                                         NO. 12-11-00243-CV

                           IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

                                                          §              APPEAL FROM THE 354TH
IN THE INTEREST OF
                                                          §              JUDICIAL DISTRICT COURT
H.L.F., A CHILD
                                                         §               RAINS COUNTY, TEXAS

                                         MEMORANDUM OPINION
         F.N.F. and A.D. appeal the termination of their parental rights to H.L.F. F.N.F. and A.D.
jointly raise four issues on appeal.1 We affirm in part and reverse and render in part.


                                                  BACKGROUND
         F.N.F. and A.D. (collectively Appellants) are the parents of H.L.F., who was born on
January 8, 2010, while her mother, F.N.F., was in state jail. At the time of H.L.F.’s birth, F.N.F.
had an open case with the Department of Family and Protective Services (the Department or
CPS) involving her two oldest children, J. and G., who were living with F.N.F.’s grandparents.
On January 11, 2010, the Department filed a petition for protection of H.L.F., for
conservatorship, and for termination in a suit affecting the parent-child relationship. That same
day, the trial court signed an emergency order naming the Department as temporary sole
managing conservator of H.L.F. On February 8, 2010, an adversary hearing was held in which
neither appellant appeared personally or through an attorney of record. The trial court appointed
the Department as temporary managing conservator, and F.N.F. as temporary possessory
conservator, of H.L.F. H.L.F. was placed with F.N.F.’s cousin and her husband, E.H. and B.H.,


         1
           To protect the identity of the child who is the subject of this suit, we use aliases to identify the various
parties involved. See TEX. R. APP. P. 9.8(b)(2).
on February 15, 2010, and has remained with them throughout the pendency of the case. On
September 17, 2010, E.H. and B.H. filed a petition for intervention, seeking conservatorship of
H.L.F.
         A jury was selected on June 20, 2011, and the case proceeded to trial. 2 Ultimately, ten
jurors determined that the parent-child relationship between Appellants and H.L.F. should be
terminated. The trial court subsequently appointed E.H. and B.H. as the permanent managing
conservators of H.L.F.


                                TERMINATION OF PARENTAL RIGHTS
         Involuntary termination of parental rights embodies fundamental constitutional rights. In
re C.L.C., 119 S.W.3d 382, 390 (Tex. App.—Tyler 2003, no pet.); Vela v. Marywood, 17
S.W.3d 750, 759 (Tex. App.—Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001).
When the state seeks to terminate one’s parental rights, it seeks not only to infringe one’s
fundamental liberty interest, but to end it. See In re J.F.C., 96 S.W.3d 256, 273 (Tex. 2002). A
termination decree is “complete, final, irrevocable [and] divests for all time the parent and child
of all legal rights, privileges, duties, and powers with respect to each other except for the child’s
right to inherit.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re Shaw, 966 S.W.2d
174, 179 (Tex. App.—El Paso 1998, no pet.). Thus, the breaking of bonds between a parent and
child “can never be justified without the most solid and substantial reasons.” Wiley, 543 S.W.2d
at 352; In re Shaw, 966 S.W.2d at 179. Because a termination action “permanently sunders” the
bonds between a parent and child, the proceedings must be strictly scrutinized. Wiley, 543
S.W.2d at 352; In re Shaw, 966 S.W.2d at 179. However, parental rights are not absolute, and it
is vital that the emotional and physical interests of the child not be sacrificed at the expense of
preserving that right. See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002).
         Section 161.001 of the Texas Family Code permits the termination of parental rights if
two elements are met. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2012). First, the parent
must have engaged in any one of the acts or omissions itemized in the first subsection of the
statute. Id. § 161.001(1) (West Supp. 2012); In re C.L.C., 119 S.W.3d at 390. Second,

         2
          The original dismissal date for this case was January 17, 2011. On December 22, 2010, the presiding
judge extended the dismissal date to July 9, 2011. See TEX. FAM. CODE ANN. § 263.401(a) (West 2008).
                                                     2
termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(2) (West
Supp. 2012); In re C.L.C., 119 S.W.3d at 390. Both elements must be proved by “clear and
convincing evidence,” and proof of one element does not alleviate the petitioner’s burden of
proving the other. TEX. FAM. CODE ANN. § 161.001; In re C.L.C., 119 S.W.3d at 390. “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 (West 2008).              Because there is a strong
presumption that the best interest of the child is served by preserving the parent-child
relationship, the burden of proof rests upon the party seeking to deprive the parent of his or her
parental rights. See Wiley, 543 S.W.2d at 352; In re C.L.C., 119 S.W.3d at 391.


                        TRIAL COURT’S DENIAL OF MOTION TO STRIKE
       In their first issue, Appellants argue that the trial court erred in denying F.N.F.’s motion
to strike the Department’s pleadings because the order authorizing H.L.F.’s removal was signed
by a judge without authority. Appellants contend that the order appointing the Honorable Judge
William C. Martin to hear child protection cases had expired by the time Judge Martin approved
the removal of H.L.F. and named the Department temporary managing conservator. Appellants
argue that Judge Martin had no authority to sign the orders and as a result, the orders granting the
Department temporary managing conservatorship of H.L.F. are void.
       The record on appeal does not contain an order of referral effective on January 11, 2010,
or February 8, 2010—the dates on which Judge Martin granted temporary managing
conservatorship of H.L.F. to the Department. But the record does contain an order that expired
in August 2007 appointing Judge Martin to hear the “Foster Care Docket and Sabine Valley
Child Protection Docket” pursuant to Section 74.056 of the government code. Accordingly, we
conduct our analysis under Chapter 74 of the government code.
Applicable Law and Analysis
       We review a trial court’s ruling on a motion to strike pleadings for abuse of discretion.
See In re N.L.G., 238 S.W.3d 828, 829 (Tex. App.—Fort Worth 2007, no pet.).
       Section 74.056 provides that a presiding judge shall assign the judges of the
administrative region to hold special or regular terms of court in any county of the administrative
                                                 3
region to try cases and dispose of accumulated business. TEX. GOV’T CODE ANN. § 74.056(a)
(West 2005). If a party to a civil case files a timely objection to the assignment, the judge shall
not hear the case. See TEX. GOV’T CODE ANN. § 74.053(b) (West 2005). An assigned judge is
disqualified to preside over a civil matter when a party files a timely objection to his assignment.
See id.; Ex parte Holland, 807 S.W.2d 827, 828 (Tex. App.—Dallas 1991, writ dism’d w.o.j.)
(assigned judge automatically disqualified upon timely objection).          If an assigned judge
continues to preside over a matter despite a timely objection, any subsequent orders he issues are
nullities. Id.
        To be timely, an objection must be filed “not later than the seventh day after the date the
party receives actual notice of the assignment or before the date the first hearing or trial,
including pretrial hearings, commences, whichever date occurs earlier.” TEX. GOV’T CODE §
74.053(c). An objection must be timely filed and made without regard to the terms of the
particular order under which the judge is assigned. See In re Canales, 52 S.W.3d 698, 704 (Tex.
2001); see also Adame v. Law Office of Allison & Huerta, No. 13-04-670-CV, 2008 WL
2151454, at *3 (Tex. App.—Corpus Christi May 22, 2008, pet. denied) (mem. op.) (once
assigned judge hears any matter in a case, parties have waived right to object under Section
74.053 of the government code) (citations omitted).
        The first order issued by Judge Martin was signed January 11, 2010. This order named
the Department temporary sole managing conservator of H.L.F. On February 8, 2010, Judge
Martin signed a second order, which appointed the Department as temporary managing
conservator of H.L.F. Judge Martin presided over five hearings after signing the February 8,
2010 order before any objection was lodged. On August 10, 2010, F.N.F. filed an “Objection to
Associate Judge and Motion to Modify Temporary Orders.” It was in this August 10, 2010
motion that F.N.F. first pointed out that there was no assignment order authorizing Judge Martin
to hear the case. Judge Martin did not preside over any subsequent hearings after F.N.F. filed
her objection. But because Appellants did not object to Judge Martin’s assignment until after
Judge Martin had presided over several hearings, their objection was untimely. See In re
Canales, 52 S.W.3d at 703-04. Because the objection was untimely, the trial court did not abuse
its discretion in denying F.N.F.’s motion to strike the Department’s pleadings on the basis that
the January and February 2010 orders were void. We overrule Appellants’ first issue.
                                                 4
            TERMINATION OF PARENTAL RIGHTS—SUFFICIENCY OF THE EVIDENCE
       In their remaining issues, Appellants challenge the sufficiency of the evidence to support
termination. When, as here, the burden of proof is clear and convincing evidence, we conduct a
legal sufficiency review by looking at all of 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. In re J.F.C., 96 S.W.3d at 266. We must assume that the
fact finder resolved disputed facts in favor of its finding if a reasonable fact finder could do so.
Id. Thus, it follows that the reviewing court should disregard all evidence that a reasonable fact
finder could have disbelieved or found to have been incredible, but this does not mean that the
reviewing court must disregard all evidence that does not support the finding. Id. Disregarding
undisputed facts that do not support the finding could skew the analysis of whether there is clear
and convincing evidence. Id. If, after conducting our legal sufficiency review, we determine
that no reasonable fact finder could form a firm belief or conviction that the matter which must
be proven is true, then we will conclude that the evidence is legally insufficient. Id.
       When we conduct a factual sufficiency review, we must give due consideration to
evidence that the fact finder could reasonably have found to be clear and convincing. Id. Our
inquiry is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the Department’s allegations.          Id.   We consider whether the
disputed evidence is such that a reasonable fact finder could not have resolved that disputed
evidence in favor of its finding. Id. If, when viewed in light of the entire record, the disputed
evidence is so significant that a fact finder could not have reasonably formed a firm belief or
conviction, then the evidence is factually insufficient.       Id.    In finding evidence factually
insufficient, the appellate court should detail why it has concluded that a reasonable fact finder
could not have credited disputed evidence in favor of its finding. Id. at 267.
       The standard of review for legal and factual sufficiency challenges maintains a
deferential standard for the fact finder’s role, which means the trier of fact is the exclusive judge
of the credibility of the witnesses and weight to be given their testimony. In re C.H., 89 S.W.3d
at 26-27; Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.—Houston [1st Dist.] 1997,
pet. denied). Thus, our review must not be so rigorous that the only fact findings that could
withstand review are those established beyond a reasonable doubt. In re C.H., 89 S.W.3d at 26.
                                                 5
                          TERMINATION OF F.N.F.’S PARENTAL RIGHTS
         In their second issue, Appellants contend the evidence is legally and factually insufficient
to terminate F.N.F.’s parental rights pursuant to Texas Family Code Section 161.001(1),
subsections (D), (E), and (O). We agree. Because the evidence is legally insufficient to support
termination of F.N.F.’s parental rights pursuant to subsections (D), (E), and (O), we do not
address Appellants’ challenge to the factual sufficiency of the evidence in regard to subsections
(D), (E), and (O), nor do we address the sufficiency of the evidence pertaining to H.L.F.’s best
interest. See TEX. R. APP. P. 47.1.
Termination Under Section 161.001(1)(D)
         At trial, the jury found that F.N.F. knowingly placed or knowingly allowed H.L.F. to
remain in conditions or surroundings that endangered H.L.F.’s physical or emotional well being.
See TEX. FAM. CODE ANN. § 161.001(1)(D) (West Supp. 2012).
         1.     Applicable Law
         The 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.    See id. § 161.001(1)(D).      This provision addresses the child’s surroundings and
environment, rather than parental conduct. In re C.L.C., 119 S.W.3d at 392. The relevant time
frame to consider in determining whether there is clear and convincing evidence of
endangerment is before the child was removed. Ybarra v. Tex. Dep’t of Human Servs., 869
S.W.2d 574, 577 (Tex. App.—Corpus Christi 1993, no pet.).
         When seeking termination under subsection (D), the Department must show that the
child’s living conditions pose a real threat of injury or harm. See In re N.R., 101 S.W.3d 771,
776 (Tex. App.—Texarkana 2003, no pet.). Some courts have held that illegal drug use and
drug-related criminal activity by parents and caregivers could create an environment that
endangers a child’s physical or emotional well being. See In re D.C., 128 S.W.3d 707, 715-16
(Tex. App.—Fort Worth 2004, no pet.). But the party seeking termination must still present
clear and convincing evidence of the child’s actual physical surroundings or conditions that were
created by the endangering conduct in order to satisfy the requirements of subsection (D). See,
e.g., In re D.J.H., No. 04-11-00668-CV, 2012 WL 3104502, at *6 (Tex. App.—San Antonio
                                                  6
Aug. 1, 2012, no pet.) (fact finder could conclude parent’s pattern of criminal activity subjected
him to possibility of incarceration, thereby negatively affecting child’s living environment and
emotional well being); In re A.S., 261 S.W.3d 76, 84-85 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied). However, the fact that a mother used a controlled substance while she was pregnant
and did not obtain routine prenatal care does not mean that termination is automatic. See, e.g.,
id. at 83-87.
        Additionally, imprisonment can be used as a factor to consider on the issue of
endangerment, but imprisonment alone is not enough to terminate the rights of a parent to her
child. See In re D.T., 34 S.W.3d 625, 636 (Tex. App.—Fort Worth 2000, pet. denied).
        2.      Analysis
        The record contains some evidence that is favorable to the jury’s finding. According to
the testimony at trial, F.N.F. had an open CPS case regarding her two oldest children, J. and G.,
at the time of H.L.F.’s birth. J. and G. were living with F.N.F.’s grandmother while F.N.F. was
in state jail. F.N.F. used methamphetamine during the first trimester of her pregnancy and
acknowledged that she placed H.L.F. in danger by using methamphetamine during this time
period. Additionally, F.N.F. attended only one prenatal doctor’s visit while she was pregnant
with H.L.F. F.N.F. gave birth to H.L.F. on January 8, 2010, while she was serving her state jail
sentence.
        Contrary to the finding, however, the Department presented no evidence to explain how
F.N.F.’s drug use created an endangering condition or surrounding for H.L.F. while she was in
the womb. Furthermore, Dr. Thomas Allen testified that it was “more likely than not” that
F.N.F.’s methamphetamine use had no effect on H.L.F. Allen explained that it is a “false
assumption” that a child would experience “dramatic neurological damage” when a mother does
not use methamphetamine “throughout the whole nine months” of her pregnancy and has the
levels of methamphetamine in her system as was the case when F.N.F. tested positive during the
first trimester of her pregnancy. Allen further testified that if H.L.F. was going to have any
neurological damage due to F.N.F.’s methamphetamine use, “it would be observable by now.”
        The Department did not present any evidence that H.L.F. tested positive for any
controlled substance, that she needed specialized medical treatment, or that she suffered from
any birth defects, abnormalities, or complications as a result of F.N.F.’s drug use during the first
                                                 7
trimester of her pregnancy. At the time of the removal, F.N.F. had not had possession of H.L.F.
Therefore, F.N.F. could not have exposed H.L.F. to endangering conditions or surroundings
between the time of H.L.F.’s birth and the time of her removal. See, e.g., In re S.N., 272 S.W.3d
45, 62 (Tex. App.—Waco 2008, no pet.) (op. on reh’g) (limited evidence in the record regarding
the home environment at time of removal suggests adequate living conditions); In re A.S., 261
S.W.3d at 83-85 (evidence insufficient when child removed at birth and Department offered no
evidence of actual surroundings or conditions). F.N.F. had arranged for her mother, S.Y., to take
H.L.F. home from the hospital, but CPS policy prohibited S.Y. from taking the child. The
Department offered a case closure agreement signed by F.N.F. and S.Y. to support its policy
determination. But the case closure agreement does not provide evidence of any endangering
conditions or surroundings H.L.F. would have been exposed to had she gone home with S.Y.
from the hospital. Moreover, CPS Investigator Terri Baker testified that although the initial
intake report stated that H.L.F. was born while her mother was in prison, she did not know until
after H.L.F. was in CPS care that F.N.F. wanted S.Y. to have the child. CPS Supervisor Patricia
Skelton approved H.L.F.’s removal from the hospital without F.N.F.’s consent and without a
court order. Skelton also testified that despite her contact with F.N.F.’s relatives due to the open
case involving J. and G., she did not remember talking about H.L.F. with anyone prior to her
birth.
         The Department’s and Intervenors’ sole argument in favor of termination of F.N.F.’s
parental rights under subsection (D) is based on the fact that F.N.F. used methamphetamine prior
to and during the first trimester of her pregnancy. They implicitly contend that this created an
endangering condition or surrounding inside F.N.F.’s womb before H.L.F. was born.                           The
Department and the Intervenors cite a number of cases in which termination pursuant to
subsection (D) was affirmed when a mother used illegal drugs while she was pregnant. But each
of those cases involved a mother who abused one or more controlled substances throughout her
pregnancy and had a child who was born addicted to the controlled substance or with the
controlled substance still in the child’s system.3 Therefore, these cases are inapposite.

         3
           See generally In re B.R., No. 02-11-0146-CV, 2011 WL 5515502 (Tex. App.—Fort Worth Nov. 10,
2011, no pet.) (mem. op.) (mother used heroin while pregnant and was high when she gave birth); In re K.L.B., No.
14-09-00061-CV, 2009 WL 3444833 (Tex. App.—Houston [14th Dist.] July 16, 2009, no pet.) (mem. op.) (mother
tested positive for cocaine when child born prematurely); In re J.M., No. 02-08-259-CV, 2009 WL 112679 (Tex.
                                                       8
    3. Conclusion
        After viewing the evidence in the light most favorable to the finding and reviewing the
undisputed facts, we conclude that no reasonable fact finder could form a firm belief or
conviction that F.N.F. knowingly placed or knowingly allowed H.L.F. to remain in conditions or
surroundings that endangered her physical or emotional well being. See In re J.F.C., 96 S.W.3d
at 266; see also In re A.S., 261 S.W.3d at 83-85. Therefore, we hold that the evidence is legally
insufficient to terminate F.N.F.’s parental rights pursuant to subsection (D).
Termination Under Section 161.001(1)(E)
        At trial, the jury also found that F.N.F. engaged in conduct or knowingly placed H.L.F.
with persons who engaged in conduct that endangered H.L.F.’s physical or emotional well being.
See TEX. FAM. CODE ANN. § 161.001(1)(E) (West Supp. 2012).
        1.       Applicable Law
        A court may order termination of the parent-child relationship if the court finds by clear
and convincing evidence that the parent has engaged in conduct or knowingly placed the child
with persons who engaged in conduct that endangers the physical or emotional well being of the
child. See id. § 161.001(1)(E). “Endanger” means more than a threat of metaphysical injury or
the possible ill effects of a less than ideal environment. Texas Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531, 533 (Tex. 1987). It is not necessary that the conduct be directed at the child or
that the child actually suffers injury. Id. It is sufficient that the child’s well being be jeopardized
or exposed to loss or injury. In re J.J., 911 S.W.2d 437, 440 (Tex. App.—Texarkana 1995, writ
denied).     The cause of the endangerment must be the direct result of the parent’s conduct and
must be the result of a continuing course of conduct rather than a single act or omission. In re
A.S., 261 S.W.3d at 83, 86; see also In re Baby Boy R., 191 S.W.3d 916, 925 (Tex. App.—
Dallas 2006, pet. denied) (instability and incarceration can be continuing course of conduct
supporting termination).



App.—Fort Worth Jan. 15, 2009, no pet.) (mem. op.) (child tested positive for cocaine at birth); In re U.P., 105
S.W.3d 222 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (child born addicted to cocaine and barbiturates);
In re M.J.M.L., 31 S.W.3d 347 (Tex. App.—San Antonio 2000, pet. denied) (child born with narcotics in system);
In re W.A.B., 979 S.W.2d 804 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (mother and child tested
positive for cocaine at birth); Dupree v. Tex. Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81 (Tex. App.—
Dallas 1995, no writ) (mother used cocaine weekly during pregnancy and day of child’s birth).
                                                       9
        Courts look to what the parent did both before and after the child’s birth to determine
whether termination is necessary. In re D.M., 58 S.W.3d 801, 812 (Tex. App.—Fort Worth
2001, no pet.). Conduct toward other children is a relevant consideration under subsection (E),
and courts may also consider a parent’s use of illegal drugs during pregnancy as endangering
conduct supporting termination. In re C.R., 263 S.W.3d 368, 372 (Tex. App.—Dallas 2008, no
pet.); In re Baby Boy R., 191 S.W.3d at 925; Dupree v. Tex. Dep’t of Protective & Regulatory
Servs., 907 S.W.2d 81, 84 (Tex. App.—Dallas 1995, no writ). Finally, a parent’s imprisonment
may be considered as a factor on the issue of endangerment, but imprisonment alone will not
constitute endangerment. See Latham v. Dep’t of Family & Protective Servs., 177 S.W.3d 341,
348 (Tex. App.—Houston [1st Dist.] 2005, no pet.); In re C.L.C., 119 S.W.3d at 397; In re D.T.,
34 S.W.3d at 636.
        2.      Evidence in the Light Most Favorable to the Finding
        F.N.F. testified that she began using methamphetamine in 2001 and is addicted to both
methamphetamines and marijuana. She went to an inpatient drug rehabilitation facility for her
methamphetamine addiction in 2005, 2007, and 2008, but relapsed each time. F.N.F. had drug-
related criminal history dating back to 2007, when she was placed on deferred adjudication
probation for the offense of possession of methamphetamine. F.N.F. testified that her deferred
adjudication probation was modified after she was arrested for possession of marijuana and
tested positive in a random drug test in February 2008. During the summer of 2009, F.N.F.
pleaded guilty to misdemeanor possession of marijuana and placed her two oldest children, J.
and G., with her grandparents. F.N.F. submitted to a hair follicle test upon CPS’s request on July
16, 2009. CPS informed F.N.F.’s probation officer, Jerry Beare, that F.N.F. tested positive for
methamphetamine. F.N.F.’s probation was subsequently revoked on July 27,2009, she was
sentenced to confinement in state jail, and was released on April 2, 2010.
        Probation Officer Beare testified that F.N.F. admitted using methamphetamine while she
was pregnant, and told him that she planned to have an abortion. A.D. testified that he believed
F.N.F. may have used methamphetamine “shortly after” she became pregnant with H.L.F.
F.N.F. attended only one prenatal visit prior to her state jail confinement and gave birth to H.L.F.
while in state jail.


                                                10
       Other testimony revealed that prior to F.N.F.’s state jail confinement, CPS became
involved in her life because her drug use was endangering her oldest children’s physical and
emotional well being. A.D. testified that F.N.F. used methamphetamine when J. and G. were in
their house. When asked whether F.N.F. operated a motor vehicle while under the influence of
methamphetamine with J. and G. in the car, A.D. answered, “I’m sure she has.”
       F.N.F. confirmed that her middle child, G., tested positive for marijuana at birth. She
acknowledged that it was reckless for her to use drugs while she was pregnant. She testified that
it bothered her that G. tested positive for marijuana, but she still used drugs during the first
trimester of her pregnancy with H.L.F. because she was an addict.
       Finally, CASA Supervisor Mandy Kennedy testified that F.N.F. did not regularly attend
Narcotics Anonymous meetings.         Although F.N.F. had negative results for her drug tests,
Kennedy thought the results for two tests were questionable.
       3.      Undisputed Facts Not Supporting the Finding
       It is undisputed that H.L.F. was born free of birth defects and medical conditions and did
not test positive for any controlled substance.       It is also undisputed that, despite F.N.F.’s
admission that she used methamphetamine while she was pregnant with H.L.F., neither the
Department nor CASA recommended termination of F.N.F.’s parental rights to J. or G.
Approximately nine months before trial, F.N.F. obtained joint managing conservatorship of J.
and G. F.N.F.’s parental rights to J. and G. were not terminated, and by the time of trial in this
case, she had obtained unsupervised overnight visits with both children.
       All of F.N.F.’s drug test results were negative, and F.N.F. testified that at the time of trial,
she had fourteen consecutive months of “free world” sobriety. The Department did not present
evidence of drug use while F.N.F. was in state jail or after her release. F.N.F. attended Narcotics
Anonymous meetings, was on step four of the twelve-step program, had a sponsor, and served as
the treasurer for her group. F.N.F. testified that in addition to attending the meetings and regular
counseling sessions, she attended a local church to help her recover from her addiction.
       Israel Lewis, a licensed professional counselor and therapist, testified that the likelihood
of a relapse decreases with each day of sobriety, although it will always remain a possibility. Dr.
Thomas Allen, a forensic psychologist, confirmed that the prognosis for a methamphetamine
addict who has been “meth free” for one year is “excellent,” and testified that F.N.F.’s risk of
                                                 11
relapse is “slim.” Finally, O’Quinn Demery, Jr., a drug and alcohol counselor for the East Texas
Council on Alcohol and Drug Abuse testified that a person is in full remission from their
addiction after one year of sobriety.
       During the pendency of the case, F.N.F. has worked full time as a waitress and part time
as a drill press operator. She has also obtained a license to work as a phlebotomist. CASA
Supervisor Mandy Kennedy testified that termination of F.N.F.’s parental rights to H.L.F. was
not CASA’s original goal. She explained that because E.H. and B.H. had done such a good job
taking care of H.L.F. throughout the case and because of H.L.F.’s young age, CASA changed its
recommendation so that E.H. and B.H. could adopt H.L.F.            It is implicit from Kennedy’s
testimony that her recommendation was not based on F.N.F.’s continuing to engage in
endangering conduct. Similarly, CPS Supervisor Patricia Skelton confirmed that, if H.L.F. was
older, CPS would not be seeking termination of F.N.F.’s parental rights.
       4.      Conclusion
       The evidence at trial shows that F.N.F. had engaged in endangering conduct before
H.L.F. was born. But the undisputed evidence shows that, once H.L.F. was born, F.N.F. did not
continue to engage in a course of conduct that would endanger H.L.F.’s well being. This was
confirmed by F.N.F.’s expanded rights to her oldest children, J. and G. The testimony at trial
from both CASA and CPS employees confirmed that they did not believe H.L.F. was
continuously engaging in endangering conduct upon her release from state jail. After viewing
the evidence in the light most favorable to the finding and reviewing the undisputed facts at trial,
we conclude that no reasonable trier of fact could form a firm belief or conviction that F.N.F.
engaged in a continuous course of conduct or placed H.L.F. with persons who engaged in
conduct that endangered H.L.F.’s physical and emotional well being. See In re J.F.C., 96
S.W.3d at 266. Therefore, we hold that the evidence is legally insufficient to terminate F.N.F.’s
parental rights pursuant to subsection (E).
Termination Under Section 161.001(1)(O)
       In its third ground for termination of F.N.F.’s parental rights, the jury found that F.N.F.
failed to comply with the provisions of a court order signed pursuant to Section 161.001,
subsection (1)(O), of the family code.


                                                12
       The court may order termination of the parent-child relationship if the court finds by clear
and convincing evidence that the parent has failed to comply with the provisions of a court order
that specifically established the actions necessary for the parent to obtain the return of the child
who has been in the permanent or temporary managing conservatorship of the Department for
not less than nine months as a result of the child’s removal from the parent under Chapter 262 for
the abuse or neglect of the child. See TEX. FAM. CODE ANN. § 161.001(1)(O) (West Supp. 2012).
       When the Department seeks termination under subsection (O), it must prove by clear and
convincing evidence that the child was removed for abuse or neglect. In re A.A.A., 265 S.W.3d
507, 515 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). Whether a child was removed for
abuse or neglect must be determined on a case by case basis. Id. Evidence of abuse or neglect
of a sibling does not support termination under subsection (O). In re E.C.R., No. 01-11-00791-
CV, 2012 WL 897777, at *4 (Tex. App.—Houston [1st Dist.] Mar. 15, 2012, no pet.). Risk of
harm is insufficient to satisfy the abuse or neglect element of subsection (O). See In re S.A.P.,
169 S.W.3d 685, 705-06 (Tex. App.—Waco 2005, no pet.).
       CPS Investigator Terri Baker testified that when a woman has a child while she is in
prison, CPS gets involved if a report is made. According to Baker’s testimony, the information
she received during her investigation came from the CPS intake report and her supervisor,
Patricia Skelton. Baker testified that she did not know F.N.F. wanted S.Y. to take H.L.F. home
from the hospital until after H.L.F. had been removed.         Baker explained that she knew a
“staffing” had been held between supervisors regarding H.L.F. and that the supervisors would
have known whether a competent adult was available to take H.L.F. home from the hospital.
According to Baker, the intake report did not contain allegations of abuse or neglect of H.L.F.,
but included only a statement that H.L.F. was born while her mother was incarcerated. As we
have previously stated, H.L.F. was born healthy, and did not test positive for controlled
substances. The Department offered no evidence that H.L.F. was removed due to abuse or
neglect. Instead, the testimony showed that the Department removed H.L.F. because its policy
prohibited S.Y. from taking the child.
       After viewing the evidence in the light most favorable to the finding and reviewing the
undisputed facts, we conclude that no reasonable trier of fact could form a firm belief or
conviction that H.L.F. was removed due to abuse or neglect. See In re J.F.C., 96 S.W.3d at 266.
                                                13
Therefore, we hold that the evidence is legally insufficient to terminate F.N.F.’s parental rights
pursuant to subsection (O).
Conclusion
       Because we have held that the evidence is legally insufficient to establish grounds for
termination under Sections 161.001(1)(D), (E), and (O), we sustain Appellants’ second issue.


                          TERMINATION OF A.D.’S PARENTAL RIGHTS
       As part of their third issue, Appellants contend the evidence is legally and factually
insufficient to support termination of A.D.’s parental rights to H.L.F. under Section 161.001,
subsection (1)(Q) of the family code. Appellants also contend the evidence is legally and
factually insufficient to support a finding that termination of A.D.’s parental rights is in H.L.F.’s
best interest. See TEX. FAM. CODE ANN. § 161.001(2).
Termination Under Section 161.001(1)(Q)
       The court may order termination of the parent-child relationship if the court finds by clear
and convincing evidence that the parent has knowingly engaged in criminal conduct that has
resulted in the parent’s conviction of an offense, and his confinement or imprisonment and
inability to care for the child for not less than two years from the date of filing the petition. See
TEX. FAM. CODE § 161.001(1)(Q) (West Supp. 2012). Subsection (Q) applies prospectively. In
re A.V., 113 S.W.3d 355, 360 (Tex. 2003). Thus, if a parent is convicted and sentenced to serve
at least two years and will be unable to provide for his child during that time, the state may use
subsection (Q) to ensure that the child will not be neglected. Id. But a two year sentence does
not automatically meet subsection (Q)’s two year imprisonment requirement because neither the
length of the sentence nor the projected release date is dispositive of when the parent will in fact
be released from prison. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). Consequently,
evidence of the availability of parole is relevant to determine whether the parent will be released
within two years. Id. at 109. But the mere introduction of parole-related evidence does not
prevent a fact finder from forming a firm conviction or belief that the parent will remain
incarcerated for at least two years because parole decisions are inherently speculative, and the
decision rests entirely within the parole board’s discretion. See id.


                                                 14
       Once the Department has established a parent’s knowing criminal conduct resulting in his
incarceration for more than two years, the burden shifts to the parent to produce some evidence
as to how he will arrange care for the child during that period. Hampton v. Tex. Dep’t of
Protective & Regulatory Servs., 138 S.W.3d 564, 567 (Tex. App.—El Paso 2004, no pet.); see
also In re Caballero, 53 S.W.3d 391, 396 (Tex. App.—Amarillo 2001, pet. denied). Factors to
be considered when deciding whether an incarcerated parent is unable to care for a child include
the availability of financial and emotional support. In re B.M.R., 84 S.W.3d 814, 818 (Tex.
App.—Houston [1st Dist.] 2002, no pet.). When the parent meets his burden of production, the
Department then has the burden of persuasion that the parent’s arrangement would not satisfy the
parent’s duty to the child. In re Caballero, 53 S.W.3d at 396.
       1.      Analysis
       At trial, A.D. was incarcerated. He testified that he had been convicted of, and
imprisoned for, the felony offense of attempted manufacture of a controlled substance. He was
released on parole in 2006. While on parole, A.D. committed the felony offense of theft of
property, to which he pleaded guilty on March 30, 2011, and received a sentence of twelve years
of imprisonment. A.D. explained that he served four and one-half years in prison on the
attempted manufacture of a controlled substance offense before he was released on parole for
good behavior. A.D. testified that his first parole date for his most recent offense could be at any
time “in the next six months,” but then acknowledged that this was a discretionary parole date
and not guaranteed.       A.D.’s testimony revealed that his “mandatory release date” was
approximately four years away. He also testified that he had a “blue warrant hold” as a result of
committing an offense while on parole. At the time of trial, it was uncertain as to what, if any,
effect A.D.’s blue warrant would have in regard to his release date. Thus, A.D.’s own testimony
established that he engaged in criminal conduct that resulted in his incarceration for more than
two years. Accordingly, A.D. was required to produce some evidence to show how he would
provide care for H.L.F. during his period of imprisonment. See Hampton, 138 S.W.3d at 567.
       A.D. stated that it was in H.L.F.’s best interest to live with F.N.F. He confirmed that he
was unable to support H.L.F. while he was in prison, but that he would be able to provide
financial support upon his release. A.D. testified that his mother, Marilyn, would provide “all
the help [he] need[ed]” to support H.L.F. and explained that his mother is already taking care of
                                                15
his other daughter, “A.D.2.,” every other weekend.          A.D.2. is approximately four months
younger than H.L.F. and is the child of A.D.’s current wife. A.D. testified that A.D.2. did not
live with his wife, but lived with his mother-in-law, and that Marilyn took care of A.D.2. every
other weekend. A.D. also testified that when Marilyn has A.D.2., she brings the child to the jail
for visits and that she sends him pictures of A.D.2. He also testified that he writes letters to
A.D.2. from prison.
       Marilyn testified that it had been “several months” since she had observed A.D. interact
with his children because he has been incarcerated. She testified, however, that before his
incarceration, A.D.’s interactions with his children and his nieces and nephews were “good.”
She did not testify about whether she was willing to provide care for H.L.F. while A.D. is in
prison. She testified only that she had not provided any support for H.L.F. prior to trial because
she had never had the opportunity to see her.
       2.      Conclusion
       After viewing the evidence in the light most favorable to the finding, we conclude that a
reasonable fact finder could have formed a firm belief or conviction that A.D. was convicted of
the felony offense of theft of property, that he was sentenced to twelve years of imprisonment,
and that, due to his previous parole experience, he would not be released from prison in less than
two years after the filing of the Department’s petition. A reasonable fact finder could have also
formed a firm belief or conviction that A.D. would be unable to provide care for H.L.F. during
his imprisonment.     Despite his testimony that Marilyn would provide “all the help [he]
need[ed],” Marilyn never confirmed her willingness and ability to provide care and support for
H.L.F. From this evidence, the fact finder could have formed a firm belief or conviction that it
was unlikely, despite A.D.’s belief to the contrary, that he would be released before the two year
statutory limit, and that he did not have the ability to care for H.L.F. for not less than two years
from the date of the Department’s filing of its petition.
       Although there is some conflicting evidence that A.D. may be released before the two
year time period ends and that A.D.’s mother may be willing to provide support for H.L.F., this
disputed evidence is not so significant that a reasonable trier of fact could not have reconciled
this evidence in favor of its finding and formed a firm belief or conviction that A.D. knowingly
engaged in criminal conduct that resulted in his conviction of an offense and imprisonment and
                                                 16
inability to care for H.L.F. for not less than two years from the date of the Department’s filing of
its petition. Accordingly, we overrule Appellants’ third issue as it pertains to the legal and
factual sufficiency of the evidence supporting termination of A.D.’s parental rights pursuant to
subsection (O).
Best Interest of the Child
       The party seeking termination must prove by clear and convincing evidence that
termination of a parent’s rights is in the child’s best interest.      See TEX. FAM. CODE ANN.
§ 161.001(2). Parental rights may not be terminated merely because a child might be better off
living elsewhere. In re C.R., 263 S.W.3d at 375. Furthermore, a parent’s imprisonment does not
automatically establish that termination is in the child’s best interest. In re S.R.L., 243 S.W.3d
232, 236 (Tex. App.—Houston [14th Dist.] 2007, no pet.). But a parent’s incarceration is a
factor that courts may consider in determining the best interest of a child. See In re C.T.E., 95
S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). In determining the weight
of this factor, the court should consider the expected length of the imprisonment. See id. The
prompt and permanent placement of the child in a safe environment is presumed to be in the
child’s best interest. See TEX. FAM. CODE ANN. § 263.307(a) (West 2008). But there is also a
strong presumption that keeping a child with a parent is in the child’s best interest. In re R.R.,
209 S.W.3d 112, 116 (Tex. 2006).
       In determining the best interest of the child, the courts consider a number of factors
including (1) the desires of the child; (2) the emotional and physical needs of the child now and
in the future; (3) the emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individuals seeking custody; (5) the programs available to assist these
individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the
acts or omissions of the parent that may indicate the existing parent-child relationship is not a
proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976). The family code also provides a list of factors to consider
whether a child’s parents are willing and able to provide a child with a safe environment, which
we will consider in conjunction with the above-mentioned Holley factors. See TEX. FAM. CODE
ANN. § 263.307. The applicable statutory factors here include (1) the child’s age and physical
and mental vulnerabilities; (2) whether there is a history of abusive or assaultive conduct by the
                                                 17
child’s family or others who have access to the child’s home; and (3) whether there is a history
of substance abuse by the child’s family or others who have access to the child’s home. See id. §
263.307.
       The Department need not prove all of the statutory or Holley factors to show that
termination of parental rights is in the child’s best interest. See Holley, 544 S.W.2d at 372; In re
J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Undisputed
evidence of just one factor may be sufficient in a particular case to support a finding that
termination is in the best interest of the child. In re M.R.J.M., 280 S.W.3d 494, 507 (Tex.
App.—Fort Worth 2009, no pet.). But the presence of scant evidence relevant to each factor will
not support such a finding. Id. Evidence supporting termination of parental rights is also
probative in determining whether termination is in the best interest of the child. See In re C.H.,
89 S.W.3d at 28-29.
       1.         Analysis
       H.L.F. was approximately seventeen months old at the time of trial and is too young to
express her desires. A.D. had no personal contact with H.L.F. during the pendency of the case,
but had received photographs of H.L.F. from F.N.F.’s mother, S.Y. A.D. also did not present
evidence of any efforts he made to foster a relationship with H.L.F. while he was incarcerated.4
This weighs in favor of termination.
       A.D. testified that he was currently serving a twelve year prison sentence for felony theft,
and had a parole hold for his 2002 second degree felony conviction for the offense of attempted
manufacture of a controlled substance. A.D. confirmed that he did not provide any support for
F.N.F. while she was pregnant, primarily because when he was not incarcerated, F.N.F. was
incarcerated, and when F.N.F. was not incarcerated, A.D. was incarcerated. He also confirmed
that he did not provide support for H.L.F. while she was in E.H.’s and B.H.’s care. This weighs
in favor of termination.
       Although H.L.F. does not have any specialized physical or emotional needs, it is
undisputed that A.D. would be unable to care for or support H.L.F. while he was in prison,
unless his mother helped him. A.D. testified that it is “hard” to be a father “when you’re
incarcerated,” but said that his mother, Marilyn, would “take [his] place” if necessary. Marilyn
       4
           We note that CPS never offered a service plan for A.D. in the current case despite his requests.
                                                          18
testified during the termination trial, but did not address whether she would provide support for
H.L.F. during A.D.’s imprisonment. This weighs in favor of termination.
       A.D. testified that he had a commercial driver’s license that was valid until 2013, an
associate’s degree in business management, and a journeyman’s license that he obtained in 2005
or 2006. He stated that he was confident in his ability to find employment upon his release from
prison, and that he was “one hundred percent” willing and able to use his employment to support
H.L.F He stated further that he would do “whatever it takes” to take care of H.L.F. A.D.
testified that upon his release from prison, he planned to attend classes to maintain his sobriety
from methamphetamine and that he wanted to work up his visitations with H.L.F. from
supervised visitation to joint custody. Despite A.D.’s testimony regarding his ability to provide
for H.L.F. upon his release from prison, his length of imprisonment was speculative in that the
availability of parole was discretionary and all of his plans were contingent upon his release from
prison. Thus, this weighs in favor of termination.
       Testimony revealed that A.D. began using methamphetamine in 1996, but at the time of
trial, had been sober for “almost” two years. A.D. was the father of three children, two of whom
had mothers who were methamphetamine addicts. At the time of trial, A.D. was still married to
the mother of his youngest child, who had previously obtained an emergency protective order
against him. A.D. explained that he found his wife at a known drug house with their child. When
he confronted her and attempted to remove the child from the house, an argument ensued and he
was arrested for domestic violence. But according to A.D., all charges, including the emergency
protective order, were subsequently dismissed. A.D.’s prior arrests for family violence, his
methamphetamine addiction, and involvement with women who have a methamphetamine
addiction also weigh in favor of termination.
       2.      Conclusion
       After viewing the evidence in the light most favorable to the finding, we conclude that a
reasonable trier of fact could have formed a firm belief or conviction that termination of A.D.’s
parental rights was in H.L.F.’s best interest.
       Although there is some conflicting evidence regarding A.D.’s release and his ability to
provide care and support for H.L.F. through his mother while he is in prison, this evidence is not
so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its
                                                 19
finding and formed a firm belief or conviction that termination of A.D.’s parental rights was in
H.L.F.’s best interest. The evidence is both legally and factually sufficient to terminate A.D.’s
parental rights as being in H.L.F.’s best interest. We overrule Appellants’ third issue.


                                          INTERVENOR STANDING
       In their fourth issue, Appellants argue that E.H. and B.H. lacked standing to intervene in
the current case.
Standard of Review and Applicable Law
       We review a trial court’s ruling on a motion to strike an intervention for abuse of
discretion. In re N.L.G., 238 S.W.3d at 829. A trial court abuses its discretion when its decision
is arbitrary or unreasonable. Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex. App.—
Houston [1st Dist.] 2007, no pet.). Any party may intervene by filing a pleading, subject to
being stricken by the court for sufficient cause on the motion of any party. TEX. R. CIV. P. 60.
Generally, an intervenor must show standing to maintain an original suit in order to intervene.
Whitworth, 222 S.W.3d at 621.              But in a suit affecting the parent-child relationship, the
intervenor does not need to plead or prove standing to institute an original suit because managing
conservatorship is already in issue. Id. Section 102.004(b) provides that a court

               may grant a grandparent or other person deemed by the court to have had
               substantial past contact with the child leave to intervene in a pending suit filed
               by a person authorized to do so . . . if there is satisfactory proof to the court that
               appointment of a parent as a sole managing conservator or both parents as joint
               managing conservators would significantly impair the child’s physical health or
               emotional development.

TEX. FAM. CODE ANN. § 102.004(b) (West 2008). The overriding policy in all suits affecting the
parent-child relationship is to protect the best interest of the child. See Whitworth, 222 S.W.3d
at 621. Thus, once the child’s best interest is before the court and being litigated, the trial court
has discretion to determine that the intervention may enhance the trial court’s ability to
adjudicate what is in the best interest of the child. See id. at 622.
Analysis
       H.L.F. was placed with F.N.F.’s cousin, E.H., and her husband, B.H., on February 15,
2010. On September 17, 2010, E.H. and B.H. filed their petition for intervention, alleging that it

                                                        20
was not in H.L.F.’s best interest for either parent to be named as her conservator and sought sole
managing conservatorship of H.L.F. H.L.F. continuously lived with E.H. and B.H. throughout
the pendency of the case and called them “mama” and “daddy.” By the time of trial, H.L.F. had
been living with E.H. and B.H. for over one year. F.N.F. had a history of drug abuse and had
two other children in the Department’s care. Also, H.L.F. had substantial past contact with E.H.
and B.H. Therefore, the trial court did not abuse its discretion in denying F.N.F.’s motion to
strike the E.H.’s and B.H.’s intervention. We overrule Appellant’s fourth issue.


                                                    DISPOSITION
         We have sustained the portion of Appellants’ second issue pertaining to the legal
sufficiency of the evidence to support termination of F.N.F.’s parental rights. Accordingly, we
reverse the judgment of the trial court as it pertains to F.N.F. and render judgment that the
Department’s request for termination of the parent-child relationship between F.N.F. and H.L.F.
is denied. Having overruled Appellants’ remaining issues, we affirm the trial court’s judgment
in all other respects.5
                                                                SAM GRIFFITH
                                                                    Justice


Opinion delivered November 30, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



         5
           We do not alter the portion of the judgment regarding conservatorship of H.L.F. Reversal of a trial
court’s termination judgment does not affect the trial court’s conservatorship appointment absent assigned error. In
re J.A.J., 243 S.W.3d 611, 613 (Tex. 2007) (reversal of termination judgment does not affect unchallenged
conservatorship determination).
                                                          21
                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                        NOVEMBER 30, 2012


                                         NO. 12-11-00243-CV


                           IN THE INTEREST OF H.L.F., A CHILD



                            Appeal from the 354th Judicial District Court
                              of Rains County, Texas. (Tr.Ct.No. 8912)



                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment of the trial court terminating the parental rights of F.N.F. is reversed and
judgment rendered that the request of the Department of Family and Protective Services for
termination of the parent-child relationship between F.N.F. and H.L.F. is denied.
                       It is the opinion of this court that there was no error in the judgment as it
relates to all other matters raised; therefore, it is ORDERED, ADJUDGED and DECREED by
this court that the judgment of the trial court terminating the parental rights of A.D. is affirmed.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                     22
