In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-26-00186-CV
IN THE INTEREST OF M.T., H.T., R.T., K.T., AND G.T., CHILDREN
On Appeal from the 322nd District Court
Tarrant County, Texas
Trial Court No. 322-732902-23
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
Mother,1 acting pro se, raises eight issues in this appeal from a jury’s findings
that her parent–child relationships with five of her six children should be terminated
in this suit affecting the parent–child relationship (SAPCR) filed by the children’s
Father.2 Because we overrule her dispositive issues, we affirm.
Sufficiency Issues3
For a trial court to terminate a parent–child relationship, the party seeking
termination must prove at least one predicate-conduct ground and that termination is
in the child’s best interest. Tex. Fam. Code § 161.001(b)(1), (2); In re Z.N., 602 S.W.3d
541, 545 (Tex. 2020). Here, the jury found as predicate-conduct grounds that Mother
had (1) endangered her children according to Family Code Section 161.001(b)(1)(D)
and (E) and (2) used a controlled substance in a manner that endangered the health or
safety of the children and either failed to complete a court-ordered substance abuse
treatment program or, after completion of a court-ordered substance abuse treatment
program, continued to abuse a controlled substance. The jury also found that
1
To protect the identities of the children in this case, we refer to the parties by relationship and to the children by fictitious names. See Tex. Fam. Code § 109.002(d).
2
By the time of trial, David, the oldest, was already eighteen and not a subject of the SAPCR.
3
We dispense with a background-facts discussion because we set forth those facts in our discussion of the evidence’s sufficiency to support the jury’s findings.
2
terminating the children’s parent–child relationships with Mother was in their best
interest. Mother challenges these findings in her first, second, and fifth issues.
Standard of Review
To determine whether the evidence is legally sufficient to support a Section
161.001(b) finding, we look at all the evidence in the light most favorable to the
challenged finding to determine whether a factfinder could reasonably form a firm
conviction or belief that the finding is true. In re R.R.A., 687 S.W.3d 269, 276 (Tex.
2024). In reviewing factual sufficiency of the same finding, we perform “an exacting
review of the entire record,” In re A.B., 437 S.W.3d 498, 500 (Tex. 2014), to determine
whether a factfinder could reasonably form a firm conviction or belief that the
Department proved the finding, In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). We may not
substitute our judgment for the factfinder’s “when considering the credibility of the
evidence presented.” R.R.A., 687 S.W.3d at 276. However, we also may not disregard
undisputed facts that do not support the finding. In re J.W., 645 S.W.3d 726, 741 (Tex.
2022).
Applicable Law–Endangerment
Subsections (D) and (E) of Family Code Section 161.001(b)(1) are the
endangerment predicate-conduct grounds. Subsection (D) authorizes termination
when a parent has knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endanger the child’s physical or emotional well-being.
Tex. Fam. Code § 161.001(b)(1)(D). To terminate a parent’s rights under Subsection
3
(E), the court must find by clear and convincing evidence that the parent has engaged
in conduct or knowingly placed the child with persons who engaged in conduct that
endangers the child’s physical or emotional well-being. Id. § 161.001(b)(1)(E).
To endanger means to expose a child to loss or injury or to jeopardize a child.
R.R.A., 687 S.W.3d at 277. Endangerment involves “more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family environment,
[but] it is not necessary that the conduct be directed at the child or that the child
actually suffers injury.” Tex. Dep’t of Hum. Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987). “A finding of endangerment is supported ‘if the evidence . . . shows a course of
conduct which has the effect of endangering the physical or emotional well-being of
the child.’” In re C.E., 687 S.W.3d 304, 310 (Tex. 2024) (quoting Boyd, 727 S.W.2d at
534).
The primary distinction between subsections (D) and (E) is the source of the
endangerment to the child. In re J.D.B., 435 S.W.3d 452, 463–64 (Tex. App.—Dallas
2014, no pet.) (citing Castaneda v. Tex. Dep’t of Protective & Regulatory Servs., 148 S.W.3d
509, 522 (Tex. App.––El Paso 2004, pet. denied)). Subsection (D) addresses the
child’s surroundings and environment while subsection (E) addresses parental
misconduct. Id. at 463.
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical or emotional well-being was the direct result of
the parent’s conduct, including acts, omissions, or failures to act. In re E.M.,
4
494 S.W.3d 209, 222 (Tex. App.—Waco 2015, pet. denied). “Evidence of illegal drug
use or alcohol abuse by a parent is often cited as conduct which will support an
affirmative finding that the parent has engaged in a course of conduct which has the
effect of endangering the child.” In re E.A.A., No. 12-26-00088-CV,
2026 WL 2122874, at *5 (Tex. App.—Tyler July 22, 2026, no pet. h.) (mem. op. on
reh’g); In re J.T.G., 121 S.W.3d 117, 125–26 (Tex. App.—Fort Worth 2003, no pet.)
(“Drug addiction and its effect on a parent’s life and ability to parent may establish an
endangering course of conduct as well.”). In addition, generally, “conduct that
subjects a child to a life of uncertainty and instability endangers the physical and
emotional well-being of a child.” In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort
Worth 2004, pet. denied).
Applicable Facts–Endangerment
Trial in this case began at the end of January 2026 and continued into February.
It was undisputed that Mother has a history of drug and alcohol abuse. It was also
undisputed that Mother had been sober from February 2025 until the trial. According
to Mother, this was her longest period of sobriety since her October 2020 divorce
from Father. Before that, her longest period of sobriety since the divorce had been six
months.
Mother and Father’s agreed divorce decree gave Mother visitation with the
children every other weekend provided that she continued to have clean hair-follicle
5
drug tests.4 Mother’s first visit was delayed because she was not able to provide a
clean test; however, she was able to have her first visit with the children on December
17, 2020.
December 2020 Incident
After Father dropped the children off for their December 17, 2020 visit with
Mother, the children called and texted Father on their cell phones, and he tried to get
them to stop and visit with Mother. However, “[a]t some point, they expressed
concern” about Mother’s behavior. Father agreed to “stay up” with them “until
everything kind of settle[d] down.” He called the police after the second oldest child,
Grace, called him with the “highest tenure [sic] of fear and helpless[ness].” Sometime
between 1:00 and 2:00 a.m. on December 18, Father called 911 and drove to Mother’s
house.
When the first Mansfield police officer, Cameron Sly, arrived around 2 a.m.,
the children came running out of Mother’s house toward his patrol car. “They were
scared for dear life” and crying; however, they did not have any visible injuries. One
of the children said, “Mommy is trying to kill me.” “[T]here was talk[] of a gun,” so
the children were placed in the patrol car. Other Mansfield police officers responded
as well.
The decree also provided that the children were not to have any contact with
4
Mother’s then-boyfriend, whom she later married in 2021. We refer to him in this memorandum opinion as Husband.
6
The children told Officer Sly that they had crawled out of the window in a
bedroom that they had been locked into because the door did not have a doorknob
and they could not get out through it. Mother was “screaming inside the house”
before officers went inside. Officer Sly testified that the house was “in complete
disarray, trash everywhere, things knocked over, things broken, dirty,” and it had “a
distinguished smell that no -- no -- no normal person would want to smell on a
normal day.” There was also broken glass on the ground.5 Officers had to force the
children’s bedroom door open.
It was “immediately apparent” to Officer Sly that Mother was “heavily
intoxicated by some type . . . of narcotic and/or alcohol.”6 According to Officer Sly,
“any person in an intoxicated state can’t make sound judgments,” and Mother could
not have safely driven her children that night if she had needed to do so.
When Father arrived, the children were relieved and immediately wanted to
leave with him. The police released the children to Father. When Father talked to
Mother the next day, she did not explain anything but simply demanded that Father
return the children to her. According to Father, at that time Mother was “slurring,
very belligerent, blaming the children for the situation[, and] blaming [their] oldest son
5
Officer Sly testified, “No child should have to go through that, what those children experienced that night and being inside the residence in those conditions.”
6
At trial, Mother admitted that she had drunk alcohol in the children’s presence that night and that at one point she had passed out on the couch.
7
from stealing from her[, and she] then threatened to sue . . . for custody of the
children.”
Father testified at trial that having to crawl out of the window had a “[v]ery
negative” effect on the children’s mental health. He thought that Mother had
endangered the children.
Officer Sly referred the case to CPS.7
Subsequent CPS Involvement and May 13, 2021 Incident
CPS opened an investigation, during which Mother was receptive. Mother told
the CPS investigator that she was sorry for what had happened, and she admitted that
she had been drinking that night and had used heroin three months before that and all
of the prior summer. Mother explained that she had relapsed on alcohol because she
was nervous about having possession of the children. However, Mother denied
having locked the children in the bedroom––according to her, the doorknob had
broken––and she “denied remembering whether or not she [had] told her oldest son[,
David,] to kill [then] 11-year-old, [Grace].” The investigator met with Father and the
children as well. According to the investigator, “[e]ach of the children reported in
7
CPS is an acronym for Child Protective Services, a subdivision of the Department of Family and Protective Services. In re N.L., No. 02-25-00205-CV, 2025 WL 3008022, at *10 n.20 (Tex. App.—Fort Worth Oct. 27, 2025, no pet.) (mem. op). We refer to both CPS and the Department in this memorandum opinion, along with some of the services provided, including Family Based Safety Services (FBSS).
8
their own way to be fearful of the mom in . . . one way or another. Mom would yell at
them, was mean to them. They feared that mom was going to kill them.”
The investigator found reason to believe8 for neglectful supervision and put a
safety plan into place.
Although another investigator who examined Mother’s home was not
concerned about its condition, the investigator who met with Mother was concerned
that Mother “did not want to give up alcohol completely and didn’t see a need to.”
Mother also “seemed to be making some excuses still.” The investigator was
concerned about Mother’s not wanting to stop drinking “[b]ecause of the gravity of
danger that the kids were in when she chose to drink.”
CPS put a new visitation plan with the children into place. Starting in January
2021, Mother was to have supervised visits with the children every other weekend.
CPS also required Mother to drug test. An FBSS representative who began working
with Mother testified that the primary concern after assessment was Mother’s drug
and alcohol usage. The FBSS representative wanted Mother, Father, and the children
to attend counseling, and she wanted Mother to address her mental-health concerns.
Mother attended some counseling, and “[t]he counselor reported that [Mother] would
After investigating allegations of child abuse or neglect, CPS will assign one of
8
five possible dispositions: (1) reason to believe (based on a preponderance of the evidence); (2) ruled out; (3) unable to complete; (4) unable to determine; or (5) administrative closure. In re K.N., No. 02-25-00438-CV, 2026 WL 478943, at *5 n.11 (Tex. App.—Fort Worth Feb. 19, 2026, pet. denied) (mem. op.).
9
probably need counseling for most of her ongoing life . . . just to battle that sobriety
and the mental health issues that she had.”
From February 2021 to August 2021, Mother “went in and out of detox
probably three to four times.” “Her progress was . . . up and down where it looked
like she would sometimes be making progress and then she would backslide and”
admit to drinking. Father, on the other hand, complied with the Department’s
requests and “was ensuring the children’s safety.”
During the first part of 2021, the children’s safety plan initially prohibited
unsupervised and overnight visits with Mother, but Mother was able to work her way
up to unsupervised visits based on her counselor’s recommendation. However, when
Father picked the children up after Mother’s first unsupervised visit on May 13, 2021,
she was intoxicated.
Mother admitted to the FBSS representative that she had drunk alcohol the day
of that visit. The children “reported that [Mother] was carrying a cup around,” and
“[t]hey didn’t know what the substance was inside the cup.” One of her sons, John,
told the FBSS representative that Mother had put her hands around his neck at that
visit. Mother denied having done so, however. The FBSS representative thought that
after this May 2021 incident, the children appeared to be scared to visit with Mother.
As a result of this incident, the Department modified the safety plan for
Mother. Mother had to go back to two-hour-long supervised visits with the children
as well as submit to regular drug and alcohol testing. She could not consume alcohol
10
within twelve hours before a visit or during a visit, and she could not attend visitation
unless a Breathalyzer showed that she had no alcohol in her system.
Mother’s 2021 Police Encounter
A Mansfield police officer testified to a May 14, 2021 encounter that he had
with Mother as the result of a 911 hangup call. The children were not present during
this incident. Mother told the responding officer that Husband had struck her in the
face and then taken her cell phone when she called 911. Mother also told the officer
that Husband had choked her9 until she urinated on herself and lost consciousness
and that her relationship with Husband involved “a pattern of abuse and coercive
control.” Mother told the officer that Husband demeaned her, called her names, and
controlled her access to money. Mother said that she used alcohol and methadone to
deal with Husband’s abuse.
Nevertheless, Mother was “extremely reluctant” to give the officer any
information and appeared to be trying to protect Husband. The officer noted that
Husband “had already yelled at her while [the police] were there on scene that she
didn’t need to tell [him] anything, not to talk to [him], and . . . basically told her to
stop providing her testimony to” him. Husband was arrested for continuous family
violence and called Mother collect from the jail while Mother was still being
9
Mother provided the officer with “cell phone photographs of her neck and bruising around her neck area.” The officer also saw redness on Mother’s face.
11
interviewed at the house. The responding officer suspected that Mother was going to
bail Husband out.
Mother was upset that night, but it was hard for the responding officer to tell
whether she was intoxicated. According to the responding officer, Mother’s house
was in disarray, with multiple holes in the wall, a broken door frame, and “multiple
signs of violent interactions throughout the home.” There were empty alcohol
containers throughout the house, as well as trash bags with empty cans in them.
Photographs of the scene were admitted into evidence.
The responding officer testified that he believed––from “the level of violence
and course of control . . . observed, not only in [Mother’s] injuries that day and then
the photographs that she showed [him] on her cell phone but also the signs of
violence in the house”––that Mother “was in continuous danger as long as she
remained in a relationship with” Husband. The officer completed a protective-order
packet on Mother’s behalf, but she was not receptive to getting a protective order.
Mother later told the FBSS representative that she was going to lie to the court
and say that she was the aggressor in this incident. This did not occur because the
charges were dropped after Mother told law enforcement that Husband should not be
prosecuted.
FBSS Case Closed
FBSS closed its case in August 2021 because Father was being appropriately
protective of the children. During a pre-case-closing interview with the FBSS
12
representative, the children appeared to be nervous and anxious at the prospect of
visits with Mother. John said that when he was younger, he thought he had a good
mom, but that was because he did not know any better. He had since learned that
moms were not supposed to act like Mother had, and he did not think that she ever
would change. When the representative indicated that the case would be closing, the
children expressed their belief that CPS would be back in their lives.
December 2022 Incident
Father and Mother entered into an amendment to the visitation schedule “with
the idea of restoring full visitation rights to [Mother] as she continue[d] to provide a
safe environment for the children during visits.” The amendment provided for a
stair-step plan under which Mother would start with supervised visits and work her
way up to unsupervised visits. To work her way up, Mother had to provide clean drug
tests, and she had to blow into a Breathalyzer before and after visits.
According to Father, Mother did not consistently work her way through the
stair steps; she would move up and down. He did not “recall the number of times that
she fell completely back down[] but that [it] was almost immediately when the plan
was put in place.” Father said that the only times he denied Mother access to the
children was when she failed a drug test. A couple of times, Father supervised a visit
as a favor because Mother showed up without a supervisor. In August 2022, Mother
provided Father with documentation that she had taken a drug test that was positive
13
solely for methadone.10 Thus, in October 2022, Mother was able to obtain
unsupervised visitations again.
On December 10, 2022, Mother scheduled a visit11 at a hotel off I-35 instead of
at her home because, according to Father, “[s]he had mentioned [that] there may
[have been] issues with [Husband’s] leaving the residence, not having a place for him
to go to accommodate the visits, and that this was just going to be easier for them.”12
After dropping off the children,13 Father got a phone call from the hotel that caused
him extreme concern, and he called the police when he could not get Mother to pick
up a call.
Father found the children outside the hotel under a street lamp carrying some
of their belongings. Using the children’s key card, he went into the hotel room to get
the rest of their belongings; Mother was not there. He saw a “half empty wine bottle,
During discovery in this suit, Mother provided Father with a drug-test result
10
from the same lab, collected on the same date, with the same specimen number, which showed that instead of being positive solely for methadone, the test was positive for amphetamine, opiates, codeine, morphine, heroin, methadone, EDDP, and Tramadol. See Crawford v. State, 496 S.W.3d 334, 338 (Tex. App.—Fort Worth 2016, pet. ref’d) (EDDP is methadone metabolite). Father testified that he would not have let the children attend the December 2022 visit with Mother had he known about this test result. Mother admitted at trial that she had faked a clean drug test.
11
This was Mother’s second or third unsupervised visit since regaining them.
At trial, Mother testified that she made this alternative arrangement because
12
she “did not want to be at the house where there was drug use.”
13
Mother testified that John was not present for this visit.
14
empty vodka bottle, jar HTC [sic] gummies that were half empty, and then a couple of
bottles of medication, one [of which] was not prescribed to her.” When Father went
back to the hotel’s front desk, the attendant was talking on the phone to Mother.
Father took the phone, and Mother said “that she [had] really messed up” and “didn’t
want to get in trouble” or “have the children taken away.” Father had to convince her
to come back to the hotel. Mother told Father that she was going to get help.
According to Father, the children were scared; Grace was in tears and
“extraordinarily hurt and shaken.” She needed counseling after that night.
A Fort Worth police officer who responded testified that Grace and Father had
reported that Mother was intoxicated and threatening suicide. He talked to Grace,
who “was actually the one that dealt with most of the brunt of whatever the situation
was at the time being in that room.” Grace was worried about her younger siblings
and Mother.
The officer’s bodycam was admitted into evidence. Grace told the officer that
Mother had started to act strangely––emotional and crying––and Grace asked her if
she had been drinking. Grace asked Mother to take a Breathalyzer; Mother attempted
to blow into it but was evasive. Mother accused Grace of finding the alcohol she had
brought in her suitcase. She also hung up the phone when Grace tried to call Father.
According to Grace, Mother got in her face until Grace’s brother pushed her away.
Mother told Grace the dispute was all her fault and that she would kill herself, and it
15
would be Grace’s fault that the children would never see her again. However, Grace
stated that she did not think that Mother would actually have committed suicide.
According to the officer, when he went to the room to look for Mother, the
hotel room was “in shambles [with] crap everywhere,” but he did not see any alcohol
or other substances. He interviewed then fifteen-year-old David, who had been
staying in a room next door; David said that he “could hear . . . the screaming and
hollering from the other room.” David had asked his siblings to leave the room so as
not to be exposed to what was happening with Mother and Grace, who was thirteen
at the time. The officer did not see any physical injuries on the children.
Mother was gone for about an hour.14 When she showed up at the hotel,
Mother admitted that she had been drinking; she pleaded “to . . . get some type of
alcohol or detox facility to get the help she needed.” Before Mother left, the
responding officer allowed her to retrieve “the gummies that she had mentioned
outside.”15 They were “within the room” and “reachable.” Mother threw the gummies
out and then left with MedStar that night.
A different CPS investigator investigated the December 2022 incident. The
children told the investigator that Mother had threatened to commit suicide. They also
14
According to Mother’s trial testimony, she just went around the corner to hide from the children but kept an eye on them.
15
Mother referred to them as Delta-8 gummies.
16
said that Mother had “appeared to be under the influence of alcohol,” “charged at one
of the children,” and told them to “leave the . . . motel room.”
Mother admitted to the investigator that she had “messed up and that she took
full responsibilities of her action.” She said she wanted help, so the Department
offered her community resources. However, the Department closed its case because
Father was able to care for the children. As the investigator explained, “When we
close out a case with a protective caregiver or parent involved, the children are more
than likely . . . in the care of that protective caregiver or parent and the Department
leaves it to them to make sure the children remain safe.” The Department made a
reason-to-believe determination for neglectful supervision by Mother.
This was Mother’s last unsupervised visit with the children. Father testified that
the police interaction had a negative effect on the children, but he added that,
“unfortunately, they’re so familiar with interfacing with officials that that particular
piece didn’t affect them as much as you would think.” Later, during play therapy,
Arthur expressed that having police officers present when he visited with Mother
would make him feel safe.
2023 Through February 2025
Mother testified at trial that she had last used heroin in March 2023. Father
filed his petition to terminate Mother’s parental rights in May 2023. In July 2023,
Mother had a drug test that was positive for amphetamine, methamphetamine,
morphine, and codeine. Her August and September 2023 tests were positive for
17
methamphetamine and amphetamine. Mother’s last positive drug test was in October
2023.
In December 2024, an Arlington police officer encountered Mother when
responding to a welfare check for a possibly suicidal person. Mother was distraught,
crying, and said she needed help. She was clearly intoxicated and said that she had
been drinking because her children had been taken away from her. The officer took
Mother to JPS and checked her into the emergency room.
February 8, 2025 Library Incident
Diana Torres, a Tarrant County Family Court Services contractor, supervised
Mother’s visits with Arhtur, Greg, and Darlene from February 2024 to February 2025.
Torres testified that during most of the visits, Mother was loving and attentive, and
the children were happy to see her and wanted the visits to be longer.
The last visit Torres supervised was at the Arlington Public Library. According
to Torres, Mother’s behavior that day was different than it had been before; she was
acting “weird,” and it “appeared like she couldn’t walk in a straight line.” Mother
“talked to every person that she saw,” made inappropriate comments, and tried to
touch other people’s children without their permission.16 Even the children asked
Mother why she was acting weird. However, Torres could not smell alcohol or
marijuana on Mother.
Mother testified that she was “just very interactive” with the other children in
16
the library, “giving them high-fives.”
18
Torres testified about a specific odd instance of behavior:
We walked outside to a little water fountain outside of the public library
where she and [Greg] appeared to be discussing something that looked
private. When I approached -- I was there waiting, and I asked her what
they were talking about, because they were whispering and they are not
allowed to do that during a supervised visit, and she did not want to tell
me. And I asked her multiple times not to whisper and that they had to
tell me what the conversation was about, and she started repeatedly
saying suicide louder until she yelled the word suicide. And she did not
go into detail about that. But I told her that whispering was not allowed
or I would have to end the visit early.
Mother continued to have bizarre interactions with other library patrons. She
got into the fountain with her shoes and socks on. Mother was never alone with the
youngest child, Darlene, but she did have one of the boys, Arthur, sit on her lap.
Torres testified that she had to leave Mother and the children unsupervised in
the computer section for a couple of minutes so that she could use the restroom. She
considered ending the visit early, but at first she thought Mother was just being silly
and trying to make the children laugh. When she realized something was very wrong,
there was only about fifteen to twenty minutes left in the visit.
Arthur had an emergency session with his therapist after the library visit. He
was “fearful, angry, and upset.” Arthur
shared . . . that while sitting on mom’s lap she was moving her hand up
his leg towards his groin and he lifted himself up to get her to stop and
then he sat back down in her lap where then she proceeded to move her
hand up his leg again and touched his groin and he became very
uncomfortable and then removed himself from mom’s lap all together.
19
Arthur told the therapist that this happened at the library near some computers.
Arthur “was . . . crying a little bit.” He expressed fear that Mother “was going to come
and take him.” The therapist had never seen Arthur like that.
Greg shared with the therapist that Mother was acting “weird” at the library
visit, and he was concerned because Mother kept asking if the children would miss
her if she were gone. Darlene was confused and uncomfortable. She could see that
Mother “was vaping during the visit where the supervisor couldn’t see it.”
The therapist reported what Arthur had told her to CPS, but CPS made a
ruled-out disposition. Notes from CPS interviews with Arthur, Greg, and Darlene
were admitted into evidence; they contain the notation that the “outcry did not rise to
the level of sexual abuse” and that a police detective had determined that “there was
no offense.”
After the library incident, Mother’s visits with the children were immediately
suspended. She was able to resume visits with the youngest three children in June or
July 2025, but the older two voluntarily declined to attend any more visits with
Mother thereafter.
At trial, Mother testified that she had lied to CPS in March 2025 when she said
that she was not under the influence of any drugs or alcohol at the library visit. But
she adamantly denied the allegation that she had touched Arthur inappropriately.
When asked about her reaction to the allegation, Mother testified,
20
I have been with my kids their whole lives, and if I was going to do that,
it would have already happened. Why would I do that in public? And
why was there never any accusations? Because if someone’s got a sick
mind, they’re not going to try it the first time at a supervised visit.
February 2025 Police Interactions
Father presented evidence from a then-Burleson police officer who
encountered Mother in February 2025 when responding to a “disturbance for an
intoxicated individual walking around the neighborhood.” Mother showed signs of
intoxication, and the officer was concerned for her well-being. Mother mentioned
several times that she was going to kill herself and at least once threatened that she
would try to do it in the back of the police car. When Mother was arrested, she
admitted that she had been arrested for public intoxication twice the week before.
An Arlington police bodycam video from a February 14, 2025 interaction with
Mother was admitted into evidence and published to the jury. Over the course of the
video, Mother, who was intoxicated, became increasingly agitated and began
screaming obscenities and derogatory comments at Husband and the police. As her
friend Anne put it, “She was spewing stuff. . . . [I]t was not pretty.”
At trial, Mother admitted that she had relapsed on alcohol in February 2025,
and she attributed the relapse to her hopelessness about the case after meeting with
the children’s ad litem.
21
Grace and John knew about Mother’s February 2025 public-intoxication arrests
because they knew how to find that information online and had looked up Mother’s
arrest records. Father denied having shown them how to do so.
Mother’s Improvement
Mother had ten negative drug tests between October 2023 and January 2026.
She was able to start one-hour weekly supervised visits at the Tarrant County
courthouse with the younger three children––Greg, Arthur, and Darlene. A
courthouse visitation center employee who supervised five of the visits testified that
Mother was “really good with the kids. They’re always joking around. You know,
sometimes they get a little too loud and she has to tell them, like, hey, you know, keep
it down, there’s more people in here. But for the most part they have good visits.” At
the first visit, the children were “a little nervous, but after that they were fine.”
Mother was attentive to the children, and the quality of their visits was good––the
children looked happy and were smiling and laughing. The employee had no safety
concerns.
Mother testified that she had been sober since late February 2025 and that she
had been to inpatient treatment either that February or March. She took a
Breathalyzer test before each visit with the children: at 9:00 p.m. the night before, at
8:00 a.m. and 2:00 p.m. on the day of, and fifteen minutes before the visit’s start.
According to Mother, this Breathalyzer program was different than the one she had
been using before because it took video of her testing. She testified that she would
22
not be able to fake a negative test with it and that she could no longer fake a drug test
because those results were sent directly from the lab to Father’s attorney.
Overall Effect on Children
The children started counseling in mid-2023. Because they were so angry and
upset about Mother’s behavior, Grace and John had voluntarily stopped attending
visits with Mother around October 2023. As Father explained, “It just is a repeated
cycle that really has hurt the children so much that the three eldest just - - they don’t
want to be hurt anymore.” After the February 2025 library incident, the younger three
were sad, “but there was tremendous relief that they weren’t going to have to go back
for awhile.”
According to Father, Grace struggled the most with the prospect of seeing
Mother: “even just mom appearing at an event would trigger her.” She sometimes
avoided her siblings’ activities to avoid any kind of contact with Mother. The younger
three children wanted to see Mother at their extracurricular activities,17 but only
Darlene, the youngest, was excited about the prospect. All of the older children were
worried at the thought. Father agreed that the litigation had been stressful for all of
the children.
Grace’s therapist testified that Grace “was very fearful, fearful for her life [and]
her siblings’ lives,” due to Mother’s intoxicated behavior. In therapy, they had worked
17
Father testified that Mother had not been able to attend extracurricular activities since February 2025.
23
intensely on processing the two December events, and Grace needed more therapy at
Christmas time. After the December 2020 visit, Grace “said that she wanted to
protect [her siblings] at all costs and make sure that she could get them to safety.”
Grace told her therapist that she felt she had taken on a mother role for her siblings.
The therapist said that this is not age appropriate. Grace was concerned about not
being there to protect her siblings from Mother in the future and “worried that
history will repeat itself, [that] things will happen again, and the kids won’t be safe.”
John also expressed concern about how visiting with Mother might impact his
younger siblings. According to his counselor, John “doesn’t trust that she can care for
them, provide comfort, and keep them safe.”
When asked why he thought terminating Mother’s parent–child relationships
with the children would be in their best interest, Father stated, “Because of their
reaction and what’s happened to them psychologically and temporarily
performance-wise as they’ve been exposed to these visits where [Mother’s] been
inebriated and has said some really hurtful things that just really . . . have stuck and
just replayed in their minds over and over and over.”
Analysis–Endangerment
We conclude that the evidence is both legally and factually sufficient to prove
that Mother endangered the children by her conduct directly tied to her substance
abuse. Mother’s behavior at the December 2020, May 2021, and December 2022 visits
was fueled by her alcohol consumption. The children were frightened and emotionally
24
impacted by her behavior. Because of Mother’s conduct, the children were unable to
have more than a few unsupervised visits with her in over five years––from October
2020 through the time of trial in early 2026. Her older three children did not want to
visit with her, and the younger three were apprehensive to visit without supervision.
Even Mother agreed when asked to admit that her addiction had “caused the children
to be placed in dangerous situations” and that her conduct had endangered the
children’s “physical safety” and “emotional well-being.”
Mother argues that there was no evidence that she ever inflicted physical
injuries on the children and that evidence of her almost-year-long sobriety before trial
outweighed the evidence that she endangered the children in the past. But we
conclude that the jury did not have to give more weight to the lack of physical injury
and Mother’s pretrial improvement. See, e.g., R.R.A., 687 S.W.3d at 277 (“[T]he
ordinary meaning of endangerment . . . does not require actual harm[.]”); In re J.O.A.,
283 S.W.3d 336, 345–46 (Tex. 2009) (holding that although the father’s pretrial
improvements had been significant, “evidence of improved conduct, especially of
short-duration, does not conclusively negate the probative value of a long history of
drug use and irresponsible choices”).
Accordingly, we hold that the evidence is legally and factually sufficient to
support the jury’s findings that Mother endangered the children according to
subsection (E). See, e.g., R.R.A., 687 S.W.3d at 272–73, 280–81; In re C.F.,
No. 09-20-00247-CV, 2021 WL 1031145, at *7 (Tex. App.—Beaumont Mar. 18, 2021,
25
no pet.) (mem. op.); In re M.A.J., 612 S.W.3d 398, 403–05, 407–08 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied) (op. on reh’g).
We overrule Mother’s second issue as to her challenge to the subsection (E)
predicate-conduct ground. Because the evidence need only be sufficient to support
one predicate-conduct ground, In re A.V., 113 S.W.3d 355, 362 (Tex. 2003), we need
not address her first issue challenging the controlled-substance use predicate-conduct
finding or the rest of her second issue. See Tex. R. App. P. 47.1.
Applicable Law–Best Interest
In her fifth issue, Mother challenges the jury’s finding that terminating her
parent–child relationships with the children is in their best interest.
Although there is a strong presumption that keeping a child with a parent is in
the child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best-interest
analysis is child-centered, focusing on the child’s well-being, safety, and development,
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). We review the entire record to determine
the child’s best interest. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same
evidence may be probative of both a Subsection (b)(1) predicate ground and best
interest. Id. at 249; C.H., 89 S.W.3d at 28.
We consider the following nonexclusive factors in measuring the evidence’s
sufficiency to support a best-interest finding: (1) the child’s desires; (2) the child’s
emotional and physical needs and the danger to the child at the time of trial and in the
future; (3) the parental abilities of the individuals seeking custody and the programs
26
available to assist them in promoting the child’s best interest; (4) the plans for the
child by those seeking custody and the stability of the home or proposed placement
for the child; (5) the parent’s acts or omissions that indicate the existing parent–child
relationship is not a proper one and any excuse for the those acts or omissions. Holley
v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors are not exhaustive, and
some listed factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore,
undisputed evidence of just one factor may be sufficient to support a finding that
termination is in the child’s best interest. Id.
Applicable Facts and Analysis–Best Interest
In our best-interest sufficiency analysis, we will recount the evidence relevant to
each of the Holley factors, but we will combine them topically for ease of discussion.
Children’s Desires
• According to their counselor, Grace and John did not want to be hurt
anymore; Grace did not want to see Mother, did not want to attend
reunification counseling, and was not open to having a relationship with
Mother until she became an adult. John did not trust Mother and did not want
to attend even supervised visits, and Greg was starting to question whether he
wanted to attend visits. Arthur was afraid to attend unsupervised visits with
Mother, and Darlene, the youngest, was torn between being excited to see
Mother and anxious to see Mother, particularly because of her siblings’
reticence. Nevertheless, Father admitted that the younger three enjoyed
spending time with Mother, corroborating what visit supervisors had testified
to.
• According to Father, the younger three children were still interested in having
Mother attend their extracurricular events, but she had not been able to attend
one since the February 2025 visit. Only Darlene was actually excited at the
prospect. Father said that although he had encouraged the children to have a
relationship with Mother, over time that had become more difficult to do, and
27
he no longer did so. The younger four children’s therapist testified that they still loved Mother even though their relationship with her was complicated; Father also testified that Mother loved the children.
• Mother testified that even though she had been very close to Grace, she did not have a relationship with her because of the lack of visits; she regretted her role in that lack of relationship. Although she had been bonded to John as well, he no longer attended visits. Mother said that she would not try to force them to have a relationship with her because it would be counterproductive. According to Mother, Greg was reticent at first during visits, but he then warmed up and became silly, happy, and interactive. Mother claimed to be bonded and “very close” to Arthur but admitted that, like Greg, he had to warm up at visits. Darlene was still “kind of nursing” at the time of the divorce, so she and Mother were “[v]ery bonded.” Darlene would “run right up to” Mother, and they would play and laugh.
Children’s Emotional and Physical Needs
• All five of the children were in therapy. According to the children’s therapists, they needed stability and to work through their anger, anxiety, or both to be able to feel safe in their environment. Grace and John, in particular, needed to know that their younger siblings would be safe and worried about them attending even supervised visits with Mother. All of the children had been affected by the back-and-forth nature of the visits. The younger four children’s therapist was concerned about the effect that even supervised visitation would have on them because of the up-and-down nature of the emotions involved.
• A reasonable inference from the evidence is that the children needed either (1) for Mother to show a sustained sobriety and stability that would allow them to visit with her without fear that she would drink, use drugs, verbally abuse them, or otherwise put them in physically and emotionally endangering situations or, (2) if she could not show such protective behavior, to be protected from Mother.
• Mother admitted that it was not in the children’s best interest to have to keep attending supervised visits at the courthouse.
Father’s Plans and Stability of Home
• Father remarried in November 2022. He testified that he and Stepmother were family oriented and did family activities with the children. Stepmother planned to adopt them. Grace told her therapist that she had a good
28
relationship with Stepmother. Father agreed that all of the children were doing “really well” and “thriving in school.” He did not think termination of their parent–child relationships with Mother would upset their status.
• Throughout CPS’s involvement with the children, the Department had no concerns about Father and thought that he was appropriately protective of the children. A CPS investigator had visited his and Stepmother’s home and had no concerns.
Mother’s Plans and Stability of Home
• Mother still wanted to be a part of the children’s lives “[i]n every aspect.” Mother’s plan if her rights were not terminated was to go back to the stair-step visitation plan that had previously been in place and to ultimately work her way up to unsupervised visits. Mother testified that at the time of trial, she was working as a registered behavior technician with children and had been at the job for six months. She worked directly with two children and had earned employee-of-the-month status one month. She was in her third semester of college, taking courses in general and child psychology. She wanted to become an advocate for mothers in her legal situation.
• Mother and Husband had lived with Anne, a friend from church, since 2023; Mother testified that at the time of trial, she paid rent to Anne. According to Anne, Mother and Husband were saving their money, and she thought that they would have their own residence “fairly soon” after trial. Anne had no concerns about Mother’s alcohol use because it was “more fear driven,” especially around Christmas time, and Mother used it for comfort.
Nevertheless, during Mother’s 2025 relapse, Anne kicked her out of the house for a week because of her drinking; Mother admitted that Anne had called the police because Mother had threatened to kill herself. Anne testified that she had never seen violence between Mother and Husband.
• Husband was on methadone treatment and mental-health medication, but he admitted that he drank alcohol daily––“casually”18––and that he kept it in the house. Mother testified that she was not tempted by the alcohol that Husband kept in the house. Husband admitted that he had previously used heroin and opioids and that he also had to take regular drug tests.
Mother described his alcohol use as “normal/casual.”
18
29
• Husband denied that any violence had occurred between him and Mother. He
testified that although he did not see the need for an injunction prohibiting the
children from being around him, he would abide by its terms. Mother testified
that she and Husband had gotten into altercations, but she said that during
them he had to restrain her.19
Parenting Abilities and Programs Available (Father)
• The Department considered Father a fit parent, who was appropriately
protective of the children. After the divorce and throughout the case, Father
attempted to facilitate the parties’ agreements regarding custody, asking for
regular drug and alcohol tests according to those agreements. He worked with
CPS during their investigations. Although there was no testimony about any
specific programs available to Father, he had placed the children in therapy,
which he continued to facilitate at the time of trial.
Parenting Abilities and Programs Available (Mother)
• Mother testified that by the time of trial, she had been sober since February
2025. She had gone to intensive inpatient treatment at JPS, took Naltrexone for
alcohol dependence, and had a sponsor. Mother attended Celebrate Recovery
meetings. She was also in specialized therapy for post traumatic stress disorder
(PTSD) and was taking medication for her mental health. According to Mother,
this period of sobriety was different because she was “finally being treated for
the root problem” of anxiety and depression. Her mind and thinking were
much different from before. She testified that the children “would not
recognize” her from the “coping skills” that she had gained and the changes
she had made.
• Mother’s sobriety sponsor testified that Mother was very consistent,
committed, and deliberate about her sobriety. Both she and Mother’s
accountability partner testified about the Celebrate Recovery program that
Mother attended. Mother’s accountability partner also described a stair-step
program in which Mother participated through her church that helped her to
deal with trauma. Neither had concerns with Mother’s being around Husband
during her recovery.
19
In closing, Father’s counsel noted, “[S]he either experienced a terrible situation of domestic violence with her partner or fabricated it, lied to police, and had him arrested. I’m not sure that either is better than the other.”
30
• Mother planned to continue drug testing every three months and paying for a BACtrack subscription to take Breathalyzers. She was willing to continue drug testing and Breathalyzers as safeguards to allow her to be around her children.
• Mother testified that she had a support system in her mother and brothers, aunts and cousins, Anne, church friends, her sponsor, and her accountability partner. She admitted that Husband was not sober, but she said she was “[n]ever tempted” by his alcohol use.
• It was Anne’s understanding that before the February 2025 relapse, Mother’s longest period of sobriety had been nine years. According to Anne, Mother’s period of sobriety immediately before trial was different from her past periods of sobriety because Mother had experienced a true conversion the night she had walked into a church after being in jail. Husband said the change was “night and day.” Anne attributed Mother’s February 2025 relapse to the suicide of one of Mother’s friends and her depression about the pending termination case. According to Anne, Mother had stopped vaping and was eating healthier.
• Anne testified that the tools Mother was utilizing to remain in recovery were going through “excellent” county programs, attending the Celebrate Recovery program, and regularly attending church. Husband testified that Mother regularly attended church and NA/AA meetings and had “surrounded herself with a support system all focused on recovery.”
Mother’s Acts and Omissions, Danger to the Children, and Excuses
• Mother had a history of substance abuse stretching back to before the divorce. Because of that substance abuse, she had put her children in endangering situations. She continued to make excuses for her behavior even after Father filed his petition to terminate her parental rights.
• When asked why he thought that termination of Mother’s parental rights was in the children’s best interest, Father said, “She’s shown repeatedly that [her sobriety] just doesn’t last. . . . It just keeps on popping up again and again. . . . It just is a repeated cycle that really has hurt the children so much that the three eldest just -- they don’t want to be hurt anymore.”
• Mother testified that she is not honest when she drinks; she also said, “I don’t really know who I become when I’m drinking like that.”
• When asked whether her relapse prevention plan included not being around other addicts who are not clean and sober, Mother answered, “I mean, when
31
they’re doing drugs, yes.” She answered, “I’m avoiding that,” when asked what would happen in the future if the Breathalyzer tests needed to be enacted again.
• Mother explained that her December 2024 relapse happened because she was suffering from a bad kidney infection that she had dealt with by drinking alcohol.
Alienation-Related Evidence
• Mother, Anne, and Husband all hinted that Mother’s relationship with Father had not been good and had caused her trauma. Mother testified that Father had verbally abused her. In trying to explain the December 2020 incident, Mother testified that Father had told her that she had abandoned the children by abandoning him and that the children had called her an egg donor and were disrespectful to her. She attributed her drinking at the December 2020 visit to an inability to cope with the situation and her “mom guilt” over leaving Father.
• Mother testified that she had wanted the children in counseling “from the very get-go” but that Father had told her that “they didn’t need it because they were better off without” her. Mother testified that she thought Father filed the termination suit just so that Stepmother could adopt the children. She also contended that Father would not allow her to have phone calls with the children or visit with them in school, in violation of their parenting agreements. Father testified, however, that he had withheld phone calls because he thought that they constituted unsupervised visitation. Mother also testified that Father and Stepmother would sit in between her and the children at events and that at one event Stepmother had told people she was Greg’s mother.
• Anne had supervised some of Mother’s visitation; she testified that Father told her at a March 2023 visit that he was going to terminate Mother’s parental rights. She also testified that Stepmother had tried to prevent Mother from being around Grace at an event by grabbing her and holding her tightly. Anne said that Darlene had asked Mother at a visit if she was a bad mommy and that Father had told Darlene that Mother was a bad mommy.
• A friend of Mother’s from church testified that she had acted as a supervisor for Mother, which included accompanying her to some of the children’s school events. She thought that although the children were a little standoffish around Mother when Father and Stepmother were around, John “greeted her warmly with a smile and gave her a hug” when Father and Stepmother were gone. Mother had not done anything to cause this friend concern, even though she
32
had seen Mother intoxicated and had stopped being her supervisor for that
reason.
• Father admitted that he had told the children before a November 2025 visit,
when trial was imminent, that it might be their last visit with Mother and that
they might never see Mother again. He had shared with them that she was a
drug addict, but he denied telling them that she is an alcoholic.
• Both therapists testified that they had not seen any evidence that the children
had been coached.
Analysis–Best Interest
Mother contends that the evidence of her rehabilitation, continuing
relationships with the children, recent good visits, and “functioning safeguards” in
place for their safety weighs against the jury’s best-interest finding. However, the jury
was entitled to believe that the trauma the children had endured and their fear of
Mother’s past conduct’s recurring due to a relapse outweighed that evidence,
particularly in light of the fact that the children would have to start over again with a
stair-stepped visitation program and that Mother had not been able to show an ability
to maintain her sobriety while at the same time maintaining unsupervised access to the
children. The jury was entitled to conclude from the evidence that continued
supervised-only visitation would result in emotional harm and lack of stability for the
children. The jury also rejected the theory that the damaged relationship with Mother
and the children was due to Father’s alienation.
Mother relies heavily on the Texas Supreme Court’s recent decision in In re
H.S. to urge that the evidence here was legally and factually insufficient as to the jury’s
33
best-interest finding. No. 24-0307, 2026 WL 1614496 (Tex. June 5, 2026). However,
the facts of that case are distinguishable. In H.S., the time from the Department’s
removal of the children from both of their parents’ care until trial was just over a year,
and the children had not been able to have even supervised visits with their mother
for the seven months before trial. Id. at *2–4, *5. The Department had no
permanency plans for the children, and there was no evidence, as there was in this
case, that the children had verbalized fear or worry about being around their mother
outside of their home environment with their parents together or that the mother had
been given multiple opportunities to be responsible for the children at unsupervised
or supervised visits. Id. at *7; id. at *15, *19–20 (Lehrmann, J., dissenting).
Here, the jury had to evaluate Mother’s interactions with the children over a
more-than-five-year period when the children were not in the Department’s care and
in the primary care of a protective parent. The jury heard evidence of the direct effect
of Mother’s own conduct on her children rather than their being subjected to a living
situation with a spouse from whom she was ill-equipped to protect the children. Cf. id.
at *1–4, *6, *9–12. The jury was able to evaluate Mother’s demeanor and explanations
for her conduct.
Admittedly, the best-interest determination was a difficult one and close under
the demanding clear-and-convincing burden of proof that the jury had to consider.
Both Father and the children’s ad litem acknowledged that fact in their closing
arguments, as well as the undisputed fact that Mother had shown improvement before
34
trial. However, ultimately, as we must, we defer to the jury’s determination and hold
that the evidence is legally and factually sufficient to support its best-interest finding.
We thus overrule Mother’s fifth issue.
Because we will affirm the trial court’s judgment terminating Mother’s parent–
child relationships with the children, we need not address the alternative custody
argument in her eighth issue. See Tex. R. App. P. 47.1.
Evidentiary Issues
Grace’s Statement
In her third issue, Mother contends that the trial court reversibly erred by
overruling her objections to Amicus Exhibit Number 2, which consisted of therapy
notes and records for Grace and included an angry letter that Grace had written to
Mother as a treatment exercise.
Grace’s therapist testified that part of her process with Grace was to have her
journal at home, verbally process her feelings, and write letters expressing those
feelings. Grace struggled with feeling unheard and lacking autonomy about what was
happening to her. The therapist also maintained notes from Grace’s therapy sessions.
The therapist testified that she kept those notes, as well as one of Grace’s letters, as
business records and that the exhibit was a true and correct copy of Grace’s therapy
records. When Grace’s attorney ad litem offered the exhibit, which was accompanied
by a business-records affidavit, Mother’s attorney objected to “hearsay and hearsay
within hearsay” because Grace’s “statement [was] within this document.” The trial
35
court overruled the objection and admitted the document into evidence. The trial
court declined to let the ad litem publish the exhibit at that time, but it did say that it
would allow the jury to have the entire exhibit during deliberations.
Although allusions to what Grace had said during therapy appear throughout
the notes, appended at the end are two documents entitled “Statement 1” and
“Statement 2.” Assuming that Mother preserved her “hearsay within hearsay”
objection to this evidence by referring to Grace’s “statement,” we nevertheless
conclude that the trial court did not abuse its discretion by determining that the two
statements were (a) contemporaneously made and regularly maintained records that
were (b) made for and reasonably pertinent to Grace’s medical diagnosis or treatment
and that describe medical history, past or present symptoms, or sensations and their
inception or general cause; thus, they were admissible. See Tex. R. Evid. 803(4), (6),
805; In re J.H., No. 02-22-00457-CV, 2023 WL 310187, at *2 (Tex. App.––Fort Worth
Jan. 19, 2023, orig. proceeding) (mem. op.); Calderon v. Tex. Dep’t of Family & Protective
Servs., No. 03-09-00257-CV, 2010 WL 2330372, at *7 (Tex. App.—Austin June 11,
2010, no pet.) (mem. op.).
Mother contends in her reply brief that the records contain a third layer of
hearsay––Grace’s statements about what her siblings told her about the February
2025 library visit. But we conclude that although Mother’s objection was sufficiently
specific to preserve an objection to the inclusion of Grace’s “statement” in the
exhibit, it was not sufficiently specific to preserve a complaint that Grace’s statement
36
itself contained other inadmissible hearsay. See In re D.R., No. 02-23-00093-CV,
2023 WL 5967891, at *3 (Tex. App.—Fort Worth Sept. 14, 2023, pet. denied) (mem.
op.); cf. Jaimes v. State, No. 05-24-00380-CR, 2025 WL 2456130, at *8 (Tex. App.—
Dallas Aug. 26, 2025, pet. ref’d) (mem. op., not designated for publication).
We overrule Mother’s third issue.
Alleged Touching of Arthur
In her fourth issue, Mother complains that the trial court reversibly erred by
overruling her objection to and admitting the “detailed and graphic testimony” about
Arthur’s “sexual-touching allegation” when CPS had investigated the allegation and
assigned a ruled-out disposition, no criminal charges resulted, and the danger of unfair
prejudice substantially outweighed the evidence’s probative value.
When Arthur’s therapist began to testify about what he had told her at his
emergency visit after the 2025 library incident, Mother’s counsel objected as follows:
“I believe what she’s going into is hearsay. It’s not an original outcry. There was -- it’s
-- the prejudicial value outweighs the probative value and there was no conviction.”20
The trial court overruled the objection.
20
Contrary to Father’s argument, we hold that Mother’s objection was specific enough to preserve her complaint. Li v. Pemberton Park Cmty. Ass’n, 631 S.W.3d 701, 704 (Tex. 2021) (noting that issue is preserved by sufficient reference to substance). But cf. In re Commitment of Martin, No. 03-23-00128-CV, 2023 WL 5597357, at *5 (Tex. App.—Austin Aug. 30, 2023, no pet.) (mem. op.) (concluding that objection that evidence was “highly prejudicial” was not sufficiently specific to preserve a Rule 403 objection and citing similar cases).
37
Mother’s argument focuses solely on her Rule 403 objection.21
We review a trial court’s ruling in admitting or excluding evidence under an
abuse of discretion standard. Tex. Health Harris Methodist Hosp. Sw. Fort Worth v. Davis,
No. 02-23-00055-CV, 2024 WL 3611269, at *13 (Tex. App.—Fort Worth Aug. 1,
2024, pet. denied) (mem. op.). A trial court abuses its discretion in admitting or
excluding evidence if it acts without reference to any guiding rules and principles or if
the act complained of is arbitrary and unreasonable. Carpenter v. Cimarron Hydrocarbons
Corp., 98 S.W.3d 682, 687 (Tex. 2002) (op. on reh’g); Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
Evidence may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the jury. Tex. R.
Evid. 403; Pack v. Crossroads, Inc., 53 S.W.3d 492, 500 (Tex. App.—Fort Worth 2001,
pet. denied). “‘Unfair prejudice’ . . . means an undue tendency to suggest decision on
an improper basis, commonly, though not necessarily, an emotional one.” Diamond
Offshore Servs. Ltd. v. Williams, 542 S.W.3d 539, 549 (Tex. 2018). “‘Confusion of the
issues’ means ‘a tendency to confuse or distract the jury from the main issues in the
case.’” Tex. Health Harris Methodist Hosp., 2024 WL 3611269, at *18. “‘Misleading the
jury’ ‘refers to a tendency of an item of evidence to be given undue weight by the jury
on other than emotional grounds’—for example, scientific evidence that could
21
Moreover, Mother’s hearsay and outcry objections, which she does not address on appeal, go to the evidence’s weight and not its admissibility.
38
mislead a jury ‘that is not properly equipped to judge the probative force of the
evidence.’” Id. (quoting Nguyen v. State, No. 02-23-00168-CR, 2024 WL 1451977, at
*6 (Tex. App.—Fort Worth Apr. 4, 2024, pet. ref’d) (mem. op., not designated for
publication)).
“When determining [the] admissibility of evidence under Rule 403, trial judges
must balance the probative value of the evidence against relevant countervailing
factors.” Id. (quoting JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018)).
Mother contends that “[t]he manner in which the evidence was presented”––
without simultaneously informing the jury that CPS had “ruled out” sexual abuse
based on the allegation––“created a substantial danger that the jury would initially
receive the allegation as evidence of sexual misconduct by Mother rather than as an
allegation that had been investigated and ruled out by CPS.” She also argues that
“[a]ny probative value associated with the therapist’s repetition of the allegation was
substantially outweighed by the danger that the jury would treat the accusation itself
as proof that Mother committed sexual misconduct.”
Arthur’s therapist testified about this emergency meeting shortly before being
cross-examined. Mother’s counsel was thereafter able to elicit an affirmative answer
about whether CPS had investigated and made a ruled-out disposition based on that
incident, after having to ask the therapist several times. The jury could have inferred
from the therapist’s reluctance to answer the question that she did not want to admit
that CPS had disposed of the case as ruled out. Accordingly, in context, the timing of
39
the admission of the evidence itself was not substantially more prejudicial than
probative.
Additionally, Mother’s counsel was later able to use the testimony to Mother’s
advantage in her alienation theory. Although Father’s counsel did not mention this
evidence in her closing, Mother’s did. She argued that CPS had investigated the
incident, and, “[a]s a reminder, that was right before our first jury trial, because our
first trial was scheduled for February 2025. Conveniently, right after her visit, there’s a
sexual assault allegation that got ruled out by CPS. They investigated, they did their
job, and they rejected it.”
The evidence was probative to illustrate not only how bizarre Mother’s
behavior could be when she was intoxicated but also to show either that Arthur thought
Mother was behaving inappropriately or that he was so worried about what she might
do that even unintentional-but-nevertheless-intoxicated behavior caused him to be
anxious. Also, it was highly probative to show how Mother’s relapses could endanger
the children even during supervised visits. Although this evidence was clearly
prejudicial to Mother, especially considering the sexual nature of the allegation, we
conclude that, considering all of the circumstances in context, the trial court did not
abuse its discretion by determining that its probative value was not substantially
outweighed by any of the dangers outlined in Rule 403.
We overrule Mother’s fourth issue.
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Exclusion of Evidence
In her sixth issue, Mother contends that “the trial court’s repeated exclusion of
responsive or explanatory testimony from [her] and her witnesses, if preserved by the
record and considered cumulatively, probably caused the rendition of an improper
judgment or prevented [her] from fairly presenting her case.” In her brief, Mother
discusses several occurrences: (1) when she was asked what effect the February
2025 to June or July 2025 suspension of visits had on her relationship with the
children; (2) when Anne was testifying about changes Mother had made in her life;
(3) when Mother’s accountability partner was testifying about Mother’s experience in
the church she walked into after one of the February 2025 police encounters; and
(4) when her sobriety sponsor was testifying about Mother’s recovery.
The following exchange occurred during the questioning of Mother:
Q. Okay. So you didn’t see your kids from February -- about February
2025 until June of 2025, right?
A. Correct.
Q. Okay. What impact did that period of non-visitation have with -- with
your relationship with your children?
[Father’s counsel]: I’m going to object as to speculation.
THE COURT: Sustained.
Q. (BY Mother’s counsel): Did you notice a change in your children’s
demeanor from when your visits were happening back in February to
June of 2025?
A. I mean, in the very first one [Greg] was kind of quiet, but then he -- I
mean, it was the same as before.
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Q. What do you mean same as before?
A. That they were really connected. I mean, the supervisors can say that.
Mother did not make an offer of proof regarding what her answer to the
objectionable question would have been. Thus, she has not preserved error regarding
the trial court’s exclusion of any evidence. See, e.g., Williams v. Hurricane Harbor, LP,
No. 02-25-00160-CV, 2026 WL 1449846, at *39 (Tex. App.—Fort Worth May 21,
2026, no pet.) (mem. op.). And although she argues that the content of her answer
was apparent from the context, we disagree. Although Mother was able to
immediately thereafter answer a question about the children’s demeanor during the
resumed visits being not very different, she could just as easily have been about to
testify that, despite her behavior at the February 2025 visit, suspension of the visits
altogether for almost six months had a detrimental effect on her relationship with the
children––testimony that might have been in favor of her argument that continued
supervised visitation was in the children’s best interest. Accordingly, we determine
that this complaint was not preserved.
The same conclusion holds for the trial court’s sustaining of nonresponsiveness
objections during Anne’s testimony and of a “narrative” objection during Mother’s
accountability partner’s testimony. Although given the opportunity to ask specific
follow-up questions, Mother’s counsel did not do so, nor did she make an offer of
proof.
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Finally, although the trial court sustained an objection to part of Mother’s
sponsor’s testimony that Mother’s medication was only one of the tools she used to
maintain sobriety, the trial court did not strike that answer from the record. Thus,
Mother cannot show that she preserved any error or was harmed by the objection or
the trial court’s ruling. See Parallax Corp., N.V. v. City of El Paso, 910 S.W.2d 86,
90 (Tex. App.—El Paso 1995, writ denied) (“Merely urging an objection to testimony
already elicited is insufficient to prevent the jury’s consideration thereof or to prevent
an appellate court’s consideration of same in a sufficiency review.”); City of Denton v.
Mathes, 528 S.W.2d 625, 634 (Tex. App.—Fort Worth 1975, writ ref’d n.r.e.)
(concluding party waived complaint even after repeatedly objecting to testimony after
it was given and obtaining favorable rulings from the trial court, in part because party
did not ask for testimony to be struck).
We overrule Mother’s sixth issue.
Effectiveness of Counsel
In her seventh issue, which she couches in the alternative, Mother contends
that––if ineffective assistance of counsel can be raised in a private termination suit
with retained counsel––her counsel was ineffective for failing to present as evidence
“[d]ocumentary treatment records, completion certificates, discharge records, or other
admissible evidence corroborating Mother’s treatment history[, which] could have
provided objective support for her testimony on the central disputed question of
whether her rehabilitation was genuine and sustained.”
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To demonstrate ineffectiveness, a parent must satisfy the two-pronged
Strickland test by demonstrating (1) that trial counsel’s performance was deficient and
(2) that the deficient performance by trial counsel prejudiced the case. In re M.S.,
115 S.W.3d 534, 544–45 (Tex. 2003) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)); In re S.K., No. 02-26-00151-CV, 2026 WL 1700296, at
*2 (Tex. App.—Fort Worth June 11, 2026, no pet.) (mem. op.). In evaluating
counsel’s effectiveness under the deficient-performance prong, we review the totality
of the representation and the particular circumstances of the case to determine
whether counsel provided reasonable assistance under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland, 466 U.S.
at 688–89, 104 S. Ct. at 2065; S.K., 2026 WL 1700296, at *2. Our review of counsel’s
representation is highly deferential, and we indulge a strong presumption that
counsel’s conduct was not deficient. S.K., 2026 WL 1700296, at *2.
An ineffective-assistance-of-counsel allegation in a termination proceeding
must be firmly founded in the record, and the record must affirmatively show the
alleged ineffectiveness and the resulting harm. Id. When the record is silent regarding
counsel’s reasons for doing or not doing something, we may not speculate to find that
trial counsel was ineffective. Id. Only when the conduct was so outrageous that no
competent attorney would have engaged in it can we conclude that the challenged
conduct constituted ineffective assistance. Id. at *8.
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Assuming without deciding that Mother can raise such a complaint in a privatetermination suit with retained counsel, cf. M.S., 115 S.W.3d at 543–44, we hold that
the record is not adequately developed enough to grant relief. Although Mother filed a
motion for new trial, she did not raise ineffective assistance as a complaint in that
motion. Nothing in the record explains counsel’s reasons for declining to offer the
documentary evidence Mother now identifies, much less confirms that such evidence
exists or that it would have been favorable to Mother. On this state of the record, we
overrule Mother’s seventh issue.
Conclusion
Having overruled Mother’s dispositive issues, we affirm the trial court’s
judgment.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: September 17, 2026
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