In the Interest of J.C. and C.C., Jr., Children v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-25-00223-CV

In the Interest of J.C. and C.C., Jr., Children

On appeal from the
472nd District Court of Brazos County, Texas
Judge Andrea L. James, presiding
Trial Court Cause No. 23-003280-CV-472

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

J.M. (the “Mother”) appeals from the termination of her parental rights

to her children, J.C. and C.C. Jr., pursuant to TEX. FAM. CODE ANN.

§ 161.001. The trial court terminated the Mother’s parental rights to the

children under Family Code subsections 161.001(b)(1)(D), (E), and (O), and

made a finding that termination is in the children’s best interest. The

Mother complains that the trial court erred by not determining that the

Indian Child Welfare Act is applicable to this case and applying its

requirements. The Mother also contends that the evidence was legally and
factually insufficient to support the trial court's termination findings. We

affirm the judgment of the trial court.

INDIAN CHILD WELFARE ACT

The Mother alleges that the trial court erred by failing to require the

Department to fully comply with the notice provisions of the Indian Child

Welfare Act (the “ICWA”). See 25 U.S.C.A. §§ 1901–1963 (2001). This appeal

was abated, and the trial court has determined that the ICWA does not apply

to the children. Proper notice pursuant to the ICWA has been sent, and the

trial court has made its determination. Based on the record before us, we

agree with the trial court that the ICWA and its requirements are not

applicable.

STANDARD OF REVIEW

Because the ICWA does not apply, we turn to the Mother’s challenge of

the legal and factual sufficiency of evidence in support of the 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

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

2009).

In a proceeding to terminate the parent-child relationship brought

under section 161.001 of the Family Code, the Department of Family and

Protective Services (the “Department”) must establish by clear and

convincing evidence two elements: (1) that the respondent parent committed

one or more acts or omissions enumerated under subsection (b)(1), termed a

predicate violation, and (2) that termination is in the best interest of the

child. TEX. FAM. CODE ANN. § 161.001(b); In re J.F.-G., 612 S.W.3d 373, 381

(Tex. App.—Waco 2020) (mem. op.), aff'd, 627 S.W.3d 304 (Tex. 2021). Proof

of one element does not relieve the petitioner of the burden of proving the

other. J.F.-G., 612 S.W.3d at 381.

TERMINATION FINDINGS

On appeal, the Mother challenges the legal and factual sufficiency

supporting the trial court’s predicate ground and best interest findings, and

she also argues there was insufficient evidence to find that the Department

made reasonable efforts to return the children. Specifically, the Mother

challenges the sufficiency of the evidence of endangerment under Family

Code subsections 161.001(b)(1)(D), (E), and (O).

In the Interest of J.C. and C.C., Jr., Children Page 3
Predicate Grounds

The Family Code permits termination if the parent knowingly placed or

knowingly allowed the child to remain in conditions or surroundings which

endanger the child’s physical or emotional well-being. TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D). The Family Code also allows for termination if the parent

has engaged in conduct or knowingly placed the child with persons who

engaged in conduct which endangers the child’s physical or emotional well-

being. TEX. FAM. CODE ANN. § 161.001(b)(1)(E). Finally, the Family Code

provides for termination if the parent used a controlled substance in a

manner that endangered the health or safety of the child. TEX. FAM. CODE

ANN. § 161.001(b)(1)(O).

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). However, it is not

necessary that the parent's conduct be directed at the child or that the child

actually suffer injury. Boyd, 727 S.W.2d at 533.

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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, 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). 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.

T. D. v. Tex. Dep't of Family & Protective Services, 683 S.W.3d 901, 913 (Tex.

App.—Austin 2024, no pet.).

Here the evidence shows a history of drug use by both the Mother and

the father of the two younger siblings of J.C. and C.C. Jr., whom the Mother

allowed to be in the home with the children. Evidence of a parent's drug use

is relevant when accompanied by “additional evidence that a factfinder could

reasonably credit that demonstrates that illegal drug use presents a risk to

the parent's ‘ability to parent.’” In re R.R.A., 687 S.W.3d 269, 278 (Tex. 2024).

Additionally, drug use is a condition which can indicate instability in the

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home environment because it exposes the child to the possibility that the

parent may be impaired or imprisoned. See In re J.F.-G., 612 S.W.3d 373,

386 (Tex. App.—Waco 2020), aff'd, 627 S.W.3d 304 (Tex. 2021). The record

shows that children were removed from the Mother in November 2023, when

the Mother and the father of a younger sibling failed to report that one of the

younger siblings (2 years old) went missing for over sixteen hours. Evidence

shows that when the children were returned to the Mother in a monitored

return, the Mother relapsed on synthetic marijuana, was arrested for public

intoxication, and left the children unsupervised for multiple days. One of the

children testified that the child witnessed upsetting behavior by the Mother

and father of the younger siblings, specifically jumbled words, stumbling, and

eyes that were a little bit shut.

Additionally, the evidence shows that the Mother missed at least five

drug screens between September 2024 and May 2025. As part of its

endangering conduct analysis, a court may consider a parent’s failure to

complete a service plan. See In re R.F., 115 S.W.3d 804, 811 (Tex. App.—

Dallas 2003, no pet.). The record reflects that the Mother failed to maintain

consistent contact with her counselor and did not respond to communications

with the Department.

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Considering all the evidence presented in this case in the light most

favorable to the trial court's finding and considering the evidence as a whole,

we conclude that the evidence was legally and factually sufficient to support

termination of the Mother’s parental rights under Paragraphs (D), (E), and

(O). TEX. FAM. CODE ANN. § 161.001(b)(1).

Best Interest of the Children

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). The Holley

factors include: (1) the desires of the child; (2) the emotional and physical

needs of the child now and in the future; (3) the emotional and physical

danger to the child now and in the future; (4) the parental abilities of the

individuals seeking custody; (5) the programs available to assist these

individuals; (6) the plans for the child by these individuals; (7) the stability of

the home; (8) the acts or omissions of the parent that may indicate the

existing parent-child relationship is not a proper one; and (9) any excuse for

the acts or omissions of the parent. Id. 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 In re C.H., 89

In the Interest of J.C. and C.C., Jr., Children Page 7
S.W.3d 17, 27 (Tex. 2002). The absence of evidence about some factors does

not preclude a factfinder from reasonably forming a strong conviction that

termination is in the child'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 child'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 child, 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 child. See In re C.H., 89 S.W.3d 17, 28

(Tex. 2002).

Regarding the emotional and physical needs of the children now and in

the future and regarding the emotional and physical needs of the children

now and in the future, 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). We already discussed that

the evidence, as outlined above, indicates that after the removal and

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monitored return of the children, the Mother continued drug usage, left the

children unsupervised for days, and was arrested.

Regarding the plans for the children by the individuals or agency

seeking custody and the stability of the home or proposed placement, the

factfinder may compare the parent's and the Department's plans for the child

and consider “whether the plans and expectations of each party are realistic

or weak and ill-defined.” In re J.D., 436 S.W.3d 105, 119–20 (Tex. App.—

Houston [14th Dist.] 2014, no pet.). Testimony showed that when asked

about her plans for the children, the Mother stated that she would take it one

day at a time and give them a normal childhood. Alternatively, the

Department’s plan for one child is the unrelated adoption by a family that

has indicated they would like to adopt the child. The evidence shows that the

other child is currently in a behavioral treatment facility where continued

treatment is recommended. The stronger, more defined plans for the children

that favor permanency are those outlined by the Department. There is

testimony that the children are doing well in their current placements. In

contrast, the evidence shows that both children had an increase in

aggressive, inappropriate behaviors following contact with the Mother and

that one child no longer has phone contact with the Mother for this reason.

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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 here in the light most favorable to the trial court's finding and

considering the evidence as a whole, we hold that a reasonable factfinder

could have formed a firm belief or conviction that termination of the Mother’s

parental rights was in the best interest of all the children.

Reasonable Efforts to Return

The Mother specifically challenges the sufficiency of the evidence to

support that the Department made reasonable efforts to return the children

to her. Making “reasonable efforts to return the child to the parent” under

subsection (N) does not necessarily mean that the child must be physically

delivered to the parent. In re G.P., 503 S.W.3d 531, 533 (Tex. App.—Waco

2016, pet. denied). Generally, implementation of a family service plan by the

Department is considered a reasonable effort to return a child to the parent.

A.D. v. Tex. Dep't of Fam. & Protective Servs., 673 S.W.3d 704, 714 (Tex.

App.—Austin 2023, no pet.) (quoting In re A.L.H., 468 S.W.3d 738, 744 (Tex.

App.—Houston [14th Dist.] 2015, no pet.)).

The Mother does not contest that a service plan was implemented by

the Department. It is also undisputed that the Department attempted to

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reunify the children with the Mother during the pendency of the case, which

resulted in a second emergency removal. There is evidence that the Mother

missed multiple drug tests and failed to maintain regular or responsive

communication with the Department, particularly communications regarding

home visits.

Instead of contesting the aforementioned evidence, the Mother argues

that the caseworker’s bias frustrated the service plan. The Mother’s

argument points to testimony within the record that was observed by the

trial court as evidence of the alleged bias. 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). Based on the foregoing, we therefore conclude

that a reasonable factfinder could have formed a firm belief or conviction that

the Department made reasonable efforts to return the children to Mother.

See A.D. v. Tex. Dep't of Fam. & Protective Servs., 673 S.W.3d 704, 714 (Tex.

App.—Austin 2023, no pet.).

CONCLUSION

In light of the foregoing, we affirm the trial court's order of termination.

LEE HARRIS
Justice

In the Interest of J.C. and C.C., Jr., Children Page 11
OPINION DELIVERED and FILED: January 8, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
CV06

In the Interest of J.C. and C.C., Jr., Children Page 12