### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00274
- CV

L. R. J. M., Appellant

v. Texas Department of Family and Protective Services, Appellee

FROM THE 207TH DISTRICT COURT OF HAYS COUNTY NO. 19
- 1159, THE HONORABLE DAVID JUNKIN, JUD GE PRESIDING

M E M O R A N D U M O P I N I O N
L.R.J.M. ( “ Mother ” ) appea ls from the trial court ’ s order terminating her parental rights to her daughter, “ Cara , ” who wa s born in April 2017. 1 As explained bel ow, we will

re form the trial court ’ s ord er o f t erminat ion and, as reformed, affirm the order.

FACTUAL AND PROCEDURAL SUMMARY In May 2019, the Te xas Department of Family and Protecti ve Services filed a petition seeking conservatorship of Cara . The affidavit of removal explained that in March 2 0 19, maternal grandmother “ Wanda ” had gon e to visit Mother, Fa ther, and Cara at the ir residence, which consisted of two recreationa l vehicles (RVs)

. A house was on the property, but the allegation stated that “ the parents do not always have access to ente r th e residence. ” T he RVs

1 For the s ake of the child ’ s privac y a nd fo r c lar ity, w e r e fer to t he parents a s “ Mother ” and “ Father ” and to the chi l d ren a nd other s involved by pse udonyms

. See Tex. F am. Code § 109 .002 (d ) ; Tex. R. A pp. P. 9.8

.2

had no plu mbing , the ir toilets were clog ged, “ [b]uckets were used in place of toilets and the waste [was] thrown outside, ” and two

- year - old Cara “ was allowed to run around naked so that she can go to the bat hroom as she please d. ” Wi th Mother ’ s permission, Wanda t ook Cara home

w ith her for about a month. In late April , Father demanded Cara ’ s return , and t wo days later, the
De partment received a report that Mother, Father, and the pat ernal grandparents were abu sing drugs , somet ime s in front of Cara . The repo rt sai d that all four were “ using and snorting op iates ” and smoking marijuana , that Mother was also abusing cocaine , and that the grandparents were allegedly selling prescription drugs from the home

. The report further alle ged tha t Moth er “ has been observed hit ting and physically ab using [Cara] in the past , ” that Mother had th rown a bottle

a t th e child , and that Cara “ has been abused with bruising on her body. ”

A Department investigator found the family living in a small R V t hat wa s “ dirty and unke mpt with bags of trash located next to the p lay [pen ]. ” T he RV had electricity and a television but no running water or toilet, and the property around the RV “ had discarded wood crates, a couch, a broken fan, a washing ma chine or d ryer and a toilet with a bla ck bag stuff ed in it with the lid down. ” Wh en the i nvestigator spoke to Mother, she admitted that the RV had no runni ng water and “ had a mice problem

. ” She also admitted that she smoked marijuana but said it was not while Cara was present. F ather told t he inv estigator that Mother had th rown a bottle at Cara, “ causing bru ises ” on the child. He s aid that th ey slept in the RV because it ha d electri city , that they used the house to shower and cook, and that they no long er use d th e la rger trailer because it was not hooked up to the s ept ic system

. The investigator stated th at he believed Cara was in danger because of drug use by the parents, alleged physical abuse by bo t h parents, and an unsafe physical environment , which he said w as “ not fit for someone her age

. ”3 In mid

- May 2019, t he trial court signed an order permitt ing the Department to remove Cara from her parents ’ care . In February 2020, the trial court signed an order finding that Father had demon strated ad equate compl ianc e wi th the safety plan and ordering t ha t Cara be placed back in his care. The court found that Mother had not made adequate progress and ordered that she could not have visitation until she started to engage in services and obtained approval from Cara ’ s C ourt

- A ppointed Special Advocate (CASA).

A f inal hearing was held in April 2020

. 2 T he Department presented testimony by Department c as e wo rker Will O ’ Bri e n, an d a brief oral “ r eport ” of the CASA ’ s opinion

. Mother di d not appear at the hearing, a nd her atto rney said that she had not ha d contact with Mother since the February 2020 hearing. The Department also introduced into evidence Mother ’ s July 2019 fami ly service plan , a Status Hearing Order from July 2019 , and records related to Mother ’ s conv iction in O ctober 2019 for possession of a dangerous drug

.

O ’ Br i e n testi fied that he had been the caseworker since November, about five months before the hearing. H e explained that the Department had sought c onservatorship because of “a report that ther e were unsa fe living cond itions ” and an e nsuing investigation tha t showed that Cara “was living in a trailer, which was

— there ’ s hazardous material laying around.
T her e wasn ’ t running water. It was unsanitary. It was unclean. ” He also noted allegations of physi cal abuse by M o ther and drug use by both M o ther a nd Father. O ’ Brie n said Father had

“ successfully addressed all of the Department ’ s concerns, ” demonstr ated skills learned through
hi s required service s , tested ne gative for drugs throughout the proceeding a fte r a n initial positive test for marijuana, and obtained employment and sa fe and stable housing. Cara was “ d oing very,

2 The trial was held via video c on ference due to COVID

- 19

. See Second A men ded Emergency Order Regarding COVI D

- 19, Travis County Civil & Fam ily Co urts, Adm in. File No

. GN

- 61

- 1 21012, signed and fil ed May 7, 2020.4

very well ” with Father and app eared to be well bonded to him. She “ cling[s] to Dad and she ’ s
very ha ppy to be with him. ” She smiles a nd i s happy to see him . When asked if she feels safe with Father, Cara indicated she does and gave “ very big smiles

. ” O ’ Brien had “ no concerns with how she is doing ” with Father and did not believe Cara would nee d the rapy in the fu ture : “ To my know led ge, sh e i s doing very well. I don ’ t see therapy as necessary. ” O ’ Brien said Mother and Father were no longer in a re lationship; that they had very little contact; and that Mother had reached out to Father “ a few times , ” “ strictly just for checking in on ” Ca ra. He said that if Father was named sole managing conservator and M other ’ s parental rights were terminated, he trusted that Father would not allow Mother access to Cara.

As for M other , O ’ Brien testified that she had not complied with the court

- ordered

ser vi ce plan , which included requirements that she maintain safe and stable housing ; abstain from drug use, criminal activity, and domestic violence ; writ e a plan explain in g “ how she intends
t o provide for her family ’ s n e eds as well as a budget ”; seek temp ora ry public assistance to ensure that she could meet her and Cara ’ s basic needs ; complete a p rotective parenting class and a nurturing parenting class ; com plete a drug and alcohol assess ment; sub mit to random drug testing; p articipate in AA or NA meetings ; c omplet e a psychological evaluation ; follow all recommendations from the evaluation ; and i nform the Department of her address, any arrests, any new relationships, and the like. O ’ Brien said Mother had not kept in contact with t he Department or informed it of h er address , comp leted a drug and alcohol assessment, or completed either of the required parenting class es . She fai led to t ake any drug test s except one negative hair follicle test in F ebruary 2020 and did not provide proof that she had attended an y A A or NA meetings

. O ’ Brie n also said that Mother did not devel op a written budget, o btain safe and stable housing, or seek temporary public assistance or other financial help

.5 O ’ Brien testified that when he was as signed to the cas e , his “ number one pr ior ity was getting [Mother] into an in

- patient ” program. At that time, Mother was “ in a re hab facility ” that “ did not qualify as an in

- patient , ” so O ’ Brie n referred her to an in

- pa tient program . S he started that prog ram in January 2020 but only “ remained th ere for about two and a half weeks before she was kicked out ” “ for roughh ousing and hitting another pa tient. ” O ’ Brie n testified that Mother was homeless for a while an d then entered a women ’ s sh elter , but she was again kicked
out “ because of

— accordin g to [ the shelter ]

— fa lsifying to MHMR ” 3 and trying to sn eak a man into her room. O ’ Brien said , “ I do not know where [Mother] has been since , ” and testified that
t he last time he had contact with her was at the Febr uary 2020 permanency hearin g . Mother di d

n ot have a phone , and O ’ Brien thus could only conta ct he r through her case manager or through
t he shelters in which she was placed

. O ’ B rien testified that “ as soon as she would leave a placement, she would be AW OL for me. ”

O ’ Brien testi fied that Mother h ad not had contact with Cara since his assign ment to the case

. In addition, Mother had only h ad two visits before O ’ Brien ’ s assignment and had

“ not ma de active e fforts to be involved in visitation

. ” O ’ Brien was asked i f Mother had ever

c alled “to ask t o spe ak to ” Cara, and he said she had . He also explained that he had made plans for Cara to visit Mother at her in

- patient program, “ but that very week was the week that she was unsuccessfully discharged ” from the program.

O ’ B rien said th a t he had conce rn s a bout Mother ’ s mental health . However, he admitted, nothing “ can be validated because she never went in for a psychological evaluatio n. ”

3 MHMR stan ds for “ Mental Health and Mental Reta rdation ” and refers to or ganizations that provide mental

- health services. See , e.g . , Texas Home Mgmt., I nc. v. Peavy , 89 S.W.3d 30, 32 (Tex. 2002) ; Parsons v. St ate , No. 03

- 19

- 00742

- CR, 2020 WL 5099951, at *5 (Tex. App.

— Austin Aug. 28, 2020 , no pet. h. ) (mem. op. , not designat ed for publication )

.6

H is concerns arose from “ the way that she would com municate. She seemed a little bit delusional at times and ver y s po radic. So, I have my personal conce rns, but nothing that I can professionally verify

. ”

O ’ B rien concluded his te stimony by stat ing that he did not believe Mother had demonstrated an ability to provide Cara with a safe environment . He explained :

M y co n cerns for [Mother ] are the very conc erns that brought her into this case; maybe with a few additional. As I ’ ve spent time on this case, originally it was that she has not demonstrated that she can be a safe an d protective parent in an y capacity. Re g ardi n g her drug use; regarding being able to determine if she was physically abusive to her daughter. We have allegations of her hitting her daughter and throwing a water bottle at her daughter. And we ’ ve not been able to have any of this ev aluated. We have personal concerns about her mental h ealth, which we have not been able to evaluate because of the lack of a psychological evaluation. And I

— I do have concerns, which may have been alleviated in a nurturing pare nting class, of her being a nurturing pa r ent. To me, she not only has not complet ed any services, but has not completed what I feel is a bare minimum to show that she would care enough for her daughter to make any substantial change. So, any of the origi nal concerns, really, have only been hei g hten e d with a lack of any diligence in th is case. Which was the hazardous living conditions [sic]

. She has n ot had safe and stable housing. The drug use, which we ’ ve not been able to verify throughout this case. And also the physical abuse.

O ’ Brien fu rthe r testified that he b elieved it was in Cara ’ s best in terest for Mother ’ s rights to be terminated b ecause :

[ Mother ] has n ot been able to demonstrate that she is safe and protective, she has not been able to, in a ny way, validat e that she can be a protec tive parent and non

abusi ve around [Cara] in the fu ture. I don ’ t believe that she has warranted any rights to her child after the duration of this case. With again, not demonstrating being safe and protective; and second of all, I would claim not being n urtu r ing and caring for h er daughter by putting her daughter ’ s needs first above her own

.7 The CASA provided a n oral report about her conclusions about Car a ’ s best interests. She said that Father had “ worked ver y diligently” to obtain housing and to sa tisfy the service plan ’ s requirements , that t her e was a “ very strong bond ” between Father and Cara, and that “ she does just want to be next to him. ” The CASA agreed that Mother ’ s rights should be termi nated because :

She has not demonstrated that she has a ny de s ire to be a parent. You know, I think she actually tried to enter in

- patient on three different occasions, and they were all failed attempts. I did get the opportunity to speak to her at the last court heari ng. She was

— she was fine with [Cara] goi ng wi t h her father. She had no concerns of him being able to, you know, care, you know, for

— for her daughter. So, I ’ m in support with the Department ’ s proposal of termination of Mom ’ s rights and sole managing cons ervatorship to Dad.

A fter the hearing, t he tr ial court signed an o rder finding by clear and convincing evidence that statutory grounds for termination existed and that termination of Mother ’ s parental rights was in Cara ’ s best interest

. See Tex. Fam. Co de § 161.001( b)(1 ) (D) , (E), (N), (O) , (2)

.
DI S CUSSION On appeal, Moth er primarily attacks the trial court ’ s best

- interest determination. She contends that “ [t] he entirety of the best interest testimony elicited by questioning of [ the Department ] at t rial amounted to a mere 92 words , ” pointing to O ’ B rien ’ s statement that he thought Mother ’ s parental rights shoul d be terminated because she had not demonstrate d “ that she is safe and protective, ” that she had not shown that she can be protective and “ non - abusive ”
to Cara , and that she had not put Cara ’ s needs abo ve her own. However , although O ’ Brien was
not as ked to explain his conclusions any f urther, his opinion was more fully explained i n his other testimony

— concerns that Mother had not completed a psy chological evaluation , despite8

O ’ Brien ’ s concern s that s he sometimes seem ed “ d elusional ” or “ sporadic ” ; her inability or unwillingness to complete a treatment program, including being kicked out of an in

- patient
pr ogram and a shelter for breaking the facilities ’ rul es; he r inability to obtain safe and s ta ble housing ; her failure to maintain contact with the Department; her lack of contact with Cara, caused pri marily by her failure to make progress on her service plan; her failure to take drugs
t ests throughout the pr o ceeding e xcept for one test taken abo ut two months befo re the final hearing ; and her ove rall failure to make any substantive progress on her safety plan, to ma int ain a relationship with Cara, or to show herself willin g to place Cara ’ s needs before her own

. The CASA reported similar ly , opini n g that Mot he r had not shown an interest in being a respon sible, safe parent for Car a and sa ying that Mother was content for Cara to rem ain with Father

.

We consider a trial court ’ s finding on b est interest in li ght of the fa cto rs set out in
H oll ey v. Adam s : the child ’ s wis he s , i f appropriate given the child ’ s age; her em o tional and physical needs now and in the future ; present and f utur e emoti onal or physic al danger posed to the child ; t he parentin g skills of those see king custody ; any prog ra ms available t o as sist tho se

s e e ki ng custody to promote the child ’ s best in t erest ; plans for the child ’ s futu re ; the stability of the h ome or prop osed placement ; conduct by the parent that might show that the parent

- child relationsh ip is inappropri at e ; and any excuses f or the par e n t ’ s c o nduct. 544 S.W.2d 367, 371

- 7 2 (Tex. 1976)

. The Holley factors are not e xhaustive, not all factors must be p roved, and a lack o f evide nce about some of the factors does not “ preclude a factfind er fro m rea sonably for mi ng a strong convic ti on or beli e f t hat termination is in the child ’ s best interest, particularly if the evidenc e were undisputed that the paren tal r elation ship endange red the saf ety of the child. ” In re
C.H. , 89 S.W.3d 17, 27 (Tex. 2002)

.9 T here w as sufficient evidenc e from wh ich the trial court could have reached a firm conviction as to it s best

- interest determination. And c ontra ry to Mother ’ s assertion , the record does not indicate t hat Cara was removed because of her parents ’ poverty

. Cara was not

remov ed because the fam il y lived in a small trailer but because the RV lacked pl u mbing and running water, was unsanitary (including bags of trash sitting next to the play pen) , and was surrounded by dangerous debris. In addition, there were allegations that Mother and Father
po se d a dan ger to Cara in the form of p hy sical abuse , a dangerous living situation, and drug use. Mother did not take steps to address those concerns , such as by taking either required parenting class , seeking assi sta nc e that wo uld allow her to secure a saf e l iving environment, complet ing a drug and alcohol assessment , taking requested drug tests, or completing a psy chological evaluation and following any recommendations. Mother was kicked out of at least on e in

- pa tient
program and out of the wom en ’ s shelte r , both times due to her unwillingness or inab ility to follow the facility ’ s rules. S he did not maintain contact with th e Department , did not make efforts to be able to have visitation with Cara, and did not prep are the plan and budget that might indicate an ability to care for Cara

. F inally , she did not maintain contact with her lawyer after the February 2020 hearing or app ear fo r the final hearing

.

Father work ed through his require d services , tested negative for dr ug use, obtained employment , and obta ine d a safe place for C ara and himself to live. Although the Department did not introduce any evidence about four

- year - old Cara ’ s wishes, evidence showed that she was bonded with Father and felt happy and saf e in his c are. See P.C. v. Texas Dep ’ t of
Fam

. & Protective Servs ., No. 0 3

- 16

- 00784

- CV, 2017 WL 2062270, at *2 (Tex. App.

— Austin May 10, 2017 , no pet.) (mem. op. ) ( when child is too young to express desires, court s may consider quality and extent of child ’ s relati onship with proposed placement s ); see als o In re10

D.A.B. , No. 04

- 1 9

- 00629

- CV, 2020 WL 1036433, at *7 (Tex. App.

— San Antonio Mar. 4, 2020 , no pet.) (mem. op. ) ( “ When a child is too young to exp ress her desires

— as D.A.B., who was three years old at t he time of trial, is

— the trial court may consid er that the child has bonde d with the foster family, is well cared for by them, and has spent minimal time with the paren t. ”)

.

Mother asserts that the fact that O ’ Brien did not believe that Cara would need
t herapy and was “ fin e ” living with Father means tha t Cara ’ s emotional and p hysical needs in the future should be considered neutral or e ven in Mother ’ s favor . She makes a simi lar argument as
to any danger posed to Cara now and in the future , arguing that b ecause Cara had been placed with Father , who no lo nger had a relationship with Mother , the factor “ at worst i s neutral , and perhaps more reasonably, wei ghs in favor of preservation of [Mo ther ’ s ] parental rights. ” However, we conclude that the trial court could reasonably have found that t hese fa ctors we ig h in favor of termination because the evidence indic ated that Mother cou ld not meet Cara ’ s emotional and physical needs and c ould pose a danger to Car a i n the fu ture because of Mother ’ s failure to obtain a s table living environment , learn be tter parent ing skills, and address any mental health concerns. The fact th a t Mother di d not seek physical custody of Cara does not preclude the trial court fro m c onsider ing whether she might pose a danger to Cara now or in the future or whether she could meet Cara ’ s nee ds now or in the future.

Mother also argues that we should weigh n eutrally or in her favor the factor related to programs available to assist her in prom o t ing Cara ’ s bes t interest because of evidence that she had “ at the very least, accessed one cou rse of ‘ rehab ’ treatment ” and that there was

“ subst antiated interaction ” with MHMR . However, the only reference to MHMR was O ’ Brien ’ s statement that Mother was kicked out of the w omen ’ s shelter , in part, f or “ fa lsifying to MHMR

. ” There is no e xpla nation in th e record about what that means, much less whether it means Mother11

h ad any meaningful contact with MHMR . Further, the evidence shows that Mother was kicked out of the in

- patient program because of her rule

- breaking , did not seek public assistance, did not take parenting classes, and did not complete a psyc h ological evalua tion. This fac tor , therefor e, weighs square ly in favor of termination.

As for Mother ’ s parenti ng skills, the only evidence in the record weighs against her

. Mother was alleged to h ave t hrown a bottle at Cara , and she admitted to the Department investigat or that she used marijuana, although not in Ca ra ’ s presenc e . Mother did not take parentin g classes that might have weigh ed favorabl y on this factor , had only two visitations du ring the a lmost tw o years Cara was in the Department ’ s care , and had a t hird planned visit

c anceled because she was kick ed ou t of the in

- patient program the wee k the vi sit was s c heduled. Further, M o ther ’ s lack of progress with her require d services meant she h ad alm ost no contact with Cara for two years of the child ’ s four years of life.

Mother did not present evidence about her plans for Cara, as compared to the Department ’ s plan to terminate her pare n tal rights and have Father named sole managing
conservato r. Gi ven the absence of information about Mother ’ s current situation, mu ch less her plans if she retain ed her parental rights, and considering the Department ’ s p lanned placement with Father, a comp arison of plans weigh s sl ightly in favor of t ermination. Finall y, Mother presented no evidence a bout her living situation, whether or why she was homeless , whether she was employed , or why she had allowe d Cara to live in a dirty, dangerous envi ronment at the time of re moval . We thus have no evidence to weigh in her f avor when considering any excuses for her conduct and circumstances

.

T his record includes evi dence that Mother had abused Cara , allowed her to live in a danger ous physical environment , was a rrested for and convicted of possession of a dangerous12

dru g whil e the case was pending , was at times homeless, was kicked out of an in

- patient program and a shelter for breaking rules , sought little contact with her daughter , failed to complete th e required services on her service plan, and did not maintain conta ct wit h th e Department or her own attorney ; ther e fore no evidence weigh ed in Mother ’ s favor

. See In re A.C. , 394 S.W.3d 633, 643 (Tex. App.

— Houston [1st Dist.] 2012 , no pet. )

. We hold th at the evidence is sufficient to support th e trial court ’ s finding t hat te rmination of Mother ’ s parental rights was in Cara ’ s best interest

. See, e.g. , In re L.A.M. , 545 S.W.3d 579, 586 (Tex. App.

— El Paso 2016 , no pet. ) ( although m other ’ s circumstances we re not entirely “ of her own making, ” there was evidence she had enda ngered child in past and might do so in future , mother did not take advantage of offere d
programs , and her future plans were “ too uncertain to require the trial court to find that she can provide stability and financial support for the child ” ). We overrul e Moth er ’ s challenge t o the
court ’ s determination of best interest

.

Mother also compl ains that although the Department requested termination only under paragraphs (N) and (O) , the trial court also found grounds un der parag ra phs (D) and (E )

. 4
We sustai n this co mplaint. The reporter ’ s record indi cates that the Department a rgued only that
ter mination was proper under (N) and (O ) , asserting as support that Mother “ has not completed any of her court ordered services; she has failed to complete i n - p atient a s order ed ; and she ’ s really not done anything in this case to

— to warrant her being the parent to this child. ” Father ’ s attorney agreed that “ the (o) grounds and the (n) grounds be what

— the grounds that she ’ s terminated on ” and asked that Father be appoint ed Cara ’ s sole managing conservator. The

4 Mother ’ s brief recites that her “ sole issue ” was challenging the best

- interest determination

. However, the last two pages of her brief argue th is issue, set out under its own heading. Further, Mother ’ s pr ayer section include s a general request f or all relief to which she is entitled. Th us, a lthough the Department ’ s brief does not address it , t he issue is fairly before us .13

Department thus did not seek termination based on the (D) and (E) grounds a t tr ial , and it w as error for the trial court to find that Mother ’ s rights should b e terminated under the (D) and (E ) grounds as well. Because par a graphs (D) and (E ) ca n have co llateral effects on Mother ’ s relationships with children she might have in the f uture, see Tex . Fa m. Code § 161.001(b) (1) (M) ( pro viding as statutory ground that paren t had her rights to anot her child terminated “ based on a
fi nding that the pa rent ’ s conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law o f another state ” ) , w e reform the order to delete the court ’ s findings of grounds under paragraphs ( D) and (E).

CON CLU SION We have overrul ed Mot her ’ s c hallenge to the trial court ’ s finding of best interest.
B ecause at trial the Department limited its re qu est for termination to paragraphs (N) and (O) , we reform the trial court ’ s order of termination to delete its finding s of statutory grounds under
parag raphs (D ) and (E). W e affi rm the trial court ’ s order as ref ormed.

__________________________________________ Jeff Ro se , Chie f Justice Before Chief Justi c e Rose, Justices Baker and Kelly Ref ormed and , as R eformed, A ffirmed Filed: October 15, 2020