R. G., J. C., and C. M. v. Texas Department of Family and Protective Services ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00042-CV
R. G., J. C., and C. M., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-21-000350, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants R.G. (Father), J.C. (Mother), and C.M. (Grandmother) each appeal
from the district court’s order, following a bench trial, terminating Father’s and Mother’s
parental rights to their twin children, two-year-old S.C. (Sally) and M.C. (Molly), and appointing
the Texas Department of Family and Protective Services (the Department) as the sole managing
conservator of the children. 1 In two issues on appeal, Father and Mother each challenge the
district court’s findings that (1) termination of their parental rights and (2) appointment of the
Department as sole managing conservator was in the best interest of the children. Grandmother,
who is proceeding pro se (as she did in the court below), also challenges the district court’s
appointment of the Department as sole managing conservator. We will affirm the district court’s
termination decree.
1 For the children’s privacy, we refer to them using pseudonyms and to their parents and
other relatives by their familial relationships to each other, and we refer to the children’s
approximate age when trial concluded. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
BACKGROUND
The case began shortly after the twins were born, when the Department received a
referral alleging that Mother and one of the twins had tested positive for amphetamines when the
twins were born, the meconium of both twins had tested positive for methamphetamines, and
Mother had tested positive for methamphetamines during her pregnancy. The Department’s
removal affidavit, a copy of which was admitted into evidence, averred that Mother reported that
her “drug of choice” was marijuana but that she “sometimes” uses methamphetamine, including
as recently as one month before the twins were born.
During the subsequent Department investigation, Mother reported that she
currently lived with a friend but did not know the friend’s address. Mother also reported that she
had been involved with the Department in the past, that her two older children had been adopted
by Grandmother, and that she wanted the twins to be placed with Grandmother while the case
was ongoing. The Department contacted Grandmother, who confirmed that she had adopted
Mother’s older children and expressed interest in the twins staying with her while Mother “get[s]
the help she needs.” The twins were placed with Grandmother following a home assessment
and interview.
Approximately one year after the case began, Father was adjudicated the twins’
father, following DNA testing that established his paternity, and thereafter he was made a party
to the suit. Both Father and Mother were ordered to complete various services during the case,
including random drug testing. Neither parent was successful in completing services. Father
tested positive for cocaine in April 2022 and did not communicate with the Department for
several months after that. Mother failed to maintain consistent communication with the
Department or submit to most of the Department’s requested drug tests but, in February 2022,
2
tested positive for THC, methamphetamines, and opiates upon giving birth to another child.
That child tested positive for methamphetamines and opiates in his urine and THC,
amphetamines, methamphetamines, and opiates in his meconium.
This case proceeded to a four-day bench trial, at the conclusion of which the
district court took the matter under advisement. The district court later issued a decree of
termination, having found by clear and convincing evidence that termination of Father’s and
Mother’s parental rights was in the best interest of the children and that Father and Mother had:
(1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings
which endanger the physical or emotional well-being of the children; (2) engaged in conduct or
knowingly placed the children with persons who engaged in conduct which endangers the
physical or emotional well-being of the children; (3) constructively abandoned the children; and
(4) failed to comply with the provisions of a court order that specifically established the actions
necessary for the parent to obtain the return of the children. See Tex. Fam. Code
§ 161.001(b)(1)(D), (E), (N), (O), (2). The district court additionally found that Mother had used
a controlled substance in a manner that endangered the health or safety of the children and that
Mother had been the cause of the children being born positive for a controlled substance. See id.
§ 161.001(b)(1)(P), (R). Regarding conservatorship, the district court found that it would be in
the best interest of the children to appoint the Department as the nonparent sole managing
conservator of the children. Finally, the district court ordered that Grandmother, who had
intervened in the suit shortly before trial, “shall be entitled to have a relationship with the
children until they are adopted, if they are adopted” and that she “shall be allowed to continue to
have regularly scheduled visits with the children as determined by further order of the court at
regularly scheduled review hearings.” This appeal followed.
3
DISCUSSION
Termination of parental rights
“Section 161.001 of the Texas Family Code requires two findings to support
termination of a parent’s legal rights: (1) the parent’s acts or omissions must satisfy an
enumerated statutory ground for termination; and (2) termination must be in the children’s best
interest.” In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021); see In re N.G., 577 S.W.3d 230, 232
(Tex. 2019) (per curiam); A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 697
(Tex. App.—Austin 2019, pet. denied). In this appeal, Father and Mother do not challenge the
evidence supporting the statutory grounds for termination of their parental rights. Instead, they
each argue that the evidence is legally and factually insufficient to support the district court’s
finding that termination of their parental rights was in the best interest of the children.
Standard of review
“Proceedings to terminate the parent-child relationship implicate rights of
constitutional magnitude that qualify for heightened judicial protection.” In re A.C., 560 S.W.3d
624, 626 (Tex. 2018). Parental rights have been characterized as “essential,” “a basic civil right
of man,” and “far more precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985) (citing Stanley v. Illinois, 405 U.S. 645, 651 (1972)). They are “perhaps the oldest of the
fundamental liberty interests” protected by the United States Constitution. Troxel v. Granville,
530 U.S. 57, 65 (2000); E.E. v. Texas Dep’t of Fam. & Protective Servs., 598 S.W.3d 389, 396
(Tex. App.—Austin 2020, no pet.). “When the State initiates a parental rights termination
proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.”
4
Santosky v. Kramer, 455 U.S. 745, 759 (1982). “Consequently, termination proceedings should
be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the
parent.” Holick, 685 S.W.2d at 20. “Because termination of parental rights ‘is complete, final,
irrevocable and divests for all time’ the natural and legal rights between parent and child,” a trial
court “cannot involuntarily sever that relationship absent evidence sufficient to ‘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.’” A.C., 560 S.W.3d at 630 (quoting Tex. Fam. Code § 101.007; Holick, 685 S.W.2d
at 20). “This heightened proof standard carries the weight and gravity due process requires to
protect the fundamental rights at stake.” Id.
“A correspondingly searching standard of appellate review is an essential
procedural adjunct.” Id. “The distinction between legal and factual sufficiency lies in the extent
to which disputed evidence contrary to a finding may be considered.” Id. “Evidence is legally
sufficient if, viewing all the evidence in the light most favorable to the fact-finding and
considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or
conviction that the finding was true.” Id. at 631. “Factual sufficiency, in comparison, requires
weighing disputed evidence contrary to the finding against all the evidence favoring the finding.”
Id. “In a factual-sufficiency review, the appellate court must consider whether disputed evidence
is such that a reasonable factfinder could not have resolved it in favor of the finding.” Id.
“Evidence is factually insufficient if, in light of the entire record, the disputed evidence a
reasonable factfinder could not have credited in favor of a finding is so significant that the
factfinder could not have formed a firm belief or conviction that the finding was true.” Id.
However, “an appellate court’s review must not be so rigorous that the only
fact-findings that could withstand review are those established beyond a reasonable doubt.”
5
In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). “While parental rights are of constitutional
magnitude, they are not absolute.” Id. “Just as it is imperative for courts to recognize the
constitutional underpinnings of the parent-child relationship, it is also essential that emotional
and physical interests of the child not be sacrificed merely to preserve that right.” Id.Best-interest considerations
We review a factfinder’s best-interest finding in light of the non-exhaustive list of
considerations set out in Holley v. Adams, which include the child’s wishes, the child’s
emotional and physical needs now and in the future, emotional or physical danger to the child
now and in the future, the parenting abilities of the parties seeking custody, programs available
to help those parties, plans for the child by the parties seeking custody, the stability of the
proposed placement, the parent’s acts or omissions indicating that the parent-child relationship is
improper, and any excuses for the parent’s conduct. 544 S.W.2d 367, 371–72 (Tex. 1976); see
A.C., 560 S.W.3d at 631; In re E.N.C., 384 S.W.3d 796, 807 (Tex. 2012); C.H., 89 S.W.3d at 27.
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.” C.H., 89
S.W.3d at 27. “We must consider ‘the totality of the circumstances in light of the Holley factors’
to determine whether sufficient evidence supports” the best-interest finding. In re J.M.G., 608
S.W.3d 51, 54 (Tex. App.—San Antonio 2020, pet. denied) (quoting In re B.F., No. 02-07-
00334-CV, 2008 WL 902790, at *11 (Tex. App.—Fort Worth Apr. 3, 2008, no pet.) (mem. op.)).
6
Evidence presented
Evidence regarding Father and Mother
Father had a history of committing domestic violence against Mother. A victim-
services counselor for the family-violence unit of the Austin Police Department (APD) testified
about an incident that occurred in January 2019, in which Mother reported that Father had
assaulted and strangled her. According to the counselor, the assault resulted in “bruising and
leaking under [Mother’s] eye and a cut on her lip.” An APD officer who responded to the
assault provided similar testimony regarding Mother’s injuries and provided more detailed
testimony regarding the strangulation, explaining that Father had “wrap[ped] his right arm
around [Mother’s] neck with her neck like in the crook of [Father’s] elbow,” “dragged her back
to the “bed, threw her on to her back on the bed and then climbed on top of her and then used
both of his open hands and placed them around [Mother’s] neck and began to choke her” until
Mother told Father that she could not breathe and that her “vision started to go dizzy and she said
she was starting to see spots in her vision.”
Another APD officer testified about an incident that occurred in October 2020,
while Mother was pregnant with the children. The officer responded to a domestic disturbance
in which Father had punched Mother in the back of her head with his fist when she was trying to
leave their apartment following an argument, causing Mother intense pain and resulting in her
being transported to a hospital. Father claimed that during this incident, Mother had punched
him in his groin. A third APD officer testified about another domestic disturbance between
Mother and Father in February 2022 that did not result in physical violence but involved them
“screaming at each other” inside a car.
7
Mother also had a criminal history, including convictions for assault, arrests for
drug possession, and an arrest for burglary of a building that occurred while the case was
ongoing. An APD officer testified that in February 2022, he responded to a “burglary hot shot,”
i.e., a “burglary in progress with suspects actively breaking into a residence.” A white truck had
reportedly fled the scene following the burglary, and when the officer stopped the truck, he
found Mother inside the vehicle in the front passenger seat. Narcotics, including
methamphetamine, were found in a purse inside the vehicle, along with drug paraphernalia and
other possible contraband, and Mother admitted to the officer that she used methamphetamine.
Another APD officer testified about a separate incident during which a security camera recorded
a male and a female, later identified as Father and Mother, entering a vacant apartment. The
officer testified that based on this incident, arrest warrants for burglary of a building were issued
for Father and Mother and that the warrants had been issued that day, i.e., the day on which the
officer testified at the termination trial. The affidavits for the arrest warrants, copies of which
were admitted into evidence, reveal that the offense was committed in June 2022 and that in the
security video, Father could be seen stealing a washer and dryer from the apartment, with Mother
present at the apartment when the theft occurred.
Father and Mother had each been ordered to engage in services to obtain the
return of their children. A Department supervisor testified that Father completed a psychological
evaluation but did not follow the recommendations provided, did not complete individual
counseling, failed to complete a batterers intervention and prevention program (BIPP), and had
not completed SAFE Fatherhood classes. Father also tested positive for cocaine in April 2022.
The supervisor testified that Mother completed a psychological evaluation but
failed to follow the psychologist’s recommendations for treatment, completed some but not all of
8
her parenting classes, failed to complete a drug and alcohol assessment, and failed to participate
in drug testing or treatment. The supervisor also testified that Mother did not participate in a
domestic-violence class, although Mother testified that she completed the class but was unable to
download and print the certificate of completion. When asked why she had not engaged in
services earlier in the case, Mother testified that she “really just didn’t take [the case] . . . too
seriously” while the children lived with Grandmother.
Father and Mother each had supervised visits with the children. At the beginning
of the case, Mother visited the children regularly at Grandmother’s house and, while she was
there, did the laundry, helped prepare bottles for the children, changed their diapers, and put the
children to sleep. However, Grandmother also testified that Mother “expected everything” from
her and would sometimes “take advantage” of Grandmother by not paying attention to the
children while she was there.
Additionally, Grandmother testified about an incident that occurred during a visit
in May 2022 when Mother assaulted Grandmother’s sister. According to Grandmother, Mother
and Grandmother’s sister got into a “fist fight” during which the two were wrestling on the
ground, “punching and pulling hair,” and Mother “kept punching her and punching her and
punching her” until the sister “got her in a chokehold.” The assault occurred in the presence of
the children, and Grandmother had to take Sally to a neighbor’s house because Sally was scared,
screaming, and crying in response to the fight. Grandmother believed that Mother might have
been under the influence of drugs at the time. After that incident, Grandmother requested that
visits take place at the Department office, and the trial court subsequently ordered Mother to
“remain 200 yards away from any place that she expects the Children, or learns the Children, to
be, including their residence and daycare or school, except for court-ordered visitation.” The
9
trial court also ordered Father to “not cause or allow Respondent Mother [] to violate this order.”
In violation of that order, Father and Mother attempted to visit the children at Grandmother’s
house in June 2022, and Grandmother had to call the police to get them to leave. After that,
Mother’s contact with Grandmother became inconsistent. Mother testified that she had not
visited the children since the Department began supervising visitation, and that it had been
“months” since she had last seen the children. When asked why she had not visited them,
Mother testified that it was because of her “separation anxiety.”
Father visited the children three times in March 2022 but did not visit them
thereafter. Father testified that he loved the children and wanted to see them but that “the stress
of services . . . started to overwhelm [him] a little bit and then got in the way of [his] visits.”
Father testified that if the children were returned to him, his mother and younger brother, who
lived with Father, could assist him in caring for the children, although the Department supervisor
testified that both relatives had extensive criminal histories. Father testified that he wanted the
children to be placed with him but acknowledged that the trial court might not see him as a fit
parent “right now.” He asked that the children be placed with “somebody who can care and
provide for them, like, all the way,” which Father believed to be Grandmother.
Mother similarly testified that she wanted the children returned to her but that
“the next best place for [her] children would be with [Grandmother].” Mother acknowledged
that she had not secured stable housing by the time of trial but had “just applied for some
housing” with a housing program and was on a waiting list. Mother “hoped” that she would
have housing “within a matter of weeks or months.” Mother also testified that she had just
started a job at a printing company, where she scanned, uploaded, and reprinted documents.
10
However, Mother added that the company was “slow on work right now,” and she worked only
three- or four-hour shifts per day.
The Department supervisor testified that the Department believed termination of
Father’s and Mother’s parental rights was in the best interest of the children. She explained,
[Mother] and [Father] have not shown any significant change in their behavior. In
fact, it appears as if they’re still engaging in criminal activity. They have a
history of family violence. They have a history of substance use. Neither has
tested a long enough time to show continued sobriety, and it would be in the best
interest of [Sally] and [Molly] to be in a home, like I said, that’s drug free,
violence free, stable, and safe.
Evidence regarding plans and proposed placements
The Department supervisor testified that the Department’s original plan for the
children when the case began was family reunification. However, that plan changed to relative
adoption in 2022 after Mother gave birth to a new child (Brother) who tested positive for drugs
at birth and Father tested positive for cocaine. When Brother was born in February 2022,
Grandmother was considered as a placement, but “because she had the older two boys and
[Sally] and [Molly], she declined.” Instead, Brother was placed with a foster family. At the time
of trial in Fall 2022, Father and Mother wanted the twins either returned to them or placed with
Grandmother. The Department’s plan, according to the Department supervisor, was for the
Department “to take permanent managing conservatorship of the girls and hopefully have them
adopted” by the foster family where Brother had been placed.
The children had been placed with Grandmother and her husband since the case
began, days after the children were born, and Grandmother had already adopted Mother’s two
older sons, who were twelve and seven years old at the time of trial. At the time of placement,
11
the Department provided resources to Grandmother to help her care for the children, including
“pack and plays, car seats, some formula, diapers, wipes, some basic necessities.” The
Department supervisor testified that they did “all the necessary background and CPS checks, the
criminal history and the CPS checks” and then “move[d] forward with a home study” on
Grandmother that the Department approved. Thus, at the beginning of the case, the Department
believed Grandmother to be a safe placement.
However, the Department supervisor testified that Grandmother’s home was
approved “for placement purposes only” and not for adoption because of financial concerns that
were raised during the home study and later during the case. The supervisor testified that
Grandmother and her husband were not “making enough money to cover all their rent and all the
bills.” Additionally, the Department was concerned about the children’s sleeping arrangements,
as they were sleeping on the floor on a mattress rather than on beds. In November 2021,
Grandmother reached out to the Department and told them that they were “very, very, very
behind in rent” in the amount of $9,000 and had received an eviction notice from their landlord.
They were also behind in their utility bills in the amount of $5,000. In response to
Grandmother’s request for financial assistance, the Department provided the family with $5,000,
beds for the children, gift cards, car seats, and a Thanksgiving turkey. The Department offered
to pay for daycare for the children so that Grandmother could obtain employment. Grandmother
“was also receiving kinship funds from the approved home study, and it got to a point where
there was not much more [the Department] could offer.” Even with the Department’s assistance,
Grandmother was “still financially having trouble staying . . . on top of everything.” The
Department also expressed concerns about a roach infestation inside the home and a front-door
lock that was “not as sturdy as it should have been.”
12
On Friday, July 22, 2022, the Department removed the children from
Grandmother’s home to visit the foster family for the weekend. The purpose of this visit,
according to the Department supervisor, was to allow Grandmother some time to “work on
getting the financials together, getting the roaches taken care of, fix[ing] the door, and look[ing]
for a daycare for the girls.” The Department caseworker who picked up the girls from
Grandmother’s home testified that they “were a little dirty” and that “[t]heir hair was matted.”
The caseworker transported the girls to the Georgetown CPS office, where the foster family was
waiting to take them to their home.
The foster mother, D.A. (Foster Mother) testified that she had worked as a nurse
for 19 years, including as a pediatric office nurse for several years. Currently, Foster Mother
worked as “a director of a small nonprofit” organization that operated three months out of the
year and as “a stay-at-home mom” for the other nine months of the year. She and her husband
had been married for over 20 years.
Foster Mother testified that she had communicated with Grandmother “a couple
times a week on average” after Brother was placed in her care and had “invited her out to the
house” on multiple occasions. Most of the time, Grandmother could not visit the foster family
because of transportation issues, but on one occasion, Grandmother “brought the twins and came
out to [their] home to visit and meet baby [Brother].” Foster Mother testified that she was aware
of Grandmother’s financial difficulties and had sent her gift cards “during times when they
were struggling.”
Foster Mother testified that when the children were brought to her for the
weekend visit, she “had a long list of concerns, including the condition they were in.” The
children “were very dirty,” and Molly “had an untreated rash all over her body” and a black eye.
13
Immediately upon receiving the children, Foster Mother took photos of the black eye “so that no
one would think it happened in our care.” Copies of these photos were admitted into evidence.
Foster Mother also observed that the children did not use words to communicate but only cried
and screamed and that they were “constantly touching themselves and had their hands in their
pants,” which indicated to her that the children’s skin was irritated and itchy. Additionally, the
children had “fissures,” i.e., open sores, under their toes and “severe labial adhesions” that Foster
Mother discovered when she was changing their diapers. Foster Mother explained that when
“you’re changing a little girl, you have to spread the skin to clean everything out, and
unfortunately you couldn’t spread the skin” because “the labia [were] completely fused
together.” Foster Mother contacted the Department “first thing Monday morning” about her
concerns and arranged for them to see a pediatrician.
On Tuesday, the Department removed the children from Grandmother’s care and
placed them with the foster family. A Department investigator testified that the change in
placement was prompted by an intake alleging physical abuse to Molly based on her having a
black eye and other facial bruising and further alleging medical neglect to both girls based on the
labial adhesions. The investigator also testified that the Department had concerns related to the
children’s development: “They were unable to feed themselves, and they were at an age where
they should have been able to do that, and they were using the wrong tools . . . like baby bottles
and things like that.” The investigator explained that at the time of trial, Grandmother “cannot
be a placement for the girls” because the Department had “an open investigation regarding her
household” and “ongoing concerns with medical neglect.” The investigator’s supervisor testified
that the Department had “reason to believe” that physical abuse had occurred while they were in
Grandmother’s care “based on [Molly] having bruises to her face.”
14
The Department caseworker who had brought the children to the foster family
testified that when she later visited them in the foster home, they had been clean and dressed
appropriately. Also, the children’s toe fissures “were pretty much all healed up,” the labial
adhesions were “almost cleared up as well,” and the children were able to say words. The
caseworker further testified that Grandmother had not acknowledged that the children had
medical issues, speech issues, and developmental delays and had not requested to attend any of
the children’s medical appointments or requested to see the children’s medical records. Another
caseworker testified that Grandmother told her that the labial adhesions might have been the
result of eczema, allergies, or diaper rashes; that the black eye was caused by Molly “running
from the couch and like falling off the couch area and then . . . bump[ing] her eye”; and that the
children’s rashes might have been caused by bug bites from playing outside. Grandmother also
told the caseworker that the children were “singing and speaking and interacting well” before
they were removed from her care and attributed any communication delays to the disruption
caused by their removal from her care.
Foster Mother testified that she had “multiple different therapies . . . lined up” for
the children, including physical therapy, speech therapy, and possibly occupational therapy.
Currently, Foster Mother had the children seeing an Early Child Intervention (ECI) special skills
trainer who was teaching them verbal communication and sign language. Foster Mother also
testified that she spent a minimum of two hours per day with the children “catching up their
developmental delays as well as their communication, their sign language, et cetera.” She
further testified that the children’s labial adhesions “had completely opened up,” that their rashes
had cleared up, and that the children had no diaper rashes or urinary tract infections while they
were in her care.
15
Foster Mother further testified that since the children had been placed in her care,
she had “a great relationship” with them and that they call her “mama.” Whenever she picked
them up from daycare, “they come running with their hands up happy and smiling and giggling.”
She added, “We’re a family.” Foster Mother testified that it was her “hope and goal” to adopt
the children, although she acknowledged that she had concerns about the adoption because one
of the girls had exhibited “some aggressive behavior towards [Brother], and his safety came into
question.” The foster family was attempting to work through this issue and was “taking it one
day at a time.”
Grandmother, in her testimony, denied abusing or neglecting the girls but
acknowledged that she could have done “a better job” caring for them and promised to do better
moving forward if they were returned to her. Grandmother acknowledged that at the time of
trial, she was still struggling financially and that she and her husband were planning on moving
because the landlord would soon raise their rent. Grandmother also testified that her priority was
“the girls and their safety” and that if they were returned to her, she would not allow Father and
Mother to see the girls until “they get their lives right.”
Evidence regarding the children
The ECI specialist who had been working with the children to improve their
communication testified that when she first met with them in September 2022, neither child used
words to communicate, even though at their age, they should have been able to use 20 to 25
words. Molly “wasn’t making the sounds towards . . . people” and “would just come up to
people and tap them to get their attention,” while Sally “was just babbling and making sounds”
when playing by herself, “but she wasn’t doing it to approach somebody.” The specialist also
worked with the children “on fine motor skills, self-feeding skills, and cognitive skills.” They
16
were feeding themselves with their fingers, had difficulty with attention and memory tasks such
as identifying animals in picture books, and lacked fine motor skills such as using a spoon.
Although the children had improved their functioning since meeting with her, the specialist
testified that they would continue to need therapy moving forward.
Another ECI specialist who evaluated the children testified that Molly “was
delayed nine months in development at a 47 percent delay,” “12 months delayed at a 63 percent
delay” in receptive communication, and “16 months delayed and an 84 percent delay” in
expressive communication. Molly also had a 21 percent delay in gross motor skills and a 10
percent delay in cognitive function. Sally had similar delays. Dr. Neha Patel, a pediatrician who
had evaluated Molly, testified that at 22 months old, she was at a developmental age of
approximately 12 to 14 months.
When the children were first brought into her care, Foster Mother had them
evaluated by Dr. Lynn Azuma, a pediatrician. Dr. Azuma testified that she examined both
children and observed that they had rashes, toe fissures, and labial adhesions as Foster Mother
had suspected. Azuma also observed during her initial evaluation that Molly had a bruise on her
right cheek. The labial adhesions were “moderate to severe,” and Azuma testified that their
cause was unknown, although possibilities included low estrogen, trauma, an infection, or dirty
diapers and poor hygiene. Azuma testified that she provided Foster Mother with medications
and treatment instructions for the children’s rashes, fissures, and adhesions and that “everything
improved” following treatment.
A nurse practitioner who had reviewed the children’s medical records prior to trial
testified that she reviewed photographs of the bruising to Molly and determined that “the
bruising was on two planes of the body, both on the front under actually the right eye, and then
17
along the side of the face around the right eye.” She testified that the bruising was not consistent
with Grandmother’s claim that Molly fell and hit a table. The nurse practitioner opined that the
bruising was “concerning for physical abuse.” Regarding the adhesions, the nurse practitioner
did not determine that they were caused by neglect. However, she added, “[T]he only thing
that’s a little bit concerning and not necessarily neglectful is that a reasonable adult should have
noted that there were adhesions and the girls should have been brought in for a medical
evaluation for that.” She believed that “it would be apparent that the labia was fused” to an adult
who was “doing good hygiene and good cleaning.”
Analysis
In arguing that the evidence is insufficient to support the finding that termination
of their parental rights is in the children’s best interest, Father and Mother focus almost
exclusively on favorable evidence regarding their proposed placement, Grandmother, including
evidence showing that the children were bonded to her, that she loved the children, that she had
raised them for more than half their lives, that she had adopted their older brothers, and that she
had received positive reports from the Department until the children’s visit with the foster family
in July 2022. Father and Mother also point out that the Department’s plan for the children,
adoption by the foster family, was uncertain at the time of trial. 2
2 We note that a supplemental clerk’s record was filed with this Court that included a
docket-sheet entry indicating that at a post-trial permanency hearing, the attorney ad litem for the
children requested that the Department assist with finding “another placement that would be
willing to adopt the girls.” However, our review is limited to the evidence that was before the
district court at the time of its ruling. See D.R. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-22-00777-CV, 2023 WL 3102616, at *9 n.6 (Tex. App.—Austin Apr. 27, 2023, pet.
denied) (mem. op.).
18
Although the above constitutes some evidence that is contrary to the finding that
termination of Father’s and Mother’s parental rights is in the children’s best interest, ample
evidence in the record nevertheless establishes that termination of their parental rights was in the
best interest of the children. This includes evidence showing that: (1) Mother was never the
children’s primary caregiver, and although she visited them regularly at the beginning of the
case, she had stopped visiting the children once the Department began supervising the
visitations, and it had been “months” since she had last seen the children; (2) Father had never
been the children’s caregiver and had visited them on only three occasions; (3) Father and
Mother had a history of violent behavior, including multiple assaults that Father had committed
against Mother (including one assault that occurred while Mother was pregnant with the
children) and an assault that Mother had committed against Grandmother’s sister in the presence
of the children; (4) Father and Mother had a history of substance abuse, and both tested positive
for illegal drugs while the case was ongoing, with Mother giving birth to another child who
tested positive for drugs at birth; (5) Father and Mother continued to engage in criminal activity
while the case was ongoing, including a burglary offense for which warrants for their arrest were
issued during trial; (6) Father and Mother failed to complete their court-ordered services,
including services that were designed to address their ongoing issues with substance abuse and
domestic violence; (6) Mother did not have a stable home or consistent employment at the time
of trial; (7) Father lived with family members who the Department determined had extensive
criminal histories and were ineligible as placement options; (8) on one occasion, Father and
Mother had attempted to visit the children at Grandmother’s home in violation of a court order
that prohibited them from doing so; and (9) despite the evidence that adoption by the foster
19
family was uncertain, there was considerable evidence presented that the children’s health and
development had improved while in the care of the foster family.
Viewing the above evidence in the light most favorable to the finding, we
conclude that a reasonable factfinder could form a firm belief or conviction that termination of
Father’s and Mother’s parental rights was in the best interest of the children. Therefore, the
evidence is legally sufficient to support the best-interest finding. Moreover, considering the
entire record, we cannot conclude that the evidence contrary to the finding is “so significant” that
the factfinder could not have formed a firm belief or conviction that termination of Father’s and
Mother’s parental rights was in the best interest of the children. Accordingly, the evidence is
also factually sufficient to support the best-interest finding.
We overrule Father’s and Mother’s first issue.
Conservatorship
In Father’s and Mother’s second issue and in Grandmother’s sole issue, they
assert that the district court abused its discretion in appointing the Department as Permanent
Managing Conservator of the children. In their view, Grandmother should have been appointed
managing conservator of the children.
As an initial matter, because Father’s and Mother’s parental rights have been
terminated, and we are affirming that portion of the district court’s order terminating their
parental rights, Father and Mother lack standing to challenge the district court’s conservatorship
decision. See Tex. Fam. Code § 161.206(b); In re H.M.M., 230 S.W.3d 204, 204-05
(Tex. App.—Houston [14th Dist.] 2006, no pet.); see also In re N.E., No. 01-22-00739-CV,
2023 WL 2530197, at *12 (Tex. App.—Houston [1st Dist.] Mar. 16, 2023, pet. denied)
20
(mem. op.); A.K. v. Texas Dep’t of Fam. and Protective Servs., No. 03-22-00285-CV,
2022 WL 14989625, at *10 (Tex. App.—Austin Oct. 27, 2022, pet. denied) (mem. op.).
Accordingly, only Grandmother’s challenge to that decision is properly before us.
Having terminated both Father’s and Mother’s parental rights, the trial court was
required to appoint either the Department or another permissible adult or agency as managing
conservator. See Tex. Fam. Code § 161.207(a); In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied). Conservatorship determinations “are subject to review
only for abuse of discretion and may be reversed only if the decision is arbitrary and
unreasonable.” In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Legal and factual sufficiency are
not independent grounds of error under this standard but are factors used to determine whether
the trial court abused its discretion. In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied); Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006,
pet. denied). Under this standard, an appellate court considers whether the trial court had
sufficient information on which to exercise its discretion and, if so, whether the trial court erred
in its application of discretion. Zeifman, 212 S.W.3d at 588. The findings necessary to support
the trial court’s conservatorship decisions need be supported by only a preponderance of the
evidence, rather than clear and convincing evidence. See Tex. Fam. Code § 105.005; J.A.J.,
243 S.W.3d at 616. A trial court does not abuse its discretion so long as there is some
substantive, probative evidence to support its decision. Zeifman, 212 S.W.3d at 587.
Here, the district court explained its conservatorship decision in a letter sent to the
parties before it issued its decree. The court wrote:
The evidence clearly demonstrated a significant bond between [Grandmother] and
21
the children. That they love each other and care for one another is certainly not in
doubt. I do not find that [Grandmother] abused or neglected the children.
However, the evidence also very clearly demonstrated some significant
developmental delays in each child, which were apparent while the children were
in her care but went undetected and untreated. The proven facts demonstrate the
benefit of diagnosis and treatment of their physical, emotional, and developmental
delays and the progress the children have made since their removal from the
family. Treatment is ongoing and continues to be necessary to ensure that the
children will overcome the identified deficits. In the final analysis, I find that it is
the best interest of the children to deny the relief requested by the Intervenor and
grant the petition by the Department of Family and Protective Services to be
named the Permanent Managing Conservator of the children.
“Some substantive, probative evidence” supports the district court’s decision. As
summarized above, medical professionals testified that the children had medical issues when
they were removed from Grandmother’s care and that their development and physical health
improved after the children received diagnosis and treatment. When the children’s medical
issues were brought to Grandmother’s attention, she either denied that the issues existed or
attempted to minimize their severity. She also did not notice the children’s labial adhesions,
which a pediatrician testified were “moderate to severe” and a nurse practitioner testified should
have been apparent to an adult who was “doing good hygiene and good cleaning” of the children.
Although Grandmother promised to do a better job caring for the children if they were returned
to her, the district court could have reasonably inferred that moving forward, the Department
would be better able to address the children’s ongoing special needs. Moreover, the district court
could have reasonably concluded that appointment of the Department as permanent managing
conservator would allow the foster family or some other family the opportunity to adopt the
children, which would provide the children with permanence and stability. On this record, we
cannot conclude that the district court’s decision to appoint the Department as permanent
managing conservator of the children was arbitrary or unreasonable.
22
We overrule Father’s and Mother’s second issue and Grandmother’s sole issue.
CONCLUSION
We affirm the district court’s termination decree.
__________________________________________
Gisela D. Triana, Justice
Before Chief Justice Byrne, Justices Baker and Triana
Affirmed
Filed: June 29, 2023
23