in the Interest of Z.M.M., a Child

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-18-00099-CV

IN THE INTEREST OF Z.M.M., a Child

From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2017PA00639
Honorable Richard Garcia, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice

Delivered and Filed: October 2, 2019

AFFIRMED

We consider this parental termination case upon remand from the Texas Supreme Court.

See In re Z.M.M., 577 S.W.3d 541 (Tex. 2019) (per curiam). Parental rights may be terminated

only upon proof by clear and convincing evidence that (1) the parent has committed an act

prohibited by section 161.001(b)(1) of the Texas Family Code, and (2) termination is in the best

interest of the child. See TEX. FAM. CODE ANN. § 161.001(b)(1)–(2). In our prior opinion, we

considered only one predicate ground for termination under section 161.001(b)(1) when the

appellant father (“Father”) contested three grounds. We now consider as grounds for termination

the statutory predicate under section 161.001(b)(1)(O), as we had in our prior opinion, and the

predicate under section 161.001(b)(1)(D), as the supreme court specifically instructed us to do.

We also consider the merits of section 161.001(d), as instructed, which alters our prior analysis
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under 161.001(b)(1)(O). We hold the evidence is legally insufficient to support the predicate

finding under section 161.001(b)(1)(D), but the evidence is legally and factually sufficient to

support the trial court’s determination under section 161.001(b)(1)(O). We also hold, as we did in

our prior opinion, that the evidence is legally and factually sufficient to support the trial court’s

finding that termination is in the best interest of the child, Z.M.M. We affirm the trial court’s

judgment.

BACKGROUND

On March 28, 2017, the Texas Department of Family and Protective Services (the

“Department”) filed a petition to terminate Father’s parental rights to Z.M.M., who was one year

old at the time. A bench trial was conducted on February 12, 2018. Department caseworker

Eletheia Hill testified that Z.M.M. lived with his mother prior to his removal and that the

Department removed Z.M.M. based on a referral alleging drug use in the home. According to Hill,

Z.M.M.’s mother admitted to using methamphetamines and marijuana. Hill also testified that

Father claimed to know that Z.M.M.’s mother was “using something” but that he took no action

because the mother kept Father away from Z.M.M.

On May 16, 2017, the trial court ordered Father’s compliance with a family service plan.

This plan required Father to participate in a parenting class; obtain and submit proof of housing;

remain drug and alcohol free; and complete a drug and alcohol assessment, as well as any

recommended treatments following the assessment. Hill testified that Father completed his

parenting class and his assessment but did not complete recommended outpatient treatment for

mild marijuana addiction. Hill also testified that Father told her he recently obtained housing, but

that because Father would not give her his address, she had been unable to confirm where he was

living. According to Hill, when she asked Father why he was not completing the conditions of his

service plan, Father claimed that he did not want to take time off work and that he did not have

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transportation. Hill testified that the Department offered Father transportation and extra time to

complete his service plan.

Hill believed it was in Z.M.M.’s best interest for Father’s parental rights to be terminated

so that Z.M.M. would have the opportunity to move forward with his foster parents through formal

adoption. According to Hill, the foster parents and Z.M.M. are bonded; they provide Z.M.M. with

a safe and stable home; they have demonstrated that they are able to take care of Z.M.M.; and

Z.M.M. has lived with them since April 2017, which is longer than the total amount of time Father

ever lived with Z.M.M. Hill also characterized Father’s visits with Z.M.M. as “off and on,” with

only two visits in the last five months.

Father also testified at the hearing. Father admitted to knowing Z.M.M.’s mother was using

drugs, but did not get involved because Z.M.M.’s mother and her current boyfriend made it

difficult for him to see Z.M.M. Father also admitted to using marijuana within six months of trial.

Further, Father testified that for a period of time he did not have a stable job or a place to stay and

he was living with friends. According to Father, he had no relatives he could rely on for support.

Father testified that he was currently working in a restaurant and was living with a friend. When

asked at trial what he wanted to happen with Z.M.M. that day, Father replied he “would ask for an

extension . . . just to get more goals where I want to be with my son.” Father admitted that he did

not have a stable home and would not be able to presently provide Z.M.M. with one.

STANDARD OF REVIEW

A parent-child relationship may be terminated only if the trial court finds by clear and

convincing evidence one of the predicate grounds enumerated in section 161.001(b)(1) of the

Family Code and that termination is in a child’s best interest. TEX. FAM. CODE ANN.

§ 161.001(b)(1), (2). Clear and convincing evidence requires “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

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established.” Id. § 101.007. We review the legal and factual sufficiency of the evidence under the

standards of review established by the Texas Supreme Court in In re J.F.C., 96 S.W.3d 256, 266–

67 (Tex. 2002).

PREDICATE FINDINGS

In his first issue, Father challenges the sufficiency of the evidence supporting the trial

court’s predicate findings under section 161.001(b)(1)(D), (N), and (O). See TEX. FAM. CODE

ANN. § 161.001(b)(1)(D), (N), (O). The trial court concluded under these subsections that there

was clear and convincing evidence that Father: (1) had knowingly placed or knowingly allowed

Z.M.M. to remain in conditions or surroundings which endanger his physical or emotional

well-being, see id. § 161.001(b)(1)(D); (2) constructively abandoned Z.M.M., see id.

§ 161.001(b)(1)(N); and (3) failed to comply with the provisions of a court order specifically

establishing the actions necessary for Father to obtain the return of Z.M.M., see id.

§ 161.001(b)(1)(O). Because termination under section 161.001(b)(1)(D) may have implications

for a parent’s parental rights to other children, the Texas Supreme Court has instructed that we

must address issues raised on appeal challenging a trial court’s finding under subsection D. See

In re N.G., 577 S.W.3d 230, 237 (Tex. 2019) (per curiam); In re Z.M.M., 577 S.W.3d at 543.

Predicate Finding Under Subsection D: Endangerment

Section 161.001(b)(1)(D) allows for termination of parental rights if, before the child was

removed, the parent “knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child[.]” TEX. FAM.

CODE ANN. § 161.001(b)(1)(D); see In re R.S.-T., 522 S.W.3d 92, 109 (Tex. App.—San Antonio

2017, no pet.) (stating the relevant period). “‘[E]ndanger’ means to expose to loss or injury; to

jeopardize.” Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). “Although

endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-

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ideal family environment, it is not necessary that the parent’s conduct be directed at the child or

that the child actually suffers injury.” In re E.A.G., 373 S.W.3d 129, 141–42 (Tex. App.—San

Antonio 2012, pet. denied) (citing In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009)). “A child is

endangered when the environment creates a potential for danger that the parent is aware of but

consciously disregards.” In re I.S., No. 04-18-00990-CV, 2019 WL 1459260, at *2 (Tex. App.—

San Antonio Apr. 3, 2019, pet. denied) (mem. op.) (quoting In re S.R., 452 S.W.3d 351, 360 (Tex.

App.—Houston [14th Dist.] 2014, pet. denied)). “[A] parent need not know for certain that the

child is in an endangering environment; awareness of such a potential is sufficient.” In re R.S.-T.,

522 S.W.3d at 109 (alteration in original) (citation omitted). Subsection D permits termination

based upon only a single act or omission. Id.

“Under subsection D, the trial court examines evidence related to the environment of the

child to determine if the environment was the source of endangerment to the child’s physical or

emotional well-being, although parental conduct can be a factor that contributes to this

environment.” Id. (citation and internal brackets omitted). “Evidence of criminal conduct,

convictions, or imprisonment is relevant to a review of whether a parent engaged in a course of

conduct that created an environment that endangered the well-being of the child.” In re I.S., 2019

WL 1459260, at *2 (internal brackets omitted) (quoting In re S.R., 452 S.W.3d at 360–61).

“Parental and caregiver illegal drug use and drug-related criminal activity likewise supports the

conclusion that [a child’s] surroundings endanger [the child’s] physical or emotional well-being.”

In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.) (citing In re S.D., 980

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

At trial, the Department’s caseworker stated that she believed only subsection O provided

a ground for termination. The Department’s attorney stated at closing that the Department sought

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termination pursuant to subsection E but did not argue how the evidence supported such a finding. 1

The trial court remarked, when announcing its findings, that it “changed” the ground from

subsection E to subsection D but did not explain its reasoning. On appeal, the Department does

not argue in support of the trial court’s finding pursuant to subsection D; instead, it asserts that

termination is supported by the trial court’s finding pursuant to subsection O and that a single

predicate ground is sufficient. 2

The record contains meager evidence related to subsection D. The Department’s

caseworker, Hill, testified that she and Father had a conversation about whether Z.M.M.’s mother

was using drugs when the mother had possession of Z.M.M. Hill testified that Father told her that

“he knew that [the mother] was using something, but she was keeping him away,” so Father never

acted to remove the child. Father testified:

[The mother] didn’t let me see the baby prior to [Z.M.M.’s removal], I mean, I
would—due to her ex-boyfriends and whatever her situation was, I couldn’t get
near the child or do anything about her drug problem, because I didn’t know what
she was doing or what she was using at the time.

Father testified that he saw Z.M.M. about once or twice a month before the case started. He

affirmed that those visits were difficult because of “the situation with [the mother] and her current

boyfriend.” Z.M.M. was born in January 2016, and the case began in March 2017. The trial court

questioned Father as to his visits in January, February, and March 2017. Father testified that he

had “short visits” with Z.M.M. in January and February 2017, at the mother’s apartment, when he

went to drop off supplies for the baby. Father was not questioned and did not provide specifics

about his visits to Z.M.M. in 2016.

1
Subsection E provides a predicate ground for termination where there is clear and convincing evidence that a parent
engaged in conduct or knowingly placed a child with persons who engaged in conduct which endangers the physical
or emotional well-being of a child. See TEX. FAM. CODE ANN. § 161.001(b)(1)(E).
2
We invited additional briefing following remand, but the Department did not submit additional briefing related to
subsection D.

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We hold the Department did not prove by clear and convincing evidence that Father

knowingly placed or knowingly allowed Z.M.M. to remain in conditions or surroundings which

endangered his physical and emotional well-being. Subsection D required Father to have an

awareness that Z.M.M. was in a potentially dangerous environment. See In re R.S.-T., 522 S.W.3d

at 109. However, the evidence at trial shows only that Father had a vague understanding of the

mother’s drug use. There is no evidence that Father knew the nature or extent of the mother’s drug

use, whether she used drugs in the home or around Z.M.M., and whether the mother’s drug use

impaired her ability to care for Z.M.M. There is no evidence that Father had knowledge of other

concerns related to Z.M.M.’s conditions or surroundings before removal, and the evidence shows

that Father was kept at a distance from the child when Z.M.M. resided with his mother. On this

meager record, no reasonable factfinder could form a firm belief or conviction that Father

knowingly placed or knowingly allowed Z.M.M. to remain in conditions or surroundings which

endangered Z.M.M.’s physical and emotional well-being. See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(D). Therefore, the evidence is legally insufficient to support the trial court’s

finding pursuant to Subsection D. See In re J.F.C., 96 S.W.3d at 266.

Predicate Finding Under Subsection O: Failure to Complete Court-Ordered Requirements

Section 161.001(b)(1)(O) provides a ground for termination of a parent-child relationship

upon proof, by clear and convincing evidence, that a parent:

failed to comply with the provisions of a court order that specifically established
the actions necessary for the parent to obtain the return of the child who has been
in the permanent or temporary managing conservatorship of the Department of
Family and Protective Services for not less than nine months as a result of the
child’s removal from the parent under Chapter 262 for the abuse or neglect of the
child[.]

TEX. FAM. CODE ANN. § 161.001(b)(1)(O). A court may not order termination under subsection

O,

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based on the failure by the parent to comply with a specific provision of a court
order if a parent proves by a preponderance of evidence that: (1) the parent was
unable to comply with specific provisions of the court order; and (2) the parent
made a good faith effort to comply with the order and the failure to comply with
the order is not attributable to any fault of the parent.

Id. § 161.001(d). 3

Subsection O, as set forth above, has three requirements: (1) the parent’s failure to comply

with a court order; (2) the child was in the Department’s care for at least nine months; and (3) the

child was removed from the parent due to abuse or neglect. Id. § 161.001(b)(1)(O); see In re E.F.,

No. 04-18-00635-CV, 2019 WL 2194539, at *2 (Tex. App.—San Antonio May 22, 2019, no pet.).

The record establishes that Z.M.M. was in the Department’s care, for over nine months, from

March 2017 until the termination trial in February 2018, and that Z.M.M. was removed for abuse

or neglect while he was in his mother’s care. On appeal, Father challenges only the first

requirement.

On May 15, 2017, the trial court ordered Father to comply with his family service plan.

Father testified that he understood and signed the plan. Among other things, the plan required

Father “to remain drug and alcohol free” and to “follow all recommendations of the [drug and

alcohol] assessment including but not limited to inpatient drug treatment.”

Father’s asserts on appeal that the only court-ordered service he did not complete was

outpatient drug treatment. He argues that he made a good faith effort to comply but was unable to

comply, through no fault of his own, because he could not get off work. While it is true that the

3
The Department argues that we should not consider the merits of section 161.001(d) because the section did not take
effect until September 1, 2017, and does not apply to a suit affecting the parent-child relationship filed prior to that
date. The Department’s petition was filed on March 28, 2017. We assume, without deciding, that section 161.001(d)
applies because the supreme court remanded this case to us for proceedings consistent with the supreme court’s
opinion and in that opinion the supreme court held “the court of appeals erred in failing to address the merits of section
161.001(d) as it relates to termination of the father’s parental rights under section 161.001(b)(1)(O).” We note the
Department made the same argument regarding the effective date of section 161.001(d) in its supreme court brief, but
the argument went unaddressed in the supreme court’s opinion.

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caseworker testified that the only service Father failed to complete was outpatient drug treatment,

Father’s family service plan required more than Father’s completion of services. The plan also

required Father “to remain drug and alcohol free.” The trial court ordered Father’s compliance

with the plan on May 15, 2017. At trial, which was held approximately nine months later on

February 12, 2018, the trial court questioned Father: “When was the last time that you—that you

used marijuana or any other illegal drugs . . . ?” Father replied: “About six months.” The trial

court sought clarification: “So, that takes you—that’s already—August, September, somewhere in

there, something like that?” Father responded: “Yes. Yes.” When the trial court asked why father

had not used drugs since then, Father responded: “I mean, I didn’t have nowhere to get around.

And, plus, I was, I guess you could say, homeless at the time.” Father does not address this

exchange in his appellate brief. Father raises no argument—and, accordingly, we do not

conclude—that he proved by a preponderance of the evidence that he was unable to comply with

the specific provision of the court-ordered family service plan that he “remain drug and alcohol

free,” or that he made a good faith effort to comply with this provision and was not at fault for

failing to comply with this provision. See TEX. FAM. CODE ANN. § 161.001(d).

“A parent’s failure to complete one requirement of [his] family service plan supports

termination under subsection (O).” In re J.M.T., 519 S.W.3d 258, 267 (Tex. App.—Houston [1st

Dist.] 2017, pet. denied) (internal citation and brackets omitted). Because Father’s noncompliance

with the court-ordered requirement that he remain drug free was unexcused, we need not address

Father’s arguments to excuse his noncompliance with the court-ordered requirement that he

complete drug treatment. See In re E.F., 2019 WL 2194539, at *4 (holding evidence of a mother’s

unexcused failure to remain drug free, as required by court order, was sufficient to support a

subsection O finding, even if the mother’s mental health condition could show her inability to

comply with other court-ordered requirements); In re N.W.L.T., No. 14-18-00497-CV, 2018 WL

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6217313, at *8 (Tex. App.—Houston [14th Dist.] Nov. 29, 2018, pet. denied) (mem. op.) (holding

finding under subsection O was supported by sufficient evidence because, even if a mother had

proven a defense under section 161.001(d) with respect to her failure to complete substance abuse

counseling, she did not attempt to invoke the defense with respect to her failure to remain alcohol-

free during the case, as required by a court order).

Accordingly, we hold that the evidence is legally and factually sufficient to support the

trial court’s finding that Father failed to comply with a court order that specifically established the

actions he needed to take for Z.M.M. to be placed in his care. See TEX. FAM. CODE ANN.

§ 161.001(b)(1)(O). We overrule Father’s first issue that the evidence is legally and factually

insufficient to support a finding on a predicate ground for termination under section

161.001(b)(1). 4

BEST INTEREST OF THE CHILD

In his second issue, Father challenges the sufficiency of the evidence supporting the trial

court’s finding under section 161.001(b)(2) that termination of his parental rights was in Z.M.M.’s

best interest. There is a strong presumption that keeping a child with a parent is in a child’s best

interest. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam). However, it is equally

presumed that “the prompt and permanent placement of the child in a safe environment is . . . in

the child’s best interest.” TEX. FAM. CODE ANN. § 263.307(a). In determining whether a parent is

willing and able to provide his or her child with a safe environment, we consider the factors set

forth in Family Code section 263.307(b). See id. § 263.307(b).

4
We do not review the sufficiency of the evidence to support the subsection N finding because only one predicate
finding under section 161.001(b)(1) is necessary to support a judgment of termination and because due process and
due course of law requirements do not demand our review of the subsection N finding. See In re N.G., 577 S.W.3d at
237 n.1; In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

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Our best-interest analysis is guided by consideration of the non-exhaustive Holley factors.

See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These factors include: (1) the child’s

desires; (2) the child’s present and future emotional and physical needs; (3) any present or future

emotional and physical danger to the child; (4) the parental abilities of the individuals seeking

custody; (5) the programs available to assist the individuals seeking custody to promote the child’s

best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the

stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate

that the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or

omissions. See id.; In re E.C.R., 402 S.W.3d 239, 249 n.9 (Tex. 2013). The Department is not

required to prove each factor, and the absence of evidence regarding some of the factors does not

preclude the factfinder from reasonably forming a strong conviction that termination is in the

child’s best interest, particularly if the evidence is undisputed that the parent-child relationship

endangered the safety of the child. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002). The focus of

our review is whether the evidence, as a whole, is sufficient for the trial court to have formed a

strong conviction or belief that termination of the parent-child relationship is in the child’s best

interest. Id.

Evidence of a parent’s drug use, inability to provide a stable home, and failure to comply

with a family service plan supports a finding that termination is in the best interest of the child. In

re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.). Father admitted to using

marijuana within six months of trial, and trial evidence established that Father was to be treated

for mild marijuana addiction following a court-ordered drug assessment. See In re L.G.R., 498

S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“A parent’s drug use

supports a finding that termination is in the best interest of the child.” (citation omitted)). The

evidence also showed that Father failed to comply with his service plan when he failed to remain

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drug free. See In re S.B., 207 S.W.3d 877, 887–88 (Tex. App.—Fort Worth 2006, no pet.) (holding

a parent’s drug use, inability to provide a stable home, and failure to comply with a service plan

supports a finding that termination is in the best interest of the child). In addition, Father’s own

testimony called into question his ability to provide a stable home to Z.M.M. Father testified to

being “nowhere [near] stable at all” for a period of time during the case and having no family

support. He testified that he was currently employed and living with a friend; however, at trial,

when asked if he thought he could be reunited with Z.M.M. that day, Father stated he was ready

to be reunited, but that he would not presently be able to provide a stable home for Z.M.M. See

In re L.G.R., 498 S.W.3d at 205 (“A child’s need for permanence through the establishment of a

stable, permanent home has been recognized as the paramount consideration in a best-interest

determination.” (internal citation omitted)); see also In re K.J.G., No. 04-19-00102-CV, 2019 WL

3937278, at *8 (Tex. App.—San Antonio Aug. 21, 2019, no pet. h.) (mem. op.) (considering a

parent’s drug use and failure to obtain and maintain stable housing and employment as a factor in

support of the trial court’s finding that termination was in the best interest of the children because

the parent’s conduct subjected the children to a life of uncertainty and instability). The caseworker

testified that Z.M.M. was doing well with his foster family, was bonded to the foster parents, and

had lived with them longer than with Father. The caseworker also testified that the foster family

met all of Z.M.M.’s needs and desired to formally adopt him. See In re J.D., 436 S.W.3d at 120

(“The stability of the proposed home environment is an important consideration in determining

whether termination of parental rights is in the child’s best interest.” (citation omitted)); In re

M.C.L., No. 04-17-00408-CV, 2017 WL 5759376, at *3 (Tex. App.—San Antonio Nov. 29, 2017,

no pet.) (“When a child is unable to express his desires, a fact finder may consider that he has

bonded with the foster family, is well cared for by them, and has spent minimal time with the

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parent.” (citation omitted)). Having reviewed the record, we hold the evidence is legally and

factually sufficient to support the trial court’s finding that termination is in Z.M.M.’s best interest.

CONCLUSION

We hold the evidence is legally insufficient to support the trial court’s finding that

termination of Father’s parental rights was warranted under section 161.001(b)(1)(D) of the Family

Code. However, we affirm the trial court’s termination order because we hold the evidence is

legally and factually sufficient to support the trial court’s findings in support of termination under

sections 161.001(b)(1)(O) and 161.001(b)(2) of the Family Code.

Rebeca C. Martinez, Justice

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