In the Interest of N. E. a Child v. Department of Family and Protective Services ( 2023 )

Opinion issued March 16, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00739-CV
———————————
IN THE INTEREST OF N.E., A CHILD
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Case No. 2021-00150J
MEMORANDUM OPINION
Appellant, E.D. (Mother), appeals the trial court’s final order terminating her
parental rights to her daughter, N.E. (Nora), and appointing the Department of
Family and Protective Services (the Department) as sole managing conservator of
the child.1 In five issues, Mother contends that the evidence is legally and factually
1
We refer to the parties by pseudonyms. See TEX. R. APP. P. 9.8(b)(2).
insufficient to support termination under Family Code Section 161.001(b)(1)(D),
(E), or (O) or the best interest finding under Section 161.001(b)(2), and the trial court
abused its discretion by appointing the Department as the sole managing conservator
of Nora. We affirm.
Background
A. Department’s Removal of Nora
On January 6, 2021, the Department received an intake advising that Mother
tested positive for THC in her urine prenatally and upon admission to deliver her
baby. Nora, who was born later that day, tested positive for marijuana in her
meconium.
On February 1, 2021, the Department filed its original petition for child
protection, conservatorship, and termination of parental rights, accompanied by the
affidavit of Diazeo Critton, a Department caseworker. Critton stated that she met
Mother at the hospital on January 7. When Critton asked Mother about her positive
drug test, Mother said that the last time she used marijuana was in September 2020,
and she could not explain why her urine tested positive. Mother told Critton that she
had also taken a drug test two weeks earlier. Those test results showed Mother was
positive for synthetic marijuana in her urine and negative in her hair.2 In her
2
The Centers for Disease Control and Prevention’s website states:
2
affidavit, Critton stated that Mother was also currently involved in an open
conservatorship case concerning Nora’s sister, Lee,3 and that Mother’s two other
daughters, Victoria and Gabrielle, were adopted by the children’s paternal
grandmother. In the section entitled “DFPS History,” Critton detailed the
investigations leading up to the removal of Mother’s other children and noted
Mother’s ongoing drug use. Critton stated that Nora was released to her paternal
grandmother on January 8, 2021.
On March 29, 2021, following a full adversary hearing, the trial court signed
a temporary order finding there was sufficient evidence to show a continuing danger
Synthetic cannabinoids (“synthetic marijuana,” “Spice,” “K2”) are
various manmade chemicals that some people may use as an
alternative to marijuana. These seemingly innocent little packages of
“fake weed” can cause serious side effects that are very different from
those of marijuana.
Synthetic cannabinoid products can be toxic. As a result, people who
smoke these products can react with rapid heart rate, vomiting,
agitation, confusion, and hallucinations. Some have to get help from
emergency medical services or in hospital emergency departments or
intensive care units.
https://www.cdc.gov/nceh/hsb/chemicals/sc/default.html (last visited March 6,
2023).
3
The case involving Lee is Trial Court Cause No. 2020-00219J, in the 315th District
Court, Harris County, Texas. The Fourteenth Court of Appeals affirmed the trial
court’s judgment terminating Mother’s parental rights to Lee. See In re L.E., No.
14-22-00220-CV, 2022 WL 4354119, at *11 (Tex. App.—Houston [14th Dist.]
Sept. 20, 2022, pet. denied) (mem. op.).
3
to Nora’s physical health and safety and that it was contrary to the child’s welfare to
remain in the home. The order prohibited Mother and R.E. (Father)4 from having
any unsupervised contact or overnight supervision with Nora. The trial court
appointed the Department as Nora’s temporary managing conservator.
On May 9, 2021, the Department filed a status report with the trial court which
included a copy of Mother’s family service plan. The plan required Mother to (1)
maintain stable housing and employment and provide proof of both to her
caseworker, (2) participate in a six-to-eight week parenting class, (3) follow all
recommendations of her substance abuse assessment and service provider, including
inpatient care if deemed appropriate by her provider, (4) participate in random drug
tests, (5) attend NA/AA meetings and provide sign-in sheets to her caseworker, and
obtain a substance abuse sponsor, (6) attend a domestic violence course, (7)
complete individual counseling and a psychiatric evaluation, (8) complete an anger
management class, and (9) attend all court hearings, visits, and permanency
meetings.
On September 14, 2021, the trial court signed an order finding that Mother
had not demonstrated adequate and appropriate compliance with her service plan.
4
Father, whose parental rights to Nora were also terminated in the trial court’s decree
of termination, is not a party to this appeal.
4
B. Trial Proceedings
The trial began on March 8, 2022 and spanned three days. Four witnesses
testified: Celena Amador, the Department caseworker, Mother, Althea Lacewell, the
Child Advocate ad litem, and Nora’s foster mother. Nora was one year old at the
time of trial.
Amador testified that she was assigned to the case a little more than a year
ago and was also the caseworker assigned to the conservatorship case involving
Nora’s sister, Lee. At the Department’s request, the trial court took judicial notice
of its file in Lee’s conservatorship case.
Amador testified that Nora came into the Department’s care after Mother and
child tested positive for marijuana at the time of Nora’s birth. Mother visited Nora
once or twice during the pendency of the case and her last visit took place in July
2021. Amador stated that Mother had not completed her service plan in this case or
in her other conservatorship case. The trial court suspended Mother’s visitation in
August 2021 due to her failure to comply with her service plan and submit to a drug
test, as well as her continued drug use.
Mother tested positive for marijuana in her hair on February 8, 2022. Amador
testified that Mother took another drug test the week before trial, and that she tested
negative in her urine, but she did not submit to a hair follicle test. Amador testified
that she was aware that Mother was using CBD products.
5
As for Mother’s service plan, Amador testified that Mother still needed to
complete inpatient drug treatment. She stated that she had informed Mother several
times that completion of the service was her responsibility. Amador testified that
Mother took a substance abuse assessment but was unsuccessfully discharged.
Mother eventually followed up on the assessment, but she did not successfully
complete it. She successfully completed her parenting services but Amador felt that
she did not learn anything from them. Amador testified that Mother completed a
mental health assessment but she did not follow the assessment’s recommendations.
Amador asked Mother to submit to random drug tests but Mother did not
substantially comply with the requests.
Amador visited Nora in her current placement and testified that “she’s doing
really good” and is “a happy baby.” She stated that Nora was very attached to and
bonded with her foster mother, and that she often gravitated toward her throughout
the visits. Amador stated that Nora was smiling more and happier at each visit, and
Amador was able to see more of Nora’s personality coming out. Amador testified
that Nora was also very bonded with her sister, Lee, who was placed with the same
foster family. Amador testified that the foster mother has provided for all of Nora’s
needs, including taking her to doctor’s appointments, and loved and cared for Nora.
Amador stated that the foster mother was the only person whom Nora has known
her whole life and that the foster mother wished to adopt Nora.
6
Amador testified that Nora is developmentally on target, is close to taking
steps on her own, had a wellness check and dental check in January and February
2022, and is doing very well in daycare. Amador testified that Mother’s parental
rights to Lee were terminated, and Lee remains in the care of her foster mother.
Amador believed that it was in the best interest of the children to remain together
and in their foster parent’s care.
Mother admitted that she tested positive for illegal drugs when Nora was born.
She testified that she was using CBD products because of pain in her arm and that
her doctor knew about it. She stated that she has only tested positive for marijuana
and no other illegal substances.
Mother testified that the “substance abuse lady” told her she was waiting on
the paperwork so Mother could begin an inpatient treatment program, and that she
planned to complete this service. She also testified that she has been consistently
taking CBD products, and the substance abuse lady told her that she might test
positive for marijuana but that they would just have to see when the test results came
back. Mother testified that the court suspended her visitation rights but she still
wanted to visit with Nora.
Mother testified that the only time period during which she did not submit to
a drug test was after she was in a car accident because she did not have reliable
transportation. Although Mother testified that she had a job working from home in
7
November 2021, her doctor told her to continue physical therapy for her back injury
and that she could not continue doing her job and should instead apply for disability
benefits. Mother was not working at the time of trial.
Mother testified that the last time she spoke to Father was when he showed up
at her house in January or February 2022. She stated that Father had been aggressive
toward her and she had recently obtained a protective order against him. She testified
that she had previously moved to another location to prevent Father from contacting
her but that she has not moved from her current residence because she did not want
the Department to think that she was not providing a stable home for Nora. Mother
testified that her caseworker has visited her current home and found it suitable for
young children.
Following the conclusion of testimony, the trial court ordered Mother to
submit to a drug test the next day. The test results showed that Mother was positive
for marijuana in her hair but negative in her urine.
Trial resumed on August 1.5 Amador testified that Mother had not completed
any additional services with the Department since May. When Mother asked for
5
Trial was set to resume on May 31 but the trial court continued the proceedings to
allow time to review four exhibits offered by the Department from the proceedings
in Cause No. 2020-00219J and determine their admissibility.
8
assistance in finding an inpatient drug counseling treatment program, Amador
encouraged her to reach out to her previous substance abuse providers and referred
her back to the information that Amador and one of Mother’s service providers had
previously sent her. Amador also suggested that Mother contact her insurance
provider about rehabilitation services.
Amador testified that Mother had not participated in the required random drug
tests for the past five months. Amador stated that she had asked Mother to submit to
weekly drug tests but that Mother did not respond. Amador testified that Mother
completed her mental health assessment but she did not complete the recommended
twelve-week substance abuse outpatient treatment program. Mother began an anger
management class but she missed appointments which resulted in her being
unsuccessfully discharged from the class. Amador testified that Mother completed a
psychological assessment but did not complete the required follow-up evaluations.
Amador testified that Mother has not made any progress with her court-ordered
services for the past five months.
Amador testified that Nora has been in the same foster placement as Lee since
March 2021, and the sisters are extremely bonded with one other. Nora had a dental
check up on June 10 and a medical checkup on July 18. Amador testified that she
believed it was in Nora’s best interest to remain in her current placement because
9
Nora is with her sibling, and she is very bonded with her foster parent who wishes
to adopt her.
Amador stated that neither Mother nor Father had completed the family
service plan. Amador testified that Father was in jail at the time of the hearing.
Amador testified that Mother’s service plan required that she not be involved in any
criminal activity or other conservatorship proceedings. She stated that Mother was
charged with unauthorized use of a vehicle on November 20, 2021, but that the
charge was later dismissed. Amador testified that neither Mother nor Father has
visited Nora since the last hearing.
Mother admitted testing positive for an illegal substance in March 2022 but
stated that it was due to her use of CBD products. Mother testified that she took the
CBD products for nausea during her pregnancy under the supervision of her
obstetrician, Dr. Dix, who told her it was fine to take them. She testified that her
former substance abuse counselor told her that if she took a certain amount of CBD
product she would test positive but that she understood Mother’s situation. Mother
stated that she was not aware that she was ingesting an illegal level of THC. Mother
acknowledged that she made a mistake when she took the CBD products but stated
that she took it because the promethazine that had been prescribed to her was too
strong. Mother testified that she gave her doctor’s contact information to Amador.
She stated that she did not provide the Department with confirmation from her doctor
10
that he had approved her use of CBD products after she tested positive for drugs in
March 2022 because she did not know she tested positive.
Mother testified that she was taking NA/AA classes through an online app.
She stated that she completed an anger management class and a domestic violence
class and that the only service she did not complete was an inpatient substance abuse
program. She testified that she tried to contact the program but did not have any luck,
and her insurance did not cover inpatient drug treatment. Mother testified that she
contacted her former substance abuse counselor who pointed her to some places but
those programs were full and they told her she had to obtain paperwork from the
Department. Mother stated that when she asked Amador about it, Amador told her
that the Department did not offer inpatient treatment. Mother testified that she was
on a waiting list for a program somewhere in Santa Fe.
Mother testified that she spoke to Father about their daughter’s birthday after
the thirty-day protective order had expired. She stated that they spoke over Facebook
and he gave her a ride the day he was arrested. Mother testified that she currently
has her own residence. She stated that Amador and the guardian ad litem have visited
the home and did not express any concern other than asking her to have a camera
installed. Mother testified that she did not believe it was in Nora’s best interest to
remain in her current foster placement because she has other siblings and family
members.
11
Althea Lacewell was the Child Advocates guardian ad litem assigned to this
case as well as the case involving Lee. Lacewell testified that Child Advocates
believed that it was in Nora’s best interest to remain in her current placement with
her sibling and that Mother’s and Father’s parental rights should be terminated due
to ongoing concerns about the parents’ drug use that had not been remedied.
Lacewell testified that she visited Nora and Lee once a month in their current
placement and that both girls were doing excellent. Lacewell stated that they loved
each other, were involved in activities, and were bonded with their foster family.
Lacewell testified that she had been assigned to the girls’ cases for quite a while and
had the opportunity to watch them grow and thrive. She testified that Nora was very
attached to her foster mother whom she called “mommy,” and that Nora believed
she was her mother due to her being removed shortly after she was born. Lacewell
testified that the foster mother met all of Nora’s physical, medical, and emotional
needs and care.
Lacewell testified that Mother loved her children but Lacewell did not believe
that she had tried hard enough. She stated that although Mother insisted that drugs
were not an issue, Mother tested positive for synthetic marijuana in 2020 which was
unrelated to her use of CBD products. Lacewell testified that this was the second
time she had recommended that Mother complete inpatient drug treatment and that
Mother had refused to go to an inpatient program in 2020.
12
Lacewell testified that Mother has been diagnosed with major depressive
disorder with anxiety and was a victim of domestic violence and other childhood
traumas that have not been addressed. Lacewell testified that Mother completed her
psychological and psychiatric evaluations and the counseling recommendation but
that she did not want to take medication to address her depression. As a result,
Lacewell found it difficult to conclude that Mother could meet her children’s needs
when her own needs have not been met.
Lacewell, Amador, and the attorney ad litem met with Mother in November
2021. Lacewell testified that Mother had bite marks and a black eye and that it took
nearly the entire visit for Lacewell and Amador to convince Mother to protect
herself. Lacewell testified that if the kids had been in the home and Father had
broken down the door, as Mother said he did, the children would have been exposed
to the violence. Lacewell testified that Mother has not done anything to show that
she wants to keep Nora and has not tried to create a bond with her. Lacewell
reiterated that the children were safe, the children’s needs were being met, and they
should remain in their placement.
Lacewell testified that when she visited Mother’s apartment with Amador and
the guardian ad litem, Mother told them that she disclosed to Father where she lived.
Lacewell stated that this disclosure concerned her because of the history of domestic
violence to which the children had been exposed. Lacewell testified that she
13
observed the children after their visit with Mother. She stated that while she did not
observe a change in Nora due to her young age, Lee’s behavior drastically changed,
including wetting her bed, and these concerns were the reason Lee was still in
counseling.
Lacewell testified that she, Amador, and the guardian ad litem have spoken to
Mother about their concern that Father was using drugs and that Mother continued
to defend him. Lacewell was also concerned that Mother had spoken to Father the
previous week. Lacewell did not believe that Mother had demonstrated adequate
parenting skills. She testified that the foster mother has provided health and
nutritional care, guidance and supervision, and a safe home environment to the
children.
The foster mother testified that she has been caring for Nora since she was
born and has provided her with emotional support, physical support, love, and
stability. She introduced Nora to new activities and hoped to watch Nora continue
to grow, explore, learn new words, and become the best person she can be. The foster
mother stated that Nora is very attached to Lee and that the two girls have a very
strong bond. She stated that although Nora is not her biological child she feels like
she is in her heart. She testified that Nora was one year old and both she and Lee call
her “Mama.” The foster mother testified that she wished to adopt both Nora and Lee.
14
At the conclusion of trial, the Department requested that the trial court
terminate Mother’s parental rights based on Section 161.001(b)(1)(D), (E), (N), (O),
and (P). On September 22, 2022, the trial court signed a final decree of termination
finding that clear and convincing evidence existed to support a finding under
subsections (D), (E), and (O), and that termination was in the best interests of the
child.6 This appeal followed.
Sufficiency of the Evidence
In her first three issues, Mother contends that the evidence is legally and
factually insufficient to support termination under Family Code Section
161.001(b)(1)(D), (E), or (O).
A. Standard of Review
A trial court may order termination of the parent-child relationship if the
Department proves, by clear and convincing evidence, one of the statutorily
enumerated predicate findings for termination and also proves that termination of
parental rights is in the best interest of the child. TEX. FAM. CODE § 161.001(b); see
In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012) (recognizing that federal due process
clause and Family Code both mandate “heightened” standard of review of clear and
convincing evidence in parental rights termination cases). The Department must
6
The trial court also terminated Father’s parental rights pursuant to Section
161.001(b)(1)(N) and (O) and found that termination was in the child’s best interest.
15
prove both elements—a statutorily prescribed predicate finding, and that termination
is in the child’s best interest—by clear and convincing evidence. See In re E.N.C.,
384 S.W.3d at 803. The Family Code defines “clear and convincing evidence” as
“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.
When assessing the legal sufficiency of the evidence in a termination
proceeding, we consider all evidence in the light most favorable to the trial court’s
finding and decide “whether a reasonable trier of fact could have formed a firm belief
or conviction that its finding was true.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002);
see City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005). We assume that any
disputed facts were resolved in favor of the finding if a reasonable factfinder could
have done so. In re J.F.C., 96 S.W.3d at 266. When “no reasonable factfinder could
form a firm belief or conviction” that the matter on which the Department bears the
burden of proof is true, we “must conclude that the evidence is legally insufficient.”
Id. In reviewing the evidence’s factual sufficiency, we consider the entire record,
including disputed evidence. Id. The evidence is factually insufficient if, in light of
the entire record, the disputed evidence that a reasonable factfinder could not have
resolved in favor of the finding is so significant that the factfinder could not
reasonably have formed a firm belief or conviction. Id.
16
We give due deference to the factfinder’s findings, and we cannot substitute
our own judgment for that of the factfinder. See In re H.R.M., 209 S.W.3d 105, 108
(Tex. 2006). The fact finder is the sole arbiter when assessing the credibility and
demeanor of witnesses. See id. at 109.
B. Applicable Law
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355, 361 (Tex. 2003). A parent’s right to “the companionship, care,
custody, and management” of his or her child is a constitutional interest “far more
precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758–59 (1982);
see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, we strictly scrutinize
termination proceedings and strictly construe the involuntary termination statutes in
favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
In a case to terminate parental rights under Texas Family Code Section
161.001, the Department must establish, by clear and convincing evidence, that (1)
the parent committed one or more of the enumerated acts or omissions justifying
termination and (2) termination is in the best interest of the child. TEX. FAM. CODE
§ 161.001(b). Only one predicate finding under Section 161.001(b)(1) is necessary
to support a judgment of termination when there is also a finding that termination is
in the child’s best interest. In re A.V., 113 S.W.3d at 362.
17
C. Predicate Finding
Family Code Section 161.001(b)(1)(E) provides that the trial court may
terminate a parent’s rights if the court finds by clear and convincing evidence that
the parent “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). Within the context of Subsection (E),
endangerment encompasses “more than a threat of metaphysical injury or the
possible ill effects of a less-than-ideal family environment.” Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). To “endanger” means to expose a
child to loss or injury or to jeopardize a child’s emotional or physical
health. Id.; see In re M.C., 917 S.W.2d 268, 269 (Tex. 1996).
It is not necessary to establish that a parent intended to endanger a child to
support termination under subsection (E). In re J.D.G., 570 S.W.3d 839, 851 (Tex.
App.—Houston [1st Dist.] 2018, pet. denied) (citing In re M.C., 917 S.W.2d at 270).
Nor is it necessary to establish that the parent’s conduct was directed at the child or
caused actual harm; rather, it is sufficient if the parent’s conduct endangers the
child’s well-being. See Boyd, 727 S.W.2d at 533; Walker v. Tex. Dep’t of Fam. &
Protective Servs., 312 S.W.3d 608, 616 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied). Danger to a child’s well-being may be inferred from parental
misconduct. Boyd, 727 S.W.2d at 533; In re K.P., 498 S.W.3d 157, 171 (Tex.
18
App.—Houston [1st Dist.] 2016, 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. In re S.R., 452 S.W.3d
351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). 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 S.M., 389 S.W.3d 483, 491–92 (Tex. App.—
El Paso 2012, no pet.).
Endangering conduct does not have to occur in the child’s presence. In re I.T.,
No. 01-18-01013-CV, 2019 WL 1996515, at *8 (Tex. App.—Houston [1st Dist.]
May 7, 2019, no pet.) (mem. op.). A parent’s past endangering conduct may create
an inference that past conduct may recur and further jeopardize the child’s present
or future physical or emotional well-being. See In re J.D.G., 570 S.W.3d at 851
(citing In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth 2001, no pet.)). “As
a general rule, conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well-being of a child.” In re R.W., 129 S.W.3d
732, 739 (Tex. App.—Fort Worth 2004, pet. denied).
Mother argues that the evidence was legally and factually insufficient to
support the trial court’s finding under Subsection 161.001(b)(1)(E) because the
evidence of endangerment amounted to one criminal case that was dismissed, two
19
positive drug tests for marijuana, conflicting testimony regarding her contact with
Father, and inconclusive testimony regarding her alleged mental health issues.
The evidence that Mother was charged with unauthorized use of a vehicle—a
charge that was later dismissed—is not clear and convincing evidence that Mother’s
conduct endangered Nora. Similarly, the evidence that Mother suffered from major
depressive disorder with anxiety and did not want to take medication for her mental
health issues is alone insufficient to support a finding of endangering conduct under
Subsection (E).
A mother’s illicit drug use during her pregnancy, however, can support a firm
belief or conviction that the parent has engaged in endangering conduct. See In re
I.T., 2019 WL 1996515, at *9; In re S.I.–M.G., No. 02-12-00141-CV, 2012 WL
5512372, at *9 (Tex. App.—Fort Worth Nov. 15, 2012, no pet.) (mem. op.); In re
M.L.B., 269 S.W.3d 757, 760 (Tex. App.—Beaumont 2008, no pet.); Dupree v. Tex.
Dep’t of Protective & Regul. Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995,
no writ). The Texas Supreme Court has held that “a parent’s use of narcotics and its
effect on his or her ability to parent may qualify as an endangering course of
conduct.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re M.E. –M.N.,
342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied) (“Drug use and its
effect on a parent’s ability to parent may establish an endangering course of
conduct.”); Toliver v. Tex. Dep’t of Fam. & Protective Servs., 217 S.W.3d 85, 98
20
(Tex. App.—Houston [1st Dist.] 2006, no pet.); In re U.P., 105 S.W.3d 222, 233
(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (“Endangerment may include
evidence of drug addiction and its effect on a parent’s life and his ability to parent.”);
see also In re E.R.W., 528 S.W.3d 251, 264 (Tex. App.—Houston [14th Dist.] 2017,
no pet.) (“[I]llegal drug use may support termination under subsection 161.001(1)(E)
because ‘it exposes the child to the possibility that the parent may be impaired or
imprisoned.’”); In re A.M., 495 S.W.3d 573, 579–80 (Tex. App.—Houston [1st
Dist.] 2016, pet. denied) (“Because it significantly harms the parenting relationship,
drug activity can constitute endangerment even it if transpires outside the child’s
presence.”) (quoting Boyd, 727 S.W.2d at 533)); In re K.C.F., No. 01-13-01078-CV,
2014 WL 2538624, at *10 (Tex. App.—Houston [1st Dist.] June 5, 2014, no pet.)
(mem. op.) (“[A] parent’s decision to engage in illegal drug use during the pendency
of a termination suit, when the parent is at risk of losing a child, may
support a finding that the parent engaged in conduct that endangered the child’s
physical or emotional well-being.”).
The record shows that Mother tested positive for marijuana at the time of
Nora’s birth and that Nora tested positive for marijuana in her meconium. In her
affidavit accompanying the Department’s petition, Critton stated that she visited
Mother at the hospital where Mother told her that she had taken a drug test two weeks
21
earlier during her pregnancy. The test results showed Mother had tested positive for
synthetic marijuana in her urine.
The evidence also showed that the trial court suspended Mother’s visitation
with Nora in August 2021 because she had failed to comply with her services to date
and had not stopped her drug use or submitted to a drug test. The evidence showed
that Mother tested positive for marijuana in February 2022 and, again, in March
2022 after the trial court ordered her to submit to a random drug test. See In re
L.M.R., No. 14-17-00597-CV, 2018 WL 285121, at *6 (Tex. App.—Houston [14th
Dist.] Jan. 4, 2018, pet. denied) (mem. op.) (“Continued illegal drug use after a
child’s removal jeopardizes parental rights and may demonstrate an endangering
course of conduct.”). Between March and August 2022, the Department asked
Mother to submit to drug tests on a weekly basis but Mother did not comply with
any of the requests. Mother’s failure to appear for regular drug testing permitted the
trial court to infer Mother was using illegal drugs. See In re L.E., No. 14-22-00220-
CV, 2022 WL 4354119, at *8 (Tex. App.—Houston [14th Dist.] Sept. 30, 2022, pet.
denied) (mem. op.); In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th
Dist.] 2009, no pet.) (concluding Mother’s failure to continue appearing for court-
mandated drug tests, despite her testimony citing scheduling and transportation
problems, allowed factfinder to infer that her failure to submit to drug screenings
indicated she was avoiding testing because she was using drugs).
22
At the time of Nora’s removal, Mother had an open conservatorship case
involving Nora’s sister, Lee. The trial court in this case took judicial notice of its file
in that case, Cause No. 2020-002219J, and the Fourteenth Court of Appeals later
affirmed the trial court’s judgment terminating Mother’s parental rights to Lee. See
In re L.E., 2022 WL 4354119, at *11. In its opinion, the court of appeals detailed
Mother’s substance abuse issues—in particular, Mother’s positive test for marijuana
in January 2021 and her admission to a caseworker in December 2019 that she was
using drugs—and concluded that the trial court could have found that Mother had
engaged in endangering conduct by using illegal drugs while the case was pending.
See id. at *8. The court held that the evidence was legally and factually sufficient to
support the trial court’s Subsection 161.001(b)(1)(E) findings. See id.
In addition to the evidence of Mother’s continued illicit drug use, the record
also includes evidence that Mother remained in contact with Father despite his
history of domestic violence toward her. When Lacewell and Amador met Mother
in November 2021, Mother had bite marks and a black eye and it took nearly the
entire visit for Lacewell and Amador to convince Mother to protect herself. Mother
testified that Father was aggressive toward her but she still believed that he was a
good father to their children. Mother admitted that she had spoken with Father when
he “popped up” at her house in January or February 2022. Although Mother obtained
a protective order against Father, she admitted that she continued communicating
23
with him after the thirty-day order expired. She also got a ride from him the day he
was arrested and communicated with him while he was in jail about their daughter’s
approaching birthday. See L.B. v. Tex. Dep’t of Fam. and Protective Servs., No. 03-
09-00429-CV, 2010 WL 1404608, at *5 (Tex. App.—Austin Apr. 9, 2010, no pet.)
(mem. op.) (concluding evidence of exposure to domestic violence and drug use
would allow reasonable fact-finder to form firm belief or conviction that Mother
engaged in course of conduct that endangered her children’s physical and emotional
well-being).
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude the trial court could have formed a firm belief or conviction that Mother
engaged in conduct that endangered Nora’s physical or emotional well-being. See In
re J.F.C., 96 S.W.3d at 266. Further, in view of the entire record, we conclude that
the disputed evidence is not so significant as to prevent the trial court from forming
a firm belief or conviction that Mother engaged in conduct that endangered Nora’s
physical or emotional well-being. See id.
Because we conclude the evidence is legally and factually sufficient to support
the trial court’s finding under Section 161.001(b)(1)(E), we overrule Mother’s
second issue. We need not address Mother’s arguments that the evidence is legally
and factually insufficient to support the trial court’s findings under Sections
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161.001(b)(1)(D) and (O). See In re A.V., 113 S.W.3d at 362 (stating only one
predicate finding is necessary).
D. Best Interest of the Child
In her fourth issue, Mother contends that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of her parental rights
was in Nora’s best interest. See TEX. FAM. CODE § 161.001(b)(2).
There is a strong presumption that the best interest of a child is served by
keeping the child with the child’s natural parent. In re R.R., 209 S.W.3d 112, 116
(Tex. 2006); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.]
2012, no pet.). Prompt and permanent placement of the child in a safe environment
is also presumed to be in the child’s best interest. TEX. FAM. CODE § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding: (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) the acts or omissions of the parent which may indicate
the existing parent-child relationship is not appropriate; and (9) any excuse for the
25
parent’s acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
These factors are not exhaustive, and evidence is not required on all of them to
support a finding that terminating a parent’s rights is in the child’s best interest. Id.;
In re D.R.A., 374 S.W.3d at 533. Moreover, we note that evidence supporting
termination under one of the grounds listed in Section 161.001(b)(1) can also be
considered in support of a finding that termination is in the best interest of the child.
See In re C.H., 89 S.W.3d 17, 28 (Tex. 2002) (holding same evidence may be
probative of both Section 161.001 grounds and best interest).
In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment, including: the child’s age and physical and mental vulnerabilities;
whether there is a history of substance abuse by the child’s family or others who
have access to the child’s home; the willingness and ability of the child’s family to
seek out, accept, and complete counseling services and to cooperate with and
facilitate an appropriate agency’s close supervision; the willingness and ability of
the child’s family to effect positive environmental and personal changes within a
reasonable period of time; whether the child’s family demonstrates adequate
parenting skills, including providing the child with minimally adequate health and
nutritional care, a safe physical home environment, and protection from repeated
exposure to violence even though the violence may not be directed at the child; and
26
an understanding of the child’s needs and capabilities. TEX. FAM. CODE ANN. §
263.307(b); In re R.R., 209 S.W.3d at 116.
1. Children’s Desires
At the time of trial, Nora was one year old and, thus, too young to testify about
her desires. See In re T.G.R.-M., 404 S.W.3d 7, 16 (Tex. App.—Houston [1st Dist.]
2013, no pet.). When a child is too young to express her desires, the fact finder may
consider whether the child has bonded with the proposed adoptive family, is well-
cared for by them, and whether she has spent minimal time with a parent. See In re
S.R., 452 S.W.3d at 369. A child’s need for permanence through the establishment
of a “stable, permanent home” has been recognized as the paramount consideration
in a best interest determination. See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—
Dallas 2007, no pet.). Therefore, evidence about the present and future placement of
the child is relevant to the best interest determination. See In re C.H., 89 S.W.3d at
28.
The evidence showed that Nora is very bonded with her foster family and that
her foster mother, whom Nora calls “mommy,” is the only person Nora has known
her entire life due to her removal shortly after she was born. Nora is also very
attached to her sister, Lee, who lives with the same foster family. The record showed
that her foster mother met all of Nora’s physical, medical, and emotional needs and
care, and that the foster parent wished to adopt Nora and Lee. This factor weighs in
27
favor of termination of Mother’s parental rights. See Holley, 544 S.W.2d at 372;
TEX. FAM. CODE ANN. § 263.307(b).
2. Children’s Needs and Parental Abilities of Those Seeking Custody
In addition to the evidence showing that Nora’s foster family provided for all
of Nora’s needs—medical, emotional, psychological, and nutritional—the record
showed that Nora was developmentally on target and thriving in her foster
placement. Since Nora was placed with her foster family, she appeared happier at
each of Amador’s visits and her personality had begun to emerge.
In contrast, Mother had not demonstrated the ability to parent Nora. Nora was
removed shortly after her birth due to Mother’s testing positive for marijuana, and
Mother’s visitation with Nora was suspended in August 2021 due to Mother’s failure
to comply with her service plan and submit to drug tests as well her continued drug
use. Lacewell testified that Mother loved Nora but Lacewell did not believe that
Mother had tried hard enough or demonstrated adequate parenting skills. Mother
testified that she had a home and that Amador and Lacewell had found it suitable for
young children. Mother testified that she did not have a job at the time of trial and
was waiting on disability benefits. Thus, there was no evidence that Mother received
any income to provide for Nora’s needs.
We may also consider the parent’s past performance as a parent in evaluating
her present abilities to provide for the child. See In re C.H., 89 S.W.3d at 28.
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Although evidence of past misconduct or neglect alone may not be sufficient to show
present unfitness, a factfinder may measure a parent’s future conduct by her past
conduct indicating that it is in a child’s best interest to terminate her parental rights.
See In re A.N.D., No. 02-12-00394-CV, 2013 WL 362753, at *2 (Tex. App.—Fort
Worth Jan. 31, 2013, no pet.) (mem. op.). Here, the record showed that Mother’s
parental rights to Lee were terminated in February 2022—one year after Nora was
born but before trial in this case began—based on the trial court’s finding, among
others, that Mother had engaged in conduct which endangered the physical or
emotional well-being of the child. See TEX. FAM. CODE ANN. §161.001(b)(1)(E).
These factors weigh in favor of termination. See Holley, 544 S.W.2d at 372; TEX.
FAM. CODE ANN. § 263.307(b).
3. Present and Future Emotional and Physical Danger to Children
A parent’s past conduct is probative of her future conduct when evaluating
the child’s best interest. See In re O.N.H., 401 S.W.3d 681, 684 (Tex. App.—San
Antonio 2013, no pet.). Thus, the evidence discussed in support of the trial court’s
findings under Section 161.001(b)(1)(E) is probative as to potential danger in
determining the children’s best interest. See Walker, 312 S.W.3d at 619.
Nora was removed shortly after she was born because Mother and child tested
positive for marijuana. Despite the fact that Mother’s drug use was the reason for
Nora’s removal and Mother had another pending conservatorship case due, in part,
29
to her continued substance abuse, Mother continued to use drugs during the
pendency of this case. A parent’s substance abuse supports a finding that termination
is in the best interest of the child. In re E.R.W., 528 S.W.3d at 266 (noting factfinder
can give “great weight” to “significant factor” of drug-related conduct); see also
Interest of Z.H., No. 14-19-00061-CV, 2019 WL 2632015, at *6 (Tex. App.—
Houston [14th Dist.] June 27, 2019, no pet.) (mem. op.) (considering parents’ drug
use in the context of evaluating the present and future emotional and physical danger
to the child). The trial court could have also considered the evidence that Mother
remained in contact with Father despite his history of domestic violence toward her,
and the testimony that Lacewell and Amador had to convince Mother to protect
herself after she showed up to their meeting with bruises and bite marks, when
evaluating the present and future physical and emotional danger to Nora.
Because the record contains evidence showing that Mother’s drug use would
persist as well as the possibility that Mother would continue to expose herself to
domestic violence and thus present a future emotional danger to Nora, this factor
weighs in favor of termination. See Holley, 544 S.W.2d at 372; TEX. FAM. CODE
ANN. § 263.307(b).
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude the trial court could have formed a firm belief or conviction that
termination of Mother’s parental rights was in Nora’s best interest. See In re J.F.C.,
30
96 S.W.3d at 266. Further, in view of the entire record, we conclude that the disputed
evidence is not so significant as to prevent the trial court from forming a firm belief
or conviction that termination of Mother’s parental rights was in Nora’s best interest.
Id.
We overrule Mother’s fourth issue.
E. Appointment of Sole Managing Conservator
In her fifth issue, Mother contends the trial court abused its discretion by
appointing the Department as the sole managing conservator of Nora because the
Department failed to introduce sufficient evidence demonstrating that Mother would
cause Nora harm.
When the parental rights of all living parents of a child are terminated, the
trial court must appoint a “competent adult, the Department of Family and Protective
Services, or a licensed child-placing agency as managing conservator of the
child.” TEX. FAM. CODE § 161.207(a); see In re S.M.M., No. 01-22-00482-CV, 2022
WL 17981669, at *12 (Tex. App.—Houston [1st Dist.] Dec. 29, 2022, pet. denied)
(mem. op.); In re J.D.G., 570 S.W.3d at 856. Conservatorship determinations are
reviewed for an abuse of discretion and will be reversed only if the decision is
arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re
J.D.G., 570 S.W.3d at 856. An order terminating the parent-child relationship
divests a parent of legal rights and duties with respect to the child. See TEX. FAM.
31
CODE § 161.206(b). Once we overrule a parent’s challenge to an order terminating
her parental rights, the trial court’s appointment of the Department as sole managing
conservator may be considered a “consequence of the termination.” In re J.D.G.,
570 S.W.3d at 856; In re A.S., 261 S.W.3d 76, 92 (Tex. App.—Houston [14th Dist.]
2008, pet. denied).
Because we have overruled Mother’s challenges to the trial court’s order
terminating her parental rights, the order divested Mother of her legal rights and
duties related to Nora. See TEX. FAM. CODE § 161.206(b); In re J.D.G., 570 S.W.3d
at 856. Consequently, Mother lacks standing to challenge the portion of the order
appointing the Department as Nora’s conservator. See In re S.M.M., 2022 WL
17981669, at *12 (affirming termination of father’s parental rights and holding that
father, who had been divested of his legal rights to child, lacked standing to
challenge portion of order appointing Department as child’s conservator); In re
J.D.G., 570 S.W.3d at 856 (same).
We overrule Mother’s fifth issue.
Conclusion
We affirm the trial’s court’s decree of termination.
Amparo Guerra
Justice
Panel consists of Justices Landau, Countiss, and Guerra.
32