Opinion issued January 31, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00736-CV
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IN THE INTEREST OF Z.L.W., A CHILD
On Appeal from the 314th District Court
Harris County, Texas
Trial Court Case No. 2011-04570J
MEMORANDUM OPINION
This is an appeal from the termination of the parental rights of a mother,
K.E.W., with respect to her daughter, Z.L.W. See TEX. FAM. CODE ANN.
§ 161.001 (West Supp. 2012). On appeal, the mother argues that the evidence is
legally and factually insufficient to support the trial court’s findings that she
committed a predicate act required for termination and that termination was in her
daughter’s best interests. The Department presented evidence that the mother used
and sold illegal narcotics both during her pregnancy and after her daughter was
removed from her custody. This evidence was sufficient to support a
determination that the mother engaged in conduct which endangered the physical
or emotional well-being of the child, see id. § 161.001(1)(E), and, along with other
relevant considerations, that termination would be in the child’s best interest.
Accordingly, we affirm.
Background
Appellant K.E.W. was in jail when she gave birth to her daughter, Z.L.W.
The mother had been jailed on a conviction for delivery of cocaine, and she
admitted she had committed the offense while pregnant. The mother also admitted
she used cocaine during her pregnancy with her daughter—she admitted using
cocaine as late as January 2011, and the child was born in July 2011. After Z.L.W.
was born, the Department placed the infant in the same foster home as her older
brother, to whom the mother had previously relinquished her parental rights. That
same day, the Department filed a petition to terminate the mother’s parent-child
relationship with her daughter and requested that it be appointed temporary sole
managing conservator. Two days later, the mother was released from jail.
Ten days after the filing of the termination action, the mother tested positive
for cocaine. After a hearing, the court ordered that the mother comply with a
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family plan of service in order to obtain the return of her child. The order also
specifically required that she complete parenting classes, maintain stable housing
and employment, and remain drug-free. Nevertheless, she tested positive for
cocaine again eight months later, in May 2012.
When the case was tried before the court, the mother presented evidence that
she had turned her life around after her release from jail. She disputed the
evidence that she had used cocaine since that time, testifying that that the May
result was a false positive. She voluntarily submitted to two additional drug tests,
in June and August 2012, which resulted in negative results for drug use. She also
presented evidence that she had complied with the other aspects of the court-
ordered plan to obtain the return of her daughter. She had maintained stable
employment and housing. The child’s caseworker testified that the mother’s home
was appropriate and that she bonded with her daughter over the course of her
supervised visits. The mother successfully completed the required counseling
services and a psycho-social evaluation.
Even considering the mother’s progress, the Department still contended that
termination of parental rights was in the child’s best interest. With respect to the
drug tests, a representative of the company that analyzed the results testified that
the amount of cocaine detected in the mother’s hair follicle collected in May 2012
was indicative of using cocaine “two or three days in a row,” and approximately
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half the amount that would indicate “a chronic cocaine user.” The witness also
testified that the later tests arranged by the mother did not undermine the positive
results obtained in May, because that test used a more sophisticated testing
technique and reflected a different period of time than the later tests. The
Department also presented the testimony of a caseworker stating that Z.L.W. had
been with the foster parents almost her whole life and that she could remain with
her older brother if the foster parents adopted her, which they intended to do.
The trial court found by clear and convincing evidence that the mother had
engaged in conduct that endangered her daughter’s physical or emotional well-
being, see TEX. FAM. CODE ANN. § 161.001(1)(E), and that the mother failed to
comply with a court order establishing the actions necessary for her to obtain the
return of a child placed with Department, see id. § 161.001(1)(O). Additionally,
the court found that termination was in the child’s best interest, see id. §
161.001(2), that appointment of a parent as managing conservator would not be in
her best interest, and that appointment of the Department as sole managing
conservator would be in her best interest. The mother filed a motion for new trial
challenging the legal and factual sufficiency of the evidence supporting the
termination decree, which the trial court denied. The mother then filed this timely
appeal.
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Analysis
In three issues, the mother challenges the legal and factual sufficiency of the
evidence supporting the judgment terminating her parental rights with respect to
Z.L.W. Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355, 361 (Tex. 2003). A parent’s right to the care, custody, and
control of her child is a precious liberty interest protected under the Constitution.
See, e.g., Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000);
Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982).
Accordingly, termination proceedings are strictly scrutinized on appeal. Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). Clear and convincing evidence must
support the decision to terminate parental rights. In re J.F.C., 96 S.W.3d 256,
263–64 (Tex. 2002); see also Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92.
Evidence is legally sufficient if it is “such that a factfinder could reasonably
form a firm belief or conviction about the truth of the matter on which the State
bears the burden of proof.” J.F.C., 96 S.W.3d at 265–66; see TEX. FAM. CODE
ANN. § 101.007 (West 2008). We review “the evidence in the light most favorable
to the judgment,” meaning that we “must assume that the factfinder resolved
disputed facts in favor of its finding if a reasonable factfinder could do so.” J.F.C.,
96 S.W.3d at 266. “If, after conducting its legal sufficiency review of the record
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evidence, a court determines that no reasonable factfinder could form a firm belief
or conviction that the matter that must be proven is true, then that court must
conclude that the evidence is legally insufficient.” Id.
Under factual sufficiency review, we must give due consideration to
evidence that the factfinder could reasonably have found to be clear and
convincing. Id. We consider whether the disputed evidence is such that a
reasonable factfinder could not have resolved that disputed evidence in favor of its
finding. Id. “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.” Id.
In proceedings to terminate the parent-child relationship, the Department
must establish that one or more of the acts or omissions listed in Family Code
section 161.001(1) occurred and that termination is in the best interest of the child.
See TEX. FAM. CODE ANN. § 161.001. Both elements must be established, and
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). “Only one predicate finding under section 161.001(1) is necessary to
support a judgment of termination when there is also a finding that termination is
in the child’s best interest.” A.V., 113 S.W.3d at 362. In this case, the trial court
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based the termination of the mother’s parental rights on the predicate grounds of
endangerment, see TEX. FAM. CODE ANN. § 161.001(1)(E), and failure to comply
with a court order, see id. § 161.001(1)(O).
I. Endangerment (§ 161.001(1)(E))
The mother challenges the trial court’s findings that she endangered her
daughter. The predicate condition of section 161.001(1)(E) is satisfied if the
parent has “engaged in conduct . . . which endangers the physical or emotional
well-being of the child.” Id. § 161.001(1)(E). In this context, “endanger” means to
expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533. The term
means “more than a threat of metaphysical injury or the possible ill effects of a
less-than-ideal family environment,” but “it is not necessary that the conduct be
directed at the child or that the child actually suffers injury.” Id. The Department
bears the burden of introducing evidence concerning the offense and establishing
that the offense was part of a voluntary course of conduct that endangered the
child’s well-being. In re E.N.C., 384 S.W.3d 796, 805 (Tex. 2012); see also
Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608, 616–17 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). To determine whether termination
is justified, courts may look to parental conduct both before and after the child’s
birth. J.O.A., 283 S.W.3d at 345. The conduct need not occur in the child’s
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presence, and it may occur “both before and after the child has been removed.”
Walker, 312 S.W.3d at 617.
“[A] parent’s use of narcotics and its effect on his or her ability to parent
may qualify as an endangering course of conduct.” J.O.A., 283 S.W.3d at 345. A
mother’s drug use during pregnancy may be considered endangering to the unborn
child. See Latham v. Dep’t of Family & Protective Servs., 177 S.W.3d 341, 348
(Tex. App.—Houston [1st Dist.] 2005, no pet.); Robinson v. Texas Dep’t of
Protective & Regulatory Servs., 89 S.W.3d 679, 687 n.9 (Tex. App.—Houston [1st
Dist.] 2002, no pet.). Moreover, illegal drug use also may support termination
under section 161.001(1)(E) because “it exposes the child to the possibility that the
parent may be impaired or imprisoned.” Walker, 312 S.W.3d at 617.
The mother in this case relies on a recent decision of the Supreme Court of
Texas, In re E.N.C., 384 S.W.3d 796 (Tex. 2012), to argue that the fact she was
incarcerated at the time her daughter was born “does not in and of itself constitute
legally sufficient proof to support the endangerment finding.” But we need not
decide whether that fact alone was sufficient, because the record in this case
reflects much more. The mother admitted using cocaine as late as January 2011,
only six months before the birth of her child, at a time when she was pregnant.
The drug test results presented at trial also showed that the mother used cocaine
after the child was removed from her and at a time when she was subject to a court
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order requiring her to remain drug-free as a condition for the return of the child.
Using drugs under those circumstances subjected the mother to the general risk of
incarceration and also, in the context of the ongoing termination proceeding,
presented a specific risk that her parental rights would be terminated as a result.
The evidence of all of this conduct supports a finding of endangerment in the
relevant sense under section 161.001(1)(E). See, e.g., Latham, 177 S.W.3d at 348
(drug use during pregnancy); Walker, 312 S.W.3d at 617 (noting drug use during
pendency of parental termination proceedings as an endangering factor due to the
effect on a parent’s “life and ability to parent”).
Although the mother denied using cocaine after the child’s birth, the trial
court, as factfinder, was the sole arbiter of the credibility of witnesses. See In re
H.R.M., 209 S.W.3d 105, 109 (Tex. 2006). In light of the evidence presented
about the positive drug test conducted in May 2012, the court was not required to
believe the mother’s assertion that the test produced a false positive. Accordingly,
we conclude that the evidence is both legally and factually sufficient for the trial
court to have reasonably formed a firm belief that the mother engaged in conduct
that endangered her child’s well-being. We overrule the mother’s issues relating to
the legal and factual sufficiency of the evidence to support the trial court’s finding
under section 161.001(1)(E). Accordingly, we need not address the sufficiency of
the evidence under section 161.001(1)(O), her second issue, because only one
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finding under 161.001(1) is necessary to support a judgment of termination. See
TEX. FAM. CODE ANN. § 161.001; A.V., 113 S.W.3d at 362.
II. Best interest of the child (§ 161.001(2))
The mother also challenges the legal and factual sufficiency of the evidence
to support the trial court’s finding that termination of the parent-child relationship
was in the child’s best interest. In determining whether termination of the
mother’s parental rights was in the child’s best interest, we consider several
nonexclusive factors, including (1) the child’s desires, (2) the current and future
physical and emotional needs of the child, (3) the current and future physical
danger to the child, (4) the parental abilities of the person seeking custody,
(5) whether programs are available to assist the person seeking custody in
promoting the best interests of the child, (6) plans for the child by the person
seeking custody, (7) stability of the home, (8) acts or omissions of the parent that
may indicate that the parent-child relationship is improper, and (9) any excuse for
acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex.
1976). The Department is not required to prove all of these factors, and the
absence of evidence about some factors does not preclude the factfinder from
reasonably forming a strong conviction that termination is in the child’s best
interest. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). Evidence establishing one
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of the predicate acts under section 161.001(1) may also be relevant to determining
the best interest of the child. See id. at 27–28.
The Department presented clear and convincing evidence supporting
termination under several of these Holley factors. Under the third Holley factor,
the mother’s pattern of continuing cocaine abuse and commission of criminal
offenses supporting that habit was evidence that there was current and future
danger to the child. See J.O.A., 283 S.W.3d at 346–47; Robinson, 89 S.W.3d at
687. Cf. TEX. FAM. CODE ANN. § 263.307(b)(8) (West 2008) (establishing family
“history of substance abuse” as a factor to be considered in determining the child’s
best interest). Additionally, the mother’s illegal drug use during pregnancy is itself
evidence of danger to the child. Robinson, 89 S.W.3d at 687 n.9 (citing Dupree v.
Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 84 (Tex. App.—
Dallas 1995, no writ)). Under the fourth Holley factor considering parental
abilities, the Department presented evidence that the mother had relinquished her
rights to her older child because she had difficulties caring for the child due to her
involvement in illegal drug activities. Although mitigated by her successful
completion of parenting and counseling services, the mother’s positive drug test
was evidence that her difficulties caring for a child may continue because that
illegal drug involvement continues. Under the ninth Holley factor we consider any
excuses or explanations. The mother offered the explanation that her history of
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criminal convictions was due to her drug addiction which she had overcome, but
the positive test for a large amount of cocaine in her system suggested that,
contrary to her assertions, she had not successfully overcome her addiction.
Other Holley factors weigh against the trial court’s best interest finding or
are neutral. The first and second Holley factors regarding the child’s desires and
needs are neutral because the child is an infant without expressed desires and there
was no evidence of any special needs or vulnerabilities. Under the fifth factor
concerning the programs available to assist the mother, there was evidence that the
mother had successfully taken advantage of family services and a job program.
Under the seventh factor regarding the stability of the home, there was evidence
that the mother’s home was satisfactory and appropriate, although, again, this is
mitigated by the evidence showing a history of drug abuse and prostitution. See
TEX. FAM. CODE ANN. § 263.307(b)(8). There was no evidence of any improper
parent-child relationship beyond the mother’s criminal history under the eighth
Holley factor.
Finally, the Department offered evidence supporting termination under the
sixth and seventh factors regarding the plans for the child by the agency and the
stability of the proposed placement. The Department offered testimony that it
planned to place the child with her older brother in a foster home. The mother
admitted that the brother was doing well with the foster family, which had
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provided him with a safe home. The child herself was doing well with the foster
family and has been with them her entire life.
In light of these factors, we conclude that a reasonable factfinder could have
formed a firm belief or conviction that termination of the mother’s parental rights
was in the child’s best interest based on the evidence the Department presented.
See TEX. FAM. CODE ANN. § 161.001(2); J.F.C., 96 S.W.3d at 272 (holding
reasonable factfinder can form firm conviction that termination in children’s best
interest in light of evidence weighing against termination when there is also
evidence favoring termination). We overrule the mother’s third issue.
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Conclusion
The Department presented evidence that the mother used and sold illegal
narcotics both while pregnant and after the newborn child was taken into the
Department’s custody. This was legally and factually sufficient to support the trial
court’s conclusion that the mother endangered the child’s well-being. This
evidence was likewise sufficient to support the determination that termination of
parental rights was in the child’s best interest. Accordingly, we affirm the trial
court’s final decree of termination.
Michael Massengale
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
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