in the Interest of J.C.M., a Child ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00079-CV
IN THE INTEREST OF A.N.M., A CHILD
From the County Court at Law
Ellis County, Texas
Trial Court No. 92813CCL
and
IN THE
TENTH COURT OF APPEALS
No. 10-17-00081-CV
IN THE INTEREST OF J.C.M., A CHILD
From the County Court at Law
Ellis County, Texas
Trial Court No. 91157CCL
MEMORANDUM OPINION
In numerous issues in appellate cause numbers 10-17-00079-CV and 10-17-00081-
CV, appellants, Amy and Doug, challenge the trial court’s orders terminating their
parental rights to their children, A.N.M. and J.C.M.1 Because we overrule all of Amy and
Doug’s issues in both appeals, we affirm the judgments of the trial court.2
I. AMY AND DOUG’S MOTIONS TO DISMISS AND THE TRIAL COURT’S
MONITORED-RETURN ORDERS
In her first three issues in both appellate cause numbers, Amy challenges the trial
court’s monitored-return orders, as well as the trial court’s denial of her motions to
dismiss. In his first two issues in appellate cause number 10-17-00081-CV, the case
involving J.C.M., Doug also complains about the trial court’s monitored-return orders
and the denial of his motion to dismiss. Specifically, the parties contend in these issues
that the trial court should have granted their motions to dismiss because “[o]nce the trial
court revoked the order for monitored return[,] the previous deadlines came back into
effect. At the moment the trial court revoked the order for monitored return[,] the case
1 We use the pseudonyms Amy and Doug for the mother and father of the children in compliance
with the requirement of Texas Rule of Appellate Procedure 9.8 to protect the identities of the parties. See
TEX. R. APP. P. 9.8. Furthermore, as this is a memorandum opinion and the parties are familiar with the
facts, we only recite those necessary to the disposition of the case. See id. at R. 47.1, 47.4.
2 The Department filed one brief addressing all issues brought forth by Amy and Doug in both
appellate cause numbers. Accompanying the Department’s brief in both cause numbers are motions to
exceed the word limit. Specifically, the Department requests permission to exceed the word limit by 3,150
words. Given that the Department has filed one brief addressing all issues raised in both appellate cause
numbers by both parents, we grant both motions.
In the Interest of A.N.M. & J.C.M., children Page 2
had already went past the previous deadlines.” The parties further argue that the trial
court did not have authority to fix the deadline problem, but rather could only dismiss
the lawsuits. In addition, Amy independently argues that the trial court erred in ordering
a “conditional” monitored return.3
A. Applicable Law
“A motion to dismiss a case is a matter ordinarily addressed to the sound judicial
discretion of the trial court.” In re C.T., No. 12-11-00384-CV, 2012 Tex. App. LEXIS 8248,
at *6 (Tex. App.—Tyler Sept. 28, 2012, pet. denied) (mem. op.) (citing City of Waco v. Tex.
Coffin Co., 472 S.W.2d 800, 804 (Tex. App.—Waco 1971, writ ref’d n.r.e.)). “Therefore, we
review the trial court’s ruling on a motion to dismiss for an abuse of discretion.” Id.
(citing Tex. Coffin Co., 472 S.W.2d at 804); see, e.g., In re K.E., No. 07-13-00082-CV, 2013 Tex.
App. LEXIS 11270, at *3 (Tex. App.—Amarillo Aug. 30, 2013, no pet.) (mem. op.)
(applying an abuse-of-discretion standard to a determination of the dismissal date under
chapter 263 of the Family Code); In re M.D.W., No. 02-13-00013-CV, 2013 Tex. App. LEXIS
7956, at **12-13 (Tex. App.—Fort Worth June 27, 2013, pet. denied) (mem. op.) (per
curiam). A trial court abuses its discretion if it acts arbitrarily or unreasonably. See
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); see also In re C.T.,
2012 Tex. App. LEXIS 8248, at *3.
3We recognize that many of the arguments made by Amy and Doug in these issues were
previously raised in petitions for writ of mandamus that this Court denied. However, because of the
summary nature of the denial of the petitions for writ of mandamus, we will address these issues here.
In the Interest of A.N.M. & J.C.M., children Page 3
B. Analysis
In appellate cause number 10-17-00081-CV, the Department filed its original
petition to terminate Amy and Doug’s parental rights as to J.C.M. and another child that
is not the focus of this appeal on March 9, 2015.4 In a subsequent permanency-hearing
order signed on August 27, 2015, the trial court set the dismissal date for the suit as March
14, 2016, as required by section 263.401(a) of the Family Code. See TEX. FAM. CODE ANN.
§ 263.401(a) (West Supp. 2016). On January 28, 2016, the trial court signed an order
retaining the suit on the court’s docket and extending the dismissal date pursuant to
section 263.401(b) of the Family Code until September 5, 2016. See id. § 263.401(b). In July
2016, Amy and Doug each filed motions requesting the monitored return of J.C.M.
Thereafter, on August 17, 2016, the trial court signed an order for monitored return,
wherein the trial court denied Doug’s request for monitored return but granted a
monitored return to Amy. As a result of this order, the dismissal date was extended to
February 13, 2017, pursuant to section 263.403(b) of the Family Code. See id. § 263.403(b)
(West 2014).
Among the conditions of the order for monitored return was that Amy must
provide the Department with her work schedule and a child-care plan and ensure that
J.C.M. had no contact with Doug. Because Doug failed to leave her home, Amy filed a
motion on August 31, 2016, seeking to modify the order for monitored return to allow
4 The Department filed its termination petition as to A.C.M. on December 16, 2015.
In the Interest of A.N.M. & J.C.M., children Page 4
her more time to comply with the order and to enable placement. On September 15, 2016,
the trial court granted the modification request and ordered that J.C.M. be placed with
Amy on September 16, 2016.
When delivery of J.C.M. was attempted at Amy’s home on September 16, 2016, the
Department learned that Doug continued to reside at the home, which constituted a
violation of the conditions of the monitored-return order. Therefore, on September 16,
2016, the Department filed a motion to revoke the monitored-return order and to set a
new dismissal date. In its motion, the Department recounted the unsuccessful monitored
return and requested that the dismissal date be reset to March 13, 2017.
On September 22, 2016, the trial court entered its “Order Revoking Monitored
Return and Setting New Dismissal Date” with the following findings:
THE COURT FINDS pursuant to §263.403(c) of the Texas Family Code that
the child was unable to be placed into the home of [Amy] on or before
September 1, 2016 and also on or before September 16, 2016, due to failure
of the parents to comply with the requirements as set forth in the Order for
Monitored Return on August 17, 2016, and/or Order Modifying Monitored
Return on September 15, 2016.
THE COURT FURTHER FINDS that the child’s parents are
unwilling or unable to provide the child with a safe environment at this
time. Therefore, [J.C.M.] requires substitute care at this time.
(Emphasis in original). The trial court then found “pursuant to §263.403(c) of the Texas
Family Code that a new dismissal date, being a date not later than the 180th day after the
date the child is moved from the home of the parent, being September 16, 2016, the date
In the Interest of A.N.M. & J.C.M., children Page 5
of failed placement, under §263.403(c), shall be scheduled” and scheduled the new
dismissal date as March 15, 2017.
Shortly thereafter, Amy and Doug filed separate motions to dismiss, alleging that
the trial court’s entry of the “Order Revoking Monitored Return and Setting New
Dismissal Date” nullified the original monitored-return order and that the case was now
beyond the dismissal date established under section 263.401 of the Family Code. In a
letter dated October 11, 2016, the trial judge noted the following:
It was not the Court’s intention, nor the legal effect, that the Order Revoking
the Monitored Return legally nullify the entire prior Orders. Even
assuming arguendo that nullification was the effect of the September 22 nd
Order, we are still within the 20 day restricted appeal window. To remove
any uncertainty that may exist for the parties, I have this day entered an
Order Vacating Order Revoking Monitored Return and Setting New
Dismissal Date. The parents should pursue compliance with the Monitored
Return Orders with all due haste.
The trial court then denied both Amy and Doug’s motions to dismiss and entered an
order vacating the “Order Revoking Monitored Return and Setting New Dismissal Date.”
In its order, the trial court specifically mentioned that the controlling orders in place are
the August 17, 2016 monitored-return order and the September 15, 2016 order modifying
monitored return.5
Section 263.401 of the Family Code provides that the Department’s lawsuit
requesting termination of parental rights must be dismissed on the first Monday after the
5 On appeal, Amy and Doug do not challenge the August 17, 2016 and September 15, 2016 orders.
In the Interest of A.N.M. & J.C.M., children Page 6
first anniversary of the date the court rendered the first temporary order naming the
Department as temporary managing conservator unless the court has commenced a trial
on the merits or granted a one-time extension under subsection (b). See TEX. FAM. CODE
ANN. § 263.401; see also In re A.H.J., No. 05-15-00501-CV, 2015 Tex. App. LEXIS 10440, at
*5 (Tex. App.—Dallas Oct. 8, 2015, pet. denied) (mem. op.). Notwithstanding section
263.401, however, the trial court may retain jurisdiction of a case if it: (1) finds that the
retention is in the best interest of the child; (2) orders a Department-monitored return of
the child to a parent; and (3) continues the Department as temporary managing
conservator of the child. See TEX. FAM. CODE ANN. § 263.403(a); see also In re A.H.J., 2015
Tex. App. LEXIS 10440, at **5-6.
If a child placed with a parent under this section must be moved from that
home by the department before the dismissal of the suit or the
commencement of the trial on the merits, the court shall, at the time of the
move, schedule a new date for dismissal of the suit unless a trial on the
merits has commenced. The new dismissal date may not be later than the
original dismissal date established under Section 263.401 or the 180th day
after the date the child is moved under this subsection, whichever date is
later.
TEX. FAM. CODE ANN. § 263.403(c).
Here, despite the titling of the complained-of orders, the record reflects that it was
the trial court’s intent to conclude any efforts by the Department to place the child with
Amy and not to divest itself of jurisdiction over the suit. See Ryland Enter., Inc. v.
Weatherspoon, 355 S.W.3d 664, 666 (Tex. 2011) (emphasizing that “courts should
acknowledge the substance of the relief sought despite the formal styling of the pleading”
In the Interest of A.N.M. & J.C.M., children Page 7
(citing TEX. R. CIV. P. 71; State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980))); see
also In re A.H.J., 2015 Tex. App. LEXIS 10440, at *10 (“It is the content of the order rather
than its label that controls our analysis.”). This is especially true in light of the trial court’s
clarification letter dated October 11, 2016.
However, despite the foregoing, Amy argues, without citation to authority, that
section 263.403 does not provide for “conditional returns” and that a child should not be
placed in the home if there are conditions or existing concerns. See id. Amy further argues
that section 263.403(c) requires “strict compliance” and attempts to blame the
Department for the failure to place the child back in her home. See id. The record
demonstrates that the trial court ordered J.C.M. returned to Amy’s house on two different
occasions. On the last occasion, September 16, 2016, the Department effectively removed
the child from placement with Amy because of her failure to comply with the trial court’s
order requiring no contact between the child and Doug—a registered sex offender.
Therefore, the removal of J.C.M. from placement with Amy authorized the trial court to
set a new dismissal date pursuant to section 263.403(c). See id.
Nevertheless, even if we were to conclude that the trial court was not authorized
to schedule a new dismissal date pursuant to section 263.403, nothing in the statute
indicates that dismissal is an appropriate or necessary remedy. See id. In fact, the Texas
Supreme Court has noted that the statutory dismissal dates in termination cases are not
jurisdictional. See In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009);
In the Interest of A.N.M. & J.C.M., children Page 8
see also In re J.B.W., 99 S.W.3d 218, 224 n.27 (Tex. App.—Fort Worth 2003, pet. denied.
Moreover, nothing in section 263.403 suggests that the failure to schedule a new dismissal
date upon the children’s return to foster care results in dismissal of the suit if trial has not
commenced by the previous dismissal date. See, e.g., L.H. v. Tex. Dep’t of Family &
Protective Servs., No. 03-15-00673-CV, 2016 Tex. App. LEXIS 1838, at *10 (Tex. App.—
Austin Feb. 24, 2016, no pet.) (mem. op.) (“The statute [section 263.403] does not,
however, provide a consequence for a trial court’s failure to schedule a new date at the
time of the move.”); In re A.H.J., 2015 Tex. App. LEXIS 10440, at *9 (“The former statute
explicitly stated that if the trial court failed to make specific findings of extraordinary
circumstances, it must dismiss the suit. While certain findings are required by section
263.403, unlike the former section 263.401(b) at issue in J.H.G., there is nothing in section
263.403 suggesting the failure to make such findings would preclude retention of the case
on the docket. We conclude the trial court’s October 2 oral rendition was sufficient to
maintain the case on its dockets pursuant to section 263.403 and was timely rendered
before the October 6 dismissal date. Accordingly, the trial court did not err in denying
appellant’s motion to dismiss.” (internal citation omitted)); In re J.C.J., 2006 Tex. App.
LEXIS 7169, at **14-16 (Tex. App.—Dallas Aug. 15, 2006, not pet.) (mem. op.) (“Father’s
argument is premised on the assumption that the statutory requirement that the trial
court schedule a new dismissal date upon the child’s return to foster care is jurisdictional.
However, just because a statutory requirement is mandatory does not mean it is
In the Interest of A.N.M. & J.C.M., children Page 9
jurisdictional. The issue is what consequences follow the failure to comply, and nothing
in section 263.403 suggests that the failure to schedule a new dismissal date upon the
children’s return to foster care results in dismissal of the suit if no final order is rendered
by the previous dismissal date. Father’s contention to the contrary mistakenly rests on
the requirement in section 263.401(b) that the court cannot retain a termination suit on its
docket unless it renders an order which, among other things, includes a new dismissal
date. No such language is contained in section 263.403.” (internal citations & emphasis
omitted)).
Therefore, based on the foregoing, and because the February 13, 2017 deadline
stated in the unchallenged August 17, 2016 order for monitored return had not yet
arrived, we cannot conclude that the trial court abused its discretion in denying Amy and
Doug’s motions to dismiss. 6 See Tex. Coffin Co., 472 S.W.2d at 804; see also In re C.T., 2012
Tex. App. LEXIS 8248, at *6; In re D.O.A.I., Nos. 11-16-00141-CV, 11-16-00142-CV, & 11-
16-00143-CV, 2016 Tex. App. LEXIS 12655, at *5 (Tex. App.—Eastland Nov. 30, 2016, no
pet.) (mem. op.) (per curiam) (concluding that the trial court did not err in denying
6 In the alternative, we also note that the trial court has plenary power over interlocutory orders
and has the power to set those orders aside any time before a final judgment is entered. See Fruehauf Corp.
v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (“A trial court has plenary power over its judgment until it becomes
final. The trial court also retains continuing control over interlocutory orders and has the power to set
those orders aside any time before a final judgment is entered.” (internal citations omitted)). Thus, the trial
court had plenary power to correct, amend, or clarify the complained-of interlocutory order here—the
order vacating the “Order Revoking Monitored Return and Setting New Dismissal Date.” See, e.g., In re
A.H.J., No. 05-15-00501-CV, 2015 Tex. App. LEXIS 10440, at *10 (Tex. App.—Dallas Oct. 8, 2015, pet. denied)
(mem. op.) (“Consequently, the trial court was not limited to correcting clerical error[s] and clearly retained
the power to correct the October 16 order.”).
In the Interest of A.N.M. & J.C.M., children Page 10
appellant’s motions to dismiss based on section 243.403(c) when the dismissal date, as set
by order of the trial court, had not yet arrived when appellant filed her motions to
dismiss). Accordingly, we overrule Amy’s first three issues in both appellate cause
numbers and Doug’s first two issues in appellate cause number 10-17-00081-CV.
II. SUFFICIENCY OF THE EVIDENCE SUPPORTING THE BEST-INTEREST FACTORS
In their remaining issues, Amy and Doug challenge the trial court’s best-interest
finding as to both children. Specifically, Amy and Doug highlight conflicts in the
testimony and assert witness bias in an attempt to show that the evidence supporting the
trial court’s best-interest finding is insufficient. We disagree.
A. Applicable Law
In proceedings to terminate the parent-child relationship brought under section
161.001 of the Family Code, the petitioner must establish one predicate act listed under
subsection (b)(1) of the statute and that termination is in the best interest of the child. TEX.
FAM. CODE ANN. § 161.001 (West Supp. 2016); see 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).
Termination decisions must be supported by clear and convincing evidence. TEX.
FAM. CODE ANN. §§ 161.001, 161.206(a) (West 2014). 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
In the Interest of A.N.M. & J.C.M., children Page 11
the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West 2014).
Due process demands this heightened standard because termination results in
permanent, irrevocable changes for the parent and child. In re J.F.C., 96 S.W.3d 256, 263
(Tex. 2002); see In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007).
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 convictions that the grounds for termination were proven. In re J.P.B., 180 S.W.3d
570, 573 (Tex. 2005). We review all the evidence in the light most favorable to the finding
and judgment. Id. We resolve any disputed facts in favor of the finding if a reasonable
factfinder could have done so. Id. We disregard all contrary 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. Id. We cannot weigh witness-credibility issues that depend on the
appearance and demeanor of the witnesses, for that is the factfinder’s province. Id. at
573-74. And even when credibility issues appear in the appellate record, we defer to the
factfinder’s determination, as long as they are not unreasonable. Id. at 573.
In reviewing the factual sufficiency of the evidence supporting termination, we
give due deference to the factfinder’s findings and do not supplant the judgment with
our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the
In the Interest of A.N.M. & J.C.M., children Page 12
entire record, a factfinder could reasonably form a firm conviction or belief that the parent
violated section 161.001(b)(1) and that the termination of the parent-child relationship
would be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001; 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. In re H.R.M., 209 S.W.3d at 108.
In both appellate cause numbers, the trial court determined that the Texas
Department of Family and Protective Services established numerous predicate acts or
omissions under section 161.001(b)(1) of the Family Code committed by Amy and Doug.
However, on appeal, Amy and Doug do not challenge the predicate grounds for
termination. See In re C.H., 89 S.W.3d at 28 (holding that the same evidence may be
probative of both section 161.001(b)(1) predicate grounds and the best-interest grounds);
In re S.L., 421 S.W.3d 34, 37 (Tex. App.—Waco 2013, no pet.) (“An unchallenged finding
of a predicate violation is binding and will support the trial court’s judgment, and we
may affirm the termination on that finding and need not address the other grounds for
termination.”); see also In re G.S., No. 14-14-00477-CV, 2014 Tex. App. LEXIS 10563, at *30
(Tex. App.—Houston [14th Dist.] Sept. 23, 2014, no pet.) (mem. op.) (“The unchallenged
predicate findings under section 161.001(1)(E), endangering conduct, are binding and
In the Interest of A.N.M. & J.C.M., children Page 13
may be considered as evidence related to the court’s best interest finding.”). Instead, they
focus on the sufficiency of the evidence supporting the trial court’s best-interest finding.
In determining the best interest of a child, a number of factors have been
considered, including: (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; (6) the plans for the child by these
individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may
indicate the existing parent-child relationship is not a proper one; and (9) any excuse for
the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
This list is not exhaustive, but simply indicates factors that have been or could be
pertinent. Id. at 372. 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. In re C.H., 89 S.W.3d at 27. On the other hand, the presence of scant evidence
relevant to each factor will not support such a finding. Id.
The Holley factors focus on the best interest of the child, not the best interest of the
parent. Dupree v. Tex. Dep't Prot. & Reg. Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995,
no writ). The goal of establishing a stable permanent home for a child is a compelling
state interest. Id. at 87. The need for permanence is a paramount consideration for a
In the Interest of A.N.M. & J.C.M., children Page 14
child's present and future physical and emotional needs. In re S.H.A., 728 S.W.2d 73, 92
(Tex. App.—Dallas 1987, writ ref'd n.r.e.) (en banc).
The same evidence proving acts or omissions under section 161.001(b)(1) of the
family code has been held to be probative of best interest of the child. In re C.H., 89 S.W.3d
at 28. Moreover, evidence of past misconduct or neglect can be used to measure a parent's
future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004,
pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) ("Past is
often prologue."); see also In re A.M., 385 S.W.3d 74, 82-83 (Tex. App.—Waco 2012, pet.
denied) (concluding that evidence of mother's history of neglecting and endangering
children by exposing them to domestic violence supported trial court's finding that
termination was in child's best interest). A parent’s history, admissions, drug abuse, and
inability to maintain a lifestyle free from arrests and incarcerations are relevant to the
best-interest determination. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001,
no pet.). Evidence of a recent improvement does not absolve a parent of a history of
irresponsible choices. See Smith v. Tex. Dep't Protective & Regulatory Servs., 160 S.W.3d
673, 681 (Tex. App.—Austin 2005, no pet.); see also In re T.C., No. 10-10-00207-CV, 2010
Tex. App. LEXIS 9685, at *20 (Tex. App.—Waco Dec. 1, 2010, pet. denied) (mem. op.).
B. Discussion
Here, witnesses testified to Doug and Amy’s history of drug use. See In re C.A.J.,
122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.) (noting that a parent’s
In the Interest of A.N.M. & J.C.M., children Page 15
continued drug use poses emotional and physical danger to the child now and in the
future); see also In re S.N., 272 S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.) (stating that
a parent’s illegal drug use is relevant to determining present and future risk to a child’s
physical and emotional well-being). Courtney Lovasz, a CPS caseworker, testified that
the Department became involved with J.C.M. after he tested positive for cocaine at birth.
Amy admitted to using cocaine “like a couple of times” while pregnant with J.C.M.,
including at least one time with Doug. At trial, Doug admitted to testing positive for
cocaine during the Department’s investigation and acknowledged that he signed a form
stating that he had used marihuana and cocaine around the time of J.C.M.’s birth. Amy
stated that she continued to use cocaine while pregnant with A.C.M., though she
emphasized that “[i]t was just like a couple of times.” Amy tested positive for cocaine on
a hair strand in August and December 2015. The record demonstrates that Amy did not
provide an excuse for her failure to show for a drug test on September 30, 2016, though
she did test negative for drugs and alcohol on July 22, September 22, and November 17,
2016, and January 11, 2017.
Lovasz further explained that Doug tested positive for: (1) cocaine in August 2015;
(2) marihuana and cocaine in December 2015; (3) cocaine in March 2016; and (4) alcohol
in July and November 2016. Doug testified that he used cocaine between February and
November 2015 and that he drank beer in 2015 through January 2016. Additionally, the
record reflects that Doug failed to show for court-ordered drug tests in September
In the Interest of A.N.M. & J.C.M., children Page 16
through November 2016 and January through February 2017. See In re C.R., 263 S.W.3d
368, 374 (Tex. App.—Dallas 2008, no pet.) (“The trial court could reasonably infer Davis
avoided taking the drug tests because she was using drugs.” (citing In re J.T.G., 121
S.W.3d 121, 131 (Tex. App.—Fort Worth 2003, no pet.))). Doug also conceded that he was
prohibited from cutting, coloring, or altering his hair but acknowledged that he had done
so.
In addition to their troubles with drugs, both Amy and Doug had extensive
criminal histories. See In re R.W., 129 S.W.3d 732, 739 (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 physical and emotional well-being of a child.”); see also In re
A.W., No. 06-07-00118-CV, 2008 Tex. App. LEXIS 996, at **9-10 (Tex. App.—Texarkana
Feb. 12, 2008, no pet.) (mem. op.) (“The evidence of Wardsworth’s repeated incarcerations
suggests that he would likely be unable to meet the emotional and physical needs of A.W.
now and in the future and that his parenting skills are seriously suspect.”); Karl v. Tex.
Dep’t of Protective & Regulatory Servs., No. 03-03-00655-CV, 2004 Tex. App. LEXIS 6288, at
*11-12 (Tex. App.—Austin July 15, 2004, no pet.) (mem. op.) (noting that a parent’s
engaging in criminal conduct endangers the emotional well-being of a child because of
the parent’s resulting incarceration). Amy was twice caught shoplifting at Wal-Mart in
New Mexico in the presence of her older child. Amy also confirmed that she had been
In the Interest of A.N.M. & J.C.M., children Page 17
arrested for ten felony counts of issuing worthless checks in New Mexico. As a result of
these crimes, Amy’s parental rights to her oldest child were terminated.7
Doug’s criminal history includes: (1) a 1991 conviction for aggravated sexual
assault of a child under fourteen years of age; and (2) a 2004 conviction for assaulting his
brother. The record also contained criminal complaints against Doug pertaining to
driving while intoxicated in 2007 and 2009, battery of a household member in 2008 and
2012, a 2011 public affray that was originally filed as battery against a household member,
and driving with a suspended license in 2013. Additionally, during the pendency of the
proceedings, Doug was under indictment for failing to register as a sex offender.
Additionally, both Amy and Doug failed to comply with numerous orders of the
trial court. Doug has eight children with several different women. He admitted that he
has a duty to support all of his eight children, including those involved in these cases;
however, Doug stated that he has not paid child support for any of his children.
Furthermore, as mentioned above, the Department attempted a monitored return of the
children. But because Doug failed to leave the home, both Amy and Doug violated the
terms of the order for monitored return. The record also shows that neither Amy nor
Doug completed their court-ordered service plans. Doug emphasized that he completed
his sex-offender services and parenting classes, though he could not recall when he
attended court-ordered classes for Alcoholics Anonymous, Narcotics Anonymous, or
7 Amy’s oldest child has been adopted by her mother, who lives in New Mexico.
In the Interest of A.N.M. & J.C.M., children Page 18
Celebrate Recovery.8 See, e.g., In re C.C., 2016 Tex. App. LEXIS 12277, at **39-40 (Tex.
App.—Waco Nov. 16, 2016, no pet.) (mem. op.) (“A factfinder may infer that a parent’s
failure to complete her court-ordered services, and in particular drug-treatment services,
indicate a continuing danger to the children.” (citing In re B.A., No. 04-13-00246-CV, 2013
Tex. App. LEXIS 10841, at **4-5 (Tex. App.—San Antonio Aug. 28, 2013, no pet.) (mem.
op.))). Moreover, as noted in the trial court’s findings of fact and supported by the record,
Amy “failed to comply with the family service plan requirement to attend Narcotics
Anonymous/Alcoholics Anonymous/Celebrate Recovery and document all attendance to
the assigned caseworker.” Nevertheless, Amy did attend some counseling classes,
though counselor Philip Garvin testified that Amy has a tendency to relapse into drug
use in the instances when Doug also relapses. And finally, in violation of the trial court’s
temporary orders in these cases, both Amy and Doug failed to provide to the Department:
(1) copies of their income-tax returns for the past two years or bank statements; and (2) a
Medical History Report.
The record also includes testimony from Amy’s mother and the foster-care mother
of the children indicating that Amy is afraid of Doug and that Amy and Doug lack the
wherewithal to support the children.9 See In re O.R.F., 417 S.W.3d 24, 39 (Tex. App.—
8Counselor Philip Garvin opined that he was unsure if Doug would be able to remain drug free
because of Doug’s relapse “at such a critical point in his first case, I’m not sure if he would continue to
make those right decisions or not.”
9Witnesses also recounted a bruise on Amy’s face that occurred after Amy and Doug attended an
outing with Doug’s family. The foster-care mother testified that Amy told her that Doug’s family beat her
In the Interest of A.N.M. & J.C.M., children Page 19
Texarkana 2013, no pet.) (noting that evidence offered to prove grounds for termination,
the amount of contact between the natural parents and child, the natural parent’s ability
to provide support, and the quality of care rendered by the child’s caregiver are all
relevant to determining if termination is in the best interest of the child (citing In re C.H.,
89 S.W.3d at 28))); see also In re C.C., 2016 Tex. App. LEXIS 12277, at **40-41 (“A parent’s
failure to show that he or she is stable enough to parent children for any prolonged period
entitles the factfinder to determine that this pattern would likely continue and that
permanency could only be achieved through termination and adoption. A factfinder may
also consider the consequences of its failure to terminate parental rights and that the best
interest of the children may be served by termination so that adoption may occur rather
than the temporary foster-care arrangement that would result if termination did not
occur.” (internal citations & quotations omitted)). Throughout the case, Amy has been
unable to provide the Department with an adequate plan for child care while she works.
Moreover, Amy is afraid of losing the house if Doug is no longer allowed to live there.
The Department also presented evidence that the children are thriving in their
current placement and that they have overcome drug withdrawals that were present at
the time of birth. The foster-care mother indicated an intent to adopt the children. Penny
Casebolt, the Court Appointed Special Advocate for the children, stated that the children
up; however, Amy denied this at trial and testified that she got caught in the middle of an altercation
between Doug’s family and other people.
In the Interest of A.N.M. & J.C.M., children Page 20
appear to be “comfortable” in their placement and that the children have stability with
the foster-care mother. Casebolt believed that the children had bonded with the foster-
care mother, not Amy and Doug. Casebolt recounted that Doug had not visited the
children since July 2016, despite her observation of Doug in his front yard during his
scheduled visitation.
Based on our review of the record, we find that the above-mentioned evidence
supports several of the Holley factors and that those factors weigh in favor of the trial
court’s order terminating Amy and Doug’s parental rights. Therefore, considering all the
evidence in relation to the Holley factors in the light most favorable to the trial court’s
best-interest finding, we hold that a reasonable factfinder could have formed a firm belief
or conviction that termination of Amy and Doug’s parental rights was in the children’s
best interest. See Holley, 544 S.W.2d at 371-72; see also In re J.P.B., 180 S.W.3d at 573. We
further hold that, viewing the evidence in a neutral light in relation to the Holley factors,
the trial court could have reasonably formed a firm belief or conviction that termination
was in the children’s best interest. See Holley, 544 S.W.2d at 371-72; see also In re C.H., 89
S.W.3d at 28. Accordingly, we conclude that the evidence is legally and factually
sufficient to support the trial court’s best-interest finding.10 As such, we overrule all of
Amy and Doug’s remaining issues.
10And to the extent that the parties complain that the Department’s witnesses were biased, we note
that such an argument implicates the credibility of the witnesses at trial. As noted earlier, we cannot weigh
In the Interest of A.N.M. & J.C.M., children Page 21
III. CONCLUSION
Having overruled all of Amy and Doug’s issues on appeal, we affirm the
judgments of the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 2, 2017
[CV06]
witness-credibility issues that depend on the appearance and demeanor of the witnesses, for that is within
the province of the factfinder. See In re J.P.B., 180 S.W.3d 570, 573-74 (Tex. 2005).
In the Interest of A.N.M. & J.C.M., children Page 22