in the Interest of Z.A.S., a Child ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00040-CV
IN THE INTEREST OF Z.A.S.,
A CHILD
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
In three issues, Appellant Mother challenges the sufficiency of the
evidence to support the trial court’s findings under subsections (D), (E), and (N)
of Texas Family Code section 161.001(1), which resulted in the termination of
her parental rights to Z.A.S. We will affirm.
1
See Tex. R. App. P. 47.4.
II. FACTUAL AND PROCEDURAL BACKGROUND2
Z.A.S. was born December 11, 2009. Mother said that Z.A.S.’s biological
father was M.C. Because he is not a party to this appeal, the remainder of this
background section will focus on Mother’s actions and inactions related to Z.A.S.
A. Mother Leaves Z.A.S. with a Stranger
Missy Caddell testified that she knew Z.A.S. because he and Mother had
stayed with her mother, Peggy. Missy first met Mother around the end of
December 2009 or the first of January 2010 at Peggy’s house. Z.A.S. was
approximately three weeks old. Missy understood that Mother was staying with
Peggy because Mother did not have anywhere else to stay.
Missy testified that she offered to watch three-week-old Z.A.S. so that
Mother could go to a party around January 1, 2010. Mother took Missy up on her
offer to babysit even though Mother did not know Missy’s name or where she
lived and did not ask for that information. Missy thought she was keeping Z.A.S.
for the night, but she ended up keeping him for three weeks. During the three
weeks that Z.A.S. was with Missy, Mother was in and out of Peggy’s house, and
each time Missy went there, Mother was already gone. Missy did not hear from
Mother for a few weeks. After those three weeks, Missy took Z.A.S. to Peggy’s
house, and Mother kept the baby for a night or two before Missy came and took
2
We recognize that some of the testimony is conflicting and inconsistent.
This factual background section of our opinion, however, sets forth the testimony
given, even when it is inconsistent.
2
him back with her. Missy stocked up on formula and diapers and furnished those
necessities for Z.A.S.; Mother did not furnish any formula or diapers during that
time.
In February, after Z.A.S. had been with Mother at Peggy’s house for a few
days, Missy took Z.A.S. to the doctor and then to Cook Children’s Hospital
because he was ―really sick, really congested, and kind of having a hard time
breathing.‖ Missy typed a letter, which Mother signed, allowing Missy to seek
treatment for Z.A.S. at Cook Children’s. While Z.A.S. was at the hospital, he was
put on an IV. Upon discharge, he was given a prescription for a nasal spray,
which Missy had filled at a pharmacy. Missy said that Z.A.S. was later diagnosed
with thrush while he was in her care.
In early March, Mother’s boyfriend Matt called Missy around 10 or 11 p.m.
and urged her to bring Z.A.S. to Mother and him. Z.A.S. had already been
bathed and was in bed because he had been sick, so Missy said that she would
bring him the next day. Matt texted threats to Missy regarding her and her
children, so Missy decided to meet him at Peggy’s. Mother also texted Missy,
but Mother acted reasonably in her texts. Missy and her husband gathered
Z.A.S. and his belongings and went to Peggy’s house to meet Mother. There was
a small red car with three people in it parked at Peggy’s house, and an older
couple got out, took Z.A.S., and drove away without taking Z.A.S.’s belongings.
Mother spoke to the couple and said that she was going to meet up with them
later that night, but Mother said that she did not know them that well. Mother
3
stayed at Peggy’s house when the couple drove off with three-month-old Z.A.S.
Peggy told Mother that if she was going to drive Z.A.S. around all hours of the
night in the cold, she could get her things and leave. So Mother packed her
things that were at Peggy’s house and moved out.
Although Mother did not appear concerned, Missy said that she was
concerned because the couple was much older, Mother did not know them very
well, their car did not look very reliable, and they appeared strung out. Missy and
her husband called the police and asked them to follow the couple that night.
Missy testified that she feared for Z.A.S. if he remained with Mother because of
the people she associated with.
The next time Missy saw Z.A.S. was when Mother called her to tell her that
Z.A.S. was two months behind on his vaccinations and asked her to take him to
the doctor. Missy picked up Mother and Z.A.S. from a junkyard,3 and Mother
went with Missy to take Z.A.S. to get his shots. Missy saw Z.A.S. one other time
when she picked up Mother at the junkyard and took her to the store to buy
water.
B. Z.A.S.’s Removal
Jeremy Dickinson, an investigator with CPS, testified that CPS received a
referral on March 5, 2010, alleging neglectful supervision because shortly after
Mother gave birth to Z.A.S., she had placed him with someone she had just met
3
Missy never went inside the residence at the junkyard.
4
and had not returned for two weeks. A second referral came in after the March 5
referral, alleging that Mother had picked up Z.A.S. from the person she had left
him with and had asked for money for food and diapers because she could not
provide for him.4 With the second referral, Dickinson received an address and
was asked to investigate on March 12, 2010.
Dickinson went to the location of the address and found a trailer located on
property that appeared to be a junkyard. Dickinson testified that it was ―very
difficult‖ to navigate his way to the trailer because there was a ―countless
amount[] of material from car parts to trash to everything.‖ Dickinson spoke with
Mother inside the trailer, and she told him that the trailer had no electricity; he
also noted that there were tools, trash, and random items scattered throughout
the living room. Dickinson was not given permission to go past the living room,
but he did not recall seeing any bottles, formula, or diapers. Mother stated that
she ―was just staying there,‖ that she did not know who else was there, and that
was why she did not want him to walk through the rest of the home. 5
Mother retrieved Z.A.S. from the bedroom and would not let Dickinson
examine him. Dickinson saw that the bedroom was ―extremely cluttered,‖ that it
had a bed in it, and that there was not much room for anything else. It seemed to
4
Dickinson’s understanding was that shortly after Z.A.S. was born, Mother
had placed Z.A.S. with Ms. Caddell’s mother Peggy, that Mother had come and
picked him up, and that Mother had later placed Z.A.S. with Missy.
5
Mother did not report having another permanent address.
5
Dickinson that Mother thought the conditions of the home were suitable, but
Dickinson had concerns about Z.A.S.’s physical safety based on the condition of
the home.
Dickinson discussed the referrals with Mother, and she said that Z.A.S.
had stayed with friends and that he was on medication for thrush. Mother told
him that she had only had Z.A.S. in her care for a few weeks. Dickinson
discussed CPS’s concern that there was substance abuse, and Mother admitted
taking two prescription pills for which she did not have prescriptions;6 Mother told
him that she had taken Vicodin one week prior to Dickinson’s visit and had taken
Flexor, a muscle relaxer, about two or three days prior to his visit. Mother
submitted to a CPS oral swab test, which tested positive for methamphetamines
and amphetamines. When Dickinson told Mother the results of the drug test,
Mother denied having used drugs.
Dickinson explained that—based on the condition of the home, the results
of the drug test, and Mother’s admission that she was taking prescription drugs
for which she did not have prescriptions—CPS needed to look into a safety
placement for Z.A.S. When Dickinson asked Mother the name of a family
member for a voluntary placement, Mother did not give a name but instead
picked up Z.A.S., went into the bedroom, shut the door, and told Dickinson to
leave. Before exiting the trailer, Dickinson told Mother that they needed to find a
6
On cross-examination, Dickinson was not sure whether Mother had said
that she did not have prescriptions.
6
placement for Z.A.S. and that he would have to discuss the case with his
superiors.
Dickinson went outside and contacted his supervisor and the program
director assigned the case for Z.A.S. They told Dickinson to take custody of
Z.A.S., and Dickinson contacted the Tarrant County Sheriff’s Department to alert
them to the situation. Dickinson was outside on the phone for fifteen or twenty
minutes, and during that time, two people entered the trailer. After the sheriff’s
department arrived, a man named Gene identified himself as the owner of the
property and gave Dickinson and the sheriff’s deputy permission to enter the
residence.
Once inside, Dickinson saw Mother crying as she cradled Z.A.S. and
rocked back and forth. Mother told Dickinson not to take her baby. After
Dickinson told Mother that they needed to take custody of Z.A.S. for his safety,
Mother relented and gave Z.A.S., along with his medications, to Dickinson.
Dickinson explained to Mother that a legal action had been filed, that CPS was
involved, that Dickinson was the investigator assigned to the case, that there
would be a court hearing the following day regarding CPS’s custody of Z.A.S.,
and that a caseworker would give her a service plan and explain what was
needed on Mother’s part for her to have Z.A.S. returned to her. Mother indicated
that she would be willing to participate in CPS services to have her child returned
to her.
7
After Dickinson removed Z.A.S., he observed that Z.A.S. was dirty and that
his diaper was ―completely soiled with urine.‖ Mother did not ask to change
Z.A.S.’s soiled diaper before she gave him to Dickinson. Z.A.S. was placed in a
foster home.
Mother appeared at the hearing on the day following the removal.
Dickinson provided Mother with the phone numbers for the Drug Court Program
so that she could see if she qualified for the program. To Dickinson’s knowledge,
Mother did not follow through with the procedures to get into the Drug Court
Program. Mother attended the visitations that Dickinson sat in on, and he did not
have any concerns about her interactions with Z.A.S.
Dickinson learned during his investigation that after Mother had left Z.A.S.
with someone she considered a friend, the friend had to take Z.A.S. to the
hospital for dehydration, and he had received an IV. Mother had no explanation
for why Z.A.S. became dehydrated while he was in her care.
At the conclusion of Dickinson’s investigation, he disposed of the case as
reason to believe for neglectful supervision by Mother due to her positive drug
test and her admission to using prescription drugs without prescriptions.
Dickinson also made a finding of reason to believe for physical neglect by Mother
due to the state of the home as well as the condition of Z.A.S., who was dirty,
had an odor, and had a soiled diaper. Dickinson made an additional finding of
8
reason to believe for medical neglect by Mother due to not properly addressing
Z.A.S.’s medical needs and not following through with medications. 7
C. Mother’s Caseworker
Vicki L. Garza, the CPS caseworker assigned to Z.A.S.’s case, testified
that she first contacted Mother at the show cause hearing on April 1, 2010.
Garza told Mother that she would receive a service plan and explained that her
service plan would encompass the services that she would be working in order to
mitigate the issues, mainly her drug use, which had caused Z.A.S. to come into
CPS’s care.
1. Mother’s Service Plan
Garza told Mother that she was required to complete the service plan to
show that she could take care of her son. Mother’s service plan required her to
(1) remain in contact with Garza on a weekly basis, (2) provide a safe and secure
house, (3) show that she could financially support Z.A.S., (4) attend weekly visits,
(5) submit to a psychological evaluation and follow all recommendations of the
therapist, (6) complete a drug and alcohol assessment, (7) submit to random
drug tests, and (8) attend parenting classes. Garza went over the service plan
with Mother, and Mother indicated that she understood the plan and was willing
to comply. Garza encouraged Mother to follow through and set up her services,
7
Although Mother told Dickinson that she gave Z.A.S. medication for his
thrush, Dickinson concluded that Mother was being medically neglectful by not
resolving the thrush issue because Z.A.S. still had thrush at the time of the
removal.
9
and Mother indicated that she would. Mother brought her boyfriend Matt to a
meeting, and Garza asked him to participate in services; Matt refused and was
very hostile toward Garza.
Mother did not have any ―follow-through‖ on any of her services during the
months of June and July, though she did make her weekly visits in July. Mother
said that she did not have transportation, and Garza suggested that Mother take
the bus. When Mother had no follow-through as of July, Garza told Mother that
she was recommending termination, and Mother told Garza that she was going
to do everything she could to get her son back. On August 18, 2010, Garza met
with Mother in person, and Mother had still not followed through with any of the
services that Garza had set up. Mother continued to excuse her lack of
performance, stating that she had no transportation. Garza testified that she had
left bus passes at the CPS office, but Mother never picked them up.
2. Drug Court and Initial Drug Tests
Garza talked to Mother about entering the Drug Court Program, and
Mother indicated that she wanted to participate. Garza informed Mother that she
needed to go to Recovery Resource and get in touch with Vickie Keys so that
Mother could complete a drug assessment in order to find out if she was eligible
for the Drug Court Program. Mother did not show for her appointment with Keys.
When Garza met with Mother on July 8, Mother’s hands were dirty, her
eyes were red, she smelled of marijuana, and she picked at her skin. To Garza,
it appeared that Mother was high or had been high. Mother told Garza that she
10
had not used drugs since Z.A.S.’s removal, but an oral swab revealed the
presence of methamphetamine, amphetamines, and marijuana. Mother told
Garza that the positive test was due to her teeth; Mother’s teeth showed severe
tooth decay, and she believed methamphetamine was still in her teeth. Mother
never brought in a note from a doctor saying that there was methamphetamine in
her teeth that would cause her to test positive for drugs.
After Mother’s visit with Z.A.S. on July 28, Garza talked to Mother about
going to recovery. Mother said that she had no transportation. Garza offered to
take Mother if she scheduled the appointment, but Mother never followed
through. Mother tested positive for methamphetamine and amphetamines on
July 28, and she continued to deny using drugs.
Mother told Garza that she had used illegal drugs in the past and that her
drug of choice was methamphetamine. Mother never admitted to using
methamphetamine or other illegal drugs during the case, and Mother had only
one drug test that was negative. 8 Garza had been told by family members that
Mother had an older son who did not live with Mother because of her drug use.
3. Psychological Evaluation
Mother did not attend the psychological evaluation on May 1, 2010.
Mother said that she could not get in touch with Dr. Ryan to set up a
8
According to the record, Garza gave Mother only one drug test that was
not the oral-swab type, and the result of that test was negative for the presence
of drugs.
11
psychological evaluation, so around May 24, Garza called to set up an
appointment for Mother and was told that there were openings on May 31.
Garza left a message for Mother at her stepmother’s and was told that Mother’s
stepmother had not seen Mother for several weeks. Mother later called Garza
and confirmed that she had received the message and stated that she would
undergo the psychological evaluation on May 31. Mother did not show for that
appointment. Mother ultimately followed through with the psychological
evaluation on January 6, 2011, which was four days before the termination trial
started.
4. Move to Georgia
During Mother’s September 9, 2010 visit, she took a drug test9 and
informed Garza that she was going to Georgia because she ―needed to pull
herself away from the environment so she could try to get stuff done.‖ Garza told
her ―that it might be good for her because she couldn’t get clean here . . . but that
to work services it would be hard.‖ Garza explained that if Mother left Texas,
Garza would not be able to help her with services and that it would be Mother’s
responsibility to work and pay for her services.
After Mother moved to Georgia, she called Garza on September 11 and
gave her the address where she was living at her mother’s, along with her
9
Garza was not allowed to testify as to the results because the trial court
sustained an objection by the ad litem attorney representing the biological father.
This was the first objection to the drug test results. All previous results came in
without objection.
12
mother’s phone number. Mother had talked to CPS in Georgia, and they had
given Mother a list of places that she could call to set up her own services.
Mother had not set up any services at that time.
Garza heard from Mother the next day on September 12 and encouraged
her to be honest with her mother about why Z.A.S. had been removed, and
Garza talked to Mother about her drug use.
Garza heard from Mother on September 17 when she called to tell Garza
that she had taken a drug test and that she was sending Garza the results.
Garza told Mother that the drug test would not qualify as a random drug test
because no one from CPS had requested it.
Mother later called and said that she had undergone a drug and alcohol
assessment and was sending the results, and Garza received the documents.
After Garza reviewed the documents, she had concerns about the drug and
alcohol assessment because Mother had told the provider that she had not used
drugs in three years, which was inconsistent with what Mother had told Garza.
Garza had a conversation with Mother about being honest with everybody
because that was the only way that she was going to get the help that she
needed in order to be considered to have Z.A.S. placed back with her.
Mother called Garza on November 9 and informed her that she would be
back in Texas on December 7, 2010, and that she would stay until January 8,
2011. Garza reminded Mother that the final hearing was scheduled for January
10, 2011. Mother said that she had set up a psychological evaluation for January
13
6, and Garza said that was a concern because it was so close to the final
hearing. Garza noted that during Mother’s phone calls from Georgia, she never
asked Garza about Z.A.S.
5. Back in Texas – Visits and Drug Tests
Mother called Garza on December 7 and said that she was in Texas, and
Garza scheduled a visit. During the December 10 visit, Z.A.S. was hesitant at
first and cried because he had not seen Mother in several months. But once
Mother began playing with him, he settled down. Garza talked to Mother after
the visit, and Mother said that she would not be returning to Georgia; she wanted
to stay and work her services. Mother said that she had her psychological
evaluation set up and requested phone numbers for the other services; Garza
gave the phone numbers to her.
Garza requested that Mother submit to a hair follicle test on December 10,
but she did not go. Garza followed up with Mother on December 13, and Mother
said that her initial transportation fell through and that the bus did not make it to
the drug testing facility before it closed. Garza testified that Mother’s visit with
Z.A.S. ended at 10:00 a.m., that she visited with Garza until 11:00 a.m., that the
drug testing facility was only fifteen minutes away, and that it closed at 5:00 p.m.
Garza requested that Mother go ahead and take the hair follicle test on
December 13. On December 15, Garza followed up with Mother to find out why
she did not take the hair follicle test on December 13, and Mother did not give
Garza a reason.
14
On December 17, Mother arrived forty-five minutes late for her visit, so the
visit did not occur.
During the week of Christmas, Mother came to the CPS office and picked
up bus passes.
On December 20, Garza spoke with Mother on the phone and asked why
she had been late for the December 17 visit, and Mother told Garza that the
friend she was riding with had overslept. Garza told Mother that the office would
be closed on December 24 and that the hour would be made up on December
31. Mother did not show for the December 31 visit.
Mother visited with Z.A.S. on January 7, 2011, and afterwards, Garza
discussed her concerns about Mother’s relationship with Matt and the condition
of the home. Mother became angry and walked out.
6. Housing
Throughout the case, Mother lived at various addresses. At one point,
Mother told Garza that she lived in a trailer in Lake Worth but did not give Garza
the address. In July 2010, Mother was separated from Matt and was living with a
gentleman who was giving her a place to live but who was threatening to kick her
out.
When Mother returned from Georgia, she gave Garza the address where
she was staying, which belonged to her older son’s great uncle. Garza made a
home visit on January 7, 2011, the Friday before the termination trial. When she
arrived, Garza noted that there was ―stuff‖ stored on a porch that had a door. No
15
one answered when Garza knocked on the door. Garza called the phone
number that Mother had given her and was told that Mother was in a building at
the back of the house; the person who answered the phone gave Garza
permission to go to the back of the house.
In the back yard, Garza observed several bags of trash, scattered toys,
and two buildings, one of which had a padlock on it. Garza knocked on the door
of one of the buildings, Mother yelled out, Garza identified herself and said she
needed to talk to her, and Mother came to the door about five minutes later.
Garza described the home as more of a storage building with a screen door on it.
When Mother came to the door, the smell of stale cigarette smoke came out.
Mother was wearing a pair of pajama bottoms though it was around 10:30 or
11:00 a.m. when Garza visited. Garza noted that Mother’s fingernails were dirty,
almost black.
At first, Mother did not want Garza and her co-worker to come in because
the house was ―a little messy.‖ When Garza told Mother that she needed to see
where Z.A.S. would be living, Mother let her come in. Garza said that there were
no lights on and that there was tape over the light switch; Garza did not check to
see if the electricity was working. Garza did not remember seeing any windows
and said that it was dark. She said that the room looked like it might have been a
craft room at one time, but there was trash all over the floor. There were several
old tube televisions that had been taken apart, and a bed, which Matt was in.
When Garza asked if Mother was back together with Matt, she said no and that
16
he had only stayed the night. Garza did not recall seeing any place where there
was running water. Mother said that she would be sleeping in the storage shed
but that she would have access to the main house. Garza had concerns about
the living conditions in the home and did not feel like it was a safe and stable
home for Z.A.S.
7. Compliance
Garza said that Mother had completed the drug assessment in Georgia
and that, after she returned to Texas, Mother had completed the psychological
evaluation and had set up parenting classes, which were supposed to start in
January. Of the thirty-four visits available to Mother, she attended eighteen visits
(missing twelve visits during the time she was in Georgia and four visits while she
was in Texas), appeared under the influence at some visits, was late for two
visits, and tried to go to sleep during two visits. Mother explained to Garza that
she was not able to make her visits because she did not have transportation, but
Garza noted that Mother was able to make it from Texas to Georgia and back
and that bus passes had been made available to, but not picked up by, Mother
until a few weeks before the termination trial.
8. Best Interest and Future Plans
Garza testified that it was in Z.A.S.’s best interest for the trial court to
terminate Mother’s parental rights to him because Mother’s conduct was still
concerning, because she was still involved with people and still lived in an
environment that was endangering to Z.A.S., and because Mother had not lived
17
in the home for very long at the time of the termination trial. Garza did not
believe that Mother had addressed her drug abuse issues, and Garza believed
that Mother’s drug-using lifestyle had been dangerous to Z.A.S. in the past and
would still be dangerous to him. The Texas Department of Family and Protective
Services (the Department) asked to be named as permanent managing
conservator and stated that the plan for Z.A.S. was adoption by his foster family.
D. Mother’s Testimony
1. Explanation for Leaving Z.A.S. with a Stranger
Mother testified that she had left Z.A.S. with Missy10 for a week in January
but that Missy had brought Z.A.S. to Mother every day so that she could see him
while she was moving from Arlington to Fort Worth to stay with Missy’s mom
Peggy. Mother admitted that it did not take her seven days to move her
belongings but that Z.A.S. was with Missy for seven days. Mother said that
during those seven days, she did not use drugs. After the seven days, Mother
got Z.A.S. back. Missy wanted to watch Z.A.S. one night, so Mother took him to
her. The next morning, Missy brought Z.A.S. back to Mother and said that he
had bronchitis, and Mother signed papers that Missy brought, allowing Missy to
10
―Missy‖ is the only name that Mother knew the lady by. Mother
interpreted Garza’s references to ―Ms. Caddell‖ as ―Missy‖ and said that Missy’s
mother was Peggy. When Mother was asked how to spell Peggy’s last name,
she said that she did not know what her last name was.
18
seek treatment for Z.A.S. while Mother moved. 11 Mother did not leave Z.A.S.
with Missy other than those two times.12
2. Z.A.S.’s Removal
Mother testified that she never told Dickinson that she had taken
prescription drugs without a prescription. Mother said that she had changed
Z.A.S.’s diaper prior to the time that he was removed and that Dickinson saw her
change Z.A.S.’s diaper. Mother said that she had food and diapers for Z.A.S. at
her house but that Dickinson did not ask for those items when he removed Z.A.S.
Mother testified that she gave Z.A.S. an oral antibiotic when he had thrush and
that she sent the medication with him when he was removed.
3. Service Plan Compliance
a. Drug Issues
Mother said that initially she had set up her parenting and psychological
evaluation, but she was told to cancel those appointments because if she was
accepted into the Drug Court Program, it would interfere. Mother wanted to get
into the Drug Court Program because she thought it would help her get Z.A.S.
11
Mother said that Z.A.S. was with Missy ―a day or two before the
dehydration or whatever was brought up.‖
12
According to Missy, from January 1 through March 5, Z.A.S. stayed with
her all but four or five nights. Missy said that it was incorrect if Mother testified
that she had left Z.A.S. with Missy for a stretch of seven nights and one other
night. Missy said that it was also incorrect if Mother testified that Missy brought
Z.A.S. to Mother every day. Missy left Z.A.S. at Peggy’s house with Mother for
four or five days total during the January 1 to March 5 time period.
19
back. She believed that she had a drug problem when she was trying to get into
the Drug Court Program, but at the time of trial, she no longer believed that she
had a drug problem.
Mother went to Recovery Resource and met with Vickie Keys, who told
Mother that she was not a serious drug user and did not qualify for the Drug
Court Program, stopped Mother’s assessment, and sent Mother to talk to Holly
McFarland. Mother said that she contacted McFarland at the Drug Court
Program, and Mother was told that she needed to complete a drug assessment.
Mother did not have transportation and did not finish the drug assessment in
Texas.
When Mother tested positive for drugs and was asked whether she was
using drugs, Mother said, ―No. I was using drugs prior to them taking [Z.A.S.],
but not during that, and I don’t -- I couldn’t go to the dentists to get -- I didn’t have
enough money to pay for that to get them to check me in and see if that was the
reason.‖ When asked why Mother thought her teeth had anything to do with her
positive drug tests, Mother explained, ―Because of how often I used
[methamphetamine] and how bad they are. They call it meth-mouth.‖ Mother
testified that ―meth-mouth‖ meant that her teeth had decayed, that she was
susceptible to infections in her mouth, that the methamphetamine had eaten the
enamel off her teeth, and that she had lost teeth. Mother said that she started
using methamphetamine at age twenty-one and that she had used
methamphetamine once or twice a month for a couple of months and had
20
stopped. Mother started using again at age twenty-seven and had used once a
week for a couple of months. Mother started using again in February 2010 at
age twenty-nine, approximately one month before Z.A.S. was removed, and had
used only once or twice. When Mother was asked if she expected the trial court
to believe that approximately twelve times of using methamphetamine would
cause methamphetamine to remain in her teeth and cause her to test positive for
drugs, she said, ―Well, that’s what I think, but, you know, I don’t know.‖
Mother said that she never used methamphetamine while Z.A.S. was in
the house. When Mother used methamphetamine in February 2010, Z.A.S. was
at Missy’s, and Mother was at Rolling Meadows. However, Mother said that she
did not leave Z.A.S. with Missy so that she could use drugs.
Mother said that she was honest when she underwent the drug and
alcohol assessment in Georgia and that she did not say that she had not used
drugs in three years. Mother said that as part of her drug and alcohol
assessment, she was asked to take a twenty-hour drug class, which she
completed. Mother forgot to give Garza the paperwork showing that she had
completed the class. Initially, Mother could not articulate what she learned in the
twenty-hour drug class, but she answered leading questions that she had learned
that ―it’s always great to tell the truth‖ about everything, including her own drug
use.
Mother admitted that she had not undergone any treatment between the
time that she had tried to get into the Drug Court Program and the trial; she did
21
not think that she needed any treatment. Mother said that she had tried not to
use drugs before but that she had not counted the times that she had stopped
using drugs; she guessed that she had stopped using drugs on her own two or
three times but had always gone back to using.
b. Psychological Evaluation
Mother said that she did not make her appointment with Dr. Parnell on
May 1 for the psychological evaluation because she did not know that her
appointment was scheduled for that date and that she missed the May 31
appointment because she thought the office was closed for the holiday. Mother
said that the doctor cancelled one of her appointments, though she could not
recall the date,13 and she did not make another appointment for a while. Mother
eventually saw Dr. Parnell on January 6, 2011.
c. Parenting Classes
Mother looked into taking parenting classes in Georgia, but they had
finished for the year and were not offering them again until January 11, 2011.
Mother attempted to set up parenting classes when she returned to Texas, but
she was not able to talk to the person in charge; the answering machine said that
the person she needed to speak with would not be in until January 20, 2011.
Mother said that her main issue with not going to parenting classes was due to
13
Garza testified that the doctor did not cancel an appointment.
22
lack of transportation, but she testified that she had better access to
transportation with her new residence.
d. Housing
When Mother got pregnant with Z.A.S. in March 2009, she lived with an
ex-boyfriend in Sandy Beach RV Park in Fort Worth. She moved in September
2009 to a friend’s house. After Z.A.S. was born in December 2009, Mother
moved to Peggy’s house.
In February 2010, Mother moved to Rolling Meadows. Mother lived there
until she left for Georgia in September 2010.
Mother testified that she had been staying in the storage shed since
December 6, 2010, when she returned to Texas. Mother said that she was
staying with Cecil and Amanda, who were the great uncle and cousin of Mother’s
oldest child.14
Mother explained that there was junk in the yard at the place she was
living because it was a junkyard called Junkin’ Gene’s that collected scrap metal.
Mother said that the room she was staying in was cluttered because the prior
owner had left a lot of belongings, which were moved over to the side; the clutter
14
Mother testified that she had an eleven-year-old son named D.S. who
lived with his father in Fort Worth. D.S. last lived with Mother in 2005 or 2006.
Mother said that she visited him as often as possible but that she did not have a
regular visitation schedule or a custody agreement. Mother said that she did not
lose custody of D.S. because of her drug abuse; his father ―wanted him, so he
has him.‖ Mother said that she wanted D.S. but did not have the means to take
care of him. Mother said that she had not kept D.S. with her because she had
―been taking care of the other stuff‖ she needed to do before she got him.
23
was not so bad that Z.A.S. would be endangered from it. Mother said that there
was running water and electricity in the house. Mother said that she slept in the
storage building but that she would be staying in the main house after a room
was remodeled. Mother said that she tried to get Garza to go into the main
house but that Garza did not want to go in it. Mother said that she did not plan to
raise Z.A.S. in the storage building but that the building was insulated and had
electricity.
Mother believed that she could provide Z.A.S. with a safe and stable home
at Cecil and Amanda’s house if Z.A.S. was returned to Mother. Mother said that
there would be a room for Z.A.S. in the house when the remodeling was done.
e. Employment
During the two years prior to trial, Mother had worked for only a couple of
months as a secretary for an auto repair and repossession service. Mother said
that she had applied for jobs but that ―getting a job hasn’t been easy.‖ 15 Mother
said that she had previously been employed from 2005 to 2007.
Mother admitted that she was not employed at the time of the trial even
though her service plan required her to obtain employment. Mother said that she
was providing for herself by scrapping metal, which involved tearing apart
equipment, and that is why there were parts in her home. Mother did not make
any money in November; her mother provided for Mother while she was living in
15
Mother testified that her drug use had not affected her ability to obtain
stable housing or employment.
24
Georgia. In December, Mother made $200 by scrapping, and she testified that
she had already made $200 by scrapping during the first ten days in January.
Mother believed that she would be able to provide for Z.A.S. through scrapping
or another job and said that she had Cecil and Amanda’s support, but Mother did
not specify how much financial support they gave her.
f. Visits
Mother explained her absences from the visits, stating that Z.A.S. did not
come a couple of times and that her visitations had been ―switched around a lot,
different times, different days.‖ Mother admitted that she had missed twelve
visits during the twelve weeks that she had spent in Georgia.
g. Overall Compliance
Mother testified that she had been trying to complete her parenting classes
but had not completed them at the time of the trial, that she had completed the
drug assessment in September 2010 in Georgia, that she had completed the
twenty-hour drug class in Georgia, and that she had completed the psychological
evaluation on January 6, 2011. Mother testified that she had completed two of
the three tasks on her service plan; she did not complete parenting classes. Also
as part of her service plan, Mother maintained contact with Garza, was protective
of Z.A.S. at the visitations, demonstrated the ability to bond with and nurture
Z.A.S., and had obtained housing.
25
4. Best Interest and Future
Mother’s plans for Z.A.S. included giving him a stable environment,
providing for him, and taking care of him. Mother believed that she could provide
for Z.A.S. even though she did not have health insurance for herself and was
dependent on someone for a home. Mother said that she was willing to continue
her services after the trial and would complete the classes required by her
service plan.
Mother felt that Z.A.S. had a bond with her and that she had a bond with
him. She thought that it was in Z.A.S.’s best interest for him to live with her.
E. Foster Mother’s Testimony
The foster mother testified that Z.A.S. had been placed in her home
around March 12, 2010. At the time he arrived in the foster home, Z.A.S. was
―very underweight‖ and had thrush. The foster mother testified that she took
Z.A.S. to the doctor, and Z.A.S. weighed eight pounds at three months old.
At the time of the trial, Z.A.S. was almost thirteen months old and weighed
twenty-one pounds. He was walking, talking, and thriving. Early Childhood
Intervention had evaluated him, and he did not need services. The foster mother
testified that Z.A.S. was bonded with her family and that they wanted to adopt
him.
F. Trial Court’s Ruling
After hearing the above testimony, the trial court terminated Mother’s
parental rights to Z.A.S. after finding by clear and convincing evidence that
26
Mother had knowingly placed or knowingly allowed the child to remain in
conditions or surroundings that endangered the physical or emotional well-being
of the child; had engaged in conduct or knowingly placed the child with persons
who engaged in conduct that endangered the physical or emotional well-being of
the child; had constructively abandoned the child who had been in the permanent
or temporary managing conservatorship of the Department or an authorized
agency for not less than six months and (1) the Department or authorized agency
had made reasonable efforts to return the child to Mother, (2) Mother had not
regularly visited or maintained significant contact with the child, and (3) Mother
had demonstrated an inability to provide the child with a safe environment; and
that termination of the parent-child relationship between Mother and Z.A.S. was
in Z.A.S.’s best interest. Mother filed a motion for new trial, which was denied,
and this appeal followed.
III. LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE OF CONDUCT AND
ENVIRONMENTAL ENDANGERMENT TO SUPPORT TERMINATION ORDER
In her first and second issues, Mother argues that there is legally and
factually insufficient evidence to establish the termination grounds under family
code section 161.001(1)(D) and (E). Mother focuses her argument on whether
the evidence showed that she had a history of instability, a limited work history,
housing problems, and a history of drug use.
27
A. Burden of Proof and Standards of Review
A parent’s rights to ―the companionship, care, custody, and management‖
of her children are constitutional interests ―far more precious than any property
right.‖ Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982);
In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). ―While parental rights are of
constitutional magnitude, they are not absolute. 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.‖ In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). In a
termination case, the State seeks not just to limit parental rights but to erase
them permanently—to divest the parent and child of all legal rights, privileges,
duties, and powers normally existing between them, except for the child’s right to
inherit. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); Tex. Fam. Code
Ann. § 161.206(b) (West 2008). We strictly scrutinize termination proceedings
and strictly construe involuntary termination statutes in favor of the parent.
Holick, 685 S.W.2d at 20–21; In re R.R., 294 S.W.3d 213, 233 (Tex. App.—Fort
Worth 2009, no pet.).
In proceedings to terminate the parent-child relationship brought under
section 161.001 of the family code, the petitioner must establish one ground
listed under subsection (1) of the statute and must also prove that termination is
in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West Supp.
2010); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be
28
established; termination may not be based solely on the best interest of the child
as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987).
Termination decisions must be supported by clear and convincing
evidence. Tex. Fam. Code Ann. §§ 161.001, 161.206(a). Evidence is clear and
convincing if it ―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.‖ Id.
§ 101.007 (West 2008). Due process demands this heightened standard
because termination results in permanent, irrevocable changes for the parent
and child. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (contrasting standards for termination and
modification).
In evaluating the evidence for legal sufficiency in parental termination
cases, we determine whether the evidence is such that a factfinder could
reasonably form a firm belief or conviction that the grounds for termination were
proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We review all the
evidence in the light most favorable to the finding and judgment. Id. We resolve
any disputed facts in favor of the finding if a reasonable factfinder could have
done so. Id. We disregard all evidence that a reasonable factfinder could have
disbelieved. Id. We consider undisputed evidence even if it is contrary to the
finding. Id. That is, we consider evidence favorable to termination if a
29
reasonable factfinder could, and we disregard contrary evidence unless a
reasonable factfinder could not. Id.
We cannot weigh witness credibility issues that depend on the appearance
and demeanor of the witnesses, for that is the factfinder’s province. Id. at 573,
574. And even when credibility issues appear in the appellate record, we defer
to the factfinder’s determinations as long as they are not unreasonable. Id. at
573.
In reviewing the evidence for factual sufficiency, we give due deference to
the factfinder’s findings and do not supplant the judgment with our own. In re
H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire
record, a factfinder could reasonably form a firm conviction or belief that Mother
violated section 161.001(1)(D) or (E) and that the termination of the parent-child
relationship would be in the best interest of the child. Tex. Fam. Code Ann.
§ 161.001; C.H., 89 S.W.3d at 28. If, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the
finding is so significant that a factfinder could not reasonably have formed a firm
belief or conviction in the truth of its finding, then the evidence is factually
insufficient. H.R.M., 209 S.W.3d at 108.
B. Law on Endangerment
Endangerment means to expose to loss or injury, to jeopardize. Boyd, 727
S.W.2d at 533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,
no pet.); see also In re M.C., 917 S.W.2d 268, 269 (Tex. 1996). To prove
30
endangerment under subsection (D), the Department had to prove that Mother
knowingly placed or allowed Z.A.S. to remain in conditions or surroundings that
endangered his physical or emotional well-being. See Tex. Fam. Code Ann.
§ 161.001(1)(D); In re J.A.J., 225 S.W.3d 621, 625 (Tex. App.—Houston [14th
Dist.] 2006) (op. on reh’g), judgm’t aff’d in part, rev’d in part, 243 S.W.3d 611
(Tex. 2007). Subsection (D) focuses on the suitability of the child’s living
conditions. J.A.J., 225 S.W.3d at 626. Thus, under subsection (D), it must be
the environment itself that causes the child’s physical or emotional well-being to
be endangered, not the parent’s conduct. Id. at 627.
Under subsection (E), the relevant inquiry is whether evidence exists that
the endangerment of the child’s physical well-being was the direct result of
Mother’s conduct, including acts, omissions, or failures to act. See J.T.G., 121
S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). Additionally,
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. J.T.G., 121 S.W.3d at 125; see Tex. Fam. Code Ann.
§ 161.001(1)(E). It is not necessary, however, that the parent’s conduct be
directed at the child or that the child actually suffer injury. Boyd, 727 S.W.2d at
533; J.T.G., 121 S.W.3d at 125. The specific danger to the child’s well-being
may be inferred from parental misconduct standing alone. Boyd, 727 S.W.2d at
533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth 2004, pet. denied).
Drug use and its effect on a parent=s life and her ability to parent may establish
31
an endangering course of conduct. Dupree v. Tex. Dep’t of Protective &
Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ). As a
general rule, conduct that subjects a child to a life of uncertainty and instability
endangers the child’s physical and emotional well-being. See In re S.D., 980
S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). To determine
whether termination is necessary, courts may look to parental conduct occurring
both before and after the child’s birth. In re D.M., 58 S.W.3d 801, 812 (Tex.
App.—Fort Worth 2001, no pet.).
C. Evidence Is Legally and Factually Sufficient to Support
Termination Order
In determining whether the evidence is legally and factually sufficient to
support termination of Mother’s parental rights pursuant to subsection (D) or (E),
we look at whether Mother (1) knowingly placed or knowingly allowed Z.A.S. to
remain in conditions or surroundings that endangered his physical or emotional
well-being or (2) engaged in conduct or knowingly placed Z.A.S. with persons
who engaged in conduct that endangered his physical or emotional well-being.
See Tex. Fam. Code Ann. § 161.001(1)(D), (E). We will examine all of the
evidence in the record, focusing on the allegations of Mother’s drug use,
instability, limited employment, unsafe living conditions, and inability to care for
Z.A.S.
The record demonstrates that Mother used drugs and subjected Z.A.S. to
others who appeared to have used drugs. On the day that Z.A.S. was removed,
32
Mother told Dickinson that she had taken Vicodin and Flexor; the testimony was
unclear as to whether Mother told Dickinson that she did not have prescriptions
for those two drugs. Despite the testimony regarding Mother’s prescription drug
use, the results from an oral swab test clearly showed the presence of
methamphetamine and amphetamines in Mother’s system that day, despite that
Mother denied using drugs. After Z.A.S. was removed, Mother tested positive on
two occasions for methamphetamine and amphetamines, and on one of those
occasions, she also tested positive for marijuana; during the case, she had only
one negative drug test. When Mother returned from Georgia, she failed to show
up for two drug tests, which counted as if Mother had tested positive. See In re
W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (stating that
a factfinder may reasonably infer from a parent’s failure to attend scheduled drug
screenings that the parent was avoiding testing because the parent was using
drugs). Throughout the case, Mother denied using drugs. Mother firmly believed
that she had ―meth-mouth,‖ despite only having used approximately twelve times,
and said that the alleged methamphetamine in her teeth had caused her to test
positive for methamphetamine. While the record appears to show that Mother
was given confusing information about the particular order of the procedures
necessary to get into the Drug Court Program, Mother failed to show up for her
appointments and did not complete her drug evaluation until late in the case,
leaving little time for her to get treatment. Although Mother did complete a
twenty-hour drug class, she did not attempt to get into a drug recovery program
33
and did not believe that she needed treatment, even though she admitted having
quit using drugs on numerous occasions only to later return to using. Moreover,
Mother allowed an older couple, who appeared to be strung out on drugs, to take
care of Z.A.S. without her being present. This is some evidence that Z.A.S.’s
emotional or physical well-being was endangered by Mother’s conduct. See
J.T.G., 121 S.W.3d at 125 (holding parents’ and caregiver’s illegal drug use
supported a finding that the child’s surroundings endangered her physical or
emotional well-being); D.M., 58 S.W.3d at 812–13 (holding evidence that mother
had a drug problem supported endangerment finding under subsection (E)); In re
T.D.L., No. 02-05-00250-CV, 2006 WL 302126, at *7–8 (Tex. App.—Fort Worth
Feb. 9, 2006, no pet.) (mem. op.) (holding that mother’s prior course of conduct
regarding her misuse of prescription drugs, her failure to take action to correct
her drug problem, and her multiple failures of drug tests supported
endangerment finding); In re B.S.W., No. 14-04-00496-CV, 2004 WL 2964015, at
*6–7 (Tex. App.—Houston [14th Dist.] Dec. 23, 2004, no pet.) (mem. op.)
(holding that mother’s history of illegal drug use before and after child was born,
criminal activity, absence caused by imprisonment, and act of leaving child with a
person mother barely knew supported endangerment finding).
The record contains numerous examples of Mother’s instability and limited
employment. As set forth above, Mother had worked only a couple of months as
a secretary during the two years prior to the trial and was supporting herself by
selling scrap metal at the time of the trial. Mother, however, had made only $400
34
at the time of trial by selling scrap metal. As a result, Mother had depended on
others to provide diapers, formula, and housing and had moved frequently
throughout the time the case was pending as her relationships with her
benefactors ebbed and flowed. Additionally, while the case was pending, Mother
moved to Georgia for twelve weeks, forfeiting twelve visits with her son. At the
time of the trial, Mother had been back in Texas for only a month and thus did not
have a history of stable housing. This is some evidence that Mother’s conduct,
including omissions, endangered Z.A.S.’s physical or emotional well-being and
that Mother exposed Z.A.S. to an unstable environment that endangered Z.A.S.’s
physical or emotional well-being. See In re T.C., No. 10-10-00207-CV, 2010 WL
4983512, at *4–5 (Tex. App.—Waco Dec. 1, 2010, pet. denied) (mem. op.)
(holding that although there were recent developments that showed
improvements in mother’s stability, the trial court could reasonably have
determined that any evidence of improvement was short-lived and outweighed by
the extent of her prior history; thus, the evidence supported that mother, by living
in fifteen locations among other things, had engaged in conduct that endangered
child’s physical and emotional well-being); In re J.G.K., No. 02-10-00188-CV,
2011 WL 2518800, at *39 (Tex. App.—Fort Worth June 23, 2011, no pet. h.)
(mem. op.) (holding that mother’s having worked only two days in her life, having
moved constantly, and having depended on others for basic necessities was
some evidence that mother’s conduct, including omissions, endangered her
child’s physical or emotional well-being and that mother exposed her child to an
35
unstable environment that endangered the child’s physical or emotional well-
being).
Additionally, the places that Mother chose for her family to live exhibited
unsafe living conditions for children. When Z.A.S. was removed, he was living
with Mother in a trailer at a junkyard; the trailer did not have electricity, tools and
trash were scattered throughout the living room, and the bedroom was cluttered.
At the time of the trial, Mother was living in a storage shed with no lights or
running water. Trash and television parts littered the floor. Although Mother said
that she had access to the main house on the property and that Z.A.S. would
have a room in the main house when the remodeling was complete, the record
did not contain evidence stating when the remodeling of the main house would
be completed. This is some evidence that Mother’s conduct, including
omissions, created an environment that endangered Z.A.S.’s physical or
emotional well-being. See In re K.M.B., 91 S.W.3d 18, 25 (Tex. App.—Fort
Worth 2002, no pet.) (holding that unsanitary conditions of mother’s home, which
included roach and lice problems, animal feces, terrible odors, and general filth,
supported endangerment finding); see also In re M.F., 173 S.W.3d 220, 224
(Tex. App.—Dallas 2005, no pet.) (holding that child’s living conditions were
unsafe and posed a danger where mother admitted that apartment was cluttered,
full of trash, and had broken latch to balcony door).
Moreover, the record demonstrates that Z.A.S. was subjected to
inappropriate caregivers. When Z.A.S. was three weeks old, Mother left him with
36
a woman whose name and address she did not know. Missy, the stranger,
thought she would watch Z.A.S. overnight, but Mother left him with her for three
weeks. During the time that Missy kept Z.A.S., he became ill, and Mother signed
papers allowing Missy to seek medical treatment for her son; Mother did not
accompany them to the hospital. Although the record contains conflicting
evidence on how often Mother kept Z.A.S. from January 1, 2010, through March
5, 2010, the record is clear that Z.A.S. suffered from bronchitis, dehydration, and
thrush during this time period and that Mother was not the person seeking
medical treatment for Z.A.S. At one point, Z.A.S. was two months behind on his
shots, and Mother called Missy to take him to the doctor. The record also
disclosed that Z.A.S. weighed only eight pounds at three months of age.
Additionally, as mentioned in the discussion on drug use above, Mother allowed
an older couple, whom Mother did not know well, to take Z.A.S. late one evening
even though they appeared to be strung out on drugs. The record also reveals
that Mother, herself, was not an appropriate caregiver because she neglected
Z.A.S.; he was dirty, had an odor, and had a soiled diaper at the time of his
removal. This is some evidence that Mother’s conduct, as well as the conduct of
those she exposed Z.A.S. to, endangered Z.A.S. See J.G.K., 2011 WL 2518800,
at *40 (holding that exposing children to inappropriate caregivers supported
endangerment finding); see also In re S.H.A., 728 S.W.2d 73, 87 (Tex. App.—
Dallas 1987, writ ref’d n.r.e.) (holding that evidence that parents did not properly
feed the child and did not seek appropriate medical treatment for the child was
37
some evidence to support jury’s findings that parents engaged in conduct that
endangered child’s physical or emotional well-being).
Viewing all the evidence in the light most favorable to the termination
judgment and disregarding all contrary evidence that a reasonable factfinder
could disregard, we hold that some evidence exists that will support a factfinder’s
firm conviction or belief that Mother violated subsections (D) and (E). We thus
hold that the evidence is legally sufficient to support termination of Mother’s
parental rights to Z.A.S. under subsections (D) and (E). See Tex. Fam. Code
Ann. § 161.001(1)(D), (E); In re T.H., No. 02-07-00464-CV, 2008 WL 4831374, at
*4–5 (Tex. App.—Fort Worth Nov. 6, 2008, no pet.) (mem. op.) (holding evidence
legally sufficient to support trial court’s 161.001(1)(D) and (E) findings because
evidence showed that father had engaged in conduct that subjected his children
to a life of instability and uncertainty, including living at more than five residences
over five years, living in residences that were ―genuinely dirty‖ and in disarray,
and using illegal drugs); T.D.L., 2006 WL 302126, at *7–8 (holding evidence
legally sufficient to support trial court’s finding on endangerment because
evidence showed that mother had a history of misusing prescription drugs, took
little or no action to correct the problem, failed three drug tests, and blamed her
failure to comply with her service plan on lack of transportation).
Moreover, viewing all of the evidence in a neutral light, the volume of
evidence—set forth extensively above—that a reasonable factfinder could have
credited in favor of subsections (D) and (E) findings is so significant that a
38
factfinder could reasonably have formed a firm conviction or belief of the truth of
the allegations that Mother had violated subsections (D) and (E). See H.R.M.,
209 S.W.3d at 108; C.H., 89 S.W.3d at 28. We therefore hold that the evidence
is factually sufficient to support termination of Mother’s parental rights to Z.A.S.
under subsections (D) and (E). See Tex. Fam. Code Ann. § 161.001(1)(D), (E);
T.H., 2008 WL 4831374, at *4–5 (holding evidence factually sufficient to support
trial court’s 161.001(1)(D) and (E) findings); T.D.L., 2006 WL 302126, at *7–8
(holding evidence factually sufficient to support trial court’s endangerment
finding). We overrule Mother’s first and second issues.
IV. CONCLUSION
Having overruled all issues necessary to final disposition of this appeal, 16
see Tex. R. App. P. 47.1, we affirm the trial court’s judgment terminating
Mother’s parental rights to Z.A.S.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: August 25, 2011
16
Texas law provides that parental rights may properly be terminated when
a trial court has made a finding under either section 161.001(1) or section
161.003, plus a best interest finding under section 161.001(2). See W.E.C., 110
S.W.3d at 240. Because we have held that termination was proper under section
161.001(1)(D) and (E), we need not address Mother=s third issue in which she
challenges the trial court=s termination of her parental rights based on a ground
listed under section 161.001(1)(N).
39