Opinion
05-23-00826-CV
01-30-2024
IN THE INTEREST OF J.T., A CHILD
On Appeal from the 303rd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-21-19311-V
Before Justices Nowell, Goldstein, and Breedlove
MEMORANDUM OPINION
BONNIE LEE GOLDSTEIN, JUSTICE
Mother appeals the termination of her parental rights to J.T. and the appointment of the Texas Department of Family and Protective Services/Dallas County Child Protective Services (the Department) as managing conservator of J.T.In five issues, Mother challenges the legal and factual sufficiency of the evidence to support the trial court's (1) termination under Texas Family Code section 161.001(b)(1)(D), (E), and (O), (2) finding that termination of Mother's parental rights was in J.T.'s best interest, and (3) appointment of the Department as J.T.'s managing conservator. We affirm the trial court's judgment.
The respondent father was never located, was served by publication, and appeared though an attorney ad litem. Father's parental rights were terminated by the trial court's decree of termination; Father's termination is not a subject of this appeal.
BACKGROUND
J.T. was born in December 2016. Mother has an extensive history with the Department, including, from the Department's perspective, "a history of alcoholism and cocaine and marijuana use and being unable to provide a safe and stable environment for her children." A factual summary of the Mother's history with the Department through various Department caseworkers is germane to our analysis.
Some of the historical facts were elicited during the termination trial commenced on April 27, 2023 through the testimony of Calla Anderson and Ali Witt. Mother was unable to attend due to illness. The termination trial was continued on May 23, 2023, with additional testimony that provided history with the Department.
Calla Anderson testified that she was employed by the Department as an investigator in 2019. Anderson first became involved in this case when the Department received a referral on December 31, 2019, concerning Mother "being homeless and intoxicated and taking [J.T.] to the fire station and not being able to care for him" and "needing some kind of assistance due to her substance abuse."
Anderson investigated Mother's prior history with the Department and determined Mother had a "case that was due to neglect" regarding one of her children in 2012, another case of a child death "due to her co-sleeping with the child," and a case involving "dropping a child on the head." Mother was arrested on May 11, 2019, for assault family violence after she hit her fourteen-year-old niece for not cleaning up her room. On November 3, 2019, Mother was again arrested for assault family violence. At that time, Mother was living with her mother and stepfather, and she was "drinking and they kept putting [Mother] out and stuff." Mother claimed "they assaulted me because the man tried to fight me and they arrested me because I was there at their house." J.T. was with Mother at the time of both assaults.
Anderson spoke with Mother, who reported she had a "substance abuse problem, drinking," she was unable to care for J.T., and she "was looking for somebody to help her." Mother said J.T. was residing with her cousin Angela Jackson. On the day of the 2019 removal, Mother came to Jackson's home and appeared "very intoxicated, slurring of her words, acting erratic, like running in the street, hiding behind cars, crying, unable to speak with us." Anderson attempted to locate placement for J.T. with Jackson, but Jackson said she was unable to care for J.T. Anderson was also unable to place J.T. with Mother's mother because of her own "CPS history." Thus, in January 2020, J.T. was placed in foster care.
Anderson recommended services for Mother including a psychological evaluation, a psychiatric evaluation, individual counseling, drug treatment, and random drug testing. By order dated January 29, 2020, the court ordered Mother to complete the recommended services.
On January 28, 2021, the trial court signed an order of monitored return that allowed J.T. to be returned to Mother's home for a monitoring period of 180 days. Mother successfully completed the Legacy Court Program that entailed random drug testing, attendance at meetings, and having a sponsor. On June 21, 2021, the Department nonsuited its case.
Less than two months later, on August 8, 2021, the Department received a referral alleging that Mother had relapsed and was drinking alcohol again. The referral stated that, on Saturday August 7, 2021, Mother "was seen and was highly intoxicated." Mother "was not able to walk straight, and alcohol could be smelled on her," but Mother was "not admitting to relapsing." Mother was driving while intoxicated and posted a video to Facebook live where J.T. was in the car but "no one was wearing a seat belt;" it was unknown whether Mother was intoxicated at the time. On September 19, 2021, Mother was arrested for driving while intoxicated with a blood alcohol content greater than or equal to 0.15.
Ali Witt, a Department caseworker, initially became involved in Mother's case "due to a couple of different intakes" alleging "neglectful supervision as well as physical abuse." Specifically, there were concerns that Mother was intoxicated while caring for J.T. and driving while intoxicated with J.T. in the car and without using a proper car seat or seatbelt. During the time when Mother had supervised visitation with J.T., Witt testified, Mother missed "several" visits, and the Department required Mother to "confirm 24 hours in advance as well as two hours in advance just to make sure that we weren't bringing [J.T.] up to the office for no reason."
The Department received three referrals between August and December, the last relative to alleged physical abuse of JT, who was observed to have a "knot in the center of his forehead that is about the size of a ping pong ball", "it was very raised and a little red." Due to concerns for JT's safety based upon the outcry of physical abuse and excessive physical discipline" an emergency removal was approved. JT was removed and placed in foster care.
On December 3, 2021, the Department filed its original petition seeking, among other things, termination of Mother's parental rights to J.T. As grounds for termination, the petition asserted Mother had knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, pursuant to section 161.001(b)(1)(D) of the Texas Family Code and engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child, pursuant to section 161.001(b)(1)(E) of the family code.
In January 2022, in accordance with Witt's recommended family plan of service, the trial court entered a temporary order directing Mother to complete an OSAR evaluation, a psychological evaluation, participate in random drug testing, and attend parenting and dual counseling. Mother completed her individual counseling, parenting classes, and OSAR assessment. However, Mother did not complete a psychiatric evaluation, missed "20 to 25" of the 40 random drug tests Witt requested, and did not complete outpatient alcohol services. In Witt's dealings with Mother, there was one visit where Mother was "stumbling and slurring her speech" and said she was sick, but Witt was concerned that Mother was intoxicated. In January 2023, Mother was arrested again on a DWI charge.
In February 2023, Victoria Chisolm became Mother's caseworker. At that time, Mother "was to complete outpatient services as well as complete a psychiatric evaluation and continue on with random drug testing." Chisolm sent Mother for drug testing every week, but Mother only tested twice in February and March, once in April, and not at all in May although she was sent for testing twice. Although the Department arranged for Mother to independently set up intensive outpatient treatment through Magdalen House, Mother "completed intake and started in March" and was involuntarily dismissed in April.
On April 19, 2023, the Department filed an amended petition seeking termination of Mother's parental rights on the same grounds asserted in its original petition with the additional allegation that Mother failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child, pursuant to section 161.00l(b)(1)(O) of the family code.
Mother testified at the May 23rd hearing. When asked if she recalled a prior CPS case with J.T. where she tried to relinquish J.T. to the fire department, Mother testified:
With that, no, that is not accurate. With that is that I was homeless. I didn't have anywhere to go. And I actually called family members to actually come and get [J.T.] and so . . .
At this point in Mother's testimony, the Department's counsel objected that the testimony was nonresponsive, and the trial court sustained the objection. In response to further questioning, Mother testified she "never [took J.T.] to the fire department." Mother agreed that, in a "prior case," she was "ordered services," "accepted into Legacy Family Court Program," there was "an order for monitored return" and a motion for nonsuit, and she "got [J.T.] back" in June 2021.
In a prior case, Mother agreed J.T. was removed and the case commenced in December 2019.
Mother testified she "started relapsing" drinking "a week or two before" her DWI arrest on September 19, 2021. Mother was arrested on a second DWI on June 11, 2022. The Department entered into evidence records showing that, in January 2023, Mother was placed on deferred adjudication (probation) for fifteen months on one DWI charge after entering a plea of no contest. Mother testified her other DWI was dismissed for "time served." Mother testified that, at the time of the hearing, she was not "financially stable ready" to have J.T back in her possession, and she did not have a job or a place of her own to live. Mother admitted she had failed to complete a psychiatric evaluation and missed "a couple" drug tests.
The Department entered into evidence a plea bargain agreement showing Mother entered a plea of no contest to the other DWI, and the agreement specified "9 days in jail" as the plea recommendation/agreement.
Mother testified J.T. will "throw tantrums and stuff" when he gets mad, "sometimes he would run off even though he can't hold his balance," and "he'll get mad or not want to talk to you or sometimes want to be left alone." Mother acknowledged J.T has been diagnosed with "ADHD and traumatized disorder." Prior to J.T. "coming into the Department, in foster care in December," J.T. was not on any medication, but he was on medication at the time of the hearing, though Mother testified she did not know what medication J.T. was taking. Mother knew J.T. was seeing a therapist, but she was not sure what type of therapist because "everybody withholds information" and she did not "know stuff about [her] kids until the day of the court." Mother did know that J.T. was "not seeing a trauma therapist before he came into foster care."
Sue Winemiller testified she was J.T.'s court appointed special advocate (CASA) volunteer when he "came into care in 2020" and when he came back into care in 2021. In 2020, J.T. was three years old, and "what was notable for him is he did not have well-developed speech." J.T. "had trouble with bed wetting and accidents during the day." In early 2020, J.T. was placed with foster parents. J.T. was eventually returned to Mother, but he was returned to care after Mother's relapse. After returning to care, J.T. was diagnosed with Trauma Induced Stress Disorder and ADHD, and the foster family was "successful in providing the care given [J.T.'s] specific needs." The kind of trauma-based therapy that J.T. is in takes a "very long time to see results," and Winemiller testified the foster family has been trained in "trust-based relationship intervention." Winemiller testified that CASA believes it is in the best interest of J.T. for Mother's parental rights to be terminated and for him to be adopted by the foster family.
On August 1, 2023, the trial court signed a decree of termination containing findings that Mother violated family code sections 161.001(b)(1)(D), (E), and (O), terminating Mother's parental rights to J.T., and appointing the Department as J.T.'s permanent managing conservator. This appeal followed.
STANDARD OF REVIEW
The Texas Family Code provides that a court may order termination of a parent-child relationship if the court finds by clear and convincing evidence that the parent engaged in conduct prohibited by section 161.001(b)(1) and that termination is in the child's best interest. See Tex. Fam Code § 161.001(b)(1), (2). Because the fundamental liberty interest of parents in the care, custody, and control of their children is of constitutional dimensions, involuntary parental terminations must be strictly scrutinized. In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). In such cases, due process requires the petitioner to justify termination by clear and convincing evidence. Tex. Fam Code § 161.001(b); In re E. N.C. , 384 S.W.3d 796, 802 (Tex. 2012). "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." Tex. Fam Code § 101.007; In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam); In re N.T., 474 S.W.3d 465, 475 (Tex. App.-Dallas 2015, no pet.).
On appeal, we apply a standard of review that reflects the elevated burden at trial. In re A.B., 437 S.W.3d 498, 502 (Tex. 2014); In re A.T., 406 S.W.3d 365, 370 (Tex. App.-Dallas 2013, pet. denied). Under both legal and factual sufficiency standards, we consider all the evidence, defer to the factfinder's credibility determinations, and determine whether the factfinder could reasonably form a firm belief or conviction that the grounds for termination were proven. In re N.T., 474 S.W.3d at 475. "The distinction between legal and factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be considered." In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).
In 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. Id. We "consider all the evidence, not just that which favors the verdict," and we assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. In re N.T., 474 S.W.3d at 475 (internal quotation omitted). We disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id.
We must perform "an exacting review of the entire record" in determining the factual sufficiency of the evidence supporting the termination of a parent-child relationship. In re A.B., 437 S.W.3d at 500. When reviewing the factual sufficiency of the evidence supporting a termination finding, we ask whether, in light of the entire record, the evidence is such that a factfinder could reasonably form a firm conviction about the truth of the allegations against the parent. Id.; In re J.D.B., 435 S.W.3d 452, 463 (Tex. App.-Dallas 2014, no pet.). We must consider whether the disputed evidence is such that a reasonable factfinder could not have reconciled that disputed evidence in favor of its finding. In re N.T., 474 S.W.3d at 475. If the disputed evidence is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.
ANALYSIS
The court 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 child. See Tex. Fam Code §§ 161.001(b)(1)(D), (E), (O); 161.001(b)(2). When, as in this case, a trial court terminates a parent's rights based on section 161.001(b)(1)(D) or (E) and the parent challenges that finding on appeal, due process requires the appellate court to review the finding and detail its analysis even if it affirms the termination order based on other grounds under section 161.001(b)(1). In re C.W., 586 S.W.3d 405, 407 (Tex. 2019) (per curiam); In re N.G., 577 S.W.3d at 235.
First Issue: Endangering Environment: Section 161.001(b)(1)(D),
In her first issue, Mother contends the evidence was legally and factually insufficient to support the court's finding under section 161.001(b)(1)(D).
That provision requires the jury to find by clear and convincing evidence that a 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). Subsection (D) focuses on whether endangerment results from the child's environment. See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). "Environment" refers to both the acceptability of living conditions and the parent's conduct in the home. Id. "A child is endangered when the environment creates a potential for danger that the parent is aware of but consciously disregards." Id. "Inappropriate, abusive, or unlawful conduct by a parent or other persons who live in the child's home can create an environment that endangers the physical and emotional well-being of a child as required for termination under subsection (D)." Id.
"'[E]ndanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, [but] it is not necessary that the conduct be directed at the child or that the child actually suffers injury." Tex. Dep't of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
While paragraph (D) concerns endangerment due to the child's environment, parental conduct is relevant. See In re J.D.B., 435 S.W.3d at 463. Evidence of illegal drug use or alcohol abuse by a parent is often cited as conduct which will support an affirmative finding that the parent has engaged in a course of conduct which has the effect of endangering the child. See, e.g., Toliver v. Tex. Dep't of Family & Protective Servs., 217 S.W.3d 85, 98 (Tex. App.-Houston [1st Dist.] 2006, no pet.); In re S.E.W., 168 S.W.3d 875, 882 (Tex. App.-Dallas 2005, no pet.) A parent acts "knowingly" when the parent is aware that the environment creates a potential danger to the child but the parent disregards that risk. See In re P.N.T., 580 S.W.3d 331, 355 (Tex. App.-Houston [14th Dist.] 2019, pet. denied); In re L.M.M., 522 S.W.3d 34, 44 (Tex. App.-Houston [1st Dist.] 2017, pet. denied).
Mother concedes the evidence in this case showed she admitted she has "a drinking problem." However, Mother argues, there is no evidence of "how many drinks [Mother] has at a given time or how often she drinks," no evidence "that every time [Mother] is drinking that [J.T.] is with her, and no evidence of "what [Mother's] behavior is around [J.T.]."
The record reflects that alcohol abuse has been a persistent problem in Mother's life. Mother admits she has a drinking problem, is unable to care for J.T., and recognizes that she needs help. On the day J.T. was removed after the December 2019 referral, Mother appeared "very intoxicated, slurring of her words, acting erratic, like running in the street, hiding behind cars, crying, unable to speak with us." After completion of services and the return of J.T. in early 2021, Mother relapsed and was drinking alcohol again. The August 2021 referral stated that Mother was "highly intoxicated" and she "was not able to walk straight, and alcohol could be smelled on her." Mother was "not admitting to relapsing," but she was driving while intoxicated, posted a video to Facebook live where J.T. was in the car but "no one was wearing a seat belt" and it was unknown if Mother was intoxicated at the time. Mother was arrested twice for driving while intoxicated, first on September 19, 2021, and second on June 11, 2022. Within a few months of the return of J.T., Mother testified she "started relapsing" drinking "a week or two before" her September DWI arrest.
On this record, we conclude the evidence is both legally and factually sufficient to produce a firm belief or conviction as to the truth of the allegation that Mother knowingly placed or knowingly allowed J.T. to remain in conditions or surroundings which endangered his physical or emotional well-being. See In re N.G., 577 S.W.3d at 235. We overrule Mother's first issue.
Second Issue: Endangering Conduct: Section 161.001(b)(1)(E)
In her second issue, Mother contends the evidence was legally and factually insufficient to support the jury's finding to prove by clear and convincing evidence that Mother engaged in conduct or knowingly placed J.T. with persons who engaged in conduct which endangered his physical or emotional well-being. See Tex. Fam Code § 161.001(b)(1)(E).
Subsection (E) provides for termination of parental rights if the parent has "engaged in conduct . . . which endangers the physical or emotional well-being of the child." Tex. Fam. Code Ann. § 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." In re I.T., No. 01-18-01013-CV, 2019 WL 1996515, at *8 (Tex. App.-Houston [1st Dist.] May 7, 2019, no pet.) (mem. op.) (quoting 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.
It is unnecessary to establish a parent intended to endanger a child to support termination under subsection (E). Id. Nor is it necessary to establish 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. Id. Danger to a child's well-being may be inferred from parental misconduct. Id.; In re K.P., 498 S.W.3d 157, 171 (Tex. App.-Houston [1st Dist.] 2016, pet. denied). "As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well-being of a child." In re I.T., 2019 WL 1996515, at *8 (quoting In re R.W., 129 S.W.3d 732, 739 (Tex. App.-Fort Worth 2004, pet. denied)).
Subsection (E) termination must be based on more than a single act or omission and requires a voluntary, deliberate, and conscious course of conduct by a parent. In re A.J.F., No. 05-23-00134-CV, 2023 WL 4247372, at *6 (Tex. App.- Dallas June 29, 2023, pet. denied) (mem. op.).
As stated previously, evidence of alcohol abuse by a parent will support an affirmative finding that the parent has engaged in a course of conduct which has the effect of endangering the child. See Toliver, 217 S.W.3d at 98; In re S.E.W., 168 S.W.3d at 882. Although J.T. was removed once and eventually returned to Mother, Mother relapsed and began drinking as well as driving while intoxicated, resulting in DWI arrests in September 2021 and January 2023. Here, the trial court could have found that Mother's continued alcohol abuse, relapse and escalation in driving while intoxicated, after J.T.'s initial placement in foster care, return after completion of services, and subsequent removal, established an endangering course of conduct that jeopardized the parent-child relationship and parental rights. See id.
On this record, the trial court could have formed a firm belief or conviction that Mother engaged in a course of conduct that endangered J.T.'s physical or emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(E). Accordingly, the evidence is legally and factually sufficient to support parental termination under subsection (E). See In re N.G., 577 S.W.3d at 235. We overrule Mother's second issue.
Third Issue: Section 161.001(b)(1)(O)
Having concluded that the evidence is sufficient to support the court's findings under paragraphs (D) and (E), we need not address Mother's third issue contending the evidence was legally and factually insufficient to support the jury's findings under paragraph (O). See In re N.G., 577 S.W.3d at 232 (appellate court need uphold only one termination ground and best interest finding to affirm termination, but due process requires appellate court to provide details of its analysis under paragraphs (D) and (E) because of potential consequences for parental rights to a different child under paragraph (M)).
Fourth Issue: Best Interest of Child
In her fourth issue, Mother contends the evidence is legally and factually insufficient to support the court's finding that termination of the parent-child relationship was in J.T.'s best interest. Whether termination of parental rights is in a child's best interest is "child centered," and the inquiry focuses on "the child's well-being, safety, and development." In re A.C., 560 S.W.3d at 631.
Proof concerning the statutory predicate findings under section 161.001(b)(1) does not relieve the Department of its burden of proving termination is in the child's best interest, but "the same evidence may be probative of both issues." In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). And, although there is a strong presumption that maintaining the parent-child relationship serves the child's best interest, there is also a presumption that promptly and permanently placing the child in a safe environment is in the child's best interest. Tex. Fam. Code Ann. §§ 153.131, 263.307(a).
The best-interest analysis may consider direct evidence, circumstantial evidence, subjective factors, and the totality of the evidence. In re B.R., 456 S.W.3d 612, 616 (Tex. App.-San Antonio 2015, no pet.); see also In re S.V.H., No. 01-19-01003-CV, 2020 WL 2988567, at *7 (Tex. App.-Houston [1st Dist.] June 4, 2020, pet. denied) (mem. op.). "A trier of fact may measure a parent's future conduct by her past conduct and determine whether termination of parental rights is in the child's best interest." In re B.R., 456 S.W.3d at 616; see In re C.H., 89 S.W.3d at 28 (stating past performance as parent "could certainly have a bearing on [parent's] fitness to provide for" child, and courts should consider prior history of child neglect in best-interest analysis).
The supreme court has set forth a list of non-exclusive factors to be considered in determining whether termination is in a child's best interest:
(1) the child's desires;
(2) the child's emotional and physical needs now and in the future;
(3) any emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody;
(5) the programs available to assist the individuals seeking custody to promote the best interest of the child;
(6) the plans for the child by the individuals or agency seeking custody;
(7) the stability of the home or proposed placement;
(8) the parent's acts or omissions which may indicate that the existing parent- child relationship is improper; and
(9) any excuse for the parent's acts or omissions.In re E. N.C. , 384 S.W.3d at 807 (quoting Holley v. Adams, 544 S.W.2d 367, 371- 72 (Tex. 1976)). This list is not exclusive, and the State need not prove all of the factors as a condition precedent to termination. In re C.H., 89 S.W.3d at 27. The absence of evidence concerning some of the factors does not preclude a factfinder from forming a firm belief or conviction that termination is in the child's best interest. In re A.C., 394 S.W.3d at 642. We will review the evidence supporting each factor.
The child's desires: J.T. was five at the time of the termination proceedings. Mother testified that, when she talks to J.T. on Zoom or when she sees him, all he talks about is he wants to come home. Witt testified that, when she saw J.T. with Mother, they seemed "bonded," and J.T. "always" seemed happy and excited to see Mother. Chisolm testified J.T. was happy to see Mother and seemed bonded to Mother "[a]t times."
The child's emotional and physical needs now and in the future: Winemiller testified J.T. was diagnosed with Trauma Induced Stress Disorder and ADHD. Mother testified that, prior to J.T. coming into foster care, J.T. was not on any medication, and he was "not seeing a trauma therapist." After coming in to foster care, J.T. was on medication and was seeing a therapist. Specifically, Winemiller testified J.T. was receiving therapy that specialized in "trauma-focused cognitive behavior therapy" along with speech therapy, physical therapy, and occupational therapy. Winemiller further testified that, in "the first case," J.T. was fitted with orthotics on his lower legs "to stop toe walking," but "that therapy was dropped" when he was returned to Mother. At the time of the hearing in May 2023, J.T. had been re-fitted with orthotics.
Any emotional and physical danger to the child now and in the future: After J.T. was first taken into foster care due to Mother's problem with alcohol, Mother completed services, and J.T. was returned to her. However, Mother began drinking again, was intoxicated in public and was twice arrested for DWI. J.T. was again removed. Mother admitted she had failed to complete a psychiatric evaluation and missed "a couple" drug tests. A finding of further danger to J.T. is supported by evidence of Mother's continuing addiction to alcohol and inability to overcome this addiction. The evidence supported no reason to believe Mother would not relapse again if J.T. was returned to her care.
The parental abilities of the individuals seeking custody: Winemiller testified the foster family was "successful in providing the care given [J.T.'s] specific needs." Winemiller testified that CASA believes it is in the best interest of J.T. for Mother's parental rights to be terminated and for him to be adopted by the foster family. The kind of trauma-based therapy that J.T. is in takes a "very long time to see results," and Winemiller testified the foster family has been trained in "trust-based relationship intervention." In response to questioning, Mother testified "incredible" was a "perfect word" to describe the foster family in their interactions with J.T. Mother testified that, at the time of the hearing, she was not "financially stable ready" to have J.T back in her possession, and she did not have a job or a place of her own to live.
The programs available to assist the individuals seeking custody to promote the best interest of the child: Although ordered to do so, Mother did not complete outpatient alcohol services or a psychiatric evaluation. Mother completed services following J.T.'s first removal, and it is unclear why Mother failed to again complete available services after J.T. was removed the second time. In the care of the foster family, J.T. has been receiving therapy, taking medications, and has been re-fitted for orthotics. While Mother knew of J.T.'s diagnosis and need based upon first placement, she did not follow through with therapy or medications and discontinued orthotics.
The plans for the child by the individuals or agency seeking custody: Mother's plan was to have J.T. stay with Mother's seventy-six-year-old Grandmother. A few weeks before the hearing, Chisolm spoke with Grandmother, who said she was moving and "didn't have space for [J.T.] at that time." Grandmother testified she had the ability to care for J.T. and get J.T. to his medical and mental health appointments. Grandmother testified she had not previously requested to have custody of J.T. because "[t]hey didn't approach me to get him." The Department's plan was to place J.T. with the foster family for adoption.
The stability of the home or proposed placement: Mother admitted she was not "financially stable ready" to have J.T back in her possession, and she did not have a job or a place of her own to live. The identified family placement, J.T.'s Grandmother, testified at trial that she had the ability to take care of J.T. but acknowledged the Department had a reason to believe Grandmother's husband committed abuse based on a prior investigation. Grandmother testified that, if J.T. was allowed to live with her, she would "be okay" with rules providing that J.T. could not go anywhere alone with Grandmother's husband. Further, Grandmother testified she "could agree" that she and her husband would never use any form of physical punishment towards J.T.
The parent's acts or omissions which may indicate that the existing parent- child relationship is improper: Chisolm testified that, after becoming Mother's caseworker in February 2023, Mother "was to complete outpatient services as well as complete a psychiatric evaluation and continue on with random drug testing." Chisolm sent Mother for drug testing every week, but Mother only tested twice in February and March, once in April, and not at all in May although she was sent for testing twice. Although Mother needed intensive outpatient treatment, she completed only intake in March and was involuntarily dismissed in April.
Any excuse for the parent's acts or omissions: Mother testified she did not know what medication J.T. was taking and, although she knew J.T. was seeing a therapist, she was not sure what type of therapist because "everybody withholds information" and she did not "know stuff about [her] kids until the day of the court."
In her brief, Mother asserts that the "excuse for [her] lack of sobriety is that she did not have the resources to maintain treatment for her addiction." The record shows, however, that Mother was able to complete services and have J.T. returned to her the first time he was removed. The services were again offered, but not all completed. The record is devoid of evidence to support the excuse in light of the resources that were made available but not completed.
On the record before us, we conclude the evidence is both legally and factually sufficient to establish that termination of the parent-child relationship between Mother and J.T. was in J.T.'s best interest. Tex. Fam. Code § 161.001(b)(2). We overrule Mother's fourth issue.
Fifth Issue: Department as Managing Conservator
In her fifth issue, Mother asserts the evidence is legally and factually insufficient to support the appointment of the Department as managing conservator of J.T. Conservatorship determinations are reviewed for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Therefore, we reverse the trial court's appointment of a managing conservator only if we determine it was arbitrary and unreasonable. Id.
Mother contends that the court's "decision to not name [Grandmother] as conservator of the child was unreasonable." When a parent's parental rights have been terminated, section 161.207 of the family code governs the appointment of a managing conservator. Tex. Fam. Code § 161.207. The trial court appoints "a suitable, competent adult, the Department of Family and Protective Services, or a licensed child-placing agency as managing conservator of the child." Id. § 161.207. Mother presented no evidence that she is "a suitable, competent adult" to become J.T.'s managing conservator. See In re N.T., 474 S.W.3d at 481 (when appellant's challenge to termination is overruled, 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). We conclude the record does not show the trial court abused its discretion by appointing the Department to be the managing conservator of J.T. See In re J.A.J., 243 S.W.3d at 616. We overrule Mother's fifth issue.
We affirm the trial court's judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 30th day of January 2024.