In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-16-00271-CV 

IN THE INTEREST OF M.M.S. AND C.E.S., CHILDREN 

 

 

On Appeal from the 316th District Court 

Hutchinson County, Texas 

Trial Court No. 41, 639, Honorable James M. Mosley, Presiding 

 

October 6, 2016 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. 

E.S., the mother of M.M.S. and C.E.S.,1appeals the trial court’s judgment 

terminating her parental rights to the children.2 The children were seven and five years 

old, respectively, at the time of the trial. The trial court found by clear and convincing 

evidence that E.S.’s parental rights should be terminated pursuant to subsections (D), 

(E), (O), and (P) of Section 161.001(b)(1). See TEX. FAM. CODE ANN. 

 

1

Pursuant to Texas Rule of Appellate Procedure 9.8 the children and all parties will be referred to 

by their initials. 

2

The father, N.S., has not appealed the trial court’s judgment terminating his parental rights and 

is not a party to this appeal.
2

§ 161.001(b)(1)(D), (E), (O), (P) (West Supp. 2016).3 The trial court also found by clear 

and convincing evidence that termination of E.S.’s parental rights was in the best 

interest of the children. See § 161.001(b)(2). E.S. appeals on the ground that the best 

interest finding entered by the trial court is not supported by legally or factually sufficient 

evidence. She does not contest the trial court’s findings regarding the predicate acts 

upon which the termination was based. We will affirm.

Factual and Procedural Background

E.S. has a long history of involvement with the Department of Family and 

Protective Services (Department). Additionally, E.S. has had involvement with the 

Oklahoma Department of Human Services, that state’s equivalent to the Texas

Department of Family and Protective Services. The current case arose out of an 

incident on October 25, 2014. Officer Stephanie Willoughby went to the apartment that 

E.S. shared with her boyfriend to conduct a “welfare check.” Upon arriving, Willoughby 

found that E.S. had been assaulted by her boyfriend, Clay, after she had forcefully 

kicked him out of the apartment. Willoughby knew that E.S. had several warrants 

outstanding for traffic offenses and, as part of the assault investigation, arrested E.S. for 

these warrants. After ascertaining that there was no one to take care of the children, 

Willoughby contacted the Department. 

The Department’s investigator, Wanda Trim, investigated the incident. At the 

time of her visit with E.S., E.S. was in jail on the warrants. E.S. advised Trim that she 

awoke to find Clay smoking marijuana in the apartment and asked him to leave. This 

confrontation then escalated into Clay’s assault of E.S. While Trim was interviewing 

E.S. at the jail, E.S. denied that she had been using drugs and asserted she was simply 

 

3

Further reference to the Texas Family Code will be by reference to “Section ____” or “§ ____.”
3

trying to protect the children from Clay’s drug usage. The children were placed with 

E.S.’s sister. This placement lasted for approximately one month, when the sister 

returned the children to the Department stating she could not continue to take care of 

the children due to their special needs.

Despite stating she was not using drugs, on November 6, 2014, E.S. was 

administered a drug test and tested positive for amphetamine, methamphetamine, and 

marijuana. Further, E.S. admitted to Trim that she had used drugs while caring for the 

children and that Clay had also used drugs in the presence of the children. The 

daughter, M.M.S., was administered a hair follicle drug test on November 5, 2014, and 

the test was positive for methamphetamine. As a result of E.S.’s continued use of 

drugs, the Department then filed this petition seeking termination on December 30, 

2014.

During the trial, the evidence showed that E.S. had a long-standing addiction to 

drugs. Specifically, E.S. admitted that she had been addicted to methamphetamine for 

years. E.S. had two arrests for drug-related offenses in 2004. Her first arrest that year 

was for delivery of methamphetamine in July of 2004, followed by an arrest for 

possession of the same drug in December 2004. She was placed on deferred 

adjudication in 2005; however, her deferred adjudication was adjudicated, and E.S. was 

sentenced to serve five years in prison. According to her testimony, E.S. used 

methamphetamine on an almost daily basis between 2004 and 2006 before being sent 

to prison. 

E.S. was released from prison on parole in October 2008. At that time, E.S. 

began living with N.S., the father of the children. N.S. testified that he and E.S. used 
4

methamphetamine on a regular basis when they were together. This usage included 

the period of time after they had the children of the marriage. 

M.M.S. was born on May 23, 2009, prematurely. She has suffered from 

difficulties breathing since birth. M.M.S. has been in an early childhood intervention 

program since shortly after her birth. M.M.S. has significant developmental delay issues 

and has been diagnosed as mildly retarded. C.E.S. was born July 1, 2011. Since early 

on, he has demonstrated significant issues regarding anger management. 

E.S. admitted that she began using methamphetamine intermittently after M.M.S. 

was born. E.S. was arrested for possession of marijuana and a parole warrant in 2010. 

As a result of this arrest, E.S. spent seventy-seven days in jail. In 2012, E.S. was 

contacted by the Department regarding a report that she was using methamphetamine. 

E.S. was scheduled for a drug test but failed to appear. Instead, E.S. took the children 

to Oklahoma. E.S. testified she fled to Oklahoma with the children because she knew 

she could not pass the drug test. 

While E.S. was living in Oklahoma with the children, they were removed from her 

care due to allegations relating to drug usage and because of her open case in Texas. 

E.S. testified that she completed her service plan in Oklahoma and the children were 

returned to her possession on a trial basis in August 2013 and fully in December 2013. 

The Oklahoma case was dismissed in February 2014. Yet, within two weeks after 

returning to Texas, E.S. was arrested for possession of a controlled substance. E.S. 

admitted that she returned to using methamphetamine after returning to Texas. 

In June or July of 2014, E.S. became involved with Clay. E.S. admitted that Clay 

was a methamphetamine user. She further admitted that she did use 
5

methamphetamine with Clay while the children were living in the home with them. Clay 

was the boyfriend who assaulted E.S. in the presence of the children in October of 

2014. 

During the trial, a significant part of the testimony dealt with the medical problems 

faced by M.M.S. M.M.S. has had issues with her lungs since her birth. Lori Williams, 

the nurse at the elementary school where M.M.S. attended, testified that on October 17, 

2014, M.M.S. came to school and appeared to be “really sick.” According to Williams, 

M.M.S. was suffering from increased respiration rate and increased heart rate. Williams 

attempted to contact E.S., but the phone number she had for E.S. was not a working 

number. The child’s teacher’s aide rode home on the bus with M.M.S. The following 

Monday, Williams again noticed that M.M.S. appeared to be sicker. Williams again 

attempted to contact E.S. to no avail. Williams finally left a voicemail message with 

M.M.S.’s grandmother. On that Monday, Williams concluded that M.M.S.’s oxygen level 

was too low and she appeared to be panting and struggling to breath. Williams 

consulted a nurse practitioner at a nearby clinic and, based on that discussion, called an 

ambulance to take M.M.S. to the hospital. 

Because Williams could not contact E.S., she contacted the sheriff’s office and 

asked that they try to locate E.S. While in the ambulance, M.M.S. was given oxygen, 

steroid shots, and breathing treatments. At the hospital, M.M.S. was diagnosed with an 

upper respiratory infection. 

E.S. arrived at the hospital approximately thirty minutes after M.M.S. While

talking to E.S., Williams attempted to get current contact information for her, to include 

an address and working phone number. E.S. declined to give Williams the information 
6

stating that she had active warrants and did not want to give that information out. 

Williams testified that E.S. did not seem to be appropriately concerned with M.M.S.’s 

welfare. Upon M.M.S.’s discharge from the hospital, E.S. was advised to make sure 

that M.M.S. receive her breathing treatments at home in addition to those that would be 

given to her at the school. After M.M.S. continued to come to school suffering from 

apparent breathing difficulty, Williams contacted the Department over her concerns that 

M.M.S. was not receiving her breathing treatments at home. 

When E.S. was arrested during the domestic assault investigation, Williams was 

asked to care for C.E.S. while E.S. was in jail. Williams agreed to keep C.E.S. for a 

week under the Department’s safety plan while E.S. was in jail. However, although E.S. 

had agreed to contact the Department when she was released from jail, she failed to do 

so. The investigator for the Department, Trim, eventually tracked E.S. down at a leather 

shop. All E.S. could say regarding her failure to contact the Department when she was 

released from jail was that it was just bad judgment on her part. E.S. admitted during 

her testimony that, during this time, she continued to use methamphetamine while 

caring for M.M.S.

The testimony at trial revealed that E.S. had agreed to a service plan of various 

steps necessary for her to regain possession of her children. Initially, E.S. signed the 

service plan on February 11, 2015. After a new caseworker had been assigned the 

case, E.S. again reviewed the service plan with her new caseworker, Cristin Davis. 

Davis testified that E.S. had failed to complete the required psychological evaluation, 

did not follow through with inpatient treatment as recommended by the OSAR4

evaluation, and failed to remain drug-free. E.S. testified that she did not maintain a 

 

4 Outreach, Screening, Assessment, and Referral Center.
7

drug-free lifestyle. As to the psychological testing requirement, E.S. testified she 

scheduled an appointment for the evaluation but was arrested the day before the 

appointment. Although not mentioned in Davis’s testimony, E.S. admitted that she had 

not maintained any employment prior to being incarcerated. 

At the time of trial, the district attorney where E.S. resided revealed that E.S. had 

pending charges for possession of a controlled substance and tampering with evidence 

that arose from an arrest in February 2014. Also pending at the date of trial was

another possession of a controlled substance charge that arose in February 2015, and 

a pending indictment for credit card abuse that also arose in February 2015. 

After hearing the evidence, the trial court entered a final order in suit affecting 

parent-child relationship that terminated E.S.’s parental rights on the following grounds:

1. Knowingly placing or knowingly allowing the children to remain in 

conditions or surroundings which endanger the physical or emotional wellbeing of the children;

2. Engaging in conduct or knowingly placing the children with persons who 

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

of the children;

3. Failing to comply with the provisions of a court order that specifically 

established the actions necessary for the parent to obtain the return of the 

children;

4. Using a controlled substance, as defined by Chapter 481, Health and 

Safety Code, in a manner that endangered the health or safety of the 

children.

See § 161.001(b)(1)(D), (E), (O), (P) (West Supp. 2016). Additionally, the trial court 

found that termination of E.S.’s parental rights was in the best interest of the children. 

§ 161.001(b)(2). 
8

E.S. does not challenge the trial court’s finding regarding the four predicate acts; 

therefore, we will treat those acts as conceded by E.S. Instead, E.S. only challenges 

the legal and factual sufficiency of the evidence to sustain the trial court’s decision that 

termination was in the best interest of the children. We disagree with E.S. and will 

affirm the trial court’s judgment. 

Standard of Review

The natural right existing between parents and their children is of constitutional 

dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer, 

455 U.S. 745, 758–59, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). A decree terminating 

this natural right is complete, final, irrevocable, and divests for all time that natural right 

as well as all legal rights, privileges, duties, and powers between the parent and child 

except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are 

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846 

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical 

interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89 

S.W.3d 17, 26 (Tex. 2002).

The Texas Family Code permits a court to terminate the parent-child relationship 

if the petitioner establishes both (1) one or more acts or omissions enumerated under 

Section 161.001(b)(1), and (2) that termination of the parent-child relationship is in the

best interest of the child. § 161.001(b). Though evidence may be relevant to both 

elements, each element must be proved, and proof of one does not relieve the burden 

of proving the other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground 

and best interest of the child must be proved, only one statutory ground is required to 
9

terminate parental rights under Section 161.001(b). See In re A.V., 113 S.W.3d 355, 

362 (Tex. 2003). Therefore, we will affirm the trial court’s judgment of termination if 

legally and factually sufficient evidence supports any one of the grounds found in the 

judgment, provided the record shows that it was also in the best interest of the child for 

the parent’s rights to be terminated. See id.

Due process requires the application of the clear and convincing standard of 

proof in cases involving involuntary termination of parental rights. In re J.F.C., 96 

S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2014). “‘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.” § 101.007 (West 2014). This standard, which focuses on whether a 

reasonable jury could form a firm belief or conviction, retains the deference a reviewing 

court must have for the factfinder’s role. In re C.H., 89 S.W.3d at 26.

When we employ the clear and convincing evidence standard, we are not saying 

that the evidence must negate all reasonable doubt or that the evidence is required to 

be uncontroverted. See In re R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, 

no writ). We may not substitute our judgment for that of the factfinder; rather, we must 

still provide due deference to the decision of the factfinder. See In re A.B., 437 S.W.3d 

498, 503 (Tex. 2014). The factfinder is the sole arbiter when making determinations 

regarding the credibility and demeanor of the witnesses. See id.

When reviewing the legal sufficiency of the evidence supporting an order 

terminating parental rights, we look at all the evidence in the light most favorable to the 
10

finding to determine whether a reasonable trier of fact could have formed a firm belief or 

conviction as to the truth of the allegations sought to be established. See In re J.F.C., 

96 S.W.3d at 265–66. “To give appropriate deference to the factfinder’s conclusions 

and the role of a court conducting a legal sufficiency review, looking at the evidence in 

the light most favorable to the judgment means that a reviewing court must assume that 

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

could do so.” Id. at 266. In other words, we will disregard all evidence that a 

reasonable factfinder could have disbelieved or found to have been incredible. Id.

When reviewing the factual sufficiency of the evidence supporting a judgment of 

termination, we determine “whether the evidence is such that a factfinder could 

reasonably form a firm belief or conviction about the truth of the [Department]’s 

allegations.” In re C.H., 89 S.W.3d at 25. In conducting this review, we consider 

whether the disputed evidence is such that a reasonable factfinder could not have 

resolved the disputed evidence in favor of its finding. See In re J.F.C., 96 S.W.3d at 

266. “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.

Analysis

We begin our analysis with the reminder that E.S. has not appealed the finding of 

the trial court regarding any of the statutory predicate acts. This being said, we are 

mindful that evidence proving one or more of the statutory predicate grounds for 
11

termination can also be probative evidence that termination is in the best interest of the 

children. See In re C.H., 89 S.W.3d at 28.

Turning to the evidence, we note that, by E.S.’s admissions during testimony, the 

following are true:

1. E.S.continued to use methamphetamine during the pendency of the suit 

to terminate her parental rights.

2. She was incarcerated at the time of her trial.

3. She was facing further charges at the time of the trial.

4. She had been the victim of a domestic assault from her boyfriend, Clay, 

yet began seeing him again after she was released from jail.

5. She did not complete the service plan as agreed with the Department.

6. She did not have any definite plans for the children if she was 

sentenced to further incarceration on any of the pending charges.

7. She had failed to properly supervise M.M.S.’s medical treatment for 

M.M.S.’s chronic lung issues.

8. She failed to pick the children up after she was released from jail.

9. When not incarcerated during the pendency of the termination

proceeding, she was not gainfully employed.

We will use these factual matters in addressing the Holley factors to determine whether 

termination is in the best interest of the children. See Holley v. Adams, 544 S.W.2d 

367, 372 (Tex. 1976).

The Texas Supreme Court outlined a non-exhaustive set of factors to be used in 

determining whether termination of the parent child relationship was in the best interest 

of the children. See id. The factors are as follows: (1) the desires of the children; (2) 

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

emotional and physical danger to the children now and in the future; (4) the parenting 
12

abilities of the parent seeking custody; (5) the programs available to assist the parent; 

(6) the plans for the child by the parties seeking custody; (7) the stability of the home or 

proposed placement; (8) the acts or omissions committed by the parent which may 

indicate that the existing parent-child relationship is not a proper one; and (9) any 

excuse for the acts or omissions committed by the parent. See id.; see also In re D.S., 

333 S.W.3d 379, 383–84 (Tex. App.—Amarillo 2011, no pet.). In applying the Holley 

factors, “a trier of fact may measure a parent’s future conduct by his or her past 

conduct.” In re D.S. 333 S.W.3d at 384. The evidence need not establish proof that all 

of the Holley factors support the conclusion that termination is in the best interest of the 

children and the absence of evidence about some factors does not preclude the 

factfinder from reasonably forming a strong conviction that termination is in the 

children’s best interest. See In re C.H., 89 S.W.3d at 27.

The finding that E.S. has knowingly placed or knowingly allowed the children to 

remain in conditions or surroundings which endanger the physical or emotional wellbeing of the children and engaging in conduct or knowingly placed the children with 

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

of the children supports the proposition that termination of the parent-child relationship 

is in the best interest of the children under the second and third Holley factors. To this 

we add the testimony of E.S. that she continued to use methamphetamine during the 

pendency of this suit and that she, in fact, used methamphetamine around M.M.S. That 

M.M.S. tested positive for methamphetamine is further proof of the endangerment of the 

children. Thus, the second and third Holley factors strongly support the termination of 

the parental rights.
13

Throughout the pendency of this matter E.S. has either been incarcerated or 

moving from location to location. The record reflects that, since the Department took 

possession of the children, E.S. has either been incarcerated or unemployed. E.S. has 

lived with Clay during the pendency of the suit when she knew he was a 

methamphetamine user. Clay committed an act of domestic violence against E.S., yet 

after she made a complaint against him for this domestic violence, E.S. again began 

living with him. This evidence supports the trial court’s decision to terminate the 

parental rights under the fourth Holley factor, that is, the parental abilities of the parent 

seeking custody. 

As to the stability of the home of the parent seeking custody, the seventh Holley 

factor, the evidence at the trial was that E.S. had a proposal to move the children to 

Boyd, Texas, where E.S. believed she had employment or to go to a half-way house in 

Amarillo, Texas. The problem with E.S.’s plans are multiple. First, no one associated 

with the proposed move to Boyd, Texas, testified that such a move was actually a 

realistic alternative. Second, if E.S. went to the half-way house in Amarillo, the children, 

according to E.S.’s own testimony, could not live there. Finally, her proposals 

completely failed to account for the fact that E.S. had additional charges pending 

against her that had not been disposed of. E.S.’s solution for this was for the 

Department to continue with managing conservatorship until such time as she could get

these pending matters resolved. No evidence was adduced as to how long this would 

be. 

On the other side of this equation was the testimony of the Department that the 

children were in a foster care situation that specialized in special needs children. 
14

Although there was no testimony that these foster parents were going to adopt the 

children, such an alternative was still under consideration. Regardless, the children 

were currently receiving the type of care that addressed their specialized needs. This 

factor also supports the trial court’s decision that termination was in the best interest of 

the children.

As to the eighth Holley factor, the acts or omissions of the parent that indicate 

that the current parent-child relationship is not in the children’s best interest, the record 

speaks for itself: continued use of methamphetamine, lack of judgment to protect the 

children, pending criminal cases, and incarceration through most of the time the case 

was pending. These acts and omissions support the trial court’s finding that termination 

is in the best interest of these children.

In the final analysis, based upon the record before the Court, when we look at all 

the evidence in the light most favorable to the finding to determine whether a 

reasonable trier of fact could have formed a firm belief or conviction as to the truth of the 

allegations sought to be established, the evidence is legally sufficient to support the trial 

court’s judgment. See In re J.F.C., 96 S.W.3d at 265–66. Accordingly, the evidence is 

legally sufficient and we overrule E.S.’s contention to the contrary.

When we review the evidence for factual sufficiency, that is whether the 

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

the truth of the Department’s allegations, we conclude that the evidence supports the 

trial court’s determination. See In re C.H., 89 S.W.3d at 25. Accordingly, we find the 

evidence sufficient to support the judgment of the trial court and we overrule E.S.’s 

contention to the contrary.
15

We are mindful that E.S. presented testimony about the steps she had taken to 

become a better parent. E.S. presented a number of different certificates for courses 

that she had completed while incarcerated that dealt with making better decisions, how 

to deal with drug addiction, and how to be a better parent. While she is commended for 

her efforts, the fact that she has demonstrated a recent effort and, possibly, has, in fact, 

had a recent turn-around in her behavior does not totally offset her past behavior. See 

In re J.J., No. 07-13-0017-CV, 2013 Tex. App. LEXIS 11194, at *27 (Tex. App.—

Amarillo Aug. 29, 2013, no pet.) (mem. op.). This is especially true under the facts of 

this case where the evidence shows that E.S. had an earlier conviction yet, when she 

was released from prison, went back to the same conduct that led to her first 

incarceration. The trial court was not required to believe that there has been a lasting 

change in the parent’s attitude since her children were removed. See Pruitt v. D.F.P.S., 

No. 03-10-00089-CV, 2010 Tex. App. LEXIS 10272, at *27 (Tex. App.—Austin Dec. 23, 

2010, no pet.) (mem. op.). 

Conclusion

Having overruled E.S.’s issues regarding the legal and factual sufficiency of the 

evidence to support the trial court’s best interest determination, we affirm the order of 

the trial court terminating her parental rights to the children. 

Mackey K. Hancock

 Justice