Opinion issued July 23, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-15-00160-CV

———————————

IN THE INTEREST OF D.L.D., JR., L.L.S., J.J.S., AND H.N.S., 

MINOR CHILDREN

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Case No. 2013-05778J

MEMORANDUM OPINION

Following a bench trial, the trial court signed a judgment terminating the 

parent–child relationship between J.T.D. (“Mother”) and her four minor children: 
2

D.L.D., L.L.S., J.J.S. and H.N.S.1 On appeal, Mother presents two issues. She

claims that the evidence was not legally or factually sufficient to support the trial 

court’s judgment, and she alleges that the trial court engaged in misconduct during 

trial.

We affirm.

Background

On October 18, 2013, the Department of Family and Protective Services 

(“the Department”) filed suit in Montgomery County, requesting the trial court to 

issue temporary orders appointing the Department the temporary sole managing 

conservator of D.L.D., L.L.S., J.J.S. and H.N.S. If family reunification could not 

be achieved, the Department sought to terminate Mother’s parental rights to her

children. The Department offered the affidavit of its authorized representative, 

Amy Loggins, to support its petition.

In her affidavit, Loggins stated that, on July 4, 2013, the Department 

received a report of “neglectful supervision” by Mother of four-year-old D.L.D. 

Mother and her four children, ranging in age from one year to five years old, were 

living in the Montgomery County Women’s Shelter. The report alleged that 

D.L.D. was being “touched inappropriately” by his cousin. The report also alleged 

 

1

The judgment also terminated the parent–child relationship between L.L.S., J.J.S. 

and H.N.S. and their respective fathers. However, the fathers do not appeal the 

judgment. 
3

that Mother was aware of the touching, but had “failed to make adequate efforts to 

ensure D.L.D.’s safety.” 

On July 5, 2013, Loggins went to the shelter to investigate and spoke with 

Mother. Mother told Loggins that her children were not subject to sexual abuse 

and were adequately supervised. Loggins learned that Mother had come to live at 

the shelter after Mother and Mother’s sister were “kicked out” of another shelter 

for fighting.

Loggins learned that each child had a different father. Mother did not know 

how to locate any of the fathers but stated that “they live somewhere in Louisiana.” 

Loggins also spoke to D.L.D. Loggins stated that D.L.D. made no outcry of 

sexual abuse to her, and Loggins observed that D.L.D. had no unusual marks or 

bruises. Loggins also did not observe any marks or bruises on the three younger 

children. 

Loggins indicated in the affidavit that the Department had received a second 

report of “neglectful supervision” on July 13, 2013, regarding all four children. 

The report stated that “the children were accessible to their aunt, who place[s] the 

children at substantial risk of harm due to inadequate supervision and sexual 

abuse.” The report also stated that Mother allowed the aunt to have access to the 

children “despite concerns related to sexual abuse.” 
4

Loggins further stated in the affidavit that, on July 17, 2013, she received a 

telephone call from a staff member at the women’s shelter where Mother and the 

children were staying. The staff person informed Loggins that Mother “would be 

asked to leave the shelter today for having too many violations while living at the 

shelter.” The staff person stated that she “would not have a place for [Mother] and 

her four children to live.” 

That same day, Loggins went to the shelter and spoke with Mother, who 

stated that she was being “forced out of the shelter and she did not know where she 

would live.” Mother told Loggins that she did not have an alternative placement 

for the children. Loggins concluded the affidavit by stating the Department sought 

to be named the children’s temporary managing conservator because Mother was 

unable to “to provide a stable home and [an] appropriate caregiver for her 

children.” 

The Department was appointed temporary managing conservator of the 

children, and the children were placed in foster care. In August 2013, Mother 

signed and agreed to follow a family service plan. The family service plan 

indicated that Mother was not able to provide her four children with a safe and 

stable environment. She and the children had been living in homeless shelters; 

however, the family had been evicted from two shelters because Mother violated 

the shelters’ rules by fighting with her sister, who also lived at the shelters. Mother 
5

had been both “a victim and perpetrator of domestic violence with her sister.” The 

plan stated that Mother’s four children “are exposed to family arguments, bullying, 

name calling, and physical fights.” The service plan further stated, “While the 

sisters have remained together, their relationship has become one of bickering and 

violence toward one another. Their children have become the center of this verbal 

and physical lifestyle. It is difficult to protect children when the lifestyle involves 

violence and issues of insecurity and indecision.” 

The service plan also indicated that “[t]wo of the children have medical 

needs that have not been resolved, each of which will involve a form of surgery.” 

The youngest child, H.N.S., required leg braces, but Mother had stated that “she 

did not go back to the doctor to get [the braces].”

The plan set out several tasks and services for Mother to complete before she 

would be reunited with her children. The service plan required Mother to complete 

the following tasks and services: (1) participate in parenting classes; (2) attend 

weekly therapy; (3) maintain contact with her children “on a regular basis to 

promote/maintain bonding and attachment”; (4) develop a support system of 

family and friends and “to utilize community available resources to benefit her 

family”; (5) submit to random drug screenings “to ensure that she is maintaining a

drug-free lifestyle”; (6) submit to psychological testing; (7) refrain from engaging 

in illegal activities; (8) contact the caseworker on a monthly basis; (9) maintain 
6

safe housing; (10) stop associating or communicating with people engaging in selfdestructive behaviors; and (11) maintain stable employment and provide her 

caseworker with bi-weekly income statements.

The family service plan warned Mother as follows:

This is a very important document. Its purpose is to help you provide 

your child with a safe environment within the reasonable period 

specified in the plan. If you are unwilling or unable to provide your 

child with a safe environment, your parental and custodial duties and 

rights may be restricted or terminated or your child may not be

returned to you. There will be a court hearing at which a judge will 

review this service plan.

The trial court conducted a status hearing on September 11, 2013. Mother 

and her court-appointed counsel attended the hearing. The trial court signed an

order, approving the family service plan. The order stated that Mother had 

reviewed the service plan and had signed it.

Mother moved to Harris County, and the case was transferred to that county 

in October 2013. During the pendency of the case, the trial court held permanency 

hearings and signed orders that also approved the service plan. 

The case was tried to the bench, beginning on November 11, 2014. D.L.D.’s 

father testified on that date, but then trial was recessed for two months. Trial 

resumed and concluded on January 20, 2015. 

At trial, the Department presented evidence showing that, while the case was 

pending, Mother failed to obtain housing or employment, tested for cocaine, failed 
7

to undergo all scheduled drug screenings, was convicted of the offense of 

prostitution, did not attend all scheduled visits with her children, and failed to keep 

in contact with the Department’s caseworker. The evidence also showed that the 

oldest child, D.L.D., had been living with his father since July 2014. D.L.D. was 

doing well in his father’s care. The evidence further showed that the three younger 

children were also progressing and doing well in their foster placement. 

After the trial concluded, the trial court rendered judgment terminating the 

parent–child relationship between Mother and her four children. The trial court

found that clear and convincing evidence showed (1) Mother had knowingly 

placed or allowed the children to remain in conditions or surroundings that 

endangered their physical or emotional well-being; (2) Mother had engaged in 

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

that endangered their physical or emotional well-being; (3) Mother had failed to 

comply with the provisions of a court order that specifically established the actions 

necessary for her to obtain the return of the children; and (4) termination of her 

parental rights was in the children’s best interest.2 The trial court appointed the 

 

2

See Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 

161.001(1)(D),(E),(O), (2), 1997 Gen. Tex. Laws 2012, 2015, amended by Act of 

Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.078, sec. 

161.001(b)(1)(D),(E),(O), (b)(2) (West, Westlaw through 2015 R. Sess.). We note 

that the recent amendment to section 161.001 does not affect the resolution of 

Mother’s appeal; however, the subsections have been renumbered.
8

Department as the sole managing conservator of the three youngest children. 

D.L.D.’s father was named his sole managing conservator.

This appeal followed. Mother now raises two issues.

Sufficiency of the Evidence

In her second issue, Mother asserts that the evidence was legally and 

factually insufficient to support the trial court’s finding that termination of the 

parent–child relationship was in the children’s best interest. Mother does not 

challenge the other findings of the trial court.

A. Standard of Review

Termination of parental rights requires proof by clear and convincing 

evidence. Act of May 19, 1997, 75th Leg., R.S., ch. 575, § 9, sec. 161.001(1), 

1997 Gen. Tex. Laws 2012, 2015 (amended 2015); In re J.F.C., 96 S.W.3d 256, 

263 (Tex. 2002). This heightened standard of review is mandated not only by the 

Family Code but also by the Due Process Clause of the United States Constitution. 

In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); see also Santosky v. Kramer, 455 

U.S. 745, 753–54, 102 S. Ct. 1388, 1394–95 (1982) (recognizing fundamental 

liberty interest parent has in his or her child and concluding that state must provide 

parent with fundamentally fair procedures, including clear and convincing 

evidentiary standard, when seeking to terminate parental rights). The Family Code 

defines clear and convincing evidence as “the measure or degree of proof that will 
9

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 

(Vernon 2014); J.F.C., 96 S.W.3d at 264. Here, the Department was required to 

establish, by clear and convincing evidence, that Mother’s actions satisfied one of 

the grounds listed in former Family Code section 161.001(1) and that termination 

was in the children’s best interest. See Act of May 19, 1997, 75th Leg., R.S., ch. 

575, § 9, sec. 161.001(1), (2), 1997 Gen. Tex. Laws 2012, 2015 (amended 2015).

When determining legal sufficiency, we review all the evidence in the light 

most favorable to the finding “to determine whether a reasonable trier of fact could 

have formed a firm belief or conviction that its finding was true.” J.F.C., 96 

S.W.3d at 266. To give appropriate deference to the fact finder’s conclusions, we 

must assume that the fact finder resolved disputed facts in favor of its finding if a 

reasonable fact finder could do so. Id. We disregard all evidence that a reasonable 

fact finder could have disbelieved or found to have been incredible. Id. This does 

not mean that we must disregard all evidence that does not support the finding. Id.

The disregard of undisputed facts that do not support the finding could skew the 

analysis of whether there is clear and convincing evidence. Id. Therefore, in 

conducting a legal-sufficiency review in a parental-termination case, we must 

consider all of the evidence, not only that which favors the verdict. See City of 

Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).
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In determining a factual-sufficiency point, the higher burden of proof in 

termination cases also alters the appellate standard of review. In re C.H., 89 

S.W.3d 17, 25–26 (Tex. 2002). “[A] finding that must be based on clear and 

convincing evidence cannot be viewed on appeal the same as one that may be 

sustained on a mere preponderance.” Id. at 25. In considering whether evidence 

rises to the level of being clear and convincing, we must consider whether the 

evidence is sufficient to reasonably form in the mind of the fact finder a firm belief 

or conviction as to the truth of the allegation sought to be established. Id. We 

consider whether disputed evidence is such that a reasonable fact finder could not 

have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 

266. “If, in light of the entire record, the disputed evidence that a reasonable 

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

finder could not reasonably have formed a firm belief or conviction, then the 

evidence is factually insufficient.” Id.

We give due deference to the fact finder’s findings, and we cannot substitute 

our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 

(Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and 

demeanor of witnesses. Id. at 109.

We are mindful that the natural rights that exist between parents and their 

children are of constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 
11

1985). Therefore, termination proceedings should be strictly scrutinized, and the 

involuntary termination statutes should be strictly construed in favor of the parent. 

Id. at 20–21; see also In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). However, 

“[j]ust as it is imperative for courts to recognize the constitutional underpinnings of 

the parent–child relationship, it is also essential that emotional and physical 

interests of the child not be sacrificed merely to preserve that right.” C.H., 89 

S.W.3d at 26; see also In re E.C.R., 402 S.W.3d 239, 240 (Tex. 2013).

B. Best Interest of the Children

1. Applicable Legal Principles

There is a strong presumption that the best interest of the child will be 

served by preserving the parent–child relationship. See In re R.R., 209 S.W.3d 

112, 116 (Tex. 2006). Prompt and permanent placement of the child in a safe 

environment is also presumed to be in the child’s best interest. TEX. FAM. CODE 

ANN. § 263.307(a) (West, Westlaw through 2015 R. Sess.).3 Among others, the 

following factors should be considered in evaluating the parent’s willingness and 

ability to provide the child with a safe environment: (1) the child’s age and 

physical and mental vulnerabilities; (2) the frequency and nature of out-of-home 

 

3

The Texas Legislature recently amended Family Code section 263.307. See Act of 

Mar. 30, 2015, 84th Leg., R.S., S.B. 219, art. 1, § 1.181, sec. 263.307 (West, 

Westlaw through 2015 R. Sess.). However, the revisions to the statute were minor 

and did not change the statutory language cited herein. Nor did the amendment

affect the numbering of the statutory provisions. Thus, we cite to the current 

version of the statute.
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placements; (3) the magnitude, frequency, and circumstances of harm to the child; 

(4) whether there is a history of substance abuse by the child’s family or others that 

have access to the child’s home; (5) the willingness 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 family to effect positive environmental and personal changes 

within a reasonable period of time; (7) whether the child’s family demonstrates 

adequate parenting skills, including providing the child and other children under 

the family’s care with minimally adequate health and nutritional care, guidance 

and supervision, and a safe physical home environment; and (8) whether an 

adequate social support system consisting of an extended family and friends is 

available to the child. Id. § 263.307(b); R.R., 209 S.W.3d at 116. 

The Supreme Court of Texas has set out some additional factors that courts 

may consider when determining the best interest of the child, including: (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 parental abilities of the individual 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
13

that 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). This is not an exhaustive list, and a court need 

not have evidence on every element listed in order to make a valid finding as to the 

child’s best interest. C.H., 89 S.W.3d at 27. While no one factor is controlling, 

analysis of a single factor may be adequate in a particular factual situation to 

support a finding that termination is in the best interest of the child. See In re A.P., 

184 S.W.3d 410, 414 (Tex. App.—Dallas 2006, no pet.).

The evidence supporting the statutory grounds for termination may also be 

used to support a finding that the best interest of the child warrants termination of 

the parent–child relationship. C.H., 89 S.W.3d at 28; In re H.D., No. 01–12–

00007–CV, 2013 WL 1928799, at *13 (Tex. App.—Houston [1st Dist.] May 9, 

2013, no pet.). Furthermore, in conducting the best-interest analysis, a court may 

consider not only direct evidence but also may consider circumstantial evidence, 

subjective factors, and the totality of the evidence. See H.D., 2013 WL 1928799, 

at *13.

2. Analysis

At trial, the Department presented evidence showing that Mother had been

unable to provide her children with a stable home in the past and was still unable to 

do so at the time of trial. The family service plan, admitted into evidence, 
14

indicated that Mother and her four children were evicted from the women’s shelter 

in July 2013 because Mother and her sister had been fighting. Prior to that, she 

and her children had been evicted from another shelter because Mother and her 

sister had been fighting. At trial, Mother acknowledged that she had been evicted 

from the last shelter for arguing with her sister. 

The evidence showed that, during the 18 months the case was pending, 

Mother still had not found housing. The Department’s caseworker, John Gregory, 

testified at trial on January 20, 2015. He stated that Mother had not provided him 

with the address where she was living, although required to do so by the service 

plan. Instead, she had told him two or three times that she was living with “a 

friend.” Gregory also testified that, starting in October 2014 when he was assigned 

to the case, he had given information to Mother regarding how to obtain housing. 

He stated that he had provided Mother with the contact information for HUD and 

had instructed her to get on the waiting list for housing. Mother had never 

provided proof to Gregory showing that she had contacted HUD or found housing.

At trial, Mother agreed that she did not have a safe and stable place to live. 

However, she testified that she had applied with HUD on January 6, only two 

weeks before trial, to be placed on a waiting list for housing. She acknowledged 

that, at that time, her children had already been in foster care for over one year. 
15

Gregory testified that Mother also had not demonstrated that she had been 

seeking employment. Gregory stated that Mother told him that she would not 

apply for a job at a fast food restaurant because she needed a better income to 

support her four children. Gregory testified that he had informed Mother that she 

needed to make an effort to find work to demonstrate to the court that she was 

attempting to find employment. Seeking employment was also a requirement of

the service plan. Gregory testified that he had provided Mother with resources to 

find a job; however, she had not taken advantage of these resources. 

At trial, Mother testified that it was difficult for her to find a job because she 

has dyslexia. See Holley, 544 S.W.2d at 371–72 (listing as best–interest factor:

any excuse for the acts or omissions of the parent). She also testified that she was

self-employed. Mother stated that she was in “sewing school” and was working to 

create a website to start her own business. Mother stated that she was working to 

get her business “off the ground” but did not know how long that would take. 

In short, the evidence showed that Mother had not provided proof to the 

Department that she had sought housing or employment during the 18 months the 

case had been pending, despite the fact that the Department had provided her with 

job and housing resources. In re J.M., No. 01–14–00826–CV, 2015 WL 1020316, 

at *7 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.) (mem. op.) (stating 

courts may consider the willingness and ability of the child’s family to effect 
16

positive environmental and personal changes within a reasonable period of time). 

“A parent who lacks stability, income, and a home is unable to provide for a 

child’s emotional and physical needs.” In re J.R.W., No. 14–12–00850–CV, 2013 

WL 507325, at *9 (Tex. App.—Houston [14th Dist.] Feb. 12, 2013, pet. denied) 

(mem. op.). We conclude that the evidence regarding Mother’s housing instability 

and lack of employment is supportive of termination under the following Holley

factors: the emotional and physical needs of the children now and in the future; the 

emotional and physical danger to the children now and in the future; the plans for 

the children by these individuals or by the agency seeking custody; and the 

stability of the home or proposed placement. See Holley, 544 S.W.2d at 371–72.

In addition, Gregory testified that Mother had “completed parenting classes, 

a psychiatric evaluation, a psychological evaluation, and five sessions of individual 

counseling”; but, she had failed to complete the other court-ordered tasks required 

in the service plan. Mother testified that she was unable to complete all of the 

required services because she did not have money for transportation. See id. 

(listing as best–interest factor: any excuse for the acts or omissions of the parent). 

Nonetheless, a factfinder may infer from a parent’s failure to take the initiative to 

complete the services required to regain possession of her children that she does

not have the ability to motivate herself to seek out available resources needed now 

or in the future. See J.M., 2015 WL 1020316, at *7; see also TEX. FAM. CODE 
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ANN. § 263.307(b)(10) (providing that courts may consider the willingness 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); 

Holley, 544 S.W.2d at 371–72 (listing as factor: parental abilities of individual 

seeking custody and programs available to assist these individuals to promote best 

interest of child as factors to consider).

The evidence further showed that Mother has a history of illegal drug use. 

During the pendency of the case, in September 2014, Mother tested positive for 

cocaine. Mother also failed to participate in other required drug testing requested 

by the Department. Parental drug abuse reflects poor judgment and may be a 

factor to be considered in determining a child’s best interest. See TEX. FAM. CODE 

ANN. § 263.307(b)(8) (providing that courts may consider whether there is history 

of substance abuse by child’s family). A parent’s exercise of poor judgment 

currently and in the past demonstrates an inability to provide adequate care for a

child. See J.M., 2015 WL 1020316, at *7. Parental drug use has been found to be 

a condition indicating instability in the home environment. Id.; see also In re S.B., 

207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (“A parent’s drug 

use, inability to provide a stable home, and failure to comply with his family 

service plan support a finding that termination is in the best interest of the child.”). 
18

The evidence also showed that Mother had pleaded guilty to the offense of 

prostitution in November 2014, two months before trial concluded. Like drug use, 

engaging in criminal conduct is indicative of poor parental judgment and 

instability. Drug abuse and prostitution places the safety and stability of the

children at risk. See In re M.C.H., No. 14–12–00103–CV, 2012 WL 1795123, at 

*4 (Tex. App.—Houston [14th Dist.] May 17, 2012, no pet.) (mem. op.).

Relevant to her parenting abilities, Mother admitted to missing scheduled 

visits with her children. Caseworker Gregory also gave the following testimony 

regarding what he observed during one of Mother’s visits with her children:

[Mother] wanted to take a picture of the children and she had them 

jump up and down and she made the statement I want them to do 

something really retarded so I can take a picture. And also at that 

visit, at the very beginning of the visitation, [D.L.D.] had called his

mom by first name and not by mom. And I had to step in in order to 

correct him when it should be mom that had corrected him and that 

showed a lack of bondage between them.

See Holley, 544 S.W.2d at 371–72 (identifying as factor: parental abilities of 

individual seeking custody and acts or omissions of the parent that may indicate 

that existing parent–child relationship is not a proper one).

At the time of trial, the oldest child, D.L.D., was seven years old. The three 

younger children, L.L.S., J.J.S. and H.N.S., were four, three and two years old, 

respectively. No evidence was presented regarding the desires of the children, 

other than Gregory’s testimony indicating that D.L.D. was happy living with his 
19

father. See id. (identifying desire of the child as best-interest factor). D.L.D.’s 

father testified that D.L.D. had been living with him in Louisiana since July 2014. 

He stated that D.L.D. seldom asked about Mother.

Testimony revealed that all four children were doing much better at the time 

of trial than they had been doing when removed from Mother’s care in July 2013. 

The evidence showed that, when removed from Mother’s care, D.L.D. was not 

potty-trained, even though he was five years old. Caseworker Gregory testified 

that seven-year-old D.L.D. was doing well in his father’s care. See id. (listing as 

best-interest factors: parental abilities of individual seeking custody; plans for child 

by these individuals or by agency seeking custody; and stability of the home or 

proposed placement). The evidence showed that D.L.D. had become potty-trained. 

The evidence further showed that D.L.D. was developmentally on target and was 

doing well in school. 

The evidence also showed that, in the past, D.L.D. had been taking 

psychotropic medication for ADHD and phobias, and he had suffered from 

hallucinations. The evidence at trial showed that D.L.D. had been taken off the 

psychotropic medication by his doctor. The only medication that D.L.D. continued 

to need was allergy medicine. See id. (identifying emotional and physical needs of 

child now and in future as best-interest factor). The evidence further showed that 

D.L.D.’s father was employed at Burger King as a manager. D.L.D.’s father 
20

testified that he would ensure that D.L.D. maintained a relationship with his three 

younger siblings by bringing D.L.D. to visit them in Texas.

The evidence further showed that the three younger children, L.L.S., J.J.S. 

and H.N.S., were placed together in a foster home one month before trial. 

Testimony was presented that the foster family wished to adopt the three children

and that the children had already bonded with the foster family. The evidence 

showed that the children’s communication skills had improved since living with 

the foster family. According to Gregory, the three children had made a “complete 

turnaround” for the better since being with the foster family.

In addition, the evidence showed L.L.S., J.J.S. and H.N.S. each had special 

medical needs. L.L.S. has ongoing speech and hearing problems. Gregory 

testified that L.L.S. needs to be treated by an audiologist. Gregory stated that 

three-year-old J.J.S. “at the beginning . . . was diagnosed with average functioning

and adjustment disorder and he was aggressive.” With respect to the youngest 

child, two-year-old H.N.S, Gregory testified that “she has clubfoot.” H.N.S. also 

has a heart murmur and vision issues. Gregory stated that H.N.S. has been referred 

to an orthopedic surgeon regarding her foot. She has also been referred to an 

ophthalmologist and a cardiologist. Gregory indicated that the current foster 

parents are willing and able to meet the children’s medical, physical, and 

emotional needs. See id. (listing as best-interest factors: emotional and physical 
21

needs of child now and in the future, and plans for child by these individuals or by 

agency seeking custody). 

In her brief, Mother asserts that the evidence was not sufficient to support 

the best-interest finding. Mother claims the evidence showed that the Department 

had “a lack of interest” in reuniting her with her children. She claims that the 

Department provided her with only “a small amount of help” with respect to 

facilitating her completion of the services required for her to regain custody of her 

children. 

Mother acknowledges that Gregory testified that he had provided her with 

resources to help her obtain housing and employment. However, she claims that 

this was only a “minimal” or a “small amount” of help to reunite her with her 

children. She claims that the Department should have provided her more 

assistance to complete her services. She intimates that she would have completed 

all of her services had the Department given her more assistance. Mother points 

out that evidence was presented that she “lacked the funds to complete and attend”

the services. 

Relevant to this argument, Gregory explained that the Department does not 

obtain a job or housing for a parent; rather, the Department provides parents with 

contacts and resources. He stated that it is the parent’s responsibility to find 

housing and employment using those resources. 
22

Gregory testified that, although he provided Mother with job and housing

resources, she did not provide any proof that she had made any attempt to find 

housing or employment using those resources. Mother, however, testified that she 

had applied for employment at fast food restaurants and that she had contacted the 

employment resources provided to her by Gregory. Mother also testified that she 

had contacted HUD regarding housing. 

“It is well established that, in a bench trial, the judge as the trier of fact 

weighs the evidence, assesses the credibility of witnesses and resolves conflicts 

and inconsistencies.” In re D.D.D.K., No. 07–09–0101–CV, 2009 WL 4348760, at 

*6 (Tex. App.—Amarillo Dec. 1, 2009, no pet.) (mem. op.). Here, the trial court 

was free to believe Gregory’s testimony and disbelieve that of Mother, including 

her excuses for not completing the services and her claim that she had applied for 

jobs and for housing. We note that, although Mother claims that the Department 

should have offered her more assistance, she does not explain what additional 

assistance could have been made available to her. Moreover, evidence was 

presented showing that Mother did not take advantage of the resources that were 

made available to her. The trial court could have reasonably inferred that she 

would not have utilized any additional resources had they been provided to her. 

After viewing all of the evidence in the light most favorable to the bestinterest finding, we conclude that the evidence was sufficiently clear and 
23

convincing that a reasonable fact finder could have formed a firm belief or 

conviction that termination of the parent–child relationship between Mother and 

her children was in the children’s best interest. We further conclude that, viewed 

in light of the entire record, any disputed evidence could have been reconciled in 

favor of the trial court’s finding that termination of the parent–child relationship 

between Mother and the children was in the children’s best interest or was not so 

significant that the trial court could not reasonably have formed a firm belief or 

conviction that termination was in the children’s best interest. Therefore, after 

considering the relevant factors under the appropriate standards of review, we hold 

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

that termination of the parent–child relationship is in the children’s best interest.

We overrule Mother’s second issue. 

Trial Court Conduct

In her first issue, Mother claims that the trial court engaged in behavior 

during trial that violated the Texas Code of Judicial Conduct. Specifically, Mother 

frames her issue as follows: “The trial court abused its discretion when it engaged 

in conduct that was prejudicial to the business of the courts, undermines public 

confidence in the judiciary, and creates a strong appearance of impropriety 

resulting in the termination of Appellant’s parental rights.”
24

A. Legal Principles

To reverse a judgment on the ground of judicial misconduct, we must find 

judicial impropriety, i.e., error, coupled with probable prejudice to the complaining 

party, resulting in the rendition of an improper judgment. See Tex. Emp’rs Ins. 

Ass’n. v. Draper, 658 S.W.2d 202, 209 (Tex. App.—Houston [1st Dist.] 1983, no 

writ); see also TEX. R. APP. P. 44.1(a); Silcott v. Oglesby, 721 S.W.2d 290, 293 

(Tex. 1987). In reviewing a “judicial misconduct” complaint, we examine the 

entire record to determine whether the trial court’s conduct harmed the appellant. 

Pitt v. Bradford Farms, 843 S.W.2d 705, 706–07 (Tex. App.—Corpus Christi 

1992, no writ).

B. Analysis

Mother first asserts that the trial court failed to abide by Canon 3B(3) of the 

Texas Code of Judicial Conduct, which provides: “A judge shall require order and 

decorum in proceedings before the judge.” TEX. CODE JUD. CONDUCT, Canon 

3B(3), reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. B (Vernon 2013). 

In support of this assertion, Mother directs us to the following exchange during the 

January 2015 cross-examination of D.L.D.’s father, who is a manager at a Burger 

King in Louisiana, by the appointed counsel for the unknown father: 

[Unknown father’s counsel:] Have you tried the Texas Double 

Whopper yet?
25

[Children’s Attorney Ad Litem:] Objection rel—asked and answered 

actually.

[Unknown father’s counsel:] No. Not since—November he may 

have tried it already.4 Pass the witness.

THE COURT: I’m going to leave you—well, no. You can go.

In her brief, Mother asserts, “This is an example of how the [trial court] 

lacked the ability to control the courtroom and allow silliness to pervade a very 

serious proceeding.” We disagree that this exchange demonstrates that the trial 

court did not require order and decorum during the proceeding. After the attorney 

ad litem objected, the unknown father’s counsel did not pursue the questioning and 

passed the witness. The trial court then released the witness. The complained-of 

exchange was isolated and brief. Because it was self-limiting in duration, the 

exchange did not require the trial court to intervene or take corrective action. 

Mother next claims that the trial court “intentionally disrespected” her in 

violation of Canon 3B(4), which provides: “ A judge shall be patient, dignified and 

courteous to litigants, jurors, witnesses, lawyers and others with whom the judge 

deals in an official capacity, and should require similar conduct of lawyers, and of 

staff, court officials and others subject to the judge’s direction and control.” TEX.

 

4 As mentioned, trial began in November 2014 with the testimony of D.L.D.’s 

father. Trial was recessed and continued until January 2015 at which time 

D.L.D.’s father again testified. The unknown father’s attorney had also asked 

D.L.D.’s father whether he had tried the Texas Double Whopper in November 

2014.
26

CODE JUD. CONDUCT, Canon 3B(4). Mother claims the trial court’s violation of 

Canon 3B(4) occurred during the attorney ad litem’s examination of her:

Q. Have you ever been in jail?

A. No.

Q. And how often do you prostitute?

A. That was only one time.

THE COURT: Well, that’s bad luck, huh?

[Mother]: Uh-huh.

Mother avers that the trial court, in making the “Well, that’s bad luck” 

comment, “lacked sensitivity and dignity.” She claims that the comment was 

“insensitive and disrespectful” to her.

Here, from the written record, we are unable to discern the trial court’s tone

of voice, facial expression, or general demeanor while making the comment. We 

can review the statement only as it appears in the record. Based on the bare 

statement, we cannot ascertain whether the comment was said with sarcasm, as 

Mother intimates, or was said with compassion. Moreover, we note that the 

comment was made during a bench trial; thus, there was no jury to hear it. 

Without more, we will not presume that the comment was improper. 

Mother also asserts that the trial court violated Canons 5 and 6, which 

provide: 

(5) A judge shall perform judicial duties without bias or prejudice.
27

(6) A judge shall not, in the performance of judicial duties, by words 

or conduct manifest bias or prejudice, including but not limited to bias 

or prejudice based upon race, sex, religion, national origin, disability, 

age, sexual orientation or socioeconomic status, and shall not 

knowingly permit staff, court officials and others subject to the 

judge’s direction and control to do so.

TEX. CODE JUD. CONDUCT, Canons 3B(5), (6). 

Mother points to the following exchange, which occurred during the 

Department’s examination of her, to demonstrate that the trial court violated 

Canons 5 and 6:

Q. And you would agree with me that you still don’t have a safe place 

to live as to today?

A. Okay. I was getting to that.

[The Department’s counsel]: Objection. Nonresponse.

[Mother]: Well, can I just -- I do have paperwork.

THE COURT: Shh.

[Mother]: I do have --

[the Department’s counsel]: Shh. Listen.

[Mother]: -- paperwork.

THE COURT: Listen.

[Mother]: And I do have --

THE COURT: Ma’am, listen to me.

[Mother]: Y’all not giving me --
28

THE COURT: Ma’am. Listen to me.

[Mother]: Yes, sir. Yes, sir.

THE COURT: Okay? Just --

[Mother]: Yes, sir.

THE COURT: -- answer the --

[Mother]: Yes, sir. Yes, sir. Yes, sir. I just want to show her that I 

do have --

THE COURT: Shut up.

[Mother]: Oh, help me Jesus.

THE COURT: Just answer her question. Your attorney will --

[Mother]: I’m not --

THE COURT: Listen to me. Your attorney will have an opportunity 

to ask you questions. That’s how this game is placed [sic]. Okay? 

So, if she asks you if you have a safe and stable place to stay right 

now, the answer is yes or no.

A. No.

THE COURT: There you go. You can explain by way of your 

attorney when it’s your turn. Okay?

“Texas courts have held that ‘the discretion vested in the trial court over the 

conduct of a trial is great.’” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.

2001) (quoting Schroeder v. Brandon, 172 S.W.2d 488, 491 (Tex. 1943) and citing

Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston [1st Dist.] 1994, writ 

denied)). A trial court is necessarily allowed discretion in expressing itself while 
29

controlling the trial of a case. Draper, 658 S.W.2d at 209; see Francis, 46 S.W.3d 

at 241. A trial court may properly intervene to maintain control in the courtroom, 

to expedite the trial, and to prevent what it considers to be a waste of time. 

Francis, 46 S.W.3d at 241. 

Here, the record shows that the trial court exercised its broad discretion to 

maintain control over the proceedings. See id. The trial court intervened when 

Mother continued to speak after the Department’s counsel objected to Mother’s 

answer as being unresponsive. The trial court attempted to explain to Mother that 

her counsel would provide her with an opportunity to expound on her answers 

during his questioning of her. However, Mother continued to speak over the trial 

court and to interrupt despite the trial court’s repeated requests to Mother to be 

quiet. Only after the trial court had directed Mother six times to stop speaking did 

it then tell her to “shut up.” Even then, the record shows that Mother continued to 

talk over the trial court. Given Mother’s noncompliance with the trial court’s 

gentler requests to be quiet, we do not agree with Mother that the trial court’s 

conduct was improper or demonstrates any prejudice against her, under the 

circumstances. 

Finally, Mother has not shown that any of the complained-of conduct, on 

which she relies, likely caused the rendition of an improper judgment. See Silcott, 
30

721 S.W.2d at 293; see also TEX. R. APP. P. 44.1(a). Nor does our review of the 

entire record find any harm based on the conduct. See Pitt, 843 S.W.2d at 708.

We overrule Mother’s first issue. 5 

Conclusion

We affirm the judgment of the trial court. 

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

 

5

The Department asserts that Mother waived her first issue because she did not 

object in the trial court to any of the conduct of which she now complains on 

appeal. “[O]bjection to a trial court’s alleged improper conduct or comment must 

be made when it occurs if a party is to preserve error for appellate review, unless 

the conduct or comment cannot be rendered harmless by proper instruction.” Dow 

Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Mother does not explain 

how the complained-of conduct was incurable or why she would be excused from

preserving error. See id. Nevertheless, we have examined the complained-of

conduct in the context of the entire record and conclude that it was neither 

inappropriate nor harmful under the circumstances of this case.