## In the C ourt of Appeals Se cond A ppellate Dist rict of Texas at Fort Worth

___________________________ No. 02

- 20

- 00147

- CV

___________________________

On Appeal from the 231st District Court Tarrant County, Texas Trial Court No. 231

- 660900

- 19

Before Gabriel , Birdwell, and Bassel, JJ. Mem orandum Opini on by Justice Gabriel 

### I N THE 

### I NTEREST OF 

### M.S. AND 

### S.S., C HILDREN2 M EMOR ANDUM OPINION
In this p rivate termination ca se, appellant C.B. (Mother) appeals the tri al court ’ s order terminating her p arental r ights to her children M.S. ( Matthew ) and S.S. ( Samant ha ) (co llectively the Children)

. 1 In five i ssues, Mother contends the e vidence was legally and factually insufficient to support termina tion under F amily Code Section 161.001(b)(1)(

D) a nd (E) , the evide nce was legally and factually insufficient to
support the trial court ’ s best

- interest finding, th e trial court erred in asses sing child
support against Mother, the trial c ourt erred in assig ning child support arrears to Appellees C.C. (Mr. Clark) and M.C. (Mrs. Clark) (collectively the Clarks) , and the trial court erred in awarding attorney ’ s fees to the Clarks

. B ecause we will hold that the
evidence w as legally and factually suf ficient to support both the conduct ground s and
the trial cour t ’ s best

- interest finding , and because we wil l h old that Mother ’ s complaints regarding child support , child support arr e a rs, an d at torney ’ s fees are either not preserved or lack merit, we wi ll affirm the trial court ’ s termination order

. I. BACKGROUND
A. T HE C HILDREN ’ S 2008 R E MOVAL AND S UBSEQUENT R ETUR N TO M OTHER Matthew was born to Mother and M.L.S. (Father) in 2004, an d Samant ha was
born to Mother and Fat her in 2005. Father had a criminal his tory , and by his own

1 We use aliases to refer to t he Childre n a n d the parties

. See Tex. F a m. Code Ann. § 109.0 02(d); Tex. R. App. P. 9.8(b)(2).3

a ccount , he was “ a stranger in [the Children ’ s ] lives for most of their li[ves]. ” 2 In
2007 , th e trial cour t entered a n ord er naming Mother and Father joint managing

c onservators of the Children and designated Mother as the conservator with the right
to determin e the Children ’ s primary residence.
In April 2 008, t he D epartment of F amily and Protective Servic e s (t he Dep artment) removed the Children from Mother ’ s care a nd placed them with a fami ly
friend

. When asked about the 200 8 removal at the 20 20 termination hearing, M other
stated that she could not recall wheth er the C hildren were r emove d in 200 8 and cou ld not recall how many times the Children had been removed b y the Depar tment
. 3
Father testified that t he C hildren w ere removed because of “ [a]ll egations of physical abuse and child neglect on behalf of [Mother]. ” When asked about the neglect that
le d to the 2008 removal, Father stated that Moth er had left the C hild ren alone in their apartment by themselves or had left them with fr iends or neighbors who , unable to
reach Mother , l eft the chi ldren unattended

. At the termination hearing, Mother was

a sked whether she had left the Chil dren alone when they were very young , and

2 T h e trial co u rt ter m in ated Fa th er ’ s par ental right s to th e Children in the same or der te rm inating Mother ’ s parental rights

. Fa ther d oes not appeal.

3 Mother testified tha t s he has “ re call and memory issues ” tha t impact “ all dom ains of life. ” She described ho w she would not remember how to get to college class es t hat she had attend ed on a daily bas is. She also described an incident where she was found sleeping in a facult y m ember ’ s office , and she could not recall how she had arrived there. Mother attri bute s the memory issues as a side e ffect of being bi polar

.4

Mother mentioned leaving them alone on one occasion whe n she had to study for a college exam. Mother could not reca ll the Children ’ s ages during that in cident , n or could she recall whether it was that incident that led to the 2008 removal. Mother

s tated that that one incid ent wa s the only time she had left the Children al one. The
Chi ldr e n were la ter returned to Mother in March 2009

. B. T HE C HILDREN ’ S 2011 R EMOVAL , P LACEMENT W ITH THE C LARKS , AND R ETURN TO M OTHER The Depart ment again removed th e Children from Mothe r ’ s care in April 201 1 , and this time, they were placed in foster care with the Clarks and the Clarks ’ children

. When asked about the 20 11 removal at the 20 20 termination hearing, Mother stated
that she did not rem ember wh y the C hildr en were r emoved bu t s aid it was probably
due to a “ h o us ing situatio n. ” Father testified that the C hildren were removed in 2011
because of “ physical abuse and child neglect. ” He stat ed that “ [t]he main physical abuse was done to [

Matthew ] where [Mother] h ad slapped him across the f ace and left

a handprint on one side of his face and caused damage to his eye. ” M r s. Clark
testified tha t sh e saw “ bruises ” and “ marks ” on Matthew ’ s face when he was placed in her home, and she stated that Samantha t old her that Mother had sla p ped Matthew

acr oss the face after he h ad gotten in trou ble at school. Mother testified that she
could not remember whe ther she had slapped Matthew

. She also sta ted that she
could not re member whether ther e had ever been allegations o f phy sical abu se made against her, nor could she remember whether she had ever physically abused the5

Children

. The Children lived with the Clarks from April 2011 until F ebruary 2012 , when they were returned to Mot her.
C. M OTHER V OLU NTARILY P LACES THE C HILDR EN W ITH THE C LARK S IN 2017
Around the be ginning of July 20 17, Mo ther contacted M r s. C lark and inquired about adoption protocols. Mo ther testified that she had reached out to Mrs. Clark
because she was in a “ [f] inancial crisi s. ” 4 Later in July , M other me t wit h M r s . Clark , and M r s. Clark expressed a willingness “ to assist in an y way that [she] could, ” including adopting the Chi ldren if Mother so desired. Mother expressed to Mr s . Clark
that she trusted her and believed that the Clarks had had a pos itive im pact on the
Children ’ s lives and that the Children considered the Clarks to be “ extended fa mily

. ” Mother also expressed that she beli eved the Children “ would be n efit fro m a 2

- parent household with stability and structure. ” The Chi ldren spent seve ral n igh ts in July at
th e Clarks ’ home, and they began staying there regularly soon thereafter. Mother
testified that s he was not abandoning the C h ildren but t hat she felt it was in the
Children ’ s best interest to live with the Clarks. In August 2017, Mo ther sig ned a power of attorney necessary for the Childr en to begin attending school with the
Clarks ’ other ch ildr en. In the e nsuing months, Mother and Mrs. Clark discus sed the possib ility of the C larks adopting the Children , bu t Mother never agreed to ad option.

4 A t the termination hearing, Moth er testified that she had been in college for ap proximately fifteen years and had found it difficul t to fi nd gainful employment with out a college degree.6

Mrs. Clark tes tified t hat Mother ’ s visi ts with the Chil dren were frequ ent at the beginning afte r t he Children began living with the Clarks but that Mother ’ s visits
slowed down over time. Mrs. Clark testified that the Children start ed to not wan t to vis it with Mo ther and that sometime around the end of 2018 to the beginning of
2019 , the Children b egan in sisting that the Clarks attend the visi ts with them. Mother
testified t hat she v

isited the Children month ly.
At t he termination hear ing, M r s. Clark t estified that in the two

- and

- a

- half years
that the Children had been living with her , she and her hus band had been fee ding the
Children , clothing them, providing for their education, and taking them to the doctor
and den tist. 5 M r s. Clark t estified that sh e and her husban d loved the Children , and
th at they desired to adopt them

. Father testifi e d that the Children had express ed their desire to be adopted by the Clarks. Father also testified that the Children are bonded

to the Clarks and that he bel ieve d th at t he Chil dren are “ happy [ , ] safe [ , ] and secure ” at the Clarks. Mothe r also testified that the Childr en are happy with the Clarks and that they ar e doin g well in schoo l. She further testified that the Clarks ’ residence is sa fe
and secur e.

5 As to the dentist , Mother testified that she was concern ed that the Children were not ge tt

ing the dental care they needed from th e Clarks although she admitted that she had not bee n attending the Children ’ s dental visits

. Mrs. Clark testified that she and her husband had p laced the Children on th eir dental insurance and that the Children received cleanings every six months as well as reg u lar exams.7 D. F URTHER A

LLEGATIONS A GAINST M OTHER AND M OTHER ’ S S TAYS IN A P SYCHIATRIC F ACILITY At the termination hearing, M r s. Clark testified that the Chi ldren had made

outc ries of abuse and neglec t to her regarding incid ents that had occurred somet ime
between when the Dep artment returned the Children to Mother in 2012 and when
the Children began living with the C larks again

. Mrs. Clark stat ed that Samantha h ad
told her that she had been left for “ [l]ong p eriods of time home alone

. . . mayb e a week. ” She averred that Sa mantha also told her that Mother had thrown a chair at
her. Mrs. Clark also testified that Matthew told her t hat Mothe r made him “ sta y on the balcony overni ght in his underwear for receiving a b ad gra de. ” Mother de nied making Matthew stay on the ba lcony overnight in his underwear and denied th rowing

“ a table or a l amp ” at Samantha

. At the t ermi nation hearing, Mother also testified that s he had been in a psychiatric trea tment fac ility sometime around September 2019 , although she di d not
know how long sh e was in the facility or why she was in the facility

. Mother ’ s boyfriend test

ifie d that he had taken her to the hospital in Septem be r 2019 because

“ she was ta lking a little bit off . . . a bit of nonsense ” and that “ she wasn ’ t her self. ”
He stated that Mo ther had been in the hospital for “ a little bit more t han two w eeks ”
pur suant to a court order. Mother ’ s boyf ri end stated that she had al so been in a
ps ychiatric treatment facility for two wee ks duri ng the summer of 2018.8

E
. P ROCEDURAL H ISTORY AND THE T RIA L C OURT ’ S T ERMINATION O RDE R
In Nov ember 2018, the Clarks filed a petition to terminate Mothe r ’ s and
Father ’ s parental ri ghts to the Child ren . 6 In thei r original petition, the Clarks s ought
termination of Mother ’ s parental rights b ased on the predica te termination ground s set for th in S ubsections (

B ) , ( C ) , ( F ) , and ( K

) of S ection 161.00 1(b)(1) of the Family
Code. See Tex. Fam. Code Ann. § 161.001(b )( 1 ) ( B ) , ( C ) , ( F ) , (K)

. The Clar k s late r amended their pet ition to also allege th e end ang erment grounds set forth in
S ub se c tions (

D ) and ( E )

. See id. § 161.001(b)( 1 ) (D), (E)

. Follow ing the termination hearing, the trial c ourt issued a ruling terminati ng Mother ’ s parental rights to the
Children under S ubs ections ( D ) and ( E ) and finding that such te rminatio n was in t he
Children ’ s best interest

. The trial court also found that $4,138.68 in child sup port was on hold with the Texas Attorney Genera l ’ s Office ste mming from payments made by Father while the Clarks had possession of the Children , and the t rial cou rt assigned

t hat money to the Cla rks and ordered that it be r el ease d to them. The trial court also
awarded the Clark s their attorney ’ s fees to be paid by Mother. Mother appeals from
that termi nation or der.

6 That petition was in itially filed in Da llas County , but the case was ev entually transfer red to the 23 1st District Court of T arrant County.9 I I. CONDUCT GROUNDS
In h er first iss u e, M oth e r argues that the eviden ce was legally and factually
insu fficient to support termina tion under F amily Code Section 161.001(b)(1)( D) a nd (E )

. A. S TAND ARD OF R EVIEW For a trial cou rt t o ter minate a parent

– child relationship, t he pa rty seeking

ter mination must prove two elements by clear and convincing evidence: 1) that the
parent ’ s actions satisfy one ground listed in Family Code Section 161.001(b) (1);
and 2) that termination is in the child ’ s best interest. Id. § 161.001(b); In re E.N.C. , 384 S.W.3d 796, 803 (Tex. 2012); In re J.L. , 163 S.W.3d 79, 84 (Tex. 2005)

. Evidence is clear and convincing if it “ will produce in the mind of the trier of fact a firm belief

or conviction as to the truth of the allegati ons sought to be established. ” Tex. Fam. Code Ann. § 101.007; E.N.C. , 384 S.W.3d at 802.
To determine whet h er the evidence is legally sufficient in parental

- termination

cases , we lo ok at all the evidence in the light most favorable t o the challenged
find ing s
— here the endangerment findings

— to determine whether a reasonable fact

finder could for m a firm belief o r conviction that the finding is true. In re J.P.B. , 180 S.W.3d 570, 573 (

Tex. 2005) ; see Tex. Fam. Cod e Ann. § 161.001(b)(1)( D), (E)

. We assume th at the fact

- finder settled any evidentiary conflicts in favor of its finding
if a reasonable fact

- finder could have done s o. J.P.B. , 180 S.W .3d at 5 73

. We10

disregard all evidenc e th at a reasonable fact

- finder co uld have disbelieved, and we consider undispute d evidence even if it is contrary to the finding. Id. That is, we consider evidence favorable to the finding if a reasonable fact

- finder could , and we disregard contrary evide nc e unless a reasonable fact

- fin der could not. See id. The
fact

- finder is the so le judge of the witnesses ’ credibility and demeanor. In re J.O.A. , 283 S.W.3d 336, 346 (Tex. 2009). We must perform “ an exacting review of th e enti re record ” in determining t he factual sufficiency of the evidence supporting the termination of a parent

– ch ild relationship. In re A.B. , 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due
deference to the fact

- finder ’ s finding s and do not s upplant them with our own. I n re H.R.M. , 209 S.W.3d 105, 108 (Tex. 2006). Here, w e review the whole record to
decide whet her a fact

- fi nder could reasonably form a firm conviction or belief that the
Clarks proved the endangerment ground s . Tex. Fam. Code Ann. § 161.001(b) (1)(D), ( E) ; In re C.H. , 89 S.W.3d 17, 28 (Tex. 2002). If the fact

- finder reasonably could form
such a firm convic ti o n or belief, then the evidence is factually sufficient. C.H. , 89 S.W.3d at 18

– 19.
B. L AW ON E NDANGERMENT Subsections (

D) a nd ( E) of Texas Family Code Section 161.001(b)(1) provide
that the trial court may order the termination of a pa rent ’ s rights if i t finds by clear
and con vincing evidenc e that a parent has11

(D) kn owingly p laced or knowingly allowed the child to remain i n condi tions or surroundings which endanger the physical or emotional well

- being of the chil d ; [ or ] (E) engaged in conduct or kno wi n gly placed the child with persons wh o engaged in co nduct which endangers the physical or emotional well

- being of the chil d [

. ] Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E)

. E ndange r means to expose to loss or injury, to jeopardize. Tex. Dep ’ t of Hu ma n Servs. v. Boyd

, 727 S.W.2d 531, 533 (Tex. 1987); In re J.T.G. , 121 S.W.3d 117, 125 (Tex. App.

— Fort Worth 2003, no pet.)

. Unde r Subsection 161.001(b)(1)(D), it is necessary

to exa mine the evidence related to the environment of the child to determine if t he
environment was the source of the enda ngerment to the child ’ s physical or emotional
well

- being. J.T.G. , 121 S.W.3d at 12 5. Conduct of a parent in the home can creat e an environment that endangers the physical and emotional well

- being of a child. Id

. As an example, “ abus ive or violent condu ct by a parent or other resid ent of a child ’ s home may produce an environment tha t endangers the p hysical or emotional well

being of a child. ” Id

. Under Subsection 161.001(b)(1)( E) , the relevant inquiry is whe th er e vidence exists that the endangerment of the child ’ s phy sical well

- being was the direct result of the parent ’ s conduct, i ncluding acts, omissions, or fail ures to act. See id. ; see al so Tex. Fam. Code Ann. § 161.001(b)(1) (E)

. Termination under Sub sec ti on (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious

cou rse of conduct by th e parent is required. J.T.G. , 121 S.W.3d at 125

. It is not12

necessary, however , that the parent ’ s co nduct be directed at the chi ld or that the child actually suffer injury. Boyd , 727 S.W.2d at 533; J.T.G. , 121 S.W.3d at 125. The specific danger to a chi ld ’ s well

- bei ng may be inferred from parental misconduct standing
al one. In re R.W. , 129 S.W.3d 732, 73 9 (Tex. App.

— Fort Worth 2004 , pet. denied).

“ As a general rule, conduc t that subjects a child to a life of uncertainty and instab ility endangers th e phy si cal and emotional w ell

- being of a child. ” Id. Addi tionally, a
parent ’ s mental sta te may be considered in determining wh e th er a child is endangered if that mental state allows the parent to engage in conduct jeopardizing the child ’ s physical or emotional well

- being. Id. “ Domestic violence, want of self [

- ] co ntrol, and propensity for violence may be considered as evidence o f e ndangerment. ” In re J.I.T.P. , 99 S.W.3d 841, 845 (Tex. App.

— Houston [1 4 th Dist.] 2003, no pet. ). We
may consider conduct that occu rred outside the child ’ s presence in our review. Walker v. Tex. Dep ’

t of Family & Protective Servs. , 312 S.W.3d 608, 617 (T ex. App.

— Houston [ 1st Dist.] 2009, pet. denied).
C. M OTHER ’ S A RGUMENT T HAT W E S HOULD N OT C ONSIDER C ER TAIN OF THE E NDANGER MENT E VI DE NCE B ECAUSE I T I S I NADMISSIBLE H EARSAY Before we detail the endangerment evidence , we must first address a rguments

ma de b y Mo t her that certa in of the endangerme nt evidence constit utes inadmissible
hears ay. Mother conten ds that M r s. Clark ’ s tes t imony re g arding Mothe r ’ s slapping Matthew, M other ’ s making Mat thew spend the night on the balcon y in his underwea r, Mother ’ s thr owing a chair at Samantha, and Mother ’ s making the Chil dren spend long13

periods of time at home alone is inadmi ssible hearsay. Mother al s o contends that
Father ’ s testimony that Mother slapped Matth ew across the face is inadmissible hearsay

. The Clarks counter t hat Mother ’ s hearsay argument s are not preserved for

o ur r e view

. 1. The Law R e garding Preservation To preserve a comp lai nt for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if not apparent from the request’s, objection’s, or motion’s context.
Tex . R. App. P. 33.1(a

)( 1)(A); s ee als o Tex. R. Evi d . 103(a)(1). If a party fails to do this, error is not preserved. Bushell v. Dea n , 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
T he ob jecting party must also get a ruling

— either express or implied

— from the trial

court. Te x. R. Ap p. P. 33.1(a)(2)(A), (b); see Lenz v. Len z , 79 S.W.3d 10, 13 (Tex.
2002 )

. If the trial court refuses to rule, the party preserves error by objecting to th at

re fusal. Tex. R. App. P. 33.1(a)(2)(B). If the trial court does not rule and the party
d oes not object to the refusal to rule, error i s not preserved. Id

. Furthermo re, any error in admitting evidence is deemed harmless and is waived if the o bjecting part y later permits the same or similar evidence to be introduced without objection. Bay
Area Healt

hcare Grp., Ltd. v. McShan e , 239 S.W.3 d 231, 23 5

– 3 6 (Tex. 2007); Volks wagen of Am., Inc. v. Ramire z

, 159 S.W.3d 897, 907 (Tex. 2004)

.14

2
. Mother Did Not Pr eserv e Her Hearsay Complaint s Reg arding

Mrs. Clark ’ s Testimony Mother argues that M r s. Clark ’ s te st imony re garding Mothe r ’ s slapping
Matthe w, M other ’ s making Mat thew spend the night on the balcon y in his underwear,
Mother ’ s thr owing a chair at Samantha, and Mother ’ s making the Chil dren spend long periods of time at home alone is inadmissible hearsay. Mother points to the f ollowing

e xchange : Q. [By the Clarks ’ counsel] Did [Samantha] make any outc ries of abuse to you that happened between the time CPS got out of the case in 2011 and when you and your husband got the children in 2017?
A. [S amantha] m ade outcries of neglect a nd abuse. Q. What kind of neglect?
A. Long periods of time home alone, according to her, maybe a
we ek. Q. Was it

-- di d she sa y whe ther or no t it was dark outside?
A. It was overnight. It was several nights. Q. And this was after CPS got out of the c ase?
A. Correct. Q. And did [Matthew] make any s tatements as to abuse or neglect that he personally endured between 2011 and 2017?
A. Yes. Q. And what did he say? [Mother ’ s counsel]: Object to hearsay.15 [ Trial Cour t

]: If it ’ s an outcry, it ’ s n ot hea rsay. Rephrase. [The Clark s ’ c ounsel]: Do you want me to reph rase? [T rial Court]: Not tha t what you said, but

-- [ The Clarks ’ counsel]: I was pretty

-- Q. [By Clarks ’ counsel

] Did [Matthew] make an y outcries of abuse betwee n

-- that occurred be twe en 20 1 1 when CPS closed their second case and when you got the chil dren?
A. [Matth ew] said that he was made to stay on th e balcony overnight in his underwear for receiving a bad grade.

. . . Q. Did eit her of the children make allegations of physic al abu se, o utcries of phy sical abuse?
A. [Samantha] did. Q. And what did she say?
A. She sa id that a cha ir was thrown at her. Q. And who threw the chair.
A. [Mother]. Q. Did the children make any ou tc ries of physical abuse or neglect for the periods that t hey were in foster care, the 2011 case?
A. About? Q. O utcries of any abuse, as to why they came into care in 2011.
A. [ Matthew] did not really discuss i t. [Samantha] told me how [Matthew] rec eived the bruises o n his face.16 Q. Which are the

-- would tha t be the same bruises that [Father] testified

-- A. Yes. Q.

-- that the CPS c ase was about?
A. Yes. Q. And what was [S amantha ’ s ] outcry as to ho w [Matthew] received the bruises on his fa ce?
A. T hat he got in trouble for bad behavior at school and that [Mother] slapped him across the face. Q. That she

-- A. Slapped him acr oss the face. Q. Were there any out cries as to whether or not the slap across the face left marks ?
A. We saw the marks. Q. Oh, because the children wer e placed with you?
A. Corre ct. Mother c ontends that the trial court ’ s stat ement of “ [i]f it ’ s an outcry, it ’ s not hearsay [,] [r

] ephr ase , ” to the so le objection lodged in the above excerpt somehow
preserve d Mother ’ s h earsay argument on appeal as to the entire excerpt

. We disagree.
Mother ’ s objection was lodged t o the question, “ And what did [Matthew] say? ” Rather than ruling on that objection, the trial court asked the Clarks ’ counsel to reph rase the quest ion. The Clar ks ’ counsel then reph rased the questio n and asked about specific insta nces of abuse, and Mother did not object to any of the questio ns17

pertaining to those specific instances

. Mrs. Clark thus testif ied

— without objec tion

—

re garding Mothe r ’ s sla pping Matt hew, M other ’ s making Mat thew spend the night on
the balcon y in his underwe ar, Mother ’ s thr owing a chair at Samantha, and Mother ’ s making the Chil dren sp end long periods home alone

. Because Mother did not object

to this testim ony, Mother ’ s hearsa y complain t is not preserved

. See Tex . R. App. P. 33.1(a)( 1)(A) ; Bushell

, 803 S.W.2 d at 712 . Accordingly, we may consider this evidence
in our review. See Tex. R. Evid. 8 02 ( “ Inadmissible hearsay admitted without objectio n may not be denied probative va lue merely because it is hea r say. ” ).
3
. Mother Did Not Preserve Her Hearsay Complai nt Regardi ng

Father ’ s Testimony
Mother al so argues that Father ’ s testimony that Mother slapped Matth ew across the face was inadmissible he arsay and should not be conside red in our review

. Mother points to the following exchange duri ng the Clark s ’ direct examination of
Father : Q. And what reason were your c hildren brought into foster care in 2011?
A. The same ones, ph ysical abuse and child negl ect
. Q. D o you have any specifics on the physical abuse?
A. The main physical abuse w as done to [Matth e w] where [Mother] had slapped hi m acr oss the face and left a ha ndprint on on e side of his face and caused damage to his ey e.

[Mother ’ s counsel]: I ’ m go nna object to hearsa y.

. . . .18 [T rial Court]: I ’ m gonna overrule that objection j ust for p urposes of the record.
Even if we a ssum ed that Mother ’ s objection

— which occurred after Father gave his answer

— was timely , M other has waived any complaint regarding F a ther ’ s testim ony becaus e, as mentioned above, Mrs. Clark testifi ed

— without obje ction

— that Samantha had told her that Mother had slapped Matthew acro ss the fac e af ter he got in trouble at schoo l. Mrs. Clark then described

— again without objection

— how
Mother ’ s sl ap had l eft “ marks ” and “ bruises ” on Matthew ’ s f ace. B ecause evidence relating to the slap wa s later admitted wi thout objecti on, Mothe r has waived her hearsay complaint regar di ng Father ’ s testimony relating to the slap. See Bay Area
Healthcar e Grp. , 239 S.W.3d at 23 5

– 3 6 ; Volks wagen of Am. , 159 S.W.3d at 907

. Accordingly, we may consider this evidence in our review. See Tex. R. Evid. 802

. D. E NDANGERMENT A NALYSIS
Becau se th e evidence pertaining to Subsec tions (D) and (E) is interrelated, we conduct a consolid ated revie w. In re S. H. , No. 02

- 17

- 00188

- CV, 2017 WL 4542859, at *10 (Tex. App.

— Fort Worth Oc t. 12, 2017, no pet.) (mem. op .); In re T.N. S. , 230 S.W.3d 434, 439 (Te x. A pp.

— San Antonio 2007, no pet.). Here, t he record contains evidence that the Children w ere twice removed from
Mother ’ s care. The record reflects t hat the Children were first removed in April 2008
and not returned to Mother until March 2009. While Mother could not recall the
2008 removal , Father testified that the Childr en were removed beca use Mother had19

left the Children alone in their apartment by themselves or had left them with friends

or neighbors who , unable to reach Mother, left the children unatten ded. M othe r admitted that she had left the Children alo ne on one occasion when she had to study for a college exam although she could not recall whether it was that incident that led
to the 2008 removal.
The record reflects that the C hildren w ere removed from Mother ’ s care again in April 2011 and not returned to Mother until February 201 2. While Mother could

not rem em ber why the Children were remov ed i n 2011 and guessed that it was due to

a “ housing situation , ” Father testified that the Chil dren were re moved b ecause

“ Mother had slapped [Matthew] across the face and left a handprint on on e side of his
face and ca used damage to his eye. ” Mrs. Clark, who became a foster parent to the
Chi ldren fol lowing the 2011 removal, testified that she had se en “ marks ” and

“ bruises ” on Matthew ’ s face and that Samantha had told her that Mother had slapped
Matthew a cross the face after he had gotte n in trouble at schoo l. Mother testified that
she could not rem ember whether she had slapped Matthew and could not rem ember whether she had ever physically abused the Children.
The record also contained eviden ce that th e Chil dren had made outcries of abuse and neglect to Mrs. Clark regarding inciden ts that had occurred sometime
between whe n the Depart ment returned the Children to Mother following the 2011
removal and when the Children began living with the Clar ks again i n 201 7

. The
evidence reflects tha t Samantha told Mrs. Clark that she had been left for “ [l] ong20

periods of time home alone [,] . . . maybe a week ” or at least “ se veral nights. ” The
evid ence further reflects that Samantha told Mrs. Clark that Moth er had thr own a chair at her

. 7 The record al so reflects that Matthew told Mrs. Clark that Mothe r had
made him “ sta y on the balcony overnight in his underwear for receiving a bad grade ”

a lthough Mother denied that that incident h ad occu rred. Finally, th e record r eflects that Mother had a compromised mental state.
Mot her test

ified that she is bi p olar and that she ha s “ rec all and memory issues ” as a side effect that i mpact “ all domains o f life. ” At the termination hearing, Mother could
not recall seemi ngl

y impor ta nt fa cts

— such as whether the Children had be en removed in 2008, how many times the Children had been removed, whether she had
sl apped Matthew a cross the face, whether ther e had ever be en allegations of physical abuse made against her, and wheth er she had e ver physically abused the Children.
Mother also stated that at times she could not remember how to get to her college
classes that she had been attending on a daily basis , and she described an incident
where she was found sle e p ing in a faculty mem ber ’ s of fice and could not recall how
she had arrived there. The record also reflect s that Mother had multiple stays in a psychiatric treatmen t fa cility in the two years p rior to the termination hearing . She
testified that she had be en in a psychiatr ic treatme n t fac ility in September 2019, although she stated that she did not know how long she was in the facility or why she

7 Mot her d enied ever throwing “ a table or a lamp ” at Samantha.21

was t here. Mother ’ s boyf riend testified that he had taken her to the facility in September 2 019 because “ she was talking a lit tl e bit off

. . . a bit of nonsense ” and
that “ she wasn ’ t her self. ” He also stated that she had been in the facility for over two weeks pursuant to a court order. Mother ’ s boyf riend further testified that Mother had been in a psy chiat ric trea tment facility for two w ee ks during the summer of 201 8.
Mother co nten ds that this evidence, at best, amounts to “ isolated event[s], not
a course of conduct. ” We disagree. The record reflects evidence of a buse directed against the Children by Mo ther bo th before and after the 20 11 removal ( two of which
occurred after something negative happened with respect to Matthew ’ s schooling) , and it further reflects a pattern of disregard for the Children ’ s physical an d em o tional
well

- being both before and after th e 2008 and 2011 rem ovals

. Each of these wa s not

a one

- off incident. We further reject Mothe r ’ s argument that the outcry te stimony
should be doubted because o f the cor dial 8 relations between Mother and the Cl arks
and becau se the Clar ks did not report the alleged a buse to authori ti es; such an
argument goes to the witnesses ’ credibility and demea no r, of wh ich the fa ct

- finder is the sole j udge. See J.O.A. , 283 S.W.3d at 346. We also reject Mother ’ s argument tha t the endanger ment evidence pertained to events in the “ distant past. ” “ A parent ’ s p ast

8 As gleaned from the record, the relationsh ip between Mother and the Clarks
wa s largely cordial and friendly

. Mrs. Cl ark wo uld often offer words of encouragement to Mother regarding the Chi ldren, Mo ther ’ s s chooling, and M other ’ s finances, and on s e veral occasions , Mrs. Clark invi ted Mot her to participate in the Clarks ’ lives and th e Children ’ s lives

.22

end angering conduct may suppor t an inference that past conduct may recur and further jeopardize the child ’ s pres ent or future phys ical or emotiona l well

- being. ” See
In re M. P.B. , No. 01

- 19

- 00973

- CV, 2020 WL 352544 7, at *8 (Tex. App.

— Hous to n [ 1st Dist.] June 30, 2020, pet. denied) ( mem . op.). Nothing in the record i ndicate s that
Mother ’ s past w

ill remain there; to the contrary, the record reflects evidence of

en dangerment at several p oints along Mother ’ s and t he Ch ildren ’ s journey

— in 2008 , in 2011, and in the year s between 2 011 and 201 7. Viewing al l the evidence in the light most favorable to the trial co urt ’ s jud gment and recognizing that the fac t

- finder is the sole arbiter of the witnesses ’
credib ility and demean or, we hold that there i s some evidence of an endangering
environment on which a rea sonable fact

- finder could have formed a firm b elief or

c on viction that Mother had k nowingly placed or ha d knowingly allow ed the Children
to remain in conditions or surround ings that had endangered t heir emotional or physical well

- being and that there is some evidence of endangering con duct on which
a reasonable fact

- finder could have formed a firm belief o r conviction that Mothe r had engaged in cond uct that had endanger ed th e Children ’ s physical or e motional
well

- being. See Tex. Fam. Code Ann. § 161.001(b)(1) ( D), (E)

. Giving due deference to the fact

- finder ’ s endangering

- environment and endangering

- condu ct findings, without su pplanting the fa ct

- finder ’ s judgment with

our o wn, and after reviewing th e enti re record, we hold that a fact

- finder co ul d reasonably form a firm conviction or belief that Mother had k nowingly placed or had23

knowingly allowed the Chil dr en to remain in condi tions or surroundings that had endangered their emotional or physical w el l

- being and that Mother had engaged in
conduct that had endangered the Chi ldren ’ s physical or emotional well

- being. See Id. § 161.001(b)(1)(

D), ( E)

. We overrule M other ’ s first issue.

I II. BEST INTEREST
In her second issue, M other argues that the ev id e nce was legally and factuall y in sufficient to support the trial court ’ s best

- interest finding

.

A. S TANDARD OF R EVIEW AND B EST - I NTEREST F ACTORS We review Mother ’ s ch allenge to the sufficie ncy of the trial co urt ’ s best

- interest finding under the revie w standards stat ed regarding the conduct grounds. In determining whether to support a best

- interest finding, we review the e nt i re record.
In re E.C .R. , 402 S.W.3d 239, 2 50 (Tex. 2013). Although we generally pre sum e that keeping a child w

ith a parent is in the child ’ s b est interest, In re R.R. , 209 S.W.3d 112, 116 (Tex. 2006), the best

- i nterest analysis is child

- centered, focusi n g on the child ’ s well

- being, safety, and de velopment, In re A.C. , 560 S.W.3d 624, 631 (T ex. 2018). Evidence probative of a chil d ’ s best int eres t may be the same evidence that is probative of a Su bsection (b)(1) g round. E.C.R. , 402 S.W.3d at 249; C.H. , 8 9 S.W.3d

at 28 ; see Te x. Fam. Code Ann. § 16 1.001(b)(1), (2). We also consider the ev ide nce in light of nonexclusive factors tha t the fact

- f inde r may apply in determining the child ’ s best interest:24

(A) th e child ’ s desires; (B ) the child ’ s emotional and p h ysical needs, now and in the f u tu r e ; (C) th e em otional and phys ical danger t o the chil d now and in the future; (D) the pa rental a bilities o f th e in divid ual s seeking cu stody; (E) the progra ms avail able to assist t hese ind ivid u als to promote the chi l d ’ s b e st interest; (F) the plans fo r t h e child b y these ind ivid uals ; (G) the stab il ity of th e ho me or p ropose d placemen t; ( H) the p ar e nt ’ s acts or omissio ns ind icating th at th e exist in g pare nt

– chi ld re lationship is no t a proper one; and (I ) a n y e xcuse f

or t h e parent ’ s acts or om issi ons. Hol ley v. Ad a ms , 544 S. W.2d 367, 371

– 72 (Tex. 19 76) (ci ta tions omitted) ; see E .C.R. , 402 S.W.3 d a t 249 ( stati ng t hat in revi ewing a best

- int erest fi nding, “ we co nsider,

a mong other e v

iden c e, the Holley fac t ors ” (footnote omi t ted) ) ; E. N. C

. , 3 84 S. W.3d at
807

. These fa c to rs are n ot exhaustive, and some l ist ed f ac t ors may not appl y to some

cases . C.H. , 8 9 S.W .3d a t 27 . Furt he rmor e, undis puted e vidence o f just one f actor may be sufficie nt to support a finding th a t t erminat io n i s in the child ’ s best int erest
. I d . On th e oth er han d, the presence of scan t evi denc e r elevant to each fa ctor wil l not

su pport s uch a find ing. Id

.25 B. B EST - I NTEREST A NALYSIS Wi th regard to the Children ’ s desires, the record reflects tha t they have bonde d
to the C larks , ar e happy living with the Clarks , and desire to be adopted by the Clark s. The t ria l cour t was entit led t o fin d tha t this factor we igh ed in favor o f terminatin g M other ’ s parent al rights to the C hildren

. 9 With regard to the C hildren ’ s emotional an d physical n eeds now an d in the
future and the emotional a nd physical danger to t hem now a nd in t he future , the
record r efl e cts that the Children are endangered in Mother ’ s care (as detailed in the endangerment ev

idence above). In co ntrast to the evidence tha t the Children are endanger ed while in Moth er ’ s care, the record reflec ts t hat they are well cared for in

t he Cl ar ks ’ care . Mother herself acknowledge d that the Children are happy , safe, and
stable with the C larks. The t rial court was entit led t o find that th ese fact or s we igh ed
in f avor o f terminati n g M other ’ s parent al rights t o the Children

. With regard to th e p la n f

or the Children by the indiv iduals s eeking custody and
the sta bility of t he home or proposed p lacement , the re cord reflects that Moth er was unemployed at the time of the termination hearing and had last worked ap p roxi mately eight mon ths before the hea ri ng. Mother f urther testified that she had “ zero ” dollars

9 In her brief, Mother acknowledges that this factor weigh s “ slightly in f avor of termination. ”26

in her b ank account and that her boyfriend paid the majority of he r bills. 10 Mother

sta ted that sh e was living in a one

- bedroom apartme nt , that her plan if t he children
were returned to her was t o h ave the Child ren sleep in the bedroom while she slept

o n the co uch , and that the Children would need to change schools

. The record
further reflect s that the Children led unstable lives while in Mother ’s care : twic e the
Children were removed by the Dep a r t ment for lengthy periods , and in 2017 , M other
volu ntarily p laced the Children with the Clarks. The record also reflects that Mother
had multiple stays in a p sychiatric treatment f acility in the two years prior to t he termination hearing , and by her own ad mission, she suffers from “ re call and me mory issues ” that impact “ all dom ains of life. ” In contr ast, the record reflects that the
Clarks ha d been feeding the Children, c lothi ng them, providing for their educ ation, and providing for their medical and den ta l care since the Children ’ s pl ace ment wit h
them. Father testified that the Children were “ happy [ , ] safe [ , ] and secure ” at the
Clarks , and Mother testified that the Children wer e happy and doing well in school
and t hat the Clarks ’ residence is safe and s ec ure. The record further reflects that the Clarks desire to adopt the Chi ldren and that the Children desire to by adopted by the
C larks

. The t rial court was entit led t o fin d that th ese fact or s we igh ed in favor o f

t erminatin g M oth er ’ s parent al rights to t h e Children

.

10 The record did contain evidence that Mother had purchased Matthew clothes
on on e occasion and had purchased the Childre n ’ s school suppl ies on another occasion while they were living with the Clark s . M rs. Clark further testified that Mother provided the Ch ildren with cell phones and paid the bill

.27

With reg ard to Mother ’ s acts or om issions indicating that the exis ting parent

– child relatio n sh ip is not a p rope r o ne and any excuse for Mother ’ s acts o r omissio ns , the record refl ects that the Children were removed i n 2008 following an inci de nt where the Children were left unattended. The Children were later removed in 2011 following an incident where M other slapped Matthew across the face. Mother d id not offer any excuse regar ding those removals but instead state d that she d id not

rem embe r the 2008 removal and d id not recall whether she had ever slapped Matthew
in the face. The t rial court was entit le d t o find that this factor we igh ed in favor o f
terminatin g M oth e r ’ s parent al rights to the Children

.

C
. B EST - I NTE R ES T C ONCLUS ION Viewing th e eviden ce i n the light m ost favorable to the t r ial court ’ s best

inte r est findin g , we hol d that a reas on abl e f act

- finder could have r easonabl y formed a
firm conviction o r belief that te rmi natio n of the parent

– c hild re lat

ionsh ip be tween Mother a nd the Chi ld ren wa s in the C hildren ’ s best inte rest , and we theref ore ho l d
th at t he evidence is legally s ufficient to supp ort th e tri al court ’ s best

- int erest findi ng . See Tex. Fam. Code Ann. § 16 1.001(b) (2) ; J.P.B. , 180 S.W.3 d at 573 . Based on our exacting review of the entire record and gi ving due defere nce to t he fact

- f inde r ’ s find ings, we likew

ise con cl ude that th e evidence is fac tually sufficient to support th e trial court ’ s bes t

- interest finding

. See C.H. , 89 S.W.3d at 1 8

– 19

. Accordin g ly , w e overrule Mother ’ s s econd iss ue.28

I V. M OTH ER ’ S ATTACK ON THE TRIAL COURT ’ S JULY 26, 2019 TEM PORARY ORDER REQUIRING HER TO PAY CHILD S UPPORT
In her third issue, Mother c omplains about the trial court ’ s July 26, 2019
tempora ry order in which she wa s required to pay monthl y child support of $657.25

. Mo ther asks us to remand the case to the trial court so that it can recalculate the amount of supp ort to be paid under that temporary order. Temporary orders that are
issued in a suit aff

ecting the parent

– child relationship ar e not appealable. Interest of
L.A. , No. 02

- 16

- 00403

- CV , 2017 WL 1289362, at *5 (Tex. App.

— Fort Worth Apr. 6, 2017, no pet.) (mem. op.); In re J.W. L. , 291 S.W.3d 79, 83 ( T ex. App.

— Fort Worth 2009, orig. proce eding). Mother ’ s co mplaint is a n attempt to app e a l a temporary order in a suit affecting th e parent

– ch ild relationship , a complaint that we do not have j urisdiction to consi de r. See Interest of N .V.R. , 580 S.W.3d 220 , 225 (Tex. App.

— Tyler 2019, pet . denied) (mem. op.) ( “ [T]his complain t rela tes to the F ebr uary 2017 temporary child support order. Runnels did not challenge this order in a mandamus proceedi ng [,] and it cannot now be chall enged on appeal from th e trial c o urt ’ s subsequent assessment of arrearages. ” ) ; L.A. , 2017 WL 1289362, at *5 ( “ Mother ’ s

c o mp laint is an attempt to appeal the temporary orders issued by the trial court on October 15, 2015, a c omplaint whi ch we do not have jurisdiction to consider. ” ). We

o v errule Mother ’ s third issue.29

V. MOTHER ’ S COM P LAINT REGARDING ALLEGED

CHILD SUPPORT A RREA RS
In her fourth issue , Mother argues that the t rial court erred by ass igning child
support arre ars to the Clar ks. Mother c ontends that a t rial court has “ very limited ”
discretion with respect to child suppor t arre ars, th at a trial court is to “ ac [t ] as a mere
scrivener in mecha nically tallying u p the amou nt of arrearage , ” an d that the t rial court allegedly did not do so here. See Chenault v. Banks , 296 S.W.3d 18 6, 189 (Tex. App.

— Houst on [1 4th Dist.] 2009, no pet.)

. As pointed out by the Clarks i n their bri ef,
how ever, the trial court did not assign them child s uppo rt arrears. Inst ead, t he record

re flects that the trial co urt found that $4,1 38.68 in child support was on hold with the Texas Attorney General ’ s Office stemming from child s upport pay me nts made by
Father. The tria l court found that this amount had accumulated while t he Clarks had primary possession of the Children

. 11 T he trial court assign ed the $4,138.68 that was
on hold to the Clarks a nd ordere d the Texas Attorney General ’ s Office t o rel ea se it to
th em . We thus reject Mother ’ s co ntention that the trial court somehow erred b y assigning the Clarks child support arrea rs. 12 To the extent that Mother is attempting
to argue something else with respec t to the $4,138.68, suc h an argument is

11 A payment

- record printout from the Texa s Attorn e y General ’ s Office was admitted int o evid ence and reflected that Fath er made fifty

- two p ayme nts of $197.08 ( totaling $10,248.16) between July 31, 2017 , and Ju ly 1 5, 2019.

12 Arrears refer to amounts that are past due; here, there are no finding s or evidence that the amounts assigned to the Clark s were p ast due. We thus fin d that the auth orities cited by Mother perta ining to arrears are inapposite.30

i na de quately briefed. See Tex. R. App. P. 38. 1( i) ; Sanders v. Future Com, Ltd. , No. 02

- 15

- 00077

- CV , 2017 WL 21807 06, at *7 (Tex. App.

— Fort Wort h May 18, 2017, no pet.) (mem. op.) ( “ This co urt shall not resort to spe culation or surmise to make [a n appella nt ’ s ] argument for him. ” ). We overrule Mother ’ s fourth issue.

VI. SEGREGA

TION OF ATTORNEY ’ S FEES
In her fifth is sue, M oth er argues that the tr ial court erred by awarding
attorney ’ s fees t o the Clarks despite the Cl ar ks ’ failure to segregate attorney ’ s f ee s between the relief sought against Mother an d Father and between the various
conduct

- ground theorie s sought agai nst Mo the r. But Mother did not make th ese
argu ment s in the trial court. Be cause Mother asserts her s egrega tio n c omplaint s for
the first tim e on appeal, she has waived th em . See Tex . R. A pp. P. 33.1 ; Hruska v. First State Bank of D eanville , 747 S.W.2d 783, 785 (Tex . 19 8 8) (holdi ng that party o pp osing award of attorney ’ s fees must object to fail ure to seg regate fe es in order to preser ve the is su e for appellate review); Fritts v. McDow ell , N o. 02

- 16

- 00373

- CV, 2017 WL 3821889, at *8 (Tex . App.

— Fort Worth Aug. 3 1, 2017 , pet. denied ) (mem. op.) (sam e) ; In re L.M.M. , No. 03

- 04

- 00452

- CV, 2005 WL 209475 8, at *15 (Tex. App

. — Austin Aug. 31, 200 5, no pet .) (mem. op.) (same). We overrule Mother ’ s fift h issue.
VII. CONCLUSION
H a ving overruled Mot he r ’ s five issues, we a ffirm t h e tri al court ’ s te r mination

o rd er.31 /s/ L ee Gabriel
L ee Gabriel Justice
Delive re d: October 15, 2020