In the Interest of A.S. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-24-00116-CV
__________________

IN THE INTEREST OF A.S.

__________________________________________________________________

On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 21-10-15045-CV
__________________________________________________________________

MEMORANDUM OPINION

After a bench trial, Appellant C.R. (“Chad”) 1 appeals the trial court’s order

terminating his parental rights to his four-year-old daughter, A.S. (“Amy”). The trial

court found, by clear and convincing evidence, that statutory grounds exist for

termination of Chad’s parental rights under section 161.001(b)(1)(B), (C), (D), (E),

(F) and that termination of his parental rights would be in the best interest of the

child. See Tex. Fam. Code Ann. § 161.001(b)(1)(B), (C), (D), (E), (F), (2). We affirm

the trial court’s judgment.

1
To protect the child’s identity, we use pseudonyms to refer to the child,
family members, and others. See Tex. R. App. P. 9.8(b)(2).
1
The First Trial and the Non-Suits

On October 29, 2021, the Department of Family and Protective Services (“the

Department”) filed an Original Petition for Protection of a Child, Conservatorship,

and for Termination seeking to terminate the parental rights of “Linda” to her two-

year-old daughter, Amy, and Linda’s sons, “Jerry” and “John,” and also the petition

sought to terminate the parental rights of Amy’s alleged father, Chad, as to Amy.

The Original Petition also sought to terminate “Larry’s” parental rights to the

fourteen-year-old twins, Jerry and John.2

The Affidavit in Support of Removal (the affidavit) by a Department

representative filed with the Original Petition alleges that on September 18, 2021,

the Department received a referral for the negligent supervision, physical abuse, and

refusal to assume parental responsibility of Jerry, John, and Amy by Chad and Linda.

According to the affidavit, law enforcement received a call about an assault that had

occurred at a motel where Chad, Linda, and the children were living. According to

the affidavit, Linda had reportedly hit one of the twins with a phone and Linda was

“highly intoxicated[.]” The affidavit states that Linda did not have stable housing,

2
Linda and Larry are not parties to this appeal and Amy is the only child that
is the subject of the suit to terminate Chad’s parental rights. The Department refiled
the suit to terminate Chad’s rights to Amy after the trial court had granted the
Department’s nonsuit of Chad from the Original Petition. We include limited details
about Linda, Larry, John, and Jerry only as necessary to the resolution of Chad’s
appeal.
2
and she had moved from motel to motel. According to the affidavit, Linda drinks

alcohol excessively and uses drugs, recently was kicked out of a women’s shelter

for using drugs, and “may also be having sex with various people in the presence of

the children.” In the affidavit, the affiant alleges that Chad was arrested for

outstanding warrants and Linda refused to be responsible for the children and told

law enforcement that CPS could come take the children. The children complained

to CPS that they were hungry and that they had not eaten “in a significant period of

time.” According to the affidavit:

The children are known to be hungry due to the mother passing out
while under the influence of drugs/alcohol. The [two-year-old] child,
[Amy], appears to be malnourished due to the mother’s lack of adequate
feeding. The mother has reportedly never taken the child to the doctor.
The mother is known to be on drugs which includes marijuana and
crack. The mother has been living in and out of different crack houses
with the vulnerable aged child, [Amy]. The mother has reportedly left
the child alone with people who live in these crack houses for
significant periods of time. The mother was recently arrested due to
being caught with crack with the father, [Chad]. The mother has used
drugs in the presence of the children; and the children can reportedly
corroborate the allegations.

According to the affidavit, in a September 2021 interview with fourteen-year-

old Jerry, he corroborated that Linda would use marijuana, drink alcohol until

intoxicated, and Linda engaged in prostitution in the motel room. The affidavit states

that Jerry told CPS that Linda would send the children to the motel room next door

during her prostitution encounters. The children’s maternal aunt corroborated that

domestic violence instances have occurred between Linda and Chad, that Linda
3
would call her and tell her about the incidents, and that after the latest incident Linda

informed her that Linda feared for her life when Chad strangled her. The other

fourteen-year-old, John, described Chad as a “heavy drinker” that becomes more

impatient with Linda the more he drinks.

On September 27, 2021, the case was reassigned to another Department

investigator due to Linda relocating from Harris County to a women’s shelter in

Montgomery County. Although Linda denied many of the allegations, she agreed

that a safety plan should be implemented, and Linda indicated that she and the

children could move in with the children’s godmother. The affidavit states that

according to medical records received on October 13, 2021, Jerry and Amy were

seen at the UT Physician’s – CARE clinic on September 29, 2021 for “Concern for

Abuse or Neglect[,]” both children were diagnosed with being “at risk of lacking

adequate care and protection[,]” Amy was reported to be in the 4th percentile for

weight, and the medical records indicated a concern due to Linda’s use of illicit

drugs, physical abuse of the children, and prostitution.

According to the affidavit, on October 14, 2021, the Department received a

second referral alleging that Linda physically abused and physically neglected Jerry,

John, and Amy. The referral alleges that Linda reportedly beats her children and is

often high on drugs, and the referral alleges once Linda threw a cup of alcohol on

Amy because she was crying. The affidavit states that on October 16, 2021, the

4
children’s godmother reported that she would return the children to CPS before

returning them to the care of Linda. Regarding the Department’s contact with Chad,

the affidavit of the Department representative alleges the following:

On October 27, 2021, I contacted the alleged father of the child, [Amy],
[Chad]. [Chad] confirmed that he currently resides out of state. [Chad]
stated that he is the alleged father of [Amy]; however, he is not on the
birth certificate. [Chad] then stated that he is “ready to travel to Houston
to submit a DNA test through CPS.” I explained to [Chad] that CPS
does not administer DNA tests. I informed [Chad] that the Department
may be filing for legal intervention in the foreseeable future; and
explained to [Chad] that he could possibly submit a DNA test through
the court system. I respectfully requested [Chad] to provide me with his
current address to ensure he is served accordingly. [Chad] then refused
to provide me with his address; and stated that he will “go through the
necessary channels” to get his daughter another way because he
“doesn’t feel like he needs to be talking to me.” He then disconnected
the phone call.

On December 30, 2021, the trial court granted the Department’s motion for

partial non-suit of the claims regarding one child, John, and those claims were non-

suited without prejudice. The trial was scheduled for September 7, 2022, but was

then reset. According to a statement in the supplemental reporter’s record, the trial

was first convened on September 7, 2022, and then later reconvened on October 27,

2022, 3 November 10, 2022, December 15, 2022, and January 19, 2023. In November

3
The February 28, 2023 Order of Termination terminating Linda’s parental
rights to Amy does not include the September 7, 2022 or October 27, 2022 dates as
the dates when the trial was held, but a supplemental reporter’s record indicates that
the trial began on September 7, 2022, and it was then continued to October 27, 2022,
and a portion of the evidence was presented to the trial court.
5
of 2022, Chad’s attorney ad litem filed documents explaining that despite the

attorney’s exercise of due diligence, he had been unable to locate Chad. On January

18, 2023, Chad’s attorney ad litem filed a document stating that he had located Chad,

and the ad litem included some contact information for Chad. On January 20, 2023,

the State filed a Notice of Nonsuit as to Chad, and the trial court signed an Order

granting the Department’s Notice of Nonsuit without prejudice as to Chad.

On February 28, 2023, the trial court signed an Order of Termination

terminating Linda’s parental rights to Amy and Jerry and terminating Larry’s

parental rights to Jerry. The February 28, 2023 Order of Termination also appointed

the Department as permanent managing conservator of Jerry and Amy.4

4
We do not have the entire reporter’s record from the termination proceedings
as to Linda, but our appellate record includes a lengthy clerk’s record reflecting
pleadings and filings from the entire termination proceeding against Linda, as well
as a copy of the termination proceedings that were refiled against Chad. In the clerk’s
record we also find a copy of a “Permanency Report to the Court-Permanent
Managing Conservatorship” filed on March 13, 2023, that includes the following in
pertinent part:
[] Current Legal Status
The Department was appointed Permanent Managing Conservator of
[Jerry] and [Amy] on January 19, 2023. The father of [Jerry]
relinquished his rights and mother’s rights were terminated. [Amy]’s
father was recently located, so his rights have not been terminated.
The report also recommends that the Department continue as Jerry’s and Amy’s
permanent managing conservator.
6
New Petition, Trial, and Termination of
Chad’s Parental Rights to Amy

On March 7, 2023, the Department filed a new Petition to Terminate Parental

Rights, asking the trial court to terminate Chad’s parental rights as to Amy. On

November 3, 2023, DNA test results were filed with the court indicating that Chad

is Amy’s biological father. On January 19, 2024, the Department filed a First

Amended Petition to Terminate Parental Rights (hereinafter “the Petition”), which

was the live petition at the time the trial court terminated Chad’s parental rights to

Amy. The Petition alleged the following, in relevant part:

If [Chad] appears and is established as the father, or is determined to be
the presumed father, and reunification with the father cannot be
achieved, the Court should terminate the parent-child relationship
between [Chad] and the child [Amy] under Chapter 161, Texas Family
Code, if both of the following are shown:

[] [Chad] has committed any of the following acts or omissions:

[] knowingly placed or knowingly allowed the child to remain in
conditions or surroundings which endanger the physical or
emotional well-being of the child, pursuant to
§ 161.001(b)(1)(D), Texas Family Code;

[] 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, pursuant to
§ 161.001(b)(1)(E), Texas Family Code;

[] failed to support the child in accordance with the father’s
ability during a period of one year ending within six months of
the date of the filing of the petition, pursuant to
§ 161.001(b)(1)(F), Texas Family Code;

7
[] Voluntarily left the child alone or in the possession of another
not the parent without expressing an intent to return, without
providing for the adequate support of the child, and remained
away for a period of at least three months, pursuant to section
161.001(b)(1)(B);

[] Voluntarily left the child alone or in the possession of another
without providing adequate support of the child and remained
away for a period of at least six months pursuant to section
161.001(b)(1)(C);

[] Failed to support the child in accordance with the parent’s
ability during a period of one year ending within six months of
the date of the filing of the petition pursuant to section
161.001(b)(1)(F);

[] Executed before or after the suit is filed an unrevoked or
irrevocable affidavit of relinquishment of parental rights as
provided by Chapter 161, Texas Family Code, pursuant to
§ 161.001(b)(1)(K), Texas Family Code;

[] constructively abandoned the child who has been in the
permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than
six months and: (1) the Department has made reasonable efforts
to return the child to the father; (2) the father has not regularly
visited or maintained significant contact with the child; and (3)
the father has demonstrated an inability to provide the child with
a safe environment, pursuant to § 161.001(b)(1)(N), Texas
Family Code;

[] failed to comply with the provisions of a court order that
specifically established the actions necessary for the father to
obtain the return of the child who has been in the permanent or
temporary managing conservatorship of the Department of
Family and Protective Services for not less than nine months as
a result of the child’s removal from the parent under Chapter 262
for the abuse or neglect of the child, pursuant to
§ 161.001(b)(1)(O), Texas Family Code;

8
[] and that termination of the parent-child relationship is in the child’s
best interest.

On January 31, 2024, and March 11, 2024, the trial court heard evidence in the

Department’s suit to terminate Chad’s parental rights to Amy. 5

Testimony of the Court Appointed Special Advocate (CASA)

The CASA testified that she was assigned to the case in September of 2023.

The CASA testified that four-year-old Amy’s current placement was with her

maternal aunt, Laura, and the CASA found Laura’s home appropriate for Amy.

According to the CASA, Amy had been in the Department’s care with the

Department as either a temporary conservator or a permanent managing conservator

since October of 2021. The CASA stated she had not met Chad, and to her

knowledge, he had never contacted her or any person with CASA. The CASA

testified she had reviewed the documents from 2021 forward and had interacted with

Amy, Jerry, and John. The CASA did not believe visitation between Chad and Amy

would be appropriate, and the CASA believed it was in Amy’s best interest for

Chad’s parental rights as to Amy to be terminated. On cross-examination, the CASA

testified that she had never attempted to contact Chad and she had not obtained his

contact information from his attorney because when she was assigned to the case in

5
We limit our further discussion of the evidence to address the issues on
appeal.
9
September of 2023, she believed that Chad’s parental rights as to Amy had already

been terminated and that Amy’s case was proceeding “into adoption[.]”

Testimony of the CASA Supervisor

The CASA Supervisor testified that she had been the supervisor assigned to

the case since May of 2022, and she had reviewed the records in the case and

completed an investigation. According to the CASA Supervisor, she attempted to

contact Chad through his attorney, but her attempts failed because “[n]obody knew

where [Chad] was.” The CASA Supervisor testified that she believed that

termination of Chad’s parental rights to Amy was in Amy’s best interest because he

has not had a relationship with Amy. The CASA Supervisor explained that the plan

for Amy was relative adoption, the supervisor believed that relative adoption was in

Amy’s best interest because of her close relationship with her older brothers, and

Amy would be adopted with her older brothers Jerry and John, who were already

living in the same home. The CASA Supervisor recalled that Amy had a bond with

her brothers, her maternal aunt that she had been living with for two years, her

maternal uncles, and a maternal grandfather. According to the CASA Supervisor,

she had been trained in child trauma and she believed that it would be traumatic for

Amy to be in Chad’s care because she did not know him, and it would place her

“into a world she never knew.” The CASA Supervisor testified that it was in Amy’s

best interest for Chad’s parental rights to be terminated so that Amy could be adopted

10
into the home where she had lived the past two years and so that she could have

permanency.

On cross-examination, the CASA Supervisor testified that after Chad

appeared in court when Linda’s parental rights as to Amy and Jerry were terminated

and this case had to be reset because Chad had been located, the CASA Supervisor

attempted to contact Chad through his attorney in 2023.

Chad’s Testimony

Chad testified that Amy was born on August 31, 2019. According to Chad, he

primarily lives with his father in Houston, but his permanent address is his sister’s

house in Missouri where he often visits. Chad testified that if Amy was returned to

him, they would live at his father’s home in Houston. Chad testified that he never

gave the address of his father’s residence or Chad’s new cell phone number to the

Department, that he communicated with the Department primarily through e-mail

and phone, and that it was easier to contact him by e-mail. According to Chad, he

worked from February until August of 2023 making $21 an hour as a maintenance

man at apartment complexes, he started a remodeling business with his sister in

Missouri, where he had been living for a couple of months, and he is paid in cash for

his work with the remodeling business. Chad testified that he has eight children.

According to Chad, as for his obligations to his other children, one child is over

eighteen years old, he is obligated to pay child support for one of the other children,

11
and he has “50/50 custody[]” as to the remaining children so he does not have a

current child support obligation for them. Chad testified that he owns no property

and the only time in the last five years he has rented property in his name was for a

five-month period the prior summer.

Chad recalled that at the time of Amy’s removal by the Department in 2021,

he had been in a relationship with Amy’s mother, Linda, for two years, and they

were no longer together after the Department got involved in 2021. Chad testified

that the last time he lived with Linda in a home they lived in a house that was owned

by his grandmother and sold after the grandmother’s death. Chad explained that

when he and Linda were together, Linda would stay in different hotels with Linda’s

children, Chad would pay for the hotels, he often stayed at the hotels with Linda, he

let Linda take care of Amy at the hotels when he was not there, and at that time

Amy’s brothers were not enrolled in school. Chad testified that, prior to Amy’s

removal by the Department, he never believed Amy was in danger when he left Amy

in Linda’s care.

Chad testified that at the time the Department removed Amy, she was almost

two years old. According to Chad, on the night of the incident that led to the removal,

he was at a hotel with Linda, Amy, Jerry, John, and one of Chad’s daughters. Chad

recalled that Linda intentionally hit Jerry with a phone, Chad “stopp[ed] her hands[]”

from hitting Jerry, and Linda hit Chad with the phone causing a physical altercation

12
in which he bruised her and held her down while she was kicking and screaming.

Chad explained that Linda threw Chad’s phone in the toilet, Chad left the hotel room

and had the four children wait on the stairs while he went nearby to the hotel

manager’s office to call the police, and the children were back inside the locked hotel

room with Linda when Chad returned to the hotel room. According to Chad, he

called the police, they responded and tried to get Linda to open the door. Chad said

the police ultimately took Chad to jail for a couple of days for an outstanding warrant

for a speeding ticket and a “seat belt ticket[,]” and CPS was notified of the incident.

Chad recalled that when he got out of jail, he was still paying for a room at the hotel,

and he came back to the hotel. Chad testified that Amy was still with Linda at the

hotel, and he was told that “CPS was coming to get them[,] and they were leaving.”

According to Chad, the Department initially placed Amy with Linda’s friend

and let Linda stay at the friend’s house for the first six months that Amy was in the

Department’s custody. Chad testified that he supported Amy by sending her items

he purchased through Amazon, and Chad said he also sent money to Linda, but he

agreed he did not have any bank statements to show that he provided any support for

Amy while the Department had custody of her. Chad recalled that after that six-

month period that Amy was placed with Linda’s friend, Amy was then placed in a

foster home. According to Chad, he tried to contact the caseworker, but the

caseworker never called him back. Chad testified that when Amy was removed in

13
2021, he was in contact with someone in the Department named “Pansey,” but he

could not remember her last name. Chad said he told the Department where he lived,

the Department did not serve him until March of 2023, and he was not DNA tested

until November of 2023. According to Chad, he did not appear at the earlier court

proceedings because the caseworker advised him not to come, the caseworker did

not give Chad “the information for the court[,]” and Chad did not know how to get

that information. Chad agreed that he went to court for his other children, but he

testified that he did not go to the earlier proceedings regarding Amy because he was

waiting to hear from the Department’s caseworker. Chad agreed that other than the

2021 incident, he had also been investigated by CPS before as to his other children,

but he testified those investigations “never went that far.” Chad recalled that he had

other CPS history and investigations including CPS history in Missouri, and when

asked if he had been investigated by CPS numerous times he responded, “I actually

have no idea.” Chad testified that his rights have never been terminated to any of his

eight children and that he never had a child removed from his care in Missouri.

According to Chad, the Department never offered him a service plan and the

Department made no effort to place Amy with him during the pendency of the case.

Chad testified that he did not want the court to terminate his rights and that if the

Department would have offered services, he would have completed them. According

to Chad, he talked to Amy over the past year through Snapchat with her brothers and

14
they would send pictures, but that when Linda’s sister found out Chad was in contact

with Amy and her brothers the sister “kind of stopped it.” Chad recalled that, as of

the time of trial, he had not been in contact with Amy for over three months. Chad

testified that he believed that visitation with Amy would be appropriate because he

is “her father and for the first two and a half [years] until CPS took her, [he] was

always there.” Chad recalled that prior to Amy coming into the Department’s care,

his other children got along well with Amy and Amy loves Chad’s parents.

According to Chad, he could financially support Amy if his rights were not

terminated despite only earning $1,100 in one of the five months prior to trial and

even though he did not have any income in the other four months from his new

business in Missouri. Chad testified that he was not paying rent to his father; he

relied on food stamps and his family for food; and, he did extra odd jobs when he

needed money.

Chad denied ever doing drugs with Linda, and he denied that he had used

drugs in front of the children, but he admitted that he used marijuana during the time

Amy was born and that he used marijuana until she went into CPS custody in 2021.

As to whether Linda used drugs, Chad testified, “I can’t say to that.” Chad testified

he last used marijuana prior to February of 2023, and he claims he has not used any

other illegal substances. According to Chad, Linda suffers from bipolar disorder and

at one point she had been medicated for that diagnosis. He testified that Linda would

15
get angry as a symptom of her bipolar disorder and that he does not know if she had

been taking any medication for bipolar disorder before Amy’s removal. Chad

recalled that there were “a few” instances of domestic violence with Linda when

they were together, but he stated that prior to Amy’s removal Linda had never gone

“out of control” with the children but had gotten out of control with Chad in front of

the children. Chad testified that although he and Linda fought in front of the children,

the only time it turned physical in front of the children was when Amy was removed

by the Department in 2021. Chad admitted that in the past Linda had been violent

towards him and he had been violent towards her, and that he had caused her to

bruise, but he could not recall how many times he bruised her and said it was “not

that many[]” times. According to Chad, his violence towards Linda caused her to

bruise during the 2021 incident, and he agreed the police were called in 2021 and on

other occasions because of the violence between Linda and Chad. Chad testified he

still sees Linda on a regular basis; he last talked to Linda two weeks before trial and,

although he denied that they were still in a dating relationship, he did not know “right

now” if he would have a physical relationship with Linda in the future. Chad testified

that if Amy came back into his care, he would not initially let Amy see Linda but

eventually “would not have a problem[]” with Amy seeing Linda.

16
Testimony of the Department Caseworker

A Department Caseworker testified that she was assigned the case in 2022,

after Amy was placed with her current placement in her maternal grandmother’s

home with Amy’s brothers, Jerry and John. According to the Caseworker, Linda’s

parental rights as to Amy were terminated earlier in 2023, and the Department’s goal

for the case was termination of Chad’s parental rights as to Amy. The Caseworker

recalled that prior to first seeing Chad at court in 2023, the Department performed a

diligent search for Chad, but the Department was unsuccessful in contacting Chad

by phone. The Caseworker testified that once she got in contact with Chad after he

was served, he provided the Department his father’s address as the address where he

was living and provided his mother’s and father’s phone numbers. According to the

Caseworker, the phone number that he gave her that was his was not working when

she tried to call, the last time she tried the number in December of 2023 it was not

working, and Chad informed her that the phone was disconnected. The Caseworker

testified that her primary method for contacting Chad was by e-mail. The

Caseworker testified that to her knowledge Chad only asked to visit Amy in October

and November of 2023, months after he had been served, but the Department was

not going to establish visitation because it was moving forward with termination.

The Caseworker testified that Amy’s current placement was appropriate, and Amy

was doing well in that placement.

17
Testimony of the Department Representative

A Department Representative in another case regarding one of Chad’s other

children testified that in February of 2024 she had an intake related to one of Chad’s

other children. The Department Representative testified she spoke with the child and

the child’s paternal grandmother. According to the Department Representative, she

was unable to reach Chad the entire time she was investigating the other case, and

the child went to live at a safe place with the paternal grandmother. According to the

Department Representative that case was closed.

Testimony of the Department’s Conservatorship Caseworker

The Department’s Conservatorship Caseworker for Amy’s case until 2022

testified that she developed a family plan for Chad, but she was never able to

establish contact with him through the phone numbers they obtained after a diligent

search. According to the Conservatorship Caseworker, she worked with Linda on

her services, and the Department’s primary concerns for Linda were substance

abuse, domestic violence, and mental health. The Department developed a family

plan for Linda with services to address the Department’s concerns. Linda did not

complete any of the plans, and the Department’s concerns with Linda were

unresolved. Linda’s parental rights as to Amy were terminated, and the

Conservatorship Caseworker testified she would have concerns with Amy being

around Linda. When the Conservatorship Caseworker was asked if Chad was still

18
having contact with Linda on a regular basis would the Conservatorship Caseworker

have concerns, she responded, “Yes.” On cross-examination, the Conservatorship

Caseworker testified that she had not attempted to contact Chad since March of

2023.

Jerry’s Testimony

Sixteen-year-old Jerry testified he remembers what happened when the

children were removed by CPS in this case. According to Jerry, in the months

leading up to the removal, he lived with his mother (Linda), Amy, John, and Chad

at three or four different motels. Jerry recalled that he was not in school during those

months, and during the day Chad would take him to go help him work for most of

the day. Jerry testified that Linda always wanted “to be with [Chad] . . . over her

kids[.]” According to Jerry, Chad abused Linda and “belittled her.” Jerry testified

that on one occasion he saw Chad physically abuse Linda in the motel room when

Jerry, John, and Amy were watching, and Linda was bleeding as a result of the abuse

by Chad. Jerry also recalled that he saw Linda and Chad smoke drugs daily during

that three-month period before CPS removed the children. Jerry testified that his

mother’s behavior was “crazy[]” during those three months, and at the time of this

trial, he had concerns about her mental health. According to Jerry, when he and John

would leave during the day and help Chad work, Jerry was concerned about Amy

19
staying back with Linda at the motel because Amy was so young and Linda “barely

[could] take care of herself[.]”

Jerry testified that he was living at his maternal aunt’s house with Amy and

John, and Jerry and Amy were in the process of being adopted by their aunt. Jerry

believed that Amy being adopted by their aunt was in Amy’s best interest because

all her needs were being met and he and Amy have a stable environment living with

their aunt. Jerry testified that if Chad testified that he never did drugs with Linda and

that he never saw Linda do drugs that “[t]hat would be a complete lie.” Jerry also

testified that Chad has not had contact with Amy while Amy has been at her aunt’s

and that Jerry had not seen Chad send any money or gifts to Amy at her aunt’s house

or at the first placement prior to them being placed with their aunt. Jerry recalled

that on the occasion where he saw physical violence between Chad and his mother

that caused his mother to bleed, his mother had thrown a phone at one of the children,

and Chad tried to stop her. According to Jerry, Chad still left Amy with Linda after

that event, and Jerry believed it was dangerous for Amy. Jerry testified that Chad

should have had concerns about Linda’s mental health during those months at the

motel, but that Chad still left Amy with Linda while Chad and the boys worked.

According to Jerry, Linda would physically abuse Jerry and John, and although Jerry

never personally saw Linda physically abuse Amy, he still worried about it. Jerry

20
recalled that he had concerns that Linda neglected Amy, and that the entire family

at times during those three months would only have one meal a day.

Laura’s Testimony

Laura, Amy’s aunt, testified that she has had Amy in her home since May of

2022 and that Amy is doing well. According to Laura, she has not had contact with

Chad since Amy was placed in Laura’s home, and she has not received any financial

support from Chad for Amy’s care. Laura testified that Chad and Linda stayed with

Laura for a week in 2021 prior to Amy coming to live with Laura, and that was the

only time Laura had been around Chad. According to Laura, during that time Laura

had concerns about Linda’s drug use. Laura testified that she had not been in contact

with Linda since the first court hearing and that Laura had concerns about Linda’s

mental health at that time. Laura testified that she did not know if Chad and Linda

were still together.

After the bench trial, on March 26, 2024, the trial court signed a final order

terminating Chad’s parental rights to Amy and granting the Department’s request to

modify the order signed on February 28, 2023. The trial court found that the

Department had shown, by clear and convincing evidence, that it was in Amy’s best

interest to terminate Chad’s parental rights. The trial court found that the Department

had shown by clear and convincing evidence grounds for termination of Chad’s

parental rights under section 161.001(b)(1)(B), (C), (D), (E), and (F). The trial court

21
found that Chad had knowingly placed or knowingly allowed Amy to remain in

conditions or surroundings which endangered her physical or emotional well-being;

he had engaged in conduct or knowingly placed Amy with persons who engaged in

conduct which endangered Amy’s physical or emotional well-being; he voluntarily

left Amy alone or in the possession of another not the parent without expressing an

intent to return, without providing for the adequate support for Amy, and remained

away for a period of at least three months; he voluntarily left Amy alone or in the

possession of another without providing adequate support of Amy and remained

away for a period of at least six months; and Chad failed to support Amy in

accordance with Chad’s ability during a period of one year ending within six months

of the date of the filing of the petition. Chad timely appealed.

Issues on Appeal

In issue one, Chad argues that the trial court denied Chad’s due process rights

by terminating his parental rights as to Amy on two statutory grounds that he alleges

were neither pled nor tried by consent. In his second issue, he argues that the trial

court lost jurisdiction over him and the case terminating his parental rights when his

trial commenced twenty-seven months after the trial court granted the Department

temporary managing conservatorship of Amy. In issue three, Chad challenges the

legal and factual sufficiency of the evidence supporting the trial court’s termination

based on subsections B, C, D, E, and F of section 161.001(b)(1) of the Texas Family

22
Code. In his fourth issue, Chad argues that the Department violated his constitutional

rights by not serving him when the Department knew his phone number and

whereabouts but served an out-of-state relative, no service plan was created or visits

set up, no reasonable efforts were made to return Amy to Chad’s care, the CASA

failed to follow procedures, Chad’s rights were terminated before he was ever legally

served, his trial commenced twenty-seven months after removal, and termination

was based on “grounds not pled for.”

Standard of Review

The decision to terminate parental rights must be supported by clear and

convincing evidence. Tex. Fam. Code Ann. § 161.001(b). Under the Family Code,

“‘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.” Id. § 101.007; In re J.L., 163 S.W.3d 79,

84 (Tex. 2005). The movant must show that the parent committed one or more

predicate acts or omissions and that the termination is in the child’s best interest. See

Tex. Fam. Code Ann. § 161.001(b); In re J.L., 163 S.W.3d at 84.

In reviewing the legal sufficiency of the evidence in a parental rights

termination case, we must consider all the evidence in the light most favorable to the

finding to determine whether a reasonable factfinder could have formed a firm belief

or conviction that the finding was true. In re J.O.A., 283 S.W.3d 336, 344-45 (Tex.

23
2009) (citing In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder

could do so, and we disregard all evidence that a reasonable factfinder could have

disbelieved. Id. In a factual sufficiency review, we “give due consideration to

evidence that the factfinder could reasonably have found to be clear and

convincing.” In re J.F.C., 96 S.W.3d at 266. We must determine “‘whether the

evidence is such that a factfinder could reasonably form a firm belief or conviction

about the truth of the State’s allegations.’” Id. (quoting In re C.H., 89 S.W.3d 17, 25

(Tex. 2002)). “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 the

evidence is factually insufficient.” Id. In cases tried to the bench, the trial court in its

role as factfinder determines the credibility and weight of the witnesses’ testimony

and resolves any inconsistencies or conflicts in the evidence. See Webb v. Crawley,

590 S.W.3d 570, 578 (Tex. App.—Beaumont 2019, no pet.). We defer to the

factfinder’s credibility determinations as long as they are not unreasonable. See In

re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing Sw. Bell Tel. Co. v. Garza, 164

S.W.3d 607, 625 (Tex. 2004)).

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Jurisdiction

We address Chad’s second issue first, because this issue raises a jurisdictional

argument. In Chad’s second issue, he argues the trial court lost jurisdiction by failing

to begin Chad’s trial within the deadlines prescribed in section 263.401 of the Texas

Family Code. In In re E.E., 678 S.W.3d 370, 372-73 (Tex. App.—Amarillo 2023,

pet. denied), the Amarillo Court of Appeals addressed a similar issue and explained

that

Section 263.401 pronounces the time within which a termination must
be commenced when “the date the court rendered a temporary order
appointing the department as temporary managing conservator. . . .”
Tex. Fam. Code Ann. § 263.401(a) (emphasis added). It says nothing
of a situation where the Department holds the position of a permanent
managing conservator. Nor did father cite us to any authority applying
the time period mentioned in that statute to a permanent managing
conservator. Our duty being to apply statutes as written, Sampson v.
Univ. of Tex. at Austin, 500 S.W.3d 380, 387 (Tex. 2016), means we
must read § 263.401 as excluding circumstances where the Department
acts as the child’s permanent managing conservator. Thus, the several
year delay between appointment of the Department as [the child’s]
permanent managing conservator and termination of father’s parental
rights did not result in the trial court losing jurisdiction to act.

Here, the clerk’s record indicates that the Department had previously been

appointed Amy’s permanent managing conservator when Linda’s rights were

terminated as to Amy. That permanent appointment occurred prior to the filing of

the new Petition to Terminate. Chad was nonsuited from the first case that terminated

Linda’s parental rights to Amy. In the new Petition, which was filed to terminate

Chad’s parental rights, the trial court had a separate trial and entered a separate order
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of termination of Chad’s parental rights to Amy. The reporter’s record shows that at

the time the trial court terminated Chad’s parental rights to Amy on March 11, 2024,

the trial court reiterated that the Department “is already the permanent managing

conservator of [Amy].” Chad does not cite to any authority that the deadline in

section 263.401 applies when the Department is already named as the permanent

conservator of the child. We conclude that section 263.401’s deadline is inapplicable

here. See In re E.E., 678 S.W.3d at 372. We overrule issue two.

Statutory Grounds D and E

We next address Chad’s third issue on appeal. In issue three, Chad challenges

the legal and factual sufficiency of the evidence supporting the trial court’s

termination based on subsections B, C, D, E, and F of section 161.001(b)(1) of the

Texas Family Code. We are required to consider the sufficiency of the evidence

pursuant to sections 161.001(b)(1)(D) or (E) if challenged. In re N.G., 577 S.W.3d

230, 235-36 (Tex. 2019). If the evidence is sufficient as to one of these, it will not

be necessary to address the other predicate grounds because sufficient evidence as

to only one predicate ground for termination in addition to the best interest finding

is all that is necessary to affirm a termination judgment. Id. at 232-33. Because

evidence of statutory grounds D and E may be interrelated, we may consolidate our

review of the evidence supporting these grounds. See In re J.L.V., No. 09-19-00316-

CV, 2020 Tex. App. LEXIS 2070, at *33 (Tex. App.—Beaumont Mar. 11, 2020,

26
pet. denied) (mem. op.). Endangerment arises when a parent’s conduct jeopardizes

the child’s emotional or physical health. See In re S.R., 452 S.W.3d 351, 360 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied).

As to subsections D and E, Chad argues on appeal that the only evidence of

endangerment was provided by the CASA worker, the Department supervisor, and

Amy’s sibling, Jerry. According to Chad, the CASA worker and the Department

supervisor “failed to do their job in this case” and neither had any actual knowledge

of Chad “allowing [Amy] to remain in any condition.” Chad argues that Jerry’s

testimony about Linda’s endangering behavior was “that she wanted to be with”

Chad. Chad contends Jerry denied that Linda was physically violent with Amy, and

the testimony about the children being hungry or underfed first surfaced at trial and

those allegations were not supported by the initial removal affidavit or other

testimony at trial.

Under subsection D, parental rights may be terminated if clear and convincing

evidence supports that the parent “knowingly placed or knowingly allowed the child

to remain in conditions or surroundings which endanger the physical or emotional

well-being of the child[.]” Tex. Fam. Code Ann. § 161.001(b)(1)(D). Subsection E

allows for termination of parental rights if clear and convincing evidence supports

that the parent “engaged in conduct or knowingly placed the child with persons who

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engaged in conduct which endangers the physical or emotional well-being of the

child[.]” Id. § 161.001(b)(1)(E).

Under subsection D, parental rights may be terminated based on a single act

or omission by the parent. In re L.E.S., 471 S.W.3d 915, 925 (Tex. App.—Texarkana

2015, no pet.) (citing In re A.B., 125 S.W.3d 769, 776 (Tex. App.—Texarkana 2003,

pet. denied)). Termination under subsection E requires more than a single act or

omission and a “‘voluntary, deliberate, and conscious course of conduct by the

parent is required.’” Id. at 923 (quoting Perez v. Tex. Dep’t of Protective &

Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no pet.)). As for

subsection D, we examine the time before the child’s removal to determine whether

the environment of the home posed a danger to the child’s physical or emotional

well-being. Id. at 925 (citing In re L.C., 145 S.W.3d 790, 795 (Tex. App.—

Texarkana 2004, no pet.)). “A finding of endangerment under subsection E,

however, may be based on conduct both before and after removal.” In re A.L.H., 515

S.W.3d 60, 93 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (citing In re

S.R., 452 S.W.3d at 360). “‘[E]ndanger’ means to expose to loss or injury[.]” In re

N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.) (quoting Tex.

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

E, it is sufficient that the child’s well-being is jeopardized or exposed to loss or

injury. Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 367. “‘A child is endangered

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when the environment creates a potential for danger that the parent is aware of, but

disregards.’” In re L.E.S., 471 S.W.3d at 925 (quoting In re N.B., No. 06-12-00007-

CV, 2012 Tex. App. LEXIS 3587, at **22-23 (Tex. App.—Texarkana May 8, 2012,

no pet.) (mem. op.)). Generally, subjecting a child to a life of uncertainty and

instability endangers the child’s physical and emotional well-being. See In re R.W.,

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

conduct by a parent may produce a home environment that endangers a child’s well-

being. In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003,

no pet.). “‘Domestic violence and a propensity for violence may be considered

evidence of endangerment, even if the endangering acts did not occur in the child’s

presence, were not directed at the child, or did not cause actual injury to the child.’”

In re M.S., 662 S.W.3d 620, 630 (Tex. App.—Beaumont 2023, pet. denied) (quoting

In re K.A.R., No. 04-17-00723-CV, 2018 Tex. App. LEXIS 2548, at *9 (Tex. App.—

San Antonio Apr. 11, 2018, pet. denied) (mem. op.)). This Court has stated that a

parent’s pattern of drug abuse supports a finding of endangerment even if there is no

evidence that such drug use actually injured the child. See In re T.B., No. 09-20-

00172-CV, 2020 Tex. App. LEXIS 8938, at *26 (Tex. App.—Beaumont Nov. 19,

2020, no pet.) (mem. op.) (citing Vasquez v. Tex. Dep’t of Protective & Regulatory

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

In re A.M., No. 09-19-00075-CV, 2019 Tex. App. LEXIS 7941, at *55 (Tex. App.—

29
Beaumont Aug. 29, 2019, pet. denied) (mem. op.). The Amarillo Court of Appeals

has also explained that “courts have consistently found that a parent’s decision to

leave a child in the care of a known drug user is relevant to the predicate acts or

omissions outlined in [subsection] E.” In re T.C., Nos. 07-18-00232-CV & 07-18-

00233-CV, 2018 Tex. App. LEXIS 6768, at *8 (Tex. App.—Amarillo Aug. 23,

2018, pet. denied) (mem. op.).

A pattern of drug abuse will also support a finding of conduct endangering a

child even if there is no evidence that such drug use caused a physical or actual injury

to the child. Vasquez, 190 S.W.3d at 196. A history of illegal drug use is conduct

that subjects a child to a life that is uncertain and unstable, endangering the child’s

physical and emotional well-being. In re S.D., 980 S.W.2d 758, 763 (Tex. App.—

San Antonio 1998, pet. denied); Dupree v. Tex. Dep’t of Protective & Regulatory

Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ). A parent’s drug use,

criminal history, and employment and housing instability prior to and during the

case create a course of conduct from which the factfinder could determine the parent

endangered the child’s emotional and physical well-being. See In re M.C., No. 09-

18-00436-CV, 2019 Tex. App. LEXIS 2961, at **15-16 (Tex. App.—Beaumont

Apr. 11, 2019, no pet.) (mem. op.); see also In re S.R., 452 S.W.3d at 361-62

(parent’s drug use may qualify as a voluntary, deliberate, and conscious course of

conduct endangering the child’s well-being); Walker v. Tex. Dep’t of Family &

30
Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied) (illegal drug use may support termination under subsection E because “it

exposes the child to the possibility that the parent may be impaired or

imprisoned[]”).

The trial court heard Jerry testify that in the months leading up to the

children’s removal, he and Amy and the other children lived with Linda and Chad

at various motels, that Chad was abusive to Linda, that he saw Linda and Chad use

illegal drugs daily, that Chad left Amy in Linda’s care even though Linda’s behavior

was “crazy” and she could barely care for herself, that Jerry had concerns about

Linda’s mental health and worried about whether she would physically abuse Amy

because she had physically abused Jerry and John, and that the children were often

hungry and did not have enough to eat. The trial court heard Chad’s testimony where

he admitted that he smoked marijuana from the time of Amy’s birth until she went

into CPS custody in 2021 and that he had last used marijuana in February of 2023.

Chad testified that he was aware of Linda’s bipolar disorder diagnosis, but he stated

he was not aware if she was taking medication for it, and Chad agreed that Linda’s

bipolar disorder made her angry. Chad admitted that he and Linda had instances of

domestic violence between them when they were together, and he agreed the police

had been called on multiple occasions because of the violence between them, that

Linda had “lost control” with Chad in front of the children, that Chad allowed Amy

31
to stay with Linda at the various hotels when he was not there, that he and Linda had

a physical altercation on the night of the removal after Linda hit John with a phone,

that he left the four children outside of the hotel room while he went to the manager’s

office after that altercation, but when he returned to the room the children were

locked up in the hotel room with Linda, and that he has continued to see Linda on a

regular basis and could not rule out having a physical relationship with Linda in the

future or letting Amy eventually see Linda if Amy came back into Chad’s care. The

trial court also heard Chad’s testimony that in recent months he had earned no

income, that he was living in Missouri and Texas and relied on family for a place to

live and relied on food stamps and family for food. The trial court could have

disbelieved Chad’s testimony that he never used drugs in front of the children, and

the trial court could have disbelieved that Chad did not know whether Linda used

drugs. See In re J.P.B., 180 S.W.3d at 573.

Deferring to the trial court’s credibility determinations and reviewing all the

evidence in the light most favorable to the termination findings under subsections D

and E, the trial court could reasonably have formed a firm belief or conviction that

Chad, through his individual acts or omission or a course of conduct endangered

Amy’s physical or emotional well-being. See In re J.O.A., 283 S.W.3d at 344-45.

We conclude that the Department established, by clear and convincing evidence, that

Chad committed the predicate acts enumerated in subsections D and E. See Tex.

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Fam. Code Ann. § 161.001(b)(1)(D), (E). Further, considering the entire record, we

conclude the disputed evidence that the trial court could not reasonably have credited

in favor of its endangerment findings is not so significant that the court could not

reasonably have formed a firm belief or conviction that Chad endangered Amy. See

In re J.F.C., 96 S.W.3d at 266.

We need not address the sufficiency of the evidence to support a violation of

the other subsections of section 161.001 cited in the trial court’s Order of

Termination. See In re N.G., 577 S.W.3d at 232-33. We overrule issue three.

Statutory Grounds B and C

In issue one, Chad argues that the trial court’s termination order was based in

part on findings under subsections B and C, which were neither pled by the

Department nor tried by consent. We specifically note that both subsections were

included as a basis for termination in the First Amended Petition to Terminate

Parental Rights pertaining to Chad. Additionally, having concluded that the evidence

is legally and factually sufficient to support the trial court’s findings of

endangerment under subsections D and E, we need not address issue one. See id.;

see also Tex. R. App. P. 47.1. We overrule issue one.

Constitutional Argument

In issue four, Chad argues that his constitutional rights were violated because

the Department failed to use any real effort during the case to locate him, because

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the Department “portray[ed] ignorance of his whereabouts[]” despite having his

phone number at the time of Amy’s removal, because no service plan was ever

created for Chad and Amy, no visits were ever set up despite the fact he says he

made a request for visits, and because the Department made no reasonable efforts to

return Amy to Chad’s care. Chad also complains that CASA did not follow their

own procedures, trial commenced twenty-seven months after Amy’s initial removal,

and his rights were terminated on grounds that were not included in the pleadings.

Generally, to preserve error for appellate review, a party must present the

complaint to the trial court by a timely request, objection, or motion, stating the

specific grounds for the complaint, and obtain a ruling. Tex. R. App. P. 33.1. The

rules governing error preservation apply to civil cases involving termination of

parental rights. In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005); In re B.L.D., 113

S.W.3d 340, 350-51 (Tex. 2003) (fundamental-error doctrine does not apply to

procedural preservation rules, nor does due process require appellate review of

unpreserved complaints in parental rights termination cases); Tex. Dep’t of

Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (failure

to assert a constitutional claim in the trial court bars appellate review of claim). We

have already overruled Chad’s issue on appeal making a jurisdictional argument and

his issue on appeal about statutory grounds B and C wherein he argues those grounds

were not pled or tried by consent. Chad did not raise in the trial court any of the other

34
alleged constitutional violations or complaints he states on appeal. Accordingly,

those complaints are not preserved for appellate review. See In re K.A.F., 160

S.W.3d at 928; In re B.L.D., 113 S.W.3d at 350-51; see also Tex. R. App. P. 33.1.

We overrule issue four.

Having overruled Appellant’s issues on appeal,6 we affirm the trial court’s

judgment.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on June 27, 2024
Opinion Delivered September 19, 2024

Before Johnson, Wright and Chambers, JJ.

6
On appeal, Chad does not challenge the trial court’s best interest finding.
35