                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-08-275-CV

IN THE INTEREST OF
M.M. and J.M., CHILDREN

                                     ------------

           FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                     ------------

                         MEMORANDUM OPINION 1

                                     ------------

      Appellants J.M. (Father) and S.P. (Mother) appeal from the termination

of their parental rights to children M.M. and J.M. Because we hold that the

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

endangerment findings underlying the termination of Father’s rights,2 factually

sufficient to support the trial court’s best interest finding underlying the

termination of Father’s rights,3 and legally and factually sufficient to support the


      1
          … See Tex. R. App. P. 47.4.
      2
          … See Tex. Fam. Code Ann. § 161.001(1)(D), (E) (Vernon 2008).
      3
          … See id. § 161.001(2).
trial court’s best interest finding underlying the termination of Mother’s rights,4

we affirm the trial court’s judgment.

      The following evidence was admitted at trial. In the early afternoon of

December 9, 2006, after a CPS case had already been pending about fifteen

months regarding Mother’s older daughter, M.W., CPS investigator Tomika

Hardin made an unannounced visit to Mother’s home to evaluate it for M.W.’s

possible return from foster care. Because M.W. had had a serious bacterial

infection that Mother had failed to properly take care of, some of M.W.’s

fingers and parts of her legs had had to be amputated. She needed a sterile,

clean environment because of her special needs.

      When Hardin arrived at the home, the front door was open. Mother was

in her pajamas and M.M., about two years old at the time, came to the door

naked. Mother explained that she was potty-training M.M. Hardin saw J.M.,

about three to four months old at the time, asleep on a mattress on the floor

with a bottle propped up in his mouth. Hardin explained to Mother that it was

not safe or healthy to prop a bottle in the baby’s mouth, and Mother stated that

she did not normally do so and took the bottle out of his mouth.




      4
          … See id.

                                        2
      Hardin observed that the floor had many stains on it. In the living room,

she found a bowl with pizza in it; in the kitchen, she saw a roach infestation

and pizza boxes. She saw fist-sized holes in the walls, trash on the floors, food

and junk in the baby crib, a dark black ring in the bathtub, and piles of trash on

the patio. Based on the conditions she found, Hardin reported the situation to

CPS to investigate, and the plan for M.W. changed from family reunification to

termination. At that point in time, Mother had not completed the services CPS

had asked her to complete in M.W.’s case. Mother’s parental rights to M.W.

were ultimately terminated based on subsections (D) and (E) of section 161.001

of the family code. 5

      The day after Hardin’s visit, CPS investigator Sandy Balderas and a co-

worker visited the home in response to Hardin’s referral. Upon entering the

home, Balderas smelled a strong odor of marijuana and saw some marijuana on

top of the television set. Mother, dressed in her pajamas and sporting heavy

eyes, admitted that she had smoked marijuana about two hours before the visit

and also stated that she smoked marijuana twice a day.




      5
       … See id. § 161.001(1)(D), (E); see also In re M.W., No. 02-07-00077-
CV, 2008 WL 624030, at *7 (Tex. App.—Fort Worth Mar. 6. 2008, no pet.)
(affirming termination).

                                        3
      M.M. was again naked; Mother again said that she was potty-training

M.M. J.M. was lying on the couch with a bottle propped over his mouth.

Balderas saw no injuries on the children but observed that they were unkempt.

      In the kitchen, flies buzzed around a pot of spaghetti on the stove, and

Balderas also saw empty pizza boxes and roaches. Bare mattresses and clothes

lay on the bedroom floors. Balderas saw fist-sized holes in the walls and trash

throughout the house, and the back porch was full of trash.

      Father showed up during Balderas’s visit and started taking the trash to

the dumpster. He indicated that he and Mother were separated but trying to

“work things out” and that he stayed in the home on weekends. He admitted

that he knew of Mother’s marijuana use; he denied any drug use on his part but

stated that he drank alcohol on weekends.

      Concerned about the safety of the home and Mother’s ability to take care

of the children due to her marijuana use, Balderas placed the children on that

same day with their paternal grandmother. Balderas explained to the parents

that while the children were staying with a relative, CPS would offer the

parents services to reduce the identified risks to the children. The parents

would be allowed contact with the children, but it would need to be supervised

by the relative who had possession of them. The parents indicated that they

understood, agreed, and were willing to “work[] the services,” which included

                                      4
obtaining and maintaining stable housing and employment and completing

parenting classes, counseling, and psychological evaluations.

      Meanwhile, after the placement with their paternal grandmother fell

through, M.M. and J.M. were placed with an aunt and then a family friend.

The family friend relinquished custody. After he notified CPS, Tomika Hardin

found the children in a home with many people, including Mother, and no

supervision, despite the agreement that the parents were to be supervised.

CPS removed the children from that home because Mother did not follow the

safety plan. Father admitted to Hardin in a telephone call after the removal that

he knew that he and Mother were violating the safety plan by allowing his

sister to babysit the children and allowing Mother to be with the children

without supervision.

      For the first few months after CPS’s intervention regarding M.M. and

J.M., Mother and Father were sluggish in completing their services. Mother

started drug treatment and completed CATS classes but did not get a stable job

or stable housing or complete parenting classes or individual counseling.

      Finally, in July 2007, five months after her rights to M.W. were

terminated, Mother began parenting classes, which she completed in August.

Mother attended one or two sessions of individual counseling through Positive

Influences from October to December 2007 but was discharged for lack of

                                       5
attendance.   Mother told Hardin that she lost two jobs from the time the

children were removed until October 2007 at least partially because she was

trying to complete services.

      Mother began working at Lisa’s Chicken in December 2007, still worked

there at trial, and completed most of her services while so employed. Mother

restarted individual counseling in March 2008.

      Father blamed Mother for the children’s removal from the home, denying

any responsibility. From the time of the removal until March 2007, he would

not take a drug test and did not complete any services.     He attended one

session of individual counseling (after missing two prior opportunities) in

December 2007 at the Metropolitan Center for Counseling but did not attend

anger management classes set up at the same location and during the same

period.

      In December 2007, Father changed jobs. The reason he gave was to

work services. He restarted individual counseling in March 2008. He finally

began parenting classes on April 17, 2008 and completed them on May 7,

2008. He never completed anger management classes.

      At trial, Hardin explained that even though she still had some concerns

about the parents’ continued drug use and their ability to keep a clean home,

she sought and obtained an extension beyond the one-year deadline (December

                                     6
2007) because at the time of the one-year deadline, the parents finally seemed

serious about wanting to regain custody of their children. She had several

meetings with them in which she emphasized what they needed to do to regain

custody, and the parents indicated that they understood what she was saying

and were willing to do whatever it took to get their children back.          But

ultimately, the parents did not aggressively pursue completing the services until

the last couple of months before trial. The parents’ delay in completing various

services until close to the trial date concerned Hardin because it indicated that

the children were a low priority to the parents.

      At the time of trial, the parents had not successfully completed all the

services. They had not demonstrated stable housing; Mother had lived in at

least six places from the first removal. Hardin visited the home Mother and

Father lived in less than two weeks before trial.     A dead roach was in the

freezer, chemicals were in a location that would be accessible to young

children, and trash and junk were outside the home. Additionally, as a one-

bedroom home, it did not appear to have adequate living space for the parents

and children.

      On May 30, four days before trial, Father and Mother completed a drug

assessment but refused to take a random drug test, even though Dr. Williams,

the psychologist who counseled them, told them that a refusal would be

                                       7
considered a positive drug test. Hardin, who was also present, testified that

Father’s refusal was extremely emotional. Both parents had also refused a drug

test in the past, but every test that they had actually taken had been negative.

      Additionally, on the second day of trial, Father was in jail in connection

with an August 2007 incident in which he had been arrested for assaulting his

brother; Father refused to attend the termination trial that day.

      Dr. Williams testified that Father needs to work on anger issues and on

being responsible. Dr. Williams also had concerns about Father’s drinking. Dr.

Williams smelled alcohol on Father’s breath on May 13, less than three weeks

before trial. Father at first denied drinking but later admitted it. Dr. Williams

recommended that Father have more substance abuse counseling before the

children could be returned to his care.

      Regarding Mother’s psychological status, Dr. Williams reported that she

admitted to past use of marijuana and “other products” and that she

acknowledged that the children were taken from her at least partially because

of her drug use, but she denied any drug use since her children were removed.

Dr. Williams testified that it would be difficult for Mother to safely parent

without restraints, guidelines, therapeutic intervention, or more counseling.

      Dr. Ildiko Balla, also a licensed psychologist, performed psychological

evaluations of the couple. They missed the first three scheduled appointments

                                          8
and arrived too late for the fourth appointment. Dr. Balla stated that Father

was guarded and defensive and had difficulty facing painful feelings. Dr. Balla

diagnosed Father with an Axis I adjustment disorder, anxiety, depression, and

cannabis dependence based on Father’s self-reporting of his past use of

marijuana (Father told Dr. Balla that he stopped using marijuana in January

2006). Dr. Balla opined that Father needs to deal with his anger issues, stay

clean, complete anger management classes, and continue counseling.

      Mother told Dr. Balla that she had used marijuana since she was thirteen

years old but had stopped when the children were removed in December 2006.

She also talked to Dr. Balla about M.W.’s case. She told Dr. Balla that M.W.

got sick with bacteria and that after long-term hospitalization, M.W. missed

follow-up appointments. Mother told Dr. Balla that M.W. still lagged behind

other children and that her fingers had been amputated. According to Dr. Balla,

Mother was defensive and did not accept any responsibility for M.W.’s

condition. Mother also reported that she did not bond with baby J.M. before

his removal.

      Dr. Balla opined that Mother was in complete denial about her issues. Her

diagnosis included an anxiety disorder, an adjustment disorder with depressed

mood, cannabis dependence, and a learning disorder. Dr. Balla recommended




                                      9
AA, substance abuse treatment, medicine, family counseling, filio therapy, play

therapy, and parenting classes.

      Of at least fifty-eight opportunities to visit with the children, Mother had

thirty-six visits; Father visited the children fifteen times out of fifty-eight

opportunities.   Mother testified that she had to cancel seven to ten visits

because of transportation issues but that she believed that CPS had cancelled

even more than that.      She testified that she thought her counseling and

parenting classes had helped her and that she was willing to do more

counseling and had told Dr. Williams so. She testified that she was going to

AA meetings and keeping in touch with her sponsors. Mother explained that

she did not take the Friday, May 30, 2008 drug test because she was worried

about transportation home and that Father did not take the test because he

needed to pick up his paycheck to pay rent on Sunday, the day before trial

began. She also explained that furniture had now been delivered to the house

where she and Father were living, that the old furniture and junk from outside

the home had been picked up, and that the refrigerator now contained food for

the children.

      Mother stated that she believed that she was a good mother and stable

and that she loves her children. She was on a waiting list for subsidized child

care, would be able to obtain food stamps, and worked thirty hours per week

                                       10
for $7.50 per hour. She did not appear to believe that continuing her education

or obtaining a GED would be that beneficial to the family because she was

already working.

      Mother admitted that she last smoked marijuana on December 19, 2007,

more than a year after the children’s removal, and that she did not aggressively

pursue completing her safety plan even though she was concerned that the

children were being abused in foster care. Additionally, regarding J.M., she

testified that four and a half months is not long enough for a child to bond.

      Hardin testified that even after Mother was made aware of M.M.’s severe

dental problems (M.M. had to have oral surgery performed on ten of her teeth

while she was in foster care) and was repeatedly told not to bring junk food to

the visits, Mother continued to bring such food to visits for more than a year,

stopping only in April 2008, two months before trial. In one visit, Hardin told

Mother not to give the children doughnuts because of M.M.’s dental problems

and J.M.’s stomach problems. Hardin left the visitation room and peeked back

in later. When she did, she saw that M.M. now had a lollipop. This behavior

was concerning to Hardin because of Mother’s medical neglect of M.W. when

she had a bacterial infection and because the behavior demonstrated that

Mother’s perception of her role and responsibility with the children had not

changed. Overall, after almost three years of CPS involvement, Hardin testified,

                                      11
the parents exhibited no durable change in behavior. They exhibited a lack of

consistency, a lack of stability, a lack of concern for the children, and a lack of

honesty.

      Marti Riedel, a licensed professional counselor, testified about M.M.

Riedel stated that M.M. is extremely bright, extremely strong-willed, and a

dominant individual.    Riedel opined that M.M. needs stability, a very strict

structure, and bright, motivated parents to challenge her.

      M.M. began therapy when she was almost three years old. Her foster

parents reported that she had extreme tantrums, was not sleeping or eating

well, had difficulty potty-training, wet herself day and night, and destroyed

property. (Mother testified that M.M. did not begin acting out until she was

placed in foster care and that the children were abused in foster care.) Riedel

testified that she noticed that M.M. had a great deal of anxiety regarding

relationships and family issues, including, initially, her sister’s amputated

fingers. One of the matters about which the little girl was anxious was having

two sets of parents. The counselor testified that this anxiety increased as the

trial date approached. She also testified that M.M., who improved over time,

regressed after visits with Mother and Father.

      The foster mother testified that M.M. and J.M. had lived with her for ten

months (since August 2007), that at first, M.M. stuttered, had temper tantrums

                                        12
and screaming fits, banged on the walls, slept poorly, had potty-training issues,

and bossed J.M. According to the foster mother, the behaviors subsided after

eight to twelve weeks, but after visits with her parents, M.M. would become

aggressive, start biting and hitting, throw fits and get upset, and have “potty”

accidents.

      According to the foster mother, M.M. did not notice when a visit with her

parents did not occur but was happy to go on visits. The foster mother also

testified, however, that M.M. told a friend that she “only ha[d] about two more

visits left and then [she would not] have to go anymore.” The foster mother

believed that M.M. might have misinterpreted something that she heard another

foster child say.

      J.M. was just over a year old when he came to the foster home. The

foster mother testified that at first, he was not very interactive, and he cried a

lot and wanted to be held, but he would also just sit without playing and was

delayed in speech. Early Childhood Intervention (ECI) worked with him about

six months, but at the time of trial, according to the foster mother, J.M. was

energetic, active, happy, and normal with no delays.

      Overall, the foster mother testified that M.M. and J.M. were thriving and

progressing in her home, that her home was structured and consistent, that she




                                       13
loves the children, that they are bonded and attached to her, and that she and

her husband would like to adopt them.

      Father did not testify.

      After hearing all the evidence, the trial court terminated the parents’

parental rights to M.M. and J.M. The termination decree contains the following

findings regarding Mother:

      8.1. The Court finds by clear and convincing evidence that
           [Mother] has

            8.1.1.       knowingly placed or knowingly allowed the child
                         to remain in conditions or surroundings which
                         endanger the physical or emotional well-being of
                         the child;

            8.1.2.       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;

            8.1.4.       had her parent-child relationship terminated with
                         respect to another child based on a finding that
                         the mother’s conduct was in violation of
                         § 161.001(1)(D) or (E), Texas Family Code . . . ;

            8.1.5.       constructively abandoned the children who have
                         been in the permanent or temporary managing
                         conservatorship of the Department of Family and
                         Protective Services or an authorized agency for
                         not less than six months and: (1) the Department
                         or authorized agency has made reasonable
                         efforts to return the children to the mother; (2)
                         the mother has not regularly visited or
                         maintained significant contact with the children;

                                      14
                         and (3) the mother has demonstrated an inability
                         to provide the children with a safe environment.

Mother does not challenge these findings. The trial court also found that the

termination of Mother’s parental rights would be in the children’s best interest.

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

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

her parental rights would be in the children’s best interest.        Applying the

appropriate standard of review,6 we hold that, based upon our review of the

record, the evidence is legally sufficient to support the best interest finding.

We also hold, applying the appropriate standard of review, 7 that the evidence

is factually sufficient to support the best interest finding.8       We overrule

Mother’s sole issue.

      The termination decree contains the following findings regarding Father:




      6
     … See Tex. Fam. Code Ann. § 263.307(a), (b) (Vernon 2008); In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006); In re J.P.B., 180 S.W.3d 570,
573–74(Tex. 2005); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
      7
       … See Tex. Fam. Code Ann. § 263.307(a), (b); R.R., 209 S.W.3d at
116; In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re C.H., 89 S.W.3d
17, 28 (Tex. 2002); Holley, 544 S.W.2d at 371–72.
      8
        … See In re M.R., 243 S.W.3d 807, 821–22 (Tex. App.—Fort Worth
2007, no pet.) (“[F]orfeiture of . . . parental rights to other children and . . .
inability to follow court orders, avoid drug use, and maintain a stable lifestyle
supports the conclusion that termination is in the children’s best interest.”).

                                        15
      10.1.         The Court finds by clear and convincing evidence that,
                    after having waived service of process or being served
                    with citation in this suit, [Father] did not respond by
                    filing an admission of paternity or by filing a
                    counterclaim for paternity or for voluntary paternity to
                    be adjudicated under chapter 160 of the Texas Family
                    Code before the final hearing in this suit.

      10.3.         The Court finds by clear and convincing evidence that
                    [Father] has

              10.3.1.     knowingly placed or knowingly allowed the child
                          to remain in conditions or surroundings which
                          endanger the emotional or physical well-being of
                          the child; and

              10.3.2.     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;

              10.3.3.     constructively abandoned the children who have
                          been in the permanent or temporary managing
                          conservatorship of the Department of Family and
                          Protective Services or an authorized agency for
                          not less than six months and: (1) the Department
                          or authorized agency has made reasonable
                          efforts to return the children to the father; (2)
                          the father has not regularly visited or maintained
                          significant contact with the children; and (3) the
                          father has demonstrated an inability to provide
                          the children with a safe environment. 9

The trial court also found that the termination of Father’s parental rights would

be in the children’s best interest.



      9
          … See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (N).

                                        16
      In four issues, Father challenges the legal and factual sufficiency of the

findings under subsections (D), (E), and (N) and the factual sufficiency of the

best interest finding and contends that the trial court erred to the extent that

the trial court terminated his rights for failure to file a counterclaim for paternity

under section 161.002(b)(1). As we have explained in a similar case,

             Endangerment means to expose to loss or injury, to
      jeopardize. The trial court may order termination of the parent-child
      relationship if it finds by clear and convincing evidence that the
      parent has knowingly placed or knowingly allowed the child to
      remain in conditions or surroundings that endanger the physical or
      emotional well-being of the child. Under subsection (D), it is
      necessary to examine evidence related to the environment of the
      child to determine if the environment was the source of
      endangerment to the child’s physical or emotional well-being.
      Conduct of a parent in the home can create an environment that
      endangers the physical and emotional well-being of a child.

            . . . . Under subsection (E), the relevant inquiry is whether
      evidence exists that the endangerment of the child’s physical or
      emotional well-being was the direct result of the parent’s conduct,
      including acts, omissions, and failures to act. Termination under
      subsection (E) must be based on more than a single act or
      omission; a voluntary, deliberate, and conscious course of conduct
      by the parent is required.

            To support a finding of endangerment, the parent’s conduct
      does not necessarily have to be directed at the child, and the child
      is not required to suffer injury. The specific danger to the child’s
      well-being may be inferred from parental misconduct alone, and to
      determine whether termination is necessary, courts may look to
      parental conduct both before and after the child’s birth. . . . A
      parent’s decision to engage in illegal drug use during the pendency
      of a termination suit, when the parent is at risk of losing a child,
      supports a finding that the parent engaged in conduct that

                                         17
      endangered the child’s physical or emotional well-being. Thus,
      parental and caregiver illegal drug use supports the conclusion that
      the children’s surroundings endanger their physical or emotional
      well-being. A factfinder may also reasonably infer from a parent’s
      failure to attend scheduled drug screenings that the parent was
      avoiding testing because the parent was using drugs. As a general
      rule, conduct that subjects a child to a life of uncertainty and
      instability endangers the child’s physical and emotional well-being.

            Because   the    evidence     pertaining to    subsections
      161.001(1)(D) and (E) is interrelated, we conduct a consolidated
      review.10

      The evidence at trial demonstrated that Father knew about Mother’s drug

use and knew about the conditions in which the children were living while in

the parents’ care but did nothing to improve them. Accordingly, applying the

appropriate standard of review,11 we hold that, based upon our review of the

record, the evidence is legally sufficient to support the trial court’s

endangerment findings regarding Father under subsections (D) and (E).

      Also applying the appropriate standard of review,12 we hold that the

evidence is factually sufficient to support those findings. We overrule Father’s




      10
      … In re J.W., No. 02-08-00211-CV, 2009 WL 806865, at *4–5 (Tex.
App.—Fort Worth Mar. 26, 2009, no pet.) (mem. op.) (citations omitted).
      11
           … See J.P.B., 180 S.W.3d at 573–74.
      12
           … See H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28.

                                      18
first issue, and, in light of this disposition, do not reach his second and third

issues.13

      In his fourth issue, Father contends that the evidence supporting the best

interest finding is factually insufficient. Applying the appropriate standard of

review,14 we hold that, based on our review of the record, the evidence is

factually sufficient to support that finding.   We therefore overrule Father’s

fourth issue.

      Having overruled the parents’ dispositive issues, we affirm the trial

court’s judgment terminating their parental rights.




                                                 PER CURIAM

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: July 23, 2009




      13
        … See Tex. R. App. P. 47.1; In re E.M.N., 221 S.W.3d 815, 821 (Tex.
App.—Fort Worth 2007, no pet.) (providing that along with a best interest
finding, a finding of only one ground alleged under section 161.001(1) is
sufficient to support a judgment of termination).
      14
       … See Tex. Fam. Code Ann. § 263.307(a), (b); R.R., 209 S.W.3d at
116; H.R.M., 209 S.W.3d at 108; C.H., 89 S.W.3d at 28; Holley, 544 S.W.2d
at 371–72.

                                       19
