Mother was dated April 3, 2014.
27
Hogan testified that she had not had the opportunity to visit Maternal
Grandmother’s home.
from classes about staying sober to inpatient treatment. Hogan testified that she
had not given Father and Mother any drug tests because when Hogan took over
the case, the parents had recently been tested for drugs and had tested
negative.
Hogan testified that Father and Mother had not completed the parenting
classes.
Hogan testified that the Department was concerned about the parents’
ability to provide shelter because there was no evidence of stable housing that
would last. Hogan testified that the housing instability posed a danger to the
children because they were two and three years old and were unable to protect
themselves and unable to care for themselves.28
Hogan testified that she had met with the children twice and that they
appeared to be doing very well in their foster placement; they were happy and
had adjusted.
4. Ad Litem’s Testimony
The children’s ad litem testified that she had visited the children on a
number of occasions in their foster home and had observed a visit. The ad litem
did not see that the children were bonded with the parents during the visit. The
ad litem explained that the children interacted with Father and Mother, but the ad
28
The family service plan dated August 6, 2013, noted that “[t]he family
does not have a stable home and often sleeps outside. The children are
exposed to unknown persons while living in an uncontrolled environment.”
litem did not see any evidence of true bonding. The ad litem did not see the
children crying when they left the visit.
The ad litem said that the children were doing “great” in their foster home.
During the ad litem’s visits to the foster home, she noted that both children were
happy and that Amy laughed frequently. The ad litem testified that Amy’s speech
had improved “tremendously.”
The ad litem recommended that the children not be returned to Father and
Mother. The ad litem pointed out that neither parent has a driver’s license and
that they were still living on the streets off and on and had not secured a
permanent place to live since Jack was born. The ad litem said that there was
no evidence that the parents’ plan to move to Arkansas with the children would
be a better situation. The ad litem testified that there were also issues with illegal
drugs and that she was not sure whether Mother had abused hydrocodone off
and on.
5. Other Evidence in the Record29
The record contains a report from the CASA volunteer. During the home
visits, Amy was happy, outgoing, and confident. Amy referred to her foster
parents as “Mama” and “Daddy” and was affectionate with both. The CASA
volunteer noted that Amy’s verbal skills had improved since her first meeting with
29
In a bench trial, we may “presume the trial court took judicial notice of its
record without any request being made and without any announcement that it
has done so.” In re K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.]
2013, pet. denied).
Amy in December 2013; the foster parents were concerned that Amy was behind
for her age and had worked with her to improve her speech and communication
skills. The CASA volunteer noted that Jack was attached to his foster parents
and seemed secure and happy in the foster home. He had been diagnosed with
asthma and had tubes placed in his ears but was doing well. Jack had gained
weight and seemed well adjusted. He enjoyed playing outside and objected
loudly when pulled away to go inside.
There were no other children in the foster home. The foster parents hoped
to adopt Amy and Jack and had relatives who were supportive and who were
engaged in the children’s lives.
The CASA volunteer’s report stated that Mother appeared to love and miss
her children. The CASA volunteer had observed a supervised visit and saw that
Mother was engaged with both children and eager to parent them, taking Amy to
the restroom and changing Jack’s diaper. The CASA volunteer noted that
Mother and the children were physically affectionate. Mother always brought an
abundance of food to the visits, though the CASA volunteer noticed that Mother
was exceptionally thin and frail looking. The children were happy during the
visits, but there was no crying or drama when it was time for them to leave.
The CASA volunteer’s report noted that Father had also been present at
the visits but often appeared sleepy. Father played with each child when they
approached him, but he was less engaged than Mother. Father had a criminal
case pending, but Father’s attorney did not give permission for the CASA
volunteer to speak to him. In January 2014, Father shared that he had a job but
that the owner could not pay him.
6. Recommendations
The Department requested that the trial court terminate Father’s and
Mother’s parental rights to the children because Father and Mother had failed to
acknowledge the circumstances that led to the children’s removal and had not
engaged in services to address those circumstances. Hogan stated, “All the
circumstances that were present at the beginning of the case are still present, all
the concerns from the investigation.” Hogan testified that she had considered
what was in Amy’s and Jack’s best interest in making the decision to terminate,
including the children’s need for stability, food, and resources that would help
them develop correctly.
The ad litem recommended the termination of Father’s and Mother’s
parental rights.
The CASA volunteer recommended in her report that it was in the best
interest of the children for the trial court to terminate Father’s and Mother’s
parental rights to both children, for the trial court to appoint the Department as
permanent managing conservator of both children, and for the children to
continue to reside in their foster home pending adoption.
Mother asked the trial court not to terminate her parental rights to the
children because “[t]he children need us just as much as we need them, and
we’ve tried to do everything we can. We’re trying everything we can.”
E. Trial Court’s Disposition
After hearing the testimony set forth above, the trial court found by clear
and convincing evidence that Father and Mother had knowingly placed or had
knowingly allowed the children to remain in conditions or surroundings that had
endangered the children’s emotional or physical well-being, that Father and
Mother had engaged in conduct or had knowingly placed the children with
persons who had engaged in conduct that had endangered the children’s
emotional or physical well-being, and that termination of the parent-child
relationship between Father and the children and between Mother and the
children was in the children’s best interest. The trial court thereafter ordered the
termination of the parent-child relationship between Father and the children and
between Mother and the children. Father and Mother each perfected an appeal
from the trial court’s termination order.
III. BURDEN OF PROOF AND STANDARDS OF REVIEW
In a termination case, the State seeks not just to limit parental rights but to
erase them permanently—to divest the parent and child of all legal rights,
privileges, duties, and powers normally existing between them, except the child’s
right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,
685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever
permanently the relationship between a parent and a child, it must first observe
fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)
(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings and strictly construe
involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d
796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a); E.N.C., 384 S.W.3d at 802.
“[C]onjecture is not enough.” E.N.C., 384 S.W.3d at 810. Due process demands
this heightened standard because “[a] parental rights termination proceeding
encumbers a value ‘far more precious than any property right.’” E.R., 385
S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397); In re
J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802.
Evidence is clear and convincing if it “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 (West 2014); E.N.C., 384 S.W.3d
at 802.
For a trial court to terminate a parent-child relationship, the Department
must establish by clear and convincing evidence that the parent’s actions satisfy
one ground listed in family code section 161.001(1) and that termination is in the
best interest of the child. Tex. Fam. Code Ann. § 161.001; E.N.C., 384 S.W.3d
at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
established; termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—
Fort Worth 2012, no pet.).
A. Legal Sufficiency
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the challenged ground for
termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). In this
case, Father and Mother challenge the endangering-environment and
endangering-conduct findings. See Tex. Fam. Code Ann. § 161.001(1)(D), (E).
We review all the evidence in the light most favorable to the finding and
judgment. J.P.B., 180 S.W.3d at 573. We resolve any disputed facts in favor of
the finding if a reasonable factfinder could have done so. Id. We disregard all
evidence that a reasonable factfinder could have disbelieved. Id. We consider
undisputed evidence even if it is contrary to the finding. Id. That is, we consider
evidence favorable to termination if a reasonable factfinder could, and we
disregard contrary evidence unless a reasonable factfinder could not. See id. “A
lack of evidence does not constitute clear and convincing evidence.” E.N.C., 384
S.W.3d at 808.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses because that is the factfinder’s province. J.P.B.,
180 S.W.3d at 573, 574. And even when credibility issues appear in the
appellate record, we defer to the factfinder’s determinations as long as they are
not unreasonable. Id. at 573.
B. Factual Sufficiency
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the verdict with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that the
parent violated section 161.001(1)(D) or (E) and that termination of the parent-
child relationship would be in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001(1)(D)–(E), (2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of
the entire record, the disputed evidence that a reasonable factfinder could not
have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.
IV. SUFFICIENCY OF EVIDENCE TO SUPPORT ENDANGERING-ENVIRONMENT AND
ENDANGERING-CONDUCT FINDINGS
In their first and second issues, both Father and Mother argue that the
evidence is legally and factually insufficient to support the section 161.001(1)(D)
and (E) endangerment findings.
A. Law on Endangerment
“Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727 at
533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
Under section 161.001(1)(D), it is necessary to examine the evidence related to
the environment of the child to determine if the environment was the source of
the endangerment to the child’s physical or emotional well-being. J.T.G., 121
S.W.3d at 125. When termination of parental rights is based on subsection (D),
the endangerment analysis focuses on the evidence of the child’s physical
environment, but the environment produced by the conduct of the parents bears
on the determination of whether the child’s surroundings threaten his well-being.
Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010,
pet. denied). A parent’s decision to leave a child in the care of a known drug
user is relevant to the predicate acts or omissions in subsection (D). In re K.C.F.,
No. 01-13-01078-CV, 2014 WL 2538624, at *12 (Tex. App.—Houston [1st Dist.]
June 5, 2014, no pet.) (mem. op.).
Under section 161.001(1)(E), the relevant inquiry is whether evidence
exists that the endangerment of the child’s physical well-being was the direct
result of the parent’s conduct, including acts, omissions, or failures to act. See
J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). It is
not necessary, however, that the parent’s conduct be directed at the child or that
the child actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at
125. The specific danger to the child’s well-being may be inferred from parental
misconduct standing alone, and to determine whether termination is necessary,
courts may look to parental conduct both before and after the child’s birth. Boyd,
727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth
2004, pet. denied).
Evidence of illegal drug use or alcohol abuse by a parent is often cited as
conduct that will support an affirmative finding that the parent has engaged in a
course of conduct that has the effect of endangering the child. In re S.N., 272
S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.).
Even though imprisonment standing alone does not constitute a continuing
course of conduct that endangers the physical or emotional well-being of a child,
it is a factor that we may properly consider on the issue of endangerment.
E.N.C., 384 S.W.3d at 805; Boyd, 727 S.W.2d at 533–34; In re M.R., 243 S.W.3d
807, 819 (Tex. App.—Fort Worth 2007, no pet.). The Department is not required
to show that incarceration was a result of a course of conduct endangering the
child; it must show only that incarceration was part of such a course of conduct.
Boyd, 727 S.W.2d at 533–34; M.R., 243 S.W.3d at 819.
As part of the endangering conduct analysis, a court may consider a
parent’s failure to complete a service plan. See In re R.F., 115 S.W.3d 804, 811
(Tex. App.—Dallas 2003, no pet.). A parent’s ability to provide financially for her
children is also a factor that may be considered under subsection (E). See In re
M.N.G., 147 S.W.3d 521, 538–39 (Tex. App.—Fort Worth 2004, pet. denied).
As a general rule, conduct that subjects a child to a life of uncertainty and
instability endangers the child’s physical and emotional well-being. See In re
S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). A
factfinder may infer from past conduct endangering the well-being of the child
that similar conduct will recur if the child is returned to the parent. In re M.M., No.
02-08-00029-CV, 2008 WL 5195353, at *6 (Tex. App.—Fort Worth Dec. 11,
2008, no pet.) (mem. op.). Further, “evidence of improved conduct, especially of
short-duration, does not conclusively negate the probative value of a long history
of drug use and irresponsible choices.” In re J.O.A., 283 S.W.3d 336, 346 (Tex.
2009).
Because the evidence pertaining to subsections 161.001(1)(D) and (E) is
interrelated, we conduct a consolidated review. In re T.N.S., 230 S.W.3d 434,
439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126.
B. Sufficient Evidence of Endangerment to Support Grounds
Challenged by Father
Father argues that his living conditions are a result of poverty and the lack
of sufficient income, which is not a sufficient ground for termination. Father also
argues that there was no evidence that Maternal Grandmother’s home posed a
real threat of injury or harm to the children’s physical or emotional well-being; that
the children’s needs were taken care of—they had food, clothing, and diapers
and had been taken to doctors and wellness visits; and that Father’s one positive
drug test does not establish a conscious course of conduct.
Father relies on Ybarra v. Tex. Dep’t of Human Servs., for the proposition
that poverty or lack of sufficient income is not a sufficient ground for termination.
869 S.W.2d 574, 578–80 (Tex. App.—Corpus Christi 1993, no writ). In Ybarra,
CPS removed the children and sought to terminate the mother’s parental rights
because after the Department had helped move the family into public housing,
(1) the children, who were ages ten to two, were found alone one time while the
mother was working; (2) the children were hungry and dirty; and (3) there were
not enough beds for them. Id. at 577–78. There was no evidence of the
conditions’ effects on the children. Id.
In the present case, the testimony at trial emphasized the children’s young
ages and how the clutter in Maternal Grandmother’s house could have fallen on
the children when they stayed there, but the main emphasis was that the family’s
housing instability—constantly moving from the shelters to the streets to motels
and back to the streets—posed a danger to the children who were unable to
protect themselves and unable to care for themselves. While we agree that
parental rights may not be terminated simply because a parent is poor, the
record here reveals that it was not poverty that led to the termination of Father’s
parental rights but rather Father’s failure to take advantage of homeless
resources. During Father’s homelessness, he refused to stay in shelters for any
length of time and constantly moved the children from place to place, did not
keep in contact with the Department to obtain services, exposed his children to
environments where known drug users were present, and subjected his children
to sleeping on pallets behind an abandoned bar and to panhandling on the
highway in the heat of summer.30 See S.D., 980 S.W.2d at 763 (stating that
conduct that subjects a child to a life of uncertainty and instability endangers the
child’s physical and emotional well-being).
Although the record establishes that the children did not appear to be
malnourished on the occasions when they were seen by the Department’s
investigators and caseworkers, the record also contains evidence of neglect.
The record reveals that Amy had asked patrons of the convenience store for
food; that Amy was allowed to walk around in the car wash without shoes on,
despite that the car wash was not clean; and that Jack had not been taken for
any well-baby checkups to obtain his immunizations. See Doyle v. Tex. Dep’t of
Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000,
30
Within his argument challenging the endangering environment finding,
Father notes that CPS was involved with the family for over two years before it
initiated a nonemergency removal and that CPS left the children with Maternal
Grandmother on July 23, 2013—the night before the removal—despite that she
had tested positive for methamphetamine and amphetamines. To the extent that
Father complains that CPS should have initiated a removal earlier because CPS
was familiar with the family’s living situation, the record is replete with evidence
that the family’s nomadic lifestyle made it difficult for CPS to initiate a court case
because the family could not be found to be served. To the extent that Father
argues that CPS also left the children with a drug user, the statute focuses on the
conduct of the parents, and the record reveals that Maternal Grandmother had
smoked marijuana the previous night, which is when Father had left the children
with her. See generally Tex. Fam. Code Ann. § 161.001. Moreover, there was
no evidence that Maternal Grandmother was under the influence on July 23,
2013, when CPS allowed the children to go home with her and Paternal
Grandmother, who was staying with Maternal Grandmother and had tested
negative for all substances on July 23.
pet. denied) (stating that a parent’s rights can be terminated based on poverty
when there is a showing that the poverty has endangered the child).
With regard to Father’s argument that one positive drug test does not
establish a conscious course of conduct, the “course of conduct” language that
Father uses is not found in the statutory grounds for termination listed in section
161.001(1)(D) or (E). See Tex. Fam. Code Ann. § 161.001(1)(D), (E). Instead,
the “course of conduct” language appears to come from Boyd, which dealt with
whether a parent’s imprisonment could constitute evidence of endangering
conduct under former Texas Family Code section 15.02(1)(E). 727 S.W.2d at
534.31 To the extent that case law requires a “course of conduct,” the factfinder
was free to believe—based on numerous reports of Father’s drug use and
intoxication throughout the three years that the Department was involved with the
family, as well as Father’s own admission that he had smoked marijuana after
Amy was born—that Father had used drugs on more than one occasion. See
S.N., 272 S.W.3d at 52 (stating that evidence of illegal drug use or alcohol abuse
by parent will support endangering-conduct finding). Moreover, Father does not
challenge the evidence that he had frequently left the children with known drug
users; that he had been arrested for theft and burglary in Kansas, that he had
31
The “course of conduct” language appears to have originated in H.W.J. v.
State Department of Public Welfare, 543 S.W.2d 9, 10–11 (Tex. Civ. App.—
Texarkana 1976, no writ). H.W.J., like Boyd, looked at terminating a parent’s
parental rights when the parent’s persistent criminality, which did not directly
endanger the child, led to protracted incarceration. 543 S.W.2d at 10–11.
gone to jail twice in the two months preceding the children’s removal, and that he
had warrants for his arrest at the time the children were removed; and that he
had failed to complete his services—all of which can be considered in an
endangering-environment analysis and an endangering-conduct analysis under
subsections (D) and (E). See E.N.C., 384 S.W.3d at 805; Boyd, 727 S.W.2d at
533–34; K.C.F., 2014 WL 2538624, at *12; R.F., 115 S.W.3d at 811.
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the factfinder is the sole arbiter of the witnesses’
credibility and demeanor, we hold (1) that there is some evidence of endangering
environment on which a reasonable factfinder could have formed a firm belief or
conviction that Father had knowingly placed or had knowingly allowed Amy and
Jack to remain in conditions or surroundings that had endangered Amy’s and
Jack’s emotional or physical well-being and (2) that there is some evidence of
endangering conduct on which a reasonable factfinder could have formed a firm
belief or conviction that Father had engaged in conduct or had knowingly placed
Amy and Jack with persons who had engaged in conduct that had endangered
their physical or emotional well-being. See Tex. Fam. Code Ann.
§ 161.001(1)(D), (E); In re A.H., No. 02-12-00096-CV, 2012 WL 4450490, at *7–8
(Tex. App.—Fort Worth Sept. 27, 2012, no pet.) (mem. op.) (holding evidence
legally sufficient to support trial court’s section 161.001(1)(E) finding because
mother’s drug use, unstable work and housing history, decisions to leave her
children with known drug users, and history of criminal violations and
incarcerations affected her ability to provide a stable living environment for child);
T.N.S., 230 S.W.3d at 439 (holding evidence legally sufficient under subsections
(D) and (E) due to parent’s drug use, incarceration, and instability).
Giving due deference to the factfinder’s endangering-environment and
endangering-conduct findings, without supplanting the factfinder’s judgment with
our own, and after reviewing the entire record, we hold that a factfinder could
reasonably form a firm conviction or belief that Father had knowingly placed or
had knowingly allowed Amy and Jack to remain in conditions or surroundings
that had endangered Amy’s and Jack’s emotional or physical well-being and that
Father had engaged in conduct or had knowingly placed Amy and Jack with
persons who had engaged in conduct that had endangered their physical or
emotional well-being. See A.H., 2012 WL 4450490, at *7–8 (holding evidence
factually sufficient to support trial court’s section 161.001(1)(E) finding because
mother’s drug use, unstable work and housing history, decisions to leave her
children with known drug users, and history of criminal violations and
incarcerations affected her ability to provide a stable living environment for child);
T.N.S., 230 S.W.3d at 439 (holding evidence factually sufficient under
subsections (D) and (E) due to parent’s drug use, incarceration, and instability).
We overrule Father’s first and second issues.
C. Sufficient Evidence of Endangerment to Support Grounds
Challenged by Mother
Mother argues that the evidence presented at trial did not demonstrate any
act or omission on her part that could be reasonably construed as
endangerment. Mother further argues that there was an absence of evidence
regarding the effect of the family’s extended period of homelessness on the
children; that Mother did not know that Maternal Grandmother was using
methamphetamine while caring for the children; that the children appeared to be
healthy and clean and did not appear to be malnourished; and that Mother had
engaged in her services and had made significant progress in completing them.
As discussed above in analyzing the sufficiency of the evidence to support
the endangerment findings related to Father, there was testimony from Howlett
that the family’s housing instability posed a danger to the children who were
unable to protect themselves and unable to care for themselves. The record
here reveals that during Mother’s homelessness, she refused to stay in shelters
for any length of time and constantly moved the children from place to place, did
not keep in contact with the Department to obtain services, exposed her children
to environments where known drug users were present, and subjected her
children to sleeping on pallets behind an abandoned bar and to panhandling on
the highway in the heat of summer. See S.D., 980 S.W.2d at 763 (stating that
conduct that subjects a child to a life of uncertainty and instability endangers the
child’s physical and emotional well-being).
With regard to Mother’s argument that she did not know that Maternal
Grandmother was using methamphetamine while caring for the children,32 the
record reveals that Maternal Grandmother used marijuana while she was caring
for the children on July 21, 2013, and that she had used methamphetamine a few
days prior. Although Mother told Howlett on July 22 that she was not sure
whether Maternal Grandmother was currently clean because she was not around
Maternal Grandmother that much, Father and Mother had told Howlett at the car
wash that the children were usually with Maternal Grandmother—the only one
who had consistent housing—because it was so hot. Moreover, the record
reflects that Mother was aware that Maternal Grandmother had a history of
abusing methamphetamine. See K.C.F., 2014 WL 2538624, at *12 (stating that
a parent’s decision to leave a child in the care of a known drug user is relevant to
the predicate acts or omissions in subsection (D)).
Although the record establishes that the children did not appear to be dirty
or malnourished on the occasions when they were seen by the Department’s
32
Within her argument challenging the endangerment findings, Mother
argues that the CPS investigator “demonstrated that she was not concerned with
the maternal grandmother’s ongoing drug use by allowing the maternal
grandmother to take the children home with her after testing positive for
methamphetamine use.” As explained above, the statute focuses on the conduct
of the parents, and the record reveals that Maternal Grandmother had smoked
marijuana the previous night, which is when Mother had left the children with her.
See generally Tex. Fam. Code Ann. § 161.001. Moreover, there was no
evidence that Maternal Grandmother was under the influence on July 23, 2013,
when CPS allowed the children to go home with her and Paternal Grandmother,
who was staying with Maternal Grandmother and had tested negative for all
substances on July 23.
investigators and caseworkers, the record also contains evidence that the
children were not always properly cared for. The record reveals that Amy had
asked patrons of the convenience store for food; that Amy was allowed to walk
around in the car wash without shoes on, despite that the car wash was not
clean; and that Jack had not been taken for any well-baby checkups to obtain his
immunizations. See Doyle, 16 S.W.3d at 398 (stating that a parent’s rights can
be terminated based on poverty when there is a showing that the poverty has
endangered the child).
With regard to Mother’s argument that she had engaged in her services
and had made significant progress in completing them, the record reveals that
Mother had completed only her psychiatric evaluation and that she had regularly
attended visits. Although she had attended seven counseling sessions, she had
not completed the twelve that she had been allotted and had not been
discharged from counseling. Mother also failed to complete her parenting
classes; to maintain steady and legal employment and to provide proof of
employment via paycheck stubs by the fifth of every month; to maintain safe,
stable, and appropriate housing; and to refrain from involvement in criminal
activities and illegal acts. Mother thus did not successfully complete her
services. See R.F., 115 S.W.3d at 811 (allowing court to consider a parent’s
failure to complete a service plan as part of the endangering conduct analysis).
In addition to the above evidence that Mother left the children with known
drug users in July 2013, the record further demonstrates that Mother had
endangered Amy shortly after she was born by leaving her with known drug
users so that Mother could smoke marijuana with friends and that Mother had
been arrested for theft and forgery and had warrants for unpaid tickets at the time
the children were removed—all of which have been shown to constitute
endangering conduct under subsection (E). See E.N.C., 384 S.W.3d at 805;
Boyd, 727 S.W.2d at 533–34; S.N., 272 S.W.3d at 52.
Viewing all the evidence in the light most favorable to the trial court’s
judgment and recognizing that the factfinder is the sole arbiter of the witnesses’
credibility and demeanor, we hold (1) that there is some evidence of endangering
environment on which a reasonable factfinder could have formed a firm belief or
conviction that Mother had knowingly placed or had knowingly allowed Amy and
Jack to remain in conditions or surroundings that had endangered Amy’s and
Jack’s emotional or physical well-being and (2) that there is some evidence of
endangering conduct on which a reasonable factfinder could have formed a firm
belief or conviction that Mother had engaged in conduct or had knowingly placed
Amy and Jack with persons who had engaged in conduct that had endangered
their physical or emotional well-being. See Tex. Fam. Code Ann.
§ 161.001(1)(D), (E); A.H., 2012 WL 4450490, at *7–8; T.N.S., 230 S.W.3d at
439.
Giving due deference to the factfinder’s endangering-environment and
endangering-conduct findings, without supplanting the factfinder’s judgment with
our own, and after reviewing the entire record, we hold that a factfinder could
reasonably form a firm conviction or belief that Mother had knowingly placed or
had knowingly allowed Amy and Jack to remain in conditions or surroundings
that had endangered Amy’s and Jack’s emotional or physical well-being and that
Mother had engaged in conduct or had knowingly placed Amy and Jack with
persons who had engaged in conduct that had endangered their physical or
emotional well-being. See A.H., 2012 WL 4450490, at *7–8; T.N.S., 230 S.W.3d
at 439.
We overrule Mother’s first and second issues.
V. BEST-INTEREST FINDING
In his third issue, Father argues that the evidence is legally and factually
insufficient to support the section 161.001(2) finding that termination of the
parent-child relationship between Father and the children is in the children’s best
interest. In her third issue, Mother argues that the evidence is factually
insufficient to support the section 161.001(2) finding that termination of the
parent-child relationship between Mother and the children is in the children’s best
interest.
A. Presumption and Holley Factors
There is a strong presumption that keeping a child with a parent is in the
child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and
permanent placement of the child in a safe environment is also presumed to be
in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2014).
We review the entire record to determine the child’s best interest. In re
E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative
of both the subsection (1) ground and best interest. C.H., 89 S.W.3d at 28; see
E.C.R., 402 S.W.3d at 249. Nonexclusive factors that the trier of fact in a
termination case may use in determining the best interest of the child include the
following:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see
E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we
consider, among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.
These factors are not exhaustive; some listed factors may be inapplicable
to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of
just one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. Id. On the other hand, the
presence of scant evidence relevant to each factor will not support such a
finding. Id.
B. Analysis of Evidence Under the Holley Factors33
With regard to the desires of the children, neither child testified at the
termination trial. At the time of the termination trial, Amy was three years old,
and Jack was twenty-one months old. Mother testified that the children had told
her at the visits that they wanted to come home. No one else heard the children
mention this; the ad litem testified and the CASA volunteer reported that the
children did not cry when they left visits. Although there was evidence that
Mother and the children were physically affectionate during visits, there was also
evidence that the children were not bonded with Father and Mother, that Amy
referred to her foster parents as “Mama” and “Daddy,” that Jack was attached to
his foster parents and seemed secure and happy in the foster home, and that the
children were doing “great” in their foster home. The trial court was entitled to
find that this factor weighed in favor of termination of Father’s and Mother’s
parental rights to the children.
33
Because the Holley factors focus on the best interest of the children, not
the parents individually, we conduct a combined best-interest analysis in
disposing of Father’s and Mother’s third issues.
As for the emotional and physical needs of the children now and in the
future, the children’s basic needs included food, shelter, and clothing; routine
medical and dental care; a safe, stimulating, and nurturing home environment;
and friendships and activities appropriate to their ages. The record revealed that
Amy had begged for food after eating only gummy bears the two days prior, that
the children had not been provided stable housing for most of their lives, that
Jack had not been taken to any well-baby checkups before he came into the
Department’s care, and that some of the environments where the family had
lived—motels, on pallets behind an abandoned bar, and at a home with known
drug users—were not safe. In contrast, the record revealed that all of the
children’s needs were being met in their foster placement and that the foster
parents had worked with Amy to improve her speech and communication skills
due to the developmental delays that she had exhibited in her speech. Mother
testified that if the children were returned, she would take the children to
Presbyterian Night Shelter. But Mother also testified that they planned to move
to either Arkansas or Washington, that Father had a job waiting for him in
Washington, and that she would seek employment once they moved. Because
the record contains no evidence to prove that Father’s and Mother’s financial and
living arrangements would be more stable if the children were returned than what
their arrangements had been during the previous three years,34 the trial court was
34
Father concedes this in his brief, stating that “there was no evidence
concerning the stability of either location.”
entitled to find that this factor weighed in favor of termination of Father’s and
Mother’s parental rights to the children.
With regard to the emotional and physical danger to the children now and
in the future, Hogan testified that the family’s housing instability posed a danger
to the children because they were two and three years old and were unable to
protect themselves and unable to care for themselves. Even with knowledge of
Paternal Grandmother’s and Maternal Grandmother’s previous drug use, Father
and Mother entrusted the children to the grandmothers. The trial court was
entitled to find that this factor weighed in favor of termination of Father’s and
Mother’s parental rights to the children.
With regard to Father’s and Mother’s parenting abilities, the record
revealed that the parents were engaged with the children during the visits.
Mother was noted as being eager to parent the children at visits, taking Amy to
the restroom, changing Jack’s diaper, and bringing an abundance of food.
Father often appeared sleepy and was less engaged than Mother at the visits; he
played with the children only when they approached him. The record
demonstrated that Father and Mother had smoked marijuana after Amy was
born, that Father had tested positive for methamphetamine and amphetamines
the day before the children were removed, and that Father and Mother had left
the children with known drug users. It appeared to one relative that Father and
Mother chose drugs over their children. The record also demonstrated that the
children’s shelter, food, clothing, and medical needs were neglected by Father
and Mother; that Father and Mother subjected the children to panhandling on the
highway in the heat of summer; and that Father and Mother had been arrested
several times. The trial court was entitled to find that this factor weighed in favor
of termination of Father’s and Mother’s parental rights to the children.
The record revealed that the Department had attempted to provide FBSS
services to Father and Mother on numerous occasions during the two years
preceding the removal of the children and that Father and Mother did not stay in
contact with the Department to take advantage of those services. 35 The record
also demonstrated that Father and Mother did not complete their court-ordered
services as part of this case. The trial court was entitled to find that this factor
weighed in favor of termination of Father’s and Mother’s parental rights to the
children.
With regard to the plans for the children and the stability of the proposed
placement, Mother testified that as soon as the case was over, she and Father
wanted to move with the children to Arkansas or Washington, where Paternal
Grandfather lives; Mother testified that Father had a job in Washington and that
she planned to obtain a job. There was no evidence, only speculation, that the
parents’ planned move would provide more stability than their current situation.
The foster parents hoped to adopt Amy and Jack and had shown the ability to
meet all of their needs. The trial court was entitled to find that these two factors
35
The record does not support Father’s argument that “CPS did not provide
Father with available resources simply because he was homeless.”
weighed in favor of termination of Father’s and Mother’s parental rights to the
children.
With regard to the acts or omissions of the parents that may indicate that
the existing parent-child relationships are not proper ones, the analysis set forth
above—which details Father’s and Mother’s instability, their inability to meet the
children’s physical needs due to their instability, and Father’s and Mother’s poor
parenting choices, as well as their failure to take advantage of the services they
were offered—reveals that the existing parent-child relationship between Father
and the children and between Mother and the children are not proper
relationships. The trial court was entitled to find that this factor weighed in favor
of termination of Father’s and Mother’s parental rights to the children.
As for any excuse for the acts or omissions of the parents, Mother testified
that she and Father had both lost their jobs, then their vehicle, and then their
home and that “it’s been a battle ever since.” Mother said that the miscarriage
set her back on her compliance with her service plan. Mother testified that
Escajeda and CPS did not give her any help with finding housing. Although we
are not unsympathetic to Father’s and Mother’s plight, the trial court was entitled
to find that this factor weighed in favor of termination of Father’s and Mother’s
parental rights to the children.
Viewing all the evidence in the light most favorable to the best-interest
finding and considering the nonexclusive Holley factors, we hold that the trial
court could have reasonably formed a firm conviction or belief that termination of
the parent-child relationship between Father and the children was in the
children’s best interest, and we therefore hold the evidence legally sufficient to
support the trial court’s best-interest finding. See Tex. Fam. Code Ann.
§ 161.001(2); Jordan, 325 S.W.3d at 733 (holding evidence legally sufficient to
support the trial court’s finding that termination of mother’s parental rights was in
child’s best interest when most of the best interest factors weighed in favor of
termination).
Similarly, reviewing all the evidence with appropriate deference to the
factfinder, we hold that the trial court could have reasonably formed a firm
conviction or belief that termination of the parent-child relationship between
Father and the children and between Mother and the children was in the
children’s best interest, and we therefore hold that the evidence is factually
sufficient to support the trial court’s best-interest finding. See Tex. Fam. Code
Ann. § 161.001(2); Jordan, 325 S.W.3d at 733 (holding evidence factually
sufficient to support the trial court’s finding that termination of mother’s parental
rights was in child’s best interest when most of the best interest factors weighed
in favor of termination); In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort
Worth 2006, no pet.) (“A parent’s drug use, inability to provide a stable home,
and failure to comply with [a] family service plan support a finding that
termination is in the best interest of the child.”).
We overrule Mother’s and Father’s third issues.
VI. CONCLUSION
Having disposed of Father’s three issues and Mother’s three issues, we
affirm the trial court’s judgment terminating the parent-child relationship between
Father and Amy and Jack and between Mother and Amy and Jack.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.
DELIVERED: November 6, 2014