in the Interest of D.S.

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00286-CV
__________________

IN THE INTEREST OF D.S.

__________________________________________________________________

On Appeal from the 279th District Court
Jefferson County, Texas
Trial Cause No. F-235,209
__________________________________________________________________

MEMORANDUM OPINION

This is a parental rights termination case. Following a trial to the bench, the

trial court terminated the parental relationship between Danielle and her biological

parents, Mother and Father. 1 As to Father, the record shows the trial court terminated

Father’s rights after he signed an affidavit stating that he agreed to relinquish them.

After the trial court signed the judgment, Father did not appeal. Mother, however,

has appealed each finding the trial court relied upon to terminate her rights. As to

1
To protect the privacy of the child whose rights are at issue in the appeal, we
have not used the child’s name or those of her parents. Instead, we use Danielle for
the child, and Mother and Father for her parents. See Tex. R. App. P. 9.8 (Protection
of Minor’s Identity in Parental-Rights Termination Cases).
1
the findings that are relevant to this Court’s resolution of Mother’s appeal, the trial

court found that Mother (1) knowingly allowed Danielle to remain in conditions or

surroundings that endangered her physical or emotional well-being, (2) engaged in

conduct or knowingly placed Danielle with persons who endangered her physical or

emotional well-being, and (3) terminated Mother’s rights to Danielle because

terminating them is in Danielle’s best interest. 2

On appeal, Mother filed a brief in which she raises five issues. Three of

Mother’s issues—issues one, two and five—are dispositive of Mother’s appeal.3 In

these three issues, Mother argues (1) the evidence is insufficient to show she

knowingly placed or allowed Danielle to remain in conditions or surroundings that

endangered her physical or emotional well-being, (2) the evidence is insufficient to

support the trial court’s finding that she engaged in conduct or knowingly placed

Danielle with persons who engaged in conduct that endangered her physical or

emotional well-being, and (3) the evidence is insufficient to support the trial court’s

best-interest finding.4 Because issues one, two and five lack merit, we need not reach

issues three and four. So as explained below, we will affirm.

2
See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (b)(2). To shorten the
opinion, all subsequent references to these two subsections are identified by
shortening the references to either subsection D or E.
3
See Tex. R. App. P. 47.1.
4
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (b)(2).
2
 Standard of Review

Mother argues the evidence is legally and factually insufficient to support the

trial court’s findings terminating her parental rights. Under legal sufficiency review,

we review “all the evidence in the light most favorable to the finding to determine

whether a reasonable trier of fact could have formed a firm belief or conviction that

its finding was true.” 5 We assume that the factfinder resolved disputed facts in favor

of its finding if a reasonable factfinder could have done so, and we disregard all

evidence that reasonable factfinders could have disbelieved or found to have been

incredible. 6 If no reasonable factfinder could form a firm belief or conviction that

the matter the Department needed to prove to support the trial court’s judgment is

true, the evidence is legally insufficient.7

Under factual sufficiency review, we must determine whether the evidence is

such that a factfinder could reasonably form a firm belief or conviction about the

truth of the Department’s allegations.8 We give due consideration to the evidence

the factfinder could reasonably have found to be clear and convincing.9 We consider

whether the disputed evidence is such that a reasonable factfinder could not have

5
In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
6
Id.
7
Id.
8
Id.
9
Id.
3
resolved that disputed evidence in a manner favoring its ruling.10 If, in light of the

entire record, the disputed evidence that a reasonable factfinder could not have

credited in favor of its findings is so significant that no reasonable factfinder could

have formed a firm belief or conviction about the truth of the matter the Department

alleged, we will conclude the evidence is insufficient and order a new trial. 11

In issues one and two, Mother argues the evidence is insufficient to support

the trial court’s findings to terminate her rights under subsections D and E of the

Family Code.12 Under subsection D, the Department had the burden to prove that

Mother knowingly placed or allowed Danielle to remain in conditions or

surroundings that endangered her physical or emotion well-being.13 While

subsection D and E are similar, they are not identical. Under subsection E, the

Department had the burden to prove that Mother engaged in conduct or knowingly

placed Danielle in conditions or surrounding that endangered her well-being.14

Under both sections, the Department must prove its claims by clear and convincing

evidence to obtain a finding that a child’s parent violated subsection D or E.15 Under

the Family Code, clear and convincing evidence means proof sufficient to “produce

10
Id.
11
Id.
12
Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E).
13
Id. § 161.001(b)(1)(D).
14
Id. § 161.001(b)(1)(E).
15
Id. § 161.001(b).
4
in the mind of the trier of fact a firm belief or conviction as to the truth of the

allegations sought to be established.”16

The difference between subsections D and E is subtle. Under subsection D,

the Department needed to prove that Mother knowingly engaged in the conduct that

it alleged violated subsection D.17 Unlike subsection D, subsection E does not

require the Department to prove the parent knowingly engaged in the alleged

conduct; instead, evidence proving a violation of subsection E requires the

Department to prove the alleged conduct endangered the child, regardless of whether

the evidence shows the parent knowingly committed the endangering conduct.18

Under either section, the Department need not prove the child’s parent caused

an actual physical injury to her child to prove a claim alleging the parent’s conduct

endangered the child. Under the Family Code, the Texas Supreme Court has

explained that the word endangerment under subsections D and E means exposure

to loss or injury sufficient to jeopardize a child’s physical or emotional well-being.19

Thus, because no actual physical injury is required to prove endangerment under

subsections D and E, the factfinder in a case alleging the subsections were violated

has free rein to consider any testimony admitted in the trial showing that a parent’s

16
Id. § 101.007.
17
Id. § 161.001(b)(1)(D).
18
Compare id. § 161.001(b)(1)(D), with § 161.001(b)(1)(E).
19
See Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
5
conduct exposed the parent’s child to loss or injury when deciding whether the

conduct endangered the child’s well-being.20

Evidence of Endangerment

A parent’s use of an illegal substance is evidence relevant to whether the

parent created an environment sufficient to endanger a child’s physical or emotional

well-being.21 In the past, we have explained that under subsections D and E “[t]he

factfinder may infer from past conduct endangering the child’s well-being that

similar conduct will recur if the child is returned to the parent.” 22 Even when the

evidence of the parent’s illegal drug use occurred before the child was born, that

evidence, when coupled with evidence showing the parent continued to use illegal

20
See In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009) (“It necessarily follows
that the endangering conduct may include the parent’s actions before the child’s
birth, while the parent had custody of older children, including evidence of drug
usage.”); In re J.L.B., 349 S.W.3d 836, 848 (Tex. App.—Texarkana 2011, no pet.)
(“Drug use and its effect on a parent’s life and [the parent’s] ability to parent may
establish an endangering course of conduct.”); In re S.N., 272 S.W.3d 45, 52 (Tex.
App.—Waco 2008, no pet.) (“Evidence of illegal drug use or alcohol abuse by a
parent is often cited as conduct which will support an affirmative finding that the
parent has engaged in a course of conduct which has the effect of endangering the
child.”); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.)
(“Parental and caregiver illegal drug use and drug-related criminal activity likewise
supports the conclusion that the children’s surroundings endanger their physical or
emotional well-being.”).
21
In the Interest of L.J., No. 09-20-00043-CV, 2020 Tex. App. LEXIS 5387,
at *11 (Tex. App.—Beaumont July 16, 2020, no pet.); In re J.T.G., 121 S.W.3d at
125.
22
In the Interest of M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth
2009, no pet.).
6
substances after the child was born is evidence that a factfinder may consider in

deciding whether a parent’s drug-related conduct endangered the parent’s child.23

Certainly evidence proving that a parent continued to use illegal drugs and could not

quit using them is evidence on which a reasonable factfinder may rely to support its

conclusion that the parent “poses a present and future risk of physical or emotional

danger to [her] child.” 24

In large part, the Department’s claims seeking an order terminating Mother’s

parental rights hinge on the evidence in the trial that shows Mother has an

approximate thirteen-year history of abusing meth. To be fair, some of Mother’s

use—around one year—occurred shortly before Danielle was born. In addition to

Mother’s thirteen-year history of using meth, the trial court also heard evidence

showing that Mother (despite the assistance and guidance of the Department) has

not overcome her inability to control her desire to use that drug.25

On appeal, Mother argues the evidence shows she completed a substance

abuse program, has stopped using meth, and has acquired the skills she needs to

control her use of meth. But Mother overlooks the evidence that allowed the trial

court to disbelieve the arguments claiming that since completing a drug rehab

23
In re J.O.A., 283 S.W.3d at 345.
24
See In the Interest of X.L., No. 09-20-00195-CV, 2020 Tex. App. LEXIS
9640, at *11 (Tex. App.—Beaumont Dec. 10, 2020, pet. denied).
25
Id.
7
program, she no longer uses meth. The trial court heard testimony showing that the

Department opened an investigation into Danielle’s case when Mother and Mother’s

adult daughter were stopped in a car while they were travelling together in an

adjacent county. After the officer stopped the car, he learned Mother and her adult

daughter had drug paraphernalia in the car, including two pipes like those used to

smoke meth. The officer also learned the women had several children who were

living in a hotel room in Jefferson County. After receiving a report that Danielle was

not being properly supervised, the Department opened an investigation to determine

whether the children in the hotel room were okay. The Department filed an

emergency petition in the trial court and asked that it allow the Department to take

possession of the children who were found in the hotel, including Danielle.

After removing the children from their mothers, Mother submitted hairs to be

tested for drugs. The record shows that Mother tested positive for meth on her initial

hair follicle test, which was performed in June 2019. Mother then tested positive

again for meth on urine tests, which she took in September and October 2019.

Mother submitted to additional drug tests in November 2020 during the trial. The

reporter’s record shows the trial court discussed the results of these tests with the

parties before it ruled on the case and that when it ruled, it relied on the results of

both tests, both of which were positive for meth. During the trial, however, the

8
Department failed to formally introduce the lab results from the November 2020

tests into the evidence that was admitted in the trial. 26

That said, not all of Mother’s drug tests were positive. The record reflects

Mother tested negative for meth in November 2019 after enrolling in a drug

treatment program in Indiana, where she was living at that time. Mother moved to

Indiana in November 2019 because, according to Mother, she needed to care for

other relatives who lived there. The drug treatment program in which Mother

enrolled was a plan required by Mother’s family service plan. Some, but not all, of

Mother’s medical records from the drug rehab program were admitted into evidence

at the trial.27 The records Mother made available to the parties show that when

26
On appeal, Mother argues the test results should not be considered as being
within our scope of review because the Department never asked the trial court to
admit the results of the tests into evidence in the trial. But while the Department
never formally introduced the record showing the results of the tests, the record also
shows the trial court displayed the test results while the parties were in court and on
appeal, Mother has not argued the trial court erred by considering the results of these
tests.
When the record from a trial shows the parties and the trial court relied on
evidence even though the evidence was never formally introduced, the “evidence is,
for all practical purposes, admitted.” Sanchez v. Bexar Cty. Sherriff’s Dep’t, 134
S.W.3d 202, 203 (Tex. 2004) (per curiam). We conclude the results of Mother’s
urine and hair follicle tests that show Mother tested positive for meth during the trial
were, for all practical purposes, admitted into evidence in the trial. Accordingly, the
fact Mother tested positive for meth on these tests is evidence that we must consider
when addressing Mother’s complaints that the evidence is insufficient to support the
finding that she engaged in conduct that endangered Danielle.
27
The authorization that Mother signed releasing her medical records from the
drug treatment program in which she enrolled while in Indiana shows that she did
not authorize the facility to release all her records.
9
Mother was first admitted into the drug treatment program, she was diagnosed with

“Amphetamine-type substance use disorder, severe[.]” Mother took four drug tests

that are in the records that were before the trial court while she was enrolled in the

drug-treatment program, two performed on urine and two performed on hairs. The

urine tests, which were based on samples taken in February 2020 and in April 2020,

are negative for amphetamines and meth. The hair follicle tests, which were based

on samples taken in May and September 2020, are also both negative for

amphetamines and meth.

The caseworker assigned to handle Danielle’s case cast doubt on the validity

of the drug tests Mother took while living in Indiana. According to the caseworker,

the tests Mother provided to the trial court that were performed while she was living

in Indiana were neither random nor observed. Along with the fact that Mother did

not release all of her records from her drug-treatment program, the trial court could

have reasonably relied on the caseworker’s testimony and doubted the reliability of

the results from those tests.

A parent’s persistent and continued use of an illegal drug exposes a child

being raised by that parent to the possibility the parent may either be imprisoned or

impaired.28 Generally speaking, evidence showing a persistent and continued use of

See Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 608,
28

617-18 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also In re J.O.A.,
283 S.W.3d at 345.
10
a controlled substance is evidence that supports a reasonable inference that the

parent’s conduct has affected the physical or emotional well-being of the parent’s

child. When, as here, the testimony demonstrates a parent continued to use illegal

drugs even though faced with the loss of his or her parental rights, the factfinder may

infer the conduct represents a voluntary, deliberate, and conscious course of action

that, by its very nature, endangered the well-being of the parent’s child.29

In the end, when viewed in the light favoring the verdict, the evidence allowed

the trial court to infer that Mother has not conquered her desire to use meth. Here,

the trial court had the right to weigh Mother’s more than decade-long history of

abusing meth against evidence showing that Mother, only recently, had obtained

treatment in an effort to gain the skills she needs to discontinue using the drug. The

evidence, however, also allowed the trial court to conclude that Mother has not

obtained control over her desire to use meth even after she completed a drug-rehab

program. When viewed as a whole, the evidence shows the trial court, acting

reasonably, could form a firm belief or conviction that Mother has an ongoing and

severe substance abuse problem connected to meth. 30 The trial court also could

29
See Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221
S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (upholding
termination based on parent’s continued use of drugs).
30
See In re J.O.A., 283 S.W.3d at 346.
11
reasonably reject Mother’s claim that she had acquired the skills she needed to

control her desire to use the drug. 31

We conclude the record contains legally and factually sufficient evidence to

support the trial court’s conclusion that Mother has an ongoing substance problem

that she cannot yet control. Given the evidence of Mother’s persistent and continued

use of meth, we conclude the Department met its burden to prove that Mother

knowingly engaged in a course of conduct by using and continuing to use an illegal

substance that endangered Danielle’s physical or emotional well-being.

Accordingly, we find that Mother’s first and second issues challenging the trial

court’s subsection D and E findings lack merit. 32 Accordingly, Mother’s first two

issues are overruled.

Best-Interest

In issue five, Mother argues the evidence is legally and factually insufficient

to support the trial court’s best-interest finding. 33 When evaluating a challenge to a

factfinder’s best-interest finding, we note that a “strong presumption that the best

interest of a child is served by keeping the child with a parent.”34 We also presume

31
See In re J.F.C., 96 S.W.3d at 266.
32
See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E); In re J.T.G., 121 S.W.3d
at 125.
Tex. Fam. Code Ann. § 161.001(b)(2).
33

In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); see Tex. Fam. Code Ann. §
34

153.131.
12
that a prompt and permanent placement of the parent’s child in a safe environment

is in the child’s best interest.35 In our review of best-interest findings, we consider

the nine non-exhaustive factors that the Texas Supreme Court identified in Holly.36

In November 2020 when the case went to trial, Danielle was twelve years old.

Although Danielle did not testify at the trial, every witness who testified told the trial

court they were aware that Danielle wanted to live with Mother. The evidence

reflects that Danielle and Mother have a strong bond. Yet, against those factors that

weigh in Mother’s favor, the trial court had to consider evidence that Mother has a

thirteen-year history of using meth. There is also evidence that allowed the trial court

to conclude that Mother chose to continue to use meth even after the Department

35
Tex. Fam. Code Ann. § 263.307(a).
36
In Holley v. Adams, the Texas Supreme Court applied the following factors
when it reviewed the trial court’s best-interest finding:

• the child’s desires;
• the child’s emotional and physical needs, now and in the future;
• the emotional and physical danger to the child, now and in the future;
• the parenting abilities of the parties seeking custody;
• the programs available to assist the parties seeking custody;
• the plans for the child by the parties seeking custody;
• the stability of the home or the proposed placement;
• the parent’s acts or omissions which may indicate that the existing parent-
child relationship is improper;
• any excuse for the parent’s acts or omissions.

544 S.W.2d 367, 371-72 (Tex. 1976); see also Tex. Fam. Code Ann. § 263.307(b).

13
removed Danielle from her in June 2019. The evidence showing the extent of

Mother’s drug problem shows that the problem has been persistent. Mother tested

positive for meth after, according to Mother, she was drug free and claimed she had

acquired the skills she needed to control her desire for the drug. Additionally, Mother

did not enroll in a drug treatment program until six months after the Department

removed Danielle from her care. Along with the evidence relevant to Mother’s abuse

of meth, the trial court also heard testimony that shows Mother never completed a

parenting class that the Department had approved.

During the trial, the Department called the caseworker who handled

Danielle’s case. The caseworker testified she believed it would be in Danielle’s best

interest for the trial court to terminate Mother’s parental rights. The caseworker also

discussed the plans the Department had for Danielle. According to the caseworker,

there is a family who is willing to take care of Danielle and to provide her with “a

forever home” if the trial court terminated Mother’s and Father’s rights. The

caseworker described Mother’s lifestyle as transient, explaining that Mother moved

multiple times after Danielle was born. Over the past ten years, according to the

caseworker, Mother has lived in four states. The caseworker expressed her opinion

that Mother has not provided Danielle with a stable home. In June 2019, when the

Department took Danielle into its care, Mother was living in a hotel room. Mother

moved to Indiana several months later, explaining that she moved there to take care

14
of her brother after he overdosed on drugs. While living in Indiana, Mother stayed

with several of her relatives, in other words, they provided her with only a temporary

home. When the case was called for trial in November 2020, Mother was living in a

hotel room in Houston. While Mother claimed she could afford to live in a house

and that’s what she was planning to do with Danielle, Mother never provided the

trial court with financial records to support her claims that she is currently earning

money from a job or has the financial ability to provide Danielle with a safe and

stable home.

Turning to Mother’s ability to earn money, the record does not show that

Mother demonstrated an ability to retain and maintain stable employment after the

Department discovered Danielle in a local hotel. While Mother testified she is

earning income restoring furniture, Mother never offered any documents into

evidence supporting that claim. During the trial, Mother also agreed she last worked

in a full-time capacity in 2018. And while Mother testified she is currently living on

her savings, she also testified she has savings of only several hundred dollars and

that members of her family supported her after the trial court placed Danielle in the

Department’s care.

A representative from CASA advised the trial court that CASA believed it

was in Danielle’s best interest for the court to return Danielle to Mother, pending the

15
outcome of the drug testing Mother submitted to during the trial.37 Mother also

testified she thought it was in Danielle’s best interest for Danielle to be returned to

her. But as the factfinder, the testimony showing that Mother loves Danielle and has

a strong bond with her as well as the testimony of other witnesses about what they

believed is in Danielle’s best interest was not binding on the trial court given the trial

court’s role to act as the finder of facts in the trial.

Deferring to the trial court’s role as factfinder, we conclude the record

contains legally and factually sufficient evidence to support the trial court’s finding

that terminating Mother’s rights is in Danielle’s best interest. 38 Because Mother’s

fifth issue also lacks merit, it is overruled.

Conclusion

We need not address issues three and four to dispose of Mother’s appeal. Even

if Mother prevailed on issue three and four, a ruling in her favor on those two issues

would not alter the outcome of her appeal.39 Because the issues that are dispositive

37
The CASA representative who appeared did not testify, but instead made the
above representation about CASA’s position to the trial court when it asked those
present about their claims.
38
See In re M.R., 243 S.W.3d 807, 821 (Tex. App.—Fort Worth 2007, no pet.)
(explaining that a parent’s history of drug use is relevant to the trial court’s best-
interest finding); Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907
S.W.2d 81, 86 (Tex. App.—Dallas 1995, no writ) (allowing a factfinder to give
significant weight to a parent’s drug-related conduct in making a best-interest
finding).
39
Tex. R. App. P. 47.1.
16
of Mother’s appeal–issues one, two, and five–lack merit, the trial court’s judgment

is

AFFIRMED.

_________________________
HOLLIS HORTON
Justice

Submitted on March 25, 2021
Opinion Delivered May 27, 2021

Before Golemon, C.J., Horton and Johnson, JJ.

17