In the Interest of D.D.J.-C. and N.M.C.-J., Children v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00245-CV

IN THE INTEREST OF D.D.J.-C. AND N.M.C.-J., CHILDREN

On Appeal from the 287th District Court
Parmer County, Texas
Trial Court No. 11728, Honorable Kathryn H. Gurley, Presiding

February 4, 2025
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

Appellant M.J.-C. appeals the trial court’s termination of her parent-child

relationship with her children, D.D.J.-C. and N.M.C.-J.1 Mother raises the following

issues: (1) the evidence was insufficient to support a judgment of termination under

section 161.001(b)(1)(D) of the Texas Family Code; and (2) the evidence was insufficient

to support a judgment of termination under section 161.001(b)(1)(Q) of the Texas Family

Code. We reverse.

1 To protect the privacy of the parties, we refer to the children by their initials and to Appellant as

“Mother.” See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).
BACKGROUND

In July 2022, the Texas Department of Family and Protectives Services (the

“Department”) received an intake stating Mother had been arrested and there were no

appropriate caregivers for her children. Mother was arrested by federal authorities for

harboring illegal aliens in her home,2 none of whom were related to her children. The

Federal Bureau of Investigation informed the Department it intended to charge Mother

with a felony and then deport her upon her conviction due to her lack of legal status. In

November of 2022, Mother pleaded guilty to one count of the indictment. In March of

2023, she was sentenced to twenty-four months’ imprisonment. Before Mother’s

sentence was completed, she was transferred to Immigration and Customs Enforcement

for deportation.

The Department petitioned the trial court for conservatorship of the children and to

terminate Mother’s parent-child relationship with them. The final hearing was held in May

2024 after several delays. After conducting a hearing in which Mother appeared remotely

from an ICE detention center by phone call, the presiding associate judge found by clear

and convincing evidence grounds for termination existed under Texas Family Code

subsections 161.001(b)(1)(D), (E), (O), and (Q).3 She also found that termination was in

the best interest of the children under § 161.001(b)(2). Mother requested a de novo

hearing with the trial court, and during the pendency of the hearing, she was deported to

Guatemala. The trial court reviewed the record and held a de novo hearing and

2 See 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(B)(ii).

3 Further references to provisions of the Texas Family Code will be by reference to “section __” or

“§ __.”
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determined the basis for termination of Mother’s rights as subsections (b)(1)(D) and (Q).

It also found that termination was in the best interest of the children.4 The trial court

appointed the Department as the permanent managing conservator of the children.

APPLICABLE LAW

The Texas Family Code permits a court to terminate the relationship between a

parent and a child if the Department establishes one or more acts or omissions

enumerated under section 161.001(b)(1) of the Code and that termination of that

relationship is in the best interest of the child. See § 161.001(b)(1), (2); Holley v. Adams,

544 S.W.2d 367, 370 (Tex. 1976). The Due Process Clause of the United States

Constitution and section 161.001 of the Texas Family Code require application of the

heightened standard of clear and convincing evidence in cases involving involuntary

termination of parental rights. See In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012); In re

J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also § 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.”

§ 101.007. Only one statutory ground is needed to support termination, though the trial

court must also find that termination is in a child’s best interest. In re K.C.B., 280 S.W.3d

888, 894–95 (Tex. App.—Amarillo 2009, pet. denied).

STANDARD OF REVIEW

In a legal sufficiency challenge, we credit evidence that supports the judgment if a

reasonable factfinder could have done so and disregard contrary evidence unless a

4 The fathers’ parental rights were also terminated by the trial court. They have not appealed.
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reasonable factfinder could not have done so. In re K.M.L., 443 S.W.3d 101, 112–13

(Tex. 2014). However, the reviewing court should not disregard undisputed facts that do

not support the verdict to determine whether there is clear and convincing evidence. Id.

at 113. In cases requiring clear and convincing evidence, even evidence that does more

than raise surmise and suspicion will not suffice unless that evidence is capable of

producing a firm belief or conviction that the allegation is true. Id. If, after conducting a

legal sufficiency review, a court determines that no reasonable factfinder could form a

firm belief or conviction that the matter that must be proven is true, then the evidence is

legally insufficient. Id. (citing In re J.F.C., 96 S.W.3d at 266).

In a factual sufficiency review, a court of appeals must give due consideration to

evidence that the factfinder could reasonably have found to be clear and convincing. In

re J.F.C., 96 S.W.3d at 266 (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). We must

determine whether the evidence is such that a factfinder could reasonably form a firm

belief or conviction about the truth of the Department’s allegations. Id. We consider

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

that disputed evidence in favor of its finding. Id. If, in light of the entire record, the

disputed evidence that a reasonable factfinder could not have credited in favor of the

finding is so significant that a factfinder could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient. Id.

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ANALYSIS

Issue One: Evidence Supporting Termination under Subsection (D)

In her first issue, Mother contends there was legally and factually insufficient

evidence to support the termination of her parental rights under subsection (D), which

provides:

The court may order termination of the parent-child relationship if the court
finds by clear and convincing evidence . . . that the parent has . . . knowingly
placed or knowingly allowed the child to remain in conditions or
surroundings which endanger the physical or emotional well-being of the
child[.]

§ 161.001(b)(1)(D). Subsection (D) focuses on the children’s surroundings and

environment, and termination under this subsection requires that the children’s

environment was endangering to their physical or emotional well-being. In re N.M.L., No.

07-17-00310-CV, 2018 Tex. App. LEXIS 607, at *11 (Tex. App.—Amarillo Jan. 19, 2018,

pet. denied) (mem. op). “Endanger” means to expose to loss or injury or to jeopardize.

Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). A child is

endangered when the environment creates a potential for danger which the parent is

aware of but consciously disregards. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—

Fort Worth 2009, no pet.) (op. on reh’g). Inappropriate, abusive, or unlawful conduct by

persons who live in the child’s home or with whom the child is compelled to associate can

create an environment that endangers the physical and emotional well-being of the child.

In re A.F., No. 14-17-00394-CV, 2017 Tex. App. LEXIS 9814, at *22 (Tex. App.—Houston

[14th Dist.] Oct. 19, 2017, no pet.) (mem. op.).

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The Department alleges that Mother “endangered the children because she

jeopardized their physical and emotional well-being by exposing them to strangers and

illegal activity . . . .” This charge is premised on Mother’s conviction for violating 8 U.S.C.

§ 1324, which makes it a crime for any person who,

knowing or in reckless disregard of the fact that an alien has come to,
entered, or remains in the United States in violation of law, conceals,
harbors, or shields from detection, or attempts to conceal, harbor, or shield
from detection, such alien in any place, including any building or any means
of transportation . . . .

8 U.S.C.S. § 1324(a)(1)(A)(iii). Mother argues the Department failed to present any

evidence that Mother’s conduct in harboring illegal aliens created an environment that

endangered the children as contemplated by subsection (D).

Mother acknowledged that she did not know all of the other people who lived in

her home. According to Mother, they were there at the request of her cousin, who also

lived in the home. Mother indicated that unknown individuals began coming to the home

about three months before her arrest. Although Mother did not want to allow the unknown

individuals into the home, her cousin told her that she “needed to help him” and she was

afraid to refuse. She testified, “I don’t know who they are, and I didn’t know that they

were a danger. I never put my children in danger – in danger’s way.” Mother explained

that she never left her children alone in the home, stating, “I never just left them alone

there. I was always there with them, at that time. I was with them there at the house,

and we were closed in the room.” Mother testified that although she and the children

were under the same roof as strangers, her children were never unattended. Mother paid

a babysitter or left her children with a family member when she was at work, and when

she was not at work, she and her children remained separate from the other people in the
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house. Mother said that the other people in the home never hurt her children, either

physically or mentally.

Although Mother admitted that there were unknown individuals living under

Mother’s roof and that Mother was not always present, the caseworker acknowledged

that Mother stated that when “she was not there, there was somebody else there.” The

Department presented minimal evidence, other than speculative and conclusory

testimony, to suggest that the children were unsupervised or that other individuals in the

home had any access to or contact with Mother’s children. The Department’s witnesses

admitted they did not visit Mother’s home. They therefore could not testify regarding the

living arrangements or the conditions at the home. The Department did not have any

evidence that the children suffered from any physical or emotional abuse or neglect.

Testimony from the Department’s witnesses indicated that the Department’s

primary concern was the presence of strangers in Mother’s home:

Q: And is [the termination petition] based on the fact that [Mother] has
endangered her children by allowing them to be in conditions and
surroundings that were endangering to them?
A: Yes.
Q: And how did she do that?
A: By allowing strangers to come in and out of her home.
And:
Q: What conditions or surroundings endangered those children?
A: All of the unknowns in the house; all of the strangers living there for an
extended period of time, until they went somewhere else. Yeah, I think that
that’s the big one.
Q: So just because the children were around strangers, then the
Department’s position is that their physical or emotional well-being was in
danger?
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A: Yes.

The Department did not speak to the other persons arrested with Mother and did

not know the background or history of the people present in the home, including whether

they had any criminal history. When asked if she knew whether the people at the house

were dangerous, the caseworker answered, “I can’t confirm if they were or not, no.” She

admitted she had no evidence that they were dangerous. She acknowledged that there

was a “possibility” that they were “very good people.” The caseworker for the Department

acknowledged that the Department assumed that the children’s environment presented

a risk because of the lack of information about the other residents there:

Q: Are we just assuming, because they weren’t citizens, or resident aliens,
that they were dangerous people?
A: We’re making that decision based on the lack of information [Mother] had
on people living in the home.
Q: So it’s just an assumption. Correct?
A: Correct.

One caseworker testified that the Department believed Mother endangered her

children because of “[t]he risk of leaving the children in a home with strangers while she

was not present. The risk of being arrested. The risk of the children being left vulnerable

with no relatives named at the beginning and no place to go.”

The law provides that the Department’s allegations against a parent must be

supported by clear and convincing evidence; conjecture is not enough. See In re E.N.C.,

384 S.W.3d at 810. Showing that conditions have the potential to be dangerous is not

the same as showing endangerment by clear and convincing evidence. See, e.g., A.S.

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v. Tex. Dep’t of Fam. & Protective Servs., 665 S.W.3d 786, 795 (Tex. App.—Austin 2023,

no pet.) (where Department was “concerned” about domestic violence but failed to explain

nature of concerns or present evidence that domestic violence had occurred, court could

not conclude that any danger to children from such violence rose above mere suspicion

or speculation). For example, while a parent’s use of illegal drugs is both unlawful and

unsafe, like Mother’s criminal activity in this case, it does not inevitably establish

endangerment. In In re R.R.A., the Texas Supreme Court clarified the connection

between a parent’s drug use and endangerment of a child. In re R.R.A., 687 S.W.3d 269,

276–78 (Tex. 2024). The court concluded,

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. A reviewing
court should not evaluate drug-use evidence in isolation; rather, it should
consider additional evidence that a factfinder could reasonably credit that
demonstrates that illegal drug use presents a risk to the parent’s “ability to
parent.”

Id. at 278 (emphasis in original).

In this case, the Department did not establish the existence of circumstances

indicating that the conditions in the home endangered Mother’s children or presented a

substantial risk of harm. Had the Department established other facts, such as violence,

drug use, or other dangerous behavior by the other people in the household, or shown

that Mother left her children in the care of strangers, the outcome would likely differ. But

it appears that the Department did not investigate the home or the people in it. We are

reluctant to conclude that the mere presence of unknown individuals in Mother’s home,

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even individuals in the country illegally, in and of itself creates an environment that

endangered the physical or emotional well-being of her children.

We do not minimize the Department’s allegations or in any way condone the

circumstances that led to the children’s removal in this case. However, the Department

bore the burden to prove that the children’s surroundings endangered their physical or

emotional well-being or created a potential for danger which Mother was aware of but

consciously disregarded. On the record before us, we conclude the evidence is both

legally and factually insufficient to meet that burden. Therefore, we sustain Mother’s first

issue.

Issue Two: Evidence Supporting Termination under Subsection (Q)

Mother’s second issue challenges the sufficiency of the evidence supporting the

trial court’s finding under subsection (Q), which permits termination if the court finds, by

clear and convincing evidence, that the parent has been convicted of an offense and

imprisoned and unable to care for her child for not less than two years.

§ 161.001(b)(1)(Q); In the Interest of A.V., 113 S.W.3d 355, 360 (Tex. 2003). The

Department must prove both that the parent will be incarcerated or confined and unable

to care for the child for at least two years. In re H.R.M., 209 S.W.3d 105, 110 (Tex. 2006);

see In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.—Fort Worth 2004, no pet.) (“Proof that

[the incarcerated parent] is unable to care for [the child] is an additional requirement not

met by showing incarceration alone.”).

In this case, Mother does not dispute that she was convicted of harboring an illegal

alien and was sentenced to twenty-four months’ incarceration. She contends, however,

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that the record does not show that she was incarcerated or confined for two years, nor

does it establish that she was unable to care for her children for at least two years.

The Department filed its petition seeking termination of Mother’s rights on July 19,

2022. Therefore, under subsection (Q), the Department was required to prove that

Mother would be confined or imprisoned and unable to care for the children until July 19,

2024. See In re H.O., 555 S.W.3d 245, 252 n.6 (Tex. App.—Houston [1st Dist.] 2018,

pet. denied) (measuring subsection (Q)’s two-year time period from date of original

petition seeking termination). The evidence shows that Mother was sentenced in March

of 2023 and that by early 2024, she had been transferred to the custody of ICE. By the

time of the de novo hearing on July 22, 2024, Mother had been deported to Guatemala.

However, the record does not reveal the date of her deportation. Consequently, we see

no evidence to support a finding that Mother was confined or imprisoned for the requisite

two-year period ending on July 19, 2024.5

Further, under subsection (Q), the requirement of clear and convincing evidence

of an “inability to care for the child” is not met on the mere showing of prolonged

incarceration. In re J.G.S., 574 S.W.3d 101, 118 (Tex. App.—Houston [1st Dist.] 2019,

pet. denied). As we have explained,

[O]nce the Department has established a parent’s knowing criminal conduct
resulting in their incarceration for more than two years, the parent must
produce some evidence as to how they would provide or arrange to provide
care for the child during that period. When that burden of production is met,
the Department would have the burden of persuasion that the arrangement
would not satisfy the parent’s duty to the child.

5 The Department’s appellate brief does not address Mother’s challenge to termination of her rights

under subsection (Q).
11
In re Caballero, 53 S.W.3d 391, 397 (Tex. App.—Amarillo 2001, pet. denied) (op. on

reh’g); see also Brickley v. Joseph-Stephen, No. 03-22-00574-CV, 2023 Tex. App. LEXIS

1367, at *5 (Tex. App.—Austin Mar. 2, 2023, pet. denied) (mem. op.) (explaining three-

step burden-shifting framework of subsection (Q)).

Even assuming that the Department produced evidence of Mother’s criminal

conduct resulting in her confinement for two or more years, the burden would then shifted

to Mother to produce some evidence of how she would provide for the children during

that period. The record indicates that Mother had a support system in her native

Guatemala that would assist her and her children. Mother testified that her father, mother,

grandfather, sisters, and aunts live in Guatemala and are willing to help care for her

children. Additionally, Mother had a plan for supporting herself and her children when

she herself returned to Guatemala. See In re E.N.C., 384 S.W.3d at 806 (“Unlike an

incarcerated individual, a person who is deported is able to work, have a home, and

support a family. More importantly, it is possible for the person’s children to live with

him.”). Mother testified that she and the children would live with her father, who has a

four-bedroom house. She stated that there are schools “just 20 minutes away” and that

she would drop off her children and pick them up from school. She also said that there

were doctors, dentists, and counselors in the town. Mother planned to work so that she

could provide for her children. She testified that she had saved money and sent money

to Guatemala to start a store there. We conclude that this evidence was sufficient for

Mother to meet her burden of production.

Once Mother met her burden of production, the third step shifts the burden back

to the party seeking termination. See Brickley, 2023 Tex. App. LEXIS 1367, at *5. That
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party, in this case the Department, then had the burden of persuasion to show that the

parent’s provision or arrangement would not adequately satisfy the parent’s duty to the

child. In re J.G.S., 574 S.W.3d at 120. In this case, the Department directs us to no

evidence challenging Mother’s planned arrangements or indicating that her plans would

not adequately satisfy her duty to care for her children.

Therefore, we conclude the evidence is insufficient to support a finding that

Mother’s criminal conduct resulted in her “confinement or imprisonment and inability to

care for the child[ren] for not less than two years from the date of filing the petition” under

subsection (Q). We sustain Mother’s second issue.

CONCLUSION

Having found the evidence to be both legally and factually insufficient to support

the predicate grounds of subsections (D) and (Q), we reverse the trial court’s order of

termination as to Mother. We do not disturb other parts of the trial court’s order, including

the appointment of the Department as the children’s permanent managing conservator,

because Mother does not challenge any part of the order other than the termination of

her parental rights. See In re J.A.J., 243 S.W.3d 611, 617 (Tex. 2007).

Judy C. Parker
Justice

Doss, J., concurring.
Yarbrough, J., dissenting.

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