In the Interest of C.M., K.N., and R.M., Children v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-24-00215-CV

IN THE INTEREST OF C.M., K.N., AND R.M., CHILDREN

From the 82nd District Court
Robertson County, Texas
Trial Court No. 23-04-21644-CV

MEMORANDUM OPINION

Following a bench trial, the parental rights of C.M. (Father) and J.H. (Mother) were

terminated. The trial court found by clear and convincing evidence that both Father and

Mother had violated Family Code subsections 161.001(b)(1)(D), (E), and (O) and that

termination was in the children’s best interest. See TEX. FAM. CODE ANN. § 161.001(b).

Father and Mother appealed. We will affirm.

Sufficiency of the Evidence

We begin with Father’s and Mother’s third, fourth, fifth, sixth, seventh, and eighth

issues. In these issues, Father and Mother contend that the evidence was legally and

factually insufficient to support the trial court’s termination findings.
The standards of review for legal and factual sufficiency of the evidence in cases

involving the termination of parental rights are well established and will not be repeated

here. See In re J.F.C., 96 S.W.3d 256, 264–68 (Tex. 2002) (legal sufficiency); In re C.H., 89

S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). The trial court, as factfinder, is the sole

judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex.

2009).

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In their third and fourth issues, Father and Mother contend that the evidence is

legally and factually insufficient to support the trial court’s findings of fact, which are

then insufficient to support the trial court’s conclusions of law.

First, Father and Mother argue that the evidence is insufficient to support several

of the trial court’s findings because there was no written family service plan for Father or

Mother contained within the appellate record of this case. However, after Father and

Mother filed their appellants’ brief in this appeal, the Department of Family and

Protective Services (DFPS) filed a motion to supplement the clerk’s record with the

written family service plans for Father and Mother, asserting that the service plans had

simply been omitted from the clerk’s record in this appeal. On January 8, 2025, we

ordered the trial court clerk to prepare, certify, and file in this Court a supplemental

clerk’s record containing the written family service plans for Father and Mother. See TEX.

R. APP. P. 34.5(c)(1). On January 10, 2025, the trial court clerk filed a supplemental clerk’s

record containing the written family service plans showing that the service plans had

been filed with the trial court clerk on June 5, 2023. A supplemental clerk’s record is part

In the Interest of C.M., K.N., and R.M., Children Page 2
of the appellate record. Id. R. 34.5(c)(3). Thus, the appellate record now contains the

written family service plans for Father and Mother.

Second, Father and Mother argue that the trial court’s findings of fact and

conclusions of law were not sufficiently specific. Father and Mother point to the fact that

many of the trial court’s findings of fact and conclusions of law do not specifically

reference a certain child or children and instead generically reference “the child” or “the

children.”

After a trial court files original findings of fact and conclusions of law, any party

may timely request that the trial court make specified additional or amended findings or

conclusions. TEX. R. CIV. P. 298. When a party fails to timely request additional or

amended findings of fact and conclusions of law, the party is deemed to have waived the

right to complain on appeal of the trial court’s failure to enter additional or amended

findings. Briargrove Park Prop. Owners, Inc. v. Riner, 867 S.W.2d 58, 62 (Tex. App.—

Texarkana 1993, writ denied); see Barton v. Barton, 584 S.W.3d 147, 155 (Tex. App.—El

Paso 2018, no pet.). Nothing in the record indicates that Father or Mother requested

additional or amended findings of fact and conclusions of law in this case; therefore,

Father and Mother have waived any complaints about the inadequacy or incompleteness

of the findings and conclusions. See Briargrove Park Prop. Owners, Inc., 867 S.W.2d at 62.

For these reasons, we overrule Father’s and Mother’s third and fourth issues.

PREDICATE VIOLATIONS

In their fifth and sixth issues, Father and Mother contend that the evidence was

legally and factually insufficient to support the trial court’s findings that they violated

In the Interest of C.M., K.N., and R.M., Children Page 3
Family Code subsections 161.001(b)(1)(D), (E), and (O). We begin with Father’s and

Mother’s argument that the evidence was legally and factually insufficient to support the

trial court’s findings that they violated subsection (E).

Termination under subsection (E) requires clear and convincing evidence that the

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 ANN. § 161.001(b)(1)(E). To “endanger” means to expose the child to loss or injury,

to jeopardize. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The

relevant inquiry under subsection (E) is whether sufficient evidence exists that the

endangerment of the child’s well-being was the direct result of the parent’s conduct,

including acts, omissions, or failures to act. In re E.M., 494 S.W.3d 209, 222 (Tex. App.—

Waco 2015, pet. denied).

Scienter is not required for a parent’s own acts to constitute endangerment under

subsection (E). See In re L.S., No. 10-22-00119-CV, 2022 WL 3655395, at *2 (Tex. App.—

Waco Aug. 24, 2022, no pet.) (mem. op.). It is also not necessary to show that the parent’s

conduct was directed at the child or that the child suffered actual injury. Boyd, 727 S.W.2d

at 533. The specific danger to the child’s well-being may be inferred from the parent’s

misconduct alone. Id. Furthermore, while the relevant time frame for evaluating

endangerment under subsection (D) is before the child’s removal, In re J.W., 645 S.W.3d

726, 749 (Tex. 2022), we may consider conduct both before and after the child’s removal

in an analysis under subsection (E). In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston

[14th Dist.] 2014, pet. denied).

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The relevant evidence presented in this case was as follows: DFPS Investigator

Theresa Shamblin testified that she assisted a primary investigator in examining the

allegations that eventually led to the filing of the underlying case. The initial allegation

received by DFPS was that young children were seen unsupervised and were living in

unsafe and unsanitary conditions. The primary investigator went to the home and met

with Father and Mother. The primary investigator was not allowed to enter the home at

that time, but she was able to see that the children were in the home. The primary

investigator also reported that the back entrance of Father’s and Mother’s home was

covered by a mattress and did not have a door. While speaking with the primary

investigator, Father and Mother further confirmed that the electricity in the home had

been shut off by the landlord to force them to leave the residence. Father and Mother

stated, however, that they had been residing with Father’s mother and staying at her

home at night and that they were only at the home where the primary investigator visited

because they were cleaning up and taking care of some things at the home.

Shamblin testified that shortly after DFPS received the initial allegation, DFPS

received a second allegation regarding concerns about drug use and again about the

conditions of the home and children. A safety plan was initiated at that time in which

Father’s and Mother’s contact with the children became supervised by Father’s mother

and in which Father and Mother agreed to urinalysis drug testing. Father, Mother, and

the children were all residing with Father’s mother at that time.

Shamblin testified that later, after an assessment was scheduled, Father and

Mother did not agree to services. An order for court-ordered services was therefore

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sought. Before the court-ordered services hearing, Father’s mother reported that Mother

had not been residing in the home. The primary investigator also spoke with Mother on

the phone, and Mother stated that she had been working at the house from which Father

and Mother were being evicted and that she had been staying there. Additionally,

between the initiation of the safety plan and the court-ordered services hearing, Father

was arrested for aggravated assault of Mother with a deadly weapon and incarcerated.

DFPS caseworker Amanda Stevenson next testified that she had been the

caseworker for the children from July 2023 to December 12, 2023. During her time as the

caseworker, she had some communication with Father and Mother. On July 28, she sent

Father and Mother an email containing a list of the services that they needed to work

from their service plan, as well as the contact information for each provider.

Stevenson testified that Mother thereafter completed some of the services that had

been ordered by the trial court. Mother completed her psychological evaluation on

August 3, 2023. Mother also began anger management and started counseling services.

But Mother was referred for several other services and had not contacted them.

Stevenson further testified that Mother had negative drug tests on May 17, June 7, and

July 7, but that she then tested positive for amphetamine and methamphetamine in an

August 22 drug test. Mother subsequently failed to complete her drug testing on August

30, August 31, September 5, and September 18. Stevenson’s last communication with

Mother was also in August 2023 after Mother’s positive drug test, despite emails, phone

calls, and text messages from Stevenson to Mother.

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Stevenson testified regarding Father that he completed a psychological evaluation.

Father also submitted to some drug testing, but he did not submit to drug testing on six

occasions. Furthermore, like with Mother, Stevenson’s last communication with Father

was in August 2023, despite emails, phone calls, and text messages from Stevenson to

Father.

Additionally, Stevenson testified that while she was the caseworker, she was

informed several times by Father and Mother that they were having a very difficult time

finding housing. Father and Mother lived in several different towns during this time,

and while Stevenson was the caseworker, Father and Mother did not present any

evidence to DFPS that they could provide safe and stable housing for the children.

Additionally, the supervised visits between the parents and children had to be suspended

on September 13, 2023, and did not begin again while Stevenson was the caseworker.

Stevenson explained that Father and Mother were inconsistent with their visits with the

children. Father and Mother were also not completing their drug testing for DFPS, so

visitation had to be suspended until Father and Mother were willing to submit to drug

testing again.

DFPS caseworker Sydney Noble next testified that she had been assigned as the

caseworker for the children in mid-December 2023 and that she remained the caseworker

through the time of trial in late-May 2024. When she was initially assigned to the case,

she attempted to contact Mother but was unsuccessful. A hearing was then held in March

2024 because Father and Mother were wanting some additional time to work their

services. Noble explained that it was her understanding that Father and Mother were

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going to make a very concerted effort at that time to start diligently working their

services; however, that did not happen.

Noble testified regarding Father that he did attempt to participate in therapy but

that she had had only sporadic contact with him since the March hearing. Noble testified

regarding Mother that she had consistently attended therapy and had also completed an

Outreach, Screening, Assessment and Referral (OSAR) but that it was not the OSAR for

which Mother had been referred by Noble; therefore, Noble had been unable to provide

Mother’s history to the person performing the assessment. Because of that, Noble

referred Mother for a new drug and alcohol assessment, but Mother did not complete the

assessment. At the March hearing, Mother was also ordered to take a hair follicle drug

test. Mother did so, and it came back positive for methamphetamine. Mother was also

required to drug test every two weeks thereafter, but she did not. In fact, Mother did not

take another drug test after the hair follicle test. Noble testified that Mother did attempt

to explain why her drug test results were positive for methamphetamine by providing

two prescriptions. One of the prescriptions was for Vyvanse, which is an amphetamine.

Stevenson also later added that in August 2023, Mother had shared with her that she was

taking Vyvanse regularly because she has ADHD, and it was helping those symptoms.

Noble then testified that even though Mother had indicated at the March hearing

that she and Father were no longer together, Father and Mother resided at the same

residence. But Noble visited the home the day before trial and was told by the man who

was living there that Mother had not been there in several weeks and that Father had

recently been kicked out. Noble therefore explained that she did not know at that time

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of a home to which the children could return with Father and Mother. Noble further

testified that at the time of trial, Mother had a pending criminal charge for possession of

a controlled substance in Leon County and that there was an arrest warrant for her for

failure to appear in that case. Noble also believed that Father had pending criminal

charges at the time of trial.

Finally, Noble testified that Father and Mother had had no visits with the children

during the time that she was assigned to the case. Noble explained that it was DFPS

policy that Father and Mother could not have visits with the children until Father and

Mother had taken two consecutive negative urinalysis drug tests. Father and Mother

knew about DFPS’s policy but did not provide those negative drug tests. As a result, it

was Noble’s understanding that Father and Mother had not had contact with the children

since August 2023.

A parent’s drug use may support termination under subsection (E). See J.O.A., 283

S.W.3d at 345; see also In re R.R.A., 687 S.W.3d 269, 278 (Tex. 2024). The parent’s failure to

remain drug free while his rights to his child are in jeopardy may also support a finding

of endangering conduct under subsection (E). See Vasquez v. Tex. Dep’t of Protective &

Regul. Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

Additionally, a parent’s failure to regularly participate in visitation can reasonably be

found to be emotionally endangering to the child’s well-being. See In re A.F., No. 07-19-

00435-CV, 2020 WL 2786940, at *7 (Tex. App.—Amarillo May 20, 2020, pet. denied) (mem.

op.). In general, a parent’s conduct that subjects children to a life of uncertainty and

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instability endangers the physical and emotional well-being of those children. In re R.W.,

129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied).

The evidence here shows that Mother had two positive drug tests and that Mother

and Father missed multiple required drug tests, resulting in those missed tests being

deemed positive. See J.W., 645 S.W.3d at 734 (“Mother missed twelve of fourteen

scheduled drug tests, resulting in those missed tests being deemed positive.”). What is

more, because Father and Mother were missing required drug tests, neither had

participated in visitation with the children in over nine months by the time of trial.

Considering the foregoing, we conclude that the evidence was legally and

factually sufficient to establish that Father and Mother engaged in conduct that

endangered the physical or emotional well-being of the children. See TEX. FAM. CODE

ANN. § 161.001(b)(1)(E). Moreover, having concluded that the evidence was legally and

factually sufficient to support the trial court’s findings that Father and Mother violated

subsection (E), we need not address Father’s and Mother’s arguments that the evidence

was legally and factually insufficient to support the trial court’s findings that they

violated subsections (D) and (O). See In re N.G., 577 S.W.3d 230, 232–33, 237 (Tex. 2019)

(per curiam). We overrule Father’s and Mother’s fifth and sixth issues.

BEST INTEREST OF THE CHILDREN

In their seventh and eighth issues, Father and Mother contend that the evidence

was legally and factually insufficient to support the trial court’s findings that termination

was in the children’s best interest.

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In determining the best interest of a child, several factors have been consistently

considered, which were set out in the Texas Supreme Court’s opinion of Holley v. Adams,

544 S.W.2d 367, 371–72 (Tex. 1976). This list is not exhaustive but simply identifies factors

that have been or could be pertinent in the best-interest determination. Id. at 372. There

is no requirement that all these factors be proven as a condition precedent to parental

termination. See C.H., 89 S.W.3d at 27. The absence of evidence about some factors does

not preclude a factfinder from reasonably forming a strong conviction that termination is

in the children’s best interest. Id. In fact, while no one factor is controlling, the analysis

of a single factor may be adequate in a particular situation to support a finding that

termination is in the children’s best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied).

The Holley factors focus on the best interest of the children, not the best interest of

the parent. Dupree v. Tex. Dep’t of Protective & Regul. Servs., 907 S.W.2d 81, 86 (Tex. App.—

Dallas 1995, no writ). And evidence relating to the predicate grounds under subsection

161.001(b)(1) may be relevant to determining the best interest of the children. See C.H.,

89 S.W.3d at 28.

Here, the DFPS caseworkers testified that Father and Mother had a very difficult

time maintaining housing during this case, and Noble, who was the DFPS caseworker at

the time of trial, stated that she did not know at that time of a home to which the children

could return with Father and Mother. Furthermore, as stated above, the evidence showed

that Mother had two positive drug tests and that Mother and Father missed multiple

required drug tests, resulting in those missed tests being deemed positive. See J.W., 645

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S.W.3d at 734. Mother attempted to provide an excuse for her positive drug tests by

providing a prescription for Vyvanse, which is an amphetamine, but Mother also tested

positive for methamphetamine during this case. Additionally, as stated above, because

Father and Mother were missing required drug tests, neither had participated in

visitation with the children in over nine months by the time of trial. Evidence of past

misconduct or neglect can be used to measure a parent’s future conduct. See Williams v.

Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied); Ray v. Burns, 832

S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is often prologue.”); see also In re

V.A., No. 13-06-00237-CV, 2007 WL 293023, at *5–6 (Tex. App.—Corpus Christi–Edinburg

Feb. 1, 2007, no pet.) (mem. op.) (considering parent’s past history of unstable housing,

unstable employment, unstable relationships, and drug usage).

On the other hand, Noble testified that C.M. and R.M. were placed with Father’s

mother at the time of trial and that K.N. was in a foster placement. Noble further stated

that each of those placements was willing to adopt the children.

There is a strong presumption that it is in the child’s best interest to preserve the

parent-child relationship. In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.]

2003, no pet.). However, considering all the evidence in the light most favorable to the

trial court’s findings and considering the evidence as a whole, we hold that a reasonable

factfinder could have formed a firm belief or conviction that termination of Father’s and

Mother’s parental rights was in the children’s best interest. Accordingly, we overrule

Father’s and Mother’s seventh and eighth issues.

In the Interest of C.M., K.N., and R.M., Children Page 12
Judicial Notice

We now turn to Father’s and Mother’s first two issues. During DFPS’s case-in-

chief, the following exchange took place:

[DFPS’S COUNSEL]: Judge, at this time we’d ask the Court
to take judicial notice of the Court’s file and the contents and pleadings on
file . . . .

THE COURT: The Court will take judicial notice - -

First, are there any objections to the Court taking judicial
notice of the entirety of the Court’s file?

[FATHER’S COUNSEL]: I don’t take - - I don’t object to
taking notice of what the pleadings are; but of the contents, I do object.

THE COURT: Okay. [Mother’s counsel]?

[MOTHER’S COUNSEL]: I join that objection, Judge.

....

THE COURT: Okay. Your objections are noted[,] and they
are overruled. The Court is going to take notice of the entirety of the file.

Father and Mother contend in their first two issues that the trial court erred in overruling

their objections and in taking judicial notice of the entirety of the court’s file.

A trial court may take judicial notice of its own records in matters that are

generally known, easily proven, and not reasonably disputed. In re J.E.H., 384 S.W.3d

864, 870 (Tex. App.—San Antonio 2012, no pet.); see TEX. R. EVID. 201. Father and Mother

suggest, however, that by taking judicial notice of the contents of the file, the trial court

may have taken judicial notice of the truth of statements and allegations contained in the

contents of the file. But there is no indication that the trial court took judicial notice of

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the truth of any statements or allegations contained in the contents of the file. See, e.g., In

re C.J., No. 02-24-00197-CV, 2024 WL 3387348, at *2 (Tex. App.—Fort Worth July 12, 2024,

no pet.) (mem. op.). Nor did Father or Mother object on that basis. See Arroyo Shrimp

Farm, Inc. v. Hung Shrimp Farm, Inc., 927 S.W.2d 146, 151 (Tex. App.—Corpus Christi–

Edinburg 1996, no writ) (“[T]he grounds supporting an objection made during trial must

conform with the argument supporting the corresponding point of error on appeal. An

objection made during trial which is not the same as the argument urged on appeal

presents nothing for appellate review.” (citations omitted)).

We therefore overrule Father’s and Mother’s first and second issues.

Conclusion

Having overruled all Father’s and Mother’s issues, we affirm the trial court’s order

of termination.

MATT JOHNSON
Chief Justice

Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Opinion delivered and filed February 6, 2025
[CV06]

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