1 

## NO. 12

- 22

- 00277 -CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN THE INTEREST OF

A. M., A.C. & C.C.,

CHILDREN § § § APPEAL FROM THE 369TH

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION S.C. and J.C. appeal the termination of their parental rights. J.C. presents one issue on appeal, and S.C. presents ten issues

. 1 We affirm.

B ACKGROUND J.C. is the father of A.C. and C.C ., and S.C. is the mother of A.C., A.M., and C.C. 2 On August 21, 2020, the Department of Family and Protective S ervices (the Department) filed an original petition for protection of a child, for conservatorship, and for termination in suit affecting the p arent

- child relationship. The Department was appointed temporary m anaging conservator of the children, and the p arents were allowed limited access to the children. At the conclusion of the trial on the merits, the jury found, by clear and convincing evide nce, that the parent

- child relationship between J.C. and the childr en and S.C. and the children should be terminated. Consequently, the trial court found that J.C. and S.C. both engaged in one or more of the acts or omissions necessary to support termination of their parental rights under subsections (D) and (E) of Texas Family Code Section 161.001(b)(1). The trial c ourt also found that termination of the parent

- child relationship between J.C. and the

1 S.C. lists her issues in two different sections of her brief. We construe her brief as raising ten issues

.

2 The parties entered a Rule 11 agreement concerning A.M., which named the Departmen t as A. M.’s permanent managing conservator and S.C. as a possessory conservator. The jury was waived as to A.M., and the trial court adopted the Rule 11 agreement in its ord er. The parties do not appeal with regard to A.M.2 children and S.C. and the children is in the child ren’ s best interest. Based on these findings, the trial court ordered that the parent

- child relationship between J.C., A.C., and C.C. be terminated. T he trial court likewise ordered that the parent

- child relationship between S.C., A.C., and C.C. be terminated. This appeal followed.

J URISDICTION In her fifth issue, S.C. asserts the trial court’s jurisdiction expired befor e trial commenced, rendering the trial court’s subsequent order of termination void. Standard of Review and Applicable Law Whether a trial c our t possesses subject matter jurisdiction is a question of law that we review de novo. Tex. Dep ’ t of Parks & Wildli fe v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004); In re X.A.F. , No. 07 -19-00443- CV, 2020 WL 2896533, at *1 (Tex. App.

— Amarillo June 1, 2020, no pet.) (mem. op.); In re T.B. , 497 S.W.3d 640, 644 (Tex. App.

— Fort Worth 2016, pet. denied). Section 263.401(a) of the Texas Family Code, states as follows:

Unless the court has commenced the trial on the merits or granted an extension under Subsection (b) or (b

- 1), 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 ’s jurisdiction over the suit affecting the parent

- child relationship filed b y the department that requests termination of the parent

- child relationship or requests that the department be name d conservator of the child is terminated and the suit is automatically dismissed without a court order. Not later than the 60 th day before th e day the suit is automatically dismissed, the court shall notify all parties to the suit of the automatic dismissal date.

T EX

. F AM

. C ODE A NN . § 263.401(a) (West Supp. 2022). In other words, a trial court automatically loses jurisdiction over a termination of parental rights case if the court does not commence a trial on the merits or grant an extension by the dismis sal deadline. In re Z.S. , 631 S.W.3d 313, 316 (Tex. App.

— Houston [14 th Dist.] 2020, no pet.). If the trial court fails to
commence t rial on tim e, the court ’s jurisdiction over the suit is terminated, and the suit is automatically dismissed without a court order. T EX

. F AM

. C ODE A NN

. § 263.401(a) ; In re G.X.H. , 627 S.W.3d 288, 292 (Tex. 2021). Additionally, Subsection 263.401(b) provides that the
t rial court may not retain the suit on its docket after the time described in Subsection 263.401(a) unless the cou rt finds that (1) extraordinary circumstances necessitate the child remaining in the temporary conservatorship of the Department , an d (2) continuing the Department ’ s appointment as temporary managing conservator is in the children ’ s best interest. T EX

. F AM

. C ODE A NN

.3 § 26 3.401(b). If the trial court makes the required findings, it may retain the suit on its docket for not more than 180 days aft er the time set fo rth in Subsection 263.401(a). Furthermore, if a tri al court grant s a motion for new trial, the new trial must be commenced within 180 days of the da te the motion for new trial is granted. Id . § 263.401(b-1) (1). Analysis Here, the trial court named the Department temporary managing conserv ator of the children on August 21, 2020. The refore, the initial dismissal da t e was Monday, August 23, 2021. See id. § 263.401(a). On August 16, 2021, the trial court issued an order retaining the suit

on its docket and setting February 14, 2022, as the new dismissal date and January 17, 2022 , as the new trial date. The tria l court held jury selection on January 18 and trial occurred February 7 through 11 and 14 through 15. The jury found in favor of termination. On March 25, S.C. and J.C. filed a motion for new trial, alleging in part they w ere denied their right to appoi n ted counsel. Following a hearing on May 31, the trial court granted the motion for new trial and set the case for jury selection on August 8. The written order granting the moti on for new trial does not include a new trial date. The trial court’s docke t sheet includes a notation that it granted the motion for new trial and set trial for August 8. And a May 31 order appointing S.C.’s attorney also indicates an August 8 trial dat e. None of the trial court’s orders set a di smissal date. S.C. urges “ther e was no order extending the case, retaining the suit on the docket, or setting a new dismissal date before the new trial court wa s granted” and that “the trial court abused its di scretion.” She contends that the trial court ’s failure to set a new dismiss a l date within the time prescribe d by statute constitutes error. However, any alleged defects regarding the timing and form of th e order resett ing the dismissal date are not juris dictional

. See G.X.H. , 627 S.W.3d at 301 (claimed defects relating to trial court’s compliance with requirements in subsection (b) are not jurisdictional and must be preserved for appeal ) ; see also, In re P.Z.F. , 651 S.W.3d 147, 153 (Tex. App.

— Da llas 2021 , pet. denied) (noting G.H.X. holding that “claimed defects relating to the o ther requirements of 263.401(b) are not [jurisdictional]” and concluding complaints that trial court failed to make findings described in subsection (b) were not raised i n trial c ourt and, thus, were not preserved for appeal ); M. P. v. Tex. Dep ’ t of Fam. & Protective Servs. , No. 03 -22-00163- CV, 2022 WL 4281617, at *5 (Tex. App.

— Austin Sept. 16, 2022, pet. filed ) (mem. op.) (applying G.X.H. and

co ncluding Mother did not pre serve jur isdictional argument for review because she did not raise4 complaint about la c k of best interest finding until after initial dismissal date passed); In re P.R. , No. 10 -22-00062- CV, 2022 WL 3655402, at *3 (Tex. App.

— Waco A ug. 24, 2022, pet. denied ) ( mem. op.) (“any complaint regarding the failure of the trial court to make an express finding of extraordinary circumstances was not preserved for appellate review”); In re J.F. , No. 07 -22- 00058- CV, 2022 WL 3328274, at *3 (Tex. A pp.— Amarillo Aug. 11, 2022, no pet.) (mem. op.) (“Whil e a trial court ’ s failure to timely extend the automati c dismissal date before that date passes is jurisdictional, claimed defects relating to the other requirements of subsection 263.401 (b) are not” ); In re R.J.R. , No. 04 -21-00246- CV, 2021 WL 5813827, at *3 (Tex. App.

— San Antonio Dec. 8, 2021, pet. denied) (m e m. op.) (complaint th at trial court failed to make S ection 263.401(b) findings was not preserved because appellant did not raise issue in the t rial court) . As a result, any error in the trial court’s failure to set a specific dismissal date did not divest the trial court of jurisdiction. 3 We overrule S.C.’s fifth issue.

T ERMINATION OF P ARENTAL R IGHTS In J.C.’s sole issue and S.C.’s ninth issue, they urge the evidence is legally and factually insufficient to terminate their parental rights pursuant to su bsections (D) and (E) of Texas Family Code Section 161.001(b)(1). Standard of Review When confronted with both a legal and factual s ufficiency c hallenge, an appellate cour t must fi rst review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co. , 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S. , 1 S.W.3d 190, 197 (Tex. App.

— Amarillo 1999, no pet.). In conducting a legal suf ficiency rev iew, we must look at all th e evidence in the light most favorable to the finding to determine whether a reasonab l e trier of fact could have formed a firm belief or conviction that its findings were true. In re J.F.C. , 96 S.W.3d 256, 266 (Tex. 2 002). We mus t assume that the fact finder settle d disputed facts in favor of its finding if a reasonable fact finder could d o so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. Id

. The appropriate standa rd for revie wing a factual sufficiency challenge to the termination findings is whether the evidence is such that a fact fin d er could reasonably form a firm belief or

3 We also note that S.C. asked the tri al court to grant her a new trial. As a resu lt, she is estopped from challeng i ng the trial court’s ruling under the invited error doctrine. See In re S.T. , 508 S.W.3 d 482, 488 (Tex. App.

— Fort Worth 2015, no pet.).5 conviction about the truth of the petitioner ’ s allegations. In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002). In determining whether the fact fin der has met this standard, an appellate court considers all the evidence in t he record, both that in support of and contrary to the trial court ’ s findings. Id

. at 27

- 29. Further, an appellate court should con sider whethe r disputed evidence is such that a

r easo nable fact finder could not have reconciled that disputed evidence in fa v or of its finding. In re J.F.C. , 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony

. Nordstr om v. Nordstrom , 965 S.W.2d 575, 580 (Tex. App.—Houston [1 st Dist.] 1997, pet. denied). Applicable Law Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood , 17 S.W.3d 75 0, 759 (Tex. App.

–Austin 20 00), pet. denied per curiam , 53 S.W.3d 684 (Tex. 2001); In re J.J. , 911 S.W.2d 437, 4 3 9 (Tex. App.

— Texarkana 1995, writ denied). Because a termination action “permanently sunders” the bonds between a parent and child, the proceed ings must be strictly scrut inize d. W iley v. Spratlan , 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw , 966 S.W.2d 174, 179 (Tex. App.—El Paso 1998, no pet.). Section 161.001 of the Family Code permits a court to order termination of parental rights if two elem ents are established. T EX

. F AM

. C ODE A NN . § 161.001 (West 2022); In re J.M.T. , 39 S.W.3d 234, 237 (Tex. App.

— Wac o 1999, no pet.). First, the parent must have engaged in any one of the acts or omissions itemized in the second subsection of the s tatute. T EX

. F AM

. C ODE A NN . § 161.001(b )(1); Gre en v. Tex. Dep ’ t of Protective & Regulatory Servs. , 25 S.W.3d 213, 219 (Tex. App.— El Paso 2000, no pet.); In re J.M.T. , 39 S.W.3d at 237. Second, termination must be in the best interest of the child. T EX

. F AM

. C ODE A NN . § 161.001(b)(2); In re J.M .T. , 39 S.W.3d at 237. Both elements must be established by clear and convincing evid ence, and proof of one element does not alleviate the petitioner ’ s burden of proving the other. T EX

. F AM

. C ODE A NN . § 161.001; Wiley , 543 S.W.2d at 351; In re J.M.T. , 39 S.W.3d at 237. The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated. T EX

. F AM

. C ODE A NN . § 161.001; In re J.J. , 911 S.W.2d at 439. Clear and convincing evidence mea ns “the measure or degre e o f proof t hat 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.” T EX

. F AM

. C ODE A NN . § 101.007 (West 2019). The burden of proof is upon the party seeking the deprivation of parental rights. In re J.M.T. , 39 S.W.3d at 240.6 Subsections (D) and (E) The trial c o urt may order termination of the parent

- child relationship if it finds by clear and convincing evidence that the parent knowingly p laced or kno wingly allowed the child to remain i n conditions or surroundings which endanger the physical or emotional well

- b e ing of the child. T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(D). Subsection (D) addresses the child ’ s surroundings and environment. In re N.R. , 101 S. W.3d 771, 775

- 76 (Tex. A pp.

— Texarkan a 2003, no pet.). The child ’ s “environment” refers to the suitability of the child ’ s living conditions as well as the conduct of parents or others in the home. In re S.R. , 452 S.W.3d 351, 360 (Tex. App.

— Houst on [14 th Dis t.] 2014, pet. denied). The relevant time frame to determine whether there is clear and convincing evidence of e n dangerment is before the child was removed. Ybarra v. Tex. Dep ’ t of Human Servs. , 869 S.W.2d 574, 577 (Tex. App.

— Corpus Christi 199 3, no pet.). Further, subse ction (D) pe rmits ter mination based on a single act or omission. In re R.D. , 955 S.W.2d 364, 367 ( Tex. App.

— San Antonio 1997, pet. denied). The trial court may order termination of the parent

- child relationship if it finds by cle ar and convi ncing evidence that the par ent engag ed in conduct, or knowingly placed the child with persons who engaged in con d uct, that endangers the physical or emotional well

- being of the child. T EX

. F AM

. C ODE A NN

. § 161.001(b)(1)(E). “Endanger” means to expose to lo ss or injury

or to jeopardi ze. Tex. Dep ’ t of Human Servs. v . Boyd , 727 S.W.2d 531, 533 (Tex. 1987). It is
not ne c essary that the conduct be directed at the child or that the child actually suffers injury. Boyd , 727 S.W.2d at 533. Termination un der subsecti on (E) must be based on mor e than a single act or omission. In re D.T. , 34 S.W.3d 625, 634 (Tex. App.

— Fort Worth 2000, pet. denied). Subsection (E) requires us to look at the parent ’ s conduct alone, including actions, omissions, or the parent ’ s failure to act. In re D.J. , 100 S.W.3d 658, 662 (Tex. App.

— Dallas 2003, pet. denied). Scienter is not required for an appel l ant ’ s own acts under Section 161.001(b)(1)(E), although it is required when a parent places the child with others who engage in end angering
act s. In re U.P. , 105 S.W.3d 2 22, 236 ( Tex. App.

— Houston [14 th Dist.] 2003, pet. denied), overruled on other ground s , In re L.C.L. , 599 S.W.3d 79, 85

- 86 (Tex. App.

— Houston [14 th Dist.] 2020, pet. denied). Generally, conduct that subjects a child t o a life of uncertainty and instability endanger s the physical and emotional well

- being of the child. In re R.W. , 129 S.W.3d 732, 739 (Tex. App.

— Fort Worth 2004, pet. denied). Though imprisonment of a parent is insufficient, standing7 alone, to constitute “engaging in conduct which endangers the emotiona l or physical well -being of the child,” it is a factor to consider on the is s ue of endangerment. See Boyd , 727 S.W.2d at 533- 35. Because it exposes the child to the possibility that the parent may be impaired or imprison ed, ille gal drug use may su pport ter mination under subsection (E). Walker v. Tex. Dep ’ t of Family & Protective S e rvs. , 312 S.W.3d 608, 617

- 18 (Tex. App

— Houston [1 st Dist.] 2009, pet. denied). The Evidence Investigator Felicia Hickerson testifie d that the Department received an intake in 2018 , whi ch alleged that the parents were arg uing in the home and law enforcement found drugs in the home when they respo n ded to the disturbance

. Law enforcement arrested J.C. According to Hickerson, four child r en were involved at the time: N.W., 4 A.C., A.M., and C.C. Hickerson stated S.C. tested p ositive for methamphetamine on an instant drug test, but denied using

. Hick erson testified that the maternal grandmother was present and likewise tested positive on a drug test. She stated law enforcement had to be call ed to prevent S.C. from leaving with the children. The following day, S.C. tested positive for methamphetamine o n a urinalysis and h air follicle drug test and J.C. tested positive for methamphetamine on an oral swab drug test. J.C. admitted to using metham phetamine but claimed S.C. did not know about the drugs in the home or his drug use. Hickerson testified A.M., A

. C., and C.C. each t ested positive for methamphetamine. J.C. admitted using methamphetamin e when the case began and us ing methamphetamine on the property but denied using it “insi de the dwelling

. ” He admitted to smoking methamphetamine “with the little gl a ss thing.” J.C. de nied that the meth amphetamine and pipes found in his bedroom belonged to him or S.C. and claimed they belonged to someone el se; however, he denied that someone else us ed methamphetamine in the home. Instead, he claimed someone kept meth a mphetamine and pipe s in his house without his knowledge , admitted this person had been around the children , and claimed he later discovered the person was selling methamp hetamine. When asked to confirm that he admitted to an officer that he owned the pipes, J.C. replied : “That’s hearsay.” J.C. admitted being arrested and incarcerated for “righ t under 90 days” but was not convicted. J.C. further admitted the children teste d positiv e for methamphetamine, “[p]robably” due to him and S.C. using the drug and t h e children being

4 N.W. turned eighteen roughly five months into the 2020 case.8 co ntaminated. J.C. acknowledged this was an unsafe environment for the c hildren and he was not a fit parent. S.C. admitted s he and J.C. both us ed meth amphetami ne in 2018, drugs were found in the home, and the children tested positive. S he claimed to use d rugs outside the home and wh en the children were with J.C., his adult d aughter, or the maternal grandmother. Although S.C. a dmitted the maternal grandm other tes ted positive for methamphetamine , she denied that the grandmother used metha m phetamine. S.C. stated N.W. , her oldest daughter, also babysat “once or twice” while S.C. used methamphetamine in a detached laundry room on the pr operty. S.C. acknowledged she conti nued to test positive in the beginning of the 2018 case , but she and J. C. wo r ked services and the children were returned to them . She completed parenting classes, mental health counseling, an assessment with East Texas C ouncil on Alcohol and Drug Abuse (ET CADA), attended twice weekly drug counseling, participated in individua l and group counseling at the women’s crisis center, and test ed negative. T he children were returned to S.C. in a monitored return in Summer 2019. J .C. admitted test ing positi ve right before the monitored return. He denied relapsing and claimed his medic ation caused a positive test . He later admitted that he “[p]resumably” relapse d

. O n July 1, 2019, he went to rehab in Austin for two weeks and went t o a dual treatment center i n Georgia for “[a]lmost a month.” S.C. admitted “[t]here was talk” of divorc ing J.C. i f he failed to do what he was supposed to do . H owever, she felt J.C. changed, she ne ver filed for divorce, and she never intended to file for divorce

. Investigator Sha wna Dupre e became involved about six months after the children ’s return to S.C. and J

. C. She stated that around July 27, 2020, it was alleged that J.C. and S.C. were using drugs, S.C. lost a lot of weight and had dark teeth , A.C. and C.C. slept until three or four o’clock in the afternoon, and there were concerns S.C. and J.C. were manufac t uring methamphetamine. Dupree went to S.C.’s and J.C.’s home with law enforcement and observed chemicals and hoses present , which the officer n oted were “comp onents of ma king meth

. ” Dupree confirmed there was no evidence of “cooking meth” and methamphetam i ne was not found in the home. W hen Dupree attempted to remove the children, J.C. and S.C. refused to cooperate and law enforcement had to prev ent them from l eaving. O nce the chil dren were in Dupree’s vehicle, N.W. stated, “ I knew they were doing it.

... I a sked them point blank, and they lied to me

. ” N.W. further stated she did not want to b e like S.C. and J.C. Dupree recalled that A.M. agreed wi th9 N.W. and sai d that he kn ew “they were doing it when [S.C.] started losing weight and staying up all night.” D upree stated S.C. was willing to cooperate but J.C. refused. As a result, S.C. and J.C

. were court

- ordered to participate in services on August 13, 2020

. On A ugust 14, S. C., J.C., and C.C. each tested positive for methamphetamine. Dupree stated S.C. and J

. C. denied using and claimed C.C. tested positive due to spending time with the grandmo ther, who smoked methamphetamine. Quest Diagnostics lab m anager Shane Mo rris testifi ed that C .C.’s head hair sample provide d “roughly 90 days’ worth of use

. ” He could no t identify a time period of use from J.C.’s arm hair sample. J.C. claimed S.C.’s and C .C.’s positive tests resulted from contamination by a ran dom third party or from his medicati on because he sweat ed . He believed his test was inconclusive due to a lack o f definite time period. J.C. denied that the testing facility had to take hair from his arm because he shaved his head. But h e admitted shaving his head , allegedly because of lice in the home . However, the children’s heads were not shaved. J.C. acknowled g ed that shaving one’s head is a method for avoid ing a drug test but that he shaved his head “way before” the Department came to his house. Alth ough J.C. did not agree wit h the tes t results , he did not go to any other testing facilities because they used t h e same lab. When asked to clarify whether he had a problem with the collection facilit y or the lab, he stated he did not “want to go where any of the CPS has been before

. ” While J .C. agreed paranoia i s a side effect of methamphetamine use , he denied being paranoid. S.C. testified she did nothing to justify having the children removed in 20 20. She acknowledged that she, J.C., and C.C. tested posi tive on ha ir follicle tests but deni ed using drugs and claimed their urinalyses were negative. J.C. also denied a ny responsibility for the removal. Char Williams, CASA volunteer since 2018, testifie d she believed S.C. and J.C. were using drugs again in 20 20. S.C. admitted having a drug pro blem in 2018 but denied using any drugs since then . S.C. did not dispute any of her positive drug tests from 2018 through 2019. She admitted testing positive for a mphetamine and methamphetamine on August 14, 2020, but di sagreed wit h the results. S .C. stated that she tested negative on a self

- administered hair follicle
test on Octo b er 7, 2020 . She admitted being ordered to submit to drug tests prior to October and be ing asked to drug test regularly. But she chose not to dr ug test for the Department and, inste ad, “chose to pursue” her own testing. S.C. admitted fail ing to submit to t h e Department’s court

-10 ordered drug test on May 31, 2022, but claimed she paid for her o wn. She also admitted fail ing to submit to the court

- orde red drug tes t on June 23, 2 022, despi te the ability to choose from several testing sites. S.C. claimed involve m e nt in AA/NA. But she had not attended AA/NA for a month or more and did not recall the last time she attended. S.C. further claimed involvement in an online sobriety grou p but had not participated in “a while.” Although she “used to talk quite a bit” with her sister, an AA sponsor, S.C.’s sister was not her sponsor. When asked whether usin g drugs around or while raising her children constituted a form of abuse or neglect, S.C. stat ed: “I would absolutely agree that anyone who uses drugs around kids and wh a tnot is not

-- you know, that’s not the best thing to do around your kids, you know. I t’s not

-- it’s not okay.” She further stated she would n o longer tolerate drug use around the children, as drugs were part of her past. When asked whether it was in the children’s best interest to be in a home where the parents used methamphetamine, she s tated: “[I]t’s never a good idea to put children in a hom e where any drugs are prese nt, not ev en marijuana.” S.C. agreed using drugs while raising children was not good p arenting, “[e]specially not if the drugs impair you to the point where you can’t care for your children.” At the time of trial, J.C. denied he and S.C. were using drugs. J.C. admi tted having a problem with methamphetamine for three months before the 2018 case began but claimed he did not use “every single day.” A lthough he “might have trie d it or something” a long time ago, he did not have an is sue with drugs prior to 201 8. J.C. cl aimed he had not used drugs since his release from rehab in 2019 and blamed his August 2020 positive drug test on his medication. When asked if he provided his pr escriptions to the medical review officer, J.C. offered v arious explanations from th e review o fficer did not return his call, he was told to call the Department , Dupree t old him it was not necessary , and he provided his list of medications to the Departmen t

. J.C. represented taking fifteen drug tests since Augu st 2020 but admitted he may not have
gone to the facility identified by the Department. He claimed that he and S

. C. tested negative on
every self

- administered test. He admitted fail ing to submit to t he June 23, 2022, court

- ordered drug test , stating that “ [ t]he Judge didn’t have jur isdiction over the case” and had no right to order him to drug test. He later stated: “Why would we take a drug test? That’s just...entrapment

. ”11 J.C. claimed he attended AA/ NA “[a]t least 100 times” between 2020 and 2022 and compl e ted the 12 steps at his tr eatment ce nter “last year”. But he could not identify the program’s first or second s teps. He had not physically attended AA/NA in “a long time” but claimed to attend onli ne three weeks prior

. H e could not identify the name of t h e online group. No r did he have a sp onsor. On November 6, 2021, S.C. and J.C. took A.C. and C.C. from their pa t ernal aunt in a parking lot, threatened the aunt, and refused to return the children. The paternal aunt reported J.C. threatened to “blow away ” the judge, attorneys, and caseworke r. The paternal grandmother reported being threatened by J.C. J.C. was loca t ed at his residence and stated that S.C. fled with the children and he told her to do what she needed to keep them

. H e refused to provide thei r location. After an extens ive search by the Department, police department, and sheriff’s office, S.C. and the c h ildren were located at an RV park. S.C. claimed she and J.C. took the children because they were being abused in the paternal aunt’s care. Law enforcement noted S.C.
appe ared disor iented and spoke rapidly. S.C. and J.C. were arrested on July 1, 2022, in M ontgomery County for felony possess ion of a controlled substance. A traffic stop was c onducted on suspicion of fake temporary license plates; J .C. was driving, with S.C. as a passe nger. J.C. had several active warrants and was noted to be armed and danger o us. The vehicle was towed, as the V IN on the plates and the vehicle did not match, the vehicle had no insurance or registration, and J.C. had n o valid driver’s license. A n inventor y of the vehicle revealed torch lighters, butane bottles, a glass bong, two glass pipes commonly used to smoke methamphetamine and which contained a burnt crystal

- like residue consistent with narcotics, and 4.8 grams of methamphetamine. The repor t reflecte d S.C. behaved erratically, “rambled on,” and claimed she was set up by a f r iend, while J.C. denied knowledge

o f the methamphetamine and claimed a friend placed i t in the vehicle. Officers noted S.C.’s and J.C.’s storie s seemed rehearsed. Officer s believed S.C. and J.C. were both using narcotics and knew the drugs were in the veh i cle. S.C. admitted she and J.C. we re arrested for possession of a controlled substanc e but invoked her Fifth Amendment right in response to fu rther questioning about the incident. J.C. admitted the vehicle had two sets of temporary plates. He first denie d know ing whether the vehicle was re gistered , but then admitted it was not. He also cla imed to have a driver’s license. J.C. admitted there was no insurance on the vehicle but claim ed it was insured at the time of trial,12 despite its remaining impounded. He also acknowledged that officers fou nd drug paraphernalia in the vehicle. When asked wh ether he was arrested for possession of methamphetamine i n July 2022, he asserted th e Fifth Am endment

. S.C. testified they lived in a house on Sheridan when the 2018 in v estigation opened but were in the p rocess of moving to a house on Royall. She stated t hey spent “maybe one night” at the house on Royall. After the children ’s remov al in 2018, she stayed with her sister in Montgomery County for about three months while J. C . was incarcerated for “[c]hild abu se or whatever

. ” S.C. subsequently agreed J.C. was incarcerated for endangering a child. After J.C.’s releas e from jail, he and S.C. re nted a cab in at the Bar S Ranch in Elkhart where they stayed for about three months b e fore moving to a new home on Hamilt on in March 2019. A fter he returned from drug treat ment in August 2019, J.C. moved back to the Bar S Ranch b y himself before being allo wed to mov e back in with S.C. S.C. and J.C. lived at the Hamilton address when the 20 1 8 case was closed in December 2019 or January 2020 and when the July 2020 case was
ope ned. S.C. testified that after the 2020 removal and “[t] he landlord got wind of the CPS case and the meth lab,” they were formally evicted and moved to a County Road ad d ress

. But t hey had to leave the County Road residence because someone reported to the Social Security Administration that J.C. was using and de aling drugs, “and got his c heck stopp ed.” On April 13, 2022, J.C. reported to police that he was homeless

. J.C. d enied claiming to be homeless . S.C. stated they lived in her mother’s RV for about a m onth b efore moving to Debard Street shortly before trial

. She testified that the Deb ard home w as a two

- bedroom, one

- bath home, in which they intended to stay long

- term. H owever, J.C. testified he did not intend to stay because he wanted something “more sta ble

. ” He claimed to be in the process of buying land and planned to build a home him self. S.C . testified that the vehicle they had earlier in the case was stolen and sh e and J.C. sold their truck. S.C. and J.C. claimed they had transportation but acknowle dged the vehicle they were driving when arrested in Montg omery County remained impou nded. S.C . work ed as a server at El Toro and at a call center but quit working in ea r ly 2020. S he then worked for TeleTech Services for about three months but quit in Janu ary 2021. She had not been employed since that time . J.C. testified he and S.C. were not emplo yed but he received $1500 monthly in disability income. J.C. claimed he and S.C. sent thousands of dollars to the13 maternal aunt to help with the children. When asked where he got the money, he testified he “had a settle ment before due to an injur y.” In res ponse to whether he and S.C. sold drugs to make money, J.C. stated: “Do you? I mean, w hy would you ask me that?” Analysis The jury could have considered and given great weight to the evidence of J.C.’s and S.C.’s patter n of irresponsible choices such as on going instability , drug use, failure to drug test, and being arrested. See In re J.O.A. , 283 S.W.3d at 336, 346 (Tex. 2009) ; In re S.I.H. , No. 02

- 11-00489- CV, 2012 WL 858643, at *5 (Tex. App.

— Fort Worth Mar. 15, 2012, no pet.) (mem. op.). In addition, the jury was per mitted to find that J.C.’s and S.C.’s conduct would subject the children to a life of uncertainty and instability, which endangers their physical and emotional well -being. See In Interest of A.R.O. , 556 S.W.3d 903, 911

- 12 (Tex. A pp.— El Paso 2018, no pet.). Finally, the trial court could have considered the evidence of J.C.’s and S.C.’s dru g use to support an endangerment finding. See In re S.D. , 980 S.W.2d 758, 763 (Tex. App.

— San Antonio 1998, pet. denied). After reviewing the evi dence in the light most fav orable to the judgment, we hold that a reasonable factfinder could have formed a firm belief or conviction that S.C. and J.C. knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endange red their physical or emoti onal well

- being and that they engaged in conduct or knowingly placed the children wit h persons who engaged in conduct that endangered the children ’ s physical or emotional well -being. See T EX

. F AM

. C ODE A NN . § 161.001(b)(1)(D), (E ). Therefore, we hold that the eviden ce is legally and factually sufficient to support termination of J.C.’s and S.C.’s parental rights under subsections (D) and (E) of Texas Family Code Section 161.001(b). Accordingly, we overrule S.C.’s ninth issue and J.C.’s sole issue.

B EST I NT EREST In her tenth issue, S.C. urges the evidence is factually insufficient to suppo r t a finding that termination of her parental rights is in the c hildren’s best interest. Applicable Law In determining the best interest of the child, a number of facto rs have be en considered, including (1) the desires of the child; (2) the emotional an d 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) the14 parenta l abilities of the individual s seeking custody; (5) the programs available to assist these individuals ; (6) the pl a ns for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent

- child relationship is not a
prop er one; and (9) any excuse for the acts or omissions of the par ent. Holley v . Adams , 544 S.W.2d 367, 371-72 (Tex. 1976). The family code als o provides a list of factors that we will consider in conjunction with the ab ove-mentioned Holley factors. See T EX

. F AM

. C ODE A NN

. § 263.307(b) (West 2019). These include (1) the child ’ s age a nd physical and mental vulnerabilities; (2) the magnitude, frequ ency, and circumstances of the harm to the child; (3) the results of psychiatric, psychological, or develo pmental ev aluations of the child, the child ’ s parents, other family members, or other s who have access to the child ’ s home; (4) whether there is a history of substance abuse by the child ’ s family or others who have access to th e child ’ s home; (5) the willi ngness and ability of the child ’ s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency ’ s close supervision; (6) the willingness and ability of the child ’ s famil y to effect positive environm ental and personal changes within a reasonable period of time; (7) whethe r the child ’s family demonstrates adequate parenting skills; and (8) whether an adequate social support system consisting of an extended family and friend s is available to the child. See id

. §263.307(b)(1), (3), (6), (8), (10), (11), (12), (13). The eviden ce need not p rove all statutory or Holley factors in order to show that termi nation of parental rights is in a child ’ s best interest. See Holley , 544 S.W.2d at 372; In re J.I.T.P. , 99 S.W.3d 841, 848 (Tex. App.

– Houston [14 th Dist.] 2003, no pet.). In other words, the b est interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors. In re D.M. , 58 S.W.3d 801 , 814 (Tex. App.

— Fort Worth 2001, no pet.)

. Undisputed evidence of just one factor may be sufficient in a particular case to support a fin ding that te r mination is in the child ’ s best interest. In re M.R.J.M. , 280 S.W.3d 494, 507 (Tex. App.— Fort Worth 2009, no pet.)

. But the presence of scant evidence relevant to each factor will not support such a finding. Id

. Evidenc e supporting termination of parental rights is also probative i n determinin g whether termination is in the best interest of the child. See In re C.H. , 89 S.W.3d at 28-29. We apply the statutory and Holley factors belo w. Analysis15 At the time of t rial, A.C. and C.C. were ages eleven and nine years old, respectively. When asked if the children said where they wanted to live, Department investigator Damond Dannaldson stated that while the children love S.C., they were ha ppy and thriv ing in their pla cement. He testified that although A.C. “at one point” expressed a des ire to return t o S.C., at their age, the children were not capable of making that decision. Lee Brown , a Court Appointed Special Advocate (CASA) caseworker, testified th e children were “very vuln erable” and smart, but “they love [S.C. and J.C.] and can be influenced by t hem.” Notably, when Department investigator Latoya Higgins was asked if the children wanted to return to S.C., she stated the children never spoke to her about S.C. and t he childre n ’s foster parent testified C.C. did not “seem to be sad abou t” being remov e d from S.C. As discussed above, the evidence reflect s that S.C. endangered the children by causing them to test positive for methamphetamine and subjecti ng them to her o wn drug us e, incarceration, and instability. Hickerson stated that the drug use in t h e home and the children testing positive for methamphetamine significantly impaired the children’s physical health or emotional development a nd endangered their physical or emotion al welfare. Furthermore , S.C. admitted she exposed the childr en to drug use and further admitted it was “never a good idea to put children in a home where any drugs are present

. ” Similarly, Brown related, “A parent t hat tests pos itive for meth c annot be t he best parent for that child.” The evidence at trial showed that t he chil d ren were doing very well and thriving with their foster parent , who met their emotional and physical needs, provided stability , had good
pare nting abilit ies , and facilita t ed siblin g contact. The children are involved in c hurch and extracurri cular activiti e s, C.C.’s grades have improved , and the children are in counseling. Notably, S.C. testified they “love[d]” their foster parent , who had “ been a blessing to” the children. Two fami lies were interested in adopting both children, including one in the matern a l aunt’s neighborhood and one next door to the foster parent . The foster parent’s neighbor , who was familiar with the children, provided res pite care several times, assi sted with facilitating sibling visits, adopted C.C.’s best friend, and was licensed t o adopt

. If adopted by the neighbor, the children would continue in the same school and have a continued relationship with their
current fost er parent. The foster parent testified the neighbor’s property had a nice playground, a “GaGa pit”, goats and chic k ens, and the families worked together and were “very passionate16 about making sure that [C.C.] and [A.C.] have stability, consistency.” Sh e te stified the family would allo w sibling contact to continue , provide A.C. and C.C. a stable home , and meet the children ’ s p hysical and emotional needs, which she stated was in their best interest. Higgins testified S.C. had not demonstrated an ability to prov ide a safe environment and it was in the ch ildren’s best interest to terminate her parental right s. Similarly, Dannald s on testified it was in the children’s best interest that S.C.’s parental rights be terminated, as S.C. and J.C. demonstrated “over time that they are not willing to make the sacri fices needed to keep their children safe” or stop usin g drugs and had not d e monstrated even a desire to do so. He testified S.C. and J.C. could not offer a stable home environment due to moving several times and havi ng the children re

- removed “f or the sam e exact thing” after achieving reunification just
mont hs before, would not m eet the children’s emotional and physical needs, and, instead, posed an emotional or physical danger to the children. Dannaldson agreed t hat if S.C. retained parental rig hts she wo uld continue to interfere in the children’s lives, whi ch had already shown t o be detrimental to the children. Moreover, Williams , testified termination and adoption was in the children’s best interest based on S. C.’s and J.C.’s refusal to drug t est, failu re to cooperate, removal of the children without permi ssion, and drug arres t s. Similarly, Brown testified he supported termination, as the children needed a safe and stable environment, which S.C. and J.C. could n ot p rovide. In contrast, S.C. tes tified she planned to attend Co l lin Community College to become a paralegal, started a nonprofit organization to promote legislative reform and help women in domestic violence situations, and held a toy drive last year. She tes tified it was in A.C. ’s and C .C.’s best interest to return to her and J.C. and she claimed th eir current residence had space for the children, a big backyard, and was in the Palestine school district. However, S.C. admitted they had only lived in their cur rent residence for a couple w eeks and wh ile she claimed they intended to stay long

- term, J.C. testified to the opp o site because he wanted something “more stable.” Moreover, S.C. admitted she quit her job a month or two after the Department dismissed the 20 18 case, she held a job for a bout three months at the end of 2020 but quit in Janua ry 2021 ,
a nd she had not held a job s ince. The evidence further reflects their car was stolen, they sold their truck, and the vehicle they were driving when they were arrested th e month before trial remained impounded.17 Reviewing the evidence under the appropr iate standards, we conclude tha t a reasonable trier of fact could have formed a firm belief or conviction that termination of S.C. ’s parental rights was in the children’s be st interest. See T EX

. F AM

. C O DE A NN . § 161.001(b)(2). Accordingly, we overrule S.C. ’s te nth issue.

R IGHT TO C OUNS EL In her first , second, third, and fourth issues, S.C. contends she was denied her right to appointed counsel and, as a result , denied due p rocess. S.C. submitted her a pplication for a court

- appointed attorney on September 4, 2 020. A ttorney Jeff Coe was appointed to represent S.C. on September 9. On September 18, the court substituted attorney Jeff Herrington for Mr. Coe. On January 12, 2021, Mr. Herrington filed a motio n to withdr aw , which was granted on January 21. On April 29, attorney Jonathon Storme n t filed a notice of appearance on behalf of S.C. On August 23, Mr. Storment filed a motion to withdraw. S.C. represented herself at the initi al jury trial in February 2022. On Febr uary 18, 2022, appellate counsel Colin D. Mc Fall was appointed to represen t S.C. On March 25, Mr. McFall filed a motion for new trial based, in part, on S.C.’s right to be represented by counsel. On May 31, said motion was heard and granted by t he court an d attorney Scott Nicholson was appointed to repr esent S.C. Mr. Nicholson represented S.C. thereafter and at the second jury trial in August. On October 11, S.C. declined the appointment of appellate counsel. S.C. la ter raised th e issue of her l ack of appointed counsel to the trial court. The trial

cou rt remedied the error by gr ant ing a new trial and appoint ing new counsel

. Because the trial
court re solved the issue of which S.C. now complains , these four issues are moot and S.C. fai ls to demonstrate how she suffered harm as a result. See Nat’l Collegiate Athletic Assoc. v . Jones , 1 S.W.3d 83, 86 (Tex. 1999); T EX

. R. A PP

. P. 44.1 (a). We overrule S.C.’s first, second, third and fourth issue s.

R EMAINING I SSUE S An appellate brief must cont ain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. T EX

. R. A PP

. P. 38.1(i). Although we are to liberally construe pro se briefs, pro se litigants are held to the same stand ards as license d18 attorneys and must comply with all applicable rules of procedure; otherwise, pro se litigants would have an unfair advantage over parties represented by counsel. Muhammed v. Plains Pipeline, L.P. , No. 12 -16-00189- CV, 2017 WL 2665180, at *2 n.3 (Tex. App.

— Tyler June 21, 2017, no pet.) (mem. op.); Giddens v. Brooks , 92 S.W.3d 878, 880

- 81 ( T ex. App. —Beaumont 2002, pet. denied). Specifically, pro se litigants must comply with the rule requiring adequate briefing and citations to the record. Red mond v. Kovar , No. 09 -17-00099- CV, 2018 WL 651272, at *2 (Tex. App.

— Beaumont Fe b. 1, 2018, no pet.) ( mem. op.). Bare assertions of error, without argument or authority, waive error and present nothing for review on appeal. McKellar v. Cervantes , 367 S.W.3d 478, 484 n.5 (Tex. App. —T exarkana 2012, no pet.); Washington v. Bank of N.Y. , 362 S.W.3d 853, 854 ( T ex. App.

— Dallas 2012, no pet.). The appellate court has no duty to brief issues for an appellant, and if we were to do so, “we would be abandoning our role as neutral adjudicators a nd become an advocate for that party.” In re A.E. , 580 S.W.3d 211, 219 (Tex. App.—Tyler 2019, pet. denied). S.C. lists several other issues in her brief, including issues six, seven, and eight. These include purp orted challenges regarding cons ervatorship , ineffective assistance, an inappropriate transfer o f the case, visitatio n , and administration of medication to the children. However, S.C. provides no record citations, legal authority , or analysis to support th ese issues. And the body of th e brief nev er mentions or discusses these issues outside her “st atement of issues.” W e have no duty to brief issues on S.C.’s behalf. We conclude that S.C.’s remaining issues are inadequately briefed and therefore waived. See T EX

. R. A PP

. P. 38.1(i); Mu hammed , 2017 WL 2665180, at *2 n.3; Redmond , 2018 WL 651272, at *2; McKellar , 367 S.W

. 3d at 484 n.5; Washington , 362 S.W.3d at 854; Giddens , 92 S.W.3d at 880 -81 ; see Interest of I.G

. , No. 12 -21-00068- CV, 2022 WL 175662, at *4 (Tex. App.—Tyler Jan. 19, 2022, pet. denied) (mem. op.).

D ISPOSITION Having overruled S.C. ’s first, second, third, f o urth, fifth, ninth and tenth issues, overruled J.C.’s only issue , and concluded that S.C. waived her remaining issues , we affirm the tria l court’s judgment. B RIAN H OYLE J ustice Opinion delivered March 22, 2023. Panel consisted of Worthen, C.J., Hoyle, J., an d Neeley, J.19 

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 22, 2023

NO. 12-22-00277- CV

IN THE INTEREST OF A. M., A. C. & A.C., CHILDRE N

Appe al from the 369th District Cou rt of Anderson County, Texas (Tr.Ct.No. DCCV22 -3393-369) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no er ror in the judgment. It is therefore ORDERED, ADJUD GED and DECREED that the judgment of the court below be in all things affirmed , and that this decision be certified to the court below for observance. Brian Hoyle, Jus tice

. Panel consisted of Worthen, C.J ., Hoyl e, J., and Neeley, J.