Opinion filed November 7, 2019
In The
Eleventh Court of Appeals
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No. 11-19-00186-CV
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IN THE INTEREST OF N.S., A CHILD
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 9055-CX
MEMORAND UM OPI NI ON
This is an appeal from an order in which the trial court terminated the parental
rights of N.S.’s mother and father. 1 The mother filed an appeal. On appeal, she
challenges the sufficiency of the evidence in each of her five issues. We affirm.
Termination Findings and Standards
The termination of parental rights must be supported by clear and convincing
evidence. TEX. FAM. CODE ANN. § 161.001(b) (West Supp. 2018). To terminate
parental rights, it must be shown by clear and convincing evidence that the parent
1
We note that the father voluntarily relinquished his parental rights.
has committed one of the acts listed in Section 161.001(b)(1)(A)–(U) and that
termination is in the best interest of the child. Id.
In this case, the trial court found that Appellant had committed four of the acts
listed in Section 161.001(b)(1)—those found in subsections (D), (E), (O), and (P).
Specifically, the trial court found that Appellant had knowingly placed or knowingly
allowed the child to remain in conditions or surroundings that endangered the child’s
physical or emotional well-being; that Appellant had engaged in conduct or
knowingly placed the child with persons who engaged in conduct that endangered
the child’s physical or emotional well-being; that Appellant had failed to comply
with the provisions of a court order that specifically established the actions necessary
for her to obtain the return of the child, who had been in the 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 Appellant for abuse or
neglect; and that Appellant had used a controlled substance in a manner that
endangered the child and either failed to complete a substance abuse treatment
program or abused a controlled substance after completing such a program. The trial
court also found, pursuant to Section 161.001(b)(2), that termination of Appellant’s
parental rights would be in the best interest of the child.
To determine if the evidence is legally sufficient in a parental termination case,
we review all of the evidence in the light most favorable to the finding and determine
whether a rational trier of fact could have formed a firm belief or conviction that its
finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). To determine if the
evidence is factually sufficient, we give due deference to the finding and determine
whether, on the entire record, a factfinder could reasonably form a firm belief or
conviction about the truth of the allegations against the parent. In re C.H., 89 S.W.3d
17, 25–26 (Tex. 2002).
2
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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, (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 that 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. Id.
Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
Background
The record shows that N.S. was four years old at the time of removal and five
years old at the time of the final hearing. In January 2018, the Department received
an intake regarding domestic violence and an intake regarding Appellant’s use of
methamphetamine. N.S.’s father was incarcerated at that time, and N.S. lived with
Appellant, Appellant’s boyfriend, and their three-month-old baby. Appellant and her
boyfriend had engaged in domestic violence while N.S. and the baby were present
at the home. The police were summoned based on the occurrence of domestic
violence, and Appellant, her boyfriend, and N.S. confirmed that domestic violence
had taken place in the home.
Although Appellant told the Department’s investigator that she had not used
methamphetamine since 2013, both Appellant and her three-month-old baby tested
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positive for methamphetamine during the Department’s January 2018 investigation.
The baby’s test results showed methamphetamine at the level of 10,987, a “very high
level.” Appellant’s level of methamphetamine was 1,619. N.S.’s drug screen was
negative at that time. The Department removed N.S. and the baby from Appellant’s
care. We note that Appellant’s parental rights with respect to the baby are not at
issue in this appeal and that the case involving the baby was severed from the case
involving N.S.
Appellant initially did well and fully engaged in her court-ordered services,
and N.S. and the baby were briefly returned to Appellant’s care. Approximately
three weeks into the monitored return, Appellant tested positive for
methamphetamine—this time at the level of 3,978. The children were again removed
from Appellant’s care. Three months later, Appellant tested positive for
methamphetamine at an even higher level—4,348. Appellant failed to complete
inpatient or outpatient drug treatment as ordered. We note that, at the time of the
final hearing, Appellant was again attempting inpatient treatment.
Appellant ultimately failed to maintain contact with the Department and, as a
result, did not submit to any drug tests during the six months prior to the final
hearing. Appellant also failed to abstain from criminal activity while the parental
termination case was pending in the trial court. During this time period, Appellant
was arrested for burglary of a habitation, criminal mischief, third-degree felony
possession of methamphetamine, and class A misdemeanor assault. The Department
called three police officers to testify about these offenses. An officer with the
Abilene Police Department testified that Appellant was arrested in December 2018
for possession of methamphetamine; three small bags of methamphetamine were
located in Appellant’s bra area. An officer with the Clyde Police Department
testified that Appellant broke into a house and assaulted a female, whose hand was
“bleeding profusely” as a result of the assault. An officer with the Abilene Police
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Department testified that, just a few weeks prior to the termination hearing,
Appellant assaulted an “older” man. At the time of the assault, Appellant was acting
aggressively and appeared to be under the influence. Appellant was arrested and
taken to jail; at the jail, an empty bag with white residue was found inside
Appellant’s bra.
The record reflects that, in addition to the offenses that she committed while
this case was pending, Appellant had other criminal history. She was convicted in
2013 of the offenses of possession of methamphetamine and endangering a child.
The child that Appellant was convicted of endangering was her son—N.S.’s older
brother—who, at the time of the proceedings involving N.S., had been adopted by
paternal relatives.
The caseworker testified that N.S. had been removed from Appellant three
times and that N.S. needed a more stable life. The caseworker believed that
termination of Appellant’s parental rights would be in N.S.’s best interest. N.S. had
been placed in a stable and loving home with paternal relatives, and N.S. was doing
well in their care. N.S. was happy and had adjusted well in the home of her aunt and
uncle, and the aunt and uncle wanted to adopt N.S.
Analysis
In her first, second, third, and fourth issues, Appellant challenges the legal and
factual sufficiency of the evidence to prove grounds (D), (E), (O), and (P),
respectively. We first address Appellant’s second issue—her challenge to the trial
court’s finding under Section 161.001(b)(1)(E). See In re N.G., 577 S.W.3d 230,
234–35 (Tex. 2019) (addressing due process and due course of law with respect to
appellate review of grounds (D) and (E) and holding that an appellate court must
provide a detailed analysis if affirming the termination on either of these grounds).
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s well-being was the direct result of the parent’s conduct,
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including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under subsection (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. In re D.T., 34 S.W.3d 625, 634 (Tex.
App.—Fort Worth 2000, pet. denied); In re K.M.M., 993 S.W.2d 225, 228 (Tex.
App.—Eastland 1999, no pet.). The offending conduct does not need to be directed
at the child, nor does the child actually have to suffer an injury. In re J.O.A., 283
S.W.3d 336, 345 (Tex. 2009). Drug use may constitute evidence of endangerment.
Id. Domestic violence and a propensity for violence may also constitute evidence
of endangerment. C.J.O., 325 S.W.3d at 265; In re C.E.K., 214 S.W.3d 492, 497
(Tex. App.—Dallas 2006, no pet.); In re J.I.T.P., 99 S.W.3d 841, 845 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). If a parent abused or neglected other children,
that conduct can be used to support a finding of endangerment. C.E.K., 214 S.W.3d
at 497.
Based upon the evidence that Appellant and her boyfriend engaged in
domestic violence in N.S.’s presence, that Appellant had a propensity for violence,
that Appellant used methamphetamine while her children were in her care, and that
Appellant exposed her baby to a high level of methamphetamine, the trial court could
have found by clear and convincing evidence that Appellant engaged in a course of
conduct that endangered N.S. Accordingly, we hold that the evidence is legally and
factually sufficient to uphold the trial court’s finding under subsection (E). We
overrule Appellant’s second issue. Because only one statutory ground is necessary
to support termination and because we have upheld the trial court’s finding under
subsection (E), we need not reach her first, third, or fourth issues. See FAM.
§ 161.001(b)(1); N.G., 577 S.W.3d at 234–35.
In her fifth issue, Appellant challenges the sufficiency of the evidence to
support the trial court’s finding that termination of Appellant’s parental rights was
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in the best interest of N.S. The record reflects that Appellant used methamphetamine
while N.S. was in her care and continued to use methamphetamine while this case
was pending, that Appellant failed to complete treatment for her methamphetamine
addiction (an addiction, according to Appellant, that she had struggled with since
she was twelve years old), that Appellant endangered her children by exposing them
to methamphetamine, that Appellant had been convicted of endangering N.S.’s older
brother, and that Appellant continued to engage in various criminal activity while
this case was pending.
The record also reflects that N.S. had been placed with a paternal aunt and
uncle in an appropriate home and that N.S. had improved and had done very well
there. The conservatorship caseworker believed that termination of Appellant’s
parental rights would be in N.S.’s best interest. Based upon the evidence presented
in this case, we defer to the trial court’s finding. See C.H., 89 S.W.3d at 27.
We hold that, based on the evidence presented at trial and the Holley factors,
the trial court could reasonably have formed a firm belief or conviction that
termination of Appellant’s parental rights would be in N.S.’s best interest. See
Holley, 544 S.W.2d at 371–72. Upon considering the record as it relates to N.S.’s
desires (which were not expressly mentioned at the hearing), the emotional and
physical needs of N.S. now and in the future, the emotional and physical danger to
N.S. now and in the future, the parental abilities of those involved, the plans for the
child by the Department, Appellant’s use of methamphetamine, Appellant’s other
criminal activity, and the stability of N.S.’s placement with her aunt and uncle, we
hold that the evidence is sufficient to support the finding that termination of
Appellant’s parental rights is in the best interest of N.S. See id. We cannot hold that
the finding as to best interest is not supported by clear and convincing evidence. We
overrule Appellant’s fifth issue on appeal.
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This Court’s Ruling
The order of the trial court is affirmed.
KEITH STRETCHER
JUSTICE
November 7, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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