S. S. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00695-CV

S. S., Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 296447, THE HONORABLE ALAN MAYFIELD, JUDGE PRESIDING

MEMORANDUM OPINION

S.S. (Mother) appeals from the trial court’s termination decree following a bench

trial.1 The trial court found that Mother knowingly placed or knowingly allowed her children to

remain in conditions or surroundings that endangered their physical or emotional well-being,

engaged in conduct or knowingly placed her children with persons who engaged in conduct that

endangered their physical or emotional well-being, and failed to comply with the provisions of

a court order that established the actions necessary for her to obtain the return of her children.

See Tex. Fam. Code § 161.001(b)(1)(D), (E), (O). The trial court also found that termination

of Mother’s parental rights to her four children was in the best interest of the children. Id.

§ 161.001(b)(2). On appeal, Mother challenges the legal and factual sufficiency of the evidence

1
To protect the children’s privacy, we will refer to them by pseudonyms and will refer to
family members by their relationships to the children. See Tex. Fam. Code § 109.002(d); Tex. R.
App. P. 9.8. Although the fathers’ parental rights were also terminated, they are not parties to
this appeal.
supporting the trial court’s best-interest determination and the finding that she failed to comply

with the provisions of a court order. We will affirm the trial court’s termination decree.

BACKGROUND

In September 2020, after receiving a complaint concerning Mother’s parenting in

this case, the Department of Family and Protective Services (“Department”) filed a suit affecting

the parent child-relationship between Mother and her three daughters E.B., A.M., and O.M.

and her son T.B. Mother had been appointed managing conservator of E.B. and T.B. in

December 2018, and the present suit sought to modify her status as managing conservator of

those two children and alternatively terminate her parental rights regarding all of the children.

The Department sought to be named as the children’s temporary managing conservator and

explained that it would seek termination of Mother’s parental rights if reunification could not be

achieved. In October 2020, the Department was appointed as the children’s temporary managing

conservator. During its investigation, the Department ultimately recommended that Mother’s

parental rights be terminated. At the conclusion of the termination hearing in December 2021,

the children were the following ages: E.B. seven, T.B. six, A.M. three, and O.M. two. The trial

court ultimately terminated Mother’s parental rights to all four children.

Before beginning the investigation in this case, the Department had conducted

four separate investigations of Mother’s parenting. The first two investigations started in

January 2015 and August 2017 in response to allegations regarding Mother’s marijuana use and

her mental health and allegations of domestic abuse in the home. Those investigations resulted

in family-based services cases in which Mother completed the Department’s services.

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 The third investigation also occurred in 2017 and resulted in the children being

removed from Mother’s care for approximately a year. The Department learned that Mother had

resumed using marijuana and that Mother and the father of her two youngest children (“Father”)

had a physical altercation in which Father choked and threw her and in which she cut him with

a knife in front of two of the children who witnessed the incident. The Department required

Mother to submit to drug testing and therapy. Several months later, the Department returned the

children to Mother’s care after she completed her services.

In May 2019, approximately five months after the children had been returned

to Mother’s care, the Department again removed the children from Mother’s custody after

learning that she had again resumed using marijuana. Following removal, Mother was admitted

to a mental-health hospital. The Department required Mother to attend individual therapy,

participate in other mental-health treatment, and undergo drug testing. Approximately one

year later, the Department returned the children to Mother’s custody after she completed the

recommended services.

Approximately two months after the second return, the Department received a

complaint in this case alleging neglectful supervision by Mother. During a follow-up at

Mother’s home, an investigator observed that Mother appeared “overwhelmed” and that there

were “bugs on the walls, the children appeared ‘dirty,’ and the home appeared cluttered.” When

talking with Mother and E.B., the investigator learned that Father recently fought with Mother,

exhibited “domestic violence behaviors again,” kicked down the door to her apartment, hit her,

threw her around the apartment, pushed her outside, and locked her out of her home, causing

neighbors to intervene. Regarding that incident, E.B. told the investigator that Father “choked”

and “hurt” Mother during the incident and that Father often yelled at Mother.

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 When talking to the investigator, Mother at first denied using marijuana but then

admitted to using after testing positive twice in the weeks following the start of the investigation.

The Department removed the children from Mother’s custody in September 2020. A few days

after the removal, drug testing performed on the two younger children’s hair was positive

for marijuana. The three sisters were placed together with the same foster parents (“Foster

Parents”). T.B. was transferred among several facilities due to disruptive behavior before he was

placed in a special-needs facility for children.

As part of her family service plan, Mother was required to take protective-

parenting classes, maintain safe housing, refrain from using marijuana, attend individual therapy,

submit to random drug tests, submit to a drug and alcohol assessment, participate in supervised

visits with her children, refrain from criminal activity, and submit to a psychological evaluation.

Under the plan, diluted test results and failures to test were considered positive test results.

During the investigation, Mother submitted to multiple urine and hair-follicle tests. Although

many of the urine tests produced negative results, other tests produced the following results: two

positive urine tests for marijuana in August 2020; positive hair follicle tests for marijuana in

September 2020, December 2020, and March 2021; diluted sample results in December 2020,

May 2021, and August 2021; three diluted sample results in September 2021; and failure to test

in November 2020, February 2021, and June 2021.

As required by her family service plan, Mother regularly participated in individual

therapy, and her therapist’s recommendation was monitored return of all four children. Mother

attended weekly visits with her three daughters and would bring activities for them to work on,

and Mother visited with T.B. at the facility where he lived. Additionally, Mother submitted to an

alcohol and drug assessment. Based on her self-reported behavior, the assessment indicated that

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Mother did not have a substance-abuse disorder. Mother also obtained a certification for a drug-

education class and participated in parenting classes. In May 2021, Mother moved with her new

boyfriend (“Boyfriend”) into an apartment with three bedrooms. Mother maintained full-time

employment at a fast-food restaurant and became a manager at the restaurant.

After the children were removed from Mother’s custody, the Department had

E.B. evaluated by a counselor. In her report to the Department, the counselor explained that E.B.

attends a weekly therapy session and diagnosed E.B. as suffering from trauma and a stressor-

related disorder. Additionally, the counselor explained that E.B. needs additional therapy “to

help process traumatic events from her past including exposure to domestic violence, multiple

removals from her mother’s care, and possible sexual abuse.” Further, the counselor explained

that E.B. “has endured a lot emotionally and psychologically” and “cannot heal from the trauma

of her experiences if the pattern of removal continues” and recommended that E.B. remain with

Foster Parents where she has found stability and structure. The counselor also documented in

her notes from a session from March 2021 that E.B. cries at night because she misses Mother.

Another evaluator from T.B.’s facility explained in a report for the Department that T.B. has

autism, limited communication skills, an intellectual disability, a disruptive mood dysregulation

disorder, and attention deficit hyperactivity disorder, and the evaluator also noted that T.B.

has been the victim of child neglect. The evaluator recommended psychiatric treatment,

considerable guidance and supervision for his safety and the safety of others, individual therapy,

and pharmacological intervention.

The final permanency report by the Department documented that Mother became

romantically involved with Boyfriend after the children were removed and that Mother and

Boyfriend moved into a new apartment with three bedrooms; however, the report also expressed

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concern that Mother is dependent financially on Boyfriend and might struggle to balance work

and her family obligations now that she is working, particularly since T.B. has special needs and

behavioral issues. The report also expressed concerns about how Mother did not obtain proper

services for T.B. while he was in her custody and about how this may have contributed to his

behavioral issues. The report explained that the three sisters have lived with Foster Parents

since their removal in September 2020 and that Foster Parents have a strong bond with the three

sisters and want to adopt them. The report described E.B. as happy, artistically inclined, and

independent and described A.M. and O.M. as happy young girls who are well adjusted to their

foster home. Regarding T.B., the report documented that he is doing well and flourishing in

his current placement. Although the report reflected that Mother was participating in individual

therapy regularly, that her visits with her children went well, and that her therapist recommended

monitored return of the children, the report also recommended that her rights be terminated,

that Foster Parents be allowed to adopt the three sisters, and that T.B. continue residing at his

current placement.

The Court Appointed Special Advocate (“CASA”) also prepared a report

concerning the children’s future placement. Regarding E.B., the CASA explained that her

demeanor and behavior have improved after being placed on medicine while in Foster Parents’

care and that E.B. would be traumatized if she were returned to Mother’s custody, resulting in

an interruption of her emotional healing. The CASA also discussed how E.B. has expressed

her desire to live with Foster Parents and her sisters. Regarding T.B., the CASA related that

his current placement has allowed him to improve his balance and coordination through

occupational therapy. The CASA described all three sisters as being happy and adjusted in their

placement with Foster Parents and stated that Foster Parents focus on the sisters’ health and

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safety. Regarding Mother, the CASA expressed concern about her ability to provide a safe

environment for all four children and to remain drug free, stated that she would focus on only

one child during her visits and would lose sight of the others, described her as being

overwhelmed during a visit with the children, and related that she admitted to having difficulty

monitoring the children. The CASA recommended that Mother’s parental rights be terminated.

During the termination hearing, the trial court admitted into evidence the

Department’s final permanency report, the Department’s removal affidavit, the CASA’s report,

Mother’s family service plan, drug-test results for Mother and her two youngest children,

and Mother’s therapist’s notes. In addition, the following witnesses testified: two Department

caseworkers, the CASA, Mother’s therapist, Mother, and Foster Father. The lawyer for Father

also presented a statement regarding his wishes.

The first caseworker testified how Mother’s children had been removed twice

because of Mother’s marijuana use and because of domestic violence and how the third and most

recent removal occurred just a few months after the children were returned the second time.

Regarding the last removal, the caseworker explained that the investigation started after the

police were called regarding domestic violence between Mother and Father that E.B. witnessed.

The caseworker related that the children were removed because Mother started using marijuana

again and that the two youngest children tested positive for marijuana shortly after they were

removed from Mother’s care. Further, the caseworker related that Father had been arrested in

the past for abusing Mother and violating a protective order.

The caseworker acknowledged that Mother was in therapy, that she is working,

that she generally did not have difficulty complying with the requirements of her services plan,

and that her visits with her children after their removal had been going well, but the caseworker

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expressed concern that Mother could not care for all four children at the same time, particularly

because Mother now has a full-time job for the first time. The caseworker acknowledged that

Mother moved into a new apartment with Boyfriend, that the apartment is a safe and suitable

home for the children, that the Department did not have any current concern about Mother’s

mental state, and that Mother has submitted to drug testing and participated in parenting and drug

classes, but the caseworker expressed concern that Mother could not afford her apartment on her

own and that Boyfriend has never met the children.

In her testimony, the caseworker acknowledged that Mother had not had a

positive urine test since about the time that the children were removed and that the hair-follicle

tests showed diminishing concentrations; however, she also stated that Mother has used

marijuana in the past as a coping mechanism for her depression; that she had multiple positive

hair-follicle test results after the children had been removed in this case, including one hair-

follicle test performed seven months after the removal and after she became involved with

Boyfriend; and that she had several diluted urine results. The caseworker stated that she was

concerned that the children might be removed from Mother’s custody again if Mother relapses.

The caseworker acknowledged that Mother had not had any unsupervised visits with her

children, in part, because the Department concluded that reunification was not its primary goal.

Regarding the children, the caseworker related that E.B. and T.B. both suffered

from trauma. Further, the caseworker stated that E.B. is receiving the therapy that she needs, has

expressed her preference to live with Foster Parents, and witnessed Mother and Father fight

while living with them. Although the caseworker acknowledged that the other sisters are too

young to express where they would like to live, the caseworker explained that all three sisters are

bonded with Foster Parents. Regarding T.B., the caseworker related that he loves his current

8
placement, gets along with the other children there, is receiving the correct medications, is

behaving better than ever, and has been participating in speech and occupational therapy. A

second caseworker testified that the Department’s goals for T.B. are to get his behavior stabilized

before placing him in a foster home but also testified that Mother communicates well with

T.B. and sings with him. The first caseworker testified that all four children are having their

emotional and physical needs met at their respective placements. Further, the caseworker related

that Foster Parents want to adopt the three sisters, that it is in the sisters’ best interest to remain

together, and that Foster Parents have promised that they will ensure the three sisters remain

involved in T.B.’s life.

Finally, the caseworker testified that the Department recommended termination of

Mother’s parental rights because this is the third time that the children have been removed from

her custody for an extended period of time, because the older two children have been feeling

the effects of the trauma resulting from living with her, because she has exhibited a pattern of

complying with the Department’s requirements before resuming using marijuana and exposing

the children to domestic violence, and because the children are all thriving in their current

placements. Accordingly, the caseworker recommended that Foster Parents be allowed to adopt

the three sisters and that the Department be named as permanent managing conservator for T.B.

The CASA testified about her observations of Mother and the children. Regarding

Mother, the CASA acknowledged that she completed her services, submitted to drug testing,

continued to reside in the new and appropriate apartment, and has not had a positive urine test

since the children were removed; however, the CASA also testified that Father stated that

Mother was not able to properly parent the children and that she continues to have difficulty

monitoring multiple children at the same time during supervised visits, including one incident at

9
a park where E.B. had to tell Mother to retrieve the younger sisters after they had wandered an

“uncomfortable” distance away. Although the CASA acknowledged that Mother would bring

activities during her visits with the children, the CASA also related that she did not recognize

that some of the activities presented choking hazards for the younger children.

Concerning E.B., the CASA related that she consistently expresses her desire to

live with Foster Parents, that her therapist believes her psychological health could be impacted if

she lived with Mother again, and that Mother would not be able to address E.B.’s mental-health

issues. Regarding T.B., the CASA explained that his current placement has properly medicated

him, is able to provide the constant supervision that he needs, has taught him to express himself

through music, is working on getting him potty trained, can provide the types of therapies that he

needs, and is working on his behavioral issues with the ultimate goal of enrolling him in public

school. Moreover, the CASA related that when Mother had custody of T.B., she did not attempt

to enroll T.B. in therapies that would have benefitted him. Concerning the younger sisters, the

CASA related that they are both happy and well cared for by Foster Parents. Finally, the CASA

testified that she initially recommended that Foster Parents be appointed managing conservators

for the sisters but later concluded that termination of Mother’s parental rights was in all the

children’s best interest because of how well the children have been doing at their current

placements and because of their need for stability and permanence.

Mother’s therapist testified that she counseled Mother from November 2020 to

July 2021, that Mother was actively engaged in the therapy and requested an extension, that she

followed through on recommendations, and that she was discharged from therapy in July 2021.

Further, the therapist explained that Mother’s urine tests produced negative results, that the hair-

follicle tests produced results indicating that marijuana was leaving her system, that she obtained

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and maintained employment, that she moved into a better place to live, that she continues to

stabilize, and that she found other ways to deal with stress rather than using marijuana. The

therapist also related that she did not see anything about Mother’s mental health that indicated

she would have difficulty being attentive to her children; however, the therapist acknowledged

that she did not know where the children wanted to live, did not know how the children were

doing, and made her monitored-return recommendation based only on her work with Mother.

Additionally, Mother’s therapist admitted that she was unaware that Mother had tested positive

for marijuana in March 2021 and had multiple diluted test results and acknowledged that if

the March result was from new use, that result would indicate that Mother has not resolved

her drug issue.

Following her therapist’s testimony, Mother testified that she has completed the

counseling required by her services plan and continues to submit to drug testing, that her drug

tests results have been negative, and that she enrolled in services not required by the Department,

including drug-education classes, couples therapy, and more parenting classes. Additionally,

Mother related that she has learned to use coping mechanisms other than marijuana, takes

medicine for her mental health, and no longer feels the need to self-medicate. Mother denied

using marijuana since this case started and described her apartment as having room for all the

children. Moreover, Mother explained that she is now a manager at a fast-food restaurant and

has the authority to adjust her work schedule to accommodate her children. Further, Mother

stated that Boyfriend helps pay the bills and is ready to help raise the children.

In her testimony, Mother admitted that she has repeatedly claimed that she would

provide a safe home for her children before their most recent removal, that her first involvement

with the Department in 2015 should have resulted in her making significant life changes, that she

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relapsed multiple times resulting in further Department investigations, that the initial positive

tests in this case were accurate, and that E.B. suffers from trauma and anxiety caused by

Mother’s choices. However, Mother also stated that she believed there will be no more removals

because she has changed so much about her life, including her support system, her home, and her

job. Further, Mother testified that Father has been out of her life for a year and a half. Mother

also related that she could provide a safe and stable environment for all her children, that T.B.

would do well in her new home, that she can communicate with T.B. better than anyone, and that

O.M. would be placed in daycare while she worked.

After Mother finished testifying, Foster Father explained that he and his wife

are committed to providing for the sisters either as adoptive parents or as custodians and

are committed to making sure that they have a relationship with T.B. Foster Father also

communicated that the sisters are happy in their home. Regarding E.B., Foster Father testified

that they have “a father/daughter bond,” that she wants to be near him, that she calls him

“Dad,” and that he is concerned about the consequences to her if the children are removed

from his and his wife’s care. In addition, Foster Father promised to follow the Department’s

recommendations concerning the sisters and testified that it was in the sisters’ best interest for

Mother’s rights to be terminated and for him and his wife to adopt them.

Finally, the lawyer for Father related his beliefs that all of the children are happy

where they are and that the three sisters should remain in the care of Foster Parents.

Following the conclusion of the hearing in December 2021, the trial court issued

its decree in January 2022, finding that termination of Mother’s parental rights to her four

children was in their best interest and that Mother knowingly placed or allowed the children

to remain in conditions that endangered their physical and emotional well-being, engaged in

12
conduct or knowingly placed the children with individuals who engaged in conduct that

endangered their physical and emotional well-being, and failed to comply with the provisions of

a court order establishing the actions necessary for her to obtain the return of the children.

Mother appeals the trial court’s decree terminating her rights to her children.

STANDARD OF REVIEW AND GOVERNING LAW

To terminate an individual’s parental rights, the Department must prove by clear

and convincing evidence that the parent engaged in conduct listed as a statutory ground for

termination in the Family Code and that termination is in the child’s best interest. Tex. Fam.

Code § 161.001(b); In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). “‘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 § 101.007. When reviewing a termination order, appellate courts defer to the

factfinder, who, “having full opportunity to observe witness testimony first-hand, is the sole

arbiter when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498,

503 (Tex. 2014).

In legal-sufficiency reviews, appellate courts consider undisputed evidence

contrary to the finding at issue but assume that the factfinder resolved disputed facts in favor of

the finding. In re A.C., 560 S.W.3d 624, 630-31 (Tex. 2018). The evidence is legally sufficient

“if, viewing the evidence in the light most favorable to the fact-finding and considering

undisputed contrary evidence, a reasonable factfinder could form a firm belief or conviction that

the finding was true.” Id. at 631. In contrast, for factual-sufficiency reviews, appellate courts

weigh the disputed evidence contrary to the finding against the evidence supporting the finding

13
and ascertain “whether disputed evidence is such that a reasonable factfinder could not have

resolved it in favor of the finding.” Id. “Evidence is factually insufficient if, in light of the entire

record, the disputed evidence a reasonable factfinder could not have credited in favor of a finding

is so significant that the factfinder could not have formed a firm belief or conviction that the

finding was true.” Id.

DISCUSSION

In her first issue, Mother contends that the evidence is legally and factually

insufficient to support the trial court’s best-interest determination. In her second issue on appeal,

Mother asserts that the evidence is legally and factually insufficient to support the trial court’s

determination that she failed to comply with the provisions of a court order establishing the

actions necessary for her to obtain the return of her children.

Best Interest

The best-interest prong “is child centered and focuses on the child’s well-being,

safety, and development.” Id. This determination is guided by multiple non-exclusive factors,

including the following: (1) the child’s wishes; (2) the child’s physical and emotional needs;

(3) the physical and emotional danger to the child now and in the future; (4) the parental

abilities of the people seeking custody; (5) programs available to help those people; (6) the

plans for the child by those people or the agency seeking custody; (7) the stability of the home

or proposed placement; (8) the parent’s acts or omissions indicating that the parent-child

relationship is improper; and (9) any excuse for the parent’s acts or omissions. Holley v. Adams,

544 S.W.2d 367, 371-72 (Tex. 1976). The Department need not prove all the factors, and the

absence of evidence for some of the factors does not preclude a finding that termination is in the

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child’s best interest. Spurck v. Texas Dep’t of Fam. & Protective Servs., 396 S.W.3d 205, 222

(Tex. App.—Austin 2013, no pet.). “While no one factor is controlling, the analysis of a single

factor may be adequate in a particular situation to support a finding that termination is in the

child’s best interest.” Id. Evidence pertaining to a statutory ground for termination may also

be probative of the best-interest prong. In re C.H., 89 S.W.3d 17, 28 (Tex. 2002).

On appeal, Mother argues that the evidence was insufficient to support the trial

court’s best-interest determination for several reasons. First, Mother highlights the testimony

describing her current home as safe and suitable for children and notes that she became

employed full-time during the case and was promoted to a manager. Further, Mother points to

testimony from the first caseworker explaining that the Department did not have concerns

regarding Mother’s current behavior and mental state. Next, Mother references the evidence

establishing that she completed the requirements of her services plan and elected on her own

volition to extend individual therapy and to enroll in and attend additional classes.

Mother also relies on testimony from her therapist stating that Mother was

engaged in counseling and followed through with recommendations; that Mother has continued

to stabilize, addressed her anxiety, identified her triggers leading to marijuana use, and

developed healthy relationships; that she had no concerns about Mother’s current mental state

and her ability to be responsible for caring for her children; and that she recommended that

the children be returned to Mother’s care on a monitored basis. Additionally, Mother refers to

her own testimony in which she explained that Father was a trigger for her marijuana use, that

Father is out of her life, and that her current mental-health medication is working. Moreover,

Mother asserts that the only two positive urine tests in this case occurred early on and that

the CASA’s report indicated that she had remained drug free since the children’s removal.

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Regarding domestic-violence concerns, Mother highlights that Boyfriend does not have a

criminal history and that the first caseworker testified that she was not concerned that Mother

was currently involved in an abusive relationship or still romantically involved with Father.

In addition, Mother summarizes testimony and other evidence discussing how her

visits with her children went well, how E.B. cried because she missed Mother, and how Mother

and T.B. were able to communicate even though he was mostly nonverbal. Further, Mother

points to her own testimony expressing that she would make every effort to make a safe and

stable home for her children, lives near where her children would go to school, would be able to

drive her children to school, and could make a work schedule that would accommodate her

children’s needs.

However, evidence other than that relied on by Mother was presented during the

hearing.2 See id. When making her recommendation, Mother’s therapist acknowledged that she

did not know how the children were doing and was unaware that Mother tested positive for

marijuana in March 2021 and had multiple diluted test results, and the therapist agreed that if the

positive result was from new use, Mother has not resolved her drug issue. Further, evidence was

presented regarding Mother’s extensive history of substance abuse and regarding how her drug

2
We note that the CASA and the first caseworker both testified that E.B. wanted to live
with Foster Parents and her sisters. However, E.B. did not testify, and there was no evidence
regarding whether she was sufficiently mature to make that determination. Moreover, the first
caseworker testified that the other two sisters were too young to express a preference regarding
where they would like to live. Additionally, the evidence pertaining to T.B. demonstrated that
he has a limited ability to express himself. Accordingly, the children’s desires do not weigh in
favor of or against termination of Mother’s rights. See In re D.W., 445 S.W.3d 913, 926 (Tex.
App.—Dallas 2014, pet. denied) (holding desire-of-child factor as neutral where children did not
testify at trial, where some of children were too young to express preference, and where there
was no evidence showing sufficient maturity of older children aged nine, eight, six, and five
years old being able to express living preference); In re A.C., 394 S.W.3d 633, 643 (Tex. App.—
Houston [1st Dist.] 2012, no pet.) (“The young age of the [three-year-old] child render[s]
consideration of the child’s desires neutral.”).
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use led to the Department’s intervention and the children’s removal multiple times before the

present case. See In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.—Fort Worth 2003, no pet.)

(noting that parental drug use is relevant to best-interest determination); In re F.A.R., No. 11-04-

00014-CV, 2005 WL 181719, at *4 (Tex. App.—Eastland Jan. 13, 2005, no pet.) (mem. op.)

(observing that evidence of “continued drug use . . . demonstrates an inability to provide a stable

environment for [child] and an inability to provide for his emotional and physical needs”).

Furthermore, evidence presented during the hearing established that Mother tested

positive for illegal drugs after the children were removed from her care. See D.H. v. Texas Dep’t

of Fam. & Protective Servs., No. 03-21-00255-CV, ___ S.W.3d ___, 2021 WL 5098308, at *5

(Tex. App.—Austin Nov. 3, 2021, no pet.) (noting that “this and numerous other courts of

appeals have recognized that a parent’s decision to use illegal drugs while the termination suit is

pending, and the parent is at risk of losing her child, may support a finding of endangering

conduct”); In re C.V.L., 591 S.W.3d 734, 751 (Tex. App.—Dallas 2019, pet. denied) (same); see

also In re M.A.J., 612 S.W.3d 398, 407-08 (Tex. App.—Houston [1st Dist.] 2020, pet. denied)

(determining that evidence of positive drug tests after receiving referral that parent used

narcotics was sufficient to support endangerment finding). And evidence demonstrated that the

two youngest children also tested positive for marijuana at the time of the removal. See In re

A.T.-W., No. 07-19-00141-CV, 2019 WL 4125128, at *4 (Tex. App.—Amarillo Aug. 29, 2019,

pet. denied) (mem. op.) (concluding that factor considering parental abilities weighed in favor of

termination because mother “failed to demonstrate an ability to cease using cocaine or protect

her children from the drug” where she and children tested positive for cocaine).

In addition, although Mother referenced evidence suggesting that she has made

significant improvements in her life, “evidence of improved conduct, especially of short-

17
duration, does not conclusively negate the probative value of a long history of drug use and

irresponsible choices.” See In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009); see also In re

M.G.D., 108 S.W.3d 508, 513, 514 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (noting

that “evidence of a recent turnaround should be determinative only if it is reasonable to conclude

that rehabilitation, once begun, will surely continue,” that narcotics-abuse and physical-abuse

issues “sometimes reappear,” and that factfinder is not required to ignore history of drug use

and abuse “merely because it abates as trial approaches”).

Although Mother notes that her two positive urine tests occurred at the beginning

of this case and that the hair-follicle tests showed a reduction in marijuana concentration over

time, Mother also had multiple diluted test results and failed to test three times during this

case, including shortly before and shortly after the first day of the termination hearing. Under

Mother’s family service plan, those diluted results and failures to test counted as positive drug

results. See In re K.M.R., No. 14-17-00651-CV, 2018 WL 614762, at *12 (Tex. App.—Houston

[14th Dist.] Jan. 30, 2018, pet. denied) (mem. op.) (“As sole arbiter of credibility and demeanor,

the trial court was free to credit positive test results over Father’s denial of cocaine use”); see

also In re S.S., No. 04-18-00325-CV, 2018 WL 6182852, at *6 (Tex. App.—San Antonio

Nov. 28, 2018, no pet.) (mem. op.) (determining that evidence was sufficient to support best-

interest determination where evidence showed, among other things, that mother tested positive

for drugs on more than one occasion during pendency of case). Further, a hair-follicle test

conducted more than seven months after the children were removed revealed that Mother still

had marijuana in her system. See M.D. v. Texas Dep’t of Fam. & Protective Servs., No. 03-20-

00531-CV, 2021 WL 1704258, at *8 (Tex. App.—Austin Apr. 30, 2021, no pet.) (mem. op.)

(noting testimony that “hair-follicle test can trace the use of substances as far back as 90 days”);

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In re J.C.R., No. 04-18-00949-CV, 2019 WL 2110109, at *3 (Tex. App.—San Antonio May 15,

2019, pet. denied) (mem. op.) (same).

Moreover, evidence was presented during the hearing showing that Mother was in

an abusive relationship with Father for years and that the abuse resulted in intervention by the

Department. See In re S.K.A., 236 S.W.3d 875, 903 (Tex. App.—Texarkana 2007, pet. denied)

(explaining that history of abusive or assaultive conduct in child’s family is relevant to best-

interest analysis). Additionally, the children were present and witnessed some of the acts of

abuse. See In re S.R., 452 S.W.3d 351, 366 (Tex. App.—Houston [14th Dist.] 2014, pet. denied)

(noting that “history of domestic violence in front of the Children” supported determination

that termination was in children’s best interest). Although Mother completed services in prior

Department cases, including two prior cases where her children were removed from her custody,

she still engaged in the behavior that led to the current case, and the first caseworker expressed

concern that the children will be removed again if returned to Mother’s custody because she

has a history of complying with the Department’s requirements before relapsing. Cf. In re E.D.,

419 S.W.3d 615, 620 (Tex. App.—San Antonio 2013, pet. denied) (explaining that “trier of fact

may measure a parent’s future conduct by his past conduct” in best-interest determination).

Moreover, Mother conceded that she should have altered her behavior after the first intervention

by the Department.

In addition, the evidence showed that the four children were happy and thriving

in their current placements and that the three sisters have a strong bond with Foster Parents.

Further, E.B. and T.B. suffered trauma while living with Mother, and E.B. continues to need

therapy to process her exposure to domestic violence and her repeated removals from Mother’s

care. E.B.’s counselor explained that E.B. will not heal from her trauma if the pattern of removal

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continues. In his current placement, T.B. is receiving services and medication that he has

needed, and his behavior has improved. Moreover, the first caseworker and the CASA both

described concerns about Mother being able to monitor all of the children at the same time

because of behavior that she exhibited during visits with the children and because of admissions

made by Mother, and they both recommended that Mother’s rights be terminated. Cf. In re

C.A.J., 122 S.W.3d at 893 (noting that parent’s inability to provide adequate care for children

may be considered in best-interest determination). The caseworker also explained that over

the last forty months, Mother only had custody of the children without intervention by the

Department for nine months.

Moreover, the caseworkers explained that the Department was recommending that

the three sisters be adopted by Foster Parents, that T.B. remain in his current placement where

he receives the services that he needs, and that T.B. attend public school and live in a foster

home when he is ready. In his testimony, Foster Father discussed how he and Foster Mother

cooperated with the Department and CASA during this case, have bonded with the sisters, have

provided the sisters with rooms that meet their needs, are committed to providing for the sisters’

needs, will follow all the professionals’ recommendations regarding the children’s care, want to

adopt the sisters, and intend to ensure that the sisters have a relationship with T.B. See Hann v.

Texas Dep’t of Protective & Regul. Servs., 969 S.W.2d 77, 83 (Tex. App.—El Paso 1998,

pet. denied) (observing that “establishing a stable, permanent home for a child is a compelling

interest for the government”), disapproved on other grounds by In re J.F.C., 96 S.W.3d 256, 267

& n.39 (Tex. 2002); see also In re L.W., No. 01-18-01025-CV, 2019 WL 1523124, at *17 (Tex.

App.—Houston [1st Dist.] Apr. 9, 2019, pet. denied) (mem. op.) (considering in best-interest

analysis evidence of children doing well in placement with foster parents, who were meeting

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children’s needs, and noting that children had been placed together); D.O. v. Texas Dep’t of

Human Servs., 851 S.W.2d 351, 358 (Tex. App.—Austin 1993, no writ) (observing that best-

interest determination may consider whether termination would allow adoption to occur),

disapproved on other grounds by In re J.F.C., 96 S.W.3d at 267 & n.39.

Viewing all the evidence in the light most favorable to the trial court’s decree, we

conclude that a fact finder could have formed a firm belief or conviction that termination of

Mother’s parental rights is in the best interest of her four children. After weighing the disputed

evidence that is contrary to the best-interest finding against the evidence supporting the best-

interest finding, we conclude that the disputed evidence is not so significant that a reasonable

fact finder could not have resolved it in favor of the finding. Accordingly, after considering the

relevant factors under the appropriate standards of review, we conclude that the evidence is

legally and factually sufficient to support the trial court’s finding that termination of the parent-

child relationship is in the children’s best interest.

For these reasons, we overrule Mother’s first issue on appeal.

Statutory Predicate Ground for Termination

In her second issue on appeal, Mother specifically argues that the evidence is

legally and factually insufficient to support the trial court’s determination that she failed to

comply with the provisions of a court order establishing the actions necessary for the children to

be returned to her custody. See Tex. Fam. Code § 161.001(b)(1)(O). In its appellee’s brief, the

Department notes, as set out above, that the trial court determined that other statutory grounds

for termination also applied in this case. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003)

(“Only one predicate finding under section 161.001[(b)](1) is necessary to support a judgment

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of termination when there is also a finding that termination is in the child’s best interest.”).

Therefore, the Department argues that because Mother does not challenge the trial court’s

findings under subsections (D) and (E) and because either of those grounds alone could support

the trial court’s termination decree, we need not address the legal and factual sufficiency of

evidence pertaining to the challenged or unchallenged grounds. See In re K.A., No. 02-19-

00099-CV, 2019 WL 4309168, at *11 (Tex. App.—Fort Worth Sept. 12, 2019, pet. denied)

(mem. op.). In her reply brief, Mother agrees that elements (D) and (E) “were not specifically

listed issues within the brief” but urges that she did “not concede these issues” because “all

factors needed to contest these findings are within the brief.”

Even if Mother’s briefing can be construed as also challenging the sufficiency of

the evidence pertaining to the trial court’s findings under (D) and (E), see Plasma Fab, LLC v.

BankDirect Cap. Fin., LLC, 468 S.W.3d 121, 134 n.7 (Tex. App.—Austin 2015) (explaining that

“an issue raised for the first time in a reply brief is waived and need not be considered by an

appellate court”), aff’d 519 S.W.3d 76 (Tex. 2017), in resolving this issue, we would only need

to consider whether the evidence is sufficient to support termination under either subsection (D)

or (E), see A.C. v. Texas Dep’t of Family & Protective Servs., 577 S.W.3d 689, 698-99 & n.2

(Tex. App.—Austin 2019, pet. denied) (noting that when appellant challenges both subsection

(D) and (E) findings, appellate court needs to ensure that evidence is sufficient to support one of

those grounds); see also In re N.G., 577 S.W.3d 230, 234, 237 (Tex. 2019) (explaining that

“due process and due course of law” require appellate courts to review sufficiency of evidence

supporting (D) or (E) grounds “when the parent has presented the issue to the court” because

endangerment findings in prior termination proceedings can be used as basis for termination

in subsequent proceedings involving other children). Under subsection (E), a trial court may

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terminate an individual’s parental rights if the person “engaged in conduct or knowingly placed

the child with persons who engaged in conduct which endangers the physical or emotional well-

being of the child.” Tex. Fam. Code § 161.001(b)(1)(E). “In this context, ‘endanger,’ means ‘to

expose to loss or injury, to jeopardize.’” J.G. v. Texas Dep’t of Fam. & Protective Servs.,

592 S.W.3d 515, 524 (Tex. App.—Austin 2019, no pet.) (quoting In re M.C., 917 S.W.2d 268,

269 (Tex. 1996)). “Endangerment encompasses ‘more than a threat of metaphysical injury or the

possible ill effects of a less-than-ideal family environment,’ but it is not necessary that the

conduct was directed at the child or that the child actually suffered injury.” Id. (quoting In re

M.C., 917 S.W.2d at 269).

Under subsection (E), the relevant inquiry is whether evidence exists that the

parent’s conduct, including acts, failures to act, and omissions, endangered the child’s well-

being. In re D.O., 338 S.W.3d 29, 34 (Tex. App.—Eastland 2011, no pet.). “As a general rule,

conduct that subjects a child to a life of uncertainty and instability endangers the physical and

emotional well-being of a child.” In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth

2004, pet. denied). Termination under this subsection must be based on more than a single act or

omission; rather, a deliberate, voluntary, and conscious course of conduct is required. In re D.T.,

34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied). However, the conduct at issue

does not need to be aimed at the child, and the child does not need to suffer an injury. In re T.N.,

180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.).

A parent’s drug use can constitute evidence of endangerment, D.H., 2021 WL

5098308, at *3; In re T.N., 180 S.W.3d at 383, and evidence that a child has been exposed to

drugs can also constitute evidence of endangerment, In re J.W., No. 02-08-00211-CV, 2009 WL

806865, at *5 (Tex. App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op.). A reasonable

23
inference that a parent was avoiding testing because the parent was using drugs can be made

from a parent’s failure to attend scheduled drug screenings. In re W.E.C., 110 S.W.3d 231,

239 (Tex. App.—Fort Worth 2003, no pet.). Similarly, evidence establishing domestic violence

in the home may constitute evidence of endangerment under subsection (E) even if the violence

is not directed toward the child. In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston

[14th Dist.] 2019, no pet.); see In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.—Eastland 2010,

pet. denied).

As discussed previously, the Department removed the children in this case

because of domestic violence occurring in the home and because of Mother’s drug use.

Moreover, the children witnessed domestic violence occurring between Mother and Father, and

E.B. was traumatized by the abuse and continues to need therapy to process the events and heal.

See In re P.W., 579 S.W.3d at 727. Further, at the time of the removal, the two youngest siblings

tested positive for marijuana. See In re E.R., No. 07-20-00276-CV, 2021 WL 359781, at *5

(Tex. App.—Amarillo Feb. 2, 2021, no pet.) (mem. op.) (concluding that evidence showing that

“children tested positive for crack cocaine” established conduct “that endangered their physical

well-being”). In addition, the children were removed from Mother’s custody by the Department

multiple times before this case. Although Mother completed her services to obtain the return

of the children in the prior removals, she subsequently reengaged in the endangering conduct

that resulted in their removal in this case. Cf. In re D.O., 338 S.W.3d at 34 (noting in

endangerment analysis “that the Department has conducted numerous investigations” of parents

“over the years”).

Further, although Mother asserts that the evidence is insufficient to support a

determination that she used marijuana after the children’s removal, Mother missed several urine

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tests and had multiple diluted results, supporting a reasonable inference that she had used drugs

around those testing times. See In re W.E.C., 110 S.W.3d at 239. Additionally, Mother had

positive hair-follicle tests throughout this case, including one taken more than seven months after

the children were removed. Cf. D.H., 2021 WL 5098308, at *3 (noting that “a parent’s drug use

may support termination under subsection (E) because it exposes the child to the possibility that

the parent may be impaired or imprisoned”).

Viewing all the evidence in the light most favorable to the trial court’s decree, we

believe that a fact finder could have formed a firm belief or conviction that Mother engaged

in conduct endangering the children’s physical or emotional well-being. In light of the entire

record, we believe that the disputed evidence that a reasonable fact finder could not have credited

in favor of the endangerment finding is not so significant that a fact finder could not reasonably

have formed a firm belief or conviction that Mother engaged in conduct endangering the

children’s physical or emotional well-being. Accordingly, after considering the relevant factors

under the appropriate standards of review, we would conclude that the evidence is legally and

factually sufficient to support the trial court’s endangerment determination.

For these reasons, we overrule Mother’s second issue on appeal.

CONCLUSION

Having overruled both of Mother’s issues on appeal, we affirm the trial court’s

termination decree.

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 __________________________________________
Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Triana

Affirmed

Filed: July 8, 2022

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