in the Interest of L.E., Z.S.A.-F. AKA Z.A., and K.A., Children

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-19-00317-CV

IN THE INTEREST OF L.E., Z.S.A.-F. AKA Z.A., AND K.A., CHILDREN

On Appeal from the 242nd District Court
Hale County, Texas
Trial Court No. B41701-1708; Honorable Kregg Hukill, Presiding

January 3, 2020

MEMORANDUM OPINION
Before PIRTLE, PARKER, and DOSS, JJ.

Appellant, the thirty-nine-year-old mother of eight-year-old L.E., six-year-old

Z.S.A.-F., and five-year-old K.A., appeals from the trial court’s order terminating her

parental rights to her three children.1 She challenges the trial court’s order through five

issues, three challenging the sufficiency of the evidence to support the trial court’s

findings under the predicate grounds, one challenging the sufficiency of the evidence to

1 To protect the privacy of the parties involved, we refer to the mother as “the mother” and to the

children by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2019); TEX. R. APP. P. 9.8(b).
The parental rights of the fathers of Z.S.A.-F and K.A. were also terminated in this proceeding. They have
not filed a notice of appeal. The hearing regarding the parental rights of L.E.’s father was continued to a
future date and his rights are not at issue in this appeal.
support the trial court’s finding that termination was in the children’s best interests, and

one arguing the trial court abused its discretion by refusing to extend the dismissal date

in this case. We affirm the order of the trial court.

BACKGROUND

In July 2017, the Texas Department of Family and Protective Services received a

report concerning domestic violence between the mother and her boyfriend. Both

admitted to long-term domestic violence and illicit drug use. At the time of the final

hearing, L.E. was placed in one foster home and Z.S.A.-F. and K.A. were placed together

in another.

After receiving the report, the Department filed pleadings including an original

petition for protection of a child, for conservatorship, and for termination in suit affecting

the parent-child relationship and obtained an order for protection of a child in an

emergency. A service plan that included tasks the mother was required to perform to

secure the return of her children to her care was also put in place. The mother completed

some of the services and a monitored return service plan was given to the mother in

January 2019. The monitored placement was disrupted when the mother tested positive

for cocaine about a month after the children were returned to her care. The mother denied

use but did not appear for a test in March 2019. A week later, the mother tested positive

for alcohol. The children were removed and the next day, the mother was arrested for an

alleged assault that took place in public while she was intoxicated. The Department

requested additional services for the mother, but the mother failed to attend the required

drug and alcohol assessment and only attended one counseling session.

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 A final hearing was held in August 2019, just days before the statutory deadline

was to expire.2 At the outset of the hearing, counsel for the mother asked the court for a

continuance to allow the mother to complete the SAFP program that was part of the

Department plan as well as the terms of the community supervision imposed by another

court. The trial court denied that request. At the final hearing, the Department presented

three witnesses to provide evidence to support its alleged grounds for termination of the

mother’s parental rights. Most significant of that evidence was evidence of the mother’s

drug and alcohol use.

After hearing the evidence presented and the arguments of counsel, the trial court

found clear and convincing evidence supported termination of the mother’s parental rights

to her three children under Family Code section 161.001(b)(1) (D), (E), and (O). See TEX.

FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O) (West Supp. 2019). It also found clear and

convincing evidence to support a finding that termination was in the children’s best

interests. TEX. FAM. CODE ANN. § 161.001(b)(2).

ANALYSIS

APPLICABLE LAW

The Texas Family Code permits a court to terminate the parent-child relationship

if the Department establishes one or more acts or omissions enumerated under section

161.001(b)(1) and termination of that relationship is in the child’s best interest. See TEX.

FAM. CODE ANN. § 161.001(b)(1), (2). See also Holley v. Adams, 544 S.W.2d 367, 370

(Tex. 1976). The burden of proof is by clear and convincing evidence. TEX. FAM. CODE

2 See TEX. FAM. CODE ANN. § 263.401 (West 2019) (providing for dismissal after one year and
requirements to obtain extension of time).

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ANN. § 161.206(a-1) (West Supp. 2019). “‘Clear and convincing evidence’ means 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.” TEX. FAM. CODE

ANN. § 101.007 (West 2019).

Only one statutory ground is needed to support termination. In re K.C.B., 280

S.W.3d 888, 894-95 (Tex. App.—Amarillo 2009, pet. denied). Notwithstanding this point,

the Texas Supreme Court has recently instructed appellate courts that due process

requires a heightened standard of review under section 161.001(b)(1)(D) or (E), even

when another ground for termination is sufficient, because of the potential collateral

consequences to an appellant’s parental rights concerning another child. See In re N.G.,

577 S.W.3d 230, 237 (Tex. 2019) (per curiam). The Court held that because section

161.001(b)(1)(M) provides for the termination of parental rights if there is clear and

convincing evidence that the parent has had his or her parental rights terminated with

respect to another child based on a finding that his or her conduct violated subsection (D)

or (E), an appellate court denies an appellant a “meaningful appeal and eliminates the

parent’s only chance for review of a finding that will be binding as to parental rights to

other children” if that court does not review a termination based upon either of those

subsections. Id. at 235 (citing In re S.K.A., 236 S.W.3d 875, 890 (Tex. App.—Texarkana

2007, pet. denied)).

Furthermore, in addition to a finding on the predicate grounds for termination, the

trial court must also find that termination is in the children’s best interests. Id. In reviewing

a termination proceeding, the standard for sufficiency of evidence is that discussed in In

re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). In reviewing a best interest finding,

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appellate courts consider, among other evidence, the factors set forth in Holley, 544

S.W.2d at 371-72.

Subsection (D) permits termination when clear and convincing evidence shows

that 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. See TEX.

FAM. CODE ANN. § 161.001(b)(1)(D). This subsection requires a showing that the

environment in which the child was placed posed a danger to the child’s physical or

emotional health, and it permits termination based on a single act or omission by the

parent. In re J.A.S., No. 07-12-00150-CV, 2012 Tex. App. LEXIS 8087, at *14 (Tex.

App.—Amarillo Sept. 25, 2012, no pet.) (mem. op.) (citing In re R.D., 955 S.W.2d 364,

367 (Tex. App.—San Antonio 1997, pet. denied)). Subsection (D) concerns the child’s

living environment, rather than the parent’s conduct, though parental conduct may

produce an endangering environment. Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). It is not necessary that the child’s living

environment directly threaten the child or that the child be injured. What is significant is

that the parent must be aware of the potential for danger to the child in such an

environment and must have disregarded that risk. In re S.M.L., 171 S.W.3d 472, 477

(Tex. App.—Houston [14th Dist.] 2005, no pet.). Illegal drug use and criminal activity

support a conclusion that the child’s surroundings endanger his or her physical or

emotional well-being. In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003,

no pet.). The relevant time frame under this subsection is prior to the child’s removal. In

re O.R.F., 417 S.W.3d 24, 37 (Tex. App.—Texarkana 2013, pet. denied).

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 Subsection (E) permits termination when clear and convincing evidence shows

that the parent has engaged in conduct or knowingly placed the child with persons who

engaged in conduct which endangers the child's physical or emotional well-being. See

TEX. FAM. CODE ANN. § 161.001(b)(1)(E). The relevant inquiry here is whether evidence

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

result of the parent’s conduct, including acts, omissions, and failures to act. In re J.T.G.,

121 S.W.3d at 125. Termination under subsection (E) must be based on more than a

single act or omission. Id. A voluntary, deliberate, and conscious course of conduct by

a parent is required. Id. Thus, while both subsections (D) and (E) focus on

endangerment, they differ regarding the source and proof of endangerment. In re S.M.L.,

171 S.W.3d at 477. To support a finding of endangerment, the parent’s conduct does not

necessarily have to be directed at the child nor is the child required to suffer actual injury.

Texas Dep’t of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987) (reversing

appellate court’s holding that father's imprisonment did not endanger the emotional and

physical well-being of a child).

SUFFICIENCY OF EVIDENCE TO SUPPORT PREDICATE GROUNDS

Here, the mother testified at the final hearing, admitting to her drug and alcohol

use. She also admitted to instances of domestic violence and other issues with her

boyfriend. She admitted her boyfriend assaulted her by “backhand[ing] me in my mouth”

after the children were removed from her care a second time. She also told the court she

used drugs and alcohol during the pendency of the case as a way of grieving for her son

who died while in foster care. Domestic violence and drug use are circumstances a trial

court can consider as endangering a child under subsection (D) and (E). In re K.A.F., No.

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05-12-01582-CV, 2013 Tex. App. LEXIS 7350, at *33-34 (Tex. App.—Dallas June 14,

2013, no pet.) (mem. op.).

The mother further told the court she had been placed on community supervision

and that one of the terms of her supervision was her temporary confinement in a SAFP

facility. She acknowledged she would spend approximately six months in that program

and likely two to three additional months at a halfway house. Many courts have noted

that a parent’s ongoing drug use is conduct that subjects a child to a life of uncertainty

and instability, which endangers the physical and emotional well-being of the child. See

In re K.A.S., No. 07-12-00234-CV, 2012 Tex. App. LEXIS 8725, at *16-17 (Tex. App.—

Amarillo Oct. 18, 2012, no pet.) (mem. op.); In re A.B., 125 S.W.3d 769, 777 (Tex. App.—

Texarkana 2003, pet. denied) (“Drug use and its effect on a parent’s life and ability to

parent may establish an endangering course of conduct.”). “A parent’s continued drug

use demonstrates an inability to provide for the child’s emotional and physical needs and

to provide a stable environment for the child.” In re E.M., 494 S.W.3d 209, 222 (Tex.

App.—Waco 2015, pet. denied) (citing In re F.A.R., No. 11-04-00014-CV, 2005 Tex. App.

LEXIS 234, at *4 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem. op.)). In this case,

the trial court could have been persuaded that the mother’s drug use and history of

domestic violence was sufficient to establish the predicate grounds set forth under

sections 161.001(b)(1)(D) and (E) of the Texas Family Code.

Additionally, the trial court could have seen the mother’s failure to complete

additional requirements of her service plan as part of the endangering conduct analysis

under subsection (E). In re X.S., No. 07-17-00422-CV, 2018 Tex. App. LEXIS, at *9-10

(Tex. App.—Amarillo April 18, 2018, no pet.) (mem. op.); Robinson v. Tex. Dep’t of

7
Protective & Regulatory Servs., 89 S.W.3d 679, 686-87 (Tex. App.—Houston [1st Dist.]

2002, no pet.). A Department caseworker, Samantha Yancey, testified the children were

removed due to concerns over domestic violence and drug use by the mother and her

boyfriend. Yancey told the court that the mother’s oldest child unexpectedly passed away

during the pendency of the case. The Department offered to the mother grief counseling

to help her cope with the loss. After the mother had made sufficient progress, the children

were returned to her care under a monitored plan. As part of that plan, the mother was

subject to four continuing required services. She was required to comply with the terms

of her community supervision, to maintain employment, to maintain appropriate housing,

and to submit to random drug tests. The caseworker testified the mother tested positive

for cocaine on February 21, 2019. The mother failed to appear for subsequent tests;

however, she did appear for the tests on March 14. This time the laboratory also tested

the sample to ascertain the mother’s blood alcohol level.

Yancy testified that after the positive tests for cocaine and alcohol use and the

mother’s admission that she had used both, the Department added requirements to her

reunification plan. Those additional requirements included her submission to a new drug

and alcohol assessment, re-engagement in individual counseling, and following

recommendations from either of those services. Yancey told the court the mother missed

one appointment for the drug and alcohol assessment and failed to schedule another and

that she attended one individual counseling session after the children were removed from

her care under the monitored plan. From Yancey’s testimony, the trial court could have

found sufficient evidence to support a finding that the mother’s rights should be terminated

under section 161.001(b)(1)(D) and (E).

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 The trial court also had before it the testimony of Sharon Hensley, a licensed

professional counselor who engaged in therapy with Z.F.A.-F. and K.A. She testified that

the boys told her their mother fought with other people. They told her about their

grandmother being mad at their mother and fighting and “bad words from everybody.

Uncle V. using the middle finger at Mom . . . .” After K.A. called his foster mother a

“motherf**king b*tch,” Hensley asked him where he heard those words. He responded

that his “mother yelled them at the police.” Hensley told the court that “the trauma [the

boys] described to me is damaging.” This again is evidence from which the trial court

could have found the mother engaged in endangering behavior or conduct or placed her

children in endangering circumstances.

Viewing the evidence before us as a whole under the requisite standards, we find

sufficient clear and convincing evidence to support the trial court’s finding that the mother

engaged in conduct or knowingly placed the children with persons who engaged in

conduct which endangered the physical or emotional well-being of her children.

Accordingly, we overrule the mother’s first three issues.

BEST INTEREST

In addition to the finding of at least one predicate ground for termination, the

Department was also required to prove by clear and convincing evidence that termination

of the mother’s rights was in her children’s best interests. TEX. FAM. CODE ANN. §

161.001(b)(2); In re K.M.L., 443 S.W.3d at 116. Only if no reasonable fact finder could

have formed a firm belief or conviction that termination of the mother’s parental rights was

9
in the children’s best interests can we conclude the evidence is insufficient. Id. (citing In

re J.F.C., 96 S.W.3d at 266).

In our evaluation of a child’s best interest, there is a strong presumption that the

best interest of the child will be served by preserving the parent-child relationship. In re

R.R., 209 S.W.3d 112, 116 (Tex. 2006). Prompt and permanent placement of the child

in a safe environment is also presumed to be in the child’s best interest. See TEX. FAM.

CODE ANN. § 263.307(a) (West 2019). Section 263.307(b) provides a non-exhaustive list

of factors to consider in deciding best interest. Similarly, the Supreme Court has set out

other factors to consider when determining the best interest of a child. See Holley, 544

S.W.2d at 371-72. Those factors 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 individual seeking

custody; (5) the programs available to assist the individual to promote the best interest of

the child; (6) the plans for the child by the individual 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. Importantly, the absence of

evidence about one or more of these considerations does not preclude a fact finder from

reasonably forming a strong conviction or belief that termination is in the child’s best

interest. In re C.H., 89 S.W.3d at 27; In re A.C., 394 S.W.3d 633, 642 (Tex. App.—

Houston [1st Dist.] 2012, no pet.).

Evidence that supports one or more statutory grounds for termination may also

constitute evidence illustrating that termination is in the child’s best interest. See In re

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C.H., 89 S.W.3d at 28. See also In re E.C.R., 402 S.W.3d 239, 249-50 (Tex. 2013). The

best interest analysis may consider circumstantial evidence, subjective factors, and the

totality of the evidence as well as direct evidence. See In re N.R.T., 338 S.W.3d 667, 677

(Tex. App.—Amarillo 2011, no pet.). Additionally, a child’s need for permanence through

the establishment of a “stable, permanent home” has been recognized as the paramount

consideration in determining best interest. See In re K.C., 219 S.W.3d 924, 931 (Tex.

App.—Dallas 2007, no pet.).

Significant here is the mother’s continued drug use, even after the monitored return

of her children, and her reliance on alcohol. Furthermore, the volatile relationship with

her boyfriend led to an unstable environment for her children.

The witnesses testified the children were bonded to their mother, that she loves

the children, and they love her. While the children indicated they wanted to live with their

mother, Hensley told the court the children “just wanted out of foster care.” The mother

attended her visits with her children and the visits went well; however, according to

Hensley, K.A.’s behavior was better when he had breaks from seeing his mother. Out of

the three children, K.A.’s behavior was the most problematic. He had been expelled from

school as a result of behavioral issues. The counselor testified Z.S.A.-F. and K.A. were

participating in trauma therapy due to the domestic violence they had seen.

The caseworker, Yancey, testified to the effects of the mother’s visitation with the

children on K.A. She said K.A. showed agitation after the visits and would engage in

inappropriate behavior such as “smear[ing] feces on the bathroom walls . . . curs[ing] at

the faster [sic] mother . . . and damag[ing] property.” She also told the court that K.A.

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“physically attacked me after a visit and we had to call the police on one occurrence. He

also attacked the police officer at that time. And it takes several days for him to kind of

reel things back in and get back to a normalcy.” Yancey said these behaviors were worse

after the children were removed the second time.

At the time of the final hearing, the Department was working toward placement of

all three children with Z.S.A.-F.’s paternal grandmother. She lived in Colorado and the

Department was waiting on approval from that state. The grandmother was wiling to

adopt all three children, even though L.E. and K.A. were not her biological grandchildren.

The caseworker and counselor told the court the children appeared excited about the

possibility of going to live with the grandmother. The mother, however, expressed some

concern because she said her children did not want to move so far away. And, the mother

was worried that L.E. and K.A. would be treated differently because they were not

biologically related to Z.S.A.-F.’s grandmother.

As for the mother’s plans, the record showed she completed many of her services,

was employed, and had suitable housing for the children. All she requested was

additional time to complete SAFP.

Both the attorney ad litem for the children and the mother’s attorney told the court

they did not recommend termination of the mother’s parental rights. The trial court noted

the statutory time period was about to expire and told the mother that extending that time

for nine to eighteen months was not just merely bending the rule, but “bending it a whole

lot.” The court went on to say that extending the case for that period of time was not, in

its opinion, “what the legislature intended.”

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 Despite some evidence to the contrary, viewing the evidence in the light most

favorable to the judgment for our legal-sufficiency analysis and all of the evidence equally

for our factual-sufficiency analysis, we are led to a conclusion that a reasonable fact finder

could have formed a firm belief or conviction that termination of the mother’s parental

rights was in the children’s best interests. See TEX. FAM. CODE ANN. § 161.001(b)(2).

REFUSAL OF COURT TO EXTEND DISMISSAL DATE

At the final hearing, counsel for the mother repeated the mother’s request that the

court extend the dismissal date for the case under section 263.401 of the Family Code.

TEX. FAM. CODE ANN. § 263.401. As grounds for that request, counsel reminded the court

that the mother had complied with her service plan, resulting in the return of her children

to her care. While the children were later removed when the mother relapsed, counsel

noted that she continued to participate in the court-ordered services in her reunification

plan. At the time of the final hearing, the mother was awaiting transport to a drug

treatment facility, something required by both her community supervison order and her

reunification plan. Counsel requested extension of the dismissal date to permit the

mother to complete her treatment.

This court reviews the trial court’s grant or denial of a motion pursuant to section

263.401 under an abuse of discretion standard. In re D.S., 455 S.W.3d 750, 751 (Tex.

App.—Amarillo 2015, no pet.); In re A.J.M., 375 S.W.3d 599, 604 (Tex. App.—Fort Worth

2012, pet. denied) (en banc). Under an abuse of discretion standard, an appellate court

may reverse the trial court’s ruling only if the trial court acted without reference to any

guiding rules and principles, such that its ruling is arbitrary and unreasonable. In re E.F.,

No. 07-18-00281-CV, 2018 Tex. App. LEXIS 8389, at *2 (Tex. App.—Amarillo Oct. 15,

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2018, pet. denied) (mem. op.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1985), 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986)).

Pursuant to section 263.401, a trial court must dismiss a suit brought by the

Department if trial has not commenced by the mandatory dismissal date unless an

extension has been granted under section 263.401(b). TEX. FAM. CODE ANN. § 263. 401.

The trial court is permitted to extend the dismissal deadline if the movant shows

“extraordinary circumstances necessitate the child remaining in the temporary managing

conservatorship of the department and that continuing the appointment of the department

as temporary managing conservator is in the best interest of the child.” In re E.F., 2018

Tex. App. LEXIS 8389, at *3 (citing TEX. FAM. CODE. ANN. § 263.401(b)). “The focus is on

the needs of the child, whether extraordinary circumstances necessitate the child

remaining in the temporary custody of the Department, and whether continuing such is in

the best interest of the child.” Id. (citing In re A.J.M., 375 S.W.3d at 604). Actions that

are “‘considered to be the parent’s fault’ will generally not constitute an extraordinary

circumstance.” Id. (citing In re O.R.F., 417 S.W.3d at 42). While a trial court has

discretion to grant an extension, the language in section 263.401 “prefers finality to suit.”

In re A.J.M., 375 S.W.3d at 605.

The record before us shows the trial court extended the dismissal date three times.

The first was on July 27, 2018, when it entered an order to retain the case pursuant to

section 263.401(b) of the Family Code. See TEX. FAM. CODE ANN. § 263.401(b). The

second was when it entered an order for a monitored placement of the children with the

mother pursuant to section 263.403(a) and (b) of the Family Code on January 25, 2019.

See TEX. FAM. CODE ANN. § 263.403(a), (b). The third occurred on March 5, 2019, when

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the trial court entered an order to return the children to foster care.3 See TEX. FAM. CODE

ANN. § 263.403(c).

Consequently, this case remained pending on the trial court’s docket for over two

years. During that time, the children were placed in foster care, returned to their mother’s

care, then re-removed after she again used cocaine and alcohol. By the time of the final

hearing, the mother had been arrested for assault and, as part of her court-ordered

community supervision, she was required to attend SAFP. The time during which she

would be in the program, followed by the time required for her to be in a halfway house,

and the time after her release that would be required for her to participate in services to

secure the return of her children, is significant. The mother’s request that the trial court

grant an extension of time under section 263.401 for an indeterminate period of time was

a request that the court extend the time for disposition well beyond what the Legislature

seemingly intended when it implemented those timelines. Furthermore, section 263.402

specifically precludes parties from extending deadlines by agreement. In re Dep’t of

Family & Protective Servs., 273 S.W.3d 637, 643 (2009) (citing TEX. FAM. CODE ANN. §

263.402). As such, the mother did not present any persuasive evidence that such an

indeterminate delay was in the best interests of her children. See, e.g., In re J.S.S., No.

10-19-00102-CV, 2019 Tex. App. LEXIS 8585, at *10 (Tex. App.—Waco Sept. 18, 2019,

no pet.) (mem. op.) (citing In re E.F., 2018 Tex. App. LEXIS 8389, at *4-5; In re L.T., No.

02-10-00094-CV, 2011 Tex. App. LEXIS 1313 (Tex. App.—Fort Worth Feb. 17, 2011, no

pet.) (mem. op.)).

3 The trial court signed a Nunc Pro Tunc Order Returning Children to Care on April 2, 2019, to
correct the omission in the March 2019 order of the new dismissal date and subsequent hearing dates.

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 We find the trial court did not abuse its discretion in denying the mother’s request

for an additional extension under section 263.401 and overrule the mother’s final issue.

CONCLUSION

Having resolved each of the mother’s issues against her, we affirm the order of the

trial court.

Patrick A. Pirtle
Justice

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