T. D. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00469-CV

T. D., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY

NO. C2022-1912B, THE HONORABLE MELISSA MCCLENAHAN, JUDGE PRESIDING

OPINION

T.D. (Mother) appeals the trial court’s Final Order of Termination, rendered after

a bench trial, terminating her parental rights to her daughters M.E.D. (Older Daughter) and

N.A.D.M. (Younger Daughter).1 In five appellate issues, some with discrete subparts, Mother

maintains that (1) the trial court’s noncompliance with statutory provisions and its conduct of the

trial on the merits deprived her of due process; (2) she was not given effective notice of the full

adversary hearing or of the trial; (3) the evidence was insufficient to support termination under

Paragraph (O), see Tex. Fam. Code § 161.001(b)(1)(O); (4) the evidence was insufficient to

support termination under Paragraph (E), see id. § 161.001(b)(1)(E); and (5) the trial court should

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The order also terminated the parental rights to the two daughters of their father,

Mother’s husband. The father is no longer a party to this appeal.

not have appointed the Department of Family and Protective Services as the children’s managing

conservator. We affirm.

BACKGROUND

Older Daughter was 12 years old and Younger Daughter 10 at the time of trial. The

family had been involved with the Department in the past, and this time, Department involvement

began with a report of neglectful supervision of the children. The family was found living in a

warehouse without running water or working heat or air conditioning and with only a generator

for electricity. Mother tested positive for methamphetamine, and her husband—the children’s

father—admitted that he had been using methamphetamine. The children looked underfed and

had not been in school for some time. The Department placed the children with a licensed foster

placement, who now wants to adopt the children. The children are excited at the prospect of living

with the foster placement permanently.

The Department prepared Family Service Plans for both Mother and the children’s

father and asked each parent to comply with their Plan’s requests if the parents wished the children

to be returned to them. Mother’s Plan required her to submit to random drug-testing. The trial

court later made the parents’ Plans orders of the court. Both parents refused outright to participate

in their Plans, including refusing all requested drug tests until the trial court said that it would have

the parents arrested if they did not test. The parents then took that one drug test, and it came back

positive for each parent for methamphetamine. The Department filed this suit for termination of

Mother’s and the father’s parental rights to the children.

As the suit progressed, the trial court appointed an attorney to represent Mother,

but Mother later asked the court to discharge that attorney and for permission to represent herself

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in the suit or for the children’s father, who is not a lawyer, to represent her. The court told Mother

that the father could not represent her.

That condition—Mother’s self-representation—continued through the trial on the

merits, and Mother did not request the help of an attorney. Mother and the father showed up to

the trial late but were allowed to participate once they arrived. After trial, the trial court signed its

Final Order of Termination, ruling that both parents’ rights be terminated and that termination

of Mother’s rights was properly based on statutory predicate grounds Paragraph (E) and

Paragraph (O). Mother now appeals and is represented by appointed appellate counsel.

DISCUSSION

I. Mother’s due-process complaints are either unmeritorious or unpreserved.

In her first issue, Mother maintains that the trial court denied her due process. She

argues that she was denied due process because of two sets of acts or omissions by the court: (1) its

failure to comply with Family Code sections 107.013 and 263.0061(a) and (2) its conduct of the

trial on the merits.

A. Mother has not shown that the trial court was noncompliant with

Sections 107.013 and 263.0061(a).

Section 107.013 deals with the right to counsel, providing for appointment of

counsel for indigent parents under certain circumstances. See Tex. Fam. Code § 107.013(a), (d),

(e). It begins, “In a suit filed by a governmental entity under Subtitle E in which termination of

the parent–child relationship . . . is requested, the court shall appoint an attorney ad litem to

represent the interests of . . . an indigent parent of the child who responds in opposition to the

termination.” Id. § 107.013(a)(1). It continues, addressing necessary procedures for appointing

an attorney:

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The court shall require a parent who claims indigence under Subsection (a) to file

an affidavit of indigence in accordance with Rule 145(b) of the Texas Rules of Civil

Procedure before the court may conduct a hearing to determine the parent’s

indigence under this section. . . . If the court determines the parent is indigent, the

court shall appoint an attorney ad litem to represent the parent.

Id. § 107.013(d).

Section 261.0061(a) deals with the parent’s right to notice of the right to counsel

and to notice of the right to appointed counsel in certain circumstances. The statute provides:

At the status hearing under Subchapter C and at each permanency hearing under

Subchapter D held after the date the court renders a temporary order appointing the

department as temporary managing conservator of a child, the court shall inform

each parent not represented by an attorney of:

(1) the right to be represented by an attorney; and

(2) if a parent is indigent and appears in opposition to the suit, the right to a

court-appointed attorney

We next recount the relevant portions of the record to determine whether the trial court complied

with these statutory directives.

After the Department filed this suit, soon after Mother was served with citation, the

trial court ordered appointment of an attorney to represent Mother but in the same order “defer[red]

its findings as to whether [Mother] is indigent, with the right to a court appointed attorney.” Two

months later, and while Mother was still represented by the appointed attorney, the court signed a

Temporary Order Following Adversary Hearing that both (a) found Mother to be indigent and

(b) informed Mother of her right to an appointed attorney conditioned both on “sign[ing] an

affidavit of indigence” and potentially on the court’s “hear[ing] evidence to determine if [Mother

is] indigent.” (Formatting altered.) About three months after that order, the court held an initial

permanency hearing, and both Mother and her appointed attorney appeared at the hearing. The

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court did not notify Mother during the hearing that Mother was entitled to appointed counsel.

Mother told the court that she did not want the attorney to represent her anymore and that she

wanted to represent herself or the children’s father to represent her. The court told Mother that the

father, who is not a lawyer, could not represent her. Soon after the hearing, the court signed an

Initial Permanency Hearing Order Before Final Order that discharged Mother’s attorney from the

representation. There is no reporter’s record for any hearings occurring between this initial

permanency hearing and trial, so we presume that the trial court did not violate Mother’s rights at

any such hearings. At trial, the proceedings began and continued for “almost 30 minutes,”

according to the trial court, before Mother and the father appeared. After they appeared, the trial

continued with more witness testimony, and after trial, the court rendered its judgment terminating

Mother’s parental rights to Older Daughter and Younger Daughter. The court did not notify

Mother during the trial that Mother was entitled to appointed counsel. There is no affidavit of

indigence by Mother in the record, and at no point after Mother’s appointed attorney was

discharged did Mother request from the court the assistance of an attorney.

Based on this record, the trial court did not fail to comply with either

Section 107.013 or Section 261.0061(a). See Tex. Fam. Code §§ 107.013, 261.0061(a); In re B.C.,

592 S.W.3d 133, 134, 136–37 (Tex. 2019) (per curiam); A.G. v. Texas Dep’t of Fam. & Protective

Servs., No. 03-22-00502-CV, 2022 WL 17982121, at *5 n.6 (Tex. App.—Austin Dec. 29, 2022,

no pet.) (mem. op.); In re B.C., No. 02-22-00256-CV, 2022 WL 17172338, at *5 (Tex. App.—

Fort Worth Nov. 23, 2022, pet. denied) (mem. op.); In re S.C., No. 09-21-00325-CV, 2022 WL

1037912, at *15 (Tex. App.—Beaumont Apr. 7, 2022, no pet.) (mem. op.); see also In re K.S.L.,

538 S.W.3d 107, 112 & n.16 (Tex. 2017) (“[D]ue process d[oes] not require the appointment of

counsel in every parental-termination proceeding.” (citing Lassiter v. Department of Soc. Servs.,

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452 U.S. 18, 31 (1981))); B.L.M. v. J.H.M., No. 03-14-00050-CV, 2014 WL 3562559, at *11 &

n.8 (Tex. App.—Austin July 17, 2014, pet. denied) (mem. op.) (contrasting status hearings with

“the termination trial”). Consistent with the above statutory requirements, the trial court appointed

Mother counsel who represented her until Mother advised the trial court that she no longer wanted

counsel to represent her. After the trial court allowed her attorney to withdraw based on her

request, Mother never requested counsel again. While Mother was not admonished of her right to

counsel at her trial, at that point in the case, the court was not required to do so. See Tex. Fam.

Code § 263.0061(a); A.G., 2022 WL 17982121, at *5 (stating that “better practice” would be for

trial court to admonish parent of right to counsel at trial on merits but recognizing “that is not what

the Texas Family Code currently requires”). We overrule the portions of Mother’s first issue that

involve Sections 107.013 and 263.0061(a).

B. Mother’s due-process arguments about the conduct of the trial are either

unmeritorious or unpreserved.

Next, Mother maintains that the trial court’s conduct of the trial on the merits

violated her due-process rights. She argues that she was denied a meaningful opportunity to be

heard because the court did not allow her to make a statement to the court or the chance to put on

a case and did not ask her what “things” should be “clarified” as Mother alluded to them in her

closing statement.

We first note that the record runs counter to much of what Mother argues that she

was prevented from doing at trial. Mother actually was allowed to make a statement to the court

if she wished. The court invited both Mother and the father to make a statement. Later in the trial,

after the father made a closing statement after all witnesses finished testifying, the court invited

anyone else to make a closing statement. Mother took the court up on that invitation, making the

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following statement: “There are many things that should be clarified here. Many things.” After

this statement—and with no sign in the record that the court cut Mother off or otherwise denied

her the chance to speak for any longer—the court responded: “They would have been clarified all

along. They would have been clarified all along, if you would have just simply come to the

hearings and worked your services. Okay?”

Otherwise during the trial, the court asked Mother if she had any witnesses of her

own to call, and Mother responded that she did not. And after the direct examinations of the

witnesses, the court with only one exception asked Mother if she wished to cross-examine, and

Mother each time responded that she did not. The one exception was after the father’s questioning

of the Department investigator. The investigator had finished testifying before Mother and the

father appeared at the trial. The court allowed the father to recall the investigator to testify, and

when the father finished his examination of the investigator, the court asked no one present,

including Mother, whether they had any further questions for the investigator.

Thus, comparing the record of trial against Mother’s appellate complaints about the

court’s conduct of the trial reveals that much of what Mother complains about did not happen the

way she says it did. Contrary to her arguments, she was not prevented from putting on a case or

from making a statement to the court. We therefore overrule the relevant portions of her first issue.

But consistent with her arguments, it is true that the court did not ask her (a) if she wanted to

examine the Department investigator after the father’s examination of that witness ended and

(b) what she meant in her closing statement by the “many things that should be clarified here.”

Because “[a]s a rule” we are to decide constitutional questions only “when we

cannot resolve issues on nonconstitutional grounds,” “we first determine whether our law on

preservation—including our rules of procedure and our common-law doctrine of fundamental

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error—permit review of” Mother’s due-process complaints about what happened at trial. See In re

B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). The preservation rules require an appellant to have

“made to the trial court by a timely request, objection, or motion” a statement of “the grounds for

the ruling that the [now-appellant] sought from the trial court with sufficient specificity to make

the trial court aware of the complaint, unless the specific grounds were apparent from the context.”

Tex. R. App. P. 33.1(a)(1)(A). The preservation rules reach even constitutional complaints, like

lack of due process, in parental-rights-termination cases. See In re K.A.F., 160 S.W.3d 923, 928

(Tex. 2005) (“[T]he rules governing error preservation must be followed in cases involving

termination of parental rights, as in other cases in which a complaint is based on constitutional

error.”); see also In re L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003); B.L.D., 113 S.W.3d at 352.

Mother did nothing in the trial court to make the court aware of any due-process

complaint based on not being asked whether she wanted to cross-examine the investigator and not

being asked about what she meant in her closing statement that “many things . . . should be

clarified.” Because Mother did not preserve any such complaints in the trial court, the preservation

rules prevent us from reviewing those complaints here. See L.M.I., 119 S.W.3d at 710–11. The

preservation rules themselves satisfy due process. See B.L.D., 113 S.W.3d at 351–54. And Mother

on appeal gives no reason for extending the fundamental-error doctrine to these complaints. See

id. at 350–51. We thus do not reach this last portion of Mother’s first issue.

II. Mother has not shown reversible error in the purported lack of notice of the

adversary hearing and has not preserved her complaint about lack of notice of trial.

In her second issue, Mother maintains that she was not given effective notice of the

adversary hearing or of the trial on the merits. In the portion of this issue about the adversary

hearing, she argues that she received no notice and that she was served with citation via documents

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that had not been translated into Spanish. These arguments appear to rely on an incomplete view

of the record. Mother argues that notice of the adversary hearing was ineffective because the

hearing was set for November 3, 2022, and although she was served with citation on November 1,

2022, the return of service does not indicate that Mother was served also with notice of the

impending adversary hearing. But a more complete view of the record shows that the adversary

hearing was postponed to give Mother’s appointed attorney “time to respond to the petition and

prepare for the hearing.” The postponement was effected by the same November 2022 court order

that appointed the attorney to represent Mother. Then according to the court’s February 14, 2023

Temporary Order Following Adversary Hearing, the adversary hearing was held not in

November 2022 but over three days in December 2022 and January 2023. The same order also

says both Mother and her attorney appeared at the three-day adversary hearing.

To secure a reversal on appeal, the appellant bears the burden of showing that the

trial court’s purported error either “probably caused the rendition of an improper judgment” or

“probably prevented the appellant from properly presenting the case to the court of appeals.” See

Tex. R. App. P. 44.1(a); In re J.P.-L., 592 S.W.3d 559, 577, 588–89 (Tex. App.—Fort Worth 2019,

pet. denied). In light of the full record, we conclude that Mother has not shown how the lack of a

reference in the November 2022 return of service to the adversary-hearing setting that was later

postponed probably caused the rendition of an improper judgment or probably prevented Mother

from properly presenting the case to us. See Tex. R. App. P. 44.1(a); see also In re C.C.,

No. 02-23-00128-CV, 2023 WL 5967898, at *8 (Tex. App.—Fort Worth Sept. 14, 2023, no pet.)

(mem. op.) (concluding that appellate issue about trial court’s purported “failure to secure

[parent–appellant’s] attendance at the pre-trial conference” failed under harm requirement of

Rule 44.1(a)). By the time the adversary hearing occurred, Mother was represented by appointed

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counsel, and both Mother and her appointed counsel appeared at the adversary hearing. Mother’s

arguments fail to show how she was harmed by lack of notice of a hearing that she and her attorney

both attended without objection.

Based on similar reasoning, we also conclude that Mother has not shown how the

failure to have the citation with which she was served translated into Spanish probably caused the

rendition of an improper judgment or probably prevented Mother from properly presenting the

case to us. After she was served with the English-language citation, Mother was appointed an

attorney, who represented her until the court honored Mother’s request that the attorney be

discharged and Mother be allowed to represent herself. Before his discharge from the

representation, the attorney sought on Mother’s behalf the appointment of an interpreter “to be

available at all hearings,” and there was indeed an interpreter present to interpret for Mother at

both of the proceedings for which we have reporter’s records, including the trial on the merits.

The lack of a Spanish-language translation of the November 2022 citation thus does not support

the harm necessary for a reversal. See Tex. R. App. P. 44.1(a). We overrule this first portion of

Mother’s second issue.

In the rest of her second issue, Mother argues that she received no notice of trial,

which deprived her of due process. This matter is also one that may not be reviewed on appeal if

not preserved in the trial court. See In re Marriage of Mohamed, No. 14-18-01029-CV, 2021 WL

3629245, at *6 (Tex. App.—Houston [14th Dist.] Aug. 17, 2021, no pet.) (mem. op.); In re

M.M.M., No. 05-19-00392-CV, 2019 WL 4744694, at *3–4 (Tex. App.—Dallas Sept. 30, 2019,

pet. denied) (mem. op.); In re D.R.O., No. 10-17-00378-CV, 2019 WL 1716330, at *3–4 (Tex.

App.—Waco Apr. 17, 2019, no pet.) (mem. op.). Notice of a trial setting “may be either actual

or constructive, as long as it is reasonably calculated under the circumstances to apprise the

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party of the pendency of the action and to provide an opportunity to present objections.” M.M.M.,

2019 WL 4744694, at *4. Rule of Civil Procedure 245 provides for 45 days’ notice of a first

trial setting, which Mother argues she did not receive, but a “violation of Rule 245 is not, in

and of itself . . . , a due process violation.” D.R.O., 2019 WL 1716330, at *4. An appellate

complaint about insufficient notice of trial “under Rule 245 or the due process clause” is subject

to the preservation rules. Id.; accord Marriage of Mohamed, 2021 WL 3629245, at *6;

M.M.M., 2019 WL 4744694, at *3–4. “Complaints regarding a lack of proper notice of a . . . trial

setting are generally waived when the complaining party received notice of the proceeding,

appeared and participated, and failed to lodge a timely objection or request a continuance.”

Marriage of Mohamed, 2021 WL 3629245, at *6; accord M.M.M., 2019 WL 4744694, at *4;

D.R.O., 2019 WL 1716330, at *4.

Mother appeared at the trial and participated or was at least offered opportunities

to participate. Yet nothing in the record suggests that Mother made the trial court aware of a

complaint about lack of notice of trial. Mother thus has not preserved this complaint for appellate

review, see Marriage of Mohamed, 2021 WL 3629245, at *6; M.M.M., 2019 WL 4744694, at *3–

4; D.R.O., 2019 WL 1716330, at *3–4, and we do not reach this last portion of her second issue.

III. The evidence was legally and factually sufficient to support termination under

Paragraph (E).

In her third and fourth appellate issues, Mother maintains that the evidence

was insufficient to support the two statutory predicate grounds on which the trial court

based the termination of her parental rights—Paragraphs (E) and (O). See Tex. Fam. Code

§ 161.001(b)(1)(E), (O). Mother does not challenge the trial court’s best-interest finding

supporting termination. See id. § 161.001(b)(2). Successful proof of only one statutory predicate

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ground is all that is needed together with a best-interest finding to support termination, so we will

review only the Paragraph (E) endangerment ground here. See In re N.G., 577 S.W.3d 230, 232,

234–35 (Tex. 2019) (per curiam).

A. Applicable law and standard of review

To terminate parental rights, the Department must prove both one of the statutory

predicate grounds and that termination is in the best interest of the child. See Tex. Fam. Code

§ 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). The Department must prove

both elements by clear and convincing evidence. See Tex. Fam. Code § 161.206(a); In re J.F.C.,

96 S.W.3d 256, 263 (Tex. 2002). “‘Clear and convincing evidence’ means the measure or degree

of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the

truth of the allegations sought to be established.” Tex. Fam. Code § 101.007; accord In re C.H.,

89 S.W.3d 17, 23 (Tex. 2002).

Legal-sufficiency review of the evidence to support termination requires reviewing

all the evidence in the light most favorable to the finding under attack and considering undisputed

contrary evidence to decide whether a reasonable factfinder could have formed a firm belief

or conviction that the finding was true. See In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018).

“Factual sufficiency, in comparison, requires weighing disputed evidence contrary to the finding

against all the evidence favoring the finding.” Id. at 631. “Evidence is factually insufficient if, in

light of the entire record, the disputed evidence a reasonable factfinder could not have credited in

favor of a finding is so significant that the factfinder could not have formed a firm belief or

conviction that the finding was true.” Id. When reviewing the evidence, we must “provide due

deference to the decisions of the factfinder, who, having full opportunity to observe witness

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testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses.”

In re A.B., 437 S.W.3d 498, 503 (Tex. 2014).

B. Statutory predicate grounds—Paragraph (E) endangering conduct

Paragraph (E) applies when a parent has “engaged in conduct or knowingly placed

the child with persons who engaged in conduct which endangers the physical or emotional

well-being of the child.” Tex. Fam. Code § 161.001(b)(1)(E). For these purposes, “‘[e]ndanger’

means ‘to expose to loss or injury; to jeopardize.’” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)

(per curiam) (quoting Texas Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).

“Although ‘“endanger” means more than a threat of metaphysical injury or the possible ill effects

of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child

or that the child actually suffers injury,’” id. (quoting Boyd, 727 S.W.2d at 533), or even that the

conduct happen in the child’s presence, Pruitt v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-10-00089-CV, 2010 WL 5463861, at *4 (Tex. App.—Austin Dec. 23, 2010, no pet.) (mem.

op.). “Endangerment does not have to be established as an independent proposition, but can be

inferred from parental misconduct alone,” and courts may look to conduct “before the child’s birth

and both before and after the child has been removed by the Department.” Id. “Conduct that

subjects a child to a life of uncertainty and instability endangers the child’s physical and emotional

well-being.” Id.

The relevant inquiry under Paragraph (E) is whether the endangerment of the

child’s well-being was the direct result of a person’s conduct, including acts, omissions, or

failures to act. See T.M. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00174-CV,

2021 WL 4692471, at *6 (Tex. App.—Austin Oct. 8, 2021, pet. denied) (mem. op.); In re J.F.-G.,

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612 S.W.3d 373, 382 (Tex. App.—Waco 2020), aff’d, 627 S.W.3d 304 (Tex. 2021). If the

endangering person is someone other than the appealing parent, then the parent generally must

have known of the other person’s endangering conduct. See Tex. Fam. Code § 161.001(b)(1)(E);

J.F.-G., 612 S.W.3d at 384; In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.]

2018), pet. denied, 579 S.W.3d 74 (Tex. 2019) (per curiam). “Termination under subsection (E)

requires more than a single act or omission, and the Department must show a voluntary, deliberate,

and conscious course of conduct by the parent, considering a parent’s actions both before and after

the child was removed from the home.” T.M., 2021 WL 4692471, at *6.

C. The evidence was sufficient to support termination under Paragraph (E).

The evidence here showed three sets of circumstances relevant under

Paragraph (E). First was evidence of illegal-drug use by Mother. “[A] parent’s use of narcotics

and its effect on his or her ability to parent may qualify as” endangering conduct. In re J.O.A.,

283 S.W.3d 336, 346 (Tex. 2009). Drug use “exposes the child to the possibility that the

parent may be impaired or imprisoned.”2 J.M. v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-21-00274-CV, 2021 WL 5225432, at *5 (Tex. App.—Austin Nov. 10, 2021, pet. denied)

(mem. op.) (quoting M.D. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-00531-CV, 2021

WL 1704258, at *8 (Tex. App.—Austin Apr. 30, 2021, no pet.) (mem. op.)). Evidence that the

parent used illegal drugs while a suit to terminate the parent’s rights was pending is especially

supportive of termination under Paragraph (E). See T.M., 2021 WL 4692471, at *6.

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So do a parent’s other criminal acts even if not drug-related, and Mother was arrested for

criminal trespass while this suit was ongoing.

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When the children were removed, Mother tested positive for methamphetamine.

Her explanation to the Department investigator was that the children’s father “would drug her with

the methamphetamines,” but the trial court as factfinder had a right to give no weight to Mother’s

self-serving statement, plus Mother seemed to the investigator to be unconcerned about this

purported conduct by the father, who himself admitted to using methamphetamine. Then after

the removal and while this suit was pending, Mother tested positive for amphetamine and

methamphetamine, and so did the father. The couple underwent only this drug test, after

missing many more requested by the Department, because the trial court had said that it

would have the parents arrested otherwise. The factfinder may infer from a parent’s missing

Department-requested illegal-drug tests during a parental-rights-termination suit that the tests

missed would have come up positive. See J.M. v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-22-00187-CV, 2022 WL 7163637, at *12 (Tex. App.—Austin Oct. 13, 2022, no pet.)

(mem. op.); In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

Second, another way that parents can endanger their children by conduct is by

subjecting the children to uncertainty and instability. See S.S. v. Texas Dep’t of Fam. & Protective

Servs., No. 03-21-00695-CV, 2022 WL 2542007, at *11 (Tex. App.—Austin July 8, 2022, pet.

denied) (mem. op.). “Neglect can be just as dangerous to the well-being of a child as direct

physical abuse.” V.P. v. Texas Dep’t of Fam. & Protective Servs., No. 03-19-00531-CV, 2020

WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem. op.) (quoting In re M.L.L.,

573 S.W.3d 353, 363 (Tex. App.—El Paso 2019, no pet.)). Parents exhibit such endangering

conduct when failing to have their children educated and when subjecting their children to unsafe

and unstable housing arrangements. See C.M.M. v. Department of Fam. & Protective Servs.,

No. 14-21-00702-CV, 2022 WL 1789925, at *13 (Tex. App.—Houston [14th Dist.] June 2, 2022,

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pet. denied) (mem. op.); In re Z.A.S., No. 02-11-00040-CV, 2011 WL 3795231, at *15–16 (Tex.

App.—Fort Worth Aug. 25, 2011, no pet.) (mem. op.). Here, Mother and the father had the family

living in a warehouse. The Department investigator described the living arrangement as unsafe,

and she and others testified that the warehouse had the family car parked inside it; contained

scattered buckets of gasoline; had a generator as the only source of electricity; lacked running

water, heating, and air conditioning; and had only minimal food. The children slept on a mattress

without bedding on the ground, and they had belongings like clothes but nothing much else. The

children’s guardian ad litem testified that Mother and the father had neglected the children via the

“unhealthy home setting.” The children said that they were not in school, and a permanency

specialist testified that they had been out of school for over three years. Younger Daughter needed

to go through a school grade one year behind the grade for her age group “so that she could

catch up.” Both daughters were underweight when first coming into Department care, but the

foster placement fixed that issue.

Finally, a parent’s refusal to participate in a Department-requested Family Service

Plan can be considered in the endangerment analysis. See E.J. v. Texas Dep’t of Fam. & Protective

Servs., No. 03-23-00104-CV, 2023 WL 4139041, at *5 (Tex. App.—Austin June 23, 2023, pet.

denied) (mem. op.); In re J.A.V., 632 S.W.3d 121, 132 (Tex. App.—El Paso 2021, no pet.). The

Department here prepared a Family Service Plan for Mother that requested that she take parenting

courses, psychological and psychosocial assessments, and drug and alcohol assessments; attend

AA and NA meetings; and submit to random drug-testing. Mother did virtually none of this, even

telling Department personnel that she refused to participate in the Plan. And the one drug test she

submitted to was, as we have noted, at the trial court’s compulsion.

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In the face of this evidence, Mother’s arguments on appeal are unavailing. She

argues that the Department improperly elicited testimony that the children had not received their

immunizations, but we need not consider this evidence in our sufficiency review to conclude that

the evidence was sufficient. She similarly argues that the evidence that the children had not

been in school is “prohibited as a reason for removal” under Family Code section 262.116, but

the only provisions of that statute even marginally relevant here concern “evidence that the

parent . . . homeschooled the child [or] is economically disadvantaged.” See Tex. Fam. Code

§ 262.116(a)(1), (2). We see nothing in the evidence referring to homeschooling of the daughters

or requiring that any endangerment finding here be based on Mother’s economic conditions.

Mother next argues that “[n]ot one witness testified regarding the effect that

Mother’s positive drug tests had on her girls.” But evidence of endangerment does not require the

child to have actually suffered injury or the endangering conduct to have happened in the child’s

presence. See M.C., 917 S.W.2d at 269; Pruitt, 2010 WL 5463861, at *4. And illegal-drug use

amounts to endangerment evidence when, as here, the drug use “exposes the child to the possibility

that the parent may be impaired or imprisoned,” see J.M., 2021 WL 5225432, at *5 (quoting M.D.,

2021 WL 1704258, at *8), and the parent used illegal drugs while a suit to terminate the parent’s

rights was pending, see T.M., 2021 WL 4692471, at *6.

Finally, Mother relies on the Department’s having adduced evidence of suspected

domestic violence by the children’s father against her, but that evidence is unnecessary to recount

for purposes of our evidence-sufficiency review. In all then, under the applicable legal- and

factual-sufficiency standards, we conclude that the evidence was sufficient to support termination

under Paragraph (E). We thus overrule Mother’s fourth issue and need not reach her third,

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which attacks the Paragraph (O) finding for insufficient evidence. See Tex. R. App. P. 47.1; N.G.,

577 S.W.3d at 232–35.

IV. Mother now lacks standing to challenge the conservatorship appointment.

In her fifth issue, Mother maintains that the trial court should not have named the

Department as the children’s managing conservator. Mother lacks standing to advance this issue

because her parental rights to the children have been terminated and we have rejected (or cannot

reach) all of her challenges to the portion of the trial court’s judgment that terminated her parental

rights. See M.S. v. Texas Dep’t of Fam. & Protective Servs., No. 03-23-00396-CV, 2023 WL

8852161, at *8 (Tex. App.—Austin Dec. 22, 2023, no pet. h.) (mem. op.); M.E. v. Texas Dep’t of

Fam. & Protective Servs., Nos. 03-23-00184-CV, 03-23-00191-CV, 2023 WL 6164865, at *19

(Tex. App.—Austin Sept. 22, 2023, no pet.) (mem. op.). We thus do not reach this last issue.

CONCLUSION

We affirm the trial court’s Final Order of Termination.

__________________________________________

Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Kelly and Theofanis

Affirmed

Filed: January 26, 2024

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