Appeal from the 315th District Court Harris County, Texas
Trial Court Case No. 2018-00151J
consists of Justices Lloyd, Landau, and Countiss.
RUSSELL LLOYD, JUSTICE
(Mother) is appealing the trial court's decree
terminating her parental rights to her son, J.Q.J. (Jerry).
On appeal, Mother argues that there is legally and factually
insufficient evidence supporting the trial court's
findings that (1) she committed the predicate acts under
Family Code subsections 161.001(b)(1)(N) and (O); (2) she did
not prove her affirmative defense to termination under
section 161.001(b)(1)(d); and (3) termination of her parental
rights is in Jerry's best interest. See Tex.
Fam. Code § 161.001(b)(1)(N) & (O), We modify the
trial court's order and affirm as modified.
tested positive for marijuana when Jerry was born in August
2017. The Department received a referral of physical abuse
around that time and gave it the disposition of "Reason
to Believe-Active Case." The Department received another
referral on December 5, 2017 for neglectful supervision of
Jerry but that was "Ruled Out." On January 10,
2018, the Department received a second referral of neglectful
supervision of Jerry. According to the referral, Mother and
Jerry's presumed father, David,  were physically fighting
while 5-month-old Jerry was present.
January 12, 2018, the Department filed its Original Petition
for Protection of a Child for Conservatorship, and For
Termination in Suit Affecting the Parent-Child Relationship.
According to the removal affidavit filed in support of the
petition, the Department made the following observations from
a video recording of the January 10th altercation:
[David was] yelling, screaming profanities and throwing
objects at [Mother] as he literally terrorized everyone in
the household. It was observed on the video that [David]
physically grabbed [Mother] by the neck and was dragging her
down the hallway toward her bedroom. It was observed that
several family members in the household attempted to restrain
[David] but were unable to. It was also observed that
eventually he cornered [Mother] in the bedroom and she was
able to grab a hammer that was nearby and began to swing
profusely at [David].
It was also reported that aggravated assault took place in
the home, whereby [Mother] assaulted the father with a
full adversary hearing on January 23, 2018, the trial court
appointed the Department as Jerry's temporary managing
conservator. The court also signed an order in which it found
that there was a continuing danger to the child, that for the
child to remain in his parents' care was contrary to his
welfare, and that despite reasonable efforts made by the
Department to avoid removing the child, allowing him to
continue residing in their home was contrary to his welfare.
See Tex. Fam. Code § 262.201. The court also
included a warning in the order that Mother's failure to
fully comply with the court's orders could result in
restriction or termination of her parental rights.
trial court held a status hearing on March 12, 2018. After
the hearing, the court signed an order stating that it had
reviewed the family service plan created for Mother by the
Department, found it reasonable, and made the plan a part of
the court's orders. See Tex. Fam. Code §
263.106. The court also found that Mother had reviewed the
terms of her plan and understood it. Moreover, both the
court's order and Mother's plan contain the
statutorily required admonishment that the purpose of the
plan was to assist her in creating a safe environment for the
child, and that should she fail to demonstrate the ability to
do so, her parental rights could be restricted or terminated.
See Tex. Fam. Code § 263.102(b).
service plan outlines the reason for the Department's
involvement with the child and the Department's initial
concerns. Jerry came into the Department's care after a
January 10, 2018 neglectful supervision referral due to
domestic violence between Mother and David. The Department
was initially concerned about Jerry's safety because he
was less than one year old, very vulnerable, and unable to
protect himself, and therefore, he needed appropriate
caregivers to ensure that his basic needs were met. According
to the Department, the parents' drug use and history of
domestic violence posed a risk to Jerry's protection and
25, 2018, the trial court held a permanency hearing and
issued an order suspending Mother's visitations with
Jerry "until such time that she can produce a clean drug
trial was held on October 22, 2018. Mother participated by
phone because was not able to attend due to transportation
Department caseworker, Allanti Ford, testified that Jerry
came into the Department's care after they received a
referral of neglectful supervision of Jerry in January 2018
alleging an instance of domestic violence between Mother and
David. Jerry, who was five months old, was present in the
home when the altercation occurred. According to Ford, Mother
also tested positive for marijuana when Jerry was born.
was placed with his maternal grandmother in September 2018.
The grandmother resides in Georgia. Ford testified that the
placement is going great. According to Ford, Jerry is a
healthy one-year old who is being well taken care of and has
adjusted well to the placement. Ford confirmed that the
grandmother is meeting all of Jerry's physical and
emotional needs and she plans to adopt him if the court
terminated Mother's parental rights. Ford testified that
Jerry's grandmother has her own home and has the means to
support him, with or without financial assistance from
Mother. According to Ford, Jerry is surrounded by extended
family in his current placement, including an aunt, an uncle,
and cousins, all of whom adore him and are excited and happy
to have him in the home.
also testified that the Department prepared a family service
plan that identified several requirements that Mother had to
complete before Jerry could be returned to her care. Among
other things, Mother was required to (1) attend all court
hearings, permanency conferences, and family visits with
Jerry; (2) submit to random urine analysis drug testing and
test negative every time (failure to appear for the test is
considered a positive test result); (3) cooperate in a
psychological evaluation and follow all of the
evaluation's recommendations; (4) participate and
successfully complete parenting classes, the Batterers
Intervention and Prevention Program (BIPP), and anger
management classes; (5) provide the Department with a
certificate of completion for each program and demonstrate
skills that she learned from these programs during her visits
with Jerry and conversations with his caseworker; (6) attend
NA/AA meetings/12 step program, acquire a sponsor, and
provide supporting documentation to the Department; (7)
acquire and maintain employment and provide documentation to
caseworker; and (8) acquire and maintain stable housing for
more than six months. BIPP and anger management programs were
required because of the domestic violence allegationthat
resulted in Jerry coming into the Department's care.
testified that Mother did not complete any of her services
other than finding employment, and Mother did not provide any
certificates of completion. Ford believes that Mother can pay
child support. According to Ford, the last time Mother
visited with Jerry was in March or April 2018. The trial
court suspended Mother's visitation on July 25, 2018,
pending proof of a clean drug test. Ford testified that
Mother did not attempt to contact or communicate through
phone calls or cards or presents or anything else after her
visitation was suspended. When asked if Mother was attending
visits with Jerry before the suspension, Ford testified,
"Yes, just a few of them." Ford also stated that
Jerry is currently placed with his maternal grandmother, and
that although the grandmother and Mother are in contact, she
does not know if they discuss Jerry during these phone calls.
Ford opined that Mother had failed to maintain significant
contact with Jerry during the case.
permanency report, which was admitted into evidence without
objection, details the various ways that Mother failed to
comply with her court-ordered service plan, including that
Mother failed to: (1) appear for thirteen court-ordered drug
tests between February and September 2018; (2) attend four
court hearings and two parent-child visits before her
visitation rights were suspended in July 2018, tpending proof
of a clean drug test result; (3) participate in, and provide
certificates of completion for, parenting classes,
anger management classes, and the domestic violence
prevention program; (4) attend NA/AA meetings, acquire a
sponsor, and provide supporting documentation; and (5)
participate in a psychological evaluation, and follow all
recommendations from the evaluation. On June 3, 2018, Mother
admitted to the Department that she used marijuana to relieve
Dempster, Jerry's Child Advocates volunteer, testified
that Child Advocates recommended that Mother's parental
rights be terminated based on Jerry's young age,
Mother's history of substance abuse, Mother's failure
to complete services, and Mother's failure to show that
she can provide Jerry with a safe and stable environment.
Dempster further testified that Jerry was living with his
maternal grandmother. According to Dempster, Jerry's
grandmother is very happy to have Jerry living with her and
Jerry is doing very well in his current placement.
did not testify at trial.
November 20, 2018, the trial court signed a decree naming the
Department as Jerry's sole managing conservator and
terminating Mother's parental rights to Jerry pursuant to
Texas Family Code sections 161.001(b)(1)(N) and (O).
of the Evidence
issues, Mother argues on appeal that there is legally and
factually insufficient evidence supporting the trial
court's findings that: (1) she committed the predicate
acts under sections 161.001(b)(1)(N) and (O); (2) she did not
prove her affirmative defense to termination under section
161.001(d); and (3) termination of her parental rights is in
Jerry's best interest. See Tex. Fam. Code §
161.001(b)(1)(N) & (O), 161.001(b)(2).
Standard of Review and Applicable Law
parent's right to the care, custody, and control of her
child is a liberty interest protected under the Constitution,
and we strictly scrutinize termination proceedings on appeal.
See Santosky v. Kramer, 455 U.S. 745, 758-59 (1982);
see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex.
1985). Clear and convincing evidence must support an
involuntary termination. Holick, 685 S.W.2d at 20
(citing Santosky, 455 U.S. at 747-48).
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 §
101.007. "This standard guards the constitutional
interests implicated by termination, while retaining the
deference an appellate court must have for the
factfinder's role." In re O.N.H., 401
S.W.3d 681, 683 (Tex. App.-San Antonio 2013, no pet.). Thus,
we do not re-weigh issues of witness credibility but ...