                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-18-00387-CV


                IN THE INTEREST OF E.X.H. AND S.M.H., CHILDREN

                          On Appeal from the 100th District Court
                                   Carson County, Texas
                 Trial Court No. 11978, Honorable Stuart Messer, Presiding

                                   February 22, 2019

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

      M.H. appeals from an order terminating her parental rights to her children, E.X.H.

(E.) and S.M.H. (S.). The children were removed from M.H. after local authorities arrested

her for money laundering and abandoning and endangering a child. The charges related

to her apparent participation in a scheme to transport drugs or money to purchase drugs

between Arizona and Kentucky. E. (born in 2013) and S. (born in 2016) were in the

vehicle their mother drove across country as part of the scheme and at the time of the

arrest. Though M.H. denied having specific knowledge of the details of the scheme, she

knew it was “bad” and received $3,500 in cash as payment for her participation.
Furthermore, a sum of money exceeding $10,000 was found hidden within the vehicle

she drove. The status of those criminal proceedings is unknown.

       Upon trial of the termination suit, the court found four statutory grounds warranting

termination of M.H.’s parental rights. It also found that termination was in the children’s

best interests. Through a single issue, M.H. contends that the evidence was legally and

factually insufficient to support the best interest finding. We affirm.

       Legal and Factual Sufficiency to Support Best Interest

       M.H. specifically contends that the Department:

              took the children into custody over a pending criminal charge
              and kept [M.H.] from having a traditional parent-child
              relationship. The children appeared to be well taken care of
              by [M.H.]. Further, [M.H.] was residing in Arizona throughout
              the length of the case and tried to comply with the service plan
              to the best of her ability. She also maintained contact with the
              caseworker on a regular basis. [M.H.] attempted to complete
              several services while in Texas but was unsuccessful in doing
              so due to a lack of availability. In addition, [M.H.] also made
              attempts to contact the children but was also unsuccessful in
              accomplishing those interactions due to a lack of cooperation
              and planning. Further, it could be implied that there is no
              greater time of need of a mother by her children than at this
              young stage in life. In addition, [M.H.] did work through some
              of the services required by [the Department] in order for family
              reunification to occur, however it was difficult for her to comply
              completely due to her residence in another state.


Furthermore, she purportedly was trying to maintain a relationship with her children and

the Department was hindering that relationship.

       In reviewing whether the evidence is legally and factually sufficient to support

termination, we apply the standards of review described in In re K.M.L., 443 S.W.3d 101,

112-13 (Tex. 2014), and In re K.V., No. 07-16-00188-CV, 2016 Tex. App. LEXIS 11091,

at *6-8 (Tex. App—Amarillo Oct. 11, 2016, no pet.) (mem. op.). So too do we compare


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the evidentiary record to the factors itemized in Holley v. Adams, 544 S.W.2d 367, 372

(Tex. 1976) when assessing whether termination favors the best interests of the children.

       Again, the trial court found that the evidence established four statutory grounds

warranting the termination. They involved 1) M.H. knowingly placing or allowing the

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

emotional well-being of the children, TEX. FAM. CODE ANN. § 161.001(b)(1)(D); 2) M.H.

engaging in conduct or knowingly placing the children with persons who engaged in

conduct which endangered the physical or emotional well-being of the children, id.

§ 161.001(b)(1)(E); 3) M.H. failing to support the children within her ability, id.

§ 161.001(b)(1)(F); and 4) M.H. failing to comply with the provisions of a court order that

specifically established the actions necessary for her to obtain the return of the children.

See id. § 161.001(b)(1)(O).     That each ground was supported by both legally and

factually sufficient evidence is not something M.H. questions on appeal. And, in opting

to forgo such an attack on those findings, M.H. tacitly conceded that sufficient evidence

supported them. See In re T.C., No. 07-18-00080-CV, 2018 Tex. App. LEXIS 6769, at

*13 (Tex. App.—Amarillo Aug. 23, 2018, pet. denied) (mem. op.). More importantly, the

evidence relevant to those grounds may be considered in assessing the best interests of

the children. See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

       So, our analysis begins with her tacit concession that the record evidence

established she had endangered the children, failed to support them, and failed to comply

with court orders conditioning the return of her children to her. To that we add evidence

of both children being in the car and law enforcement testimony that drug couriers

sometimes take children with them to use as decoys to minimize law enforcement



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suspicions. Furthermore, the vehicle in question contained an inordinate amount of fast

food wrappers suggesting that such was the quality of food being fed the children during

the venture. Other evidence indicated that M.H. carried no change of clothing for the

children or diaper bag despite the length of the venture and age of the children.

       Once the children were removed, conditions were imposed upon M.H. to secure

their return. One was that she seek counseling; she did not. Another was that she pay

monthly child support; she did not. Another was that she maintain stable housing and

employment; though M.H. purportedly complied, she never provided documentation

verifying this. Another was that she complete a drug and alcohol assessment; the

caseworker never received documentation showing that was done. Regarding other

requirements, M.H. asserted that she was unable to perform them since she was living in

Arizona. Yet, the caseworker testified that those services could be performed there at

her expense but proof of their performance would be needed.             No proof of their

performance was forwarded to the caseworker.

       Regarding M.H.’s living conditions, she apparently lived with her mother who was

“validated” as engaging in physical abuse.        Apparently, the children’s father also

physically abused M.H. and who was incarcerated at the time the children were removed

from her. And despite being served with process regarding the termination proceeding,

the children’s father contacted no one involved in the case.

       Since their removal, M.H. has had only one physical visitation with the children.

Yet, she had communicated with them through “Skype” about seven times. The evidence

also indicates that M.H. appeared for a portion of the termination trial but left before its

completion. She had not been heard from since.



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       At time of trial, the children lived in two separate foster homes, though the homes

were geographically near each other. They adjusted well to their environments, slept

well, and maintained good appetites.       Other evidence revealed that the eldest (E.)

underwent speech therapy which he completed but will undergo continued monitoring.

He also is enrolled in school and is said to learn very quickly.

       A biological aunt residing in Arizona expressed her desire to adopt or care for the

children. According to a CASA witness, this aunt is willing to “do whatever it takes . . .

she wants those kids.” At the time of the hearing, the aunt was gainfully employed as a

“branch manager at an institution that takes care of disabled children” and was certified

to take care of such children. A home study was done or will be done to determine if she

qualifies to adopt the children.

       From the foregoing, we conclude that the entirety of the record before us contains

evidence both legally and factually sufficient to support the finding that termination of

M.H.’s parental rights was in the best interests of the children.



                                                         Per Curiam




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