# in the Interest of C. J. a Child v. Department of Family and Protective Services

> Texas Court of Appeals, 1st District (Houston) · January 26, 2021

URL: https://www.frixlaw.com/law-library/cases/4656149

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** January 26, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4656149

## How later opinions describe it (automated extraction)

- holding counsel’s failure to object to broad-form submission of termination issues not deficient where Texas Supreme Court had approved broad-form submission in termination-of-parental-rights cases

## Opinion text

Opinion issued January 26, 2021

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-19-00704-CV
———————————
IN THE INTEREST OF C.A.J., A CHILD

On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2018-00169J

MEMORANDUM OPINION

In this accelerated appeal,1 appellant, mother, challenges the trial court’s

order, entered after a jury trial, terminating her parental rights to her minor child,

C.A.J.2 In six issues, mother contends that the evidence is legally and factually

1
See TEX. FAM. CODE ANN. § 263.405(a); TEX. R. APP. P. 28.4.
2
The trial court also terminated the parental rights of C.A.J.’s alleged father. He is
not a party to this appeal.
insufficient to support the jury’s finding that termination of her parental rights was

in the best interest of C.A.J.,3 the trial court erred in appointing the Department of

Family and Protective Services (“DFPS”) as C.A.J.’s sole managing conservator and

in excluding certain evidence at trial, her trial counsel provided her with ineffective

assistance of counsel, the trial court’s judgment does not conform to the verdict, and

the case should be remanded to the trial court for a new trial in the interest of justice

because of the cumulative effect of the trial court’s errors.

We affirm.

Background

On January 18, 2018, the DFPS filed a petition seeking termination of

mother’s parental rights to C.A.J. and managing conservatorship of C.A.J.4

Removal Affidavit

At trial, the trial court admitted into evidence a copy of the affidavit of DFPS

Investigations Supervisor Nisela Zamorano. Zamorano testified that on January 12,

2018, DFPS received a referral alleging negligent supervision of C.A.J. by mother.

C.A.J., who was five years old in January 2018, had tested positive for cocaine use

on January 8, 2018 after being taken to West Oaks Hospital (“West Oaks”)—a

3
See TEX. FAM. CODE ANN. § 161.001(b)(2).
4
C.A.J. was born in March 2012. He was five years old when he was removed from
mother’s care in January 2018, and he was seven years old at the time of trial.

2
hospital that provides psychiatric care for children. Mother took C.A.J. to West

Oaks after he stated that he wanted to harm himself and mother. 5 According to the

referral received by DFPS, on January 10, 2018, C.A.J. was retested for narcotics

use. The narcotics-use testing results from January 10, 2018 were negative for

cocaine use, which indicated either that there had been a mistake with C.A.J.’s

January 8, 2018 testing or that the cocaine that was previously in C.A.J.’s system

had “left his system” before the January 10, 2018 retest.

Regarding DFPS’s investigation of the allegation of negligent supervision,

Zamorano testified that DFPS Investigator Melissa Scott6 interviewed C.A.J. at West

Oaks. C.A.J. appeared clean and healthy. C.A.J. told Scott that he was in the

hospital “for saying hateful things to his mother.” C.A.J. said that he had an attitude

with mother and was mean to her when he had no reason to be. C.A.J. stated that he

and mother lived together in a home, there was food in his home, and he received

timeouts when he got in trouble. C.A.J. noted that he took medicine at home “for

not listening.”

Scott also spoke with David Page, a caseworker at West Oaks, who stated that

C.A.J. was admitted to the hospital on January 7, 2018. C.A.J. was diagnosed with

5
At the time that Zamorano signed her affidavit on January 18, 2018, C.A.J. was still
a patient at West Oaks.
6
The trial court admitted into evidence a copy of Scott’s Child Protective Services
(“CPS”) Investigation Report. We note that Scott’s first name is spelled differently
throughout the record.

3
disruptive mood dysregulation disorder (“DMDD”) and attention deficit

hyperactivity disorder (“ADHD”) and prescribed medication. On January 8, 2018,

the day after he was admitted to West Oaks, C.A.J. tested positive for cocaine use

by urinalysis. He was retested on January 10, 2018 by urinalysis, and he tested

negative for cocaine use. It could not be determined whether the January 8, 2018

positive testing results were a mistake because, by the January 10, 2018 retest, the

cocaine that was previously present in C.A.J.’s system could have left C.A.J.’s

system.

When Scott interviewed mother, she admitted to being a user of cocaine and

explained that after she quit drinking alcohol, she began using cocaine. Mother

stated that the last time she had used cocaine was while C.A.J. was being treated at

West Oaks in January 2018. Mother denied using cocaine in her home, but she

admitted to using cocaine at her friend’s house. Mother stated that she did not bring

narcotics into the home. Mother did not know how C.A.J. would have ingested

cocaine and could not explain why C.A.J. could have tested positive for cocaine use.

While speaking to C.A.J.’s babysitter on the telephone in front of Scott, mother told

the babysitter that she had “used cocaine in the park one day.”7

7
Scott’s CPS Investigation Report states that when mother visited C.A.J. at West
Oaks for a “family session” her behavior was erratic. She “constantly hiccupped
and sniffed and wiped her nose with her fingers.” Mother was “seemingly unable
to remain in a comfortable seated position,” her eye contact was erratic, and she
“fumbled in her chair.” Mother’s pupils appeared to be dilated, and she had trouble
4
During her interview with Scott, mother acknowledged that she had a criminal

history and a history with DFPS. Mother also told Scott that she had been “arrested

because she had fallen asleep behind the wheel [of the car], but [the criminal case

against her was] going to be dismissed.”8 On the day of that arrest, mother consumed

“one shot” of alcohol at a restaurant.

Regarding C.A.J., mother told Scott that she did not receive child support from

C.A.J.’s father. C.A.J. took Adderall, and after being admitted to West Oaks, C.A.J.

had also been prescribed Abilify. Mother took C.A.J. to West Oaks after he was

“very withdrawn with her” and “made . . . threatening statements.” According to

mother, she stated that C.A.J. had stated in the past that his “life [was] worthless”

and he would throw things. (Internal quotations omitted.)

Zamorano’s affidavit also detailed mother’s history with DFPS. In fall 2012,

when C.A.J. was an infant, he was removed from mother’s care after she was found

highly intoxicated while caring for the child. Mother admitted that she could not

recall the details of that evening.9 About a month later, mother was transported to

answering questions. The therapist in the family session believed that mother was
“under the influence of a substance[].” C.A.J. moved seats and seemed
uncomfortable sitting next to mother. As Scott explained in her report, because of
mother’s “erratic behavior[] [and C.A.J.’s] possible cocaine trace,” “there [was]
concern of substance abuse in [mother’s] situation and [there was a] consequential
a concern for [C.A.J.’s] well[-]being.”
8
The date of this arrest is unclear.
9
Scott’s CPS Investigation Report states that, in October 2012, mother was found
unresponsive after consuming a large quantity of alcohol. C.A.J. was present at the
5
the hospital for “a possible overdose and alcohol abuse.” Mother told the nurse that

she had taken “two pills,” and she tested positive for barbiturates use. C.A.J. was

then placed in foster care, but he was returned to mother’s care at some point.10

In January 2013, mother was found unconscious while caring for C.A.J. as the

result of either drinking alcohol or using pills.11 Mother admitted to consuming

alcohol and to “passing out.” Testing results showed that mother was positive for

alcohol use. C.A.J. was again removed from mother’s care. After mother completed

certain requirements dictated by DFPS, C.A.J. was returned to her care.12

time. Another adult was also present, but he or she was not completely sober and
was not comfortable caring for C.A.J. Concerns were raised about mother’s ability
to safely care for C.A.J. due to her level of alcohol consumption. Mother admitted
to not being able to recall the details of that evening.
10
Scott’s CPS Investigation Report states that, in November 2012, a subsequent report
was made that mother was unable to provide appropriate care for C.A.J. as she had
possibly overdosed, was in the hospital, and had no one to care for C.A.J. Mother
told the nurse at the hospital that she had taken “two pills.” Narcotics-use testing
results showed that mother was positive for barbiturates use, and C.A.J. was placed
into foster care. The suit against mother was dismissed in December 2012 because
of a “no show” by the local CPS agency.
11
Scott’s CPS Investigation report states that, on January 30, 2013, mother placed
C.A.J. at risk of harm because she was found unconscious for a third time while
caring for C.A.J. Mother admitted to consuming alcohol and remembered “passing
out.” C.A.J. was again removed from mother’s care. The report notes that mother
refused to accept that she had a problem with or an addiction to alcohol and she
denied needing inpatient treatment services. Mother insisted that she was having a
negative reaction to her medications which caused her to “black out[]” and “pass[]
out.” (Internal quotations omitted.) Mother purportedly hid liquor bottles in the
freezer, the cabinets, the restroom, and luggage areas in her home.
12
Scott’s CPS Investigation Report states that C.A.J. was returned to mother’s care
after she completed “court ordered services” and “remained sober.”

6
In 2016, C.A.J. was removed from mother’s care for a third time when a law

enforcement officer found mother “intoxicated and incoherent at a red light with

[C.A.J.] in the car.” C.A.J. handed the law enforcement officer “a bottle of [liquor]

and stated that it was . . . mother’s [bottle].” Mother admitted to consuming alcohol

that day. After mother completed certain requirements dictated by DFPS, C.A.J.

was returned to her care.

Dr. Uzokwe

Dr. Festus Uzokwe, a psychiatrist who treated C.A.J. at West Oaks, testified

that C.A.J. was admitted to West Oaks on January 7, 2018 because “he was feeling

like killing himself” and had been “hearing voices telling him to hurt himself” and

mother.13 He was angry and agitated. C.A.J. was supposed to be taking Adderall

regularly while in mother’s care because he had been previously diagnosed with

ADHD. Dr. Uzokwe also diagnosed C.A.J. with DMDD and prescribed Abilify, a

psychotropic drug, to address C.A.J.’s hallucinations. Dr. Uzokwe noted that he had

difficulty reaching mother to discuss C.A.J.’s condition or treatment while C.A.J.

was a patient at West Oaks, but he did speak to her on one occasion. When he did

13
The trial court admitted into evidence a copy of C.A.J.’s records from West Oaks.
The notes in the records state that C.A.J. threatened to kill mother and himself with
a knife by cutting his own throat because of auditory hallucinations. C.A.J. was
exhibiting physical aggression at home and school. C.A.J. reportedly would “rage[]
with minimal provocation,” yell, and break things. His aggression purportedly
started about six to eight weeks before January 7, 2018. Mother was also concerned
about C.A.J. lying.

7
so, mother reported to Dr. Uzokwe that C.A.J. had been experiencing “moodability,”

aggression, and difficulty sleeping, and he had been hearing voices. Mother

consented to C.A.J. being given Adderall and Abilify, although she expressed

concern about the potential for addictiveness.

Dr. Uzokwe also explained that on January 8, 2018, C.A.J. was tested for

narcotics use. The urinalysis testing results14 showed that C.A.J. was positive for

cocaine use, and they did not show that C.A.J. had been taking his Adderall while in

mother’s care.15 Because cocaine usually only stays in a person’s urine for two to

three days, the January 8, 2018 positive testing results indicated that C.A.J. would

have ingested cocaine within forty-eight to seventy-two hours before being brought

to West Oaks. In other words, C.A.J. would have ingested cocaine while in mother’s

care. Dr. Uzokwe explained that the ingestion of cocaine by a child is worrisome

because it could cause increased agitation, irritability, hallucinations, paranoia,

respiration difficulty, sleeping difficulty, and an increase in heart rate, which could

lead to a heart attack or a stroke.

Because of the January 8, 2018 positive testing results, C.A.J. was retested for

narcotics use on January 10, 2018. The urinalysis testing results from January 10,

14
The trial court admitted into evidence a copy of the January 8, 2018 narcotics-use
testing results for C.A.J.
15
According to Dr. Uzokwe, the January 8, 2018 narcotics-use testing results should
have shown that C.A.J. was taking Adderall unless he was not being given it
regularly while in mother’s care.

8
2018 showed that C.A.J. was negative for cocaine use, but that he was taking his

Adderall—which the hospital staff had been giving him since his arrival on January

7, 2018. Dr. Uzokwe noted that these testing results could mean that the cocaine

that was previously in C.A.J.’s system had “passed” or “gone out” or it was possible

that there was a mistake with the January 8, 2018 positive testing results.

Dr. Uzokwe also testified that, while at West Oaks, C.A.J. participated in

group activities and counseling sessions with the goal of establishing “coping

strategies or anger management skills appropriate for [C.A.J.’s] age and

problem[-]solving skills.” C.A.J. was discharged from West Oaks at the end of

January. At the time that he was discharged, C.A.J. was not experiencing

hallucinations or suicidal or homicidal thoughts. C.A.J. was instructed to continue

taking Adderall and Abilify after leaving West Oaks.16

According to Dr. Uzokwe, C.A.J., while being treated at West Oaks, was

cooperative and smart, but he had episodes of behavioral challenges. C.A.J., during

his counseling or therapy sessions, identified mother as a coping resource, and he

appeared to be bonded with her. C.A.J. stated that he relied on mother for support

16
C.A.J.’s records from West Oaks state that he was discharged on January 31, 2018.
At the time of discharge, C.A.J. had goal-oriented and logical thought processes,
did not show signs of delusion or paranoia, was not experiencing hallucinations, and
did not have suicidal or homicidal thoughts.

9
and “felt he could go to her.” Dr. Uzokwe did not have any concerns about C.A.J.

not being fed while in mother’s care or about his physical appearance.

Bruce Jeffries

Bruce Jeffries, who works for the National Screening Center and National

Assessment Center, testified as an expert on narcotics-use testing. Regarding

C.A.J.’s narcotics-use testing, Jeffries explained that C.A.J. was tested for narcotics

use for a third time on January 22, 2018. The hair follicle testing results17 showed

that C.A.J. was positive for cocaine use, specifically that C.A.J. had ingested cocaine

sometime within the ninety days before the January 22, 2018 test. The results

indicated that C.A.J.’s level of usage of cocaine was “[a] lot” and that C.A.J. was

using cocaine “almost daily” during the previous ninety days. Jeffries stated that

C.A.J. was a “chronic user” of cocaine. And Jeffries had “no doubt” that C.A.J. had

ingested “high levels of cocaine.” Jeffries opined that a five-year-old ingesting

cocaine was dangerous and that a child could be given cocaine daily without being

aware of it.

Jeffries also stated, about C.A.J.’s January 8, 2018 narcotics-use testing

results, that the urinalysis results did not show that C.A.J. had any Adderall in his

system, but it showed that he was positive for cocaine use. However, Jeffries could

17
The trial court admitted into evidence a copy of the January 22, 2018 narcotics-use
testing results for C.A.J.

10
not determine from the January 8, 2018 testing results whether C.A.J. had been

taking his Adderall as prescribed. The positive testing results for cocaine use

indicated that C.A.J. had ingested cocaine one to three days before January 8, 2018.

And if C.A.J. had ingested cocaine before he was admitted to West Oaks on January

7, 2018, it may have left his system by the January 10, 2018 retest. Although Jeffries

generally questioned the validity of the January 8, 2018 and January 10, 2018

narcotics-use testing that occurred at West Oaks, he was confident that the

narcotics-use testing performed by his company on January 22, 2018, which showed

that C.A.J. had ingested cocaine, was reliable. Jeffries stated that he was “100

percent” confident that C.A.J. had ingested “[a] lot” of cocaine sometime within

ninety days before the January 22, 2018 narcotics-use testing and no combination of

medications would have caused the January 22, 2018 positive testing results that

revealed cocaine use.

Regarding mother’s narcotics-use testing, Jeffries testified that mother was

tested for narcotics use on January 18, 2018.18 The hair follicle testing results

showed that mother was positive for cocaine use, specifically that mother had

ingested cocaine sometime within the ninety days before the test—likely when

C.A.J. was in her care. As with C.A.J., the results indicated that mother was using

18
The trial court admitted into evidence a copy of the January 18, 2018 testing results
for mother.

11
cocaine on a daily or “nearly daily” basis within the ninety days before the January

18, 2018 test. Jeffries described mother’s cocaine usage as “heavy.” The urinalysis

testing results from January 18, 2018 showed that mother was positive for cocaine

use and prescription Xanax use.19 Based on these results, Jeffries explained that

mother would have used cocaine within the three days before the test. The level of

cocaine in mother’s urine was “pretty high,” indicating that mother would have

“used an extensive amount of cocaine” sometime within the seventy-two hours

before the January 18, 2018 test.

Jeffries testified that mother was tested again for narcotics use on March 8,

2018.20 The hair follicle testing results showed that mother was positive for cocaine

use, specifically that mother had ingested cocaine sometime within the ninety days

before the test. The urinalysis testing results showed that mother had not used

cocaine within the seventy-two hours before the March 8, 2018 test.

Mother was next tested for narcotics use on May 24, 2018.21 The hair follicle

testing results showed that mother was positive for cocaine use, specifically that

19
Jeffries noted that Xanax usually stays in a person’s urine for one to three days, but
it could stay in a person’s urine for up to fourteen days. Cocaine stays in a person’s
urine for up to three days.
20
The trial court admitted into evidence a copy of the March 8, 2018 testing results
for mother. C.A.J. had not been in mother’s care since January 2018.
21
The trial court admitted into evidence a copy of the May 24, 2018 testing results for
mother.

12
mother had ingested cocaine within the ninety days before the test.22 According to

Jeffries, this would indicate that mother had used cocaine sometime between her first

January 18, 2018 narcotics-use test and her May 24, 2018 narcotics-use test and after

C.A.J. had been removed from her care. The urinalysis testing results showed that

mother had not used cocaine within seventy-two hours of the May 24, 2018 test.

Mother was again tested for narcotics use on June 14, 2018.23 The urinalysis

testing results showed that mother was positive for barbiturates and codeine use.

Mother was then tested for narcotics use on October 3, 2018, November 30,

2018, and February 6, 2019.24 Mother’s October 3, 2018 urinalysis testing results

showed that mother was positive for prescription Valium and Vicodin use. And

mother’s November 30, 2018 urinalysis testing results showed that mother was

positive for prescription Vicodin use. Further, mother’s February 6, 2019 urinalysis

testing results showed that mother was positive for prescription Xanax, Valium, and

Vicodin use. Jeffries noted that mother would need prescriptions for the positive

testing results for such narcotics to not be concerning. Yet, the results for mother’s

22
Ninety days before May 24, 2018 is February 24, 2018. See Higginbotham v. Gen.
Life & Accident Ins., Co., 796 S.W.2d 695, 696 (Tex. 1990) (court may take judicial
notice of dates).
23
The trial court admitted into evidence a copy of the June 14, 2018 testing results for
mother.
24
The trial court admitted into evidence copies of the October 3, 2018, November 30,
2018, and February 6, 2019 testing results for mother.

13
narcotics-use testing on June 14, 2018, October 3, 2018, November 30, 2018, and

February 6, 2019, copies of which the trial court admitted into evidence, stated that

mother’s testing results were considered “positive [for prescription narcotics use]

until further verification of prescriptions.”

On May 30, 2019 mother tested negative for narcotics use.25

DFPS Investigations Supervisor Zamorano

DFPS Investigations Supervisor Zamorano testified that on January 12, 2018,

DFPS received a report alleging negligent supervision of C.A.J. by mother after

C.A.J. tested positive for cocaine use while being treated at West Oaks. The report

also alleged that mother had arrived at West Oaks acting erratically and nervously.

After DFPS received the report, mother consented to having C.A.J. tested for

narcotics use by DFPS. Mother also participated in an interview with a DFPS

investigator. During her interview with the investigator, mother admitted to using

cocaine, but stated that she had never used narcotics around C.A.J. Therapists from

West Oaks also told the DFPS investigator that C.A.J. was angry and upset by

mother. During his interview with the DFPS investigator, C.A.J. denied being left

alone while in mother’s care, denied seeing any narcotics, and denied seeing mother

25
The trial court admitted into evidence a copy of the May 30, 2019 testing results for
mother. The trial court also admitted into evidence a copy of the testing results from
June 27, 2019, which were negative for narcotics use.

14
using narcotics or consuming alcohol. At the completion of DFPS’s investigation,

it was determined that there had been neglectful supervision of C.A.J. by mother.

Regarding mother’s history with DFPS, Zamorano explained that C.A.J. was

removed from mother’s care and placed in a foster home in November 2012 when

C.A.J. was an infant because allegedly mother had been highly intoxicated while

caring for C.A.J. It was also reported to DFPS that mother had potentially

overdosed. Mother admitted to being intoxicated and “taking some pills” while

C.A.J. was in her care. C.A.J. was later transitioned back into mother’s care in

January 2013, but within about two weeks of C.A.J. being returned to mother’s care,

he was removed again due to concerns with mother’s continued narcotics use and

alcohol abuse. C.A.J. was returned to mother’s care in October 2013. According to

Zamorano, C.A.J. was later removed from mother’s care in June 2016 after a “traffic

incident” involving mother. Mother was found intoxicated, incoherent, and

unresponsive at a red light with C.A.J. in the car with her. When a law enforcement

officer arrived at the scene, C.A.J. handed him a bottle of liquor. C.A.J. was later

returned to mother’s care in November 2016 after mother “worked services [dictated

by DFPS] . . . and regained sobriety.”

In Zamorano’s opinion, it was not safe for C.A.J. to be returned to mother’s

care after he was discharged from West Oaks at the end of January 2018 because of

mother’s narcotics use. And although C.A.J. was bonded with mother, Zamorano

15
stated that she had “grave concern” about the fact that C.A.J. had tested positive for

cocaine use given that mother had a history of substance abuse. And although

mother had participated in substance-abuse treatment in the past, she tended to revert

to the same behavior. Because of C.A.J.’s previous removals from mother’s care

and the level of cocaine found in his system, in Zamorano’s opinion, it was crucial

that C.A.J. remain in a safe and stable home for the rest of his childhood.

Zamorano further noted that after being discharged from West Oaks, DFPS

placed C.A.J. in a “therapeutic foster home.”26 It was important for C.A.J. to be

placed in a therapeutic foster home because he had been diagnosed with ADHD and

DMDD, he had tested positive for cocaine use, and he had expressed suicidal and

homicidal thoughts.

Sergeant Collier

Corpus Christi Police Department (“CCPD”) Sergeant J. Collier testified that

on June 27, 2016,27 around 6:22 p.m., she was dispatched in response to a call about

mother being “passed out behind the wheel” of a car that was stopped in the left-hand

lane of a major roadway. When Collier arrived at the scene, which was a busy

intersection, she saw mother “passed out” in the driver’s seat of her car, “slumped

26
Zamorano described a “therapeutic foster home” as a “foster home that caters more
to children with more needs in terms of having more hands-on care.”
27
The trial court took judicial notice that June 27, 2016 was a Monday.

16
over,” and unconscious. Collier could smell “the intoxicating beverage emanating”

from mother. Mother’s car was in the middle of the street. Emergency medical

technicians (“EMTs”) were attending to mother, and they administered Narcan

because it was unclear why mother was unconscious.28 Because Narcan did not have

any effect on mother, the EMTs did not believe narcotics use to be the reason for

mother’s unresponsiveness. Mother did regain consciousness before leaving the

scene, but Collier noted that mother continued to be “[i]n and out” of consciousness

until she arrived at the hospital. The EMTs transported mother to the hospital by

ambulance.

While searching mother’s car, Collier found a partially empty liquor bottle,

and the EMTs gave her an empty prescription bottle for hydrocodone with mother’s

name on it, which they had found in mother’s lap. Collier believed that mother was

intoxicated, and she explained at trial that it was unusual to find someone driving

while intoxicated with a child in the car. At the hospital, mother was uncooperative

with the medical staff, her speech was slurred, and her eyes were red and glassy.

Collier stated that mother was “obviously intoxicated” but not unconscious at the

hospital. Collier did not have mother perform any field sobriety tests at the hospital

because Collier felt that “due to her intoxicated state she could hurt herself if she

28
Narcan is an antidote to opioid overdose. See Bowen v. State, No. 02-19-00255-CR,
2020 WL 1949021, at *2 n.5 (Tex. App.—Fort Worth Apr. 23, 2020, pet. ref’d)
(mem. op. not designated for publication).

17
tried walking.” Collier obtained a search warrant so that mother’s blood could be

drawn.

Regarding C.A.J., Sergeant Collier stated that he was found unbuckled in the

back seat of mother’s car by the first law enforcement officer that arrived at the

scene. C.A.J. handed that first arriving officer the liquor bottle that Collier later

recovered from mother’s car. No one else was in the car other than mother and

C.A.J. In Collier’s opinion, C.A.J. was in danger while inside the car with an

unconscious mother because mother’s car was parked in the middle of the street, so

it could have been hit by another car. C.A.J. was also four years old at the time, and

he could have “run off” or been “hit by a car.” At the scene, C.A.J. was upset and

worried about mother. And he was worried “about where he was going to be going”

and “[w]ho was going to be taking care of him.” C.A.J. did not appear to be

physically harmed and appeared healthy to Collier.29

29
The trial court admitted into evidence a copy of the CCPD “Incident/Investigation
Report” from the June 27, 2016 incident involving mother. The first arriving law
enforcement officer stated the following in the report:
I . . . was patrolling the area . . . , when I observed several vehicles at
a stop on the 5100 block of Weber NB and several citizens assisting a
female inside a small passenger car, slumped over her steering wheel.
The female was unresponsive.
An unknown citizen advised that the vehicle was off and she
witnessed the female appear[ing] to be asleep inside her car, on the
roadway; therefore, she pulled over to assist. . . . [T]here was heavy
traffic during th[at] time. I witnessed a child in the back of the vehicle,
out of his child safety seat, and I witnessed a 2/3 full liquor bottle on
the front passenger seat, next to a large purse. The child grabbed the
18
DFPS Caseworker Owens

DFPS caseworker LaQuesha Owens testified that C.A.J. entered DFPS’s care

after he and mother tested positive for cocaine use in January 2018. After C.A.J.

entered DFPS’s care, he was discharged from West Oaks at the end of January 2018

and placed in a foster home from January 2018 to May 2018. In May 2018, C.A.J.

was admitted to IntraCare North Hospital (“IntraCare North”)—a psychiatric

hospital—for about a month.30 C.A.J. was then placed in another foster home from

June 1, 2018 until July 6, 2018, while DFPS waited for the results of a home study

for a foster to adopt placement in Corpus Christi, Texas. The potential foster to

adopt placement was with a family that C.A.J. had previously known and stayed

with. C.A.J. stayed with the foster family in Corpus Christi from July 2018 until

November 2018.31 Ultimately though, C.A.J.’s Corpus Christi foster family could

liquor bottle and handed it to me and stated, “this is my mommy’s
drink.” . . . I placed the liquor bottle on the floor board behind the
driver[’]s seat and advised assisting officers of my finding. I then
grabbed the child and placed him in my patrol [car] while [the EMTs]
attended to his mother, who remained unresponsive.
The report contains additional information about the June 27, 2016 incident, and
states that mother was “arrested for suspicion of driving while intoxicat[ed] with a
child.”
30
At IntraCare North, C.A.J. was again diagnosed with ADHD and DMDD.
31
C.A.J.’s Corpus Christi foster mother, Alda Hernandez, testified that she met mother
in 2013 when mother was a resident at an inpatient substance abuse rehabilitation
center and Hernandez was the female program manager. They maintained contact
after mother left the rehabilitation center, and when C.A.J. was reunited with mother
sometime after July 2013, Hernandez would babysit him while mother worked.
C.A.J. was about two years old at the time, and he and mother both lived in Corpus
19
not continue caring for him because of an emergency health situation with another

member of the foster family.32 DFPS then sought to find C.A.J. another “forever

home.” In November 2018, C.A.J. was placed in a foster home with a new adoptive

foster family, which DFPS thought would be a good fit for him. After about two

weeks though, the foster mother reported that she could not handle C.A.J.’s

misbehavior and asked that C.A.J. be removed from the home. Thus, C.A.J. was

moved to another adoptive foster family on November 20, 2018. C.A.J. was still in

that foster placement at the time of trial.33

Christi. Hernandez was also called to pick up C.A.J. at the scene on June 27, 2016
when mother was found unconscious in the driver’s seat of her car with C.A.J. in
the back seat. DFPS temporarily placed C.A.J. in Hernandez’s home for about two
months after the June 27, 2016 incident.
32
Hernandez testified that when C.A.J. was placed with her family in July 2018, she
and her husband planned to adopt him. However, Hernandez’s daughter-in-law had
a stroke and became disabled, which required certain additional family members to
move into Hernandez’s home, and she and her family were not going to be able to
give C.A.J. the support that he needed. Hernandez stated that, while in her care in
2018, C.A.J. took medications to help with listening, sleeping, and waking up in the
morning. C.A.J. had been diagnosed with oppositional defiant disorder (“ODD”),
ADHD, and depressive mood disorder, and he saw a therapist while in Hernandez’s
care. When C.A.J. came to live with her family in July 2018, he would throw
tantrums when things did not go his way, he would hit himself, he would scratch
himself, and he would say things like no one loved him, he wanted to go to back to
the hospital, he wanted to hurt mother, he did not want to see mother, and he wanted
to hurt himself. According to Hernandez, C.A.J. would, “[a]t times,” report that he
missed mother. After C.A.J. would have visits with mother, he would “come back
very aggressive” and would “act[] out” for a couple of days, which was different
than his normal behavior.
33
C.A.J. met his current foster parents before he was placed with them.

20
Regarding C.A.J.’s current adoptive foster placement, when C.A.J. was

placed with his current foster family, there was a foster mother, a foster father, and

a thirteen-year-old foster child in the home.34 Prior to placing C.A.J. with his current

foster family, Owens spoke with the foster parents about his history of misbehavior,

acting out, being defiant, cursing, lying about certain situations, and taking things

that did not belong to him. The first couple of months in C.A.J.’s current placement

were “rough” because of C.A.J.’s misbehavior and because the thirteen-year-old

foster child in the home admitted to engaging in inappropriate sexual touching with

C.A.J.35 The inappropriate sexual touching incident occurred in November or

December 2018, and upon learning of its occurrence, C.A.J.’s foster parents

immediately separated the thirteen-year-old foster child and C.A.J. And C.A.J. and

his foster mother left the home until the thirteen-year-old foster child was removed

from the home and placed elsewhere. The foster parents also immediately reported

the incident to the appropriate agencies, and C.A.J.’s foster mother took C.A.J. to

therapy to help him deal with the situation. C.A.J. continued to see a therapist

34
The thirteen-year-old foster child may have been placed in the foster home shortly
after C.A.J. was placed in the home.
35
The thirteen-year-old foster child admitted to being the instigator of the
inappropriate sexual touching. Owens noted that the thirteen-year-old foster child
had previously been a victim of sexual abuse and neither DFPS nor the C.A.J.’s
foster parents were aware of the child’s sexual-abuse history when C.A.J. was
placed in the foster home. DFPS’s investigation revealed that the inappropriate
sexual touching incident was not a “one-time thing,” but had occurred over a period
of a few weeks.

21
throughout the pendency of the termination case, and his current foster parents take

him to his therapy appointments.36 According to Owens, C.A.J.’s current therapist

did not believe that C.A.J. would have long-lasting effects from the inappropriate

sexual touching incident with the thirteen-year-old foster child.

Owens further testified that C.A.J.’s behavior improved in the beginning of

2019 and he was doing better in his current foster home.37 C.A.J. had a very good

relationship with his foster parents and there appeared to be a bond between them.

C.A.J.’s foster parents told Owens that they wanted to see C.A.J. in a permanent,

stable, and safe placement and they wanted to adopt him. C.A.J.’s foster parents are

committed to him. Owens believed that the best placement for C.A.J. was his current

foster placement because his foster parents keep him safe and provide him with

stability and permanency with his schooling and in the home. C.A.J.’s foster parents

have not put him in any danger. Owens noted that she had observed the foster

parents’ parental abilities and she did not have concerns.38 For instance, when C.A.J.

36
Owens testified that she was comfortable with the steps that C.A.J.’s current foster
parents took to address the inappropriate sexual touching incident after they learned
about it.
37
The only people living in C.A.J.’s current placement at the time of trial were him,
his foster mother, and his foster father.
38
Child Advocates, Inc. volunteer Joy Franklin testified that she had observed C.A.J.
in his current foster placement. C.A.J. appeared happy, seemed to be a part of the
community, and “look[ed] like he[] [was] in a home-like environment.” She
believed that C.A.J. should remain with his current foster placement, which had
structured, loving, and nurturing caregivers, who provided C.A.J. with a solid
foundation.

22
was “acting out,” his foster parents would tell him that there were consequences for

his actions, such as having his iPad taken away or an outing canceled due to his

misbehavior.

Owens did note that mother had suggested other possible placements for

C.A.J., including with her girlfriend, Amber. Although DFPS looked into Amber as

a possible placement for C.A.J., Owens stated that DFPS did not feel that Amber

would be protective of C.A.J. or be able to keep him safe. And Owens explained

that Amber had not seemed to take an interest in C.A.J. during the pendency of the

termination case. According to Owens, DFPS also looked into placing C.A.J. with

his maternal grandparents, but they declined to take him, stating that they would not

be able to care for him due to their age and the fact that C.A.J.’s older sister was

already living in their home. C.A.J.’s maternal grandmother also told Owens that if

C.A.J. were to come live with her, she wanted to be able to give him back to mother

without DFPS’s involvement.

Regarding mother’s substance-abuse issues, Owens testified that mother

attended the Nexus Recovery rehabilitation facility (“Nexus Recovery”) in Dallas,

Texas around March 2018 after C.A.J. was removed from her care. And at some

point, in spring 2018, mother was successfully discharged from that rehabilitation

facility. Mother then “relapsed” “with pills” and entered the Cenikor rehabilitation

23
facility (“Cenikor”) in Deer Park, Texas.39 In May 2018, mother was unsuccessfully

discharged from Cenikor because she had twice tested positive for opiates and

benzodiazepines use. Next, mother entered a ninety-day outpatient treatment

program at Billy T. Cattan Recovery Outreach Center (“Billy T. Cattan Recovery”)

in Victoria, Texas. Mother began that program in June 2018, and she was

unsuccessfully discharged in January 2019 for “excessive absences” and not

complying with treatment.”40 In February 2019, mother entered the La Hacienda

Treatment Center (“La Hacienda”) in Kerrville, Texas and she successfully

completed a thirty-day treatment program. The goal after mother completed the

program at La Hacienda was for her to “maintain her sobriety” and to become

39
The trial court admitted into evidence a copy of the “Discharge Summary” from
Cenikor, which states that mother began treatment at the rehabilitation facility on
May 1, 2018 and she was discharged on May 25, 2018. The “Final Assessment” in
the report states that mother “did not appear motivated to change the behavior[] and
attitude[] that contributed to her addiction. She was at a high risk of relapse at
discharge.” It also notes that mother “d[id] not have a supportive family situation”
at the time.
40
The trial court admitted into evidence copies of several “Monthly Progress Report[s]
and Treatment Team Meeting Record[s]” from Billy T. Cattan Recovery, which
state that mother entered treatment on June 11, 2018. The June 30, 2018 progress
report states that her participation was “[p]oor” and she missed group and individual
appointments. The July 31, 2018 progress report states that mother’s participation
was “[p]oor” and her progress was “[p]oor.” Mother did not attend any
appointments in July. The August 31, 2018 progress report states that mother’s
participation was “[p]oor” and her progress was “[p]oor.” Mother missed five
appointments in August. The September 30, 2018 progress report states that
mother’s participation was “[p]oor” and her progress was “[p]oor.” Mother “made
no progress th[at] month in [the] program” and had excessive absences. The
October 31, 2018 progress report states that mother’s participation was “[p]oor,”
her progress was “[p]oor,” and mother did not attend any appointments in October.

24
involved with an Alcoholics Anonymous program. Mother then entered a long-term

treatment program at Omega Recovery in Austin, Texas. In May 2019, shortly

before trial, mother was tested for narcotics use and that was the first test where

mother was negative for illegal and prescription narcotics use since the termination

case had begun.41

Regarding mother’s Family Services Plan (“FSP”), Owens explained that

mother was required to submit to a psychosocial evaluation, a substance-abuse

assessment, and random narcotics-use testing. Mother was also required to maintain

stable employment and stable housing, sign a “release of information form,” stay in

contact with the DFPS caseworker, and attend family-therapy sessions. Mother’s

counsel went over her FSP with her at a status hearing, and there was no indication

that mother was confused by its requirements. Owens noted that mother completed

the required parenting classes at one of the substance-abuse treatment programs that

she attended, and mother maintained contact with Owens through her attorney.

Mother missed two court hearings during the pendency of the case, and Owens did

not receive monthly proof that mother had stable employment.42 Owens stated that

proof of a stable income was necessary to show that mother could provide for C.A.J.

41
According to Owens, mother did not have prescriptions for certain prescription
narcotics that she tested positive for during the termination case. In other words,
mother’s “prescription list that she gave [Owens] and the results[] [from her
narcotics-use testing] didn’t match.”
42
Owens noted that mother had been having problems with her nursing license.

25
if he was returned to her care.43 Mother did not participate in family-therapy sessions

because C.A.J.’s therapist never recommended that mother and C.A.J. attend

family-therapy sessions.44 As to mother’s ability to maintain safe and stable

housing, Owens testified that mother provided her with a leasing agreement in

October 2018. However, Owens also explained that when DFPS became involved

with C.A.J. in early 2018, mother was living in Houston, Texas, but in June 2018,

Owens was told that mother was living in Victoria with her girlfriend, Amber.

Owens then learned that mother had moved again, and at some point, during this

case, mother lived in Waco, Texas.

Regarding mother’s visits with C.A.J., Owens testified that mother had a visit

scheduled in February 2018. On the day of the visit, C.A.J. was brought to the visit

location, but mother did not timely arrive. When Owens called mother, mother told

Owens that she was about fifteen minutes away, but she showed up two hours later.

According to Owens, C.A.J. knew he was supposed to have a visit with mother that

day and he was expecting to see her, but mother was so late that C.A.J. left before

she arrived. Mother had a visit with C.A.J. in March 2018, but she cancelled her

visit with C.A.J. in April 2018. Mother then saw C.A.J. in May 2018, but Owens

43
Owens stated that mother gave C.A.J. clothes and gifts while he was in DFPS’s care.
44
C.A.J.’s therapist believed that participating in family-therapy sessions with mother
would increase C.A.J.’s misbehavior.

26
was not present at that visit. Owens did observe mother’s visit with C.A.J. in June

2018, which Owens described as “fine.” Owens noted that mother’s interaction with

C.A.J. was appropriate and C.A.J. appeared bonded with mother. C.A.J. was excited

to see mother that day, and it was clear to Owens that mother and C.A.J. loved each

other. After the June 2018 visit, mother expressed concern that C.A.J. looked sick,45

“his toenails were too long,” she did not like his haircut, and his feet smelled.

Owens, who was present at the visit, did not share those same concerns about C.A.J.

Mother next attended visits with C.A.J. on August 9, 2018, August 16, 2018,

August 22, 2018. But in September 2018, the trial court stopped mother’s visits with

C.A.J. because there was concern about C.A.J.’s misbehavior before and after his

visits with mother. Mother did attend a “Christmas visit” with C.A.J. in December

2018, and C.A.J. seemed to have a good time with mother. Mother’s girlfriend,

Amber, also attended that visit, and Owens stated that it did not appear that C.A.J.

had a bond with Amber. Visits with mother and C.A.J. remained suspended until

April 2019, when C.A.J.’s therapist recommended that visits be resumed. Mother’s

visits with C.A.J. in April and May 2019 went well. Owens expressed concern

though that whenever C.A.J. would bring up something about his foster mother

45
Owens stated that she informed C.A.J.’s foster mother at the time of the sick
“allegations” and the foster mother took C.A.J. to see a doctor who determined that
C.A.J. was fine. Owens also mentioned mother’s hygiene concerns for C.A.J., and
the foster mother took steps to address those concerns.

27
during a visit, for instance by saying, “Well, my mom,” mother would correct him

and tell him to use the term “foster mom” instead of “mom.” (Internal quotations

omitted.) This caused C.A.J. to be “taken aback.” Owens noted that C.A.J. said

“good things about [his] foster parents” during his visits with mother.

Regarding the suspension of mother’s visits with C.A.J. during the pendency

of the termination case, Owens stated that while C.A.J. was at West Oaks, his contact

with mother was cut off during the latter part of his stay, and after that occurred,

C.A.J. started telling his therapist that he was angry with mother and began talking

about wanting to die and wanting to kill mother. But C.A.J. also missed mother

while at West Oaks, and according to Owens, being cut off from mother during his

stay at West Oaks could have impacted C.A.J.’s misbehavior during that time.

After C.A.J. was discharged from West Oaks and placed in a foster home,

C.A.J. saw mother in March 2018 for a visit. Following that visit with mother,

C.A.J.’s misbehavior escalated. He started acting disrespectfully and aggressively

at school and at home, using profanity, and “taking things that didn’t belong to him.”

According to Owens, this misbehavior by C.A.J. was more than “the

typical . . . limit-testing behavior[]” that children normally exhibit. C.A.J.’s

behavior was centered around having contact with mother.46

46
Owens explained that when C.A.J. did not have contact with mother during the
termination case, he would “do normal five-year-old things.”

28
Owens also testified that beginning in April 2018, after C.A.J. would have a

telephone call with mother, he acted out more, was more disrespectful to his foster

family, “started taking things that didn’t belong to him,” started lying more, and

began misbehaving in school. This trend of misbehavior continued to escalate after

a visit with mother. C.A.J. also started using “racial slurs” directed at his foster

family and his teacher. C.A.J.’s misbehavior prompted him to be taken to a

psychiatric hospital in May 2018, where he stayed about a month for treatment.47

Although his misbehavior subsided for a bit after he was discharged from the

psychiatric hospital, it eventually returned and was again exhibited after C.A.J.’s

visits with mother. For instance, C.A.J. would have “meltdowns that [would] last

over an hour” and he would threaten himself and mother. C.A.J. also started acting

out before his visits with mother. C.A.J. would say to his foster family such things

as “why do I have to go to these stupid visits” or “I told you . . . I didn’t want to see

her.” C.A.J would also hit his head on the wall. Then, after his visits with mother,

C.A.J. would have “total meltdowns” and “literally tear up his bedroom.” Such

misbehavior was concerning, and his visits with mother were stopped based on his

therapist’s recommendation. When C.A.J. was told that his visits with mother would

be stopped, he was “okay” with it.

47
According to Owens, C.A.J. was admitted to the psychiatric hospital because of his
erratic behavior. He had made threats toward his foster parents, had threatened to
harm himself, other kids at school, and his teacher, and was using racial slurs.

29
According to Owens, after C.A.J.’s visits with mother were suspended, C.A.J.

“settle[d] down” and she would not receive as many reports of C.A.J. exhibiting

aggressive behavior. However, after C.A.J.’s “Christmas visit” with mother, in

December 2018, C.A.J. tore up everything that mother brought him. Further, when

visits with mother resumed in April 2019, C.A.J.’s misbehavior started again both

before and after his visits with mother.

During her testimony, Owens expressed concern about mother’s parental

abilities due to mother’s “multiple rehab[] [stays] and . . . relapses” because such

difficulties did not indicate the stability that C.A.J. needed. Owens stated that

mother’s narcotics use, and alcohol use had placed C.A.J. in danger, and the fact that

C.A.J. ingested cocaine while in mother’s care was particularly dangerous. This

termination case was the fourth time that DFPS had to remove C.A.J. from mother’s

care. C.A.J. needed a safe and stable environment where his medical needs could

be taken care of. Owens noted that C.A.J. had been participating in therapy since he

came into DFPS’s care, particularly to address his emotions and misbehavior,

including his meltdowns. C.A.J. had received psychiatric treatment in every

placement he had been in while in DFPS’s care. And C.A.J. had several

psychological evaluations completed while in DFPS’s care. At the time of trial,

C.A.J. took certain medications for ADHD.

30
According to Owens, mother’s parental rights to C.A.J. should be terminated

because C.A.J. needed permanency and a safe, stable, narcotics-free environment

where he could be taken care of, not harmed, and where he could grow, be happy,

and prosper. C.A.J. should not be in a home where he feels like there is a possibility

that he will be removed and placed in DFPS’s care again.

C.A.J.’s Foster Mother

C.A.J.’s current foster mother testified that she, C.A.J., and her husband,

C.A.J.’s foster father, lived together in a home. C.A.J. started living with his current

foster family during the last week in November 2018, when he was six years old. At

the time of trial, C.A.J. had been living with his foster family for about eight months.

C.A.J.’s foster mother was told that C.A.J. had been struggling with his misbehavior

in his previous foster home and that he had threatened another child in the home.

After C.A.J. was placed in her home, another foster child, a thirteen-year-old, was

also placed in the home as well. C.A.J.’s foster mother was told that the

thirteen-year-old foster child had “a failed adoption,” his adoptive parents had “put

him back into foster care in January of 2018,” and he had been in a group home.

C.A.J’s foster mother was not told that the thirteen-year-old foster child had been

sexually abused in the past.

Regarding the inappropriate sexual touching incident between C.A.J. and the

thirteen-year-old foster child, C.A.J.’s foster mother explained that on the evening

31
of December 25, 2018, the thirteen-year-old foster child told her and her husband

that he had engaged in inappropriate sexual touching with C.A.J. and that “he didn’t

want it to happen anymore.” C.A.J.’s foster parents talked to the thirteen-year-old

foster child about what had happened, how it started, and why it started, and the

thirteen-year-old foster child disclosed “that there was some previous abuse from his

own family” that C.A.J.’s foster parents had not been told about. C.A.J.’s foster

parents immediately separated the thirteen-year-old foster child and C.A.J. C.A.J.’s

foster mother called the DFPS caseworkers who were involved and the “CPS intake

hotline.” C.A.J.’s foster mother stayed upstairs in their house with the

thirteen-year-old foster child and C.A.J.’s foster father went and sat downstairs with

C.A.J. Because it was already around 9:00 p.m. when the information was disclosed

and reported, that night, C.A.J.’s foster mother slept downstairs on the couch outside

the thirteen-year-old foster child’s bedroom and C.A.J.’s foster father and C.A.J.

both slept upstairs. The foster parents set up two baby monitors in each bedroom

“to make sure that no one was crossing paths.”

On December 26, 2018, C.A.J.’s foster parents contacted C.A.J.’s therapist,

who spoke to C.A.J. that day, and C.A.J.’s foster parents discussed with the therapist

what additional support C.A.J. might need as a result of the inappropriate sexual

touching incident. C.A.J. and his foster mother also went to stay at a friend’s home

by themselves for about ten to thirteen days, while C.A.J.’s foster father and the

32
thirteen-year-old foster child stayed at the family’s home until another placement

was found for that child. C.A.J.’s foster mother explained that this allowed for at

least one parent to remain with each child and ensured that C.A.J. and the

thirteen-year-old foster child no longer had any interaction. It was decided that

C.A.J. would stay with his foster mother because he would usually seek her out if he

needed comforting or if he was struggling with something.

C.A.J.’s foster mother also testified that she and her husband explained to

C.A.J. why he and his foster mother would be staying temporarily at a friend’s home,

and they told him that he could talk about the inappropriate sexual touching incident

with them, that it was safe for him to talk to them, and he could ask any questions

that he needed to. Additionally, they told C.A.J. that if he did not feel comfortable

talking to them, he could talk to his therapist. C.A.J.’s foster mother stated that in

her previous training about trauma-informed care, she was taught that when a foster

parent talked to a child about sexual abuse, it was not the foster parent’s job to

investigate or ask questions, the foster parent’s job was to support the child and to

let the child know that he was okay, that he was safe, and that it was okay to have

feelings about whatever was happening. Following the inappropriate sexual

touching incident, C.A.J.’s therapist did not have concerns about C.A.J. engaging in

inappropriate interactions or behavior with other children.

33
C.A.J.’s foster mother further explained that DFPS’s investigation determined

that the thirteen-year-old foster child was the perpetrator of the inappropriate sexual

touching incident. C.A.J.’s foster mother stated that had she and her husband known

about the thirteen-year old foster child’s sexual-abuse history, they would not have

had the children interact in the same way. However, without being informed of the

sexual-abuse history, they could not have known that allowing C.A.J. and the

thirteen-year-old foster child to play video games upstairs together, play outside

together, or to campout in the backyard in a tent could have been problematic.

As to C.A.J. in general, his foster mother reported that when C.A.J. first

entered his current foster home, he had a hard time listening to any direction that

was given and if he was “told no to something, it would trigger a large meltdown.”

A meltdown usually involved C.A.J. throwing himself on the floor, complaining

about whatever was happening, using foul language toward his foster mother,

throwing things, including things at his foster mother, tearing apart his room, ripping

his bed off of its box spring and taking the sheets off, dumping every toy out of his

toy box, and breaking toys. A meltdown could last anywhere from forty minutes to

four hours. During a meltdown, C.A.J.’s foster mother would “stand in the same

space as [C.A.J.] and let him know that the behavior he was having was not okay.”

She would talk to C.A.J. about “whatever was upsetting him” and that “breaking

things [was] not okay.” She would usually let C.A.J. finish having a meltdown and

34
then discuss with him afterward “what . . . [he] could have done differently.” It was

important for C.A.J.’s foster mother to stay in the same room with him while he was

having a meltdown so that she could make sure that he was safe and that he was not

going to hurt himself because he had hit himself in the past and had tried to hit his

head on the wall multiple times. If C.A.J. was ever going to hurt himself, she would

step in and hold him. She would also ask if he needed something different, like a

drink of water or a stuffed animal. C.A.J.’s “really bad tantrums” lasted until about

January 2019. At that point, a lot of his meltdowns were under control, and they

mostly just consisted of argumentative crying. In C.A.J.’s foster mother’s opinion,

the consistent structure and boundaries that were set and practiced in the home

helped curb C.A.J.’s meltdowns, as did letting C.A.J. know that he could talk to his

foster parents and that “nobody was going to be upset with him” because of his

feelings. From January 2019 until April 2019, C.A.J.’s foster mother stated that

C.A.J. was struggling in school behaviorally, but he was doing well academically.

At home, he was just displaying his “normal . . . argumentative behavior[].”

According to C.A.J.’s foster mother, however, when C.A.J. began his visits

with mother again in spring 2019, C.A.J. would become upset and start to say things

like “you’re not my mom, or you can’t tell me what to do, or I don’t have to listen

35
to you.”48 C.A.J. would also take the things that mother gave him at their visits and

“use them in excess and break them.” Before his visits with mother, C.A.J. would

say things like “I don’t want to go, or this is stupid, why do I have to [go].” And

after visits, C.A.J. would have anxiety and would not know what to do. For instance,

C.A.J. did not know if he could show his foster parents the things that he received

from mother or if he could tell them about his visits. His foster parents would tell

him that he could always talk to them about his visits with mother. C.A.J.’s foster

mother stated that she and her husband had never tried to dissuade C.A.J. from

talking about mother and they had encouraged C.A.J. to talk freely about mother.

She told C.A.J. that “his mom is his mom and that would never change, and that she

loves him[,] and he loves her, and that’s okay.” C.A.J. had a “photo box” that his

foster parents looked at with him, and he would tell them about his memories with

mother and stories about his sister and his grandparents.

C.A.J.’s foster mother stated that she hoped that C.A.J. would be placed

wherever he would be the safest, and if it was determined that he could not return to

mother’s care, then she and her husband would like to adopt him. If C.A.J. continued

living with his current foster family, they would continue to support him through

therapeutic interventions, behavior modifications at home, and redirection support.

48
C.A.J.’s foster mother testified that neither she nor her husband told C.A.J. that he
had to call them “mom” and “dad.” C.A.J. could call his foster parents whatever he
felt comfortable calling them.

36
C.A.J.’s foster mother explained that she would continue to take C.A.J. to therapy

sessions and help him participate in group therapy if desired. C.A.J. had “[a]

lot . . . happen[] in his life,” and therapy provided him with “a safe place to talk about

that.”49 She would also continue to take C.A.J. to doctor’s appointments. At the

time of trial, C.A.J. was taking two medications, and C.A.J.’s foster mother believed

that the medications helped regulate C.A.J.’s behavior.

C.A.J.’s foster mother noted that neither she nor her husband had a history

with cocaine use, alcohol abuse, or prescription-narcotics abuse. She had never been

intoxicated and neither she nor her husband had ever been so intoxicated that they

were rendered unconscious. C.A.J.’s current foster home was a stable environment.

In his foster mother’s opinion, it was important for C.A.J. to be in a home that was

free from alcohol or narcotics abuse and to have caregivers that were mentally and

physically present.

C.A.J.’s foster mother did explain that in February 2019, while she was out of

town for a night, C.A.J.’s foster father forgot to give C.A.J. his medications in the

morning. At some point that day, C.A.J. told his foster father that he was going to

play with a friend across the street, but when the foster father went to check, C.A.J.

49
C.A.J.’s foster mother noted that C.A.J. was placed in his current foster home during
the last week in November 2018, and she took him to see a therapist the first week
in December 2018. His foster mother also took C.A.J. to his yearly psychological
evaluation in 2019 as instructed by DFPS. And she took him to see his primary care
physician and for appointments with his psychiatrist.

37
was not there. C.A.J.’s foster father called his wife to see if she knew what other

friends C.A.J. would have gone to play with, and C.A.J.’s foster mother told him

about two other neighborhood homes because “sometimes all of the kids run

together.” C.A.J.’s foster father was then able to find C.A.J. C.A.J.’s foster mother

explained that usually C.A.J. was “pretty good about coming home and saying,

Mom, I’m going here, or can I go here, and letting [them] know.” But also C.A.J.’s

foster mother knew the parents at the homes that C.A.J. played at and she

communicated with them. She was comfortable that those parents could provide

adequate supervision for C.A.J. while he played with his friends.

Mother

Mother testified that she had two children: C.A.J. and M.W., C.A.J.’s sister,

who was seventeen years old at the time of trial. Mother stated that she was

employed at a restaurant as a server,50 and she lived in Portland, Texas. Although

mother had lived in Portland since October 2018, she also sought treatment at

multiple rehabilitation facilities located in other areas of Texas during the pendency

of the termination case. At the time of trial, mother’s nursing license was delinquent,

but according to mother, it had not been revoked. Mother stated that she received

50
Mother stated that she had also worked at a treatment center during the pendency of
the termination case.

38
an FSP in February 2018 that provided her with a list of requirements which she

believed she had completed.

Mother also testified that she had a “better support system” in place at the time

of trial than she had in the past. Her support system included her best friend, Robert,

her parents, her girlfriend, Amber, her sponsor, and “people at work.”

Regarding her criminal history, mother testified that in 2002 she was

convicted of the offense of theft.51 On March 3, 2003, mother was arrested for the

offenses of possession of marijuana, theft, and “forgery due to fraud or harm.”52 On

May 30, 2003, she was arrested for the offense of “stealing and receiving a stolen

check,” and on October 14, 2003, she was arrested for the offense of possession of

a controlled substance.53 At some point in 2003, mother was convicted of the offense

of forgery of a financial instrument and her punishment was assessed at confinement

51
Certain exhibits that the trial court admitted into evidence state that on October 9,
2002, mother entered a plea of nolo contendere to the misdemeanor offense of theft.
Mother was convicted of the misdemeanor offense of theft, and her punishment was
assessed at confinement for five days.
52
Scott’s CPS Investigation Report states that on March 3, 2003, mother was arrested
for the offenses of possession of marijuana, theft, and “forgery to defraud or
harm . . . another.”
53
The trial court admitted into evidence a copy of a February 5, 2004 judgment stating
that mother pleaded guilty to the felony offense of possession of a controlled
substance, namely methamphetamine, weighing less than one gram, which had
occurred on October 14, 2003. The trial court assessed her punishment at
confinement for 180 days. Certain other exhibits that the trial court admitted into
evidence state that on February 5, 2004, mother pleaded guilty to the felony offenses
of forgery and possession of a controlled substance and her punishment was
assessed at confinement for 180 days.

39
for 180 days.54 Further, in April 2004 and May 2004, mother was convicted of

multiple offenses of forgery of a financial instrument and she was sentenced to eight

months confinement for one offense and nine months confinement for the other

offense.55 In June 2011, mother was arrested for the offense of driving while

intoxicated, and in June 2012, when C.A.J. was an infant, mother was placed on

community supervision for twelve months related to that offense.56 Additionally, on

April 28, 2012, when C.A.J. was five weeks old, mother was arrested for the offense

of assault, but, according to mother, the criminal charges were later dismissed.57 On

54
Scott’s CPS Investigation Report states that mother was arrested for the offense of
forgery of a financial instrument on October 14, 2003. And certain other exhibits
that the trial court admitted into evidence state that on December 11, 2003, mother
was convicted of “3 counts” of the felony offense of debit card abuse and the felony
offense of “[f]raudulent [u]se or [p]ossession of [i]dentifying [i]nformation” and her
punishment was assessed at confinement for six months.
55
Certain exhibits that the trial court admitted into evidence state that on May 28,
2004, mother was convicted of the felony offense of forgery and her punishment
was assessed at confinement for nine months. Further, the exhibits state that on
June 16, 2004, mother was convicted of another felony offense of forgery and her
punishment was assessed at confinement for eight months. And on October 4, 2004,
mother was convicted of the felony offense of forgery of a commercial instrument
or check and her punishment was assessed at confinement for one year. Mother was
also ordered to pay $2,923 to the complainant.
56
The trial court admitted into evidence a copy of a February 28, 2012 judgment
stating that mother pleaded guilty to the offense of driving while intoxicated, which
occurred on June 11, 2011. The trial court assessed mother’s punishment at
confinement for 180 days, suspended mother’s sentence, and placed her on
community supervision for twelve months.
57
The trial court admitted into evidence a copy of a judgment stating that mother
pleaded guilty to the offense of assault of a family member, which occurred on April
28, 2012. The trial court deferred adjudication of mother’s guilt and placed her on
community supervision for twenty-four months. As to that incident, mother stated
40
June 27, 2016, mother was arrested for the offense of driving while intoxicated with

a child. At trial, mother admitted to consuming alcohol that day and “end[ing] up

unconscious behind the wheel” with C.A.J. in the car. Mother also testified that in

January 2019, she was “pulled over on the side of the road” by a law enforcement

officer. Mother stated that she was not intoxicated that day; instead, her “blood

sugar[] . . . was 45.” But she stated that she “couldn’t even drive” at the time.

Regarding her history with DFPS, mother testified that DFPS received a

referral in fall 2012, when mother was living in Harlingen, Texas, alleging that

mother was “passed out on the floor of [her] apartment” while C.A.J., an infant, was

asleep in his baby swing. DFPS received a second referral in November 2012, and

C.A.J. was removed from mother’s care after she was transported to the hospital.

According to mother, she had taken medication for a headache or migraine and had

a reaction to it. The person who owned the daycare that C.A.J. attended at the time

arrived at mother’s home that day and called for emergency assistance because

mother was unconscious, asleep, or “passed out” with C.A.J. in her care. C.A.J. was

later returned to mother’s care in January 2013, but then re-removed until October

2013, when he was again returned to her care.

that her girlfriend at the time was changing C.A.J.’s diaper when mother told her
that their relationship was over. Her girlfriend then “pushed [mother] into the
laundry room” and mother grabbed a “[large]-sized detergent and [was] able to get
her [girlfriend] away from” her.

41
Mother further explained that DFPS became involved with her and C.A.J.

again in June 2016 when mother was found “[p]assed out” in her car at a red light

with C.A.J. in the back seat. Mother noted that there was alcohol in her car and that

she was unconscious. She clarified that C.A.J. was buckled in his car seat when she

stopped at the light, but she stated that C.A.J. could get out of his car seat on his

own. Mother could not say whether or not she had alcohol in her system that day,

but she stated that she was not driving while intoxicated and her low blood sugar

had caused her to pass out.58 Mother explained that she was arrested on June 27,

2016 and charged with a felony offense, but the case against her was dismissed.

C.A.J. was removed from mother’s care on June 27, 2016 because of the

above-described incident and then returned to mother’s care later in 2016.

Regarding the circumstances involved in the termination case, mother

testified that she took C.A.J. to West Oaks in January 2018 because he was

hallucinating, said that he wanted to kill mother and himself, was exhibiting

aggressive behavior, and had been lying. Mother explained that C.A.J. would say

that he “want[ed] to die” when “he was mad and he didn’t get his way.” C.A.J. was

also getting in trouble at school. Such misbehavior had been going on for about six

58
A supplemental note to the “Incident/Investigation Report” from the June 27, 2016
incident involving mother states that mother’s blood alcohol concentration that day
was 0.29.

42
to eight weeks before mother took him to West Oaks, meaning that C.A.J.’s

misbehavior started around November 2017.59

In January 2018, C.A.J. was removed from mother’s care. When mother

spoke to DFPS Investigator Scott, she admitted to using cocaine. But she did not

know how C.A.J. could have ingested cocaine, and she stated that he did not get

cocaine from her. Mother conceded that her cocaine use was dangerous and exposed

her to being arrested and to the possibility of incarceration.

As to mother’s history with substance abuse and her participation in various

substance-abuse treatments, mother noted that she had been “an addict” for “a lot of

[her] adult life.” She first started abusing alcohol in 2012. She explained that in

2012, after C.A.J. was removed from her care by DFPS, mother sought treatment for

alcohol abuse at Charlie’s Place Recovery Center in Corpus Christi. Mother got

sober in 2013 and then relapsed by consuming alcohol again in 2016. After C.A.J.

was removed from her care in June 2016, mother sought treatment for alcohol abuse.

In November 2017, mother started using narcotics. Mother used cocaine with a

doctor that she worked with, and she engaged in cocaine use while C.A.J. was with

his babysitter. Despite her narcotics-use testing results, mother denied engaging in

daily cocaine use. But mother stated that she tested positive for cocaine use while

59
Mother stated that she began using cocaine in November 2017, while C.A.J. was in
her care. Mother also admitted that she had used cocaine on January 12, 2018, while
C.A.J. was being treated at West Oaks.

43
she was working at a hospital as a registered nurse and a default order was later

entered against her which revoked her nursing license.60

After C.A.J. was removed from mother’s care in January 2018, mother entered

Nexus Recovery in Dallas for sixty days and completed the program. After leaving

60
The trial court admitted into evidence a copy of the “Formal Charges” brought
against mother by the Texas Board of Nursing which states:
On or about November 28, 2017, while employed as a Registered
Nurse with Ben Taub Hospital - Emergency Center, Houston, Texas,
[mother] lacked fitness to practice nursing in that she exhibited signs
of impaired behavior while on duty, including, but not limited to:
overly exaggerated and confusing responses. [Mother’s] condition
could have affected her ability to recognize subtle signs, symptoms or
changes in patients’ conditions, and could have affected her ability to
make rational, accurate, and appropriate assessments, judgments, and
decisions regarding patient care, thereby placing the patients in
potential danger.
....
[Further,] [o]n or about November 28, 2017, while employed as a
Registered Nurse with Ben Taub Hospital - Emergency Center,
Houston, Texas, [mother] engaged in the intemperate use of [c]ocaine
in that she produced a specimen for a drug screen which resulted
positive for [c]ocaine. Furthermore, [mother] admitted to facility staff
that she would test positive for [c]ocaine. Unlawful possession of
[c]ocaine is prohibited by Chapter 481 (Controlled Substances Act) of
the Texas Health & Safety Code. The use of [c]ocaine by a [n]urse,
while subject to call or duty, could impair the nurse’s ability to
recognize subtle signs, symptoms, or changes in a patient’s condition,
and could impair the nurse’s ability to make rational, accurate, and
appropriate assessments, judgments, and decisions regarding patient
care, thereby placing a patient in potential danger.
Mother testified that she petitioned to have an order revoking her nursing license set
aside, and she had been granted a rehearing. Thus, at the time of trial, it did not
appear that mother’s nursing license had been formally revoked. Mother did admit
to previously being placed on probation by the Texas Board of Nursing for failing
to submit to random narcotics-use testing.

44
Nexus Recovery, mother relapsed by using prescription Xanax. After her relapse,

mother sought treatment at Cenikor rehabilitation facility in Deer Park because she

was using benzodiazepines or Xanax “too much.” According to mother, she had

become addicted to her prescription narcotics. Mother believed that she had

successfully completed the short-term program, about three weeks, at Cenikor, but

according to mother, she was hospitalized for “blood sugar.” After her

hospitalization, mother stated that she “went back to the long-term program,” which

she estimated was about twenty-four or twenty-five days. Mother testified that if the

records from Cenikor state that she did not complete the program, then the records

are incorrect.

Mother further testified that after she left Cenikor she “stayed clean,” but she

used the prescription narcotics that had been prescribed to her. And she sought

outpatient treatment at Billy T. Cattan Recovery in Victoria while living with her

parents in Waco. Mother stated that she was unsuccessfully discharged from that

rehabilitation program because of “hospitalizations.” Mother then sought treatment

at La Hacienda in Kerrville for opioid-use disorder and sedative-use disorder

because she did not want to take the prescription narcotics that she was prescribed.

When mother entered treatment at La Hacienda in February 2019—more than one

year after C.A.J. had been removed from her care— she was not lucid, she almost

overdosed, and she was taken to the hospital. Mother successfully completed her

45
treatment at La Hacienda and was discharged on March 29, 2019. Mother then

“chose to go to extended care” in Austin. Although she was at that the Austin facility

for “a few weeks,” she was told that she could not stay because “they were too

concerned about [her] blood sugar dropping without having medical professionals

on staff.” Mother stated that she had been sober since February 21, 2019, and at the

time of trial, she was participating in a twelve-step program and had a sponsor.

Mother agreed that May 2019 was the first time during the pendency of the

termination case that she received negative narcotics-use testing results.

Regarding her health, mother testified that she had been diagnosed with

endocrine neoplasia, type 1. She stated that since 2012, when DFPS became

involved with her and C.A.J., she had reported that she had ulcerative colitis, aplastic

anemia, depression, tumors, pituitary issues, a pancreatic tumor, pancreatic pain, and

hypoglycemia. Mother stated that she went to the emergency room between five

and ten times since January 2018. While in the emergency room, she was sometimes

given narcotics as well as on-going prescriptions for narcotics.

As to C.A.J., mother noted that any time she was unconscious, whether due to

a medical issue or alcohol or narcotics use, she was unable to provide care for C.A.J.

and that could be dangerous for C.A.J. And she admitted that some of her choices

in the past had put C.A.J. at risk.

46
Mother’s FSP

The trial court admitted into evidence a copy of mother’s FSP, which states

that on January 12, 2018, DFPS received a referral for negligent supervision of

C.A.J. by mother. The referral alleged C.A.J. had tested positive for cocaine use and

that “there may be drugs in the home.” Regarding “[i]nitial concerns” of DFPS,

mother’s FSP states that mother had not “demonstrated an ability to stay sober/drug

free and in recovery to ensure that [C.A.J. would be] safe from harm,” mother’s

“drug/alcohol addiction affect[ed] the quality of care that she [was] able to provide”

to C.A.J., mother had a prior history with DFPS “in which there were [other]

removals” of C.A.J. from mother’s care, mother “admitted to using cocaine,” and

mother’s “drug addiction impair[ed] her protective capacity to take care of [C.A.J.]”

Mother’s FSP lists the following tasks that she was required to complete

during the pendency of the termination case: (1) provide the DFPS caseworker with

names, addresses, and telephone numbers of any relatives or friends that may be a

possible placement for C.A.J.; (2) attend all court hearings and permanency

conference meetings; (3) maintain contact with the DFPS caseworker in person or

via telephone at least monthly; (4) notify the DFPS caseworker within forty-eight

hours of any change in contact information or housing; (5) be available by

reasonable request and allow the DFPS caseworker to conduct random and

scheduled home visits; (6) have stable employment or income to meet the family’s

47
basic needs; (7) provide the DFPS caseworker with paystubs or income verification

every month; (8) maintain stable housing, that is safe, clean, and free from hazards,

and demonstrate the ability to keep a stable environment for the family; (9) provide

the DFPS caseworker with housing agreement or utility bill; (10) participate in

supervised visits with C.A.J. and if mother is unable to make a scheduled visit, notify

the DFPS caseworker twenty-four hours in advance; (11) actively participate in

parenting classes in person and successfully complete the parenting classes and

provide the DFPS caseworker with a certificate of completion within seven days of

the last class date; (12) demonstrate learned behaviors from the parenting class

during family visits; (13) sign a release of information so that DFPS can have access

to mother’s records; (14) submit to random narcotics-use testing; (15) participate in

family-therapy sessions with C.A.J.; (16) attend and actively participate in a “drug

assessment” and follow all recommendations given; (17) successfully complete the

treatment program at Nexus Recovery in Dallas; and (18) participate in a

psychological and psychiatric evaluation and follow all recommendations.

C.A.J.’s 2019 Psychological Evaluation

The trial court admitted into evidence a copy of C.A.J.’s psychological

evaluation from February 2019.61 The evaluation states that C.A.J. and his current

61
The trial court also admitted into evidence copies of other earlier psychological
evaluations of C.A.J.

48
foster mother were present for the evaluation. It notes that C.A.J. appeared well

groomed and was happy and engaging. His appearance was appropriate for his age,

and he was cooperative and respectful. He maintained eye contact, his thought

process was logical, his attention was sufficient, and he appeared insightful. C.A.J.

reported that he liked playing outside, sports, riding a bicycle, and baseball.

C.A.J.’s foster mother described C.A.J.’s environment with his foster family

as normal, stable, and laid back. She reported that C.A.J. was adjusting well to the

home and the family had established a consistent routine. C.A.J.’s foster mother

worked from home and his foster father worked outside of the home from

approximately 7:00 a.m. to 6:00 p.m. C.A.J. called his foster parents “mom” and

“dad.” C.A.J. did not like to be left with other people and did not like strangers.

When C.A.J. would feel uncomfortable, he sought out his foster parents. C.A.J. was

proud of his foster family and “like[d] that he [was] part of a big family,” which

included nineteen aunts and uncles.

C.A.J.’s foster mother also reported that C.A.J. had friends in his

neighborhood and at school and his friends were positive influences. She stated that

when C.A.J. would be “in his own space” he could be self-centered and “d[id] not

like to share.” But C.A.J. did “fairly well when he [was] outside of his own space

and [he was] more willing to share” under those circumstances. C.A.J. was an

outgoing child.

49
C.A.J attended elementary school, and in 2019, he was in the first grade.

C.A.J.’s foster mother reported that he received “straight A’s.” C.A.J. enjoyed

school and felt confident in his ability to understand the concepts that were being

taught. His strengths were math and art, and art was calming for C.A.J. When C.A.J.

first began living with his foster family, his foster mother received daily notes from

school about C.A.J.’s misbehavior, but that had decreased, and he went an entire

month without any notes from school.

Regarding mother, C.A.J.’s foster mother reported that mother’s influence

affected C.A.J.’s behavior. His behavior would change after he had interactions with

mother. Mother corrected C.A.J. and told him to call his foster parents by their first

names. After visits with mother, C.A.J. acted out, used “foul language,” and was

disrespectful. C.A.J. had a “the world revolves around me” attitude, especially after

a visit with mother.

C.A.J.’s foster mother also reported, related to mother’s influence on C.A.J.’s

behavior, that C.A.J. hit a teacher, laughed at a teacher, and talked over a teacher at

school. And he had pushed another child at school and was involved in a physical

altercation with a neighborhood child which the other child allegedly instigated.

C.A.J. had verbal and physical meltdowns when he did not get his way. C.A.J.,

while in the care of his current foster parents, saw a therapist once a week.

50
The “Conceptualizations” section of C.A.J.’s evaluation states the following:

[C.A.J.] is a six-year old [child] who is presently residing with his foster
parents . . . since December 2018. [C.A.J.] has a reported history of
trauma that includes neglect that led to him being removed from his
mother’s care and sexual abuse while in foster care. . . . [C.A.J.] has
displayed significant behavior difficulties in a previous foster home as
well as at his current placement. [His foster mother] described [C.A.J.]
as having difficulty with attention, being defiant, not following the
rules, adapting to change, [being] fidgety, [being] easily distracted,
pushing boundaries, [having] physical and verbal aggression, and
having strong emotional reactions to events and stressors. She further
noted [that] he was hospitalized for making comments that he heard
voices that told him to do things, [having a] suicide attempt and being
under the influence of cocaine. [C.A.J.] has adjusted well to his
[current] foster home and he appears to be doing well. [C.A.J.] has [a]
history of significant emotional reactions as reported by previous foster
parents as noted in previous psychological [evaluations] after
visitations with his mother. Close monitoring of any visitations with
mother is suggested as well as therapy sessions shortly after [C.A.J.’s
visits with mother which would] allow [C.A.J.] the opportunity to
process his emotions, if any contact with mother continues. His
emotional reactions after contact with his mother has greatly impacted
his ability to function at school and his placements as it takes days for
[C.A.J.] to be able to regain some emotional stability.

. . . [C.A.J.] yielded several at-risk and clinically significant scores in
areas such as hyperactivity, atypicality, attention problems, adaptive
skills[,] and social skills . . . . This may indicate [that C.A.J.] may have
difficulty maintaining necessary levels of attention at school and this
may disrupt academic performance and functioning in other
areas. . . . [C.A.J.] meets the criteria for [ADHD]. . . . According to
the [psychological testing] results, [C.A.J.] has difficulty maintaining
attention as well as experiencing hyperactivity/attention problems and
his difficulties are impacting his school and home life. He has a
reported history of being diagnosed with ADHD. [C.A.J. also] meets
the criteria for [ODD]. [C.A.J.] often loses [his] temper, [is] irritable,
refuses to comply[,] or has problems with authority. It was reported
[that] he has a history of becoming physically aggressive towards
authority and peers. He was previously diagnosed with ODD.
51
The evaluation provides the following diagnoses for C.A.J.: ADHD, ODD,

DMDD, and unspecified trauma and stressor related disorder. The evaluation

recommends that C.A.J. participate in art therapy, individual therapy, family

therapy, and athletic programs. More specifically, regarding therapy, the evaluation

states that C.A.J. would benefit from participating in individual therapy on a

consistent basis with a therapist who is adept in cognitive behavioral therapy or art

therapy. Therapy should address “coping with [his] parent’s neglect, verbalizing

feelings, emotional regulation, and . . . strategies to manage [his] ADHD

symptomology.” It also recommended that C.A.J.’s caretaker employ an

authoritative parenting style with him, meaning that his caretaker should set high yet

achievable expectations and provide clear guidelines for C.A.J. while still being

responsive and nurturing through encouragement, praise, positive reinforcement,

and affection.62 Additionally, C.A.J. should participate in extracurricular activities,

with a focus on non-contact sports to minimize the possibility of altercations. Any

62
DFPS Caseworker Owens testified that a previous psychological evaluation
recommended that C.A.J. have structure, a nurturing environment, close
supervision, and constant discipline when he was misbehaving. It also
recommended that C.A.J. participate in play therapy. Owens stated that another
prior psychological evaluation recommended therapy to address C.A.J.’s anger
issues.

52
educational needs should also be addressed, including certain listed accommodations

at school.63

Sufficiency of Evidence

In her first issue, mother argues that the trial court erred in terminating her

parental rights to C.A.J. because the evidence is legally and factually insufficient to

support the jury’s finding that termination of her parental rights was in the best

interest of C.A.J. See TEX. FAM. CODE ANN. § 161.001(b)(2).

A parent’s right to “the companionship, care, custody, and management” of

her child is a constitutional interest “far more precious than any property right.”

Santosky v. Kramer, 455 U.S. 745, 758–59 (1982) (internal quotations omitted). The

United States Supreme Court has emphasized that “the interest of [a] parent[] in the

care, custody, and control of [her] child[] . . . is perhaps the oldest of the

fundamental liberty interests recognized by th[e] Court.” Troxel v. Granville, 530

U.S. 57, 65 (2000). Likewise, the Texas Supreme Court has concluded that “[t]his

natural parental right” is “essential,” “a basic civil right of man,” and “far more

63
We note that additional witnesses testified at trial on behalf of both parties. The
Court has reviewed the complete record in this appeal, including all testimony and
evidence presented to the trial court. See TEX. R. APP. P. 47.1; Obernhoff v. Nelson,
No. 01-17-00816-CV, 2019 WL 4065017, at *18 n.19 (Tex. App.—Houston [1st
Dist.] Aug. 29, 2019, no pet.) (mem. op.); Sullivan v. Arguello Hope & Assocs.,
PLLC, No. 03-18-00144-CV, 2018 WL 6424200, at *1 n.2 (Tex. App.—Austin Dec.
7, 2018, no pet.) (mem. op.) (“Because the parties are familiar with the facts of the
case and its procedural history, we do not recite them in this opinion except as
necessary to advise the parties of the Court’s decision and the basic reasons for it.”).

53
precious than property rights.” Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)

(internal quotations omitted). Consequently, “[w]e strictly construe involuntary

termination statutes in favor of the parent.” In re E.N.C., 384 S.W.3d 796, 802 (Tex.

2012).

Because termination of parental rights is “complete, final, irrevocable and

divests for all time that natural right . . . , the evidence in support of termination must

be clear and convincing before a court may involuntarily terminate a parent’s rights.”

Holick, 685 S.W.2d at 20. Clear and convincing evidence is “the measure or degree

of proof that will produce in the mind of the trier of fact a firm belief or conviction

as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN.

§ 101.007; see also In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002). Because the

standard of proof is “clear and convincing evidence,” the Texas Supreme Court has

held that the traditional legal and factual standards of review are inadequate. In re

J.F.C., 96 S.W.3d at 264–68.

In conducting a legal-sufficiency review in a termination-of-parental-rights

case, we must determine whether the evidence, viewed in the light most favorable

to the finding, is such that the fact finder could reasonably have formed a firm belief

or conviction about the truth of the matter on which DFPS bore the burden of proof.

Id. at 266. In viewing the evidence in the light most favorable to the finding, we

“must assume that the factfinder resolved disputed facts in favor of its finding if a

54
reasonable factfinder could do so,” and we “should disregard all evidence that a

reasonable factfinder could have disbelieved or found to have been incredible.” In

re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (internal quotations omitted). But this

does not mean we must disregard all evidence that does not support the finding. In

re J.F.C., 96 S.W.3d at 266. Because of the heightened standard, we must also be

mindful of any undisputed evidence contrary to the finding and consider that

evidence in our analysis. Id. If we determine that no reasonable trier of fact could

form a firm belief or conviction that the matter that must be proven is true, we must

hold the evidence to be legally insufficient and render judgment in favor of the

parent. Id.

In conducting a factual-sufficiency review in a termination-of-parental-rights

case, we must determine whether, considering the entire record, including evidence

both supporting and contradicting the finding, a fact finder reasonably could have

formed a firm conviction or belief about the truth of the matter on which DFPS bore

the burden of proof. In re C.H., 89 S.W.3d 17, 25–26 (Tex. 2002). We should

consider whether the disputed evidence is such that a reasonable fact finder could

not have resolved the disputed evidence in favor of its finding. In re J.F.C., 96

S.W.3d at 266. “If, in light of the entire record, the disputed evidence that a

reasonable factfinder could not have credited in favor of the finding is so significant

that a factfinder could not reasonably have formed a firm belief or conviction, then

55
the evidence is factually insufficient.” In re H.R.M., 209 S.W.3d 105, 108 (Tex.

2006) (internal quotations omitted).

In order to terminate the parent-child relationship, DFPS must establish, by

clear and convincing evidence, one or more of the acts or omissions enumerated in

Texas Family Code section 161.001(b)(1) and that termination of parental rights is

in the best interest of the child. See TEX. FAM. CODE ANN. § 161.001(b); Tex. Dep’t

of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (both elements must be

established). Multiple non-exclusive factors are considering when determining a

child’s best interest. See TEX. FAM. CODE ANN. § 263.307; Holley v. Adams, 544

S.W.2d 367, 371–72 (Tex. 1976).

In her first issue, mother argues that the evidence is legally and factually

insufficient to support the jury’s finding that termination of her parental rights was

in the best interest of C.A.J. because the jury’s best-interest finding is not supported

by the factors set out in Texas Family Code section 263.307 or Holley.

In an appeal from a judgment rendered on the basis of a jury verdict, including

a trial court’s judgment terminating a parent’s rights to her minor child, a party

cannot complain about the legal or factual sufficiency of the evidence for the first

time on appeal. See TEX. R. APP. P. 33.1(d); In re S.G., No. 01-18-00728-CV, 2019

WL 1448870, at *4 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, pet. denied)

(mem. op.). To preserve for appellate review a challenge to the legal sufficiency of

56
the evidence, a party must: (1) move for an instructed verdict; (2) object to the

submission of a jury question; (3) move for judgment notwithstanding the verdict;

or (4) move for a new trial. See Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991);

In re J.M.S., 43 S.W.3d 60, 62 (Tex. App.—Houston [1st Dist.] 2001, no pet.). To

preserve for appellate review a challenge to the factual sufficiency of the evidence,

a party must move for a new trial. See TEX. R. CIV. P. 324(b)(2), (3); Cecil, 804

S.W.2d at 510; In re J.M.S., 43 S.W.3d at 62. And the party’s motion or objection

must be reasonably specific as to the nature of the evidentiary sufficiency challenge

that is being made to preserve a sufficiency-point for appellate review. See TEX. R.

APP. P. 33.1(a); In re S.G., 2019 WL 1448870 at *4.

Here, the jury found that mother’s parental rights to C.A.J. should be

terminated,64 and thus, the trial court, in its judgment, terminated mother’s parental

rights. Although mother challenges on appeal the legal and factual sufficiency of

the evidence supporting the jury’s finding that termination of her parental rights was

in the best interest of C.A.J., she did not move for an instructed verdict, object to the

submission of a jury question, move for judgment notwithstanding the verdict, or

move for a new trial. Accordingly, we hold that she has not preserved her

64
In doing so, the jury found, by clear and convincing evidence, that mother
committed one or more of the acts or omissions enumerated in Texas Family Code
section 161.001(b)(1) and that termination of her parental rights was in the best
interest of C.A.J. See TEX. FAM. CODE ANN. § 161.001(b); Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).

57
sufficiency-complaints for our review. See In re S.G., 2019 WL 144887, at *4; In

re J.M.S., 43 S.W.3d at 62.

Managing Conservatorship

In her second issue, mother argues that the trial court erred in “disregarding

the jury’s finding [that] DFPS should not be [appointed as C.A.J.’s] managing

conservator” and in appointing DFPS as C.A.J.’s sole managing conservator because

the trial court could not override the jury’s conservatorship verdict.

The Texas Family Code provides that “[i]f the court terminates the

parent-child relationship with respect to both parents or to the only living parent, the

court shall appoint a suitable, competent adult, [DFPS], or a licensed child-placing

agency as managing conservator of the child.” TEX. FAM. CODE ANN. § 161.207(a);

see also In re S.M.G., No. 01-17-00056-CV, 2017 WL 2806332, at *8 (Tex. App.—

Houston [1st Dist.] June 29, 2017, pet. denied) (mem. op.) (“When the parents’

parental rights have been terminated, [Texas] Family Code section 161.207 governs

the appointment of a managing conservator.”). Generally, we review a trial court’s

conservatorship determination for an abuse of discretion. In re J.A.J., 243 S.W.3d

611, 616 (Tex. 2007).

Importantly, an order terminating the parent-child relationship divests the

parent of all legal rights and duties with respect to her child. See TEX. FAM. CODE

ANN. § 161.206(b); In re A.L.J., No. 01-19-00251-CV, 2019 WL 4615826, at *9

58
(Tex. App.—Houston [1st Dist.] Sept. 24, 2019, no pet.) (mem. op.). A parent with

no legal rights with respect to her child lacks standing to attack the portion of the

trial court’s order appointing DFPS as the sole managing conservator of the child.

See A.L.J., 2019 WL 4615826, at *9.

Here, we have held that mother did not preserve for our review her complaint

that the trial court erred in terminating her parental rights to C.A.J. because the

evidence is legally and factually insufficient to support the jury’s finding that

termination of her parental rights was in the best interest of C.A.J. Because mother

did not preserve her sufficiency-complaints for our review, she is bound by the trial

court’s order terminating her parental rights to C.A.J. See In re Y.V., No.

02-12-00514-CV, 2013 WL 2631431, at *1–2 (Tex. App.—Fort Worth June 13,

2013, no pet.) (mem. op.); In re R.A., Jr., No. 07-08-0084-CV, 2009 WL 77853, at

*2 (Tex. App.—Amarillo Jan. 13, 2009, no pet.) (mem. op.). As such, mother has

become a former parent with no legal rights with respect to C.A.J. See In re Y.V.,

2013 WL 2631431, at *1–2; In re R.A., Jr., 2009 WL 77853, at *2.

Having no legal rights with respect to C.A.J., we hold that mother lacks

standing to challenge the portion of the trial court’s order appointing DFPS as sole

managing conservator of C.A.J. See In re A.L.J., 2019 WL 4615826, at *9 (“Mother

does not have standing to challenge the portion of the order appointing [DFPS] as

permanent managing conservator of the children because any alleged error could not

59
injuriously affect her rights.”); In re Y.V., 2013 WL 2631431, at *1–2; In re H.M.M.,

230 S.W.3d 204, 204–05 (Tex. App.—Houston [14th Dist.] 2006, no pet.).

We overrule mother’s second issue.

Ineffective Assistance of Counsel

In her third issue,65 mother argues that the trial court erred in terminating her

parental rights to C.A.J. because her retained trial counsel did not provide her with

effective assistance at trial. See U.S. CONST. amend. VI; see also In re M.S., 115

S.W.3d 534, 544 (Tex. 2003). Mother asserts that her trial counsel did not object to

certain portions of the trial court’s charge to the jury or make proffers and counsel

did not “object to the [trial] court’s responses to the jury’s questions.”

We first address DFPS’s argument that mother cannot seek reversal of the trial

court’s judgment terminating her parental rights to C.A.J. based on any alleged

ineffective assistance of her trial counsel because mother’s trial counsel was retained

rather than appointed.66 We have previously addressed the merits of a parent’s claim

65
To the extent that mother asserts, as part of her third issue, that the trial court erred
in “not correctly charging the jury,” we hold that mother has not preserved that
complaint for appellate review. See In re B.L.D., 113 S.W.3d 340, 349–50 (Tex.
2003) (“[T]he failure to raise a complaint at trial to a jury charge waives review of
that complaint on appeal.”); In re S.G., No. 01-18-00728-CV, 2019 WL 1448870,
at *5 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, pet. denied) (mem. op.); see
also TEX. R. APP. P. 33.1; TEX. R. CIV. P. 274.
66
This issue is currently pending before the Texas Supreme Court. See In re D.T.,
593 S.W.3d 437, 439–40 (Tex. App.—Texarkana 2019, pet. granted) (holding
parent who hires own attorney cannot assert ineffective-assistance-of-counsel
complaint).

60
for ineffective assistance of counsel when the parent had retained counsel at trial.

See L.F. v. Dep’t of Family & Protective Servs., Nos. 01-10-01148-CV,

01-10-01149-CV, 2012 WL 1564547, at *12 n.9 (Tex. App.—Houston [1st Dist.]

May 3, 2012, pet. denied) (mem. op.); In re V.V., 349 S.W.3d 548, 558–61 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied); see also In re A.A.H., Nos.

01-19-00612-CV, 01-19-00748-CV, 2020 WL 1056941, at *16, *21–23 (Tex.

App.—Houston [1st Dist.] Mar. 5, 2020, pet. denied) (mem. op.); In re E.R.W., 528

S.W.3d 251, 257–61 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (non-indigent

parent may challenge judgment in suit by governmental entity to terminate

parent-children relationship based on alleged ineffective assistance of retained

counsel); In re D.J.W., 394 S.W.3d 210, 218–19, 218 n.9 (Tex. App.—Houston [1st

Dist.] 2012, pet. denied) (addressing mother’s ineffective-assistance-of-counsel

complaint and declining to hold that mother, who had retained trial counsel, could

not raise claim of ineffective assistance of counsel on appeal); Donihoo v. Lewis,

No. 01-08-099277-CV, 2010 WL 1240970, at *11 (Tex. App.—Houston [1st Dist.]

Mar. 25, 2010, pet. denied) (mem. op.) (“We recognize that the constitutional right

to effective assistance of counsel has been extended to certain civil proceedings,

61
such as termination of parental rights cases . . . .”). Thus, we will do so in this case

as well.67

The statutory right to counsel in a termination-of-parental-rights case

includes, as a matter of due process, the right to effective counsel. C.S.F. v. Tex.

Dep’t of Family & Protective Servs., 505 S.W.3d 618, 619–20 (Tex. 2016); In re

M.S., 115 S.W.3d at 544; In re A.A.H., 2020 WL 1056941, at *21. To evaluate

claims of ineffective assistance of counsel in termination-of-parental-rights cases,

the Texas Supreme Court has adopted the ineffective-assistance-of-counsel standard

applied in criminal cases and set forth by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984). See In re M.S., 115 S.W.3d at 544–

45; see also Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608,

622–23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Thus, proving a claim

of ineffective assistance of counsel requires a showing that (1) counsel’s

performance was deficient, i.e., “counsel made errors so serious that counsel was not

functioning as ‘counsel’ guaranteed by the Sixth Amendment,” and (2) the deficient

performance of counsel prejudiced the defense in a manner “so serious as to deprive

the [parent] of a fair trial, a trial whose result is reliable.” In re M.S., 115 S.W.3d at

545 (quoting Strickland, 466 U.S. at 687); see also In re H.R.M., 209 S.W.3d at 111;

67
We note that irrespective of whether we review the merits of mother’s
ineffective-assistance-of-counsel complaint, the outcome of mother’s appeal
remains unchanged. See infra.

62
In re A.A.H., 2020 WL 1056941, at *21. To establish an

ineffective-assistance-of-counsel claim, a parent must successfully show both

prongs of the test. In re M.S., 115 S.W.3d at 545; Walker, 312 S.W.3d at 622–23;

see also In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). A parent’s failure to satisfy

one prong negates the court’s need to consider the other prong. See Strickland, 466

U.S. at 697; In re E.R.W., 528 S.W.3d at 262; see also In re A.A.H., 2020 WL

1056941, at *21 (parent has burden to prove by preponderance of evidence).

In analyzing whether counsel’s performance was deficient, the Texas

Supreme Court has explained that, “tak[ing] into account all of the circumstances

surrounding the case,” a court “must primarily focus on whether counsel performed

in a reasonably effective manner.” In re M.S., 115 S.W.3d at 545 (internal quotations

omitted); see also In re H.R.M., 209 S.W.3d at 111; Walker, 312 S.W.3d at 622. A

court “must give great deference to counsel’s performance, indulging a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance, including the possibility that counsel’s actions are strategic.”

In re M.S., 115 S.W.3d at 545 (internal quotations omitted); see also In re H.R.M.,

209 S.W.3d at 111; Walker, 312 S.W.3d at 622. We may not speculate to find trial

counsel ineffective. Walker, 312 S.W.3d at 623; see also In re A.A.H., 2020 WL

1056941, at *21–22 (“An assertion of ineffective assistance will be sustained only

if the record affirmatively supports such a claim.”). Challenged conduct constitutes

63
ineffective assistance only when it is “so outrageous that no competent attorney

would have engaged in it.” In re M.S., 115 S.W.3d at 545 (internal quotations

omitted); see also In re H.R.M., 209 S.W.3d at 111; Walker, 312 S.W.3d at 622.

“Ordinarily, counsel should not be condemned as unprofessional or

incompetent without an opportunity to explain the challenged actions.” In re A.A.H.,

2020 WL 1056941, at *22 (internal quotations omitted); see also In re S.L., 188

S.W.3d 388, 395 (Tex. App.—Dallas 2006, no pet.). “Thus, when the record is silent

regarding counsel’s reasons for h[er] conduct,” as it is here, “we defer to counsel’s

decision if there is at least the possibility that the conduct could have been legitimate

trial strategy.” In re A.A.H., 2020 WL 1056941, at *22 (internal quotations omitted);

see also In re S.L., 188 S.W.3d at 395. In other words, without testimony from trial

counsel, we must presume that counsel had a plausible reason for her conduct. In re

K.H.M., 181 S.W.3d 1, 7 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

In addition to showing trial counsel’s deficient performance, a parent must

show that her trial counsel’s deficient performance prejudiced her defense. See In

re J.O.A., 283 S.W.3d at 344; In re V.V., 349 S.W.3d at 559. To satisfy this burden,

the record must permit the reviewing court to determine that there is a reasonable

probability that, but for the deficient performance, the result of the proceeding would

have been different, i.e., the parent’s parental rights to her child would not have been

terminated. In re M.S., 115 S.W.3d at 549–50; see also Medellin v. Tex. Dep’t of

64
Family & Protective Servs., No. 03-11-00558-CV, 2012 WL 4466511, at *5 (Tex.

App.—Austin Sept. 26, 2012, pet. denied) (mem. op.) (father must show “reasonable

probability that his parental rights would not have been terminated”). In this context,

“[a] reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694; see also P.W. v. Dep’t of Family &

Protective Servs., 403 S.W.3d 471, 476 (Tex. App.—Houston [1st Dist.] 2013, pet.

dism’d w.o.j.).

Mother first argues that her retained trial counsel did not provide her with

effective assistance at trial because counsel did not object to the trial court’s charge

which allowed the jury to terminate mother’s parental rights based on her purported

failure to complete her FSP. According to mother, “the record conclusively

establishe[d] [that] [m]other completed” her FSP. And her counsel’s failure to

object to the trial court’s charge because there was no evidence that mother failed to

comply with the provisions of a court order that specifically established the actions

necessary for her to obtain the return of C.A.J. prevented mother from challenging

on appeal the trial court’s broad-form submission to the jury. See TEX. FAM. CODE

ANN. § 161.001(b)(1)(O); see also In re B.L.D., 113 S.W.3d 340, 349–50 (Tex.

2003) (complaints of error in broad-form submission must be preserved by objection

at trial).

65
In its charge to the jury, the trial court instructed the jury that to terminate the

parent-child relationship between mother and C.A.J., it must have been proven by

clear and convincing evidence that termination of mother’s parental rights was in the

best interest of C.A.J. and that at least of one of the following had occurred:

• Mother “knowingly placed or knowingly allowed [C.A.J.] to remain
in conditions or surroundings which endanger[ed] the physical or
emotional well-being of [C.A.J.]”;

• Mother “engaged in conduct that knowingly placed [C.A.J.] with
persons who engaged in conduct which endanger[ed] the physical
or emotional well-being of [C.A.J.]”;

• Mother “failed to comply with the provisions of a court order that
specifically established the actions necessary for [mother] to obtain
the return of [C.A.J.] who ha[d] been in temporary managing
conservatorship of [DFPS] for not less than nine months as a result
of [C.A.J.’s] removal from [mother] under Chapter 262 (Procedures
in Suit by Governmental Entity) for the abuse or neglect of
[C.A.J.]”; or

• Mother “used a controlled substance, as defined by Chapter 481,
Health and Safety Code, in a manner that endangered the health and
safety of [C.A.J.], and (1) failed to complete a court-ordered
substance abuse treatment program; or (2) after competition of a
court-ordered substance abuse treatment program continued to
abuse a controlled substance[.]”

These instructions were followed by Question 1, which asked the jury: “Should the

parental rights of mother . . . be terminated as to [C.A.J.]?” The jury answered:

“Yes.”

Although mother asserts that there is no evidence that she failed to comply

with the provisions of a court order that specifically established the actions necessary
66
for her to obtain the return of C.A.J., we disagree. Cf. In re B.S., No. 09-06-293-CV,

2007 WL 1441273, at *4 (Tex. App.—Beaumont May 17, 2007, no pet.) (mem. op.)

(parent argued trial counsel ineffective for not objecting to jury charge where no

evidence showed she failed to regularly visit or maintain contact with her children

and thus jury should not have been allowed to consider that ground for termination

purposes).

Mother’s FSP, a copy of which the trial court admitted into evidence, required

mother to “attend all court hearings[] [and] permanency conference meetings,”

maintain “stable employment or income to meet [her] family’s basic needs,”

“provid[e] the [DFPS] caseworker with paystubs or income verification every

month,” and “participate in supervised visits” with C.A.J. If mother was unable to

make a scheduled visit, she was required to call the DFPS caseworker “24 hours in

advance.” Mother’s absence from a visit without notice constituted a failure to

comply with a requirement of her FSP.

DFPS caseworker Owens testified that mother missed two court hearings

during the pendency of the termination case, and mother did not provide Owens with

monthly proof that she had stable employment. Mother also missed her scheduled

February 2018 visit with C.A.J. According to Owens, although C.A.J.’s foster

mother brought C.A.J. to the scheduled visit, Owens had to call mother to find out

67
where she was because mother was late. Mother showed up to the visit two hours

late and after C.A.J. had left.

The record contains some evidence that mother did not comply with the

provisions of a court order that specifically established the actions necessary for her

to obtain the return of C.A.J. Cf. In re B.S., 2007 WL 1441273, at *4. A trial court

must submit the questions, instructions, and definitions raised by the written

pleadings and the evidence. TEX. R. CIV. P. 278; Elbaor v. Smith, 845 S.W.2d 240,

243 (Tex. 1992). If there is some evidence to support the submission of an

instruction, a trial court commits reversible error if it fails to submit the instruction.

4901 Main, Inc. v. TAS Auto., Inc., 187 S.W.3d 627, 630–31 (Tex. App.—Houston

[14th Dist.] 2006, no pet.). Some evidence supported the trial court’s instruction to

the jury that the parent-child relationship between mother and C.A.J. may be

terminated if it was proven by clear and convincing evidence that termination of

mother’s parental rights was in the best interest of C.A.J. and mother “failed to

comply with the provisions of a court order that specifically established the actions

necessary for [mother] to obtain the return of [C.A.J.] who ha[d] been in temporary

managing conservatorship of [DFPS] for not less than nine months as a result of

[C.A.J.’s] removal from [mother] under Chapter 262 (Procedures in Suit by

Governmental Entity) for the abuse or neglect of [C.A.J.]” And, as such, we cannot

conclude that mother’s trial counsel’s performance was deficient because she failed

68
to object to a properly submitted instruction to the jury. See In re B.S., 2007 WL

1441273, at *4 (trial counsel’s performance was not deficient for not objecting to

trial court’s charge where some evidence supported trial court’s submission of

instruction to jury in termination-of-parental-rights case); In re S.A.S., 200 S.W.3d

823, 828–30 (Tex. App.—Beaumont 2006, pet. denied) (“[I]t is not ineffective

assistance for an attorney to fail or refuse to make objections to a charge that have

no arguable basis.”); see also In re J.F.C., 96 S.W.3d at 283 (holding counsel’s

failure to object to broad-form submission of termination issues not deficient where

Texas Supreme Court had approved broad-form submission in

termination-of-parental-rights cases); Kennedy v. State, No. 01-92-01056-CR, 1994

WL 649090, at *9 (Tex. App.—Houston [1st Dist.] Nov. 17, 1994, pet. ref’d) (not

designated for publication) (“Failure to object to an acceptable jury charge is not

ineffective assistance.”).

Mother next argues that her retained trial counsel did not provide her with

effective assistance at trial because counsel did not object to irrelevant and

superfluous instructions for jury Questions 2 and 3 and did not proffer “proposed

questions giving the jury the [other conservatorship] option[s].”

Question 1 of the trial court’s charge to the jury asked: “Should the parental

rights of mother[] . . . be terminated as to [C.A.J.]?” The jury answered: “Yes.”

The trial court’s charge then asked the jury to “proceed to Question 2” and stated

69
that “the instructions and definitions on the following page” applied to both

Questions 2 and 3 in the court’s charge. After providing the jury with “Special

Instructions and Definitions for Questions 2 and 3,” Question 2 of the charge asked

the jury: “Should [DFPS] be appointed Managing Conservator as to [C.A.J.]?” And

Question 3 of the charge asked the jury: “Should [mother] be appointed Sole

Managing Conservator as to [C.A.J.]?”

Mother’s ineffective-assistance-of-counsel complaint on appeal relates to the

“Special Instructions and Definitions for Questions 2 and 3,” which she asserts were

superfluous and irrelevant, as well as to her counsel’s failure to proffer other jury

questions on the issue of conservatorship beyond what was asked of the jury in

Questions 2 and 3 of the trial court’s charge. But, before even reaching the “Special

Instructions and Definitions for Questions 2 and 3” or Questions 2 and 3 in the trial

court’s charge, the jury would have already answered Question 1 and found that

mother’s parental rights to C.A.J. should be terminated. See Turner, Collie &

Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex. 1982) (we presume

jury properly followed trial court’s instructions).

In addition to showing that her trial counsel’s performance was deficient,

mother must show that there is a reasonable probability that, but for her counsel’s

deficient performance, the result of the proceeding would have been different. See

In re M.S., 115 S.W.3d at 549–50; see also Medellin, 2012 WL 4466511, at *5. In

70
other words, mother must demonstrate that if her trial counsel had objected to the

purportedly irrelevant and superfluous instructions provided to the jury for

Questions 2 and 3 and if her counsel would have proffered “proposed questions

giving the jury [other conservatorship] option[s],” her parental rights to C.A.J. would

not have been terminated. See Medellin, 2012 WL 4466511, at *5 (father “must

show that had his counsel objected to portions of [the witness’s] testimony, and had

that testimony been excluded, there is a reasonable probability that his parental rights

would not have been terminated”).

In a single sentence in her brief, mother states that her “defense was

prejudiced by her counsel’s failure to object and/or offer appropriate proffers.”

Texas Rules of Appellate Procedure require that an appellant’s brief “contain a clear

and concise argument for the contentions made, with appropriate citations to

authorities and to the record.” See TEX. R. APP. P. 38.1(i). Conclusory statements

are not enough. See In re G.P., No. 01-16-00346-CV, 2016 WL 6216192, at *22

(Tex. App.—Houston [1st Dist.] Oct. 25, 2016, no pet.) (mem. op.); Izen v. Comm’n

for Lawyer Discipline, 322 S.W.3d 308, 321–22 (Tex. App.—Houston [1st Dist.]

2010, pet. denied); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—

Dallas 1995, writ denied) (points not supported by argument and authority waived).

The failure to provide substantive analysis waives an issue on appeal. See In re

G.H., Jr., No. 12-16-00327-CV, 2017 WL 2464694, at *4 (Tex. App.—Tyler June

71
7, 2017, pet. denied) (mem. op.); see also Fredonia State Bank v. Gen. Am. Life Ins.

Co., 881 S.W.2d 279, 284–85 (Tex. 1994); In re G.P., 2016 WL 6216192, at *22.

Mother does not provide the Court with any argument or analysis regarding

whether there is a reasonable probability that, but for her trial counsel’s purported

deficient performance, the result of the proceeding would have been different, i.e.,

her parental rights to C.A.J. would not have been terminated. Instead, she summarily

states that she was prejudiced. This is not sufficient. See, e.g., In re G.P., 2016 WL

6216192, at *22–23; L.F., 2012 WL 1564547, at *12–14.

Still yet, even if mother’s prejudice assertion had been properly briefed, she

cannot not show that if her counsel had objected to the purportedly irrelevant and

superfluous instructions provided to the jury for Questions 2 and 3 or if her counsel

would have proffered “proposed questions giving the jury [other conservatorship]

option[s],” her parental rights would not have been terminated. This is because the

jury, in this case, found that mother’s parental rights should be terminated before it

even read the “Special Instructions and Definitions for Questions 2 and 3” or

Questions 2 and 3 in the trial court’s charge—the portions of the trial court’s charge

about which mother complains. And even if mother’s trial counsel would have

proffered “proposed questions giving the jury [other conservatorship] option[s]”

than those provided for in Questions 2 and 3, such as mother being appointed as a

possessory conservator of C.A.J. or the appointment of joint managing conservators

72
of C.A.J., those

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4656149. Public record. Not legal advice.