In the Interest of N. N. J., a Child v. the State of Texas

NUMBER 13-25-00017-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF N.N.J., A CHILD

ON APPEAL FROM THE 329TH DISTRICT COURT
OF WHARTON COUNTY, TEXAS

MEMORANDUM OPINION
Before Justices Silva, Peña, and Fonseca
Memorandum Opinion by Justice Peña

Appellant A.J. (Mother) appeals a judgment terminating the parental rights to her

son N.N.J. 1 In two issues, Mother argues that there is legally and factually insufficient

evidence supporting (1) the statutory termination grounds, and (2) that termination was in

the child’s best interest. We affirm.

1 To protect the identity of minor children in an appeal from an order terminating parental rights,

parents and children are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d).
I. BACKGROUND

Appellee, the Department of Family and Protective Services (the Department), filed

a petition seeking to terminate Mother’s parental rights to N.N.J., who was six years old

at the time of trial. The petition was accompanied by an affidavit in support of removal

alleging neglectful supervision. The trial court awarded the Department temporary

managing conservatorship of N.N.J., and the case proceeded to a bench trial, at which

the following evidence was adduced.

Department caseworker Ednika Williams contacted Mother after a report that

Mother was choked by her paramour M.F. in the presence of N.N.J. at a motel in Stafford,

Texas. Mother later stated that M.F. had only pushed her to the floor. Upon contact,

Williams learned that Mother had been shot a few months prior by a drunk friend. Williams

was concerned that Mother did not have a stable environment at the time. Williams

opened a family-based safety services case. Mother refused a hair follicle drug test and

was unable to complete a urinalysis.

Stafford Police Department Sergeant Kristi Melendez responded to the scene

following the domestic violence report. Mother told her that she was staying at the motel

temporarily while N.N.J. had dental work done. Sergeant Melendez was familiar with M.F.

because he was previously involved in a prostitution ring. At that time, M.F. was under

house arrest and had an ankle monitor. Mother stated that M.F. previously made

comments that led her to believe that he was trafficking children, and when Mother asked

M.F. about whether this was happening, he punched her in the face.

A month after the domestic violence report, Williams learned that Mother was

temporarily residing with B.P., whom she described as a family friend, and that Mother

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would have B.P. babysit N.N.J. while she sought employment. According to Sergeant

Melendez, N.N.J. told a sexual assault nurse examiner that B.P. made him “suck his

penis,” touched his penis, and put his finger in his bottom on several occasions. After

receiving the report of sexual abuse, Williams helped Mother find a shelter for her to stay

in with N.N.J.

Department caseworker Kelsey Koenig completed a family strength and needs

assessment with Mother. During this process, Mother indicated a history of domestic

violence with several paramours, including N.N.J.’s alleged father S.M., who was

currently incarcerated. Koenig learned that Mother was diagnosed with ADHD and

depression, for which Mother was not currently receiving treatment. At the time N.N.J.

was removed, Mother threatened to kill Koenig, and Mother was handcuffed and placed

in a patrol car.

Kelcie Jackson was the family’s caseworker after the removal of N.N.J. She stated

that the initial goal for the Department was family reunification. Jackson said that the

Department was concerned that Mother was not able to protect N.N.J. She cited domestic

violence, an unstable home life, and mental health issues as concerning factors. Mother

entered into a family service plan which she substantially completed. Mother began with

supervised visitation, which progressed to unsupervised visits. N.N.J. was initially excited

for the visits, but he later became withdrawn. N.N.J. expressed he was afraid to visit

Mother because of the “people.” Jackson stated that N.N.J. has shown effects from being

exposed to domestic violence. For instance, N.N.J. will flinch when Jackson gets close to

him. N.N.J. has reported that Mother likes to fight and he has seen his Mother fight other

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people. After N.N.J.’s removal, Mother tested positive for marijuana and cocaine. 2 During

a home visit, Mother denied a caseworker access to the bedroom. Jackson stated that

the Department remains concerned about Mother’s history of associating with unknown

males and her unstable employment history. Also, N.N.J. has told Jackson that Mother

lets him play with firearms. N.N.J. recalled an instance where Mother gave him a firearm

to hold while he waited for her in the car.

Jackson stated that N.N.J. wants to stay with his current foster family, but he does

not want to make Mother mad. Jackson stated that he is thriving in his current placement,

and she believes it is in N.N.J.’s best interest that Mother’s parental rights be terminated

so that he can be adopted.

Sarah and Zack Kirk are N.N.J.’s current foster parents. The family has a magnet

board with tasks to accomplish each day. Sarah stated that N.N.J. is tasked with packing

his snack each morning for school. N.N.J. often rides his bike to the nearby school, where

he is currently in first grade. N.N.J. attends weekly play therapy sessions to assist him in

processing his past trauma. Sarah has stated that N.N.J. has been diagnosed with PTSD

and acute stress disorder. N.N.J. has a ptosis in his left eye, which means his vision is

almost fully blocked by his eyelid. This condition will require surgery in the future. Sarah

stated that N.N.J. has regressed as the duration and frequency of his visits with Mother

has increased. She stated that the regression is shown through wetting himself, nausea,

and fatigue. Sarah recalled that N.N.J. would hyperventilate when she washed his hair

because Mother had sent a note indicating that she did not want the Kirks to touch his

2 The trial court admitted the drug testing lab reports as an exhibit.

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hair. N.N.J. described to Sarah an instance where Mother struck him with a belt in the

chest and locked him in a closet that was infested with cockroaches.

Mother testified that she is currently employed and resides at a women’s shelter.

She is saving money so that she can provide a safe residence for N.N.J. Mother

acknowledged past drug use but stated that she is now clean.

The trial court signed an order terminating Mother’s parental rights pursuant to

Texas Family Code § 161.001(b)(1)(D) and (E). See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D), (E). The trial court further found that termination of Mother’s parental

rights was in N.N.J.’s best interests. See id. § 161.001(b)(2). This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review and Applicable Law

Before parental rights may be involuntarily terminated, the trier of fact must find

two elements by clear and convincing evidence: (1) that the parent committed one of the

statutory grounds for termination found in § 161.001(b)(1) of the family code; and (2) that

termination is in the child’s best interest. TEX. FAM. CODE ANN. § 161.001(b); In re E.N.C.,

384 S.W.3d 796, 803 (Tex. 2012).

Because of the fundamental rights at issue, due process requires that parental

termination be supported by clear and convincing evidence. In re S.M.R., 434 S.W.3d

576, 580 (Tex. 2014); In re K.M.L., 443 S.W.3d 101, 112 (Tex. 2014). Clear and

convincing evidence is “the measure or degree of proof that will produce in the mind of

the trier of fact a firm belief or conviction as to the truth of the allegations sought to be

established.” TEX. FAM. CODE ANN. § 101.007; In re J.F.C., 96 S.W.3d 256, 264 (Tex.

2002).

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In parental termination cases, our legal and factual sufficiency standards honor

this elevated burden of proof while respecting the factfinder’s role. In re A.C., 560 S.W.3d

624, 630 (Tex. 2018) (citing In re J.F.C., 96 S.W.3d at 264). “The distinction between

legal and factual sufficiency lies in the extent to which disputed evidence contrary to a

finding may be considered.” Id. In a legal sufficiency review, we “cannot ignore undisputed

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

disputed facts in favor of the finding.” Id. at 630–31 (citing In re J.F.C., 96 S.W.3d at 266).

Thus, “[e]vidence is legally sufficient if, viewing all the evidence in the light most favorable

to the fact-finding and considering undisputed contrary evidence, a reasonable factfinder

could form a firm belief or conviction that the finding was true.” Id. at 631 (citing In re

J.F.C., 96 S.W.3d at 266).

Factual sufficiency, on the other hand, requires us to weigh disputed evidence

contrary to the finding against all the evidence favoring the finding. Id. We “must consider

whether disputed evidence is such that a reasonable factfinder could not have resolved

it in favor of the finding.” Id. (citing In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006)).

Therefore, “[e]vidence is factually insufficient if, in light of the entire record, the disputed

evidence a reasonable factfinder could not have credited in favor of a finding is so

significant that the factfinder could not have formed a firm belief or conviction that the

finding was true.” Id. (citing In re J.F.C., 96 S.W.3d at 266).

B. Statutory Grounds

In her first issue, Mother argues there is legally and factually insufficient evidence

supporting each termination ground.

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Subsection 161.001(b)(1)(D) allows termination when the evidence proves by

clear and convincing evidence that the parent knowingly placed or knowingly allowed the

child to remain in conditions or surroundings which endanger the child’s physical or

emotional well-being, and subsection 161.001(b)(1)(E) allows termination if the parent

has engaged in conduct, or knowingly placed the child with persons who engage in

conduct, which endangers the child’s physical or emotional well-being. TEX. FAM. CODE

ANN. § 161.001(b)(1)(D), (E). “Subsection (D) addresses the child’s surroundings and

environment rather than parental misconduct, which is the subject of subsection (E).” In

re A.L.H., 624 S.W.3d 47, 56 (Tex. App.—El Paso 2021, no pet.) (quoting In re B.C.S.,

479 S.W.3d 918, 926 (Tex. App.—El Paso 2015, no pet.)). Subsection (D) permits

termination based on only a single act or omission. In re V.A., 598 S.W.3d 317, 329 (Tex.

App.—Houston [14th Dist.] 2020, pet. denied). In contrast, subsection (E) requires

evidence of a “voluntary, deliberate, and conscious course of conduct by the parent” and

generally more than a single act or omission. In re D.L.W.W., 617 S.W.3d 64, 78 (Tex.

App.—Houston [1st Dist.] 2020, no pet.) (quoting In re J.T.G., 121 S.W.3d 117, 125 (Tex.

App.—Fort Worth 2003, no pet.)).

“For both of these provisions, ‘endanger’ means ‘to expose to loss or injury; to

jeopardize.’” Id. (quoting In re M.C., 917 S.W.2d 268, 269 (Tex. 1996)). “Although

‘endanger’ means more than a threat of metaphysical injury or the possible ill effects of a

less-than-ideal family environment, it is not necessary that the conduct be directed at the

child or that the child actually suffers injury.” Id. “It is enough if the youth is exposed to

loss or injury or his physical or emotional well-being is jeopardized.” Id. (quoting In re

P.E.W., 105 S.W.3d 771, 777 (Tex. App.—Amarillo 2003, no pet.)). “As a general rule,

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conduct that subjects a child to a life of uncertainty and instability endangers the physical

and emotional well[-]being of a child.” In re S.A., 665 S.W.3d 59, 70 (Tex. App.—Tyler

2022, pet. denied) (first citing In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort

Worth 2009, no pet.); and then citing In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort

Worth 2004, pet. denied)).

The Department initially removed N.N.J. due to concerns that Mother was unable

to protect the child from harm. The evidence at trial reflects that while Mother completed

services offered by the Department, concerns remained regarding her ability to provide a

safe and stable environment for N.N.J. First, Mother had yet to find permanent housing

at the time of trial. A parent’s “[f]ailure to maintain stability endangers the child’s physical

and emotional well-being.” In re S.R., 452 S.W.3d 351, 362 (Tex. App.—Houston [14th

Dist.] 2014, pet. denied). N.N.J.’s foster mother recalled that following visitations with

Mother, N.N.J. would wet himself, have stomach aches, show fatigue, and would

hyperventilate. Prior to removal, Mother exposed N.N.J. to domestic violence and left

N.N.J. with someone who allegedly sexually abused N.N.J. Mother also associated with

a person who was known to run a prostitution ring and had been under house arrest.

“[I]t is beyond question that sexual abuse is conduct that endangers a child’s

physical or emotional well-being.” In re R.W., 129 S.W.3d 732, 742–43 (Tex. App.—Fort

Worth 2004, pet. denied) (quoting In re R.G., 61 S.W.3d 661, 667 (Tex. App.—Waco

2001, no pet.), disapproved of on other grounds, 96 S.W.3d 256 (Tex. 2002)); see In re

G.M., 649 S.W.3d 801, 809 (Tex. App.—El Paso 2022, no pet.). Further, “[d]omestic

violence, want of self-control, and propensity for violence may be considered as evidence

of endangerment.” In re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.]

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2014, pet. denied) (quoting In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th

Dist.] 2003, no pet.)). Additionally, Mother endangered N.N.J. when she left him alone

with a loaded firearm. See In re K.C.B., 280 S.W.3d 888, 896 (Tex. App.—Amarillo 2009,

pet. denied) (noting that the presence of unsecured weapons clearly exposes a child to

loss or injury); see also In re A.O., No. 02-21-00376-CV, 2022 WL 1257384, at *11 (Tex.

App.—Fort Worth Apr. 28, 2022, pet. denied) (mem. op.) (including in endangerment

analysis the fact that baby was given access to loaded gun); In re G.V., No. 14-02-00604-

CV, 2003 WL 21230176, at *4 (Tex. App.—Houston [14th Dist.] May 29, 2003, pet.

denied) (mem. op.) (considering leaving a child with easy access to a loaded weapon as

evidence of endangerment).

There was also evidence that Mother used cocaine and marijuana. A parent’s use

of narcotics and its effect on her ability to parent may qualify as an endangering course

of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). “While illegal drug use alone

may not be sufficient to show endangerment, a pattern of drug use accompanied by

circumstances that indicate related dangers to the child can establish a substantial risk of

harm.” In re R.R.A., 687 S.W.3d 269, 278 (Tex. 2024). “When a pattern of drug use is

coupled with credible evidence of attendant risks to employment, housing, and prolonged

absence from the children, a factfinder reasonably can find endangerment to the child’s

physical or emotional well-being under (D) and (E).” Id. at 281. Those attendant risks are

present in this case as Mother has had trouble maintaining housing and employment and

would leave N.N.J. alone with a firearm. See id.

Viewing all the evidence in the light most favorable to the trial court’s (D) and (E)

findings and considering undisputed contrary evidence, we conclude that a reasonable

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factfinder could form a firm belief or conviction that the findings were true. See In re A.C.,

560 S.W.3d at 634. Further, considering the entire record, including evidence both

supporting and contradicting the trial court’s findings, we conclude that the contrary

evidence is not so overwhelming as to undermine the court’s findings. See id. We overrule

Mother’s first issue.

C. Best Interest

In Mother’s second issue, she argues there is legally and factually insufficient

evidence supporting the trial court’s best interest finding.

1. Holley Factors

There is a strong, though rebuttable, presumption that keeping a child with a parent

is in the child’s best interest. TEX. FAM. CODE ANN. § 153.131; In re R.R., 209 S.W.3d 112,

116 (Tex. 2006). We consider the following factors in determining whether termination of

parental rights is in a child’s best interest: (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 parenting abilities of the parties seeking

custody; (5) the programs available to assist the parties seeking custody; (6) the plans

for the child by the parties seeking custody; (7) the stability of the home or proposed

placement; (8) the acts or omissions committed by the parent which may indicate that the

existing parent-child relationship is not proper; and (9) any excuse for the acts or

omissions committed by the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

The party seeking termination is not required to prove all nine Holley factors, and in some

cases, undisputed evidence of just one factor may be sufficient to support a finding that

termination is in the best interest of the child. In re C.H., 89 S.W.3d 17, 25, 27 (Tex. 2002).

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2. Analysis

As to the first Holley factor, N.N.J., expressed his desire to stay in his current

placement, and he would show signs of distress after extended visits with Mother. This

factor supports the trial court’s finding.

As to the second Holley factor, there was evidence that N.N.J. was receiving play

therapy to treat PTSD and acute stress disorder. Further, N.N.J.’s foster parents are in

the process of setting up a medical procedure to correct N.N.J.’s eyelid. On the other

hand, there is no indication that Mother is capable of addressing his needs due to her

unstable lifestyle. This factor supports the trial court’s finding as well.

Relevant to the third Holley factor is Mother’s drug use, presence of domestic

violence, and sexual abuse of the child. See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—

Fort Worth 2007, no pet.) (noting that a parent’s drug use supports a finding that

termination is in the best interest of the child); In re R.W., 129 S.W.3d at 742–43; In re

J.I.T.P., 99 S.W.3d at 846 (stating domestic violence supports finding that termination is

in child’s best interest even when child is not the victim of violence). Further, as analyzed

above, the evidence supports the trial court’s endangerment findings. See In re V.A., 598

S.W.3d at 333 (“Evidence supporting termination under the grounds listed in [§]

161.001(b)(1) can be considered in support of a finding that termination is in the child’s

best interest.”). This factor supports the trial court’s finding.

Moving to the fifth, sixth, and seventh Holley factors, the evidence shows that

N.N.J.’s current caregivers were meeting his basic needs and wished to adopt him, while

Mother showed continued instability through her lack of housing and continued drug use.

See In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (“A

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parent’s drug use, inability to provide a stable home, and failure to comply with [the] family

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

need for permanence through the establishment of a “stable, permanent home” has been

recognized as the paramount consideration in determining best interest. In re G.A.C., 499

S.W.3d 138, 141 (Tex. App.—Amarillo 2016, pet. denied); In re K.C., 219 S.W.3d 924,

931 (Tex. App.—Dallas 2007, no pet.). These factors support the trial court’s best interest

finding.

Regarding the eighth and ninth Holley factors, Mother offered no credible excuse

for her failures to protect N.N.J. and provide him with a stable home. See In re O.E.R.,

573 S.W.3d 896, 911 (Tex. App.—El Paso 2019, no pet.). These factors support the trial

court’s best interest finding as well.

Considering all the Holley factors, we conclude that the evidence was legally and

factually sufficient to rebut the strong presumption that keeping N.N.J. with his biological

mother is in his best interest. See TEX. FAM. CODE ANN. § 153.131. We overrule Mother’s

second issue.

III. CONCLUSION

We affirm the trial court’s judgment.

L. ARON PEÑA JR.
Justice

Delivered and filed on the
18th day of June, 2025.

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