TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00164-CV
C. C., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 315,071-B, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING
MEMORANDUM OPINION
C.C. (Mother) appeals from the trial court’s decree terminating her parental rights
to her six children: Margaret, Sam, Nancy, David, Madison, and Ryan.1 Mother complains about
the legal and factual sufficiency of the evidence supporting the trial court’s findings about
statutory-predicate grounds for termination and the children’s best interests. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (O), (2). For the following reasons, we affirm the termination decree.
PROCEDURAL BACKGROUND
In January 2020, the Texas Department of Family and Protective Services removed
all six children from Mother and Father M.’s home and filed an “Original Petition in Suit Affecting
the Parent-Child Relationship—Termination Petition and/or Managing Conservatorship.” The
1
For the children’s privacy, we refer to them by pseudonyms and to their family
members by their relationships to them. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
The trial court’s decree also terminated the parental rights of the children’s respective fathers
(Father L.—father of Margaret, Sam, Nancy, and David—and Father M.—father of Madison and
Ryan and husband of Mother), but neither father has appealed.
children were then twelve (Margaret), eleven (Sam), nine (Nancy), eight (David), four
(Madison), and three (Ryan). In the removal affidavit accompanying the Department’s petition,
the Department investigator averred that in December 2019 the Department was investigating
reports of physical abuse of Sam by Mother, the children’s primary caregiver.
According to the affidavit, law enforcement was called to the family’s home after
Margaret ran to a neighbor’s house stating that Mother was “trying to smash her brother’s face
into the wall.” Father M. was not home but Mother and the children were. Sam “was observed
by Law Enforcement to have several marks and injuries on his face” that “were fresh” and had
“dried blood on the side of his face by his ear.” The home appeared “disgusting,” “filthy,” and
“dirty,” and it “smelled like [f]eces.” Sam told the investigator that Mother caused his injuries
by “pushing him down into a corner because he would not stay still” and “slammed him down
to the ground and put her knee on his back to attempt to hold him down.” Margaret told the
investigator that Mother “does this all the time to [Sam],” “does drugs in front of them,” and
“uses methamphetamines.” Mother was arrested for child endangerment and incarcerated in Bell
County Jail. In an interview with the Killeen Police Department, Mother admitted to “physically
disciplining [Sam]” and that “all her children have mental health conditions and [physical
discipline] is the only way that she knows how to control them.” She also admitted to using
methamphetamine but denied using in front of the children.
The Department investigator averred about the family’s lengthy CPS history. In
2013, Mother received five years’ probation for a felony child-endangerment conviction after the
Department became involved with the family while investigating a report that Mother had bitten
Sam on a “lower extremity” because the child “was hungry.” In 2015, the Department received a
report that Mother was neglectfully supervising then-newborn Madison and “exhibiting erratic
2
and bizarre paranoid behavior that is believed to be indicative of mental illness.” At that time,
the Department had “concerns” that Mother was “unable to care for children” in part because she
had “sent four children to live with the maternal grandmother in Maine.” Mother had been
incarcerated until “shortly before newborn [Madison]’s birth,” and the Department removed
Madison from the home but later returned her to Mother and Father M. after they completed
required family services. In 2016, the Department received an allegation that Mother was
“mentally unstable” because she had reported that her hospital room was haunted and that she
“heard voices.” After Mother explained to the Department that she had been “joking” and recanted
her statement about hearing voices, the “allegations were ruled out and the case was closed.”
In 2018, the Department investigated the family again, citing allegations of the
children’s prior “sexual acting out behaviors,” Mother’s mental-health diagnoses (including
bipolar disorder), the children’s diagnoses and special needs (including ADHD, bipolar disorder,
and autism), Mother’s illegal drug use and prior noncooperation with Maine CPS, and Mother’s
“absconding from Maine with the children” without informing Maine CPS of her whereabouts.
Despite these concerns, the case was “ruled out” because the “[a]buse and [n]eglect did not occur
in Texas.” Nonetheless, there was “considerable concern that lead [sic] the case to be transferred
to Family Based [Safety] Services [(FBSS)] in October 2018.” Mother “reluctantly participated”
in FBSS, and neither she nor Father M. “consistently took advantage of any of the offered
services” such as counseling, daycare, and substance-abuse assistance. Further, Mother “did not
allow the children to receive counseling” and was “combative” during the FBSS period. When
the Department investigated the December 2019 allegation of Mother’s abuse of Sam, it received
reports of Sam riding a bicycle in cold weather wearing only a t-shirt and underwear and David
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being sent to school in a sweater that “smelled of urine.” The investigator’s affidavit also
summarized detailed family CPS history from Maine and Vermont spanning 2008 to 2012.
After Mother was arrested in December 2019, the Department implemented a
safety plan with Father M. but shortly thereafter received reports that the children were
physically fighting and harming each other and that Father M. was improperly supervising them,
leaving them alone for over an hour on at least one occasion during which the children physically
injured one another. The investigator’s affidavit noted that the children were “not taking
prescribed medication” or receiving “any mental treatment” despite each having ongoing mental-
health and behavioral problems. After investigating the reports of Father M.’s inadequate
supervision, the Department removed the children from the home and filed its petition.
A final hearing before an associate judge occurred in January 2021, after which
the associate judge determined that all three parents’ rights to the children should be terminated.
Father M. requested a de novo hearing, and the district court conducted the de novo hearing in
February 2021.2 See Tex. Fam. Code § 201.015 (addressing de novo hearing before referring
court); see also In re A.L.M.-F., 593 S.W.3d 271, 280 (Tex. 2019) (noting that de novo hearing is
“an extension of the original trial on the merits” and “[i]ssues not specified [by party requesting
hearing] need not be reviewed”). After the de novo hearing, the district court adopted all of the
associate judge’s rulings and rendered a “De Novo Decree of Termination” on April 14, 2021.
Mother timely filed a notice of appeal.
2
Mother did not request a de novo hearing. Father L., although served and duly and
properly notified, never appeared in the case and defaulted.
4
SUMMARY OF EVIDENCE
Final hearing
At the final hearing, Department conservatorship worker Courtney Robinson and
Father M. testified, and the trial court admitted into evidence the removal affidavit, Mother’s
and Father M.’s family service plans, the results of a drug-test performed on a urine specimen
taken from Mother in April 2020, an affidavit supporting the Department’s 2015 removal of the
children,3 the Department’s January 2021 final report to the court, Mother’s 2015 psychiatric
evaluation performed by Dr. Samuel Shapiro, and reports summarizing psychological
evaluations of Mother and Father M. performed in April 2020 by Dr. James N. Shinder. Court-
appointed counsel represented Mother at the final hearing, but Mother was incarcerated and
did not appear.
Robinson testified about the children’s current placements and any special needs
they had: Margaret was in a foster home and had no specialized needs; Sam was in a residential
treatment center working to address his difficulty with focusing, aggression, and reluctance
to communicate; Nancy was in a therapeutic family foster home working to decrease the
amount and intensity of her “outbursts”; David was in a foster home working on decreasing his
“outbursts” through therapy; and Madison and Ryan were in a foster home together where they
were both doing well and had no special needs.
3
In this earlier removal affidavit, the Department investigator averred that Mother had
“admitted to smoking marijuana while pregnant with [Madison]” and that Mother’s probation
“was revoked because of her admitted marijuana use.” Also, Mother by her “own admission”
had “diagnosed mental health problems that she is currently not being treated for” and had
“caused physical injury to one of her children at a young and vulnerable age” for which injury
Mother did not seek treatment. Also, Margaret and Sam had “severe case[s] of lice that had been
untreated for months despite [Mother] being provided with lice treatment.”
5
Robinson testified that Mother was presently incarcerated with a pending felony
charge for injury to a child and had a prior conviction for injury to a child. Mother had been
released on bond for the current charge and had lived with Father M. during that time but in
April 2020 tested positive for methamphetamine on a Department-ordered drug test and was
returned to jail for violating her bond. Robinson testified that there were “significant portions”
of this case during which Mother was not incarcerated and could have completed the
requirements in her court-ordered family service plan. However, Mother completed only a
psychological evaluation and an OSAR (outreach, screening, assessment, and referral for issues
related to substance abuse). Among requirements Mother did not complete were the following:
successful discharge from individual counseling, supervised visitation with the children,
abstaining from use of illegal drugs, submitting to weekly drug tests, and following the
recommendations outlined in her psychological evaluation.
Robinson explained that the Department’s permanency plan for all six children
was non-relative adoption. Although it was unlikely that they would all be adopted by one
family, and none of the children were yet in a foster home that was available to adopt them, the
Department was hopeful that at least some of the children might be adopted together, especially
the youngest two. Robinson testified that although the children had “severe” aggression and
discipline issues when they came into the Department’s care, each of them had been able to
“decrease their behaviors” in the time they had been in foster homes and therapeutic settings,
which are “healthy environments.” She believed that the children would have a “strong
possibility of being adopted” as their issues continued to be addressed in their placements. She
explained that although the two youngest were in therapy, they did not have any “behavior
issues” that might prevent them from being adopted.
6
The guardian ad litem opined that termination of the parents’ rights would be in
the children’s best interests and would prevent the children from “languishing in the system
until they turn 18.” She explained that the children had made “amazing progress” while in the
Department’s care.
De novo hearing
At the de novo hearing, Robinson testified similarly as to how she did at the
final hearing and additionally that the children “need protection from their mother.” Father M.
testified that he had been present when Mother “disciplined” two of the children by spanking them
on two occasions and that Mother had done “good things” with the children in his presence but
that he did not know what she had done when he was not present. The children’s guardian ad litem
testified that she believed the court should terminate the rights of all three parents. She also
testified that the youngest two children had no physical or mental conditions that would “hinder
them from being adopted” and that she did not see “any problem” with finding permanent
placements for all the children even though none of them were yet in their “forever home.”
DISCUSSION
To terminate a parent’s rights to her child, the Department must prove by clear
and convincing evidence that she engaged in conduct that amounts to at least one statutory
ground for termination pursuant to section 161.001 and that termination is in the child’s best
interest. Tex. Fam. Code § 161.001(b); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). Clear
and convincing evidence is proof “that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.
Code § 101.007; In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). The factfinder, “having full
7
opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the
credibility and demeanor of witnesses,” and we therefore defer to the factfinder’s decisions.
In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). “The distinction between legal and factual
sufficiency lies in the extent to which disputed evidence contrary to a finding may be
considered.” A.C., 560 S.W.3d at 630. In reviewing legal sufficiency, we do not ignore
undisputed evidence contrary to the finding but otherwise assume the factfinder resolved
disputed facts in favor of its finding. Id. at 630-31. In reviewing factual sufficiency, we weigh
the disputed evidence contrary to the finding against all the evidence favoring the finding and
ask whether the disputed evidence is such that a reasonable factfinder could not have resolved it
in favor of the finding. Id.
Termination of the parent-child relationship may be ordered under subsection (D)
if clear and convincing evidence establishes that the parent has “knowingly placed or knowingly
allowed the child to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child,” Tex. Fam. Code § 161.001(b)(1)(D), and under subsection
(E) if the evidence establishes that the parent “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,” id. § 161.001(b)(1)(E). The Department does not have to prove that the conduct was
directed at the child or that the child suffered an actual injury. In re E.N.C., 384 S.W.3d 796,
803 (Tex. 2012). Subsection (D) focuses on the child’s environment, while subsection (E)
focuses on the parent’s conduct and asks whether the parent engaged in a voluntary, deliberate,
and conscious course of conduct that endangered the child. V.P. v. Texas Dep’t of Fam. &
Protective Servs., No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4,
2020, no pet.) (mem. op.).
8
We consider a trial court’s finding on best interest in light of the factors set out in
Holley v. Adams: the child’s wishes, if appropriate given the child’s age; her emotional and
physical needs now and in the future; present and future emotional or physical danger posed to
the child; the parenting skills of those seeking custody; any programs available to assist those
seeking custody to promote the child’s best interest; plans for the child’s future; the stability of
the home or proposed placement; conduct by the parent that might show that the parent-child
relationship is inappropriate; and any excuses for the parent’s conduct. 544 S.W.2d 367, 371-72
(Tex. 1976). The Holley factors are not exhaustive, not all factors must be proved, and a lack of
evidence about some of the factors does not “preclude a factfinder from reasonably forming a
strong conviction or belief that termination is in the child’s best interest, particularly if the
evidence [was] undisputed that the parental relationship endangered the safety of the child.”
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).
Statutory-predicate grounds
As for statutory-predicate grounds supporting termination of parental rights, our
review of the record leads us to conclude that the evidence was legally and factually sufficient to
support the trial court’s finding that Mother engaged in conduct or knowingly placed the children
with persons who engaged in conduct that endangered the physical or emotional well-being of
the children. See Tex. Fam. Code § 161.001(b)(1)(E). Evidence showed that Mother had used
marijuana while pregnant, physically assaulted and injured some of the children, used excessive
physical discipline with the children, left illegal drugs in the children’s reach and used drugs in
their presence, been previously convicted for causing injury to one of her children, absconded
from another state with the children without notifying the state’s child-welfare agency as she was
9
required to do, exhibited symptoms of mental illness, admitted she had mental-health needs but
was not taking medications for them, tested positive for methamphetamine during the case
and repeatedly refused to test during the case, failed to complete most of her court-ordered
services, been only minimally cooperative during the FBSS period, refused to allow the children
to attend therapy, failed to address the children’s extensive special needs, and been incarcerated
in the past and was currently incarcerated. Because the evidence is sufficient to support the
court’s finding under subsection (E), we need not consider whether the evidence also supports
the findings under subsections (D) or (O). See Spurck v. Texas Dep’t of Fam. & Protective
Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.).
Best interests
As for the best interests of the children, the trial court considered the above-cited
evidence demonstrating that Mother had: physically abused one or more of the children on more
than one occasion and in front of the other children, used illegal drugs in front of the children
and while caring for them, failed to address her own mental-health issues or the significant
special needs and behavioral issues of her children, and not demonstrated any significant
progress on addressing the Department’s serious concerns about her ability to safely care for her
children and tend to their well-being for many years. The children had been improving with
respect to their behavioral and special needs while in the Department’s care, and the Department
planned to find “forever homes” for the children via adoption. Weighing the evidence presented
under the Holley factors and bearing in mind the trial court’s role as factfinder, we conclude that
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sufficient evidence supports the court’s finding that termination of Mother’s parental rights is in
the children’s best interest.4 See C.H., 89 S.W.3d at 27; Holley, 544 S.W.2d at 371-72.
CONCLUSION
Having overruled Mother’s issues, we affirm the trial court’s decree of termination.
__________________________________________
Thomas J. Baker, Justice
Before Chief Justice Byrne, Justices Baker and Smith
Affirmed
Filed: July 21, 2021
4
We conclude so despite Mother’s three arguments about “other relevant factors”
beyond those expressly listed in Holley that purportedly weigh against termination: (1) potential
placement of the children with a maternal aunt in Hawaii required the court to sua sponte order
a home study on the aunt (however, Mother never suggested her sister as a placement option,
and Father M. only did so about a month before trial; Mother cites no authority requiring or
permitting the trial court to order such a study; and Mother did not complain about this issue to
the trial court); (2) there had been no recommendations from the children’s therapists since July
2020 about what would be in their best interest (however, the Department need not present
evidence of all potential best-interest factors); and (3) the court interpreter, through whom Father
M. testified, was not “certified” (however, neither Mother nor any other party objected to the
lack of certification and instead affirmatively waived any such complaint).
11