In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-10-00131-CV

______________________________

IN THE INTEREST OF E.N.C., J.A.C., S.A.L., N.A.G., 

AND C.G.L., CHILDREN

 

On Appeal from the 62nd Judicial District Court

Lamar County, Texas

Trial Court No. 78207

 

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Carter

 Concurring and Dissenting Opinion by Justice Moseley
2

MEMORANDUM OPINION

As a result of a termination proceeding brought by the Texas Department of Family and 

Protective Services (Department), the parental rights of mother Edna Lopez to her five children 

E.N.C., J.A.C., S.A.L., N.A.G., and C.G.L., and Francisco Lopez to his two children S.A.L. and 

J.A.C., were terminated. Edna and Francisco argue that the evidence was insufficient to establish 

by clear and convincing evidence that the statutory grounds for termination had been met, or that 

termination was in the best interests of the children. Edna also complains that the trial court erred 

in allowing her counselor to testify in favor of the Department over assertions of counselor/patient 

privilege. We affirm the trial court‘s judgment. 

I. FACTUAL AND PROCEDURAL HISTORY

Thirty-one-year-old Edna has a seventh grade education, can barely read or write, and was 

unable to obtain a GED. She has not worked in six or seven years and has had no income since 

her disability was cut off in 1999. Since 1999, she worked only once ―because I was too slow, not 

fast enough, and I was too short to lift up the heavy stuff.‖ Edna eats because ―me and my mother 

gets food stamps.‖

1

Edna had her first child, E.N.C., at the age of seventeen. Thereafter, she met Francisco, 

married him, and gave birth to J.A.C. and S.A.L. Edna and Francisco lived together for ―eight to 

nine years‖ before he was deported to his hometown of San Miguel de Allenda, Mexico. 

Thereafter, Edna had N.A.G. with another man. 

 

1Edna‘s mother, Ruth Miller, is sixty-five years old and receives $674.00 social security income per month. 
3

In 2009, Kimberly Bullard with Child Protective Services (CPS) received a referral that 

Edna gave ―Tylenol PM to her children and [was] taking medications that did not belong to her.‖

2

 

At the time of the referral, Edna was pregnant with C.G.L., who was born prematurely on 

February 10, 2009, and weighed just over three pounds. According to the Department and CPS 

supervisor Melinda Johnson:

[W]hen [Edna] went to the hospital to take the baby home, she appeared to be under 

the influence of drugs which caused her to behave erratically. During an 

investigation it was found that [Edna] was under the influence of an unknown 

substance either from prescriptions prescribed for her mother or other unknown 

sources.

Edna began having migraine headaches four to five years ago. Dr. Donna Womack, who 

treated Edna while she was on Medicaid, prescribed a barbiturate used to treat migraine headaches 

called butalbital. Although Edna claims, ―I ain‘t never used  ̳drugs‘ drugs,‖ she admitted to 

abusing butalbital without a prescription. At some point, Edna was no longer eligible for 

Medicaid, but in January or February 2009, Edna stated she was prescribed twenty butalbital pills 

at the emergency room and ―was abusing it . . . I was taking more than one . . . [a]bout three or 

four,‖ approximately every day. When her mother received her butalbital pills, Edna would 

―sneak hers, stole hers without her knowing.‖ 

CPS referred the case to Family Based Safety Services (FBSS). Bullard testified, ―The 

initial concerns was, of course, substance abuse. We were also concerned about several people 

coming in and out of the home that she might not have known. . . . We had concerns about her 

 

2Allegations were also made against Edna in 2005, 2006, 2007, and 2008; those were dismissed. 
4

financial stability and her—her use of prescription medications that did not belong to her.‖ Edna 

was also on community supervision for possession of marihuana at the time. According to 

Bullard, Edna reported that three different men could have been C.G.L.‘s father, and Edna‘s ―little

[knowledge] about men that have lived in the home with her, and us not being able to locate them 

[wa]s a great concern for these children.‖ 

Edna agreed to attend weekly counseling, undergo a psychological evaluation, attend 

parenting classes, and have her home monitored by case worker Mary Beth Gimbel. She was also 

to complete a drug assessment through the East Texas Council on Alcohol and Drug Abuse 

(ETCADA). However, Edna did not begin her FBSS services, and on April 5, 2009, she was 

arrested for DWI with child passenger S.A.L. On this date, Edna was under the influence of 

butalbital. 

The original petition for protection of the children and suit affecting parent-child 

relationship was filed by the Department, and on April 6, 2009, the Department was made 

temporary sole managing conservator. At that point, because there were no family members that 

were willing to take the children, CPS ―had an emergency removal of the children and they went 

into foster care,‖ with the initial goal of family reunification. Edna was able to visit with the 

children every Thursday for one hour. 

Francisco was deported after an attempt to obtain a green card because he had failed to 

complete Wisconsin community supervision for an offense involving an underage girlfriend 
5

before he moved to Texas and met Edna. After his deportation, Francisco kept in touch with his 

children and claimed to provide for their needs. He arranged for his father, Alvaro Lopez, who 

lived in Texas, to buy the children items they needed. Francisco would then reimburse his father 

by giving the money owed to his mother, who lived in Mexico. Francisco also mailed clothes to 

the children. This arrangement continued from the date of his deportation, approximately five 

years ago. Because Francisco was in Mexico, CPS did not create a service plan for him. 

However, he participated in child visitation through telephone calls.

In May 2009 CPS prepared a new family service plan for Edna having a goal of family 

reunification. Pursuant to court order, Edna and Francisco were ―to comply with each 

requirement set out in the Department‘s original, or any amended, service plan during the 

pendency of this suit.‖ Among other requirements in the May service plan, Edna agreed to: 

(1) participate in counseling with Ronikaye Rusak at Counseling Professionals of Northeast 

Texas; (2) follow Rusak‘s recommendations; (3) participate in parenting classes given by Rusak; 

(4) participate truthfully in a drug assessment with Rusak and follow her recommendations; 

(5) provide the Department with Health, Social, Education, and Genetic History (HSEGH) forms 

by May 7, 2009; (6) undergo random drug testing; (7) ―keep a calendar of dates for her 

appointments with counseling, parenting and visitation schedule,‖ and provide ―24 hour notice to 

Kimberly Bullard in the event that she must cancel any appointment‖; (8) refrain from taking 

prescription medication not prescribed to her; (9) not introduce the children to men ―she decides to 
6

interact socially with . . . [and] not allow men to live with her throughout the life of this case‖; and 

(10) ―maintain financial stability and/or employment in order to be able to provide food, clothing, 

and a safe appropriate home.‖ The May service plan was adopted by the court, and Edna was 

ordered to comply. 

Bullard testified that Edna participated in counseling with Rusak, completed the parenting 

course, drug assessment, HSEGH forms, and underwent random drug testing. Court Appointed 

Special Advocate (CASA) Mary Epps testified that Edna attended each and every visitation and 

that the children were always glad to see her. However, according to Bullard, Edna ―missed a lot 

of services or counseling appointments that she did not notify me of,‖ ―never fulfilled the agreed 

upon ETCADA assessment at the beginning, which was also a condition of probation,‖ failed to 

keep a calendar of services, had a new boyfriend who admitted he was introduced to the children 

during visitations, and had not found employment. 

On July 9, 2009, Edna was arrested again for DWI by ingestion of hydrocodone which she 

had obtained from the emergency room for a twisted ankle, and her driver‘s license was 

suspended. She served thirty days in jail and was released on August 7, 2009. Although her 

license was suspended, Bullard and Epps testified they witnessed Edna drive herself to visitation 

several times. In October 2009, Edna was recommended to an outpatient program at Sabine 

Valley which she completed in January 2010. Epps testified that before Christmas 2009, Edna 

attended visitation wearing her sunglasses. Mary claimed Edna ―actually stumbled over a couple 
7

of chairs trying to get to the table. And she was really screaming and hollering at [Francisco‘s 

father Alvaro].‖ 

Despite Edna‘s mishaps with regard to the service plan, the Department decided to 

recommend a monitored return of the children during a February 2010 hearing in front of the trial 

court. However, Bullard testified that when she arrived for the hearing, Edna was slurring her 

speech and was ―stumbling a little bit, walking across the room.‖ When questioned, Edna 

initially denied any drug use, and when pressed, admitted to ingesting ―NyQuil, Stacker 3, which is 

a diet supplement that you get over the counter, and an off-brand of Benadryl.‖ Becoming 

informed of Edna‘s condition, the trial court ordered her to immediately take a drug test before the 

children were returned to her. Edna failed the test; the result was positive for barbiturates, and she

admitted that she did not have a prescription for the drug. 

After the failed drug test, Bullard testified Edna did not attend weekly counseling, did not 

complete the conditions of her DWI community supervision, did not maintain stable housing with 

working utilities, did not seek employment, and did not go to the literacy program. One time 

during visitation, Bullard ―stopped her and talked with her some more about her case things, and 

she—she became—she was shaking, her eyes were—were glassy, her speech became slurred. 

And even walking her out of the building, her motions became a little bit slower than normal.‖ A 

motion to revoke her DWI community supervision, containing allegations that Edna failed to 

complete her DWI education program, failed to report in person, used drugs, and was behind on 
8

her fees was filed in March 2010. 

After one six-month extension, the trial court determined that the date of dismissal for the 

cause would be on October 9, 2010. A few days before the dismissal date, the trial court heard 

evidence from Edna, her boyfriend, Jim Hale, Francisco, Lopez, Rusak, Bullard, Epps, Johnson, 

and C.G.L.‘s foster parent. After hearing recommendations regarding termination from several 

parties, the trial court found that the Department met its burden of proof to demonstrate a statutory 

ground justifying termination of parental rights and also found that termination of both parents‘

rights was in the children‘s best interests. 

II. STATUTORY GROUNDS FOR EDNA’S TERMINATION WERE MET BY

CLEAR AND CONVINCING EVIDENCE

Among other statutory grounds under Section 161.001(1) of the Texas Family Code, 

Edna‘s parental rights were terminated on grounds (E) and (O). 3 TEX. FAM. CODE ANN.

§ 161.001(1)(E), (O) (West Supp. 2010). Specifically, the trial court found that she:

engaged in conduct or knowingly placed the children with persons who engaged in 

conduct which endangers the physical or emotional well-being of the children; . . . . 

[and]

failed to comply with the provisions of a court order that specifically established 

the actions necessary for the mother to obtain the return of the children who have 

been in the permanent or temporary managing conservatorship of the Department 

of Family and Protective Services for not less than nine months as a result of the 

children‘s removal from the parent under Chapter 262 for the abuse or neglect of 

the children; 

 

3The trial court‘s order of termination also listed Section 161.001(1)(D), (F), and (P) as grounds for termination. The 

Department focuses on Section 161.001(E) and (O), and because we find the evidence sufficient to prove these 

grounds of termination, we need not discuss the remaining statutory grounds included in the court‘s order. 
9

Id.

Edna argues that the Department failed to prove these grounds by clear and convincing 

evidence. 

A. Standard of Review 

A parent‘s rights to ―the companionship, care, custody, and management‖ of his or her 

children are constitutional interests ―far more precious than any property right.‖ Santosky v. 

Kramer, 455 U.S. 745, 758–59 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Decisions 

from Texas courts show great respect for the biological bond between parent and child, 

recognizing ―that the natural right which exists between parents and their children is one of 

constitutional dimensions.‖ In re J.W.T., 872 S.W.2d 189, 194–95 (Tex. 1994) (quoting Wiley v. 

Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)); In re J.J., 911 S.W.2d 437, 439 (Tex. 

App.—Texarkana 1995, writ denied). However, the Texas Supreme Court has also recognized 

that ―the rights of natural parents are not absolute; protection of the child is paramount . . . . The 

rights of parenthood are accorded only to those fit to accept the accompanying responsibilities.‖ 

In re A.V., 113 S.W.3d 355, 361 (Tex. 2003) (citing J.W.T., 872 S.W.2d at 195). The child‘s 

emotional and physical interests must not be sacrificed merely to preserve parental rights. In re 

C.H., 89 S.W.3d 17, 26 (Tex. 2002). 

We strictly scrutinize termination proceedings in favor of the parent. In re S.K.A., 236 

S.W.3d 875, 900 (Tex. App.—Texarkana 2007, pet. denied) (citing Holick v. Smith, 685 S.W.2d 
10

18, 20 (Tex. 1985).

To terminate an individual‘s parental rights to his or her child, the Department must prove, 

and the trial court must find, by clear and convincing evidence, both of the following statutory 

requirements: (1) that the parent has engaged in one of the statutory grounds for termination; and 

(2) that termination is in the child‘s best interest. TEX. FAM. CODE ANN. § 161.001 (West Supp. 

2010); C.H., 89 S.W.3d at 23. The clear and convincing burden of proof has been defined as ―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.‖ TEX. FAM. CODE ANN.

§ 101.007 (West 2008); C.H., 89 S.W.3d at 23. Due process demands this heightened standard. 

In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Thus, in reviewing termination findings, we 

determine whether the evidence is such that a fact-finder could reasonably form a firm belief or 

conviction about the truth of the State‘s allegations. C.H., 89 S.W.3d at 25. 

In a legal sufficiency review, termination findings are given appropriate deference. See 

J.F.C., 96 S.W.3d at 266; Smith v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 673, 

679 (Tex. App.—Austin 2005, no pet.). In such cases, we consider all the evidence in the light 

most favorable to the findings to determine whether the fact-finder could reasonably have formed 

a firm belief or conviction that the grounds for termination were proven. In re J.P.B., 180 S.W.3d 

570, 573 (Tex. 2005); J.F.C., 96 S.W.3d at 266. We assume that the fact-finder resolved disputed 

facts in favor of the finding if a reasonable fact-finder could do so and disregard evidence that the 
11

fact-finder may have reasonably disbelieved or whose credibility may reasonably be doubted. 

J.P.B., 180 S.W.3d at 573. We consider, however, undisputed evidence even if it is contrary to 

the finding. Id. That is, we must consider evidence favorable to termination if a reasonable 

fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not. Id.

We must therefore consider all of the evidence, not just that which favors the verdict. Id. But we 

cannot weigh witness credibility issues that depend on the appearance and demeanor of the 

witnesses, for that is the fact-finder‘s province. Id. at 573–74.

The inquiry in a factual sufficiency review is ―whether the evidence is such that a 

fact-finder could reasonably form a firm belief or conviction about the truth of the State‘s 

allegations.‖ C.H., 89 S.W.3d at 28. We consider whether disputed evidence is such that a 

reasonable fact-finder could not have resolved that disputed evidence in favor of its finding. Id. 

If, in weighing the disputed evidence, the fact-finder could have reasonably resolved the conflicts 

to form a firm conviction that the State‘s allegations concerning the grounds for termination were 

true, then the evidence is factually sufficient and the termination findings must be upheld. Id. at 

18–19; see also J.F.C., 96 S.W.3d at 266. In applying this standard in light of the ―clear and 

convincing‖ language required by Section 161.001, we must be careful not to ―be so rigorous that 

the only fact-findings that could withstand review are those established beyond a reasonable 

doubt.‖ In re R.A.L., 291 S.W.3d 438, 443 (Tex. App.—Texarkana 2009, no pet.) (quoting In re 

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)). 
12

Only one predicate finding under Section 161.001(1) of the Texas Family Code is 

necessary to support a judgment of termination when there is also a finding that termination is in 

the child‘s best interest. A.V., 113 S.W.3d at 362; In re K.W., 335 S.W.3d 767, 769 (Tex. 

App.—Texarkana 2011, no pet.); In re N.R., 101 S.W.3d 771, 775 (Tex. App.—Texarkana 2003, 

no pet.). ―If multiple predicate grounds are found by the trial court, we will affirm based on any 

one ground because only one is necessary for termination of parental rights.‖ K.W., 335 S.W.3d 

at 769. 

B. The Evidence Was Sufficient to Meet Ground (E)

Ground (E) alleged that Edna engaged in conduct which endangered the physical or 

emotional well-being of the children. Endanger ―means to expose to loss or injury.‖ In re 

N.S.G., 235 S.W.3d 358, 367 (Tex. App.—Texarkana 2007, no pet.) (citing Tex. Dep’t of Human 

Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). This statutory ground for termination ―refers 

only to the parent‘s conduct, as evidenced not only by the parent‘s acts, but also by the parent‘s 

omissions or failures to act.‖ Id. at 366–67 (quoting In re S.K., 198 S.W.3d 899, 902 (Tex. 

App.—Dallas 2006, pet. denied)). ―The conduct to be examined includes what the parent did 

both before and after the child was born.‖ Id. ―To be relevant, the conduct does not have to have 

been directed at the child, nor must actual harm result to the child from the conduct.‖ Perez v. 

Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d 427, 436 (Tex. App.—El Paso 2004, no 

pet.) (citing Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. 
13

App.—Dallas 1995, no writ); N.S.G., 235 S.W.3d at 367). Termination for indirectly 

endangering a child under this ground ―must be based on more than a single act or omission; a 

voluntary, deliberate, and conscious course of conduct by the parent is required.‖ Perez, 148 

S.W.3d at 436 (citing In re K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.));

see Boyd, 727 S.W.2d at 533; N.S.G., 235 S.W.3d at 367. ―The specific danger to the child‘s 

well-being need not be established as an independent proposition, but may be inferred from 

parental misconduct.‖ Perez, 148 S.W.3d at 436 (citing N.K., 99 S.W.3d 295, 300 (Tex. 

App.—Texarkana 2003, no pet.)).

―Drug addiction and its effect on a parent‘s life and ability to parent may establish an 

endangering course of conduct‖ by a parent sufficient to support a petition to terminate parental 

rights. Perez, 148 S.W.3d at 436. ―A parent‘s failure to remain drug-free while under the 

Department‘s supervision will support a finding of endangering conduct under subsection (E) even 

if there is no direct evidence that the parent‘s drug use actually injured the child.‖ In re J.A.W., 

No. 02-08-215-CV, 2009 WL 579287, at *4 (Tex. App.—Fort Worth Mar. 5, 2009, no pet.) (mem. 

op.) (citing Vasquez v. Tex. Dep’t of Protective & Regulatory Servs., 190 S.W.3d 189, 196 (Tex. 

App.—Houston [1st Dist.] 2005, pet. denied)). 

The Department argues that Edna‘s abuse of butalbital, incarceration, and history of 

irresponsible choices endangered the children‘s physical or emotional well-being. Edna responds 

that she ―was a poor person who controlled her back pain with pain pills because she could not get 
14

any medical attention.‖ Aiding the trial court‘s determination in resolving this matter is the 

history of alleged addiction outlined below. 

Edna had no income and previously qualified for Medicaid. She was legitimately 

prescribed butalbital by her physician four to five years ago for migraine headaches. When her 

Medicaid ran out, Edna had no insurance. Over her lifetime, Edna visited the emergency room 

over ninety-nine times. Edna admitted that after her prescription butalbital ran out, she would 

take her mother‘s without consent. After C.G.L.‘s birth in February 2009, Edna was prescribed 

hydrocodone. Edna testified,

When I finished with that, a month—almost a month after the baby was born, I still 

have problem in my back. They thought the baby was on my nerves, but it never 

went away so I had—I made an appointment with Dr. Nelson. He done a MRI, 

which from the beginning he gave me some pain pills because I was hurting real 

bad in my right side. . . . And he done an MRI on me and it came back I had a spot 

about like this big down in here. 

She was given hydrocodone ―10s‖ every month. 

In April 2009, when she was first arrested for DWI with a child passenger,4Edna claimed 

that she had been drugged by a man named Tim Austin who lived with her in her mother‘s home. 

She explained

Sunday, [Austin] had got a woman called up CVS, pretend they me and got my 

mom‘s medication filled and he went up there and picked it up. . . . That night 

before I left to go to the store—me and my daughter. We was heading to the store 

to get gas and get the formula for the baby. My doctor prescription was in the 

house. I found out that he had put eight pills in my Dr. Pepper bottle, like two 

hours before I left . . . he sat there and bragged about it. He said it . . . I drank the 

 

4Edna understood that she was putting S.A.L. in danger when she drove under the influence of a prescription drug. 
15

Dr. Pepper way before I left. When it kicked in so quick—he put seven, eight 

pills. It kicked in real quick. . . I was fine when I pulled out of my driveway, but 

once I got to the stop sign, turned, and the cop pulled me over after when I started 

getting—walking toward the back—that‘s when I started getting dizzy. 

Edna‘s monthly hydrocodone prescription continued until her Medicaid was cut off in June 2009. 

That same month, she visited the emergency room for sinus pressure and was given a one-month 

supply of Darvocet for ―the pain in my ears.‖ 

In July 2009, when Edna was pulled over the second time for DWI, Edna was taking 

hydrocodone, for which she had been given a prescription by the emergency room physician for a 

twisted ankle. When she showed up under the influence in February 2010, Edna claimed that she 

did not knowingly ingest a barbiturate. She explained that she had a headache and took NyQuil 

and asked her cousin for ―aspirin or Tylenol.‖ Later, due to her cough, she took ―two little white 

pills I got from my cousin.‖

Recognizing that she suffered from an addiction, Edna testified, ―In the past, yes, I did have 

a drug problem. But I got myself straightened up.‖ She also stated, ―I‘m the one that took the 

pills. And I regret it. And I‘m going to always be an addict. And I‘m going to rehab to get 

help.‖ At the time of the trial in October 2010, Edna was in an inpatient drug treatment program. 

Edna claimed that she had not used drugs since February 2010. A March 2010 and July 2010 

random hair and urine drug test were both negative. Yet, her psychologist, Rusak, claimed that 

when Edna arrived for her March 3, 2010, appointment forty-five minutes late, her hands were 

shaky and her eyes were glassy, and Rusak testified that when Edna appeared, ―I noted in here that 
16

her hands were shaky.‖ Rusak stated that there were no issues with Edna‘s balance or speech 

during this meeting. 

Also, ―imprisonment is certainly a factor to be considered by the trial court on the issue of 

endangerment.‖ N.S.G., 235 S.W.3d at 367. The trial court noted that Edna was subject to a

pending motion to revoke community supervision. The motion included allegations that Edna did 

not pay fees as ordered; failed to report in July 2009, November 2009, and February 2010; did not 

complete her DWI education program; and used drugs—an allegation developed in light of the 

court‘s February 2010 drug test. Also, according to Bullard and Epps, Edna continued to drive to 

parent-child visits on a suspended license, despite warnings from Bullard that she could be arrested 

for such conduct. 

There is evidence that Edna was ingesting some form of pain medication until at least 

February 2010; the trial court was authorized to disbelieve that this was not her voluntary act. 

Edna had been arrested for DWI twice and had tested positive for barbiturates on the day her 

children were going to be returned to her. Edna admitted that she will always be an addict. In 

March 2010, her counselor testified that Edna appeared to be under the influence. Although she 

was accepted to an inpatient drug treatment program which she was attending at the time of trial, 

she had not completed the program. Also, due to her positive drug test, failure to report, and 

alleged noncompletion of DWI courses, the trial court could consider the possibility that Edna 

could be subjected to a second round of incarceration likely. Viewing the evidence above in the 
17

light most favorable to the finding of termination, the court could find that Edna‘s drug addiction, 

combined with actions which subjected her to the possibility of further incarceration, was a course 

of conduct that endangered the children. We find the trial court‘s termination on ground (E) was 

supported by legally sufficient evidence. 

Looking at the evidence in a neutral light, we further conclude the evidence was factually 

sufficient to support termination under this ground. ―[C]onduct that subjects a child to a life of 

uncertainty and instability endangers the physical and emotional well-being of a child. Drug use 

and its effect on a parent‘s life and his ability to parent may establish an endangering course of 

conduct.‖ N.S.G., 235 S.W.3d at 367–68. Although an excuse was provided for the first DWI, 

in which there was a child passenger subject to physical danger, there was no excuse for the second 

DWI. Edna stated she was taking hydrocone for a twisted ankle at the time. The trial court could 

have found that Edna knew the risk of driving under the influence and disregarded it. Also, Edna 

engaged in conduct which could have subjected her to further incarceration. The court could 

decide that Edna‘s activities resulted in uncertainty and instability in the life of her children. 

Therefore, we find that the evidence could reasonably form a firm belief that Edna‘s conduct 

endangered her children by clear and convincing evidence.5

C. The Evidence Was Sufficient to Meet Ground (O)

The trial court also found that Edna failed to comply with her court-mandated service plan 

 

5Moreover, the specific danger to the child‘s well-being need not be established as an independent proposition, but 

may be inferred from parental misconduct. N.K., 99 S.W.3d at 300.
18

and that such failure was a statutory ground supporting termination. The Department conceded

that Edna completed parenting classes, the drug assessment, the HSEGH form, psychological 

evaluation, and random drug testing, and demonstrated her parenting skills, but complained that 

Edna failed to participate in counseling and follow Rusak‘s recommendations, did not completely 

keep a calendar of dates for her appointments, took prescription medication not prescribed to her, 

introduced the children to her ―so-called boyfriend‖ of four months, and failed to maintain 

financial stability and/or employment in order to be able to provide food, clothing, and a safe,

appropriate home. 

We first address Edna‘s failure to maintain financial stability and/or employment in order 

to be able to provide food, clothing, and a safe, appropriate home.6Edna testified, ―I‘m going to 

fight for my disability and still put application for job. I‘m still doing that, which I hadn‘t had no 

luck.‖ She stated that her last application for a job was six months ago at the Budget Inn. In the 

previous year, she had tried motels and fast food places, but never obtained employment. She 

stated that she had been trying to find a job since 1999, which prompted this discussion: 

Q. Been trying to find a job since 1999?

A. Yeah. I mean, I put application so often. You go for a while, I 

wait a while, go do it again. Wait a while, do it again. You don‘t want to do it 

every week same place. So, you know, I wait, you know, get a space between each 

 

6Edna was never accused of failing to maintain an appropriate and clean home for the children. Bullard testified she 

had ―maintained the home throughout most of the case. However, she‘s had, you know, some utilities cut off. She‘s 

had to move. There‘s still—there‘s still great concern for that.‖ At the time of trial, Edna was living with her aunt in 

a trailer home, but hoped to move to a three-bedroom, two-story home with her mother. Gas and water were turned 

on in the home, but electricity was not. 
19

other, then go try again. 

Q. So this is October 4, of 2010. How many job applications have you 

honestly filled out this year?

A. This year, not that many. 

Q. Two?

A. I think it was about three. Three or four. 

Q. Do you think that‘s making an effort to find a job?

A. It‘s kind of hard to get out there, get around. Through first of year, 

being wintertime, it‘s hard for me to walk around. I have a spot in my back I 

cannot walk too far or stand up too long. 

CASA worker Mary Epps was concerned when Edna told her she was not looking for a job and she 

was not planning on having a job. 

Given the evidence of Edna‘s lack of income, work history, attitude toward finding 

employment, and the fact that she would be relying on other sources of income to pay a 

month-to-month lease on the home she intended to occupy, the court could have found by clear 

and convincing evidence that Edna failed to comply with its order requiring her to maintain 

financial stability and/or employment in order to be able to provide for herself and her children. 

Next, Edna was required to attend counseling on a weekly basis. Edna acknowledged that 

she missed several appointments, some due to ―transportation issues‖ and others due to 
20

incarceration. Rusak testified, ―[O]ver the course of a year and a half, she had twenty-three7

appointments and 11 no shows. So there was some consistency there for a—for some time when 

I thought she was making progress.‖ Rusak‘s opinion regarding Edna‘s overall progress changed 

when, according to Rusak, Edna ―came to the office drug induced‖ and wearing sunglasses. 

Rusak noted ―[h]er eyes are glassy, pupils are small.‖ Rusak believed Edna required inpatient 

treatment. Edna was not accepted for inpatient treatment because she denied recent drug abuse. 

Rusak ―talked to her and . . . said: Here‘s what you have to do. You wouldn‘t had to have used a 

substance within so long. I think you‘re being dishonest with your drug use, so here‘s the facts. 

You know, go to the drug screening and do what you need to do to get into drug rehab.‖ Edna 

was accepted into an inpatient program on July 28, 2010. In Rusak‘s opinion, Edna was ―not very 

adamant about helping herself‖ and ―the bare minimum.‖ Edna acknowledged that she was 

supposed to attend weekly counseling, and when asked why she missed six sessions between 

April 20 and June 16, 2010—a time when she was not incarcerated—she simply answered, ―I 

don‘t remember back then.‖

8

 Based on this evidence, the trial court could have found that Edna 

did not follow Rusak‘s recommendations to attend weekly counseling. 

Next, Bullard testified that Edna did ―[n]ot completely‖ comply with the requirement to 

 

7

In total, Edna had twenty-six appointments. Three appointments were kept with another counselor because Rusak 

was on maternity leave. 

8Edna points out that on February 10, 2010, the court found that she had demonstrated appropriate compliance with the 

service plan, and on March 1, 2010, the Department provided a permanency plan which stated Edna was continuing to 

attend counseling. Edna argues that the Department judicially admitted compliance with the requirement that she 

attend counseling. However, the Department‘s statement that Edna ―resumed her . . . counseling . . . with counselor 

Ronikaye Rusak‖ does not judicially establish that Edna participated in counseling and followed Rusak‘s 

recommendations. 
21

keep a calendar of appointments and notify her if she was unable to attend the appointments. ―I 

am not sure that she kept a calendar of her appointments on her.‖ Edna also took barbiturates on 

February 10, 2010, which, by her own admission, she obtained from a relative. Thus, she 

(allegedly unknowingly) ingested prescription medication not prescribed to her. 

Edna also introduced the children to Jim Hale, who was described by Edna as her 

―so-called boyfriend‖ of four months. At the time of trial, Hale was repairing a three-bedroom, 

two-story home for a landlord in exchange for reduced month-to-month rent of $250.00. Edna 

planned to live with the children in the home if they were returned to her. Both Edna and Hale 

were listed on the lease. Hale testified he planned to begin living with Edna. With respect to the 

relationship, however, Edna stated, ―We‘re not rushing in. We‘re taking it slow.‖ Although 

Edna was to refrain from ―introducing [the children] to those individuals that she decides to 

interact socially with,‖ Hale testified that he had been to every parent-child visitation for the last 

four months and that the children know him. 

We find the evidence legally and factually sufficient for the trial court to form a firm belief 

or conviction that Edna violated its orders under the statutory (O) ground of termination. 

III. STATUTORY GROUND FOR FRANCISCO’S TERMINATION WAS MET BY 

CLEAR AND CONVINCING EVIDENCE 

Among other grounds, Francisco‘s parental rights were terminated upon the finding that he 

engaged in conduct which endangered the physical or emotional well-being of J.A.C. and S.A.L.9 

 

9The trial court also found that grounds (D), (F), and (N) of Section 161.001(1) were met. 
22

We review whether legally and factually sufficient evidence supported this finding. In 

termination cases, ―[w]hen there is conflicting evidence, it is the province of the trier of fact to 

resolve such conflicts.‖ Jordan v. Dossey, 325 S.W.3d 700, 713 (Tex. App.—Houston [1st Dist.] 

2010, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 820 (Tex. 2005)). In every 

circumstance in which a reasonable trier of fact could resolve conflicting evidence either way, the 

reviewing court must presume it did so in favor of the prevailing party. Id.

Prior to the birth of the children, Francisco was placed on probation in Wisconsin because 

he committed an offense involving an underage girlfriend.10 Instead of completing his probation, 

Francisco moved to Texas and married Edna. In 2004 or 2005, when he went to Dallas to inquire 

about obtaining a green card, it was discovered that he had absconded supervision, which resulted 

in his arrest and ultimate deportation to Mexico. Although he wanted to return to the United 

States, Francisco said he could not return for ten years. He claimed that Edna was a good mother 

when they were together and was surprised to discover her conduct. 

Again, endangering acts need not have been directed at the children, or have caused an 

actual injury or threat of injury to the children to constitute conduct that endangers their physical or 

emotional well-being. In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). Conduct which occurred 

in the past which exposed J.A.C. or S.A.L. to loss or injury can be considered. N.S.G., 235 

S.W.3d at 367. However, termination for conduct indirectly affecting the child ―must be based on 

 

10Beyond this description, the actual offense is unknown. The date of his Wisconsin conviction was not introduced in 

evidence. 
23

more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the 

parent is required.‖ Perez, 148 S.W.3d at 436; N.S.G., 235 S.W.3d at 367. ―The conduct to be 

examined includes what the parent did both before and after the child was born.‖ N.S.G., 235 

S.W.3d at 366–67; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.); see

In re D.M., 58 S.W.3d 801, 808 (Tex. App.—Fort Worth 2001, no pet.) (―It is inconsequential that 

the parental conduct considered in a termination proceeding occurred before the child‘s birth.‖).

Francisco was placed on probation for having an inappropriate relationship11 with an 

underage child who he referred to as his girlfriend. The trial court was free to determine that the 

―inappropriate relationship‖ involving a minor implied more than a single act or omission. This 

inappropriate relationship led to the imposition of Wisconsin probation, and Francisco‘s conduct 

in absconding the jurisdiction and violating the terms of his probation by moving to Texas 

established a voluntary course of conduct. ―[I]ntentional criminal activity which expos[es] the 

parent to incarceration is relevant evidence tending to establish a course of conduct endangering 

the emotional and physical well being of the child.‖ Clawson v. Tex. Dep’t of Protective & 

Regulatory Servs., No. 03-05-00116-CV, 2006 WL 2032270, at *4 (Tex. App.—Austin July 21, 

2006, no pet.) (mem. op.) (quoting In re A.W.T., 61 S.W.3d 87, 89 (Tex. App.—Amarillo 2001, no 

pet.)); Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803, 806 (Tex. App.—Houston 

 

11Evidence as to how a parent has treated another child in the past is relevant regarding whether a course of conduct 

under subsection (E) has been established. See Jordan, 325 S.W.3d at 724 (citing In re D.T., 34 S.W.3d 625, 636–37 

(Tex. App.—Fort Worth 2000, pet. denied)). 
24

[1st Dist.] 1980, writ ref‘d n.r.e.).12 Because Francisco‘s conduct led to his deportation, it led to 

the physical loss of the children‘s father figure. While deportation alone cannot establish a course 

of conduct endangering a child, it is a fact properly considered when assessing endangerment. 

See Boyd, 727 S.W.2d at 533–34; D.M., 58 S.W.3d at 808 (―The State need not show incarceration 

was a result of a course of conduct endangering the child; it need only show incarceration was part 

of a course of conduct endangering the child.‖). Therefore, the trial court could conclude that the 

consequences of Francisco‘s criminal acts in the past subjected J.A.C. and S.A.L. to a life of 

uncertainty and instability, endangering their physical and emotional well-being. N.S.G., 235 at 

367–68. 

In reviewing the evidence under a light most favorable to the ruling, and with appropriate 

deference to the finder of fact, we conclude the evidence legally sufficient to support termination 

under ground (E). The trial court could have formed a firm belief or conviction that this ground 

for termination was proven. 

Also, there are no undisputed facts in this analysis; there is only the argument that 

Francisco‘s actions constituted a single act instead of a course of conduct. We will sustain a 

factual insufficiency point only if the evidence was so weak or the evidence to the contrary was so 

overwhelming that the fact-finder could not have reasonably concluded there was a high 

 

12Deportation, like incarceration, is a consequence of an action. Thus, just as incarceration alone is not enough to 

demonstrate a course of conduct that endangers the physical and emotional well-being of the children, deportation 

alone is also not enough. See Adoption of Andreas, No. 10-P-817, 2011 WL 93040, at *3 n.4 (Mass. App. Ct., 

Jan. 11, 2011); In re M.R.G., No. 20080250-CA, 2008 WL 2224277 (Utah App. May 30, 2008). 
25

probability that Francisco engaged in a course of conduct which endangered the children. D.M.,

58 S.W.3d at 808. We cannot reach such a conclusion with respect to this case. Therefore, we 

find the evidence was factually sufficient for the trial court to have found that the Department‘s 

burden to prove a course of conduct which endangered the children by clear and convincing 

evidence was met.13 C.H., 89 S.W.3d at 28. 

IV. SUFFICIENT EVIDENCE ESTABLISHED TERMINATION WAS IN THE BEST 

INTERESTS OF THE CHILDREN

A. The Holley Factors 

There is a strong presumption that a child‘s interest is best served by preserving the 

conservatorship of the parents; however, clear and convincing evidence to the contrary may 

overcome the presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). In deciding whether 

termination would be in the best interest of the child, the trial court may consider this nonexclusive 

list of factors: (1) the desires of the child; (2) the emotional and physical needs of the child now 

and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the 

 

13Francisco also argues that his counsel rendered ineffective assistance by failing to include a complaint about the 

legal and factual sufficiency to support the ground of termination that Francisco constructively abandoned his 

children. Section 263.405 of the Texas Family Code requires a party appealing an order terminating a parent-child 

relationship in a state-initiated termination proceeding to file a statement of points on which the party intends to appeal 

―[n]ot later than the 15th day after the date a final order is signed.‖ TEX. FAM. CODE ANN. § 263.405(b)(2) (West 

2008). Although counsel for Francisco filed a statement of points, the constructive abandonment ground was not 

challenged. Typically, we may not address an issue that is not included in a timely filed statement of points. TEX.

FAM. CODE ANN. § 263.405(i) (West 2008); In re J.H.G., 302 S.W.3d 304, 306 (Tex. 2010). However, an appellant 

may make a due process claim and raise ineffective assistance of counsel on appeal when there is a complete failure to 

file the statement of points, which precludes the reviewing court from considering a meritorious complaint. See In re 

J.O.A., 283 S.W.3d 336 (Tex. 2009); see also In re B.G., 317 S.W.3d 250, 256 (Tex. 2010). We need not consider 

this point of error because we find the evidence was sufficient to demonstrate Francisco engaged in conduct which 

endangered the children‘s physical or emotional well-being. 
26

parental abilities of the individuals seeking custody; (5) the programs available to assist these 

individuals to promote the best interest of the child; (6) the plans for the child by these individuals 

or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts 

or omissions of the parent which may indicate that the existing parent-child relationship is not a 

proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 

S.W.2d 367, 371–72 (Tex. 1976); K.W., 335 S.W.3d at 770. Also, evidence offered to prove 

grounds for termination, contact between the natural parent and child, degree of financial support, 

quality of care rendered by a child‘s care giver, and their willingness to adopt are all relevant to 

determining if the termination is in the best interest of the child. C.H., 89 S.W.3d at 28; In re 

J.W.M., 153 S.W.3d 541, 548–49 (Tex. App.—Amarillo 2004, pet. denied) (―While the prospect 

of adoption into a stable home cannot alone be said to be a determinative factor, it clearly is among 

the factors the court properly could consider.‖). It is unnecessary to prove all of these factors as a 

condition precedent to parental termination. C.H., 89 S.W.3d at 27. 

B. Termination of Edna’s Parent-Child Relationship Was in the Children’s Best 

Interests

In this case, Epps testified that E.N.C., the oldest child, did not want to return home to her 

mother in the condition Edna was in. Epps stated that the other children old enough to speak 

wanted to be reunited with Edna. The children‘s ad litem attorney, Larry Maninger, testified that 

the children, except for the seven-year-old, wanted to be returned to Edna. However, he also 

testified, ―They‘ve also made it very clear that they don‘t want to go back to their mother unless 
27

their mother gets her problems resolved.‖ Francisco‘s father testified the children desired to live 

with their mother. We find this factor weighs against termination. 

The oldest child in this case was fourteen at the time of trial, and the youngest child was 

less than two years old. The emotional and physical needs of the children now and in the future 

are great. This factor weighs in favor of termination. 

With respect to emotional and physical danger to the children, while the Department did 

not prove the allegation that Edna gave the children medications that were not age-appropriate, 

Edna drove while under the influence with S.A.L. in the car and appeared in court under the 

influence on the day of the monitored return of the children. The court could have found that 

Edna‘s drug addiction, and possible future incarceration, presented emotional and physical danger 

to the children now and in the future. This factor weighs in favor of termination.

Edna‘s parental abilities, aside from her addiction to drugs and driving while under the 

influence, were good. Bullard testified that Edna always kept a clean and appropriate home for 

the children and that the children were always happy to see Edna at parent-child visitations, at

which Edna acted appropriately. Edna saw that the children attended school and, although J.A.C. 

had trouble with math, all of the children had passing grades. This factor weighs against 

termination. 

Edna planned to move into a three-story, two-bedroom house with the children if they were 

returned to her, pending her completion of inpatient treatment and the awaited outcome on the 
28

revocation of her community supervision. Bullard testified the Department‘s plan was to have 

the four older children remain together in foster care with the Department named sole permanent 

conservator of the children. The Department planned for C.G.L. to remain with, and possibly be 

adopted by, her separate foster family. Whereas Edna had lived in five residences in the past 

eighteen months, Bullard described that the children were in a stable environment in their foster 

home placement. As to C.G.L., foster parent Amber Mitchell testified that C.G.L. was placed in 

her home when she was seven months old and has settled into her new family of seven. C.G.L. 

calls Mitchell mama, Mitchell and her husband have the ability to support C.G.L., and Mitchell 

testified they would adopt C.G.L. immediately if possible. Mitchell testified, ―I think the best 

interests would—you know, for her, for stability, for rights to be terminated and if we were 

allowed to adopt so she can continue in the life she‘s known.‖ We find the plans for the children 

and stability of the home or proposed placement factor neutral, with the exception that as to 

C.G.L., the foster parents‘ plan weighs in favor of termination. 

The acts indicating that placement with Edna might not be a proper placement included her 

problems with prescription drugs, her lack of income, and inability to properly search for and 

obtain employment. This evidence could lead a fact-finder to believe that the children‘s needs 

would not be taken care of. Bullard also testified that Edna‘s conduct in allowing men to live with 

her whom she did not know well also endangered the children. This factor weighs in favor of 

termination. 
29

We now consider Edna‘s excuses. Edna argues that as of February 2010, she has 

remained drug free and thus, termination is not in the best interests of the children. As stated in 

Jordan:

Although evidence shows Jordan has made some recent improvements to her past 

situation, those improvements cannot absolve her of her long history of 

irresponsible choices. See In re J.O.A., 283 S.W.3d at 346 (―While the recent 

improvements made by [appellant] are significant, evidence of improved conduct, 

especially of short-duration, does not conclusively negate the probative value of a 

long history of . . . irresponsible choices.‖).

325 S.W.3d at 732. Edna also argues that her lack of education and misfortune with respect to 

medical problems should not be considered. ―A parent‘s lack of education, training, or 

misfortune is considered when reviewing excuses for acts or omissions of a parent; however, these 

considerations do not negate evidence tending to show that termination is in the child‘s best 

interest.‖ Id. (citing In re S.H.A., 728 S.W.2d 73, 89–90 (Tex. App.—Dallas 1987, writ ref‘d 

n.r.e.)). 

With regard to all of the children, Bullard testified, ―[T]heir placement should continue as 

they are,‖ and ―termination of parental rights should be granted at this time‖ because ―these 

children are in a stable environment in which they‘re thriving in and they‘re growing. To put 

them back into a home in which nothing‘s changed would create an environment in which they 

could possibly digress from where they are now.‖ Maninger testified that he could not 

recommend that the children be returned to Edna in her current state. However, with the 

exception of C.G.L., Maninger recommended that Edna‘s rights not be terminated. Epps also 
30

recommended termination. 

Considering the Holley factors, and in light of all of the evidence, the trial court could have 

reasonably formed a firm belief or conviction that termination of Edna‘s parental rights was in the 

best interests of the children. Therefore, we conclude the evidence was legally and factually 

sufficient to support the court‘s best-interest finding. This point of error is overruled. 

C. Termination of Francisco’s Parent-Child Relationship Was in the Children’s 

Best Interests

There was no evidence that any of the children wanted to live with their father in Mexico. 

J.A.C. was twelve at the time of trial, and S.A.L. was eleven. The emotional and physical needs 

of the children now and in the future are great. The first two Holley factors weigh in favor of 

termination. 

As far as the emotional and physical dangers to J.A.C. and S.A.L. now and in the future, 

Edna testified Francisco never endangered the children and was a good father. She said Francisco 

raised E.N.C. and N.A.G., even though they were not his children. Edna stated that Francisco 

provided for his children‘s physical needs. ―[H]e does the best he can through his daddy or

whatever he can. He does what he can for his children‖ and provides ―whatever I need. If I need, 

say-- . . . when school first starts, my children need shoes, backpacks, couple suit of clothes. 

Their grandpa will—actually it‘s their dad doing it, but either grandpa go to get it for them, and the 

dad reverses back to their mom in Mexico because it‘s easier that way.‖ From Edna‘s account, 

Francisco was a good parent. No evidence was presented regarding his parental ability. Also, 
31

there was no testimony that the Department had programs available which could assist Francisco 

in Mexico to promote the best interests of the children. We find the third through fifth Holley

factors weighs against termination. 

Although Francisco testified, it appeared that he did not have a plan for J.A.C. and S.A.L. 

He stated that the children should be with their mother. The agency planned for the four oldest 

children to remain together in foster care while C.G.L. stayed with her foster family. We find this 

sixth factor weighs in favor of termination. However, with respect to the stability of Francisco‘s 

home or proposed placement of J.A.C. and S.A.L., no testimony was presented. Thus, the 

seventh Holley factor is neutral. 

Francisco‘s inappropriate relationship with a minor and resulting deportation for failure to 

complete his probation indicated that the parent-child relationship might not have been 

appropriate. No excuse for these acts was provided. We find the last two Holley factors weigh 

in favor of termination. 

Bullard stated that because Francisco has not provided any financial support and had not 

contacted the children, with the exception of a few telephone calls, termination was recommended. 

Epps and Johnson also recommended termination. Even Francisco‘s father testified that it would 

be good for a married couple to adopt J.A.C. and S.A.L. and feed and clothe them and provide 

them with a good education. 

Considering the Holley factors, and in light of all of the evidence, the trial court could have 
32

reasonably formed a firm belief or conviction that termination of Francisco‘s parental rights was in 

the best interests of J.A.C. and S.A.L. Therefore, we conclude the evidence was legally and 

factually sufficient to support the court‘s best interest finding. This point of error is overruled. 

V. TRIAL COURT DID NOT ERR IN ADMITTING RUSAK’S TESTIMONY

In a separate point of error, Edna argued that the trial court erred in admitting Rusak‘s 

testimony over Rule 501 objections of privilege. TEX. R. EVID. 501. The admission or exclusion 

of evidence is a matter within the sound discretion of the trial court. City of Brownsville v. 

Alvarado, 897 S.W.2d 750, 753 (Tex. 1995); Hathcock v. Hankook, 330 S.W.3d 733, 740 (Tex. 

App.—Texarkana 2010, no pet.). A trial court abuses its discretion when it acts without regard 

for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 

241–42 (Tex. 1985); Hathcock, 330 S.W.3d at 740. We must uphold the trial court‘s evidentiary 

ruling if there is any legitimate basis for the ruling. Owens–Corning Fiberglas Corp. v. Malone, 

972 S.W.2d 35, 43 (Tex. 1998).

As Rusak was about to testify, Edna objected that she was ―not allowed to—to testify as 

concerning any confidential communication without‖ her permission. The Department argued 

that Edna signed a waiver of privilege indicating her consent for Rusak to consult Bullard. Edna 

also had signed a family service plan stating, ―I understand information for the evaluation of my 

progress may come from any and all of the following sources: Me, family members, Child 

Protective Service staff . . . and other agencies, individuals, and community professionals.‖ 
33

Counsel for Edna complained that her waiver authorizing communications from Rusak to Bullard 

was ―specific to Ms. Bullard.‖

14

 The trial court found that because Edna allowed Bullard to be 

privy to counseling sessions, she waived any privilege. 

Edna argues that the waiver was not produced in evidence. However, the record of the 

proceedings indicate that the waiver was provided to counsel and ―[t]hat‘s what I just handed to 

you.‖ Rusak also testified, ―[S]he did give me release to give information to her case worker also 

in the intake.‖ In light of the record, and possibility from the record that the waiver was available 

in the courtroom, we find that the trial court did not err in finding a waiver of privilege. Edna‘s 

last point of error is overruled.15 

VI. CONCLUSION 

We affirm the trial court‘s judgment. 

Jack Carter

Justice

CONCURRING AND DISSENTING OPINION

Edna Lopez and her children who were the subject of this suit first came to the attention of 

the judicial system April 6, 2009, when an original petition was filed by the Child Protective 

 

14On appeal, this argument that the waiver was specific to Bullard was not advanced. Therefore, we do not address it. 

15We further note that Edna would be unable to demonstrate harm in light of cumulative testimony offered by Bullard 

that Edna did not pass the February drug test, did not attend weekly counseling, was arrested for DWI during the 

pendency of the case, drove with a suspended license, and appeared under the influence at a parent-child visitation.
34

Services division of the Texas Department of Family and Protective Services (CPS). At that time, 

Francisco Lopez16 was generically identified (with two others) as ―the father of the child,‖ with 

the observation that his address was not known. An amended petition filed two days later alleged 

Francisco to be the father of the male child born March 25, 1996, and the female child born 

November 19, 1999; again, it was alleged that Francisco‘s whereabouts were unknown. An 

attorney ad litem was appointed for Francisco and the alleged father of another of the children; that 

attorney ad litem duly filed a response on Francisco‘s behalf. A family service plan, which made 

no mention of Francisco, was filed May 29 and identified the goal of the plan to be family 

reunification. Francisco was served by certified mail July 27, 2009. In a ―Permanency Plan and 

Permanency Progress Report‖ filed by CPS December 15, 2009, Francisco is mentioned as the 

father of the two children mentioned previously with the notation that he cannot return to the 

United States for ten years due to unnamed criminal activity while in this country, but would 

continue to participate in monthly conference calls with the children. Each subsequent progress 

report repeats the same information about Francisco verbatim. There is no indication that any 

home study of Francisco‘s home was conducted or that he was permitted to participate in any plan 

dictated by the trial court or CPS at any time, except for the monthly telephone calls previously 

noted. 

Once CPS has been appointed managing conservator of a child, Texas Family Code 

 

16To distinguish Francisco Lopez from Edna Lopez, the mother of all of the children, reference to these people will 

henceforth be made by their first names only.
35

Section 263.401 contains very precise and explicit time limits on the judicial involvement with the 

child. Specifically, it prescribes that ―on the first Monday after the first anniversary of the date 

the court rendered a temporary order appointing the department as temporary managing 

conservator, the court shall dismiss the suit‖ with the proviso that one 180-day extension of that 

one-year period can be made if the ―court finds that extraordinary circumstances necessitate the 

child remaining in the temporary managing conservatorship of the department and that continuing 

the appointment of the department as temporary managing conservator is in the best interest of the 

child.‖ TEX. FAM. CODE ANN. § 263.401 (West 2008).

Here, the first order appointing CPS as temporary managing conservator of the children 

was entered April 9, 2009. The entry of this order thus would have dictated the first deadline of 

the first Monday after April 9, 2010, for final determination, absent an extension. Even with the 

180-day extension that was granted, CPS and the trial court were forced to take the fork in the road 

of either terminating the parental rights or dismissing the case very shortly after the date set for 

hearing. Everyone was operating under the statutory gun.

The trial court terminated Francisco‘s parental rights, finding that he had: (1) knowingly 

placed or knowingly allowed the children to remain in conditions or surroundings which 

endangered the physical or emotional well-being of the children; (2) engaged in conduct or 

knowingly placed the children with persons who engaged in conduct which endangers the physical 

or emotional well-being of the children; (3) failed to support the children in accordance with 
36

Francisco‘s ability during a period of one year ending within six months of the date of the filing of 

the petition; and (4) constructively abandoned the children who had been in the permanent or 

temporary managing conservatorship of CPS or an authorized agency for not less than six months, 

and (a) CPS or an authorized agency had made reasonable efforts to return the children to 

Francisco; (b) Francisco had not regularly visited or maintained significant contact with the 

children, and (c) Francisco demonstrated an inability to provide the children with a safe 

environment.

We must remember that a court may order termination of the parent-child relationship only 

if the court finds the allegations to be true by clear and convincing evidence. TEX. FAM. CODE 

ANN. § 161.001 (West Supp. 2010). The standard ―clear and convincing‖ evidence is defined as 

―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.‖ Spangler v. Tex. Dep’t of 

Protective & Regulatory Servs., 962 S.W.2d 253, 256 (Tex. App.—Waco 1998, no pet.). 

The majority only addresses the finding that Francisco had engaged in conduct which 

endangered the physical or emotional well-being of the children. The majority correctly points 

out that this conduct cannot be considered an isolated act but, rather, a voluntary, deliberate, and 

conscious course of conduct. For this, the majority relies upon Francisco‘s rather foggy 

description of what the majority calls an ―inappropriate relationship‖ with a person whom 

Francisco described as being underage. The evidence upon which this rests is the following 
37

exchange during the trial. On direct examination of Francisco, 17 the following exchange 

occurred:

Q. Okay. Now, you got in trouble in Wisconsin, right?

A. Yes. Correct.

Q. You were having – your girlfriend was underage?

A. Yes. Correct.

That is the sole source for the assumption that Francisco engaged in an inappropriate 

relationship with a child. One must infer that there was an inappropriate relationship and simple 

inferences not based on clear and convincing evidence will not support such a finding. One could 

just as easily infer that he had a young female friend to whom he had given a beer and was 

convicted of that offense—a much less serious offense. At any rate, Francisco‘s other testimony 

was that he had been placed on some kind of probation for whatever offense he committed, but he 

failed to live up to the terms of his probation and moved to Texas. After he had lived in Texas, he 

(rather naively) went to Dallas to apply for legal residency status; when the prior criminal offense 

was discovered, he was deported. Of course, whatever conduct Francisco perpetrated in 

Wisconsin occurred before he even met Edna. One must calculate, then, that since the elder of the 

two children Francisco sired by Edna was over fifteen years old at the time of trial, the incident for 

which he was convicted had taken place not less than sixteen years before the time the order 

 

17Francisco appeared during the trial only for his testimony by telephone through an interpreter. He was unable to 

attend the trial because of his deportation to Mexico.
38

terminating his parental rights was entered.

The commission of a very unclear offense (the gravity of which is unproven) and his failure 

to live out the terms of a probated sentence over a decade and a half before is hardly clear and 

convincing evidence that Francisco engaged in a voluntary, deliberate, and conscious course of 

conduct which endangered the physical or emotional well-being of his children—children who 

were not even yet thought about, much less conceived. There is no clear and convincing evidence 

here.

As to the other findings by the trial court upon which the termination was based, there 

appears to be absolutely no evidence at all to support them.

When one considers the finding that Francisco knowingly placed or knowingly allowed the 

children to remain in conditions or surroundings which endangered the physical or emotional 

well-being of the children, Francisco‘s testimony that he believed the children to have been in 

perfectly acceptable surroundings and that Edna had not abused drugs or alcohol when they were 

together is not controverted. Francisco testified that his father saw the children on many 

occasions and made no such report of mistreatment, neglect, or maltreatment to him. Conversely, 

Francisco said that he thought (erroneously, it turns out) that Edna was a good mother to the 

children. Erroneous information about children who are hundreds of miles away does not 

constitute knowing conduct. 

As to the finding that Francisco failed to support the children in accord with his ability 
39

during a period of one year ending within six months of the date of the filing of the petition, the 

evidence is once again uncontroverted that Francisco elicited the aid of his father (who apparently 

made regular trips in the area in which the children were located) in delivering things to his 

children. He would then reimburse his father by giving his mother funds in Mexican currency. 

Francisco only made $400.00 per month, but asked if he needed to get a second job to send more 

money than he had in the past. There is a simple lack of any evidence that Francisco was not 

supporting his children in accord with his ability to pay; except for the testimony he provided as to 

his income, there is no other evidence of ability (or inability) to pay. 

There is simply no evidence at all that the requirements of Section 161.001(a)(N) of the 

Texas Family Code have been satisfied. To commence, although there is ample evidence that 

CPS had been appointed temporary managing conservator of the children, there is simply no 

evidence at all that Francisco constructively abandoned the children, that CPS had made 

reasonable efforts to return the children to Francisco, or that there was any evidence that he had 

demonstrated an inability to provide the children with a safe environment, each of which is 

required to be proven. There was no home study of Francisco‘s situation and there was no 

attempt to return the children to him in the record. Francisco testified that he spoke to the children 

on the telephone on a regular basis, but was constrained from visiting them personally because he 

had been deported. 

It is obvious that Francisco‘s role in this trial was that of the forgotten man. Perhaps if the 
40

State had truly considered his role as the father of the children, it could have obtained copies of the 

Wisconsin papers to affirmatively show what crime Francisco had committed there. It chose not 

to do that. Was it a heinous crime? Who knows? Perhaps if CPS had considered the 

importance rightly placed on the value of the parent and child relationship between Francisco and 

his children, its agents would have seen to the commission of a home study of Francisco‘s home. 

It did not. Perhaps if some request for support was made by CPS to Francisco during the time that 

the children were under CPS conservancy, he would have provided what he could afford. There 

is no evidence that this took place.

I would affirm the termination of the parent and child relationship as to Edna, but I would 

reverse the termination as it pertains to Francisco. 

Bailey C. Moseley

Justice

Date Submitted: June 29, 2011

Date Decided: August 16, 2011