In the Interest of K.B., Child v. Department of Family and Protective Services ( 2024 )

Opinion issued February 27, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00658-CV
———————————
IN THE INTEREST OF K.B., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2021-004499J
MEMORANDUM OPINION
The Texas Department of Family and Protective Services (“DFPS” or “the
Department”) sought termination of the parental rights of appellants C.J.A.
(“Mother”) and W.B. (“Father”) to their minor daughter, K.B. (“Kate”).1 After a
bench trial, the trial court found that there was clear and convincing evidence to
1
We use a pseudonym for the minor child to protect her privacy.
support two statutory predicate grounds for termination of each parent’s rights
under Texas Family Code subsections 161.001(b)(1)(E) and (O) (“subsection (E)”
and “subsection (O)”). See TEX. FAM. CODE § 161.001(b)(1)(E), (O). The court
also found that there was clear and convincing evidence that terminating each
parent’s rights was in Kate’s best interest.
On appeal, Mother asserts that the evidence was legally and factually
insufficient to support the termination of her parental rights under both
subsections. Father concedes the evidence was sufficient to support the trial court’s
findings under subsection (O) but contends the evidence was legally and factually
insufficient to support a finding of endangering conduct under subsection (E). Both
parents argue that the evidence is legally and factually insufficient to support a
finding that termination of parental rights was in Kate’s best interest. Father
challenges the trial court’s decision to appoint DFPS as Kate’s sole managing
conservator. We affirm.
Background
When Kate was born on February 3, 2021, the Department received a
referral regarding neglectful supervision by Mother. It was reported that Mother
previously had ten children removed from her care and that Mother had a long
2
history of substance abuse and prior terminations.2 A Department investigator
visited newborn Kate in the NICU. Kate was in the NICU due to her 2.5-pound
birth weight, and she remained there until she weighed at least 4 pounds. The
investigator interviewed both parents and learned that Kate was Father’s first child.
Both parents denied having a criminal history or drug history. When Kate was
ready to be discharged from the hospital two weeks later, both parents agreed to a
safety plan. The terms provided that Father would be the primary caregiver and
Mother would have supervised visitation. Kate left the hospital with her parents.
An investigator followed up three days later, visited Kate at home, and noted no
issues.
Both parents submitted to drug testing on March 4, 2021. By March 25,
2021, the Department learned that both parents had tested positive for cocaine
and/or benzoylecgonine, a major metabolite of cocaine. The Department filed its
petition for conservatorship and for termination of the parent-child relationship.
Before the adversary hearing, the Department received a subsequent referral due to
Kate having a fracture of her right femur. Neither parent could explain how she
was injured. The Department determined that due to the parents’ positive drug tests
and Kate’s unexplained injuries, she needed to be removed from her parents’ care.
The Department was awarded temporary managing conservatorship in April. Kate
2
At trial the caseworker testified that mother previously had ten children removed
from her care. The record contains termination decrees as to nine children.
3
was placed with “fictive kin,” meaning that her foster parents were the adoptive
parents of four of Mother’s children, who were Kate’s biological siblings.
Eventually, the case proceeded to trial.
Trial began in October 2022. At trial, the caseworker testified that Kate
came into the Department’s care in April 2021. The Department created service
plans for each parent. Mother’s service plan required her to complete parenting
classes, participate in a psychosocial assessment, psychiatric assessment, and
substance abuse assessment and follow all recommendations from each, complete
random drug testing and abstain from drug use, and provide stable proof of income
and housing. She completed the substance abuse assessment and psychosocial
assessment, but she did not attend the individual counseling and parenting classes
recommended by the assessments. The caseworker testified that though she
referred Mother to providers for the counseling, Mother never engaged in it. When
the caseworker asked Mother about it, Mother would say that she was working on
it. The caseworker visited Mother’s residence and found it to be “very cluttered
and not child safe.”
The caseworker testified that although Mother attends visitation with Kate,
she does not interact with Kate for most of the visit. Instead, she spends a lot of
time on her phone. The caseworker told Mother that she needs to be more engaged
during the visits, but the caseworker did not see any improvement.
4
The caseworker testified that despite reminding Mother of the importance of
her sobriety during the case, Mother continued to test positive for illegal drugs.
This was concerning to the caseworker because it showed that Mother had not
addressed the major concern that the Department had with her as a parent. Her
drug use had been an issue for over a year in the current case and during her prior
cases with DFPS. The caseworker did not believe that Mother had demonstrated an
ability to provide a safe and stable environment for Kate.
The evidence showed that Mother tested positive for cocaine and
benzoylecgonine (a major metabolite of cocaine) in March, April, and May 2021,
and March, July, and August 2022. She also tested positive for alcohol in April and
May 2021 and March 2022. She did not appear for drug testing in August 2021.
As to Father, the caseworker testified that he had no other children. His
service plan required him to complete parenting classes, to participate in a
psychosocial assessment and substance abuse assessment and follow all
recommendations from each, to complete random drug testing and abstain from
drug use, and to provide proof of stable housing and income.
Father completed the psychosocial assessment and its recommendations,
which included a psychiatric evaluation. There were no further recommendations
from the psychiatric evaluation. He provided proof of stable housing, but his lease
had expired in the months before trial, and he had not provided a current one. He
5
also provided proof of his income. The caseworker testified that Father attends
visitation but is not fully engaged with Kate for the entire visit.
Father’s drug use remained a concern for the caseworker. Father had not
demonstrated sobriety during the pendency of the case. He had positive drug tests
from one month after Kate’s birth until two months before trial began. The
evidence showed that Father tested positive for cocaine and/or benzoylecgonine in
March, April, May, August, September, October, November, and December 2021
and in January, March, June, July, and August 2022. He had invalid results in
August 2021 and April and May 2022. He did not appear for drug testing in
August 2021. The caseworker testified that, in her opinion, the issue that brought
Kate to the attention of the Department has not been resolved by either parent, and
neither parent has demonstrated an ability to be an appropriate caregiver.
Regarding Kate’s foster home, the caseworker testified that Kate is in the
care of a foster family who has adopted four of Mother’s other children. Kate was
placed with the family when she was six months old. At the time of trial, ten
children lived in the home. When asked, the caseworker testified that she did not
have concerns about Kate’s ability to thrive in a home with ten children, as all her
needs were met, and she had a happy relationship with each of her family
members. The foster family also maintains close contact with another family that
adopted some of Mother’s children. The two families ensure that all the siblings,
6
including Kate, maintain a relationship. The caseworker explained that while
mother’s rights to ten other children have been terminated, Kate has a relationship
with all of them.
The guardian ad litem testified that she had observed Kate in her current
placement. The placement was appropriate, and Kate was bonded to both the foster
mother and foster father. The guardian ad litem did not believe that the number of
children in the home was detrimental to Kate. She testified that being in a home
with biological siblings was a benefit to Kate’s well-being. The guardian ad litem
testified that she had observed Mother during visitation. She described Mother as
having a “detached type of relationship” with Kate. Mother would interact with
Kate for basic needs but did not have a loving, playful relationship with her. The
guardian ad litem was unable to visit Mother’s home because Mother refused to
provide the address.
As to Father’s visitation, the guardian at litem observed that he did not know
how to respond to Kate’s needs. She testified that if Kate was crying, Father would
ask what to do and was not aware of how to deal with a small child. The guardian
ad litem’s main concern with Kate returning to Mother and Father was that both
had repeatedly stated that they were the only ones caring for Kate when she broke
her femur, yet neither of them could say how it happened. The guardian ad litem
thus had no assurance that Kate would be safe in the future.
7
The foster mother testified that Kate had been in her home since August
2021. When Kate first arrived, she had some developmental delays, yet despite
being born premature, she has been able to meet her milestones. The foster mother
testified that she advocated for Kate to be placed in her home because it is
important that Kate know her siblings and that they all remain in close contact. The
foster mother stated that Kate receives extra attention from the other children in the
home because she is the baby of the family. There is physically enough room for
Kate, and the foster parents meet all Kate’s physical, emotional, educational, and
financial needs. The foster mother testified that she maintains a relationship with
the family that adopted Kate’s other siblings, and they do sibling visits regularly.
Even though maintaining a relationship between the siblings is not required, the
two adoptive families believe that it is important to maintain the sibling bond. The
foster mother described that Kate could name her siblings and that she is “very
sassy in a good way.” The foster mother testified that it is her desire to adopt Kate.
Trial recessed and resumed in June 2023.3 The caseworker testified that
since the October 2022 trial setting, Mother had completed a substance abuse
assessment. The guardian ad litem testified that she had been guardian ad litem for
three of Mother’s children in prior cases with the Department, and, she had known
3
In the months between trial dates, the foster parents and Father’s aunt and uncle
reached a mediated settlement agreement that provided for Kate to have regular
visits with the aunt and uncle. The aunt and uncle had previously intervened in the
case.
8
the family for over eight years. It was her recommendation that the court terminate
parental rights to both parents because they had not been able to complete their
service plans, despite having additional time between the trial settings.
Mother testified briefly. She stated that she had missed appointments for
counseling, but she wanted to complete them. She also testified that she was
waiting for a call back from the provider about parenting classes. She denied using
cocaine while pregnant with Kate or since Kate was born. Father testified that he
had participated in his service plan and attended several visits with Kate. He
testified that children are not allowed in his housing, and he had no issue with
Kate’s placement with her siblings. After closing arguments, the trial court
terminated both parents’ parental rights pursuant to subsections (E) and (O) and
made a finding that termination was in the child’s best interest. The Department
was awarded sole managing conservatorship of the child.
Both parents appealed. On appeal, Mother challenges both predicate act
findings and the best interest determination. Father concedes that there is sufficient
evidence to terminate his rights under subsection (O). He challenges the court’s
finding under subsection (E) and the best interest finding. He also argues that the
trial court abused its discretion in awarding sole managing conservatorship to the
Department.
9
Sufficiency of the Evidence
Mother challenges the sufficiency of the evidence to support the statutory
predicate grounds for termination found by the trial court. She challenges the legal
and factual sufficiency of the evidence supporting the trial court’s findings under
subsections (E) and (O). Father challenges the sufficiency of the evidence to
support the trial court’s finding under subsection (E). He concedes that the trial
court had sufficient evidence for its subsection (O) finding. Both parents challenge
the sufficiency of the evidence supporting the trial court’s finding that termination
of parental rights is in Kate’s best interest.
A. Standard of Review
A parent’s right to the “companionship, care, custody, and management” of
a child is an interest “far more precious than any property right.” Santosky v.
Kramer, 455 U.S. 745, 758–59 (1982) (quotations omitted); see Troxel v.
Granville, 530 U.S. 57, 65 (2000) (stating that this interest “is perhaps the oldest of
the fundamental liberty interests recognized by” the United States Supreme Court).
We strictly construe involuntary termination statutes in favor of the parent. In re
E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). However, although parental rights are
“of constitutional magnitude,” they are not absolute. In re C.H., 89 S.W.3d 17, 26
(Tex. 2002). It is “essential” that courts do not sacrifice the child’s emotional and
physical interests merely to preserve the parent’s rights. Id.10
Family Code section 161.001 balances the competing interests of the parent
and the child by permitting termination of parental rights only if the party seeking
termination establishes both that (1) the parent’s acts or omissions satisfy at least
one statutory predicate ground for termination; and (2) termination is in the child’s
best interest. In re A.C., 560 S.W.3d 624, 630 (Tex. 2018); see TEX. FAM. CODE
§ 161.001(b). Both the Family Code and the Due Process Clause of the United
States Constitution require proof by clear and convincing evidence in termination
of parental rights cases. E.N.C., 384 S.W.3d at 802; see TEX. FAM. CODE
§ 161.001(b); Santosky, 455 U.S. at 769 (stating that clear and convincing standard
of proof “adequately conveys to the factfinder the level of subjective certainty
about his factual conclusions necessary to satisfy due process”). 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; In re
J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
Because the standard of proof at trial is clear and convincing evidence, on
appeal we apply a heightened standard of review when examining the sufficiency
of the evidence. In re J.W., 645 S.W.3d 726, 741 (Tex. 2022); A.C., 560 S.W.3d at
630. In reviewing a legal sufficiency challenge, we must determine whether a
reasonable factfinder could have formed a firm belief or conviction that the finding
11
under review was true. J.W., 645 S.W.3d at 741 (quotations omitted). Even under
this heightened standard, we must grant deference to the factfinder, “who heard the
witnesses and evaluated their credibility.” In re J.F.-G., 627 S.W.3d 304, 311–12
(Tex. 2021). We view the evidence in the light most favorable to the finding. J.W.,
645 S.W.3d at 741. We assume the factfinder resolved disputed facts in favor of its
finding if a reasonable factfinder could do so, and we disregard all evidence that a
reasonable factfinder could have disbelieved or found to have been incredible. Id.
We may not, however, disregard undisputed facts that do not support the finding.
Id.; A.C., 560 S.W.3d at 630–31. The factfinder remains the “sole arbiter of the
witnesses’ credibility and demeanor.” J.F.-G., 627 S.W.3d at 312 (quotation
omitted).
In reviewing a factual sufficiency challenge, we must consider the entire
record—including evidence both supporting and contradicting the finding—and
determine whether the factfinder could have reasonably formed a firm belief or
conviction that the finding was true. C.H., 89 S.W.3d at 25–26; see A.C., 560
S.W.3d at 631 (stating that factual sufficiency review “requires weighing disputed
evidence contrary to the finding against all the evidence favoring the finding”). If
the disputed evidence that a reasonable factfinder could not have credited in favor
of the finding is so significant that the factfinder could not reasonably have formed
a firm belief or conviction that the finding was true, the evidence is factually
12
insufficient. A.C., 560 S.W.3d at 631; In re H.R.M., 209 S.W.3d 105, 108 (Tex.
2006) (per curiam).
To affirm a termination judgment on appeal, we need uphold only one
predicate ground—in addition to upholding a challenged best interest finding—
even if the trial court based its termination ruling on more than one predicate
ground. In re N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam); In re A.V., 113
S.W.3d 355, 362 (Tex. 2003). However, termination of parental rights under
subsection (E) can serve as the basis for termination of a parent’s rights to another
child in the future. See TEX. FAM. CODE § 161.001(b)(1)(M); N.G., 577 S.W.3d at
234. As a result, due process requires review of a trial court’s findings under
subsection (E) “even when another ground is sufficient for termination, because of
the potential consequences for parental rights to a different child.” N.G., 577
S.W.3d at 235.
B. Statutory Predicate Grounds for Termination
1. Termination under subsection (E)
The trial court may terminate the parent-child relationship if it 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).
13
“Endanger” means to expose a child to loss or injury or to jeopardize the
child’s emotional or physical well-being. J.W., 645 S.W.3d at 748. This means
“more than a threat of metaphysical injury or the possible ill effects of a less-than-
ideal family environment.” Id. (quotations omitted).
Under subsection (E), the Department must show that “the endangerment
was the result of the parent’s conduct, including acts, omissions, or failure to act.”
In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). This subsection requires more than a single act or omission to support
termination; instead, the statute requires “a voluntary, deliberate, and conscious
course of conduct by the parent.” Id.; In re J.T.G., 121 S.W.3d 117, 125 (Tex.
App.—Fort Worth 2003, no pet.). In evaluating the sufficiency of the evidence
under subsection (E), we may consider conduct both before and after the
Department removed the child from the home. S.R., 452 S.W.3d at 360.
It is not necessary that the parent’s conduct be directed at the child or that
the child actually suffer injury. J.W., 645 S.W.3d at 748. “The specific danger to
the child’s well-being may be inferred from parental misconduct standing alone.”
In re N.J.H., 575 S.W.3d 822, 831 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied); S.R., 452 S.W.3d at 360. A parent’s conduct that subjects a child to a life
of uncertainty and instability endangers the child’s physical and emotional well-
being. In re M.D.M., 579 S.W.3d 744, 765 (Tex. App.—Houston [1st Dist.] 2019,
14
no pet.). A parent’s past endangering conduct may create an inference that the
conduct may recur and further jeopardize the child’s present or future physical or
emotional well-being. In re J.D.G., 570 S.W.3d 839, 851 (Tex. App.—Houston
[1st Dist.] 2018, pet. denied). The endangering conduct may occur before the
child’s birth and either before or after the child’s removal by the Department.
Walker v. Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). Drug use and its effects on the
parent’s life and ability to parent may establish an endangering course of conduct.
In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); In re A.A.M., 464 S.W.3d 421, 426
(Tex. App.—Houston [1st Dist.] 2015, no pet.) (“Illegal drug use creates the
possibility that the parent will be impaired or imprisoned and thus incapable of
parenting.”).
a) There is legally and factually sufficient evidence to support the
trial court’s finding that Mother’s conduct endangered Kate.
Mother argues that the evidence is legally and factually insufficient to
support the trial court’s finding that she endangered Kate because there is no
medical documentation or evidence as to how Kate broke her femur. Mother also
argues that there is no causal connection between her drug use and endangerment.
She argues that the only evidence of her drug use is drug tests that were
administered before Kate’s birth. She argues that the evidence shows she was
15
willing to effect positive personal changes because she had no positive drug tests
after August 2022.
Texas courts have repeatedly held that drug use and its effects on the
parent’s life and ability to parent may establish an endangering course of conduct
under subsection (E). See, e.g., J.O.A., 283 S.W.3d at 345; A.A.M., 464 S.W.3d at
426. Illegal drug use “exposes the child to the possibility that the parent may be
impaired or imprisoned.” In re S.C.F., 522 S.W.3d 693, 700 (Tex. App.—Houston
[1st Dist.] 2017, pet. denied); In re A.M., 495 S.W.3d 573, 579 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied). Drug activity “significantly harms the
parenting relationship” and can constitute endangerment even if it occurs outside
of the child’s presence. A.M., 495 S.W.3d at 579. “In addition, 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.” Id. at 580(quotation omitted). A factfinder can infer that a parent’s failure to submit to court-
ordered drug testing indicates that the parent was avoiding testing because they
were using drugs. In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th
Dist.] 2009, no pet.).
The record contains evidence that Mother has used drugs for many years.
She tested positive for cocaine and benzoylecgonine in 2017, 2019, and October
16
2020. The October 2020 test was also positive for alcohol. Kate was born in
February 2021. Mother tested positive for cocaine and benzoylecgonine after
Kate’s birth and during the pendency of this case in March, April, and May 2021
and in March, July, and August 2022. She also tested positive for alcohol on three
occasions during this time. While there are no positive drug test results in the
record after August 31, 2022, that is not the same as proof that Mother has tested
negative for drugs for any period. There are no drug test results at all in the record
after August 31, 2022. Even if the trial court considered the absence of positive
tests in the record after August 2022 as evidence of improvement, evidence of
improved conduct of a short duration “does not conclusively negate the probative
value of a long history of drug use and irresponsible choices.” J.O.A., 283 S.W.3d
at 346. Mother tested positive at least twelve time both before and after Kate’s
birth and while the case was pending. The evidence of Mother’s history of illegal
drug use, her positive drug tests, and her lack of follow through when referred to
counseling supported an inference by the trial court that Mother was at risk for
continuing drug use. See In re Y.G. No. 01-22-00181-CV, 2022 WL 3362953, at
*14 (Tex. App.—Houston [1st Dist.] Aug. 16, 2022, pet. denied) (mem. op.)
(stating two negative drug tests among multiple positive drug tests did not negate
history of drug abuse plus history of illegal drug use and prior termination to other
17
children based on drug use that led to neglect supports inference that Mother at risk
for future drug abuse).
Mother cites the Fourteenth Court of Appeals’s decision in In re L.C.L., 599
S.W.3d 79, 84–86 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (en banc),
for the proposition that a parent’s drug use standing alone, without evidence of
how that behavior endangers a child, cannot support termination under subsection
(E). The Fourteenth Court stated that “[a] plain language reading of the statute
requires a causal connection between [the mother’s] drug use and the alleged
endangerment.” Id. at 84. In this case, Mother argues there is no evidence that her
drug use negatively affected Kate. We first note that this Court expressly has
declined to adopt the Fourteenth Court’s rationale in L.C.L. See In re D.D.D., No.
01-23-00078-CV, 2023 WL 4872399, at *10 (Tex. App.—Houston [1st Dist.] Aug.
1, 2023, no pet.) (mem. op.). Furthermore, this case is factually distinguishable
from L.C.L. because, here, there is evidence that Mother’s drug use did endanger
Kate. There is evidence that Mother used drugs both before and after Kate was
born. Kate was born prematurely at only 2.5 pounds. She required a NICU stay due
to her low birth weight. Given hospital staff concerns, the Department entered into
a safety plan with both parents when Kate left the hospital. The plan required
Father to be the primary caregiver and allowed Mother to have supervised
18
visitation. While under this plan, both parents tested positive for drugs in March
2021, and Kate appeared at the hospital with a broken femur in April 2021.
The fact that the record does not contain details related to Kate’s femur
injury does not preclude the trial court from finding that the injury is evidence of
Mother’s endangering conduct. The Department originally created a safety plan for
Kate that required Father to supervise Mother’s interactions with her. The record
contains documentation from five prior DFPS cases in which Mother had her rights
terminated to nine other children. The most recent termination was only four
months before Kate was born. In these cases, Mother was offered services and did
not complete them. The Department became further involved when Kate’s femur
was broken while in the care of Mother and Father. Mother argues that there is no
proof of endangerment because the cause of the broken bone is not in the record.
The record shows that Kate was in the care of her parents at the time of the injury
and yet neither of them could explain how the injury occurred.
Reviewing all the evidence in the light most favorable to the termination
findings under subsection (E), we conclude a reasonable factfinder could have
formed a firm belief or conviction as to the truth of the findings that Mother
endangered Kate through her acts or omissions. See J.O.A., 283 S.W.3d at 344.
Further, in view of the entire record, we conclude the disputed evidence is not so
significant as to prevent the trial court from forming a firm belief or conviction that
19
termination of Mother’s parental rights to Kate was warranted under subsection
(E). Id. at 345. Accordingly, we conclude the evidence is legally and factually
sufficient to support the subsection (E) finding as to Mother.
b) There is legally and factually sufficient evidence to support the
trial court’s finding that Father’s conduct endangered Kate.
On appeal, father does not challenge the trial court’s termination finding
under subsection (O). See A.V., 113 S.W.3d at 362 (appellate court need only
uphold one predicate finding and best interest termination). He only challenges the
evidence to support that termination was in Kate’s best interest. Nevertheless, we
review the trial court’s finding under subsection (E) because of its potential
consequences for his parental rights to future children. N.G., 577 S.W.3d at 235.
On appeal, Father argues that the evidence does not support a finding under
subsection (E) because the trial court did not establish a direct causal connection
between his drug use and actual harm to the child. He argues that there is no
evidence he impaired the child or physically harmed her. He states that he was
cooperative with the Department and visited regularly with Kate throughout the
case. As discussed above, our court has not adopted the rationale that a finding
under subsection (E) requires a causal link between drug use and endangerment.
D.D.D., 2023 WL 4872399, at *10. The evidence establishes that Father’s drug use
was so pervasive and serious that the factfinder could reasonably infer that it was
endangering. In re M.A.J., 612 S.W.3d 398, 407–408 (Tex. App.—Houston [1st
20
Dist.] 2020, pet. denied) (op. on reh’g) (concluding that evidence of positive drugs
tests after department received referral that parent used narcotics was sufficient to
support finding of endangerment under subsection (E)).
Kate left the hospital after a stay in the NICU when she was about three
weeks old. At that time, both parents agreed to a safety plan with the Department.
Under the plan, Father was to be the primary caregiver and allow Mother to have
supervised visitation with Kate. When Kate was about two months old, she broke
her femur. While both parents stated that they were the only people caring for
Kate, neither of them could identify the cause of her injury.
Both parents tested positive for drugs on March 4, 2021, about a week after
leaving the hospital with Kate. Father tested positive for high levels of cocaine,
benzoylecgonine, and norcocaine. After Kate was removed from the parents’ care,
Father continued to use drugs throughout the pendency of the case. He tested
positive for cocaine and/or benzoylecgonine in April, May, August, September,
October, November, and December 2021 and in January, March, July, and August
2022. He had invalid results in August 2021 and April and May 2022. This and
numerous courts of appeals have recognized that a parent’s decision to use illegal
drugs while the termination suit is pending, and the parent is at risk of losing his
child, may support a finding of endangering conduct under subsection (E). D.H. v.
Tex. Dep’t of Family & Protective Svcs., 652 S.W.3d 54, 62 (Tex. App.—Austin
21
2021, no pet.) (citing cases from First, Second, Third, and Fifth courts of appeals).
“A parent’s engaging in illegal drug activity after agreeing not to do so in a service
plan for reunification with [his] children is sufficient to establish clear and
convincing proof of voluntary, deliberate, and conscious conduct that endangered
the well-being of [his child].” In re M.T.W., 01-11-00162-CV, 2011 WL 6938542,
at *13 (Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.) (mem. op.)
(quotation omitted). Illegal narcotics use creates the possibility that a parent will be
impaired or imprisoned, and thus, incapable of parenting, supporting termination.
Walker, 312 S.W.3d at 617. Father did not demonstrate sobriety during the
pendency of the case.
Reviewing all the evidence in the light most favorable to the termination
finding under subsection (E), we conclude that a reasonable factfinder could have
formed a firm conviction or belief as to the truth of the finding that Father engaged
in endangering conduct. See J.O.A., 283 S.W.3d at 344. The disputed evidence that
a reasonable factfinder could not have credited in favor of this finding is not so
significant that a factfinder could not reasonably have formed a firm belief or
conviction as to the truth of these termination findings. Id. at 345. We hold that the
evidence is legally and factually sufficient to support the predicate termination
finding under subsection (E).
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2. Termination under subsection (O)
Subsection (O) provides that the court may order termination of the parent-
child relationship if the court finds by clear and convincing evidence that the
parent has failed to comply with the provisions of a court order that specifically
established the actions necessary to obtain the return of the child who has been in
the Department’s care for not less than nine months. TEX. FAM. CODE
§ 161.001(b)(1)(O).
Father concedes that the evidence was sufficient to support the trial court’s
predicate finding under subsection (O) as to his ability to follow a service plan. We
have also held that the evidence is sufficient to support the trial court’s finding of
endangerment under subsection (E) as to both parents. Having concluded that the
evidence is legally and factually sufficient to support the trial court’s finding of
endangerment under subsection (E) as to Mother, we need not discuss Mother’s
challenge to the court’s findings under subsection (O). See A.V., 113 S.W.3d at 362
(requiring appellate court to uphold one predicate act finding and best interest
determination to affirm decree).
C. Best Interest Finding
In addition to a statutory predicate ground for termination, the trial court
must also find by clear and convincing evidence that termination is in the child’s
best interest. TEX. FAM. CODE § 161.001(b)(2). There is a strong presumption “that
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the best interest of a child is served by keeping the child with a parent,” see R.R.,
209 S.W.3d 112, 116 (Tex. 2006) (per curiam), but there is also a presumption that
“the prompt and permanent placement of the child in a safe environment” is in the
child’s best interest. TEX. FAM. CODE § 263.307(a). The best-interest inquiry is
“child-centered and focuses on the child’s well-being, safety, and development.”
A.C., 560 S.W.3d at 631.
In reviewing the trial court’s best interest finding, we consider several non-
exclusive factors including: (1) the child’s desires; (2) the child’s emotional and
physical needs now and in the future; (3) the emotional and physical danger to the
child now and in the future; (4) the parental abilities of the individuals seeking
custody; (5) whether programs are available to assist those individuals; (6) the
plans for the child by those individuals; (7) the stability of the proposed placement;
(8) the parent’s acts or omissions that may indicate the existing parent-child
relationship is improper; and (9) any excuse for the parent’s acts or omissions.
E.N.C., 384 S.W.3d at 807 (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976)).
The court need not have evidence on every element to make a valid finding
on best interest. In re J.M.T., 519 S.W.3d 258, 268 (Tex. App.—Houston [1st
Dist.] 2017, pet. denied); In re J.G.S., 574 S.W.3d 101, 122 (Tex. App.—Houston
[1st Dist.] 2019, pet. denied) (“The absence of evidence about some of the factors
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would not preclude a factfinder from reasonably forming a strong conviction or
belief that termination is in the child’s best interest.”). But a lack of evidence “does
not constitute clear and convincing evidence.” E.N.C., 384 S.W.3d at 808.
No one factor is controlling, but in a particular situation, analysis of a single
factor may be adequate to support a finding that termination is in the best interest
of the child. J.M.T., 519 S.W.3d at 268; see J.D.G., 570 S.W.3d at 853 (“In some
cases, undisputed evidence of only one factor may be sufficient to support a
finding that termination is in the child’s best interest; in other cases, there could be
more complex facts in which paltry evidence relevant to each consideration
mentioned in Holley would not suffice to support termination.”) (quotations
omitted). Proof of acts or omissions relevant to a predicate ground for termination
does not relieve the Department of proving that termination is in the child’s best
interest, but the same evidence may be probative of both elements A.C., 560
S.W.3d at 631–32. We may consider circumstantial evidence, subjective factors,
“and the totality of the evidence as well as the direct evidence.” J.D.G., 570
S.W.3d at 854 (quotations omitted).
Mother contends that Kate’s best interest cannot be fully addressed without
determining whether a home where ten children reside, like the foster parents’
home, can be in the best interest of a child. Father argues that there is insufficient
evidence to support the trial court’s best interest finding as to him. The Department
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responds that the number of children in the home is irrelevant under the
circumstances and that the evidence supports the trial court’s finding.
With respect to the desires of the child, there is no direct evidence about
Kate’s desires because she was less than two years old at the time of trial. See
Holley, 544 S.W.2d at 371–72 (factor one). “When children are too young to
express their desires, the fact finder may consider that the children have bonded
with the foster family, are well-cared for by them, and have spent minimal time
with [their] parent.” In re J.D., 436 S.W.3d 105, 118 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). Kate was removed from her parents’ care when she was two
months old and placed with the foster family when she was six months old. At the
time of trial, she had been with the family for more than a year. The placement was
considered a kinship placement because the foster parents had adopted several of
Kate’s siblings. The foster mother advocated for Kate to be placed in their home
because it was important to her that Kate and her siblings remain in close contact.
The foster mother testified that Kate gets extra attention because she is the baby in
the family and that there is enough space for Kate and her siblings in the house.
Additionally, the foster mother testified that she is in contact with the adoptive
parents of Kate’s other siblings, and the two groups of siblings get together
regularly. The foster mother desired to adopt Kate. This evidence weighs in favor
of the best-interest finding.
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Next, evidence of each parent’s drug use is relevant, not only to their
parenting abilities and to the stability of the home they would provide, but also to
the emotional and physical needs of the child, now in and in the future, and to the
emotional and physical danger in which the child could be placed, now and in the
future. See Holley, 544 S.W.2d at 371–72 (factors two, three, four, and seven); In
re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.)
(pattern of illegal drug use suggested mother was not willing and able to provide
child with safe environment—a primary consideration in determining child’s best
interest). A factfinder may afford great weight to the significant factor of drug-
related conduct. N.J.H., 575 S.W.3d at 834 (considering parent’s history of drug
use in affirming trial court’s determination that termination was in best interest of
child). A parent’s drug use is a condition indicative of instability in the home
environment because it exposes a child to the possibility that a parent may be
impaired or imprisoned. See A.M., 495 S.W.3d at 579.
As discussed above, the evidence shows that Mother previously had nine
children removed from her care, and she had a long history of substance abuse. She
also continued to test positive for illegal drugs throughout the pendency of the
case. She tested positive for cocaine and benzoylecgonine in 2017, 2019, and
October 2020. The October 2020 test was also positive for alcohol. Kate was born
in February 2021. Mother tested positive for cocaine and benzoylecgonine in
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March, April, and May 2021 and in March, July, and August 2022. She also tested
positive for alcohol on three occasions during this time. The caseworker described
Mother’s continued drug use as concerning, given the many years she had used
drugs and her drug use while under the threat of termination of her parental rights.
A parent’s exercise of poor judgment currently and in the past demonstrates an
inability to provide adequate care for the child.” In re J.M. No. 01-14-00826-CV,
2015 WL 1020316, at *7 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015, no pet.)
(mem. op.).
Although Mother completed a psychosocial assessment early in the case, she
did not complete the subsequent recommendations for counseling. She also did not
complete a psychiatric assessment. Mother failed to complete parenting classes.
She testified that she was waiting for a call to facilitate completing them, but she
made no efforts to complete the required classes during the pendency of the case.
The caseworker described Mother’s home as very cluttered and not safe for a child,
and Mother refused to provide the guardian ad litem with her address for a home
visit. A parent’s inability to provide adequate care for her children, unstable
lifestyle, lack of a home and income, lack of parenting skills, and poor judgment
may be considered when looking at the child’s best interest. In re J.D., 436 S.W.3d
105, 119 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
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Father likewise tested positive for drugs throughout the case. He tested
positive for cocaine and/or benzoylecgonine in March, April, May, August,
September, October, November, and December 2021 and in January, March, July,
and August 2022. He had invalid results in August 2021 and April and May 2022.
In re J.M., 2015 WL 1020316, at *7 (stating parent’s poor judgment demonstrates
inability to provide adequate care for child). The trial court could reasonably infer
that Father was at risk for future drug abuse.
Further, the trial court heard evidence that Kate sustained a femur fracture
while in the care of her parents. Though they were her sole caregivers, neither
parent could explain how Kate sustained the injury. This evidence is supportive of
the trial court’s best-interest finding under the third Holley factor: the emotional
and physical danger to the child now and in the future. See Holley, 544 S.W.2d at
371–72.
With respect to programs available to assist the parents in promoting the
child’s best interest, the trial court may properly consider whether each parent
complied with the court-ordered service plan for reunification with the child. See
E.C.R., 402 S.W.3d at 249. Father’s compliance with certain court-ordered tasks
during the proceedings weighs in his favor and against the best-interest finding. He
completed a psychosocial assessment and a psychiatric evaluation. He engaged in
regular visitation with Kate. He provided proof of stable housing at the beginning
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of the case, but his lease had expired, and the caseworker did not have an updated
lease. He provided proof of his income, but he did not complete parenting classes.
Even though Father participated in several of the court ordered services, the
evidence also shows that he was unable to refrain from illegal drug use.
Conversely, with respect to the foster parents’ abilities to parent Kate and to
provide a stable home, the evidence shows that Kate was thriving.4 The trial court
heard directly from the foster mother that Kate was thriving in the placement. The
court heard of the family’s love for Kate and their desire to raise her through
adulthood with her siblings, including both Kate’s biological siblings and their
other children. The court heard testimony that, though not required to do so, the
family tries to maintain a bond among all of Mother’s biological children,
including Kate’s siblings in another adoptive home. Kate was thriving in the foster
family. See In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet.
denied) (stating that stability and permanence are important to upbringing of child
and affirming finding that termination was in child’s best interest when child was
thriving in foster care). We defer to the trial court’s assessment of the foster
mother’s credibility and demeanor in crediting this testimony as evidence in favor
4
Father concedes this point in his brief, stating, “it was evident that [Kate]’s current
placement wanted to maintain a relationship with [her] biological family members.
To that end, Father likewise was not opposed to [Kate] remaining with her current
placement—in fact, he agreed that she should stay with her siblings as his present
housing situation did not permit children.” App. Br. at 48.
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of the trial court’s best-interest finding. See In re A.B., 437 S.W.3d 498, 503 (Tex.
2014); In re S.G.A.R., No. 01-18-00291-CV, 2018 WL 4705835, at *7 (Tex.
App.—Houston [1st Dist.] Oct. 2, 2018, no pet.) (mem. op.).
Considering the evidence in a light favorable to the trial court’s judgment,
we conclude that a reasonable factfinder could have formed a firm belief or
conviction that termination of Mother’s and Father’s parental rights was in Kate’s
best interest. See J.F.C., 96 S.W.3d at 266.
We overrule each parent’s challenge to the trial court’s best interest finding.
Conservatorship Determination
In a final issue, Father challenges the trial court’s decision not to appoint
him as Kate’s sole managing conservator. 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-playing
agency as managing conservator of the child.” TEX. FAM. CODE § 161.207(a);
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); 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. CODE § 161.206(b). Once
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we overrule a parent’s challenge to an order terminating his parental rights, the
trial court’s appointment of the Department as sole managing conservator may be
considered a “consequence of the termination.” J.D.G., 570 S.W.3d at 856(quotation removed).
Because we have overruled Father’s challenge to the portion of the trial
court’s order terminating his parental rights, the order has divested Father of his
legal rights and duties related to Kate. See TEX. FAM. CODE § 161.206(b); In re
D.K.W., Jr., No. 01-17-00622-CV, 2017 WL 6520439, at *5 (Tex. App.—Houston
[1st Dist.] Dec. 21, 2017, pet. denied) (mem. op.). Therefore, Father does not have
standing to challenge the portion of the order appointing DFPS as Kate’s
conservator. J.D.G., 570 S.W.3d at 856. We overrule Father’s issue related to
managing conservatorship.
Conclusion
We affirm the decree of the trial court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
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