Opinion
02-23-00132-CV
09-07-2023
In the Interest of L.L., R.A., M.A., K.P., and J.P., Children
On Appeal from the 360th District Court Tarrant County, Texas Trial Court No. 360-711112-22
Before Sudderth, C.J.; Bassel and Walker, JJ.
MEMORANDUM OPINION
Dabney Bassel, Justice.
I. Introduction
The trial court terminated Appellant Mother's parental rights to five children: L.L. (Luke), R.A. (Robert), M.A. (Mark), K.P. (Kristen), and J.P. (John) based on four predicate grounds-endangering environment, endangering conduct, failure to comply with her court-ordered service plan, and her use of a controlled substance after completing a court-ordered substance-abuse treatment program-and the children's best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P), (b)(2). The trial court terminated Appellant Carl's parental rights to Kristen and John on the same grounds. See id. The trial court terminated Appellant Kevin's parental rights to Luke, Robert, and Mark based on endangering environment, endangering conduct, constructive abandonment, failure to comply with his court-ordered service plan, and the children's best interest. See id. § 161.001(b)(1)(D), (E), (N), (O), (b)(2).
We use pseudonyms for the names of the children and their family members. See Tex.R.App.P. 9.8(b)(2).
For a trial court to terminate a parent-child relationship, the Department of Family and Protective Services (DFPS) must prove two elements by clear and convincing evidence: (1) that the parent's actions satisfy one ground listed in Family Code Section 161.001(b)(1); and (2) that termination is in the child's best interest. Tex. Fam. Code Ann. § 161.001(b); In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020).
Mother's counsel filed a brief on the merits, raising five points in which she complains that the evidence is legally and factually insufficient to support the trial court's four predicate-conduct findings and its best-interest finding. Because the evidence is legally and factually sufficient to support the endangering-environment and best-interest findings as to Mother, we affirm the trial court's judgment as to Mother without reaching her remaining points. See Tex.R.App.P. 47.1.
Kevin's court-appointed appellate counsel and Carl's court-appointed appellate counsel have each filed a motion to withdraw and brief in support of that motion pursuant to Anders v. California. Because we find no arguable issues to support Kevin's and Carl's appeals other than a judgment-modification matter as to Carl, we modify the trial court's judgment to delete an unpleaded predicate ground as to Carl and affirm the trial court's judgment as modified.
See 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400 (1967); In re KW., No. 02-23-00082-CV, 2023 WL 4289613, at *1 (Tex. App.-Fort Worth June 30, 2023, no pet.) (mem. op.) (applying Anders procedure in parental-rights termination case).
II. Background
Because we resolve Mother's predicate-ground challenges based on the endangering-environment ground, we focus the background on facts relevant to that ground and to the best-interest ground.
At the time of the trial, Mother was still married to Kevin but was thirty weeks' pregnant with her third child with Carl. She wanted to divorce Kevin but could not find him to serve him with divorce papers. Mother first started using methamphetamine with Kevin when she was twenty-one years old. She was in her early thirties at the time of the trial, and methamphetamine remained her drug of choice.
At the beginning of the trial, the trial court adjudicated Carl as the father of Kristen and John.
Mother testified that the last time Kevin saw his children was at least three or four months before DFPS removed them. Kevin appeared at the show-cause hearing but never took a drug test and did not submit to a DNA test to confirm Luke's parentage despite the trial court's order to do so. Kevin never asked to visit the children and did not engage in any services. Luke told the caseworker that he did not want to visit Kevin, and he made an outcry to his counselor that Kevin had abused him.
At the beginning of the case, Mother, Carl, and the five children lived in a trailer on property owned by Carl's grandfather, who supported the family financially. The trailer, which did not have a bathroom or shower, was located behind the house where Carl's grandfather and Carl's mother Vivian lived. Carl stated that the children "always went up front to the main house to use the bathroom and take showers [and] baths."
A. John's failure to thrive
John was born in March 2021, and the trial court admitted into evidence 7,181 pages of his medical records from Cook Children's Medical Center (CCMC).CCMC's gastrointestinal clinic began monitoring John in August 2021 because of his poor weight gain and poor growth.
Many of these records unnecessarily repeated months' worth of medical history. We encourage DFPS in the future to submit only medical records necessary to the case's disposition.
John was seven months old when he was admitted to CCMC from the end of October to early November 2021 because of his persistent weight loss that had left him "[v]ery thin," with "no fat stores," and "ribs protruding." Mother and Carl left John at the hospital after his admission so they could check on Kristen, whom they had left with Vivian, and pick up the other children from school. Before Mother left, the nurse asked her what size diapers John was wearing, and Mother "had to think [for] a minute before answering like she did not know, then, in a guessing tone, answered[,] 'umm size 2?'"
Mother did not have a driver's license and relied on Vivian and Carl for transportation.
The next day, a different nurse followed Mother and Carl to the elevator after she saw them enter and leave John's room very quickly. When she asked them if they wanted to return to John's room for an update on his care, "they looked at each other confused and replied, '[N]ot really[,] we were just wanting to come see what he was doing.'" When the nurse pressed the matter by asking if they wanted to hear from the doctor, they told her, "[N]ot really, we have other kids to get to." The nurse advised them that it would not take long to update them and to answer any of their questions, but they seemed very uninterested "and again looked at each other and answered with a 'no[,] we don't have time.'" The nurse noted that their "total visit during [her] shift was less than 5 minutes." Another nurse noted their reluctance to receive updates on John's condition and that they "seemed very disinterested." John was given a gastronomy tube (also called a G-tube or G-button), which is a tube inserted through the abdomen that delivers nutrition directly to the stomach and is one of the ways that doctors can make sure children with trouble eating can get the fluid and calories they need to grow. In re K.W., No. 02-14-00211-CV, 2014 WL 7335012, at *4 n.4 (Tex. App.-Fort Worth Dec. 23, 2014, no pet.) (per curiam) (mem. op.) (explaining G-tube).
The nursing notes indicate that before John's G-tube placement, nurses twice called Mother and Carl to tell them about it but received no answer either time. In the medical records, Mother was listed as a stay-at-home parent, and Carl was listed as unemployed. When asked how they were coping with the stressors of a medically fragile child and unemployment, Carl replied that the "kids [kept] them happy." CCMC's social worker noted that day, "Overall, when meeting with parents, parents did not engage or appear to comprehend the information" she provided. She noted that the Child Protective Services (CPS) liaison "ha[d] been made aware of concerns" of lack of adequate family and caregiver support and "[p]atient safety . . . upon discharge."
Mother had a ninth-grade education, and the longest she had held a full-time job was a month in 2019, when she had worked at Subway.
CPS is the former administrator of conservatorship services, which includes the foster-care, case-management, and family-reunification services provided by DFPS, a state agency. See Tex. Dep't of Fam. & Protective Servs., Learn about DFPS, https://www.dfps.texas.gov/About_DFPS/default.asp (last visited Aug. 18, 2023); see also In re Tex. Dep't of Fam. & Protective Servs., 660 S.W.3d 248, 256 (Tex. App.-San Antonio 2022, orig. proceeding) (explaining that the legislature delegates authority to DFPS). Our Community Our Kids (OCOK) is one of the contractors that now provides conservatorship services on DFPS's behalf, and an OCOK permanency specialist is the equivalent of a CPS caseworker. See In re D.W., No. 02-22-00478-CV, 2023 WL 3370761, at *1 nn.3-4 (Tex. App.-Fort Worth May 11, 2023, no pet.) (mem. op.) (explaining relationship between DFPS and OCOK); In re M.H., No. 02-22-00048-CV, 2022 WL 2840266, at *5 n.4 (Tex. App.-Fort Worth July 21, 2022, no pet.) (mem. op.) (same); see also Tex. Fam. Code Ann. §§ 264.151-172 (describing and providing requirements for DFPS oversight of community-based-care system for the State of Texas). For purposes of this opinion, OCOK and CPS may be read interchangeably.
John was fed every three hours and started gaining weight while at CCMC. Mother was told by CCMC's physical therapist that John was closer to a three-month-old in terms of his head- and trunk-control developmental skills. Mother took a nap during John's November 3 physical therapy session. John was discharged later that day after medical personnel met with Mother and Carl to explain how to use John's G-tube supplies. According to the notes in John's medical records, Mother and Carl "nodded 'yes' during [the] entire conversation with no questions or concerns regarding managing a feeding tube at home."
When Mother and Carl returned to CCMC with John for his November 17 follow-up appointment, they reported that John had pulled out his G-tube two days before and that they had run out of some of his feeding supplement. Medical staff noted that Mother and Carl's reporting about how much John ate did "not correlate with physical findings" and that Mother and Carl "demonstrate[d] flat affect and poor understanding/lack of concern with [John's] nutrition status/weight loss." Mother and Carl were told to call the clinic if John ran low on formula or his feeding supplement.
John was readmitted to CCMC for two weeks at the beginning of December 2021 for severe malnutrition. His eczema was also noted. After the DFPS case began, Mother disclosed to MHMR that she had been using methamphetamine that month because of John's feeding schedule, stating that "she needed to be able to stay awake to feed him."
On December 3, the same day that CCMC's social worker filed a CPS report about Mother and Carl based on medical neglect, John underwent an esophagogastroduodenoscopy with a biopsy probe. One of the nurses called Mother at 7:15 a.m. to ask her when she would arrive to consent to the procedure. Mother told the nurse that she was dropping the children off at school and would be there within fifteen to twenty minutes, but the surgery team informed the nurse that Mother never arrived.
On December 6, CPS paid a home visit to Mother and Carl. Carl then went to the hospital to see John and voiced concerns to a nurse about CPS's having "showed up" at his house. Carl also spoke with CCMC's social worker and told her that he had come "to the hospital after CPS informed him that there were concerns that [he and Mother were] not involved in [John's] treatment." He explained to the social worker that he and Mother were at CCMC "30-40 minutes randomly" because he had encouraged Mother to stay home with the children while he worked odd jobs. Carl told the social worker that he had consulted an attorney on how to deal with CPS because he had panicked at the thought of John's being taken away.
Lisa Davis, a DFPS investigator, testified that DFPS was contacted in early December 2021 about John's failure to thrive and his weight.
John underwent another surgical procedure on December 9, for a percutaneous endoscopic gastrostomy-tube placement. Mother and Carl asked the nurse if they had to stay the night, and Mother explained that she "ha[d] to go home and make sure her kids got to school in the morning because [Carl wouldn't] wake up and take them." Mother told the nurse that she might come back the next day but would call that morning; however, she did not call until 4:14 p.m. the next day to let the hospital know that she and Carl would be returning "within the next few hours." Mother was informed by phone that CCMC would not discharge John until she and Carl received a G-button education.
On December 13, CCMC's registered dietician met with Mother about John's food allergies. John had milk and soy-protein intolerances, as well as peanut, eggwhite, and wheat allergies. The dietician noted that Mother "verbalized understanding and asked appropriate questions."
The final list of John's diagnoses from that CCMC stay included "unspecified severe protein-calorie malnutrition" and other feeding difficulties, a pediatric body mass index of less than the fifth percentile for his age, eosinophilic esophagitis, and suspected child neglect. His home-care instructions again included feeding every three hours, seven times a day, and CCMC gave Mother four cans of special formula to take home.
Eosinophilic esophagitis is a chronic immune-system disease in which white blood cells (eosinophil) build up in the lining of the esophagus in reaction to foods, allergens, or acid reflux. Mayo Clinic, Eosinophilic Esophagitis, https://www.mayoclinic.org/diseases-conditions/eosinophilic-esophagitis/symptoms-causes/syc-20372197 (last visited Aug. 18, 2023).
Between December 15 and December 28, Mother contacted CCMC twice about the G-button's leaking. The nurse she spoke with educated her about flushing John's feeding tube with a small amount of water to ensure that all his formula left the button and got into his stomach. The reporting nurse stated that Mother "verbalized understanding of all instruction[s]."
DFPS held a family team meeting with CCMC medical staff so that, according to Davis, "everyone was on the same page and had the same understanding of how to help [John] move forward in his weight gain and development." CPS tested Mother and Vivian for drugs via a hair-follicle drug test on December 20, and Carl took a urinalysis drug test on December 22. All three tested positive for methamphetamine in results that CPS obtained in early January.
Davis testified that she thought Vivian had tested negative but that there had been a "concern [about] her being positive [for methamphetamine] on an oral swab." Mother testified that Vivian never took a mouth swab and instead had done a hairstrand test and a urine test. Mother denied having ever seen Vivian use drugs; however, Vivian had a criminal history that included controlled-substance abuse (methamphetamine).
At John's follow-up exam on December 28, he was described as "[v]ery thin-improving," and it was noted that he was "much more alert and active [that day] and his cheeks [were] fuller," although he still had his eczema rash. The medical notes state, "Praise given to [Mother] regarding her documentation of his po/GT feeds and her great job with his care." On December 28, John weighed 5.49 kilograms (12.10 pounds).
In comparison, in August 2021, when he was five months old, John weighed 4.08 kilograms (8.99 pounds).
B. Removal
DFPS removed the children from Mother and Carl on January 5, 2023, after informing them about their positive drug-test results. Davis went to the home Mother shared with Carl to discuss their positive drug tests. Mother's hair-follicle drug test was positive for methamphetamine at a level of 1,972 picograms per milligram-more than three times the 500-picogram threshold-and Carl's urinalysis test was positive for methamphetamine at a level of 1,222 nanograms per milliliter.
See In re A.A., 670 S.W.3d 520, 532 (Tex. 2023) ("DFPS cannot leave a child with a parent whose conduct or home environment would endanger the child; several policy statements in the Family Code make that clear.").
Davis took photos that day of the family's home, its environs, and John. Mother and Carl lived "a backyard apart" on the same property as Vivian and Carl's other relatives. Davis testified that concerns about Vivian as a potential placement involved her "knowledge of where the children were living" and that she had not stepped in "to alleviate those concerns and/or be [a] protective caregiver[] at that time," as well as concerns that she knew about Mother's and Carl's drug use.
Davis's photos showed a travel trailer with a handwritten message on its side, stating, "Please do not knock on this trailer[.] The're [sic] are baby's [sic] allways [sic] asleep in here[.] [I]f you do knock[,] don't get mad if I ignore you or I get an attitude with you[.]" The trailer's front door bears the same message in different handwriting: "Do Not Knock on this trailer[.] We have babies and kids that sleep[.] Don't get mad if we get an attitude if you knock[.]" The trailer's exterior showed two children's bikes and a stroller, as well as "lots of little pieces [and] broken things," including glass and trash.
One of the photos of John showed open sores from eczema on his back, and the other photo showed how thin his body was in relation to his head size. Davis stated that John was smaller than similarly aged babies she had seen and that his head was larger than his body. At the time of his removal that day, Davis said that John "couldn't hold himself up or sit by himself," which she stated was "[v]ery abnormal for a nine-month-old."
The next day, January 6, CCMC took photos of John. The photos show eczema patches on his legs, back, and chest.
Davis took photos of the trailer's interior, which was cluttered and dirty. Before visiting the property, Davis had understood from the initial CPS investigation in December that the children were sleeping in Vivian's home, located in front of the trailer. When Davis saw the messages on the trailer, she realized that the children were likely sleeping in the trailer. This concerned her because of the trailer's size and the conditions inside and outside of the trailer, which she opined would be hazardous for small children, "[o]ne of [whom] was toddling around and could've been injured."
Davis testified that the worker who was initially assigned to the case had looked into the house but, to Davis's knowledge, had not investigated the trailer. Davis said that at the time, it had appeared that the children were being cared for in the house instead of the trailer. Davis said that the family had told CPS that the children were living in the front part of the house, an apparent "misrepresentation of where the children were sleeping."
Davis testified that the trailer's interior had trash and pill bottles "scattered throughout," along with exposed wires, and it had a "self-standing toilet." There was also a child's Pack 'n Play, indicating that a child had been sleeping inside the trailer. The trailer smelled "like dead fish."
Davis stated that DFPS decided to remove the children based on the conditions in which the children were living, the positive drug tests, and the lack of care given to John. After their removal, John, Robert, and Mark tested positive for exposure to drugs. John's hair-follicle test was positive for methamphetamine, at 3,040 picograms per microgram-thirty times the 100-picogram threshold for a positive result. Robert's hair-follicle test was positive for methamphetamine at 670 picograms per milligram, and Mark's hair-follicle test was positive for methamphetamine at 1,277 picograms per milligram. Mark's hair-follicle test also showed positive results for cocaine at 1,773 picograms per milligram.
Kristen had been in a separate foster home at the time, and her foster parent had failed to timely take her for a drug test.
DFPS unsuccessfully tried to contact Kevin when the children were removed. Luke, Robert, and Mark-Kevin's children with Mother-had previously been placed with Kevin's mother, but she did not take them this time, and John's siblings were placed into foster care while John was readmitted to CCMC on January 5 for continued care until a foster placement trained on his G-button became available.
The family had prior CPS involvement in 2019, the same year that Mother and Carl began their relationship. Mother testified that she would not have agreed to a placement with Kevin's mother this time and that she preferred the children to be in foster care than with Kevin's mother.
At the time of his January CCMC admission, John weighed 5.9 kilograms (13 pounds). Mother told CPS that she had doubled the feeding amount that the dietician had recommended, but according to John's medical notes, that did not correlate with John's actual weight. Davis said that John's clothing size at the time of his removal was zero-to-three months.
By January 13, John had gained almost half a pound, and his medical notes indicated that the G-button could be removed if he continued to take all his food by mouth. The medical notes also stated that John was delayed in speech and "grossly delayed in all developmental motor skills."
CPS identified a foster family for John on January 14. John's medical notes indicated that he would need physical therapy "[d]ue to deconditioning and poor muscle tone from neglect (he can't sit up yet)." Medical notes also observed that John had shown overall improvement in weight gain during his hospitalizations despite "his history of development and growth . . . complicated by neglect, malnutrition[,] and exposures to methamphetamine." CCMC had not ruled out the possibility of a genetic disorder but John's medical notes stated that some of John's issues were "related to neglect and drug exposures" and that he was "certainly at risk for on-going problems with development, academic progress, and behavior."
Mother was allowed supervised visits with John at CCMC while CPS sought a foster placement for him.
C. DFPS service plan
At the beginning of the case, DFPS prepared a service plan for each parent to mitigate the reasons why the children were taken into foster care. Mother's service plan required her to stay in contact with her OCOK permanency specialist, Vicki Garza; to establish stable housing that was free from drugs and safety hazards; to obtain employment; to attend John's scheduled medical appointments; to attend weekly supervised visitation with the children; to attend parenting classes; to attend a Focus for Mothers program; to participate in individual counseling; to attend Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings; to develop a relapse prevention plan; to undergo a drug-and-alcohol assessment and follow any ensuing recommendations from the assessment; to undergo random drug tests; to undergo a psychological evaluation; and to provide a list of family and friends in her support system. The trial court also ordered service plans for Kevin and Carl and, on February 18, 2022, it ordered each parent to comply with their service plan requirements.
Mother later testified at the March 2023 trial that she had complied with her service plan, and Garza confirmed that Mother had completed the Focus course, had attended all of John's medical appointments, had attended parenting classes through MHMR's Community Assessment and Treatment Services (CATS), had consistently engaged in individual counseling since August 2022, and had regularly taken drug tests. Garza also acknowledged that Mother and Carl had attended all visits with the children and were bonded with the children.
Mother had not engaged in counseling before August because she had to go on a wait list for a female therapist.
Mother stated at trial that she had provided Garza proof of employment, was still participating in her individual counseling, and had participated twice in CATS- finally completing it in October 2022 after relapsing on August 3, 2022, the day of her first release from CATS. Mother testified that she had not used any drugs since August 3.
Mother testified that she worked from home as a secretary for Carl's family's business. Carl also worked for his family and provided Garza with pay stubs.
During her first round of CATS, Mother received recommendations to attend group therapy twice a week for eight weeks, to attend "parenting" once a week, and to attend Focus for Mothers through CPS (which she was supposed to complete by May 4, 2022, but actually completed July 25, 2022). Mother was also to avoid people that put her sobriety at risk, to find a stable place to live, and to attend at least two virtual NA groups per week.
Mother acknowledged that she had been slow to begin her services.
Mother testified that she was still attending NA meetings and had a sponsor. Garza testified that she did not receive Mother's NA/AA records until the day of trial despite having previously requested them and that Mother had told her that she was not attending NA/AA meetings, causing Garza to be concerned about those records' veracity. Garza did not know if Mother actually had a sponsor.
Mother stated that she discovered she was pregnant at the beginning of October 2022. Garza did not learn about Mother's pregnancy until November, and although she had asked Mother to sign a consent form so that she could speak with Mother's obstetrician, Mother refused to do so. Garza was therefore unable to confirm whether Mother was receiving prenatal care. Garza testified that Mother's refusal to give consent was a problem because in the past, Mother had "some issues about [obtaining] prenatal care."
Mother had not received prenatal care in the third trimester of her pregnancy with John.
Mother testified that she was taking prenatal vitamins and medicine for her gestational diabetes. Her due date was June 6, 2023, and her plan for the unborn child was "[j]ust to do what [she] need[ed] to." She would be the child's primary caretaker, helped "[p]robably" by Vivian. Mother said that she would like Carl to be there too but was not sure if he would be "[b]ecause [he was] not at the house at the moment." She and Carl had not discussed a plan for him to see the newborn, but she was not concerned about Carl's being around the child or his using methamphetamine.
Garza testified that Carl's last drug test-in October 2022-had been positive for methamphetamine. Garza had asked him to take a drug test at least once a month since then, but he had failed to do so. When she asked him to take a hair-strand test, the sample was discarded because it was not sealed correctly, and when she asked him for another, he had already shaved off his hair.
Mother started seeing Deborah Boyles for counseling on August 1, 2022. There had been a gap in Mother's attendance in October, but Mother had attended very regularly after that. Mother's individual counseling had focused on "staying clean [and] figuring out what she need[ed] to do to reunite with her children." Boyles had concerns about Mother's sobriety moving forward after the new child's birth based on Mother's history of staying clean while pregnant but not after giving birth. Boyles had discussed this with Mother, and they had worked on a relapse-prevention plan, so Boyles was "hopeful but concerned." Boyles said that she was concerned "since [post-pregnancy relapse had] happened in the past" and because there were other people in Mother's life who Boyles thought probably used drugs, including Carl.
Garza had the same concern.
Mother stated that she had a relapse plan and identified her plan's support system as her drug counselor, her mother, Vivian, and Carl. Mother was not concerned that Vivian and Carl had both tested positive for methamphetamine at the case's beginning.
Mother gave the following testimony about her understanding of the case:
Q. Can you tell me in your own words why [DFPS] is involved with the other children?
A. Because of my son not gaining weight.
Q. Do you understand [DFPS's] concerns for drug use in the home?
A. Yes.
Q. Do you understand [DFPS's] concerns for the state of your home?
A. Yes.
Q. Can you tell me about what you have done to alleviate that?
A. I have done my CATS program. I completed that. And I'm really scared to start using drugs again, to be honest, because of the Fentanyl. And it's the only drug that people are adding to it.
And I have done -- made additions to the front home and added rooms up front with -- with the kids' beds and room for me to be up front with the children.
Q. And when did you start on those additions to the home?
A. The beginning of this month, I believe.
Q. Okay. So they just started the renovations, correct?
A. Yes.
Q. So as it stands now, when are they going to be completed?
A. They are completed.
Q. Okay. Where will the baby sleep?
A. In the room with me.
Q. Do you have supplies for the child?
A. Yes.
Q. What do you have?
A. I have a bassinet, clothes, and that's about it as of right now.
Q. If the children were returned home to you today, do you think you have a safe home environment for them?
A. Yes.
Q. What does that look like to you?
A. I have beds for them, and I have a very good support system. And I'm not currently using drugs, and I will not go back to that because I love my children, and I don't want to put them at risk.
Q. Would you allow [Carl] around your children if they were returned to you today?
A. No.
Q. Why not?
A. Because I understand that he hasn't worked his services and hasn't done a drug test. Q. Okay. Are you concerned he's still using methamphetamines?
A. No.
Mother testified that two bedrooms and an office were added to Carl's family's home. One of the new bedrooms would be Kristen's and the other would be for the four boys; Mother would sleep in the office. Mother stated that the rooms were finished. Mother stated that the trailer where they had lived had been removed from the property a week before trial because they had "realized it was unsuitable for the children to be in."
When Garza, the OCOK permanency specialist, visited Carl's family's home on March 23, 2023-eight days before trial-the additions were under construction, but she had not been able to confirm whether they had completed the additions. When she visited the home again before trial resumed on April 19, 2023, both rooms were partially finished. Garza agreed that upon completion, the space would be suitable for the children. The children's ad litem attorney visited Vivian's home on April 12, 2023, and took photos of the additions. The photos showed that the drywall was installed in part of the addition, but an exterior wall was missing and some of the wiring was still exposed.
Garza testified that the service plan was not just a checklist but rather a plan designed to mitigate the reasons why the children were taken into foster care and to demonstrate behavioral changes. Although Mother had substantially completed her service plan, Garza said that her efforts were insufficient for the children's return because Mother had not been able "to definitively give [Garza] a concrete plan as to how she plan[ned] to make it on her own with five children as well as keeping [Carl] from . . . being around the children if he continue[d] to show that he ha[d] not taken care of the issues." Garza stated that she had done everything she could to engage Mother and Carl and repair the problems that had caused the children to be taken into foster care.
D. Methamphetamine
Mother testified that her only criminal history involved methamphetamine and some marijuana that was not hers. In 2018, she was charged with possession of drug paraphernalia and marijuana and received probation. In 2018, Luke would have been nine years old, Robert would have been five years old, and Mark would have been four years old. Kristen was born in 2020, and John was born in 2021. Mother did not believe that she was an addict "[b]ecause [she had] quit every time [she] got pregnant," and she had been pregnant "at least ten" times.
Mother agreed that she had falsely testified that she did not use drugs when she cared for the children, but she denied that she had used drugs around the children. Mother claimed that she had used methamphetamine with her old friends at their house and denied having known that Carl was using methamphetamine. She claimed that she had never asked Carl about it or talked with him about the fact that she was using drugs.
Mother stated that she had learned in CATS that one of methamphetamine's side effects included death, and she did not want to die and have her children lose their mother. Mother gave the following testimony about her drug use's effects on her children:
Q. How has your drug use affected your children?
A. They were removed from my care, and my son was not gaining weight.
Q. How has it affected your children?
A. They don't have their mother right now.
Q. Well, isn't it true it's about how you feel and what you need? It's not about what your kids want, right?
A. Yes.
Q. And a side effect of methamphetamine use, that you're not hungry and you don't eat?
A. Correct.
Q. And you're aware that your children tested positive for methamphetamine and [one] also tested positive for cocaine. Can you explain that?
A. No.
Mother agreed that she had said that she used methamphetamine to stay awake during John's feeding schedule, but she denied that her drug use had anything to do with John's failure to thrive. Mother denied that she had told the children that CPS was lying and that she did not use drugs.
The trial court admitted into evidence Mother's drug-test results from May 2022 and September 2022. Mother's hair sample was collected on May 24, 2022, and tested positive for methamphetamine at 1,728 picograms per milligram. Mother's urine sample was collected on August 29, 2022, and tested positive for methamphetamine at a level greater than 10,000 nanograms per milliliter. Mother's hair-strand drug test, which showed drug usage over a three-month window, showed a positive result in October 2022 because of her August 3 relapse. See In re A.I., No. 02-22-00176-CV, 2022 WL 4374636, at *2 (Tex. App.-Fort Worth Sept. 22, 2022, pets. denied) (mem. op.) (noting that a hair-strand drug test "goes back three months").
Garza agreed that Mother had tested negative for drugs since November 2022, meaning that Mother had been sober for eight months by the time of the trial. She nonetheless opined that it would be dangerous to return the children to Mother because Carl was still showing that he might be using drugs and because DFPS did not know what effect the new baby's birth would have on Mother's sobriety.
E. Mother, Carl, and Carl's family
Mother testified at trial that she was living in Vivian's house and that Carl was staying in a hotel. Carl, who hauled cars to junk yards for his family's company, stated at trial that he had stopped going to Vivian's house to get his job assignments around a month and a half before, when he started staying at a hotel. Carl testified that he was willing to commit to not visiting Vivian's home if it meant Mother could raise the children in that home. Boyles, Mother's counselor, stated that Carl's family was Mother's main option for housing.
Garza said that she had not known before the first day of trial that Mother and Carl had moved out of the trailer or that Mother was not staying at the hotel with Carl. On Garza's last visit to the trailer, Mother and Carl told her that they had done some cleaning, but she could not tell-the trailer was still very dirty, had exposed wires, did not have a working bathroom, and was surrounded by broken things. Garza stated that she did not find Mother's testimony about living apart from Carl credible because the separation happened "all of a sudden" after Garza had asked for a plan from Mother because Carl was not working his services. Boyles stated that Mother had never told her that she and Carl were no longer living together.
Mother's counsel engaged in the following dialogue with Garza:
Q.... [W]ould some of your concerns be satisfied with a written signed statement from [Vivian] that [Mother is] welcome to stay there with the children even if [Carl] doesn't return? Would that make you a little more sure with that placement being an option?
A. Not really.
Q. Okay. What if she were on government assistance, would that calm some of your concerns?
A. It would demonstrate she had a place, but she still hasn't given me a plan as to how she's going to do that.
Q. If she's not capable of formulating a plan and giving it to you, is that reason to terminate her rights?
A. I think she's capable of giving me a plan as to how she's going to take care of her children.
Q. Okay. But the concern is whether or not she's going to rely on [Carl], whether or not he's going to be in the home, and whether or not she can take care of her five kids; those are your primary concerns?
A. And the drug use after the pregnancy.
Q. Okay. If indeed, presuming that the addition to the home is appropriate and between now and when we come back, would you be able to have time to lay eyes on it yourself to see if it's appropriate to accommodate the children? Is that something you would have time to do in the next -
A. I can't say.
Q. Okay. Is there anything that my client could do to calm your concerns about what she might do in the future?
A. Not at this moment, no.
Mother said that she had not spoken with Carl about why he was staying in a hotel, and he had not told her why. She understood that DFPS was concerned about Carl's not working his services or taking drug tests because these omissions could make him a risk to her or the unborn child. She nonetheless opined that Carl was a good influence to be around the children and denied that he was a trigger for her methamphetamine use or that she had ever used methamphetamine with him. Mother was not worried about Carl's potentially exposing her unborn child to methamphetamine because he had "[not] been at the house in a while." Garza expressed concern that if the children were returned, Mother and Carl would reunite without addressing Carl's issues.
Mother stated that she was engaged to Carl and planned to marry him as soon as she could divorce Kevin. But she also stated that she was willing to raise the children without Carl in their lives if he did not make changes and that Vivian would continue to support her even if Carl could not be part of that family. Mother denied that her employment with Carl's family would be at risk if she chose the children over Carl. Mother hoped that Carl would work his services and get to come home, but she stated that if she had to choose between Carl and the children, she would choose the children. Mother also stated that she was looking at going to school and getting another job so that she could get her own place.
Carl testified that he had not completed his service plan and had not taken a drug test since October 2022. He agreed that Mother had a better chance than he to keep her parental rights because she had completed her services and had taken all her drug tests. He opined that Mother could raise the children and survive without his being around and that she loved the children enough to stay sober and parent all five-soon to be six-children without him. When asked, "Do you love [the children] enough to understand they should be home with their mama if all it takes is you disappearing," Carl replied, "Yes," and stated that he was willing to make that commitment.
During cross-examination, Carl denied using methamphetamine, having a drug problem, or having ever pleaded guilty in exchange for deferred adjudication in a methamphetamine case. He was, however, aware of Vivian's methamphetamine convictions and understood DFPS's concerns.
Carl opined that it would be in the children's best interest to be home with family. He noted that John had made a lot of strides once his food allergies were identified, and he stated that Kristen "just had anxiety from when they got took" by DFPS and had never had any problems when she lived with him and Mother. He acknowledged that Kristen had to stay in the neonatal intensive care unit (NICU) for a couple of days after her birth but did not know why. He denied having seen that some of the children had tested positive for methamphetamine and one for cocaine. When asked if he thought testing positive for drugs would have an impact on the children's development, Carl replied, "Yeah, if it was really like that. But [John] was given some peanut oil for three months, so how [is he] supposed to say that was anything other than that?" Carl said he was unaware of any prior drug use by Mother.
When asked whether Mother had told her that she did not plan to see Carl after the baby was born despite living with Carl's family, Mother's counselor Boyles replied, "[W]e talked about how that would possibly work if that was going to be an option and how difficult it would be since she lives with his family members, but that's just been recently," i.e., within the two weeks before trial. Boyles agreed that it concerned her that Mother had waited until two weeks before trial to make new plans.
Boyles said that Mother's lack of communication with Carl concerned her in that when asked whether she believed he used drugs, Mother said she did not know and had not asked him and when Boyles asked Mother about their plans for the future, Mother told her that she and Carl had not talked about it. When asked, "Do you believe [Mother] had no knowledge of [Carl's] use of methamphetamine," Boyles replied, "It's hard to believe that," but added that she did not know.
Boyles's concerns about the children's potential return to Mother included "the lack of things that [she saw] as pretty necessary, like [Mother's] own transportation and her own things that [didn't] all come from [Carl's] family," including her job. She opined that Mother was capable of following a court order, but she worried about what would happen if Mother were ordered not to have contact with Carl both because Mother was financially dependent upon him and because she was unwilling to separate from him.
F. Mother's parenting skills
Mother testified that the children should be returned to her because she loved them, was a good mother, and had "made a mistake" by "choosing drugs over [them]." When asked whether she believed her children could be happy away from her, Mother said, "no." She explained that the children loved her and had told her that they wanted to come home. Mother acknowledged that it was her fault that the children were in foster care.
Garza had observed over thirty-six parent-child visits during the case. She agreed that the medical notes from John's hospital stays about how Mother and Carl had needed prompts to care for and attend to John were demonstrative of how the visits went. Mother and Carl had not provided the children with any necessities during the case beyond snacks from McDonald's or Sonic that they brought to the visits. Garza had asked Mother and Carl not to bring in food and to instead allow the foster parent to supply it because she knew exactly what John could and could not eat. Regarding John's food allergies, Garza had referred Mother and Carl to WIC videos that address children's food allergies, but as far as she knew, they had never watched them. Garza agreed that it would be difficult for anyone to parent five children and that a controlled-substance dependency would make it even more difficult to safely parent that many children.
WIC is the abbreviation for the U.S. Department of Agriculture's supplemental nutrition program for women, infants, and children. See U.S. Dep't of Agriculture, Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), https://www.fns.usda.gov/wic (last visited Aug. 18, 2023).
Boyles, Mother's counselor, opined that Mother loved the children but expressed concern about Mother's ability to handle all five children because "she ha[d] never lived with all of the children with her." Boyles stated that adding a new baby to the mix "would be pretty overwhelming for anyone," and opined that it would be overwhelming for Mother. Boyles said that Mother's mother had helped her with the older children and that Mother was very close with Vivian, who usually brought her to her counseling appointments.
Boyles opined that Mother was in denial about some things, including the negative impact that her drug use and the subsequent removal had had on the children, and that Mother sometimes lacked parenting skills, although Boyles had tried to work with Mother on that. She stated that she thought their work had "[s]ometimes" been successful. Boyles stated that she had addressed with Mother that if the children were returned and she relapsed again, "how very likely [it was that] the kids would be removed again and how difficult it would be to ever get them back."
Boyles said that Mother had been the most honest with her in their counseling sessions after her August 2022 relapse but that Mother's progress had stalled since then, and she was concerned that some of Mother's changes were superficial. Boyles stated that sometimes she did not think Mother told her the whole truth.
Boyles agreed that Mother had acknowledged that it was her fault that the children were in foster care but said that she did not think Mother had held herself accountable to the children. Boyles said that Mother had not considered that the children's return to her might not be in their best interest and that it seemed to her that Mother thought that what she wanted was the same thing as the children's best interest. Boyles said that she had counseled Mother on putting the children's needs over her own.
Boyles also said that she had counseled Mother on trauma and children, particularly regarding separation, and that Mother understood, at least in part, what the children were going through in that the children were afraid for the future and had separation anxiety and worry. When asked, "Do you believe [Mother] would be able to provide for [the] needs [of five children who] have experienced trauma in the ways hers ha[ve]?" Boyles replied, "It certainly would be a tall order. It would be difficult."
Garza recommended terminating Mother's (and Carl's) parental rights because, although they had over a year to do so, they had failed to show they have "a safe and secure home that is free of drugs [and] that is clean with the essentials that they need in the home" and because the children deserved a safe, secure, drug-free home.Garza was concerned about the safety of the unborn child in addition to the safety of Luke, Robert, Mark, Kristen, and John if they were returned to Mother because she had not shown demonstrable behavioral changes or that she would stay away from Carl. Garza noted that although both Kristen and John had occupational and speech therapy, neither Mother nor Carl had looked into continuing those services if the children were returned.
Garza recommended terminating Kevin's parental rights because he had constructively abandoned the children.
The children's ad litem attorney concluded that Mother did not appear to be able to provide for the children's developmental, social, and emotional needs. She noted that Mother had failed to acknowledge the children's prior trauma and how that had affected their development and that returning the children to the site of their removal was likely to re-traumatize them. She stated,
The children were severely physically neglected, and all parents have failed them and continue to acknowledge their lack of care and the deplorable conditions in which the children ha[d] been placed.... To return the children to [the] same environment and surroundings from which they were removed would be an injustice to the children and would significantly impair their physical and emotional well-being.
G. Luke, Robert, Mark, Kristen, and John
From January 5 to March 4, 2022, the children were not in the same foster placement. They were reunited in the same foster home on March 4, but that home was not adoption motivated.
The children's ad litem attorney had completed an independent investigation that included interviewing the children (age appropriately), the foster parents, Garza, Mother, and Carl. She had observed the children in their foster placement and during parent-child visits; met with the three older children privately throughout the case; attempted to identify safe and appropriate family or other adults with whom the children had a previous positive relationship; reviewed all court filings and documentation from the parents' service providers; participated in the service-plan meetings for the children and reviewed the children's medical, dental, and psychological records throughout the case's duration; monitored the children's progress through their therapy notes and through observations and conversations with the children and their caregivers; and made a home visit to observe Mother's then-current living conditions, to discuss her plans if the children were returned to her, and to interview Vivian and Carl's other relatives at the residence.
The ad litem attorney noted, "None of the children that are verbal are able to name a safe person should they be returned to their mom and not provided for who they can turn to for help. That is very concerning."
The ad litem attorney stated in her report that "more than the children want to be with their mom, they want to be assured that they are going to be cared for, provided for, and not ever removed and placed in a foster home."
1. Luke
Thirteen-year-old Luke had a composite IQ of 131, made straight As in school, and wanted to become a mechanic. Mother described him as "a great big brother to all his siblings," said that he "love[d] to help anybody and everybody," and said his favorite colors were blue and green.
"IQ" or "intelligence quotient" testing is "a significant factor in making both the legal and clinical assessment of intelligence or intellectual functioning." In re A.G., No. 02-21-00297-CV, 2022 WL 488924, at *1 n.2 (Tex. App.-Fort Worth Feb. 17, 2022, pet. denied) (mem. op.). An IQ of 100 "is the average IQ score of youths nationwide, ranging mostly from 85 to 115." Id.
The children's ad litem attorney noted her ongoing concerns for Luke's "worries, guilt, self-criticalness, and self-worth," although those had not seemed to interfere with his ability to excel. Luke had made strides in therapy and was starting to feel worthy of good things and to recognize the importance of a safe and stable environment. He wanted to continue therapy and to develop the ability to appropriately process his feelings. The ad litem attorney stated,
[Luke] loves his mother dearly and tends to worry about her mental and physical well-being more than his own. He carries a heavy burden on the events surrounding the removal and has excessively worried about his mother if the children aren't returned to her. It is important for [Luke] that [Mother] accept[] responsibility for the conditions the children were removed from and to provide assurance that [Luke] is not at any fault.
At trial, the ad litem attorney testified that Luke "really, really, really want[ed] to be with his family but [was] unwilling to return to the environment from which he was removed." She opined that at that time, Mother could not provide Luke with what he needed. She described the home visit she had conducted in April the week before trial resumed and stated,
The conditions of the home would not allow any of the children to continue to grow and to flourish. And after I went to the home, I had a visit with [Luke] about the home environment at the time of removal.
He was able to describe some of the things that occurred during that time....
[Luke's] concern of being properly cared for and loved by his mother is tremendous. And while he wants nothing more than to be with his mom, he cannot go through another removal or be exposed to drug use any longer. And he wants to be cared for and his needs to be met.
2. Robert
Mother described nine-year-old Robert as "a sweet, loving young boy" who loved his siblings.
During Robert's CCMC interview, he stated that he was "a little sad" about being in foster care because he missed his family but that the foster family was nice to him, and he felt safe. He had also felt safe in the family's trailer but noted that "sometimes they did not have enough food." Robert reported that during that time, he had eaten two to three meals a day but "was still a little hungry" and that none of the older children had a bed. Robert also said that Luke would "bop" him on the back of the head with an open hand every time Robert made him mad.
Robert's and Mark's medical records were admitted into evidence.
Robert also described Mother's and Carl's smoking outside the trailer in the morning, napping at mid-day, and then waking up and feeding the children. He recounted that they never took him to see a doctor and that he only went to the dentist when he needed to and stated that he had a bottom tooth that bled on each side when he brushed his teeth and a "nervous tooth" on the bottom right side that was painful with brushing. Robert explained that "a nervous tooth means it's scared."
The ad litem attorney noted in her report that Robert, a third grader, liked group activities at school and church, had struggled academically and behaviorally, and had improved tremendously during the case. He was initially hyperactive, had issues with lying and manipulation, and lacked many basic social skills. Robert had repeated the first grade. His IQ was below average, and he appeared to be a slow learner although he had worked very hard to catch up academically-since February 2022, his reading ability had increased from kindergarten to first-grade level, and his math ability had increased from second-grade to third-grade level. The foster mother had worked with him to improve his grades. Robert had been prescribed medication for his ADHD, which helped him learn and process things better, and he reported that it also helped him to be less angry.
The ad litem attorney stated that Robert's knowledge of drug use and drug paraphernalia was beyond what a child his age should know. Robert had continuously reported that Mother and Carl had promised him that they had quit using drugs. She stated,
[Robert] is bonded to his mother and [Carl] and misses his family. However, [Robert] is also very adamant about his desire to be in a safe environment and not be[] exposed to drugs or people that are on drugs. He wants his family to reside together in a clean and safe home and wants to be able to go to school, not get grounded, and eat until his belly is full.
During trial, the ad litem attorney noted that Robert just wanted to be a "normal kid."
3. Mark
Mother described eight-year-old Mark, who-like Robert-was a third grader, as "loving and caring for his siblings."
Mark's foster mother told the hospital staff that Mark did not know how to tie his shoes, that she was concerned that he might be delayed in reading, and that it was "very obvious" that he and Robert "ha[d] not been brushing their teeth for a very long time." The ad litem attorney reported that when Mark was removed, he was unable to sit still and could not perform basic hygiene tasks.
Mark was interviewed by the hospital staff and told them that he felt safe and happy in the foster home and that before the removal, he had lived with Mother, Carl, and his siblings in the trailer. Mark told the hospital staff that he did not like living in the trailer, but he "was not able to say why." When he lived with his family, he ate two meals a day and slept on a bed with two of his siblings. He noted that Luke was "mean" to Robert but "not really" mean to any of the other children in the home.
The ad litem attorney reported that Mark enjoyed therapy and had worked on processing his emotions and working through anxiety. He had been placed on ADHD medication, and it appeared to be helping with his anxiety and recall. The ad litem described Mark as a "well-adjusted and generally happy child" who had been behind academically but had worked very hard to catch up. She noted that Mark "was the only verbal child that initially reported he did not like living in the home at the time of the removal," and he did not share the same anxiety over Mother's well-being as the two older children. The ad litem observed, "While [Mark] loves his mother, the two of them do not appear to share the same bond as has been observed with [Luke] or the younger children."
At trial, the ad litem attorney stated that there was an extremely strong bond between Mark and Robert. She also described Mark as "one of the most caring and funny boys that [she had] had the responsibility and privilege to get to represent." And she noted that Mark reported that he did not want to return to his home environment although he wanted to be reunited with his family and to be safe.
4. Kristen
At trial, Mother described three-year-old Kristen as "a daddy's girl." The ad litem attorney described Kristen as timid but "able to command the attention of her big brothers." At birth, Kristen weighed nine pounds and her meconium tested positive for drugs. Kristen's problems at birth included hypoglycemia, congenital syphilis, and jaundice, and she had to have spinal fluid drained and was briefly placed into the NICU for care and monitoring.
Meconium is an infant's earliest stool. In re G.Z., No. 02-21-00122-CV, 2021 WL 3796049, at *1 n.6 (Tex. App.-Fort Worth Aug. 26, 2021, no pet.) (mem. op.).
Kristen's motor skills were very delayed, and she received occupational and speech therapy in foster care. The ad litem attorney noted, "[Kristen] is unable to express her wishes and desires but appears to be happy in her current placement where it appears that all of her social, developmental, and medical needs are being met." Kristen had an appointment scheduled with an ear-nose-and-throat doctor to determine if she needed treatment for fluid in her ears.
At trial, the ad litem attorney described Kristen as having been delayed since birth from Mother's drug use at the beginning of pregnancy. The ad litem noted, "The occupational therapist is concerned that there's a disconnect from [Kristen's] brain and movement from her not being allowed to move and wiggle around prior to her coming into care." She also noted that although Kristen could not express her desires, she had seen Mother and Carl be attentive to Kristen's needs and Kristen's being excited during visits, although Kristen was able to leave visits without becoming emotional.
Garza testified that at the time of removal, Kristen "had delays in speech and [was] not able to do certain things that a two-year-old would be normally able to do."
5. John
Mother described two-year-old John as "very sweet and loving." She noted that he had "some food allergies" and that he was receiving physical and speech therapy, and she stated that, as far as she knew, he was doing well in his therapies.
Garza testified that between John's removal on January 5, 2022, and the contested show-cause hearing on February 8, John had gained approximately six pounds in foster care. The ad litem attorney stated in her report that John weighed 7 pounds, 14.6 ounces at birth. When he was removed in January 2022, ten months later, he weighed roughly 10.5 pounds. While in foster care, John received physical and speech therapy because, due to his failure to thrive, he was extremely behind.
The ad litem attorney stated that John was under the care of an allergist, a gastrointestinal specialist, and a dermatologist, and he had a scheduled appointment with an ear-nose-and-throat specialist because of recurrent ear infections. He was receiving occupational and speech therapy but appeared to be meeting milestones appropriately, and his social, developmental, and medical needs were being met in foster care. He was bonded with his then-current caregivers and with his siblings. At trial, the ad litem noted that John's motor skills far exceeded Kristen's and that his food allergies were under control. At visits, he interacted well with Mother and Carl and his siblings, and he was excited to see his parents.
III. Discussion
We begin our discussion with the Anders briefs filed by Carl's and Kevin's attorneys before addressing the merits of Mother's appeal.
A. Anders
Appointed counsel for Carl and appointed counsel for Kevin have each filed a brief asserting that the respective fathers' appeals are frivolous. Each brief has met the Anders requirement of presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to advance on appeal. See K.W., 2023 WL 4289613, at *1. We provided each father the opportunity to obtain a copy of the appellate record and to file a pro se response, but neither has done so. DFPS has filed a letter as to each father stating that it agrees that neither has "meritorious grounds upon which to advance an appeal" and that it will not file a brief as to either father.
When an Anders brief is filed, we must independently examine the appellate record to determine if any arguable grounds for appeal exist. In re C.J., No. 02-18-00219-CV, 2018 WL 4496240, at *1 (Tex. App.-Fort Worth Sept. 20, 2018, no pet.) (mem. op.); see Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We also consider the Anders brief itself and-if filed-any pro se response. In re K.M., No. 02-18-00073-CV, 2018 WL 3288591, at *10 (Tex. App.-Fort Worth July 5, 2018, pet. denied) (mem. op.).
We have carefully reviewed the Anders briefs filed by Carl's and Kevin's appointed appellate counsel and the appellate record. Having found no reversible error, we agree with counsel that Carl's appeal and Kevin's appeal are without merit. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005); In re D.D., 279 S.W.3d 849, 850 (Tex. App.-Dallas 2009, pet. denied).
However, we note that the record reflects that DFPS sought in its original petition to terminate Carl's parental rights on the following predicate grounds under Section 161.001(b)(1)-(D), (E), (K), (L), (M), (N), (O), and (Q)-but not (P). The trial court nonetheless ordered Carl's parental rights terminated under Subsections (D), (E), (O), and (P).
The party seeking termination must have pleaded the conduct ground that the factfinder found. In re J.R.S., 232 S.W.3d 278, 285 (Tex. App.-Fort Worth 2007, no pet.); Vasquez v. Tex. Dep't of Protective &Regul. Servs., 190 S.W.3d 189, 194 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). Because DFPS did not plead Subsection (P), the trial court could not terminate Carl's parental rights on that basis. Accordingly, we delete the trial court's Subsection (P) finding as to Carl but otherwise affirm the trial court's judgment of termination as to both fathers.
B. Sufficiency
Mother challenges the legal and factual sufficiency to support the trial court's Section 161.001(b)(1) and best-interest findings.
1. Legal and factual sufficiency standards of review
To determine whether the evidence is legally sufficient in parental-rights-termination cases, we look at all the evidence in the light most favorable to the challenged finding to determine whether a reasonable factfinder could form a firm belief or conviction that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences, but they must be reasonable and logical. Id. We assume that the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved, and we consider undisputed evidence even if it is contrary to the finding. Id.; In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). That is, we consider evidence favorable to the finding if a reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The factfinder is the sole judge of the witnesses' credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
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 498, 500 (Tex. 2014). Nevertheless, we give due deference to the factfinder's findings and do not supplant the judgment with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide whether a factfinder could reasonably form a firm conviction or belief that DFPS proved at least one of the substantive Section 161.001(b)(1) grounds that it alleged and that the termination of the parent-child relationship would be in the children's best interest. Tex. Fam. Code Ann. § 161.001(b)(1) (D), (E), (O), (P), (2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm conviction or belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18-19.
When, as here, a parent challenges a Subsection (D) or (E) finding, due process and due course of law demand that we address the finding and detail our analysis because Subsection (M) allows a trial court to terminate the parental rights of a parent whose parent-child relationship with another child was terminated based on a finding under (D) or (E). In re N.G., 577 S.W.3d 230, 235, 237 (Tex. 2019); see also In re C.W., 586 S.W.3d 405, 406-07 (Tex. 2019) (relying on N.G. and holding same); see In re Z.M.M., 577 S.W.3d 541, 543 (Tex. 2019) (relying on N.G. to hold that the court of appeals erred by not addressing the father's sufficiency challenge to the trial court's Subsection (D) finding).
2. Endangerment
"'[E]ndanger' means to expose to loss or injury" or "to jeopardize." In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021) (quoting Tex. Dep't of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). Under Subsection (D), the trial court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has "knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional wellbeing of the child." Tex. Fam. Code Ann. § 161.001(b)(1)(D).
Under Subsection (D), we must examine evidence related to the children's environment to determine if the environment was the source of endangerment to the children's physical or emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.-Fort Worth 2003, no pet.). The logical timeframe for an environment-based endangerment finding under Subsection (D) is before the children's removal. In re A.P., No. 02-22-00180-CV, 2022 WL 16646478, at *7 (Tex. App.-Fort Worth Nov. 3, 2022, no pet.) (mem. op.). The environment must create a potential for danger that the parent is aware of but consciously disregards. In re A.S., No. 02-19-00422-CV, 2020 WL 990028, at *4 (Tex. App.-Fort Worth Mar. 2, 2020, no pet.) (mem. op.).
A parent's conduct in the home-such as illegal drug use-can create an environment that endangers a child's physical and emotional well-being. J.T.G., 121 S.W.3d at 125; see In re Y.W., No. 02-22-00334-CV, 2022 WL 17841830, at *5 (Tex. App.-Fort Worth Dec. 22, 2022, no pet.) (mem. op.). "A parent need not know for certain that the child is in an endangering environment: awareness of such a potential is sufficient." In re A.M, No. 02-19-00023-CV, 2019 WL 3334420, at *8 (Tex. App.- Fort Worth July 25, 2019, no pet.) (mem. op.); see A.A., 670 S.W.3d at 530 (noting that "a parent's methamphetamine use surely poses 'an immediate danger to the physical health or safety of [a] child' within the meaning of Chapter 262"). Further, parental neglect can be as dangerous to a child's well-being as direct abuse, and allowing a child to live in unsanitary conditions supports an endangerment finding. In re M.T., No. 02-22-00111-CV, 2022 WL 2353095, at *5 (Tex. App.-Fort Worth June 30, 2022, no pet.) (mem. op.). Subsection (D) permits termination based upon a single act or omission. In re M.G., No. 02-23-00074-CV, 2023 WL 4008687, at *6 (Tex. App.-Fort Worth June 15, 2023, no pet. h.) (mem. op.).
Mother contends that DFPS presented "little to no evidence" to support either endangerment ground although she concedes that DFPS "was able to show that she had used a controlled substance in a manner that endangered the health or safety of the children." She argues that while DFPS showed that the condition of her home was undesirable, it "failed to show how the child[ren]'s living conditions posed a real threat of injury or harm to the children." DFPS directs us to evidence of the neglectful environment in which Mother had allowed the children to live before their removal.
The record reflects that by the January 5, 2022 removal date, Mother, Carl, and Carl's mother Vivian-all the children's caregivers-had tested positive for methamphetamine. Mother had a ten-year on-and-off history of methamphetamine use. Carl denied using methamphetamine or having a methamphetamine problem, and he denied knowing about Mother's drug use. However, he acknowledged that he was aware of his mother Vivian's methamphetamine convictions; Mother claimed that she was unaware of Vivian's drug use.
John, Robert, and Mark tested positive for methamphetamine after their removal, and Mark also tested positive for cocaine, but Mother could not explain their positive test results. She acknowledged that she used drugs when she cared for the children-specifically, to stay awake during John's every-three-hour feeding schedule-but she denied that she had used drugs around the children.
The two youngest children-John and Kristen-were both developmentally delayed, and John's development and growth were complicated by neglect, malnutrition, and exposure to methamphetamine. However, Mother denied that John's failure to thrive had anything to do with her drug use.
Mother denied having known that Carl was using methamphetamine, and she denied that Carl was a trigger for her methamphetamine use or that she had ever used methamphetamine with him. When Boyles was asked whether she believed that Mother had not known Carl was using methamphetamine, she replied, "It's hard to believe that," but she added that she did not know. Mother, who was pregnant by the time of the trial, testified that she did not believe that she was a drug addict because she had quit using drugs every time she became pregnant, which had been "at least ten" times.
At the time of the removal, all the children had been living with Mother and Carl behind Vivian's home in a dilapidated and dirty trailer surrounded by broken glass and trash despite having told CPS that some of the children were living in Vivian's home. The trailer lacked a functioning bathroom-although inside the trailer was a nonfunctional self-standing toilet-and the conditions inside the trailer were hazardous to children because of trash and pill bottles scattered throughout, in addition to exposed wires.
Luke, the eldest child, told the ad litem attorney that all he wanted was for Mother to be able to take care of him. Robert reported to CCMC staff that when they lived in the trailer, sometimes they did not have enough food, and that none of the children had a bed. Mark confirmed that when they lived in the trailer, he ate only two meals a day.
Robert also reported that both Mother and Carl smoked outside of the trailer in the morning, napped at mid-day, and then woke up and fed the children. The ad litem attorney noted that Robert's knowledge of drug use and drug paraphernalia was beyond what a child his age should know. Mother and Carl did not take care of Robert's medical or dental needs or help Mark and Robert with their academic and behavioral struggles that improved upon their placement into foster care. At the time of removal, Mark, the eight-year-old middle child, did not know how to tie his shoes and could not perform basic hygiene tasks.
Three-year-old Kristen's meconium had tested positive at birth for drugs and her motor skills were very delayed. She was unable to express her wishes or do other things that a child her age would normally be able to do. Kristen's occupational therapist was concerned that Kristen had a disconnect between her brain and movement "from her not being allowed to move and wiggle around prior to her coming into care." After the removal, John's motor skills began to exceed Kristen's once his food allergies were brought under control, and he started gaining weight and recovering from his failure to thrive. The ad litem attorney reiterated that before the children's removal, they had been "severely physically neglected" and had been in "deplorable conditions."
Viewed in the light most favorable to the endangering-environment finding, we conclude that a reasonable factfinder could form a firm belief or conviction that Mother had knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being before their removal from her on January 5, 2022. See Z.N., 602 S.W.3d at 545; see also Tex. Fam. Code Ann. § 161.001(b)(1)(D); In re R.A.B., No. 08-22-00247-CV, 2023 WL 3672050, at *7 (Tex. App.-El Paso May 25, 2023, pet. filed) (mem. op.) (holding endangering-environment evidence legally sufficient when children tested positive for methamphetamine and, at removal, had lice in their hair, had missed several immunizations, and had multiple dental cavities). Accordingly, the evidence is legally sufficient to support the trial court's endangering-environment finding.
Further, based on our review of the entire record, and giving due deference to the factfinder's findings, the trial court could have reasonably formed the same firm conviction or belief about the children's endangering environment, particularly considering the medical records that showed Mother's lack of concern while under the influence of drugs in December 2021, just a few weeks before the children's removal but after CPS became involved with the family. See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 18-19. Accordingly, the evidence is factually sufficient to support the trial court's endangering-environment finding. We overrule the portion of Mother's first and second points that challenge the endangering-environment finding and do not reach the portion of her first and second points challenging the endangering-conduct finding or her third or fourth points. See Tex.R.App.P. 47.1; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (stating that a finding of only one ground alleged under Section 161.001(b)(1) is sufficient to support termination); see also N.G., 577 S.W.3d at 235, 237 (requiring court to address a challenged Subsection (D) or (E) finding).
3. Best interest
Although we generally presume that keeping a child with a parent is in the child's best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest analysis is child-centered, focusing on the child's well-being, safety, and development, In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In determining whether evidence is sufficient to support a best-interest finding, we review the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Evidence probative of a child's best interest may be the same evidence that is probative of a Subsection (b)(1) ground. Id. at 249; C.H., 89 S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the evidence in light of nonexclusive factors that the factfinder may apply in determining the child's best interest:
(A) the [child's] desires . . .;
(B) the [child's] emotional and physical needs[,] . . . 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 [child's] best interest . . .;
(F) the plans for the child by these individuals or[, if applicable,] by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the [parent's] acts or omissions . . . indicat[ing] that the existing parent-child relationship is not a proper one; and
(I) any excuse for the [parent's] acts or omissions.Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (citations omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, "we consider, among other evidence, the Holley factors" (footnote omitted)); In re E. N.C. , 384 S.W.3d 796, 807 (Tex. 2012). These factors are not exhaustive, and some listed factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient to support a finding that termination is in the child's best interest. Id. On the other hand, the presence of scant evidence relevant to each factor will not support such a finding. Id.
a. The parties' arguments
Mother argues that the best-interest evidence is legally and factually insufficient because she completed her service plan; maintained her sobriety for eight months; found a job, demonstrating her ability to create a safe and stable environment for the children; and the children had remained bonded to her. Mother states that DFPS provided no evidence that she was unable to meet the children's emotional and physical needs, at the time of trial and in the future, and that the evidence showed that she had attended all of John's medical appointments and had learned about his allergies and how to address them. She also points out that although all five children were in the same foster home, that home was not adoption motivated, and DFPS could offer no assurance that the children could be kept together in a subsequent adoptive placement.
DFPS responds that the evidence is legally and factually sufficient to support the trial court's best-interest finding. DFPS directs us to evidence that Luke, Robert, and Mark told the ad litem attorney that although they loved Mother, they did not want to live in the environment from which they had been removed; that Kristen's motor skills were severely delayed when she was removed; that John was thriving in the foster home and was bonded to his caregivers and siblings; and that Robert and Mark had been behind academically when they were removed but had made significant strides academically. DFPS also directs us to evidence that Mother had no plans for the children or how to support their physical and emotional needs if they were returned to her and that her counselor testified that Mother lacked parenting skills. DFPS also directs us to Mother's testimony that she would not allow Carl to be around the children if they were returned to her but that she also was engaged to Carl, planned to marry him, and believed he was a good influence on the children.
b. Holley factor
(1) The children's desires
Regarding the children's desires, the ad litem attorney provided a summary to the trial court based on her comprehensive investigation and noted that "more than the children want to be with their mom, they want to be assured that they are going to be cared for, provided for, and not ever removed and placed in a foster home." Luke, the eldest at age thirteen, had made progress in therapy but worried more about Mother's well-being than his own. Robert enjoyed having enough to eat and had been adamant about his desire to avoid being exposed to drugs or people who were on drugs. Mark did not share the same anxiety over Mother's well-being that Luke and Robert did and was less bonded to Mother than Luke, Kristen, and John but wanted to be reunited with his family. Because of her developmental delays, three-year-old Kristen could not make her desires known, but the ad litem attorney noted that Kristen was excited to see Mother and Carl during visits, although she was able to leave the visits without becoming emotional. Two-year-old John also was excited to see his parents and was not old enough to make his desires known, but since his removal, his motor skills had begun to exceed those of his older sister once his failure to thrive was resolved and his food allergies were managed.
Considering the children's ages and the severity of the conditions from which they were removed, this factor weighs against Mother. Although the children were bonded to her and loved her, this is counterbalanced by (1) the extreme nature of Mother's neglect while under the influence of methamphetamine, (2) Luke's worries, (3) Robert's and Mark's hygiene, (4) Kristen's developmental delays, (5) John's failure to thrive, and (6) the children's desires to be cared for and sufficiently fed.
(2) Present and future emotional and physical needs
Luke and Robert, the older children who were more closely bonded with Mother, suffered from concerns about Mother's well-being. Mark, on the other hand, enjoyed therapy and had worked on processing his emotions and working through anxiety. Mark and Robert shared a close bond, and their academic issues had improved in foster care. Kristen and John required occupational and physical therapy based on their developmental delays, and in foster care, all their social, developmental, and medical needs were being met. John was bonded to his siblings and his foster parents.
Garza testified that neither Mother nor Carl had looked into continuing Kristen's and John's occupational and speech therapy if the children were returned to them. Carl stated that Kristen "just had anxiety [from] when they got took" and had never had any problems when she lived with him and Mother. He denied being aware that some of the children had tested positive for methamphetamine when they were removed or that Mother had used drugs. Mother opined that Carl was a good influence on the children and stated that it did not concern her that he had tested positive for methamphetamine at the case's beginning. But she testified that she would choose the children over Carl if she had to choose. Mother noted that John had "some food allergies" and that he was receiving physical and speech therapy and stated that, as far as she knew, he was doing well in them.
Mother's counselor Boyles opined that Mother was in denial about the negative effect on the children of her drug use and the subsequent removal and stated that it would be difficult for Mother to provide for the needs of five traumatized children.
Garza stated that her concerns if the children were returned to Mother and Carl were (1) Carl's continued drug use; (2) whether Mother would stay clean after the new baby was born; and (3) whether Mother or Carl would "really follow through with the care for the children." Garza agreed that it would be difficult for anyone to parent five children and that a controlled-substance dependency would make it more difficult to safely parent that many children. The ad litem attorney reported that returning the children to Mother would be an injustice to the children and would significantly impair their physical and emotional well-being.
Although Mother completed her service plan, which included parenting classes, this factor also weighs against her because the record does not reflect that she had made plans to care for each of the children's special needs.
(3) Present and future emotional and physical danger
Related to the factor above, the children were removed from an endangering environment, and although Mother had a relapse plan, DFPS had concerns about Mother's continued sobriety after giving birth because of her history of staying clean during pregnancy but not after. Mother was entirely dependent upon Carl's family for housing, transportation, and employment but denied that her employment would be at risk if she chose the children over Carl. Mother denied that the children could be happy away from her. Mother testified that she was scared to start using methamphetamine again because of Fentanyl, which was "the only drug that people are adding to it." But see In re S.G., No. 01-18-00728-CV, 2019 WL 1448870, at *11 (Tex. App.-Houston [1st Dist.] Apr. 2, 2019, pets. denied) (mem. op. on reh'g) ("[C]redibility assessments belong solely to the [factfinder], which was free to disbelieve the mother's professed commitment to sobriety.").
The record supports DFPS's concerns about the risk that Mother would relapse and subject her children to another removal, which would be physically and emotionally endangering to them. This factor weighs against Mother.
(4) Parental abilities
Mother's counselor Boyles opined that Mother loved the children but expressed concern about Mother's ability to handle all five children because "she ha[d] never lived with all of the children with her." Boyles stated that adding a new baby to the mix "would be pretty overwhelming for anyone," and opined that it would be overwhelming for Mother. Garza said that the service plan was not just a checklist but rather a plan designed for the parents to mitigate the reasons why the children were taken into foster care, and a large part of that was making demonstrable behavioral changes. She did not believe that Mother had completely demonstrated behavioral changes despite completing her service plan.
Garza had observed over thirty-six parent-child visits during the case. She agreed that the medical notes from John's hospital stays about how Mother and Carl needed prompts to care for and attend to John were demonstrative of how their visits went. This factor weighs against Mother.
(5) Other factors
Regarding plans for the child and the stability of the home or proposed placement, Garza testified that Mother's service-plan completion was insufficient because Mother had not been able "to definitively give [Garza] a concrete plan as to how she plan[ned] to make it on her own with five children as well as keep[] [Carl] from . . . being around the children if he continue[d] to show that he ha[d] not taken care of the issues." A few weeks before trial, Vivian began adding on to her home to provide room for the children, but the construction was not yet finished by the trial's conclusion. Although the children were in the same foster home, that home was not adoption motivated. This factor is neutral because neither option provided the children complete stability.
c. Analysis
Viewing the evidence set out above in the light most favorable to the bestinterest finding, we conclude that a reasonable factfinder could form a firm belief or conviction that termination of Mother's parental rights to the children was in their best interest and that the evidence is therefore legally sufficient to support the finding. See Z.N., 602 S.W.3d at 545.
Further, based on our review of the entire record, and giving due deference to the factfinder's findings, we hold that the trial court could have reasonably formed the same firm conviction or belief on best interest. See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 18-19. That is, while on paper Mother did everything she was supposed to do, the record also shows that she delayed starting her services initially and relapsed several months into the case-on the very day that she finished her CATS program designed to treat her drug addiction. Mother had a history of giving up drugs while pregnant, although Kristen's meconium tested positive for drugs when she was born, and there were concerns about Mother's ability to stay drug-free after the birth of her sixth child, as well as her ability to manage six children with little support outside of Carl's family.
Mother also gave diametrically different testimony about Carl-on the one hand, she promised to keep him away from the children; on the other, she denied knowing about his drug use, considered him a good influence on the children, and planned to marry him as soon as she could divorce Kevin.
Based on the entire record, we conclude that the evidence is factually sufficient to support the trial court's best-interest finding. We overrule Mother's fifth issue.
IV. Conclusion
Because we find no arguable issues to support Kevin's and Carl's appeals other than the correctable judgment error as to Carl, and having overruled Mother's dispositive issues, we modify the trial court's judgment to delete the unpleaded termination ground (P) as to Carl and affirm the trial court's judgment as modified. We deny the motions to withdraw filed by Kevin's and Carl's attorneys. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (order); see also Tex. Fam. Code Ann. § 107.016(2) (providing that a parent's appointed attorney continues to serve until the earliest of the dismissal of the suit affecting the parent-child relationship, the date all appeals in relation to any final order terminating parental rights are exhausted or waived, or the date the attorney is relieved of his or her duties or replaced by another attorney after a finding of good cause is rendered by the court on the record).