A. J. R. v. Texas Department of Family and Protective Services ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00661-CV
NO. 03-19-00662-CV
A. J. R., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY
NO. C-19-0001-CPS & NO. 19-0003-CPS,
THE HONORABLE GARY L. BANKS, JUDGE PRESIDING
MEMORANDUM OPINION
A.J.R. (“Amanda”)1 appeals from a district court’s orders terminating her parental rights
to two children, arguing that the evidence is neither legally nor factually sufficient to support the
district court’s statutory-predicate and best-interest findings. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (O), (b)(2). We will affirm the orders.
GENERAL BACKGROUND
As relevant to this appeal, Amanda has three children: Emma, Hayden, and Ethan.2
Emma was born May of 2015. The Department of Family and Protective Services first began
1 We will use pseudonyms to refer to the mother, her boyfriends, the children, and the
foster family. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
2 The facts set forth in the background section are based on undisputed aspects of the
record. Amanda’s rights to Ethan are not at issue in this case.
investigating Emma’s safety in October of 2017 upon a report of possible child neglect and
abuse. At the time, two-year-old Emma was living with Amanda and Amanda’s boyfriend, Jeff.
Although Jeff is not Emma’s father, Amanda described herself, Jeff, and Emma as a family
“unit,” and Amanda was several months pregnant with his child at the time the investigation
commenced. Department investigator Tina Fernandez visited Amanda’s apartment on
October 26, 2017, and learned: Amanda was suffering complications from the pregnancy;
Amanda had recently received inpatient care at a nearby mental-health facility; Emma had stayed
with Amanda’s mother during the inpatient treatment; Jeff had a history of substance abuse and
was often “strung out” on methamphetamines; Emma had a visible injury to her head but was
otherwise healthy; Jeff and Amanda had conflicting stories as to how Emma sustained her head
injury; and Emma had sustained a previous injury—a fractured femur—while in the care of
Amanda’s former boyfriend, Arturo.
Amanda declined to let Fernandez into her apartment, describing it as “not clean,” but
agreed to a Safety Plan that required Amanda to find a safe and stable place to stay with Emma.
When Amanda failed to identify a suitable alternate residence after several attempts, the
Department filed a petition for conservatorship, obtained an order for protection of a child in an
emergency, and then removed Emma from the home in November of 2017.
The Department assigned Katie Wahrmund to serve as case worker, and she and Amanda
agreed to a Service Plan that outlined the steps Amanda would need to take to regain custody of
Emma. The Service Plan required Amanda to: participate in a psychological evaluation and a
substance abuse assessment; submit to random drug testing; undergo counseling “to address the
concerns that led to the removal”; enroll in parenting classes; stay in monthly contact with the
Department; maintain “a safe / stable home environment free of drugs / alcohol use, domestic
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violence[,] and criminal activity”; allow announced and unannounced visits to the home; obtain
and maintain a legal source of income; notify the Department of any changes in residence,
relationship, or employment within a few days of the change; and engage in visits with Emma as
arranged by the Department. The ultimate goal, at that point in time, was family reunification.
Hayden was born on January 3, 2018, while Emma was in foster care. Amanda identified
Jeff as Hayden’s father, and Jeff does not deny paternity. Amanda tested positive for marijuana
at her first pre-natal visit, but all subsequent tests came back negative for illegal substances.
Upon Hayden’s delivery, hospital staff transferred him to the neo-natal intensive care unit due to
multiple concerns about his health. Hayden remained hospitalized throughout January.
Meanwhile, the Department filed a petition for temporary protection and conservatorship. The
district court issued an order for protection of a child in an emergency on January 23, 2018, and
case workers removed Hayden from Amanda’s custody upon his discharge from the hospital.
The court later appointed Dori Wegner to serve as special advocate on behalf of Emma
and Hayden.
At some point in 2018, while Emma and Hayden were in foster care, Amanda learned she
was expecting again. After eviction from her apartment for failure to pay rent, Amanda moved
to Oklahoma in November and obtained employment with a hotel whose owners allowed her to
live onsite in an apartment assigned to her immediate supervisor, Charles. Amanda gave birth to
Ethan in January of 2019, and upon discharge she and Ethan began living with Charles in his
apartment. Three months later, authorities for the State of Oklahoma opened an investigation
into Ethan’s welfare. The case workers in Oklahoma ultimately closed the matter after
interviewing Amanda and Charles, reviewing notes from the Department’s investigation in
Texas, briefly removing Ethan from Amanda’s care, and ultimately concluding that reports of
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possible neglect were “unsubstantiated.” Although she lived and worked in Oklahoma, Amanda
maintained some contact with Wahrmund and would travel to Texas approximately every other
week for visitation with Emma and Hayden.
TERMINATION HEARING
The Department tried the two petitions3 for termination of parental rights to the bench
over three days in April, May, and June, 2019. Witnesses included:
• Mindy Young, the foster mother for Emma and Hayden;
• Tina Fernandez, the Department’s investigator;
• Katie Wahrmund, the Department’s case worker;
• Charles, Amanda’s supervisor and roommate in Oklahoma;
• Melissa Phillips, a welfare specialist for the State of Oklahoma;
• Dori Wegner, the court-appointed special advocate assigned to the case; and
• Amanda as Respondent.
Mindy Young
At the time of her testimony, Young and her husband were providing foster care for both
Emma and Hayden. She testified that Emma is happy and healthy and “doing well” but
described Emma’s increasing confusion as to her circumstances:
She’s having a lot of issues differentiating between who people are in her life.
She’s very confused. She’s been moved a few times. She still has trouble
understanding her relationship with [Amanda], her relationship with me, her
relationship with her previous foster mother. She’s just very confused.
3 The Department filed separate petitions for Emma and Hayden. Those petitions also
sought the termination of the respective fathers’ parental rights, which are not at issue on appeal.
4
She explained that she planned to seek pediatric counseling to help Emma work through these
issues. She added that Emma is “very bonded” to Hayden.
Young described caring for Hayden as extremely demanding due to his extensive medical
needs. As she understands it, Hayden’s developmental delays and birth defects were caused by a
combination of genetic anomalies and intra-uterine drug exposure.4 She testified that he requires
a specialized diet and the care of seven different physicians, plus weekly appointments for
physical therapy, occupational therapy, and speech therapy. She indicated that she hopes to
adopt Emma and Hayden but that doing so will require her to stay at home full time due to “all
his needs,” including recovery from multiple anticipated surgeries. She said she and her husband
have made a “joint decision” to have her “tak[e] time off away from [her] career” to manage
Hayden’s care. She then described a robust support network she and her husband would rely on
as needed to attend to Hayden’s needs.
Tina Fernandez
Fernandez offered testimony summarizing her investigation into Emma’s case. She
recounted her original visit to the home and what she learned that day. She testified that because
of Jeff’s history of drug use and because of her concerns about Emma’s recent head injury and
the broken bone that Emma had sustained while in the care of a prior boyfriend, Fernandez and
Amanda developed the Safety Plan whereby Amanda would find a suitable residence for herself
and Emma. They initially agreed that she would stay with a friend and that Amanda would
notify Fernandez of any change in residential status. Amanda, however, did not abide by this
4 The court allowed the testimony regarding possible pre-natal drug exposure as
evidence of the foster mother’s understanding of Hayden’s medical needs but not as evidence of
the possible exposure itself.
5
Safety Plan, leaving the designated residence after allegedly observing substance abuse on site.
She then stayed with various friends and family members and ultimately moved back into the
apartment with Jeff without notifying Fernandez. Upon locating Amanda, Fernandez obtained a
written admission that Jeff had used marijuana and methamphetamines within the week. She
also learned that Amanda had tested positive for marijuana during a recent pre-natal screening
(i.e., early in her pregnancy with Hayden). Fernandez explained that in researching possible
family placement for Emma, every candidate had a history of violence or substance abuse. She
ultimately concluded that Amanda “did not have any family that was safe for her or [Emma] to
stay with.” At that point, the Department removed Emma from the home and placed her with a
foster family.
Katie Wahrmund
Wahrmund offered testimony on her experiences and impressions as the case worker
assigned to Emma and Hayden’s respective cases. She described an incident in March of 2018
in which Amanda missed a scheduled family group conference because she had overslept.
Repeated phone calls to Amanda went unanswered, and several hours passed before Amanda
finally contacted the Department to explain why she had missed the conference. Wahrmund
testified that Amanda’s service providers had reported similar problems with absenteeism due to
oversleeping. She described multiple occasions on which she attempted to arrange a visit to the
home but received no answer or was told Amanda would need more time to get ready. By
May of 2018, the Department changed its ultimate goal from “family reunification” to
“termination and adoption.”
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According to Wahrmund, the Department’s increased emphasis on the possibility of
termination did not improve Amanda’s progress toward her goals or increase her compliance
with Service Plan requirements. Wahrmund described an incident in September of 2018 in
which Wahrmund and Wegner, the court-appointed special advocate, attempted an unannounced
visit to Amanda’s apartment. Amanda was around four or five months pregnant with Hayden at
this point. Wahrmund and Wegner knocked for thirty minutes without any answer. The
apartment manager ultimately intervened and allowed maintenance staff to enter the apartment,
where staff found Amanda in a deep sleep in the middle of the day. After she awoke, Amanda
agreed to let Wahrmund and Wegner into the apartment. Wahrmund provided photos of the
unsanitary and unsafe conditions she saw in the apartment that day, including one photo that she
testified appears to show marijuana and paraphernalia.5 Other photos show food, garbage, and
laundry strewn on nearly every surface of the apartment. Wahrmund described a strong smell of
marijuana and cigarette smoke, and Wegner described the overall scene as “deplorable.”
Wahrmund described a later incident in which Amanda’s brother and his girlfriend had
an altercation involving a firearm at Amanda’s apartment, leading law enforcement to enter the
apartment to investigate reports of a domestic dispute. She described Amanda’s brother as
emotionally unstable and described the brother and his “on-again–off-again girlfriend” as
relatively frequent visitors to Amanda’s apartment. Wahrmund was concerned when she learned
that the investigator in Oklahoma had encountered similar police reports and general resistance
5 Wahrmund explained that Amanda’s drug tests had all “c[o]me back negative on her”
and surmised that the drugs and paraphernalia likely belonged to Amanda’s brother or another
houseguest. She described Amanda’s frequent hosting of drug users as a “pattern of behavior”
throughout the case.
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to visits by welfare officials. She testified that she did not believe Amanda is able to maintain “a
safe and stable home.”
When asked to comment on Amanda’s ability to care for Hayden, Wahrmund expressed
skepticism that Amanda “understands, medically, all of the needs that [Hayden] has.” She
doubted that Amanda could adequately address those needs without owning a vehicle while
working full time and caring for Hayden’s two siblings. She observed that even during
visitation, Amanda struggled to attend to both Emma and Hayden, and that Hayden typically
remained largely ignored while Amanda played with Emma. She expressed concern that
Amanda had occasionally denied that Hayden will need surgery when multiple specialists have
indicated a need for several procedures. Wahrmund was also concerned that, when asked what
Hayden needs most, Amanda responded, “[L]ots and lots of love.”
Wahrmund was then asked to assess Amanda’s compliance with her court-ordered
Service Plan. Wahrmund testified that Amanda failed to comply in multiple respects:
She ha[s] not notified the Department within five days of new relationships or
moving. She has not successfully completed parenting classes and demonstrated
what she’s learned with interactions with her children. She was unable to
complete random drug tests once she moved [to Oklahoma]. And we were not
given monthly information from service providers as far as wh[ether] actual
counseling was discussing and talking about the reasons for removal and
the concerns.
She concluded that Amanda had not “substantially complied with the [S]ervice [P]lan.”
Charles
Charles testified that he and Amanda became friends a few years ago when he lived in
San Angelo before moving to Oklahoma. When he heard that she needed a job and a place to
stay, he invited her to move to Woodward, Oklahoma, where she could live at a hotel if she
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agreed to work the front desk full time. He denied that she moved to Oklahoma to avoid having
the new baby removed by Texas authorities upon delivery. He explained that Amanda does not
own a vehicle and that he takes her wherever she needs to go, including to Texas for visitation
with Emma and Hayden. He testified that she was seeking out as many counseling and parenting
services as she could in Oklahoma in hopes of regaining custody of her two older children.
When asked how she would live in a hotel room with three children, Charles responded that the
owners of the hotel planned to offer her one of their rental homes if she regains custody of Emma
and Hayden. Charles testified that Amanda dotes on Ethan frequently and has never missed a
visitation with Emma or Hayden, but he conceded that Amanda has essentially no social
network, other than himself, in or near Woodward, Oklahoma. He mentioned that Amanda had
said multiple times that she might move back to Texas.
The Department elicited testimony involving an incident that occurred shortly before
trial. Charles’s sister had apparently called 911 and reported that Charles was suicidal, in
possession of a firearm, and threatening to “blow his head off.” Police officers arrived at the
hotel and transported Charles to the hospital, where he was held for observation and then
discharged. Charles denies that he ever threatened to harm himself or others, although he
concedes that he owns a firearm. He characterized his sister as a liar who fabricated the threat of
suicide due to family “issues” between them. The district court sustained Charles’s and
Amanda’s objections to admission of the police report of the incident but allowed Charles to
describe what had transpired.
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Melissa Phillips
Melissa Phillips is the welfare worker who investigated allegations that Ethan might be
suffering neglect at the hotel in Oklahoma. She testified that her investigation included
interviews with Amanda, Charles, and Ethan’s pediatrician. She also reviewed Amanda’s
medical history and certain records from Emma’s and Hayden’s respective cases pending in
Texas. She testified that Ethan was removed from Amanda for one week due to concerns about
Amanda’s mental health and her frequent trips to Texas (i.e., to visit Emma and Hayden). She
then explained, “Once I received more information, we did not have any concerns.”
When asked whether the residence in Oklahoma was safe for Emma and Hayden, she
replied that she “did not have any concerns with the cleanliness or condition of the home.” She
continued, “It’s a great set-up the way that it is, because she is able to work, and she’s able to
also watch the baby at the same time.” She also noted that Ethan was “very clean and appeared
very well taken care of.” She had little concern about Amanda as a parent and said she believed
it would be in Emma’s and Hayden’s best interest to return to their mother.
Dori Wegner
Dori Wegner served as the court-appointed special advocate in this matter. Counsel
asked for an opinion as to whether termination of Amanda’s parental rights is in the children’s
best interest. She replied in the affirmative.
With respect to Emma, Wegner explained:
I believe that when Emma was with Amanda . . . there was neglectful supervision,
that she was left with several different people . . . [There] was an accident back in
August of 2017. I think she broke her leg. Also, the accident that happened to
Emma where she fell off the slide and hit her head. . . . When I spoke with
Amanda’s mother, she said she would keep Emma [for Amanda] about 90% of
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the time before she was removed. . . . I don’t believe that Amanda’s addressed
her mental health issues.
She concluded, “In my opinion, parental rights should be terminated for Amanda for Emma due
to neglectful supervision.”
With respect to Hayden, Wegner explained:
He has several medical conditions, as Mrs. [Young] testified. He is going to need
extreme care, probably for the rest of his life. . . . After going to several of the
doctor visits and [hearing] them explaining to me several conditions that he might
have or will have, I think he needs that excessive expert care that they can provide
if rights are terminated. . . . I do not see Amanda being able to take care of these
children’s needs.
When asked to comment on the State of Oklahoma’s investigation into Amanda’s care of Ethan
and whether those authorities were “wrong” in their conclusions about Amanda as a parent,
Wegner declined to comment on that case.
Amanda
Amanda testified that she had an “on and off” relationship with Jeff while Emma was in
her custody and acknowledged his pattern of drug use and “partying.” She admitted to using
marijuana herself, including when she was pregnant with Hayden, but denied that she had ever
been “diagnosed with any kind of drug problem.” She referred to the cleanliness of her
apartment as “not okay” when Fernandez first asked to see the home but attributed its condition
to the fact that she had recently been released from a mental health facility, where she had sought
treatment for what she described as bipolar disorder and post-traumatic stress syndrome. She
said she did not remember the condition of the apartment when Wahrmund and Wegner visited
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but attributed her inability to maintain the apartment to pregnancy complications and
work obligations.
With respect to her living arrangements in Oklahoma, she testified that she intended to
return to Woodward and live in the hotel with Charles and Ethan. She conceded that Charles
owns a firearm but described it as “concealed in a locked desk,” and she refuted any
characterization of him as unstable. She described a plan to move out of the hotel and into a
house if she regains custody of Emma and Hayden. She disagreed with earlier testimony that she
had no support network in Oklahoma, referring to “the girls” she works with in the hotel as
“really fantastic” and “supportive of [herself] and the baby.” She also testified that Charles’s
sister lives nearby and that her mother can drive up and stay with Amanda if needed.
With respect to Hayden and his medical needs, she testified that she is not certain
“exactly what he’s being treated for” but “know[s] that he has issues with his eye.” She
explained that she understands he will be developmentally delayed and that even though she does
not have a vehicle, she can find rides to take him to specialists in Oklahoma City or Dallas. She
conceded, however, that “he’s doing really good [sic] with the last foster home,” that he had
made “great improvement” and progress in his development while with the Youngs, and that the
foster mother makes “his health her priority.”
With respect to Emma, Amanda agreed with Young’s testimony that Emma is confused
by all the people involved in her life and does not understand why she cannot live with her
mother but Ethan can. When asked about Emma’s placement with the Youngs, Amanda
responded, “They love her like she belongs to them, and I have nothing bad to say about any of
my fosters, and I appreciate them doing the job that I was not able to do.”
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Exhibits
The Department offered into evidence: a copy of the Department’s files on Emma’s and
Hayden’s respective cases, Wegner’s final report on the case, medical records from Amanda’s
2017 inpatient stay at a mental health facility, a series of correspondence between Amanda and
the landlord that ultimately evicted her, a set of photos of Amanda’s apartment, and an exchange
of text messages indicating Amanda’s unhappiness with her living arrangements at the hotel in
Oklahoma. Amanda offered into evidence a set of notes and correspondence reflecting various
services she had sought and obtained in Oklahoma, along with some of Ethan’s medical records.
Many of these exhibits simply corroborate testimony already offered by witnesses, but a few
provide additional information relevant to statutory predicates and the best interest of
the children.
While on the stand, Amanda testified that when Fernandez first visited her apartment in
October of 2017, she had recently been discharged from inpatient treatment for bipolar
depression and post-traumatic stress disorder. But her medical records reveal that Amanda
originally checked herself into the facility in February of that year—when Emma was just a
toddler—with complaints of “the shakes” and other symptoms of opioid withdrawal. The intake
professional listed her medical history as “heavy drug use—narcotics.” At intake, Amanda
tested positive for amphetamines and tetrahydrocannabinol. She was discharged the following
day with prescription medications and instructions on managing the withdrawal. Amanda
returned to the same facility in early October, this time complaining of depression and anxiety
related to her pregnancy and her troubled relationship with Jeff. During Amanda’s twelve-day
inpatient stay, her health-care providers noted that she had first been admitted for inpatient
treatment for depression at age 14; had been in and out of care ever since; had been variously
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diagnosed with clinical depression, bipolar disorder, post-traumatic stress disorder, anxiety, and
attention-deficit disorder; had attempted suicide multiple times; was aware that Jeff was
unemployed and using methamphetamines at their shared apartment; was having fantasies about
physically assaulting Jeff or “breaking his legs” if he tried to leave her; was “overwhelmed” at
the thought of having a second baby and considering adoption; and was expressing suicidal
thoughts on a regular basis. She was discharged with instructions to abstain from drug and
alcohol use, seek counseling, and follow-up with the clinic in two weeks.
Amanda’s exhibits also provide insight into her life in Oklahoma. At the time of trial,
she had attended nine parenting classes on how to care for infants. She had also attended six
counseling sessions focusing on “depression, anxiety, and unresolved trauma,” and was
scheduled to continue attending these sessions. Ethan’s medical records reflect that he was
suffering a 25% delay in development but that he was up-to-date on immunizations and that
Amanda had enrolled him in an early-intervention program to address the developmental delays.
Amanda also submitted a social worker’s proposal for additional education and counseling.
None of Amanda’s exhibits makes any reference to treatment for substance abuse or addiction.
After closing arguments, the district court announced that it would not rule from the
bench but would “review the exhibits that were introduced in this case” and would render a
decision as soon as possible. On September 24, 2019, the court issued orders terminating
Amanda’s parental rights to Emma and Hayden. Using identical language in each order, the
court found that “termination of the parent-child relationship between [Amanda] and the child
the subject of this suit is in the child’s best interest.” It further found that Amanda had:
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• knowingly placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of
the child, pursuant to § 161.001(b)(1)(D), Texas Family Code;
• 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, pursuant to § 161.001(b)(1)(E), Texas Family Code;
• failed to comply with the provisions of a court order that specifically
established the actions necessary for the mother to obtain the return of the
child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for
not less than nine months as a result of the child’s removal from the parent
under Chapter 262 for abuse or neglect of the child, pursuant to
§ 161.001(b)(1)(O), Texas Family Code;
• not prove[n] by a preponderance of evidence that [Amanda]: (1) was
unable to comply with specific provisions of a court order; and (2) the
parent made a good faith effort to comply with the order and the failure to
comply with the order is not attributable to any fault of the parent.
Amanda perfected timely appeal from each order.
DISCUSSION
Amanda challenges the legal and factual sufficiency of the evidence to support the
findings quoted above. It was the Department’s burden to prove by clear and convincing
evidence at least one of the predicate grounds for termination set forth in section 161.001(b)(1)
of the Texas Family Code—in this case, subsection (D), (E), or (O)—and to demonstrate that
termination is in the best interest of each child. See id. §§ 161.001(b)(1) (delineating statutory
predicates), .001(b)(2) (requiring best-interest finding), 161.206(a) (requiring clear and
convincing evidence); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (“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.”). Evidence is clear and convincing if it
meets “that measure or degree of proof which will produce in the mind of the trier of fact a firm
15
belief or conviction as to the truth of the allegations sought to be established.” In re C.H.,
89 S.W.3d 17, 23 (Tex. 2002) (quoting State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979));
see also Tex. Fam. Code § 101.007 (defining “clear and convincing evidence”).
To evaluate legal sufficiency of the evidence, we must “look at all the evidence in the
light most favorable to the 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 evaluate factual sufficiency, we must examine all the evidence to determine
“whether the evidence is such that a factfinder could reasonably form a firm belief or conviction
about the truth of the State’s allegations.” In re C.H., 89 S.W.3d at 25; see also In re H.R.M.,
209 S.W.3d 105, 108 (Tex. 2006) (describing factual-sufficiency standard of review in appeals
from parental termination orders and noting that appellate court “must give due deference” to
fact findings and not substitute its own judgment). Evidence that is factually sufficient to
support a trial court’s finding necessarily satisfies the legal-sufficiency standard. See In re
M.V.G., 440 S.W.3d 54, 60 (Tex. App.—Waco 2010, no pet.) (“[B]ecause the evidence is
factually sufficient, it is necessarily legally sufficient.”).
Statutory Predicates (D) and (E)
Amanda contends the Department failed to meet its evidentiary burden to prove statutory
predicates (D), (E), and (O). Because the provisions involve similar issues of law and fact, we
will analyze subsections (D) and (E) together. And as only one statutory predicate is necessary
to support termination, and because we conclude the Department met its burden with respect to
subsections (D) and (E), we need not address Amanda’s arguments regarding subsection (O) and
the reasons for her failure to comply with court orders. See In re A.V., 113 S.W.3d at 362.
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Subsection (D) allows the termination of the rights of a parent that “knowingly placed or
knowingly allowed the child to remain in conditions or surroundings which endanger the
physical or emotional well-being of the child.” See Tex. Fam. Code § 161.001(b)(1)(D).
Subsection (E) allows the termination of the parental rights of a parent that “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 id. § 161.001(b)(1)(E). “Both subsections D
and E of 161.001(1) use the term ‘endanger.’” In re S.R., 452 S.W.3d 351, 360 (Tex. App.—
Houston [14th Dist.] 2014, pet. denied). “‘To endanger’ means to expose a child to loss or injury
or to jeopardize a child’s emotional or physical health.” See id. (citing In re M.C., 917 S.W.2d 268,
269 (Tex. 1996); Walker v. Texas Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616–17
(Tex. App.—Houston [1st Dist.] 2009, pet. denied)). “Endangerment under subsection D may be
established by evidence related to the child’s environment.” Id. “Under subsection E, the
evidence must show the endangerment was the result of the parent’s conduct, including acts,
omissions, or failure to act.” Id.
This record includes sufficient evidence to support the court’s findings under subsections
(D) and (E). With respect to Emma, the record reveals that Amanda was unable to maintain a
clean and safe home and knowingly allowed the use of illegal substances within the home.
Fernandez reported that at one point, everyone Amanda identified as a significant presence in her
life had a history of drug abuse or violence, suggesting Emma was frequently exposed to risk of
physical or emotional harm or injury. Amanda’s medical records reveal a volatile, unstable
situation at home, with Amanda occasionally threatening violence against Jeff, and with Jeff
often “strung out” on methamphetamines or absent from the home entirely. Those same records
reveal that Amanda herself was using marijuana and narcotics while Emma was just a toddler.
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Amanda knowingly and repeatedly left Emma in the care of at least three habitual drug users—
Arturo, Jeff, and Amanda’s mother—with at least one of those stays resulting in significant
injury and another stay lasting twelve days. This evidence would allow a reasonable factfinder
to develop a firm conviction that Amanda knowingly exposed Emma to dangerous conditions,
engaged in conduct that endangered her physical and emotional health, and placed her with
persons that would endanger her physical and emotional health.
With respect to Hayden, Amanda argues that the Department cannot, as a matter of law,
prove its (D) and (E) arguments because Hayden was at all relevant times in the Department’s
custody. The Supreme Court of Texas has rejected this argument by holding that a factfinder
may consider circumstances and conduct that occurred before birth and after removal in
evaluating (D) and (E) allegations. See In re J.O.A., 283 S.W.3d 336, 345–46 (Tex. 2009). In
this case, Wahrmund and Wegner described the conditions of Amanda’s home during her
pregnancy as “deplorable.” Amanda—and, as a consequence, Hayden—was frequently exposed
to tobacco, marijuana, and methamphetamine smoke. Her medical records reveal that she
knowingly allowed Jeff to use drugs in the apartment. She was unable to maintain a steady
source of income and her relationship with Jeff was becoming increasingly volatile. Pre-natal
screening confirmed that she used marijuana during at least some of the pregnancy. The
Department reported that she frequently overslept and missed multiple appointments for
counseling and other services intended to improve her health and the health of her unborn baby.
Once the baby was born, she reportedly only visited Hayden at the NICU once per day, typically
late at night, to nurse him, although she insisted on breastfeeding. Young later testified to her
understanding that Hayden was significantly undernourished when he was placed with her,
contributing to his developmental delays. Amanda then interrupted most of the progress toward
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her Service Plan goals to move to Oklahoma. On this record, a factfinder could reasonably
develop a firm conviction that Amanda knowingly exposed Hayden to dangerous conditions and
engaged in conduct that endangered his physical and emotional health. See id. at 345 n.4
(collecting authorities describing endangerment resulting from exposure to substance abuse), id.
at 346 (including pre-natal substance abuse as evidence of endangerment). The evidence is
therefore both legally and factually sufficient to support the district court’s conclusions with
respect to Emma and Hayden under subsections (D) and (E).
Best Interest
Texas law recognizes a strong presumption that a child’s best interest is served by
remaining with his or her natural parent, see In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied), but this record includes sufficient evidence that the
Department satisfied its burden to prove termination is in the best interest of Emma and Hayden.
Relevant factors in assessing the best interest of a child include: (i) the desires of the child,
(ii) the stability of the home or proposed placement, (iii) parental abilities, (iv) the emotional and
physical needs of the child now and in the future, (v) the emotional and physical danger to the
child now and in the future, (vi) the plans for the child by the individual or agency seeking
custody, (vii) the programs available to assist the individuals seeking custody to promote the best
interest of the child, (viii) acts or omissions by the parent showing that the parent-child
relationship was not proper, and (ix) any excuses for the parent’s conduct. See Holley v. Adams,
544 S.W.2d 367, 371–72 (Tex. 1976); accord Tex. Fam. Code § 263.307 (stating that “prompt
and permanent placement of the child in a safe environment is presumed to be in the child’s best
interest” and listing factors that court should consider “in determining whether the child’s
parents are willing and able to provide the child with a safe environment”). No one factor is
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controlling, and evidence presented to satisfy the predicate ground finding may also be probative
of the child’s best interest. See In re C.H., 89 S.W.3d at 27–28.
Although there is some evidence to suggest Emma has expressed a desire to return to her
mother, and while it is clear that Amanda loves Emma, the remaining Holley factors suggest that
termination is in Emma’s best interest. Amanda has not shown that she can provide a stable
home or consistent source of income to provide for Emma: Wahrmund testified that in the two
years the Department’s case was pending, Amanda had had “four, possibly five” different jobs
and that she had lost count of how many different places Amanda had lived. The Youngs,
meanwhile, are a well-settled family with a permanent residence and a consistent source
of income.
Turning to parental ability, Amanda has recently taken parenting courses, but those
classes only addressed infant care. Witnesses testified that her engagement with Emma and
Hayden was not age appropriate during visitations. With respect to the risk of injury, this record
suggests a reasonable likelihood that Emma would be exposed to physical and emotional harm
should she return to Amanda’s care: Amanda has a consistent history of associating with
emotionally unstable individuals and drug users, and has repeatedly left Emma in the care of
those individuals, including for twelve consecutive days with her heroin- and cocaine-addicted
mother. The Youngs have expressed their desire to adopt Emma, have helped her make friends,
plan to enroll her in a “Head Start” program, and will seek out pediatric counseling for any
emotional issues that might result from termination. Young testified that their church members
have volunteered to support the family as they care for Emma and her medically fragile brother.
Taking all the evidence into account, a factfinder could form a reasonably firm conviction that
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termination of Amanda’s parental rights to Emma is in Emma’s best interest. The evidence is
therefore both legally and factually sufficient to support the district court’s best-interest finding.
For many of the same reasons, the evidence is sufficient to support its conclusion with
respect to Hayden’s best interest. It is not clear from this record whether Hayden has expressed a
custodial preference. However, Amanda, Wegner, and Young each spoke of the close bond he
has with his sister, suggesting that the two would prefer to remain together. With respect to the
next two factors, and as already discussed, Amanda has not shown the ability to adequately
parent Emma and Hayden or to provide stability for them.
Hayden’s extensive physical and emotional needs weigh heavily in favor of termination
of parental rights. Nearly all the evidence reveals that Amanda struggled just to care for Emma
alone. One statement in the record reveals that Amanda relied on alternate caretakers for Emma
“90% of the time.” The testimony of Wahrmund, Wegner, and Young reflects that Hayden is
significantly developmentally delayed, has serious health issues, and will need extensive medical
and personal care “probably for the rest of his life.” Although Amanda testified that she can
provide that care, referring vaguely to unnamed physicians in Oklahoma City or Dallas, she also
conceded that she does not know what his diagnoses and prognoses are and at various times has
insisted that he would grow out of the delays, that “it’s not a big deal,” and that he will “be just
fine.” This characterization of Hayden’s needs is irreconcilable with Wegner’s and Young’s
first-hand knowledge of his medical conditions and care requirements.
Young, meanwhile, has a full understanding of the extent of Hayden’s delays and an
appreciation of the extensive and time-consuming care he will need. Young brought to the
witness stand a binder containing all of Hayden’s medical records. She indicated that it is
impossible to know how many surgeries Hayden will need on his back, his neck, and his eyes,
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but testified that she will take as much time away from her career as necessary to help Hayden
progress in his health and development. Even Amanda admitted that Young makes Hayden’s
health her first priority, thereby suggesting that permanent placement with the Youngs may be in
Hayden’s best interest. See In re L.G.R., 498 S.W.3d at 204 (considering mother’s ignorance of
and inattention to child’s “severe medical issues” and special needs as evidence that termination
is in child’s best interest).
Given Hayden’s limited ability to protect himself from harm, his risk of sustaining
emotional or physical injury is significant. Testimony from Fernandez, Wahrmund, Wegner,
Charles, and Amanda herself all suggest that Amanda is not capable of maintaining a home safe
enough for an ambulatory child as developmentally delayed as Hayden. She frequently hosts
guests in possession of illegal substances or firearms. At one point drugs and paraphernalia were
left exposed on the coffee table. She has repeatedly left both Emma and Ethan in the care of
various unstable individuals, leading to injury in at least one case; and it is reasonable to infer
that she might resort to unsuitable care for Hayden, as well. In addition, Wegner indicated in her
final report to the court that Hayden could suffer irreversible long-term effects from any failure
to receive the medical care he needs, and it is unclear whether Amanda will ensure he receives
that care.
With respect to any programs available to assist with Hayden’s needs, the record reflects
that both Amanda and the Youngs have access to services. The Youngs have enrolled Hayden in
early-intervention services, sought out a host of specialists to treat his conditions, and have
turned to their church for additional support. Amanda submitted documents indicating that she
has access to an array of social services in Oklahoma and that she is already pursuing early-
intervention services for baby Ethan, suggesting she might do the same for Hayden. However,
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she has no vehicle and no drivers’ license, and it is unclear to what extent those facts would limit
her ability to benefit from those programs.
With respect to the eighth factor, there is little evidence on the nature of Amanda’s
relationship with Hayden because of his removal at birth. And the ninth factor—any acts or
omissions by the parent and any excuses therefore—weighs in favor of termination. This record
reveals two primary excuses for Amanda’s wrongful acts and omissions as a parent: chronic
substance abuse and a long history of undertreated mental illness. While Amanda’s testimony
and exhibits reveal recent attempts to improve her mental health, “evidence of improved
conduct, especially of short-duration, does not conclusively negate the probative value of a long
history of drug use and irresponsible choices.” In re J.O.A., 283 S.W.3d at 346. Moreover, her
own exhibits reveal that she is still using narcotics and are devoid of any evidence she is seeking
help for her long history of substance abuse.
Taking all the evidence together, a fact-finder could form a reasonably firm conviction
that termination of Amanda’s rights to Hayden is in Hayden’s best interest. As a consequence,
the evidence is both legally and factually sufficient to support the court’s finding that the
Department met its burden under Section 160.001(b)(2).
CONCLUSION
Having rejected Amanda’s challenge to the orders terminating her parental rights to
Emma and Hayden, we affirm those orders.
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__________________________________________
Edward Smith, Justice
Before Justices Goodwin, Kelly, and Smith
Affirmed
Filed: March 12, 2020
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