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holding unchallenged finding that parent failed to engage in service plan supported best-interest finding
Summary of this case from In re R.E.Opinion
05-23-00031-CV
07-27-2023
IN THE INTEREST OF E.S.S., A CHILD
On Appeal from the 354th Judicial District Court Hunt County, Texas Trial Court Cause No. 90148
Before Justices Partida-Kipness, Nowell, and Kennedy
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS, JUSTICE
The trial court terminated Mother's parental rights to her child, E.S.S. Following a six-day trial, the jury found by clear and convincing evidence that statutory grounds existed for the termination of Mother's parental rights to E.S.S. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O). The jury also found termination of the parent-child relationship to be in E.S.S.'s best interest. See id. § 161.001(b)(2). The trial court signed a termination order based on the jury's findings and named Father the child's Sole Permanent Managing Conservator. After reviewing Mother's brief and the record, we affirm the trial court's order terminating Mother's parental rights.
We refer to E.S.S. by her initials and use pseudonyms or initials to refer to each of E.S.S.'s family members to protect E.S.S.'s identity. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8(b)(2).
BACKGROUND
On March 15, 2021, the Department of Family and Protective Services (the Department) received a referral concerning Mother and E.S.S. The referral stated:
Mother screams at child, calls her a-hole, m-fer, and threatens to kick her f-ing ass. House has had no electricity for weeks. Child doesn't want to go home and hides from mom. Concerns mother is using illegal drugs.
E.S.S. was four years old at the time of the referral and six years old at the time of trial.
I. The Initial Investigation
Jennifer Holt was the Department investigator assigned to the case. Holt also kept Michelle Looper, an Investigative Supervisor for the Department, apprised of the case status. Looper had decision-making authority. Looper testified the initial concerns in this case were "erratic behavior from the mother, . . . allegations of drug use, allegations of mom maybe being unstable, mentally, as well as physical environment."
Holt visited Mother at a trailer home on March 15, 2021. The Department believed this was where Mother was living with E.S.S. Mother testified, however, that her brother was living in the trailer, and she was there on March 15 helping him move out. After Holt met with Mother and E.S.S., Holt reported she had no immediate mental health concerns with Mother's behavior that day, and the child was "happy and fine." Mother was not acting erratically, and Holt had no concerns Mother was on drugs or mentally ill. The house was sufficient, and Holt's only concern on March 15 was that the utilities were turned off. The Department was able to get the electricity reinstated that day by getting payment from a community partner.
Because there were reported concerns about Mother's behavior and suspected drug use, the Department requested a drug test from Mother and asked her for the names of "collaterals" with whom the Department could talk to gather additional information concerning her stability and parenting skills. Mother took the urine drug test (UA test), which was negative. But a concern arose when the Department was speaking with the "collaterals" provided by Mother. One of those collaterals told the Department that Mother used E.S.S.'s urine to pass the drug test. So, the Department asked Mother to take a second urine test while being observed and submit to a hair follicle test.
Mother did not submit to the hair follicle test or take the second urine test. Mother initially refused to take the hair follicle test because she was going back and forth between Texas and Arkansas. But when she returned to Texas, Mother refused to take the hair follicle test. According to Looper, Mother's reasons for not taking the second UA test were "inconsistent and incoherent." First, Mother said she couldn't take the test because there were dyes in the test that impacted her Crohn's disease. Then she said she could not take the test because she was hiding from Father. Because the statements Mother made during the process of asking her to take the drug tests were inconsistent and incoherent, the Department had "concerns at that point that something was going on, different, either mental health or substance abuse." That is when the Department sought a court order to obtain a second drug test.
On June 28, 2021, the Department filed a Petition for Orders in Aid of Investigation of a Report of Child Abuse or Neglect. The trial court signed an Order in Aid of Investigation and found good cause for the Department to have investigatory access to E.S.S., enter her home for an interview and/or examination, and observe the premises and the child's immediate surroundings. The court also ordered Mother to appear in court on July 6, 2021 for a hearing to determine whether the Department's request for orders should be granted.
II. Removal of E.S.S.
Mother was served with the Order in Aid of Investigation and appeared pro se at the July 6, 2021 hearing. The trial court allowed Mother to cross examine Holt. During the cross-examination, the trial judge commented on Mother's demeanor and erratic actions during the hearing. The judge told Mother she believed Mother was under the influence of alcohol or drugs and ordered the court's adult probation officer to conduct an observed UA drug test on Mother at the courthouse. That test showed positive for amphetamine, methamphetamine, and marijuana. Mother denied using methamphetamine. The decision to remove E.S.S. from Mother's custody was made at that time. The Department took E.S.S. to its office and asked Mother to come to the office to facilitate removal and help find a familial placement for E.S.S. L.S., Mother's mom, accompanied Mother to the Department. While they were at the Department, an altercation involving Mother, L.S., and Department staff occurred, and law enforcement was called.
Karen Logan, a Department investigator, witnessed the altercation and helped make sure E.S.S. was safe during the altercation. When Mother and L.S. arrived at the Department, E.S.S. was in a secure part of the office, and Mother and L.S. were not permitted to see her. According to Logan, Mother and L.S. wanted to remove E.S.S. and leave with her and were not helping the Department find a familial placement for E.S.S. Logan testified there was "lots of yelling," and Mother and L.S. tried "to make forceful entry into the locked corridor" to find E.S.S. Looper explained L.S. had her foot in the door and Mother pushed a chair through the door to try to get into the locked corridor. The whole disturbance lasted more than fifteen minutes. Looper called the police and stayed with E.S.S. in an office until she could get E.S.S. safely "out the back door so I could leave and take her to placement." Looper believes E.S.S. could hear the yelling. Gina Gilbert, another Department investigator, was called to the Department office the night of the removal because of the disturbance. She saw Mother in the parking lot talking to the police. Gilbert described Mother's behavior as "a little erratic" but not aggressive.
E.S.S. was initially placed in foster care. In December 2021, after completion of a home study, the trial court ordered E.S.S. be placed with D.S., the paternal grandmother, at her home in Arkansas. The Department declined to place E.S.S. with L.S., the maternal grandmother, because L.S. tested positive for opiates in a 2016 Department case, and Mother "had made statements that she was abused and neglected as a child by [L.S.]."
At the time of removal, Mother and Father shared custody of E.S.S., but Father was in jail on felony assault charges following an altercation with Mother in April 2021. Father denies assaulting Mother. At trial, he testified he accepted a plea deal on the advice of his attorney. Per the plea deal, the district attorney reduced the offense to misdemeanor assault with time served. There was no finding of family violence against Father.
III. The Family Service Plan
Natalie Zapata, a Conservatorship Specialist at the Department, was assigned to the case following removal. The Department's concerns with Mother were her mental health, substance abuse, and housing and financial stability. A Family Service Plan was put into place for Mother and Father. Zapata explained Family Service Plans have two phases. Phase One is to get treatment and assistance with substance abuse and mental health, and Phase Two involves counseling.
The court ordered Mother and Father to each complete a drug and alcohol assessment during Phase One and ordered Mother to complete a psychiatric evaluation. Mother was also ordered to follow any recommendations from the assessment and evaluation, including taking any prescribed medications. For the Phase Two services, Mother and Father were each required to undergo a psychological evaluation and engage in individual counseling and parenting classes. Mother was also ordered to complete an anger management class. The Family Services Plan also called for ongoing services to continue throughout the case. For Mother, those included participating in Narcotics Anonymous (NA) or Alcoholics Anonymous (AA), abstaining from drug and alcohol use, refraining from altering her hair or nails in any way, and submitting to random drug testing. Mother was also ordered to maintain safe, stable, and appropriate housing with working utilities and a stable income.
Zapata explained to Mother and Father their parental rights could be terminated or limited if they did not comply with the Family Service Plan. Mother, however, initially refused to sign the Family Service Plan. According to Zapata, Mother would not participate in or discuss the Family Service Plan because Mother believed the plan and services were "unnecessary." Zapata described Mother's demeanor when she spoke with her about the Family Service Plan as "[e]motional, erratic, up and down, sad and angry, then apologetic, and then back around."
The only court-ordered service completed by Mother was the substance abuse evaluation. Barbara Bowers, the evaluator, recommended Mother complete marijuana prevention courses and attend NA and AA. According to Zapata, Mother did not follow those recommendations. Although Mother took a marijuana education course on-line, the Department did not accept the course because it was different than the one the Department required. The course requested by the Department was an eighteen-hour course completed in approximately nine sessions. Mother took a two-to-three-hour course on-line. Zapata told Mother and her attorney "on several occasions that it was not going to be accepted by the Department as being in compliance with the court order." Mother did not complete the required course. Similarly, Mother did not complete the psychiatric evaluation or the psychological evaluation, did not participate in anger management or individual counseling, did not comply with the orders to leave her hair and nails unaltered and take random drug tests, and did not provide Zapata with sign in sheets from NA/AA meetings. Further, Mother did not provide the Department with a copy of an apartment lease or proof of income or employment after December 2021.
In contrast to Mother's failure to complete the court-ordered services, the evidence showed Father completed all of his services.
IV. Mother's Visitation Rights Suspended
After the Department removed E.S.S., Mother was permitted to have visits with her; however, those visits were suspended in September 2021. The first suspension occurred after Zapata witnessed Mother making inappropriate statements to E.S.S. during a visit in September 2021:
She was telling the child, [E.S.S.], that her grandmother, [D.S.], was going to kidnap her and that she was never going to see her mother
again. [E.S.S.] became visibly upset. And I went in there and I redirected her.
I expressed to her that it was inappropriate and that if she wanted to, that we could discuss whatever she needed to after her visit. We did give her options to play a game, read a book. She disregarded and continued the conversation. I then told her that if she did not stop, that we would have to end the visit.
[Mother] began screaming in front of the child. I asked her again to stop. And when she told me that it was her child, she did not have to do anything, she then slammed the visitation room door in my face so that I could not see her or the child.
I then requested the assistance of my supervisor at that time, Larry Barksdale. He came down, attempted to reason with [Mother], in which she did not calm down. And, ultimately, we did have to call law enforcement to remove her from the premises.
The results of Mother's random drug tests in October 2021 and November 2021 resulted in her visitation with E.S.S. remaining suspended.
At a December 6, 2021 permanency hearing, the court ordered visitation would not be reinstated until Mother passed a hair follicle test. Mother was also ordered to pay for security to be present at all visits with the child for the safety of E.S.S. and Department staff. Mother's visitation remained suspended at the time of trial.
V. Termination Proceedings
Mother's Family Plan Evaluation was completed eight months after the child's removal. The Department ultimately filed an original petition for the protection and conservatorship of E.S.S. and termination of Mother's parental rights. The case proceeded to trial on December 12, 2022.
Every witness except for Mother and her mother, L.S., testified allowing Mother access to E.S.S. would endanger the child's emotional well-being. Father, D.S., and the Court Appointed Special Advocate (CASA), Jennifer Reed, testified they would like Mother to play a role in E.S.S.'s life but only if the interactions could occur "safely." For Reed, many factors led to her concerns regarding Mother's future access to E.S.S. and it was her opinion termination was in the child's best interest. Those included Mother's drug use, refusal to take court-ordered drug tests, failure to engage in and complete court-ordered services for individual counseling and mental health treatment, and Mother's consistent inability to accept the Department's reasons for taking E.S.S. away. In addition, Reed testified even allowing Mother some access to E.S.S. would endanger E.S.S. because Mother had consistently stated she would do anything to get E.S.S. back. Further, allowing Mother access to E.S.S.'s school or medical records could result in inconsistent information provided to doctors and school officials.
It was Zapata's opinion that E.S.S. "needs a stable home where she can live free from abuse or neglect." Zapata testified she believes giving Father full managing conservatorship would allow E.S.S. to be safe. She also believes Father would like to allow Mother to have interactions with E.S.S. in the future if it is safe to do so. Zapata testified she does not believe Mother can provide E.S.S. with an environment that meets her physical and emotional needs and believes E.S.S. would be subject to emotional danger or damage under the care of Mother:
Due to [Mother's] lack of compliance, lack of accepting CPS responsibility, she's not been able to prove any type of sobriety. She's not been able to maintain her mental health. And she's not been able to show to the Department that she's able to maintain stable housing or income that is consistent with the care that [E.S.S.] needs.
She formed this opinion based on her "observations of the interaction between [Mother and E.S.S.] and how she speaks to [E.S.S.] and some of the boundaries that she crosses when speaking to [E.S.S.] that make her become emotional." Zapata was also concerned Mother's only support system was L.S. because L.S. would not provide E.S.S. with an adequate support system to keep her safe if problems arose in Mother's home.
Father and D.S. shared similar concerns regarding Mother's erratic behavior and untreated mental illness. They also expressed fear Mother would kidnap E.S.S. Their concerns with a potential kidnapping came from Mother's statements to them and to Department staff that she would take E.S.S. from them. At trial, Mother confirmed she told the Department she was going to take E.S.S. even if the Department thought it was kidnapping and stated she still felt that way. According to Mother, "They don't have the right to tell me that I'm not a victim of domestic violence. And they don't have the right to take children and put them in foster homes where they're abused, and then try to hide it."
After a six-day trial, the jury found by clear and convincing evidence that Mother (1) knowingly placed or knowingly allowed E.S.S. to remain in conditions or surroundings which endangered her physical or mental well-being; (2) engaged in conduct or knowingly placed E.S.S. with persons who engaged in conduct which endangered her physical or emotional well-being, and (3) failed to comply with the provisions of a court order that specifically established the actions necessary for Mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O). The jury also found the termination of Mother's parental rights was in E.S.S.'s best interest. Finally, the jury found Father had not engaged in conduct prohibited by section 161.001(b)(1) and should be named the permanent managing conservator. The trial court signed a termination order based on the jury's findings, Mother filed a motion for new trial, and this appeal followed. On appeal, Mother argues the evidence was legally and factually insufficient to support the jury's findings of best interest and violations of subsections (D) and (E) of section 161.001(b). She also contends the evidence was legally and factually insufficient to support the determination Mother should not be named as a conservator.
STANDARD OF REVIEW
Because the fundamental liberty interest of a parent in the care, custody, and control of her child is one of constitutional dimensions, involuntary parental termination must be strictly scrutinized. In re C.V.L., 591 S.W.3d 734, 748 (Tex. App.-Dallas 2019, pet. denied) (first citing Troxel v. Granville, 530 U.S. 57, 65- 66 (2000); then citing In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014); and then citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)). In parental termination cases, due process requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam. Code § 161.001(b). "Clear and convincing evidence" is that "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." In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam) (quoting Tex. Fam. Code § 101.007).
On appeal, we apply a standard of review that reflects the elevated burden at trial. In re C.V.L., 591 S.W.3d at 748. "As a matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance." Id. (quoting In re A.C., 560 S.W.3d 624, 630 (Tex. 2018)). Under both legal and factual sufficiency standards, we (i) consider all the evidence, (ii) defer to the factfinder's credibility determinations, and (iii) determine whether the factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. Id. "The distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered." Id. (quoting In re A.C., 560 S.W.3d at 630-31).
When conducting a legal-sufficiency review of an order terminating parental rights, the reviewing court cannot ignore undisputed evidence contrary to the finding but must otherwise assume the factfinder resolved disputed facts in favor of the finding. In re C.V.L., 591 S.W.3d at 748. We "consider all the evidence, not just that which favors the verdict," and we assume the fact-finder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so. Id. We disregard all evidence that a reasonable fact-finder could have disbelieved or found to have been incredible. Id. at 748-49.
When reviewing the factual sufficiency of the evidence supporting a termination finding, an appellate court asks whether, in light of the entire record, the evidence is such that a fact-finder could reasonably form a firm conviction about the truth of the State's allegations against the parent. In re C.V.L., 591 S.W.3d at 749. Further, the appellate court must consider whether the disputed evidence is such that a reasonable fact-finder could not have reconciled that disputed evidence in favor of its finding. Id. If the disputed evidence is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id. "And in making this determination, the reviewing court must undertake 'an exacting review of the entire record with a healthy regard for the constitutional interests at stake.'" In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)).
In this case, the jury found Mother engaged in conduct prohibited by paragraphs (D), (E), and (O) of section 161.001(b)(1), and that termination was in the best interest of the children. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O); Tex. Fam. Code § 161.001(b)(2). Mother does not challenge the finding that she engaged in conduct violating section 161.001(b)(1)(O). We may not, however, simply affirm on that basis. Because an order terminating a parent's rights under subsection (D) or (E) can be used as a basis to terminate the parent's rights to another child under subsection 161.001(b)(1)(M), terminating rights under (D) or (E) has "significant" collateral consequences. In re N.G., 577 S.W.3d at 234; Tex. Fam. Code § 161.001(b)(1)(M). Therefore, "due process requires an appellate court to review and detail its analysis as to termination of parental rights under section 161.001(b)(1)(D) or (E) of the Family Code when challenged on appeal." In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019) (per curiam).
ANALYSIS
"Texas Family Code section 161.001(b) allows for involuntary termination of parental rights if clear and convincing evidence supports that a parent engaged in one or more of the twenty-one enumerated grounds for termination and that termination is in the best interest of the child." In re N.G., 577 S.W.3d at 232. Here, the trial court terminated Mother's rights under three grounds-sections 161.001(b)(1)(D), (E), and (O)-in addition to finding that termination was in E.S.S.'s best interest. In five issues, Mother challenges the legal and factual sufficiency of the evidence supporting two of the grounds for termination, the finding that termination was in E.S.S.'s best interest, and the failure to name Mother a conservator. In her final issue, Mother asserts a new trial is necessary because the Department and the trial court failed to comply with the requirements of the Indian Child Welfare Act. We address each issue in turn.
I. Termination under Section 161.001(b)(2)(O)
The jury found three predicate grounds for terminating Mother's parental rights. Tex. Fam. Code § 161.001(b)(1)(D), (E), (O). On appeal, Mother does not challenge the jury's finding that she failed to comply with the provisions of a court order that specifically established the actions necessary for Mother to obtain the return of the child. See id. § 161.001(b)(1)(O). "Unchallenged predicate findings are binding" on the appellate court. In re E.A.F., 424 S.W.3d 742, 750 (Tex. App.- Houston [14th Dist.] 2014, no pet.). "[C]lear and convincing proof of any one ground will support a judgment terminating parental rights, if similar proof also exists that termination is in the child's best interest." In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014) (citing In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013)). We may affirm the termination order based on this violation alone if we conclude the evidence was legally and factually sufficient to support the jury's finding that termination is in the child's best interest. Before addressing the best interest finding, however, we must first review Mother's challenge to the jury's findings that she violated subsections (D) and (E). See In re N.G., 577 S.W.3d at 236-37.
II. Termination under Sections 161.001(b)(1)(D) and (E)
In her second and third issues, Mother argues the evidence is legally and factually insufficient to support the jury's finding she endangered E.S.S. and violated subsections 161.001(b)(1)(D) and (E) of the family code.
A. Applicable law
Under section 161.001(b)(1)(D), parental rights may be terminated if clear and convincing evidence supports a finding that the parent "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child." Tex. Fam. Code § 161.001(b)(1)(D). Section 161.001(b)(1)(E) allows for termination of parental rights if clear and convincing evidence supports a finding that the parent "engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child." Id. § 161.001(b)(1)(E).
Subsections (D) and (E) both require proof of endangerment. "Endanger" means to expose to loss or injury or to jeopardize a child's emotional or physical health, but it is not necessary that the conduct be directed at the child or that the child actually suffer an injury. In re J.D.B., 435 S.W.3d at 463. The primary distinction between the two subsections is the source of the physical or emotional endangerment to the child. Id. Subsection (D) addresses the child's surroundings and environment while subsection (E) addresses parental misconduct. Id. Parental conduct, however, is also relevant to the child's environment under subsection (D). Id. "That is, '[c]onduct of a parent or another person in the home can create an environment that endangers the physical and emotional well-being of a child as required for termination under subsection (D).'" Id. at 464 (quoting Castaneda v. Tex. Dep't of Protective & Regul. Servs., 148 S.W.3d 509, 522 (Tex. App.-El Paso 2004, pet. denied)). "Inappropriate, abusive, or unlawful conduct by persons who live in the child's home is part of the 'conditions or surroundings' of the child's home under subsection (D)." Id. (citing In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.-Fort Worth 2009, no pet.) ("A child is endangered when the environment creates a potential for danger that the parent is aware of but disregards.")); see also In re W.S., 899 S.W.2d 772, 776 (Tex. App.-Fort Worth 1995, no writ) ("environment" refers not only to the acceptability of the living conditions but also to a parent's conduct in the home).
Ground (E) "refers only to the parent's conduct, as evidenced not only by the parent's acts, but also by the parent's omissions or failures to act." In re S.K., 198 S.W.3d 899, 902 (Tex. App.-Dallas 2006, pet. denied). "Termination under section 161.001(b)(1)(E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious 'course of conduct' by the parent is required." In re K.S., No. 05-15-01294-CV, 2016 WL 1613126, at *13-14 (Tex. App.-Dallas Apr. 21, 2016, pet. denied) (mem. op.) (internal quotations omitted). In determining whether a parent engaged in a course of "endangering" conduct, a trial court may consider conduct that occurred before and after the child's birth, in the child's presence and outside the child's presence, and before and after removal by the Department. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
While endangerment often involves physical endangerment, the statute does not require that the conduct be directed at the child or that the child actually suffers injury. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Specific danger to the child's well-being may be inferred from the parent's misconduct alone. Id. A parent's conduct that subjects a child to a life of uncertainty and instability endangers the child's physical and emotional well-being. In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied). The specific danger to the child's well-being may be inferred from parental misconduct standing alone. Cervantes-Peterson v. Tex. Dep't of Family & Protective Servs., 221 S.W.3d 244, 253 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (en banc). Because the evidence concerning these two statutory grounds for termination is interrelated, we will analyze subsections (D) and (E) together. In re C.J.B., No. 05-19-00165-CV, 2019 WL 3940987, at *6 (Tex. App.-Dallas Aug. 21, 2019, no pet.) (mem. op.) (citing In re J.T.G., 121 S.W.3d 117, 126 (Tex. App.-Fort Worth 2003, no pet.)).
B. Application of law to facts
Mother first challenges the sufficiency of the evidence to support a finding of endangerment under subsection (D). Mother argues the Department offered no evidence her past conduct created environmental conditions which endangered the child. Although Mother's home lacked electricity in March 2021, Mother corrected the problem quickly with the Department's help. She also contends her past mental health difficulties do not support a finding of endangerment under subsection (D). We disagree.
The evidence at trial showed the gas and electricity were turned off at her apartment the week before trial for non-payment and Mother was unemployed at the time of trial. The evidence also showed Mother had not been employed since moving to Arkansas in December 2021. Although she claimed to "be on the payroll" at Love's, she stated she was never given work shifts and could not work when she was pregnant with A.L. A reasonable jury could conclude Mother was unable to provide a safe and stable living environment.
Her drug use also supported the endangerment finding. "[A] parent's use of narcotics and its effect on his or her ability to parent may qualify as an endangering course of conduct." In re J.O.A., 283 S.W.3d at 345. A long history of irresponsible choices is probative evidence that a parent has engaged in conduct that has endangered a child. Id. at 346. "[A] parent's decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, supports a finding that the parent engaged in conduct that endangered the child's physical or emotional well-being." In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.-Fort Worth 2011, pet. denied).
Here, the Department removed E.S.S. due to Mother's living conditions, drug use, and concerns about her mental health. Because of Mother's erratic and inappropriate conduct as well as positive drug test results, Mother lost visitation rights fifteen months before trial. Although Mother knew she could not regain visitation with E.S.S. without a negative hair follicle test, she refused to comply with drug test orders. Because of Mother's previous positive drug results, Zapata believes she did not comply with the order to remain sober and drug free. The evidence supported Zapata's belief. When Mother gave birth to her son, A.L., months before trial, Arkansas Child Protective Services immediately removed him due to Mother's mental health and allegations she tested positive for methamphetamine at the child's birth. Yet, Mother continued to use marijuana and testified she would "safely" continue to use it if E.S.S. was returned to her. The week before trial, Mother submitted nail clippings to Arkansas CPS for testing in her son's case. She tested positive for amphetamine, methamphetamine, cannabinoids, and carboxy-THC. Her refusal to comply with drug testing ordered by the Texas court and the positive test results in Arkansas the week before trial supported a finding Mother created environmental conditions which endangered E.S.S. under subsection (D).
Next, Mother contends the Department relied on evidence of her past mental health struggles and alleged drug use to support the endangerment finding under subsection (E). She maintains, however, the Department did not prove her mental health and drug issues demonstrated a voluntary, deliberate, and conscious course of conduct by Mother. We again disagree.
Ground (E) "refers only to the parent's conduct, as evidenced not only by the parent's acts, but also by the parent's omissions or failures to act." In re S.K., 198 S.W.3d at 902. "Termination under section 161.001(b)(1)(E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious 'course of conduct' by the parent is required." In re K.S., 2016 WL 1613126, at *14. Here, the record includes much more than a single act or omission by Mother.
Mother's own testimony confirmed she voluntarily, deliberately, and consciously disregarded court orders. For example, Mother testified that a bipolar diagnosis received was "inaccurate" and she refused to take the medication prescribed to treat the condition. She also disregarded the court's non-contact orders. After E.S.S. was placed with D.S. in Arkansas, Mother moved to Arkansas to "monitor" the placement and be near E.S.S. Although she was ordered to have no contact with E.S.S., D.S. and Father reported incidents in which Mother showed up to D.S.'s home unannounced, confronted D.S. at a grocery store while D.S. was there and E.S.S was in the car, and attempted to interact with E.S.S. at a park where Father and E.S.S. were playing. Mother was arrested for aggravated assault and criminal trespass after an incident where she went to D.S.'s property, tried to see E.S.S., and threatened Father with a screwdriver and a pistol. Mother also took steps to gain regular access to E.S.S. despite the trial court's orders, including applying for a job at E.S.S.'s school, asking the school principal to set up observations for her at E.S.S.'s house, and seeking a protective order in Arkansas to get custody of E.S.S.
Further, Mother's conduct adversely affected E.S.S.'s mental and emotional well-being. One example was the altercation at the Department's offices the night E.S.S. was removed from Mother's custody. E.S.S. heard the yelling and had to be taken out the back door to safety. Another example occurred in March 2022 when Mother went to D.S.'s house unannounced. Mother was parked in the driveway when D.S. returned home with E.S.S. D.S. saw Mother and backed out so E.S.S. would not see Mother. But E.S.S. saw Mother and, according to D.S., was very scared. E.S.S. told D.S. she was afraid Mother was going to take her and she would never see D.S. and Father again. E.S.S. "crouched down in the back of the car and hid" while D.S. took E.S.S. to a neighbor's house.
According to Father, although E.S.S. loves and misses Mother, "if she sees her in public, she hides. She's terrified that her mom is going to steal her away. And E.S.S. has actually, on her own, developed the opinion that her mom doesn't always tell her the truth." Father also described an incident where Mother showed up at a park in Arkansas known as Cold Run while Father was there with E.S.S. According to Father, when E.S.S. saw Mother "she said 'Dad,' and she screamed and ran to the car." Father also testified there were times before he and Mother broke up that E.S.S. may have seen Mother hitting Father.
An outburst by Mother during trial provided additional evidence from which the jury could conclude Mother was suffering from untreated mental illness that could place E.S.S. in physical and emotional danger. The trial court made a record of the incident:
THE COURT: The jury is not in the courtroom. We have secured them in the jury room.
[Mother] is out in the hallway throwing a fit and having to be monitored by officers and is not currently allowed back in the hallway that accesses my courtroom because she is not under control. She's not throwing up. She's just out there throwing a fit.
For the record, [Mother] got up in the middle of me having the attorneys approach so that I can just remind them to please use the microphone -- and I'm not using one. To please use a microphone because [Father] and [D.S.] are on Zoom. And I wanted them to be able to hear since they were able to listen in.
And so, I was just going to ask the attorneys to make sure they use the microphone. When I asked the attorneys to approach, [Mother] started to come up and then got up and walked over towards my jury and actually removed the tape and walked under it in front of two jurors in my created jury box. She walked directly in front of them, went to the side door, which is locked.
She turned around and started telling me that she was going to throw up, came back in front of those jurors, ripped open the tape, came around the corner. And I had to have officers escort her out of the courtroom with the entire jury sitting here while she was having this fit in front of my jury panel.
Throughout the trial, Mother made statements from counsel table and was instructed repeatedly by the court not to do so. This continued even after she was allowed to return to the courtroom following her outburst.
The jury could have concluded Mother's past and continued drug abuse, exposure of E.S.S. to domestic violence, untreated mental health issues, volatility, inappropriate attempts to interfere with the child's placement, arrest for aggravated assault and criminal trespass at E.S.S.'s placement location, the removal of another child during this case, and her lack of visitation for most of the case exposed E.S.S. to a life of uncertainty and instability, endangering her physical and emotional well-being. See In re S.R., 452 S.W.3d at 363; see also In re A.R.O., 556 S.W.3d at 910-11; In re J.O.A., 283 S.W.3d at 346. Mother's positive drug tests and her missed drug tests during the case support an inference she continued using drugs during the case while under the court's supervision, further supporting the jury's subsection (E) finding. See In re M.E.-M.N., 342 S.W.3d at 263 ("[A] parent's decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, supports a finding that the parent engaged in conduct that endangered the child's physical or emotional well-being."); see also In re J.O.A., 283 S.W.3d at 346.
Further, a parent's efforts to improve or enhance parenting skills are relevant in determining whether a parent's conduct results in endangerment. See In re D.T., 34 S.W.3d 625, 640 (Tex. App.-Fort Worth 2000, pet. denied). Here, Mother refused to complete court-ordered services designed to improve her parenting skills and assist her in remaining sober. The jury was free to consider the clear, ongoing instability Mother's conduct has burdened E.S.S. with and conclude she engaged in conduct that endangered E.S.S.'s physical or emotional wellbeing.
Under this record, we conclude the evidence was legally and factually sufficient to support the jury's endangerment findings and termination of Mother's parental rights under subsection (D) and (E) of section 161.001(b)(1). Therefore, we overrule Mother's second and third issues.
III. Best interest of the child
In addition to the findings under section 161.001(b)(1) of the family code, the jury also determined that termination of the parent-child relationship was in the best interest of E.S.S. In her first issue, Mother argues the evidence is legally and factually insufficient to support this finding.
A. Applicable law
A judicial determination of the "best interest" of a child "is not dependent upon, or equivalent to, a finding that the child has been harmed by abuse or neglect or is in danger of such harm." In re M.J.P., No. 05-16-01293-CV, 2017 WL 655955, at *6 (Tex. App.-Dallas Feb. 17, 2017, no pet.) (mem. op.). Rather, "best interest" is "a term of art encompassing a much broader, facts-and-circumstances based evaluation that is accorded significant discretion." Id. (quoting In re Lee, 411 S.W.3d 445, 460 (Tex. 2013) (orig. proceeding)); see also In re C.R., 263 S.W.3d 368, 375 (Tex. App.-Dallas 2008, no pet.) ("[P]arental rights may not be terminated merely because a child might be better off living elsewhere.").
The supreme court has identified nine factors that may assist our review of a best-interest finding:
(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The Holley factors focus on the best interest of the child, not the best interest of the parent, and are not exhaustive. Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 86 (Tex. App.-Dallas 1995, no writ); In re C.H., 89 S.W.3d at 27.
A best interest finding need not be supported by evidence of every Holley factor, particularly if there is undisputed evidence the parental relationship endangered the child's safety. See In re C.H., 89 S.W.3d at 27. Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the child's best interest. DM. v. Tex. Dep 't of Family & Protective Servs., No. 03-17-00137-CV, 2017 WL 2628949, at *4 (Tex. App.-Austin June 13, 2017, no pet.) (mem. op.). On the other hand, the presence of scant evidence relevant to each factor will generally not support such a finding. In re C.H., 89 S.W.3d at 27. Further, the same evidence can be relevant to both section 161.001 (b)(1) termination grounds and the child's best interest. In re D.W., 445 S.W.3d 913, 925 (Tex. App.- Dallas 2014, pet. denied).
In addition, the Texas Family Code sets out factors to be considered in evaluating a parent's willingness and ability to provide the child with a safe environment. In re C.V.L., 591 S.W.3d at 748 (first citing Tex. Fam. Code § 263.307(b), and then citing In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (citing family code section 263.307 and Holley as containing factors to consider "when determining whether termination of parental rights is in the best interest of the child")). The statutory best interest factors include the following:
(1) the child's age and physical and mental vulnerabilities; . . . (3) the magnitude, frequency, and circumstances of the harm to the child; . . . (6) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home; . . . (8) whether there is a history of substance abuse by the child's family; . . . (10) 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; (11) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; (12) whether the child's family demonstrates adequate parenting skills . . .; and (13) whether an adequate social support system consisting of an extended family and friends is available to the child.Tex. Fam. Code § 263.307(b)(1)-(13).
Although courts may consider any other factor relevant to the child's best interest, there is "[a] strong presumption . . . that a child's best interests are served by preserving the parent-child relationship, where possible." In re D.D.M., 2019 WL 2939259, at *5 (quoting Burns v. Burns, 434 S.W.3d 223, 230 (Tex. App.-Houston [1st Dist.] 2014, no pet.)); In re R.R., 209 S.W.3d at 116 ("there is a strong presumption that the best interest of a child is served by keeping the child with a parent").
B. Application of law to facts
Mother contends the evidence was legally and factually insufficient to support the jury's finding that termination was in the child's best interest. She maintains the record "is deficient of any significant exploration into" any of the Holley factors and was supported only by conclusory testimony that termination was in E.S.S.'s best interest because E.S.S. could be placed with a different family who can meet her needs. We disagree.
In a court's best interest analysis, it is appropriate to consider evidence showing the parent did not comply with the court-ordered service plan for reunification with the child. See In re E.C.R., 402 S.W.3d at 249 (findings under section 161.001(1)(O) can support best interest finding); In re J.T.G., No. 14-10-00972-CV, 2012 WL 171012, at *17 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) (considering failure to participate in services required for reunification in best-interest determination). Unchallenged predicate ground findings are binding and can support the best interest finding. In re K.M., No. 07-16-00120-CV, 2016 WL 3660076, at *3 (Tex. App.-Amarillo Jun. 29, 2016, no pet.) (mem. op.); In re E.A.F., 424 S.W.3d at 750 (citing In re C.H., 89 S.W.3d at 28). The best interest determination may rely on direct and circumstantial evidence, subjective factors, and the totality of the evidence. In re A.I.F., No. 07-17-00464-CV, 2018 WL 2272604, at *4 (Tex. App.-Amarillo May 17, 2018, no pet.) (citing In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.-Amarillo 2011, no pet.)).
The only court-ordered service completed by Mother was the substance abuse evaluation. However, she did not follow the recommendations that came from that evaluation. She did not attend NA/AA meetings as required and did not complete the required marijuana education program. Mother performed no other court-ordered services and maintained those services were "unnecessary." The record reflects Mother also failed to establish she satisfied the requirements for maintaining stable housing and employment. The jury and the trial court's finding that Mother failed to comply with the court-ordered steps necessary to reunify with her child and show she would be responsible for her needs, which is unchallenged, supports the court's best interest finding. See In re E.A.F., 424 S.W.3d at 752; In re J.T.G., 2012 WL 171012 at *17-18 (finding parent's failure to demonstrate stable housing and employment supported a finding that parental termination was in the child's best interest).
In addition, Mother's failure to complete parenting classes, participate in individual therapy, undergo psychiatric and psychological evaluations, or attend NA/AA meetings demonstrates Mother did not prioritize improving her ability to parent E.S.S. so she could be returned to Mother's care. The willingness and ability of a parent to seek out and complete counseling services and effect positive changes should be considered in evaluating best interest. See Tex. Fam. Code § 263.307(b)(10), (11). Mother's failure to engage in the programs ordered in the Family Service Plan supports the trial court's best-interest finding. See In re D.T., 34 S.W.3d at 640.
Mother's testimony concerning her drug use further supports the finding that termination was in E.S.S.'s best interest. Although Mother was provided an opportunity to address her drug use through the Family Service Plan, she failed to do so and told the jury she plans to continue to use medical marijuana to treat her fibromyalgia and post-traumatic stress disorder (PTSD) if she gets custody of her children again. She also testified she would not need someone to watch E.S.S. when she was under the influence of marijuana. Mother insisted she had been sober and drug free (except for medical marijuana) since December 2021, and her mental health "is not a problem." Mother's response when shown the December 2022 positive test results in Arkansas was disbelief:
This is not possible. This is definitely not possible. This is the same fake crap they keep doing with this testing. I'm not having it. I'm not on methamphetamine, and I'm tired of hearing it.
He tried to get me hooked on it before I left, and he spread this whole rumor across Prescott, Arkansas. I got people propositioning me, treating me like a prostitute, treating me like a druggie, and treating me like this. And this is not true.
I'm not a prostitute. I'm not a druggie. This is not possible. I've been getting drug tested every single week since my son has been born, and they are negative.
The jury could infer Mother's failure to address her involvement with illegal drugs would lead to continued drug use. See In re J.D., 436 S.W.3d at 118 (stating a fact finder may infer that past conduct endangering the well-being of a child may recur in the future if the child is returned to the parent); In re M.L.G.J., No. 14-14-00800-CV, 2015 WL 1402652, at *10-11 (Tex. App.-Houston [14th Dist.] Mar. 24, 2015, no pet.). In addition, the evidence that supports the trial court's subsection (D) and (E) findings is probative of the best interest finding. See E.C.R., 402 S.W.3d at 250.
Moreover, all witnesses except for Mother and L.S. testified they had concerns about Mother's stability and mental health. Department officials and CASA volunteer Kelly Reed all agreed E.S.S.'s medical, emotional, and physical needs were currently being met by Father and D.S., and E.S.S. was thriving under their care.
Reed testified E.S.S. requires "Lots of stability, emotional, physical. She needs to know exactly what's going to be happening, what she can rely on, who she can rely on." Reed believed Father and D.S. provided E.S.S. that stability. She told the jury Father's living situation is a stable environment for E.S.S, but the opposite is true of Mother's living conditions. She also explained CASA's many concerns with Mother:
CASA is concerned about the erratic behavior that we've seen over the last almost 18 months. It's not uncommon to see this at the beginning of a case. Everybody's feelings are still hurt. Everybody is upset. We understand that.
But usually there's a -- there comes a point where the parent starts to understand what's at stake, what needs to be done to get their child back in their possession, and it just seems to have gone the opposite direction in this case.
Reed had not seen progress from Mother and does not think Mother can create a stable environment for E.S.S., "at least not based on the last 18 months of her behavior." Reed cited lack of stable housing, lack of income, and untreated mental health issues as concerns:
The lack of stable housing, the lack of income. I've heard her testify that she's currently in a two-bedroom apartment, which is fantastic. I don't know how long that is going to last.
I don't know what program she's acquired that apartment through. And if it's a temporary -- you know, we'll pay your rent for six months kind of a thing. But we're most concerned about the mental health issues that we think we've seen throughout this case.
Reed also testified she believes E.S.S. could be in physical or emotional danger in the unsupervised custody of Mother because her "instability and erratic behavior and seemingly paranoia, makes me question what would happen if a six-year-old was along for that ride."
Zapata's testimony and recommendations were consistent with Reed's concerns. Zapata also expressed concern that Mother will try to disrupt the child's placement with Father through the court system if her rights are not terminated. This would disrupt E.S.S.'s sense of permanency and stability. Mother confirmed at trial she would "continue litigation until I get my children where they should be, with me." Zapata agreed termination was in E.S.S.'s best interest.
Mother's own testimony and outbursts during trial reinforced Reed and Zapata's concerns regarding Mother's mental health. For example, Mother repeatedly stated D.S. was in a conspiracy with the Department to kidnap and adopt E.S.S. Mother also stated D.S. "wanted her dead." The Department's witnesses denied the allegations, and the evidence confirmed D.S. was not seeking to adopt E.S.S. Mother also made several allegations against Father, none of which were substantiated. For example, Mother insisted Father and D.S. sent her threatening texts and were "hacking" into her emails. Mother also accused Father of using the "dark web," being drunk when caring for E.S.S. and neglecting her, drugging her with Benadryl, and physically abusing her. The jury as sole arbiter of witnesses' credibility could have found Mother's testimony paranoid and not credible.
Mother also inconsistently testified about her past drug use and reasons for not completing court-ordered services. Although Mother insisted she completed some services, had certificates to prove the completion, attended NA/AA meetings, engaged in individual counseling, and provided a copy of her lease to the Department, she presented no evidence to support those statements. On the other hand, Mother conceded she failed to complete the court-ordered services and gave the jury many excuses for her non-compliance. Those excuses ranged from her belief the services were "unnecessary," to her refusal to submit to a hair follicle test because it is "against [her] religion" to cut her hair. When asked why she skipped required drug tests, she responded "I was pregnant, and I had had [sic] an EMT come check me out. I had a borderline heatstroke again. I'm susceptible to it, unfortunately. So during my pregnancy I was told that I needed to stay home." She also claimed she was unable to drive from Arkansas to Texas for drug testing because of her pregnancy and other health issues, such as fibromyalgia. She presented no evidence she communicated those issues to the Department or otherwise sought alternative means to have the test administered. The jury could reasonably infer that Mother avoided taking the drug test because she was using drugs. In re C.R., 263 S.W.3d at 374. The jury could have also found Mother's excuses not credible. See In re J.O.A., 283 S.W.3d at 346 (jury is sole arbiter of witnesses' credibility).
Considering the relevant Holley factors and giving due consideration to evidence the jury could have reasonably found to be clear and convincing, the jury could reasonably have formed a firm belief or conviction that termination of Mother's parental rights to E.S.S. is in the child's best interests. See J.P.B., 180 S.W.3d at 573; Holley, 544 S.W.2d at 371-72. The evidence is legally and factually sufficient to support the trial court's best interest finding. We overrule Mother's first issue.
IV. Conservatorship
In her fourth issue, Mother contends she should be appointed as E.S.S.'s managing or possessory conservator. However, Mother is not entitled to be appointed conservator because we affirm the trial court's termination of her parental rights regarding E.S.S. See In re C.M.C., No. 14-12-00186-CV, 2012 WL 3871359, at *8 (Tex. App.-Houston [14th Dist.] Aug. 30, 2012, pet. denied) (mem. op.) (overruling conservatorship issue because termination affirmed); see also In re M.R.D., 04-19-00524-CV, 2020 WL 806656, at *9 (Tex. App.-San Antonio Feb. 19, 2020, pet. denied) (mem. op.) (holding that because the trial court did not err in terminating appellant's rights, appellant no longer had any legal rights to her children and could not challenge the portion of the termination order that related to the appointment of conservators); In re L.T.P., No. 04-17-00094-CV, 2017 WL 3430894, at * 6 (Tex. App.-San Antonio 2017, pet. denied) (same). We overrule Mother's fourth issue.
V. Indian Child Welfare Act
In her fifth issue, Mother contends the Department and the trial court failed to comply with the notice provisions of the Indian Child Welfare Act. See Indian Child Welfare Act of 1978, 25 U.S.C.A. §§ 1901-63 (2001) (ICWA). The ICWA imposes a duty on parties seeking parental rights termination to notify the relevant tribe when the trial court knows or has a reason to know that the child is an Indian child. In re T.R., 491 S.W.3d 847, 850 (Tex. App.-San Antonio 2016, no pet.) (citing 25 U.S.C.A. § 1912(a)). When a state court has reason to know that a child involved in a child custody proceeding might be subject to ICWA, the court shall seek verification of the child's status from either the Bureau of Indian Affairs or the child's tribe. A.M., No. 02-21-00313-CV, 2022 WL 325473, at *2 (Tex. App.-Fort Worth Feb. 3, 2022, pets. denied) (citing BIA Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584, 67,586 (Nov. 26, 1979)). The tribal entities must be notified by registered mail with return receipt requested. 25 U.S.C.A. § 1912(a). The trial court's application of ICWA is reviewed de novo, as is the question of whether ICWA applies to a proceeding. In re A.E., No. 02-19-00173-CV, 2019 WL 4784419, at *9 (Tex. App.-Fort Worth Oct. 1, 2019, pet. denied) (mem. op.); T.R., 491 S.W.3d at 850.
Here, Mother stated during a hearing below she has Indian heritage of Cherokee and Choctaw. Mother asserts the Department did not send out the ICWA-mandated notices and seeks a remand for the trial court to conduct the appropriate inquiry under the ICWA. After Mother filed her brief, the Department asked this Court to abate the appeal to allow it and the trial court to comply with the notice provisions of the ICWA. In its motion, the Department agreed the record contained information of the child's alleged "Cherokee" and "Choctaw" heritage, but the record did not indicate the tribes were notified in accordance with the ICWA. The Department requested this Court abate the appeal to notify the proper tribes as required under the ICWA, to allow the trial court to hold a hearing, and to determine if the child is an Indian child under the ICWA. See 25 U.S.C.A. § 1912(a); 25 CFR § 23.11. We granted the Department's motion, abated the appeal, and remanded to the trial court with instructions to (1) provide proper notice as required by the ICWA to the relevant Indian tribes, (2) conduct a hearing to determine whether E.S.S. is an Indian child under the ICWA, and (3) file supplemental records of the proceedings.
The trial court held a hearing on May 18, 2023, and issued findings of fact and conclusions of law on May 26, 2023, pursuant to this Court's order. Subsequently, it filed with this Court the reporter's record and its written findings from the hearing. The trial court found (1) the Department sent notices as required under the ICWA to the Bureau of Indian Affairs, the Secretary of the Interior, and six relevant tribes of the Cherokee and Choctaw Nations, (2) Cherokee Nation Indian Child Welfare responded and concluded E.S.S. is not an Indian child in relation to the Cherokee Nation, and (3) none of the other relevant tribes had responded at that time. After hearing testimony and reviewing the evidence, which included copies of the notices, proof of certified mailing receipts, and the reply letter from the Cherokee Nation, the trial court (1) accepted the determination of the Cherokee Nation that E.S.S. is not an Indian child as it relates to the Cherokee Nation, and (2) found it was unable to make a determination at that time as to whether or not E.S.S. is an Indian child as it related to the Choctaw Nation.
Based on the record before us, we conclude the Department and the trial court have complied with the ICWA. In re D.C.B., No. 12-21-00175-CV, 2022 WL 399141, at *2-3 (Tex. App.-Tyler Feb. 9, 2022, no pet.) (mem. op.) (trial court complied with ICWA requirements by sending proper notices to the required parties and finding the child was not an Indian child). Because Mother's sole complaint was the Department did not provide proper notice as required by the ICWA, and now proper notice has been sent and the trial court has made its determination, we overrule Mother's fifth issue. See In re M.D., No. 05-19-01122-CV, 2020 WL 831601, at *1 (Tex. App.-Dallas Feb. 20, 2020, no pet.) (mem. op.) (overruling appellate issue requesting remand for compliance with ICWA); In re P.J.B., No. 10-12-00286-CV, 2013 WL 1286677, at *3 (Tex. App.-Waco Mar. 28, 2013, no pet.) (mem. op.) (same).
CONCLUSION
Under this record, we conclude the evidence was legally and factually sufficient to support the jury's findings, Mother is not entitled to be named conservator for E.S.S., and the trial court complied with the requirements of the ICWA. Accordingly, we overrule Mother's issues and affirm the trial court's termination of her parental rights.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's January 6, 2023 Order of Termination is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 27th day of July 2023.