                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-15-00243-CV
                                  ________________________

                           IN THE INTEREST OF D.L.W., A CHILD



                            On Appeal from the 316th District Court
                                   Hutchinson County, Texas
                Trial Court No. 41,087-A; Honorable William D. Smith, Presiding


                                          December 4, 2015

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


        This appeal concerns the termination of the parental rights of Appellant, T.M.,1 as

to D.L.W., the youngest of her five children.2 In November of 2013, the underlying

proceeding was initiated when the Department of Family and Protective Services, filed

its original petition seeking termination of T.M.’s parental rights as to the two youngest


        1
        To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM.
CODE ANN. § 109.002(d) (West 2014). See also TEX. R. APP. P. 9.8(b).
        2
         T.M. had five children: S.M., K.M., L.M., H.M., and D.L.W. When proceedings were initiated, the
two oldest children, S.M. and K.M., were adults. L.M., a male child originally adopted by T.M. in 2002,
had also been placed in the custody of his birth mother.
children, H.M. and D.L.W. The case was originally styled In the Interest of H.M. and

D.W., Children. The two children had different fathers. H.M. was a female child born to

T.M. and H.M.’s father in 2004. D.L.W. was a male child born to T.M. and D.W. in 2007.


        In April 2014, on the Department’s motion, the case was severed and the

termination proceeding continued separately as to H.M. in trial court cause number

37,417, and as to D.L.W. in trial court cause number 41,087-A. In October 2014, a

hearing was held in trial court cause number 37,417. As a result of that hearing, a

conservatorship order was entered on June 9, 2015, appointing H.M.’s father as her

sole managing conservator and T.M. as her possessory conservator.3


        Following severance of H.M.’s case, the Department filed its first amended

petition in D.L.W.’s case, i.e., trial court cause number 41,087-A. A final hearing was

held on May 15, 2015, resulting in the entry of an order terminating T.M.’s parental

rights as to D.L.W. based on section 161.001(b)(1), (D), (E), (O), and (P) of the Texas

Family Code (West Supp. 2015),4 and a best interest finding. The parental rights of

D.W. (D.L.W.’s father) were also terminated, but he did not appeal.5




        3
           While the supplemental clerk’s record in this proceeding contains the Order on Motion for
Severance, it does not contain the conservatorship order entered in trial court cause number 37,417. A
copy of that order is, however, attached to T.M.’s brief. That fact notwithstanding, documents attached in
an appendix to an appellate brief and not formally included in the appellate record will not be considered
in support of arguments raised on appeal. Crossley v. Staley, 988 S.W.2d 791, 794 (Tex. App.—Amarillo
1999, no pet.). Moreover, because we do not have a transcription of the hearing in that case, evidence
related to D.L.W.’s best interest will be limited to the evidence in the record before us.
        4
        Unless otherwise designated, all future references to “section” or “§” are references to the
Texas Family Code.
        5
            At the time of trial, D.W. was incarcerated.


                                                           2
       T.M. now challenges the termination order entered in trial court cause number

41,087-A, asserting (1) the Department was judicially estopped from claiming it was in

D.L.W.’s best interest to terminate her parental rights when she had also been named

as H.M.’s possessory conservator; (2) the doctrine of res judicata should have limited

the evidence considered on D.L.W.’s best interest to the time period between the

hearing leading to H.M.’s conservatorship order and the hearing leading to the

termination order; and (3) the evidence was factually insufficient to support a finding that

termination was in D.L.W.’s best interest. T.M. does not challenge any of the statutory

grounds supporting termination. We affirm.


       APPLICABLE LAW

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

parent and a child if the Department establishes (1) one or more acts or omissions

enumerated under section 161.001(b)(1) of the Texas Family Code and (2) that

termination of that relationship is in the best interest of the child. § 161.001(b)(1), (2)

(West Supp. 2015).


       The burden of proof is on the Department to establish its claims by clear and

convincing evidence. § 161.206(a) (West 2014). “Clear and convincing evidence” is

that “measure or degree of proof that will produce in the mind of the trier of fact a firm

belief or conviction as to the truth of the allegations sought to be established.”        §

101.007 (West 2014); In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002). Although evidence

presented may be relevant to both the statutory grounds for termination and best

interest, each element must be established separately and proof of one element does

not relieve the burden of proving the other. See In re C.H., 89 S.W.3d at 28.

                                             3
       BACKGROUND

       T.M. abuses methamphetamine,6 has a history of domestic violence with

D.L.W.’s father, and exercises poor judgment with relationships. In February 2013, the

Department received a referral alleging neglectful supervision of D.L.W. by his mother

and physical abuse of D.L.W. by his father. Both parents agreed to participate in Family

Based Safety Services which were implemented in May 2013.                     T.M. was asked to

complete a drug and alcohol assessment, maintain sobriety by submitting to drug

screening, and participate in counseling.


       Within months of beginning his services, D.L.W.’s father was arrested for assault

on a family member. In July 2013, he was placed on deferred adjudication community

supervision and ordered to not have contact with T.M. or her children. Neither he nor

T.M. abided by that condition and D.L.W.’s father moved back in with his family in

October 2013. The Department subsequently requested that D.L.W.’s father move out

of the home due to the history of domestic violence and later discovered his living

arrangements violated the conditions of his community supervision.7                    T.M.’s drug

screens continued to show she was using methamphetamines and she refused to have

D.L.W.’s father move out of her home.


       The continued drug use and presence of D.L.W.’s father in the home led the

Department to seek removal and temporary conservatorship of H.M. and D.L.W. in

       6
         T.M. testified she was a recreational drug user and became an addict because of poor choices
and because her children were removed. However, according to the evidence, she tested positive for
drugs prior to the removal of her children and continued to use drugs on and off during the eighteen
months from initiation of termination proceedings to the final hearing.
       7
         Eventually, D.W. was adjudicated guilty of assault on a family member and sentenced to four
years confinement.


                                                 4
November 2013. Ultimately, T.M.’s refusal to cooperate with the Department resulted in

the prosecution of these termination proceedings, which in turn resulted in this appeal.


      STANDARD OF REVIEW

      The natural right existing between parents and their children is of constitutional

dimension. See Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 71 L. Ed.

2d 599 (1982).      See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

Consequently, termination proceedings are strictly construed in favor of the parent. In

re E.R., 385 S.W.3d 552, 563 (Tex. 2012). Parental rights, however, are not absolute,

and it is essential that the emotional and physical interests of a child not be sacrificed

merely to preserve those rights. In re C.H., 89 S.W.3d at 26. The Due Process Clause

of the United States Constitution and section 161.001 of the Texas Family Code require

application of the heightened standard of clear and convincing evidence in cases

involving involuntary termination of parental rights. See In re E.N.C., 384 S.W.3d 796,

802 (Tex. 2012); In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002).


      ISSUE ONE—JUDICIAL ESTOPPEL

      By her first issue, T.M. maintains the Department is judicially estopped from

claiming it is in D.L.W.’s best interest to terminate her parental rights. Her position is

that H.M.’s best interest and D.L.W.’s best interest overlap and, therefore, because it

was not in H.M.’s best interest that T.M.’s parental rights be terminated, it cannot be in

D.L.W.’s best interest that those rights be terminated either. We disagree.


      The doctrine of judicial estoppel precludes a party who successfully maintains a

position in one proceeding from afterwards adopting a clearly inconsistent position in


                                            5
another proceeding to obtain an unfair advantage. Ferguson v. Bldg. Materials Corp. of

Am., 295 S.W.3d 642, 643 (Tex. 2009). Equitable estoppel generally does not apply to

governmental entities exercising governmental powers. In the Interest of S.A.P., 156

S.W.3d 574, 577 (Tex. 2005). Additionally, estoppel is for the protection of innocent

persons, and only the innocent may invoke it. Id. It is difficult to imagine how parents

who endanger their children can have “clean hands.” Id. Even assuming that estoppel

applied, there are termination cases in which parental rights were terminated as to

some children but not others. See In the Interest of G.M.G., 444 S.W.3d 46, 50 n.1

(Tex. App.—Houston [14th Dist.] 2014, no pet.); In re T.R.M., No. 14-14-00773-CV,

2015 Tex. App. LEXIS 2220, at *1 n.1 (Tex. App.—Houston [14th Dist.] March 10, 2015,

no pet.) (mem. op.); In the Interest of A.J.E.M.-B., No. 14-14-00424-CV, 2014 Tex. App.

LEXIS 12129, at *17 (Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem.

op.). T.M.’s judicial estoppel argument is without merit. Issue one is overruled.


      ISSUE TWO—RES JUDICATA

      T.M. next asserts that granting her possessory conservatorship of H.M. is res

judicata as to D.L.W.’s best interest.    Relying on C.B. v. Tex. Dep’t of Family &

Protective Serv., 440 S.W.3d 756 (Tex. App.—El Paso 2013, no pet.), she urges that in

determining D.L.W.’s best interest, this court should consider only evidence of her

behavior between October 2014 and May 2015—the time period between H.W.’s final

hearing and D.L.W.’s final hearing. Again, we disagree.


      C.B. involved unique circumstances in which C.B. and the Department entered

into a mediated settlement agreement under the Family Code for the return and monitor

of her children.   In addition to the settlement agreement, the trial court entered a

                                            6
temporary order providing that placing the children with C.B. was in their best interest.

Id. at 763-64. Three days after being returned to C.B., the children were re-removed for

her failure to abide by the conditions of the settlement agreement.                   Id. at 764.

Termination proceedings continued and resulted in a jury trial.


       Per C.B.’s request and without objection from the Department, the trial court

instructed the jury that the settlement agreement was a judicial admission by the

Department that, as of the date the children were returned to her, it was in their best

interest.   Given the instruction, the jury was required to focus on C.B.’s conduct

between the date the children were returned to her and the date of re-removal. The jury

terminated C.B.’s parental rights.


       On appeal, C.B. argued insufficiency of the evidence on the best interest finding

because evidence of her conduct should have been limited to the three-day-period

between the return and monitor date and re-removal date. In its analysis, the El Paso

Court recognized that “[t]here is abundant authority in Texas standing for the proposition

that a court order regarding placement of children is res judicata of their best interest as

of the date of the order.” Id. at 766. Citing three decisions involving modification or

custody cases,8 the court continued, “[p]rior bad acts by a parent may not be dredged

up thereafter as grounds for modification of permanent or temporary conservatorship.”

Id.


       The court acknowledged an exception to a res judicata effect of a best interest

finding, to-wit: evidence of prior conduct by the parent cannot be introduced except to
       8
         Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969); Wilson v. Elliott, 96 Tex. 472, 73 S.W.
946 (1903); Bates v. Tesar, 81 S.W.3d 411, 436 (Tex. App.—El Paso 2002, no pet.).


                                                 7
corroborate evidence of similar conduct since the original decree. See id. See also In

the Interest of C.E.B., 604 S.W.2d 436, 443 (Tex. Civ. App.—Amarillo 1980, no writ).

Notwithstanding C.B.’s argument, the court found that C.B. had engaged in a continuing

course of conduct that was not in her children’s best interest and affirmed the

termination order. C.B., 440 S.W.3d at 770-772.


       Given the posture of C.B., we find it inapposite and decline to apply it. In the

case before us, there was no monitor and return order, nor a jury trial with an instruction

limiting the scope of evidence that could be considered in determining D.L.W.’s best

interest. Additionally, C.B. involved the same children in one proceeding whereas this

case involves two separate proceedings to determine the best interest of two separate

children.


       Even if C.B. applied, the exception to limiting the scope of evidence in a res

judicata best interest finding would be applicable because T.M. engaged in a continuous

course of conduct by continuing to abuse drugs during the time period between the

hearing resulting in the conservatorship order pertaining to H.M. and the termination

order at issue in this appeal. See In the Interest of C.E.B., 604 S.W.2d at 443. T.M.

testified to using methamphetamines less than one month before the final hearing in

D.L.W.’s case.    She also testified that the longest she had been clean during the

entirety of the termination proceedings was four months and had “slipped” “less than

ten” times in the previous six months. Her testimony is evidence corroborating her prior

methamphetamine use.




                                            8
        Furthermore, a party claiming the affirmative defense of res judicata must prove

(1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of

the parties or those in privity with them; and (3) a second action based on the same

claims as were or could have been raised in the first action. In re K.S., 76 S.W.3d 36,

43 (Tex. App.—Amarillo 2002, no pet.).9


        In November 2013, the Department sought to terminate T.M.’s parental rights to

H.M. and D.L.W. in the same proceeding. However, proceedings pertaining to each

child were severed and became separate suits. The conservatorship order awarding

T.M. possessory conservatorship of H.M. (not included in this record) is not a final

judgment involving the same claims or issues. What is in the best interest of H.M. is

not, ipso facto, in the best interest of D.L.W. The mere fact that some of the evidence

presented in both proceedings could have been the same does not establish that the

termination proceeding as to D.L.W. was “based on the same claims as were or could

have been raised” in the proceeding pertaining to H.M. Appellant’s argument totally

ignores the impact that the resulting placement might have on the child, the subject of

the respective proceedings. Accordingly, T.M. has failed to establish a claim of res

judicata. Issue two is overruled.


        ISSUE THREE—BEST INTEREST § 161.001(b)(2)

        Finally, T.M. asserts the evidence is factually insufficient to support a finding that

termination of her parental rights was in D.L.W.’s best interest. In a factual sufficiency

        9
         If not pleaded, the affirmative defense of res judicata may be tried by consent. Man Engines &
Components, Inc. v. Shows, 434 S.W.3d 132, 135-36 (Tex. 2014). T.M. did not plead res judicata but the
evidence in the record before us does raise the issue of whether the trial court’s best interest finding as to
H.M. should apply to D.L.W.


                                                      9
review with a heightened standard of review, a court of appeals must give due

consideration to the evidence the fact finder could reasonably have found to be clear

and convincing.    In re C.H., 89 S.W.3d at 25.        We must determine whether that

evidence is such that a fact finder could reasonably form a firm belief or conviction

about the truth of the Department’s allegations. Id. In doing so, we consider whether

disputed evidence is such that a reasonable fact finder could not have resolved that

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

evidence that a reasonable fact finder could not have credited in favor of the finding is

so significant that a fact finder could not reasonably have formed a firm belief or

conviction, then the evidence is factually insufficient. In re J.F.C., 96 S.W.3d at 266.


       There is a strong presumption that the best interest of the child will be served by

preserving the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006).

Prompt and permanent placement in a safe environment is also presumed to be in the

child’s best interest. See § 263.307(a) (West Supp. 2015). A non-exhaustive list of

factors to consider in deciding best interest is found at section 263.307(b) of the Family

Code. Two relevant factors are drug use by a parent and failure to provide a safe

physical home environment. Id. at (b)(8), (12)(D).


       The Supreme Court has set out additional factors to consider when determining

the best interest of a child. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

Those 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 individual seeking custody; (5) the

programs available to assist the individual to promote the best interest of the child; (6)

                                             10
the plans for the child by the individual or by the agency seeking custody; (7) the

stability of the home or proposed placement; (8) the acts or omissions of the parent that

may indicate that the existing parent-child relationship is not a proper one; and (9) any

excuse for the acts or omissions of the parent. See id.


       Evidence that supports one or more statutory grounds for termination may also

constitute evidence illustrating that termination is in the child's best interest. See In re

C.H., 89 S.W.3d at 28. See also In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013).

The best interest analysis may consider circumstantial evidence, subjective factors, and

the totality of the evidence as well as direct evidence. See In re N.R.T., 338 S.W.3d

667, 677 (Tex. App.—Amarillo 2011, no pet.).


       A child’s need for permanence through the establishment of a “stable, permanent

home” has also been recognized as the paramount consideration in determining best

interest. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.). See

also § 263.307(a) (prompt and permanent placement in a safe environment is presumed

to be in the child’s best interest).


       According to T.M., she and her son have a good and loving relationship and he is

bonded to his sister, H.M. T.M. testified she had changed her lifestyle and was working

on establishing a home for her family. However, during cross-examination at the final

hearing, after eighteen months of involvement with the Department, when asked if she

was seeking the return of her child, she responded, “[n]o.” She explained that she

needed more time to get her life together.        Meanwhile, D.L.W. had already spent

eighteen months living with and bonding with his foster family.


                                            11
       In addition to her drug use and poor choices, at the time of the final hearing, T.M.

did not have a stable home or steady employment to provide for D.L.W.                Several

months before the hearing, she was arrested for assault causing bodily injury to her

adult daughter and spent one week in jail before being bonded out.10 She and her

daughter were involved in a dispute over ownership of a washing machine that T.M. had

loaded into her vehicle. When confronted by her daughter, T.M. pushed her out of a

vehicle window and drove away. She was arrested for the assault and also cited for

drug paraphernalia for having a syringe in her vehicle.


       The caseworker testified that T.M. failed to comply with many of the terms of her

family service plan.11 Over objection, the caseworker testified that T.M. tested positive

for methamphetamines on April 7, 2015, one month before the final hearing. The

caseworker’s opinion was that D.L.W. needed to be part of a family and T.M. was not

making an effort to refrain from drug use or take steps necessary to obtain the return of

her child.


       The caseworker was cross-examined on the Department’s recommendation not

to terminate T.M.’s rights as to H.M.                She explained that H.M.’s father was an

appropriate parent and he wanted T.M. to be a part of H.M.’s life. If the arrangement

did not work, he could seek modification. However, as to D.L.W., T.M. was not a

suitable parent, had no support system, and could not offer him a stable and loving

home like his foster family.



       10
            The charge was pending at the time of the final hearing.
       11
            The family service plan was introduced into evidence.

                                                     12
       D.L.W.’s foster mother has known T.M. and her family for some time. She was

once a babysitter for T.M.’s children.     She was familiar with the domestic violence

between T.M. and D.L.W.’s father. D.L.W. is a nervous child with a learning disability.

He has been diagnosed with reactive attachment disorder which makes it difficult to

have healthy relationships with primary caregivers. At first, he was withdrawn but has

since bonded to his foster family and trusts them. He enjoys numerous extracurricular

activities with his foster family such as camping, swimming, and riding bicycles.


       The foster mother testified that T.M. had scheduled visitation with D.L.W. on

Tuesdays and he would struggle to get dressed and go to school on those days. When

T.M. failed to show for her visits, he became withdrawn. The foster mother opined that

termination of T.M.’s parental rights was in D.L.W.’s best interest. However, she did not

foreclose a relationship between D.L.W. and his sister, H.M. She and her husband

expressed intent to adopt D.L.W. and provide him with a stable family life.


       Based on the record before us, we conclude the evidence was sufficient to

produce in the mind of the trial court a firm belief or conviction that termination of the

parent-child relationship was in the best interest of D.L.W. Issue three is overruled.


       CONCLUSION

       The trial court’s order terminating T.M.’s parental rights to D.L.W. is affirmed.




                                                         Patrick A. Pirtle
                                                             Justice




                                             13
