Opinion
01-22-00603-CV
02-15-2023
IN THE INTEREST OF C.K.H., Y.M.C. AKA Y.M.C. AKA Y.C., N.I.C. AKA N.I.C., CHILDREN
On Appeal from the 314th District Court Harris County, Texas Trial Court Case No. 2018-05116J
Panel consists of Justices Landau, Countiss, and Guerra.
MEMORANDUM OPINION
Sarah Beth Landau Justice
Appellants H.M.P.H. ("Mother") and S.A.G.C. ("Father") appeal the trial court's order terminating their parental rights to three children. Both Mother and Father contend (1) the termination order is void because the trial on the merits did not commence before the dismissal date in Section 263.401 of the Texas Family Code, and (2) the evidence was legally and factually insufficient to support the termination of their parental rights and the appointment of the Department as the children's sole managing conservator. Mother also contends the trial court made certain evidence-related errors. Finding no error in the trial court's order, we affirm.
Background
Mother has six children. Her rights to her oldest child, K.H., were previously terminated by another court. The termination order on appeal concerns three of Mother's other children: (1) C.K.H. ("Charlie") (born in 2008), (2) Y.M.C. ("Yara") (born in 2014), and (3) N.I.C. ("Natalie") (born in 2015). While the Department's petition to terminate Mother's parental rights as to these three children was pending, Mother moved to North Carolina and gave birth to twins, I.H. and J.H. The twins, who still reside out of state, are not the subject of this appeal. The trial court terminated Mother's parental rights only as to Charlie, Yara, and Natalie, who remained together in Texas foster care placements. Their placement at the time of trial included the possibility of adoption for all three children.
To protect their privacy, we refer to the children by pseudonyms.
Father is the biological father of four of Mother's children: Yara, Natalie, and the twins. The trial court terminated Father's parental rights as to Yara and Natalie only. Charlie has a different biological father whose parental rights were also terminated, but he has not appealed.
Thus, we have before us only the termination of Mother's parental rights as to Charlie, Yara, and Natalie, and the termination of Father's parental rights as to Yara and Natalie. We refer collectively to Charlie, Yara, and Natalie as "the children."
CPS History
As a parent, Mother has been involved with the Department for more than a decade. The Department investigated Mother twice in 2011, once after she was found unresponsive in a vehicle with Charlie, who was two years old, and a second time when she took Charlie to the hospital for a facial abrasion and appeared intoxicated. Investigations continued in 2012, when Mother's rights to her oldest child were terminated because, among other factors, Mother became addicted to prescription pain medication and exposed the child to domestic violence in her relationship with the child's father.
In 2017, Yara and Natalie were placed in the Department's care. At that time, Charlie resided with his biological father who has since been deported. The Department sought to be appointed Yara's and Natalie's temporary managing conservator because of Mother's "use of drugs and/or overuse of prescription medications" and Father's "failure to protect [Yara and Natalie] from [Mother]." In July 2018, the Department nonsuited its case against Mother and Father and supported family reunification.
But three months later, Yara and Natalie reentered the Department's care, together with Charlie. The Department had received three referrals in one month for neglectful supervision of the children. One referral alleged that Father was violent toward Yara and created a situation that could have injured Natalie, who is autistic and has special needs. The Department received another referral when Mother was taken to the hospital after a seizure, and no one was available to care for the children. The third referral alleged that Mother was walking with Yara and Natalie next to a road while she was "under the influence of some sort of powder," "incoherent," and not keeping Yara and Natalie away from traffic. The third referral also alleged that Mother left Charlie home alone and had not fed any of the children.
Trial court proceedings
The Department petitioned to terminate Mother's and Father's parental rights on October 23, 2018, and the trial court appointed the Department as the children's temporary managing conservator the same day. After granting a series of extensions of the one-year dismissal date in Texas Family Code Section 263.401, some of which were because of the COVID-19 pandemic, the trial court conducted the trial over ten days between June 2, 2021, and July 18, 2022.
While this case was pending, Governor Greg Abbott declared a state of disaster in the Texas's 254 counties in response to the imminent threat of the COVID-19 pandemic. The Texas Supreme Court issued several emergency orders regarding the suspension or modification of deadlines in court proceedings during the disaster. See, e.g., First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265, 265 (Tex. 2020); see also TEX. GOV'T CODE § 22.0035(b) (authorizing supreme court to "modify or suspend procedures for the conduct of any court proceeding affected by a disaster during the pendency of a disaster declared by the governor").
The Department asked the trial court to terminate Mother's and Father's parental rights because they "maintained a historical pattern of intertwined behaviors that jeopardized the children's welfare through ongoing domestic violence, improper use of drugs and alcohol, unspecified health issues [that] impair[ed] [their] behaviors, instability, and failure to work with the agency." Among other things, the Department presented evidence that Mother experienced domestic violence in her relationship with each of the children's fathers, and that the children were exposed to that violence.
As to Father, the trial court admitted into the evidence several Houston Police Department ("HPD") incident reports, including one stating that Father assaulted Mother and threatened to kill Mother and Charlie in September 2018. The next month, Mother told the Department's investigator that Father had kicked Yara. The investigator asked Charlie about the incident. He told her that he "heard a lot of yelling" and had "tried to keep his sisters in the room [with him]," but "they got out of the room." Father "kicked [Yara] in the stomach," and Yara "fell back on top of [Natalie]." Although Mother recalled that Father went to jail for alleged injuries to the children, she claimed not to recall the details related to the charge. Mother confirmed Father physically abused her.
The Department's permanency report notes that Father's injury-to-a-child charge was dismissed.
At trial, both Mother and Father denied that they continued to have a romantic relationship or lived together. The evidence, however, included conflicting information about the nature and extent of their continued contacts and their intention to co-parent the children. The support system Mother developed by moving to North Carolina consisted of Father's family. Although Mother testified that she did not know where Father lived because he traveled often for work, she also testified that Father stayed with his sister in North Carolina when he was not traveling. Although Mother testified that she was well-qualified to obtain employment because of her training in various fields, she remained financially dependent on Father. Although Mother testified that she had some savings and anticipated receiving settlement proceeds from a car accident, Father paid for Mother's housing and expenses in North Carolina so that she could stay home with the twins. And Mother allowed Father to visit the twins in public places, while she was present. She explained that she did so because allowing Father unsupervised visits with the twins might put them at risk.
Mother and Father also denied ongoing substance abuse. Mother testified that she had not used prescription medication or any illegal substances since Yara was born in February 2014. But there was conflicting evidence on this subject too. The Department presented records from the Harris Center for Mental Health ("Harris Center") stating that Mother tested positive for cannabis and opiates in November 2015 and was "actively withdrawing" from opiates and benzos" in January 2017. Other records from 2017 state that Mother reported to the Harris Center that she was discharged from a housing assistance program after twice testing positive for opioids, once upon arrival and again the next day.
Both Mother and Father missed drug screenings after the children were removed, even though that was one of the actions they needed to take under the court-ordered family services plan to be reunited with the children. Mother testified that she missed the drug screenings because she was unable to leave the house for a time after being injured in a car accident on July 5, 2020. But she missed some screenings before that date.
Mother and Father each had at least one positive drug test result after the children were removed. Father tested positive for cocaine in December 2018. In August 2019, Mother tested positive for benzodiazepine and alprazolam, which she explained was because of prescription medication. And in March 2020, while pregnant with the twins, Mother tested positive for marijuana in urinalysis. Mother attributed the positive result to an over-the-counter cannabinoid ("CBD") product, which she testified she stopped using.
Mother denied that she was ever incoherent around the children because of drug use. She testified that she has suffered from a seizure disorder since she was a child and for which she takes medication. According to Mother, she becomes incoherent after a seizure. She presented testimony from a family friend, R. Drake, that she sought assistance caring for the children when she was ill. Mother testified that she parented the twins, who were still in her care, well; had adequate housing in North Carolina; participated in substance abuse counseling and therapy; took medication to manage her addiction; completed the individual therapy required by the Department; and had considered plans for the children's educational and therapeutic needs in the event of reunification. Father expressed that he did not intend to live with Mother and the children upon reunification but would continue to support Mother financially.
After the parties rested but before closing arguments, the Mecklenburg County, North Carolina Department of Social Services ("North Carolina CPS") informed the Department that Mother was referred for services because Father assaulted her there. The Department moved to reopen the evidence and asked for permission to present the North Carolina referral and supporting evidence to the trial court. The trial court granted the Department's motion over Mother's objection that new evidence should not be allowed because any further delay in determining the status of her parental rights would be unjust.
When the trial continued, the trial court admitted the North Carolina CPS records as an exhibit and heard testimony from several witnesses about the referral, including two new witnesses from North Carolina CPS and others who had previously testified in trial such as the Department's caseworker and the child advocate. Mother also testified about the assault. She described how, in late March 2022, Father entered her North Carolina apartment through an open bedroom window and attacked her. She and the twins, who were not yet two years old, were asleep in the bedroom when the assault began. One of the twins stayed asleep during the assault, but the other woke up. According to Mother, Father struck her repeatedly with closed fists, choked her, pushed her, and pulled her hair. She defended herself and the twins, and she suffered "bruises," "hair loss," a "sore back," a "sore body," and "somewhat of a mild concussion." The twins were not physically injured.
Mother called 911 and sought medical attention after the assault, but she did not press charges against Father. She moved out of the apartment because "if [Father] knew where [she] was and he broke into [her] home and attacked [her], then it was obviously unsafe to continue staying there." Mother and the twins stayed for a time in an extended-stay hotel before moving into a new three-bedroom apartment with room for the other children. It was undisputed that Mother accepted Father's help moving into the new apartment.
Mother's North Carolina CPS caseworker expressed concern in her testimony that Mother was still being physically abused by Father because she twice observed "questionable marks" on Mother's body. She acknowledged she could not be certain Father caused the marks. The North Carolina CPS caseworker had not seen Mother and Father together, but Mother admitted to the caseworker that she had visited Father's family and attended a family funeral when Father was present.
After closing arguments, the trial court terminated Mother's parental rights to Charlie, Yara, and Natalie upon its findings under 161.001(b)(1)(E) ("Subsection (E)") (endangering conduct) and 161.001(b)(1)(O) ("Subsection (O)") (failure to comply with court order establishing actions necessary for return of the child). The trial court terminated Father's parental rights as to Yara and Natalie on these same grounds. Regarding the Subsection (O) findings, the trial court added that neither Mother nor Father had proved by a preponderance of the evidence that they were unable to comply with specific provisions of a court order and made a good faith effort to comply but were unable to do so through no fault of their own. In addition, the trial court found that termination of Mother's and Father's parental rights was in the best interests of the children. The trial court appointed DFPS as the children's sole managing conservator.
Jurisdiction
Both Mother and Father argue that the order terminating their parental rights is void because the trial court's jurisdiction over the Department's suit expired under Section 263.401 of the Texas Family Code before the trial commenced.
Section 263.401 encourages prompt resolution of suits in which the Department seeks to terminate the parent-child relationship or to be named conservator of a child. In re G.X.H., 627 S.W.3d 288, 292 (Tex. 2021). Section 263.401 does this by requiring trial courts to commence the trial on the merits within one year after the temporary order appointing the Department as temporary managing conservator. TEX. FAM. CODE § 263.401(a) (requiring trial to commence by "the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator"); In re G.X.H., 627 S.W.3d at 292. "In extraordinary circumstances defined in section 263.401(b), trial courts may extend that one-year deadline, or 'dismissal date' in the parlance of the statute." In re G.X.H., 627 S.W.3d at 292. But if the trial court does not commence trial by the dismissal date or extend the dismissal date in accordance with Section 263.401(b), the statute dictates that "the trial court's jurisdiction over the suit 'is terminated and the suit is automatically dismissed.'" Id. (quoting TEX. FAM. CODE § 263.401(a)).
Here, the Department filed its suit to terminate Mother's and Father's parental rights on October 23, 2018. The same day, the trial court issued temporary orders appointing the Department as the children's temporary managing conservator. Before the one-year deadline, the trial court extended the dismissal date under Section 263.401(b) to April 25, 2020.
The COVID-19 pandemic began before the April 25 dismissal date, and the Texas Supreme Court issued several emergency orders on the conduct of court proceedings during the pandemic. See TEX. GOV'T CODE § 22.0035(b). In its First Emergency Order, the Court directed:
2. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal-and must to avoid risk to court staff, parties, attorneys, jurors, and the public-without a participant's consent:
a. Modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than 30 days after the Governor's state of disaster has been lifted[.]
First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265, 265 (Tex. 2020). A subsequent emergency order confirmed this paragraph applied to the Section 263.401 deadlines. Third Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 266, 267 (Tex. 2020) ("Paragraph 2(a) of the [First Emergency] Order applies to all proceedings under Subtitle E, Title 5, of the Family Code, and specifically, to the deadlines in Section 263.401 ....").
Referencing the Texas Supreme Court's emergency orders, the trial court granted a series of extensions that pushed the dismissal date to July 9, 2021. Specifically, on April 23, 2020, the trial court signed an order pursuant to the First Emergency Order setting a new dismissal date of October 22, 2020. Before that extension expired, the Texas Supreme Court issued its Twenty-Sixth Emergency Order, authorizing an additional extension of up to 180 days for any case in which the dismissal date "was previously modified under an Emergency Order . . . related to COVID-19." Twenty-Sixth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 135, 135 (Tex. 2020). Then, on October 12, 2020, the trial court extended the dismissal date to March 17, 2021. And before that dismissal date, on January 27, 2021, under another emergency order allowing another 180-day extension, the trial court extended the dismissal date for the last time to July 9, 2021. See Thirty-Third Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d 179, 180 (Tex. 2021).
The parties disagree about whether the trial actually commenced before the July 9 dismissal date. According to the Department, the trial timely commenced one month before the dismissal date, on June 2, 2021, when the case was called, the parties made announcements, and one of the Department's witnesses briefly testified. But Mother and Father assert the June 2 proceeding was not sufficient to commence trial for purposes of Section 263.401, and that trial did not actually begin until August 16, 2021.
Mother also argued in her appellate brief that the trial court lacked authority to extend the dismissal date to July 9, 2021, because the earlier, October 22, 2020 dismissal date expired before any further extension was granted. But a supplemental clerk's record filed after Mother's appellate brief refutes the factual basis of her argument. The supplemental clerk's record contains the October 12, 2020 extension, which we reference above. The October 12, 2020 extension retained the case per the Twenty-Sixth Emergency Order and extended the dismissal deadline to March 17, 2021. Mother does not complain on appeal about the propriety of the October 12, 2020, order or any findings contained therein. Consequently, we limit our analysis to Mother's contention that trial only "fictitiously" commenced on June 2, 2021.
Section 263.401 "requires more than a putative call of the case and an immediate recess in order to comply with the statute." In re D.S., 455 S.W.3d 750, 753 (Tex. App.-Amarillo 2015, no pet.). Factors courts have considered in determining when a trial on the merits commenced include "the trial date[] recited in the final order, and whether, in the time between calling the case and recessing on the putative commencement date, (a) preliminary matters were addressed, (b) the parties announced 'ready,' (c) opening statements were made, (d) witnesses were sworn, (e) a party called a witness to testify, and (f) exhibits were admitted." In re J.L.J., 645 S.W.3d 294, 295-96 (Tex. App.-Houston [14th Dist.] 2022, pet. denied) (internal footnotes and citations omitted); see also In re D.S., 455 S.W.3d at 753 (suggesting that to commence trial for purposes of Section 263.401, "at a minimum[,] the parties should be called upon to make their respective announcements and the trial court should ascertain whether there are any preliminary matters to be taken up").
On June 2, 2021, the trial court stated on the record that "the matter [was] set for trial" and swore witnesses. The parties made announcements. All but Mother's counsel announced "ready." The trial court considered counsel's announcement of "not ready" as an oral motion for continuance, which it denied.
In addition, the trial court took certain actions related to witnesses. First, it granted a request from Mother's counsel that one of Mother's witnesses be sworn to return to a later setting in August. Second, the trial court instructed the Department: "I need to start the trial, so will you call your first witness very briefly and just ask a few substantive questions about where the children are and that's about all I'll need. Okay." The Department called Mother. But before Mother gave any testimony, the parties stipulated that the Department could call its caseworker, D. Vidal, out of order instead. Vidal gave the following testimony:
Q. Ms. Vidal, will you please state your name for the court?
A. S[.] [sic] Vidal.
Q. Are you the CPS worked [sic] in this matter?
A. Yes.
Q. How old are the children and where are they placed?
A. I'm sorry. I don't have the age right in front of me. But they're all placed in a foster home.
Q. Does 5, 7[,] and 12 sound about right?
A. Yes.
Q. And where are they placed?
A. In a foster home.
No exhibits were admitted, but the trial court asked the parties to conference after the proceeding about exhibits and agree where they could on admissibility. The trial court then recessed until August 16, 2021. When trial resumed on August 16, neither Mother's nor Father's counsel objected that the trial court had been divested of jurisdiction over the suit. Both announced "ready."
Mother and Father assert the June 2 proceeding was nothing more than a "sham" or "ruse" to circumvent the statutory time limit on the trial court's jurisdiction. Both liken this case to In re D.S., 455 S.W.3d 750 (Tex. App.- Amarillo 2015, no pet.). But D.S. is distinguishable and offers no support for Mother's and Father's position.
In D.S., the trial court merely "called the attorneys representing the parties to the bench . . . [and] made inquiry into the length of time a trial would take." Id. at 752. Once informed, the trial court recessed the proceedings and told counsel to obtain a later trial date from the court coordinator. Id. Unlike the facts here, in D.S., no readiness announcements were made, no witnesses were sworn, and no testimony was taken-matters the appeals court indicated would have changed its resolution had they taken place. Id. Against this background, the appeals court concluded that such a "putative call of the case and an immediate recess" was not a commencement of trial under Section 263.401. Id. at 753.
The more substantive actions by the trial court here make this case analogous to other authority. For example, in In re R.F., Jr., on the date in question, the trial court asked if the parties were ready to proceed to trial. In re R.F., Jr., No. 04-17-00582-CV, 2018 WL 1308542, at *1 (Tex. App.-San Antonio Mar. 14, 2018, no pet.) (mem. op.). Father announced not ready and moved for a continuance and, alternatively, to dismiss. Id. The trial court denied the motions and proceeded to trial without additional objection from Father. Id. The Department called its first witness, a caseworker, who provided "brief testimony" before the trial court recessed. Id. The appeals court found this sufficient to establish that the trial timely commenced and preserved the trial court's jurisdiction of the case under Section 263.401. Id.
Similarly, in In re R.J., a panel of this Court concluded that trial commenced under Section 263.401 when, as here, the case was called to trial, witnesses were sworn, the parties made announcements, and a witness for the Department "briefly testified" before the trial court recessed. In re R.J., 579 S.W.3d 97, 109-10 (Tex. App.-Houston [1st Dist.] 2019, pet. denied).
Applying R.F., Jr. and R.J., we conclude that the trial court timely commenced the trial on the merits on June 2, 2021. See id.; accord In re H.B.C., No. 05-19-00907-CV, 2020 WL 400162, at *13 (Tex. App.-Dallas Jan. 23, 2020, no pet.) (mem. op.) (trial commenced when trial court called case, counsel for all parties announced they were ready, pretrial motions were addressed, and witness was sworn in and gave brief testimony before recess); In re R.F., Jr., 2018 WL 1308542, at *1 (trial commenced when trial court addressed pretrial motions and Department called witness who briefly testified before recess). Because the trial on the merits commenced before the extended automatic dismissal date of July 9, 2021, we hold the trial court did not lose jurisdiction of the case under Section 263.401. See TEX. FAM. CODE § 263.401(a), (b); see also In re R.J., 579 S.W.3d at 109-10.
We overrule Mother's first issue and Father's first issue.
Errors Related to the Evidence
In her appeal, Mother contends the trial court made several errors related to the evidence. She challenges (1) the trial court's decision to allow additional evidence after the parties rested but before closing argument, both under the Texas Rules of Civil Procedure and as a matter of procedural due process; (2) the admissibility of certain evidence; and (3) the trial court's purported comments on the weight of the evidence. We address these issues to the extent they are properly before us.
A. Trial court's decision to reopen the evidence under Texas Rule of Civil Procedure 270
The parties first rested in this case on March 4, 2022. Before the parties reconvened for closing argument, the Department moved to reopen the evidence. The Department asserted that it learned after the parties rested that Mother was "referred to complete in-home [child protective] services" in North Carolina and that additional testimony was needed for the children's safety. The trial court granted the Department's motion, which Mother contends was error.
In a bench trial, a trial court may permit additional evidence to be offered "at any time" when "necessary to the due administration of justice." TEX. R. CIV. P. 270; Moore v. Jet Stream Invs., Ltd., 315 S.W.3d 195, 201 (Tex. App.-Texarkana 2010, pet. denied). The trial court's decision to reopen the evidence will not be overturned on appeal, absent an abuse of discretion. Maher v. Maher, No. 01-14-00106-CV, 2016 WL 4536283, at *8 (Tex. App.-Houston [1st Dist.] Aug. 30, 2016, no pet.) (mem. op.); Poag v. Flories, 317 S.W.3d 820, 828 (Tex. App.-Fort Worth 2010, pet. denied). "Notably, trial courts are implored to exercise their discretion liberally in the interest of justice, so that all parties are permitted to fully develop their case." Maher, 2016 WL 4536283, at *8. In deciding whether to reopen the evidence, a court should consider whether: (1) the moving party showed due diligence in obtaining the evidence, (2) the proffered evidence is decisive, (3) the reception of such evidence will cause undue delay, and (4) granting the motion to reopen evidence will cause injustice. Maher, 2016 WL 4536283, at *8; Poag, 317 S.W.3d at 828.
Considering these factors, we find no abuse of the trial court's discretion to reopen the evidence. The trial court could reasonably find that the Department was diligent in obtaining the evidence. The Department's counsel stated at the hearing on the motion to reopen evidence that the North Carolina referral came to her attention on April 14, 2022, when "North Carolina reached out to [Texas]." There was no suggestion that the Department lacked diligence in pursuing or notifying the trial court of the new evidence thereafter. The North Carolina referral resulted from Father's physical abuse of Mother that had not yet occurred when the parties rested.
Beyond Rule 270's application, Mother asserts additional reasons why the trial court should have excluded the new evidence related to the North Carolina referral for services. We address Mother's additional arguments under the section on the admissibility of the evidence, to the extent those complaints are properly before us.
Courts have held that the statements of an attorney on the record may be considered as evidence absent objection. See generally Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) ("While statements by neither [attorney] were under oath, the oath requirement was waived when neither raised any objection in circumstances that clearly indicated each was tendering evidence on the record based on personal knowledge on the sole contested issue."); Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (attorney's unsworn statements tendered as evidence were sufficient absent objection).
There is no dispute the evidence was decisive. As the Department points out, the factors in Section 263.307 of the Family Code are relevant in the trial court's best-interest determination. See TEX. FAM. CODE § 263.307; In re A.C., 560 S.W.3d 624, 631 n.29 (Tex. 2018). And those factors include, among others, "whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home" and whether the child's family can provide the child "a safe physical home environment." TEX. FAM. CODE § 263.307(b)(7), (12)(D).
Regarding any undue delay or injustice resulting from the reception of new evidence, Mother points out that the case had been pending for more than three and a half years when the Department moved to reopen the evidence, undermining the Legislature's goal of efficient resolution of termination proceedings. See TEX. FAM. CODE § 263.401. And she argues that the Department should not be rewarded for dragging out the proceedings such that "if the [Department] could not meet its burden when the case was originally set, it might be able to if other evidence comes into play simply because the[] case was not promptly tried to a conclusion[.]"
Mother does not unreasonably complain about how long the case pended. See In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) ("The Legislature and our courts have labored to ensure that proceedings to terminate a parent's legal relationship to her child are handled efficiently."). But the delay is not attributable solely, or even largely, to the reopening of the evidence. As noted, more than one extension was attributable to the COVID-19 pandemic.
The trial court also stated on the record that it would have considered the North Carolina evidence anyway in determining whether Mother should have in-person visits with the children while the case remained pending, which is something Mother requested around the same time the Department moved to reopen the evidence. And the trial court sought to ease any hardship to Mother by ordering North Carolina CPS, who were present at the hearing on the motion to reopen evidence, to share information about the referral with her counsel.
We overrule that part of Mother's second issue complaining about the reopening of the evidence under Texas Rule of Civil Procedure 270.
B. Trial court's decision to reopen the evidence as a matter of procedural due process
Mother contends that even if the trial court's decision to reopen the evidence was not an abuse of discretion under Texas Rule of Civil Procedure 270, it violated her right to due process of law under the United States Constitution and due course of law under the Texas Constitution. See U.S. CONST. amend. XIV, § 1 (providing that no State shall "deprive any person of life, liberty, or property without due process of law"); TEX. CONST. art. I, § 9 ("No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land."). Mother asserts she did not have an adequate opportunity to prepare a defense of the North Carolina allegations.
For claims of procedural due process, the Texas Supreme Court has found no meaningful distinction between Texas's due-course-of-law protection and the federal constitution's due process guarantee. Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). In a due-course-of-law analysis, courts look to federal cases construing the guarantee of due process as persuasive authority. NCAA v. Yeo, 171 S.W.3d 863, 867-68 & 867 n.14 (Tex. 2005). We, therefore, conform our discussion to the claimed denial of due process under the United States Constitution. See In re T.L.B., No. 07-07-00349-CV, 2008 WL 5245905, at *2 n. 7 (Tex. App.- Amarillo Dec. 17, 2008, no pet.) (mem. op.).
We note the Department's contention that Mother waived her procedural due process complaint because she objected in the trial court that allowing evidence related to the North Carolina referral "violate[d] her constitutional rights" without specifying what constitutional right she was talking about. But the record shows that the trial court understood from the context of Mother's argument that she was complaining about due process. Thus, we disagree that Mother's objection was not sufficiently specific to preserve error. See TEX. R. APP. P. 33.1(a)(1)(A) (allowing preservation of error when "specific grounds [for objection] were apparent from context").
In analyzing a claim of deprivation of procedural due process, we apply a two-part test: (1) whether the complaining party has a liberty or property interest entitled to protection; and (2) if so, what process is due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995). "[D]ue process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard." Boddie v. Connecticut, 401 U.S. 371, 377 (1971).
Parents have a fundamental liberty interest "in the care, custody, and management of their child." Santosky v. Kramer, 455 U.S. 745, 753 (1982). Mother was therefore entitled to due process in the termination proceeding. See In re R.M.T., 352 S.W.3d 12, 17 (Tex. App.-Texarkana 2011, no pet.); Martinez v. Tex. Dep't of Protective &Reg. Servs., 116 S.W.3d 266, 271 (Tex. App.-El Paso 2003, pet. denied).
At a minimum, due process requires notice and an opportunity to be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). What process is due in any situation is measured by a flexible standard that depends on the practical requirements of the circumstances. Eldridge, 424 U.S. at 334. To assess what process Mother was due, we weigh the three factors developed in Eldridge: "(1) the private interest affected by the proceeding or official action; (2) the countervailing governmental interest supporting use of the challenged proceeding; and (3) the risk of an erroneous deprivation of that interest due to the procedures used." In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003) (citing Eldridge, 424 U.S. at 335). Courts must weigh these factors to determine whether the fundamental requirements of due process have been met by affording an opportunity to be heard at a meaningful time and in a meaningful manner under the circumstances of the case. See City of L.A. v. David, 538 U.S. 715, 717 (2003). Once these Eldridge factors are weighed against each other, the court must "balance the net result against the presumption" that the procedure applied did not violate due process. In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).
Regarding the first factor-the private interest affected by the proceeding or official action-a "parent's interest in maintaining custody of and raising his or her child is paramount." Id. For this reason, a parent's interest in the accuracy and justice of the decision to terminate his or her parental status is a commanding one. Id. The private interests of the child must also be considered. Id. "Both the parent and the child have a substantial interest in the accuracy and justice of a decision." Id. The considerations involved in this case-namely, Mother's fundamental liberty interest in maintaining custody and control of the children, the risk of permanent loss of the parent-child relationship between them, and Mother's, Father's, and the children's interest in a just and accurate decision-weigh in favor of Mother's claim that due process required that she have an adequate opportunity to prepare a defense of the new North Carolina allegations as it concerned the termination of her parental rights in Texas. See id. at 548.
Regarding the second factor-the countervailing government interest supporting use of the challenged proceeding-the State's interest in the proceeding includes protecting the best interest of the child, an interest which is "served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home." Id. at 548-49; see also In re B.L.D., 113 S.W.3d at 353 (noting State's "parens patriae interest in promoting the welfare of the child" aligns with the parent's interest in a just and accurate decision).
Mother had ample opportunity to challenge and scrutinize the Department's case for termination of her parental rights and to present her own defense. The record reflects that Mother actively participated in all aspects of the trial proceedings, including after the evidence was reopened. Her counsel conducted a robust cross-examination of the Department's two North Carolina CPS witnesses. And Mother was given the opportunity at the reopened trial to present her own evidence. She testified extensively about the North Carolina allegations, a subject on which she had personal knowledge as victim of the physical abuse and a person referred for services. In her appellate brief, Mother makes no specific reference to what, if anything, she was prevented from presenting at trial. Thus, Mother had sufficient opportunity to formulate a defense and be heard at a meaningful time and in a meaningful manner in this case. Accordingly, we conclude that the second factor is neutral or weighs against the finding of a deprivation of due process in this case. See Shaw v. Harris Cnty. Guardianship Program, No. 01-17-00214-CV, 2018 WL 323337, at *5 (Tex. App.-Houston [1st Dist.] July 3, 2018, pet. denied) (mem. op.).
The third factor pertains to the risk of an erroneous deprivation of the private interest due to the procedures used. As discussed, Mother had ample opportunity to challenge and scrutinize the Department's case, and to formulate her own defense to the North Carolina allegations as it concerned the termination of her parental rights. Given her active participation at trial and the robustness of her defense, we conclude that the third factor is neutral or weighs against the finding of a deprivation of due process in this case. See In re B.T.D., No. 01-16-00582-CV, 2017 WL 343613, at *5 (Tex. App.-Houston [1st Dist.] Jan. 20, 2017, no pet.) (mem. op.).
When the Eldridge factors are balanced against the presumption that the trial court's decision to reopen the evidence comports with constitutional due process requirements, we find that presumption has not been overcome. See In re M.S., 115 S.W.3d at 547 (net result of Eldridge factors must be balanced against presumption that procedural rules comport with constitutional due process requirements).
We overrule that part of Mother's second issue complaining that reopening the evidence violated procedural due process requirements.
C. Trial court's rulings on the admissibility of certain evidence
Several of Mother's complaints concern the admissibility of evidence. We review the trial court's decision to admit evidence for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (applying abuse-of-discretion standard to review of trial court's decision to admit or exclude evidence at termination trial); Corrales v. Dep't of Fam. &Protective Servs., 155 S.W.3d 478, 485 (Tex. App.- El Paso 2004, no pet.). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Put differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984); Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex. 1970). The mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court in a similar circumstance does not demonstrate that an abuse of discretion has occurred. S.W. Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 321 S.W.2d 290, 295 (Tex. 1959). Even if we conclude the trial court erred in admitting the complained-of evidence, we may not reverse the trial court's order unless we conclude the evidentiary error probably caused rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); In re E.A.K., 192 S.W.3d 133, 148 (Tex. App.- Houston [14th Dist.] 2006, pet. denied).
1. Houston Police Department incident reports
Mother contends that the trial court erred in admitting certain HPD incident reports-the Department's exhibits 21 and 22-that contained inadmissible hearsay and double hearsay. Mother complains that the incident reports include statements from witnesses who were not present for trial and unavailable for cross-examination. The Department argued in the trial court that the incident reports were admissible under the public-records exception to the hearsay rule. See TEX. R. EVID. 803(8). We agree.
The public-records exception is found in Texas Rule of Evidence 803(8). It provides that a "record or statement of a public office" is not excluded by the hearsay rule if it sets out: (1) "the office's activities"; (2) "a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personal"; or (3) "in a civil case . . . factual findings from a legally authorized investigation" when the party opposing admission "fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness." TEX. R. EVID. 803(8). There is a presumption of admissibility, and the burden is on the party opposing admission, Mother here, to show the record is untrustworthy. See Corrales, 155 S.W.3d at 486.
The HPD incident reports were admissible as public records under Rule 803(8). See TEX. R. EVID. 803(8). They set forth the activities of the police department, involved matters observed under a legal duty to report, and contained factual findings from an investigation made under authority granted by law. See id. Even if the witness statements contained in the incident reports may not qualify as a public record, see L.M. v. Dep't of Fam. &Protective Servs., No. 01-11-00137-CV, 2012 WL 2923132, at *6 (Tex. App.-Houston [1st Dist.] July 12, 2012, pet. denied) (mem. op.) (concluding witness statement in police officer's report did not qualify under public-records exception), their inclusion does not make the trial court's decision to admit the incident reports an abuse of discretion. See Corrales, 155 S.W.3d at 486-87 (concluding, in termination of parental rights proceeding, that police reports that contained results of investigations and included testimony from witnesses who were unavailable for cross-examination were admissible under public-records exception). Mother did not specifically indicate, either in the trial court or on appeal, which statements she contends are inadmissible or why they demonstrate a lack of trustworthiness. "[A] general objection to evidence as a whole, which does not point specifically to the portion objected to, is properly overruled if any part of that evidence is admissible." L.M., 2012 WL 2923132, at *6. Because the incident reports are public records, and Mother did not specifically indicate which portions of the incident reports were inadmissible, we hold that the trial court's decision to admit them was not an abuse of discretion. See TEX. R. EVID. 803(8); see also L.M., 2012 WL 2923132, at *6; Corrales, 155 S.W.3d at 486-87.
The exhibits, combined, are more than 55 pages in length.
We overrule that part of Mother's second issue challenging the admission of the HPD incident reports.
2. Child advocate testimony about child-endangerment indictment
Mother contends the trial court abused its discretion by admitting evidence that she was indicted by a Harris County grand jury for the offense of child endangerment in October 2018, after she was found disoriented and wandering with Yara and Natalie outside and Charlie was left alone. By the record citation in her brief, Mother asserts that the error occurred when child advocate, E. Gonzales, gave the following testimony:
The indictment charges that Mother endangered Charlie by "leaving [him] in an apartment with health and safety concerns," without food or drink. Mother requests in her brief that we take judicial notice that the charge was dismissed. As documentation, Mother attached to her brief a certified copy of an order dismissing the charge on April 26, 2022, which was after the parties initially rested but before the trial court reopened the evidence and rendered its judgment. We decline to take judicial notice. "Generally, appellate courts take judicial notice of facts outside the record only to determine jurisdiction or to resolve matters ancillary to decisions which are mandated by law." In re R.A., 417 S.W.3d 569, 576 (Tex. App.-El Paso 2013, no pet.). "Appellate courts are reluctant to take judicial notice of matters which go to the merits of a dispute." Id.; see also In re K.L.R., 162 S.W.3d 291, 306 (Tex. App.-Tyler 2005, no pet.) (appellate court should not take judicial notice of "records of any court not properly admitted into the evidence before the trial court" or "unavailable to the trial court").
Q. And have you also looked at the criminal history on [Mother]?
A. I have.
Q. Is there a current charge pending against her?
A. There is a current charge pending.
Q. Do you know what the charge is?
A. It's endangerment.
Mother objected that the testimony violated a pretrial stipulation that "the [child-endangerment] charge would not be held against her" in the termination proceeding. Before Gonzales testified and Mother objected, however, the indictment itself was admitted into the evidence without any objection based on any pretrial stipulation. Because the objected-to testimony from Gonzales was cumulative of the information in the already admitted indictment, any error in allowing the testimony was harmless. See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.-Houston [1st Dist.] 1996) ("The erroneous admission of evidence that is merely cumulative of properly admitted evidence is harmless."), aff'd, 972 S.W.2d 35 (Tex. 1998); Garza v. Cole, 753 S.W.2d 245, 248 (Tex. App.- Houston [14th Dist.] 1987, writ ref'd n.r.e.) (where trial court errs in "admit[ting] evidence of a nature that is largely repetitious" of other testimony, error is harmless).
Mother objected that the indictment was more prejudicial than probative, but she has not re-urged that objection on appeal.
We overrule that part of Mother's second issue challenging the admission of Gonzales's testimony about the child-endangerment charge.
3. Child advocate hearsay testimony
Mother contends the trial court abused its discretion by admitting other testimony from Gonzales that was hearsay as to the "statements of the children and the contents of other documents that she reviewed that were not admitted." This contention is waived because of inadequate briefing.
Texas Rule of Appellate Procedure 38.1(i) requires an appellant's brief to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." TEX. R. APP. P. 38.1(i). The rule is not satisfied when an appellant "merely utter[s] brief conclusory statements, unsupported by legal citations." Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.-Houston [1st Dist.] 2002, pet. denied); see also Barham v. Turner Constr. Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.-Dallas 1990, writ denied) (appellant bears burden of discussing asserted error). The appellant's failure to provide substantive analysis of an issue or cite appropriate authority waives her complaint on appeal. Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.-San Antonio 2011, no pet.); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.-Dallas 2006, no pet.); Cervantes-Peterson v. Tex. Dep't of Fam. &Protective Servs., 221 S.W.3d 244, 255 (Tex. App.-Houston [1st Dist.] 2006, no pet.).
Here, Mother does not specifically identify the objectionable testimony. Mother cites to ten pages of the record, which contain six different hearsay objections in connection with testimony about whether the children are happy in their foster care placement or fear returning to Mother and whether Gonzales "evaluated the propensity for violence and instability as well as drug usage" in forming her opinion on the children's best interests. In overruling Mother's various hearsay objections, the trial court expressed its opinion that the objected-to testimony was admissible because it was part of how the child advocate formed her opinion on the children's best interests. Even assuming Mother re-urges all six hearsay objections on appeal, she has not cited legal authority or provided any substantive analysis addressing the trial court's reason for overruling the objections.
The argument in Mother's opening brief reads in its entirety:
[Mother] objected again when the trial court improperly allowed Gonzales to testify as to the hearsay statements of the children and the contents of other documents that she reviewed that were not admitted.... By not sustaining these timely and proper objections, [Mother] was deprived of her rights to challenge and cross-examine the person or persons who made such statement and put them through the crucible of cross-examination.
Mother adds in her reply brief that "[t]he statements of the children were not offered in the form of a bolstering opinion of the witness as to the feelings of another person." The reply brief also adds, in connection with the child advocate's reliance on "the content of other documents," that:
When Gonzales was asked to express opinions and whether those were based upon the content [of] documents that were not admitted into the evidence and for which no exception to hearsay was provided, her recitation of the contents of hearsay documents were properly preserved by a hearsay objection. It was error for the trial court to allow this back door hearsay into evidence.
But none of these arguments are supported by legal authority or substantively address the trial court's determination that the child advocate could rely on information, even if hearsay, in forming her opinion on best interests. Consequently, Mother's briefing does not meet the minimum required to present an issue or argument for appellate review. See TEX. R. APP. P. 38.1(i); see also Patriot Contracting, LLC v. Shelter Prods., Inc., 650 S.W.3d 627, 648 n.24 (Tex. App.- Houston [1st Dist.] 2021, pet. denied) ("A failure to provide substantive analysis of an issue or cite appropriate authority waives a complaint on appeal.").
We overrule that part of Mother's second issue challenging the admission of Gonzales's hearsay testimony.
4. Caseworker hearsay testimony
Mother contends the trial court abused its discretion by admitting testimony from the Department's caseworker, D. Vidal, on "the recommendations of [Mother's] psychologist over repeated hearsay objections." This point too is inadequately briefed because Mother cites no legal authority and provides no substantive analysis. See TEX. R. APP. P. 38.1(i); Patriot Contracting, 650 S.W.3d at 648 n.24.
To the extent Mother had presented any error in allowing Vidal's testimony, however, the error would be harmless. Mother objected to hearsay during the following exchange:
Q. ... Now, let's go on to the other part of the Family Service Plan regarding recommendations; and that concerns the psychological evaluation, correct?
A. Correct.
Q. Again, . . . did the psychological evaluation cross your desk; and, if so, did it identify recommendations?
A. Yes.
Q. Now - [Mother's counsel]: Objection, calls for hearsay. [Trial court]: Overruled.
Q. What were they?
A. Mother is to submit to random drug tests. [Mother's counsel]: Objection, calls for hearsay. [Trial court]: I'll overrule it.
A. Mother is to undergo a full medical checkup, complete a psychiatric evaluation, continue attending Narcotics Anonymous, participate in individual counseling, case needs referral to CASA, which is Child Advocates and, lastly, maintain safe and stable housing.
As pointed out by the Department, Vidal's testimony about the psychologist's recommendations was cumulative of other previously admitted, unobjected-to evidence. Before Vidal testified, the trial court admitted the Department's permanency report into the evidence without objection, and that report stated the recommendations of Mother's psychological evaluation. See Owens-Corning Fiberglas Corp, 916 S.W.2d at 557 ("The erroneous admission of evidence that is merely cumulative of properly admitted evidence is harmless.").
We overrule that part of Mother's second issue challenging the admission of Vidal's testimony.
5. North Carolina CPS records
Mother contends the trial court abused its discretion by admitting the North Carolina CPS records. Mother argues the North Carolina CPS records are inadmissible because they "were hearsay, . . . not timely filed, her attorney needed a continuance and more time to review the late-filed records[,] and that [the Department] had a duty to supplement discovery in a timely manner if it had intended to use [the records] at all." She also asserts the North Carolina CPS records contained double hearsay in the form of reports of neglect from "unidentified third parties that [Mother] could not challenge," and that the records were not authenticated. But, for several reasons, Mother's arguments against admission of the North Carolina CPS records present nothing for appellate review.
First, Mother's briefs lack citation to legal authority in support of her objections to the North Carolina CPS records. See TEX. R. APP. P. 38.1(i); Patriot Contracting, 650 S.W.3d at 648 n.24; see also Fredonia State Bank v. Gen. Am. Life Ins., 881 S.W.2d 279, 284-85 (Tex. 1994) (issue that is inadequately briefed is waived on appeal).
Second, Mother offers no substantive argument about the admissibility of the North Carolina CPS records under the hearsay rule or any of its exclusions. See TEX. R. APP. P. 38.1(i); Bullock v. Am. Heart Ass'n, 360 S.W.3d 661, 665 (Tex. App.- Dallas 2012, pet. denied) ("It is appellant's burden to discuss her assertions of error. [The appellate court has] no duty-or even right-to perform an independent review of the record and applicable law to determine whether there was error."). For instance, she does not argue why the North Carolina CPS records, like the HPD incident reports, were not admissible under the public-records exception to the hearsay rule because they set forth the activities of a public office, involve matters observed under a legal duty to report, and contain factual findings from an investigation made under authority granted by law. See TEX. R. EVID. 803(8). Nor does she identify the specific statements in the North Carolina CPS records, an exhibit occupying more than 145 pages of the appellate record, that she objects to as double hearsay or explain why those statements indicate a lack of trustworthiness. See L.M., 2012 WL 2923132, at *6; Corrales, 155 S.W.3d at 486-87; see also TEX. R. APP. P. 33.1(a)(1)(A) (requiring objections to be made with "sufficient specificity to make the trial court aware of the complaint"); In re B.T.D., No. 01-16-00582-CV, 2017 WL 343613, at *7 (Tex. App.-Houston [1st Dist.] Jan. 20, 2017, no pet.) (mem. op.) ("[W]e have 'no duty to search a voluminous record without guidance from appellant to determine whether an assertion of reversible error is valid.'"). She made only a general objection in the trial court and in this Court. L.M., 2012 WL 2923132, at *6 ("[A] general objection to evidence as a whole, which does not point specifically the portion objected to, is properly overruled if any part of that evidence is admissible.").
The same is true for Mother's timing-related objections. Mother contends that the North Carolina CPS records were not "timely" received by her counsel under rules for supplementing discovery, or other unidentified rules for the admission of late-filed evidence, and that her counsel needed more time to review the records. But again, this argument is asserted without any discussion of the legal standards that govern deadlines for filing exhibits in the Texas Rules of Evidence, the duty to supplement discovery, or the exclusionary remedy for late-filed evidence, and therefore is not properly presented. See TEX. R. APP. P. 38.1(i); Patriot Contracting, 650 S.W.3d at 648 n.24; L.M., 2012 WL 2923132, at *6.
In addition, although Mother complains on appeal that the North Carolina CPS records were not authenticated, she did not make that objection when the records were admitted into the evidence or on any of the cited pages from the appellate record. Mother's complaints on appeal must comport with her complaints in the trial court; otherwise, they present nothing for appellate review. See TEX. R. APP. P. 33.1(a); see, e.g., In re G.P., No. 01-16-00346-CV, 2016 WL 6216192, at *27 (Tex. App.-Houston [1st Dist.] Oct. 25, 2016, no pet.) (mem. op.) (refusing to address objection not raised in trial court); In re R.R., No. 01-10-01069-CV, 2011 WL 5026229, at *4 (Tex. App.-Houston [1st Dist.] Oct. 20, 2011, pet. denied) (mem. op.) (considering only contentions on appeal "that comport with objections made at trial").
We overrule that part of Mother's second issue challenging the admission of the North Carolina CPS records.
D. Comments on the evidence
Mother contends the trial court made two comments at trial that improperly influenced her counsel to present a less zealous defense against termination of her parental rights for failure to comply with the court-ordered family services plan under Subsection (O). TEX. FAM. CODE § 161.001(b)(1)(O). Mother asserts the trial court's comments misled her counsel into believing that a Subsection (O) termination was unlikely, and consequently, he was "dissuaded from presenting material and relevant evidence."
To be reversible, error must be harmful. See TEX. R. APP. P. 44.1(a) (prohibiting reversal of judgment unless complained-of error (1) probably caused rendition of improper judgment or (2) probably prevented appellant from properly presenting case to court of appeals). A single predicate finding under Section 161.001(b)(1) of the Texas Family Code supports a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). For reasons stated in our analysis below, the evidence was legally and factually sufficient to support the trial court's findings that Mother engaged in endangering conduct under the alternative Subsection (E) predicate and that termination of her parental rights was in the children's best interest. Thus, to the extent that Mother complains of error leading to the Subsection (O) finding, that error, if any, would be harmless. See TEX. R. APP. P. 44.1(a).
We overrule that part of Mother's second issue complaining of the trial court's comments.
Sufficiency of Evidence to Support Termination
Both Mother and Father argue that the trial court erred by terminating their parental rights because the evidence was legally and factually insufficient to support its predicate findings under Section 161.001(b)(1)(E) and (O) and its finding that termination of the parent-child relationship was in the children's best interests.
A. Standard of review and applicable law
A parent's rights to the "companionship, care, custody, and management" of his or her children are constitutional interests "far more precious than any property right." Santosky, 455 U.S. at 758-59; see In re M.S., 115 S.W.3d at 547. A termination decree is final, irrevocable, and permanently divests the parent of all legal rights, privileges, duties, and powers as to the parent-child relationship, except for the child's right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). We strictly scrutinize termination proceedings and strictly construe the involuntary termination statutes in the parent's favor. Id. But the "rights of natural parents are not absolute" and the "rights of parenthood are accorded only to those fit to accept the accompanying responsibilities." In re A.V., 113 S.W.3d at 361. Recognizing that parents may forfeit their parental rights by their acts or omissions, the primary focus of any termination suit is protection of the child's best interest. See id.
Because of the severity and permanency of the termination of parental rights, the evidence supporting termination must meet the threshold of clear and convincing evidence. TEX. FAM. CODE § 161.001(b); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). "'Clear and convincing evidence' means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE § 101.007. This is an intermediate standard that falls between "preponderance of the evidence" used in ordinary civil proceedings and "reasonable doubt" used in criminal proceedings. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam).
This heightened burden of proof results in a heightened standard of review. In re S.R., 452 S.W.3d 351, 358 (Tex. App.-Houston [14th Dist.] 2014, pet. denied). When the legal sufficiency of the evidence supporting termination is challenged, the appellate court reviews the evidence in the light most favorable to the termination finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). The court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. at 344. It should disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. In re J.F.C., 96 S.W.3d at 266. If, after conducting a legal sufficiency review of the record evidence, the court determines that no reasonable factfinder could have formed a firm belief or conviction that the matter to be proved was true, the court must conclude that the evidence on that matter is legally insufficient. Id.
Only when the factual sufficiency of the evidence is challenged does the reviewing court review disputed or conflicting evidence. Id. "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, then the evidence is factually insufficient." Id. We give due deference to the factfinder's findings, and we cannot substitute our own judgment for that of the factfinder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). The factfinder is the sole arbiter when assessing the credibility and demeanor of witnesses. Id. at 109. We are not to "second-guess the trial court's resolution of a factual dispute by relying on evidence that is either disputed, or that the court could easily have rejected as not credible." In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003). The court should "explain in its opinion 'why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.'" In re J.O.A., 283 S.W.3d at 345.
A single predicate finding under Section 161.001(b)(1) of the Family Code supports a judgment of termination when there is also a finding that termination is in the child's best interest. In re A.V., 113 S.W.3d at 362. Thus, if multiple predicate grounds are found by the trial court, we may affirm on any one ground because only one is necessary for termination of parental rights. See In re T.G.R.-M., 404 S.W.3d 7, 13 (Tex. App.-Houston [1st Dist.] 2013, no pet.). But when termination is granted under Subsection (D) or (E), we must review those grounds because they can supply the predicate for future terminations under Subsection (M). See In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (holding that allowing (D) and (E) findings to go unreviewed on appeal when parent has presented issue to appellate court violates parent's due-process and due-course-of-law rights).
B. Termination of parental rights under Subsection (E) (endangering conduct)
The trial court terminated Mother's and Father's parental rights under Section 161.001(b)(1)(E) of the Family Code. Subsection (E) provides that parental rights may be terminated if the parent has "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." TEX. FAM. CODE § 161.001(b)(1)(E). Within the context of Subsection (E), endangerment encompasses "more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment." Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). To "endanger" means to expose a child to loss or injury or to jeopardize a child's emotional or physical health. Id.; see In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). "However, danger to a child need not be established as an independent proposition and may be inferred from parental misconduct even if the conduct is not directed at the child and the child suffers no actual injury." Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.-Houston [1st Dist.] 2010, pet. denied).
It is not necessary to establish that a parent intended to endanger a child to support termination under Subsection (E). See In re M.C., 917 S.W.2d at 269-70. Nor is it necessary to establish that the parent's conduct was directed at the child or caused actual harm; rather, it is sufficient if the parent's conduct endangers the child's well-being. See Jordan, 325 S.W.3d at 724 ("Evidence as to how a parent has treated another child or spouse is relevant regarding whether a course of conduct under [Sub]section (E) has been established."). The endangering conduct does not have to occur in the child's presence. Walker v. Tex. Dep't of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). The conduct may occur before the child's birth and either before or after the child's removal by the Department. Id. Offenses before the child's birth can be considered as part of a voluntary, deliberate, and conscious course of conduct that has the effect of endangering the child. Id.
A parent's past endangering conduct may create an inference that the conduct may recur and further jeopardize the child's present or future physical or emotional well-being. See id.; In re D.M., 58 S.W.3d 801, 812 (Tex. App.-Fort Worth 2001, no pet.). "As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of the child." In re I.V.H., No. 01-19-00281-CV, 2019 WL 4677363, at *6 (Tex. App.-Houston [1st Dist.] Sept. 26, 2019, pet. denied) (mem. op.) (quoting In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied)). "A parent's consistent failure to take advantage of many forms of assistance made available to [him or] her to help provide safe and stable living conditions for [the] children may warrant termination of parental rights." See Smith v. Tex. Dep't of Fam. &Protective Servs., Nos. 01-09-00173-CV, 01-09-00390-CV, 2009 WL 4359267, at *7 (Tex. App.-Houston [1st Dist.] Dec. 3, 2009, no pet.) (mem. op); see also Phillips v. Tex. Dep't of Protective &Regul. Servs., 25 S.W.3d 348, 352-54 (Tex. App.-Austin 2000, no pet.) (parent's lack of progress toward stabilizing home and becoming better parent was evidence of endangering conduct under Subsection (E)).
1. As to Mother
Mother contends the Department did not satisfy its burden to show by clear and convincing evidence that she engaged in a voluntary, deliberate, and conscious course of conduct that had the effect of endangering the children. She asserts three reasons why the trial court's finding under Subsection (E) should be set aside:
• her conduct that the Department claimed was endangering was attributable to a medical condition-seizures-for which she sought treatment and "moved to be closer to a very large support group [in North Carolina] and to secure additional services";
• although she had abused prescription pain medication in the past, she tested "clean on the drug tests" and did not use any substance in a manner that endangered the children; and
• despite being a victim of Father's domestic violence, she never allowed Father to be with the children unsupervised.
The Department presented evidence of Mother's history of substance abuse. This evidence included, but was not limited to, testimony that Mother used opioids and cocaine in her relationship with Charlie's father between 2006 and 2009. In 2011, Mother was discharged from a regional hospital after presenting with a "possible overdose" of prescribed medications. The discharge notes state that Mother was taking "methadone for pain control along with gabapentin," which had recently been filled, and "about 30 some [were] missing." In 2012, Mother's parental rights to her oldest child were terminated because, among other factors, Mother was addicted to prescription pain medication. In addition, although Mother testified that she had been sober since Yara was born in February 2014, the Department presented records from the Harris Center noting that, in 2017, Mother "report[ed] addiction to opiates and benzos" and was "actively withdrawing." Other records from 2017 state that Mother reported to the Harris Center that she was discharged from a housing assistance program after twice testing positive for opioids, once upon arrival and again the next day. Mother also tested positive for benzodiazepine, alprazolam, and marijuana and missed or refused scheduled drug/alcohol screenings during this case.
The Department's trial contentions included that Mother had an ongoing substance abuse problem and that, more than once, she became incoherent when she was responsible for the children's care. This evidence included the police report documenting the child-endangerment call on October 21, 2018. It states that a witness drove by Mother, who was walking with Yara (then age 4) and Natalie (then age 3) but not paying attention to the children's dangerous position near the road. One of the responding officers observed that Mother "was not acting coherent and on some kind of drug." She "would not respond to [them]," and "could not tell [them] where she was coming from or where she was going when asked." In addition, Charlie had been left alone at home, the home was "in disarray," and the children had not eaten that day.
Mother disputed that this incident, or any other, was due to substance abuse. Instead, she attributed the endangering conduct to a seizure disorder, for which she received treatment. Although the precise nature and extent of the seizure disorder was not developed at trial, Mother described its symptoms as including disorientation or incoherence. Among other things, she presented medical records noting a history of seizures and the testimony of a family friend who witnessed one seizure. Mother testified that she addressed this medical condition by taking prescription medication to prevent seizures, attempting to find alternative caretakers for the children when she was ill, and moving to North Carolina where she had the support of Father's family.
Regarding the positive drug test results during the case, Mother testified that she had a prescription for benzodiazepine and alprazolam, and that she used an over-the-counter CBD product but stopped doing so when it caused the positive marijuana result. She also testified that she missed only a few drug screenings because she was injured in a car accident and could not leave her home for a time.Mother points to 19 negative drug screenings as rebutting the Department's contention of endangerment due to continuing substance abuse. In short, there was conflicting evidence on whether some of the endangering conduct alleged by the Department was due to ongoing substance abuse, a medical condition, or both.
Mother's testimony does not fully align with the drug screening results set out in the Department's permanency report. Mother testified the car accident occurred on July 5, 2020. However, the Department's permanency report lists missed drug screenings before that date, in September 2019, February 2020, May 2020, and June 2020.
But that does not preclude the trial court's endangerment finding under Subsection (E). Deferring to the trial court's credibility determinations, the record supports a finding of endangerment based on Mother's continuing contact with Father and pattern of exposing her children to domestic violence.
To be sure, there is ample evidence that Mother was a victim of domestic violence. She experienced domestic violence in her relationship with each of the children's fathers, and on more than one occasion that violence occurred while children were present. She acknowledged Father's physical abuse. One HPD incident report states that Mother reported an assault by Father in September 2018 at her Houston apartment, about one month before the children were placed in the Department's care. Mother told the police that Father "forced his way into her apartment by pushing the door open." After she told him to leave, Father exited the apartment but "grabbed her and threw her to the ground in front of her apartment door and then punched her on her back several times, causing her pain."
Father also assaulted Mother after she moved to North Carolina, during this case. Mother testified that in late March 2022, Father entered her North Carolina apartment through an open window in her bedroom, while she was sleeping, and attacked her. When the assault began, the twins, who resided with Mother, were asleep in the same bedroom. One of the twins remained asleep during the assault; the other woke up. According to Mother, Father struck her repeatedly with closed fists, choked her, pushed her, and pulled her hair. She suffered "bruises," "hair loss," a "sore back," a "sore body," and "somewhat of a mild concussion." Mother did not press charges against Father.
The children were also victims of Father's physical violence or threats of physical violence. In connection with the September 2018 incident, Mother told police that Father threatened to kill her and Charlie. One month later, in October 2018, Father reportedly kicked Yara, who then fell on Natalie. Although Mother claimed not to recall the details of these incidents involving the children at trial, she acknowledged on cross-examination that her statements were accurate.
Mother denied that she and Father were still in a relationship at trial. But the trial court was free to disregard her testimony about the limits of her own or her children's contact with Father based on contradicting evidence. See In re S.R., 452 S.W.3d at 365 ("As the finder of fact and sole judge of the credibility of the witnesses, the trial court was free to disregard any or all of the parents' self-serving testimony."); see also In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (even under heightened standard of review, due to clear and convincing burden of proof, appellate court still must provide due deference to decisions of factfinder, who had full opportunity to observe witness testimony and was sole arbiter of witness credibility). The twins were born to Mother and Father after the incidents of domestic violence described above involving Charlie, Yara, and Natalie.
Mother moved to North Carolina to take advantage of a support system that Father's family could provide. But that support system exposed her and the twins to more contact with Father. Mother impliedly admitted that she still had contact with Father when she testified that she met him in public places to allow supervised visits with the twins. Mother also admitted that she sometimes saw Father at family gatherings in North Carolina. And although she testified that she moved out of her first North Carolina apartment because Father had discovered where she lived and assaulted her there, she admitted that she received Father's help moving into her new apartment. The caseworker expressed concern that Mother was still being physically abused by Father based on "questionable marks" the caseworker observed on Mother's body.
In addition, the evidence was undisputed that Mother chooses to be financially dependent on Father. Mother testified that she had some savings and anticipated receiving settlement proceeds from the car accident, but Father paid her rent and other bills so that she could stay at home with the twins. Despite being well-qualified to obtain a job and acknowledging she faced no obstacles in doing so, Mother voluntarily remains entangled with Father. See, e.g., In re O.R.F., 417 S.W.3d 24, 38 (Tex. App.-Texarkana 2013, pet. denied) (evidence supported termination of mother's parental rights where, among other factors, mother had history of abusive relationship, resulting in children witnessing her abuse, and returned to abusive partner); In re S.P., 168 S.W.3d 197, 204-05 (Tex. App.-Dallas 2005, no pet.) (evidence supported termination of mother's parental rights where, among other factors, mother knowingly allowed abusive and sexually deviant father to have access to children); In re M.N.G., 147 S.W.3d 521, 536-39 (Tex. App.-Fort Worth 2004, pet. denied) (evidence supported termination of mother's parental rights where, among other factors, mother consistently endangered her children by exposing them to abusive partners).
From this evidence, the trial court could reasonably conclude that Mother had in the past and would continue in the future to expose the children to a risk of domestic violence in the home and, thereby, endangered the children's physical and emotional well-being. Cf. In re J.J.S., 272 S.W.3d 74, 79 (Tex. App.-Waco 2008, pet. struck) (fact that mother "conducted herself in a manner, namely her abusive relationships, which exposed her children to a home where physical violence was present" was evidence of Subsection (E) endangerment); In re M.R., 243 S.W.3d 807, 819 (Tex. App.-Fort Worth 2007, no pet.) (fact that mother "exposed her children to domestic violence" was evidence of Subsection (E) endangerment).
Viewing all the evidence in the light most favorable to the trial court's Subsection (E) finding and considering undisputed contrary evidence, we conclude that a reasonable factfinder could have formed a firm belief or conviction that Mother endangered the children's well-being. Considering the entire record, we conclude that the disputed evidence that a reasonable factfinder could not have credited in favor of the child-endangerment finding is not so significant that the factfinder could not have formed a firm belief or conviction that it is true. Thus, we hold the evidence legally and factually sufficient to support the trial court's Subsection (E) finding as to Mother. See In re A.C., 560 S.W.3d at 630-31.
As the evidence supports termination of Mother's parental rights under Subsection (E), we need not separately address the trial court's other ground for termination. See TEX. FAM. CODE § 161.001(b)(1); In re A.V., 113 S.W.3d at 362; see also TEX. R. APP. P. 47.1 (court to issue opinion that is as brief as practicable but addresses every issue raised and necessary to final disposition of appeal).
We overrule Mother's third issue. We do not reach her fourth issue.
2. As to Father
Like Mother, Father argues the evidence was legally and factually insufficient to support the trial court's finding under Subsection (E) that he engaged in conduct that endangered the children's well-being. See TEX. FAM. CODE § 161.001(b)(1)(E). Although Father acknowledges the trial court's Subsection (E) finding may be based on his "alleged physical violence aimed at [Mother] in the North Carolina apartment," he disagrees such conduct exposed the children to loss or injury because it was directed at Mother only and not the children. We disagree.
The Department did not have to establish that Father's violent conduct was directed at the children. Father's physical abuse of Mother is enough. See In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.-Houston [14th Dist.] 2003, no pet.) ("Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment."). Violent conduct by one parent toward the other parent may produce an environment that endangers the physical or emotional well-being of a child. See In re H.D.D.B., No. 01-20-00723-CV, 2022 WL 2251655, at *7 (Tex. App.-Houston [1st Dist.] June 23, 2022, no pet.) (mem. op.); J.I.T.P., 99 S.W.3d at 845. And here, there was ample evidence that Father physically abused Mother, including when his children were present. See In re H.D.D.B., 2022 WL 2251655, at *7 (evidence father assaulted mother while child was present supported trial court's endangerment finding).
Beyond the physical injuries Father inflicted on Mother, he caused instability in Mother's and the twins' housing when he assaulted her in North Carolina. Mother testified that she moved into an extended-stay hotel immediately after the assault because she did not feel safe returning to the apartment. She stayed in the hotel for a few months, until she secured new housing. In addition, the North Carolina caseworker assigned to Mother after the assault expressed concern that Father might have continued to physically abuse Mother based on her observation of "questionable marks" on Mother's body and Mother's admitted contacts with Father.
Finally, even though evidence that Father engaged in or threatened physical violence against the children was not required, the Department presented some. When asked during cross-examination if Mother had lied when she reported that Father threatened to kill Charlie and kicked Yara, causing her to fall on Natalie, Father initially denied these incidents occurred but later answered they were "possibly true" or "may be true" if Mother reported them.
Viewing all the evidence in the light most favorable to the trial court's Subsection (E) finding and considering any undisputed contrary evidence, we conclude that a reasonable factfinder could have formed a firm belief or conviction that Father endangered the children's well-being. Considering the entire record, we conclude that the disputed evidence that a reasonable factfinder could not have credited in favor of the child-endangerment finding is not so significant that the factfinder could not have formed a firm belief or conviction that it is true. Thus, we hold the evidence legally and factually sufficient to support the trial court's Subsection (E) finding as to Father. See In re A.C., 560 S.W.3d at 630-31.
As the evidence supports termination of Father's parental rights under Subsection (E), we need not separately address the trial court's other ground for termination. See TEX. FAM. CODE § 161.01(b)(1); In re A.V., 113 S.W.3d at 362; see also TEX. R. APP. P. 47.1 (court to issue opinion that is brief as practicable but addresses every issue raised and necessary to final disposition of appeal).
We overrule Father's second issue. We do not reach his third issue.
C. Best Interest
Mother and Father also challenge the trial court's findings that termination of their parental rights is in the children's best interests. TEX. FAM. CODE § 161.001(b)(2) (in addition to predicate violation, party seeking to terminate another's parental rights must establish by clear and convincing evidence that termination is in child's best interest). There is a strong presumption that the best interest of a child is served by keeping the child with a parent. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.-Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement of the child in a safe environment is also presumed to be in the child's best interest. TEX. FAM. CODE § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the sufficiency of the evidence to support the best-interest finding:
• the desires of the child;
• the present and future physical and emotional needs of the child;
• the present and future emotional and physical danger to the child;
• the parental abilities of the persons seeking custody;
• the programs available to assist those persons seeking custody in promoting the best interest of the child;
• the plans for the child by the individuals or agency seeking custody;
• the stability of the home or proposed placement;
• acts or omissions of the parent which may indicate the existing parent-child relationship is not appropriate; and
• any excuse for the parent's acts or omissions.Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). This list of factors is not exhaustive, however, and evidence is not required on all the factors to support a finding that terminating a parent's rights is in the child's best interest. Id. at 372; In re D.R.A., 374 S.W.3d at 533.
In addition, the Family Code sets out factors for evaluating the parent's willingness and ability to provide the child with a safe environment, including:
• the child's age and physical and mental vulnerabilities;
• whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home;
• the willingness and ability of the child's family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency's close supervision;
• the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable time;
• whether the child's family demonstrates adequate parenting skills, including providing the child with minimally adequate health and nutritional care, a safe physical home environment, and an understanding of the child's needs and capabilities; and
• whether an adequate social support system consisting of an extended family and friends is available to the child.
TEX. FAM. CODE § 263.307(b); In re R.R., 209 S.W.3d at 116.
Courts may consider circumstantial evidence, subjective factors, and the totality of the evidence as well as the direct evidence when conducting the best interest analysis. See In re E.D., 419 S.W.3d 615, 620 (Tex. App.-San Antonio 2013, pet. denied). Evidence supporting termination under one of the predicate grounds listed in subsection 161.001(b)(1) can also be considered in support of a finding that termination is in the best interest of the child. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). A parent's past conduct is probative of her future conduct when evaluating the child's best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.-San Antonio 2013, no pet.); Jordan, 325 S.W.3d at 724. A factfinder may also infer that past conduct endangering the child's well-being may recur in the future if the child is returned to the parent when assessing the best interest of the child. In re D.M., 452 S.W.3d 462, 471 (Tex. App.-San Antonio 2014, no pet.) (citing In re B.K.D., 131 S.W.3d 10, 17 (Tex. App.-Fort Worth 2004, pet. denied)); Jordan, 325 S.W.3d at 724.
1. Multiple factors support the termination of parental rights
We consider Mother's and Father's challenges to the best-interest findings together because Father's primary argument is that his parental rights should not have been terminated because Mother was a suitable parent, and he desires for the children to live with Mother with his financial support.
Multiple factors support the trial court's finding that termination of Mother's and Father's parental rights was in the children's best interests.
The evidence demonstrated that both Mother and Father endangered the children. See In re C.H., 89 S.W.3d at 28 (same evidence may be probative of both Section 161.001(b)(1) grounds and best interest). The evidence Mother had in the past and would continue in the future to expose the children to a risk of domestic violence in the home by maintaining contact with the person who perpetrated or threatened such violence, Father, risks injury to the children's physical and emotional well-being. See In re W.J.B., No. 01-15-00802-CV, 2016 WL 1267847, at *9 (Tex. App.-Houston [1st Dist.] Mar. 31, 2016, no pet.) (mem. op.) ("[E]vidence of past misconduct or neglect can be used to measure a parent's future conduct.").
This risk is underscored by evidence that Mother continued to allow contact between Father and the children still in her care, i.e., the twins. Despite experiencing Father's physical abuse in the twins' presence when Father assaulted her in North Carolina, Mother testified she was not worried for the twins' safety because Father had not directed violence toward them, and she had taken appropriate protective actions during and after the assault. However, the trial court could disbelieve Mother's testimony and reasonably infer that she lacked protective ability. Although Mother received and completed some services, including individual counseling, there was no assurance from the evidence that her endangering conduct would change. And Father makes no argument on appeal that he made sufficient progress through services or otherwise to be a safe caretaker for the children. The evidence was that he intended to provide financial support, not to caretake. The reasonable inferences from this evidence are relevant not only to the children's present and future emotional and physical needs and dangers but also to Mother's and Father's parental abilities and the stability of Mother's home. See In re J.M., No. 01-14-00826-CV, 2015 WL 1020316, at *7 (Tex. App.-Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.).
The children were ages 13, 8, and 7 at the time of trial. The trial court could consider the testimony from the child advocate, E. Gonzales, that the children had bonded with their foster mother and desired to be adopted. See Rogers v. Dep't of Fam. &Protective Servs., 175 S.W.3d 370, 378 (Tex. App.-Houston [1st Dist.] 2005, pet. dism'd w.o.j.) (successful foster placement with possibility of adoption supported best-interest finding); In re Z.C., 280 S.W.3d 470, 476 (Tex. App.-Fort Worth 2009, pet. denied) (best-interest finding supported by evidence child was thriving in foster care). Gonzales also testified that the children expressed fear about reunifying with Mother. See TEX. FAM. CODE § 263.307(b)(5). The children's foster mother testified that she had been caring for the children since October 2019 and desired to adopt them together. Although Mother is critical of a lack of information about the children's prior foster care placements, the evidence demonstrated that the current placement is supportive. There was evidence that the foster mother is invested in the children's growth, planning for their future, and seeking counseling and other services they require, including services for Natalie, who is autistic. These efforts were showing success, as trauma and anger behaviors Charlie exhibited were improving and he was thriving in school.
It was undisputed that Charlie refused to participate in visits with Mother and did not wish to be returned to her care. Mother described successful visits with Yara and Natalie but missed more than one scheduled in-person visit during the trial. See In re D.W., 445 S.W.3d 913, 926 (Tex. App.-Dallas 2014, pet. denied) (child's love for parent and enjoyment of visits is "only marginally relevant" to best-interest determination).
Because of the COVID-19 pandemic, some visits with Mother and the children were via Zoom, which Mother testified made it hard to keep the children's interest or bond.
Mother emphasizes that, at the time of trial, she had an apartment with sufficient room for the children and the twins, Father had pledged to continue his financial support upon reunification, she had investigated plans for educating the children and providing any therapeutic services they required, the twins remained in her care and had not been removed in North Carolina, and she had completed counseling and other services. She also asserts that the endangering conduct alleged by the Department is excused because she is a victim of domestic violence and suffers from a medical condition. While this is some evidence that Mother has plans for the children, some parenting ability, and has availed herself of assistance and programs, it is not so significant that the trial court could not have reasonably formed a firm belief or conviction that termination was in the children's best interest.
Viewing all the evidence in the light most favorable to the trial court's best-interest finding and considering any undisputed contrary evidence, we conclude that a reasonable factfinder could have formed a firm belief or conviction that termination of Mother's parental rights was in the children's best interests. Considering the entire record, we conclude that the disputed evidence that a reasonable factfinder could not have credited in favor of the best-interest finding is not so significant that the factfinder could not have formed a firm belief or conviction that it is true. Thus, we hold the evidence legally and factually sufficient to support the trial court's best-interest finding as to Mother. See In re A.C., 560 S.W.3d at 630-31.
We overrule Mother's fifth issue. Because Father's best-interest argument rests on his position that Mother's parental rights should have been maintained, a position contrary to our holdings, we also overrule Father's fourth issue.
Conservatorship
Mother and Father also challenge the trial court's finding that appointing the Department as the children's sole managing conservator is in the children's best interest. Mother argues that she should have been appointed as a conservator of all three children because there was no or factually insufficient evidence that doing so would significantly impair the children's physical health or emotional development. Father does not seek conservatorship of Yara and Natalie himself, but he asserts that Mother "would be a suitable joint managing conservator with the Department[.]"
When the parents' rights are terminated, the trial court must appoint "a suitable, competent adult, the Department [], or a licensed child-placing agency as managing conservator of the child[ren]." TEX. FAM. CODE § 161.207(a); In re M.M.M., No. 01-16-00998-CV, 2017 WL 2645435, at *17 (Tex. App.-Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.). Conservatorship determinations are reviewed for an abuse of discretion and will be reversed only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.C., 394 S.W.3d 633, 644 (Tex. App.-Houston [1st Dist.] 2012, no pet.).
An order terminating the parent-child relationship divests the parent of all legal rights and duties with respect to the child, except the child's right to inherit. TEX. FAM. CODE § 161.206(b). Once we overrule a parent's challenge to a termination order, the trial court's appointment of the Department as sole managing conservator may be considered a "consequence of the termination pursuant to Family Code section 161.207." In re A.S., 261 S.W.3d 76, 92 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).
Because we have overruled Mother's and Father's challenges to the portion of the trial court's order terminating their parental rights, the order has divested Mother and Father of their legal rights and duties related to the children. TEX. FAM. CODE § 161.206(b); In re A.S., 261 S.W.3d at 92. As a result, Mother and Father lack standing to challenge the portion of the order appointing the Department as the children's conservator because any alleged error could not injuriously affect their rights. See E.A. v. Tex. Dep't of Fam. &Protective Servs., No. 03-15-00811-CV, 2016 WL 1639847, at *4 (Tex. App.-Austin Apr. 21, 2016, pet. denied) (mem. op.) (affirming termination of mother's parental rights and holding that mother, who had been divested of her legal rights to child, could not challenge conservatorship determination). In addition, Father lacks standing to challenge the order on Mother's behalf. See In re D.C., 128 S.W.3d 707, 713 (Tex. App.-Fort Worth 2004, no pet.) (holding mother lacked standing to complain about termination of father's parental rights and explaining that party "may not complain of errors that do not injuriously affect her or that merely affect the rights of others"); see also In re C.C., No. 10-16-00129-CV, 2016 WL 6808944, at *14 (Tex. App.-Waco Nov. 16, 2016, no pet.) (mem. op.) (affirming termination of mother's parental rights and holding mother lacked standing to challenge conservatorship determination based on availability of other "relatives [who] were willing to be the children's sole managing conservator").
We overrule Mother's sixth issue and Father's fifth issue.
Conclusion
We affirm the trial court's order terminating Mother's and Father's parental rights.