In the Interest of C.H. and L.H., Children v. the State of Texas

Opinion filed September 19, 2024

In The

Eleventh Court of Appeals
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No. 11-24-00076-CV
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IN THE INTEREST OF C.H. AND L.H., CHILDREN

On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10989-CX

MEMORANDUM OPINION
This is an accelerated appeal from an order in which the trial court terminated
the parental rights of the mother and father of C.H. and L.H.1 Only the father,
Appellant, has appealed. On appeal, Appellant challenges the sufficiency of the
evidence to support the trial court’s finding that termination is in the children’s best
interest. We affirm the trial court’s order of termination.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2023). To terminate

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We use initials to refer to the children and their family members. See TEX. R. APP. P. 9.8(b).
one’s parental rights, it must be shown by clear and convincing evidence that the
parent has committed one of the acts listed in Section 161.001(b)(1)(A)–(V), and
that termination is in the best interest of the child. Id. at § 161.001(b)(2). Clear and
convincing evidence is “the measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the truth of the allegations sought
to be established.” FAM. § 101.007 (West 2019).
In this case, the trial court found that clear and convincing evidence
established that Appellant committed at least one of the acts listed in
Section 161.001(b)(1)—specifically, that Appellant: (1) knowingly placed or
knowingly allowed the children to remain in conditions or surroundings which
endangered the physical or emotional well-being of the children; (2) engaged in
conduct or knowingly placed the children with persons who engaged in conduct
which endangered the physical or emotional well-being of the children; and
(3) failed to comply with the provisions of a court order that specifically established
the actions necessary for Appellant to obtain the return of the children who had been
in the permanent or temporary managing conservatorship of the Department of
Family and Protective Services (the Department) for not less than nine months as a
result of the children’s removal from Appellant under Chapter 262 because of
Appellant’s abuse or neglect of the children. See id. § 161.001(b)(1)(D), (E), (O).
The trial court further found, pursuant to Section 161.001(b)(2), that
termination of Appellant’s parental rights was in the children’s best interest. See id.
§ 161.001(b)(2). On appeal, Appellant challenges the trial court’s best-interest
finding as being unsupported by legally or factually sufficient evidence.
In reviewing a legal sufficiency challenge, we must decide whether “a
reasonable trier of fact could have formed a firm belief or conviction that its finding
was true.” In re J.W., 645 S.W.3d 726, 741 (Tex. 2022). Cognizant of the required
appellate deference to the factfinder, “we look at all the evidence in the light most
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favorable to the finding, assume that the factfinder resolved disputed facts in favor
of its finding if a reasonable factfinder could do so, and disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible.” Id.
(internal quotation marks omitted). “However, we may not disregard ‘undisputed
facts that do not support the finding,’” and the factfinder is “the sole arbiter of the
witnesses’ credibility and demeanor.” Id. (quoting In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002) (then quoting In re J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021))). As
such, when considering the credibility of the evidence presented, we may not
substitute our judgment for that of the factfinder. J.F.-G., 627 S.W.3d at 316.
In assessing whether the evidence is factually sufficient, we weigh the
disputed evidence that is contrary to the finding against all the evidence that favors
the finding. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We give due deference
to the finding and determine whether, on the entire record, a factfinder could
reasonably form a firm belief or conviction about the truth of the allegations against
the parent. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002); In re L.C.C., 667 S.W.3d 510, 512 (Tex. App.—Eastland
2023, pet. denied).
With respect to the best interest of a child, no unique set of factors need be
proved. L.C.C., 667 S.W.3d at 513; In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—
Eastland 2010, pet. denied). Further, the best interest determination does not restrict
the proof to any specific factor or factors. In re D.M., 58 S.W.3d 801, 814 (Tex.
App.—Fort Worth 2001, no pet.). However, courts may use the non-exhaustive
Holley factors to shape their analysis. Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976). These include, but are not limited to: (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
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to promote the best interest of the child; (6) the plans for the child by these
individuals or by the agency seeking custody; (7) the stability of the home or
proposed placement; (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.
To support a best interest finding, the Department is not required to prove
each Holley factor; in some circumstances, evidence of the presence of only one
factor will suffice. C.H., 89 S.W.3d at 27; In re D.M., 452 S.W.3d 462, 473 (Tex.
App.—San Antonio 2014, no pet.). Additionally, the same evidence that proves one
or more statutory grounds for termination may also constitute sufficient, probative
evidence illustrating that termination is in the child’s best interest. C.H., 89 S.W.3d
at 28; C.J.O., 325 S.W.3d at 266.
The absence of evidence of some Holley considerations does not preclude the
factfinder from reasonably inferring or forming a strong conviction or belief that
termination is in the child’s best interest, particularly if the evidence indicates that
the parent-child relationship and the parent’s conduct has endangered the safety and
well-being of the child. C.H., 89 S.W.3d at 27. This is so because the best interest
analysis evaluates the best interest of the child, not the parent. In re E.C.R., 638
S.W.3d 755, 767 (Tex. App.—Amarillo 2021, pet. denied) (citing In re B.C.S., 479
S.W.3d 918, 927 (Tex. App.—El Paso 2015, no pet.)).
In this regard, the factfinder may measure a parent’s future conduct by his past
conduct and determine whether termination is in the child’s best interest. In re E.D.,
419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied); In re D.S., 333
S.W.3d 379, 384 (Tex. App.—Amarillo 2011, no pet.). The factfinder may infer
that a parent’s past conduct that endangered the safety and well-being of the child
may recur in the future if the child is returned to the possession of the parent. In re
J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.); May v.
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May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi–Edinburg 1992, writ
denied). The factfinder may infer from a parent’s past inability to meet the child’s
physical and emotional needs an inability or unwillingness by the parent to meet the
child’s physical and emotional needs in the future. J.D., 436 S.W.3d at 118; see also
In re A.S., No. 11-16-00293-CV, 2017 WL 1275614, at *3 (Tex. App.—Eastland
Mar. 31, 2017, no pet.) (mem. op.).
The Evidence Presented at Trial
In 2017, Appellant’s and the mother’s first child, C.H., was removed at birth
due to their methamphetamine and heroin use during pregnancy. C.H. spent
eighteen months in the Department’s care while Appellant and the mother engaged
in services. Soon after C.H.’s monitored return, the mother gave birth to their second
son, L.H., in 2019.
In February of 2023, when C.H. was five and L.H. was three years old, the
Department Investigator Karlye Kramer contacted the parents regarding allegations
of “[p]hysical neglect.” The parents initially denied drug use, and did not submit to
drug testing. Kramer subsequently learned that the parents relinquished custody of
the children to C.H.’s former foster parents. Appellant and the mother had been
using methamphetamine, and wanted to “get clean on their own” without the
Department’s involvement.
The Department sought and was granted temporary managing conservatorship
of C.H. and L.H. on February 23, 2023. In March 2023, Appellant’s court-ordered
drug test results were positive for methamphetamine and amphetamine.
At the final hearing on February 22, 2024, the Department presented the
testimony of Kramer, Laura Guerrero, the permanency case manager for the
Department, and the foster mother. Appellant and the mother also testified. The
Department created a Family Plan of Service for Appellant, which the trial court

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amended and made an order of the court. As part of Appellant’s family service plan,
he was ordered to:
• maintaining safe, stable, and appropriate housing free from drugs and other
illegal substances;
• participate in a psychological evaluation and substance abuse assessment;
• attend parenting classes;
• submit to random drug and alcohol testing by urinalysis, hair follicle, or
oral swab when requested, and “demonstrate sobriety” by testing negative;
• attend and complete inpatient rehabilitation if he tests positive after May
16, 2023, the date of the status hearing;
• attend all scheduled visitation with his children;
• participate in individual counseling;
Appellant failed to complete his virtual parenting classes, citing “Wifi issues”
and “work problems” for his inability to log onto Zoom. He did not attend his
counseling sessions, and Guerrero had difficulty maintaining contact with him
throughout the pendency of the case.
Guerrero further testified that C.H. described being “scared” upon seeing
Appellant have “an allergic reaction.” He saw “his dad give himself a shot,” then
“he leaned back and began shaking.” Appellant denied using drugs around his
children, and explained that C.H. saw him having an epileptic seizure. According
to Appellant, C.H. “doesn’t even know what a shot is,” and Appellant doesn’t “shoot
drugs,” he “snort[s]” them.
In June 2023, Appellant tested positive for methamphetamine, and was
ordered to complete inpatient treatment. He began an inpatient rehabilitation
program at the end of August, but left shortly thereafter, and did not contact Guerrero
because he “didn’t know [he] needed to.” Guerrero learned that Appellant was not
engaged in services when she coincidentally saw him “driving around” in
September.
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Appellant did not submit to drug testing in August, September, and October
after he left the facility. In November 2023, he successfully completed a thirty-day
inpatient treatment program, and tested negative through the end of the year.
However, he refused to submit to drug testing in January and February of 2024.
Appellant’s weekly two-hour visits with his children were suspended in
November until he submitted “to hair follicle and urinalysis drug testing.” Appellant
tested negative, then regularly attended his parent-child visits. Following the visits,
both C.H. and L.H. would “throw tantrums,” and had “been off and on” wetting the
bed. The bed-wetting “completely stopped” during the two-month break in
visitation, but the children regressed when visits resumed.
The children have been living with the foster parents since March 2023, and
are “doing great.” The foster mother told the trial court that when C.H. and L.H.
first came into their care, they “were severely delayed in their development,” and
“were throwing up a lot.” L.H. “had a significant speech delay,” and was “almost
non verbal”—he “couldn’t say words,” just “noises and sounds.” Both children are
in counseling, and L.H. is receiving speech therapy. L.H.’s speech has dramatically
improved, and he is able to express himself and communicate. Although the foster
parents do not plan to adopt the children, they will care for them until the Department
finds a long-term placement.
Appellant and the mother have been living “[o]n and off” with Appellant’s
father and sister in a trailer home since October 2023. Guerrero opined that “it would
be very cramped if you put two more children in there.” She was also concerned
with Appellant’s sister’s drug history, which led to criminal convictions and her
children’s removal years prior.
The trial court terminated Appellant’s parental rights under
Section 161.001(b)(1)(D), (E), and (O), and found termination to be in the best
interest of the children. This appeal followed.
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The Best Interest of the Children Determination
In Appellant’s sole issue, he challenges the legal and factual sufficiency of the
evidence to support the trial court’s finding that termination of his parental rights is
in the best interest of the children.
First, we reiterate that evidence of each Holley factor is not required to support
a best interest finding. In re S.R., 452 S.W.3d 351, 366 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied); In re S.O., No. 05-22-01019-CV, 2023 WL 2237084, at
*11 (Tex. App.—Dallas Feb. 27, 2023, no pet.) (mem. op.). “Put differently, the
absence of evidence on some of these factors does not preclude a best interest
finding, ‘particularly if [the] undisputed evidence shows the parental relationship
endangered the child’s safety.’” S.O., 2023 WL 2237084, at *11 (quoting In re N.T.,
474 S.W.3d 465, 477 (Tex. App.—Dallas 2015, no pet.)). “[E]vidence relating to
one single factor may be adequate in a particular situation to support a finding that
termination is in the best interests of the child.” Id. (quoting In re K.S., 420 S.W.3d
852, 855 (Tex. App.—Texarkana 2014, no pet.)). “‘[B]est interest’ is a term of art
encompassing a much broader, facts-and-circumstances based evaluation that is
accorded significant discretion.” In re Lee, 411 S.W.3d 445, 460 (Tex. 2013).
The trial court, as the trier of fact, is the sole judge of the witnesses’
credibility. J.F.-G., 627 S.W.3d at 312. We are not at liberty to disturb the
determinations of the trier of fact so long as those determinations are not
unreasonable. Id. at 311–12; In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Giving
due deference to the trial court, as we must, we hold that, based on the evidence in
the record and the application of the Holley factors, the trial court could have
reasonably formed a firm belief or conviction that termination of Appellant’s
parental rights was in the best interest of the children. See Holley, 544 S.W.2d at
371–72.

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Evidence that is relevant to Section 161.001(b)(1) termination grounds may
also be relevant to the determination of the children’s best interest. In re C.V.L., 591
S.W.3d 734, 753 (Tex. App.—Dallas 2019, pet. denied). And evidence that supports
termination under the grounds listed in Section 161.001(b)(1) can be considered in
the best-interest analysis. See C.H., 89 S.W.3d at 28; C.J.O., 325 S.W.3d at 266.
Therefore, the trial court could properly consider Appellant’s failure to comply with
the conditions of his family plan of service, his drug use, and other evidence of
endangerment in determining whether the termination of his parental rights was in
the children’s best interest. See C.H., 89 S.W.3d at 28; C.J.O., 325 S.W.3d at 266.
On appeal, Appellant argues that his “failure to complete certain parts of a
court-ordered service plan does not show potential physical danger to the children.”
He likewise contends that his drug use was not a “contributing factor to the speech
delays” and the children’s “development issues.”
Terminating the parent-child relationship does not require a direct causal link
between a parent’s drug use and harm to the children. R.R.A., 687 S.W.3d 269, 276–
78 (Tex. 2024) (“[A] pattern of drug use accompanied by circumstances that indicate
related dangers to the child can establish a substantial risk of harm.”). Rather, a
reviewing court evaluates, based on all the “evidence that a factfinder could
reasonably credit,” whether a parent’s “illegal drug use present[ed] a risk to the
parent’s ‘ability to parent.’” Id. at 278. Additionally, the trial court could consider
in its best interest determination, among other factors, Appellant’s lack of
compliance with his family service plan, and that his past endangering conduct may
recur if the children were returned to him. See In re L.N.C., 573 S.W.3d 309, 318
(Tex. App.—Houston [14th Dist.] 2019, pet. denied); J.D., 436 S.W.3d at 118; see
also In re T.B., No. 09-20-00172-CV, 2020 WL 6787523, at *8 (Tex. App.—
Beaumont Nov. 19, 2020, no pet.) (mem. op.) (“factfinder may consider prior CPS
history of neglect, drug use, or lack of care for the children”).
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The record shows that Appellant and the mother have used heroin and
methamphetamine for nearly two decades. Appellant achieved reunification after
C.H. was removed in 2017, and claimed to remain sober for the next “five to six”
years. Appellant and the mother “relapsed with methamphetamine” prior to the
Department’s second intervention. They were without stable employment, and lived
in a hotel room with the children. The trial court could properly consider Appellant’s
continuing pattern of illegal drug use, as well as his failure to submit to drug testing
throughout the pendency of the case. See T.D. v. Texas Dep’t of Fam. & Protective
Servs., 683 S.W.3d 901, 914 (Tex. App.—Austin 2024, no pet.) (“The factfinder
may infer from a parent’s missing Department-requested illegal-drug tests during a
parental-rights-termination suit that the tests missed would have come up positive.”);
In re E.R.W., 528 S.W.3d 251, 265 (Tex. App.—Houston [14th Dist.] 2017, no pet.)
(“[A] fact finder reasonably can infer that a parent’s failure to submit to court-
ordered drug tests indicates the parent is avoiding testing because they were using
illegal drugs.”).
Moreover, when the children came into foster care, three-year-old L.H. was
not potty-trained, his speech delay was so significant that he “couldn’t say words,”
and both children were “behind in school.” See T.D., 683 S.W.3d at 914
(considering the parents’ “fail[ure] to have their children educated” as endangering
conduct). And contradictory to Appellant’s denial of drug use around his children,
C.H. witnessed Appellant have an “allergic reaction” after giving “himself a shot,”
permitting the rational inference that he used drugs in front of C.H. Appellant’s
“lack of housing and ability to support his children exemplify risks that a pattern of
drug use can create.” R.R.A., 687 S.W.3d at 279. Considering that those risks and
his children’s developmental delays had “a close temporal relationship with
[Appellant’s] drug use,” the trial court could rationally infer that Appellant’s illegal
drug use had a detrimental effect on his ability to parent. See id. at 278–79.
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At the final hearing, neither parent demonstrated the ability to secure stable
housing aside from the remote desire to “[g]et [their] own place.” Appellant had
begun working for a “flooring tile company” the month prior, and the mother was
still unemployed. See FAM. § 263.307(a) (West 2019) (“[T]he prompt and
permanent placement of the child in a safe environment is presumed to be in the
child’s best interest.”). Consequently, the trial court could consider Appellant’s
impermanent and uncertain living situation in determining the best interests of the
children. J.D., 436 S.W.3d at 119 (“A parent’s inability to provide adequate care
for her children, unstable lifestyle, lack of a home and income, lack of parenting
skills, and poor judgment may be considered when looking at the children’s best
interest.”).
Despite the Department’s efforts to reunify Appellant with his children, he
failed to maintain consistent contact with his case manager and complete his required
services, including parenting classes, counseling, and submitting to drug tests. See
J.W., 645 S.W.3d at 742 (considering the parent’s unstable and uncertain living
situation in upholding the trial court’s best-interest finding); E.C.R., 638 S.W.3d at
769 (“A trial court is permitted to consider a parent’s . . . failure to comply with a
family plan of service in its best interest determination.”). Appellant blamed “ride
issues and phone issues” for missing his required drug tests in January and February,
but never solicited Guerrero’s help with transportation. While Appellant attributed
his absences from virtual parenting class to “Wifi issues” and “work problems,” the
mother proffered the vague excuse that “things would come up.” Appellant
delineated the Department’s persistence and patience in explaining why he only
went to one counseling session:
Again, I had the ride and the phone thing. We started it. And I guess we
didn’t have no time to finish. We were just getting into it. It took a
while. We got referred. We didn’t go. We got referred. Had to take two
more times of referrals, I believe.
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The trial court also heard that Appellant believed that counseling was not important
for his sobriety. The trial court, as the factfinder, was permitted to determine, based
on the testimony, that Appellant was not excused for his acts and omissions. See In
re A.J.D.-J., 667 S.W.3d 813, 837 (Tex. App.—Houston [1st District] 2023, no pet.)
(A parent’s “failure to provide valid excuses for her behavior weighs in favor of the
trial court’s finding that termination of her parental rights is in the child’s best
interest.”).
Most importantly, the children are improving and “doing great” in their
current placement. Although “[e]vidence about placement plans and adoption are,
of course, relevant to best interest,” a “lack of evidence about definitive plans for
permanent placement and adoption cannot be the dispositive factor.” C.H., 89
S.W.3d at 28. Otherwise, terminations would regularly be subject to reversal on the
sole ground that “an adoptive family has yet to be located.” Id.; see also In re
F.M.E.A.F., 572 S.W.3d 716, 732 (Tex. App.—Houston [14th Dist.] 2019, pet.
denied). The foster parents are committed to providing the children with an
environment and structure where they can succeed, and will do so until they find a
permanent home. Appellant, on the other hand, has not provided his children with
a safe, drug-free home environment. Therefore, we conclude that the trial court
properly found that this factor does not weigh against a best-interest finding and
termination of Appellant’s parental rights. See C.H., 89 S.W.2d at 28; F.M.E.A.F.,
572 S.W.3d at 732.
Upon considering the record as it relates to Appellant’s actions and inactions,
the emotional and physical danger to the children now and in the future, the
emotional and physical needs of the children now and in the future, Appellant’s
parental abilities, and his history of drug use, it is clear that Appellant exhibited “a
pattern of conduct that is inimical to the very idea of child-rearing,” which indicated
that the existing parent-child relationship is not a proper one. J.F.-G., 627 S.W.3d
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at 316 (quoting C.H., 89 S.W.3d at 28); Holley, 544 S.W.2d at 371–72. We hold
that the evidence is legally and factually sufficient to support the trial court’s finding
that termination of Appellant’s parental rights is in the best interest of the children.
See J.W., 645 S.W.3d at 741; Holley, 544 S.W.2d at 371–72. Accordingly, we
overrule Appellant’s sole issue.
VI. This Court’s Ruling
We affirm the order of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

September 19, 2024
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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