Opinion issued October 23, 2018




                                       In The

                                Court of Appeals
                                      For The

                           First District of Texas
                              ————————————
                               NO. 01-18-00395-CV
                             ———————————
                      IN THE INTEREST OF G.A., A CHILD



                      On Appeal from the 313th District Court
                              Harris County, Texas
                        Trial Court Case No. 2017-02734J


                           MEMORANDUM OPINION

      After a bench trial, the trial court terminated a mother’s parental rights to her

child. The mother appeals, arguing that the evidence of the grounds for termination

and of the child’s best interest was legally and factually insufficient.1 We affirm the

termination decree.


1
      See TEX. FAM. CODE § 161.001(b)(1)–(2).
                                    Background

      In May 2017, the Texas Department of Family and Protective Services

received a report alleging A.R., pseudonymously referred to as Angela, had become

incapacitated due to drug use while caring for her five-month-old daughter, G.A.,

pseudonymously referred to as Graciella. Angela and Graciella were at the Santa

Maria Hostel, a women’s recovery home where Angela was receiving aftercare for

substance abuse following completion of a court-ordered residential treatment

program. A. Murphy, a Santa Maria staff member, found Angela leaning against a

cabinet. According to Murphy, Angela was unconscious and Graciella, who was

wrapped in an infant carrier on Angela’s chest, was pinned between Angela and the

cabinet. Murphy removed Graciella from the wrap and assisted Angela to a couch,

where Angela remained unresponsive until emergency responders arrived.

      The Department investigated and, asserting there was an immediate danger to

Graciella’s physical health or safety, sought appointment as Graciella’s temporary

managing conservator based on Angela’s drug use and history of family-based

services. The Department’s petition included an allegation of a similar incident in

August 2011, when Angela purportedly took Vicodin and lost consciousness while

caring for another child.2 The Department sought to terminate Angela’s parental



2
      Angela has three children: (1) Graciella, (2) a seven-year-old daughter who was the
      subject of the August 2011 report and to whom Angela relinquished her parental
                                           2
rights to that child; however, Angela relinquished her parental rights, and a family

member adopted the child.

      About two weeks after the Santa Maria incident, the trial court conducted an

adversary hearing at which Angela personally appeared. The trial court made the

Department Graciella’s temporary managing conservator and ordered Angela to

comply with a family-service plan and submit to immediate drug testing. Angela

tested positive for hydrocodone and methadone, a prescription drug used to combat

opioid addiction.

      For most of this case, the Department’s primary goal was family reunification,

and Angela worked to complete the family services ordered by the court, such as

submitting to a psychosocial evaluation, attending parenting classes and Alcoholics

Anonymous/Narcotics Anonymous meetings, visiting with Graciella, and

participating in individual therapy and substance-abuse counseling. Although

Angela continued to test positive for methadone, which she obtained from a clinic

with a valid prescription and used under medical supervision, she did not test

positive for any other controlled substance during the pendency of the case.

      As trial approached, however, the Department’s primary goal changed to

termination of parental rights and unrelated adoption. The evidence presented to the



      rights, and (3) an adult son who lives independently. The record does not indicate
      whether Angela’s son ever was the subject of a Department investigation or suit.
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trial court showed that even though Angela had completed her family-service plan,

the Department had lingering concerns about returning Graciella to Angela’s care.

      D. Tate, the assigned caseworker, explained that the goal of any

family-service plan is to assist the parent in acquiring and demonstrating the skills

necessary to safely and appropriately parent her child. For Angela, it was the

Department’s desire that Angela demonstrate the willingness to protect Graciella

from harm, ability to meet Graciella’s emotional and developmental needs,

prioritization of Graciella’s needs, and assembly of a stable support system. But in

Tate’s view, Angela had not achieved these objectives. For example, although

Angela completed two parenting classes, Tate found Angela to be “all over the

place” during visitation with Graciella. And Angela engaged in several behaviors

that Tate deemed inappropriate or unsafe for visitation, including failing to

appropriately supervise Graciella, forcing Graciella to eat food directly from

Angela’s mouth, and utilizing a lighter as a toy.

      Angela’s history of drug use also concerned the Department. Angela

acknowledged that she had relapsed at least three times after participating in and

completing substance abuse treatment in the past. She testified that she had been

abusing drugs for at least five years, but her self-reporting suggested a longer history

of drug use. Angela confessed to an evaluator that she had used cocaine for more

than ten years and became addicted to Vicodin while suffering from pain associated


                                           4
with cocaine withdrawal. The Department presented evidence confirming Angela’s

cocaine use in February and March 2013, which, according to Angela, was the last

year she used cocaine. The record also includes opioid-positive drug test results in

October 2013 and May 2017 with no evidence of a valid prescription for those dates.

      At the time she lost consciousness at Santa Maria, Angela acknowledged

taking as many as ten Vicodin per day. Although she disputed the severity of the

Santa Maria incident and the risk of harm to Graciella, Angela admitted that, on that

day, she was only recently out of court-ordered residential treatment for substance

abuse, was still receiving aftercare, and had voluntarily combined her prescription

methadone with Norco, another form of hydrocodone. A counselor specializing in

the treatment of opioid-dependent mothers testified that methadone and Norco

should not be taken together and, if they are, may cause an overdose or deep sleep.

      The trial court heard testimony and reviewed documentary evidence that

Angela’s history of drug use had led to multiple incarcerations. In the year Graciella

was born, Angela was charged with and imprisoned on two offenses involving

controlled substances. More specifically, Angela pleaded guilty to two counts of

possession of a controlled substance and was sentenced to 34 days in jail.

      At trial, Angela asked the trial court not to terminate her parental rights

because she had made progress toward sobriety and acquiring parenting skills, which

her therapist D. Bradley confirmed. Bradley worked with Angela in individual


                                          5
counseling, substance abuse counseling, and parenting classes. Bradley testified that

Angela was responsive, cooperative, and truthful in therapy, and had taken steps

toward reunification. For example, Angela had been sober for nine months, had

completed counseling, was living with her parents, and had secured two part-time

jobs. Although Bradley recognized the risk that Angela would relapse, even while

taking methadone, she believed that Angela could make sufficient progress to be

reunited with Graciella if Angela was given more time and additional services.

      Angela also expressed to the trial court her desire that Graciella be placed with

Angela’s brother and sister-in-law. The trial court heard evidence, however, that

Angela’s request could not be accommodated because her family had elected not to

participate in required drug testing. Instead, Graciella had been placed in an adoptive

foster home. In the eleven months Graciella resided in the foster home, she had

bonded with the foster family, and her medical and developmental needs were being

met there. Graciella’s foster mother testified about her future wishes for Graciella—

that she would pursue an education and a profession—and pledged to provide a safe,

stable home until Graciella was at least 18 years old.

      At the end of trial and after considering all the evidence, the trial court

terminated Angela’s parental rights on the grounds advocated by the Department.

The trial court’s termination decree includes findings that Angela engaged in the

predicate acts listed in Family Code Sections 161.001(b)(1)(D) (endangering


                                          6
conditions), (E) (endangering conduct), (O) (failure to comply with court-ordered

family service plan), and (P) (using controlled substance after completing

court-ordered    program     for   substance    abuse).    See   TEX.       FAM.   CODE

§ 161.001(b)(1)(D), (E), (O), (P). The trial court also made the Department

Graciella’s sole managing conservator.

                           Termination of Parental Rights

      Angela presents four sufficiency issues on appeal. She contends the evidence

is legally and factually insufficient to support the trial court’s findings that she

committed predicate acts or omissions under Subsections (D), (E), (O), and (P) and

that termination of her parental rights was in Graciella’s best interest.

A.    Standard of review

      A parent’s rights to the care, custody, and control of her child is a precious

liberty interest protected by the Constitution. Santosky v. Kramer, 455 U.S. 745,

758–59 (1982); see In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). Accordingly, a

termination proceeding is strictly scrutinized on appeal. Holick v. Smith, 685 S.W.2d

18, 20 (Tex. 1985). Clear and convincing evidence must support the decision to

terminate parental rights. In re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002); see

Santosky, 455 U.S. at 747–48. Evidence is legally sufficient if it is “such that a

factfinder could reasonably form a firm belief or conviction about the truth of the

matter on which the [Department] bears the burden of proof.” J.F.C., 96 S.W.3d at


                                           7
265–66; see TEX. FAM. CODE § 101.007 (defining “clear and convincing evidence”

as “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”).

We review “the evidence in the light most favorable to the judgment,” meaning that

we “must assume that the factfinder resolved disputed facts in favor of its finding if

a reasonable factfinder could do so.” J.F.C., 96 S.W.3d at 266. “If, after conducting

its legal sufficiency review of the record evidence, a court determines that no

reasonable factfinder could form a firm belief or conviction that the matter that must

be proven is true, then that court must conclude that the evidence is legally

insufficient.” Id.

       In a factual sufficiency review, we consider the entire record, including

evidence both supporting and contradicting the finding. See id.; In re C.H., 89

S.W.3d 17, 25–26 (Tex. 2002). “‘If, in light of the entire record, the disputed

evidence that a reasonable factfinder could not have credited in favor of the finding

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

conviction, then the evidence is factually insufficient.’” In re H.R.M., 209 S.W.3d

105, 108 (Tex. 2006) (per curiam) (quoting J.F.C., 96 S.W.3d at 266).

       In a proceeding to terminate the parent-child relationship, the Department

must establish by clear and convincing evidence that one or more of the predicate

acts or omissions listed in the Family Code occurred and that termination is in the


                                           8
best interest of the child. TEX. FAM. CODE § 161.001(b). Both elements must be

established, and termination may not be based solely on the best interest of the child

as determined by the trier of fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d

531, 533 (Tex. 1987).

B.    Section 161.001(b)(1) predicate findings

      The trial court terminated Angela’s parental rights on predicate findings that

she (1) knowingly placed or knowingly allowed Graciella to remain in conditions or

surroundings that endangered Graciella’s physical or emotional well-being;

(2) engaged in conduct or knowingly placed Graciella with people who engaged in

conduct that endangered Graciella’s physical or emotional well-being; (3) failed to

comply with the provisions of a court order that specifically established the actions

necessary for her to obtain Graciella’s return; and (4) continued to abuse a controlled

substance after completion of a court-ordered treatment program. See TEX. FAM.

CODE § 161.001(b)(1)(D)–(E), (O), (P). “Only one predicate finding under [S]ection

161.001(b)(1) is necessary to support a judgment 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). We begin with the Subsection (E) endangerment finding.

      The predicate act of endangerment is satisfied if the parent has “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[.]”   Id.


                                           9
§ 161.001(b)(1)(E). In this context, “endanger” means to expose to loss or injury or

to jeopardize. Boyd, 727 S.W.2d at 533. The term means “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 be directed at the child or that

the child actually suffers injury.” Id. To determine whether termination is

appropriate, courts may look to parental conduct both before and after the child’s

birth. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). The conduct need not occur in

the child’s presence, and it may occur “both before and after the child has been

removed by the Department.” Walker v. Tex. Dep’t of Family & Protective Servs.,

312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

      The Texas Supreme Court has acknowledged that “a parent’s use of narcotics

and its effect on his or her ability to parent may qualify as an endangering course of

conduct.” J.O.A., 283 S.W.3d at 345. Drug activity can constitute endangerment

even if it transpires outside the child’s presence. Boyd, 727 S.W.2d at 533; see

J.O.A., 283 S.W.3d at 345; Walker, 312 S.W.3d at 617.

      Much of the evidence regarding Angela’s history of drug use is not disputed.

This case began when Angela combined hydrocodone and methadone, causing her

to lose consciousness while Graciella was bound to her chest. Angela concedes that

this incident, which occurred not long after she completed court-ordered residential

treatment for substance abuse, risked physical injury to Graciella and was “troubling


                                          10
to the point where immediate intervention was necessary,” but she disagrees that the

evidence sufficed to show endangering conduct under Subsection (E). The

Department counters that Angela takes too narrow a view of the evidence, and we

agree with the Department.

      The record contains evidence of a long history of drug use, treatment, and

relapse. Angela self-reported abusing cocaine for more than a decade. She tested

positive for cocaine in February and March 2013. According to her own testimony,

Angela stopped using cocaine in 2013 but then became addicted to Vicodin. When

this case began, Angela admitted taking as many as ten Vicodin pills per day. Her

attempts to address her addiction are commendable—she has participated in and

completed substance abuse treatment at least three times. But she has relapsed on

each occasion, which supports an inference that she may relapse again in the future.

See In re M.M., No. 02-08-00029-CV, 2008 WL 5195353, at *6 (Tex. App.—Fort

Worth Dec. 11, 2008, no pet.) (mem. op.).

      The adverse effect of Angela’s drug use on her ability to parent is also

established by the evidence of more than one intervention by the Department and

periods of incarceration. That is, Graciella is the second of Angela’s children to

become the subject of Department intervention, and she is the second of Angela’s

children to be put at risk of physical injury due to drug use. Only months before




                                        11
Graciella was born, Angela pleaded guilty to and was incarcerated on two drug

possession charges.

      Angela asserts that the evidence of endangering conduct is fatally undermined

by evidence that she has “been progressing in her therapy with her counselor” and

“will eventually demonstrate that she can be protective” of Graciella. Such evidence

of improved conduct, especially of short-duration, does not preclude the trial court

from reasonably forming a firm belief that Angela’s acts or omissions under

Subsection (E) supported termination. See J.O.A., 283 S.W.3d at 346 (“While the

recent improvements made by [the parent] are significant, evidence of improved

conduct, especially of short-duration, does not conclusively negate the probative

value of a long history of drug use and irresponsible choices.”).

      Viewing the evidence in the light most favorable to the termination, we hold

that the trial court reasonably could have formed a firm belief or conviction of

endangerment and, therefore, the evidence was legally sufficient. See id. at 345;

Walker, 312 S.W.3d at 617. We further hold that, viewed in light of the entire record,

any disputed evidence was not so significant that the trial court could not reasonably

have formed a firm belief or conviction of endangerment. Accordingly, we hold that

the evidence was factually sufficient to support the trial court’s finding under

Subsection (E). See TEX. FAM. CODE § 161.001(b)(1)(E).




                                         12
      We overrule Angela’s first issue challenging the sufficiency of the evidence

supporting the trial court’s Subsection (E) endangerment finding. Because we have

found that the evidence is both legally and factually sufficient to support the

predicate finding under Subsection (E), we need not address Angela’s issues

challenging the sufficiency of the evidence for alternative predicate findings under

Subsections (D), (O), and (P). See A.V., 113 S.W.3d at 362. We next turn to the

best-interest finding.

C.    Section 161.001(b)(2) best-interest finding

      A strong presumption exists that a child’s best interest is served by preserving

the parent-child relationship. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006); In re

L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Prompt

and permanent placement of the child in a safe environment is also presumed to be

in the child’s best interest. TEX. FAM. CODE § 263.307(a). In determining whether

termination of a mother’s parental rights is in a child’s best interest, we consider

several nonexclusive factors, including (1) the child’s desires, (2) the current and

future physical and emotional needs of the child, (3) the current and future physical

danger to the child, (4) the parental abilities of the person seeking custody,

(5) whether programs are available to assist the person seeking custody to promote

the best interests of the child, (6) plans for the child by the person seeking custody,

(7) the stability of the home or proposed placement, (8) acts or omissions of the


                                          13
parent that may indicate 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 is not required to prove all these factors, and the

absence of evidence about some factors does not preclude the factfinder from

reasonably forming a strong conviction that termination is in the child’s best interest.

See C.H., 89 S.W.3d at 27. Evidence establishing one of the predicate acts under

Section 161.001(b)(1) also may be relevant to determining the child’s best interest.

See id. at 27–28.

      Several Holley factors support the trial court’s finding that termination was in

Graciella’s best interest. Because Graciella was only sixteen months old at the time

of trial, she was too young to express her desires. But the trial court could consider

that Graciella has bonded with her foster family, is well cared for by them, and has

spent minimal time with Angela. See In re J.D., 436 S.W.3d 105, 120 (Tex. App.—

Houston [14th Dist.] 2014, no pet.) (“Stability and permanence are paramount in the

upbringing of children.”). Graciella has been in the same foster home since she came

into the Department’s care at the tender age of five months. The evidence was

undisputed that the foster home is drug-free, safe, stable, and includes the possibility

of adoption. See Rogers v. Dep’t of Family & Protective Servs., 175 S.W.3d 370,

378 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d w.o.j.) (concluding that

successful foster placement with possibility of adoption supported best-interest


                                          14
finding); In re Z.C., 280 S.W.3d 470, 476 (Tex. App.—Fort Worth 2009, pet. denied)

(affirming best-interest finding when child was thriving in foster care). Angela

agrees that the foster home is meeting Graciella’s present physical and emotional

needs. Although Angela argues that it would be speculative to conclude that the

foster home will continue to meet Graciella’s needs in the future, the record does not

support that argument. The trial court heard testimony that Graciella’s foster family

is invested in her growth and planning for her future. This evidence relevant to the

first, second, and sixth Holley factors supports the trial court’s termination decision.

      The evidence discussed in support of the endangerment finding also supports

the trial court’s termination decision. See C.H., 89 S.W.3d at 28. Graciella came into

the Department’s care because Angela took an incapacitating combination of drugs

while Graciella was bound to her body—a circumstance that, according to more than

one trial witness, risked serious physical injury to Graciella. And the trial court heard

evidence that this was not the first time Angela had become incapacitated because

of drug use while caring for a young child. Although Angela testified that she

stopped using opioids in May 2017 and had only tested positive for methadone since

that time, her testimony established a history of relapse after periods of sobriety. The

trial court could reasonably infer from this evidence that Angela was at risk for

continuing drug use. See In re W.J.B., No. 01-15-00802-CV, 2016 WL 1267847, at

*9 (Tex. App.—Houston [1st Dist.] Mar. 31, 2016, no pet.) (mem. op.) (stating that


                                           15
“evidence of past misconduct or neglect can be used to measure a parent’s future

conduct”); In re L.G.R., 498 S.W.3d 195, 204 (Tex. App.—Houston [14th Dist.]

2016, pet. denied) (parent’s drug use supports finding that termination is in best

interest of child). Such inference is relevant not only to Graciella’s present and future

emotional and physical needs and dangers but also to the stability of Angela’s home,

as contrasted with the stability of Graciella’s foster home. See In re J.M., No. 01-14-

00826-CV, 2015 WL 1020316, at *7 (Tex. App.—Houston [1st Dist.] Mar. 5, 2015,

no pet.) (mem. op.). Consequently, the third, fourth, and seventh Holley factors also

weigh in favor of termination.

      The Department also presented evidence that Angela’s visits with Graciella

were not always appropriate. Department caseworker Tate described Angela as “all

over the place” during visitation. On one occasion, Angela held Graciella down and

fed Graciella food from Angela’s mouth, a practice Tate explained was unhygienic.

Tate also testified about other concerning conduct during visitation, including when

Angela used a lighter as a toy.3 This is additional evidence indicating an

inappropriate parent-child relationship in support of the trial court’s termination

decision under the eighth Holley factor.




3
      Tate also generally described an incident during which Angela photographed
      Graciella after removing her clothing. Tate’s testimony does not provide any
      additional context for her opinion that this action was inappropriate.
                                           16
      Angela emphasizes that, at the time of trial, she was employed, albeit

part-time; had stable housing with her parents; and had completed parenting classes

and counseling. And the testimony of Bradley, Angela’s therapist, supports that

Angela was engaged in family services and making progress, even if additional

counseling was required before Graciella could be returned to Angela’s care. This is

some evidence that Angela is amenable to availing herself of programs that can

improve her parenting and weighs against termination under the fifth Holley factor.

See Horvatich v. Tex. Dep’t of Protective & Regulatory Servs., 78 S.W.3d 594, 603

(Tex. App.—Austin 2002, no pet.) (reversing and remanding termination suit based

on factually insufficient evidence of best interest and noting that “passage of time”

may afford parent opportunity to better demonstrate parenting ability). But this

evidence is not so significant that the trial court could not have reasonably formed a

firm belief or conviction that termination was in Graciella’s best interest in light of

all other evidence. See Wyatt v. Dep’t of Family & Protective Servs., 193 S.W.3d

61, 69 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (rejecting argument that

children’s best interest would be served by keeping them in foster care indefinitely

until reunification could be achieved in lieu of termination because such indefinite

placement “fails to recognize the children’s need for stability and permanency”).

      Considering the entire record, we hold that the evidence is legally and

factually sufficient to support the trial court’s finding that termination of Angela’s


                                          17
parental rights was in Graciella’s best interest. We overrule Angela’s fourth issue

challenging the sufficiency of the evidence to support the best-interest finding.

                                    Conclusion

      We affirm the decree terminating parental rights.




                                              Harvey Brown
                                              Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.




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