C. R. F. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00750-CV

C. R. F., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY
NO. 2024V-025, THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING

CONCURRING AND DISSENTING OPINION

Termination of parental rights is the death penalty of civil cases. In re J.W.,

645 S.W.3d 726, 751 (Tex. 2022). Our role as the reviewing court is that of the coroner, not

executioner. Cf. Oral Argument at 47:30; In re H.S., No. 24-0307 (Tex.),

https://www.youtube.com/watch?v=BAeOdYdS1Pw. And if, as here, our inquest reveals that

the parent-child relationship has a breath of life yet in it, we must refrain from sounding the final

death knell. Because the evidence is legally and factually insufficient to support the trial court’s

finding that termination of Mother’s parental rights is in her children’s best interest, I

respectfully dissent in part. 1

1 I concur with the Court’s conclusions that the evidence is legally and factually
sufficient to support the predicate grounds for termination and that the Department engaged in
reasonable efforts toward reunification. I also concur with the Court’s decision to affirm
appointment of the Department as permanent-managing conservator, not for the reason stated by
the Court, but because the trial court did not abuse its discretion by finding that this appointment
I. STANDARD OF REVIEW

“The natural rights which exists between parents and their children is one of

constitutional dimension.” D.V. v. Texas Dep’t of Fam. & Protective Servs., 722 S.W.3d 854,

858 (Tex. 2025) (citation modified) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.

1976)). “This natural parental right has been characterized as ‘essential,’ ‘a basic civil right of

man,’ and ‘far more precious than property rights.’” Holick v. Smith, 685 S.W.2d 18, 20 (Tex.

1985). “When the State initiates a parental rights termination proceeding, it seeks not merely to

infringe that fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 759

(1982). To do so, the Department must show by clear and convincing evidence that termination

of the parent-child relationship is in the child’s best interest. In re J.W., 645 S.W.3d at 740 ; see

Tex. Fam. Code §§ 101.007, 161.001(b). “‘Clear and convincing evidence’ means a ‘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 stablished.’” In re N.G., 577 S.W.3d 230, 235 (Tex.

2019) (per curiam) (quoting Tex. Fam. Code § 101.007); see Santosky, 455 U.S. at 769 (holding

that clear and convincing standard “conveys to the factfinder the level of subjective certainty

about his factual conclusions necessary to satisfy due process”). “This heightened proof standard

carries the weight and gravity due process requires to protect the fundamental rights at stake.”

In re A.C., 560 S.W.3d 624, 630 (Tex. 2018).

Given this higher burden of proof at trial, there is also a heightened standard of

review on an appeal from an order terminating the parent-child relationship. In re A.B.,

was in the children’s best interest. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (explaining
that “[b]ecause different standards apply, evidentiary review that results in a reversal of a
termination order may not yield the same result for a conservatorship appointment”); M.D. v.
Texas Dep’t of Fam. & Protective Servs., No. 03-20-00531-CV, 2021 WL 1704258, at *12–13
(Tex. App.—Austin Apr. 30, 2021, no pet.) (mem. op.).
2
437 S.W.3d 498, 502 (Tex. 2014). In determining the sufficiency of the evidence to support

such an order, we “must undertake ‘an exacting review of the record with a healthy regard for the

constitutional interests at stake.’” Id. at 503 (quoting In re C.H., 89 S.W.3d 17, 26 (Tex. 2002)).

The Court correctly states the standards for our legal and factual sufficiency reviews. However,

in reviewing the evidence, it rests its decision on evidence that legally weighs nothing.

II. BEST-INTEREST FINDING

The evidence relevant to the best-interest finding in this case falls into two

categories: post- and pre-removal evidence.

A. Evidence of Post-Removal Behavior

Per the Court, the evidence of post-removal behavior indicating that termination is

in the children’s best interest includes evidence that (1) the boys’ placement is a good one,

(2) the Department was uncertain whether Mother was sober, and (3) Mother was hostile in her

communications with the Department and the children’s placement. None of this evidence can

rationally support a best-interest finding.

Allison Brugger, the CASA, testified that the children had been in their current

placement for about three months. Aside from a conclusory statement that the placement was

willing to care for the boys on a “long-term” basis, no evidence was presented as to what the

placement’s plans were for the child or whether the placement was willing to adopt. Brugger

testified that the transition “has been a little bumpy” but that the boys were doing well and their

poor “behaviors have basically dissipated.” Regardless, the best interest standard does not allow

termination simply because the children might be “better off” living elsewhere. C.C. v. Texas

3
Dep’t of Fam. & Protective Servs., 653 S.W.3d 204, 217 (Tex. App.—Austin 2022, no pet.). I

would not conclude that evidence that the boys are doing well supports termination. See id.

The Department was “unsure” if Mother was sober or had a safe home. But “[t]he

absence of evidence cannot be used as if it were clear and convincing evidence supporting a

termination finding.” In re J.D.G., 570 S.W.3d 839, 854 (Tex. App.—Houston [1st Dist.] 2018,

pet. denied). Mother testified that she had not failed any drug tests during the pendency of the

case, and no one from the Department rebutted this testimony. The Department conceded that

Mother was on parole for much of this case and that she was required to drug test as a condition

of her parole. Ashley King, a Department caseworker, testified that, since Mother moved during

the pendency of the case, Mother was required to find a place in New Mexico that would drug

test her. However, it is undisputed that Mother did find a place in New Mexico to drug test her,

as she regularly drug-tested as part of her parole. And, according to Mother, she never once

failed any of these drug tests. King conceded that the Department did not ask for the results of

the drug tests she took while on parole and argued that those tests “would not be random.” But

neither King nor anyone else from the Department testified regarding any dates when the

Department asked Mother to drug test and she either failed the drug test or refused to test.

Indeed, King testified that she had “not seen any negative or positive drug tests for” Mother.

It was not Mother’s burden to prove that she was sober and stable; it was the

Department’s burden to prove that she was not. See In re D.T., 34 S.W.3d 625, 641 (Tex.

App.—Fort Worth 2000, pet. denied); In re K.W., No. 01-23-00530-CV, 2024 WL 116938, at *7

(Tex. App.—Houston [1st Dist.] Jan. 11, 2024, pet. denied) (mem. op.). The trial court was not

obliged to treat as credible Mother’s testimony that she did not test positive for any drugs. But

we should not reverse the applicable burden of proof and infer by omission that the evidence the

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Department was “unsure” about exists. Because the record contains no evidence that

Mother used substances during this case or that her current home is unsafe, I would not

conclude that Mother’s alleged lack of sobriety and stability is any evidence in support of the

best-interest finding.

The Department also called Mother “hostile” and claimed she harassed both the

boys’ placement and the Department’s caseworkers. But an assertion that Mother was “hostile”

or harassing, without some sort of factual basis to support this, does not support termination. See

In re A.H., 414 S.W.3d 802, 807 (Tex. App.—San Antonio 2013, no pet.) (“[C]onclusory

testimony, . . . even if uncontradicted[,] does not amount to more than a scintilla of evidence.”).

True, Mother requested a welfare check on the boys on the date they flew from Texas to

Kentucky. But the facts underpinning this request justify its occurrence. Brugger testified that

the boys were originally supposed to leave Texas “at 2:20 in the afternoon.” Instead, they left

“around 9:30 p.m.” The Department did not inform Mother of this delay. Because the day the

boys left was the day that Mother would typically have visitation, she testified that the

Department told her she “would get a phone call or a video visit from the airport.” But Mother

did not receive a phone call or video visit.

King testified regarding this incident as follows:

Q. And when [Mother] last communicated with you or the
Department, she thought you guys were going to take a
2:00 o’clock flight, correct?

A. Yes.

Q. And so would it be strange or unusual to call the police to do a
welfare check when she hasn’t heard from the Department or
placement and it’s now midnight and the children still aren’t home
or—aren’t at placement?

5
A. No.

Q. But yet you testified that was erratic behavior?

A. I believe that she was already in contact with [the placement] and
knew that we were on our way.[ 2]

Q. Did you yourself let her know?

A. No, I don’t think so.

Q. Did she reach out to you?

A. Yes, earlier in the evening.

Q. And so how long would it have taken to send her a message or
make a phone call and say, Hey, [Mother], the flight was delayed.
We’re not going to get there until after midnight. Don’t worry, I’ll
let you know when the kids are there safe?

....

A. A minute.

Q. And yet you didn’t do it?

A. No.

I cannot conclude that a welfare check is outside the realm of reasonable reactions when children

are flying across state lines with virtual strangers, those children are several hours late, the

strangers ignore Mother’s requests for status updates, and the only person providing any

assurances is not with the children. Mother need not have waited until her children were harmed

before taking steps to ensure their safety. There was no evidence that the welfare check bothered

the placement, and, more importantly, the boys were apparently unfazed by the welfare check.

2 No context was provided for why King believed this. See In re M.A.A.,
No. 01-20-00709-CV, 2021 WL 1134308, at *38 (Tex. App.—Houston [1st Dist.]
Mar. 25, 2021, no pet.) (mem. op.) (“A single statement without context provides insufficient
evidence to support a finding” that termination is in children’s best interest.).
6
Three other facts were adduced in support of the assertion that Mother’s behavior

was hostile or harassing. First, King stated, “I have text messages in my phone where she asks

for my employee badge and has made threats to make complaints and reports.” These text

messages were not admitted into evidence. King acknowledged that if Mother was unsatisfied

with her job performance, she had the option to complain in whatever manner “she feels most

comfortable with.” But King testified that it “was the general tone of the messages” that made

her feel “unsafe.” However, once again, the Department refused to provide any detail about

what was inappropriate about Mother’s tone. The Constitution discourages jailing individuals

simply for being rude to the police, see U.S. Const. amend. I & IV, and we should not terminate

parental rights when a parent’s “tone” through text messages is interpreted as hostile, cf. In re

A.V., 113 S.W.3d 355, 361 (Tex. 2003) (“[T]he purpose of the State’s intervention in the

parent-child relationship is to protect the best interests of the children, not to punish parents for

their conduct.”).

Moreover, though I join the Court to the extent it holds that precedent constrains

our conclusion as to whether the Department’s efforts were reasonable, I am not convinced that

the Department’s efforts were above complaint in this case. Indeed, even the Department

acknowledged that its actions in this case were unacceptable. Specifically, King testified:

Q. And do you know if either [of the caseworkers] made any kind of
notes about their communication with [Mother]?

A. Their notes in our system are very sporadic.

Q. Is that common?

A. No.

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Q. Is that even acceptable?

A. No.

King also testified that the children sustained minor injuries while in the Department’s custody

but was “not a hundred percent sure if [Mother] was or wasn’t” notified of these injuries. I

would not conclude that Mother’s threat to file a complaint in this case was any evidence tending

to prove that termination of her parental rights was in the children’s best interests, especially

given the Department’s concession that its employees did not always perform their jobs in an

acceptable manner.

Second, Brugger testified that Mother harassed the children’s placement. As

support for this, Brugger testified, “At some point there was a comment like if she wasn’t able to

have her visit that was scheduled on July 4th, that it would not be good. Of course, those weren’t

the words but the general gist.” But it would shock the conscience if the Department disagreed

with the statement that “it would not be good” for Mother to miss her visitation with the children.

Again, I would not conclude that this communication, which veers on objective fact, was in any

way harassing.

Lastly, the Department suggested that Mother ignored court orders.

Junelia Walton, another Department caseworker, testified that she had “seen text messages where

mom has been trying to get in touch with the children when it’s . . . . court-ordered for her to not

have contact.” However, Walton could not provide a date for when these messages were sent.

Walton also testified that the messages were not sent directly to the children, but to third parties

and that “[s]he just wanted to know how the boys were doing, if she could have any kind of

pictures, and the other one was . . . for the boys to call her.” Workers for the Department

acknowledged that Mother was not present at the hearing at which her contact with the children
8
was limited. Mother testified that as soon as she was aware of the court’s order, she had no

further communication of this nature. This testimony was unrebutted. Accordingly, there is no

evidence that Mother knowingly ignored any court orders.

Apart from this, there was no evidence that Mother’s communications were

inappropriate. 3 And without that evidence, the record does not reflect any post-removal behavior

that could justify termination. In closing, counsel for the Department “agree[d Mother] worked

services.” See In re T.M.P., 417 S.W.3d 557, 569 (Tex. App.—El Paso 2013, no pet.)

(“Stipulations of fact are binding on the parties.”). But the Department and CASA believed that

Mother’s intentions for completing her service plan were impure. Specifically, both the

Department and CASA hypothesized that Mother was just completing her service plan to get her

children back, rather than to enact lasting change in her life. Speculation alone cannot support

any civil judgment, much less one that must be supported by clear and convincing evidence. See

Coastal Transp. Co. v. Crown Cent. Petrol. Corp., 136 S.W.3d 227, 232 (Tex. 2004) (“Opinion

testimony that is conclusory or speculative . . . . cannot support a judgment.”); Zavala

v. Burlington N. Santa Fe Corp., 355 S.W.3d 359, 372 (Tex. App.—El Paso 2011, no pet.)

(“[A]n inference stacked only on other inferences is not legally sufficient evidence.”).

3 There is no evidence that it did so, but to the extent that the trial court considered any
evidence presented at prior hearings concerning Mother’s conduct towards either the Department
or the children’s placement, it would have erred. See In re E.F., 591 S.W.3d 138, 142 n.4 (Tex.
App.—San Antonio 2019, no pet.) (“Although we recognize the trial court and the parties in this
proceeding had many hearings before the date of trial, we emphasize that none of the previous
hearings constitute evidence that can support the trial court’s order terminating a parent’s
rights.”); see also In re E.M., No. 11-24-00310-CV, 2025 WL 1240792, at *8 n.4 (Tex. App.—
Eastland Apr. 30, 2025, no pet.) (mem. op.) (“Texas courts have repeatedly expressed concerns
regarding underdeveloped records in parental termination cases and often must explain that
‘none of the [matters presented at] previous hearings constitute evidence that can support the trial
court’s order terminating a parent’s rights.’” (collecting cases)).
9
The record is replete with evidence indicating that Mother loved her children and

that her children loved her. Mother regularly made the ten-hour drive from her residence in New

Mexico to visitation in Texas to spend time with her children, drawings the boys made for her

and family photos were admitted into evidence, and Mother testified that at least one of the boys

had difficulty parting when it was time for visitation to end. Although the attorney ad litem

recommended termination, he acknowledged that Mother loved her children and that his opinion

on termination vacillated regularly throughout the case. See In re E.S.-A., No. 07-25-00118-CV,

2025 WL 2396579, at *4 (Tex. App.—Amarillo Aug. 18, 2025, no pet.) (mem. op.) (reversing

termination of parental rights where “[c]omments throughout trial described the case as ‘a close

call,’ ‘this is a tough case,’ and the ad litem’s recommendation for termination was accompanied

by ‘it is close’”). Accordingly, the post-removal evidence in this case does not weigh in favor

of termination.

B. Evidence of Pre-Removal Behavior

Most of the evidence the Court relies on occurred before the boys’ removal. But

“[e]ven when the evidence supports termination on endangerment grounds, the outcome of the

best-interest inquiry is not a foregone conclusion.” In re C.C., 720 S.W.3d 41, 65 (Tex. App.—

Texarkana 2025, no pet.). Our sister court said it best:

We are mindful that evidence supporting one or more statutory
grounds for termination may also constitute evidence illustrating
that termination is in the child’s best interest. See In re C.H.,
89 S.W.3d at 28. But such evidence does not relieve the
Department of its heightened burden of proof to show best interest
by ‘clear and convincing’ evidence. In re B.R., 456 S.W.3d 612,
616 (Tex. App.—San Antonio 2015, no pet.). We also
acknowledge that a trier of fact may measure a parent’s future
conduct by past conduct and determine whether termination of

10
parental rights is in a child’s best interest. See id. See also In re
E.C.R., 402 S.W.3d 239, 249–50 (Tex. 2013).

However, if a parent’s misconduct prior to the Department’s
initiation of termination proceedings is used against that parent in
order to seek termination and that parent has successfully worked
services toward the goal of family reunification, then what was the
purpose of the service plan in the first place? Would it not have
been in the best interests of the children to admit up front that the
ultimate end was termination anyway? Because we understand
that the goal of reunification and the rights of the parties to be of
paramount interest, we believe the fact finder must give deferential
weight and consideration to the relative success of the parent when
it comes to completion of the reunification service plan.

In re C.A.M., 633 S.W.3d 68, 76 (Tex. App.—Amarillo Aug. 17, 2021, no pet.); see In re Z.B.,

No. 01-25-00273-CV, 2025 WL 2832223, at *14 (Tex. App.—Houston [1st Dist.] Oct. 7, 2025,

no pet.) (mem. op.) (“[W]e agree with the Amarillo Court of Appeals, which acknowledged the

injustice of considering only pre-removal behavior when the evidence shows that the parent has

worked the services recommended by the Department and ordered by the court in order to

accomplish the goal of safely reunifying with her child.”); In re A.C.P., No. 04-24-00653-CV,

2025 WL 900127, at *9 (Tex. App.—San Antonio Mar. 25, 2025, no pet.) (mem. op.)

(concluding evidence was legally insufficient to support best-interest finding in part because

“while there was clear and convincing evidence of endangerment pre-removal, the record

contains paltry evidence of post-removal facts”).

If a parent committed acts that, in the Department’s eyes, are insufficient to

abandon the goal of reunification altogether, it should not then be permitted to solely rely on

those acts in support of an assertion that termination is in the child’s best interest. See In re

C.A.M., 633 S.W.3d at 76. Stated otherwise, the Department should not be permitted to dangle

the carrot of reunification while always intending to use the stick of termination hiding behind its

11
back. Despite Mother’s past, the Department created a family service plan that purportedly

outlined what Mother was required to do to reunify with her children. And per the Department’s

concession, Mother completed those tasks. Yet, the Department, relying heavily on Mother’s

past and its professed inability to provide her with services, ultimately recommended

termination. I cannot countenance such a shell game could possibly be in the best interest of

these children, whose hopes of reunification built up throughout this case, only to be ultimately

dashed by things Mother could not change.

Even assuming the Court applies the appropriate weight to evidence of Mother’s

pre-removal behavior, much of the evidence of that behavior suffers from the same pitfalls as the

evidence of the post-removal behavior. For instance, the main source of evidence concerning

Mother’s prior involvement with CPS in New Mexico is Mother’s own testimony. Again, the

trial court need not have credited Mother’s testimony that New Mexico CPS largely had no

reason for removing her children from her care or investigating her family, but the Department

was responsible for presenting some evidence about those prior cases. Aside from the evidence

indicating Mother ran away with the children after CPS placed them in a foster home after

learning of Frank’s father’s criminal conduct, there does not appear to be any evidence indicating

the reasons for New Mexico CPS’s prior involvement with this family. Additionally, Frank’s

father’s violent behavior, of which little evidence was elicited at trial and over which Mother had

no control, is not relevant to the best-interest finding, given that it occurred in the distant past,

Mother is no longer in a relationship with Frank’s father, and he received a thirty-seven-year

prison sentence for his criminal conduct. See In re C.E.K., 214 S.W.3d 492, 496 (Tex. App.—

Dallas 2006, no pet.); Colbert v. Department of Fam. & Protective Servs., 227 S.W.3d 799, 812

(Tex. App.—Houston [1st Dist.] 2006, pet. denied) (where mother’s boyfriend received life

12
sentence for abusive conduct, boyfriend was “no longer a threat to the children’s safety” and

“there is no evidence that the children will be emotionally or physically endangered by being

returned to” mother).

Overall, the evidence that the Court weighs in favor of the trial court’s judgment

amounts to no more than a scintilla of evidence. Both our state and federal constitutions demand

more. See Santosky, 455 U.S. at 769; Wiley, 543 S.W.2d at 352 (“Actions which break the ties

between a parent and child ‘can never be justified without the most solid and substantial

reasons.’” (quoting State v. Deaton, 54 S.W. 901 (Tex. 1900)). Accordingly, I would hold that

the evidence is legally and factually insufficient to support the court’s finding that termination

was in the children’s best interest, and I would reverse the trial court’s judgment.

III. INCONVENIENT FORUM

Lastly, I question the wisdom of exercising jurisdiction in this case. This case did

not take place in Texas because this family calls Texas home. This case took place in Texas

solely because Mother committed a crime in Texas and the Department delayed in finding a

suitable home for the children. Neither Mother nor the children will likely come back to Texas

as anything other than tourists ever again. Why, then, should Texas be the final resting place of

this family’s bonds?

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was

not raised below as an issue potentially precluding the exercise of jurisdiction over this matter.

See, e.g., Tex. Fam. Code ch. 152. That being said, we have previously explained that the

UCCJEA implicates a trial court’s subject-matter jurisdiction over a custody case. See, e.g., In

re K.M.P., 323 S.W.3d 601, 604–05 (Tex. App.—Austin 2010, pet. denied). But see In re D.S.,

13
602 S.W.3d 504, 518 (Tex. 2020) (Lehrmann, J., concurring) (“[A] court’s lack of ‘jurisdiction’

under the [UCCJEA] does not equate to a lack of ‘subject matter jurisdiction’ that deprives the

court of the power to hear and decide the case . . . .”). “[S]ubject-matter jurisdiction cannot be

waived or conferred by agreement, and we have a duty to consider a question of subject-matter

jurisdiction sua sponte because the district court’s power to decide the merits, as well as our own,

rests upon it.” Good Shepherd Med. Ctr. v. State, 306 S.W.3d 825, 837 (Tex. App.—Austin

2010, no pet.); In re L.N.A.H., 665 S.W.3d 907, 910 (Tex. App.—Houston [14th Dist.] 2023, no

pet.). There are different ways a court may acquire jurisdiction over a custody case; as relevant

here, if Texas is not the home state of the children at the commencement of the proceedings, it

may nonetheless exercise “temporary emergency jurisdiction” over the case. 4 See Tex. Fam.

4 The affidavit in support of removal specified that Mother and the children had been
living out of her car in Texas for an unspecified period of time, but that their current address was
in New Mexico and that they had no other place of residence during the past six months. Thus,
Texas did not have home-state jurisdiction at the inception of this case. See Tex. Fam. Code
§ 152.102(7) (defining “home state” in relevant part as “the state in which a child lived with a
parent or a person acting as a parent for at least six consecutive months immediately before
the commencement of a child custody proceeding”); id. § 152.201(a)(1); In re Salminen,
492 S.W.3d 31, 40 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding) (where no evidence
established amount of time mother and child had resided in Texas at time of commencement of
suit, Texas lacked home-state jurisdiction).

I would also note that the trial court found that no other court had continuing, exclusive
jurisdiction over these children. But Mother testified that she had previously been arrested for
custodial interference. Only one of two things can be true: (1) Mother interfered with a child
custody determination issued by a New Mexico court, in which case, New Mexico had
continuing, exclusive jurisdiction and only New Mexico could make the decision to issue further
orders concerning these children or to relinquish jurisdiction to Texas, see N.M. Stat. § 30-4-4
(for parent to commit custodial interference, there must be “a judgment or order of a court of
competent jurisdiction providing for the custody of a child, including visitation rights”); Tex.
Fam. Code §§ 152.102(3), (8), (12), .203, .204; Saavedra v. Schmidt, 96 S.W.3d 533, 548–49
(Tex. App.—Austin 2002, no pet.) (“We reiterate that the trial court’s assumption of temporary
emergency jurisdiction does not include jurisdiction to modify the California court’s child
custody determination.”); or (2) New Mexico never issued an initial custody determination, in
which case Mother committed no offense, but Texas could exercise jurisdiction and issue a final
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Code § 152.204(a). Texas “has temporary emergency jurisdiction if the child is present in this

state and the child has been abandoned or it is necessary in an emergency to protect the child

because the child, or a sibling or parent of the child, is subject to or threatened with mistreatment

or abuse.” Id. But the term “temporary” should not be ignored. If a custody case commences in

another state that has jurisdiction or if Texas does not become the children’s home state during

the pendency of the suit, the Texas court does not have jurisdiction to proceed to a final custody

determination. See id. § 152.204(b); A.P. v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-23-00089-CV, 2023 WL 3956859, at *4 (Tex. App.—Austin June 13, 2023, pet. denied)

(mem. op.). Based solely on the amount of time the Department spent searching for an

appropriate placement for the children while they remained in foster care, Texas became the

children’s home state and thus, Texas had jurisdiction to render a final judgment. 5 See Tex.

Fam. Code §§ 152.102(7), 152.204(b); In re J.C.B., 209 S.W.3d 821, 824 (Tex. App.—Amarillo

2006, no pet.).

custody determination, see Tex. Fam. Code § 152.204. I will not draw inferences from the
Court’s exercise of jurisdiction over this appeal. But to the extent the Court simultaneously
concludes that Mother may have interfered with a prior New Mexico custody order, but that
Texas had jurisdiction to issue a final order in this matter, I must dissent.
5 According to Mother, the Department apparently rejected an otherwise suitable
placement at the outset of the case because of a “language barrier” between workers for the
Department and the placement. Mother testified that this placement was “a licensed childcare
provider for the State of New Mexico with a specialty in children with autism” and that she had
been the children’s “full-time babysitter for the last three years.” According to status reports
made part of the clerk’s record, one of the boys reported to the Department that he felt safe with
this person and wanted to live with her. Had the Department placed the children with this
individual rather than initially leaving them in a foster home, Texas never would have acquired
jurisdiction over this case. Cf. Tex. Fam. Code § 152.208(a) (providing that “the court shall
decline to exercise its jurisdiction” if party seeking to invoke jurisdiction “has engaged in
unjustifiable conduct,” unless certain exceptions, such as parties’ acquiescing in exercise of
jurisdiction, apply).
15
But just because a court may exercise jurisdiction does not mean that a court must

exercise jurisdiction. In cases involving interstate custody issues, courts are permitted to raise

the issue of inconvenient forum sua sponte. Tex. Fam. Code § 152.207(a). They need not wait

for a party’s motion before determining whether Texas is the most convenient forum for

determining the fate of a family whose ties to this state are simply a matter of circumstance. See

id. The Department argues that Mother’s move to New Mexico—both her home and the

children’s home before this case—prevented it from being able to provide her with services.

Maybe so, but is that not another indication that Texas was not the appropriate forum for this

case? See id. § 152.207(b) (court must consider “all relevant factors” when determining whether

it is inconvenient forum). Mother testified that she moved to New Mexico because she had

“established support” there; Mother could not afford to live elsewhere. See id. § 152.207(b)(4)

(court must consider “the relative financial circumstances of the parties”). Moreover, all the

evidence concerning Frank’s father’s conduct and Mother’s prior involvement with child

protection services existed in New Mexico, not Texas. See id. § 152.207(b)(6) (court must

consider “the nature and location of the evidence required to resolve the pending dispute),

(8) (court must consider “the familiarity of the court of each state with the facts and issues in the

pending litigation”).

Regardless of the concerns I harbor about the convenience of trying this case in

Texas, Mother did not raise this issue below or on appeal. Thus, I would not reverse on this

basis. See Tex. R. App. P. 33.1(a). I write this section solely to underscore that trial courts have

options in cases like this one, and they need not move forward undeterred when both the parent

and the Department report that the primary parent’s return to his or her home state has

complicated the Department’s obligations to the family. See Tex. Fam. Code § 152.207.

16
IV. CONCLUSION

In my view, the Court has impermissibly shifted the burden of proof from the

Department and onto Mother. Parents are not merely the sum of their worst days, and our

sufficiency review recognizes this. See In re A.J.D.-J., 667 S.W.3d 813, 829 (Tex. App.—

Houston [1st Dist.] 2023, no pet.). Rather than forever sever the ties between a Mother that

loves her children and children that love their Mother, I would stitch those ties back together.

Thus, I respectfully dissent in part.

__________________________________________
Maggie Ellis, Justice

Before Chief Justice Byrne, Justices Crump and Ellis

Filed: March 27, 2026

17

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00750-CV

C. R. F., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY
NO. 2024V-025, THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING

MEMORANDUM OPINION

Following a bench trial, the trial court signed an order terminating the parental

rights of C.R.F. (“Mother”) to her children “Jeff,” “Eric,” and “Frank.”1 Mother challenges the

legal and factual sufficiency of the evidence supporting the trial court’s findings of statutory

grounds for termination and its best-interest findings. See Tex. Fam. Code §§ 161.001(b)(1)(D)

(endangering conditions), (E) (endangering conduct), (b)(2) (best interest of child). Mother also

challenges the legal sufficiency of the evidence supporting the trial court’s findings that the

Department made reasonable efforts toward reunification and that appointing the Department as

the children’s permanent managing conservator is in their best interest. For the following

reasons, we will affirm the trial court’s order.

1
We refer to appellant by her initials or as Mother, to the children by aliases, and to
other individuals by their relationships to the child or to Mother. See Tex. Fam. Code
§ 109.002(d); Tex. R. App. P. 9.8. In this case, the termination order also terminated the parental
rights of Jeff’s father, Eric’s father, and Frank’s father, but none of the fathers have appealed.
BACKGROUND

On January 30, 2024, Jason Fowler, a Fayette County Sheriff’s Office Deputy,

was on a routine patrol. At 1:06 a.m., Deputy Fowler noticed a vehicle parked in the parking lot

of a closed business. Deputy Fowler viewed the vehicle as “suspicious” because all the windows

of the car were covered with blankets and quilts and it had a temporary license plate from New

Mexico. Deputy Fowler knocked on the vehicle’s window, Mother lowered the window, and

Deputy Fowler asked her what was going on and why she was there. Mother told him that she

was stopping to rest and was on her way to Clute, Texas, to visit her brother who had just had a

child. Deputy Fowler was informed by his dispatch office that Mother had two outstanding

felony warrants; one from Brazoria County, Texas, for assault family violence and one from

New Mexico for custodial interference. When Deputy Fowler asked Mother about the warrants,

she gave him “some paperwork” that she said addressed the New Mexico incident and told him

she had one child in the car with her. Deputy Fowler turned away from the vehicle to talk to his

dispatch office and heard the engine of Mother’s vehicle revving. Mother then “took off” in her

vehicle with no lights on.2 Deputy Fowler then notified dispatch that he was pursuing Mother

and activated his lights and sirens. Mother drove westbound on State Highway 71, reaching

speeds over 100 miles per hour. Mother then turned and travelled eastbound on State Highway

71 before turning off on Highway 955, stopping, and waving her arms out of the vehicle’s

window “like she was giving up.” When Deputy Fowler approached the vehicle, Mother drove

off again, travelling westbound on State Highway 71, reaching speeds over 111 miles per hour.

Dispatch notified Deputy Fowler that another officer was on the way with a tire deflation device.

After deploying the device, two tires on Mother’s vehicle deflated and she pulled over on the

2
Mother turned her lights on after traveling about 1/8th of a mile.
2
side of the road into the parking lot of a business. When the officers got Mother out of her

vehicle they noticed that there were in fact three children inside; nine-year-old Jeff, six-year-old

Eric, and three-year-old Frank. Mother was taken into custody and charged with evading arrest

with a motor vehicle and child endangerment. Deputy Fowler stated that Mother had been

driving at a dangerously high rate of speed on a dark roadway where animals and livestock are

sometimes present on the road and that at that rate of speed she could easily have lost control of

the vehicle and injured herself, her children, and third parties. The three children were

transported to the Fayette County Sheriff’s Office, which notified the Department.

Alejandra Cerda, a Department investigator, met with the children at the Sheriff’s

Office. Cerda was told that Mother’s brother was unable to leave his county of residence

because he was on probation and could not retrieve the children. Cerda spoke with Jeff, who

stated that he was nine years old and does not attend school because “he is going on a road trip”

to see his uncle in Texas. Jeff said the family had been on the road trip “for about a week.” Jeff

said that they were eating sandwiches, eating out, and had made hamburgers in the car using an

electric mini-grill. They had been sleeping in the car and taking showers at gas stations. Other

than a “nana” in Albuquerque, New Mexico, Jeff said he has no other family. Jeff reported

feeling safe with Mother and that he had not been left home alone by her. Cerda attempted to

speak with Eric, but could not get him to wake up to speak with her. Cerda could not speak with

Frank “due to his age and being nonverbal.” Cerda reported that Eric and Frank appeared to be

dirty and “had a foul odor.” The children did not have jackets and Frank did not have shoes or

socks. The Sheriff’s Office had provided them with blankets and the children appeared to be

healthy and unharmed.

3
Cerda met with Mother at the Fayette County Jail. Mother said that she and the

children were sleeping in the car while on their way to visit her brother who she stated lived in

Sweeney. Mother said that when confronted with the warrants she “made the stupid decision to

run” resulting in her children being removed from her care again. Mother reported that she had

Child Protective Services history in Albuquerque originating in 2020 when her children were

removed from her care because Frank’s father had been “involved in a child murder” and the

community backlash caused CPS to investigate. 3 While the New Mexico CPS case was still

open, Mother was charged with custodial interference for taking the children from CPS custody

without permission. Mother stated that the New Mexico CPS returned her children to her care in

2021. Cerda determined that removal of the children was necessary because Mother and the

children were from New Mexico, Mother had fled from law enforcement at high speeds with the

children in the car, Mother was in the Fayette County Jail, and there was no other relative or

parent available to take possession of the children. 4 The Department sought temporary

managing conservatorship of the children.

The Department provided Mother with a family reunification plan that required

her to take a protective parenting class, undergo drug testing, undergo a psychological exam,

participate in counseling due to her history of drug use, and demonstrate “lifestyle changes.”

The Department told Mother that if she tested positive for drugs it would require an OSAR

evaluation followed by appropriate treatment. Mother completed a parenting class while

incarcerated and, after her release, resided in a transitional living facility. After living at the

3
The criminal charges against Frank’s father did not involve any of Mother’s children,
and she denied being aware of them at the time she was in a relationship with Frank’s father.
4
Mother reported that she did not know where Jeff’s father was living, that Eric’s father
lived somewhere in Kentucky, and that Frank’s father was incarcerated.
4
transitional living facility for a month and a half, Mother moved to New Mexico. The children

were placed in a group home in Texas and were later relocated to live with Mother’s Cousin

in Kentucky.

When Mother moved to New Mexico from the Texas transitional living facility,

the Department informed her that it would be unable to provide her any services because it did

not have the ability to contract with out-of-state providers. The Department advised Mother that

she would have to seek out and pay for services in New Mexico on her own and that, to establish

her sobriety, Mother would need to pay for drug testing in New Mexico. Mother did not provide

the Department with any drug test results. Mother completed a psychological exam that

identified some mental health issues, including bipolar disorder, cannabis use disorder,

adjustment disorder with depression, and behavior described as “hostility” and “scapegoating” of

the children. Mother travelled from New Mexico to attend some of the scheduled in person

visits with the children and had telephone visits with them until visitation was suspended in July

2025 at the request of the Court Appointed Special Advocate (CASA) who cited concerns about

Mother’s hostile and threatening communications with the children’s placement and the

observation that the children’s behavior declined significantly after virtual visits with Mother.

During a one-day bench trial in September 2025, the Department asked the court

to terminate Mother’s parental rights to the children and for their current placement to be

continued and approved. At that time, the children were living with Mother’s Cousin in

Kentucky. The CASA agreed that termination of Mother’s parental rights was in the children’s

best interest. The Department’s witnesses referenced Mother’s CPS case in New Mexico; her

5
taking the children from CPS custody; and the assault family violence 5 and evading arrest

charges resulting from the high-speed police chase. The Department was concerned that,

although Mother had completed a parenting class, she had not demonstrated lifestyle changes

that the Department believed were necessary to provide the children with a safe environment.

The Department also expressed concerns because it did not know if Mother was sober and did

not know if she was receiving treatment for her mental health issues. The Department witnesses

testified that Mother was hostile in her communications with the Department and with the

children’s placement, to the degree that the placement requested that Mother be prevented from

directly communicating with her. The Department witness testified that the placement had to

“get law enforcement in Kentucky” involved due to Mother’s harassing behavior. This caused

the Department to be concerned about unaddressed anger management issues. The court heard

testimony that the children were thriving in their placement, that they wanted to be there, and

that “things are great right now for them.”

The Department acknowledged that the children were bonded with Mother

because of their ages and because they had been in her care for most of their lives. Mother

regularly reached out to the Department for updates on the children, demonstrating to the

Department that she cares about their well-being. In the Department’s view, Mother’s moving

from Texas to New Mexico during the pendency of the case frustrated its ability to provide her

services and obtain sufficient evidence of her sobriety, and “put the burden on Mother” to

demonstrate her ability to provide a safe environment for the children. The CASA testified that

5
The assault family violence charge arose from a physical altercation between Mother
and her aunt after a day at the beach. Mother testified that after coming home from the beach,
her aunt was drinking and hit Mother. Mother stated that she hit her aunt back, and the aunt and
a cousin “jumped” Mother. The record does not reflect whether the children were present during
this incident.
6
the current placement is committed to taking care of the children long-term, and that they are

happy and doing well in school. The CASA expressed concerns about Mother’s hostile and

erratic behavior regarding the children’s placement, including her calling the Kentucky law

enforcement officers to the placement’s home for a welfare check in the middle of the night the

day that the children were transported to Mother’s Cousin’s house, despite the CASA’s belief

that Mother was aware that the children had arrived safely. The CASA also testified that Mother

had provided inauthentic photographs showing injuries to the children that she asserted had

occurred at their placement. The CASA was concerned as well that Mother was violating court

orders by attempting to contact the placement rather than communicating through

the Department.

Mother testified extensively at trial. She explained that she had pleaded guilty to

the charge of evading arrest because she was guilty. Mother agreed that the high-speed chase

was dangerous to her children and had been a mistake but claimed that she had fled from the

police only so they would not take her children from her. Mother testified that she returned to

New Mexico after being released from jail after the high-speed chase because it was difficult for

her to comply with the service plan while she lived in transitional housing in Texas. Mother

stated that when she and her mother travelled to Texas to visit her children the Easter following

her arrest and incarceration, her mother was arrested at the Texas-New Mexico border for

possession of fentanyl and was taken to jail. Mother testified that the police “claimed to have

found fentanyl” in her mother’s backpack “but there’s nothing that can corroborate that at

this point.”

Mother testified that, until the night she called police to conduct a welfare check

on the children in Kentucky, she and Cousin had been in regular communication and had

7
discussed the children and their needs. Mother testified that she called the police to Cousin’s

home in Kentucky because she was worried about the children and not to harass or intimidate

anyone. Mother testified that she believes the children’s current placement to be a good one and

that if the court did not terminate her parental rights, she would want them to remain at Cousin’s

house until she gets “all the way settled and off parole.” Mother testified that she lived with

Yolanda and Deborah Littleton in Albuquerque, New Mexico but said that she would be willing

to move to another state to be near the children. She also testified that if the children were

returned to her care she would move with them to Los Angeles, California where her husband

is living.

Regarding the removal of the children from her care in New Mexico, Mother

testified that it occurred because of her relationship with Frank’s father, who had been charged

with child abuse resulting in the death of a child and dismemberment of the child’s body.

Mother stated that she was not living with Frank’s father when he committed those crimes and

that even though Frank’s father “was not doing anything wrong when she was with him,” New

Mexico CPS “wrongly removed the children and wrongly placed them in an abusive foster

home.” Mother denied knowing about Frank’s father’s criminal case and stated that she never

heard him talking to any probation officer or bondsman. Mother stated that she did not know

why Frank’s father was not incarcerated until 2023 when the criminal charges stemmed from an

incident that occurred in 2016, saying: “That would be a question you would have to ask him

directly.” Mother testified that he was not aware of the charges when she was living with

Frank’s father and that he had given her “a false name.” 6

6
Mother provided no explanation for why Frank shares the same name as his father, nor
did she explain when she learned of the criminal charges and what she did in response.
8
During a December 2021 visit during the New Mexico CPS case, Mother

observed that Jeff had bruising on his hands and Eric’s hair was matted. Mother testified that she

reported this to New Mexico CPS but they did nothing. Mother stated that she took the children

from New Mexico CPS custody because she was concerned for their well being in foster care.

Mother was charged with custodial interference, received a deferred sentence, and later was able

to regain custody of the children in 2022. At that time, Jeff attended a public elementary school

but, in 2023, Mother lost her car and was unable to take them to school so she started home

schooling them using an online program.

Mother testified that she has learned in therapy how to handle stressful situations

and to “process” the situation instead of reacting to it. Although the parenting class was helpful

and taught her skills she can implement in the future, Mother acknowledged that she “still has

some work to do.” She agreed that contact between her and the children would need to be a

stairstep progression. Mother also testified that if her parental rights were terminated, she would

be devastated but that she would not go to Kentucky to try to take the children or interfere with

their placement.

The trial court signed an order terminating Mother’s parental rights to Jeff, Eric,

and Frank, finding by clear and convincing evidence that Mother had knowingly placed or

knowingly allowed her children to remain in conditions or surroundings which endangered their

physical or emotional well-being, that Mother had engaged in conduct or knowingly placed the

children with persons who engaged in conduct which endangered their physical or emotional

well-being, and that termination of the parent-child relationship between Mother and the children

was in the children’s best interest. See Tex. Fam. Code § 161.001(b)(1)(D), (E), (2).

Mother appeals.

9
STANDARD OF REVIEW

To terminate parental rights under Section 161.001, the Department has the

burden to prove by clear and convincing evidence one of the statutory predicate grounds and that

termination is in the best interests of the child. See Tex. Fam. Code § 161.001(b)(1), (2); In re

R.R.A., 687 S.W.3d 269, 271 (Tex. 2024); In re C.E., 687 S.W.3d 304, 308 (Tex. 2024); In re

J.F.-G., 627 S.W.3d 304, 312 (Tex. 2021); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also

Tex. Fam. Code § 161.206(a). “‘Clear and convincing evidence’ means 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 § 101.007; see In re A.C., 560 S.W.3d

624, 626 (Tex. 2018) (“Proceedings to terminate the parent-child relationship implicate rights of

constitutional magnitude that qualify for heightened judicial protection.”). Parental rights have

been described as “essential,” “a basic right,” and “far more precious than property rights.”

Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (citing Stanley v. Illinois, 405 U.S. 645, 651

(1972)). They are “perhaps the oldest of the fundamental liberty interests” protected by the

United States Constitution. Troxel v. Granville, 530 U.S. 57, 64 (2000); E.E. v. Texas Dep’t of

Fam. & Protective Servs., 598 S.W.3d 389, 396 (Tex. App.—Austin 2020, no pet.). “When the

State initiates a parental rights termination proceeding, it seeks not merely to infringe that

fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 759 (1982).

“Consequently, termination proceedings should be strictly scrutinized, and involuntary

termination statutes are strictly construed in favor of the parent.” Holick, 685 S.W.2d at 20.

“This heightened proof standard carries the weight and gravity due process requires to protect the

fundamental rights at stake.” In re A.C., 560 S.W.3d at 630.

10
“A correspondingly searching standard of appellate review is an essential

procedural adjunct.” Id. “The distinction between legal and factual sufficiency lies in the extent

to which disputed evidence contrary to a finding may be considered.” Id. “Evidence 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. “Factual sufficiency, in comparison, requires

weighing disputed evidence contrary to the finding against all the evidence favoring the finding.”

Id. “In a factual-sufficiency review, the appellate court must consider whether disputed evidence

is such that a reasonable factfinder could not have resolved it in favor of the finding.” Id.

“Evidence is factually sufficient 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.

However, “an appellate court’s review must not be so rigorous that the only fact

findings that could withstand review are those established beyond a reasonable doubt.” In re

C.H., 89 S.W.3d 17, 26 (Tex. 2002). “Just as it is imperative for courts to recognize the

constitutional underpinning 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.” Id. In reviewing

findings for factual sufficiency, we must give due deference to the factfinder’s findings and

cannot supplant the factfinder’s judgment with our own. In re H.R.M., 209 S.W.3d 105, 108-09

(Tex. 2006) (per curiam); see In re C.E., 687 S.W.3d at 314 (stating that factfinders are “sole

arbiters of the credibility of the witnesses and the weight to be given to their testimony” and

“entitled to choose to believe one witness and disbelieve another with respect to the disputed

facts of this case”); In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (stating that when reviewing

11
termination order, appellate courts defer to “decision of the factfinder who, having full

opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the

credibility and demeanor of witnesses”).

DISCUSSION

Reasonable efforts to reunify the children with Mother

Mother asserts that there is legally insufficient evidence to support the trial court’s

determination that the Department made reasonable efforts to reunify the children with her. See

Tex. Fam. Code § 161.001(f)(1). Mother argues that “there is no evidence CPS made a sincere

effort to reunify this family.” Subsection 161.001(f) provides that:

(f) In a suit for termination of the parent-child relationship filed by the
Department of Family and Protective Services, the court may not order
termination of the parent-child relationship under Subsection (b)(1) unless the
court finds by clear and convincing evidence and describes in writing with
specificity in a separate section of the order that:

(1) the department made reasonable efforts to return the child to the parent before
commencement of a trial on the merits and despite those reasonable efforts, a
continuing danger remains in the home that prevents the return of the child to the
parent; . . .

Id. The court filed the following findings of fact:

2.1 The Court finds by clear and convincing evidence that the Department made
reasonable efforts to return the children to the parents. However, despite those
reasonable efforts to return the children home to the parents, a continuing danger
remains in the home that prevents return.

2.2 The Court specifically finds that those reasonable efforts include the
following:

12
2.2.1 The Department created a family service plan that is narrowly
tailored to address any specific issues identified.

2.2.2 The Department set up services for [Mother] while she was
incarcerated and when she was released.

2.2.3 The Department facilitated parent-child visits even after the parents
were located out of state.

2.2.4 The Court extended the original dismissal date of the case and the
Department allowed extra time to work services.

Mother asserts that the record contains evidence showing that the Department failed to

communicate with her, failed to inform her about and set up certain services, failed to return her

phone calls and correspondence, and failed to maintain accurate notes and records regarding her

efforts to complete the services set forth in the family service plan.

“The concept of a ‘reasonable effort’ to return the child is effectively a sliding

scale, depending on the situation.” In re K.T.J.M., No. 06-09-00104-CV, 2010 WL 1664027, at

*4 n.12 (Tex. App.—Texarkana Apr. 27, 2010, no pet.) (mem. op.). It is well established that

“reasonable efforts” to reunite a parent and a child can be satisfied through the preparation and

administration of a service plan. See, e.g., In re N.R.T., 338 S.W.3d 667, 674 (Tex. App.—

Amarillo 2011, no pet.); C.G. v. Texas Dep’t of Fam. & Protective Servs. No. 03-18-00852-CV,

2019 WL 3367524, at *7 (Tex. App.—Austin July 26, 2019, no pet.) (mem. op.). “While

implementation of a family service plan by the Department is generally considered a reasonable

effort to return a child to the parent, that is not the only evidence which can satisfy this element.”

In re F.E.N., 542 S.W.3d 752, 766 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). “The

Department’s efforts to place the child with relatives may constitute legally and factually

13
sufficient evidence to support the trial court’s finding that the Department made reasonable

efforts.” In re J.G.S., 550 S.W.3d 698, 704-05 (Tex. App.—El Paso 2018, no pet.). The proper

inquiry is whether the Department made reasonable efforts, not ideal efforts. In re M.V.G.,

440 S.W.3d 54, 61 (Tex. App.—Waco, 2010 no pet.); In re J.A., No. 04-20-00242-CV,

2020 WL 5027663, at *2 (Tex. App.—San Antonio Aug. 26, 2020, no pet.) (mem. op.). “The

issue before us is whether the Department’s reunification efforts were reasonable under the

circumstances.” In re M.N.M., 708 S.W.3d 321, 328 (Tex. App.—Eastland 2025, pet. denied).

The evidence at trial was that the Department provided Mother with a service plan

and, while incarcerated, she completed some of the required courses. Mother testified that she

communicated with her caseworker and the caseworker’s supervisor, stating “I can’t say they

were the best, but they did give me somewhat of communication.” Mother stated that the

Department caseworker assigned to her did a good job of keeping her informed about the

children and that the supervisor would return her communications when he could. The

Department informed Mother that it would be unable to arrange for and pay for services if she

left the State of Texas, and Mother moved to New Mexico after she was told that it would be her

responsibility to provide proof of sobriety and of completing the family service plan. There was

evidence that the Department facilitated Mother’s visits with the children, both in person and

virtually and even after Mother had moved to New Mexico. The Department also arranged for a

relative placement for the children with Mother’s Cousin, and Mother agreed that this placement

was good for the children.

There was evidence that the Department created a detailed service plan for

Mother, provided Mother with opportunities to visit the children, and placed the children with a

relative whom Mother agreed was a good placement. Viewed in a light favorable to the

14
judgment, the evidence was legally sufficient for the factfinder to conclude that the Department

made reasonable reunification efforts.

Statutory ground for termination of Mother’s parental rights

Mother challenges the legal and factual sufficiency of the evidence to support the

trial court’s findings of statutory grounds. See Tex. Fam. Code § 161.001(b)(1)(D), (E). We

limit our review to the trial court’s finding that Mother knowingly placed or knowingly allowed

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

emotional well-being. See id. § 161.001(b)(1)(D); J.B.M.H. v. Texas Dep’t of Fam. & Protective

Servs., No. 03-22-00661-CV, 2023 WL 2920315, at *8 (Tex. App.—Austin Apr. 13, 2023, pet.

denied) (mem. op.) (court may consider one endangerment finding under either (D) or (E)

without addressing the other endangerment finding, even in cases where the other finding is

challenged on appeal).

Endangerment means exposing a child to loss or injury or jeopardizing a child’s

emotional or physical well-being. See Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,

522 (Tex. 1987). A finding of endangerment requires more than the threat of metaphysical

injury or possible ill effects from a less-than-ideal family environment, but the Department does

not have to prove that the conduct was directed at the child or that the child suffered an actual

injury. Subsection (D) authorizes termination of parental rights if clear and convincing evidence

establishes that the parent has “knowingly placed or knowingly allowed the children to remain in

conditions or surroundings which endanger the physical or emotional well-being of the child.”

Tex. Fam. Code § 161.001(b)(1)(D). Subsection (E) authorizes termination of parental rights if

clear and convincing evidence establishes that the parent “engaged in conduct or knowingly

15
placed the child with persons who engaged in conduct which endangers the physical or

emotional well-being of the child.” Id. § 161.001(b)(1)(E). Although both grounds require proof

of endangerment, they are otherwise separate and distinct grounds. See A.S. v. Texas Dep’t of

Fam. & Protective Servs., 394 S.W.3d 703, 713 (Tex. App.—El Paso 2012, no pet.); In re

S.H.A., 728 S.W.2d 73, 85 (Tex. App.—Dallas 1987, writ ref’d n.r.e.).

The primary distinction between subsections (D) and (E) is the cause of the

endangerment to the child’s physical or emotional well-being. S.H.A., 728 S.W.2d at 85. Under

subsection (D), the focus is on “conditions or surroundings” that endanger the child, while under

subsection (E), the focus is on “conduct” that endangers the child. Id. Moreover, “[a] single act

or omission can support termination under subsection (D),” J.G. v. Texas Dep’t of Fam. &

Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.), while “termination

under subsection (E) must be based on more than a single act or omission; a voluntary,

deliberate, and conscious course of conduct by the parent is required.” C.B. v. Texas Dep’t of

Fam. & Protective Servs., 458 S.W.3d 576, 582 (Tex. App.—El Paso 2014, pet. denied).

Also, subsection (D) always requires proof of scienter, i.e., evidence that parents

“knowingly” placed or “knowingly” allowed their child to remain in endangering conditions or

surroundings. See In re T.H., 131 S.W.3d 598, 603 (Tex. App.—Texarkana 2004, pet. denied);

cf. In re I.D.G., 579 S.W.3d 842, 851 (Tex. App.—El Paso 2019, pet. denied) (“Scienter is not

required for an appellant’s own acts under Section 161.001(b)(1)(E), although it is required when

a parent places her child with others who engage in endangering acts.”). “Subsection D is not a

basis for terminating parental rights if the parent is unaware of the endangering environment.”

In re A.L.H., 468 S.W.3d 738, 746 (Tex. App.—Houston [14th Dist.] 2015, no pet.). “So, in

scrutinizing the endangerment finding, we focus not only on evidence of endangerment but also

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on evidence showing the parent’s awareness of the endangering environment.” In re J.E.M.M.,

532 S.W.3d 874, 881 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

The evidence at trial was that Mother had evaded arrest by driving, initially

without headlights on at night, at speeds over 100 miles per hour with her children in the car.

Mother first drove westbound on a state highway at this high rate of speed, then turned around

and travelled eastbound on the same highway and pulled over to wave at the pursuing officer as

if she was going to cease her efforts to evade arrest. Instead, Mother again drove westbound at

speeds over 100 miles per hour and did not stop until police deployed a deflation device that

deflated her tires and caused her to have to pull over. The arresting officer testified that her

speed was dangerous to herself, to the children, and to others. He stated that at that speed she

could easily have lost control of the vehicle and caused injury to herself and the children. He

also stated that animals roam near the roadway in that area making driving at a high rate of speed

even more dangerous. Mother testified that she knows she made a mistake and that her actions

were not “appropriate” for a parent. Mother stated that she reacted emotionally and did not make

a conscious decision to put the children in danger. Mother testified that “in her heart” she thinks

she did endanger the children by fleeing from the police, stating that she made a “dangerous and

bad decision.”

We conclude that the evidence is legally and factually sufficient to support a

finding that Mother knowingly placed the children in conditions or surroundings which

endangered their physical or emotional well-being so as to support a finding of endangerment

under subsection (D). See J.M.B.H. v. Texas Dep’t of Fam. & Protective Servs.,

No. 03-22-00661-CV, 2023 WL 2920315, at *5-6 (Tex. App.—Austin Apr. 13, 2023, pet.

denied) (mem. op.) (concluding that evidence that Mother allowed children to ride in car driven

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by intoxicated Father endangered children under subsection (D)); In re A.R.G., No. 04-19-00749-

CV, 2020 WL 1277739, at *3 (Tex. App.—San Antonio Mar. 18, 2020, no pet.) (mem. op.)

(concluding that evidence showing that “Mother drove with her children in her car while under

the influence of methamphetamines support[ed] the trial court’s finding that the children were

endangered, thereby jeopardizing their safety, within the meaning of subsection (D)”); In re

R.H., No. 10-17-00054-CV, 2017 WL 4293268, at *5-6 (Tex. App.—Waco Sept. 27, 2017, pet.

denied) (mem. op.) (concluding that children were endangered under subsection (D) when they

were inside Mother’s “disabled vehicle on the railroad tracks—a dangerous situation”). Because

section 161.001 requires proof of only one statutory predicate ground to support termination, see

A.V., 113 S.W.3d at 362, we need not consider whether the evidence is sufficient to prove that

Mother endangered the children under subsection (E); see Tex. R. App. P. 47.1.

Best interest

Mother challenges the legal and factual sufficiency of the evidence to support the

trial court’s best-interest finding. See Tex. Fam. Code § 161.001(b0(20. Relevant factors in

assessing the best interest of a child include (i) the desires of the child, (ii) the stability of the

home or proposed placement, (iii) parental abilities, (iv) the emotional and physical needs of the

child now and in the future, (v) the emotional and physical danger to the child now and in the

future, (vi) the plans for the child by the individual or agency seeking custody, (vii) the programs

available to assist the individuals seeking custody to promote the best interest of the child, (viii)

acts or omissions by the parent showing that the parent-child relationship was not proper, and

(ix) any excuses for the parent’s conduct. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.

1976); see also Tex. Fam. Code § 263.307 (stating that “prompt and permanent placement of the

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child in a safe environment is presumed to be in the child’s best interest” and listing factors that

court should consider “in determining whether the child’s parents are willing and able to provide

the child with a safe environment”). These factors are not exhaustive, no one factor is

controlling, evidence on each factor is not required, and evidence presented to satisfy the

predicate-ground finding may also be probative of the child’s best interest. In re C.H.,

89 S.W.3d at 27. “We must consider ‘the totality of the circumstances in light of the Holley

factors’ to determine whether sufficient evidence supports” the best-interest finding. In re

J.M.G., 608 S.W.3d 51, 54 (Tex. App.—San Antonio 2020, pet. denied) (quoting In re B.F.,

No. 02-07-00334-CV, 2008 WL 902790, at *11 (Tex. App.—Fort Worth Apr. 3, 2008, no pet.)

(mem. op.).

Some evidence in the record indicates that termination is not in the best interest of

the children. The record shows that the children are bonded with Mother; that Mother

“discourages bad behavior” by the children; and that Mother encourages them to make good

choices, be kind to each other, and listen to their placement. The CASA described Mother as an

active parent who is sometimes “overzealous.” Mother worked many of the services outlined in

the Department’s plan and stated that she has learned some coping mechanisms to use in

circumstances that frustrate her. Mother attempted to send school supplies to the children,

participated in in-person and video visitation with the children, and consistently sought

information from the Department about the children’s well-being. Until Mother’s Cousin

requested that Mother not contact her directly, Mother spoke regularly with this placement about

the children’s behavior, needs, and preferences. Moreover, Mother testified that her actions,

including acts of custodial interference and the high speed car chase were done in an attempt to

protect her children and keep them with her.

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But evidence in the record also supports a finding that termination is in the

children’s best interest. The children are placed with a relative and both the Department and

Mother agree that the placement is a good one. Mother has a history of removing her children

from CPS custody and taking other actions that have resulted in her incarceration. Mother has an

assault family violence charge against her arising out of an altercation with her aunt and a

cousin; there was no evidence that this case has been resolved. Mother had a relationship with

Frank’s father, a person who had been charged with injury to a child involving death and

dismemberment of the corpse. Although Mother denied knowing about the charges until she

learned of them later in a “news report,” a reasonable factfinder could disbelieve that Mother was

unaware of the charges, which resulted in a 37-year prison term for Frank’s father. Mother

testified that her relationship with Frank’s father caused New Mexico CPS to remove the

children from her care and described the action as “an unlawful taking of my children and a

backlash to [Frank’s father’s] criminal case.” Mother stated that Frank’s father “was not doing

anything wrong” when she was with him and that the CPS removal was “wrong.” A reasonable

factfinder could conclude that Mother was diminishing the seriousness of Frank’s father’s

egregious crimes resulting in the death and dismemberment of another child and the danger he

could present to the children. At trial Mother was inconsistent about her plans for the children

stating first that they would remain with her cousin and she would relocate to Kentucky to be

near them while she completed probation and “transition[ed] slowly” but later stating that she

planned to move with the children to Los Angeles to be with her current husband. Despite her

plans, Mother offered no testimony at trial regarding the husband, whom she married in 2022, or

what type of living conditions the children would be in if they moved to California with Mother.

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There was evidence that the children are thriving in their placement and that it can

be a long-term placement for them. The Department acknowledged that Mother had worked her

services but expressed concern about her ability to provide the children with a safe and stable

environment. The Department expressed concern about Mother’s sobriety, which it had not

confirmed because she moved out of the state and had not provided them with drug testing

comparable to what it would have required had she remained in Texas. The Department also

expressed concern about Mother’s hostility when communicating with the Department and the

placement and her unaddressed anger management and mental health issues.

Viewing the evidence presented at trial in the light most favorable to the trial

court’s finding, we conclude that a reasonable factfinder could form a firm belief or conviction

that termination of Mother’s parental rights was in the children’s best interest. Accordingly, the

evidence is legally sufficient to support the best-interest finding. Similarly, we are unable to say

that the evidence contrary to the finding is “so significant that the factfinder could not have

formed a firm belief or conviction” that termination of Mother’s parental rights was in the

children’s best interest. Consequently, the evidence is also factually sufficient to support the

finding. See Tex. Fam. Code § 161.001(b)(2); In re A.C., 560 S.W.3d at 630-31. We overrule

Mother’s challenge to the best-interest finding.

Conservatorship

Mother asserts that the evidence is legally and factually insufficient to support the

court’s finding that appointing Mother as the children’s permanent managing conservator is not

in their best interest. We have, however, already concluded that the evidence was sufficient to

support the trial court’s endangerment and best-interest findings. In this context, Mother does

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not have standing to challenge the portion of the decree appointing the Department as the

children’s managing conservator. See In re J.D.G., 570 S.W.3d 839, 856 (Tex. App.—Houston

[1st Dist.] 2018, pet. denied) (explaining that order terminating the parent-child relationship

divests parent of legal rights and duties with respect to child (citing Tex. Fam. Code

§ 161.206(b))); see also A.P. v. Texas Dep’t of Fam. & Protective Servs., Nos. 03-18-00780-CV,

03-18-00781-CV, 2019 WL 1342163, at *1 (Tex. App.—Austin Mar. 26, 2019, no pet.) (mem.

op.) (concluding in context of parents’ appeal from judgment terminating their parental rights,

that parent lacked standing to challenge trial court’s striking of grandmother’s petition in

intervention and collecting cases in which court concluded that appealing parents lacked standing

to complain of errors that did not injuriously affect them or that affected rights of others); In re

H.M.M., 230 S.W.3d 204, 204-05 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding

court lacked jurisdiction to consider mother’s appeal of trial court’s failure to grant sole custody

to her father after it terminated her parental rights). Further, once an appellate court overrules a

parent’s challenge to an order terminating the parent’s rights, the trial court’s appointment of the

Department as sole managing conservator may be considered a “consequence of the

termination.” See In re J.D.G., 570 S.W.3d at 856 (citation omitted). We overrule Mother’s

challenge to the trial court’s conservatorship finding.

CONCLUSION

We affirm the trial court’s order of termination.

__________________________________________
Karin Crump, Justice

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Before Chief Justice Byrne, Justices Crump and Ellis
Concurring in part, Dissenting in part by Justice Ellis

Affirmed

Filed: March 27, 2026

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