In the Interest of J.E.R.A, J.G.A.B, Children v. Department of Family and Protective Services

Affirmed and Memorandum Opinion filed May 2, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00851-CV

IN THE INTEREST OF J.E.R.A, J.G.A.B, CHILDREN

On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2022-01568J

MEMORANDUM OPINION

A mother appeals the trial court’s final decree terminating her parental rights
to her two youngest children. Her first issue is a “due process” medley–a series of
complaints in connection with the denial of her trial-day motion for continuance
based on anticipated ineffective assistance of counsel combined with an argument
about the shortcomings in the provision of translation/interpretive services. Her
second issue is that the evidence at trial was legally and factually insufficient to
support the trial court’s determination that termination of her parental rights is in
the best interests of the two children. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND

Removal

On September 7, 2022, the Texas Department of Family and Protective
Services (“the Department”) received an intake alleging neglectful supervision by
Mother.1 Mother tested positive for cocaine when she came into the hospital to
deliver a newborn child. In addition, Mother broke an agreement for a friend to
watch her children when she fled in the middle of night climbing over a gate and
tossed her then two-and-a-half year-old son over the gate to an unknown person.
Each child’s father was deported to Honduras and Mother refused to provide the
fathers’ names. Mother stated she had some family in Houston but did not socialize
with them after they insisted she have an abortion. Mother stated that her
pregnancy was a result of rape and admitted to using drugs because she was raped
and to cope with stress.

On September 14, 2022, the Department filed an “Original Petition for
Protection of a Child Conservatorship, and for Termination in Suit Affecting the
Parent-Child Relationship” and sought temporary managing conservatorship of
J.E.R.A, the aforementioned two-and-a-half-year-old (“Javier”), a male born in
2020, and J.G.A.B., the aforementioned newborn (“Jetson”), a male born in 2022,
due to neglectful supervision of the Children by Mother and admitted drug use by
Mother

On October 12, 2022, the court held an adversary hearing and on October
17, 2022, the court signed an order for temporary managing conservatorship. On
November 7, 2022, the Department filed a “First Amended Petition for Protection
of a Child for Conservatorship, and for Termination in Suit Affecting the Parent-

1
We use pseudonyms to refer to appellant, the children, their biological family members,
and foster parents. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8.

2
Child Relationship.” On February 13, 2023, Child Advocates was appointed as the
Guardian ad litem.

Trial: Pretrial Motions

Trial commenced on September 5, 2023. Mother and her attorney appeared
for trial.

Before hearing testimony, however, the court heard two motions filed by
mother’s trial counsel–requests to withdraw and for a continuance. In support,
Mother’s trial counsel stated that communication with her client had deteriorated to
the point where she could no longer effectively represent Mother. She reported that
communication with her client began to deteriorate a week and a half before trial
while Mother’s trial counsel was in the hospital and “when the Department
changed their goal.” She acknowledged, however, the court’s concern that she had
been representing Mother during the entirety of the case, and that the statutory
dismissal date for the suit was less than two weeks later, on September 18, 2023,
which did not provide sufficient time for another attorney to prepare.

The court then asked Mother about her communication with her attorney,
and Mother stated that her counsel “has never communicated to me during the
whole year.” Mother said she had not received a phone call for a year and that she
came “to court to find out about her to be able to talk to her.”

The court noted that Mother and her attorney were present at the most recent
hearing on July 18, 2023 when the court advised Mother that she needed to file a
statement of indigence if she wanted a court-appointed attorney, which was not
done. The court noted as well that Mother and her counsel were also present before
the court in April of 2023, and that at no time had either made the request for
Mother to have new counsel. Mother’s counsel asserted that “it was brought up,”

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but the judge saw no record of the issue having been raised, and Mother’s counsel
agreed that no motion had been filed before. The court then ruled that the motion
to withdraw was denied.

Mother’s trial counsel then orally asked that the trial be continued because
she had been in the hospital during the previous two weeks, learned while she was
there that the Department changed its goal, and therefore did not have time to
prepare. The court noted, however, that counsel was present at a hearing during the
previous July when the court notified the parties that it was not approving the
Department’s previous goal of family reunification. Counsel responded that the
goal had not officially changed, however, until she was in the hospital. She
informed the court that she would provide ineffective assistance and stated, “I’m
standing here with a broken back and in pain.”.

Counsel confirmed, however, that she was in contact with Mother during the
case up until July of 2023 when Mother left the drug treatment program at Santa
Maria. Before that, counsel said she had been corresponding with Mother via email
and had “many emails with her where we do have contact,” during which time
counsel agreed she was able to help Mother with the case. The court noted, too,
that counsel was present at every hearing and suggested that the evidence had not
changed; that it pertained to “stuff we already did in prior hearings, including the
one that you were on July 18 for….” The court denied the requested continuance
and proceeded with trial.

Trial: Evidence

The court heard testimony from the Department’s caseworker, the child
advocate, Mother, and the children’s foster father.

The first witness was the Department’s caseworker, Tenaye Grant, who was

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assigned to the case on September 23, 2022, shortly after the suit was initiated. She
confirmed that the initial report was made to the Department because Mother and
Jetson were positive for cocaine when the child was born, and said Mother
admitted to using substances throughout her pregnancy, including
methamphetamine and cocaine. Grant explained that as a result Jetson was placed
in “an emergency high-risk nursery.” Grant said that the child appeared to be
lethargic.

Grant testified that Mother was in contact with the Department “on and off,”
and had not been in contact since the beginning of June. Grant continued to try to
contact Mother, however, and testified that Mother admitted to purposefully
ignoring Grant, though Grant credited Mother’s efforts to reach out to Grant via
text in the two weeks leading to trial. Grant described Mother as “very hostile and
accusatory.” Mother sent Grant emails telling Grant to “go to hell,” or telling Grant
that God would take care of her.

Grant confirmed that both children were placed in foster care and that the
placement was an adoptive one. Grant said the children were “very much” bonded
with their foster parents.

The child advocate volunteer, Esther Gonzalez, testified next. She was
appointed in March, had observed the children in their foster home, and testified
that their interaction with their foster parents was “very positive.” She testified
about Javier’s improved health and progress in speech after being placed in foster
care.

Mother testified next. She acknowledged that she tested positive for cocaine
at Jetson’s birth and that she used cocaine throughout the time she was pregnant.
She estimated that she used cocaine during her fifth month, stating, “I believe it
was like about five, something like that, that month.”
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Mother said she was in a relationship with Javier’s father whom she
described as “a very toxic person,” who “did not allow me to have a phone…did
not allow me to have contact with social media,” and said, “I was not allowed to
talk to anyone or anybody.” She decided to separate from him while they were
living in Alabama and said “he tried to take the kid away from me saying that I had
suffered from depression.” She said he asked one of his sisters to call CPS and to
ask them to place the child with him because she was depressed and fought a lot
with the child’s father. Mother acknowledged that when she and Javier’s father
fought, “there was [sic] some altercations that were physical.” She said that Javier
was not present during any episodes of domestic violence, but that Javier’s father
was physically violent toward her when she was pregnant. She said the Department
at that time provided her with therapy and domestic violence classes, which she
participated in for about four weeks until she moved to Houston. She said at that
point she moved her case to Houston and the prior case was closed.

Mother said the last time she used drugs was about a month before trial,
when she used cocaine. She said she knew she could have participated in the drug
testing and asked for help, but did not.

With respect to the court-ordered test in July, Mother acknowledged that she
was present in court that day but said she did not take the test because she was not
doing well mentally. She said, “So, when I heard that what [sic] was going to take
place, I started feeling pretty bad. I felt that I couldn’t go on. And then my
caseworker asked me if I wanted to visit my children. I told him no. I can’t control
this.”

The foster father (referred to also as “Ferdinand”) testified last. He said that
the children resided with him and his spouse in their four-bedroom home, and they
had no other children living with them. They could have the children in separate

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rooms, but had them sleeping in the same room because, he said, “it’s better…for
bonding for them to be in the same room so that they feel protected and together.”
Ferdinand said he was employed in business development and as an athletic trainer
at UT Health Center, and his spouse worked as a real estate agent.

Final Decree

Following trial, on October 26, 2023, the trial court signed its final decree of
termination of the parental rights of each of the children’s parents. With respect to
Mother, the decree found that termination was warranted under sections
161.001(b)(1)(a), (E), (O), (P), and (R) of the Texas Family Code. The decree also
found that termination was in the best interest of the children. Tex. Fam. Code.
161.001(b)(1).

II. ISSUES AND ANALYSIS
A court may terminate the parent-child relationship if the court finds by
clear and convincing evidence that (1) the parent has engaged in at least one
statutory predicate act and (2) termination is in the best interest of the child. See In
re N.G., 577 S.W.3d 230 (Tex. 2019); In Interest of L.G.R., 498 S.W.3d 195, 201
(Tex. App.—Houston [14th Dist.] 2016, pet. denied);; see also Tex. Fam. Code §
161.001(b). While Mother does not challenge any of the four predicate-act
findings made by the trial court trial court, in her second issue, she attacks the trial
court’s termination decree by challenging the evidence to support its best-interest
finding. We first address her due process complaints.

A. Does Mother present reversible error based on any complained-of due
process violation?
Mother’s broadly-worded first issue—“Whether appellant’s due process
rights were violated”—contains two sub-parts. Under the first sub-part, she

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complains that the trial court erred and violated a due process right when it denied
her motion for a continuance because, as she contends, the ruling effectively
“forced her to proceed with ineffective counsel.” Under the second sub-part of her
due process complaint, she complains that her constitutional rights were violated
because she was not provided certain Spanish-speaking accommodations.

Did the trial court err in denying appellant’s motion for continuance?

We review a trial court's denial of a motion for continuance for an abuse of
discretion. Tran v. Nguyen, 480 S.W.3d 119, 124–25 (Tex. App.—Houston [14th
Dist.] 2015, no pet.). A trial court abuses its discretion when it acts unreasonably
or arbitrarily, or without reference to any guiding rules or principles. Barras v.
Barras, 396 S.W.3d 154, 164 (Tex. App.–Houston [14th Dist.] 2013, pet. denied).
We may not substitute our judgment for the trial court's judgment unless the trial
court's action was so arbitrary that it exceeded the bounds of reasonable discretion.
See Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002); Zagorski v.
Zagorski, 116 S.W.3d 309, 313–14 (Tex. App.–Houston [14th Dist.] 2003, pet.
denied).

The record indicates on September 5, 2023, the first day of trial, Mother’s
counsel filed a half-page written motion for continuance (along with an unsigned
motion to withdraw), and orally requested a continuance before the start of trial.
The written motion for continuance references Rule 251 and alleges:

1. The attorney client relationship has deteriorated to the point where
a new attorney needs to be appointed for the mother.
2. That the continuance is not sought for delay only, but that justice
may be done.
3. Wherefore Movant prays the Court to grant this Motion for
Continuance.
The motion contains a verification which is electronically signed by

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Mother’s trial counsel but not by a notary.

Prior to starting trial, the trial judge first heard and ruled on Mother’s trial
counsel’s motion to withdraw. Noting the continued appearances of Mother and
her trial counsel together at previous hearings, the trial court remarked that this
was the first time he was aware of this issue and denied the motion to withdraw.

Mother’s counsel then orally moved for continuance. The exchange on this
motion was as follows:

MS. MORALES: Judge, I'm going to do -- still ask for a continuance.
I have been in the hospital for the past two weeks. I have not had time
to accurately prepare for trial since the State changed their goal.
THE COURT: Well, they changed it in -- it was July. Right?
MS. MORALES: No. They just informed me by e-mail while I was in

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the hospital that the goal has changed.
THE COURT: Because I'm looking here. You were present on July
18th when I did not approve their goal of family reunification.
Correct?
MS. MORALES: Correct. But the goal was officially changed by then
while I was in the hospital these last two weeks, Judge. And, because
of my medical condition and the fact that I was in the hospital, I have
not had the time to accurately prepare for a trial on this case, so it
would be appealable immediately if we go forward with that.
THE COURT: Well, I'm not sure it would be. It might be on you.
MS. MORALES: Ineffective assistance of counsel, Judge. I'm telling
you right now that's how it's going to go.
THE COURT: So, you've been ineffective the whole last year?
MS. MORALES: I'm current -- right now ineffective. I'm standing
here with a broken back and in pain.
THE COURT: My question is, if you've been here every hearing,
most of what the evidence is is simply stuff that we already did in
prior hearings, including the one that you were here on July 18th for
and so, I'm not sure, is it your fault that Mother hasn't been in contact
with you?
MS. MORALES: Judge, I mean, if that's what's needed, I will fall on
the sword. I have been in the hospital. I currently have a broken back -
-
THE COURT: Ms. Morales -- Ms. Morales -- all I want you to do is
tell the truth. That's all you need to do. It's not falling on the sword.
My questions --
MS. MORALES: I have been in the hospital the past two weeks and
have not been able to communicate with Mom at all.
THE COURT: Yeah. But you were out of the hospital before that --
MS. MORALES: For a week. Then I was in the hospital --
THE COURT: Let me finish. Ms. Morales, let me finish. So, I'm
trying to understand what relationship you had with Mother during the
whole case. She’s saying it’s your fault, which probably would be you
dropping below the standard of an attorney, that she has been unable
to contact you for the whole case. You're saying that Mother wasn’t in

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contact with you, didn’t give you her number and other things.
Correct?
MS. MORALES: When she left Santa Maria, Judge, that’s when I lost
contact with her. I have many e-mails back and forth with her where
we do have contact.
THE COURT: When did she leave Santa Maria?
MS. MORALES: In July.
THE COURT: So, you were in contact with her all the way up to
July?
MS. MORALES: Correct.
THE COURT: And you were able to help her with the case. Correct?
MS. MORALES: Correct.
THE COURT: So, I'm still denying your motion. And is your motion
for continuance based on anything different?
MS. MORALES: I have a motion based on the fact that I have not
been able to prepare for trial because I was in the hospital and
currently am standing here with a broken back.
THE COURT: Okay. Well, we are going to start the trial today.
Rule 251 of the Texas Rules of Civil Procedure applicable to a continuance
motion states:

No application for a continuance shall be heard before the defendant
files his defense, nor shall any continuance be granted except for
sufficient cause supported by affidavit, or by consent of the parties, or
by operation of law.
Tex. R. Civ. P. 251

Whether we were to view the record to contain one combined or two
separate motions for continuance, it was (or they were) lacking persuasive support.
The written motion for continuance and the oral motion for continuance were
based on different grounds. The written motion was based on a communication
breakdown between Mother and Mother’s trial attorney. The court noted facts that
illustrated reasonable communication existed between the two generally, and
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suggested that the period of alleged lapsed communication was short and
uneventful. The oral motion, urged after the trial court had denied the motion to
withdraw, was asserted on grounds that Mother’s counsel was not prepared to
address Department’s changed permanency goals, Mother’s trial counsel was
experiencing physical pain, and that she lacked time to prepare for trial due to
recent hospitalization.

The trial court could have reasonably found certain aspects of Mother’s trial
counsel’s oral request unconvincing for reasons uncovered during trial court’s
questioning of her at the hearing. The trial court could have reasonably discredited
the allegation that the Department’s changed permanency goal or the court’s
approval of it presented a surprise. The only ground not dismantled by the trial
judge, trial counsel’s physical back pain, may have been diminished by the fact,
pointed out by counsel, that she was in fact standing in court. Finally, Mother has
not shown against the trial record how her counsel’s performance could have
improved had the motion been granted, nor has mother pointed to any specific
evidence she was prevented from presenting. See Henderson v. State, No. 14-18-
00926-CR, 2020 WL 5834224, at *6 (Tex. App.—Houston [14th Dist.] Oct. 1,
2020, pet. ref’d)(affirming denial of motion for continuance when appellant failed
to illustrate the harm—"identify a witness who might have been called to testify,
evidence that might have been offered, or information that might have been
beneficial to his case”). The trial judge could have reasonably concluded the lack
of support offered with the written motion or oral motion were too far at odds with
the trial court’s expressed concerns prompt resolution as serving “the best interests
of the children.”

Does the record contain an adequately preserved and briefed complaint of a
constitutional violation concerning the right to any translation or interpretive
services?
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We next address the second sub-part of Mother’s due process complaint, her
complaint that she was deprived of constitutional rights by not being provided
certain Spanish-speaking accommodations. The law affords due process
protections, including a parent’s right to have an affidavit interpreted into a
language she understands apply to proceedings to terminate parental rights. In re
L.M.I., 117 S.W.3d 1, 4 (Tex. App.—Houston [14th Dist.] 2001), aff'd, 119
S.W.3d 707 (Tex. 2003). Mother contends that there was no evidence showing she
was ever provided with a Spanish translation of her family service plan, “provided
with services or evaluations in Spanish or with interpreters,” or that “drug
treatment services were in Spanish or whether she was offered assistance with a
relapse prevention program in English or Spanish.” In its response, the Department
argues Mother failed to preserve this issue but also cites various instances in the
record where Mother was provided accommodations.

Mother frames the issue as a “no evidence” complaint, and in doing so
Mother does not point to (nor can we find) any instance in the record at trial
indicating that she ever lodged a request, objection, motion or other complaint in
the trial court in connection with her complaint on appeal, i.e., complaining of the
lack of Spanish-language services, or lack of translation services beyond those
provided to her. See, e.g., Interest of A.M.M., No. 13-21-00114-CV, 2021 WL
4819079, at *2 (Tex. App.—Corpus Christi–Edinburg Oct. 15, 2021, no
pet.)(illustrating a trial record preserving similar argument). Like most appellate
complaints, to preserve such a due process complaint for appeal, Mother was
required to first raise the issue in the trial court. Tex. R. App. P. 33.1 (requiring, as
a prerequisite to appellate review, that a party present the complaint to the trial
court through a timely request, motion, or objection, state the basis for the
complaint, and obtain a ruling); see In re L.M.I., 119 S.W.3d at 710–11; see also In

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re B.L.D., 113 S.W.3d 340, 349–55 (Tex. 2003) (discussing preservation of error
in termination cases); see also In Interest of F.E.N., 542 S.W.3d 752, 768 (Tex.
App.—Houston [14th Dist.] 2018, no pet.)(finding no preservation of due process
complaint upon a record that “show[ed] no indication that Father objected to the
Department's failure to provide a translator during its interactions with him or the
failure to provide a translated family service plan”); Herrera v. Mata, No. 09-20-
00170-CV, 2022 WL 17002128, at *6 (Tex. App.—Beaumont Nov. 17, 2022, no
pet.)(denying a collateral attack on the judgment without record showing trial court
denied request to have the documents translated before she signed them); Perez v.
Old Am. Cnty. Mut. Fire Ins. Co., No. 14-09-00456-CV, 2010 WL 3168389, at *3
(Tex. App.—Houston [14th Dist.] Aug. 12, 2010, pet. denied)(finding complaint
that trial court denied due process rights by failing to appoint a licensed translator).
Mother’s testimony about the manner in which services were provided to her does
not equate to an objection, request or motion. Without any record of a
complained-of error by the trial court, we have nothing preserved regarding the
provision of translation or interpretive services to review.

Having considered each component of Mother’s first issue, we overrule
Mother’s first issue in its entirety.

B. Is the trial court’s order terminating Mother’s parental rights supported
by legally and factually sufficient evidence to support the trial court’s finding
that termination is in the best interests of the children?

In her second issue, Mother challenges the factual and legal sufficiency of
the evidence to support the trial court’s finding that termination of the parent-child
relationship serves the best interests of the children.

Termination of the parent-child relationship is a drastic remedy and is of
such weight and gravity that due process requires the state to justify termination by

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clear and convincing evidence. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002); see also
In re L.G.R., 498 S.W.3d 195, 201 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied). 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. Tex. Fam. Code § 101.007. This
heightened burden of proof results in a heightened standard of review when
evaluating the sufficiency of the evidence. In re L.G.R., 498 S.W.3d at 202.

Under a legal sufficiency review, we look at 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.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. Id. We disregard all
evidence that a reasonable factfinder could have disbelieved or found to have been
not credible, but we do not disregard undisputed facts. See In re Commitment of
Stoddard, 619 S.W.3d 665, 674 (Tex. 2020).

Evidence is factually insufficient 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.” In re J.F.C., 96 S.W.3d at 266.

There is a strong presumption that the best interest of the child is served by
keeping the child with his natural parents. In re R.R., 209 S.W.3d 112, 116 (Tex.
2006) (per curiam) (citing Tex. Fam. Code Ann. § 153.131(b)); In re D.R.A., 374
S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.). However,
prompt and permanent placement of the child in a safe environment is also
presumed to be in the child’s best interest. In re S.R., 452 S.W.3d at 366 (citing
Tex. Fam. Code Ann. § 263.307(a)). Proof of acts or omissions under section

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161.001(b)(1) is probative of the issue of the child’s best interest. See id. The
considerations that the factfinder may use to determine the best interest of the
child, known as the Holley factors, include:

(1) the desires of the child;
(2) the present and future physical and emotional needs of the child;
(3) the present and future physical and emotional danger to the child;
(4) the parental abilities of the person seeking custody;
(5) the programs available to assist the person seeking custody in
promoting the best interest of the children;
(6) the plans for the child by the individuals or agency seeking
custody;
(7) the stability of the home or proposed placement;
(8) acts or omissions of the parent that may indicate the existing
parent-child relationship is not appropriate; and
(9) any excuse for the parent’s acts or omissions.
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (interpreting former
Tex. Fam. Code § 15.02 (since amended)); see also Tex. Fam. Code Ann. §
263.307(b) (listing factors to be considered in evaluating “whether the child’s
parents are willing and able to provide the child with a safe environment”).

Holley factor (1), Children’s Desires

Mother contends there was no evidence relevant to first Holley factors
regarding the children’s desires, presumably due to their age. However, when
children are too young to verbally express their desires, Texas courts permit the
fact finder to consider observations of the children’s interactions with the parent or
foster family, including any perceived “bonding” between the child and parent or
caretaker. See Interest of M.D., No. 14-20-00244-CV, 2020 WL 5626273, at *8
(Tex. App.—Houston [14th Dist.] Sept. 21, 2020, no pet.)(finding first Holley
factor neutral after considering evidence of bonding observed with father during

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visits and evidence of “a secure attachment to Foster Parents”).

The Department’s caseworker Tenaye Grant testified that the two boys were
“very much” bonded to their foster parents. Grant observed that Javier never cried
at the end of his visits with Mother and was instead“always excited to go back
home.” She testified that there had been no negative impact on either child after
Mother’s visits were suspended, and she had not seen Javier ask for Mother.
Gonzalez also testified that the children were “very bonded” to their foster
caregivers and described the relationship as “very loving.” She said that Mother’s
visits went well and the children seemed happy to see Mother but had not asked
about her since the visits stopped, three months before. Like Grant, Gonzalez did
not believe that stopping the children’s contact with Mother had affected the
children in any way and she had not observed that the children were upset not to
see their mother.

Thus, the testimony at trial concerning the first Holley factor provides
neutral to some weight on the scale favoring termination of Mother’s parental
rights is in the children’s the best-interest.

Holley factor (2), The current and future emotional and physical needs of the child
Mother does not address any evidence adduced relevant to the second Holley
factor, though the record contains relevant testimony reflecting Mother’s
reluctance to direct attention towards Jetson and pattern of misfeeding Javier.
Grant testified that during visits, Mother appeared fidgety, was “possibly…under
the influence,” and failed to pay close attention to Jetson. Ferdinand testified that
they sent a journal with the children to their visits with Mother to give Mother
weekly updates about the children. He explained they received little response back
from Mother and what responses they did receive were all about Javier. Later,
during the Safe Babies program visits, Ferdinand noted that Mother “preferred

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[Javier] over [Jetson],” and the foster fathers spent most of the time holding Jetson
during those visits.

Grant testified that during the visits Mother continued to overfeed Javier and
did not follow any recommendations about appropriate meals for the child. The
Safe Babies program, Grant said, assisted Mother with proper feeding and
demonstrated healthy alternatives and options for food for the children. However,
Mother continued to demonstrate the same patterns of behavior before those
services were provided. Ferdinand testified that, during the Safe Babies program,
he and his spouse showed Mother what they fed the child and communicated to her
about managing the child’s weight during each of the five visits they shared with
Mother. However, Ferdinand said Mother failed to follow their advice and on one
subsequent visit brought Javier “two ten-piece chicken McNugget meals with a
large fry and a large Coke…for his dinner.”

This evidence supported the conclusion, therefore, that Mother proved
unable to change her behavior in order to meet the children’s needs, while the
foster caregivers made significant efforts demonstrating a commitment and ability
to care for the children and support their ongoing well-being. Moreover, foster
parents proved capable of addressing the children’s unique vulnerabilities and
special needs.

A fact finder may infer from a parent’s past inability to meet the child’s
physical and emotional needs that the parent is unable or unwilling to meet the
child’s needs in the future. See In re J.D., 436 S.W.3d 105, 118 (Tex. App.—
Houston [14th Dist.] 2014, no pet.). Evidence of a parent's unstable lifestyle can
support a factfinder's conclusion that termination of parental rights is in the child's
best interest. In re S.B., 207 S.W.3d 877, 887 (Tex. App.—Fort Worth 2006, no
pet.). Lack of stability, including a stable home, supports a finding that the parent

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is unable to provide for a child's emotional and physical needs. See In re G.M.G.,
444 S.W.3d 46, 59–60 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see
also Doyle v. Tex. Dep’t of Protective & Regulatory Servs., 16 S.W.3d 390, 398
(Tex. App.—El Paso 2000, pet. denied) (parent's failure to provide stable home
and provide for child's needs may contribute to finding that termination of parental
rights is in child's best interest).

Accordingly, our consideration of the trial evidence relevant to the second
Holley factor weighs in favor of terminating Mother’s parental rights.

Holley factor (3), The current and future physical danger to the child

A parent’s drug use supports a positive finding on the third Holley factor that
termination is in the best interest of the child. Interest of D.M.M., No. 14-18-
00750-CV, 2019 WL 546029, at *8 (Tex. App.—Houston [14th Dist.] Feb. 12,
2019, pet. denied). The factfinder can give “great weight” to the “significant
factor” of drug-related conduct. In re K.C., 219 S.W.3d 924, 927 (Tex. App.–Dallas
2007, no pet.); see also, In re J.J.W., No. 14-18-00985-CV, 2019 WL 1827591, at
*6 (Tex. App. Houston [14th Dist. 2019, pet. denied) (“Drug abuse and its effect
on the ability to parent can present an endangering course of conduct.”).
Moreover, a mother’s use of drugs during pregnancy is considered endangering
conduct to be evaluated in determining the best interest of a child. In re I.R., No.
14-14-00626-CV, 2014 WL 6854747, at *8 (Tex. App.—Houston [14th Dist.] Dec.
4, 2014, no pet.).

Several witnesses, including Mother, confirmed that Mother had used
cocaine and methamphetamines during her pregnancy with Jetson. Ferdinand
testified that when Jetson was initially placed in his home the child showed signs
of substance abuse. Jetson “had jitters,” his arms were “shaky and jittery,” and had
one episode in which he became unresponsive and had to be taken to the

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emergency room. Even if we presume without concluding that mother’s drug use
had no long-term effects on Jetson, the record at least provides some evidence that
Mother’s drug use brought about unintended harm to her child.

Moreover, the record shows Mother continued to use illegal drugs during the
suit despite the services provided her to address that conduct and her sporadic
cooperation. Although Mother enrolled and successfully participated in in-patient
substance abuse treatment and completed that treatment in March of 2023, she
admitted at trial that she relapsed during the following April when she used
cocaine with her roommate. And although she re-entered treatment for 30 days,
she left the program, refused to return, and thereafter refused to participate in
further drug testing requested by the Department. She told Grant that, “she tested
enough.” Grant testified that during the three months leading to trial, Mother had
missed multiple tests, including testing ordered by the court in July, and that her
visits with the children were suspended as a result. Mother admitted she last used
cocaine one month before trial.

Mother’s positive drug test results and refusals to test are also supportive of
the court’s consideration of present and future physical and emotional dangers to
the child. See In re I.W., 14-15-00910-CV, 2016 WL 1533972, at *6 (Tex. App.—
Houston [14th Dist.] Apr. 14, 2016, no pet.) (stating a parent’s “refusal to submit
to [a] drug test may be treated by the trial court as if he had tested positive for
drugs.”).

Because the record contains evidence showing the possibility that Mother’s
drug problem would persist and thus present a future emotional danger to Javier
and Jetson, the third Holley factor supports the trial court’s best-interest finding.

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Holley factors (4) and (6), The parental abilities of the person seeking custody and
plans for the child by the person seeking custody
Mother had two other children living in Honduras for whom she failed to
provide any evidence of her ability to parent. Interest of L.A.V., No. 14-21-00430-
CV, 2022 WL 969576, at *11 (Tex. App.—Houston [14th Dist.] Mar. 31, 2022,
pet. denied)(finding probative lack of record concerning abilities to parent other
children). Mother also failed to display essential parenting behavior of self-control
during the pendency of the case. Gonzalez testified that Mother reported taking
medication to treat her mental health but nonetheless continued to make suicidal
statements and “blames all of us for her mental health and [said] she will hurt
herself if she cannot get her children back.” Opportunities to visit Javier and Jetson
were lost when Mother elected to discontinue participation in the family service
plan. Mother acknowledged her difficulties with her mental health. When asked
why she refused to take the court ordered drug test in July of 2023, she said she
was “not doing well… mentally,” was “feeling pretty bad,” and “that I couldn’t go
on….” Any plans for Mother to have custody would necessarily begin with
Mother committing herself to long-term recovery.

At trial Mother testified that one of her sisters (“maternal aunt”) was willing
to adopt the two boys and that she wanted them placed with her if the department
chose not to place them with Mother. However, Grant testified that the Department
had concerns regarding the maternal relatives because they initially declined taking
placement of the children when the suit began and it was not until June of 2023,
nine months later, that they asked to be considered as possible caregivers. The
Department performed a home study on the maternal aunt but was unable to
conduct background checks on some of the household members—Mother’s father
and her younger sister—because they lacked government identification. On appeal
Mother takes issue with the Department’s efforts to evaluate her sister’s home, and
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suggests the department has discriminated based on their immigration status or
used their status as a basis for not conducting further investigation. However,
Grant explained she was unsure how to proceed when she was unable to gather
necessary information due to the residents’ lack of identification, which is not
inherently tied to immigration status. Mother testified that the household members
were working to provide the Department with the identification on the day of trial;
that her father had provided a passport and her younger sister was
contemporaneously at the Honduras consulate attempting to secure those
documents.

Notwithstanding the incomplete background checks, the record contains
other evidence supporting the Department’s reluctance to place the boys with the
maternal aunt–specifically, expressing concerns with the sleeping arrangements
where the boys would sleep with one adult and another child, and lacked proof that
anyone in the household, in the absence of driver’s license, could legally transport
the children.

Both foster parents were employed and lived in a four-bedroom home.
Ferdinand testified that he and his spouse had good support systems, and that
relatives and family friends visited regularly. He testified that their home could
accommodate the children in separate rooms, but at the time had them sleeping in
the same room because, he said, “it’s better…for bonding for them to be in the
same room so that they feel protected and together.” No evidence suggested any
adults slept in the same room. They had enrolled the children in a bilingual
daycare, signed Javier up for soccer, and planned to involve Jetson in similar
activities. Ferdinand testified that he and his spouse loved the children, wished to
support them “in any way,” and “would love for them to remain a part of our
family.” He said they wished to provide the children with what whatever they

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chose “in regards to education or post high-school or whatever trade school…,”
and “we are a hundred percent behind them and will continue to be behind them.”
He also said they felt it was important for the children to continue to have contact
with their biological family and would “absolutely” consider maintaining the
children’s relationship with Mother if she “were to get on the right track.” The
foster parents were able to provide the children with the physical and emotional
stability Mother lacked, and had plans for the children’s future care, and wished to
adopt the two boys.

Evidence pertinent to the fourth and sixth Holley factors weighs heavily in
favor of terminating Mother’s parental rights.

Holley factor (5), Programs available to assist the person seeking custody in
promoting the best interest of the child.

Mother contends there was no evidence relevant to the fifth Holley factor
regarding any programs available to assist in promoting the children’s best interest.
The Department has not taken exception. We note that the record shows both
mother and foster family participated in sessions in a program called “Save
Babies” program. Our consideration of evidence pertinent to this factor is neutral.

Holley factor (7), Stability of the home
From the time the termination suit began and throughout its pendency,
Mother lacked stable housing or employment. When the Department investigated
the initial report which brought the children into its care, Mother reported that she
was unemployed and living in an apartment left for her by her sister’s ex-boyfriend
who was living out of the country. She had little family support as most of her
family lived in Honduras, and she said she did not interact with her family
members who lived in Houston because they did not want her to give birth to
Javier. Mother’s family service plan confirmed that Mother admitted to not having

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employment or stable housing, nor any way to support her children. Mother was
provided with a residence as part of her in-patient substance abuse treatment
program, and lived there from September of 2022 until she relapsed and chose to
leave on May 31, 2023. Shortly thereafter, the evidence shows she was again
unemployed and lacked stable housing. She reported during her psychiatric
evaluation in June of 2023 that she was unemployed and living in an apartment
“through housing.” The Child Advocate report detailed Mother’s account that after
she left treatment, she was again living in an apartment provided by her brother-in-
law. As of August 2023, shortly before trial, she reported that she had her own
residence, and told Grant that she was also employed. However, she failed to
provide proof of either, as was required by her family service plan. Both Grant and
Gonzalez testified at trial that they asked Mother for proof of her housing and
employment, but neither received anything in return. Grant testified that she asked
Mother for “anything” showing she was employed, including an email address or
contact information for the employer because she understood that Mother was
being paid “under the books.” However, Mother never provided proof of either.

Accordingly, evidence implicating the seventh factor suggests that
termination of Mother’s parental rights supports the best-interest finding.

Holley factors (8) and (9), Acts or omissions of the parent that may indicate that
the parent- child relationship is improper, and any excuses for such acts or
omissions.

Evidence supporting termination under the grounds listed in section
161.001(b)(1) also can be considered in support of a finding that termination is in
the child’s best interest. See C.H., 89 S.W.3d at 27 (holding the same evidence
may be probative of both section 161.001(b)(1) grounds and best interest).
Specifically, here the trial court could properly consider that Mother did not
comply with the court-ordered service plan for reunification with the child. See In
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re E.C.R., 402 S.W.3d 239, 249 (Tex. 2013). The record firmly established
Mother’s failure to complete her family service plan, a finding uncontested by
Mother in this appeal.

Mother’s failure to complete the family service plan, supported in part by the
evidence of Mother’s relapse, her admitted refusal to engage with the Department
at times, and testimony describing Mother’s suicidal comments since her relapse
leading up to trial, lend support to the conclusion that Mother, having not yet
proven an ability to address her own issues, would be challenged to provide a
proper parent-child relationship.

In light of these considerations, we conclude evidence implicating the eighth
and ninth factors show that termination of Mother’s parental rights support the
best-interest finding.

Summary of Holley Analysis

Applying the applicable Holley factors to the evidence, we conclude that
legally and factually sufficient evidence supports the trial court’s finding that
termination of Mother’s parental rights is in Javier and Jetson’s best interest. See
Interest of D.M.M., 2019 WL 546029, at *8; In re E.C.R., 402 S.W.3d at 249; See
In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.–Fort Worth 2006, no pet.)
(considering the parent’s drug use, inability to provide a stable home, and failure to
comply with a family-service plan in holding the evidence supported the best-
interest finding). Based on the evidence presented, the trial court reasonably could
have formed a firm belief or conviction that terminating Mother’s rights served the
children’s best interests so that they quickly could achieve permanency through
adoption. See In re T.G.R.–M., 404 S.W.3d 7, 17 (Tex. App.–Houston [1st Dist.]
2013, no pet.); M.G.D., 108 S.W.3d at 513–14.

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III. CONCLUSION

Having overruled each of the issues presented, we affirm the trial court’s
judgment terminating Mother’s parental rights to Javier and Jetson.

/s/ Randy Wilson
Justice

Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.

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