in the Interest of C.A.G. III, a Child ( 2019 )

Affirmed and Memorandum Opinion filed April 9, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00930-CV
IN THE INTEREST OF C.A.G., III, A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2016-01043J
MEMORANDUM OPINION
Appellant M.S.M. (“Mother”) appeals the trial court’s final decree terminating
her parental rights and appointing the Department of Family and Protective Services as
sole managing conservator of her child C.A.G., III (“Carter”).1 The trial court
terminated Mother’s parental rights on predicate grounds of endangerment and failure
to comply with a family service plan. See Tex. Fam. Code § 161.001(b)(1)(D), (E),
and (O). The trial court further found that termination of Mother’s rights was in the
1
Carter is a pseudonym. Pursuant to Texas Rule of Appellate Procedure 9.8, we use fictitious
names to identify the minor and other individuals involved in this case.
child’s best interest. In three issues, Mother challenges the legal and factual sufficiency
of the evidence to support the trial court’s findings on each predicate ground, as well
as the best-interest finding.2 Because we conclude the evidence is legally and factually
sufficient to support the trial court’s findings, we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Proceedings
1. Referral and investigation
In February 2016, the Department received a referral alleging sexual abuse and
neglectful supervision of five-year-old Carter. At that time, Carter lived at home with
Mother and Father. It was reported that Mother and Father use drugs, which impaired
their ability to properly supervise a vulnerably aged child. The referral source also
reported that Father is a known sex offender with pictures of naked children on his
phone.
After receiving the referral, a Department caseworker interviewed Carter at his
elementary school. Carter stated that he had seen his mother and father fighting at
home. Carter also reported that he had seen his father smoke something that was black;
when his father smoked it, his father could not run very fast. The caseworker noted a
bruise under Carter’s eye, and Carter said it happened when he fell down the stairs.
The caseworker interviewed Mother at the school as well. Mother stated that
she was a stay-at-home mom and that Father worked in construction through a “temp
agency.” Mother reported that she received housing assistance, food stamps, and
Medicaid. She denied any (1) criminal or Department history, (2) drug or alcohol use
2
The trial court also terminated the rights of the child’s father, C.A.G., Jr. (“Father”), on the
predicate grounds of endangerment and failure to comply with a court-ordered service plan; the court
also found that termination of Father’s rights was in the child’s best interest. Father has not appealed
the judgment.
2
in the home, (3) guns in the home, or (4) family violence in the home. When asked
about the bruise beneath Carter’s eye, Mother replied that Carter fell down stairs and
she had to grab him to break his fall. Mother confirmed that Father is a registered sex
offender but denied that the incident involved a child. The caseworker informed
Mother that the caseworker needed to transport Carter to the Children’s Assessment
Center (“CAC”) for a forensic interview.
When the caseworker arrived at the CAC, she contacted Father to inform him
that a forensic interview was about to begin with Carter. Father arrived at the CAC
and was belligerent and demanded information about Carter. CAC staff determined
that Father was a danger to the environment, and Father was escorted out of the
interview area.
During his forensic interview, Carter stated that he lived with his mother and
father. He stated that his mother was nice because she did not take his toys away, but
his father was very mean to his mother and argued with her. Carter reported that he
had seen his father grab his mother by the hands and “have” her against the wall. Carter
said he was four years old when this incident occurred, and that he called the police
and his father was put in jail. When asked about the bruise under his eye, Carter said
that his mother “whooped” him on the eye because he would not stop playing with his
toys. Carter stated that his father “whoops” him with a knife. Mother interrupted the
interview at this point and retrieved Carter. She attempted to leave the CAC with
Carter, but a supervisor and the interviewer prevented her leaving.
The caseworker interviewed Father. Father stated that he did not notice the
bruise under Carter’s eye and denied all allegations of drug use or domestic violence.
Father explained that his sex offender registration resulted from an incident in which
he “was dealing with a 19 year old drug addict.” Father denied having any
3
inappropriate videos or pictures on his phone and offered to let the caseworker to go
through his phone.
The caseworker then spoke to Mother about statements Carter made during his
forensic interview. Mother stated that she had noticed the bruise on Carter’s eye that
morning and that it could have occurred “while they were wrestling a few days ago.”
Mother denied that Carter had ever called the police due to domestic violence and stated
that Carter did not even know how to use a telephone. She explained that the police
had been called to their home because their neighbors were playing loud music and she
and Father got into an argument about it. She maintained that there is no drug use in
the home.
When Department caseworkers informed Mother and Father that Carter was
being removed from the home, Father claimed it was a “conspiracy” and that he and
Mother had court proceedings for an eviction proceeding the next day. According to
the caseworker, Father then “wished death” to all Department staff present.
2. Department and criminal history pre-dating the referral
In October 2014, the Department received a referral that Father was seen
slapping then three-year-old Carter in the face in public and treating Carter “like a
punching bag.” The Department ruled out the case and closed the investigation.
Mother has no criminal history. But Father has a lengthy criminal history,
including the following convictions and sentences:
 02/21/1990 Possession of Marijuana – 10 days’ confinement
 02/27/1992 Criminal Mischief and Trespass – 25 days’ confinement
 01/14/1993 Evading Arrest – 30 days’ confinement
 03/27/1995 Misdemeanor Theft – 45 days’ confinement
 03/27/1995 Felony Theft – 2 years’ probation
4
 05/29/1997 Criminal Trespass and Escape – 75 days’ confinement
 08/11/1997 Theft – 1 year’s confinement
 08/12/1998 Burglary of Habitation – 2 years’ confinement
 05/17/2001 Theft – 180 days’ confinement
 03/02/2002 Resisting Arrest – 190 days’ confinement
 05/04/2003 Sexual Assault – 5 years’ confinement
 03/10/2009 Possession of Marijuana and Evading Arrest – 20 days’
confinement
3. Pretrial removal affidavit
The Department filed a petition for protection of a child, for conservatorship,
and for termination in suit affecting the parent-child relationship, supported by an
affidavit outlining many of the above facts. The Department requested Carter’s
removal because Mother and Father could not adequately supervise Carter due to their
alleged drug abuse and history of domestic violence. As noted above, Carter reported
Mother’s and Father’s domestic violence during his forensic interview. Based on the
parents’ history of violent behavior, Father’s threatening behavior toward agency staff,
and the allegations of drug abuse, the Department opined that there was an immediate
and continuing danger to Carter’s physical health and safety warranting Carter’s
removal and naming the Department his temporary managing conservator.
4. Family service plan
Following Carter’s removal, the trial court signed a temporary order appointing
the Department as Carter’s temporary managing conservator and ordering Mother to
comply with a family service plan. The order explained that Mother’s failure to comply
with the court’s orders could result in restriction or termination of her parental rights.
The family service plan required Mother to:
 participate in and successfully complete family therapy;
5
 attend, actively participate in, and successfully complete domestic
violence classes and provide the caseworker with a copy of the
completion certificate;
 maintain stable and safe housing for a minimum of six months,
permit her caseworker access to her residence to verify safety, and
notify her caseworker of new leasing information if she relocates;
 provide caseworker with any and all sources of income, including
public aid, by the 15th of each month;
 participate in and successfully complete a psychological evaluation
and follow all recommendations;
 participate in and complete a drug/alcohol assessment and follow
all recommendations;
 participate in random drug/alcohol testing on the request of her
caseworker and show progress by testing negative for drugs or
alcohol; and
 attend, actively participate in, and complete parenting classes.
B. Trial Testimony
Trial commenced in March 2017, but the trial court recessed the case so the
parties could attempt mediation. When mediation was unsuccessful, trial
recommenced in September 2018. Before hearing testimony, the trial court admitted
several exhibits without objection, including the removal affidavit, the parents’ family
service plans, the court-appointed advocate’s report, Mother’s and Father’s drug test
reports, and Father’s criminal records. The Department called Bruce Jefferies from the
National Screening Center, National Assessment Center as its first witness. The parties
stipulated to Jefferies expertise in interpreting drug test results.
According to Jefferies, Mother tested “clean, except on the outside, she had a
low reading of marijuana” on her first drug test in March 2016. Mother tested “clean”
in April and August 2016. However, in January 2017, Mother tested positive for
cocaine. She tested “clean” in February, but she again tested positive for cocaine in
6
July 2017, October 2017, January 2018, April 2018, and May 2018. Jefferies testified
that Mother’s test results are not indicative of an “everyday” use of cocaine.
Jefferies stated that Father’s first drug test showed that he was a “chronic”
marijuana user. Additionally, Father refused to comply with numerous drug test orders,
and his family service plan provided that any such refusal “will be considered as testing
positive.” According to Jefferies, Father’s May 2018 drug test showed that “[w]ithin
the three days of taking this test, he ingested a lot of cocaine.”
The Department’s caseworker, Thelma Taylor, testified next. Carter, then seven
years old, was currently placed in a residential treatment facility (“R.T.C. facility”) due
to his past behaviors of “aggressively threatening to harm his foster parents,” and
saying he wanted to kill them or have his father kill them. Additionally, Carter had
made terroristic threats at school by threatening to “kill some of the kids in his class.”
Carter also acted out frequently at school; he engaged in fighting and failed to pay
attention. Carter was in therapy and had been diagnosed with A.D.H.D., oppositional
defiance disorder (“O.D.D.”), and “child neglect.” Within the month preceding trial,
Carter was “doing better in school and at the R.T.C. facility. The behaviors are still
there; however, they’re not as aggressive as before.” According to Carter’s therapist,
Carter learned his aggressive and disruptive behaviors from his father, with whom
Carter visited regularly. After visits with Father, Carter sometimes tells his therapist
or Taylor that he has been told to act out in placements.
Neither Mother nor Father had completed their respective family service plans.
Because Mother made inaccurate reports on her psychological assessment, she failed
to complete her psychological evaluation. Mother successfully completed her
substance abuse assessment and counseling, but she subsequently tested positive for
cocaine. The Department offered Mother additional substance abuse counseling after
she tested positive for cocaine, and Mother enrolled in the counseling. However,
7
Mother continued to test positive for cocaine. According to Taylor, Mother had not
provided housing or employment information, as required by the family service plan.
In Taylor’s view, Carter’s best interest would be served by terminating Mother’s
rights. The Department had been working with Mother (and Father) for over two years,
giving her time to make lifestyle changes, but she continued to test positive for drugs.
Additionally, Carter needs to be in a safe home, free of domestic violence and drug
use. According to Taylor, Carter’s therapist expects him to do better in therapy if
Mother and Father are no longer able to see him. Taylor testified that, although Carter
is currently in an RTC, family placements may be available if parental rights are
terminated; family members have been reluctant to step forward and get involved with
Carter due to Father’s aggressiveness. Additionally, Mother exhibited unwillingness
to leave Father, even when given a chance to provide a better home for Carter by
moving in with fictive kin. Mother refused because she did not want to leave Father.
The Department’s original concerns with Mother centered on whether she could protect
Carter, but concerns have arisen in other areas over the course of the Department’s
involvement with this family. Drug use has become a concern as well because Mother
tested positive for cocaine repeatedly while in substance abuse therapy.
Taylor testified that Carter’s visits with Mother and Father have “hurt” him.
After some visits, Carter tells Taylor or his therapist that he’s been told to “act out in
placements.” Although Carter has been in eight foster placements while under the
Department’s conservatorship, at least two people are “ready, willing and able to take
[Carter] into their home” once parental rights are terminated, but these people are “so
afraid of the parents, they’re not ready to come forward” until then.
Child Advocates’ Aleisha Stamps confirmed that Carter came into the
Department’s care due to allegations of neglectful supervision. Stamps agreed that
8
Child Advocates was “aligned” with terminating parental rights. She explained that it
was in Carter’s best interest to terminate Mother’s and Father’s rights:
We have parents who have not completed viable services on their
service plan. We have concerns with their ability to parent moving
forward. We have parents who have consistently come to court and not
given truthful information. We have a child with severe behavioral issues
and if they’re going to properly parent [Carter], they have to be able to
make sure that all of his needs are gonna be met, including medical,
psychological needs, things of that sort and the parents are not recognizing
his issues at this time. As well as we have two parents who are
consistently testing positive for illegal substances. That is a concern in
their ability to parent and supervise their children – their child.
And then the fact that [Carter]’s behavior seems to have gotten
worse since being in care and some of that, I know for me, [Carter] has
made statements, said the same statements to the current caseworker, his
father has told him to act in certain ways in his foster home in order for
him to get home. More specifically, making allegations of abuse towards
his foster parents. So with all of those issues, we feel that termination
would be in the best interest of the child.
Father, representing himself, questioned Mother about Carter’s statements
during his forensic interview concerning domestic abuse, i.e., Carter’s statements that
he had seen Father grab Mother by the hands and “have” her against the wall. Mother
explained that what Carter described was she and Father holding hands, “maybe like
boyfriend girlfriend, husband wife type holding hand thing. Like any little innocent
couple would be.” She denied any domestic abuse and testified that, if Father—or
anyone else—struck her, she would strike back, or if necessary, call the police. Mother
testified that she was currently unemployed. She also disclaimed ever drinking or
smoking, stating that she took ibuprofen occasionally. She denied that she or Father
ever directed Carter to act out in his foster placements, stating that they “always tell
him to act good, try to do your best and listen to what they have to say.”
9
Mother explained that, when she was given an opportunity to move to Beaumont
with her fictive kin, she was unwilling to do so because it would jeopardize her housing
in Houston. She denied that the individual, a doctor, offered her and Carter a place to
stay to help remove Mother and Carter from Father’s history of crime and drug abuse.
Instead, she stated this person told her she knew someone who could get her an
apartment and “possibly” a job.
Mother acknowledged that she signed a family service plan and that she fully
understood it. She claimed she was almost completely done with the plan, having
“maybe four or five more classes of individual left.” She stated that she was initially
unable to complete the domestic violence classes because they were too expensive.
However, she testified that she had now completed those classes and provided her
certificate of completion to a caseworker to provide to her own caseworker, Thelma
Taylor. Mother acknowledged that part of her family service plan was to “not test
positive for drugs.” She could not explain her positive drug test results, but stated that
she planned to see a doctor to make sure there was nothing physically wrong with her.
Finally, Mother claimed she was unaware of Father’s marijuana use until this case
started; she also stated that she did not find out about Father’s extensive criminal
history until “a couple years after” she started seeing him.
Father’s mother (“Grandmother”) testified that she had never seen Father and
Mother be physically violent toward each other. Also, she had never seen Carter with
any bruising beyond “what little boys playing around” may get. She affirmed that
Carter always had food, toys, and a proper home. Grandmother had never seen Carter
misbehave other than “little temper tantrums.” Grandmother had never seen Mother
drink, smoke, or take any kind of drugs. When cross-examined about Father’s
extensive criminal history, Grandmother testified that she does not believe Father has
a “problem with committing crimes.” She had never seen Father abuse Carter and
10
described Father as a “caring father.” Grandmother was currently unable to take Carter
into her home because she lived with a disabled person.
Finally, Father testified and explained that, although he has a lengthy criminal
history of which he is not proud, once Carter was born, he “vowed to take care of him
and . . . did it to the best of [his] ability.” Carter had never missed a dental or medical
appointment and was not diagnosed with any disorders prior to being in the
Department’s care. Father confirmed that he had been an “everyday” user of marijuana
when the Department first opened its investigation, but he cut back on his marijuana
use after Carter was born and quit completely once the Department removed Carter
from his care. Father asked for more time to complete his services.
At the conclusion of trial, the trial court granted the Department’s request to
terminate both parents’ rights. The trial court terminated Mother’s rights on grounds
of endangerment and failure to comply with the family service plan. See Tex. Fam.
Code § 161.001(b)(1)(D), (E), and (O). The court further found that termination of
Mother’s rights was in the best interest of the child. See Tex. Fam. Code §
161.001(b)(2). This appeal timely followed.
II. ANALYSIS
In three issues, Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s predicate findings of endangerment and failure to
comply with the family service plan and the finding that that termination is in the
child’s best interest.
A. Standards of Review
Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In
re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
11
Although parental rights are of constitutional magnitude, they are not absolute. In re
C.H., 89 S.W.3d 17, 26 (Tex. 2002) (“Just as it is imperative for courts to recognize
the constitutional underpinnings of the parent-child relationship, it is also essential that
emotional and physical interests of the child not be sacrificed merely to preserve that
right.”).
Due to the severity and permanency of terminating the parental relationship,
Texas requires clear and convincing evidence to support an order terminating parental
rights. See Tex. Fam. Code § 161.001; In re J.F.C., 96 S.W.3d 256, 265-66 (Tex.
2002). “Clear and convincing evidence” means “the measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.” Tex. Fam. Code § 101.007; In re J.F.C., 96
S.W.3d at 264.
The heightened burden of proof in termination cases results in a heightened
standard of review. In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). We review the legal sufficiency of the evidence by considering
all evidence in the light most favorable to the finding to determine whether a reasonable
fact finder could have formed a firm belief or conviction that its finding was true. In
re J.O.A., 283 S.W.3d 336, 336 Tex. 2009). We assume that the fact finder resolved
disputed facts in favor of its finding if a reasonable fact finder could do so, and we
disregard all evidence that a reasonable fact finder could have disbelieved. Id.; In re
G.M.G., 444 S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
However, this standard does not compel us to disregard all evidence weighing against
the finding. In re D.R.A., 374 S.W.3d at 531. Because of the heightened standard, we
also must be mindful of any undisputed evidence contrary to the finding and consider
that evidence in our analysis. Id.
12
In reviewing the factual sufficiency of the evidence under the clear-and-
convincing burden, we consider and weigh all of the evidence, including disputed or
conflicting evidence. In re J.O.A., 283 S.W.3d at 345. “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.” Id. We give due
deference to the fact finder’s findings, and we cannot substitute our own judgment for
that of the fact finder. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
In a proceeding to terminate the parent-child relationship brought under section
161.001 of the Texas Family Code, the petitioner must establish, by clear and
convincing evidence, one or more acts or omissions enumerated under section
161.001(b)(1) and that termination is in the child’s best interest under section
161.001(b)(2). Tex. Fam. Code § 161.001; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).
B. Predicate Termination Grounds
Only one predicate finding under section 161.001 is necessary to support a
judgment of termination when the trial court also finds that termination is in the child’s
best interest. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). We begin by addressing
the trial court’s finding under section 161.001(b)(1)(E).
Termination of parental rights is warranted if the fact finder finds by clear and
convincing evidence, in addition to the best-interest finding, that the parent has,
“engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child.” Tex. Fam.
Code § 161.001(b)(1)(E). “To endanger” means to expose a child to loss or injury or
to jeopardize a child’s emotional or physical health. See In re M.C., 917 S.W.2d 268,
269 (Tex. 1996). A finding of endangerment under subsection E requires evidence that
the endangerment was the result of the parent’s conduct, including acts, omissions, or
13
failures to act. In re S.R., 452 S.W.3d 351, 361 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied). Termination under subsection E must be based on more than a single act
or omission; the statute requires a voluntary, deliberate, and conscious course of
conduct by the parent. Id. A court properly may consider actions and inactions
occurring both before and after a child’s birth to establish a course of conduct. In re
A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
Although endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffer injury;
rather, the specific danger to the child’s well-being may be inferred from the parent’s
misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort Worth 2004, pet. denied).
A parent’s conduct that subjects a child to a life of uncertainty and instability endangers
the child’s physical and emotional well-being. In re F.E.N., 542 S.W.3d 752, 764 (Tex.
App.—Houston [14th Dist.] 2018, no pet.); In re A.L.H., 515 S.W.3d at 92. Among
the types of actions or omissions constituting evidence meeting this standard are
criminal activity that exposes a parent to incarceration,3 drug abuse and knowledge that
a child’s parent abused drugs,4 and domestic violence and propensity for violence.5
3
In re V.V., 349 S.W.3d 548, 554 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
Evidence of criminal conduct, convictions, imprisonment, and their effects on a parent’s life and
ability to parent, may establish an endangering course of conduct. In re S.M., 389 S.W.3d 483, 492
(Tex. App.—El Paso 2012, no pet.).
4
In re U.P., 105 S.W.3d 222, 234 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)
(finding evidence legally sufficient to support endangerment when father knew mother abused drugs
while pregnant, but failed to report mother to the department or police).
5
“Domestic violence, want of self-control, and propensity for violence may be considered as
evidence of endangerment.” In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.]
2003, no pet.); accord S.R., 452 S.W.3d at 361. Violence does not have to be directed toward the
child or result in a final conviction—“Texas courts routinely consider evidence of parent-on-parent
physical abuse in termination cases without specifically requiring evidence that the conduct resulted
in a criminal conviction.” In re V.V., 349 S.W.3d at 556; see also In re S.M.L., 171 S.W.3d 472, 479
(Tex. App.—Houston [14th Dist.] 2005, no pet.).
14
Criminal offenses in addition to drug activity can constitute endangerment because they
significantly harm the parenting relationship. In re A.A.M., 464 S.W.3d 421, 426 (Tex.
App.—Houston [1st Dist.] 2015, no pet.).
Viewing the evidence under the appropriate standard of review, the record
contains significant evidence of Mother’s endangering conduct. When first
interviewed by a Department caseworker, Carter stated that his parents spank them
with their hands, sometimes leaving bruises. During his forensic interview at the CAC,
Carter outcried that he had been abused: he stated that the bruise under his eye resulted
when Mother “whooped” him on the eye and that Father “whoops” him with a knife.
When Carter made these outcries, Mother immediately interrupted the interview, took
Carter, and tried to leave the CAC. Direct physical abuse is clearly endangering
conduct. See In re G.P., No. 01-16-00346-CV, 2016 WL 6216192, at *11-12 (Tex.
App.—Houston [1st Dist.] Oct. 25, 2016, no pet.) (mem. op.) (parent’s slapping and
yelling at child, as well as “whooping” another child with a belt, multiple times
sufficient to support endangerment finding); In re L.E.M., No. 02-11-00505-CV, 2012
WL 4936607, at *14 (Tex. App.—Fort Worth Oct. 18, 2012, no pet.) (mem. op.)
(children’s statements of physical abuse by parents sufficient to support endangerment
finding).
Additionally, despite a requirement to remain drug-free, Mother tested positive
for cocaine on numerous occasions during the service plan’s pendency and while fully
knowledgeable of her obligations and that her parental rights were at risk. Between
March 2017 and September 2018—the period during which trial recessed and
recommenced—Mother tested positive for cocaine on four occasions: October 2017,
January 2018, April 2018, and May 2018. Mother’s ongoing drug use supports an
endangerment finding under subsection E. See, e.g., In re D.J.W., 394 S.W.3d 210,
221 (Tex. App.―Houston [1st Dist.] 2012, pet. denied) (proof of a custodial parent’s
15
pattern of illegal drug use constitutes endangering parental conduct because it exposes
a parent to incarceration or impairment); In re J.T.G., 121 S.W.3d 117 (Tex. App.—
Fort Worth 2003, no pet.).
Mother was also unwilling to acknowledge her ongoing cocaine use, which
suggests she will continue to abuse drugs and therefore continue to endanger her child.
See In re A.J.E.M.-B., Nos. 14-14-00424-CV, 14-14-00444-CV, 2014 WL 5795484, at
*5 (Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem. op.) (considering
evidence that parents “minimized concerns and were in denial of the impact that
substance use has on their ability to sufficiently be in tune to the needs of their child”);
In re E.H., No. 02-09-00134-CV, 2010 WL 520774, at *4-5 (Tex. App.—Fort Worth
Feb. 11, 2010, no pet.) (mem. op.) (considering father’s denial that his drug use and
drug dealing harmed his children as factor in endangerment analysis). A parent’s
continuing drug-related conduct can qualify as a voluntary, deliberate, and conscious
course of conduct endangering the child’s well-being. See In re J.O.A., 283 S.W.3d at
345; In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied). A parent’s drug use exposes the child to the possibility the parent may be
impaired or imprisoned and, thus, unable to take care of the child. Walker v. Tex. Dep’t
of Family & Protective Servs., 312 S.W.3d 608, 617-18 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied). The fact finder may give “great weight” to the “significant
factor” of drug-related conduct. In re L.G.R., 498 S.W.3d at 204.
Further, Mother allowed Carter to remain within Father’s direct and daily sphere
of influence, which endangered Carter’s physical or emotional well-being on multiple
fronts. Mother knew, for example, that Father had a substantial criminal history,
including registration as a sex offender. Evidence shows Father engaged in physically
violent and aggressive behavior toward Mother (by grabbing and “hav[ing]” Mother
16
against the wall) and toward Carter (by “whoop[ing]” him with a knife); 6 Father
engaged in ongoing drug use; Father acted aggressively toward CAC staff, prompting
his escorted removal from the room, and he resisted completing the family service plan;
Father encouraged Carter to display recalcitrant and threatening behavior toward foster
adults—authority figures Carter should respect. Afforded the opportunity to remove
herself and her son from cohabitation with Father and live in a different city miles
away, Mother refused.
The evidence demonstrates a voluntary, deliberate, and conscious course of
conduct by Mother that endangers Carter’s physical or emotional well-being. See In
re S.R., 452 S.W.3d at 361. Considered in the light most favorable to the trial court’s
finding, a reasonable fact finder could have formed a firm belief or conviction that
termination of Mother’s parental rights was justified under Family Code section
161.001(b)(1)(E). Further, in view of the entire record, we conclude the disputed
evidence is not so significant as to prevent the trial court from forming a firm belief or
conviction that termination was warranted under section 161.001(b)(1)(E).
Accordingly, we conclude the evidence is legally and factually sufficient to support the
161.001(b)(1)(E) finding.
Having concluded the evidence is legally and factually sufficient to support the
trial court’s finding under subsection E, we need not review the sufficiency of the
evidence to support the subsections D or O findings. See A.V., 113 S.W.3d at 362. We
overrule Mother’s first and second issues.
6
Abusive or violent conduct by a parent or other resident of a child’s home can produce an
environment that endangers the physical or emotional well-being of a child. D.O. v. Tex. Dep’t of
Human Svcs., 851 S.W.2d 351, 354 (Tex. App.—Austin 1993, no writ); In re B.R., 822 S.W.2d 103,
106 (Tex. App.—Tyler 1991, writ denied).
17
C. Best Interest of the Child
We turn to Mother’s legal and factual sufficiency challenges to the trial court’s
best-interest finding.
The trier of fact may consider several factors to determine the child’s best
interest, including: (1) the desires of the child; (2) the present and future physical and
emotional needs of the child; (3) the present and future emotional and physical danger
to the child; (4) the parental abilities of the persons seeking custody; (5) the programs
available to assist those persons seeking custody in promoting the best interest of the
child; (6) the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) acts or omissions of the parent that
may indicate the existing parent-child relationship is not appropriate; and (9) any
excuse for the parents’ acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371-72
(Tex. 1976); In re E.R.W., 528 S.W.3d 251, 266 (Tex. App.—Houston [14th Dist.]
2017, no pet.); see also Tex. Fam. Code § 263.307(b) (listing factors to consider in
evaluating parents’ willingness and ability to provide the child with a safe
environment).
Courts apply a strong presumption that the best interest of the child is served by
keeping the child with her natural parents, and it’s the Department’s burden to rebut
that presumption. In re D.R.A., 374 S.W.3d at 531. Prompt and permanent placement
in a safe environment also is presumed to be in the child’s best interest. Tex. Fam.
Code § 263.307(a). A finding in support of “best interest” does not require proof of
any unique set of factors, nor does it limit proof to any specific factors. See Holley,
544 S.W.2d at 371-72.
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1. Desires of the child
At the time of trial, Carter was seven years old. When a child is too young to
express his desires, the fact finder may consider that the child has bonded with the
foster family, is well cared for by the foster family, and has spent minimal time with a
parent. In re L.G.R., 498 S.W.3d 195, 205 (Tex. App.—Houston [14th Dist.] 2016,
pet. denied). Carter was removed from Mother’s care when he was five years old. He
was arguably too young to express his desires. The record contains no direct evidence
of Carter’s desires.
2. Present and future physical and emotional needs of the child
Mother acknowledges that all of Carter’s present physical and emotional needs
are being met. Since his removal, Carter has been diagnosed with A.D.H.D. and
O.D.D.; there is no evidence that Mother is equipped to handle these diagnoses. Carter
is currently enrolled in therapy and making improvements. Mother displayed an
unwillingness to leave an environment that negatively impacted Carter’s physical and
emotional needs when she refused to leave Father despite being offered an alternative
home and a chance for employment. A fact finder may infer from a parent’s past
inability to meet a child’s physical and emotional needs an inability or unwillingness
to meet the child’s needs in the future. See In re J.D., 436 S.W.3d 105, 118 (Tex.
App.—Houston [14th Dist.] 2014, no pet.). Further, the parents’ failure to remain drug
free and complete their family service plans raises concerns about their ability to satisfy
Carter’s present and future needs. See In re S.A.S., No. 01-18-00393-CV, 2018 WL
6613865, at *7 (Tex. App.—Houston [1st Dist.] 2018, no pet. h.) (mem. op.).
3. Present and future physical and emotional danger to the child
Evidence of a parent’s unstable lifestyle, including habitual drug and alcohol
use, can support the conclusion that termination is in the child’s best interest. In re
A.R.M., No. 14-13-01039-CV, 2014 WL 1390285, at *10 (Tex. App.—Houston [14th
19
Dist.] Apr. 8, 2014, no pet.) (mem. op.). Here, Mother began testing positive for
cocaine months after Carter’s removal and continued to test positive for this drug even
while enrolled in substance-abuse counseling; thus, the record demonstrates that
Mother continued to abuse drugs even with the knowledge that by doing so, she risked
termination of her parental rights. Moreover, Father acknowledged that he was a
habitual marijuana user, and he tested positive for high levels of cocaine only a few
months before trial. Father has an extensive criminal history, is a registered sex
offender, and displayed aggressive behavior that hindered the Department’s ability to
find an appropriate foster placement for Carter; as well, there were allegations of
domestic violence involving Father and Mother. See, e.g., In re P.M.B., No. 01-17-
00621-CV, 2017 WL 6459554, at *13 (Tex. App.—Houston [1st Dist.] Dec. 19, 2017,
pet. denied) (mem. op.) (parent’s aggressive and hostile behavior throughout case
supported best-interest finding). As noted above, Mother displayed an unwillingness
to take Carter and leave this environment when offered an opportunity to do so.
Nothing in our record indicates that Mother will protect Carter from being endangered
by his exposure to Father.7 Cf. In re K.C.F., No. 01-13-01078-CV, 2014 WL 2538624,
at *19 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.) (mem. op.) (“While the
evidence demonstrated that [father] has made significant progress with respect to his
own drug addiction, such evidence does not negate a determination that [father] will
protect his daughters from being endangered by their exposure to [mother], who, at the
time of trial, was still abusing drugs.”).
Although a reasonable fact finder could fairly credit Mother’s alleged progress
in completing her family service plan and decide it justified the risk of preserving the
parent relationship, we cannot say the trial court acted unreasonably in finding Carter’s
7
The record reflects that Father failed to complete court-ordered anger management and
domestic abuse classes, failed to follow the recommendations from his substance abuse assessment,
and failed to complete substance abuse classes.
20
best interest lay elsewhere. See In re M.G.D., 108 S.W.3d 508, 514 (Tex. App.—
Houston [14th Dist.] 2003, pet. denied). It is not our role to reweigh the evidence on
appeal, and we may not substitute our judgment of the child’s best interest for the
considered judgment of the fact finder. See id. at 531 (Frost, J., concurring).
4. Parental abilities of those seeking custody, stability of the home or
proposed placement, and plans for the child by the individuals or agency
seeking custody
These factors compare the Department’s plans and proposed placement of the
child with the plans and home of the parent seeking to avoid termination of the parent-
child relationship. See In re D.R.A., 374 S.W.3d at 535.
Mother continued to use drugs after Carter was removed from her care. Mother
contends she needs more time to complete services and demonstrate a safe and stable
home. However, Mother was not candid with the court with regard to drug usage and
her reasons for positive drug tests. The evidence does not indicate a stable home or
adequate parenting skills on Mother’s part. Mother is married to Father and continues
to reside with him, despite Father’s lengthy criminal history, acknowledged history of
substance abuse, and his aggressive behavior. See In re A.K.T., No. 01-18-00647-CV,
2018 WL 6423381, at *18 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet. h.)
(not in child’s best interest to return to home environment that included narcotics use
and domestic violence).
In contrast, the Department has identified at least two people who are “ready,
willing, and able” to take Carter into their home, but only once parental rights are
terminated. These individuals were reluctant to come forward while Father is still
involved in Carter’s life as Father is “very aggressive” and “not a good guy.” And
although the Department had no definitive plans for Carter’s permanent placement and
adoption, the lack of such plans is not dispositive to the best interest finding. See In re
C.H., 89 S.W.3d at 28.
21
5. Programs available to assist in promoting the child’s best interest
In determining the best interest of the child in proceedings for termination of
parental rights, the trial court may properly consider that the parent did not comply
with the court-ordered service plan for reunification with the child. See In re E.C.R.,
402 S.W.3d 239, 249 (Tex. 2013). The caseworker testified that Mother failed to
complete her family service plan.8 Mother’s failure to complete the court-ordered
service plan—particularly after having over two and one-half years to do so—
demonstrates that she is unwilling to take advantage of the services offered to her by
the Department and casts further doubt on her parenting abilities. See In re I.L.G., 531
S.W.3d 346, 355-56 (Tex. App.—Houston [14th Dist.] 2017, pet. denied); Tex. Fam.
Code § 263.307(b)(10), (11); see also In re S.B., 207 S.W.3d 877, 887-88 (Tex. App.—
Fort Worth 2006, no pet.) (“[A] parent’s drug use, inability to provide a stable home,
and failure to comply with [the] family service plan support a finding that termination
is in the best interest of the child.”).
6. Acts or omissions of the parent that may indicate the existing parent-child
relationship is not appropriate, and any excuse for the parent’s acts or
omissions
Mother’s continuing narcotics use while this case was pending supports the trial
court’s best-interest finding. Additionally, Mother expressed no plans to protect Carter
from being endangered by his exposure to Father. See In re K.C.F., 2014 WL 2538624,
at *19; see also In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no
pet.) (explaining that parent’s history of drug use is relevant to trial court’s best-interest
finding); In re C.A.J., 122 S.W.3d 888, 894 (Tex. App.—Fort Worth 2003, no pet.)
(concluding that a parent’s continuous drug use, unstable lifestyle, and criminal record
8
As discussed above, although Mother contends she completed some services of the plan, the
evidence established that she did not fully complete the plan. Compliance with a family service plan
does not necessarily preclude or undermine a best interest finding. In re M.G.D., 108 S.W.3d at 514.
22
supported best-interest determination); Dupree v. Tex. Dep’t of Protective &
Regulatory Servs., 907 S.W.2d 81, 86-87 (Tex. App.—Dallas 1995, no writ) (allowing
fact finder to give significant weight to parent’s drug-related conduct in making a best-
interest finding); see also Tex. Fam. Code § 263.307(b)(8) (providing that, in
determining best interest, courts may consider history of substance abuse by child’s
family or others who have access to the child’s home).
Viewing the evidence in the light most favorable to the judgment for our legal-
sufficiency analysis and all of the evidence equally for our factual-sufficiency analysis,
we conclude that a reasonable fact finder could have formed a firm belief or conviction
that termination of Mother’s parental rights was in the child’s best interest. See Tex.
Fam. Code § 161.001(b)(2). We overrule Mother’s sole issue.
III. CONCLUSION
Based on the evidence presented, the trial court reasonably could have formed a
firm belief or conviction that terminating Mother’s parental rights was justified under
Family Code section 161.001(b)(1)(E) and was in Carter’s best interest. See In re
T.G.R.-M., 404 S.W.3d 7, 17 (Tex. App.—Houston [1st Dist.] 2013, no pet.); In re
M.G.D., 108 S.W.3d at 513-14.
We affirm the decree terminating Mother’s parental rights and naming the
Department managing conservator.
/s/ Kevin Jewell
Justice
Panel consists of Justices Christopher, Jewell, and Bourliot.
23