TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00190-CV

R. J. and A. D. M., Appellants 

v. 

Texas Department of Family and Protective Services, Appellee 

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-FM-20-005379, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

 R.J. (Mother) and A.D.M. (Father) appeal from the trial court’s final decree

terminating their parental rights to their child H.M., who was born in May 2019, and their twins 

J.F.M. and M.G.M., who were born in September 2020.

1 In their appellate issues, the parents 

challenge the trial court’s predicate-ground findings. See Tex. Fam. Code § 161.001(b)(1)(N)

(constructively abandoning), (O) (failing to comply with court-ordered services). For the 

following reasons, we affirm the trial court’s final decree of termination. 

BACKGROUND 

 In December 2019, Mother and seven-month-old Child came to Texas from 

South Carolina. A short time later, Father also came to Texas, and Mother became pregnant with 

1 We refer to the parents and their children by their initials or as Mother, Father, Child, 

and the Twins. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. 
2

the Twins. Mother did not receive prenatal care during her pregnancy with the Twins,

2 and on

September 27, 2020, she gave birth prematurely to the Twins, who were admitted to the NICU.

After investigating a report that Mother and one of the Twins had tested positive 

for amphetamine at the hospital, the Department of Family and Protective Services filed an 

original petition concerning the Twins. The trial court appointed the Department as the 

temporary managing conservator of the Twins, and the Department placed the Twins with a 

foster mother before they were discharged from the hospital. During its investigation, the 

Department became aware of Child but was unable to locate her. Mother and Father initially

provided inconsistent information, including Mother representing that “they were just passing 

through” and that they “actually were residing in South Carolina” and Father representing that 

Child was in South Carolina.

3 The Department amended its petition to include Child and was 

granted a writ of attachment as to Child. Around that time, Mother and Father turned Child over 

to the Department, and the Department placed Child in a fictive kinship home.

During the Department’s case, the trial court ordered Mother and Father to 

participate in services, including random drug testing, a psychological evaluation, individual 

therapy, and a nurturing or protective parenting program. They also were ordered to obtain and 

2 When asked at trial why she did not get prenatal care, Mother testified:

One, it was my sixth pregnancy. Pretty much accustom and aware of my body’s 

changes and stuff like that. I knew if there was any concern. I—I know, more or 

less, my body. And if there was a concern, I would know to get medical help. 

And I just—I had a genuine fear of having a child here in Texas and CPS getting 

involved. It was a fear.

Mother also testified that she knew she was pregnant but not that she was having twins.

3 The Department investigator testified that Father initially “denied knowledge of

another child” but “did eventually admit that there was another child and claimed that child was 

in South Carolina with family.”
3

maintain employment or income to meet their own and their children’s needs, to obtain and 

maintain safe and appropriate housing, to maintain communications with the assigned 

caseworker, and to notify the Department within 24 hours of any change in their contact 

information. Alternatively to obtaining and maintaining employment or income, the parents

could provide proof that they were able to meet basic needs through public assistance. The trial 

court also ordered supervised visits with the children.

In an agreed order, the trial court extended the dismissal date, and a bench trial

occurred virtually March 22 to 24, 2022. The witnesses included Mother; Father, who was 

incarcerated; a Department caseworker and investigator; a police officer, who testified about his 

arrests of Mother and Father during the case; the children’s paternal aunt (Aunt), who lived in 

South Carolina and was caring for the children; and the Twins’ foster mother, who had cared for 

the Twins from their discharge from the hospital until they were placed with Aunt. The 

Department sought to terminate the parents’ rights so that Aunt could adopt them. The evidence

showed that the children were placed with Aunt about one month before trial, that they were 

doing well in her care, and that she was willing to maintain contact between the parents and 

children if parental rights were terminated and she adopted the children.

The Department investigator testified about her investigation and the children’s

removal from the parents. She testified about the parents’ lack of cooperation with locating

Child and the Department’s concerns based on drug test results, Mother’s drug use history,

Department involvement with her older children, and Father’s criminal history. Besides Child 

and the Twins, Mother has two teenage daughters who live with their maternal grandmother and 
4

a son who lives with his maternal grandfather.

4 Mother’s parental rights to her three other 

children have not been terminated, but she has not cared for them in some time. In 2015, Mother

attempted to remove her daughters from her mother’s care, but they stayed with their 

grandmother after the Department became involved.

5 In 2018, the Department brought a case 

concerning Mother’s son because Mother allegedly was using illegal drugs during her pregnancy 

with her son and after his birth. That case concluded with her son being placed with 

his grandfather.

The Department caseworker testified about the services that the parents were 

court-ordered to complete and the services that they did not complete, including not doing

required drug testing. Neither parent complied with required hair follicle tests. Mother 

completed 4 of 41 required drugs tests, and Father completed 9 of 40 required drug tests. The 

caseworker testified that one or both parents only participated in 33 of 74 possible visits with 

the children.

6

The officer testified about his arrest of Mother on March 8, 2022 for possession of 

a controlled substance, methamphetamine, and fraudulent possession of identifying information. 

Mother “was in a hotel room that was being rented fraudulently” and that contained 

methamphetamine and multiple credit cards.7 The officer also testified that in January 2021, he 

4 Mother also had a son who died when he was about five months old.

5 Mother testified that her daughters began living with her mother because she “was 

going through a really hard time after [her] son passed away.”

6 After the children were placed in Aunt’s care, the parents generally had contact with 

the children by telephone and video chat several times a week.

7 Mother testified that “somebody else rented” the hotel room and that she “was just 

there to take a shower” and denied having any controlled substances on her.
5

arrested Father for driving a stolen vehicle and possessing a narcotic. The officer searched and 

observed methamphetamine on Father. At trial, Father invoked his Fifth Amendment privilege 

against self-incrimination as to each question that he was asked, except that he testified that he 

was the children’s father and that he had one other child.8 The Department’s questions to Father 

included how many times he was arrested after Child was born, whether he and Mother had used 

methamphetamine around Child, whether he was able to provide for the children, where he was 

living before being in jail, whether he hid Child from the Department after the Twins were 

removed, whether the children were removed “due to drug concerns,” and whether he had 

completed court-ordered services.

As to Mother’s compliance with the court-ordered services, Mother admitted that 

she was not in compliance but provided excuses including at times breaking phones and lacking

access to WiFi and transportation. Mother testified that she had been living in a hotel room for

two weeks leading up to trial, that she had lived in different hotels for about half of the case, that 

she had rented a room with Father for part of the case, that she had a vehicle for “a very brief 

moment” during the case, and that she relied on friends for rides. Besides being arrested shortly

before trial, Mother was arrested in November 2021 when methamphetamine was found in a 

vehicle in which Mother was a passenger. Mother invoked the Fifth Amendment when asked the 

last time she possessed methamphetamine and about domestic violence between her and Father.

Although she admitted to using marijuana when she was pregnant with the Twins, Mother denied 

using any other illegal drugs.

8 Father, who was incarcerated at the time of trial, did not provide further testimony

about that child.
6

In its final decree of termination, the trial court terminated parental rights, finding

that Father and Mother constructively abandoned the children, see Tex. Fam. Code 

§ 161.001(b)(1)(N); that they failed to comply with the court-ordered services, see id.

§ 161.001(b)(1)(O); and that it was in the children’s best interest for parental rights to be 

terminated, see id. § 161.001(b)(2). The parents’ appeals followed.

ANALYSIS

Standard of Review

To terminate parental rights under section 161.001, the Department has the 

burden to prove one of the predicate grounds in subsection (b)(1) and that termination is in the 

best interest of the child. See id. § 161.001(b)(1), (2); In re A.V., 113 S.W.3d 355, 362 (Tex. 

2003). The applicable standard of proof is clear and convincing evidence. Tex. Fam. Code 

§ 161.206(a); see In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002) (explaining that “[d]ue process 

requires the application of the clear and convincing evidence standard of proof in parental 

termination cases”). The clear and convincing evidence standard is “that measure or degree of 

proof which 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.” In re C.H., 89 S.W.3d 17, 23 (Tex. 2002) (quoting 

State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)); see Tex. Fam. Code § 101.007 (defining 

“clear and convincing evidence”).

“In conducting a legal-sufficiency review, the reviewing court cannot ignore 

undisputed evidence contrary to the finding, but must otherwise assume the factfinder resolved 

disputed facts in favor of the finding.” In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018). Legal 

sufficiency review of the evidence to support a termination finding requires a court to look at all 
7

the evidence in the light most favorable to the finding and consider undisputed contrary evidence

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

its finding was true. Id.

In reviewing the factual sufficiency of the evidence under the clear-andconvincing standard, we consider and weigh disputed evidence contrary to the finding against all 

the evidence favoring the finding. Id. at 631; see In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). 

“Evidence is factually insufficient if, in light of the entire record, the disputed evidence a 

reasonable factfinder could not have credited in favor of a finding is so significant that the 

factfinder could not have formed a firm belief or conviction that the finding was true.” In re

A.C., 560 S.W.3d at 631; see In re J.O.A., 283 S.W.3d at 345. We must give due deference to 

the factfinder’s findings, and we cannot substitute our own judgment for that of the factfinder. 

In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); see In re A.B., 437 S.W.3d 498, 503 (Tex. 2014)

(noting that when reviewing termination order, appellate courts defer to “factfinder who, having 

full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the 

credibility and demeanor of witnesses”).

Court-Ordered Services

In their respective two issues, Mother and Father challenge the predicate-ground 

findings against them, but we need only review their second issues that challenge the trial court’s

findings pursuant to subsection (O). See Tex. Fam. Code § 161.001(b)(1)(O); In re A.V., 

113 S.W.3d at 362; see also In re N.G., 577 S.W.3d 230, 232–33, 237 (Tex. 2019) (explaining 

that only one predicate ground is necessary to support termination of parental rights when there 

is also best interest finding but requiring review of endangerment findings).
8

To terminate parental rights under Subsection (O), the Department must show 

that: (1) the child was removed under chapter 262 of the Texas Family Code for abuse or 

neglect, (2) the child had been in the permanent or temporary managing conservatorship of the 

Department for at least nine months, and (3) the parent “failed to comply with the provisions of a 

court order that specifically established the actions necessary for the parent to obtain the return 

of the child.” See Tex. Fam. Code § 161.001(b)(1)(O). Neither parent disputes that the children 

were in the conservatorship of the Department for more than nine months or that they did not 

comply with court-ordered services, but they challenge the sufficiency of the evidence to support 

the trial court’s finding that the children were removed for abuse or neglect.

In the context of subsection (O), the words abuse and neglect are “used broadly.”

In re E.C.R., 402 S.W.3d 239, 248 (Tex. 2013). “[B]ecause chapter 262 uses the standard of 

‘danger to the physical health or safety of the child,’ a phrase ‘centered on risk, rather than just a 

history of actual abuse or neglect,’ abuse or neglect ‘necessarily includes the risks or threats of 

the environment in which the child is placed.’” T.M. v. Texas Dep’t of Fam. & Protective Servs., 

No. 03-21-00174-CV, 2021 Tex. App. LEXIS 8226, *26 (Tex. App.—Austin Oct. 8, 2021, no 

pet.) (mem. op.) (quoting In re E.C.R., 402 S.W.3d at 247–48). Further, “[w]hether a child was 

removed for abuse or neglect is a fact-specific inquiry.” Id. (citing In re S.M.R., 434 S.W.3d 576, 

583 (Tex. 2014)). And “[a]pplying well-established rules of statutory construction, subsection 

(O) does not require that the parent who failed to comply with a court order be the same person 

whose abuse or neglect of the child warranted the child’s removal.” See In re D.R.J., 

395 S.W.3d 316, 320 (Tex. App.—Fort Worth 2013, no pet.) (citing In re S.N., 287 S.W.3d 183, 

188 (Tex. App.—Houston [14th Dist.] 2009, no pet.)).
9

Father argues that the evidence was insufficient because the Department’s 

“suspicion and concerns” at the hospital where Mother had just given birth to the Twins were 

“based only” on Mother’s “past use and positive tests,” Father’s “past criminal history,” and on

“amphetamines (which the Department did not prove was from an illicit source)” and that the 

evidence at trial was that Child was “completely safe and free of harm” at the time of removal. 

Mother similarly argues that the Department failed to introduce any competent evidence of abuse 

or neglect at the time the Department removed the children. Mother relies on the Department’s 

failure to introduce “drug test or medical documentation” showing positive drug tests; her 

testimony denying drug use; the evidence that “over-the-counter medications can lead to a 

positive result for amphetamines,” that the Twins did not exhibit withdrawal symptoms, and that 

Child “appeared healthy, dressed appropriately, interacted with her parents appropriately, and did 

‘all the things that a normal one-year-old would do’” when removed from her parents; and the 

testimony from the investigator, the caseworker, and Aunt that they had not observed the parents

appearing to be under the influence of drugs.

The trial court, however, took judicial notice of its file. In its ex parte order as to 

the Twins, the trial court found that there was “an immediate danger to the physical health or 

safety of [the Twins],” and in its ex parte order as to Child, the trial court found that there was

“an immediate danger to the physical health or safety of the Child [H.M.] or that the Child has

been victim of neglect or sexual abuse and that continuation in the home would be contrary to 

the Child’s welfare.” Similarly, in its temporary orders as to the Twins and Child, the trial court 

found that there was “a danger to the physical health and safety of the child which was caused by 

an act or failure to act of the persons entitled to possession of the child and for the child to 
10

remain in the home is contrary to the welfare of the child” and that “the urgent need for 

protection required the immediate removal of the child.”

The trial court reasonably could have relied on its findings in these orders to find 

that the children were removed for abuse or neglect under chapter 262. See A.B. v. Texas Dep’t 

of Fam. & Protective Servs., No. 03-19-00593-CV, 2020 Tex. App. LEXIS 962, at *11 (Tex. 

App.—Austin Feb. 5, 2020, pet. denied) (mem. op.) (“A trial court’s findings in its previous 

orders may be sufficient to support the third prong of subsection (O).” (citing In re E.C.R., 

402 S.W.3d at 248–49)); D.T. v. Texas Dep’t of Fam. & Protective Servs., No. 03-18-00770-CV, 

2019 Tex. App. LEXIS 2797, at *9–11 (Tex. App.—Austin April 9, 2019, no pet.) (mem. op.) 

(relying in part on findings in trial court’s temporary orders to conclude that evidence was 

sufficient to support that child was removed for abuse or neglect); In re J.S.G., 

No. 14-08-00754-CV, 2009 Tex. App. LEXIS 3224, at *19–20 (Tex. App.—Houston 

[14th Dist.] May 7, 2009, no pet.) (mem. op.) (relying in part on trial court’s temporary orders 

concluding that children faced danger to their physical health or safety and substantial risk of 

continuing danger if returned home to conclude that evidence established that children were 

removed “as a result of neglect”); In re A.A.A., 265 S.W.3d 507, 516 (Tex. App.—Houston 

[1st Dist.] 2008, pet. denied) (considering trial court’s temporary orders finding “continuing 

danger to the physical health or safety of the child if returned to the parent” as evidence that 

child was removed because of neglect).

The trial court also could have reasonably considered the removal affidavits as 

supporting the children’s removal for abuse or neglect. See In re E.C.R., 402 S.W.3d at 248–49 

(considering affidavit, “even if not evidence for all purposes,” as evidence in support of removal 

for abuse or neglect under chapter 262 of Family Code); R.P. v. Texas Dep’t of Fam.
11

& Protective Servs., No. 03-21-00326-CV, 2021 Tex. App. LEXIS 8288, at *14 (Tex. App.—

Austin Oct. 13, 2021, no pet.) (mem. op.) (“In the context of section 161.001(b)(1)(O), however,

affidavits are admissible to prove that the children were removed for abuse or neglect.” (citing

F.C. v. Texas Dep’t of Fam. & Protective Servs., No. 03-19-00625-CV, 2020 Tex. App. LEXIS 119, 

at *18–19 (Tex. App.—Austin Jan. 9, 2020, no pet.) (mem. op.))); In re J.S.G., 2009 Tex. App. 

LEXIS 3224, at *16–17 (relying in part on affidavit supporting removal to conclude that 

evidence established that children were removed “as a result of neglect”). In her affidavits

supporting removal, the investigator averred that Mother did not receive prenatal care during her 

pregnancy with the Twins, that she tested positive for marijuana and she and one of the Twins 

tested positive for amphetamine at the hospital, that she provided no explanation for the positive 

drug tests, that the parents provided inaccurate information about Child’s whereabouts and their 

living situation, and that they did not comply with the investigator’s requests that they drug test.

Further, the trial court reasonably could have drawn negative inferences from the 

parents’ invocation of the Fifth Amendment in response to questions. See Tex. R. Evid. 513(c); 

Wilz v. Flournoy, 228 S.W.3d 674, 677 (Tex. 2007) (“[T]he jury in this civil case was free to 

draw negative inferences from the Flournoys’ repeated invocations of the Fifth Amendment.”); 

In re A.G., No. 11-13-00182-CV, 2013 Tex. App. LEXIS 15424, at *10 (Tex. App.—Eastland 

Dec. 20, 2013, no pet.) (mem. op.) (noting in context of parental-rights-termination case, that 

factfinder may draw negative inferences from witness’s invocation of Fifth Amendment); White 

v. Texas Dep’t of Fam. & Protective Servs., No. 03-08-00411-CV, 2008 Tex. App. LEXIS 9508, 

at *13–14 (Tex. App.—Austin Dec. 19, 2008, no pet.) (mem. op.) (same). Father invoked the 

Fifth Amendment in response to questions asking him how many times he was arrested after 

Child was born, whether he and Mother used methamphetamine around Child, whether he
12

observed Mother using illegal drugs while she was pregnant, whether he hid Child from the 

Department when the Twins were removed, and whether the children were removed “due to drug 

concerns.” Mother invoked the Fifth Amendment when asked about domestic violence between 

her and Father and the last time she possessed methamphetamine.

Viewing the evidence under the applicable standards of review, we conclude that 

the evidence was legally and factually sufficient to support the trial court’s finding that the 

children were removed for abuse or neglect. See Tex. Fam. Code § 161.001(b)(1)(O); In re A.C., 

560 S.W.3d at 630–31. We overrule Father’s second issue and to the extent her second issue

challenges this finding, we also overrule Mother’s second issue.

Investigator’s Testimony

As part of her second issue, Mother argues that the trial court erred in overruling 

Mother’s objection to the investigator’s testimony that she had “concerns” regarding drug test 

results from Mother, one of the Twins, and Child. Mother objected to this testimony because 

“the results are going to be calling for hearsay” and “[t]he concerns are based on hearsay.” See

Tex. R. Evid. 801(d) (defining hearsay as out-of-court statement offered to prove truth of 

matter asserted).

“We review a trial court’s decision to admit or exclude evidence for an 

abuse of discretion.” A.B. v. Texas Dep’t of Fam. & Protective Servs., No. 03-17-00658-CV, 

2018 Tex. App. LEXIS 1790, at *7 (Tex. App.—Austin Mar. 9, 2018, no pet.) (mem. op.) 

(quoting In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005)). “A trial court abuses its discretion 

when it acts in an arbitrary or unreasonable manner ‘without reference to any guiding rules or 
13

principles.’” Id. (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 

(Tex. 1985)).

Because the Department sought termination under subsection (O), the trial court 

reasonably could have admitted the investigator’s testimony that the Department was concerned 

about the drug test results for the limited purpose of proving that the children were removed for 

abuse or neglect. See R.P., 2021 Tex. App. LEXIS 8288, at *14–15 (concluding that trial court 

reasonably could have admitted affidavits over hearsay objection “for the limited purpose of 

proving that the children were removed for abuse or neglect” under chapter 262). Thus, we 

cannot conclude that the trial court abused its discretion in allowing this testimony.

9

Affirmative Defense

As part of her second issue, Mother also “asserts her affirmative defense—that

she attempted to comply with the court-ordered services in good faith but was prevented from 

doing so through no fault of her own.”

A court may not order termination under subsection (O) if the parent proves by a 

preponderance of the evidence that “the parent was unable to comply with specific provisions of

the court order” and “the parent made a good faith effort to comply with the order and the failure 

to comply with the order is not attributable to any fault of the parent.” Tex. Fam. Code

§ 161.001(d); see In re Z.M.M., 577 S.W.3d 541, 542–43 (Tex. 2019) (discussing affirmative 

defense provided in section 161.001(d)); R.S.S. v. Texas Dep’t of Fam. & Protective Servs., 

9 Mother cites In re K.C.P., 142 S.W.3d 574 (Tex. App.—Texarkana 2004, no pet.), as

supporting her position that the challenged testimony was inadmissible. We find that case 

factually distinguishable. In that case, the issue concerned the admission of the actual records of 

the drug test results. Id. at 579–80. In contrast, in this case, the Department’s representative did 

not testify as to what the drug test results were, and the records of the drug test results were 

not admitted.
14

No. 03-22-00076-CV, 2022 Tex. App. LEXIS 4864, at *10–11 (Tex. App.—Austin 

July 15, 2022, no pet. h.) (mem. op.) (explaining that “[s]ection 161.001(d) is an affirmative 

defense to subsection (O) that places the burden of proof on the parent” and that “the parent must 

satisfy this burden for each specific provision of the court order that the State claims he failed 

to complete”).

Mother relies on evidence of her reasons for being unable to comply with some of

the court-ordered services. Mother testified, “the Department set up services on the opposite side 

of town, notified parents of drug tests when they knew parents had no reliable access to phone or 

internet service, and set visits at a location that did not have bus service, even though it knew the 

parents had no vehicle.” Mother relies on her testimony about how her first two attorneys and 

the first caseworker “failed her utterly”; about the difficulties that she faced with scheduling 

some of the court-ordered services; and about her lack of transportation, a reliable phone, and 

reliable internet service throughout the case.

Although some evidence showed that Mother tried to comply with some of the 

court-ordered services, the trial court reasonably could have inferred from other evidence that 

she had not made a good faith effort to comply with services, particularly required drug testing. 

The evidence showed that Mother only completed 4 of 41 required drug tests during the 

18 months that the case was pending. The caseworker testified that she offered to transport the 

parents to drug testing that she requested at visits but that they declined her offer and that they

responded to texts concerning visits but not to texts concerning drug testing. Further the 

evidence showed that Mother was arrested shortly before trial for possession of 

methamphetamine and invoked the Fifth Amendment when she was asked the last time she 

possessed methamphetamine. The caseworker testified that she restarted all referrals in
15

July 2021; offered transportation and provided bus passes to the parents; and offered a

conference room at the Department to connect to WiFi, which they declined. The caseworker

further testified that the parents did not let her know that they could not participate in 

virtual services.

Based on our review of the record, we conclude that the evidence is legally and 

factually sufficient to support that Mother did not prove by a preponderance of the evidence that 

she made a good faith effort to comply with the court-ordered services or that her failure to 

comply with the court-ordered services was “not attributable to any fault of [Mother].” See Tex. 

Fam. Code § 161.001(d); R.S.S., 2022 Tex. App. LEXIS 4864, at *10–11. We overrule the 

remainder of Mother’s second issue.

CONCLUSION

Having overruled the parents’ second issues challenging the trial court’s predicate

ground findings under subsection (O), we affirm the trial court’s final decree of termination.10

__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: August 11, 2022

10 Because we have concluded that the evidence was legally and factually sufficient to 

support termination under subsection (O) and overruled the parents’ issues as to that finding, we

do not reach the parents’ first issues challenging the trial court’s findings that they constructively 

abandoned the children. See Tex. Fam. Code § 161.001(b)(1)(N); In re N.G., 577 S.W.3d 230, 

232–33 (Tex. 2019).