in the Interest of M.J., a Child v. Texas Department of Family and Protective Services ( 2020 )

Affirmed and Memorandum Opinion filed December 1, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00449-CV
IN THE INTEREST OF M.J., A CHILD
On Appeal from the 12th District Court
Grimes County, Texas
Trial Court Cause No. 34836-CCL
MEMORANDUM OPINION
The trial court terminated a mother’s parental rights to M.J. on several
predicate grounds, including endangering conduct and endangering conditions or
surroundings, as well as because the mother has a mental or emotional illness or
mental deficiency rendering her unable to care for her child. The court also found
that termination was in the child’s best interest. On appeal, the mother challenges
the legal and factual sufficiency of all predicate grounds, but she does not contest
the court’s best interest finding. Because we conclude that legally and factually
sufficient evidence supports the district court’s finding of endangering conduct, we
affirm the judgment.
Background
A. Pretrial Proceedings
1. The initial referral and investigation
M.J., a baby boy, was born on June 4, 2019. Shortly after M.J.’s birth, the
Department of Family and Protective Services (the “Department”) received a
referral, which alleged that appellant, M.J.’s mother (“Mother”), tested positive for
phencyclidine (“PCP”), tetrahydrocannabinol (“THC”), and amphetamines based
on a drug screen performed six days before M.J.’s birth. The referral stated that
Mother admitted to hospital staff that she had used drugs while pregnant.
According to a urinalysis taken at M.J.’s birth, he did not have drugs in his system,
although a later meconium test showed that M.J. tested positive for marijuana.
M.J. was admitted to the neonatal intensive care unit following his birth.
The Department’s investigator, Emma Clark, visited M.J. and Mother in the
hospital. A nurse told Clark that the hospital placed Mother under a twenty-four-
hour watch due to her erratic behavior, including an attempt to pull the umbilical
cord clamp from M.J. contrary to instructions from medical personnel. The nurse
also told Clark that Mother spent a week in a psychiatric care facility prior to being
admitted to the hospital to give birth.
Mother admitted to Clark “continual drug use,” including the use of
methamphetamines to self-treat, Mother said, the pain of her pregnancy. During
Clark’s interview, Mother seemed erratic, could not answer questions clearly, and
was not concerned about how drugs could affect M.J.
When Clark asked about Mother’s plans to care for M.J. after discharge,
Mother stated that she did not have any plans. Clark asked Mother if she had any
relatives or friends willing to care for M.J., and Mother named a friend but was
2
unable to provide any other information regarding the friend. Mother also stated
that M.J.’s maternal grandmother possibly could care for M.J. According to
Mother, the maternal grandmother had custody of two of Mother’s three other
children. Despite several attempts, Clark was unable to contact the maternal
grandmother before the hospital notified Clark that Mother and M.J. were ready to
be discharged. Clark eventually made contact with the maternal grandmother, who
initially stated that she would be willing to care for M.J. but then later changed her
mind.
2. Mother’s history with the Department
Mother had several interactions with the Department prior to M.J.’s birth
and the events of this case. These included: (1) an investigation for physical abuse
by Mother against her eldest child, a daughter, resulting in a “Reason to Believe”
determination by the Department; (2) an investigation for neglectful supervision by
Mother regarding her first-born, during which the Department learned that Mother
tested positive for marijuana at a pre-natal doctor’s appointment and that Mother
had a mental health history of anxiety, mood disorder, and schizo-affective
disorder; and (3) an investigation for neglectful supervision by Mother regarding
her daughter and her second-born son, resulting in findings that Mother and the
newborn son tested positive for marijuana. As referenced above, the maternal
grandmother took custody of Mother’s two sons prior to M.J.’s birth.
The Department was notified that Mother engaged in other troubling
behavior during her pregnancy with M.J. Approximately three and one half
months before M.J.’s birth, the Department received a referral alleging that Mother
tested positive for THC, PCP, and amphetamines and that Mother initially denied
knowing that she was pregnant when she ingested these drugs but later
acknowledged that she knew she was pregnant. The Department closed with
3
referral without investigation. Approximately one month before M.J.’s birth, the
Department received a referral, alleging that Mother was at a hospital and believed
she was in labor. Mother tested positive for THC, PCP, methamphetamines, and
amphetamines. Mother stated to hospital staff that “she want[ed] to cut the baby
out.” Mental Health and Mental Retardation (“MHMR”) was called for an
evaluation, and the Department closed the referral without investigation.
Approximately one week before M.J.’s birth, the Department received two separate
referrals. The first referral stated that law enforcement responded to a call
regarding Mother having a “psychotic episode” in a fast-food restaurant, during
which she appeared to be “coming off methamphetamines” and talking to people
who were not there. The second referral alleged that Mother had tested positive for
THC, PCP, and amphetamines and admitted to using methamphetamine the day
prior. The Department closed both referrals without investigation.
3. The removal
Clark stated in an affidavit that she believed there was an immediate and
continuing danger to the physical health or safety of the child, due to Mother’s
habitual use of PCP, THC, and amphetamines. Specifically, Mother’s admission
of methamphetamine use while pregnant with M.J., the fact that Mother had
previously given birth to a child who tested positive for drugs, and Mother’s
significant mental health issues and erratic behavior all demonstrated an
unwillingness or inability on Mother’s part to become a safe caregiver for M.J.
Three days after M.J.’s birth, the Department sought and received an emergency
order naming the Department temporary sole managing conservator of M.J. and
thereafter placed M.J. in a foster home, where M.J. stayed through termination
trial. The Department also sought an order terminating Mother’s parental rights to
4
M.J. and appointing the Department sole managing conservator, necessitating a
bench trial on the merits.
B. Trial
The Department’s first witness was Clark. Clark testified to the above-
described facts prompting the Department’s initial referral and investigation,
beginning with the report that a child, M.J., had been “born drug exposed.” Near
the time of the birth, Mother tested positive for a variety of drugs.
Clark interviewed Mother at the hospital, and she admitted “to countless
times before over the years of abusing Methamphetamines as well as throughout
her pregnancy.” During Clark’s interview, Mother received a phone call. Mother
told the caller “to bring some sweets with her and that they could exchange it in the
parking lot if they had to.” Clark suspected that Mother was referring to drugs.
Members of the hospital staff told Clark that Mother attempted to remove a
clamp from M.J.’s umbilical cord despite contrary instructions. Clark also learned
that Mother was admitted to a psychiatric hospital prior to giving birth. Clark
found Mother to be erratic and incoherent.
When asked of her plans with M.J. after discharge, Mother “didn’t have any
plans.” Clark testified that Mother “didn’t have clothes or a car seat or any
necessities with her whenever she gave birth either. . . . She didn’t have stable
housing at the time.”
Clark was aware that Mother already had three children removed from her
care. Clark spoke to the children’s maternal grandmother, who had custody of
Mother’s two sons. The maternal grandmother expressed an unwillingness to
serve as a placement for M.J. and stated her belief that M.J. “would be better in
foster care.”
5
The Department placed M.J. in a foster home, where he “was thriving,” and
offered Mother visitations with her son. Clark recounted two visitations that
caused her concern. During the first, Mother initially interacted well with M.J.,
but, after being in the restroom for a long time, started exhibiting different
behavior. Clark decided to do an instant drug test, and Mother tested positive for
methamphetamine. Clark cut a second visitation short, after Mother exhibited
nervous tics, “pushed an imaginary man out of the room[,] . . . and started cussing
at people.”
Adrianna Ruiz, an MHMR caseworker, testified regarding Mother’s mental
health. Ruiz stated that Mother had been “in and out of” MHMR’s system for the
preceding eight years. According to Ruiz, Mother was diagnosed with a
schizophrenia disorder several years ago. A month prior to giving birth to M.J.,
Mother was diagnosed with “other specified psychosis,” as well as “cocaine use
disorder” and “meth use disorder.” Ruiz stated that Mother “does have a lot of
crisis episodes and she does seem to have a lot of in-patient hospitalizations which
usually when you do have those it’s because you’re unstable, you know. You
could be a harm to yourself or others.”
M.J.’s maternal grandmother confirmed that Mother was diagnosed with
schizophrenia approximately eight years before M.J.’s birth. The maternal
grandmother also stated that Mother does not get “as much as she needs to” in
terms of psychiatric care and that, while Mother has been prescribed medication,
she does not always take it. The maternal grandmother acknowledged Mother’s
history of drug use. When asked if she had concerns about Mother’s ability to care
for a baby given the drug use, the maternal grandmother responded, “[Mother]
can’t do it.” Speaking of Mother’s two sons, the maternal grandmother testified
6
that she has never thought Mother would be able to care for them and that Mother
does not have the ability to take care of herself on a daily basis.1
Grimes County Sheriff’s Department Sergeant Jim Adkins testified to
Mother’s criminal history. According to the department’s records, Mother was
arrested twenty-seven times since 2010, including seven times in the year
preceding trial. The charges included criminal trespass, criminal mischief,
indecent exposure, possession of controlled substance, and assault. During the
year before trial, Mother had spent 176 days in county jail.
Kimberly Kawuki, a caseworker with the Department (alternatively referred
to during trial as “CPS”), testified regarding a family service plan that was
developed for Mother approximately three months after M.J.’s birth. According to
Kawuki, the plan required Mother: to maintain a safe and stable home
environment; to allow CPS to do unannounced home visits and notify CPS of
address changes; to contact the CPS caseworker at least twice monthly and notify
CPS of any contact changes so that CPS could contact Mother; to complete a drug
and alcohol assessment and follow the recommendations; to submit to random drug
tests by CPS; and to undergo a psychological and/or psychiatric evaluation and
follow the recommendations. Kawuki visited Mother once while Mother was in
county jail and spoke to Mother three times. In those conversations Kawuki
explained to Mother the service plan requirements. However, Kawuki also
testified that she did not believe she was able to obtain Mother’s signature on the
plan and was “not 100 percent” sure that Mother was provided a copy of the plan.
1
The maternal grandmother also explained that Mother’s eldest child lives with the
child’s aunt and that, while Mother retains her parental rights to the child, the aunt does not
allow Mother to know where the child lives.
7
To Kawuki’s knowledge, Mother did not perform any of the services included
within the plan.2
Kawuki testified that: Mother did not offer financial support for M.J. during
the pendency of this case; Mother did not regularly visit or maintain contact with
M.J.; Mother demonstrated an inability to provide the child with a safe
environment; M.J. had been in the managing conservatorship of the Department for
no less than six months during the pendency of this case; and Mother failed to
complete a court-ordered substance abuse treatment program. Kawuki believed
that Mother endangered the child during pregnancy by using drugs, that Mother
suffers from a mental or emotional illness or mental deficiency, and that Mother’s
illness or mental deficiency makes her unable to provide for the physical,
emotional, and mental needs of M.J. and will continue to render Mother unable to
provide for the child’s needs until M.J.’s eighteenth birthday.
Kawuki explained that M.J. was placed with distant relatives, who were
providing for all of his needs. Kawuki advocated in favor of the court terminating
Mother’s parental rights and in favor of M.J.’s kinship caregivers adopting him.
Kawuki did not have any concerns about the placement’s ability to continue to care
for M.J. regardless whether adoption occurred. Another witness, the CASA
volunteer, testified similarly that M.J. was thriving in his placement and had
bonded with his foster parents. One of M.J.’s foster parents testified that he was
doing well in their care and that they wished to adopt M.J. if Mother’s parental
rights were terminated. The foster parents had recently adopted another child, a
2
Another witness, a volunteer with Court Appointed Special Advocates (“CASA”),
testified similarly that Mother said that she was not interested in completing anything on the
service plan, that she was interested in going to some parenting classes, but she had no interest in
anything else on the plan.
8
son, and M.J. had bonded with his foster sibling: “they are very loving and it’s --
it’s a great relationship.”
At the conclusion of the trial, the court found clear and convincing evidence
that Mother: knowingly placed or knowingly allowed M.J. to remain in conditions
and surroundings that endangered the child; engaged in conduct or knowingly
placed the child with persons who engaged in conduct and endangered his physical
or emotional well-being; constructively abandoned M.J., who had been in the
temporary managing conservatorship of the Department for more than six months;
and did not comply with the provisions of the court-ordered service plan. See Tex.
Fam. Code § 161.001(b)(1)(D), (E), (N), (O). The trial court also found that
Mother has a mental illness or mental deficiency that renders her unable to provide
for the physical, emotional, and mental needs of the child and such illness would
continue at least until M.J. was eighteen years old. See id. § 161.003. The court
further found that termination of Mother’s rights was in M.J.’s best interest and
that the Department should be appointed temporary managing conservator. See id.
§ 161.001(b)(2). Based on these findings, the court signed a final order
terminating Mother’s parental rights to M.J.
Mother appeals, challenging the legal and factual sufficiency of the evidence
to support each of the predicate findings. She does not challenge the trial court’s
finding that termination is in M.J.’s best interest. Because we conclude the
termination order is supported under at least one predicate ground in section
161.001, we need not address the trial court’s finding that termination was also
warranted under section 161.003.
9
Analysis
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
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). 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.
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. 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.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 legal sufficiency of the evidence in a parental termination case,
we must consider all evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. In re J.O.A., 283 S.W.3d 336, 344 (Tex.
10
2009). We assume that the fact finder resolved disputed facts in favor of its
finding if a reasonable fact finder could do so, and we disregard all evidence that a
reasonable fact finder could have disbelieved. Id.; In re G.M.G., 444 S.W.3d 46,
52 (Tex. App.—Houston [14th Dist.] 2014, no pet.). However, this 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 fact finder could not have credited in favor of the
finding is so significant that a fact finder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” In re J.O.A., 283
S.W.3d at 345. 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).
B. Law Applicable to Endangerment as a Predicate Ground
In her first issue, Mother argues the evidence is legally and factually
insufficient to support termination under all section 161.001(b)(1) predicate
grounds. 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
11
consequences of terminating parental rights under section 161.001(b)(1)(D) or
(E),3 “[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 either
subsection 161.001(b)(1)(D) or (E), or both of those subsections, 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. A court
properly may consider actions and inactions occurring both before and after a
3
Section 161.001(b)(1)(M) provides that parental rights may be terminated if clear and
convincing evidence supports that the parent “had his or her parent-child relationship terminated
with respect to another child based on a finding that the parent’s conduct was in violation of
Paragraph (D) or (E) or substantially equivalent provisions of the law of another state.” Tex.
Fam. Code § 161.001(b)(1)(M). Thus, when parental rights have been terminated for
endangerment under either section 161.001(b)(1)(D) or (E), that ground becomes a basis to
terminate that parent’s rights to other children.
12
child’s birth to establish a course of conduct. In re A.L.H., 515 S.W.3d 60, 91
(Tex. App.—Houston [14th Dist.] 2017, pet. denied).
Evidence of criminal conduct, convictions, imprisonment, and their effects
on a parent’s life and ability to parent, may establish an endangering course of
conduct. In re S.R., 452 S.W.3d at 360-61; 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 In re L.M., 572 S.W.3d at 834
& n.4. Imprisonment alone is not an endangering course of conduct but is a fact
properly considered on the endangerment issue. Tex. Dep’t of Human Servs. v.
Boyd, 727 S.W.2d 531, 533-34 (Tex. 1987). As well, 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.
Drug abuse is merely one form of criminal conduct that may jeopardize a
child’s physical or emotional health and thus constitute endangering conduct. For
example, a mother’s drug abuse during pregnancy is particularly endangering to an
unborn child’s physical well-being. See, e.g., In re A.R.G., No. 14-18-00952-CV,
2019 WL 1716262, at *8 (Tex. App.—Houston [14th Dist.] Apr. 18, 2019, no pet.)
(mem. op.) (mother’s use of illegal drug during pregnancy was evidence of
endangering conduct because it exposed the child to possible injury or health
risks); In re J.E., No. 14-16-00850-CV, 2017 WL 1274081, at *5 (Tex. App.—
Houston [14th Dist.] Apr. 4, 2017, pet. denied) (mem. op.) (“A mother’s use of
drugs during pregnancy may amount to conduct that endangers the physical and
emotional well-being of the child.”).
13
Moreover, a parent’s drug abuse after a child is born may be an endangering
course of conduct under subsection (E) because it can negatively impact the user’s
ability to parent in multiple ways, not only by exposing the child to the possibility
that the parent may be imprisoned but also because drugs can physically impair a
mother’s or father’s capacity to parent. See Walker v. Tex. Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied); see also In re J.J.W., No. 14-18-00985-CV, 2019 WL 1827591, at *6
(Tex. App.—Houston [14th Dist.] Apr. 25, 2019, pet. denied) (mem. op.) (“Drug
abuse and its effect on the ability to parent can present an endangering course of
conduct.”).
C. Application
There is much evidence establishing Mother’s repeated and admitted drug
abuse. Mother has been diagnosed with “cocaine use disorder” and “meth use
disorder.” The Department presented uncontroverted evidence that, consistent
with these diagnoses, Mother used drugs such as PCP, THC, amphetamines, and
methamphetamine during her pregnancy with M.J. Drug abuse during pregnancy
is an endangering course of conduct, see In re A.R.G., 2019 WL 1716262, at *8; In
re J.E., 2017 WL 1274081, at *5, which in fact harmed M.J. because he tested
positive for an illegal substance at birth. Clark testified that Mother did not seem
concerned about the potential effect of drugs on M.J.
Mother’s drug abuse continued after M.J.’s birth. She tested positive for
methamphetamine at least once during a scheduled visitation with M.J. after his
removal from her care. According to the record, a fact finder reasonably could
have inferred from Clark’s testimony that Mother actually ingested
methamphetamines during her visit with M.J. Mother knows that she has been
diagnosed with a schizophrenia disorder, and the maternal grandmother said
14
Mother “does not always take her medication.” Witnesses described instances
when Mother has attempted to speak to, or physically interact with, people who do
not exist. A mentally ill person with a history of inadequately self-medicating and
who abuses drugs in the presence of a child jeopardizes the child’s physical and
emotional well-being. See In re J.M.R, Jr., No. 14-17-00219-CV, 2017 WL
3567919, at *7 (Tex. App.—Houston [14th Dist.] Aug. 17, 2017, pet. denied)
(mem. op.) (“The evidence of Mother’s drug use, untreated mental illness, and
criminal activity amply supports the trial court’s unchallenged finding of
endangerment under subsection E.”); In re A.S., No. 12-16-00104-CV, 2016 WL
5827941, at *6 (Tex. App.—Tyler Sept. 30, 2016, no pet.) (mem. op.) (evidence of
mother’s mental health issues, extensive Department history, inappropriate mental
health behavior, criminal history, and illegal drug abuse supported finding of
endangerment under subsection (E)).
Finally, Mother’s drug use coupled with other proven criminal convictions
and incarcerations subjected M.J. to a probability of being left alone because
Mother is in jail, also endangering the child’s physical and emotional well-being.
Between the date the Department intervened in this case and the date of
judgment—just under a full year—Mother was incarcerated for approximately half
of that time. The clear and convincing evidence of Mother’s criminal conduct and
subsequent jail time, and the collective negative effect on her ability to parent M.J.,
establishes an endangering course of conduct. See In re A.A.C., No. 14-19-00560-
CV, 2019 WL 6913327, at *7 (Tex. App.—Houston [14th Dist.] Dec. 19, 2019, no
pet.) (mem. op.).
The fact finder could have formed a firm belief or conviction that its
endangerment finding under subsection (E) was true. In re J.O.A., 283 S.W.3d at
344; see also In re C.A.L.H., No. 14-16-00899-CV, 2017 WL 830495, at *5 (Tex.
15
App.—Houston [14th Dist.] Feb. 28, 2017, pet. denied) (mem. op.) (“Given the
undisputed evidence of Mother’s persistent use of illegal drugs during pregnancy
and afterwards, and then again during the pendency of this suit when her parental
rights were at stake, the trial court had sufficient support for its finding that Mother
engaged in a course of conduct that endangered the Child’s physical and emotional
well-being under [subsection (E)].”).
A majority of this court sitting en banc recently held that “a parent’s drug
use alone, without proof of any causal connection to endangering their children’s
welfare,” is not enough to justify terminating a parent-child relationship. In re
L.C.L., 599 S.W.3d 79, 86 (Tex. App.—Houston [14th Dist.] 2020, pet. filed) (en
banc). L.C.L. does not suggest that reversal is warranted here because we are not
relying on Mother’s drug use alone to affirm the trial court’s endangerment
finding, and because the record contains ample evidence of (1) Mother’s drug use
during her pregnancy with M.J., which caused M.J. to test positively for an illegal
substance at birth,4 and (2) Mother’s numerous criminal convictions and
incarcerations resulting from both drug-related and non-drug-related offenses. In
L.C.L., the court’s en banc majority noted the absence of evidence of criminal
charges related to the parent’s drug use or “proof of threat of incarceration due to
alleged drug use.” Id. at 84-85. Here, both exist. Mother’s drug use before and
after pregnancy, combined with her substantial criminal history, leads us to
conclude that sufficient evidence supports the court’s finding under subsection (E).
Considered in the light most favorable to the trial court’s finding, the
evidence is legally sufficient to support the trial court’s determination that
termination of Mother’s parental rights to M.J. was justified under Family Code
4
In L.C.L., there was no evidence that the parent’s drug use in that case occurred while
the parent was pregnant.
16
section 161.001(b)(1)(E). Further, in view of the entire record, we conclude the
disputed evidence is not so significant as to prevent the trial court from forming a
firm belief or conviction that termination was warranted under section
161.001(b)(1)(E). Accordingly, we conclude the evidence is legally and factually
sufficient to support the subsection (E) finding.
Having concluded the evidence is legally and factually sufficient to support
the trial court’s finding under subsection (E), we need not review the sufficiency of
the evidence to support the subsections (D), (N), or (O) findings. See In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003).
Mother does not challenge the trial court’s finding that termination was in
M.J.’s best interest, so we need not address that finding. See id.; In re J.N.G., No.
14-15-00389-CV, 2015 WL 5634366, at *8 (Tex. App.—Houston [14th Dist.]
Sept. 24, 2015, no pet.) (mem. op.). We overrule Mother’s first issue.5
Conclusion
We affirm the trial court’s judgment.
/s/ Kevin Jewell
Justice
Panel consists of Justices Christopher, Jewell, and Zimmerer.
5
Because of our disposition of Mother’s first issue, we need not reach her second issue,
in which she contends that the evidence is legally and factually insufficient to establish the
elements of Family Code section 161.003, an independent basis for termination. See Tex. Fam.
Code § 161.003(a)(1-5); C.W. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-17-00890-CV,
2018 WL 2709208, at *9 & n.4 (Tex. App.—Austin June 6, 2018, no pet.) (mem. op) (declining
to review sufficiency of evidence supporting termination under section 161.003, because other
predicate ground supported trial court’s ruling) (citing In re A.V., 113 S.W.3d at 362).
17