Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-26-00148-CV In the Interest of N.A.M., N.A.M., and G.M.M., Children On appeal from the 474th District Court of McLennan County, Texas Judge Nikki Mundkowsky, presiding Trial Court Cause No. 2024-2119-6 CHIEF JUSTICE JOHNSON delivered the opinion of the Court. MEMORANDUM OPINION Following a bench trial, the parental rights of M.R. (Mother) to the children, N.Ad.M., N.Av.M., 1 and G.M.M., were terminated. The parental 0F rights of R.M. (Father) to the children N.Ad.M. and N.Av.M., were also terminated. 2 Mother and Father appealed. 1F A. Background The original petition in this case was filed August 7, 2024, concerning Mother’s three children: seven-year-old twins N.Ad.M. and N.Av.M. and four- month-old G.M.M. G.M. was the acknowledged father of G.M.M., and the 1 We will use N.Ad.M. and N.Av.M. to distinguish between the children with the same initials. 2 The parental rights of G.M., father of G.M.M., were also terminated, but G.M. did not appeal. twins’ father was not initially known, but was later identified as Father. G.M. had two other children, eight-year-old A.M. and ten-year-old N.M., who lived in the home. B. Mother’s Appeal 1. Predicate Grounds The trial court found by clear and convincing evidence that Mother had violated Family Code subsections 161.001(b)(1)(D), (E), and (N), and termination was in the children’s best interest. See TEX. FAM. CODE ANN. § 161.001(b). In her first issue, Mother argues that the evidence is legally and factually insufficient to support termination under Subsections 161.001(b)(1)(D) and (E). In her second issue, Mother argues that the evidence is legally and factually insufficient to support termination under Subsection 161.001(b)(1)(N). The standards of review for legal and factual sufficiency of the evidence in cases involving the termination of parental rights are well established and will not be repeated here. See In re J.F.C., 96 S.W.3d 256, 264–68 (Tex. 2002) (legal sufficiency); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (factual sufficiency). In a bench trial, the trial court, as factfinder, is the sole judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). In the Interest of N.A.M., N.A.M., and G.M.M. Page 2 In a proceeding to terminate the parent-child relationship brought under Section 161.001 of the Family Code, the Department of Family and Protective Services (the Department) must establish by clear and convincing evidence two elements: (1) that the respondent parent committed one or more acts or omissions enumerated under subsection (b)(1), termed a predicate violation, and (2) that termination is in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b); In re J.F.-G., 612 S.W.3d 373, 381 (Tex. App.—Waco 2020) (mem. op.), aff ’d, 627 S.W.3d 304 (Tex. 2021). Proof of one element does not relieve the petitioner of the burden of proving the other. J.F.-G., 612 S.W.3d at 381. Termination of parental rights under subsections (D) or (E) requires proof of endangerment, which means to expose the child to loss or injury, or to jeopardize. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). The endangerment analysis under Subsection (D) focuses on evidence relating to the child’s environment to determine if the environment was a source of endangerment to the child’s physical or emotional well-being. In re M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009, no pet.). A child is endangered when the environment creates a potential for danger that the parent is aware of but disregards. Id. A parent’s conduct in the home can In the Interest of N.A.M., N.A.M., and G.M.M. Page 3 create an environment that endangers the well-being of a child. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Termination under Subsection (E) requires clear and convincing evidence that the parent has “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The relevant inquiry under subsection (E) is whether sufficient evidence exists that the endangerment of the child’s well-being was the direct result of the parent’s conduct, including acts, omissions, or failures to act. In re E.M., 494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied). However, it is not necessary that the parent’s conduct be directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at 533. To determine whether termination is necessary, courts look to parental conduct both before and after the child’s birth. In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.—Fort Worth 2004, pet. denied). Scienter is not required for a parent’s own acts to constitute endangerment under subsection (E). See In re L.S., No. 10-22-00119-CV, 2022 WL 3655395, at *2 (Tex. App.—Waco Aug. 24, 2022, no pet.) (mem. op.). It is also not necessary to show that the parent’s conduct was directed at the child or that the child suffered actual injury. Boyd, 727 S.W.2d at 533. The specific In the Interest of N.A.M., N.A.M., and G.M.M. Page 4 danger to the child’s well-being may be inferred from the parent’s misconduct alone. Id. Furthermore, we may consider conduct both before and after the child’s removal in an analysis under subsection (E). In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). If the endangering person is someone other than the appealing parent, then the parent generally must have known of the other person’s endangering conduct. T. D. v. Tex. Dep’t of Family & Protective Servs., 683 S.W.3d 901, 913 (Tex. App.—Austin 2024, no pet.). Mother argues that there was not clear and convincing evidence that she was physically abusing the children to support termination under Subsection (D) because her own actions constituted discipline. Mother also argues that there is a lack of support for termination under Subsection (E) because G.M.’s crimes occurred before she knew him, the danger to the children was removed when he was incarcerated, and there was no evidence that Mother had knowledge of G.M.’s crimes. Finally, she argues that the “restriction by the Department on Mother’s visitation should not allow for a termination on the (N) ground, for constructive abandonment.” The evidence here shows many circumstances relevant under Subsections (D) and (E). Because the evidence is interrelated concerning these two statutory grounds for termination, we consolidate our examination of the In the Interest of N.A.M., N.A.M., and G.M.M. Page 5 evidence as to both grounds. In re K.A.S., 131 S.W.3d 215, 222 (Tex. App.— Fort Worth 2004, pet. denied). Anna Smith, the Department Investigation Supervisor, testified about the initial involvement of the Department. She stated that there had been ongoing Department involvement starting in July 2024 because N.M. was hospitalized due to mental health concerns. In August 2024, law enforcement was called after N.M. had fled from the home to a nearby apartment and asked someone to call 911. Officers observed extensive bruising on her back, arms, legs, hands, face, and neck. N.M. told officers that Mother tried to drown her in the sink and beat her. During the investigation, officers also observed that A.M. also had extensive bruising on her buttocks, legs, and arms, and the bruising appeared to be in various stages of healing. N.M. and A.M. also had scratches and cuts on various parts of their bodies. Photos taken on scene and a couple hours later once the children were removed show the extent of N.M. and A.M.’s injuries. These photos were admitted into evidence during the trial. Law enforcement requested Department involvement due to the nature of the allegations. Mother was arrested for injury to a child. G.M. was not present at the time of the removal. Smith further testified that in forensic interviews, both N.M. and A.M. reported that Mother beat them with a wooden back scratcher on August 3, In the Interest of N.A.M., N.A.M., and G.M.M. Page 6 2024 and August 6, 2024, and both reported sexual abuse by their father, G.M. N.Ad.M. was also interviewed and described witnessing the beatings and the wooden back scratcher. N.Av.M. was not interviewed because she was non- verbal at the time and has Down Syndrome. G.M.M. was also not interviewed because she was approximately four months old. Mother was interviewed as part of the investigation. Mother initially stated that N.M. provoked her and was a manipulative child and that N.M. had told Mother she sexually abused the younger children which “set [Mother] off.” Mother admitted that she beat N.M. “longer than expected” because N.M. was moving around. She later denied causing the marks and stated N.M. and A.M. caused the injuries themselves. Mother also stated that she suspected an inappropriate relationship between N.M. and G.M. and noticed sexualized behavior and photos, but she did not take any action or report her suspicions. Smith stated that A.M. made her outcry to Mother on August 3rd and Mother was trying to get N.M. to outcry to her on August 6th. Additionally, despite both A.M. and N.M. needing medical attention, Mother had not sought medical attention for either child. Smith testified that the Department removed all five of the children from the home. Emily Tabor, a Department supervisor assigned to the case, testified regarding the ongoing involvement of the Department. She stated that the In the Interest of N.A.M., N.A.M., and G.M.M. Page 7 main concern of the Department was the outcries of sexual assault and lack of protectiveness by Mother. She stated that while Mother completed services and had housing and employment, the Department continued to have concerns related to the abuse and protective capacity. Tabor noted that Mother was inconsistent and contradictory in her communications with the Department. She gave the example that Mother originally said she was concerned about N.M. and A.M.’s behaviors and suspected inappropriate interactions with G.M., but then later Mother said N.M. and A.M. love G.M. and that he could not have done anything wrong to them. Tabor was also concerned by the testimony Mother gave at trial because it seemed that Mother had not learned anything from the services provided to her. Tabor expressed concerns about Mother’s lack of accountability and that Mother maintained that the children were lying about their outcries. Tabor testified that she had not seen any change in Mother’s behavior that would make Mother a safe, appropriate parent. As stated above, the Department’s initial concerns included physical abuse, lack of control, and lack of protectiveness by Mother. Based on the testimony from multiple witnesses, these concerns remained throughout the pendency of the case and were still concerns at the final hearing. Considering the evidence presented in this case in the light most favorable to the trial In the Interest of N.A.M., N.A.M., and G.M.M. Page 8 court’s finding and considering the evidence as a whole, we conclude that the evidence was legally and factually sufficient to support termination of Mother’s rights under Subsections (D) and (E). See TEX. FAM. CODE ANN. §161.001(b)(1). Because we have found that the evidence is sufficient to support at least one predicate ground, we do not address the sufficiency of the evidence as to Subsection 161.001(b)(1)(N). Therefore, we overrule Mother’s first and second issues. 2. Best Interest In her third issue, Mother argues that there was not clear and convincing evidence that termination was in the best interest of the children. In determining the best interest of a child, several factors have been consistently considered, which were set out in the Supreme Court of Texas’s opinion of Holley v. Adams. 544 S.W.2d 367, 371–72 (Tex. 1976). The Holley factors include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of In the Interest of N.A.M., N.A.M., and G.M.M. Page 9 the parent. Id. This list is not exhaustive but simply identifies factors that have been or could be pertinent in the best-interest determination. Id. at 372. There is no requirement that all these factors be proven as a condition precedent to parental termination. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The absence of evidence about some factors does not preclude a factfinder from reasonably forming a strong conviction that termination is in the child’s best interest. Id. In fact, while no one factor is controlling, the analysis of a single factor may be adequate in a particular situation to support a finding that termination is in the child’s best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). The Holley factors focus on the best interest of the child, not the best interest of the parent. Dupree v. Tex. Dep’t of Protective & Regul. Servs., 907 S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ). Mother argues that the Holley factors weigh against termination. Specifically, she argues that the desires and physical and emotional needs of the children would be met by her because her children know and love her, and she loves her children. She states that her parental abilities and stability of the home are adequate because she has maintained a stable residence and completed services. Finally, she argues that because G.M., A.M., and N.M. are In the Interest of N.A.M., N.A.M., and G.M.M. Page 10 no longer in the house, any continuing danger to the children has been removed. Regarding the emotional and physical danger to the child now and in the future, evidence of past misconduct or neglect can be used to measure a parent’s future conduct. See Williams v. Williams, 150 S.W.3d 436, 451 (Tex. App.—Austin 2004, pet. denied); Ray v. Burns, 832 S.W.2d 431, 435 (Tex. App.—Waco 1992, no writ) (“Past is often prologue.”). Evidence relating to the predicate grounds under Subsection 161.001(b)(1) may be relevant to determining the best interest of the child. See C.H., 89 S.W.3d at 28. In our analysis of the sufficiency of the evidence to support termination pursuant to Subsections 161.001(b)(1)(D) and (E), we have detailed Mother’s misconduct both leading up to the Department’s involvement and during the pendency of this case. The record shows that the Department’s concerns for the children’s safety at the outset of the case remained throughout the case and were still present at the time of the final hearing. Regarding Mother’s parenting abilities, the trial court was not required to measure Mother’s progress by completion of the service plan alone. See In re A.C.B., 198 S.W.3d 294, 298 (Tex. App.—Amarillo 2006, no pet.); In re A.N.S., No. 04-25-00808-CV, 2026 WL 2254584, at *7 (Tex. App.—San Antonio Aug. 5, 2026, no pet. h.). Instead, it could evaluate whether those services In the Interest of N.A.M., N.A.M., and G.M.M. Page 11 translated into improved parenting abilities and greater protective capacity. See In re R.P., 708 S.W.3d 723, 731 (Tex. App.—San Antonio 2024, no pet.); In re A.C.B., 198 S.W.3d at 298. As previously discussed, Tabor testified regarding the Department’s ongoing concerns with Mother’s lack of accountability and protectiveness. Specifically, the evidence shows that Mother continued to minimize her own role in the reasons for removal and maintained that the children were lying in their outcries. Overall, the trial court was entitled to weigh Mother’s assertions against her continued minimization of the abuse allegations, her lack of accountability, and the Department’s continued safety concerns persisted throughout the case. Viewing the evidence under legal and factual sufficiency standards, we conclude a reasonable factfinder could have formed a firm belief or conviction that termination of Mother’s parental rights was in the children’s best interest. As such, we cannot say that the evidence is insufficient to support the trial court’s best interest finding. Therefore, we overrule Mother’s third issue. C. Father’s Appeal On May 26, 2026, Father filed a “Motion to Withdraw Appeal,” asking this Court to dismiss his appeal in this case. See TEX. R. APP. P. 42.1(a)(1). Dismissal of this appeal would not prevent another party from seeking relief In the Interest of N.A.M., N.A.M., and G.M.M. Page 12 to which it would otherwise be entitled. See id. Father’s motion to withdraw his appeal is therefore granted, and his appeal is dismissed. D. Conclusion Having overruled Mother’s issues, we affirm the trial court’s order of termination. Additionally, Father’s appeal is dismissed. MATT JOHNSON Chief Justice OPINION DELIVERED and FILED: September 30, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed Motion granted; Appeal dismissed CV06 In the Interest of N.A.M., N.A.M., and G.M.M. Page 13