in the Interest of E.G., a Child

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-21-00271-CV

IN THE INTEREST OF E.G., A CHILD

On Appeal from the County Court at Law No. 1
Randall County, Texas
Trial Court No. 77,407-L1, Honorable James W. Anderson, Presiding

March 4, 2022
OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.

In this accelerated appeal, appellants, Mother and Father, appeal the judgment of

the trial court terminating their parental rights to E.G.1 The appellee is the Texas

Department of Family and Protective Services. Mother and Father contend the trial court

exceeded the scope of de novo review when it terminated their parental rights. Mother

also challenges the sufficiency of the evidence to support the trial court’s findings under

1 To protect the privacy of the parties involved, we refer to the mother of the child as “Mother,” the
father of the child as “Father,” and the child by her initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX.
R. APP. P. 9.8(b).
the predicate grounds, and the finding that termination is in the best interest of E.G. We

affirm the judgment of the trial court as to Mother and Father.

Background

On January 10, 2020, the Department removed E.G. from Mother’s care because

of mental health concerns. At the time of E.G.’s removal, Father had been incarcerated

in the Randall County jail since January 5, 2020. The Department obtained temporary

managing conservatorship, placed E.G. with her maternal aunt and uncle, and filed a

petition to terminate Mother’s and Father’s parental rights. The Department created

family service plans for Mother and Father setting out conditions for reunification,

including: psychological evaluation and participation in individual counseling; completion

of a drug assessment; engagement in any required drug treatment and submission to

random drug testing; completion of rational behavior therapy; participation in anger

control training; participation in therapeutic visitation; and demonstration of stable housing

and employment.

The associate judge conducted a bench trial on June 7, July 23, and August 25,

2021. The following evidence was presented at trial.

Mother and J.C. are the parents of three boys, aged twelve, seven, and five at

the time of trial. Mother and J.C. separated in May of 2016. Mother and Father began

living together in April of 2019. Mother and Father are the parents of E.G., who was born

in May of 2019. E.G. is the child subject of this appeal.

On January 9, 2020, Mother took seven-month-old E.G. and her three brothers

to Northwest Hospital for a sexual assault evaluation after she found the boys “playing
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with each other with puppets and kind of touching and grabbing each other.” Mother

accused J.C. of sexually assaulting the boys. The boys were examined and nothing was

found to substantiate the sexual abuse allegations. Upon leaving the hospital, Mother

took the children to Trinity Fellowship Church in search of a sexual abuse advocate.

Rita Wilkinson, one of the pastors at the church, encountered Mother in the

children’s area of the church. According to Wilkinson, Mother was, yelling, “talking really

crazy,” and not making sense. She said her husband was Lucifer, and he was speaking

to her and telling her what to do. Wilkinson concluded that Mother was hearing voices.

Wilkinson testified that Mother was not stable. While Mother was talking, “she was very

agitated, very anxious, couldn’t give eye contact, couldn’t be still. Would snap at the

children.” Wilkinson observed that the two oldest boys appeared to be afraid of Mother.

Wilkinson observed Mother for an hour and “honestly felt like [she] was in danger when

[Mother] was talking to [her.]” Another pastor at the church, Jaret Warren, testified that

he spoke to Mother after childcare workers at the church found a sock inside E.G.’s diaper

covering her genitals. According to Warren, Mother claimed E.G. “was being chastised.”

Mother also stated she was afraid “[J.C.] was going to go back in time and kill Jesus.”

Mother testified that she kept a sock in E.G.’s diaper as an “armor of protection” from her

car seat buckle. Mother disputed the testimony that she told a church worker that she

had given birth to Satan’s children. Warren asked Mother if she was taking

antidepressant medication and Mother stated that she had been prescribed medication,

but she was not currently taking the medication. Warren described Mother’s behavior as

“erratic” and “frantic.” Warren was concerned for E.G.’s safety and contacted the

Department.

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 Around 9:30 p.m., Department investigator Dustin Pierce interviewed Mother at

her residence after she and the children had left the church. According to the investigator,

Mother was not coherent and was making strange comments.

A few hours later, Pierce was called back to Mother’s home by Amarillo Police

Officer Matthew Brush. Brush was investigating Mother’s report that her boys had been

kidnapped. However, Brush quickly determined that the boys were with J.C. According

to Brush, Mother was “acting very strangely.” She was pacing, talking to herself, and

saying random things, such as, “[T]hey just don’t listen. Y’all need to get him. They’re

listening to us.” Mother was holding E.G., but she was not supporting E.G.’s head. E.G.

was “just kind of flailing around.” Brush was concerned for the welfare of E.G. because

he did not feel like Mother could take care of herself, much less E.G. Brush testified that

Mother was engaging in conduct that could endanger E.G.’s emotional or physical well-

being. Brush arrested Mother for an outstanding traffic warrant and Pierce took

possession of E.G. Pierce asked Mother to give him the names of possible placements

for E.G., but Mother refused. Mother did admit to Pierce that she had a history of

postpartum depression and she had not taken any medication in several years.

On January 12, 2020, at 1:30 p.m., Officer Michael Cote was dispatched to

Mother’s home for an assault. As Cote approached Mother’s home, maternal

grandmother flagged him down. Cote observed that maternal grandmother was

“obviously distressed.” She told Cote that Mother had held her against her will and

assaulted her for several hours. According to Cote, maternal grandmother was hysterical,

crying, and complaining of pain in her chest. Maternal grandmother told officer Cote that

Mother had punched, kicked, and bitten her. During the assault, Mother grabbed a broken
4
piece of glass and carved a cross into maternal grandmother’s forehead. Cote also noted

that maternal grandmother had multiple bruises on her arms, bite marks across her chest

and arms, and hair missing from her forehead.

Mother testified she began arguing with maternal grandmother around 4:00 a.m.,

and that the argument turned into a physical altercation. Mother acknowledged hitting

maternal grandmother in the eye, which caused her eye to swell shut. Mother admitted

she “reached out with a piece of glass” which made a cross formation in the middle of

maternal grandmother’s forehead. Mother also admitted to biting maternal grandmother

multiple times on her breast. Mother testified that she was in a “hyper[-]religious state” at

the time of the assault. Mother further admitted she urinated on maternal grandmother

after the assault. Mother claimed that she received injuries in the attack, but she did not

seek treatment for any injuries.

Mother was arrested and incarcerated in the Randall County Jail. She was

indicted for the third-degree felony offense of assault of a family member by impeding

breath or circulation. Mother was deemed incompetent to stand trial and was transferred

to the state hospital for evaluation and treatment for psychosis, depression, and suicidal

ideation. During her stay at the state hospital, Mother was diagnosed with post-traumatic

stress disorder and depression. She was prescribed Lamictal, a mood stabilizer, and

Effexor for her depression. Later, Mother was prescribed Wellbutrin for depression and

BuSpar for her anxiety. Mother was released from the state hospital after three months

and was discharged to the Randall County Jail. In August of 2020, Mother pled guilty to

the felony assault charges and was placed on five years’ deferred adjudication probation.

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 At the time E.G. was removed, Father was incarcerated in the Randall County

Jail for violations of his federal parole. Father told the caseworker he had used

methamphetamine for many years and he had used methamphetamine recently. He also

said he had used methamphetamine with Mother.

Father’s criminal history dated back to 2005 and included a conviction for the

offense of conspiring to possess, with intent to distribute, 100 kilograms or more of

marijuana for which he received a sentence of five years in federal prison and five years

of supervised release. Father admitted to using and possessing methamphetamine while

on parole resulting in his confinement in 2012 for ten months and in 2015 for twenty-one

months. In August of 2019, he was arrested for possession and using methamphetamine

and marijuana. Father was then incarcerated for violating his federal supervision from

January 5, until October of 2020.

After Father was released from jail in October of 2020, he resumed his

relationship with Mother. He completed most of the requirements of his service plan after

he was released from jail; however, he did not maintain sobriety. Father relapsed in

January of 2021 and used methamphetamine for “a week or two.” Father tested positive

for methamphetamine in January, February, and May of 2021. Father has a long history

of drug abuse and he has relapsed four times in the last ten years. Father did not seek

drug treatment during the pendency of this case, and he is not participating in a twelve-

step program. The caseworker told Mother separately, and Mother and Father together,

that Father could not be a caretaker for E.G. and that his drug use could affect Mother’s

reunification with E.G.

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 In August of 2020, after she was released from jail, Mother began to work the

services in her family plan of service. One of Mother’s service providers was DeLois

Hinders, a licensed professional counselor. Hinders provided individual counseling to

Mother and supervised therapeutic visitation between E.G. and Mother and Father.

Hinders testified the Department became involved with Mother after a psychotic

episode. According to Hinders, “[Mother] had become hyper[-]religious, that there was

some paranoia about sexual abuse of [E.G.]. She was behaving in some strange ways.

She had a violent altercation with her mother, and that was–there were many kinds of

confusing hallucinatory experiences she was having at the time.” Mother told Hinders

she was acting in self-defense and anger when she assaulted maternal grandmother, and

she continues to have angry feelings toward maternal grandmother. Hinders opined a

psychotic episode can have violent tendencies towards others and it would be concerning

if it occurred around a child.

Hinders recounted the events that precipitated Mother’s “psychotic break” in

January of 2020: Mother and Father’s relationship was deteriorating; Father had been

arrested and there had been a separation; Mother was caring for a newborn and three

other children; she was on call at work; she was not sleeping well; she quit or lost her job;

and she was not making her mortgage payment. Hinders diagnosed Mother with

unspecified depressive disorder and unspecified personality disorder. Hinders does not

know how long Mother was psychotic before the January 2020 episode. According to

Hinders, Mother had struggled with anxiety and depression off and on since her teenage

years. Hinders did not obtain any information from family members concerning Mother’s

mental health history and relied only on what Mother reported. Hinders was unaware of
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Mother’s history of attempted suicide after J.C. and Mother separated in 2016.

Hinders’s current recommendations are that Mother remain compliant with her

psychiatric treatment and medications prescribed by her psychiatrist, and that she

continue individual counseling. Hinders noted that Mother reported a history of marijuana

use and she was not compliant with the portion of her treatment plan for her recovery for

her substance abuse because she continued to be around Father who was a known

substance abuser. Hinders’s main concern is Mother’s ability to be independent of her

relationship with Father and her ability to take care of herself and protect E.G. in the event

Father relapsed. Hinders recommended that Mother rent a place in her own name and

put some distance between herself and Father after he was released from prison.

Instead, Mother and Father continued to live together after his release and after he

relapsed in January of 2021.

During the time Hinders spent with Mother, she did not see anything in the

sessions that suggested Mother would be a danger to E.G. or to anyone. The therapeutic

visits are going well, and Mother actively participates in the visits. In the beginning, E.G.

had separation anxiety and it “flared up” throughout May and June of 2021. According to

Hinders, Mother and E.G. have bonded, particularly in the last three sessions.

Maternal aunt and uncle filed an intervention seeking managing conservatorship

of E.G. Maternal aunt testified that Mother exhibited behavior growing up where she

randomly talked to people who were not present. She “was always angry, aggressive,

she was physically abusive, mentally abusive, verbally abusive. She would also attack

anything.” Maternal aunt observed Mother talking to walls at various times. According to

8
maternal aunt, Mother had been prescribed several medications for her mental health.

However, Mother refused to take the medications as prescribed. “[Mother] would wean

herself off when she wanted because she would think she was better, and then she would

self-medicate.” Further, she has observed medications in Mother’s home that were

prescribed to others which she alleges Mother stole from facilities where she worked.

Maternal aunt and uncle decided to seek custody of E.G. after a permanency hearing

where Mother “came off very hostile and aggressive towards any comments or questions

to be asked or answered. And it was continuous. She couldn’t stop and she just kept

going.”

Mother was diagnosed with depression and anxiety in nursing school, and she has

a history of PTSD related to sexual abuse. Mother testified that she had previously been

prescribed Xanax. She denied abusing prescription drugs, stating that she always took

her medication as prescribed. However, she also testified that she has been prescribed

antidepressants and antianxiety medication throughout her adult life and stopped taking

the medication “because I don’t want to take it.” Mother admitted that, in the months

before her “psychotic break,” she had stopped taking Xanax and was self-medicating with

marijuana and alcohol because “it helped her cope with pain and anxiety.” She testified

she was currently under the care of a psychiatrist in Plainview, and she is compliant with

her prescribed medication.

Mother has known Father since the summer of 2018, and they have lived together

“off and on” since April of 2019. E.G. was born in May of 2019. In September of 2019,

when Father was arrested for possession of methamphetamine, Mother “kicked him out

of the house” but she claims she was not privy to the details of his arrest. She was only
9
told that it was a probation violation. Mother was aware Father had issues with substance

abuse but denied she was aware of him using after E.G. was born. Mother admitted she

used marijuana with Father in the past. The last time she used marijuana was before she

was arrested in January of 2020.

Mother’s house was foreclosed while she was incarcerated. After she was

released from jail, she moved to Friona and lived with the paternal grandmother until

Father was released from prison in October of 2020. Mother and Father broke up

intermittently after he was released from prison due to the “stress of the CPS and the

court proceedings.”2 They have resided in their current residence in Hereford since

January of 2021. They do not have a lease, but they plan to negotiate a rent-to-own

arrangement. After Father relapsed in January, he stayed with some of his friends “for

about a month.” When he got a clean urinalysis in February, he moved back into the

home with Mother.

Mother and Father have set up a bedroom with a television for E.G. Mother’s

therapeutic visitation with E.G. is going well and she continues to have supervised

visitation with her three sons.

Mother has been an R.N. since 2004. She is currently employed by Country View

Living making $30 to $32 an hour. Mother’s work hours vary, but she typically works

three days a week from 6:00 p.m. to 6:00 a.m. Mother testified that paternal grandmother

would keep E.G. at night because Father also works nights. Mother has “looked into”

2 Father’s family plan of service required that he participate in anger control training due to his
reports of domestic disputes between him and Mother.

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calling daycares for E.G., and she has inquired about changing her work schedule from

the night shift to the day shift. Mother denied telling anyone that Father would be keeping

E.G. while she was at work. Mother has a backup sitter but cannot remember her name.

According to the caseworker, in May or June of 2021, Mother and Father told her

that the plan going forward was that Father would be the primary caregiver for E.G.

because Mother would work nights. The caseworker told Mother and Father that the

Department objected to Father providing primary care for E.G. The caseworker strongly

encouraged Mother to obtain her own housing separate and apart from Father due to

Father’s substance abuse and the history of the relationship between Mother and Father.

The Department’s major concern remains Mother’s mental health stability. The

caseworker testified there has been no resolution to her mental health issues and Hinders

has not released Mother from her individual counseling. The caseworker opined that

Mother was unable to care for the emotional and physical needs of E.G. now and in the

future. A drug relapse that happened in the home could affect the stability of the home

and pose an emotional and physical danger to E.G. The caseworker testified that it was

in E.G.’s best interest that Mother’s parental rights be terminated based on Mother’s

continued relationship with Father, Father’s drug abuse history, Mother’s willingness to

leave E.G. in Father’s care, and Mother’s failure to work toward some of the goals

recommended by Hinders for her to be independent of a relationship with Father. She

further testified that it is in E.G.’s best interest that Father’s parental rights be terminated

based upon his history of methamphetamine use, his relapse in January of 2021, and his

recent positive hair strand test for methamphetamine.

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 E.G. is placed with a maternal aunt and uncle who have intervened in the

proceedings seeking managing conservatorship of E.G. E.G. is doing “very well” in this

placement. All of E.G.’s needs are being met, including her medical, dental, and

psychological needs. The Intervenors have become a licensed foster home since E.G.

was placed with them. They have arranged for E.G. to visit with her brothers two to three

times a month. E.G. is “extremely excited” to return to the placement after visits. The

caseworker testified that it was in E.G.’s best interest to remain in her current placement.

If parental rights are terminated, the Intervenors plan to adopt E.G.

On September 2, 2021, the associate judge emailed his ruling ordering a

monitored return of E.G. to Mother. That same day, Intervenors filed a request for de

novo hearing. On September 7, 2021, the associate judge signed an order on monitored

return that specified that Mother’s unsupervised possession of E.G. would not begin until

Father moved to a residence separate from Mother, that Father would have supervised

visits at the Department, and he would have no contact with the child while Mother had

possession of E.G. Intervenors filed objections to this order.

In October of 2021, the Honorable James W. Anderson granted Intervenors’

request for a de novo hearing and considered the entire record from the prior hearings.

The trial court terminated Mother’s parental rights to E.G. on the grounds of endangering

conditions and endangerment. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E).3 The

trial court also found that termination was in the best interest of E.G. See § 161.001(b)(2).

3 Further references to provisions of the Texas Family Code will be by reference to “section ___”
or “§ ___.”

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The trial court terminated Father’s parental rights to E.G. on the grounds of endangerment

and failure to comply with a court order that established actions necessary to obtain return

of the child. See § 161.001(b)(1)(E), (O). The trial court also found that termination was

in the best interest of E.G. See § 161.001(b)(2). The Department was appointed the

permanent managing conservator of E.G.

Mother and Father timely appealed the resulting judgment. On appeal, Mother

and Father contend the trial court erred in exceeding the scope of review of the de novo

hearing. Mother also challenges the sufficiency of the evidence to support the trial court’s

findings under the predicate grounds, and the finding that termination is in the best interest

of E.G.

Standard of Review

When reviewing the legal sufficiency of the evidence in a termination case, the

appellate court should look at all the evidence in the light most favorable to the trial court’s

finding “to determine whether a reasonable trier of fact could have formed a firm belief or

conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). To

give appropriate deference to the factfinder’s conclusions, we must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do

so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved or

found to have been not credible, but we do not disregard undisputed facts. Id. Even

evidence that does more than raise surmise or suspicion is not sufficient unless that

evidence can produce a firm belief or conviction that the allegation is true. In re K.M.L.,

443 S.W.3d 101, 113 (Tex. 2014). If, after conducting a legal sufficiency review, we

13
determine that no reasonable factfinder could have formed a firm belief or conviction that

the matter that must be proven was true, then the evidence is legally insufficient, and we

must reverse. Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, we must give due consideration to evidence that the

factfinder could reasonably have found to be clear and convincing. In re J.F.C., 96

S.W.3d at 266. We must determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the petitioner’s allegations.

Id. We must also consider whether disputed evidence is such that a reasonable factfinder

could not have resolved the disputed evidence in favor of its finding. Id. If, considering

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, then the evidence is factually insufficient. Id.

Applicable Law

A parent’s right to the “companionship, care, custody, and management” of his or

her child is a constitutional interest “far more precious than any property right.” Santosky

v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); see In re

M.S., 115 S.W.3d 534, 547 (Tex. 2003). Consequently, we strictly scrutinize termination

proceedings and strictly construe the involuntary termination statutes in favor of the

parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). However, “the rights of natural

parents are not absolute” and “[t]he rights of parenthood are accorded only to those fit to

accept the accompanying responsibilities.” In re A.V., 113 S.W.3d 355, 361 (Tex. 2003)

(citing In re J.W.T., 872 S.W.2d 189, 195 (Tex. 1994)). Recognizing that a parent may

14
forfeit his or her parental rights by his or her acts or omissions, the primary focus of a

termination suit is protection of the child’s best interests. See id.

In a case to terminate parental rights under section 161.001 of the Family Code,

the petitioner must establish, by clear and convincing evidence, that (1) the parent

committed one or more of the enumerated acts or omissions justifying termination, and

(2) termination is in the best interest of the child. § 161.001(b). Clear and convincing

evidence is “the measure or degree of proof that will produce in the mind of the trier of

fact a firm belief or conviction as to the truth of the allegations sought to be established.”

§ 101.007; In re J.F.C., 96 S.W.3d at 264. Both elements must be established and

termination may not be based solely on the best interest of the child as determined by the

trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re

K.C.B., 280 S.W.3d 888, 894 (Tex. App.—Amarillo 2009, pet. denied). “Only one

predicate finding under section 161.001[(b)](1) is necessary to support a judgment of

termination when there is also a finding that termination is in the child’s best interest.” In

re A.V., 113 S.W.3d at 362. We will affirm the termination order if the evidence is both

legally and factually sufficient to support any alleged statutory ground the trial court relied

upon in terminating the parental rights if the evidence also establishes that termination is

in the child’s best interest. In re K.C.B., 280 S.W.3d at 894-95.

The clear and convincing evidence standard does not mean the evidence must

negate all reasonable doubt or that the evidence must be uncontroverted. In re R.D.S.,

902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ). The reviewing court must recall

that the trier of fact has the authority to weigh the evidence, draw reasonable inferences

therefrom, and choose between conflicting inferences. Id. The factfinder also enjoys the
15
right to resolve credibility issues and conflicts within the evidence and may freely choose

to believe all, part, or none of the testimony espoused by any witness. Id. Where

conflicting evidence is present, the factfinder’s determination on such matters is generally

regarded as conclusive. In re B.R., 950 S.W.2d 113, 121 (Tex. App.—El Paso 1997, no

writ).

The appellate court cannot weigh witness credibility issues that depend on

demeanor and appearance as the witnesses are not present. In re J.P.B., 180 S.W.3d

570, 573 (Tex. 2005). Even when credibility issues are reflected in the written transcript,

the appellate court must defer to the factfinder’s determinations, if those determinations

are not themselves unreasonable. Id.

A determination of best interest necessitates a focus on the child, not the parent.

In re B.C.S., 479 S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.). Appellate courts

examine the entire record to decide what is in the best interest of the child. In re E.C.R.,

402 S.W.3d 239, 250 (Tex. 2013). There is a strong presumption that it is in the child’s

best interest to preserve the parent-child relationship. In re R.R., 209 S.W.3d 112, 116

(Tex. 2006).

In assessing whether termination is in a child’s best interest, the courts are guided

by the non-exclusive list of factors in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.

1976). These factors include: (1) the desires of the child, (2) the emotional and physical

needs of the child now and in the future, (3) the emotional and physical danger to the child

now and in the future, (4) the parental abilities of the individuals seeking custody, (5) the

programs available to assist these individuals to promote the best interest of the child, (6)

16
the plans for the child by these individuals or by the agency seeking custody, (7) the

stability of the home or proposed placement, (8) the acts or omissions of the parent that

may indicate that the existing parent-child relationship is not proper, and (9) any excuse

for the acts or omissions of the parent. Id. “[T]he State need not prove all of the factors

as a condition precedent to parental termination, ‘particularly if the evidence were

undisputed that the parental relationship endangered the safety of the child.’” In re C.T.E.,

95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting In re

C.H., 89 S.W.3d 17, 27 (Tex. 2002)). Evidence that supports one or more statutory

grounds for termination may also constitute evidence illustrating that termination is in the

child’s best interest. See In re E.C.R., 402 S.W.3d at 249. The best interest analysis may

consider circumstantial evidence, subjective factors, and the totality of the evidence as

well as direct evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.). We must also bear in mind that a child’s need for permanence through the

establishment of a stable, permanent home has been recognized as the paramount

consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.

App.—Dallas 2007, no pet.).

Analysis

De Novo Review

In Father’s sole issue and Mother’s first issue, they contend the trial court erred by

exceeding the scope of de novo review requested by Intervenors. Father and Mother

argue Intervenors did not plead for a de novo determination concerning termination of the

parent-child relationship between Mother and Father and only asked for a de novo

17
hearing clarifying the terms of the monitored return. They also say the referring judge

went beyond a de novo review of the order for monitored return and sua sponte conducted

a new trial. We disagree.

The record reflects that Intervenors sought two forms of relief in the court below

following the associate judge’s ruling of September 2, 2021, granting a monitored return.

First, on September 2, Intervenors timely filed a request for a de novo hearing. See

§ 201.015(a) (“[a] party may request a de novo hearing before the referring court by filing

with the clerk of the referring court a written request not later than the third working day

after the date the party receives notice of the substance of the associate judge’s [ruling

or order].”). In their written request for de novo hearing, Intervenors sought a de novo

hearing to include: (1) the Department remaining managing conservator; (2) Mother

having a monitored return; (3) termination of parental rights of Mother and Father; (4)

adoption by Intervenors; and (5) naming Intervenors managing conservators. See

§ 201.015(b) (a request for de novo hearing must specify the issues that will be presented

to the referring court); In re L.R., 324 S.W.3d 885, 890 n.5 (Tex. App.—Austin 2010, orig.

proceeding) (“[T]he de novo hearing before the referring court is limited to those issues

raised in the hearing request.”). Second, on September 8, Intervenors filed an “objection

to order for monitored return” in response to a proposed order for monitored return.

At the outset of the de novo hearing on October 1, 2021, Intervenors’ counsel

requested the court to consider the issues outlined in their request for de novo hearing.

Because the Intervenors’ request was timely filed and specifically identified the issues to

be presented, we conclude that the issue of termination of parental rights was properly

before the referring court. We reject Father’s and Mother’s contention that the trial court
18
exceeded the scope of de novo review. Accordingly, we overrule Father’s sole issue4

and Mother’s first issue.

Sufficiency of the Evidence under Section 161.001(b)(1)(D) and (E)

In her second issue, Mother challenges the legal and factual sufficiency of the

evidence to support the termination of her parental rights under subsections

161.001(b)(1)(D) and (E). Ordinarily, only one statutory predicate ground is required to

support termination when there is also a finding that termination is in the child’s best

interest. In re A.V., 113 S.W.3d at 362. However, in light of the Texas Supreme Court

opinion in In re N.G., we review the trial court’s findings under both subsections (D) and

(E) when raised on appeal because of the potential consequences to Mother’s parental

rights in a future proceeding concerning a different child. In re N.G., 577 S.W.3d 230,

235-37 (Tex. 2019) (per curiam).

A trial court may order termination of a parent-child relationship if the court finds

by clear and convincing evidence that a parent has knowingly placed or knowingly

allowed a child to remain in conditions or surroundings which endanger the physical or

emotional well-being of the child and/or engaged in conduct or knowingly placed the

child with persons who engaged in conduct which endangers the physical or emotional

well-being of the child. See § 161.001(b)(1)(D), (E). Both subsections (D) and (E)

require proof of endangerment. To “endanger” means to expose the child to loss or

injury or to jeopardize the child’s emotional or physical health. Boyd, 727 S.W.2d at

4 Father does not challenge the sufficiency of the evidence to support the grounds for termination
or the best interest finding.

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533. A child is endangered when the environment creates a potential for danger that

the parent is aware of but consciously disregards. J.S. v. Tex. Dep’t of Family &

Protective Servs., 511 S.W.3d 145, 159 (Tex. App.—El Paso 2014, no pet.). Endanger

means more than a threat of metaphysical injury or the possible ill effects of a less-

than-ideal family environment, but it is not necessary that the conduct be directed at

the child or that the child suffer injury. In re N.K., 399 S.W.3d 322, 330-31 (Tex. App.—

Amarillo 2013, no pet.).

While both subsections (D) and (E) focus on endangerment, they differ regarding

the source of the physical or emotional endangerment to the child. See In re B.S.T.,

977 S.W.2d 481, 484 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Subsection

(D) requires a showing that the environment in which the child is placed endangered

the child’s physical or emotional health. Doyle v. Tex. Dep’t of Protective & Regulatory

Servs., 16 S.W.3d 390, 394 (Tex. App.—El Paso 2000, pet. denied). Conduct of a

parent or another person in the home can create an environment that endangers the

physical and emotional well-being of a child as required for termination under

subsection (D). In re W.S., 899 S.W.2d 772, 776 (Tex. App.—Fort Worth 1995, no

pet.). Inappropriate, abusive, or unlawful conduct by persons who live in the child’s

home or with whom the child is compelled to associate on a regular basis in his home

is a part of the “conditions or surroundings” of the child’s home under subsection (D).

In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.) (op. on

reh’g). The factfinder may infer from past conduct endangering the child’s well-being

that similar conduct will recur if the child is returned to the parent. Id. Thus, subsection

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 (D) addresses the child’s surroundings and environment rather than parental

misconduct, which is the subject of subsection (E). Doyle, 16 S.W.3d at 394.

Under subsection (E), the cause of the danger to the child must be the parent’s

conduct alone, as evidenced not only by the parent’s actions, but also by the parent’s

omission or failure to act. In re M.J.M.L., 31 S.W.3d 347, 350-51 (Tex. App.—San Antonio

2000, pet. denied); Doyle, 16 S.W.3d at 395. To be relevant, the conduct does not have

to have been directed at the child, nor must actual harm result to the child from the

conduct. Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex.

App.—Dallas 1995, no writ). Additionally, termination under subsection (E) must be

based on more than a single act or omission; a voluntary, deliberate, and conscious

course of conduct by the parent is required. In re E.P.C., 381 S.W.3d 670, 683 (Tex.

App.—Fort Worth 2012, no pet.). The specific danger to the child’s well-being need not

be established as an independent proposition but may be inferred from parental

misconduct. In re B.C.S., 479 S.W.3d at 926. “[A] parent’s use of narcotics and its effect

on his or her ability to parent may qualify as an endangering course of conduct.” In re

J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). Because the evidence pertaining to

subsections 161.001(b)(1)(D) and (E) is interrelated, we may conduct a consolidated

review. In re M.R.J.M., 280 S.W.3d at 503.

A parent’s mental state may be considered in determining whether a child is

endangered if that mental state allows the parent to engage in conduct that jeopardizes

the physical or emotional well-being of the child. In re R.W., 129 S.W.3d 732, 739 (Tex.

App.—Fort Worth 2004, pet. denied). Suicidal ideation may also contribute to a finding

that a parent engaged in endangering conduct. Id.
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 Here, the evidence demonstrates that Mother had a history of depression and

anxiety since high school. Mother had been prescribed medication to help control the

symptoms of her depression and anxiety, but she refused to take advantage of these

remedies. Instead, Mother would wean herself off the medication and resort to self-

medicating with alcohol and marijuana to alleviate her symptoms. In May of 2016, after

separation from J.C., Mother attempted suicide by taking ten Xanax tablets and drinking

an eighteen pack of beer. Mother admitted to the investigator in January of 2020 that she

was suffering from postpartum depression, but she had recently stopped taking her

medication. Mother’s mental instability was such that at that time, she experienced erratic

behavior, auditory and visual hallucinations, hyper-religious thoughts, and paranoia.

During a psychotic episode a few days later, she brutally assaulted maternal

grandmother. Mother was deemed incompetent to stand trial and received medical

intervention at the state hospital. After her discharge, she received ongoing treatment by

a psychiatrist. Moreover, Mother has not taken the necessary steps to protect her sobriety

or remedy the instability of the home as she remains in a relationship with Father who

has a history of substance abuse and incarceration. The trial court could have reasonably

inferred that Mother would continue her pattern and practice of providing an unstable and

abusive home for E.G. that has the potential to compromise her emotional and physical

well-being. See In re N.M.L., No. 07-17-00310-CV, 2018 Tex. App. LEXIS 607, at *14

(Tex. App.—Amarillo Jan. 19, 2018, pet. denied) (mem. op.) (physical violence in the

home leads to an unstable and unpredictable environment for child). While mental

incompetence or mental illness alone are not grounds for termination of the parent-child

relationship, “[w]hen a parent’s mental state allows the parent to engage in conduct that

22
endangers the physical or emotional well-being of the child, that conduct has bearing on

the advisability of terminating the parent’s rights.” In re P.W., 579 S.W.3d 713, 727 (Tex.

App.—Houston [14th Dist.] 2019, no pet.).

The evidence showed that before and after E.G.’s birth, Mother did not take the

medication that was prescribed for her depression and anxiety. The trial court could have

concluded that Mother’s failure to take the medication after E.G.’s birth endangered E.G.’s

well-being. See In re K.G., 350 S.W.3d 338, 355 (Tex. App.—Fort Worth 2011, pet.

denied) (“[T]he trial court could have chosen to believe that Mother’s . . . failure to . . . take

steps to treat her mental health issues demonstrated an inability to provide [the child] with

a safe environment.”).

The trial court also heard evidence of Father’s drug conviction and parole

violations, his use of methamphetamine before and after E.G.’s birth, his use of

methamphetamine with Mother, Mother’s admission that she and Father used marijuana,

his admission to using methamphetamine during the time he lived with E.G. and Mother,

and his relapse shortly before trial. The trial court could have concluded that Mother’s

ongoing relationship with Father jeopardized her substance abuse recovery, and posed a

risk to E.G.’s emotional and physical well-being. “[A] parent’s decision to leave a child in

the care of a known drug user is relevant to the predicate acts or omissions outlined in

subsections (D) and (E).” In re J.J., No. 07-13-00117-CV, 2013 Tex. App. LEXIS 11194,

at *12 (Tex. App.—Amarillo Aug. 29, 2013, no pet.) (mem. op.). The evidence that a

parent allowed a child to be around persons using drugs can support the conclusion that

the child’s surroundings endanger her physical or emotional well-being under subsection

(D) and can qualify as a voluntary, deliberate, and conscious course of conduct
23
endangering the child’s well-being under subsection (E). See In re C.V.L., 591 S.W.3d

734, 751 (Tex. App.—Dallas 2019, pet. denied).

Having examined the entire record, we find that the trial court could reasonably

form a firm belief or conviction that Mother knowingly placed or knowingly allowed E.G.

to remain in conditions or surroundings which endangered her physical or emotional well-

being and engaged in conduct or knowingly placed E.G. with persons who engaged in

conduct which endangered E.G.’s emotional and physical well-being. The same evidence

is factually sufficient to support the trial court’s affirmative finding. We overrule issue two.

Best Interest

In her remaining issue, Mother challenges the factual and legal sufficiency of the

evidence to support the best interest finding made under section 161.001(b)(2).

We begin our analysis of E.G.’s best interest having just concluded that there was

legally and factually sufficient evidence presented to support the trial court’s findings

under section 161.001(b)(1)(D) and (E). The evidence submitted to prove the statutory

predicate grounds for termination outlined above is probative that termination is in the

best interest of E.G. In re E.C.R., 402 S.W.3d at 249; In re C.H., 89 S.W.3d at 28.

The trial court’s determinations that Mother knowingly placed or allowed E.G. to

remain in conditions or surroundings which endangered her physical or emotional well-

being, and engaged in conduct or knowingly placed E.G. with persons who engaged in

conduct which endangered E.G.’s physical or emotional well-being supports the

proposition that termination is in E.G.’s best interest under the second and third Holley

factors. Id. Mother’s untreated mental health issues gave way to behavior that resulted
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in E.G.’s removal and constituted conduct that endangered E.G.’s physical and emotional

well-being. In re M.P., No. 02-14-00032-CV, 2014 Tex. App. LEXIS 8689, at *54-55 (Tex.

App.—Fort Worth Aug. 7, 2014 no pet.) (mem. op.) (per curiam) (a parent’s failure to take

medication as prescribed can expose a child to endangerment of her emotional or

physical well-being). Moreover, Mother’s decision to continue her relationship with

Father, who had a significant substance abuse and relapse history and numerous

incarcerations, subjects E.G. to a life of uncertainty and instability that further endangers

her physical and emotional well-being.

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.). The factfinder may

compare the parent’s and the Department’s plans for the child and determine whether the

plans and expectations of each party are realistic or weak and ill-defined. Id. at 119-20.

The trial court had before it evidence reflecting the precarious nature of Mother and

Father’s relationship. Mother met Father after he was paroled for a federal drug offense

in 2018. Father violated his parole several times by using methamphetamine and he was

sentenced to prison multiple times. In August of 2019, Father was living with Mother and

E.G. when he was arrested for violation of his parole by using and possessing marijuana

and methamphetamine. When Father completed his latest prison term in October of

2020, Mother and Father resumed their relationship, but they separated several times due

to the stress of the underlying proceedings. In January, February, and May of 2021,

Father relapsed and submitted hair follicle drug screens that were positive for

methamphetamine. The trial court also heard evidence that Father had relapsed four

times in the span of ten years. Hinders testified that Mother was not compliant with the

25
substance abuse recovery portion of her treatment plan because she continued to have

a relationship with Father and heavily relied on him as a support system. Hinders also

recommended that Mother continue with her individual counseling, but Mother’s last

session was in April of 2021. Significantly, Mother failed to articulate a plan for her mental

health treatment going forward.

We do acknowledge the testimony that therapeutic visitation was going well and

that Mother and E.G. had bonded during the last three visitations. Mother testified that

she was employed, had furnished E.G.’s room, and was checking daycare options for

E.G.

Conversely, the Intervenors are providing a drug-free environment and the stability,

structure, security, and consistency that E.G. needs. E.G. has been living with the

Intervenors for seventeen months. The evidence shows that E.G. is strongly bonded with

her foster family and they desire to adopt her. According to the caseworker, E.G. is

thriving in the home and she is well cared for in this placement. When children are too

young to express their desires, the factfinder may consider whether the children have

bonded with the foster family, and are well-cared for by them. In re S.R., 452 S.W.3d

351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Further, the Department’s

plan for E.G.’s adoption provides permanence and stability for E.G. and weighs heavily in

favor of the trial court’s conclusion that termination of Mother’s parental rights is in the

best interest of E.G.

We conclude the evidence is legally and factually sufficient to establish a firm

conviction in the mind of the trial court that termination of Mother’s parental rights is in the

26
best interest of E.G. We overrule Mother’s third issue challenging the best interest

determination.

We affirm the trial court’s order terminating Mother’s parental rights to E.G.

Conclusion

Having overruled Father’s sole issue and Mother’s three issues, we affirm the

judgment of the trial court terminating Mother’s and Father’s parental rights.

Judy C. Parker
Justice

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