in the Interest of E.W.A., a Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-07-135-CV

IN THE INTEREST OF E.W.A., A CHILD

------------

FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

------------

MEMORANDUM OPINION 1

------------

Joshua A. and Stephanie A. appeal from the trial court’s order terminating

the parent-child relationship between them and their son, E.A, following a

bench trial. In separate briefs, Appellants both challenge the trial court’s

decision to permit the Department of Family and Protective Services (“the

Department”) to amend its petition with regard to Joshua less than seven days

before trial and the factual sufficiency of the evidence to support the trial

1
… See T EX. R. A PP. P. 47.4.
court’s section 161.001(1) and best-interest findings. See T EX. F AM. C ODE A NN.

§ 161.001 (Vernon Supp. 2007). Joshua also challenges the legal sufficiency

of the evidence to support the trial court’s section 161.001(1) findings. See

id. We affirm.

Factual Background

E.A. was born on September 4, 2004. Stephanie has five older children

of whom she has given up or lost custody, and Joshua has another child, A.A.,

with whom his parent-child relationship was previously terminated.

Stephanie has had an illegal drug problem since the birth of her first child

in 1988. In 1999, her third child tested positive for marijuana at birth; in 2001,

her fourth child tested positive for amphetamine at birth; and in 2002, her fifth

child tested positive for both marijuana and methamphetamine at birth. During

the pendency of this case, Stephanie submitted to six out of the twelve drug

tests requested by the Department. (She denied that the Department had

requested twelve tests.) One of the hair-follicle tests to which she did submit

came back positive for methamphetamine five months before trial; Stephanie

admitted that she had relapsed on methamphetamine. Another test, a

urinalysis, was reported as “off-temp,” meaning that the urine sample did not

come from Stephanie’s body at the time of the test. When Stephanie

submitted the “off-temp” sample, the drug-testing lab asked her to drink some

water and submit another urine sample, but she left the test site instead.

2
Stephanie’s mother testified that Stephanie told her she had smoked marijuana

as recently as February 14, 2007, six weeks before trial. A hair follicle test

conducted about a week before trial was negative, which indicated that

Stephanie had not used drugs for the prior ninety days.

Joshua also had a drug problem. Joshua testified that he has used

marijuana off and on since high school and methamphetamine since he was

fourteen years old. Of the twelve drug tests requested by the Department

during the pendency of this case, Joshua submitted to seven. A hair follicle

test came back positive for methamphetamine use in November 2006; Joshua

said that was because he had been associating with people who smoke

methamphetamine. He tested positive for marijuana in January 2007.

The Department asked both Stephanie and Joshua to attend a

Department-approved drug treatment program as a part of their service plans.

Neither of them attended an approved program, but both had completed an

unapproved, church-sponsored drug/alcohol class called “ACTS” by the time of

trial. The class’s teacher, Dean Cashen, who is not a licensed chemical

dependency counselor, described the class as “not a 12-step class . . . it’s a

12-lesson class.” Cashen said that anyone who attended twelve lessons would

receive a certificate of completion. Stephanie and Joshua began attending the

classes, then stopped for six or eight weeks, and then resumed attendance;

Cashen was “very comfortable” that they attended at least twelve lessons,

3
including those before and after the hiatus. Stephanie and Joshua had already

started taking the classes when they tested positive for methamphetamine in

November 2006. Cashen testified that it was very unsafe for parents of small

children to use drugs.

Stephanie changed residences frequently between E.A.’s birth and the

termination trial. She and Joshua were living together in Colorado when E.A.

was born. Sometime after E.A.’s birth, and while the three were still living in

Colorado, Joshua was convicted of assaulting Stephanie. Joshua, Stephanie,

and E.A. moved in with Stephanie’s cousin in Grand Junction, Colorado, for a

short time, and then they moved to Rusk, Texas, when E.A. was four or five

months old. When E.A. was seven months old, Stephanie left Joshua and

moved to Oklahoma without telling him where she was going; Joshua explained

that she left because “we were arguing and fighting,” and he was arrested for

domestic violence against Stephanie.

Four or five months later, Stephanie moved to Fort Worth with E.A. to

live with her father, Tom Weaver. Later that month, in August 2005, the

Department received a referral stating that E.A., who was eleven months old,

had been left unattended on a balcony outside a third-floor room at the Best

Budget Motel in Fort Worth. Stephanie testified that she was living at the

motel for a week because she “needed a break” or “vacation” from her father,

with whom she “really clash[ed] sometimes.” She could not explain how E.A.,

4
who could crawl but not walk, had escaped from the room; Stephanie said that

she was taking a nap at the time, but denied having used drugs. The

Department was unable to find Stephanie or E.A. at the motel.

After the motel incident, Stephanie and E.A. moved back in with her

father. Sometime after that, she moved in with Michael Seay, a former

boyfriend and convicted felon.

In December 2005, the Department received another referral regarding

E.A. This referral concerned reports of drug use and an allegation that

Stephanie had been seen slapping E.A. in the face. Initially, the Department

was unable to locate Stephanie or E.A., but they found Stephanie later that

month, removed E.A. from her custody, and placed him in foster care.

In January 2006, the Department agreed to an order returning E.A. to

Stephanie’s custody. Under the terms of the order, the Department was

appointed as E.A’s temporary managing conservator, and Stephanie agreed that

she and E.A. would live with Weaver and not move without notifying the

Department. Later that month, Stephanie asked for permission to move out of

her father’s house; the Department refused permission. On February 1, 2006,

when attempting to check on E.A.’s welfare, the Department learned that

Stephanie and E.A. had moved out of Weaver’s home two days earlier. The

Department did not locate Stephanie, Joshua, or E.A. until April 1, 2006.

Stephanie performed none of the services required by her service plan during

5
her two-month absence. When the Department eventually found Stephanie and

E.A., they were in a house that smelled strongly of marijuana. E.A. was dirty,

smelled of marijuana smoke, and had a bruise on his forehead. Stephanie

testified that she and E.A. were visiting a friend she called “Sexy Grandpa” (she

did not know his real name) and that the smell of marijuana was coming from

the back of the house where some “young teenage kids,” whom she did not

know, were “running around.” The Department again removed E.A. from

Stephanie’s custody and placed him in foster care.

Stephanie and Joshua married in July 2006. They lived briefly with

Michael Seay, then moved in with the Adamses—the paternal grandparents of

another of Stephanie’s children—for a few months. They next moved into a

duplex in Benbrook, where they lived for less than a month; then they moved

back in with the Adamses. Finally, in January 2007, Stephanie and Joshua

moved into another house, where they were living at the time of trial. Several

witnesses testified that their home was “very clean” and “nice.” In February

2007, they allowed a registered sex offender, who is a friend of Joshua’s, to

live with them. At the time of trial, the sex offender had moved out of their

home, but was living four doors down in a nearby duplex.

Joshua has a history of assault and domestic violence. In addition to the

assaults against Stephanie described above, he was convicted of assault-bodily

injury and assault-bodily injury to a family member in 1999 and 2000.

6
 In 2003, another of Joshua’s children, A.A., was removed from his

custody. This occurred after Stephanie began living with him. After the

removal, Joshua and Stephanie moved to Colorado, where E.A. was born;

Joshua testified they moved so he could earn money to hire an attorney. His

parental rights to A.A. were terminated in May 2004; the grounds for

termination included those set out in family code section 161.001(1)(D) and (E).

See T EX. F AM. C ODE A NN. § 161.001(1)(D), (E). Before the Department removed

A.A., she told Joshua that someone called “Cowboy” had attempted to sexually

assault her; Joshua did not report the offense.

At the time of trial, Stephanie’s fourth and fifth children were living in

Florida with her mother, Bobbie Boyd. A trial court had appointed Boyd and her

husband to serve as those children’s permanent managing conservators in

2003. Boyd testified that she and her husband wanted to be appointed to

serve as E.A.’s permanent managing conservators and that they were willing

to adopt him. A Florida agency had completed a home study on the Boyds, but

the Department had not yet received it at the time of trial. 2

Rachael Woods, the Department caseworker who handled E.A.’s case

from May until mid-August 2006, testified that she developed service plans for

2
… The Department later filed the Boyds’ home study with the trial court,
and it was filed with this court as a part of the clerk’s record. The home study
is overwhelmingly positive and recommends that E.A. be placed with the
Boyds.

7
Stephanie and Joshua. Woods said Stephanie completed her parenting classes

and psychological evaluation. She testified that Stephanie and Joshua

interacted appropriately with E.A. and that E.A. was bonded to them.

Elizabeth Bowlen was E.A.’s caseworker after mid-August 2006. She

testified that, in her opinion, although Stephanie and Joshua had completed

parenting classes in August 2006, they had not demonstrated that they could

parent E.A. and that terminating their parental rights was in E.A.’s best interest.

She said that E.A. was very happy, was “doing great” in his foster home, and

was very bonded to his foster parents and siblings. The foster family was

interested in adopting him, but Bowlen said the Department’s plan was adoption

by his grandparents, Bobbie and Chris Boyd. She testified that E.A. was always

happy to see Stephanie and Joshua and had fun playing with them, but he did

not treat them like he treated his foster parents, and he seemed more bonded

to his foster parents.

Betty Swift was E.A.’s child advocate. She testified that she had visited

E.A. at his foster home and that he was bonded with his foster family. She

also observed supervised visits between Stephanie, Joshua, and E.A.; E.A. was

accepting of their affection, but he did not exhibit any distress when he had to

leave at the end of the visits. Swift related one incident during a visitation

when Joshua gave E.A. a toy gun that “evidently . . . shocked [E.A. or]

vibrated” when he pulled the trigger; she said Stephanie and Joshua thought

8
it was funny. During another visitation, Joshua became irate after Swift told

him he needed to attend anger-management classes—he “jumped up and raised

his hands in the air and was yelling and walking back and forth”—and an aide

had to remove E.A. from the room.

In her written recommendation made and filed on the first day of trial,

Swift recommended as follows:

This Advocate cannot recommend return of [E.A.] to his parents
nor support termination, even though this child advocate recognizes
that the grounds for termination exist. It is not in the best interests
of [E.A.] to do so. Based on the fact that the optimal permanency
plan is placement of [E.A.] with his maternal grandparents Chris
and Bobbie Boyd and his other siblings, it appears to this advocate
to be counterproductive to terminate parental rights on this child
alone.

She testified that she was uncomfortable with the idea of the Boyds adopting

E.A. because they had not adopted the other two of Stephanie’s children who

were in their care (and could not, because Stephanie’s rights as to those

children remained intact). When asked if this last factor pertained more to the

best interests of the other two children, rather than E.A.’s, she replied, “Not

necessarily, because you have to think of all three children. Even if E.A. were

adopted and he had the [adoptive parents’] name, he’s got to defend that to the

other kids, so it’s just as hard on him as the other two that were, quote, never

adopted.” Ultimately, Swift testified that she could not make a

recommendation regarding termination one way or the other. She said that she

9
had told Stephanie and Joshua that “the drugs, if nothing else in the world, the

drugs will keep them from their child.”

Denise Randall, a permanency director with the Department, testified that

termination of Stephanie’s and Joshua’s parental rights with regard to E.A., as

opposed to appointing the Department as E.A.’s permanent managing

conservator, was in E.A.’s best interest because it would open the door for the

Boyds—or someone else—to adopt him. Randall said that appointing the

Department to serve as E.A.’s permanent managing conservator was not in

E.A.’s best interest because the Department had not yet received the Boyds’

Florida home study, and if the study was negative and the Department could

not place E.A. with the Boyds, he might be trapped in the foster care system

for the next sixteen years.

Dan Greene, a licensed psychologist, testified that Stephanie and Joshua

had attended his anger management class twice and described their

participation as excellent.

JoAnn Adams and E.J. Adams are the grandparents and conservators of

one of Stephanie’s daughters. The Adamses are also the pastors of a church

Stephanie and Joshua attend. JoAnn testified that Stephanie had made

dramatic and rapid improvement lately, and that Joshua “is a completely

different person.” E.J. said that both Stephanie and Joshua had made

“unbelievable” progress and described Joshua’s behavior as “excellent.” JoAnn

10
was unaware of any recent drug use. She said she would be reluctant to return

Stephanie’s daughter to her. Both JoAnn and E.J. had visited Stephanie and

Joshua’s current home and described it as “very clean” and “very neat.” E.J.

said that Joshua had a good job and that he and Stephanie had a large support

group through their church.

Stephanie’s eldest child, Sara, who was eighteen at the time of trial and

the mother of two children of her own, testified that Stephanie was a good

mother, and while she trusted Stephanie and Joshua with her own children, she

would not at the time of trial allow her children to spend the night with them.

Procedural History

The Department filed its petition for termination on December 21, 2005.

As grounds for termination, the Department alleged that Stephanie and Joshua

knowingly placed or allowed E.A. to remain in conditions or surroundings, or

engaged in conduct or knowingly placed E.A. with persons who engaged in

conduct, which endangered E.A.’s physical or emotional well-being, and that

they constructively abandoned E.A. while he was in the Department’s

conservatorship. See T EX. F AM. C ODE A NN. § 161.001(1)(D), (E), (N) (Vernon

Supp. 2007) On November 21, 2006, the trial court signed an agreed order

extending the dismissal date for the proceeding beyond the one-year statutory

deadline. See id. § 263.401(b) (Vernon Supp. 2007).

11
 On March 29, 2007—four days before trial—the Department filed an

amended petition alleging for the first time as grounds for termination as to

Joshua that a court had terminated his parent-child relationship with another

child based on a finding that his conduct violated family code sections

161.001(1)(D) or (E). See id. § 161.001(M) (Vernon Supp. 2007). Both

Stephanie and Joshua filed motions to strike the pleading as untimely or,

alternatively, for continuance. The trial court denied both motions on the first

day of trial.

After a bench trial, the trial court found by clear and convincing evidence

that Stephanie and Joshua knowingly violated family code sections

161.001(1)(D) and (E); that Joshua had had his parent-child relationship

terminated with respect to another child based on a finding that his conduct

violated sections 161.001(1)(D) or (E); and that termination was in E.A’s best

interest. The trial court terminated Stephanie’s and Joshua’s rights to E.A. and

appointed the Department as E.A.’s permanent managing conservator.

Stephanie and Joshua filed timely statements of points on appeal and notices

of appeal.

Discussion

In four issues, Stephanie challenges the factual sufficiency of the

evidence to support the trial court’s section 161.001(1) and best-interest

12
findings and argues that the trial court abused its discretion by allowing the

Department to amend its petition on the eve of trial to allege a prior termination

against Joshua. Joshua makes essentially the same arguments in three issues

and challenges the legal sufficiency to support the trial court’s findings under

section 161.001(1).

1. Did the trial court abuse its discretion by allowing the Department to
amend its termination petition less than seven days before trial?

Stephanie, in her fourth issue, and Joshua, in his first issue, argue that

the trial court abused its discretion by failing to strike an amended petition filed

by the Department four days before trial without leave of court. The amended

petition alleged for the first time the prior termination of Joshua’s parent-child

relationship with A.A. as a ground for terminating his parent-child relationship

with E.A. See T EX. F AM. C ODE A NN. § 161.001(1)(M) (setting out termination

of parent-child relationship with another child as ground for termination).

Rule 63 of the Texas Rules of Civil Procedure governs pleading

amendments. T EX. R. C IV. P. 63. A party may amend its pleadings at any time

unless the amendment will operate as a surprise; but any pleadings offered for

filing within seven days of trial shall be filed only after leave of court is

obtained. Id. We review the trial court’s ruling allowing an amended pleading

for an abuse of discretion. Hardin v. Hardin, 597 S.W.2d 347, 349–50 (Tex.

1980). A trial court abuses its discretion when its ruling is arbitrary,

13
unreasonable, or without reference to any guiding rules or legal principles. K-

Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

The trial court has no discretion to refuse an amendment unless the

opposing party presents evidence of surprise or prejudice or the amendment is

prejudicial on its face because, for example, it asserts a new cause of action or

defense. Greenhalgh v. Serv. Lloyd’s Ins. Co., 787 S.W.2d 938, 939 (Tex.

1990); Hardin, 597 S.W.2d at 349–50. But merely because an amended

pleading asserts a new cause of action does not make it prejudicial to the

opposing party as a matter of law. Smith Detective Agency & Nightwatch

Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 749 (Tex.

App.—Dallas 1996, writ denied). An amendment is prejudicial on its face if (1)

it asserts a new substantive matter that reshapes the nature of the trial itself,

(2) the opposing party could not have anticipated the amendment in light of the

prior development of the case, and (3) the opposing party’s presentation of the

case would be detrimentally affected. Id.; see also Rusk v. Rusk, 5 S.W.3d

299, 309 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The burden of

showing surprise or prejudice is on the party resisting the amendment. Hardin,

597 S.W.2d at 349. A mere allegation of surprise is not a sufficient showing.

La. & Ark. Ry. Co. v. Blakely, 773 S.W.2d 595, 597 (Tex. App.—Texarkana

1989, writ denied).

14
 The Department filed its original termination petition on December 21,

2005. The original petition identified another man, James C., as E.A.’s

presumptive father and therefore did not allege grounds for termination against

Joshua; but an affidavit attached to the petition averred that in addition to

Stephanie’s own children, “[t]here was also another child, [A.A.], [who] was

removed” from her home. The Department filed its first amended original

petition on June 13, 2006, this time identifying Joshua as E.A.’s father and

seeking to terminate his parental rights. The Department attached the same

affidavit to its amended petition. The Department filed its second amended

original petition on March 29, 2007—four days before the April 2 start of

trial—alleging for the first time the termination of Joshua’s parental rights with

regard to A.A. as grounds for terminating his rights with regard to E.A.

Both Stephanie and Joshua filed motions to strike the Department’s

second amended petition, alleging surprise to the newly-added ground for

termination. At the hearing on the motions to strike, Stephanie’s counsel

testified that she was surprised by the late allegation and that both parents

were substantially prejudiced because they had no opportunity to investigate

the allegation. Joshua’s counsel made a similar argument but did not testify.

Stephanie testified that she was living with Joshua and A.A. when the

Department removed A.A. and that she and Joshua moved to Colorado while

15
A.A. was in foster care. She first testified that they learned that Joshua’s

parental rights had been terminated when they returned from Colorado in 2004,

but then she said that she did not realize that it was a “final” termination until

a week or so before trial and that their plan “has always been to get [A.A.]

back.” She also volunteered that “[w]e’re not allowed to talk to [A.A.],” which

suggests that she knew that the Department had not simply removed A.A. from

her and Joshua’s home. The Department’s attorney did not explain why she

waited until the eve of trial to allege the prior termination, but she argued that

Stephanie and Joshua could not show surprise because they both knew—at the

very least—that the Department had removed A.A. from their home and never

returned her to their care and the affidavits filed with the original and amended

petitions put their counsel on notice of the removal as well. The trial court

denied the motions to strike, stating on the record that the late-filed amendment

did not act as a surprise because the parents and their attorneys had actual

knowledge or notice of A.A.’s removal and that earlier knowledge of the

termination would not make a difference in terms of preparation for trial

because if the termination occurred as alleged, “the whole issue is the best

interest issue that you have already prepared for.”

Under the circumstances, we cannot say that the trial court abused its

discretion by denying the motions to strike. Stephanie and Joshua alleged

16
surprise, but Stephanie also testified that she and Joshua learned of the

termination in 2004. At the very least, they both knew that the Department

had removed A.A. and had never returned her to their care and that they were

prohibited from communicating with her. Even if Stephanie and Joshua failed

to mention A.A. to their attorneys, the Department’s affidavit put counsel on

notice that A.A. had been removed from their home; thus, the parents and their

counsel could have reasonably anticipated the Department’s prior-termination

allegation in light of earlier developments in the case. Finally, as the trial court

observed, the late amendment did not detrimentally affect the parties’

preparation for trial because if the earlier termination occurred as alleged,

Joshua’s only defense to the termination of his rights with regard to E.A. was

the issue of E.A.’s best interest—an issue for which the parties were

presumably prepared. Therefore, we hold that the trial court did not abuse its

discretion by denying Stephanie’s and Joshua’s motions to strike. We overrule

Stephanie’s fourth issue and Joshua’s first issue.

2. Grounds for termination

In her second and third issues, Stephanie challenges the factual

sufficiency of the evidence to support the trial court’s endangering-surroundings

and endangering-conduct findings. In his second issue, Joshua challenges the

17
legal and factual sufficiency of the evidence to support the trial court’s

endangering-surroundings, endangering-conduct, and prior-termination findings.

a. Standards of Review

A parent’s rights to “the companionship, care, custody, and

management” of his or her children are constitutional interests “far more

precious than any property right.” Santosky v. Kramer, 455 U.S. 745, 758-59,

102 S. Ct. 1388, 1397 (1982); In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).

“W hile parental rights are of constitutional magnitude, they are not absolute.

Just as it is imperative for courts to recognize the constitutional underpinnings

of the parent-child relationship, it is also essential that emotional and physical

interests of the child not be sacrificed merely to preserve that right.” C.H., 89

S.W.3d at 26. In a termination case, the State seeks not just to limit parental

rights but to end them permanently—to divest the parent and child of all legal

rights, privileges, duties, and powers normally existing between them, except

for the child’s right to inherit. T EX. F AM. C ODE A NN. § 161.206(b) (Vernon

Supp. 2007); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). W e strictly

scrutinize termination proceedings and strictly construe involuntary termination

statutes in favor of the parent. Holick, 685 S.W.2d at 20-21; In re E.M.N., 221

S.W.3d 815, 820 (Tex. App.—Fort Worth 2007, no pet.).

18
 In proceedings to terminate the parent-child relationship brought under

section 161.001 of the family code, the petitioner must establish at least one

ground listed under subdivision (1) of the statute and must also prove that

termination is in the best interest of the child. T EX. F AM. C ODE A NN. § 161.001

(Vernon Supp. 2007); 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).

Termination of parental rights is a drastic remedy and is of such weight

and gravity that due process requires the petitioner to justify termination by

clear and convincing evidence. T EX. F AM. C ODE A NN. §§ 161.001, 161.206(a);

In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). This intermediate standard falls

between the preponderance standard of ordinary civil proceedings and the

reasonable doubt standard of criminal proceedings. In re G.M., 596 S.W.2d

846, 847 (Tex. 1980); In re C.S., 208 S.W.3d 77, 83 (Tex. App.—Fort Worth

2006, pet. denied). It is defined as the “measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the truth

of the allegations sought to be established.” T EX. F AM. C ODE A NN. § 101.007

(Vernon 2002).

19
 We must therefore consider all of the evidence, not just that which favors

the verdict. Id. But we cannot weigh witness credibility issues that depend on

the appearance and demeanor of the witnesses, for that is the fact-finder’s

province. Id. at 573, 574. And even when credibility issues appear in the

appellate record, we must defer to the fact-finder’s determinations as long as

they are not unreasonable. Id. at 573.

b. Grounds for termination: Stephanie

The trial court found that Stephanie (1) knowingly placed or knowingly

allowed E.A. to remain in conditions or surroundings which endangered his

physical and emotional well-being and (2) engaged in conduct or knowingly

placed E.A. with persons who engaged in conduct which endangered E.A.’s

physical or emotional well-being. See T EX. F AM. C ODE A NN. § 161.001(1)(D),

(E).

Under section 161.001(1)(D), the environment of a child must be

examined to determine if that is a source of endangerment to th e c h ild. Id .

§ 161.001(1)(D); In re D.T., 34 S.W.3d 625, 632 (Tex App.—Fort Worth

2000, pet. denied). Under section 161.001(1)(E), the term “endanger” means

to expose to loss or injury, to jeopardize. Boyd, 727 S.W.2d at 533.

Accordingly, when analyzing the trial court’s findings under subsection (E), we

must determine whether sufficient evidence exists that the endangerment of

20
the child’s physical well-being was the direct result of the parent’s conduct,

including acts, omissions, or failures to act. In re D.M., 58 S.W.3d 801,

811–12 (Tex. App.—Fort Worth 2001, no pet.). Termination under section

161.001(1)(E) must be based on more than a single act or omission; a

voluntary, deliberate, and conscious course of conduct by the parent is

required. T EX. F AM. C ODE A NN. § 161.001(1)(E); D.T., 34 S.W.3d at 634; In re

K.M.M., 993 S.W.2d 225, 228 (Tex. App.—Eastland 1999, no pet.). However,

it is not necessary that the parent’s conduct be directed at the child or that the

child actually suffer injury. Boyd, 727 S.W.2d at 533. The specific danger to

the child’s well-being may be inferred from parental misconduct standing alone.

Id.

To determine whether termination is necessary, courts may look to

parental conduct both before and after the child’s birth. D.M., 58 S.W.3d at

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

and instability endangers the physical and emotional well-being of a child. In

re S.D., 980 S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).

A pattern of continued drug use, including drug use during the pregnancy

of another child and a parent’s failure to remain drug-free while under the

Department’s supervision, will support a finding of endangering conduct under

section 161.001(1)(D) even if there is no direct evidence that the parent’s drug

21
use actually injured the child. Vasquez v. Tex. Dep’t of Protective & Regulatory

Servs., 190 S.W.3d 189, 196 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied) (holding evidence legally and factually sufficient to support endangering-

conduct finding when older sibling of subject child tested positive for drugs at

birth and parent continued to use drugs after subject child’s birth and during

pendency of Department’s involvement). A fact-finder may reasonably infer

from a parent’s failure to attend scheduled drug screenings that the parent was

avoiding testing because the parent was using drugs. In re W.E.C., 110

S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.). A parent’s engaging

in illegal drug activity after agreeing not to do so in a service plan for

reunification with her children is sufficient to establish clear and convincing

proof of voluntary, deliberate, and conscious conduct that endangered the

well-being of her children. In re T.N., 180 S.W.3d 376, 383 (Tex.

App.—Amarillo 2005, no pet).

The record shows that Stephanie used illegal drugs before E.A. was born,

continued to use them after he was born, and even continued to use drugs

during the pendency of the termination case. Stephanie testified that she

began using methamphetamine at age twenty and marijuana at age twenty-

three. Three of her children tested positive for illegal drugs at birth, one for

amphetamine, one for marijuana, and one for both methamphetamine and

22
marijuana. Stephanie testified that she used methamphetamine and marijuana

when pregnant with her fifth child. She denied having used drugs while

pregnant with E.A. but admitted that she used drugs after he was born. In her

psychological evaluation, Stephanie told the psychologist that she last used

marijuana in November 2005, which was after E.A. was born and before the

Department removed him from her care. In April 2006, the Department found

Stephanie and E.A. in a house that smelled strongly of marijuana smoke. After

E.A.’s removal, Stephanie submitted to only six of twelve requested drug tests.

One of the hair-follicle tests to which she did submit was positive for

methamphetamine, and another urinalysis was “off-temp.” Stephanie signed

a service plan in June 2006 in which she agreed to “demonstrate an ability to

stay away from a drug/alcohol lifestyle”; by her own admission, she used

methamphetamine after so agreeing. Stephanie’s mother testified that

Stephanie told her she had smoked marijuana on February 14, 2007, about six

weeks before trial.

On the other hand, there is no direct evidence that Stephanie abused

drugs while she was actually caring for E.A. The record also shows that

Stephanie completed a drug-counseling class shortly before trial, albeit not a

class approved by the Department. JoAnn Adams and E.J. Adams testified that

she had made dramatic progress shortly before trial. A hair follicle test

23
conducted about a week before trial indicated that Stephanie had not used

drugs for the prior ninety days.

In addition to the evidence concerning Stephanie’s drug use, the record

shows that she changed residences frequently, lived with a convicted felon

while E.A. was in her care, and allowed E.A. to crawl onto the third-floor

balcony of a motel while she slept. She also changed residences without the

Department’s permission and without telling them where she and E.A. were,

and when the Department located her two months later, she and E.A. were in

a house that smelled strongly of marijuana.

Considering all of the evidence, including the evidence which contradicts

the trial court’s findings, we hold that a reasonable fact-finder could have

formed the conviction that Stephanie endangered E.A.; thus, the evidence is

factually sufficient to support the trial court’s findings under section

161.001(1)(D) and (E). We overrule Stephanie’s second and third issues.

c. Grounds for termination: Joshua

The prior termination of a parent-child relationship based on a finding that

the parent violated paragraph (D) or (E) of section 161.001(1) is grounds for the

subsequent termination of a parent’s relationship with another child. T EX. F AM.

C ODE A NN. § 161.001(1)(M). The trial court admitted into evidence the order

terminating the parent-child relationship between Joshua and A.A. in 2004,

24
and the order states that the trial court found that Joshua violated both

paragraphs (D) and (E) with regard to A.A. Therefore, the evidence is both

legally and factually sufficient to support the trial court’s finding in the instant

case as to paragraph (M). See In re J.M.M., 80 S.W.3d 232, 243 (Tex.

App.—Fort Worth 2002, pet. denied) (holding prior termination order that

contains paragraph (D) or (E) findings is legally and factually sufficient to

establish grounds for subsequent termination under paragraph (M)), disapproved

on other grounds, In re J.F.C., 96 S.W.3d 256, 267 (Tex. 2003); see also In

re S.A.P., 169 S.W.3d 685, 706 (Tex. App.—Waco 2005, no pet.) (holding

evidence legally and factually sufficient under paragraph (M) when parent did

not challenge fact of prior termination).

Joshua argues that literal application of paragraph (M) will lead to absurd

results that the legislature did not intend, citing the hypothetical example of a

parent whose relationship with one child is terminated, who thereafter reforms,

and whose relationship with another child is later terminated under paragraph

(M) even if the person has become a “wonderful parent.” But section 161.001

guards against this hypothetical result by requiring a finding that termination is

in the child’s best interest, and the best interest analysis—which we conduct

in the following section of this opinion—takes into consideration the concerns

Joshua raises in his brief. See T EX. F AM. C ODE A NN. § 161.001.

25
 We hold that the evidence is legally and factually sufficient to support the

trial court’s finding under paragraph (M). Because a finding of a violation of a

single paragraph of section 161.001(1)—coupled with a finding that termination

is in the child’s best interest—will support a termination order, we need not

consider Joshua’s argument that the evidence is legally and factually

insufficient to support the trial court’s findings under paragraphs (D) and (E).

See id.; T EX. R. A PP. P. 47.1. We overrule his second issue.

d. E.A.’s best interest

Prompt and permanent placement of the child in a safe environment is

presumed to be in the child’s best interest. T EX. F AM. C ODE A NN. § 263.307(a)

(Vernon 2002). There is also 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). Nonexclusive factors that the trier of fact in a termination case may use

in determining the best interest of the child include:

(1) the desires of the child;

(2) the emotional and physical needs of the child now and
in the future;

(3) the emotional and physical danger to the child now and
in the future;

(4) the parental abilities of the individuals seeking custody;

(5) the programs available to assist these individuals to
promote the best interest of the child;

26
 (6) the plans for the child by these individuals or by the
agency seeking custody;

(7) the stability of the home or proposed placement;

(8) the acts or omissions of the parent which may indicate
that the existing parent-child relationship is not a
proper one; and

(9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

These factors are not exhaustive; some listed factors may be inapplicable

to some cases; other factors not on the list may also be considered when

appropriate. 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.

We will consider the evidence under each of the Holley factors to

determine if it would produce in the mind of the trier of fact a firm belief or

conviction that termination is in E.A.’s best interest. See T EX. F AM. C ODE A NN.

§ 101.007.

(1) E.A.’s desires.

E.A., who was only two years old at the time of trial, did not testify or

verbally express his desires. The Department argues that testimony that E.A.

27
accepted his parents’ hugs but did not initiate them and that he was bonded to

his foster family supports a finding that E.A.’s desires weighed in favor of

termination. But Rachael Woods testified that E.A. was bonded to Stephanie

and Joshua, too, and the Department did not plan to place E.A. with his foster

family. While the evidence cited by the Department may be some evidence of

E.A.’s desires, it is not clear and convincing evidence.

(2) E.A.’s emotional and physical needs now and in the future.

As the Department acknowledges, there was no evidence that E.A. has

any special physical needs, and the child advocate reported that he appeared

to be happy, healthy, and developmentally on target. The child advocate also

expressed concern that E.A. would be emotionally harmed if the trial court

ordered termination and thereby opened the door for E.A.’s adoption by Bobbie

and Chris Boyd, who had custody of but could not adopt E.A.’s two half

siblings. The Department points to Stephanie’s and Joshua’s domestic

instability as evidence supporting termination, and that instability is well

established by the record.

(3) The emotional and physical danger to E.A. now and in the future.

Some evidence presented at trial supports the conclusion that immediate

reunification between E.A., Stephanie, and Joshua might put E.A. in emotional

and physical danger now and in the future. Foremost among such evidence is

28
Stephanie’s and Joshua’s long-time drug use and, in Stephanie’s case, the

admitted use of illegal drugs during the pendency of this proceeding, or in

Joshua’s case, the apparent use of drugs suggested by his missed and failed

drug tests. This evidence weighs heavily in favor of termination. On the other

hand, other evidence suggests that both parents made rapid if late progress in

putting their drug use behind them. Similarly, with regard to Stephanie and

Joshua’s history of domestic violence, both were taking anger management

classes, albeit belatedly.

(4) The parental abilities of the persons seeking custody.

Neither Stephanie nor Joshua has exhibited exemplary or even passable

parenting abilities in the past. Stephanie has five other children but has raised

none of them. Joshua’s relationship with his daughter was terminated. The

history of domestic violence, drug use, domestic instability, and—in Stephanie’s

case—unemployment supports a finding that reunification would not be in

E.A.’s best interest, at least at the present time. By contrast, the Boyds, with

whom the Departm ent intends to place E.A., have been raising two of

Stephanie’s other children for several years.

(5) Programs available to assist those seeking custody.

Our review of the record finds no significant evidence related to this

factor.

29
 (6) The plans for E.A. of those seeking custody and
(7) the stability of the home or proposed placement.

Bobbie Boyd testified that she and her husband wanted E.A. to be placed

with them and that they were “willing to consider” adoption. Denise Randall

testified that termination of Stephanie’s and Joshua’s parental rights was in

E.A.’s best interest because the Department had not yet received the Boyds’

home study, and if the home study turned out to be negative and the

Department could not place E.A. with the Boyds, termination would allow

someone else to adopt E.A, thus keeping him out of foster care for the next

sixteen years.

Betty Swift, E.A.’s child advocate, recommended placing E.A. with the

Boyds permanently and explained, “I feel like the child has a good future there.

I think that he has the siblings there. They’ve exhibited very good parenting

skills as far as what we’ve seen with [the other children] here. I think he needs

to be with his siblings.” But Swift stopped short of recommending termination,

testifying, “I’m still struggling with it. . . . I wish I could tell you this is exactly

what I would recommend. I’m sorry. I can’t do this.”

(8) Acts or omissions of the parents which may indicate that the
existing parent-child relationship is not a proper one.

We have already detailed the evidence that may indicate that the existing

parent-child relationship between Stephanie, Joshua, and E.A. is not a proper

30
one, including the parents’ drug use, domestic instability, and domestic

violence. More than any other evidence, this evidence weighs heavily in favor

of a finding that termination is in E.A.’s best interest. On the other side of

scale is the testimony, which makes this a difficult case, that Stephanie and

Joshua have made significant, if belated, changes and improvements in their

lives.

(9) Any excuse for the acts or omissions of the parents.

The record does not reflect any excuses for Stephanie’s and Joshua’s

acts and omissions.

Considering all of the evidence relevant to the Holley factors, including

the evidence that contradicts the trial court’s best-interest findings, we hold

that a fact-finder could rationally have formed a firm belief or conviction that

termination of Stephanie’s and Joshua’s parental rights as to E.A. is in E.A.’s

best interest; therefore, the evidence is factually sufficient to support the trial

court’s best-interest findings. We therefore overrule Stephanie’s first issue and

Joshua’s fourth issue.

Conclusion

Having overruled all of Stephanie’s and Joshua’s issues, we affirm the

trial court’s termination order.

31
 ANNE GARDNER
JUSTICE

PANEL F: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: April 24, 2008

32