in the Interest of A.N. and J.N., Jr., Children

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00206-CV

IN THE INTEREST OF A.N. AND
J.N., JR., CHILDREN

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-98825J-13

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MEMORANDUM OPINION1

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I. INTRODUCTION

This is an ultra-accelerated appeal2 in which Appellants Father and Mother

appeal the termination of their parental rights to their children Amy and Jack.3 In

1
See Tex. R. App. P. 47.4.
2
See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of
appeal from a judgment terminating parental rights, so far as reasonably
possible, within 180 days after notice of appeal is filed).
3
See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to
minors in an appeal from a judgment terminating parental rights).
three issues, Father argues that the evidence is legally and factually insufficient

to support the endangering-environment, endangering-conduct, and best-interest

findings under Texas Family Code section 161.001(1)(D) and (E) and section

161.001(2). See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2) (West 2014). In

three issues, Mother argues that the evidence is legally and factually insufficient

to support the endangering-environment and endangering-conduct findings under

Texas Family Code section 161.001(1)(D) and (E) and that the evidence is

factually insufficient to support the best-interest finding under section 161.001(2).

See id. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Overview

The record reveals that the Department of Family and Protective Services

(the Department) has been involved in Father’s and Mother’s lives since shortly

after the birth of their daughter Amy in February 2011. The record reveals

numerous referrals for neglectful supervision and physical neglect of the children

by Father and Mother, for alleged drug use by Father and Mother, and for alleged

drug use by the extended family members with whom Father and Mother allowed

the children to stay. The record also reveals that Father and Mother failed to

establish stable housing throughout this case and that they failed to complete

their services. Because Father and Mother challenge both the sufficiency of the

evidence to support the endangerment grounds as well as the best-interest

ground, we set forth a detailed summary of the record below.
 B. Prior CPS History

The affidavit attached to the “Petition for Protection of Children, for

Conservatorship, and for Termination in Suit Affecting the Parent-Children

Relationship” (the affidavit), along with some of the testimony at the termination

trial, sets forth Father’s and Mother’s prior CPS history.

1. February 7, 2011

On February 7, 2011, the Department received a referral for neglectful

supervision of Amy by Father and Mother. The allegations included the

following: Mother tested positive for opiates when she gave birth to Amy but

produced a prescription for Vicodin; Mother admitted smoking marijuana while

she was pregnant; Father appeared under the influence of drugs while at the

hospital; Father tested positive for opiates but produced a prescription for

Vicodin; Father admitted to smoking marijuana; Maternal Grandmother and

Paternal Grandmother admitted to using drugs in the past; Maternal

Grandmother tested positive for methamphetamine and amphetamine; and

Paternal Grandmother’s drug test was invalid. The affidavit states that the

allegations regarding Father’s and Mother’s drug use were validated because

Father and Mother left Amy in the care of Maternal Grandmother and Paternal

Grandmother while Father and Mother left to smoke marijuana. The Department

opened a Family-Based Safety Services (FBSS) case and provided services

from April 2011 to December 2011, but Father and Mother did not complete

services with FBSS.
 2. June 11, 2011

On June 11, 2011, the Department received a referral for neglectful

supervision of Amy by Father and Mother and for physical abuse of Amy by

Father.4 The referral alleged that Father and Mother were stealing Paternal

Grandmother’s pain medications, antidepressants, and muscle relaxers and that

they were using K2. The referral further alleged that Father had thrown Paternal

Grandmother on the bed and had broken things because he had run out of

Paternal Grandmother’s pills. The referral also alleged that Father and Mother

were using Paternal Grandmother for her money and that she could not meet her

own needs as a result. An Adult Protective Services (APS) case was opened for

Paternal Grandmother, who was living at the Cowboy Inn. The APS caseworker

noted that Paternal Grandmother, Father, and Mother did not seem credible, and

she was concerned about their drug-seeking behavior. Father and Mother tested

negative for drugs. The family agreed to not abuse medication and to continue to

work services with FBSS. Both allegations—for neglectful supervision of Amy by

Father and Mother and for physical abuse of Amy by Father—were ruled out, and

the services with FBSS were not completed because the Department could not

locate the family.

4
The record does not specify what the alleged physical abuse consisted of.
 3. September 2011

The September 2011 referral alleged that Father, Mother, Amy, and

Paternal Grandmother were staying at the Cowboy Inn and that all three adults

were smoking K2 in front of Amy.5 There were also allegations that the adults

were using drugs intravenously and were using prescription medications. The

Department was concerned because there was no way the adults could take

care of seven-month-old Amy’s needs while they were under the influence. 6

Escajeda testified that she made contact with Father and Mother at the motel.

Escajeda had some concerns about the motel room, but the family was in the

process of packing and leaving the room because the police had done a welfare

check the night before and had told them that it was a dangerous place for them

to be with a child. The parents did not tell Escajeda where they were relocating,

which concerned Escajeda because a case had been opened for services from

FBSS and the Department needed to be able to locate the family to offer them

the services from FBSS and to check on Amy’s welfare.

While at the motel, both parents agreed to do an oral swab drug test.

Father and Mother tested positive for opiates but produced a prescription to

explain their positive drug tests. Father and Mother denied using any drugs,

5
Gina Escajeda, a current caseworker and former investigator with CPS,
testified that K2 was a legal drug in 2011.
6
Escajeda testified that “any time anybody’s intoxicated from any
substance, they’re not able to provide adequate care for their children.”
including synthetic marijuana, and said that drugs were not a problem for them.

Escajeda testified that she was very concerned about Paternal Grandmother,

who appeared to be under the influence and was not able to give a drug test.

Escajeda testified that there were also concerns that Paternal Grandmother was

in an abusive relationship.

The safety plan stated that Paternal Grandmother could not be a caregiver

for Amy and could not be left unsupervised with Amy, that the family would

maintain contact with CPS and let CPS know their address, and that the family

should contact the police if Paternal Grandmother’s allegedly abusive husband

had contact with them or was trying to contact them. Escajeda testified that

Father and Mother said that they were afraid to call their FBSS caseworker

because they did not have a place to stay and that they could not attend classes

because they did not have transportation.

4. December 6, 2011

On December 6, 2011, the Department received a referral for neglectful

supervision of Amy by Mother, Paternal Grandmother, and Father. The referral

alleged that Father, Mother, and Paternal Grandmother were living in a motel and

were all using drugs and that Father and Mother were smoking K2, “ICE,” and

opiates in front of Amy. The Department was unable to locate the family, and the

case was not able to be completed.
 5. December 22, 2011

Keriann Wellinghof, an investigator with CPS, testified that she had a case

involving Father and Mother on December 22, 2011. The referral alleged that

Father, Mother, and Paternal Grandmother were living in a motel together and

that they were using drugs, including K2, methamphetamine, Soma,

hydrocodone, and Klonopin. A night-response worker attempted to contact the

family on December 22 and 23, and Wellinghof’s supervisor contacted Father by

phone on December 23. Wellinghof called Mother on December 27 and 28 and

attempted a visit on December 30 at their last known address but was unable to

make contact with the family. Wellinghof testified that when CPS is unable to

locate a family, CPS is unable to verify that the children are safe. Wellinghof

said, “We don’t know what’s going on, what household they’re living in, what

they’re exposed to when we can’t meet with them face-to-face.” Wellinghof

verified that Amy was current on her shots, ruled out the allegations, and closed

the case.

6. January 2012

In January 2012, the Department re-entered the December 6, 2011 case

due to the unable-to-complete disposition. The affidavit states that the family

made contact with the worker at a CPS office and reported that Paternal

Grandmother is a heavy IV drug user and “shoots up” drugs with her husband.

Father and Mother believed that Paternal Grandmother and her husband had

called in the December 6 referral in retaliation for Father and Mother’s turning in
Paternal Grandmother for food stamp fraud. The Department was unable to

locate the family after this conversation.

7. July 2012

In July 2012, the Department received a referral for neglectful supervision

of Amy by Father and Mother. The referral alleged that Father was using

synthetic marijuana, which could impair his judgment and his ability to adequately

care for Amy. The referral stated that it was unknown how Amy had been

affected by Father’s use of synthetic marijuana and that it was unknown whether

Mother was willing to protect or capable of protecting Amy. The referral stated

that the police found Father in possession of K2 and rolling papers and that

Mother was pregnant and smoking cigarettes. The Department attempted to

locate the family, but they had left the Union Gospel Mission where they had

tested negative on an oral drug screen in May 2012. A special investigator was

assigned to the case to assist in locating the family, but the family was not

located. The allegations were ruled “unable to complete.”

8. April 5, 2013

Nine months later on April 5, 2013,7 the Department received a referral for

neglectful supervision and physical neglect of Amy and Jack by Father and

Mother. The referral alleged that the family had been living out of a van parked

7
Mother gave birth to Jack on September 1, 2012.
in a car wash next to a convenience store.8 The referral further alleged that

Father and Mother were using drugs and that Father was heard yelling at Amy. It

was noted that the children’s demeanor appeared sickly. Escajeda attempted to

find the family but was unable to do so. Escajeda utilized a special investigator

with CPS, who located the family on April 15 and left his business card with

them.

9. April 16, 2013

On April 16, 2013, the Department received a second intake that the family

was living out of a vehicle and had been living like that for a couple of weeks.

On April 18, Escajeda made contact with the family at the same residence

where the special investigator had found them, which was a residence belonging

to a friend of the family. Escajeda told Father and Mother that their

homelessness was a concern and asked if they would consider FBSS.9

Escajeda told Father and Mother that they could not stay in their car that evening

because it was going to be really cold that night, and their friend allowed them to

stay that night. Father and Mother signed the safety plan stating that they would

seek homeless shelter assistance, that the children would not sleep outdoors that

evening, and that they would continue to meet the children’s basic needs and

8
Escajeda testified that nothing had changed from September 2011 to April
2013; the family was still struggling and lacked stability.
9
Escajeda agreed that it is not against the law to be homeless or to live in
hotels.
cooperate with CPS. Father and Mother failed to maintain contact with CPS.

The Department offered the family services through FBSS, but the family did not

cooperate with the assessment.

10. May 1, 2013

On May 1, 2013, Escajeda received a phone call from a police officer

stating that Father had been arrested for theft.

11. May 8, 2013

On May 8, 2013, Escajeda went by Father and Mother’s friend’s house and

saw Father and Mother walking down the road. Father and Mother informed

Escajeda that they were on the way to visit their friends; that they had sold their

car; that Mother had stayed with her father when Father went to jail the previous

week on the theft charge; that they had been staying at the Greenway Inn for the

previous couple of days; and that a friend had offered them a place to stay for a

couple of days but that Father did not know the address. Escajeda told Father

and Mother to utilize Union Gospel Mission and some of the other shelters;

Escajeda said that the family was already aware of homeless resources.

Escajeda told Father and Mother that FBSS would be contacting them to perform

an assessment and to discuss services. Mother provided Escajeda with their

phone number, and Father and Mother signed medical release forms for

Escajeda to obtain the children’s medical records. Escajeda located medical

records for Amy but not for Jack, which was a concern because there was no

record of his having well-baby checkups. When Escajeda sent the release to the
pediatrician, the only information that Escajeda received was that a new patient

appointment had been scheduled for Jack, but the parents were a no-show.

Thus, Jack had not received any immunizations since birth because of missed

appointments.

The FBSS worker told Escajeda that she had attempted to contact Father

and Mother to start the assessment but had not received any return calls.

Escajeda testified that the Department’s concerns regarding the children were

that the family was homeless and was not utilizing community resources that had

been extended to them. Escajeda said that Father had reported in the past that

he had been diagnosed with bipolar disorder but was not on medication, and

Escajeda testified that was a concern because he had young children to care for.

Escajeda testified that the case was disposed of as unable to determine for

physical neglect and unable to determine for neglectful supervision for both

children by both parents.

12. June 13, 2013

CPS utilized the special investigator a second time to locate the family,

and the special investigator located Father in jail in Tarrant County on June 13.

Father was released the following day.

13. July 3, 2013

On July 3, 2013, law enforcement notified CPS that they needed

assistance because the family was panhandling on Jacksboro Highway.

Escajeda met with Father and Mother, who informed her that they had been
staying in a hotel that Paternal Grandmother had been paying for but that they

had checked out of the hotel. The family had some clothing, “infant care,”

diapers, snacks, and toys. Escajeda allowed the children to cool off in her pickup

because they appeared to be hot but were not malnourished or dehydrated.

Father and Mother agreed to take drug tests and tested negative for all

substances.10

Escajeda told Father and Mother that they needed to find a possible

relative or kinship placement or go to a shelter or that foster care would become

a possibility. Father and Mother had money for the bus and said that they would

go to a shelter. Escajeda watched the family get on the bus; it was her

understanding that they went to the Salvation Army but did not stay there for an

extended period of time.

14. July 8, 2013

On July 8, 2013, police observed the family living behind a store, and the

children were taken to the hospital for bug bites and for a diaper rash. Father

and Mother told the hospital that they were planning to move to Arkansas on July

11, 2013. The affidavit noted that court-ordered services could not be pursued

because the family did not have a stable residence at which to serve paperwork.

10
Escajeda testified that Father and Mother were not drug tested more
frequently because CPS had trouble locating Father and Mother.
 C. The Referral that Led to the Removal of the Children

On July 22, 2013, the Department received a referral for neglectful

supervision and physical neglect of Amy and Jack by Father and Mother. The

referral alleged the following: Father, Mother, Amy, Jack, and Paternal

Grandmother had been living outside of a “convenience store/car wash” for at

least two months; the family slept inside the car wash; the two-year-old child

went inside the convenience store to ask for food and told a passerby that she

had eaten only gummy bears for the previous two days; Father yanked the child

by the arm when she said this and stated, “[D]on’t tell anyone that you don’t eat

all the time”; the parents were intoxicated at the grocery store on July 22; the

younger child was never seen with any clothing on other than diapers; the older

child had been wearing the same dress for two months; the children did not have

shoes on; the older child was often rinsed off with a hose because she was dirty;

the parents were often seen smoking cigarettes and holding “tall boys” of beer in

their hands and were often intoxicated; Father had asked patrons of the store for

“dope” on several occasions; and the two-year-old child slept in a stroller, and the

eight-month-old child slept in a car seat.11

11
Also attached to the petition for protection are handwritten affidavits from
two witnesses describing what they had seen at the car wash and convenience
store. One of the affiants stated, “These children live on the cement at this little
store every nigh[t] and all day during the heat.” Both affiants stated that Amy had
asked them for food.
 On the afternoon of July 23, 2013, Natassia Howlett, an investigator with

the Department, went to the car wash near River Oaks where the family was

reported to be living.12 Howlett walked up to Mother and Father, and they

confirmed their identities. Howlett discussed the allegations from the referral with

Father and Mother. Father said that they had been homeless for over a year and

that it could have been two or three years since they had last maintained a

permanent residence. Father and Mother said that they planned to get a house

at the beginning of August and had not done so sooner because they were

waiting on Paternal Grandmother to receive a disability payment. Father and

Mother said that the children always had enough food, that they receive food

stamps, and that they bought food from inside the gas station or at restaurants

like McDonald’s. Father and Mother denied that the children sleep in the car

wash in their car seats. Father and Mother, however, admitted that the children

had slept with them one night on a pallet of blankets behind a bar down the street

from the car wash but said that the children were usually with their grandmother

because it was so hot and because Father and Mother felt that people would

report them due to their lifestyle.13

12
Howlett was not sure whether the car wash was in working order or had
been abandoned; there were no cars in the other stalls while she was there.
13
Howlett testified that CPS’s report reflects that Father and Mother had
been living in the car wash with the children for two months, but Father and
Mother said that the children had not been staying at the car wash with them.
 Father stated that he had not consumed alcohol in approximately three

years; Father said that he worked at the convenience store and may have been

seen bringing beer outside for a customer. Both Father and Mother denied any

current drug use but admitted prior histories of drug use. Father admitted that

ten years ago he had used methamphetamine for approximately six months;

Mother admitted that she had tried methamphetamine at age sixteen or

seventeen but did not like it and had not used since then; and both Father and

Mother admitted using marijuana three years prior when partying with friends

after Amy was born. Mother’s oral swab tested negative, but Father tested

positive for amphetamines and methamphetamines. Father said that the test

was false14 and then went into the convenience store; when he returned, he said

that he had been fired.

Mother said that she had been diagnosed with depression and anxiety but

was not on medication and did not want to be on medication. Father stated that

he had been diagnosed with bipolar disorder and was not on medication but

wanted to be on medication.

Mother said that Maternal Grandmother had a history of methamphetamine

use; Mother was not sure if Maternal Grandmother was currently clean because

Mother was not around Maternal Grandmother that much. Father said that

14
Howlett testified that Father asked for a hair follicle test or a urinalysis to
be performed; neither of which were approved at that time.
Paternal Grandmother also had a history of methamphetamine use, but he

believed that she had been clean for three or four years.

The children were not present at the car wash. Father and Mother

originally said that the children were safe and that Howlett would not be allowed

to see them. Father and Mother later said that the children were with Maternal

Grandmother at her house near Springtown. Father and Mother called Maternal

Grandmother and asked her to bring the children to the car wash.

The children arrived with Maternal Grandmother and Paternal

Grandmother. The children appeared to be clean but did not have on shoes.

Howlett testified that Amy was allowed to walk around the car wash with no

shoes, which was a concern because the car wash was not clean.

Howlett had concerns when she spoke with the grandmothers. Paternal

Grandmother told Howlett that she had been going back and forth between

Maternal Grandmother’s home and living on the street for the previous couple of

months and that the children had been going back and forth, too. Paternal

Grandmother said that she planned to move to Arkansas in August. Paternal

Grandmother admitted to using methamphetamine within the last year and to

using marijuana within the previous few months. Paternal Grandmother tested

negative for all substances. Paternal Grandmother said that she had been

diagnosed with depression and was taking medication for that, along with pain

medication for back and ankle issues. Maternal Grandmother admitted that she

had three driving-while-intoxicated charges in the past. Maternal Grandmother
said that she had a history of methamphetamine use and had last used a couple

of years prior. Maternal Grandmother tested positive for methamphetamines and

amphetamines. Maternal Grandmother admitted that she had smoked

methamphetamine with her boyfriend a few days prior and that she had used

marijuana the previous night when the children were in her care. Although

Maternal Grandmother failed the drug test, Howlett said that Maternal

Grandmother did not appear to be under the influence while she was speaking

with her.

Howlett’s concerns regarding the welfare of the children were as follows:

“They had very little belongings,[15] no food outside. They were obviously just

sitting in the car wash. And then when I spoke with [Father,] he chose to take an

oral swab. That was concerning when that screened positive for

methamphetamines.” Howlett was also concerned about Amy’s development

because she was not talking much and was not stringing words together.

Moreover, Howlett had learned from police that both Father and Mother had

current warrants for unpaid tickets.

Howlett asked Father and Mother if they had anyone who would be able to

help them, and they said that they did not. Howlett testified that the directive she

received from her program director was to allow the children to stay with

15
Howlett testified that it was possible that the children’s belongings had
gone with them to Maternal Grandmother’s house. Howlett did not look inside
the family’s vehicle to see if the children’s belongings were inside it.
Maternal Grandmother, even though she had recently used drugs, and to pursue

a nonemergency removal the next day.

The removal was granted the following day, and Howlett went to Maternal

Grandmother’s home to pick up the children. Howlett testified that Maternal

Grandmother’s home smelled “very strongly of dog urine and cigarette smoke.

There were things stacked everywhere. Very hard to even walk through the

residence.” Howlett testified that Maternal Grandmother’s home was not

appropriate for children because there were way too many things that could have

fallen on the small children, it smelled unsanitary, and the carpet did not look

good.16 Howlett said that the grandmothers packed up a couple of things for the

children, and then Howlett took the children with her. Amy was two years old,

and Jack was nine months old.

A day or two after the removal, Father called, and Howlett told him that he

and Mother would need to secure a residence and employment or other way to

provide for their children and that they would need to complete services, such as

parenting and drug classes. Father told Howlett that he was willing to work

services.

Howlett attempted to find placements for the children with other family

members, but none of the relatives that Howlett contacted agreed to be a

placement for the children. Instead, Howlett’s conversations with the extended

16
Howlett did not take pictures of Maternal Grandmother’s house.
family raised concerns. When Howlett contacted Maternal Grandfather as a

potential placement, he said that he had some ongoing concerns because the

parents and grandparents were abusing medication, Maternal Grandmother

drank alcohol frequently, and Father and Mother “would always come and go

different places.”

When Howlett contacted Maternal Aunt as a potential placement, she said

that she did not feel like Father and Mother were trying to fix their situation, that

they put drugs before their children, that they had a history of marijuana use, that

Maternal Grandmother had a history of drug use and that she could be currently

using, and that she (Maternal Aunt) had heard rumors that Paternal Grandmother

had a history of recent drug use. Maternal Aunt admitted that she had used

drugs within the previous nine to twelve months.

When Howlett contacted Paternal Grandfather as a potential placement,

he said that he had not had contact with Father in ten years; that he had never

met Amy or Jack and did not know how many children there were; that Father

had ongoing issues with the law, had dealt with drug issues his whole life, and

had been placed in psychiatric hospitals as a child, but nothing had worked; and

that Paternal Grandmother had ongoing issues with methamphetamine, cocaine,

marijuana, and medication and that was the reason for his divorce from her.

Due to the lack of a relative placement, the Department placed the children

together in a foster home.
 D. Trial Testimony

1. Mother’s Testimony17

Prior to Amy’s birth, Father and Mother lived in an apartment and owned a

car. Mother testified that she and Father both lost their jobs, then their vehicle,

and then their home and that “it’s been a battle ever since.” Mother testified that

they had been living on the streets since Amy was about eight or nine months old

and that Amy was three years old at the time of the termination trial.

Mother testified regarding where they had stayed during their

homelessness. Mother said that they had stayed at Union Gospel Mission from

2011 to 2012, which included the time while she was pregnant with Jack. After

Mother gave birth to Jack, they went as a family to the Salvation Army and were

told that they could not stay there because Jack was too little. Mother testified

that the family had been living in River Oaks in their vehicle or in a motel since

2012. Mother explained that they had camped out with the children for one night

behind a bar that had been condemned; that they had food, drinks, clothing,

blankets, and diapers; and that they had the ability to clean the children and

bathe them at a friend’s house. Mother said that a friend had kept the children

one night.

Mother testified that she had taken Jack to the doctor, that his primary care

doctor is at John Peter Smith Hospital, and that she had also taken him to Dr.

17
Father appeared but did not testify at trial.
Levy off of Jacksboro Highway. Mother testified that both children had been

seen at Cook Children’s Hospital and that Amy had been seen for her wellness

checkups.18

On July 23, 2013, when Howlett met with Mother and Father at the car

wash,19 the children were with Paternal Grandmother at Maternal Grandmother’s

house. Mother said that the children were not wearing shoes when they arrived

at the car wash on July 23 because Maternal Grandmother said that the children

had just awakened from their naps; their shoes were in the car. Mother said that

the allegations from family members that the children were dirty were not true.

Mother said that she does not talk to her family and that Father talks only to

Paternal Grandmother and his sister.

Mother did not know on July 23, 2013, that Maternal Grandmother had

recently smoked methamphetamine when Mother allowed her access to the

children, but Mother was aware that Maternal Grandmother had a history of

abusing methamphetamine. Mother testified that it concerned her when she

heard that Maternal Grandmother had recently used methamphetamine, but she

18
The “Child’s Service Plan” for Jack noted, “Parents also indicate that he
has not had any immunizations since birth due to missed appointments,” and that
the doctor who saw him a week after the removal noted that he was slightly
underweight.
19
Mother testified that she did not stay at the Presbyterian Night Shelter in
July 2013 because they did not allow children. Mother testified that she
understood that it would be a concern for her children to be outside for an entire
day in the summer heat because of the possibility of dehydration. Mother
explained that the shelter would put them out all day long, too.
testified that the children were also with Paternal Grandmother and Maternal

Aunt. Mother did not know that Maternal Grandmother had used marijuana while

the children were in her care.

Mother testified that she had received the service plan on July 24, 2013,

and that her caseworker at that time went over it with her. Mother testified that

she was familiar with her service plan and that it required her to attend parenting

classes, counseling, and domestic violence classes and to complete a psychiatric

evaluation and a drug evaluation.20 Mother testified that her current caseworker

had explained to her the importance of completing her service plan.

Mother testified that after the children were removed, she became

pregnant and miscarried. Mother said that the miscarriage set her back on her

compliance with her service plan.

Mother testified that she had not completed parenting classes. Mother

initially blamed her failure to complete her parenting classes on not having

transportation. Mother then said that she had only one parenting class left to

take but that she was required to start over with her classes due to being tardy to

a class. She explained that her visits were from 9 to 10 a.m.; that the parenting

class started at 10 a.m.; and that because she was one minute late to a

20
The record reveals that the service plan also required Father and Mother
to maintain steady and legal employment and to provide proof of employment via
paycheck stubs by the fifth of every month; to maintain safe, stable, and
appropriate housing; and to refrain from involvement in criminal activities and
illegal acts.
parenting class, they required her to start all over. On cross-examination, Mother

admitted that her visitation was changed to enable her to arrive on time for her

parenting classes and that she knew the parenting class’s attendance policy from

the beginning. Mother later clarified that she had transportation to get to her

parenting classes.

Mother testified that she had not completed counseling. Mother said that

she had only three sessions of individual counseling left but that she had missed

one session due to her health and was required to start all over, so she lost three

months’ worth of classes. Mother said that her caseworker told her to talk to her

counselor about whether she could pick up where she had left off instead of

starting over.

Mother testified that she was required to attend four domestic violence

classes but that she did not understand why she needed to attend domestic

violence classes because there had never been abuse between her and Father

and she did not even know where to go for the classes. Mother later admitted

that her service plan dated September 2013 had specified that she was to attend

domestic violence classes at Ben Avenue and that her service plan had not been

changed. Mother said that some of her caseworkers had told her that she

needed to go to the domestic violence classes and that some of her caseworkers

had told her that she did not need to go. Mother admitted that she chose to

ignore the caseworkers who had recommended that she attend the domestic
violence classes even though she knew it might be safer for her and for her

children.

Mother testified that she had completed the psychiatric evaluation and that

it was on file at JPS Hospital. During the psychiatric evaluation, Mother was

diagnosed with depression. She was not taking medication for depression at the

time of the termination trial because she felt “a lot better being [herself], not on

medication.” Mother testified that she had previously taken the depression

medication and that it made her sleepy. Mother agreed that she was making a

decision as to what she wanted to do and what was safest for her and her

children. But Mother admitted that it would be in her best interest to follow the

doctor’s recommendations.

Mother testified that she had never used methamphetamine, that she had

“never had any drug use,” and that drugs and alcohol have never been an issue

for her. Mother testified that she had taken “[q]uite a few” drug tests for CPS and

that she had “never been dirty for any of them.” Mother said that her last drug

test was a hair follicle test and that it came back negative. Mother agreed that

she had tested positive once for opiates but explained that she had a

prescription. Mother testified that she did not complete the drug evaluation;

Mother had talked to the people at Recovery Resources, and her understanding

of their requirements to attend their classes was that a person had used drugs

within the previous thirty days. Mother said that she had asked but that no one
had been able to answer her about why she was required to complete a drug and

alcohol assessment after testing negative for drugs on all of her drug screens.

Mother agreed that her service plan required her not to engage in any

criminal activity. Mother admitted that she had been arrested during the course

of the case21 and that she had told Gale Davis.22

Mother testified that neither she nor Father has a driver’s license. Mother

testified that they had received bus passes twice during the case.

Mother has a high school diploma but no college education. When asked

whether she was working, Mother said, “No. Well, Pacesetter’s Temporary

Service.” Mother said that she makes $50 per day cleaning different event

venues through Pacesetter. Mother said that Father was also working for

Pacesetter and that most of the jobs are for men. Mother testified that she and

Father had provided check stubs to their previous caseworker. Mother testified

that the children were on food stamps, WIC, and Medicaid but that she no longer

received that assistance. Mother said that she had sought assistance from

Maternal Grandfather and his wife but that they had not provided her with any

assistance.

21
An indictment and the police report for Mother’s offense of forgery of a
check from February 27, 2014, were offered but not admitted into evidence.
22
Gale Davis was one of the caseworkers who worked on this case; Mother
said that they had five caseworkers and two investigators during the case.
Mother later explained that she had been involved in seven CPS cases since
September 2011.
 Mother testified that her service plan required her to attend scheduled

visitations and that she had attended the visits. Mother said that when she went

to the visits, the children wanted to come home. Mother said that at the last visit,

Amy had squeezed Father and had said that she was scared, that she did not

want to leave, and that she wanted Father with her. Mother testified that Amy

said “all the time” that she wanted to come home and that Jack had recently

clenched Mother and said, “Mommy, go home.” Mother said that she and Father

had taken food and activities to every visit and that they had taken clothing and

shoes for the children.

Mother said that the children had been sick most of the time since they had

been in foster care and that Jack had just gotten over hand, foot, and mouth

disease.23 Mother said that Jack also had a “big old bruise on his arm” at the last

visit and that every time she asked questions, no one knew what had happened

but blamed day care.

Mother testified that Escajeda and CPS did not give her any help with

finding housing. Mother said that she had called Fort Worth Housing but was

told that there was a four-year waiting list. Mother said that she had not been

able to sign a lease or to find an apartment; at the time of the termination trial,

she still needed to stay in a shelter or with family. Mother testified that she

needed a little bit more time to complete her service plan.

23
The children’s sicknesses were investigated and attributed to being
exposed to a lot of other children at daycare.
 Mother testified that Maternal Grandmother’s home has two bedrooms and

two bathrooms. Mother testified that there were three dogs at Maternal

Grandmother’s home, that the smell of urine in the home had not been

addressed, but that she did not think that it smelled like urine in Maternal

Grandmother’s home. Mother said that Maternal Grandmother’s home had been

cleaned up to remove the clutter.

Mother said that she and Father had planned to move to Arkansas on July

26, 2013. Mother testified, “We had everything going for us. We had a home to

go to. My husband had a job. But y’all took the children two days before we had

a chance to leave, and I was not going to go somewhere where my children are

not.” She said that Paternal Grandmother had moved to Arkansas at the time of

the termination trial.

Mother testified that at the time of the termination trial she and Father were

residing at the Presbyterian Night Shelter and the Salvation Army and that they

stayed with Maternal Grandmother in Springtown on Tuesday nights because

Maternal Grandmother provided transportation to them, taking them to their visits

on Wednesdays. After the visits, they stayed in Haltom City close to Pacesetter

so that they could get back and forth to work. Mother explained that it was easier

for them to stay closer to Haltom City so that they could get up and be at

Pacesetter as close to 5 a.m. as possible; she said the sooner they arrived, the

better chance they had to get work.
 Mother testified that if the children were returned to her, she would take

them to the Presbyterian Night Shelter24 or to Union Gospel Mission. Mother had

spoken with Presbyterian Night Shelter about arrangements for bringing the

children there. Mother said that Union Gospel Mission had helped with daycare,

but she was not sure about Presbyterian Night Shelter. Mother testified that as

soon as the case was over, she and Father wanted to move with the children to

Arkansas or Washington, where Paternal Grandfather lives. Mother testified that

Father had a job in Washington and that she planned to obtain a job.

2. Mother’s Counselor’s Testimony

Vanessa Moreno-Luper, who conducted individual counseling with Mother

at Merit Family Services, testified that she met with Mother seven times.

Moreno-Luper was authorized to see Mother twelve times from August 19, 2013

to December 31, 2013 and another twelve times from January 1, 2014 to March

31, 2014.

Moreno-Luper completed an assessment with Mother, who reported that

she began using cannabis at age fourteen, that she began using

methamphetamine at age sixteen but did not let it control her because she had

seen what it had done to other people, that she had used alcohol on occasion

since age nineteen, and that she had been drug free for four to five years.

24
Mother testified that she could take her children to the Presbyterian Night
Shelter after the trial because they now have a facility for families.
Mother’s treatment plan included looking at her substance abuse history,

communication/relationship issues, and parenting issues.

Moreno-Luper testified that “[p]er the initial presenting problem, I have -- it

was determined that client’s bio mom, spouse, and mother-in-law were positive

for illegal substances.” It concerned Moreno-Luper that Mother had continued to

use Paternal Grandmother and Maternal Grandmother as support if they had a

history of drug abuse.

Moreno-Luper testified that Mother had reported that she and Father had

been homeless for over a year due to job loss and that the children spent most of

their time living with Paternal Grandmother, where Mother also spent most of her

time. Mother admitted that the children were also homeless during this time, and

Moreno-Luper discussed with Mother the need to establish and maintain safe,

stable housing; employment; and financial stability. Moreno-Luper

recommended that Mother complete everything per her service plan.

Mother did not show up for her counseling session on January 29, 2014.

On February 26, 2014, Mother told Moreno-Luper that she had not had

anything to eat. Moreno-Luper gave Mother information about local area shelters

and food banks and urged Mother to speak to her caseworker about obtaining

resources. Moreno-Luper made a phone call and told Mother that as soon as

she arrived at the Salvation Army, she would receive a meal.

Mother had a counseling session scheduled for March 12, 2014, but she

did not show. Moreno-Luper testified that Mother had not made contact with her
since February 26, 2014, and that she had not discharged Mother from

counseling.

When asked whether the children should go home with Mother, Moreno-

Luper responded, “Well, due to her instability, where would the children go?”

Moreno-Luper based her response on Mother’s living situation at the time of their

last session on February 26, 2014; Moreno-Luper was not aware of Mother’s

living arrangements at the time of the termination on June 9, 2014.

3. Conservatorship Worker’s Testimony

Sherice Hogan, a conservatorship worker with the Department, testified

that she was assigned to the case in May 2014, which was a month before the

termination trial. Hogan observed the parent-child visits on May 7 and May 14

and did not hear the children express a desire to go home but said that she was

not always present to see the entire visit. Hogan testified that the parents were

engaged with the children during the visits she had observed. Hogan could not

recall whether one or both of the children cried when they left the visit, but she

noted that the children hugged Father and Mother.

On May 21, Hogan went over Father’s and Mother’s service plans with

them and told them that their service authorizations had been renewed, that they

could begin services again, and that appointments could be made. 25 Hogan

25
Hogan explained that the authorization for Father’s and Mother’s services
had reached an end point after they had stopped working their services. When
Hogan met with them, she reiterated that the services were still available to them.
asked Father and Mother where they were living, and they said that they were

alternating between shelters and the street. Hogan asked them about

employment and requested pay stub copies, but she did not receive any the

following time that she saw them.26

On June 4, Hogan again requested pay stub copies and inquired about

Father’s and Mother’s living arrangements; they said that they were alternating

between shelters and Maternal Grandmother’s home.27 Hogan discussed the

Merit counseling with Father and Mother because they were concerned about

having to start over. Hogan advised them to contact the provider. Hogan said

that Mother asked her about having to attend domestic violence classes; Hogan

told Mother that she had signed a copy of her service plan and that she should

talk to her attorney and the provider.

Hogan testified that Father and Mother had not completed a drug and

alcohol assessment with Recovery Resource; they told Hogan that they did not

need to complete the assessment because they had not recently had a positive

drug test and that the agency would therefore not treat them. Hogan explained

that a drug and alcohol assessment would evaluate whether Father and Mother

needed services regarding drug treatment and that the treatment could range

26
Hogan testified that the CPS record included five pay stubs—four from
Father and one from Mother. The last pay stub for Father was dated March 25,
2014, and the last pay stub for Mother was dated April 3, 2014.
27
Hogan testified that she had not had the opportunity to visit Maternal
Grandmother’s home.
from classes about staying sober to inpatient treatment. Hogan testified that she

had not given Father and Mother any drug tests because when Hogan took over

the case, the parents had recently been tested for drugs and had tested

negative.

Hogan testified that Father and Mother had not completed the parenting

classes.

Hogan testified that the Department was concerned about the parents’

ability to provide shelter because there was no evidence of stable housing that

would last. Hogan testified that the housing instability posed a danger to the

children because they were two and three years old and were unable to protect

themselves and unable to care for themselves.28

Hogan testified that she had met with the children twice and that they

appeared to be doing very well in their foster placement; they were happy and

had adjusted.

4. Ad Litem’s Testimony

The children’s ad litem testified that she had visited the children on a

number of occasions in their foster home and had observed a visit. The ad litem

did not see that the children were bonded with the parents during the visit. The

ad litem explained that the children interacted with Father and Mother, but the ad

28
The family service plan dated August 6, 2013, noted that “[t]he family
does not have a stable home and often sleeps outside. The children are
exposed to unknown persons while living in an uncontrolled environment.”
litem did not see any evidence of true bonding. The ad litem did not see the

children crying when they left the visit.

The ad litem said that the children were doing “great” in their foster home.

During the ad litem’s visits to the foster home, she noted that both children were

happy and that Amy laughed frequently. The ad litem testified that Amy’s speech

had improved “tremendously.”

The ad litem recommended that the children not be returned to Father and

Mother. The ad litem pointed out that neither parent has a driver’s license and

that they were still living on the streets off and on and had not secured a

permanent place to live since Jack was born. The ad litem said that there was

no evidence that the parents’ plan to move to Arkansas with the children would

be a better situation. The ad litem testified that there were also issues with illegal

drugs and that she was not sure whether Mother had abused hydrocodone off

and on.

5. Other Evidence in the Record29

The record contains a report from the CASA volunteer. During the home

visits, Amy was happy, outgoing, and confident. Amy referred to her foster

parents as “Mama” and “Daddy” and was affectionate with both. The CASA

volunteer noted that Amy’s verbal skills had improved since her first meeting with

29
In a bench trial, we may “presume the trial court took judicial notice of its
record without any request being made and without any announcement that it
has done so.” In re K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.]
2013, pet. denied).
Amy in December 2013; the foster parents were concerned that Amy was behind

for her age and had worked with her to improve her speech and communication

skills. The CASA volunteer noted that Jack was attached to his foster parents

and seemed secure and happy in the foster home. He had been diagnosed with

asthma and had tubes placed in his ears but was doing well. Jack had gained

weight and seemed well adjusted. He enjoyed playing outside and objected

loudly when pulled away to go inside.

There were no other children in the foster home. The foster parents hoped

to adopt Amy and Jack and had relatives who were supportive and who were

engaged in the children’s lives.

The CASA volunteer’s report stated that Mother appeared to love and miss

her children. The CASA volunteer had observed a supervised visit and saw that

Mother was engaged with both children and eager to parent them, taking Amy to

the restroom and changing Jack’s diaper. The CASA volunteer noted that

Mother and the children were physically affectionate. Mother always brought an

abundance of food to the visits, though the CASA volunteer noticed that Mother

was exceptionally thin and frail looking. The children were happy during the

visits, but there was no crying or drama when it was time for them to leave.

The CASA volunteer’s report noted that Father had also been present at

the visits but often appeared sleepy. Father played with each child when they

approached him, but he was less engaged than Mother. Father had a criminal

case pending, but Father’s attorney did not give permission for the CASA
volunteer to speak to him. In January 2014, Father shared that he had a job but

that the owner could not pay him.

6. Recommendations

The Department requested that the trial court terminate Father’s and

Mother’s parental rights to the children because Father and Mother had failed to

acknowledge the circumstances that led to the children’s removal and had not

engaged in services to address those circumstances. Hogan stated, “All the

circumstances that were present at the beginning of the case are still present, all

the concerns from the investigation.” Hogan testified that she had considered

what was in Amy’s and Jack’s best interest in making the decision to terminate,

including the children’s need for stability, food, and resources that would help

them develop correctly.

The ad litem recommended the termination of Father’s and Mother’s

parental rights.

The CASA volunteer recommended in her report that it was in the best

interest of the children for the trial court to terminate Father’s and Mother’s

parental rights to both children, for the trial court to appoint the Department as

permanent managing conservator of both children, and for the children to

continue to reside in their foster home pending adoption.

Mother asked the trial court not to terminate her parental rights to the

children because “[t]he children need us just as much as we need them, and

we’ve tried to do everything we can. We’re trying everything we can.”
 E. Trial Court’s Disposition

After hearing the testimony set forth above, the trial court found by clear

and convincing evidence that Father and Mother had knowingly placed or had

knowingly allowed the children to remain in conditions or surroundings that had

endangered the children’s emotional or physical well-being, that Father and

Mother had engaged in conduct or had knowingly placed the children with

persons who had engaged in conduct that had endangered the children’s

emotional or physical well-being, and that termination of the parent-child

relationship between Father and the children and between Mother and the

children was in the children’s best interest. The trial court thereafter ordered the

termination of the parent-child relationship between Father and the children and

between Mother and the children. Father and Mother each perfected an appeal

from the trial court’s termination order.

III. BURDEN OF PROOF AND STANDARDS OF REVIEW

In a termination case, the State seeks not just to limit parental rights but to

erase them permanently—to divest the parent and child of all legal rights,

privileges, duties, and powers normally existing between them, except the child’s

right to inherit. Tex. Fam. Code Ann. § 161.206(b) (West 2014); Holick v. Smith,

685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever

permanently the relationship between a parent and a child, it must first observe

fundamentally fair procedures.” In re E.R., 385 S.W.3d 552, 554 (Tex. 2012)

(citing Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92
(1982)). We strictly scrutinize termination proceedings and strictly construe

involuntary termination statutes in favor of the parent. In re E.N.C., 384 S.W.3d

796, 802 (Tex. 2012); E.R., 385 S.W.3d at 554–55; Holick, 685 S.W.2d at 20–21.

Termination decisions must be supported by clear and convincing

evidence. Tex. Fam. Code Ann. §§ 161.001, .206(a); E.N.C., 384 S.W.3d at 802.

“[C]onjecture is not enough.” E.N.C., 384 S.W.3d at 810. Due process demands

this heightened standard because “[a] parental rights termination proceeding

encumbers a value ‘far more precious than any property right.’” E.R., 385

S.W.3d at 555 (quoting Santosky, 455 U.S. at 758–59, 102 S. Ct. at 1397); In re

J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also E.N.C., 384 S.W.3d at 802.

Evidence is clear and convincing if it “will produce in the mind of the trier of fact a

firm belief or conviction as to the truth of the allegations sought to be

established.” Tex. Fam. Code Ann. § 101.007 (West 2014); E.N.C., 384 S.W.3d

at 802.

For a trial court to terminate a parent-child relationship, the Department

must establish by clear and convincing evidence that the parent’s actions satisfy

one ground listed in family code section 161.001(1) and that termination is in the

best interest of the child. Tex. Fam. Code Ann. § 161.001; E.N.C., 384 S.W.3d

at 803; In re J.L., 163 S.W.3d 79, 84 (Tex. 2005). Both elements must be

established; termination may not be based solely on the best interest of the child

as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re C.D.E., 391 S.W.3d 287, 295 (Tex. App.—

Fort Worth 2012, no pet.).

A. Legal Sufficiency

In evaluating the evidence for legal sufficiency in parental termination

cases, we determine whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction that the challenged ground for

termination was proven. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). In this

case, Father and Mother challenge the endangering-environment and

endangering-conduct findings. See Tex. Fam. Code Ann. § 161.001(1)(D), (E).

We review all the evidence in the light most favorable to the finding and

judgment. J.P.B., 180 S.W.3d at 573. We resolve any disputed facts in favor of

the finding if a reasonable factfinder could have done so. Id. We disregard all

evidence that a reasonable factfinder could have disbelieved. Id. We consider

undisputed evidence even if it is contrary to the finding. Id. That is, we consider

evidence favorable to termination if a reasonable factfinder could, and we

disregard contrary evidence unless a reasonable factfinder could not. See id. “A

lack of evidence does not constitute clear and convincing evidence.” E.N.C., 384

S.W.3d at 808.

We cannot weigh witness credibility issues that depend on the appearance

and demeanor of the witnesses because that is the factfinder’s province. J.P.B.,

180 S.W.3d at 573, 574. And even when credibility issues appear in the
appellate record, we defer to the factfinder’s determinations as long as they are

not unreasonable. Id. at 573.

B. Factual Sufficiency

In reviewing the evidence for factual sufficiency, we give due deference to

the factfinder’s findings and do not supplant the verdict with our own. In re

H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We determine whether, on the entire

record, a factfinder could reasonably form a firm conviction or belief that the

parent violated section 161.001(1)(D) or (E) and that termination of the parent-

child relationship would be in the best interest of the child. Tex. Fam. Code Ann.

§ 161.001(1)(D)–(E), (2); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If, in light of

the entire record, the disputed evidence that a reasonable factfinder could not

have credited in favor of the finding is so significant that a factfinder could not

reasonably have formed a firm belief or conviction in the truth of its finding, then

the evidence is factually insufficient. H.R.M., 209 S.W.3d at 108.

IV. SUFFICIENCY OF EVIDENCE TO SUPPORT ENDANGERING-ENVIRONMENT AND
ENDANGERING-CONDUCT FINDINGS

In their first and second issues, both Father and Mother argue that the

evidence is legally and factually insufficient to support the section 161.001(1)(D)

and (E) endangerment findings.

A. Law on Endangerment

“Endanger” means to expose to loss or injury, to jeopardize. Boyd, 727 at

533; In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.).
Under section 161.001(1)(D), it is necessary to examine the evidence related to

the environment of the child to determine if the environment was the source of

the endangerment to the child’s physical or emotional well-being. J.T.G., 121

S.W.3d at 125. When termination of parental rights is based on subsection (D),

the endangerment analysis focuses on the evidence of the child’s physical

environment, but the environment produced by the conduct of the parents bears

on the determination of whether the child’s surroundings threaten his well-being.

Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied). A parent’s decision to leave a child in the care of a known drug

user is relevant to the predicate acts or omissions in subsection (D). In re K.C.F.,

No. 01-13-01078-CV, 2014 WL 2538624, at *12 (Tex. App.—Houston [1st Dist.]

June 5, 2014, no pet.) (mem. op.).

Under section 161.001(1)(E), the relevant inquiry is whether evidence

exists that the endangerment of the child’s physical well-being was the direct

result of the parent’s conduct, including acts, omissions, or failures to act. See

J.T.G., 121 S.W.3d at 125; see also Tex. Fam. Code Ann. § 161.001(1)(E). It is

not necessary, however, that the parent’s conduct be directed at the child or that

the child actually suffer injury. Boyd, 727 S.W.2d at 533; J.T.G., 121 S.W.3d at

125. The specific danger to the child’s well-being may be inferred from parental

misconduct standing alone, and to determine whether termination is necessary,

courts may look to parental conduct both before and after the child’s birth. Boyd,
727 S.W.2d at 533; In re R.W., 129 S.W.3d 732, 738 (Tex. App.—Fort Worth

2004, pet. denied).

Evidence of illegal drug use or alcohol abuse by a parent is often cited as

conduct that will support an affirmative finding that the parent has engaged in a

course of conduct that has the effect of endangering the child. In re S.N., 272

S.W.3d 45, 52 (Tex. App.—Waco 2008, no pet.).

Even though imprisonment standing alone does not constitute a continuing

course of conduct that endangers the physical or emotional well-being of a child,

it is a factor that we may properly consider on the issue of endangerment.

E.N.C., 384 S.W.3d at 805; Boyd, 727 S.W.2d at 533–34; In re M.R., 243 S.W.3d

807, 819 (Tex. App.—Fort Worth 2007, no pet.). The Department is not required

to show that incarceration was a result of a course of conduct endangering the

child; it must show only that incarceration was part of such a course of conduct.

Boyd, 727 S.W.2d at 533–34; M.R., 243 S.W.3d at 819.

As part of the endangering conduct analysis, a court may consider a

parent’s failure to complete a service plan. See In re R.F., 115 S.W.3d 804, 811

(Tex. App.—Dallas 2003, no pet.). A parent’s ability to provide financially for her

children is also a factor that may be considered under subsection (E). See In re

M.N.G., 147 S.W.3d 521, 538–39 (Tex. App.—Fort Worth 2004, pet. denied).

As a general rule, conduct that subjects a child to a life of uncertainty and

instability endangers the child’s physical and emotional well-being. See In re

S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied). A
factfinder may infer from past conduct endangering the well-being of the child

that similar conduct will recur if the child is returned to the parent. In re M.M., No.

02-08-00029-CV, 2008 WL 5195353, at *6 (Tex. App.—Fort Worth Dec. 11,

2008, no pet.) (mem. op.). Further, “evidence of improved conduct, especially of

short-duration, does not conclusively negate the probative value of a long history

of drug use and irresponsible choices.” In re J.O.A., 283 S.W.3d 336, 346 (Tex.

2009).

Because the evidence pertaining to subsections 161.001(1)(D) and (E) is

interrelated, we conduct a consolidated review. In re T.N.S., 230 S.W.3d 434,

439 (Tex. App.—San Antonio 2007, no pet.); J.T.G., 121 S.W.3d at 126.

B. Sufficient Evidence of Endangerment to Support Grounds
Challenged by Father

Father argues that his living conditions are a result of poverty and the lack

of sufficient income, which is not a sufficient ground for termination. Father also

argues that there was no evidence that Maternal Grandmother’s home posed a

real threat of injury or harm to the children’s physical or emotional well-being; that

the children’s needs were taken care of—they had food, clothing, and diapers

and had been taken to doctors and wellness visits; and that Father’s one positive

drug test does not establish a conscious course of conduct.

Father relies on Ybarra v. Tex. Dep’t of Human Servs., for the proposition

that poverty or lack of sufficient income is not a sufficient ground for termination.

869 S.W.2d 574, 578–80 (Tex. App.—Corpus Christi 1993, no writ). In Ybarra,
CPS removed the children and sought to terminate the mother’s parental rights

because after the Department had helped move the family into public housing,

(1) the children, who were ages ten to two, were found alone one time while the

mother was working; (2) the children were hungry and dirty; and (3) there were

not enough beds for them. Id. at 577–78. There was no evidence of the

conditions’ effects on the children. Id.

In the present case, the testimony at trial emphasized the children’s young

ages and how the clutter in Maternal Grandmother’s house could have fallen on

the children when they stayed there, but the main emphasis was that the family’s

housing instability—constantly moving from the shelters to the streets to motels

and back to the streets—posed a danger to the children who were unable to

protect themselves and unable to care for themselves. While we agree that

parental rights may not be terminated simply because a parent is poor, the

record here reveals that it was not poverty that led to the termination of Father’s

parental rights but rather Father’s failure to take advantage of homeless

resources. During Father’s homelessness, he refused to stay in shelters for any

length of time and constantly moved the children from place to place, did not

keep in contact with the Department to obtain services, exposed his children to

environments where known drug users were present, and subjected his children

to sleeping on pallets behind an abandoned bar and to panhandling on the
highway in the heat of summer.30 See S.D., 980 S.W.2d at 763 (stating that

conduct that subjects a child to a life of uncertainty and instability endangers the

child’s physical and emotional well-being).

Although the record establishes that the children did not appear to be

malnourished on the occasions when they were seen by the Department’s

investigators and caseworkers, the record also contains evidence of neglect.

The record reveals that Amy had asked patrons of the convenience store for

food; that Amy was allowed to walk around in the car wash without shoes on,

despite that the car wash was not clean; and that Jack had not been taken for

any well-baby checkups to obtain his immunizations. See Doyle v. Tex. Dep’t of

Protective & Regulatory Servs., 16 S.W.3d 390, 398 (Tex. App.—El Paso 2000,

30
Within his argument challenging the endangering environment finding,
Father notes that CPS was involved with the family for over two years before it
initiated a nonemergency removal and that CPS left the children with Maternal
Grandmother on July 23, 2013—the night before the removal—despite that she
had tested positive for methamphetamine and amphetamines. To the extent that
Father complains that CPS should have initiated a removal earlier because CPS
was familiar with the family’s living situation, the record is replete with evidence
that the family’s nomadic lifestyle made it difficult for CPS to initiate a court case
because the family could not be found to be served. To the extent that Father
argues that CPS also left the children with a drug user, the statute focuses on the
conduct of the parents, and the record reveals that Maternal Grandmother had
smoked marijuana the previous night, which is when Father had left the children
with her. See generally Tex. Fam. Code Ann. § 161.001. Moreover, there was
no evidence that Maternal Grandmother was under the influence on July 23,
2013, when CPS allowed the children to go home with her and Paternal
Grandmother, who was staying with Maternal Grandmother and had tested
negative for all substances on July 23.
pet. denied) (stating that a parent’s rights can be terminated based on poverty

when there is a showing that the poverty has endangered the child).

With regard to Father’s argument that one positive drug test does not

establish a conscious course of conduct, the “course of conduct” language that

Father uses is not found in the statutory grounds for termination listed in section

161.001(1)(D) or (E). See Tex. Fam. Code Ann. § 161.001(1)(D), (E). Instead,

the “course of conduct” language appears to come from Boyd, which dealt with

whether a parent’s imprisonment could constitute evidence of endangering

conduct under former Texas Family Code section 15.02(1)(E). 727 S.W.2d at

534.31 To the extent that case law requires a “course of conduct,” the factfinder

was free to believe—based on numerous reports of Father’s drug use and

intoxication throughout the three years that the Department was involved with the

family, as well as Father’s own admission that he had smoked marijuana after

Amy was born—that Father had used drugs on more than one occasion. See

S.N., 272 S.W.3d at 52 (stating that evidence of illegal drug use or alcohol abuse

by parent will support endangering-conduct finding). Moreover, Father does not

challenge the evidence that he had frequently left the children with known drug

users; that he had been arrested for theft and burglary in Kansas, that he had

31
The “course of conduct” language appears to have originated in H.W.J. v.
State Department of Public Welfare, 543 S.W.2d 9, 10–11 (Tex. Civ. App.—
Texarkana 1976, no writ). H.W.J., like Boyd, looked at terminating a parent’s
parental rights when the parent’s persistent criminality, which did not directly
endanger the child, led to protracted incarceration. 543 S.W.2d at 10–11.
gone to jail twice in the two months preceding the children’s removal, and that he

had warrants for his arrest at the time the children were removed; and that he

had failed to complete his services—all of which can be considered in an

endangering-environment analysis and an endangering-conduct analysis under

subsections (D) and (E). See E.N.C., 384 S.W.3d at 805; Boyd, 727 S.W.2d at

533–34; K.C.F., 2014 WL 2538624, at *12; R.F., 115 S.W.3d at 811.

Viewing all the evidence in the light most favorable to the trial court’s

judgment and recognizing that the factfinder is the sole arbiter of the witnesses’

credibility and demeanor, we hold (1) that there is some evidence of endangering

environment on which a reasonable factfinder could have formed a firm belief or

conviction that Father had knowingly placed or had knowingly allowed Amy and

Jack to remain in conditions or surroundings that had endangered Amy’s and

Jack’s emotional or physical well-being and (2) that there is some evidence of

endangering conduct on which a reasonable factfinder could have formed a firm

belief or conviction that Father had engaged in conduct or had knowingly placed

Amy and Jack with persons who had engaged in conduct that had endangered

their physical or emotional well-being. See Tex. Fam. Code Ann.

§ 161.001(1)(D), (E); In re A.H., No. 02-12-00096-CV, 2012 WL 4450490, at *7–8

(Tex. App.—Fort Worth Sept. 27, 2012, no pet.) (mem. op.) (holding evidence

legally sufficient to support trial court’s section 161.001(1)(E) finding because

mother’s drug use, unstable work and housing history, decisions to leave her

children with known drug users, and history of criminal violations and
incarcerations affected her ability to provide a stable living environment for child);

T.N.S., 230 S.W.3d at 439 (holding evidence legally sufficient under subsections

(D) and (E) due to parent’s drug use, incarceration, and instability).

Giving due deference to the factfinder’s endangering-environment and

endangering-conduct findings, without supplanting the factfinder’s judgment with

our own, and after reviewing the entire record, we hold that a factfinder could

reasonably form a firm conviction or belief that Father had knowingly placed or

had knowingly allowed Amy and Jack to remain in conditions or surroundings

that had endangered Amy’s and Jack’s emotional or physical well-being and that

Father had engaged in conduct or had knowingly placed Amy and Jack with

persons who had engaged in conduct that had endangered their physical or

emotional well-being. See A.H., 2012 WL 4450490, at *7–8 (holding evidence

factually sufficient to support trial court’s section 161.001(1)(E) finding because

mother’s drug use, unstable work and housing history, decisions to leave her

children with known drug users, and history of criminal violations and

incarcerations affected her ability to provide a stable living environment for child);

T.N.S., 230 S.W.3d at 439 (holding evidence factually sufficient under

subsections (D) and (E) due to parent’s drug use, incarceration, and instability).

We overrule Father’s first and second issues.
 C. Sufficient Evidence of Endangerment to Support Grounds
Challenged by Mother

Mother argues that the evidence presented at trial did not demonstrate any

act or omission on her part that could be reasonably construed as

endangerment. Mother further argues that there was an absence of evidence

regarding the effect of the family’s extended period of homelessness on the

children; that Mother did not know that Maternal Grandmother was using

methamphetamine while caring for the children; that the children appeared to be

healthy and clean and did not appear to be malnourished; and that Mother had

engaged in her services and had made significant progress in completing them.

As discussed above in analyzing the sufficiency of the evidence to support

the endangerment findings related to Father, there was testimony from Howlett

that the family’s housing instability posed a danger to the children who were

unable to protect themselves and unable to care for themselves. The record

here reveals that during Mother’s homelessness, she refused to stay in shelters

for any length of time and constantly moved the children from place to place, did

not keep in contact with the Department to obtain services, exposed her children

to environments where known drug users were present, and subjected her

children to sleeping on pallets behind an abandoned bar and to panhandling on

the highway in the heat of summer. See S.D., 980 S.W.2d at 763 (stating that

conduct that subjects a child to a life of uncertainty and instability endangers the

child’s physical and emotional well-being).
 With regard to Mother’s argument that she did not know that Maternal

Grandmother was using methamphetamine while caring for the children,32 the

record reveals that Maternal Grandmother used marijuana while she was caring

for the children on July 21, 2013, and that she had used methamphetamine a few

days prior. Although Mother told Howlett on July 22 that she was not sure

whether Maternal Grandmother was currently clean because she was not around

Maternal Grandmother that much, Father and Mother had told Howlett at the car

wash that the children were usually with Maternal Grandmother—the only one

who had consistent housing—because it was so hot. Moreover, the record

reflects that Mother was aware that Maternal Grandmother had a history of

abusing methamphetamine. See K.C.F., 2014 WL 2538624, at *12 (stating that

a parent’s decision to leave a child in the care of a known drug user is relevant to

the predicate acts or omissions in subsection (D)).

Although the record establishes that the children did not appear to be dirty

or malnourished on the occasions when they were seen by the Department’s

32
Within her argument challenging the endangerment findings, Mother
argues that the CPS investigator “demonstrated that she was not concerned with
the maternal grandmother’s ongoing drug use by allowing the maternal
grandmother to take the children home with her after testing positive for
methamphetamine use.” As explained above, the statute focuses on the conduct
of the parents, and the record reveals that Maternal Grandmother had smoked
marijuana the previous night, which is when Mother had left the children with her.
See generally Tex. Fam. Code Ann. § 161.001. Moreover, there was no
evidence that Maternal Grandmother was under the influence on July 23, 2013,
when CPS allowed the children to go home with her and Paternal Grandmother,
who was staying with Maternal Grandmother and had tested negative for all
substances on July 23.
investigators and caseworkers, the record also contains evidence that the

children were not always properly cared for. The record reveals that Amy had

asked patrons of the convenience store for food; that Amy was allowed to walk

around in the car wash without shoes on, despite that the car wash was not

clean; and that Jack had not been taken for any well-baby checkups to obtain his

immunizations. See Doyle, 16 S.W.3d at 398 (stating that a parent’s rights can

be terminated based on poverty when there is a showing that the poverty has

endangered the child).

With regard to Mother’s argument that she had engaged in her services

and had made significant progress in completing them, the record reveals that

Mother had completed only her psychiatric evaluation and that she had regularly

attended visits. Although she had attended seven counseling sessions, she had

not completed the twelve that she had been allotted and had not been

discharged from counseling. Mother also failed to complete her parenting

classes; to maintain steady and legal employment and to provide proof of

employment via paycheck stubs by the fifth of every month; to maintain safe,

stable, and appropriate housing; and to refrain from involvement in criminal

activities and illegal acts. Mother thus did not successfully complete her

services. See R.F., 115 S.W.3d at 811 (allowing court to consider a parent’s

failure to complete a service plan as part of the endangering conduct analysis).

In addition to the above evidence that Mother left the children with known

drug users in July 2013, the record further demonstrates that Mother had
endangered Amy shortly after she was born by leaving her with known drug

users so that Mother could smoke marijuana with friends and that Mother had

been arrested for theft and forgery and had warrants for unpaid tickets at the time

the children were removed—all of which have been shown to constitute

endangering conduct under subsection (E). See E.N.C., 384 S.W.3d at 805;

Boyd, 727 S.W.2d at 533–34; S.N., 272 S.W.3d at 52.

Viewing all the evidence in the light most favorable to the trial court’s

judgment and recognizing that the factfinder is the sole arbiter of the witnesses’

credibility and demeanor, we hold (1) that there is some evidence of endangering

environment on which a reasonable factfinder could have formed a firm belief or

conviction that Mother had knowingly placed or had knowingly allowed Amy and

Jack to remain in conditions or surroundings that had endangered Amy’s and

Jack’s emotional or physical well-being and (2) that there is some evidence of

endangering conduct on which a reasonable factfinder could have formed a firm

belief or conviction that Mother had engaged in conduct or had knowingly placed

Amy and Jack with persons who had engaged in conduct that had endangered

their physical or emotional well-being. See Tex. Fam. Code Ann.

§ 161.001(1)(D), (E); A.H., 2012 WL 4450490, at *7–8; T.N.S., 230 S.W.3d at

439.

Giving due deference to the factfinder’s endangering-environment and

endangering-conduct findings, without supplanting the factfinder’s judgment with

our own, and after reviewing the entire record, we hold that a factfinder could
reasonably form a firm conviction or belief that Mother had knowingly placed or

had knowingly allowed Amy and Jack to remain in conditions or surroundings

that had endangered Amy’s and Jack’s emotional or physical well-being and that

Mother had engaged in conduct or had knowingly placed Amy and Jack with

persons who had engaged in conduct that had endangered their physical or

emotional well-being. See A.H., 2012 WL 4450490, at *7–8; T.N.S., 230 S.W.3d

at 439.

We overrule Mother’s first and second issues.

V. BEST-INTEREST FINDING

In his third issue, Father argues that the evidence is legally and factually

insufficient to support the section 161.001(2) finding that termination of the

parent-child relationship between Father and the children is in the children’s best

interest. In her third issue, Mother argues that the evidence is factually

insufficient to support the section 161.001(2) finding that termination of the

parent-child relationship between Mother and the children is in the children’s best

interest.

A. Presumption and Holley Factors

There is a strong presumption that keeping a child with a parent is in the

child’s best interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and

permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. Tex. Fam. Code Ann. § 263.307(a) (West 2014).
 We review the entire record to determine the child’s best interest. In re

E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). The same evidence may be probative

of both the subsection (1) ground and best interest. C.H., 89 S.W.3d at 28; see

E.C.R., 402 S.W.3d at 249. Nonexclusive factors that the trier of fact in a

termination case may use in determining the best interest of the child include the

following:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the
future;

(C) the emotional and physical danger to the child now and in the
future;

(D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote
the best interest of the child;

(F) the plans for the child by these individuals or by the agency
seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see

E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we

consider, among other evidence, the Holley factors”); E.N.C., 384 S.W.3d at 807.

These factors are not exhaustive; some listed factors may be inapplicable

to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of
just one factor may be sufficient in a particular case to support a finding that

termination is in the best interest of the child. Id. On the other hand, the

presence of scant evidence relevant to each factor will not support such a

finding. Id.

B. Analysis of Evidence Under the Holley Factors33

With regard to the desires of the children, neither child testified at the

termination trial. At the time of the termination trial, Amy was three years old,

and Jack was twenty-one months old. Mother testified that the children had told

her at the visits that they wanted to come home. No one else heard the children

mention this; the ad litem testified and the CASA volunteer reported that the

children did not cry when they left visits. Although there was evidence that

Mother and the children were physically affectionate during visits, there was also

evidence that the children were not bonded with Father and Mother, that Amy

referred to her foster parents as “Mama” and “Daddy,” that Jack was attached to

his foster parents and seemed secure and happy in the foster home, and that the

children were doing “great” in their foster home. The trial court was entitled to

find that this factor weighed in favor of termination of Father’s and Mother’s

parental rights to the children.

33
Because the Holley factors focus on the best interest of the children, not
the parents individually, we conduct a combined best-interest analysis in
disposing of Father’s and Mother’s third issues.
 As for the emotional and physical needs of the children now and in the

future, the children’s basic needs included food, shelter, and clothing; routine

medical and dental care; a safe, stimulating, and nurturing home environment;

and friendships and activities appropriate to their ages. The record revealed that

Amy had begged for food after eating only gummy bears the two days prior, that

the children had not been provided stable housing for most of their lives, that

Jack had not been taken to any well-baby checkups before he came into the

Department’s care, and that some of the environments where the family had

lived—motels, on pallets behind an abandoned bar, and at a home with known

drug users—were not safe. In contrast, the record revealed that all of the

children’s needs were being met in their foster placement and that the foster

parents had worked with Amy to improve her speech and communication skills

due to the developmental delays that she had exhibited in her speech. Mother

testified that if the children were returned, she would take the children to

Presbyterian Night Shelter. But Mother also testified that they planned to move

to either Arkansas or Washington, that Father had a job waiting for him in

Washington, and that she would seek employment once they moved. Because

the record contains no evidence to prove that Father’s and Mother’s financial and

living arrangements would be more stable if the children were returned than what

their arrangements had been during the previous three years,34 the trial court was

34
Father concedes this in his brief, stating that “there was no evidence
concerning the stability of either location.”
entitled to find that this factor weighed in favor of termination of Father’s and

Mother’s parental rights to the children.

With regard to the emotional and physical danger to the children now and

in the future, Hogan testified that the family’s housing instability posed a danger

to the children because they were two and three years old and were unable to

protect themselves and unable to care for themselves. Even with knowledge of

Paternal Grandmother’s and Maternal Grandmother’s previous drug use, Father

and Mother entrusted the children to the grandmothers. The trial court was

entitled to find that this factor weighed in favor of termination of Father’s and

Mother’s parental rights to the children.

With regard to Father’s and Mother’s parenting abilities, the record

revealed that the parents were engaged with the children during the visits.

Mother was noted as being eager to parent the children at visits, taking Amy to

the restroom, changing Jack’s diaper, and bringing an abundance of food.

Father often appeared sleepy and was less engaged than Mother at the visits; he

played with the children only when they approached him. The record

demonstrated that Father and Mother had smoked marijuana after Amy was

born, that Father had tested positive for methamphetamine and amphetamines

the day before the children were removed, and that Father and Mother had left

the children with known drug users. It appeared to one relative that Father and

Mother chose drugs over their children. The record also demonstrated that the

children’s shelter, food, clothing, and medical needs were neglected by Father
and Mother; that Father and Mother subjected the children to panhandling on the

highway in the heat of summer; and that Father and Mother had been arrested

several times. The trial court was entitled to find that this factor weighed in favor

of termination of Father’s and Mother’s parental rights to the children.

The record revealed that the Department had attempted to provide FBSS

services to Father and Mother on numerous occasions during the two years

preceding the removal of the children and that Father and Mother did not stay in

contact with the Department to take advantage of those services. 35 The record

also demonstrated that Father and Mother did not complete their court-ordered

services as part of this case. The trial court was entitled to find that this factor

weighed in favor of termination of Father’s and Mother’s parental rights to the

children.

With regard to the plans for the children and the stability of the proposed

placement, Mother testified that as soon as the case was over, she and Father

wanted to move with the children to Arkansas or Washington, where Paternal

Grandfather lives; Mother testified that Father had a job in Washington and that

she planned to obtain a job. There was no evidence, only speculation, that the

parents’ planned move would provide more stability than their current situation.

The foster parents hoped to adopt Amy and Jack and had shown the ability to

meet all of their needs. The trial court was entitled to find that these two factors

35
The record does not support Father’s argument that “CPS did not provide
Father with available resources simply because he was homeless.”
weighed in favor of termination of Father’s and Mother’s parental rights to the

children.

With regard to the acts or omissions of the parents that may indicate that

the existing parent-child relationships are not proper ones, the analysis set forth

above—which details Father’s and Mother’s instability, their inability to meet the

children’s physical needs due to their instability, and Father’s and Mother’s poor

parenting choices, as well as their failure to take advantage of the services they

were offered—reveals that the existing parent-child relationship between Father

and the children and between Mother and the children are not proper

relationships. The trial court was entitled to find that this factor weighed in favor

of termination of Father’s and Mother’s parental rights to the children.

As for any excuse for the acts or omissions of the parents, Mother testified

that she and Father had both lost their jobs, then their vehicle, and then their

home and that “it’s been a battle ever since.” Mother said that the miscarriage

set her back on her compliance with her service plan. Mother testified that

Escajeda and CPS did not give her any help with finding housing. Although we

are not unsympathetic to Father’s and Mother’s plight, the trial court was entitled

to find that this factor weighed in favor of termination of Father’s and Mother’s

parental rights to the children.

Viewing all the evidence in the light most favorable to the best-interest

finding and considering the nonexclusive Holley factors, we hold that the trial

court could have reasonably formed a firm conviction or belief that termination of
the parent-child relationship between Father and the children was in the

children’s best interest, and we therefore hold the evidence legally sufficient to

support the trial court’s best-interest finding. See Tex. Fam. Code Ann.

§ 161.001(2); Jordan, 325 S.W.3d at 733 (holding evidence legally sufficient to

support the trial court’s finding that termination of mother’s parental rights was in

child’s best interest when most of the best interest factors weighed in favor of

termination).

Similarly, reviewing all the evidence with appropriate deference to the

factfinder, we hold that the trial court could have reasonably formed a firm

conviction or belief that termination of the parent-child relationship between

Father and the children and between Mother and the children was in the

children’s best interest, and we therefore hold that the evidence is factually

sufficient to support the trial court’s best-interest finding. See Tex. Fam. Code

Ann. § 161.001(2); Jordan, 325 S.W.3d at 733 (holding evidence factually

sufficient to support the trial court’s finding that termination of mother’s parental

rights was in child’s best interest when most of the best interest factors weighed

in favor of termination); In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort

Worth 2006, no pet.) (“A parent’s drug use, inability to provide a stable home,

and failure to comply with [a] family service plan support a finding that

termination is in the best interest of the child.”).

We overrule Mother’s and Father’s third issues.
 VI. CONCLUSION

Having disposed of Father’s three issues and Mother’s three issues, we

affirm the trial court’s judgment terminating the parent-child relationship between

Father and Amy and Jack and between Mother and Amy and Jack.

/s/ Sue Walker
SUE WALKER
JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DELIVERED: November 6, 2014