Affirmed and Memorandum Opinion filed July 7, 2016.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-16-00071-CV


                IN THE INTEREST OF A.W.G., JR., A CHILD

                     On Appeal from the 314th District Court
                              Harris County, Texas
                       Trial Court Cause No. 2014-06727J


                  MEMORANDUM                        OPINION
      The trial court terminated the parental rights of A.W.G. (Father) and C.C.W.
(Mother) with respect to their son, Adam,1 and appointed appellee Texas
Department of Family and Protective Services (the Department) to be Adam’s
managing conservator. Father raises three issues challenging the sufficiency of the
evidence to support the judgment. Mother does not appeal. We affirm.




1
  We use fictitious names for the children discussed in this opinion. See Tex. R. App. P.
9.8(b)(2).
                                       BACKGROUND
       On September 11, 2014, the Department received a referral alleging Mother
was under the influence of drugs and was slurring, stumbling, and acting violently
while holding Adam, then eight months old. According to the referral, Mother and
Father used methamphetamines and marijuana daily. They regularly left Adam
with a caregiver, known as “GG,” who reportedly used PCP, marijuana, Vicodin,
hydrocodone, and Xanax. A month earlier, Adam allegedly grabbed a bag of
marijuana off a coffee table. Adam was also said to have been “covered” in bed
bug bites a few weeks before the referral and still had some bites. The referral
stated Adam’s parents failed to provide adequate supervision for him and left him
alone for long periods of time.

       Department investigator Jennifer Stephens interviewed Mother and Father
the next day. Both admitted using drugs in the past but denied using them
currently. Ten days later, both parents and Adam’s godmother, Heather, were
tested for drugs. Mother and Father tested positive for amphetamines and
methamphetamines; Father also tested positive for marijuana.2 Heather tested
positive for PCP and marijuana.

       The case was transferred to the Department’s Family Based Safety Services
section on October 16, 2014. The next day, a woman named Christine, who lived
in Adam’s apartment complex, agreed to serve as the Parental Child Safety
Placement, meaning she would take responsibility for Adam while his parents were
participating in Department services.




2
  The positive results were from a hair follicle test. Each parent’s urine was negative for those
substances.
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      Christine kept Adam for two months. She called the Department on
December 16, 2014, to say she would be unable to take care of him past December
19.

      Department caseworker Tiffany Brown met with Adam’s parents and
paternal grandmother, Ethel, on December 18 to find an alternate placement for
Adam. Ethel offered to take him but said she had no income and depended on her
children for money.

      During that meeting, Brown noticed Adam had a black eye. Mother and
Ethel said Adam got the black eye when he fell into a table while trying to walk.
The next day, Department supervisor Stephanie Malek called Christine, who said
she believed Adam fell into the table at Ethel’s apartment. Brown then went to
Ethel’s home, located across the street from Adam’s apartment complex. Ethel said
Adam fell at Christine’s apartment.

      Brown asked where Adam was at that time, and Ethel said he was with
Christine. Brown went across the street to the apartment complex and located
Father, who worked in the complex’s maintenance department. Father, too, said
Adam was with Christine. Brown found Christine getting into her car to leave the
complex, but she did not have Adam. Christine said Adam was with his
godmother, Heather. Brown, joined by Malek, a deputy sheriff, Father, and
Christine, went to Heather’s apartment. Heather said Adam was not there and she
did not know where he was.

      Finally, Adam was found in Mother’s apartment, even though Mother was
not permitted to be with Adam unless supervised by Christine. When the group
entered her apartment, Mother became “very hostile, screaming and yelling” while
she was holding Adam and nearly hit his head on a door frame. Mother said she
took Adam because she “would take better care of him instead of him being passed
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around the apartment complex from one drug user to another watching him.” When
asked about Adam’s black eye, Mother said he fell into a coffee table at her
apartment. The Department workers informed Mother they were very concerned
about the three inconsistent accounts of where Adam hurt himself—Ethel’s
apartment, Christine’s apartment, and Mother’s apartment. In response, Mother
became more hostile, cursing and repeatedly telling Father that “they are taking our
child because of your [expletive] mother.”

      Though Mother refused to let go of him, Adam was eventually removed
from the apartment and placed in foster care. The Department filed its original
petition for conservatorship and termination on December 22, 2014.

      Trial was held on December 1, 2015. Father orally moved for a continuance
before testimony began, contending he had not completed the requirements of his
court-ordered family service plan in part due to administrative errors by the
Department. The Department responded that Father had ample opportunity to
complete the services, and it was in Adam’s best interest for the trial to go forward
that day. The trial court denied the motion for continuance. The Department
presented testimony from a Department caseworker, Father, and Adam’s foster
father. Father did not call any witnesses. Mother did not appear at trial.

      The trial court orally announced its finding that Mother and Father engaged
in the conduct described in subsection E of section 161.001(1) of the Family Code.
See Tex. Fam. Code Ann. § 161.001(1). The trial court further found termination
of both parents’ parental rights was in Adam’s best interest. Id. § 161.001(2). The
trial court signed a judgment terminating both parents’ relationships with Adam
and appointing the Department to be his managing conservator. The judgment
bases termination on subsections E and O of section 161.001(1), even though the
trial court’s oral pronouncement was on subsection E only.

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      Father filed a motion for new trial to present new evidence, which was
denied. Father timely appealed.

      On appeal, Father challenges the sufficiency of the evidence to support each
of the trial court’s findings. He does not challenge the appointment of the
Department as managing conservator.

                                      ANALYSIS
I.    Burden of Proof and Standards of Review
      Involuntary termination of parental rights is a serious matter implicating
fundamental constitutional rights. See In re G.M., 596 S.W.2d 846, 846 (Tex.
1980); In re S.R., 452 S.W.3d 351, 357 (Tex. App.—Houston [14th Dist.] 2014,
pet. denied). Although parental rights are of constitutional magnitude, they are not
absolute. The child’s emotional and physical interests must not be sacrificed
merely to preserve the parent’s rights. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).

      Due to the severity and permanency of the termination of parental rights, the
burden of proof is heightened to the clear and convincing evidence standard. See
Tex. Fam. Code Ann. § 161.001; In re J.F.C., 96 S.W.3d 256, 265–66 (Tex. 2002).
“‘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; accord
J.F.C., 96 S.W.3d at 264. This heightened burden of proof results in a heightened
standard of review. S.R., 452 S.W.3d at 358.

      Parental rights can be terminated upon proof by clear and convincing
evidence that (1) the parent has committed an act described in section 161.001(1)
of the Texas Family Code, and (2) termination is in the best interest of the child.
Tex. Fam. Code Ann. § 161.001. Only one predicate finding under section

                                          5
161.001(1) is necessary to support a decree of termination when there is also a
finding that termination is in the child’s best interest. In re A.V., 113 S.W.3d 355,
362 (Tex. 2003).

      In reviewing the legal sufficiency of the evidence in a termination case, we
must consider all the evidence in the light most favorable to the finding to
determine whether a reasonable fact finder could have formed a firm belief or
conviction that its finding was true. See In re J.O.A., 283 S.W.3d 336, 344 (Tex.
2009); J.F.C., 96 S.W.3d at 266; C.H., 89 S.W.3d at 25. We assume the fact finder
resolved disputed facts in favor of its finding if a reasonable fact finder could do
so, and we disregard all evidence a reasonable fact finder could have disbelieved.
J.O.A., 283 S.W.3d at 344; J.F.C., 96 S.W.3d at 266.

      In reviewing termination findings for factual sufficiency of the evidence, we
consider and weigh all the evidence, including disputed or conflicting evidence.
See J.O.A., 283 S.W.3d at 345. “If, in light of the entire record, the disputed
evidence that a reasonable fact finder could not have credited in favor of the
finding is so significant that a fact finder could not reasonably have formed a firm
belief or conviction, then the evidence is factually insufficient.” J.F.C., 96 S.W.3d
at 266. We give due deference to the fact finder’s findings, and we cannot
substitute our own judgment for that of the fact finder. In re H.R.M., 209 S.W.3d
105, 108 (Tex. 2006) (per curiam). The fact finder is the sole arbiter when
assessing the credibility and demeanor of witnesses. Id. at 109. We are not to
“second-guess the trial court’s resolution of a factual dispute by relying on
evidence that is either disputed, or that the court could easily have rejected as not
credible.” In re L.M.I., 119 S.W.3d 707, 712 (Tex. 2003).




                                         6
II.   Predicate Ground for Termination: Endangerment

      A.     Legal standards
      Parental rights may be terminated if a parent “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 Ann.
§ 161.001(1)(E). “To endanger” means to expose a child to loss or injury or to
jeopardize a child’s emotional or physical health. See In re M.C., 917 S.W.2d 268,
269 (Tex. 1996); S.R., 452 S.W.3d at 360.

      The evidence must show the endangerment was the result of the parent’s
conduct, including acts, omissions, or failures to act. In re J.T.G., 121 S.W.3d 117,
125 (Tex. App.—Fort Worth 2003, no pet.). Termination under subsection E must
be based on more than a single act or omission; the statute requires a voluntary,
deliberate, and conscious course of conduct by the parent. Id. A court properly may
consider actions and inactions occurring both before and after a child’s birth to
establish a “course of conduct.” In re S.M., 389 S.W.3d 483, 491–92 (Tex. App.—
El Paso 2012, no pet.). Although endangerment often involves physical
endangerment, the statute does not require that conduct be directed at a child or
that the child actually suffer injury; rather, the specific danger to the child’s well-
being may be inferred from the parent’s misconduct alone. Tex. Dep’t of Human
Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re R.W., 129 S.W.3d 732,
738–39 (Tex. App.—Fort Worth 2004, pet. denied). A parent’s conduct that
subjects a child to a life of uncertainty and instability endangers the child’s
physical and emotional well-being. In re A.B., 412 S.W.3d 588, 599 (Tex. App.—
Fort Worth 2013), aff’d, 437 S.W.3d 498 (Tex. 2014).

      Courts may consider conduct both before and after the Department removed
the child from the home. See Avery, 963 S.W.2d 550, 553 (Tex. App.—Houston

                                          7
[1st Dist.] 1997, no writ) (considering persistence of endangering conduct up to
time of trial); In re A.R.M., No. 14–13–01039–CV, 2014 WL 1390285, at *7 (Tex.
App.—Houston [14th Dist.] Apr. 8, 2014, no pet.) (mem. op.) (considering pattern
of criminal behavior and imprisonment through trial).

      B.     Application

             1.    Drug use
      A parent’s drug use can qualify as a voluntary, deliberate, and conscious
course of conduct endangering the child’s well-being. See S.R., 452 S.W.3d at 361;
In re C.A.B., 289 S.W.3d 874, 885 (Tex. App.—Houston [14th Dist.] 2009, no
pet.). Continued illegal drug use after a child’s removal is conduct that jeopardizes
parental rights and may be considered as establishing an endangering course of
conduct. S.R., 452 S.W.3d at 361–62; 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.) (en banc).

      Father was tested for drugs on September 22, 2014, soon after the
Department received the referral about Adam’s safety. He tested positive by hair
follicle for amphetamines, methamphetamines, and marijuana. He was tested again
three months later, just after Adam was removed. The amphetamine and
methamphetamine levels were both higher than they were on his September drug
test, and the marijuana level was lower. That pattern generally continued through
February 10, 2015 (all amounts are picograms per milligram [pg/mg]):

                            Amphetamine       Methamphetamine       Marijuana

September 22, 2014              584               10,031               0.99

December 22, 2014              3,758              21,752                1.0


                                          8
January 8, 2015                7,282               47,464             0.4

February 10, 2015              6,779           More than 50,000       0.2


Father also tested positive for hydrocodone on February 10, 2015.

      These numbers suggest Father continued to take amphetamines and
methamphetamines despite the Department’s instruction (while the case was in
Family Based Safety Services) and a court order (after Adam was removed) not to
use drugs. Although Father testified the last time he used those drugs was in
January, the test results appear to belie his testimony.

      In June 2015, Father’s hair follicle tests were negative for amphetamines and
marijuana; his methamphetamine level was 2,104 pg/mg. He tested negative for all
three substances in September 2015 and thereafter.

             2.     Criminal history
      Evidence of criminal conduct, convictions, or imprisonment is relevant to a
review of whether a parent engaged in a course of conduct that endangered the
well-being of the child. A.S. v. Tex. Dep’t of Family & Protective Servs., 394
S.W.3d 703, 712–13 (Tex. App.—El Paso 2012, no pet.).

      Twenty-eight years old at the time of trial, Father has an extensive criminal
history as an adult. The first conviction in the record is from October 2006, when
he was 19 years old, for possession of marijuana. In March 2008, he pleaded guilty
to possession of a dangerous drug, Carisoprodol. Two months later, he pleaded
guilty to unauthorized use of a motor vehicle. He received deferred adjudication
community supervision but was adjudicated guilty in January 2009. Father was
convicted of reckless driving (speeding through a parking lot) in July 2010. In



                                           9
September 2012 and again in April 2013, he was convicted for two thefts. Finally,
in September 2013, he pleaded guilty to evading arrest or detention.

               3.   Conclusion on endangerment
       Father has a demonstrated history of substance abuse before Adam was
removed. Test results show he continued and increased his use of amphetamines
and methamphetamines after removal, despite having been ordered by the court to
refrain from using drugs. He also has a lengthy criminal history. Several of his
convictions are for drug-related offenses and/or reckless behavior.

       Considered in the light most favorable to the trial court’s finding, the
evidence is legally sufficient to support the trial court’s determination that
termination of Father’s parental rights was justified under section 161.001(1)(E) of
the Family Code. Further, in view of the entire record, we conclude the disputed
evidence is not so significant as to prevent the trial court from forming a firm
belief or conviction that termination was warranted under section 161.001(1)(E).
Accordingly, we conclude the evidence is factually sufficient to support the
161.001(1)(E) finding.

       In light of our conclusion regarding the trial court’s finding on subsection E,
we need not make a determination as to its finding on subsection O. See A.V., 113
S.W.3d at 362. We overrule Father’s first two issues.

III.   Best interest
       In his third issue, Father asserts the evidence is legally and factually
insufficient to support the trial court’s finding that termination of his parental
rights is in Adam’s best interest. We review the entire record in deciding a
challenge to the court’s best-interest finding. In re E.C.R., 402 S.W.3d 239, 250
(Tex. 2013).

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      Termination must be in the child’s best interest. Tex. Fam. Code Ann.
§ 161.001(2). There is a strong presumption that the best interest of a child is
served by keeping the child with the child’s parent. In re R.R., 209 S.W.3d 112,
116 (Tex. 2006) (per curiam). Prompt, 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).

      Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best-interest finding: the desires of the
child; the physical and emotional needs of the child now and in the future; the
emotional and physical danger to the child now and in the future; the parental
abilities of the persons seeking custody; the programs available to assist those
persons seeking custody in promoting the best interest of the child; the plans for
the child by the individuals or agency seeking custody; the stability of the home or
proposed placement; acts or omissions of the parent that may indicate the existing
parent-child relationship is not appropriate; and any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). As noted, this
list of factors is not exhaustive, and evidence is not required on all the factors to
support a finding that termination is in the child’s best interest. In re D.R.A., 374
S.W.3d 528, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

      In addition, the Family Code sets out thirteen factors to be considered in
evaluating a parent’s willingness and ability to provide the child with a safe
environment. See Tex. Fam. Code Ann. § 263.307(b). Those factors are: (1) the
child’s age and physical and mental vulnerabilities; (2) the frequency and nature of
out-of-home placements; (3) the magnitude, frequency, and circumstances of harm
to the child; (4) whether the child has been the victim of repeated harm after the
initial report and intervention by the Department; (5) whether the child is fearful of

                                         11
living in or returning to the child’s home; (6) the results of psychiatric,
psychological, or developmental evaluations of the child, the child’s parents, other
family members, or others who have access to the child’s home; (7) whether there
is a history of abusive or assaultive conduct by the child’s family or others who
have access to the child’s home; (8) whether there is a history of substance abuse
by the child’s family or others who have access to the child’s home; (9) whether
the perpetrator of the harm to the child is identified; (10) the willingness and
ability of the child’s family to seek out, accept, and complete counseling services
and to cooperate with and facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive
environmental and personal changes within a reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting skills, including
providing the child with: (a) minimally adequate health and nutritional care;
(b) care, nurturance, and appropriate discipline consistent with the child’s physical
and psychological development; (c) guidance and supervision consistent with the
child’s safety; (d) a safe physical home environment; (e) protection from repeated
exposure to violence even though the violence may not be directed at the child; and
(f) an understanding of the child’s needs and capabilities; and (13) whether an
adequate social support system consisting of an extended family and friends is
available to the child. Id.; R.R., 209 S.W.3d at 116.

      A.     Adam and his foster parents
      Department caseworker Marie Youngblood testified about Adam and his
foster family:

      It’s a nice home, not just physically but environmentally, socially,
      emotionally as well. They care for him really well. He calls them
      mom and dad. They are very emotional with him, hugs, kisses. They
      are very attentive. They make sure he stays up on his medical and

                                          12
      dental. And they go on vacations, things like that. They are caring
      foster parents.

In addition to Adam, the foster parents have two biological children, ages 9 and 7,
and another foster child, an infant. The foster father, David, said the biological
children “adore” Adam, and “he is the object of much of their attention. They do
very well with him. He calls them Yaya and Bubba. They are very close.” The
family had vacationed at Disney World a few weeks before trial.

      B.     Father
      Endangerment. The evidence that Father endangered Adam is relevant to
the best-interest analysis. S.R., 452 S.W.3d at 366. Abuse of drugs is “hard to
escape,” and the trial court as fact-finder is “not required to ignore a long history of
dependency . . . merely because it abates as trial approaches.” In re M.G.D., 108
S.W.3d 508, 513–14 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

      Court-ordered services. Father moved to another city for several months in
2015, and there was evidence he did so to get away from Mother, who continued to
use drugs and was not completing the services necessary to regain custody of
Adam. The Department arranged for Father to have a courtesy worker in that city
to assist him in completing the services required by the court-ordered family
service plan. The record suggests gaps in communication and other logistical
mistakes by the Department resulted in Father’s not being able to attend required
classes and assessments. In the fall of 2015, Father moved back to Houston and
completed most of the required services at his own expense. He was still
participating in individual therapy at the time of trial; he was reportedly
progressing and doing well. The therapist indicated, however, that he was not sure
where Father was with his drug problem or in dealing with Adam. The caseworker
testified that completion of Father’s therapy would depend on the final

                                          13
determinations of the therapist and a substance abuse counselor. On appeal, Father
does not challenge the trial court’s denial of his motion for continuance. On this
record, the trial court reasonably could have found that Father’s rehabilitation was
not sure to continue. In re M.G.D., 108 S.W.3d at 514 (“[E]vidence of a recent
turnaround should be determinative only if it is reasonable to conclude that
rehabilitation, once begun, will surely continue.”).

      Home environment and employment. Father got married a few months
before trial. He, his wife, and her two children live in a two-bedroom apartment.
He works as the head of the maintenance department for his apartment complex.

      Willingness to parent. By all accounts, Adam loves Father and is always
happy to see him. Youngblood testified Adam and Father play together during
visits. She said Father pays attention to and engages with Adam during the visits
and makes sure Adam does not hurt himself. Father sometimes called his wife and
stepchildren during a visit so Adam could speak with them. David testified Adam
does not experience any problems after returning from a visit with Father.

      C.     Conclusion on best interest
      Undisputed evidence shows Adam has flourished in the year he has been in
foster care. His foster parents want to adopt him. The record also shows that Father
has a stable home and job, is doing well in therapy, has discontinued his drug use
since February 2015, and interacts very well with Adam. Still, Father has a history
of endangering Adam through continued substance abuse and criminal activity.
Although a reasonable fact-finder could look at Father’s progress and decide that it
justified the risk of keeping him as a parent, we cannot say the trial court acted
unreasonably in finding that Adam’s best interest lay elsewhere. In re M.G.D., 108
S.W.3d at 514. It is not our role to reweigh the evidence on appeal, and we may not


                                         14
substitute our judgment of Adam’s best interest for the considered judgment of the
fact-finder. See id. at 531 (Frost, J., concurring in judgment).

      Having considered the evidence under the applicable standards of review,
we conclude the evidence is legally and factually sufficient to support a firm belief
or conviction that, as the trial court found, termination of Father’s parental rights is
in Adam’s best interest. We overrule Father’s third issue.

                                    CONCLUSION
      We affirm the trial court’s judgment.




                                        /s/    J. Brett Busby
                                               Justice



Panel consists Justices Busby, Donovan, and Wise.




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