in the Interest of S.W.W. and D.B.L., Children v. Texas Department of Family and Protective Services ( 2022 )

Affirmed and Memorandum Opinion filed December 29, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00503-CV
IN THE INTEREST OF S.W.W., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Cause No. 2019-04540J
MEMORANDUM OPINION
The trial court terminated a father’s parental rights to his ten-year-old son,
S.W.W. (“Sam”), on predicate grounds of endangering conduct and failure to
comply with a family service plan. The court also found that termination was in
Sam’s best interest and appointed the Department of Family and Protective
Services (the “Department”) as Sam’s sole managing conservator. On appeal, the
father challenges the legal and factual sufficiency of the evidence to support the
predicate grounds, as well as the best interest finding, and he also challenges the
admissibility of certain drug test results. Because we conclude that legally and
factually sufficient evidence supports the trial court’s endangerment and best
interest findings, and that appellant has not demonstrated error as to his evidentiary
complaint, we affirm the judgment.
Background
Sam was born on December 16, 2011. Sam’s parents (“Mother” and
“Father”) had another son, Brian, born in September 2009. Mother had a daughter,
Diane, born in December 2015; Father was not Diane’s biological father, although
he considered her his child.1
On September 19, 2018, the Department received a referral alleging drug use
in the home and that Father was unable to appropriately supervise, protect, and
care for Diane. On November 13, 2018, a new intake came in alleging that Father
hit Sam, but the allegations of physical abuse were ruled out.
On March 25, 2019, Father submitted to a random urine analysis and tested
positive for cocaine and marijuana. On December 16, 2019, Father submitted to a
random hair follicle drug screening and tested positive for amphetamines,
methamphetamine, cocaine, benzoylecgonine, cocaethylene, and cocaine
metabolite.
On December 27, 2019, Brian, Sam, and Diane were removed from Father’s
care pursuant to an emergency order for protection that named the Department the
children’s temporary sole managing conservator. The Department’s caseworker,
Ashley Williams, submitted a removal affidavit and averred that the Department
sought to remove all three children—Brian, Sam, and Diane—from Father’s care
due to Father’s inability to provide a drug-free home environment, lack of
consistent participation in Family Based Safety Services, and continued drug use.
The family had been participating in Family Based Safety Services since April
1
“Sam,” “Brian,” and “Diane” are pseudonyms. See Tex. R. App. P. 9.8.
2
2019. Despite completing drug-related services twice, Father continued to test
positive for illegal substances. Based on Father’s December 2019 drug test, the
Department was concerned that not only was Father continuing to engage in drug
use but that he had “escalated” to using new illegal substances while in treatment.
Father could not provide any viable placements for the children outside of the
home. Mother’s whereabouts were unknown at the time of removal.
The removal affidavit included Father’s criminal history, which showed
charges for assault in 1995, drug possession in 1996, 1997, 2004, 2006, 2007, and
2015, and driving with an invalid license in 2004, 2007, and 2014. The affidavit
also detailed the results of Father’s drug tests performed before removal, many of
which showed positive results for cocaine, marijuana, amphetamines, and
methamphetamine.
The affidavit also included the family’s CPS history. From December 2017
to August 2018, when Sam was approximately six years old, the Department
investigated Mother and Father for neglectful supervision. The allegations were
that Mother and Father exposed the children to drug use. Mother and Father used
drugs and alcohol while caring for the young children. The children also were
“often exposed” to domestic violence by Mother and Father and were exposed “to
situations that require judgement beyond their maturity.” The home was infested
with fleas, resulting in rashes and skin irritations on the children. Mother tested
positive for methamphetamine and Father tested positive for cocaine. The
Department ruled the investigation as “Reason to Believe.”
The Department filed a petition to terminate the parental rights of Mother
and Father. The trial on the Department’s petition began briefly on January 27,
2022, then recessed to allow Father more time to complete his services, and
resumed on May 2, 2022. Mother did not appear at trial and has not appealed the
3
order terminating her parental rights. The following evidence was presented at
trial regarding Sam, who was ten years old at the time of trial and who is the only
subject child of this appeal.2
Department caseworker LaToya Townsend testified regarding the referral
and removal. According to Townsend, the Department had information that when
the children came into care, the parents’ house was “not up to par” and “[t]here
was drug paraphernalia out.”
A service plan was created for Father and was adopted by court order. Per
the plan, Father completed his parenting classes, his substance abuse assessment, a
psychological evaluation, individual counseling, and individual substance abuse
counseling, and he provided proof of housing and income. Townsend agreed that
the plan also required Father to “maintain a clean and sober lifestyle.” However,
drug test results admitted during trial showed that Father regularly tested positive
for illegal drugs from 2017 (pre-removal) through the time of trial in 2022.
Although Father successfully completed substance abuse counseling by
December 2020, he later went back into outpatient counseling and had four
sessions to complete, as of the time of trial in May 2022. According to Townsend,
Father requested to go back into substance abuse counseling in November 2021:
“He stated that he wanted help for his addiction. He actually asked for inpatient.
When I offered him the inpatient, he stated that that would conflict with his work,
so then we put him back in outpatient counseling.”
The trial was continued in January 2022 to allow Father to complete his
services. In May 2022 when trial resumed, the Department was concerned that he
2
During this case, Father signed a mediated settlement agreement naming the
Department Brian’s permanent managing conservator and Father as possessory conservator.
Father is not Diane’s biological father and therefore had no parental rights to that child that were
subject to termination.
4
still had four classes to complete. Townsend had not received weekly attendance
notes regarding Father’s attendance at AA and NA, nor proof of a sponsor. In
Townsend’s opinion, Father’s drug use posed a danger to the children, specifically
in the form of neglect. Townsend believed that the children needed someone who
“won’t be under the influence that could possibly cause them further hurt, harm, or
danger.” When asked to be more specific, Townsend testified that the children had
to be placed with relatives after removal, and those relatives caused “further abuse
to them.” So, in Townsend’s view, if Father could not stay sober enough to take
care of the children, they “could be put in the hands of someone else that can hurt
them.” Father did not have a support system, and the Department was concerned
that, if Sam was returned to Father and Father continued to use drugs, then Sam
could “end up back in care.”
Father admitted to Townsend that he used cocaine. Townsend testified that
a parent using cocaine is not a healthy environment for a child. Townsend
believed that, even if Father was not using drugs in front of the children, it still
posed a danger to the children: “I mean, he could OD [overdose,] then what?”
She also said that it was not a healthy environment for children to be with a parent
“who can basically disappear for three months.”
Father was absent from Sam’s life from December 2021 until March 2022,
and Townsend was unable to make contact with Father during that time. Father
contended he had COVID during that time period, but Townsend never received
any documentary proof of such a diagnosis. Father missed at least five visits
during that time. When Father was absent, Sam started showing aggression in the
foster home: “[J]ust outbursts. He would break out and cry.”
At the time of trial, Sam and Diane were in the same foster home and had
been there since November 2021. Sam and Diane had always lived together and
5
were well bonded. The foster parents were willing to adopt both Sam and Diane,
which aligned with the Department’s preference that Sam and Diane stay together.
For Sam and Diane, the potential adoptive parents told Townsend that “they would
work out a visitation plan between the children and Father.” The Department
previously considered placing Sam and Diane with their maternal grandfather in
Montana, but the grandfather said that “he felt as though the kids were here in a
good place and they were having visitations with their father, so he did not want to
interrupt that for the kids.”
According to Townsend, Father had not done “anything that would get the
children moving forward out of foster care.” The impact from being in foster care
caused Sam to have issues with “depression, outbursts, sadness. . . . [H]e felt
abandoned.” However, Townsend saw a difference in Sam since being in foster
care. Sam saw a therapist to work “though the disappointment of [Father] not
showing up,” and his foster placement worked with him “as far as working through
the issues of, basically, being abandoned by [his] parents.” By the time of trial, the
foster family was “doing a lot of family things that . . . lifted [Sam’s] moral[e].
[Sam and Diane were] just really happier kids now.” Townsend said that Sam was
thriving in his current placement.
Townsend acknowledged that Father is “a decent guy,” who was pleasant
and cooperative with her. She had no doubt that he loved his children. His visits
with the children went well. It was clear that he was very bonded with his
children, and the children were bonded with him. Townsend testified that Father
was employed and had an appropriate place to live with adequate room for the
children. She agreed that Father expressed a willingness to get help for his drug
abuse problems. However, Townsend believed it was in Sam’s best interest for
Father’s parental rights to be terminated.
6
Father testified. When asked “isn’t it true that you have continued to use
drugs in spite of completing some of your services,” Father answered, “Yes.”
According to Father, he was “triggered to use . . . by the court.” Father said he
requested additional counseling but could not go on an inpatient basis because he
would be unable to work and would lose his apartment and everything he had.
According to Father, he had not completed his last four counseling classes because
he did not have direct contact with his counselor. Father admitted that it was not a
“good idea” to parent while testing positive for cocaine. Father’s “drug of choice”
was cocaine, but he only “dibble[d] and dabble[d]” in drugs; he was not an
“everyday user.” He “probably” last used drugs in December 2021. He agreed
that buying cocaine “[f]rom a guy’s house” was a dangerous thing to do.
Father went to AA meetings “once a week or twice a week,” and was in the
process of getting a new sponsor. Father knew that he was supposed to send his
AA and NA attendance records to Townsend but admitted that he did not. He was
“open and honest” with the Department about his desire to get help for his drug
addiction, which started in 2002 after a workplace injury.
Father denied that he was not in contact with Townsend during December
2021 to March 2022. He testified that he told her each time before missing a visit,
because he still felt sick. According to Father, he had COVID for seven weeks.
Father testified that he worked forty hours a week on “overhead doors and
gates” for employment. He lived in a two-bedroom apartment, and he still had
some of the children’s belongings there.
Father loved his children: “They’re all my heart. All I got. That’s my only
family.” He did not want his rights terminated because he wanted to continue
being in their lives. Father never paid child support but testified that he was never
ordered to do so. He bought them clothes and Christmas gifts.
7
Father admitted that he had not done everything he could to get the children
out of foster care.
Erin Orozco with Child Advocates was one of the guardians ad litem in the
case. The children were doing well in their placements. When Father cancelled
visits, Sam expressed “that it was difficult not seeing his father for a while and
then being able to see him and then not being able to.” Orozco acknowledged that
there was a bond between Father and the children, but she agreed with the
Department’s recommendation of terminating Father’s parental rights to Sam and
that doing so was in Sam’s best interest. Sam’s current placement was willing to
continue sibling visits with Brian.
Lynna Dizon, the other guardian ad litem, testified that “[a]ll three children
love their father, and they love to visit with him. So I don’t think that’s even in
dispute about that bond.” She nonetheless had concerns because “there comes a
time when the children’s best interest has to come first. And they really do need
permanency. . . . [Sam had] lingered in foster care for over two years.” She said
that Father was not willing to go into inpatient treatment but without inpatient
treatment, Dizon did not believe any changes would be made: “They haven’t been
made up to now.”
Dizon spoke with Sam and Diane “in an appropriate developmental manner”
about the possibility of termination. They understood that their father would no
longer be making any decisions for them and that their adoptive parents would be
making all decisions for them, such as who they could and could not have contact
with, including their father.
Dizon believed the foster family could provide a safe and stable environment
for Sam and Diane. The children had adjusted to their foster family and “just
8
want[ed] to be in a stable placement.” Dizon believed that the three months that
Father was absent “just did a lot of damage to all three children.”
Trial recessed again for a few weeks. When it resumed, Father’s attorney
recalled Townsend and asked Townsend if she had “any real concerns about
[Father’s] ability as a parent.” Townsend initially answered, “No,” but then said,
“The fact that he has the issue with the substance [abuse], and he’s also,
throughout the case, [] taken [a] very long period of disappearing acts from the
kids.” She further stated that the Department was concerned that his “continued
drug use will inhibit his parenting.” Townsend also stated that Father had switched
providers for his substance abuse counseling but still had not completed all
necessary classes. When Townsend reached out to the new provider, “no one
reached back out to [her] explaining to [her] how this would be paid for. . . . But
he did not successfully complete the substance abuse [classes],” which was still a
concern for the Department.
Father also testified again. He testified that, at a recent visit, Sam said, “I
don’t want to lose you, Dad.”
Sam’s foster mother testified. She and her husband were both educators.
She taught music in an elementary school, and he was a junior high science
teacher. They had one adopted child, who “absolutely adore[d] having siblings.”
The foster parents had fostered children before where “they haven’t always gotten
along . . . but [their daughter] does really get along with [Sam].”
Sam and Diane called their foster parents “Mom” and “Dad.” Sam had
adjusted to being in the foster home. According to Sam’s foster mother, Sam
indicated that he “want[ed] to stay” with his foster family “forever.” Sam talked
with his foster parents about the future and was “positive looking forward to the
future.” His foster mother also said that Sam “mentioned that if he doesn’t get to
9
go back with his dad, that he would like to stay” with his foster family. The foster
parents were willing to adopt Sam and were willing to allow him to keep in contact
with Father, as long as it was in Sam’s best interest. The foster mother said that
one of Sam’s goals is to be a professional soccer player, so the parents enrolled
him in a summer soccer camp and had plans for him to play on a weekly team once
school started.
At the conclusion of trial, the trial court found clear and convincing evidence
that Father engaged in conduct that endangered Sam’s physical or emotional well-
being and that Father did not comply with the provisions of a court-ordered service
plan. See Tex. Fam. Code § 161.001(b)(1)(E), (O). The court further found that
terminating Father’s parental rights was in Sam’s best interest and appointed the
Department Sam’s permanent managing conservator. See id. §§ 161.001(b)(2),
161.207(a). Based on these findings, the trial court signed a final order terminating
Father’s parental rights to Sam.
Father timely appealed.
Analysis
Father presents four issues for review. First, he challenges the admission of
his drug test results. In his second and third issues, he challenges the legal and
factual sufficiency of the evidence to support the predicate grounds for
termination—endangerment and failure to comply with the court-ordered service
plan. Finally, Father argues in his fourth issue that the evidence is legally and
factually insufficient to support the best interest finding.
A. Standards of Review
In a proceeding to terminate the parent-child relationship under Texas
Family Code section 161.001, the petitioner must establish by clear and convincing
10
evidence one or more acts or omissions enumerated under subsection (1) of section
161.001(b) and that termination is in the best interest of the child under subsection
(2). See Tex. Fam. Code § 161.001; In re N.G., 577 S.W.3d 230, 232 (Tex. 2019)
(per curiam); In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Involuntary termination
of parental rights is a serious matter implicating fundamental constitutional rights.
See In re of J.F.-G., 627 S.W.3d 304, 310 (Tex. 2021); Holick v. Smith, 685
S.W.2d 18, 20 (Tex. 1985); In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Although parental rights are of constitutional
magnitude, they are not absolute. See In re A.C., 560 S.W.3d 624, 629 (Tex.
2018); In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
Due to the severity and permanency of terminating the parental relationship,
Texas requires clear and convincing evidence to support such an order. See Tex.
Fam. Code § 161.001; In re J.F.-G., 627 S.W.3d at 310; In re J.F.C., 96 S.W.3d
256, 265-66 (Tex. 2002). “Clear and convincing evidence” means “the measure or
degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.” Tex. Fam.
Code § 101.007; In re J.F.C., 96 S.W.3d at 264. This heightened burden of proof
results in a “correspondingly searching standard of appellate review.” In re A.C.,
560 S.W.3d at 630; see also In re C.M.C., 273 S.W.3d 862, 873 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
In reviewing the legal sufficiency of the evidence in a parental termination
case, we must consider all evidence in the light most favorable to the challenged
finding to determine whether a reasonable fact finder could have formed a firm
belief or conviction that the finding was true. See In re J.O.A., 283 S.W.3d 336,
344 (Tex. 2009). We assume that the fact finder resolved disputed facts in favor of
the finding if a reasonable fact finder could do so, and we disregard all evidence
11
that a reasonable fact finder could have disbelieved. See id.; In re G.M.G., 444
S.W.3d 46, 52 (Tex. App.—Houston [14th Dist.] 2014, no pet.). However, this
does not mean that we must disregard all evidence that does not support the
finding. In re D.R.A., 374 S.W.3d at 531. Because of the heightened standard, we
also must be mindful of any undisputed evidence contrary to the finding and
consider that evidence in our analysis. Id.
In reviewing the factual sufficiency of the evidence under the clear-and-
convincing standard, we consider and weigh disputed evidence contrary to the
finding against all the evidence favoring the finding. In re A.C., 560 S.W.3d at
631; In re J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed
evidence that a reasonable factfinder could not have credited in favor of the finding
is so significant that a factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” In re J.O.A., 283 S.W.3d at
345 (internal quotation omitted). We give due deference to the fact finder’s
findings, and we cannot substitute our own judgment for that of the fact finder. In
re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).
We review a trial court’s admission of evidence under the familiar abuse-of-
discretion standard. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (per curiam).
A trial court abuses its discretion when it acts arbitrarily or unreasonably or
without reference to guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79
S.W.3d 48, 52 (Tex. 2002) (per curiam).
B. Admission of Evidence
In his first issue, Father argues that the trial court abused its discretion in
admitting drug test results that lacked sufficient indicia of their reliability and
trustworthiness. At trial, Father objected to the admission of Exhibits 10 through
17, all of which were drug test results. We note that Exhibits 11 and 17 were drug
12
test results for Mother, not Father, and so Father’s complaint is moot as to those
exhibits. Exhibits 10 and 16 were results of tests performed by the National
Screening Center, and the remaining exhibits (12-15) were results of tests
performed by the Texas Alcohol and Drug Testing Service. The exhibits show
positive test results for one or more of cocaine, amphetamines, methamphetamine,
and marijuana, for the following time periods: November 2017; May 2018;
March, April, June, August, and December 2019; January, February, May, and
September 2020; January, May, and September 2021; and March and April 2022.
The exhibits also show negative results for the following time periods: March,
April, June, and July 2018; July and October 2019; June, July, August, October,
November, and December 2020; and June 2021.
The testing records were accompanied by a business records affidavit signed
by the custodian of records for each testing company. The affidavits generally
tracked the language of Texas Rule of Evidence 803(6), which sets out the
requirements for the hearsay exception for records of regularly conducted business
activity, and Rule 902(10), which sets out the requirements for authentication
purposes of an affidavit that accompanies business records. See Tex. R. Evid.
803(6), 902(10).
Because the test results were accompanied by affidavits that complied with
Rule of Evidence 902(10)(B), “the only question” regarding admissibility was
“whether the drug test result[s] showed sufficient indicia of trustworthiness” to
bring them within the business-records exception to the hearsay rule. F.C. v. Tex.
Dep’t of Fam. & Protective Servs., No. 03-19-00625-CV, 2020 WL 101998, at *6
(Tex. App.—Austin Jan. 9, 2020, no pet.) (mem. op.); see also Tex. R. Evid.
803(6)(E) (records of regularly conducted activity are not excluded by hearsay rule
if, among other criteria, the opponent fails to demonstrate that the source of
13
information or the method or circumstances of preparation indicate a lack of
trustworthiness).
The affiants averred, in similar language, that the drug tests followed
standard chain of custody procedures, were performed utilizing GC/MS (gas
chromatography/mass spectrometry) or LC/MS (liquid chromatography/mass
spectrometry) instruments, and were reviewed by a certified scientist or licensed
medical review officer. Each affidavit further provided that a record of the test
result was kept in the regular course of business of the National Screening Center
or Texas Alcohol and Drug Testing Service and that it was in the regular course of
business of those respective entities for an employee or representative with
knowledge of the act, event, condition, opinion, or diagnosis to record the
information at or reasonably near the time it occurred. The drug tests performed
by the Texas Alcohol and Drug Testing Service were each signed by a certified
medical review officer, an MD, verifying that the test was positive. All test result
documents identified the collection site, date, type of panel test used, and name of
the lab that performed the test. Each exhibit included one or more laboratory
reports indicating the quantitative test results and identifying the testing lab as
“DHHS Certified.” The tests performed by the Texas Alcohol and Drug Testing
Service included a “Forensic Drug Testing Custody and Control Form” that
accompanied the samples Father provided. We conclude that the trial court did not
abuse its discretion in determining that the drug test results and accompanying
affidavits showed sufficient indicia of trustworthiness. See F.C., 2020 WL
101998, at *6.
Father did not demonstrate that the challenged records lacked
trustworthiness. He argued that the results necessitated testimony from an expert,
but we have consistently rejected that argument. See In re Z.N.M., No. 14-17-
14
00650-CV, 2018 WL 358480, at *6 (Tex. App.—Houston [14th Dist.] Jan. 11,
2018, no pet.) (mem. op.) (rejecting the argument that an expert was necessary to
interpret drug testing results); In re B.F., No. 14-17-00421-CV, 2017 WL 5505821,
at *7 (Tex. App.—Houston [14th Dist.] Nov. 16, 2017, no pet.) (mem. op.) (same);
In re C.M.-L.G., No. 14-16-00921-CV, 2017 WL 1719133, at *10 (Tex. App.—
Houston [14th Dist.] May 2, 2017, pet. denied) (mem. op.) (same).
Father relies on In re K.C.P., in which the Texarkana Court of Appeals held
that drug test results were improperly admitted as exhibits under the business-
records exception in a termination case because they indicated a lack of
trustworthiness where the affidavit contained “no information as to the
qualifications of the person or the equipment used, the method of administering the
test, and whether the test was a standard one for the particular substance.” In re
K.C.P., 142 S.W.3d 574, 580 (Tex. App.—Texarkana 2004, no pet.).
Father does not cite any authority from this court where we agreed with and
followed the holding in In re K.C.P. Furthermore, In re K.C.P. is factually
distinguishable; as just discussed, the test results and accompanying affidavits here
showed sufficient indicia of trustworthiness because they contained information
regarding, among other things, the chain of custody, the testing procedures utilized,
and the qualifications of the analysts. See, e.g., In re E.B., No. 11-19-00001-CV,
2019 WL 3955974, at *3 (Tex. App.—Eastland Aug. 22, 2019, no pet.) (mem.
op.).
We conclude that the trial court did not abuse its discretion in determining
that the drug tests and accompanying affidavits in Exhibits 10 and 12 through 16
showed sufficient indicia of trustworthiness to be properly admitted as business
records. See F.C., 2020 WL 101998, at *6 (court did not abuse its discretion in
admitting test results accompanied by business-records affidavit).
15
Father separately challenges the admission of Exhibit 15 for the additional
reason that the Department did not serve Father with the exhibit at least fourteen
days before trial began on January 27, 2022, in violation of Rule 902. See Tex. R.
Evid. 902(10)(A) (“The proponent of a record must serve the record and the
accompanying affidavit on each other party to the case at least 14 days before
trial.”). Father’s challenge is without merit. As the Department points out, “[f]or
good cause shown, the court may order that a business record be treated as
presumptively authentic even if the proponent fails to comply with subparagraph
(A).” Tex. R. Evid. 902(10).
Exhibit 15 was the result of Father’s drug test performed on April 7, 2022.
The Department served it to Father’s counsel on April 28, 2022. Father objected to
admission of Exhibit 15 during the continued trial, on May 2, 2022. The
Department could not have served it more than fourteen days before trial began on
January 27, 2022, a fact the Department pointed out to the trial court in response to
Father’s objection: “And here, Judge, the good cause would be that [Father] was
ordered to test at the last hearing that we were in. We had -- trial has commenced
and the business record affidavit was filed with the Court as soon as it was
received.” We hold that the trial court did not abuse its discretion in admitting
Exhibit 15. See id.We overrule Father’s first issue.
B. Predicate Grounds
In his second and third issues, Father argues the evidence is legally and
factually insufficient to support termination under section 161.001(b)(1)(E) and
(O) predicate grounds on which the termination order is based.
16
1. Applicable law
To affirm a termination judgment on appeal, a court need uphold only one
termination ground—in addition to upholding a challenged best interest finding—
even if the trial court based the termination on more than one ground. In re N.G.,
577 S.W.3d at 232; In re L.M., 572 S.W.3d 823, 832 (Tex. App.—Houston [14th
Dist.] 2019, no pet.). Further, due to the significant collateral consequences of
terminating parental rights under section 161.001(b)(1)(D) or (E), “[a]llowing
section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the
parent has presented the issue to the court thus violates the parent’s due process
and due course of law rights.” In re N.G., 577 S.W.3d at 237. Thus, when as here
a parent challenges predicate termination grounds under subsection
161.001(b)(1)(E), we must address and detail our analysis under one of those
subsections. See id. We will address the trial court’s finding of endangerment
under subsection (E).
Termination of parental rights is warranted if the fact finder finds by clear
and convincing evidence, in addition to the best interest finding, that the parent has
“engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endangers the physical or emotional well-being of the child.” Tex.
Fam. Code § 161.001(b)(1)(E). “To endanger” means to expose a child to loss or
injury or to jeopardize a child’s emotional or physical health. See In re M.C., 917
S.W.2d 268, 269 (Tex. 1996). A finding of endangerment under subsection (E)
requires evidence that the endangerment was the result of the parent’s conduct,
including acts, omissions, or failures to act. In re S.R., 452 S.W.3d 351, 361 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied). Termination under subsection (E)
must be based on more than a single act or omission; the statute requires a
voluntary, deliberate, and conscious course of conduct by the parent. Id. Relevant
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evidence in determining whether a parent engaged in a course of endangering
conduct includes conduct that occurred before and after the child’s birth, in the
child’s presence and outside the child’s presence, and before and after removal by
the Department. See In re J.O.A., 283 S.W.3d at 345.
While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffer
injury; rather, the specific danger to the child’s well-being may be inferred from
the parent’s misconduct alone. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d
531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732, 738-39 (Tex. App.—Fort
Worth 2004, pet. denied). A parent’s conduct that subjects a child to a life of
uncertainty and instability endangers the child’s physical and emotional well-
being. In re F.E.N., 542 S.W.3d 752, 764 (Tex. App.—Houston [14th Dist.] 2018,
no pet.); In re A.L.H., 515 S.W.3d at 92. Evidence of criminal conduct,
convictions, imprisonment, and their effects on a parent’s life and ability to parent,
may establish an endangering course of conduct. See In re S.M., 389 S.W.3d 483,
492 (Tex. App.—El Paso 2012, no pet.); In re V.V., 349 S.W.3d 548, 554 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied). Routinely subjecting children to the
probability that they will be left alone because their parent is in jail endangers
children’s physical and emotional well-being. See Walker v. Tex. Dep’t of Fam. &
Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied).
2. Analysis
The record contains clear and convincing evidence that Father regularly
engaged in criminal activity, namely the routine abuse of illegal drugs. The
removal affidavit, which was admitted into evidence as part of an exhibit, detailed
his positive test results prior to Sam’s removal, as well as criminal possession
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charges. Father admitted to his drug use. Father continued to regularly use illegal
drugs after Sam was removed and throughout the pendency of this case, as shown
by his numerous positive drug test results. Thus, Father subjected Sam to an early
life of uncertainty and instability because Father could be jailed for drug-related
offenses. See In re L.G., No. 14-22-00335-CV, 2022 11572541, at *10 (Tex.
App.—Houston [14th Dist.] Oct. 20, 2022, no pet. h.) (mem. op.).
Further, the court reasonably could have believed that Father’s three-month
absence from Sam’s life, starting in December 2021 and continuing until March
2022, was due to a relapse of drug use. Although Father claimed he had COVID
during that entire period, the fact finder was not required to believe his excuse. See
In re H.R.M., 209 S.W.3d 105, 109 (Tex. 2006) (per curiam) (fact finder is the sole
arbiter when assessing the credibility and demeanor of witnesses). The trial court
could reasonably infer that Father’s absence was drug-related, especially since the
record shows that Father used drugs both immediately before and immediately
after the absence; he admitted to using drugs in December 2021 and tested positive
for cocaine in April 2022. Father missed five visits during his three-month
absence, and Townsend testified that Sam exhibited signs of aggression, outbursts,
and crying when Father disappeared. Father’s actions, including exposing Sam to
the possibility of being left alone, supports the finding that Father knowingly
placed Sam in conditions or surroundings that endangered his physical or
emotional well-being. See In re C.W.M.P., No. 14-20-00571-CV, 2021 WL
244865, at *7 (Tex. App.—Houston [14th Dist.] Jan. 26, 2021, pet. denied) (mem.
op.) (“Mother also missed approximately four or five visits with Charlie. This
evidence shows that Mother has not made a conscientious effort to maintain her
parental relationship with Charlie” and was properly considered in endangerment
analysis); In re A.R.M., 593 S.W.3d 358, 371-72 (Tex. App.—Dallas 2018, pet.
19
denied) (“missed visits with the child” relevant to an endangerment finding under
subsection (E)).
We have held that 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 the child,
may support a finding to a clear and convincing degree that the parent engaged in
conduct that endangered the child’s physical or emotional wellbeing. In re J.B.,
No. 14-20-00766-CV, 2021 WL 1683942, at *6 (Tex. App.—Houston [14th Dist.]
Apr. 29, 2021, pet. denied) (mem. op.). But we have also held that there must be a
causal connection between a parent’s drug use and any alleged endangerment. In
re L.C.L., 599 S.W.3d 79, 84 (Tex. App.—Houston [14th Dist.] 2020, pet. denied)
(en banc). Father relies on In re L.C.L. to argue that there was “no evidence in this
trial record” establishing such a causal connection between Father’s drug use and
Sam’s endangerment.
In re L.C.L. is distinguishable. In that case, the sole basis for termination
was that the mother “tested positive for drugs both initially and throughout the
proceedings.” Id. Here, there are more factors. Not only did Father repeatedly
test positive for illegal drugs, but the removal affidavit made clear that Father’s
drug use contributed to an unstable and dangerous living situation. The
Department found “Reason to Believe” that, prior to removal, Father used drugs
while caring for Sam and his siblings, who were “infested with fleas” and had skin
irritations. Townsend testified that, at the time the children came into the
Department’s care, Father’s house “was not up to par. There was drug
paraphernalia out.” The removal affidavit also referenced a history of domestic
violence in the home between Mother and Father. This evidence supports a
reasonable finding that Father had a long history of drug use and unstable living
conditions that endangered Sam and that Father would continue to engage in such
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behavior. See In re E.A.D., No. 14-22-00025-CV, 2022 WL 2663981, at *6-7
(Tex. App.—Houston [14th Dist.] July 11, 2022, no pet.) (mem. op.) (evidence
supported finding that mother had history of drug use, neglect, and unstable living
conditions that endangered the children and would continue to engage in such
behavior); In re A.W., No. 14-20-00492-CV, 2020 WL 7068131, at *7 (Tex.
App.—Houston [14th Dist.] Dec. 3, 2020, pet. denied) (mem. op.) (evidence of
mother’s family violence, absence from the children’s lives both before and after
removal, and inability to provide a stable home and appropriate care for the
children, including inability to care for the children due to her drug use and
untreated mental-health issues, would allow the fact finder to form a firm belief or
conviction that mother engaged in an endangering course of conduct).
Based on all the foregoing evidence, we conclude that a fact finder could
have formed a firm belief or conviction that its endangerment finding under
subsection (E) was true. In sum, considered in the light most favorable to the trial
court’s ruling, we conclude that the evidence is legally sufficient to support the
trial court’s determination that termination of Father’s parental rights to Sam was
justified under Family Code section 161.001(b)(1)(E). See In re E.A.D., 2022 WL
2663981, at *7. 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 was warranted under section
161.001(b)(1)(E). Accordingly, we conclude that the evidence is legally and
factually sufficient to support the subsection (E) finding.
Having concluded that the evidence is legally and factually sufficient to
support the trial court’s finding under subsection (E), we need not review the
sufficiency of the evidence to support the subsection (O) finding. We overrule
Father’s second issue and do not reach his third issue.
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C. Best Interest
In Father’s fourth issue, he challenges the legal and factual sufficiency of the
evidence to support the trial court’s best interest finding.
1. Applicable law
The best interest inquiry is child-centered and focuses on the child’s well-
being, safety, and development. In re A.C., 560 S.W.3d at 631. The trier of fact
may consider several factors to determine the child’s best interest, including:
(1) the desires of the child; (2) the present and future physical and emotional needs
of the child; (3) the present and future emotional and physical danger to the child;
(4) the parental abilities of the persons seeking custody; (5) the programs available
to assist those persons seeking custody in promoting the best interest of the child;
(6) the plans for the child by the individuals or agency seeking custody; (7) the
stability of the home or proposed placement; (8) acts or omissions of the parent
that may indicate the existing parent-child relationship is not appropriate; and
(9) any excuse for the parents’ acts or omissions. See Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976) (the “Holley factors”); In re E.R.W., 528 S.W.3d
251, 266 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Tex. Fam.
Code § 263.307(b) (listing factors to consider in evaluating parents’ willingness
and ability to provide the child with a safe environment).
Courts apply a strong presumption that the best interest of the child is served
by keeping the child with the child’s natural parents, and it is the Department’s
burden to rebut that presumption. In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement in a safe
environment also is presumed to be in the child’s best interest. Tex. Fam. Code
§ 263.307(a). A finding in support of “best interest” does not require proof of any
unique set of factors, nor does it limit proof to any specific factors. See Holley,
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544 S.W.2d at 371-72. Evidence that proves one or more statutory grounds for
termination may also constitute evidence illustrating that termination is in the
child’s best interest. In re C.H., 89 S.W.3d at 28. And a fact finder may measure a
parent’s future conduct by his past conduct in determining whether termination of
parental rights is in the child’s best interest. In re E.D., 419 S.W.3d 615, 620 (Tex.
App.—San Antonio 2013, pet. denied).
2. Application
We review the Holley factors in light of the evidence at trial. Regarding
Sam’s desires, Father testified that Sam told Father, “I don’t want to lose you.” On
the other hand, Sam’s foster mother testified that he told her he wanted to stay with
his foster family “forever” and that he envisioned a future with them. The foster
mother also testified that Sam was very bonded to his foster parents and foster
sibling, as well as to his own sister, Diane, whom the foster family also planned to
adopt. The foster mother expressed a willingness to continue sibling visits with
Brian, as well as visits with Father. The evidence established that the foster home
was a stable placement and Sam had adjusted to living there. Although there was
evidence that Sam and Father shared a close bond, on balance, Holley factors 1, 4,
and 7 weigh in favor of termination.
The evidence showed that Father had a long history of drug abuse. Father
testified that he sought help for his drug addiction with “varying degrees of
success.” The exhibits documenting Father’s drug tests show occasional negative
results. But even if Father was sober at various times during Sam’s life and the
pendency of this case, he also admitted to using drugs again in December 2021,
after which he disappeared from Sam’s life for three months and missed at least
five visits. Although he attributes this absence to a months-long COVID
diagnosis, the trial court could have disbelieved that excuse. See In re H.R.M., 209
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S.W.3d at 109. Father’s absence caused Sam emotional distress and confusion.
The evidence of Father’s extensive drug abuse, which is relevant to Holley factors
2, 3, and 8, weighs in favor of the trial court’s finding.
Father successfully obtained appropriate housing and was employed at the
time of trial. He testified that he was never ordered to pay child support, but that
he bought the children clothes and presents. All witnesses agreed that Father loved
and was bonded to Sam. And Father had successfully completed and later re-
enrolled in a drug counseling program in an effort to curb his drug addiction.
Thus, the evidence showed that Father was willing to make positive changes in his
own life and his environment. However, Father had not maintained sobriety for a
significant time, which was in violation of his family service plan, and did not have
a support system to assist him with raising Sam. On balance, the evidence, which
is relevant to Holley factors 4, 5, and 6, weighs in favor the trial court’s finding.
We conclude that there is legally and factually sufficient evidence to support
the trial court’s finding that termination was in Sam’s best interest. Although
Father expressed love for his son and claimed he could provide a stable home
appropriate for Sam, the Department’s caseworker testified that Father’s
“continued drug use will inhibit his parenting.” Based on Father’s inability to
achieve and maintain sobriety, the trial court reasonably could have found that
Father’s parental abilities weighed in favor of finding termination was in Sam’s
best interest. See In re S.R., 452 S.W.3d 351, 368 (Tex. App.—Houston [14th
Dist.] 2014, pet. denied).
Viewing the evidence in the light most favorable to the judgment for our
legal-sufficiency analysis and all of the evidence equally for our factual-
sufficiency analysis, we conclude that a reasonable fact finder could have formed a
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firm belief or conviction that termination of Father’s parental rights was in Sam’s
best interest. See Tex. Fam. Code § 161.001(b)(2).
Conclusion
Having overruled all dispositive issues in this appeal, we affirm the trial
court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
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